The Rights of Refugees under International Law [2 ed.] 9781108495899, 9781108863537, 9781108810913

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THE RIGHTS OF REFUGEES UNDER INTERNATIONAL LAW

Second Edition

Do states have a duty to assimilate refugees to their own citizens? Are refugees entitled to freedom of movement, to be allowed to work, to have access to public welfare programs, or to be reunited with family members? Indeed, is there even a duty to admit refugees at all? This fundamentally rewritten second edition of the award-winning treatise presents the only comprehensive analysis of the human rights of refugees set by the UN Refugee Convention and international human rights law. It follows the refugee’s journey from flight to solution, examining every rights issue both historically and by reference to the decisions of senior courts from around the world. Nor is this a purely doctrinal book: Hathaway’s incisive legal analysis is tested and applied to hundreds of protection challenges around the world, ensuring the relevance of this book’s analysis to responding to the hard facts of refugee life on the ground. James C. Hathaway is James E. and Sarah A. Degan Professor of Law and founding director of the Program in Refugee and Asylum Law, University of Michigan. He is the author of The Law of Refugee Status (1991; 2nd ed. 2014, with M. Foster) and editor of Reconceiving International Refugee Law (1997) and Human Rights and Refugee Law (2015). He is also the founding editor of Cambridge Asylum and Migration Studies.

Published online by Cambridge University Press

Published online by Cambridge University Press

THE R IGHTS OF R EFUGEES UNDER I N T E R N A T I O N A L LA W Second Edition

JAMES C. HATHAWAY University of Michigan Law School

Published online by Cambridge University Press

University Printing House, Cambridge CB2 8BS, United Kingdom One Liberty Plaza, 20th Floor, New York, NY 10006, USA 477 Williamstown Road, Port Melbourne, VIC 3207, Australia 314–321, 3rd Floor, Plot 3, Splendor Forum, Jasola District Centre, New Delhi – 110025, India 79 Anson Road, #06–04/06, Singapore 079906 Cambridge University Press is part of the University of Cambridge. It furthers the University’s mission by disseminating knowledge in the pursuit of education, learning, and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/9781108495899 DOI: 10.1017/9781108863537 © James C. Hathaway 2005, 2021 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2005 7th Printing 2018 Second Edition 2021 Printed in the United Kingdom by TJ Books Ltd. Padstow Cornwall A catalogue record for this publication is available from the British Library. ISBN 978-1-108-49589-9 Hardback ISBN 978-1-108-81091-3 Paperback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

Published online by Cambridge University Press

THE RIGHTS OF REFUGEES UNDER INTERNATIONAL LAW

Second Edition

Do states have a duty to assimilate refugees to their own citizens? Are refugees entitled to freedom of movement, to be allowed to work, to have access to public welfare programs, or to be reunited with family members? Indeed, is there even a duty to admit refugees at all? This fundamentally rewritten second edition of the award-winning treatise presents the only comprehensive analysis of the human rights of refugees set by the UN Refugee Convention and international human rights law. It follows the refugee’s journey from flight to solution, examining every rights issue both historically and by reference to the decisions of senior courts from around the world. Nor is this a purely doctrinal book: Hathaway’s incisive legal analysis is tested and applied to hundreds of protection challenges around the world, ensuring the relevance of this book’s analysis to responding to the hard facts of refugee life on the ground. James C. Hathaway is James E. and Sarah A. Degan Professor of Law and founding director of the Program in Refugee and Asylum Law, University of Michigan. He is the author of The Law of Refugee Status (1991; 2nd ed. 2014, with M. Foster) and editor of Reconceiving International Refugee Law (1997) and Human Rights and Refugee Law (2015). He is also the founding editor of Cambridge Asylum and Migration Studies.

Published online by Cambridge University Press

Published online by Cambridge University Press

THE R IGHTS OF R EFUGEES UNDER I N T E R N A T I O N A L LA W Second Edition

JAMES C. HATHAWAY University of Michigan Law School

Published online by Cambridge University Press

University Printing House, Cambridge CB2 8BS, United Kingdom One Liberty Plaza, 20th Floor, New York, NY 10006, USA 477 Williamstown Road, Port Melbourne, VIC 3207, Australia 314–321, 3rd Floor, Plot 3, Splendor Forum, Jasola District Centre, New Delhi – 110025, India 79 Anson Road, #06–04/06, Singapore 079906 Cambridge University Press is part of the University of Cambridge. It furthers the University’s mission by disseminating knowledge in the pursuit of education, learning, and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/9781108495899 DOI: 10.1017/9781108863537 © James C. Hathaway 2005, 2021 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2005 7th Printing 2018 Second Edition 2021 Printed in the United Kingdom by TJ Books Ltd. Padstow Cornwall A catalogue record for this publication is available from the British Library. ISBN 978-1-108-49589-9 Hardback ISBN 978-1-108-81091-3 Paperback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

Published online by Cambridge University Press

THE RIGHTS OF REFUGEES UNDER INTERNATIONAL LAW

Second Edition

Do states have a duty to assimilate refugees to their own citizens? Are refugees entitled to freedom of movement, to be allowed to work, to have access to public welfare programs, or to be reunited with family members? Indeed, is there even a duty to admit refugees at all? This fundamentally rewritten second edition of the award-winning treatise presents the only comprehensive analysis of the human rights of refugees set by the UN Refugee Convention and international human rights law. It follows the refugee’s journey from flight to solution, examining every rights issue both historically and by reference to the decisions of senior courts from around the world. Nor is this a purely doctrinal book: Hathaway’s incisive legal analysis is tested and applied to hundreds of protection challenges around the world, ensuring the relevance of this book’s analysis to responding to the hard facts of refugee life on the ground. James C. Hathaway is James E. and Sarah A. Degan Professor of Law and founding director of the Program in Refugee and Asylum Law, University of Michigan. He is the author of The Law of Refugee Status (1991; 2nd ed. 2014, with M. Foster) and editor of Reconceiving International Refugee Law (1997) and Human Rights and Refugee Law (2015). He is also the founding editor of Cambridge Asylum and Migration Studies.

Published online by Cambridge University Press

Published online by Cambridge University Press

THE R IGHTS OF R EFUGEES UNDER I N T E R N A T I O N A L LA W Second Edition

JAMES C. HATHAWAY University of Michigan Law School

Published online by Cambridge University Press

University Printing House, Cambridge CB2 8BS, United Kingdom One Liberty Plaza, 20th Floor, New York, NY 10006, USA 477 Williamstown Road, Port Melbourne, VIC 3207, Australia 314–321, 3rd Floor, Plot 3, Splendor Forum, Jasola District Centre, New Delhi – 110025, India 79 Anson Road, #06–04/06, Singapore 079906 Cambridge University Press is part of the University of Cambridge. It furthers the University’s mission by disseminating knowledge in the pursuit of education, learning, and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/9781108495899 DOI: 10.1017/9781108863537 © James C. Hathaway 2005, 2021 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2005 7th Printing 2018 Second Edition 2021 Printed in the United Kingdom by TJ Books Ltd. Padstow Cornwall A catalogue record for this publication is available from the British Library. ISBN 978-1-108-49589-9 Hardback ISBN 978-1-108-81091-3 Paperback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

Published online by Cambridge University Press

In memory of Luis Peral Fernández (1967–2019)

Published online by Cambridge University Press

“[D]ecisions had at times given the impression that it was a conference for the protection of helpless sovereign states against the wicked refugee. The draft Convention had at times been in danger of appearing to the refugee like the menu at an expensive restaurant, with every course crossed out except, perhaps, the soup, and a footnote to the effect that even the soup might not be served in certain circumstances.” Mr. Rees, International Council of Voluntary Agencies (Nov. 26, 1951)

“[I]t was clearly in the best interests of refugees that [the Refugee Convention] should be cast in a form which would be acceptable to governments, thus inducing them to accept at least certain commitments . . . Otherwise, they would be obliged to enter reservations which would probably exclude even those minimum commitments. Liberalism which was blind to the facts of reality could only beat the air.” Mr. Rochefort, Representative of France (Nov. 30, 1951)

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CONTENTS

Table of Concordance to the Refugee Convention and Protocol

page xiv

Acknowledgments

xix

Table of Cases

xxii

Table of Treaties and Other International Instruments Abbreviations for Courts and Tribunals Cited

Introduction

l lxvii

1

1 The Evolution of the Refugee Rights Regime

10

1.1 International Aliens Law

10

1.2 International Protection of Minorities

17

1.3 League of Nations Codifications of Refugee Rights

19

1.4 The Convention relating to the Status of Refugees

26

1.4.1 Substantive Rights

29

1.4.2 Reservations

31

1.4.3 Temporal and Geographical Restrictions

35

1.4.4 Duties of Refugees

37

1.4.5 Non-impairment of Other Rights

50

1.5 Post-Convention Sources of Refugee Rights

53

1.5.1 Protocol relating to the Status of Refugees

54

1.5.2 Conclusions and Guidelines on International Protection

56

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viii

c o n te n t s

1.5.3 Regional Refugee Rights Regimes

67

1.5.3.1

African Union

68

1.5.3.2

European Union

72

1.5.3.3

Organization of American States

77

1.5.3.4

League of Arab States

81

1.5.3.5

Association of Southeast Asian Nations

82

1.5.4 International Human Rights Law 1.5.5 Duty not to Discriminate against Non-citizens, including Refugees 1.5.5.1 1.5.5.2 1.5.5.3

84 102

Categorical Approval of Differentiation based on Citizenship

108

Unwarranted Deference to State Assertions of Reasonableness

112

Failure to Ensure Substantive Equality

119

2 An Interactive Approach to Interpreting Refugee Rights

128

2.1 The Perils of “Ordinary Meaning”

134

2.2 Context

139

2.3 Object and Purpose, Conceived as Effectiveness

148

2.4 But What About State Practice?

161

3 The Structure of Entitlement under the Refugee Convention 173 3.1 Attachment to the Asylum State 3.1.1 Subject to a State’s Jurisdiction

181

3.1.2 Physical Presence

193

3.1.3 Lawful or Habitual Presence

196

3.1.4 Lawful Stay

212

3.1.5 Durable Residence

216

3.2 The General Standard of Treatment

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176

219

3.2.1 Assimilation to Aliens

224

3.2.2 Exemption from Reciprocity

225

c o n te n t s

ix

3.2.3 Exemption from Insurmountable Requirements

232

3.2.4 Rights Governed by Personal Status

237

3.3 Exceptional Standards of Treatment

255

3.3.1 Most-Favored-National Treatment

257

3.3.2 National Treatment

261

3.3.3 Absolute Rights

264

3.4 Prohibition of Discrimination between and among Refugees 265 3.5 Restrictions on Refugee Rights

291

3.5.1 Suspension of Rights for Reasons of National Security 292 3.5.2 Exemption from Exceptional Measures

4 Rights of Refugees Physically Present 4.1 Right to Enter and Remain in an Asylum State (Non-refoulement)

303

312 313

4.1.1 Beneficiaries of Protection

340

4.1.2 Nature of the Duty of Non-refoulement

355

4.1.2.1

Non-admittance

357

4.1.2.2

Ejection

359

4.1.2.3

“Voluntary Repatriation”

360

4.1.2.4

Failure to Identify Refugees

362

4.1.2.5

International Zones and Excision

365

4.1.2.6

“Protection Elsewhere” (“First Country of Arrival” and “Safe Third Country”) Regimes

366

“Safe Country of Origin” Rules

375

4.1.2.7

4.1.3 Extraterritorial Refoulement

379

4.1.3.1

Unilateral Extraterritorial Deterrence

379

4.1.3.2

Cooperative Extraterritorial Deterrence

390

4.1.4 Individuated Exceptions

399

4.1.4.1

Danger to National Security

406

4.1.4.2

Danger to the Asylum State Community

413

4.1.4.3

No Balancing Requirement

418

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x

contents

4.1.5 Qualified Duty in the Case of Mass Influx?

423

4.1.6 An Expanded Concept of Non-refoulement?

435

4.1.6.1

Opinio Juris?

441

4.1.6.2

Consistent State Practice?

450

4.1.6.3

Other Duties of Non-refoulement

459

4.2 Freedom from Arbitrary Detention and Penalization for Illegal Entry

464

4.2.1 Beneficiaries of Protection 4.2.1.1 4.2.1.2 4.2.1.3

Presentation to Authorities within a Reasonable Period of Time

492

Breach Necessitated by Urgency of Search for Protection

495

Persons or Organizations Assisting Refugees

507

4.2.2 Non-penalization

511

4.2.3 Expulsion

519

4.2.4 Provisional Detention and Other Restrictions on Freedom of Movement

521

4.2.4.1

Freedom from Arbitrary Detention

523

4.2.4.2

Other Restrictions on Movement

537

4.2.4.3

Mandatory Termination of Refugee Detention and Other Restrictions on Movement

540

Conditions of Detention

547

4.2.4.4

4.3 Physical Security

550

4.3.1 Right to Life

566

4.3.2 Freedom from Torture, Cruel, Inhuman, or Degrading Treatment

571

4.3.3 Security of Person

578

4.4 Necessities of Life

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488

581

4.4.1 Freedom from Deprivation

584

4.4.2 Access to Food and Shelter

594

4.4.2.1

Food

621

4.4.2.2

Water

624

4.4.2.3

Clothing

625

c o n te n t s 4.4.2.4

Housing

4.4.3 Access to Healthcare 4.5 Property Rights

xi 627

630 641

4.5.1 Movable and Immovable Property Rights

645

4.5.2 Tax Equity

656

4.6 Family Rights

664

4.6.1 Family Unity

683

4.6.2 Family Reunification

687

4.7 Freedom of Thought, Conscience, and Religion

697

4.8 Education

730

4.8.1 Elementary Education

745

4.8.2 Secondary and Other Education

757

4.9 Documentation of Identity and Status

765

4.10 Judicial and Administrative Assistance

779

4.10.1 Documentation

792

4.10.2 Access to Courts

797

5 Rights of Refugees Lawfully or Habitually Present 5.1 Protection from Expulsion

809 811

5.1.1 Constraints before Lawful Presence

818

5.1.2 Constraints after Lawful Presence

830

5.1.3 Procedural Constraints on Expulsion

833

5.1.4 Substantive Constraints on Expulsion

841

5.1.5 Right to Non-coercive Departure

856

5.2 Freedom of Residence and Internal Movement

860

5.3 Self-Employment

886

5.4 Intellectual Property Rights

901

5.5 Assistance to Access the Courts

915

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xii

c o n te n t s

6 Rights of Refugees Lawfully Staying 6.1 Right to Work

925 925

6.1.1 Wage-Earning Employment

931

6.1.2 Fair Working Conditions

966

6.1.3 Social Security

978

6.2 Professional Practice

993

6.3 Public Relief and Assistance

1011

6.4 Housing

1028

6.5 Freedom of Expression and Association

1048

6.6 International Travel

1085

7 Rights of Solution

1128

7.1 Repatriation

1134

7.1.1 Fundamental Change of Circumstances

1143

7.1.2 Restoration of Protection

1147

7.1.3 The Risky Notion of “Voluntary Repatriation”

1150

7.1.4 General Declarations of Cessation

1156

7.1.5 Lawful Mandated Repatriation

1161

7.1.6 Compelling Reasons Exception

1171

7.2 Voluntary Reestablishment

1177

7.3 Resettlement

1189

7.4 Naturalization

1206

Appendices 1 Convention relating to the Status of Refugees (1951)

1222

2 Protocol relating to the Status of Refugees (1967)

1238

3 Universal Declaration of Human Rights (1948)

1242

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contents

xiii

4 International Covenant on Civil and Political Rights (1966)

1249

5 International Covenant on Economic, Social and Cultural Rights (1966)

1269

Select Bibliography

1280

Index

1303

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TABLE OF CONCORDANCE TO THE REFUGEE CONVENTION AND PROTOCOL

CONVENTION (1951) Art. 1 Definition 1(A) 1(A)(1) 1(A)(2) 1(B)(1)(a) 1(B)(2) 1(C) 1(C)(1) 1(C)(3) 1(C)(4) 1(C)(5) 1(C)(6) 1(D) 1(E) 1(F) 1(F)(b) 1(F)(c) Art. 2 Duties

35–37 ; 48 n. 146, 54 n. 182, 343, 345, 347, 403, 500, 502, 1102, 1104 n. 1059, 1123 502 51 n. 163, 1171 13 n. 10, 312 n. 1, 343 n. 157, 344, 347 n. 177, 924 n. 664, 1135 n. 39, 1148 n. 96, 1178 n. 231 36 n. 90, 291 n. 632 36 n. 90 31 n. 65, 210 1085, 1188 n. 288 1207 n. 387, 1209 69 n. 261, 1131, 1135, 1136 n. 43, 1178, 1188 n. 288 51 n. 164, 427 n. 615, 1128 n. 8, 1131, 1136–1160, 1171 n. 197, 1172 n. 201, 1173 n. 207, 1174, 1177 427 n. 615, 1128 n. 8, 1131, 1136–1160, 1171 n. 197, 1172 n. 201, 1173 n. 207, 1174, 1177 64, 506 n. 1052, 1128 n. 6 506 n. 1052 292 n. 635, 294, 343 n. 159, 400–406, 430 n. 633 400, 401 nn. 478 and 481, 403–406, 413, 421–423 62 n. 234 38–50; 39 n. 106, 264 n. 485, 722, 866 n. 310

Art. 3 272–276 ; 103, 181 n. 40, 183 n. 53, 233 n. 299, 264 n. 485, Non-discrimination 297 n. 659, 820, 826 Art. 4 Religion

711–717; 42, 193 n. 103, 261 n. 451, 297 n. 659, 820, 826

Art. 5 Non-Convention rights

50–53; 181 n. 40, 221 nn. 243 and 246, 289, 1116 n. 1122

xiv

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table o f conc orda n ce Art. 6 Insurmountable requirements

232–236; 126 n. 528, 181 n. 40, 651 n. 1973, 762 n. 2592

Art. 7 Exemption from reciprocity 7(1)

225–232; 52 n. 173, 221 n. 243, 896, 898

7(2) 7(3) 7(4) 7(5)

xv

181 n. 40, 219–223, 230, 255, 566, 655–656, 797, 894 n. 478, 920 n. 630, 1069 n. 865, 1204 212 n. 193, 216 n. 217, 221 n. 245, 229, 230, 660 n. 2031 221 n. 245, 229 n. 273, 230 n. 280 230 221 n. 245

Art. 8 Exceptional measures

303–311; 29 n. 58, 181 n. 40, 297 n. 659, 426 n. 613

Art. 9 Provisional measures

292–303; 89 n. 397, 194 n. 108, 304, 310, 426, 842, 877

Art. 10 Continuity of residence 10(1) 10(2)

217–218; 229 n. 277 217 n. 223 218 n. 226

Art. 11 Refugee seamen

1098 nn. 1029 and 1030; 1105 n. 1059, 1197 n. 337, 1218 n. 452

Art. 12 Personal status 12(1) 12(2)

237–255; 181 n. 40, 792 n. 2763, 820, 826

Art. 13 Property

645–656; 181 n. 40, 182 n. 44, 221 n. 245, 225 n. 256, 232 n. 291, 820, 826, 893, 973, 1042

Art. 14 Artistic/industrial property

902–915; 210 n. 181, 260 n. 449, 790 n. 2752, 810 n. 4, 919 n. 623

Art. 15 Association

1057–1069; 212 n. 193, 232 n. 293, 257 n. 422, 260 n. 437, 278, 972, 1210 n. 401

Art. 16 Access to courts 16(1)

918–924; 807, 826, 828 n. 106

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237 n. 321, 239 240 n. 336

180 n. 34, 181 n. 40, 182 n. 48, 784–792, 797–808, 820, 915, 919 n. 622, 920

xvi

t a b l e of co n c o r d a n ce

16(2) 16(3)

210 n. 182, 260 n. 449, 790 n. 2752, 810 n. 4, 920–924 920, 921

Art. 17 Employment 17(1) 17(2) 17(2)(a) 17(2)(b) 17(2)(c) 17(3)

931–966 ; 33, 101 n. 446, 212 n. 193, 232 n. 293, 276, 828 n. 107, 876 n. 363, 968 n. 251, 1003, 1008, 1009, 1010 33, 131 n. 25, 257 n. 422, 260 n. 437, 943 n. 101, 956–959, 964 212 n. 193, 217 n. 218, 943 nn. 101 and 107, 958–959, 962, 963 n. 233, 964 216 n. 217, 217 n. 218, 958 nn. 199 and 203, 959 960–961 959 n. 209, 961–963 965–966, 1098 n. 1030

Art. 18 Self-employment

892–901; 101 n. 446, 197 n. 122, 221 n. 245, 225 n. 256, 232 n. 291, 278 n. 550, 876 n. 363, 1004, 1008, 1009, 1010

Art. 19 Liberal professions 19(2)

996–1011; 101 n. 446, 212 n. 193, 221 n. 245, 225 n. 256, 232 n. 291, 278 n. 550, 759, 876 n. 363 868 n. 321, 1005–1007

Art. 20 Rationing

586–594; 181 n. 40, 183 n. 52, 260 n. 449, 276 n. 541, 820, 826

Art. 21 Housing

1037–1048; 212 n. 193, 221 n. 245, 225 n. 256, 232 n. 291, 278 n. 550, 652 n. 1978, 973

Art. 22 Public education 22(1) 22(2)

742–765 ; 75 n. 298, 181 n. 40, 183 n. 50, 221 n. 245, 225 n. 256, 232 n. 291, 276 n. 541, 820, 826 260 n. 449, 745–757 743 n. 2490, 757–765

Art. 23 Public relief

1018–1028, 1040–1041; 212 n. 193, 260 n. 449, 828 n. 107, 983 n. 319

Art. 24 Labor law/social security 24(1) 24(1)(a) 24(1)(b) 24(2) 24(3) 24(4)

966–993; 212 n. 193

Art. 25 Administrative assistance 25(1) 25(2) 25(3) 25(4) 25(5)

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260 n. 449 968 n. 251, 970–978, 1039 981, 982 n. 314, 983, 985–989, 1022 n. 562 984 985, 986, 989–992 985, 986, 992–993, 1098 n. 1030 784–792; 30 n. 59, 264 n. 486, 661 n. 2041, 689 n. 2194, 795, 807, 820, 826, 957 n. 191, 1114, 1210 787–790, 793 n. 2765 787, 792–797 795 n. 2778, 796 661 n. 2041 793 n. 2764

tab l e of c o n cor d a n c e

xvii

Art. 26 Movement

867–886; 71 n. 273, 197 n. 122, 224 n. 255, 232 n. 292, 278 n. 550, 540 n. 1255, 546, 858

Art. 27 Identity papers

769–779; 193 n. 103, 264 n. 486, 661 n. 2041, 793, 820, 826, 1101, 1102

Art. 28 Travel documents 28(1) 28(2) Schedule Schedule [1] Schedule [2] Schedule [3] Schedule [4] Schedule [5] Schedule [6] Schedule [7] Schedule [8] Schedule [9] Schedule [10] Schedule [11] Schedule [13]

1091–1127; 31 n. 66, 48 n. 151, 71 n. 274, 212 n. 193, 264 n. 486, 291 n. 633, 771, 772, 773, 793 772, 1086, 1096, 1099, 1106, 1110, 1113 n. 1107, 1114 n. 1113 773, 1105 n. 1060 1089 n. 999, 1103 n. 1056 1108 n. 1074 1105 n. 1061, 1108 n. 1075 661 n. 2041 1109 n. 1084 1108 nn. 1076 and 1082, 1119 n. 1145 1098 n. 130, 1108 n. 1082, 1109 1104 n. 1059, 1123 1123, 1124 1123, 1125 n. 1177, 1126 661 n. 2041 1107 n. 1068 1108 n. 1076, 1118 n. 1137, 1119 n. 1143, 1120 n. 1148, 1121, 1122, 1123 nn. 1161 and 1165 1118 n. 1137, 1121 n. 1150, 1123, 1126 1101 n. 1042 1101 n. 1041

Schedule [14] Schedule [15] Schedule [16] Art. 29 Fiscal charges 29(2) Art. 30 Asset transfer 30(1) 30(2) Art. 31 Non-penalization 31(1) 31(2)

Art. 32 Non-expulsion 32(1)

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659–664 ; 74 n. 293, 181 n. 40, 182 n. 46, 232 n. 293, 261 n. 450, 276 n. 541, 761 n. 2590, 763 n. 2604, 793 n. 2764, 799 n. 2806, 820, 826, 919 n. 622 661 n. 2041 1195–1206; 29 n. 58, 31 n. 66, 74 n. 293, 652 n. 1975 1201–1203, 1205 n. 380 1098 n. 1030, 1202, 1203 n. 369, 1205 n. 380 484–520; 29 n. 58, 39 n. 106, 73 n. 289, 287, 288, 343 n. 159, 352 n. 202, 403, 466 n. 840, 540, 820, 826, 858 n. 274 193 n. 103, 343 n. 158, 488 n. 961, 489, 506 n. 1050, 508, 512–516, 520 n. 1130, 522, 1086 n. 977 74 n. 296, 131 n. 25, 488 n. 961, 512 n. 1087, 521, 522 n. 1146, 523, 529, 531, 534 n. 1209, 536, 538–546, 811, 858 n. 274, 868, 869 n. 326, 870, 886, 1126, 1196, 1197 n. 333 816–860; 49, 197 n. 122, 204 n. 153, 291 n. 633, 297 n. 659, 403, 520, 1022 n. 566, 1063 n. 832, 1081 n. 948, 1116, 1117, 1196 344, 856

xviii

tab l e of c o n cor d a n c e

32(2) 32(3)

193 n. 103, 834 n. 139, 835 n. 142, 838–841 856 n. 262, 857–859

Art. 33 Non-refoulement

33(2)

337–435; 49, 69 n. 261, 151 n. 108, 181 n. 40, 183 n. 54, 210, 274, 291 n. 633, 297 n. 659, 386, 403, 407 n. 519, 420 n. 573, 428, 429, 435, 442, 443 n. 713, 462, 485, 501 n. 1026, 520, 587, 816, 819, 821, 826, 859, 1117, 1213 n. 422, 1220 344, 346 n. 171, 386, 420 n. 574, 423, 438 n. 680, 821, 1160 n. 146 40 n. 108, 44 n. 126, 69, 399–425, 436 n. 667, 842, 856

Art. 34 Naturalization

1210–1221; 31 n. 67, 74 n. 293, 181 n. 40, 216 n. 215, 820, 826, 1138 n. 54

Art. 35 Cooperation with UNHCR 35(1)

66–67; 58, 146, 780 n. 2705

33(1)

58 n. 208

Art. 38 Dispute settlement

54–55; 176 n. 19

Art. 40 Territorial application

868 n. 321

Art. 41 Federal clause

660 n. 2034

Art. 42 Reservations 42(1)

31–35 30 n. 60, 31, 67 n. 252, 948 n. 130

PROTOCOL (1967) General

54–56; 34–36, 52 n. 174, 59 n. 211, 67 n. 252, 72 n. 285, 78 n. 323, 81, 127–129, 144, 157 n. 135, 176 n. 19, 195 n. 118, 266 n. 496, 291 n. 631, 383 n. 378, 449 n. 746, 502 n. 1028, 526 n. 1164, 823, 1103 n. 1053, 1105 n. 1061, 1207 n. 387

Preamble

141

Art. I: Application

54 n. 182

Art. IV: Dispute settlement

55 n. 184

Art. VII: Reservations 32 n. 70; 31, 34 n. 81 Art. XI: Deposit

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138 n. 50

ACKNOWLEDGMENTS

The preparation of this second edition of The Rights of Refugees under International Law has been generously supported by grants from the University of Michigan’s William W. Cook Legal Research Fund. Dean Mark West has steadfastly supported the faculty’s Program in Refugee and Asylum Law over the course of this writing project, providing me with the perfect academic home. The Faculty Research Service of the University of Michigan Law School, and in particular the personal efforts of Faculty Services & Reference Librarian Virginia Neisler, enabled me to monitor the legal developments that are at the core of this volume. I have received advice and support from my wonderful Michigan Law colleagues Monica Hakimi, Julian Mortenson, Don Regan, Mathias Reimann, and Bruno Simma. I have also benefitted from the thinking of external colleagues Maria Hennessy, Constantin Hrushka, Raza Husain, Nora Markard, Jason Pobjoy, Martin Scheinin, Marina Sharpe, Lili Song, Jinske Verhellen, and Marjoleine Zieck. A special thanks is due to Thomas Gammeltoft-Hansen for generously allowing me to draw here on an analysis he and I prepared jointly of relevant developments in the law of jurisdiction and state responsibility. This is, of course, not just a book about the international and comparative law of refugee protection. It is rather designed as a study of legal norms tested against the hard facts of refugee life on the ground. The original empirical research component of this mixed legal-empirical study was conceived and executed by John Dent, whose work remains at the core of this second edition. It has been updated by a wonderful team of University of Michigan undergraduate students who combed through every available source to find current examples of threats to refugee rights around the world, hundreds of which are drawn upon here. I thank Alyiah Al-Bonjim, Arooshe Giroti, Erin Hahn, Priya Judge, Caitie Kang, Nicole Khamis, Johnny Luo, Emily Mann, Eliana Metni, Kawthar Mohamud, Ivona Popova, Beth Schwartz, Mariah Silverstein, Aparna Sridaran, and Hunter Zhao for their tireless and careful research. I am especially grateful to Brooke Bacigal who painstakingly reviewed all of the empirical examples relied on here to ensure their accuracy. xix

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ack no wledgments

Erin Collins provided superb research assistance on key aspects of emerging international human rights law. My draft analysis was tested by students and research scholars enrolled in our Refugee Rights Workshop, who immeasurably sharpened my thinking. Sincere thanks to Emily Baxter, Shreya Bose, Ching-Yin Chen, Max Cherem, Allison Horwitz, Erin Hoya, Mahalia Kahsay, Erin Liechty, Dario Maestro Navarro, Kara Nassef, Jamila Odeh, Akash Patel, Sonali Perera, Simone Prince-Eichner, Jaelle Richardson, Jessica Riley, Mirjam Streng, and Hannah van Dijcke. I have been fortunate to continue my association with the wonderful Cambridge University Press in the production of this book. Publisher Finola O’Sullivan has championed this book as part of the Press’ ambitious program of refugee and asylum law publications. Marianne Nield kept the administrative wheels turning efficiently. Catherine Smith managed the production process not only with real care and attention, but also with empathy and flexibility. I owe a special debt to editor Diane Ilott with whom I was again privileged to work. Diane’s eye for detail and unstinting commitment to accuracy make her an author’s dream collaborator. Of all the persons who have contributed to my efforts, two deserve particular mention. It is difficult to overstate the contributions of Elizabeth Bundy, who delayed her own legal career after graduation from Michigan Law to work as the Senior Research Associate for this project. Liz engaged with me on every chapter, suggesting just the right empirical examples to test a given legal argument, as well as bringing her legal acumen to bear on the construction of arguments and the framing of my analysis. Such was her commitment to the project that even after entering legal practice she continued on nights and weekends to help me refine the arguments made here – knowing just where and how to push me to do better. I am in Liz’s debt for the energy, intelligence, and good humor she brought to this project. Last but definitely not least I thank Julia Fedeson, my long-suffering executive assistant. Julia has been so much more than an assistant to me. In particular, she took full responsibility to recruit and manage the team of undergraduate students engaged in the empirical research project, and organized the results of their work impeccably. Julia kept our research budget in the black, and responded to every request for assistance unstintingly and with a smile. Her preparedness to support not just me, but all of the team members, was a very special gift. Sadly for me, the finalization of this book coincides with Julia’s decision to move from Ann Arbor with her family to pursue new adventures. I honestly do not know how I will get by without her, but am so grateful for her loyalty over many years. This second edition is dedicated to the memory of Luis Peral Fernández. Luis died tragically and far too young during the summer of 2019. He was like a brother to me, a special person at the core of both my intellectual and personal lives. Luis had a profound belief that creative legal thinking could be harnessed to make a real

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difference in the lives of refugees and other human rights victims. He spent his life working not just in his beloved Madrid but around the world, always determined to find a way to make things better for those on the wrong side of power. He embraced the opportunity to know and care for others, instinctively forgiving the shortcomings of all of us privileged to play a part in his life. My fervent hope is that this book will help others to carry on Luis’ critical mission of ensuring that our response to the arrival of refugees is characterized by both clear thinking and generosity of spirit.

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TABLE OF CASES

I. International decisions International Court of Justice Aegean Sea Continental Shelf Case (Greece v. Turkey), [1978] ICJ Rep 3, 152 n. 114 Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Judgment, [2010] ICJ Rep 639, 168 n. 186 Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia) [2016] ICJ Rep 3, 133 n. 31, 135 n. 37, 152 n. 114 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections, [1996] ICJ Rep 595 (July 11, 1996), 821 n. 72 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, [2007] ICJ Rep 43, 133 n. 31, 394 n. 444, 395 n. 451, 396 n. 458, 398 n. 468, 828 n. 104 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary Objection, [2011] ICJ Rep 70, 152 n. 114 Arbitral Award of 31 July 1989 (Guinea–Bissau v. Senegal), [1991] ICJ Rep 53, 140 n. 63 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), [2005] ICJ Rep 168, 184 n. 58, 185 n. 63 Asylum Case (Colombia v. Peru), [1950] ICJ Rep 266, 140 n. 63, 196 n. 120, 440 n. 693, 452–453 Barcelona Traction, Light and Power Company Limited (Belgium v. Spain), [1970] ICJ Rep 3, 13 n. 12 Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility, [1988] ICJ Rep 69, 152 n. 114 Case Concerning Application of the International Convention on the Elimination of All Forms of Racial Discrimination, Provisional Measures (Georgia v. Russian Federation), [2008] ICJ Rep 353, 185 n. 61 Case Concerning Oil Platforms (Islamic Republic of Iran v. United States of America), Merits, [2003] ICJ Rep 161, 147 n. 90

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Certain Expenses of the United Nations, [1962] ICJ Rep 151, 59 n. 210, 137 n. 44, 142 n. 70, 165 n. 170 Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, [1992] ICJ Rep 240, 191 n. 95, 391 n. 421 Constitution of the Maritime Safety Committee of the Intergovernmental Maritime Consultative Organization (IMCO), [1960] ICJ Rep 4, 137 n. 43 Continental Shelf (Libyan Arab Jamahiriya v. Malta), Judgment, [1985] ICJ Rep 13, 440 n. 696, 450 n. 749, 456 n. 790 Corfu Channel Case, Merits (United Kingdom v. Albania), [1949] ICJ Rep 4, 156 n. 128, 391 n. 421 Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicaragua), [2009] ICJ Rep 213, 133 n. 31, 152 n. 115, 156 n. 125 East Timor (Portugal v. Australia), [1995] ICJ Rep 90, 391 n. 421 Elettronica Sicula (USA v. Italy), [1989] ICJ Rep 15, 152 n. 112 Fisheries Jurisdiction Case (United Kingdom v. Iceland), [1974] ICJ Rep 3, 445 n. 725 Gabčíkovo–Nagymaros Project (Hungary/Slovakia), [1997] ICJ Rep 7, 160 n. 150, 433 n. 648 Judgment No. 273 of the UN Administrative Tribunal, [1982] ICJ Rep 325, 152 n. 112 Land, Island and Maritime Frontier Dispute (El Salvador v. Honduras), [1992] ICJ Rep 351, 136 n. 42 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, [2004] ICJ Rep 136, 154 n. 121, 168 n. 186, 184 n. 58, 185 n. 63, 186 n. 67, 354 nn. 207 and 210, 380 n. 362 Legal Consequences for States of the Continued Presence of South Africa in Namibia notwithstanding Security Council Resolution 276 (1970), [1971] ICJ Rep 6, 143 n. 71, 160 n. 149 Legality of the Threat or Use of Nuclear Weapons, [1996] ICJ Rep 226, 440 n. 696, 445 n. 722, 446 n. 728, 567 n. 1420 Legality of Use of Force (Serbia and Montenegro v. Canada), Preliminary Objections, [2004] ICJ Rep 1307, 136 n. 42 Maritime Dispute (Peru v. Chile), [2014] ICJ Rep 3, 152 n. 114 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Merits, [1986] ICJ Rep 14, 152 n. 116, 191 n. 91, 440 n. 696, 442 n. 704, 444 n. 720, 450 n. 749, 452–453, 456, 458 n. 809 North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands), [1969] ICJ Rep 3, 159 n. 147, 437 n. 670, 440 n. 696, 447 n. 736, 450 n. 748, 452 n. 762 Northern Cameroons Case, [1963] ICJ Rep 15, 151 n. 109 Nuclear Tests (Australia v. France), [1974] ICJ Rep 253, 458 n. 809 Nuclear Tests (New Zealand v. France), [1974] ICJ Rep 457, 458 n. 809 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, [1951] ICJ Rep 15, 34 n. 81, 152 n. 115, 163 n. 162, 441 n. 699

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Rights of Nationals of the United States in Morocco, [1952] ICJ Rep 176, 140 n. 63 Rights of Passage over Indian Territory (Portugal v. India), Preliminary Objections, [1957] ICJ Rep 125, 158 n. 137 South West Africa Case (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, [1962] ICJ Rep 319, 138 n. 54 South West Africa Case (Ethiopia v. South Africa; Liberia v. South Africa), Second Phase, [1966] ICJ Rep 6, 143 n. 71, 150 n. 100 Whaling in the Antarctic (Australia v. Japan, New Zealand intervening), [2014] ICJ Rep 226, 147 n. 91, 155 n. 123

International Criminal Court Situation en Republique Democratique du Congo: Le Procureur c. Germain Katanga et Mathieu Ngudjolo Chui, ICC-01/04–01/07 (June 9, 2011), 438 n. 679

International Criminal Tribunal for the Former Yugoslavia Prosecutor v. Popović et al., IT-05–88-T, Trial Judgment (June 10, 2010), 206 n. 163

Iran–United States Claims Tribunal Islamic Republic of Iran and the United States of America, Award No. 382-B1-FT (Aug. 1988), 162 n. 157

Permanent Court of International Justice Access to German Minority Schools in Upper Silesia, [1931] PCIJ Rep, Series A/B, No. 40, 18 n. 20 Free Zones of Upper Savoy and the District of Gex, [1929] PCIJ Rep, Series A, No. 22, 156 n. 128 Greco-Bulgarian Communities, [1930] PCIJ Rep, Series B, No. 17, 18 n. 20 Mavrommatis Palestine Concessions, [1924] PCIJ Rep, Series A, No. 2, 13 n. 12 Minority Schools in Albania, [1935] PCIJ Rep, Series A/B, No. 64, 18 n. 20 SS “Lotus,” [1927] PCIJ Rep, Series A, No. 10, 441 n. 702

UN Committee Against Torture JHA v. Spain, CAT Comm. No. 323/2007, UN Doc. CAT/C/41/D/323/2007, decided Nov. 11, 2008, 188 n. 77 Sonko v. Spain, CAT Comm. No. 368/2008, UN Doc. CAT/C/47/D/368/2008, decided Nov. 25, 2011, 188 n. 78

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UN Human Rights Committee A v. Australia, HRC Comm. No. 560/1993, UN Doc. CCPR/C/59/D/560/1993, decided April 30, 1997, 288 n. 612, 471 n. 870 Adam v. Czech Republic, HRC Comm. No. 586/1994, UN Doc. CCPR/C/57/D/586/ 1994, decided July 23, 1996, 124 n. 522 Aden and Hassan v. Denmark, HRC Comm. No. 2351/2015, UN Doc. CCPR/C/126/D/ 2531/2015, decided July 25, 2019, 682 n. 2155 Adu v. Canada, HRC Comm. No. 654/1995, UN Doc. CCPR/C/60/D/654/1995, decided July 18, 1997, 802 n. 2830 Ahani v. Canada, HRC Comm. No. 1051/2002, UN Doc. CCPR/C/80/D/1051/2002, decided Mar. 29, 2004, 462 n. 825 Al-Gertani v. Bosnia and Herzegovina, HRC Comm. No. 1955/2010, UN Doc. CCPR/ C/109/D/1955/2010, decided Nov. 1, 2013, 527 n. 1170, 684 n. 2166, 689 n. 2192, 1165 n. 176 Albareda et al. v. Uruguay, HRC Comm. No. 1637/2007, UN Doc. CCPR/C/103/D/ 1637/2007, decided Oct. 4, 2011, 110 n. 474 Alekseev v. Russian Federation, HRC Comm. No. 1873/2009, UN Doc. CCPR/C/109/ D/1873/2009, decided Dec. 2, 2013, 1074 n. 905 Alzery v. Sweden, Comm. No. 1416/2005, UN Doc. CCPR/C/88/D/1416/2005, decided Oct. 25, 2006, 840 n. 170 AS v. Canada, HRC Comm. No. 68/1980, decided Mar. 31, 1981, 121 B and C v. Czech Republic, HRC Comm. No. 1967/2010, UN Doc. CCPR/C/113/D/ 1967/2010, decided Apr. 2, 2010, 125 n. 524 B d. B v. Netherlands, HRC Comm. No. 273/1989, decided Mar. 30, 1989, 287 n. 607 Bakhtiyari v. Australia, HRC Comm. No. 1069/2002, UN Doc. CCPR/C/79/D/1069/ 2002, decided Oct. 29, 2003, 533 n. 1205, 676 n. 2116, 684 n. 2168 Ballantyne and Davidson v. Canada and McIntyre v. Canada, HRC Comm. Nos. 359/ 1989 and 385/1989 (joined on Oct. 18, 1990), UN Docs. CCPR/C/40/D/359/1989 and CCPR/C/40/D/385/1989, decided Mar. 31, 1993, 120 n. 507, 1071 n. 880 Belyatsky v. Belarus, HRC Comm. No. 1296/2004, UN Doc. CCPR/C/90/D/1296/2004, decided July 24, 2007, 1074 n. 908, 1084 n. 969 Bhinder v. Canada, HRC Comm. No. 208/1986, UN Doc. CCPR/C/37/D/208/1986, decided Nov. 9, 1989, 626 n. 1810 Blazek v. Czech Republic, HRC Comm. No. 857/1999, UN Doc. CCPR/C/72/D/857/ 1999, decided July 12, 2001, 124 n. 522, 126 n. 528 Blom v. Sweden, HRC Comm. No. 191/1985, decided Apr. 4, 1998, 113 n. 484 Bodrozic v. Serbia and Montenegro, HRC Comm. No. 1180/2003, UN Doc. CCPR/C/ 85/D/1180/2003, decided Oct. 31, 2005, 1084 n. 966 Borzov v. Estonia, HRC Comm. No. 1136/2002, UN Doc. CCPR/C/81/D/1136/2002, decided Aug. 25, 2004, 114 n. 490

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Brinkhof v. Netherlands, HRC Comm. No. 402/1990, UN Doc. CCPR/C/48/D/402/ 1990, decided July 27, 1993 131, 109 n. 472 Broeks v. Netherlands, HRC Comm. No. 172/1984, decided Apr. 9, 1987, 107 n. 468 Brok v. Czech Republic, HRC Comm. No. 774/1997, UN Doc. CCPR/C/73/D/774/1997, decided Oct. 31, 2001, 124 n. 522 Brough v. Australia, HRC Comm. No. 1184/03, UN Doc. CCPR/C/86/D/1184/2003, decided Mar. 17, 2006, 589 n. 1572 Burgos v. Uruguay, HRC Comm. No. 52/1979, UN Doc. CCPR/C/13/D/52/1979, decided July 29, 1981, 187 nn. 74 and 75, 1074 n. 908, 1080 n. 945 Byahuranga v. Denmark, HRC Comm. No. 1222/2003, UN Doc. CCPR/C/82/D/1222/ 2003, decided Nov. 1, 2004, 1165 n. 176 C v. Australia, HRC Comm. No. 900/1999, UN Doc. CCPR/C/76/D/900/1999, decided Oct. 28, 2002, 533 n. 1205, 575 n. 1480 Cabal and Pasini Bertran v. Australia, HRC Comm. No. 1020/02, UN Doc. CCPR/C/78/ D/1020/2001, decided Aug. 7, 2003, 589 n. 1572 Canepa v. Canada, HRC Comm. No. 558/1993, UN Doc. CCPR/C/59/D/558/1993, decided Apr. 3, 1997, 1210 n. 407 Casanovas v France, HRC Comm. No. 441/1990, UN Doc CCPR/C/51/D/441/1990, decided July 19, 1994, 803 n. 2834 Casariego v. Uruguay, HRC Comm. No. 56/1979, decided July 29, 1981, 187 n. 74, 354 n. 206 Celepli v. Sweden, HRC Comm. No. 456/1991, UN Doc. CCPR/C/51/D/456/1991, decided Mar. 19, 1993, 207 n. 165, 541 n. 1264, 546 n. 1299 Chadzjian v. Netherlands, HRC Comm. No. 1494/2006, UN Doc. CCPR/C/93/D/1494/ 2006, decided July 22, 2008, 804 n. 2835 Choudhary v. Canada, HRC Comm. No. 1898/2009, UN Doc. CCPR/C/109/D/1898/ 2009, decided Oct. 28, 2013, 512 n. 1085 Coleman v. Australia, HRC Comm. No. 1157/2003, UN Doc. CCPR/C/87/D/1157/ 2003, decided Aug. 10, 2006, 1084 n. 966 Danning v. Netherlands, HRC Comm. No. 180/1984, UN Doc. CCPR/C/OP/2 at 205, decided Apr. 9, 1987, 107 n. 468, 108 n. 471, 696 n. 2228 Dauphin v. Canada, HRC Comm. No. 1792/2008, UN Doc. CCPR/C/96/D/1792/2008, decided July 28, 2009, 687 n. 2179 Debreczeny v. Netherlands, HRC Comm. No. 500/1992, UN Doc. CCPR/C/53/D/500/ 1992, decided Apr. 3, 1995, 116 Delgado Paéz v. Colombia, HRC Comm. No. 195/1985, decided July 12, 1990, 579 n. 1513 Derksen v. Netherlands, HRC Comm. No. 976/2001, UN Doc. CCPR/C/80/D/1976/ 2001, decided Apr. 1, 2004, 108 n. 471, 125 n. 525 Dimitrov v. Bulgaria, HRC Comm. No. 1030/2001, UN Doc. CCPR/C/85/D/1030/2001, decided Oct. 28, 2005, 803 n. 2834

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Drake v. New Zealand, HRC Comm. No. 601/1994, UN Doc. CCPR/C/59/D/601/1994, decided Apr. 3, 1997, 114 n. 487 Dranichnikov v. Australia, HRC Comm. No. 1291/2004, UN Doc. CCPR/C/88/D/1291/ 2004, decided Oct. 20, 2006, 802 n. 2830 Drda v. Czech Republic, HRC Comm. No. 1581/2007, UN Doc. CCPR/C/100/D/1581/ 2007, decided Oct. 27, 2010, 123 n. 520 El Dernawi v. Libya, HRC Comm. No. 1143/2002, UN Doc. CCPR/C/98/D/1143/2002, decided July 20, 2007, 688 n. 2185 El-Hichou v. Denmark, HRC Comm. No. 1554/2007, UN Doc. CCPR/C/99/D/1554/ 2007, decided July 22, 2010, 688 n. 2187 Esposito v. Spain, HRC Comm. No. 1359/2005, UN Doc. CCPR/C/89/D/1359/2005, decided Mar. 20, 2007, 803 n. 2834 Evrezov v. Belarus, HRC Comm. No. 1999/2010, UN Doc. CCPR/C/114/D/1988/2010, decided Oct. 10, 2014, 1073 n. 900 Faurisson v. France, HRC Comm. No. 550/1993, UN Doc. CCPR/C/58/D/550/1993, decided Nov. 8, 1996, 1080 n. 939 FJ et al. v. Australia, HRC Comm. No. 2233/2013, UN Doc. CCPR/C/116/D/2233/2013, decided Mar. 22, 2016, 533 n. 1205, 537 n. 1226, 575 n. 1480 FKAG et al. v. Australia, HRC Comm. No. 2094/2011, UN Doc. CCPR/C/108/D/2094/ 2011, decided July 26, 2013, 533 n. 1205, 537 n. 1226, 547 n. 1303, 575 n. 1480 Foin v. France, HRC Comm. No. 666/1995, UN Doc. CCPR/C/67/D/666/1995, decided Nov. 3, 1999, 107 n. 468, 118 n. 502 Gillot v. France, HRC Comm. No. 932/2000, UN Doc. CCPR/C/75/D/932/2000, decided July 15, 2002, 116 n. 493 Giri v. Nepal, HRC Comm. No. 1761/08, UN Doc. CCPR/C/101/D/1761/2008, decided Mar. 24, 2011, 572 n. 1465, 573 n. 1472 Godfried and Pohl v. Austria, HRC Comm. No. 1160/2003, UN Doc. CCPR/C/81/D/ 1160/2003, decided July 9, 2004, 125 n. 524 Gonzalez v. Guyana, HRC Comm. No. 1246/2004, UN Doc. CCPR/C/98/D/1246/2004, decided May 21, 2010, 684 n. 2166, 688 n. 2187 Gueye v. France, HRC Comm. No. 196/1985, decided Apr. 3, 1989, 112 n. 483, 287 n. 610 Haraldsson v. Iceland, HRC Comm. No. 1306/2004, UN Doc. CCPR/C/91/D/1306/24, decided Dec. 14, 2007, 37 n. 94, 116 n. 495 Hartikainen v. Finland, HRC Comm. No. 40/1978, UN Doc. CCPR/C/OP/1, decided Apr. 9, 1981, 730 n. 2422 Hertzberg et al. v. Finland, HRC Comm. No. 61/1979, decided Apr. 2, 1982, 1083 n. 962 Hinostroza Solís v. Peru, HRC Comm. No. 1016/2001, UN Doc. CCPR/C/86/D/1016/ 2001, decided Mar. 27, 2006, 109 n. 473 Hudoyberganova v. Uzbekistan, HRC Comm. No. 931/2000, UN Doc. CCPR/C/82/D/ 931/2000, decided Nov. 5, 2004, 719 n. 2348

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Jalloh v. Netherlands, HRC Comm. No. 794/1998, UN Doc. CCPR/C/74/D/794/1998, decided Mar. 26, 2002, 534 n. 1211 Järvinen v. Finland, HRC Comm. No. 295/1988, UN Doc. CCPR/C/39/D/295/1988, decided July 25, 1990, 118 JB et al. v. Canada, HRC Comm. No. 118/1982, UN Doc. CCPR/C/28/D/118/1982, decided July 18, 1986, 1076 n. 924 JL v. Australia, HRC Comm. No. 491/1992, UN Doc. CCPR/C/45/D/491/1992, decided July 29, 1992, 804 n. 2838 Joslin v. New Zealand, HRC Comm. No. 902/1999, UN Doc. CCPR/C/75/D/902/1999, decided July 17, 2002, 693 nn. 2213 and 2216, 694 n. 2221, 695 n. 2222, 696 n. 2227 JRT and the Western Guard Party v. Canada, HRC Comm. No. 104/1981, UN Doc. Supp. No. 40 (A/38/40) at 231, decided Apr. 6, 1983, 1079 n. 934 Kaba v. Canada, HRC Comm. No. 1465/2006, UN Doc. CCPR/C/98/D/1465/2006, decided May 21, 2010, 803 n. 2833 Kall v. Poland, HRC Comm. No. 552/1993, UN Doc. CCPR/C/60/D/552/1993, decided July 14, 1997, 117 n. 498 Kang v. Republic of Korea, HRC Comm. No. 878/1999, UN Doc. CCPR/C/78/D/878/ 1999 (2003), decided July 15, 2003, 1070 n. 875 Karakurt v. Austria, HRC Comm. No. 965/2000, UN Doc. CCPR/C/74/D/965/2000, decided Apr. 4, 2002, 37 n. 93, 105 n. 462, 111 n. 482 Karker v. France, HRC Comm. No. 833/1998, UN Doc. CCPR/C/70/D/833/1998, decided Oct. 26, 2000, 207 n. 166, 885 n. 421 Kaur v. Canada, HRC Comm. No. 1455/2006, UN Doc. CCPR/C/94/D/1455/2006, decided Oct. 30, 2008, 804 n. 2835 Klain and Klain v. Czech Republic, HRC Comm. No. 1847/2008, UN Doc. CCPR/C/ 103/D/1847/2008, decided Nov. 1, 2011, 123 n. 520 Korneenko v. Belarus, HRC Comm. No. 1553/2007, UN Doc. CCPR/C/95/D/1553/ 2007, decided Mar. 20, 2009, 1083 n. 964 Laptsevich v. Belarus, HRC Comm. No. 780/1997, UN Doc. CCPR/C/68/D/780/1997, decided Mar. 20, 2000, 1071 n. 885 Lee v. Republic of Korea, HRC Comm. No. 1119/ 2002, UN Doc. CCPR/C/84/D/1119/ 2002, decided July 20, 2005, 1080 n. 946 Leghaie v. Australia, HRC Comm. No. 1937/2010, UN Doc. CCPR/C/113/D/1937/ 2010, decided Mar. 26, 2015, 111 n. 481, 689 n. 2192, 837 n. 151 Leirvåg v. Norway, HRC Comm. No. 1155/2003, UN Doc. CCPR/C/82/D/1155/2003, decided Nov. 3, 2004, 730 n. 2422 Lestourneaud v. France, HRC Comm. No. 861/1999, UN Doc. CCPR/C/67/D/861/ 1999, decided Nov. 3, 1999, 114 n. 488 Leven v. Kazakhstan, HRC Comm. No. 2131/2012, UN Doc. CCPR/C/112/D/2131/ 2012, decided Oct. 21, 2014, 714 n. 2305, 716 n. 2319 Love v. Australia, HRC Comm. No. 983/2001, UN Doc. CCPR/C/77/D/983/2001, decided Mar. 25, 2003, 109 n. 473

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Luyeye v. Zaire, HRC Comm. No. 90/1981, decided July 21, 1983, 547 n. 1305 Madafferi v. Australia, HRC Comm. No. 1011/2001, UN Doc. CCPR/C/81/D/1011/ 2001, decided July 26, 2004, 547 n. 1304, 1166 n. 177, 1210 n. 407 Mahuika et al. v. New Zealand, HRC Comm. No. 547/1993, UN Doc. CCPR/C/70/D/ 547/1993, decided Oct. 27, 2000, 801 n. 2821 Maille v. France, HRC Comm. No. 689/1996, UN Doc. CCPR/C/69/D/689/1996, decided July 10, 2000, 118 n. 502 Marais v. Madagascar, HRC Comm. No. 49/1979, decided Mar. 24, 1983, 588 n. 1569 Marcellana and Gumanov v. Philippines, HRC Comm. No. 1560/2007, UN Doc. CCPR/ C/GC/35, Dec. 16, 2014, 1163 n. 163 Maria et al. v. Greece, HRC Comm. No. 1570/2007, UN Doc. CCPR/C/95/1570/2007, decided Mar. 19, 2009, 115 n. 492 Marques de Morais v. Angola, HRC Comm. No. 1128/2002, UN Doc. CCPR/C/83/D/ 1128/2002, decided Mar. 29, 2005, 1084 n. 966 Marz v. Russian Federation, HRC Comm. No. 1425/2005, UN Doc. CCPR/C/97/D/ 1425/2005, decided Oct. 21, 2009, 108 n. 469 McLawrence v. Jamaica, HRC Comm. No. 702/1996, UN Doc. CCPR/C/60/D/702/ 1996, decided Apr. 26, 1996, 537 n. 1222 MGO v. Australia, HRC Comm. No. 1875/2009, UN Doc. CCPR/C/113/D/1875/2009, decided Mar. 26, 2015, 533 n. 1205 MJG v. Netherlands, HRC Comm. No. 267/1987, decided Mar. 24, 1988, 109 n. 472 MMM et al. v. Australia, HRC Comm. No. 2136/2012, UN Doc. CCPR/C/108/D/2136/ 2012, decided July 25, 2013, 533 n. 1205, 575 n. 1480 Nahlik v. Austria, HRC Comm. No. 608/1995, UN Doc. CCPR/C/57/D/608/1995, decided July 22, 1996, 113 n. 486 Neefs v. Netherlands, HRC Comm. No. 425/1990, UN Doc. CCPR/C/51/D/425/1990, decided July 15, 1994, 113 n. 485 Ngambi and Nébol v. France, HRC Comm. No. 1179/2003, UN Doc. CCPR/C/81/D/ 1179/2003, decided July 16, 2004, 694 n. 2219 Njaru v. Cameroon, HRC Comm. No. 1353/2005, UN Doc. CCPR/C/89/D/1353/2005, decided Mar. 19, 2007, 1074 n. 904 Nystrom v. Australia, HRC Comm. No. 1557/2007, UN Doc. CCPR/C/102/D/1557/ 2007, decided July 18, 2011, 1166 n. 177 OJ v. Finland, HRC Comm. No. 419/1990, UN Doc. CCPR/C/40/D/419/1990, decided Nov. 6, 1990, 649 n. 1953 Omo-Amenaghawon v. Denmark, HRC Comm. No. 2288/2013, UN Doc. CCPR/C/ 114/D/2288/2013, decided Sept. 15, 2015, 804 n. 2835 O’Neill v. Ireland, HRC Comm. No. 1314/2004, UN Doc. CCPR/C/87/D/1314/2004, decided July 24, 2006, 115 n. 491 Oord v. Netherlands, HRC Comm. No. 658/1995, UN Doc. CCPR/C/60/D/658/1995, decided July 23, 1997, 107 n. 468, 111 n. 479

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Oulajin and Kaiss v. Netherlands, HRC Comm. Nos. 406/1990 and 426/1990, UN Docs. CCPR/C/46/D/406/1990 and CCPR/C/46/D/426/1990, decided Oct. 23, 1992, 122 Párkány v. Hungary, HRC Comm. No. 410/1990, UN Doc. CCPR/C/41/D/410/1990, decided Mar. 22, 1991, 547 n. 1306 Pepels v. Netherlands, HRC Comm. No. 484/1991, UN Doc. CCPR/C/51/D/484/1991, decided July 15, 1994, 104 n. 455 PK v. Canada, HRC Comm. No. 1234/2003, UN Doc. CCPR/C/89/D/1234/2003, decided Mar. 20, 2007, 804 n. 2835 Pohl v. Austria, HRC Comm. No. 1160/2003, decided July 9, 2004, 287 n. 608 Pons v. Spain, HRC Comm. No. 454/1991, UN Doc. CCPR/C/55/D/454/1991, decided Oct. 30, 1995, 104 n. 455 PPC v. Netherlands, HRC Comm. No. 212/1986, decided Mar. 24, 1988, 119 Prince v. South Africa, HRC Comm. No. 1474/2006, UN Doc. CCPR/C/91/D/1474/ 2006, decided Oct. 31, 2007, 121 n. 509 Q v. Denmark, HRC Comm. No. 2001/2010, UN Doc. CCPR/C/113/D/2001/2010, decided Apr. 1, 2015, 1210 n. 405 Rajan and Rajan v. New Zealand, HRC Comm. No. 820/1998, UN Doc. CCPR/C/78/ DR/820/1998, decided Aug. 6, 2003, 685 n. 2171 Rizvanović et al. v. Bosnia and Herzegovina, HRC Comm. No. 1997/2010, UN Doc. CCPR/C/110/D/1997/2010, decided Mar. 21, 2014, 114 n. 487 Ross v. Canada, HRC Comm. No. 736/1997, UN Doc. CCPR/C/70/D/736/1997, decided Oct. 18, 2000, 1080 n. 940 RTZ v. Netherlands, HRC Comm. No. 245/1987, decided Nov. 5, 1987, 109 n. 472 Sahid v. New Zealand, HRC Comm. No. 893/1999, UN Doc. CCPR/C/77/D/893/1999, decided Apr. 11, 2003, 685 n. 2170 Sayadi and Vinck v. Belgium, HRC Comm. No. 1472/2006, UN Doc. CCPR/C/94/D/ 1472/2006, decided Oct 22, 2008, 515 n. 1107 SB v. New Zealand, HRC Comm. No. 475/1991, UN Doc. CCPR/C/50/D/475/1991, decided Mar. 31, 1994, 123 Shergill et al. v. Canada, HRC Comm. No. 1506/2006, UN Doc. CCPR/C/94/D/1506/ 2006, decided Oct. 30, 2008, 111 n. 479 Shin v. Republic of Korea, HRC Comm. No. 926/2000, UN Doc. CCPR/C/80/D/926/ 2000, decided Mar. 16, 2004, 1082 n. 957 Simunek et al. v. Czech Republic, HRC Comm. No. 516/1992, UN Doc. CCPR/C/54/D/ 516/1992, decided July 19, 1995, 107 n. 468, 123 n. 520, 126 n. 527 Singer v. Canada, HRC Comm. No. 455/1991, UN Doc. CCPR/C/51/D/455/1991, decided July 26, 1994, 120 n. 507 Singh v. France, HRC Comm. No. 1876/2000, UN Doc. CCPR/C/102/D/1876/2009, decided July 22, 2011, 725 n. 2394 Sipin v. Estonia, HRC Comm. No. 1423/2005, UN Doc. CCPR/C/93/D/1423/2005, decided July 9, 2008, 114 n. 490

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Somers v. Hungary, HRC Comm. No. 566/1993, UN Doc. CCPR/C/53/D/566/1993, decided July 23, 1996, 119 n. 503 Sprenger v. Netherlands, HRC Comm. No. 395/1990, UN Doc. CCPR/C/44/D/395/ 1990, decided Mar. 31, 1992, 108 n. 471 Stalla Costa v. Uruguay, HRC Comm. No. 198/1985, decided July 9, 1987, 117 Stewart v. Canada, HRC Comm. No. 538/1993, UN Doc. CCPR/C/58/D/538/1993, decided Nov. 1, 1996, 1210 n. 407, 1212 n. 417 Teesdale v. Trinidad and Tobago, HRC Comm. No. 677/1996, UN Doc. CCPR/C/74/D/ 677/1996, decided Apr. 1, 2002, 104 n. 455 Teitiota v. New Zealand, HRC Comm. No. 2728/2016, UN Doc. CCPR/C/127/D/2728/ 2016, decided Oct. 24, 2019, 461 n. 821 Toonen v. Australia, HRC Comm. No. 488/1992, UN Doc. CCPR/C/50/D/488/1992, decided Mar. 31, 1994, 686 n. 2178 Tsarjov v. Estonia, HRC Comm. No. 1223/2003, UN Doc. CCPR/C/91/D/1223/2003, decided Oct. 26, 2007, 114 n. 490 Van Duzen v. Canada, HRC Comm. No. 50/1979, decided Apr. 7, 1982, 515 n. 1107 Van Meurs v. Netherlands, HRC Comm. No. 215/1986, decided July 13, 1990, 804 n. 2838 Venier and Nicolas v. France, HRC Comm. Nos. 690/1996 and 691/1996, UN Docs. CCPR/C/69/D/690/1996 and CCPR/C/69/D/691/1996, decided July 10, 2000, 118 n. 502 VMRB v. Canada, HRC Comm. No. 236/1987, decided July 18, 1988, 802 n. 2829 Vuolanne v. Finland, HRC Comm. No. 265/1987, decided Apr. 7, 1989, 287 n. 606 Wackenheim v. France, HRC Comm. No. 854/1999, UN Doc. CCPR/C/67/D/854/1999, decided July 15, 2002, 107 n. 468, 114 n. 489 Waldman v. Canada, HRC Comm. No. 694/1996, UN Doc. CCPR/C/67/D/694/1996, decided Nov. 3, 1999, 105 n. 464, 107 n. 468, 729 n. 2416 Warsame v. Canada, HRC Comm. No. 1959/2010, UN Doc. CCPR/C/102/D/1959/ 2010, decided July 21, 2011, 687 n. 2179 Weinberger v. Uruguay, HRC Comm. No. 28/1978, UN Doc. CCPR/C/11/D/28/1978, decided Oct. 29, 1980, 1080 n. 945 Wight v. Madagascar, HRC Comm. No. 115/1982, decided Apr. 1, 1985, 588 n. 1569 Winata v. Australia, HRC Comm. No. 930/2000, UN Doc. CCPR/C/72/D/930/2000, decided July 26, 2001, 685 n. 2171, 1167 n. 179 X v. Colombia, HRC Comm. No. 1361/2005, UN Doc. CCPR/C/89/D/1361/2005, decided Mar. 30, 2007, 108 n. 471, 118 n. 502, 696 n. 2228 X v. Czech Republic, HRC Comm. No. 1961/2010, UN Doc. CCPR/C/113/D/1961/ 2010, decided Apr. 2, 2015, 124 n. 523 X v. Denmark, HRC Comm. No. 2007/2010, UN Doc. CCPR/C/110/D/2007/2010, decided May 12, 2014, 804 n. 2835 X and X v. Denmark, HRC Comm. No. 2186/2012, UN Doc. CCPR/C/112/D/2186/ 2012, decided Oct. 22, 2014, 111 n. 480

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Yachnik v. Belarus, HRC Comm. No. 1990/2010, UN Doc. CCPR/C/111/D/1990/2010, decided July 21, 2014, 121 n. 510 YL v. Canada, HRC Comm. No. 112/1981, decided Apr. 8, 1986, 803 n. 2834, 804 n. 2838 Young v. Australia, HRC Comm. No. 941/2000, UN Doc. CCPR/C/78/D/941/2000, decided Aug. 6, 2003, 118 n. 502, 696 n. 2228 Zavrel v. Czech Republic, HRC Comm. No. 1615/2007, UN Doc. CCPR/C/99/D/1615/ 2007, decided July 27, 2010, 123 n. 520 Zundel v. Canada, HRC Comm. No. 1341/2005, UN Doc. CCPR/C/89/D/1341/2005, 803 n. 2834 Zwaan-de Vries v. Netherlands, HRC Comm. No. 182/1984, decided Apr. 9, 1987, 107 n. 468

World Trade Organization Canada – Term of Patent Protection, WT/DS170/R (WTO AB, Oct. 2000) as upheld by the Appellate Body Report, WT/DS170/AB/R, DSR 2000:X and DSR 2000:XI, 156 n. 128 Japan – Alcoholic Beverages II, WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R (WTO AB, Oct. 4, 1996), 161 n. 155 Korea – Definitive Safeguard Measure on Imports of Certain Dairy Products, WT/ DS98/AB/R (WTO AB, Dec. 14, 1999), 206 n. 159 United States – Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/ AB/R (WTO AB, Oct. 12, 1998), DSR 1998:VII, 159 n. 146 United States – Sections 301–310 of the Trade Act of 1974, WT/DS152/R (WTO Panel, Jan. 27, 2000), 458 n. 809 United States – Standards for Reformulated and Conventional Gasoline, WT/DS2/AB/ R (WTO AB, Apr. 29, 1996), 206 n. 159

II. Regional Decisions African Commission on Human and Peoples’ Rights Malawi African Association et al. v. Mauritania, Comm. No. 4/9 (May 11, 2000), 637 n. 1876 Social and Economic Rights Action Center and Center for Economic and Social Rights v. Nigeria, Case No. ACPHR/COMM/A044/1 (May 27, 2002), 622 n. 1772, 627 n. 1814

Court of Justice of the European Union A and S v. Staatssecretaris van Veiligheid en Justitie, C-550/16 (Apr. 12, 2018), 687 n. 2180 Abdulla v. Germany, C-175/08, C-176/08, C-178/08 and C-179/08, [2010] ECR I-01493 (Mar. 2, 2010), 132 n. 28, 1141 n. 64, 1142 nn. 68 and 69

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Abdullahi v. Austria, C-394/12 (Dec. 10, 2013), 370 n. 314 Ahmedbekova et al. v. Bulgaria, C-652/16 (Oct. 4, 2018), 675 n. 2109, 676 n. 2117 Al Chodor v. Czech Republic, C-528/15 (Mar. 15, 2017), 532 n. 1201, 537 n. 1224 Arslan v. Czech Republic, C-534/11 (May 30, 2013), 201 n. 141 Ayubi v. Austria, C-713/17 (Nov. 21, 2018), 1023 n. 568, 1024 n. 577 B and D v. Germany, C-57/09 and C-101/09 (June 1, 2010), Opinion of Advocate General Mengozzi, 63 n. 236 (Nov. 9, 2010), Judgment, 406 n. 507, 423 n. 584 Bolbol v. Germany, C-31/09 (Mar. 4, 2010), Opinion of Advocate General Sharpston 114n218, 121n244; (June 17, 2010), Judgment, 63 n. 237 CIMADE and GISTI v. Ministry of the Interior, C-179/11 (Aug. 1, 2011), 201 n. 143 CK v. Slovenia, C-578/16 PPU (Feb. 16, 2017), 76 n. 305, 330 n. 102, 370 n. 314, 375 n. 337, 637 n. 1880, 823 n. 81 Coman and Hamilton v. Romania, C-673/16 (June 5, 2018), 695 n. 2225 E v. Netherlands, C-635/17 (Mar. 13, 2019), 680 n. 2141, 689 n. 2194 European Commission v. Republic of Poland, C-715/17, C-718/17 and C-719/17 (Apr. 2, 2020), 411 n. 537 European Parliament v. Council of the European Union, C-540/03 (June 27, 2006), 689 n. 2191 HIE and BA v. Refugee Applications Commissioner, C-175/11 (Jan. 13, 2013), 281 n. 570 HT v. Land Baden-Württemberg, C-373/13 (June 24, 2015), 294 n. 643, 299 n. 669, 403 n. 490, 407 n. 517, 418 n. 563, 854 n. 251, 878 n. 372, 882 n. 397, 1115 n. 1118, 1215 n. 431 JN v. Staatssecretaris voor Veiligheid en Justitie, C-601/15 PPU (Feb. 15, 2016), 200 n. 136, 299 n. 669, 526 n. 1163, 528 n. 1174, 532 n. 1201, 873 n. 346, 882 n. 397, 884 n. 414 K v. Netherlands, C-331/16 (May 2, 2018), 299 n. 669, 882 n. 397 Kreis Warendorf v. Ibrahim Alo and Amira Osso v. Region Hannover, C-443/14 and C-444/14 (Mar. 1, 2016), 73 n. 290, 132 n. 28, 235 n. 312, 690 n. 2199, 882 n. 399, 1020 n. 550 LH v. Hungary, C-564/18 (Mar. 19, 2020), 372 n. 317, 800 n. 2814, 806 n. 2848 M v. Czech Republic, X and X v. Belgium, C-391/16, C-77/17, and C-78/17 (May 14, 2019), 179 n. 32, 208 n. 168, 294 n. 643, 400 n. 475, 462 n. 824 Minister van Buitenlandse Zaken v. K and A, C-153/14 (July 9, 2015), 690 n. 2195 NS v. Secretary of State for the Home Department, C-411/10 and C-493/10 (Dec. 21, 2011), 76 n. 304, 330 n. 103, 370 n. 314, 375 n. 337, 823 n. 80 PG v. Hungary, C-406 (Mar. 19, 2020), 800 n. 2814 Qurbani v. Germany, C-481/13 (July 17, 2014), 73 n. 289, 74 n. 293 Sacko v. Italy, C-348/16 (July 26, 2017), 805 n. 2841 Secretary of State for the Home Department v. Muhammad Sazzadur Rahman, C-83/11 (Sept. 5, 2012), 697 n. 2232 Swaddling v. Adjudication Officer, C-90/97 (Feb. 25, 1999), 919 n. 627

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Urbing-Adam v. Administration de l’Enregistrement et des Domaines, C-267/99 (Oct. 11, 2001), 1008 n. 470 X v. Netherlands, C-175/17 (Sept. 26, 2018), 800 n. 2814 X and X v. Belgium, C-636/16 PPU (Feb. 7, 2017), Opinion of Advocate General Mengozzi 544n136; (Mar. 7, 2017), Judgment, 339 n. 136

European Commission on Human Rights Freda v. Italy, (1980) 21 DR 250 (Oct. 7, 1980), 187 n. 74 Hess v. United Kingdom, (1975) 2 DR 72 (May 28, 1975), 187 n. 72, 191 n. 93 Ramirez v. France, (1996) 86-B DR 155 (June 24, 1996), 187 n. 74 Reinette v. France, (1989) 63 DR 189 (Oct. 2, 1989), 187 n. 74 W v. Ireland, [1983] ECHR 17 (Feb. 28, 1983), 187 n. 71 WM v. Denmark, (1992) 73 DR 193 (Oct. 14, 1992), 186 n. 70, 187 n. 71 X v. Federal Republic of Germany, 1611/62 (Sept. 25, 1965), 187 n. 71 X v. United Kingdom, (1977) 12 DR 73 (Dec. 15, 1977), 187 n. 71

European Court of Human Rights Al-Jedda v. United Kingdom, (2011) 53 EHRR 23 (July 7, 2011), 187 n. 71, 395 n. 447 Al-Saadoon and Mufdhi v. United Kingdom, (2010) 51 EHRR 9 (Mar. 2, 2010), 123 n. 520, 159 n. 143, 187 nn. 71 and 76 Al-Skeini et al. v. United Kingdom, (2011) 53 EHRR 18 (July 7, 2011), 187 n. 76, 189 n. 80, 192 n. 96, 391 n. 422, 392 n. 430 Amuur v. France, [1996] ECHR 25 (June 25, 1996), 195 n. 116, 206 n. 161, 366 n. 294, 525 n. 1158, 811 n. 16 Austria v. Italy, 788/60, 4 Eur. YB HR 116 (Jan. 11, 1961), 174 n. 5 Banković et al. v. Belgium et al., (2001) 11 BHRC 435 (Dec. 12, 2001), 183 n. 56, 184 n. 57, 185 n. 63, 187 n. 71, 395 n. 447 Behrami v. France, (2007) 45 EHRR 85 (May 31, 2007), 393 n. 436 Bouyid v. Belgium, [2015] ECHR 819 (Sept. 28, 2015), 573 n. 1471, 577 n. 1498 Chahal v. United Kingdom, (1996) 23 EHRR 413 (Nov. 15, 1996), 420 n. 574, 462 n. 825, 840 Cruz Varas v. Sweden, (1991) 14 EHRR 1 (Mar. 20, 1991), 164 n. 169 Cyprus v. Turkey, (2001) 35 EHRR 30 (May 10, 2001), 183 n. 56, 186 n. 68 Demir and Baykara v. Turkey, 34503/97 (Nov. 12, 2008), 162 n. 161 Drozd v. France, [1992] ECHR 52 (July 26, 1992), 391 n. 423 Egyház v. Hungary, 41463/12 (Sept. 8, 2014), 714 n. 2311 Golder v. United Kingdom, (1975) 1 EHRR 524 (Feb. 21, 1975), 136 n. 41 GR v. Netherlands, 22251/07 (Jan. 10, 2012), 689 n. 2194 Hassan v. United Kingdom, [2014] ECHR 1145 (Sept. 16, 2014), 187 n. 72

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Hirsi Jamaa v. Italy, (2012) 55 EHRR 21 (Feb. 23, 2012), 186 n. 65, 192 n. 96, 320 n. 47, 371 n. 315, 379, 381 n. 370, 386 n. 392, 391 n. 422, 395 n. 446, 397 n. 460 Ilaşcu et al. v. Moldova and Russia, (2005) 40 EHRR 46 (July 8, 2004), 192 n. 97, 391 n. 423 Issa et al. v. Turkey, (2004) 41 EHRR 567 (Nov. 16, 2004), 186 n. 69, 187 n. 75 Jabari v. Turkey, [2000] ECHR 368 (July 11, 2000), 495 n. 998 Jaloud v. Netherlands, [2014] ECHR 1292 (Nov. 20, 2014), 189 n. 82, 190 n. 85, 192 n. 98, 391 n. 424, 395 n. 447 James v. United Kingdom, (1986) 8 EHRR 123 (Feb. 21, 1986), 152 n. 112 JK v. Sweden, 59166/12 (ECtHR, Aug. 23, 2016), 461 n. 822 Khlaifia and Others v. Italy, 16483/12 (Dec. 15, 2016), 577n1493,1496 Klass v. Germany, (1979) 2 EHRR 214 (Sept. 6, 1978), 164 n. 166 KRS v. United Kingdom, 32733/08 (Dec. 2, 2008), 828 n. 108 Loizidou v. Turkey, (1996) 23 EHRR 513 (Dec. 18, 1996), 185 n. 63 Loizidou v. Turkey (Preliminary Objections), ECHR Series A, No. 310 (Feb. 23, 1995), 162 n. 161 Mamatkulov v. Turkey, 46827/99 and 46951/99 (Feb. 4, 2005), 828 n. 108 Medvedyev et al. v. France, (2010) 51 EHRR 39 (Mar. 29, 2010), 187 n. 71 MSS v. Belgium and Greece, (2011) 53 EHRR 28 (Jan. 21, 2011), 76 n. 303, 192, 374 n. 331, 391, 573 n. 1471, 588 n. 1567, 788 n. 2741, 823 n. 79 Mugenzi v. France, 22251/07 (Jan. 10, 2012), 688 n. 2186 ND and NT v. Spain, 86715/15 and 8697/15 (Feb. 13, 2020), 180 n. 36, 184 n. 57, 193 n. 103, 195 n. 117, 338 n. 134, 340 n. 142, 342 n. 155, 358 n. 228, 379 n. 355, 409 n. 526, 430 n. 635 Öcalan v. Turkey, [2005] ECHR 282 (May 12, 2005), 159 n. 143, 187 n. 74, 392 n. 431 Omwenyeke v. Germany, 44294/04 (Nov. 20, 2007), 202 n. 145 Pajić v. Croatia, 68453/13 (May 23, 2016), 695 n. 2224 Pisari v. Republic of Moldova and Russia, [2015] ECHR 403 (Apr. 21, 2015), 190 n. 83, 191 n. 90 Pretty v. United Kingdom, (2002) 35 EHRR 1 (Apr. 29, 2002), 576 n. 1489 Saadi v. Italy, (2009) 49 EHRR 30 (Feb. 28, 2008), 421 n. 577 Saadi v. United Kingdom, 13229/03 (Jan. 29, 2008), 65, 536 n. 1218 Schalk and Kopf v. Austria, 30141/04 (June 24, 2010), 695 n. 2224 Soering v. United Kingdom, (1989) 11 EHRR 439 (July 7, 1989), 164 n. 169, 393 n. 439 Stocke v. Germany, (1991) 13 EHRR 839 (Mar. 19, 1991), 187 n. 74 Tanda-Muzinga v. France, 2260/10 (July 10, 2014), 688 n. 2186 Tarakhel v. Switzerland, (2015) 60 EHRR 28 (Nov. 4, 2014), 370 n. 314 TI v. United Kingdom, [2000] INLR 211 (Mar. 7, 2000), 370 n. 313, 392 Tuquabo Takle v. Netherlands, 60665/00 (Dec. 1, 2005), 688 n. 2184 Tyrer v. United Kingdom, (1978) 2 EHRR 1 (Apr. 25, 1978), 159 n. 143 Wemhoff v. Germany, (1968) 1 EHRR 55 (June 27, 1968), 164 n. 166 Xhavara v. Italy, 39473/98 (Jan. 11, 2001), 393

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Inter-American Commission on Human Rights Coard v. United States, Case 10.951, Report 109/99 (Sept. 29, 1999), 185 n. 63 Doe et al. v. Canada, Case 712.586, Report 78/11 (July 21, 2011), 330 n. 101 Haitian Centre for Human Rights et al. v. United States, Case 10.675, Report No. 51/96 (Mar. 13, 1997), 384 n. 383 Salas et al. v. United States, Case 10.573, Report 31/93 (Oct. 4, 1993), 185 n. 63

Inter-American Court of Human Rights Article 55 of the American Convention on Human Rights (Advisory Opinion OC-20/ 09), Ser. A No. 20 (Sept. 29, 2009), 138 n. 55 Effect of Reservations on the Entry Into Force of the American Convention on Human Rights (Arts. 74 and 75), (Advisory Opinion OC-2/82) (Sept. 24, 1982), 174 n. 5 Environment and Human Rights (Advisory Opinion OC-23/17), Ser. A No. 23 (Nov. 15, 2017), 185 n. 63 Juridical Condition and Rights of Undocumented Workers (Advisory Opinion OC-18/ 03) (Sept. 17, 2003), 969 n. 254 Pacheco Tineo v. Bolivia (Merits Judgment), Ser. C No. 272 (Nov. 25, 2013), 80, 129 n. 16, 179 n. 30 Proposed Amendments to the Naturalization Provisions of the Constitution of Costa Rica (Advisory Opinion OC-4/84), Ser. A No. 4 (Jan. 19, 1984), 138 n. 55 Restrictions to the Death Penalty (Arts. 4(2) and 4(4) American Convention on Human Rights) (Advisory Opinion OC-3/83) (Sept. 8, 1983), 174 n. 5 Riffo v. Chile (Merits Judgment), Ser. C No. 239 (Feb. 24, 2012), 682 n. 2157 Right to Information on Consular Assistance in the Framework of the Guarantees of Due Process of Law (Advisory Opinion OC-16/99), Ser. A No. 16 (Oct. 1, 1999), 162 n. 160 Rights and Guarantees of Children in the Context of Migration and/or in Need of International Protection (Advisory Opinion OC-21/14) (Aug. 19, 2014), 682 n. 2157 Santo Domingo Massacre v. Colombia (Merits Judgment), Ser. C No. 259 (Nov. 30, 2012), 567 n. 1423, 569 n. 1441 Velásquez-Rodríguez v. Honduras (Merits Judgment), Ser. C No. 4 (July 29, 1988), 162 n. 160, 569 n. 1441, 571 n. 1460

III. National Decisions Australia “A” and Another, (1997) 190 CLR 225 (Aus. HC, Feb. 24, 1997), 139 n. 56 Ahmed, 55 ALD 618 (Aus. FFC, June 21, 1999), 1144 n. 79 AIB16, [2017] FCAFC 163 (Aus. FFC, Oct. 16, 2017), 486 n. 952

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Al Masri, (2003) 197 ALR 241 (Aus. FFC, Apr. 15, 2003), 158 n. 142, 532 n. 1204 Armstead v. Armstead, [1954] Vic LR (Aus. Vic. SC, Sept. 3, 1954) 733, 246 n. 366 B and B, [2004] HCA 20 (Aus. HC, Apr. 29, 2004), 158 n. 142, 533 n. 1205 Betkoshabeh, (1998) 157 ALR 95 (Aus. FC, July 29, 1998), reversed on grounds of mootness at (1999) 55 ALD 609 (Aus. FFC, July 20, 1999), 414 n. 547 C, [2001] FCA 1332 (Aus. FFC, Sept. 18, 2001), 372 n. 317 Chen Shi Hai, (2000) 170 ALR 553 (Aus. HC, Apr. 13, 2000), 171 n. 198 CPCF, [2015] HCA 1 (Aus. HC, Jan. 28, 2015), 385 n. 390, 386 n. 391 CR1026 v. Republic of Nauru [2018] HCA 19 (Aus. HC, May 16, 2018), 460 n. 820 Ibrahim, [2000] HCA 55 (Aus. HC, Oct. 26, 2000), 385 n. 390 Khawar, [2002] HCA 14; 2010 CLR 1 (Aus. HC, Apr. 11, 2002), 137 n. 47, 194 n. 104, 337 n. 132, 339 n. 137, 340 n. 142, 344 n. 165, 821 n. 74 Le, [2016] FCAFC 120 (Aus. FFC, Sept. 9, 2016), 178 n. 25 M38/2002, [2003] FCAFC 131 (Aus. FFC, June 13, 2003), 338 n. 136, 345 n. 169 M61/2010 and M69/2010, [2010] HCA 41 (Aus. HC, Nov. 11, 2010), 490 n. 969 M70/2011, (2011) 244 CLR 144 (Aus. HC, Aug. 31, 2011), 173 n. 2, 178 n. 27, 180 n. 34, 822 n. 76 M47/2012, [2012] HCA 46 (Aus. HC, Oct. 5, 2012), 198 n. 128, 203 n. 152 M150/2013, [2014] HCA 25 (Aus. HC, June 20, 2014), 783 n. 2720, 788 n. 2737, 875 n. 356 MZQAP, [2005] FCAFC 35 (Aus. FFC, Mar. 15, 2005), 174 n. 5 MZZXS, [2015] FCA 1384 (Aus. FC, Dec. 4, 2015), 372 n. 317 NADB of 2001, [2002] FCAFC 326 (Aus. FFC, Oct. 31, 2002), 61 n. 228, 64 n. 242, 422 n. 583 NAGV and NAGW of 2002, [2005] HCA 6 (Aus. HC, Mar. 2, 2005), 38 n. 102, 174 n. 5, 821 n. 73, 825 n. 90 NBGM, [2006] FCAFC 60, (2006) 231 CLR 52 (Aus. FFC, May 12, 2006), 60 n. 219, 61 n. 227, 1140 n. 62, 1145 n. 83, 1147 n. 88 NBMZ, [2014] FCAFC 38 (Aus. FFC, Apr. 9, 2014), 203 n. 152, 338 n. 136, 342 n. 150, 368 n. 304, 402 n. 485, 418 n. 566, 489 n. 967, 530 n. 1187, 788 n. 2737, 1216 n. 440, 1220 n. 459 Nguyen, [2004] FCA 757 (Aus. FC, June 17, 2004), 178 n. 25 QAAH of 2004, [2005] FCAFC 136 (Aus. FFC, July 27, 2005), 139 n. 56, 140 n. 60, 1139 n. 57, 1145 n. 82, 62 n. 232, 179 n. 29, 1140 n. 62, 1145 n. 82 QAAH of 2004, [2006] HCA 53 (Aus. HC, Nov. 15, 2006), 58 n. 206, 62 nn. 232 and 235, 179, 1139 n. 57, 1140 n. 62, 1145 nn. 82 and 83 Rajendran, (1998) 166 ALR 619 (Aus. FFC, Sept. 4, 1998), 198 n. 128, 200 n. 137, 339 n. 139 Rezaei, [2001] FCA 1294 (Aus. FC, Sept. 14, 2001), 1188 n. 287 Ruddock v. Vadarlis, (2001) 110 FCR 491 (Aus. FFC, Sept.18, 2000), 340 n. 142 S, [2002] FCAFC 244 (Aus. FFC, Aug. 21, 2002), 64 n. 241 S4/2014, [2014] HCA 34 (Aus. HC, Sept. 11, 2014), 525 n. 1160, 530 n. 1187

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S134/2002, Re, (2003) 195 ALR 1 (Aus. HC, Feb. 4, 2003), 676 n. 2116 S156/2013, [2014] HCA 22 (Aus. HC, June 18, 2014), 333 n. 117, 389 n. 409 S157/2002, [2003] HCA 2 (Aus. HC, Feb. 4, 2003), 806 n. 2849 S195/2016, [2017] HCA 31 (Aus. HC, Aug. 17, 2017), 526 n. 1163 Sahak, [2002] FCAFC 215 (Aus. FFC, July 18, 2002), 106 n. 465, 284 n. 588 Savvin, (2000) 171 ALR 483 (Aus. FFC, Apr.12, 2000), 54 n. 183, 345 n. 169 Semunigus, [1999] FCA 422 (Aus. FC, Apr. 14, 1999), 146 n. 87 Singh, (2002) 186 ALR 393 (Aus. HC, Mar. 7, 2002), 181 n. 39 SZMDS, (2010) 240 CLR 611 (Aus. HC, May 26, 2010), 1187 n. 281 SZUSU, [2016] FCAFC 50 (Aus. FFC, Mar. 31, 2016), 372 n. 317 SZVCH, [2016] FCAFC 127 (Aus. FFC, Sept. 14, 2016), 200 n. 137 Teoh, (1995) 183 CLR 273 (Aus. HC, Apr. 7, 1995), 679 n. 2138, 1167 n. 181 Tharmalingam, BC9905456 (Aus. FFC, Aug. 26, 1999), 371 n. 316 Todea, (1994) 20 AAR 470 (Aus. FFC, Dec. 2, 1994), 61 n. 228 V872/00A, [2002] FCAFC 185 (Aus. FFC, June 18, 2002), 339 n. 138, 371 n. 316 WAGH, (2003) 131 FCR 269 (Aus. FFC, Aug. 27, 2003), 826 n. 92 WAGO of 2002, 194 ALR 676 (Aus. FFC, Dec. 20, 2002), 61 n. 226 WAKN, (2004) 138 FCR 579 (Aus. FC, Sept. 23, 2004), 407 n. 515 Wan, (2001) 107 FCR 133, 1166 n. 178 Woolley, Ex parte Applicant M276/2003, [2004] HCA 49 (Aus. HC, Oct. 7, 2004), 529 n. 1179, 533 n. 1205 Wu and Wu, [1994] Fam. CA 45 (Aus. FC, May 3, 1994), 246 n. 364

Austria 91/19/0187 (Au. HC, Nov. 25, 1991), 500 n. 1019 SW, 201.440/0-II/04/98 (Au. UBAS, Mar. 20, 1998), 212 n. 192

Belgium Court of Arbitration Judgment 20/93 of Mar. 25, 1993, 378 n. 352

Canada Abadi, [2016] FC 29 (Can. FC, Jan. 8, 2016), 1188 n. 288 Appulonappa, [2015] SCC 59; [2015] 3 SCR 754 (Can. SC, Nov. 27, 2015), 482 n. 926, 508 n. 1061 Arguello Garcia, (1993) FCJ 635 (Can. FC, June 23, 1993), 1175 n. 221 B010, [2015] SCC 58; [2015] 3 SCR 704 (Can. SC, Nov. 27, 2015), 131 n. 23, 509 n. 1063, 516 n. 1109 Baker, [1999] 2 SCR 817 (Can. FCA, Dec. 14, 1992), 1167 n. 181 C89-00332, (1991) 5 RefLex (Can. IRB, Aug. 27, 1991), 1187 n. 281

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Boateng, (1993) 65 FTR 81 (Can. FCA, June 1, 1993), 1147 n. 89 Canadian Council for Refugees et al., [2007] FC 1262 (Can. FC, Nov. 29, 2007), 331 n. 105 Canadian Council for Refugees, [2008] FCA 229 (Can. FCA, June 27, 2008), 331 n. 105, 338 n. 136 Cardenas, [1994] FCJ 139 (Can. FCTD, Feb. 4, 1994), 407 n. 515 Chan, [1995] 3 SCR 593 (Can. SC, Oct. 19, 1995), 60 n. 220, 61 n. 224 Chavez-Menendez, (1994) 81 FTR 271 (Can. FCTD, June 16, 1994), 1147 n. 87 Diallo, [2014] FC 471 (Can. FC, May 14, 2014), 818 n. 1082 Febles, [2014] SCC 68 (Can. SC, Oct. 30, 2014), 149 n. 99, 153 n. 119, 401 n. 481, 404 n. 495, 405 n. 505 Gavrila, [2010] SCC 57 (Can. SC, Nov. 25, 2010), 400 n. 477 George, [2014] FC 535 (Can. FC, June 3, 2014), 493 n. 989 Hassanzadeh-Oskoi, [1993] FCJ 644 (Can. FCTD, June 25, 1993), 1139 n. 55 Hess, [1990] 2 SCR 906 (Can. SC, Oct. 4, 1990), 116 n. 496 Heywood, [1994] 3 SCR 761 (Can. SC, Nov. 10, 1994), 116 n. 496 Ishaq, [2015] FCA 194 (Can. FCA, Sept. 15, 2015), 699 n. 2244 Kanakasingam, [2017] FC 457 (Can. FC, May 5, 2017), 1145 n. 81 Karakaya, [2014] FC 777 (Can. FC, Aug. 5, 2014), 467 n. 848 Khalil, [2007] FC 923 (Can. FC, Sept. 18, 2007), 1211 n. 411 Khalil, [2014] FCA 213 (Can. FCA, Sept. 30, 2014), 408 n. 522, 412 n. 538 Krishnapillai, [2002] 3(1) FC 74 (Can. FCA, Dec. 6, 2001), 800 n. 2816, 807 n. 2853 Liviu-Mitroi, [1995] FCJ 216 (Can. FC, Feb. 8, 1995), 1187 n. 282 Malouf, [1995] 1 FC 537 (Can. FCTD, Oct. 31, 1994), 422 n. 579 Nadjat, [2006] FCJ 478 (Can. FC, Mar. 9, 2006), 1176 n. 226 Najafi, [2014] FCA 262 (Can. FCA, Nov. 7, 2014), 412 n. 538 Németh, [2010] SCC 56, [2010] 3 SCR 281 (Can. SC, Nov. 25, 2010), 179 n. 31, 346 n. 172, 400 n. 477, 436 n. 667 Nevsun Resources Ltd. v. Gize Yebeyo Araya et al., [2020] SCC 5 (Can. SC, Feb. 28, 2020), 88 n. 392 Oakes, [1986] 1 SCR 103 (Can. SC, Feb. 28, 1986), 116 n. 496 Obstoj, [1992] FCJ 422 (Can. FCA, May 11, 1992), 1175 n. 220 Orelien, [1992] 1 FC 592 (Can. FCA, Nov. 22, 1991), 462 n. 823 Pilar Bravo, [2014] FC 1099 (Can. FC, Nov. 20, 2014), 467 n. 848 Pushpanathan, [1998] 1 SCR 982 (Can. SC, June 4, 1998), 61 n. 224, 402 n. 482, 403 n. 489, 405 n. 504, 413 n. 542, 422 n. 579 Ragupathy, [2006] FCJ 654 (Can. FCA, Apr. 26, 2006), 416 n. 553 Rahaman, 2002 ACWSJ Lexis 1026 (Can. FCA, Mar. 1, 2002), 58 n. 209, 65 n. 243 Ramanthan, [2017] FC 834 (Can. FC, Sept. 22, 2017), 416 n. 555 RJR-Macdonald Inc., [1995] 3 SCR 199 (Can. SC, Sept. 21, 1995), 116 n. 496 Rrotaj, [2016] FC 152 (Can. FC, Feb. 8, 2016), 61 n. 224 Salinas, (1992) FCJ 231 (Can. FC, Mar. 20, 1992), 1145 n. 81 Shanmugarajah, (1992) FCJ 583 (Can. FC, June 22, 1992), 1187 n. 282

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Simoes, [2000] FCJ 936 (Can. FC, June 16, 2000), 1169 n. 185 Suleiman, [2004] FCJ 1354 (Can. FC, Aug. 12, 2004), 1177 n. 229 Suresh, 2000 DLR Lexis 49 (Can. FCA, Jan. 18, 2000), 408 n. 524 Suresh, [2002] 1 SCR 3 (Can. SC, Jan. 11, 2002), 158 n. 140, 300 n. 673, 372 n. 320, 408 n. 524, 409 n. 529, 412 n. 538, 462 n. 825 VA3-01194 (Can. IRB, Oct. 18, 2004), 1188 n. 288 VB0-01863 (Can. IRB, Feb. 24, 2011), 1186 n. 273 Ward, (1993) 103 DLR 4th 1 (Can. SC, June 30, 1993), 344 n. 165 Xie, [2005] 1 FCR 304 (Can. FCA, June 30, 2004), 422 n. 579 YZ, [2015] FC 892 (Can. FC, July 23, 2015), 282 n. 572, 334 n. 120, 378 n. 352

Denmark 179/2011(Dmk. SC, Feb. 3, 2012), 488 n. 962

Finland KKO:2013:21 (Fin. SC, Apr. 5, 2013), 490 n. 973, 500 n. 1022

France 339478 (Fr. CE, May 20, 2010), 823 n. 82

Germany 1 C 21/04 (Ger. FAC, Nov. 1, 2005), 1141 n. 66 2 BvR 450/11 (Ger. FCC, Dec. 8, 2014), 497 n. 1008, 500 n. 1022 10 C 33.07 (Ger. FAC, Feb. 7, 2008), 1141 n. 66, 1145 n. 83 10 C 50.07 (Ger. FAC, Feb. 26, 2009), 212 n. 192 EZAR 208, 2 BvR 1938/93; 2 BvR 2315/93 (Ger. FCC, May 14, 1996), 782 n. 2714 Transfer of Asylum Applicants to Greece, [2009] BeckRS 36287 (Ger. AC Frankfurt-am -Main, July 8, 2009), 824 n. 83 V ZB 170/16 (Ger. FCJ, Mar. 16, 2017), 522 n. 1144

Hong Kong C, HCAL 132/2006 (HK HC, Feb. 18, 2008), 436 n. 667, 789 n. 2748 C, KMF, BF, Civil Appeals Nos. 18, 19 and 20 of 2011 (HK CFA, Jan. 31, 2013), 437 n. 678, 438 n. 679, 455 n. 781 MA, HCAL 10/2010, Constitutional and Administrative Law List No. 73 of 2010 (HK HC, Jan. 6, 2011), 361 n. 256

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Hungary 7.B.VIII.20.776/2013/34 (Hun. DC, Dec. 3, 2013), 505 n. 1048

India Chakma v. State of Arunachal Pradesh, [1994] AIR 1461 (In. SC, Apr. 27, 1993), 129 n. 16 Hingorani v. State of Bihar, [2005] InSC 35 (In. SC, Jan. 13, 2005), 636 n. 1873 National Human Rights Commission v. State of Arunachal Pradesh, (1996) 83 AIR 1234 (In. SC, Jan. 9, 1996), 129 n. 16, 360 n. 254, 781 n. 2710, 1033 n. 639, 1039 n. 678

Ireland ABM, [2016] IEHC 449 (Ir. HC, July 29, 2016), 684 n. 2167 Agha, [2017] IEHC 6 (Ir. HC, Jan. 17, 2017), 201 n. 140, 1025 n. 580 AMS, [2014] IESC 65 (Ir. SC, Nov. 20, 2014), 682 n. 2155 BA, [2017] IEHC 36 (Ir. HC, Jan. 27, 2017), 1176 n. 222 BMIF, [2018] IECA 36 (Ir. CA, Feb. 19, 2018), 520 n. 1132 CA, [2014] IEHC 532 (Ir. HC, Nov. 14, 2014), 577 n. 1494, 583 n. 1538, 611 n. 1696 CI and Others, [2015] IECA 192 (Ir. CA, July 30, 2015), 201 n. 140 HAH v. SAA, [2017] IESC 40 (Ir. SC, June 15, 2017), 681 n. 2150 Hassan and Saeed, [2013] IESCE 8 (Ir. SC, Feb. 20, 2013), 236 n. 316, 679 n. 2136 MAH, [2017] IEHC 462 (Ir. HC, July 17, 2017), 538 n. 1237 MAM (Somalia), [2018] IEHC 113 (Ir. HC, Feb. 26, 2018), 1138 n. 49, 1139 n. 58 MIF, [2018] IECA 36 (Ir. CA, Feb. 19, 2018), 73 n. 291, 490 n. 971, 498 n. 1014 NHV, [2015] IEHC 246 (Ir. HC, Apr. 17, 2015), 894 n. 481, 938 n. 73 NVH, [2017] IESC 35 (Ir. SC, May 30, 2017), 216 n. 211 U and Another, [2010] IEHC 317 (Ir. HC, July 30, 2010), 62 n. 231

Israel Desete, HCJ 8665/14 (Isr. SC, Aug. 11, 2015), 532 n. 1203 Kav La’Oved, 6312/10 (Isr. HCJ, Jan. 16, 2011), 949 n. 142

Japan QZP, (2006) GYO (KO) No. 43 of 2005 (Jp. Osaka HC, June 27, 2006), 1141 n. 63, 1144 n. 76 Z, 1819 HANREI JIHO 24 (Jp. Tokyo DC, Apr. 9, 2003), 781 n. 2708 Z, No. Heisei 16 Gho Ko 131 (Jp. Tokyo HC, Jan. 14, 2004), appeal denied No. Heisei 16 Gyo Tsu 106, Heisei 16 Gyo Hi 115 (Jp. SC, May 16, 2004), 781 n. 2709

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Kenya Kenya National Commission on Human Rights v. Attorney General, Constitutional Petition No. 227 of 2016 (Ken. HC, Feb. 9, 2017), 179 n. 31, 344 n. 160, 358 n. 227, 413 n. 540, 417 n. 557, 438 n. 679, 1138 n. 48, 1140 n. 61 Mohamed et al. v. Cabinet Secretary, Ministry of Interior, 206–2011 (Ken. HC, June 30, 2014), 302 n. 684, 872 n. 337 Sheria et al. v. Attorney General, Petitions Nos. 19 and 115 of 2013 (Ken. HC, July 26, 2013), 49 n. 155, 208 n. 172, 302, 529 n. 1178, 872 n. 337

Netherlands BO1587, ECLI:NL:HR:2011:BO1587 (Neth. SC, May 24, 2011), 505 n. 1048 BO2913–BO2915, ECLI:NL:HR:2011:BO2913 (Neth. SC, Mar. 8, 2011), 488 n. 962 BP7855, ECLI:NL:HR:2011:BP7855 (Neth. SC, July 5, 2011), 490 n. 973 BY4310, ECLI:NL:HR:2013:BY4310 and BY4238, ECLI:NL:HR:2013:BY4238 (Neth. SC, May 28, 2013), 490 n. 973 Rechtbank Den Haag AWB Dec. No. 15/2751 (Neth. DC, Oct. 16, 2015), 374 n. 330

New Zealand 135/92 Re RS (NZ RSAA, June 18, 1993), 1175 n. 216 71427/99 (NZ RSAA, Aug. 16, 2000), 137 n. 48 72635/01 (NZ RSAA, Sept. 6, 2002), 211 n. 186 Abu v. Superintendent of Mount Eden Women’s Prison, 199 NZAR Lexis 58 (NZ HC, Dec. 24, 1999), 500 n. 1022 AC (Syria), 800035 (NZ IPT, May 27, 2011), 140 n. 64, 160 n. 152 AD (Palestine), 800693–695 (NZ IPT Dec. 23, 2015), 140 n. 64 AHK v. Police, [2002] NZAR 531 (NZ HC, Dec. 11, 2001), 513 n. 1091 Aivazov v. Refugee Status Appeals Authority, [2005] NZAR 740 (NZ HC, Aug. 26, 2005), 521 n. 1137, 924 n. 666 Ding, (2006) 25 FRNZ 568 (NZ HC, Aug. 15, 2006), 1169 n. 186 E, [2000] NZAR 354 (NZ HC, Nov. 29, 1999), 534 n. 1208 E, [2000] 3 NZLR 257 (NZ CA, July 11, 2000, appeal to PC refused at [2000] 3 NZLR 637), 58 n. 209, 488 n. 962, 529 n. 1183, 534 n. 1208 Ghuman v. Registrar of the Auckland District Court [2003] NZAR Lexis 49 (NZ HC, Dec. 16, 2003), 493 n. 988 Hassan v. Department of Labour, CRI 2006–485-101 (NZ HC, Apr. 4, 2007), 505 n. 1048 Jiao, [2002] NZAR 845 (NZ HC, July 29, 2002), 491 n. 975 Liu, [2012] NZHC 2753 (NZ HC, Oct. 24, 2012), 1168 n. 185, 1169 n. 186 Liu, [2014] NZCA 37 (NZ CA, Feb. 26, 2014), 1168 n. 185, 1169 n. 186

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M, [2003] NZAR 614 (NZ HC, Feb. 19, 2003), 61 n. 223 Refugee Council of New Zealand Inc., [2003] 2 NZLR 577 (NZ CA, Apr. 16, 2003), 57 n. 203, 65 n. 246, 487 n. 954, 526 n. 1162, 529 n. 1183, 533 n. 1206, 534 n. 1209, 535 n. 1212 Refugee Council of New Zealand et al. and “D”, [2003] 2 NZLR 577, [2002] NZAR 717 (NZ HC, May 31, 2002), 58 n. 209, 535 n. 1214 S, [1998] 2 NZLR 291 (NZ CA, Apr. 2, 1998), 422 n. 581 Tamil X, [2011] 1 NZLR 721 (NZ SC, Aug. 27, 2010), 422 n. 581 Ye, [2009] NZSC 76 (NZ SC, July 20, 2009), 1167 n. 181 YLS, [2017] NZCA 582 (NZ CA, Dec. 12, 2017), 179 n. 31 Zanzoul, [2008] NZSC 44 (NZ SC, June 10, 2008), 497 n. 1008 Zaoui, [2005] 1 NZLR 690 (NZ CA, Sept. 30, 2004), 202 n. 145, 299 n. 670, 300 n. 676, 346 n. 171, 407 n. 512, 408 n. 524, 412 n. 539, 417 n. 562 Zaoui, [2005] NZSC 38 (NZ SC, June 21, 2005), 346 n. 171, 403 n. 489, 407 n. 511, 408 n. 524, 409 n. 529, 412 n. 539, 417 n. 562, 423 n. 585, 846 n. 205

Norway A, 2014/220, HR-2014–01323-A (Nor. SC, June 24, 2014), 493 n. 986, 495 n. 993, 497 n. 1008 A, B, and C, 2017/670, HR-2017–2078-A (Nor. SC, Oct. 31, 2017), 768 n. 2627, 776 n. 2680, 1088 n. 994, 1115 n. 1117

Papua New Guinea Namah, SC1497 (PNG SCJ, Apr. 26, 2016), 209 n. 174, 526 n. 1163, 873 n. 341

Philippines Karbasi, (2015) 767 Phil. R 275 (Phil. SC, July 29, 2015), 1209 n. 399, 1218 n. 452

South Africa Alam, 3414/2010 (SA HC, Eastern Cape, Feb. 9, 2012), 200 n. 139 Alam, [2012] ZAECPEHC 22 (SA HC, Feb. 16, 2012), 246 n. 365 Arse, 25/2010, [2010] ZASCA 9 (SA SCA, Mar. 12, 2010), 200 n. 138, 488 n. 962 Bula, [2011] ZASCA 209 (SA SCA, Mar. 28, 2012), 488 n. 962 Gavrić (Afghanistan), [2018] ZACC 38 (SA CC, Sept. 28, 2018), 61 n. 225 Grootboom, CCT 11/00 (SA CC, Oct. 4, 2000), 1044 n. 730 Katambayi and Lawyers for Human Rights, 02/5312 (SA HC, Witwatersrand Local Division, Mar. 24, 2002), 332 n. 108 Kaunda, (2005) 4 SA 235 (SA CC, Aug. 4, 2004), 14 n. 13

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Khosa et al., (2004) 6 BCRR 569 (SA CC, Mar. 4, 2004), 985 n. 330 Makumba, 6183/14 (SA HC, Dec. 3, 2014), 342 n. 152, 364 n. 281 RM, 16491/06 (SA HC, Apr. 2, 2007), 1177 n. 230 Ruta, [2018] ZACC 52 (SA CC, Dec. 20, 2018), 342 n. 151, 355 n. 214, 487 n. 955 Saidi, CCT 107/17 (SA CC, Apr. 24, 2018), 179 n. 31, 365 n. 283, 767 n. 2626, 777 nn. 2681 and 2687 Somali Association of South Africa v. Limpopo Department of Economic Development, Environment, and Tourism, 48/2014 (SA SCA, Sept. 26, 2014), 618 n. 1754, 895 n. 491, 938 n. 75 Somali Association of South Africa Eastern Cape, 831/2013 (SA SCA, Mar. 25, 2015), 767 n. 2626, 777 n. 2687, 782 n. 2713, 788 n. 2741 Soobramoney, (1998) 1 SA 765 (SA CC, Nov. 27, 1997), 636 n. 1873 South African National Defence Union, [2000] LRC 152 (SA CC, May 26, 1999), 1071 n. 879 South African Somali Association v. Limpopo Department of Economic Development, Environment and Tourism (SA HC, Mar. 14, 2013), 890 n. 449, 900 n. 521 Union of Refugee Women v. Director of the Private Security Industry Regulatory Authority, CCT 39/06 (SA CC, Dec. 12, 2006), 951 n. 158, 953 n. 169 Watchenuka, 1486/02 (SA HC, Nov. 18, 2002), 927 n. 15 Watchenuka, (2004) 1 All SA 21 (SA SCA, Nov. 28, 2003), 174 n. 5, 200 n. 138, 618 n. 1754, 744 n. 2494, 927 n. 15, 941 n. 91

Switzerland 6S.737/1998/bue, ASYL 99/2 (Sw. FAC, Mar. 17, 1999), 497 n. 1008, 500 n. 1022 A, B, and C (Kosovo), E-6770/2008 (Sw. FAC, Feb. 22, 2011), 1189 n. 289

United Kingdom AA, [2006] EWCA Civ 401 (Eng. CA, Apr. 12, 2006), 345 n. 170 AA (Somalia) v. Entry Clearance Officer (Addis Ababa), [2013] UKSC 81 (UK SC, Dec. 18, 2013), 236 n. 318 AB, [2018] EWCA Civ 383 (Eng. CA, Mar. 6, 2018), 338 n. 135 Adan, [1997] 1 WLR 1107 (Eng. CA, Feb. 13, 1997), 345 n. 170 Adan, [1999] 1 AC 293 (UK HL, Apr. 2, 1998); [2001] 2 AC 477 (UK HL, Dec. 19, 2000), 138 n. 51, 154 n. 120, 345 n. 170 Adan and Aitseguer, [1999] 3 WLR 1274 (Eng. CA, July 23, 1999), 146 n. 86, 160 n. 152 Adan and Aitseguer, [2001] 2 WLR 143 (UK HL, Dec. 19, 2000), 60 n. 219, 372 n. 319, 373 n. 324 Adimi, [1999] 4 All ER 520 (Eng. HC, July 29, 1999), 352 n. 200, 487 n. 954, 489 n. 963, 490 n. 971, 491 n. 974, 493 n. 987, 495 n. 994, 505–507, 512 n. 1086, 518 n. 1121 Aga, [2005] EWCA Civ 1574 (Eng. CA, Nov. 29, 2005), 682 n. 2157

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AH (Algeria), [2015] EWCA Civ 1003 (Eng. CA, Oct. 14, 2015), 60 n. 221, 404 n. 496, 407 n. 518 AH (Sudan), [2007] UKHL 49 (UK HL, Nov. 14, 2007), 30 n. 61, 173 n. 2 Ai, [2005] EWCA Crim 936 (Eng. CA, Apr. 15, 2005), 511 n. 1076 Al Rawi, [2006] EWCA Civ 1279 (Eng. CA, Oct. 12, 2006), 14 n. 15 Al-Sirri, [2012] 3 WLR 1265 (UK SC, Nov. 21, 2012), 406 n. 510, 407 n. 516 Al-Skeini et al., [2007] UKHL 26 (UK HL, June 17, 2007), 187 n. 72 Asfaw, [2008] UKHL 31 (UK HL, May 21, 2008), 43 n. 122, 58 n. 209, 138 n. 55, 163 n. 164, 366 n. 293, 382 n. 374, 485 n. 938, 490 n. 972, 491 n. 974, 492 n. 980, 498 n. 1015, 500 n. 1022 AZ (Syria), [2017] EWCA Civ 35 (Eng. CA, Jan. 27, 2017), 1116 B, [2004] EWCA Civ 1344 (Eng. CA, Oct. 18, 2004), 186 n. 70, 196 n. 121 Bashir, [2017] EWCA Civ 397 (Eng. CA, May 25, 2017), 1216 n. 440 Bashir, [2018] UKSC 45 (UK SC, July 30, 2018), 195 n. 118, 830 n. 112, 868 n. 321, 1006 n. 461, 1216 n. 440 Blakesley, [2015] EWCA Civ 141 (Eng. CA, Feb. 26, 2015), 203 n. 152, 747 n. 2507, 1025 n. 580 Bowie or Ramsay v. Liverpool Royal Infirmary, [1930] AC 588 (UK HL, May 27, 1930), 244 n. 353 Brown (Jamar), Jamaica, [2015] UKSC 8 (UK SC, Nov. 26, 2014), 281 n. 567 Bugdaycay, [1987] AC 514 (UK HL, Feb. 19, 1987), 61 n. 222, 202 n. 148, 368 n. 301, 373 n. 326 Chahal, [1994] Imm AR 107 (Eng. CA, Oct. 22, 1993), 420 n. 574 Cyganik v. Agulian, [2005] EWHC 444 (Eng. ChD, Mar. 23, 2005), 248 n. 370 Detention Action, [2014] EWHC 2245 (Eng. QBD, July 9, 2014), 281 n. 566 Detention Action, [2014] EWCA Civ 1634 (Eng. CA, Dec. 16, 2014), 527 n. 1170, 536 n. 1219 EM, Eritrea, [2014] UKSC 12 (UK SC, Feb. 19, 2014), 76 n. 306, 331 n. 104, 370 n. 314 EN (Serbia) and KC (South Africa), [2009] EWCA Civ 630 (Eng. CA, June 26, 2009), 137 n. 45, 415 n. 550, 416 n. 555, 417 n. 559 European Roma Rights Centre, [2002] EWCA 1989 (Eng. QBD, Oct. 8, 2002), 140 n. 64, 348 n. 183 European Roma Rights Centre and Others, [2003] EWCA Civ 666 (Eng. CA, May 20, 2003), 347 n. 178, 350 n. 191, 351 nn. 198 and 199, 352 n. 201, 384 n. 384 European Roma Rights Centre et al., [2004] UKHL 55 (UK HL, Dec. 9, 2004), 57 n. 206, 151 n. 108, 156 n. 129, 157 n. 136, 190 n. 88, 280 n. 563, 321 n. 52, 339 n. 137, 347 n. 178, 349 n. 188, 351 n. 199, 384 n. 384, 385 n. 388 Evans, In re, [1947] Ch 695 (Eng. ChD, July 9, 1947), 247 n. 368, 400 n. 477 EW, [2009] EWHC 2957 (Eng. HC, Nov. 18, 2009), 822 n. 78 Fornah, [2006] UKHL 46 (UK HL, Oct. 18, 2006), 31 n. 68, 57 n. 206 Fothergill v. Monarch Airlines, [1981] AC 251 (UK HL, July 10, 1980), 153 n. 119

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Furse v. IRC, [1980] 3 All ER 838 (Eng. ChD, July 7, 1980), 247 n. 369 Hammersmith and Fulham London Borough Council, ex parte M, (1997) 30 HLR 10 (Eng. CA, Feb. 17, 1997), 618 n. 1758 HF (Iraq) and MK (Iraq), [2013] EWCA Civ 1276 (Eng. CA, Oct. 13, 2013), 59 n. 211, 66 n. 249 HM (Iraq) and Others, [2012] UKUT 00409 (UK UT-IAC, Nov. 13, 2012), 66 n. 249 Hoxha, [2002] EWCA Civ 1403; [2003] 1 WLR 241 (Eng. CA, Oct. 14, 2002), 60 n. 219, 138 n. 53, 1173 nn. 205 and 207 Hoxha, [2005] 1 WLR 1063 (UK HL Mar. 10, 2005), 61 n. 222, 179 n. 31, 1138 n. 53, 1143 n. 71, 1172 n. 199, 1173 nn. 205 and 207 IH, [2009] UKAIT 00012 (UK AIT, Mar. 9, 2009), 415 n. 549 Inland Revenue Commissioners v. Bullock, [1976] 1 WLR 1178 (Eng. CA, June 25, 1976), 247 n. 367 International Transport Roth GmbH, [2002] 1 CMLR 52 (Eng. CA, Feb. 22, 2002), 509 n. 1062 Jahangeer et al., [1993] Imm AR 564 (Eng. QBD, June 11, 1993), 180 n. 34, 798 n. 2799, 800 n. 2816 Jammeh, [1999] Imm AR 1 (Eng. CA, July 30, 1998), 617 n. 1749, 957 n. 197 Januzi and Hamid, [2006] UKHL 5, [2006] 2 AC 426 (UK HL, Feb. 15, 2006), 175 n. 15, 338 n. 133, 826 n. 94 Javed, [2001] EWCA Civ 789 (Eng. CA, May 17, 2001), 375 n. 338 Joint Council for the Welfare of Immigrants, [1996] 4 All ER 385 (Eng. CA, June 21, 1996), 617 n. 1749 Kaya v. Haringey London Borough Council, [2001] EWCA Civ 677 (Eng. CA, May 1, 2001), 206 n. 162 Khaboka, [1993] Imm AR 484 (Eng. CA, Mar. 25, 1993), 180 n. 34 L, [2003] EWCA Civ 25 (Eng. CA, Jan. 24, 2003), 364 n. 281, 377 n. 346 Limbuela, [2004] EWCA Civ 540 (Eng. CA, May 21, 2004), 518 n. 1122, 576 n. 1487, 577 n. 1497, 589 n. 1570, 620 n. 1766 Lord Chancellor v. Detention Action, [2015] EWCA Civ 840, (Eng. CA, July 29, 2015), 365 n. 284, 784 n. 2723, 806 n. 2847 M v. Slough Borough Council, [2008] UKHL 52 (UK HL, July 30, 2008), 618 n. 1758 MA (Somalia), [2018] EWCA Civ 994 (Eng. CA, May 2, 2018), 65 n. 247, 1142 n. 68, 1149 n. 98, 1171 n. 195 Mahad v. Entry Clearance Officer, [2009] UKSC 16 (UK SC, Dec. 16, 2009), 690 n. 2197 Makuwa, [2006] EWCA Crim 175 (Eng. CA, Feb. 23, 2006), 491 n. 975 Mark v. Mark, [2005] UKHL 42, (UK HL, June 30, 2005), 205 n. 154, 246 n. 362 Mateta, [2013] EWCA Crim 1372 (Eng. CA, July 30, 2013), 490 n. 971, 505, 506 n. 1050, 517 n. 1114 MM, Lebanon, [2017] UKSC 10 (UK SC, Feb. 22, 2017), 669 n. 2086, 688 n. 2187, 690 n. 2197

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MM (Zimbabwe), [2017] EWCA Civ 797 (Eng. CA, June 22, 2017), 415 n. 548, 1143 n. 74 Mohamed, [2010] EWCA Civ 2400 (Eng. CA, Oct. 19, 2010), 517 n. 1113 Morteza Fafschi, [2006] CSOH 125 (Sc. CSOH, Aug. 15, 2006), 61 n. 226 MS and MBT, [2017] EWCA Civ 1190 (Eng. CA, July 31, 2017), 400 n. 476, 443 n. 713 Nassir, The Times (Dec. 11, 1998) (Eng. CA, Nov. 23, 1998), 364 n. 280 Navabi, [2005] EWCA Crim 2865 (Eng. CA, Nov. 11, 2005), 180 n. 34, 500 n. 1022 Nessa v. Chief Adjudication Officer, Times Law Rep, Oct. 27, 1999 (UK HL, Oct. 21, 1999), 213 n. 197 NSH, [1988] Imm AR 410 (Eng. CA, Mar. 23, 1988), 412 n. 539, 420 n. 574 Onibiyo, [1996] QB 768 (Eng. QBD, Mar. 5, 1996), 364 n. 280 Ozbek v. Ipswich Borough Council, [2006] EWCA Civ 534 (Eng. CA, May 4, 2006), 874 n. 353, 1039 n. 684 Poshteh v. Royal Borough of Kensington and Chelsea, [2017] UKSC 36 (UK SC, Feb. 14, 2017), 630 n. 1841 Rehman, [1999] INLR 517 (UK SIAC, Sept. 7, 1999), 298 n. 666 Rehman, [2001] UKHL 47 (UK HL, Oct. 11, 2001), 298 n. 666, 300 n. 671, 410 n. 530 Roszkowski, [2001] EWCA Civ 650 (Eng. CA, May 9, 2001), 376 n. 341 S, Re, [2002] EWCA Civ 843 (Eng. CA, May 28, 2002), 363 n. 278 S, [2014] EWHC 50 (Eng. QBD, Admin. Ct., Jan. 28, 2014), 577 n. 1497 Saad, [2001] EWCA Civ 2008 (Eng. CA, Dec. 19, 2001), 807 n. 2852, 1137 n. 45 Saadi, [2002] UKHL 41 (UK HL, Oct. 31, 2002), 497 n. 1007, 535 Saeedi, [2010] EWHC 705 (Eng. HC, Mar. 31, 2010), 824 n. 83 Senkoy, [2001] EWCA Civ 328 (Eng. CA, Mar. 2, 2001), 364 n. 279 Sepet, [2001] EWCA Civ 681 (Eng. CA, May 11, 2001), 344 n. 165 Sepet and Bulbul, [2003] UKHL 15 (UK HL, Mar. 20, 2003), 61 n. 229, 160 n. 152, 344 n. 165 Shah, ex parte [1997] Imm AR 145 (Eng. QBD, Nov. 11, 1996), 160 n. 152 Sivakumaran, [1988] 1 All ER 193 (UK HL, Dec. 16, 1987), 345 n. 169, 1139 n. 55 SS, Congo v. Entry Clearance Officer, Nairobi, [2017] UKSC 10 (UK SC, Feb. 22, 2017), 236 n. 318 ST, Eritrea, [2012] UKSC 12 (UK SC, Mar. 21, 2012), 138 n. 53, 140 n. 64, 176 n. 20, 179 n. 31, 202 n. 146, 203 n. 151, 204 n. 153, 205 n. 154, 205, 817 n. 54, 959 n. 206 ST and ET, [2014] EWCA Civ 188 (Eng. CA, Feb. 28, 2014), 1191 n. 299 SXH, [2017] UKSC 30 (UK SC, Apr. 11, 2017), 382 n. 374, 494 n. 991 Szoma, [2005] UKHL 64 (UK HL, Oct. 27, 2005), 202 n. 146 T, [1996] 2 All ER 865 (UK HL, May 22, 1996), 413 n. 542, 422 n. 580 TN (Vietnam) and US (Pakistan), [2017] EWHC 59 (Eng. HC, Jan. 20, 2017), 536 n. 1219 Ullah, [2004] UKHL 26 (UK HL, June 17, 2004), 828 n. 108, 1170 n. 191 Wang, [2005] EWCA Crim. 293 (Eng. CA, Feb. 3, 2005), 491 n. 974

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Yogathas, [2002] UKHL 36 (UK HL, Oct. 17, 2002), 340 n. 141, 361 n. 255, 368 n. 301, 370 n. 312, 373 n. 325, 374 n. 332, 820 n. 71, 826 n. 93, 1137 n. 45 Youssef, [2018] EWCA Civ 933 (Eng. CA, Apr. 26, 2018), 62 n. 234 Zaredar, [2016] EWCA Crim 877 (Eng. CA, May 19, 2016), 517 n. 1114 ZH (Tanzania), [2011] UKSC 4 (UK SC, Feb. 1, 2011), 1168 n. 185 ZN (Afghanistan), [2010] UKSC 21 (UK SC, May 12, 2010), 688 n. 2183 ZO, Somalia, [2010] UKSC 36 (UK SC, July 28, 2010), 941 n. 91

United States AB, 3929, 27 I&N Rep. 316 (US AG, June 11, 2018), 343 n. 156, 498 n. 1015 Aguirre Aguirre, (1999) 526 US 415 (US SC, May 3, 1999), 60 n. 217, 422 n. 582 AH, 2005 BIA Lexis 11 (US AG, Jan. 26, 2005), 407 n. 512, 408 n. 521 Akinmade, 196 F. 3d 951 (US CA9, Nov. 5, 1999), 487 n. 954 Ali, 814 F. 3d 306 (US CA5, Feb. 22, 2016), 43 n. 124 Ambach v. Norwick, 441 US 68 (US SC, Apr. 17, 1979), 994 n. 372 American Baptist Churches v. Thornburgh, 760 F. Supp. 796 (US DCCa, Jan. 31, 1991), 1024 n. 574 Avendano Hernandez, 800 F. 3d 1072 (US CA9, Sept. 3, 2015), 415 n. 550 Bacardi Corp. of America v. Domenech, (1940) 311 US 150 (US SC, Dec. 9, 1940), 156 n. 128 Bernal v. Fainter, 467 US 216 (US SC, May 30, 1984), 994 n. 375 Bucur, 109 F. 3d 399 (US CA7, Mar. 26, 1997), 1175 n. 219 Cabell v. Chavez-Salido, 454 US 432 (US SC, Jan. 12, 1982), 994 n. 374 Cabrera Alvarez, 423 F. 3d 1006 (US CA9, Sept. 8, 2005), 1168 n. 185 Cardoza-Fonseca, (1987) 480 US 421 (US SC, Mar. 9, 1987), 60 n. 216, 154 n. 120, 343 n. 156, 346 n. 172 Cheema, 02–71311 (US CA9, Dec. 1, 2003), 408 n. 525 DJ, 2003 BIA Lexis 3 (US AG, Apr. 17, 2003), 409 n. 527, 526 n. 1164 D-X & Y-Z, 25 I&N Dec. 664 (US BIA 2012), 468 n. 850 Eastern Airlines v. Floyd, (1991) 499 US 530 (US SC, Apr. 17, 1991), 153 n. 119 EFHL, Matter of, 27 I&N Dec. 226 (US AG, Mar. 5, 2018), vacating Matter of EFHL, 26 I&N Dec. 319 (US BIA, June 12, 2014), 783 n. 2717 Examining Board of Engineers v. Flores de Otero, 426 US 572 (US SC, June 17, 1976), 994 n. 375 Flores, 779 F. 3d 159 (US CA2, Feb. 26, 2015), 416 n. 555 Foley v. Connelie, 435 US 291 (US SC, Mar. 22, 1978), 994 n. 373 Garcia Garcia, 856 F. 3d 27 (US CA1, May 3, 2017), 516 n. 1110, 951 n. 156, 1115 n. 1119, 1219 n. 456 Gilbert v. David, (1915) 235 US 561 (US SC, Jan. 5, 1915), 247 n. 368 Gomez Garcia, 1999 US App Lexis 12096 (US CA8, June 11, 1999), 1145 n. 80 Griffiths, 413 US 717 (US SC, June 25, 1973), 994 n. 375

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Griggs v. Duke Power Co., 401 US 424 (US SC, Mar. 8, 1971), 105 n. 464 Haddam, In re, 2000 BIA Lexis 20 (US BIA, Dec. 1, 2000), 411 n. 532 Hana, (2005) 157 Fed. Appx. 880 (US CA6, Dec. 14, 2005), 1175 n. 219 Hernandez v. Thornburgh, (1990) 919 F. 2d 549 (US CA9, Nov. 29, 1990), 361 n. 262 Hernandez Nolasco, 807 F. 3d 95 (US CA4, Dec. 4, 2015), 416 n. 555 Issa et al. v. School District of Lancaster, 847 F. 3d 121 (US CA3, Jan. 30, 2017), 740 n. 2480 Ixtlilco-Morales v. Keisler, 507 F. 3d 651 (US CA8, Nov. 2, 2007), 1143 n. 74 Jennings v. Rodriguez, 804 F. 3d 1060 (US SC, Feb. 27, 2018), 530 n. 1191 Jordan v. Tashiro, (1928) 278 US 123 (US SC, Nov. 19, 1928), 156 n. 128 Kane, 581 F. 3d 231 (US CA5, Aug. 26, 2009), 62 n. 231 Li v. Holder, 656 F. 3d 898, 899, 900 (US CA9, Sept. 1, 2011), 477 n. 901 Lal, 255 F. 3d 998 (US CA9, July 3, 2001), 1177 n. 228 Maharaj v. Gonzales, 450 F. 3d 961 (US CA9, 2006), 468 n. 850 Mazariegos, 241 F. 3d 320 (US CA11, Feb. 12, 2001), 1145 n. 80 McNary v. Haitian Centers Council Inc., (1992) 503 US 1000 (US SC, Apr. 22, 1992), 382 n. 375, 383 n. 380 MHZ, 26 I&N Dec. 757 (US BIA, June 9, 2016), 415 n. 550 Mowlana, 2015 US App. Lexis 17182 (US CA8, Sept. 30, 2015), 416 n. 555 Negusie, (2009) 555 US 511 (US SC, Mar. 3, 2009), 60 n. 217, 173 n. 2 Odhiambo v. Republic of Kenya, [2014] WL 4251156 (US CADC, Aug. 29, 2014), 797 n. 2792 Orantes-Hernandez v. Meese, (1988) 685 F. Supp. 1488 (US DCCa, Apr. 29, 1988), 361 n. 262 Rasul v. Bush, 03–334 (US SC, June 28, 2004), 186 n. 66 RIL-R v. Johnson, 80 F. Supp. 3d 164 (US DCDC, Feb. 20, 2015), 478 n. 905, 527 n. 1165 Romanishyn, 455 F. 3d 175 (US CA3, July 20, 2006), 43 n. 124 RSC, 869 F. 3d 1176 (US CA10, Sept. 6, 2017), 1115 n. 1119, 1211 n. 411 Sale v. Haitian Centers Council Inc., 509 US 155 (US SC, June 21, 1993), 153 n. 119, 190 n. 88, 380 n. 363, 381, 383, 384, 385 Santos, In re, A29-564–781 (US IC, Aug. 24, 1990), 462 n. 823 Singh v. Nelson, 623 F. Supp. 545 (US DCNY, Dec. 12, 1985), 499 n. 1019, 545 n. 1294 Smriko, 387 F. 3d 279 (US CA3, Oct. 26, 2004), 44 n. 127 Smriko, 23 I&N Dec. 836 (US BIA, Nov. 10, 2005), 44 n. 127 Trifoni v. Holder, (2009) 351 Fed. Appx. 19 (US CA6, Nov. 2, 2009), 1147 n. 90 Trump v. Hawaii, (2018) 138 S. Ct. 2392 (US SC, June 26, 2018), 270 n. 511 Valcu, 394 Fed. Appx. 854 (US CA3, Sept. 20, 2010), 1143 n. 74 Valerio Ramirez, 882 F. 3d 289 (US CA1, Feb. 18, 2018), 414 n. 546, 416 n. 555 Volkswagenwerk Aktiengesellschaft v. Schlunk, (1988) 486 US 694 (US SC, June 15, 1988), 153 n. 119 White v. Tennant, (1888) 31 W. Va. 790 (US WVSCA, Dec. 1, 1888), 244 n. 352

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TABLE OF TREATIES AND OTHER INTERNATIONAL INSTRUMENTS

1878 July 13 Austria/Hungary, France, Germany, Great Britain, Italy, Russia, Turkey, Treaty of Berlin (Treaty for the Settlement of Affairs in the East) (153 CTS 171), 17 1883 Mar. 20 International Convention for the Protection of Industrial Property (Paris) (161 CTS 409), revised June 2, 1934 (London) (4459 LNTS 19) and July 14, 1967 (Stockholm) (828 UNTS 305 [UNTS 11851]), 276, 906–909 1886 Sept. 9 Berne Convention on the Protection of Literary and Artistic Works (168 CTS 185), revised July 14, 1967 (Stockholm) (828 UNTS 221 [UNTS 11850]), 902–909, 914 Art. 3(2), 907 n. 557 1896 Nov. 14 Hague Convention on Civil Procedure (88 British & Foreign State Papers 555), 211 n. 183 1922 July 5 Arrangement with regard to the Issue of Certificates of Identity to Russian Refugees (30 LNTS 238), 22 n. 25, 50 n. 161 1924 May 31 Plan for the Issue of a Certificate of Identity to Armenian Refugees (89 LNTS 47), 22 n. 25, 50 n. 161 1926 May 12 Arrangement Governing the Issue of Certificates of Identity to Russian and Armenian Refugees (89 LNTS 47), 22 n. 25, 50 n. 161 Sept. 25 International Convention for the Abolition of Slavery and the Slave Trade (60 LNTS 253), 23 n. 31, 50 n. 161 Art. 6, 40

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1928 June 30 Arrangement concerning the Extension to Other Categories of Certain Measures taken in favour of Russian and Armenian Refugees (2006 LNTS 65), 22, 23, 50 n. 161 June 30 Arrangement relating to the Legal Status of Russian and Armenian Refugees (89 LNTS 53), 22 n. 25 1933 Oct. 28 Convention on the International Status of Refugees (159 LNTS 3663), 22–25, 26, 28 n. 52, 29, 50 n. 161, 175, 222 n. 249, 227 n. 263, 230, 254, 262, 264, 743, 797, 855 n. 258, 855, 916, 921 n. 639, 964 n. 236, 1067, 1068, 1095 n. 1015 Art. 2, 1096 n. 1020 Art. 3, 23 n. 33, 282, 355, 818 n. 61 Art. 9, 1019, 1021 n. 559 Art. 11, 1059 n. 809 Art. 13, 657 n. 2017 Art. 14, 228–229 1935 May 24 Plan for the Issue of a Certificate of Identity to Refugees from the Saar (16 League of Nations OJ 1681), 50 n. 161 1936 July 4 Provisional Arrangement concerning the Status of Refugees coming from Germany (3952 LNTS 77), 25 Art. 4(1), 1195 1938 Feb. 10 Convention on the Status of Refugees coming from Germany (192 LNTS 4461), 25, 50 n. 161, 222 n. 249, 254, 743, 797, 876 n. 362, 916, 921 n. 639, 1067, 1068, 1095 n. 1015, 1195 Art. 2, 868, 1096 n. 1020 Art. 3(1)(b), 1096 n. 1020 Art. 5(1), 1195 Art. 6, 241 Art. 11, 1019 Art. 13, 1059 n. 809 Art. 15, 26 n. 43, 1195 Art. 16, 657 n. 2017 1939 Convention concerning the Recruitment, Placing, and Conditions of Labour of Migrants for Employment (ILO Convention No. 66), 30, 85 Sept. 14 Additional Protocol concerning the Status of Refugees coming from Germany (198 LNTS 141), 50 n. 161

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1945 June 26 Charter of the United Nations (1 UNTS 16), 221 n. 241, 275, 457 n. 797, 1084 Preamble, 486 n. 940 Chapter I Art. 1(3), 1180 n. 241 Art. 2(4), 456, 1085 n. 971 Chapter IV Art. 13, 59 n. 210 Chapter V Art. 27(3), 145 n. 84 Chapter VII, 1078 n. 933 Art. 51, 1078 n. 933 June 26 Statute of the International Court of Justice (961 UNTS 183), 150, 152 n. 116 1946 Oct. 15 Agreement relating to the Issue of Travel Documents to Refugees who are the Concern of the Intergovernmental Committee on Refugees (11 UNTS 150), 50 n. 161, 1094, 1095 n. 1015, 1102, 1105 n. 1061, 1118 n. 1137 1948 May 2 American Declaration of the Rights and Duties of Man (OAS Res. XXX (1948)), 78 n. 324 Art. XXVII, 77, 80 Dec. 9 Convention on the Prevention and Punishment of the Crime of Genocide (78 UNTS 277 [UNTS 1021]), 84, 152 n. 115, 398 n. 468 Dec. 10 Universal Declaration of Human Rights (UNGA Resolution 217A(III)), 10, 29, 84, 87 n. 385, 141, 183, 405, 712, 713 n. 2300, 715, 744, 892, 1060, 1061 n. 821, 1063 n. 837, 1066, 1084, 1162 n. 157 Art. 2, 284 Art. 3, 578 Art. 7, 104 Art. 14, 129 n. 16 Art. 14(1), 338 n. 133 Art. 16(1), 694 n. 2218 Art. 17, 648, 652 n. 1975 Art. 18, 1069 Art. 19, 29 n. 57, 1059, 1065 n. 839, 1066 n. 846, 1069 Art. 20, 1059, 1066 n. 846 Art. 20(1), Art. 20, 1059 Art. 20(2), 1075 n. 912

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Art. 23, 648 n. 1950, 967 Art. 23(4), 1064 n. 838 Art. 24, 967 Art. 25(1), 625 Art. 25(2), 962 Art. 26, 745 Art. 26(1), 747 n. 2513 1949 July 1 Convention concerning Migration for Employment (Revised) (ILO Convention No. 97) (120 UNTS 70 [UNTS 1616]), 30, 85 n. 376, 970–978, 981, 1039, 1042 n. 704, 1043 n. 720 Art. 6, 970 Aug. 12 Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Geneva Convention IV) (75 UNTS 287 [UNTS 973]) Art. 2, 154 n. 121, 186 n. 65 Art. 3 (Common Article), 565 n. 1415 Art. 44, 303 1950 Nov. 4 European Convention for the Protection of Human Rights and Fundamental Freedoms (213 UNTS 221 [UNTS 2889]), 74 n. 293, 160 n. 152, 164 n. 166, 174 n. 5, 183 n. 56, 196 n. 121, 335 n. 125, 338 n. 134, 340 n. 142, 392, 399 n. 474, 400 n. 476, 443 n. 713, 525 n. 1158, 620 n. 1766, 707 n. 2277, 822 n. 78, 828 n. 108 Art. 1, 184 n. 57, 509 n. 1062 Art. 3, 421, 461 n. 822, 462 n. 825, 495 n. 998, 842 n. 181 Art. 6, 509 n. 1062, 803 n. 2833 Art. 6(1), 803 n. 2833 Art. 12, 687 n. 2181 Art. 14, 280 n. 563 Nov. 4 European Convention for the Protection of Human Rights and Fundamental Freedoms (213 UNTS 221), First Protocol (March 20, 1952) (213 UNTS 262 [UNTS 2889]), 652 n. 1974 Art. 1, 646 Dec. 14 Statute of the United Nations High Commissioner for Refugees (UNGA Resolution 428(V)), 405, 780, 785 n. 2729 Art. 1(1), 1132 n. 24 Art. 6, 1151 n. 108 Art. 6(f), 1159 n. 142, 1174 n. 212, 1176 Art. 6(A)(ii), 1158 n. 136 Art. 6(A)(e) and (f), 1159 n. 142 Art. 8(b), 780, 1130 n. 18 Art. 8(c), 780, 1151 n. 107

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1950 (cont.) Art. 8(d), 780, 1134 Art. 9, 1151 n. 107 1951 June 29 Convention concerning Equal Remuneration for Men and Women Workers for Work of Equal Value (ILO Convention No. 100) (Equal Remuneration Convention), 976 n. 294 1957 Mar. 25 Treaty Establishing the European Economic Community (Treaty of Rome) (298 UNTS 11 [UNTS 4300]) Art. 119, 976 n. 294 1959 Apr. 20 European Agreement on the Abolition of Visas for Refugees (31 ETS), 1090 1961 Apr. 18 Vienna Convention on Diplomatic Relations (500 UNTS 95 [UNTS 7310]) Art. 22, 196 n. 119 Art. 41, 196 n. 119 Aug. 30 Convention on the Reduction of Statelessness (989 UNTS 175 [UNTS 14458]) Arts. 1 and 4, 1210 n. 407 Oct. 26 International Convention for the Protection of Performers and Producers of Phonograms and Broadcasting Organisations (Rome Convention) (496 UNTS 43 [UNTS 7247]), 910, 914 Art. 2(1), 909 1965 Dec. 21 International Convention on the Elimination of All Forms of Racial Discrimination (60 UNTS 195 [UNTS 9464]), 5 n. 19, 86, 147 n. 93, 185, 753 n. 2541, 1162 n. 157 Art. 1(1), 86, 649 n. 1956 Art. 1(2), 86 Art. 1(3), 311 n. 731 Art. 2, 311 n. 731 Art. 5, 106 n. 465, 311 n. 731, 649 n. 1956 Art. 5(a), 106 n. 465 Art. 5(d)(v), 649 n. 1956 1966 Dec. 16 International Covenant on Civil and Political Rights (999 UNTS 172 [UNTS 14668]), 2 n. 9, 3, 41 n. 113, 45, 52 n. 174, 87 n. 385, 87–102, 129, 146, 158 n. 142,

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168, 175, 282, 287 n. 611, 291, 333 n. 114, 399 n. 474, 438, 462 n. 825, 648, 678, 712 n. 2296, 1162 n. 157, 1165, 1167 Art. 2, 103, 105 n. 464, 107, 110, 231 n. 285, 276–279, 354, 724 n. 2389, 750 n. 2533, 1079 n. 937 Art. 2(1), 88, 90 n. 400, 91 n. 405, 277 n. 547, 282, 349 nn. 187 and 190, 882 n. 397, 1163 n. 163 Art. 2(2), 91 Art. 2(3), 288 n. 612, 568 n. 1430, 836 n. 149 Art. 3, 681 n. 2149, 724 n. 2389, 1079 n. 937 Art. 4(1), 89 n. 396, 175, 293 n. 641, 311 n. 731, 1182 Art. 4(2), 89 n. 395, 175, 718 n. 2337, 1077 n. 926 Art. 5(1), 1181 n. 246 Art. 6, 438 n. 682, 442, 448 n. 739, 460, 512 n. 1085, 566–571, 581, 587 n. 1554, 836 n. 149, 842 n. 181, 1171 n. 193 Art. 6(1), 564, 567 n. 1424, 586, 587, 803 n. 2832 Arts. 6–11, 278 Art. 7, 442, 448 n. 739, 460, 462 n. 825, 512 n. 1085, 547, 564, 566, 571–578, 581, 586, 587 n. 1554, 588–589, 803 n. 2832, 836 n. 149, 842 n. 181, 1163, 1164, 1171 n. 193 Art. 9, 521, 523–537, 566, 578, 579, 581, 587 n. 1554, 588, 1164 n. 167, 1171 n. 193 Art. 9(1), 282, 288 n. 612, 485, 523 n. 1146, 537 nn. 1221 and 1227, 564, 578–581, 586, 1163, 1164 Art. 9(4), 288 n. 612, 524 n. 1156 Art. 10, 418 n. 564, 547, 587 n. 1554, 1171 n. 193 Art. 10(1), 485, 547, 548, 586, 587, 589 Art. 10(2)(a), 548 n. 1314 Art. 12, 256 n. 410, 278 n. 550, 349 n. 187, 352, 523 n. 1150, 540 n. 1255, 541, 868, 870 n. 330, 878 n. 374, 880–885, 1094, 1100 n. 1035, 1178 Art. 12(1), 126, 207 n. 164, 256 n. 410, 278 n. 549, 538 n. 1231, 885, 1180 Art. 12(2), 278, 338 n. 133, 348, 352 n. 202, 354, 463 n. 826, 885, 1099, 1179, 1181 n. 244 Art. 12(3), 126, 349 n. 187, 353 n. 204, 463 n. 826, 541, 882 n. 397, 883–884, 1115–1117, 1179 Art. 12(4), 880 n. 388, 1135 n. 37, 1162 n. 159, 1181–1183, 1210 n. 407, 1212 n. 417 Art. 13, 678, 682 n. 2155, 803, 804, 816, 830, 833 n. 128, 834 n. 139, 836 n. 149, 837, 838, 841 n. 174, 841 Art. 14, 39 n. 106, 801–806, 920, 922, 1117 Art. 14(1), 784, 801 n. 2828, 801, 802, 804, 805 nn. 2840 and 2844, 807, 915, 922 n. 647 Arts. 14–16, 89 n. 394 Arts. 14–21, 278

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1966 (cont.) Art. 15(1), 515 n. 1104 Art. 17, 674, 678, 682 n. 2155, 683–687, 687 n. 2181, 693, 697, 1164 n. 172 Art. 17(1), 684, 693 Art. 17(2), 678 Art. 18, 711, 713 n. 2300, 714 n. 2305, 716 n. 2319, 717, 718, 721, 724 n. 2389, 1080 Art. 18(1), 717 n. 2326, 718, 719 n. 2343, 721 n. 2362 Art. 18(2), 719 Art. 18(3), 718 n. 2337, 723, 724 n. 2389, 726 n. 2398, 1079 n. 937 Art. 18(4), 728, 730 n. 2422 Art. 19, 71, 713 n. 2300, 726 n. 2401, 1058, 1072, 1077, 1080, 1083 n. 961 Art. 19(1), 1070 Art. 19(2), 1071–1072, 1078 n. 931, 1079 n. 935 Art. 19(3), 1071, 1079 n. 935, 1080, 1081 Arts. 19–22, 1069 Art. 20, 1058, 1079 n. 935 Art. 20(1), 1078 n. 933 Art. 20(2), 726 n. 2401 Art. 21, 45 n. 137, 1058, 1072, 1077, 1080 Art. 22, 278, 972, 1058, 1060 n. 813, 1074–1077, 1080 Art. 22(1), 1075 Art. 22(2), 1075 Art. 23, 678, 687, 688 n. 2187, 693 Art. 23(1), 674, 678, 682 n. 2155, 684, 693 Art. 23(2), 674, 687–697 Art. 23(4), 678, 694 n. 2218 Arts. 23–24, 278 Art. 24, 679 Art. 24(1), 674, 678, 679 Art. 24(3), 1210 n. 404 Art. 25, 88 n. 391, 1076 n. 916 Art. 26, 36, 96, 103–108, 126, 231 n. 285, 261 n. 452, 265, 282, 286, 288, 289, 307 n. 709, 349 n. 187, 523 n. 1150, 649, 694, 696, 724 n. 2389, 728 n. 2413, 761 n. 2588, 882 n. 397, 899 n. 515, 933 n. 41, 968 n. 251, 985 n. 330, 1010, 1024 n. 573, 1063 n. 831, 1079 n. 937 Art. 27, 278, 626, 724 n. 2389 Art. 53, 138 n. 50 Dec. 16 International Covenant on Civil and Political Rights (999 UNTS 172), Optional Protocol (First) (999 UNTS 302 [UNTS 14668]), 168, 566 n. 1418

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Dec. 16 International Covenant on Economic, Social and Cultural Rights (993 UNTS 3 [UNTS 14531]), 2 n. 9, 3, 87 n. 385, 90–102, 93 n. 410, 129, 146, 256, 277 n. 546, 288, 624 n. 1790, 680, 759 n. 2578, 936 n. 60, 937 n. 68, 1020 n. 552, 1162 n. 157 Art. 2, 105 n. 462, 107, 110, 272, 276–279 Art. 2(1), 92 n. 406, 93 n. 412, 94, 97, 100, 610, 614, 638 n. 1889, 899 n. 517 Art. 2(2), 90 n. 400, 91 n. 402, 277 n. 546, 612 n. 1702, 613 n. 1704, 638 n. 1889, 762 n. 2598, 1045 n. 737 Art. 2(3), 98–99, 101 n. 446, 752 n. 2537, 940–943, 943 n. 101, 974, 978, 1025 n. 585 Art. 3, 613 n. 1704 Art. 4, 937, 940 n. 87 Art. 5(1), 935 Art. 6, 278 n. 550, 892 n. 458, 897, 931–966, 1009–1010 Art. 6(1), 256 n. 413, 892 n. 458 Art. 6(2), 763 n. 2605, 950 n. 155 Art. 7, 279 n. 553, 967, 969–977 Art. 7(a)(i), 977 n. 299 Art. 7(b), 626 n. 1810, 971 Art. 7(c), 974 n. 283 Art. 8, 972, 1058, 1076 n. 924 Art. 8(1)(d), 1077 Art. 9, 611 n. 1699, 979, 982, 985 n. 329, 1018, 1025 n. 582, 1026–1027 Arts. 9–13, 279 n. 553 Art. 10(1), 674, 678 n. 2132, 697 n. 2233, 1026, 1164 n. 172 Art. 11, 96, 278 n. 550, 594 n. 1603, 610–621, 624, 625–626, 628 n. 1820, 975, 1026, 1044, 1046, 1048, 1171 n. 193 Art. 11(1), 256 n. 413, 611 n. 1701, 614 n. 1720, 621–624, 1037, 1045 Art. 12, 611, 615, 624, 635–640, 999 n. 411, 1026 Art. 12(1), 635, 636 Art. 12(2), 635 Art. 13, 626 n. 1808, 742, 745 n. 2498, 750 n. 2535, 763 n. 2601 Art. 13(1), 728 n. 2414, 744 n. 2495, 750 n. 2535 Art. 13(2), 762 Art. 13(2)(a), 749, 750 n. 2535, 754 Art. 13(2)(b), 256 n. 413, 763 Art. 13(2)(c), 761 n. 2588, 764 n. 2607 Art. 13(2)(d), 745 Art. 13(2)(e), 764 Art. 13(3), 712, 728 n. 2414, 756 Art. 13(4), 728 n. 2414, 756 Art. 14, 750 n. 2534, 752 n. 2540 Art. 15, 279 n. 553

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1966 (cont.) Art. 15(1)(b), 638 n. 1887 Art. 15(1)(c), 902, 911–915 Art. 22, 614 n. 1720 Art. 23, 614 n. 1720, 1164 n. 172 Art. 24, 1164 n. 172 Art. 31, 138 n. 50 1967 Dec. 14 Declaration on Territorial Asylum (UNGA Resolution 2312(XXII)), 355 n. 215, 430, 442, 444 Art. 4, 1081 n. 953 1969 May 23 Vienna Convention on the Law of Treaties (1155 UNTS 331 [UNTS 18232]), 67, 133, 159 n. 145 Art. 26, 156 n. 129 Art. 27, 336 n. 131 Art. 30(2), 52 n. 174 Art. 30(3) and (4), 52 n. 174 Arts. 31–33, 133 Art. 31, 135, 136 n. 41, 148, 150–153, 161, 163 n. 163, 166–168, 170 Art. 31(1), 134, 135, 289 n. 621, 515 n. 1105, 578 n. 1506, 829 n. 109 Art. 31(2), 134, 135 n. 39 Art. 31(2)(a), 146 n. 86 Art. 31(3), 134, 135 n. 39, 146 n. 86, 164 n. 168, 168 n. 184 Art. 31(3)(a), 141 n. 67, 165 n. 173, 166 n. 177, 167 n. 183 Art. 31(3)(b), 57, 139 n. 58, 141 n. 67, 146 n. 86, 161, 164 n. 168, 165 n. 173, 166 nn. 177 and 178, 167 n. 183, 204 n. 153, 1173 n. 207 Art. 31(3)(c), 146 n. 88, 147, 546 n. 1298 Art. 31(4), 134 Art. 32, 135 n. 39, 135, 136 n. 41, 150–153, 154 n. 121, 161 n. 156, 163 n. 163, 165 n. 173, 166–168, 170, 204 n. 153 Art. 32(a), 151 n. 108 Art. 33, 151 n. 108 Art. 33(1), 137 n. 49 Art. 34, 142 n. 69, 398 n. 464 Art. 35, 142 n. 69, 398 n. 464 Art. 53, 436 n. 667 Sept. 10 OAU/AU Convention Governing Specific Aspects of Refugee Problems in Africa (1001 UNTS 45 [UNTS 14691]), 68–71 Preamble, 69 n. 257, 71 n. 268 Art. I(2), 67 n. 252

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Art. I(4)(e), 69 n. 261 Art. I(4)(g), 67 n. 252 Art. II(1), 69 n. 259 Art. II(3), 69 n. 260, 70 n. 262 Art. II(6), 71 n. 272, 131 n. 24 Art. III, 131 n. 24, 1057 n. 807, 1071, 1072 n. 891, 1082 Art. III(2), 71 n. 270 Art. IV, 70 n. 265 Art. V, 69 n. 261 Art. V(2), 70 n. 264 Art. V(4), 70 n. 263 Art. V(5), 70 n. 264 Art. VI, 71 n. 274 Art. VI(2), 71 n. 274 Art. VII, 70 n. 266 Art. VIII(2), 69 n. 258 Nov. 22 American Convention on Human Rights (1144 UNTS 123 [UNTS 17955]), 78 n. 323 Art. 21, 646 Art. 21(2), 655 n. 1998 Art. 22(7), 77, 80 1970 Nov. 4 Declaration on the Principles of International Law concerning Friendly Relations and Cooperation Among States (UNGA Resolution 2625(XXV)), 1082 n. 954 1971 Oct. 29 Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of their Phonograms (866 UNTS 67 [UNTS 12430]) Art. 2, 909 n. 567 1975 Convention concerning Migrant Workers (Supplementary Provisions) (ILO Convention No. 143), 85 n. 376 1979 Dec. 18 Convention on the Elimination of All Forms of Discrimination Against Women (1249 UNTS 13 [UNTS 20378]), 5 n. 19, 147 n. 93, 753 n. 2541, 1162 n. 157 Art. 16, 649 n. 1956 1980 Oct. 16 European Agreement on Transfer of Responsibility for Refugees (107 ETS), 1090 n. 1009 Art. 2, 1107 n. 1068 Oct. 25 Hague Convention on International Access to Justice ([UNTS 26112]), 916

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1981 June 26 African Charter on Human and Peoples’ Rights (OAU Doc. CAB/LEG/67/3 rev. 5; 21 ILM 58 (1982)) Art. 14, 647 n. 1944 Dec. 9 Declaration on the Inadmissibility of Intervention in the Internal Affairs of States (UNGA Resolution 103(XXVI)) Art. II(b), 1081 n. 953 1984 Nov. 19 Cartagena Declaration on Refugees (OAS), 77–79 Art. II(f), 78 n. 324 Art. II(h), 79 n. 327 Art. II(l), 78 Art. II(p), 79 Art. III(1), 77 Art. III(3), 67 n. 252 Art. III(5), 78 n. 324 Art. III(6), 79 Art. III(8), 78 n. 323 Art. III(11), 79 n. 327 Art. III(12), 78 Dec. 10 UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1465 UNTS 85 [UNTS 24841]), 295 n. 646, 399 n. 474, 462 n. 825 Art. 1(1), 572 n. 1465 Art. 2, 565 n. 1416 Art. 3, 398, 842 n. 181 Art. 3(1), 459 1985 Dec. 13 Declaration on the Human Rights of Individuals Who are Not Nationals of the Country in which They Live (UNGA Resolution 40/144), 85 n. 373 1986 Dec. 4 Declaration on the Right to Development (UNGA Resolution 41/128), 94 n. 413 1989 June 27 Indigenous and Tribal Peoples Convention (ILO Convention No. 169), 753 n. 2541 Nov. 20 Convention on the Rights of the Child (1577 UNTS 3 [UNTS 27531]), 5 n. 19, 87 n. 386, 147 n. 93, 531, 678 n. 2132, 753 n. 2541, 1162 n. 157 Art. 2, 1166 n. 178 Art. 3, 84 n. 372, 1164 n. 172, 1167, 1168 n. 185 Art. 3(1), 460 n. 818, 1167 Art. 7, 1210 n. 404

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Art. 8, 1166 n. 178 Art. 9, 1164 n. 172, 1166 n. 178, 1168 Art. 9(1), 677, 1168, 1170 Art. 9(3), 679 Art. 9(4), 1168 Art. 10, 687 n. 2180, 1166 n. 178, 1168 n. 185 Art. 10(1), 679 Art. 14(1) and (2), 729 n. 2415 Art. 19, 565 Art. 20, 565 Art. 22, 565 Art. 22(1), 363 n. 278 Art. 34, 565 Art. 35, 565 Art. 36, 565 Art. 37, 565 Art. 37(b), 531 n. 1193 1990 June 15 Convention Determining the State Responsible for Examining Applications for Asylum Lodged in One of the Member States of the European Community (Dublin Convention) (OJ 1990 L254; 30 ILM 425 (1991)), 370 July 11 African Charter on the Rights and Welfare of the Child (OAU Doc. CAB/ LEG/24.9/49) Art. 23, 70 n. 265 Dec. 15 Agreement on Trade-Related Aspects of Intellectual Property Rights, Including Trade in Counterfeit Goods (TRIPS Agreement) (33 ILM 81 (1994)), 910–911, 912 n. 583 Dec. 18 International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (2220 UNTS 3 [UNTS 39481]), 85 Art. 3(d), 85 Art. 15, 649 n. 1956 1994 Arab Convention on Regulating Status of Refugees in Arab Countries (Not in force), 81–82 Preamble, 81 Art. 1(2), 67 n. 252 Art. 3, 81 Art. 4, 81 Art. 5, 82 Art. 7, 81 Art. 9, 81

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1994 (cont.) Art. 12, 82 Art. 13, 82 Art. 17, 82 1996 Dec. 20 WIPO Performances and Phonograms Treaty (36 ILM 76 (1997)), 912 n. 583 Art. 1(3), 910 n. 572 Art. 3, 910 1997 Oct. 2 Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the European Communities and certain related Acts (OJ 1997 C340/1) Art. 63, 72 n. 278 Protocol on Asylum for Nationals of Member States of the European Union, 269 n. 506, 335 n. 125 Nov. 6 European Convention on Nationality (166 ETS) Art. 4(g), 1216 n. 437 1998 July 17 Rome Statute of the International Criminal Court (2187 UNTS 90 [UNTS 38544]) Art. 7, 873 n. 341 Art. 15, 481 n. 920 2000 May 26 Constitutive Act of the African Union Art. 33(1), 68 n. 256 Sept. 29 Benelux Economic Union, FRG, France, Convention implementing the Schengen Agreement on the gradual abolition of checks at their common borders (OJ 2000 L239) Art. 26, 483 n. 933 Nov. 15 Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime (2241 UNTS 507 [UNTS 39574]) Art. 8(2), 387 Art. 8(7), 387 Dec. 7 Charter of Fundamental Rights of the European Union (OJ 2012 C326/02), 76 n. 305 Art. 18, 72 n. 279, 77 n. 310, 132 n. 27, 823 n. 80 Art. 19(1), 77

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2001 June 28 Council Directive 2001/51/EC supplementing the provisions of Article 26 of the Convention implementing the Schengen Agreement of 28 June 2001 (Schengen Directive) (OJ 2001 L187/46) Arts. 4(2) and (3), 483 n. 933 July 20 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 (Temporary Protection Directive) (OJ 2001 L12/46), 72, 1023 Art. 6(2), 1163 n. 160 Art. 12, 929 n. 27, 955 n. 179 Art. 13, 76 n. 308, 1018 n. 532 Art. 13(1), 76 n. 308, 1034 n. 652 Art. 13(2), 1024 n. 577 Art. 15, 77, 667 n. 2077 Art. 17(1), 1024 n. 577 Dec. 13 Declaration of States Parties to the 1951 Convention and/or its 1967 Protocol (18 UNGA Resolution A/RES/57/187), 59 n. 211, 144 n. 77, 157 n. 135 2002 Dec. 24 Treaty establishing the European Community (Treaty of Nice consolidated version) (2002/C325.01) Art. 68, 73 n. 288 2003 Jan. 27 Council Directive 2003/9/EC laying down minimum standards for the reception of asylum-seekers (Reception Directive) (OJ 2003 L 31/18), 72 Art. 7(1), 885 n. 419 Art. 15, 76 n. 307 Art. 16(2), 608 n. 1683 Sept. 22 Council Directive 2003/86/EC on the right to family reunification (Family Reunification Directive) (OJ 2003 L251/12), 77 n. 314, 691 n. 2202 Art. 3(2)(a), 666 n. 2073 Art. 3(2)(b) and (c), 667 n. 2077 Art. 4, 695 Art. 4(2), 668 n. 2082 Art. 4(3), 668 n. 2083 Art. 4(4), 668 n. 2084 Art. 6(1), 669 n. 2090 Art. 7(1), 669 n. 2089 Art. 8, 670 n. 2094 Art. 9(2), 668 n. 2085

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2003 (cont.) Art. 12(1), 669 n. 2088 2005 Dec. 1 Council Directive 2005/85/EC on minimum standards on procedures in Member States for granting and withdrawing refugee status (Asylum Procedures Directive) (OJ 2005 L326/13) Art. 30(3), 375 n. 339 2006 Dec. 20 International Convention for the Protection of All Persons against Enforced Disappearance (2716 UNTS 3 [UNTS 48088]) Art. 16(1), 438 n. 683, 460 n. 817 2007 Jan. 24 Convention on the Rights of Persons with Disabilities (2515 UNTS 3 [UNTS 44910]), 5 n. 19 2011 Dec. 13 Council Directive 2011/95/EU on standards for the qualification of thirdcountry nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (Qualification Directive) (OJ 2011 L337/9), 72, 74 n. 294, 132 n. 28, 959 Preamble, 73 n. 286, 77 n. 310, 1017 n. 525, 1215 n. 431 Art. 2(b), 74 n. 295, 75 n. 298 Art. 11(2), 1141 n. 67, 1145 n. 83 Art. 11(3), 1174 n. 214 Art. 13, 77 n. 310 Art. 14(4) and (5), 400 n. 477 Art. 15, 68 n. 253 Art. 16(1), 894 n. 481 Art. 16(3), 894 n. 481 Art. 18, 74 n. 295 Art. 20(1), 73 n. 287 Art. 22, 77 Art. 23, 77 Art. 24, 77 Art. 24(1), 1115 n. 1118 Art. 25, 76 n. 309, 1089 n. 999 Art. 26(1), 891 n. 452, 928 n. 23, 954 n. 178 Art. 26(2), 741 n. 2481 Art. 27, 75 n. 298 Art. 27(1), 735 n. 2450

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Art. 27(2), 740 n. 2479 Art. 28(1), 741 n. 2485, 995 n. 381 Art. 28(2), 741 n. 2485, 995 n. 382 Art. 29(1), 1016 n. 515, 1019 n. 540 Art. 29(2), 1017 n. 524 Art. 30, 76 n. 308 Art. 32(1), 1035 n. 653 Art. 32(2), 1035 n. 653 Art. 33, 75 n. 297 Art. 34, 77 2012 Nov. 18 ASEAN Human Rights Declaration, 82–84 Preamble, 82 Art. 15, 84 Art. 16, 83 n. 364 2013 June 26 Regulation (EU) 604/2013 of the European Parliament and of the Council establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (Dublin Regulation (recast)) (OJ 2013 L180/31), 72, 330 n. 98, 366, 374, 538 n. 1237, 823, 1126 n. 1183, 1196 n. 330 Art. 3, 75 n. 302 Art. 3(1), 77 n. 310 Arts. 7–15, 330 n. 99 Arts. 9–11, 77 Art. 28(1), 473 n. 881 June 26 Council Directive 2013/32/EU on common procedures for granting and withdrawing international protection (recast) (Procedures Directive) (OJ 2013 L180/60), 72 Art. 2(g), 335 n. 125 Art. 2(n), 473 n. 881 Art. 6, 77 n. 310 Art. 13, 39 n. 106 Art. 20, 918 n. 620 Art. 20(3), 918 n. 621 Art. 21, 918 n. 620 Art. 21(2)–(4), 918 n. 621 Art. 31(7), 517 n. 1115 Art. 31(8)(c–d), 517 n. 1115

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2013 (cont.) Art. 37, 335 n. 124 Art. 38(1), 332 n. 112 Art. 46, 806 n. 2851 Art. 46(2), 807 n. 2852 Art. 46(6) and (7), 784 n. 2724 Annex I, 269 n. 507 June 26 Directive 2013/33/EU laying down standards for the reception of applicants for international protection (Reception Conditions Directive) (OJ 2013 L180/96), 72, 73 n. 287 Art. 2(g), 75 n. 301, 866 n. 311 Art. 6(5), 76 n. 309 Art. 7(1), 131 n. 25 Art. 7(1) and (2), 74 n. 296, 865 Arts. 9–11, 77 n. 312, 77 Art. 14(1), 75 n. 298, 736 n. 2457, 742 n. 2486 Art. 14(2), 736 n. 2457 Art. 15, 76 n. 307, 964 n. 234 Art. 15(1), 74 n. 295, 131 n. 25, 928 n. 24, 954 n. 178 Art. 16, 741 n. 2481 Arts. 17–19, 76 n. 308 Art. 20(1), 75 n. 301

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ABBREVIATIONS FOR COURTS AND TRIBUNALS CITED

AComHPR Au. HC Au. UBAS Aus. FC Aus. FFC Aus. HC Aus. Vic. SC Bel. CPRR Can. FC Can. FCA Can. FCTD Can. IRB Can. SC CJEU Dmk. SC Ec. CC EComHR ECtHR Eng. CA Eng. ChD Eng. HC Eng. QBD Fin. SC Fr. CE Ger. AC Ger. FAC Ger. FCC Ger. FCJ Gr. CS HK CFA HK HC Hun. DC IAComHR

African Commission on Human and Peoples’ Rights Austria, High Court Austria, Asylum Board Australia, Federal Court Australia, Full Federal Court Australia, High Court Australia, Victoria, Supreme Court Belgium, Permanent Refugee Appeals Commission Canada, Federal Court Canada, Federal Court of Appeal Canada, Federal Court, Trial Division Canada, Immigration and Refugee Board Canada, Supreme Court Court of Justice of the European Union Denmark, Supreme Court Ecuador, Constitutional Court European Commission on Human Rights European Court of Human Rights England, Court of Appeal England, Chancery Division England, High Court England, Queen’s Bench Division Finland, Supreme Court France, Conseil d’État (Council of State) Germany, Administrative Court Germany, Federal Administrative Court Germany, Federal Constitutional Court Germany, Federal Court of Justice Greece, Council of State Hong Kong, Court of Final Appeal Hong Kong, High Court Hungary, District Court Inter-American Commission on Human Rights lxvii

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a bb r e v i a tio n s f o r c o u r ts a n d t r i b u na l s c i te d

IACtHR ICC ICJ ICTY In. SC Ir. CA Ir. HC Ir. SC Isr. SC Isr. HCJ Jp. Osaka HC Jp. SC Jp. Tokyo DC Jp. Tokyo HC Ken. HC Neth. DC Neth. SC Nor. SC NZ CA NZ HC NZ IPT NZ RSAA NZ SC PCIJ Phil. SC PNG SCJ SA CC SA HC SA SCA Sc. CSOH Sw. FAC UK AIT UK HL UK SC UK SIAC UK UT-IAC US AG US BIA US CA1

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Inter-American Court of Human Rights International Criminal Court International Court of Justice International Criminal Tribunal for the former Yugoslavia India, Supreme Court Ireland, Court of Appeal Ireland, High Court Ireland, Supreme Court Israel, Supreme Court Israel, High Court of Justice Japan, Osaka, High Court Japan, Supreme Court Japan, Tokyo District Court Japan, Tokyo High Court Kenya, High Court Netherlands, District Court Netherlands, Supreme Court Norway, Supreme Court New Zealand, Court of Appeal New Zealand, High Court New Zealand, Immigration and Protection Tribunal New Zealand, Refugee Status Appeals Authority New Zealand, Supreme Court Permanent Court of International Justice Philippines, Supreme Court Papua New Guinea, Supreme Court of Justice South Africa, Constitutional Court South Africa, High Court South Africa, Supreme Court of Appeal Scotland, Court of Session, Outer House Switzerland, Federal Administrative Court United Kingdom, Asylum and Immigration Tribunal United Kingdom, House of Lords United Kingdom, Supreme Court United Kingdom, Special Immigration Appeals Commission United Kingdom, Upper Tribunal, Immigration and Asylum Chamber United States, Attorney General United States, Board of Immigration Appeals United States, 1st Circuit Court of Appeals

abbreviati ons f or courts and t ribunals cited

US CA2 US CA3 US CA4 US CA5 US CA6 US CA7 US CA8 US CA9 US CA10 US CA11 US CADC US DCCa US DCDC US DCNY US IC US SC US WVSCA WTO AB WTO Panel

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United States, 2nd Circuit Court of Appeals United States, 3rd Circuit Court of Appeals United States, 4th Circuit Court of Appeals United States, 5th Circuit Court of Appeals United States, 6th Circuit Court of Appeals United States, 7th Circuit Court of Appeals United States, 8th Circuit Court of Appeals United States, 9th Circuit Court of Appeals United States, 10th Circuit Court of Appeals United States, 11th Circuit Court of Appeals United States, Court of Appeal, District of Columbia United States, District Court, California United States, District Court, District of Columbia United States, District Court, New York United States, Immigration Court United States, Supreme Court United States, West Virginia Supreme Court of Appeal World Trade Organization Appellate Body World Trade Organization Panel

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u Introduction

The two core concerns of international refugee law are, first, qualification for refugee status and, second, the rights that follow from refugee status. The first of these questions has attracted by far the greater attention: While courts have engaged heavily with the question of who qualifies as a refugee . . . there has not been the same level of engagement with the remedy: refuge. Accordingly, what can be observed are the beginnings of an asymmetrical development between questions of who qualifies for protection, and the nature of the protection that is owed.1

This analytical gap can be explained at least in part by reference to the tradition of most developed states simply to admit refugees, formally or in practice, as long-term or permanent residents. While not required by the Refugee Convention,2 this approach led de facto to respect for most Convention rights (and often more). Because refugee rights were not at risk, there was understandably little perceived need to elaborate their meaning. Today, however, governments of the industrialized world increasingly question the logic of routinely assimilating refugees, and have therefore sought to limit their access to Convention rights. Most commonly, questions are now raised about whether refugees should be allowed to enjoy freedom of movement, to work, to access public welfare programs, or to be reunited with family members. In some states, doubts have been expressed about the propriety of exempting refugees from compliance with visa and other immigration rules, and even about whether there is really a duty to admit refugees at all. There is also a marked interest in the authority of states to contract-out protection responsibilities to other countries and otherwise to divest themselves of even such duties of protection as are recognized.3 1

2 3

K. Ogg, “Protection from ‘Refuge’: On What Legal Grounds will a Refugee be Saved from Camp Life?,” (2016) 28(3) International Journal of Refugee Law 384, at 414–415. See Chapters 4.1 and 7.4. See e.g. G. Noll, Negotiating Asylum: The EU Acquis, Extraterritorial Protection, and the Common Market of Deflection (2000); T. Gammeltoft-Hansen, Access to Asylum: International Refugee Law and the Globalisation of Migration Control (2011); and D. Ghezelbash, Refuge Lost: Asylum Law in an Interdependent World (2018).

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This distancing of developed states from respect for the rules of refugee protection sadly mirrors the traditional approach in much of the less developed world. For reasons born of both pragmatism and principle, poorer countries – which host the overwhelming majority of the world’s refugees4 – have rarely contested the eligibility for refugee status of those arriving at their borders.5 Yet this conceptual generosity has not always been matched by efforts to treat those refugees allowed to stay in line with duties set by the Refugee Convention. In far too many cases, refugees in less developed states have been detained, socially marginalized, left physically at-risk, or effectively denied the ability to meet basic needs. While law alone cannot of course ensure that refugees are protected, it nonetheless affords a means by which to contest their exclusion. Two points of departure are critical in my view. First, there is a need clearly to understand the rights that follow from refugee status. As the analysis in this book shows, the rights set by the Refugee Convention and which bind three-quarters of states,6 are in no sense anachronistic. Neither are they defined in absolutist terms that fail to take account of legitimate asylum state interests. Properly understood and applied, the rights regime set by the Convention is extraordinarily balanced and resilient. Indeed, senior national courts in many parts of the world are more than ever rising to the challenge of engaging with refugee rights, as the analysis of comparative jurisprudence in this book makes clear.7 It is the responsibility of scholars and advocates to support that engagement. Second and equally important, we must acknowledge that refugee law does not provide an answer to all threats to the dignity of refugees. Like all bodies of law, refugee law is imperfect. Some of its weaknesses are, however, remedied by reliance on general norms of international human rights law8 – the most fundamental norms of which inhere in all persons under a state party’s jurisdiction, including refugees.9 Nearly as important, international human rights standards are continually updated and applied to emerging situations by 4

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“Countries in developed regions hosted 16 per cent of refugees, while one third of the global refugee population (6.7 million people) were in the Least Developed Countries”: United Nations High Commissioner for Refugees, “Global Trends: Forced Displacement in 2018” (2019), at 2. Indeed, both Africa and Latin America have formally embraced broader understandings of refugee status than required by the Refugee Convention: see Chapter 1.5.3. There are 148 state parties to the Refugee Convention and/or Protocol: https://treaties.un .org, accessed Dec. 21, 2020. This book is conceived largely as a work of comparative international law: see A. Roberts et al., “Comparative International Law: Framing the Field,” (2015) 109(3) American Journal of International Law 467. See generally Chapter 1.5.4. See Chapter 1.5.4 at notes 388–390 (re Civil and Political Covenant) and 400–403 (re Economic, Social and Cultural Covenant).

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international supervisory bodies established by states – a mechanism that refugee law sadly still lacks. International human rights law is thus a critical ally in the struggle to ensure that refugees are treated fairly. Yet as important as it is, international human rights law – just like international refugee law – is no panacea. As the analysis below shows, even as human rights law contributes in critical ways to the protection of refugees, its standards are at times insufficiently tailored, too open to exceptions, or simply not addressed to the types of dilemmas that refugees face.10 Taken together, these two imperatives therefore amount to a need to acknowledge both the value and the weaknesses of each of international refugee law and general international human rights law. The foundational premise that underlies the detailed analysis in the chapters that follow is that neither body of law is as effective standing alone as it is read in tandem with the other. Only by approaching refugee rights in a holistic way, blending analysis of duties under both the Refugee Convention and general human rights law, is it possible to arrive at a definition of entitlements that optimizes the ability of refugees to remake their lives.11 This book is therefore designed clearly to adumbrate, in both theoretical and applied terms, a creative synthesis of imperfect norms. To capture the core of this synthesized obligation, this book engages in detail not only with the norms set by the Refugee Convention, but also with the rights codified in the two foundational treaties of the international human rights system, the International Covenant on Civil and Political Rights and its companion International Covenant on Economic, Social and Cultural Rights.12 The decision to present a merged analysis of refugee rights and rights grounded in the two Human Rights Covenants is moreover defensible in view of the unique interrelationships between these particular treaties and refugee protection. First, more than 95 percent of state parties to the Refugee Convention or Protocol have also signed or ratified both of the Human Rights Covenants.13 Second, about 98 percent 10 11

12

13

See Chapter 1.5.4 at notes 393–446. Indeed, the synthesis of refugee and international human rights law is not simply allowed, but is rather clearly mandated by refugee law itself: see Chapters 1.4.5 and 1.5.4. International Covenant on Civil and Political Rights, 999 UNTS 172 (UNTS 14668), adopted Dec. 16, 1966, entered into force Mar. 23, 1976 (Civil and Political Covenant); International Covenant on Economic, Social and Cultural Rights, 993 UNTS 3 (UNTS 14531), adopted Dec. 16, 1966, entered into force Jan. 3, 1976 (Economic, Social and Cultural Covenant). Of the 148 state parties to the Refugee Convention and/or Protocol, only three have not signed or ratified either of the Human Rights Covenants: Holy See, St. Kitts and Nevis, and Tuvalu. Four have signed or ratified only the International Covenant on Civil and Political Rights: Botswana, Mozambique, Nauru, and Samoa. One state party to the Refugee Convention, Solomon Islands, has signed or ratified only the International Covenant on Economic, Social and Cultural Rights: https://indicators.ohchr.org, accessed Mar. 20, 2020.

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of the world’s refugees reside in states which have signed or ratified the two Covenants on Human Rights.14 As such, both in principle and in practice, refugee rights will in the majority of cases consist of an amalgam of principles drawn from both refugee law and the Covenants. Third, the Covenants and the Refugee Convention aspire to comparable breadth of protection, and set consistently overlapping guarantees. As will be clear from the analysis below, even when refugee law is the source of a stronger or more contextualized form of protection on a given issue, it is usually the case that one or both of the Covenants contribute in some way to clarify the relevant responsibilities of states. In order comprehensively to define the core rights to which all refugees are entitled, this book does not address other than incidentally a variety of related issues. Most obviously, it is not a study of the refugee definition.15 Neither does it seek to explain the work of the international institutions charged with the protection of refugees,16 or the ways in which the refugee protection regime as a whole could be more effectively configured.17 Nor does this book present a detailed analysis of the full range of highly specialized human rights treaties established by the United Nations and regional bodies.18 The decision to avoid canvassing all potentially pertinent international human rights was not taken lightly, since it is clearly correct that particular refugees also benefit from the protection of specialized branches of international human rights law. Refugees who are members of other internationally protected groups, such as racial minorities, disabled persons, women, or children, may avail themselves of specialized treaty rights in most 14

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https://indicators.ohchr.org, accessed Mar. 20, 2020, and United Nations High Commissioner for Refugees, “Global Trends: Forced Displacement in 2018” (2019), at Annex, Table 1. The two most critical exceptions are Malaysia (which hosts some 120,000 refugees) and South Sudan (which hosts more than 290,000 refugees). Neither of these countries is a party to the Refugee Convention or Protocol either. The scope of the Convention refugee definition in international and comparative law is analyzed in detail in J. Hathaway and M. Foster, The Law of Refugee Status (2014), conceived as the companion volume to this book. See also relevant portions of G. Goodwin-Gill and J. McAdam, The Refugee in International Law (2007), at Part I(1), and of A. Grahl-Madsen, The Status of Refugees in International Law (vol. I, 1966), at 142–304. On this issue, see e.g. G. Loescher, The UNHCR and World Politics: A Perilous Path (2001); A. Helton, The Price of Indifference: Refugees and Humanitarian Action in the New Century (2002); A. Betts, G. Loescher, and J. Milner, The United Nations High Commissioner for Refugees (UNHCR): The Politics and Practice of Refugee Protection into the 21st Century (2008); and K. Bergtora Sandvik and K. Lindskov Jacobsen eds., UNHCR and the Struggle for Accountability (2017). See e.g. J. Hathaway ed., Reconceiving International Refugee Law (1997); A. Betts and P. Collier, Refuge: Transforming a Broken Refugee System (2017); and A. Aleinikoff and L. Zamore, The Arc of Protection: Reforming the International Refugee Regime (2019). It is important to recognize that the UN Covenants on Human Rights set the duties that inspired and are applied in the many more specialized accords.

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states.19 Other refugees will be entitled to claim rights and remedies in consequence of their reasons for flight, a matter of particular importance to those who have escaped from war.20 Still other refugees will be received in parts of the world that have adopted regional human rights conventions now clearly understood to embrace non-nationals, or in which there is a regional refugee protection regime.21 The decision not to engage in depth22 with the full range of regional refugee and human rights norms or even with globally applicable but more specialized human rights obligations in no way reflects a view that these standards are not of real importance to refugees. They are not, however, standards that apply universally to all refugees: only a subset of refugees are women, or children, or disabled, or members of racial minorities. An even smaller percentage of refugees can claim the protection of any one of the regional human rights or refugee treaties. Because of the specialized nature of these accords, they cannot reasonably be invoked in aid of the goal of this study, that being to define the common core of human rights entitlements that inhere in all refugees, in all parts of the world, simply by virtue of being refugees. This more foundational, and hence more limited enterprise is designed to elaborate the common corpus of refugee rights that can be asserted by refugees, whatever the refugee’s specific identity or circumstances. Others have, of course, gone beyond this basic analysis to define the entitlements of sub-groups of the refugee population entitled to claim additional protections.23 19

20

21 22

23

Of particular importance are the International Convention on the Elimination of All Forms of Racial Discrimination, 60 UNTS 195 (UNTS 9464), adopted Dec. 21, 1965, entered into force Jan. 4, 1969; the Convention on the Elimination of All Forms of Discrimination against Women, 1249 UNTS 13 (UNTS 20378), adopted Dec. 18, 1979, entered into force Sept. 3, 1981; the Convention on the Rights of the Child, 1577 UNTS 3 (UNTS 27531), adopted Nov. 20, 1989, entered into force Sept. 2, 1990; and the Convention on the Rights of Persons with Disabilities, 2515 UNTS 3 (UNTS 44910), adopted Jan. 24, 2007, entered into force May 3, 2008. See e.g. T. Meron, Human Rights and Humanitarian Norms as Customary Law (1989), at 3–78; and D. Cantor and J.-F. Durieux eds., Refuge from Inhumanity? War Refugees and International Humanitarian Law (2014). See Chapter 1.5.3. See note 23 for leading analyses of these regional refugee regimes. More limited analysis of these sources of obligation is, however, provided in Chapters 1.5.3 and 1.5.4. On specialized applications of refugee law to important refugee populations see in particular E. Arbel, C. Dauvergne, and J. Millbank eds., Gender in Refugee Law: From the Margins to the Centre (2014); J. Pobjoy, The Child in International Refugee Law (2017); and M. Crock, M. Smith-Khan, R. McCallum, and B. Saul, The Legal Protection of Refugees With Disabilities: Forgotten and Invisible? (2017). On regional refugee regimes see generally A. Abass and F. Ippolito eds., Regional Approaches to the Protection of Asylum Seekers: An International Law Perspective (2016) and P. Mathew and T. Harley, Refugees, Regionalism and Responsibility (2016). With respect to specific regional regimes see re Europe H. Battjes, European Asylum Law and International Law (2006) and V. Chetail, P. DeBruycker, and F. Maiani eds., Reforming the Common European Asylum System

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In conceiving this work, an effort has been made to be attentive to the central importance of facts. Because a work of scholarship on refugee rights seems more likely to be of value if it does not restrict itself simply to the elucidation of legal norms in abstract terms, the treatment of each right in this book begins with an overview of relevant protection challenges in different parts of the world. Some cases present the current realities faced by refugees; others highlight important protection challenges in the recent past. An effort has also been made to include examples from all parts of the world, and impacting diverse refugee populations. The analysis that follows seeks to engage with these practical dilemmas, and to suggest how refugee law and cognate norms of human rights law should guide their resolution. This approach reflects a strong commitment to the importance of testing the theoretical elucidation of human rights standards against the hard facts of protection dilemmas on the ground. The hope is that by taking this approach, the reliability of the analysis presented here is strengthened, and the normative implications of the study are made more clear. Chapter 1 provides an overview of the development of the international refugee rights regime. It begins by tracing the origins of refugee rights in the international law on aliens, through to its codification in the present Convention and Protocol relating to the Status of Refugees. This chapter also introduces the essential approach of the foundational refugee treaties, and shows how the Convention and Protocol have been complemented both by authoritative guidance from the Executive Committee of the High Commissioner’s Program and the evolution of regional refugee rights regimes. Particular attention is paid to the role of contemporary treaties on human rights, and especially to general norms of non-discrimination law as protective mechanisms for refugees. The chapter concludes by explaining why, despite progress in related fields of law, the specific entitlements set by refugee law remain fundamental to ensuring the human dignity of refugees. Chapter 2 introduces basic principles relevant to interpretation of the refugee and general human rights treaties that are drawn upon in the chapters that follow. The analysis here suggests that there are powerful reasons to defer neither to literalism nor to state practice in discerning the true meaning of these accords. To the contrary, it is both legally correct and more substantively productive to construe the text of refugee and other human rights treaties in the light of their context, object and purpose. Attention to context demands, in particular, consideration of the interpretations of cognate rights rendered by United Nations treaty supervisory bodies. And engagement with object and purpose must proceed from an awareness of the history of the Convention’s (2016); re Africa M. Sharpe, The Regional Law of Refugee Protection in Africa (2018); and re Latin America L. Jubilut, M. Vera Espinoza, and G. Mezzanotti eds., Latin America and Refugee Protection: Regimes, Logics and Challenges (forthcoming 2021).

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drafting, even as this evidence of historical intention is balanced against more contemporary evidence of the social and legal context within which original intentions are now to be implemented. Chapter 3 introduces the rather unique principles governing entitlement to claim the rights set by the Refugee Convention. As a fundamental principle, the acquisition of international refugee rights is based not on formal status recognition by a state or agency, but rather follows simply and automatically from the fact of substantive satisfaction of the refugee definition.24 Despite this critical understanding of refugee status determination as a purely declaratory process, the Refugee Convention does not grant all rights immediately and absolutely to all refugees. To the contrary, it strikes a reasonable balance between meeting the needs of refugees and respecting the legitimate concerns of state parties. In this sense, the Convention reflects the commitment of the drafters to the establishment of a treaty that is both politically realistic, and of positive benefit to refugees.25 Specifically, while all refugees benefit from a number of core rights, additional entitlements accrue as a function of the nature and duration of their attachment to the asylum state. Some rights inhere as soon as the refugee comes under a state’s authority; a second set when he or she enters its territory; others once the refugee is lawfully or habitually within the territory of a state party; a fourth group only when the refugee is lawfully staying there; and a few rights govern the pursuit of a durable solution to refugeehood. The nature of the duty to extend rights to refugees is moreover defined through a combination of absolute and contingent criteria. A small number of rights are guaranteed absolutely to refugees, and must be respected even if the host government does not extend these rights to anyone else, including to its own citizens. More commonly, though, the standard for compliance varies in line with the relevant treatment afforded another group under the laws and practices of the receiving country. Under these contingent rights standards, the scope of entitlement is conceived as a function of the rights of aliens generally, of the nationals of most-favored states, or as equivalent to those afforded citizens of the host country itself. The Refugee Convention moreover incorporates an overarching duty of non-discrimination between and among refugees, and strictly limits the ability of states to suspend refugee rights, even for national security reasons. Chapters 4–7 are the heart of this book. They offer a detailed analysis of the substance of refugee rights, drawing on both the norms of the Refugee Convention itself and on cognate standards set by the Covenants on Human Rights. Rather than grouping rights on the basis of traditional categories (e.g. 24 25

See Chapter 3.1. See generally J. Hathaway and A. Cusick, “Refugee Rights Are Not Negotiable,” (2000) 14(2) Georgetown Immigration Law Journal 481.

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civil, political, economic, social, or cultural), these chapters are structured around the evolution of the refugee experience itself. This organizational structure aligns with the Refugee Convention’s commitment, described in Chapter 3, to define eligibility for protection on the basis of degrees of attachment to the host state.26 Chapter 4 therefore addresses those rights agreed to be immediately (if provisionally) acquired upon coming under the jurisdiction of a state party, as well as those which inhere upon reaching its territory, even before any steps have been taken to verify refugee status. These initial rights speak to the extraordinary personal vulnerability of asylum-seekers, and to the importance of safeguarding their most basic interests until and unless a decision is taken formally to verify their refugee status. Chapter 5 examines a second set of modestly more extensive human rights deemed suited to the condition of refugees who are not simply physically present, but who are now lawfully or habitually present – including by having satisfied national requirements to undergo the assessment of their refugee status. As in the case of the first set of rights, these enhanced protections inhere until and unless a decision is reached to deny recognition of refugee status. Chapter 6 considers the additional rights that are owed after a refugee is authorized to remain in the asylum country – that is, once having been recognized as a refugee or otherwise allowed to remain on an ongoing basis. These rights focus on interests understood to be necessary to ensuring that the refugee can establish a durable and fully dignified life until and unless the reasons for departure from the home state come to an end. Chapter 7 takes up a final group of refugee rights associated with the movement toward the solution of refugee status, whether this is by way of repatriation, voluntary reestablishment in the home country, resettlement in a third country, or by naturalization in the host state. The thesis driving this study is that the specificity of refugee entitlements is too often ignored – not only by those governments which often treat refugees as little more than the beneficiaries of humanitarian discretion, but even at times by scholars and advocates who too readily assume that generic human rights law is a sufficient answer to the needs of refugees. In truth, a clear understanding of the content and interrelationship of both refugee-specific and general human rights is critical. While the structures by which refugee law is implemented are no doubt in need of creative reinvigoration,27 the fact that states have expressly recognized the Convention and Protocol as “the 26

27

It is also hoped that adoption of a chapter structure which draws attention to the delays set by refugee law for the acquisition of rights will facilitate critical assessment of the Convention’s implicit assumptions regarding the timing and duration of the legal commitment to protection. See note 17.

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foundation of the international protection regime [with] enduring value and relevance in the twenty-first century”28 makes clear that refugee law remains a vitally important mechanism by which to hold states accountable for the ways they treat refugees. Indeed, in an era in which there is no more than selective ability and inclination to put down human rights abuse abroad, and in which general human rights afford few immediate and self-actuating sources of relief, refugee law stands out as the single most effective, truly autonomous remedy for those who simply cannot safely remain in their own countries. The surrogate protection of human rights required by refugee law is too valuable not to be widely understood, and conscientiously implemented. 28

“Ministerial Communiqué,” UN Doc. HCR/MIN/COMMS/2011/16, Dec. 8, 2011, at [2].

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1 The Evolution of the Refugee Rights Regime

The origins of refugee rights are closely intertwined with the emergence of the general system of international human rights law. Like international human rights, the refugee rights regime is a product of the twentieth century. Its contemporary codification by the United Nations took place just after the adoption of the Universal Declaration of Human Rights, and was strongly influenced by the Declaration’s normative structure. In a more fundamental sense, though, the refugee rights regime draws heavily on the earlier precedents of the law of responsibility for injuries to aliens and international efforts to protect national minorities. This chapter highlights the conceptual contributions made by each of these bodies of international law to the emergence of specific treaties to govern the human rights of refugees. It then introduces the essential structure of the 1951 Refugee Convention,1 still the primary source of refugee-specific rights in international law. Finally, this chapter takes up the question of the relationship between the refugee rights regime and subsequently enacted treaties, particularly those that establish binding norms of international human rights law. The view is advanced that refugee rights should be understood as a mechanism by which to answer situation-specific vulnerabilities that would otherwise deny refugees meaningful benefit of the more general system of human rights protection. Refugee rights do not exist as an alternative to, or in competition with, general human rights. Nor, however, has the evolution of a broad-ranging system of general human rights treaties rendered the notion of refugee-specific rights redundant.

1.1 International Aliens Law The process of governance is normally premised on a closed system of obligation. Rules are established to support the polity’s functional interdependence, without expectation that outsiders will conduct themselves by those standards. There is therefore a potential conflict when foreigners seek entry into 1

Convention relating to the Status of Refugees, 189 UNTS 2545 (UNTS 2545), done July 28, 1951, entered into force Apr. 22, 1954 (Refugee Convention).

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a territory governed by rules of conduct different from those that prevail in their home country. While it is generally conceded that the territorial sovereign may formally insist on compliance with prevailing standards as a condition of entry, there are often practical considerations which argue against such inflexibility.2 Governments have long understood that it is sensible to attenuate otherwise valid laws to encourage the entry of desirable outsiders. For example, the ancient Greeks accepted that their rules denying legal capacity to foreigners posed a barrier to the attraction of foreign craftsmen able to enrich the quality of their communal life. Their answer was the establishment of a separate legal regime to govern the conduct of skilled foreigners, the standards of which were sufficiently attractive to facilitate the desired level of settlement.3 Similar practices evolved as part of the medieval law merchant. By the thirteenth century, it had become common for associations of traveling merchants to negotiate various forms of immunity and privilege with European rulers anxious to promote economic growth through foreign trade. These merchants were ultimately allowed to govern themselves, autonomously administering their own laws within the territory of foreign sovereigns.4 The emergence of nation-states in the sixteenth century provided the context within which to formalize this ad hoc pattern of special rights granted to traders by various European rulers. Governments undertook the bilateral negotiation of treaties in which safe passage and basic civil rights were mutually guaranteed to merchants and others wishing to do business or to travel in the partner state. By the late nineteenth century, a network of “friendship, commerce, and navigation” treaties consistently guaranteed certain critical aspects of human dignity to aliens admitted to most trading states.5 Because these agreements were pervasively implemented in the domestic laws of state parties, certain human rights universally guaranteed to aliens were identified as general principles of law.6 These included recognition of the alien’s juridical personality, respect for life and physical integrity, and personal and spiritual liberty within socially bearable limits. Aliens were afforded no political rights, though resident aliens were subject to reasonable public duties. In the economic sphere, there was a duty of non-discrimination among categories of 2

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4 5

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See generally R. Lillich, The Human Rights of Aliens in Contemporary International Law (1984) (Lillich, Rights of Aliens), at 5–40. C. Phillipson, The International Law and Custom of Ancient Greece and Rome (1911), at 122–209. Lillich, Rights of Aliens, at 6–7. H. Walker, “Modern Treaties of Friendship, Commerce and Navigation,” (1958) 42 Minnesota Law Review 805 (Walker, “Treaties of Friendship”), at 823. C. Amerasinghe, State Responsibility for Injuries to Aliens (1967) (Amerasinghe, State Responsibility), at 23; A. Roth, The Minimum Standard of International Law Applied to Aliens (1949) (Roth, Minimum Standard), at 113.

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aliens where they were allowed to engage in commercial activity. There was also an obligation to provide adequate compensation for denial of property rights where aliens were allowed to acquire private property. Finally, aliens were to be granted access to a fair and non-discriminatory judicial system to enforce these basic rights.7 The protection of aliens was not, however, restricted to the few rights which attained the status of general principles of law. States heavily engaged in foreign commerce and investment were understandably anxious to garner additional protections for their nationals working abroad. They pursued this objective by continuing to negotiate bilateral treaties to supplement entitlements under the general aliens’ rights regime. These particularized agreements allowed consenting governments mutually to accord a variety of rights to each other’s citizens, to a degree befitting the importance attached to the bilateral relationship. An important innovation to emerge from this process of bilateral negotiation was the definition of many aliens’ rights by reference to contingent standards of protection.8 The definition of rights in absolute terms, traditionally used at the national level, did not translate well to the framing of bilateral accords on alien protection. First, states were concerned to avoid the possibility that aliens might at some point claim rights not guaranteed even to citizens. Contingent rights – defined in a way that varied with what was on offer to others – gave states the confidence to protect aliens without fear of privileging them as granting them rights defined in absolute terms might do. Second, the meaning attributed to a particular entitlement (for example, freedom of internal movement) had always to be interpreted through the often divergent cultural and juridical lenses of each state party. The national state might, for example, assume that this right allowed the legally admitted alien to choose his or her place of residence in the receiving state, while the latter state intended it to mean only freedom to travel without restrictions. The definition of broad rights in absolute terms might therefore result not in strengthened protection, but instead in a lack of clarity. Third, unambiguous, absolute standards could work to the long-term disadvantage of aliens residing in states in which rights were in evolution. Host states were not disposed continuously to renegotiate bilateral protection agreements, and were especially unlikely to entertain requests for amendment from foreign governments of modest influence. The citizens of less important states might therefore find themselves denied the benefits of protections subsequently extended to the nationals of more-favored countries. Even for the 7

8

This carefully constructed list of rights universally held by aliens was based on an empirical survey spanning 150 years: Roth, Minimum Standard, at 134–185. See generally Walker, “Treaties of Friendship,” at 810–812.

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citizens of more influential countries, the definition of aliens’ rights in absolute terms could be counter-productive: a static definition of rights would mean that new protections afforded citizens of the host country would not accrue automatically to even most-favored aliens. To respond to these concerns, bilateral negotiations tended to couple absolute protection of a limited core of clearly understood rights with a broader range of entitlements loosely defined in contingent terms. The standard of protection for contingent rights was thus not discernible simply by reference to the literal scope of the treaty. It was set instead as a function of the relevant treatment accorded another group likely to secure maximum protection under the receiving state’s laws, usually either the nationals of “most-favored” states, or the citizens of the state of residence itself. The precise content of the duty was therefore not fixed, but evolved in tandem with an exterior state of law and fact presumed to be a reliable benchmark of the best treatment that could be secured from the receiving state. Walker aptly characterizes this system of contingent rights as providing for “built-in equalization and adjustment mechanisms.”9 The definition of aliens’ rights by a combination of general principles of law and bilateral agreements of varying scope and rigor resulted in different classes of foreigners enjoying protection of sometimes different rights, and to differing degrees. All aliens, however, were in theory entitled to at least the benefit of the limited set of rights established by the general principles of aliens law. At first glance, international aliens law might therefore appear to be an important source of rights for refugees. After all, refugees are by definition persons who are outside the bounds of their own state.10 The general principles that emerged from the network of interstate arrangements on the protection of aliens do not, however, endow aliens themselves with rights and remedies.11 International aliens law was conceived very much within the traditional contours of international law: the rights created are the rights of national states, enforced at their discretion under the rules of diplomatic protection and international arbitration.12 While injured aliens may 9 10

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Walker, “Treaties of Friendship,” at 812. “[T]he term ‘refugee’ shall apply to any person who . . . 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”: Refugee Convention, at Art. 1(A)(2). See generally A. GrahlMadsen, The Status of Refugees in International Law (vol. I, 1966) (Grahl-Madsen, Status of Refugees I), at 150–154; G. Goodwin-Gill and J. McAdam, The Refugee in International Law (2007) (Goodwin-Gill and McAdam, Refugee in International Law), at 63; and J. Hathaway and M. Foster, The Law of Refugee Status (2014) (Hathaway and Foster, Refugee Status), at 17–75. “The fate of the individual is worse than secondary in this scheme: it is doctrinally nonexistent, because the individual, in the eyes of traditional international law, like the alien of the Greek city-State regime, is a non-person”: Lillich, Rights of Aliens, at 12. Diplomatic protection is rooted in “a statement by the Swiss jurist Emmerich de Vattel in 1758 that ‘whoever ill-treats a citizen indirectly injures the State, which must protect that

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benefit indirectly from the assertion of claims by their national state, they can neither require action to be taken to vindicate their loss, nor even compel their state to share with them whatever damages are recovered in the event of a successful claim.13 The theory underlying international aliens law is not the need to restore the alien to a pre-injury position. As summarized by Brierly, the system reflects “the plain truth that the injurious results of a denial of justice are not, or at any rate are not necessarily, confined to the individual sufferer or his family, but include such consequences as the mistrust and lack of safety felt by other foreigners similarly situated.”14 Aliens law is essentially an attempt to reconcile the conflicting claims of governments that arise when persons formally under the protection of one state are physically present in the sovereign territory of another – not a means of securing individuated redress for the injured alien. In any event, refugees have traditionally been unable to derive even indirect protection from the general principles of aliens law because they lacked the relationship with a state of nationality legally empowered to advance a claim to protection.15

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citizen,’ and, secondly, in a dictum of the Permanent Court of International Justice in 1924 in the Mavrommatis Palestine Concessions case that ‘by taking up the case of one of its subjects and by resorting to diplomatic action or international judicial proceedings on his behalf, a State is in reality asserting its own right, the right to ensure, in the person of its subjects, respect for the rules of international law’”: International Law Commission, “Draft Articles on Diplomatic Protection with Commentaries,” [2006] 2 UN Yearbook of International Law 27. As the International Court of Justice has observed, “[t]he State must be viewed as the sole judge to decide whether its protection will be granted, to what extent it is granted, and when it will cease”: Barcelona Traction, Light and Power Company Limited (Belgium v. Spain), [1970] ICJ Rep 3 at [79]. “It had been suggested that the traditional approach to diplomatic protection . . . should be developed to recognise that in certain circumstances where injury is the result of a grave breach of a jus cogens norm, the state whose national has been injured, should have a legal duty to exercise diplomatic protection on behalf of the injured person. As a corollary to that, states would be obliged to make provision in their municipal law for the enforcement of this right before a competent court or other independent national authority. It appears from the [International Law Commission] report [of 2000, UN Doc. A/CN.4/506] that although there was some support for this development, and some recent national constitutions made provision for such an obligation, presently this is not the general practice of states. Currently the prevailing view is that diplomatic protection is not recognised by international law as a human right and cannot be enforced as such”: Kaunda v. President of the Republic of South Africa, (2005) 4 SA 235 (SA CC, Aug. 4, 2004), at [28]–[29]. Cited in Amerasinghe, State Responsibility, at 59. As Amerasinghe demonstrates, however, many of the rules governing the procedures for assertion of a claim and calculation of damages are intimately related to the position of the injured alien: ibid. at 61–65. “It is through the medium of their nationality only that individuals can enjoy benefits from the existence of the Law of Nations . . . Such individuals as do not possess any nationality enjoy no protection whatever, and if they are aggrieved by a State they have no way to redress, there being no State that would be competent to take their case in hand. As far as the Law of Nations is concerned, apart from morality, there is no restriction whatever to cause a State to abstain from maltreating to any extent such stateless individuals”:

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in t e r n a t i o n a l a l i e n s l a w

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The emergence of general principles of aliens law nonetheless signaled a critical conceptual breakthrough in international law, which laid the groundwork for the subsequent development of the refugee rights regime. First, aliens law recognizes the special vulnerabilities which attend persons outside the bounds of their national state. Aliens have no right to participate in, or to influence, a foreign state’s lawmaking process, yet are subjected to its rigors. As such, the domestic laws of the foreign state might, in the absence of international law, make no or inadequate provision for the alien to access meaningful protection against harm: [T]he individual, when he leaves his home State, abandons certain rights and privileges, which he possessed according to the municipal law of his State and which, to a certain limited extent, especially in a modern democracy, gave him control over the organization of the State . . . In a foreign State, he is at the mercy of the State and its institutions, at the mercy of the inhabitants of the territory, who in the last resort accord him those rights and privileges which they deem desirable. This is a situation which hardly corresponds to modern standards of justice.16

Aliens law effects a minimalist accommodation of the most basic concerns of foreigners in the interest of continued international intercourse. It is a formal acknowledgment that commercial linkages and other aspects of national selfinterest require legal systems to adapt to the reasonable expectations of nonnationals. Second, the development of aliens law brought the vindication of particularized harms within the realm of international legal relations. A state which fails to live up to the minimum standards of protection owed to aliens can be forced to answer for its failures through the formal mechanisms of diplomatic protection and international arbitration. International law was transformed from a system focused solely on resolving the conflicting corporate interests of states, to a regime in which the particularized harms experienced by at least

16

L. Oppenheim, International Law: A Treatise (1912), at 369. The International Law Commission has more recently championed the view that the state in which a refugee lawfully and habitually resides may choose to extend diplomatic protection to that refugee, though not for purposes of advancing a claim against the refugee’s country of nationality: International Law Commission, “Draft Articles on Diplomatic Protection with Commentaries,” [2006] 2 UN Yearbook of International Law 25, at Art. 8(2)–(3). This principle remains, however, de lege ferenda: R (Al Rawi) v. Secretary of State for the Home Department, [2006] EWCA Civ 1279 (Eng. CA, Oct. 12, 2006), at [63]. Interestingly, even the Commission declined to press for a right to exercise diplomatic protection against a refugee’s country of nationality in view of the predominance of nationality as the basis for the exercise of diplomatic protection, as well as on the policy grounds of “open[ing] the floodgates for international litigation” and not “deter[ring] States from accepting refugees”: International Law Commission, “Draft Articles on Diplomatic Protection with Commentaries,” [2006] 2 UN Yearbook of International Law 37, at Art. 8(10). Roth, Minimum Standard, at 113.

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some individual human beings are subsumed within the definition of the national interest. Third, given that international legal accountability would mean nothing without effective action, aliens law embraced surrogacy as the conceptual bridge between particularized harms and international enforceability. Because individuals are in most cases not recognized actors in international legal relations, all wrongs against a citizen are notionally transformed into harms done to the national state, which is deemed to enjoy a surrogate right to pursue accountability in its sole discretion.17 This is not a trustee relationship, as national states are required neither to take the needs of the injured individual into account, nor to make restitution of any proceeds derived from enforcement. As unfair as it undoubtedly is that the persons who actually experience a loss abroad have so little control over process or recovery of damages, the surrogacy relationship implemented by international aliens law nonetheless served the objective of forcing foreign states to take respect for the human dignity of aliens more seriously. As observed by Amerasinghe, International society as a whole is, perhaps, content to keep the law in a fairly undeveloped state. Thus, it has become more an instrument for keeping in check the powers of States vis à vis aliens, emanating from extreme theories of State sovereignty, than a reflection of the proper aspirations of an international society seeking to reconcile the conflicting interests of State and alien with a view to ensuring ideal justice for the individual.18

Fourth, and most specifically, the parallel system of bilateral agreements on the protection of aliens showed how rights could be defined across cultures, and in a way that maintained their currency in changing circumstances. Only a few clearly understood and established rights were normally phrased as absolute undertakings. For the most part, the standard of protection was set in contingent terms, effectively assimilating the aliens of the state parties either to “most-favored” foreigners or even to citizens of the territorial state. The objective of protection came therefore to be understood in terms of nondiscrimination, extending to whatever core interests were viewed by the negotiating states as necessary to sustain the desired level of interstate relations.

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18

“Nationality is a juridical and political link that unites an individual with a State and it is that link which enables a State to afford protection against all other States”: L. Sohn and T. Buergenthal, The Movement of Persons Across Borders (1992) (Sohn and Buergenthal, Movement of Persons), at 39. Amerasinghe, State Responsibility, at 285.

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international pro tection of minorities

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1.2 International Protection of Minorities A second body of law which influenced the structure of the international refugee rights regime was the League of Nations system for the protection of national minorities. Like aliens law, the Minorities Treaties which emerged after the First World War were intended to advance the interests of states. Their specific goal was to require vanquished states to respect the human dignity of resident ethnic and religious minorities, in the hope of limiting the potential for future international conflict: We are trying to make a peaceful settlement, that is to say, to eliminate those elements of disturbance, so far as possible, which may interfere with the peace of the world . . . The chief burden of the war fell upon the greater Powers, and if it had not been for their action, their military action, we would not be here to settle these questions. And, therefore, we must not close our eyes to the fact that, in the last analysis, the military and naval strength of the Great Powers will be the final guarantee of the peace of the world . . . Nothing, I venture to say, is more likely to disturb the peace of the world than the treatment which might in certain circumstances be meted out to minorities. And, therefore, if the Great Powers are to guarantee the peace of the world in any sense, is it unjust that they should be satisfied that the proper and necessary guarantee has been given?19

The Minorities Treaties marked a major advance over the conceptual framework of international aliens law. Whereas the concern under aliens law had been simply to set standards for the treatment abroad of a state’s own nationals, the Minorities Treaties provided for external scrutiny of the relationship between foreign citizens and their own government. Minorities were guaranteed an extensive array of basic civil and political entitlements, access to public employment, the right to distinct social, cultural, and educational institutions, language rights, and an equitable share of public funding. The duty to respect these rights was imposed on the governments of defeated states as a condition precedent to the restoration of sovereign authority over their territories. While no formal international standing was granted to minority citizens themselves, enforcement of interstate obligations relied heavily on information garnered from petitions and other information provided by concerned individuals and associations. The welfare of particular human beings was thereby formally recognized as a legitimate matter of international attention. Beyond their conceptual importance as limitations on state sovereignty over citizens, the Minorities Treaties also broke new ground in procedural terms. After the 1878 Treaty of Berlin, complaints had been made that victorious 19

Speech by United States President Wilson to the Peace Conference, May 31, 1919, cited in L. Sohn and T. Buergenthal, International Protection of Human Rights (1973), at 216–217.

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states took advantage of their right to supervise the protection of minorities to intervene oppressively in the vanquished states’ internal affairs. Rather than overseeing the conduct of the defeated states directly, the Great Powers which emerged from the First World War therefore opted to establish the first international system of collectivized responsibility for the enforcement of human rights. The Great Powers requested the Council of the justestablished League of Nations to serve as guarantor of the human rights obligations set by the Minorities Treaties. Once ratified, the treaties were submitted to the Council, which then resolved formally to take action in response to any risk of violation of the stipulated duties.20 The League of Nations went on to establish an elaborate petition system to ensure that Council members had the benefit of the views of both minorities and respondent governments before taking action in a particular case. This system was in no sense a universal mechanism to protect human rights. It was applicable only to states forced to accept minority rights provisions as part of the terms of peace, and to a smaller number of states that made general declarations to respect minority rights as a condition of admission to the League of Nations. Nor did the Minorities Treaties system challenge the hegemony of states as the only parties able to make and enforce international law. Petitions from minorities were a source of critical information to the League’s Council, but did not enfranchise individuals or collectivities as participants in the enforcement process. The minorities system nonetheless contributed in important ways to the evolution of both international human rights law and the refugee rights regime. The Minorities Treaties firmly established the propriety of international legal attention to the human rights of at-risk persons inside sovereign states. Whereas aliens law considered harms against individuals merely as evidence in the adjudication of competing claims by states, the system of minorities protection reversed the equation. The focus of concern became the well-being of the minorities themselves, albeit a concern driven by the desire to avoid consequential harm to the peace and security of the international community. Equally important, the Minorities Treaties provided the context for collectivization of international responsibility for supervision of human rights. They showed the viability of an enforcement process vested in the community of states, yet open to the voices of particular individuals and collectivities. In contrast to aliens law, the minorities system did not condition enforcement on the initiative of a particular state, but established a direct role for the 20

The Permanent Court of International Justice could be asked to render advisory opinions on contentious legal issues. See e.g. Greco-Bulgarian Communities, [1930] PCIJ Rep, Ser. B, No. 17; Access to German Minority Schools in Upper Silesia, [1931] PCIJ Rep, Ser. A/B, No. 40; Minority Schools in Albania, [1935] PCIJ Rep, Ser. A/B, No. 64.

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l eague of nations codi fications of refugee rights

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international community itself in the assertion of human rights claims. This evolution was very important to refugees and stateless persons, who are by definition not in a position to look to their national state to protect their interests.

1.3 League of Nations Codifications of Refugee Rights Aliens law was the first legal system to deny the absolute right of states to treat persons within their jurisdiction in whatever manner they deemed appropriate. It recognized the special vulnerabilities of persons outside their national state, and established a combination of absolute and contingent duties owed to aliens. It was enforceable by a system of interstate accountability, operationalized at the bilateral level. The League of Nations system for protection of national minorities built on these achievements, but strengthened enforceability by replacing pure bilateral accountability with the first system of collectivized surrogacy. The concern of the international community was transformed from simply the facilitation of national protective efforts to direct engagement as the source of residual protection for those whose interests were not adequately safeguarded by national governments. States were directly accountable to the international community for actions in disregard of human rights within their own borders. The legal framework for an international refugee rights regime draws on the progressive refinements achieved under these two systems. The early efforts of the international community to protect refugees stemmed from a series of exoduses in the years following the end of the First World War: some 2 million Russians, Armenians, and others were forced to flee their countries between 1917 and 1926. The flight of these refugees unfortunately coincided with the emergence of modern systems of social organization throughout most of Europe. Governments began to regulate large parts of economic and social life, and to safeguard critical entitlements for the benefit of their own citizens. This commitment to enhanced investment in the well-being of their own citizenry led states to reassert the importance of definite boundaries between insiders and outsiders, seen most clearly in the reinforcement of passport and visa controls at their frontiers. Equally important, access to such important social goods as the right to work and public housing was often limited to persons able to prove citizenship. The impact of this shift in European social organization was mitigated by the network of bilateral treaties of friendship, commerce, and navigation established under the rubric of international aliens law.21 These agreements guaranteed the nationals of contracting states access while abroad to most of the benefits normally reserved for citizens. The essential precondition was 21

Bilateral aliens treaties are discussed at note 5.

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reciprocity: the citizens of one state could expect benefits in the cooperating state only if their own government in turn ensured the rights of citizens of that partner state. If reciprocity was not respected, or if there was no bilateral arrangement between an individual’s home state and the foreign country into which entry was sought, access to the territory, or at least to important social benefits, would likely be denied. This reciprocity requirement was disastrous for early groups of refugees. Most had no valid identity or travel documents to prove their nationality in a cooperating state. Worse still, the 1.5 million Russian refugees who fled the Bolshevik Revolution were formally denationalized by the new Soviet government, and therefore clearly ineligible to benefit from any bilateral arrangement. Without documentation to establish their eligibility for entry and residence, refugees were either turned away or, if able to avoid border controls, barred from work and other regulated sectors. Lacking valid travel documents, they were not able to move onward from first asylum states in search of better living conditions. The result was many truly desperate people, often destitute and ill, unable either to return to their home state or to live decent lives abroad. The first generation of refugee accords was an attempt to respond to the legally anomalous situation of refugees.22 As observed by the League of Nations Advisory Commission for Refugees, “the characteristic and essential feature of the problem was that persons classed as ‘refugees’ have no regular nationality and are therefore deprived of the normal protection accorded to the regular citizens of a State.”23 Like all aliens, refugees were essentially at the mercy of the institutions of a foreign state. In contrast to other foreigners, however, refugees clearly could not seek the traditional remedy of diplomatic protection from their country of nationality: The refugee is an alien in any and every country to which he may go. He does not have the last resort which is always open to the “normal alien” – return to his own country. The man who is everywhere an alien has to live in unusually difficult material and psychological conditions. In most cases he has lost his possessions, he is penniless and cannot fall back on the various forms of assistance which a State provides for its nationals. Moreover, the refugee is not only an alien wherever he goes, he is also an “unprotected alien” in the sense that he does not enjoy the protection of his country of origin. Lacking the protection of the Government of his country of origin, the refugee does not enjoy a clearly defined status based upon the principle of reciprocity, as enjoyed by those nationals of those states which maintain normal diplomatic relations. The rights which are 22

23

See generally J. Hathaway, “The Evolution of Refugee Status in International Law: 1920–1950,” (1984) 33 International and Comparative Law Quarterly 348 (Hathaway, “Evolution of Refugee Status”), at 350–361. “Report by the Secretary-General on the Future Organisation of Refugee Work,” LN Doc. 1930.XIII.2 (1930), at 3.

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conferred on such nationals by virtue of their status, which is dependent upon their nationality, are generally unavailable to him. A refugee is an anomaly in international law, and it is often impossible to deal with him in accordance with the legal provisions designed to apply to aliens who receive assistance from their national authorities.24

Confronted by largely unstoppable flows of desperate people who did not fit the assumptions of the international legal system, states agreed that it was in their mutual self-interest to enfranchise refugees within the ranks of protected aliens. To have decided otherwise would have exposed them to the continuing social chaos of unauthorized and desperate foreigners in their midst. Equally important, it was understood that the credibility of border controls and of the restriction of socioeconomic benefits to nationals was at stake: by legitimating and defining a needs-based exception to the norm of communal closure, refugee law sustained the protectionist norm. So long as the admission of refugees was understood to be formally sanctioned by states, their arrival would cease to be legally destabilizing. The mechanisms adopted to address the plight of refugees followed from experience under predecessor systems. As under aliens law, the fundamental goal was to adapt to the reasonable expectations of non-nationals in the interest of the continued well-being of the international system. This objective was implemented through the collectivized surrogacy model developed by the Minorities Treaties regime: refugees did not become the holders of particular rights, but were entitled to benefit from actions taken for them by a succession of League of Nations high commissioners. In particular, the League of Nations was empowered by various treaties and arrangements to respond to the legal incapacity of refugees by providing them with substitute documentation, which states agreed to treat as the functional equivalent of national passports. A system of surrogate consular protection emerged as well. Representatives of the High Commissioner were authorized by states to perform tasks normally reserved to states of nationality, such as establishing identity and civil status, and certifying educational and professional qualifications. These first refugee agreements did not set specific responsibilities for states, other than cooperation in the recognition of League of Nations documentation. There was generally no need for greater precision, as most European states continued to afford relatively generous benefits to the nationals of “most-favored states” to whom refugees were effectively assimilated. The presence of refugees was moreover perceived by states to be a transitory phenomenon, which would resolve itself either through consensual naturalization in the state of residence or by return of the refugee to the state of origin 24

“Communication from the International Refugee Organization to the Economic and Social Council,” UN Doc. E/1392, July 11, 1949, at App. I.

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when conditions normalized.25 There was accordingly no need to do more than bring refugees within the ranks of admissible foreigners. The 1928 Arrangement relating to the Legal Status of Russian and Armenian Refugees,26 however, departed from this pattern. Increasing political and economic instability, coupled with the persistence of the “temporary” refugee phenomenon, had led some states to refuse to assimilate refugees to most-favored foreigners. As generosity subsided, the League of Nations elected to standardize the range of rights that should be extended to refugees. While framed as a series of non-binding recommendations to states, the 1928 Arrangement set standards for the recognition of personal status, and emphasized the inappropriateness of conditioning refugee rights on respect for reciprocity by their home state. The Arrangement also addressed a number of more detailed concerns, such as access to the courts, the right to work, protection against expulsion, equality in taxation, and the nature of national responsibilities to honor League of Nations identity certificates. Reliance on moral suasion alone to induce uniform respect for the human dignity of refugees did not, however, prove satisfactory: The results so far secured, however, leave something to be desired as regards both the legal status and conditions of life of refugees. The replies received [from states] to the enquiry into the application of the Arrangement . . . show that there is still much to be done before the position of refugees in all countries is such as no longer to call for strong and continued international action. The striking feature of the replies and of the established known facts is the comparative inefficacity of the recommendations.27

The Great Depression had understandably fortified the resolve of states to preserve scarce entitlements for their own citizens. Unlike other foreigners who responded by leaving, however, refugees could not return home. The dilemma was sufficiently serious that in 1933 the League of Nations Intergovernmental Commission, charged with oversight of refugee protection, observed that “[t]he desirability of a convention aiming at securing a more stable legal status for refugees [was] unanimously recognized,”28 and that “the 25

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28

“A final solution of the refugees problem can accordingly only be furnished by naturalisation in the countries in which the refugees reside, or by restoring their original nationality to them. As neither of these alternatives is possible at the moment, it has been necessary to institute a provisional system of protection which is embodied in the Inter-Governmental Arrangements of 1922, 1924, 1926 and 1928 [emphasis added]”: “Report by the SecretaryGeneral on the Future Organisation of Refugee Work,” LN Doc. 1930.XIII.2 (1930), at 3. Arrangement relating to the Legal Status of Russian and Armenian Refugees, 89 LNTS 53, done June 30, 1928. “Report by the Inter-Governmental Advisory Commission for Refugees on the Work of its Fourth Session,” 12(2) LN OJ 2118 (1931), at 2119. “Report of the Intergovernmental Commission and Communication from the Governing Body of the Nansen International Office,” LN Doc. C.311.1933 (1933), at 1.

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stabilization of the legal status of refugees can only, owing to the very nature of the steps to be taken, be brought about by a formal agreement concluded by a certain number of States concerned.”29 The resultant 1933 Convention relating to the International Status of Refugees30 is one of the earliest examples of states agreeing to codify human rights as matters of binding international law.31 Equally important, it opened the door to a new way of thinking about the human rights of aliens. Aliens’ rights had previously been conceived to respond to a fixed set of circumstances, namely those typically encountered by traders and other persons traveling or residing abroad in pursuit of commercial opportunities.32 Many risks faced by refugees in foreign states were, however, different from those which typically confronted business travelers. The Refugee Convention of 1933 met this challenge by setting a rights regime for a subset of the alien population, tailored to its specific vulnerabilities. Many rights set by the 1933 Convention simply formalized and amplified the recommendations set out in the 1928 Arrangement. An important addition was the explicit obligation of states not to expel authorized refugees, and to avoid refoulement, defined to include “non-admittance at the frontier.”33 Three key socioeconomic rights were also added to the 1928 list. First, the Convention granted refugees some relief from the stringency of foreign labor restrictions, and proscribed limitations of any kind after three years’ residence, where the refugee was married to or the parent of a national, or was an ex-combatant of the First World War. Second, refugees were granted access to the host state’s welfare and relief system, including medical care and workers’ compensation. Third, access to education was to be facilitated, including by the remission of fees. This enumeration was later said to have “confer[red] upon refugees the maximum legal advantages which it had been possible to afford them in practice.”34 The 1933 Convention drew on the precedent of aliens law to establish a mixed absolute and contingent rights structure. Some rights, including 29

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32 33

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“Work of the Inter-Governmental Advisory Commission for Refugees during its Fifth Session and Communication from the International Nansen Office for Refugees,” 5(1) LN OJ 854 (1933), at 855. 159 LNTS 3663, done Oct. 28, 1933, entered into force June 13, 1935 (1933 Refugee Convention). The 1933 Refugee Convention established the second voluntary system of international supervision of human rights (preceded only by the 1926 Slavery Convention, 60 LNTS 253, done Sept. 25, 1926, entered into force Mar. 9, 1927). See Chapter 1.1 at note 5. “Each of the Contracting Parties undertakes not to remove or keep from its territory by application of police measures, such as expulsions or non-admittance at the frontier (refoulement), refugees who have been authorised to reside there regularly, unless the said measures are dictated by reasons of national security or public order”: 1933 Refugee Convention, at Art. 3. “Work of the Inter-Governmental Advisory Commission for Refugees during its Eighth Session,” LN Doc. C.17.1936.XII (1936), at 156.

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recognition of legal status and access to the courts, were guaranteed absolutely. More commonly, one of three contingent rights formulations was used. Refugees were to have access to work, social welfare, and most other rights on the same terms as the nationals of most-favored nations. Exceptionally, as with liability to taxation, refugees were assimilated to citizens of the host state. Education rights, conversely, were mandated only to the extent provided to foreigners generally. This pattern of variant levels of obligation toward refugees continues to the present day.35 It is noteworthy, however, that the 1933 Convention guaranteed almost all refugee rights either absolutely or on terms of equivalency with the citizens of most-favored states. In practice, however, the 1933 Convention did not significantly expand refugee rights. Only eight states ratified the treaty, several with major reservations. The assimilation of refugees to most-favored foreigners in any event proved an inadequate guarantee of reasonable treatment, as the intensification of the unemployment crisis led states to deny critical social benefits, including the right to work, even to established foreigners: Some countries have found it necessary to introduce restrictions on the employment of foreign workers and, as a result, refugees who had been employed for years have been deprived of their livelihood, while in other countries, as a result of these restrictions, refugees have become vagrants, and this has been considered a sufficient reason for their expulsion. Unlike other foreigners in a similar position, these refugees could not be repatriated. Their lot has become a tragic one, since they have been obliged to enter first one country and then another illegally; many of them are thus compelled to live as outlaws.36

The strategy of assimilating refugees to aliens, while valuable in the earlier, more cosmopolitan era, now condemned refugees to real hardships. Yet return home had not been possible for most refugees, and few European states had agreed to grant naturalization.37 One answer to this dilemma would have been to extend national treatment to refugees. The League of Nations, however, was engaged in a rearguard action intended simply to preserve the “most-favored alien” guarantees secured under the 1933 Convention. Some states were unwilling to grant refugees rights even 35 36

37

See Chapters 3.2 and 3.3. “Report Submitted by the Sixth Committee to the Assembly of the League of Nations: Russian, Armenian, Assyrian, Assyro-Chaldean, Saar and Turkish Refugees,” LN Doc. A.45.1935.XII (1935). “Unfortunately, for various reasons, [naturalisation] encountered considerable difficulties even before countries became reluctant, owing to their unemployment problems, to increase the number of workers . . . [A] surprisingly small percentage of refugees had succeeded in obtaining naturalisation, and those modest results, combined with existing political and economic conditions, do not suggest that too much hope should be pinned to naturalisation as a general and early remedy for the refugee problem in Europe”: ibid. at 2.

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l eague of n ations codific ations of refugee rights

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at this modest level of obligation. Others declined to sign the accord for fear that the intensifying economic crisis might force them to renounce the Convention peremptorily, in breach of its one-year notice requirement. Rather than expanding rights, therefore, the international agenda was very much focused on easing the requirements of the 1933 Convention or even drafting a new, more flexible, accord to induce states to bind themselves to some standard of treatment, even if a less exigent one.38 This was hardly the moment to make progress on a more inclusive rights regime for refugees. The extent of the retreat from meaningful protection of refugees can be seen in the 1936 Provisional Arrangement concerning the Status of Refugees coming from Germany.39 While continuing the approach of stipulating legally binding duties of states, no attempt was made to guarantee refugees more than identity certificates, protection from expulsion, recognition of personal status, and access to the courts. Even then, only seven states adhered. As it worked to establish a more definitive regime for refugees from the German Reich, the League of Nations was therefore drawn to two critical points of consensus. First, given the insecurity about economic and political circumstances, governments were likely to sign only if able quickly to renounce obligations. Second, and more profoundly, it was understood that truly adequate protection would be provided only if refugee rights were effectively assimilated to those of nationals, a proposition flatly rejected by most European states. Unlike the countries of Europe, however, most overseas countries of resettlement were “inclined to offer greater facilities for the naturalization of refugees.”40 The League of Nations therefore decided that “[a] suitable distribution of refugees among the different countries might help to solve the problem.”41 The resulting 1938 Convention concerning the Status of Refugees coming from Germany42 reflected this shift. While most of the rights mirrored the comprehensive list established by the 1933 Convention, two new provisions of note were included. Art. 25 reversed the position of the predecessor 1933 Convention, allowing states to accede to the regime without committing themselves to give any notice before renouncing it. While it was hoped that this new flexibility would encourage states to adhere for as long as circumstances allowed, in fact only three states – Belgium, France, and the United Kingdom – ultimately agreed to be bound by it (none of which availed itself of 38

39 40

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42

“Work of the Inter-Governmental Advisory Commission for Refugees during its Eighth Session,” LN Doc. C.17.1936.XII (1936), at 156–157. 3952 LNTS 77, done July 4, 1936. “Report Submitted by the Sixth Committee to the Assembly: Russian, Armenian, Assyrian, Assyro-Chaldean, Saar and Turkish Refugees,” LN Doc. A.45.1935.XII (1935), at 2. “Work of the Inter-Governmental Advisory Commission for Refugees during its Eighth Session,” LN Doc. C.17.1936.XII (1936), at 159. 192 LNTS 4461, done Feb. 10, 1938 (1938 Refugee Convention).

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the early renunciation option). The more prophetic novation of the 1938 Convention stipulated that “[w]ith a view of facilitating the emigration of refugees to overseas countries, every facility shall be granted to the refugees and to the organizations which deal with them for the establishment of schools for professional re-adaptation and technical training.”43 In light of the unwillingness of European states to grant meaningful rights to refugees, there was indeed no option other than to pursue the resettlement of refugees in states outside the region. This adoption of what Coles has styled an “exilic bias” in refugee law44 led to a de-emphasis on the elaboration of standards to govern refugee rights. Between 1938 and the adoption of the present Refugee Convention in 1951, the consistent emphasis of a succession of treaties and intergovernmental arrangements was to resettle overseas any refugee who was unlikely to integrate or repatriate within a reasonable time. As the countries to which refugees were relocated agreed to assimilate them to citizens, the traditional need to address the legal incapacity of refugees through the guarantee of a catalog of rights was considered no longer to exist. The early refugee agreements, in particular the 1933 Convention, nonetheless provided the model for two conceptual transitions at the heart of the modern refugee rights regime. First, they introduced the idea of freely accepted international supervision of national compliance with human rights. This quiet revolution in thinking transformed collective supervision of human rights from a penalty to be paid by subordinate states, as under the League of Nations Minorities Treaties system, to a means of advancing the shared objectives of states through cooperation. Of equal importance, the 1928 and subsequent accords reshaped the substance of the human rights guaranteed to refugees. Rather than simply enfranchising refugees within the traditional aliens law regime, states tailored and expanded those general principles to meet the real needs of refugees. The consequential decisions to waive reciprocity, and to guarantee basic civil and economic rights in law, served as a direct precedent for a variety of international human rights projects, including the modern refugee rights regime.

1.4 The Convention relating to the Status of Refugees In the years immediately following the Second World War, the international community pursued the repatriation of European refugees when possible, failing which an effort was made to arrange for their overseas resettlement. There was a fortuitous coalescence of interests, as the postwar economic boom in states of 43 44

1938 Refugee Convention, at Art. 15. G. Coles, “Approaching the Refugee Problem Today,” in G. Loescher and L. Monahan eds., Refugees and International Relations 373 (1990).

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the New World had opened doors to new sources of labor. The scale of the resettlement project was massive: between 1947 and 1951, the International Refugee Organization (IRO) relocated more than 1 million Europeans to the Americas, Israel, Southern Africa, and Oceania. The IRO had its own specialized staff, a fleet of more than forty ships, and, most important, enjoyed the political and economic support of the developed world.45 As the June 1950 date for termination of the mandate of the IRO neared, it was clear that not all Second World War refugees could be either repatriated or resettled. A strategy was moreover needed to address impending refugee flows from the Communist states of the Eastern Bloc. In this context, the United Nations proposed the protection of all stateless persons, including refugees, under a new international regime.46 While political antagonism undermined realization of this holistic vision,47 a process was initiated which led ultimately both to the establishment of the United Nations High Commissioner for Refugees (UNHCR), and to the preparation of the 1951 Refugee Convention. This Convention, which remains the cornerstone of modern international refugee law, resurrected the earlier commitment to codification of legally binding refugee rights. In part, the desire of states to reach international agreement on the human rights of refugees was simply a return to pre-Depression traditions.48 States had always understood that it was in their self-interest to ensure that the arrival and presence of refugees did not become a socially destabilizing force.49 While desperate circumstances leading up to and following the Second World War had led to massive intergovernmental efforts to resettle refugees overseas, the restoration of relative normalcy now prompted states to demand greater individuated control over the process of refugee protection.50 It was argued 45

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See generally L. Holborn, The International Refugee Organization: A Specialized Agency of the United Nations (1956); Independent Commission on International Humanitarian Issues, Refugees: The Dynamics of Displacement (1986), at 32–38. United Nations Department of Social Affairs, “A Study of Statelessness,” UN Doc. E/1112, Feb. 1, 1949 (United Nations, “Statelessness”). See J. Hathaway, “A Reconsideration of the Underlying Premise of Refugee Law,” (1990) 31(1) Harvard International Law Journal 129, at 144–151. “If the General Council accepts the recommendation . . . with regard to the termination of the [International Refugee] Organization’s care and maintenance programme, the Director-General [of IRO] assumes that Governments will wish to revert to their traditional pre-war policy in granting material assistance to refugees. Thus individual Governments would undertake to provide for any necessary care and maintenance of refugees living on their territories”: “Communication from the International Refugee Organization to the Economic and Social Council,” UN Doc. E/1392, July 11, 1949, at 8. “The stateless person in the country he is able to reach and which is ready to admit him usually finds no encouragement to settle there. And yet, if he is not to remain beyond the pale of society and to become an ‘international vagabond’ he must be integrated in the economic life of the country and settle down”: United Nations, “Statelessness,” at 23. “[T]he proposal to set up a high commissioner’s office would give that institution the functions of coordination and liaison, and would leave to States the political responsibility

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that the appropriate level of interstate coordination of refugee protection could be secured through the moral suasion of a high commissioner armed with agreed common standards of conduct.51 In most cases, however, states could again be counted on to facilitate the integration of those refugees who were unable to return home.52 This return to particularized responsibility would be feasible, however, only if it were possible simultaneously to consolidate the commitment of other states to accept a share of responsibility for the European refugee burden.53 Born of political and strategic solidarity, and nourished by economic advantage, the postwar resettlement effort had proved extremely important to recovery efforts in Western Europe. Europeans were therefore anxious to enlist external support to insure against the prospect of purely European responsibility for refugee flows from Eastern and Central Europe. The experience of the IRO had shown that the willingness of refugees to resettle outside Europe was contingent on the establishment of a common denominator of basic entitlements in overseas states. The IRO had thus regularly negotiated bilateral agreements with resettlement states to ensure the protection of refugees, particularly during the period before they were naturalized. With the impending termination of the IRO’s mandate, the establishment of a guaranteed core of refugee rights was therefore a critical element in maintaining the viability of overseas resettlement as a residual answer to refugee protection needs. Access by refugees to work and social security were especially crucial.54 The modern system of refugee rights was therefore conceived out of enlightened self-interest. To the prewar understanding of assimilation as a source of internal stability were added concerns to promote burden-sharing and to set the conditions within which states could independently control a problem of interstate dimensions:

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which should properly be theirs. The time had come to impose that responsibility on States. The principal States concerned in the refugee problem, in fact, were claiming it”: Statement of Mr. Fenaux of Belgium, 9 UNESCOR (326th mtg.), at 618 (1949). “The French and Belgian Governments considered that an international convention was essential to settle the details of the measures which national authorities would have to put into effect”: Statement of Mr. Rochefort of France, ibid. “The 1933 Convention could be used as a basis for the new convention”: Statement of Mr. Rundall of the United Kingdom, ibid. at 623. “In effect, an appeal was made to all governments to accord the same treatment to all refugees, in order to reduce the burden on contracting governments whose geographical situation meant that the greater part of the responsibility fell on them”: Statement of Mr. Desai of India, UN Doc. E/AC.7/SR.166, at 18 (1950). See also Statement of Mr. Rochefort of France, 9 UNESCOR (326th mtg.), at 616 (1949): “Not the least of the merits of the International Refugee Organization was that it had enlisted many distant countries in the work of providing asylum for refugees, the burden of which had for long been supported by the countries of Europe alone.” Communication from the International Refugee Organization to the Economic and Social Council, UN Doc. E/1392, July 11, 1949, at [35]–[37].

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This phase, which will begin after the dissolution of the International Refugee Organization, will be characterized by the fact that the refugees will lead an independent life in the countries which have given them shelter. With the exception of the “hard core” cases, the refugees will no longer be maintained by an international organization as they are at present. They will be integrated in the economic system of the countries of asylum and will themselves provide for their own needs and for those of their families. This will be a phase of the settlement and assimilation of the refugees. Unless the refugee consents to repatriation, the final result of that phase will be his integration in the national community which has given him shelter. It is essential for the refugee to enjoy an equitable and stable status, if he is to lead a normal existence and become assimilated rapidly.55

1.4.1 Substantive Rights The substantive rights set by the Convention have their origin in two main sources. Most of the entitlements are derived from the 1933 Refugee Convention, explicitly acknowledged to be the model for the 1951 agreement. A key secondary source, however, was the 1948 Universal Declaration of Human Rights.56 It influenced the redrafting of the content of several rights found in the 1933 Refugee Convention, and accounted for six additions to the earlier formulation of refugee rights.57 Several rights have no obvious predecessor, thus representing net additions to the conceptualization of refugee rights.58 Of these, the cryptically named right to “administrative assistance” 55

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“Memorandum by the Secretary-General to the Ad Hoc Committee on Statelessness and Related Problems,” UN Doc. E/AC.32/2, Jan. 3, 1950, at 6–7. Universal Declaration of Human Rights, UNGA Res. 217A(III), adopted Dec. 10, 1948 (Universal Declaration). These include the rights to non-discrimination, housing, naturalization, property, freedom of internal movement, and religious freedom. As a general matter, there was an assumption that rights declared in the Universal Declaration of Human Rights formed the clear backdrop to the Refugee Convention. In the words of the British delegate, “a Convention relating to refugees could not include an outline of all the articles of the Universal Declaration of Human Rights; furthermore, by its universal character, the Declaration applied to all human groups without exception and it was pointless to specify that its provisions applied also to refugees”: Statement of Sir Leslie Brass of the United Kingdom, UN Doc. E/AC.32/SR.11, Jan. 25, 1950, at 8. Yet it is equally clear that there was no appetite on the part of all delegates to codify in binding form all of the rights recognized in the Declaration. France, for example, was of the view that the Refugee Convention ought not to render binding the full notion of freedom of opinion and expression codified in Art. 19 of the Universal Declaration of Human Rights: Statement of Mr. Rain of France, ibid. at 9. These include protection against penalization for illegal entry, exemption from exceptional measures applied against co-nationals, and the right to transfer externally acquired assets to a country of resettlement: Refugee Convention, at Arts. 31 (“refugees unlawfully in the country of refuge”), 8 (“exemption from exceptional measures”), and 30 (“transfer of assets”).

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is especially noteworthy, as it requires state parties to facilitate practical access by refugees to their rights.59 The rights set by the Refugee Convention include several critical protections which speak to the most basic aspects of the refugee experience, including the need to escape, to be accepted, and to be sheltered. Under the Convention, refugees are not to be penalized for seeking protection, nor exposed to the risk of return to their state of origin. They are entitled to a number of basic survival and dignity rights, as well as to documentation of their status and access to national courts for the enforcement of their rights. Beyond these basic rights, refugees are also guaranteed a range of civil rights. While falling short of the comprehensive list of civil rights promoted by the Universal Declaration of Human Rights, the Refugee Convention nonetheless pays significantly more attention to the definition of a sphere of personal freedom for refugees than did any of the earlier refugee agreements. The inability of states to make any reservations to their obligations to avoid refoulement and to guarantee protection against discrimination, religious freedom, and access to the courts entrenches a universal minimum guarantee of basic liberties for refugees.60 The Convention’s guarantees of key socioeconomic rights that integrate refugees in the economic system of the country of asylum or settlement, enabling them to provide for their own needs, are especially important.61 Basic rights to property and work are supplemented by a guarantee of access to the asylum country’s social safety net. Refugees are also to be treated as citizens under labor and tax legislation. There are important parallels between these key socioeconomic rights and those negotiated under the 1939 and 1949 migrant labor conventions of the International Labor Organization (ILO).62 The ILO pioneered international legal protections against economic vulnerability, challenging the assumption of aliens law that persons outside their own country require only guarantees of basic civil rights.63 Recognizing that refugees, like migrant workers, face the risk of economic marginalization and exploitation, the 1951 Refugee Convention goes a substantial distance toward enfranchising refugees within the structures of the social welfare state. 59 60 61

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Refugee Convention, at Art. 25. See generally Chapter 4.10. Refugee Convention, at Art. 42(1). Socioeconomic rights are of course guaranteed only as an aspect of protection, not with a view to achieving systemic economic reforms. As observed in the House of Lords, “[t]he humanitarian object of the Refugee Convention is to secure a reasonable measure of protection for those with a well-founded fear of persecution . . . [I]t is not to procure a general levelling-up of living standards around the world, desirable though of course that is”: Secretary of State for the Home Department v. AH (Sudan), [2007] UKHL 49 (UK HL, Nov. 14, 2007), at [7], per Lord Bingham. See Chapter 1.5.4 at notes 376–378. 63 See Chapter 1.1 at notes 6–7.

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Finally, the Convention establishes rights of solution, intended to assist refugees to bring their refugee status to an end. The promotion of repatriation is not addressed, consistent with the position of the drafters that return should result only from the voluntary reestablishment of a particular refugee in the country of origin,64 or in consequence of a determination by the asylum state that the basis for the individual’s claim to protection has ceased to exist.65 In contrast, express provision is made for the issuance of travel documents and transfer of assets that would be necessary upon resettlement,66 and also for the alternative of naturalization in the asylum state.67 All in all, the range of refugee rights is quite sweeping: If their claims to asylum are recognized . . . all the benefits of the Refugee Convention will then be available to them. The uncertainty that attaches to their present lack of status will be replaced by the status which the Contracting States have undertaken to accord to a refugee and by all the rights that attach to it. This is a very substantial . . . benefit which is well worth arguing for.68

1.4.2 Reservations Refugee Convention, Art. 42 Reservations 1. At the time of signature, ratification or accession, any State may make reservations to articles of the Convention other than to articles 1, 3, 4, 16(1), 33, 36–46 inclusive. 2. Any State making a reservation in accordance with paragraph 1 of this article may at any time withdraw the reservation by a communication to that effect addressed to the Secretary-General of the United Nations. Refugee Protocol, Art. VII Reservations and Declarations 1. At the time of accession, any State may make reservations in respect of article IV of the present Protocol and in respect of the application in accordance with article 1 of the present Protocol of any provisions of the Convention other than those contained in articles 1, 3, 4, 16(1) and 33 thereof, provided 64 65

66 67 68

See generally Chapter 7.2. Refugee Convention, at Art. 1(C). See generally Grahl-Madsen, Status of Refugees I, at 367–411; Hathaway and Foster, Refugee Status, at 476–494; and Chapter 7.1. Refugee Convention, at Arts. 28 and 30, discussed at Chapters 6.6 and 7.3. Refugee Convention, at Art. 34, discussed at Chapter 7.4. Fornah v. Secretary of State for the Home Department, [2006] UKHL 46 (UK HL, Oct. 18, 2006), at [35], per Lord Hope. See also ibid., per Lord Brown at [121]: “[T]hose granted refugee status enjoy a number of substantial rights beyond mere irremovability, for example, rights to engage in gainful employment . . ., rights to welfare . . ., travel documents enabling the refugee to travel abroad . . ., and the opportunity for expedited naturalization.”

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that in the case of a State Party to the Convention reservations made under this article shall not extend to refugees in respect of whom the Convention applies. 2. Reservations made by States Parties to the Convention in accordance with article 42 thereof shall, unless withdrawn, be applicable in relation to their obligations under the present Protocol. All substantive rights other than to non-discrimination, freedom of religion, access to the courts, and protection against refoulement may be excluded or modified by a state through reservation69 at the time of signature, ratification, or accession to the Convention or Protocol.70 An evaluation of refugee rights in any particular state therefore requires that account be taken of the terms of participation consented to by the state in question.71 The ability to enter a reservation to most Convention rights was conceived by the drafters as a means of inducing reluctant states to sign on. The hope was that states initially disinclined to undertake protection obligations toward refugees would be willing to do so if able to constrain the scope of their participation; with the benefit of time and experience these states might then be persuaded to withdraw their reservations.72 This is a strategy that has to a large extent proved 69

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“‘Reservation’ means a unilateral statement, however phrased or named, made by a State . . . when signing, ratifying, formally confirming, accepting, approving, or acceding to a treaty, or by a State when making a notification of succession to a treaty, whereby the State . . . purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State”: International Law Commission, “Guide to Practice on Reservations to Treaties,” UN Doc. A/66/10/Add.1 (2011), at [1.1(1)]. The same rights are insulated from reservation under Art. VII(1) of the Protocol relating to the Status of Refugees, 606 UNTS 8791 [UNTS 8791], done Jan. 31, 1967 (“Refugee Protocol”). Interestingly, however, state parties to the Protocol – but not to the Convention – are allowed to enter a reservation to the provision authorizing settlement of disputes regarding interpretation or application of the Protocol by the International Court of Justice: Refugee Protocol, at Art. VII(1). While in principle a cause for concern (since the Protocol regulates the treatment of most modern refugees), the issue is moot in practical terms since no case involving the interpretation or application of refugee law has ever been referred to the International Court of Justice. See generally S. Blay and M. Tsamenyi, “Reservations and Declarations under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees,” (1990) 2(4) International Journal of Refugee Law 527. “[H]e therefore appealed to representatives to seek the golden mean, and, if possible, by precept and example, to encourage others to withdraw their reservations at a later stage. If the Conference worked along those lines, he believed it might be possible to arrive at a just and effective instrument”: Statement of the President, Mr. Larsen of Denmark, UN Doc. A/ CONF.2/SR.9, July 6, 1951, at 14. This approach is in line with the view of the International Law Commission that “[s]tates . . . which have formulated one or more reservations to a treaty should undertake a periodic review of such reservations and consider withdrawing those which no longer serve their purpose”: International Law Commission, “Guide to Practice on Reservations to Treaties,” UN Doc. A/66/10/Add.1 (2011), at [2.5.3(1)].

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successful. For example, even the most controversial right – the right of refugees to undertake wage-earning employment under Art. 17 – is now accepted without qualification by more than 75 percent of state parties.73 Of those reserving, only six states – Austria, Botswana, Burundi, Iran, Latvia, and Sierra Leone – have entered what amounts to a complete reservation to the core right to work found in Art. 17(1).74 Equally important, nine states – Australia, Brazil, Denmark, Greece, Italy, Liechtenstein, Malta, Papua New Guinea, and Switzerland – have, just as the drafters hoped, either withdrawn or reduced the scope of an initial reservation to the right of refugees to undertake employment.75 Despite the strategic utility of granting states a broad right to reserve, there is of course the risk that a state might exploit that flexibility in order to undermine the foundational goals of the treaty. Such a tack is unlawful, since as the International Law Commission has observed, “a reservation which is not prohibited by the treaty may be formulated . . . only if it is not incompatible with the object and purpose of the treaty.”76 It is thus of some concern that there has been no challenge to the extraordinarily broad reservation entered by the Holy See, purporting to accept the Convention only to the extent that it is “compatible in practice with the special nature of the Vatican City State and without prejudice to the norms governing access to and sojourn therein.”77 More optimistically, though, when in 1983 Guatemala attempted to enter a comparably far-reaching reservation – suggesting it would respect the Refugee Convention only to the extent that its provisions did not “contravene constitutional precepts in Guatemala”78 – six state parties formally objected.79 Guatemala belatedly withdrew its reservation in 2007.80 73

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Only 34 of 148 state parties – less than 25 percent of the total number – have entered a direct or indirect reservation of any kind to Art. 17: https://treaties.un.org, accessed Dec. 21, 2020. https://treaties.un.org, accessed Dec. 21, 2020. This means that more than 95 percent of state parties have assumed some duty to ensure the right of refugees to undertake employment. The most common reservation reduces or qualifies the “most-favored foreigner” level of attachment for this right (Belgium, Brazil, Cabo Verde, Denmark, Finland, Luxembourg, Netherlands, Norway, Portugal, Spain, and Uganda): ibid. Other states entering a partial reservation include Angola, Bahamas, Chile, Ethiopia, France, Honduras, Ireland, Jamaica, Madagascar, Malawi, Mexico, Mozambique, Papua New Guinea, Sweden, United Kingdom, Zambia, and Zimbabwe: ibid. https://treaties.un.org, accessed Dec. 21, 2020. International Law Commission, “Report on the Work of its Sixty-Third Session,” UN Doc. A/66/10/Add.1, at 347 (2011), at Guideline 3.1.3. https://treaties.un.org, accessed Dec. 21, 2020. Ibid. As observed by the US representative during the drafting of the Refugee Convention, “the mere fact that the provisions of a convention required a change in the existing laws of any country was not a valid argument against them. If all national laws were to remain unchanged, why should there be a convention?”: Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.37, Aug. 16, 1950, at 15. The objecting parties were Belgium, France, Germany, Italy, Luxembourg, and the Netherlands: https://treaties.un.org, accessed Dec. 21, 2020. Ibid.

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All in all, observing that the goal must be to seek “a fair balance between the search for universality and the wish to preserve the integrity of the convention,”81 Pellet is right to conclude “that the text and the practice of reservations to the 1951 Convention and the 1967 Protocol achieved that goal rather well.”82 The main concern today is that the pace of both accession to the Refugee Convention and of securing the withdrawal of reservations once a state is onboard appears to have stagnated, meaning that the viability of the drafters’ pragmatic strategy is at risk.83 With some thirty-five countries hosting nearly 5 million refugees bound by neither the Refugee Convention nor Protocol,84 there is surely an urgent need to regain momentum.85 In line with the framers’ approach, states still outside the refugee regime should be encouraged to accede, even if that accession comprises little more than the non-reservable definition of a refugee set by Art. 1 in addition to the four core non-reservable rights to non-discrimination, freedom of religion, access to the courts, and protection against refoulement.86 If coupled with a meaningful system of burden and responsibility sharing – and of course, with a serious effort to 81

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A. Pellet, “Article 42 of the 1951 Convention/Article VII of the 1967 Protocol,” in A. Zimmermann ed., The 1951 Convention relating to the Status of Refugees and its 1967 Protocol (2011) 1617 (Pellet, “Article 42”), at 1634, citing to the advisory opinion of the International Court of Justice in Reservations to the Genocide Convention, [1951] ICJ Rep 24. Pellet, “Article 42,” at 1634. Over the decade 2010–2019 there was only one accession to the refugee regime, that being Nauru in 2011: www.unhcr.org/protect/PROTECTION/3b73b0d63.pdf, accessed Jan. 15, 2020. Only five withdrawals of reservations occurred over the same timeframe, including those of Honduras (2013), Korea (2009), Liechtenstein (2009), Mexico (2014), and Papua New Guinea (2013): https://treaties.un.org, accessed Dec. 21, 2020. www.unhcr.org/protect/PROTECTION/3b73b0d63.pdf, accessed Jan. 15, 2020; UNHCR, “Global Trends: Forced Displacement in 2018,” at Annex, Table 1. If Turkey – bound only by the Convention and hence with no obligation to protect modern refugees – is included, the number rises to more than 8.6 million refugees (43 percent of the total number of refugees in the world) who are living in a country not bound by international refugee law: ibid. States attending the High Level Plenary Meeting on Addressing Large Movements of Refugees and Migrants “note[d] with satisfaction that 148 States are now parties to one or both instruments. We encourage States not parties to consider acceding to those instruments and States parties with reservations to give consideration to withdrawing them”: “New York Declaration for Refugees and Migrants,” UN Doc. A/71/L.1, Sept. 13, 2016, at [65]. While it might be argued that minimalist accession is at odds with the overarching duty to refrain from reservations that are incompatible with the object and purpose of the treaty (see note 76), on balance this position is not sound. Because the non-reservable substantive provisions (see text at note 69) suffice to bring refugees under the jurisdiction of a state party and hence to require respect for cognate rights under other treaties and general international law (see Chapter 1.5.4), they align with – even if only imperfectly ensuring – the object and purpose of the Refugee Convention and Protocol.

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show states that reservations could be withdrawn without risk to their own basic interests – the flexible approach to reservations codified in the Convention and Protocol could serve as a critical adjunct to efforts to reinvigorate the global system of refugee protection.87

1.4.3 Temporal and Geographical Restrictions Refugee Convention, Art. 1 Definition of the Term “Refugee” A. For the purposes of the present Convention, the term “refugee” shall apply to any person who: . . . (2) [a]s a result of events occurring before 1 January 1951 and owing to 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; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it . . . B. (1) For the purposes of this Convention, the words “events occurring before 1 January 1951” in article 1, section A, shall be understood to mean either (a) “events occurring in Europe before 1 January 1951”; or (b) “events occurring in Europe or elsewhere before 1 January 1951”; and each Contracting State shall make a declaration at the time of signature, ratification or accession, specifying which of these meanings it applies for the purpose of its obligations under this Convention. In addition to constraining their duties by means of reservation, the obligations of state parties to the 1951 Refugee Convention may also be limited on temporal or geographical grounds. First, state parties to the 1951 Refugee Convention are bound only to protect refugees whose fear of being persecuted resulted from events that occurred before January 1, 1951. The 1967 Protocol relating to the Status of Refugees88 prospectively abolished this temporal limitation for the countries that accede to it – which nearly all have done. There are, however two 87

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See J. Hathaway, “The Global Cop-Out on Refugees,” (2018) 30(4) International Journal of Refugee Law 591; and generally J. Hathaway ed., Reconceiving International Refugee Law (1997). Protocol relating to the Status of Refugees, 606 UNTS 8791 [UNTS 8791], done Jan. 31, 1967, entered into force Oct. 4, 1967 (Refugee Protocol).

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states, Madagascar and St. Kitts and Nevis, that acceded to the Refugee Convention but have not gone on to adopt the Protocol. These two countries are therefore not formally bound to protect the rights of modern refugees. Second, the 1951 Refugee Convention gave governments the option to limit their obligations on a geographical basis, specifically to agree to protect only European refugees. While this option is foreclosed for any country that signs onto the 1967 Protocol, one country to the Convention, Madagascar, exercised the “European refugee only” option when it acceded to the Convention and has not yet become a party to the Protocol – meaning that it is still formally entitled to refuse to protect non-European refugees.89 In addition, the Protocol includes a “grandfathering” provision that allows states that were parties to the Convention before 1967 to maintain any pre-existing geographical restriction even upon signing or acceding to the Protocol.90 Turkey falls into this category: having signed onto the Convention with a geographical limitation and not having elected to withdraw that limitation, it is exempted from obligations toward non-European refugees. On the other hand, because Hungary acceded to the Refugee Convention and Protocol only in 1989 – more than a decade after the advent of the Protocol – its attempt to include a geographical restriction was legally invalid, no doubt explaining the withdrawal of that restriction in 1998. It may, however, be the case that the maintenance of a geographical – and perhaps even temporal – limitation on duties owed refugees is no longer lawful for states (including Madagascar and Turkey, but not St. Kitts and Nevis) that are also bound by Art. 26 of the Covenant on Civil and Political Rights. Because this provision governs the allocation of all public goods, including those not set by the Covenant itself,91 there is a duty to guarantee the equal protection of the 89

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UNHCR has observed that “Madagascar has not acceded to the 1967 Protocol relating to the Status of Refugees neither did it ratify the 1969 OAU Convention governing the specific aspects of refugee problems in Africa (signed on 10 September 1969), thereby making the legal regime that governs the refugee protection in the country blurred”: UNHCR, “Submission by the United Nations High Commissioner for Refugees (UNHCR) for the Office of the High Commissioner for Human Rights’ Compilation Report: Universal Periodic Review: Madagascar” (March 2014), at 2. Making the situation murkier still, Madagascar only acceded to the 1951 Convention with the geographical reservation on December 18, 1967, more than two months after the entry into force of the Refugee Protocol. While accession to the Convention without accession to the Protocol is not formally barred, no other country has taken this tack. “The present Protocol shall be applied by the States Parties hereto without any geographic limitation, save that existing declarations made by States already Parties to the Convention in accordance with article 1B(1)(a) of the Convention, shall, unless extended under article 1B(2) thereof, apply also under the present Protocol [emphasis added]”: Refugee Protocol, at Art. I(3). “[A]rticle 26 does not merely duplicate the guarantee already provided for in article 2 but provides in itself an autonomous right. It prohibits discrimination in law or in fact in any field regulated and protected by public authorities”: UN Human Rights Committee,

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law to all persons under a state’s jurisdiction92 on any ground, including for example on the ground of “national or social origin”93 or “other status.”94 This means that unless a state maintaining a limitation were able to show that protecting European but not non-European refugees, or pre-1951 but not post-1951 refugees, was “reasonable and objective”95 – a task that seems daunting to say the least – reliance on the limitation would be internationally unlawful in relation to any refugee able to reach that state’s jurisdiction.96

1.4.4 Duties of Refugees Governments may legitimately expect refugees to comply with general laws, regulations, and public order measures. Such obligations may not, however,

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“General Comment No. 18: Non-discrimination” (1989), at [12]. See generally Chapter 1.5.5 at note 453 ff. “Thus, the general rule is that each one of the rights of the Covenant must be guaranteed without discrimination between citizens and aliens . . . The Covenant gives aliens all the protection regarding rights guaranteed therein, and its requirements should be observed by States parties in their legislation and in practice as appropriate”: UN Human Rights Committee, “General Comment No. 15: The Position of Aliens under the Covenant” (1986), at [1], [4]. Civil and Political Covenant, at Art. 26. The Human Rights Committee has cautioned that “[a]lthough the Committee had found in one case . . . that an international agreement that confers preferential treatment to nationals of a State party to that agreement might constitute an objective and reasonable ground for differentiation, no general rule can be drawn therefrom to the effect that such an agreement in itself constitutes a sufficient ground with regard to the requirements of article 26 of the Covenant. Rather, it is necessary to judge every case on its own facts”: Karakurt v. Austria, HCR Comm. No. 965/2000, UN Doc. CCPR/C/74/D/965/2000, decided Apr. 4, 2002, at [8.4]. Civil and Political Covenant, at Art. 26. For example, a temporal distinction creating a permanent privilege was found not to be objective and reasonable in Haraldsson v. Iceland, HRC Comm. No. 1306/2004, UN Doc. CCPR/C/91/D/1306/24, decided Dec. 14, 2007, at [10.4]. See Chapter 1.5.5 at note 468. As the Human Rights Committee has observed, “[t]he Covenant does not recognize the right of aliens to enter or reside in the territory of a State party. It is in principle a matter for the State to decide who it will admit to its territory. However, in certain circumstances an alien may enjoy the protection of the Covenant even in relation to entry or residence, for example, when considerations of non-discrimination . . . arise”: UN Human Rights Committee, “General Comment No. 15: The Position of Aliens under the Covenant” (1986), at [5]. While it might be argued that the temporal and geographical limitation provisions of the Refugee Convention should govern under the lex specialis principle, the jus cogens character of the duty of non-discrimination would require that it be given priority in the event of a normative conflict. As found by the Inter-American Court of Human Rights, “the principle of equality before the law, equal protection before the law and non-discrimination belongs to jus cogens, because the whole legal structure of national and international public order rests on it and it is a fundamental principle that permeates all laws”: Juridical Condition and Rights of Undocumented Migrants (Advisory Opinion OC-18/03) (IACtHR, Sept. 17, 2003), at [10].

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treat refugees less favorably than other resident non-citizens. Most important, while refugees who breach valid laws of the host country are clearly subject to the usual range of penalties, states are prohibited from invoking the failure of refugees to comply with generally applicable duties as grounds for the withdrawal of rights established under the Convention. Refugee Convention, Art. 2 General Obligations Every refugee has duties to the country in which he finds himself, which require in particular that he conform to its laws and regulations as well as to measures taken for the maintenance of public order. The original draft of the Refugee Convention contained a chapter that imposed three kinds of obligation on refugees: to obey laws, pay taxes, and perform military and other kinds of civic service.97 The duty to respect the law was simply “a reminder of the essential duties common to nationals as well as to foreigners in general.”98 Liability to taxation and military conscription on the same terms as citizens was viewed as a fair contribution to expect from a refugee “residing in the country of asylum, enjoying a satisfactory status, and earning his living there.”99 Just as refugees should benefit from most of the advantages that accrue to nationals, so too should they assume reasonable duties toward the state that afforded them protection. There were two quite different reactions to the proposal to codify the duties owed by refugees to an asylum state. A number of governments felt that such a provision was superfluous in view of the general duty of foreigners to obey the laws of their country of residence.100 In any event, as the American representative argued, “refugees themselves would not be signing the Convention and would not be asked to do any more than anyone else in the country in which they took refuge.”101 In legal terms, “[i]t was impossible to write into a convention an obligation resting on persons who were not parties thereto.”102 It was therefore 97

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United Nations, “Memorandum by the Secretary-General to the Ad Hoc Committee on Statelessness and Related Problems,” UN Doc. E/AC.32/2, Jan. 3, 1950, at 31–33. Chapter IV was entitled “Responsibilities of Refugees and Obligations Incumbent Upon Them.” 99 Ibid. at 31. Ibid. at 32. “[T]he article was unnecessary, as it contained nothing which was not obvious. Indeed, it was generally known that the laws of a country applied not only to its nationals but also to the foreigners residing in its territory, whether they were refugees or not”: Statement of Mr. Larsen of Denmark, UN Doc. E/AC.32/SR.11, Jan. 25, 1950, at 10. See also Statement of Mr. Guerreiro of Brazil, ibid., and Statement of Mr. Kural of Turkey, ibid. at 11. “Since an alien is subject to the territorial supremacy of the local state, it may apply its laws to aliens in its territory, and they must comply with and respect those laws”: R. Jennings and A. Watts eds., Oppenheim’s International Law (1992), at 905. See also Chapter 1.1 at note 2. Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.34, Aug. 14, 1950, at 7. Statement of Mr. Herment of Belgium, UN Doc. A/CONF.2/SR.3, July 3, 1951, at 22. This point was not entirely accurate, since individuals can be subject to obligations set by an international treaty: Jurisdiction of the Courts of Danzig, [1928] PCIJ Rep, Series B, No. 15.

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suggested that there was no need to include specific mention of the obligations of refugees. However, France and several other states were adamant that such a provision [was] indispensable. It would have a moral application in all countries where there was no obligation on the immigrant alien to take an oath of loyalty or allegiance or to renounce [one’s] former nationality. The purpose . . . was not to bring about the forcible absorption of refugees into the community, but to ensure that their conduct and behavior was in keeping with the advantages granted them by the country of asylum.103

These countries had little patience for the argument that refugees were already obliged to respect the laws of their host states: [I]t should not be forgotten that what to some seemed obvious did not, unfortunately, square with the facts. That was proved by France’s experience. The obligations of refugees should therefore be stressed and an appropriate clause inserted. Too often the refugee was far from conforming to the rules of the community . . . Often, too, the refugee exploited the community.104

Largely out of respect for the significant refugee protection contributions made by France,105 it was agreed to include a specific reference in the Convention to the duties of refugees. The compromise was that while refugees would not be subject to any particularized duties,106 the Convention would make clear that

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This point was clearly made by Justice Kirby, who cited Art. 2 in support of the view that while refugees “are not parties to the Convention; . . . they are certainly the subjects of the Convention provisions”: NAGV and NAGW of 2002, [2005] HCA 6 (Aus. HC, Mar. 2, 2005), at [68], per Kirby J. Statement of Mr. Rochefort of France, UN Doc. E/AC.32/SR.34, Aug. 14, 1950, at 4. See also Statements of Mr. Perez Perozo of Venezuela and Mr. Herment of Belgium, ibid. at 5. A similarly exigent understanding of the duties owed by refugees is clear in remarks made by Mr. Robinson of Israel, UN Doc. E/AC.32/SR.12, Jan. 25, 1950, at 7: “[A] refugee was a foreigner sui generis to whom the draft convention accorded special status and in certain cases even equality with the nationals of the recipient country. The refugee thus obtained certain privileges and it was only fair to balance those by conferring upon him greater responsibilities [emphasis added].” Statement of Mr. Rochefort of France, UN Doc. E/AC.32/SR.34, Aug. 14, 1950, at 7–8. See e.g. Statements of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.23, Feb. 3, 1950, at 8 and UN Doc. E/AC.32/SR.34, Aug. 14, 1950, at 6–7; and Statement of Mr. Robinson of Israel, UN Doc. A/CONF.2/SR.4, July 3, 1951, at 8. It does not follow, however, that requiring refugees to cooperate with the process of refugee status assessment, e.g. by submitting available and relevant evidence as soon as practicable (see e.g. Council Directive on common procedures for granting and withdrawing international protection (recast), Doc. 2013/32/EU, June 26, 2013, at Art. 13) is at odds with Art. 2 (but see H. Lambert, “Article 2,” in A. Zimmermann ed., The 1951 Convention relating to the Status of Refugees and its 1967 Protocol (2011) 625 (Lambert, “Article 2”), at 637–638). So long as such duties are conceived and implemented in a manner consistent with both refugee law (e.g. Refugee Convention Art. 31) and international human rights

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refugee status may not be invoked to avoid whatever general responsibilities are imposed upon other residents of the host country.107 The notion of a specific enumeration of refugee duties was dropped.108 The unwillingness of the drafters to subject refugees to special duties can most clearly be seen in the debate about regulation of the political activities of refugees. It was argued that refugees tend to be more politically active than other immigrants,109 and that their militancy could threaten the security interests of an asylum state.110 The French government therefore proposed to allow governments “to restrict or prohibit political activity on the part of refugees.”111 Strong exception was taken to this proposal, both on grounds of general principle and because it suggested a right to treat refugees less favorably than other resident

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law (e.g. Civil and Political Covenant Art. 14), they are no more than a refugee-specific application of the general responsibility of all persons under a state’s jurisdiction to cooperate with authorities seeking to enforce valid laws. Indeed, it is generally agreed that the duty to establish the facts relevant to assessment of refugee status is shared between the refugee applicant and the state: UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status (1979, re-issued 1992 and 2019) (UNHCR, Handbook), at [195]–[205]. The essence of the French plea could be satisfied by the inclusion of “a moral per contra” falling short of an enforceable legal duty: Statement of Mr. Rochefort of France, UN Doc. E/AC.32/SR.34, Aug. 14, 1950, at 4. “[T]he Committee had altered the structure of the draft convention, which was meant to cover the liabilities as well as the rights of refugees”: Statement of Mr. Weis of the International Refugee Organization, UN Doc. E/AC.32/SR.12, Jan. 25, 1950, at 10. Under the agreement negotiated, the denial of refugee protection for breach of a host country’s laws would only be possible if the very high standard of Art. 33(2) were met: G. Ben-Nun, “The British-Jewish Roots of Non-refoulement and its True Meaning for the Drafters of the 1951 Convention,” (2014) 28(1) International Journal of Refugee Law 93, at 107–108. “It was not too difficult to ask a foreign national to leave the country but it was often virtually impossible to expel a refugee. Different measures had to be taken for the two groups. Moreover, it had been the experience of some States that foreign nationals rarely engaged in political activity, while refugees frequently did so”: Statement of Mr. Cuvelier of Belgium, UN Doc. E/AC.32/SR.23, Feb. 3, 1950, at 10–11. A restriction of the political rights of refugees “should not be regarded as a discriminatory measure against refugees but rather as a security measure. While it was embarrassing to favour the withdrawal of rights from a group of people, it would be better to do that than to expose that group of people – refugees – to the more drastic alternative of deportation”: Statement of Mr. Devinat of France, ibid. at 9. See also Statement of Mr. Larsen of Denmark, UN Doc. E/AC.32/SR.10, Jan. 24, 1950, at 10: “[R]efugees who had found freedom and security in another country should not be permitted to engage in political activity which might endanger that country.” France, “Proposal for a Draft Convention,” UN Doc. E/AC.32/L.3, Jan. 17, 1950, at Art. 8, General Obligations. See also Statement of Mr. Kural of Turkey, UN Doc. E/AC.32/SR.23, Feb. 3, 1950, at 11: “[S]ince the draft convention was to be a definitive document governing the status of refugees, it might conveniently be invoked by the latter in order to sanction undesirable political activity.”

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foreigners.112 The result was agreement that while “laws prohibiting or restricting political activity for foreigners generally would be equally applicable to refugees,”113 the Convention would not authorize states to impose any additional restrictions on refugees.114 There is therefore reason to be concerned about the tendency – especially noticeable among African states115 – to codify the duties of refugees as a class distinct from non-citizens in general. 112

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“[H]e regarded it as undesirable to include in a United Nations document a clause prohibiting political activities – a very broad and vague concept indeed . . . In the absence of a specific clause on the subject, [governments] would still have the right to restrict political activities of refugees as of any other foreigners. On the other hand, the inclusion of the clause might imply international sanction of such a restriction. The possibility of such an interpretation was undesirable”: Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.23, Feb. 3, 1950, at 8. See also Statements of Mr. Chance of Canada and Mr. Larsen of Denmark, ibid. at 9. Statement of Mr. Perez Perozo of Venezuela, ibid. at 11. See also Statements by each of the representatives of the United States, Canada, Denmark, and China affirming a state’s sovereign authority to limit the political rights of foreigners: ibid. at 8–9. This view is, of course, consonant with the traditional view under international aliens law, discussed in Chapter 1.1 at note 6. In view of the general applicability of Art. 19 of the subsequently enacted International Covenant on Civil and Political Rights, 999 UNTS 172 (UNTS 14668), adopted Dec. 16, 1966, entered into force Mar. 23, 1976 (Civil and Political Covenant), however, it is questionable whether governments continue to enjoy a comparable discretion to limit the expression of political opinions by non-citizens. As observed by the Human Rights Committee, “the general rule is that each one of the rights must be guaranteed without discrimination between citizens and aliens. Aliens receive the benefit of the general requirement of non-discrimination in respect of the rights guaranteed in the Covenant, as provided for in article 2 thereof. This guarantee applies to aliens and citizens alike”: UN Human Rights Committee, “General Comment No. 15: The Position of Aliens under the Covenant” (1986), UN Doc. HRI/ GEN/1/Rev.7, May 12, 2004, at 140, [2]. See generally Chapter 1.5.5. Nor does the more recent general comment on freedom of expression allow for differential treatment of noncitizens in this regard: UN Human Rights Committee, “General Comment No. 34: Article 19: Freedoms of Opinion and Expression,” UN Doc. CCPR/C/GC/34, Sept. 12, 2011. Robinson’s comment that “Article 2 must be construed to mean that refugees not only must conform with the laws and general regulations of the country of their residence but are also subject to whatever curbs their reception country may consider necessary to impose on their political activity in the interest of the country’s ‘public order’ [emphasis added]” is therefore not an accurate summary of the drafting history. See N. Robinson, Convention relating to the Status of Refugees: Its History, Contents and Interpretation (1953) (Robinson, History), at 72; and P. Weis, The Refugee Convention, 1951: The Travaux Préparatoires Analysed with a Commentary by Dr. Paul Weis (posthumously pub’d., 1995) (Weis, Travaux), at 38. To be valid under Art. 2, curbs on political activity cannot be directed solely at refugees or a subset of the refugee population, but must apply generally, for example to aliens or all residents of the asylum state. The duty of non-discrimination must, of course, also be respected in the designation of the group to be denied political rights (see generally Chapters 1.5.5 and 3.4). The interpretation of the duty to conform to “public order” measures, upon which Robinson and Weis base their arguments, is discussed at note 129. Lambert cites Ghana, Kenya, Sierra Leone, South Africa, and Tanzania as examples of countries that have legislation codifying the duties of refugees per se: Lambert, “Article 2,”

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With the elimination of a specific chapter on the duties of refugees, the question of the liability of refugees to taxation was transferred to the “administrative measures” section of the Convention.116 The reference to a duty of refugees to perform military or other service was deleted altogether, leaving this issue to the discretion of particular states.117 This left only a general obligation to respect the laws and regulations of the host state, included in the draft Convention as a symbolic recognition of the basic responsibility of refugees: [W]hen article 2 had been drafted, many representatives had felt that there was no need for it. It had been maintained that the laws of a given country obviously applied to refugees and aliens as well as to nationals of the country. Article 2 had been introduced for psychological reasons, and to maintain a balance, because the draft Convention tended to overemphasize the rights and privileges of refugees. It was psychologically advantageous for a refugee, on consulting the Convention, to note his obligations towards his host country.118

Against the backdrop of this clear intention that Art. 2 simply signals the continuing relevance to refugees of an asylum state’s general laws and regulations,119 three concerns arising in practice may be considered. First, Art. 2 cannot be relied upon to legitimate an otherwise invalid measure. Because it merely recognizes the duty of refugees to comply with valid laws, regulations, and public order measures established apart from the Refugee Convention, the legality of a particular constraint must be independently established, including by reference to any relevant requirements of the Refugee Convention itself or general international human rights law. For example, a domestic law or public order measure that purports to prevent refugees from practicing their religion would not be saved by Art. 2, as it would be contrary to the explicit requirements of Art. 4 of the Refugee Convention.120

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at 637. This may well be an echo of the unusual provision in African regional refugee law that takes a more aggressive approach to the duties of refugees: see Chapter 1.5.3 at note 269 ff. See Chapter 4.5.2. The vote to reject this provision was 4–3 (4 abstentions): UN Doc. A/AC.32/SR.12, Jan. 25, 1950, at 9. “The Committee was not, however, the appropriate body to legislate on the very difficult question of military service. No provision regarding that question should be included in the convention; it should be solved by the operation of national legislation within the general framework of international law”: Statement of Mr. Larsen of Denmark, ibid. at 8. Statement of Mr. Robinson of Israel, UN Doc. A/CONF.2/SR.3, July 3, 1951, at 21. It is nonetheless not quite right to suggest that Art. 2 “was only intended to provide a moral obligation on refugees” (Lambert, “Article 2,” at 642). Art. 2 should instead be understood as a form of residual clause, confirming the clear legal duty of refugees to abide by domestic laws and regulations of general application excepting only to the extent these are inconsistent with the rights guaranteed by the Refugee Convention. See generally Chapter 4.7.

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On the other hand, because refugees are exempt from penalization for illegal entry only when in flight from persecution,121 the House of Lords correctly determined that Contracting States need only overlook the initial offence of entering and being present illegally. After they arrive in a safe country, the refugees are to present themselves to the authorities who must treat them in accordance with the Convention. In that situation the refugees have no justification for committing further offences to escape persecution and are bound by the criminal law, just like anyone else in the country concerned. That is made clear by Article 2.122

Similarly, while governments are free to impose conditions of admission on refugees by regulation or contract, such policies must be in compliance with the rights otherwise guaranteed to refugees under the Convention.123 As such, there is reason to be concerned by the practice of the United States to force refugees resettled to that country to become permanent residents within one year of arrival,124 and then subject them to the risk of deportation for 121 122

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See Chapter 4.2.1. R v. Asfaw, [2008] UKHL 31 (UK HL, May 21, 2008), at [95], per Lord Rodger. See also the views of Lord Mance at [143], affirming the same understanding of Art. 2. A proposal that would have required refugees, for example, to remain in the employment found for them by the host government was advanced by Australia: UN Doc. A/CONF.2/ 10. “The Australian Government was put to considerable expense in selecting migrants, in contributing to the cost of their journey to Australia, in arranging for their reception, and generally in helping them to adapt to their new place in the community. It had therefore been regarded as reasonable that migrants should recognize their obligations to their new country, and continue to do work for which they were most needed for a limited period”: Statement of Mr. Shaw of Australia, UN Doc. A/CONF.2/SR.3, July 3, 1951, at 20. The United Nations High Commissioner replied that the Australian objective could best be met by enforcing the obligations against the refugee on the basis of domestic regulation or contract, rather than by a specific duty in the Refugee Convention itself: Statement of Mr. van Heuven Goedhart, UNHCR, UN Doc. A/CONF.2/SR.4, July 3, 1951, at 4. More specifically, the British delegate observed that “[h]e believed that the Australian delegation was not so much concerned with the failure of a refugee to comply with conditions, as with the need for ensuring that the specific conditions imposed on entry to Australia conformed with the provisions of the draft Convention . . . [I]t seemed to him that the question of whether the Australian practice was permissible must be considered in the light of other articles of the draft Convention which imposed certain conditions upon States. He would therefore suggest that the Australian representative should withdraw his amendment [to Art. 2]”: Statement of Mr. Hoare of the United Kingdom, ibid. at 6. The Australian amendment to Art. 2 was subsequently withdrawn: ibid. at 7. “Every refugee admitted under 8 U.S.C. § 1157 whose refugee status has not been terminated is required, one year after entry into the United States, to submit an application to adjust status and become an LPR, i.e., to be admitted for permanent residence [citing 8 C.F.R. § 209.1]”: Vasiliy Romanishyn v. Attorney General, 455 F. 3d 175 (US CA3, July 20, 2006), at [5]. The US Board of Immigration Appeals has applied this rule also to persons who arrive directly in the United States to seek protection (“asylees” in US parlance), an

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reasons applicable to permanent residents in general125 but not allowed by refugee law126 – for example, deportation for having committed a property offense such as shoplifting.127 International law does not allow a refugee to be forced to give up her refugee status; unless there was an error in the initial assessment, only cessation or exclusion grounds justify the termination of refugee status.128 As such, Art. 2 cannot be invoked to sanction the deportation of a person who is in fact a refugee for reasons less demanding than the requirements of the Refugee Convention itself. Second, care must be taken to ensure that a state does not overreach on the basis of Art. 2’s express acknowledgment that refugees may be subject to “measures taken for the maintenance of public order.” The original formulation of Art. 2 imposed a duty on refugees “to conform to the [host state’s] laws and regulations, including measures taken for the maintenance of public order [emphasis added].”129 This wording suggested that only public order130 measures codified in laws or regulations could legitimately be applied against refugees. Without any substantive discussion in the drafting committee, however, Art. 2 was amended to authorize a state to require refugees to “conform to

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interpretation that one circuit court has recently questioned: Nadeem Ali v. Attorney General, 814 F. 3d 306 (US CA5, Feb. 22, 2016). “A refugee whose refugee status was not terminated pursuant to 8 U.S.C. § 1157(c)(4), and who has not yet been adjudicated inadmissible by an immigration officer in the course of applying for [lawful permanent resident] status pursuant to 8 C.F.R. § 209.1, may not be placed in removal proceedings, even if he has engaged in conduct that would subject a non-refugee to removal . . . To that limited extent, refugee status is a protected status”: Vasiliy Romanishyn v. Attorney General, 455 F. 3d 175 (US CA3, July 20, 2006), at [6]. Under the Refugee Convention, removal for a crime committed inside the asylum state is only lawful if the requirements of Art. 33(2) are satisfied, namely conviction by a final judgment of a “particularly serious” crime and the making of a determination that as a result thereof the refugee “constitutes a danger to the community of that country”: see generally Chapter 4.1.4. In a prominent case considered by both the Court of Appeals for the 3rd Circuit and the US Board of Immigration Appeals, a refugee was ordered deported from the United States under this rule for having committed retail theft offenses: Smriko v. Attorney General, 387 F. 3d 279 (US CA3, Oct. 26, 2004), In re Sejid Smirko, 23 I&N Dec. 836 (US BIA, Nov. 10, 2005). Despite the reservations earlier expressed by the Court of Appeals, the Board of Immigration Appeals determined “that an alien who has been admitted as a refugee and has adjusted his or her status to that of a lawful permanent resident may be placed in removal proceedings for acts or conduct amounting to grounds for removal under section 237(a) of the Act. Although some vestiges of refugee status are afforded by regulation to refugees who have been admitted as lawful permanent residents, termination of refugee status is not a precondition to the initiation of removal proceedings against refugees who have adjusted their status”: ibid. “Once a person’s status as a refugee has been determined, it is maintained unless he comes within the terms of one of the cessation clauses”: UNHCR, Handbook, at [112]. UN Doc. E/AC.32/L.32, Feb. 9, 1950, at 3. The term “public order” was selected to convey the meaning of the civil law concept of “ordre public”: Robinson, History, at 72; Weis, Travaux, at 38.

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its laws and regulations as well as to measures taken for the maintenance of public order [emphasis added].”131 On the basis of the literal meaning of Art. 2, refugees are therefore prima facie bound by any general measures taken in the interest of public order, whether or not formalized by law or regulation.132 Care is nonetheless called for to ensure that the ordre public provision is not invoked in defense of a clearly invidious distinction.133 Schabas argues in the context of the Civil and Political Covenant that “the purpose for interference does not relate to the specific ordre public of the State concerned but rather to an international standard of democratic society.”134 A comparable benchmark should govern resort to the public order authority under Art. 2 of the Refugee Convention, thereby ensuring that the common purpose of advancing refugee rights is not undermined.135 On this basis, Ghana’s arrest in 2008 of Liberian refugees, including pregnant women and separated children, engaged in a sitin to protest the lack of resettlement options136 would not be justified by Art. 2 as an exercise of public order authority.137 131

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UN Doc. E/1850, Aug. 25, 1950, at 15. This language is identical to that included in the Convention as finally adopted. It is doubtful, however, that “public order” encompasses all measures viewed as necessary in the interest of public morality. The Egyptian delegation proposed a specific provision to this effect. “In any case, whether the Belgian amendment was adopted or not, the Egyptian delegation considered it necessary to add to the end of article 2 the words ‘and of morality,’ for morality was inseparable from public order”: Statement of Mr. Mostafa of Egypt, UN Doc. A/CONF.2/SR.3, July 3, 1951, at 23. This suggestion attracted no interest, and was not proceeded with. But see Weis, Travaux, at 38: “Although this is not explicitly stated, refugees may be expected to behave in such a manner, for example, in their habits and dress, as not to create offence in the population of the country in which they find themselves.” Ordre public is a “highly dangerous civil law concept . . . [which] covers at least as much ground as public policy in English-American law and perhaps much more”: J. Humphrey, “Political and Related Rights,” in T. Meron ed., Human Rights in International Law: Legal and Policy Issues 171 (1984) (Meron, Human Rights in International Law), at 185. The contentious nature of the notion of ordre public is discussed e.g. in Chapter 4.7 at note 2376; in Chapter 5.1 at note 225; and in Chapter 6.5 at note 947. W. Schabas, UN International Covenant on Civil and Political Rights: Nowak’s CCPR Commentary (2019) (Schabas, Nowak’s CCPR Commentary), at 319. Schabas makes specific reference to an attempt by South Africa to justify apartheid-era restrictions as necessary to its own particular ordre public. “Since ordre public may otherwise lead to a complete undermining of freedom of expression and information – or to a reversal of rule and exception – particularly strict requirements must be placed on the necessity (proportionality) of a given statutory restriction. Furthermore, the minimum requirements flowing from a common international standard for this human right, which is so essential for the maintenance of democracy, may not be set too low”: Schabas, Nowak’s CCPR Commentary, at 571. UNHCR, “Ghana: Deportation to Liberia,” Mar. 25, 2008, www.unhcr.org/en-us/news/ briefing/2008/3/47e8f5722/ghana-deportation-liberia.html, accessed Jan. 15, 2020. “The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are

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Third and most important, there is no basis whatever to assert that Art. 2 authorizes a decision either to withdraw refugee status or to withhold rights from refugees on the grounds of the refugee’s failure to respect laws, regulations, or public order measures. The Conference of Plenipotentiaries considered this question in the context of a Belgian proposal that would have transformed Art. 2 from a statement of principle to a condition of eligibility for continuing protection: Only such refugees as fulfil their duties toward the country in which they find themselves and in particular conform to its laws and regulations as well as to measures taken for the maintenance of public order, may claim the benefit of this Convention.138

This proposal met with serious disapproval. The representative of Israel asserted that the proposal “was a revolutionary departure from the original intention of article 2,”139 which posed very serious dangers: If it were to be adopted, refugees who were guilty, for example, of minor infractions of the law would be deprived of all their rights and privileges. To try to make saints out of refugees would be to set the Convention at naught. Again, while he believed in the good faith of the countries that would sign the Convention, it could not be denied that xenophobia existed in certain countries, and junior officials who disliked refugees might seek pretexts to deprive them of their rights.140

The British delegate agreed that “[t]he Belgian amendment would confer on States full power to abolish refugee status for any infractions of the laws of the country concerned, which . . . would, in fact, nullify all the rights conferred by the Convention.”141 In an attempt to preserve the essence of the Belgian initiative, France suggested that refugee rights should be forfeited only consequent to a breach

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necessary in a democratic society”: Civil and Political Covenant, at Art. 21. A protected assembly is an intentional and temporary gathering of several persons for a specific purpose: Schabas, Nowak’s CCPR Commentary, at 595. UN Doc. A/CONF.2/10. The Belgian delegate insisted that his amendment raised no issue of substance, but was instead “mainly a question of form”: Statement of Mr. Herment of Belgium, UN Doc. A/CONF.2/SR.3, July 3, 1951, at 18. Later, however, he conceded that “[h]is amendment would permit Contracting States to withdraw the benefit of the provisions of the Convention from refugees contravening the laws and regulations of the receiving country, or failing to fulfil their duties towards that country or guilty of disturbing public order”: ibid. at 22. Statement of Mr. Robinson of Israel, UN Doc. A/CONF.2/SR.3, July 3, 1951, at 21. Ibid. Statement of Mr. Hoare of the United Kingdom, ibid. at 22. See also Statement of Mr. Chance of Canada, ibid. at 23: “[T]he inclusion of [the] clause might frustrate the purposes of the Convention”; and Statement of Baron van Boetzelaer of the Netherlands, ibid. at 24.

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of the most serious duties owed to a host state, and on the basis of a fair procedure: Any refugee guilty of grave dereliction of duty and who constitutes a danger to the internal or external security of the receiving country may, by appropriate procedure assuring maximum safeguards for the person concerned, be declared to have forfeited the rights pertaining to the status of refugees, as defined in this Convention.142

As the President of the Conference observed, this more carefully framed amendment allowed the delegates to address the fundamental question of “whether a refugee who failed to fulfil certain conditions should forfeit the rights proclaimed in the draft Convention, even if his country of refuge did not expel him.”143 The proponents of the French amendment argued that this approach to Art. 2 was actually of benefit to refugees, since it would allow a host state to protect its vital interests without resorting to the more extreme alternatives of either withdrawing refugee status or expulsion.144 Refugees would be deprived of the special benefits of the Refugee Convention, but would be subjected to no particular disabilities. Most important, the incorporation of a forfeiture provision in Art. 2 was said to be an important source of protection for the majority of refugees who might otherwise be stigmatized by the actions of a troublesome minority: It was actually a matter of fundamental interest to refugees generally that the measures advocated by the French delegation should be taken against such refugees as carried on activities constituting a danger to the security of the countries receiving them. If certain disturbances provoked by organized bands were allowed to increase in France, the final outcome 142

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UN Doc. A/CONF.2/18. “[T]he word ‘duty’ in the French amendment referred to the duties mentioned in the first line of article 2 itself, which were incumbent on the refugee as a resident in the receiving country . . . [T]he concept of ‘receiving country’ . . . covered . . . both the ‘receiving country’ and what was meant by the ‘country of selective immigration.’ With regard to the procedure to be adopted in respect of the forfeiture by the refugee of the rights pertaining to his status, it should be noted that the measures in question related to extremely serious – and, incidentally, rare – cases, and came within the category of counter-espionage operations. No country could possibly be expected to expatiate in an international forum on the measures which it proposed to adopt in that connexion. ‘Forfeiture’ of his rights by the refugee would transfer him from the jurisdiction of the international convention to that of the legislation currently in force in the countries concerned”: Statement of Mr. Rochefort of France, UN Doc. A/CONF.2/SR.4, July 3, 1951, at 9. Statement of the President, Mr. Larsen, UN Doc. A/CONF.2/SR.4, July 3, 1951, at 5. See also Statement of Mr. Hoare of the United Kingdom, ibid. at 6. “[T]he person subjected to [the measures contemplated] would preserve his status as [a] refugee; the pronouncement of his forfeiture of rights would in no way withdraw that status from him, but would simply have the effect of depriving him of all or some of the benefits granted by the Convention”: Statement of Mr. Herment of Belgium, ibid. at 10.

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would be a wave of xenophobia, and public opinion would demand not merely the application of the measures laid down in the French proposal, but the expulsion of a great many innocent refugees.145

On the other side of the argument, UNHCR and the United Kingdom preferred that no restrictions on refugee rights be possible. Unless the risk posed was serious enough to meet the requirements for exclusion from refugee status146 or expulsion from the country,147 the host country should continue to respect all rights guaranteed by the Convention. It would be inappropriate to include in the Convention “a provision by virtue of which a State would be able to treat a refugee as a pariah.”148 This view prevailed, and the French amendment was withdrawn.149 The legal position is therefore clear: Art. 2 does not authorize the withdrawal of refugee rights for even the most serious breaches of a refugee’s duty to the host state.150 Because rights under the Convention are guaranteed to all who are in fact refugees, refugees must be dealt with in the same ways as any other persons who violate a generally applicable law, regulation, or public order measure.151 Refugees are subject only to the same penalties as others, 145 146

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Statement of Mr. Rochefort of France, ibid. at 11. “[W]hile some provision such as that proposed by the French delegation was desirable, it would more appropriately be placed in article 1, among the provisions relating to the exclusion from the benefits of the Convention of certain categories of refugees . . . [A] refugee dealt with as proposed in the French amendment . . . would cease to be a refugee for the purposes of the Convention”: Statement of Mr. van Heuven Goedhart, UNHCR, ibid. at 9–10. The requirements for exclusion from refugee status are discussed in GrahlMadsen, Status of Refugees I, at 262–304; Hathaway and Foster, Refugee Status, at 524–598; and Goodwin-Gill and McAdam, Refugee in International Law, at 162–197. “In his view, it should be recognized that in the last resort a country might be obliged to return the offender to the country from which he came . . . [but] [i]t would be wrong to exclude any such person from the benefits of the Convention while he still remained as a refugee in a particular country”: Statement of Mr. Hoare of the United Kingdom, UN Doc. A/CONF.2/SR.4, July 3, 1951, at 10. See generally Chapter 5.1. Statement of Mr. Hoare of the United Kingdom, UN Doc. A/CONF.2/SR.4, July 3, 1951, at 11. Statement of Mr. Rochefort of France, UN Doc. A/CONF.2/SR.24, July 17, 1951, at 19. “[N]on-observance [by a refugee] of his ‘duties’ according to Article 2 has no effect in international law”: Grahl-Madsen, Status of Refugees I, at 58. Lambert similarly concludes “that the non-observance of a duty covered by Art. 2 does not have any effect in international law (as opposed to national law); it does not entail the loss of refugee status or any particular right under the 1951 Convention”: Lambert, “Article 2,” at 632. “What was important was that the refugee should not constitute a problem, and that he should conform to the laws and regulations to which he was subject. When he failed to do so, appropriate sanctions should be applied, and repeated violations of the regulations might reasonably warrant expulsion. Until he was expelled, however, he should be treated in accordance with the provisions of the Convention and be subject only to such sanctions as were applicable to other law-breakers”: Statement of Mr. Hoeg of Denmark, UN Doc. A/CONF.2/SR.4, July 3, 1951, at 4–5. The only exception is the right of refugees to receive travel documents, which may be suspended under the explicit terms of the Convention

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and may not be threatened with withdrawal of the particular benefits of refugee status.152 All rights under the Convention are to be respected in full until and unless refugee status is either validly withdrawn under Art. 1 (in particular the cessation or exclusion clauses), or the strict requirements for deportation under Art. 32 or Art. 33 are met.153 Art. 2 thus provided no authority for Ecuador’s 2016 deportation without due process of 149 Cubans, including persons seeking recognition of refugee status, on the grounds that they were engaged in an illegal protest regarding the denial of humanitarian visas.154 The decision to reject a “middle ground” position that would have authorized the forfeiture of specific rights as an alternative to the withdrawal of refugee status or expulsion is conceptually important. The ability of the host state to enforce its laws and regulations in the usual ways, for example by incarceration, is in no sense compromised by the Refugee Convention.155 The argument that failure to allow states to withdraw Convention rights from refugees would compel them to resort to the withdrawal of status or expulsion is therefore fallacious. Even the specific concern of the French drafter to be in a position to deal with spies who might infiltrate the refugee population156 can readily be addressed by generic counter-espionage legislation to which refugees would clearly be subject in common with the population at large. The proposed right of forfeiture would have transformed Art. 2 from an affirmation of the duty of refugees to respect laws of general application to a mechanism for the differential treatment of refugees on the basis of their heightened vulnerability. Yet refugee rights are not rewards or bonuses; they are rather the means by which the international community has agreed to restore to refugees the basic ability to function within a new national community. The rights set by the Convention are the core minimum judged necessary to compensate refugees for the situation-specific disabilities to which involuntary migration has

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where required by “compelling reasons of national security or public order”: Refugee Convention, at Art. 28. See generally Chapter 6.6. Thus, for example, the threat of the Thai government in July 2003 to revoke the registration of any refugee who “break[s] any Thai laws” was clearly inconsistent with the requirements of the Refugee Convention: “Thais to Intern 1,500 Burmese,” International Herald Tribune, July 3, 2003, at 1. Swaziland also acted contrary to international law when it withdrew refugee status from thirty-seven refugees and ordered their “provisional isolation” because they had embarrassed Prince Sobandla by protesting during a visit to a refugee camp. The Prince justified the decision on the grounds of “gross misconduct and breach of refugee ethics”: Times of Swaziland, July 19, 2002. Refugee Convention, at Arts. 32 and 33, discussed at Chapters 5.1 and 4.1 respectively. Human Rights Watch, “Massive Expulsion of Cubans from Ecuador,” July 15, 2016. “It is correct to state that the rights enjoyed by the refugees under the 1951 Convention are not absolute and [refugees] are expected to abide by the national law . . . Thus, one’s refugee status does not provide immunity from prosecution or other legal sanctions that the State is entitled to pursue”: Kituo Cha Sheria et al. v. Attorney General, Petitions Nos. 19 and 115 of 2013 (Ken. HC, July 26, 2013), at [86]. See note 142.

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subjected them. To have sanctioned the withdrawal from refugees of some part of this restitutionary package of rights would therefore have injected a distinctively punitive dimension into the Refugee Convention.157 The position ultimately adopted, in contrast, requires refugees to comply with all general legal requirements of the host state and to pay the usual penalties for any breach of the law, but ensures that they are not denied the rights deemed necessary to offset the specific hardships of forced migration.

1.4.5 Non-impairment of Other Rights Refugee Convention, Art. 5 Rights Granted Apart from this Convention Nothing in this Convention shall be deemed to impair any rights and benefits granted by a Contracting State to refugees apart from this Convention. The original purpose of Art. 5 was to safeguard the privileges of particular refugee classes that existed at the time the Convention came into force.158 The express validation of free-standing rights and benefits owed to refugees adds nothing to the legal enforceability of such duties.159 Nonetheless, it is a valuable affirmation of the concern of the drafters “to grant refugees as many rights as possible, not to restrict them.”160 First, the International Refugee Organization had sometimes negotiated agreements with particular states that provided for stronger rights than those codified in the Convention, which the drafters wished to ensure were not challenged on the basis of an assertion that the earlier rights were superseded by the provisions of the Refugee Convention.161 The validity of rights granted by such free-standing arrangements was instead to be determined by the terms of those agreements.162 157

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Indeed, as Haines has observed, “[i]t would be unfortunate . . . were Article 2 to be employed as a bed of Procrustes, exacting from refugees conformity to absolute standards of lawful conduct”: R. Haines, International Academy of Comparative Law National Report for New Zealand (1994), at [28]. “The committee also thought it advisable to make it clear that the adoption of the present Convention should not impair any greater rights which refugees might enjoy prior to or apart from this Convention”: “Report of the Ad Hoc Committee on Refugees and Stateless Persons, Second Session,” UN Doc. E/1850, Aug. 25, 1950, at 11. See also A. Skordas, “Article 5,” in A. Zimmermann ed., The 1951 Convention relating to the Status of Refugees and its 1967 Protocol (2011) 669 (Skordas, “Article 5”), at 675 (“Art. 5 is, in substance, a ‘may’ clause”). But Art. 5 plays a critical role in the event of normative conflict: see text at note 165. Robinson, History, at 79. The Refugee Convention does, however, replace the earlier refugee treaties of 1922, 1924, 1926, 1928, 1933, 1935, 1938, 1939, and 1946: Refugee Convention, at Art. 37. Robinson, History, at 79. Indeed, as originally conceived, Art. 5 may even have been intended to authorize discrimination in favor of particular sub-groups of the refugee population,

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This goal was consistent with the approach taken in other parts of the Convention, for example the recognition of refugee status granted under earlier agreements,163 as well as the decision to insulate previously recognized refugees from the new rules for cessation of status due to change of circumstances.164 Second, refugees sometimes benefitted from social legislation adopted in particular countries that was quite progressive relative to the “lowest common denominator” of rights guaranteed in the Refugee Convention. Art. 5 was intended to provide balance by signaling that the sometimes minimal rights it had been possible to secure for refugees in the cut and thrust of negotiation did not require the withdrawal from refugees of more generous protections granted under domestic law.165 The Refugee Convention could not, of course, require governments to safeguard superior rights, but neither should it serve as a pretext to diminish the quality of protection already enjoyed by refugees.166 Despite the importance of these two concerns, it would be a mistake to see Art. 5 as simply retrospective. As initially adopted at the Second Session of the Ad Hoc Committee, it provided only that “[n]othing in this Convention shall be deemed to impair any rights and benefits granted by a Contracting State to refugees prior to or apart from this Convention [emphasis added].”167 But at the Conference of Plenipotentiaries the President declared that the words “prior to or” were “redundant,” resulting in the decision to safeguard simply rights and benefits granted refugees “apart from” the Convention.168 While there was no discussion on point, the plain meaning of the provision as adopted requires states to honor not only pre-existing obligations, but also whatever rights might accrue to refugees in the future.169 Art. 5 is therefore a continuing affirmation of the propriety of states legislating domestically beyond the standards of the Refugee Convention and, particularly, of them continuing to accord refugees all advantages that accrue to them by virtue of other agreements, such as bilateral treaties with the refugees’ country of origin.170 Most important, however, Art. 5 should be read as establishing how duties under refugee law are to be reconciled to the requirements of the array of

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a matter now generally proscribed by general international human rights law: see Chapter 1.5.5. Refugee Convention, at Art. 1(A)(1). Ibid. at Arts. 1(A)(1) and 1(C)(5). See generally Grahl-Madsen, Status of Refugees I, at 108–119, 307–309, and 367–369; and Hathaway and Foster, Refugee Status, at 483–485. Art. 5 is stated in peremptory terms (“[n]othing in this Convention shall be deemed to impair [emphasis added]”): Refugee Convention, at Art. 5. Weis, Travaux, at 44. UN Doc. E/AC.32/L.42/Add.1, at 8, adopted by the Committee as Art. 3(a): UN Doc. E/ AC.32/SR.43, Aug. 25, 1950, at 14. Statement of the President, Mr. Larsen, UN Doc. A/CONF.2/SR.5, Nov. 19, 1951, at 18. See also Weis, Travaux, at 44: “It resulted from the history of the Article that both rights and benefits granted prior to the Convention and subsequently to its entry into force are meant.” See generally Chapter 3.2.

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important accords negotiated since the advent of the Refugee Convention – including expansions and interpretations of international refugee law itself, the advent of regional refugee regimes, and especially the evolution of a dynamic system of international human rights law.171 International human rights law generally grants rights to all persons subject to a state’s jurisdiction, and is therefore a critical source of enhanced protection for refugees.172 Art. 5 of the Refugee Convention ensures that refugee rights are not seen as limited to those set by the refugee treaty itself, but rather makes clear that refugees are entitled to the benefit of more general human rights principles. As Chetail explains, “The Geneva Convention itself provides the means for resolving any potential conflicts of norms [between refugee law and human rights law], for its Article 5 preserves the continuing applicability of more favorable standards granted apart from [the Refugee] Convention without regard to the so-called specialty of the norms.”173 Article 5, in other words, ensures that in the event of any normative dissonance between the Refugee Convention and simultaneously applicable general human rights standards, refugees are entitled to the benefit of the higher standard.174 171

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Another possible source of complementary rights and benefits is the notion of diplomatic or territorial asylum more broadly conceived: see Skordas, “Article 5,” at 684–690. See Chapter 1.5.4. V. Chetail, “Are Refugee Rights Human Rights? An Unorthodox Questioning of the Relations between Refugee Law and Human Rights Law,” in R. Rubio-Marin ed., Human Rights and Immigration 19 (2014) (Chetail, “Are Refugee Rights Human Rights?”), at 22. Skordas, in contrast, contends that it is “more appropriate to examine the relationship between refugee law and human rights law in Art. 7, which establishes a clear obligation of the contracting parties to afford refugees the same treatment as that accorded to aliens generally”: Skordas, “Article 5,” at 675; see also ibid. at 677 and 698. Art. 7, which establishes the general standard of treatment for refugees (see Chapter 3.2) does indeed reinforce the right of refugees to benefit from general norms of human rights law. But it is Art. 5 that most clearly resolves the potentially thorny question of how the two bodies of law should be reconciled, requiring that refugees receive the benefit of the cognate rights set by international human rights law. Edwards takes much the same position, arguing that “[i]f Article 5 of the [Refugee] Convention is read as a ‘successive clause’ or ‘conflict clause,’ then Article 30(2) of the 1969 Vienna Convention on the Law of Treaties would support this interpretation”: A. Edwards, “Human Rights, Refugees, and the Right ‘to Enjoy’ Asylum,” (2005) 17(2) International Journal of Refugee Law 293, at 306. She also notes that Art. 30(3)–(4) of the Vienna Convention tends to the same result since “[it] provide[s] that where an earlier treaty is not terminated or suspended, the former applies only to the extent that its provisions are compatible with the latter treaty. While there is no refugee-specific replacement for the 1951 Convention, there is an overlap in relation to particular provisions . . . and application of sub-Articles 30(3) and (4) of the Vienna Convention would mean that all the provisions of the 1951 Convention and/or 1967 Protocol remain on foot apart from those which are incompatible with [international human rights law] instruments subsequently ratified”: ibid. Schabas describes the import of the cognate provision of the Civil and Political Covenant as “giv[ing] expression to the principle that the rights of the Covenant merely represent a minimum standard and that the combined effect of various

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The next section examines the most important of these complementary sources of refugee rights that have come into existence since the drafting of the Refugee Convention.

1.5 Post-Convention Sources of Refugee Rights Apart from the minority of refugees who continued to benefit from special arrangements negotiated by the International Refugee Organization or codified in earlier treaties,175 the internationally defined rights of most refugees in 1951 were limited to those set by the Refugee Convention. Since 1951, however, authoritative interpretations of rights set by the Refugee Convention have been issued, and some binding enhancements to refugee-specific rights have been secured at the regional level. Most important, the development of a pervasive treaty-based system of international human rights law has filled many critical gaps in the Refugee Convention’s rights regime. A modern understanding of refugee rights therefore requires an appreciation not only of the Convention-based global refugee regime, but of both other sources of refugee law and general human rights law. That said, it is important to understand that these developments do not challenge the centrality of the Refugee Convention to the conceptualization of refugee rights. Regional refugee regimes are, as the analysis below shows,176 expressly intended to complement the global regime, not to displace it. And despite their real value, general international human rights treaties are necessarily framed in generic terms, meaning that even when they speak to the same concerns as refugee law there is a vital continuing role for the Refugee Convention in contextualizing norms to ensure that account is taken of the particular disabilities that derive from involuntary migration. There are moreover critical concerns of refugees – for example, the duty not to be penalized for unlawful arrival or presence,177 and most critically the duty not to be returned in any manner to the risk of being persecuted178 – that are either embryonic or missing altogether from general human rights law. It is therefore clear that while the evolution of human rights conventions that include refugees within their scope has resulted in a net level of legal protections significantly greater than that envisaged by the Refugee Convention, the most effective way to safeguard the human dignity of refugees is achieved by synthesizing refugee-specific and general human rights law.

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human rights conventions, domestic norms and customary international law may not be interpreted to the detriment of the individual”: Schabas, Nowak’s CCPR Commentary, at 113. As discussed in Chapter 1.4.5 at note 158, these rights were safeguarded under Art. 5 of the Refugee Convention. See Chapter 1.5.3. 177 See Chapter 4.2. 178 See Chapter 4.1.

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1.5.1 Protocol relating to the Status of Refugees There have been few formal changes to the global refugee rights regime since the entry into force of the Refugee Convention. The 1967 Refugee Protocol is a treaty that incorporates the Refugee Convention’s rights regime by reference,179 and extends those protections to all refugees by prospectively eliminating the Convention’s temporal and geographical limitations.180 The Protocol is not, as is commonly believed, an amendment to the 1951 Convention.181 Rather, as Weis observed, “[w]ith the entry into force of the Protocol there exist, in fact, two treaties dealing with the same subject matter.”182 The Full Federal Court of Australia has reached the same conclusion, noting that states may accede to the Protocol without first becoming a party to the Convention, and that those which do so are immediately bound to grant the rights described in the Convention to a broader class of persons – that is, to modern refugees from all parts of the world – than would have been the case by accession to the Convention itself.183 In one important respect, however, the Protocol might be seen to be at odds with the advancement of refugee rights. In contrast to Art. 38 of the Refugee Convention, parties to the Protocol have the option at the time of accession to 179 181

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Refugee Protocol, Art. I(1). 180 See Chapter 1.4.3. But see UNHCR, “Introductory Note to Text of the 1951 Convention and 1967 Protocol Relating to the Status of Refugees” (2010), at 2: “The Convention entered into force on 22 April 1954 and it has been subject to only one amendment in the form of the 1967 Protocol [emphasis added].” P. Weis, “The 1967 Protocol relating to the Status of Refugees and Some Questions relating to the Law of Treaties,” (1967) 42 British Yearbook of International Law 39, at 60. More specifically, “[t]he procedure for revision of the 1951 Convention, as provided for in its terms, was not resorted to in view of the urgency of extending its personal scope to new groups of refugees and of the fact that the amended treaty would have required fresh consent by the states parties to the Convention. Instead, a new instrument, the 1967 Protocol relating to the Status of Refugees, was established, which does not amend the 1951 Convention and modifies it only in the sense that States acceding to the Protocol accept the material obligations of the Convention in respect of a wider group of persons. As between the state parties to the Convention, it constitutes an inter se agreement by which they undertake obligations identical ratione materiae with those provided for in the Convention for additional groups of refugees not covered by the Convention on account of the dateline of 1 January 1951. As regards states not parties to the Convention, it constitutes a separate treaty under which they assume the material obligations laid down in the Convention in respect of refugees defined in Art. 1 of the Protocol, namely those covered by Art. 1 of the Convention and those not covered by reason of the dateline”: ibid. at 59. Minister for Immigration and Multicultural Affairs v. Savvin, (2000) 171 ALR 483 (Aus. FFC, Apr. 12, 2000), per Katz J. Justice Katz thus concludes that “for parliament to describe the 1951 Convention as having been ‘amended’ by the 1967 Protocol is inaccurate. At the same time, however, for a state like Australia, which was already bound by the 1951 Convention before acceding to the 1967 Protocol, the error is one of no practical significance”: ibid.

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deny other state parties the right to refer a dispute regarding their interpretation or application of the Protocol to the International Court of Justice.184 One country, Venezuela, has in fact excluded the Court’s jurisdiction. Angola, Botswana, China, Congo, El Salvador, Ghana, Jamaica, Rwanda, St. Vincent and the Grenadines, and Tanzania have purported to make a similar election. Yet because these countries, unlike Venezuela, are also parties to the Convention – which contains a mandatory provision regarding the Court’s jurisdiction185 – a dispute involving one of these states may still be referred to the International Court of Justice so long as it involves the “interpretation or application” of the Convention, rather than of the Protocol. Over time there will of course be fewer and fewer living pre-1951 refugees,186 meaning that countries entering a relevant reservation under the Protocol may in practice have successfully insulated themselves from referrals based on “application” of the Convention. But so long as the referral is framed as a more general matter of “interpretation” of the Convention – for example, directed to the meaning of a given Convention right, albeit incorporated by reference in the Protocol – a referral to the International Court of Justice should be deemed admissible. A decade after the adoption of the Protocol, the United Nations Conference on Territorial Asylum considered, but ultimately rejected, the codification of a new treaty that would have enhanced the protection of refugees. In addition to agreeing to important interpretations of existing norms – for example, that the duty of non-refoulement should be understood to include “rejection at the frontier”187 – the Conference reached agreement in principle on two new norms: to require states to facilitate the admission of a refugee’s spouse and 184

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Under Art. VII(1) of the Refugee Protocol, a state may enter a reservation regarding Art. IV of the Protocol, which establishes the right of other state parties to refer a dispute to the International Court of Justice. In contrast, Art. 42 of the Refugee Convention, which addresses the scope of permissible reservations to that treaty, does not allow states to enter a reservation to Art. 38, the equivalent of Art. IV of the Protocol. “While the Convention provides for obligatory jurisdiction of the International Court of Justice in any dispute relating to its interpretation or application, one reason for the Protocol was for some States to be able to make reservations to this jurisdictional clause”: Sohn and Buergenthal, Movement of Persons, at 113. The Protocol incorporated the possibility of a reservation to the jurisdiction of the International Court of Justice in order to encourage participation by African and other states that preferred disputes to be resolved “by negotiation or conciliation and not by judicial means”: K. Oellers-Frahm, “Article 38 of the 1951 Convention/Article IV of the 1967 Protocol,” in A. Zimmermann ed., The 1951 Convention relating to the Status of Refugees and its 1967 Protocol (2011) 1537, at 1552, n. 92. Pellet considers the Protocol’s revision of the Convention’s approach on this point was “a sign of the times – and of the change in the majority of States, now defiant towards any intervention of the ICJ”: Pellet, “Article 42,” at 1623. See UNHCR, “Addendum to the Report of the United Nations High Commissioner for Refugees,” UN Doc. A/6311/Rev.1/ Add.1, Jan. 1, 1968, at [33]. Refugee Convention, at Art. 38. 186 See Chapter 1.4.3 at note 88. UN Doc. A/CONF.78/12, Feb. 4, 1977. See generally A. Grahl-Madsen, Territorial Asylum (1980) (Grahl-Madsen, Territorial Asylum).

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minor or dependent children, and to allow states to make refugee rights contingent on compliance with the laws of the state of asylum.188 Since the failure of the Conference, however, there has been no effort either to resuscitate the asylum convention project, or specifically to formalize as matters of law the consensus achieved on either family reunification or the right to withdraw refugee status for breach of host state laws.

1.5.2 Conclusions and Guidelines on International Protection Rather than formulate new refugee rights, the focus of effort since 1975 has been to elaborate the content of existing standards in non-binding form. Most important, the state members of the UNHCR’s governing body – the Executive Committee of the High Commissioner’s Program – have issued “Conclusions on the International Protection of Refugees.”189 The Conclusions address such matters as non-rejection and non-refoulement,190 exemption from penalties for illegal entry,191 conditions of detention,192 limits on expulsion and extradition,193 family unity,194 the provision of identification and travel documents,195 physical security,196 and the rights 188 189

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UN Doc. A/CONF.78/12, Feb. 4, 1977. See generally Grahl-Madsen, Territorial Asylum. See UNHCR, “Conclusions on International Protection Adopted by the Executive Committee of the UNHCR Programme, 1975–2017,” UN Doc. HCR/IP/3/Eng/REV. 2017. UNHCR has also issued “A Thematic Compilation of Executive Committee Conclusions” (2014), which organizes relevant Executive Committee Conclusions under seventy-three major chapters. No Conclusions on International Protection were issued in 2018 or 2019, with a decision on a future workplan delayed until 2020: UNHCR Executive Committee, “Notes of the Rapporteur, 18–20 June 2019,” www.unhcr.org/5d0b442c7.pdf, accessed Jan. 15, 2020. See UNHCR Executive Committee Conclusions Nos. 1 (1975), 5 (1977), 6 (1977), 17 (1980), 22 (1981), 29 (1983), 50 (1988), 52 (1988), 55 (1989), 62 (1990), 65 (1991), 68 (1992), 71 (1993), 74 (1994), 77 (1995), 81 (1997), 82 (1997), 85 (1998), 87 (1999), 89 (2000), 91 (2001), 94 (2002), 99 (2004), 100 (2004), 102 (2005), 103 (2005), and 108 (2008). Ibid. at Nos. 22 (1981), 44 (1986), 55 (1989), 85 (1998), and 97 (2003). Ibid. at Nos. 3 (1977), 7 (1977), 36 (1985), 44 (1986), 46 (1987), 47 (1987), 50 (1988), 55 (1989), 65 (1991), 68 (1992), 71 (1993), 85 (1998), 89 (2000), 93 (2002), 101 (2004), 106 (2006), and 107 (2007). Ibid. at Nos. 7 (1977), 9 (1977), 17 (1980), 21 (1981), 44 (1986), 50 (1988), 55 (1989), 61 (1990), 68 (1992), 71 (1993), 79 (1996), 85 (1998), 96 (2003), and 102 (2005). Ibid. at Nos. 1 (1975), 9 (1977), 15 (1979), 22 (1981), 24 (1981), 47 (1987), 74 (1994), 84 (1997), 85 (1998), 88 (1999), 91 (2001), 93 (2002), 100 (2004), 101 (2004), 103 (2005), 104 (2005), 105 (2006), 107 (2007), and 110 (2010). Ibid. at Nos. 8 (1977), 18 (1980), 24 (1981), 35 (1984), 64 (1990), 65 (1991), 72 (1993), 73 (1993), 91 (2001), 93 (2002), 99 (2004), 100 (2004), 101 (2004), 102 (2005), 104 (2005), 105 (2006), 107 (2007), 111 (2013), and 114 (2017). Ibid. at Nos. 20 (1980), 25 (1982), 29 (1983), 39 (1985), 44 (1986), 45 (1986), 46 (1987), 48 (1987), 54 (1988), 55 (1989), 58 (1989), 60 (1989), 64 (1990), 68 (1992), 72 (1993), 73 (1993), 74 (1994), 77 (1995), 79 (1996), 81 (1997), 87 (1999), 89 (2000), 90 (2001), 98 (2003), 99 (2004), 105 (2006), and 108 (2008).

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to education197 and to undertake employment.198 An effort has also been made to interpret rights to respond to the special vulnerabilities of refugees who are children,199 women,200 older persons,201 or caught up in a large-scale influx.202 While not matters of law, these standards have strong political authority as consensus resolutions of a formal body of government representatives203 expressly responsible for “providing guidance and forging consensus on vital protection policies and practices.”204 Recognized by decision-makers as representing “collective international expertise on refugee matters including legal expertise,”205 it is thus unsurprising that Executive Committee Conclusions are afforded significant respect in national and regional refugee jurisprudence.206 Indeed, the case is strong that these state-based 197

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Ibid. at Nos. 47 (1987), 58 (1989), 59 (1989), 74 (1994), 77 (1995), 80 (1996), 84 (1997), 85 (1998), 91 (2001), 93 (2002), 98 (2003), 100 (2004), 101 (2004), 102 (2005), 104 (2005), 105 (2006), 106 (2006), 107 (2007), 108 (2008), 109 (2009), 110 (2010), and 111 (2013). Ibid. at Nos. 50 (1988), 58 (1989), 64 (1990), 88 (1999), 93 (2002), 95 (2003), 100 (2004), 101 (2004), 102 (2005), 104 (2005), 105 (2006), 107 (2007), 108 (2008), and 109 (2009). Ibid. at Nos. 47 (1987), 59 (1989), 72 (1993), 73 (1993), 74 (1994), 79 (1996), 85 (1998), 87 (1999), 89 (2000), 98 (2003), 105 (2006), 107 (2007), and 113 (2016). Ibid. at Nos. 32 (1983), 39 (1985), 46 (1987), 54 (1988), 60 (1989), 64 (1990), 68 (1992), 71 (1993), 73 (1993), 74 (1994), 77 (1995), 79 (1996), 81 (1997), 85 (1998), 87 (1999), 89 (2000), 98 (2003), 102 (2005), 105 (2006), 107 (2007), 108 (2008), 109 (2009), and 110 (2010). Ibid. at Nos. 32 (1983), 85 (1998), 87 (1999), 89 (2000), 94 (2002), 102 (2005), 105 (2006), 108 (2008), 109 (2009), and 110 (2010). Ibid. at Nos. 19 (1980), 22 (1981), 25 (1982), 44 (1986), 81 (1997), 85 (1998), 90 (2001), 100 (2004), 101 (2004), 104 (2005), 109 (2009), and 110 (2010). The New Zealand Court of Appeal gave particular weight to determinations by the UNHCR Executive Committee, noting that their “value derives in part from the fact that the executive committee is itself an assembly of states which has debated the issue and settled on a formal statement concerning it”: Attorney General v. Refugee Council of New Zealand Inc., [2003] 2 NZLR 577 (NZ CA, Apr. 16, 2003), at [100]. See also G. Gilbert, “UNHCR and Courts: Amicus curiae . . . sed curia amica est?,” (2016) 28(4) International Journal of Refugee Law 622, arguing that Executive Committee Conclusions deserve real deference because of the breadth and commitment to protection of the states represented and the fact that the Conclusions are reached by consensus. See UNHCR Executive Committee Conclusions Nos. 81 (1997), 103 (2005), and 104 (2005). McAdam observes that while Executive Committee Conclusions are “regularly invoked” by some courts, the Conclusions “have not received extensive curial discussion as to their value or purpose”: J. McAdam, “Interpretation of the 1951 Convention,” in A. Zimmermann ed., The 1951 Convention relating to the Status of Refugees and its 1967 Protocol (2011) 75 (McAdam, “1951 Convention”), at 112. See generally M. Fresia, “Building Consensus within UNHCR’s Executive Committee: Global Refugee Norms in the Making,” (2014) 27(4) Journal of Refugee Studies 514 (Fresia, “Building Consensus”). Re R, Dec. No. 59/91 (NZ RSAA, May 19, 1992), at 20. Cases in which top courts have referenced Executive Committee Conclusions include Regina v. Immigration Officer at Prague Airport and Another (Respondents) ex parte European Roma Rights Centre, [2004] UKHL 55 (UK HL, Dec. 9, 2004), at [24], per Lord Bingham; Fornah v. Secretary of State for the Home Department, [2006] UKHL 46

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conclusions are properly assimilated to the context of the Refugee Convention for interpretive purposes, as provided for by Art. 31(3)(b) of the Vienna Convention.207 The Conclusions of the Executive Committee are moreover deserving of real deference by virtue of UNHCR’s authority under Article 35 of the Refugee Convention.208 As observed by the Canadian Federal Court of Appeal, [I]n Article 35 of the [Refugee] Convention the signatory states undertake to cooperate with the Office of the United Nations High Commissioner for Refugees (UNHCR) in the performance of its functions and, in particular, to facilitate the discharge of its duty of supervising the application of the Convention. Accordingly, considerable weight should be given to recommendations of the Executive Committee of the High Commissioner’s Program on issues relating to refugee determination and protection that are designed to go some way to fill the procedural void in the Convention itself.209

The duty of state parties to cooperate with the UNHCR is a sufficient basis for the agency to require state parties to explain treatment of refugees that does not

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(UK HL, Oct. 18, 2006), at [84], per Baroness Hale; and QAAH of 2004 v. Minister for Immigration and Multicultural and Indigenous Affairs, [2006] HCA 53 (Aus. HC, Nov. 15, 2006), at 118, per Kirby J. In their commissioned study, Deschamp and Dowd describe cases in which Executive Committee Conclusions were drawn upon to interpret domestic, regional, or international legislation; in which they were used to interpret the Refugee Convention; in which they informed analysis of customary law or consensus among states; and in which they informed the role of the decision-maker. The cases reported were from the European Court of Human Rights, the Inter-American Court of Human Rights, and the UN Human Rights Committee, as well as from the national courts of Australia, Austria, Ireland, Japan, New Zealand, Poland, Slovenia, and the United Kingdom: B. Deschamp and R. Dowd, “Review of the Use of UNHCR Executive Committee Conclusions on International Protection,” UN Doc. PDES/2008/03 (April 2008) (Deschamp and Dowd, “Review”), at 24–27. See Chapter 2.2 at note 80. See also McAdam, “1951 Convention,” at 112; and Deschamp and Dowd, “Review,” at [86]. “The Contracting States undertake to co-operate with the Office of the United Nations High Commissioner for Refugees . . . in the exercise of its functions, and shall in particular facilitate its duty of supervising the application of the provisions of this Convention”: Refugee Convention, at Art. 35(1). As the UK Supreme Court has noted, “[t]he guidance given by the UNHCR is not binding, but should be accorded considerable weight, in the light of the obligation of Member States under article 35 of the Convention to facilitate its duty of supervising the application of the provisions of the Convention”: Al-Sirri v. Secretary of State for the Home Department, [2012] UKSC 54 (UK SC, Nov. 21, 2012), at [36]. Rahaman v. Minister of Citizenship and Immigration, 2002 ACWSJ Lexis 1026 (Can. FCA, Mar. 1, 2002), per Evans J.A. To similar effect see Attorney General v. E, [2000] 3 NZLR 257 (NZ CA, July 11, 2000), at 269; Refugee Council of New Zealand Inc. v. Attorney General, [2003] 2 NZLR 577 (NZ HC, May 31, 2002), at [47]; and R v. Asfaw, [2008] 1 AC 1061 (UK HL, May 21, 2008), at [13].

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conform to the Conclusions on Protection adopted by the agency’s governing body. This authority to require the international community to engage in a dialogue of justification is thus comparable to the human rights droit de regard enjoyed by the General Assembly:210 UNHCR may legitimately expect states to respond to concerns about the adequacy of refugee protection as measured by reference to Conclusions adopted by the state members of its Executive Committee, though it has no power to require compliance with those or any other standards.211 Over the last decade or so, however, both the pace at which Conclusions on Protection are issued and their relevance to the advancement of refugee rights have been in steep decline. This decline coincides with a period of increased interpretive activism by the staff of UNHCR in the elaboration of protection standards, suggesting a shift in the locus of interpretive authority away from the Executive Committee212 – thus raising the concern whether standards recommended by agency staff, but which have not been adopted as a Conclusion of its Executive Committee, are to be afforded comparable deference.213 210

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The authority of the UN General Assembly under Art. 13 of the UN Charter to initiate studies and make recommendations relating to human rights is a “droit de regard” in the sense that it entitles the General Assembly and subordinate bodies to scrutinize and discuss human rights as well as to make recommendations, but includes no right to require conformity with any standard. See Certain Expenses of the United Nations, [1962] ICJ Rep 151, at 163–165. The English Court of Appeal quoted this passage from the first edition (2005) of the current volume, at 114, accepting it arguendo, though finding that the facts of the case did not require it to decide the issue: HF (Iraq) and MK (Iraq) v. Secretary of State for the Home Department, [2013] EWCA Civ 1276 (Eng. CA, Oct. 13, 2013), at [46]. States have affirmed “the fundamental importance of UNHCR as the multilateral institution with the mandate to provide international protection to refugees . . . and recall[ed] [their] obligations as States Parties to cooperate with UNHCR in the exercise of its functions; [and] [u]rge[d] all states to consider ways that may be required to strengthen the implementation of the 1951 Convention and/or 1967 Protocol and to ensure closer cooperation between States Parties and UNHCR to facilitate UNHCR’s duty of supervising the application of the provisions of these instruments”: “Declaration of States Parties to the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees,” UN Doc. HCR/MMSP/2001/09, Dec. 13, 2001, incorporated in Executive Committee of the High Commissioner’s Program, “Agenda for Protection,” UN Doc. EC/52/SC/CRP.9/Rev.1, June 26, 2002, at Part I, [8]–[9]. Tension between some state members and the UNHCR staff apparently led to a 2008 request by states for an evaluation of the way in which Conclusions are drafted, “showing clear indications of a growing mistrust vis-à-vis the agency and of a will [of states] to regain ownership of the process”: Fresia, “Building Consensus,” at 525. “Some judgments differentiate between the weight of the [Executive Committee] Conclusions and UNHCR Guidelines”: Deschamp and Dowd, “Review,” at [86]. A reasonable position suggested in a dissenting judgment in the Full Federal Court of Australia is simply to treat advice prepared by UNHCR staff as “documents prepared by experts to assist States . . . to carry out their obligations under the Convention”: QAAH of

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There is, of course, a long-standing practice of giving significant weight to the UNHCR’s Handbook on Procedures and Criteria for Determining Refugee Status,214 a comprehensive analysis of the basic precepts of refugee law prepared by the agency’s protection staff at the behest of the Executive Committee nearly half a century ago.215 The Supreme Court of the United States, for example, determined that “the Handbook provides significant guidance” on the interpretation of refugee law,216 and is a “useful interpretive aid.”217 The Advocate General for the Court of Justice of the European Union found the Handbook to be “persuasive,”218 while both the Supreme Court of Canada and the British House of Lords found the Handbook to be “highly persuasive.”219 Yet not even the Handbook is treated as a source of legal obligation,220 with the English Court of Appeal having pointedly observed that despite the weight of accumulated experience contained in the Handbook, the UNHCR “is not a lawgiver, or a source of law.”221 This view aligns with warnings from the House of Lords that the Handbook “is of no binding force either in municipal

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2004 v. Minister for Immigration and Indigenous Affairs, [2005] FCAFC 136 (Aus. FFC, July 27, 2005), at [46], per Wilcox J. in dissent. UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status (1979, reissued 1992 and 2019). In 1977, the Executive Committee “[r]equested the Office to consider the possibility of issuing – for the guidance of Governments – a handbook relating to procedures and criteria for determining refugee status”: UNHCR Executive Committee Conclusion No. 8, “Determination of Refugee Status” (1977), at [(g)], in UNHCR, “Conclusions on International Protection Adopted by the Executive Committee of the UNHCR Programme, 1975–2017,” UN Doc. HCR/IP/3/Eng/REV. 2017. Immigration and Naturalization Service v. Cardoza Fonseca, (1987) 480 US 421 (US SC, Mar. 9, 1987), at 439, n. 22. Immigration and Naturalization Service v. Aguirre Aguirre, (1999) 526 US 415 (US SC, May 3, 1999), at 427. The Handbook was also referenced in Negusie v. Attorney General, (2009) 555 US 511 (US SC, Mar. 3, 2009), at 536–537, per Stevens J. (in partial dissent). “Opinion of Advocate General Sharpston, delivered on 4 March 2010,” in the case of Bolbol v. Germany, Dec. No. C-31/09 (CJEU, June 17, 2010), at [16]. Chan v. Canada, [1995] 3 SCR 593 (Can. SC, Oct. 19, 1995), at [119]. In the words of the House of Lords, “the UNHCR Handbook, although not binding on states, has high persuasive authority, and is much relied on by domestic courts and tribunals”: R v. Secretary of State for the Home Department, ex parte Adan and Aitseguer, [2001] 2 WLR 143 (UK HL, Dec. 19, 2000), per Lord Steyn. The Handbook has been treated as evidence of the current state of international practice on interpretation of refugee law: R (Hoxha) v. Secretary of State for the Home Department, [2002] EWCA Civ 1403 (Eng. CA, Oct. 14, 2002), at [36]; AH (Algeria) v. Secretary of State for the Home Department, [2015] EWCA Civ 1003 (Eng. CA, Oct. 14, 2015), at [12], though this characterization has been questioned by the Full Federal Court of Australia: NBGM v. Minister for Immigration and Multicultural and Indigenous Affairs, [2006] FCAFC 60 (Aus. FFC, May 12, 2006), at 162. Chan v. Canada, [1995] 3 SCR 593 (Can. SC, Oct. 19, 1995), at [119]; Immigration and Naturalization Service v. Aguirre Aguirre, (1999) 526 US 415 (US SC, May 3, 1999), at 428. AH (Algeria) v. Secretary of State for the Home Department, [2015] EWCA Civ 1003 (Eng. CA, Oct. 14, 2015), at [13].

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or international law,”222 the determination by the New Zealand Court of Appeal that the Handbook “cannot override the function of [the decisionmaker] in determining the meaning of the words of [the Refugee] Convention,”223 the insistence of the Federal Court of Canada that the Handbook “is not determinative of Canadian refugee law,”224 and the finding of the Constitutional Court of South Africa that “the Handbook is merely a guideline and persuasive authority which can be overridden.”225 Indeed, some courts have become noticeably guarded in their appraisal of the Handbook’s authority,226 finding, for example, that it is “a secondary source as an aid to interpretation akin to the work of jurists,”227 and even that it is “more [of] a practical guide . . . than . . . a document purporting to interpret the meaning of relevant parts of the Convention.”228 In its final statement on point, the House of Lords observed only that the Handbook “is recognized as an important source of guidance on matters to which it relates”229 – a significantly

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R v. Secretary of State for the Home Department, ex parte Bugdaycay, [1987] AC 514 (UK HL, Feb. 19, 1987), per Lord Bridge of Harwich at 525; cited with approval in M v. Attorney General, [2003] NZAR 614 (NZ HC, Feb. 19, 2003). In the House of Lords case of Hoxha, “Lord Brown . . . noted the Handbook’s language of ‘aspiration and exhortation,’ and tracked the development of UNHCR’s positions from 1979 onwards, through a Conclusion adopted by the UNHCR Executive Committee in 1992, and then eventually to a statement of ‘obligation’ in revised guidelines published in 2003. He did not accept that the evidence justified such a progression”: G. Goodwin-Gill, “The Search for One True Meaning,” in G. Goodwin-Gill and H. Lambert eds., The Limits of Transnational Law (2010) 204, at 228. S v. Refugee Status Appeals Authority, [1998] 2 NZLR 291 (NZ CA, Apr. 2, 1998), at 300. See also M v. Attorney General, [2003] NZAR 614 (NZ HC, Feb. 19, 2003). Gjon Rrotaj v. Minister of Citizenship and Immigration, [2016] FC 152 (Can. FC, Feb. 8, 2016), at [22]. In reaching this decision the court referenced the earlier findings of the Supreme Court of Canada in Pushpanathan v. Canada, [1998] 1 SCR 982, at [53–54], and Chan v. Canada, [1995] 3 SCR 593, at [46]: ibid. Dobrosav Gavrić (Afghanistan) v. Refugee Status Determination Officer, [2018] ZACC 38 (SA CC, Sept. 28, 2018), at [35]. In WAGO of 2002 v. Minister for Immigration and Multicultural and Indigenous Affairs, 194 ALR 676 (Aus. FFC, Dec. 20, 2002), the Australian Full Federal Court declined to find any error in the determination that the provisions in the UNHCR Handbook “were not part of the law of Australia and did not provide grounds for legal review of the Tribunal’s decision.” The Scottish Court of Session has also made clear that decision-makers are not obliged to refer to the Handbook when making a decision on a relevant point: Morteza Fafschi, [2006] CSOH 125 (Sc. CSOH, Aug. 15, 2006), at [26]. NBGM v. Minister for Immigration and Multicultural and Indigenous Affairs, [2006] FCAFC 60 (Aus. FFC, May 12, 2006), at 162. NADB of 2001 v. Minister for Immigration and Multicultural Affairs, [2002] FCAFC 326 (Aus. FFC, Oct. 31, 2002). See also Todea v. MIEA, (1994) 20 AAR 470 (Aus. FC, Dec. 22, 1994), at 484. Sepet and Bulbul v. Secretary of State for the Home Department, [2003] UKHL 15 (UK HL, Mar. 20, 2003), at [12].

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less enthusiastic endorsement than the same court issued just two years earlier.230 The decline in the deference afforded the Handbook may be attributable to the increasing dissonance between some of its positions and those resulting from the intensive period of judicial engagement with refugee law, beginning in the early 1990s.231 In contrast to earlier times when there were few authoritative decisions on the content of refugee law, many state parties today have developed their own, often quite comprehensive, judicial understandings of many aspects of international refugee law.232 And where no domestic precedent exists, courts are increasingly (and appropriately) inclined to seek guidance from the jurisprudence of other state parties to the Convention.233 In this more mature legal environment, UNHCR’s views on the substance of refugee law – at least where these are not formally codified through the authoritative process of Executive Committee decision-making – will inevitably not be treated as uniquely pertinent,234 but will instead be considered and weighed as part of a more holistic assessment of the current state of refugee law obligations.235 230 231

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See text at note 219. Judges have certainly not treated UNHCR Guidelines as requiring a rethinking of domestic refugee law. In assessing the relevance of the Guidance Note on Refugee Claims Relating to Female Genital Mutilation (May 2009), a US appeals court noted that it was “doubtful whether this particular guidance note offers persuasive authority, as it appears to contradict the express terms of the [Immigration and Naturalization Act]”: Abou Kane v. Attorney General, 581 F. 3d 231 (US CA5, Aug. 26, 2009), at 242. The Irish High Court did not defer to UNHCR’s guidelines and statement of good practice on separated children, noting that they “are all useful and authoritative sources of guidance . . . But that is all that they are: guidelines. They have no force of law”: U and Another v. Minister for Justice, Equality, and Law Reform, [2010] IEHC 317 (Ir. HC, July 30, 2010), at [14]. For example, in his endorsement of giving weight to UNHCR advice, Justice Kirby observed that “[p]articularly is this so in the absence of clear national jurisprudence and relevant State practice”: MIMIA v. QAAH, [2006] HCA 53 (Aus. HC, Nov. 15, 2006), at [80], per Kirby J. See J. Hathaway, “A Forum for the Transnational Development of Refugee Law: The IARLJ’s Advanced Refugee Law Workshop,” (2003) 15(3) International Journal of Refugee Law 418. In a case involving exclusion under Art. 1(F)(c), for example, the English Court of Appeal declined to follow the approach of Guideline on International Protection No. 5 on the grounds that it did not align with the Court’s understanding of the approach adopted in relevant UN Security Council resolutions: Hany El-Sayed El-Sebaai Youssef v. Secretary of State for the Home Department, [2018] EWCA Civ 933 (Eng. CA, Apr. 26, 2018). “The purpose of this ‘holistic’ approach to understanding treaty provisions is to ‘enable a simultaneous consideration of the treaty text and valid extrinsic materials elucidating it’”: MIMIA v. QAAH, [2006] HCA 53 (Aus. HC, Nov. 15, 2006), at [75], per Kirby J. “Generally, commentaries and explanatory documents, such as the UNHCR Handbook on Procedures, are regarded as having persuasive value as aids to construing the treaty to which they relate”: McAdam, “1951 Convention,” at 112.

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But the maturation of judicial thinking on refugee law is not the only reason for the increasing reluctance to defer to the positions advanced in the Handbook. Sadly, the agency itself may have inadvertently contributed to this trend by issuing what the Court of Justice of the European Union described as “a plethora of documents”236 on the interpretation of refugee law that has made it increasingly difficult for even state parties committed to a strong UNHCR voice to discern the precise agency position on many key protection issues.237 Of particular note are the Department of International Protection’s “Guidelines on International Protection,”238 issued since 2002 under a process approved in only the most general terms by the UNHCR’s Executive Committee.239 While explicitly intended to be “complementary” to the 236

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“Opinion of Advocate General Mengozzi, delivered on 1 June 2010,” in the case of Germany v. B and D, Dec. Nos. C-57/09 and C-101/09 (CJEU, Nov. 9, 2010), at [43]. “In disagreeing with the interpretation put forward by the Office of the UNHCR, I am guided primarily by the clear text of the provision, which has not been amended in over 50 years. In contrast, it seems to me that the UNHCR’s reading has varied over time”: “Opinion of Advocate General Sharpston, delivered on 4 March 2010,” in the case of Bolbol v. Germany, Dec. No. C-31/09 (CJEU, June 17, 2010), at [76]. It is also noteworthy that despite the strong plea made by Kirby J. in dissent (at [81]), the majority of the High Court of Australia declined to draw on either the UNHCR Handbook or Guidelines in MIMIA v. QAAH, [2006] HCA 53 (Aus. HC, Nov. 15, 2006). As of January 2020, thirteen sets of Guidelines had been issued by UNHCR: UN Docs. HCR/GIP/02/01 (gender-related persecution); HCR/GIP/02/02 (membership of a particular social group); HCR/GIP/03/03 (cessation); HCR/GIP/03/04 (internal relocation alternative); HCR/GIP/03/05 (exclusion); HCR/GIP/04/06 (religion-based claims); HCR/GIP/06/07 (trafficking-based claims); HCR/GIP/09/08 (asylum claims by children); HCR/GIP/12/09 (claims based on sexual orientation or gender identity); HCR/GIP/13/10 (claims by conscientious objectors); HCR/GIP/15/11 (prima facie recognition of refugee status); HCR/GIP/16/12 (claims arising out of armed conflict or violence); and HCR/GIP/ 17/13 (exclusion of Palestinian refugees). Commentators have voiced various concerns about the Guidelines. Bailliet notes various process concerns, as well as the failure of early guidelines to take adequate account of a broad range of national jurisprudence (a concern largely addressed in the more recent Guidelines): C. Bailliet, “National Case Law as a Generator of International Refugee Law: Rectifying an Imbalance Within UNHCR Guidelines on International Protection,” (2015) 29 Emory International Law Review 2059, at 2063. Juss argues that the Guidelines have had insufficient impact due to “the UNHCR’s own reluctance to posit a definitive guide for the determination of refugee claims by states parties,” arguing the need for a UNHCR-authored “authoritative benchmark”: S. Juss, “The UNHCR Handbook and the Interface between ‘Soft Law’ and ‘Hard Law’ in International Refugee Law,” in S. Juss and C. Harvey eds., Contemporary Issues in Refugee Law 31 (2013), at 38–39. The latter position is at odds with the view advanced here: see text at note 250. At its fifty-third session, the UNHCR’s Executive Committee requested UNHCR “to produce complementary guidelines to its Handbook on Procedures and Criteria for Determining Refugee Status, drawing on applicable international legal standards, on State practice, on jurisprudence and using, as appropriate, the inputs from the debates in the Global Consultations’ expert roundtable discussions”: Executive Committee of the High Commissioner’s Program, “Agenda for Protection,” UN Doc. EC/52/SC/CRP.9/

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standards set out in the Handbook,240 the Guidelines at times conflict with the advice of the Handbook.241 Such conflicts have not gone unnoticed by courts. The Full Federal Court of Australia, for example, declined to follow the approach to criminal law exclusion recommended in the Handbook, preferring to adopt the tack endorsed in the UNHCR’s Global Consultations process and subsequently codified in a Guideline on International Protection.242 The Canadian Federal Court of Appeal relied upon the “less categorical” approach taken to the definition of a “manifestly unfounded claim” in UNHCR’s Global Consultations process to conclude that there is no international consensus on the meaning of this term – even though the

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Rev.1, June 26, 2002, at Part III, Goal 1, Point 6. The Executive Committee clearly did not intend that these guidelines should be the sole, or even the primary, means of advancing the development of refugee law, since it simultaneously agreed that the agency should “explore areas that would benefit from further standard-setting, such as [Executive Committee] Conclusions or other instruments to be identified at a later stage”: ibid. at Goal 1, Point 7. The Executive Committee has encouraged state parties to take account of guidelines on the subject of gender-based persecution and violence: see UNHCR Executive Committee Conclusions Nos. 98 (2003), 99 (2004), and 105 (2006). The Executive Committee has not, however, expressly endorsed other guidelines nor more generally promoted the guidelines initiative. Executive Committee of the High Commissioner’s Program, “Agenda for Protection,” UN Doc. EC/52/SC/CRP.9/Rev.1, June 26, 2002, at Part III, Goal 1, Point 6. For example, on the question of what has traditionally been referred to as the “internal flight alternative,” the Handbook directs attention to the retrospective question of whether the applicant “could have sought refuge in another part of the same country”: UNHCR, Handbook, at [91]. Yet in its “Guideline on International Protection: Internal Flight or Relocation Alternative,” UN Doc. HCR/GIP/03/04 – expressly said to be a “supplement” to the Handbook – UNHCR suggests that assessment should instead focus on “whether the proposed area provides a meaningful alternative in the future. The forward-looking assessment is all the more important”: ibid. at [8]. The point is not that the new standard is less appropriate than that set by the Handbook, but simply that the effort to promote inconsistent approaches will only engender confusion and lack of respect for UNHCR standard-setting. Adding to this concern, while the new Guidelines are in principle intended to “draw on” the expert advice received during the agency’s Global Consultations process (Executive Committee of the High Commissioner’s Program, “Agenda for Protection,” UN Doc. EC/52/SC/CRP.9/Rev.1, June 26, 2002, at Part III, Goal 1, Point 6), the Guidelines at times diverge from even the formal conclusions reached through that process. See e.g. J. Hathaway and M. Foster, “Membership of a Particular Social Group,” (2003) 15(3) International Journal of Refugee Law 477, at [44]. Yet in at least one case, an appellate court gave weight to the new Guidelines on the express grounds that “[t]hey . . . result from the Second Track of the Global Consultations on International Protection Process”: Minister for Immigration and Multicultural Affairs v. Applicant S, [2002] FCAFC 244 (Aus. FFC, Aug. 21, 2002). “By consensus, it was agreed [at the Lisbon Expert Roundtable of the Global Consultations] on the question of balancing [the risks of return against the seriousness of the crime committed] . . . [that] state practice indicates that the balancing test is no longer being used in common law and in some civil law jurisdictions”: NADB of 2001 v. Minister for Immigration and Multicultural Affairs, [2002] FCAFC 326 (Aus. FFC, Oct. 31, 2002).

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judgment acknowledged the existence of a formally adopted Executive Committee Conclusion directly on point, characterized by the Court as providing for a “restricted meaning” to be given to the notion.243 The Court of Justice of the European Union struggled to take account of UNHCR advice on the exclusion of Palestinians under Art. 1(D) given the shifting views of UNHCR as expressed in the Handbook, and in Notes issued in 2002 and 2009.244 And in addressing the propriety of the detention of refugees, the European Court of Human Rights rejected a UNHCR submission made in the case because the Court determined that it did not align with the agency’s own guidelines and the relevant Conclusion of the UNHCR Executive Committee.245 More generally, the New Zealand Court of Appeal declined to give significant weight to the new wave of UNHCR institutional positions because of their questionable legal pedigree: The Guidelines do not, however, have a status in relation to interpretation of the Refugee Convention that is equal to that of the resolutions of the UNHCR Executive Committee . . . I have focussed . . . on the Executive Committee’s views which in any event I regard as the most valuable guide for the Court.246

The English Court of Appeal has similarly opted to treat the agency’s guidelines as “perhaps not of the same persuasive authority as the UN Handbook.”247 These are reasonable positions since the Guidelines on International Protection are not issued by a governance body, but rather by agency staff. Indeed, the awkwardness of deferring to the views of UNHCR officials is exacerbated by the fact that the agency (sensibly and often with positive impact) has recently established a robust system of intervening before national and regional courts by way of both amicus curiae briefs, and often by actual appearance in court.248 With UNHCR increasingly assuming a direct 243

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Rahaman v. Minister of Citizenship and Immigration, 2002 ACWSJ Lexis 1026 (Can. FCA, Mar. 1, 2002). “Opinion of Advocate General Sharpston, delivered on 4 March 2010,” in the case of Bolbol v. Germany, Dec. No. C-31/09 (CJEU, June 17, 2010), at [17], [18], [20], [76]. Saadi v. United Kingdom, Dec. No. 13229/03 (ECtHR, Jan. 29, 2008), at [65]. Attorney General v. Refugee Council of New Zealand Inc., [2003] 2 NZLR 577 (NZ CA, Apr. 16, 2003), per McGrath J. at [111]. Justice Glazebrook gave the Guidelines somewhat greater weight, noting that “it is also appropriate to have regard to . . . the Guidelines . . . because the Immigration Service refers to them . . . and cannot be seen to ‘pick and choose’ the parts it wishes to comply with. It is also relevant that New Zealand will be judged in the light of those Guidelines by the Office of UNHCR in its monitoring role”: ibid. at [271]. Secretary of State for the Home Department v. MA (Somalia), [2018] EWCA Civ 994 (Eng. CA, May 2, 2018). UNHCR reports that it has intervened hundreds of times before national and regional courts and tribunals: www.refworld.org/type,AMICUS,,,,,0.html, accessed Jan. 15, 2020. As the agency notes, “[i]nterventions before courts by UNHCR and other organizations are an important tool through which protection standards can be developed and a consistent application of refugee law fostered. Interventions before courts may take

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advocacy role, judges may understandably feel some discomfort simultaneously treating the agency’s views as independent and authoritative,249 a concern heightened by the tendency of UNHCR interventions to draw largely on the agency’s own interpretive positions. We thus find ourselves at a moment of significant normative confusion on the appropriate source of UNHCR institutional advice on the substance of international refugee law. With the advent of experienced national and regional judiciaries that have developed their own understandings of refugee law, there is less willingness than in the past simply to defer to the didactic expositions found in the UNHCR’s Handbook and Guidelines. Judicial efforts to take account of UNHCR guidance are moreover complicated by the sheer volume of less-thanfully-consistent advice now emanating from the UNHCR, too often drafted at such a highly detailed level that its core content is difficult to discern. There is moreover understandable reticence to treat UNHCR published advice as authoritative when the agency itself often appears before courts to advocate particular views. This new environment may call for a reorientation of the way that UNHCR implements its critical responsibility to supervise the implementation of refugee law in state parties under Art. 35 of the Refugee Convention. Bolstering the advocacy capacity of the Department of International Protection may not only be an especially effective means to engage a judiciary with a mature understanding of refugee law,250 but is arguably a better fit than is standard-setting with the mandate set by the UNHCR’s Statute.251 In tandem with a greater

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different forms, depending on the national or supranational context, including formal amicus curiae briefs, advisory opinions or letters to the court or parties involved, as well as public statements”: ibid. Speaking to UNHCR risk assessments for refugee returns, the UK Upper Tribunal observed, “We find it difficult to overlook altogether the apparent conflict in UNHCR’s position in relation to risk on return to Iraq . . . Whilst . . . we continue to have unanswered questions as to how UNHCR can reconcile its ‘facilitation’ of voluntary returns with a position . . . that certain areas of Iraq are unsafe, we do not propose to treat that as a reason for attaching any less weight to its assessment of international protection needs”: HM (Iraq) and Others v. Secretary of State for the Home Department, [2012] UKUT 00409 (UK UT-IAC, Nov. 13, 2012), at [279], [281]. In the same context, the English Court of Appeal noted that “it was not inappropriate for the tribunal to comment on the potentially conflicting interests of the UNHCR, notwithstanding that they did not affect the standing of the report in this case. The UNHCR is responsible not merely for objectively assessing risk but also for returnees, and a court is entitled to be alive to the possibility that the latter function may possibly colour the risk assessment, even if only subconsciously”: HF (Iraq) and MK (Iraq) v. Secretary of State for the Home Department, [2013] EWCA Civ 1276 (Eng. CA, Oct. 13, 2013), at [58]. As the review conducted for UNHCR by Deschamp and Dowd attests, this advocacy role can also be an extremely effective means to bring relevant Conclusions of the Executive Committee to the attention of courts: Deschamp and Dowd, “Review,” at 15–16. The agency’s core mandate is the implementation of protection: Statute of the Office of the United Nations High Commissioner for Refugees, UNGA Res. 428, Dec. 14, 1950, at Arts. 8–9.

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emphasis on such interventions, UNHCR should reconsider its approach to advising on governing interpretive principles of refugee law, shifting to the adoption of meaningful guidance at a level of generality capable of adaptation and application across a range of states, and codified in a form that state parties are required to take seriously under the Vienna Convention – namely as formal, and clearly authoritative, resolutions of the UNHCR’s Executive Committee. To stimulate both Executive Committee and judicial engagement, UNHCR staff should be encouraged to draw on their expertise to offer preliminary thinking on how best to approach novel or complex protection questions. But preliminary thinking should be presented as such, guiding rather than determining the evolution of a clear and principled consensus in both the work of the Executive Committee and in the jurisprudence of state parties.

1.5.3 Regional Refugee Rights Regimes Three regional organizations – the African Union, the European Union, and the Organization of American States – administer legally binding regimes for the protection of refugees. In the Arab world, a legally binding system for refugee protection is open for adoption, but has not yet entered into force. Southeast Asia has no legally binding system, but there is nonetheless a modest political framework within which some refugee protection concerns are acknowledged at the level of principle. In general terms, the regional refugee law regimes share two main characteristics. First, all of the regional regimes are designed to supplement rather than to supplant the UN’s Refugee Convention. They have in particular sought to expand the beneficiary class either by promoting a liberal understanding of refugee status252 or by establishing a cognate 252

This is the approach adopted in the Convention Governing the Specific Aspects of Refugee Problems in Africa, 1001 UNTS 45 (UNTS 14691), adopted Sept. 10, 1969, entered into force June 20, 1974 (“AU Refugee Convention”), in which the refugee definition has been broadened to include inter alia a person “who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave”: ibid. at Art. I(2). But the same Convention also provides for the exclusion from protected status of any person who “has seriously infringed the purposes and objectives of this [AU] Convention” (ibid. at Art. I(4) (g)), a provision that is illegal to the extent it excludes persons for reasons not foreseen by the UN Refugee Convention, the refugee definition of which cannot be varied by any state: Refugee Convention, at Art. 42(1). Similarly, the League of Arab States’ Arab Convention on Regulating Status of Refugees in Arab Countries, adopted 1994 (“Arab Refugee Convention”), defines a refugee as including a Convention refugee and also “[a]ny person who unwillingly takes refuge in a country other than his country of origin or his habitual place of residence because of sustained aggression against, occupation and foreign domination of such country or because of the occurrence of natural disasters or grave events resulting in major disruption of public order in the whole country or any part thereof”

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protected class253 – typically including some or all persons fleeing war or generalized violence (and who will not in all cases meet the requirements of the Convention’s nexus clause).254 Second, and the focus of this study, these regional refugee regimes normally affirm the catalog of refugee rights set by the Refugee Convention. In some cases the regional systems actually expand the scope of refugee rights, while in other contexts – and despite the formal commitment of all regional refugee regimes to honor the requirements of the Convention – some regional norms or approaches are at odds with the rights set by international refugee law. As such, the contribution of regional refugee systems to the promotion of refugee rights is decidedly mixed.

1.5.3.1 African Union The first regional system, established by the Convention Governing the Specific Aspects of Refugee Problems in Africa,255 adopted by the Organization of African Unity (which has now been succeeded by the African Union),256 both recognizes that the UN’s Refugee Convention “constitutes the basic and

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(though notably this treaty also purports to omit “political opinion” as a ground for refugee status): Arab Refugee Convention, at Art. 1(2). There is also an expanded refugee definition under the non-binding OAS Cartagena Declaration, OAS Doc. OEA/Ser.L/II.66, Rev.1, at 190–193 (“OAS Cartagena Declaration”), which recommends that “the definition or concept of a refugee to be recommended for use in the region is one which, in addition to containing the elements of the 1951 Convention and the 1967 Protocol, includes among refugees persons who have fled their country because their lives, safety or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order”: ibid. at Art. III(3). It has been suggested that referring to such notions as an expanded definition “is not correct” because they “change[] the focus of analysis . . . from the individual to . . . the objective situation in the country of origin”: F. Piovesan and L. Jubilut, “Regional Developments: Americas,” in A. Zimmermann ed., The 1951 Convention relating to the Status of Refugees and its 1967 Protocol (2011) 205, at 219. This may, however, be a distinction without a difference since a class-based rather than individuated definition remains a definition; indeed class-based definitions of refugee status were the norm in the earliest refugee treaties: Hathaway, “Evolution of Refugee Status”. In contrast to other regional systems, the EU has adopted a distinct “subsidiary protection status” which requires a showing of a risk of “[s]erious harm consist[ing] of: (a) the death penalty or execution; or (b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or (c) serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict”: Directive on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted, Doc. 2011/95/EU, Dec. 13, 2011 (“EU Qualification Directive”), at Art. 15. See generally Hathaway and Foster, Refugee Status, at 390–394. AU Refugee Convention, adopted Sept. 10, 1969, entered into force June 20, 1974. On May 26, 2001, the Organization of African Unity (OAU) was legally transformed into the African Union (AU): Constitutive Act of the African Union, adopted July 11, 2000, at

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universal instrument relating to the status of refugees”257 and provides specifically that the AU Convention is “the effective regional complement in Africa of the 1951 United Nations Convention on the Status of Refugees.”258 The AU Refugee Convention helpfully elaborates or confirms a number of rights implicit in the Refugee Convention – for example, the right to claim asylum,259 to protection from refoulement when at the border,260 and not to be forcibly repatriated while refugee status persists.261 The AU Refugee Convention goes beyond global norms by making the duty of non-refoulement an unqualified obligation, lacking the equivalent of Art. 33(2) of the Refugee Convention that permits the refoulement of refugees who present national security concerns or

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Art. 33(1). References to the OAU in the treaty must therefore now be read as referring to the AU. AU Refugee Convention, Preamble, at [9]. Ibid. at Art. VIII(2). See generally M. Sharpe, The Regional Law of Refugee Protection in Africa (2018) (Sharpe, Africa), at chapter 4. “Member States of the OAU shall use their best endeavours consistent with their respective legislation to receive refugees and to secure the settlement of those refugees who, for well-founded reasons, are unable or unwilling to return to their country of origin or nationality”: AU Refugee Convention, at Art. II(1). Given both the “best endeavours” language and qualification by reference to national legislation, it surely overstates the case to argue that this really amounts to an explicit right to asylum: but see G. Okoth-Obbo, “Thirty Years On: A Legal Review of the 1969 OAU Refugee Convention Governing the Specific Aspects of the Refugee Convention in Africa,” (2001) 20(1) Refugee Survey Quarterly 79, at 88; and J. Oloka Onyango, “Plugging the Holes: Refugees, OAU Policy and the Practice of Member States,” (1986) USC Issue Brief, at 7. Sharpe takes the view that while the AU Refugee Convention leaves the discretion to grant asylum to states, “it nevertheless significantly ‘strengthens the institution of asylum’ [inter alia] by providing [that] ‘Member States . . . shall use their best endeavours consistent with their respective legislations to receive refugees’”: Sharpe, Africa, at 71. Overall, Art. II(1) is best described as “a quasi right to asylum”: A. Abass and D. Mystris, “The African Union Legal Framework for Protecting Asylum Seekers,” in A. Abass and F. Ippolito eds., Regional Approaches to the Protection of Asylum Seekers: An International Law Perspective (2016) 19 (Abass and Mystris, “AU Legal Framework”), at 23. The duty of non-refoulement is explicitly recognized to prohibit “rejection at the frontier,” and to apply whenever there is a risk to the refugee’s “life, physical integrity, or liberty”: AU Refugee Convention, at Art. II(3). See generally Sharpe, Africa, at 72–76. AU Refugee Convention, at Art. V. While it has been suggested that this article “contains another distinctive right in making provision for voluntary repatriation” ( G. Naldi and C. D’Orsi, “The Role of the African Human Rights System with Reference to Asylum Seekers,” in A. Abass and F. Ippolito eds., Regional Approaches to the Protection of Asylum Seekers: An International Law Perspective (2016) 45, at 61), there is really nothing substantively novel here. Repatriation under the AU Refugee Convention need only be “voluntary” so long as the person in question remains a “refugee.” This is consistent with the Refugee Convention, Arts. 1(C)(4) and 33. If and when refugee status is lost, including by a fundamental change of circumstances in the country of origin (AU Refugee Convention, Art. I(4)(e)), then repatriation need not be voluntary, though it must of course be conducted in a rights-regarding way: see Chapter 7.1.

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risks to public safety.262 The African treaty sets duties for a refugee’s home country not to penalize refugees who choose to return,263 and affirmatively to facilitate their reintegration.264 It also sets a more inclusive understanding of the duty not to discriminate among refugees than does the Refugee Convention, adding “membership of a particular social group or political opinions” to the Convention’s list of grounds on which discrimination is prohibited.265 More generally, the AU Refugee Convention is in practice regularly invoked by the African Commission on Human and Peoples’ Rights,266 and may be interpreted and applied by the African Court on Human and Peoples’ Rights.267 262

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AU Refugee Convention, at Art. II(3). See G. Abi-Saab, “The Admission and Expulsion of Refugees with Special Reference to Africa,” (2000) 8 African Yearbook of International Law 71, at 90; and Chapter 4.1.4. AU Refugee Convention, at Art. V(4). 264 Ibid. at Art. V(2) and (5). Ibid. at Art. IV. It is curious that this provision replaces the Refugee Convention’s guarantee against discrimination based on “country of origin” with a prohibition of discrimination based on “nationality.” While this might raise the concern that the AU Refugee Convention fails to prohibit discrimination against stateless refugees coming from a particular country of former habitual residence, this possibility is foreclosed by modern understandings of statelessness as a form of nationality: see Hathaway and Foster, Refugee Status, at 397–399. On a more positive note, African regional human rights law requires that children entitled to refugee protection shall “receive appropriate protection and humanitarian assistance in the enjoyment of the rights set out in this Charter and other international human rights and humanitarian instruments to which the States are Parties” and specifically that “[w]here no parents, legal guardians or close relatives can be found, the child shall be accorded the same protection as any other child permanently or temporarily deprived of his family environment for any reason”: African Charter on the Rights and Welfare of the Child, OAU Doc. CAB/LEG/24.9/49 (1990), at Art. 23. Some commentators argue that at least from 2010, the African Commission on Human and Peoples’ Rights was empowered “to monitor States’ compliance with the [AU] Refugee Convention and to encourage States to implement the [AU] Refugee Convention in domestic law”: J. van Garderen and J. Ebenstein, “Regional Developments: Africa,” in A. Zimmermann ed., The 1951 Convention relating to the Status of Refugees and its 1967 Protocol (2011) 185 (van Garderen and Ebenstein, “Africa”), at 201. Yet as Sharpe points out, “[t]he authors do not specify what AU organ endowed the Commission with this mandate, nor do they cite any other legal basis for it”: M. Sharpe, “The Supervision (or Not) of the 1969 OAU Refugee Convention,” (2019) 31(2/3) International Journal of Refugee Law 261 (Sharpe, “Supervision”), at 270. While it is true that Art. VII of the AU Refugee Convention requires state parties “to make reports to the competent [AU] organs,” Sharpe correctly notes that this is a “stand-alone provision; it does not follow from any preceding paragraph endowing the [AU] with a supervisory duty in relation to the 1969 Convention”: ibid. at 275. Protocol, Art. 3(1), Rule of Court 26(1)(a), in force June 2, 2010. “There was originally no regional mechanism tasked with implementation and enforcement, albeit this has changed with the [African Court on Human and Peoples’ Rights] mandate being extended to cover the 1969 OAU Convention”: Abass and Mystris, “AU Legal Framework,” at 26. More precisely, the Court’s jurisdiction stems from its right to hear contentious cases regarding any instrument ratified by the states concerned (which would include the AU Refugee Convention). The challenge, however, is that individuals (including refugees) can only bring a complaint to the Court against one of the nine countries that has authorized individual standing. Most promising therefore is the right of the Court to issue advisory

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On the other hand, the AU Refugee Convention’s promise of enabling a “better life and future”268 for refugees runs up against what seems to be an equally strong concern to avoid “friction among . . . Member States.”269 States must “prohibit” refugees from “attacking” another AU state or engaging in “subversive activities” including by way of expression “through the press, or by radio”270 – a far-reaching rule that appears difficult to reconcile with the more restrained approach of Art. 19 of the Civil and Political Covenant.271 States are similarly required “for security reasons” to endeavor to “settle refugees at a reasonable distance from the frontier of their country of origin”272 – a potentially problematic provision since, while asylum states can and should assist refugees to live in places of safety, mandatory settlement schemes directed at refugees are in breach of the requirements of Art. 26 of the Refugee Convention which grants refugees the right to choose their own place of residence.273 The AU Refugee Convention also purports to authorize the issuance of “one-way” travel documents when a refugee is sent to another AU asylum country,274 a practice at odds with the presumptive duty under the Refugee Convention to readmit refugees holding a travel document.275 Concerns such as these have led commentators to characterize the AU refugee system as unduly focused on containment276 and repatriation.277

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opinions at the request even of an African NGO enjoying AU observer status: Sharpe, “Supervision,” at 278. AU Refugee Convention, Preamble, at [1]. 269 Ibid., Preamble, at [3]. Ibid. at Art. III(2). See Chapter 6.5 and Sharpe, Africa, at 145–148. More generally, it has been suggested that this Article’s prohibition of “subversive activities” is legally vulnerable on the grounds that it “limits refugees’ right to freedom of expression and contradicts the rights enshrined in the [African Convention on Human and Peoples’ Rights]”: van Garderen and Ebenstein, “Africa,” at 193. AU Refugee Convention, at Art. II(6). Refugee Convention, at Art. 26. See Chapter 5.2 and Sharpe, Africa, at 116–118. AU Refugee Convention, at Art. VI. This provision largely mirrors Art. 28 of the Refugee Convention, though it adds the qualification that “[w]here an African country of second asylum accepts a refugee from a country of first asylum, the country of first asylum may be dispensed from issuing a document with a return clause”: ibid. at Art. VI(2). At most, “in exceptional cases” the right to return can be limited to not less than three months: Refugee Convention, Schedule, at [13.3]. See generally Chapter 6.6 at note 1148. Abass and Mystris, “AU Legal Framework,” at 22. Van Garderen and Ebenstein, “Africa,” at 189. “While the OAU preferred local integration during the 1960s and 1970s, in more recent years a shift has occurred to promote voluntary repatriation as the most appropriate solution to Africa’s problems”: ibid. at 194. See also B. Rutinwa, “The End of Asylum: The Changing Nature of Refugee Policies in Africa,”(2002) 21 Refugee Survey Quarterly 12. In truth, much of the repatriation practice in Africa is not voluntary in any meaningful sense: see C. D’Orsi, Asylum Seeker and Refugee Protection in Sub-Saharan Africa: The Peregrination of a Persecuted Human Being in Search of a Safe Haven (2015), at 271; see generally Chapter 4.1.

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1.5.3.2 European Union The European Union’s regional refugee protection system, the Common European Asylum System,278 is anchored by Art. 18 of the Charter of Fundamental Rights of the European Union (the “EU Charter”) which provides that “[t]he right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 . . .”279 The European Union’s more specific enactments – on qualification for refugee and subsidiary protection status (the “EU Qualification Directive”),280 on responding to large movements of refugees (the “EU Temporary Protection Directive”),281 on the assignment of protective responsibility as among member states (the “EU Dublin Regulation”),282 on the rights that inhere in persons seeking protection (the “EU Reception Directive”),283 and setting procedural guarantees for the process of assessing refugee status (the “EU Procedures Directive”)284 – reflect a comparable commitment to respect for international refugee law.285 The Qualification 278

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“A treaty basis for an EU asylum policy was only established with the Treaty of Amsterdam . . . in 1997. This instrument [in Art. 63] called for the development of common minimum standards in all key areas of asylum law within a timeframe of 5 years . . . It also confirmed that all measures adopted must comply with international human rights and refugee law, and it established the jurisdiction of the [Court of Justice of the European Union] over asylum”: A. Klug, “Regional Developments: Europe,” in A. Zimmermann ed., The 1951 Convention relating to the Status of Refugees and its 1967 Protocol (2011) 119 (Klug, “Europe”), at 128. See also P. Mathew and T. Harley, Refugees, Regionalism, and Responsibility (2016) (Mathew and Harley, Refugees, Regionalism), at 36–37. The Charter of Fundamental Rights of the European Union, OJ 2012 C326/02, Dec. 7, 2000 (“EU Charter”), at Art. 18. Directive on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted, Doc. 2011/ 95/EU, Dec. 13, 2011 (“EU Qualification Directive”). Directive 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, Doc. 2001/55/EC, July 20, 2001 (“EU Temporary Protection Directive”). Regulation establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person, Doc. 604/2013, June 26, 2013 (“EU Dublin Regulation”). Directive laying down standards for the reception of applicants for international protection, Doc. 2013/33/EU, June 26, 2013 (“EU Reception Directive”). Directive on common procedures for granting and withdrawing international protection, Doc. 2013/32/EU, June 26, 2013 (“EU Procedures Directive”). “It is generally accepted that the rights enshrined in the 1951 [Refugee] Convention and its 1967 Protocol . . . form part of [the] body of fundamental rights and are considered to be general principles of EU law. Within asylum and migration law, the Treaty of Amsterdam established an obligation for secondary legislation to comply with the 1951 [Refugee]

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Directive, for example, notes that “[t]he Geneva Convention and the Protocol provide the cornerstone of the international legal regime for the protection of refugees,”286 and provides that the content of protection defined therein shall be “without prejudice to the rights laid down in the Geneva Convention.”287 While the Court of Justice of the European Union, which oversees the regional refugee regime,288 is not specifically entitled to interpret or apply international refugee law,289 it has nonetheless routinely affirmed “that the Geneva Convention constitutes the cornerstone of the international legal regime for the protection of refugees,”290 and that EU directives must therefore “be interpreted . . . in a manner consistent with the Geneva Convention.”291 The European approach to the elaboration of refugee rights292 is significantly more detailed than that of the African Union, though – like the African

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Convention. The new [Treaty on the Functioning of the European Union] contains a similar provision [in Article 78]”: Klug, “Europe,” at 135. See also F. Ippolito, “Establishing the Common European Asylum System: ‘It’s a Long Way to Tipperary,’” in A. Abass and F. Ippolito eds., Regional Approaches to the Protection of Asylum Seekers: An International Law Perspective 113 (2016) (Ippolito, “Long Way to Tipperary”), at 116. EU Qualification Directive, Preamble, at [4]. Ibid. at Art. 20(1). A draft recast of the EU Reception Directive proposes an acknowledgment that the “Common European Asylum System (CEAS), which is based on the full and inclusive application of the Geneva Convention Relating to the Status of Refugees of 28 July 1951, as supplemented by the New York Protocol of 31 January 1967, is a constituent part of the European Union’s objective of progressively establishing an area of freedom, security and justice open to those who, forced by circumstances, legitimately seek protection in the Union”: Proposal for a Directive of the European Parliament and of the Council laying down standards for the reception of applicants for international protection (recast), Doc. COM(2016) 465 final, July 13, 2016 (“Draft Recast of EU Reception Directive”). Treaty Establishing the European Community, Doc. 2002/C 325.01, Dec. 24, 2002, at Art. 68. The Court declined to interpret Art. 31 of the Refugee Convention on the grounds that there was no clear adoption of this provision into European Union law, thus depriving the Court of jurisdiction: Dec. No. C-481/13 (CJEU, July 17, 2014), at [25]. As Bank observes, “despite the exceptionally strong role accorded to the 1951 Convention and other relevant treaties, the practical role accorded to international refugee law in the judgments of the CJEU is rather marginal”: R. Bank, “The Potential and Limitations of the Court of Justice of the European Union in Shaping International Refugee Law,” (2015) 27(2) International Journal of Refugee Law 213, at 224–225. Kreis Warendorf v. Ibrahim Alo and Amira Osso v. Region Hannover, Dec. Nos. C-443/14 and C-444/14 (CJEU, Mar. 1, 2016), at [28]. Ibid. at [29]. This does not mean, however, that the Refugee Convention is itself directly enforceable as a matter of European Union law: MIF v. International Protection Appeals Tribunal, [2018] IECA 36 (Ir. CA, Feb. 19, 2018), at [27]. The Common European Asylum System comprises an amalgam of primary and secondary legislation. In general terms, as Klug observes, “[t]he 1999 Tampere Conclusions, which emphasized ‘the absolute respect for the right to seek asylum, full and inclusive application of the 1951 Convention,’ brought a welcome shift in emphasis and complemented the control-driven approach to asylum policies with protection objectives. Nevertheless, the

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system – the European regime does not fully codify all refugee rights as matters of binding EU law.293 And while in most cases the rights that are included mirror those set by the Refugee Convention, there are instances in which European norms are both more and less generous than international refugee law requires.294 On the negative side of the refugee rights ledger, the right to undertake selfemployment295 is delayed longer than the Refugee Convention allows. The freedom of movement of persons undergoing refugee status assessment is subject to impermissible limitations,296 and the right of refugees lawfully in a state party’s territory to choose their own place of residence is not

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EU’s asylum policy has never lost its close connection with immigration control objectives or the notion of what is referred to by critics as a ‘fortress Europe’”: Klug, “Europe,” at 128. Of particular concern, EU asylum law fails to incorporate the duty not to penalize refugees for unlawful entry or presence set by Art. 31: Qurbani v. Germany, Dec. No. C-481/13 (CJEU, July 17, 2014), at [24]. Among the other Refugee Convention rights with no explicit parallel in the EU asylum regime are Arts. 2–15, 29, 30, and 34. In some instances, of course, relevant protections may be advanced under general human rights norms. Yet as Klug notes, “unlike the 1951 [Refugee] Convention, the [European Convention on Human Rights] does not provide any guidance on the specific legal questions that arise in a refugee context, such as determining the laws that govern a refugee’s personal status or how to proceed if the refugee cannot obtain documentation on his or her family’s civil status or his or her education and degrees”: Klug, “Europe,” at 124. “Despite this clear policy objective and legal obligations, the asylum instruments adopted during the first phase of the EU harmonization process do not fully comply with international or regional human rights and refugee law”: Klug, “Europe,” at 136. Nor did the second phase leading to the 2011 recast of the EU Qualification Directive fully align EU law with the refugee rights regime: S. Peers, “The Second Phase of the Common European Asylum System: A Brave New World – or Lipstick on a Pig?,” Statewatch Analysis, Apr. 8, 2013 (Peers, “Second Phase”), at 16; Mathew and Harley, Refugees, Regionalism, at 194–198. Only a “beneficiar[y] of international protection,” defined as “a person who has been granted refugee status,” is entitled to engage in self-employment: EU Qualification Directive, at Arts. 18 and 2(b). Even if self-employment is considered an aspect of “access to the labour market” and hence regulated by Art. 15(1) of the EU Reception Directive, the right to self-employment may still be delayed for up to nine months from the date on which the protection application is lodged. In contrast, the Refugee Convention requires access to self-employment for those merely lawfully present, even if not yet lawfully staying, and hence must be granted as of the time when the applicant is admitted to a status determination procedure: see Chapters 5.3 and 3.1.3. Persons undergoing refugee status assessment may be “assigned” to an area for a variety of reasons not authorized by the Refugee Convention, including “public interest” and “for the swift processing and effective monitoring of his or her application for international protection”: EU Reception Directive, at Art. 7(1)–(2). An additional proposed reason for assignment – “for the swift processing and effective monitoring of his or her procedure for determining the Member State responsible” (Draft Recast of EU Reception Directive) would also be outside the bounds of what is allowed by the Refugee Convention. It is moreover of concern that the EU standard does not condition constraints on freedom of movement on a showing of necessity as Art. 31(2) of the Refugee Convention requires. See Chapter 4.2.4.

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respected.297 The right to access education is both substantively insufficient and inappropriately delayed.298 EU asylum law also discriminates on the prohibited basis of “country of origin,” peremptorily refusing to permit the recognition of any EU national as a refugee.299 An especially egregious provision, which the European Commission has suggested should be amended,300 authorizes the reduction or withdrawal of many refugee rights if a refugee fails to abide by EU asylum rules – including, for example, if she were to refuse to honor an (internationally unlawful) rule confining her to a particular part of the country.301 And perhaps of greatest concern, the European system for the allocation of asylum responsibility has forced refugees into inadequate national asylum systems without regard for the requirements of the Refugee Convention.302 While the 297

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Freedom of movement, but not choice of residence, is guaranteed under EU asylum law: EU Qualification Directive, at Art. 33. But see Chapter 5.2. There is a duty to “grant to minor children of applicants and to applicants who are minors access to the education system under similar conditions as their own nationals for so long as an expulsion measure against them or their parents is not actually enforced. Such education may be provided in accommodation centres”: EU Reception Directive, at Art. 14(1). In contrast, the Refugee Convention requires that refugees receive “the same treatment as is accorded to nationals with respect to elementary education” – not “similar,” and not segregated: see Chapter 4.8. More generally, while EU law provides that States “shall grant full access to the education system to all minors granted international protection,” the definition of a “beneficiar[y] of international protection” is limited to “a person who has been granted refugee status”: EU Qualification Directive, at Arts. 27 and 2(b). Under Art. 22 of the Refugee Convention, in contrast, all refugees – whether or not already formally recognized as such – must be granted access to elementary education: see Chapters 4.8 and 3.1.1. “The heavily criticized Protocol No. 29 [on Asylum for Nationals of Member States of the European Union, Dec. 29, 2006, OJ 2006 C321 E, at 306–307] (the so-called ‘Aznar Protocol’), adopted as a result of pressure from the Spanish government following the recognition of ETA terrorists in France, restricts the right to asylum to third country nationals. As a consequence, the asylum claims of EU nationals are to be treated as manifestly unfounded. Furthermore, EU nationals are excluded from the scope of all EU asylum instruments”: Klug, “Europe,” at 129. As Mathew and Harley observe, “[i]t is assumed that all EU countries are safe countries of origin, which is demonstrably untrue. Roma, who are theoretically EU citizens, face many forms of discrimination and even persecution. Theoretically, EU citizens could just exercise their freedom of movement rights within the EU to escape persecution, but in addition to the many barriers to Roma exercising those freedoms, there have been disturbing mass expulsions of Roma from a number of EU states, which highlights the importance of refugee status for those Roma facing persecution”: Mathew and Harley, Refugees, Regionalism, at 38. It is proposed that any reduction or withdrawal “should in all circumstances ensure access to health care and a dignified standard of living for applicants”: Draft Recast of EU Reception Directive. EU Reception Directive, at Art. 20(1). The rights that may be reduced or withdrawn include “housing, food and clothing provided in kind, or as financial allowances or in vouchers, or a combination of the three, and a daily expenses allowance”: ibid. at Art. 2(g). EU Dublin Regulation, at Art. 3. The international legal requirements for requiring a refugee to accept protection in a state not of his or her choosing are discussed in Hathaway and Foster, Refugee Status, at 30–49.

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European Court of Human Rights quickly intervened to constrain this authority,303 the Court of Justice of the European Union has been inconsistent in defining the litmus test to refuse a transfer of responsibility – first suggesting that there would need to be a finding of “systemic deficiencies” in the destination country’s asylum system,304 then recanting that view305 in the face of principled resistance to it.306 Conversely there are areas in which the European Union offers more generous protection than international refugee law requires. Access to wage-earning employment and the liberal professions is granted even to those not yet recognized as refugees,307 elaborate provisions on material assistance go significantly beyond the bare bones approach of the Refugee Convention,308 and refugee travel documents are more readily available than the Convention requires.309 303 304

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See e.g. MSS v. Belgium and Greece, Dec. No. 30696/09 (ECtHR, Jan. 21, 2011). NS v. Secretary of State for the Home Department, Dec. Nos. C-411/10 and C-493/10 (CJEU, Dec. 21, 2011), at [94]. “The . . . argument that . . . only the existence of systemic flaws in the Member State responsible is capable of affecting the obligation to transfer an asylum seeker to that Member State is unfounded”: CK v. Slovenia, Dec. No. C-578/16 PPU (CJEU, Feb. 16, 2017), at [91]. In the same case, the Court clarified that states must implement Dublin Regulation obligations with regard to the requirements of the EU Charter, taking account for example of the duty to avoid inhuman or degrading treatment – meaning for example that there is a duty to suspend a transfer if critical health considerations so require. As correctly observed by the Supreme Court of the United Kingdom, “[t]he presumption [of partner state respect for refugee rights] should not operate to stifle the presentation and consideration of evidence . . . [regarding] the consequences of enforced concern. Nor should it be required that, in order to rebut it, it must be shown, as a first and indispensable requirement, that there is a systemic deficiency in the procedure and reception conditions provided for the asylum seeker”: R (EM, Eritrea) v. Secretary of State for the Home Department, [2014] UKSC 12 (UK SC, Feb. 19, 2014), at [41]. See generally Hathaway and Foster, Refugee Status, at 39–49. EU Reception Directive, at Art. 15. “[T]he labour market . . . must now be opened to asylum seekers no later than nine months (instead of the original 12 months) after the [asylum] application [is] lodged. Whereas the Commission and the European Parliament proposed a six-month period, this provision of the [Reception] Directive improves access to the labour market compared to the 2003 [version of the Reception] Directive”: Ippolito, “Long Way to Tipperary,” at 137. EU Qualification Directive, at Art. 30; EU Temporary Protection Directive, at Art. 13; EU Reception Directive, at Arts. 17–19. “The Reception Directive . . . obliges all Member States to offer basic reception arrangements to asylum seekers, including those Member States that previously offered limited or non-functioning arrangements. However, its standards remain minimal”: Klug, “Europe,” at 134. Yet “the revised [Reception] Directive . . . expressly permits asylum-seekers to be treated less generously than a Member State’s own citizens”: Peers, “Second Phase,” at 4. All “beneficiaries of refugee status,” rather than simply those who are “lawfully staying” as the Refugee Convention requires, are entitled to a Convention Travel Document: EU Qualification Directive, at Art. 25. See also EU Reception Directive at Art. 6(5), authorizing states to issue travel documents for humanitarian reasons to persons whose refugee status has not yet been verified. It has been proposed, however, that governments “should

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There are also European asylum rules that enhance protection in ways not addressed by the Refugee Convention at all, including on access to asylum,310 procedures for the assessment of refugee status,311 conditions of detention,312 access to information,313 family unity,314 the granting of residence permits,315 access to integration assistance,316 and the prohibition of collective expulsion.317 The EU has moreover explicitly granted nearly all refugee rights to non-refugees who are the beneficiaries of its broader class of persons entitled to subsidiary protection.318

1.5.3.3 Organization of American States The third regional refugee law system is more diffuse than either the African or European model. Regional initiatives sponsored by the Organization of American States have drawn their strength from a non-binding regional standard, the Cartagena Declaration of 1984,319 recommended to states in the Americas by the General Assembly of the Organization of American States.320

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only provide applicants with a travel document when serious humanitarian or other imperative reasons arise. The validity of travel documents should also be limited to the purpose and duration needed for the reason for which they are issued”: Draft Recast of EU Reception Directive. Most critical is the EU Charter, at Art. 18. “The EU Charter . . . is generally understood to reaffirm existing fundamental rights . . . [But] [d]espite its unclear wording and divergence in official language versions, a number of arguments support the interpretation that Art. 18 . . . establishes an individual right which can be directly invoked before the national courts of Member States”: Klug, “Europe,” at 129–130. See also EU Qualification Directive, Preamble, at [16], and at Art. 13; EU Dublin Regulation, at Art. 3(1); EU Procedures Directive, at Art. 6. EU Procedures Directive. “The Procedures Directive includes a number of important procedural guarantees which include, inter alia, the right to provisional residence for asylum seekers, the prohibition of time limits for submission of asylum applications, the necessity to provide reasons for rejections in writing, the right to legal aid, and the right to an effective remedy against negative decisions. However, these rights are accompanied by limitations and broad derogations”: Klug, “Europe,” at 134–135. EU Reception Directive, at Arts. 9–11. 313 EU Qualification Directive, at Art. 22. Ibid. at Art. 23; EU Temporary Protection Directive, at Art. 15; EU Dublin Regulation, at Arts. 9–10. The Family Reunification Directive, EC Directive 2003/86, Sept. 22, 2003, OJ 2003 L251, also applies to refugees, enabling them for example to avoid some of the restrictions normally imposed on migrants seeking visas for family members. EU Qualification Directive, at Art. 24. Ibid. at Art. 34. See Ippolito, “Long Way to Tipperary,” at 118. EU Charter, at Art. 19(1). The only remaining disparities “concern the rights to residence permits for beneficiaries of international protection and their families (for ‘less than 3 years’ for beneficiaries of subsidiary protection and for ‘at least 3 years’ for refugees) and social welfare (limited to core benefits for beneficiaries of subsidiary protection)”: Ippolito, “Long Way to Tipperary,” at 118–119. OAS Doc. OEA/Ser. L/II.66, Doc.10, Rev.1, at 190–193 (“OAS Cartagena Declaration”). UNHCR, “OAS General Assembly: An Inter-American Initiative on Refugees,” (1986) 27 Refugees 5.

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The Cartagena Declaration contains a commitment to “ensur[ing] that the national laws and regulations adopted reflect the principles and criteria of the Convention and the Protocol.”321 This informal process is coupled with a more formally binding duty to protect refugees arising from the right to asylum codified in regional human rights law, interpreted in a dynamic way that links regional human rights norms directly to the commitments made by states under the Refugee Convention.322 The OAS Cartagena Declaration contains a general recital requiring respect for refugee rights in line with Refugee Convention norms, though recognizing the flexibility that the UNHCR’s Executive Committee has authorized when a state seeks to cope with a mass influx of refugees.323 Rather than seeking to expand refugee rights, the Cartagena Declaration reiterates and clarifies the import of a number of key Refugee Convention rights. For example, it takes a strong stand on both the peremptory character of the duty of non-refoulement324 and on the right of refugees not to be involuntarily repatriated325 or expelled even to safe 321 322

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OAS Cartagena Declaration, at Art. III(1). The Inter-American Court of Human Rights has jurisdiction to interpret and apply Art. 22(7) of the American Convention on Human Rights, which codifies the right of “[e]very person . . . to seek and be granted asylum in a foreign territory, in accordance with the legislation of the state and international conventions, in the event he is being pursued for political offenses or related common crimes”: American Convention on Human Rights, 1144 UNTS 123 (UNTS 17955), adopted at the Inter-American Specialized Conference on Human Rights, San José, Costa Rica, November 22, 1969, entered into force July 18, 1978 (“American Convention”). In OAS states that have not adopted the American Convention, the Inter-American Commission on Human Rights is entitled to scrutinize laws and practices by reference to the American Declaration of the Rights and Duties of Man, Art. XXVII of which provides that “[e]very person has the right, in case of pursuit not resulting from ordinary crimes, to seek and receive asylum in foreign territory, in accordance with the laws of each country and with international agreements”: American Declaration of the Rights and Duties of Man, adopted by the Ninth International Conference of American States, Bogotá, Colombia, 1948 (“American Declaration”). See generally L. Jubilut, M. Vera Espinoza, and G. Mezzanotti eds., Latin America and Refugee Protection: Regimes, Logics and Challenges (forthcoming 2021). States commit themselves “[t]o ensure that the countries of the region establish a minimum standard of treatment for refugees, on the basis of the provisions of the 1951 Convention and 1967 Protocol and of the American Convention on Human Rights, taking into consideration the conclusions of the UNHCR Executive Committee, particularly No. 22 on the Protection of Asylum Seekers in Situations of Large-Scale Influx”: OAS Cartagena Declaration, at Art. III(8). Ibid. at Arts. II(f) and III(5). It is noteworthy that the formulation of the duty of nonrefoulement included in both the American Declaration of the Rights and Duties of Man and even the American Convention on Human Rights situates it in the narrower context of persons fleeing abuse of criminal law authority. But this narrower regional human rights protection cannot, of course, reduce the duty under Art. 33 of the Refugee Convention which simultaneously binds states. The states affirm “the voluntary and individual character of repatriation of refugees and the need for it to be carried out under conditions of absolute safety, preferably to the place

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states.326 The Declaration also promotes the social rights of refugees, including in particular those that enable refugees to play a productive role in the economic life of their host country.327 Perhaps most important, the Cartagena Declaration astutely avoids two pitfalls. On the issues of settlement of refugees away from the border with their home country, the Declaration does not follow Africa in authorizing mandatory relocation,328 but instead simply recommends that “refugee camps and settlements located in frontier areas should be set up inland at a reasonable distance from the frontier with a view to improving the protection afforded to refugees, safeguarding their human rights and implementing projects aimed at their self-sufficiency and integration into the host society.”329 And while the Cartagena Declaration, like the African treaty,330 is alive to the political importance of avoiding friction between states, it sensibly balances an admonition against “participation of refugees in activities directed against the country of origin” with the caveat that states must “at all times respect[] the human rights of the refugees.”331 The promotion of regional refugee rights by reference to the Cartagena Declaration has proven a wise strategy, as the Declaration has now been wholly or partly adopted into the domestic law of most states of the Americas.332

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of residence of the refugee in his country of origin”: OAS Cartagena Declaration, at Art. III(12). Ibid. at Art. II(1). States agree “[t]o reinforce programmes for protection of and assistance to refugees, particularly in the areas of health, education, labour and safety,” and to study “the possibilities of integrating them into the productive life of the country by allocating to the creation or generation of employment the resources made available by the international community through UNHCR, thus making it possible for refugees to enjoy their economic, social and cultural rights”: ibid. at Arts. II(h) and III(11). See text at note 272. 329 OAU Cartagena Declaration, at Art. III(6). See text at note 269. 331 OAU Cartagena Declaration, at Art. II(p). Mathew and Harley report that “[a]lthough non-binding, the Cartagena Declaration has been translated into the national laws of 14 countries [citing Argentina, Belize, Bolivia, Brazil, Chile, Colombia, El Salvador, Guatemala, Honduras, Mexico, Nicaragua, Paraguay, Peru, and Uruguay], and there is a periodic review process that has resulted in further regional arrangements to improve refugee protection”: Mathew and Harley, Refugees, Regionalism, at 42. “States seem to be inspired by the collective initiatives adopted by the region and try to include the developments . . . [in] the national legal systems, which may lead to improved protection . . . Some States have kept the original wording of the Declaration and others have changed it, but maintaining the so-called ‘spirit of Cartagena’ . . . has come to mean an approach to International Refugee Law and protection that is . . . broader in scope . . . more closely related to human rights and . . . more beneficial in terms of people being protected given the added criteri[a] for refugee status”: L. Jubilut, “Fora and Programmes for Refugees in Latin America,” in A. Abass and F. Ippolito eds., Regional Approaches to the Protection of Asylum Seekers: An International Law Perspective 245 (2016), at 245–246, 256.

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This emphasis on promoting expanded protection for refugees under national law has been buttressed by the work of regional human rights bodies interpreting the regionally guaranteed right of individuals to “seek and receive”333 or “seek and be granted”334 asylum in accordance with domestic and international law. As Cantor and Barichello note, during the 1990s the Inter-American Commission’s jurisprudence on the meaning of the right to “asylum” shifted dramatically away from the traditional regional focus on diplomatic asylum such that it now interprets the right of asylum almost exclusively by reference to refugee protection instruments. One important consequence of this shift is that the right to “receive” asylum is now framed in terms of the State obligations to provide protection to any person who objectively fulfils the international law definition of a refugee . . . In the words of the Commission, asylum under this framework is now “recognized by the State rather than offered by it.”335

This led the Commission to require a baseline set of due process guarantees for persons seeking recognition of refugee status, including the right to apply to authorities, to have their claim determined by a competent authority, to a fair hearing, to a proper decision, and to be protected from refoulement while the claim is being determined and subsequently if recognized as a refugee.336 The Commission’s pioneering work provided a strong foundation for the seminal decision on asylum of the Inter-American Court of Human Rights in Pacheco Tineo v. Bolivia.337 In that case, the Court determined that “[g]iven the declarative nature of the determination of refugee status . . . the States parties to the 1951 Convention . . . must recognize this status, based on the respective fair and competent proceedings.”338 The Court moreover addressed the substantive content of refugee rights, affirming that the Refugee Convention not only prohibits refoulement, but also establishes “the right to assimilation.”339 Most fundamentally, it determined that the Refugee Convention’s definition of refugee status and of the rights that follow from refugee status constitute the modern understanding of the right to seek and to enjoy asylum as codified in regional law: 333 335

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American Declaration, at Art. XXVII. 334 American Convention, at Art. 22(7). D. Cantor and S. Barichello, “Protection of Asylum Seekers under the Inter-American Human Rights System,” in A. Abass and F. Ippolito eds., Regional Approaches to the Protection of Asylum Seekers: An International Law Perspective 267 (2016) (Cantor and Barichello, “Protection”), at 275, citing Inter-American Commission on Human Rights, “Report on Terrorism and Human Rights,” Doc. OEA/Ser.L/V/II.115/Doc 5 rev 1 corr, at [394]. Cantor and Barichello, “Protection,” at 276–277. Pacheco Tineo v. Bolivia, Ser. C No. 272 (IACtHR, Nov. 25, 2013). 338 Ibid. at [147]. Ibid. at [141].

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Even if the 1951 Convention does not explicitly establish the right to asylum as a right, it is considered to be implicitly incorporated into its text, which mentions the definition of refugee, the protection against the principle of non-refoulement, and a list of rights to which refugees have access . . . With the protection provided by the 1951 Convention and its 1967 Protocol, the institution of asylum assumed a specific form and mechanism at the global level: that of refugee status.340

The Inter-American Court thus concluded that states are required to take real account of the special needs and rights of refugees and other non-citizens when implementing their general duties to respect human rights under regional law,341 an obligation which the Court has signaled it is prepared to enforce.342

1.5.3.4 League of Arab States The League of Arab States initiative, grounded in the not-yet-in-force Convention on Regulating Status of Refugees in the Arab Countries (“Arab Refugee Convention”),343 “confirms” the provisions of the UN Refugee Convention and Protocol, as well as those of the two UN Covenants on Human Rights.344 This treaty contains a loose commitment to asylum, with states agreeing “to exert every possible effort, within the limits of their respective national legislation, to accept refugees.”345 There is a strong confirmation of the basic duty of non-refoulement, with the treaty explicitly providing – in line with the Refugee Convention – that this duty applies for the duration of risk in the home state.346 The Arab Convention also expands the grounds for the duty of non-discrimination between and among refugees, adding gender and political or social affiliation to the Refugee Convention’s list of protected reasons.347 These commitments notwithstanding, the small number of rights provisions in the Arab Convention suggest an overall retrenchment from the Refugee Convention’s rights regime.348 Most fundamentally, states only 340 341

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Ibid. at [139]. “Based on the special needs for protection of migrant persons and groups, this Court interprets and provides content to the rights that the Convention recognizes to them, in keeping with the evolution of the international corpus juris applicable to the human rights of migrants”: ibid. at [129]. Indeed, it has recently been suggested that “[o]verall . . . the Inter-American system appears to provide the most expansive set of protections for asylum seekers and refugees of any human rights system”: Cantor and Barichello, “Protection,” at 290. League of Arab States, Arab Convention on Regulating Status of Refugees in the Arab Countries, adopted 1994, available at: www.refworld.org/docid/4dd5123f2.html, accessed Jan. 15, 2020 (“Arab Refugee Convention”). Ibid., Preamble, at [3]. 345 Ibid. at Art. 3. 346 Ibid. at Arts. 4, 9. Ibid. at Art. 7. League of Arab States “standards provide narrower protection than the 1951 UN Refugee Convention, for example by having no specific provisions relating to a number of rights, including the right to education, relief, housing and religion”: M. Rishmawi and

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commit themselves “to exert every possible effort, to ensure that refugees are accorded a level of treatment no less than that accorded to foreign residents on their territories.”349 This standard aligns awkwardly with what international refugee law requires, namely no treatment less than what aliens generally receive,350 and in many cases treatment on par with most-favored foreigners and often citizens of the host country.351 The Arab Refugee Convention also follows the regrettable example of the African Union treaty352 by prohibiting refugees from engaging in undefined “subversive activity leveled against any country including his country of origin”353 and limiting a refugee’s freedom of opinion and expression to exclude “attacking any country including his country of origin, [or] convey[ing], by any means whatsoever, any such opinions or news that may create tension between the host country and other countries.”354 While the desire to minimize interstate tension is of course understandable, the breadth of these limitations on basic human rights is, for reasons discussed above,355 not in accord with the requirements of the Civil and Political Covenant. These concerns may not be of any real moment, however, since despite adoption roughly a quarter of a century ago, the Arab Refugee Convention has been signed only by Egypt and is not in force.356

1.5.3.5 Association of Southeast Asian Nations The more recent and still evolving Southeast Asian system is grounded in the right to seek and to enjoy asylum codified in the 2012 Human Rights Declaration of the Association of Southeast Asian Nations,357 in which states “reaffirm” the international human rights instruments to which they are parties,358 and declare that the right to asylum is to be honored “in accordance with the laws of such State and applicable international agreements.”359 This core commitment coexists with commitments to collaboration under the so-called Bali Process360 and various forms of interstate collaboration

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J. Rashmawi, “The League of Arab States and the Protection of Migrants,” in F. Ippolito and S. Trevisanut eds., Migration in the Mediterranean: Mechanisms of International Cooperation 68 (2015) (Rishmawi and Rashmawi, “League of Arab States”), at 74. Arab Refugee Convention, at Art. 5. 350 See Chapter 3.2.1. 351 See Chapter 3.3. See text at note 270. 353 Arab Refugee Convention, at Art. 12. Ibid. at Art. 13. The draft of a revised text for the Arab Refugee Convention prepared in 2012 deletes this provision: Rishmawi and Rashmawi, “League of Arab States,” at 77. See text at note 271. Communication from the Department of Legal Affairs of the League of Arab States, Feb. 27, 2017 (on file with the author). One-third of the member states of the Arab League must ratify the treaty before it enters into force: Arab Refugee Convention, at Art. 17. ASEAN Human Rights Declaration, adopted Nov. 18, 2012 (“ASEAN Declaration”). ASEAN Declaration, Preamble, at [3]. 359 ASEAN Declaration, at [16]. The Bali Process on People Smuggling, Trafficking in Persons and Related Transnational Crime, a forty-eight-member forum co-chaired by Australia and Indonesia, arose in the

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that build on practices pioneered under the Comprehensive Plan of Action.361 It is noteworthy that as recently as 2009 refugees only figured in the workplan of the ASEAN Community as a consideration relevant to postconflict peace-building, with states committing themselves during the rebuilding phase to the “orderly repatriation”362 of refugees. As Kneebone notes, “refugees by implication [were] seen as a potential threat to social cohesion and as posing ‘transboundary challenges.’”363 It is therefore remarkable that just three years later the 2012 ASEAN Declaration codified a commitment to the right to “seek and receive” asylum.364 It is of course true that this provision – like the Arab Refugee Convention365 – defines access to asylum not only in terms of international obligations, but also as subject to the national laws of state parties.366 Yet the symbolic value of agreeing to enshrine the right to asylum means at least that no state in the region can any longer legitimately claim that the notion of a duty to protect refugees lacks local authenticity or legitimacy.367

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context of the 1999 Bangkok Declaration on Irregular Migration in which “international migration is conceived as involving irregular migration and ‘smuggling and trafficking in human beings.’ There is no reference to refugees or human rights in this document”: S. Kneebone, “ASEAN and the Conceptualization of Refugee Protection in Southeastern Asian States,” in A. Abass and F. Ippolito eds., Regional Approaches to the Protection of Asylum Seekers: An International Law Perspective 295 (2016) (Kneebone, “ASEAN”), at 299. More recently, however, the organization’s Regional Support Office in Bangkok “has commenced a number of projects for tackling irregular migration in the region and these include significant refugee protection elements”: Mathew and Harley, Refugees, Regionalism, at 51–52. Despite the success of the Comprehensive Plan of Action for Indochinese Refugees (“CPA”) in providing for protection by a system of global burden and responsibility sharing, it is arguable that the CPA’s focus on extra-regional resettlement led to a belief among Southeast Asian states that they ought not to be required to provide for durable protection on their own territory: S. Davis, Legitimising Rejection: International Refugee Law in Southeast Asia (2008), at 18. Reference is also sometimes made to the work of the Asian-African Legal Consultative Organization in 1966 (the “Bangkok Principles on Status and Treatment of Refugees”), though these recommendations of an advisory group “are non-binding and hardly impact on refugee law and practice”: S. Blay, “Regional Developments: Asia,” in A. Zimmermann ed., The 1951 Convention relating to the Status of Refugees and its 1967 Protocol (2011) 145, at 149; see also Mathew and Harley, Refugees, Regionalism, at 35. ASEAN, “Political-Security Community Blueprint,” adopted at the Fourteenth Summit, 2009, at [13.3.1(ii)]. Kneebone, “ASEAN,” at 306. 364 ASEAN Declaration, at Art. 16. See text at note 345. The Declaration has also been criticized for failing to include refugees as an example of a vulnerable and marginalized group, as ASEAN did in 1993: Kneebone, “ASEAN,” at 311. See C. Renshaw, “The ASEAN Human Rights Declaration 2012,” (2013) 13(3) Human Rights Law Review 557, at 559.

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In addition to the provision on asylum, the Declaration also contains at least one important advance on international refugee law by defining the right to move freely and to choose one’s place of residence as a right inhering in “every person”368 – thus clearly including refugees. On the other hand, the core right of refugees to be safeguarded against refoulement – a protection contained in all of the other regional refugee accords – is a striking omission from the ASEAN Declaration. It thus seems fair to conclude that this non-binding regional standard is very much “an incomplete statement of refugee rights . . . [which] suggests that refugees are not yet recognized within the ASEAN Community as rights-bearing individuals.”369

1.5.4 International Human Rights Law While there has been only modest evolution of the refugee rights regime since 1951, the broader field of international human rights law has undergone exponential change. The Refugee Convention was just the second major human rights convention adopted by the United Nations,370 the only contemporaneous formulation of comparable substantive breadth being the Universal Declaration of Human Rights – an unenforceable General Assembly resolution.371 Today, on the other hand, binding international human rights law has been established by the 1966 Human Rights Covenants, specialized universal accords, and regional human rights regimes in Europe, Africa, and the Americas. As the UNHCR’s Executive Committee has observed, the modern duty of protection therefore goes beyond simply respecting the norms of refugee law; it includes also the obligation “to take all necessary measures to ensure that refugees are effectively protected, including through national legislation, and in compliance with their obligations under international human rights and humanitarian law instruments bearing directly on refugee protection.”372 368

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ASEAN Declaration, at Art. 15. Refugee Convention Art. 31(2) – which does provide a presumptive right of all refugees in a state not to be subject to restrictions on freedom of movement – imposes certain criteria, set out in Art. 31(1), for entitlement to that protection: see Chapters 4.2.1 and 4.2.4. The right of a refugee to choose her place of residence only inheres with lawful presence: see Chapter 5.2. Kneebone, “ASEAN,” at 313. The Refugee Convention was preceded by the Convention on the Prevention and Punishment of the Crime of Genocide, 78 UNTS 277 (UNTS 1021), adopted Dec. 9, 1948, entered into force Jan. 12, 1951. UNGA Res. 217A(III), adopted Dec. 10, 1948. UNHCR Executive Committee Conclusion No. 81, “General Conclusion on International Protection” (1997), at [(e)], in UNHCR, “Conclusions on International Protection Adopted by the Executive Committee of the UNHCR Programme, 1975–2017,” UN Doc. HCR/IP/3/Eng/REV. 2017. Of particular importance, Art. 3 of the nearly universally subscribed Convention on the Rights of the Child, 1577 UNTS 3 (UNTS 27531), adopted Nov. 20, 1989, entered into force Sept. 2, 1990, requires that “[e]very legislative, administrative and judicial body or institution . . . apply the best interests [of the child] principle

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Since refugees are by definition non-citizens of their asylum country, a treaty ensuring the human rights of non-citizens would clearly be of enormous value. Sadly, however, there is still no binding UN human rights treaty addressed squarely to the rights of non-citizens as a group.373 The general human rights treaties most closely addressing the needs of non-citizens as such focus on work rights, including in particular the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, which entered into force on July 1, 2003.374 To the extent that refugees may avail themselves of this treaty’s provisions,375 it helpfully imposes obligations to provide, for example, emergency healthcare, children’s education, fair conditions and employment, and the right to be protected against abuse and attacks. More generally, non-citizens may invoke rights under the various conventions established by the International Labor Organization to regulate migration for employment purposes.376 Governed by an amalgam of state, employer, and worker representatives, the ILO has produced several treaties on international labor standards which, when ratified by states, are legally binding. Additional guidance is often provided by more detailed

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by systematically considering how children’s rights and interests are or will be affected by their decisions or actions”: J. Pobjoy, “The Best Interests of the Child Principle as an Independent Source of International Protection,” (2015) 64(2) International and Comparative Law Quarterly 327. See generally J. Pobjoy, The Child in International Refugee Law (2017). The General Assembly adopted the Declaration on the Human Rights of Individuals Who are Not Nationals of the Country in which They Live (UNGA Res. 40/144, adopted Dec. 13, 1985), but has yet to consider the codification of a binding catalog of rights specifically for non-citizens. 2220 UNTS 3 (UNTS 39481), adopted Dec. 18, 1990, entered into force July 1, 2003. Only fifty-five states have signed and/or ratified the treaty: https://treaties.un.org, accessed Dec. 21, 2020. Importantly, however, the treaty provides that “the present Convention shall not apply to . . . refugees and stateless persons, unless such application is provided for in the relevant national legislation of, or international instruments in force for, the State Party concerned”: ibid. at Art. 3(d). In 1939, the ILO adopted Convention No. 66, the Convention concerning the Recruitment, Placing and Conditions of Labor of Migrants for Employment, together with the accompanying Recommendation No. 61, Recommendation concerning the Recruitment, Placing and Conditions of Labor of Migrants for Employment. Convention No. 66 never secured sufficient ratifications to enter into force. It was updated in 1949 by Convention No. 97, the Convention concerning Migration for Employment (Revised) and its Recommendation No. 86, Recommendation concerning Migration for Employment (Revised). Convention No. 97 came into force shortly after the adoption of the Refugee Convention, and is a parallel source of rights for refugees lawfully admitted to residence in a state party. The ILO has since produced Convention No. 143, the Migrant Workers (Supplementary Provisions) Convention, 1975 and the companion Recommendation No. 151, Migrant Workers Recommendation, 1975. The 1975 accord deals with migration in abusive conditions and provides for equality of opportunity and treatment of migrant workers.

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recommendations, which do not have the force of law.377 The ILO’s progressive codification of migrant worker rights is an important source of enforceable socioeconomic rights for resident aliens, including those refugees who are lawfully admitted as immigrants to an asylum state. This is particularly so because ILO procedures allow enforcement action to be initiated not just by states, but equally by worker and employer organizations.378 The critical limitation of the ILO standards is, however, that they generally regulate the treatment only of refugees lawfully admitted as immigrants to the state in question. Beyond these work-related treaties addressed to non-citizens, refugees and other non-citizens may of course also invoke the general corpus of human rights law.379 During his tenure as the UN Special Rapporteur on the Rights of Non-Citizens, David Weissbrodt authored an important “comprehensive study of the rights of non-citizens.”380 The thrust of the report was that the human rights of non-citizens could be satisfactorily regulated under existing norms of international law,381 at least if there were greater clarity and 377

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Recent non-binding standards of relevance include “ILO Declaration on Fundamental Principles and Rights at Work,” International Labour Conference, 86th Sess., adopted June 18, 1998 (Annex revised June 15, 2010); and International Labour Office, “ILO Multilateral Framework on Labour Migration: Non-Binding Principles and Guidelines for a Rights-Based Approach to Labour Migration” (2006). Earlier standards of note include Recommendation No. 86 (1949) which proposes a model agreement for the regulation of labor migration. Several of these non-binding standards speak explicitly to the needs of refugees, regarded as a subset of persons who seek employment outside their own country. First, some additional rights are added to the binding list of matters to be guaranteed on terms of equality with nationals. These include rights to recognition of travel documents, adaptation assistance, naturalization, participation in collective labor agreements, private property, and of access to food and suitable housing. Second, equal access to trades and occupations is established, but only “to the extent permitted under national laws and regulations.” Third, migrant workers who are “lawfully within” the territory are entitled to equality of treatment with respect to hygiene, safety, and medical assistance; and, as far as the state regulates such matters, to weekly rest days, admission to educational institutions, recreation, and welfare. Fourth, the model agreement extends most of these equality rights to refugees’ family members, an entitlement not proposed for the families of other alien workers. See International Labor Conference et al., Conventions and Recommendations Adopted by the International Labor Conference, 1919-1966 (1966). See generally F. Wolf, “Human Rights and the International Labour Organization,” in T. Meron ed., Human Rights in International Law: Legal and Policy Issues (1984), at 273. “[T]he traditional law of aliens grounded on diplomatic protection has been progressively superseded by human rights law”: V. Chetail, “The Human Rights of Migrants in General International Law: From Minimum Standards to Fundamental Rights,” (2013) 28(1) Georgetown Immigration Law Journal 225 (Chetail, “Human Rights of Migrants”), at 242. “The Rights of Non-citizens: Final Report of the Special Rapporteur,” UN Doc. E/CN.4/ Sub.2/2003/23, May 26, 2003. As he has written more recently, “the principal objective is not to define and delineate separate categories of non-citizens. It is to mobilize and implement human rights norms and techniques that already apply across the various categories of non-citizens”:

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coordination among the standards applied by human rights supervisory bodies.382 For example, observing that most non-citizens are, in fact, racial minorities (since “race” is defined to include inter alia national or ethnic origin)383 Weissbrodt argued for enhancing the rights of non-citizens via targeted scrutiny under the widely ratified Racial Discrimination Convention384 – an approach that has since been formally embraced by the Committee on the Elimination of Racial Discrimination.385 More generally, a sustained effort has been made to incorporate consideration of the rights of refugees and other non-citizens in the universal and specialized periodic reporting processes under UN human rights treaties,386 including under both of the Human Rights Covenants. As general sources of human rights protection, the two UN Covenants on Human Rights are of unparalleled breadth. At least as important, 98 percent of the world’s refugees live in countries that are bound by both the International

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D. Weissbrodt, The Human Rights of Non-Citizens (2008), at 244. It is nonetheless true that “[t]he criticism of international human rights law as ‘dispersive and fragmentary’ in its protection of migrants remains valid, because migrants’ rights derive from many legal sources”: S. Grant, “The Recognition of Migrants’ Rights Within the UN Human Rights System: The First 60 Years,” in M. Dembour and T. Kelly eds., Are Human Rights for Migrants? Critical Reflections on the Status of Irregular Migrants in Europe and the United States 25 (2011) (Grant, “Migrants’ Rights”), at 47. “The Rights of Non-citizens: Final Report of the Special Rapporteur,” UN Doc. E/CN.4/ Sub.2/2003/23, May 26, 2003, at [31]–[33], [39]–[40]. Racial Discrimination Convention, at Art. 1(1). “The Rights of Non-citizens: Final Report of the Special Rapporteur,” UN Doc. E/CN.4/ Sub.2/2003/23, May 26, 2003, at [34]. “Article 1, paragraph 2 [of the Convention on the Elimination of All Forms of Racial Discrimination] provides for the possibility of differentiating between citizens and noncitizens . . . [But it] must be construed so as to avoid undermining the basic prohibition of discrimination; hence it should not be interpreted to detract in any way from the rights and freedoms recognized and enunciated in particular in the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights . . . [D]ifferential treatment based on citizenship or immigration status will constitute discrimination if the criteria for such differentiation, judged in the light of the objectives and purposes of the [Racial Discrimination] Convention, are not applied pursuant to a legitimate aim, and are not proportional to the achievement of this aim”: UN Committee on the Elimination of Racial Discrimination, “General Recommendation XXX: Discrimination against Non-citizens” (2004), UN Doc. CERD/C/64/Misc.11/rev.3, at [1], [2], [4]. See generally Grant, “Migrants’ Rights,”; and Chetail, “Human Rights of Migrants,” at 239–242. For example, in relation to the most widely ratified international human rights treaty – the Convention of the Rights of the Child – the supervisory body has insisted that unless clearly stated otherwise in the treaty, children’s rights must “be available to all children – including asylum-seeking, refugee and migrant children – irrespective of their nationality, immigration status or statelessness”: UN Committee on the Rights of the Child, “General Comment 6: Treatment of Unaccompanied and Separated Children outside their Countries of Origin” (2009), UN Doc. CRC/GC/2005/6, at [12].

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Covenant on Civil and Political Rights (“Civil and Political Covenant”) and the International Covenant on Economic, Social and Cultural Rights (“Economic and Social Covenant”).387 The most critical feature for refugees of the Civil and Political Covenant is that it generally extends its broad-ranging protection to “everyone” or to “all persons.”388 Specifically, each contracting state undertakes in Art. 2(1) to ensure the rights in the Covenant “to all individuals within its territory and subject to its jurisdiction . . . without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” While nationality is not included in this illustrative list, it has been determined to be embraced by the residual category of “other status.”389 The Human Rights Committee has thus explicitly affirmed that “the general rule is that each one of the rights of the Covenant must be guaranteed without discrimination between citizens and aliens. Aliens must receive the benefit of the general requirement of non-discrimination in respect of the rights guaranteed by the Covenant.”390 Indeed, the Committee has held that rights may not be limited to citizens of a state,391 but “must also be available to all individuals, regardless of nationality or statelessness, such as asylum-seekers [and] refugees.”392 The Civil and Political Covenant is therefore a critical source of rights for refugees, mandating attention to matters not addressed in the Refugee Convention, such as the rights to life and family, freedoms of opinion and expression, and protection from torture, inhuman or degrading treatment, and slavery. Yet it is decidedly not the case that general civil and political rights render cognate guarantees in the Refugee Convention superfluous. First, because the Covenant on Civil and Political Rights is addressed primarily to persons who reside in their state of citizenship, it does not deal with a number of refugee-specific concerns, including recognition of 387

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http://indicators.ohchr.org, accessed Jan. 15, 2020, and UNHCR, “Global Trends: Forced Displacement in 2018,” at Annex, Table 1. The two most critical exceptions are Malaysia (which hosts some 120,000 refugees) and South Sudan (which hosts more than 290,000 refugees). In the result, guarantees against discrimination apply: see Chapter 1.5.5. One commentator grounded his analysis in the notion of nationality as a “distinction of any kind”: Lillich, Rights of Aliens, at 46. UN Human Rights Committee, “General Comment No. 15: The Position of Aliens under the Covenant” (1986), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at 140, [2]. The exceptions are that only citizens are granted the rights to vote, to run for office, and to enter the public service: Civil and Political Covenant, at Art. 25. UN Human Rights Committee, “General Comment No. 31: The Nature of the General Legal Obligations of States Parties to the Covenant” (2004), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at 192, [10]. This understanding was explicitly endorsed by the Supreme Court of Canada in Nevsun Resources Ltd. v. Gize Yebeyo Araya et al., [2020] SCC 5 (Can. SC, Feb. 28, 2020), at [119].

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personal status, access to naturalization, immunity from penalization for illegal entry, the need for identity documents, and especially protection from refoulement.393 A second concern is that even where the subject matter of the Civil and Political Covenant is relevant to refugees, the Covenant often formulates rights on the basis of inappropriate assumptions. For example, the Civil and Political Covenant sets guarantees of fairness in judicial proceedings, but does not deal with the more basic issue of access to a court system.394 Yet refugees and other aliens, unlike citizens, are not always able freely to invoke judicial remedies. Third and perhaps most ominously, governments faced with genuine public emergencies are authorized to withdraw all but a few core civil rights from non-citizens,395 even if the measures taken would ordinarily amount to impermissible discrimination on grounds of national origin, birth, or other status.396 In contrast, once an individual’s refugee status is affirmatively assessed, refugee rights must be honored at all times, including during “time of war or other grave and exceptional circumstances.”397 393

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Even as he argues the primacy of human rights law to protect migrants, Chetail forthrightly concedes that “[a] non-citizen must be lawfully within the territory of a state in order to benefit within that territory from the right to liberty of movement and freedom to choose his/her residence. But, even when lawfully within the territory, he or she may still be deported from that territory as long as some basic conditions and procedural guarantees are fulfilled”: Chetail, “Human Rights of Migrants,” at 245. Under the Refugee Convention, in contrast, these concerns are more thoroughly catered for: Refugee Convention, at Arts. 31, 32, 33. Compare Civil and Political Covenant, at Arts. 14–16, with the Refugee Convention, at Art. 16. The rights which cannot be suspended are the rights to life; freedom from torture, cruel, inhuman, or degrading treatment or punishment; freedom from slavery; freedom from imprisonment for contractual breach; freedom from ex post facto criminal law; recognition as a person; and freedom of thought, conscience, and religion: Civil and Political Covenant, at Art. 4(2). Ordinarily, emergency derogation must not be imposed in a discriminatory way. However, the grounds of impermissible discrimination for emergency derogation purposes explicitly omit reference to several of the general grounds on which discrimination is prohibited under the Civil and Political Covenant. The omissions include discrimination on the grounds of political or other opinion; national origin; property; birth or other status. Compare Civil and Political Covenant, at Arts. 2(1) and 4(1). A UN Special Rapporteur on the Rights of Non-Citizens has suggested that “[t]his omission, according to the travaux préparatoires, was intentional because the drafters of the Covenant understood that States may, in time of national emergency, have to discriminate against noncitizens within their territory”: UN Commission on Human Rights, “Preliminary Report of the Special Rapporteur on the Rights of Non-Citizens,” UN Doc. E/CN.4/Sub.2/2001/ 20, June 6, 2001, at [37]. Refugee Convention, at Art. 9. See generally Chapter 3.5.1.

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The continuing value of refugee-specific rights is even more apparent in the field of socioeconomic rights.398 The Economic and Social Covenant399 includes a non-discrimination obligation which is essentially indistinguishable from that set by the Civil and Political Covenant400 under which rights explicitly inhere in “everyone.”401 They are also to be implemented without discrimination “of any kind as to . . . national or social origin . . . or other 398

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“[T[he position of migrants under general international law is more precarious when it comes to economic, social, and cultural rights”: Chetail, “Human Rights of Migrants,” at 247. International Covenant on Economic, Social and Cultural Rights, 993 UNTS 3 (UNTS 14531), adopted Dec. 16, 1966, entered into force Jan. 3, 1976. See UN Committee on Economic, Social and Cultural Rights, “General Comment No. 20: Non-discrimination in Economic, Social and Cultural Rights,” (2009) UN Doc. E/C.12/ GC/20, July 2, 2009, at [3], [5], [30]. Two kinds of distinction are sometimes asserted. First, while state parties to the Civil and Political Covenant agree to grant rights to all without discrimination, the contemporaneously drafted Economic and Social Covenant requires only an undertaking that whatever rights are granted may be exercised without discrimination: compare Civil and Political Covenant, at Art. 2(1) and Economic and Social Covenant, at Art. 2(2). Superficially, this would suggest that whereas the Civil and Political Covenant prohibits limitation of the category of rights holders, the formulation in the Economic and Social Covenant does not. In fact, however, the various rights in the Economic and Social Covenant are granted to “everyone” or “all,” nullifying any practical distinction between the non-discrimination clauses in the two Covenants. Second, the non-discrimination provision in the Civil and Political Covenant seems to be more inclusively framed than its counterpart in the Economic and Social Covenant. Whereas the former prohibits “distinction of any kind, such as” a distinction based on the listed forms of status, the Economic and Social Covenant prohibits “discrimination of any kind as to” the enumerated types of status. But unless it is suggested that no differentiation, even on patently reasonable grounds, can ever be permissible in relation to rights under the Civil and Political Covenant, no concrete consequences flow from use of the word “distinction” rather than “discrimination.” Nor does it matter that one Covenant prohibits discrimination “such as” that based on certain grounds, while the other proscribes discrimination “as to” those same grounds. Because the list under both Covenants includes the generic term “other status,” the net result in each case is an inclusive duty of non-discrimination, including, for example, non-discrimination in relation to refugees and other aliens. For example, the Committee on Economic, Social and Cultural Rights has made clear that “[t]he right to adequate housing applies to everyone. While the reference to ‘himself and his family’ reflects assumptions as to gender roles and economic activity patterns commonly accepted in 1966 when the Covenant was adopted, the phrase cannot be read today as implying any limitations upon the applicability of the right to individuals or to femaleheaded households or other such groups”: UN Committee on Economic, Social and Cultural Rights, “General Comment No. 4: The Right to Adequate Housing” (1991), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [6]. See also UN Committee on Economic, Social and Cultural Rights, “General Comment No. 12: The Right to Adequate Food” (1999), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [1]: “The human right to adequate food is of crucial importance for the enjoyment of all rights. It applies to everyone; thus the reference in article 11.1 to ‘himself and his family’ does not imply any limitation upon the applicability of this right to individuals or to female-headed households.”

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status.”402 The Committee on Economic, Social and Cultural Rights has moreover made emphatically clear that refugees, whatever their formal status, must enjoy rights set by the Economic and Social Covenant without discrimination: All people under the jurisdiction of the State concerned enjoy Covenant rights. That includes asylum seekers and refugees, as well as other migrants, even when their situation in the country concerned is irregular . . . [P]rotection from discrimination cannot be made conditional upon an individual having a regular status in the host country.403

But rather than being conceived as requiring immediate implementation,404 generally applicable socioeconomic rights set only duties of progressive, nondiscriminatory implementation.405 Under the Economic and Social Covenant, 402

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Economic and Social Covenant, at Art. 2(2). One commentator has argued that the enumerated grounds on which discrimination is prohibited are exhaustive: A. Bayefsky, “The Principle of Equality or Non-Discrimination in International Law,” (1990) Human Rights Law Journal 1, at 5. The better position notes the clearly open-ended nature of the reference to “discrimination of any kind as to . . . other status,” and concludes that the list of prohibited grounds is illustrative: M. Craven, The International Covenant on Economic, Social and Cultural Rights: A Perspective on its Development (1995) (Craven, ICESCR Commentary), at 168. See also A. Chapman, “A ‘Violations Approach’ for Monitoring the International Covenant on Economic, Social and Cultural Rights,” (1996) 18 Human Rights Quarterly 23, at 54–55: “It is notable that in a world which offers few protections of ‘illegal immigrants,’ the [Economic, Social and Cultural Rights] Committee has disagreed with the interpretation of at least one government (the government of Hong Kong) that asylum-seekers are not entitled to enjoy . . . rights in view of their status as ‘illegal immigrants.’” UN Committee on Economic, Social and Cultural Rights, “Duties of States towards Refugees and Migrants under the International Covenant on Economic, Social and Cultural Rights,” UN Doc. E/C.12/2017/1, Mar. 13, 2017, at [3], [6]. Indeed, “a lack of available resources cannot be considered as an objective and reasonable justification for difference in treatment ‘unless every effort has been made to use all resources that are at the State party’s disposition in an effort to address and eliminate the discrimination, as a matter of priority’”: ibid. at [5]. See also UN Committee on Economic, Social and Cultural Rights, “General Comment No. 20: Non-discrimination in Economic, Social and Cultural Rights” (2009), UN Doc. E/C.12/GC/ 20, July 2, 2009, at [30] (“The Covenant rights apply to everyone including non-nationals, such as refugees [and] asylum seekers”); and UN Committee on Economic, Social and Cultural Rights, “General Comment No. 15: The Right to Water” (2002), UN Doc. HRI/ GEN/1/Rev.7, May 12, 2004, at [16], noting the duty to meet the needs of refugees for water on terms of equality with those of citizens. In the case of the Civil and Political Covenant, the Human Rights Committee has observed that “[t]he requirement under article 2, paragraph 2, to take steps to give effect to the Covenant rights is unqualified and of immediate effect. A failure to comply with this obligation cannot be justified by reference to political, social, cultural or economic considerations within the State”: UN Human Rights Committee, “General Comment No. 31: The Nature of the General Legal Obligations Imposed on States Parties to the Covenant” (2004), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at 192, [14]. As Saul et al. observe, “[t]he tone and nature of the demands made of states are quite different from the equivalent Article 2(1) in the [Civil and Political Covenant], being more

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states are required simply to “take steps” progressively to realize economic, social and cultural rights to the extent possible within the limits of their resources.406 This duty of non-discriminatory, progressive implementation seeks to strike a delicate balance: It is on the one hand a necessary flexibility device, reflecting the realities of the real world and the difficulties involved for any country in ensuring full realization of economic, social and cultural rights. On the other hand, the phrase must be read in the light of the overall objective, indeed the raison d’être, of the Covenant which is to establish clear obligations for States parties in respect of the full realization of the rights in question. It thus imposes an obligation to move as expeditiously and effectively as possible towards that goal. Moreover, any deliberately retrogressive measures in that regard would require the most careful consideration and would need to be fully justified by reference to the totality of the rights provided for in the Covenant and in the context of the full use of the maximum available resources.407

Importantly, even this fluid standard is normally breached by the active withdrawal of rights.408 More generally, the fact that rights need only be progressively implemented “does not mean that States parties may indefinitely

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exhortatory than mandatory, more progressive than immediate”: B. Saul et al., The International Covenant on Economic, Social and Cultural Rights: Commentary, Cases, and Materials (2014) (Saul, ICESCR Commentary), at 134. Economic and Social Covenant, at Art. 2(1). “The term ‘progressive realization’ is often used to describe the intent of this phrase. The concept of progressive realization constitutes a recognition of the fact that full realization of all economic, social and cultural rights will generally not be able to be achieved in a short period of time”: UN Committee on Economic, Social and Cultural Rights, “General Comment No. 3: The Nature of States Parties’ Obligations” (1990), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [9]. The Committee has helpfully explained the measures it uses to assess “adequate” or “reasonable” steps to implement Covenant rights: UN Committee on Economic, Social and Cultural Rights, “An Evaluation of the Obligation to Take Steps to the ‘Maximum of Available Resources’ under an Optional Protocol to the Covenant,” UN Doc. E/C.12/2007/ 1, Sept. 21, 2007, at [8]. UN Committee on Economic, Social and Cultural Rights, “General Comment No. 3: The Nature of States Parties’ Obligations” (1990), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [9]. The Committee on Economic, Social and Cultural Rights has specifically adumbrated standards that are to be applied in the event that “resource constraints” are asserted as justification for retrogressive steps: UN Committee on Economic, Social and Cultural Rights, “An Evaluation of the Obligation to Take Steps to the ‘Maximum of Available Resources’ under an Optional Protocol to the Covenant,” UN Doc. E/C.12/2007/1, Sept. 21, 2007, at [10]. In such circumstances, it has insisted that “the burden of proof rests on the State party to show that such a course of action was based on the most careful consideration and can be justified by reference to the totality of the rights provided for in the Covenant and by the fact that full use was made of available resources”: ibid. at [9].

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postpone taking action.”409 To the contrary, there is a duty to give priority to the realization of economic, social, and cultural rights,410 and to ensure that their realization is subject to meaningful legal accountability and respectful of other requirements of human rights law: [T]his flexibility coexists with the obligation upon each State party to use all the means at its disposal to give effect to the rights recognized in the Covenant. In this respect, the fundamental requirements of international human rights law must be borne in mind. Thus the Covenant norms must be recognized in appropriate ways within the domestic legal order, appropriate means of redress, or remedies, must be available to any aggrieved individual or group, and appropriate means of ensuring governmental accountability must be put in place.411

Of critical importance in the refugee context, a state may not claim exemption from its duties under the Economic and Social Covenant on grounds of resource insufficiency unless it proves that it has sought out, and been denied, international aid sufficient to meet its core obligations under the Covenant.412 Regrettably, though, there is no corresponding obligation on the part of 409

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UN Committee on Economic, Social and Cultural Rights, “Duties of States towards Refugees and Migrants under the International Covenant on Economic, Social and Cultural Rights,” UN Doc. E/C.12/2017/1, Mar. 13, 2017, at [4]. See D. Trubek, “Economic, Social, and Cultural Rights in the Third World,” in T. Meron ed., Human Rights in International Law: Legal and Policy Issues 205 (1984), at 215: “I believe the available resources language should be read as establishing a priority for social welfare. Given the purpose of the Economic Covenant, it is hard to see how the alternative reading would make any sense. It is clear that the drafters of the Economic Covenant wished to impose obligations on states. Yet if the only obligation arising from the Economic Covenant was that a state could spend what it wanted on social welfare, then this would be no obligation at all and the drafters would have failed in their goal. This reasoning from purpose is supported by the legislative history.” UN Committee on Economic, Social and Cultural Rights, “General Comment No. 9: The Domestic Application of the Covenant” (1998), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [2]. “A final element of article 2(1), to which attention must be drawn, is that the undertaking given by all States parties is ‘to take steps, individually and through international assistance and cooperation, especially economic and technical’”: ibid. at [13]. The Committee notes that the phrase “to the maximum of its available resources” was intended by the drafters of the Covenant to refer to both the resources existing within a state and those available from the international community through international cooperation and assistance: ibid. More generally, “[a] failure to remove differential treatment on the basis of a lack of available resources is not an objective and reasonable justification unless every effort has been made to use all resources that are at the State party’s disposition in an effort to eliminate the discrimination, as a matter of priority”: UN Committee on Economic, Social and Cultural Rights, “General Comment No. 20: Non-discrimination in Economic, Social and Cultural Rights” (2009), UN Doc. E/C.12/GC/20, July 2, 2009, at [13]. See also UN Committee on Economic, Social and Cultural Rights, “An Evaluation of the Obligation to Take Steps to the ‘Maximum of Available Resources’ under an Optional Protocol to the Covenant,” UN Doc. E/C.12/2007/1, Sept. 21, 2007, at [10(f)], indicating that the

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wealthier countries to provide the needed resources. Reflecting the failure to agree to a binding human right to development,413 there is no clear or enforceable legal obligation414 on wealthier countries to provide aid.415 In particular, there is no consensus on which states are subject to the duty to assist set by Art. 2(1), or on the sorts of action which are encompassed by the obligation to engage in “international assistance and cooperation, especially economic and technical.”416 Most important, Art. 2(1) does not define how much assistance is required to meet a state’s obligation, or to whom that assistance should be directed.417 The tentative nature of the duty is evident

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Committee will take account of efforts to seek international aid in determining whether a state’s failure to meet its obligations was justifiable. To date, only a non-binding declaration on this subject has been adopted. See “Declaration on the Right to Development,” UNGA Res. 41/128 (1986). “Although there seems to be agreement that the rights in the Covenant are contingent, to a degree, on the provision of international assistance, the nature, scope, and obligatory nature of such assistance is unclear”: Craven, ICESCR Commentary, at 145. The Committee on Economic, Social and Cultural Rights has framed the duty in typically vague terms. “The Committee wishes to emphasize that in accordance with Articles 55 and 56 of the Charter of the United Nations, with well-established principles of international law, and with the provisions of the Covenant itself, international cooperation for development and thus for the realization of economic, social and cultural rights is an obligation of all States. It is particularly incumbent upon those States which are in a position to assist others in this regard. The Committee notes in particular the importance of the Declaration on the Right to Development adopted by the General Assembly in its resolution 41/128 of 4 December 1986 and the need for States parties to take full account of all of the principles recognized therein. It emphasizes that, in the absence of an active programme of international assistance and cooperation on the part of all those States that are in a position to undertake one, the full realization of economic, social and cultural rights will remain an unfulfilled aspiration in many countries”: UN Committee on Economic, Social and Cultural Rights, “General Comment No. 3: The Nature of States Parties’ Obligations” (1990), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [14]. But see Saul, ICESCR Commentary, at 140: “[T]he assertion that there are ‘well-established principles of international law’ that oblige states to so cooperate is simply incorrect. That states ought to so cooperate is a principle often and rightly advanced in legal and non-legal circles. That, beyond this, there may be grounds to argue that there already exists (or nearly so) a duty to cooperate in international law is also a contention not infrequently advanced in international legal debates. But to maintain still further, not only that the principle exists (the ‘ought’ being now accepted as an ‘is’), but that it is a matter ‘well-established,’ is hyperbole.” The most direct conclusion of the Committee is that “given that some diseases are easily transmissible beyond the frontiers of a State, the international community has a collective responsibility to address this problem. The economically developed States parties have a special responsibility and interest to assist the poorer developing States in this regard”: UN Committee on Economic, Social and Cultural Rights, “General Comment No. 14: The Right to the Highest Attainable Standard of Health” (2000), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [40]. See generally Craven, ICESCR Commentary, at 146–147. At the 2001 session of the UN Commission on Human Rights, a Cuban proposal to establish an independent expert to monitor the fulfillment by developed countries of their political pledge to allocate 0.7 percent of their GNP to development assistance was

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also from the rather soft language used in relevant general comments issued by the Committee on Economic, Social and Cultural Rights. States “should” provide aid to realize the right to food;418 they “should” facilitate realization of the right to water in other countries;419 they “should” provide the funds to facilitate access by all to basic healthcare;420 and of most direct relevance to this study, they “should” provide disaster assistance and humanitarian assistance to meet the needs of refugees.421 In no case, however, has the Committee found that the Economic and Social Covenant imposes precise and directly enforceable obligations to provide a given quantum or kind of assistance to states in any specified predicament.422 Craven helpfully summarizes the historical basis

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abandoned for lack of support: M. Dennis, “The Fifty-Seventh Session of the UN Commission on Human Rights,” (2002) 96(1) American Journal of International Law 181. “In the spirit of Article 56 of the Charter of the United Nations, the specific provisions contained in articles 11, 2.1, and 23 of the Covenant and the Rome Declaration of the World Food Summit, States parties should recognize the essential role of international cooperation and comply with their commitment to take joint and separate action to achieve the full realization of the right to adequate food. In implementing this commitment, States parties should take steps to respect the enjoyment of the right to food in other countries, to protect that right, to facilitate access to food and to provide the necessary aid when required. States parties should, in international agreements whenever relevant, ensure that the right to adequate food is given due attention and consider the development of further international legal instruments to that end”: UN Committee on Economic, Social and Cultural Rights, “General Comment No. 12: The Right to Adequate Food” (1999), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [36]. UN Committee on Economic, Social and Cultural Rights, “General Comment No. 15: The Right to Water” (2002), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [34]. “Depending on the availability of resources, States should facilitate access to essential health facilities, goods and services in other countries wherever possible and provide the necessary aid when required. States parties should ensure that the right to health is given due attention in international agreements and, to that end, should consider the development of further legal instruments. In relation to the conclusion of other international agreements, States parties should take steps to ensure that these instruments do not adversely impact upon the right to health. Similarly, States parties have an obligation to ensure that their actions as members of international organizations take due account of the right to health”: UN Committee on Economic, Social and Cultural Rights, “General Comment No. 14: The Right to the Highest Attainable Standard of Health” (2000), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [39]. “States have a joint and individual responsibility, in accordance with the Charter of the United Nations, to cooperate in providing disaster relief and humanitarian assistance in times of emergency, including assistance to refugees and internally displaced persons. Each State should contribute to this task in accordance with its ability”: UN Committee on Economic, Social and Cultural Rights, “General Comment No. 12: The Right to Adequate Food” (1999), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [38]. “In disaster relief and emergency assistance, including assistance to refugees and displaced persons, priority should be given to Covenant rights, including the provision of adequate water”: UN Committee on Economic, Social and Cultural Rights, “General Comment No. 15: The Right to Water” (2002), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [34]. “While there would appear to be considerable scope for strengthening States’ external obligations . . . it is an area in which States are unlikely, in the foreseeable future, to agree to

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for this caution with regard to the notion of a duty to provide development assistance: During the drafting of the Covenant, Chile claimed that “international assistance to under-developed countries had in a sense become mandatory as a result of commitments assumed by States in the United Nations.” This was almost universally challenged by other representatives of all the groupings involved. The general consensus was that developing States were entitled to ask for assistance but not claim it as a legal right. The text of article 11 bears out this conclusion. In recognizing the role of international co-operation in the realization of rights, it stipulates that it should be based upon “free consent.”423

There is therefore what amounts to an asymmetrical approach to foreign aid in international law. A government must accept available aid to enable it to implement the rights of persons under its jurisdiction, but states with the means to satisfy even the most basic survival interests of destitute persons abroad are under no concomitant legal duty to share their wealth.424 This skewed optic was recently specifically affirmed in the context of duties owed to refugees: International assistance and cooperation, in particular, are required to allow States facing a sudden influx of refugees and migrants to comply with their core obligations . . . The Committee is aware that, when confronted by large flows of migrants fleeing conflict or persecution, some States face a heavier burden than others. It sees any measure that States parties adopt to support the realization of the Covenant rights on the territory of other States as contributing to the aims of the Covenant.425

The one legal constraint which does appear to exist, however, is that whatever international aid a state agrees to provide must be granted and administered on a non-discriminatory basis. In line with the substantive content traditionally understood to comprise the duty of nondiscrimination,426 the importance of allocating aid on the basis of relative

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specific demands on the amount of distribution of aid to third countries”: Craven, ICESCR Commentary, at 150. Ibid. at 148–149. “Even if duties do exist, what sort of obligations flow from the duty in a world of mass poverty and deprivation with limited global resources? Can they be identified with any precision? Who is the duty-bearer when different States have the capacity to assist?”: M. Langford et al., “Extra-Territorial Duties in International Law,” in M. Langford et al. eds., Global Justice, State Duties: The Extra-Territorial Scope of Economic, Social and Cultural Rights in International Law (2013), at 52. The unwillingness to suggest a clear duty to assist was recently made clear in the refugee context: UN Committee on Economic, Social and Cultural Rights, “Duties of States towards Refugees and Migrants under the International Covenant on Economic, Social and Cultural Rights,” UN Doc. E/C.12/2017/1, Mar. 13, 2017, at [18]. See generally Chapter 1.5.5.

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need has been affirmed.427 In particular, Art. 26 of the Civil and Political Covenant requires that there be no discrimination, in law or in fact, in the allocation of any public goods on the basis of, for example, race, nationality, social origin, or other status.428 A dynamic interpretation of this overarching duty suggests that since international aid provided under Art. 2(1) of the Economic and Social Covenant is expressly intended to advance Covenant rights where states are least able to ensure those rights independently, political or other distortions of aid are violations of the duty of non-discrimination.429 To date, however, no state has been found to violate international human rights law because of a politically inspired decision to shift aid resources from one group to another. Much less is it likely that a breach would be found if a wealthy government were to decide simply to end aid to refugees or other impoverished persons abroad in favor of spending resources on its own (less needy) citizenry.430 In the end, then, under present interpretations of international human rights law, the failure of a government to provide foreign aid or to allocate its foreign aid resources to meet relative needs is probably not legally actionable.431 427

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While still employing irresolute language, the Committee has concluded that “[p]riority in the provision of international medical aid, distribution and management of resources, such as safe and potable water, food and medical supplies, and financial aid should be given to the most vulnerable or marginalized groups of the population”: UN Committee on Economic, Social and Cultural Rights, “General Comment No. 14: The Right to the Highest Attainable Standard of Health” (2000), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [40]. With respect to the aid provided by international organizations, see ibid. at [65]. See Chapter 1.5.5 at note 462 ff. There is, of course, also the question of whether the duty of non-discrimination binds a state in its extraterritorial actions. It has been persuasively argued that there is no principled reason to release states which act extraterritorially from legal obligations that would otherwise circumscribe the scope of their authority. According to Meron, “[i]n view of the purposes and objects of human rights treaties, there is no a priori reason to limit a state’s obligation to respect human rights to its national territory. Where agents of the state, whether military or civilian, exercise power and authority (jurisdiction, or de facto jurisdiction) over persons outside national territory, the presumption should be that the state’s obligations to respect the pertinent human rights continues. That presumption could be rebutted only when the nature and content of a particular right or treaty language suggest otherwise”: T. Meron, “Extraterritoriality of Human Rights Treaties,” (1995) 89(1) American Journal of International Law 78, at 80–81. See Chapter 1.5.5 at note 471 ff. “[T]he Committee avoids any direct attribution of responsibility or duty on the part of richer states in particular, or the international community more generally, to provide assistance and cooperation to less well-off states . . . It is, in other words, largely up to the individual [poorer] state to avail itself of those opportunities for assistance that are available, rather than there being any specific obligation on other countries or international organizations to make such assistance available, still less any duty on them to render assistance”: Saul, ICESCR Commentary, at 138–139.

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Overall, it is clearly the case that the Economic and Social Covenant’s duty of progressive, non-discriminatory implementation is more fluid than that set by the Refugee Convention with regard to cognate rights. Refugee rights even of a socioeconomic nature set duties of result, and may not be lawfully avoided because of competition within the host state for scarce resources. A second constraint on the value for refugees of the rights set by the Economic and Social Covenant is Art. 2(3). This paragraph authorizes “[d]eveloping countries, with due regard to human rights and their national economy, [to] determine to what extent they [will] guarantee the economic rights recognized in the present Covenant to non-nationals.” Saul contends that this provision contemplates not just the maintenance of existing restrictions, but also “the introduction of new measures designed to limit the rights which non-nationals had previously enjoyed.”432 Sadly, neither the notion of a “developing country,” nor that of “economic” rights – presumably as contrasted with social or cultural rights – is defined in the Covenant.433 The Committee on Economic, Social and Cultural Rights has, however, recently insisted that the “exception only . . . concerns economic rights, in particular access to employment . . . [W]hereas education has sometimes been described as an economic right, the right of each child to education should be recognized by each State independently of the nationality or the legal status of his or her parents.”434 Yet even with this caveat, the rigors of Art.

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Ibid. at 215. The authors seek to constrain the impact of this analysis by invoking the drafting history to argue that “Article 2(3) was . . . intended to allow developing countries to address structural inequalities in their economies which resulted from colonialism [emphasis added]” and that “Article 2(3) would therefore seem to refer to countries which are economically weak and which were formerly subject to colonial rule”: ibid. at 215–216. While reliance on the travaux is of course appropriate (see Chapter 2.3), they are simply one component of what should be an interactive process of treaty interpretation. Evidence of historical intent should in particular be balanced against more contemporary evidence of the social and legal context within which original intentions are now to be implemented, as well as the plain language of the text. It is thus doubtful that a country such as Afghanistan – never colonized but generally recognized as one of the “least developed countries” (https:// unctad.org/topic/vulnerable-economies/least-developed-countries/list, accessed Dec. 21, 2020) – should be excluded from the category of “developing countries” for purposes of Art. 2(3). This leads Warren McKean to conclude that the language of Art. 2(3) “is unconscionably vague. It must therefore be regarded as an unfortunate inclusion in a covenant of this nature and likely to cause invidious and unreasonable distinctions to be made against aliens on the ground of their foreign nationality”: W. McKean, Equality and Discrimination under International Law (1983) (McKean, Equality and Discrimination), at 201. UN Committee on Economic, Social and Cultural Rights, “Duties of States towards Refugees and Migrants under the International Covenant on Economic, Social and Cultural Rights,” UN Doc. E/C.12/2017/1, Mar. 13, 2017, at [8]. It is regrettable that the Committee does not provide clear reasoning for its position that education is not properly deemed an economic right subject to Art. 2(3).

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2(3)435 could subject the vast majority of the world’s refugees located in the less developed world to the withholding of economic rights, in particular vitally important rights to work.436 The response of the Committee on Economic, Social and Cultural Rights to the challenges posed by the duty of progressive implementation and the potential reach of Art. 2(3) has been largely indirect. The Committee has adopted the construct of “core content” of particularly essential rights. This core content is effectively treated as an obligation of result.437 It has moreover read the duty of progressive implementation in tandem with the clear duty of non-discrimination to impose a duty to take affirmative steps to ensure at least the core content of Covenant rights to those who are most socially marginalized or most vulnerable – including “[d]ue to their precarious situation, asylum seekers and undocumented migrants.”438 The notion of core content of key rights was first elaborated by the Committee in 1990, as a creative application of empirical evidence to the progressive implementation standard:

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Despite the open-ended nature of the text of Art. 2(3), Chetail is right to note that the clause is permissive, not mandatory; may only be invoked by “developing countries”; applies only to economic, not to social and cultural, rights; may not be relied upon to justify breach of obligations under other treaties; and may only be resorted to for economic imperatives: Chetail, “Human Rights of Migrants,” at 249–251. More generally, he argues that the historical intention of the clause was quite narrow – namely to address the risk of continuing economic influence of non-nationals in newly independent states: ibid. at 248. While conceding the “admittedly significant limitations of the [Economic and Social] Covenant” and that it is “not clear what Art. 2(3) means,” Mathew nonetheless provides a thoughtful argument that vulnerable groups such as refugees ought not to be caught by the Art. 2(3) limitation, drawing on for example the historical concern that motivated the provision and the overarching human rights purpose of the clause: P. Mathew, Reworking the Relationship between Asylum and Employment (2012), at 104 and 109 ff. See also E. Lester, “Work, the Right to Work, and Durable Solutions: A Study on Sierra Leonean Refugees in The Gambia,” (2005) 17(2) International Journal of Refugee Law 331, at 350. A contrary view is, however, taken in McKean, Equality and Discrimination, at 201. “The essential minimum content of each right should be preserved in all circumstances and the corresponding duties extended to all people under the effective control of the State, without exception”: UN Committee on Economic, Social and Cultural Rights, “Duties of States towards Refugees and Migrants under the International Covenant on Economic, Social and Cultural Rights,” UN Doc. E/C.12/2017/1, Mar. 13, 2017, at [9]. “[T]hese standards oblige states to provide protection that has immediate effect. That is – at least on the face of it – that no excuses are acceptable in the view of the Committee for not so providing. Thus, for example, the Committee has made clear that security concerns, including (indeed, especially) in situations of conflict, are not justifiable reasons for the neglect of basic Convention rights”: Saul, ICESCR Commentary, at 152. UN Committee on Economic, Social and Cultural Rights, “Duties of States towards Refugees and Migrants under the International Covenant on Economic, Social and Cultural Rights,” UN Doc. E/C.12/2017/1, Mar. 13, 2017, at [5].

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On the basis of the extensive experience gained by the Committee, as well as by the body that preceded it, over a period of more than a decade of examining States parties’ reports, the Committee is of the view that a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights is incumbent upon every State party. Thus, for example, a State party in which any significant number of individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter and housing, or of the most basic forms of education is, prima facie, failing to discharge its obligations under the Covenant. If the Covenant were to be read in such a way as not to establish such a minimum core obligation, it would be largely deprived of its raison d’être.439

In other words, it is the Committee’s view that virtually no state – if it really did what the Covenant requires, namely give clear priority in resource allocation to the realization of economic, social, and cultural rights, and never to allocate those funds on a discriminatory basis – could fail to realize at least the most basic levels of these four, most vital rights.440 While a state can still justify its failure fully to implement Covenant rights by reference to Art. 2(1)’s duty of progressive implementation,441 the Committee has made clear that no state is immune from the duty to respect the core content of rights.442 Specifically, every state “must 439

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UN Committee on Economic, Social and Cultural Rights, “General Comment No. 3: The Nature of States Parties’ Obligations” (1990), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [10]. The Committee has reaffirmed its commitment to the notion of core rights. “Should a State party argue that resource constraints make it impossible to provide access to food for those who are unable by themselves to secure such access, the State has to demonstrate that every effort has been made to use all the resources at its disposal in an effort to satisfy, as a matter of priority, those minimum obligations. This follows from article 2.1 of the Covenant, which obliges a State party to take the necessary steps to the maximum of its available resources, as previously pointed out by the Committee in its General Comment No. 3, paragraph 10”: UN Committee on Economic, Social and Cultural Rights, “General Comment No. 12: The Right to Adequate Food” (1999), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [17]. See also UN Committee on Economic, Social and Cultural Rights, “General Comment No. 14: The Right to the Highest Attainable Standard of Health” (2000), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [43]: “In General Comment No. 3, the Committee confirms that States parties have a core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights enunciated in the Covenant, including essential primary health care. Read in conjunction with more contemporary instruments, such as the Programme of Action of the International Conference on Population and Development, the Alma-Ata Declaration provides compelling guidance on the core obligations arising from article 12.” “There is an unavoidable subjectivity in the command that a state utilize ‘the maximum of its available resources’”: Saul, ICESCR Commentary, at 143. In relation to the right to water, for example, the Committee has determined that “[t]o demonstrate compliance with their general and specific obligations, States parties must establish that they have taken the necessary and feasible steps towards the realization of the right to water. In accordance with international law, a failure to act in good faith to take

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demonstrate that every effort has been made to use all resources that are at its disposition in an effort to satisfy, as a matter of priority, those minimum obligations.”443 As Saul et al. explain, under the “core content” approach [i]t is not enough for a state to claim that such are its circumstances that even these minimum standards are beyond its capacity, for when such a claim is made, the burden of proof lies with the state itself to demonstrate why it is unable to shift whatever resources it does have (for example, from spending on the military to primary education, or from subsidizing privileged elites to funding basic medical and sanitation services for all).444

Equally important, the Committee has more recently explicitly determined that these core obligations “apply even for the benefit of individuals who are part of a large group of refugees or migrants suddenly falling under the jurisdiction of the States concerned.”445 The core content approach thus clearly mitigates the risks for refugees of reliance on general guarantees of socioeconomic rights under international human rights law, though still not rising to the level of the absolute if less exigent cognate duties set by the Refugee Convention.446 In sum, it is clear that while general human rights are a critical component of the modern understanding of refugee rights, they in no sense supplant the Refugee Convention’s rights regime.447 Indeed, because general human rights need only be

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such steps amounts to a violation of the right. It should be stressed that a State party cannot justify its non-compliance with the core obligations . . . which are non-derogable”: UN Committee on Economic, Social and Cultural Rights, “General Comment No. 15: The Right to Water” (2002), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [40]. UN Committee on Economic, Social and Cultural Rights, “General Comment No. 3: The Nature of States Parties’ Obligations” (1990), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [10]. But “[a]lthough the concept of ‘minimum core obligations’ may provide an intellectual framework with which one might be able to establish objective standards against which the states’ efforts to protect economic, social and cultural rights can be measured, it still lacks precision, or even easy application in practice”: Saul, ICESCR Commentary, at 147. Saul, ICESCR Commentary, at 147. UN Committee on Economic, Social and Cultural Rights, “Duties of States towards Refugees and Migrants under the International Covenant on Economic, Social and Cultural Rights,” UN Doc. E/C.12/2017/1, Mar. 13, 2017, at [4]. More specifically, “they would not in principle be justified in restricting the enjoyment of the essential content of the Covenant rights on the basis of a lack of resources, even when confronted with a sudden and quantitatively significant flow of refugees”: ibid. at [10]. Thus, even as he makes the case for reliance on general human rights law to protect migrants, Chetail observes that whatever the import of Art. 2(3) of the Economic, Social and Cultural Covenant, “it cannot be used to avoid articles 17, 18, and 19 of the Refugee Convention governing access to employment”: Chetail, “Human Rights of Migrants,” at 249–250. Chetail thus overclaims when he argues that “human rights law is the primary source of protection, while the [Refugee] Convention is bound to play a complementary and secondary role”: Chetail, “Are Refugee Rights Human Rights?,” at 22. The better view is

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guaranteed to refugees and other non-citizens “without discrimination” rather than absolutely, the ability of refugees directly to invoke human rights law is circumscribed by the rather sad international jurisprudence on the meaning of non-discrimination, a topic considered in the next part. In far too many respects, the failure to embrace a robust understanding of non-discrimination means that the net value of general human rights law to refugees is more apparent than real.

1.5.5 Duty not to Discriminate against Non-citizens, including Refugees In general terms, the duty of non-discrimination is an overarching principle governing the allocation of a wide array of, in particular, public goods. Fredman helpfully suggests that the common core of non-discrimination law is to ensure “that individuals should be judged according to their personal qualities. This basic tenet is contravened if the treatment accorded to individuals is based on their status, their group membership, or irrelevant physical characteristics.”448 This core understanding of non-discrimination thus requires simply that irrelevant criteria not be taken into account in making allocations: it is essentially a fairly formal prohibition of arbitrariness, which requires that any unequal treatment be “properly justified, according to consistently applied, persuasive and acceptable criteria.”449 It follows, of course, that not every differential allocation is discriminatory: the concern is to draw a line between invidious (discriminatory) and socially acceptable (non-discriminatory) distinctions.450 While this can be a vexing question, international human rights law normally stipulates grounds on which distinctions are presumptively arbitrary, including where allocations are based on forms of status or personal characteristics which are either immutable or fundamental to one’s identity. Because decisions predicated on such criteria are clearly prone to stereotypical and hence arbitrary assumptions, they undermine the duty to consider individuals on their own merits. Non-discrimination may also be conceived in a way that moves the principle beyond simply a prohibition of allocations shown to be based on irrelevant or otherwise arbitrary criteria (which requires often difficult, if not

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that neither refugee law nor general human rights law is sufficient fully to meet the needs of refugees, and that each plays a critical or primary role in relation to some components of the protection paradigm. S. Fredman, Discrimination Law (2011) (Fredman, Discrimination), at 109. C. McCrudden, “Equality and Non-Discrimination,” in D. Feldman ed., English Public Law 499 (2009) (McCrudden, “Equality”), at [11.61]. “[W]e must try to develop ‘discrimination’ as a separate independent legal concept. To call all possible instances of unequal treatment . . . ‘discrimination’ would deprive that word of its very raison d’être”: E. Vierdag, The Concept of Discrimination in International Law, with a Special Reference to Human Rights (1973) (Vierdag, Concept of Discrimination), at 51.

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impossible, comparative assessments) to include also a prohibition of conduct which in effect, even if not by design, results in an arbitrary allocation at odds with the duty to ensure that individuals are treated in accordance with their particular merits. As Fredman writes, “equal treatment is not in itself sufficient to address inequality in society. Equal treatment may well lead to unequal results.”451 Most important, non-discrimination may also be understood to be not only a prohibition of arbitrary allocations – whether by design, or as measured by effects – but also an affirmative guarantee of equal opportunity. Under such an understanding, non-discrimination requires public authorities “to do more than ensure the absence of discrimination . . . [they] must also act positively to promote equality of opportunity between different groups.”452 The core guarantee of non-discrimination in international human rights law is that found in Art. 26 of the Civil and Political Covenant.453 This unique and broadly applicable guarantee of non-discrimination provides that: All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.454

While there are many other guarantees of non-discrimination – for example, Art. 2 in each of the Human Rights Covenants, and Art. 3 of the Refugee Convention – Art. 26 is unique in that its ambit is not limited to the allocation of simply the rights found in any one instrument. Art. 26 rather governs the allocation of all public goods, including rights not stipulated by the Covenant itself. As summarized in General Comment No. 18 of the Human Rights Committee, [A]rticle 26 does not merely duplicate the guarantee already provided for in article 2 [of the Civil and Political Covenant] but provides in itself an autonomous right. It prohibits discrimination in law or in fact in any field regulated and protected by public authorities. Article 26 is therefore concerned with the obligations imposed on States parties in regard to their legislation and the application thereof. Thus, when legislation is adopted by a State party, it must comply with the requirement of article 451 453

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Fredman, Discrimination, at 177. 452 McCrudden, “Equality,” at [11.156]. See generally J. Pobjoy, “Treating Like Alike: The Principle of Non-Discrimination as a Tool to Mandate the Equal Treatment of Refugees and Beneficiaries of Complementary Protection,” (2010) 34 Melbourne University Law Review 181 (Pobjoy, “Treating Like Alike”), analyzing article 26 of the Civil and Political Covenant as a valuable tool in protecting the rights of highly vulnerable individuals. Civil and Political Covenant, at Art. 26.

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26 that its content should not be discriminatory. In other words, the application of the principle of non-discrimination contained in article 26 is not limited to those rights which are provided for in the Covenant.455

The first branch of Art. 26 – equality before the law – is a relatively formal prohibition of negative conduct: it requires simply that there be no discrimination in the enforcement of existing laws. It is thus unsurprising that several delegates to the Third Committee of the General Assembly argued that this guarantee of procedural non-discrimination, standing alone, was insufficient. For example, the representative of the Philippines observed that the obligation to ensure equality before the law would not preclude states from “providing for separate but equal facilities such as housing, schools and restaurants for different groups.”456 The Polish delegate agreed, pointing out that even much South African apartheid-era legislation could be reconciled to a guarantee of equality before the law.457 These concerns suggested the need for a duty of non-discrimination addressed not just to the process of law enforcement, but to the substance of laws themselves. The precedent drawn upon by the drafters of the Civil and Political Covenant was the principle advanced in the Universal Declaration of Human Rights of a right to equal protection of the law.458 As reframed in the Covenant, the equal protection component of Art. 26 is an extraordinarily inclusive obligation, requiring that “the legislature must refrain from any discrimination when enacting laws . . . [and] must also prohibit discrimination by enacting special laws and to afford effective protection against discrimination [emphasis added].”459 While commentators are not unanimous in their interpretation of Art. 26,460 both the literal text of this article and an appreciation of its drafting 455

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UN Human Rights Committee, “General Comment No. 18: Non-discrimination” (1989), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at 146, [12]. This principle has been affirmed in the jurisprudence of the Human Rights Committee, including, for example, in Pepels v. Netherlands, HRC Comm. No. 484/1991, UN Doc. CCPR/C/51/D/484/1991, decided July 15, 1994, at [7.2]; and Pons v. Spain, HRC Comm. No. 454/1991, UN Doc. CCPR/C/ 55/D/454/1991, decided Oct. 30, 1995, at [9.3]. In Teesdale v. Trinidad and Tobago, HRC Comm. No. 677/1996, UN Doc. CCPR/C/74/D/677/1996, decided Apr. 1, 2002, for example, the Committee “recall[ed] its established jurisprudence that article 26 of the Covenant prohibits discrimination in law and in fact in any field regulated and protected by public authorities”: ibid. at [9.8]. It thus held that it had the authority to determine whether the President exercised his authority to commute the death penalty in a discriminatory way. UN Doc. A/C.3/SR.1098, at [25]. 457 UN Doc. A/C.3/SR.1101, at [21]. “All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination”: Universal Declaration, at Art. 7. Schabas, Nowak’s CCPR Commentary, at 749. A narrow view of the scope of Art. 26 is argued by Vierdag, who concludes that “[t]he starting point was, and remained, to provide a guarantee of ‘equality before the law.’ All

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history suggest that this provision was designed to be an extraordinarily robust guarantee of non-discrimination including, in particular, an affirmative duty to prohibit discrimination and effectively to protect all persons from discrimination.461 Refugees and other non-citizens are entitled to invoke Art. 26’s duty to avoid arbitrary allocations and its affirmative duty to bring about non-arbitrary allocations since the Human Rights Committee has determined “that each one of the rights of the Covenant must be guaranteed without discrimination between citizens and aliens,”462 a principle explicitly determined to extend to refugees and asylum-seekers.463 Because the second branch of Art. 26 – the duty to ensure “equal protection of the law” – may reasonably be read to set an obligation to take the steps needed to offset the disadvantages which involuntary alienage creates for the enjoyment of rights,464 it might even be thought

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later additions were proposed and adopted with the strengthening of this principle in mind”: Vierdag, Concept of Discrimination, at 126. Schabas, Nowak’s CCPR Commentary, at 742–745. It is true that the provision was originally drafted as no more than a guarantee of “equality before the law,” and that the second sentence’s prohibition of discrimination was amended to reinforce this purpose by linking the duty of non-discrimination to the goal of equality before the law through insertion of the words “[i]n this respect.” But an intervening amendment expanded the scope of the first sentence’s guarantee to include also the sweeping notion of “equal protection of the law.” In the result, the correlative phrase “[i]n this respect” is logically read to require the prohibition of discrimination and the effective protection against discrimination in both senses stipulated in the first sentence, namely equality before the law and equal protection of the law. “[B]ecause of the adoption of the Indian amendment, the passage ‘in this respect’ no longer related only to equality before the law but also to equal protection of the law. That this involved two completely different aspects of the principle of equality was made unmistakably clear by the Indian delegate”: ibid. at 745. UN Human Rights Committee, “General Comment No. 15: The Position of Aliens under the Covenant” (1986), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at 140, [2]. In the Committee’s decision of Karakurt v. Austria, HRC Comm. No. 965/2000, UN Doc. CCPR/ C/74/D/965/2000, decided Apr. 4, 2002, two members of the Committee took the opportunity to affirm that “[i]n [their] view distinctions based on citizenship fall under the notion of ‘other status’ in article 26”: ibid. at Individual Opinion of Members Rodley and Scheinen. The Committee on Economic, Social and Cultural Rights has similarly determined that “nationality” is a form of “other status” for purposes of protection against discrimination under Art. 2 of the Economic and Social Covenant: UN Committee on Economic, Social and Cultural Rights, “General Comment No. 20: Non-discrimination in Economic, Social and Cultural Rights” (2009), UN Doc. E/C.12/GC/20, at [27], [30]. UN Human Rights Committee, “General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant” (2004), UN Doc. HRI/GEN/ 1/Rev.7, May 12, 2004, 192, at [10]; see also UN Committee on Economic, Social and Cultural Rights, “General Comment No. 20: Non-discrimination in Economic, Social and Cultural Rights” (2009), UN Doc. E/C.12/GC/20, at [30]. In Nahlik v. Austria, HRC Comm. No. 608/1995, UN Doc. CCPR/C/57/D/608/1995, decided July 22, 1996, the Committee was faced with an objection by Austria that “the communication [was] inadmissible . . . since it relates to alleged discrimination within

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that Art. 26 would be a sufficient basis to require asylum states to bring an end to any laws or practices that set refugees apart from the rest of their community.465

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a private agreement, over which the State party has no influence. The Committee observes that under articles 2 and 26 of the Covenant the State party is under an obligation to ensure that all individuals within its territory and subject to its jurisdiction are free from discrimination, and consequently the courts of States parties are under an obligation to protect individuals against discrimination, whether this occurs within the public sphere or among private parties in the quasi-public sector of, for example, employment”: ibid. at [8.2]. In Waldman v. Canada, HRC Comm. No. 694/1996, UN Doc. CCPR/C/67/D/694/ 1996, decided Nov. 3, 1999, the Human Rights Committee observed that “[t]he material before the Committee does not show that members of the Roman Catholic community or any identifiable section of that community are now in a disadvantaged position compared to those members of the Jewish community that wish to secure the education of their children in religious schools. Accordingly, the Committee rejects the State party’s argument that the preferential treatment of Roman Catholic schools is nondiscriminatory because of its Constitutional obligation”: ibid. at [10.4] – implying that differentiation which was directed to combating disadvantage would not likely be found to be discriminatory. Such a construction is in line with the jurisprudence of many developed states with respect to comparably framed domestic guarantees of non-discrimination. “What is required by Congress is the removal of artificial, arbitrary, unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification”: Griggs v. Duke Power Co., 401 US 424 (US SC, Mar. 8, 1971), at 430–431. “At the heart of the prohibition of unfair discrimination lies a recognition that the purpose of our new constitutional and democratic order is the establishment of a society in which all human beings will be accorded equal dignity and respect regardless of their membership of particular groups”: President of the Republic of South Africa v. Hug CCT, (1997) 4 SA 1 (SA CC, Apr. 8, 1997). But in Sahak v. Minister for Immigration and Multicultural Affairs, [2002] FCAFC 215 (Aus. FFC, July 18, 2002), the Full Federal Court of Australia was called upon to consider whether there was a breach of the duty of non-discrimination contained in Art. 5 of the International Convention on the Elimination of All Forms of Racial Discrimination, 60 UNTS 195 (UNTS 9464), adopted Dec. 21, 1965, entered into force Jan. 4, 1969 (Racial Discrimination Convention). Under Art. 5, states “undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, color, or national or ethnic origin, to equality before the law, notably in the enjoyment of . . . [t]he right to equal treatment before the tribunals and all other organs administering justice”: ibid. at Art. 5(a). The claim involved persons seeking recognition of their refugee status who did not speak English, and who were detained in a facility with only limited availability of interpreters. They had done everything in their power to meet the twenty-eight-day deadline for applying for judicial review of the rejection of their refugee claims but could not comply because of lack of documentation, interpreters, and lawyers in the detention facility. Their argument that the judicial review rules amounted, in effect, to race-based discrimination was, however, rejected on the formal grounds that “the Act does not deprive persons of one race of a right [to judicial review] that is enjoyed by another race, nor does it provide for differential operation depending on the race, color, or national or ethnic origin of the relevant applicant. For example, persons whose national origin is Afghani or Syrian are able to take advantage of the relevant right if their comprehension of the English language is sufficient, or if they have access to friends or professional interpreters so as to overcome the language

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Despite the extraordinary potential of Art. 26, it is nonetheless unlikely in practice to prove a sufficient mechanism for the full enfranchisement of refugees. This is because Art. 26, like common Art. 2 of the Covenants, does not establish a simple guarantee of equal protection of the law for refugees or any other group.466 While initially proposed as such, the right as ultimately adopted is in fact an entitlement “without any discrimination to the equal protection of the law [emphasis added].”467 To give effect to this formulation, the Human Rights Committee inquires whether a differential allocation of rights is “reasonable and objective.”468 If the differentiation is found to meet

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barrier . . . Any differential effect . . . is not based on race, color, descent or national or ethnic origin, but rather on the individual personal circumstances of each applicant.” North J., in dissent, opted for an effects-based understanding of the duty of nondiscrimination, writing that “to say that any differential impact is suffered not because of national origin, but rather as a result of individual personal circumstances, appears to me to adopt a verbal formula which avoids the real and practical discrimination.” Invoking the decision of the US Supreme Court in Griggs v. Duke Power Co., 401 US 424 (US SC, 1971), at 430–431, he concluded that “[t]o approach anti-discrimination provisions in [a formal, intent-based] way would rob them of much of their intended force.” “[I]nequality does not equate to discrimination. Equal and unequal treatment certainly function as the basis for consideration of whether particular treatment constitutes discrimination. But something more is required before unequal treatment (or, in some circumstances, equal treatment) will amount to discrimination”: Pobjoy, “Treating Like Alike,” at 197. But see T. Clark and J. Niessen, “Equality Rights and Non-Citizens in Europe and America: The Promise, the Practice, and Some Remaining Issues,” (1996) 14(3) Netherlands Quarterly of Human Rights 245, in which it is argued that the duty of nondiscrimination requires the minimization of distinctions between aliens and nationals. The original amendment of India to add to the first sentence the words “and are entitled to equal protection of the law” (UN Doc. A/C.3/L.945) was sub-amended by a proposal of Argentina and Chile (UN Doc. A/C.3/L.948) to insert between the words “are entitled” and “to equal protection of the law” the words “without any discrimination”: UN Doc. A/ 5000, at [103] (1961). As Pobjoy observes, “[t]he ‘reasonable and objective’ standard . . . should not be viewed as an exception to the prohibition on discrimination. Rather, the standard is built into the concept of discrimination itself”: Pobjoy, “Treating Like Alike,” at 208. For example, the Committee determined in Broeks v. Netherlands, HRC Comm. No. 172/1984, decided Apr. 9, 1987, at [13], that “[t]he right to equality before the law and to equal protection of the law without any discrimination does not make all differences of treatment discriminatory. A differentiation based on reasonable and objective criteria does not amount to prohibited discrimination within the meaning of article 26.” See also Danning v. Netherlands, HRC Comm. No. 180/1984, decided Apr. 9, 1987; and Zwaan-de Vries v. Netherlands, HRC Comm. No. 182/1984, decided Apr. 9, 1987. At one point, the test appeared to have been watered down to a simple assessment of “reasonableness.” In Simunek et al. v. Czech Republic, HRC Comm. No. 516/1992, UN Doc. CCPR/C/54/D/516/1992, decided July 19, 1995, the Committee held that “[a] differentiation which is compatible with the provisions of the Covenant and is based on reasonable grounds does not amount to prohibited discrimination within the meaning of article 26”: ibid. at [11.5]. But since that decision the traditional “reasonable and objective” formulation has nonetheless been affirmed: see e.g. Oord v. Netherlands, HRC Comm. No. 658/1995, UN Doc. CCPR/C/60/D/658/1995, decided July 23, 1997, at [8.5]; Foin v. France, HRC Comm. No. 666/1995, UN Doc.

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this test, it is not discriminatory and there is accordingly no duty either to desist from differentiation or to take positive steps to equalize opportunity under Art. 26. Three particular trends in the application of the “reasonable and objective” standard work against the interests of refugees and other non-citizens.469 First, the Committee has too frequently been prepared to recognize differentiation on the basis of certain grounds, including non-citizenship, as presumptively reasonable. Second, the Human Rights Committee routinely affords governments an extraordinarily broad margin of appreciation rather than engaging in careful analysis of both the logic and extent of the differential treatment. And third, the Committee has paid insufficient attention to evidence that generally applicable standards may impact differently on differently situated groups, thereby failing to do justice to a substantive understanding of the right to equal protection of the law.470

1.5.5.1

Categorical Approval of Differentiation based on Citizenship Turning to the first concern, some categorical bases for differentiation seem simply to be assumed to be reasonable by the Human Rights Committee. The Committee, for example, apparently feels that it is self-evidently reasonable to deny unmarried spouses the social welfare rights granted to married spouses,471 or

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CCPR/C/67/D/666/1995, decided Nov. 3, 1999, at [10.3]; Waldman v. Canada, HRC Comm. No. 694/1996, UN Doc. CCPR/C/67/D/694/1996, decided Nov. 3, 1999, at [10.4]; and Wackenheim v. France, HRC Comm. No. 854/1999, UN Doc. CCPR/C/67/ D/854/1999, decided July 15, 2002, at [7.4]. An additional concern follows from a decision in which the Committee refused to find gender-based discrimination in Russia’s decision to exempt women but not men from the death penalty. The determination was that because “all measures of abolition should be considered as progress . . . the Committee considers that this exemption from the death penalty cannot constitute differential treatment contrary to article 26” – clearly a nonsensical proposition that does not even address issues of discrimination on the merits: Marz v. Russian Federation, HRC Comm. No. 1425/2005, UN Doc. CCPR/C/97/D/ 1425/2005, decided Oct. 21, 2009, at [5.5]. “Fair equality of opportunity differs from the simple non-discrimination principle . . . in being positive as well as negative in its requirements and in taking into account some of the prior existing disadvantages . . . The two principles differ also in the conception of the social processes of inequality on which they tend to be grounded. A demand for fair equality of opportunity is more often than not based on a recognition of the structural sources of unequal opportunity and in particular on an acceptance of what has become known as ‘institutional discrimination.’ Finally, fair equality of opportunity, again unlike the simple non-discrimination principle, requires questions to be asked not only about the precise basis on which the good being distributed is deserved but also about the nature of the good being distributed”: C. McCrudden, “Institutional Discrimination,” (1982) 2(3) Oxford Journal of Legal Studies 303, at 344–345. “[T]he decision to enter into a legal status by marriage, which provides, in Netherlands law, both for certain benefits and for certain duties and responsibilities, lies entirely with the cohabiting persons. By choosing not to enter into marriage, Mr. Danning and his

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to withhold general guarantees of legal due process from military conscripts.472 The majority of the Human Rights Committee has also adopted the view that distinctions based on advanced age are inherently non-discriminatory. In assessing a staff restructuring plan in which age was per se a factor for redundancy, the Committee determined that “the age limit used . . . for continued post occupancy was an objective distinguishing criterion.”473 Indeed, the Human Rights

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cohabitant have not, in law, assumed the full extent of the duties and responsibilities incumbent on married couples. Consequently, Mr. Danning does not receive the full benefits provided for in Netherlands law for married couples [emphasis added]”: Danning v. Netherlands, HRC Comm. No. 180/1984, decided Apr. 9, 1987, at [14]. See also Sprenger v. Netherlands, HRC Comm. No. 395/1990, UN Doc. CCPR/C/44/D/395/ 1990, decided Mar. 31, 1992. The use of the conjunction “consequently” erroneously suggests a logical nexus between the absence of the legal duties and responsibilities of married spouses and ineligibility for social welfare benefits. Whatever reasonable differentiation may be made between married and unmarried cohabitants, the needs of couples of both classes for income support consequent to the disability of one partner are not obviously distinct. The Human Rights Committee did not, however, even consider this question. The Committee has affirmed this approach in its decision of Derksen v. Netherlands, HRC Comm. No. 976/2001, UN Doc. CCPR/C/80/D/1976/2001, decided Apr. 1, 2004, at [9.2]; and in X v. Colombia, HRC Comm. No. 1361/2005, UN Doc. CCPR/ C/89/D/1361/2005, decided Mar. 30, 2007, at [7.2]. “He merely alleges that he is being subjected to different treatment during the period of his military service because he cannot appeal against a summons like a civilian. The Committee observes that the Covenant does not preclude the institution of compulsory military service by States parties, even though this means that the rights of individuals may be restricted during military service, within the exigencies of such service [emphasis added]”: RTZ v. Netherlands, HRC Comm. No. 245/1987, decided Nov. 5, 1987, at [3.2]. See also MJG v. Netherlands, HRC Comm. No. 267/1987, decided Mar. 24, 1988; and Brinkhof v. Netherlands, HRC Comm. No. 402/1990, UN Doc. CCPR/C/48/D/402/1990, decided July 27, 1993, at [6.2]. While the Committee suggests that military status “means” that due process rights may be restricted, it is incredible that the Human Rights Committee would not even ask why it was necessary to deprive all conscripts of their general legal right to contest a summons. Hinostroza Solís v. Peru, HRC Comm. No. 1016/2001, UN Doc. CCPR/C/86/D/1016/2001, decided Mar. 27, 2006, at [6.4]. The dissenting members correctly observed that “this is tantamount to saying that age as such is an objective and reasonable criteri[on] for deciding who would have to leave the public service”: ibid. at Appendix, [1]. In an earlier case involving an allegation of age discrimination in the context of a mandatory retirement requirement for commercial airline pilots, the Committee observed that “it is by no means clear that mandatory retirement age would generally constitute age discrimination. The Committee takes note of the fact that systems of mandatory retirement age may include a dimension of workers’ protection by limiting the life-long working time, in particular when there are comprehensive social security schemes that secure the subsistence of persons who have reached such an age. Furthermore, reasons related to employment policy may be behind legislation or policy on mandatory retirement age . . . In the present case, as the State party notes, the aim of maximising safety to passengers, crew and persons otherwise affected by flight travel was a legitimate aim under the Covenant . . . In the circumstances, the Committee cannot conclude that the distinction made was not, at the time of Mr Love’s dismissal, based on objective and reasonable considerations:” Love

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Committee more recently appeared to approve of the view that “the loss of reflexes and memory that might have an adverse effect on the effectiveness of staff” was “not . . . irrational” as a basis for imposing an automatic and non-discretionary mandatory retirement age on civil servants474 – with no concern expressed that the termination of groups of persons on the basis of assumed, rather than demonstrated, incapacity is at odds with the core purpose of nondiscrimination law, that being to ensure that individuals are treated in line with their particular capacities rather than on the basis of group-based assumptions. There is reason for concern that differentiation based on lack of citizenship might similarly be assumed to be reasonable. During the drafting of the Covenant, several delegates, including the Indian representative who spearheaded the drive to include the guarantee of equality before the law, made it clear that they were not suggesting that all distinctions between nationals and aliens be eradicated.475 The non-discrimination clause was said not to prohibit measures to control aliens and their enterprises, particularly since Art. 1 of the Covenant guarantees the right of peoples to permanent sovereignty over their natural wealth and resources.476 An effort to confine Art. 26’s protection against discrimination to “citizens” rather than to “all persons” was not adopted,477 but this decision was predicated on a general agreement that it is sometimes reasonable to distinguish between citizens and aliens.478 The critical point is that the drafters of the Civil and Political Covenant recognized that states enjoy latitude to allocate some rights differentially on the basis of citizenship, without thereby running the risk of engaging in discriminatory conduct of the kind prohibited by Art. 26, or by common Art. 2 of the Covenants. It remains unclear whether the Human Rights Committee’s jurisprudence will deem differentiation based on citizenship to be objective and reasonable. On the one hand, the Committee has adopted the view that where particular categories of non-citizens are treated differently (both from each other, and

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v. Australia, HRC Comm. No. 983/2001, UN Doc. CCPR/C/77/D/983/2001, decided Mar. 25, 2003, at [8.2]–[8.3]. While of course questions such as workers’ protection and safety are relevant to whether age differentiation is reasonable and objective in a given case, the preparedness of the Committee categorically to assume that such concerns arise in all cases is disturbing. Albareda et al. v. Uruguay, HRC Comm. No. 1637/2007, UN Doc. CCPR/C/103/D/1637/ 2007, decided Oct. 4, 2011, at [9.3]–[9.4]. See UN Docs. E/CN.4/SR.122, at 5–7; E/CN.4/SR.173, at [46], [67], and [76]; and E/CN.4/ SR.327, at 7. Statement of the Representative of France, UN Doc. E/CN.4/SR.173, at [19]. This oral proposal by the Representative of Indonesia (UN Doc. A/C.3/SR.1102, at [48]) was ultimately withdrawn. See UN Docs. A/C.3/SR.1098, at [10], [55]; A/C.3/SR.1099, at [18], [26], [31], [36]; A/C.3/ 1100, at [10]; A/C.3/SR.1101, at [40], [43], [53]; A/C.3/SR.1102, at [17], [24], [27], [29], [51].

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from citizens) by virtue of the terms of a bilateral treaty based on reciprocity, the treaty-based origin of the distinction can justify a general finding that it is based on objective and reasonable grounds, and is therefore nondiscriminatory.479 The Committee’s decisions also display a worrisome tendency to see procedural distinctions based on nationality to be outside the bounds of discrimination. For example, in assessing the propriety of Danish law excluding only the Refugee Board from the general rule that all administrative tribunal decisions may be appealed to the courts, the Committee summarily dismissed the claim of due process discrimination against noncitizens seeking asylum as “insufficiently substantiated.”480 It similarly refused to find discrimination in the context of an Australian law excluding noncitizens from the general rule that persons subject to an adverse security assessment be provided with reasons for that assessment.481 In contrast to these precedents, the Committee has also taken the view that a categorical approach to deeming differentiation based upon nationality to be reasonable cannot routinely be justified: Although the Committee had found in one case . . . that an international agreement that confers preferential treatment to nationals of a State party to that agreement might constitute an objective and reasonable ground for differentiation, no general rule can be drawn therefrom to the effect that such an agreement in itself constitutes a sufficient ground with regard to the requirements of article 26 of the Covenant.482

These observations were made in a case challenging Austria’s assertion that the applicant’s status as a non-citizen of Austria or the European Economic Area 479

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“The Committee observes . . . that the categories of persons being compared are distinguishable and that the privileges at issue respond to separately negotiated bilateral treaties which necessarily reflect agreements based on reciprocity. The Committee recalls its jurisprudence that a differentiation based on reasonable and objective criteria does not amount to prohibited discrimination within the meaning of article 26”: Oord v. Netherlands, HRC Comm. No. 658/1995, UN Doc. CCPR/C/60/D/658/1995, decided July 23, 1997, at [8.5]. See also Shergill et al. v. Canada, HRC Comm. No. 1506/2006, UN Doc. CCPR/C/94/D/1506/2006, decided Oct. 30, 2008, at [3.2], [7.6]. Mr. X and Ms. X v. Denmark, HRC Comm. No. 2186/2012, UN Doc. CCPR/C/112/D/ 2186/2012, decided Oct. 22, 2014, at [6.3]. Leghaie v. Australia, HRC Comm. No. 1937/2010, UN Doc. CCPR/C/113/D/1937/2010, decided Mar. 26, 2015. The technical objection relied upon by the Committee (ibid. at [9.3]) – that the author had failed to exhaust domestic remedies – is unconvincing since Australian law provided a remedy only for persons alleging discrimination on grounds of a “particular” nationality, not on the basis of non-citizenship in general (ibid. at [7.6]). Karakurt v. Austria, HRC Comm. No. 965/2000, UN Doc. CCPR/C/74/D/965/2000, decided Apr. 4, 2002, at [8.4]. While an Austrian reservation was found to prevent the Committee from examining the issue of distinctions between non-nationals and Austrians, the Committee considered the question of whether distinctions as among categories of non-nationals – specifically, treating European Economic Area citizens differently than other non-citizens – was a form of prohibited discrimination.

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barred him from holding a post on a work council to which he had been elected. In addressing the complaint of discrimination based on nationality, the Committee determined that it is necessary to judge every case on its own facts. With regard to the case at hand, the Committee has to take into account the function of a member of a work council, i.e., to promote staff interests and to supervise compliance with work conditions . . . In view of this, it is not reasonable to base a distinction between aliens concerning their capacity to stand for election for a work council solely on their different nationality. Accordingly, the Committee finds that the author has been the subject of discrimination in violation of article 26.483

While less than a clear commitment to tackling discrimination based on nationality, this approach evinces at least some willingness to engage the issue. The most that can be said, then, is that the Human Rights Committee seems to take the view that while it may in some cases be reasonable to exclude noncitizens as a category from the enjoyment of rights, there are other situations in which citizenship (or lack thereof) cannot be deemed a valid ground of categorical differentiation. Until and unless the jurisprudence of the Human Rights Committee assesses the propriety of categorical differentiation based on citizenship across a broader range of issues, it will therefore be difficult to know which forms of exclusion are likely to be found valid, and which will be seen to breach Art. 26.

1.5.5.2

Unwarranted Deference to State Assertions of Reasonableness A second and more general concern about the Human Rights Committee’s approach to non-discrimination law is its tendency simply to assume the reasonableness of many state-sanctioned forms of differentiation. In two early cases against Sweden involving the denial of financial assistance for school meals and textbooks to children attending private schools, the Human Rights Committee found no reason to uphold the claims of discrimination on the grounds that the government might “reasonably and objectively” 483

Ibid. The unwillingness to assume nationality to be a valid ground for differential treatment is clear also from an earlier decision of the Committee in response to a complaint brought by 743 Senegalese nationals who had served in the French army prior to independence in 1960. The Committee found that French legislation that froze their military pensions on the grounds of nationality (while simultaneously allowing for increases to the pensions of comparably situated retired soldiers of French citizenship) was not based on objective and reasonable criteria, and was therefore discriminatory. It observed that “[t]here has been a differentiation by reference to nationality acquired upon independence. In the Committee’s opinion, this falls within the reference to ‘other status’ in the second sentence of article 26”: Gueye v. France, HRC Comm. No. 196/1985, decided Apr. 3, 1989, at [9.4].

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choose to treat public and private schools (not students) differently.484 The Committee observed that students who wish to receive the benefits should exercise their option to attend a public school. Yet surely if “reasonableness” has any significance in the context of discrimination analysis, it should be to direct attention to whether or not the differential rights allocation is made on the basis of real differences of need between the persons affected – here, the students attending the private schools and those in public schools. There is, however, no evidence that the Committee even canvassed this issue, much less that it found some reason implicitly to declare that all students in attendance at a private school are by virtue of that status in no need of personal financial assistance. The Committee’s propensity to defer to state-sanctioned differentiation has unfortunately not abated. For example, the Committee rejected claims of discrimination based on an assumption of reasonable differentiation where social welfare benefits were calculated based on a presumption of greater support from cohabiting family members than from non-related cohabitants;485 where active and retired employees who were similarly situated economically were treated differently for purposes of pension calculation;486 where compensation was paid to military personnel, but not to civilians, who were detained by enemy soldiers 484

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In Blom v. Sweden, HRC Comm. No. 191/1985, decided Apr. 4, 1988, the Committee declared that “[i]n deciding whether or not the State party violated article 26 by refusing to grant the author, as a pupil of a private school, an education allowance for the school year 1981/82, whereas pupils of public schools were entitled to education allowances for that period, the Committee bases its findings on the following observations. The State party’s educational system provides for both private and public education. The State party cannot be deemed to act in a discriminatory fashion if it does not provide the same level of subsidy for the two types of establishment, when the private system is not subject to State supervision [emphasis added]”: ibid. at [10.2]–[10.3]. That the Committee failed to grapple with the issue of whether there was truly a difference in the needs of the two categories of students is readily apparent from its reference to the legitimacy of withholding funds from one of two kinds of establishment. “In the light of the explanations given by the State party, the Committee finds that the different treatment of parents and children and of other relatives respectively, contained in the regulations under the Social Security Act, is not unreasonable nor arbitrary, and its application in the author’s case does not amount to a violation of article 26 of the Covenant”: Neefs v. Netherlands, HRC Comm. No. 425/1990, UN Doc. CCPR/C/51/D/ 425/1990, decided July 15, 1994, at [7.4]. “In the instant case, the contested differentiation is based only superficially on a distinction between employees who retired before 1 January 1992 and those who retired after that date. Actually, this distinction is based on a different treatment of active and retired employees at the time. With regard to this distinction, the Committee considers that the author has failed to substantiate, for purposes of admissibility, that the distinction was not objective or how it was arbitrary or unreasonable. Therefore, the Committee concludes that the communication is inadmissible”: Nahlik v. Austria, HRC Comm. No. 608/1995, UN Doc. CCPR/C/57/D/608/1995, decided July 22, 1996, at [8.4].

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during wartime;487 where a legal aid system funded counsel for the civil defendant in a criminal case at nearly three times the rate paid to counsel for the plaintiff;488 where the government elected to bar only one of several forms of employment understood to be inconsistent with respect for human dignity, with severe economic consequences for the former employees;489 where a state’s law codified a presumption that military officers of a predecessor state presented a risk to national security and were therefore ineligible for citizenship;490 where a government excluded 487

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“As regards the claim that the exclusion of civilian detainees from entitlements under the War Pensions Act is discriminatory, the Committee notes from the information before it that the purpose of the Act is specifically to provide pension entitlements for disability and death of those who were in the service of New Zealand in wartime overseas, not to provide compensation for incarceration or for human rights violations. In other words if disability arises from war service it is irrelevant to the entitlement to a pension whether the person suffered imprisonment or cruel treatment by captors. Keeping in mind the Committee’s prior jurisprudence according to which a distinction based on objective and reasonable criteria does not constitute discrimination within the meaning of article 26 of the Covenant, the Committee considers that the authors’ claim is incompatible with the provisions of the Covenant and thus inadmissible”: Drake v. New Zealand, HRC Comm. No. 601/1994, UN Doc. CCPR/C/59/D/601/1994, decided Apr. 3, 1997, at [8.5]; see also Rizvanović et al. v. Bosnia and Herzegovina, HRC Comm. No. 1997/2010, UN Doc. CCPR/ C/110/D/1997/2010, decided Mar. 21, 2014, at [3.9]. “The Committee recalls that differences in treatment do not constitute discrimination, when they are based on objective and reasonable criteria. In the present case, the Committee considers that representation of a person presenting a civil claim in a criminal case cannot be equalled to representing the accused. The arguments advanced by the author and the material he provided do not substantiate, for purposes of admissibility, the author’s claim that he is a victim of discrimination”: Lestourneaud v. France, HRC Comm. No. 861/1999, UN Doc. CCPR/C/67/D/861/1999, decided Nov. 3, 1999, at [4.2]. “The Committee is aware of the fact that there are other activities which are not banned but which might possibly be banned on the basis of grounds similar to those which justify the ban on dwarf tossing. However, the Committee is of the opinion that, given that the ban on dwarf tossing is based on objective and reasonable criteria and the author has not established that this measure was discriminatory in purpose, the mere fact that there may be other activities liable to be banned is not in itself sufficient to confer a discriminatory character on the ban on dwarf tossing. For these reasons, the Committee considers that, in ordering the above-mentioned ban, the State party has not, in the present case, violated the rights of the author as contained in article 26 of the Covenant”: Wackenheim v. France, HRC Comm. No. 854/1999, UN Doc. CCPR/C/67/D/854/1999, decided July 15, 2002, at [7.5]. The law in question presumes that foreigners who have served in the armed forces of another country pose a threat to Estonian national security. In this case, “the Tallinn Administrative Court . . . found that the author had not been refused citizenship because he had actually acted against the Estonian state and its security in view of his personal circumstances. Rather, for the reasons cited, the author was in a position where he could act against Estonian national security . . . It observed that there was no need to make out a case of a specific individual threat posed by the author, as he had not been accused of engaging in actual activities against the Estonian state and its security”: Borzov v. Estonia,

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certain politically unpopular persons from a prisoner release program for which they were objectively qualified;491 and where the government argued that there was no administrative error demonstrated by refusal to apply domestic anti-racism laws in a case despite strong evidence of anti-Roma judicial sentiment.492 In a particularly clear example of the Committee’s abdication of its role seriously to examine the merits of a state’s assertion of the reasonableness of differentiation, a twenty-year residence requirement for purposes of voting on self-determination for New Caledonia was upheld as non-discriminatory: [T]he Committee considers that, in the present case, the cut-off points set for the . . . referendums from 2014 onwards are not excessive inasmuch as they are in keeping with the nature and purpose of these ballots, namely a self-determination process involving the participation of persons able to

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HRC Comm. No. 1136/2002, UN Doc. CCPR/C/81/D/1136/2002, decided Aug. 25, 2004, at [2.5]. The Committee nonetheless determined that “the State party concluded that a grant of citizenship to the author would raise national security issues generally on account of the duration and level of the author’s military training, his rank and background in the armed forces of the then USSR . . . [T]he author did enjoy a right to have the denial of his citizenship application reviewed by the courts of the State party. Noting, furthermore, that the role of the State party’s courts in reviewing administrative decisions, including those decided with reference to national security, appears to entail genuine substantive review, the Committee concludes that the author has not made out his case that the decision taken by the State party with respect to the author was not based on reasonable and objective grounds”: ibid. at [7.4]. Much the same reasoning was adopted in the subsequent cases of Tsarjov v. Estonia, HRC Comm. No. 1223/2003, UN Doc. CCPR/ C/91/D/1223/2003, decided Oct. 26, 2007, at [3.3]; and Sipin v. Estonia, HRC Comm. No. 1423/2005, UN Doc. CCPR/C/93/D/1423/2005, decided July 9, 2008, at [7.3]. As Joseph observes, “the HRC’s reasoning here was arguably inconsistent. On the one hand, it found that the distinction in the law was reasonable and objective . . . [but] [i]t would not go further and examine the reasonableness of the application of the law to [the applicants]”: S. Joseph, “Analysis of Tsarjov v. Estonia,” Oxford Public International Law, July 4, 2008. Despite evidence that the Irish government refused to permit certain members of the Provisional Irish Republican Army to benefit from an early prisoner release scheme, the Committee opined that it was “not in a position to substitute the State party’s assessment of facts with its own views, particularly with respect to a decision that was made nearly ten years ago, in a political context, and leading up to a peace agreement”: O’Neill v. Ireland, HRC Comm. No. 1314/2004, UN Doc. CCPR/C/87/D/1314/2004, decided July 24, 2006, at [8.4]. As noted by dissenting member Mr. Hippólito Solari-Yrigoyen, “the Committee gives undue weight to the State party’s claim that it based its decision . . . on the exceptional impact and repercussions of the offence [of which they were convicted] on public opinion.” Maria et al. v. Greece, HRC Comm. No. 1570/2007, UN Doc. CCPR/C/95/1570/2007, decided Mar. 19, 2009, at [2.4], [7.2]. In a stinging dissent, member Mr. Abdelfattah Amor wrote, “Was it advocacy of racial hatred or just words? Was there the intention to offend, and who must prove this? These are questions that should have been discussed, analysed and assessed on the merits. To say, subsequently, that the facts have been insufficiently established for the purposes of inadmissibility is indefensible both legally and factually” (emphasis in original).

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prove sufficiently strong ties to the territory whose future is being decided. This being the case, these cut-off points do not appear to be disproportionate with respect to a decolonization process involving the participation of residents who, over and above their ethnic origin or political affiliation, have helped, and continue to help, build New Caledonia through their sufficiently strong ties to the territory.493

The Committee did not even examine the question whether “sufficiently strong ties” might be demonstrated by a period of residence significantly less than twenty years, much less the allegation that the goal of the requirement was to disfranchise an ethnic minority of the population.494 In all of these cases, reliance on a “reasonableness” test rather than on serious analysis of the real needs and interests of the persons involved served simply to legitimate state discretion.495 Even where the Committee does not simply defer to state assertions of reasonableness, the Committee seems reluctant to delve into the facts of particular cases in order to ensure that the differential treatment is actually proportionate to the social good thereby being advanced.496 For example, the 493

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Gillot v. France, HRC Comm. No. 932/2000, UN Doc. CCPR/C/75/D/932/2000, decided July 15, 2002, at [14.7]. “The authors also consider the period of residence determining the right to vote in referendums from 2014 onwards, namely 20 years, to be excessive. They again assert that the French authorities are seeking to establish an electorate of Kanaks and Caldoches for whom, moreover, the right to vote is maintained even in the event of lengthy absences from New Caledonia”: Gillot v. France, ibid. at [3.10]. The Swedish school benefits cases might, however, have been legitimately rejected on the basis that they do not involve differentiation on the grounds of actual or imputed group identity. They may, in other words, be examples of arbitrariness in rights allocation, rather than discrimination as such. But the Committee has more recently seen fit to find discrimination even where the differentiation arguably bore no relationship to any of the prohibited grounds for discrimination: Haraldsson and Sveinsson v. Iceland, HRC Comm. No. 1306/2004, UN Doc. CCPR/C/91/D/1306/ 2004, decided Oct. 24, 2007, at [10.4]. Several members of the Committee dissented from this unfortunate opinion. For example, to determine whether a law that infringes a protected right may nonetheless be adjudged a “reasonable limitation” for Canadian constitutional law purposes, the Supreme Court of Canada has determined that the government’s objective must be pressing and substantial, and that there is proportionality between means and end. To determine the latter question of proportionality, consideration should be given to whether the limitation on the right is carefully designed to achieve its objective; whether it constrains the right to the minimum extent truly necessary; and whether the benefit of the limitation outweighs the harm occasioned by infringement of the right: R v. Oakes, [1986] 1 SCR 103 (Can. SC, Feb. 28, 1986). The importance of a law’s objective cannot compensate for its patent over-breadth. As such, the Supreme Court of Canada has struck down legislation advancing critical objectives when the means adopted are not proportional to the objective, e.g. involving the protection of children from sexual offenders (R v. Heywood, [1994] 3 SCR 761 (Can. SC, Nov. 10, 1994)), the protection of female children from the harm caused to them by premature intercourse (R v. Hess, [1990] 2 SCR 906

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case of Debreczeny v. Netherlands497 involved a police officer who was excluded from membership on a municipal council by reason of a law deeming membership of the council to be incompatible with the subordinated position of a police officer to local authorities. While the Committee logically noted the “objective and reasonable” goal of avoiding conflicts of interest, it failed to explain why the complete exclusion of the police officer from holding local political office was a proportionate means to achieve that goal.498 Similarly, while some form of restitution was clearly called for in the case of Uruguayan civil servants dismissed by the former military government for their political affiliations, the Human Rights Committee in Stalla Costa v. Uruguay499 did not even consider whether the particular affirmative action program adopted – which effectively blocked access to civil service recruitment for a whole generation of younger Uruguayans – was unduly intrusive on the rights of the non-beneficiary class. Instead, the Committee was content to find the program to be “reasonable and objective,” observing simply that “[t]aking into account the social and political situation in Uruguay during the years of military rule, in particular the dismissal of many public servants . . . the Committee understands the enactment . . . by the new democratic Government of Uruguay as a measure of redress [emphasis added].”500 Indeed, it is “understandable” that the new government would wish to afford redress to the improperly fired civil servants. This general legitimation is precisely the result compelled by scrutiny of a differential rights allocation in relation to no more than a “reasonableness” test. That the program is “understandable” does not, however, make it non-discriminatory. A decision on this latter issue should have led the Committee to consider, for example, whether there were other means of redress open to the Uruguayan government that would not have had such a devastating impact on persons not previously employed by the state.

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(Can. SC, Oct. 4, 1990)) and the protection of persons from the health risks of tobacco use (RJR-Macdonald Inc. v. Canada, [1995] 3 SCR 199 (Can. SC, Sept. 25, 1995)). HRC Comm. No. 500/1992, UN Doc. CCPR/C/53/D/500/1992, decided Apr. 3, 1995. Similarly, the Committee upheld the reasonableness of the retroactive reclassification of a member of the Polish civic militia as a member of the prior regime’s security forces, thereby making him ineligible for reappointment in the post-Communist government: Kall v. Poland, HRC Comm. No. 552/1993, UN Doc. CCPR/C/60/D/552/1993, decided July 14, 1997. In a dissenting opinion, Members Evatt and Medina Quiroga wrote that “it has to be examined whether the classification of the author’s position as part of the Security Police was both a necessary and proportionate means for securing a legitimate objective, namely the re-establishment of internal law enforcement services free of the influence of the former regime, as the State party claims, or whether it was unlawful or arbitrary and or discriminatory, as the author claims”: ibid. HRC Comm. No. 198/1985, decided July 9, 1987. Stalla Costa v. Uruguay, ibid. at [10].

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The critical difference that careful proportionality analysis can make is evident from examination of a pair of cases which alleged that the automatic prolongation of alternative military service was discriminatory in relation to genuine conscientious objectors. In Järvinen v. Finland,501 the Human Rights Committee considered Finland’s rule requiring conscientious objectors to military service to undertake alternative service for double the period of military service. The doubling of service time for conscientious objectors was said by the state to be justified on the grounds that it was necessary in order to discourage abuse of the non-combatant option. The Committee agreed, finding that the scheme was “reasonable” based on the importance of administrative workability, and because there was no intention to discriminate. No effort was made to assess whether the risk of abuse under the new system truly required such a significant disparity between the duration of military and alternative service, much less whether it was necessary to impose the prolonged service on persons willing to submit to careful scrutiny of their reasons for refusal to engage in military service. Yet the Human Rights Committee subsequently arrived at the opposite conclusion in a series of decisions rendered against France on facts essentially indistinguishable from those considered in Järvinen. In these cases, the Committee rejected the reasonableness of a double-time civilian service alternative imposed in the interests of ensuring that only true conscientious objectors would avoid military service: Any differentiation, as the Committee has had the opportunity to state repeatedly, must . . . be based on reasonable and objective criteria. In this context, the Committee recognizes that the law and practice may establish differences between military and national alternative service and that such differences may, in a particular case, justify a longer period of service, provided that the differentiation is based on reasonable and objective criteria, such as the nature of the specific service concerned or the need for a special training in order to accomplish that service. In the present case, however, the reasons forwarded by the State party do not refer to such criteria or refer to criteria in general terms without specific reference to the author’s case, and are rather based on the argument that doubling the length of service was the only way to test the sincerity of an individual’s convictions. In the Committee’s view, such argument does not satisfy the requirement that the difference in treatment involved in the present case was based on reasonable and objective criteria. In the circumstances, the Committee finds that a violation of article 26 occurred, since the author was discriminated against on the basis of his conviction of conscience [emphasis added].502 501 502

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Regrettably, only a minority of the jurisprudence under Art. 26 follows this approach of carefully scrutinizing the reasons advanced by states for practices that raise prima facie claims of discrimination.503 And not even these more progressive decisions squarely engage the issue of proportionality, a question that is generally understood to be at the heart of whether a given constraint is objective and reasonable, and thus non-discriminatory.504

1.5.5.3 Failure to Ensure Substantive Equality A third concern is that the Human Rights Committee has traditionally shown only modest willingness to act on the principle that a rule that applies to everyone can nonetheless be discriminatory where the rule’s application impacts differently on different groups of people. In PPC v. Netherlands,505 for example, the issue was whether an income support law that determined

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Comm. Nos. 690/1996 and 691/1996, UN Docs. CCPR/C/69/D/690/1996 and CCPR/C/ 69/D/691/1996, decided July 10, 2000. But in Young v. Australia, HRC Comm. No. 941/ 2000, UN Doc. CCPR/C/78/D/941/2000, decided Aug. 6, 2003, the Committee’s refusal to defer to the government’s assertion that it was “reasonable” to distinguish between samesex and opposite-sex couples for purposes of entitlement to veterans’ benefits led to a finding of discrimination contrary to Art. 26. In contrast to the usual pattern of deference, the Committee here noted that “[t]he State party provides no arguments on how this distinction between same-sex partners, who are excluded from pension benefits under law, and unmarried heterosexual partners, who are granted such benefits, is reasonable and objective, and no evidence which would point to the existence of factors justifying such a distinction has been advanced”: ibid. at [10.4]; affirmed in X v. Colombia, HRC Comm. No. 1361/2005, UN Doc. CCPR/C/89/D/1361/2005, decided Mar. 30, 2007, at [7.2]. Sadly, “the Committee generally offers sparse reasoning in its Views as to whether or not different treatment is reasonable and objective”: Pobjoy, “Treating Like Alike,” at 225. A rather unstructured analysis underpins many of the Committee’s decisions. For example, in one case the Committee explicitly articulated the view that the disfranchisement of past property owners in favor of current tenants was rendered reasonable by virtue of the existence of a system to compensate the former owners. “The State party has justified the (exclusionary) requirement that current tenants of former State-owned residential property have a ‘buy first option’ even vis-à-vis the former owner of the property with the argument that tenants contribute to the maintenance of the property through improvements of their own. The Committee does not consider that the fact of giving the current tenants of former State-owned property priority in the privatization sale of such property is in itself unreasonable; the interests of the ‘current tenants’, who may have been occupying the property for years, are deserving of protection. If the former owners are, moreover, compensated on equal and non-discriminatory terms . . . the interplay between Act XXV of 1991 and . . . Act LXVIII of 1993 can be deemed compatible with article 26 of the Covenant”: Somers v. Hungary, HRC Comm. No. 566/1993, UN Doc. CCPR/C/53/D/566/1993, decided July 23, 1996, at [9.8]. See e.g. Fredman, Discrimination, at 190–202. Indeed, the failure of the Human Rights Committee to adopt a structured framework for discrimination analysis has been said to lead to unwarranted subjectivity: S. Joseph and M. Castan, The International Covenant on Civil and Political Rights: Cases, Materials, and Commentary (2013), at [23.49]. HRC Comm. No. 212/1986, UN Doc. CCPR/C/OP/2, decided Mar. 24, 1988.

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eligibility for assistance on the basis of revenue during the month of September alone was discriminatory. The applicant had received an income in excess of the minimum wage during only two months of the year, of which September was one. On the basis of consideration of nothing other than his September income, PPC was denied access to the income support program. In examining his complaint, the Human Rights Committee, however, did not even consider the fact that the applicant was clearly in no different need than a person who had received identical income during a month other than September, and who would consequently have been granted benefits under the law: [T]he scope of article 26 does not extend to differences of results in the application of common rules in the allocation of benefits . . . Such determination is . . . uniform for all persons with a minimum income in the Netherlands. Thus, the Committee finds that the law in question is not prima facie discriminatory.506

The Committee’s highly formalistic understanding of equality is also clear in its response to a challenge to the legality of a Quebec language law that denied merchants the right to advertise in other than the French language. The Committee found no evidence of discrimination against the English-speaking minority in that province on the grounds that the legislation contained only “general measures applicable to all those engaged in trade, regardless of their language.”507 The views of the Committee take no account of the fact that the impact of the language law on French and English speakers was in fact quite different. Whereas most French language merchants could continue to communicate with their majority clientele in their preferred language (French), the law prohibited most English language merchants from advertising to their principal customer base in its preferred language (English). The Human Rights Committee did not even inquire whether there was in fact a difference in the impact of the law on English and French language merchants, noting simply that “[t]his prohibition applies to French speakers as well as to English speakers, so that a French speaking person wishing to advertise in English, in order to reach those of his or her clientele who are English speaking, may not do so. Accordingly the Committee finds that the [English-speaking merchant] authors have not been discriminated against on the ground of their language.”508 506

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PPC v. Netherlands, ibid. at [6.2]. Like the Swedish school benefits cases, discussed at note 484, the facts in this case may not amount to discrimination, since the differential rights allocation was not the result of stigmatization on the grounds of actual or imputed group identity. This does not, however, make the differentiation “reasonable.” Ballantyne and Davidson v. Canada and McIntyre v. Canada, HRC Comm. Nos. 359/1989 and 385/1989 (joined on Oct. 18, 1990), UN Docs. CCPR/C/40/D/359/1989 and CCPR/C/ 40/D/385/1989, decided Mar. 31, 1993, at [11.5]. See also Singer v. Canada, HRC Comm. No. 455/1991, UN Doc. CCPR/C/51/D/455/1991, decided July 26, 1994. Ballantyne and Davidson v. Canada and McIntyre v. Canada, HRC Comm. Nos. 359/1989 and 385/1989 (joined on Oct. 18, 1990), UN Docs. CCPR/C/40/D/359/1989 and CCPR/C/

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Much the same superficial analysis is evident in two more recent decisions involving allegations of indirect discrimination based on religion. In rejecting the argument that a general law against possession of cannabis resulted in discrimination against Rastafarians for whom its use is a religious requirement, the Human Rights Committee failed even to engage the religious significance issue, noting simply that “the prohibition of the possession and use of cannabis affects all individuals equally, including members of other religious movements who may also believe in the beneficial nature of drugs.”509 And faced with the argument that the applicant’s inability to secure a state pension followed from her strongly held religious objections to the structure of the application process,510 the Committee chose simply to avoid addressing the merits of the claim by suggesting that there might be other ways for the applicant to confirm her identity to authorities.511 This approach was rightly criticized by the dissenting members of the Committee who insisted that “[t]he refusal to pay the [applicant] the pension that she had earned . . . appears to be a disproportionate interference with her freedom to manifest her religion in practice.”512 The Human Rights Committee’s reluctance to engage with the discriminatory ramifications of facially neutral laws has unfortunately informed the Committee’s consideration of cases involving allegations of discrimination against non-citizens. For example, restrictions on the right to family unity imposed by immigration controls have received short shrift. In AS v. Canada, the Committee ruled that the refusal to allow the applicant’s daughter and grandson to join her in Canada because of their economic and professional status did not even raise an issue potentially cognizable as

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40/D/385/1989, decided Mar. 31, 1993, at [11.5]. This is a case that cried out for nuanced analysis under the affirmative action rubric. There are some important social reasons that suggest the need to reinforce the place of the French language in Quebec society, but the Committee ought logically to have given careful consideration to whether the particular approach adopted was reasonable in the sense of adequately taking account of the individuated capabilities and potentialities of persons outside the beneficiary group. Relevant issues would include whether the legislation impairs the rights of members of the non-beneficiary class more than is necessary to accomplish its objectives, and whether the negative impact of the affirmative action program on members of the non-beneficiary group is disproportionate to the good thereby sought to be achieved for those within the target group. Prince v. South Africa, HRC Comm. No. 1474/2006, UN Doc. CCPR/C/91/D/1474/2006, decided Oct. 31, 2007, at [7.5]. A pension in Belarus would only be granted if the applicant secured a personal identity number (rather than applying by name). The applicant, a devout Orthodox Christian, argued that “replacing her name with a number for the purposes of interaction with the State authorities and society is demeaning, equating an individual, created in the image of God, with a soulless object”: Yachnik v. Belarus, HRC Comm. No. 1990/2010, UN Doc. CCPR/C/111/D/1990/2010, decided July 21, 2014, at [2.1]. Ibid. at [8.4], [2.4]. Ibid. at Dissenting Opinion, at [5]. The dissenters would have taken the view that the requirement to secure an identity number was a reasonable limitation mandated by public safety and order, consistent with Covenant Art. 18(3): ibid. at [4].

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discrimination.513 Yet family reunification rules impact disproportionately on recent immigrants and other non-citizens, and can – if not objective and reasonable – discriminate against them in relation to their human right to live with their families. Similarly, in Oulajin and Kaiss v. Netherlands,514 the Human Rights Committee upheld a Dutch law that paid child support in respect of the natural children of Dutch residents wherever the children might live, but which denied support for foster children who were not resident in the Netherlands. Dutch authorities argued that this distinction was reasonable because whereas a “close, exclusive relationship . . . is presumed to exist in respect of one’s own children . . . it must be made plausible in respect of foster children.”515 In fact, however, the bar on payment to foster children resident abroad was absolute, and could not be dislodged by evidence of a de facto close and exclusive relationship. The migrant workers who appealed to the Committee pointed out that both their natural and foster children were being raised under precisely the same conditions in Morocco, and that the presumption of a weaker bond between parents and foster children that gave rise to the statutory prohibition of payments to non-resident foster children was rooted in a stereotypical Western understanding of family obligations. The separation of the migrant workers from their children, both natural and foster, was moreover a function of their limited rights as non-citizens. They had not wished to leave their children in Morocco, but were required to do so under the terms of their immigration authorizations. Taking absolutely no account of the fundamentally different circumstances of migrant workers and Dutch citizens, the Committee found the support scheme to be non-discriminatory, as “applicants of Dutch nationality, residing in the Netherlands, are also deemed ineligible for child benefits for their foster children who are resident abroad.”516 More generally, four members appended an individual opinion in which they suggested that states should be free in all but the most egregious cases to allocate social benefits as they see fit, without fear of running afoul of Art. 26: With regard to the application of article 26 of the Covenant in the field of economic and social rights, it is evident that social security legislation, which is intended to achieve aims of social justice, necessarily must make distinctions. It is for the legislature of each country, which best knows the socio-economic needs of the society concerned, to try to achieve social justice in the concrete context. Unless the distinctions made are manifestly 513

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HRC Comm. No. 68/1980, decided Mar. 31, 1981. It was held that the negative resettlement assessment was “in conformity with the provisions of existing Canadian law, the application of which did not in the circumstances of the present case give rise to any question of discrimination”: ibid. at [8.2(c)]. Oulajin and Kaiss v. Netherlands, HRC Comm. Nos. 406/1990 and 426/1990, UN Docs. CCPR/C/46/D/406/1990 and CCPR/C/46/D/426/1990, decided Oct. 23, 1992. Ibid. at [2.5]. 516 Ibid. at [5.4].

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discriminatory or arbitrary, it is not for the Committee to reevaluate the complex socio-economic data and substitute its judgment for that of the legislatures of States parties [emphasis added].517

This unwillingness to consider the ways in which foreign citizenship or residence abroad may give rise to the need for special accommodation in order to achieve substantive equality is also apparent from the decision in SB v. New Zealand.518 Entitlement to a New Zealand government pension was reduced by the amount of any other government pension, but not by any sums payable under a private pension. The complainant, an immigrant to New Zealand, argued that he stood at a disadvantage relative to native New Zealanders since all pensions in his country of origin were accumulated in a state-administered fund. Because all of his pension benefits therefore derived from a government-administered plan, they were counted against his entitlement to a New Zealand pension. A New Zealand national, on the other hand, who was allowed to contribute the same monies to a private pension scheme, would see no reduction in his entitlement to a New Zealand government pension. The Human Rights Committee saw no arguable claim of discrimination, invoking its standard reasoning that the law was not explicitly discriminatory in relation to non-citizens.519 As in the case of the migrant workers’ application for benefits in respect of their foster children, the Committee showed no sensitivity to the different way in which a facially neutral law can impact on persons who are not, or who have not always been, citizens of the country in question. There was a glimmer of hope, however, in a series of cases contesting the validity of Czech laws designed to effect restitution to persons deprived of property by Communist regimes.520 These cases did not actually involve an allegation of discriminatory impact in the application of facially neutral laws: to the contrary, the laws being contested explicitly denied compensation to 517

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Ibid. at [3] of the Individual Opinion of Messrs. Kurt Herndl, Rein Müllerson, Birame N’Diaye, and Waleed Sadi. HRC Comm. No. 475/1991, UN Doc. CCPR/C/50/D/475/1991, decided Mar. 31, 1994. “[T]he Act does not distinguish between New Zealand citizens and foreigners . . . [A] deduction takes place in all cases where a beneficiary also receives a similar [governmentadministered] benefit . . . from abroad”: SB v. New Zealand, HRC Comm. No. 475/1991, UN Doc. CCPR/C/50/D/475/1991, decided Mar. 31, 1994, at [6.2]. The seminal case was Simunek et al. v. Czech Republic, HRC Comm. No. 516/1992, UN Doc. CCPR/C/54/D/516/1992, decided July 19, 1995. Much the same approach has been adopted in Zavrel v. Czech Republic, HRC Comm. No. 1615/2007, UN Doc. CCPR/C/99/ D/1615/2007, decided July 27, 2010; Drda v. Czech Republic, HRC Comm. No. 1581/2007, UN Doc. CCPR/C/100/D/1581/2007, decided Oct. 27, 2010; and Klain and Klain v. Czech Republic, HRC Comm. No. 1847/2008, UN Doc. CCPR/C/103/D/1847/2008, decided Nov. 1, 2011. In some instances, however, the Committee has dismissed comparable claims, citing inadmissibility concerns due to delay in submitting the communication or taking account of temporal limits in the legislation deemed to be generally applicable.

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persons unable to meet citizenship and other criteria.521 Yet because the government argued that despite the language of the relevant laws there had been no intention to discriminate against non-citizens, the Committee felt compelled to take up the question of discriminatory effects. It did so most clearly in its decision of Adam v. Czech Republic, where it specifically determined that there is no need to find an intention to discriminate in order to establish a breach of Art. 26: The State party contends that there is no violation of the Covenant because the Czech and Slovak legislators had no discriminatory intent at the time of the adoption of Act 87/1991. The Committee is of the view, however, that the intent of the legislature is not dispositive in determining a breach of article 26 of the Covenant, but rather the consequences of the enacted legislation. Whatever the motivation or intent of the legislature, a law may still contravene article 26 of the Covenant if its effects are discriminatory.522

Distressingly, though, the same Czech legislation has survived scrutiny when challenged as true indirect discrimination. While the early cases focused on the fact that non-citizens whose property had been expropriated were unable to enjoy the same compensation as citizens, more recent challenges have posited that the temporal bar on compensation for property confiscated before February 25, 1948 was indirectly discriminatory on grounds of nationality. Because expropriations in 1945 affected German and Hungarian nationals, it was argued that the legislative differentiation gave rise to effects-based discrimination. While the majority of the Committee dismissed the complaint on the simplistic basis that “the property lies outside the scope of the challenged 1991 law owing to temporary restrictions that were applicable to all equally,”523 three members of the Committee dissented: [T]he Committee is adopting an unusually narrow interpretation of article 26 by considering that the effects of a law are perceived only by those who fall within its scope . . . [But] a law whose scope was limited ratione 521

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The issue in Simunek et al. v. Czech Republic, HRC Comm. No. 516/1992, UN Doc. CCPR/ C/54/D/516/1992, decided July 19, 1995, was whether the Czech government had discriminated by passing a law which granted restitution for property confiscated during the Communist era, but only to those who were citizens and permanent residents of the Czech Republic on September 30, 1991. Adam v. Czech Republic, HRC Comm. No. 586/1994, UN Doc. CCPR/C/57/D/586/1994, decided July 23, 1996. See also e.g. Blazek v. Czech Republic, HRC Comm. No. 857/1999, UN Doc. CCPR/C/72/D/857/1999, decided July 12, 2001, at [5.8]; and Brok v. Czech Republic, HRC Comm. No. 774/1997, UN Doc. CCPR/C/73/D/774/1997, decided Oct. 31, 2001, at [7.2]. X v. Czech Republic, HRC Comm. No. 1961/2010, UN Doc. CCPR/C/113/D/1961/2010, decided Apr. 2, 2015, at [6.4].

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temporis or ratione personae may have discriminatory effects, whether or not they are intended by the law, against persons who do not fall within the scope of the [law] . . . [T]he [1945 expropriation] Decree was . . . aimed at confiscating the property of persons belonging to a national or ethnic group . . . In setting a time limit – in an apparently neutral way – on any confiscations that occurred before 1948, has the law not brought about detrimental effects which “exclusively or disproportionately affect persons having a particular race, colour, language, religion, political or other opinion, national or social origin, property, birth or other status”?524

Given this reluctance genuinely to interrogate the discriminatory effects on non-citizens of superficially neutral legislation, how will the Committee respond when called upon to assess the reasonableness of rules that discriminate in fact against non-citizens despite their complete facial neutrality – including, for example, rules on immigration, child support, and pension entitlement adjudicated in earlier cases without the benefit of an effects-based analysis?525 524

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Ibid. at Individual opinion of members Olivier de Frouville, Mauro Politi, and Victor Manuel Rodríguez-Rescia, at [5], [7]. Similar concerns were earlier raised by the same Committee members, also dissenting in B and C v. Czech Republic, HRC Comm. No. 1967/ 2010, UN Doc. CCPR/C/113/D/1967/2010, decided Apr. 2, 2010. Indeed, the Committee had earlier agreed in principle that “an indirect discrimination may result from a failure to treat different situations differently, if the negative results of such failure exclusively or [disproportionately] affect persons of a particular race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”: Godfried and Pohl v. Austria, HRC Comm. No. 1160/2003, UN Doc. CCPR/C/81/D/ 1160/2003, decided July 9, 2004. It is important to note that in both the progressive strand of property restitution cases and even in the decision of Derksen v. Netherlands, HRC Comm. No. 976/2001, UN Doc. CCPR/C/80/D/1976/2001, decided Apr. 1, 2004, the impugned legislation was, in fact, explicit about the category of persons to whom benefits would be denied (non-citizens in the former cases, children born before a particular date in the latter decision). The Committee has yet to apply the indirect discrimination doctrine to a situation in which there is no such explicit limitation in the law or practice being scrutinized. Moreover, the Committee in Derksen, ibid., seemed at pains to make clear that the government’s decision to extend survivorship benefits to the children of unmarried parents was critical to the finding of discrimination. “In the circumstances of the present case, the Committee observes that under the earlier [law] the children’s benefits depended on the status of the parents, so that if the parents were unmarried, the children were not eligible for the benefits. However, under the new [law], benefits are being denied to children born to unmarried parents before 1 July 1996 while granted in respect of similarly situated children born after that date”: ibid. at [9.3]. Yet if the Committee is truly committed to an effects-based approach to the identification of indirect discrimination, it is unclear why a law designed along the lines of the former law – which provided benefits for the children of married parents, but not for the children of unmarried parents – would not amount to discrimination in fact against the children of unmarried parents. Indeed, the rejection in this same case of a claim by the child’s mother for benefits on the grounds that she and her (now deceased) partner failed to be married and hence to establish entitlement under the

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All in all, it is thus unclear whether the Human Rights Covenants’ guarantees of non-discrimination – in particular, Art. 26 of the Civil and Political Covenant – will be of real value to refugees and other non-citizens. If nondiscrimination law is to become an important force for refugee rights there must be a clear rejection of the view that categorical distinctions based on citizenship may be assumed to be reasonable; the nascent preparedness to begin real interrogation of state assertions of reasonableness must be developed, and a serious commitment to analysis of proportionality embraced;526 and there must be a genuine preparedness to take account of the discriminatory effects of superficially neutral laws and practices. The Human Rights Committee has shown an awareness that refugee rights should follow from their unique predicament as involuntary expatriates,527 and has indicated a particular disinclination to find restrictions to be reasonable insofar as individuals are unable to comply by virtue of having been forced to seek refugee status abroad.528 But these commitments must be seen for what they are: modest and recent shifts away from what has traditionally been a rather superficial and deferential jurisprudence on the meaning of nondiscrimination.

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survivorship regime applicable to spouses suggests the extraordinarily fragile nature of the Committee’s new-found commitment to the eradication of indirect discrimination. As the International Court of Justice has observed, the Human Rights Committee has appropriately insisted in other contexts of consideration on the proportionality of restrictions of rights before finding them to be lawful. “The Court would observe that the restrictions provided for under Article 12, paragraph 3, of the International Covenant on Civil and Political Rights [dealing with freedom of movement] are, by the very terms of that provision, exceptions to the right of freedom of movement contained in paragraph 1. In addition, it is not sufficient that such restrictions be directed to the ends authorized; they must also be necessary for the attainment of those ends. As the Human Rights Committee put it, they ‘must conform to the principle of proportionality’ and ‘must be the least intrusive instrument amongst those which might achieve the desired result’ (CCPR/C/21/Rev.1/Add.9, General Comment No. 27, [14])”: Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, [2004)] ICJ Rep 136, decided July 9, 2004, at [136]. “These victims of political persecution sought residence and citizenship in other countries. Taking into account that the State party itself is responsible for the departure of the authors, it would be incompatible with the Covenant to require them permanently to return to the country as a prerequisite for the restitution of their property or for the payment of appropriate compensation”: Simunek et al. v. Czech Republic, HRC Comm. No. 516/1992, UN Doc. CCPR/C/54/D/516/1992, decided July 19, 1995, at [11.6]. In Blazek v. Czech Republic, HRC Comm. No. 857/1999, UN Doc. CCPR/C/72/D/857/ 1999, decided July 12, 2001, the Committee observed “that it cannot conceive that the distinction on grounds of citizenship can be considered reasonable in the light of the fact that the loss of Czech citizenship was a function of their presence in a State in which they were able to obtain refuge”: ibid. at [5.8]. This is consistent with Art. 6 of the Refugee Convention, which requires that refugees be exempted from requirements “which by their nature a refugee is incapable of fulfilling”: Refugee Convention, at Art. 6. See generally Chapter 3.2.3.

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In sum, the 1951 Refugee Convention remains at the heart of the endeavor to advance refugee rights, its age notwithstanding. The 1967 Refugee Protocol expanded the beneficiary class of refugees, but incorporated the Convention’s rights regime by reference. The many conclusions and guidelines on international protection issued by the UNHCR elaborate the content of Convention rights, rather than seeking to formulate new standards. The regional refugee rights regimes established by the African Union, European Union, and Organization of American States (as well as those proposed by the Arab League and in Southeast Asia) supplement rather than supplant the Convention. In some important contexts these regional refugee arrangements do add to the corpus of refugee rights, while in other senses they seem to detract from it (though as a matter of international law they cannot, of course, supersede the UN Refugee Convention). General norms of international human rights law are now generally agreed to apply to non-citizens, including refugees. While in many respects serving as critical gap-fillers for concerns not addressed by the Refugee Convention, in other respects general human rights norms fall short of the refugee-specific protections – in particular because rights are only guaranteed to non-citizens “without discrimination,” and the non-discrimination case law to-date is unclear about the legitimacy of categorical differentiation between citizens and non-citizens, defers too readily to state assertions of reasonableness, and has yet to embrace a firm and clear approach to ensuring substantive equality.

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2 An Interactive Approach to Interpreting Refugee Rights

Refugee rights at international law are nearly always codified in treaties.1 The core of the refugee rights regime is the 1951 Refugee Convention2 and its 1967 Protocol,3 still the only source of globally applicable refugee rights. But as the analysis in Chapter 1 has shown, this core is today supplemented by both regional refugee rights standards4 and a more general international system of international human rights law.5 Reading these standards together – as the analysis in Chapters 4–7 does – the treaty-based system for the advancement of refugee rights is remarkably comprehensive. Three challenges must, however, be acknowledged. First and most fundamentally, nearly one-third of the world’s refugees live in states that are not bound to grant them rights under the Refugee Convention or Protocol.6 These persons are refugees at international law, but have no means by which to claim refugee rights.7 This dilemma seems unlikely to be resolved any time soon, since new accessions to the Refugee Convention and 1

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But see M.-T. Gil Bazo, “Asylum as a General Principle of International Law,” (2015) 27(1) International Journal of Refugee Law 3, making a neo-natural law argument that there is a more foundational right to asylum grounded in “the pre-existence of a fundamental social value”: ibid. at 15. Convention relating to the Status of Refugees, 189 UNTS 2545 (UNTS 2545), done July 28, 1951, entered into force Apr. 22, 1954 (Refugee Convention). The origins of the Refugee Convention are discussed at Chapter 1.4. Protocol relating to the Status of Refugees, 606 UNTS 8791 (UNTS 8791), done Jan. 31, 1967, entered into force Oct. 4, 1967 (Refugee Protocol). The advent of the Refugee Protocol is discussed at Chapter 1.5.1. See Chapter 1.5.3. 5 See Chapters 1.5.4–1.5.5. Countries hosting at least 5,000 refugees but that have not signed or ratified the Refugee Convention or Protocol include Bangladesh, India, Indonesia, Iraq, Jordan, Lebanon, Libya, Malaysia, Nepal, Pakistan, Syria, and Thailand: UNHCR, “Global Trends: Forced Displacement in 2018,” at Annex, Table 1; and www.unhcr.org/protect/PROTECTION/ 3b73b0d63.pdf, accessed Feb. 1, 2020. In addition, the country hosting the world’s largest refugee population – Turkey (3.7 million refugees: ibid.) – has no legal duty to protect nonEuropean refugees by virtue of its geographical reservation to the Convention: see Chapter 1.4.3 at note 91. Under the Convention, rights are not enforceable at large but require that a refugee at least come under the jurisdiction of a state party. See Chapter 3.1; and generally J. Hathaway and M. Foster, The Law of Refugee Status (2014), at 17 ff.

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Protocol have stagnated,8 even in states that in fact host significant numbers of refugees.9 While accepting the reality that the reception of refugees is an ethical (or at least practical) imperative, many refugee-hosting countries have yet to be convinced that it is in their interest to be bound to treaties that regulate how they treat the refugees they receive.10 Until quite recently, the challenge of non-accession to the refugee treaties was compounded by the failure of many refugee-hosting states to bind themselves to the two core general human rights treaties: the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights.11 Because many refugees unable to claim Refugee Convention rights were also unable to invoke cognate rights under the generalist Covenants,12 their advocates had little choice but to invoke non-conventional standards to fill the normative void. This was a serious challenge, since despite scholarly efforts to promote robust understandings of human rights as a matter of both custom13 and general principles of law,14 such claims have only rarely been accepted by courts and governments.15 Refugee-specific affirmations have been rarer still.16 The 8 10

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9 See Chapter 1.4.2 at note 83. See note 6. Refugee rights can be indirectly secured in non-party states to some extent by way of cooperation agreements entered into with UNHCR: see generally M. Zieck, UNHCR’s Worldwide Presence in the Field: A Legal Analysis of UNHCR’s Cooperation Agreements (2006). International Covenant on Economic, Social and Cultural Rights, 993 UNTS 3 (UNTS 14531), adopted Dec. 16, 1966 (“Economic and Social Covenant”); International Covenant on Civil and Political Rights, 999 UNTS 1721 (UNTS 14668), adopted Dec. 16, 1966 (“Civil and Political Covenant”). J. Hathaway, The Rights of Refugees under International Law (2005) (the first edition of the current volume), at 9, n. 31. See e.g. O. Schacter, International Law in Theory and Practice (1991); B. Lepard, Customary International Law: A New Theory with Practical Applications (2010); and A. Guzman and J. Hsiang, “Some Ways that Theories on Customary International Law Fail: A Reply to Laszlo Blutman,” (2014) 25(2) European Journal of International Law 553. See e.g. N. Petersen, “Customary Law Without Custom? Rules, Principles, and the Role of State Practice in International Norm Creation,” (2007) 23(2) American University International Law Review 275, at 307–308; and M. Biddulph and D. Newman, “A Contextualized Account of General Principles of International Law,” (2014) 26 Pace International Law Review 286, at 296. As regards custom, “[i]t appears to be still a perfectly tenable view that there is in fact no general international customary law of human rights, all the existing rights and obligations of states in this domain (with some exceptions) being based, mediately or immediately, on treaty commitments, or on general international declarations that have in some manner . . . a similar degree of binding force”: H. Thirlway, “Human Rights in Customary Law: An Attempt to Define Some of the Issues,” (2015) 28(3) Leiden Journal of International Law 495, at 497. An important exception is that there is presently some judicial support for the view that non-refoulement is a norm of customary international law: see Chapter 4.1.6. More generally, the Inter-American Court of Human Rights has opined that “[w]ith the

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usual consequence of the failure of states to sign on to the Refugee Convention and other human rights treaties was thus “refugee warehousing”:17 a loose commitment to sheltering refugees, but without granting them the rights needed to lead dignified lives. The good news is that today nearly all refugees – some 98 percent of the total refugee population – live in states that are bound by both of the UN Covenants on Human Rights.18 While the failure to bring the states hosting close to onethird of the refugee population19 onboard the Refugee Convention remains troubling given the greater specificity and relevance of its rights regime,20 the consequences are thankfully much less dire today than in the past. The ability of refugees nearly always to rely on general international human rights treaties is now a critical, if next-best, plank in the advancement of refugee rights, and is thus developed in detail in this book. A second – if significantly less serious – challenge can arise even when states have agreed to be bound by refugee law and related human rights treaties. Despite the fact that such states are clearly subject to relevant legal obligations, there may still be national or regional legal impediments to the practical invocation of even clearly binding international law. In most of the common law world, for example, judges and other decisionmakers are denied the right to enforce international law unless it is

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protection provided by the 1951 Convention and its 1967 Protocol, the institution of asylum assumed a specific form and mechanism at the global level: that of refugee status”: Pacheco Tineo v. Bolivia, Ser. C No. 272 (IACtHR, Nov. 25, 2013), at [139]. This might be read to argue for a general duty to grant asylum on the terms mandated by the Refugee Convention, though this position is difficult to reconcile to the failure of more than onequarter of the world’s governments to agree to be bound by that treaty. Somewhat greater progress was made by the creative invocation of national law to provide a measure of legal protection to refugees in non-party states. For example, the Supreme Court of India has drawn on the protection of life and liberty in the Indian constitution to guarantee refugees the effective equivalent of protection against refoulement: National Human Rights Commission v. State of Arunachal Pradesh, (1996) 83 AIR 1234 (In. SC, Jan. 9, 1996). The Indian Supreme Court had earlier affirmed that a duty of non-refoulement is inherent in the right to seek asylum set by Art. 14 of the Universal Declaration of Human Rights, though it recognized that this duty is a matter of “moral authority” rather than a strict legal obligation: Khudiram Chakma v. State of Arunachal Pradesh, [1994] AIR 1461 (In. SC, Apr. 27, 1993). Another example is Hong Kong, where the judiciary has sought to fill the normative void in that jurisdiction by recognizing a customary legal duty of nonrefoulement: see Chapter 4.1.6. In general however, applying refugee law’s “territorybased paradigm of state duties to inherently trans-border phenomena such as refugee movements, global in scope and in impact, leaves enormous problems for which no state bears responsibility”: J. Field, “Bridging the Gap between Refugee Rights and Reality: A Proposal for Developing International Duties in the Refugee Context,” (2010) 22(4) International Journal of Refugee Law 512, at 513. M. Smith, “Warehousing Refugees: A Denial of Rights, a Waste of Humanity,” World Refugee Survey 2004, 38. See Chapter 1.5.4 at note 387. 19 See note 6. 20 See Chapters 4–7.

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domesticated.21 Given the frequent disinclination of governments to make internationally agreed refugee rights justiciable under national law, the requirement to transform international law into domestic law before rights are enforceable is in principle a significant hurdle. In practice, however, all leading common law courts take account of international refugee rights, albeit usually indirectly as an interpretive aid in the construction of domestic law.22 As the Supreme Court of Canada recently explained, This [approach] follows from the fact that to interpret a Canadian law in a way that conflicts with Canada’s international obligations risks incursion by the courts in the executive’s conduct of foreign affairs and censure under international law . . . [T]his Court has repeatedly endorsed and applied the interpretive presumption that legislation conforms with the state’s international obligations. This interpretive presumption is not peculiar to Canada. It is a feature of legal interpretation around the world.23

A variant of this second challenge arises in states of the European Union (EU)24 where regional norms not always aligned with international obligations25 are 21

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“In England the conclusion and ratification of treaties are within the prerogative of the Crown, and if a transformation doctrine were not applied, the Crown could legislate for the subject without parliamentary consent, in violation of the basal notion of parliamentary sovereignty . . . Thus, as a strongly dualist system, English law will not ordinarily permit unimplemented treaties to be given legal effect by the courts”: J. Crawford, Brownlie’s Principles of Public International Law (2012), at 63. Similarly, the United States generally considers human rights treaties not to be “self-executing,” meaning that they may be enforced by courts only if and when implementing legislation is enacted: P. Venetis, “Making Human Rights Treaty Law Actionable in the United States: The Case for Universal Implementing Legislation,” (2011) 63(1) Alabama Law Review 97, at 115. “[T]here is a presumption that English law accords with international obligations”: M. Shaw, International Law (2014), at 110. In the United States, domestic laws are not to be construed so as to violate international law “if any other possible construction” exists: The Charming Betsy, (1804) 6 US (2 Cranch) 64, at 118. B010 v. Canada, [2015] SCC 58 (Can. SC, Nov. 27, 2015), at [47]–[48]. The same dilemma might in theory arise in Africa, the only other region that has established a binding regional refugee law regime. In contrast to European Union law, the Convention Governing the Specific Aspects of Refugee Problems in Africa, 1001 UNTS 45 (UNTS 14691), entered into force June 20, 1974 (“AU Refugee Convention,” discussed at Chapter 1.5.3), positively affirms only a limited subset of refugee rights – non-refoulement and “asylum,” non-discrimination, voluntary repatriation, and travel documents – meaning that in all other respects the rights set by the Refugee Convention simply apply without qualification. The potential for conflict is greatest where the AU Refugee Convention appears to set limits on rights in terms different than the Refugee Convention, specifically as regards internal freedom of movement (Art. II(6)) and the prohibition of subversive activities (Art. III), discussed at Chapters 5.2 and 6.5 respectively. See Chapter 1.5.3 at notes 293–318. For example, the EU Reception Directive provides that persons seeking recognition of their refugee status “may move freely within the territory of the host Member State or within an area assigned to them by that Member State [emphasis added],” a limitation that is misaligned with the comparable provision in the Refugee

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both formally binding and subject to regional judicial oversight.26 Given the duty of both national and regional courts to apply these norms, a challenge for the enforcement of the Refugee Convention and other international human rights could, in theory, arise. But because EU legislation requires that regional refugee law be applied in consonance with international refugee law,27 a critical interpretive space exists for the invocation of global norms. The Court of Justice of the European Union, noting that European laws must “be interpreted . . . in a manner consistent with the Geneva Convention,”28 has for example refused to interpret regional law on refugee freedom of movement more narrowly than the UN Refugee Convention requires: Article 26 of the Geneva Convention, under which refugees are guaranteed the right to freedom of movement, expressly provides that that freedom includes not only the right to move freely in the territory of the State that has granted refugee status, but also the right of refugees to choose their place of residence in that territory. There is nothing to suggest that the EU legislature chose to include only the first of those rights in [the regional] Directive . . . but not the second.29

This led the Court to conclude that EU regional law on point “must be interpreted as meaning that it requires the Member States to allow beneficiaries of international protection both to move freely within the territory of the

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Convention which disallows restrictions on freedom of movement unless those restrictions are demonstrably “necessary”: Directive laying down standards for the reception of applicants for international protection (recast), No. 2013/33/EU (June 26, 2013) (“EU Reception Directive”), at Art. 7(1); and Refugee Convention, Art. 31(2). In some other respects, however, the regional standard is more generous than international refugee law requires, e.g. as regards access to employment: compare EU Reception Directive, Art. 15(1) and Refugee Convention, Art. 17(1). See C. Costello, The Human Rights of Migrants and Refugees in European Law (2016), at 24–38. Consolidated Version of the Treaty on the Functioning of the European Union, May 9, 2008, OJ 2008 C115/47, at Art. 78 (requiring the development of “a common policy on asylum” that “must be in accordance with” the Refugee Convention). The European Union’s Charter of Fundamental Rights similarly provides that the right to asylum is to be understood “with due respect for the rules of” the Refugee Convention: Charter of Fundamental Rights of the European Union, Dec. 7, 2000, OJ 2012 C326/02, at Art. 18. Kreis Warendorf v. Ibrahim Alo and Amira Osso v. Region Hannover, Dec. Nos. C/443/14 and C/444/14 (CJEU, Mar. 1, 2016), at [29]. The Court’s jurisprudence is consistent in this respect, stemming back to Abdulla and Others v. Germany, Joined Dec. Nos. C-175/08, C-176/08, C-178/08, and C-179/08, [2010] ECR I-01493 (CJEU, Mar. 2, 2010), at [52]–[53] (in which it observed that the EU Qualification Directive was adopted, inter alia, “to guide the competent authorities of the Member States in the application of” the Refugee Convention). The duty to respect Refugee Convention norms is also clear in the text of relevant EU directives: see Chapter 1.5.3 at note 285. Kreis Warendorf v. Ibrahim Alo and Amira Osso v. Region Hannover, Dec. Nos. C/443/14 and C/444/14 (CJEU, Mar. 1, 2016), at [35].

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Member State that has granted such protection and to choose their place of residence within that territory.”30 In truth, then, the second challenge to the enforcement of refugee rights – constraints arising from national or regional law – is less serious than might be assumed. So long as a state has accepted relevant treaty-based obligations, there is usually some means by which to bring international refugee rights to bear – even where domestication is in principle required, or where regional norms are the presumed immediate point of reference. There still remains a third challenge, the subject of this chapter. Assuming both the existence of relevant international obligations and that international refugee and human rights laws are directly (or at least indirectly) justiciable, how precisely should a court or other decision-maker arrive at a sound understanding of the scope of refugee rights under international law? Specifically, what is the relevant weight of text, context, and object and purpose in the interpretive exercise? How ought a decision-maker to take account of the adoption after 1951 of a massive corpus of international human rights law that frequently overlaps with refugee law standards? Is it legitimate to interpret refugee rights by looking to the drafting history of the Refugee Convention, to the views of the UN High Commissioner for Refugees (UNHCR), or to the jurisprudence of other state parties and treaty supervisory bodies? And what account, if any, should be taken of state practice that limits or denies refugee rights, in particular where that practice pushes against an understanding derived from text, context, object and purpose? This chapter seeks to answer the third challenge by providing a clear and succinct explanation of how the codification of the rules of treaty interpretation in the Vienna Convention on the Law of Treaties should be applied in the field of refugee rights.31 The view developed below is that not only is a literalist 30 31

Ibid. at [37]. The International Court of Justice has determined that the core rules of treaty interpretation stated in the Vienna Convention are principles of customary international law. For example,“[a]lthough that Convention is not in force between the Parties and is not, in any event, applicable to treaties concluded before it entered into force . . . it is well established that Articles 31 to 33 of the Convention reflect rules of customary international law”: Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia), [2016] ICJ Rep 3, at [35]. Similarly, the Court has affirmed that it will interpret international law “in terms of customary international law on the subject, as reflected in Articles 31 and 32 of the Vienna Convention on the Law of Treaties . . . Consequently, neither the fact that Nicaragua is not a party to the Vienna Convention on the Law of Treaties nor the fact that the treaty which is to be interpreted here considerably pre-dates the draft of the said Convention has the effect of preventing the Court from referring to the principles of interpretation set forth in Articles 31 and 32”: Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicaragua), [2009] ICJ Rep 213, at [47]. See generally the precedents cited at Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, [2007] ICJ Rep 43, at [160]. Thus,“Articles 31 and 32 of the Vienna

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approach to treaty interpretation indefensible as a matter of international law, but so too is any approach that treats context, object and purpose as subordinate or auxiliary to text. While in a mechanical sense a treaty’s text is clearly the starting point for analysis, text must be read in a way that advances the treaty’s object and purpose, and that ensures its effectiveness in its legal and social context – what I term an interactive approach to treaty interpretation.

2.1 The Perils of “Ordinary Meaning” The well-known general rule of treaty interpretation, codified in Art. 31(1) of the Vienna Convention on the Law of Treaties, is that “[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”32 Paragraph 2 of Art. 31 defines the “context” relevant to treaty interpretation; paragraph 3 requires that this understanding of a treaty’s “context” be supplemented by interpretive agreements between the parties, subsequent practice of parties in application of the treaty, and relevant rules of international law; and paragraph 4 validates special meanings intended to be given to treaty terms by the parties.33 As emphasized by the International Law Commission, which drafted the provision,34 this rather complex formulation35 was adopted in order

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Convention on the Law of Treaties [that] set forth, respectively, the general rule of interpretation and the rule on supplementary means of interpretation . . . apply as customary international law”: International Law Commission, “Subsequent agreements and subsequent practice in relation to the interpretation of treaties: Text of the draft conclusions provisionally adopted by the Drafting Committee on first reading,” UN Doc. A/CN.4/L.874 (June 6, 2016), at Draft Conclusion 2(1). Vienna Convention, at Art. 31(1). “Article 31(4) . . . was nearly deleted by the International Law Commission in a late draft of what became the Vienna Convention, on the basis that the so-called ‘special’ meaning would in any case be the ‘ordinary’ meaning in the particular context, in terms of the Article 31(1) rules. The reference to a special meaning does not seem to add much to the other provisions, probably only emphasizing the burden of proof resting on those claiming such a meaning”: M. Lennard, “Navigating by the Stars: Interpreting the WTO Agreements,” (2002) 5 Journal of International Economic Law 17 (Lennard, “Navigating by the Stars”), at 44–45. In line with this view, no separate treatment is given here to Art. 31(4) sources. “The Commission’s proposals . . . were adopted virtually without change by the Conference and are now reflected in Articles 31 and 32 of the Convention”: I. Sinclair, The Vienna Convention on the Law of Treaties (1984) (Sinclair, Vienna Convention), at 115. Mortenson describes the Vienna Convention’s interpretive process as “a recursive and inelegant process that would spiral toward the meaning of a treaty, rather than as a rigidly linear algorithm tied to a particular hierarchical sequence”: J. Mortenson, “The Travaux of Travaux: Is the Vienna Convention Hostile to Drafting History?,” (2013) 107 American Journal of International Law 780 (Mortenson, “Travaux of Travaux”), at 781.

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to indicate that the application of the means of interpretation in the article would be a single combined operation. All the various elements, as they were present in any given case, would be thrown into the crucible, and their interaction would give the legally relevant interpretation. Thus [Art. 31] is entitled “General rule of interpretation” in the singular, not “General rules” in the plural, because the Commission desired to emphasize that the process of interpretation is a unity and that the provisions of the article form a single, closely integrated rule.36

It is thus clear that Art. 31(1) embodies what is termed here an interactive understanding of treaty interpretation.37 The article “refers the interpreter to the concurrent use of no less than three methods, viz., the grammatical (ordinary meaning to be given to the terms of the treaty), the systematic (in their context) and the teleological method (in the light of its object and purpose).”38 There is no hierarchy among these points of reference,39 each of which must always be taken into account: 36

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[1966] 2 Yearbook of the International Law Commission, at 219–220. The Commission confirmed this approach in 2013, finding that “[t]he interpretation of a treaty consists of a single combined operation, which places appropriate emphasis on the various means of interpretation indicated, respectively, in articles 31 and 32”: International Law Commission, “Report on the Work of the 65th Session,” UN Doc. A/68/10, at Conclusion 1(5) (2013). This phrasing has been employed in a report of the International Law Commission: “Second report on subsequent agreements and subsequent practice in relation to treaty interpretation,” UN Doc. A/CN.4/671 (Mar. 26, 2014), at [20]. An interactive approach is to be distinguished from a hierarchical approach under which context, object, and purpose are to be considered only where a treaty’s text cannot be relied upon to disclose its “ordinary meaning”: see e.g. M. Fitzmaurice, “The Law and Procedure of the International Court of Justice 1951–4: Treaty Interpretation and Other Treaty Points,” (1957) 33 British Yearbook of International Law 203, at 204–207; and D. O’Connell, International Law (1970), at 253 (“In so far as [the logic inherent in the treaty] can be discovered by reference to the terms of the treaty itself, it is impermissible to depart from those terms. In so far as it cannot, it is permissible”). An interactive approach is also to be distinguished from a teleological approach, in which object and purpose are treated as supreme: see e.g. Separate Opinion of Judge Cançado Trindade in Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia), [2016] ICJ Rep 3, at [22]–[27]. M. Bos, “Theory and Practice of Treaty Interpretation,” (1980) 27 Netherlands International Law Review 135 (Bos, “Theory and Practice”), at 145; P. Reuter, Introduction to the Law of Treaties (1995) (Reuter, Law of Treaties), at 75 (“These carefully and subtly graduated elements constitute, primarily and simultaneously, the basic guidelines of interpretation”). “Although at first sight paragraphs (1), (2) and (3) might appear to create a hierarchy of legal norms, that is not so: the three paragraphs represent a logical progression, nothing more”: A. Aust, Modern Treaty Law and Practice (2013) (Aust, Modern Treaty Law), at 208. Judge Schwebel put the point succinctly, arguing that the apparently “hierarchical structure of Articles 31 and 32 of the Vienna Convention . . . is unreal”: S. Schwebel, “May Preparatory Work Be Used to Correct Rather Than Confirm the ‘Clear’ Meaning of a Treaty Provision?,” in J. Makarczyk ed., Theory of International Law at the Threshold of the 21st Century: Essays in Honour of Krzysztof Skubiszewski 797 (1996) (Schwebel,

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[I]nterpretation remains one integrated operation, which uses several tools simultaneously to shed light from different angles on the interpreted text; tools that should not be seen as watertight compartments or as a series of separate sub-operations but, rather, as connected (even overlapping) and mutually reinforcing parts of a whole; of a continuum or continuous and multifaceted process that cannot be reduced to a mechanical operation and which partakes as much of art (the art of judgement) as of science (the science of law).40

The guidance afforded by the International Court of Justice is similarly supportive of an interactive understanding of the basic rule of treaty interpretation.41 The Court has determined that one must certainly start . . . from the “ordinary meaning” of the terms used . . . but not in isolation. For treaty interpretation rules there is no “ordinary meaning” in the absolute or the abstract. That is why Article 31 of the Vienna Convention refers to “good faith” and to the ordinary meaning “to be given” to the terms of the treaty “in their context and in light of its object and purpose.” It is, therefore, a fully qualified “ordinary meaning” . . . The elucidation of the “ordinary meaning” of terms used in the treaty to be interpreted requires . . . that due account be taken of those various interpretative principles and elements, and not only of the words or expressions used in the interpreted provisions in isolation [emphasis added].42

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“Preparatory Work”), at 799. Thus, “Article 31 accords exactly the same status to all the materials it mentions”: D. Regan, “Understanding What the Vienna Convention Says about Identifying and Using ‘Sources for Treaty Interpretation,’” in S. Besson and J. d’Aspremont eds., The Oxford Handbook on the Sources of International Law 1047 (2017) (Regan, “Understanding What the Vienna Convention Says”), at 1051. G. Abi-Saab, “The Appellate Body and Treaty Interpretation,” in G. Sacerdoti, A. Yanovich, and J. Bohanes eds., The WTO at Ten: The Contribution of the Dispute Settlement System 453 (2006), at 459. “After an initial period of hesitation, the ICJ began to refer to articles 31 and 32 of the Vienna Convention in the 1990s . . . Although the Court usually begins its reasoning by looking at the text, it has, in general, not relied on a primarily textual approach but rather resorted to other means of interpretation. The Court’s reluctance to assign a more prominent role to a provision’s ordinary meaning is ultimately the consequence of the Court’s emphasis on object and purpose”: International Law Commission, “First report on subsequent agreements and subsequent practice in relation to treaty interpretation,” UN Doc. A/ CN.4/660, at [10], [19] (2013). The European Court of Human Rights has also adopted the view that “[i]n the way in which it is presented in the ‘general rule’ of Article 31 of the Vienna Convention on the Law of Treaties, the process of interpretation is a unity, a single combined operation; this rule, closely integrated, places on the same footing the various elements enumerated in the four paragraphs of the Article”: Golder v. United Kingdom, (1975) 1 EHRR 524 (ECtHR, Feb. 21, 1975), at [30]. Land, Island and Maritime Frontier Dispute (El Salvador v. Honduras), [1992] ICJ Rep 351, at 719 (Separate Opinion of Judge Torres Bernardez). In at least one more recent case, however, the Court appeared to give a more prominent role to text in the interpretive

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Thus, “[t]he word obtains its meaning from the context in which it was used”;43 indeed, “[w]ords communicate their meaning from the circumstances in which they are used. In a written instrument their meaning primarily is to be ascertained from the context, setting, in which they are found [emphasis added].”44 There is, however, no doubt that literalism continues to have real appeal, particularly to governments and courts anxious to be seen to be making “more objective” decisions.45 There is an undeniable comfort in the possibility of simply looking up a disputed term in the dictionary. Yet this is false objectivity at its worst,46 since it is surely right that “[e]tymological and grammatical bases are arbitrary and unreliable; their use is of limited theoretical value and fruitless as a method of proof.”47 The risks of dictionary-shopping48 and of serious interpretive inconsistency are moreover magnified when there is more than one authentic linguistic version of a treaty,49 nearly always the case for

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process: see Legality of Use of Force (Serbia and Montenegro v. Canada), Preliminary Objections, [2004] ICJ Rep 1307, at [100]. Constitution of the Maritime Safety Committee of the Intergovernmental Maritime Consultative Organization (IMCO), [1960] ICJ Rep 150, at 158. Certain Expenses of the United Nations, [1962] ICJ Rep 151, at 184 (Separate Opinion of Judge Spender). See e.g. EN (Serbia) v. Secretary of State for the Home Department, [2009] EWCA Civ 630 (Eng. CA, June 26, 2009), at [118], per Laws J. (concurring): “[A] treaty usually represents a negotiated settlement, a compromise, whose terms will have been carefully chosen so as to identify the limits of what has been agreed. True it is that sometimes the edges are left unclear; that, too, may be deliberate, the parties preferring to leave some matters to the chance of judicial interpretation rather than run the risk of losing the agreement altogether. Overall, however . . . any issue of what may be implied into the treaty’s express terms has to be approached with the courts with great caution. We are not here to overstep what was agreed after painstaking negotiation . . . [A]ny gloss on the express words . . . is to be avoided.” McNair was of the view that the duty to give treaty terms their “ordinary meaning” “begs the question whether the words are, or are not clear – a subjective matter because they may be clear to one man and not clear to another, and frequently to one or more judges and not to their colleagues”: Lord McNair, The Law of Treaties (1961) (McNair, Treaties), at 372. Bos, “Theory and Practice,” at 149. Justice Kirby of the High Court of Australia, while acknowledging that reliance on dictionaries is “a natural enough course to adopt, common in elucidating the meaning of statutes and other written instruments expressed in words,” nonetheless opined that he was “now inclined to see more clearly than before the dangers in the use of dictionary definitions” in the context of construing an international treaty: Minister for Immigration and Multicultural Affairs v. Khawar, (2002) 2010 CLR 1 (Aus. HC, Apr. 11, 2002), at [106], [108]. “[I]t is an approach which lends itself to an unseemly ransacking of dictionaries for the mot juste appropriate to the case at hand. This does not assist in a principled analysis of the issues”: Refugee Appeal 71427/99 (NZ RSAA, Aug. 16, 2000), at 11. “When a treaty has been authenticated in two or more languages, the text is equally authoritative in each language, unless the treaty provides or the parties agree that, in case of divergence, a particular text shall prevail”: Vienna Convention, at Art. 33(1).

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refugee and other international human rights treaties.50 In such circumstances, it is difficult to imagine how a coherent, transnational understanding of a treaty can emerge51 from a predominant focus on text.52 This is not to suggest that the inherent fungibility of language means that text should not be carefully considered in the construction of a treaty,53 but simply that the perusal of text – while critical – is only the starting point54 in the process of interpreting a treaty.55 As Aust has cogently concluded, “[p]lacing undue 50

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In the case of the Refugee Convention, the English and French texts are equally authoritative: Refugee Convention, at Conclusion. For the Refugee Protocol, as well as for the two Human Rights Covenants, the situation is still more complex, as the Chinese, English, French, Russian, and Spanish texts are equally authentic: Refugee Protocol, at Art. XI; Civil and Political Covenant, at Art. 53; Economic and Social Covenant, at Art. 31. As Alston and Goodman observed, “[s]ometimes corresponding words in the different versions may shed more light on the intended meaning; at other times, they generate greater ambiguity”: P. Alston and R. Goodman, International Human Rights (2013), at 118. “The Refugee Convention must be given an independent meaning . . . without taking colour from distinctive features of the legal system of any individual contracting state. In principle there can be only one true interpretation of a treaty”: R v. Secretary of State for the Home Department ex parte Adan, [2001] 2 AC 477 (UK HL, Dec. 19, 2000), at 516, per Lord Steyn. As Regan has observed, “[t]he goal of interpretation under the VCLT is not uniform assignment of a particular meaning to particular words. The goal is to make of the treaty a coherent normative whole that realizes the parties’ common intentions”: Regan, “Understanding What the Vienna Convention Says,” at 1051. “Choosing to rely upon nothing else but the text of the treaty, one delivers onself up to all its possible shortcomings . . . For, as one might have expected, it is not immediately clear what the implications of the concept are: what, indeed, is the ordinary sense of ‘ordinary meaning’?”: Bos, “Theory and Practice,” at 147–149. While insisting that the Refugee Convention must be interpreted “in the light of its object and purpose . . . as an international instrument, not a domestic statute,” the Supreme Court of the United Kingdom nonetheless appropriately cautioned that “the starting point of the construction exercise should be the text of the Convention itself . . . There is no want of good faith if the Convention is interpreted as meaning what it says and the contracting states decline to do something that its language does not require them to do”: R (ST, Eritrea) v. Secretary of State for the Home Department, [2012] UKSC 12 (UK SC, Mar. 21, 2012), at [30]–[31]. This view aligns with the earlier approach taken by the Court of Appeal in R (Hoxha) v. Secretary of State for the Home Department, [2002] EWCA Civ 1403 (Eng. CA, Oct. 14, 2002), at [48], where the Court determined that the broad humanitarian aims of the treaty could not override the “agreed limitations which are contained within the terms of the Convention itself,” specifically “the particular causes of persecution which have to be shown.” For this reason, “[w]here [a literal] method of interpretation results in a meaning incompatible with the spirit, purpose and context of the clause or instrument in which the words are contained, no reliance can validly be placed on it”: South West Africa Case (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, [1962] ICJ Rep 319, at 336. “It is of course true that in construing any document the literal meaning of the words used must be the starting point. But the words must be construed in context, and an instrument such as the Refugee Convention must be given a purposive construction consistent with its humanitarian aims”: R v. Asfaw, [2008] UKHL 31 (UK HL, May 21, 2008), at [11]. The Inter-American Court of Human Rights has similarly observed that “the ‘ordinary

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emphasis on text, without regard to what the parties intended; or on what the parties intended, regardless of the text; or on the perceived object and purpose in order to make the treaty more ‘effective,’ irrespective of the intentions of the parties, is unlikely to produce a satisfactory result.”56 The interpretive exercise is meant to be a genuinely interactive inquiry, in which words, context, object and purpose are simultaneously considered. The goal is not simply to understand text, but is rather to give meaning to words in a way that is genuinely respectful of the often complex process by which visions of rights are mooted across cultural, political, and linguistic divides and become law.

2.2 Context Consideration of the “context” of a treaty provision – the second key element in the interpretive crucible – involves analysis of, first, surrounding text, including the treaty’s preamble and annexes; second, agreements relating to the treaty made or accepted by the parties to the treaty; third, subsequent interpretive agreements or interpretive practices of the parties to the treaty; and fourth, relevant rules of international law governing relationships among the parties to the treaty.57 With the exception of the interpretive practices component58 – a question considered in

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meaning’ of terms cannot of itself become the sole rule, for it must always be considered within its context and, in particular, in the light of the object and purpose of the treaty”: Proposed Amendments to the Naturalization Provisions of the Constitution of Costa Rica (Advisory Opinion OC-4/84), Ser. A No. 4 (IACtHR, Jan. 19, 1984), at [23]; and Article 55 of the American Convention on Human Rights (Advisory Opinion OC-20/09), Ser. A No. 20 (IACtHR, Sept. 29, 2009), at [26]. Aust, Modern Treaty Law, at 206. One of the earliest clear commitments to a broad, interactive understanding of treaty interpretation in the context of refugee law was stated by Chief Justice Brennan of the High Court of Australia: “In interpreting a treaty, it is erroneous to adopt a rigid priority in the application of interpretative rules . . . Although the text of a treaty may itself reveal its object and purpose or at least assist in ascertaining its object and purpose, assistance may also be obtained from extrinsic sources. The form in which a treaty is drafted, the subject to which it relates, the history of its negotiations and comparison with earlier or amending instruments relating to the same subject may warrant consideration in arriving at the true interpretation of its text”: Applicant “A” and Another v. Minister for Immigration and Multicultural Affairs, (1997) 190 CLR 225 (Aus. HC, Feb. 24, 1997), per Brennan C.J. As subsequently observed by two judges of the Full Federal Court, Chief Justice Brennan’s approach provides that “a wider range of extrinsic sources may be referred to than in the case of domestic statutes and they are not only legitimately considered after some ambiguity has been discovered. The point of the ‘holistic’ approach is to enable a simultaneous consideration of the treaty text and useful and valid extrinsic materials elucidating it”: QAAH of 2004 v. Minister for Immigration and Indigenous Affairs, [2005] FCAFC 136 (Aus. FFC, July 27, 2005), per Wilcox J. and Madgwick J. (dissenting). Vienna Convention, at Art. 31(2)–(3). Consideration must be given to “any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation”: Vienna Convention, at Art. 31(3)(b).

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more detail below59 – it is thus clear that the analysis of context is in fact a textual enterprise, albeit one that requires attention to matters significantly beyond the specific provision that is the focus of analysis.60 Turning first to the core contextual inquiry, some issue-specific value is clearly garnered from the Final Act of the conference that adopted the Refugee Convention61 – containing, for example, a clear commitment on the question of family unity.62 But the component of core context with the most farreaching force is clearly the Convention’s Preamble. The Preamble is a critical source of contextual guidance since, as Judge Weeramantry has noted, it is a principal and natural source from which indications can be gathered of a treaty’s objects and purposes even though the preamble does not contain substantive provisions. Article 31(2) of the Vienna Convention sets this out specifically . . . [T]his Court . . . has made substantial use of it for interpretational purposes.63

In the case of the Refugee Convention, the Supreme Court of the United Kingdom has adopted the view that there is a duty to give “the [Refugee] Convention . . . a generous and purposive interpretation, bearing in mind its humanitarian objects and the broad aims reflected in its preamble.”64 Indeed, 59 60

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See Chapter 2.4. Technical and colloquial understandings can unfortunately sometimes commingle in the jurisprudence. For example, a judge of the Full Federal Court of Australia invoked “context” in the sense both of the Convention’s preamble and cognate human rights duties as well as “the context of the likely circumstances of refugees” to argue against an interpretation of cessation of refugee status that would interrupt the stability of the lives of refugees: QAAH of 2004 v. Minister for Immigration and Multicultural and Indigenous Affairs, [2005] FCAFC 136 (Aus. FFC, July 27, 2005), per Madgwick J. (dissenting), at [106]. “Final Act of the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons,” 189 UNTS 37. See Chapter 4.6. Arbitral Award of 31 July 1989 (Guinea–Bissau v. Senegal), [1991] ICJ Rep 53, at 142 (Dissenting Opinion [on another point] of Judge Weeramantry). See also reliance by the International Court of Justice on the preamble to a treaty for interpretive purposes in Rights of Nationals of the United States in Morocco, [1952] ICJ Rep 176, at 196; and Asylum Case (Colombia/Peru), [1950] ICJ Rep 266, at 282. R (ST, Eritrea) v. Secretary of State for the Home Department, [2012] UKSC 12 (UK SC, Mar. 21, 2012), at [30]. See also AD (Palestine), Dec. No. 800693–695 (NZ IPT, Dec. 23, 2015), at [134]–[137]; and AC (Syria), Dec. No. 800035 (NZ IPT, May 27, 2011), at [64]– [66]. Context is, of course, only one factor in the interactive interpretive process. In European Roma Rights Centre v. Immigration Officer at Prague Airport, [2002] EWCA 1989 (Eng. QBD, Oct. 8, 2002), portions of the Preamble to the Convention were invoked to contest the legality of efforts to prevent would-be refugees from departing their own country. On the facts of the case, however, the court reasonably held that the Refugee Convention’s general commitment to respect for human rights could not compel an interpretation at odds with the ordinary meaning of the treaty, which plainly grants rights only to a person who is “outside the country of his nationality”: ibid. at [42]–[43].

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the first two operative paragraphs of the Preamble to the treaty unequivocally establish the human rights purposes of the Refugee Convention: The High Contracting Parties, Considering that the Charter of the United Nations and the Universal Declaration of Human Rights . . . have affirmed the principle that human beings shall enjoy fundamental rights and freedoms without discrimination, Considering that the United Nations has, on various occasions, manifested its profound concern for refugees and endeavoured to assure refugees the widest possible exercise of these fundamental rights and freedoms, ... Have agreed as follows.65

The Preamble to the Refugee Protocol similarly affirms the fundamental human rights purpose of the regime, and expressly stipulates the intention of state parties to ensure that “equal status should be enjoyed by all refugees,” including those who became refugees as the result of “new refugee situations [that] have arisen since the [1951] Convention was adopted.”66 Taken together, these core elements of context require a reading of specific provisions that is consistent with the overarching commitment to enabling refugees to exercise fundamental rights and freedoms, and specifically require that the Eurocentric tenor of the 1951 Convention be read down in the interests of ensuring that refugee protection is substantively meaningful to refugees for all time, and in all places. Beyond the core elements of context, interpreters must also take account of both subsequent interpretive agreements between the parties and of subsequent practice that establishes the agreement of the parties on how the treaty should be interpreted.67 While these provisions require formal or de facto 65 66 67

Refugee Convention, at Preamble, [1], [2], [3], [8]. Refugee Protocol, at Preamble, [3], [4]. Vienna Convention, Art. 31(3)(a) and (b). In general, “[t]he jurisprudence of international courts and other adjudicative bodies shows a certain reluctance to clearly distinguish between subsequent agreements [under Art. 31(3)(a)] and subsequent practice [under Art. 31(3)(b)]”: International Law Commission, “First report on subsequent agreements and subsequent practice in relation to treaty interpretation,” UN Doc. A/CN.4/660 (Mar. 19, 2013), at [71]. This may in truth be of little practical import since “[t]he distinction between any ‘subsequent agreement’ . . . and ‘subsequent practice which establishes the agreement of the parties’ . . . does not denote a difference concerning their authentic character”: International Law Commission, “Draft conclusions on subsequent agreements and subsequent practice in relation to the interpretation of treaties, with commentaries,” UN Doc. A/73/10 (Aug. 8, 2018), at Conclusion 3, Commentary [10]. The regional refugee regimes implemented in Africa and Europe are not “subsequent agreements” for purposes of Art. 31(3)(a). As the International Law Commission has observed, “[t]reaties with a broader membership are sometimes implemented by subsequent bilateral or regional agreements . . . Such bilateral treaties are not, as such, subsequent agreements in the sense of article 31(3)(a) of the Vienna Convention since they are only concluded between a limited number of the parties to the multilateral treaty. However, if taken together and

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agreement among “the parties,” the International Law Commission did not accept a proposal to require the consent of all parties to a treaty as a condition for their application.68 On the other hand, this flexibility must be applied with caution given international law’s commitment that no grouping of states can impose obligations on a third state without the latter’s express or implied consent thereto.69 As Judge Spender observed, In the case of multilateral treaties, the admissibility and value as evidence of subsequent conduct of one or more parties thereto encounter particular difficulties. If all the parties to a multilateral treaty where the parties are fixed and constant pursue a course of conduct in their attitude to the text of the treaty, and that course of conduct leads to an inference, and one inference only, as to their common intention and understanding at the time they entered into the treaty as to the meaning of the text, the probative value of their conduct . . . is manifest. If, however, only one or some but not all of them by subsequent conduct interpret the text in a certain manner, that conduct stands upon the same footing as the unilateral conduct of one party to a bilateral treaty. The conduct of such one or more could not of itself have any probative value or provide a criterion for judicial interpretation [emphasis added].70

The International Court of Justice has thus traditionally been disinclined to promote ease of reliance on Art. 31(3)(b) at the expense of overriding the views of state parties to a treaty. At the very least, there must be

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sufficiently consistent and widespread, they may establish an agreement between all the parties regarding the meaning and scope of a respective multilateral treaty provision”: International Law Commission, “First report on subsequent agreements and subsequent practice in relation to treaty interpretation,” UN Doc. A/CN.4/660 (Mar. 19, 2013), at [80]. [1966] 2 Yearbook of the International Law Commission 222. The rejection of this requirement may be read, however, as a rejection of the requirement for the express (rather than simply passive) assent of all parties to the interpretive practice in question. The International Law Commission has accordingly suggested that “[s]ilence on the part of one or more parties can constitute acceptance of the subsequent practice when the circumstances call for some reaction”: International Law Commission, “Subsequent agreements and subsequent practice in relation to the interpretation of treaties: Text of the draft conclusions provisionally adopted by the Drafting Committee on first reading,” UN Doc. A/CN.4/L.874 (June 6, 2016), at Draft Conclusion 10(2). This view aligns with the opinion of Aust who concludes that “[i]t is not necessary to show that each party has engaged in a practice, only that all have accepted it, albeit tacitly”: Aust, Modern Treaty Law, at 216. See Vienna Convention, at Arts. 34 (“A treaty does not create either obligations or rights for a third State without its consent”) and 35 (“An obligation arises for a third State from a provision of a treaty if the parties to the treaty intend the provision to be the means of establishing the obligation and the third State expressly accepts that obligation in writing”). Certain Expenses of the United Nations, [1962] ICJ Rep 151, at 191 (Separate Opinion of Judge Spender).

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evidence of unambiguous acquiescence in the allegedly interpretive practice71 – something that will be rare in the case of international refugee law given the paucity of deliberative processes from which an expectation of engagement might arise.72 One important mechanism for generating interpretive consensus is a conference of state parties to a treaty.73 While the Refugee Convention does not establish a continuing process of review at state party conferences 71

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In the Asylum Case, for example, Judge Read indicated that the practice of all parties to a treaty should be taken into account (though in the case at hand lack of time, space, and information compelled him to review only the practice of the disputing states): Asylum Case (Colombia/Peru), [1950] ICJ Rep 266. Judge van Wyk observed that “[t]he weight to be attached to such conduct must necessarily depend on the circumstance of each case. Where for a relatively lengthy period after the execution of any agreement, all the parties by conduct accept the position that the agreement does not embody a particular obligation, then such conduct must bear considerable weight in a determination whether that obligation exists or not [emphasis added]”: South West Africa Case (Ethiopia v. South Africa; Liberia v. South Africa), Second Phase, [1966] ICJ Rep 6, at 135–136 (Separate Opinion of Judge van Wyk). And in the Namibia Case, Judge Spender reiterated his view that a treaty “cannot be altered by the will of the majority of the member states, no matter how often that will is expressed or asserted against a protesting minority and no matter by how large the majority – or how small the minority”: Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), [1971] ICJ Rep 16, at 31. This view was affirmed in the case by Judge Bustamante (ibid. at 291), and by Judge Winiarski in his dissenting opinion (ibid. at 234). As the International Law Commission has explained in relation to human rights treaty bodies, “[w]hereas a pronouncement by a human rights expert body can, in principle, give rise to a subsequent agreement or a subsequent practice by the parties under article 31, paragraph (3)(a) and (b), this result is not easily achieved in practice. Most human rights treaties at the universal level have many parties. It will often be difficult to establish that all parties have accepted, explicitly or implicitly, that a particular pronouncement of an expert body expresses a particular interpretation of the treaty”: International Law Commission, “Draft conclusions on subsequent agreements and subsequent practice in relation to the interpretation of treaties, with commentaries,” UN Doc. A/73/10 (Aug. 8, 2018), at Conclusion 13, Commentary [12]. Indeed, the ILC earlier observed that “[i]n fact, expert bodies under human rights treaties themselves have rarely attempted to specifically identify the practice of the parties for the purpose of interpreting a particular treaty provision”: International Law Commission, “Fourth report on subsequent agreements and subsequent practice in relation to treaty interpretation,” UN Doc. A/CN.4/694 (Mar. 7, 2016), at [44]. “A decision adopted within the framework of a Conference of States Parties embodies a subsequent agreement or subsequent practice under article 31, paragraph 3, in so far as it expresses agreement in substance between the parties regarding the interpretation of a treaty, regardless of the form and the procedure by which the decision was adopted, including by adoption by consensus”: International Law Commission, “Draft conclusions on subsequent agreements and subsequent practice in relation to the interpretation of treaties, with commentaries,” UN Doc. A/73/10 (Aug. 8, 2018), at Conclusion 11(3). The Commission does not take a clear position on whether such decisions are better viewed as an “agreement” under Art. 31(3)(a) or as “practice” under Art. 31(3)(b).

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as do some other treaties,74 state parties have convened twice to renew their commitment to the Refugee Convention.75 Ministers meeting in 2011 to mark the sixtieth anniversary of the Refugee Convention reaffirmed the Convention and Protocol as “the foundation of the international refugee protection regime [with] enduring value and relevance in the twenty-first century [and] . . . recognize[d] the importance of respecting and upholding the principles and values that underlie these instruments, including the core principle of nonrefoulement.”76 This declaration built on the Declaration of States Parties issued on the fiftieth anniversary of the Refugee Convention, recognizing, inter alia, that the 1951 Convention is of “enduring importance”; that all persons within its scope are entitled to “rights, including human rights, and minimum standards of treatment”; and specifically acknowledging “the continuing relevance and resilience of this international regime of rights and principles.”77 Echoing the purport of the Preambles described above,78 the declarations of state parties thus make clear that the rights established by the Refugee Convention must be interpreted in a manner that is sufficiently resilient to ensure their contemporary relevance.79 74

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Such processes are described in detail in International Law Commission, “Second report on subsequent agreements and subsequent practice in relation to treaty interpretation,” UN Doc. A/CN.4/671 (Mar. 26, 2014), at [76] ff. Importantly, “[i]t . . . cannot simply be said that because the treaty does not accord the Conference of the States Parties a competence to take legally binding decisions, their decisions are necessarily legally irrelevant and constitute only political commitments”: International Law Commission, “Draft conclusions on subsequent agreements and subsequent practice in relation to the interpretation of treaties, with commentaries,” UN Doc. A/ 73/10 (Aug. 8, 2018), at Conclusion 11, Commentary [26]. “Ministerial Communiqué,” UN Doc. HCR/MINCOMMS/2011/16, Dec. 8, 2011, at [2]. “Declaration of States Parties to the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees,” UN Doc. HCR/MMSP/2001/09, Dec. 13, 2001, incorporated in Executive Committee of the High Commissioner’s Program, “Agenda for Protection,” UN Doc. EC/52/SC/CRP.9/Rev.1, June 26, 2002. The Declaration was welcomed by the UN General Assembly in UNGA Res. A/RES/57/187, Dec. 18, 2001, at [4]. The December 2001 Ministerial Meeting has particular significance in that it was the first occasion on which a meeting at the ministerial level of all state parties to the Refugee Convention and Protocol was convened. See text at note 66. In the view of the International Law Commission, “[t]he respective character of a decision of a Conference of State Parties . . . must always be carefully identified. For this purpose, the specificity and clarity of the terms chosen in the light of the Conference of State Parties’ decision as a whole, its object and purpose, and the way in which it is applied, need to be taken into account”: International Law Commission, “Draft conclusions on subsequent agreements and subsequent practice in relation to the interpretation of treaties, with commentaries,” UN Doc. A/73/10 (Aug. 8, 2018), at Conclusion 11, Commentary [23]. In the case of the two conferences of state parties to the Refugee Convention and Protocol, the specificity and clarity of the commitments made on matters directly regulated by those treaties is unmistakable.

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A more robust means of generating interpretive consensus is the process of drafting and adopting conclusions on international protection undertaken by the state members of the Executive Committee of the UNHCR.80 These conclusions81 are imperfect elements of context since not all state parties are members of the Executive Committee and some non-party states are members.82 Yet the overwhelming majority of the states represented on the Executive Committee are parties to the Convention or Protocol, and all state parties are invited to observe and to comment upon draft proposals under consideration by the Executive Committee.83 In practical terms, it is difficult to imagine how subsequent agreement among the 148 state parties to the refugee treaties could be more effectively generated.84 The Conclusions on International Protection – speaking to such critical concerns as the duty to provide asylum, detention, discrimination, documentation, education, empowerment, expulsion, health, illegal entry, local integration, nonrefoulement, personal security, repatriation, resettlement, and sexual violence – should thus be understood to exemplify state practice capable of establishing interpretive agreement among state parties to the Refugee Convention.85 80

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The Executive Committee was established by ECOSOC Res. 672 (XXV), and commenced operation on January 1, 1959. It comprises ninety-eight state members and meets annually to inter alia advise the High Commissioner on the exercise of his protection responsibilities. See UNHCR, “Conclusions on International Protection Adopted by the Executive Committee of the UNHCR Programme, 1975–2017,” UN Doc. HCR/IP/3/Eng/REV. 2017. UNHCR has also issued “A Thematic Compilation of Executive Committee Conclusions” (2014), which organizes relevant Executive Committee Conclusions under seventy-three major chapters. No Conclusions on International Protection were issued in 2018 or 2019, with a decision on a future workplan delayed until 2020: UNHCR Executive Committee, “Notes of the Rapporteur, 18–20 June 2019,” www.unhcr.org/5d0b442c7.pdf, accessed Feb. 1, 2020. The only requirement is that state members be chosen “on the widest possible geographical basis from those states with a demonstrated interest in, and devotion to, the solution of the refugee problem”: UNGA Res. 1166 (XII). In such circumstances, there is a reasonable expectation that state parties will engage the draft conclusions, failing which they may be argued to have acquiesced in them: see notes 71–72. “Silence on the part of one or more parties may constitute acceptance of the subsequent practice when the circumstances call for some reaction”: International Law Commission, “Draft conclusions on subsequent agreements and subsequent practice in relation to the interpretation of treaties, with commentaries,” UN Doc. A/73/10 (Aug. 8, 2018), at Conclusion 10(2). The ILC has more specifically noted that “[t]he ‘circumstances’ that ‘will call for some reaction’ include the particular setting in which the States parties interact with each other in respect of the treaty”: ibid., at Conclusion 10, Commentary [14]. Aust cites as an example the unquestioned practice of treating non-objection by a permanent member state of the UN Security Council as a “concurring” vote for purposes of Art. 27(3) of the UN Charter: Aust, Modern Treaty Law, at 216. See generally Chapter 1.5.2.

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In addition to the interpretive conclusions agreed by states, it is sometimes suggested that the policy guidance afforded by staff of the UNHCR should also be assimilated to the context of the Refugee Convention. This argument is plausible – in particular where the Executive Committee has called for the issuance of a specific form of guidance and ratified it once produced.86 But given the absence of a deliberative process among states in the development of most of the agency’s guidance notes, the better view is that agency advice is not part of the context of the Refugee Convention. The interpretive role of UNHCR advice is more limited, deriving from the duty of state parties to cooperate with the agency pursuant to Art. 35 of the Refugee Convention. State parties must, by virtue of Art. 35, seriously consider UNHCR views in adjudicating or otherwise fashioning their compliance with the Refugee Convention.87 As a matter of treaty interpretation, however, standards that do not evince the consent of states are not to be assimilated to the context of the treaty as obligatory interpretive benchmarks. A fourth aspect of the inquiry into context recognized by the Vienna Convention is “any relevant rules of international law applicable in the relations between the parties.”88 Because nearly all of the state parties to the Refugee Convention or Protocol are also parties to the two UN Covenants 86

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For example, the Executive Committee “[r]equested the Office to consider the possibility of issuing – for the guidance of Governments – a handbook relating to procedures and criteria for determining refugee status and circulating – with due regard to the confidential nature of individual requests and the particular situations involved – significant decisions on the determination of refugee status”: UNHCR EXCOM Conclusion No. 8 (XVIII), at [(g)]. While Aust discusses the UNHCR’s Handbook on Procedures and Criteria for Determining Refugee Status under the rubric of Vienna Convention Art. 31(2)(a) – an agreement between all the parties in connection with the conclusion of the treaty (see Aust, Modern Treaty Law, at 212) – the better conclusion (given that the Handbook appeared in 1979) is that its interpretive relevance follows instead from Art. 31(3) as evincing subsequent agreement among the parties about how the treaty should be interpreted. Indeed, a decision of the English Court of Appeal considered the Handbook to be evidence of “international practice within article 31(3)(b) of the Vienna Convention”: R v. Secretary of State for the Home Department, ex parte Adan and Aitseguer, [1999] 3 WLR 1274 (Eng. CA, July 23, 1999, appeal to the House of Lords dismissed without comment on this issue). This conclusion is shared by the International Law Commission which noted that “State officials who are responsible for interpreting and applying the Convention relating to the Status of Refugees resort to the Office of the United Nations High Commissioner for Refugees (UNHCR) Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees as a reference work for State practice. Although the UNHCR Handbook is sometimes loosely referred to as an expression of State practice, this view has correctly been rejected by the Federal Court of Australia in Semunigus v. the Minister for Immigration and Multicultural Affairs, [1999] FCA 422 (Apr. 14, 1999), at [5]–[13]”: International Law Commission, “First report on subsequent agreements and subsequent practice in relation to treaty interpretation,” UN Doc. A/CN.4/660 (Mar. 19, 2013), at [137]. Vienna Convention, Art. 31(3)(c).

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on Human Rights,89 and because there is such frequent substantive overlap between the rights set by the Refugee Convention and those that derive from these standards of general international human rights law,90 these core human rights treaties should be taken into account in coming to an understanding of the context of the Refugee Convention.91 Importantly, Art. 31(3)(c) does not restrict reference only to norms extant at the time of a treaty’s entry into force, but extends also to contemporary law92 – thus allowing consideration of the Covenants and, indeed, of such other international human rights instruments as may over time become binding on the state parties to the Refugee Convention.93 Taken together, the various elements of context send a clear and consistent interpretive message. While detailed guidance on the scope of particular refugee rights is most readily garnered from consideration of the agreement 89

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More than 98 percent of state parties to the Refugee Convention are also parties to both of the UN Covenants on Human Rights: http://indicators.ohchr.org, accessed Feb. 1, 2020. Of the remainder, Botswana, Mozambique, Nauru, and Samoa have signed or ratified the Civil and Political Covenant, but not the Economic and Social Covenant. Only the Holy See, St. Kitts and Nevis, and Tuvalu are parties to the Refugee Convention, but to neither of the Covenants. See generally Chapters 4–7. While there is some support for the view that Vienna Convention Art. 31(3)(c) allows the broad-ranging importation of international law norms, the better view is that the norms to be considered in tandem with context must be substantively relevant: Case Concerning Oil Platforms (Islamic Republic of Iran v. United States of America), Merits, [2003] ICJ Rep 161, per President Higgins at [41]–[45]. For example, in considering the relevance of broader norms of environmental law to the anti-whaling treaty, Judge Cançado Trindade observed that “[w]ith the growth in recent decades of international instruments related to conservation, not a single one of them is approached in isolation from the others; not surprisingly, the co-existence of international treaties of this kind has called for a systemic outlook, which has been pursued in recent years”: Whaling in the Antarctic (Australia v. Japan, New Zealand intervening), [2014] ICJ Rep 226, at [25] (Separate Opinion of Judge Cançado Trindade). R. Higgins, “Some Observations on the Inter-temporal Rule in International Law,” in J. Makarczyk ed., Theory of International Law at the Threshold of the 21st Century (1996) 173. Sinclair explains that the paragraph as originally drafted by the International Law Commission initially referred only to “rules of international law in force at the time of [the treaty’s] conclusion [emphasis added].” He observes that the italicized words “were intended to reflect the general principle that a juridical fact must be appreciated in the light of the law contemporary with it. During the course of second reading in the Commission, some members suggested that the text as it then stood failed to deal with the problem of the effect of an evolution of the law on the interpretation of legal terms in a treaty and was therefore inadequate. For this reason, the Commission concluded that it should omit a temporal element and transfer this element of interpretation to paragraph 3 as being an element extrinsic both to the text and to the ‘context’ as defined in paragraph 2”: Sinclair, Vienna Convention, at 138–139. The case is strongest for reference to the Convention on the Rights of the Child, the Convention on the Elimination of Discrimination Against Women, and the Convention on the Elimination of Racial Discrimination, with more than 95 percent of state parties to the Refugee Convention or Protocol also being parties to those treaties: http://indicators .ohchr.org, accessed Feb. 1, 2020.

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between the parties evinced by the protection conclusions of the Executive Committee, the more general message – clear both in the Convention’s Preamble and in the relevant rules of international law binding the parties – is that refugee rights must be interpreted in a manner that takes real account of broader human rights commitments at international law. And at least as important, there is a clear duty – explicit in the Preamble to the Protocol, as well as in the Declarations of states on both the fiftieth and sixtieth anniversaries of the Convention – to ensure that refugee rights are interpreted in a way that gives them enduring value in all parts of the world, and which ensures their resilience in the face of new protection challenges.

2.3 Object and Purpose, Conceived as Effectiveness In contrast to the fairly straightforward purport of the duty to consider a treaty’s text and Art. 31’s specific definition of a treaty’s context and related matters, there is no express guidance in the Vienna Convention on how to apply the third part of the general rule of interpretation, respect for the treaty’s “object and purpose.” The position advanced here is that there are two steps in discerning a treaty’s object and purpose. The first is to come to an understanding of the historical intentions of the drafters of the treaty – an inquiry at times unnecessarily complicated by misguided anxiety about reliance on the preparatory work of the treaty in order to understand a treaty’s historical object and purpose.94 The second, recognizing that a treaty is to be understood as presently speaking rather than forever defined by the circumstances in which it was conceived, is to update and renew the historical “object and purpose” – a process that aligns with the more general duty to interpret a treaty in a way that ensures its effectiveness. Taken together, this two-step approach means that an interpretation made “in the light of [the treaty’s] object and purpose”95 should take account of the historical intentions of its drafters, yet temper that analysis to ensure the treaty’s effectiveness within its modern social and legal setting. The historical record of the treaty’s drafting is critical to understanding its object and purpose.96 So long as care is taken to distinguish between 94

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A detailed analysis of this issue concludes that “[f]ar from adopting a doctrinally restrictive view of drafting history, the Vienna Conference sought to secure its place as a regular, central, and indeed crucial component of treaty interpretation . . . The [common] view that Article 32 relegated travaux to an inferior position is simply wrong. The VCLT drafters . . . meant for treaty interpreters to assess drafting history for what it is worth in each case: no more, but certainly no less”: Mortenson, “Travaux of Travaux,” at 781. Vienna Convention, Art. 31(1). The travaux préparatoires of the Refugee Convention are helpfully collected in a three-volume looseleaf set: A. Takkenberg and C. Tahbaz eds., The Collected Travaux Préparatoires of the 1951 Geneva Convention relating to the Status of

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statements made which merely express one state’s views and those which drive or capture consensus, the published records of the interstate drafting process that resulted in a treaty (the travaux préparatoires)97 are often a rich source of information about its object and purpose.98 Too often, though, courts show a reluctance to acknowledge the significance of the travaux even as they sensibly rely on them.99 Yet as cogently observed by Judge Jessup,

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Refugees (1989). The main contributions to the Convention’s development were made by the Ad Hoc Committee on Statelessness and Related Problems, which met at Lake Success, New York, during January–February 1950; by a reconvened Ad Hoc Committee on Refugees and Stateless Persons, which met again at Lake Success, New York, during August 1950; and by a Conference of Plenipotentiaries, which met in Geneva during July 1951. The analysis here draws heavily on discussions in these three fora. In general terms, the travaux préparatoires comprise “the preparatory work of negotiation, discussion, and drafting that produces a final treaty text”: Mortenson, “Travaux of Travaux,” at 780. “The value of the material will depend on several factors, the most important being authenticity, completeness and availability. The summary record of a conference prepared by an independent and skilled secretariat, such as that of the United Nations, will carry more weight than an unagreed record produced by a host state or a participating state”: Aust, Modern Treaty Law, at 218. But see e.g. Reuter, Law of Treaties, at 97–98: “[R]ecourse to preparatory work means treading uncertain ground: its content is not precisely defined nor rigorously certified, and it reveals the shortcomings or potential blunders of the negotiators as well as their reluctance to confront true difficulties. Moreover, preparatory work is not always published, and even when it is there could be some misgivings about invoking it against States, even more numerous on account of the modern methods of accession, [involving states] which did not take part in the negotiations.” In some cases, however – the Refugee Convention being one – the preparatory work is carefully defined, approved by states, and published. Moreover, evidence of “shortcomings and blunders,” so long as it is recognized as such, may actually help to elucidate the meaning of provisions ultimately adopted. In these circumstances, resort to the travaux by states which choose to accede to a treaty without having participated in its negotiation enables them more clearly to understand the duties they are contemplating undertaking than would, for example, mere reliance on ambiguous text. Thus, the International Law Commission has taken the view that “[a] State acceding to a treaty in the drafting of which it did not participate is perfectly entitled to request to see the travaux préparatoires, if it wishes, before acceding”: International Law Commission, “Report on the Second Part of its Seventeenth Session and on its Eighteenth Session,” UN Doc. A/6309.Rev. 1 (1966), at 54. See e.g. the unduly narrow approach of the majority of the Supreme Court of Canada in Luis Alberto Hernandez Febles v. Canada, [2014] SCC 68 (Can. SC, Oct. 30, 2014), at [38]–[39]. The failure of the International Court of Justice to change its own approach in the early years after adoption of the Vienna Convention is no doubt partly to blame. “Despite the drafters’ express rejection of PCIJ and ICJ precedent as a model for their treaty’s approach to travaux, the ICJ continued for decades its pre-VCLT practice of ‘privileging textual interpretation’ in the Vattellian sense”: Mortenson, “Travaux of Travaux,” at 822.

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[I]t is not necessary – as some utterances of the two international courts might suggest – to apologize for resorting to travaux préparatoires as an aid to interpretation. In many instances the historical record is valuable evidence to be taken into account in interpreting a treaty. It is tradition, rather than law or logic, which has at times led to judicial statements that the evidence is used merely to confirm an interpretation which is supposed to have already been derived from the bare words of the text or even of the text in its context.100

The hesitation with which the travaux are sometimes approached largely derives from a technical point: namely, that the Vienna Convention treats the preparatory work of a treaty as a “supplementary means of interpretation” listed in Art. 32, rather than as part of the “general rule of interpretation” stated in Art. 31.101 Yet as Mortenson makes clear, the drafters of the Vienna Convention viewed Arts. 31 and 32 as “intertwined halves of a single, unitary whole.”102 Indeed, the term “supplementary” means of interpretation was actually selected in preference to the term “subsidiary” used in the Statute of the International Court of Justice precisely to avoid any implication that the travaux were not of real, often critical, interpretive value.103 As Waldock affirmed, “there had certainly been no intention of discouraging automatic recourse to preparatory works for the general understanding of a treaty [emphasis added].”104 Why then the division into Arts. 31 and 32? The answer is actually surprisingly simple: Art. 31 states the “rule” of interpretation, whereas Art. 32 defines a privileged “means” of applying that rule – exactly what the titles of the two 100

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South West Africa Case (Ethiopia v. South Africa; Liberia v. South Africa), Second Phase, [1966] ICJ Rep 6, at 352 (Dissenting Opinion of Judge Jessup). “Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable”: Vienna Convention, at Art. 32. Mortenson, “Travaux of Travaux,” at 802. The International Law Commission has recently taken essentially the same view, determining that “[t]he interpretation of a treaty consists of a single combined operation, which places appropriate emphasis on the various means of interpretation indicated, respectively, in articles 31 and 32”: International Law Commission, “Draft conclusions on subsequent agreements and subsequent practice in relation to the interpretation of treaties, with commentaries,” UN Doc. A/73/10 (Aug. 8, 2018), at Conclusion 2(5). Mortenson, “Travaux of Travaux,” at 803, n. 126. Indeed, the title originally proposed for Art. 32 – “further” means of interpretation – was changed to “supplementary” only for ease of translation into Spanish and French, with the drafters emphasizing the interchangeability of the two terms: ibid. “United Nations Conference on the Law of Treaties, Official Records of the First Session,” UN Doc. CONF.39/11, at 184 (Thirty-Third Meeting), cited in Lennard, “Navigating by the Stars,” at 24.

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articles would suggest. The drafters of the Vienna Convention wanted to make clear that the travaux – unlike text, context, and object and purpose – are not the object of the interpretive exercise.105 They are instead a source of evidence, a means to the end of understanding text, context, and object and purpose. The drafting history, in other words, is not the thing to be understood. But because the drafting history is so often a uniquely enlightening source of information, the travaux (and only the travaux) are expressly recognized in the Vienna Convention as an evidentiary source.106 Under the Vienna Convention, the travaux may be engaged to resolve ambiguity, avoid absurdity, effect special meaning, or confirm the presumptive results of interpretation.107 There is in particular quite a low threshold for deeming the text of a treaty to be “ambiguous”:108 as Judge Spender opined, “ambiguity may be hidden in the plainest and most simple of words even in their ordinary and natural meaning.”109 More generally, “[c]umulatively, these pathways permit reliance on travaux every time a treaty is interpreted.”110 Indeed, Judge Schwebel has taken the view that the mere fact of an interpretive dispute triggers the right of reliance on the travaux:111 It is undeniable that, when [the parties’] conflicting arguments are matched together, the meaning of some of the treaty’s provisions are ambiguous or obscure; indeed each of the Parties maintained that the opposing interpretation led to results which, if not manifestly absurd, were unreasonable. Thus, according to the Vienna Convention, this is a case in 105

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Specifically, the drafters were determined to make clear their rejection of the policyoriented approach to interpretation advocated by Yale Law School’s Myres McDougall: Mortenson, “Travaux of Travaux,” at 788, 802. Sinclair explains that “[t]he distinction between the general rule of interpretation and the supplementary means of interpretation is intended . . . to ensure that the supplementary means do not constitute an alternative, autonomous method of interpretation divorced from the general rule”: Sinclair, Vienna Convention, at 116. While Art. 32 allows consideration of supplementary means of interpretation in general, only the “preparatory work of the treaty and the circumstances of its conclusion” are expressly mentioned as legitimate points of reference. Vienna Convention, at Art. 32. Ibid. at Art. 32(a). For example, the House of Lords looked to the drafting history of Art. 33 of the Refugee Convention, noting that the travaux are “a legitimate guide to interpretation if the effect of a provision is in doubt and the travaux préparatoires yield a clear and authoritative answer”: R v. Immigration Officer at Prague Airport et al., ex parte European Roma Rights Centre et al., [2004] UKHL 55 (UK HL, Dec. 9, 2004), at [17]. Northern Cameroons Case, [1963] ICJ Rep 15, at 88 (Separate Opinion of Judge Spender). Mortenson, “Travaux of Travaux,” at 786. Sinclair suggested that “[o]ne can, almost by definition, assume that a dispute about the interpretation of a treaty provision which reaches the stage of international adjudication will have arisen because the text is ambiguous or obscure”: Sinclair, Vienna Convention, at 142.

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which recourse to the preparatory work and circumstances of the Treaty’s conclusion was eminently in order.112

In line with these views, the contemporary practice of the International Court of Justice shows relatively routine reliance on the travaux,113 invoking them not only to confirm the meaning of text,114 but also to fill textual voids115 and to answer interpretive issues of first impression.116 Even where there has 112

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Elettronica Sicula (USA v. Italy), [1989] ICJ Rep 15, at 97 (Dissenting Opinion of Judge Schwebel). See also Judgment No. 273 of the UN Administrative Tribunal, [1982] ICJ Rep 325, at 463 (Dissenting Opinion of Judge Schwebel): “The Court should do exactly as it has done in prior cases in which the meaning of a treaty or legislative text has been at issue: examine the preparatory work which gave rise to it. If it is objected that resort to this supplementary means of interpretation is justified only where the text is not clear, it is submitted that the text’s lack of clarity is sufficiently shown by the differences about its interpretation which are demonstrated as between the Court’s opinion and dissenting opinions in this case.” Judge Schwebel developed this position in his scholarship, observing that “the terms of a treaty which come before the Court for interpretation, if not usually obscure, are often ‘ambiguous.’ If this were not so, that is, if they did not lend themselves to argument attaching different meaning to their terms, they would not likely be legally contested at all. Moreover, it is not infrequent that the ‘ordinary meaning’ of the terms of a treaty, even if found unambiguously such, leads to a result which, if not ‘manifestly absurd’ is ‘unreasonable’ – at any rate, in the view of one of the parties to the dispute”: Schwebel, “Preparatory Work,” at 543. To similar effect, the European Court of Human Rights determined in James v. United Kingdom, (1986) 8 EHRR 123 (ECtHR, Feb. 21, 1986), at [64], that “confronted with a text whose interpretation has given rise to such disagreement, the court considers it proper to have recourse to the travaux préparatoires as a supplementary means of interpretation.” A broad range of travaux has been consulted by the International Court of Justice, including “negotiation records, minutes of commission proceedings, committee debates preceding the adoption of a convention, preliminary drafts of provisions, diplomatic exchanges, and government memoranda”: M. Ris, “Treaty Interpretation and ICJ Recourse to Travaux Préparatoires: Towards a Proposed Amendment of Articles 31 and 32 of the Vienna Convention on the Law of Treaties,” (1991) 14(1) Boston College International and Comparative Law Review 111, at 133. See e.g. Aegean Sea Continental Shelf Case (Greece v. Turkey), [1978] ICJ Rep 3, at 13–14; Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility, [1988] ICJ Rep 69, at 90; Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary Objection, [2011] ICJ Rep 70, at [142]; Maritime Dispute (Peru v. Chile), [2014] ICJ Rep 3, at [65]–[66]; Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia), [2016] ICJ Rep 3, at [47]. See e.g. Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, [1951] ICJ Rep 15 (interpreting the Genocide Convention to determine the permissibility of reservations); Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicaragua), [2009] ICJ Rep 213. See e.g. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Jurisdiction, [1984] ICJ Rep 392, at 406 (interpreting the Statute of the International Court of Justice to determine the validity of a declaration of jurisdiction by the Permanent Court of International Justice).

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been an effort to characterize reliance on the travaux as purely confirmatory, Rosenne suggests that this may be more a matter of form than of substance: [T]hat case law would be much more convincing if from the outset the court or tribunal had refused to admit consideration of travaux préparatoires until it had first been established whether or not the text was clear, but in fact . . . on all these occasions the travaux préparatoires had been fully and extensively placed before the court or the arbitral tribunal by one or other of the parties, if not by both. In the circumstances, to state that the travaux préparatoires had been used only to confirm an opinion already arrived at on the basis of the text of the treaty was coming close to a legal fiction.117

Most leading regional118 and national119 courts have similarly understood the unique value of the travaux, often drawing on drafting records to assist 117

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S. Rosenne, [1964] 1 Yearbook of the International Law Commission, at 292, [17]. Waldock has similarly opined that “the reference to confirmation and, a fortiori, verification tended to undermine the text of a treaty in the sense that there was an express authorisation to interpret it in the light of something else; nevertheless, that was what happened in practice”: [1964] 1 Yearbook of the International Law Commission, at 283, [65]. Indeed, it has even been suggested that the duty of good faith interpretation may at times require departure from an ordinary meaning thought to be “clear” in order to do justice to the drafters’ intentions as disclosed by reference to the travaux. “If, as Article 31 itself prescribes, a treaty is to be interpreted ‘in good faith,’ surely the provision of Article 32 regarding recourse to preparatory work must be understood to be meaningful rather than meaningless. If preparatory work may be invoked only when it confirms the ordinary meaning otherwise deduced, the provision for its application in Article 32 approaches the meaningless. But if preparatory work may be invoked to correct the ordinary meaning otherwise deduced (if not to inform and influence the interpretation of the treaty from the outset), it and the provisions of Article 32 are accorded a meaningful place”: Schwebel, “Preparatory Work,” at 546. Aust observes in this regard that “[t]his is no doubt how things work in practice; for example, the parties to a dispute will always refer the tribunal to the travaux, and the tribunal will inevitably consider them along with all the other material put before it. [Judge Schwebel’s] suggestion is therefore a useful addition to the endless debate on the principles of interpretation”: Aust, Modern Treaty Law, at 218. “The European Court of Human Rights and the European Court of Justice have made use of travaux préparatoires for a variety of purposes and, on the evidence considered so far, it might be thought that they should be regarded as a major component in the courts’ decisions”: J. Merrills, The Development of International Law by the European Court of Human Rights (1993) (Merrills, European Court), at 92. See e.g. Fothergill v. Monarch Airlines, [1981] AC 251 (UK HL, July 10, 1980), per Diplock L.J. at 283, in which the view is expressed that “an English court might well be under a constitutional obligation” to consider the travaux of a treaty where the text is ambiguous or obscure. American courts also make extensive use of the travaux in the construction of treaties: see e.g. Volkswagenwerk Aktiengesellschaft v. Schlunk, (1988) 486 US 694 (US SC, June 15, 1988); Eastern Airlines v. Floyd, (1991) 499 US 530 (US SC, Apr. 17, 1991); and, in the context of refugee law, Sale, Acting Commissioner, Immigration and Naturalization Service, et al., Petitioners v. Haitian Centers Council, Inc., et al., 509 US 155 (US SC, Jan. 12, 1993). A more recent powerful dissenting opinion in the Supreme Court of Canada

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them in the process of treaty interpretation. Indeed, the House of Lords made clear that a focus on words alone – without a serious effort to come to grips with the historical goals understood to underpin the Refugee Convention – is unlikely to yield a sound understanding of the treaty’s language: Inevitably the final text will have been the product of a long period of negotiation and compromise . . . It follows that one is more likely to arrive at the true construction of Article 1(A)(2) by seeking a meaning which makes sense in the light of the Convention as a whole, and the purposes which the framers of the Convention were seeking to achieve, rather than by concentrating exclusively on the language. A broad approach is what is needed, rather than a narrow linguistic approach.120

This observation neatly brings analysis of the role of a treaty’s preparatory work full circle. Because the goal of interpretation is to discern the “true construction” of a treaty, the text agreed is clearly the starting point for analysis. But a true construction will only be possible when account is taken not only of words, but also of the treaty’s object and purpose. A critical part of that interactive interpretive process – one which makes it “more likely” that a treaty will be accurately construed – is the careful consideration of the deliberations of the convention’s drafters, which affords the interpreter vital evidence of the true meaning of a treaty’s text construed purposively and in context.121

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regarding exclusion from refugee status similarly determined that “the wildly divergent interpretations of Article 1(F)(b) adopted by courts in other jurisdictions and the uncertainty created by the territorial limits mandate recourse to the interpretive assistance of the preparatory work”: Luis Alberto Hernandez Febles v. Canada, [2014] SCC 68 (Can. SC, Oct. 30, 2014), at [107]. As Sinclair concludes, “there is now a growing tendency, even in the municipal courts of States which do not permit recourse to travaux préparatoires in construing statutes or other domestic legislative instruments, to apply this supplementary means of interpretation in determining the meaning of those statutes which give the force of domestic law to the provisions of international treaties”: Sinclair, Vienna Convention, at 144. R v. Secretary of State for the Home Department, ex parte Adan, [1999] 1 AC 293 (UK HL, Apr. 2, 1998). See also INS v. Cardoza Fonseca, (1987) 480 US 421 (US SC, Mar. 9, 1987), at 437–438, in which the United States Supreme Court took account of the travaux préparatoires in its analysis of the meaning of “well-founded fear” in the Convention refugee definition. This understanding appears to be in line with the approach of the International Court of Justice in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, [2004] ICJ Rep 136, decided July 9, 2004. Immediately after referring to the duty to interpret a treaty in good faith and in accordance with the ordinary meaning to be given to its terms in their context and in the light of its object and purpose, the Court cited the full text of Art. 32 of the Vienna Convention: ibid. at [94]. It then relied extensively on the travaux to determine that Art. 2 of the Fourth Geneva Convention is applicable even during an occupation not involving armed conflict on the grounds that “[t]his interpretation reflects the intention of the drafters of the Fourth Geneva Convention to protect

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Yet not even the most careful review of a treaty’s travaux can in and of itself accurately identify its “object and purpose.” Despite the real deference owed to evidence of the objectives being pursued by the representatives of governments that drafted, negotiated, and bound themselves to the treaty, a treaty’s object and purpose cannot reasonably be forever locked in time.122 To the contrary, because treaties are living instruments, evidence of historical intent should be balanced against more contemporary evidence of the social and legal context within which original intentions are now to be implemented.123 To quote Judge Lauterpacht, “the true intentions of the parties may on occasion be frustrated if exclusive importance is attached to the meaning of words divorced from the social and legal changes which have intervened in the long period following upon conclusion of those treaties.”124 The International Court of Justice has made much the same point: It is true that the terms used in a treaty must be interpreted in light of what is determined to have been the parties’ common intention, which is, by definition, contemporaneous with the treaty’s conclusion. That may lead a court seised of a dispute, or the parties themselves, when they seek to determine the meaning of a treaty for purposes of good-faith compliance with it, to ascertain the meaning a term had when the treaty was drafted, since doing so can shed light on the parties’ common intention . . . On the other hand, there are situations in which the parties’ intent upon conclusion of the treaty was, or may be presumed to have been, to give the terms used – or some of them – a meaning or content capable of evolving, not one fixed once and for all, so as to make allowance for, among other things, developments in international law. In such instances it is indeed in order to respect the parties’ common intention at the time the treaty was concluded, not to depart from it, that account should be taken of the

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civilians who find themselves, in whatever way, in the hands of the occupying Power . . . That interpretation is confirmed by the Convention’s travaux préparatoires”: ibid. at [95]. “As important treaties reach a certain age, in particular law-making treaties of the post1945 era, the context in which they operate becomes different from the one in which they were conceived . . . As their context evolves, treaties face the danger of either being ‘frozen’ into a state in which they are less capable of fulfilling their object and purpose, or of losing their foundation in the agreement of the parties. The parties to a treaty normally wish to preserve their agreement, albeit in a manner which conforms to present-day exigencies”: International Law Commission, “First report on subsequent agreements and subsequent practice in relation to treaty interpretation,” UN Doc. A/CN.4/660 (Mar. 19, 2013), at [4]. “[I]nternational treaties and conventions are a product of their time; yet, they have an aptitude to face changing conditions, and their interpretation and application in times bears witness that they are living instruments. They evolve with time, otherwise they would fall into desuetude”: Whaling in the Antarctic (Australia v. Japan, New Zealand intervening), [2014] ICJ Rep 226, Separate Opinion of Judge Cançado Trindade, at [88]. E. Lauterpacht ed., International Law: The Collected Papers of Hersch Lauterpacht (1970) (Lauterpacht, Collected Papers), at 133.

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meaning acquired by the terms in question upon each occasion on which the treaty is to be applied.125

The Refugee Convention is clearly a treaty intended to have an evolving content. Not only was the elaboration and adoption of the Protocol in 1967 intended precisely to ensure a contemporary and geopolitically inclusive standard,126 but that goal has also been unambiguously affirmed by the state parties meeting on the fiftieth and sixtieth anniversaries of the Refugee Convention.127 The importance of interpreting the Refugee Convention in the light of its contemporary object and purpose follows also from the overarching duty to construe a treaty in a way that ensures its present-day effectiveness,128 this being a core component of the duty of good faith treaty interpretation.129 As framed by the International Law Commission, “[w]hen a treaty is open to two interpretations, one of which does and the other does not enable the treaty to have appropriate effects, good faith and the objects and purposes of the treaty demand that the former interpretation should be adopted [emphasis added].”130 An inquiry designed to ensure the “appropriate effects” of the Refugee Convention in its modern context should focus on two concerns.

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Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicaragua), [2009] ICJ Rep 213, at [63]–[64]. See Chapter 1.5.1. 127 See text at notes 75–79. See Bos, “Theory and Practice,” at 150: “In the International Law Commission’s view, the ‘object and purpose’ phrase in Article 31, paragraph 1, is the consecration of the maxim ut magis valeat quam pereat.” The principle of effectiveness has been relied upon, for example, in Corfu Channel Case (United Kingdom v. Albania), Merits, [1949] ICJ Rep 4, at 24–26; and Free Zones of Upper Savoy and the District of Gex, [1929] PCIJ Rep, Series A, No. 22, at 13. More recently, the World Trade Organization Appellate Body invoked the duty to interpret treaties so as to advance their effectiveness in Canada – Term of Patent Protection, Dec. No. WT/DS170/R (WTO AB, Oct. 2000), at [6.49]. The United States Supreme Court has recognized the effectiveness principle in e.g. Bacardi Corp. of America v. Domenech, (1940) 311 US 150 (US SC, Dec. 9, 1940), at 163; and Jordan v. Tashiro, (1928) 278 US 123 (US SC, Nov. 19, 1928), at 127. According to the International Law Commission, good faith implies the requirement to remain faithful to the intentions of the parties, refraining from defeating them by a literal interpretation: [1966] 2 Yearbook of the International Law Commission 211. The pacta sunt servanda principle is codified in the Vienna Convention, at Art. 26: “Every treaty in force is binding upon the parties to it and must be performed by them in good faith.” As Aust observes, “[i]nterpretation is part of the performance of the treaty and, therefore, the process of examining the relevant materials and assessing them must be done in good faith”: Aust, Modern Treaty Law, at 208. The obligation to construe treaties in good faith does not, however, amount to an independent source of substantive obligation: R v. Immigration Officer at Prague Airport et al., ex parte European Roma Rights Centre et al., [2004] UKHL 55 (UK HL, Dec. 9, 2004), at [19] (per Lord Bingham) and [57]– [62] (per Lord Hope). [1966] 2 Yearbook of the International Law Commission 219.

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First, there will sometimes be important factual shifts in the social reality within which a treaty must function. In the context of refugee protection, for example, the current array of non-entrée policies,131 designed to prevent refugees from accessing the territory of many states, simply did not exist when the Refugee Convention was concluded in 1951. Yet since the duty of non-refoulement prohibits the turning back of refugees “in any manner whatsoever,”132 are such deterrent measures prohibited? Similarly, while the Refugee Convention grants refugees access to such rights as public relief, housing, and social security,133 the modern social welfare state did not exist in 1951. How then should these socioeconomic entitlements be mapped onto the architecture of modern social support? If the commitment of states to the regulation of modern refugee flows within the framework of the Refugee Convention is to be honored,134 it follows that an effort must be made to understand the ways in which Convention duties are to be applied within host societies as presently constructed.135 The interpretive challenge – and duty – is to translate historical understanding of refugee rights in a way that positions states to meet the protection challenges presented by altered social and political circumstances.136 131

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See generally J. Hathaway, “The Emerging Politics of Non-entrée,” (1992) 91 Refugees 40; also published as “L’émergence d’une politique de non-entrée,” in F. Julien-Laferrière ed., Frontières du droit, Frontières des droits 65 (1993); and T. Gammeltoft-Hansen and J. Hathaway, “Non-refoulement in a World of Cooperative Deterrence,” (2015) 53(2) Columbia Journal of Transnational Law 235. The duty of non-refoulement is analyzed in Chapter 4.1. These rights are analyzed at Chapters 4.4, 6.1.3, 6.3, and 6.4. See Chapter 2.2 at note 75. See A. North and N. Bhuta, “The Future of Protection – The Role of the Judge,” (2001) 15(3) Georgetown Immigration Law Journal 479, at 484, in which the authors affirm the critical importance of refugee law judges being “pragmatic and responsive to new realities.” Indeed, as noted above, state parties to the Refugee Convention and Protocol have formally insisted upon precisely this understanding by recognizing “the continuing relevance and resilience of [the Convention’s] regime of rights and principles, including at its core the principle of non-refoulement”, even as they took note of the “complex features of the evolving environment in which refugee protection has to be provided, including . . . mixed population flows, [and] the high costs of hosting large numbers of refugees and asylum-seekers”: “Declaration of States Parties to the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees,” UN Doc. HCR/MMSP/2001/09, Dec. 13, 2001, incorporated in Executive Committee of the High Commissioner’s Program, “Agenda for Protection,” UN Doc. EC/ 52/SC/CRP.9/Rev.1, June 26, 2002. The Declaration was welcomed by the UN General Assembly in Res. A/RES/57/187, Dec. 18, 2001, at [4]. This Declaration is to be taken into account as context relevant to interpretation of the Refugee Convention: see Chapter 2.2 at note 73. The unambiguous text of a treaty nonetheless sets a limit to the range of possible interpretations of a treaty so as to meet contemporary challenges. For example, the fact that refugee rights are limited to persons who are outside their own country was sensibly determined by the House of Lords to foreclose the possibility of granting Art. 33 rights to persons still within their own state. “[T]here is no want of good faith if a state interprets

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Second and more specifically, it is important that the Refugee Convention be interpreted in a way that reconciles the treaty to its contemporary international legal context.137 Perhaps most obviously, the Refugee Convention was only the second binding human rights treaty promulgated by the United Nations, having come into force more than two decades before the Human Rights Covenants.138 Yet because refugees are normally entitled to claim the benefit of general human rights treaties,139 and specifically because the subject matter of the Covenants overlaps frequently with that of the Refugee Convention, it is important that some coherence be given to cognate concepts under these treaties. The Supreme Court of Canada has made this point clearly: [T]he Refugee Convention itself expresses a “profound concern for refugees,” and its principal purpose is to “assure refugees the widest possible exercise of . . . fundamental rights and freedoms.” This negates the suggestion that the provisions of the Refugee Convention should be used to deny rights that other legal instruments make universally available to everyone.140

The fact that the Covenants are regularly interpreted at the international level by a legally authoritative process which requires engagement with real cases involving real people141 gives additional impetus to the logic of ensuring a harmonious construction of rights and duties.142

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a treaty as meaning what it says and declines to do anything significantly greater than or different from what it agreed to do. The principle . . . pacta sunt servanda cannot require departure from what has been agreed. This is more obviously true where a state or states very deliberately decided what they were and were not willing to undertake to do”: R v. Immigration Officer at Prague Airport et al., ex parte European Roma Rights Centre et al., [2004] UKHL 55 (UK HL, Dec 9, 2004), at [19]. This understanding is analogous to the view that “it is a rule of interpretation that a text emanating from a Government must, in principle, be interpreted as producing and as intended to produce effects in accord with existing law and not in violation of it”: Rights of Passage over Indian Territory (Portugal v. India), Preliminary Objections, [1957] ICJ Rep 125, at 142. See Chapters 1.4 and 1.5. 139 See Chapter 1.5.4. Suresh v. Canada, [2002] 1 SCR 3 (Can. SC, Jan. 11, 2002). See Chapter 2.4 at note 183 ff. In a decision challenging the detention of a non-removable failed asylum-seeker, the Full Federal Court of Australia not only drew heavily on the Civil and Political Covenant, but expressly addressed the relevance of the views of the Human Rights Committee adopted under its authority to receive complaints of breach of that treaty. “Although the views of the Committee lack precedential authority in an Australian court, it is legitimate to have regard to them as the opinions of an expert body established by the treaty to further its objectives by performing functions that include reporting, receiving reports, [and] conciliating and considering claims that a state party is not fulfilling its obligations”: Minister for Immigration and Multicultural and Indigenous Affairs v. Al Masri, (2003) 197 ALR 241 (Aus. FFC, Apr. 15, 2003). A commitment to taking real account of the work of UN human rights supervisory bodies was expressed by Justice Kirby of the High Court of Australia, who noted that “[i]n ascertaining the meaning of the [International Covenant on Civil and Political Rights] . . . it is permissible, and appropriate, to pay regard to the views of the [UN

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The duty to interpret treaties as living instruments able to function as part of a complex and evolving legal environment is now widely accepted. While its origins are in European human rights law,143 the evolutionary principle has been embraced more broadly in, for example, both European economic law144 and international trade law.145 In the latter context, appellate jurisprudence has affirmed that “[i]nterpretation cannot remain unaffected by the subsequent development of law . . . Moreover, an international instrument has to be interpreted and applied within the entire legal system prevailing at the time of interpretation.”146 Members of the International Court of Justice have similarly pointed out the importance of seeking conceptual concordance among closely connected treaties. In the North Sea Continental Shelf Cases, for example, Judge Ammoun insisted that it was “imperative in the present case to interpret [the treaty] in the light of the formula adopted in the other three [related] conventions, in accordance with the method of integrating the four conventions by co-ordination.”147 Judge Mosler opined that “[t]he method of interpreting a treaty by reference to another treaty, although it is sometimes contested, has rightly been admitted in the decisions of the

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Human Rights Committee] . . . Such views do not constitute legally binding rulings for the purposes of international law. However, they are available to municipal courts, such as this, as the opinions of independent experts in international law, to assist in the understanding of the requirements of that law for whatever weight the municipal legal system accords to it. In Australia, that is the weight of persuasive influence. No more; but no less”: Minister for Immigration and Multicultural and Indigenous Affairs v. B and B, [2004] HCA 20 (Aus. HC, Apr. 29, 2004), per Kirby J., at [148]. Tyrer v. United Kingdom, (1978) 2 EHRR 1 (ECtHR, Apr. 25, 1978), at [31]; Öcalan v. Turkey, App. No. 46221/99 (ECtHR, May 12, 2005), at [163]; Al-Saadoon and Mufdhi v. United Kingdom, App. No. 61498/08 (ECtHR, Mar. 2, 2010), at [119]. Merrills observes that “[t]he principle that the Convention must be interpreted as a ‘living instrument’ is now generally accepted”: Merrills, European Court, at 79. The evolutionary approach is described as “particularly appropriate in Community law where . . . the treaties provide mainly a broad programme or design rather than a detailed blueprint”: L. Brown and T. Kennedy eds., Brown and Jacobs: The Court of Justice in the European Communities (2000), at 339. “The Appellate Body has accepted in its treaty interpretations that it may be evident from a treaty that a term has an evolutionary meaning, with some built-in ‘elasticity’ to accommodate new shades of meaning as they develop, while respecting the bargain that has been struck”: Lennard, “Navigating by the Stars,” at 75. As a general matter, “[t]he WTO Panels and the Appellate Body rely on the treaty interpretation rules expressed in the Vienna Convention . . . as the basic rules for interpreting WTO instruments. This is because those rules are generally regarded as codification of the public international law rules of treaty interpretation”: ibid. at 17. US – Import Prohibition of Certain Shrimp and Shrimp Products, WTO Dec. No. WT/ DS58/AB/R (WTO AB, Oct. 12, 1998), at [130]. North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), [1969] ICJ Rep 3, at 125 (Separate Opinion of Judge Ammoun).

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Court.”148 And more generally, the Court has determined that “an international instrument has to be interpreted and applied within the framework of the entire legal system prevailing at the time of the interpretation [emphasis added]”149 – a principle expressly affirmed in the context of international human rights law.150 It moreover aligns with the duty to interpret a treaty in its international legal context, as previously described.151 The evolutionary principle was applied by the House of Lords to refugee law in a way that blends it seamlessly with the duty to respect historical intentions: It is . . . plain that the Convention must be seen as a living instrument in the sense that while its meaning does not change over time, its application will. I would agree with the observation [that] . . . “[u]nless it is seen as a living thing, adopted by civilized countries for a humanitarian end which is constant in motive but mutable in form, the Convention will eventually become an anachronism” [emphasis added].152

In line with this formulation, an interpretive approach that synthesizes foundational insights from analysis of the historical intentions of a treaty’s drafters 148

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Constitution of the Maritime Safety Committee of the Intergovernmental Maritime Consultative Organization (IMCO), [1960] ICJ Rep 73, at 126 (Separate Opinion of Judge Mosler). Legal Consequences for States of the Continued Presence of South Africa in Namibia, [1971] ICJ Rep 6. See also Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), [2009] ICJ Rep 213, at [9] (Judge ad hoc Guillaume). “Treaties that affect human rights cannot be applied in such a manner as to constitute a denial of human rights as understood at the time of their application”: Gabčíkovo– Nagymaros Project (Hungary/Slovakia), [1997] ICJ Rep 7, at 114–115 (Judge Weeramantry). Vienna Convention, at Art. 31(1). See Chapter 2.2 at note 88. Sepet and Bulbul v. Secretary of State for the Home Department, [2003] UKHL 15 (UK HL, Mar. 20, 2003), per Lord Bingham. In reaching this conclusion, Lord Bingham adopted the reasoning of Sedley J. in R v. Immigration Appeal Tribunal, ex parte Shah, [1997] Imm AR 145 (Eng. QBD, Nov. 11, 1996), at 152. He further approved of the observation of Laws L. J. in R v. Secretary of State for the Home Department, ex parte Adan and Aitseguer, [1999] 3 WLR 1274 (UK CA, July 23, 1999), that “[i]t is clear that the signatory states intended that the Convention should afford continuing protection for refugees in the changing circumstances of the present and future world. In our view the Convention has to be regarded as a living instrument: just as, by the Strasbourg jurisprudence, the European Convention on Human Rights is so regarded.” More specifically, Lord Bingham observed that “the reach of an international human rights convention is not forever determined by the intentions of those who originally framed it. Thus . . . the House was appropriately asked to consider a mass of material illustrating the movement of international opinion among those concerned with human rights and refugees in the period, now a very significant period, since the major relevant conventions were adopted”: [2003] UKHL 15, at [11]. After consideration of the English authorities, the New Zealand tribunal concluded that “a dynamic and purposive approach to the interpretation of the Refugee Convention . . . ensures that the protection afforded by the Act can be adapted as required to meet evolving and changing protection needs over time”: AC (Syria), Dec. No. 800035 (NZ IPT, May 27, 2011), at [66].

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with understandings derived from the normative legal context and practical landscape within which treaty duties are now to be implemented is the most objective and legally credible means of identifying how best to make the treaty effective. It is an approach fully in line with the basic obligation of pacta sunt servanda, since it honors the original goals that prompted elaboration of the treaty even as it refuses to allow those commitments to atrophy through passage of time. It is moreover an approach to treaty interpretation that results in the marriage of the duty to advance a treaty’s effectiveness with the more basic obligation to interpret text purposively, and in context.

2.4 But What About State Practice? Art. 31(3)(b) of the Vienna Convention provides that treaties are to be interpreted in the light of “any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation.”153 As previously discussed,154 this part of the general rule of interpretation validates reliance on, for example, the conclusions of meetings of state parties and the protection conclusions adopted by the state members of the UNHCR’s Executive Committee. But since “practice” might be quite broadly understood,155 what is the interpretive relevance of state conduct that seems to undercut or diminish rights? Could such conduct be invoked to effectively “interpret away” a codified refugee right? If a particular form of rightsavoidance were to become endemic such that a clear concordance of practice were demonstrable, could Art. 31 be said to allow reliance on such consistent state practice to avoid an interpretation grounded in an understanding of text construed purposively, in context, and with a view to ensuring the Refugee Convention’s effectiveness?156 The concern arises because Art. 31(3)(b)’s validation of state practice reflects the traditional international law scenario in which a treaty is essentially a contract between and for the benefit of particular states. In that context, it is easy to see the relevance of state practice as, in effect, a medium for the continual adjustment and modification of treaty-based understandings. The 153 155

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Vienna Convention, at Art. 31(3)(b). 154 See Chapter 2.2 at note 67 ff. “Subsequent practice under article 31, paragraph 3(b), may consist of any ‘conduct.’ The word ‘conduct’ . . . include[s] not only acts, but also omissions, including relevant silence, which contribute to establishing agreement”: International Law Commission, “Draft conclusions on subsequent agreements and subsequent practice in relation to the interpretation of treaties, with commentaries,” UN Doc. A/73/10 (Aug. 8, 2018), at Conclusion 4, Commentary [17]. The litmus test for relevant state practice has been carefully defined by the WTO Appellate Body as a “concordant, common and consistent sequence of acts or pronouncements which is sufficient to establish a discernible pattern implying the agreement of the parties regarding its interpretation”: Japan – Alcoholic Beverages II, Report of the Appellate Body, WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R (Oct. 4, 1996), at E. Practice may also be relevant under Art. 32: see text at note 175.

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Iran–US Claims Tribunal, for example, sensibly considered the practice of the state parties to decide whether there was an implied duty of compensation in the event of a failure to return property under the treaty.157 Put simply, insofar as interpretive reliance on the practice of relevant states affects only the entitlements of those same states, the logic of allowing the interpreter to resolve ambiguity based on the understandings implicit in the way that the parties conduct themselves seems sound. But refugee and other human rights treaties are quite differently conceived. In contrast to classic treaties, human rights treaties are mainly intended to define or constrain the scope of permissible state autonomy in order to advance a good that is understood to transcend purely national interests, namely the protection of actual human beings. This purpose could be fundamentally frustrated if the duties assumed by states could be interpreted by reference to the very state practices sought to be constrained.158 Indeed, if refugee and other human rights treaties are interpreted in ways that defer to state practice broadly defined, there is a very real risk that state auto-determination of the scope of obligations will trump the existence of obligations at all. Yet as the American representative to the Ad Hoc Committee that drafted the Refugee Convention observed, “the mere fact that the provisions of a convention required a change in the existing laws of any country was not a valid argument against them. If all national laws were to remain unchanged, why should there be a convention?”159 The specificity of human rights treaties has led the Inter-American Court of Human Rights to downplay the interpretive value of state practice as such in favor of reference to broader international developments,160 while the European Court of Human Rights has mainly relied on state practice to counter arguments that rights should be interpreted narrowly.161 This cautious 157

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Iran–United States Claims Tribunal, The Islamic Republic of Iran and the United States of America, Award No. 382-B1-FT (Aug. 1988). As the International Law Commission has observed, “[h]uman rights courts and treaty bodies have followed a somewhat different approach with regard to subsequent agreements and subsequent practice than adjudicative bodies under international economic treaty regimes. Thus, human rights courts and treaty bodies do not seem to have considered subsequent agreements by the parties in their interpretation of substantive human rights provisions”: International Law Commission, “First report on subsequent agreements and subsequent practice in relation to treaty interpretation,” UN Doc. A/CN.4/660 (Mar. 19, 2013), at [36]. Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.37, Aug. 16, 1950, at 15. See also Statement of Mr. Weis of the IRO, ibid. at 16. Velásquez-Rodríguez v. Honduras (Merits, Judgment), Ser. C No. 4 (IACtHR, July 29, 1988), at [151]; The Right to Information on Consular Assistance in the Framework of the Guarantees of Due Process of Law (Advisory Opinion OC-16/99), Ser. A No. 16 (IACtHR, Oct. 1, 1999), at [130]–[133] and [137]. See e.g. Loizidou v. Turkey (Preliminary Objections), ECHR Series A, No. 310 (ECtHR, Feb. 23, 1995), at [73]; Demir and Baykara v. Turkey, App. No. 34503/97 (ECtHR, Nov. 12, 2008), at [65].

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view of the relevance of state practice in interpreting refugee and other human rights treaties is very much in line with the classic approach taken to the construction of “lawmaking treaties,” that is, treaties under which the Contracting States do not have any interests of their own; they merely have, one and all, a common interest, namely, the accomplishment of those high purposes which are the raison d’être of the convention. Consequently, in a convention of this type, one cannot speak of individual advantages to States, or of the maintenance of a perfect balance between rights and duties.162

In the case of lawmaking treaties – of which refugee and other human rights accords are surely a paradigmatic example – it is recognized that “the character of the treaty may affect the question whether the application of a particular [interpretive] principle, maxim or method is suitable in a particular case”:163 It has long been recognized that human rights treaties have a special character. This distinguishes them from multilateral treaties that are designed to set up reciprocal arrangements between states. Humanitarian agreements of the kind to which the [Refugee] Convention belongs are entered into for a different purpose. Their object is to protect the rights and freedoms of individual human beings.164

Specifically, where a treaty is “less a manifestation of free will than a calling to mind of principle obligatory for every civilized State, less a contract than universally valid regulation of objective law . . . in the matter of interpretation, validity of the convention is placed outside the sphere of the will of the Contracting Parties.”165 In the words of the European Court of Human 162

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Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, [1951] ICJ Rep 15, at 26. Judge de Visscher defined lawmaking treaties as treaties the object of which is the laying down of common rules of conduct (normes de conduite communes): C. de Visscher, Problèmes d’interpretation judiciaire en droit international public (1963) (de Visscher, Problèmes d’interpretation), at 128. Remarks of Sir Humphrey Waldock, Chief Rapporteur of the International Law Commission for the Draft Articles on the Law of Treaties, [1964] 2 Yearbook of the International Law Commission 55. The recent work of the International Law Commission only briefly addresses this general question of the sui generis nature of human rights and other lawmaking treaties, with its analysis focused on the more narrow question of the interpretive weight of the views of human rights treaty supervisory bodies (discussed at note 183 ff). It noted, however, that “[t]he Commission itself, when considering draft conclusion 1 of the present project, left the question open as to whether it should refer to the ‘nature’ of a treaty as a relevant consideration for its interpretation, but agreed that all questions of treaty interpretation can be resolved within the framework of articles 31 and 32 of the Vienna Convention”: International Law Commission, “Fourth report on subsequent agreements and subsequent practice in relation to treaty interpretation,” UN Doc. A/CN.4/694 (Mar. 7, 2016), at [41] ff. R v. Asfaw, [2008] UKHL 31 (UK HL, May 21, 2008), at [54], per Lord Hope. De Visscher, Problèmes d’interpretation, at 38 (unofficial translation).

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Rights, it is necessary in such cases “to seek the interpretation that is most appropriate in order to realise the aim and achieve the objective of the treaty, not that which would restrict to the greatest possible degree the obligations undertaken by the parties.”166 Under this understanding, state practice that contradicts a refugee or other lawmaking treaty should normally be treated as a breach of an obligation, not as an interpretation of it. Even those who would not agree that refugee and other lawmaking treaties are sui generis167 would in practical terms arrive at much the same result. This is because Art. 31(3)(b) gives less weight to state practice as an interpretive tool than is commonly assumed. The provision does not validate all state practice as part of the general rule of interpretation; rather, it expressly sanctions reliance only on a subset of state practice, namely “subsequent practice in the application of the treaty, which establishes the agreement of the parties regarding its interpretation [emphasis added].”168 As classically understood, the only legally relevant practice is that motivated by a sense of legal obligation (opinio juris),169 specifically that “it is possible and reasonable to infer from the 166

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Wemhoff v. Germany, (1968) 1 EHRR 55 (ECtHR, June 27, 1968), at [23]. See also Klass v. Germany, (1979) 2 EHRR 214 (ECtHR, Sept. 6, 1978), at [42], where the Court determined that restrictions on human rights are to be narrowly construed in light of the fundamental human rights objectives of the European Convention on Human Rights. “There is . . . no reason why articles 31 and 32 would be insufficient to deal with particular aspects of human rights treaties. The provisions, and the Vienna Convention generally, are not only suitable for a limited ‘ideal type’ of multilateral treaty, but they were even elaborated when the existence of expert bodies within the emerging human rights regime was already well known”: International Law Commission, “Fourth report on subsequent agreements and subsequent practice in relation to treaty interpretation,” UN Doc. A/ CN.4/694 (Mar. 7, 2016), at [41]. Vienna Convention, at Art. 31(3)(b). Importantly, however, “[t]he term ‘agreement’ in the Vienna Convention . . . does not imply a particular degree of formality . . . [A]ny identifiable agreement of the parties is sufficient. There is no requirement that such an agreement be published or registered . . . only the awareness of the position of the other parties regarding the interpretation of a treaty justifies the characterization of an agreement under article 31(3) as an ‘authentic’ means of interpretation. It is, however, possible that the awareness of the position of the other party or parties is constructive, particularly in the case of treaties which are implemented at the national level without a common supervisory mechanism”: International Law Commission, “Second report on subsequent agreements and subsequent practice in relation to treaty interpretation,” UN Doc. A/CN.4/671 (Mar. 26, 2014), at [54]–[55]. “[I]nterpretive conduct must have been motivated by a sense of legal obligation. For example, in the Asylum Case, the [International Court of Justice] thought that the granting of asylum in the cases referred to it may have been the product of political expediency rather than an indication of the existence of a legal obligation. This requirement is the same as that found for the development of a customary norm through the practice of states . . . [T]he strength of evidence of practice will often lie in its inadvertent nature: the agent acts on a non-politically motivated interpretation of the provision in question, rather than consciously attempting to establish a practice”: G. McGinley, “Practice as a Guide to Treaty Interpretation,” [Winter 1985] Fletcher Forum 211 (McGinley, “Practice

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behavior of the parties that they have regarded the interpretation they have given the instrument in question as the legally correct one, and have tacitly recognized that, in consequence, certain behavior was legally incumbent upon them.”170 Thus, in Judge Winiarski’s view, “[i]t is sometimes difficult to attribute any precise legal significance to the conduct of the contracting parties, because it is not always possible to know with certainty whether they have acted in a certain manner because they consider that the law so requires or allows, or for reasons of expediency.”171 Official conduct motivated by selfinterest or even rights-evasion – distressingly common in the refugee and human rights fields172 – is thus clearly outside even a broad reading173 of Art. 31’s general rule of interpretation.174

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as a Guide”), at 218. See e.g. the approach of the European Court of Human Rights, which has taken the view that state practice is not within the bounds of Art. 31(3)(b) unless motivated by opinio juris: Cruz Varas v. Sweden, (1991) 14 EHRR 1 (ECtHR, Mar. 20, 1991), at [100]; Soering v. United Kingdom, (1989) 11 EHRR 439 (ECtHR, July 7, 1989), at [103]. Certain Expenses of the United Nations, [1962] ICJ Rep 151, at 201 (Separate Opinion of Judge Fitzmaurice). Ibid. at 232 (Dissenting Opinion – on another proposition – of Judge Winiarski). See the detailed empirical analysis of failures to respect refugee rights in Chapters 4–7. The International Law Commission took the view in an early draft that “every application of a treaty presupposes its interpretation.” This allowed conduct not meeting the strictures of Art. 31(3)(b) nonetheless to be shoe-horned into Art. 31(3)(a), enabling a much broader range of conduct to be deemed presumptively relevant to interpretation (“Whereas in the case of a ‘subsequent agreement between the parties regarding the interpretation of the treaty’ under article 31(3)(a) (first alternative), the position regarding the interpretation of a treaty is specifically and purposefully assumed, this may be less clearly identifiable in the case of a ‘subsequent agreement . . . regarding . . . the application of its provisions’ under article 31(3)(a) (second alternative). Such an assumption of a position regarding interpretation ‘by application’ is implied in simple acts of application of the treaty, that is, in ‘every measure taken on the basis of the interpreted treaty,’ under articles 31(3)(b) and 32(1)”: International Law Commission, “Second report on subsequent agreements and subsequent practice in relation to treaty interpretation,” UN Doc. A/CN.4/671 (Mar. 26, 2014), at [4]). While plausible as a literal construction of Art. 31(3)(a), this seems an unprincipled effort to give heightened interpretive weight to conduct that would normally have been thought relevant only under Art. 32: see International Law Commission, “Second report on subsequent agreements and subsequent practice in relation to treaty interpretation,” UN Doc. A/CN.4/671 (Mar. 26, 2014), at [10]. Indeed, the context of Art. 31(3)(a) – in particular the existence of Art. 31(3)(b) specifically addressed to practice – surely argues against this literalist understanding. The Commission’s final report on this topic does not make the same claim: International Law Commission, “Draft conclusions on subsequent agreements and subsequent practice in relation to the interpretation of treaties, with commentaries,” UN Doc. A/73/10 (Aug. 8, 2018). Because “[s]ubsequent practice as an authentic means of interpretation under article 31, paragraph 3(b), consists of conduct in the application of the treaty, after its conclusion, which establishes the agreement of the parties regarding the interpretation of the treaty [emphasis added]” (International Law Commission, “Draft conclusions on subsequent agreements and subsequent practice in relation to the interpretation of treaties, with

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In line with this analysis, the proper basis upon which to take account of a more fluid range of “state practice” is as a (non-enumerated) supplementary means of interpretation under Art. 32 of the Vienna Convention. The only explicitly recognized supplementary means of interpretation are the travaux,175 though the traditional understanding of Art. 32 was that it also encompassed a limited number of core interpretive maxims – a contrario, ejusdem generis, lex specialis, and such.176 The International Law Commission has, however, embraced a broader reading of Art. 32 under which practice that does not meet the requirements of Art. 31 – in particular because it does not bespeak an interpretive consensus of state parties177 – may nonetheless be treated as relevant under Art. 32.178 Yet not even this broad reading of Art. 32 can be relied on to interpret a treaty by reference to any and all state practice since the only practice that is relevant is “conduct by one or more parties in the application of the

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commentaries,” UN Doc. A/73/10 (Aug. 8, 2018), at Conclusion 4(2)), it does not include state practice that seeks to avoid rather than to apply the treaty. As noted above, the fact that a treaty’s preparatory work and the circumstances of its conclusion are the only listed supplementary means of interpretation may suggest that they are worthy of special consideration in the interpretive process: see Chapter 2.3 at note 101 ff. See e.g. Aust, Modern Treaty Law, at 220–221. “The element which distinguishes subsequent agreements and subsequent practice as authentic means of interpretation under article 31(3)(a) and (b), and other subsequent practice as a supplementary means of interpretation under article 32, is the ‘agreement’ of the parties regarding the interpretation of the treaty concerned. It is the agreement of the parties which gives the means of interpretation under article 31(3) their specific function and value for the interactive process of interpretation under the general rule of interpretation of article 31”: International Law Commission, “Second report on subsequent agreements and subsequent practice in relation to treaty interpretation,” UN Doc. A/ CN.4/671 (Mar. 26, 2014), at [49]. See International Law Commission, “Draft conclusions on subsequent agreements and subsequent practice in relation to the interpretation of treaties, with commentaries,” UN Doc. A/73/10 (Aug. 8, 2018), at Conclusion 4(1)–(2), referencing the focus on “agreement between the parties.” “Subsequent practice by one or more parties to a treaty may also be a means of interpretation under article 32 of the Vienna Convention even if not all conditions of article 31(3)(b) are fulfilled”: International Law Commission, “First report on subsequent agreements and subsequent practice in relation to treaty interpretation,” UN Doc. A/CN.4/660 (Mar. 19, 2013), at [65]. But critically, “[i]n using subsequent practice by one or more, but not all, parties to a treaty as a supplementary means of interpretation under article 32 one must . . . always remain conscious of the fact that ‘the view of one State does not make international law.’ In any case, the distinction between agreed subsequent practice under article 31, paragraph 3(b), as an authentic means of interpretation, and other subsequent practice (in a broad sense) under article 32, implies that a greater interpretative value should be attributed to the former”: International Law Commission, “Draft conclusions on subsequent agreements and subsequent practice in relation to the interpretation of treaties, with commentaries,” UN Doc. A/73/10 (Aug. 8, 2018), at Conclusion 4, Commentary [33]. See also Sinclair, Vienna Convention, at 138; McGinley, “Practice as a Guide,” at 221.

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treaty.”179 Most critically, rights-evasive practice is not relevant since “[i]t is presumed that the parties to a treaty, by an agreement or a practice in the application of the treaty, intend to interpret the treaty, not to amend or to modify it. The possibility of amending or modifying a treaty by subsequent practice of the parties has not been generally recognized.”180 Indeed, this broader – if still sensibly focused – reading of Art. 32 actually has real value for the advancement of refugee and related human rights. Most obviously, the validation of state practice beyond that which meets the Art. 31 standard enables account to be taken of national jurisprudence and policy guidance, at least where these forms of practice do not simply assert a preferred view, but actually engage the treaty and justify their interpretive position.181 As the analysis in much of this book makes clear, the transnational judicial conversation182 among national judges interpreting the Refugee Convention has been critical to the advancement of refugee rights. Given the absence of a top international court for refugee law that would make it feasible for refugee jurisprudence to achieve the “agreement” required to be assimilated to context under Art. 31, the ability to rely on cogent analysis of international refugee law in national jurisprudence by virtue of Art. 32 is a development of extraordinary value. A specific critical consequence of the validation of a broader range of state practice under Art. 32 is the ability to take account of the often quite detailed guidance on the scope of the Covenants on Human Rights and other treaties provided by the bodies established to oversee the accords – comprised not of governmental representatives, but rather of independent experts appointed by states. Correctly finding that such pronouncements are not per se evidence of state practice,183 the International Law Commission’s extensive review 179

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International Law Commission, “Draft conclusions on subsequent agreements and subsequent practice in relation to the interpretation of treaties, with commentaries,” UN Doc. A/73/10 (Aug. 8, 2018), at Conclusion 4(3). International Law Commission, “Draft conclusions on subsequent agreements and subsequent practice in relation to the interpretation of treaties, with commentaries,” UN Doc. A/73/10 (Aug. 8, 2018), at Conclusion 7(3). The probative value of state practice beyond the bounds of Art. 31’s strictures should be cautiously assessed. As McGinley notes, “The practice may be so vast as to make it virtually unavailable to the court or the parties. Or, much may be unrecorded or otherwise unavailable. It may be generated at will by the parties and be highly self-serving. Moreover, because practice is amenable to subjective interpretation, it may be readily bent to particular points of view. Finally, judicial selectivity is often a problem: acts ignored by one judge may be given special significance by another”: McGinley, “Practice as a Guide,” at 219. L. Helfer and A.-M. Slaughter, “Toward a Theory of Effective Supranational Adjudication,” (1997) 107 Yale Law Journal 273, at 371–372. “A pronouncement of an expert treaty body cannot as such constitute a subsequent agreement or subsequent practice under article 31, paragraph 3(a) or (b), since this provision requires an agreement of the parties or subsequent practice of the parties that

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nonetheless concluded that such authoritative opinions cannot be ignored in the interpretive process.184 The International Law Commission took its cue from the preparedness of the International Court of Justice to give interpretive weight to the positions of the human rights treaty bodies.185 For example, in a critical case involving the lawfulness of expulsion, the Court opted to pay substantial deference to the interpretation of the Civil and Political Covenant rendered by that treaty’s expert body, the Human Rights Committee: Since it was created, the Human Rights Committee has built up a considerable body of interpretative case law, in particular through its findings in response to the individual communications which may be submitted to it in respect of States parties to the first Optional Protocol, and in the form of “General Comments.” Although the Court is in no way obliged, in the exercise of its judicial functions, to model its own interpretation of the Covenant on that of the Committee, it believes that it should ascribe great weight to the interpretation adopted by this independent body that was established specifically to supervise the application of that treaty.186

Much the same position has been taken by both regional human rights courts187 and senior national courts:188

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establishes their agreement regarding the interpretation of the treaty”: International Law Commission, “Draft conclusions on subsequent agreements and subsequent practice in relation to the interpretation of treaties, with commentaries,” UN Doc. A/73/10 (Aug. 8, 2018), at Conclusion 13, Commentary [9]. “A pronouncement of an expert treaty body may give rise to, or refer to, a subsequent agreement or subsequent practice by parties under article 31, paragraph 3, or other subsequent practice under article 32”: ibid. at Conclusion 13(3). Ibid. at Conclusion 13, Commentary [21]. Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Judgment, [2010] ICJ Rep 639 (Nov. 30, 2010), at [66]. The Court also referred to the positions of both the Human Rights Committee and the Committee on Economic, Social and Cultural Rights in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, [2004] ICJ Rep 136, at [109]–[112]. International Law Commission, “Fourth report on subsequent agreements and subsequent practice in relation to treaty interpretation,” UN Doc. A/CN.4/694 (Mar. 7, 2016), at [29]–[30]. “The practice of international and domestic courts suggests that pronouncements of human rights expert bodies, in the vast majority of cases, are mostly not taken into account by those courts as a matter of obligation but rather in a supplementary fashion . . . That does not exclude the idea that such pronouncements should nevertheless be taken very seriously”: International Law Commission, “Fourth report on subsequent agreements and subsequent practice in relation to treaty interpretation,” UN Doc. A/ CN.4/694 (Mar. 7, 2016), at [53], [55]. See also International Law Commission, “Draft conclusions on subsequent agreements and subsequent practice in relation to the interpretation of treaties, with commentaries,” UN Doc. A/73/10 (Aug. 8, 2018), at Conclusion 13, Commentary [22].

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While national courts have generally not been prepared to accept that they are formally bound by committee interpretations of treaty provisions, most courts have recognized that, as expert bodies entrusted by the States parties with functions under the treaty, the treaty bodies’ interpretations deserve to be given considerable weight in determining the meaning of a relevant right and the existence of a violation.189

Intriguingly, these top courts generally avoid formally justifying their validation of treaty body decisions in the interpretive process. In seeking to make conceptual sense of this pattern of consistent but legally unmoored reliance on treaty body views and similar pronouncements, the International Law Commission firmly rejected the view that all state parties to a given human rights treaty should be treated as having acquiesced in every decision of that treaty’s supervisory body, however framed and to whomever addressed, such as would bring those decisions within the scope of Art. 31.190 While recognizing that the pronouncements of expert treaty bodies can in principle191 either reflect or serve as a catalyst to state practice with significant interpretive weight under Art. 31(3)(a)–(b),192 it found 189

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International Law Association, “Final Report on the Impact of Findings of the United Nations Human Rights Treaty Bodies: Report of the Seventy-first Conference of the International Law Association, Berlin” (2004), at [175]. While acknowledging that “[s]ilence on the part of one or more parties can constitute acceptance of the subsequent practice when the circumstances call for some reaction” (International Law Commission, “Draft conclusions on subsequent agreements and subsequent practice in relation to the interpretation of treaties, with commentaries,” UN Doc. A/73/10 (Aug. 8, 2018), at Conclusion 10(2)), the International Law Commission has nonetheless determined “that it cannot usually be expected that States parties take a position with respect to every pronouncement by an expert treaty body, be it addressed to another State or to all States generally. On the other hand, State parties may have an obligation, under a duty to cooperate under certain treaties, to take into account and to react to a pronouncement of an expert treaty body that is specifically addressed to them, or to individual communications regarding their own conduct”: ibid., at Conclusion 13, Commentary [19]. “Whereas a pronouncement of an expert treaty body can, in principle, give rise to a subsequent agreement or a subsequent practice by the parties themselves under article 31, paragraph 3(a) and (b), this result is not easily achieved in practice. Most treaties that establish expert treaty bodies at the universal level have many parties. It will often be difficult to establish that all parties have accepted, explicitly or implicitly, that a particular pronouncement of an expert treaty body expresses a particular interpretation of the treaty”: ibid. at Conclusion 13, Commentary [12]. “A pronouncement of an expert treaty body may give rise to, or refer to, a subsequent agreement or subsequent practice by parties under article 31, paragraph 3”: ibid. at Conclusion 13(3). “The expression ‘may give rise to’ addresses situations in which a pronouncement comes first and the practice and the possible agreement of the parties occur thereafter. In this situation, the pronouncement may serve as a catalyst for the subsequent practice of States parties. The term ‘refer to,’ on the other hand, covers situations in which the subsequent practice and a possible agreement of the parties have developed before the pronouncement, and where the pronouncement is only an indication of such an agreement or practice”: ibid., at Conclusion 13, Commentary [17].

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that they will more commonly be a supplementary means of interpretation under Art. 32,193 that is in the discretionary way in which article 32 describes supplementary means of interpretation . . . [Expert pronouncements] “contribute to the determination of the ordinary meaning of the terms in their context and in light of the object and purpose of the treaty.” Whereas pronouncements of expert treaty bodies are not practice of a party to the treaty, they are nevertheless conduct mandated by the treaty the purpose of which is to contribute to the treaty’s proper application.194

In sum, state practice will normally be relevant to the interpretation of refugee rights not by virtue of Art. 31, but instead in consequence of Art. 32.195 The forms of state practice most likely to meet Vienna Convention requirements are carefully reasoned national jurisprudence and the settled interpretive positions of expert treaty bodies. It is important, of course, to remember that Art. 32 – in contrast to Art. 31 – does not describe interpretive sources, but only permissible means of engaging the interpretive process.196 As such, just as in the case of the travaux,197 state practice comprised of national jurisprudence or the settled interpretive positions of expert treaty bodies may be taken into account only to the extent that they afford evidence relevant to the analysis of text, context, object and purpose. Understood in this way, state practice is not a threat to the duty to interpret refugee and other human rights treaties on the basis of an approach committed to an interactive interpretation of text in context, purposively, and with a view to ensuring the treaty’s effectiveness. The interpretive approach adopted here can thus briefly be summarized. Because there is no hierarchy among interpretive sources, the text of a treaty – while clearly the practical point of departure for analysis – is in no sense a privileged reference point. The Vienna Convention requires a treaty provision to be interpreted through an interactive process in which text is read 193 194

195 197

Ibid. at Conclusion 13, Commentary [16]. Ibid. at Conclusion 13, Commentary [24]. In reaching this general conclusion, the Commission retreated from an earlier, quite detailed approach that advocated what is in essence a sliding scale of interpretive salience for treaty body determinations. “[T]he weight that should be given to such pronouncements in each case depends on specific considerations which include the cogency of their reasoning, the character of the treaty and of the treaty provisions in question, the professional composition of the responsible body, the procedure by which a pronouncement has been arrived at and possibly other factors. That means, in particular, that an individual pronouncement normally carries less weight than a series of pronouncements or a general comment reflecting a settled position on a question of interpretation (a ‘jurisprudence’ or ‘case law’)”: International Law Commission, “Fourth report on subsequent agreements and subsequent practice in relation to treaty interpretation,” UN Doc. A/CN.4/694 (Mar. 7, 2016), at [56]. See text at notes 168–175. 196 See Chapter 2.3 at note 105. See Chapter 2.3 at note 107.

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in a way that advances the treaty’s object and purpose, and which ensures that it is effective in its context.198 Whatever the arguments for a primary focus on text in a purely domestic context, these must yield to the imperative of ensuring that treaties – nearly always issued in more than one authentic linguistic version – are capable of producing a coherent, transnational result. The context of the Refugee Convention includes a number of formal elements – most notably, the Final Act of the conference that adopted the Convention, as well as the Preambles to the Convention and its Protocol. In addition, consideration of context requires that attention be paid to subsequent interpretive agreements and practice among the parties, in particular the relevant Conclusions issued by the state members of UNHCR’s Executive Committee. Perhaps most importantly, because virtually all of the state parties to the Refugee Convention or Protocol are also parties to the two UN Covenants on Human Rights, and because there is such frequent substantive overlap among the rights set by these accords, an appreciation of these cognate rights at international law is also now an essential aspect of the consideration of context. Beyond text and context, an interpreter must give real weight to object and purpose. The first step in understanding object and purpose is the careful consideration of the drafters’ deliberations: an understanding of the intentions of the states that prepared a treaty affords the interpreter vital evidence of the true meaning of the treaty’s text construed purposively and in context. But despite the real deference owed to evidence of the objectives being pursued by the representatives of governments that negotiated and bound themselves to the treaty, a treaty’s object and purpose cannot reasonably be forever locked in time. To the contrary, because treaties are living instruments, evidence of historical intent must be balanced against more contemporary evidence of the social and legal landscape within which original intentions are now to be implemented, thereby ensuring the treaty’s present-day effectiveness. This two-step approach to object and purpose honors the original goals that prompted elaboration of the treaty even as it refuses to allow those commitments to atrophy through passage of time. In pursuing each aspect of the interactive interpretive inquiry, critical evidence may be gleaned not only from the historical record of the treaty’s drafting in particular as captured by the travaux préparatoires, but also from such state practice as evinces the interpretive agreement of the parties to the treaty. More generally, a broader range of state practice – in particular, national jurisprudence and the views of expert treaty supervisory bodies – may, so long as it is the product of serious engagement with the treaty, be relied upon as 198

“[O]nly a broad approach to the text, and to the legal rights which the Convention affords, will fulfill its objectives”: Chen Shi Hai v. Minister for Immigration and Multicultural Affairs, (2000) 170 ALR 553 (Aus. HC, Apr. 13, 2000), per Kirby J.

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evidence of the meaning of text conceived in context, purposively, and with a view to ensuring the treaty’s effectiveness. The analysis in the pages that follow draws upon this interactive approach to interpretation of the Refugee Convention and its companion human rights instruments in order to offer a genuinely comprehensive understanding of the rights of refugees as they stand at present under international law.

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3 The Structure of Entitlement under the Refugee Convention

The universal rights of refugees are today derived from two primary sources – general standards of international human rights law,1 and the Refugee Convention itself.2 As the analysis in Chapter 1 makes clear, the obligations derived from the Refugee Convention remain highly relevant, despite the development since 1951 of a broad-ranging system of international human rights law. In particular, general human rights norms do not address many refugee-specific concerns; general economic rights are defined as duties of progressive implementation and may legitimately be denied to non-citizens by less developed countries; not all civil rights are guaranteed to non-citizens, and most of those which do apply to them can be withheld on grounds of their lack of nationality during national emergencies; and the duty of non-discrimination under international law has not always been interpreted in a way that guarantees refugees the substantive benefit of relevant protections.3 On the other hand, general human rights law adds a significant number of rights to the list codified in the Refugee Convention, and is regularly interpreted and applied by supervisory bodies able to refine the application of standards to respond to contemporary realities.4 Because both refugee law and general human rights law are therefore of real value, the analysis in Chapters 4–7 synthesizes these sources of law to define a unified standard of treatment owed to refugees. 1 2

3 4

See generally Chapter 1.5.4. “[O]nce they achieve refugee status, not merely are they safeguarded from return home but they secure all of the other manifold benefits provided for under the Convention relating to the Status of Refugees”: Secretary of State for the Home Department v. AH (Sudan), [2007] UKHL 49 (UK HL, Nov. 14, 2007), at [32], per Lord Brown; “What is clear is that signatories to the Refugee Convention are bound to accord to those who have been determined to be refugees the rights that are specified in those [international] instruments”: Plaintiff M70/ 2011 v. Minister for Immigration and Citizenship, (2011) 244 CLR 144 (Aus. HC, Aug. 31, 2011), at [117], per Kiefel J. But see Negusie v. Attorney General, 555 US 511 (US SC, Mar. 3, 2009), at 3, in which Scalia J. (concurring) advocated the (internationally erroneous) view that “[a]sylum is a benefit accorded by grace, not by entitlement.” These concerns are developed in detail in Chapters 1.5.4 and 1.5.5. See Chapter 2.3 at note 141.

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This chapter examines the fairly intricate way in which rights are attributed and defined under the Refugee Convention. Most fundamentally, the refugee rights regime is not simply a list of duties owed by state parties equally to all refugees.5 An attempt is instead made to grant enhanced rights as the bond strengthens between a particular refugee and the state party in which he or she is present. While all refugees benefit from a number of core rights, additional entitlements accrue as a function of the nature and duration of the attachment to the asylum state. The most basic set of rights inheres as soon as a refugee comes under a state’s de jure or de facto jurisdiction; a second set applies when he or she enters a state party’s territory; other rights inhere only when the refugee is lawfully or habitually within the state’s territory; some when the refugee is lawfully staying there; and a few rights accrue only upon satisfaction of a durable residency requirement.6 Before any given right can be claimed by a particular refugee, the nature of his or her attachment to the host state must therefore be defined. The structure of the attachment system is incremental: because the levels build on one another (a refugee in a state’s territory is also under its jurisdiction; a refugee lawfully or habitually present is also present; a refugee lawfully residing is also lawfully present; and a refugee durably 5

6

Australian courts have favored the formal view that rights are owed only to other contracting states, not to refugees themselves: NAGV and NAGW of 2002 v. Minister for Immigration and Multicultural and Indigenous Affairs, [2005] HCA 6 (Aus. HC, Mar. 2, 2005), at [27]; MZQAP v. Minister for Immigration and Multicultural and Indigenous Affairs, [2005] FCAFC 35 (Aus. FFC, Mar. 15, 2005), at [3]. Because the Refugee Convention is an international treaty, it is of course technically true that individuals are not themselves parties. But the same is true for all international human rights treaties, which has not impeded general consensus that in pith and substance it is human beings who are the true rights holders under such accords, despite being reliant on states individually and collectively to enforce those treaty-based rights. As the InterAmerican Court of Human Rights observed, human rights treaties “are not multilateral treaties of the traditional type concluded to accomplish the reciprocal exchange of rights for the mutual benefit of the contracting states”; rather, “their object and purpose is the protection of the basic rights of individual human beings, irrespective of their nationality, both against the state of their nationality and all other contracting states”: Restrictions to the Death Penalty (Arts. 4(2) and 4(4) American Convention on Human Rights) (Advisory Opinion OC-3/83) (IACtHR, Sept. 8, 1983), at [50], quoting The Effect of Reservations on the Entry Into Force of the American Convention on Human Rights (Arts. 74 and 75) (Advisory Opinion OC-2/82) (IACtHR, Sept. 24, 1982), at [29]. The European Court of Human Rights has similarly noted that “the purpose of the High Contracting Parties in concluding the [European Convention on Human Rights] was not to concede to each other reciprocal rights and obligations in pursuance of their individual national interests but to realise the aims and ideals of the Council of Europe, as expressed in its Statute, and to establish a common public order . . . [I]t follows that the obligations undertaken by the High Contracting Parties in the Convention are essentially of an objective character, being designed rather to protect the fundamental rights of individual human beings from infringement by any of the High Contracting Parties than to create subjective and reciprocal rights for the High Contracting Parties themselves”: Austria v. Italy, App. No. 788/60, 4 Eur. YB HR 116 (ECtHR, Jan. 11, 1961), at 140. See Chapter 3.1.

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residing is also lawfully residing), rights once acquired are retained for the duration of refugee status.7 Second, as under the 1933 Convention8 and the predecessor regime of aliens law,9 the standard of treatment owed to refugees is defined through a combination of absolute and contingent criteria. A few rights are guaranteed absolutely to refugees, and must be respected even if the host government does not extend these rights to anyone else, including its own citizens.10 More commonly, the standard for compliance varies as a function of the relevant treatment afforded another group under the laws and practices of the receiving country. Under these contingent rights standards, refugees are entitled to be assimilated either to nationals of a most-favored state, or to citizens of the asylum state itself.11 If no absolute or contingent standard is specified for a given right, refugees benefit from the usual standard of treatment applied to non-citizens present in the asylum state.12 In applying this general residual standard, however, refugees must be exempted from any criteria which a refugee is inherently unable to fulfill,13 and may not be subjected to any exceptional measures applied against the citizens of their state of origin.14 Third, an asylum state may not grant preferred treatment to any subset of the refugee population. The interaction of the Refugee Convention’s endogenous rule of non-discrimination and the general duty of non-discrimination requires that all refugees benefit from equal access to rights in the host country.15 Fourth and finally, states enjoy a limited discretion to withhold some rights from particular refugees on the grounds of national security.16 In contrast to treaties such as the Civil and Political Covenant,17 however, the Refugee 7

8 9

10 11

12 15

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“The structure of the 1951 Convention reflects [a] ‘layering’ of rights”: “Letter from R. Andrew Painter, UNHCR Senior Protection Officer, to Robert Pauw,” (2003) 80 Interpreter Releases 423, at 427. See Chapter 1.3 at notes 34–35. See Chapter 1.1 at note 8. Refugee rights have “been forged on the basis of the legal categories inherited from the law of aliens which were refined and adapted to the specific situation of refugees”: V. Chetail, International Migration Law (2019) (Chetail, International Migration Law), at 183. See Chapter 3.3.3. See Chapters 3.3.1 and 3.3.2. It will be recalled that this approach establishes a built-in equalization and adjustment mechanism, since contingent rights vary as a function of the relevant treatment afforded another group under the laws and practice of the state party. See Chapter 1.1 at note 9. See Chapter 3.2. 13 See Chapter 3.2.3. 14 See Chapter 3.5.2. “A successful claimant will, of course, be entitled to all the benefits that are set out in Articles 2–34 of the Convention without discrimination as to race, religion or country of origin”: Januzi and Hamid v. Secretary of State for the Home Department, [2006] UKHL 5 (UK HL, Feb. 15, 2006), at [46]. See also Chapter 1.5.5. See Chapter 3.5.1. “In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required

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Convention does not allow states to derogate from their obligations on a generalized basis, even in time of war or other serious national emergency. The enforcement of these rights is to be accomplished by the attribution to UNHCR of a surrogate protector role comparable to that played by the various High Commissioners during the League of Nations era,18 supplemented by the non-derogable agreement of state parties to submit any dispute regarding interpretation or application of the Refugee Convention to the International Court of Justice.19 There is moreover potential for the national courts and tribunals of many state parties to enforce refugee rights directly, and for United Nations and other human rights bodies to take account of refugee-specific obligations in the interpretation of generally applicable human rights obligations.

3.1 Attachment to the Asylum State Refugees are entitled to an expanding array of rights as their relationship with the asylum state deepens.20 At the lowest level of attachment, some refugees are simply subject to a state’s jurisdiction, in the sense of being under its control or

18 19

20

by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, color, sex, language, religion or social origin. No derogation from articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18 may be made under this provision [emphasis added]”: International Covenant on Civil and Political Rights, 999 UNTS 172 (UNTS 14668), adopted Dec. 16, 1966, entered into force Mar. 23, 1976 (“Civil and Political Covenant”), at Art. 4(1)–(2). The provision requiring continuing respect for “other obligations under international law” clearly imports the duty of state parties to the Refugee Convention to implement their duties under that treaty even when derogation from Covenant rights is allowed. With regard to the right of derogation under the Civil and Political Covenant, see UN Human Rights Committee, “General Comment No. 29: Derogations during a State of Emergency” (2001), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at 184. See Chapter 1.3. Convention relating to the Status of Refugees, 189 UNTS 2545 (UNTS 2545), done July 28, 1951, entered into force Apr. 22, 1954 (“Refugee Convention”), at Art. 38. State parties to the Protocol relating to the Status of Refugees, 606 UNTS 8791 (UNTS 8791), done Jan. 31, 1967, entered into force Oct. 4, 1967 (“Refugee Protocol”) may, however, enter a reservation to International Court of Justice jurisdiction with respect to matters arising under the Protocol. Angola, Botswana, Congo, El Salvador, Ghana, Jamaica, Malawi, Rwanda, St. Vincent and the Grenadines, Tanzania, and Venezuela have chosen to exercise this option: https://treaties.un .org/pages/ShowMTDSGDetails.aspx?src=UNTSONLINE&tabid=2&mtdsg_no= V-5&chapter=5&lang=en, accessed Feb. 1, 2020. But see Chapter 1.5.1 at note 185. As observed by the Supreme Court of the United Kingdom, “[t]he rights that attach to the status of refugee under the Convention depend in each case on the possession of some degree of attachment to the contracting State in which asylum is sought . . . An examination of the Convention shows that it contemplates five levels of attachment to the contracting states”: R (ST, Eritrea) v. Secretary of State for the Home Department, [2012] UKSC 12 (UK SC, Mar. 21, 2012), at [21].

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authority. A greater attachment is manifest when the refugee is physically present within a state’s territory. A still more significant attachment is inherent when the refugee is deemed to be lawfully or habitually present within the state. The attachment is greater still when the refugee is lawfully staying in the country. Finally, a small number of rights are reserved for refugees who can demonstrate durable residence in the asylum state. As the refugee’s relationship to the asylum state is solidified over the course of this five-part assimilative path,21 the Convention requires that a more inclusive range of needs and aspirations be met. The drafters’ decision to grant refugee rights on an incremental basis reflected the experience of states confronted with the unplanned arrival of refugees at their frontiers. While asylum states outside Europe continued mainly to receive refugees preselected for resettlement,22 several European countries were already faced with what has today become the dominant pattern of refugee flows, namely the unplanned and unauthorized arrival of refugees at a state’s borders. The drafters of the Convention explicitly considered how best to align the refugee rights regime with this transition from an essentially managed system of refugee migration, to a mixed system in which at least some refugees would move independently: [T]he initial reception countries were obliged to give shelter to refugees who had not, in fact, been properly admitted but who had, so to speak, imposed themselves upon the hospitality of those countries. As the definition of refugee made no distinction between those who had been properly admitted and the others, however, the question arose whether the initial reception countries would be required under the convention to grant the same protection to refugees who had entered the country legally and those who had done so without prior authorization.23

The compromise reached was that any unauthorized refugee, whether already inside or seeking entry into a state party’s territory, would benefit from the 21

22

23

But see Chetail, International Migration Law, at 181 (“Albeit attractive, this conceptualization of the refugee status as an assimilative process remains an a posteriori and essentially doctrinal reconstruction”). Chetail’s general concern that the increasingly demanding requirements following from levels of attachment are not always matched by equally demanding standards of treatment (ibid. at 182; see Chapters 3.2 and 3.3) is of course true – no doubt reflecting the fact that the assimilationist goal was not pursued in an absolutist way but was rather attenuated by considerations of practical and political viability. It remains, however, that the five levels of attachment plainly reference a gradual deepening of the connection between the refugee and asylum state. “The Chairman, speaking as the representative of Canada, observed that the question raised by the initial reception countries did not apply to his country, which was separated by an ocean from the refugee zones. Thanks to that situation, all refugees immigrating to Canada were ipso facto legally admitted and enjoyed the recognized rights granted to foreigners admitted for residence”: Statement of Mr. Chance of Canada, UN Doc. E/AC/32/SR.7, Jan. 23, 1950, at 12. Statement of Mr. Cuvelier of Belgium, ibid.

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protections of the Refugee Convention.24 Such refugees would not, however, immediately acquire all the rights of “regularly admitted” refugees, that is, those pre-authorized to enter and to reside in an asylum state.25 Instead, as under then-prevailing French law, basic rights would be granted to all refugees, with additional rights following as the legal status of the refugee was consolidated.26 The Refugee Convention implements this commitment by defining a continuum of legal attachment to the asylum state. Under this approach, some refugee rights accrue and must be provisionally honored even before the formal assessment of refugee status. While this might at first blush appear counterintuitive27 – after all, refugee rights belong to refugees, not to every person who simply claims to be a refugee – refugee status is not contingent on formal recognition. Rather, [a] person is a refugee within the meaning of the 1951 Convention as soon as he fulfils the criteria contained in the definition. This would necessarily occur prior to the time at which his refugee status is formally determined. Recognition of his refugee status does not therefore make him a refugee but declares him to be one. He does not become a refugee because of recognition, but is recognized because he is a refugee.28

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28

“It did not, however, follow that the convention would not apply to persons fleeing from persecution who asked to enter the territory of the contracting parties . . . [W]hether or not the refugee was in a regular position, he must not be turned back to a country where his life or freedom could be threatened [emphasis added]”: Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.20, Feb. 1, 1950, at 11–12. Refugees affirmatively resettled are, of course, still refugees, requiring governments “to take into account the legal consequences” of a removal decision: Minister for Immigration and Border Protection v. Le, [2016] FCAFC 120 (Aus. FFC, Sept. 9, 2016), at [46]. An earlier decision had sensibly opined that “[i]f the applicant had been assessed by the UNHCR to be a refugee . . . then Australia, having accepted the applicant for resettlement and as a contracting party to the Convention, would have to have given regard to whether Australia’s obligations to the applicant continued under the Convention before it took any step to return the applicant to Vietnam”: Nguyen v. Minister for Immigration and Multicultural and Indigenous Affairs, [2004] FCA 757 (Aus. FC, June 17, 2004), at [60]. “[T]he problem would be seen more clearly if it were divided into three different aspects: the first concerned the treatment of refugees before they had reached an understanding with the authorities of the recipient countries; the second referred to their right to have their situation regularized and the conditions in which that was to be done; the third dealt with their rights after they had been lawfully authorized to reside in the country, which meant, in the case of France, after they were in possession of a residence card and a work card”: Statement of Mr. Rain of France, UN Doc. E/AC/32/SR.15, Jan. 27, 1950, at 15. See e.g. the remarks of Heydon J. in Plaintiff M70/2011 v. Minister for Immigration and Citizenship, (2011) 244 CLR 144 (Aus. HC, Aug. 31, 2011), at [215]–[216]. UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status (1979, reissued 1992 and 2019) (UNHCR, Handbook), at [28].

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As Justice Kirby observed in the High Court of Australia, the Refugee Convention establishes a process by which a person becomes “recognized” as a refugee. In using the language of “recognition,” rather than “rendering,” “becoming,” or “constituting,” the [Convention] connotes a process whereby a person, who already is a refugee, gains “formal recognition” as such within the country of refuge. Recognition does not render a person a “refugee.” It simply recognizes the status as one that preceded the recognition. That is why the process is commonly described as merely “declaratory.”29

This understanding that refugee status recognition is declaratory has been explicitly recognized by the Inter-American Court of Human Rights,30 as well as by several senior national courts.31 It is also codified in the legislation of the European Union32 and in the national laws of a number of countries.33 29

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Minister for Immigration and Multicultural and Indigenous Affairs v. QAAH of 2004, [2006] HCA 53 (Aus. HC, Nov. 15, 2006), at [96], per Kirby J. (dissenting). “Given the declarative nature of the determination of refugee status . . . the States parties to the 1951 Convention . . . must recognize this status, based on the respective fair and competent proceedings”: Pacheco Tineo v. Bolivia, Ser. C No. 272 (IACtHR, Nov. 25, 2013), at [147]. “True it is . . . as para. 28 of the Handbook neatly points out, that someone recognised to be a refugee must by definition have been one before his refugee status has been determined”: R (Hoxha) v. Special Adjudicator, [2005] 1 WLR 1063 (UK HL, Mar. 10, 2005), at [60]; accord R (ST, Eritrea) v. Secretary of State for the Home Department, [2012] UKSC 12 (UK SC, Mar. 21, 2012), at [21]. “Under the Refugee Convention, refugee status depends on the circumstances at the time the inquiry is made; it is not dependent on formal findings”: Németh v. Canada, [2010] 3 SCR 281 (Can. SC, Nov. 25, 2010), at [50]. “[A] person who satisfies the conditions of art. 1(A)(2) is a refugee regardless of whether he or she has been formally recognised as such pursuant to a municipal law process”: YLS v. Refugee and Protection Officer, [2017] NZCA 582 (NZ CA, Dec. 12, 2017), at [53]. “Every refugee is, initially, also an asylum applicant; therefore, to protect refugees, asylum applicants must be treated on the assumption that they may be refugees until their status has been determined. Without such a rule, the principle of non-refoulement would not provide effective protection for refugees, because applicants might be rejected at the frontier or otherwise returned to persecution on the grounds that their claim had not been established”: Kenya National Commission on Human Rights v. Attorney General, Constitutional Petition No. 227 of 2016 (Ken. HC, Feb. 9, 2017), at [17]; and Cishahayo Saidi v. Minister of Home Affairs, Dec. No. CCT 107/17 (SA CC, Apr. 24, 2018), at [34]. “The recognition of refugee status is a declaratory act”: EU Qualification Directive (2011), at Preamble, [21]. Indeed, “[t]he fact that being a ‘refugee’ . . . is not dependent on formal recognition is borne out by the wording of article 21(2) of [the Qualification Directive], which states that a ‘refugee’ may, in accordance with the conditions laid down . . . be refouled ‘whether formally recognised or not’”: M v. Czech Republic, X and X v. Belgium, Dec. Nos. C-391/16, C-77/17, and C-78/17 (CJEU, May 14, 2019), at [90]. Law No. 26.165, Art. 2 (Argentina, 2006); Law No. 9.474, Art. 26 (Brazil, 1997); Decree No. 36831-G, Arts. 14 and 107 (Costa Rica, 2011); Refugee and Complementary Protection Act, Arts. 12, 47 (Mexico, 2011).

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Because persons who are in fact refugees – albeit still awaiting formal status assessment – are rights holders at international law, genuine refugees would be fundamentally disadvantaged if their rights were withheld pending status assessment.34 Put simply, unless status assessment is virtually immediate, a state party withholding refugee rights pending positive status assessment would be unable to implement its Refugee Convention obligations in good faith.35 This dilemma can, however, be easily resolved by granting any person who claims to be a Convention refugee36 the provisional benefit of those rights which are not predicated on regularization of status, in line with the Convention’s own attachment requirements.37 Governments wishing to be 34

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This concern was acknowledged by Kiefel J. in the High Court of Australia: Plaintiff M70/ 2011 v. Minister for Immigration and Citizenship, (2011) 244 CLR 144 (Aus. HC, Aug. 31, 2011), at [216]. The English Court of Appeal earlier opined in Khaboka v. Secretary of State for the Home Department, [1993] Imm AR 484 (Eng. CA, Mar. 25, 1993) “that a refugee is a refugee both before and after his claim for asylum as such may have been considered and accepted . . . It is common sense and a natural reading of article 31(1). The term ‘refugee’ means what it says. It will include someone who is subsequently established as being a refugee”: ibid. at 489; affirmed in R v. Navabi, [2005] EWCA Crim 2865 (Eng. CA, Nov. 11, 2005), at [5]. As observed in Jahangeer, whether a refugee is entitled to particular rights is a function of the level of attachment which governs access to that right. The court in this case was clearly anxious that an interpretation that withheld refugee rights until after status recognition could work a serious injustice, particularly as regards the right in Art. 16(1) of the Refugee Convention to access the courts. “[T]he use of the word ‘refugee’ [in Art. 16(1)] is apt to include the aspirant, for were that not so, if in fact it had to be established that he did fall within the definition of ‘refugee’ in article 1, he might find that he could have no right of audience before the court because the means of establishing his status would not be available to him so that he could not have access to the courts of this country on judicial review”: R v. Secretary of State for the Home Department, ex parte Jahangeer, [1993] Imm AR 564 (Eng. QBD, June 11, 1993), at 566. “The principle of good faith underlies the most fundamental of all norms of treaty law – namely, the rule pacta sunt servanda . . . Where a third party is called upon to interpret the treaty, his obligation is to draw inspiration from the good faith that should animate the parties if they were themselves called upon to seek the meaning of the text which they have drawn up”: I. Sinclair, The Vienna Convention on the Law of Treaties (1984), at 119–120. To the same end, Chetail invokes the notion of effectiveness (effet utile), suggesting that “amongst several possible interpretations the one that best guarantees the practical effect of the relevant provision shall prevail. Any other interpretation that would exclude asylum seekers from non-refoulement would defeat the very object and purpose of the [Refugee] Convention as a whole”: Chetail, International Migration Law, at 188. Indeed, “the wish to apply for asylum does not have to be expressed in any particular form. It may be expressed by means of a formal application, but also by means of any conduct which signals clearly the wish of the person concerned to submit an application for protection”: ND and NT v. Spain, Dec. Nos. 8675/15 and 8697/15 (ECtHR, Feb. 13, 2020), at [180]. These include rights which are subject to no level of attachment, rights which inhere in refugees simply physically present, and – once the requirements for status verification have been met – rights which are afforded to refugees who are lawfully or habitually present: see Chapters 3.1.1, 3.1.2, and 3.1.3. More sophisticated rights (those that require lawful stay, or durable residence: see Chapters 3.1.4 and 3.1.5) need be granted only after affirmative

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relieved of this presumptive (if minimalist) responsibility toward persons claiming protection have the legal authority to take steps to expedite formal determination of refugee status, including by resort to a fairly constructed procedure for “manifestly unfounded claims” if necessary,38 with Convention rights summarily withdrawn from persons found through a fair inquiry not to be Convention refugees. Such an approach enables a state to meet its obligations toward genuine refugees who seek its protection in a manner that is consistent with the duty to ensure that at least certain basic rights accrue even before regularization of status.39

3.1.1 Subject to a State’s Jurisdiction While most rights in the Refugee Convention inhere only once a refugee is either in, lawfully or habitually in, lawfully staying, or durably residing in an asylum country, a small number of core rights are defined to apply with no qualification based upon level of attachment.40

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verification of refugee status. Importantly, all rights provisionally respected can be immediately withdrawn in the event an applicant is found not to be a Convention refugee. Manifestly unfounded claims are “those which are clearly fraudulent or not related to the criteria for the granting of refugee status laid down in the 1951 United Nations Convention relating to the Status of Refugees nor to any other criteria justifying the granting of asylum”: UNHCR Executive Committee Conclusion No. 30, “The Problem of Manifestly Unfounded or Abusive Applications for Refugee Status or Asylum” (1983), at [(d)]. In a decision addressing exclusion from refugee status under Art. 1(F)(b), the High Court of Australia impliedly endorsed the view that refugee status is to be provisionally presumed pending the outcome of a status inquiry. Chief Justice Gleeson in a majority judgment observed that “[w]hatever the operation of the expression ‘admission . . . as a refugee’ in other systems of municipal law, in Australia there would be nothing to which the language could apply. It would be necessary to read the words ‘prior to his admission to that country as a refugee’ as meaning no more than ‘prior to his entry into that country.’ The preferable solution is to read the reference to ‘admission . . . as a refugee’ as a reference to putative admission as a refugee”: Minister for Immigration and Multicultural Affairs v. Singh, (2002) 186 ALR 393 (Aus. HC, Mar. 7, 2002). Justice Callinan, in dissent, similarly observed that “[c]ontrary to a submission made in this court . . . I am of the opinion that the words ‘prior to his admission to that country as a refugee’ should be understood to mean ‘prior to his entry into the country in which he seeks or claims the status of a refugee.’ Otherwise the purpose of the Convention would be subverted in that the nature of the applicant’s prior criminal conduct could only be explored after he had been accorded refugee status”: ibid. See Refugee Convention, at Arts. 3 (“non-discrimination”), 13 (“movable and immovable property”), 16(1) (“access to courts”), 20 (“rationing”), 22 (“education”), 29 (“fiscal charges”), 33 (“prohibition of expulsion or return – ‘refoulement”’), and 34 (“naturalization”). No real significance should be given to the fact that the Convention’s provision on naturalization is not constrained by a level of attachment since, as elaborated below, this provision really is not the basis for any rights at all, but is more in the nature of non-binding advice to states: see Chapter 7.4. Certain contextual rights also apply immediately, including those set by Arts. 5 (“respect for other rights”), 6 (“exemption from insurmountable

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To understand when these rights are owed, the starting point for analysis is the plain language of the Refugee Convention itself, read in context.41 Notably, all but a very small number of core refugee rights are reserved for those who reach a state’s territory, or who meet the requirements of a higher level of attachment. This decision generally to constrain the application of rights on a territorial or other basis creates a contextual presumption that no such limitation was intended to govern the applicability of the rights subject to no such textual limitation. To assert that the few rights which are explicitly subject to no level of territorial attachment should nonetheless be treated as though they were so constrained would run afoul of the basic principle of interpretation that a good faith effort should be made to construe the text of a treaty in the light of its context – which clearly includes the balance of the provisions of the treaty itself.42 This contextually sound understanding of the Convention’s plain language is buttressed by the Convention’s drafting history.43 In some cases, the intention was explicitly to give refugees rights in state parties with which they had no territorial connection. As regards property rights,44 for example, the drafters debated, but ultimately rejected, higher levels of attachment because they wished to ensure that refugees could claim property rights in any state party on the same basis as other nonresident aliens.45 Similarly, the absence of a level of attachment for purposes of the right to tax equity46 was driven by the goal of ensuring that state parties would limit any effort to tax refugees not present on their territory by reference to the rules applied to non-resident citizens.47 The right of access to the courts48 was also broadly framed specifically to ensure that refugees had access to the courts of all state parties, not just those of a country where they might be physically present.49 In each of these cases, the failure to stipulate a level of attachment was designed to grant refugees rights in places where they might never be physically present. In other cases, the absence of a territorial attachment criterion reflects a judgement about the critical nature of the rights concerned. The decision

41 44 45 46 47 48 49

requirements”), 7(1) (“aliens generally” default), 8 (“exemption from exceptional measures”), and 12 (“respect for personal status”). See Chapter 2.2. 42 See Chapter 2.2 at note 57. 43 See Chapter 2.3 at note 94 ff. Refugee Convention, at Art. 13. See generally Chapter 4.5. See Chapter 4.5.1, note 1973. Refugee Convention, at Art. 29. See generally Chapter 4.5.2. See Chapter 4.5.2 at note 2054. Refugee Convention, at Art. 16(1). See generally Chapter 4.10. See Chapter 4.10 at note 2793 ff. Taking account of interaction with relevant provisions of the Civil and Political Covenant, Art. 16(1) of the Refugee Convention may in some circumstances have relevance also to enabling refugees to access courts to enforce refugee rights violated extraterritorially: see Chapter 4.10 at note 2812.

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not to stipulate any level of attachment for purposes of access to elementary education,50 for example, followed from the drafters’ determination to honor the “urgent need” for, and compulsory nature of, access by all to the most basic forms of education in line with the formula of the Universal Declaration of Human Rights – and specifically to ensure that even non-resident refugee children had access to schooling.51 While not explicitly debated, access to whatever rationing systems might exist for the distribution of consumer basics52 could reflect a comparable value judgement that refugees cannot at any time be abandoned with no means to survive. The two other rights subject to no attachment requirement – the duty of non-discrimination (between and among refugees)53 and the obligation not to return refugees, directly or indirectly, to a place where they risk being persecuted for a Convention reason (non-refoulement)54 – represent the minimum requirements for ensuring that any refugee is, by virtue of his or her refugeehood, positioned to engage the protections stipulated by the Convention. As UNHCR has observed, “to protect refugees, asylum-seekers must be treated on the assumption that they may be refugees until their status has been determined. Otherwise, the principle of non-refoulement would not provide effective protection for refugees, because applicants might be rejected at borders or otherwise returned to persecution on the grounds that their claim had not been established.”55 The position that these rights accrue even to refugees outside a state’s territory is not, however, tantamount to suggesting that a refugee anywhere in the world may invoke Convention rights subject to no level of attachment against any state party. As a general matter, states do not assume international legal duties to all persons wherever located, but only to persons under their jurisdiction56 – and “the jurisdictional competence of states is primarily 50 51

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Refugee Convention, at Art. 22. See generally Chapter 4.8. See Chapter 4.8 at note 2506. This approach is not rendered unworkable by virtue of practical concerns, for example the viability of delivering elementary education immediately, or while onboard a ship. Even those rights which inhere immediately clearly do so only on their own terms. As regards public education, for example, refugees need only receive “the same treatment as is accorded to nationals.” Thus, there is no breach of refugee law if refugees are subject only to the same delays or constraints in establishing educational facilities that might apply, for example, to citizens living in a comparably remote area. But such considerations must be addressed with the same promptness and effectiveness that would apply in the case of citizens of the state party. Refugee Convention, at Art. 20. See generally Chapter 4.4.1. Refugee Convention, at Art. 3. See generally Chapter 3.4. Refugee Convention, at Art. 33. See generally Chapter 4.1. UNHCR, “Note on International Protection,” UN Doc. A/AC.96/815 (1993), at [11]. This foundational principle was not recognized in the early jurisprudence of the European Court of Human Rights, which seemed to impose liability wherever a state party to the European Convention on Human Rights had “effective control”: see e.g. Cyprus v. Turkey, (2001) 35 EHRR 30 (ECtHR [GC], May 10, 2001), at [77]–[78]. In Banković et al. v. Belgium et al., 11 BHRC 435 (ECtHR [GC], Dec. 12, 2001), at [59], the European Court of Human

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territorial.”57 But states do not only exercise jurisdiction within their own territory. Rather, as observed by the International Court of Justice (ICJ) in its seminal Israeli Wall decision, states may also “exercise jurisdiction outside their national territory.”58 This understanding aligns with the view of the UN Human Rights Committee59 that “a [state] must respect and ensure . . .

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Rights varied its approach to require evidence of “the same concept of ‘jurisdiction’ which exists in general international law”: M. Milanovic, Extraterritorial Application of Human Rights Treaties: Law, Principles, and Policy (2011), at 21. As Milanovic observes, “[t]here is in principle nothing wrong with the Banković approach to interpreting the notion of state jurisdiction . . . by reference to general international law . . . I am not arguing that the word ‘jurisdiction’ should be given a special meaning autonomous to human rights law. Rather, the word has several different and equally ordinary meanings in general international law itself, and the question is which of those meanings – which of those concepts – the jurisdiction clauses of human rights treaties refer to”: ibid. at 53. Indeed, the core problem with the Banković decision was that it erroneously assumed a presumption against extraterritoriality in public international law’s view of jurisdiction (Banković, at [61]). If, however, “jurisdiction” is properly understood to require simply a meaningful connection to the state, the linkage of the notion of jurisdiction in human rights law to the more general concept in public international law is not only sound, but strategically wise as a means of enabling continued evolution of the concept. Indeed, as Wilde has observed, “the term has been understood in the extraterritorial context as a connection between the state, on the one hand, and either the territory in which the relevant acts took place . . . or the individual affected by them”: R. Wilde, “The Extraterritorial Application of International Human Rights Law on Civil and Political Rights,” in S. Sheeran and Sir N. Rodley eds., Routledge Handbook of International Human Rights Law 635 (2013) (Wilde, “Extraterritorial Application”), at 641. In recent years, the open-ended language about the meaning of jurisdiction adopted in the Banković decision has been refined in a way that brings European regional human rights law to a position on the meaning of jurisdiction that is both more authentically representative of the true meaning in public international law, and substantially in line with that adopted by the UN Human Rights Committee and affirmed by the ICJ: see text at note 62 ff. A less optimistic view of the continuing influence of Banković is, however, taken in E. Roxstrom and M. Gibney, “Human Rights and State Jurisdiction,” (2017) 18(2) Human Rights Review 129. Banković et al. v. Belgium et al., 11 BHRC 435 (ECtHR [GC], Dec. 12, 2001), at [59]. A Grand Chamber of the same court recently affirmed that “the concept of ‘jurisdiction’ for the purposes of Article 1 of the [European] Convention must be considered to reflect the term’s meaning in public international law . . . Under that law, the existence of a fence located some distance from the border does not authorise a State to unilaterally exclude, alter or limit its territorial jurisdiction, which begins at the line forming the border”: ND and NT v. Spain, Dec. Nos. 8675/15 and 8697/15 (ECtHR, Feb. 13, 2020), at [109]. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, [2004] ICJ Rep 136, at [109]; see also Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), [2005] ICJ Rep 168, at [216] (quoting Israeli Wall in finding that international human rights law is “applicable ‘in respect of acts done by a State in the exercise of its jurisdiction outside its own territory’”). For reasons set out in Chapter 2.2 at note 88, it is appropriate to seek guidance in the approach taken by international human rights law – expressly part of the Convention’s context by virtue of its Preamble, and an appropriate touchstone in view of the holdings of leading courts that the object and purpose of refugee law is to provide for the surrogate or substitute protection of human rights.

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rights . . . to anyone within the power or effective control of the [state], even if not situated within the territory of the [state].”60 The ICJ has similarly determined that duties under the Racial Discrimination Convention – which are subject to no territorial limitation (and are thus akin to those Refugee Convention duties which are subject to no level of attachment) – “appear to apply, like other provisions of instruments of that nature, to the actions of a State party when it acts beyond its territory.”61 Recent jurisprudence suggests at least three situations in which refugees outside a state’s territory are under its jurisdiction and hence entitled to claim the benefit of Convention rights subject to no level of attachment.62 First, a refugee is under a state party’s jurisdiction if located in a territory over which that state exercises effective control, most notably by way of military occupation.63 The jurisdictional obligations of the occupying state stem from de facto control alone;64 lawfulness is not 60

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UN Human Rights Committee, “General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant” (2004), UN Doc. HRI/GEN/1/ Rev.7, at [10]. See also UN Committee against Torture, “General Comment No. 2: Implementation of Article 2 by States Parties” (2008), UN Doc. CAT/c/GC/2, at [16]. See generally Wilde, “Extraterritorial Application.” Case Concerning Application of the International Convention on the Elimination of All Forms of Racial Discrimination, Order on the Indication of Provisional Measures (Georgia v. Russian Federation), [2008] ICJ Rep 353, at [109]. The general agreement among international and regional tribunals on this point is described in A. Klug and T. Howe, “The Concept of State Jurisdiction and the Applicability of the Non-refoulement Principle to Extraterritorial Interception Measures,” in B. Ryan and V. Mitsilegas eds., Extraterritorial Immigration Control: Legal Challenges 69 (2010), at 75–91. The analysis that follows is in large measure an updated version of that first presented in T. Gammeltoft-Hansen and J. Hathaway, “Non-refoulement in a World of Cooperative Deterrence,” (2015) 53(2) Columbia Journal of Transnational Law 235, at 257 ff. Banković et al. v. Belgium et al., 11 BHRC 435 (ECtHR [GC], Dec. 12, 2011), at [71]; Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), [2005] ICJ Rep 168, at [179]. For other cases involving effective control over territory, see Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, [2004] ICJ Rep 136, at [102]–[114]; Loizidou v. Turkey, 23 EHRR 513 (ECtHR [GC], Dec. 18, 1996); Coard v. United States, Case 10.951, Report 109/99 (IAComHR, Sept. 29, 1999); Salas et al. v. United States, Case 10.573, Report 31/93 (IAComHR, Oct. 4, 1993). Indeed, the notion of jurisdiction based on “effective control” has been held to encompass situations in which extraterritorial environmental harm is caused by a state failing to take steps to prevent the precipitating actions within its own territory: Advisory Opinion on the Environment and Human Rights (Advisory Opinion OC-23/17), Ser. A) No. 23 (IACtHR, Nov. 15, 2017), at [81]–[82], [93]. Y. Dinstein, The International Law of Belligerent Occupation (2009) (Dinstein, Belligerent Occupation), at 35. Indeed, “[a]djudicative and quasi-adjudicative bodies have applied this territorial principle to other scenarios that fall short of full occupation but still involve de facto control – lawful or unlawful – of some physical domain within the borders of another State . . . This includes application to peacekeepers, who are assigned to a particular territory but remain the responsibility of the troop-contributing State to the extent that the nationality State has the ability to ensure that its troops respect the rights of the local

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required.65 What matters is that the state is adjudged to exercise overall control of a defined territory for some period of time, and to the exclusion of the territorial state.66 For example, the ICJ held in its Israeli Wall opinion that Israel’s human rights obligations apply to “all conduct by the State party’s authorities or agents in [the occupied] territories that affect the enjoyment of rights . . . and fall within the ambit of State responsibility of Israel under the principles of public international law.”67 Much the same result was reached by the European Court of Human Rights in Cyprus v. Turkey, finding that responsibility followed not simply because relevant actions had been taken by government agents, but more generally from the relevant act or omission having taken place within an area of effective control.68 Second, jurisdiction is established in relation to a refugee who is “in the territory of another State but who [is] found to be under the former State’s authority and control through its agents operating – whether lawfully or unlawfully – in the latter State.”69 States have, for example, been found to have jurisdiction over individuals within their embassy or consulate,70 or who are onboard craft or vessels registered in their country, or which are flying their

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populace”: B. Van Schaack, “The United States: Position on the Extraterritorial Application of Human Rights Obligations: Now is the Time for Change,” (2014) 90 International Law Studies 20, at 38. As is also the case under the Fourth Geneva Convention, the lawfulness of such military operations is in principle irrelevant to the obligations imposed on the occupying power. See Geneva Convention relative to the Protection of Civilian Persons in Time of War, 75 UNTS 287 (UNTS 973), done Aug. 12, 1949, entered into force Oct. 21, 1950, at Art. 2; Hirsi Jamaa v. Italy, (2012) 55 EHRR 21 (ECtHR [GC], Feb. 23, 2012), at [97] (noting that “responsibility of a Contracting Party may also arise when as a consequence of military action – whether lawful or unlawful – it exercises effective control of an area outside its national territory”). Dinstein, Belligerent Occupation, at 38. The Supreme Court of the United States was thus correct to find US jurisdiction on the grounds that “Guantanamo Bay is in every practical respect a United States territory”: Rasul v. Bush, 124 S. Ct. 2686 (US SC, June 28, 2004), at 2700 (per Kennedy J. concurring). Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, [2004] ICJ Rep 136, at [110], quoting “Concluding Observations of the Human Rights Committee: Israel,” UN Doc. CCPR/CO/78/ISR, Aug. 5, 2003, at [11]. Cyprus v. Turkey, (2001) 35 EHRR 30 (ECtHR [GC], May 10, 2001), at [77]. Issa et al. v. Turkey, (2004) 41 EHRR 567 (ECtHR, Nov. 16, 2004), at [71]. For example, in the context of a human rights claim by two Afghan refugee claimants who had escaped Australia’s Woomera Detention Center and entered the British Consulate in Melbourne where they “were told that while they were in the Consulate they would be kept safe,” the English Court of Appeal determined that it was “content to assume (without reaching a positive conclusion on the point) that while in the Consulate the applicants were sufficiently within the control of the consular staff to be subject to the [international human rights] jurisdiction of the United Kingdom”: R (B) v. Secretary of State for Foreign and Commonwealth Affairs, [2004] EWCA Civ 1344 (Eng. CA, Oct. 18, 2004), at [66]. The Court noted the decision in WM v. Denmark, (1992) 73 DR 193 (EComHR, Oct. 14, 1992)

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flag.71 It is also acknowledged that a state has jurisdiction over individuals held on its military bases, in detention centers, or in other closed facilities controlled by the extraterritorially acting state.72 Indeed, the European Court of Human Rights has found jurisdiction to be established even by the simple act of boarding a migrant vessel, the emphasis being placed in such cases on the de facto control exercised over the individuals concerned.73 This focus on the exercise of control as a means of establishing human rights jurisdiction can perhaps be seen most clearly in cases involving state agents forcibly apprehending and transporting an individual to their state’s territory.74 Courts have emphasized that the logic of finding jurisdiction in such a situation is the importance of stymying the evasion of obligations, since it would be “unconscionable . . . to permit a State party to perpetrate violations of [human rights] in the territory of another State, which violations it could not perpetrate within its own territory.”75 Thus, as observed in AlSkeini, jurisdiction may arise solely from “the exercise of physical power and control over the person in question.”76

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in which a citizen of the German Democratic Republic inside the Danish Embassy was determined to be under Danish jurisdiction for human rights purposes: ibid. at [64]–[66]. Medvedyev et al. v. France, (2010) 51 EHRR 39 (ECtHR [GC], Mar. 29, 2010), at [65]; Banković et al. v. Belgium et al., 11 BHRC 435 (ECtHR [GC], Dec. 12, 2011), at [73]. See generally WM v. Denmark, (1992) 73 DR 193 (EComHR, Oct. 14, 1992); W v. Ireland, [1983] ECHR 17 (EComHR, Feb. 28, 1983); X v. United Kingdom, (1977) 12 DR 73 (EComHR, Dec. 15, 1977); X v. Federal Republic of Germany, Application No. 1611/62 (EComHR, Sept. 25, 1965); Al-Jedda v. United Kingdom, (2011) 53 EHRR 23 (ECtHR [GC], July 7, 2011); Al-Saadoon and Mufdhi v. United Kingdom, (2010) 51 EHRR 9 (ECtHR, Mar. 2, 2010), at [19]. See Al-Saadoon and Mufdhi v. United Kingdom, (2010) 51 EHRR 9 (ECtHR, Mar. 2, 2010), at [19]; Al-Skeini et al. v. Secretary of State for Defense, [2007] UKHL 26 (UK HL, June 17, 2007), at [25]; Hess v. United Kingdom, (1975) 2 DR 72 (EComHR, May 28, 1975); Hassan v. United Kingdom, [2014] ECHR 1145 (ECtHR [GC], Sept. 16, 2014), at [78]. Al-Skeini et al. v. United Kingdom, (2011) 53 EHRR 18 (ECtHR [GC], July 7, 2011), at [136]; Medvedyev v. France, (2010) 51 EHRR 39 (ECtHR [GC], Mar. 29, 2010), at [65]. See e.g. Ramirez v. France, (1996) 86-B DR 155 (EComHR, June 24, 1996), at 162; Reinette v. France, (1989) 63 DR 189 (EComHR, Oct. 2, 1989), at [2]; Freda v. Italy, (1980) 21 DR 250 (EComHR, Oct. 7, 1980), at 256; Öcalan v. Turkey, [2005] ECHR 282 (ECtHR [GC], May 12, 2005), at [93]; Stocke v. Germany, (1991) 13 EHRR 839 (ECtHR, Mar. 19, 1991); Casariego v. Uruguay, HRC Comm. No. 56/1979, UN Doc. CCPR/C/13/D/56/1979, decided July 29, 1981, at [10.3]; Burgos v. Uruguay, HRC Comm. No. 52/1979, UN Doc. CCPR/C/13/D/52/1979, decided July 29, 1981, at [12.3]. Burgos v. Uruguay, HRC Comm. No. 52/1979, UN Doc. CCPR/C/13/D/52/1979, decided July 29, 1981, at [12.3]; see also Issa et al. v. Turkey, (2004) 41 EHRR 567 (ECtHR, Nov. 16, 2004), at [71]. Al-Skeini et al. v. United Kingdom, (2011) 53 EHRR 18 (ECtHR [GC], July 7, 2011), at [136]. Most cases to date have involved situations of full physical custody by way of arrest or kidnapping. In Al-Saadoon, for example, the Court emphasized “the total and exclusive” control exercised by the United Kingdom over the military bases in Iraq: Al-Saadoon and Mufdhi v. United Kingdom, (2010) 51 EHRR 9 (ECtHR, Mar. 2, 2010), at [88].

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Similarly, in the Marine I case,77 the UN Committee Against Torture was called upon to consider Spain’s human rights liability stemming from the rescue of some 369 Asians and Africans in waters off the West African coast. After boarding the Marine I to provide emergency healthcare, Spanish authorities towed the vessel to the Mauritanian port of Nouadhibou where the passengers were disembarked and placed at a former fishing plant under Spanish authority. Most were repatriated, though twenty-three persons who resisted repatriation remained at the fishing plant guarded by Spanish security forces for five months under conditions alleged to be rights-violative. The Committee Against Torture concluded that Spain exercised jurisdiction both during the interception and throughout the detention in Mauritania, noting that: [J]urisdiction must also include situations where a State party exercises, directly or indirectly, de facto or de jure control over persons in detention . . . In the present case . . . the State party maintained control over the persons on board the Marine I from the time the vessel was rescued and throughout the identification and repatriation process that took place at Nouadhibou. In particular, the State party exercised, by virtue of a diplomatic agreement concluded with Mauritania, constant de facto control over the alleged victims during their detention in Nouadhibou. Consequently, the Committee considers that the alleged victims are subject to Spanish jurisdiction insofar as the complaint that forms the subject of the present communication is concerned.78

Beyond its value as a clear affirmation that an intercepting state retains jurisdiction even when its control over persons is exercised on the territory of another country, the Marine I case makes a more general point that jurisdiction can be established under the control or authority principle where detention is effected on an indirect basis: [T]he jurisdiction of a State party refers to any territory in which it exercises, directly or indirectly, in whole or in part, de jure or de facto effective control, in accordance with international law. In particular . . . such jurisdiction must also include situations where a State party exercises, directly or indirectly, de facto or de jure control over persons in detention.79 77

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JHA v. Spain, CAT Comm. No. 323/2007, UN Doc. CAT/C/41/D/323/2007, decided Nov. 11, 2008. Ibid. at [8.2]. The case was nonetheless declared inadmissible because the complainant was not expressly authorized to act on behalf of the victims. The Committee affirmed this understanding of jurisdiction in Sonko v. Spain, CAT Comm. No. 368/2008, UN Doc. CAT/C/47/D/368/2008, decided Nov. 25, 2011, at [10.3] (finding that jurisdiction was exercised by the Spanish Civil Guard in relation to four swimmers who were intercepted along the coast between Belionex and Benzú and later (unilaterally) forced off the officials’ vessel in Moroccan territorial waters). Ibid.

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Third – assuming there is neither territorial nor personal control – recent case law suggests that a refugee is under a state party’s jurisdiction if located in a territory where that state exercises relevant public powers abroad. In AlSkeini,80 the key question was whether the United Kingdom had jurisdiction over civilians killed in the course of security operations by British soldiers in Basrah. Rather than determining the issue of responsibility simply by reference to either territorial or personal control, the European Court of Human Rights instead observed that: [T]he Court has recognised the exercise of extraterritorial jurisdiction by a Contracting State when, through the consent, invitation or acquiescence of the Government of that territory, it exercises all or some of the public powers normally to be exercised by that Government . . . Thus where, in accordance with custom, treaty or other agreement, authorities of the Contracting State carry out executive or judicial functions on the territory of another State, the Contracting State may be responsible for breaches of [international law] thereby incurred, as long as the acts in question are attributable to it rather than to the territorial State.81

In other words, where states are entitled to exercise public powers abroad, jurisdiction for human rights purposes will follow under certain circumstances.82 This point was made particularly clearly by the Court in a case involving an eighteen-year-old Moldovan killed at a peacekeeping security checkpoint under Russian command: [I]n certain circumstances, the use of force by a State’s agents operating outside its territory may bring the individual thereby brought under the control of the State’s authorities into the State’s Article 1 jurisdiction . . . This may include the exercise of extra-territorial jurisdiction by a Contracting State when, in accordance with custom, treaty or other agreement, its authorities carry out executive functions on the territory of another State . . . In the present case, the checkpoint in question, situated in the security zone, was manned and commanded by Russian soldiers in accordance with the agreement putting an end to the military conflict in the Transdniestrian region of Moldova . . . Against this background, the Court 80

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Al-Skeini et al. v. United Kingdom, (2011) 53 EHRR 18 (ECtHR [GC], July 7, 2011), at [102], [130]–[150]. Ibid. at [135]. The European Court of Human Rights affirmed the “public powers” approach to jurisdiction in Jaloud v. Netherlands, [2014] ECHR 1292 (ECtHR [GC], Nov. 20, 2014), at [145]. While there are aspects of the Jaloud decision that suggest that jurisdiction was anchored in personal control over the individuals at the checkpoint (see A. Sari, “Jaloud v. Netherlands: New Directions in Extra-Territorial Military Operations,” www.ejiltalk.org, Nov. 24, 2014), the Court emphasized that the conduct in question was attributable to the state [151], [154]–[155] and that the state’s actions taken were pursuant to various memoranda of understanding [146]–[147], factors that are consistent with the public powers approach to jurisdiction.

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considers that, in the circumstances of the present case, Vadim Pisari was under the jurisdiction of the Russian Federation [emphasis added].83

Three requirements must be met for jurisdiction to be established on the basis of the exercise of public powers abroad. First, the legal authority of the extraterritorial state to act must be established in “accordance with custom, treaty or other agreement.”84 Excluded therefore are situations such as an unlawful invasion in which public powers are effectively usurped by the foreign state. But because some “other agreement” falling short of custom or treaty suffices, even relatively informal agreements – memoranda of understanding, an exchange of letters – are enough to show the requisite consent.85 Second, the activities undertaken must be fairly characterized as a “public power[] normally to be exercised by that Government.”86 The notion of public power is not well-defined in international law, and may thus give rise to disagreement in some cases. But since the court in AlSkeini made clear that “public powers” include not just security or civil administration, but also executive and judicial functions,87 there can be little doubt that the exercise of migration control – being a core law enforcement task and exclusive sovereign prerogative – constitutes a public power.88 Third, the breach of human rights resulting from the exercise of public powers must be attributable to the extraterritorially acting state, rather than to the territorial state.89 The real link required would be readily established where, for example, the state in question has actually deployed officers or vessels engaged directly in 83 84

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Pisari v. Republic of Moldova and Russia, [2015] ECHR 403 (ECtHR, Apr. 21, 2015), at [33]. Ibid. at [139], quoting Al-Skeini et al. v. United Kingdom, (2011) 53 EHRR 18 (ECtHR [GC], July 7, 2011), at [135]. See Jaloud v. Netherlands, [2014] ECHR 1292 (ECtHR [GC], Nov. 20, 2014), at [146]–[147] (noting that “[t]he practical elaboration of the multinational force was shaped by a network of Memoranda of Understanding defining the interrelations between the various armed contingents present in Iraq”). Ibid. at [139], quoting Al-Skeini et al. v. United Kingdom, (2011) 53 EHRR 18 (ECtHR [GC], July 7, 2011), at [135]. Ibid. at [139], [143]–[148], quoting Al-Skeini et al. v. United Kingdom, (2011) 53 EHRR 18 (ECtHR [GC], July 7, 2011), at [130]–[139]. As Emmerich de Vattel noted in The Law of Nations, every sovereign nation retains the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions or to admit them only in such cases or upon such conditions as it may see fit to prescribe: E. de Vattel, 2 The Law of Nations (1883), at §§ 94, 100. State practice confirms this principle: see e.g. Sale, Acting Commissioner, Immigration and Naturalization Service, et al., Petitioners v. Haitian Centers Council, Inc., et al., 509 US 155 (US SC, Jan. 12, 1993), at 199; R v. Immigration Officer at Prague Airport et al., ex parte European Roma Rights Centre et al., [2004] UKHL 55 (UK HL, Dec. 9, 2004), at [45]. Al-Skeini et al. v. United Kingdom, (2011) 53 EHRR 18 (ECtHR [GC], July 7, 2011), at [135].

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enforcement.90 But under general principles of international law, conduct is also attributable to a state where private actors or third state authorities act under its direction and control,91 or where effective control is retained over officials, including those carrying out migration control as part of an international organization.92 Assuming, then, that jurisdiction can be established when a state exercises effective control over territory, authority over individuals, or undertakes public powers abroad, what of the situation in which more than one state can be said simultaneously to have jurisdiction? Effective control over territory is normally exclusive, but neither authority over individuals nor the exercise of public powers necessarily preempts the simultaneous jurisdiction of a territorial or cooperating state. Can the state acting extraterritorially be held to exercise jurisdiction in the case of such non-exclusivity? The traditional view in human rights law that only a single state can be said to exercise jurisdiction in a given context93 has been largely rejected, with human rights law now more closely aligned with the dominant position in public international law that two or more states may simultaneously exercise jurisdiction and hence be simultaneously responsible.94 In other words, the fact that several states have jurisdiction does not diminish the individual responsibility of any particular state.95 90

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This was the case, for example, in Pisari v. Republic of Moldova and Russia, [2015] ECHR 403 (ECtHR, Apr. 21, 2015), where the relevant actions were taken by “peacekeeping military forces belonging to the Russian Federation”: ibid. at [9]. See Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. US), [1986] ICJ Rep 14; “Draft Articles on Responsibility of States for Internationally Wrongful Acts,” UN Doc. A/56/10, Ch. IV.E.1, adopted Nov. 2001 (International Law Commission, “Draft Articles”), at Arts. 8, 17. See generally J. Crawford, State Responsibility: The General Part (2013) (Crawford, State Responsibility), at 126–132, 146–161. See Al-Jedda v. United Kingdom, (2011) 53 EHRR 23 (ECtHR [GC], July 7, 2011), at [80]; International Law Commission, “Draft Articles on the Responsibility of International Organizations,” [2011] United Nations Juridical Yearbook 393, at Art. 7; Crawford, State Responsibility, at 422–434. If only one state could exercise jurisdiction, this would make shared responsibility for the breach of human rights obligations implausible. See e.g. Hess v. United Kingdom, (1975) 2 DR 72 (EComHR, May 28, 1975). International Law Commission, “Draft Articles,” at Art. 47; Crawford, State Responsibility, at 325–328, 333–334. International Law Commission, “Draft Articles,” at Art. 47(1); Crawford, State Responsibility, at 333–334. See generally T. Gammeltoft-Hansen, Access to Asylum: International Refugee Law and the Globalisation of Migration Control (2011), at 100–208. This bedrock principle of public international law can be seen, for example, in the reasoning of the ICJ in the Certain Phosphate Lands case, in which the Court rejected the Australian argument that a finding of individuated liability against it was foreclosed by the fact that its trusteeship of Nauru was shared with New Zealand and the United Kingdom. “Australia has raised the question whether the liability of the three States would be ‘joint and several’ (solidaire), so that any one of the three would be liable to make full reparation for damage flowing from any breach of the obligations of the Administering Authority, and not merely a one-third or some other proportionate share.

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In line with this more general approach, the human rights cases of Al-Skeini and Hirsi expressly rejected an “all or nothing” approach to jurisdiction, finding that “rights can be ‘divided and tailored.’”96 Thus, for example, in Ilaşcu, the European Court of Human Rights held that both Moldova and Russia had exercised jurisdiction – Russia due to its decisive influence over the local Transdniestrian regime, Moldova through its de jure sovereignty over the area – and determined that simultaneous yet differentiated human rights responsibility followed.97 The Court also rejected the view that the Netherlands had no jurisdiction over a command checkpoint in Iraq manned by its troops simply because the United Kingdom – as a formal occupying power – might also have jurisdiction there. To the contrary, the Court found in Jaloud that a party “is not divested of its ‘jurisdiction’ . . . solely by dint of having accepted the operational control of . . . a United Kingdom officer.”98 The same principle has been found to apply where distinct actions by more than one state result in a common harm, as is clear from the ruling in MSS v. Belgium and Greece determining that Belgium was in breach for returning the applicant to Greece contrary to the duty of non-refoulement, even as it found that Greece was itself liable for the failure to establish adequate asylum procedures and to avoid the ill-treatment of those seeking its protection.99 In sum, rights under the Refugee Convention not subject to an express level of attachment are owed even to refugees not physically present in the territory of a state party. In some cases – rights to property, tax equity, and access to the courts – the literal framing of the rights without any stipulation of territorial attachment is shown by the historical record to follow from an intention to enable refugees to vindicate rights beyond their physical location. In other instances, the decision to allocate core dignity and protection rights without any attachment requirement aligns with the basic object and purpose of a treaty predicated on refugees being able to access protection. In consonance

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This . . . is independent of the question whether Australia can be sued alone. The Court does not consider that any reason has been shown why a claim brought against only one of the three States should be declared inadmissible in limine litis merely because that claim raises questions of the administration of the Territory, which was shared with two other States. It cannot be denied that Australia had obligations under the Trusteeship Agreement, in its capacity as one of the three States forming the Administering Authority, and there is nothing in the character of that Agreement which debars the Court from considering a claim of a breach of those obligations by Australia”: Case Concerning Certain Phosphate Lands in Nauru (Nauru v. Australia), [1992] ICJ Rep 240, at [48]. Al-Skeini et al. v. United Kingdom, (2011) 53 EHRR 18 (ECtHR [GC], July 7, 2011), at [137]; Hirsi Jamaa v. Italy, (2012) 55 EHRR 21 (ECtHR [GC], Feb. 23, 2012), at [74]. Ilaşcu et al. v. Moldova and Russia, (2005) 40 EHRR 46 (ECtHR [GC], July 8, 2004), at [376]–[394]; see also Drozd and Janousek v. France and Spain, (1992) 14 EHRR 745 (ECtHR, June 26, 1992), at [91]–[96]. Jaloud v. Netherlands, [2014] ECHR 1292 (ECtHR [GC], Nov. 20, 2014), at [143]. MSS v. Belgium and Greece, (2011) 53 EHRR 28 (ECtHR [GC], Jan. 21, 2011).

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with the human rights law context of the Refugee Convention, these rights are owed to any refugee under the jurisdiction of a state party.100 A state party exercises jurisdiction and is thereby bound to respect those Convention rights not subject to an attachment requirement in relation to refugees located in a territory over which the state party exercises effective control; if the refugees themselves are subject to that state party’s effective authority and control, whether lawfully or not, outside that state’s territory; or if the refugees are subject to the state party’s exercise of public powers in another country by way of agreement with the latter state. A state may moreover be found to have jurisdiction, and hence owe duties of protection to refugees, even when one or more other states also has jurisdiction; in such a situation, states have simultaneous (even if differentiated) responsibilities.

3.1.2 Physical Presence Several additional rights – to freedom of religion, to receive identity papers,101 to freedom from penalization for illegal entry,102 and to be subject to only necessary and justifiable constraints on freedom of movement – accrue to all refugees who are simply “in” or “within” a contracting state’s territory.103 Any “In view of the purposes and objects of human rights treaties, there is no a priori reason to limit a state’s obligation to respect human rights to its national territory. Where agents of the state, whether military or civilian, exercise power and authority (jurisdiction, or de facto jurisdiction) over persons outside national territory, the presumption should be that the state’s obligation to respect the pertinent human rights continues. That presumption could be rebutted only when the nature and content of a particular right or treaty language suggest otherwise”: T. Meron, “Extraterritoriality of Human Rights Treaties,” (1995) 89(1) American Journal of International Law 78, at 80–81. 101 “Since Art. 27 contains no [status recognition] qualification of the right to be issued with identity papers, this provision would seem to encompass asylum applicants in accordance with the notion of presumptive refugee status, as based on the declaratory nature of status recognition”: J. Vedsted-Hansen, “Article 27,” in A. Zimmermann ed., The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary 1165 (2011), at 1173. The UNHCR’s advice that such identity documents must be issued only upon status recognition (UNHCR, “Identity Documents for Refugees,” UN Doc. EC/SCP/ 33, July 20, 1984, at [11], [18]) is therefore unsound, as Vedsted-Hansen notes: ibid. 102 But see G. Noll, “Article 31,” in A. Zimmermann ed., The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary 1243 (2011), at 1258, arguing that “[t]he word ‘enter’ denotes acts that are directly related to a concrete process of ‘passing within the boundaries of a country’ which, if uninterrupted, would be likely to succeed . . . As long as interception is attributable to the intercepting State . . . the refugee will be protected under Art. 31 in relation to that State [emphasis added].” The equation of where the refugee would have been but for interception with where that refugee actually is cannot be reconciled to the plain language of Art. 31, which speaks to refugees who “enter or are present,” with no language including attempted entry or planned-for presence. 103 See Refugee Convention, at Arts. 4 (“religion”), 27 (“identity papers”), 31(1) (“nonpenalization for illegal entry or presence”), and 31(2) (“movements of refugees unlawfully in the country of refuge”). This basic principle was recently recognized by the European 100

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refugee physically present, lawfully or unlawfully, in territory under a state’s jurisdiction may invoke these rights.104 This conclusion follows not only from the plain meaning of the language of “in” or “within,”105 but also from the express intention of the drafters,106 who insisted that these rights be granted even to “refugees who had not yet been regularly admitted into a country.”107 This position is also consistent with the context of the Convention as a whole, most notably with the approach taken to the provisional suspension of rights in the context of a national emergency.108 Under general principles of territorial jurisdiction, this level of attachment enfranchises, for example, not only refugees within a state’s land territory, but those on its inland waterways or territorial sea,109 including on islands,

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Court of Justice: ND and NT v. Spain, Dec. Nos. 8675/15 and 8697/15 (ECtHR, Feb. 13, 2020), at [183]. But see Minister for Immigration and Multicultural Affairs v. Khawar, [2002] HCA 14 (Aus. HC, Apr. 11, 2002), per Justices McHugh and Gummow: “Nor does the Convention specify what constitutes entry into the territory of a contracting state so as then to be in a position to have the benefits conferred by the Convention. Rather, the protection obligations imposed by the Convention upon contracting states concern the status and civil rights to be afforded refugees who are within the contracting states.” While somewhat unclear, the passage might be read to suggest that rights which inhere upon mere presence in a state may be withheld on the basis that, as a matter of law, the state has determined the person not to have formally entered its territory. Such an approach would confuse mere physical presence with lawful presence (see Chapter 3.1.3). The fact that the drafters did not elaborate the meaning of “in” or “within” a state’s territory simply confirms the self-evident plain meaning of those terms, i.e. physical presence in the territory of the state in question. See G. Stenberg, Non-expulsion and Non-refoulement (1989), at 87: “The statement that a person is present in the territory of a State indicates that he is physically within its borders.” Mr. Larsen of Denmark persuaded the Ad Hoc Committee to draw up “a number of fairly simple rules for the treatment of refugees not yet authorized to reside in a country”: Statement of Mr. Larsen of Denmark, UN Doc. E/AC.32/SR.15, Jan. 27, 1950, at 22. To similar effect, the representative of the International Refugee Organization stressed the importance of including in the Convention “provisions concerning refugees who had not yet been regularly admitted”: ibid. at 18. Ibid. at 18. The Danish representative similarly distinguished between “refugees regularly resident” and “those . . . who had just arrived in the initial reception country”: Statement of Mr. Larsen of Denmark, UN Doc. E/AC.32/SR.16, Jan. 30, 1950, at 11. The interpretation of the Refugee Convention as granting rights even prior to formal verification of status is buttressed by the specific incorporation of Art. 9 in the Refugee Convention, which allows governments provisionally to suspend the rights of persons not yet confirmed to be refugees if the asylum state is faced with war or other exceptional circumstances. It follows from the inclusion of this provision in the Convention that, absent such extreme circumstances, states must honor Convention rights pending verification of status. See generally Chapter 3.5.1. See e.g. UNHCR Executive Committee Conclusion No. 97, “Conclusion on Protection Safeguards in Interception Measures” (2003), at [(a)(i)]: “The State within whose sovereign territory, or territorial waters, interception takes place has the primary responsibility for addressing any protection needs of intercepted persons.”

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islets, rocks, and reefs; it includes also those in the airspace above each of these.110 As a matter of international refugee law, therefore, Australia’s decision to excise thousands of its islands,111 and ultimately the entirety of Australia,112 from its so-called “migration zone” was of no force or effect: any refugee present in an excised place remains in Australian territory and thus entitled to rights owed to refugees physically present. Similarly, the US policy of refusing to protect Cuban refugees deemed “wet foot” arrivals113 – including in one instance fifteen refugees found clinging to an old Key West bridge no longer connected to land114 – is patently unlawful, as such refugees are clearly within the US territorial sea and therefore physically present in the United States. A state’s territory moreover includes both its ports of entry115 and so-called “international zones” within a state’s territory.116 As recently affirmed by a Grand Chamber of the European Court of Human Rights, the special nature of the context as regards migration cannot justify an area outside the law where individuals are covered by no legal system capable of affording them enjoyment of the rights and guarantees protected by the Convention which the States have undertaken to secure to everyone within their jurisdiction.117

To the extent that a state acquires additional territory by accretion, cession, conquest, occupation, or prescription,118 it is also bound to honor rights that apply at this second level of attachment in such territory.

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J. Crawford, Brownlie’s Principles of Public International Law (2012) (Crawford, Brownlie’s Public International Law), at 203. A. Vogl, “Over the Borderline: A Critical Inquiry into the Geography of Territorial Excision and the Securitisation of the Australian Border,” (2015) 38(1) University of New South Wales Law Journal 114, at 126. O. White, “Australia: Removing a Country from the Migration Zone,” May 27, 2013, https://jrs.org.au/australia-removing-a-country-from-the-migration-zone/, accessed Feb. 1, 2020. R. E. Wasem, “Cuban Migration to the United States: Policy and Trends,” Congressional Research Service, June 2, 2009, at 16–17. D. Fears, “Immigration Issue Threatens GOP’s Florida Stronghold; Cuban Americans Angry Over ‘Wet Foot’ Policy,” Washington Post, Feb. 17, 2006. G. Goodwin-Gill and J. McAdam, The Refugee in International Law (2007) (Goodwin-Gill and McAdam, Refugee in International Law), at 207. Amuur v. France, [1996] ECHR 25 (ECtHR, June 25, 1996). ND and NT v. Spain, Dec. Nos. 8675/15 and 8697/15 (ECtHR, Feb. 13, 2020), at [110]. See generally M. Shaw, International Law (2014), at 358–376. The Supreme Court of the United Kingdom thus sensibly concluded that “the Refugee Convention continues to apply to the [unceded Sovereign Base Authority areas of Cyprus] . . . in the same way as it applied to the whole colony of Cyprus before 1960 . . . The United Kingdom is, as a matter of international law, bound by the Convention and Protocol as such”: R (Tag Eldin Bashir) v. Secretary of State for the Home Department, [2018] UKSC 45 (UK SC, July 30, 2018), at [71]–[72].

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A state is not, however, required to grant rights defined by this level of attachment to refugees with whom it may come into contact in territory under the full sovereign authority of another state, including in particular refugees who arrive at a state’s embassy or other diplomatic post abroad. While such premises are under the flag state’s jurisdiction and immune from intrusion,119 they are neither assimilated to the territory of the state that established the diplomatic mission, nor otherwise free from the legal control of the territorial state.120 Because a diplomatic post is not a part of the territory of the state whose interests it represents, the primary responsibility to honor the rights of any refugees physically present there falls to the country in which the post is located.121

3.1.3 Lawful or Habitual Presence Refugees who are not simply physically present, but who are also lawfully or habitually present in the territory of a state party, are further entitled to claim the rights that apply at the third level of attachment. 119

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Vienna Convention on Diplomatic Relations, 500 UNTS 95 (UNTS 7310), done Apr. 18, 1961, entered into force Apr. 24, 1964, at Art. 22. Asylum Case (Colombia v. Peru), [1950] ICJ Rep 266. The reference to “special arrangements” in the Vienna Convention on Diplomatic Relations, at Art. 41, has however been said to “allow[] for bilateral recognition of the right to give asylum to political refugees within the mission”: Crawford, Brownlie’s Public International Law, at 403. The traditional practice of Latin American states to honor a grant of diplomatic asylum is codified in the Caracas Convention on Diplomatic Asylum, OAS Doc. OEA/Ser.X/1, entered into force Dec. 29, 1954. If the “refugees” in question are nationals of the territorial state, they have no entitlement to refugee rights as they will not have satisfied the alienage requirement of the Convention refugee definition. See generally A. Grahl-Madsen, The Status of Refugees in International Law (vol. I, 1966) (Grahl-Madsen, Status of Refugees I), at 150–154; J. Hathaway and M. Foster, The Law of Refugee Status (2014) (Hathaway and Foster, Refugee Status), at 17–23; and Goodwin-Gill and McAdam, Refugee in International Law, at 63. A more interesting question arises with regard to third-country nationals who arrive at a consulate or embassy. To the extent that consular or embassy officials have jurisdiction over such persons in line with norms of customary international law (see Chapter 3.1.1 at note 70), the state in whose consulate or embassy the refugee is located is logically bound to respect those rights not subject to territorial or a higher level of attachment (including, for example, the duty of non-refoulement). It would, in this sense, exercise jurisdiction concurrently with the territorial state. Yet only the territorial state would be bound to honor those rights which require physical presence in a state’s territory, or a higher level of attachment. See R (B) v. Secretary of State for Foreign and Commonwealth Affairs, [2004] EWCA Civ 1344 (Eng. CA, Oct. 18, 2004), at [88], finding that in the case of Afghan refugee claimants at risk of torture who escaped Australian detention and entered the British Consulate in Melbourne, “international law must surely permit the officials . . . to do all that is reasonably possible, including allowing the victim to take refuge in the diplomatic premises . . . In such circumstances, the [European Convention on Human Rights] may well impose a duty on a Contracting State to afford diplomatic asylum.”

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Lawful presence entitles refugees to be protected against expulsion, enjoy a more generous guarantee of internal freedom of movement, and engage in self-employment.122 Lawful presence was broadly conceived123 to include refugees in any of three situations. First, a refugee is lawfully present if admitted to a state party’s territory for a fixed period of time, even if only for a few hours.124 Whether the refugee resides elsewhere and is merely transiting through the second state125 or is sojourning there for a limited time,126 his or her presence is lawful so long as it is officially sanctioned. This clarification was thought particularly important to enable refugees living near a frontier to pursue commercial interests in a neighboring state.127 As the French

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See Refugee Convention, at Arts. 18 (“self-employment”), 26 (“freedom of movement”), and 32 (“expulsion”). The French representative described this level of attachment as “a very wide term applicable to any refugee, whatever his origin or situation. It was therefore a term having a very broad meaning”: Statement of Mr. Juvigny of France, UN Doc. E/AC.32/SR.42, Aug. 24, 1950, at 12. Indeed, the equally authoritative French language text of Arts. 18, 26, and 32 speaks to “un réfugié se trouvant régulièrement sur leur territoire,” the ordinary meaning of which signifies a refugee whose presence is in some sense officially authorized or accepted, but not predicated on having a formal legal status. Robinson, for example, concludes that “the mere fact of lawfully being in the territory, even without any intention of permanence, must suffice”: N. Robinson, Convention relating to the Status of Refugees: Its History, Contents and Interpretation (1953) (Robinson, History), at 117. Weis opines that “physical presence, even on a temporary stay or visit, [is] sufficient”: P. Weis, The Refugee Convention, 1951: The Travaux Préparatoires Analysed with a Commentary by Dr. Paul Weis (posthumously pub’d., 1995) (Weis, Travaux), at 152. “Mr. Guerreiro (Brazil) asked whether the phrase ‘refugees lawfully in their territory’ was intended to cover refugees in transit through a territory . . . Mr. Henkin (United States of America) explained that the provisions . . . were really intended to apply to all refugees lawfully in the country, even those who were not permanent residents. There was no harm in the provision even if it theoretically applied to refugees who were in a country for a brief sojourn, since the individuals would hardly seek the benefit of the rights contemplated”: Statements of Mr. Guerreiro of Brazil and Mr. Henkin of the United States, UN Doc. E/AC.32/SR.25, Feb. 10, 1950, at 5. See also Statement of Mr. Herment of Belgium, UN Doc. E/AC.32/SR.42, Aug. 24, 1950, at 17, that rights allocated at this second level of attachment would accrue to refugees “merely passing through a territory.” “The expression ‘lawfully in their territory’ included persons entering a territory even for a few hours, provided that they had been duly authorized to enter”: Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.41, Aug. 23, 1950, at 14; see also Statements of Mr. Henkin of the United States at UN Doc. E/AC.32/SR.42, Aug. 24, 1950, at 20 and 32. “The difficulties raised were . . . not academic, at least in the case of refugees living near a frontier”: Statement of the Chairman, Mr. Larsen of Denmark, UN Doc. E/AC.32/SR.41, Aug. 23, 1950, at 18. For example, it was suggested that the rights granted to refugees lawfully present in a state would accrue even to “a [refugee] musician [who] was staying

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delegate remarked, “it could not be argued that where there was no residence, the situation was irregular.”128 Second and of greater contemporary importance, the stage between “irregular” presence and the recognition or denial of refugee status, including the time required for exhaustion of any appeals or reviews, is also a form of “lawful presence.”129 Presence is lawful in the case of “a person . . . not yet in possession of a residence permit but who had applied for it and had the receipt for that application. Only those persons who had not applied, or whose applications had been refused, were in an irregular position [emphasis added].”130 The drafters recognized that refugees who travel without pre-authorization to a state party, but who are admitted to a process intended to assess their suitability for admission to that state, should “be considered, for purposes of the future convention, to have been regularly admitted.”131 So long as a refugee has provided authorities with the information that will enable them to consider

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for one or two nights in a country”: Statement of the Chairman, Mr. Larsen of Denmark, UN Doc. E/AC.32/SR.42, Aug. 24, 1950, at 16–17. Statement of Mr. Juvigny of France, UN Doc. E/AC.32/SR.42, Aug. 24, 1950, at 20. “For example, there were aliens lawfully in France without being resident. As evidence of that he mentioned the case of Belgian nationals, who needed only an identity card to spend a few hours in France. They would be in France lawfully, even though not resident”: ibid. But see Plaintiff M47/2012 v. Director-General of Security, [2012] HCA 46 (Aus. HC, Oct. 5, 2012) in which the High Court of Australia determined that a Sri Lankan Tamil admitted to Australian territory on Christmas Island on the basis of a “special purpose visa” that expired fifty minutes after his arrival was not “lawfully present” upon arrival at Christmas Island. Justice Heydon was emphatic that “[t]he fact that he arrived with a visa which quickly expired does not alter the fact that he has not been lawfully in Australia”: id. at [293]. This counterfactual conclusion is at odds with both the drafting history of the Refugee Convention and earlier Australian precedent: see e.g. Rajendran v. Minister for Immigration and Multicultural Affairs, (1998) 166 ALR 619 (Aus. FFC, Sept. 4, 1998). The French description of the three phases through which a refugee passes distinguished the second step of “regularization” of status from the third and final stage at which “they had been lawfully authorized to reside in the country”: Statement of Mr. Rain of France, UN Doc. E/AC.32/SR.15, Jan. 27, 1950, at 15. Ibid. at 20. Statement of Mr. Henkin of the United States, ibid. at 20. The inappropriateness of the equation of a “lawful presence” with admission to permanent residence was explicitly confirmed at the Conference of Plenipotentiaries by its President, who expressed the view that “such a suggestion would probably cover the situation in the United States of America, where there were [only] two categories of entrants, those legally admitted and those who had entered clandestinely. But it might not cover the situation in other countries where there were a number of intermediate stages; for example, certain countries allowed refugees to remain in their territory for a limited time”: Statement of the President, Mr. Larsen of Denmark, UN Doc. A/CONF.2/SR.14, July 10, 1951, at 17. The only response to this clarification was an assertion by the representative of the United States that his country’s system was not quite as simple as the President had implied. No delegate, however, challenged the accuracy of the President’s understanding of “lawful presence” as including refugees subject to the various “intermediate stages” which a country might establish for refugees coming directly to its territory.

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his or her entitlement to refugee status – in particular, details of personal and national identity, and the facts relied upon in support of the claim for admission – there is clearly a legal basis for the refugee’s presence.132 The once irregularly present refugee is now lawfully present,133 as he or she has satisfied the administrative requirements established by the state to consider which persons who arrive without authorization should nonetheless be allowed to remain there.134

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Consistent with the duty of states to implement their international legal obligations in good faith (see Chapter 2.3 at note 129), it must be possible for all Convention refugees to fulfill any such requirements. Excluded, therefore, are any requirements that are directed to matters unrelated to refugee status, including suitability for immigration on economic, cultural, personal, or other grounds. Account must also be taken of any genuine disabilities faced by particular refugees, for example by reason of language, education, mistrust, or the residual effects of stress or trauma, which may make it difficult for them to provide authorities with the information required to verify their refugee status. Because refugee status assessment involves a shared responsibility between the refugee and national authorities (see UNHCR, Handbook, at [196]), it is the responsibility of the receiving state to take all reasonable steps to assist refugees to state their claims to protection with clarity. See generally W. Kälin, “Troubled Communication: Cross-Cultural Misunderstandings in the Asylum Hearing,” (1986) 20 International Migration Review 230; J. Hathaway, Rebuilding Trust: Report of the Review of Fundamental Justice in Information Gathering and Dissemination at the Immigration and Refugee Board of Canada (1994); A. Leiss and R. Boesjes, Female Asylum Seekers (1994); UNHCR, “Refugee Children: Guidelines on Protection and Care” (1994); R. Barsky, Constructing a Productive Other: Discourse Theory and the Convention Refugee Hearing (1994); UNHCR, “Guidelines on Policies and Procedures in Dealing with Unaccompanied Children Seeking Asylum” (1997); and H. Evans Cameron, Refugee Law’s Fact-Finding Crisis: Truth, Risk, and the Wrong Mistake (2018). Referring to this drafting history, UNHCR helpfully observes that “[w]hilst the term ‘regularly admitted’ did not eventually find its way into the 1951 Convention it informed the concept of ‘lawfully in’”: UNHCR, Handbook on Protection of Stateless Persons (2014), at 48, n. 81. Grahl-Madsen suggests one potentially important exception to this general principle. He argues that a refugee who is detained pending verification of his claim to Convention refugee status (presumably on grounds that meet the justification test of Art. 31(2) of the Convention) can no longer be considered to be “lawfully” present: GrahlMadsen, Status of Refugees II, at 361–362. This conclusion is clearly tenable, though not based on decisions reached during the drafting process. A detained refugee claimant would still be entitled to those rights which are not restricted to refugees whose presence is lawful, i.e. the rights defined by the first level of attachment. After reviewing the various approaches to interpreting “lawful presence,” a recent study commissioned by UNHCR refers to the understanding posited here as “the most appropriate interpretation of Article 26, particularly in the African setting. Under this reading, the right to freedom of movement takes effect as soon as a refugee does all in his or her power to apply for asylum in the state. This would take into account state practice (i.e. the procedure for applying), allow for security and protection concerns surrounding registration in times of mass influx, remove the potential for state abuse and fit logically within the five levels of attachment set out in the 1951 Convention”: N. Maple, “Rights at Risk: A Thematic Investigation into How States Restrict the Freedom of Movement of Refugees on the African Continent,” Oct. 2016, at 7.

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There is strong, albeit not unanimous,135 judicial affirmation that persons admitted to a refugee status assessment process are “lawfully present” (though not yet “lawfully staying”).136 The Full Federal Court of Australia determined in Rajendran that a Sri Lankan applicant whose refugee case had yet to be determined was “lawfully in” Australia by virtue of his provisional admission under domestic regulations for purposes of pursuing his claim.137 The South African Supreme Court of Appeal similarly found that “[a]fter an asylum seeker permit has been issued to him or her, the asylum seeker cannot be regarded as an ‘illegal foreigner’.”138 Thus, a person undergoing status assessment “remains ‘lawfully present’ in the country . . . [H]is presence in this country is lawful (albeit precarious and permissive).”139 In much the same vein, the Irish Court of Appeal determined that when a mother and her children “arrived in Ireland and immediately claimed asylum . . . [t]hey were 135

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Marx notes, for example, that “[t]he German Federal Constitutional Court . . . has repeatedly stated that Art. 26 [on freedom of movement of ‘lawfully present’ refugees] applies only to refugees whose refugee status has been finally determined . . . Yet, the residence of asylum seekers cannot simply be regarded as a matter of what domestic law says . . .. [which] blurs the important distinction of the 1951 Convention between the terms ‘lawfully staying’ and ‘lawfully present’”: R. Marx, “Article 26,” in A. Zimmermann ed., The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary 1147 (2011) (Marx, “Article 26”), at 1161. There is also occasional affirmation in domestic law, e.g. Article 8 of the Netherlands Law on Foreign Nationals of 2000, providing that “[a] foreign national shall be lawfully resident in the Netherlands . . . pending a decision on an application for the issue of a residence permit [on the basis of refugee status]”: cited in JN v. Staatssecretaris voor Veiligheid en Justitie, Dec. No. C-601/15 PPU (CJEU, Feb. 15, 2016). See also I. Zamfir, “Refugee Status Under International Law,” EU Parliamentary Research Service, Oct. 27, 2015, at 3/4 (“The second tier of rights are to be granted when refugees are ‘lawfully present’ in the host state (for example while their asylum claim is processed)”). “In the present case, Mr. Rajendran entered the country on a visitor’s visa. He now holds a bridging visa. If his application for a [refugee status-based] protection visa is ultimately unsuccessful . . . that visa will cease to have effect at the time stipulated in the relevant Migration Regulations . . . whereupon he will cease both to be lawfully in Australia and to be able to invoke Article 32”: Rajendran v. Minister for Immigration and Multicultural Affairs, (1998) 166 ALR 619 (Aus. FFC, Sept. 4, 1998). The logic of this position was more recently recognized by a judge in the Full Federal Court, who noted that “[t]he Migration Act uses the concept of a visa as the delineation between lawful and unlawful noncitizens . . . A visa is a statutory form of executive permission . . . There are two broad kinds of visa: temporary and permanent . . . The former constitutes permission to travel to and enter Australia, and remain during a specified period; until a specified event happens; or while the holder has a specified status”: Minister for Immigration and Border Protection v. SZVCH, [2016] FCAFC 127 (Aus. FFC, Sept. 14, 2016), at [75]–[76], per Mortimer J. Mustafa Aman Arse v. Minister of Home Affairs, Dec. No. 25/2010 (SA SCA, Mar. 12, 2010), at [19]. Similarly, the child of a person seeking recognition of refugee status is “a child who is lawfully in this country”: Minister of Home Affairs v. Watchenuka, (2004) 1 All SA 21 (SA SCA, Nov. 28, 2003), at [36], per Nugent J.A. Jannatu Alam v. Minister of Home Affairs, Dec. No. 3414/2010 (SA HC, Eastern Cape, Feb. 9, 2012), at 6–7.

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not then unlawfully present . . . [despite the fact that] they did not have a right to live in Ireland, unless successful in their asylum application.”140 And the Court of Justice of the European Union ruled that a person who would be removable but for his claim to be a refugee was “lawfully present” in the Czech Republic. The Court observed not only that EU law entitles asylum-seekers to remain in a Member State during the examination of their claims,141 but insisted more generally that “lawful presence” must be construed in a purposeful manner: [I]t is clearly apparent . . . that an asylum seeker, independently of the granting of [a residence] permit, has the right to remain in the territory of the Member State concerned at least until his application has been rejected at first instance, and cannot therefore be considered to be “illegally staying”.142

This understanding has moreover been embraced by the UNHCR: Given the declaratory nature of refugee status, Article 32 is . . . applicable to asylum-seekers, including those who have entered the country illegally but have since entered the asylum procedures and may therefore be considered as “authorized” to be present in the territory of the country and lawfully therein.143 140

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CI and Others v. Minister for Justice, Equality, and Law Reform, [2015] IECA 192 (Ir. CA, July 30, 2015), at [44]. See also Agha v. Minister for Social Protection, [2017] IEHC 6 (Ir. HC, Jan. 17, 2017), finding that a person undergoing refugee status assessment benefits from “a restricted consent pending the determination of the status of the asylum seeker,” though such consent does not amount to lawful stay (ibid. at [40]). Mehmet Arslan v. Czech Republic, Dec. No. C-534/11 (CJEU, May 30, 2013), at [44]. Ibid. at [48]. UNHCR, “Response to the Constitutional Court of Ecuador query regarding International Treaty No. 0030-13-TI,” Apr. 17, 2015, at 8. See also UNHCR, “Observations on the proposed amendments to the Danish Aliens legislation,” Oct. 31, 2016, at 3 (“The words ‘lawfully in’ included in Article 32 of the 1951 Convention impl[y] that the refugee is present on the territory of the host country in an authorized manner, under applicable national legislation, even if the refugee is authorized to remain only on a temporary basis. UNHCR is of the view that Article 32 should be extended to asylum-seekers lawfully in the territory of a contracting State, including those who have entered the country illegally but have since entered the asylum procedures and may therefore be considered as ‘authorized’ to be present in the territory of the country”); UNHCR, Intervention before the European Court of Human Rights in the case of Saadi v. United Kingdom, Mar. 30, 2007, at [27] (“UNHCR considers that the better view is that status regularisation, for the purposes of Art. 31(2), occurs once the asylum seeker submits to and meets the host State’s legal requirements to have his claim evaluated . . . Thus, once the domestic law formalities for access into the determination procedures have been complied with, status is regularised . . . and Art. 26 governs the position”); and UNHCR, “Statement on the reception conditions of asylum-seekers under the Dublin procedure,” filed in Court of Justice of the European Union case of CIMADE and GISTI v. Ministry of the Interior, Dec. No. C-179/11, Aug. 1, 2011, at [4.1.3] (“The rights which apply to refugees physically in or lawfully in the territory of the concerned State are applicable to asylum-seekers”).

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In contrast, in ST (Eritrea)144 the UK Supreme Court determined that “lawful presence” is an issue that “must be determined solely with reference to domestic law,”145 even if that law deems presence prior to formal recognition of status to be unlawful. In reaching this conclusion, the Court sidelined the reasoning of the House of Lords in the 2005 case of Szoma146 that a person undergoing refugee status assessment was lawfully present by virtue of “express written authority of an immigration officer provided for by statute.”147 It instead relied on an unwieldy amalgam of deference to the much earlier House of Lords case of Bugdaycay,148 an unfortunate UNHCR 144

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R (ST, Eritrea) v. Secretary of State for the Home Department, [2012] UKSC 12 (UK SC, Mar. 21, 2012). Ibid. at [13]. Indeed, one member of the Court wrote, “As to what [lawfully present] means, I see no warrant for interpreting the article as prohibiting the expulsion of a refugee who is not lawfully present on the basis of domestic law, but whose expulsion would contravene Convention norms [emphasis added]”: ibid. at [64], per Lord Dyson (concurring). This echoes the approach of the European Court of Human Rights interpreting the phrase “lawfully within the territory of a State” under regional human rights law to “refer[] to the domestic law of the State concerned. It is for the domestic law and organs to lay down the conditions which must be fulfilled for a person’s presence in the territory to be considered ‘lawful’”: Omwenyeke v. Germany, Dec. No. 44294/04 (ECtHR, Nov. 20, 2007), at [1]. A comparable, though somewhat less demanding, standard has been suggested by the New Zealand Court of Appeal, which determined that a person positively determined to be a Convention refugee was not lawfully present because he had “not been granted a permit to enter New Zealand”: Attorney General v. Zaoui, Dec. No. CA20/04 (NZ CA, Sept. 30, 2004), at [32]–[33]. See also the approval of the UK approach voiced in the High Court of Australia at note 152. Szoma v. Secretary of State for the Department of Work and Pensions, [2005] UKHL 64 (UK HL, Oct. 27, 2005). See generally C. Sawyer, “Elephants in the Room, or A Can of Worms: Szoma and Lawful Presence in the United Kingdom,” (2007) 14 Journal of Social Security Law 86. The Supreme Court noted simply that it approved of counsel’s decision not to rely on Szoma since “[t]he ancient maxim verba accipienda sunt secundum subjectam materiam (words are to be understood according to the subject-matter with which they deal) provides the best guide to the meaning that should be given to what Lord Brown said in [Szoma]”: R (ST, Eritrea) v. Secretary of State for the Home Department, [2012] UKSC 12 (UK SC, Mar. 21, 2012), at [38]. But given the generality of Szoma’s common sense approach to the meaning of words, the maxim might reasonably be thought not to be relevant. Szoma v. Secretary of State for the Department of Work and Pensions, [2005] UKHL 64 (UK HL, Oct. 27, 2005), at [28]. R v. Secretary of State for the Home Department, ex parte Bugdaycay, [1987] AC 514 (UK HL, Feb. 19, 1987), at 526, determining that not even temporary admission to the UK gave rise to lawful presence under British law. There is no indication that relevant portions of the Convention’s drafting history – e.g. those speaking to both temporary admission, and to presence before status was regularized as examples of lawful presence (see text at notes 128 and 130) – were drawn to the attention of the House of Lords. With the benefit of these insights, at least a core international understanding of “lawful presence” for refugee law purposes might well have been identified. In any event, Lord Bridge was clearly led to conclude against finding temporarily present persons to be “lawfully in” the country because of a mistaken belief that “if [this] argument is right, it must apply equally to any

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note,149 and speculation about what states likely intended150 to conclude that a refugee “is not lawfully present in the United Kingdom if she does not have leave to enter or remain in this country,”151 which would occur only if and when refugee status is affirmatively determined.152

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person arriving in this country . . . whether he is detained or temporarily admitted pending a decision on his application for leave to enter. It follows that the effect of the submission, if it is well-founded, is to confer on any person who can establish that he has the status of a refugee . . . but who arrives in the United Kingdom from a third country, an indefeasible right to remain here, since to refuse him leave to enter and direct his return to the third country will involve the United Kingdom in the expulsion of a ‘refugee lawfully in their territory’ contrary to article 32(1)”: ibid. at 526. But states may lawfully (and often do) interpose an eligibility determination procedure to determine whether some other state may be said to have primary responsibility to determine the claim to refugee status. Because a refugee not yet found eligible to pursue his or her claim is not yet lawfully present, Art. 32 does not govern his or her removal (though Art. 33 remains applicable): see Chapter 5.1 at note 46 ff. “[T]he UNHCR states in ‘“Lawfully Staying”’: A Note on Interpretation’ (1988) that its conclusion from the travaux is that the ‘lawfulness’ of the stay is to be judged against national rules and regulations governing such a stay . . . [Because] there is no consensus among the commentators that lawful presence should be given an autonomous meaning or what that meaning should be . . . we must take our guidance from what the framers of the Convention must be taken to have agreed to, as understood by the UNHCR”: R (ST, Eritrea) v. Secretary of State for the Home Department, [2012] UKSC 12 (UK SC, Mar. 21, 2012), at [33]–[34]. While the Court suggests that there is a lack of consistency in international scholarly commentary, there is in fact a strong consensus in favor of the approach taken here: see note 153. “A refugee who is lawfully present in the territory of a contracting state is entitled to the same treatment as regards self-employment as is accorded to aliens generally who are in the same circumstances: article 18. He must also be accorded the right to choose his place of residence and to move freely within the territory, subject to any regulations that are applicable to aliens generally in the same circumstances: article 26. The notifications that have been issued to the appellant from time to time, which require her to reside at an address notified to her by an immigration officer, to report to an immigration official every two months and not to work or engage in any business unless she has explicitly been granted permission to do so, make it plain that she is not being accorded the rights referred to in these articles. They are rights the granting of which a sovereign state could be expected to reserve to itself, in just the same way as it would wish to reserve to itself the decision as to whether a refugee should be granted permission to enter in its territory . . . It seems unlikely that the contracting states would have agreed to grant a refugee the freedom to choose their place of residence and to move freely within their territory before they had decided, according to their own domestic laws, whether or not to admit to the territory in the first place”: ibid. at [36]–[37]. R (ST, Eritrea) v. Secretary of State for the Home Department, [2012] UKSC 12 (UK SC, Mar. 21, 2012), at [24]. The court was emphatic that lawful presence “implies that his presence is not just being tolerated”: ibid. at [32]. This understanding was subsequently affirmed by the Court of Appeal in Hannah Blakesley v. Secretary of State for Work and Pensions, [2015] EWCA Civ 141 (Eng. CA, Feb. 26, 2015), at [41]: “His/her presence only becomes ‘lawful’ under UK law when the proper authority . . . has determined that the person is a refugee.” Two judges of the High Court of Australia subsequently voiced approval of this approach. “In R (ST) v. Secretary of

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This minority view of “lawful presence” – predicated on complete deference to domestic law, in particular to domestic laws purporting to deem all presence prior to recognition of refugee status to be unlawful – is problematic for at least three reasons.153

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State for the Home Department . . . the United Kingdom Supreme Court construed ‘lawfully’ as it appears in Art. 32 as meaning ‘lawful according to the domestic laws of the contracting state.’ This construction should be accepted”: Plaintiff M47/2012 v. Director-General of Security, [2012] HCA 46 (Aus. HC, Oct. 5, 2012), at [94], per Gummow J. Similarly, Justice Hayne was content to assume that rights requiring only lawful presence “should be read as meaning that the refugee has been granted the right to live in that state under the domestic law of that state”: ibid. at [217]. In line with this view, a subsequent decision of the Full Federal Court found that a recognized refugee to whom the Minister had opted not to provide a visa was “not ‘lawfully’ in Australia (because he has no visa) [and as such] does not have the benefit of other protection obligations in the Refugee Convention”: NBMZ v. Minister for Immigration and Border Protection, [2014] FCAFC 38 (Aus. FFC, Apr. 9, 2014), at [120]. The weight of scholarly opinion is at odds with the approach taken in ST (Eritrea). GrahlMadsen suggests that “a refugee’s presence may, on the face of it, be ‘illegal’ according to some set of rules (e.g. aliens legislation), yet ‘legal’ within a wider frame of reference (e.g. international refugee law)”: Grahl-Madsen, Status of Refugees II, at 363. As Edwards observes, Grahl-Madsen’s conclusion (which Edwards adopts) mirrors the approach advanced here, namely “that one might be unlawfully in the territory according to national immigration laws, yet still be lawfully in the territory for the purposes of the 1951 Convention”. Marx writes that “[t]he term ‘lawfully present within a country’ according to refugee law . . . includes persons in a refugee status determination procedure who are at least lawfully present for the purposes of seeking refugee status . . . [T[he term ‘lawfully within a territory’ . . . is not simply a matter of what domestic law says . . . [R]efugee law, in this regard, supersedes domestic regulations”: Marx, “Article 26,” at 1156–1157. The outlier position is that of Goodwin-Gill and McAdam, who assert that lawful presence for purposes of Art. 32 means presence “on a more or less indefinite basis”: Goodwin-Gill and McAdam, Refugee in International Law, at 525. As Edwards observes, “Goodwin-Gill and McAdam’s view defers too heavily to national immigration laws (which vary), rather than to the essence of the 1951 Convention”: A. Edwards, “Article 18,” in A. Zimmermann ed., The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary 973 (2011), at 978; indeed, “[t]o adopt Goodwin-Gill and McAdam’s approach would [be to] permit States parties simply to refuse to grant rights or status and thereby avoid their obligations”: A. Edwards, “Article 17,” in A. Zimmermann ed., The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary 951 (2011) (Edwards, “Article 17”), at 965. Goodwin-Gill and McAdam moreover offer no legal argument to justify this clear deviation from the express provisions of the Convention, relying instead on a bald appeal to the importance of achieving consistency with relevant state practice. State practice may, of course, assist in establishing the interpretation of a treaty provision: Vienna Convention on the Law of Treaties, 1155 UNTS 331 (UNTS 18232), done May 23, 1969, entered into force Jan. 27, 1980 (Vienna Convention), at Art. 31(3)(b). However, state practice standing alone cannot give rise to a legal norm which may be relied upon to challenge the applicability of a conflicting treaty stipulation: see generally Chapter 2.4. In any event, there is – as described at note 135 ff. – significant state practice that accords with the view that “lawful presence” requires less than “lawful stay,” with only the latter notion denoting stay “on a more or less indefinite basis”: see Chapter 3.1.4. Another dissenting view is expressed by Livnat, who suggests that

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First, as noted in the concurrence of Lord Dyson in ST (Eritrea) itself, it is difficult to see on the basis of the plain meaning of the words that a person granted official permission to be present while his or her asylum claim is being assessed is not lawfully present: Without statutory intervention, it might be difficult to decide whether a person who has been granted temporary admission pending determination of her application for asylum is lawfully present in the territory. It is not self-evident that she is not lawfully present in these circumstances. After all, she is physically present in the territory and her presence has been authorized by the state, admittedly for a limited period.154

Indeed, as UNHCR has opined, “to be ‘lawfully in’ a State party, . . . presence in the country needs to be authorized by the State. The concept encompasses both presence which is explicitly sanctioned and also that which is known and not prohibited, taking into account all personal circumstances of the individual.”155 Second, a definition of “lawful presence” that requires an ongoing right to remain in the asylum country conflates “lawful presence” with “lawful stay,”156 thereby effectively eliminating one of the Convention’s five levels of attachment.157 Even as the drafters varied the level of attachment applicable to specific rights, they expressly opted to grant some rights at an intermediate point between “physical presence” and “lawful stay” – namely, “lawful presence.” Yet under the interpretation adopted in ST (Eritrea) there is no such intermediate point. Refugees would move directly from being merely

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while complete deference to national law “is clearly wrong,” lawful presence should be flexibly conceived in a manner that promotes the restoration of “refugees’ stability and psychological well-being” and which promotes “burden-sharing through international cooperation”: Y. Livnat, “Compulsory Secondary Movement and Article 32 of the Refugee Convention,” reflaw.org, Aug. 28, 2019. Rather than defining “lawful presence” in general terms, he proposes four factors that align the meaning of lawful presence with his views on the circumstances in which Art. 32 ought not to impede compulsory secondary movement (ibid.). This instrumentalist approach is, however, difficult to reconcile to both the interpretive requirements of the Vienna Convention (see Chapter 2) and to the fact that the third level of attachment governs rights other than Art. 32. R (ST, Eritrea) v. Secretary of State for the Home Department, [2012] UKSC 12 (UK SC, Mar. 21, 2012), at [56], per Lord Dyson (concurring). In line with this understanding, the House of Lords had earlier determined specifically that “[a]n asylum seeker . . . may commit a criminal offence by entering this country illegally. But on making his claim to the authorities, he may be granted temporary admission. His presence is no longer illegal”: Mark v. Mark, [2005] UKHL 42, (UK HL, June 30, 2005), at [48]. UNHCR, Handbook on Protection of Stateless Persons (2014), at [135]. See Chapter 3.1.4. This result was ironically reached by the UK Supreme Court in the very case that recognized that “[a]n examination of the Convention shows that it contemplates five levels of attachment to the contracting states”: R (ST, Eritrea) v. Secretary of State for the Home Department, [2012] UKSC 12 (UK SC, Mar. 21, 2012), at [21].

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physically (but “irregularly”) present, to securing simultaneously all the rights associated with both “lawful presence” and “lawful stay” when and if permission to remain is granted.158 Such an approach not only fails to comport with the explicit structure of the Convention, but also offends the fundamental principle that “[a]n interpreter is not free to adopt a reading that would result in reducing whole clauses or paragraphs of a treaty to redundancy or inutility.”159 Third, an understanding of “lawful presence” based exclusively on deference to the domestic law of the asylum country is not a contextually sound means of interpreting an international treaty. While the drafting history supports the view that “lawful presence” should take national standards as the point of departure,160 there is no reason to see such deference as absolute. To the contrary, as the UN Human Rights Committee has insisted, “[t]he question whether an alien is ‘lawfully’ within the territory of a State is a matter governed by domestic law, which may subject the entry of an alien to the territory of a State to restrictions, provided they are in compliance with the State’s international obligations [emphasis added].”161 A state’s general right to determine the scope of lawful presence is thus constrained by the impermissibility of deeming presence to be unlawful in circumstances when the Refugee Convention162 and other norms of international law deem presence to be lawful.163

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See Robinson, History, at 117. United States – Standards for Reformulated and Conventional Gasoline, WT/DS2/AB/R (WTO AB, Apr. 29, 1996), at 23. The ut res magis valeat quam pereat principle requires a reading of “all applicable provisions of a treaty in a way that gives meaning to all of them, harmoniously”: Korea – Definitive Safeguard Measure on Imports of Certain Dairy Products, WT/DS98/AB/R (WTO AB, Dec. 14, 1999), at [81]. As much is clear from the fact that the drafters agreed that if a state grants a refugee even very short-term permission to enter its territory, that refugee is – for the duration of that domestically granted status – lawfully present in that country: see text at note 124. UN Human Rights Committee, “General Comment No. 27: Freedom of Movement” (1999), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [4]. See also Amuur v. France, [1996] ECHR 25 (ECtHR, June 25, 1996), at [50], holding that lawfulness is not simply a question of compliance with national law. Kaya v. Haringey London Borough Council, [2001] EWCA Civ 677 (Eng. CA, May 1, 2001), at para. 31. For this reason, an understanding of “lawful presence” that effectively obviates this level of attachment by conflating it with “lawful stay” is not sound, as it contravenes the very structure of the Refugee Convention itself. See Chapter 2.2 regarding the interpretive role of internal context. It is persuasive that the International Criminal Court has determined that in understanding which persons are “lawfully present” for purposes of understanding the crime of deportation or forcible transfer of populations, “whether a person lived in a location for a sufficient period of time to meet the requirements for residency or whether he or she has been accorded such status under immigration laws is irrelevant”: Prosecutor v. Popović et al., Case No. IT-05–88-T, Trial Judgment (ICTY, June 10, 2010), at [900].

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Of particular importance, the jurisprudence of the United Nations Human Rights Committee interpreting the right to freedom of internal movement under the Civil and Political Covenant (which inheres in all persons “lawfully within the territory of a State”)164 is consistent with the view that persons allowed to remain in a state while their refugee claims are assessed are “lawfully present” in the asylum state. In Celepli v. Sweden,165 the Human Rights Committee considered the claim of a rejected refugee claimant formally ordered to be expelled to Turkey, but not in fact removed on humanitarian grounds. Despite the issuance of the expulsion order, the Committee determined the applicant to be “lawfully present” in Sweden: The Committee notes that the author’s expulsion was ordered on 10 December 1984, but that this order was not enforced and that the author was allowed to stay in Sweden, subject to restrictions on his freedom of movement. The Committee is of the view that, following the expulsion order, the author was lawfully in the territory of Sweden, for purposes of article 12, paragraph 1, of the Covenant, only under the restrictions placed upon him by the State party.166

Clearly, if a rejected refugee claimant allowed to remain on humanitarian grounds is “lawfully present” by virtue of the host government’s decision not to enforce the removal order, there can be little doubt that a refugee claimant admitted to a status determination procedure and authorized to remain pending assessment of his or her case is similarly lawfully present. Indeed, the Human Rights Committee has affirmed its position on the meaning of “lawful presence,” expressly citing its findings in Celepli as authority for the proposition that [t]he question whether an alien is “lawfully” within the territory of a State is a matter governed by domestic law, which may subject the entry of an alien to the territory of a State to restrictions, provided they are in compliance with the State’s international obligations. In that connection, the Committee has held that an alien who entered the State illegally, but whose status has been regularized, must be considered to be lawfully within the territory [emphasis added].167

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Civil and Political Covenant, at Art. 12(1). Celepli v. Sweden, HRC Comm. No. 456/1991, UN Doc. CCPR/C/51/D/456/1991, decided Mar. 19, 1993. Ibid. at [9.2]. This approach was affirmed in Karker v. France, HRC Comm. No. 833/1998, UN Doc. CCPR/C/70/D/833/1998, decided Oct. 26, 2000, at [9.2], involving a Tunisian refugee suspected of terrorism and confined by French authorities when deemed nondeportable. UN Human Rights Committee, “General Comment No. 27: Freedom of Movement” (1999), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [4].

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This analysis blends neatly with the understanding of the Refugee Convention set out above.168 A rejected refugee claimant whom the state has decided not to remove on humanitarian grounds is, in the view of the Human Rights Committee, a person whose status has “been regularized” and hence one who must be considered to be – at least for the duration of that permission to remain – “lawfully present.” This conclusion makes sense because such a person, like a person seeking recognition of his or her refugee status, has satisfied the administrative requirements established by the state to determine which non-citizens should be allowed to remain on a provisional basis in its territory. It makes clear that lawful presence is an intermediate category that occupies the ground between illegal presence on the one hand, and a right to stay on the other. In addition to authorized short-term presence and presence while undergoing refugee status verification, the Refugee Convention foresees a third form of lawful presence. In many asylum countries, particularly in the less developed world, there is no mechanism in place to assess the refugee status of persons who arrive to seek protection.169 Even states with formal systems may on occasion opt to suspend status determination procedures for some or all asylum-seekers, who are thereupon assigned to an alternative (formal or informal) protection regime.170 In either of these situations – including where governments divert refugees into so-called “temporary protection” regimes171 – a refugee’s presence should be deemed lawful.172 This is because 168

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See text at note 123 ff. The Court of Justice of the European Union has notably determined that the withdrawal or non-recognition of refugee status under regional law operates without prejudice to entitlements under the Refugee Convention. If such a person is “authorized, on another legal basis, to stay lawfully in the territory of the member state concerned . . . article 14(6) of [the Qualification Directive] in no way prevents that member state from guaranteeing that the person concerned is entitled to all the rights which the Geneva Convention attaches to ‘being a refugee’”: M v. Czech Republic, X and X v. Belgium, Dec. Nos. C-391/16, C-77/17, and C-78/17 (CJEU, May 14, 2019), at [106]. See e.g. Lawyers’ Committee for Human Rights, African Exodus: Refugee Crisis, Human Rights and the 1969 OAU Convention (1995), at 29–30. For example, the temporary protection policies adopted by some European states in response to the arrival of refugees from Bosnia–Herzegovina actually diverted asylumseekers away from formal processes to adjudicate refugee status, or at least suspended assessment of status for a substantial period of time: Intergovernmental Consultations on Asylum, Refugee and Migration Policies in Europe, North America and Australia, Report on Temporary Protection in States in Europe, North America and Australia (1995), at 79, 118. Kälin writes that “lawful presence” “refers to presence authorized by law which . . . may be of a temporary nature. Thus, these provisions may be invoked by those among the temporarily protected who are Convention refugees”: W. Kälin, “Temporary Protection in the EC: Refugee Law, Human Rights, and the Temptations of Pragmatism,” (2001) 44 German Yearbook of International Law 221 (Kälin, “Temporary Protection”), at 221. “Generally, an alien is considered to be ‘lawfully’ in a territory if he possesses proper documentation . . . has observed the frontier control formalities, and has not overstayed

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the decision not to authenticate refugee status, whether generally or as an exceptional measure, must be considered in the context of the government’s legal duty to grant Convention rights to all persons in its territory who are in fact refugees, whether or not their status has been assessed.173 The Supreme Court of Papua New Guinea therefore sensibly determined that refugees brought to that country against their will by Australian officials were “lawfully in PNG by reason of the exemption granted by the Minister,”174 the absence of formal status determination notwithstanding. This third variant of “lawful presence” follows from the prima facie legal right of individuals seeking protection to present themselves in the territory of a state which has chosen to adhere to the Refugee Convention. By choosing to become a party to the Convention, a state party signals its preparedness to grant rights to refugees who reach its jurisdiction. A state that wishes to protect itself against the possibility of receiving non-genuine claims is free to establish a procedure to verify the refugee status of those who seek its protection. But if a state opts not to adjudicate the status of persons who claim to be Convention refugees, it must be taken to have acquiesced in the asylum-seekers’ assertion of entitlement to refugee rights, and must immediately grant them those Convention rights defined by the first three levels of attachment.175 This is

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the period for which he has been allowed to stay by operation of law or by virtue of ‘landing conditions.’ He may also be ‘lawfully’ in the territory even if he does not fulfil all the said requirements, provided that the territorial authorities have dispensed with any or all of them and allowed him to stay in the territory anyway [emphasis added]”: GrahlMadsen, Status of Refugees II, at 357. UNHCR has adopted the view that “[u]nder international refugee law, both refugees and asylum-seekers, in respect of the latter this includes those who are registered as asylum-seekers as well as those who have announced their intention to seek asylum but who have yet to be registered officially because of, for example, administrative delays, are considered ‘lawfully in’ the territory for the purposes of benefitting from [Art. 26] [emphasis added]”: UNHCR, “Amicus Brief, Kituo Cha Sheria v. Attorney-General, High Court of Kenya, July 27, 2013,” at [7.2]. The critical point is that refugee status determination is merely a declaratory, not a constitutive, process. Convention rights inhere in a person who is in fact a Convention refugee, whether or not any government has recognized that status: see Chapter 3.1 at note 28 ff. Belden Norman Namah v. Minister for Foreign Affairs and Immigration, Dec. No. SC1497 (PNG SCJ, Apr. 26, 2016), at [58]. The Court also noted “that the asylum seekers were brought into PNG against their will but otherwise have entered and remain lawfully in the country”: ibid. at [69]. Indeed, it is arguable that “[i]f a refugee’s presence in the territory of a state party to the Convention is not unlawful, in that the state is aware, or should be aware, of the refugee’s presence and the state is unable or unwilling to remove the refugee, then the refugee’s presence may be regarded as lawful for the purposes of the Refugee Convention”: “The Michigan Guidelines on the Right to Work,” 31 Michigan Journal of International Law 293 (2010), at [7]. The argument in favor of seeing presence as lawful based on official tolerance or acquiescence would seem especially strong if the state is aware of the refugee’s presence and unwilling (rather than simply unable) to remove him or her.

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because while the Convention does not require states formally to determine refugee status,176 neither does it authorize governments to withhold rights from persons who are in fact refugees because status assessment has not taken place. A general or situation-specific decision by a state party not to verify refugee status therefore amounts to an implied authorization for Convention refugees to seek protection without the necessity of undergoing a formal examination of their claims. In such circumstances, lawful presence is presumptively coextensive with physical presence. Lawful presence can come to an end in a number of ways. For refugees resident in another state who were authorized to enter on a strictly temporary basis, lawful presence normally concludes with the refugee’s departure from the territory. The lawful presence of a sojourning refugee may also be terminated by the issuance of a deportation or other removal order177 issued under a procedure that meets the requirements of the Refugee Convention, in particular Art. 33. In the case of a refugee whose presence has been regularized by admission to a refugee status verification procedure, or who has sought protection in the territory of a state that operates no such mechanism, lawful presence terminates only if and when a final determination is made either not to recognize, or to revoke, protection in a particular case. A final decision that an individual does not qualify for refugee status, including a determination made under a fairly administered process to identify manifestly unfounded claims to refugee status,178 renders an unauthorized entrant’s continued presence unlawful, and results in the forfeiture of all Convention rights provisionally guaranteed during the status assessment process.179 Similarly, a determination that an individual has ceased to be a refugee on the grounds set out in Art. 1(C) of the Convention eliminates the legal basis for the former refugee’s presence in the state.180 In addition to rights that apply once a refugee is lawfully present, two Convention rights – to enjoy protection of intellectual property rights181 and to benefit from assistance to access the courts182 – are reserved for refugees who are “habitually resident” in an asylum state. This is a standard borrowed 176

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The decision on whether or not to establish such a system is within the discretion of each state party: UNHCR, Handbook, at [189]. “The expression ‘lawfully within their territory’ throughout this draft convention would exclude a refugee who, while lawfully admitted, has over-stayed the period for which he was admitted or was authorized to stay or who has violated any other condition attached to his admission or stay”: “Report of the Ad Hoc Committee on Statelessness and Related Problems,” UN Doc. E/1618, Feb. 17, 1950, at Annex II (Art. 10). See Chapter 3.1 at note 38. 179 Ibid. See generally Grahl-Madsen, Status of Refugees I, at 367–412; Hathaway and Foster, Refugee Status, at 462–499; and Goodwin-Gill and McAdam, Refugee in International Law, at 135–149. Refugee Convention, at Art. 14. 182 Ibid. at Art. 16(2).

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from private international law,183 the meaning of which is both fungible and evolving.184 It identifies an individual’s “home” on a basis that has traditionally been thought to be less demanding than common law notions of domicile,185 drawing on a broad-ranging factual inquiry into the identification of an individual’s center of interests.186 Simply put, it seeks to identify the state to which an individual “has ‘the most real connexion.’”187 This standard might be thought both more and less demanding than the notion of “lawful presence.” On the one hand, while “residence” (“résidence”) is based on a factual inquiry to identify the place which is the center of one’s interests,188 the qualifier “habitual” may be said to require “residence of some standing or duration”189 – thus opening the door to a subjective assessment that could delay the acquisition of rights. On the other hand, Metzger is correct to insist that residence can in principle be habitual without also being lawful190 – meaning that rights might be acquired earlier than under the lawful presence benchmark. But neither tendency is common. Belgian law, for example, defines habitual residence as “the place where a natural person has established his main residence”191 without insisting upon any particular duration of presence. And while not dispositive, it is 183

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The notion of “habitual residence” dates back to at least the 1896 Hague Convention on Civil Procedure, adopted Nov. 14, 1896, entered into force Apr. 27, 1899, 88 British & Foreign State Papers 555. The concept is thought first to have emerged in bilateral treaties of the 1880s: P. Beaumont and P. McEleavy, The Hague Convention on International Child Abduction (1999), at 88. “Apart from being acceptable to lawyers of both the common law and civil law traditions, the strength of habitual residence lies in its flexibility, a characteristic particularly valued in the regulation of jurisdiction”: L. Collins, Dicey and Morris on the Conflict of Laws (2019), at 199. Given developments in the common law notion of “domicile” this may no longer be true. See Chapter 3.2.4 at note 362. The habitual residence inquiry is retrospective and oriented to the identification of objective indicators that suggest “the place where the person has established, on a fixed basis, his permanent or habitual centre of interests, with all relevant facts being taken into account for the purpose of determining such residence”: Explanatory Report to the Brussels II Convention, OJ 1998 C221/27. As the New Zealand refugee tribunal has opined, “the question of whether habitual residence [has] been established is a question of fact to be determined on the circumstances of each case, but the individual should be able to show that he or she has made it the centre of his or her interests”: Refugee Appeal No. 72635/01 (NZ RSAA, Sept. 6, 2002), at [116]. Law Reform Commission of Ireland, “Domicile and Habitual Residence as Connecting Factors in the Conflict of Laws” (1981), at [21]. See note 186. 189 Grahl-Madsen, Status of Refugees I, at 160. A. Metzger, “Article 14,” in A. Zimmermann ed., The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary 895 (2011) (Metzger, “Article 14”), at 905. Belgium, Private International Law Code (July 16, 2004) (unofficial translation), at Art. 4.2.1.

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generally agreed that illegality of presence is a strong proxy against a finding of habitual residence.192 In practice, then, the standards of lawful presence and habitual residence converge to a very significant extent, with both concepts requiring more than simple physical presence and neither being dependent on the formal recognition of refugee status. As such, and despite their different points of emphasis, both lawful presence and habitual residence define a middle ground between simply having arrived in an asylum country and having been formally authorized to stay there on an ongoing basis.

3.1.4 Lawful Stay Those refugees who are not simply lawfully or habitually present in a country’s territory, but who are lawfully staying there, benefit from additional rights: freedom of association, the right to engage in wage-earning employment and to practice a profession, access to public housing and welfare, protection of labor and social security legislation, and entitlement to travel documentation.193 There was extraordinary linguistic confusion in deciding how best to label this fourth level of attachment.194 The term “lawfully staying” was ultimately incorporated in the Convention as the

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B. Rentsch, Der gewöhnliche Aufenthalt im System des Europäischen Kollisionsrechts (2017) (Rentsch, Der gewöhnliche Aufenthalt) (noting that while illegality does not preclude the establishment of habitual residence, it is treated in most European states as a strong proxy against it). For example, the Austrian Asylum Board has taken the view that only authorized presence can be habitual residence: SW v. Federal Authority, Dec. No. 201.440/0-II/04/98 (Au. UBAS, Mar. 20, 1998). Only a modestly more liberal position was taken in Germany, finding that illegal presence could be deemed habitual residence because authorities had initiated no measures to terminate the illegal presence, thus acquiescing in the continued presence: Dec. No. 10 C 50.07 (Ger. FAC, Feb. 26, 2009). It thus overstates the position to argue that “the lawful presence or staying of the refugee is without significance for the application of Art. 14. Intellectual property protection is granted both to legal and illegal refugees”: Metzger, “Article 14,” at 905. Refugee Convention, at Arts. 15 (“right of association”), 17 (“wage-earning employment”), 19 (“liberal professions”), 21 (“housing”), 23 (“public relief”), 24 (“labour legislation and social security”), and 28 (“travel documents”). In specific circumstances, the benefit of Arts. 7(2) (“exemption from reciprocity”) and 17(2) (exemption from restrictive measures imposed on aliens in the context of “wage-earning employment”) may also be claimed: see Chapters 3.2.2 and 6.1.1. “The Chairman emphasized that the Committee was not writing Anglo-American law or French law, but international law in two languages. The trouble was that both the Englishspeaking and the French-speaking groups were trying to produce drafts which would automatically accord with their respective legal systems and accepted legal terminology”: Statement of the Chairman, Mr. Larsen of Denmark, UN Doc. E/AC.32/SR.42, Aug. 24, 1950, at 25.

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most accurate rendering of the French language concept of “résidant régulièrement,” the meaning of which was agreed to be controlling.195 Most fundamentally, “résidence régulière” is not synonymous with such legal notions as domicile or permanent resident status.196 Instead, the drafters emphasized that it was the refugee’s de facto circumstances which determine whether or not the fourth level of attachment is satisfied.197 The notion of “résidence régulière” is “very wide in meaning . . . [and] implie[s] a settling down and, consequently, a certain length of residence.”198 While neither a prolonged stay199 195

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“The Committee experienced some difficulty with the phrases ‘lawfully in the territory’ in English and ‘résidant régulièrement’ in French. It decided however that the latter phrase in French should be rendered in English by ‘lawfully staying in the territory”’: “Report of the Style Committee,” UN Doc. A/CONF.2/102, July 24, 1951. The same conclusion is reached by M. Teichmann, “Article 15,” in A. Zimmermann ed., The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary 909 (2011), at 923; and A. Edwards, “Article 19,” in A. Zimmermann ed., The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary 983 (2011), at 963–964 (“The term ‘lawfully staying’ is based on a translation of the French term ‘résidant régulièrement’”). “He could not accept ‘résidant régulièrement’ if it was to be translated by ‘lawfully resident,’ which would not cover persons who were not legally resident in the English sense. It would not, for example, cover persons staying in the United States on a visitor’s visa, and perhaps it might not even cover persons who had worked for the United Nations for five years in Geneva. The word ‘residence’ in English, though not exactly equivalent to ‘domicile,’ since it was possible to have more than one residence, had much of the same flavour”: Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.42, Aug. 24, 1950, at 24. But see the contrary interpretation of the Canadian government implicit in its reservation to the Refugee Convention, https://treaties.un.org/, accessed Feb. 1, 2020: “Canada interprets the phrase ‘lawfully staying’ as referring only to refugees admitted for permanent residence; refugees admitted for temporary residence will be accorded the same treatment with respect to the matters dealt with in Articles 23 and 24 as is accorded visitors generally.” “[T]here were two alternatives: either to say ‘résidant régulièrement’ and ‘lawfully resident,’ or to say ‘lawfully’ in which case ‘résidant’ must be omitted, otherwise, there would be too many complications in the translation of the various articles . . . [I]t would be better to say ‘régulièrement,’ since ‘légalement’ seemed too decidedly legal”: Statement of Mr. Juvigny of France, UN Doc. E/AC.32/SR.42, Aug. 24, 1950, at 33–34. In the context of a judgment interpreting the distinct, but related, notion of “habitual residence,” the House of Lords insisted upon comparable flexibility and sensitivity to specific facts. “It is a question of fact . . . Bringing possessions, doing everything necessary to establish residence before coming, having a right of abode, seeking to bring family, ‘durable ties’ with the country of residence or intended residence, and many other facts have to be taken into account. The requisite period is not a fixed period. It may be longer where there are doubts. It may be short”: Nessa v. Chief Adjudication Officer, Times Law Rep, Oct. 27, 1999 (UK HL, Oct. 21, 1999). Statement of Mr. Juvigny of France, UN Doc. E/AC.32/SR.42, Aug. 24, 1950, at 12. “[T]he expression ‘résidant régulièrement’ did not imply a lengthy stay, otherwise the expression ‘résidence continue’ . . . would have been employed”: Statement of Mr. Juvigny of France, UN Doc. E/AC.32/SR.41, Aug. 23, 1950, at 17.

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nor the establishment of habitual residence200 is required, the refugee’s presence in the state party must be ongoing in practical terms.201 The most straightforward example of lawful stay is, of course, ongoing presence consequent to the formal recognition of refugee status. Once a state has formally verified refugee status, there is no basis to question the continuing right of the refugee to live in that country for the duration of risk in his or her country of origin.202 Second, refugees in receipt of “temporary protection” who have become de facto settled in the host state203 are to be considered to be “résidant régulièrement”: [I]n all those articles the only concrete cases that could arise were cases implying some degree of residence, if only temporary residence; and temporary residence would be covered by the present wording, at least as far as France was concerned . . . That was why he also considered, for reasons of principle, that having abandoned the idea of “résidence habituelle,” and accepted the concept of “résidence régulière,” the French delegation had conceded as much as it could.204

Indeed, the British representative, in attempting to translate the French concept to English, proposed the phrase “lawfully resident (temporarily or otherwise).”205 The American representative, however, argued that any English language formulation that included the word “resident” would fail accurately to capture the broad meaning conveyed by the French understanding of “résidant.” In English, he suggested, the word “resident” would not 200

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“In the articles in question, the term used in the French text had been ‘résidence habituelle’ which implied some considerable length of residence. As a concession, the French delegation had agreed to substitute the words ‘résidence régulière’ which were far less restrictive in meaning”: Statement of Mr. Juvigny of France, UN Doc. E/AC.32/SR.42, Aug. 24, 1950, at 12. The French representative suggested that the refugee’s presence would have to be “more or less permanent” to satisfy the third level of attachment: Statement of Mr. Juvigny of France, ibid. Goodwin-Gill and McAdam, Refugee in International Law, at 526; Edwards, “Article 17,” at 964. While it is suggested by some that UNHCR recognition of status similarly renders a refugee “lawfully staying” in a state party (see e.g. “The Michigan Guidelines on the Right to Work,” 31 Michigan Journal of International Law 293 (2010), at [8]), this would only be true if the state in which the refugee is present has consented formally or in practice to recognize such decisions by the UNHCR. “[T]hese guarantees [can] be invoked by the Convention refugees who are among the temporarily protected persons only after a certain period when it becomes clear that return is not imminent and that the country of refuge has become ‘home’ for the persons concerned, at least for the time being”: Kälin, “Temporary Protection,” at 222. See also S. Leckie and E. Simperingham, “Article 21,” in A. Zimmermann ed., The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary 1003 (2011), at 1015. Statement of Mr. Juvigny of France, UN Doc. E/AC.32/SR.42, Aug. 24, 1950, at 15. Statement of Sir Leslie Brass of the United Kingdom, ibid. at 29.

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encompass a temporary stay.206 It was therefore important to draft an English language text that would not be open to misinterpretation, for example, by denying rights to refugees staying “for a number of months.”207 The result of the Ad Hoc Committee’s deliberations was therefore a decision to translate “résidant régulièrement” into English as “lawfully living in their territory.”208 The Conference of Plenipotentiaries maintained the French language formulation of the fourth level of attachment as “résidant régulièrement,” but reframed it in English as “lawfully staying in their territory.”209 This minor terminological shift brought the English language phrasing even more closely into line with the broadly inclusive meaning of “résidant régulièrement.” In any event, the Conference resolved any linguistic ambiguity once and for all by explicitly agreeing that the French concept of “résidant régulièrement” is to be regarded as the authoritative definition of the fourth level of attachment,210 thus clearly including any refugee in receipt of temporary protection. Third, a refugee is lawfully staying if allowed to remain on a de facto ongoing basis in a country that does not operate a formal refugee status determination 206

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“[I]n the light of the exposition given by the representative of France there might prove to be a distinction of substance between the English and French texts . . . It appeared that ‘résidant régulièrement’ covered persons temporarily resident, except for a very short period, whereas according to English law he understood the word ‘resident’ could not apply to a temporary stay”: Statement of Mr. Henkin of the United States, ibid. at 14. It was for this reason that the American representative objected to the British proposal, ibid. at 29, which he referred to as “a contradiction in terms”: Statement of Mr. Henkin of the United States, ibid. at 29. “[H]e did not understand the exact connotation of the French word ‘résidant,’ but apparently it could be applied to persons who did not make their home in a certain place but stayed there for a number of months. Such persons would apparently be ‘résidant régulièrement’ but they would not, in the United States of America at least, be lawfully resident. To be lawfully resident in a place, a man must make his home there; it need not be his only home but it must be a substantial home”: Statement of Mr. Henkin of the United States, ibid. at 26. “The English text referred to refugees ‘lawfully in the territory’ while the French referred to a refugee ‘régulièrement résidant,’ the literal English equivalent of the latter phrase having a more restrictive application. Re-examining the individual articles, it was decided in most instances that the provision in question should apply to all refugees whose presence in the territory was lawful . . . In one case [the right to engage in wage-earning employment] the Committee agreed that the provision should apply only to a refugee ‘régulièrement résidant’ on the territory of a Contracting State. The English text adopted is intended to approximate as closely as possible the scope of the French term”: “Report of the Ad Hoc Committee on Refugees and Stateless Persons, Second Session,” UN Doc. E/1850, Aug. 25, 1950 (Ad Hoc Committee, “Second Session Report”), at 12. “Report of the Style Committee,” UN Doc. A/CONF.2/102, July 24, 1951. Ibid. at [5]. See also Grahl-Madsen, Status of Refugees II, at 351–352: “Against this background it seems justified to give precedence to the French term and not to ponder too much over the difference between the expressions ‘lawfully staying’ and ‘lawfully resident’ . . . Both expressions apparently mean the same thing.”

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system.211 It may, of course, be difficult in practical terms to pinpoint the precise moment when provisional presence becomes ongoing if there are no formal declarations of status.212 One approach, proposed by Grahl-Madsen, is to see a refugee as lawfully staying when, after reporting to authorities, he or she is permitted to remain beyond the maximum timeframe set by law for visa-free stay.213 Such an understanding is consistent with the basic structure of the Refugee Convention, which does not require states formally to adjudicate status or assign any particular immigration status to refugees,214 and which is content to encourage, rather than to require, access to naturalization or other forms of permanent status.215 In sum, the fourth level of attachment set by the Refugee Convention requires officially sanctioned, ongoing presence in a state party, whether or not there has been a formal declaration of refugee status, grant of the right of permanent residence, or establishment of domicile there.216

3.1.5 Durable Residence A specific test of durable residence – three years’ residence – governs eligibility for exemption from both requirements of legislative reciprocity217 and any 211

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“Fulfilment of the requirement ‘lawfully staying’ does not depend on formal recognition of refugee status”: J. Vedsted-Hansen, “Article 28,” in A. Zimmermann ed., The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary 1177 (2011), at 1204. Indeed, it might logically be contended that a refugee is lawfully staying where there has been a prolonged delay in reaching a decision on refugee status. The logic of the acquisition of the rights associated with lawful stay in such circumstances is clear from the decision of the Supreme Court of Ireland – in the case of an asylum-seeker whose claim had been pending for more than eight years – that “in the circumstances where there is no temporal limit on the asylum process, then the absolute prohibition on seeking of employment . . . is contrary to the constitutional right to seek employment”: NVH v. Minister for Justice and Equality, [2017] IESC 35 (Ir. SC, May 30, 2017), at [20]–[21]. Goodwin-Gill and McAdam suggest that as a practical matter, “evidence of permanent, indefinite, unrestricted or other residence status, recognition as a refugee, issue of a travel document, or grant of a re-entry visa, will raise a strong presumption that the refugee should be considered as lawfully staying in the territory of a contracting State. It would then fall to that State to rebut the presumption by showing, for example, that the refugee was admitted for a limited time and purpose, or that he or she is in fact the responsibility of another State”: Goodwin-Gill and McAdam, Refugee in International Law, at 526. In an era when “three months seem[ed] to be almost universally accepted as the period for which an alien may remain in a country without needing a residence permit,” GrahlMadsen suggested “if he is in possession of a residence permit (or its equivalent) entitling him to remain there for more than three months, or if he actually is lawfully present in a territory beyond a period of three months after his entry (or after his reporting himself to the authorities, as the case may be)”: Grahl-Madsen, Status of Refugees II, at 353–354. See Chapter 3.1.3 at note 173. Refugee Convention, at Art. 34. See generally Chapter 7.4. This framing is endorsed in Edwards, “Article 17,” at 964. Refugee Convention, at Art. 7(2).

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restrictive measures imposed on the employment of aliens.218 In calculating the three years, it is important to recall that the drafters defined “résidence” broadly, and did not equate it with such legal notions as domicile or permanent resident status.219 But even this broad understanding of residence was understood to require officially sanctioned, ongoing presence in the state party.220 It is therefore doubtful that a period of residence should be calculated to include periods of illegal presence.221 It is, on the other hand, reasonable to take the view that “[s]hort absences from the contracting State of residence do not interrupt the [residence] period.”222 Refugee Convention, Art. 10 Continuity of Residence 1. Where a refugee has been forcibly displaced during the Second World War and removed to the territory of a Contracting State, and is resident there, the period of such enforced sojourn shall be considered to have been lawful residence within that territory. 2. Where a refugee has been forcibly displaced during the Second World War from the territory of a Contracting State and has, prior to the date of entry into force of this Convention, returned there for the purpose of taking up residence, the period of residence before and after such enforced displacement shall be regarded as one uninterrupted period for any purposes for which uninterrupted residence is required. In line with their focus on factual continuity of residence rather than formalism, the drafters made specific provision to accommodate the predicament of persons forcibly deported during the Second World War. Those refugees who elected to remain in the territory of the state to which they had been deported would be considered to have been resident in that country during the period of enforced presence.223 Even though the state to which deportation had been effected may not have legally consented to their entry, 218

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Ibid. at Art. 17(2)(a). An earlier exemption from alien employment restrictions is required in the case of a refugee who was already exempt from such requirements at the time the Convention entered into force for the state party; or where the refugee is married to, or the parent of, a national of the state party: ibid. at Art. 17(2). See Chapter 3.1.4, note 207. 220 Ibid. at note 127. But see A. Skordas, “Article 7,” in A. Zimmermann ed., The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary 715 (2011) (Skordas, “Article 7”), at 750 (“The three-year period begins from the moment at which the refugee finds him- or herself in the host country, even if he or she has entered illegally”). Even the more arguable claim of Edwards – that “residence” begins with the lodging of an asylum application (see Edwards, “Article 17,” at 969) – is not self-evidently correct since the drafters viewed the satisfaction of requirements to have access to status verification as giving rise to lawful “presence,” not lawful “stay” (“résidence” in the French text): see Chapter 3.1.3 at notes 129–130. It is less clear that illegal presence is necessarily to be excluded from the notion of habitual residence: see note 192. Skordas, “Article 7,” at 750. 223 Refugee Convention, at Art. 10(1).

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the focus on de facto residence led to an agreement that “the country to which a person had been deported would accept the period spent there as a period of regular residence.”224 Recognizing that other refugees would prefer to have the time spent in enforced sojourn abroad credited toward the calculation of their period of residence in the state from which they had been removed, the drafters agreed that a victim of deportation225 could elect to be treated as continually resident in the country from which the deportation was effected.226 Even though such a refugee had not actually been resident in the contracting state during the time he or she was subject to deportation, “[t]he authors of the Convention sought to mitigate the results of interruption of residence not due to the free will of the refugee, and to provide a remedy for a stay without animus and without permission, which are usually required to transform one’s ‘being’ in a certain place into ‘residence.”’227 The resultant Art. 10 of the Convention is today only of hortatory value,228 as it formally governs only the treatment of Second World War deportees.229 Nonetheless, the debates on Art. 10 make clear that the calculation of a period of residence should in principle be carried out with due regard to the particular disabilities faced by refugees.230 In keeping with the spirit of Art. 10 of the Convention, this suggests that the period of residence be calculated to include either a period of enforced presence in the state party, or the time during which continuous residence was interrupted by forces beyond the refugee’s control.231 224

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Statement of the Chairman, Mr. Chance of Canada, UN Doc. E/AC.32/SR.22, Feb. 2, 1950, at 7. “It presumably was not intended to refer to persons displaced by the Government of the country on account of their suspicious or criminal activities, but only to persons forcibly displaced by enemy or occupying authorities”: Statement of Mr. Perez Perozo of Venezuela, UN Doc. E/AC.32/SR.35, Aug. 15, 1950, at 12. Refugee Convention, at Art. 10(2). 227 Robinson, History, at 96. The restrictive language was adopted notwithstanding a plea to extend the benefit of Art. 10 to all refugees. “[I]t was an important matter . . . to be credited, as constituting residence, with the time spent . . . in enforced displacement, or with the period before or after such displacement, in cases where the refugee had returned to his receiving country to re-establish his residence there. The latter provision was all the more useful in view of the fact that, under certain national legislation, the period of residence normally had to be extended if residence was interrupted. Nevertheless, the provisions of article [10(2)] merely remedied an occasional situation caused by the second world war, without providing any [general] solution”: Statement of Mr. Rollin of the Inter-Parliamentary Union, UN Doc. A/CONF.2/SR.10, July 6, 1951, at 7. The article was arguably obsolete even at the time the Refugee Convention came into force, as nearly a decade had elapsed since the end of the Second World War and few, if any, rights were conditioned on continuous residence of more than five years. See Chapter 3.2.3 at note 310 ff. Skordas argues that time spent in a country of first arrival pending assignment to another country for status verification should be included in the period of residence: Skordas, “Article 7,” at 750. While he forthrightly acknowledges that this is an entirely “teleological

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In sum, the general language of the five levels of attachment facilitates application of the Refugee Convention across the full range of states, despite their often widely divergent approaches to the legal reception of refugees. It moreover allows governments a reasonable measure of flexibility in deciding for themselves how best to operationalize refugee law within their jurisdictions. Yet because access to most rights is defined by practical circumstances rather than by any official decision or status, the Refugee Convention prevents states from invoking their own legalistic categories as the grounds for withholding rights from refugees. Some rights apply simply once a state has jurisdiction over a refugee; others by virtue of physical presence in a state’s territory, even if illegal; a third set when that presence is either officially sanctioned or tolerated; further rights accrue once the refugee has established more than a transient or interim presence in the asylum state; and even the most demanding level of attachment requires only a period of de facto continuous and legally sanctioned residence. In no case may refugee rights be legally denied or withheld simply because of the delay or failure of a state party to process a claim, assign a status, or issue a confirmation of entitlement.

3.2 The General Standard of Treatment Once the rights to which a particular refugee is entitled have been identified on the basis of the level of attachment test outlined above,232 the next step is to define the required standard of treatment. Many rights in the Convention are expressly defined to require implementation on the basis of either a contingent or an absolute standard of achievement. These are referred to here as “exceptional standards of treatment,” the interpretation of which is addressed below.233 Absent express provision of this kind, however, refugees are to be treated at least as well as “aliens generally.”234 This baseline or residual standard235 defines the substantive standard of compliance with

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interpretation [that would enable refugees] . . . to add the time they spent in different countries”: ibid., such an approach would be an interruption of presence beyond the refugee’s control and hence consonant with the spirit of Art. 10. As Schmahl observes, “Art. 10, para. 2 wants to mitigate the results of an interruption of residence not due to the free will of the refugee”: S. Schmahl, “Article 10,” in A. Zimmermann ed., The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary 805 (2011), at 813. See Chapter 3.1. 233 See Chapter 3.3. 234 Refugee Convention, at Art. 7(1). Objection has been taken to referring to this as the Convention’s “minimum” standard on the grounds that contemporary extrinsic norms applicable to aliens generally may at times require more robust protection than cognate provisions of the Convention: see Skordas, “Article 7,” at 719, 733. While this is of course sometimes true (see Chapter 1.4.5), it

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Convention duties that are not framed to require an exceptional standard of treatment.236 Refugee Convention, Art. 7(1) Except where this Convention contains more favourable provisions, a Contracting State shall accord to refugees the same treatment as is accorded to aliens generally. Art. 7(1) is not a purely endogenous provision; rather, like Art. 5,237 it is an important means of ensuring that refugees secure the benefit of whatever exogenous rights or benefits are “accorded to aliens generally.” At the time of the Convention’s drafting – before the advent of modern human rights law238 – the body of international law most obviously available to “aliens generally” was international aliens law. This assimilation of refugees to “aliens generally” under international aliens law would, however, provide little assurance of meaningful protection. This is because the primary responsibility to protect the interests of aliens is attributed to their state of nationality, which is expected to engage in diplomatic intervention to secure respect for the human rights of its citizens abroad.239 International aliens law was conceived very much within the traditional contours of international law: the rights created are the rights of national states, enforced at their discretion under the rules of diplomatic protection and international arbitration. While injured aliens might benefit indirectly from the assertion of claims by their national states, they can neither require action to be taken to vindicate their loss, nor even compel their state to share with them whatever damages are recovered in the event of a successful claim.240 As weak as aliens law was as a source of rights in general, it was worse still for refugees. Because refugees are by definition persons whose country of nationality either cannot or will not protect them, traditional aliens law –

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remains that Art. 7 does set the residual minimum standard for the treatment of refugees, albeit not necessarily a minimal standard. See Chapter 3.2.1. 237 See Chapter 1.4.5. 238 See Chapter 1.5.4. See Chapter 1.1 at note 12. The International Law Commission has recommended that in addition to the state of nationality, an asylum state also be allowed to exercise diplomatic protection in relation to “recognized” refugees who are “lawfully and habitually resident”: International Law Commission, “Draft Articles on Diplomatic Protection,” UN Doc. A/ 61/10 (2006), at Art. 8. Critically, however, diplomatic protection may not be exercised in respect of “an injury caused by an internationally wrongful act of the State of nationality of the refugee”: ibid. at Art. 8(3). And since the asylum state cannot of course seek a remedy against itself, the two states most likely in practice to infringe a refugee’s rights – the state of origin and the state of refuge – remain beyond the reach of aliens law. “The fate of the individual is worse than secondary in this scheme: it is doctrinally nonexistent, because the individual, in the eyes of traditional international law, like the alien of the Greek city-State regime, is a non-person”: R. Lillich, The Human Rights of Aliens in Contemporary International Law (1984) (Lillich, Rights of Aliens), at 12.

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with protection entirely in the hands of one’s own state – could be expected to provide them with few benefits.241 For this reason, an essential aspect of international refugee protection has always been to provide surrogate international protection under the auspices of an international agency – presently UNHCR – which is to undertake the equivalent of diplomatic intervention on behalf of refugees.242 Aware of the weaknesses of international aliens law as a source of refugee rights, Art. 7(1) of the Convention is broadly framed to incorporate by reference all general sources of rights for non-citizens.243 Urged by the American delegate to ensure that the general standard “should cover all rights to be granted to refugees and not only those which were actually specified in the draft convention,”244 the report of the First Session of the Ad Hoc Committee succinctly notes that “[t]he exemption from reciprocity relates not only to rights and benefits specifically covered by the draft convention, but also to such rights and benefits not explicitly mentioned in the draft Convention.”245 Simply put, refugees cannot be excluded from any rights which the asylum state ordinarily grants to other foreigners.246 Thus, the general standard of Art. 241

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While no longer sustainable in view of the obligations assumed by adherence to the United Nations Charter and subsequent human rights accords, the classical predicament of persons without a nationality is nicely captured in L. Oppenheim, International Law: A Treatise (1912), at 369: “It is through the medium of their nationality only that individuals can enjoy benefits from the existence of the Law of Nations . . . Such individuals as do not possess any nationality enjoy no protection whatever, and if they are aggrieved by a State they have no way to redress, there being no State that would be competent to take their case in hand. As far as the Law of Nations is concerned, apart from morality, there is no restriction whatever to cause a State to abstain from maltreating to any extent such stateless individuals.” See Chapter 1.3 at note 24 ff. Skordas correctly observes that Art. 7 “links the 1951 Convention with external legal regimes”; “[t]hough it seems rather neglected, old-fashioned, and awkwardly worded, Art. 7 is an important provision of the 1951 Convention because it enables the co-evolution of the refugee regime with aliens law and international human rights law”: Skordas, “Article 7,” at 719, 753. Art. 5 of the Refugee Convention (see Chapter 1.4.5) similarly requires that “rights and benefits” granted to refugees apart from the Refugee Convention may not be impaired. Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.23, Feb. 3, 1950, at 4. “Report of the Ad Hoc Committee on Statelessness and Related Problems,” UN Doc. E/ 1618, Feb. 17, 1950 (Ad Hoc Committee, “First Session Report”), at Annex II. Even as the attitude of states toward the timing and scope of exemption from reciprocity hardened over the course of the drafting process, there was no weakening of this basic commitment to comprehensive application of the general standard of treatment: see Refugee Convention, at Art. 7(5) (“The provisions of paragraphs 2 and 3 apply both to the rights and benefits referred to in articles 13, 18, 19, 21, and 22 of this Convention and to rights and benefits for which this Convention does not provide [emphasis added]”). It has been suggested that some possible sources of rights for aliens in general, including in particular migration laws and treaties, are excluded from the ambit of Art. 7: Skordas, “Article 7,” at 737, 742–743. While such agreements cannot of course detract from the

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7(1) ensures that refugees may claim not only the narrow range of rights set by international aliens law,247 but also the benefit of any legal obligations (for example, those set by the Human Rights Covenants)248 which govern the treatment of aliens in general. Conversely, the drafters were clear that the residual standard in Art. 7(1) does not entitle a refugee to claim the benefit of agreements negotiated with special partner states,249 for example those united in an economic or customs union.250 Because exceptional rights of this kind do not ordinarily inhere in “aliens generally,” the baseline standard of treatment was understood to allow them to be withheld from refugees.251 The drafters, however, limited their

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rights otherwise available to refugees, neither is there any reason to deny refugees whatever benefits such laws and treaties might provide to aliens generally. See also Refugee Convention, at Art. 5. See Chapter 1.1 at notes 5–7. 248 See Chapter 1.5.4. See e.g. Statement of Mr. Cuvelier of Belgium, UN Doc. E/AC.32/SR.10, Jan. 24, 1950, at 5; Statement of Mr. Larsen of Denmark, ibid.; and Statement of the International Refugee Organization, in United Nations, “Compilation of the Comments of Governments and Specialized Agencies on the Report of the Ad Hoc Committee on Statelessness and Related Problems,” UN Doc. E/AC.32/L.40, Aug. 10, 1950 (United Nations, “Compilation of Comments”), at 34–35: “The main reason why the Ad Hoc Committee decided to change the wording of the Article relating to reciprocity . . . was that it did not wish the Article to relate to treaty provisions conferring preferential treatment on aliens of a particular nationality. It is certain that since 1933 there has been a general development in the granting of preferential treatment to aliens of a particular nationality on the basis of customs, political and economic associations founded on geographical or historical connections. It may be held that some qualification should be made to the original formula concerning reciprocity, as included in the Conventions of 1933 and 1938, in order to overcome any misinterpretation which may lead to the belief that an article concerning the exemption from reciprocity might have as a consequence the legal entitlement for refugees to the benefits of preferential treatment.” “[C]ountries such as Belgium, which were linked to certain other countries by special economic and customs agreements, did not accord the same treatment to all foreigners. Belgium, for example, placed nationals of the Benelux countries for certain periods on a quasi-equal footing with Belgian citizens”: Statement of Mr. Cuvelier of Belgium, UN Doc. E/AC.32/SR.10, Jan. 24, 1950, at 5. Mr. Cuvelier subsequently repeated “that refugees could not benefit from reciprocal treatment in cases where the right or privilege in question was granted solely as a result of an international agreement between two countries”: Statement of Mr. Cuvelier of Belgium, UN Doc. E/AC.32/SR.23, Feb. 3, 1950, at 4. The Israeli delegate thereupon suggested, and the Committee agreed, that “that interpretation should be placed on the record”: Statement of Mr. Robinson of Israel, ibid. As helpfully clarified by the British delegate, refugees cannot automatically claim the benefit of “a special treaty between two countries”: Statement of Sir Leslie Brass of the United Kingdom, ibid. Thus it was agreed that “The Article will confer these rights on refugees; they would otherwise be prevented from having them in view of their lack of nationality. The Article is not intended to relate to rights specifically conferred by bilateral treaty and which are not intended to be enjoyed by aliens generally”: “Comments of the Committee on the Draft Convention,” UN Doc. E/AC.32/L.32/Add.1, Feb. 10, 1950, at 3. Special guarantees of reciprocal treatment, such as those negotiated by partner states in an economic or customs union, do not automatically accrue to refugees. The benefits of such

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discussion to the issue of truly special agreements benefitting the nationals of a small number of states.252 Despite an entreaty from the American representative, no consensus was reached on whether rights and benefits flowing from more broadly subscribed agreements could be similarly withheld from refugees.253 In principle, however, both the plain language and specificity of the concerns raised during the drafting process suggest that where the standards are not exceptional, but rather in practice define the rights of most non-citizens in a state, then these rights – as the dominant standard for non-citizens – accrue also to refugees under the “aliens generally” rule of Art. 7(1).254

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forms of diplomatic reciprocity are normally extended to refugees only where the Refugee Convention stipulates that refugees are to be treated either as “most-favored foreigners,” or on par with the nationals of the asylum state. “[A] distinction should be drawn between the clause relating to exemption from reciprocity and the provisions of some articles which specified whether refugees should be accorded the most favorable treatment or be subject to the ordinary law. Where such provisions were set forth in an article there was no need to invoke the clause on exemption from reciprocity. It was obvious, in fact, that where refugees were accorded the most favorable treatment there would be no point in invoking the clause respecting exemption from reciprocity . . . The paragraph on exemption from reciprocity would apply only where articles failed to define the treatment accorded to refugees”: Statement of Mr. Giraud of the Secretariat, UN Doc. E/AC.32/ SR.11, Jan. 25, 1950, at 6. See generally Chapter 3.3.1. For example, the French representative asked, “If the French Government and a small State concluded a treaty providing for certain rights to be granted to Frenchmen, and the same rights to be granted to nationals of that State in France, was the advantage granted to the citizens of a single country to be accorded by France to all refugees? . . . Was it when there was reciprocal treatment with one or two other States or when there was such treatment with a very large number of other States? . . . France was prepared to give refugees the treatment given to aliens generally, but did not intend to give better treatment to refugees than that given to the majority of aliens”: Statement of Mr. Juvigny of France, UN Doc. E/AC.32/SR.34, Aug. 14, 1950, at 11–12. “It was also necessary to cover cases where reciprocity treaties existed with many countries and were hence equivalent to legislative reciprocity. The representative of France had raised the question of how many such treaties must exist, whether 5 or 50. He could not himself suggest a draft but the Drafting Committee would have to, so long as it was clear what was desired”: Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/ SR.34, Aug. 14, 1950, at 16. In fact, the issue was resolved neither by the Drafting Committee, nor by any subsequent body that participated in the preparation of the Refugee Convention. Two commentators object to this plain meaning approach to the identification of the “aliens generally” benchmark (“the majority of aliens,” per the French representative: see note 252). Grahl-Madsen opines that “[i]t would have been more relevant to speak of ‘aliens belonging to the majority of states.’ It is entirely feasible that ‘the majority of aliens’ belong to a single foreign State with which a treaty of favourized treatment exists; in spite of their number those foreign nationals would not be ‘aliens generally’”: A. Grahl-Madsen, Commentary on the Refugee Convention 1951 (1963, pub’d. 1997) (Grahl-Madsen, Commentary), at 29. While this approach resonates with the question put by the American drafter (see note 253), it seems an odd standard. If, for example, there were aliens from thirty countries in a given state, and a particular right inhered in those from twenty of those countries but who made up collectively only 10 percent of the alien

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3.2.1 Assimilation to Aliens The second and more specific function of Art. 7(1) is to set the endogenous baseline standard of treatment for refugee rights codified in the Convention itself. Committed to not asking states to do more for refugees than what was reasonable, the baseline contingent standard set by Art. 7(1) requires only that a given Convention right be implemented to the extent it is generally extended to non-citizens in that country. In some cases this will afford refugees little – for example, if non-citizens are barred from owning property, then refugees may similarly be barred. But conversely if there is a general right of access to property by non-citizens – as evinced by, for example, relevant domestic laws or practices, a pervasive pattern of bilateral or multilateral agreements, or de facto enjoyment of the right by most aliens – then the baseline standard requires that refugee property rights be honored to the same extent. Indeed, even as the drafters recognized the importance of not conceiving the baseline standard in Art. 7(1) in a way that might ask too much of states, they showed a determination to encourage states not to be content with doing only the bare minimum required. Thus, all but one of the substantive Convention rights that require implementation only at the baseline “aliens generally” standard255 – rights to property, self-employment, professional practice, housing, and secondary and higher education – are actually phrased to require

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population, that right would, under Grahl-Madsen’s approach, be said to inhere in “aliens generally” – despite it being unavailable to 90 percent of non-citizens. This seems a proposition difficult to square with the plain meaning of “generally.” Conversely, Skordas has objected to the notion of a “numerical-quantitative element” of any kind, arguing instead that “[i]t is more appropriate to define the ‘generality’ of treatment on the basis of the scope of the relevant provisions ratione personae. The meaning of ‘general treatment’ is not in fact determined by the 1951 Convention itself, but by the legal instruments and norms themselves that are potentially applicable to aliens or refugees”: Skordas, “Article 7,” at 736. Not only does this seem to make the exogenous component of Art. 7(1) redundant in view of Art. 5 (if a given right is generally available to non-citizens ratione personae then it accrues to them, including refugees: see Chapter 1.4.5), but if this approach were adopted, refugees could easily be denied the benefit of rights available to most non-citizens. For example, in an EU state where other EU nationals make up the majority of the state’s non-citizen population, EU rights – specifically directed ratione personae only to EU nationals – would not accrue under the “aliens generally” standard. On the other hand, a quantitative approach to “aliens generally” would entitle refugees to treatment in line with that provided to the (quantitative) clear majority of non-citizens, that is the EU standard of treatment. The exception is the right to freedom of movement set by Art. 26, which requires only that refugees be allowed to “choose their place of residence and to move freely within [the state party’s] territory, subject to any regulations applicable to aliens generally in the same circumstances”: Refugee Convention, at Art. 26. While there is no textual requirement to grant refugees internal mobility rights on terms “as favorable as possible,” whatever constraints are to be imposed on freedom of movement must derive from “regulations,” not simply from the exercise of bureaucratic or other discretion or directive. See Chapter 5.2.

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“treatment as favourable as possible and, in any event, not less favourable than that accorded to aliens generally.”256 As the Belgian delegate insisted, this form of words requires more than simply adherence to the principle of nondiscrimination.257 Rather, the “treatment as favourable as possible” language requires a state party to give consideration in good faith to the non-application to refugees of limits generally applied to aliens.258 It was inspired by the hope that “refugees would be granted not the most favorable treatment, but a treatment more favorable than that given to foreigners generally.”259 The spirit of this responsibility is nicely captured by the comments of the British government that it would be prepared to “consider sympathetically the possibility of relaxing the conditions upon which refugees have been admitted.”260

3.2.2 Exemption from Reciprocity Refugee Convention, Art. 7 Exemption from Reciprocity ... 2. After a period of three years’ residence, all refugees shall enjoy exemption from legislative reciprocity in the territory of the Contracting States. 3. Each Contracting State shall continue to accord to refugees the rights and benefits to which they were already entitled, in the absence of reciprocity, at the date of entry into force of this Convention for that State. 4. The Contracting States shall consider favourably the possibility of according to refugees, in the absence of reciprocity, rights and benefits beyond those to which they are entitled according to paragraphs 2 and 3, and to extending exemption from reciprocity 256 257

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Refugee Convention, at Arts. 13, 18, 19, 21, and 22. The matter arose in the context of a French criticism that an American proposal to grant refugees “the most favorable treatment possible and, in any event, not less favorable than that given to foreigners generally as regards housing accommodations” was unnecessary in view of the duty of non-discrimination. In response, the Belgian delegate “pointed out that the United States text was not redundant, inasmuch as it required the High Contracting Parties not merely not to discriminate against refugees, but to ensure them ‘the most favorable treatment possible”’: Statement of Mr. Cuvelier of Belgium, UN Doc. E/AC.32/ SR.24, Feb. 3, 1950, at 13. The impermissibility of discrimination between refugees and other non-citizens is nonetheless clear: Skordas, “Article 7,” at 736. “[C]ontracting parties are . . . expected to initiate administrative procedures or studies for exploring the possibilities of according, or extending at least some additional rights and benefits to refugees, even if they are not legally obliged to do so”: Skordas, “Article 7,” at 752. Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.13, Jan. 26, 1950, at 14. Under this intermediate standard, a government should at least consider providing preferential treatment for refugees. See also Statement of Mr. Kural of Turkey, ibid. at 15. United Nations, “Compilation of Comments,” at 40.

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to refugees who do not fulfil the conditions provided for in paragraphs 2 and 3. 5. The provisions of paragraphs 2 and 3 apply both to the rights and benefits referred to in articles 13, 18, 19, 21 and 22 of this Convention and to rights and benefits for which this Convention does not provide. Under traditional notions of aliens law, the very existence of relevant rights for aliens can depend on the efforts of the refugee’s state of nationality.261 Each state was entitled to determine for itself whether any rights would be granted to noncitizens beyond the limited range of rights guaranteed to all aliens under general principles of law.262 While some countries routinely granted aliens most of the rights extended to their own citizens, many conditioned the rights of non-citizens on reciprocity: put simply, aliens would receive from a host state only such rights as their state of origin was prepared to grant in its territory to citizens of the host state. There is, of course, no reason to expect the states from which refugees flee to agree to reciprocity as a means of promoting the well-being of their citizens who seek refuge abroad. Before the advent of refugee law, the severing of the bond between refugees and their state of citizenship therefore often left refugees with no more than bare minimum rights in those states that grounded their treatment of foreigners in the existence of reciprocity. This dilemma led the League of Nations to stress the humanitarian tragedy that would ensue if refugees were subjected to the usual rules. The League also urged that there was 261

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“At the root of the idea of the juridical status of foreigners is the idea of reciprocity. The law considers a foreigner as a being in normal circumstances, that is to say, a foreigner in possession of a nationality. The requirement of reciprocity of treatment places the national of a foreign country in the same position as that in which his own country places foreigners”: United Nations, “Memorandum by the Secretary-General to the Ad Hoc Committee on Statelessness and Related Problems,” UN Doc. E/AC.32/2, Jan. 3, 1950 (Secretary-General, “Memorandum”), at 28. “Reciprocity refers to the interdependence of obligations assumed by participants within the legal schemes created by human rights law . . . In other words, obligations are reciprocal if their creation, execution and termination depend on the imposition of connected obligations on others. International law, being a system based on the formal equality and sovereignty of States, has arisen largely out of the exchange of reciprocal rights and duties between States”: R. Provost, “Reciprocity in Human Rights and Humanitarian Law,” (1994) 65 British Yearbook of International Law 383 (Provost, “Reciprocity”), at 383. These included recognition of the alien’s juridical personality, respect for life and physical integrity, and personal and spiritual liberty within socially bearable limits. Aliens were afforded no political rights, though resident aliens were subject to reasonable public duties. In the economic sphere, there was a duty of non-discrimination among categories of aliens allowed to engage in commercial activity. There was also an obligation to provide adequate compensation for denial of property rights where aliens were allowed to acquire private property. Finally, aliens were to be granted access to a fair and non-discriminatory judicial system to enforce their basic rights. See generally A. Roth, The Minimum Standard of International Law Applied to Aliens (1949) (Roth, Minimum Standard), at 134–185; and Chapter 1.1.

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no practical purpose served by the application of rules of reciprocity to refugees: [R]efusal to accord national treatment to foreigners in the absence of reciprocity is merely an act of mild retaliation. The object [of reciprocity] is to reach, through the person of the nationals concerned, those countries which decline to adopt an equally liberal regime . . . But what country or which Government can be reached through the person of a refugee? Can the refugee be held responsible for the legislation of his country of origin? Clearly, the rule of reciprocity, if applied to refugees, is pointless and therefore unjust. The injury caused to refugees by the application of this rule is substantial since the rule constantly recurs in texts governing the status of foreigners. Since the condition of reciprocity cannot be satisfied, refugees are denied the enjoyment of a whole series of rights which are accorded in principle to all foreigners.263

State approaches to reciprocity fall into two broad categories.264 States embracing the theory of “diplomatic reciprocity” grant rights to non-citizens only to the extent that such rights are provided for by interstate agreement. The alternative legislative or de facto reciprocity approach conditions non-citizen rights on the existence of reciprocal domestic laws (or sometimes practice) in the alien’s country of origin. A critical distinction between the two approaches is that whereas diplomatic reciprocity assumes no non-citizen rights beyond what has been negotiated, states committed to legislative or de facto reciprocity “usually grant foreigners the same rights as their subjects, reserving however the power to apply retorsion to the nationals of countries where aliens generally or their subjects alone [were] handicapped by the particular disability in question.”265 263

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Secretary-General, “Memorandum,” at 29, citing statement of the French government when submitting the 1933 Refugee Convention for legislative approval. The definition of recognized approaches to reciprocity is not without confusion. Borchard, for example, identifies only two systems, namely diplomatic and legislative reciprocity: E. Borchard, The Diplomatic Protection of Citizens Abroad (1915) (Borchard, Diplomatic Protection), at 71–72. In contrast, the document prepared by the United Nations Department of Social Affairs, “A Study of Statelessness,” UN Doc. E/1112, Feb. 1, 1949 (United Nations, “Statelessness”), at 17–18, which served as the basis for drafting of the Refugee Convention, argues that there are two approaches to reciprocity, namely diplomatic and de facto. While de facto reciprocity as defined by the UN Study and legislative reciprocity as defined by Borchard are comparable in that the referent for duties owed to aliens is a domestic, rather than an international standard, it is clear that a number of the Refugee Convention’s drafters insisted upon the relevance of the dichotomy between reciprocity systems based on domestic legislation, as contrasted with those based on domestic practice, in the partner state. See in particular comments of Mr. Perez Perozo of Venezuela, UN Doc. E/AC.32/SR.11, Jan. 25, 1950, at 3; and the exchange between the representatives of the Netherlands and Belgium at the Conference of Plenipotentiaries, UN Doc. A/CONF.2/SR.24, July 17, 1951, at 22. Borchard, Diplomatic Protection, at 72.

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The predecessor 1933 Refugee Convention exempted refugees from all requirements of reciprocity.266 This clause of course had no impact on states that did not condition the treatment of refugees on reciprocity in any event. Importantly, its implications for states which relied on diplomatic reciprocity were also relatively modest. Because diplomatic reciprocity does not work from an underlying presumption that aliens should receive full rights, exemption from reciprocity in diplomatic reciprocity states brought refugees only within the ranks of the residual category of foreigners. Exemption from reciprocity had, however, significant ramifications for countries that conditioned alien rights on legislative or de facto reciprocity, since exemption from reciprocity revived the presumption underlying that theory that aliens should be assimilated to nationals, thereby effectively requiring national treatment for refugees.267 This historical background is important for understanding the approach taken in the current Refugee Convention. It was initially proposed that, as under the 1933 Convention, refugees protected by the 1951 Convention should simply be assimilated to the citizens of states with which the asylum country enjoyed a reciprocity arrangement.268 While some states – including in particular Denmark269 and the United States270 – supported this position, France pointed to the fact that only three of the eight state parties to the 1933 Convention had actually accepted the duty to exempt refugees from reciprocity.271 Arguing the importance of pragmatism, it successfully proposed 266

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“The enjoyment of certain rights and the benefit of certain favours accorded to foreigners subject to reciprocity shall not be refused to refugees in the absence of reciprocity”: Convention relating to the International Status of Refugees, 159 LNTS 3663, done Oct. 28, 1933, entered into force June 13, 1935 (1933 Refugee Convention), at Art. 14. See Chapter 3.2. “The enjoyment of the rights and favours accorded to foreigners subject to reciprocity shall not be refused to refugees (and stateless persons) in the absence of reciprocity”: Secretary-General, “Memorandum,” at 28. “Denmark used reciprocity simply as a means to ensure that Danes in foreign countries received the privileges that were granted to nationals of those countries in Denmark. In such cases he felt that refugees should be granted the same privileges although there could be no question of reciprocity”: Statement of Mr. Larsen of Denmark, UN Doc. E/AC.32/ SR.36, Aug. 15, 1950, at 18–19. “[I]n the United States of America as in the United Kingdom, problems of reciprocity did not arise but . . . he, too, had no objection to the inclusion of the article for the sake of countries differently situated . . . The main object was to ensure that aliens should not be penalised because they had no nationality and that where privileges were generally enjoyed by aliens, through treaties or in any other way, refugees should have the same privileges”: Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.34, Aug. 14, 1950, at 15–16. Only Bulgaria, France, and Italy did not enter a reservation or qualification to Art. 14 of the 1933 Convention: United Nations, “Statelessness,” at 93–97. It is noteworthy that Bulgaria and Italy routinely assimilated aliens to foreigners in any event, and France relied on diplomatic reciprocity (thereby allowing it to reserve a category of privileged aliens,

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an alternative formulation premised on the denial to refugees of all rights conditioned on diplomatic reciprocity, and stipulating that rights conditioned on legislative or de facto reciprocity would accrue to refugees only after residing for a number of years in the asylum country.272 States that relied on legislative or de facto reciprocity would thereby find themselves on a similar footing with countries that embraced diplomatic reciprocity.273 The general standard of treatment under the Refugee Convention is thus premised on the continued existence of preferred aliens regimes in states that rely on diplomatic reciprocity, in which refugees may not insist that they be afforded rights reserved by treaty for the citizens of countries with which the asylum state has a special relationship.274 Art. 7(2) moreover caters specifically for states that embrace the legislative or de facto approach to reciprocity, the goal being to avoid imposing significantly more onerous responsibilities on them than on diplomatic protection countries.275 This result was attenuated by delaying the time at which refugees are granted the benefit of rights ordinarily subject to legislative or de facto reciprocity,276 deferring exemption from legislative reciprocity until a refugee has resided in an asylum state for three years.277

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exemption from reciprocity notwithstanding). The article was not in force for any legislative or de facto reciprocity state where it would clearly have had the greatest impact. “The enjoyment of certain rights and the benefit of certain privileges accorded to aliens subject to reciprocity shall not be refused to refugees in the absence of reciprocity in the case of those enjoying them at the date of signature of the present Convention. As regards other refugees, the High Contracting Parties undertake to give them the benefit of these provisions upon completion of [a certain period of] residence”: France, “Proposal for a Draft Convention,” UN Doc. E/AC.32/L.3, Jan. 17, 1950 (France, “Draft Convention”), at 4. Only refugees who enjoyed exemption from reciprocity under the 1933 Convention or another pre-1951 instrument are entitled immediately to be assimilated to the ranks of privileged foreigners: Refugee Convention, at Art. 7(3). See Chapter 3.2.1. While the text of the articles speaks only to “legislative reciprocity,” it is clear from the drafting history that this term was used in contradistinction to “diplomatic reciprocity.” As observed by its Belgian co-sponsor, the term “legislative reciprocity” “was emphatically not designed to exclude de facto reciprocity”: Statement of Mr. Herment of Belgium, UN Doc. A/CONF.2/SR.24, July 17, 1951, at 22. There is a logical basis for this assertion, grounded in differing ways of categorizing approaches to reciprocity. See Chapter 3.2. The Ad Hoc Committee agreed that “a legal obligation in this sense would be acceptable only in regard to refugees who had resided in the country for a given period”: Ad Hoc Committee, “Second Session Report,” at 12. Austria was one of the few states present that relied primarily on legislative reciprocity. Because it was a country of first asylum for large numbers of refugees who would ultimately be granted resettlement elsewhere, a three-year delay in according exemption from reciprocity effectively met its most pressing concerns. See Comments of the Government of Austria, in United Nations, “Compilation of Comments,” at 5, 32. The determination of when the requirement of “three years’ residence” has been satisfied should be made in accordance with the spirit of Art. 10 (“continuity of residence”): see Chapter 3.1.5. Skordas makes the intriguing argument that once the three-year deferral

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The net result is that the general standard of treatment under the modern Refugee Convention endorses a significant, though not complete, retrenchment from the requirement of the 1933 Refugee Convention that refugees should be exempted from all reciprocity requirements. By virtue of Art. 7(1)’s limited duty to accord to refugees all rights that inhere in “aliens generally,” refugees may presumptively be refused any diplomatic reciprocity rights which accrue only to preferred nationals, such as those of partner states in an economic or political union.278 In reliance on Art. 7(2), states may also withhold for up to three years any rights that are reserved for the nationals of states which have met the requirements of legislative or de facto reciprocity. Some drafters clearly recognized the inappropriateness of subjecting refugees to the harshness of reciprocity.279 While unable to overcome the protectionist views of the majority of states, they nonetheless secured an amendment that shields many pre-1951 refugees from any attempt to reduce rights based on reciprocity principles.280 Of greater contemporary relevance, Art. 7 was also amended to oblige states to give consideration to the waiver of legislative and de facto reciprocity requirements before the lapse of the three-year residency requirement.281 As

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period has been satisfied in one state party, any other state party in which the refugee may reside must also exempt that refugee from its requirements of legislative reciprocity: Skordas, “Article 7,” at 751. While the language (“in the territory of the Contracting States”) might justify that conclusion, there is no support in the drafting record for this broad scope of application. But “paragraph 2 of article [7] must be interpreted in the light of paragraph 1”: Statement of Sir Leslie Brass of the United Kingdom, UN Doc. E/AC.32/SR.41, Aug. 23, 1950, at 7. As such, if and when rights formally subject to reciprocity are in fact generally enjoyed by most non-citizens in a given country, refugees must receive the benefit of these rights as well: see Chapter 3.2.1. Thus, if for example the majority of non-citizens in a given country are European Union nationals refugees must be assimilated to EU nationals for purposes of rights allocation. “According to [the draft of Art. 7(3)] . . . certain refugees would continue to enjoy the reciprocity which they had previously enjoyed; that included the legislative reciprocity mentioned in the second paragraph, as well as diplomatic and de facto reciprocity. On the other hand, new refugees would . . . enjoy exemption from reciprocity only after a period of three years’ residence in the receiving country. He appreciated the reasons for which certain States felt obliged to limit the rights of new refugees in that way, but pointed out that there were other States which visualized the possibility of extending the idea of reciprocity even to non-statutory refugees”: Statement of Baron van Boetzelaer of the Netherlands, UN Doc. A/CONF.2/SR.24, July 17, 1951, at 21–22. “Each Contracting State shall continue to accord to refugees the rights and benefits to which they were already entitled, in the absence of reciprocity, at the date of entry into force of this Convention for that State”: Refugee Convention, at Art. 7(3). “The Contracting States shall consider favourably the possibility of according to refugees, in the absence of reciprocity, rights and benefits beyond those to which they are entitled according to paragraphs 2 and 3, and to extending exemption from reciprocity to refugees who do not fulfil the conditions provided for in paragraphs 2 and 3”: Refugee Convention, at Art. 7(4). The Ad Hoc Committee had “expressed the hope that States would give sympathetic consideration to extending rights, as far as possible, to all refugees without

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Robinson282 and Weis283 affirm, Art. 7(4) is not merely hortatory, but requires governments to give real attention to the logic of continued application of reciprocity requirements to refugees. While not formally obliged to grant rights subject to legislative or de facto reciprocity during the first three years a refugee resides in its territory, Art. 7(4) “uses the word ‘shall’ to indicate that it requires the states to consider favorably the possibility of according such rights.”284 In any event, it is today doubtful that states also bound by the International Covenant on Civil and Political Rights may validly withhold refugee rights on the grounds of an absence of reciprocity.285 The Covenant’s general guarantee of non-discrimination requires that rights allocated by a state to any group presumptively be extended to all persons under its jurisdiction.286 Legislative and de facto reciprocity are particularly vulnerable, as the decision to deny rights to only those aliens whose national states have not agreed to reciprocal treatment is explicitly a means of pressuring other states to grant protection to foreign citizens.287 As observed by the American representative to the Ad Hoc

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regard to reciprocity, particularly where the rights have no relation to the requirements of residence, as for example, compensation for war damages and persecution”: Ad Hoc Committee, “Second Session Report,” at 11–12. “[T]he [Ad Hoc] Committee expressed the hope that states would give sympathetic consideration to extending rights, as far as possible, to all refugees without regard to reciprocity, particularly where the rights have no relation to the requirements of residence. This ‘hope’ was transformed by the Conference [of Plenipotentiaries] into a special clause which must have more meaning than ‘hope.’ It is a recommendation to the Contracting States . . . In other words, a state cannot be forced to accord these rights, but there must be a well-founded reason for refusing their accordance”: Robinson, History, at 88–89. “It is only a recommendation, but imposes nevertheless a mandatory obligation to consider favourably the granting of wider rights and benefits”: Weis, Travaux, at 57. Robinson, History, at 89. This is certainly the case where the rights in question are themselves guaranteed by international law. For example, the UN Human Rights Committee has expressed the view that “the provisions in [Azerbaijan’s] legislation providing for the principle of reciprocity in guaranteeing Covenant rights to aliens are contrary to articles 2 and 26 of the Covenant”: “Concluding Observations of the Human Rights Committee: Azerbaijan,” UN Doc. CCPR/CO/73/AZE, Nov. 12, 2001, at [20]. An analysis of the role of reciprocity in international human rights law asserts the potential value of reciprocity in the context of a system which still lacks a centralized enforcement mechanism. It nonetheless insists that countermeasures must be carefully targeted, lest the goals of human rights law be undermined. “At a general level, the notion of enforcing human rights law through disregard for its norms seems incompatible with this rationale, indeed, the raison d’être, of that body of law . . . [A] mechanism that would permit infringements of human rights to be echoed by further infringements of human rights would undoubtedly undermine the structure of human rights as a body of compulsory norms limiting the actions of the State”: Provost, “Reciprocity”, at 444–445. See Chapter 1.5.5 at note 453. Whether preferred rights secured by special forms of diplomatic reciprocity are equally vulnerable to attack on the basis of the duty of non-discrimination is less clear. Where enhanced rights are granted only to citizens of those states with which the asylum country

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Committee, “[t]he purpose of making . . . rights subject to reciprocity was to encourage other countries to adopt an equally liberal regime towards foreigners in their territory. Naturally there was nothing to be gained by making the rights subject to reciprocity where a refugee was concerned.”288 In view of the impossibility of advancing the explicitly instrumentalist goals of most reciprocity regimes through the persons of refugees,289 an attempt to rely on the restrictive portions of Art. 7 is unlikely to meet modern understandings of the duty of non-discrimination, the broad margin of appreciation afforded state parties notwithstanding.290

3.2.3 Exemption from Insurmountable Requirements Refugee Convention, Art. 6 The Term “In the Same Circumstances” For the purpose of this Convention, the term “in the same circumstances” implies that any requirements (including requirements as to length and conditions of sojourn or residence) which the particular individual would have to fulfil for the enjoyment of the right in question, if he were not a refugee, must be fulfilled by him, with the exception of requirements which by their nature a refugee is incapable of fulfilling. As previously noted, most Convention rights that require implementation only at the baseline standard – rights to property, self-employment, professional practice, housing, and post-primary education291 – are textually framed to require “treatment as favourable as possible and, in any event, not less favourable than that accorded to aliens generally in the same circumstances.” Governments are also allowed to restrict the internal mobility of refugees lawfully present in their territory “subject to any regulations applicable to aliens generally in the same circumstances.”292 The same phrase is used to modify the duty to assimilate refugees to the nationals of most-favored states in relation to the rights to association and to wage-earning employment: “the most favourable treatment accorded to nationals of a foreign country, in the same circumstances.”293

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is linked in a form of political or economic union, for example, this may be said to reflect an effective assimilation of those aliens to the political or economic community of the partner state. The non-discrimination analysis ought therefore to focus on whether the rights in question can be said to reflect the unique abilities and potentialities of members of a shared political and economic community. See Chapter 1.5.5 at note 448 ff. Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.23, Feb. 3, 1950, at 2. See text at note 263. 290 See Chapter 1.5.5 at note 484 ff. Refugee Convention, at Arts. 13, 18, 19, 21, and 22. 292 Ibid. at Art. 26. Ibid. at Arts. 15, 17. Comparable phrasing is employed to define the duty of tax equity in Art. 29 (“[no] taxes . . . other or higher than those which are . . . levied on their nationals in similar situations”).

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This language reflects the view of the drafters that where refugee rights are defined to require only the baseline standard of treatment – that is, assimilation to aliens generally – refugees should have to qualify in essentially the same way as other aliens. The initial approach of the Ad Hoc Committee was quite strict, suggesting that refugees should have to meet “the same requirements, including the same length and conditions of sojourn or residence, which are prescribed for the national of a foreign state for the enjoyment of the right in question.”294 The Committee rejected proposals that would have required states to judge comparability solely on the basis of terms and conditions of stay in the asylum state.295 The Belgian and American representatives argued that such an approach was too restrictive, but were able to persuade the Committee only that governments should be entitled to consider a wide variety of criteria in determining whether a refugee is truly similarly situated to other aliens granted particular rights.296 At the Conference of Plenipotentiaries, the Australian delegate lobbied unsuccessfully to grant states even more discretion to withhold rights from refugees. Mr. Shaw proposed “[t]hat nothing in this Convention shall be deemed to confer upon a refugee any right greater than those enjoyed by other aliens.”297 This position was soundly denounced, and ultimately withdrawn.298 As the Austrian representative observed, “[i]f it were to be posited that refugees should not have rights greater than those enjoyed by other aliens, the Convention seemed pointless, since its object was precisely to provide for specially favourable treatment to be accorded to refugees.”299 The Conference nonetheless agreed that where rights are defined at the baseline “aliens generally” standard, governments could legitimately deny access to particular rights on the grounds that a given refugee is not truly “in the same circumstances” as other aliens enjoying the right in question. In line with the thinking of the Ad Hoc Committee, representatives to the Conference of Plenipotentiaries were not persuaded that states should have to judge the comparability of a refugee’s situation on the basis solely of the 294 295

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Ad Hoc Committee, “Second Session Report,” at 15. Proposal of the Chairman, Mr. Larsen of Denmark, UN Doc. E/AC.32/SR.36, Aug. 15, 1950, at 9; and Proposal of Mr. Robinson of Israel, UN Doc. E/AC.32/SR.42, Aug. 24, 1950, at 23. Statements of Mr. Herment of Belgium and Mr. Henkin of the United States, UN Doc. E/ AC.32/SR.42, Aug. 24, 1950, at 24. Proposal of Australia, UN Doc. A/CONF.2/19, July 3, 1951. See e.g. criticisms voiced by Mr. Herment of Belgium and Mr. von Trutzschler of the Federal Republic of Germany, UN Doc. A/CONF.2/SR.6, July 4, 1951, at 5–6. Statement of Mr. Fritzler of Austria, ibid. at 6. “Acceptance of any part of the Australian revision would have, in effect, rendered meaningless the various protections granted to refugees when fleeing for their lives”: G. Ben-Nun, “The Israeli Roots of Article 3 and Article 6 of the 1951 Refugee Convention,” (2014) 27(1) Journal of Refugee Studies 101, at 117.

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conditions of his or her sojourn or residence.300 As Grahl-Madsen observed, “[i]n most countries certain rights are only granted to persons satisfying certain criteria, for example with regard to age, sex, health, nationality, education, training, experience, personal integrity, financial solvency, marital status, membership of a professional association or trade union, or residence, even length of residence within the country or in a particular place. There may also be strict rules for proving that one possesses the required qualifications, e.g. by way of specified diplomas or certificates.”301 Broader concerns of this kind were likely of importance to the drafters. The Belgian delegate, for example, expressly suggested that evidence of occupational or professional qualification might be a legitimate ground upon which to condition access to certain rights.302 The British representative insisted that the notion of “in the same circumstances” was “defined in its implications, not in its meaning.”303 While conditions of residence or sojourn were obviously the primary concerns,304 it would be undesirable to particularize all possible grounds for defining similarity of circumstances “since that might result in the vigorous application of all possible requirements applicable to foreigners in the country of asylum.”305 Thus, Art. 6 is framed in open-ended language,306 allowing governments “some latitude . . . to decide within the general conception that refugees were not to have more privileged treatment than aliens generally as to the conditions which must be fulfilled.”307 This discretion is not, however, absolute. Apart from the requirements now imposed by general principles of non-discrimination law,308 the major caveat to the prerogative granted states to define the basis upon which the comparability of a refugee’s situation is to be assessed is the duty to exempt refugees from 300

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The United Kingdom representative sought to restrict the comparison to only “requirements as to length and conditions of sojourn or residence,” but withdrew his proposal in the face of substantial disagreement. See Statements of Mr. Hoare of the United Kingdom, UN Doc. A/CONF.2/SR.34, July 25, 1951, at 16; and UN Doc. A/CONF.2/SR.35, July 25, 1951, at 36. Grahl-Madsen, Commentary, at 23. “To give an example, it might be that a refugee would wish to procure a document allowing him to exercise a profession or ply a trade. The element of sojourn or residence would count, of course, but other considerations might also come into play, such as the kind of trade or profession the refugee wished to engage in”: Statement of Mr. Herment of Belgium, UN Doc. A/CONF.2/SR.34, July 25, 1951, at 17. Statement of Mr. Hoare of the United Kingdom, ibid. at 17. 304 Ibid. at 16. Statement of Mr. Hoare of the United Kingdom, UN Doc. A/CONF.2/SR.35, July 25, 1951, at 35. “[T]he treatment of foreigners was not necessarily uniform, but would depend in many instances upon the individual’s circumstances and claims to consideration”: Statement of Mr. Hoare of the United Kingdom, UN Doc. A/CONF.2/SR.3, July 3, 1951, at 22. Statement of Mr. Hoare of the United Kingdom, UN Doc. A/CONF.2/SR.35, July 25, 1951, at 35. See Chapter 1.5.5.

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insurmountable requirements. Even as governments insisted on the authority to require refugees to qualify for rights and benefits on the same terms as other aliens, they recognized that the very nature of refugeehood – for example, the urgency of flight, the severing of ties with the home state, and the inability to plan for relocation – may sometimes make compliance with the usual criteria a nearimpossibility: For example, in some eastern European countries a person had to fulfil certain qualifications relating to residence in order to be eligible for social security. The definition . . . was too rigid, and would weaken the Convention . . . The special circumstances of refugees must be recognized.309

The validity of this concern was endorsed without opposition, leading the Conference of Plenipotentiaries to adopt a joint British-Israeli amendment to require governments to exempt refugees from requirements “which by their nature a refugee is incapable of fulfilling.”310 As suggested by the concerns of the Israeli representative that led to the redrafting of Art. 6,311 general criteria based on length of sojourn or residence may be relied on to assess the entitlement of refugees, but may not be mechanistically applied.312 Some flexibility to take account of difficulties faced by refugees in meeting the usual standard is clearly called for.313 For example, Grahl-Madsen suggests that requirements to produce certificates of nationality, or documentation of educational or professional qualification or experience acquired in the refugee’s country of origin may sometimes fall within the insurmountable requirements exception.314 This does not mean that refugees should be admitted to jobs for which they are truly unqualified, but simply that if “the refugee is unable to produce a certificate from the university in the country of origin where he graduated, he must be allowed to prove his possession of the required academic degree by other means than the normally required diploma.”315 In line 309 310

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Statement of Mr. Robinson of Israel, UN Doc. A/CONF.2/SR.5, July 4, 1951, at 19. The proposal was adopted on a 22–0 (2 abstentions) vote: UN Doc. A/CONF.2/SR.26, July 18, 1951, at 10. See text at note 309. As the Court of Justice of the European Union insisted in determining whether beneficiaries of subsidiary protection could be subject to a restriction on freedom of residence not applied to other social security recipients, the test is whether “those groups are not in an objectively comparable situation as regards the objective pursued”: KreisWarendorf v. Ibrahim Alo and Amira Osso v. Region Hannover, Dec. Nos. C-443/14 and C-444/14 (CJEU, Mar. 1, 2016), at [54]. “The object of the phrase ‘in the same circumstances’ is, thus, to clarify that the treatment of refugees compared to that of foreigners and nationals need not necessarily be uniform, but depends in many instances upon the refugee’s special status and his or her situation”: R. Marx and F. Machts, “Article 6,” in A. Zimmermann ed., The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary 707 (2011), at 713. Grahl-Madsen, Commentary, at 23. 315 Ibid.

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with this optic, the Supreme Court of Ireland ordered that a flexible approach be taken to documentation of the marriage of a Somali refugee given the collapse in governmental administration in his home country.316 More generally, the very nature of the refugee experience may have denied the individual the time to amass or to carry all relevant documentation when leaving his or her country, and there may be no present means to compel authorities there to issue the requisite certification from abroad.317 The net result is a fair balance between a general principle of assimilating refugees to other aliens – both in the positive sense of granting them access to particular benefits, and in the negative sense of requiring compliance with the usual rules for entitlement to those benefits – and the equally obvious need to render substantive justice to refugees in the application of those principles.318 Even when implementation is required only to the same extent granted aliens generally, whatever impediments an individual refugee faces by virtue of the uprooting and dislocation associated with refugeehood should not be relied upon to deny access to rights.

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“In the present case, the Minister was confronted with an application based on a clear assertion of a marriage ceremony with legal effect in Somalia, combined with the total loss of any possibility of producing documentary proof. The Minister is essentially required to make an assessment based on all the evidence . . . He must consider the assertion made by the applicant that a marriage has taken place and assess [its] credibility, based on all the circumstances. He is not bound to accept a bald assertion but should consider it in combination with all other circumstances. One of those circumstances will be the reason offered for inability to produce a certificate”: Hassan and Saeed v. Minister for Justice, Equality, and Law Reform, [2013] IESCE 8 (Ir. SC, Feb. 20, 2013), at [52]. See Weis, Travaux, at 46–47. The spirit of this imperative was clearly recognized by the UK Supreme Court in considering whether rules on refugee family reunification for “the child of a parent” would extend to a child for whom a British resident family member had taken responsibility under traditional Islamic Kafala rules after the death of her father. Finding that British law excluded such a relationship, the Court nonetheless called for amendment of the law, noting that it “accept[ed] . . . that under the rules AA is treated less favourably than the adoptive siblings, largely because of the tragic circumstances in which parental responsibility passed to her brother-in-law, taken with the lack of any functioning legal system allowing for formal adoption in the country from which she comes”: AA (Somalia) v. Entry Clearance Officer (Addis Ababa), [2013] UKSC 81 (UK SC, Dec. 18, 2013), at [24]–[25]. The same court more recently determined that application of the minimum income rules governing family sponsorship generally could result in unjustifiable harshness if applied to a refugee given the “insurmountable obstacles to the couple living together” in the refugee’s country of origin: R (SS Congo) v. Entry Clearance Officer, Nairobi, [2017] UKSC 10 (UK SC, Feb. 22, 2017), at [102], [104]–[105].

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3.2.4 Rights Governed by Personal Status Refugee Convention, Art. 12 Personal Status 1. The personal status of a refugee shall be governed by the law of the country of his domicile or, if he has no domicile, by the law of the country of his residence. 2. Rights previously acquired by a refugee and dependent on personal status, more particularly rights attaching to marriage, shall be respected by a Contracting State, subject to compliance, if this be necessary, with the formalities required by the law of that State, provided that the right in question is one which would have been recognized by the law of that State had he not become a refugee. As Verhellen notes, when refugees leave their country to seek protection they not only face the challenge of documenting their relationships and consequent entitlements in relation to such fields as legal capacity, family status, and rights of succession,319 but more fundamentally they often confront the complicated issue of the so-called limping legal relationships or relationships/personal status which one legal order considers lawful and valid, but another legal order does not. Dealing with limping legal relationships is one of the core tasks of private international law, which aims for as much cross-border continuity and harmony as possible in people’s identities, personal and/or family status.320

Because different legal systems apply different rules to determine such questions, a “connecting factor” must be identified to resolve the conflict of laws dilemma. Of the three dominant approaches – looking to “nationality,” “domicile,” or “habitual residence” – Art. 12 of the Refugee Convention requires that “domicile” be treated as the determinative connecting factor. Which forms of personal status are governed321 by reference to the rules applying in the refugee’s country of domicile? While the Chairman of the Ad 319 320

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Hoc Committee was insistent that the Convention provide a clear definition of relevant forms of personal status,322 the majority of Committee members successfully resisted his plea.323 The French and British delegates argued that it was unlikely that any agreement was possible on this subject, given its extraordinary legal complexity,324 leading to the decision that “it would be for each State which signed the convention to interpret the expressions within it within the framework of its own legislation and in the light of the concepts that were most akin to its own juridical system.”325 But this domestic discretion should be informed by “the Secretariat study . . . [which] was an adequate exposé of the concept of personal status. It was for the contracting states to decide finally upon the elements of that status, in the light of the interpretation given by the Secretariat and of the records of the Committee meetings, without, however, being bound by those texts.”326 The Secretariat’s Study refers to three types of personal status governed by Art. 12.327 The first, “[a] person’s capacity (age of attaining majority, capacity of the married woman, etc.),”328 elicited no debate during the drafting of the Convention. While the primary concern of the Study involved the preservation of the property rights of married women (discussed below),329 comparable

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succession, real estate is located in another country. Here, Art. 12, para. 1 should be read as a ‘modifier’ of the respective choice of law rule of the forum. The general principles of conflict of laws of the forum should apply, including the doctrine of renvoi, but with the exception that any referral to the law of the country of origin of the refugee for issues of personal status must be avoided, whether by other connecting factors (such as the first common domicile of spouses), or by renvoi. This approach prevents discrimination against the refugee”: A. Metzger, “Article 12,” in A. Zimmermann ed., The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary 863 (2011) (Metzger, “Article 12”), at 875–876. Statements of the Chairman, Mr. Chance of Canada, UN Doc. E/AC.32/SR.9, Jan. 24, 1950, at 3, 11. The same concern was expressed by the Egyptian representative to the Conference of Plenipotentiaries, Mr. Mostafa, UN Doc. A/CONF.2/SR.7, July 5, 1951, at 10: “It would . . . be desirable for the Convention to define what was meant by personal status. The question was undoubtedly a very complex one, and might involve lengthy discussion.” The Israeli delegate argued that the Committee “would have to choose between an ideal convention, which would obtain only a few signatures, and a less satisfactory document which would be ratified by a greater number of States. If the Committee did not want the convention to become a dead letter, it must place a limit upon its ambitions”: Statement of Mr. Robinson of Israel, UN Doc. E/AC.32/SR.9, Jan. 24, 1950, at 6. “[I]t would be dangerous for the Ad Hoc Committee to follow the course advocated by the Chairman . . . Indeed, it was unlikely that such a definition would be in harmony with the various legislations of the States signatories . . . Such a notion should not . . . be defined in a convention dealing solely with refugees, but rather in an instrument dealing with private international law in general”: Statement of Mr. Rain of France, ibid. at 4. See also Statement of Sir Leslie Brass of the United Kingdom, ibid. at 5: “He did not consider that the members of the Committee were competent to work out definitions of that kind.” Statement of Mr. Larsen of Denmark, ibid. at 4. Statement of Mr. Robinson of Israel, ibid. at 8. See also Statements of Sir Leslie Brass of the United Kingdom, ibid.; Mr. Kural of Turkey, ibid.; and Mr. Rain of France, ibid. at 9. United Nations, “Statelessness,” at 24. 328 Ibid. 329 See text at note 373 ff.

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dilemmas might arise for a woman coming from a state in which women are not allowed to have independent legal or economic status. Such a woman might find – if reference were made by the reception state to the rules on status in the country of origin – that “[s]he [could] neither sign a lease, acquire property nor open a bank account. Her economic activity [would be] hampered and her chances of settling down and becoming assimilated [would be] jeopardized.”330 By virtue of Art. 12, however, the refugee woman is entitled to have her personal status assessed by reference to the norms prevailing in her new country of domicile (or residence, if domicile had yet to be acquired). Similarly, a refugee coming from a country in which the age of majority is, for example, twenty-one years old to an asylum state in which an individual is deemed an adult at eighteen years old, is entitled to the benefit of that lower age of majority. The second head of personal status identified in the Study is status relevant to “family rights (marriage, divorce, recognition and adoption of children, etc.) . . . [and] [t]he matrimonial regime in so far as this is not considered a part of the law of contracts.”331 It seems clear that these forms of status were uppermost in the minds of the drafters,332 in particular because some states had taken the view that the non-citizen status of refugees meant that authorities in the asylum country could not apply their own rules to decide on eligibility for entry into or dissolution of a marriage.333 But by virtue of Art. 12’s stipulation that the personal status of refugees is to be governed by the rules of the domicile state, “[t]he authorities of the country of [domicile] will therefore be competent to celebrate marriages in accordance with the rules regarding form and substance of the place where the marriage is celebrated. Similarly courts will be competent to decree divorces in accordance with the lex fori establishing the conditions for divorce.”334 The breadth of relevant forms of status is clear from the explanatory notes to the paragraph of the draft article originally specifically devoted to family law matters, which observed “that personal status includes family law (that is to say filiation, adoption, legitimation, parental authority, guardianship and curatorship, marriage and divorce) and the law concerning successions.”335 While this paragraph was later deleted as a superfluous elaboration of the basic rule set out in paragraph 1, it is clear that there was agreement that a broad-ranging set of refugee family law status concerns is to be governed by the law of the 330 333

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United Nations, “Statelessness,” at 25. 331 Ibid. at 24. 332 See text at notes 327–337. Among the specific concerns identified in the Study were requirements to produce identity or other documents available only from the authorities of the country of origin, the production of civil registration documents, and possession of particular kinds of residence permits: United Nations, “Statelessness,” at 25–26. Ibid. at 25. 335 Secretary-General, “Memorandum,” at 25.

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domicile state,336 whatever the rules generally applicable to other noncitizens.337 Third and finally, the Study suggests that Art. 12 governs personal status relevant to issues of “[s]uccession and inheritance in regard to movable and in some cases to immovable property.”338 Specific reference was required because of the ambiguity about whether such concerns were squarely matters of family law status.339 The qualified phrasing (“and in some cases to immovable property”) follows from the fact that inheritance of real property is not in all jurisdictions a matter regulated by personal status.340 Clearly, the duty to assess a refugee’s personal status by reference to the rules of the domicile state gives the refugee no practical advantage where personal status is not relevant (for citizens or others) to particular forms of succession or inheritance. It should be emphasized that these three forms of personal status – namely, status relevant to personal capacity, family rights and the matrimonial regime, and succession and inheritance – were agreed to simply as general points of 336

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Some substantive concerns were raised in relation to the details of the proposed Art. 12(2) (see e.g. the comments of Mr. Guerreiro of Brazil, UN Doc. E/AC/32/SR.9, Jan. 24, 1950, at 5). But in the end, no objection was taken to the request of the representative of the International Refugee Organization “to include in the Committee’s report a paragraph explaining that paragraph 2 had been deleted because, in the opinion of the Committee, paragraph 1 fully covered the points raised in paragraph 2 and also because the law differed considerably in various States, particularly with regard to the questions referred to in paragraph 2. The report might then state that the Committee had unanimously agreed that the questions dealt with in paragraph 2 ought not to be governed by the rules concerning the substance, form and competence of the national law, even in the countries in which such questions were usually governed by that law”: Statement of Mr. Weis of the IRO, ibid. at 13–14. The actual text of the relevant passage in the Committee’s report is significantly more succinct. It notes simply that “[t]he Committee decided that it was not necessary to include a specific reference to family law, as this was covered by paragraph 1”: Ad Hoc Committee, “First Session Report,” at Annex II. “[T]he main purpose was to regulate the position of those countries where aliens were subject to their own national law”: Statement of Sir Leslie Brass of the United Kingdom, UN Doc. E/AC.32/SR.9, Jan. 24, 1950, at 9. This was unequivocally accepted by, for example, the French delegate, who agreed that “there could be no further question of applying national law to the personal status of refugees and there was no distinction to be made between the various countries”: Statement of Mr. Rain of France, ibid. United Nations, “Statelessness,” at 24. The French delegate posed a question (which was never answered on the record) to the Secretariat, namely “whether it considered that the law of succession was part of family law and whether it should therefore be understood that the rules of substance of the country of domicile . . . applied both to family law, particularly to the celebration and dissolution of marriage, and to the law of succession”: Statement of Mr. Rain of France, UN Doc. E/ AC.32/SR.9, Jan. 24, 1950, at 6. “In matters of succession . . . the transfer of real estate [in Brazil] was carried out in accordance with the legislation of the country where the real estate was, and not in accordance with that of the refugee’s country of domicile”: Statement of Mr. Guerreiro of Brazil, ibid. at 5.

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reference.341 They neither bind states as a matter of formal law, nor restrict the forms of personal status potentially governed by Art. 12.342 The choice of domicile as the connecting factor for the determination of a refugee’s personal status amounted to a rejection of the approach taken under the 1938 Refugee Convention, which had applied the traditional civil law rule that the personal status of a refugee or other non-citizen would be determined by reference to the law of the country of which the individual was a national.343 Under that approach, the courts of an asylum country applied the legal standards of the alien’s country of citizenship to determine whether a refugee child had been validly adopted, whether a refugee was entitled to an interest in his or her spouse’s property by virtue of marriage, or whether a will made by a refugee abroad was legally valid. Some civil law states still rely on nationality as the relevant connecting factor in conflict of laws situations – including important refugee-receiving countries such as China, France, the Netherlands, and Turkey. While that approach is today on the wane,344 it remained one of the two dominant options at the time 341

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See text at note 326. A recent analysis agrees that reliance on this study “is the preferable approach given that the main goal of the 1951 Convention is to ensure uniformity in the treatment of refugees . . . [T]he issues mentioned explicitly in the ‘Study of Statelessness’ are [best] used as a proxy to define ‘personal status.’ Those subject matters should be characterized as core issues of the personal status in the sense of Art. 12 . . . However, the ‘Study of Statelessness’ should not prevent the authorities of a contracting State from characterizing matters not mentioned explicitly as being subject to Art. 12”: Metzger, “Article 12,” at 871–872. Indeed, the British representative observed “that the definition given in the Secretariat study gave only a very vague idea of the concept of personal status”: Statement of Sir Leslie Brass of the United Kingdom, UN Doc. E/AC.32/SR.9, Jan. 24, 1950, at 8. The Turkish delegate concurred, noting that “[i]n point of fact, the concept of personal status would be determined by the laws and customs of each country, with due regard to the preparatory work of the convention”: Statement of Mr. Kural of Turkey, ibid. Convention on the Status of Refugees coming from Germany, 192 LNTS 4461, at Art. 6. The primary exception related to refugees who had no citizenship; the personal status of such refugees was determined by reference to their country of domicile or habitual residence. As such “paragraph 1 introduces an innovation. It makes no distinction between refugees who are stateless de jure and those who are stateless only de facto. In point of fact persons in either category no longer enjoy the protection of their countries of origin”: Secretary-General, “Memorandum,” at 25. There is today much support for a third option –“habitual residence” – based in no small part on the influence of Hague Conventions on Private International Law. While of some influence in the common law world, many civil law countries (including in particular those that are members of the European Union) that previously took nationality as their point of reference have now opted instead to rely on habitual residence. The habitual residence inquiry is retrospective and oriented to the identification of objective indicators that suggest “the place where the person has established, on a fixed basis, his permanent or habitual centre of interests, with all relevant facts being taken into account for the purpose of determining such residence”: Explanatory Report to the Brussels II Convention, OJ 1998 C221/27. The refugee’s intentions are given some weight under this approach, but

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of the Convention’s drafting, and enjoyed some support as a conceptually straightforward means of enabling refugees to seek asylum without thereby jeopardizing pre-existing basic entitlements. But the majority of the drafters of the 1951 Convention felt that it was ethically wrong to hold refugees hostage to personal status rules which prevailed in the countries which they had fled. The Danish representative advanced the argument that “[r]efugees should not be treated by the host country in accordance with the very laws – such as the Nürnberg Laws – that might have caused them to become refugees.”345 As summarized by Mr. Giraud of the Committee Secretariat, A refugee was characteristically a person who had broken with his home country and who no longer liked its laws. That fact constituted a strong reason for not applying to him the laws of his home country. Furthermore, it would make for more harmonious relations if the laws of the country in which the refugee had established domicile or residence were applied to him.346

The logic of not binding refugees to personal status rules in force in their country of origin thus has much in common with the basic premise of the duty to exempt refugees from exceptional measures. As discussed below,347 it would make little sense to stigmatize a refugee as an enemy alien on the basis of his or her formal possession of the nationality of a state the protection of which the refugee does not enjoy. Similarly, it was felt wrong that refugees should be forever held hostage to principles governing their personal status in the country of origin, even if inconsistent with the rules determining personal status in the asylum state where the refugee now lived. Principled concerns were not, however, solely responsible for the decision to depart from the precedent under which the rules of the refugee’s country of citizenship generally determined his or her personal status. To the contrary, the driving force for reform appears to have been the practical experience of the International Refugee Organization, which was concerned that the traditional nationality rule had caused real problems for refugees in the field of family rights, particularly in regard to the capacity to enter into marriage, and

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not the central role they are assigned under the domicile inquiry. But see Rentsch, Der gewöhnliche Aufenthalt, arguing that a comprehensive framework for understanding habitual residence must be grounded in an individual’s intention to settle somewhere. Statement of Mr. Larsen of Denmark, UN Doc. E/AC.32/SR.8, Jan. 23, 1950, at 2. See also Statement of Mr. Robinson of Israel, ibid.: “It would hardly be fair to say that a man who had fled from his country with the intention of never going back retained his nationality . . . [N]o refugee should be forced to accept the laws of the country of which he was a national.” Mr. Cha of China insisted that “refugees should be treated in accordance with the laws of the country which had given them asylum,” invoking his country’s aversion to the extraterritorial application of national laws: ibid. Statement of Mr. Giraud of the Secretariat, ibid. at 4. 347 See Chapter 3.5.2.

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the ability to dissolve a marriage.348 Reliance on the status rules of the refugee’s country of citizenship was moreover said to be fraught with administrative difficulty.349 An example offered by the Israeli delegate to the Conference of Plenipotentiaries gives some sense of this concern: Taking, by way of example, the case of a person whose place of origin was Vilna, and who had sought asylum in a country where in matters of international private law the courts applied the law of the country of origin, the courts would have to establish whether they should apply the Polish Civil Code, that of Lithuania before its annexation by the Soviet Union, or the Soviet Civil Code for the constituent republics of the Union. Such a decision would involve political considerations, and courts in some countries might be unwilling to go into such matters.350

The alternative recommended by the Secretariat was to allow refugees instead to have their personal status determined by the rules that prevail in his or her country of domicile.351 As understood in the common law world where it is the norm, the state of domicile is the place where the refugee is both 348

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“The IRO had experienced great difficulties in cases where the principle of domicile and residence had not been applied”: Statement of Mr. Weis of the International Refugee Organization, UN Doc. E/AC.32/SR.8, Jan. 23, 1950, at 5. More specifically, “the question of the right to contract marriage raised difficulties: countries which had so far applied the national law did so only in so far as it did not conflict with their public policy. It might therefore happen that the same consideration of domestic public policy might be raised in deciding the capacity of the refugee to contract marriage under the law of his country of domicile or residence. Moreover, the dissolution of marriages raised a question of competence: the courts of many countries refused to decree a dissolution of marriage if the national law of the person concerned was not obliged to recognize the validity of their ruling”: Statement of Mr. Weis of the International Refugee Organization, UN Doc. E/ AC.32/SR.9, Jan. 24, 1950, at 3–4. “In practice, the application of their own national law to refugees would involve great difficulties. Even if they had kept their own nationality, the authorities of their country of origin were unfavourably disposed towards them, and if a court of a reception country were to apply to those authorities for information needed to establish their personal status, it would presumably have difficulty obtaining such data”: Statement of Mr. Kural of Turkey, UN Doc. E/AC.32/SR.7, Jan. 23, 1950, at 13. See also Statement of Mr. von Trutzschler of the Federal Republic of Germany, UN Doc. A/CONF.2/SR.7, July 5, 1951, at 11: “There were grave technical objections to applying the law of the country of origin.” Statement of Mr. Robinson of Israel, UN Doc. A/CONF.2/SR.7, July 5, 1951, at 11–12. If a refugee does not have a country of domicile, Art. 12 as adopted does allow for reference to the rules on personal status of the refugee’s country of “residence.” “[T]he two criteria – domicile and residence – were not simply juxtaposed in the paragraph under consideration: it was to be noted that the law of the country of domicile was to be applied in the first instance, the law of the country of residence to be applied only if the country of the refugee’s domicile was unknown or in doubt. While preference was thus given to the criterion of domicile, the notion of residence had been introduced because it was often easier to establish residence than domicile”: Statement of Mr. Giraud of the Secretariat, UN Doc. E/AC.32/SR.8, Jan. 23, 1950, at 4–5. This is, however, strictly a back-up rule. “Decisions should . . . be based wherever possible on ‘domicile,’ and only exceptionally on

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physically present352 and in which he or she intends to reside on an indefinite basis.353 It was thus assumed that this would ordinarily be the country of asylum,354 facilitating the work of domestic courts involved in the adjudication of refugee rights:355 Such a solution would be to the advantage of the refugees, and would be welcomed also by other inhabitants of the country who may have legal proceedings with refugees, and by the courts of the country. Courts will be freed from the very difficult task of deciding which law is applicable and of discovering what are the provisions of foreign laws in a particular regard. Moreover, in some countries, courts may exercise jurisdiction with regard to aliens only if their decisions are recognized by the courts of the country of nationality of the alien. The present provisions would, by applying the law of domicile or of residence, eliminate this limitation with regard to refugees.356

In the end, even the French representative – who had tabled an opposing draft, under which personal status would have continued to be decided by reference to the rules of the refugee’s country of nationality357 – was persuaded that a refugee’s personal status should instead be governed by the standards applicable in his or her country of domicile.358 As summarized by the Danish representative,

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‘residence”’: Statement of Mr. Robinson of Israel, UN Doc. E/AC.32/SR.36, Aug. 15, 1950, at 6. There is no requirement that the physical presence be of any particular duration: White v. Tennant, (1888) 31 W. Va. 790 (US WVSCA, Dec. 1, 1888). Nor (as discussed at note 362) must the presence be lawful presence. “[I]t has again and again been laid down that a change of domicil from the domicil of origin must be made animo et facto. The factum is the bare fact of residence within the new domicil . . . [But] [t]he bare fact is not sufficient. If therefore the residence is absolutely colourless and there is nothing else the animus remains unproved”: Bowie or Ramsay v. Liverpool Royal Infirmary, [1930] AC 588 (UK HL, May 27, 1930), at 594. “The intention which is required for the acquisition of a domicile is the intention to reside permanently or for an unlimited time in a country”: L. Collins et al., Dicey, Morris and Collins on the Conflict of Laws (2019), at 144. “[T]he principle applied in this article is the most simple because in the majority of cases a refugee adopts the country of asylum as his domicile and thus the personal status will easily be established and reference to foreign law will be avoided”: Robinson, History, at 102. “Whereas during normal times, when there were few foreigners in a country, the application of the national law would not cause insurmountable difficulties, the courts would be inundated with work if, at a time when the number of refugees amounted to hundreds of thousands, they had to refer in each case to a national law with which they were unfamiliar”: Statement of Mr. Kural of Turkey, UN Doc. E/AC.32/SR.7, Jan. 23, 1950, at 14. Ad Hoc Committee, “First Session Report,” at Annex II. France, “Draft Convention,” at 3–4. Statement of Mr. Rain of France, UN Doc. E/AC.32/SR.8, Jan. 23, 1950, at 5. “The Committee was, in fact, trying to bring about the application of a new rule in countries

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With regard to refugees, the Committee had decided that their personal status would be governed by the law of their country of domicile . . . That being the case, all other criteria had been abandoned. Consequently, in those states where the law of the country of domicile . . . was applied, refugees would receive the same treatment as other aliens; in other countries, they would be granted a special status.359

The assessment of a refugee’s personal status by reference to the rules of his or her country of domicile is not, however, without its challenges. As a practical matter, intentions can be notoriously difficult to assess, especially for persons like refugees whose options and preferences are unsettled.360 And at the conceptual level, it is awkward to reconcile domicile’s “intention to reside on an indefinite basis” requirement with the legally transitory nature of refugee status which presupposes that refugees’ presence is only for the duration of a risk the duration of which is usually unknown.361 In practice, however, common law precedents show that domicile is remarkably malleable in ways that enable it by and large to meet the needs of refugees as the drafters intended. To start, the first leg – the “physical presence” requirement – is precisely that. In a seminal 2005 decision, the UK Supreme Court made clear that even unlawfully present persons can acquire a domicile of choice: [T]he reality of her presence and intention, the merits of her case, and the quality of her connections with the laws of this country are no different

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having a French legal tradition. The French idea had not met with a favorable reception so far, either on questions of principle or on those of application; in every case, it had had to yield to other ideas”: Statement of Mr. Rain of France, UN Doc. E/AC.32/SR.9, Jan. 24, 1950, at 12. Statement of Mr. Larsen of Denmark, UN Doc. E/AC.32/SR.9, Jan. 24, 1950, at 11. A. Iyer, “Domicile and Habitual Residence,” (1985) 6 Singapore Law Review 115, at 119. As a matter of principle, there is some force to the original assertion of the French representative that reliance on the rules of a refugee’s country of nationality was often more consistent with “the national traditions of the refugees” themselves: Statement of Mr. Rain of France, UN Doc. E/AC.32/SR.8, Jan. 23, 1950, at 3. Indeed, the only nongovernmental intervention on this issue opposed the shift to the determination of personal status based on the rules of domicile on the grounds that it failed to recognize the desire of many refugees ultimately to return to their country of origin. “That a political refugee who had a horror of his country of origin, and had no intention whatsoever of returning to it, should find himself given the personal status provided by the legislation of the host government seemed reasonable. But would it be reasonable, it might still be asked, to impose on refugees who were still attached to their country of origin and lived only in the hope of returning to it (as formerly the German anti-fascists had done and as the Spanish Republicans were doing at present), a personal status which might vary considerably according to their country of residence, and to adopt that measure, according to changes in circumstances in the country of domicile, without the person affected having an opportunity of expressing his own desires on the matter?”: Statement of Mr. Rollin of the Inter-Parliamentary Union, UN Doc. A/CONF.2/SR.10, July 6, 1951, at 8.

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from what they would have been had she formed her intention to remain just before her limited leave ran out in April 1998. Hence . . . it seems to me that there is no reason in principle why a person whose presence here is unlawful cannot acquire a domicile of choice in this country.362

Taken together with the long-standing principle that domicile can be immediately established so long as there is at some moment a co-existence of intent and physical presence,363 it seems clear that refugees can liberate themselves from the rules governing in their home country quite quickly.364 A South African court determined, for example, that an individual appealing the rejection of his asylum application had established South African domicile: [I]t is clearly plaintiff’s intention, if permitted, to settle in South Africa for an indefinite period . . . He is making every effort to remain here; he has applied for refugee status; he has launched or is about to launch court proceedings in order to review and set aside the refusal to grant him such status. In this regard it cannot be said that his application for review has no reasonable prospects of success . . . There is further nothing to refute plaintiff’s assertion that he has the intention to settle here indefinitely if permitted.365

There have also been developments on the understanding of the requisite intention that work in favor of refugee autonomy. First, involuntary arrival in a country does not mean that the required intention to remain in a country cannot subsequently emerge. Under the notion of a “domicile of choice,” the jurisprudence accepts that if the refugee can provide circumstantial evidence of the emergence of a voluntary intention to remain despite the involuntary basis of his or her arrival, domicile may be established.366 Indeed, the intention may change over time: 362 363

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Mark v. Mark, [2005] UKHL 42 (UK HL, June 30, 2005), at [48]–[49]. “It is not, as a matter of law, necessary that the residence be long in point of time: residence for a few days or even for part of a day is enough. Indeed, an immigrant can acquire a domicile immediately upon his arrival in the country in which he intends to settle”: Collins, Dicey (2019), at 143. “To establish domicile . . . the husband must satisfy the Court on the balance of probabilities that he formed the intention to reside indefinitely in Australia coincidentally with his lawful presence here . . . [A] domicile of choice may be acquired even though the legality of a person’s presence may vary over time provided that lawful presence coincides at some point with the requisite intention”: Shao-Qi Wu and Leah Rechel Wu, [1994] Fam. CA 45 (Aus. FC, May 3, 1994), at [6]. Alam v. Minister of Home Affairs, [2012] ZAECPEHC 22 (SA HC, Feb. 16, 2012). “The expressions ‘voluntary’ and ‘of free choice’ . . . certainly do not mean that the de cujus must be shown to have been unaffected by compelling reasons of a kind that could dictate the course of his conduct. Dr. Cheshire correctly points out . . . that it cannot be said that a man’s residence is not voluntary, and therefore not sufficient to constitute domicile, if it originated in inexorable necessity”: Armstead v. Armstead, [1954] Vic LR 733 (Aus. Vic. SC, Sept. 3, 1954), at 734.

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It is clear in my judgment that the intention does not have to be shown to have been immutable. It would be rarely that a man can be shown to have set up his home in a new country with the intention that his decision to live there and make his home there should be irrevocable.367

It follows that if when a refugee first arrives she has no intention to remain but subsequently develops that intention – however quickly or slowly – domicile allows an immediate adjustment of the point of reference for rights at whatever time that new intention emerges. It thus facilitates a quick and flexible validation of the refugee’s intentions. Second, it is generally understood that “domicile” may be established without showing an intention to remain permanently. It is rather enough to show an intention to remain indefinitely even if the possibility of continued residence is contingent on external factors – precisely the case for most refugees.368 This means that so long as the refugee intends to stay in the asylum country on an ongoing, indefinite basis he can establish his domicile there. There is no need to make a definitive “I will never leave” sort of decision. Third and related, many courts interpreting domicile have rejected the old approach that held that if there was an intention to return upon some specific contingency then there was no domicile (because the intent to remain was lacking). There is instead now support for the view that if the contingency cannot reasonably be anticipated it may be too vague to overcome other evidence of an intention to remain in the asylum country, thus allowing domicile to be established.369 In truth, the application of this doctrine to refugees is not entirely clear since for many refugees the contingency – the restoration of protection in the home country – is clear, even if the likelihood 367

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Inland Revenue Commissioners v. Bullock, [1976] 1 WLR 1178 (Eng. CA, June 25, 1976), at 1184. The US Supreme Court opined more than 100 years ago the view that “[t]he requisite animus is the present intention of permanent or indefinite residence in a given place or country, or, negatively expressed, the absence of any present intention of not residing there permanently or indefinitely”: Gilbert v. David, (1915) 235 US 561 (US SC, Jan. 5, 1915), at 569, adopting the language of Price v. Price, 156 Pa. St. 617 (US SCPa, July 18, 1895), at 626. The traditional approach to domicile nonetheless included a rebuttable presumption that the involuntary arrival of refugees meant that they did not intend to reside indefinitely in the asylum country: In re Evans, [1947] Ch 695 (Eng. ChD, July 9, 1947). “[T]he testator’s hope was that he could go on living his accustomed and very pleasant life . . . to the end of his days . . . The only circumstance on the happening of which he expressed any intention of leaving England was if he was no longer able to live an active life on the farm . . . But that contingency is altogether indefinite. It has no precision at all . . . [T]he vagueness of the notion, coupled with the fact that the testator’s mode of life was wholly congenial to him, is such that one must be left in the greatest doubt whether, in the end, it had any reality in the testator’s mind at all”: Furse v. IRC, [1980] 3 All ER 838 (Eng. ChD, July 7, 1980), at 846.

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of its eventuation is not. Yet as Dicey points out, the flexibility of “domicile” still seems to validate refugee intentions:370 If a political refugee intends to return to the country from which he fled as soon as the political situation changes, he retains his domicile there unless the desired political change is so improbable that his intention is discounted and treated merely as an exile’s longing for his native land; but if his intention is not to return to that country even when the political situation has changed, he can acquire a domicile of choice in the country to which he has fled.371

Yet even as the drafters chose a connecting factor – domicile – that clearly facilitates the ability of refugees to align their personal status with the rules of the asylum country, they were equally clear that it would be wrong to impose such a realignment on refugees. Because the goal was simply to enable refugees quickly to have their personal status assessed by reference to asylum country norms if that was in line with their intentions, the drafters included a second paragraph – Art. 12(2) – that enables a refugee to opt to continue to have his or her personal status determined by reference to the rules of his or her country of origin.372 Under this provision, “[r]ights previously acquired by a refugee and dependent on personal status, more particularly rights attaching to marriage, shall be respected by a Contracting State.” Two matters were of particular concern. First, it was felt “undesirable to modify without reason the capacity of married women or the matrimonial regime.”373 To the extent that the position of women in the country of origin was superior to that which prevailed in the asylum state, application of the general rule of Art. 12 (that is, determination of personal status on the basis of the rules of the country of domicile) might result in a deprivation of acquired rights:

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Intentions are not, however, the same as desires. So for example in the case of a Greek Cypriot who fled to the UK after the Turkish invasion of his country and who lived in the UK for some fifty years, it was held that “[o]f his attachment to, his love for, Cyprus, there is no doubt. That his truly free choice, looking back over 50 years, would not have been to live [in the UK] for most of his life, there is also no doubt. My judgment is that his intentions, as his behaviour, adapted over time to his circumstances”: Cyganik v. Agulian, [2005] EWHC 444 (Eng. ChD, Mar. 23, 2005), at [91]. Collins, Dicey (2019), at 156–157. “Paragraph 2 is the result of the generally accepted validity of ‘acquired (or vested) rights’ which ought not be disturbed”: Robinson, History, at 103. Secretary-General, “Memorandum,” at 26. See also Statement of Mr. Weis of the International Refugee Organization, UN Doc. E/AC.32/SR.36, Aug. 15, 1950, at 8: “[P]aragraph 2 provided for exceptional treatment for refugees in a very narrow field . . . The paragraph as a whole mainly concerned property rights connected with marriage, in respect of which it would be difficult for refugees to comply with the law of their country of domicile.”

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At the time of their marriage these women may have been residing in their country of origin and have possessed the nationality of that country. In many cases, under their national law, marriage did not diminish their capacity but required the complete separation of the property of each spouse. Having become [a refugee] and being resident in a reception country the law of which restricts the capacity of married women and, where there is no marriage contract, requires the married couple to observe a matrimonial regime differing from that of separate estate, a woman in this position often finds her rights actually disputed.374

Second, the French representative voiced his desire to ensure respect for spousal rights resulting from “the acts of religious authorities to whom refugees were amenable, if performed in countries admitting the competence of such authorities.”375 If only secular marriage were authorized in the asylum state, a refugee couple might find that its union was not recognized there. In each case, there was agreement that it would be inappropriate to allow the operation of the general rule in Art. 12(1) to force the refugee to give up his or her status-based acquired rights.376 In a fundamental sense, then, Art. 12(2) goes a substantial distance toward meeting the view that greater deference should be paid to the preferences of the refugees themselves about how their personal status should be determined.377 While not allowing refugees to elect the basis upon which their personal status is decided, Art. 12 read as a whole will often give refugees the best of both worlds. For example, a woman who 374 375 376

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United Nations, “Statelessness,” at 25. Statement of Mr. Rain of France, UN Doc. E/AC.32/SR.9, Jan. 23, 1950, at 14. Paragraph 2 of Art. 12 expressly exempts “[r]ights previously acquired by a refugee and dependent on personal status, more particularly rights attaching to marriage [emphasis added].” While less explicit than the Secretary-General’s original draft (which set out that “rights attaching to marriage” included “matrimonial system, legal capacity of married women, etc.”: Secretary-General, “Memorandum,” at 24), the deletion of the explanatory language was without any evident substantive effect: Statement of Mr. Robinson of Israel, UN Doc. E/AC.32/SR.9, Jan. 24, 1950, at 15. Moreover, when the American representative suggested the deletion of the explicit reference to marital rights altogether, the Chairman successfully argued “that those rights were indeed of particular importance and that special reference should be made to them”: Statement of the Chairman, Mr. Chance of Canada, ibid. On the question of marital rights acquired by virtue of a religious ceremony, the drafting history records that “[t]he Chairman explained, after consultation with the representative of the Assistant Secretary-General, that the Secretariat had considered that the provisions of [paragraph 2] covered all acquired rights including those resulting from the acts of religious authorities to whom the refugees were amenable, if performed in countries admitting the competence of such authorities”: Statement of the Chairman, Mr. Chance of Canada, ibid. at 14. The French representative thereupon withdrew his amendment that would have explicitly made this point, “not because there was any intention to rescind those provisions but because they were covered by the general terms of . . . the Secretariat draft”: Statement of Mr. Rain of France, ibid. at 15. The case for a “people-centered” approach is thoughtfully advanced in Verhellen, “CrossBorder Portability.”

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comes from a country where the separate legal identity of women is not recognized is entitled under Art. 12(1) to claim the benefit of a more progressive status regime in her new country of domicile. But if the status of women is inferior in the domicile state to that which prevailed in her state of origin, she may nonetheless invoke Art. 12(2) to insist on respect for rights previously acquired under the more favorable regime. In its original form, the savings clause set out in Art. 12(2) would have applied broadly to “[r]ights acquired under a law other than the law of the country of domicile.”378 On the suggestion of the Belgian representative,379 and taking account of the British delegate’s insistence that the more limited goal of Art. 12(2) was to ensure that “an individual’s personal status and acquired rights before he became a refugee should be respected,”380 the Second Session of the Ad Hoc Committee amended the text to refer to rights “previously acquired.”381 The essential concern was that while refugees should not be forced to forfeit status-based rights acquired prior to their admission to their new state of domicile, asylum states should not be obligated to respect any rights acquired by a refugee who might choose to leave his or her new domicile state temporarily in order to acquire rights not available in that country. This point was expressly canvassed during debate on a (subsequently deleted) paragraph which stipulated that “[w]ills made by refugees . . . in countries other than the reception country, in accordance with the laws of such countries, shall be recognized as valid.”382 While the explanatory comment on the paragraph made clear that its purpose was to preserve the legal force of wills made by the refugee pre-departure to seek asylum, but which had not been amended to conform to the specific requirements of the state of reception,383 the Belgian delegate observed that there might well be a conflict between the text itself and its principled objective: Thus in the case of a Polish refugee who had spent some time in Germany and had then taken up permanent residence in Belgium, a will made in Poland would, according to the comment, be valid in Belgium, whereas according to [the text] it would be valid if it had been made either in Poland or in Germany.384 378 379 380 381 382 383

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Secretary-General, “Memorandum,” at 24. Statement of Mr. Herment of Belgium, UN Doc. E/AC.32/SR.36, Aug. 15, 1950, at 4. Statement of Sir Leslie Brass of the United Kingdom, ibid. at 8. Ad Hoc Committee, “Second Session Report,” at 17. Secretary-General, “Memorandum,” at 24. “It frequently happens that refugees have made a will in their country of origin in accordance with the provisions of the law of that country and are convinced that the will they brought away with them remains valid. The will may not however conform to the rules as regards form and substance of the country of residence. As a result, persons who believe they have taken the necessary steps to protect the interests of their next of kin die intestate”: ibid. at 26. Statement of Mr. Cuvelier of Belgium, UN Doc. E/AC.32/SR.9, Jan. 24, 1950, at 17.

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In the discussion that followed, the essence of the Belgian delegate’s concern was recognized. But it was made clear that the key question was temporal, not jurisdictional. Mr. Larsen of Denmark, for example, considered that it was reasonable to include in the article relating to the personal status of refugees a provision guaranteeing the validity of wills made by them before their arrival in the countries which became their country of domicile or residence. On the other hand, he did not see why that provision should be drafted so as to grant the refugees, after their arrival in the country of domicile or of residence, the privilege of making wills in other countries in accordance with the laws of those countries and of having those wills recognized as valid in the reception countries; privileges of that nature were never granted to aliens and there was consequently no reason why they should be given to refugees [emphasis added].385

Similarly, the Chairman and the French representative affirmed that the focus should be on whether the will had been drawn up prior to arrival in the asylum country, regardless of where it had been drawn up.386 A purposive interpretation of Art. 12(2) would thus safeguard status-based rights acquired prior to arrival in the asylum country, whether in the refugee’s state of origin or in any intermediate country. The decision to delete a specific textual reference to the continuing validity of wills made by refugees before arrival in the asylum state was reached for two reasons.387 On the one hand, it was felt that there was no need to affirm the legality of wills simply because the formalities of their execution abroad did not correspond with those of the domicile state.388 As the Belgian representative 385

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Statement of Mr. Larsen of Denmark, ibid. at 17. See also Statement of Mr. Rain of France, ibid. at 19: “A refugee who had made a will in his country of origin or in transit thought that his will was valid . . . That was what the text said; that was, in fact, what should be said. The only amendment necessary was to make it clear that the provision applied to wills made before arrival in the country of reception [emphasis added].” “[I]f the provision were made only for wills drawn up in the country of origin, [the paragraph] would be of academic interest only; there was every reason to believe that the country of origin would not be prepared to allow the heirs to take possession of the property left to them, even if it was still in existence”: Statement of the Chairman, Mr. Chance of Canada, ibid. at 19. It is important to note, however, that “the vote in favour of the deletion of the reference to wills should not be interpreted as weakening in any way the force of the paragraph . . . dealing with acquired rights”: Statement of Mr. Rain of France, UN Doc. E/AC.32/SR.10, Jan. 24, 1950, at 4. In response, “[t]he Chairman confirmed Mr. Rain’s interpretation of the vote. The reference to wills had been deleted because it would entail conflict with domestic law. The courts of reception countries could be relied upon to deal fairly with refugees in the matter”: Statement of the Chairman, Mr. Chance of Canada, ibid. “[T]here seemed to be general agreement regarding the validity of wills made by refugees in their country of origin in so far as the form was concerned”: Statement of Mr. Cuvelier of Belgium, ibid. at 3.

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observed, “if the only purpose of [the provision] was to recall the principle locus regit actum, the paragraph was wholly unnecessary, inasmuch as the principle was generally recognized and respected.”389 Conversely, there was no agreement to honor refugee wills executed prior to arrival to the extent that they contained substantive provisions contrary to the laws of the asylum state.390 The British representative “feared that the proposal would actually permit the refugee, by his will, to alter the law of the reception country. For example . . . a refugee residing in England could, by means of a will made in his country of origin, tie up property in England in perpetuity.”391 The example provided by the Danish delegate was perhaps more poignant: “Some countries, such as Denmark, did not allow the testator to disinherit his children; the children must be assured of their rightful share, and the testator could dispose freely of the remaining portion only. Other countries, such as the United Kingdom, allowed the testator to dispose of the whole of his estate as he pleased.”392 In the end, the drafters acknowledged only a commitment in principle to encourage courts in asylum countries “wherever possible, [to] give effect to the wishes of the [refugee] testator.”393 On matters of substance, however, most states felt that the substantive validity of refugee wills should be subject to the usual legal and public policy concerns taken into account by the asylum country.394 Indeed, the drafters agreed to a public policy limitation on the duty to honor the previously acquired status-based rights of refugees. Following from the debate about refugee wills, it was agreed by the Ad Hoc Committee “that the 389

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Statement of Mr. Cuvelier of Belgium, UN Doc. E/AC.32/SR.9, Jan. 24, 1950, at 18. The Secretariat had, in fact, suggested that this was the sole purpose of the paragraph. “[T]he Secretariat had intended to refer to the form of a will rather than to its provisions. For example, the will of a Russian refugee in France would be recognized as valid with respect to form; the validity of its provisions, however, would have to be determined according to local law or, in the case of landed property, according to the law of the country in which the property was situated”: Statement of Mr. Giraud of the Secretariat, ibid. In fact, however, the explanatory notes to the draft under consideration make clear that the paragraph was intended to safeguard refugee wills “as regards form and substance”: Secretary-General, “Memorandum,” at 26. “A will drawn up in the country of origin might contain clauses which were not in conformity with the laws of the country of residence, particularly those dealing with public order”: Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.10, Jan. 24, 1950, at 2. Statement of Sir Leslie Brass of the United Kingdom, ibid. at 3. Statement of Mr. Larsen of Denmark, UN Doc. E/AC.32/SR.9, Jan. 24, 1950, at 17. Ad Hoc Committee, “First Session Report,” at Annex II. “The Chairman, speaking as the representative of Canada, acknowledged that the Government of the reception country would have to make some derogation to domestic law, thus placing the refugee in a favoured position. It might therefore be wiser to delete [the specific reference to refugee wills]”: Statement of Mr. Chance of Canada, UN Doc. E/ AC.32/SR.10, Jan. 24, 1950, at 3. The provision was thereupon deleted by a vote of 7–2 (2 abstentions): ibid.

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article did not require rights previously acquired by a refugee to be recognized by a country if its law did not recognize them on grounds of public policy or otherwise. It had been decided that the provisions of the article were in any case subject to that general reservation, which was implied and need not therefore be written into it.”395 The Conference of Plenipotentiaries, however, decided to make the public policy limitation explicit. Mr. Hoare of the United Kingdom proposed that the phrase, “provided the right is one which would have been recognized by the law of that State had he not become a refugee,”396 be added to Art. 12(2). This amendment would meet his concern “that States should not be required to respect rights previously acquired by a refugee when they were contrary to their own legislation. A State could not protect a right which was contrary to its own public policy.”397 The specific example considered by the Conference was “the position of a divorced refugee who had obtained his divorce in a country the national legislation of which recognized divorce, but [who] was resident in a country, like Italy, where divorce was not recognized.”398 It was agreed that the asylum country could not reasonably be asked to issue documentation certifying the divorce, since “if a particular country did not recognize divorce, it could not possibly issue a certificate authenticating such a status . . . [T]he right [must be] one which would have been recognized by the law of the particular State had the person in question [not] become a refugee.”399 This may be technically right, since Art. 12(2) requires only respect for previously acquired, status-based rights, not an affirmative duty to certify such entitlements.400 395

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Statement of Sir Leslie Brass of the United Kingdom, UN Doc. E/AC.32/SR.41, Aug. 23, 1950, at 8. See also Statement of Mr. Weis of the International Refugee Organization, UN Doc. E/AC.32/SR.36, Aug. 15, 1950, at 9: “He wondered whether . . . rights [should be made] dependent not only on compliance with the formalities prescribed by the law of the country of domicile but also on the [exigencies] of public order.” Statement of Mr. Hoare of the United Kingdom, UN Doc. A/CONF.2/SR.25, July 17, 1951, at 4. Statement of Mr. Hoare of the United Kingdom, UN Doc. A/CONF.2/SR.7, July 5, 1951, at 13. See also Statements of Mr. Schurch of Switzerland, ibid. at 12: “Swiss law recognized acquired rights, but only subject to provisions concerning public order”; and the President, Mr. Larsen of Denmark, ibid. at 15: “It was essential to make some provision ensuring that such rights did not conflict with the legislation of the country in which the refugee became domiciled.” Statement of Mr. Rochefort of France, UN Doc. A/CONF.2/SR.25, July 17, 1951, at 4–5. Statement of Mr. Hoare of the United Kingdom, ibid. at 5. Of more concern, however, the Belgian and French representatives opined that “[t]he purpose of the United Kingdom amendment was to place refugees on the same footing as aliens in respect of rights dependent on personal status . . . [I]n the case cited by the French representative the courts of the receiving country would have to decide whether they would have recognized a divorce granted in the same circumstances to two aliens who were not refugees”: Statement of Mr. Herment of Belgium, ibid. at 5–6. See also Statement of Mr. Rochefort of France, ibid. at 6. While the context of the remark suggests a more limited purport (“[I]n principle States which forbad divorce did so only to their own

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The final requirement for reliance by a refugee on Art. 12(2) is that he or she comply, “if this be necessary, with the formalities required by the law of [the contracting] State.” This requirement was in the original draft of the Convention, and mirrors the precedents of the 1933 and 1938 Refugee Conventions.401 The essential purpose of this requirement is “to protect the interests of third parties.”402 Robinson suggests, for example, that “the law of the country in which recognition is sought may prescribe that foreign adoptions have to be confirmed by [a] local court or that the special matrimonial regime (separation of property or the right of the husband to administer the property of his wife) be registered in certain records.”403 This requirement is thus not a substantive limitation on the scope of Art. 12(2) rights, but merely an acknowledgment that a refugee’s previously acquired rights are not immune from the asylum state’s usual requirements to register or otherwise give general notice of the existence of rights as a condition precedent to their invocation. In sum, Art. 12 of the Convention should be interpreted in a way that maximizes the autonomy of refugees. By mandating the adoption of the flexible notion of domicile rather than either nationality or habitual residence as the presumptive connecting factor for defining personal relationships, the Convention codifies a rule that pays maximum deference to what the individual refugee himself or herself actually intends. And because that general rule is

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nationals. It was solely for reasons of public order that a State might decide not to recognize divorces between foreigners or not to authorize them to divorce in its territory”: Statement of Mr. Herment of Belgium, ibid. at 5), the comment as stated cannot be reconciled to the text of Art. 12, read as a whole. The essential reason for Art. 12 is precisely to exempt refugees from the rules ordinarily applying to (non-refugee) aliens (see Weis, Travaux, at 107: “The main intent of the provision is, indeed, to subtract the refugee from the application of the law of the country of his nationality, considering that they have left that country and that that law may have undergone changes with which the refugees do not agree”), not to assimilate them to aliens. And while the British amendment – which was unfortunately not discussed further before being approved by the Conference (see UN Doc. A/CONF.2/SR.25, July 17, 1951, at 9) – was clearly intended to authorize state parties to refrain from the recognition of forms of previously acquired status which were “contrary to its own public policy” (Statement of Mr. Hoare of the United Kingdom, UN Doc. A/CONF.2/SR.7, July 5, 1951, at 13), there is absolutely no basis to assert that its goal was to undermine the already agreed, essential goals of Art. 12. Thus, a reception state which does not recognize divorce as a matter of public law or policy cannot be compelled by virtue of Art. 12(2) to recognize a refugee’s rights flowing from divorce. If, on the other hand, the reception state has no domestic impediment to divorce, but refrains for policy reasons from recognizing the rights following from the divorce abroad of non-citizens, it would nonetheless be required by Art. 12(2) to recognize the rights of refugees accruing from divorce. In essence, the only legal or public policy concerns which are relevant to Art. 12(2) are those which apply generally in the reception state, not those which apply to noncitizens or a subset thereof. Robinson, for example, suggests that “rights resulting from polygamy in a country where it is prohibited” (Robinson, History, at 103) could legitimately be resisted under the public policy exception to Art. 12(2). Secretary-General, “Memorandum,” at 26. 402 Ibid. 403 Robinson, History, at 104.

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subject to a savings clause allowing a refugee to opt instead to have personal status assessed by reference to previously acquired rights, there is little risk that the need to seek protection will strip the refugee of status-based rights of importance to him or her.

3.3 Exceptional Standards of Treatment Where refugee rights are guaranteed in the Convention only at the baseline level of assimilation to aliens generally – rights to internal freedom of movement, property, self-employment, professional practice, housing, and postprimary education404 – the net value of the Refugee Convention may indeed be minimal. For the most part, states are required to grant these rights to refugees only to the extent they have freely chosen to extend comparable entitlements to other admitted aliens. Conversely, if only citizens or mostfavored foreigners (or no non-citizens at all) are entitled to these rights, they may legitimately be denied to refugees. As the American representative to the Ad Hoc Committee succinctly observed, “when the Convention gave refugees the same privileges as aliens in general, it was not giving them very much.”405 The major caveat to this conclusion follows from the fact that the general standard of treatment under Art. 7(1) incorporates by reference all general norms of international law.406 As noted above, this means that general principles both of international aliens law and of international human rights law accrue automatically to the benefit of refugees.407 International aliens law adds to the baseline standard of treatment at least in a negative sense: while refugees need not be granted the right to acquire private property, their legitimately acquired property may not be taken from them without adequate compensation.408 As there is still no agreement on the codification of an affirmative right to own private property as a matter of international human rights law, even this modest protection is of some value.409 In most cases, the greatest value of general norms of international human rights law is in supplementing the content of refugee rights defined at the “aliens generally” standard of treatment. For example, the Civil and Political Covenant guarantees freedom of internal movement to “everyone” lawfully 404 405

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See Chapter 3.2.1. Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.37, Aug. 16, 1950, at 7. To similar effect, Art. 5 of the Convention provides that “[n]othing in this Convention shall be deemed to impair any rights and benefits granted by a Contracting State to refugees apart from the Convention,” thereby incorporating by reference for example standards of international human rights law, which generally apply to all persons subject to a state’s jurisdiction: see Chapter 1.4.5. See Chapter 3.2.1. 408 See Roth, Minimum Standard, at 134 ff. The right of refugees to protection of property is discussed at Chapter 4.5.1.

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within a state’s territory, subject only to specific types of limits applied on a non-discriminatory basis.410 By virtue of Art. 7(1) of the Refugee Convention, once refugees are lawfully present – that is, once they have been admitted to a status verification procedure, placed in a temporary protection regime, or authorized de facto to remain without investigation of their need for protection411 – any continuing constraints on internal freedom of movement must thereafter be justified by reference to the standards of the Civil and Political Covenant.412 Similarly, the other four refugee rights defined at the “aliens generally” baseline standard of treatment – rights to self-employment, professional practice, housing, and secondary and higher education – are the subject of cognate rights in the Economic, Social and Cultural Covenant.413 At least in developed states,414 the incorporation by reference of these norms under Art. 7(1) of the Refugee Convention means that the rights must be guaranteed on the terms set by the Covenant to refugees without discrimination.415 Happily, most rights in the Refugee Convention are not extended to refugees just at the baseline standard, but at a higher standard: on par with the rights extended to most-favored foreigners, to the same extent granted citizens of the asylum state, or simply in absolute terms. Where a right is defined to require treatment at any of these higher levels, protections beyond the general standard accrue to refugees.416 By explicitly requiring states to meet an 410

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Civil and Political Covenant, at Arts. 12 and 2(1). As previously noted, aliens have been held by the Human Rights Committee to benefit from protection against discrimination on the grounds of “other status”: see Chapter 1.5.5 at note 462. See Chapter 3.1.3. The right of refugees to enjoy internal freedom of movement is discussed at Chapters 4.2.4 and 5.2. Economic, Social and Cultural Covenant, at Arts. 6(1), 11(1), and 13(2)(b). As discussed above, because the Economic, Social and Cultural Covenant authorizes less developed states to withhold economic rights from non-citizens the dilemma for the majority of refugees who are protected in such states may be real: see Chapter 1.5.4 at note 432 ff. The broad margin of appreciation afforded states under prevailing notions of nondiscrimination law remains problematic, however: see Chapter 1.5.5 at note 484 ff. “[A] distinction should be made between the clause relating to exemption from reciprocity and the provisions of some articles which specified whether refugees should be accorded the most favorable treatment or be subject to the ordinary law. Where such provisions were set forth in an article there was no need to invoke the clause on exemption from reciprocity. It was obvious, in fact, that where refugees were accorded the most favorable treatment there would be no point in invoking the clause respecting exemption from reciprocity”: Statement of Mr. Giraud of the Secretariat, UN Doc. E/AC.32/SR.11, Jan. 25, 1950, at 5–6. The representative of the United Kingdom took the lead on this issue, noting that he “did not see how there could be any question of a reciprocity provision applying except in cases where the treatment of the refugee was to be the same as that accorded to foreigners generally”: Statement of Sir Leslie Brass of the United Kingdom, UN Doc. E/ AC.32/SR.23, Feb. 3, 1950, at 4–5. This led the Chairman to observe that “the draft

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exceptional standard of treatment, the Convention requires that refugees benefit from treatment superior to that enjoyed by aliens generally.417 Indeed, the pervasive incorporation of these exceptional standards of treatment means that the Refugee Convention is in many ways at least as generous as – and in some cases, more generous than –earlier refugee conventions which relied simply on a waiver of requirements of reciprocity for refugees.418 Chetail thus correctly observes that “the recurrent referral back to states parties’ domestic laws is both a major specificity of the [Refugee] Convention and the guarantor of its effectiveness.”419

3.3.1 Most-Favored-National Treatment Two rights in the Refugee Convention – the rights to freedom of non-political association420 and to engage in wage-earning employment421 – are guaranteed to refugees to the same extent enjoyed by most-favored foreigners.422 This means that refugees may automatically claim the benefit of all guarantees of

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proposed by the United Kingdom representative accurately stated what was in the minds of the Committee members and he would therefore invite them to accept it”: Statement of the Chairman, Mr. Chance of Canada, ibid. at 6. See e.g. Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.36, Aug. 15, 1950, at 11: “His delegation believed that refugees should be treated better than other aliens in some respects, and that the provisions in the draft Convention which accorded better treatment to refugees than to aliens were not of such major importance as to create grave problems for many countries. Therefore, if it could be agreed that in general a minimum treatment should be accorded to refugees and that that treatment should be no worse than that given to aliens in general, and that in some respects the refugees should even have certain advantages, the articles could safely be left to the Drafting Committee.” See Chapter 3.2.2 at note 266. V. Chetail, “Are Refugee Rights Human Rights? An Unorthodox Questioning of the Relations between Refugee Law and Human Rights Law,” in R. Rubio-Marin ed., Human Rights and Immigration 19 (2014) (Chetail, “Are Refugee Rights Human Rights?”), at 42. Chetail regrettably overclaims by then suggesting that “[a]ccordingly, and contrary to conventional wisdom, there exist as many refugee statuses as states parties to the [Refugee] Convention, insofar as the content of the applicable standards to aliens and nationals is primarily determined by the legislation of each individual state”: ibid. This view confuses refugee status with refugee rights, the former being non-variable. The logic of the variability of rights, however, follows from Chetail’s general observation that contingent refugee rights are a major “guarantor of [the treaty’s] effectiveness,” in that it does not impose on states duties beyond their capacities. In any event, it is not the case that the content of refugee rights is determined “primarily . . . by the legislation of each individual state” since core rights are in fact defined in absolute terms (see Chapter 3.3.3) and others may be based on de facto attribution, rather than simply on the basis of legislation. The rights of refugees to freedom of expression and association are discussed at Chapter 6.5. The right of refugees to engage in wage-earning employment is discussed at Chapter 6.1. Refugee Convention, at Arts. 15, 17(1).

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associative freedom and to engage in employment extended to the nationals of any foreign state. Refugees may nonetheless still be granted less favorable treatment in relation to these rights than that enjoyed by citizens of the host country, subject to the requirements of non-discrimination law.423 As earlier observed, governments were not prepared routinely to assimilate refugees to the citizens of states with which they had special economic or political relationships.424 There was a general belief, however, that the right to work (and the related right to freedom of association, particularly to join trade unions) warranted treatment at this standard. In proposing that refugees enjoy preferred access to the right to work, the French representative observed that it was legitimate and desirable to accord the most favourable treatment to refugees to engage in wage-earning employment, and not only the treatment accorded to foreigners generally, because refugees by their very nature were denied the support of their Governments and could not hope for governmental intervention in their favour in obtaining exceptions to the general rule by means of conventions. France was thus merely being faithful to the spirit which had heretofore guided United Nations action in favour of refugees: the purpose of that action was to obtain for refugees the advantages which Governments sought to have granted to their own subjects.425

As the American representative to the Ad Hoc Committee put it, “without the right to work, all other rights were meaningless.”426 The Committee therefore agreed to break with precedent,427 and based the Convention’s right to work on a French proposal that refugees be granted “the most favourable treatment given to nationals of a foreign country.”428 Governments accepted this exceptional standard of treatment with clear awareness of the impact of their decision. In its comments on the Ad Hoc Committee’s draft, for example, Austria recognized that the standard amounted to a “most favoured nation clause” that would require that “hundreds of thousands of refugees” be assimilated to the “relatively small” number of foreigners traditionally granted most-favored-national access to 423 425 426

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See Chapter 1.5.5. 424 See Chapter 3.2 at note 249. Statement of Mr. Rain of France, UN Doc. E/AC.32/SR.13, Jan. 26, 1950, at 2. Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.37, Aug. 16, 1950, at 12. “[T]he text proposed by the French delegation represented an advance upon the provisions of previous conventions . . . While it was understandable that some delegations should hesitate to accept the innovation . . . it would be surprising if the Committee should wish to retreat from the results obtained by the previous Conventions, and to end with a text which would contribute nothing towards the improvement of the conditions of the refugee”: Statement of Mr. Cuvelier of Belgium, UN Doc. E/AC.32/SR.13, Jan. 26, 1950, at 8–9. France, “Draft Convention,” at 6.

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employment.429 The United Kingdom commented that this standard would mean that refugees would be allowed to work as steamship pilots, a job traditionally reserved for British and French citizens.430 Belgium insisted that it would be forced to enter a reservation to the article “in view of the economic and customs agreements existing between Belgium and certain neighbouring countries.”431 Norway indicated that it, too, would have to reserve on the exceptional standard of treatment because of “the regional policy of the Scandinavian countries in respect of the labor market.”432 The inevitability of reservations notwithstanding,433 the President of the Conference of Plenipotentiaries appealed to states to “seek the golden mean, and, if possible, by precept and example, to encourage others to withdraw their reservations at a later stage. If the Conference worked along those lines he believed it might be possible to arrive at a just and effective instrument.”434 In the end, the Conference rejected the two extremes – assimilation of refugees to nationals,435 and treatment at the residual standard of the rights of aliens 429 430

431 432 433

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United Nations, “Compilation of Comments,” at 43. Ibid. at 44; Statement of Sir Leslie Brass of the United Kingdom, UN Doc. E/AC.32/SR.13, Jan. 26, 1950, at 14. Statement of Mr. Herment of Belgium, UN Doc. A/CONF.2/SR.9, July 6, 1951, at 8. Statement of Mr. Anker of Norway, ibid. at 14. As observed by the Chairman of the Ad Hoc Committee, “[i]t had, of course, been realised that the inclusion of provisions which, without representing ideals to strive for, were too generous for some Governments to accept, would lead to their making reservations, but it had been thought that such a course might in the long run have a good effect even on Governments which felt themselves unable to accord the treatment prescribed in the Convention immediately upon signing it. Other such cases had arisen in the past where refugees and those who had the interests of refugees at heart had addressed appeals to Governments applying low standards, pointing to the higher standards applied by other Governments, and so had gradually produced an improvement in their policies”: Statement of the Chairman, Mr. Larsen of Denmark, UN Doc. E/AC.32/SR.37, Aug. 16, 1950, at 11–12. In fact, in addition to the six states (Austria, Botswana, Burundi, Iran, Latvia, and Sierra Leone) that have reserved Art. 17 in its entirety, seventeen others have rejected the most-favored national standard of treatment (Angola, Belgium, Brazil, Cabo Verde, Denmark, Finland, Ireland, Luxembourg, Malawi, Netherlands, Norway, Portugal, Spain, Sweden, Uganda, Zambia, and Zimbabwe): https://treaties.un.org, accessed Dec. 21, 2020. Yet Mr. Larsen’s optimism has been partly borne out. The reservations to Art. 17 entered by Australia, Brazil, Greece, Italy, Liechtenstein, Malta, and Switzerland have been revoked, and that entered by Papua New Guinea has been dramatically limited: ibid. Statement of the President, Mr. Larsen of Denmark, UN Doc. A/CONF/2/SR.9, July 6, 1951, at 14. As the American representative stated, it was best to “incorporate in the convention a clause providing for a real improvement in the refugees’ [right to work], even if that clause were to result in reservations which, it might be hoped, would not be very numerous or extensive”: Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/ SR.13, Jan. 26, 1950, at 8. This approach was strongly promoted by Yugoslavia, with the support of Germany. See UN Doc. A/CONF/2/SR.9, July 6, 1951, at 4–5.

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generally436 – and agreed that refugees would be entitled to engage in employment on the basis of “the most favourable treatment accorded to nationals of a foreign country in the same circumstances.”437 In addition to the relevant references made by the drafters of the Convention,438 a helpful sense of the breadth of this exceptional standard of treatment can be distilled from the text of the reservations and declarations entered by state parties which have not agreed to grant most-favored-national treatment to refugees. Critically, most-favored-national treatment includes the benefits of bilateral and multilateral arrangements with special partner states. The “preferential treatment” which the nationals of Brazil and Portugal enjoy in each other’s territory;439 the “privileges” of Danish, Finnish, Norwegian, and Swedish citizens in each of those countries;440 and the “rights which, by law or by treaty” are granted by Spain to the nationals of Andorra, the Philippines, Portugal, and Latin America are examples.441 The benefits of special regional and sub-regional arrangements are included442 – for example, the privileges enjoyed by nationals of states belonging to the East African Community and the African Union.443 More generally, most-favored-national treatment includes any privileges accorded to foreign citizens under “special co-operation agreements,”444 “commonwealthtype” arrangements,445 “agreements . . . for the purpose of establishing special conditions for the transfer of labor,”446 “establishment” treaties,447 and by virtue of any “customs, economic or political agreements.”448 Perhaps most important, the very nature of the most-favored-national standard means that it is inherently subject to evolution.449 As observed by Robinson, 436

437 438 439 440

441 442 443 445

446 448 449

“A country such as Italy . . . could definitely not consider assuring commitments regarding the employment or naturalization of foreign refugees, which could only add to the difficulties already confronting the Italian economy . . . [T]he Italian Government could do no more than allow refugees to benefit by the laws and regulations concerning work, employment, salaried professions, insurance and so on, which at the moment applied to all aliens resident in Italy”: Statement of Mr. Del Drago of Italy, ibid. at 9. Refugee Convention, at Art. 17(1). The language in Art. 15 (right of association) is the same. See text at note 428 ff. See reservations of Brazil and Portugal: https://treaties.un.org, accessed Dec. 21, 2020. See reservations of Denmark, Finland, Norway, and Sweden: ibid. Interestingly, while arrangements with Iceland are safeguarded by each of these four countries, Iceland appears not to have entered a comparable reservation with regard to the privileges of the citizens of Denmark, Finland, Norway, and Sweden: ibid. See reservation of Spain: ibid. See reservations of Belgium, Iran, Luxembourg, Netherlands, Spain, and Uganda: ibid. See reservation of Uganda: ibid. 444 See reservation of Angola: ibid. See reservation of Portugal upon acceding to the Protocol: ibid. See also reservation of Spain, safeguarding special rights with the nationals of “the Latin American countries”: ibid. See reservation of Norway: ibid. 447 See reservation of Iran: ibid. See reservations of Belgium, Iran, Luxembourg, and Netherlands: ibid. For example, in February 2001 Australia and New Zealand reduced the rights automatically afforded each other’s citizens, including new requirements for citizenship, social

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the “most favorable treatment accorded to nationals of a foreign country” is a dynamic concept: it varies from country to country, and from time to time. Every new agreement with a foreign country may create a new basis for the treatment, and the expiration of existing conventions may reduce the scope of the treatment.450

3.3.2 National Treatment Refugees are to be assimilated to citizens of the asylum state for purposes of religious freedom,451 the protection of artistic and industrial property rights,452 entitlement to assistance to access the courts (including legal aid),453 participation in rationing schemes,454 enrollment in primary education,455 inclusion in public welfare systems,456 entitlement to the benefits of labor legislation and social security,457 and for purposes of tax liability.458 This exceptional standard of treatment explicitly proscribes any attempt to justify distinctions between the treatment of refugees and the treatment of citizens, as these articles usually require that the rights afforded refugees be “the same” as those enjoyed by nationals.459 Taxes imposed on refugees may not be “other or higher than those which are or may be levied on [the host state’s] nationals in similar situations.”460 And perhaps most interesting, refugees enjoy “treatment at least as favorable as that accorded to . . . nationals”461 to practice their religion and to ensure the religious education of their children. As elaborated below, this is the only provision in the Convention premised on an explicit commitment to substantive equality between refugees and citizens.462

450 453 457 459 461 462

security eligibility, and family reunification. In 2016 they complemented that change by agreeing to ease the path to permanent residence for each other’s citizens: www.loc.gov/ law/foreign-news/article/australianew-zealand-prime-ministers-announce-agreementon-pathway-to-citizenship-for-new-zealanders/, accessed Feb. 1, 2020. Robinson, History, at 110. 451 See Chapter 4.7. 452 See Chapter 5.4. See Chapter 5.5. 454 See Chapter 4.4. 455 See Chapter 4.8. 456 See Chapter 6.3. See Chapters 6.1.2 and 6.1.3. 458 See Chapter 4.5.2. Refugee Convention, at Arts. 14, 16(2), 20, 22(1), 23, and 24(1). 460 Ibid. at Art. 29. Ibid. at Art. 4. Substantive equality may, however, be more generally required by virtue of the interaction of the Refugee Convention with Art. 26 of the Civil and Political Covenant: see Chapter 1.5.5 at note 455. In practice, steps to ensure substantive equality for refugees may be critically important, even as they may also be politically fraught. For example, an analysis of the social service response to refugees arriving in low income parts of Glasgow – predicated on no differentiation between refugees and other low income residents – showed “that some asylum seekers did have specialist needs which were not being met within the current structure of statutory service provision . . . [For example, as explained by one respondent,] ‘[s]ervices that have been there for years have been very well established for the indigenous population, and now they’re trying to slot people from other countries and cultures into these services and sometimes it’s just not appropriate . . . Not

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With the exception of the right to religious freedom, each of these rights was defined to require assimilation to citizens in the first draft of the treaty proposed by the Secretary-General in January 1950.463 The explanations provided there for requiring national treatment are instructive. In some cases, the goal was consistency with prior or cognate international law. Equality in regard to taxation had already been required by the 1933 Refugee Convention,464 and there was a pattern of bilateral and multilateral treaties, including those negotiated under the auspices of the ILO, that assimilated aliens to nationals for purposes of social security.465 There were practical reasons to grant refugees national treatment under labor legislation, namely that “it was in the interests of national wage-earners who might have been afraid [that] foreign labor, being cheaper than their own, would have been preferred.”466 Similarly, while the right of refugees to sue and be sued “in principle . . . is not challenged, in practice there are insurmountable difficulties to the exercise of this right by needy refugees: the obligation to furnish cautio judicatum solvi and the refusal to grant refugees the benefit of legal assistance make this right illusory.”467 In two cases, the importance of assimilation was cited to justify national treatment. Primary education should be available on terms of equality with nationals “because schools are the most rapid and most effective instrument of assimilation.”468 An appeal to principle was relied on to justify national treatment with regard to artistic and industrial property rights, “since intellectual and industrial property is the creation of the human mind and recognition is not a favour.”469 And finally, simple fairness was said to require the equal treatment of refugees and nationals with regard to both access to rationing and systems for public relief. Rationing regulated the distribution of items “of prime necessity,”470 and “[p]ublic relief can hardly be refused to refugees who are destitute because of infirmity, illness or age.”471 The one national treatment right added to the Secretary-General’s list is the right to religious freedom. A non-governmental representative to the Conference of Plenipotentiaries noted that “the negative principle of nondiscrimination as expressed in article 3” did not “ensure the development of

463 466 468

469

all the services that are there are appropriate’”: K. Wren, “Supporting Asylum Seekers and Refugees in Glasgow: The Role of Multi-Agency Networks,” (2007) 20(3) Journal of Refugee Studies 391, at 407. Yet politically “[a] perceived longer-term neglect of local needs has meant that the requirements of new asylum seekers have had to compete with a range of other acute needs associated with poverty and exclusion . . . [so that in political terms] ‘[y]ou can’t be seen to be making preferential treatment available to asylum seekers’”: ibid. at 406. Secretary-General, “Memorandum.” 464 Ibid. at 31. 465 Ibid. at 38. Ibid. at 37. 467 Ibid. at 30. Ibid. at 38. It was also noted that primary education “satisfies an urgent need,” in consequence of which it was already compulsory in most states: ibid. Ibid. at 27. 470 Ibid. at 38. 471 Ibid. at 39.

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the refugee’s personality.”472 It was important, he suggested, that the Convention contain a “positive definition of the spiritual and religious freedom of the refugee.”473 The delegates to the Conference agreed, noting that religious freedom conceived in affirmative terms is an “inalienable”474 right. There were nonetheless concerns that the first working draft, in which what became Art. 4 was framed as an absolute right,475 imposed too stringent an obligation on states.476 As the Canadian representative commented, “[i]t was well known that certain sects often committed in the name of their religion acts contrary to l’ordre public et les bonnes moeurs.”477 Yet it was recognized that the alternative of authorizing states to invoke regulatory or public order limits on religious freedom had, in practice, resulted in hardship for refugees. The compromise position suggested by the President of the Conference was that refugees should benefit from “the same treatment in respect of religion and religious education . . . as . . . nationals.”478 This approach was, however, rejected by the Conference. The Holy See argued that assimilation to nationals was insufficient because “in countries where religious liberty was circumscribed, refugees would suffer.”479 It was important, he said, “to guarantee refugees a minimum of religious liberty in such countries.”480 His point was not that refugees benefit from “preferential treatment” vis-à-vis citizens.481 Nonetheless, purely formal parity with nationals was not sufficient: 472

473 474

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476

477 478 479 480

481

Statement of Mr. Buensod of Pax Romana, UN Doc. A/CONF.2/SR.11, July 9, 1951, at 9–10. Ibid. at 10. Statements of Msgr. Comte of the Holy See and Mr. Montoya of Venezuela, UN Doc. A/ CONF.2/SR.30, July 20, 1951, at 11–12. “The Contracting States shall grant refugees within their territories complete freedom to practice their religion both in public and in private and to ensure that their children are taught the religion they profess”: UN Doc. A/CONF.2/94. Egypt, Luxembourg, and the Netherlands all felt that an affirmative right to religious freedom should be subject to the requirements of “national law”: Statements of Mr. Sturm of Luxembourg, Mr. Mostafa of Egypt, and Baron van Boetzelaer of the Netherlands, UN Doc. A/CONF.2/SR.30, July 20, 1951, at 11–14. Belgium and even the Holy See felt a “public order” limitation would be acceptable: Statements of Mr. Herment of Belgium and Msgr. Comte of the Holy See, ibid. at 14. Statement of Mr. Chance of Canada, ibid. at 17. Statement of the President, Mr. Larsen of Denmark, ibid. at 17. Statement of Msgr. Comte of the Holy See, UN Doc. A/CONF.2/SR.33, July 24, 1951, at 7. Ibid. The French representative agreed, but noted that such a position “had been rejected [in the Style Committee] on the grounds that Contracting States could not undertake to accord to refugees treatment more favorable than that they accorded to their own nationals”: Statement of Mr. Rochefort of France, ibid. at 7–8. The British representative bluntly observed that the Holy See’s approach might “be open to interpretation as an innuendo to the effect that the treatment of nationals in respect of religious freedom was not as liberal as it might be”: Statement of Mr. Hoare of the United Kingdom, ibid. at 8. Statement of Msgr. Comte of the Holy See, ibid. at 8.

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His sole concern was that [refugees] should be given equal treatment with nationals. It was known that, precisely on account of their position as refugees, they are frequently handicapped in the practice of their religion. It was with that consideration in mind that he had put forward his amendment.482

This argument for substantive equality led the representative of the Holy See to propose a unique standard of treatment, namely that refugees should enjoy “treatment at least as favorable as that accorded . . . nationals.”483 Governments are thus obliged not to deny refugees any religious freedom enjoyed by citizens, and moreover commit themselves in principle to take measures going beyond strict formal equality in order to recognize “that religious freedom as an abstract principle might be of little value if divorced from the practical means of ensuring it.”484

3.3.3 Absolute Rights The balance of the Refugee Convention’s substantive rights485 – that is, those defined to require treatment neither at the “aliens generally” baseline standard, nor at one of the two exceptional standards (assimilation to most-favored foreigners, or to the citizens of the asylum country) – are absolute obligations. For the most part, the decision not to set a contingent standard of treatment follows logically from the fact that there is no logical comparator group for these rights. Refugees are, for example, entitled to turn to the host country for administrative assistance, identity papers, and travel documents (because, unlike both citizens and most aliens, refugees have no national state willing to provide them with such facilities).486 Other rights follow from the unique nature of refugeehood: the right to avoid penalties for unauthorized entry, to avoid expulsion or refoulement, to the recognition of pre-existing rights based on personal status, and to take assets abroad in the event of resettlement.487 The absolute nature of the right of refugees to access the courts of state parties488 (though entitlement to legal aid and to waiver of technical requirements for access inheres in refugees only to the extent granted to citizens of the refugee’s place of residence)489 follows the precedents of international aliens 482 483 484

485

486 489

Ibid. The Conference approved this revised language 20–0 (1 abstention): ibid. at 9. Statement of Mr. Petren of Sweden, ibid. at 9. It is clear, however, that Art. 4 does not oblige governments to take specific affirmative measures to advance the religious freedom of refugees. See Chapter 4.7 at notes 2305–2307. A number of the Convention’s articles do not establish free-standing rights, but define the context within which enumerated rights must be implemented. See Refugee Convention, at Arts. 2, 3, 5–12(1), and 35–46. Ibid. at Arts. 25, 27, and 28. 487 Ibid. at Arts. 12(2), 30–33. 488 Ibid. at Art. 16(1). Ibid. at Art. 16(2). See Chapter 5.5.

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law490 and the 1933 Convention, and elicited no debate.491 While Art. 34’s provisions on the assimilation and naturalization of refugees are likewise subject to no contingency, there is really no substantive right contained in this provision. State parties are encouraged to facilitate the integration of refugees, but are under no binding duty to do so.

3.4 Prohibition of Discrimination between and among Refugees The general purpose of the legal duty of non-discrimination is to ensure “that individuals should be judged according to their personal qualities.”492 Consideration has already been given to such key questions as the differences between formal equality (“equality before the law”) and substantive equality (“equal protection of the law”); the relative importance of intention and effects in assessing whether discrimination of either kind is demonstrated; and the extent to which international law requires positive efforts to remedy unjustifiable distinctions, rather than just a duty to desist from discriminatory conduct.493 The earlier focus was on whether the broad duty of nondiscrimination – in particular, that set by Art. 26 of the Civil and Political Covenant – might actually be sufficient in and of itself to require the equal protection of refugees and other non-citizens, in which case-specific norms of aliens and refugee law might be rendered essentially superfluous. Based on a close examination of the jurisprudence of the Human Rights Committee, however, the conclusion was reached that despite its textual breadth, Art. 26 could not yet be relied upon dependably to enfranchise non-citizens.494 In particular, account was taken of the Committee’s tendency simply to accept some categorical distinctions (often including non-citizenship) as an inherently reasonable basis upon which to treat people differently; a pattern of unjustifiably broad deference to national perceptions of reasonable justification; and, in particular, only a nascent preparedness to take seriously the discriminatory effects of facially neutral laws. The conclusion was therefore reached that despite its value to counter some types of differential treatment, non-discrimination law has not yet evolved to the point that refugees and other non-citizens can safely assume that it will provide a sufficient answer to the failure to grant them rights on par with citizens. The analysis here draws on some of these same principles, but to investigate a different question. Even if many distinctions in the ways that non-citizens, including refugees, are treated relative to citizens are deemed reasonable, does 490 491

492 493

See Chapter 1.1 at note 7. “[I]n principle the right of a refugee to sue and be sued is not challenged”: SecretaryGeneral, “Memorandum,” at 30. S. Fredman, Discrimination Law (2011) (Fredman, Discrimination), at 109. See Chapter 1.5.5. 494 Ibid. at note 471 ff.

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the legal duty of non-discrimination nonetheless provide a meaningful response to more specific types of disfranchisement which may be experienced by subsets of the refugee population? To a real extent, the inappropriateness of differential allocations of rights between and among refugees is clear from the fact that the language of the Refugee Convention presupposes that whatever entitlements are held by virtue of refugee status should inhere in all refugees. In setting the refugee definition, the drafters of the Convention were at pains carefully to limit the beneficiary class. They excluded, for example, persons who have yet to leave their own country, who cannot link their predicament to civil or political status, who already benefit from surrogate national or international protection, or who are found not to deserve protection.495 Beyond these explicit strictures, however, refugees are conceived as a generic class, all members of which are equally worthy of protection.496 Yet there are in fact often significant differences in the way that particular subsets of Convention refugees are treated by states. In some cases, this is because a state plays politics with refugee protection. For many years, the United States pursued a formal policy of interdiction and routine detention of Haitian refugees, even as – for clearly political reasons – it not only allowed Cuban refugees free access to its territory, but gave them an expedited path to permanent residency in the US.497 China also has taken a politicized approach to asylum in refusing recognition to any refugee seeking protection from its North Korean ally.498 495

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498

See generally Grahl-Madsen, Status of Refugees I; and Hathaway and Foster, Refugee Status. The possibility of limiting protection to pre-1951 and European refugees has been prospectively abolished by the advent of the 1967 Refugee Protocol: see Chapter 1.5.1. “The United States has singled out Cubans and Haitians for diametrically opposite treatment. Cubans who quit their island are assisted in coming to the US, are called political refugees, and are given asylum, while Haitians who leave their island are labeled economic migrants, interdicted at sea, and returned to Haiti”: N. and N. Zucker, “United States Admission Policies Toward Cuban and Haitian Migrants,” paper presented at the Fourth International Research and Advisory Panel Conference, Oxford, Jan. 5–9, 1994, at 1. “After it was accused of discrimination, the Carter administration granted Haitians the status of ‘entrants,’ on par with Cubans; however, in mid-1981 the Reagan administration reinstated differential treatment and began incarcerating apprehended Haitians . . . [President Clinton] pledged to change the policy . . . [but he] reversed himself immediately after taking office to prevent a flood of refugees that would weaken his political base in Florida”: A. Zolberg, “From Invitation to Interdiction: US Foreign Policy and Immigration since 1945,” in M. Teitelbaum and M. Weiner eds., Threatened Peoples, Threatened Borders: World Migration and US Policy 144 (1995), at 145–146. The failure of the American judiciary to end the double standard is described in T. James, “A Human Tragedy: The Cuban and Haitian Refugee Crises Revisited,” (1995) 9(3) Georgetown Immigration Law Journal 479. “China, North Korea’s principal ally, claims it is bound by its treaty obligations to Pyongyang”: “Inside the Gulag,” Guardian, July 19, 2002, at 23. “[T]he underlying reason

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Most commonly, differentiation is based on the nationality of refugees. Israel’s designation by law of refugees arriving from sub-Saharan Africa as “infiltrators” has resulted in the long-term detention of Eritrean and Sudanese refugees.499 Yemen grants government-issued identification documents with entitlement to reside and work in the country only to Somali refugees,500

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Beijing does not welcome them, Chinese analysts say, is that it believes the fall of Communism in Eastern Europe was precipitated when Hungary allowed tens of thousands of East German refugees to pass through on their way to the West in 1989. ‘If we gave them refugee status, millions would pour over our doorstep,’ said a Chinese scholar who advises the North Korean and Chinese governments. ‘That would cause a humanitarian crisis here and a collapse of the North. We can’t afford either’”: J. Pomfret, “China Cracks Down on North Korean Refugees,” Washington Post, Jan. 22, 2003, at A-01. The UN High Commissioner for Refugees announced that “[i]n China, the plight of North Koreans who leave their country illegally remains a serious concern. For a number of years UNHCR has been making efforts to obtain access to them, but this has consistently been denied. An analysis of currently available information recently carried out by our Department of International Protection concludes that many North Koreans may well be considered refugees. In view of their protection needs, the group is of concern to UNHCR . . . [T]he principle of non-refoulement must be respected”: “UNHCR Designates North Korean Refugees as a Group of Concern,” Opening Statement by Mr. Ruud Lubbers, United Nations High Commissioner for Refugees, at the FiftyFourth Session of the Executive Committee of the High Commissioner’s Program, Geneva, Sept. 29, 2003. The enactment of the Anti-Infiltration Law “branded all sub-Saharan Africans who entered Israel from Egypt as ‘infiltrators’” and provided for their extended detention: Human Rights Watch, “Make Their Lives Miserable: Israel’s Coercion of Eritrean and Sudanese Asylum Seekers to Leave Israel” (Sept. 2014), at 21. More generally, claims by Eritrean and Sudanese asylum-seekers are rarely recognized, a result dramatically at odds with international trends. Government-issued data confirm that, of a total of 5,573 refugees from Sudan and Eritrea who submitted claims for protection between 2009 and early 2015, only four applicants (0.07%) were recognized in contrast with an international recognition rate of 87% and 56% for Eritreans and Sudanese respectively: I. Lior, “Israel has Granted Refugee Status to Only Four Sudanese and Eritrean Asylum Seekers,” Haaretz, Feb. 19, 2015. Moreover, although Israeli immigration policies resulted in dreadfully low recognition rates for refugees generally (0.25%), the statistics issued demonstrate a recognition rate over five times higher (0.37%) for refugees of all other nationalities combined than for their Eritrean and Sudanese counterparts (0.07%): ibid. “All Somali refugees receive government-issued identification documents (ID) that accord them the right to live and work in Yemen. But non-Somali refugees are not issued these or any other official identification documents; they receive only a form issued by UNHCR acknowledging that the agency has recognized them as refugees”: Human Rights Watch, “Hostile Shores: Abuse and Refoulement of Asylum Seekers and Refugees in Yemen,” Dec. 20, 2009, at 41. These problems were exacerbated by the government’s issuance of various orders to deport all non-Somali refugees. See R. Jureidini, “Mixed Migration Flows: Somali and Ethiopian Migration to Yemen and Turkey” (2010), at 77. More generally, “[i]f the security forces intercept a mixed group of Somalis and Ethiopians who have arrived together, they typically stop the group and divide them by nationality. The Somalis in the group are either let go or provided with transportation to the UNHCR-run transit point at Bab-el-Mandeb. The Ethiopians in the group are all arrested and put on a fast

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leaving Ethiopian and other refugees in destitution. India has allowed Tibetan refugees full access to employment, but limited – in some cases severely – the opportunities to earn a livelihood for refugees from Sri Lanka and, in particular, those from Bangladesh.501 Nationality-based discrimination even occurs at the most basic level of status recognition. In 2010, Australia invoked “evolving circumstances”502 to impose a blanket suspension on the processing of all protection claims from the nationals of only two countries, Sri Lanka and Afghanistan,503 leaving all “irregular maritime arrivals” from those two countries in indefinite detention.504 Sudan has recognized the refugee status of persons arriving from neighboring countries (except Chad), but has expected refugees from Arab states “to stay on an informal and unofficial basis.”505 Most egregiously, there is increasingly a determination to systematize nationality-based denials of access to protection. The European Union has gone farthest, providing by treaty that member states are ordinarily to declare any refugee claim from

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track towards deportation or refoulement”: Human Rights Watch, “Hostile Shores,” at 26, 29. Tibetan refugees have been issued certificates of identity which enable them to undertake gainful employment, and even to travel abroad and return to India. Sri Lankan refugees, in contrast, have been allowed to engage only in self-employment, while Bangladeshi refugees have not been allowed to undertake employment of any kind: B. Chimni, “The Legal Condition of Refugees in India,” (1994) 7(4) Journal of Refugee Studies 378, at 393–394. Australia, Minister for Foreign Affairs and Trade, “Changes to Australia’s immigration processing system,” Apr. 9, 2010, https://reliefweb.int/report/afghanistan/changes-austra lias-immigration-processing-system, accessed Feb. 1, 2020. Apparently issued in response to the termination of the civil war in Sri Lanka and the armed conflict in Afghanistan, the prematurity of this determination is evidenced by the fact that UNHCR had yet to issue its latest review of conditions in both countries and, more importantly, the repeated acts of violence that caused flows of refugees to continue unabated during the relevant time period: “Cynical Ploy Denies Refugee Obligations,” Canberra Times, Apr. 10, 2010. Human Rights Watch rightly criticized the order as a thinly veiled attempt to deter the arrival of refugees and highlighted the suspension of processing on the basis of nationality as “discriminatory on its face. While asylum procedures are suspended for Afghans and Sri Lankans because the situations in their countries are ‘evolving,’ asylum procedures will apparently keep apace for nationals of countries that are not evolving, including countries that have produced far fewer refugees than either Afghanistan or Sri Lanka”: Human Rights Watch, “Letter to Australian Minister of Immigration Chris Evans on Processing New Asylum Claims from Sri Lanka and Afghanistan,” Apr. 14, 2010. “Irregular maritime arrivals claiming asylum will continue to be subject to mandatory detention, including those subject to the suspension”: Australia, Minister for Foreign Affairs and Trade, “Changes to Australia’s immigration processing system,” Apr. 9, 2010, https://reliefweb.int/report/afghanistan/changes-australias-immigration-processing-sys tem, accessed Feb. 1, 2020. UN Committee on the Elimination of Racial Discrimination, “Concluding Observations of the Committee on the Elimination of Racial Discrimination: Sudan,” UN Doc. CERD/ C/304/Add.116, Apr. 27, 2001, at [15].

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a citizen of any EU country to be “manifestly unfounded.”506 The EU has also embraced the notion of so-called “safe country of origin” rules, subjecting whole refugee groups defined by nationality to truncated procedures.507 Canada emulated the EU’s approach until 2019,508 constraining the procedural rights of refugee claimants from more than forty listed countries.509 506

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“Given the level of protection of fundamental rights and freedoms by the Member States of the European Union, Member States shall be regarded as constituting safe countries of origin in respect of each other for all legal and practical purposes in relation to asylum matters. Accordingly, any application for asylum made by a national of a Member State may be taken into consideration or declared admissible for processing by another Member State only in [exceptional] cases”: Protocol on Asylum for Nationals of Member States of the European Union, annexed to the Treaty establishing the European Community, OJ 1997 C340/1, at 103 (Nov. 10, 1997) (“Aznar Protocol”). As Stern observes, “[t]he essential purpose of the [Aznar] Protocol . . . [is] to provide EU Member States a basis for refusing to accept an asylum application lodged by an EU national; a refusal based not [on] an individual assessment of the case but on political decisions in general . . . [A] majority of EU Member States appears to consider the Protocol binding and thus applies the principle set out therein”: R. Stern, “At a Crossroad? Reflections on the Right to Asylum for European Union Citizens,” (2014) 33(2) Refugee Survey Quarterly 54 (Stern, “At a Crossroad?”), at 61–62. Parliament and Council Directive 2013/32/EU of 26 June 2013 on common procedures for granting and withdrawing international protection, OJ 2013 L180/60 (“EU Procedures Directive”), at Annex I. “[F]or a claim to be expedited as ostensibly unfounded, both the listing of a country as safe and a failure to establish personal circumstances rebutting the presumption are required in the individual case. This, however, entails a higher burden of proof to be discharged by nationals of listed countries as opposed to . . . the shared burden of proof normally applicable in asylum procedures”: Asylum Information Database (AIDA), “Safe Countries of Origin: A Safe Concept?” AIDA Legal Briefing No. 3, Sept. 2015, at 9. See generally M. Hunt, “The Safe Country of Origin Concept in European Asylum Law: Past, Present and Future,” (2014) 26(4) International Journal of Refugee Law 500. “Canada was not only emulating [European safe country of origin] practices, but also, informed by the Aznar Protocol, effectively barring asylum seekers from the EU”: C. Costello, “Safe Country? Says Who?,” (2016) 28(4) International Journal of Refugee Law 601 (Costello, “Safe Country?”), at 616. As Macklin rightly notes in this regard, “[a]sylum policies tend to migrate across borders with notably greater ease than asylum seekers themselves”: A. Macklin, “A Safe Country to Emulate? Canada and the European Refugee,” in H. Lambert et al. eds., The Global Reach of European Refugee Law 99 (2013), at 99. The ways in which deterrent practices are shared among developed countries are carefully analyzed in D. Ghezelbash, Refuge Lost: Asylum Law in an Interdependent World (2018). Immigration and Refugee Protection Act, SC 2001, s. 109.1(2)(a). This policy was ended in May 2019: www.canada.ca/en/immigration-refugees-citizenship/services/refugees/claimprotection-inside-canada/apply/designated-countries-policy.html, accessed Feb. 1, 2020. Countries were designated by the Minister on the basis of past outcomes, leading to concern that “risk designations do not reflect present conditions in the country of origin. Indeed . . . these processes may be liable to be self-perpetuating, in that designation will in likelihood have a significant impact on rejection rates (given the truncated procedural entitlements, meaning that there will be a higher likelihood of false negative decisions), which, in turn, may provide the basis for designation”: Costello, “Safe Country?,” at 617.

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Governments may also treat refugees differently on account of their religion. Hungary and Slovakia, for example, resisted the regional resettlement of non-Christian refugees from Greece,510 while the United States issued a ban on the resettlement of refugees from several countries that were initially identified on the basis of their predominantly Muslim populations.511 India similarly proposed in 2019 to grant citizenship to resident minority faith refugees from Afghanistan, Bangladesh, and Pakistan who entered the country before 2015, but deliberately excluded Muslim refugees from that initiative.512 Gender and sexual identity can play an important role in limiting access to refugee rights, as was the case for women refugees from Bhutan when Nepal refused to provide food and shelter to other than male heads of refugee households.513 Conversely, in Jordan male refugee spouses of Jordanian women have restricted access to residence permits, employment, and public healthcare services, and are barred by law from conferring citizenship on their children.514 And gay, lesbian and other sexual minority refugees in South 510

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R. Noack, “This Map Helps Explain Why Some European Countries Reject Refugees, and Others Love Them,” Washington Post, Sept. 8, 2015; see also “Migrant Crisis: Slovakia ‘Will Only Accept Christians,’” BBC, Aug. 18, 2015. A. Burns, “2 Federal Judges Rule Against Trump’s Latest Travel Ban,” New York Times, Mar. 15, 2017. “The order didn’t explicitly single out Muslim immigrants. But to many, the connection was clear enough on its own. After all, before candidate Trump promised to bar immigration based on country, he’d called for a ‘total and complete shutdown of Muslims entering the United States’”: D. Lind, “The Rise, Fall, and Partial Resurrection of Trump’s Travel Ban, Explained,” Vox, June 26, 2017. In June 2018, however, the US Supreme Court upheld the travel ban on a 5–4 vote: Trump v. Hawaii, (2018) 138 S. Ct. 2392 (US SC, June 26, 2018). In early 2020 the Trump administration expanded the scope of the ban to include an additional six countries with “substantial Muslim populations” – Burma (Myanmar), Eritrea, Nigeria, Sudan, Kyrgyzstan, and Tanzania: Z. Kanno-Youngs, “US Adds 6 Countries, Including Nigeria, to Restricted Travel List,” New York Times, Feb. 1, 2020, at A9. The fact that not all of these states are mainly Muslim was suggested to be an effort “to circumvent claims that the ban was religious discrimination”: “‘Muslim Ban Should End, not Expand’: Groups Slam Trump Travel Ban,” Al Jazeera, Jan. 31, 2020. “‘The Indian government’s claim that the citizenship law aims to protect religious minorities rings hollow by excluding Ahmadiyya from Pakistan and Rohingya from Myanmar,’ said Meenakshi Ganguly, South Asia director [for Human Rights Watch]. ‘The bill uses the language of refuge and sanctuary, but discriminates on religious grounds in violation of international law’”: Human Rights Watch, “India: Citizenship Bill Discriminates Against Muslims,” Dec. 11, 2019. “This policy . . . imposes particular hardship on women trying to escape abusive marriages. Either these women must stay in violent relationships, leave their relationships (and thus relinquish their full share of aid packages), or marry another man, in which case they lose legal custody of their children”: Human Rights Watch, “Nepal/Bhutan: Refugee Women Face Abuses,” Sept. 24, 2003. See generally Human Rights Watch, “Trapped by Inequality: Bhutanese Refugee Women in Nepal” (2003). This policy, applied generally to non-citizens, contrasts with the approach taken to female refugee spouses, who are automatically granted citizenship rights by virtue of their marriage to Jordanian men: J. Emanuel, “Discriminatory Nationality Laws in Jordan

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Africa report that law enforcement officials have ignored their pleas for protection from physical and verbal abuse, often allowing their attackers to go free.515 Differential treatment may even be based on a refugee’s mode of arrival. Since the early 1990s, Australian law has provided for the routine and ongoing detention of refugees arriving to seek protection if they present themselves without a valid entry visa.516 Canada allows for designation by the Minister of any group of two or more refugee claimants as “irregular arrivals” if, for example, they arrive with false documentation believed to have been provided by smugglers.517 Refugees so designated are subject to automatic detention and may not be considered to be “lawfully present” in Canada, leading one commentator to observe that they are afforded “little more than protection from refoulement.”518 A 2013 amendment to New Zealand law similarly provides for

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and their Effect on Mixed Refugee Families,” Research Paper 2012-4 (2012), at 9–10. One of the law’s most alarming effects – that it renders stateless any children born to such couples – has been attenuated by the passage in 2014 of a law granting certain privileges to affected children. But the exclusion of male refugee spouses from core rights remains intact: R. Husseini, “Gov’t Announces Privileges for Children of Jordanian Women Married to Foreigners,” Jordan Vista, Nov. 9, 2014; E. Oddone, “Jordanian Progeny Gain Ground in Nationality Fight,” Al Jazeera, May 5, 2015. Organization for Refuge, Asylum, and Migration, “Blind Alleys: The Unseen Struggles of Lesbian, Gay, Bisexual, Transgender and Intersex Urban Refugees in Mexico, Uganda, and South Africa,” Part II: Country Findings: South Africa, Feb. 2013, at 9-12. “Despite South Africa’s liberal anti-discrimination and immigration laws with regards to LGBTI persons, such laws are not always respected or enforced . . . LGBTI individuals in South Africa have reported experiencing unfair treatment and verbal and physical abuse, including by law enforcement and other state officials . . . Police officers often ignore cases involving foreigners and mock LGBTI persons when they report a crime. At times, law enforcement officers physically and sexually assault LGBTI refugees and asylum seekers”: PLE Against Suffering Oppression and Poverty, “Economic Injustice: Employment and Housing Discrimination Against LGBTI Refugees and Asylum Seekers in South Africa” (2013), at 3, 5. Parliament of Australia, “Immigration detention in Australia,” Mar. 20, 2013, www .aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/ pubs/BN/2012-2013/Detention, accessed Feb. 1, 2020. Protecting Canada’s Immigration System Act, S.C. 2012, c. 17. A. Neylon, “Ensuring Precariousness: The Status of Designated Foreign National under the Protecting Canada’s Immigration System Act 2012,” (2015) 27(2) International Journal of Refugee Law 297, at 298. In December 2012, it was reported that “[f]or the first time since a new refugee law was passed last June, the federal government has declared that five different groups of Romanian refugee claimants, who entered Canada on five different occasions over a period of several months, are to be designated as a single group. The consequences of designation are two weeks to one year in prison for every member of the group over fifteen years of age, and secondly, separation from their families for more than five years, even if they are accepted as refugees”: Canadian Association of Refugee Lawyers, “Press Release: Canadian Association of Refugee Lawyers (CARL) Challenges the Legality of Group Designation of Five Groups of Refugee Claimants,” Dec. 6, 2012.

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the non-reviewable detention of asylum-seekers and others arriving as part of a “mass arrival group” for an initial period of up to six months.519 In sum, refugees are frequently subjected to differences in treatment based on factors extraneous to their need for protection. The net result is a critical challenge to the notion that a universal common denominator of rights can be said to follow from refugee status. Refugee Convention, Art. 3 Non-discrimination The Contracting States shall apply the provisions of this Convention to refugees without discrimination as to race, religion or country of origin. Economic, Social and Cultural Covenant, Art. 2

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2. The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. 3. Developing countries, with due regard to human rights and their national economy, may determine to what extent they would guarantee the economic rights recognized in the present Covenant to non-nationals. Civil and Political Covenant, Art. 2(1) Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Civil and Political Covenant, Art. 26 All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons 519

The 2013 Immigration Amendment Act provides for the detention of asylum-seekers and others arriving in a group of thirty or more persons: New Zealand, Immigration Amendment Act 2013, Act 2013 No. 39, assented to June 18, 2013. The law authorizes the detention of such groups for up to six months initially, with the possibility to renew every twenty-eight days thereafter: Immigration Amendment Act 2013, s. 11 amending s. 307 of the Immigration Act 2009; see also Amnesty International, “Demanding Real Protection: Strong Human Rights Framework Needed to Address Failures to Protect,” Submission to the UN Universal Periodic Review of New Zealand, Feb. 2014, at 5.

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equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. The drafting history of the Refugee Convention provides little guidance on the substantive reach of Art. 3’s duty of non-discrimination. The Swiss delegate, for example, acknowledged only “measures of a humiliating character” to be discriminatory.520 Egypt tried unsuccessfully to exclude action necessary for the maintenance of public order from the scope of discrimination.521 No interest was shown in a Greek effort to ensure that actions necessary for “public safety” were immune from scrutiny under Art. 3.522 The most precise comment on the meaning of non-discrimination was offered by the American representative, who thought that discrimination meant “denying to one category of persons certain rights and privileges enjoyed by others in identical circumstances.”523 In line with principles of treaty interpretation earlier described,524 this conceptual uncertainty should be remedied by taking account of the parameters of the duty of non-discrimination elaborated under the terms of cognate treaties – including, for example, under the Human Rights Covenants, described above.525 Most fundamentally, this means that even a differential allocation of rights on the basis of a prohibited ground will not amount to discrimination if demonstrated to meet international standards of “reasonableness.”526 In drafting Art. 3, consensus was reached on the critical point that the duty of non-discrimination is not restricted to actions taken within a state’s territory, but governs as well a state’s actions toward persons seeking to enter its territory. While the English language draft of Art. 3 produced by the Second Session of the Ad Hoc Committee appeared to prohibit only discrimination by a state “against a refugee within its territory,”527 the French language formulation was not predicated on successful entry into a state’s territory.528 At the Conference of Plenipotentiaries, 520 521

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Statement of Mr. Schurch of Switzerland, UN Doc. A/CONF.2/SR.4, July 3, 1951, at 15. Statement of Mr. Mostafa of Egypt, UN Doc. A/CONF.2/SR.5, July 4, 1951, at 12. The British delegate thought that “the acknowledged right of any State to safeguard the requirements of public order and morality was extraneous to the subject-matter of Article 3,” while the Dutch representative argued that “[i]t would be dangerous to add a provision to Article 3 which would to some extent emasculate it”: Statements of Mr. Hoare of the United Kingdom and Baron van Boetzelaer of the Netherlands, ibid. at 14. Statement of Mr. Philon of Greece, ibid. at 12–13. Statement of Mr. Warren of the United States of America, ibid. at 4. See Chapter 2.2. The practice of the Human Rights Committee in interpreting the duty of nondiscrimination is described in Chapter 1.5.5. See Chapter 1.5.5 at note 468. 527 UN Doc. E/1850, Aug. 25, 1950, at 15. “Aucun Etat contractant ne prendra de mesures discriminatoires sur son territoire, contre un réfugié en raison de sa race, de sa religion ou de son pays d’origine”: UN Doc. A/ CONF.2/72, July 11, 1951, at 1. See also Statement of the President, UN Doc. A/CONF.2/ SR.4, July 3, 1951, at 19.

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the French delegate successfully argued against the narrowness of the duty proposed in the English text: [T]he statement that the State should not discriminate against a refugee within its territory on account of his race, religion or country of origin seemed to suggest that the State was perfectly entitled to discriminate against persons wishing to enter its territory, that was to say, against persons not yet resident in its territory. He therefore proposed that the words “within its territory” be deleted.529

The rationale for the territorial limitation captured in the draft English language text had, in fact, been simply to ensure that states were left complete freedom to administer their own systems of immigration law.530 Once it was recognized that the admission of refugees to durable asylum or permanent residency is not in any event governed by the Refugee Convention,531 it proved possible to secure the consent of states to a duty of non-discrimination with extraterritorial application.532 In line with the fact that Art. 3 governs all rights in the Refugee Convention, including Art. 33’s duty of non-refoulement, the American interdiction of Haitian asylum-seekers on the high seas, while simultaneously allowing Cuban asylum-seekers to come to the United States,533 thus raised an issue within the purview of Art. 3’s duty of non-discrimination. In contrast to the agreement on this point, there was real debate about the substantive breadth of Art. 3. As initially conceived, the provision was intended to prohibit discrimination not only against particular subsets of the refugee population, but against refugees in general. The Belgian draft of Art. 3 submitted to the Ad Hoc Committee provided that: “The High Contracting Parties shall not discriminate against refugees on account of race, religion or country of origin, nor because 529 530

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Statement of Mr. Rochefort of France, UN Doc. A/CONF.2/SR.4, July 3, 1951, at 18–19. “The history of the drafting of Article 3 showed that if the words ‘within its territory’ were deleted, the Convention would affect the whole field of immigration policy . . . There was no subject on which Governments were more sensitive or jealous regarding their freedom of action than on the determination of immigration policies . . . If the proposed deletion were made, certain Governments might feel that their policy of selection was affected by the Convention, and they might accordingly be hesitant about acceding to it”: Statement of Mr. Warren of the United States of America, UN Doc. A/CONF.2/SR.5, July 4, 1951, at 5. “It was noted during the discussion that . . . the Convention does not deal either with the admission of refugees (in countries of first or second asylum) or with their resettlement (in countries of immigration)”: “Report of the Committee Appointed to Study Article 3,” UN Doc. A/CONF.2/72, July 11, 1951, at 3. “It was thought that the words ‘within its territory’ in the place where they occurred in the English text could be interpreted a contrario as permitting such discrimination outside the territory of the Contracting State. A document drawn up under the auspices of the United Nations ought not to be susceptible to such an interpretation [emphasis added]”: ibid. at 2. The consensus definition of this Committee – which deleted the limitation “within its territory” – was the basis for the version of Art. 3 finally adopted: UN Doc. A/CONF.2/ SR.18, July 12, 1951, at 18, and UN Doc. A/CONF.2/SR.24, July 17, 1951, at 19–21. See text at note 497.

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they are refugees [emphasis added].”534 The latter part of the duty – imposing a duty not to discriminate on the basis of refugee status itself – did not survive the Conference of Plenipotentiaries, though some delegates clearly believed it should be retained. For example, the French representative insisted that equality between groups of refugees was an insufficiently inclusive goal, as “if all refugees received equally bad treatment, the State concerned could claim to have observed the provisions of Article 3.”535 Particularly where all refugees in a given asylum state belong to the same race or religion, or come from the same country, skewed rights allocations that are in substance racially, religiously, or nationally motivated might not be caught by a simple prohibition of discrimination between classes of refugees (since all refugees would be equally harmed). Some representatives therefore identified the need for a stronger commitment to prohibit the kinds of discriminatory actions that generate refugee flows in the first place.536 Despite these concerns, the Israeli delegate successfully moved the deletion of Art. 3’s prohibition of discrimination against refugees in general on the grounds that this issue was already regulated by the Convention’s provisions on required standards of treatment.537 This position was in line with the view he had earlier expressed in the Ad Hoc Committee that priority should be given to the express language which defined the various levels of obligation: It was important to clear up the exact place of Article 3 in the Convention and its relation to the other articles. It proclaimed a principle, but the exact conditions under which refugees might enjoy the benefits conferred by it were enumerated in later articles. There was nothing abnormal about that. The United Nations Charter itself began by speaking of the “sovereign equality” of all members of the United Nations and then proceeded to divide those members into great Powers and small Powers, permanent and non-permanent members of the Security Council, members with the right of veto and members without. There would be no objection to retaining Article 3 as formulated, on the understanding that its function was to 534 535 536

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Statement of Mr. Cuvelier of Belgium, UN Doc. E/AC.32/SR.24, Feb. 3, 1950, at 11. Statement of Mr. Rochefort of France, UN Doc. A/CONF.2/SR.4, July 3, 1951, at 18. “Such a provision was all the more necessary because most refugees had left their countries of origin in order to escape discrimination on grounds of race, religion, or political opinion”: Statement of Mr. Cuvelier of Belgium, UN Doc. E/AC.32/SR.24, Feb. 3, 1950, at 11. Statement of Mr. Robinson of Israel, UN Doc. A/CONF.2/SR.4, July 3, 1951, at 17–19. While the textual modification to Art. 3, in which the words “nor because they are refugees” were deleted, arguably determines this issue, it should be noted that even after the adoption of the Israeli motion, remarks of the Australian, French, and American delegates during the final substantive discussion of this article support a broader reading: UN Doc. A/CONF.2/SR.5, July 4, 1951, at 7–9. Moreover, the final language proposed by the Style Committee was said to be primarily designed to restrict the substantive ambit of this duty of non-discrimination to actions of a kind regulated by the Refugee Convention: UN Doc. A/CONF.2/72, July 11, 1951, at 3.

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establish a principle to which the exceptions would be specified in later articles, as was usual practice in any legal instrument.538

It is, of course, true that the extent of permissible differentiation between refugees and citizens in the delivery of rights is explicitly set out in the Refugee Convention’s mixed contingent and absolute rights structure.539 Many of the rights in regard to which the issue of discrimination vis-à-vis nationals might arise are required to be implemented only to the extent that they are guaranteed to some other category of non-citizens.540 The Refugee Convention thus clearly presumes the legitimacy of treating refugees less favorably than citizens with respect to any of the rights defined by a contingent standard less than nationality. For example, Art. 17 requires only that refugees benefit from “the most favorable treatment accorded to nationals of a foreign country in the same circumstances” as regards the right to work. In view of this clear language, the structure of the Refugee Convention argues against a finding of discrimination simply because refugees enjoy access to work on terms less favorable than those extended to citizens. Conversely, a duty of non-discrimination between citizens and refugees would add nothing to the force of those rights already defined to mandate implementation on terms of parity with citizens. All refugees must be assimilated to nationals in terms of the rights to rationing, primary education, and fair taxation.541 Where the relevant degree of attachment is satisfied, refugees are also entitled to national treatment in regard to religion and religious education, artistic rights and industrial property, public relief, labor legislation, social security, and legal assistance and security for costs before the courts.542 The duty to implement these rights on terms of parity with nationals is actually more powerful than a duty of non-discrimination relative to nationals would be, since the issue of reasonable differentiation inherent in non-discrimination analysis simply does not arise. As discussed earlier,543 the prohibition of generalized discrimination against refugees is in any event now largely achieved by the binding duty of non-discrimination subsequently codified in the Human Rights Covenants. 538 539 540

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Statement of Mr. Robinson of Israel, UN Doc. E/AC.32/SR.34, Aug. 14, 1950, at 9. See Chapters 3.2 and 3.3. Freedom of association and the right to engage in employment are guaranteed at the level of most-favored-national treatment; the rights to private property, internal freedom of movement, housing, and to engage in self- and professional employment are granted to refugees only to the extent afforded aliens generally. Refugee Convention, at Arts. 20, 22, and 29. See Chapter 3.3.2. Equality of treatment with regard to religion and religious education is guaranteed to all refugees “within the territory”; rights to public relief, and to benefit from labor and social security legislation, to all refugees who are “lawfully staying”; and the protection of artistic rights and industrial property and access to legal assistance and avoidance of security for costs to refugees who are “habitually resident.” See Chapter 1.5.5.

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Art. 2 of each of the Covenant on Civil and Political Rights and the Covenant on Economic, Social and Cultural Rights prohibits discrimination on the basis of a list of grounds, including “other status.”544 Relying on this open-ended formulation, the duty of non-discrimination has been authoritatively interpreted to establish the general rule “that each one of the rights of the Covenant must be guaranteed without discrimination between citizens and aliens,”545 and specifically to require that rights not be limited to citizens of a state, but that they “must also be available to all individuals, regardless of nationality or statelessness, such as asylum-seekers [and] refugees.”546 Unlike Art. 3 of the Refugee Convention (which prohibits only discrimination of particular kinds against refugees – namely on the basis of race, religion, or country of origin), the duty set by the Covenants is thus fully inclusive, prohibiting every kind of status-based discrimination (including on the basis of refugee status) in relation to a right established by the Covenants. This guarantee of non-discrimination found in Art. 2 of each of the Human Rights Covenants therefore partly fills the gap left by the limited prohibition of discrimination against refugees in general in the Refugee Convention. First, where a given right is found in both the Refugee Convention and one of the Covenants, Art. 2 of the Covenants disallows discrimination relative to nationals. In such circumstances, it is simply not necessary to rely on the relevant refugee right in order to contest treatment below national treatment. Since virtually all rights in the Covenants must be implemented without discrimination between nationals and non-citizens,547 refugees who invoke 544 545

546

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Ibid. at note 389. UN Human Rights Committee, “General Comment No. 15: The Position of Aliens under the Covenant” (1986), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [2]. UN Human Rights Committee, “General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant” (2004), UN Doc. HRI/GEN/ 1/Rev.7, May 12, 2004, at [10]. While this General Comment interprets only the Civil and Political Covenant, it is reasonable to assume that the virtually identical prohibition of discrimination on the basis of “other status” in the Economic, Social and Cultural Covenant will be similarly interpreted to protect the entitlement of aliens to national treatment in relation to its catalog of rights. While not explicitly endorsing an interpretation that includes aliens, the treaty’s supervisory committee nonetheless determined that “[a] flexible approach to the ground of ‘other status’ is . . . needed in order to capture other forms of differential treatment that . . . are of a comparable nature to the expressly recognized grounds . . . These additional grounds are commonly recognized when they reflect the experience of social groups that are vulnerable and have suffered and continue to suffer marginalization”: UN Committee on Economic, Social and Cultural Rights, “General Comment No. 20: Non-discrimination in Economic, Social and Cultural Rights (Art. 2, para. 2, of the International Covenant on Economic, Social and Cultural Rights)” (2009), UN Doc. E/C.12/GC/20, July 2, 2009, at [27]. The relevance of the minor differences in the language of the prohibition of discrimination in the two Human Rights Covenants is discussed in Chapter 1.5.5, note 400. Civil and Political Covenant, at Art. 2(1).

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the cognate Covenant protection can effectively avoid the lower standard of treatment prescribed by the Refugee Convention. For example, Art. 15 of the Refugee Convention guarantees freedom of association to refugees only to the extent of “the most favourable treatment accorded to nationals of a foreign country, in the same circumstances.” The failure to grant refugees the same associational rights as citizens would therefore not contravene the terms of the Refugee Convention. On the other hand, because the right to freedom of association is also established by Art. 22 of the Civil and Political Covenant and by Art. 8 of the Economic, Social and Cultural Covenant, refugees can invoke Art. 2 of the Covenants as the basis for asserting the same prima facie entitlement to associational rights as nationals. It would then fall to the state party denying equal treatment to advance the case that the distinction between refugees and citizens should be adjudged reasonable.548 In addition to freedom of association, refugees may rely on parallel provisions in the Covenants (which are subject to a general duty of non-discrimination) to assert a right to national treatment in access to employment, housing, and internal freedom of movement,549 each of which is guaranteed by the Refugee Convention only at a lower contingency level.550 Second, reliance on the Covenants to assert a duty of non-discrimination relative to nationals may actually allow refugees to contest a broader range of substantive disfranchisement. This is because the Covenants guarantee a significant number of rights not provided for at all in the Refugee Convention. In particular, the Civil and Political Covenant establishes the rights to life, to freedom from slavery, against torture, cruel, inhuman, and degrading treatment, to liberty and security of the person, freedom of thought, conscience, and religion, to leave the country, to equality before courts and tribunals,551 against retrospective application of criminal law, to recognition as 548 549

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See Chapter 1.5.5. Only refugees who are “lawfully in the territory of a State Party” may claim the right to non-discrimination relative to nationals in regard to internal freedom of movement and choice of place of residence: Civil and Political Covenant, at Art. 12(1). Under the Refugee Convention, the rights to self-employment, professional employment, housing, and internal freedom of movement are granted to refugees only to the extent afforded to aliens generally (Arts. 18, 19, 21, and 26). Access to wage-earning employment is guaranteed to refugees at the most-favored-national level (Art. 17). The comparable provisions in the Human Rights Covenants make no differentiation between the entitlement of nationals and aliens (Economic, Social and Cultural Covenant, at Arts. 6 and 11; Civil and Political Covenant, at Art. 12, which does, however, require lawful presence in the state’s territory). International aliens law also prohibits discrimination by courts against aliens (including refugees) in the adjudication of claims involving core rights, such as legal status, physical security, personal and spiritual liberty, and some economic and property rights. While not enforceable by refugees themselves, this customary norm of international aliens law can nonetheless be invoked as evidence of a principled, legally defined limitation on discrimination. See generally Chapter 1.1.

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a person, to protection of family, children, and privacy, against advocacy of hatred or discrimination, to freedom of opinion, expression, and assembly, and to the protection of minority rights.552 Additional rights derived from the Economic, Social and Cultural Covenant include guarantees of just and favorable working conditions, adequate food and clothing, protection of the family (including of mothers and of children), secondary and higher education, social security, access to healthcare, and participation in cultural life.553 Each of these rights must in principle be guaranteed to non-citizens, including refugees, without discrimination relative to nationals. Beyond the context-specific duty of non-discrimination derived from Art. 2 of the Covenants, additional value may also be secured from Art. 26 of the Civil and Political Covenant. As elaborated earlier, Art. 26 establishes a general duty to guarantee everyone equality before the law and the equal protection of the law without discrimination.554 As a matter of principle, this overarching duty should be understood to compel states not only to avoid any intentional disfranchisement of refugees, but also affirmatively to adopt measures which provide refugees with the substantive benefit of all public goods.555 In theory, even the levels of attachment set by the Refugee Convention are themselves subject to scrutiny under Art. 26 to ensure that the withholding of benefits from some refugees is justifiable. The major challenge to the efficacy of the various non-discrimination rights set by the Human Rights Covenants is that, as previously described, the contemporary practice of the Human Rights Committee has been to defer to state perceptions of “reasonableness” in determining whether a given form of differentiation amounts to discrimination.556 Whether the assessment occurs under one of the endogenous Art. 2 guarantees or in relation to the more generally applicable Art. 26, a refugee arguing that inequality of treatment is discriminatory must make the case that certain kinds of differential allocation should be understood to be impermissible as a general matter, or at least in particular circumstances. Given the mixed success in advancing this argument on behalf of non-citizens generally,557 it is by no means clear that general norms of non-discrimination law will, in practice, make up for the decision to exclude discrimination against refugees in general from the scope of Art. 3 of the Refugee Convention. On the other hand, reliance on the Human Rights Covenants can at least compel states to justify differential treatment of refugees as a class, which Art. 3 of the Refugee Convention cannot. Denied a role in prohibiting discrimination against refugees as a group, the purpose of Art. 3 of the Refugee Convention as finally adopted is instead to 552 553 554 557

Civil and Political Covenant, at Arts. 6–11, 12(2), 14–21, 23–24, and 27. Economic, Social and Cultural Covenant, at Arts. 7, 9–13, and 15. See Chapter 1.5.5 at note 453. 555 Ibid. at note 459. 556 Ibid. at note 469. Ibid. at note 471 ff.

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disallow any discrimination in the allocation of Convention rights between and among refugees on the basis of race, religion, or country of origin. While not requiring that all groups of refugees who arrive in an asylum country be treated identically, Art. 3 establishes a presumption that differential treatment based on any of the enumerated grounds is illegitimate. This presumption would apply, for example, in the case of India’s decision to grant permission to work to Tibetan refugees, even as Sri Lankan refugees were restricted to selfemployment and Bangladeshi refugees afforded no right to earn a livelihood,558 or its decision to naturalize long-staying refugees, but to deny that consideration to Muslim refugees.559 The text of Art. 3 makes clear, however, that it applies only to matters that are regulated by the Refugee Convention.560 Those who drafted the provision emphasized that “[t]he members of the Committee were in full agreement in their adherence to the principle of non-discrimination, in their desire to reach an acceptable (preferably a unanimous) solution which should cover the whole Convention, and in their determination not to ‘legislate’ beyond the Convention [emphasis added].”561 Their particular concern was to avoid any implication that states are subject to a duty to administer their immigration laws in a nondiscriminatory way.562 Art. 3 is not therefore a generalized prohibition of discrimination, but speaks only to invidious differentiation in the implementation of rights set by the Refugee Convention.563 Despite this fundamental constraint, it must be recognized that implementation of a Convention right may be implicated even in actions or policies which are not on their face linked to a right protected by the Convention. For example, the nature of the refugee status determination procedure is not specifically regulated by the Refugee Convention, thus suggesting that discrimination in relation to procedural matters would be unlikely to infringe Art. 3. But where, as in the case of Australia’s decision to suspend the processing of Afghan and Sri Lankan refugees, there is a consequential breach of a right protected by the Convention (in this case, subjection to indefinite detention, 558 560

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See text at note 501. 559 See text at note 512. “Article 3 of the 1951 Convention is an article that becomes relevant only if another provision of the 1951 Convention is affected, as it is an accessory prohibition of discrimination”: R. Marx and W. Staff, “Article 3,” in A. Zimmermann ed., The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary 643 (2011) (Marx and Staff, “Article 3”), at 647. “Report of the Committee Appointed to Study Article 3,” UN Doc. A/CONF.2/72, July 11, 1951, at 3. See text at note 530. “The non-discrimination provision in article 3 is limited to the application of ‘the provisions of this convention.’ Article 3 does not contain a freestanding non-discrimination provision. It resembles the weak provision in article 14 of the European Convention on Human Rights (1950)”: R v. Immigration Officer at Prague Airport et al., ex parte European Roma Rights Centre et al., [2004] UKHL 55 (UK HL, Dec. 9, 2004), at [43].

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contrary to Arts. 31(2) and 26 of the Convention),564 there is nationality-based discrimination contrary to Art. 3. Of particular contemporary importance, procedural discrimination can give rise to a heightened risk of unjustified rejection and removal from the asylum state, thus indirectly engaging Art. 33’s duty of non-refoulement.565 Whatever the usual level of safety in a country, the notion that a given country is inherently safe for all in consequence of which normal procedural rules can be dispensed with is clearly dubious566 – a fact apparent to the UK Supreme Court in agreeing with a gay man’s challenge to the designation of Jamaica as a safe country of origin.567 Because the failure properly to identify and protect a refugee is the foreseeable consequence of a truncated assessment procedure of the kind established by European “safe country of origin”568 or Canadian “designated country of origin”569 regimes, the duty of non-discrimination set by Art. 3 of the Refugee Convention is infringed.570 Simply put, in such a case 564 566

567

568 570

See text at notes 502–504; and Chapters 4.2.4 and 5.2. 565 See Chapter 4.1. “Such a list is capable of giving rise to accusations of arbitrariness by comparison with other countries not on the list”: Detention Action v. Secretary of State for the Home Department, [2014] EWHC 2245 (Eng. QBD, July 9, 2014), at [89]. The Court noted that “there was a serious risk of persecution of gays and other members of the LGBT community, [a] community . . . estimated to amount to between 5% and 10% of the population [even though] there is no such risk affecting the remainder of the population”: R (Jamar Brown, Jamaica) v. Secretary of State for the Home Department, [2015] UKSC 8 (UK SC, Nov. 26, 2014), at [1]. The Supreme Court more generally questioned the viability of arriving at a sound determination of which states of origin could be deemed safe, observing that “[f]or a serious risk of persecution to exist in general, i.e. as a general feature of life in the relevant country, it must be possible to identify a recognisable section of the community to whom it applies, but to require it to be established that the relevant minority exceeds x% of the population is open to several objections. The first is the absence of any yardstick for determining what x should be. If the Home Secretary was entitled to conclude that 10% was insufficient, would the same apply to 15%, 20%, or 25%? It is no answer to say that it is a question of degree for the judgment of the Home Secretary, within a wide margin of appreciation, if there is simply no way of deciding it”: ibid. at [22]. See text at note 507. 569 See text at notes 508–509. But see HIE and BA v. Refugee Applications Commissioner, Dec. No. C-175/11 (CJEU, Jan. 13, 2013), in which the Court of Justice of the European Union failed to recognize this risk in a challenge by two refugee claimants to the fast-tracking of their claims pursuant to Ireland’s designation of Nigeria as a safe country of origin. Noting the “importance of expediency in processing asylum applications” (ibid. at [60]) and adopting the view that “nationality of the applicant plays a decisive role” (ibid. at [71]) in refugee status assessment, the Court ruled “that the nationality of the applicant for asylum is an element which may be taken into consideration to justify the prioritized or accelerated processing of an asylum application” (ibid. at [73]), though “that prioritized procedure must not deprive applicants . . . of [regional procedural] guarantees” (ibid. at [74]). This ruling seems to ignore the fact that even if basic procedural guarantees are respected, all persons of a given nationality receive a truncated examination of their refugee claim, giving rise to a differentiated risk of rejection and consequential denial of refugee rights (including to protection against refoulement) based solely on their nationality.

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the refoulement would occur because of subjection to a process that stereotyped refugees based simply on their country of origin.571 As the Canadian Federal Court recognized in overturning a provision in the Canadian “designated country of origin” (DCO) regime that denied appeal rights to applicants from the listed states, [t]he distinction drawn between the procedural advantage now accorded to non-DCO refugee claimants and the disadvantage suffered by DCO refugee claimants . . . is discriminatory on its face. It also serves to further marginalize, prejudice, and stereotype refugee claimants from DCO countries . . . Moreover, it perpetuates a stereotype that refugee claimants from DCO countries are somehow queue-jumpers or bogus claimants . . .572

There will, however, be cases in which a Convention right is implicated neither directly nor indirectly in the discrimination. For example, because the Refugee Convention does not provide specifically for a right to physical security, South Africa’s failure to take steps to avoid assaults on sexual minority refugees573 is immune from scrutiny under the Refugee Convention’s endogenous nondiscrimination rule. Yet because Art. 9(1) of the Civil and Political Covenant establishes a right to security of person that inheres in all persons subject to a state’s jurisdiction,574 refugees left unprotected for reasons of their sexual identity may invoke Art. 2(1) of that treaty to contest the discrimination.575 Indeed, the Civil and Political Covenant is a critical resource even when a given interest is explicitly protected under neither the Refugee Convention nor any cognate human rights treaty. There is, for example, no legal duty to 571

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This contrasts with the notion of a “manifestly unfounded” claim, in which assignment to an accelerated procedure is based not on group stereotype, but rather on the fact that the individual claim is “clearly fraudulent or not related to the criteria for the granting of refugee status laid down in the 1951 United Nations Convention relating to the Status of Refugees nor to any other criteria justifying the granting of asylum”: UNHCR Executive Committee Conclusion No. 30, “The Problem of Manifestly Unfounded or Abusive Applications for Refugee Status or Asylum” (1983), at [(d)]. YZ v. Canada, [2015] FC 892 (Can. FC, July 23, 2015), at [124]–[125]. UNHCR’s stance is more tepid, though ultimately acknowledges the same concern (“notions such as ‘safe country of origin’ . . . should be applied so as not to result in improper denial of access to asylum procedures, or to violations of the principle of non-refoulement”: Executive Committee Conclusion No. 87, General Conclusion on International Protection (1999), at [(j)]). As applied in practice, UNHCR’s position “has been to insist on safeguards, rather than to condemn these practices outright”: Costello, “Safe Country?,” at 606. For example, responding to the Canadian plan to establish a “designated country of origin” list, UNHCR noted that it “does not oppose the introduction of a ‘designated’ or ‘safe country of origin’ list as long as this is used as a procedural tool to prioritize or accelerate the examination of applications in carefully circumscribed situations”: UNHCR, “Submission on Bill C-31, ‘Protecting Canada’s Immigration System Act,’” May 2012, at [31]. See text at note 515. 574 See Chapter 4.3.3. 575 See Chapter 1.5.5.

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resettle refugees from abroad. As such, policies of Hungary, Slovakia,576 and the United States577 to bar Muslim refugees from affirmative relocation programs are beyond the purview of Art. 3 of the Refugee Convention (and indeed of similar internal non-discrimination guarantees in other human rights treaties). But because the guarantee of equal benefit of the law without discrimination set by Art. 26 of the Civil and Political Covenant applies even to matters not regulated by the Covenant, “[i]t prohibits discrimination in law or in fact in any field regulated and protected by public authorities.”578 As such, to the extent a state regulates refugee resettlement – which Hungary, Slovakia, and the United States all do, whether under the auspices of regional or domestic law579 – they must abide by the duty of non-discrimination in the design and administration of resettlement programs, meaning they may not lawfully discriminate against Muslim or other subsets of refugees. A second concern is that the Refugee Convention’s duty of nondiscrimination is textually limited to the three listed grounds of race, religion, and country of origin. While true, the protection against discrimination on grounds of “country of origin” is of particular value, given the prevalence of discrimination against refugees based upon their citizenship. There can be little doubt, for example, that this ground is sufficient to contest the nationalitybased refusal of Yemen to recognize the refugee status of other than Somalis,580 or to challenge China’s refusal to protect refugees from North Korea.581 A purposive reading of prohibition of discrimination on grounds of “country of origin” would moreover extend also to practices and policies aimed at refugees from a given group or category of states. Thus, Israel’s stigmatization of sub-Saharan African refugees as illegal “infiltrators,”582 or Sudan’s refusal to provide Arab refugees with the protected status accorded refugees from immediately adjacent states,583 is also inconsistent with the Convention’s duty of non-discrimination. Equally clearly, European Union states may not lawfully treat a refugee claim as “manifestly unfounded” simply because it is made by the national of another EU country584 – knowing, as Costello observes, that “although the consequences of designation are mainly procedural, they seem to be fatal in practice.”585 Because the presumption of safety 576 578

579 582 585

See text at note 510. 577 See text at note 511. UN Human Rights Committee, “General Comment No. 18: Non-discrimination” (1989), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [12]. See generally Chapter 1.5.5. See text at notes 510–511. 580 See text at note 500. 581 See text at note 498. See text at note 499. 583 See text at note 505. 584 See text at note 506. Costello, “Safe Country?,” at 609. Indeed, an analysis prepared by the Canadian Immigration and Refugee Board shows that although EU law authorizes an exemption from the “manifestly unfounded” designation in four limited circumstances, in practice the narrowness of the authorized exemptions results in the rejection of “virtually all” claims by EU citizens as manifestly unfounded: Immigration and Refugee Board of Canada, “European Union: Application of the Protocol on Asylum for Nationals of Member States of the European Union (2013 – June 2015),” July 9, 2015, at 2–3. In

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that underlies the EU’s “Aznar Protocol” is factually unsound,586 the de facto denial of access to the refugee system to nationals of EU countries amounts to a breach of Art. 3’s duty not to discriminate on the basis of country of origin.587 It remains, however, that Art. 3’s restriction to only three grounds is oddly conceived. It does not, for example, replicate the United Nations Charter’s prohibition of discrimination on the grounds of race, sex, language, or religion.588 Even though the drafters expressed a desire to conform to the Universal Declaration of Human Rights,589 they refused to sanction an openended duty of non-discrimination of the kind contained in the Universal Declaration.590 Nor does it include the Universal Declaration’s explicit

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589 590

2014, for example, Belgium – which has formally resiled from the EU approach, correctly insisting that it would examine all claims on their individual merits in order to meet its Refugee Convention obligations – issued all ten of the positive refugee status decisions by EU states in relation to EU nationals: ibid. at 3. The Belgian refusal to adopt the EU approach is legally sound, since “[a]s a matter of law, Member States remain free to fulfill their international legal obligations towards refugees and asylum-seekers, including that enshrined in Article 3 of the Refugee Convention not to discriminate on the grounds of nationality”: M.-T. Gil-Bazo, “The Charter of Fundamental Rights of the European Union and the Right to be Granted Asylum in the Union’s Law,” (2008) 27(3) Refugee Survey Quarterly 33, at 43. Indeed, international law arguably requires such action. As Stern’s analysis shows, EU citizens, in particular those of Roma ethnicity, do in fact seek and secure refugee status recognition in other countries; and EU guarantees of freedom of movement are not sufficient to enable at-risk EU citizens simply to enter another EU country without need of accessing the asylum system: Stern, “At a Crossroad?,” at 66–73. See also E. Guild and K. Zwaan, “Does Europe Still Create Refugees? Examining the Situation of the Roma,” (2014) 40(1) Queen’s Law Journal 141. As Stern succinctly concludes, “discrimination on the basis of nationality becomes the rule,” rather than the exception: Stern, “At a Crossroad?,” at 62. Charter of the United Nations, 1 UNTS 16, adopted June 26, 1945, at Art. 1(3). In a dissenting opinion in the Full Federal Court of Australia, the view was taken that where differential treatment of certain refugees resulted largely from their inability to communicate in English, this was – if examined on the basis of effects – discrimination on grounds of national origin. “[T]o say that any differential impact is suffered not because of national origin, but rather as a result of individual personal circumstances, appears to me to adopt a verbal formula which avoids the real and practical discrimination which flows as a result of the operation of the [twenty-eight-day limit to seek review]”: Sahak v. Minister for Immigration and Multicultural Affairs, [2002] FCAFC 215 (Aus. FFC, July 18, 2002), per North J. The majority of the Court, however, was of the view that “such discrimination or disadvantage as arose from the practical operation of . . . the Act . . . does not deprive persons of one race of a right that is enjoyed by another race, nor does it provide for differential operation depending upon the race, color, or national or ethnic origin of the relevant applicant. For example, persons whose national origin is Afghani or Syrian are able to take advantage of the relevant right if their comprehension of the English language is sufficient, or if they have access to friends or professional interpreters so as to overcome the language barrier”: ibid. Statement of Mr. Cuvelier of Belgium, UN Doc. E/AC.32/SR.24, Feb. 3, 1950, at 11. The Yugoslavian delegate, Mr. Makiedo, unsuccessfully proposed that the list be made open-ended by the addition of the words “or for other reasons”: UN Doc. A/CONF.2/SR.4, July 3, 1951, at 13.

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references to color, sex, language, political or other opinion, social origin, property, or birth as prohibited bases of discrimination.591 While some of the drafters defended the scope of Art. 3 on the basis of its symmetry with the usual grounds on which refugees were persecuted, the failure to make reference to political opinion as a prohibited ground of discrimination was acknowledged to be at odds with this understanding of the purpose of Art. 3.592 A particularly disturbing discussion occurred in response to a proposal that sex be included as a prohibited ground of discrimination.593 Some states took umbrage at the mere suggestion that any government might be guilty of sex discrimination,594 while others clearly acknowledged that sex discrimination was common, but ought not to be challenged.595 One state actually defended its opposition to including sex as a prohibited basis of discrimination by arguing that to prohibit discrimination on the basis of sex might interfere with cigarette distribution quotas.596 The lack of serious and principled intellectual 591 592

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Universal Declaration of Human Rights, UNGA Res. 217A(III), Dec. 10, 1948, at Art. 2. “Political opinion,” together with race and religion, was acknowledged to be one of the three traditional grounds that led persons to seek protection as refugees: Statement of Mr. Cuvelier of Belgium, UN Doc. E/AC.32/SR.24, Feb. 3, 1950, at 11. Yet it was omitted in the statement of the President of the Conference of Plenipotentiaries that “the original idea underlying Article 3 [was] that persons who had been persecuted on account of their race or religion, for example, should not be exposed to the same danger in their country of asylum”: UN Doc. A/CONF.2/SR.5, July 4, 1951, at 10. The Yugoslavian delegate later sought (unsuccessfully) to justify an open-ended list of prohibited grounds of discrimination on the basis that “[t]he President had suggested that the text was satisfactory because it in fact enumerated all the reasons for which refugees were generally persecuted. There were, however, others, such as the holding of certain political opinions”: Statement of Mr. Makiedo of Yugoslavia, ibid. at 12. The omission of sex from the Convention’s prohibition of discrimination was noted by Baroness Hale in Fornah v. Secretary of State for the Home Department, [2006] UKHL 46 (UK HL, Oct. 18, 2006), at [84]. “He would . . . oppose the insertion of the words ‘and sex’ which would imply that certain countries at present practised discrimination on grounds of sex. Such was not the case”: Statement of Mr. Rochefort of France, UN Doc. A/CONF.2/SR.5, July 4, 1951, at 9. It is interesting to consider whether this position should be taken as an acknowledgment that reception countries were engaged in discrimination on the enumerated grounds of race, religion, and country of origin. “If that were done . . . States whose legislation provided for different hours of work for men and women, for instance, might be hesitant to accede to the Convention”: Statement of Mr. Warren of the United States, ibid. at 10. “The President added that . . . married women might be prevented by national legislation from establishing their own domiciles. The inclusion of a reference to sex in Article 3 might therefore present legislative difficulties for the State in question”: Statement of the President, ibid. “[T]he inclusion of a reference to sex might well conflict with national legislation, and he was therefore opposed to it as well. To quote one example, during a tobacco shortage in Austria the ration for women had been smaller than that for men. It had been alleged in the constitutional courts that that was a violation of the equality of the sexes, but the finding of the courts had been that women needed less tobacco than men. Thus, to include the reference to sex might bring the Convention into conflict with national legislation,

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engagement in this discussion confirms the essentially arbitrary approach to the decision on which substantive grounds to include in Art. 3. The final 17–1 (5 abstentions) vote in opposition to any expansion of the scope of Art. 3 makes clear, however, that there is no basis upon which to argue that the Refugee Convention was intended to grant refugees the benefit of a comprehensive duty of non-discrimination.597 The women refugees denied equal access to health facilities, food, and educational opportunities by Nepal598 or the male refugees denied work and other benefits that would ordinarily accrue by virtue of marriage to a Jordanian citizen599 would thus appear to be beyond the protective reach of Art. 3. This is, however, no longer the case for the overwhelming majority of refugees located in states that are also parties to the Civil and Political Covenant. In those countries, the interaction between the Refugee Convention and the guarantee of equal benefit of the law without discrimination set by Art. 26 of the Civil and Political Covenant now effectively remedies the limited reach of Art. 3’s text. Art. 3 of the Refugee Convention clearly establishes that there was an explicit intention to insulate refugee rights from discrimination (albeit then on the basis of only the three enumerated grounds). Art. 26 of the Civil and Political Covenant, in turn, today requires that any rights (including to non-discrimination) allocated to one group be presumptively extended to all.600 Taken together, the protections of Art. 3 of the Refugee Convention must now be read to apply generally, that is without discrimination based upon any of the grounds set by Art. 26, namely race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.601 Given this legal evolution, an especially interesting question is whether discrimination based upon a refugee’s mode of arrival in the asylum country is caught by the prohibition of discrimination based on “other status.” This concern now arises, for example, in the context of Australia’s indefinite detention of “irregular arrivals,”602 New Zealand’s special regime for the longterm detention of “mass arrivals,”603 and Canada’s “designated foreign

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because a woman refugee might not obtain as many cigarettes as a male refugee”: Statement of Mr. Fritzer of Austria, ibid. at 11. The trivialization of the importance of sex discrimination – not to mention the fact that cigarette distribution is clearly not within the substantive ambit of the Refugee Convention – attest to a shockingly weak grasp of the issues at hand. Ibid. at 12. Interestingly, the observer from the Confederation of Free Trade Unions resurrected the issue of amending Art. 3 to embrace sex discrimination during the final reading of the Convention. There is no reported discussion of her proposal, the present text of Art. 3 being adopted without amendment by a vote of 21–0 (1 abstention): UN Doc. A/CONF.2/SR.33, July 24, 1951, at 7. See text at note 513. 599 See text at note 514. 600 See Chapter 1.5.5 at note 453. Civil and Political Covenant, at Art. 26. 602 See text at note 516. See text at note 519.

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national” regime which imposes detention and other rights deprivations on refugees who are “irregular” arrivals (for example, because a smuggler facilitated their entry without documentation).604 The Human Rights Committee has provided little systematic guidance on the meaning of the residual category of “other status.”605 Its general approach has been to insist on the “all encompassing character of the terms of this article,”606 equating “other status” simply with an “identifiably distinct category,”607 and finding, for example, that it would “not exclude that ‘residence’ may be a status that prohibits discrimination.”608 This approach aligns neatly with the general goal of non-discrimination law to ensure that “individuals should be judged according to their personal qualities . . . [which] tenet is contravened if the treatment is based on their status [emphasis added].”609 Following this approach, there is no reason to see a group defined by mode of arrival as other than members of an “identifiably distinct category” and hence as protected from discrimination on the basis of “other status.” Whatever deference to immigration-based categories might otherwise be thought fair,610 there is no warrant to depart from the ordinary meaning of “other status” in order to insulate from scrutiny a category defined in contravention of Art. 31 of the Refugee Convention’s express prohibition of the “impos[ition of] penalties, on account of their illegal entry or presence, on refugees.”611 Indeed, regimes such as those adopted by Australia612 and 604 605

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See text at notes 517–518. S. Joseph and M. Castan, The International Covenant on Civil and Political Rights: Cases, Materials, and Commentary (2013), at [23.27]. The authors list various statuses found to qualify as “other status”: ibid. at [23.29]. See also J. Pobjoy, “Treating Like Alike: The Principle of Non-Discrimination as a Tool to Mandate the Equal Treatment of Refugees and Beneficiaries of Complementary Protection,” (2010) 34 Melbourne University Law Review 181, at 206. Vuolanne v. Finland, HRC Comm. No. 265/1987, decided Apr. 7, 1989, at [9.6]. B d. B v. Netherlands, HRC Comm. No. 273/1989, decided Mar. 30, 1989, at [6.7]. Pohl v. Austria, HRC Comm. No. 1160/2003, decided July 9, 2004, at [9.4]. Fredman, Discrimination, at 109. See generally Chapter 1.5.5. In one case, the Human Rights Committee has suggested that it would apply its “objective and reasonable” framework (see Chapter 1.5.5) to the definition of which forms of identity attract the duty of non-discrimination: Gueye v. France, HRC Comm. No. 196/1985, decided Apr. 3, 1989, at [9.4] (“A differentiation based on reasonable and objective criteria does not amount to prohibited discrimination within the meaning of article 26”). See Chapter 4.2. The Refugee Convention is appropriately considered in the application of the Civil and Political Covenant to refugees as part of the legal “context” of the Covenant: see Chapter 2.2 at note 88. See text at note 516. It has been argued by some that Australia’s policy is essentially driven by considerations of race. “Boat people are predominantly South-East Asian asylum-seekers who come to Australia by sea without authority . . . They are all unlawful non-citizens . . . Although Australia had a detention policy, it had been used only for specific cases and only for individuals until the arrival of the boat people. It was activated to incarcerate this particular group. This discriminatory response arose out of the fear of Australia’s ‘significant

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Canada613 that stigmatize a subset of refugees for doing only what international law expressly allows them to do – arriving without preauthorization to seek protection – ought not only to be scrutinized as discrimination based on “other status,” but should not survive scrutiny as reasonable policies given their flaunting of international legal duties. The New Zealand system – imposing differential treatment only on “mass arrivals”614 – also treats some refugees differently based simply upon their mode of arrival, and therefore also raises an issue of differentiation based on “other status.” In contrast to the unlawful stigmatization of “irregular arrivals” by Australia and Canada, however, the New Zealand policy may well be adjudged “reasonable” and thus non-discriminatory. Both the drafting history of the Refugee Convention and relevant UNHCR Executive Committee standards provide support for granting states some flexibility to engage in categorical differentiation in the context of a true “mass influx,”615 though of course the extent of the differentiation based on that category would itself still need to be shown to be objective and reasonable.616 Just as Art. 31 of the Refugee Convention sensibly informs an understanding of impermissible differentiation based on “other status,” so too Art. 3 of the Refugee Convention is helpful as an interpretive aid to Art. 26 of the Civil and Political Covenant, assisting in tackling the central question in nondiscrimination analysis of whether a differential allocation of refugee rights may be found to be “reasonable.” In answering this question, reliance should be placed on the fact that Art. 3 of the Refugee Convention defines a series of entitlements that are presumptively to follow from refugee status. These include not only rights that mirror those found in the Covenants and elsewhere (e.g. freedom of movement, right to work), but also other rights uniquely relevant to the situation of refugees (e.g. non-penalization for illegal entry,

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other’: Asia”: D. McMaster, Asylum Seekers: Australia’s Response to Refugees (2001), at 2–3. Alternatively, Fonteyne suggests that the underlying basis for discrimination might be the region (or countries) of origin. “[T]he policy in effect violate[d] the non-discrimination standard mandated by Article 3 of the Refugee Convention (as only boat people, and not onshore applicants are routinely detained, and boat people in reality predominantly come from particular geographic regions)”: J.-P. Fonteyne, “Illegal Refugees or Illegal Policy?,” in Australian National University Department of International Relations ed., Refugees and the Myth of the Borderless World 16 (2002), at 16. The issue of whether discrimination against “boat people” was a violation of the duty of non-discrimination on the basis of “other status” was not adjudicated by the Human Rights Committee in A v. Australia, HRC Comm. No. 560/1993, UN Doc. CCPR/C/59/D/560/1993, decided April 30, 1997. Australia’s detention of the “boat people” was, however, found to violate Arts. 9(1), 9(4), and 2(3) of the Civil and Political Covenant. See text at notes 517–518. 614 See text at note 519. See Chapter 4.1.5. UNHCR Executive Committee Conclusions on International Protection are properly understood to be interstate agreements that form part of the context for interpretive purposes: see Chapter 2.2. at note 80 ff. See Chapter 1.5.5 at note 468.

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non-refoulement, and access to identity documents). A state party seeking to justify differential protection of some part of the refugee population on any status-based ground therefore faces a particular hurdle when the subject matter of the differentiation is a right expressly guaranteed in the Refugee Convention itself: because these are rights that are explicitly intended to inhere in persons who are refugees simply because they are refugees, the government withholding these rights should be expected to overcome that presumption in seeking to demonstrate the reasonableness of its failure to treat all refugees equally. Despite both its direct and indirect value to contesting discrimination against subsets of the refugee population, the efficacy of Art. 3 is nonetheless sometimes questioned on the grounds that it appears to be overridden by Art. 5 of the Refugee Convention, which provides that “[n]othing in this Convention shall be deemed to impair any rights and benefits granted by a Contracting State to refugees apart from this Convention.”617 Because “nothing” in the Convention impairs Art. 5, it is arguable that the article entitles states to grant superior rights to preferred categories of refugees, so long as no class receives treatment below the minimum standard of treatment required by the Convention.618 Particularly because Art. 5 was originally incorporated in the Convention immediately after the duty of non-discrimination,619 it may therefore be read to authorize governments to depart from the principle of Art. 3 if a subset of the refugee population is thereby benefitted.620 Importantly, though, there is nothing in Art. 5 that requires a reading that abrogates Art. 3’s duty of non-discrimination. Moreover, construing Art. 5 in a way that would allow discrimination might reasonably be contested by reliance on the duty to interpret a treaty in a manner that avoids internal conflict.621 On the other hand, no conflict arises if Art. 5 is understood simply as an invitation to governments to agree to higher standards than those mandated by the Refugee Convention,622 not as countenancing the granting of privileges to only a select subset of refugees. The latter result is in any event 617 618

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See generally Chapter 1.4.5. See e.g. S. Blay and M. Tsamenyi, “Reservations and Declarations under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees,” (1990) 2(4) International Journal of Refugee Law 527 (Blay and Tsamenyi, “Reservations”), at 556–557. UN Doc. E/AC.32/SR.43, Sept. 28, 1950, at 14. See Weis, Travaux, at 44; Robinson, History, at 76; Marx and Staff, “Article 3,” at 648. “The terms of a treaty norm must, first of all, be interpreted ‘in their context’ (Art. 31(1) of the Vienna Convention). This context includes, particularly, all the other terms of the treaty in which the norm is set out . . .. Only if one of . . . two norms explicitly goes against the other norm is the presumption against conflict rebutted”: J. Pauwelyn, Conflict of Norms in Public International Law (2003), at 247. See also Chapter 2.2 at note 57. There was clearly interest in encouraging states to grant protections that exceed those stipulated by the Refugee Convention. See e.g. the exchange between Mr. Warren of the United States and Mr. Herment of Belgium: UN Doc. A/CONF.2/SR.5, July 4, 1951, at 8. See generally Chapter 1.4.5.

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now compelled by Art. 26 of the Civil and Political Covenant, which as previously noted requires equal protection of the law without discrimination “in any field regulated and protected by public authorities.”623 Thus, for example, if access to the labor market on terms of parity with nationals is granted immediately to any subset of the refugee population, it must be extended to all absent a showing of differing capabilities and potentialities sufficient to justify the preferred treatment of only a subset of the refugee population. So, what is the present day net value of Art. 3 of the Refugee Convention? There is no doubt that the Covenants today are now the most critical source of relevant protection,624 setting a critical guarantee of non-discrimination in relation to rights not guaranteed under the Refugee Convention, as well as significantly expanding the list of grounds on which discrimination is not allowed. Art. 26 of the Civil and Political Covenant is of particular importance, setting a broad-ranging duty of equal protection of the law in relation to any matter regulated by a state – including, therefore, a state’s refugee protection system. Yet the Refugee Convention remains relevant. Most importantly, Art. 3 of the Refugee Convention plays a complementary role to the Covenants by defining a core sphere of interests in regard to which the allocation of differential rights to refugees or subsets of the refugee population should be presumed not to be justifiable – making it clear, for example, that refugee-specific concerns such as immunity from penalization for unlawful entry or presence, the issuance of identity and travel documents, protection from expulsion or refoulement, and access to naturalization must be implemented without discrimination. Indeed, even where cognate rights are protected under both general human rights law and the Refugee Convention, the often greater specificity of Convention rights allows Art. 3 to expand or clarify the scope of a protected interest – for example, that non-discriminatory access to the general right to food includes non-discriminatory access to rationing systems,625 and that non-discriminatory access to the courts includes nondiscriminatory access to legal assistance.626 In addition to Art. 3, the Refugee Convention as a whole is of value in applying generic non-discrimination norms to refugees. As shown above,627 for example, the Refugee Convention helps in the refugee-specific analysis of the scope of protected categories – for example, looking to Art. 31 of the 623

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UN Human Rights Committee, “General Comment No. 18: Non-discrimination” (1989), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [12]. See Chapter 1.5.5 at note 455. There is much force in the view that “Article 3 of the Geneva Convention has . . . largely – if not totally – been neutralized by Article 26 of the Covenant” (Chetail, “Are Refugee Rights Human Rights?,” at 49), though as described below the Refugee Convention plays a critical complementary role to the general non-discrimination norms. See Chapter 4.4.1. 626 See Chapters 4.10 and 5.5. 627 See text at note 610 ff.

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Convention to conclude that the prohibition of discrimination based on “other status” should include discrimination based on a refugee’s mode of arrival. The Convention’s levels of attachment628 can also be of real value in understanding what forms of differentiation should be understood to be “reasonable” and hence non-discriminatory – meaning, for example, that any attempt to treat refugee children less well than citizens in terms of access to basic education629 or rules on the employment of some or all refugees that fall short of mostfavored-national standards630 should, because they fall below the Refugee Convention’s minimum standard of treatment, be understood to fall short of what is reasonable and thus be deemed presumptively discriminatory. In each of these ways, Art. 3 and companion provisions of the Refugee Convention serve as an important contextual check on the possibility of interpretations that might undermine the value to refugees of the general duty of non-discrimination.

3.5 Restrictions on Refugee Rights A state that makes no reservation to the terms of the Convention, and which does not avail itself of the formal option to limit its obligations temporally631 or geographically,632 may validly restrict refugee rights under only very narrow circumstances. The Refugee Convention – in contrast, for example, to the Civil and Political Covenant – does not grant governments a general right to suspend or withhold Convention rights, even in emergency situations. Apart from a small number of Convention rights specifically subject to limitations for reasons of security or criminality,633 the only lawful restrictions on refugee rights are those 628 631

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See Chapter 3.1. 629 See Chapter 4.8. 630 See Chapter 6.1. This can be achieved by acceding to the Refugee Convention, without also acceding to the Refugee Protocol. See Chapter 1.4.3 at note 88. A state may restrict its obligations to persons who became refugees as the result of events occurring in Europe by acceding to the Refugee Convention, but not to the Refugee Protocol, and making a declaration at the time of signature, ratification, or accession specifying that it is governed by the interpretation of the refugee definition set out in Art. 1(B)(1)(a) of the Refugee Convention. Those states which became parties to the Refugee Convention and which elected to adopt the interpretation set out in Art. 1(B)(1)(a) prior to 1967 may also validly retain that geographical limitation, even while broadening the temporal scope of their obligations by accession to the Refugee Protocol. Other governments that opt to bind themselves to refugees without temporal limitation by accession to the Refugee Protocol must, however, also accept obligations without geographical limitation. See Chapter 1.4.3 at notes 89–90. These include Art. 33 (non-refoulement: “may not, however, be claimed . . . [if] danger to the security of the country . . . or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country”); Art. 32 (freedom from expulsion: “save on grounds of national security or public order”); and Art. 28 (travel documents: “unless compelling reasons of national security or public order otherwise require”). See generally Chapters 4.1.4, 5.1, and 6.6.

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taken in accordance with Art. 9 of the Convention, providing for the provisional suspension of refugee rights on national security grounds during a war or other grave emergency – and even these measures must come to an end once refugee status is verified. Nor may refugees be subject to peacetime measures of retaliation or retorsion imposed on the grounds of their formal nationality.

3.5.1 Suspension of Rights for Reasons of National Security Refugee Convention, Art. 9 Provisional Measures Nothing in this Convention shall prevent a Contracting State, in time of war or other grave and exceptional circumstances, from taking provisionally measures which it considers to be essential to the national security in the case of a particular person, pending a determination by the Contracting State that that person is in fact a refugee and that the continuance of such measures is necessary in his case in the interests of national security. The drafters of the Convention considered, but did not adopt, an all-embracing power of derogation in time of national crisis.634 The British proponent of the derogation clause wanted governments to be in a position to withhold rights from refugees if faced with a mass influx during wartime or other crisis. Because it would be impossible immediately to verify whether each person should be excluded from refugee status on security grounds,635 he argued that governments required some breathing space in order to avoid granting rights to persons who might be found to represent a danger to the host state.636 His concern was valid, since a significant number of rights accrue to refugees even before their status has been formally determined.637 Yet, as the 634

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“A contracting State may at a time of national crisis derogate from any particular provision of this Convention to such extent only as is necessary in the interests of national security”: Proposal of the United Kingdom, UN Doc. E/AC/32/L.41, Aug. 15, 1950. Refugee Convention, at Art. 1(F). The exclusion clauses which form an integral part of the definition of refugee status also provide critical safeguards for governments. On this topic, see generally Grahl-Madsen, Status of Refugees I, at 262–304; and Hathaway and Foster, Refugee Status, at 524–598. “He recalled the critical days of May and June 1940, when the United Kingdom had found itself in a most hazardous position; any of the refugees within its borders might have been fifth columnists, masquerading as refugees, and it could not afford to take chances with them. It was not impossible that such a situation could be reproduced in the future”: Statement of Sir Leslie Brass of the United Kingdom, UN Doc. E/AC.32/SR.21, Feb. 2, 1950, at 8. See also the comments of Mr. Theodoli of Italy, UN Doc. E/AC.32/SR.34, Aug. 14, 1950, at 20: “[T]he main concern was to know whether at a time of crisis the Contracting States could resort to exceptional measures. He referred to the situation of Italy at the outset of the war when thousands of refugees had flocked to the frontiers of Italy.” See generally Chapters 3.1.1, 3.1.2, and 3.1.3. The assurance of the representative of the United States that “the doubts of the United Kingdom representative might be resolved by

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American delegate insisted, it was equally important that any exception to the duties owed refugees be limited to “very special cases.”638 The focus of attention therefore became how to ensure that states faced with a critical emergency could protect vital national security interests during the time required to investigate particular claims to refugee status.639 The resultant Art. 9 is carefully circumscribed,640 reflecting the desire to strike a balance between the legitimate concerns of war-torn states and those of the refugees who fled to them.641 As the sole general provision on derogation in the Convention, a government must either meet the requirements of Art. 9 or “the whole Refugee Convention remains plainly applicable even in times of armed conflict.”642

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the fact that any Government would be free to hold that any individual was not a bona fide refugee, in which case none of the provisions of the convention would apply to him” failed to recognize this critical point: Statement of Mr. Henkin of the United States, UN Doc. E/ AC.32/SR.21, Feb. 2, 1950, at 8. See also UN Doc. E/AC.32/SR.34, Aug. 14, 1950, at 19. Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.34, Aug. 14, 1950, at 21. In particular, Mr. Henkin agreed that the Convention “ought not to prevent Governments in time of war from screening refugees to weed out those who were posing as such for subversive purposes.” His concern was simply that “any limitation . . . ought to be defined more precisely than had been proposed, rather than leaving it open to countries to make far-reaching reservations. He would like the limitation to be as narrow as was possible”: Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.35, Aug. 15, 1950, at 6. “The President recalled that . . . there had been no doubt that dangerous persons, such as spies, had to be dealt with under national laws. The question had then been raised as to the action to be taken in respect of refugees on the declaration of a state of war between two countries, which would make it impossible for a particular State to make an immediate distinction between enemy nationals, in the country, supporting the enemy government, and those persons who had fled from the territory of that enemy country. The Ad Hoc Committee had come to the conclusion that, while a government should not be in a position to treat persons in the latter category as enemies, it would need time to screen them”: Statement of the President, Mr. Larsen, UN Doc. A/CONF.2/SR.6, July 4, 1951, at 15. Art. 9 is thus not in any sense the “carte blanche” suggested by Davy: U. Davy, “Article 9,” in A. Zimmermann ed., The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary 781 (2011) (Davy, “Article 9”), at 784. Art. 9 contrasts, for example, with the cognate provision in the Civil and Political Covenant, which allows for the ongoing suspension of rights in the context of the broader category of a “public emergency which threatens the life of the nation and the existence of which is officially proclaimed”: Civil and Political Covenant, at Art. 4(1). As separate treaties, the Refugee Convention and other applicable human rights treaties must be independently implemented in good faith. It is therefore not the case that “[t]he limitations deriving from human rights law also delineate the State powers under Art. 9 of the 1951 Convention if and when the measures interfere with relevant human rights” in consequence of which “provisional measures under Art. 9 have, over time, become outdated by human rights law”: Davy, “Article 9,” at 791, 803. V. Chetail, “Armed Conflict and Forced Migration: A Systematic Approach to International Humanitarian Law, Refugee Law, and International Human Rights Law,”

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In line with its limited objective, Art. 9 does not authorize generalized derogation on an ongoing basis,643 but only as a provisional measure “pending a determination by the Contracting State that that person is in fact a refugee.”644 A state that wishes to avail itself of the provisional measures authority must therefore proceed to verify the claims to refugee status of all

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in A. Clapham and P. Gaeta eds., The Oxford Handbook of International Law in Armed Conflict 700 (2014), at 713. See also D. Cantor, “Laws of Unintended Consequence: Nationality, Allegiance and the Removal of Refugees during Wartime,” in D. Cantor and J. Durieux eds., Refuge from Inhumanity: War Refugees and International Humanitarian Law 345 (2014) (Cantor, “Unintended Consequence”), at 366 (“[W]e should be clear that the existence of a set of circumstances triggering the threshold provisions of [international humanitarian law] does not serve to displace en masse the legal effect of international refugee law . . . [T]he fact that the Refugee Convention already takes into account the factor of military necessity in times of war shows clearly that it is not, as a body of law, subject to derogation but rather continues to apply during armed conflict”). Edwards in contrast makes a far-reaching claim that there is an implied right of derogation borne of state practice ( A. Edwards, “Temporary Protection, Derogation and the 1951 Refugee Convention,” (2012) 13(2) Melbourne Journal of International Law 595 (Edwards, “Temporary Protection”), at 624), a case based on the dubious assumption that state practice under the Convention amounting to subsequent agreement can establish, rather than simply interpret, law: see Chapter 2.4. Conversely, Durieux and McAdam argue for a treaty-based right to derogate from refugee obligations that takes no account of the role of Art. 9: J.-F. Durieux and J. McAdam, “Non-refoulement through Time: The Case for a Derogation Clause to the Refugee Convention in Mass Influx Emergencies,” (2004) 16(1) International Journal of Refugee Law 4. Nor may states rely on their domestic laws to deny refugee rights based on security concerns on an ongoing (rather than provisional) basis. As the Court of Justice of the European Union observed in response to the withholding of a residence permit from a refugee believed to support the Turkish PKK, “[a]s those rights conferred on refugees result from the granting of refugee status and not from the issue of the residence permit, the refugee, as long as he holds that status, must benefit from [refugee] rights”: HT v. Land Baden-Württemberg, Dec. No. C-373/13 (CJEU, June 24, 2015), at [97]. See also M v. Czech Republic, X and X v. Belgium, Dec. Nos. C-391/16, C-77/17, and C-78/17 (CJEU, May 14, 2019), at [108], finding that “there is no way of interpreting [EU law] as having the effect of encouraging . . . States to shirk their international obligations as resulting from the Geneva Convention by restricting the rights that those persons derive from that convention.” Convention, at Art. 9. Despite the clear language of this provision, it has been suggested that a “determination . . . that that person is in fact a refugee” does not mean what it says; rather, “[t]he ultimate aim of the determination under Art. 9 is not to clarify refugee status according to the criteria in Art. 1, but to find out whether the individuals concerned – bound via their nationality to a country engaged in severe hostilities against their host country – are (still) loyal to their country of nationality and, hence, a security risk for their host country”: Davy, “Article 9,” at 800. This approach is not only contrary to the plain language and drafting history of the article, but would allow a state effectively to suspend its obligations in perpetuity. Yet even the Australian representative – who argued perhaps most strenuously for a wide-ranging power of derogation – made clear “that it was never his delegation’s intention to open the way to an indefinite extension of the circumstances in which states could take exceptional measures”: Statement of Mr. Shaw of Australia, UN Doc. A/CONF.2/SR.6, July 4, 1951, at 14.

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persons whose rights are thereby suspended.645 If a particular person is found not to be a Convention refugee, including on the basis of criminal or other exclusion under Art. 1(F), no rights under the Refugee Convention accrue, and removal from the territory or the imposition of other restrictions is allowed.646 If, on the other hand, an individual is found to satisfy the Convention refugee definition,647 Art. 9 establishes a presumption that the provisional measures shall come to an end.648 The duty to terminate provisional measures upon refugee status recognition does not mean, however, that the government of the asylum country is prevented from protecting itself against risks to its national security. It must, however, ground its actions in the authority of a particular article of the Convention, rather than relying on the generic authority of Art. 9.649 The drafters moreover made provision for the possibility that in some cases security concerns might not be fully investigated even by the time of status recognition, an understandable possibility in the context of war or other exceptional circumstances. Concerned that if the authorities of an asylum state were denied the ability to investigate even late-breaking security risks in a specific case they might take a less generous attitude toward the admission of refugees,650 the 645

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“During the war . . . [i]t was impossible to give all persons entering the country as refugees a thorough security examination, which had to be deferred till exceptional circumstances made it necessary”: Statement of Sir Leslie Brass of the United Kingdom, UN Doc. E/ AC.32/SR.35, Aug. 15, 1950, at 8. As Robinson observes, “[t]he purpose of Art. 9 is to permit the wholesale provisional internment of refugees in time of war, followed by a screening process”: Robinson, History, at 95. Countervailing domestic or international legal obligations, for example duties to avoid removal under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1465 UNTS 85 (UNTS 24841), adopted Dec. 10, 1984, entered into force June 26, 1987, may operate independently to prevent removal from the asylum country. Robinson argues that the provisional measures “have to be suspended if the person involved can prove conclusively his status as a refugee”: Robinson, History, at 95. The literal meaning of Art. 9 cannot, however, sustain this interpretation. The requirement that in the case of a refugee “the continuance of such measures [must be] necessary in his case in the interests of national security” is, however, a sufficient basis to argue that absent such a finding, provisional measures must be terminated. Contrary to both the express language and drafting history of Art. 9, Davy argues that provisional measures may be applied not only to refugees who have not yet been recognized, but also to “individuals who have – on the basis of a formal determination or just informally – been admitted as refugees. They might all be subjected to provisional measures”: Davy, “Article 9,” at 801. See text at note 644. “In his country refugees were granted legal status after a previous examination on their entering the country; later information obtained sometimes threw new light on their possible danger to the community. If the State were not permitted to take measures against refugees in the light of such later information, it would be less willing to accord them citizen status”: Statement of Mr. Winter of Canada, UN Doc. E/AC.32/SR.35, Aug. 15, 1950, at 10.

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drafters approved an exception to the presumption that a positive determination of refugee status ends the application of provisional measures.651 If there is a specific finding in regard to a particular refugee “that such measures are still necessary in his case in the interests of national security [emphasis added],”652 provisional measures may be continued for the time it takes to investigate those concerns. As an exception to the general purpose of Art. 9, however, this authority must be restrictively construed. In particular, it authorizes only the continuance of provisional measures, not the establishment of indefinite restrictions in the interests of national security.653 Nor does it provide any general authority to limit the rights of persons already recognized to be Convention refugees.654 As noted above,655 the primary concern of the drafters was to enable states at war to intern refugee claimants pending status assessment.656 As adopted, however, Art. 9 authorizes the suspension of rights other than freedom of movement.657 Indeed, the plain language of Art. 9 suggests that in an appropriate case a state might suspend any of the rights set by the Refugee Convention.658 Cantor nonetheless sensibly argues that because the goal is to 651

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Edwards’ view (pace Davy, “Article 9,” at 800) that “[t]he suspension of rights continues until refugee status is granted, or if recognized as a refugee, the measures can remain in place as long as they are necessary [emphasis added]” (Edwards, “Temporary Protection,” at 622–623) seems to take no account of the clear language of Art. 9 mandating a specific determination that individuated continuation of measures post-recognition remains necessary. UN Doc. E/1850, Aug. 25, 1950, at 16. There is no indication that the rephrasing of the provision (“that the continuance of such measures is necessary in his case”) was intended to effect a substantive change of any kind. Quaere therefore the logic of Edwards’ invocation of unspecified parts of the travaux préparatoires to justify her rejection of a presumptive duty to terminate special measures upon recognition: Edwards, “Temporary Protection,” at 623, n. 156. This is clear both from the reference to the continuance of “such measures,” and from the inclusion of the provision as part of an article expressly dedicated to provisional measures. Art. 9 authorizes the “continuance” of provisional measures in exceptional cases, but not their initiation or reestablishment. See note 636. “Everyone would agree that a Government in time of crisis might be forced to intern refugees in order to investigate whether they were genuine or not and therefore a possible danger to the security of the country”: Statement of Mr. Bienenfeld of the World Jewish Congress, UN Doc. E/AC.32/SR.34, Aug. 14, 1950, at 18. See also Statement of Mr. Hoare of the United Kingdom, UN Doc. A/CONF.2/SR.28, July 19, 1951, at 6: “The kind of action which he envisaged States might take under the provisions of [Art. 9] would be, for example, the wholesale immediate internment of refugees in time of war, followed by a screening process, after which many could be released.” “Nothing in this Convention shall prevent a Contracting State . . . from taking provisionally measures which it considers to be essential”: Refugee Convention, at Art. 9. For example, the British representative to the Ad Hoc Committee had “wished to explain that the term ‘exceptional measures’ covered not only internment but such measures as restrictions on the possession of wireless apparatus, in order to prevent the reception of

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enable provisional measures, suspension of protection against expulsion or refoulement – the consequence of which would ordinarily be permanent – is not permissible by reliance on Art. 9.659 Just as the purport of Art. 9 is not limited to the drafters’ main concern to enable states to detain refugees, neither is the triggering event for Art. 9 limited to the drafters’ primary preoccupation with granting flexibility to states at “war.” Art. 9 rather grants state parties the discretion to withhold rights from refugees “in time of war or other grave and exceptional circumstances [emphasis added].” This is not to suggest, for example, that serious economic difficulties warrant a suspension of rights.660 Nor was it intended that this general language would allow a government to invoke “public order” concerns,661 or even general national security “interests.”662 It was understood that more than

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code messages and the conversion of receiving into transmitting apparatus”: Statement of Sir Leslie Brass of the United Kingdom, UN Doc. E/AC.32/SR.35, Aug. 15, 1950, at 8. Cantor, “Unintended Consequence,” at 368; see also C. Wouters, International Legal Standards for the Protection from Refoulement (2009), at 132. Cantor’s other reason for adopting this position – that each of Arts. 32 and 33 (on expulsion and refoulement respectively) contains an endogenous provision enabling states to deny protection for reasons of national security – is less persuasive, as the drafters might well have sought to liberate states from the strictures of those internal provisions when an asylum state is faced with war or a comparable situation. Edwards takes a different view, arguing “that the text reflects merely that nothing in the Convention prohibits derogation. It does not follow that derogation is permissible against all of the rights in the Convention”: Edwards, “Temporary Protection,” at 623. This leads her to contend that “non-discrimination provisions” and “the most fundamental of rights” (she mentions Arts. 3, 4, 8, and 33 as possible candidates) are not derogable under Art. 9: 624, 631. Davy in contrast opines that “Article 9 does not specify the articles of the 1951 Convention from which the contracting States may derogate. And Art. 9 does not contain a list of certain ‘core rights’ deemed nonderogable”: Davy, “Article 9,” at 783. Statement of Mr. Robinson of Israel, UN Doc. E/AC.32/SR.34, Aug. 14, 1950, at 21. A suggestion to adopt this traditional formulation made by Mr. Perez Perozo of Venezuela was not taken up by the drafters: UN Doc. E/AC.32/SR.35, Aug. 15, 1950, at 10. Thus, for example, the suggestion by Zimbabwe that it would “round up” urban refugees not employed or attending school in urban centers and remove them to refugee camps because “[s]ome of the refugees could end up being destitute or getting involved in illegal activities or prostitution for survival” would not be justified under Art. 9: see Daily News (Harare), May 20, 2002. But see Edwards, “Temporary Protection,” at 623. This language was suggested by Mr. Shaw of Australia: UN Doc. A/CONF.2/SR.6, July 4, 1951, at 13. It was, however, “felt that there might be reasonable grounds for objecting to the Australian proposal that the phrase ‘or in the interests of national security’ should be inserted, since it would enable a State to take exceptional measures at any time, and not only in time of war or a national emergency”: Statement of Mr. Hoare of the United Kingdom, ibid. at 14. See also Statements of Mr. Chance of Canada and Baron van Boetzelaer of the Netherlands, ibid. In the result, only a subset of national security concerns, namely those that arise during war or other grave and exceptional circumstances, were deemed sufficient to justify provisional measures. Kenya’s forcible removal of refugees from urban areas to designated camps because of “security challenges in . . .. urban centres and the need to streamline the management of refugees” (Kenya, Cabinet

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just “grave tension”663 is required; the circumstances must also truly be “exceptional.”664 It is surely true that there is a “grave and exceptional circumstance” affecting national security if the government of the asylum state is faced with the risk of overthrow by illegal means.665 There is also little doubt that national security may also be at risk where there is a fundamental threat to a state’s citizens, wherever they may be located.666 But as Lord Slynn observed for the House of Lords in Rehman, “I do not accept that these are the only examples of action which makes it in the interests of national security to deport a person.”667

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Secretary for Interior and Coordination of National Government, “Press Statement: Refugees and National Security Issues,” Mar. 20, 2014; see also “Kenya Orders All Refugees Back into Camps,” Al Jazeera, Mar. 26, 2014) therefore fails to demonstrate attention to the truly exceptional circumstances required by Art. 9. Yet the Conference of Plenipotentiaries noted that “the expression ‘national emergency’ seemed unduly restrictive”: Statement of Mr. Rochefort of France, UN Doc. A/CONF.2/ SR.6, July 4, 1951, at 14. The Australian delegate proposed the language “time of grave tension, national or international,” which was explicitly rejected by the Conference of Plenipotentiaries: UN Doc. A/CONF.2/SR.6, July 4, 1951, at 16. The French view that derogation should be allowed in the event of “cold war, approximating to a state of war, tension, a state of emergency or an international crisis calling for certain precautions” must therefore also be taken to have been impliedly rejected: ibid. at 14. This language was proposed by the representative of the Netherlands, and adopted by the British delegate in the motion which ultimately was approved at the Conference of Plenipotentiaries: ibid. at 16. “It must be borne in mind that . . . each government had become more keenly aware of the current dangers to its national security. Among the great mass of refugees it was inevitable that some persons should be tempted to engage in activities on behalf of a foreign Power against the country of their asylum, and it would be unreasonable to expect the latter not to safeguard itself against such a contingency”: Statement of Mr. Hoare of the United Kingdom, UN Doc. A/CONF.2/SR.16, July 11, 1951, at 8. See also Statement of Mr. Chance of Canada, ibid.: “In drafting [Art. 33], members of [the Ad Hoc] Committee had kept their eyes on the stars but their feet on the ground. Since that time, however, the international situation had deteriorated, and it must be recognized, albeit with reluctance, that at present many governments would find difficulty in accepting unconditionally the principle [of non-refoulement].” This is in line with the classic concern that “[i]f a refugee is spying against his country of residence, he is threatening the national security of that country . . . The same applies if he is engaged in activities directed at the overthrow by force or other illegal means of the government of his country of residence, or in activities which are directed against a foreign government, which as a result threatens the government of the country of residence with intervention of a serious nature”: A. Grahl-Madsen, “Expulsion of Refugees,” in P. Macalister-Smith and G. Alfredsson eds., The Land Beyond: Collected Essays on Refugee Law and Policy by Atle Grahl-Madsen 7 (2001), at 8. This was accepted even at the initial hearing level: Rehman v. Secretary of State for the Home Department, [1999] INLR 517 (UK SIAC, Sept. 7, 1999), per Potts J., at 528. This decision was subsequently considered in Secretary of State for the Home Department v. Rehman, [2000] 3 WLR 1240 (Eng. CA, May 23, 2000); and in Secretary of State for the Home Department v. Rehman, [2001] UKHL 47 (UK HL, Oct. 11, 2001), discussed below. Secretary of State for the Home Department v. Rehman, [2001] UKHL 47 (UK HL, Oct. 11, 2001), per Lord Slynn of Hadley, at [16].

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In line with greater contemporary concern about the risks of terrorism,668 senior courts have embraced a more ample understanding of national security.669 They have expressed concern that the traditional definition of national security, under which there was a requirement to show the risk of a direct impact on the host state, limits too tightly the discretion of the executive in deciding how the interests of the state, including not merely military defense but democracy, the legal and constitutional systems of the state, need to be protected. I accept that there must be a real possibility of an adverse effect on the [host state] for what is done by the individual under inquiry, but I do not accept that it has to be direct or immediate.670

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“It seems to me that, in contemporary world conditions, action against a foreign state may be capable indirectly of affecting the security of the United Kingdom. The means open to terrorists both in attacking another state and attacking international or global activity by the community of nations, whatever the objectives of the terrorist, may be capable of reflecting on the safety and well-being of the United Kingdom or its citizens. The sophistication of means available, the speed of movement of persons and goods, the speed of modern communication, are all factors which may have to be taken into account in deciding whether there is a real possibility that the national security of the United Kingdom may immediately or subsequently be put at risk by the action of others”: ibid. On the other hand, Davy advocates a restrictive understanding of national security, leading her to opine that “threats pertaining to international terrorism do not qualify as ‘other grave and exceptional circumstances’ within the meaning of Art. 9, at least as long as the threats do not coincide clearly with inter-State hostilities”: Davy, “Article 9,” at 794–795. Interpreting the similar notion of “public security,” the Court of Justice of the European Union recently determined that “this concept covers both the internal and external security of a Member State . . . Internal security may be affected by, inter alia, a direct threat to the peace of mind and physical security of the population of the Member State concerned . . . As regards external security, this may be affected by, inter alia, the risk of a serious disturbance to the foreign relations of that Member State or to the peaceful coexistence of nations”: K v. Netherlands, Dec. No. C-331/16 (CJEU, May 2, 2018), at [42]. See also JN v. Staatssecretaris voor Veiligheid en Justitie, Dec. No. C-601/15 PPU (CJEU, Feb. 15, 2016), at [66]; and HT v. Land Baden-Württemberg, Dec. No. C-373/13 (CJEU, June 24, 2015), at [78]. Scholarly opinion is divided on this question, with for example Davy arguing for “keeping the meaning of the term narrow,” specifically limited to “the integrity of the State only” (Davy, “Article 9,” at 797), while Edwards would include even “serious disturbances to public order” as within the scope of national security: Edwards, “Temporary Protection,” at 623. Secretary of State for the Home Department v. Rehman, [2001] UKHL 47 (UK HL, Oct. 11, 2001), per Lord Slynn of Hadley, at [16]. See also Attorney General v. Zaoui, Dec. No. CA20/04 (NZ CA, Oct. 1, 2004), at [135]: “It is clear from the travaux préparatoires for the Refugee Convention that there was intended to be a margin of appreciation for States in the interpretation of that phrase . . . Indeed, one would expect that views on security could well differ between States, depending on the particular circumstances of those States . . . Views as to what would constitute a danger to national security can also legitimately change over time.”

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Thus, the House of Lords in Rehman expressly authorized the executive to adopt a “preventative or precautionary” approach to the assessment of risks to national security,671 finding that “[t]he United Kingdom is not obliged to harbour a terrorist who is currently taking action against some other state (or even in relation to a contested area of land claimed by another state) if that other state could realistically be seen by the [executive] as likely to take action against the United Kingdom and its citizens.”672 The Supreme Court of Canada not only endorsed the logic of the Rehman decision, but defined a relatively liberal evidentiary framework for meeting the broadened test of a risk to national security. In Suresh, the Court first acknowledged that not every danger to the public of a host state rises to the level of a threat to national security,673 and that it was generally accepted that “under international law the state must prove a connection between the terrorist activity and the security of the deporting country.”674 In line with the House of Lords, it held that “possible future risks must be considered,”675 and that the risk to national security “may be grounded in distant events that indirectly have a real possibility of harming Canadian security.”676 But in defining how the ultimate question of a “real and serious possibility of adverse effect [on] Canada”677 should be proved, the Supreme Court of Canada went beyond the approach of the House of Lords to endorse what appears to be an evidentiary presumption grounded in modern global interdependence, namely that proof of a risk to the security of another country is generally probative of a threat to Canadian national security: International conventions must be interpreted in the light of current conditions. It may once have made sense to suggest that terrorism in one country did not necessarily implicate other countries. But after the year 2001, that approach is no longer valid [emphasis added].678

The implied assertion that terrorism in one country necessarily implicates the security of other countries is surely an empirical overstatement. But if understood to suggest simply that a connection is more likely than not, there are good grounds to accept the notion of a (rebuttable) presumption, namely that proof of risk to the most basic interests of one state by reason of the refugee’s actions justifies a prima facie belief that the refugee poses a risk to the national 671

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Secretary of State for the Home Department v. Rehman, [2001] UKHL 47 (UK HL, Oct. 11, 2001), per Lord Slynn of Hadley at [17]. Ibid. at [19]. 673 Suresh v. Canada, [2002] 1 SCR 3 (Can. SC, Jan. 11, 2002), at [84]. Ibid. at [85], citing J. Hathaway and C. Harvey, “Framing Refugee Protection in the New World Disorder,” (2001) 34(2) Cornell International Law Journal 257, at 289–290. Suresh v. Canada, [2002] 1 SCR 3 (Can. SC, Jan. 11, 2002), at [88]. Ibid. The views of the House of Lords and Supreme Court of Canada on this point were adopted by the New Zealand Court of Appeal in Attorney General v. Zaoui, Dec. No. CA20/04 (NZ CA, Oct. 1, 2004), at [147]. Suresh v. Canada, [2002] 1 SCR 3 (Can. SC, Jan. 11, 2002), at [88]. 678 Ibid. at [87].

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security of his or her host state. This more moderate notion seems to infuse the Court’s summary of the meaning of national security: [A] person constitutes a “danger to the security of Canada” if he or she poses a serious threat to the security of Canada, whether direct or indirect, and bearing in mind the fact that the security of one country is often dependent on the security of other nations. The threat must be “serious,” in the sense that it must be grounded on objectively reasonable suspicion based on evidence and in the sense that the threatened harm must be substantial rather than negligible [emphasis added].679

In sum, a refugee poses a risk to the host state’s national security if his or her presence or actions give rise to an objectively reasonable, real possibility of directly or indirectly inflicted substantial harm to the host state’s most basic interests, including the risk of an armed attack on its territory or its citizens, or the destruction of its democratic institutions.680 Importantly, though, even where a risk to national security is shown, Art. 9 authorizes officials to take only “measures which [the state] considers to be essential to the national security in the case of a particular person [emphasis added].” While this language makes clear that states are entitled to make this assessment for themselves, the right of self-judgement must still be exercised in good faith.681 While provisional measures may be taken collectively against all refugees, or in relation to a national or other subset of the refugee 679 680

681

Ibid. at [90]. While the drafters were primarily concerned to enable nationality-based withholding of rights, Davy’s position that only nationality-based measures are authorized by Art. 9 is not in keeping with the much more general language adopted: see Davy, “Article 9,” at 792, 794, 802. Edwards arguably goes too far in the opposite direction, suggesting that “derogations must be applied on an individual basis, based on the merits of that case, and they cannot be taken solely on the basis of nationality (per arts. 3 and 8)”: Edwards, “Temporary Protection,” at 622. This approach is not only at odds with the intentions of the drafters, but seems mistakenly to assume that all nationality-based differential treatment is discriminatory. In fact, only such treatment that is not objective and reasonable is discriminatory, a point conceded by Edwards herself: ibid. at 622. “[I]nternational practice, in particular the jurisprudence of the ICJ in . . . Djibouti v. France, supports the conclusion that self-judging treaty exceptions, unless they are clearly framed otherwise, do not constitute a bar to jurisdiction but merely modify the standard of review . . . This standard, as widely agreed, is whether the state in question has relied on a self-judging clause in good faith”: S. Schill and R. Briese, “‘If the State Considers’: Self-Judging Clauses in International Dispute Settlement,” (2009) 13(1) Max Planck Yearbook of United Nations Law 61, at 139. As the British drafter observed, “[i]t had therefore been decided that there should be a blanket provision whereby, in strictly defined circumstances of emergency, derogation from any of the provisions of the Convention would be permitted in the interests of national security [emphasis added]”: Statement of Mr. Hoare of the United Kingdom, UN Doc. A/CONF.2/SR.28, July 19, 1951, at 6. See also Davy, “Article 9,” at 798 (“Although Art. 9 explicitly accords discretion to States, their discretion is not unlimited. [They must] use their powers under Art. 9 in good faith”).

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population,682 a wholesale suspension of rights will only be justifiable as “essential” in response to an extremely compelling threat to national security. More generally, a restriction will only be “essential” if it is clearly framed and implemented in a manner that truly responds to the threat to national security.683 As observed by the High Court of Kenya in a challenge to the government’s order requiring all refugees to live in camps for reasons of national security, it is incumbent upon the State to demonstrate that in the circumstances . . . a specific person’s presence or activity in the urban areas is causing danger to the country and that his or her encampment would alleviate the menace . . . A real connection must be established between the affected persons and the danger to national security posed and how the indiscriminate removal of all urban refugees would alleviate the insecurity threats in those areas.684

In sum, provisional measures suspending refugee rights may only be taken in time of war or comparable exceptional circumstances, and on the basis of a good faith assessment that they are essential to protection of the receiving state’s most vital national interests. The specific actions authorized are broadranging, though they must be logically connected to eradication of the security 682

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The reference to measures “in the case of a particular person” was agreed to without any substantive discussion, apparently on the grounds that the original reference to “any person” was unduly general relative to the usual reference in the Convention to “refugees”: UN Doc. A/CONF.2/SR.6, July 4, 1951, at 13. Grahl-Madsen advocates a literal interpretation, under which a state should “restrict the applicability of provisional measures to individual persons, thus ruling out large scale measures against groups of refugees”: GrahlMadsen, Commentary, at 45. The concern, however, is that the drafters clearly did intend to give states leeway to take provisional measures against whole groups, including in particular large-scale provisional internment of persons arriving as part of a mass influx during a war or comparably grave circumstances: see text at notes 635–636. See also Davy, “Article 9,” at 800; and Edwards, “Temporary Protection,” at 624. An interpretation in line with this object and purpose can align with the text, since measures are taken in the case of a particular person whether they are directed against a particular person, or simply define the treatment of a particular person on the basis of a generalized assessment. The requirement that the provisional “measures . . . be essential . . . in the case of a particular person [emphasis added]” suggests that the government in question should satisfy itself that the consequential violation of the human rights of particular refugees is an unavoidable necessity to avert the security risks occasioned by war or other exceptional circumstances. A refusal to sanction resort to “avoidable” provisional measures is consistent with the insistence of the drafters that this authority be “exceptional” and reserved for “very special cases”: see text at notes 637–639. Davy suggests that the threshold test should be whether “ordinary measures, i.e. non-derogating measures, proved or are plainly inadequate for the maintenance of national security”: Davy, “Article 9,” at 794. Kituo Cha Sheria et al. v. Attorney General, Petitions Nos. 19 and 115 of 2013 (Ken. HC, July 26, 2013), at [87]. The result in this case was later overturned on different grounds in Samow Mumin Mohamed et al. v. Cabinet Secretary, Ministry of Interior, Dec. No. 2062011 (Ken. HC, June 30, 2014).

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concern and be justifiable as essential, taking full account of the particularized harms consequentially occasioned. Provisional measures may not be of indefinite duration, but instead normally come to an end if and when an individual’s refugee status is formally verified. While they may exceptionally be continued where case-specific national security concerns have not been resolved by the time refugee status is formally determined, provisional measures may not otherwise be applied against persons recognized as Convention refugees.

3.5.2 Exemption from Exceptional Measures Refugee Convention, Art. 8 Exemption from Exceptional Measures With regard to exceptional measures which may be taken against the person, property or interests of nationals of a foreign State, the Contracting States shall not apply such measures to a refugee who is formally a national of the said State solely on account of such nationality. Contracting States which, under their legislation, are prevented from applying the general principle expressed in this article, shall, in appropriate cases, grant exemptions in favour of such refugees. Outside the context of war or comparable crisis – addressed by Art. 9685 – the drafters of the Refugee Convention opposed any general right of states to suspend refugee rights.686 Of particular concern was the practice following the Second World War of subjecting refugees to confiscatory and other penalties imposed on enemy aliens: After the Second World War, many refugees who had been persecuted by the Governments of the Axis countries were subjected to exceptional measures taken against the nationals of enemy countries (internment, sequestration of property, blocking of assets, etc.) because of the fact that formally they were still de jure nationals of those countries. The injustice of such treatment was finally recognized and many administrative measures (screening boards, special tribunals, creation of a special category of “nonenemy” refugees, etc.) were used to mitigate the practice.687

To ensure that refugees would not be stigmatized by the fact of their formal nationality,688 the International Refugee Organization played an 685

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See Chapter 3.5.1. Because Art. 9 clearly provides that “[n]othing in this Convention [emphasis added]” prevents a state from taking provisional measures “in time or war or other grave and exceptional circumstances,” that clause ousts the general rules of Art. 8 where applicable. See Chapter 3.5.1 at notes 643–644. 687 Secretary-General, “Memorandum,” at 48. The nature of the dilemma is neatly summarized in Ad Hoc Committee, “First Session Report,” at 42: “Unless a refugee has been deprived of the nationality of his country of origin he retains that nationality. Since his nationality is retained, exceptional measures applied . . . to such nationals would be applied to him. The article provides therefore that

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instrumental role in persuading governments to adopt Art. 44 of the 1949 Geneva Convention relative to the Protection of Civilian Persons in Time of War: [T]he Detaining Power shall not treat as enemy aliens exclusively on the basis of their nationality de jure of an enemy State, refugees who do not, in fact, enjoy the protection of any Government.689

As the Secretary-General convincingly argued, “[i]f this rule is to be applied in time of war, a similar rule must a fortiori be applied in time of peace. The object of Art. [8] is to remove both the person and property and interest of refugees from the scope of exceptional measures.”690 Nor was the concern of the drafters restricted to the particular measures that had been taken at the end of the Second World War. The French representative to the Ad Hoc Committee observed that refugees were sometimes penalized during peacetime on the grounds of their formal nationality by subjection to both retaliatory measures and restrictions resulting from economic or financial crisis.691 While states required a margin of discretion to withhold rights from persons claiming refugee status during wartime, Mr. Juvigny insisted that there was no basis to assert a comparable prerogative during peacetime.692 The decision was therefore taken to separate the rules relating to exceptional measures applicable only during war or

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exceptional measures shall not be applied only on the grounds of his nationality.” The French delegate to the Ad Hoc Committee indicated that “the word ‘formally’ meant ‘legally’”: Statement of Mr. Juvigny, UN Doc. E/AC.32/SR.35, Aug. 15, 1950, at 7. GrahlMadsen concludes that “[t]he word ‘formally’ means ‘legally’ or de jure, that is to say, according to the municipal law of the State concerned”: Grahl-Madsen, Commentary, at 40. Geneva Convention relative to the Protection of Civilian Persons in Time of War, 75 UNTS 287 (UNTS 973), done Aug. 12, 1949, entered into force Oct. 21, 1950, at Art. 44. The Red Cross has affirmed that Art. 8 of the Refugee Convention “clearly reflects Article 44 of the Fourth Geneva Convention”: “Humanitarian Debate: Law, Policy, Action,” (2001) 83(843) International Review of the Red Cross 633. Secretary-General, “Memorandum,” at 48. “[T]he assumption of the Article is that, under certain circumstances, international law permits exceptional measures, defined as (punitive, preventive, or formally wrongful) measures employed by a State vis-à-vis another State or the nationals of another State, especially in times of conflict or dispute”: U. Davy, “Article 8,” in A. Zimmermann ed., The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary 755 (2011) (Davy, “Article 8”), at 757; see also Edwards, “Temporary Protection,” at 621 (“[A]rt. 8 actually carves out an exception to the generally accepted position at international law”). Statement of Mr. Juvigny of France, UN Doc. E/AC.32/SR.35, Aug. 15, 1950, at 5. The French representative noted the importance of “making a distinction between two types of exceptional measures . . . namely: on the one hand, measures taken in peacetime or during crises of a non-military type . . . and, on the other hand, measures taken in exceptional circumstances which affected peace or national security. The provisions relating to the latter type of measures would naturally be more severe than the former”: ibid.

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comparable emergencies (Art. 9) from those governing measures which might be taken at any time (Art. 8).693 The logic of exempting refugees from measures of retaliation or retorsion is fairly straightforward. The sorts of penalties sometimes applied against the citizens of a particular nationality during peacetime – for example, freezing or blocking of assets, the denial of visas, or curbing of civil liberties694 – are intended to punish or pressure the state of nationality to act or refrain from acting in a particular way. As observed above in the discussion of reciprocity,695 there is little reason to believe that a state which is the target of acts of retaliation or retorsion would be influenced by the suffering of persons who have rejected its protection by the act of seeking refugee status. The injustice of including refugees in the scope of exceptional measures is therefore clear. The context governed by Art. 8 is quite broad.696 It was agreed, for example, that Art. 8 governs resort to exceptional measures during a “cold war, approximating a state of war, tension, a state of emergency or an international crisis calling for certain internal precautions.”697 There could also be a temporary dispute between states, for example in consequence of trade concerns or the failure to pay damages.698 Diplomatic relations may have been suspended or 693

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“The measures referred to in article [8] were not designed only for times of emergency. A second paragraph should be added to cover the particular case of emergency in which the rights of refugees could be restricted, but only as little as was absolutely necessary”: Statement of Mr. Robinson of Israel, UN Doc. E/AC.32/SR.34, Aug. 14, 1950, at 22. In the Report of the Ad Hoc Committee, the two concerns were therefore addressed in different paragraphs of the same article. The Report notes simply that “the Committee thought it advisable to add a paragraph in order to clarify the application of this article in regard to measures related to national security in time of war and national emergency”: Ad Hoc Committee, “Second Session Report,” at 12. The Conference of Plenipotentiaries adopted a British proposal (UN Doc. A/CONF.2/26) to separate the two paragraphs into distinct articles of the Convention: UN Doc. A/CONF.2/SR.6, July 4, 1951, at 16. In historical context, exceptional measures have included “the duty of certain foreign nationals to register, internment, deportation, the prohibition to land or to embark, the assignment of residence, restrictions on the changing of names, restrictions with respect to professions or employment, restrictions with respect to communications or associations, or restrictions with respect to property (appointment of custodians) and to transactions in foreign currency, gold, or silver”: Davy, “Article 8,” at 772. See Chapter 3.2.2 at note 263. “[I]t was impossible to legislate for future possible contingencies . . . It was, therefore, important that [Art. 8] should be made as flexible as possible”: Statement of Mr. Petren of Sweden, UN Doc. A/CONF.2/SR.26, July 19, 1951, at 9. It is not textually limited to peacetime, though it can clearly be ousted by the more specific language of Art. 9 during time of war or other critical national emergency: see Chapter 3.5.1. Statement of Mr. Rochefort of France, UN Doc. A/CONF.2/SR.6, July 4, 1951, at 14. In the Ad Hoc Committee, the Israeli representative “inquired whether the article was broad enough to include possible retaliation and retorsion by countries against subjects of States with which they had a temporary disagreement. He did not think that exceptional measures of that kind should apply to refugees from countries against whose subjects such

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broken off completely. In all such circumstances, whatever measures may be taken en bloc against the citizens of the offending state may not be applied against refugees,699 irrespective of the duration and character of a particular refugee’s presence.700 There are two important qualifications to this general rule. First, the duty to exempt refugees from exceptional measures governs only measures taken solely on the grounds of nationality.701 Because the objective of Art. 8 is to avoid unfairly stigmatizing refugees on the basis of their possession of a formal, but de facto ineffective, nationality,702 only “wholesale measures”703 defined by nationality contravene Art. 8. Robinson observes that

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measures were directed”: Statement of Mr. Robinson of Israel, UN Doc. E/AC.32/SR.21, Feb. 2, 1950, at 7. The Chairman, Mr. Chance of Canada, confirmed that such measures would be precluded by Art. 8: ibid. at 8. The claim that “[e]xceptional measures within the meaning of Art. 8 of the 1951 Convention must be individualized” (Davy, “Article 8,” at 772) is odd, given both the class-based nature of the historical exceptional measures that motivated the drafting of Art. 8 and the fact that Art. 8 refers to “measures which may be taken against the person, property or interests of nationals of a foreign State [emphasis added]”: Refugee Convention, at Art. 8. Indeed, as Grahl-Madsen suggests, because Art. 8 is not framed to require territorial attachment it likely operates to exempt a refugee from nationality-based exceptional measures in any country that exercises jurisdiction over him or her. “There can be no doubt that the Article applies to all Convention refugees, irrespective of whether they are present in the territory of the Contracting State concerned, and irrespective of the duration and character of their presence (legal or illegal). Consequently country A may not apply exceptional measures (for example sequestration of property) to a refugee from country B who has found asylum and is living in country C”: Grahl-Madsen, Commentary, at 40. Davy’s criticism of Grahl-Madsen’s position (see Davy, “Article 8,” at 769) needlessly invokes the notion of “special title” at international law, rather than focusing on the more clearly applicable notion of the level of attachment for Art. 8 rights. “[T]he word ‘solely’ . . . indicated that, while exceptional measures could be taken against refugees, they could not be taken on the grounds of nationality alone”: Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.21, Feb. 2, 1950, at 7. This understanding was affirmed by both the Turkish representative, ibid., and by the Chairman, Mr. Chance of Canada, ibid. at 8: “[T]he article would prevent exceptional measures of retaliation or retorsion from being applied to refugees solely on the grounds of their nationality.” “Article 8 does not mention former nationals of a foreign State. If, however, measures are taken against persons solely because they are, or have been (at any time) or are suspected of being, nationals of a certain State, it goes without saying that the case will fall within the scope of Article 8”: Grahl-Madsen, Commentary, at 40. See also Statement of the President, Mr. Larsen of Denmark, UN Doc. E/AC.32/SR.35, Aug. 15, 1950, at 6; and Robinson, History, at 93–94: “[I]n practice denaturalized citizens of an enemy state or persons whose origin was in such a state were frequently subjected to all or some of the measures taken against nationals. A proper interpretation of Art. 8 would lead us to the conclusion that mere former citizenship or origin in such a state cannot a fortiori be a reason for the application of exceptional measures to a refugee.” Weis, Travaux, at 75.

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a state is free to apply to a refugee exceptional measures if they are taken on grounds other than his [formal] nationality. Thus Art. 8 . . . would not hinder the application of exceptional measures on account of the economic or political activity or special unwanted contacts of a refugee, if such activity or contacts are, in general, a reason for applying all or some of the exceptional measures.704

As this analysis suggests, the critical issue is the generality of the measure in question.705 So long as the exceptional measure is not aimed simply at persons of a particular nationality, but is instead applicable to all persons who meet the contingent standard that governs the right suspended, then refugees cannot complain when they too are subject to its impact.706 For example, refugees are entitled to property rights on terms “not less favourable than [those] accorded to aliens generally in the same circumstances.”707 Confiscatory exceptional measures applied to all aliens (whatever their nationality) would thus not contravene Art. 8. On the other hand, refugees are entitled to access rationing systems on terms of equality with nationals of the asylum state.708 Exceptional measures directed to aliens generally cannot therefore lawfully be applied against refugees, since refugees are outside the scope of the group legally subject to the measures. Importantly, though, even exceptional measures that do not contravene Art. 8 may nonetheless be challenged on the basis of the general duty of non-discrimination,709 though the margin of appreciation usually accorded states may undercut the utility of that remedy.710 Second, the goal of Art. 8 is to ensure that exceptional measures defined by nationality do not, in practice, result in the denial of rights to refugees. The 704 705

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Robinson, History, at 91. See Grahl-Madsen, Commentary, at 39: “The reference to ‘nationals of a foreign State’ considerably restricts the applicability of the Article. It does not apply to measures which may be taken against stateless persons as such, or against aliens generally, not to speak of measures which are directed at one’s nationals and aliens without discrimination.” “The Belgian representative appeared to be opposed to any possibility of interning refugees; the text however only prohibited such internment if it were effected simply on account of the refugees’ nationality. In 1939–40, and at later periods, the French authorities had interned not only aliens, but also a few French nationals suspected of fifthcolumn activities. Such a measure, which only conditions of crisis could justify, could not be prohibited under article [8]”: Statement of Mr. Juvigny of France, UN Doc. E/AC.32/ SR.35, Aug. 15, 1950, at 7. Refugee Convention, at Art. 13. 708 Ibid. at Art. 20. The general duty to ensure equal protection of the law without discrimination under Art. 26 of the Civil and Political Covenant applies to all laws and policies: see Chapter 1.5.5. Davy’s concerns about the salience of non-discrimination law do not take account of this broader obligation: Davy, “Article 8,” at 765. In any event, and contrary to Davy’s claim that Art. 8 conflicts with the endogenous guarantee of non-discrimination in Art. 3, Art. 8 “is a non-discrimination principle, reemphasizing the non-discrimination clause in art. 3”: Edwards, “Temporary Protection,” at 621. See Chapter 1.5.5 at note 484 ff.

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Swedish government waged a determined battle at the Conference of Plenipotentiaries to ensure that Art. 8 was not understood to require governments to rewrite domestic laws that fail to codify an exemption from exceptional measures in the case of refugees. Originally, the Swedish objective seemed to be to grant states a near-complete right to decide for themselves when refugees should benefit from an exemption from exceptional measures.711 But as the Belgian representative noted, the validation of state discretion to define the circumstances in which exemption is warranted “would considerably reduce the rights accorded to refugees by the Convention.”712 More specifically: It was . . . to be feared that [the Swedish approach] would result in a regime of arbitrary decisions, since countries of residence would be at liberty either not to apply to a refugee the exceptional measures which they might be obliged to take against the person, property or interests of other nationals of his country of origin, or to grant certain exemptions in the case of such refugees. Refugees would therefore have no absolute right to exemption from the application of those measures, and decisions as to the cases in which exemption was appropriate would be left to Governments.713

Even more emphatically, the Canadian representative asserted that the Swedish initiative resulted in an approach to Art. 8 that was “guilty of the unhappy fault of, so to speak, taking away with one hand what it gave with the other. In its original form, and before an attempt had been made to take into account the circumstances and laws of a certain country, the article had consisted of a simple and straightforward statement.”714 Confronted with such direct attacks, the Swedish government sought to downplay the significance of the amendment it had sponsored to the text of 711

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Sweden asserted that “[o]ne could easily imagine cases in which it would appear fully justified to maintain the confiscation of the property of a refugee even if that property, in his hands, did not constitute a menace to national security. A person might for instance have fled from Nazi Germany at a very late stage of the Second World War after having been a militant Nazi up to then. Should States decide to take certain measures against the nationals of another State, it would have to be left to their administrations to decide whether refugees from the country in question could be exempted from them”: Statement of Mr. Petren of Sweden, UN Doc. A.CONF.2/SR.27, July 18, 1951, at 28–29. Yet, as the British representative subsequently observed (UN Doc. A/CONF.2/SR.28, July 19, 1951, at 8), each state party would first have to determine whether or not the individual in question even qualified as a refugee. In the case cited by the Swedish delegate, there is good reason to believe that exclusion from refugee status under Art. 1(F)(a) is a real possibility. In any event, it is unclear that a militant Nazi fleeing Nazi Germany would in any sense have a well-founded fear of being persecuted in Nazi Germany. Statement of Mr. Herment of Belgium, UN Doc. A/CONF.2/SR.27, July 18, 1951, at 31. Statement of Mr. Herment of Belgium, UN Doc. A/CONF.2/SR.28, July 19, 1951, at 8. Statement of Mr. Chance of Canada, UN Doc. A/CONF.2/SR.34, July 25, 1951, at 18.

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Art. 8. It insisted that the addition of the words “or shall provide for appropriate exemptions in respect of such refugees”715 was simply intended to allow governments the option of meeting their Art. 8 obligation either by way of a generic exemption for refugees from exceptional measures, or by extending case-specific exemptions to all refugees.716 Whichever option is taken, the result is the same, namely, a mandatory duty to exempt refugees from exceptional measures.717 As the President of the Conference concluded, “the problem turned on the question of whether the application of certain measures should be ensured by means of automatic legislation or by means of exemptions. In either case the obligations of the State would be the same [emphasis added].”718 In a last-minute effort to capture the essence of this consensus,719 the Canadian representative persuaded delegates to accept an oral amendment to the previously accepted Swedish phrasing of Art. 8. Sadly, the precise language chosen can be construed in a way that gives rise to the very concern that both the Canadian delegate and the Conference as a whole appeared determined to avoid.720 Instead of the Swedish language “or shall provide for appropriate exemptions in respect of such refugees,”721 the Canadian amendment adopted by the Conference provides that state parties whose domestic legislation prevents the granting of en bloc exemption from exceptional measures to 715 716

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UN Doc. A/CONF.2/37. The French representative’s view of the Swedish approach was that it “was very far from suggesting measures of an illiberal nature. It laid upon states the obligation to grant certain exemptions at the time when they were unable to observe the general principle enunciated in the article. If that principle was not acceptable to States, they would enter a general reservation to the article. He would interpret the words ‘ou accorderont’ as imposing an obligation to grant exemptions”: Statement of Mr. Rochefort of France, UN Doc. A/ CONF.2/SR.34, July 25, 1951, at 20. “Either legislation could be passed exempting certain categories of aliens from the application of the enemy property act, or some arrangement could be made to enable such persons to claim the return of their property provided they could substantiate their right to restoration. Those two possibilities must both be allowed for, or administrative difficulties would arise”: Statement of Mr. Petren of Sweden, UN Doc. A/CONF.2/SR.28, July 19, 1951, at 8. Statement of the President, Mr. Larsen of Denmark, UN Doc. A/CONF.2/SR.34, July 25, 1951, at 19. “[H]e believed that the meeting was on the brink of agreement. There was no objection to the general principle that no exceptional measures should be applied to a refugee solely on account of his nationality”: Statement of Mr. Chance of Canada, ibid. at 22. “The Conference posed the question whether the word ‘shall’ should be interpreted as being mandatory or permissive and came out firmly in favor of the first interpretation[]. With regard to substance if not to form, the obligations of the Contracting States would be the same whether they based themselves on the first or the second sentence”: Grahl-Madsen, Commentary, at 41. Robinson, however, takes the view that “the second sentence (included by the Conference) considerably restricts the import of this article . . . It is obvious that the sentence was included in order to ‘appease’ states which are not or would not be willing to accept the general rule as expressed in the first sentence”: Robinson, History, at 90–91. UN Doc. A/CONF.2/37.

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refugees “shall, in appropriate cases, grant [exemptions] in favour of such refugees [emphasis added].”722 Thus, even though the Swedish government had been content with language that appeared quite clearly to impose a mandatory duty to exempt all refugees (albeit via a process of particularized exemptions), the literal text of the Canadian amendment – which includes the qualifying phrase “in appropriate cases” – may be read to suggest that there will be some cases in which exemption will not be appropriate, and hence not necessary.723 This is clearly a case in which reliance simply on the plain language of the treaty would result in an interpretation that is inconsistent not only with the general purpose of the Refugee Convention, but moreover with the express intention of every state that addressed the intended scope of Art. 8 at the Conference of Plenipotentiaries.724 This unhappy result can easily be avoided, however, by seeing the reference to “appropriate cases” not as an invitation to deny exemption to some refugees, but as a shorthand reference to “refugees who would otherwise have been caught by nationality-based exceptional measures.” The second sentence of Art. 9 does make clear, however, that states need not formally enact exemptions from exceptional measures that accrue to the benefit of refugees, so long as they are prepared in practice dependably to grant refugees exemption from such measures.725 Art. 8 sadly remains of contemporary relevance to refugees. While states impose nationality-based exceptional measures much less frequently than in the past,726 the ability effectively to contest any such measures based only on the general duty not to discriminate in international law remains 722

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The oral amendment proposed by Canada referred to “exceptions” rather than “exemptions”: Statement of Mr. Chance of Canada, UN Doc. A/CONF.2/SR.34, July 25, 1951, at 22. See e.g. Robinson, History, at 93: “What these cases are depends on what the law provides; in other words, by domestic legislation the state can fix the instances in which exemption is granted but the limits cannot be such as to refuse exemption when it would not threaten the proper application of the measures and their contemplated effects.” Despite the clear drafting history and context, Davy seems to rely on bald text erroneously to suggest that the second clause of Art. 8 is an “escape clause,” “allow[ing] for a derogation . . . from the principle laid down in the first sentence”: Davy, “Article 8,” at 768, 765. This is not so. The second clause merely enables the duties under the first sentence to be met by dependably and routinely granting refugees exemptions from exceptional measures rather than by legislating generally to exempt refugees from all such measures, as the first clause assumes. Robinson argues that “[i]f, as seems to be the case, ‘legislation’ refers not only to past but also to future laws, the second sentence is an ‘invitation’ to enact [legislation prohibiting en bloc exemption from exceptional measures for refugees], wherever it does not yet exist. From the viewpoint of a state it is undoubtedly more prudent not to be bound by a general rule of exemption”: Robinson, History, at 93. It is unclear that this is so. Given the consensus in favor of a duty to exercise discretion in favor of refugees, the net result may simply be increased processing costs for the asylum country. Yet as Davy rightly observes, “[i]n the United States, exceptional measures are still an issue today, now coined ‘emergency economic powers’”: Davy, “Article 8,” at 772.

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unclear.727 As analyzed in detail above, the drafters of the Civil and Political Covenant recognized that states enjoy latitude to allocate some rights differentially without engaging in discriminatory conduct.728 This ambiguity is reflected in the jurisprudence of the UN Human Rights Committee related to noncitizens: even as the Committee has insisted that nationality-based differentiation cannot be assumed to be reasonable and hence non-discriminatory, it nonetheless takes the view that “it is necessary to judge every case on its own facts.”729 Under this approach, for example, the Committee has found nationality-based differentiation under bilateral treaties, in national regulations governing access to administrative appeals, and under domestic processes for security assessment to be reasonable and thus not discriminatory.730 An especially worrisome signal is moreover sent by the fact that while the fungible emergency derogation authority under the Covenant prohibits discrimination on a number of grounds, nationality is not among them.731 In this context, the unambiguous guarantee in Art. 8 of the Convention – that refugees must always be exempted from nationality-based exceptional measures, whether that exemption is achieved by general enactment or by the routine and dependable granting of exceptions – is a powerful bulwark against refugees being disfranchised in the context of interstate strife between their country of origin and their asylum state.732 727

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“The extent to which refugees are presently privileged by the article depends on the permissibility of exceptional measures under international law in general. The more human rights law or humanitarian law undermine the legitimacy of exceptional measures, the fewer the privileges [that] derive from the provisions of Art. 8”: Davy, “Article 8,” at 758. See Chapter 1.5.5 at note 450. Ibid. at note 483. The conclusion that exceptional measures always violate Art. 26 of the Covenant is thus overly optimistic: see Davy, “Article 8,” at 777. See Chapter 1.5.5 at note 471 ff. Civil and Political Covenant, Art. 4(1) (which prohibits discrimination under emergency derogation authority only to the extent that it is “solely on the grounds of race, colour, sex, language, religion or social origin”). Even the more specialized Racial Discrimination Convention, which disallows race-based discrimination (said to include “national origin”) during even an emergency, nonetheless allows nationality-based differentiation that is adjudged non-discriminatory – i.e. that is found to be objective and reasonable, raising the specter of deference to state understandings of what is required in a particular circumstance: International Convention on the Elimination of All Forms of Racial Discrimination, 60 UNTS 195 (UNTS 9464), Dec. 21, 1965, entered into force Jan. 4, 1969, at Arts. 1(3), 2, 5. There is no basis for Edwards’ view that “Article 8 does not, however, exempt entirely refugees from exceptional measures; only if the measures are discriminatory in nature”: Edwards, “Temporary Protection,” at 622. To the contrary, whereas international human rights law does require evidence of discrimination, Art. 8 makes no reference to discrimination but instead requires simply that “the Contracting States shall not apply such measures to a refugee who is formally a national of the said State solely on account of such nationality”: Refugee Convention, at Art. 8.

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4 Rights of Refugees Physically Present

This chapter addresses those rights that follow automatically and immediately from the simple fact of being a Convention refugee within the effective jurisdiction of a state party. These primary protection rights must continue to be respected throughout the duration of refugee status, with additional rights accruing once the asylum-seeker’s presence is regularized, and again when a refugee is allowed to stay or reside in the asylum country. Convention rights can obviously not be claimed until all the requirements of the Convention refugee definition are satisfied, including departure from one’s own state.1 But since refugee rights are defined to inhere by virtue of refugee status alone, they must be respected by state parties until and unless a negative determination of the refugee’s claim to protection is rendered. This is because refugee status under the Convention arises from the nature of one’s predicament rather than from a formal determination of status.2 Refugee rights, however, remain inchoate until the refugee comes under the de jure or de facto jurisdiction of a state party to the Convention since the Convention binds particular state parties, each of which is required to meet obligations only within its own sphere of authority.3 Assuming that these two conditions are met, what rights ought refugees to be able to invoke as matters of basic entitlement, whether or not their status has 1

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“For the purposes of the present Convention, the term ‘refugee’ shall apply to any person who . . . is outside the country of his nationality and is unable or . . . is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence . . . is unable or . . . unwilling to return to it [emphasis added]”: Convention relating to the Status of Refugees, 189 UNTS 2545 (UNTS 2545), done July 28, 1951, entered into force Apr. 22, 1954 (Refugee Convention), at Art. 1(A)(2). See generally J. Hathaway and M. Foster, The Law of Refugee Status (2014) (Hathaway and Foster, Refugee Status), at 17–90. “A person is a refugee within the meaning of the 1951 Convention as soon as he fulfils the criteria contained in the definition. This would necessarily occur prior to the time at which his refugee status is formally determined. Recognition of his refugee status does not therefore make him a refugee but declares him to be one. He does not become a refugee because of recognition, but is recognized because he is a refugee”: UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status (1979, re-issued 1992 and 2019) (UNHCR, Handbook), at 9. See Chapter 3.1 at note 28 ff. See Chapter 3.1.1 at note 56.

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been formally assessed? While the extension of some rights can logically be delayed until a refugee’s status has been regularized, for example by admission to a procedure for verification of refugee status, which refugee interests should be immediately and unconditionally recognized? Six categories of rights inhere immediately upon accessing a state party’s jurisdiction. First, persons who claim to be refugees are generally entitled to enter and remain in the territory of a state party until and unless they are found not to be Convention refugees. Second, they should not be arbitrarily detained or otherwise penalized for seeking protection. Third, it should be possible to meet essential security and economic subsistence needs while the host state takes whatever measures it deems necessary to verify their claim to Convention refugee status. Fourth, basic human dignity is to be respected, including by acknowledging property and related rights, preserving family unity, honoring freedom of thought, conscience, and religion, and providing primary education to refugee children. Fifth, authoritative documentation of identity and status in the host state should be made available. Sixth, asylumseekers must have access to a meaningful remedy to enforce their rights, including to seek a remedy for breach of any of these primary protection rights.

4.1 Right to Enter and Remain in an Asylum State (Non-refoulement) The most urgent need of refugees is to secure entry into a territory in which they are sheltered from the risk of being persecuted. This fundamental concern must somehow be reconciled to the fact that nearly all of the earth’s territory is controlled or claimed by governments which, to a greater or lesser extent, restrict access by non-citizens. This clash of priorities has led to proposals to lease4 or purchase5 land from states on which to shelter refugees. There have even been attempts to establish internationally supervised sanctuaries for would-be refugees within the territory of their home states including, for example, a plea from Bangladesh in 2017 that the international community establish a “safe zone” for at-risk Rohingya inside Burma.6 To date, however, limited international authority and resources have prevented these options from replacing entry into a foreign state as the most logical means to access 4

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E. Burton, “Leasing Rights: A New International Instrument for Protecting Refugees and Compensating Host Countries,” (1987) 19(1) Columbia Human Rights Law Review 307. In 2015, two wealthy individuals proposed purchasing islands on which refugees could live: A. Taylor, “A Silicon Valley Mogul Wants to Solve the Global Refugee Crisis by Creating a New Country,” Washington Post, July 23, 2015; CNN, “Egyptian Billionaire Offers to Buy Island for Refugees,” Sept. 10, 2015. “The Solution Lies in Myanmar: Bangladesh Wants ‘Safe Zones’ set up to Protect Rohingya,” South China Morning Post, Sept. 8, 2017.

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safety.7 The stakes are high: refugees denied admission to a foreign country are likely either to be returned to the risk of persecution in their home state, or to be thrown into perpetual “orbit” in search of a state willing to authorize entry.8 There are many historical cases which illustrate the potentially grave consequences of a failure to recognize this need of refugees to be able to enter another state. A particularly notorious example involved 907 German Jews who fled persecution in their homeland aboard the ocean liner St. Louis. After the Cuban government refused to recognize their entrance visas, these refugees were denied permission to land by every country in Latin America. The United States dispatched a gunboat to ensure that the St. Louis remained at a distance which prevented its passengers from swimming ashore. Canada argued that the passengers of the St. Louis were not a Canadian problem. As Abella and Troper observe, “the Jews of the St. Louis returned to Europe, where many would die in the gas chambers and crematoria of the Third Reich.”9 Modern refugees may similarly face the complete closure of borders. In April 1991, Kurdish Iraqis fleeing reprisals following a failed uprising against Saddam Hussein confronted a closed border with Turkey, leaving them stranded and unprotected.10 Both Zaïre and Tanzania at times simply closed their borders to refugees attempting to flee the brutal conflict for dominance between Hutus and Tutsis in northeastern Africa.11 Macedonia admitted 7

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These regimes are effectively critiqued in B. Frelick, “Preventive Protection and the Right to Seek Asylum: A Preliminary Look at Bosnia and Croatia,” (1992) 4(4) International Journal of Refugee Law 439; and A. Shacknove, “From Asylum to Containment,” (1993) 5(4) International Journal of Refugee Law 516. See C. Pastore, Refugees in Orbit: The Problem of Refugees Without a Country of Asylum (1986). I. Abella and H. Troper, None is Too Many: Canada and the Jews in Europe 1933–1948 (1992), at 64. “The reluctance to accommodate the Kurds was political rather than capacity-based, as evidenced by the willingness of the Turkish state to receive 350,000 Bulgarian Turks for permanent settlement in 1989”: K. Long, “No Entry! A Review of UNHCR’s Response to Border Closures in Situations of Mass Refugee Influx,” UNHCR Policy Development and Evaluation Service, June 2010 (Long, “Review of UNHCR’s Response”), at [103]. On August 19, 1994, Deputy Prime Minister Malumba Mbangula of Zaïre declared that no refugees would be allowed to cross from Rwanda into Zaïre. Immediately prior to his announcement, 120 refugees per minute had been crossing into Zaïre at the frontier post of Bakavu: “Le Zaïre ferme ses frontières aux réfugiés,” Le Monde, Aug. 22, 1994, at 4. As some 50,000 refugees attempted to flee ethnic clashes in Burundi, the Tanzanian government officially closed its border with Burundi on March 31, 1995: US Agency for International Development, “Rwanda: Civil Strife/Displaced Persons Situation Report No. 4,” Apr. 5, 1995, at 4. The Tanzanian Prime Minister told Parliament that “[t]he gravity of the situation, especially for those coming from Burundi and Rwanda, has made it inevitable for Tanzania to take appropriate security measures by closing her border with Burundi and Rwanda”: Speech by the Prime Minister to the Parliament of Tanzania, June 15, 1999, at 5, on file at the library of the Oxford University Refugee Studies Centre. Tanzania’s Foreign Minister reportedly told his Parliament that “[e]nough is enough. Let us tell the refugees

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Kosovar refugees until the end of March 1999, at which time it commenced a policy of deliberately obstructing their entry.12 Frustrated by international funding shortfalls and the continuing arrival of hundreds of thousands of Afghan refugees, Pakistan and Tajikistan closed their borders to Afghan arrivals in November 2000.13 Kenya closed its border with Somalia in 2007, citing both national security concerns and the difficulties it faced hosting more than 200,000 refugees already within its territory.14 Uzbekistan closed its borders after some 100,000 Kyrgyz refugees arrived over a four-day period.15 Despite providing a haven for many refugees from Syria’s civil war, the Jordanian government closed its borders to Palestinian refugees in 2012;16 Syrian refugees more generally were blocked by Jordan from 2014, and by Lebanon and Turkey starting in 2015.17 Following the warming of Cuba–United States relations in

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that the time has come for them to return home, and no more should come”: “Border Closure Triggers Debate,” Guardian, July 19, 1995. See also Long, “Review of UNHCR’s Response,” at 25. Long, “Review of UNHCR’s Response,” at 33. 13 Ibid. at 43–44. “Kenyans Close Border with Somalia,” BBC, Jan. 3, 2007. “Kenya’s concerns about an Islamist threat were combined with more general security concerns about the porous nature of the 1,200 kilometre Kenya-Somali border and its effects on organized crime . . . Some observers, however, consider that other factors were also at play . . . Although ethnic Somali citizens constitute only a small percentage of Kenya’s population, some observers believe that the concern to halt the flow of Somalis across the border is motivated by a fear of the growing size of the ethnic Somali population in Kenya as a whole”: Long, “Review of UNHCR’s Response,” at [314]–[316]. Stressing the need for humanitarian aid to cope with the numbers arriving, Deputy Prime Minister Abdullah Aripov stated that “[t]oday we will stop accepting refugees from the Kyrgyz side because we have no place to accommodate them and no capacity to cope with them . . . If we have the ability to help them and to treat them of course we will open the border”: “Kyrgyzstan Violence: Uzbekistan Closes Border to Refugees,” Telegraph, June 15, 2010. “In declaring the policy, Jordanian Prime Minister Abdullah Ensour argued that Palestinians from Syria should be allowed to return to their places of origin in Israel and Palestine . . . The head of Jordan’s Royal Hashemite Court told Human Rights Watch in May 2013 that the influx of Palestinians would alter Jordan’s demographic balance and potentially lead to instability. In accordance with this policy, Jordanian security forces turn away Palestinians from Syria at Jordan’s borders, and seek to detain and deport back to Syria those who enter at unofficial border crossings using forged Syrian identity documents, or those who enter illegally via smuggling networks”: Human Rights Watch, “Not Welcome: Jordan’s Treatment of Palestinians Escaping Syria,” Aug. 7, 2014. Human Rights Watch, “Jordan: Syrians Blocked, Stranded in Desert,” June 3, 2015. Jordan fully closed its last remaining point of entry in June 2016 following a car bombing that killed six in the buffer zone that separated the two countries: R. Sweis, “Jordan Closes Border to Syrian Refugees After Suicide Car Bomb Kills 6,” New York Times, June 21, 2016. “Lebanon ended its open-door policy for Syrians in January 2015 when it introduced new regulations requiring them to apply for difficult-to-obtain visas or a Lebanese sponsor before being admitted. And then in January 2016, the Turkish government began to require visas for Syrians arriving by land or sea, effectively cutting off Lebanon as a route to Europe. Other options are bleak. The heavily militarised and UN-patrolled border with Israel leads

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late 2014,18 Nicaragua closed its southern border to Cuban refugees traveling north;19 within months both Costa Rica and Panama followed suit.20 Macedonia, Serbia, Croatia, and Slovenia similarly closed their borders in a concerted effort to stem the flow of Syrian and other refugees into northern Europe via the “Balkan route.”21 Barriers to entry can serve much the same end as complete border closures. During the apartheid era, South Africa erected a 3,000 volt electrified, razorwire fence to prevent the entry of refugees from Mozambique.22 Increased flows of refugees to Europe in 2016 led to the erection by Hungary of razorwire fences along its borders, explicitly acknowledged to be a means of preventing the arrival of refugees.23 France and the United Kingdom have

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to the contested Golan Heights. Asylum seekers cannot cross. Iraq, particularly the semiautonomous Kurdistan region, saw an influx of Syrian refugees in 2013. The borders are now mostly closed to asylum seekers”: E. Vio, “No Way Out: How Syrians Are Struggling to Find an Exit,” IRIN News, Mar. 10, 2016. See also Human Rights Watch, “Iraq/Jordan/ Turkey: Syrians Blocked from Fleeing War,” July 1, 2013. See The White House Office of the Press Secretary, Fact Sheet, Charting a New Course on Cuba, Dec. 17, 2014; G. Allen, “Cuban Immigrants Flow into the US, Fearing the Rules Will Change,” National Public Radio, Dec. 29, 2015. The measure was reportedly in response to Costa Rica’s issuance of transit visas to more than 1,000 Cubans detained at its border with Panama, a decision Nicaragua’s government accused of “sparking a ‘humanitarian crisis’”: O. Rivas, “Nicaragua Closes Border to Cuban Migrants, Rebukes Costa Rica,” Reuters, Nov. 15, 2015. However, the border closure also prevented the entry of refugees arriving from Africa: R. Reichard, “Nicaragua’s ClosedBorder Policy Keeps Thousands of African Migrants Stranded,” Latina, Oct. 13, 2016. “In November, Nicaragua closed its borders to Cubans, creating a backlog of islanders in neighboring Costa Rica. That country ultimately shut its border to new arrivals in May, creating swelling numbers in Panama. In June, Panama shut down its southern border, forcing Colombia to address the issue”: J. Wyss, “Colombia Denies Airlift for Cuban Migrants, to Begin Deportations,” Miami Herald, Aug. 2, 2016. P. Kingsley, “Balkan Countries Shut Borders as Attention Turns to New Refugee Routes,” Guardian, Mar. 9, 2016; see also “Europe Migrant Crisis: Balkans Route Shuts Down as EU–Turkey Deal Fails to Deter Asylum Seekers,” ABC, Mar. 9, 2016. A year after the closure of the Balkan route, tens of thousands of refugees still traversed this route through Central Europe, and reports claimed that the closure had simply made the journey “more difficult, expensive, and brutal” without truly stemming the flow: A. Dernbach and D. Tagesspiegel, “Balkan Migration Route is ‘Not Closed,’” Euractiv, Mar. 13, 2017. As of 1990, official statistics reported that ninety-four refugees had been killed trying to get through the fence: C. Nettleton, “Across the Fence of Fire,” (1990) 78 Refugees 27, at 27–28. But observers report that the toll was likely much higher. “On the 9th of July 1988, while on a visit to the fence . . . a soldier on the border assured me that while patrolling the fence he used to find between 4–5 bodies per week (in the fence) which, if true, would then mean an average of 200 casualties per year on the southern section of the fence”: South African Bishops’ Conference, Bureau for Refugees, “The Snake of Fire: Memorandum on the Electric Fence between Mozambique and South Africa” (1989), at 2–3. Prime Minister Viktor Orbán was unequivocal about the purpose of the razor-wire fences along the border with Serbia, saying “[i]f it doesn’t work with nice words, we’ll have to stop them with force, and we will do so”: “Hungary to Build Second Border Fence to Stop

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installed a permanent concrete barrier along the port of Calais to deter asylumseekers from reaching Britain.24 Perhaps most alarmingly, refugees have sometimes been fired upon in order to drive them away. Namibia imposed a dusk-to-dawn curfew – with soldiers being ordered to shoot violators – along a 450 km stretch of the Kavango river in late 2001. This effectively prevented Angolan refugees seeking to escape violence in that country’s Cuando Cuban Province from being able to seek asylum, since Angolan government and UNITA patrols could be safely avoided only at night.25 Syrians seeking protection have been attacked by Turkish border guards,26 African refugees have been killed by Egyptian security forces as they attempted to cross into Israel,27 and rubber bullets and five smoke canisters were fired by the Spanish Guardia Civil at refugees swimming to Ceuta from Morocco in 2015.28 Interdiction efforts are at times undertaken with a view to driving refugees back to their home country. The United States not only interdicted Haitians fleeing the murderous Cedrás dictatorship on the high seas, but forced the asylum-seekers to board its Coast Guard vessels, destroyed their boats, and delivered the refugee claimants directly into the arms of their

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Refugees,” Al Jazeera, Aug. 26, 2016. Parts of the southern border have been reinforced with electricity: M. Dunai, “Hungary Builds New High-tech Border Fence – With Few Migrants in Sight,” Reuters, Mar. 2, 2017. The Hungarian action was moreover not firmly condemned by the European Union. In his letter of invitation to discuss the closure in an EU-wide summit, EU Council President Donald Tusk wrote that “[w]e will close the Western Balkans route, which was the main entry point for migrants with 880,000 entering in 2015 alone and 128,000 in the first two months of this year . . . This will mean an end to the so-called wave-through policy of migrants. It will not solve the crisis but it is a necessary pre-condition for a European consensus”: E. Zalan, “EU Leaders to Declare Balkan Migrant Route Closed,” EU Observer, Mar. 7, 2016. A. Breeden, “Britain and France to Begin Work on Wall Near Calais to Keep Migrants from Channel Tunnel,” New York Times, Sept. 7, 2016. “Curfew Could Trap Angolan Refugees, says UNHCR,” UN Integrated Regional Information Networks, Oct. 30, 2001. As reported by Human Rights Watch, “between the first week of March and April 17 [2016] . . . Turkish border guards shot dead three asylum seekers (one man, one woman, and a 15-year-old boy) and one smuggler; beat to death one smuggler; shot and injured eight asylum seekers, including three children, aged 3, 5, and 9; and severely assaulted six asylum seekers. Syrians living near the border also described the aftermaths of the shootings and beatings, including Turkish border guards firing at them as they tried to recover bodies at the border wall”: Human Rights Watch, “Turkey: Border Guards Kill and Injure Asylum Seekers,” May 10, 2016. Amnesty International, “Egypt: ‘Enough is Enough’, Says Amnesty on Border Killings,” Press Release, Sept. 10, 2009; see also Human Rights Watch, “Sinai Perils: Risks to Migrants, Refugees, and Asylum Seekers in Egypt and Israel,” Nov. 2008, at 34–38. A. Senante, “Spain/Morocco: A Tragedy at the Border,” Feb. 6, 2015. The incident resulted in the recovery of “[f]ourteen corpses, . . . five in Spanish waters and nine in Moroccan waters”: Human Rights Watch, “Spain: A Year On, No Justice for Migrant Deaths,” Feb. 4, 2015.

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persecutors.29 While justified as an effort to counter illegal smuggling,30 the United States continues to engage in interdiction and forcible repatriation of Haitian, Cuban, and other refugees in international waters,31 conducting only a cursory review of protection needs onboard the interdicting ship.32 The Thai, Malaysian, and Indonesian governments similarly used their naval forces to repel Rohingya refugees arriving by boat, many of whom were abandoned without food or water.33 Australia also turns away refugees in international waters before they can reach its territory, though it does not normally return them directly to their country of origin.34 It has, however, sometimes paid the crews of intercepted vessels to pilot their ships back to their place of embarkation.35 Although Australia casts its increasingly 29

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Tang Thanh Trai Le, International Academy of Comparative Law National Report for the United States (1994), at 11. This was not the first attempt by the United States to exercise authority over asylum-seekers in international waters. In 1993, three boats carrying 659 Chinese asylum-seekers were intercepted by the United States in international waters off the coast of Mexico. Based on cursory Immigration and Naturalization Service and UNHCR screening, one person was accepted for protection in the United States, while the rest were handed over to Mexico for return to China: ibid. at 13. “Thousands of people try to enter [the United States] illegally every year by sea, many via highly dangerous and illegal smuggling operations . . . The Coast Guard maintains its humanitarian responsibility to prevent the loss of life at sea, since the majority of migrant vessels are dangerously overloaded, unseaworthy or otherwise unsafe”: US Coast Guard, “Enforcing Immigration Laws,” www.gocoastguard.com/about-the-coast-guard/discoverour-roles-missions/migrant-interdiction, accessed Feb. 5, 2020. Response of US Coast Guard to Freedom of Information Act (FOIA) Request, June 15, 2017, https://migrantsatsea.files.wordpress.com/2017/06/2017–06-15_uscg-foia-rspns_a mio-data-fy-1982_2017–02-01_2017-cgfo-02153.pdf, accessed Feb. 5, 2020. “The Obama Administration has continued high seas interdictions and cursory shipboard screening. Those found to have ‘credible fears’ are brought to Guantánamo where they undergo a refugee status determination without the benefit of legal representation. The few who are recognized as refugees are held at Guantánamo pending third country resettlement; they are not considered for resettlement to the United States”: B. Frelick et al., “The Impact of Externalization of Migration Controls on the Rights of Asylum Seekers and Other Migrants,” Dec. 6, 2016 (Frelick, “Externalization”). “In Search of a Regional Rohingya Solution,” IRIN News, July 26, 2013; Human Rights Watch, “Southeast Asia: End Rohingya Boat Pushbacks,” May 14, 2015. It was reported that over a sixteen-year period, “several thousand irregular migrants, mostly asylum seekers from Afghanistan, Iran, Iraq, Pakistan, and Sri Lanka, have arrived in Australia, usually travelling from Indonesia by boat with the aid of migrant smugglers”: A. Schloenhardt and C. Craig, “Turning Back the Boats: Australia’s Interdiction of Irregular Migrants at Sea,” (2015) 27(4) International Journal of Refugee Law 536 (Schloenhardt and Craig, “Turning Back the Boats”), at 536. For a detailed description of Australia’s turn-back operations, see generally ibid. at 536–558. “Beginning on 22 May, over the course of about nine days, Australian officials escorted the asylum-seekers’ boat to Australian waters, paid the crew 32,000 USD, detained most of the passengers on an Australian ship, transferred all the passengers and crew into two small boats, and directed the crew to bring everyone back to Indonesia. The boat landed in Indonesia on 31 May. Indonesian officials took the asylum-seekers into immigration

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militarized operations as life-saving rescue missions,36 its policies are openly oriented toward the deterrence of those who would seek protection within its territory.37 Interdiction increasingly occurs on a bilateral or multilateral basis.38 Under a series of agreements negotiated with the Gadhafi regime,39 Italy worked with Libya to return boats to that country despite the well-documented human rights violations there;40 Spain has concluded similar agreements with Senegal, Cabo Verde, and Mauritania.41 The United States assists Mexico to intercept refugees traveling through its territory from Central American countries.42 Funding and training were similarly provided by the US to Honduran law enforcement officials, who began intercepting national citizens attempting to cross the border into Guatemala.43 The extent of US involvement has been

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detention, and confined the crew to police custody”: Amnesty International, “By Hook or By Crook: Australia’s Abuse of Asylum-Seekers at Sea,” Oct. 2015, at 14. R. Ryan, “Tony Abbott, Scott Morrison Announce New ‘Regional Deterrence Framework’ to Stop Asylum Seekers,” ABC News, Aug. 23, 2013. Deterrence efforts include a government-sponsored video, translated into twelve languages, of the commander of Operation Sovereign Borders warning asylum-seekers that they “will not make Australia home” and that “the Australian government has introduced the toughest border protection measures ever”: O. Laughland, “Angus Campbell Warns Asylum Seekers not to Travel to Australia by Boat,” Guardian, Apr. 11, 2014. It has also published a digital graphic novel depicting refugees suffering medical problems in offshore detention facilities: O. Laughland, “Australian Government Targets Asylum Seekers with Graphic Campaign,” Guardian, Feb. 11, 2014. Portions of the analysis that follows are drawn from T. Gammeltoft-Hansen and J. Hathaway, “Non-refoulement in a World of Cooperative Deterrence,” (2015) 53(2) Columbia Journal of Transnational Law 235 (Gammeltoft-Hansen and Hathaway, “Cooperative Deterence”), at 251 ff. See generally M. Giuffré, “State Responsibility Beyond Borders: What Legal Basis for Italy’s Push-backs to Libya?” (2012) 24(4) International Journal of Refugee Law 692, at 700–703. Human Rights Watch, “Pushed Back Pushed Around: Italy’s Forced Return of Boat Migrants and Asylum Seekers, Libya’s Mistreatment of Migrants and Asylum Seekers,” Sept. 2009, at 23–26; see also UNHCR, “Press Release: UNHCR Deeply Concerned over Returns from Italy to Libya,” May 7, 2009. N. Klein, “Assessing Australia’s Push Back the Boats Policy under International Law: Legality and Accountability for Maritime Interceptions of Irregular Migrants,” (2014) 15 Melbourne Journal of International Law 414, at 424. “Apprehensions of non-Mexican migrants along the southwestern border fell by 57 percent between October 2014 and April 2015 compared to the same months the previous year, from 162,700 to 70,400. As early as September 2014, when the number of Central Americans appearing at the US border decreased, US Secretary of Homeland Security Jeh Johnson issued a press release showing the statistical drop and saying that the US government is ‘pleased that the Mexican government has itself taken a number of important steps to interdict the flow of illegal migrants from Central America bound for the United States’”: Frelick, “Externalization.” “In June of 2014, Honduran law enforcement units which had received funding and training from the US State Department’s Bureau of International Narcotics and Law Enforcement (INL) ‘launched an operation to intercept children and families attempting

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substantial, including even the deployment of security officials as part of its effort to stem the flow of refugee children from Central American states.44 In defending this initiative, Secretary of Homeland Security Jeh Johnson stressed that the “[US] message is clear to those who try to illegally cross our borders: you will be sent back home.”45 The European Union has been especially active in establishing shared interdiction arrangements, including agreements with key Mediterranean and Eastern European states to combat “irregular” migration by the establishment or intensification of exit controls.46 On a larger scale, the European Union has sought to deter the arrival of refugees by permitting its Frontex agency to disembark persons intercepted on the high seas in third countries.47 Indeed, a NATO mission was tasked with “conduct[ing] reconnaissance, monitoring and surveillance of illegal crossings in the Aegean,” including taking boats intercepted to Turkey without regard to non-refoulement obligations.48 And under its controversial agreement with Turkey, the European

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to cross the border from Honduras into Guatemala’. Three such Honduran units apparently collaborated on two tactical operations, Operation Rescue Angel and Operation Coyote. According to reports, all three units received equipment and special training from US Border Patrol, US Immigration and Customs Enforcement or other US migration control and law enforcement entities”: ibid. “In direct response to the summer 2014 surge in unaccompanied Central Americans arriving at the US border, the US Department of Homeland Security (DHS) launched Operation Coyote, which it said was ‘designed to stem the flow of illegal Central American migration.’ The operation involved the deployment of DHS investigators to Mexico and Central America ‘to share criminal intelligence with foreign partners and build capacity in human smuggling and human trafficking enforcement.’ By the end of May 2015, this effort had resulted in 1,037 criminal arrests in Mexico and the region”: ibid. “Statement by Secretary of Homeland Security Jeh Johnson Before the Senate Committee on Appropriations,” DHS Press Release, July 10, 2014. A. Adepoju et al., “Europe’s Migration Agreements with Migrant Sending Countries in the Global South: A Critical Review,” (2010) 48(3) International Migration 42; D. Lutterbeck, “Policing Migration in the Mediterranean,” (2006) 11(1) Mediterranean Politics 59; I. Gatev, “Border Security in the Eastern Neighbourhood: Where Biopolitics and Geopolitics Meet,” (2008) 13 European Affairs Review 97. See M. den Heijer, “How the Frontex Sea Borders Regulation Avoids the Hot Potatoes,” and S. Keller, “New Rules on Frontex Operations at Sea,” LIBE Special, April 2014 for an extensive critique of the deficiencies of Regulation No. 656/2014, May 15, 2014, intended to implement the standards set by the decision of Hirsi Jamaa v. Italy, (2012) 55 EHRR 21 (ECtHR [GC], Feb. 23, 2012) into Frontex operations. V. Moreno-Lax, “The Interdiction of Asylum Seekers at Sea: Law and (Mal)practice in Europe and Australia,” Kaldor Centre for International Refugee Law Policy Brief 4, May 2017, at 3. Despite the Secretary-General’s insistence that the mission was “not about stopping or pushing back refugee boats” (North Atlantic Treaty Organization, “NATO Defense Ministers Agree on NATO Support to Assist with the Refugee and Migrant Crisis,” Feb. 11, 2016), he later clarified that “[i]n case of rescue at sea of persons coming via Turkey, they will be taken back to Turkey”: J. Stoltenberg, “NATO and Europe’s Refugee and Migrant Crisis,” Feb. 26, 2016. Statements by British and German defense ministers

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Union has similarly promised funding and other political concessions in exchange for Turkey’s cooperation in preventing the onward transit through its territory of persons who might otherwise seek protection in Europe.49 In some cases, the destination country may actually engage in interdiction from within the territory of a cooperating state. Agreements have been signed to transport third-country authorities on European ships so that they can carry out interceptions inside the territorial waters of such states as Libya, Mauritania, and Senegal.50 Immigration officials of the destination country may be deployed to assist authorities in countries of transit, as evidenced by Australia’s network of Airline Immigration Officers (ALOs) in overseas airports.51 In one extreme case, the United Kingdom actually attempted interdiction from within the state of origin, establishing a pre-clearance procedure at Prague Airport under which its immigration officers screened passengers bound for Britain deemed likely to seek refugee protection there. As was made clear in evidence considered by the House of Lords, a significant number of Roma seeking recognition of their refugee status were in fact deterred by this procedure.52 Even those who manage to cross an asylum state’s border may still face summary ejection by officials. After the Andijan uprising in 2005, Kyrgyzstan

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confirm this understanding: E. MacAskill and E. Graham-Harrison, “Nato Launches Naval Patrols to Return Migrants to Turkey,” Guardian, Feb. 11, 2016. “Turkey will take any necessary measures to prevent new sea or land routes for illegal migration opening from Turkey to the EU, and will cooperate with neighbouring states as well as the EU to this effect”: EU–Turkey Statement, Mar. 18, 2016, www.consilium.europa .eu/en/press/press-releases/2016/03/18/eu-turkey-statement/#, accessed Feb. 5, 2020. T. Gammeltoft-Hansen, Access to Asylum: International Refugee Law and the Globalisation of Migration Control (2011) (Gammeltoft-Hansen, Access to Asylum), at 126; D. Guilfoyle, Shipping Interdiction and the Law of the Sea (2009) (Guilfoyle, Shipping Interdiction), at 218; J. Rijpma, “Building Borders: The Regulatory Framework for the Management of the External Border of the European Union”, doctoral dissertation, European University Institute, Florence, 2009. While relevant European Union guidelines make express reference to the importance of respect for the duty of non-refoulement, interdicted persons have in practice often been returned without any assessment of their protection needs: Gammeltoft-Hansen, Access to Asylum, at 126; see also Guilfoyle, Shipping Interdiction, at 218. “DIMIA has increased its Airline Liaison Officer network to seventeen, located at twelve (12) key hub international airports with direct flights to Australia and/or last ports of embarkation for inadmissible passengers to Australia: Bangkok, Denpasar, Hong Kong, Jakarta, Kuala Lumpur, Manila, Port Moresby, Mumbai, Nadi, Seoul, Singapore, and Taipei . . . The presence of ALOs at last ports of embarkation for travel to Australia deters the activities of people smugglers and persons of concern”: Department of Immigration and Multicultural and Indigenous Affairs (Australia), “Submission to the Joint Committee of Public Accounts and Audit Review of Aviation Security in Australia,” www.aph.gov.au, accessed Feb. 5, 2020, at [16], [19]. European Roma Rights Centre v. Immigration Officer at Prague Airport, [2004] UKHL 55 (UK HL, Dec. 9, 2004), at [4], [92].

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summarily returned Uzbek refugees, some of whom were previously recognized as refugees by UNHCR;53 Ukraine followed suit in 2006, refusing to assess the well-documented risk of persecution they might face upon return.54 Ugandan authorities lured more than 1,700 Rwandans, including refugees, into trucks under the guise of receiving food and information about how to pursue asylum appeals; once inside, the refugees were returned to the Rwandan border.55 In 2015, Australian naval forces towed a boat carrying asylumseekers back to Indonesia, despite the fact that the boat was already inside Australian territory near Christmas Island.56 In the summer of 2017, Greek police intercepted asylum-seeking Turks attempting to escape President Erdoğan’s campaign of persecution against critics and opponents. They were turned over to unidentified armed men who forcibly and violently removed them to the Turkish side of the border where the Turkish gendarmerie was waiting for them.57 Some such returns are in response to pressure from the country of origin itself. For instance, Tajikistan has requested the extradition of a number of political activists who sought protection in Russia, Moldova, and Belarus.58 53

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Organization for Security and Co-operation in Europe, “OSCE Chairman Criticizes Kyrgyzstan for Extraditions, Calls on Russian Authorities Not to Deport Refugees to Uzbekistan,” Aug. 10, 2006. “For several years, the Uzbek government has pressured Kyrgyzstan and other countries in the region to force Uzbek refugees and asylum seekers to return to Uzbekistan. In some cases, the other countries have complied with extradition or deportation proceedings. In others . . . refugees are abducted, ‘disappear,’ and reappear in custody in Uzbekistan”: Human Rights Watch, “Uzbekistan: Abducted Refugee on Trial,” Feb. 5, 2009. N. Paton and W. Moscow, “UN Condemns Ukraine’s Return of Asylum Seekers,” Guardian, Feb. 17, 2006. “Uzbek authorities had been pressing the Kiev government for their return, alleging the men were involved in the uprising in Andijan last May in which human rights advocates say hundreds of civilians were killed by Uzbek security forces . . . In a written statement, State Department Deputy Spokesman Adam Ereli said the 10 Uzbeks were returned without passing through the full asylum process under Ukrainian law, including the ability to appeal their status”: “US Condemns Ukraine for Returning Uzbek Asylum-Seekers,” Voice of America, Oct. 31, 2009. “[W]itnesses to the operation said that no effort was made to distinguish among those forced onto the trucks, and that those sent back included individuals who had gained refugee status. The UN High Commissioner for Refugees issued a statement confirming that ‘recognized refugees were among those returned’”: Human Rights Watch, “Uganda/ Rwanda: Halt Forced Returns of Refugees,” July 17, 2010. M. Safi and B. Doherty, “Asylum Seeker Boat Towed Away After Coming within 200m of Christmas Island,” Guardian, Nov. 20, 2015. Stockholm Center for Freedom, “Greece has Adopted Illegal Border Push-Back for Erdoğan Critics,” June 4, 2017. “Tajiks fleeing persecution are wary of seeking protection in Russia and other CIS countries given the precedent of extra-judicial extraditions [and] the close cooperation between Russian and Tajik security services . . . In November 2014, [Tajikistan-born] Maksud Ibragimov – the leader of the Russian-based ‘Youth of Tajikistan for Revival’ organization – was stabbed outside his Moscow home before being arrested by Russian authorities and subsequently

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China has issued a mix of ultimatums and promises to Cambodia, Kazakhstan, and Thailand to force them to repatriate Uighur refugees;59 similar efforts have resulted in the return to China of Tibetans by Nepal.60 China has permitted North Korean officials to enter its territory to repatriate refugees it deems “defectors.”61

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smuggled out of the country and back to Dushanbe in the baggage hold of an aircraft”: Y. Matusevich, “The Quiet Tajik Refugee Crisis,” Diplomat, Aug. 11, 2016. A. Wolman, “Chinese Pressure to Repatriate Asylum Seekers: An International Law Analysis,” (2017) 29(1) International Journal of Refugee Law 84. For the most part, China relied on diplomatic pressure to procure the forced repatriation of Uighur refugees: M. Schiavenza, “Why Thailand Forced Uighurs to Return to China,” Atlantic, July 12, 2015. But at least in the case of the repatriations from Cambodia and Thailand, China also sent government officials and charter planes to forcibly transport the refugees back to its territory: “Uighurs ‘On Way to Jihad’ Returned to China in Hoods,” Reuters, July 11, 2015. Perhaps the most notorious “smoking gun” of Chinese tactics was the approval by China and Cambodia of fourteen investment deals, estimated at $1.2 billion, only two days after the expulsion of twenty Uighur refugees by the latter state: S. Mydans, “After Expelling Uighurs, Cambodia Approves Chinese Investments,” New York Times, Dec. 21, 2009. Concessions offered to other allies included trade deals, training and financial assistance, and diplomatic support: “China to Neighbours: Send Us Your Uighurs,” Al Jazeera, Feb. 16, 2015. Conversely, the decision by Turkey – which shares religious and linguistic ties with the ethnic minority – not to repatriate Uighurs in its territory earned it a rebuke from Beijing: “China Rebukes Turkey for Offer to Shelter Uighur Refugees,” Reuters, Nov. 28, 2014. Human Rights Watch, “Under China’s Shadow: Mistreatment of Tibetans in Nepal,” Apr. 1, 2014, at 35–36. Such efforts are in violation of a decades-old agreement with UNHCR to facilitate the travel of Tibetans through Nepal to India; as communicated in a 2010 US embassy cable published by WikiLeaks, China “rewards [Nepalese forces] by providing financial incentives to officers who hand over Tibetans attempting to exit China.” Another cable stated, “Beijing has asked Kathmandu to step up patrols . . . and make it more difficult for Tibetans to enter Nepal”: J. Krakauer, “Why is Nepal Cracking Down on Tibetan Refugees?” New Yorker, Dec. 28, 2011. These and similar actions led the UN Human Rights Committee to call on Nepal to “guarantee access to its territory to all Tibetans who may have a valid refugee claim and refer them to the Office of the United Nations High Commissioner for Refugees”: Human Rights Committee, Concluding Observations on the Second Periodic Report of Nepal, UN Doc. CCPR/C/NPL/CO/2, Apr. 15, 2014, at [14]. “Since 1986, China has had a treaty arrangement with North Korea by which it agrees to return ‘defectors’. Although for a number of years China informally tolerated the presence of North Koreans, in 1999 it began returning large numbers of them, claiming that they were not refugees but ‘food migrants.’ By 2004, China had removed at least 5,000 North Koreans, and was reported as permitting North Korean security forces periodically to enter China to abduct refugees”: G. Goodwin-Gill and J. McAdam, The Refugee in International Law (2007) (Goodwin-Gill and McAdam, Refugee in International Law), at 231–232. More recently, “abduction teams consisting of North Korean [Ministry of State Security] agents and some Chinese Public Security officials are conducting large-scale operations in the border areas. The abduction teams are known to be monitoring persons of interest while staying at hotels or restaurants in the border areas and receiving information on the movements of defectors by paying bribes to Chinese Public Security agents”: K. Young, “MSS Abduction Units Monitor North Korean Defectors in China,” Daily NK, July 27,

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The ejection of refugees has at times been a matter of formal policy, and truly massive in scope. Following Interior Minister Nduwimana’s declaration in 2009 that newly arriving Rwandan nationals be “rapidly expelled” from the country, Burundian officials forcibly returned refugees to the border without regard to their protection claims.62 When several thousand Tunisian nationals sought protection in Italy in the wake of the Arab Spring, Italian Foreign Minister Franco Frattini reportedly requested the EU’s assistance in forming a blockade of Tunisian ports specifically for the purpose of “mobilis[ing] patrols and refoulement.”63 The result was joint sea and air patrols with France64 and a repatriation agreement with Tunisia.65 In 2015, Niger summarily removed thousands of Nigerian refugees in the wake of an attack on its forces by Boko Haram.66 Later that year Venezuela’s President Maduro declared a state of emergency and returned hundreds of Colombian refugees to their country of origin.67 The following year, Algerian authorities forced hundreds of sub-Saharan asylumseekers onto buses for forcible transport across its southern border.68

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2017; see also D. Hurst, “South Korea Investigating ‘Abduction’ of North Korean Defector and TV Star,” Guardian, July 19, 2017. Human Rights Watch reports that some of the returned were falsely informed that UNHCR had determined they were not refugees: Human Rights Watch, “Burundi: Stop Deporting Rwandan Asylum Seekers,” Dec. 2, 2009. “An official from Burundi’s refugee agency, National Office for the Protection of Refugees and Stateless Persons (ONPRA), told Human Rights Watch that the decision was intended to prevent further influxes of Rwanda’s ‘peasant masses’”: ibid. J. Hooper, “Italy Seeks EU Help to Cope with Tunisian Influx,” Guardian, Feb. 13, 2011. R. Donadio, “France to Help Italy Block Tunisian Migrants,” New York Times, Apr. 8, 2011. “On 5 April 2011, Italy signed a technical agreement with Tunisia with the objective of strengthening border controls and facilitating the return of Tunisians who arrived to Italy. The Italian Government issued temporary residence permits for humanitarian reasons and travel documents to persons who arrived in Italy before 5 April 2011. For persons who arrived at Lampedusa after this date, the repatriation process was initiated. It is, however, not clear whether the asylum claims of all Tunisians and Libyans who arrived at Lampedusa after 5 April 2011 were duly considered and processed by the Italian authorities”: M. IneliCiger, “Has the Temporary Protection Directive Become Obsolete? An Examination of the Directive and its Lack of Implementation in View of the Recent Asylum Crisis in the Mediterranean,” in C. Bauloz et al. eds., Seeking Asylum in the European Union: Selected Protection Issues Raised by the Second Phase of the Common Asylum System 225 (2015), at 238. C. Stein, “UNHCR Concerned as Niger Forces Out Nigerians,” Voice of America, May 7, 2015; K. Sieff, “They Fled Boko Haram and Famine – And Then They Were Forced Back,” Washington Post, June 28, 2017. C. Kraul and M. Mogollon, “Venezuela Pushing Resident Colombian Nationals Back Across the Border,” Los Angeles Times, Sept. 9, 2015. Those who were not deported “were forced to leave after Venezuelan authorities marked their homes with a ‘D’ for ‘demolition’”: G. Gupta, “Distraught Colombians Flee Venezuela as Border Dispute Intensifies,” Reuters, Aug. 26, 2015. Human Rights Watch, “Algeria: Stop Summary Deportations,” Dec. 9, 2016. “[T]he authorities did not screen [those detained] to ascertain their situation or refugee status,

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Ejections are sometimes carried out by non-state actors with the encouragement or toleration of authorities. One of the most notorious cases was the “push-back” order issued by the Thai Ministry of the Interior in 1988. The government rejected offers of support from the United States to build and operate camps to receive Vietnamese refugees, opting instead to deputize fishermen in Khlong Yai to prevent entry of any boats which might be carrying refugees – an order interpreted by fishermen “as a mandate to abuse defenceless boat people. Smugglers, fearing prosecution or vigilante attack, dumped their human cargo into the gulf.”69 When Liberian and Sierra Leonean refugees fled to Guinea in late 2000, President Lansana Conté encouraged citizens to form militia groups70 with a view to forcing refugees to “go home.”71 Malaysia deputized a volunteer corps in 2005 to apprehend undocumented persons, with no effort made to distinguish those with claims to protection from migrants generally,72 while Hungary more recently conscripted over 1,000 “border hunters”73 specifically for the purpose of turning back refugees arriving at the border.

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provide information about their rights, or allow them to contact the United Nations High Commissioner for Refugees or consular representatives of their country of origin”: ibid. A. Helton, “Asylum and Refugee Protection in Thailand,” (1989) 1(1) International Journal of Refugee Law 20 (Helton, “Thailand”), at 27–30. D. Farah, “For Refugees, Hazardous Haven in Guinea,” Washington Post, Nov. 6, 2000, at A-24. “Over 400 refugees arrived in Monrovia on 12 October following a two-day sea voyage. Many complained of being beaten and raped by Guineans”: (2000) 80 JRS Dispatches (Oct. 16, 2000). “In 2005, the government transformed a volunteer self-defense corps, created in the 1960s to guard against Communists, into a strike force deputized to hunt down illegal immigrants. This force, called Rela, now numbers nearly half a million mostly untrained volunteers – more than the total number of Malaysia’s military and police in this nation of 27 million. Its leaders are armed and have the right to enter a home or search a person on the street without a warrant. By an official count, its uniformed volunteers carry out 30 to 40 raids a night”: S. Mydans, “A Growing Source of Fear for Migrants in Malaysia,” New York Times, Dec. 10, 2007. Human Rights Watch reports that, in carrying out their duties, Rela members “have failed to distinguish or deliberately ignored the distinctions between undocumented migrants, and refugees and asylum seekers”: Human Rights Watch, “Malaysia: Disband Abusive Volunteer Corps,” May 9, 2007. “Recruits, who must be between 18 and 55 years old, are given training similar to police and learn other skills such as guarding a border fence, detaining large groups of migrants and tracking their paths . . . Like police officers, border hunters will carry pistols with live ammunition, batons, pepper spray and handcuffs, and will also be equipped with nightvision goggles if needed”: K. Than, “Hungary to Arm New ‘Border Hunters’ after SixMonth Crash Course,” Reuters, Mar. 9, 2017. “There is no lack of interest in joining the new ‘border-hunters’ unit. But police officers admit privately that the name is part of the problem, as it attracts the wrong kind of applicant. Only 1,000 of the 2,700 people who applied from last August to January this year were accepted. Nearly 400 failed the psychology test”: N. Thorpe, “Hungary Hits Snags with Squad to Stop Migrants,” BBC, Feb. 15, 2017.

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Beyond rejection at the border or being physically forced back to their country of origin, refugees may be subject to removal when refused access to a procedure to verify their refugee status. For example, Japan declined to consider the refugee claims of Chinese pro-democracy dissidents in the immediate post-Tiananmen era, and forced many of them back to China.74 Malaysian police have waited outside the local UNHCR office to arrest and deport Indonesians waiting to make appointments to have their refugee status claims processed.75 Spain has summarily classified refugees attempting to enter Ceuta and Melilla as “illegal immigrants” subject to removal, giving them no opportunity to apply for asylum.76 Saudi Arabia has returned thousands of Somalis without affording them an opportunity to claim refugee status and denies UNHCR access to persons detained.77 Israel delays the processing of protection claims by Eritrean and Sudanese nationals and recognizes nearly none of them as refugees, hoping effectively to discourage claimants sufficiently that they will leave the country.78 Refugees may also face removal because of practical weaknesses in the operation of asylum systems. The system itself may simply be unsound, as is the case in the United States where border guards play an often decisive role in the registration and adjudication of Central American asylum claims,79 or in 74

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Asia Watch, “Japan: Harassment of Chinese Dissidents” (1990), at 1. “In a number of cases, the authorities refused to renew visas which were about to expire and individual Chinese students were told to return home, including some who had played a prominent part in the pro-democracy movement and who were clearly at risk of serious human rights violations in China”: Amnesty International, “Japan: Inadequate Protection for Refugees and Asylum Seekers” (1993), at 8. “The UN High Commissioner for Refugees (UNHCR) has designated all Acehnese in Malaysia as ‘persons of concern’ and is issuing protection letters for those who are able to register at their Kuala Lumpur office. However, in August 2003 Malaysian police arrested almost 250 asylum seekers, many of them Acehnese, outside the UNHCR office in Kuala Lumpur. Fearing arrest and deportation, Acehnese refugees have since been reluctant to approach the UN agency to make an asylum claim or acquire a protection letter”: Human Rights Watch, “Malaysia: Stop Deportations of Acehnese Refugees,” Jan. 1, 2004. “Foreigners detected while ‘illegally crossing’ the Spanish–Moroccan border . . . may be automatically rejected to prevent their illegal entry into Spain, without going through the legal procedures, thus not being properly identified, not having the right to get legal advice or apply for asylum . . . [I]n practice it is impossible to respect human rights with these so called ‘fast-track repatriations’ (devoluciones en caliente). By not identifying the people crossing the border and proceeding to their rejection and return to Morocco, Spain is failing to fulfill its duties, as these people might be potential asylum applicants, victims of human trafficking or minors, whose lives might be at risk if returned to Morocco”: Issues Without Borders, “Summary of the National Legislation on Refugees,” Sept. 21, 2015; see also Amnesty International, “Spain: Two-pronged Assault Targets Rights and Freedoms of Spanish Citizens, Migrants and Refugees,” Mar. 26, 2015. Human Rights Watch, “Saudi Arabia: 12,000 Somalis Expelled,” Feb. 18, 2014. I. Lior, “Nearly 15,000 Asylum Requests Still Pending – Israel yet to Approve Single One in 2016,” Haaretz, July 21, 2016. C. Long, “The Other Refugee Crisis, from Central America to the US,” Sept. 21, 2015.

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South Africa where officers sometimes demand bribes in exchange for swifter service or documentation.80 The risk may also follow from failure of even a carefully designed procedure to take notice of the most accurate human rights data. In January 2002, for example, the UK government summarily deported members of opposition parties to Zimbabwe, relying on dated Home Office risk assessments rather than on updated Foreign Office warnings of a serious deterioration of conditions there.81 An especially serious operational risk can occur when refugees are forced to undergo extraterritorial processing in countries without the experience or resources reliably to assess refugee status and consequent duties of protection. As practiced by the United States with Jamaica and the Turks and Caicos Islands during the 1990s82 and more recently by Australia with Nauru and Papua New Guinea,83 such schemes entail the transfer of refugees to a third state that assumes primary or shared control of the status determination procedure. Refugees may be forcibly returned even after their status is formally recognized. An especially pernicious tactic is the promotion of “voluntary repatriation” in circumstances that amount to a thinly disguised withdrawal of protection from refugees. In August 2002, for example, Rwanda not only allowed members of a Congolese rebel group backed by it to meet with refugees from the Democratic Republic of Congo in order to promote their return home, but advised the refugees that both camp services and the offer of 80

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V. Talane, “Corrupt Officials Make Life Tough for Refugees,” Corruption Watch, June 27, 2014. “Almost a third of asylum seekers and refugees have to pay bribes for correct documentation violating the Refugees Act that stipulates that they are not required to pay any fees for documentation . . . Corruption is most pervasive at the office in Marabastad, Pretoria with over two-thirds of applicants experiencing graft. If you cannot pay, rejection is almost guaranteed. Over half of respondents at Marabastad experienced corruption while standing in queues and a third were denied entry to the office because they could not pay bribes”: G. Parker, “Corruption Hurts Refugees in South Africa,” Voice of America, July 28, 2015. “They were waiting for him at the airport, just as he feared. Gerald Mukwetiwa was still recovering from the eight-hour flight to Harare when British immigration officers handed him over to their Zimbabwean counterparts. But the airport officials were not what they seemed. They were members of Zimbabwe’s feared Central Intelligence Organisation . . . [A]n Observer investigation has discovered that scores of members of opposition parties in Zimbabwe face being sent back to President Mugabe’s regime with little regard for their safety”: P. Harris and M. Bright, “Crisis in Zimbabwe: Special Investigation: They Flee Here for Safety but are Sent Back to Face Death,” Observer (London), Jan. 13, 2002, at 8. A. Francis, “Bringing Protection Home: Healing the Schism between International Obligations and National Safeguards Created by Extraterritorial Processing,” (2008) 20(2) International Journal of Refugee Law 273 (Francis, “Bringing Protection Home”), at 285–286. A. Liguori, “Some Observations on the Legal Responsibility of States and International Organizations in the Extraterritorial Processing of Asylum Claims,” (2015) 25 Italian Yearbook of International Law 135 (Liguori, “Extraterritorial Processing”), at 153.

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transportation home would soon be withdrawn from those who did not choose to repatriate.84 Roma refugees from Kosovo similarly felt compelled to leave Macedonia after being denied basic sanitary facilities and services there.85 Refugees International determined that Bangladesh, working in concert with UNHCR, was promoting the repatriation of Rohingya refugees from Bangladesh to Burma by “creat[ing] an environment in which protection for the Rohingya is virtually untenable . . . Methods of coercion . . . include a reduction in certain basic entitlements, including food, withholding of medical services or pharmaceuticals, forced relocation within camps to poorer housing, beatings, and, most commonly, threats of and actual jail sentences.”86 In seeking to persuade Afghan refugees to return to their country, Pakistani officials restricted the renewal of identification documents, extorted those whose documents had expired,87 and closed Afghan refugee schools.88 In 2011, Egyptian guards at the al-Shalal prison “beat 118 men, including 40 who already have refugee status, to force them to sign papers for their ‘voluntary’ return to Eritrea.”89 At times, the pressure to “choose” to go home may be less blunt, but nonetheless real. UNHCR has, for example, offered a $400 incentive to persuade Afghan refugees to go home from Pakistan.90 Australia offered Rohingya, Somali, and Sudanese refugees detained at Manus Island the option to return home in exchange for a payment of up to A$10,000 – accompanied by a warning from Papua New

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US Committee for Refugees, “The Forced Repatriation of Congolese Refugees Living in Rwanda,” Nov. 13, 2002. See also “Opening Statement by Mr. Ruud Lubbers, United Nations High Commissioner for Refugees, at the Fifty-Third Session of the Executive Committee of the High Commissioner’s Programme,” Sept. 30, 2002, at 4: “In Rwanda I remain concerned about the imposed return of Congolese refugees, and I have taken this up with the Rwandan government.” (2003) 133 JRS Dispatches (May 30, 2003). Refugees International, “Lack of Protection Plagues Burma’s Rohingya Refugees in Bangladesh,” May 30, 2003. Human Rights Watch, “Pakistan Coercion, UN Complicity: The Mass Forced Return of Afghan Refugees,” Feb. 13, 2017, at 3–4. “Before 2016, Pakistan renewed Afghans’ refugee status for between 18 months and three years at a time. By extending refugee status for only 12 months or less after that time, and by refusing to re-issue refugees’ expired cards after December 2015, Pakistani authorities increased the pressure to return . . . Almost every Afghan interviewed for this report described how beginning in July 2016, Pakistani police repeatedly stopped and extorted from them between 100 and 3,000 rupees [US$1–US$30] each time. In many cases the police used the fact that refugees’ Proof of Registration (PoR) cards had expired at the end of December 2015 as an excuse to demand money and threatened to confiscate their cards or deport them if they didn’t pay”: ibid. at 4, 15. Ibid. at 24–25. Human Rights Watch, “Egypt: Don’t Deport Eritreans,” Nov. 15, 2011. “For many, the June 2016 decision of UNHCR – under significant pressure from Pakistan seeking increased repatriation rates – to double its cash grant to returnees from US$200 to US $400 per person was a critical factor in persuading them to escape Pakistan’s abuses”: ibid. at 4.

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Guinea that “police would be called in to force ‘the movement of those who refuse to cooperate.’”91 The most sophisticated means of denying protection, however, is to avoid the arrival of refugees altogether by the adoption of relatively invisible nonentrée policies.92 In essence, the goal of these mechanisms is to implement legal norms which have the effect of preventing refugees from even reaching the point of being able to present their case for protection to asylum state authorities. The classic mechanism of non-entrée is to impose a visa requirement on the nationals of genuine refugee-producing countries, enforced by sanctions against any carrier that agrees to transport a person without a visa. Nationals of countries likely to produce refugees have long been required to obtain a visa before boarding a plane or otherwise coming to Canada.93 Because a visa will not be issued for the purpose of seeking refugee protection, only those who lie about their intentions or secure forged documentation are able successfully to satisfy the inquiries of the transportation company employees who effectively administer Canadian law abroad.94 In 2015, Ecuador reversed its policy of not requiring visas from Cuban nationals “in order to discourage the flow of people seeking to reach the United States.”95 Lebanon similarly sought to deter the arrival of Syrians by imposing a visa requirement, albeit only after it became host to more than 1

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B. Doherty, “‘It’s Simply Coercion’: Manus Island, Immigration Policy and the Men with no Future,” Guardian, Sept. 28, 2016. Incredibly, Australia repeated the offer to Rohingya refugees in September 2017 in the midst of a widely reported series of attacks on the Rohingya by Burmese authorities: O. Holmes and B. Doherty, “Australia Offers to Pay Rohingya Refugees to Return to Myanmar,” Guardian, Sept. 18, 2017. Non-entrée is a term coined to describe the array of legalized policies adopted by states to stymie access by refugees to their territories. See J. Hathaway, “The Emerging Politics of Non-entrée,” (1992) 91 Refugees 40 (Hathaway, “Non-entrée”). “Imposing visa requirements on countries that generate refugees often results in substantial drops in asylum claims. In July 2009, for example, the Canadian government imposed visa requirements on Mexico and the Czech Republic, and was candid in its position that imposing such requirements would help stem refugee flows from these source countries. This move was widely criticized as an attempt to create ‘obstacles in the path of people who genuinely have a fear of persecution in their country of origin.’ Canada’s imposition of visa requirements on the Czech Republic was also criticized as an attempt to dissuade Roma peoples of Czech nationality from seeking asylum in Canada, despite evidence of antiRoma persecution in the Czech Republic. These 2009 visa requirements triggered a sharp decline in the number of asylum claims made from Mexico and the Czech Republic, so much so that Canada dropped in UNHCR’s ranking of top refugee receiving countries”: E. Arbel and A. Brenner, “Bordering on Failure: Canada–US Border Policy and the Politics of Refugee Exclusion,” Nov. 2013, at 40–41. See generally E. Feller, “Carrier Sanctions and International Law,” (1989) 1(1) International Journal of Refugee Law 48 (Feller, “Sanctions”); and Danish Refugee Council and Danish Center of Human Rights, “The Effect of Carrier Sanctions on the Asylum System” (1991). J. Hamre, “Cubans Protest New Ecuador Visa Regulation,” Reuters, Nov. 27, 2015.

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million Syrian refugees.96 The European Union has adopted a sweeping visa control policy, with member states required to impose visas on the nationals of over 100 countries – including, for example, such refugee-producing countries as Afghanistan, Iraq, Somalia, Sudan, and Syria.97 A second mechanism of non-entrée is the deportation chain that can be set in motion by interstate arrangements to share responsibility for refugee protection. The “first country of arrival” principle purports to collectivize responsibility to protect refugees among a select group of participating states. The most important harmonization regime thus far established – that predicated on the Dublin Regulation in Europe98 – generally assigns protective responsibility to the first partner state in which a given refugee arrives,99 as does the agreement between the United States and Canada.100 The risk of refoulement arises because these agreements assume, rather than require an investigation of, the partner state’s ability and willingness to protect refugees.101 While the Court of Justice of the European Union has recently insisted that refugees may not be returned to a foreseeable risk of refoulement,102 its foundational jurisprudence requires evidence of a “systemic deficiency”103 to forestall removal – clearly leaving open the risk of

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According to a spokesman for the General Security Directorate, the new rules were intended as “enhanced measures to exert ‘control over Syrian refugee activities in Lebanon’”: H. Haylor and S. Haidamous, “Syrian Refugees become Less Welcome in Lebanon, as New Entry Rules take Effect,” Washington Post, Jan. 5, 2015. EU Reg. 2018/1806 of the European Parliament and of the Council listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement (Nov. 14, 2018), at Annex I. European Council Reg. EC 604/2013, June 26, 2013 (Dublin Regulation (recast)). This is subject to several criteria, such as prior authorization to travel or issues of family unity, provided for in the Regulation: Dublin Regulation (recast), at Arts. 7–15. Agreement between the Government of Canada and the Government of the United States for Cooperation in the Examination of Refugee Status Claims from Nationals of Third Countries, adopted Dec. 5, 2002, entered into force Dec. 29, 2004, US State Dept. No. 0535, 2004 WL 3269854. The Inter-American Commission on Human Rights found Canada to be in breach of the duty of non-refoulement for having enacted a “direct back” process requiring asylum applicants entering Canada via the United States to go back to the United States to await refugee hearings in Canada. The Commission found that the process impermissibly presumed safety in the United States rather than being based on an individualized risk assessment: John Doe et al. v. Canada, Case 712.586, Report 78/11 (IAComHR, July 21, 2011). CK et al. v. Republic of Slovenia, Dec. No. C-578/16 PPU (CJEU, Feb. 16, 2017), at [44]. NS v. Secretary of State for the Home Department, Dec. No. C-411/10 (CJEU, Dec. 21, 2011). In this decision, the Court observed – seemingly contrary to its own position taken in CK et al. v. Republic of Slovenia, Dec. No. C-578/16 PPU (CJEU, Feb. 16, 2017), at [44] – that “[t]he . . . argument that . . . only the existence of systemic flaws in the Member State responsible is capable of affecting the obligation to transfer an asylum seeker to that Member State is unfounded”: ibid. at [91]. These cases are discussed in more detail at note 314.

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individuated refoulement.104 Worse still, the Canadian Federal Court of Appeal refused to invalidate the partnership agreement with the United States despite the fact that multiple breaches of international law, including several posing the risk of refoulement, had been identified at the trial court level.105 The “first country of arrival” principle has sometimes been informally invoked even in the less developed world. For example, persons seeking asylum in Kenya were told by UNHCR to go back to Uganda or Tanzania, through which some had already passed.106 Ugandan officials, in turn, refused to consider the claims of Rwandan refugees previously present in Tanzania, even as Tanzania was threatening the refugees with forced repatriation to Rwanda.107 South Africa ordered its border officials to turn back or detain refugees who traveled to that country via safe neighboring countries. Though

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As the UK Supreme Court pointedly observed, “[t]he presumption [of partner state respect for refugee rights] should not operate to stifle the presentation and consideration of evidence . . . [regarding] the consequences of enforced return. Nor should it be required that, in order to rebut it, it must be shown, as a first and indispensable requirement, that there is a systemic deficiency in the procedure and reception conditions provided for the asylum seeker”: R (EM, Eritrea) v. Secretary of State for the Home Department, [2014] UKSC 12 (UK SC, Feb. 19, 2014), at [41]. The Queen v. Canadian Council for Refugees, [2008] FCA 229 (Can. FCA, June 27, 2008), reversing Canadian Council for Refugees et al. v. The Queen, [2007] FC 1262 (Can. FC, Nov. 29, 2007). The Federal Court of Appeal avoided substantive engagement with the allegations, basing its decision on the language of the enabling statute that required only that the Canadian government have considered the risk of refoulement before designating a state as a partner state, not that it have satisfied itself that in fact there was not a risk of refoulement. The US “asylum” system unlawfully circumscribes the beneficiary class by inter alia imposing a one-year cutoff for protection, barring recognition of those deemed to have failed to avail themselves of a protection opportunity before arriving in the US, requiring evidence of direct intent to persecute, and setting a sweeping category of excluded persons (beyond what Art. 1(F) of the Convention authorizes). The US “withholding” system does not respect the “well-founded fear” test for refugee status, but requires instead evidence of a “clear probability” of persecution. In the result, even the combination of the two systems does not comply with US responsibilities to grant all persons who are in fact Convention refugees protection against refoulement (much less the full range of rights set by Arts. 2–34 of the Convention). See generally D. Anker, The Law of Asylum in the United States (2018). (1999) 53 JRS Dispatches (July 16, 1999). “Ethnic Rwandese asylum-seekers entering [Uganda] from Tanzania are no longer recognised by this government, Minister for Disaster Preparedness Brg. Moses Ali has said. ‘On advice of UNHCR, the government stopped recognising Rwandese asylum-seekers from Tanzania since they were already accessing international protection,’ Ali said”: “Government No Longer Recognises Rwanda Asylum-Seekers,” Monitor (Kampala), Oct. 7, 2002.

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that policy was ordered withdrawn when challenged in the High Court,108 it has continued to be applied in practice.109 A related concept is the notion of a “safe third country,” pursuant to which a person claiming refugee status may be sent to some other country deemed able and willing to protect refugees. The proliferation of various types of readmission arrangements, whether formal or ad hoc,110 has facilitated the (often summary) return of third-country nationals to the states through which they have transited, many times without regard to rights obligations or track records in the receiving countries.111 The European Union, for example, felt it appropriate to enter into an arrangement to force refugees back to Turkey – a country that has no legal obligation to protect modern refugees, and which itself has agreements to send refugees back to such countries as Syria, Pakistan, and Nigeria.112 Italy brokered readmission with several North African states in 108

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“Department of Home Affairs Backs Down on Asylum Policy,” Business Day, May 10, 2001. See e.g. Katambayi and Lawyers for Human Rights v. Minister of Home Affairs et al., Dec. No. 02/5312 (SA HC, Witwatersrand Local Division, Mar. 24, 2002), in which the court intervened to stop the removal of a refugee claimant in transit at Johannesburg Airport, ordering the government “to allow [the applicant] to apply for asylum in South Africa.” “In the following years, the Department has made repeated efforts to introduce the concepts, often referring to them as principles of international law, and, in practice, officials have used the concepts as a means to deny asylum seekers physical access at border posts and [Refugee Reception Centres], as well as a means to reject asylum seekers’ claims to refugee status in status determination hearings”: C. Johnson and S. Carciotto, “The State of the Asylum System in South Africa”, in M. O’Sullivan and D. Stevens eds., States, the Law and Access to Refugee Protection: Fortresses and Fairness 167 (2017), at 176–177. More than 300 bilateral agreements linked to readmission have been concluded by European nations alone: J.-P. Cassarino, “A Reappraisal of the EU’s Expanding Readmission System,” (2014) 49(4) The International Spectator 130. Not all such agreements are formalized or instituted at a state level; instead, readmission policies are often given effect through police cooperation agreements, administrative arrangements, partnership agreements, and exchanges of letters and memoranda of understanding. As Mariagiulia Giuffré notes, these latter instruments “do not generally contain the same safeguards of readmission agreements, and are also not subjected to public scrutiny and monitoring”: M. Giuffré, “Readmission Agreements and Refugee Rights: From a Critique to a Proposal,” (2013) 32(3) Refugee Survey Quarterly 79 (Giuffré, “Readmission Agreements”), at 92. Such pacts also risk the direct return of refugees to their countries of origin. See e.g. “UN Envoy Says Russia–North Korea Deportation Pact puts Refugees at Risk,” Reuters, Nov. 26, 2015; J. Ryall, “After 20 Years On Run in Russia, North Korean Defector Facing Repatriation and ‘Execution,’” Telegraph, Feb. 7, 2017. M. Rais, “European Union Readmission Agreements,” (Jan. 2016) Forced Migration Review. Further countries for which Turkey has sought readmission agreements reportedly include Afghanistan, Algeria, Bangladesh, Burma, Cameroon, Eritrea, Ghana, Iran, Iraq, Morocco, the Republic of Congo, Somalia, Sudan, and Tunisia: E. Kart, “Turkey Seeks Readmission Deals with Iraq, Iran,” Hürriyet Daily News, Apr. 12, 2016. Interestingly, to qualify as a “safe third country” under EU law there must be a determination that the destination country is prepared to consider the applicant’s refugee claim, and will not expose the claimant to persecution, (generalized) risk of torture or related ill-

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the wake of the Arab Spring.113 Australia has been especially aggressive in entering into such arrangements with neighboring countries.114 Those arriving by boat are relocated to Nauru and Papua New Guinea for external processing of claims,115 forcing refugees already under Australian jurisdiction to accept the increased risk of refoulement that arises from extreme deficiencies in these partner states’ asylum procedures.116 Notably, the Australian variant of the “safe third country” rule, in contrast to that adopted by the European Union, requires no more than a bare bones assessment of the actual protection available in the destination country;117 nor is the destination country limited

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treatment, or refoulement – a standard that Turkey would seem unable to meet: Council Directive on common procedures for granting and withdrawing international protection (recast), Doc. 2013/32/EU, (June 26, 2013) (EU Procedures Directive (recast)), at Art. 38(1). Thousands of Tunisian and Egyptian nationals were hastily repatriated in 2011 pursuant to readmission agreements with Italy: Giuffré, “Readmission Agreements,” at 90. See also Y. Maccanico, “The EU’s Self-Interested Response to Unrest in North Africa: The Meaning of Treaties and Readmission Agreements between Italy and North African States,” Statewatch Analysis, Dec. 2011. Such arrangements are often hastily reached and lack adequate safeguards. Agreements with the governments of Nauru and Papua New Guinea were criticized for the rushed fashion in which they were formed, which left little time for proper consideration or public comment, and for the inability of Australia to ensure the obligations were met under the 1951 Refugee Convention as well as other human rights treaties to which the receiving states were not party: A. Warbrooke, “Australia’s ‘Pacific Solution’: Issues for the Pacific Islands,” (2014) 1(2) Asia and the Pacific Policy Studies 337, at 338, 339–340. The Australia–Malaysia agreement was also criticized and ultimately rejected for its vague and non-binding nature, the inability of affected individuals to submit complaints to the monitoring bodies for treaties such as the International Covenant on Civil and Political Rights (to which Australia, but not Malaysia, was party), and the lack of means of enforcing the parties’ obligations under the arrangement: T. Wood and J. McAdam, “Australian Asylum Policy All at Sea: An Analysis of Plaintiff M70/2011 v. Minister for Immigration and Citizenship and the Australia–Malaysia Arrangement,” (2012) 61(1) International and Comparative Law Quarterly 274 (Wood and McAdam, “Australia– Malaysia Arrangement”), at 291–293. “Australia experimented with extraterritorial processing during two time periods, from 2001 to 2008 and again from 2012 onward, by outsourcing to Nauru and Papua New Guinea the examination of asylum claims of individuals, intercepting them before they reached Australia or sending them to offshore centres after initial identity and health screening in Australia . . . In most public interviews, Australian Government representatives denied any responsibility, affirming that ‘[the] regional processing centres are a matter for the Nauru and Papua New Guinea governments as these centres are located in their sovereign territory’, and arguing that Australia ‘does not have the “very high level” of effective control necessary to establish its jurisdiction over asylum seekers and refugees offshore’”: Liguori, “Extraterritorial Processing,” at 153. See e.g. Committee Against Torture, “Concluding Observations on the fourth and fifth periodic reports of Australia,” UN Doc. CAT/C/AUS/4–5, Nov. 26, 2014, at [17]. Australia sends intercepted refugees to “regional processing countries” pursuant to Section 198AB(1) of the Migration Act, which provides the authority to designate particular countries as such if “the Minister thinks that it is in the national interest” to do so.

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to a state through which the applicant passed en route to Australia. It has been suggested that this inattention to risk is intentional, in that the Australian government “relied on Malaysia being perceived as an inhospitable host country for asylum seekers . . . ‘to make sure that [it] sent the maximum message of deterrence.’”118 The United States has recently emulated the Australian model, claiming the right to force refugee claimants to have their claims adjudicated in any of El Salvador, Guatemala, or Honduras, even if they have never passed through the designated country.119 A third variant of non-entrée is the designation of safe countries of origin, claimants from which are entitled to less than the usual consideration for refugee status. Canada’s “designated country of origin” – struck down by the Federal Court in 2016120 – gave truncated procedural rights to the nationals of some forty-two “designated countries of origin,” including all but one EU member state as well as the United States and Mexico.121 Other countries presume safety but with specific carve-outs; for example, the United Kingdom designates Gambia, Ghana, Kenya, Liberia, Malawi, Mali, Nigeria, and Sierra Leone as “safe” for men, but not for women.122 The safe country of origin principle has been codified in European Union law, albeit with an explicit safeguard

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In considering this interest, the Minister need only be satisfied that the country will not violate the duty of non-refoulement and that the applicant will be permitted the opportunity to prove his or her refugee status: Migration Act 1958, s. 198AB(1). As interpreted by the High Court, the designation of a country is “largely a political question,” the resolution of which may be determined by reference to assurances provided by the receiving government and which do not require further evaluation as to whether such assurances would be fulfilled: see Plaintiff S156/2013 v. Minister for Immigration and Border Protection, [2014] HCA 22 (Aus. HC, June 18, 2014), at [40], [46]. For a historical account, see also Francis, “Bringing Protection Home,” at 286–290. Wood and McAdam, “Australia–Malaysia Arrangement,” at 274. M. Hackman and J. Montes, “Asylum Seekers at US Southern Border Can Now Be Sent to Guatemala Instead,” Wall Street Journal, Nov. 19, 2019. YZ v. Canada, [2016] 1 FCR 575, 2015 FC 892 (Can. FC, July 23, 2015). See text at note 352. Immigration and Refugee Protection Act, SC 2001, s. 109.1(2)(a); see www.canada.ca/en/ immigration-refugees-citizenship/services/refugees/claim-protection-inside-canada/ apply/designated-countries-policy.html, accessed Feb. 5, 2020, for the historical list of “designated countries of origin.” As originally conceived, the designation of a country as a DCO entailed “a shortened timeframe for submitting evidence; no right to appeal a negative decision, and no right to remain in Canada while the Federal Court processed a request for judicial review of an unreasonable/unjust IRB decision; a faster timeline for a removal order after a negative decision; and no access to a Pre-Removal Risk Assessment (PRRA) for the first 36 months after a negative decision”: C. Costello, “Safe Country? Says Who?” (2016) 28(4) International Journal of Refugee Law 601 (Costello, “Safe Country?”), at 618. Refugee Council, “Safe Country of Origin: United Kingdom,” Asylum Information Database, available at www.asylumineurope.org/reports/country/united-kingdom/asy lum-procedure/safe-country-concepts/safe-country-origin#footnote3_8kcrett, accessed Feb. 5, 2020. The UK previously designated Jamaica as “safe” except for lesbian or gay persons; this provision was struck down after a successful judicial challenge: ibid.

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provision:123 asylum states are entitled to assume that all nationals of listed countries are not refugees, though applicants must be allowed to attempt to rebut the presumption that their claims are unfounded in the context of an accelerated procedure.124 But the safe country of origin rule applies as among European Union states in a significantly more aggressive way, since European Union law explicitly disqualifies all citizens of member states from recognition as refugees.125 Thus, for example, at-risk members of the Roma community in EU states have no effective means of securing refugee status within Europe.126 Indeed, even those fleeing most states neighboring the EU – including for example Belarus and Russia – may be denied access to EU state asylum systems on the basis of what has come to be known as the “super safe third country” system.127 123

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A high-profile decision by Sweden in 2001 to refuse protection to a US citizen on the grounds that the US was a “safe country” may have accounted for some of the pressure to constrain the applicability of the principle. The applicant was a justice of the peace who had campaigned to make US law enforcement officials more accountable, leading to vicious reprisals which authorities were apparently powerless either to prevent or redress. The Swedish decision that the claim was “manifestly unfounded” because the United States is “an internationally recognized democracy” was criticized by Members of the European Parliament, who observed “that his case raises serious questions about the EU’s proposed common asylum policy”: J. Henley, “Swedes Face Call for Asylum U-Turn,” Guardian, June 21, 2001, at 14. EU Procedures Directive (recast), at Art. 37. “‘Refugee’ means a third-country national or a stateless person who fulfils the requirements of Article 2(d) of Directive 2011/95/EU [emphasis added]”: EU Procedures Directive (recast), at Art. 2(g). Moreover, under the Protocol on Asylum for Nationals of Member States of the European Union, annexed to the Treaty establishing the European Community, OJ 1997 C340/1, at 103 (Nov. 10, 1997), it is agreed that “Member States shall be regarded as constituting safe countries of origin in respect of each other for all legal and practical purposes in relation to asylum matters.” It is further agreed that asylum applications are only receivable from a European national where the European Council is engaged in action against the country of origin, where the country of origin has derogated from the European Convention on Human Rights, or with the exceptional consent of the destination country – though the European Council must be informed of such a decision, and the claim must in any event be treated as “manifestly unfounded.” See discussion of this discriminatory denial of protection in Chapter 3.4 at note 566 ff. Nor is it an answer that free movement within the Union permits would-be refugees to seek protection elsewhere. As Stern notes, “[t]o regard the right of free movement of Union citizens and their families as an acceptable alternative to protection is deeply problematic on at least two counts. One is that the right to freedom of movement is in practice not accessible or correctly applied to all EU citizens, as illustrated by the muchcriticised French expulsions in 2010 of Romanian and Bulgarian citizens of Roma origin. In addition . . . the right of residence for longer than 3 months is reserved for certain categories of migrants fulfilling certain conditions and thus not applicable to everyone without exception. The right to seek asylum as understood in international law, on the other hand, is not limited to a person’s occupation or social status”: R. Stern, “At a Crossroad? Reflections on the Right to Asylum for European Union Citizens,” (2014) 33(2) Refugee Survey Quarterly 54, at 72–73. EU Procedures Directive (recast), at Art. 39(2) (requiring only that a “safe state” have ratified relevant refugee and human rights instruments and “ha[ve] in place an asylum

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The determination to rely on non-entrée policies has reached new heights in recent years, with some states enacting formal excision policies that deem parts of their own territory to be “outside” their jurisdiction, hoping thereby to avoid protection responsibilities to persons present therein. A particularly insidious mechanism of non-entrée is the designation by some states of part of their airports, coastlines, or borders as a so-called “transit zone,” in which neither domestic nor international law is said to apply. Hungary, for example, has summarily expelled or turned away persons in transit areas seeking recognition of their refugee status without any examination of their need for protection.128 President Putin adopted a similar position when confronted with the presence of whistle-blower Edward Snowden in the “transit zone” of Moscow’s Sheremetyevo Airport.129 Even more creatively, the Australian government “excised” more than 3,500 of its islands from Australia’s selfdeclared “migration zone” in 2001, declaring that it had no protection obligations to refugees arriving in an excised part of Australian territory.130 The excision policy has since been expanded to exclude the entire mainland of Australia, with the result that refugees arriving by boat are routinely removed from areas of Australian jurisdiction to overseas detention facilities.131

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procedure prescribed by law”). See generally C. Costello, The Human Rights of Refugees and Migrants in European Law (2016) (Costello, Human Rights of Refugees), at 254. M. Robinson and G. Szakacs, “Hungary’s ‘Transit’ Zones Will Send Refugees on a UTurn,” Reuters, Sept. 9, 2015. According to one report on Hungarian practices, “[t]he official government position, as communicated in the press, is that asylum seekers admitted to the transit zone are on ‘no man’s land’, and that persons who were admitted and later ‘pushed back’ in the direction of Serbia have never really entered the territory of Hungary. Consequently, such ‘push backs’ do not qualify as acts of forced return . . . [But] [t]he transit zone and the fence are on Hungarian territory and even those queuing in front of the transit zone’s door are standing on Hungarian soil – as also evidenced by border stones clearly indicating the exact border between the two states”: Hungarian Helsinki Committee, “Border Procedure (Border and Transit Zones): Hungary,” Asylum Information Database, 2017. A. Arutunyan, K. Hjelmgaard, and Z. Coleman, “Putin Says Snowden is Not Technically in Russia,” USA Today, June 25, 2013. Migration Act 1958, as amended, ss. 5(1) and 7. “Any person without a valid visa (an ‘unlawful non-citizen’), who first reached Australian territory at ‘an excised offshore place’ by sea was classified as an ‘offshore entry person.’ The key consequence of the Act was that ‘offshore entry persons’ were prevented from applying for a visa under Australia’s existing application process. ‘Offshore entry persons’ were also to be barred from access to existing independent administrative and judicial review of migration decisions. Crucially, ‘offshore entry persons’ could be transferred to third countries for processing and they were precluded from initiating legal proceedings against the government challenging their designation as ‘unlawful non-citizens’, their potential transfer offshore for processing and the lawfulness of detention”: A. Vogl, “Over the Borderline: A Critical Inquiry into the Geography of Territorial Excision and the Securitisation of the Australian Border,” (2015) 38(1) University of New South Wales Law Journal 114, at 124. Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Act 2013. In truth, provisions purporting to exclude territory from Australia’s migration zone are

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In sum, refugees face a broad array of practices and policies that may prevent them from entering and remaining in an asylum state. Some efforts are direct physical interventions that deny refugees access to a state’s territory altogether, including complete closure of borders, the erection of barriers to entry, and interdiction efforts. Alternatively the risk may arise after a refugee has already arrived, including summary ejection, refusal of access to an assessment procedure, practical weaknesses in the operation of asylum systems, extraterritorial processing, and “voluntary” repatriation. A third set of non-entrée mechanisms excludes refugees in a less direct way, relying on legal or other formal norms or arrangements to insulate an asylum state from the arrival or continued presence of refugees by, for example, the imposition of a visa requirement, invocation of “first country of arrival,” “safe third country,” or “safe country of origin” concepts, or even by the formal excision of territory. Refugee Convention, Art. 33 Prohibition of Expulsion or Return (“Refoulement”) 1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. 2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country. Art. 33 of the Refugee Convention is the primary response of the international community to the need of refugees to enter and remain in an asylum state.132

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“internationally incapable of excluding [the duty of non-refoulement] . . . As the 1969 Vienna Convention on the Law of Treaties (Article 27) expressly indicates, domestic legislation cannot be used to escape treaty obligations”: Jean Pierre Fonteyne, “Skulduggery on the High Seas,” Canberra Times, Sept. 11, 2001, at A-9. See also J. Phippen, “Australia’s Controversial Migration Policy,” Atlantic, Apr. 29, 2016. The ambiguous relationship between non-refoulement and a right of entry is clear from the remark of Justices McHugh and Gummow of the High Court of Australia that “[a]lthough none of the provisions in Chapter V [of the Refugee Convention] gives to refugees a right to enter the territory of a contracting state, in conjunction they provide some measure of protection”: Minister for Immigration and Multicultural Affairs v. Khawar, [2002] HCA 14 (Aus. HC, Apr. 11, 2002), per McHugh and Gummow JJ. Indeed, the duty of non-refoulement “preserves a subtle – and sometimes insecure – compromise between, on the one hand, the inescapable right of states to control access to their territory and, on the other, the imperious protection of refugees whose lives and liberty are threatened”: V. Chetail, “Are Refugee Rights Human Rights? An Unorthodox Questioning of the Relations between Refugee Law and

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The duty of non-refoulement is not, however, the same as a right to asylum from persecution,133 in at least two ways. First and most critically, the duty of non-refoulement only prohibits measures that cause refugees to “be pushed back into the arms of their persecutors”;134 it does not affirmatively establish a duty on the part of states to receive refugees.135 As an obligation “couched in negative terms,”136 it constrains, but does not fundamentally challenge, the usual prerogative of states to regulate

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Human Rights Law,” in R. Rubio-Marín ed., Human Rights and Immigration 19 (2014) (Chetail, “Are Refugee Rights Human Rights?”), at 33. Importantly, however, non-refoulement adds critical value since the duty of non-expulsion does not include a duty of non-exclusion: International Law Commission, “Draft Articles on the Expulsion of Aliens,” [2011] 2(2) Yearbook of the International Law Commission, at Art. 1, Comment 3. Interestingly, even the (non-binding) Universal Declaration of Human Rights provides only that “[e]veryone has the right to seek and to enjoy in other countries asylum from persecution” – a formulation which stops distinctly short of requiring states to grant asylum: Universal Declaration of Human Rights, UNGA Res. 217A(III), Dec. 10, 1948 (Universal Declaration), at Art. 14(1). Perhaps most tellingly, not even a vague formulation of this kind made its way into the (binding) Covenant on Civil and Political Rights. This treaty provides only that “[e]veryone shall be free to leave any country, including his own”: International Covenant on Civil and Political Rights, 999 UNTS 172 (UNTS 14668), adopted Dec. 16, 1966, entered into force Mar. 23, 1976 (Civil and Political Covenant), at Art. 12(2). Yet given these provisions and the Refugee Convention itself, the House of Lords erred in observing that “a person has no right to live elsewhere than in his country of nationality, and has no right to claim asylum”: Januzi and Hamid v. Secretary of State for the Home Department, [2006] UKHL 5 (UK HL, Feb. 15, 2006), at [6]. Statement of Mr. Chance of Canada, UN Doc. E/AC.32/SR.21, Feb. 2, 1950, at 7. In line with this understanding, the Court of Justice of the European Union determined that cognate duties under the European Convention on Human Rights “do[] not, however, imply a general duty for a Contracting State . . . to bring persons who are under the jurisdiction of another State within its own jurisdiction”: ND and NT v. Spain, Dec. Nos. 8675/15 and 8697/15 (ECtHR, Feb. 13, 2020), at [221]. Art. 33 was said to be “a negative duty forbidding the expulsion of any refugee to certain territories but [which] did not impose the obligation to allow a refugee to take up residence”: Statement of Mr. Weis of the International Refugee Organization, UN Doc. E/AC.32/SR.40, Aug. 22, 1950, at 33. See E. Lauterpacht and D. Bethlehem, “The Scope and Content of the Principle of Non-refoulement,” in E. Feller et al. eds., Refugee Protection in International Law 87 (Lauterpacht and Bethlehem, “Non-refoulement”), at [76]: “[T]he 1951 Convention and international law generally do not contain a right to asylum . . . [W]here States are not prepared to grant asylum to persons who have a well-founded fear of persecution, they must adopt a course of action which does not amount to refoulement. This may involve removal to a safe third country or some other solution such as temporary protection or refuge.” The English Court of Appeal thus correctly observed that “the key prohibition against refoulement . . . app[lies] only to persons who are within the territory (or at least the control) of a contracting state, and there is no obligation on a contracting state to admit asylum seekers to its territory”: R (AB) v. Secretary of State for the Home Department, [2018] EWCA Civ 383 (Eng. CA, Mar. 6, 2018), at [23]. M38/2002 v. Minister for Immigration and Multicultural and Indigenous Affairs, [2003] FCAFC 131 (Aus. FFC, June 13, 2003). See also NBMZ v. Minister for Immigration and Border Protection, [2014] FCAFC 38 (Aus. FFC, Apr. 9, 2014), at [12], in which the Full

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the entry into their territory of non-citizens.137 State parties may therefore deny entry to refugees so long as there is no real chance that their refusal will result in the return of the refugee to face the risk of being persecuted.138 This is so even if the refugee has not previously been recognized as a refugee by any other country.139 But where there is a real risk that rejection will expose the refugee “in any manner whatsoever” to the risk of being persecuted for a Convention ground, Art. 33 amounts to a de facto duty to admit the refugee, since admission is normally the only means of avoiding the alternative, impermissible consequence of exposure to risk.140

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Federal Court observed that Art. 33 “does not create a right to asylum, but it comprises a negative obligation to refrain from acts that would risk return to persecution.” It was similarly observed in the Canadian Federal Court of Appeal that “Article 33 of the Refugee Convention . . . impose[s] a negative obligation not to refoule, not a positive obligation to receive potential claimants”: Her Majesty the Queen v. Canadian Council for Refugees et al., [2008] FCA 229 (Can. FCA, June 27, 2008), at [114], per Evans J. (concurring). But in a case contesting Belgium’s refusal to issue a Syrian refugee family in Lebanon with a visa to come to Belgium in order to seek asylum, the Advocate General opined that the European Charter of Fundamental Rights “implies the existence of a positive obligation on the part of Member States, which must require them to issue a visa with limited territorial validity where there are substantial grounds to believe that the refusal to issue that document will have the direct consequence of exposing persons seeking international protection to torture or inhumane or degrading treatment”: X and X v. Belgium, Case No. C-636/16 PPU (CJEU, Opinion of Advocate General Mengozzi, Feb. 7, 2017), at [3]. A Grand Chamber of the Court, however, decided the case on jurisdictional grounds without addressing the merits of the Advocate General’s views: X and X v. Belgium, Case No. C636/16 PPU (CJEU, Mar. 7, 2017). “Apart from any limitations which may be imposed by specific treaties, states have been adamant in maintaining that the question of whether or not a right of entry should be afforded an individual, or to a group of individuals, is something which falls to each nation to resolve for itself”: Minister for Immigration and Multicultural Affairs v. Khawar, [2002] HCA 14 (Aus. HC, Apr. 11, 2002), per McHugh and Gummow JJ. This formulation was endorsed in R v. Immigration Officer at Prague Airport et al., ex parte European Roma Rights Centre et al., [2004] UKHL 55 (UK HL, Dec. 9, 2004), at [19]. In practice, of course, “the right of a state to grant or refuse asylum shall be exercised in accordance with its duty of non-refoulement,” meaning that “asylum is generally the only practical means to respect and ensure respect for Article 33”: V. Chetail, International Migration Law (2019) (Chetail, International Migration Law), at 192. In defining the relevant evidentiary standard for sending a refugee to another state in line with Art. 33, the Full Federal Court of Australia has helpfully insisted that the destination country must be one in which “the applicant will not face a real chance of persecution for a Convention reason,” and that there is not “a real chance that the person might be refouled [from the state of immediate destination] to a country where there will be a real risk of persecution [emphasis added]”: V872/00A v. Minister for Immigration and Multicultural Affairs, [2002] FCAFC 185 (Aus. FFC, June 18, 2002). Rajendran v. Minister for Immigration and Multicultural Affairs, (1998) 166 ALR 619 (Aus. FFC, Sept. 4, 1998). “While the principle does not oblige States to grant refugees asylum, it ensures that such persons must be allowed to stay, even if denied asylum, unless they can be sent to a third country where they are safe from persecution and from being returned to the country of

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The second critical distinction between non-refoulement and a right of asylum follows directly from the purely consequential nature of the implied duty to admit refugees under Art. 33. Because the right of entry that flows from the duty of nonrefoulement is entirely a function of the existence of a risk of being persecuted, it does not compel a state to allow a refugee to remain in its territory if and when that risk has ended. Thus, “[r]efugee status is a temporary status for as long as the risk of persecution remains.”141 Indeed, as the High Court of Australia has observed, “[t]he term ‘asylum’ does not appear in the main body of the text of the [Refugee] Convention; the Convention does not impose an obligation upon contracting states to grant asylum or a right to settle in those states to refugees arriving at their borders.”142

4.1.1 Beneficiaries of Protection The original prohibition of refoulement, contained in the 1933 Convention, could be claimed only by “refugees who have been authorized to reside [in the state party] regularly.”143 In line with this precedent, the original drafts144 of the duty of non-refoulement in the 1951 Refugee Convention extended protection only to refugees whose arrival was sanctioned by the asylum state. Yet both the Secretary-General’s and French drafts of the Convention also contained an additional sub-paragraph not conditioned on authorized entry, providing for a duty “in any case not to turn back refugees to the

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persecution”: W. Kälin, M. Caroni, and L. Heim, “Article 33, para. 1,” in A. Zimmermann ed., The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary 1327 (2011) (Kälin, “Article 33, para. 1”), at 1335. R v. Secretary of State for the Home Department, ex parte Yogathas, [2002] UKHL 36 (UK HL, Oct. 17, 2002), per Lord Scott. Minister for Immigration and Multicultural Affairs v. Khawar, [2002] HCA 14 (Aus. HC, Apr. 11, 2002), per McHugh and Gummow JJ. See also Ruddock v. Vadarlis, (2001) 110 FCR 491 (Aus. FFC, Sept. 18, 2001), at 521: “By Art. 33, a person who has established refugee status may not be expelled to a territory where his life and freedom would be threatened for a Convention reason. Again, there is no obligation on the coastal state to resettle in its own territory.” Similarly, the European Court of Human Rights has insisted that “neither the [European Convention on Human Rights] nor its Protocols protect, as such, the right to asylum”: ND and NT v. Spain, Dec. Nos. 8675/15 and 8697/15 (ECtHR, Feb. 13, 2020), at [188]. Convention relating to the International Status of Refugees, 159 LNTS 3663, done Oct. 28, 1933, entered into force June 13, 1935 (1933 Refugee Convention), at Art. 3. The drafts prepared by both the Secretary-General and France that were before the Ad Hoc Committee on Statelessness and Related Problems in February 1950 accorded protection against refoulement only to refugees “who have been authorized to reside [in the state party] regularly”: United Nations, “Proposal for a Draft Convention,” UN Doc. E/ AC.32/2, Jan. 17, 1950 (United Nations, “Draft Convention”), at 45 (draft Art. 24(1)); and France, “Proposal for a Draft Convention,” UN Doc. E/AC.32/L.3, Jan. 17, 1950 (France, “Draft Convention”), at 9 (draft Art. 19(1)).

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frontiers of their country of origin, or to territories where their life or freedom would be threatened.”145 A non-governmental text submitted by the Agudas Israel World Organization was, however, selected over the two official drafts as the basis for this part of the work of the Ad Hoc Committee on Statelessness and Related Problems.146 Under the Agudas approach as modified by the delegates, the distinct provisions addressing non-refoulement and non-return to the risk of persecution were collapsed into a single provision applicable to all refugees, with no mention of the need for authorized arrival.147 This critical conceptual shift attracted no comment.148 The drafting process thereafter proceeded on the assumption that prior permission to reside in the asylum state was not a relevant issue.149 This decision to protect all refugees from the risk of 145

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United Nations, “Draft Convention,” at 45 (draft Art. 24(3)); and France, “Draft Convention,” at 9 (draft Art. 19(3)). UN Doc. E/AC.32/SR.20, Feb. 1, 1950, at 3. The representative of the United Kingdom argued that this text “presented the question of expulsion and non-admittance in a more logical form than did the others”: ibid. “Each of the High Contracting Parties undertakes not to expel or to turn back refugees to the frontiers of territories where their life or freedom would be threatened on account of their race, religion, nationality or political opinions”: UN Doc. E/AC.32/L.22, Feb. 1, 1950. Indeed, an exchange between the Venezuelan, French, and Canadian representatives makes clear that the provision was not to be limited to refugees lawfully admitted to residency. “The Chairman, speaking as the representative of Canada, said that his country was in a similar situation to that of Venezuela in that shiploads of emigrants were often landed far away from any port control authorities. The difficulties entailed by such practices were, however, very small compared with those facing European countries. That was why he wanted to achieve unanimity on article [33], which gave refugees the minimum guarantees to which they were entitled”: Statement of Mr. Chance of Canada, UN Doc. E/AC.32/SR.22, Feb. 2, 1950, at 22. Ben-Nun’s analysis of the drafting history thus sensibly concludes “that in all probability, non-refoulement did indeed apply to refugees on the high seas, which had been a well-known phenomenon since the late 1930s”: G. Ben-Nun, “The British-Jewish Roots of Non-refoulement and its True Meaning for the Drafters of the 1951 Refugee Convention,” (2014) 28(1) Journal of Refugee Studies 93 (Ben-Nun, “British-Jewish Roots”), at 113. A Swiss protest that the article “concerned only refugees lawfully resident in a country and not those who applied for admission or entered the country without authorization” evoked an immediate answer from the Israeli representative that in fact “[t]he Swiss observer was apparently under a misapprehension with regard to the application of article [33]. In the discussions at the first session it had been agreed that article [33] referred both to refugees legally resident in a country and those who were granted asylum for humanitarian reasons. Apparently the Swiss Government was prepared to accept the provisions of the article with regard to lawfully resident refugees but not to those entering illegally and granted asylum. He feared that the Swiss Government might find its interpretation in conflict with the general feeling which had prevailed in the Committee when it had drafted the article”: Statements of Mr. Schurch and Mr. Robinson, UN Doc. E/AC.32/SR.40, Aug. 22, 1950, at 32–33. But see Kälin, “Article 33, para. 1,” at 1341, contending that “[w]hether the prohibition of refoulement would apply to individual cases of refugees arriving at the border was not discussed.”

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refoulement is clearly of huge importance to most contemporary refugees, since they have generally not been authorized to travel to, much less to reside in, the state from which they request protection. Indeed, as the Full Federal Court of Australia insisted in the context of an Iranian refugee denied a visa by the Minister, “the protection obligations in Article 33 of the Refugee Convention applied to the applicant because he is a refugee even though he has been refused a visa.”150 On a related point, it has previously been explained that the duty of nonrefoulement inheres on a provisional basis even before refugee status has been formally assessed by a state party.151 In brief, because it is one’s de facto circumstances, not the official validation of those circumstances, that give rise to Convention refugee status,152 genuine refugees may be fundamentally disadvantaged by the withholding of rights pending status assessment. Unless status assessment were virtually immediate, refugees who are rights holders under international law could be precluded from exercising their legal rights during the often protracted domestic processes by which their entitlement to protection is verified by officials.153 Not only do Convention rights clearly inhere (albeit provisionally) on the basis of satisfaction of the relevant attachment requirement, but the duty of non-refoulement is one of a small number of rights that is not contingent even on arrival at a state’s territory, much less on the formal adjudication of status.154 The duty therefore applies whether or not refugee status has been formally recognized and as soon as a refugee comes under the jurisdiction of a state party.155 150

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NBMZ v. Minister for Immigration and Border Protection, [2014] FCAFC 38 (Aus. FFC, Apr. 9, 2014), at [115]. See Chapter 3.1 at note 34 ff. Thus, “all asylum seekers are protected by the principle of non-refoulement, and the protection applies as long as the claim to refugee status has not been finally rejected after a proper procedure”: Alex Ruta v. Minister of Home Affairs, [2018] ZACC 52 (SA CC, Dec. 20, 2018), at [29]. See Chapter 3.1 at note 28. The South African High Court thus correctly determined that the making of a claim to refugee status on new grounds after an original claim was dismissed “will in some cases [give rise to] an obligation on the Department to reconsider that application . . . The principle of non-refoulement is binding on our country . . . It imposes an obligation not to surrender persons . . . where there are substantial grounds for believing that the person would . . . face persecution in the receiving state”: Esnat Maureen Makumba v. Minister of Home Affairs, Case No. 6183/14 (SA HC, Dec. 3, 2014), at [20]. “Article 33 protects ‘refugees’ against return . . . [T]his notion has to be understood in a wide sense, encompassing e.g. asylum seekers whose claims to be refugees have not been refuted by a final decision”: Kälin, “Article 33, para. 1,” at 1360. See Chapter 3.1.1 at note 40. Similarly, in the context of European asylum law, “the fact that the parties concerned had failed to expressly request asylum did not exempt Italy from fulfilling its [non-refoulement] obligations”: F. Cherubini, Asylum Law in the European Union (2015), at 224. ND and NT v. Spain, Dec. Nos. 8675/15 and 8697/15 (ECtHR, Feb. 13, 2020), at [179]. See generally Chapter 3.1.1 and Chetail, International Migration Law, at 187, 189.

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A somewhat more contentious question is whether the beneficiary class for protection against refoulement under the terms of Art. 33 is the same as the class of refugees defined by Art. 1 of the Refugee Convention. On the one hand, a narrow textual analysis of the kind embraced by the Supreme Court of the United States might lead one to believe that not all refugees are guaranteed Art. 33 rights, since the text of the provision prohibits only the return of refugees to places where their “life or freedom would be threatened” for a Convention reason.156 As Weis affirms, however, the drafters of the Convention had no desire to limit protection against refoulement to only a subset of refugees.157 Rather, the reference to “life or freedom” was intended to function as a shorthand for the risks that give rise to refugee status under the terms of Art. 1.158 The drafting history affords no evidence whatever for the contrary thesis that this choice of language was intended fundamentally to limit the ability to claim the Convention’s most basic right.159 As the High Court of Kenya recently concluded, 156

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In a misguided effort to reconcile then prevailing domestic US law to the requirements of international law (since amended by 8 USC 1158(c)(1)(A)), the US Supreme Court seized on the “life or freedom” language in Art. 33 to validate the more limited American approach. The Court thus determined that “those who can only show a well-founded fear of persecution are not entitled to anything, but are eligible for the discretionary relief of asylum”: Immigration and Naturalization Service v. Cardoza Fonseca, (1987) 480 US 421 (US SC, Mar. 9, 1987). This approach has recently been emphasized by the US Attorney General, who insisted that “[a]sylum is a discretionary form of relief from removal . . . I remind all asylum adjudicators that a favorable exercise of discretion is a discrete requirement for the granting of asylum and should not be presumed or glossed over solely because an applicant otherwise meets the burden of proof for asylum eligibility [emphasis added]”: Matter of AB, Dec. No. 3929, 27 I&N Dec. 316 (US AG, June 11, 2018), at 345. But see generally J. Hathaway and A. Cusick, “Refugee Rights Are Not Negotiable,” (2000) 14(2) Georgetown Immigration Law Journal 481. “The words ‘where their life or freedom was threatened’ may give the impression that another standard is required than for refugee status in Article 1. This is, however, not the case. The Secretariat draft referred to refugees ‘escaping from persecution’ and to the obligation not to turn back refugees ‘to the frontier of their country of origin, or to territories where their life or freedom would be threatened on account of their race, religion, nationality, or political opinions.’ In the course of drafting the words ‘country of origin,’ ‘territories where their life or freedom was threatened’ and ‘country in which he is persecuted’ were used interchangeably. The reference to Article 1 of the Convention was introduced mainly to refer to the dateline of 1 January 1951 but it also indicated that there was no intention to introduce more restrictive criteria than that of ‘well-founded fear of persecution’ used in Article 1(A)(ii)”: P. Weis, The Refugee Convention, 1951: The Travaux Préparatoires Analysed with a Commentary by Dr. Paul Weis (posthumously pub’d., 1995) (Weis, Travaux), at 303, 341. See Chapter 4.2.1 at note 1003 for discussion of the choice of comparable language for Art. 31(1). As Grahl-Madsen observes, “it was quite unwittingly that the concept of ‘life [or] freedom’ was introduced [into] Article 31, and it seems that the widening of [the] scope of the provision . . . must not lead us to restrict its meaning with regard to the kinds of

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As to the words “where his life or freedom would be threatened,” it appears from the travaux préparatoires that they were not intended to lay down a stricter criterion than the words “well-founded fear of persecution” figuring in the definition of the term “refugee” in Article 1(A)(2). The different wording was introduced for another reason, namely to make it clear that the principle of non-refoulement applies not only in respect of the country of origin but to any country where a person has reason to fear persecution.160

Diametrically opposed to the approach of the US Supreme Court, Lauterpacht and Bethlehem argue that “the threat contemplated in Article 33(1) [may be] broader than simply the risk of persecution . . . [including] a threat to life or freedom [that] may arise other than in consequence of persecution.”161 In support of this thesis, they rely on the broadening of UNHCR’s competence as an agency, on the humanitarian objectives of the Refugee Convention, and on the fact that various regional human rights instruments are now understood to provide for more broadly applicable forms of protection against refoulement. This leads them to conclude that “a broad reading of the threat contemplated by Article 33(1) is warranted [emphasis added],”162 and specifically that: [T]he words “where his life or freedom would be threatened” must be construed to encompass circumstances in which a refugee or asylumseeker (a) has a well-founded fear of being persecuted, (b) faces a real risk of torture or cruel, inhuman or degrading treatment or punishment, or (c) faces other threats to life, physical integrity, or liberty.163

Putting to one side the question of whether there is today a broader duty of non-refoulement under customary international law,164 and recognizing that the threats noted in (b) and (c) are in any event likely to fall within modern understandings of a risk of “being persecuted,”165 the analysis presented is

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persecution which warrant exemption from penalties. It is likewise inadmissible to use the language of Articles 31 and 33 to restrict the meaning of ‘persecution’ in Article 1. The word ‘freedom’ must be understood in its widest sense”: A. Grahl-Madsen, Commentary on the Refugee Convention 1951 (1963, pub’d. 1997) (Grahl-Madsen, Commentary), at 175. See also Kälin, “Article 33, para. 1,” at 1342 (“Every person encompassed by the refugee definition according to Art. 1 is automatically protected by Art. 33, provided none of the exclusion clauses of Art. 1F applies”). Kenya National Commission on Human Rights v. Attorney General, Constitutional Petition No. 227 of 2016 (Ken. HC, Feb. 9, 2017), at 14. Lauterpacht and Bethlehem, “Non-refoulement,” at [127]. 162 Ibid. at [128]–[132]. Ibid. at [133]. 164 See Chapter 4.1.6. Justice Kirby of the High Court of Australia has observed that “decision-makers in several other jurisdictions [have approached] the meaning of the word ‘persecuted’ by reference to the purpose for which, and the context in which, it appears rather than strictly by reference to local dictionaries . . . [The Refugee Convention’s] meaning should be ascertained having regard to its object, bearing in mind that the Convention is one of several important international treaties designed to redress ‘violation[s] of basic human rights, demonstrative of a failure of state protection’”: Minister for Immigration and Multicultural Affairs v. Khawar, [2002] HCA 14

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simply unsustainable as a matter of law. The fact that there has been an expansion of UNHCR’s agency mandate and of the duty of non-return under international human rights law more generally cannot be invoked to determine the meaning of Art. 33(1) of the Refugee Convention. While reference can, of course, be made to understandings of these more general developments in order to interpret cognate ambiguous language,166 evolution outside refugee law cannot be relied upon to override the explicit textual linkage between the risks described in Art. 33(1) and entitlement to recognition of refugee status under Art. 1.167 A sensible middle-ground between the extremes of the US Supreme Court and that of Lauterpacht and Bethlehem was taken by Lord Goff in the House of Lords decision of Sivakumaran – namely that Art. 33’s guarantee against refoulement where “life or freedom would be threatened” for a Convention ground extends to situations where there is a risk of “being persecuted” for a Convention ground: It is, I consider, plain, as indeed was reinforced in argument by counsel for the High Commissioner with reference to the travaux préparatoires, that the non-refoulement provision in Article 33 was intended to apply to all persons determined to be refugees under Article 1 of the Convention.168

The approach has also been routinely endorsed in the Australian jurisprudence,169 is affirmed in the more recent English case law,170 has been adopted

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(Aus. HC, Apr. 11, 2002), per Kirby J. The Canadian Supreme Court has held that “[u]nderlying the Convention is the international community’s commitment to the assurance of basic human rights without discrimination . . . Persecution, for example, undefined in the Convention, has been ascribed the meaning of sustained or systemic violation of basic human rights demonstrative of a failure of state protection”: Canada v. Ward, (1993) 103 DLR 4th 1 (Can. SC, June 30, 1993). It has similarly been determined in the United Kingdom that “core entitlements [relevant to the meaning of ‘being persecuted’] . . . may be found by reference either to obligations under international law (obligations between states), or by reference to the human rights of individuals, for example pursuant to the conventions on human rights, or as recognized by the international community at large”: Sepet v. Secretary of State for the Home Department, [2001] EWCA Civ 681 (Eng. CA, May 11, 2001), per Waller L.J., appeal to the House of Lords rejected in Sepet and Bulbul v. Secretary of State for the Home Department, [2003] UKHL 15 (UK HL, Mar. 20, 2003). See Chapter 2.3 at note 137. 167 See Chapter 2.1 at note 42. R v. Secretary of State for the Home Department, ex parte Sivakumaran, [1988] 1 All ER 193 (UK HL, Dec. 16, 1987), per Lord Goff at 202–203. “Article 33 states the principle of non-refoulement, which applies to persons who are refugees within the meaning of Article 1. Although the definition of ‘refugee’ in Article 1 and the identification of persons subject to the non-refoulement obligation in Article 33 differ, it is clear that the obligation against [refoulement] applies to persons who are determined to be refugees under Article 1”: M38/2002 v. Minister for Immigration and Multicultural and Indigenous Affairs, [2003] FCAFC 131 (Aus. FFC, June 13, 2003). See also Minister for Immigration and Multicultural Affairs v. Savvin, (2000) 171 ALR 483 (Aus. FFC, Apr. 12, 2000). “In my judgment it is Art. 1 . . . which must govern the scope of Art. 33 rather than the other way round”: Adan v. Secretary of State for the Home Department, [1997] 1 WLR 1107

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in New Zealand,171 and was found to be compelling by the Supreme Court of Canada.172 Not only is it a position that is firmly rooted in the actual intentions of the drafters, but it most effectively meshes with the internal structure of the Convention itself.173 In contrast, the conservative view championed by the American Supreme Court174 implies that at least some persons with a wellfounded fear of being persecuted may nonetheless be forced back to persecution unless the risk they face is particularly egregious – surely an interpretation at odds with the Convention’s basic purpose of ensuring that refugees are granted the Convention’s protections.175 Equally of concern, the expansionist optic contended for by Lauterpacht and Bethlehem176 seems designed effectively to require state parties to the Refugee Convention to implement duties that in fact follow from

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(Eng. CA, Feb. 13, 1997), per Simon Brown L.J. While the House of Lords reversed the result reached in the Court of Appeal, four members of the House of Lords (Lord Lloyd of Berwick, Lord Goff of Chieveley, Lord Nolan, and Lord Hope of Craighead) nonetheless specifically endorsed the views of Simon Brown L.J. on this point: R v. Secretary of State for the Home Department, ex parte Adan, [1999] 1 AC 293 (UK HL, Apr. 2, 1998), at 306, 301, 312, and 312. The English Court of Appeal expressly approved of the Sivakumaran approach, noting that “the non-refoulement provision was intended to apply to all persons determined to be refugees under Article 1 of the Convention”: AA v. Secretary of State for the Home Department, [2006] EWCA Civ 401 (Eng. CA, Apr. 12, 2006), at [93]. The New Zealand Court of Appeal has determined that the scope of prohibited return under Art. 33(1) “is usually interpreted as covering all situations where the refugee risks any type of persecution for a Convention reason”: Attorney General v. Zaoui, [2005] 1 NZLR 690 (NZ CA, Sept. 30, 2004), at [36]; varied on other grounds in Attorney-General v. Zaoui, [2005] NZSC 38 (NZ SC, June 21, 2005). “The different words used in Articles 1 and 33 give rise to the question of whether all persons who meet the definition of refugee in Article 1 . . . are entitled to protection under Article 33, or whether some different or higher standard is required to be entitled to that protection. There is a strong case to be made that the thresholds are in fact the same under both provisions . . . There are, however, opinions to the contrary in the United States . . . [But even the majority position of the US Supreme Court in Cardoza-Fonseca] was not accepted by three members of the Court. Given the fundamental human rights character of the Refugee Convention and the centrality to refugee law of the principle of nonrefoulement, I, with respect, find the views of the commentators and the judicial opinions from other jurisdictions . . . more persuasive on this point”: Jószek Németh v. Minister of Justice of Canada, [2010] SCC 56 (Can. SC, Nov. 25, 2010), at [99]–[101]. Wouters agrees that such an interpretation is required for reasons of internal coherence, noting that any other view “would lead to incomprehensible consequences”: C. Wouters, International Legal Standards for the Protection from Refoulement (2009) (Wouters, Refoulement), at 57. See note 156, noting that the US Supreme Court’s finding that a risk to “life or freedom” is a more demanding notion than a risk of “being persecuted.” “The High Contracting Parties . . . [c]onsidering that it is desirable to revise and consolidate previous international agreements . . . and to extend the scope of and the protection accorded by such instruments by means of a new agreement . . . [h]ave agreed as follows”: Refugee Convention, at Preamble. The Convention then provides a definition of refugee status in Art. 1, and defines the rights that follow from refugee status in Arts. 2–34. See text at note 161.

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other human rights conventions – even if states are not actually parties to those other accords. The middle-ground position on Art. 33 contended for here, in contrast, ensures that all persons who are refugees are protected from return to the risks which gave rise to that status: no more, and no less. It follows from this endorsement of a coordinated understanding of Arts. 1 and 33 that there is at least one, quite fundamental, limitation on the scope of Art. 33’s duty of non-refoulement. If the duty of non-refoulement under Art. 33 of the Refugee Convention can be claimed only by persons who are, in fact, refugees, then it is not a right that inheres in persons who have yet to leave their own country. This is because Art. 1 of the Convention defines a refugee as a person who “is outside the country of his nationality.”177 Art. 33 is not therefore a constraint on actions which deny would-be refugees the ability to leave their own state. This issue was thoroughly considered in the English European Roma Rights Centre case.178 One of the arguments advanced was that the pre-entry clearance procedure operated by British authorities at Prague Airport was in breach of Art. 33. It was agreed that the system was “aimed principally at stemming the flow of asylum-seekers from the Czech Republic, the vast majority of these being of Romani ethnic origin (Roma), and that in this it has plainly had some considerable success.”179 Moreover, it was also understood that “[t]he object of these controls . . . so far as asylum countries are concerned, is to prevent [refugees] from reaching [British] shores.”180 The key issue was therefore “whether a scheme designed to prevent any such asylum claims (whether genuine or otherwise) being made in the United Kingdom is inconsistent with the United Kingdom’s obligations in international law, in particular under the Convention.”181 The Court of Appeal determined that it was not: That Article 33 of the Convention has no direct application to the Prague operation is plain . . . [I]t applies in terms only to refugees, and a refugee is defined . . . as someone necessarily “outside the country of his nationality” . . . For good measure, Article 33 forbids “refoulement” to “frontiers” and, whatever precise meaning is given to the former term, it cannot comprehend action which causes someone to remain on the same side of the frontier as they began; nor indeed could such a person be said to have been returned to any frontier.182 177

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Refugee Convention, at Art. 1(A)(2). In the case of persons who are stateless, Art. 1 requires that they be “outside the country of [their] former habitual residence”: ibid. R (European Roma Rights Centre and Others) v. Immigration Officer at Prague Airport, [2003] EWCA Civ 666 (Eng. CA, May 20, 2003), rev’d on other grounds at [2004] UKHL 55 (UK HL, Dec. 9, 2004). R (European Roma Rights Centre and Others) v. Immigration Officer at Prague Airport, [2003] EWCA Civ 666 (Eng. CA, May 20, 2003), at [3]. Ibid. at [1]. 181 Ibid. at [18]. Ibid. at [31]. The House of Lords agreed, noting succinctly that “[t]he requirement that a foreign national applying for refugee status must, to qualify as a refugee, be outside his country of nationality is unambiguously expressed in the Convention definition of refugee”: R v.

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This conclusion is legally sound, even as it clearly points to a serious protection risk that arises by virtue of the gap between the duty of nonrefoulement and a broader notion of access to asylum.183 In truth, in-country interdiction schemes are more effectively challenged as violations by the home state of Art. 12(2) of the Civil and Political Covenant, which provides that “[e]veryone shall be free to leave any country, including his own.”184 The Human Rights Committee has determined that Freedom to leave the territory of a State may not be made dependent on any specific purpose or on the period of time the individual chooses to stay outside the country. Thus traveling abroad is covered, as well as departure for permanent emigration. Likewise, the right of the individual to determine the State of destination is part of the legal guarantee.185

This right may only be limited for a reason deemed legitimate under the Covenant,186 and may in any event not be limited on a discriminatory

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Immigration Officer at Prague Airport et al., ex parte European Roma Rights Centre et al., [2004] UKHL 55 (UK HL, Dec. 9, 2004), at [16]. In the High Court decision, it is recorded that counsel advanced the argument that the Prague pre-screening system is “if not in breach of an express term or obligation under the Convention, yet a breach of the obligation of good faith owed by a signatory state, in that it would be preventing those seeking asylum from gaining international protection”: European Roma Rights Centre v. Immigration Officer at Prague Airport, [2002] EWCA 1989 (Eng. HC, Oct. 8, 2002), at [34]. In response, the court noted that “[t]he UNHCR has, it seems, reservations about a pre-clearance system, but it does not explain either how in practice it is to be distinguished from a visa system, and whether that system too is to be regarded as objectionable, and if so on what basis, or how the position it takes . . . is consistent with its own Handbook”: ibid. at [49]. The House of Lords emphatically rejected the notion that the duty of good faith treaty interpretation could effectively result in the imposition of duties at odds with the text of the treaty, finding that “there is no want of good faith if a state interprets a treaty as meaning what it says and declines to do anything significantly greater than or different from what it has agreed to do”: R v. Immigration Officer at Prague Airport et al., ex parte European Roma Rights Centre et al., [2004] UKHL 55 (UK HL, Dec. 9, 2004), per Lord Bingham at [19]. See generally the discussion of the implications of the duty of good faith interpretation in the opinion of Lord Hope, ibid. at [57]–[64], leading to the conclusion that “[w]hat the Convention does is assure refugees of the rights and freedoms set out in chapters I to V when they are in countries that are not their own. It does not require the state to abstain from controlling the movements of people outside its border who wish to travel to it in order to claim asylum”: ibid. at [64]. Civil and Political Covenant, at Art. 12(2). “Refugees, like all persons, are free to leave any country pursuant to Art. 12(2) of the ICCPR. In accordance with Art. 12(3), the freedom to depart may be subjected only to limitations provided by law, implemented consistently with other ICCPR rights, and shown to be necessary to safeguard a state’s national security, public order (ordre public), public health or morals, or the rights and freedoms of others”: “The Michigan Guidelines on Refugee Freedom of Movement,” (2017) 39 Michigan Journal of International Law 1, at [4]. UN Human Rights Committee, “General Comment No. 27: Freedom of Movement” (1999), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [8]. This right is subject only to “restrictions . . . provided by law, [and which] are necessary to protect national security, public order (ordre public), public health or morals or the rights

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basis.187 Thus, at least in a situation akin to the Prague Airport case – where the prohibition of seeking protection abroad is unlikely to be deemed a legitimate reason for denial of the right to leave one’s country, and where the prohibition was, at least in practice, implemented on a race-specific basis188 – the home state should be found in breach of the Covenant.189 Indeed, both the home state and any foreign countries with which it chooses to share jurisdiction over departure from its territory should be held jointly liable for a breach of Art. 12(2).190 But this does not change the fact that prohibitions on departure operated from within the territory of one’s own state, and which preclude exit altogether, cannot breach rights under the Refugee Convention, including to protection against refoulement: Article 33 . . . is concerned only with where a person must not be sent, not with where he is trying to escape from. The Convention could have, but chose not to, concern itself also with enabling people to escape their

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and freedoms of others, and are consistent with the other rights recognized in the present Covenant”: Civil and Political Covenant, at Art. 12(3). The scope of these permissible limitations is discussed in Chapter 6.6 at note 1123. Art. 12(3) requires that restrictions be “consistent with the other rights recognized in the present Covenant”; if discriminatory, e.g. on grounds of race, there would be a breach of both Arts. 2(1) and 26 of the Covenant, thus disqualifying them from meeting the requirements of Art. 12(3): Civil and Political Covenant, at Art. 12. The House of Lords struck down the British pre-screening system at Prague Airport precisely on the grounds that “[a]ll the evidence before us, other than that of the intentions of those in charge of the operation, which intentions were not conveyed to the officers on the ground, supports the inference that Roma were, simply because they were Roma, routinely treated with more suspicion and subjected to more intensive and intrusive questioning than non-Roma . . . [S]etting up an operation like this, prompted by an influx of asylum seekers who are overwhelmingly from one comparatively easily identifiable racial or ethnic group, requires enormous care if it is to be done without discrimination. That did not happen. The inevitable conclusion was that the operation was inherently and systematically discriminatory and unlawful”: R v. Immigration Officer at Prague Airport et al., ex parte European Roma Rights Centre et al., [2004] UKHL 55 (UK HL, Dec. 9, 2004), per Baroness Hale at [97]. Indeed, “[s]o long as an individual seeking to leave a state’s territory does so freely, meaning that he or she has made an autonomous decision to do so, the state of departure may not lawfully restrict the right to leave on the basis of concerns about risk to the individual’s life or safety during the process of leaving or traveling”: “The Michigan Guidelines on Refugee Freedom of Movement,” (2017) 39 Michigan Journal of International Law 1, at [6]. Short of exercising territorial control, shared jurisdiction may be established on the basis of either authority over individuals or the exercise of public powers: see generally Chapter 3.1.1. The UN Human Rights Committee has read Art. 2(1) of the Civil and Political Covenant disjunctively, finding that the obligation to respect rights “within [a state’s] territory and to all persons subject to [its] jurisdiction” means that “a State party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party”: UN Human Rights Committee, “General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant” (2004), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [10].

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country by providing for a right of admission to another country to allow them to do so . . . In an ideal world there would no doubt be provision for states to facilitate the escape of persecuted minorities . . . I am satisfied, however, that on no view of the Convention is this within its scope. The distinction between, on the one hand, a state preventing an aspiring asylum-seeker from gaining access from his own country to its territory, and on the other hand returning such a person to his own country . . . can be made to seem a narrow and unsatisfactory one. In my judgment, however, it is a crucial distinction to make and it is supported by both the text of the Convention and by the authorities dictating its scope.191

Art. 33 is similarly incapable of invalidating the classic tool of non-entrée: visa controls imposed on the nationals of refugee-producing states,192 enforced by carrier sanctions.193 Visa control policies are generally enforced in countries of origin by airline and other common carriers, aware that failure to do so could result in penalties or prosecution by the destination country.194 Because countries generally do not issue visas for the purpose of entering their asylum systems, most travelers who honestly state that they intend to claim refugee status upon arrival will in practice be turned back at the port of departure. 191

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R (European Roma Rights Centre and Others) v. Immigration Officer at Prague Airport, [2003] EWCA Civ 666 (Eng. CA, May 20, 2003), at [37], [43], affirmed in this regard in R v. Immigration Officer at Prague Airport et al., ex parte European Roma Rights Centre et al., [2004] UKHL 55 (UK HL, Dec. 9, 2004), at [13]–[17]. In many cases, of course, visa requirements are imposed for general migration control reasons, with no intent to stop the departure of refugees. Yet it remains that visa controls are unquestionably crude mechanisms that fail to distinguish between persons at risk of persecution and others, or between those at-risk persons who can safely access protection in other countries, and those who have no options. UNHCR has traditionally seemed unwilling to confront the fact that the denial of access to refugees by the imposition of visa controls is not simply the inadvertent consequence of a general policy of migration control, but can actually be a policy targeted at those who wish to claim protection. For example, the only mention of visa controls in UNHCR’s position paper on interception notes that “[s]tates have a legitimate interest in controlling irregular migration. Unfortunately, existing controls, such as visa requirements and the imposition of carrier sanctions . . . often do not differentiate between genuine asylum-seekers and economic migrants. National authorities, including immigration and airline officials posted abroad, are frequently not aware of the paramount distinction between refugees, who are entitled to international protection, and other migrants, who are able to rely on national protection”: UNHCR, “Interception of Asylum-Seekers and Refugees: The International Framework and Recommendations for a Comprehensive Approach,” UN Doc. EC/50/SC/CRP.17, June 9, 2000 (UNHCR, “Interception”), at [17]. Greater reliance by refugees on smugglers and traffickers in order to circumvent increasingly sophisticated border controls has, however, arguably reduced the efficacy of visa controls as a mechanism of non-entrée. Smugglers and traffickers have strong economic incentives to produce false travel documents that are often difficult to detect; they also secure access for their clients by bribing border officials and adapting travel routes. See Gammeltoft-Hansen and Hathaway, “Cooperative Deterrence,” at 246.

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Countries of origin are normally aware of such practices, or could readily inform themselves with minimal effort.195 In contrast to in-country interception of the kind implemented by the United Kingdom at Prague Airport, however, most visa controls – including, for example, those routinely imposed by Canada196 and now required by European Union law197 – operate passively, with no need for the state imposing the controls to establish a physical presence in the would-be refugee’s country of origin. UNHCR argued before the English courts that reliance could be placed on this distinction in order to strike down the Prague system without simultaneously invalidating visa control systems that operate to keep refugees inside their own countries. It suggested “that there is a distinction to be made between ‘the active interdiction or interception of persons seeking refuge from persecution’ on the one hand and ‘passive regimes, such as visa controls and carrier sanctions’ on the other.” The Court of Appeal sensibly found this distinction to be without merit:198 In my judgment, there is nothing in these criticisms and indeed the Prague scheme seems to me to constitute if anything a less, rather than more, serious problem for would-be asylum-seekers than visa control . . . . . . [Objections] to visa controls . . . do not sound in international law. Rather one must hope that when in truth acute humanitarian concerns arise states will respond beyond the strict call of their international obligations. This, I believe, is the only answer the Court is entitled to give when [counsel] conjures up the spectre of a fresh holocaust. Visa controls are, in short, clearly not outlawed under the Convention or under international law generally.199 195

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See Feller, “Sanctions”; and J. Hathaway and J. Dent, Refugee Rights: Report on a Comparative Survey (1995), at 13–14. See text at notes 93–94. 197 See text at note 97. R (European Roma Rights Centre and Others) v. Immigration Officer at Prague Airport, [2003] EWCA Civ 666 (Eng. CA, May 20, 2003), at [48]. In another context, though, UNHCR seemed to argue that visa controls can breach Art. 33. “Immigration control measures, although aimed principally at combatting irregular migration, can seriously jeopardize the ability of persons at risk of persecution to gain access to safety and asylum. As pointed out by UNHCR in the past, the exclusive resort to measures to combat abuse, without balancing them by adequate means to identify genuine cases, may result in the refoulement of refugees [emphasis added]”: UNHCR, “Interception,” at [18]. See also UNHCR, “UNHCR Position: Visa Requirements and Carrier Sanctions,” Sept. 1995 (noting in particular that when efforts to control unauthorized migration generally “interfere with the ability of persons at risk of persecution to gain access to safety and obtain asylum in other countries, then States act inconsistently with their international obligations towards refugees”). R (European Roma Rights Centre and Others) v. Immigration Officer at Prague Airport, [2003] EWCA Civ 666 (Eng. CA, May 20, 2003), at [49]–[50]. The House of Lords was in full agreement on this point, noting that “[h]ad a visa regime been imposed, the effect on the appellants, so far as concerned their applications for asylum, would have been no different. But it could not plausibly be argued that a visa regime would have been contrary

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The Court is quite right that visa controls, which operate routinely and in many places, actually pose a greater risk to refugees than do in-country interception schemes, which tend to be more selective and less routinely operationalized.200 And the Court is equally correct that “[o]n the basis of the [Refugee] Convention as it stands at present, there is no obligation on a signatory state not to introduce or continue a system of immigration control, whether by way of a requirement for visas or by the operation of a preclearance system.”201 As in the case of in-country interdiction schemes described above, the most plausible legal avenue to challenge visa control systems of this sort is to invoke Art. 12 of the Civil and Political Covenant, in this case in order to hold the home state liable for its complicity in efforts conducted under its jurisdiction to stymie the departure of at-risk persons who wish to claim refugee status abroad.202 The UN Human Rights Committee has indicated its view that, in

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to the practice of nations”: R v. Immigration Officer at Prague Airport et al., ex parte European Roma Rights Centre et al., [2004] UKHL 55 (UK HL, Dec. 9, 2004), at [28]. See also R v. Uxbridge Magistrates Court, ex parte Adimi, [1999] 4 All ER 520 (Eng. HC, July 29, 1999), per Simon Brown L.J.: “Although under the Convention subscribing states must give sanctuary to any refugee who seeks asylum (subject only to removal to a safe third country), they are by no means bound to facilitate his arrival. Rather they strive increasingly to prevent it. The combined effect of visa requirements and carrier’s liability has made it well nigh impossible for refugees to travel to countries of refuge without false documents.” R (European Roma Rights Centre and Others) v. Immigration Officer at Prague Airport, [2003] EWCA Civ 666 (Eng. CA, May 20, 2003), at [49], affirmed in this regard in R v. Immigration Officer at Prague Airport et al., ex parte European Roma Rights Centre et al., [2004] UKHL 55 (UK HL, Dec. 9, 2004), at [34]. See text at note 184. In addition to reliance on Art. 12(2) of the Civil and Political Covenant, it has also been contended that where visa controls are applied after a refugee’s departure from his or her own country – for example, in a transit country – this may amount to a breach of the Refugee Convention’s Art. 31, which prohibits the imposition of penalties on refugees for illegal entry or presence: see Chapter 4.2. This possibility was raised by the English High Court in relation to refugees interdicted in the United Kingdom because they did not have the required Canadian visas for onward travel. In R v. Uxbridge Magistrates Court, ex parte Adimi, [1999] 4 All ER 520 (Eng. HC, July 29, 1999), Simon Brown L.J. observed, “If I am right in saying that refugees are ordinarily entitled to choose where to claim asylum and that a short stopover en route in a country where a traveller’s status is in no way regularized will not break the requisite directness of flight, then it must follow that these applicants would have been entitled to the benefit of Article 31 had they reached Canada and made their asylum claims there. If Article 31 would have availed them in Canada, then logically its protection cannot be denied to them [in the United Kingdom] merely because they have been apprehended en route.” Indeed, on the basis of this argument, it might even be possible to find the state which established the visa controls to be liable for breach of Art. 31 where it exercises shared jurisdiction with the transit state – for example, by staffing or overseeing the personnel who enforce the visa controls. The real difficulty in relying on Art. 31 as an alternative to the (substantively inadequate) Art. 33, however, is that it does not prohibit the classic result of a visa control, namely return to the country of origin. As is detailed below, the drafters were clear that expulsion or return are not to be considered “penalties” for the purposes of Art. 31 protection: see Chapter 4.2.3.

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at least some cases, the operation of a system of visa controls and carrier sanctions will put a state party in breach of the duty to respect the right of persons to leave their own country, and more generally to enjoy freedom of international movement: The practice of States often shows that legal rules and administrative measures adversely affect the right to leave, in particular, a person’s own country. It is therefore of the utmost importance that States parties report on all legal and practical restrictions on the right to leave which they apply both to nationals and to foreigners, in order to enable the Committee to assess the conformity of these rules and practices with article 12, paragraph 3 [which defines permissible limitations on this right]. States parties should also include information in their reports on measures that impose sanctions on international carriers which bring to their territory persons without required documents, where those measures affect the right to leave another country.203

The case for finding a breach of Art. 12 would seem particularly strong where the visa requirement which the state of origin allows to be enforced in areas under its jurisdiction is intended explicitly to avoid the departure of at-risk persons. There is more generally a real question about the legitimacy of even visas set to regulate non-coerced migration, but which are known in practice also to preclude the freedom of movement of would-be refugees, for example generic rules said to be necessary to avoid smuggling or trafficking.204 203

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UN Human Rights Committee, “General Comment No. 27: Freedom of Movement” (1999), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [10]. “International law requires states to prosecute and punish transnational and other organized criminals who engage in human smuggling, that is the procurement of unauthorized entry of a person into another state for a financial or other material benefit. The deterrence of human smuggling may not, however, be invoked to justify a restriction on the right of persons seeking to leave any country. This is because the avoidance of breach of another state’s migration laws or policies does not fall within the scope of the public order (ordre public) exception authorized by ICCPR Art. 12(3), which speaks to an interest of the state invoking the restriction rather than to an interest of another state. International law also requires states to combat human trafficking. In contrast to smuggling, human trafficking is by definition an exploitative practice that harms individuals under the departure state’s jurisdiction. It may thus prima facie engage an interest under ICCPR Art. 12(3). But because the right of everyone to leave a country may only be lawfully restricted if that is the least intrusive means available to pursue even a clearly legitimate interest, state efforts must focus on interrupting the work of traffickers rather than on seeking to stop the departure of would-be refugees and others. This approach aligns with Art. 14 of the UN Trafficking Protocol, requiring anti-trafficking commitments to be pursued in a manner that ensures respect for refugee and other international human rights”: “The Michigan Guidelines on Refugee Freedom of Movement,” (2017) 39 Michigan Journal of International Law 1, at [7]–[8].

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In contrast, finding a breach of Art. 12(2) of the Covenant by the destination country actually imposing the visa – for example, Lebanon’s visa on Syrians seeking to escape their country205 – may be more difficult. This is because, in contrast to situations in which that country actually operates an in-country interdiction scheme, it is not clear that the state that establishes the visa controls is in any sense exercising (even shared) jurisdiction over the place of departure – jurisdiction being the sine qua non for holding states liable for the extraterritorial actions of their agents.206 The International Court of Justice has affirmed that “the International Covenant on Civil and Political Rights is applicable in respect of acts done by a State in the exercise of its jurisdiction outside its own territory”:207 The travaux préparatoires of the Covenant confirm the [UN Human Rights] Committee’s interpretation of Article 2 of that instrument. These show that, in adopting the wording chosen, the drafters of the Covenant did not intend to allow States to escape from their obligations when they exercise jurisdiction outside their national territory. They only intended to prevent persons residing abroad from asserting, vis-à-vis their State of origin, rights that do not fall within the competence of that State, but of that of the State of residence.208

In essence, liability for extraterritorial actions follows where a state party exercises “effective jurisdiction.”209 While this will be a question of fact in each case, it is far from clear that a state can be said to exercise jurisdiction by the simple issuance of policies intended to apply extraterritorially, but which are wholly implemented by third parties operating inside the sovereign territory of another state.210 The same jurisdictional concerns likely preclude a finding of 205 206

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See text at note 96. See e.g. Casariego v. Uruguay, HRC Comm. No. 56/1979, UN Doc. CCPR/C/OP/1 at 92, decided July 29, 1981, at [10.1]–[10.3]: “Article 2(1) of the Covenant places an obligation upon a state party to respect and to ensure rights ‘to all individuals within its territory and subject to its jurisdiction,’ but it does not imply that the state party concerned cannot be held accountable for violation of rights under the Covenant which its agents commit upon the territory of another state, whether with the acquiescence of the government of that state or in opposition to it . . . [I]t would be unconscionable to so interpret the responsibility under Article 2 of the Covenant, as to permit a state party to perpetrate violations of the Covenant on the territory of another state, which violations it could not perpetrate on its own territory.” Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, [2004] ICJ Rep 136, decided July 9, 2004, at [111]. Ibid. at [109]. Ibid. at [110]. The scope of modern understandings of jurisdiction – including that based on any of effective territorial control, being under a state’s authority and personal control, or subject to a state’s exercise of public powers abroad – is discussed in detail in Chapter 3.1.1. In Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ibid., for example, the analysis of the International Court of Justice seems to have given

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liability for visa controls set by a putative transit state – for example, the 2015 visas imposed by Ecuador on Cubans seeking to use Ecuador as a stepping stone to seeking protection in the United States.211 Because a transit state – like a country of destination – does not exercise jurisdiction over the would-be refugee who has yet to depart her home country, the condition precedent for invocation of Art. 12(2) is normally absent. If, however, there were evidence that the transit or destination state imposing a visa requirement thereby contributed significantly to an effort by the country of origin to stymie departure, emerging law suggests that those states could in some circumstances be held responsible for aiding or assisting the country of origin to breach its duty under Art. 12(2).212

4.1.2 Nature of the Duty of Non-refoulement The weakness of the duty of non-refoulement as an answer to measures that trap would-be refugees inside their own countries aside,213 Art. 33 is otherwise quite a robust form of protection.214 In particular, the duty of non-refoulement has ordinarily been understood to constrain not simply ejection from within a state’s territory, but also non-admittance at its frontiers.215 Indeed, the 1933

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real weight to the Israeli physical presence in the Occupied Territories. “The [Human Rights] Committee, in its concluding observations after examination of the report, expressed concern at Israel’s attitude and pointed ‘to the long-standing presence of Israel in [the occupied] territories, Israel’s ambiguous attitude towards their future status, as well as the exercise of effective jurisdiction by Israeli security forces therein’ (CCPR/C/ 79/Add.93, at [10]). In 2003 in face of Israel’s consistent position, to the effect that ‘the Covenant does not apply beyond its own territory, notably in the West Bank and Gaza . . .,’ the Committee reached the following conclusion: ‘in the current circumstances, the provisions of the Covenant apply to the benefit of the population of the Occupied Territories, for all conduct by the State party’s authorities or agents in those territories that affect the enjoyment of rights enshrined in the Covenant and fall within the ambit of State responsibility of Israel under the principles of public international law’ (CCPR/CO/ 78/ISR, at [11]). In conclusion, the Court considers that the International Covenant on Civil and Political Rights is applicable in respect of acts done by a State in the exercise of its jurisdiction outside its own territory”: ibid. at [110]–[111]. See text at note 96. The relevant legal arguments, drawing on Art. 16 of the International Law Commission’s Articles on State Responsibility, are outlined in detail below at notes 440–472. See Chapter 4.1.1. “This is a remarkable provision. Perhaps it is unprecedented in the history of our country’s enactments. It places the prohibition it enacts above any contrary provision . . . That is a powerful decree”: Alex Ruta v. Minister of Home Affairs, [2018] ZACC 52 (SA CC, Dec. 20, 2018), at [24]. See e.g. UNHCR Executive Committee Conclusion No. 6, “Non-refoulement” (1977), at [(c)], acknowledging “the fundamental importance of the observance of the principle of non-refoulement – both at the border and within the territory of a State.” “Today, there

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Convention – from which the present duty of non-refoulement was derived – explicitly codified non-admittance as an aspect of refoulement.216 This comprehensive definition corresponds to the authority enjoyed by police in some states summarily to remove aliens or to refuse them entry (refoulement) under a process distinct from formal expulsion (addressed by Art. 32217 of the Convention).218 It was clear to the drafters that summary refusals (refoulement) and formally sanctioned removals (expulsion or deportation) could equally undermine the sheltering of refugees from forcible return.219 The original purpose of the prohibition of refoulement was therefore to ensure that those states in which summary removal or denial of access was authorized by law not be allowed to rely on such provisions to subvert the general limitations on the expulsion of refugees.220 If the minority of countries that authorized refoulement were required to temper the application of such systems in relation to refugees, all governments would face comparable obligations: refugees would be able to access the state’s territory, and their removal

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appears to be ample support for the conclusion that Article 33(1) of the Refugee Convention is applicable to rejection at the frontier of a potential host state”: G. Noll et al., “Study on the Feasibility of Processing Asylum Claims Outside the EU Against the Background of the Common European Asylum System and the Goal of a Common Asylum Procedure” (2002), at 36. See generally P. Mathew, “Australian Refugee Protection in the Wake of the Tampa,” (2002) 96(3) American Journal of International Law 661 (Mathew, “Tampa”), at 667, drawing support for this proposition from the General Assembly’s Declaration on Territorial Asylum; and Lauterpacht and Bethlehem, “Non-refoulement,” at [76]–[86]. 1933 Refugee Convention, at Art. 3. 217 See Chapter 5.1. “[T]he term ‘expulsion’ was used when the refugee concerned had committed some criminal offence, whereas the term ‘refoulement’ was used in cases when the refugee was deported or refused admittance because his presence in the country was considered undesirable”: Statement of Mr. Cuvelier of Belgium, UN Doc. E/AC.32/SR.21, Feb. 2, 1950, at 5. See also Goodwin-Gill and McAdam, Refugee in International Law, at 201: “In the context of immigration control in continental Europe, refoulement is a term of art covering, in particular, summary reconduction to the frontier of those discovered to have entered illegally and summary refusal of admission to those without valid papers.” “The legal nature of the prohibited act is . . . not relevant, whether it is labeled deportation, extradition, non-admission at the border, maritime interception, transfer, or rendition”: Chetail, International Migration Law, at 187. “Sir Leslie Brass (United Kingdom) concluded from the discussion that the notion of refoulement could apply to (a) refugees seeking admission, (b) refugees illegally present in a country, and (c) refugees admitted temporarily or conditionally. Referring to the practice followed in his own country, Sir Leslie stated that refugees who had been allowed to enter the United Kingdom could be sent out of the country only by expulsion or deportation. There was no concept in these cases corresponding to that of refoulement . . . Mr. Ordonneau (France) considered that the inclusion in the draft convention of a reference to the concept of refoulement would not in any way interfere with the administrative practices of countries such as the United Kingdom, which did not employ it, but that its exclusion from the draft convention would place countries like France and Belgium in a very difficult position”: UN Doc. E/AC.32/SR.21, Feb. 2, 1950, at 5.

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could only be effected in accordance with the general rules governing the expulsion or deportation of refugees.221

4.1.2.1 Non-admittance In line with this general understanding, the debates of the Ad Hoc Committee on Statelessness and Related Problems show a clear commitment to the basic principle that peremptory non-admittance or ejection is normally impermissible. The United States vigorously argued that [w]hether it was a question of closing the frontier to a refugee who asked admittance, or of turning him back after he had crossed the frontier, or even of expelling him after he had been admitted to residence in the territory, the problem was more or less the same. Whatever the case might be, whether or not the refugee was in a regular position, he must not be turned back to a country where his life or freedom could be threatened.222

While the English translation of non-refoulement varied from “undertakes not to turn back” to “undertakes not to expel or turn back,”223 and ultimately to “undertakes not to expel or return,” the intention to proscribe both nonadmittance and ejection from within a state’s territory was constant.224 Indeed, the Belgian co-sponsor of the text adopted by the Committee emphasized that the duty had been expanded to an undertaking “not to expel or in any way [return] refugees [emphasis added]”225 precisely to ensure that it was understood that the article “referred to various methods by which refugees could be expelled, refused admittance or removed.”226 As observed by the High Court of Kenya, 221

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“The Chairman suspended the discussion, observing that it had indicated agreement on the principle that refugees fleeing from persecution . . . should not be pushed back to the arms of their persecutors”: Statement of Mr. Chance of Canada, ibid. at 7. See generally Chapter 5.1 on the question of the prohibition of formal expulsion or deportation of refugees. Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.20, Feb. 1, 1950, at 11–12. See also Statement of Mr. Robinson of Israel, ibid. at 12–13: “The article must, in fact, apply to all refugees, whether or not they were admitted to residence; it must deal with both expulsion and non-admittance.” Ibid. at 12. The substitution of “return” for “turn back” was intended to be a matter of style only: Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.22, Feb. 2, 1950, at 20. UN Doc. E/AC.32/L.25, Feb. 2, 1950, at 1. In the draft convention finalized by the Working Group, the undertaking was rephrased to require states not to “expel or return, in any manner whatsoever, a refugee to the frontiers of territories where his life or freedom would be threatened [emphasis added]”: UN Doc. E/AC.32/L.32, Feb. 9, 1950, at 12. Statement of Mr. Cuvelier of Belgium, UN Doc. E/AC.32/SR.22, Feb. 2, 1950, at 20. Thus, “[i]f a refugee arrives directly from the country of persecution it does not make any difference whether he or she is ejected at the land border of a country adjacent to the country of persecution, sent there by plane from the airport after arrival, or sent back after

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The prohibition of refoulement to a danger of persecution under international refugee law is applicable to any form of forcible removal, including deportation, expulsion, extradition, informal transfer or “renditions,” and non-admission at the border . . . This is evident from the wording of Article 33(1) . . . which refers to expulsion or return (refoulement) “in any manner whatsoever.”227

The European Court of Human Rights has similarly noted that “[i]t is crucial to observe . . . that the prohibition of refoulement includes the protection of asylum-seekers in cases of both non-admission and rejection at the border.”228 As such, the duty of non-refoulement is infringed by the actions of government officials which are intended to force refugees back to their country of origin. This includes formal policies authorizing force to deny entry to refugees, such as the Namibian policy of shooting at Angolan refugees seeking to enter its territory.229 Even if not part of a formal policy, a government is moreover responsible for actions taken by its agents at the border, including for example the attacks on Syrian refugees by Turkish border guards,230 the shots fired at African refugees by Egyptian security forces,231 and the launching of smoke canisters and rubber bullets at refugees swimming toward Spain’s Ceuta enclave by the Spanish Guardia Civil.232 Indeed, the same is true when a state encourages private citizens to drive refugees away, as was the case when Hungary conscripted “border hunters” to threaten refugees arriving at its frontiers.233 While less immediately deadly, the decisions by Zaïre and Tanzania to close their borders to refugees fleeing conflicts between Hutus and Tutsis;234 the more recent decisions of Nicaragua, Costa Rica, and Panama to close their borders to Cubans seeking to travel in search of protection in the United States;235 as well as the Macedonian, Serbian, Croatian, and Slovenian border closures in order to shut down the “Balkan route” to asylum,236 all engage the

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admission to the territory and subsequent expulsion or removal. In each of these cases, the result is the same: the refugee will be sent back to the country of persecution and thus returned ‘to the frontiers’ of such country”: Kälin, “Article 33, para. 1,” at 1367. Kenya National Commission on Human Rights v. Attorney General, Constitutional Petition No. 227 of 2016 (Ken. HC, Feb. 9, 2017), at 18. ND and NT v. Spain, Dec. Nos. 8675/15 and 8697/15 (ECtHR, Feb. 13, 2020), at [178]. See text at note 25. 230 See text at note 26. 231 See text at note 27. See text at note 28. Speaking more generally to practices at this Spanish enclave, the European Court of Human Rights insisted that “[w]ith regard to Contracting States like Spain whose borders coincide, at least partly, with external borders of the Schengen area, the effectiveness of Convention rights requires that these States make available genuine and effective access to means of legal entry, in particular border procedures for those who have arrived at the border”: ND and NT v. Spain, Dec. Nos. 8675/15 and 8697/15 (ECtHR, Feb. 13, 2020), at [209]. See text at note 73. 234 See text at note 11. 235 See text at notes 18–20. See text at note 21.

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prohibition of refoulement. Efforts short of complete border closures that have the same effect – for example, the erection by South Africa237 and Hungary238 of razor-wire fences – can also run up against the requirements of Art. 33. In all of these cases, [a] good faith understanding of the duty of non-refoulement requires states to provide reasonable access and opportunity for a protection claim to be made. While the mere existence of a natural barrier (e.g. a mountain range or river) does not in and of itself amount to an act of refoulement, a state may not lawfully construct or maintain a man-made barrier that fails to provide for reasonable access to its territory by refugees.239

In short, because the duty of non-refoulement requires states to refrain from turning back refugees “in any manner whatsoever,” it is the consequence of exposing a refugee to the risk of being persecuted that matters – not how a state’s actions give rise to that prohibited risk. On the other hand, the actions undertaken must in fact pose the risk of return to persecution in order to fall afoul of Art. 33. As such, the erection of the Calais barrier between the UK and France,240 which simply compels refugees to have their claims assessed in France or elsewhere in Europe, was not an act of refoulement.241

4.1.2.2 Ejection While efforts to push refugees back at the frontier are perhaps the more common variant of refoulement, states today continue to expel refugees already inside their borders. The forced return of recognized Uzbek refugees from both Kyrgyzstan242 and Ukraine,243 the luring of refugees into trucks that took them back to Rwanda,244 the 2009 “rapid expulsion” of Rwandan refugees by Burundi without any assessment of protection needs,245 and the busing by Algeria of subSaharan refugee claimants across its southern border246 are blatant examples of refoulement by way of ejection. And while the risk was less immediate, the towing of a boat with refugees aboard by Australia back from its territorial waters to Indonesia, knowing that Indonesia has no mechanism to identify or protect refugees,247 was simply an indirect means of engaging in the same prohibited conduct. The fact that an increasing number of such ejections results from the application of pressure by the refugees’ country of origin – in particular, by China in 237 239

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See text at note 22. 238 See text at note 23. “The Michigan Guidelines on Refugee Freedom of Movement,” (2017) 39 Michigan Journal of International Law 1, at [10]. See text at note 24. The fact that many unaccompanied minor refugees seeking reunification with family members in the United Kingdom were present in the Calais “jungle” raises a distinct legal concern: see Chapter 4.6. See text at note 53. 243 See text at note 54. 244 See text at note 55. See text at note 62. 246 See text at note 68. 247 See text at note 56.

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relation to Tibetan and Uighur refugees,248 but also Tajik abuse of extradition procedures in order to secure the return of activists who had sought protection in Russia, Moldova, and Belarus249 – makes the reality of risk especially clear. Nor is a government insulated from liability when, rather than taking action through its own officials, it engages or encourages non-state actors to drive refugees back to their countries of origin. Sometimes such private actions are merely accessories to traditional migration enforcement systems abridging the duty of non-refoulement – as was the case, for example, when Malaysia deputized a volunteer corps to apprehend undocumented persons, including refugees,250 or when Greek police handed Turkish asylum-seekers over to armed men who violently removed them to the Turkish side of the border.251 In other instances, however, the non-state actors are themselves the direct enforcers. Because governments are liable for the actions they promote and support, Art. 33 was clearly infringed when Thailand encouraged fishermen to push back Vietnamese refugees,252 and when Guinean President Conté encouraged his citizens to form militia groups to force refugees from Liberia and Sierra Leone to go home.253 Indeed, as the Supreme Court of India has affirmed, governments have an affirmative duty to take such action as is necessary to avoid the refoulement of refugees instigated and carried out by third parties. Faced with a complaint that Chakma refugees were being subjected to an economic blockade by a student vigilante group intended to drive them out, the Court issued an unambiguous and comprehensive order to both state and national authorities to take whatever action was required to bring the student actions to an end.254

4.1.2.3 “Voluntary Repatriation” Nor is it the case that an act amounts to refoulement only if it is clearly designed to block the arrival, or to bring about the return, of refugees. Refoulement may also be effected by a very wide range of actions taken which indirectly achieve 248 251 254

See text at note 59. 249 See text at note 58. 250 See text at note 72. See text at note 57. 252 See text at note 69. 253 See text at notes 70–71. While India is not a party to the Refugee Convention or Protocol, the Court relied on Art. 21 of the Indian Constitution which establishes a guarantee of life and personal liberty for all. Its order was that “the State of Arunachal Pradesh shall ensure that the life and personal liberty of each and every Chakma residing within the State shall be protected and any attempt to forcibly evict or drive them out of the State by organised groups, such as the [student vigilante group], shall be repelled, if necessary by requisitioning the service of paramilitary or police force, and if additional forces are considered necessary to carry out this direction, the [State] will request the . . . Union of India to provide such additional force, and [the national government] shall provide such additional force as is necessary to protect the lives and liberty of the Chakmas”: National Human Rights Commission v. State of Arunachal Pradesh, (1996) 83 AIR 1234 (In. SC, Jan. 9, 1996), at [21].

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the same prohibited results. This is because the duty under Art. 33 is to avoid certain consequences (namely, return to the risk of being persecuted), whatever the nature of the actions that lead to that result.255 For example, the Hong Kong High Court has observed that denial to refugees of the right to work “if carried out to extreme and without meaningful exception . . . could even amount to constructive refoulement.”256 Of particular concern, refoulement frequently arises in practice when refugees are coerced to accept “voluntary repatriation.”257 At least where refugees are left with no real option but to leave, de facto enforced departure is a form of refoulement. As such, Egypt engaged in blatant refoulement when its prisoner guards beat refugees in their custody to “persuade” them to agree to be “voluntarily” repatriated to Eritrea.258 More commonly, states “promote” repatriation by denying the necessities of life to refugees, effectively starving them out – as was the case when Rwanda threatened to withdraw camp services from Congolese refugees who failed to “choose” to repatriate,259 when Macedonia cut off basic sanitary facilities and services to induce Kosovar refugees to go home,260 and when Bangladesh in collaboration with the UNHCR cut off food and medical services to Rohingya refugees – often accompanied by threats of beatings or jail time – until they “agreed” to go back to Burma.261 Neither the indirectness of the removals consequent to such deprivations of core rights nor the too-frequent acquiescence of the UNHCR or other international agencies in such programs alters the fundamentally involuntary nature of much so-called “voluntary” repatriation, making it the most common ejection-based form of refugee refoulement. As courts in the United States held in enjoining American threats and subterfuge undertaken to force Salvadoran refugees to go home, the formal and legalized nature of acts which are in substance coercive does not in any sense render them lawful.262 255

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See R v. Secretary of State for the Home Department, ex parte Yogathas, [2002] UKHL 36 (UK HL, Oct. 17, 2002), per Lord Hope at [47]. Thus, for example, the right of a state to effect the extradition of a refugee is subject to compliance with the duty of nonrefoulement: Lauterpacht and Bethlehem, “Non-refoulement,” at [71]–[75]. MA v. Director of Immigration, Dec. No. HCAL 10/2010, Constitutional and Administrative Law List No. 73 of 2010 (HK HC, Jan. 6, 2011), at [82]. See generally P. Mathew, Reworking the Relationship between Asylum and Employment (2012). This term of art, derived from Art. 8(c) of the Statute of the UNHCR (GA Res. 428(V), Dec. 14, 1950), is not a basis for the cessation of refugee status, but only a constraint on the actions which the UN refugee agency may itself undertake: see Chapter 7.2 and Hathaway and Foster, Refugee Status, at 472 ff. Sadly, the frequent conflation of the agency’s mandate with state responsibilities under the Refugee Convention has created a space within which protection is in practice withdrawn for reasons not authorized by the Convention: ibid. See text at note 89. 259 See text at note 84. 260 See text at note 85. See text at note 86. In Orantes-Hernandez v. Meese, (1988) 685 F. Supp. 1488 (US DCCa, Apr. 29, 1988), affirmed as Orantes-Hernandez v. Thornburgh, (1990) 919 F. 2d 549 (US CA9, Nov. 29, 1990), the Immigration and Naturalization Service was found to have engaged in a

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On the other hand, the UNHCR and Pakistan were not acting contrary to Art. 33 when they offered Afghan families the option to leave protection in Pakistan in exchange for a $400 cash payment.263 Despite the resemblance to blackmail, the voluntariness of return consequent to such an offer of compensation was only clearly compromised when Pakistan followed up on the offer by closing Afghan schools and restricting the renewal of identity documents264 – thereby effectively leaving many refugees with no real choice but to repatriate. The Australian offer of $A10,000 to Rohingya, Somali, and Sudanese refugees detained on Manus Island who were “willing” to go home265 was similarly compromised; not only had those refugees been denied any meaningful protection option, but the offer of financial support was accompanied by a threat from the government of Papua New Guinea that action would be taken to drive out those who refused to cooperate.266 As such, what might at first glance appear to have been simply a (lawful) incentive was tainted by being part of an overall plan that left refugees with no meaningful choice about whether to remain or go home – thereby constituting a component of a plan of orchestrated refoulement.

4.1.2.4 Failure to Identify Refugees Art. 33 may be infringed not only by fairly blunt measures of the kind considered to this point, but also by “any measure, whether judicial or administrative, which secures the departure of an alien.”267 In particular, the duty of non-refoulement can be infringed by the refusal to consider a claim to refugee status, knowing that such a refusal leaves the refugee exposed to removal on general immigration grounds.268 States sometimes simply refuse to assess refugee status, as was the case for pro-democracy Chinese dissidents barred from assessment procedures in Japan,269 for Indonesians arrested and

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persistent pattern of illegal conduct and enjoined from further harassment of Salvadoran refugees. See text at note 90. 264 See text at notes 87–88. 265 See text at note 91. See text at note 91. G. Goodwin-Gill, The Refugee in International Law (1996), at 122, adopted in Re S, [2002] EWCA Civ 843 (Eng. CA, May 28, 2002). The same language is contained in Goodwin-Gill and McAdam, Refugee in International Law, at 206. See e.g. UNHCR Executive Committee Conclusion No. 6, “Non-refoulement” (1977), at [(c)]: “The Executive Committee . . . [r]eaffirms the fundamental importance of the observance of the principle of non-refoulement . . . of persons who may be subjected to persecution if returned to their country of origin irrespective of whether or not they have been formally recognized as refugees.” See also UNHCR Executive Committee Conclusions Nos. 79, “General Conclusion on International Protection” (1996), at [(j)], and 81, “General Conclusion on International Protection” (1997), at [(i)], ibid., insisting that the duty of non-refoulement inheres “whether or not they have been formally granted refugee status.” The notion that access to Art. 33 could be limited to persons formally recognized as refugees has been described simply as “devoid of merit”: Lauterpacht and Bethlehem, “Non-refoulement,” at [89]. See text at note 74.

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deported by Malaysian police while waiting to make refugee status appointments at the office of the UNHCR,270 and for Somalis sent home by Saudi Arabia with no consideration of their claims to refugee status.271 A risk of refoulement also arises where, as in the United States272 and South Africa,273 responsibility to identify refugees is entrusted to officials such as border guards or detention center officers who do not reliably carry out those responsibilities. Nor can states avoid the risk of refoulement by reclassifying persons who are in fact refugees without individuated assessment on the merits, as Spain has attempted to do by labeling of persons arriving at Ceuta and Melilla as “economic migrants” with no right to lodge a protection request,274 as Israel does by branding Eritrean and Sudanese refugees as “infiltrators” with only a truncated ability to access protection,275 or under the Chinese policy of classifying all North Korean refugees as “defectors” not entitled to protection.276 There is also no basis for a refusal to consider the independent refugee status of children on the grounds that children should be treated simply as wards of their parents.277 To the contrary, as the English Court of Appeal has observed, the duty to protect refugees – including children who are refugees – may well trump other considerations, including the enforcement of child custody orders.278 And while the failure to establish an appeal or review of a negative 270 273 276

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See text at note 75. 271 See text at note 77. 272 See text at note 79. See text at note 80. 274 See text at note 76. 275 See text at note 78. See text at note 61. In response to China’s refusal to address the refugee claims of North Koreans, the United States Senate passed a resolution in which it called upon China to make “genuine efforts to identify and protect the refugees among the North Korean migrants encountered by Chinese authorities, including providing the refugees with a reasonable opportunity to petition for asylum”: S. Con. Res. 114, 107th Congress (2002), at para. 1(A), cited in S. Murphy, “Contemporary Practice of the United States relating to International Law,” (2002) 96(3) American Journal of International Law 706. As Pobjoy observes, “[t]here has been a general reluctance amongst states to assess individually the protection claims of children, particularly where the child arrives as part of a family. This is despite the fact that as a matter of principle a child, irrespective of age, and irrespective of whether accompanied or unaccompanied, is entitled to have her claim for Convention refugee status adjudicated prior to removal”: J. Pobjoy, The Child in International Refugee Law (2017) (Pobjoy, Child in Refugee Law), at 52. “Having regard to the rule as to the paramountcy of the child’s interests . . . I would respectfully suppose that a family judge would at the very least pay very careful attention to any credible suggestion that a child might be persecuted if he were returned to his country of origin or habitual residence before making any order that such a return should be effected”: Re S, [2002] EWCA Civ 843 (Eng. CA, May 28, 2002). To similar effect, UNHCR is of the view that “[t]he child should not be refused entry or returned at the point of entry . . . As soon as a separated child is identified, a suitably qualified guardian or adviser should be appointed to assist him/her at all stages. Interviews should be carried out by specially trained personnel”: UNHCR, “Asylum Processes,” UN Doc. EC/GC/01/12, May 31, 2001 (UNHCR, “Asylum Processes”), at [46]. See generally Convention on the Rights of the Child, 1577 UNTS 3 (UNTS 27531), adopted Nov. 20, 1989, entered into force Sept. 2,

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refugee status determination does not necessarily infringe Art. 33, the fact that the duty of non-refoulement is binding right up to the actual moment of return279 requires that the system have the capacity to take account of new or previously unrecognized facts280 before return is effected.281 It was thus inappropriate for the United Kingdom to persist in the removal of refugee claimants from Zimbabwe, even as its own Foreign Office warned of emerging risks there.282 Most important, as the South African Constitutional Court has made clear, there must be a dependable mechanism to guard against removal until the appeal or review is considered:

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1990, at Art. 22(1): “States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights.” The duty of non-refoulement “continues so long as a refugee (defined by reference to a well-founded fear of being persecuted for a reason specified in the Convention) is in the United Kingdom. If a claim for asylum is made by a person, that is to say a claim that it would be contrary to the United Kingdom’s obligations for him to be removed from or required to leave the United Kingdom, that person cannot be removed from or required to leave the United Kingdom pending a decision on his claim, and, even if his asylum claim is refused, so long as an appeal is being pursued”: R (Senkoy) v. Secretary of State for the Home Department, [2001] EWCA Civ 328 (Eng. CA, Mar. 2, 2001), at [15]. “The obligation of the United Kingdom under the Convention is not to return a refugee . . . to a country where his life or freedom would be threatened for any reason specified in the Convention. That obligation remains binding until the moment of return . . . It would in my judgment undermine the beneficial object of the Convention and the measures giving effect to it in this country if the making of an unsuccessful application for asylum were to be treated as modifying the obligation of the United Kingdom or depriving a person of the right to make a fresh claim for asylum . . . Any other consideration would in my view be offensive to common sense. However rarely they may arise in practice, it is not hard to imagine cases in which an initial claim for asylum might be made on insubstantial, or even bogus, grounds, and be rightly rejected, but in which circumstances would arise or come to light showing a clear and serious threat of a kind recognised by the Convention . . . A scheme of legal protection which could not accommodate that possibility would in my view be seriously defective”: R v. Secretary of State for the Home Department, ex parte Onibiyo, [1996] QB 768 (Eng. QBD, Mar. 5, 1996), cited with approval in R v. Secretary of State for the Home Department, ex parte Nassir, The Times (Dec. 11, 1998) (Eng. CA, Nov. 23, 1998). Thus, it was determined that the duty of non-refoulement would be infringed if consideration were not given to new grounds of claim advanced after rejection of the original claim: Esnat Maureen Makumba v. Minister of Home Affairs, Dec. No. 6183/14 (SA HC, Dec. 3, 2014). In considering a change of rules pursuant to which persons assigned to the UK’s “fast track” system would be able to pursue an appeal from outside the country, the Court of Appeal noted that “[i]t is the prospect of removal that is [the refugees’] principal concern. If their fears are well-founded, the fact that they can appeal after they have been returned to the country where they fear persecution is scant consolation”: R (L) v. Secretary of State for the Home Department, [2003] EWCA Civ 25 (Eng. CA, Jan. 24, 2003), at [54]. See text at note 81.

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If the asylum seeker was returned, and if it was later determined in the judicial review that the asylum seeker had met the requirements for refugee status . . . the principle of non-refoulement would have been transgressed . . . It is cold comfort to say – between the exhaustion of internal remedies and the outcome of judicial review – [that] an asylum seeker may seek and obtain interim protection by means of an urgent application to court. Litigation being what it is, there is no guarantee that the approach to court will succeed; the urgent application may be dismissed on a technicality or any other legally cognisable basis. That would then expose the asylum seeker to the risk of return . . . That is a breach of the principle of non-refoulement.283

More generally, the risk of refoulement can arise from the simple inadequacy of assessment procedures. For example, the English Court of Appeal found a British expedited asylum procedure to set “time limits [that] are so tight as to make it impossible for there to be a fair hearing of appeals in a significant number of cases . . . The system is therefore structurally unfair and unjust”284 – raising, of course, the specter of the wrongful rejection of claims as “unfounded.” The evolving practice of contracting out status assessment to less well-resourced and relatively inexperienced third countries – as the United States did with Jamaica and the Turks and Caicos Islands during the 1990s,285 and as Australia has done with Nauru and Papua New Guinea286 – magnifies the risk of refoulement. Because such cooperation is designed to “prevent and deter access to statutory and judicial asylum safeguards in the country responsible,”287 foreign processing mechanisms often fail to ensure protection of the refugees’ acquired rights and at times result in their return to the country of origin.288

4.1.2.5 International Zones and Excision Art. 33 may also be breached when a state creates a legal ruse in order to avoid formal acknowledgment of the arrival of a refugee.289 Some states persist in 283

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Cishahayo Saidi v. Minister of Home Affairs, Dec. No. CCT 107/17 (SA CC, Apr. 24, 2018), at [25], [30]. Similarly, the Court of Justice of the European Union determined that the duty to provide an effective remedy required “automatic suspension of enforcement of the measure authorising [the refugee claimant’s] removal” while review of a negative decision in his case was sought from the Council of State: X v. Netherlands, Dec. No. C-175/17 (CJEU, Sept. 26, 2018), at [32]. Lord Chancellor v. Detention Action, [2015] EWCA Civ 840 (Eng. CA, July 29, 2015), at [45]; see also Refugee Council, “Accelerated Procedure: United Kingdom,” Asylum Information Database. See text at note 82. 286 See text at note 83. A. Francis, “Bringing Protection Home: Healing the Schism between International Obligations and National Safeguards Created by Extraterritorial Processing,” (2008) 20(2) International Journal of Refugee Law 273, at 275; see also ibid. at 280–281. Ibid. at 273. “As a matter of fact, anyone presenting themselves at a frontier post, port, or airport will already be within State territory and jurisdiction; for this reason, and the better to retain

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establishing so-called “international zones” in which they purport to be able to act without regard for their international legal duties – for example, in the transit area of Moscow’s Sheremetyevo Airport,290 or at the so-called “no man’s land” just inside Hungary’s border with Serbia.291 An even more poignant example is provided by Australia’s refusal to consider the refugee status of persons present in islands or other parts of its territory on the grounds that its domestic law deems that territory to have been “excised” or otherwise rendered outside Australian immigration jurisdiction. In truth, all such places – and indeed the state’s territorial sea – are clearly part of a state’s territory.292 No form of words, and no domestic law, can change that fact293 – as was affirmed by the European Court of Human Rights in the seminal Amuur decision.294 There is thus no international legal difference between opting not to consider the refugee status of persons present in “international zones” or “excised territory” and refusing to consider the refugee status of persons clearly acknowledged to be on the state’s territory. Where the refusal to process a refugee claim results, directly or indirectly, in the refugee’s removal to face the risk of being persecuted, Art. 33 has been contravened.

“Protection Elsewhere” (“First Country of Arrival” and “Safe Third Country”) Regimes Refoulement may also result from the application of “protection elsewhere”295 rules. These rules constrain the traditional prerogative of refugees to decide where they wish to seek protection,296 whatever the particular circumstances 4.1.2.6

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sovereign control, States have devised fictions to keep even the physically present alien technically, legally, unadmitted”: Goodwin-Gill and McAdam, Refugee in International Law, at 207. See text at note 129. 291 See text at note 128. 292 See Chapter 3.1.2. As noted by the House of Lords in the case of a refugee claimant bound for the United States but intercepted at London’s Heathrow Airport, it would be “artificial in the extreme to deny [the claimant] the protection to which she would have been entitled had she reached the United States just because she was detected at Heathrow before she boarded her flight to Washington. The situation is one where the United Kingdom, having asserted jurisdiction over her because she was present here, must assume responsibility for affording her the benefit of [refugee protection]”: R v. Asfaw, [2008] UKHL 31 (UK HL, May 21, 2008), at [58]. “The Court notes that even though the applicants were not in France within the meaning of the Ordinance of 2 November 1945, holding them in the international zone of ParisOrly Airport made them subject to French law. Despite its name, the international zone does not have extraterritorial status”: Amuur v. France, [1996] ECHR 25 (ECtHR, June 25, 1996), at [52]. This term originates in the “Michigan Guidelines on Protection Elsewhere,” (2007) 28 Michigan Journal of International Law 207. See e.g. UNHCR Executive Committee Conclusions Nos. 15, “Refugees Without an Asylum Country” (1979), and 58, “Problem of Refugees and Asylum-Seekers Who

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or preferences of the refugee. Under both the European Dublin Regulation and the Canada–US Memorandum of Understanding, for example, the “first country of arrival” for a given refugee assumes all responsibility for assessment of the claim and delivery of protection. Indeed, under so-called “safe third country” rules – a cousin of the “first country of arrival” notion – a refugee may be required to have his or her claim to refugee status assessed in a designated third country, even if the refugee has never passed through that state. The country to which removal is effected, and that country alone, is deemed responsible to evaluate the refugee claim and to provide protection as required. Interestingly, the risk inherent in such measures was explicitly considered by the drafters of the Convention. At the Conference of Plenipotentiaries, the Swedish representative introduced a proposal to frame the duty of nonrefoulement in a way that would “cover cases where refugees were expelled to a country where their life would not be directly threatened, but where they would be threatened by further expulsion to a country where they would be in danger.”297 A consensus evolved in opposition to the proposal, for two basic reasons. First, states rejected the Swedish initiative because they wanted to remain free to expel refugees to countries in which there was no danger of being persecuted,298 at least insofar as the state to which removal would be effected had adhered to the Convention.299 But second, they felt that the Swedish amendment was not necessary, since “if such expulsion presented a threat of subsequent forcible return to the country of origin, the life and liberty of the refugee in question were endangered” by the removal to the intermediate state – thus clearly abridging the duty of non-refoulement. The relevant issue was said to

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Move in an Irregular Manner from a Country in Which They Had Already Found Protection” (1989). Statement of Mr. Petren of Sweden, UN Doc. A/CONF.2/SR.16, July 11, 1951, at 4. Specifically, the proposal was that “[n]o Contracting States shall expel or return a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group, or political opinion, or where he would be exposed to the risk of being sent to a territory where his life or freedom would thereby be endangered [emphasis added]”: UN Doc. A/CONF.2/70, July 11, 1951. “It should, however, be pointed out that the paragraph was concerned with a special case, namely the expulsion or turning back into a territory where the refugee’s life or liberty was in danger. The general case was that of expulsion to any country other than that in which the refugee would be threatened”: Statement of Mr. Ordonneau of France, UN Doc. E/ AC.32/SR.20, Feb. 1, 1950, at 13. “The Swedish amendment did not state that it related to countries which did not grant the right of asylum. Such countries were not necessarily those in which persecution occurred. If the States in question were signatories to the Convention, the question would not arise, because refugees would not be returned to countries where they risked being persecuted”: Statement of Mr. Rochefort of France, UN Doc. A/CONF.2/SR.16, July 11, 1951, at 10.

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be the foreseeability of the ultimate consequences of the initial expulsion.300 This clear prohibition of indirect refoulement has been neatly explained by the House of Lords: Suppose it is well-known that country A, although a signatory to the Convention, regularly sends back to its totalitarian and oppressive neighbour, country B, those opponents of the regime in country B who are apprehended in country A following the escape across the border. Against that background, if a person arriving in [a state party] from country A sought asylum as a refugee from country B, assuming he could establish his well-founded fear of persecution there, it would, it seems to me, be as much a breach of Article 33 of the Convention to return him to country A as to country B. The one course would effect indirectly, the other directly, the prohibited result, i.e. his return “to the frontiers of territories where his life or freedom would be threatened.”301

Taking account of these understandings, application of the so-called “first country of arrival” or “safe third country” principles, while not anchored in the requirements of the Refugee Convention,302 is also not necessarily in breach of it.303 States declined to assume particularized responsibility for all who arrive at their borders, and insisted that they retain the liberty to send refugees onward to a country in which there is no threat of being persecuted.304 The position of the UNHCR on shared protection arrangements has been somewhat mercurial: initially insisting that “[t]he intentions of the asylum-seeker 300

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Statement of Mr. Larsen of Denmark, ibid. at 9–10. This is consistent with the concern of the French delegation to avoid the imposition of an unduly subjective duty on states: ibid. at 4. R v. Secretary of State for the Home Department, ex parte Bugdaycay, [1987] AC 514 (UK HL, Feb. 19, 1987), per Lord Bridge of Harwich at 532D. This approach has been affirmed in R v. Secretary of State for the Home Department, ex parte Yogathas, [2002] UKHL 36 (UK HL, Oct. 17, 2002). UNHCR, “Summary Conclusions on the Concept of ‘Effective Protection’ in the Context of Secondary Movements of Refugees and Asylum-Seekers,” Lisbon, Dec. 9–10, 2002, at [11]. As observed in the House of Lords, the Refugee Convention “did not lay down any rules as to which State ought to provide protection”: R v. Secretary of State for the Home Department, ex parte Yogathas, [2002] UKHL 36 (UK HL, Oct. 17, 2002), per Lord Hope at [22]. “Article 33(1) cannot . . . be read as precluding removal to a ‘safe’ third country, i.e. one in which there is no danger . . . The prohibition of refoulement applies only in respect of territories where the refugee or asylum-seeker would be at risk, not more generally. It does, however, require that a State proposing to remove a refugee or asylum-seeker undertake a proper assessment as to whether the third country concerned is indeed safe”: Lauterpacht and Bethlehem, “Non-refoulement,” at [116]. Importantly, courts have insisted on clear analysis of the safety of the destination state: NBMZ v. Minister for Immigration and Border Protection, [2014] FCAFC 38 (Aus. FFC, Apr. 9, 2014) (expressing concern with the government’s lax undertaking that it “will not necessarily remove a person . . . to the country in respect of which the non-refoulement obligation exists”: ibid. at [15], [136]).

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as regards the country in which he wishes to request asylum should as far as possible be taken into account,”305 and most specifically “that asylum should not be refused solely on the ground that it could be sought from another State”;306 softening its view over the years307 to include encouragement of governments to give “consideration . . . to the possibility of concluding other multilateral or bilateral Dublin-type agreements” on the grounds that “[s]uch agreements would serve to enhance predictability, and address concerns regarding unilateral returns”;308 and more recently, seeming to revert to its original position “that asylum-seekers and refugees should ordinarily be processed in the territory of the State where they arrive . . . The primary responsibility to provide protection rests with the State where asylum is sought.”309 Indeed, the agency has now helpfully made clear that in its view lawful transfers may only occur between states that are 305

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UNHCR Executive Committee Conclusion No. 15, “Refugees Without an Asylum Country” (1979), at [(h)(iii)]. Ibid. at [(h)(iv)]. See UNHCR Executive Committee Conclusion No. 58, “Problem of Refugees and AsylumSeekers Who Move in an Irregular Manner from a Country in Which They Have Already Found Protection” (1989), making an exception to the general right of refugees to choose where to seek protection where they have already found protection in some other state; UNHCR Executive Committee Conclusion No. 71, “General Conclusion on International Protection” (1993), acknowledging the value of designated states of protection where needed to avoid “refugee in orbit” situations; and, in particular, UNHCR Executive Committee Conclusion No. 74, “General Conclusion on International Protection” (1994), at [(p)], which “[a]cknowledges the value of regional harmonization of national policies to ensure that persons who are in need of international protection actually receive it.” UNHCR, “Asylum Processes,” at [18]. There is reason to believe, however, that there is a less-than-unanimous consensus favoring this shift. The conclusions of one of UNHCR’s Global Consultations expert roundtables, for example, posit that “[t]here is no obligation under international law for a person to seek international protection at the first effective opportunity. On the other hand, asylum-seekers and refugees do not have an unfettered right to choose the country that will determine their asylum claim in substance and provide asylum. Their intentions, however, ought to be taken into account”: UNHCR, “Summary Conclusions on the Concept of ‘Effective Protection’ in the Context of Secondary Movements of Refugees and Asylum-Seekers,” Dec. 10, 2002, at [11]. This Conclusion cites UNHCR Executive Committee Conclusion No. 15, in support; it makes no reference to UNHCR Executive Committee Conclusions Nos. 58, “Problem of Refugees and Asylum-Seekers Who Move in an Irregular Manner from a Country in Which They Have Already Found Protection” (1989); 71, “General Conclusion on International Protection” (1993); or 74, “General Conclusion on International Protection” (1994). UNHCR, “Guidance Note on bilateral and/or multilateral transfer arrangements of asylum-seekers,” May 2013. See also UNHCR Regional Representation Canberra, “Position paper: Bilateral and/or Multilateral Arrangements for Processing Claims for International Protection and Finding Durable Solutions for Refugees,” Apr. 20, 2016 (relating to the Southeast Asian region); and UNHCR, “Legal considerations on the return of asylum-seekers and refugees from Greece to Turkey as part of the EU–Turkey Cooperation in Tackling the Migration Crisis under the safe third country and first country of asylum concept,” Mar. 23, 2016.

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bound by relevant refugee and human rights instruments310 and which live up to their duties in practice, including scrupulous respect for the duty of nonrefoulement.311 As the focus of the most recent UNHCR advice suggests, the main concern with “first country of arrival” or “safe third country” rules is that the duty of non-refoulement set by Art. 33 can too easily be compromised by risks arising from the relatively mechanical way in which shared responsibility is sometimes implemented.312 While the risk is perhaps higher under the relatively fluid “safe third country” rules than under formalized responsibility-sharing partnerships relying on the “first country of arrival” principle, even the latter can present the threat of refoulement, as was made clear by the European Court of Human Rights: Nor can [a state] rely automatically . . . on the arrangement made in the Dublin Convention concerning attribution of responsibility between European countries for deciding asylum claims. Where states establish international organizations, or mutatis mutandis international agreements, to pursue cooperation in certain fields of activities, there may be implications for the protection of fundamental rights. It would be incompatible with the purpose and object of the Convention if contracting states were thereby absolved from their responsibility under the Convention . . . The Court notes the comments of the UNHCR that, while the Dublin Convention may pursue laudable objectives, its effectiveness may be undermined in practice by the differing approaches adopted by Contracting States to the scope of protection offered.313

Keenly aware of this risk, courts have taken the view that while governments may legitimately begin from the position that partner states will carry out their responsibilities in good faith,314 this prerogative is balanced against the duty of 310

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UNHCR, “Guidance Note on bilateral and/or multilateral transfer arrangements of asylum-seekers,” May 2013, at [3(iii)]. Ibid. at [3(vi)], [4]. See e.g. Giuffré, “Readmission Agreements”; and E. Guild, “Asylum and refugees in the EU: A practitioner’s view of developments,” European Information Service (Dec. 2000), at 215, cited with approval by Lord Hope in R v. Secretary of State for the Home Department, ex parte Yogathas, [2002] UKHL 36 (UK HL, Oct. 17, 2002). TI v. United Kingdom, [2000] INLR 211 (ECtHR, Mar. 7, 2000). See also R v. Secretary of State for the Home Department, ex parte Yogathas, [2002] UKHL 36 (UK HL, Oct. 17, 2002), per Lord Hutton, observing that the duty under Art. 33 to avoid the risk of indirect return to the risk of being persecuted “is applicable . . . notwithstanding that the person is removed from the United Kingdom to another country pursuant to the arrangements made in the Dublin Convention concerning the attribution of responsibility between European countries for deciding asylum claims.” Indeed, the Court of Justice of the European Union initially took the view that only “systemic flaws” in a partner state’s system would justify failure to assign refugees on the basis of first country of arrival rules: NS v. Secretary of State for the Home Department, Dec. Nos. C-411/10 and C-493/10 (CJEU, Dec. 21, 2011); affirmed in Shamso Abdullahi v.

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the sending state to refuse removal where there is a real risk that the partner state will not grant protection where warranted.315 First and most fundamentally, courts have insisted that there be a clear ability lawfully to enter and remain in the partner or other designated state while the claim to protection is assessed,316 not just “a practical capacity to

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Austria, Dec. No. C-394/12 (CJEU, Dec. 10, 2013), at [60]. The Supreme Court of the United Kingdom, however, expressed concern about this approach, noting that “[t]he presumption [of partner state respect for refugee rights] should not operate to stifle the presentation and consideration of evidence . . . [regarding] the consequences of enforced return. Nor should it be required that, in order to rebut it, it must be shown, as a first and indispensable requirement, that there is a systemic deficiency in the procedure and reception conditions provided for the asylum seeker”: R (EM, Eritrea) v. Secretary of State for the Home Department, [2014] UKSC 12 (UK SC, Feb. 19, 2014), at [41]. The European Court of Human Rights was similarly disinclined to adopt the “systemic deficiency” threshold, insisting instead on an analysis of particularized risks: Tarakhel v. Switzerland, (2015) 60 EHRR 28 (ECtHR [GC], Nov. 4, 2014). The Court of Justice seems now to have taken this concern onboard, determining more recently that “[t]he . . . argument that . . . only the existence of systemic flaws in the Member State responsible is capable of affecting the obligation to transfer an asylum seeker to that Member State is unfounded”: CK v. Slovenia, Dec. No. C-578/16 PPU (CJEU, Feb. 16, 2017), at [91]. While the analysis here is restricted to the duty of non-refoulement, courts have increasingly constrained removals on grounds of other rights violations that may occur in the destination state, and more generally on whether there can be an expectation of compliance with duties owed to refugees: see Hathaway and Foster, Refugee Status, at 39–49. Contrary to the approach adopted by the European Court of Human Rights in Hirsi Jamaa v. Italy, (2012) 55 EHRR 21 (ECtHR [GC], Feb. 23, 2012), at [211], it is not enough to have “assurances” from the government of the destination country that rights will be respected; the real facts on the ground must be considered. Thus, Costello correctly insists that “Italy was not entitled to rely on assurances from Libya . . . in the face of evidence from ‘reliable sources’ of ‘practices . . . manifestly contrary to the principles of the Convention’”: Costello, Human Rights of Migrants, at 263. This requirement may be satisfied “if the person has a legally enforceable right to enter that territory . . . Likewise, if the person in fact is permitted to enter, then the principle of international comity, whether or not actually infringed, is not material and could be taken to be waived at least once entry is permitted. When these matters are put together with Article 33, it can be concluded that Australia would have no protection obligations where the safe third country consents to admit the refugee, where the refugee has a legally enforceable right to enter the safe third country, or where as a matter of fact the safe third country . . . admits the refugee”: V872/00A v. Minister for Immigration and Multicultural Affairs, [2002] FCAFC 185 (Aus. FFC, June 18, 2002). But “the Tribunal must consider whether it is satisfied that the third country will permit entry so that the applicant will not be left at the border and denied admission. In deciding whether it is satisfied the Tribunal will take into account the important matters of international obligation and comity . . . as well as the significance of the decision to the individual whose life or liberty may be at risk. Where there is doubt, that doubt should be resolved in favour of the applicant”: ibid. For example, the court observed in Tharmalingam v. Minister for Immigration and Multicultural Affairs, Dec. No. BC9905456 (Aus. FFC, Aug. 26, 1999) that “the material in the present case does indicate that the appellant now faces a risk of refoulement to Sri Lanka because he can apparently no longer return to France as of right.”

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bring about a lawful permission to enter and reside legally in the relevant country.”317 The sending state moreover breaches Art. 33 if there is a real chance that the destination country will remove the refugee claimant to another state in which the risk of onward refoulement exists.318 In these circumstances, there can be no question of the first state avoiding responsibility for a breach of Art. 33 simply because it does not itself directly effect the removal to the place of risk: [F]or a country to return a refugee to a state from which he will then be returned by the government of that state to a territory where his life or freedom will be threatened will be as much a breach of Article 33 as if the first country had itself returned him there direct. This is the effect of Article 33.319

Indeed, as the Supreme Court of Canada has affirmed, At least where Canada’s participation is a necessary precondition for the deprivation, and where the deprivation is an entirely foreseeable consequence of Canada’s participation, the government does not avoid [responsibility] because the deprivation in question would be effected by someone else’s hand . . . [W]e cannot pretend that Canada is merely a passive participant.320

As such, when Kenya and the UNHCR forced refugees back to Uganda and Tanzania, knowing that Uganda would not assess their claims and that 317

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Minister for Immigration and Multicultural Affairs v. Applicant “C,” [2001] FCA 1332 (Aus. FFC, Sept. 18, 2001). In interpreting the language of Australian domestic legislation, the same court has more recently determined that a “liberty or privilege lawfully given” is sufficient, “albeit [a liberty or privilege] capable of withdrawal and not capable of enforcement”: Minister for Immigration and Border Protection v. SZUSU, [2016] FCAFC 50 (Aus. FFC, Mar. 31, 2016), at [12], [23]. While the Court is correct that the inquiry is fundamentally practical, the ability of an offer of entry to be withdrawn without any remedy surely calls for extraordinarily careful scrutiny of the real risk of such a withdrawal. As such, the Full Federal Court’s determination in this case that a mere announcement on a government website forecloses the need for any factual inquiry into the right of entry (ibid. at [38]) is not sound. To be preferred is the reasoning of North J. in MZZXS v. Minister for Immigration and Border Protection, [2015] FCA 1384 (Aus. FC, Dec. 4, 2015), at [14], requiring substantive scrutiny of the reality of the advertised right of entry. Indeed, the Court of Justice of the European Union has recently insisted that claimants may be sent to a non-EU “safe third country” only where authorities have affirmatively satisfied themselves that the duty of non-refoulement and other Refugee Convention duties will be respected there: LH v. Hungary, Dec. No. C-564/18 (CJEU, Mar. 19, 2020), at [37]. Kälin, “Article 33, para. 1,” at [155]. R v. Secretary of State for the Home Department, ex parte Adan and Aitseguer, [2001] 2 WLR 143 (UK HL, Dec. 19, 2000), per Lord Hobhouse. Suresh v. Canada, [2002] 1 SCR 3 (Can. SC, Jan. 11, 2002). While the focus of the court’s analysis here was the indirect breach of the domestic duty to guarantee fundamental justice, the analysis is helpful in understanding a broader range of indirect risks initiated by the sending away of an individual from a state’s territory.

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Tanzania was threatening to return them to their home country,321 they violated the duty of non-refoulement. Similarly, the decision of South African border guards summarily to force refugees back to “safe” neighboring states without any assessment of whether protection was truly available there322 amounted to the very sort of willful blindness that engages Art. 33 of the Convention. Equally clearly, the decision of European Union states to force refugees back to Turkey, knowing that refugees are returned from that country to Nigeria, Pakistan, and Syria,323 poses the risk of indirect refoulement of such refugees. Second, care must be taken to avert the risk of refoulement that would arise if there were reason to believe that the laws or practices of the partner state could not be relied upon accurately to recognize the refugee status of persons who are in fact Convention refugees. Thus, the House of Lords disallowed automatic reliance on the Dublin Convention’s “first country of arrival” rule to remove refugees fleeing non-state agents of persecution to France and Germany, reasoning that the understanding of the refugee definition then embraced in those two states (which at that time excluded such cases) did not meet the requirements of international law.324 While minor differences of interpretation were found not to give rise to the risk of indirect refoulement,325 state parties are bound – precisely in line with the intentions of the Convention’s drafters – to engage in a “rigorous examination” of the laws and practices of the proposed destination state, with “anxious scrutiny” of their duty of nonrefoulement.326 If it is known (or could reasonably become known) that the understanding of the Convention refugee definition in the “country of first arrival” or “safe third country” is deficient – in consequence of which there is a real chance of eventual refoulement – it follows that sending a refugee to that country is a breach of the duty to avoid the refoulement of a refugee “in any manner whatsoever.” The EU’s “super-safe third country” approach, which authorizes the turning away of refugee claimants to neighboring states based 321 324

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See text at notes 106–107. 322 See text at notes 108–109. 323 See text at note 112. “[T]he enquiry must be into the meaning of the Refugee Convention approached as an international instrument created by the agreement of contracting states as opposed to regulatory regimes established by national institutions. It is necessary to determine the autonomous meaning of the relevant treaty provision”: R v. Secretary of State for the Home Department, ex parte Adan and Aitseguer, [2001] 2 WLR 143 (UK HL, Dec. 19, 2000), per Lord Steyn. Lord Bingham noted that only “significant differences” of interpretation would make removal unlawful because of the importance of what he defined as “the humane objective of the Convention . . . to establish an orderly and internationally agreed regime for handling asylum applications”: R v. Secretary of State for the Home Department, ex parte Yogathas, [2002] UKHL 36 (UK HL, Oct. 17, 2002). Ibid., per Lord Hutton at [74]; and at [58], per Lord Hope, citing to the holding of Lord Bridge of Harwich in R v. Secretary of State for the Home Department, ex parte Bugdaycay, [1987] AC 514 (UK HL, Feb. 19, 1987).

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only on their having established an asylum procedure and acceded to relevant instruments (with no scrutiny of de facto compliance with relevant obligations)327 is an example of a system that is willfully blind to the risk of refoulement in the destination state. Nor may Canada lawfully force all refugees back to the United States under the Canada–US safe country agreement:328 because the peculiarities of American law result in only a subset of Convention refugees being granted protection against refoulement,329 there is a foreseeable risk of indirect refoulement from the United States for many refugees. Third, the risk of refoulement may arise not only from the risk of onward removal or substantive error in the assessment of refugee status, but rather because the procedures in the destination country are inadequate to identify and protect genuine refugees.330 In the seminal case on point, the European Court of Human Rights determined that Belgium could not return a person seeking recognition of refugee status to the overwhelmed and failing Greek asylum system since “[w]hen they apply the Dublin Regulation . . . [s]tates must make sure that the intermediary country’s asylum procedure affords sufficient guarantees to avoid an asylum seeker being removed, directly or indirectly, to his country of origin without any evaluation of the risks he faces.”331 In line with the result-oriented duty of non-refoulement, it is of course irrelevant whether the risk of removal to persecution arises from the threat of onward expulsion, material disagreement on the substance of refugee status, or the simple inability or unwillingness carefully to scrutinize asylum claims. In each case, the end result is the same: [T]he focus . . . is on the end result rather than the precise procedures by which the result was achieved. The question is whether the government of the third country “would not” send the person to another country or territory otherwise than in accordance with the Geneva Convention. The concern is essentially a practical one rather than one which is theoretical.332

As such, when the United States requires asylum applicants to have their claims assessed in El Salvador, Guatemala, or Honduras333and when Australia forces refugees into refugee status systems in Nauru and Papua and New Guinea despite knowledge of the inadequacy of the systems in those countries to 327 330

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329 See text at note 127. 328 See text at note 100. See Chapter 4.1.1, note 156. The Netherlands thus declined to transfer an Afghan refugee claimant to Hungary, noting that Hungary’s asylum procedure provided no remedy against negative first instance decisions, did not ensure legal assistance, lacked interpreters, and imposed inappropriately short deadlines: Rechtbank Den Haag AWB Dec. No. 15/2751 (Neth. DC, Oct. 16, 2015). MSS v. Belgium and Greece, (2011) 53 EHRR 28 (ECtHR, Jan. 21, 2011), at 342. R v. Secretary of State for the Home Department, ex parte Yogathas, [2002] UKHL 36 (UK HL, Oct. 17, 2002), per Lord Hope. See text at note 119.

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identify genuine refugees,334 they create the risk of refoulement and are thus liable for any such consequence. Indeed, the fact that Australia has at times explicitly defended its actions as designed to create an inhospitable climate that will deter refugees from arriving to seek protection335 is an extraordinary “smoking gun,” making clear that it is prepared to tolerate the risk of refoulement in order to achieve its preferred migration management goals.

4.1.2.7 “Safe Country of Origin” Rules In some cases, governments make blanket determinations of safety with regard to a particular country of origin without examination of individuated circumstances, limiting or denying access to the usual refugee assessment procedures to nationals of listed states.336 In principle, this approach conflicts with the individuated nature of the Convention refugee definition: even if nearly all persons from a given country cannot qualify for refugee status, this fact may not lawfully impede recognition of refugee status to the small minority who are in fact Convention refugees.337 For example, the decision of the United Kingdom to designate Pakistan as presumptively safe was characterized by a reviewing court as simply “irrational” in view of that country’s fundamental disfranchisement of its Ahmadi minority338 – leading, no doubt, to the UK’s recent shift to a more constrained approach in which the presumption of safety makes clear which minorities of a given nationality are not to be caught by the “safe country of origin” rule.339 An assessment of the legality of designating “safe countries of origin” therefore hinges on whether it can dependably ensure the protection of genuine refugees coming from those states. Most clearly, there can be no question of automatically refusing all claims from any country: an approach of this kind will inevitably force away at least some refugees.340 Nor is it an answer to this concern to suggest that only 334 336

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See text at notes 114–116. 335 See text at note 118. See generally M. Hunt, “The Safe Country of Origin Concept in European Asylum Law: Past, Present and Future,” (2014) 26(4) International Journal of Refugee Law 500 (Hunt, “Safe Country of Origin Concept”) and Costello, “Safe Country?.” NS v. Secretary of State for the Home Department, Dec. Nos. C-411/10 and C-493/10 (CJEU, Dec. 21, 2011), at [99]–[101]; CK v. Slovenia, Dec. No. C-578/16 PPU (CJEU, Feb. 16, 2017). R v. Secretary of State for the Home Department, ex parte Javed, [2001] EWCA Civ 789 (Eng. CA, May 17, 2001). See text at note 122. Given the greater logic of rules that exclude known at-risk subpopulations from safe country designations, the decision of the European Union to eliminate Art. 30(3) of the original Asylum Procedures Directive, Council Directive 2005/85/EC, OJ 2005 L326/13, which allowed states to designate partial and group-specific safe countries of origin, may have been a counterproductive move. UNHCR takes an equivocal position on the legality of designating whole countries of origin as presumptively safe, noting without comment that “[s]ome states have drawn up extensive lists of such countries, sometimes applying them as an automatic bar to access to

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countries which adhere to the Refugee Convention or other human rights instruments will be designated as “safe countries of origin.” Sadly, even countries considered democracies and defenders of human rights have generated – at some times, and in some circumstances – persons who are in fact Convention refugees.341 As UNHCR has made clear, account needs to be taken “not simply of international instruments ratified and relevant legislation enacted there, but also of the actual degree of respect for human rights and the rule of law, of the country’s record of not producing refugees, of its compliance with human rights instruments, and of its accessibility to national or international organizations for the purpose of verifying human rights issues.”342 It thus follows that the European Union’s effective bar on the reception of refugee claims from EU citizens343 – even as, for example, European citizens of Roma ethnicity are being recognized in other state parties as refugees344 – makes it impossible for member states to honor their duties under Art. 33. More commonly, however, designation of a country of origin as “safe” operates not as a bar on seeking protection as such, but rather as a procedural device which requires an applicant to establish his or her refugee status under an accelerated or otherwise truncated procedure, often with the requirement to rebut a presumption against recognition of refugee status.345 In a particularly

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the asylum procedures”: UNHCR, “Asylum Processes,” at [39]. More ominously, UNHCR refers to the need to give attention to individuated concerns as “best state practice,” rather than a clear duty: ibid. at [39]. Thus, in the context of advising on the Canadian “safe country of origin” rule, UNHCR did not condemn the proposal (since struck down in part by the Canadian Federal Court: See text at note 352), but simply called for designation to be based on “objective, reliable and up-to-date information and [to] be decided by a panel of experts” and for that designation to be amenable to challenge in court: UNHCR, “UNHCR Submission on Bill C-31: Protecting Canada’s Immigration System Act,” May 2012, at 12. For example, in Roszkowski v. Special Adjudicator, [2001] EWCA Civ 650 (Eng. CA, May 9, 2001), the court did not question the designation of Poland as a safe country of origin despite the fact that the Special Adjudicator had accepted that the Polish Roma applicants had not only experienced demands for money and beatings, but had been subjected to attacks by anti-Roma vigilantes on their apartment – including physical assaults – on three separate occasions. UNHCR, “Asylum Processes,” at [39]. 343 See notes 125–126. See C. Levine-Rasky, “Designating Safety, Denying Persecution: Implications for Roma Refugee Claimants in Canada,” (2017) 16 Journal of Immigrant and Refugee Studies 1. UNHCR offers some support for this approach, suggesting that “a proper designation of a country as a ‘safe country of origin’ does not, by that fact alone, serve as a declaration of cessation of refugee status in regard to refugees from that country. It should serve merely as a procedural tool to expedite processing of refugee claims”: UNHCR, “Note on the Cessation Clauses,” UN Doc. EC/47/SC/CRP.30 (1997) (UNHCR, “Cessation”), at [7]. The concern, though, is that while apparently just altering procedural norms, safe country of origin rules “seem to be fatal in practice. EASO reports that 90 per cent of asylum claims that are dealt with in accelerated procedures are rejected”: Costello, “Safe Country?,” at 609.

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helpful judgment, the English Court of Appeal insisted that such a procedure can be operated without breach of the duty of non-refoulement only if it delivers a “fair hearing,” including access to legal counsel.346 The procedure may begin from a presumption of safety in the country of origin, but must give “careful consideration to the facts of the individual case.”347 For example, it must be possible for an applicant to adduce expert medical evidence where relevant.348 Perhaps most critically, where it becomes clear that credibility is at the heart of the case, protection should not ordinarily be refused without access to a more traditional refugee status inquiry.349 The European Union’s rules, which insist the refugee claimants originating in a non-EU designated safe country be entitled to rebut a presumption of safety,350 thus seek to align state practice with these understandings. Yet even if procedural safeguards like those set by the European Union avert most risks of a breach of the duty of non-refoulement, there is surely still a principled objection to deeming whole countries to be “safe countries of origin.” Since the very point of such a designation is to deny rights to a group of refugee claimants based on their national origin rather than on the particularized merits of their claim to protection, the risk of prohibited stereotyping at the heart of the duty of non-discrimination is clearly real.351 Indeed, the Canadian Federal Court struck down a Canadian law denying appeal rights to persons from “designated countries of origin” (DCOs) on precisely that basis: The distinction drawn between the procedural advantage now accorded to non-DCO refugee claimants and the disadvantage suffered by DCO refugee claimants . . . is discriminatory on its face. It also serves to further marginalize, prejudice, and stereotype refugee claimants from DCO countries which are generally considered safe and “non-refugee producing.” Moreover, it 346

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R (L) v. Secretary of State for the Home Department, [2003] EWCA Civ 25 (Eng. CA, Jan. 24, 2003), at [30], [38]. Ibid. at [45]. 348 Ibid. at [49]. “Where an applicant’s case does turn on an issue of credibility, the fact that the interviewer does not believe the applicant will not, of itself, justify a finding that the claim is clearly unfounded. In many immigration cases, findings on credibility have been reversed on appeal. Only where the interviewing officer is satisfied that nobody could believe the applicant’s story will it be appropriate to certify the claim as clearly unfounded on the ground of lack of credibility alone”: ibid. at [60]. See text at notes 123–124. See Chapter 3.4. The risk that designation as a “safe country of origin” amounts to nationality-based discrimination is intensified where the criteria relied upon for designation do not accurately focus on the reality of risk for a Convention reason. Costello, for example, criticizes the EU proposal of 2015 for a common safe country of origin list that would have been based on a quantitative assessment of the country’s record before the European Court of Human Rights and whether the country was or was not a candidate for EU membership, rightly said to be “weak proxies for the actual human rights situation”: Costello, “Safe Country?,” at 611.

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perpetuates a stereotype that refugee claimants from DCO countries are somehow queue-jumpers or “bogus” claimants who only come here to take advantage of Canada’s refugee system and its generosity . . . This [rule] draws a clear and discriminatory distinction between refugee claimants from DCO-countries and those from non-DCO countries, by denying the former a right to appeal a decision of the RPD and allowing the latter to make such an appeal. This is a denial of substantive equality to claimants from DCO countries based upon the national origin of such claimants.352

As Costello poignantly observes, this judgment makes clear why “safe country of origin” rules are as unnecessary as they are ethically suspect: The finding [of the Canadian Federal Court] is startling in its clarity. There was no justification for disadvantaging claimants from particular countries. If there were weak or fraudulent asylum claims, adjudicators were assumed to be capable of doing their job and rejecting such claims. While evidence of weak claims could be used as a reason to accelerate administrative processes, it provided no basis for limited appeal rights.353

In sum, the duty of non-refoulement – because of its broad ambit and consequence-defined nature – is a powerful means of ensuring access to protection for at-risk persons able to reach the jurisdiction of a state party to the Convention. It prohibits non-admittance of refugees by way of force, border closures, or the erection of unresponsive barriers to access. It proscribes ejection from a state party’s territory, whether by formal policy, acquiescence, or the implementation of so-called “voluntary repatriation” arrangements which are in fact coercive. The duty of non-refoulement is engaged in the event of the removal of a refugee consequent to refusal to consider a claim or because of inadequate procedures, as well as by virtue of reliance on such legally fictitious notions as “international zones” or “excision.” And “protection elsewhere” rules – including so-called “first country of arrival” and “safe third country” rules that fail to ensure the right of a refugee to enter and remain in the designated partner state, or which otherwise create gaps in the ability of a refugee to secure recognition and protection, as well as “safe country of origin” designations that stigmatize all (or many) citizens of a given state as unworthy of the usual procedures for investigation of their refugee claims – may similarly result in the removal of genuine refugees, thus violating the duty not to return a refugee to the risk of being persecuted “in any manner whatsoever.” 352

353

YZ v. Canada, [2016] 1 FCR 575, 2015 FC 892 (Can. FC, July 23, 2015), at [124], [130]. The Belgian Court of Arbitration similarly ruled that the so-called “double 5%” rule relied upon by Belgium to devise its safe country of origin list was discriminatory: Hunt, “Safe Country of Origin Concept,” at 510, citing to Belgian Court of Arbitration Judgment 20/93 of Mar. 25, 1993, at 6392. Costello, “Safe Country?,” at 619.

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4.1.3 Extraterritorial Refoulement Analysis to this point has focused on the implications of the duty of nonrefoulement for refugees at a state’s borders or within its territory. Increasingly, however, states are inclined to take action in areas beyond their own territory (including beyond their territorial sea) with a view to forcing refugees back to their place of origin, or at least toward some other state. They seek to ensure that refugees never arrive,354 and hence cannot claim the protection to which they are in principle entitled. Because the deterrent measures are premised on denial to the refugee of any direct contact with the destination state, the question arises whether a state party that engages in arm’s-length actions that lead ultimately to refugees being forced back to their country of origin has breached the duty of non-refoulement.

4.1.3.1 Unilateral Extraterritorial Deterrence It is generally understood that measures undertaken by a state to prevent refugees from crossing its border are acts of refoulement. For example, the European Court of Human Rights was called upon to assess the legality of measures taken by Spain at the frontier of its African enclave in Melilla.355 Spain argued that the Malian and Ivorian nationals turned back in the maze between two six-meter high external barriers and a three-meter high internal barrier dividing Melilla from Morocco had not entered Spanish territory, and could therefore not be said to be under Spanish jurisdiction. The Court insisted that even if the asylum-seekers were not “in” Spain at the time of the pushbacks, Spain was nonetheless responsible for their rejection because the true lynchpin for liability – jurisdiction, not territory – was clearly established by its continuous control over the area in question.356 In taking this view,357 the Court drew upon the approach pioneered in its Grand Chamber ruling in Hirsi358 that Italy had jurisdiction over migrants turned back on the high seas: The Court observes that in the instant case the events took place entirely on board ships of the Italian armed forces, the crews of which were composed exclusively of Italian military personnel. In the Court’s opinion, in the period between boarding the ships of the Italian armed forces and 354

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See generally Hathaway, “Non-entrée.” Whereas refugee law is predicated on the duty of non-refoulement, the politics of non-entrée is based on a commitment to ensuring that refugees not be allowed to arrive. ND and NT v. Spain, Dec. Nos. 8675/15 and 8697/15 (ECtHR, Feb. 13, 2020). Ibid. at [49]–[51]. Much of the analysis that follows draws on Gammeltoft-Hansen and Hathaway, “Cooperative Deterrence.” Hirsi Jamaa v. Italy, (2012) 55 EHRR 21 (ECtHR [GC], Feb. 23, 2012). The same principle was recently affirmed in ND and NT v. Spain, Dec. Nos. 8675/15 and 8697/15 (ECtHR, Feb. 13, 2020), at [110].

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being handed over to the Libyan authorities, the applicants were under the continuous and exclusive de jure and de facto control of the Italian authorities.359

Given the lack of protection for refugees in Libya and the risk of persecution in the applicants’ countries of origin (Eritrea and Somalia), the Court found Italy in breach of its human rights obligations, including the duty of nonrefoulement.360 This holding aligns with the dominant understanding of jurisdiction, previously analyzed in detail.361 As the International Court of Justice itself has made clear, human rights obligations presumptively apply within any area under the effective control of a state party.362 An outlier position was, however, adopted by the majority of the Supreme Court of the United States in the decision of Sale v. Haitian Centers Council,363 a challenge to the American policy of interdicting Haitians in search of protection in international waters and returning them to Haiti.364 The Court observed that “the text and negotiating history of Article 33 . . . are both completely silent with respect to the Article’s possible application to actions taken by a country outside its own borders.”365 Moreover, it was noted that the original continental European understanding of refoulement – which spoke to rejections which occurred at, or from within, a state’s borders – was in line with the textual reference in Art. 33 to the duty to avoid “return,” said by the Court to denote “a defensive act of resistance or exclusion at a border rather than an act of transporting someone to [their home state, or some other country] . . . In the context of the Convention, to ‘return’ means to ‘repulse’ rather than to ‘reinstate.’”366 Indeed, it was determined by the Court that only a territorybased understanding would allow the primary duty set by Art. 33(1) to be read in consonance with the right of states under Art. 33(2) to deny protection against refoulement to persons who pose a danger to the security “of the 359 360 362

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Hirsi Jamaa v. Italy, (2012) 55 EHRR 21 (ECtHR [GC], Feb. 23, 2012), at [81]. Ibid. at [122]–[138], [146]–[158], [183]–[186]. 361 See Chapter 3.1.1 at note 58 ff. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, [2004] ICJ Rep 136, at [110]. Sale, Acting Commissioner, Immigration and Naturalization Service, et al., Petitioners v. Haitian Centers Council, Inc., et al., 509 US 155 (US SC, Jan. 12, 1993). The analysis here focuses on issues of international refugee law taken up by the Court. It has been observed, however, that the Court’s approach to relevant US law – in particular its finding that the statutory language was addressed only to the Attorney General, not to the President or the Coast Guard, and its invocation of the presumption against extraterritorial application of American law – was equally flawed. See S. Legomsky, “The USA and the Caribbean Interdiction Program,” (2006) 18(3–4) International Journal of Refugee Law 677 (Legomsky, “Caribbean Interdiction”), at 687–689. Sale, Acting Commissioner, Immigration and Naturalization Service, et al., Petitioners v. Haitian Centers Council, Inc., et al., 509 US 155 (US SC, Jan. 12, 1993), at 178. Ibid. at 182. Ironically, the Court reached this conclusion based on the difference between “return” and “exclude” as codified in US domestic law.

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country in which he is [emphasis added].” In the view of the American Supreme Court, reading Art. 33(1) to apply to extraterritorial deterrence “would create an absurd anomaly: dangerous aliens on the high seas would be entitled to the benefits of Art. 33(1) while those residing in the country that sought to expel them would not. It seems more reasonable to assume that the coverage of Art. 33(2) was limited to those already in the country because it was understood that Art. 33(1) obligated the signatory states only with respect to aliens within its territory.”367 Thus, the prohibition against refoulement was determined to accrue to the benefit only of persons “on the threshold of initial entry.”368 These arguments have little merit. Perhaps most spurious is the construction of Art. 33(1) based on the need for consistency with Art. 33(2). Since a refugee can be ejected under Art. 33(2) on national security grounds only where his or her presence or actions are shown to give rise to an objectively reasonable, real possibility of direct or indirect substantial harm to the host state’s most basic interests,369 it is difficult to conceive in practice of a situation in which a refugee not yet at or within a state’s territory could be subject to such exclusion. It is thus perfectly logical that this very limited prerogative to avoid the fundamental duty of non-refoulement would be textually constrained to situations in which a clear and critical risk could, in fact, arise.370 As Justice Blackmun noted in his dissenting opinion in Sale, “[t]he tautological observation that only a refugee already in a country can pose a danger to the country ‘in which he is’ proves nothing.”371 Second, the fact that the drafters assumed that refoulement was likely to occur at, or from within, a state’s borders – and therefore did not expressly proscribe extraterritorial acts which lead to a refugee’s return to be persecuted – simply reflects the empirical reality that when the Convention was drafted there was little evidence of countries seeking to deter refugees other than from within, or at, their own borders.372 As the American representative to the Ad Hoc 367 370

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Ibid. at 180. 368 Ibid. at 187. 369 See Chapter 4.1.4 at note 512 ff. “[I]n UNHCR’s opinion [the US Supreme Court’s] view is contradicted by the clear wording of Article 33(1) and 33(2), respectively, which address different concerns, as well as [by] the fact that the territorial scope of a number of other provisions of the 1951 Convention is made explicit”: UNHCR, “Advisory Opinion on the Extraterritorial Application of Non-refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol,” Jan. 26, 2007, at [28]. See also Hirsi Jamaa v. Italy, (2012) 55 EHRR 21 (ECtHR [GC], Feb. 23, 2012) (separate opinion of Judge Pinto de Albuquerque), at 68 (“The scope of application of a rule beneficial to refugees should not be limited by a territorial reference foreseen in the exception to the rule”). Sale, Acting Commissioner, Immigration and Naturalization Service, et al., Petitioners v. Haitian Centers Council, Inc., et al., 509 US 155 (US SC, Jan. 12, 1993), at 194. This is not to say, of course, that no such practices had occurred (see the discussion of the turning away of the St. Louis, described in Chapter 4.1 at note 9). Indeed, Ben-Nun’s analysis of the drafting history leads him to conclude “that in all probability, non-refoulement did

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Committee that prepared the Refugee Convention observed in the aftermath of the Sale decision, “[i]t is incredible that states that had agreed not to force any human being back into the hands of his/her oppressors intended to leave themselves – and each other – free to reach out beyond their territory to seize a refugee and to return him/her to the country from which he sought to escape.”373 There is simply no basis whatever to maintain that the drafters envisaged, let alone would have sanctioned, interdiction and return as practiced on the high seas by the United States. There was certainly no historical precedent of a policy of proactive deterrence, encompassing affirmative actions intended specifically to take jurisdiction over refugees (such as forcing them onto US ships and destroying their boats), without a concomitant assumption of responsibility. This leaves us with the Court’s fairly basic literal proposition374 that because a state cannot “expel or return” someone who has yet to arrive at its territory, the duty to avoid “return” speaks only to “a defensive act of resistance or exclusion at a border,” and not to the act of actually sending them home. Of all the Court’s arguments, this is perhaps the most disingenuous. Not only does the word “return” not have the plain meaning attributed to it,375 but a construction that excludes actions that would actually deliver a refugee back to his or her persecutors – rather than simply resisting or excluding them – is in fact the plainest and most obvious breach of the object and purpose of the duty conceived by the

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indeed apply to refugees on the high seas, which had been a well-known phenomenon since the late 1930s”: Ben-Nun, “British-Jewish Roots,” at 113. L. Henkin, “Notes from the President,” [1993] 5 American Society of International Law Newsletter 1. As the House of Lords has insisted, “[i]t is of course true that in construing any document the literal meaning of the words used must be the starting point. But the words must be construed in context, and an instrument such as the Refugee Convention must be given a purposive construction consistent with its humanitarian aims”: R v. Asfaw, [2008] UKHL 31 (UK HL, May 21, 2008), at [11]. This passage was more recently approved by the UK Supreme Court in SXH v. Crown Prosecution Service, [2017] UKSC 30 (UK SC, Apr. 11, 2017), at [7]. See generally Chapter 2.1. The primary definition of “return” is “[t]he act of coming back to or from a place, person, or condition”: The Oxford English Dictionary, 2nd ed. (1989), Vol. XXX, at 802; “come or go back to a place”: Concise Oxford English Dictionary, 12th ed. (2011), at 1230. Moreover, as UNHCR argued before the Supreme Court, “the definition of ‘refouler’ upon which the government relies to render the term ‘return’ ambiguous simultaneously renders it redundant. Under [the US government’s] reading, the phrase ‘expel or return’ is transformed into ‘expel or expel’”: UNHCR, “Brief as Amicus Curiae,” filed Dec. 21, 1992 in McNary v. Haitian Centers Council Inc., Case No. 92-344, at 10 (Sale v. Haitian Centers Council, 509 US 155 (US SC, June 21, 1993)), reprinted in (1994) 6(1) International Journal of Refugee Law 85. As Legomsky observes, “that argument assumes the treaty drafters meant to describe the prohibition [of refoulement] by using terminology unique to United States law – a highly unlikely premise”: Legomsky, “Caribbean Interdiction,” at 688.

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drafters: namely, to prohibit measures which would cause refugees to be “pushed back into the arms of their persecutors.”376 More generally, the US Supreme Court’s approach takes no account of the previously noted decision of the drafters to amend Art. 33 in order to stipulate that the duty of non-refoulement prohibits return to the risk of being persecuted “in any manner whatsoever,”377 said to “refer to various methods by which refugees could be expelled, refused admittance, or removed.”378 Much less does it give any consideration to the fact that the essential purpose of the Refugee Convention is to provide rights to seriously at-risk persons able to escape from their own countries – a goal that would clearly be undermined by an approach to Art. 33 which effectively authorized governments to deny them all rights by forcing them back home before the refugees reached a state party’s territory.379 Equally important is the policy concern expressed by the UNHCR in its amicus curiae brief filed in the Sale case: [The US government’s] interpretation of Article 33 . . . extinguishes the most basic right enshrined in the treaty – the right of non-return – for an entire class of refugees, those who have fled their own countries but have not yet entered the territory of another State. Under [the US government’s] reading, the availability of the most fundamental protection afforded refugees turns not on the refugee’s need for protection, but on his or her own ability to enter clandestinely the territory of another country.380 376

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Statement of the Chairman, Mr. Chance of Canada, UN Doc. E/AC.32/SR.21, Feb. 2, 1950, at 7. It is also an interpretation fundamentally at odds with the most central goal of the Refugee Convention itself, namely “to assure refugees the widest possible exercise of . . . fundamental rights and freedoms”: Refugee Convention, at Preamble, [2]. See Chapter 4.1.2, note 225. Statement of Mr. Cuvelier of Belgium, UN Doc. E/AC.32/SR.22, Feb. 2, 1950, at 20. See also UNHCR, “Advisory Opinion on the Extraterritorial Application of Non-refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol,” Jan. 26, 2007, at [29] (“[A]ny interpretation which construes the scope of Article 33(1) of the 1951 Convention as not extending to measures whereby a State, acting outside its territory, returns or otherwise transfers refugees to a country where they are at risk of persecution would be fundamentally inconsistent with the humanitarian object and purpose of the 1951 Convention and its 1967 Protocol”). The UNHCR adopts much the same understanding of the drafting history as described here: ibid. at [30]–[31]. See UNHCR, “Interception,” at [23]: “The principle of non-refoulement does not imply any geographical limitation. In UNHCR’s understanding, the resulting obligations extend to all government agents acting in an official capacity, within or outside national territory. Given the practice of States to intercept persons at great distance from their own territory, the international refugee protection regime would be rendered ineffective if States’ agents abroad were free to act at variance with obligations under international refugee law and human rights law.” UNHCR, “Brief as Amicus Curiae,” filed Dec. 21, 1992 in McNary v. Haitian Centers Council Inc., Case No. 92-344 (US SC), at 18, reprinted in (1994) 6(1) International Journal of Refugee Law 85. The US Supreme Court invoked arguments by both Robinson and

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Perhaps most fundamentally, the American Supreme Court’s analysis seems erroneously to assume that international rights can apply only in a state’s territory: no account whatever was taken of the fact that some Convention rights are explicitly not subject to a territorial or other level of attachment – including, of course, Art. 33’s duty of non-refoulement. As analyzed in detail above,381 under international law the duty of non-refoulement is owed to any refugee under the jurisdiction of a state party. A state party exercises jurisdiction and is thereby bound to respect the duty of non-refoulement if, inter alia, the refugees themselves are subject to that state party’s effective authority and control (whether lawfully or not), even if outside that state’s territory.382 There can be no doubt that interception and detention by officials aboard a United States military vessel in international waters easily qualifies as such an exercise of de facto jurisdiction. Much the same conclusion was reached by the English Court of Appeal. Noting that the Inter-American Commission on Human Rights383 was “fiercely critical of the majority decision of the Supreme Court,”384 the Court treated the Sale decision as “wrongly decided; it certainly offends one’s sense of fairness.”385 It concluded that “it is impermissible to return refugees from the high seas to their country of origin.”386 All in all, the textual and historical

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Grahl-Madsen in support of its conclusion that Art. 33 only applies once persons reach a state party’s territory. Yet both writers impliedly acknowledge the illogical policy implications of distinguishing between refugees located on either side of a border. Robinson commented that “if a refugee has succeeded in eluding the frontier guards, he is safe; if he has not, it is his hard luck”: N. Robinson, Convention relating to the Status of Refugees: Its History, Contents and Interpretation (1953) (Robinson, History), at 163. Grahl-Madsen posited the scenario of a refugee approaching a frontier post some distance inside the actual frontier, who may be refused permission to proceed farther inland, but must be allowed to stay in the bit of territory situated between the actual frontier line and the control post, because any other course of action would violate Art. 33: Grahl-Madsen, Commentary, at 229–230. See Chapter 3.1.1. “In view of the purposes and objects of human rights treaties, there is no a priori reason to limit a state’s obligation to respect human rights to its national territory. Where agents of the state, whether military or civilian, exercise power and authority (jurisdiction, or de facto jurisdiction) over persons outside national territory, the presumption should be that the state’s obligation to respect the pertinent human rights continues. That presumption could be rebutted only when the nature and content of a particular right or treaty language suggest otherwise”: T. Meron, “Extraterritoriality of Human Rights Treaties,” (1995) 89(1) American Journal of International Law 78, at 80–81. See Chapter 3.1.1 at note 58 ff. Haitian Centre for Human Rights et al. v. United States, Case No. 10.675, Report No. 51/96, IAComHR Doc. OEA/Ser.L/V/II.95 Doc. 7 rev., at 550 (IAComHR, Mar. 13, 1997). R (European Roma Rights Centre and Others) v. Immigration Officer at Prague Airport, [2003] EWCA Civ 666 (Eng. CA, May 20, 2003), at [34]. Ibid. R (European Roma Rights Centre and Others) v. Immigration Officer at Prague Airport, [2003] EWCA Civ 666 (Eng. CA, May 20, 2003), at [35].

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arguments for reading Art. 33 in the narrow way posited by the Supreme Court of the United States are simply not compelling. As Justice Blackmun concluded in his dissenting opinion in Sale, Today’s majority . . . decides that the forced repatriation of the Haitian refugees is perfectly legal because the word “return” does not mean return [and] because the opposite of “within the United States” is not outside the United States . . . The Convention . . . was enacted largely in response to the experience of Jewish refugees in Europe during the period of World War II. The tragic consequences of the world’s indifference at that time are well known. The resulting ban on refoulement, as broad as the humanitarian purpose that inspired it, is easily applicable here, the Court’s protestations of impotence and regret notwithstanding.387

There are, however, some judicial opinions that approve of the US Supreme Court’s approach. In the House of Lords Roma Rights Centre decision,388 Lord Hope made clear in obiter dicta that he did “not, with respect, think that the Sale case was wrongly decided . . . The majority recognised the moral weight of the argument that a nation should be prevented from repatriating refugees to their potential oppressors whether or not the refugees were within that nation’s borders . . . But in their opinion both the text and the negotiating history of article 33 affirmatively indicated that it was not intended to have extraterritorial effect.”389 Two judges of the High Court of Australia have also offered some support for the approach of the US Supreme Court.390 Yet as UNHCR correctly observes, the small 387

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Sale, Acting Commissioner, Immigration and Naturalization Service, et al., Petitioners v. Haitian Centers Council, Inc., et al., 509 US 155 (US SC, Jan. 12, 1993), at 207–208. R (European Roma Rights Centre) v. Immigration Officer at Prague Airport, [2005] 2 AC 1 (UK HL, Dec. 9, 2004). Ibid. at [68], per Lord Hope. See also the views of Lord Bingham, ibid. at [17]. Noting both the approach taken in Sale and Lord Hope’s remarks in Roma Rights, as well as some comparable remarks in two earlier Australian decisions (Minister for Immigration and Multicultural Affairs v. Haji Ibrahim, [2000] HCA 55 (Aus. HC, Oct. 26, 2000), at [136], per Gummow J.; Minister for Immigration and Multicultural Affairs v. Khawar, [2002] HCA 14 at [42], per McHugh and Gummow JJ.), Justice Keane found that “[j]udicial authority in Australia, the United Kingdom, and the United States of America suggests that a state’s obligations under the Convention arise only with respect to persons who are within that state’s territory”: CPCF v. Minister for Immigration and Border Protection, [2015] HCA 1 (Aus. HC, Jan. 28, 2015), at [461], per Keane J. Only somewhat more cautiously, Chief Justice French observed that “[t]he defendants argued that the nonrefoulement obligation under the Refugee Convention only applied to receiving states in respect of refugees within their territories. There is support for that view in some decisions of this court, the House of Lords and the Supreme Court of the United States”: ibid. at [10], per French C.J. The majority of the Court nonetheless seemed to assume that the duty of nonrefoulement does apply extraterritorially, but felt no need to grapple with that question given the duty under Australian domestic law to ensure “that it is safe for the person to be in that place” before disembarking a refugee claimant in a foreign jurisdiction: ibid. at [12].

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number of judicial opinions favoring the Sale approach are found in cases that were actually decided on the basis of domestic, rather than international, law.391 Moreover, after considering not only the US Supreme Court’s reasoning, but also the endorsements of that approach in some British and Australian jurisprudence, Judge Pinto de Albuquerque of the European Court of Human Rights concluded: With all due respect, the United States Supreme Court’s interpretation contradicts the literal and ordinary meaning of the language of Article 33 of the United Nations Convention relating to the Status of Refugees, and departs from the common rules of treaty interpretation . . . Unlike other provisions of the [Refugee Convention], the applicability of Article 33(1) does not depend on the presence of the refugee in the territory of a State . . . [T]he French term of refoulement includes the removal, transfer, rejection, or refusal of admission of a person. The deliberate insertion of the French word in the English version has no other possible meaning than to stress the linguistic equivalence between the verb return and the verb refouler. Furthermore, the preamble of the Convention states that it endeavors to “assure refugees the widest possible exercise of these fundamental rights and freedoms” and this purpose is reflected in the text of Article 33 itself through the clear expression “in any manner whatsoever” (de quelque manière que ce soit).392

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The joint decision of Justices Hayne and Bell noted that “Section 74 precluded taking him to [his country of origin, namely] Sri Lanka without asking at least whether he feared for his personal safety in that place . . . By acceding to the Refugee[] Convention, Australia has undertaken to other parties to the Convention obligations with respect to certain persons . . . It is unnecessary to decide whether these obligations are relevant to the construction of the [Australian] Act”: ibid. at [110]–[112]. Justice Crennan assumed the relevance of Refugee Convention obligations, but determined that “no such issues arose on the facts in the special case”: ibid. at [219]. Justice Kiefel similarly clearly acknowledged the non-refoulement obligation, but agreed that relevant inquiries were subsumed under the Australian “safety” inquiry: ibid. at [297]–[299]. Justice Gageler took the view that it was “uncontroversial” that “the exercise of maritime powers over persons on board a foreign vessel in the Australian contiguous zone is subject to international law” (ibid. at [383]), but was of the view that amendments to Australian law made that fact irrelevant for purposes of domestic adjudication: ibid. at [390]. “[I]t is important to stress that, at international law, the principle of non-refoulement . . . applies wherever and however a state exercises jurisdiction . . . UNHCR considers that there is only one superior court decision [citing to Sale in the US Supreme Court] that is at variance with this understanding and that decision . . . was based on an interpretation of national rather than international law.” UNHCR, “UNHCR Legal Position: Despite court ruling on Sri Lankans detained at sea, Australia bound by international obligations,” Feb. 4, 2015. This position paper was issued in response to the decision of the High Court of Australia in CPCF v. Minister for Immigration and Border Protection, [2015] HCA 1 (Aus. HC, Jan. 28, 2015), in which it was determined that detention at sea was permissible under Australian law subject to limitations involving, for example, safety. The Court did not, however, decide on the scope of Australia’s non-refoulement obligations, finding resolution of that issue unnecessary to decide the case before it. Hirsi Jamaa v. Italy, (2012) 55 EHRR 21 (ECtHR [GC], Feb. 23, 2012) (separate opinion of Judge Pinto de Albuquerque), at 67–68. As Goldenziel opines in her analysis of these cases,

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As such, the American interdiction and return of Haitians seeking protection,393 as well as more recent efforts by Indonesia, Thailand, and Malaysia to drive Rohingya refugees back to Burma,394 should be understood to have amounted to unlawful refoulement. Given the presumptive illegality of extraterritorial deterrence, it is increasingly common for states to justify efforts to turn back refugees on the high seas on the grounds that such action is necessary in order to deter refugees from risking their lives in the search for protection. This argument has been made by the United States in support of its interdiction and repatriation efforts in the Caribbean395 and most especially by Australia, which routinely refuses admission to any refugee arriving by sea.396 There is, of course, no doubt both that many asylum journeys are very risky,397 and that saving lives is an eminently noble goal. In addition, many countries have undertaken obligations to deter human trafficking and smuggling which arguably afford legitimate cause to intercept non-citizens in areas beyond their territorial jurisdiction.398 For example, state parties to the Smuggling Protocol399 may rely on that treaty to assert this authority in some circumstances:

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the European Court of Human Rights’ “more expansive interpretation of non-refoulement can . . . be explained by its unique position as a tribunal. Unlike any courts in the US and Australia, [it] is a supranational court that is explicitly charged with enforcing and implementing a human rights convention”: J. Goldenziel, “When Law Migrates: Refugees in Comparative International Law,” in A. Roberts et al. eds., Comparative International Law (2018), at 22. Martin advances a series of instrumentalist arguments against this approach, arguing most intriguingly that understanding the duty of nonrefoulement to prohibit extraterritorial deflection efforts will simply “drive[e] control measures into the shadows”: D. Martin, “Interdiction of Asylum Seekers: The Realms of Policy and Law in Refugee Protection,” Virginia Public Law and Legal Theory Research Paper No. 2014-57 (Sept. 1, 2014). This plea to avoid an understanding of the duty of nonrefoulement that some states would find inimical to their general migration management goals comes perilously close to a bald endorsement of state practice as determinative of the meaning of a treaty, an approach not justified under norms of treaty interpretation: see Chapter 2.4. See text at note 29. 394 See text at note 33. 395 See text at notes 30–31. See text at note 36. See generally R. Rothfield ed., The Drownings’ Argument (2014); and Schloenhardt and Craig, “Turning Back the Boats.” UNHCR, “Desperate Journeys: Refugees and migrants entering and crossing Europe via the Mediterranean and Western Balkans Routes,” Feb. 2017. Yet there is reason to doubt the effectiveness of deterrence as a life-saving measure: see Schloenhardt and Craig, “Turning Back the Boats.” For a detailed analysis of the relationship between refugee law duties and responsibilities to combat human trafficking and smuggling see J. Hathaway, “The Human Rights Quagmire of ‘Human Trafficking,’” (2008) 49(1) Virginia Journal of International Law 1–49; republished in M. Segrave ed., Human Trafficking (2013). Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime, 2241 UNTS 507 (UNTS 39574), adopted Nov. 15, 2000, entered into force Jan. 28, 2004 (Smuggling Protocol).

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A State Party that has reasonable grounds to suspect that a vessel is engaged in the smuggling of migrants by sea and is without nationality or may be assimilated to a vessel without nationality may board and search the vessel. If evidence confirming the suspicion is found, that State Party shall take appropriate measures in accordance with relevant domestic and international law.400

Thus, at least when the vessel in question does not have a flag state,401 state parties to the Smuggling Protocol enjoy a presumptive right to board and search vessels reasonably suspected of smuggling migrants. But neither the cause of saving lives nor the responsibility to combat trafficking or smuggling justifies a state acting in ways that are at odds with the ability simultaneously to respect obligations under the Refugee Convention, including the duty of non-refoulement.402 Because a refugee subject to the de facto control of a state – including, for example, a refugee on a vessel that has been boarded or intercepted by the agents of that state403 – is entitled to protection against refoulement, governments engaged in lifesaving or anti-trafficking/smuggling operations are required to conduct their operations in a way that enables refugees to seek and secure protection.404 In contrast, the rough-and-ready approach of US authorities intercepting Haitian refugees in international waters – granting them access to an assessment procedure only if they somehow demonstrate a “physical manifestation” of 400 401

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Ibid. at Art. 8(7). Where the vessel suspected of engaging in people smuggling has a flag state, that country’s cooperation is normally to be sought before boarding or searching the vessel: ibid. at Art. 8(2). “States have a legitimate interest in controlling irregular migration. Unfortunately, existing control tools, such as visa requirements and the imposition of carrier sanctions, as well as interception measures, often do not differentiate between genuine asylum-seekers and economic migrants. National authorities, including immigration and airlines officials posted abroad, are frequently not aware of the paramount distinction between refugees, who are entitled to international protection, and other migrants, who are able to rely on national protection”: UNHCR, “Interception,” at [17]. See Chapter 3.1.1 at note 73. “A good faith understanding of the duty of non-refoulement requires states to provide reasonable access and opportunity for a protection claim to be made”: “The Michigan Guidelines on Refugee Freedom of Movement,” (2017) 39 Michigan Journal of International Law 1, at [10]. Indeed, the UNHCR has suggested that “States should avoid the categorization of interception operations as search and rescue operations, because this can lead to confusion with respect to disembarkation responsibilities . . . Measures to combat smuggling and trafficking of persons must not adversely affect the human rights and dignity of persons and must not undermine international refugee protection responsibilities”: Report of the Office of the United Nations High Commissioner for Refugees, “The treatment of persons rescued at sea: conclusions and recommendations from recent meetings and expert round tables convened by the Office of the United Nations High Commissioner for Refugees,” UN Doc. A/AC.259/17, June 23– 27, 2008, at [20], [47].

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fear405 – offers only the form rather than the substance of access to protection.406 And while the duty of non-refoulement does not require that all refugees be admitted to the territory of the intercepting state,407 neither does it allow willful blindness to the foreseeable consequences of taking refugees to countries that do not have an adequate procedure to identify and protect refugees408 – including, for example, disembarkations by Australia of intercepted refugees in Indonesia.409 Nor may a state avoid liability for refoulement by subcontracting its deterrent strategy to transportation companies or other private actors. Under principles of state responsibility, governments are responsible inter alia for “the conduct of a person or group of persons in fact acting on the instruction of, or under the direction or control of, the State,”410 as well as for “conduct 405 406

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See Chapter 4.1 at note 32. “During the last three decades, US Coast Guard has returned all Haitians who do not demonstrate a ‘physical manifestation’ of a fear of return. Those that pass this ‘shout test’ or ‘sweat test’ may be referred for an asylum screening. The shout test does not pass the smell test. It is ineffective as a refugee screening tool and makes a mockery of international legal standards. No Haitian has been granted asylum after having been ‘screened’ in this careless and arbitrary fashion. The US Coast Guard has subsequently identified one Haitian as having a manifestation of fear, and that person did not pass the credible fear screening. In contrast, in 2010, 55 percent of Haitians who applied for asylum in the US after arriving by air or land were granted asylum”: Hebrew Immigrant Aid Society, “Refugees Must Be Protected, Even at Sea,” Dec. 2014. As Legomsky opines, “in theory a fair refugee status determination could possibly be made outside the country’s territory . . . [H]owever, the practical obstacles to a fair procedure in conjunction with interdiction are formidable”: Legomsky, “Caribbean Interdiction,” at 686, n. 58. See Chapter 4.1 at notes 134–135. The UNHCR has issued helpful analyses of duties in the context of extraterritorial processing: UNHCR, “Maritime interception operations and the processing of international protection claims: legal standards and policy considerations with respect to extraterritorial processing,” Nov. 2010; UNHCR, “Guidance Note on bilateral and/or multilateral transfer arrangements of asylum-seekers,” May 2013. See also A. Francis, “Bringing Protection Home: Healing the Schism between International Obligations and National Safeguards Created by Extraterritorial Processing,” (2008) 20(2) International Journal of Refugee Law 273; and S. Hamood, “EU–Libya Cooperation on Migration: A Raw Deal for Refugees and Migrants?,” (2008) 21(1) Journal of Refugee Studies 19. See Chapter 4.1 at note 35. Sadly, the High Court of Australia felt constrained by domestic legislation allowing refugees to be sent to countries such as Papua New Guinea on the basis of a designation that “need not be [made] by reference to the international obligations or domestic law of that country” to find that while “[t]here may be some doubt whether the provisions . . . can be said to respond to Australia’s obligations under the Refugee Convention . . . However, there was no statutory requirement that the Minister be satisfied of these matters in order to exercise the relevant power”: Plaintiff S156/2013 v. Minister for Immigration and Border Protection, [2014] HCA 22 (Aus. HC, June 18, 2014), at [10], [44]–[46]. International Law Commission, “Articles on the Responsibility of States for Internationally Wrongful Acts,” UN Doc. A/56/10; GAOR, 56th Sess., Supp. No. 10 (2001), at Art. 8.

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which is . . . acknowledged and adopted by the State as its own.”411 Where these requirements are met, an act that would amount to an exercise of extraterritorial jurisdiction is no less so because it is committed by an entity such as a private corporation at the behest of a government than if committed directly by officials of the state party itself.

4.1.3.2 Cooperative Extraterritorial Deterrence No doubt prompted by the realization that significant obligations flow from the duty of non-refoulement, wealthier countries have turned to cooperative variants of deterrence in the hope of circumventing their duties of protection. Rather than relying solely on unilateral deterrent strategies, wealthy countries now increasingly conscript poorer buffer states to do much of the work of interception for them412 – as in the case of Italian agreements with Libya,413 US arrangements with Mexico,414 and Spanish accords with Cabo Verde, Mauritania, and Senegal.415 This geographical reorientation is thought to be legally instrumental because even as international law has evolved to make clear that liability under the nonrefoulement norm ensues for actions taken by a state outside its borders, governments have assumed that actions undertaken under the jurisdiction of the authorities of other countries are legally risk-free. With poorer states often willing for economic, political, and other reasons to serve as the gatekeepers to the developed world,416 wealthier countries have therefore sought to insulate themselves from liability for refugee deterrence by having such action take place under the sovereign authority of another country. Ad hoc and bilateral arrangements have now spawned a series of more comprehensive arrangements. Under the American-led Merida Initiative,417 the Bali Process co-chaired by Australia and Indonesia,418 and the European Union’s “external dimension,”419 developed states are crafting regional platforms that embed asylum and migration questions into the mainstream of their foreign policy. 411 413 416

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Ibid. at Art. 11. 412 See generally Gammeltoft-Hansen, Access to Asylum. See text at note 39. 414 See text at note 42. 415 See text at note 41. See e.g. J. Niessen and Y. Schibel eds., International Migration and Relations with Third Countries: European and US Approaches (2004); S. Lavenex, “Shifting Up and Out: The Foreign Policy of European Immigration Control,” (2006) 29 Western European Politics 329, at 330–333; A. Geddes, “Migration as Foreign Policy? The External Dimension of EU Action on Migration and Asylum,” (2009) 2 Swedish Inst. European Policy Studies 1, at 16. The Merida Initiative is a multi-year agreement between the United States and Mexico to combat drug smuggling, transnational crime, and illegal immigration. See generally I. Vaughne ed., The Merida Initiative: US Counterdrug and Anticrime Assistance for Mexico (2010). S. Kneebone, “The Bali Process and Global Refugee Policy in the Asia-Pacific Region,” (2014) 27 Journal of Refugee Studies 596, at 599–610. C. Boswell, “The ‘External Dimension’ of EU Immigration and Asylum Policy,” (2003) 79 International Affairs 619; see also Tampere European Council, European Parliament, Presidency Conclusions (1999), at [15]–[16].

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These strategies might seem capable of enabling states to evade legal liability, at least where the collaboration is with a partner state, such as Indonesia or Libya, that is itself not bound by Art. 33’s duty of non-refoulement. This is because the primary form of jurisdiction – and the lynchpin to liability for refoulement – is control over territory, and such control is normally exclusive. But neither of the alternative bases for establishing jurisdiction (authority over individuals nor the exercise of public powers)420 necessarily preempts the simultaneous jurisdiction of a territorial or cooperating state. The question thus arises whether the state acting extraterritorially may be held to exercise jurisdiction in the case of such non-exclusivity. Under general norms of public international law, the fact that more than one state has jurisdiction does not diminish the individual responsibility of any particular state.421 Human rights jurisprudence has aligned with this approach, expressly rejecting an “all or nothing” approach, and finding that “rights can be ‘divided and tailored.’”422 Thus, for example, the European Court of Human Rights found that both Moldova and Russia had exercised jurisdiction over individuals detained in the Transnistrian region – Russia due to its decisive influence over the local regime, and Moldova through its de jure sovereignty over the area – and determined that simultaneous yet differentiated human rights responsibility followed.423 The European Court of Human Rights has also rejected the view that the Netherlands had no jurisdiction over a command checkpoint in Iraq manned by its troops simply because the United Kingdom – as a formal occupying power – might also have jurisdiction there. To the contrary, the Court found that a party “is not divested of its ‘jurisdiction’ . . . solely by dint of having accepted the operational control of . . . a United Kingdom officer.”424 The same principle was found to apply where distinct actions by more than one state result in a common harm. In the case of MSS v. Belgium and Greece it was determined that Belgium was in breach for returning the applicant to Greece contrary to the duty of non-refoulement, even as Greece was found liable for the failure to establish adequate asylum procedures and to avoid the ill-treatment of those seeking its protection.425 As such, depending on the nature of the role, the stationing of officials in a transit state may amount to 420 421

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See Chapter 3.1.1 at note 69 ff. and note 80 ff. Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, [1992] ICJ Rep 240, at 261–262; East Timor (Portugal v. Australia), [1995] ICJ Rep 90, at 104–105; Corfu Channel (United Kingdom v. Albania), [1949] ICJ Rep 4, at 36. Al-Skeini v. United Kingdom, (2011) 53 EHRR 589 (ECtHR, July 7, 2011), at [137]; Hirsi Jamaa v. Italy, (2012) 55 EHRR 21 (ECtHR [GC], Feb. 23, 2012), at [74]. Ilaşcu v. Moldova, Dec. No. 48787/99 (ECtHR, July 8, 2004), at [376]–[394]; see also Drozd v. France, [1992] ECHR 52 (ECtHR, July 26, 1992), at [91]–[96]. Jaloud v. Netherlands, Dec. No. 47708/08 (ECtHR, Nov. 20, 2014), at [143]. MSS v. Belgium, Dec. No. 30696/96 (ECtHR, Jan. 21, 2011).

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shared jurisdiction by virtue of authority over individuals; that was almost certainly the case when UK officials stationed in Prague Airport made decisions about who would be allowed to board UK-bound flights426 (though as previously noted, Czech nationals trapped by this policy were not yet refugees, meaning there was no breach of Art. 33’s duty of non-refoulement).427 Whether liability arises from placing Australian Airline Immigration Officers in refugee transit states428 is, however, less clear: while the mere giving of support and advice to local officials does not amount to de facto control over the refugees, it would be otherwise if shown that transit state officials simply executed the turn-back decisions dictated by the Australian officials.429 Importantly, particularized liability may ensue even when not all of the states exercising jurisdiction are bound by the same international legal obligations. In AlSkeini, the United Kingdom was held responsible under the European Convention on Human Rights even though it shared its jurisdiction in Iraq with the United States and other non-party states making up the Coalition Provisional Authority following the removal of the Ba’ath regime.430 Similarly, the active assistance of Kenyan authorities in the arrest of the PKK leader in Nairobi was considered in Öcalan; yet this did not detract from a finding of Turkish jurisdiction once Turkish authorities took him into custody.431 Accordingly, the fact that a partner state is not a party to the Refugee Convention (for example, Libya, which has entered into cooperation agreements with Italy)432 is no bar to finding the sponsoring state party exercising jurisdiction to be liable. Nor does it matter whether shared jurisdiction exists directly among the states in question or is achieved by the delegation of authority to an agency or organ.433 In TI v. United Kingdom,434 the European Court of Human Rights determined that where States establish international organisations, or mutatis mutandis international agreements, to pursue co-operation in certain fields of activities, there may be implications for the protection of fundamental rights. It would be incompatible with the purpose and object of the Convention if Contracting States were thereby absolved from their responsibility under the Convention in relation to the field of activity covered by such attribution.435 426 429

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See text at note 52. 427 See Chapter 4.1.1 at note 182. 428 See text at note 51. Engagement of this kind may, however, amount to unlawfully aiding or assisting another state to breach its legal obligations: See text at note 442 ff. Al-Skeini v. United Kingdom, (2011) 53 EHRR 589 (ECtHR, July 7, 2011), at [144]–[150]. Öcalan v. Turkey, Dec. No. 46221/99 (ECtHR, May 12, 2005), at [93]. See text at note 51. International Law Commission, “Articles on the Responsibility of States for Internationally Wrongful Acts,” UN Doc. A/56/10; GAOR, 56th Sess., Supp. No. 10 (2001), at art. 47, comment 125. This is corroborated by International Law Commission, “Draft Articles on the Responsibility of International Organisations,” UN Doc. A/66/10; GAOR, 63rd Sess., Supp. No. 10 (2011), at arts. 58–62, comments 89–90. TI v. United Kingdom, Dec. No. 43844/98 (ECtHR, Mar. 7, 2000). 435 Ibid. at 15.

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Because legal liability is not avoided when authority is delegated to an international organization,436 patrols conducted under the auspices of such entities as the European Union’s Frontex agency (and its successor European Border and Coast Guard Agency)437 still engage the liability of each participating state whose officials or agents have taken part in an action that gives rise to jurisdiction, and which leads to refoulement or another human rights breach. So too does the entrusting to NATO of the duty to intercept boats carrying refugees in the Aegean without regard to non-refoulement obligations.438 It is thus clear that the notion of shared jurisdiction – allowing more than one state to be held liable for a given breach of human rights as a function of its own actions, whatever the liability of other states – is an important bulwark against cooperation-based forms of non-entrée that purport to leave partner states holding the bag for the refoulement of refugees. As the European Court of Human Rights noted succinctly in Xhavara, the “Italian–Albanian Agreement cannot, by itself, engage the responsibility of [Albania] under the Convention for any action taken by Italian authorities in the implementation of this agreement.”439 But what of the situation where the involvement of the sponsoring state falls short of establishing jurisdiction, even under one of the expanded notions of jurisdiction?440 For example, states are clearly not exercising jurisdiction when 436

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D. Sarooshi, International Organisations and their Exercise of Sovereign Powers (2007), at 64; O. de Schutter, International Human Rights Law: Cases, Materials, Commentary (2010), at 216–238. State responsibility for acts committed by states acting under the authority of the UN Security Council remains a special case: Behrami v. France, (2007) 45 EHRR 85 (ECtHR, May 31, 2007). Regulation (EU) 2016/1624 of the European Parliament and of the Council of 14 September 2016 on the European Border and Coast Guard and amending Regulation (EU) 2016/399 of the European Parliament and of the Council and repealing Regulation (EC) No 863/2007 of the European Parliament and of the Council, Council Regulation (EC) No 2007/2004 and Council Decision 2005/267/EC (OJ 2016 L251/1). See text at note 48. Xhavara v. Italy, Dec. No. 39473/98 (ECtHR, Jan. 11, 2001). The European Court of Human Rights further considered the impact of bilateral agreements in Al-Saadoon, in which the United Kingdom argued that since United Kingdom forces operated in Iraq subject to a memorandum of understanding establishing Iraqi jurisdiction, the United Kingdom was under a legal obligation to transfer the applicants to the Iraqi authorities despite a known risk that this might subject the applicants to the death penalty. Recalling the Soering principle that such a transfer would constitute refoulement, the Court held that “a Contracting Party is responsible under Article 1 of the Convention for all acts and omissions of its organs regardless of whether the act or omission in question was a consequence of domestic law or of the necessity to comply with international legal obligations. Article 1 makes no distinction as to the type of rule or measure concerned and does not exclude any part of the Contracting Party’s ‘jurisdiction’ from scrutiny under the Convention”: Al-Saadoon v. United Kingdom, Dec. No. 61498/08 (ECtHR, June 30, 2009), at [128]. See Chapter 3.1.1.

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they provide only training or material assistance to a partner state. Even when immigration officers or other officials are posted to another country as advisers, there will be no exercise of jurisdiction unless the authorities of the territorial state can be shown to act under the direction and control of the sponsoring state. There is nonetheless an emerging consensus that international law will hold states responsible for aiding or assisting another state’s wrongful conduct441 even where the sponsoring state is not exercising jurisdiction. This understanding is most clearly set out in Article 16 of the International Law Commission’s Articles on State Responsibility: A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if: (a) That State does so with knowledge of the circumstances of the internationally wrongful act; and (b) The act would be internationally wrongful if committed by that State.442

While the ILC Articles are not, of course, formally binding, Article 16 has garnered wide support as a matter of state practice and opinio juris.443 In the Bosnian Genocide case, for example, the International Court of Justice drew on Article 16, noting that it considered the article to be an expression of customary international law.444 The Venice Commission of the Council of Europe similarly referred to Article 16 as applicable to European states contributing to instances of refoulement and other human rights abuses in the context of the US-led 441

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See e.g. H. Aust, Complicity and the Law of State Responsibility (2013) (Aust, Complicity); J. Crawford, State Responsibility: The General Part (2013) (Crawford, State Responsibility); M. Gibney, K. Tomaševski, and J. Vedsted-Hansen, “Transnational State Responsibility for Violations of Human Rights,” (1999) 12 Harvard Human Rights Journal 267. International Law Commission, “Articles on the Responsibility of States for Internationally Wrongful Acts,” UN Doc. A/56/10; GAOR, 56th Sess., Supp. No. 10 (2001), at art. 16. Earlier drafts of the ILC Articles equally referred to “complicity” and “accessory” responsibility, but “aid and assistance” was eventually chosen as a more neutral-sounding term: G. Nolte and H. Aust, “Equivocal Helpers – Complicit States, Mixed Messages and International Law,” (2009) 58 International and Comparative Law Quarterly 1. As Milanovic has pointed out, “aid and assistance” may perhaps best be thought of as a particular kind of complicity, involving a degree of material assistance beyond mere instigation. M. Milanovic, “State Responsibility for Genocide: A Follow-Up,” (2007) 18 European Journal of International Law 669 (Milanovic, “State Responsibility for Genocide”), at 682. Aust, Complicity, at 107–191 (providing an overview in this area). As Aust concludes, “[t]he number of positive statements available allows us to ascribe the necessary opinio juris to the elements of practice we have assembled to a degree that is seldom found in international law . . . [N]ot only can we point towards a significant amount of practice here, but we can underline its legal significance with the amount of support Article 16 ASR [ILC Articles on State Responsibility] has found in the deliberations of States in the United Nations”: ibid. at 186. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia), [2007] ICJ Rep 43, at [420].

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extraordinary rendition program,445 as did Judge Pinto de Albuquerque in his separate opinion in Hirsi.446 This approach is moreover very much in line with the general view of the European Court of Human Rights that international human rights law is to be interpreted in the light of the law on state responsibility: [P]rinciples underlying the Convention cannot be interpreted and applied in a vacuum. The Court must also take into account any relevant rules of international law when examining questions concerning its jurisdiction and, consequently, determine State responsibility in conformity with the governing principles of international law.447

The commentary to Article 16 notes moreover that the assistance need not be essential to performing the illegal act, so long as it contributes significantly thereto448 – suggesting, at the very least, that action beyond mere instigation is required.449 State responsibility does however arise where a state provides “material aid to a State that uses the aid to commit human rights violations.”450 The ICJ thus sensibly determined in the Bosnian Genocide case that the supply of weapons, military equipment, and financial resources amounted to “aid and assistance” by the Federal Republic of Yugoslavia to the army of Republika Srpska.451 445

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European Commission for Democracy Through Law (Venice Commission), “On the International Legal Obligations of Council of Europe Member States in Respect of Secret Detention Facilities and Inter-State Transport of Prisoners,” Op. No. 363/2005, CDL-AD(2006)009 (2006), at [44]–[45]. Hirsi Jamaa v. Italy, (2012) 55 EHRR 21 (ECtHR [GC], Feb. 23, 2012), at [97] (separate opinion of Judge Pinto de Albuquerque). Banković v. Belgium, Dec. No. 52207/99 (ECtHR, Dec. 12, 2001), at [57]. Indeed, Article 6 of the ILC Articles on State Responsibility was applied in Jaloud to determine questions of attribution between the Netherlands and the United Kingdom: Jaloud v. Netherlands, Dec. No. 47708/08 (ECtHR, Nov. 20, 2014), at [151]. Similarly, the Court has applied Article 5 of the parallel Draft Articles on the Responsibility of International Organizations to determine the question of attribution between the United Kingdom and the United Nations: Al-Jedda v. United Kingdom, Dec. No. 27021/08 (ECtHR, July 7, 2011), at [84]. “There is no requirement that the aid or assistance should have been essential to the performance of the internationally wrongful act; it is sufficient if it contributed significantly to that act”: International Law Commission, “Articles on the Responsibility of States for Internationally Wrongful Acts,” UN Doc. A/56/10; GAOR, 56th Sess., Supp. No. 10 (2001), Art. 16, at [5]. Aust, Complicity, at 209; Crawford, State Responsibility, at 403; Milanovic, “State Responsibility for Genocide,” at 682. International Law Commission, “Articles on the Responsibility of States for Internationally Wrongful Acts,” UN Doc. A/56/10; GAOR, 56th Sess., Supp. No. 10 (2001), Art. 16, at [9]. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia), [2007] ICJ Rep 43, at [239]–[241], [422]. See also International Law Commission, “Articles on the Responsibility of States for Internationally Wrongful Acts,” UN Doc. A/56/10; GAOR, 56th Sess., Supp. No. 10 (2001), Art. 16, at [7].

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In line with these understandings, a state which takes steps such as providing maritime patrol vessels or border control equipment, which seconds border officials, or which shares relevant intelligence or directly funds migration control efforts that assist another country to breach its non-refoulement obligations is taking action that can fairly be characterized as within the ambit of aiding or assisting. A clear example would be the transporting of Libyan, Mauritanian, and Senegalese officials aboard European ships in order to enable those officials to conduct refugee interceptions,452 or France’s provision of aid to Italy specifically to blockade Italian ports and force North African refugees away.453 Equally clearly, US collaboration with Central American states – including not only funding and training for officials, but even the deployment of US security officials to assist with interceptions of US-bound refugees454 – amounts to unlawful aiding or assisting in the push-backs of those refugees. The massive financial investment of the European Union in forcing refugees to remain in Turkey,455 from which country the refoulement of Syrian and other refugees has been documented,456 also likely meets this threshold. On the other hand, merely applying diplomatic pressure to introduce or enforce exit migration controls or to sign readmission agreements – while undoubtedly creating a climate within which refoulement may occur – is likely too remote from the harm to be deemed aiding or assisting the commission of refoulement.457 Nor does a pure act of omission by, for example, failing to step in to prevent an instance of refoulement by another state, rise to the level of aiding or assisting that country to breach its obligations.458 Even where the sponsoring state takes more direct forms of action, however, Article 16 provides that the assisting state must also have “knowledge of the circumstances of the internationally wrongful act.”459 As such, liability does 452 455 457

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See text at note 50. 453 See text at notes 63–65. 454 See text at notes 43–44. See text at note 49. 456 See text at note 112. R. Byrne et al. eds., New Asylum Countries: Migration Control and Refugee Protection in an Enlarged European Union (2002), at 16. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia), [2007] ICJ Rep 43, at [222]–[223]; Crawford, State Responsibility, at 403–405. International Law Commission, “Articles on the Responsibility of States for Internationally Wrongful Acts,” UN Doc. A/56/10; GAOR, 56th Sess., Supp. No. 10 (2001), Art. 16. Indeed, the commentary goes further, suggesting both an intention and a consummation requirement, namely that aid or assistance must be given “with a view to facilitating the [internationally] wrongful act, and must actually do so”: ibid. at [5]. The interpretation of this requirement has been an issue of some contestation both within and outside the ILC. On the one hand, it could be taken to imply that the assisting state must share the wrongful intent of the principal state, effectively narrowing the scope of application: Aust, Complicity, at 239–240; Milanovic, “State Responsibility for Genocide,” at 682–684. The International Court of Justice raised this question in the Genocide case, but ultimately left it unanswered: “Before the Court turns to an examination of the facts, one further comment is required. It concerns the link between the

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not follow where aid or assistance given in good faith is subsequently misused by another country; thus a state providing development aid is not responsible if, unbeknownst to it, that aid is used to implement border controls that lead to the refoulement of refugees. It is otherwise, however, where the sponsoring state has at least constructive knowledge that its contributions will aid or assist another country to breach its obligations and chooses to aid or assist despite such knowledge. For example, in Hirsi, Italy argued that it reasonably considered Libya to be a “safe host country” based on its ratification of several human rights treaties and the African Union’s regional refugee treaty, coupled with the express stipulation in the Italian–Libyan agreement requiring Libya to comply with international human rights law.460 Relying on these formal commitments, Italy argued that it “had no reason to believe that Libya would evade its commitments.”461 This argument was, however, rejected by the Court: [T]he Court is bound to observe that the existence of domestic laws and the ratification of international treaties guaranteeing respect for fundamental rights are not in themselves sufficient to ensure adequate protection against the risk of ill-treatment where, as in the present case, reliable sources have reported practices resorted to or tolerated by the authorities . . . The Court notes again that [this] situation was well known and easy to verify on the basis of multiple sources. It therefore considers that when the applicants were removed, the Italian authorities knew or should have known that, as irregular migrants, they would be exposed in Libya to treatment in breach of the Convention and that they would not be given any kind of protection in that country.462

This holding aligns neatly with the general refusal of courts to countenance willful blindness to readily ascertainable facts.463

460 461 463

specific intent (dolus specialis) which characterizes the crime of genocide and the motives which inspire the actions of an accomplice (meaning a person providing aid or assistance to the direct perpetrators of the crime): the question arises whether complicity presupposes that the accomplice shares the specific intent (dolus specialis) of the principal perpetrator. But whatever the reply to this question, there is no doubt that the conduct of an organ or a person furnishing aid or assistance to a perpetrator of the crime of genocide cannot be treated as complicity in genocide unless at the least that organ or person acted knowingly, that is to say, in particular, was aware of the specific intent (dolus specialis) of the principal perpetrator. If that condition is not fulfilled, that is sufficient to exclude categorization as complicity. The Court will thus first consider whether this latter condition is met in the present case. It is only if it replies to that question of fact in the affirmative that it will need to determine the legal point referred to above”: Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia), [2007] ICJ Rep 43, at [421]. Hirsi Jamaa v. Italy, (2012) 55 EHRR 21 (ECtHR [GC], Feb. 23, 2012). Ibid. at [98]. 462 Ibid. at [128], [131]. See e.g. Aust, Complicity, at 244–249; I. Brownlie, System of the Law of Nations: State Responsibility Part 1 (1983), at 12. This would align the knowledge requirement for

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Beyond the requirement of knowledge, liability for aiding or assisting can be imposed only where the act “would be internationally wrongful” if committed by both the principal state actor and the state said to be aiding or assisting that country.464 The starting point is therefore to ascertain whether the conduct in question is in breach of an international obligation of the principal state – not a minor matter when, as is often the case, non-entrée cooperation is undertaken with a state that is not bound by the Refugee Convention or Protocol, including such key partner states as Libya, Indonesia, and Malaysia.465 Some would no doubt seek to locate the required unlawfulness in the alleged existence of a customary legal duty of non-refoulement.466 The better approach, however, is to draw on Crawford’s view that Article 16(b) “merely requires that the conduct in question would have been internationally wrongful if committed by the assisting state and says nothing about the identity of norms or sources,”467 thus opening the possibility of liability for aiding or assisting where the act in question is unlawful for both the principal and sponsoring states, albeit on the basis of distinct legal norms.468 Many partner states not bound by the Refugee Convention or Protocol are nonetheless parties to other human rights instruments that contain a cognate duty of non-refoulement (though the scope of the same may not in all cases be identical),469 many of which provide the required basis for a finding of international wrongfulness. For example, Libya and Indonesia have both ratified the International Covenant on Civil and Political Rights (which has been interpreted to impose a duty of non-refoulement at least in cases involving risk of the breach of Articles 6 and 7)470 as well as the Convention against Torture (which

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complicity with that ordinarily applied in the context of non-refoulement. But see Crawford, State Responsibility, at 406. This is a reflection of the pacta tertii principle that no state is bound by the obligations of another state vis-à-vis third states. See Vienna Convention on the Law of Treaties, 1155 UNTS 331 (UNTS 18232), at Arts. 34–35. See T. Gammeltoft-Hansen, “The Externalisation of European Migration Control and the Reach of International Refugee Law,” in E. Guild and P. Minderhoud eds., The First Decade of EU Migration and Asylum Law 273 (2012). The arguments against this view are detailed in J. Hathaway, “Leveraging Asylum,” (2010) 45(3) Texas International Law Journal 503; see also Chapter 4.1.6. Crawford, State Responsibility, at 410. Notably, the International Court of Justice, when considering that Article 16 could be applied analogously to state complicity under the Genocide Convention, did not consider the equal obligations requirement to be essential since the Bosnian Serb forces committing the genocide did not constitute a state: Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia), [2007] ICJ Rep 43. These alternative duties of non-refoulement are described in Chapter 4.1.6. at note 815 ff. UN Human Rights Committee, “General Comment 20: Prohibition of Torture or Other Cruel, Inhuman or Degrading Treatment or Punishment (Article 7),” UN Doc. HRI/GEN/ 1/Rev.1 at 30, 44th Sess. 1992 (1994), at [9].

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proscribes return to torture in Article 3).471 Indeed, it may even be the case that it would be “internationally wrongful” for a partner state to breach the terms of an international non-entrée cooperation agreement of the kind favored by the European Union with Mediterranean and Eastern European states,472 which commonly condition such cooperation on respect for refugee and other rights. In sum, three evolving areas of international law – jurisdiction, shared responsibility, and liability for aiding or assisting – are likely to stymie many if not all of the new forms of cooperative deterrence of refugees. The fact that jurisdiction, and hence liability, is now understood to flow not just from territory, but also from authority over individuals in areas beyond a state’s jurisdiction and indeed from the exercise of public powers abroad, has expanded the scope of accountability for core refugee rights, including in particular the duty of non-refoulement. Particularized liability may moreover ensue even where more than one state is liable for the violation of human rights. And even when no case can be made for the exercise of jurisdiction, the emerging law on liability for aiding or assisting another state to breach its duties under international law has enormous potential to close the accountability gaps that the new generation of cooperative deterrence practices seeks to exploit.

4.1.4 Individuated Exceptions States are not bound to honor the Refugee Convention’s duty of nonrefoulement473 in the case of refugees who are individually determined to pose a fundamental threat to the receiving state.474 Critically, Art. 33(2) does 471

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See B. Gorlick, “The Convention and the Committee against Torture: A Complementary Protection Regime for Refugees,” (1999) 11 International Journal of Refugee Law 479. See text at note 46. “The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country [emphasis added]”: Refugee Convention, at Art. 33(2). States also bound by Art. II(3) of the Convention Governing the Specific Aspects of Refugee Problems in Africa, 1001 UNTS 45 (UNTS 14691), done Sept. 10, 1969, entered into force June 20, 1974 (“AU Refugee Convention”) enjoy no right to engage in refoulement of a refugee, as that treaty’s non-refoulement duty is framed without qualification. See generally Chapter 1.5.3 at note 262. Despite the prerogative afforded by Art. 33(2), state parties to other human rights treaties – for example, to the European Convention on Human Rights, to the Convention against Torture, and to the International Covenant on Civil and Political Rights – will be subject to additional constraints on removal as a result of these other treaty obligations: see Chapter 4.1.6 at note 815 ff. Lauterpacht and Bethlehem go much farther, suggesting that – the clear language of Art. 33(2) notwithstanding – there is today a basis for understanding the duty of non-refoulement to include no exceptions whatever: Lauterpacht and Bethlehem, “Nonrefoulement,” at [151]–[158]. The argument is based on an unsound construction of Art.

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not exclude persons from refugee status,475 but rather provides the means for states to expel or return two categories of refugees.476 First, it authorizes the refoulement of any refugee whom there are reasonable grounds for regarding as a danger to the security of the asylum country, whether or not there is an allegation of criminality. Second, Art. 33(2) sanctions the removal of refugees adjudged to endanger the safety of the community of the asylum country because of particularly serious crimes committed in the state of refuge or elsewhere, whether or not those crimes remain justiciable. While Art. 33(2) thus affords asylum states the means to protect their most basic interests, it is – as described in detail below – a provision that is carefully framed to ensure that a refugee’s right to protection can be forfeited only in cases of clearly demonstrated and very substantial risk to the host country or its people. There is, however, frequently confusion between the right of a state to expel or return dangerous refugees pursuant to Art. 33(2) and the exclusion of fugitives from justice under Art. 1(F)(b) of the Convention.477 Art.

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33(2) which draws on a mix of regional norms, norms derived from other instruments, and policy positions of international agencies. While the authors “are not ultimately persuaded that there is a sufficiently clear consensus opposed to exceptions to nonrefoulement to warrant reading the 1951 Convention without them,” they nonetheless insist that the exceptions “must be read subject to very clear limitations”: ibid. at [158]. “The 1951 Convention foresees that . . . refugees . . . can be subject to . . . expulsion proceedings in accordance with Article 32 and, in exceptional cases, to removal under Article 33(2). Neither action per se involves revocation of refugee status . . . [On the other hand] [w]here the [Art. 1(F)] exclusion clauses apply, the individual cannot be recognised as a refugee and benefit from protection under the 1951 Convention. Nor can the individual fall within the UNHCR’s mandate”: UNHCR, “Background Note on the Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees,” Sept. 4, 2003, at [17], [21]. It has thus been determined that invocation of provisions under EU law implementing Art. 33(2) “cannot be interpreted as meaning that . . . [the person concerned] is no longer a refugee for purposes of . . . the Geneva Convention . . . [It] in no way means that he or she ceases to satisfy the material conditions, relating to a well-founded fear of persecution in his or her country of origin, on which his or her being a refugee depends”: M v. Czech Republic, X and X v. Belgium, Dec. Nos. C-391/16, C-77/17, and C-78/17 (CJEU, May 14, 2019), at [97]–[98]. See e.g. MS and MBT v. Secretary of State for the Home Department, [2017] EWCA Civ 1190 (Eng. CA, July 31, 2017), at [7] (noting that but for the countervailing requirements of the European Convention on Human Rights, Art. 33(2) allows “a person guilty of acts of the kind specified [to] . . . be refused asylum and returned to a country where he is at serious risk of persecution or other serious harm”). See generally Hathaway and Foster, Refugee Status, at 537–543. See e.g. decisions of the Supreme Court of Canada effectively treating the domestic incorporation of Art. 1(F) exclusion as the basis for permissible refoulement in Jószef Németh v. Minister of Justice of Canada, [2010] SCC 56 (Can. SC, Nov. 25, 2010), at [23], [108], and Tiberiu Gavrila v. Minister of Justice of Canada, [2010] SCC 57 (Can. SC, Nov. 25, 2010), at [12]. European Union law shows that the confusion can also run in the opposite direction, with refusal of refugee status purportedly authorized in relation to persons in fact subject only to particularized refoulement under Art. 33(2), but who actually remain refugees under the

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1(F)(b),478 inserted at the insistence of countries that perceived themselves to be vulnerable to large flows of refugees,479 was designed to afford the possibility of pre-admission exclusion from refugee status without recourse to a formal trial to assess the criminal charge. But it is a provision that applies in only very narrowly defined circumstances,480 specifically only to persons believed to have committed serious, pre-entry crimes which remain justiciable.481 While the complete exclusion of such persons from refugee status may appear

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Convention: Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast) (“EU Qualification Directive”), at Art. 14(4)–(5). This point was argued, but not resolved, in EN (Serbia) and KC (South Africa) v. Secretary of State for the Home Department, [2009] EWCA Civ 630 (Eng. CA, June 26, 2009), at [63]. The UK Home Office nonetheless takes the view that the Qualification Directive entitles it to rely on the equivalent of Art. 33(2) in “cases where a decision is yet to be made on an asylum claim”: UK Home Office, “Exclusion (Article 1F) and Article 33(2) of the Refugee Convention,” July 1, 2016, at 5. See generally A. Zimmermann and P. Wennholz, “Article 1 F,” in A. Zimmermann ed., The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary 579 (2011) (Zimmermann and Wennholz, “Article 1F”), at 590–591. “The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that . . . he has committed a serious non-political crime outside the country of refuge prior to this admission to that country as a refugee”: Refugee Convention, at Art. 1(F)(b). “France’s reason for taking such a firm stand on the subject lay in the fact that she had to administer the right of asylum under much more difficult conditions than did countries which were in a position to screen immigrants carefully at their frontiers”: Statement of Mr. Rochefort of France, UN Doc. A/CONF.2/SR.24, July 17, 1951, at 13. See also Statement of Mr. Makiedo of Yugoslavia, ibid. at 18. These states were concerned not to undermine the possibilities for resettlement of the refugees admitted: “If refugee status was to be granted to criminals, immigration countries could not fail to question its value”: Statement of Mr. Rochefort of France, UN Doc. A/CONF.2/SR.19, July 13, 1951, at 7. Indeed, because of the generality of Art. 33(2) it was argued by the United Kingdom that there was no need for a criminality exclusion clause in Art. 1(F)(b): Statement of Mr. Hoare of the United Kingdom, UN Doc. A/CONF.2/SR.24, July 17, 1951, at 4. See also Statement of Baron van Boetzelaer of the Netherlands, UN Doc. A/CONF.2/SR.29, July 19, 1951, at 12: “Common criminals should not enjoy the right of asylum; but that consideration had already been taken care of in article [33] of the draft Convention.” “There is little doubt that the primary purpose of Article 1(F)(b) was to exclude those individuals who would abuse the status of refugee by avoiding accountability through prosecution or punishment for a serious crime committed outside the country of refuge. For the clause to apply, the crime must have been committed ‘outside the country of refuge prior to his [or her] admission to that country as a refugee.’ This territorial limitation has been relied on as a strong indication that Article 1(F)(b) was intended to exclude those individuals who seek to abuse the status of being a refugee by evading prosecution in another jurisdiction”: Luis Alberto Hernandez Febles v. Minister for Citizenship and Immigration, [2014] SCC 68 (Can. SC, Oct. 30, 2014), at [101], per Abella and Cromwell JJ. in dissent.

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harsh,482 it was understood to be the only means available to ensure that refugee law did not provide shelter to fugitives from justice.483 Because ordinary crimes cannot normally be prosecuted in other than the country where they were committed, any response short of the exclusion of common law criminals from the refugee protection system (and consequential amenability to deportation) was believed by the drafters to risk undermining international comity in the fight against crime, thereby bringing the refugee system into disrepute.484 If, in contrast, the concern is not complicity in the avoidance of criminal responsibility, but instead protection of the core interests of the host state or of its citizenry, there is no need for the peremptory denial of refugee status.485 Criminality in the host state can, of course, be tried and punished. And even if a convicted refugee poses a clear risk to the host community, there is no need to strip him of his refugee status; rather it is sufficient, as Art. 33(2) provides, to authorize the host government to divest itself of its particularized protective responsibilities. The individual in question remains a refugee,486 and is therefore entitled both to UNHCR institutional assistance and to the protection of any other state party the safety and security of which is not infringed by the refugee’s presence within its territory.487 As described in more detail below, the criminality branch of Art. 33(2) requires conviction by a final judgment of a particularly serious crime.488 Beyond this, Art. 33(2) requires an additional 482

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As framed by Justice Bastarache in a foundational decision of the Supreme Court of Canada, “persons falling within Art. 1(F) of the Convention are automatically excluded from the protections of the [Convention]. Not only may they be returned to the country from which they have sought refuge without any determination . . . that they pose a threat to public safety or national security, but their substantive claim to refugee status will not be considered. The practical implications of such an automatic exclusion, relative to the safeguards of the [Art. 33(2)] procedure, are profound”: Pushpanathan v. Minister of Citizenship and Immigration, [1998] 1 SCR 982 (Can. SC, June 4, 1998), at [13]. “There is little doubt that the primary purpose of Article 1(F)(b) was to exclude those individuals who would abuse the status of a refugee by avoiding accountability through prosecution or punishment for a serious crime outside the country of refuge”: Luis Alberto Hernandez Febles v. Minister for Citizenship and Immigration, [2014] SCC 68 (Can. SC, Oct. 30, 2014), at [101]. See generally Hathaway and Foster, Refugee Status, at 543–544. See NBMZ v. Minister for Immigration and Border Protection, [2014] FCAFC 38 (Aus. FFC, Apr. 9, 2014), at [21], per Allsop C.J. and Katzmann J. concurring: “Article 33(2) and the circumstances within it reflect the balance contained within the Refugee[] Convention between protection of those who need it, and the legitimate entitlement of Contracting States not to be required to give protection to those who pose a danger to the host State and its people.” UNHCR, “Background Note on the Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees,” Sept. 4, 2003, at [17]. See generally A. Zimmermann and P. Wennholz, “Article 33, para. 2,” in A. Zimmermann ed., The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary 1397 (2011) (Zimmermann and Wennholz, “Article 33, para. 2”), at 1413. See text at note 551.

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determination that the offender “constitutes a danger to the community.” This distinction was clearly enunciated in the Supreme Court of Canada’s Pushpanathan decision: The purpose of Article 1 is to define who is a refugee. Article 1(F) then establishes categories of persons who are specifically excluded from that definition. The purpose of Article 33 of the Convention, by contrast, is not to define who is and who is not a refugee, but rather to allow for the refoulement of a bona fide refugee to his or her native country where he or she poses a danger to the security of the country of refuge, or to the safety of the community . . . Thus, the general purpose of Article 1(F) is not the protection of the society of refuge from dangerous refugees, whether because of acts committed before or after the presentation of a refugee claim; that purpose is served by Article 33 of the Convention.489

More generally, as the Court of Justice of the European Union has observed, the highly exceptional nature of the particularized refoulement authority means that it can be resorted to only where “no other measure is possible or is sufficient for dealing with the threat that the refugee poses to the security or to the public of that Member State”;490 thus, for example, Art. 33 should be read in consonance with Arts. 31 and 32 to allow refugees the opportunity to seek entry into a nonpersecutory state as an alternative to being returned to their home country.491 The genesis of the confusion between the functions of Art. 33(2) and Art. 1(F)(b) is a passage in the UNHCR’s Handbook suggesting that Art. 1(F)(b) is concerned both to exclude fugitives from justice and to protect the security of the asylum state492 – thus attributing to Art. 1(F)(b) some of the work that is meant to be done by Art. 33(2). While more recently recognizing the importance of avoiding this overlap,493 UNHCR nonetheless continues to argue for an understanding of Art. 1(F)(b) that strays beyond the drafters’ goal of ensuring 489

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Pushpanathan v. Minister of Citizenship and Immigration, [1998] 1 SCR 982 (Can. SC, June 4, 1998), at [58]. To similar effect, the New Zealand Court of Appeal determined that “Art. 1(F) is concerned with past acts. Art. 33(2) is only concerned with past acts to the extent that they may serve as an indication of the behaviour one may expect from the refugee in the future. The danger that the refugee constitutes must be a present or future danger”: Attorney General v. Zaoui, [2005] 1 NZLR 690 (NZ CA, Sept. 30, 2004), at [166]; varied on other grounds in Attorney-General v. Zaoui, [2005] NZSC 38 (NZ SC, June 21, 2005). HT v. Land Baden-Württemberg, Dec. No. C-373/13 (CJEU, June 24, 2015), at [71]. See Weis, Travaux, at 343. 492 UNHCR, Handbook, at [151]. UNHCR observed that “Article 1F should not be confused with Article 33(2)”; they are “two provisions serving very different purposes”: UNHCR, “Background Note on the Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees,” Sept. 4, 2003, at [10]. The agency has helpfully clarified that “[w]hile Article 1F is aimed at preserving the integrity of the refugee protection regime, Article 33(2) concerns protection of the national security of the host country”: UNHCR, “Statement on Article 1F of the 1951 Convention,” July 2009, at 8.

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that the integrity of the refugee regime not be compromised by the admission to asylum of criminals seeking to avoid legitimate prosecution or punishment.494 Before the Supreme Court of Canada, for example, the agency asserted that exclusion under Art. 1(F)(b) requires consideration of not only the gravity of the crime “but [also] of how long ago the offence was committed, the conduct of the claimant since the commission of the offence, whether the claimant has expressed regret or renounced criminal activities, and whether the claimant poses a threat to the security of Canada at the present time.”495 Similarly, in the United Kingdom Supreme Court, UNHCR advocated a “twofold purpose of Article 1(F)(b), that is, denial of refugee status (a) to those unworthy of international protection and (b) to fugitive criminals.”496 In arguing for these overly broad constructions of Art. 1(F)(b), UNHCR regrettably subverted its own admonition not to confuse the roles of Art. 1(F)(b) and Art. 33(2) – with both the Canadian and British Supreme Courts ruling that even refugees who were not fugitives from justice in any sense were nonetheless subject to peremptory exclusion.497 This confusion is sadly understandable: if Art. 1(F)(b) allows states to exclude anyone who is unworthy of protection because he has at some point committed a serious crime – as UNHCR seems to suggest – why contend with the more demanding requirements of seeking to protect a state’s security interests against criminals by means of authorized refoulement under Art. 33(2)? The response usually given498 – that the role of Art. 33(2) is meant to address post-admission criminality (because Art. 1(F)(b) is limited to crimes committed “outside” the asylum state) – is deeply unsatisfactory. As explained in more detail below,499 Art. 33(2) only authorizes removal at a higher 494 495

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See Hathaway and Foster, Refugee Status, at 541–542. Luis Alberto Hernandez Febles v. Minister for Citizenship and Immigration, [2014] SCC 68 (Can. SC, Oct. 30, 2014), at [4]. AH (Algeria) v. Secretary of State for the Home Department, [2015] EWCA Civ 1003 (Eng. CA, Oct. 14, 2015), at [31]. Luis Alberto Hernandez Febles v. Minister for Citizenship and Immigration, [2014] SCC 68 (Can. SC, Oct. 30, 2014), at [35]–[36]; AH (Algeria) v. Secretary of State for the Home Department, [2015] EWCA Civ 1003 (Eng. CA, Oct. 14, 2015), at [28]–[32]. “The exclusion clause now refers to crimes committed ‘prior to his (the refugee’s) admission to that country (i.e. the country of asylum) as a refugee’ while persons who have committed a serious crime in the country of residence remain refugees, but may in certain conditions be denied asylum and returned to their country of origin (Article 33(2) of the Convention)”: P. Weis, “The Concept of the Refugee in International Law,” (1960) 87 Journal du droit international 928, at 984. This approach has been adopted in e.g. Luis Alberto Hernandez Febles v. Minister for Citizenship and Immigration, [2014] SCC 68 (Can. SC, Oct. 30, 2014), at [24]–[25]; UK Home Office, “Exclusion (Article 1F) and Article 33(2) of the Refugee Convention,” July 1, 2016, at 5–6; UNHCR, “Background Note on the Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees,” Sept. 4, 2003, at [10]. See text at note 541 ff.

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standard (“particularly serious crime” and “having been convicted by a final judgment”) than that governing Art. 1(F)(b). As such, this account of the role of Art. 33(2) would make sense only if it is assumed that the drafters saw those who committed a crime on asylum state territory as “less unworthy” of protection than those who committed a crime outside it – a proposition that is both implausible and unsupported.500 Such concerns do not, however, arise if the drafters’ vision of Art. 1(F)(b) – requiring only the exclusion of fugitives from justice501 – is adopted. The comparatively relaxed standard of Art. 1(F)(b) can in this context be seen as a sensible response to the challenges of assessing the nature of common crimes committed abroad and, in particular, the vagaries of prosecution and punishment in a foreign state. This more circumscribed understanding of Art. 1(F)(b) is moreover confirmed by the Refugee Convention’s context,502 as only fugitives from justice are excluded under the cognate provision in all predecessor refugee treaties, the contemporaneously drafted UNHCR Statute, and the Universal Declaration of Human Rights upon which the Refugee Convention was based.503 In practice, however, the invitation to transmute Art. 1(F)(b) into a provision that allows states peremptorily to exclude anyone whose past criminality makes them somehow unworthy can prove nearly irresistible to states. Indeed, the majority of the Supreme Court of Canada departed from its own precedent504 to hold that the mere fact of past criminality justifies summary exclusion under Art. 1(F)(b) because such persons are to be assumed to be “undeserving” of protection: Article 1(F)(b) is not directed solely at fugitives and neither is it directed solely at some subset of serious criminals who are undeserving at the time of the refugee application. Rather, in excluding all claimants who have committed serious non-political crimes, Article 1(F)(b) expresses the contracting states’ agreement that such persons by definition would be undeserving of refugee protection by reason of their serious criminality.505

This sweeping reinterpretation506 essentially allows asylum countries to refuse protection to refugees believed to have committed a serious crime, including 500 502 504

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See Hathaway and Foster, Refugee Status, at 541. 501 Ibid. at 541–542. See generally Chapter 2.2. 503 See Hathaway and Foster, Refugee Status, at 541. Pushpanathan v. Minister of Citizenship and Immigration, [1998] 1 SCR 982 (Can. SC, June 4, 1998), at [58]. Luis Alberto Hernandez Febles v. Minister for Citizenship and Immigration, [2014] SCC 68 (Can. SC, Oct. 30, 2014), at [35]. The decision of the Court’s majority was based largely on the perceived absence of a textual toehold for restricting Art. 1(F)(b) to extraditable criminals: Luis Alberto Hernandez Febles v. Minister for Citizenship and Immigration, [2014] SCC 68 (Can. SC, Oct. 30, 2014), at [35]–[36], an argument also made by Zimmermann and Wennholz, “Article 1 F,” at 597 (“It remains, however, to be considered that the ordinary meaning of the provision provides no indication of any such limitation”). Yet as the dissenting judges

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those who have already been prosecuted and punished, and to do so without any showing that they pose a risk of any kind to the host country. It thus invites governments to do an end run on the carefully framed provisions of Art. 33(2), which authorizes a state to divest itself of protection responsibilities to persons who have been found guilty of serious crimes, but only if safety and security concerns are shown to arise. In avoiding these strictures, the Canadian Supreme Court took comfort in a throwaway comment by the Court of Justice of the European Union that Art. 1(F)(b) operates as “a penalty for acts committed in the past,”507 leading the Canadian court to insist that protection may be summarily denied to anyone “who has ever committed”508 a serious crime. It would, of course, be antithetical to the purposes of refugee protection to send a person back to persecution as some sort of “penalty.” There is also no basis to expand Art. 1(F)(b) beyond fugitives from justice (and only fugitives from justice) since, for reasons described above,509 only their admission poses a risk to the systemic integrity of refugee law – that being the rationale for exclusion under Art. 1(F).510 While there is a critical need also to ensure that asylum states are not left defenseless against refugees who threaten their safety or security, that is the role of the exceptions to the duty of non-refoulement codified in Art. 33(2).

4.1.4.1 Danger to National Security The first category of persons legitimately subject to refoulement comprises those “whom there are reasonable grounds for regarding as a danger to the security of the [reception] country.” The notion of “reasonable grounds”

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in Febles observed, the textual reference to persons who have committed crimes “outside” the country of asylum is in fact consistent with such a limitation (and not with a focus on host state security): ibid. at [105]. In any event, rules of treaty interpretation do not allow deference to literal construction, a point also recognized by the dissenting judges: ibid. at [101]–[116]. See generally Chapter 2.1. B and D v. Germany, Dec. Nos. C-57/09 and C-101/09 (CJEU, Nov. 9, 2010), at [103]. The CJEU nonetheless insisted that Art. 1(F)(b) should not be subverted to address “any danger which a refugee currently poses to the Member State,” since it is “Article 33(2) of the 1951 Geneva Convention [that allows a state to] refoule a refugee where there are reasonable grounds for considering him to be a danger to the community of that Member State”: ibid. at [101]. Luis Alberto Hernandez Febles v. Minister for Citizenship and Immigration, [2014] SCC 68 (Can. SC, Oct. 30, 2014), at [54]. See text at notes 478–484. A risk to systemic integrity was agreed to exist in only two other cases: international criminals and persons who have violated the principles and purposes of the United Nations: Refugee Convention, at Arts. 1(F)(a) and 1(F)(c). See generally Hathaway and Foster, Refugee Status, at 567–598. Drawing on the views of the UNHCR, the Supreme Court of the United Kingdom correctly observed that Art. 1(F) should be “interpreted restrictively and applied with caution”: Al-Sirri v. Secretary of State for the Home Department, [2012] 3 WLR 1265 (UK SC, Nov. 21, 2012), at [16].

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requires “objective”511 evidence; thus “the State concerned cannot act either arbitrarily or capriciously and . . . it must specifically address the question of whether there is a future risk and the conclusion on the matter must be supported by evidence.”512 There is more generally a strong argument that this evidentiary standard should be interpreted to align with the “serious reasons for considering” threshold used in Art. 1(F): while there is a variation in the English text, the original513 French version is identical in both Art. 1(F) and Art. 33(2).514 Under this approach, there are “reasonable grounds” for regarding a particular refugee as a danger to national security only when “clear and convincing”515 or “clear and credible . . . strong”516 evidence has been adduced. More than just “compelling reasons” are required.517 As the English Court of Appeal observed, this test “imposes a demanding hurdle.”518 The drafters did not agree to a precise definition of national security, though it is clear that delegates to the Conference of Plenipotentiaries were particularly concerned about the possibility of Communist infiltration.519 Under the 511 512

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Attorney-General v. Zaoui, [2005] NZSC 38 (NZ SC, June 21, 2005), at [45]. Attorney General v. Zaoui, [2005] 1 NZLR 690 (NZ CA, Sept. 30, 2004), at [133], per Glazebrook J.; varied on other grounds in Attorney-General v. Zaoui, [2005] NZSC 38 (NZ SC, June 21, 2005). In his concurring opinion, Young J. observed that “these words must be interpreted so as to ensure that [the state party] conforms to its obligations under the Refugee Convention and thus in light of the international understanding of what they mean (or imply)”: ibid. at [198]. It is nonetheless true that this standard is, for example, “less stringent than preponderance of the evidence”: In re AH, 2005 BIA Lexis 11 (US AG, Jan. 26, 2005). Ben-Nun, “British-Jewish Roots,” at 111–112. Zimmermann and Wennholz, “Article 33, para. 2,” at 1413. Cardenas v. Canada (Minister of Employment and Immigration), [1994] FCJ 139 (Can. FCTD, Feb. 4, 1994), at [24]; adopted in WAKN v. Minister for Immigration and Multicultural and Indigenous Affairs, (2004) 138 FCR 579 (Aus. FC, Sept. 23 2004), at [52]. Al-Sirri v. Secretary of State for the Home Department, [2012] 3 WLR 1263 (UK SC, Nov. 21, 2012), at [75]. HT v. Land Baden-Württemberg, Dec. No. C-373/13 (CJEU, June 24, 2015), at [75]. AH (Algeria) v. Secretary of State for the Home Department, [2015] EWCA Civ 1003 (Eng. CA, Oct. 14, 2015), at [26]. The Court of Justice of the European Union has noted the logic of a relatively demanding standard in view of the “potentially very drastic” consequences of falling under Art. 33(2): HT v. Land Baden-Württemberg, Dec. No. C-373/13 (CJEU, June 24, 2015), at [81]. “It must be borne in mind that . . . each government had become more keenly aware of the current dangers to its national security. Among the great mass of refugees it was inevitable that some persons should be tempted to engage in activities on behalf of a foreign Power against the country of their asylum, and it would be unreasonable to expect the latter not to safeguard itself against such a contingency”: Statement of Mr. Hoare of the United Kingdom, UN Doc. A/CONF.2/SR.16, July 11, 1951, at 8. See also Statement of Mr. Chance of Canada, ibid.: “In drafting [Art. 33], members of [the Ad Hoc] Committee had kept their eyes on the stars but their feet on the ground. Since that time, however, the international situation had deteriorated, and it must be recognized, albeit with reluctance,

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modern jurisprudential views analyzed earlier,520 however, invocation of a national security argument is appropriate where a refugee’s presence or actions give rise to an objectively reasonable, real possibility of directly or indirectly inflicted substantial harm to the host state’s most basic interests, including the risk of an armed attack on its territory or its citizens, or the destruction of its democratic institutions. A risk to national security is by definition a grave threat.521 It is not sufficient, for example, to assert the importance of safeguarding international relations522 or avoiding political tension523 as the basis for excluding refugees on national security grounds.524 Nor is there any basis in international law for deeming a refugee to pose a threat to national security because property or economic interests might be adversely impacted by his or her presence525 or

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that at present many governments would find difficulty in accepting unconditionally the principle [of non-refoulement].” See Ben-Nun, “British-Jewish Roots,” at 110. See Chapter 3.5.1 at note 680. National security thus does not speak to health-related concerns, which should instead be managed by mandatory treatment, quarantine, or other proportionate constraints on freedom of movement: see note 1161. “[S]tates have a legitimate right under international and EU law to manage their borders, including through measures aimed at curbing risks to public health in the context of the coronavirus pandemic. However, such measures may not prevent non-nationals from seeking protection from persecution . . . States must therefore respect the right to asylum . . . and the principle of non-refoulement vis-à-vis persons who have arrived at their borders seeking international protection”: European Parliament, “Tackling the Coronavirus Outbreak: Impact on Asylum-Seekers in the EU” (2020), at 3. “It must constitute a serious danger rather than a danger of some lesser order”: Zimmermann and Wennholz, “Article 33, para. 2,” at 1417. The US, however, seems to embrace a more sweeping definition, opining that “[a]ny level of danger to national security is deemed unacceptable; it need not be a ‘serious,’ ‘significant,’ or ‘grave’ danger . . . [A]ny nontrivial degree of risk [suffices to] bar eligibility”: In re AH, [2005] BIA Lexis 11 (US AG), Jan. 26, 2005. The Canadian Federal Court of Appeal thus went too far in suggesting that national security encompasses “domestic and international interests of keeping good relations with international partners”: Minister of Public Safety and Preparedness v. Nawal Haj Khalil, [2014] FCA 213 (Can. FCA, Sept. 30, 2014), at [35]. UNHCR, “Advisory Opinion regarding the scope of the national security exception under Article 33(2) of the 1951 Convention,” Jan. 6, 2006, at 5. “Concerns about New Zealand’s reputation can be taken into account [under Art. 33(2)] only if they impinge to such a serious extent on national security that they could fairly be said to constitute a danger to national security”: Attorney General v. Zaoui, [2005] 1 NZLR 690 (NZ CA, Sept. 30, 2004), at [141]; varied on other grounds in Attorney-General v. Zaoui, [2005] NZSC 38 (NZ SC, June 21, 2005). But see Suresh v. Minister of Citizenship and Immigration, 2000 DLR Lexis 49 (Can. FCA, Jan. 18, 2000), reversed on appeal in Suresh v. Canada, [2002] 1 SCR 3 (Can. SC, Jan. 11, 2002). “[T]he ‘security of Canada’ . . . logically extends to situations where the integrity of Canada’s international relations and obligations are affected.” The decision of Venezuelan President Maduro to order the return of Colombian refugees on the grounds of an economic “national emergency” (See text at note 67) thus fails to meet the required international standard. On the other hand, the court in Cheema v.

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because a refugee has arrived in a disorderly way rather than availing himself or herself of legal procedures.526 Much less can national security be said to justify the denial of protection in order to discourage the departure of other persons from the refugee’s country of origin.527 On the other hand, there is no good reason to limit national security concerns to risks aimed directly at the asylum country rather than, for example, to include also a threat against a partner state or community of states that indirectly affects the security of the host country.528 While “under international law the state must prove a connection between the [threatening] activity and the security of the [asylum] country,”529 the traditional notion that national security can be implicated only by evidence of direct impact “limits too tightly

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Immigration and Naturalization Service, Dec. No. 02-71311 (US CA9, Dec. 1, 2003) simply adopted without any analysis a nearly unbounded test of “national security” posited by the Board of Appeals, namely that there is a risk to national security where the individual concerned “(1) endangers the lives, property or welfare of United States citizens; (2) compromises the national defense of the United States; or (3) materially damages the foreign relations or economic interests of the United States [emphasis added].” There is therefore reason to be concerned by the reasoning of the European Court of Human Rights that a state might be justified in summarily expelling refugees who failed without “cogent reasons” to take advantage of “genuine and effective access to means of legal entry, in particular border procedures”: ND and NT v. Spain, Dec. Nos. 8675/15 and 8697/15 (ECtHR, Feb. 13, 2020), at [209], [218]. Nor do arguments tantamount to violenti non fit injuria (“the Court considers that it was in fact the applicants who placed themselves in jeopardy by participating in the storming of the Melilla border fences”: ibid. at [231]) resonate with the permissible grounds for exclusion from protection against refoulement authorized by Art. 33(2) of the Convention. On the salience of the court’s reasoning based on “large numbers and using force” see Chapter 4.1.5 at notes 636–649. In overruling a decision of the Board of Immigration Appeals that no national security threat had been shown in the case of an unauthorized entrant from Haiti, the Attorney General took the unusual step of issuing a “binding determination,” specifically said to be treated as a precedent in future cases, that national security would be compromised by the release on bail of Haitian entrants because this “would tend to encourage further surges of mass migrations from Haiti by sea, with attendant strains on national and homeland security resources”: In re DJ, 2003 BIA Lexis 3 (US AG, Apr. 17, 2003). Incredibly, the Attorney General explicitly advanced a deterrent rationale for his decision, asserting that “surges in such illegal migration by sea injure national security by diverting valuable Coast Guard and DOD resources from counter-terrorism and homeland security responsibilities”: ibid. Lauterpacht and Bethlehem argue that an interpretation of this kind would be “inconsistent with the nature of [the] compromise [between state and individual interests], and with the humanitarian and fundamental character of the prohibition of refoulement,” in consequence of which the national security exemption set by Art. 33(2) “does not address circumstances in which there is a possibility of danger to the security of other countries or to the international community more generally”: Lauterpacht and Bethlehem, “Nonrefoulement,” at [165]. Suresh v. Canada, [2002] 1 SCR 3 (Can. SC, Jan. 11, 2002), at [88]. The general approach of the Canadian Supreme Court was endorsed by the Supreme Court of New Zealand: Attorney-General v. Zaoui, [2005] NZSC 38 (NZ SC, June 21, 2005), at [45].

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the discretion of the executive in deciding how the interests of the state, including not merely military defense but democracy, the legal and constitutional systems of the state, need to be protected.”530 As Zimmermann and Wennholz have noted, [I]f . . . a danger manifestly affects a collectivity of States, such as . . . member states of the EU or of NATO, with a real threat being directed against common institutions created to safeguard vital interests, it is only logical to consider this danger as constituting a potential harm to the most basic interests of every individual member State. In times of globalization, growing interdependence, and striving for multilateral solutions for common security problems, it would appear too narrow to restrict dangers to national security to imminent dangers to the territory, national institutions, and population of a specific single country.531

A more difficult question arises when the threat to the asylum country’s national security takes the form of retaliation by the agent of persecution. The US Board of Immigration Appeals has emphatically asserted that refoulement in order to protect national security is not lawful in such a circumstance: The immigration judge did not find that the applicant himself would seek to undermine the security of the United States. Instead, she found that the decision of the United States to offer [asylum to] the applicant, a high profile person involved in a violent political crisis . . . might involve the United States in that crisis or cause this country to become the target of violent conflict. If our country shelters him, foreign violent opponents of his may well consider our territory an appropriate battleground. We conclude that the immigration judge’s interpretation . . . is flawed. The case law establishes that an alien would properly be considered a danger to the security of the United States when the alien himself poses the danger . . . We have found no authority to support the immigration judge’s interpretation . . . that an alien would properly be considered a danger to the security of the United States when the decision of the United States to grant the alien asylum might encourage others to commit violence against the United States in retaliation for that decision. The purpose of asylum is to protect an individual who is in danger based on, among other things, his political opinion. This purpose would be severely undermined if we denied asylum because some third party who opposed the alien’s political opinion 530

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Secretary of State for the Home Department v. Rehman, [2001] UKHL 47 (UK HL, Oct. 11, 2001), at [17], per Lord Slynn of Hadley. See generally Chapter 3.5.1 at note 673 ff. Zimmermann and Wennholz, “Article 33, para. 2,” at 1416. In contrast, UNHCR appears more tightly wedded to the traditional view, having observed that “Article 33(2) makes no reference to the security of other countries. To justify refoulement under article 33(2), the danger must therefore be a danger to the security of the country of refuge”: UNHCR, “Advisory Opinion regarding the scope of the national security exception under Article 33(2) of the 1951 Convention,” Jan. 6, 2006, at 6.

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contemplated violence against the United States (or the alien himself) in retaliation for granting him the protective relief of asylum.532

While a highly principled position with some support in the drafting history of the Convention,533 on balance this interpretation takes an overly narrow view of the notion of the national security exception to the duty of non-refoulement. It is of course literally true that the refugee is merely the instrumentality triggering the risk to national security, rather than the immediate source of that risk.534 But unlike the exclusion clauses of the Convention, Art. 33(2) is not predicated on any evidence of blameworthiness; it exists rather to enable states to reconcile the duty to protect refugees to their more general obligation to ensure the security of their country and its citizens. As such, if the demanding standard of a true risk to national security is met,535 it is legally irrelevant whether the refugee to be removed voluntarily contributed to the risk or not. For purposes of Art. 33(2), the only question is whether there genuinely is a real chance of a retaliation that poses a risk of substantial harm to the host state’s most basic interests – such as an armed attack on its territory or its citizens, or the destruction of its democratic institutions.536 If these strict criteria are satisfied, the national security exception to the Refugee Convention’s duty of non-refoulement may in principle be invoked, and the refugee required to leave the host state if no less intrusive means of protecting the host country exists. Even where truly vital interests are at stake, a state seeking to rely on the national security exception to the duty of non-refoulement must, of course, undertake a careful assessment of the security threat actually posed by the presence of the particular refugee whose refoulement is being contemplated.537 As the Supreme 532 533

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In re Anwar Haddam, 2000 BIA Lexis 20 (US BIA, Dec. 1, 2000). Concern about excluding a refugee whose presence might give rise to home state retaliation was voiced by the Danish representative to the Conference of Plenipotentiaries (Statement of Mr. Hoeg of Denmark, UN Doc. A/CONF.2/SR.16, July 11, 1951, at 10–11), leading the British delegate to respond without explanation that such a circumstance was not contemplated by Art. 33(2): Statement of Mr. Hoare of the United Kingdom, ibid., at 13. “The national security exception . . . cannot – even in extreme cases – be invoked in order to avoid the risk of retaliation by those who would persecute a refugee . . . In this case it is not, as required by the explicit wording of Art. 33, para. 2, the refugee who constitutes a danger to the national security of the State of refuge, but rather his or her State of origin”: Zimmermann and Wennholz, “Article 33, para. 2,” at 1414. The writers nonetheless concede that general principles of necessity might in cases of grave and imminent peril be invoked to allow the refoulement of a refugee: ibid. at 1415. As Ben-Nun rightly observes, “[n]ational security was never meant to be used as a ‘basket clause’ masking other purposes such as demographic or political considerations. ‘National security’ must not be employed as a tool against perceived threats stemming from ethnicity, skin colour, religion, or changes in the demographic composition of one’s state”: Ben-Nun, “British-Jewish Roots,” at 113. See also Chetail, International Migration Law, at 189. In a cognate context – namely, in response to national security and public order arguments made to avoid refugee responsibility sharing duties under EU law – the Court of Justice of the

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Court of Canada has insisted, it cannot be assumed that a person poses a risk to national security based on the fact of group membership or other affiliation alone; the risk must rather be proved on the basis of fair procedures.538 Because resort to refoulement is a particularized and highly exceptional form of protection for states, a restrictive approach is clearly called for, with the state asserting the danger posed by the refugee logically expected to establish a case for the refugee to answer.539 As

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European Union rightly insisted that “a danger to national security or public order can be invoked by the authorities . . . only if there is consistent, objective and specific evidence that provides grounds for suspecting that the applicant in question actually or potentially represents such a danger . . . and not until those authorities, in respect of each applicant . . . have made an assessment of the facts within their knowledge with a view to determining whether, in the light of an overall examination of all the circumstances of the individual case concerned, such reasonable grounds exist [emphasis added]”: European Commission v. Republic of Poland, Dec. Nos. C-715/17, C-718/17, and C-719/17 (CJEU, Apr. 2, 2020), at [159]. As such, Niger’s summary expulsion of whole groups of Nigerian refugees fleeing Boko Haram – after Boko Haram attacked Niger in retaliation for hosting the refugees (See text at note 66) – was not lawful despite the reality of the threat to national security. “[C]ontrary to the government’s submission, [we would] distinguish ‘danger to the security of Canada’ from ‘danger to the public,’ although we recognize that the two phrases may overlap. The latter phrase clearly is intended to address threats to individuals in Canada, but its application is restricted by requiring that any individual who is declared to be a ‘danger to the public’ have been convicted of a serious offence . . . The government’s suggested reading of ‘danger to the security of Canada’ effectively does an end-run around the requirements of Article 33(2) of the Refugee Convention that no one may be refouled as a danger to the community of the country unless he has first been convicted by a final judgment of a particularly serious crime”: Suresh v. Canada, [2002] 1 SCR 3 (Can. SC, Jan. 11, 2002), at [84]. Despite this guidance, the Canadian Federal Court of Appeal has effectively authorized the refoulement on national security grounds of refugees stigmatized on the basis of no more than their membership of subversive or terrorist groups: see Minister of Public Safety and Emergency Preparedness v. Nawal Haj Khalil, [2014] FCA 213 (Can. FCA, Sept. 30, 2014); Behzad Najafi v. Minister of Public Safety and Emergency Preparedness, [2014] FCA 262 (Can. FCA, Nov. 7, 2014). To avoid such errors, there is wisdom in the advice of the Supreme Court of Canada that it will often make more sense to consider the permissibility of refoulement not on the basis of the national security leg of Art. 33(2), but rather on the basis of the other branch of Art. 33(2), which authorizes refoulement in the case of persons who are shown to pose a danger to the community of their intended host state, but only after final conviction of a particularly serious crime. In NSH v. Secretary of State for the Home Department, [1988] Imm AR 410 (Eng. CA, Mar. 23, 1988), the English Court of Appeal held that the grounds for determining an applicant to be a risk to the national security of a country must in fact be reasonable before protection against refoulement may validly be denied. While the courts cannot expect all evidence to be placed before them, the assertion of risk must be “sufficiently particularized” to substantiate the reasonableness of exclusion. In the view of the New Zealand Court of Appeal, “it is incumbent upon the [state party] to provide as much information as is possible, without risking the disclosure of the classified security information itself”: Attorney General v. Zaoui, [2005] 1 NZLR 690 (NZ CA, Sept. 30, 2004), at [72]; varied on other grounds in Attorney-General v. Zaoui, [2005] NZSC 38 (NZ SC, June 21, 2005). In general terms, “[t]he relevant authorities must specifically address the question of whether there is a future risk [to national security]; and their conclusion on the matter must be supported by evidence”: Lauterpacht and Bethlehem, “Non-refoulement,” at [168].

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recently observed by the Kenyan High Court in rejecting an effort by that country’s government to expel all Somali refugees on national security grounds, The application of Article 33(2) requires an individualized determination by the country in which the refugee is that he or she comes within one of the two categories provided for under Article 33(2) of the 1951 Convention. Thus, this rules out group or generalized application or collective condemnation. Unfortunately, the averment by the Government that the two exceptions . . . are applicable [is] not based on individual consideration or determination to each affected refugee but [is] dangerously generalized in a manner that is akin to collective punishment.540

4.1.4.2 Danger to the Asylum State Community In addition to cases where there is a demonstrable risk to national security, refoulement is also allowed in the case of a refugee who has been “convicted by a final judgment of a particularly serious crime,” and who is determined to constitute “a danger to the community” of the asylum state. In contrast to Art. 1(F)(b) of the Refugee Convention, the purpose of which is to ensure the integrity of the refugee regime by denying extraditable criminals the ability to avoid prosecution and punishment,541 the criminality exclusion set by Art. 33(2) exists to enable host states to protect the safety of their own communities from criminal refugees who are shown to be dangerous.542 This right to engage in the refoulement of dangerous criminals is, however, carefully constrained. First, the gravity of criminality which justifies refoulement under Art. 33(2) – “a particularly serious crime” – is higher than that which justifies the exclusion of fugitives from justice under the “serious” non-political crime rule set by Art. 1(F)(b) of the Convention.543 Only an extraditable crime is appropriately adjudged 540

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Kenya National Commission on Human Rights v. Attorney General, Constitutional Petition No. 227 of 2016 (Ken. HC, Feb. 9, 2017), at 19. See text at notes 509–510. See J. Hathaway and C. Harvey, “Framing Refugee Protection in the New World Disorder,” (2001) 34(2) Cornell International Law Journal 257. In describing the different functions of Art. 1(F)(b) and Art. 33(2) of the Refugee Convention, Lord Mustill observed that the argument that Art. 1(F)(b) should be used to exclude dangerous refugees “overlooks Article 33(2) of the 1951 Convention . . . The state of refuge has sufficient means to protect itself against harbouring dangerous criminals without forcing on an offence, which either is or is not a political crime when and where committed, a different character according to the opinions of those in the receiving state about whether the refugee is an undesirable alien”: T v. Secretary of State for the Home Department, [1996] 2 All ER 865 (UK HL, May 22, 1996), per Lord Mustill. See also Pushpanathan v. Minister of Citizenship and Immigration, [1998] 1 SCR 982 (Can. SC, June 4, 1998), at [73]. Refugee Convention, at Art. 1(F)(b). See generally A. Grahl-Madsen, The Status of Refugees in International Law (vol. I, 1966) (Grahl-Madsen, Status of Refugees I), at 289–304; Hathaway and Foster, Refugee Status, at 537–562; and Goodwin-Gill and McAdam, Refugee in International Law, at 171–184.

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“serious”;544 examples commonly given include acts that involve violence against persons, such as homicide, rape, child molesting, wounding, arson, drugs trafficking, and armed robbery.545 The gravity of harm necessary to justify the refoulement of a person who qualifies for refugee status – expressly framed as a “particularly” serious crime – is clearly higher still,546 and has been interpreted to require that even when the refugee has committed a serious crime, refoulement is only warranted when account has been taken of all mitigating and other circumstances surrounding commission of the offense.547 For example, the Australian Full Federal Court was called upon to consider whether Art. 33(2) was appropriately applied in the case of a person who had been detained by Australia for more than two years before his Convention refugee status was confirmed. By reason of his protracted detention, he began to experience severe paranoid delusions. After his release, and while in a delusional state, he went to an acquaintance’s home armed with a knife and threatened to kill her. He subsequently made further threats against the woman’s life, ultimately resulting in his arrest on one count of aggravated burglary and five counts of threats to kill. He was convicted of those charges and sentenced to a term of three-and-a-half years’ imprisonment. The Court reviewing the decision that refoulement was justified held that the offenses ought not to have been deemed “particularly serious” without consideration of “the fact that it was the appellant’s psychological illness that led to the commission of the offenses. It should have taken into account that the appellant’s conduct was directed to a person whom he believed, as a consequence of his psychological illness, had been conspiring to cause him harm. The Tribunal should have considered the extent to which the psychological illness reduced the moral culpability of the appellant in much the same way as his psychological illness was taken into account in sentencing the appellant for having committed those offenses.” As a general principle, the Court concluded: On its proper construction, Article 33(2) does not contemplate that a crime will be characterized as particularly serious or not particularly serious merely by reference to the nature of the crime that has been committed, although this may suffice in some cases. The reason is that 544

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To constitute a “serious crime” for purposes of Art. 1(F)(b), the facts must show that the act was criminal both where committed and in the asylum state and that it is an extraditable crime as defined by reference to international minimum standards: Hathaway and Foster, Refugee Status, at 549–551. Grahl-Madsen, Status of Refugees I, at 297; Goodwin-Gill and McAdam, Refugee in International Law, at 176–177. The conclusion of a US appellate court that “the offense need not necessarily involve violence in order to qualify” (Lizbeth Patricia Valerio Ramirez v. Attorney General, 882 F. 3d 289 (US CA1, Feb. 18, 2018) thus adopts an overly broad reading of a “particularly serious crime.” Betkoshabeh v. Minister for Immigration and Multicultural Affairs, (1998) 157 ALR 95 (Aus. FC, July 29, 1998), at 102, reversed on grounds of mootness at (1999) 55 ALD 609 (Aus. FFC, July 20, 1999).

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there are very many crimes where it is just not possible to determine whether they are particularly serious without regard to the circumstances surrounding their commission.548

Much the same approach has been adopted in the United Kingdom, where the Asylum and Immigration Tribunal has insisted that “in applying Art. 33(2) to a specific individual, consideration must be taken of the individual circumstances of the commission of the offense.”549 Thus, “Art. 33(2) can only be applied in a fact-sensitive way taking account of all the circumstances of the offence including its nature, gravity and consequences and of the offender, including any aggravating or mitigating factors.”550 Second, while refugee status is to be withheld from persons reasonably suspected of justiciable criminal conduct under Art. 1(F)(b), the refoulement of refugees under Art. 33(2) is permissible only when there has actually been conviction by a final judgment. Appeal rights should therefore have expired or been exhausted,551 548

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Ibid. A finding that remediable psychological illness was at the root of criminal acts may also lead to a finding that the additional requirement to show a “danger to the community” (see text at note 553 ff.) is not satisfied. In the case of a Zimbabwean refugee whose violent tendencies were attributable to schizophrenia that “was fully under control with medication” and whose evidence made it clear that “he was motivated to ensure he continued to receive that medication,” it was determined that “he does not represent a danger to the community in the United Kingdom for the purpose of . . . Article 33(2) of the Refugee Convention”: Secretary of State for the Home Department v. MM (Zimbabwe), [2017] EWCA Civ 797 (Eng. CA, June 22, 2017), at [15]. IH v. Secretary of State for the Home Department, [2009] UKAIT 00012 (UK AIT, Mar. 9, 2009), at [73]. Ibid. at [76]. In contrast to this thoughtful analysis, the US Court of Appeals for the 9th Circuit upheld the view that the conviction for drunk driving of a Mexican transgender woman – whose alcoholism stemmed from years of relentless beatings, sexual assaults, and rape – was a “particularly serious crime”: Edin Carey Avendano Hernandez v. Attorney General, 800 F. 3d 1072 (US CA9, Sept. 3, 2015). In truth, it is highly doubtful that this offense (which resulted in only a term of incarceration of 364 days) was appropriately defined as even a “serious” crime, much less a “particularly serious” crime. More shockingly, the US Board of Immigration Appeals was “not persuaded that any inconsistency exist[ed]” between US and international law on permissible refoulement of serious criminals in finding that the Art. 33(2) exception to the duty of non-refoulement applied to a crime committed under duress (acceding to extortion demands from the Colombian FARC, the proceeds of which funded “terrorism,” after having been attacked by them): Matter of MHZ, 26 I&N Dec. 757 (US BIA, June 9, 2016). Even if this action could somehow be treated as criminal – a doubtful proposition given clear evidence of duress – the failure even to consider the truly extreme circumstances under which funds were provided to FARC is inconsistent with the notion of a “particularly serious” crime, the standard for refoulement under Art. 33(2). As the English Court of Appeal has correctly observed, simple deference to asylum standards of “particularly serious criminality” is not warranted, as “the expression ‘particularly serious crime,’ in an international treaty . . . has autonomous meaning”: EN (Serbia) and KC (South Africa) v. Secretary of State for the Home Department, [2009] EWCA Civ 630 (Eng. CA, June 26, 2009), at [40]. Statement of Mr. Hoare of the United Kingdom, UN Doc. A/CONF.2/SR.16, July 11, 1951, at 14. See also Lauterpacht and Bethlehem, “Non-refoulement,” at [188]: “‘Final judgment’

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limiting the risk of refoulement strictly to those whose criminality has been definitively established in accordance with accepted, general legal norms. As such, if authorities are able to “show that a person who has not been convicted of a particularly serious crime is nonetheless a danger to the community [they] cannot rely on Article 33(2).”552 Third and most important, the nature of the conviction and other circumstances must be found to justify the conclusion that the refugee in fact constitutes a danger to the community553 in which protection is sought.554 The simple fact of conviction does not suffice; rather, as the English Court of Appeal made clear, [I]t is clear that Article 33(2) imposes two requirements on a state wishing to refoule a refugee . . . his conviction by a final judgment of a particularly serious crime and his constituting a danger to the community.555

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must be construed as meaning a judgment from which there remains no possibility of appeal. It goes without saying that the procedure leading to the conviction must have complied with minimum international standards.” EN (Serbia) and KC (South Africa) v. Secretary of State for the Home Department, [2009] EWCA Civ 630 (Eng. CA, June 26, 2009), at [39]. If the crime alleged is serious and the individual concerned has not expiated that criminality, exclusion under Art. 1(F) would nonetheless be available: see text at note 478 ff. See e.g. Ragupathy v. Canada, [2006] FCJ 654 (Can. FCA, Apr. 26, 2006), at [13]. “[I]t is evident that [the word ‘community’] is intended as a reference to the safety and well-being of the population in general, in contrast to the national security exception which is focused on the larger interests of the State”: Lauterpacht and Bethlehem, “Non-refoulement,” at [192]. For example, a proposal to authorize the refoulement of habitual offenders convicted of a series of less serious crimes was not accepted: Statements of Mr. Theodoli of Italy and Mr. Hoare of the United Kingdom, UN Doc. A/CONF.2/SR.16, July 11, 1951, at 16–17. EN (Serbia) and KC (South Africa) v. Secretary of State for the Home Department, [2009] EWCA Civ 630 (Eng. CA, June 26, 2009), at [39]. The Court nonetheless approved of a rebuttable presumption of danger following from a relevant conviction, determining that “once the State has established that a person has been convicted of what is on the face of it a particularly serious crime, it will be for [the refugee] to show either that it was not in fact particularly serious, because of mitigating factors associated with its commission, or that because there is no danger of its repetition he does not constitute a danger to the community”: ibid. at [66]. See also Jeevakaran Ramanthan v. Minister of Immigration, Refugees and Citizenship and Minister of Public Safety and Emergency Preparedness, [2017] FC 834 (Can. FC, Sept. 22, 2017), at [41], finding that “conviction of a serious criminal offence is not, alone, sufficient to conclude that the individual poses a danger to the public.” In contrast, the practice of the United States of automatically equating conviction for a given category of crime with a finding of “dangerousness” (approved in Edson Flores v. Attorney General, 779 F. 3d 159 (US CA2, Feb. 26, 2015), at [13]; and in Lizbeth Patricia Valerio Ramirez v. Attorney General, 882 F. 3d 289 (US CA1, Feb. 15, 2018)) is not sound, as it elides two distinct inquiries. See e.g. Jose Hernandez Nolasco v. Attorney General, 807 F. 3d 95 (US CA4, Dec. 4, 2015), finding that “an alien who has been convicted of a ‘particularly serious crime’ and, thus, ‘is a danger to the community’ is not eligible for withholding of removal” and upholding domestic US law that makes conviction of an “aggravated felony” an automatic basis for the application of Art. 33(2). The “aggravated felony” category in the US can be astoundingly inclusive, resulting, for example, in a finding of removability against a Somali refugee who had fraudulently used food stamp benefits: Jeylani Mowlana v. Attorney General, 2015 US App. Lexis 17182 (US CA8, Sept. 30, 2015).

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The focus of analysis must always be on whether the refugee “is a possible reoffender whose presence . . . creates an unacceptable risk to the public.”556 It thus follows, as observed by the Kenyan High Court, that “the possibilities of rehabilitation and reintegration within society”557 must be considered, as they may negate the required forward-looking assessment of danger to the host community.558 Similarly, where there is evidence that the crime committed was strictly situation-specific and that comparable circumstances do not exist in the host country – for example, the use of a weapon to escape unlawful detention or other persecution – refoulement ought not to be authorized.559 Because danger follows from the refugee’s criminal character, it does not matter whether the crime was committed in the state of origin, an intermediate state, or the asylum state.560 Nor is it relevant whether the claimant has or has not served a penal sentence or otherwise been punished.561 On the other hand, refoulement is appropriately authorized only as a last resort562 where there is no alternative mechanism to protect the community in the country of asylum 556

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558 559

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561 562

Jeevakaran Ramanthan v. Minister of Immigration, Refugees and Citizenship and Minister of Public Safety and Emergency Preparedness, [2017] FC 834 (Can. FC, Sept. 22, 2017), at [40]. Kenya National Commission on Human Rights v. Attorney General, Constitutional Petition No. 227 of 2016 (Ken. HC, Feb. 9, 2017), at [19]. Accord Zimmermann and Wennholz, “Article 33, para. 2,” at 1421. The English Court of Appeal determined that once evidence of conviction of a particularly serious crime has been presented, the refugee can nonetheless avoid refoulement by showing inter alia “that because there is no danger of its repetition, he does not constitute a danger to the community”: EN (Serbia) and KC (South Africa) v. Secretary of State for the Home Department, [2009] EWCA Civ 630 (Eng. CA, June 26, 2009), at [66]. “Moreover, the possibility of a refugee committing a crime in a country other than his country of origin or his country of asylum could not be ignored. No matter where a crime was committed, it reflected upon the personality of the guilty individual, and the perpetrator was always a criminal . . . The President pointed out that paragraph 2 [of Article 33] afforded a safeguard for States, by means of which they could rid themselves of common criminals or persons who had been convicted of particularly serious crimes in other countries”: Statements of Mr. Rochefort of France and Mr. Larsen of Denmark, UN Doc. A/CONF.2/SR.35, July 25, 1951, at 24. But see Lauterpacht and Bethlehem, “Non-refoulement,” at [149]. Because the authors do not recognize Art. 1(F)(b) as restricted to justiciable criminality, they argue that the need to avoid overlap between Arts. 1(F)(b) and 33(2) compels the conclusion that the latter speaks only to crimes committed after admission to a state party as a refugee. Accord Zimmermann and Wennholz, “Article 33, para. 2,” at 1421. Thus, “the danger involved is not a present or future danger that a person may commit a crime as that can be dealt with by the ordinary criminal law”: Attorney General v. Zaoui, [2005] 1 NZLR 690 (NZ CA, Sept. 30, 2004), at [167]; varied on other grounds in Attorney-General v. Zaoui, [2005] NZSC 38 (NZ SC, June 21, 2005). This is in line with the view of the drafters of the Refugee Convention. For example, “the Swiss Government wished to reserve the right in quite exceptional circumstances to expel an undesirable alien, even if he was unable to proceed to a country other than the one from which he had fled, since the Federal Government might easily find itself so placed that there was no other means of getting rid of an alien who had seriously compromised himself”: Statement of Mr. Schurch of Switzerland, UN Doc. E/AC.32/SR.40, Aug. 22, 1950, at 32.

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from an unacceptably high risk of harm.563 The practice of some states to give dangerous refugees the option of indefinite incarceration in the asylum state as an alternative to refoulement is therefore one mechanism to be considered, since it protects the host community, yet averts the risk of being persecuted.564 In the end, however, the Refugee Convention accepts that in extreme and genuinely exceptional cases, the usual considerations of humanity must yield to the critical security interests of the receiving state.565 As observed in the Full Federal Court of Australia, Article 33(2) describes the serious conditions that justify the return of a refugee to a place where he or she may face persecution. Article 33(2) and the circumstances within it reflect the balance contained within the Refugee Convention between protection of those who need it, and the legitimate entitlement of Contracting States not to be required to give protection to those who pose a danger to the host state and its people.566

4.1.4.3 No Balancing Requirement Because Art. 33(2) allows states to contemplate refoulement in only clear and extreme cases,567 there is no additional proportionality requirement to be met: by 563 564

565

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HT v. Land Baden-Württemberg, Dec. No. C-373/13 (CJEU, June 24, 2015), at [71]. The drafters of the Convention, however, assumed this option to be no better than refoulement. “To condemn such persons to lifelong imprisonment, even if that were a practicable course, would be no better solution”: Statement of Mr. Hoare of the United Kingdom, UN Doc. A/ CONF.2/SR.16, July 11, 1951, at 8. This option has moreover been opposed by Zimmermann and Wennholz, who observe that “indefinite detention . . . is a means not provided for in the 1951 Convention. As such a measure would severely affect personal liberty . . . it appears hardly conceivable to apply it as a ‘minus’ to refoulement . . . Establishing it as a ‘voluntary’ alternative option to permitted refoulement . . . would hardly be a solution . . . since justification of an encroachment upon personal liberty by consent presupposes a decision based on free will”: Zimmermann and Wennholz, “Article 33, para. 2,” at 1422. While it is of course true that opting for detention as an alternative to refoulement (for the duration of risk in the country of origin, unless the refugee subsequently opts instead for refoulement) is far from ideal, the net result of the Zimmermann and Wennholz critique seems to be that the asylum state would be effectively left with no choice under the Refugee Convention but to proceed to refoulement (at least, unless some other state proves willing to receive the criminal refugee). From a human rights optic this seems a worse result than offering even a less-than-truly-voluntary option of detention in the asylum country. Any ongoing detention would, of course, have to meet the requirements of applicable international human rights law, including in particular the prohibition of arbitrary detention under Art. 9 and the duty to treat persons deprived of their liberty with humanity and dignity under Art. 10 of the Civil and Political Covenant: see Chapter 4.2.4. “A State would always be in a position to protect itself against refugees who constituted a danger to national security or public order”: Statement of Msgr. Comte of the Holy See, UN Doc. E/CONF.2/SR.16, July 11, 1951, at 5. NBMZ v. Minister for Immigration and Border Protection, [2014] FCAFC 38 (Aus. FFC, Apr. 9, 2014), at [21], per Allsop C.J. and Katzmann J. concurring. “The Chairman realized that the presence of particularly intractable refugees might cause certain difficulties in certain reception countries. Nevertheless, it was for the governments

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definition, no purely individuated risk of persecution can offset a real threat to such critical interests of the receiving state. So long as national security or danger arising from particularly serious criminality is conceived in line with the admonition of the drafters to interpret those notions restrictively “so as not to prejudice the efficiency of the article as a whole,”568 a clear risk to such vital collective interests defeats the refugee’s right to invoke the duty of non-refoulement. Most writers have taken a contrary position,569 relying largely on a single comment of the British co-sponsor of the particularized refoulement provision.570 Yet the British reference to the importance of letting states weigh relative risks was actually an answer to a proposal to restrict states’ margin of appreciation,571 not an argument for a super-added proportionality test. Indeed, the British representative associated himself with his French co-sponsor’s explanation of the rationale for the particularized refoulement clause: The French and United Kingdom delegations had submitted their amendment in order to make it possible for states to punish activities . . . directed against national security or constituting a danger to the community . . . The right of asylum rested on moral and humanitarian considerations which were freely recognised by receiving countries, but it had certain essential limitations. A country could not contract an unconditional obligation towards

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of those countries to find the means of making reservations to meet special cases, while accepting the principle, which applied to all civilized nations, of not expelling refugees to territories where they would meet certain death”: Statement of the Chairman, Mr. Chance of Canada, UN Doc. E/AC.32/SR.20, Feb. 1, 1950, at 15. Statement of Mr. Hoare of the United Kingdom, UN Doc. A/CONF.2/SR.16, July 11, 1951, at 8. See Robinson, History, at 164; Weis, Travaux, at 342; UNHCR, “Advisory Opinion regarding the scope of the national security exception under Article 33(2) of the 1951 Convention,” Jan. 6, 2006, at 6–8; Zimmermann and Wennholz, “Article 33, para. 2,” at 1419–1420. “It must be left to States to decide whether the danger entailed to refugees by expulsion outweighed the menace to public security that would arise if they were permitted to stay”: Statement of Mr. Hoare of the United Kingdom, UN Doc. A/CONF.2/SR.16, July 11, 1951, at 8. Rather than invoking this comment, Zimmermann and Wennholz ground their plea for proportionality in part on the fact that other human rights duties may preclude removal: Zimmermann and Wennholz, “Article 33, para. 2,” at 1419–1420. In the (more limited) circumstances in which a countervailing human rights duty (e.g. the prohibition of return to torture under Art. 3 of the Torture Convention) applies, a state party must of course comply with that additional duty notwithstanding whatever rights it has under Art. 33(2) of the Refugee Convention. It is thus not accurate to suggest that the approach advanced here “leaves no room for taking into account the refugee’s rights . . . [and] is in any case at odds with basic principles of human rights protection”: ibid. at 1420. But the existence of these other obligations is not the basis for asserting that “basic principles of human rights protection” (ibid.) justify any such additional test being deemed part of Art. 33(2). “What was meant for example by the words ‘reasonable grounds’? He considered that the wording: ‘may not, however, be claimed by a refugee who constitutes a danger to the security of the country’ would be preferable [emphasis in original]”: Statement of Msgr. Comte of the Holy See, ibid. at 7–8.

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persons over whom it was difficult to exercise any control, and into the ranks of whom undesirable elements might well infiltrate. The problem was a moral and psychological one, and in order to solve it, it would be necessary to take into account the possible reactions of public opinion.572

This conviction that the establishment and maintenance of a relatively open refugee protection system requires a strong safeguard of the basic security interests of receiving states was precisely the reason that the Conference of Plenipotentiaries rejected the Ad Hoc Committee’s unconditional insistence on strict observance of the duty of non-refoulement.573 Appearances notwithstanding, insistence that risks to national security or dangers to the host community be “balanced” against the consequences of returning a refugee has in any event actually worked against the interests of many refugees concerned. This is because, in practice, the suggestion that there are some individuated forms of harm that could be more compelling than national security or danger to the community of reception has trivialized the significance of the latter two concepts and justified an unacceptably broad reading of the scope of Art. 33(2). In holding a “balancing test” to be mandated by Art. 33(2), the English Court of Appeal, for example, authorized the government to construe relatively minor concerns as matters of national security or communal danger: [T]he Secretary of State argues that on the plain wording of the Article a refugee may be expelled or returned even to a country where his life or freedom would be threatened, and that no balancing exercise is necessary; expulsion or return is permitted even where the threat to life or freedom is much more serious than the danger to the security of the country . . . Despite the literal meaning of Article 33, it would seem to me quite wrong that some trivial danger to national security should allow expulsion or return in a case where there was a present threat to the life of the refugee if that took place [emphasis added].574

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Statement of Mr. Rochefort of France, ibid. at 7. “The President thought that the Ad Hoc Committee, in drafting article [33], had, perhaps, established a standard which could not be accepted. That Committee, as could be seen from its report on its second session, had felt that the principle inherent in article [33] was fundamental, and that it could not consider any exceptions to the article”: Statement of the President, Mr. Larsen of Denmark, ibid. at 13. Secretary of State for the Home Department, ex parte Chahal, [1994] Imm AR 107 (Eng. CA, Oct. 22, 1993), per Straughton L.J., violation found in Chahal v. United Kingdom, (1996) 23 EHRR 413 (ECtHR, Nov. 15, 1996). The decision of the Court of Appeal unfortunately rejected the earlier reasoning of the same court in NSH v. Secretary of State for the Home Department, [1988] Imm AR 410 (Eng. CA, Mar. 23, 1988): “It may be that in many cases, particularly where a case is near the borderline, the Secretary of State will weigh in the balance all the compassionate circumstances, including the fact that the person is a refugee. But where national security is concerned I do not see that there is any legal requirement to take this course. Indeed Article 33(2) of the Convention provides that

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The very notion that there could be any such thing as a “trivial danger to national security” to be balanced against purely individuated interests is disturbing.575 This decision shows how assertion of the importance of a “balancing test” inadvertently legitimates an unwarranted extension of the scope of the security-based exception to the duty of non-refoulement.576 If, in contrast, national security and danger to the community are more carefully constrained as described here, it is readily apparent that they would always trump purely individuated risks, in consequence of which no super-added balancing test is required or appropriate. Jurisprudence on cognate obligations affirms the view that Art. 33(2) is to be interpreted without importation of a “balancing” test. The European Court of Human Rights, for example, rejected the UK’s plea to balance in the opposite direction – specifically, that the duty of non-return under Art. 3 of the European Convention on Human Rights should be balanced against the risk to its security interests – pointing out the intellectual incoherence of balancing metaphorical “apples and oranges”: The concepts of “risk” and “dangerousness” in this context do not lend themselves to a balancing test because they are notions that can only be assessed independently of each other. Either the evidence adduced before the Court reveals that there is a substantial risk if the person is sent back or it does not. The prospect that he may pose a serious threat to the community if not returned does not reduce in any way the degree of risk of ill treatment that the person may be subject to on return.577

In the specific context of the Refugee Convention, virtually all leading courts have similarly rejected the argument that the right of states to exclude refugees under Art. 1(F)(b) is subject to a duty to “balance” the degree of a refugee’s

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a refugee cannot claim the benefit of Article 33(1) where there are reasonable grounds for regarding him ‘as a danger to the security of the country in which he is.’” Zimmermann and Wennholz concur, noting that “anything such as a minor or trivial danger to national security is hardly imaginable”: Zimmermann and Wennholz, “Article 33, para. 2,” at 1417. Indeed, in arguing for a proportionality test, Zimmermann and Wennholz fall into precisely this trap, arguing that otherwise the presence of a person who had only engaged in “fundraising” for terrorist purposes might be found to “constitute a danger to national security,” leading to his return to the risk of being persecuted: ibid. at 1420. It is, however, difficult to imagine how the presence of such a person could give rise to an objectively reasonable, real possibility of directly or indirectly inflicted substantial harm to the host state’s most basic interests, including the risk of an armed attack on its territory or its citizens, or the destruction of its democratic institutions. To the contrary, a positive contribution to security might follow from the refugee’s removal from the sphere in which he was able to raise funds to support terrorism (and if he were to engage in such activities in the asylum state, he could readily be prosecuted and imprisoned if found guilty). Saadi v. Italy, (2009) 49 EHRR 30 (ECtHR [GC], Feb. 28, 2008), at [139].

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criminality against the gravity of the persecution feared.578 Drawing on early Canadian case law that simply rejected any duty to balance579 and comments in the House of Lords suggesting that the character of a crime “cannot depend on the consequences which the offender may afterwards suffer if he is returned,”580 the New Zealand Court of Appeal determined that the notion of a duty to balance criminality with the degree of persecution anticipated is both illogical and unfair: It is not easy to grasp the concept that the same offending may or may not be serious depending upon the level or degree of persecution expected to be suffered in the homeland. Acceptance of the concept would mean that in some circumstances Applicant A would be excluded from the Convention provisions . . . but Applicant B, who had committed an identical crime and bears the same culpability in the eyes of the law, would not . . . Whether a crime is to be categorised as serious is to be determined by reference to the nature and details of the particular offending, and its likely penal consequences. It does not depend upon, nor does it involve, a comparative assessment of its own gravity with the gravity of the perceived persecution if return to the homeland eventuates.581

Similarly, the US Supreme Court determined that “[a]s a matter of plain language, it is not obvious that an already-completed crime is somehow rendered less serious by considering the further circumstance that the alien may be subject to persecution if returned to his home country.”582 The Full Federal Court of Australia chimed in, finding that “[t]here is no textual or contextual basis for reading into Art. 1(F)(b) an additional requirement of a balancing test nor would such a requirement be justified on the basis that it is giving effect to the purpose or object of Art. 1(F)(b).”583 And most recently the Court of Justice of the European Union agreed, finding that “[s]ince the competent authority has already, in its assessment of the seriousness of the acts committed by the person concerned and of that person’s individual responsibility, taken into account all the circumstances surrounding those 578 579

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See generally Hathaway and Foster, Refugee Status, at 562–567. Malouf v. Canada, [1995] 1 FC 537 (Can. FCTD, Oct. 31, 1994); affirmed in Xie v. Canada, [2005] 1 FCR 304 (Can. FCA, June 30, 2004); affirmed in obiter dicta in Pushpanathan v. Minister of Citizenship and Immigration, [1998] 1 SCR 982 (Can. SC, June 4, 1998). T v. Immigration Officer, [1996] AC 742 (UK HL, May 22, 1996), at 769, per Lord Mustill. S v. Refugee Status Appeals Authority, [1998] 2 NZLR 291 (NZ CA, Apr. 2, 1998), at 296, 300. The New Zealand Supreme Court has more recently affirmed this view, finding that “the gravity of the offending [is not] to be balanced against the risk of persecution if the claimant is returned home”: Attorney General v. Tamil X, [2011] 1 NZLR 721 (NZ SC, Aug. 27, 2010), at [87]. INS v. Aguirre Aguirre, (1999) 526 US 415 (US SC, May 3, 1999), at 426. NABD of 2001 v. Minister for Immigration and Multicultural Affairs, [2002] FCAFC 326 (Aus. FFC, Oct. 31, 2002), at [41].

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acts and the situation of the person, it cannot . . . be required . . . to undertake an assessment of proportionality, implying as it does a fresh assessment of the level of seriousness of the acts committed.”584 The Supreme Court of New Zealand has led the way in applying much the same reasoning to reject an argument for a balancing requirement to be required under Art. 33(2). The Court began by observing the same logical challenge identified in responding to arguments for “balancing” in other contexts: The decision-maker would have to measure against one another two matters which are very difficult to relate: the level of threat to the life or liberty of an individual, on the one side, and, on the other, the level of reasonably perceived danger to the security of the State. While the law may sometimes appear to require such weighing, such an interpretation is to be avoided unless it is plainly called for.585

After a detailed review of plain meaning, context, state practice, relevant rules of international law, the drafting history, and scholarly commentaries, the Supreme Court concluded succinctly – and in line with the views taken in relation to similar arguments in cognate contexts – that the judgment or assessment to be made under article 33.2 is to be made in its own terms, by reference to danger to the security, in this case, of New Zealand, and without any balancing or weighing or proportional reference to the matter dealt with in article 33.1, the threat, were [the refugee] to be expelled or returned, to his life or freedom on the proscribed grounds . . .586

4.1.5 Qualified Duty in the Case of Mass Influx? Every few years, an asylum state closes its borders to refugees on the grounds that it is faced with a “mass influx”587 with which it cannot cope. Turkey closed 584

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B and D v. Germany, Dec. Nos. C-57/09 and C-101/09 (CJEU, Nov. 9, 2010), at [108]–[109]. Attorney-General v. Zaoui, [2005] NZSC 38 (NZ SC, June 21, 2005), at [27]. Ibid. at [42]. “[M]ass influx is a phenomenon that has not been defined, but . . . for the purposes of this Conclusion, mass influx situations may, inter alia, have some or all of the following characteristics: (i) considerable numbers of people arriving over an international border; (ii) a rapid rate of arrival; (iii) inadequate absorption or response capacity in host States, particularly during the emergency; (iv) individual asylum procedures, where they exist, which are unable to deal with the assessment of such large numbers”: UNHCR Executive Committee Conclusion No. 100, “Conclusion on International Cooperation and Burden and Responsibility Sharing in Mass Influx Situations” (2004), at [(a)]. This is actually quite a fungible standard since “[t]here is neither a minimum number, nor speed of arrival, for a ‘mass influx’”: A. Edwards, “Temporary Protection, Derogation and the 1951 Refugee

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its border to Kurdish refugees from Iraq in 1991;588 first Zaïre, and then Tanzania, closed their borders in 1994–1995 to refugees in flight from Hutu– Tutsi conflict;589 Macedonia closed its border to refugees attempting to flee Kosovo in 1999;590 Pakistan closed its borders to Afghan refugees in 2000;591 Kenya closed its border to refugees fleeing war in Somalia in 2007;592 despite admitting hundreds of thousands of refugees from Syria, Jordan closed its border to Palestinians fleeing Syria in 2012;593 and Croatia, Hungary, Macedonia, Serbia, and Slovenia closed their borders to Syrian and other refugees in 2016.594 This pattern suggests that states believe that they are entitled to take what is clearly a draconian measure in order to safeguard their national interests. Yet in truth, such generalized border closures are irreconcilable to the two bases for permissible refoulement set by Art. 33(2),595 each of which requires an individuated assessment of risk – a logistical impossibility for a state confronted with truly massive numbers of refugees. As a report prepared for the UNHCR observes, “[t]he obligation to offer asylum may . . . directly conflict with a state’s claim to sovereignty, especially if the claim is made that a mass influx will threaten the security (even the very survival) of the nation-state.”596 One answer is that border closures in the face of a mass influx are simply illegal:597 Art. 33(2) provides two exceptions to a fundamental norm of international refugee law and must therefore be understood to speak exhaustively to the scope of lawful refoulement. This is essentially the position of the UNHCR, which invokes Executive Committee Conclusion No. 22 as authority for the view that even in situations of mass influx, “the fundamental principle of nonrefoulement – including non-rejection at the frontier – must be scrupulously observed.”598 Conclusion No. 22 nonetheless seeks to soften the blow by offering states faced with a mass influx the authority to suspend some Convention rights. Specifically, it purports to bless an indefinite delay of the regularization of status599 and, therefore, access to the rights that accrue upon Convention,” (2012) 13(2) Melbourne Journal of International Law 595 (Edwards, “Temporary Protection”), at 603. 588 589 590 See text at note 10. See text at note 11. See text at note 12. 591 592 593 See text at note 13. See text at note 14. See text at note 16. 594 See text at note 21. 595 See text at note 511 ff. (regarding danger to national security) and at note 541 ff. (regarding danger to the security of the community of the asylum state). 596 Long, “Review of UNHCR’s Response,” at [7]. 597 Goodwin-Gill and McAdam, for example, suggest that the duty of non-refoulement must be respected “no matter how debilitating a sudden influx of refugees might be on a State’s resources, economy, or political situation”: Goodwin-Gill and McAdam, Refugee in International Law, at 336. 598 UNHCR Executive Committee Conclusion No. 22, “Protection of Asylum-Seekers in Situations of Large-Scale Influx” (1981), at [II(A)(2)]. 599 Ibid. at [II(B)(2)].

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lawful presence – including, for example, the right to undertake selfemployment. Even more seriously, Conclusion No. 22 seems to take away even some rights owed to refugees as soon as they come under the jurisdiction of a state party600 – for example, the right to access courts and for refugee children to receive elementary education. Refugees arriving as part of a mass influx are essentially treated as a class apart.601 The problem with this answer to the challenges of mass influx is that while Executive Committee Conclusion No. 22 is properly regarded as context to be taken into account in interpreting the Refugee Convention,602 it actually does more than simply interpret the Convention; it purports instead tacitly to amend the Convention by authorizing the withholding of rights on terms not authorized by the treaty – a course of action that is not lawful.603 The UNHCR has consistently hewed closely to the “indefinite suspension of some rights” approach proposed in Conclusion No. 22.604 But in tacit recognition that the Executive Committee’s list of rights that can be suspended by a state faced with a mass influx is not in line with Convention requirements, the agency has elaborated guidelines defining an expanded list of “minimum standards of treatment.”605 This list of the rights due to persons subject to what UNHCR calls “temporary protection,”606 while clearly an improvement on the approach of Conclusion No. 22, is unfortunately framed in exceedingly 600 601

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Ibid. at [II(B)(2)]. A UNHCR discussion paper concedes that “[t]emporary protection is not a protection scheme replacing the 1951 Convention or obligations arising thereunder (except in crisis/ mass influx situations in the initial phases) [emphasis added]”: UNHCR, “Roundtable on Temporary Protection: Discussion Paper, Division of International Protection,” July 7, 2012, at 12. Indeed, the Executive Committee has determined that as temporary protection is “a specific provisional protection response to situations of mass influx providing immediate emergency protection from refoulement, [it] should be clearly distinguished from other forms of international protection”: UNHCR Executive Committee Conclusion No. 103 (2005), at [l]. See Chapter 2.2 at note 80. While it is sometimes suggested that Conclusion No. 22 was initially meant to speak only to non-party states, “it has been recalled on many subsequent occasions to apply to refugees in the territories of both [party] and non-party states”: Edwards, “Temporary Protection,” at 625. UNHCR, “Guidelines on Temporary Protection or Stay Arrangements,” Feb. 2014, at [16]. Ibid. The label is in truth a misnomer since the proposed status has no clear endpoint and is thus not truly defined by its temporariness. The alternate regime proposed by UNHCR is more accurately defined by subjection to a qualitatively inferior regime – hence perhaps “minimal” or “alternative” protection would be a more candid label than “temporary” protection. This approach has been taken since 2004: UNHCR, “Protection and Cooperation in Mass Influx Situations,” UN Doc. EC/54/SC/CRP.11, at [6]. For a history of the agency’s use of the “temporary protection” term, see UNHCR, “Roundtable on Temporary Protection: Discussion Paper, Division of International Protection,” July 7, 2012, at [1]–[4].

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vague language.607 Nor is there any guarantee that the suspension of access to regularization must at some point come to an end; rather, the Guidelines simply observe that “[i]n cases of extended stay, or where transition to solutions is delayed, the standards of treatment would need to be gradually improved.”608 The UNHCR’s approach is problematic in at least two key ways. First, the agency’s principled effort to attenuate the risks to refugees that reliance on Conclusion No. 22 entails has ironically resulted in a catalog of duties for states faced with a mass influx that, even if short of compliance with the Convention, is nonetheless quite daunting – including not only the duty of non-refoulement, but more than a dozen other rights.609 As such, it is difficult to see how this approach meets the concerns of states that have been demonstrably prepared simply to close their borders to a mass influx of refugees. Second, the agency is even less well-placed than the Executive Committee to authorize states to ignore or suspend any obligation under the Convention; it may supervise the application of the Convention,610 but it is not entrusted with the power to vary the obligations of states, no matter how dire the circumstances. Edwards has proposed an answer to this legal conundrum by drawing on Art. 9 of the Refugee Convention which, as previously analyzed,611 allows a state to take essential measures to protect national security “in time of war or other grave and exceptional circumstances.”612 While intended primarily to enable states at war to intern refugee claimants until their status could be assessed, the textual scope of Art. 9 is broad – suggesting that in an appropriate case a state might suspend any of the rights in the Convention. Edwards thus contends that Art. 9 might be the place613 to ground the right of states to 607

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For example, there is no more than a general reference to “self-sufficiency or work opportunities” and to “education,” standards that are a far cry from the specificity of cognate duties under the Refugee Convention. There is moreover no provision for access to the courts; rather there is only “access to UNHCR and, as appropriate, other relevant international organizations and non-governmental organizations and civil society”: UNHCR, “Guidelines on Temporary Protection or Stay Arrangements,” Feb. 2014, at [16]. Despite the agency’s insistence that temporary protection is “without prejudice to the obligations of States under international law, including particularly the 1951 Refugee Convention” (ibid. at [8]) it is difficult to see these standards as compliant with the Convention. Ibid. at [17]. See also UNHCR, “Roundtable on Temporary Protection: Discussion Paper, Division of International Protection,” July 7, 2012, at [15] (“Rights should improve over time”). UNHCR, “Guidelines on Temporary Protection or Stay Arrangements,” Feb. 2014, at [16]. See also UNHCR, “Roundtable on Temporary Protection: Discussion Paper, Division of International Protection,” July 7, 2012, at [12]–[13]. See Chapter 1.5.2 at note 212 ff. and Chapter 2.2 at note 86. 611 See Chapter 3.5.1. Refugee Convention, at Art. 9. Edwards, “Temporary Protection,” at 624. Edwards also invokes Art. 8 (“exemption from exceptional measures”). Art. 8 is not, however, a source of state discretion over refugees but a

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derogate from Convention duties when confronted with a mass influx.614 There are, however, problems with this approach. First, Art. 9 authority must be exercised on an individuated basis (“which it considers to be essential in the case of a particular person”).615 Second, Art. 9 is explicitly provisional (“pending a determination by the Contracting State that that person is in fact a refugee”), thus requiring the state invoking it to proceed to assess status – precisely what countries faced with a mass influx allege the circumstances prevent them from doing.616 Painfully aware of the prisoner’s dilemma that the arrival of a “mass influx” could pose for asylum countries, the drafters debated how best to accommodate the critical public order and national security concerns that might arise.617

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prohibition of applying to refugees general measures that would be imposed on foreign nationals. It requires that refugees always be exempted from such general measures, and is not predicated on any showing that the exceptional measures be discriminatory (but see ibid. at 622). Nor is her appeal to various ways in which states have acquiesced in rights suspension by other countries in the context of a mass influx demonstrative of “subsequent agreement . . . that the Convention impliedly permits the derogation of certain rights” (ibid. at 627–628) convincing. As observed by Judge Winiarski, “[i]t is sometimes difficult to attribute any precise legal significance to the conduct of the contracting parties, because it is not always possible to know with certainty whether they have acted in a certain manner because they consider that the law so requires or allows, or for reasons of expediency”: Certain Expenses of the United Nations, [1962] ICJ Rep 151, at 232 (Dissenting Opinion – on another proposition – of Judge Winiarski). See generally Chapter 2.4. Edwards excludes suspension of the duty of non-refoulement under Art. 9 on the basis of the non-derogable character of Art. 33: Edwards, “Temporary Protection,” at 624. The same result is reached on an arguably more solid ground by Cantor, who contends that the provisional nature of the Art. 9 authority makes it an unwieldy basis to inflict the permanent harm of refoulement: D. Cantor, “Laws of Unintended Consequence: Nationality, Allegiance, and the Removal of Refugees during Wartime,” in D. Cantor and J. Durieux eds., Refuge from Inhumanity: War Refugees and International Humanitarian Law 345 (2014), at 368. Edwards’ effort to read away this language on the grounds that many Convention rights that accrue to individuals are in practice granted on a group basis is unconvincing since there is of course no protection downside in such cases. The only example she cites of a putative groupbased disfranchisement is the cessation clause of Art. 1(C)(5)–(6) which she contends “ha[s] most commonly been applied to groups of refugees”: Edwards, “Temporary Protection,” at 624. This example does not, however, support Edwards’ position. While a state may lawfully require refugees to respond to prima facie evidence of a fundamental and durable change that restores protection, cessation may not lawfully be imposed on a group basis: see Hathaway and Foster, Refugee Status, at 485; and Chapter 7.1. UNHCR has observed that in large-scale influxes, “individual status determination is either not applicable or feasible, or both”: UNHCR, “Guidelines on Temporary Protection or Stay Arrangements,” Feb. 2014, at [10]. The Swiss and French delegations to the Conference of Plenipotentiaries appear initially to have argued that non-refoulement proscribes the expulsion of refugees from within a state’s territory, but not the refusal of admission: Statement of Mr. Zutter of Switzerland, UN Doc. A/ CONF.2/SR.16, July 11, 1951, at 6; and Statement of Mr. Rochefort of France, ibid. On closer examination, however, it is clear that their intention was not to endorse the routine refoulement of refugees, but rather only to authorize states to defend their frontiers in the event of a

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The British618 and Swiss619 delegates to the Ad Hoc Committee argued that the Convention should recognize the traditional prerogative of states to engage in refoulement where required by vital national security interests.620 In contrast, France621 and the United States asserted that “it would be highly undesirable to suggest in the text . . . that there might be cases, even highly exceptional cases, where a [refugee] might be sent to death or persecution.”622 The latter view prevailed in the Ad Hoc Committee, resulting in a draft article that made no mention of any right to engage in refoulement under any circumstances.623 At the Conference of Plenipotentiaries, however, the President observed that the work of the preparatory Ad Hoc Committee had set perhaps too absolute a standard of respect for non-refoulement.624 Switzerland and the

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threat to their national security engendered by a mass migration of refugees: “The Swiss Government considered that in the present instance the word [‘return’] applied solely to refugees who had already entered a country, but were not yet resident there. According to that interpretation, States were not compelled to allow large groups of persons claiming refugee status to cross [their] frontiers [emphasis added]”: Statement of Mr. Zutter of Switzerland, ibid. See also Statement of Baron van Boetzelaer of the Netherlands, ibid. at 11: “He appreciated the importance of the basic principles underlying article [33] but, as a country bordering on others, was somewhat diffident about assuming unconditional obligations so far as mass influxes of refugees were concerned [emphasis added].” “National security was a consideration which should take precedence over all others”: Statement of Sir Leslie Brass of the United Kingdom, UN Doc. E/AC.32/SR.20, Feb. 1, 1950, at 4. “The United Kingdom Government had no thought of acting harshly in such cases and hoped indeed that the mere existence of the power to expel a man making trouble might serve to keep his behaviour within reasonable bounds”: Statement of Sir Leslie Brass, UN Doc. E/AC.32/SR.40, Aug. 22, 1950, at 30. Statement of Mr. Schurch of Switzerland, UN Doc. E/AC.32/SR.40, Aug. 22, 1950, at 32. Similar concerns were raised by Venezuela, which “had experienced disturbances, accompanied by violence, in which refugees from various countries had taken part; the people of Venezuela had suffered a great deal during and following those upheavals and they would not accept a convention for refugees which contained any provisions that would prevent them from defending their own institutions. It should be possible to expel all aliens, whether refugees or not, from the territory of a State [if] public order in that State was threatened”: Statement of Mr. Perez Perozo of Venezuela, UN Doc. E/AC.32/SR.20, Feb. 1, 1950, at 8. “[A]ny possibility, even in exceptional circumstances, of a genuine refugee . . . being returned to his country of origin would not only be absolutely inhuman, but was contrary to the very purposes of the Convention”: Statement of Mr. Juvigny of France, UN Doc. E/ AC.32/SR.40, Aug. 22, 1950, at 33. Statement of Mr. Henkin of the United States, ibid. at 31. UN Doc. E/1850, Aug. 25, 1950, at 25. “The President thought that the Ad Hoc Committee, in drafting article [33], had, perhaps, established a standard that could not be accepted. That Committee, as could be seen from its report on its second session, had felt that the principle inherent in article [33] was fundamental, and that it could not consider any exceptions to the article [emphasis added]”: Statement of Mr. Larsen of Denmark, UN Doc. A/CONF.2/SR.16, July 11, 1951, at 13. As is clear from this statement, however, the absolutism of concern to the President was the unwillingness to consider exceptions to the duty of non-refoulement, as for example were argued to be necessary in the event of mass influx. The President did not take issue with the

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Netherlands reasserted the customary understanding that a comprehensive and absolute duty of non-refoulement was untenable in the face of a mass influx.625 The President agreed, ruling that “the possibility of mass migrations across frontiers or of attempted mass migrations was not covered by article 33.”626 To codify this understanding, the French term “refoulement” was added to the English text of the article following the word “return,” the goal being to ensure that it was understood that the duty of non-return under Art. 33 would have “no wider meaning”627 than the French expression, which was agreed not to apply in the event that national security or public order was genuinely threatened by a mass influx. The view that there is an implied limitation on the scope of the duty of nonrefoulement where a state is at grave risk owing to a mass influx is, however, generally resisted.628 Indeed, Lauterpacht and Bethlehem dismiss this position out of hand: “Although by reference to passing comments in the travaux préparatoires of the 1951 Convention, it has on occasion been argued that the principle does not apply to [mass influx] situations, this is not a view that has any merit. It is neither supported by the text as adopted nor by subsequent practice.”629 At the level of text, this position ignores the explicit decision to add the French language word “refoulement” to the English language version of Art. 33 in order to ensure that the traditional civil law understanding of that term (which did not govern in a mass influx) would be formally recognized.630 Moreover, most of the “state practice” invoked by these writers against the mass influx exception is not properly considered to be state practice at all.631

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general scope of the prohibition of refoulement as elaborated by the Ad Hoc Committee as including both ejection and non-admittance at the frontier. “According to [the Swiss] interpretation, article [33] would not have involved any obligations in the possible case of mass migrations across frontiers or of attempted mass migrations . . . The Netherlands could not accept any legal obligation in respect of large groups of refugees seeking access to its territory [emphasis added]”: Statement of Baron van Boetzelaer of the Netherlands, UN Doc. A/CONF.2/SR.35, July 25, 1951, at 21. Statement of Mr. Larsen of Denmark, ibid. Statement of Mr. Hoare of the United Kingdom, ibid. See e.g. Kälin, “Article 33, para. 1,” at 1377–1379; Wouters, Refoulement, at 156; J.-F. Durieux and J. McAdam, “Non-refoulement through Time: The Case for a Derogation Clause to the Refugee Convention in Mass Influx Emergencies,” (2004) 16(1) International Journal of Refugee Law 4 (Durieux and McAdam, “Case for a Derogation Clause”), at 9–10; Edwards, “Temporary Protection,” at 632–634. Lauterpacht and Bethlehem, “Non-refoulement,” at [103]. 630 See text at note 627. Various memoranda and position papers authored by regional and international agencies are cobbled together as evidence of state practice in Lauterpacht and Bethlehem, “Nonrefoulement,” at [108]–[110]. Kälin similarly opines that “[i]t is sometimes argued that the prohibition of refoulement, at least regarding rejection at the frontier, does not apply in situations of mass influx. Support for this position can be found, to a certain extent, in the drafting history. Subsequent and uniform practice . . . however, prevails over any drafting history, [and] evidences . . . that states regularly admit large numbers of refugees to cross international borders in that in the relatively few cases of push-backs at the border, other

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Beyond the historical record and textual toehold, there is also a logic – borne out in much relevant state practice – to allowing states faced with truly extreme domestic consequences the ability to refuse to admit refugees.632 In the context of routine, individuated applications for protection, it is of course feasible for states scrupulously to avoid peremptory acts of refoulement. The applicant can be admitted to the state’s territory and removed if ultimately adjudged to constitute a serious risk to either national security or the safety of the community.633 In contrast, it is not usually practical for a country overwhelmed by a mass influx of refugees to engage in this kind of detailed, case-by-case analysis of risks to its own well-being. Insisting that they nonetheless allow all refugees in would, in this extreme context, be tantamount to demanding that they sacrifice their own most vital interests in order to protect refugees. It is thus perhaps not surprising that, as Martin reminds us, the states that adopted the 1967 Declaration on Territorial Asylum made clear even as they affirmed a comprehensive understanding of the duty of non-refoulement, “[e]xception may be made to the foregoing principle only for overriding reasons of national security or in order to safeguard the population, as in the case of a mass influx of persons.”634 Indeed, this sense that states cannot be expected to ignore real threats arising from the arrival of large numbers of refugees was evident in the recent suggestion of the European Court of Human Rights that large groups of refugees arriving in a disorderly way (rather than availing themselves of meaningful protection options) might not be entitled to claim protection against removal.635 That said, it is nonetheless indisputable that the textual basis for a mass influx exception to the duty of non-refoulement is oblique at best. More importantly, reliance on an implied exception to limit the duty of non-refoulement where

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states have protested such behaviour [emphasis added]”: W. Kälin, “Towards a Concept of ‘Temporary Protection’: A Study Commissioned by the UNHCR Division of International Protection,” unpublished paper, Nov. 12, 1996, at 13–14. A more circumspect approach to the definition of state practice relevant to treaty interpretation is, however, called for in the context of human rights treaties: see Chapter 2.4. A report for UNHCR notes that “this exchange [during the Convention’s drafting] is certainly proof of states’ anxiety about [the] prospect that observing non-refoulement could require a state to admit large numbers of refugees”: Long, “Review of UNHCR’s Response,” at [71]. Refugee Convention, at Art. 1(F). UNGA Res. 2312 (XXII), 22 UNGAOR Supp. No. 16, at 81, Art. 3(2), cited in D. Martin, “Interdiction of Asylum Seekers: The Realms of Policy and Law in Refugee Protection,” University of Virginia School of Law Public Law and Legal Theory Research Paper Series 2014-57 (Sept. 2014), at 2. Noting “the importance of managing and protecting borders,” the Court took the view that while states “cannot justify recourse to practices which are not compatible with the Convention,” nor may refugees complain of unlawful expulsion where they “deliberately take advantage of their large numbers and use force . . . such as to create a clearly disruptive situation which is difficult to control and endangers public safety” insofar as they have “genuine and effective access to means of legal entry, in particular border procedures”: ND and NT v. Spain, Dec. Nos. 8675/15 and 8697/15 (ECtHR, Feb. 13, 2020), at [168], [170], [201].

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critical interests are at stake in a mass influx is not a happy solution. It is unsatisfactory not only because it leaves refugees without protection, but also because it affords states only a very blunt tool to respond to difficult circumstances. The efforts of the UNHCR and its Executive Committee to define an alternative response thus make good sense, even if the precise way in which the alternatives have been elaborated does not. The seeds of a more honest and genuinely effective response to the dilemma posed by mass influx are, however, suggested by Executive Committee Conclusion No. 22 itself. Read as a whole, it is clear that Conclusion No. 22 argues for a much less one-sided responsibility than is typically suggested.636 The duty of state parties to respect the principle of non-refoulement (“at least on a temporary basis”) is in fact balanced against a duty of international solidarity owed by other state parties to the receiving country: A mass influx may place unduly heavy burdens on certain countries; a satisfactory solution of a problem, international in scope and nature, cannot be achieved without international cooperation. States shall, within the framework of international solidarity and burden-sharing, take all necessary measures to assist, at their request, States which have admitted asylum-seekers in large-scale influx situations [emphasis added].637

This approach draws directly on the language of the Preamble to the Refugee Convention, itself a part of the context of the treaty for interpretive purposes.638 In the result, Executive Committee Conclusion No. 22 actually suggests an understanding of the duty of non-refoulement that disallows state parties any prerogative to deny entry to refugees in a mass influx situation so long as there is reason to believe that the risk to their critical national interests occasioned by the mass influx will be countered by timely assistance from other states.639 Indeed, much the same conclusion flows from the limited scope of the mass influx exception as 636

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See Lauterpacht and Bethlehem, “Non-refoulement,” at [105], suggesting that by virtue of UNHCR Executive Committee Conclusion No. 22, “[t]he applicability of the principle [of nonrefoulement] to [mass influx] situations has . . . been affirmed unambiguously by the Executive Committee.” UNHCR Executive Committee Conclusion No. 22, “Protection of Asylum-Seekers in Situations of Large-Scale Influx” (1981), at [IV(1)]. “Considering that the grant of asylum may place unduly heavy burdens on certain countries, and that a satisfactory solution of a problem of which the United Nations has recognized the international scope and nature cannot therefore be achieved without international co-operation”: Refugee Convention, at Preamble. See Chapter 2.2 at note 63 regarding the importance of a treaty’s preamble as a reference point for interpretation. Although Long has suggested that there should be a “presumption that . . . the burden will be shared between states” (Long, “Review of UNHCR’s Response,” at [81]) there is clearly no empirical basis for such a position. In any event, as she herself acknowledges, even if such a presumption could somehow be justified, it would still not be “a legal obligation, leaving us with another lopsided commitment shoring up the contemporary refugee protection regime”: ibid. at [82].

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conceived by the drafters of the Convention: states are allowed to deny entry to refugees only in truly exceptional circumstances, and even then only to the extent truly necessary to protect their most critical national interests.640 The real answer is thus an optional protocol or other agreement that binds other state parties to come to the aid of a country experiencing a mass influx by way of both burden and responsibility sharing; in return, the receiving state so aided should be required to respect all applicable refugee and other international human rights. With the benefit of such a system, no state could legitimately invoke a mass influx exception to the duty of non-refoulement since the support received would negate the in extremis argument which is an essential condition for its application.641 Until and unless a speedy and reliable system of international burden and responsibility sharing is in place, how ought international law to engage state practice suggesting that the duty of non-refoulement does not apply in the context of a mass influx? Since none of the usual approaches – arguing that mass influx is simply legally irrelevant, leveraging soft law or institutional power indirectly to amend the Convention, squeezing mass influx into a provision intended for individuated application, or relying on a modest textual amendment to authorize a major suspension of a core right – is really satisfactory, is there an alternative legal basis upon which to ground analysis?642 640

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The Executive Committee has since taken a more absolutist approach, albeit without explicit reference to the duty of non-refoulement. “[A]ccess to asylum and the meeting by all States of their international protection obligations should not be dependent on burden and responsibility sharing arrangements first being in place, particularly because respect for human rights and humanitarian principles is a responsibility for all members of the international community”: UNHCR Executive Committee Conclusion No. 100, “Conclusion on International Cooperation and Burden and Responsibility Sharing in Mass Influx Situations” (2004), at Preamble. The same Conclusion, however, “[r]eaffirm[s], in regard to mass influx, the guidance on reinforcing burden and responsibility sharing, including in particular that set out in Conclusion No. 22 (XXXII) of 1981 on the protection of asylum-seekers in situations of large-scale influx”: ibid. at Preamble. The prospects for such a commitment appear tragically remote. The New York Refugee Declaration of 2016 proclaimed that “[t]o address the needs of refugees and receiving States, we commit to a more equitable sharing of the burden and responsibility for hosting and supporting the world’s refugees, while taking account of existing contributions and the differing capacities and resources among States”: “New York Declaration for Refugees and Migrants,” UN Doc. A/RES/71/1, Sept. 19, 2016, at [68]. The operational “Comprehensive Refugee Response Framework,” however, promised only that “States, in cooperation with multilateral donors and private sector partners, as appropriate, would, in coordination with receiving States . . . [m]obilize adequate financial and other resources to cover the humanitarian needs identified within the comprehensive refugee response framework”: ibid. at Annex, [6a]. A proposal has been made to amend the Refugee Convention to include an emergency derogation clause that could be activated in the context of a mass influx: see Durieux and McAdam, “Case for a Derogation Clause.” While such a codification would, as argued, present the opportunity to clarify both normative and procedural expectations, reopening treaty obligations would, of course, also afford the opportunity for a significant retreat from duties owed to refugees (including, but in no sense limited to, the duty of non-refoulement).

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International experts attending the Eighth Colloquium on Challenges in International Refugee Law in 2017 determined that there was: the doctrine of necessity. A state of necessity exists when a country is threatened by a grave and imminent peril and has no means of safeguarding an essential interest but to act in a manner that is not in conformity with its international legal obligations.643 In such a situation, so long as the actions taken are “the only way”644 to protect an essential interest and the state in question has “not contributed to the situation of necessity,”645 no internationally wrongful act is committed. As succinctly framed by Crawford and Olleson, “[a] State is not required to sacrifice human life or to suffer inordinate damage to its interests in order to fulfil its international obligations.”646 Invocation of necessity is not, however, a simple matter of making a relevant declaration;647 to the contrary, the onus falls on the state invoking necessity to demonstrate that the conditions and requirements of necessity are fulfilled in the particular case.648 Applying the principle to the mass influx context, agreement was reached at the Colloquium that: The existence of a mass influx of refugees, defined as a situation in which the number of refugees arriving at a state’s frontiers clearly exceeds the capacity of that state to receive and to protect them, may, in an extreme case, justify derogation from one or more Convention or other rights on the basis of the principle of necessity. Derogation based upon necessity may be invoked only if the state faces a grave and imminent peril and must derogate in order to safeguard an essential interest. A state may, however, only invoke necessity where it has not contributed to the peril. It must also continuously assess that peril and its response thereto in order to ensure that the derogation undertaken remains necessary. Because derogation is necessary only if it is the least intrusive response capable of safeguarding the essential interest, the refoulement of refugees will almost invariably be impermissible. More generally, if and when a dependable system of burden and responsibility sharing as envisaged by the 643

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J. Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (2002), at 178. The doctrine has been approved by the International Court of Justice in Gabčíkovo–Nagymaros Project (Hungary v. Slovakia), [1997] ICJ Rep 40, at [51]; and Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, [2004] ICJ Rep 136, at [140]. International Law Commission, “Articles on the Responsibility of States for Internationally Wrongful Acts,” annexed to UNGA Res. 56/83 (2002), Dec. 12, 2001, at Art. 25(1)(a). Ibid. at Art. 25(1)(b). J. Crawford and S. Olleson, “The Nature and Forms of International Responsibility,” in M. Evans ed., International Law 446 (2003), at 464. This is one of the real problems with the malleable “mass influx” approach. As Edwards observes, “states have been able to call a particular situation a mass influx and to adopt special arrangements for refugees in response, when objectively it may be clear that the situation is not . . . a mass influx”: Edwards, “Temporary Protection,” at 604. Gabčíkovo–Nagymaros Project (Hungary v. Slovakia), [1997] ICJ Rep 40, at [51].

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Convention’s Preamble is implemented, the conditions precedent for lawful resort to necessity-based derogation are unlikely to be satisfied.649

Drawing on this approach, most recent invocations of a “mass influx exception” to the duty of non-refoulement can be adjudged unjustified. For example, Turkey’s 1991 refusal of entry to Kurdish refugees650 was not capacity-based, but rather a response to political sensitivities about adding to the strength of its own domestic Kurdish population. Concerns about demographic change also largely fueled Kenya’s 2007 decision to refuse entry to ethnic Somalis651 and, even more clearly, Jordan’s 2014 denial of entry to ethnic Palestinian refugees arriving from Syria.652 Despite the fact that each of these countries had already made significant contributions to refugee protection, the border closures were not dictated by imminent peril, but rather reflected ethnic discrimination closely linked to domestic politics. Nor can a credible case of necessity be made out when real offers of international assistance exist. Thailand, for example, had effectively put itself in a position of administrative incapacity to respond to Vietnamese refugees653 by refusing an offer from the United States to build new facilities to provide for the arriving refugees; similarly, Croatia, Macedonia, Serbia, and Slovenia chose to take blunt deterrent measures notwithstanding Germany’s offer to receive the refugees arriving at their borders and European Union assurances of support.654 Because the existence of such external support would have answered any allegation of insufficient reception capacity, a claim grounded in necessity would fail. While no doubt a closer case,655 Macedonia’s 1999 closure of its border to Kosovo Albanian refugees656 appears to have been less a truly unavoidable act premised on necessity than a bargaining chip to garner increased support from other countries to cope with the refugee flow. As Eggli has concluded, Macedonia was “playing politics with refugees,”657 making it difficult to see its actions as limited to strictly what was required in order to avoid fundamental risk to its own most basic interests. Two other recent cases, however, present more arguable claims for a necessitybased exception to at least some significant Convention obligations. Pakistan’s closure of its border to Afghan refugees in 2000658 came only after it had already received, and hosted, millions of Afghan refugees for many years. The decision to 649

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“The Michigan Guidelines on Refugee Freedom of Movement,” (2017) 39 Michigan Journal of International Law 1, at [12]–[13]. 651 652 See text at note 10. See text at note 14. See text at note 17. 654 See text at note 69. See text at note 21. There is no doubt that the security situation for Macedonia was grave: the number of refugees seeking entry was nearly 20 percent of the host country’s population, and would – if admitted more than strictly temporarily – seriously exacerbate an already volatile political situation by fundamentally changing Macedonia’s ethnic balance. See M. Barutciski and A. Suhrke, “Lessons from the Kosovo Refugee Crisis: Innovations in Protection and Burden-Sharing,” (2001) 14(2) Journal of Refugee Studies 95. See text at note 12. A. Eggli, Mass Refugee Influx and the Limits of Public International Law (2001), at 225. See text at note 13.

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close the border was made only after a marked increase in arrivals and against the backdrop of UNHCR and the World Food Programme having ended food aid and other assistance programs for refugees due to funding shortfalls. As a study for UNHCR observed, “[t]he act of closing signaled a cumulative frustration with the failures of international refugee policy.”659 An even more compelling case can be made in the context of the 1994 border closings by Zaïre and Tanzania to refugee flows from Rwanda and Burundi.660 Both states had been overwhelmed by hundreds of thousands of refugees, and were faced with the imminent prospect of additional flows at the time of the border closures. At least in the case of Zaïre, there was also good reason to believe that internal security could be threatened by the entry of refugees, many of whom were suspected of having committed serious criminal offenses. The decisions to suspend border crossings were moreover of limited duration, while efforts to secure international resources to protect refugees were being pursued. While opinions may differ about whether the clearly dire circumstances of Pakistan, Tanzania, and Zaïre truly warranted refoulement or perhaps only some lesser suspension of duties owed to refugees, the necessity framework seems the right place for the debate. Not only is this approach firmly anchored in general international law, but it is neatly predicated on enabling asylum states to preserve their own vital interests in a manner that does not subject refugees to rights deprivations in other than an extreme and truly unavoidable situation, and only to the extent that these are demonstrably required.661 The necessity doctrine does not rule out the possibility of a genuinely exceptional resort to refoulement in the case of mass influx, though it tightly constrains that possibility. And perhaps most important, it makes clear that once a solid and reliable burden and responsibility sharing mechanism is in place, there will be no need for even this exceedingly narrow implied exception to the duty of non-refoulement.

4.1.6 An Expanded Concept of Non-refoulement? It is frequently argued that the duty to avoid the refoulement of refugees has evolved at the universal level beyond the scope of Art. 33 of the Refugee Convention.662 In two important scholarly studies – a foundational analysis prepared in 2003 for the 659 661

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Long, “Review of UNHCR’s Response,” at [268]. 660 See text at note 11. Most fundamentally, there can be no question of avoiding the duty of non-refoulement under this implied exception where the numbers arriving and the resources of the receiving state are such that security concerns can be addressed under the individuated exceptions set by Art. 33(2). See e.g. Kälin, “Article 33, para. 1,” at 1342; Goodwin-Gill and McAdam, Refugee in International Law, at 354; J. Allain, “The Jus Cogens Nature of Non-refoulement,” (2001) 13 International Journal of Refugee Law 533, at 538. But see K. Hailbronner, “Non-refoulement and ‘Humanitarian’ Refugees: Customary International Law or Wishful Legal Thinking?,” (1986) 26 Virginia Journal of International Law 857 (Hailbronner, “Wishful Legal Thinking?”), at 861–867.

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UNHCR by Lauterpacht and Bethlehem663 and a more recent and probing analysis by Costello and Foster in 2016664 – the argument is made that even states not bound by the Refugee Convention (or any other treaty) are required by customary international law to protect refugees against refoulement. Indeed, Lauterpacht and Bethlehem say that the customary duty of non-refoulement is owed not only to any refugee, but also to any potential victim of torture, cruel or inhuman or degrading treatment or punishment (“torture”), as well as to most persons facing risk to “life, physical integrity, or liberty.”665 Costello and Foster go farther still, claiming that the customary duty of non-refoulement applies to anyone who faces “return to serious human rights violations, unless the risk in question is not sufficiently ‘real’ [emphasis added]”;666 and further that this duty is a jus cogens norm667 – that is, a “super norm” that trumps any conflicting claim.668 663 664

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Lauterpacht and Bethlehem, “Non-refoulement”. C. Costello and M. Foster, “Non-refoulement as Custom and Jus Cogens? Putting the Prohibition to the Test,” in M. den Heijer and H. van der Wilt eds., [2016] Netherlands Yearbook of International Law 273 (Costello and Foster, “Custom and Jus Cogens”). Lauterpacht and Bethlehem, “Non-refoulement,” at [253]. They argue, however, that the duty of non-refoulement in relation to persons who face a threat to “life, physical security, or liberty” not rising to the level of a risk of “torture or cruel, inhuman or degrading treatment or punishment” can be trumped by “overriding reasons of national security or public safety”: ibid. at [253(c)]. Costello and Foster, “Custom and Jus Cogens,” at 285. This claim fails for several reasons. Even on the test proposed by Costello and Foster – namely whether “there is sufficiently widespread opinio [juris]” (Costello and Foster, “Custom and Jus Cogens”, at 307) – the analysis at note 701 ff. shows that there is not. They also attempt to read away the minimum condition for jus cogens status (nonderogability: see Vienna Convention on the Law of Treaties, 1155 UNTS 331 (UNTS 18232), done May 23, 1969, at Art. 53), suggesting that Moore’s more forthright analysis that Art. 33(2) exceptions to the duty of non-refoulement be taken into account “is a wrong move”: Costello and Foster, “Custom and Jus Cogens”, at 312, rejecting J. Moore, “Protection against the Forced Return of War Refugees: An Interdisciplinary Consensus on Humanitarian Non-refoulement,” in D. Cantor and J.-F. Durieux eds., Refuge from Inhumanity? War Refugees and International Humanitarian Law 411 (2014), at 416. See also Edwards, “Temporary Protection,” at 632, indicating that the exceptions to the duty of non-refoulement set by Art. 33(2) “speak[] against art. 33 being able to achieve the status of a jus cogens norm, against which no derogation is permitted.” Indeed, Goodwin-Gill and McAdam opine that the claim that non-refoulement is a jus cogens norm “is far less certain [than its customary law status], and it may be that little is likely to be achieved by insisting on its status as such”: Goodwin-Gill and McAdam, Refugee in International Law, at 346, n. 421. The Supreme Court of Canada noted the claim that non-refoulement is jus cogens, but declined to determine it, noting that the claim “is controversial among international scholars”: Jószek Németh v. Minister of Justice of Canada, [2010] SCC 56 (Can. SC, Nov. 25, 2010), at [104]. See also C v. Director of Immigration, Dec. No. HCAL 132/2006 (HK HC, Feb. 18, 2008), at [133]–[135] (“I think it goes too far to hold – at this time – that the [non-refoulement] rule has acquired the status of a peremptory norm. Put another way, the ideal does not accord with present reality and, if the ideal is to prevail, it may bring the norm itself into disrepute”). Costello and Foster, “Custom and Jus Cogens,” at 309. The attribution of status as “higher law” derives from the intersection of a given norm with the general principle of law

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On the core question of whether there is today a customary international legal duty binding all states to avoid the refoulement of refugees, the two analyses are largely in sync. The essence of their reasoning is that the frequency with which some sort of duty of non-refoulement has been agreed – albeit in different contexts, arising under different treaties, and for different beneficiaries – means that it has become a norm of such generality that it is now the case that all states – even those that have accepted not a single treaty-based obligation of non-refoulement – are now legally obligated to honor that duty.669 Lauterpacht and Bethlehem invoke the decision of the International Court of Justice (ICJ) in the North Sea Continental Shelf Cases670 for the view that treaties “may influence the creation of . . . a rule of custom.”671 They argue that because the treaty-based principle of non-refoulement is of norm-creating character,672 enjoys widespread and representative state support,673 and has stimulated consistent relevant practice,674 “non-refoulement must be regarded as a principle of customary international law.”675 Costello and Foster676 similarly contend that “[t]he principle of non-refoulement embodied in a wide range of treaties has the same fundamental core, albeit expressed in slightly different terms across different instruments.”677 This argument has proven quite seductive, garnering the support not only of the UNHCR678 but also of the only top court explicitly to analyze the claim, the Hong Kong Court of Final Appeal:

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prohibiting agreements that are inconsistent with the most basic values of the international community: F. Domb, “Jus Cogens and Human Rights,” (1976) 6 Israeli Yearbook of Human Rights 104. Yet “the concordance of even a considerable number of treaties per se constitutes neither sufficient evidence nor even a sufficient presumption that the international community as a whole considers such treaties as evidence of general customary law”: International Law Commission, “Third Report on Identification of Customary International Law,” UN Doc. A/CN.4/682, Mar. 27, 2015, at [42], quoting K. Wolfke, “Treaties and Custom: Aspects of Interrelation,” in J. Klabbers and R. Lefeber eds., Essays on the Law of Treaties: A Collection of Essays in Honour of Bert Vierdag 31 (1998), at 35. North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), [1969] ICJ Rep 3, cited in Lauterpacht and Bethlehem, “Non-refoulement,” at [198]. Lauterpacht and Bethlehem, “Non-refoulement,” at [198]. Ibid. at [201]–[208]. They add for good measure, that there is an “evident lack of expressed objection by any state to the normative character of the principle of non-refoulement”: ibid. at [216]. Ibid. at [209]–[210]. 674 Ibid. at [211]–[215]. Ibid. at [216]. Somewhat confusingly, the authors also seem to suggest that non-refoulement is a general principle of international law, though they provide no analysis in support of that view: ibid. Their analysis is largely adopted in Kälin, “Article 33, para. 1,” at 1344. Costello and Foster, “Custom and Jus Cogens,” at 283–285. 677 Ibid. at 284. UNHCR, Intervention before the Court of Final Appeal of the Hong Kong Special Administrative Region in the case between C, KMF, BF (Applicants) and Director of Immigration, Secretary for Security (Respondents), Civil Appeals Nos. 18, 19 and 20 of

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The principle of non-refoulement developed under international refugee and human rights law stems from a single unified value: States must not exercise their right to remove, in any manner whatsoever, people from their territory and/or jurisdiction, where they face a threat to their lives or freedoms.679

Yet this approach raises both a logical and a legal challenge. At the level of logic, while non-refoulement is commonly referred to as a principle or a norm, in fact it is neither. It is rather a mechanism – that is, a means by which a principle or norm may be effectuated, not a principle or norm itself. As applied to refugees, it precludes return to the risk of being persecuted.680 The same mechanism exists in the Torture Convention to benefit a different group of persons – those who face the probability of torture.681 The mechanism has been found to be implicit in the Civil and Political Covenant, this time operating to stop states from returning individuals subject to arbitrary deprivation of life, as well as those who face cruel, inhuman, or degrading treatment or punishment or torture.682 Multiple other variants exist: there is a duty of non-refoulement to stop people from being “disappeared,”683 to prevent civilians from being forced back into ongoing armed conflict,684 to prevent removals at odds with the best interests of the

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2011, Jan. 31, 2013, at [18]–[27]; UNHCR, “Advisory Opinion on the Extraterritorial Application of Non-refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol,” Jan. 26, 2007, at [14]–[22]. C v. Director of Immigration, Dec. No. FACV 18, 19 and 20/2011 (HK CFA, Jan. 31, 2013), at [17]. The same conclusion was also reached in Kenya National Commission on Human Rights v. Attorney General, Constitutional Petition No. 227 of 2016 (Ken. HC, Feb. 9, 2017), at 15–16. The International Criminal Court has moreover noted that “[t]he ‘nonrefoulement’ principle is considered to be a norm of customary international law,” though it offered no analysis on point: Situation en Republique Democratique du Congo: Le Procureur c. Germain Katanga et Mathieu Ngudjolo Chui, Dec. ICC-01/04-01/07 (ICC, June 9, 2011), at [68]. Refugee Convention, at Art. 33(1). See Chapter 4.1.1. Torture Convention, at Art. 3. See text at note 816. UN Human Rights Committee, “General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant” (2004), UN Doc. HRI/GEN/ 1/Rev.7, May 12, 2004, at [12]; UN Human Rights Committee, “General Comment No. 36 on Article 6 of the International Covenant on Civil and Political Rights, on the Right to Life,” Revised draft prepared by the Rapporteur, UN Doc. CCPR/C/GC/R.36/Rev.5, July 26, 2016, at [34]. See text at notes 819–821. International Convention for the Protection of All Persons against Enforced Disappearance, 2716 UNTS 3 (UNTS 48088), adopted Dec. 20, 2006, entered into force Dec. 23, 2010, at Art. 16(1). See text at note 817. R. Ziegler, “Non-refoulement between ‘Common Article 1’ and ‘Common Article 3,’” in D. Cantor and J.-F. Durieux eds., Refuge from Inhumanity: War Refugees and International Humanitarian Law 386 (2014) (Ziegler, “‘Common Article 1’ and ‘Common Article 3’”). See text at note 817.

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child,685 and – at least in Europe – to avoid a whole host of possible rights infringements, including at least some cases of enslavement, loss of liberty and security, subjection to an unfair trial, unlawful punishment, breach of privacy and family rights, and denial of the freedom of thought, conscience, and religion.686 Because the non-refoulement mechanism operates to achieve a different end in each different treaty-based context, to say that nearly all states accept at least some duty of non-refoulement is not to say anything with substantive meaning.687 How could the existence of this panoply of different duties operationalized at least in part by a common mechanism be said to give rise to a common duty? The only thing in common is the means to a variety of different ends; that fact simply does not result in a shared substantive obligation.688 By way of analogy, the courts of virtually all states authorize resort to the mechanism of injunctive relief in at least some circumstances. Yet it would be meaningless to claim a normative consensus on a duty “to issue injunctions” without evidence of substantive accord on the circumstances in which the remedy is to be granted. Costello and Foster misunderstand this concern,689 invoking the International Law Commission’s sensible view that “the repetition of similar or identical provisions in a large number of bilateral treaties may give rise to a rule of customary international law or attest to its existence.”690 That is of course true – but this principle would be relevant only if non-refoulement did “similar or identical” work under the various treaties – for example, if five treaties all required states to grant torture victims protection against refoulement. There is simply no basis to apply this principle to substantively divergent duties sharing no more than an implementation mechanism. Nor is the fact of multiple treaties sharing a common mechanism more relevant when framed as evidence 685

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J. Pobjoy, “The Best Interests of the Child Principle as an Independent Source of International Protection,” (2015) 64(2) International and Comparative Law Quarterly 327 (Pobjoy, “Best Interests”). See text at note 818. A succinct summary of key case law establishing these implied duties of non-refoulement is provided in Costello and Foster, “Custom and Jus Cogens,” at 285. For a more detailed analysis, see K. Greenman, “A Castle Built on Sand? Article 3 ECHR and the Source of Risk in Non-refoulement Obligations in International Law,” (2015) 27(2) International Journal of Refugee Law 264 (Greenman, “Castle Built on Sand?”). Indeed, Costello and Foster concede that “[t]he key challenge is that there is often no definition of the beneficiary class in the numerous General Assembly resolutions or Executive Committee Conclusions on this point, and many of the sources relied upon . . . are similarly imprecise”: Costello and Foster, “Custom and Jus Cogens,” at 305. Costello and Foster acknowledge that “[a]lthough the texts differ in terms of the focal harms, the duty of non-refoulement is similar in all cases. It prohibits return to serious human rights violations”: ibid. at 285. This passage makes clear that it is really only the operational mechanism – the thing that “prohibits return” – that is shared. The concern is not, as has been suggested, that “the various treaties cited are not identical”: but see ibid. at 284. Ibid., citing M. Wood, “Third Report on Identification of Customary International Law,” UN Doc. A/CN.4/682, Mar. 27, 2015, at [42].

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of opinio juris, the approach taken by Lauterpacht and Bethlehem. Precisely what is it that states can be said to feel bound to do by reason of scholars having cobbled together disparate commitments with only the veneer of a remedial mechanism – non-refoulement – in common? Not only can no unifying principle be identified, but the logic of the assertion is baffling. State “A” signs a treaty proscribing the refoulement of refugees; State “B” commits to no refoulement of people at risk of torture; State “C” signs on to a treaty pursuant to which it must avoid the refoulement of civilians into armed conflict; and State “D” refuses to sign any treaty at all. Under the approach championed in particular by Costello and Foster,691 all four states would – irrespective of their treaty obligations or lack thereof – be legally required to avoid the refoulement of the combined class of refugees, those who might be tortured, civilians fleeing armed conflict, and perhaps more.692 Their consent to be bound by one or more treaties would effectively be rendered irrelevant. Given the gravity of an assertion that customary international law arising from the existence of treaties overrides the specificity of treaty obligations, any such claim must be approached with real caution. The basic notion that customary law may emerge from a treaty-based norm is of course well accepted. At least since the Asylum case,693 it has been recognized that the tree of customary international law can grow from the acorn of specific treaties.694 Importantly, though, the focus must be mainly on the practice of states not already bound by the treaty to act in accordance with the norm, as what “States do in pursuance of their treaty obligations is prima facie referable only to the treaty, and therefore does not count towards the formation of a customary rule.”695 It must moreover be recognized that the role of the treatybased norm is essentially auxiliary:696 it crystallizes the content of the putative norm697 and provides a context within which the two essential elements of a 691 693 695

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Costello and Foster, “Custom and Jus Cogens,” at 285. 692 Ibid. Asylum Case (Colombia v. Peru), [1950] ICJ Rep 266. 694 Ibid. at 277. M. Mendelson and R. Mullerson, “Final Report, International Law Association, Statement of Principles Applicable to the Formation of General Customary International Law” (2000) (ILA, “General Custom”), at 758. The main exception is “the conduct of parties to a treaty in relation to non-parties [since that] is not practice under the treaty, and therefore counts towards the formation of customary law”: ibid. “It is of course axiomatic that the material of customary international law is to be looked for primarily in the actual practice and opinio juris of States, even though multilateral conventions may have an important role to play in recording and defining rules deriving from custom, or indeed in developing them”: Continental Shelf (Libyan Arab Jamahiriya v. Malta), Judgment, [1985] ICJ Rep 13, at [27]. See also Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Merits, [1986] ICJ Rep 14, at [183]; and Legality of the Threat or Use of Nuclear Weapons, [1996] ICJ Rep 226, at [64]. Thus, the norm must “be of a fundamentally norm-creating character such as could be regarded as forming the basis of a general rule of law”: North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), [1969] ICJ Rep 3, at [72].

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customary norm – opinio juris and consistent state practice698 – can be located.699 In the case of the putative customary duty of non-refoulement, these two essential requirements for the emergence of customary international law are simply not clearly established,700 especially not as regards states that have yet to agree to be bound by the Refugee Convention’s duty of nonrefoulement.

4.1.6.1 Opinio Juris? To begin – even if we can somehow get over the basic challenge that nonrefoulement is a mechanism to implement norms rather than a norm itself – is there opinio juris sufficient to justify the putative norm?701 The rigid traditional understanding of opinio juris sive necessitatis – requiring that the observed uniformity of practice be a consequence of a sense of legal obligation702 – has of course given way to the less demanding requirement “of an express, or most often presumed, acceptance of the practice as law by all interested states.”703 It 698

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Ibid. at [209]–[215]. “[T]he substance of [customary] law must be ‘looked for primarily in the actual practice and opinio juris of States’”: Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Merits, [1986] ICJ Rep 14, at [64]. Accord ILA, “General Custom,” at [9]. “At best, the recommendation made by the Council constitutes the point of departure of an administrative practice”: Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, [1951] ICJ Rep 15, at 25. To be fair, customary international law is notoriously murky terrain. As Goldsmith and Posner write, “[i]t is unclear which state acts count as evidence of a custom, or how broad consistent state practice must be to satisfy the custom requirement. It is also unclear what it means for a nation to follow a custom from a sense of legal obligation, or how one determines whether such an obligation exists”: J. Goldsmith and E. Posner, “A Theory of Customary International Law,” (1999) 66 University of Chicago Law Review 1113, at 1114. In the result, “international law arguments based on custom always suffer from a considerable degree of arbitrariness”: N. Petersen, “Customary Law Without Custom? Rules, Principles, and the Role of State Practice in International Norm Creation,” (2007) 23(2) American University International Law Review 275, at 277. Anthony D’Amato has strongly criticized the ICJ for commencing with analysis of opinio juris (rather than with analysis of whether there is consistent relevant state practice) in the Nicaragua case: A. D’Amato, “Trashing Customary International Law,” (1987) 81 American Journal of International Law 101 (D’Amato, “Trashing”), at 102. But as Oscar Schachter has observed, “[e]ven if the [reversal] seemed to place the cart before the horse, it did not depart in principle from the basic postulate that binding custom was the result of the two elements: State practice and opinio juris”: O. Schachter, “New Custom: Power, Opinio Juris and Contrary Practice,” in J. Makarczyk ed., Theory of International Law at the Threshold of the 21st Century: Essays in Honour of Krzysztof Skubiszewski 531 (1996) (Schachter, “New Custom”), at 534. Only if relevant state actions are “based on their being conscious of having a duty to [act in a particular way] would it be possible to speak of an international custom”: The Case of the SS “Lotus,” [1927] PCIJ Rep, Series A, No. 10, at 28. K. Wolfke, Custom in Present International Law (1993) (“Wolfke, Custom”), at 51. See also ILA, “General Custom,” at 10: “[T]he main function of the subjective elements is to

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is sufficient to show that states presently regard the putative norm as legally compelled, even if their concordant actions in keeping with the norm were not induced by a sense of legal duty. There is moreover good authority that opinio juris can be shown in many different ways. In its Nicaragua decision, for example, the ICJ held that “opinio juris may, though with all due caution, be deduced from, inter alia, the attitude of . . . States towards certain General Assembly resolutions . . . support of [regional conference] resolutions . . . [and] statements by State representatives.”704 Despite this very flexible approach to the material basis for identification of opinio juris, the specific facts relied upon by Lauterpacht and Bethlehem fall short. They ground their claim of opinio juris for a universally binding duty of non-refoulement on a combination of, first, the “near-universal acceptance”705 of a non-refoulement duty in various UN and regional treaties; and second, the unanimous adoption by the General Assembly of the 1967 Declaration on Territorial Asylum, coupled with the absence of express opposition to the principle of non-refoulement by the states which neither signed a relevant treaty nor were present in the General Assembly when the 1967 declaration was adopted.706 Costello and Foster take a more credible but still challenging tack, drawing on a broader range of General Assembly resolutions,707 and the Conclusions on International Protection of the UNHCR’s Executive Committee.708 For reasons noted above,709 the core of Lauterpacht and Bethlehem’s opinio juris claim is substantively rickety. For a single rule of customary international

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indicate what practice counts (or, more precisely, does not count) towards the formation of a customary rule.” As Kammerhofer writes, “[t]he concept of opinio juris is arguably the centrepiece of customary international law. It is the most disputed, least comprehended component of the workings of customary international law. At the heart of the debate lies an important conflict: on the one hand, customary law-making seems by nature indirect and unintentional. On the other hand, law-making normally requires some form of intentional activity, an act of will. In the international legal system, great value has traditionally been placed in the states’ agreement or consent to create legal obligations binding on them” : J. Kammerhofer, “Uncertainty in the Formal Sources of International Law: Customary International Law and Some of Its Problems,” (2004) 15 European Journal of International Law 523 (Kammerhofer, “Uncertainty”), at 532. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Merits, [1986] ICJ Rep 14, at [188]–[190]. A similar position is taken by J. Crawford, Brownlie’s Principles of Public International Law (2012) (Crawford, Brownlie’s Public International Law), at 24. But see J. Kelly, “The Twilight of Customary International Law,” (2000) 40 Virginia Journal of International Law 449 (Kelly, “Twilight”), at 487: “Aspirational or recommendatory instruments, enacted while states remain unwilling to sign concrete treaties, provide compelling evidence that states lack the normative conviction necessary to create customary obligations, rather than evidence that states believe these norms are binding.” Lauterpacht and Bethlehem, “Non-refoulement,” at [209]. 706 Ibid. at [209]. Costello and Foster, “Custom and Jus Cogens,” at 287–289. 708 Ibid. at 290–291. See text at note 690.

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law to emerge, the indicia of opinio juris must clearly relate to the same putative rule.710 In contrast, Lauterpacht and Bethlehem weave together disparate bits of opinio juris arising from distinct treaties dealing with distinct issues to locate opinio juris for a principle that is more comprehensive than any of the underlying commitments. Specifically, they argue that because nearly all UN member states “participat[e] in some or other conventional arrangement embodying nonrefoulement”711 – that is, they have all agreed to be bound by at least one of Art. 33 of the Refugee Convention, Art. 3 of the Torture Convention, Arts. 6 and 7 of the Civil and Political Covenant, or by a comparable provision under a relevant regional treaty – it is now possible to conclude that there is a sufficiently widespread and representative opinio juris for an overarching principle that “nonrefoulement must be regarded as a principle of customary international law.”712 But because non-refoulement is merely a means to a protection end, it can only be the subject of general acceptance within a particular context. That is, the assertion that all states accept the duty of protection against refoulement assumes some agreement about the circumstances in which the duty is owed. Yet there is no such agreement, since the evidence of opinio juris relied upon by Lauterpacht and Bethlehem sometimes relates to persons who have a wellfounded fear of being persecuted; in other cases, to persons at risk of torture; and in still other circumstances, to persons at risk of other forms of human rights abuse. There is, in short, no common acceptance of the duty of nonrefoulement related to any particular class of persons or type of risk, much less to their combined beneficiary class.713 Costello and Foster sensibly decline to assert that the existence of various treaties embodying the non-refoulement mechanism amounts to opinio juris of the broader norm they favor,714 though they resuscitate the argument indirectly in an awkward effort to prove that states that have not acceded to the Refugee Convention nonetheless accept the duty to avoid the refoulement of refugees.715 710

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Writing in relation to the practice component of customary law, Villiger observes that “the condition of uniform practice requires that the instances of practice of individual States and of States in general circumscribe, apply, or refer to, and thereby express, the same customary rule”: M. Villiger, Customary International Law and Treaties: A Manual of Theory and Practice of the Interrelation of Sources (1997) (Villiger, Interrelation of Sources), at 43. Lauterpacht and Bethlehem, “Non-refoulement,” at [210]. 712 Ibid. at [216]. Considering the combined effect of Art. 33 of the Refugee Convention and the duty of non-return arising from the European Convention on Human Rights, the English Court of Appeal sensibly described the Refugee Convention norm as “overlain by the provisions of the ECHR” (MS and MBT v. Secretary of State for the Home Department, [2017] EWCA Civ 1190 (Eng. CA, July 31, 2017), at [7]) – thus recognizing the independent if overlapping nature of the duties arising under the two treaties. Costello and Foster, “Custom and Jus Cogens,” at 285–286. Despite the fact that many states in Asia and the Middle East have declined to sign the Refugee Convention, it is suggested by Costello and Foster that the failure to do so does not “equate[] to a rejection of the norm of non-refoulement” as applied to refugees given

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The second form of evidence of opinio juris relied upon by Lauterpacht and Bethlehem, the unanimous adoption by the General Assembly of the 1967 Declaration on Territorial Asylum,716 does have a common substantive core. Unfortunately for their project, the common core is limited to persons seeking “asylum from persecution,”717 a group far smaller than that said by them to benefit from the customary norm.718 More fundamentally, General Assembly resolutions cannot be relied upon in abstracto as evidence of universal opinio juris.719 As the ICJ observed in Nicaragua, the opinio juris is instead to be deduced from “the attitude of . . . States towards certain General Assembly resolutions [emphasis added].”720 The Court noted that while General Assembly resolutions may be the basis for opinio juris,721 they have to be

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the fact that many such states have agreed to treaties that require them to avoid refoulement of other categories of persons: ibid. at 294–295. For reasons previously set out (see text at note 680 ff.) this is not persuasive: the fact that a state has agreed not to send back torture victims, for example, cannot be seen as evidence that it has also agreed not to send back other categories of persons, including refugees. UNGA Res. 2312 (XXII), adopted Dec. 14, 1967. 717 Ibid. at Art. 1(1) and Preamble. Specifically, persons threatened with persecution are one of the three groups said by Lauterpacht and Bethlehem to be entitled to protection against refoulement under a general customary duty. The other two are persons who face “a real risk of torture or cruel, inhuman or degrading treatment or punishment” and persons who face “a threat to life, physical integrity, or liberty”: Lauterpacht and Bethlehem, “Non-refoulement,” at [218]. There is a not-insignificant policy concern, noted by Thomas Franck. “The effect of [an] enlarged concept of the lawmaking force of General Assembly resolutions may well be to caution states to vote against ‘aspirational’ instruments if they do not intend to embrace them totally and at once, regardless of circumstances. That would be unfortunate. Aspirational resolutions have long occupied, however uncomfortably, a twilight zone between ‘hard’ treaty law and the normative void. Even if passed with a degree of cynicism, they may still have a bearing on the direction of normative evolution. By seeking to harden this ‘soft’ law prematurely, however, the [ICJ] advises prudent states to vote against such resolutions, or at least to abstain”: T. Franck, “Some Observations on the ICJ’s Procedural and Substantive Innovations,” (1987) 81 American Journal of International Law 116 (Franck, “Innovations”), at 119. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Merits, [1986] ICJ Rep 14, at [188]. Some commentators take strong objection to this holding. “[A] customary rule arises out of state practice; it is not necessarily to be found in UN resolutions and other majoritarian political documents . . . If voting for a UN resolution means investing it with opinio juris, then the latter has no independent content: one may simply apply the UN resolution as it is and mislabel it ‘customary law’”: D’Amato, “Trashing,” at 102. This critique is overstated, as the ICJ merely held that General Assembly resolutions could contribute to opinio juris; consistent state practice must also be identified. D’Amato no doubt makes his charge in view of the Court’s regrettable assumption (rather than interrogation) of consistent state practice. The judgment is, however, clear that consistent state practice remains an essential element of customary international law formation: Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Merits, [1986] ICJ Rep 14, at [184]. Accord ILA, General Custom, at 63: “Given that General Assembly resolutions are not, in

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considered “in their totality.”722 A critical part of that totality is the fact that a United Nations conference convened in 1977 with the specific intention of transforming the 1967 declaration into binding law was a failure.723 Lapenna notes that “the Committee met for [more than] four weeks, and only three of the ten articles of the experts’ draft were discussed and voted on . . . [T]he preoccupation of the majority of the states was that of safeguarding, to exasperation point, the sovereign right of a state to grant asylum.”724 There has moreover been no subsequent effort to revisit the asylum convention project.725 To rely on the 1967 asylum declaration as an indication of state parties’ acceptance of a comprehensive duty of non-refoulement – much less to isolate the nineteen abstaining countries and deem their failure to protest to be implied support – is disingenuous given the totality of the evidence of state attitudes. The more plausible basis for General Assembly-based opinio juris – ironically, not invoked by Lauterpacht and Bethlehem, but drawn upon by Costello and Foster726 – is the line of subsequent General Assembly calls to respect the

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principle, binding, something more is needed to establish [opinio juris] than a mere affirmative vote (or failure to oppose a resolution adopted by consensus).” Legality of the Threat or Use of Nuclear Weapons, [1996] ICJ Rep 226, at [71]. “[I]t is necessary to look at its content and the conditions of its adoption; it is also necessary to see whether an opinio juris exists as to its normative character. Or a series of resolutions may show the gradual evolution of the opinio juris required for the establishment of a new rule”: ibid. An extreme interpretation is that “[t]his decision goes much farther than its predecessors in transforming [General Assembly resolutions] from exhortations or ‘soft law’ principles into ‘hard law’ prescriptions, at least in the eyes of the Court . . . Every resolution that purports to express a legal norm, even a ‘soft law’ exhortation or aspiration, has the potential of being recognized by the Court as a binding and strictly enforceable obligation, at least for those states which did not expressly dissent from it”: F. Morrison, “Legal Issues in the Nicaragua Opinion,” (1987) 81 American Journal of International Law 160, at 161. As James Crawford helpfully reminds us, “[o]f course, the General Assembly is not a legislature. Mostly its resolutions are only recommendations, and it has no capacity to impose new legal obligations on states”: J. Crawford, The Creation of States in International Law (2006) (Crawford, Creation of States), at 113. See generally A. Grahl-Madsen, Territorial Asylum (1980). E. Lapenna, “Territorial Asylum – Developments from 1961 to 1977 – Comments on the Conference of Plenipotentiaries,” (1978) 16 AWR Bulletin 1, at 4. A helpful contrast is provided by the facts of the Fisheries Jurisdiction Case (United Kingdom v. Iceland), [1974] ICJ Rep 3, at [56], noting that the opinio juris contended for by Iceland – a provision for special treatment of states overwhelmingly dependent on fishing – initially “failed to obtain the majority required, but a resolution was adopted at the 1958 Conference concerning the situation of countries or territories whose people are overwhelmingly dependent upon coastal fisheries for their livelihood or economic development.” Costello and Foster, “Custom and Jus Cogens,” at 287–289. This argument has also been made by the UNHCR. “The principle of non-refoulement has been consistently referred to by the United Nations General Assembly in its various resolutions on the High Commissioner’s Annual Report. The Office of UNHCR considers that these references

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duty of non-refoulement, often said to apply to “asylum-seekers” as well as to refugees.727 The regularity of the endorsement of non-refoulement in the General Assembly728 is noteworthy and goes some distance in support of the claim that there is opinio juris for a duty of non-refoulement owed to more than just Convention refugees. On the other hand, it is important not to overstate the import of these resolutions: the General Assembly has never declared there to be a customary legal duty of non-refoulement;729 the closest it has come was once to “welcome” a resolution of state parties to the Refugee Convention in which it was said that “the core principle of non-refoulement . . . is embedded in customary international law.”730 More commonly, however, the General Assembly ties its advocacy of non-refoulement to a call to states to accede to, or to honor duties under, specific treaties that contain a non-refoulement

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to the principle of non-refoulement, taken together with the . . . Conclusions of the [UNHCR] Executive Committee[,] constitute further evidence of its acceptance as a basic normative principle”: UNHCR, “The Principle of Non-refoulement as a Norm of Customary International Law: Response to the Questions Posed to UNHCR by the Federal Constitutional Court of the Federal Republic of Germany in Cases 2 BvR 1938/93, 2 BvR 1953/93, 2 BvR 1954/93,” Jan. 31, 1994, at [43]. See e.g. the references to non-refoulement in resolutions adopted routinely by the General Assembly upon receiving the High Commissioner’s annual report: UNGA Res. 38/121, adopted Dec. 16, 1983; UNGA Res. 39/140, adopted Dec. 14, 1984; UNGA Res. 40/118, adopted Dec. 13, 1985; UNGA Res. 41/124, adopted Dec. 4, 1986; UNGA Res. 42/109, adopted Dec. 7, 1987; UNGA Res. 43/117, adopted Dec. 8, 1988; UNGA Res. 44/137, adopted Dec. 15, 1989; UNGA Res. 45/140, adopted Dec. 14, 1990; UNGA Res. 46/106, adopted Dec. 16, 1991; UNGA Res. 47/105, adopted Dec. 16, 1992; UNGA Res. 48/116, adopted Dec. 20, 1993; UNGA Res. 49/169, adopted Dec. 23, 1994; UNGA Res. 50/152, adopted Dec. 21, 1995; UNGA Res. 51/75, adopted Dec. 12, 1996; UNGA Res. 52/103, adopted Dec. 12, 1997; UNGA Res. 53/125, adopted Dec. 9, 1998; UNGA Res. 54/146, adopted Dec. 17, 1999; UNGA Res. 55/74, adopted Dec. 4, 2000; UNGA Res. 56/137, adopted Dec. 19, 2001; UNGA Res. 57/187, adopted Dec. 18, 2002; UNGA Res. 58/151, adopted Dec. 22, 2003; UNGA Res. 59/170, adopted Dec. 20, 2004; UNGA Res. 60/129, adopted Dec. 16, 2005; UNGA Res. 61/137, adopted Dec. 19, 2006; UNGA Res. 62/124, adopted Dec. 18, 2007; UNGA Res. 63/127, adopted Dec. 11, 2008; UNGA Res. 63/148, adopted Dec. 18, 2008; UNGA Res. 64/127, adopted Dec. 16, 2009; UNGA Res. 65/194, adopted Dec. 21, 2010; UNGA Res. 66/133, adopted Dec. 19, 2011; UNGA Res. 67/149, adopted Dec. 20, 2012; UNGA Res. 68/141, adopted Dec. 18, 2013; UNGA Res. 69/152, adopted Dec. 18, 2014; UNGA Res. 71/1, adopted Oct. 3, 2016; UNGA Res. 71/72, adopted Dec. 19, 2016; and UNGA Res. 73/151, adopted Dec. 17, 2018. There is moreover no pattern of substantial negative votes or abstentions of a kind that would negate the opinio juris value of the resolutions: Legality of the Threat or Use of Nuclear Weapons, [1996] ICJ Rep 226, at [71]. Costello and Foster are correct, of course, that the absence of specific language does not render the resolutions irrelevant to the opinio juris claim: Costello and Foster, “Custom and Jus Cogens,” at 287. UNGA Res. 57/187 (2011), at [4]. Given the neutral “welcome” language, it surely overstates the case to claim that “its endorsement by the General Assembly ensures that it has the approval and agreement of all members of the United Nations [emphasis added]”: Costello and Foster, “Custom and Jus Cogens,” at 289.

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duty731 – hardly the basis for arguing an agreed sense of obligation beyond those treaties. Costello and Foster bolster their opinio juris claim by drawing on the work of the UNHCR’s Executive Committee, comprised mainly but not exclusively of state parties to the Refugee Convention. They quite rightly note the regularity of this body’s calls for observance of the duty of non-refoulement, though the fact that the duty is never framed by the Executive Committee as a customary international legal duty is surely noteworthy.732 More generally, though, caution is warranted since the Executive Committee – while a clear factor in identifying context relevant to interpretation of the Refugee Convention733 – is not a body charged with undertaking interstate deliberations on the scope of broad, global human rights obligations. Most fundamentally, though, such resolutions are merely one factor to consider in the assessment of opinio juris.734 They must be weighed up against contrary indications,735 in particular those emanating from states not already bound by treaty to avoid the refoulement of refugees.736 Apart from the failure of (and failure to resuscitate over the ensuing forty years) the territorial asylum initiative described above,737 the major contraindication is the persistent refusal of states outside the Refugee Convention regime – predominantly in Asia and the Middle East – to voice support for the view that they are legally obligated to avoid the refoulement of refugees.738 Indeed, what is perhaps most 731 732

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Costello and Foster, “Custom and Jus Cogens,” at 288. Ibid. at 290–291. The authors inexplicably invoke the frequency of the Executive Committee’s rather bland call on “all States to abide by their international obligations in this respect” (ibid. at 291); this phrasing merely calls on states to honor whatever duties they have, rather than suggesting that the Executive Committee believes there is some broader duty arising by custom. See Chapter 2.2. “A resolution adopted by an international organization or at an intergovernmental conference cannot, of itself, create a rule of customary international law”: International Law Commission, “Identification of Customary International Law,” UN Doc. A/CN.4/ L.872, May 30, 2016, at draft conclusion 12(1). “Caution is required when seeking through written texts, such as treaties and resolutions, to identify rules of customary international law . . . [A]ll of the surrounding circumstances need to be considered and weighed”: International Law Commission, “Third Report on Identification of Customary International Law,” UN Doc. A/CN.4/682, Mar. 27, 2015, at [29]. “To begin with, over half the States concerned, whether acting unilaterally or conjointly, were or shortly [afterward] became parties to the Geneva Convention, and were therefore presumably, so far as they were concerned, acting actually or potentially in the application of the Convention. From their action no inference could legitimately be drawn as to the existence of a rule of customary international law in favour of the equidistance principle”: North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), [1969] ICJ Rep 3, at [76]. See text at note 723. As much is impliedly conceded by the UNHCR, which observed that when it has made representations to non-party states that they are bound to avoid the refoulement of

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striking is that many of these same states have legally bound themselves to other non-refoulement obligations, in particular to avoid the return of those at risk of torture.739 Their reluctance to agree to guarantee refugees access to the same mechanism of protection is thus unlikely to be an accident.740 The unwillingness of most states in Asia and the Middle East to accept a legal obligation to avoid the refoulement of refugees is moreover borne out in the facts that the Arab Refugee Convention is still not in force a quarter century after its adoption741 and that Asian states have to date agreed to adopt only non-binding initiatives in relation to refugee protection.742 While it is of course true that such states have often agreed to admit refugees and other human rights victims and have also negotiated context-specific arrangements with UNHCR,743 there is no evidence that the openness they have

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refugees, “the Governments approached have almost invariably reacted in a manner indicating that they accept the principle of non-refoulement as a guide for their action [emphasis added]”: UNHCR, “The Principle of Non-refoulement as a Norm of Customary International Law: Response to the Questions Posed to UNHCR by the Federal Constitutional Court of the Federal Republic of Germany in Cases 2 BvR 1938/93, 2 BvR 1953/93, 2 BvR 1954/93, Jan. 31, 1994,” at [5]. Accepting something as a “guide for action” is a far cry from the required standard of accepting it as legally obligatory. Participation in both the Torture Convention (containing an express duty of non-refoulement in Art. 3) and the Civil and Political Covenant (containing an implied duty of non-refoulement in relation to Arts. 6 and 7) is reasonably strong. 60% of Asia/Pacific states and 90% of Middle Eastern/North African countries are parties to the Torture Convention, while 63% of Asia/ Pacific countries and 81% of Middle Eastern/North African nations are parties to the Civil and Political Covenant: Office of the High Commissioner on Human Rights (OHCHR), https:// treaties.un.org, accessed Dec. 21, 2020. Calculations for each category were based on OHCHR’s classifications for the MENA and Asia-Pacific regions, with two modifications: Central and Western Asian nations were also referenced, and Iran and Afghanistan were counted as falling in the MENA region rather than in the Asia-Pacific. Fewer than half of the states in each region have accepted a treaty-based duty of nonrefoulement vis-à-vis refugees. Only about 40 percent of Asian and Middle Eastern/North African states have acceded to either the Refugee Convention or Protocol: UNHCR, “State Parties to the 1951 Convention relating to the Status of Refugees and the 1967 Protocol,” www.unhcr.org, accessed Feb. 5, 2020. Calculations for each category were based on OHCHR’s classifications for the MENA and Asia-Pacific regions, with two modifications: Central and Western Asian nations were also referenced, and Iran and Afghanistan were counted as falling in the MENA region rather than in the Asia-Pacific. This refusal formally to be bound by the duty to avoid the refoulement of refugees is moreover longstanding: see Hailbronner, “Wishful Legal Thinking?,” at 128–129. See Chapter 1.5.3 at note 356. See Chapter 1.5.3 at note 369. Indeed, the only recent non-binding pact is the sub-regional ASEAN Declaration (see Chapter 1.5.3 at note 357). The single pan-Asian statement has not generated a binding treaty more than fifty years after its adoption: Asian-African Legal Consultative Organization, “Bangkok Principles on the Status and Treatment of Refugees,” adopted Dec. 31, 1966. Reliance is sometimes placed on express acknowledgments of the duty of non-refoulement in bilateral arrangements between regional states and the UNHCR. While cooperation agreements can be a source of protection for refugees (see generally M. Zieck, UNHCR’s

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shown – often partial, and usually highly conditional744 – has been influenced by a sense of legal obligation745 (rather than, for example, following simply from political or economic calculus, social or cultural affiliation, or a sense of moral responsibility).746 A former Chief Justice of India, for example, affirmed that while courts in his country “have stepped in” on occasion to prevent refugee deportations, “most often these are ad hoc orders. And an ad hoc order certainly does not advance the law. It does not form part of the law, and it certainly does not make the area clear.”747 As the ICJ noted in the North

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Worldwide Presence in the Field: A Legal Analysis of UNHCR’s Cooperation Agreements (2006), at 322), they are not really a dependable indicator of opinio juris in relation to nonrefoulement. For example, despite having executed such an agreement Jordan simply closed its borders to Palestinian and Iranian Kurdish refugees in 2006 on the basis of capacity and concerns that the refugees would not depart even when the risk abated: Human Rights Watch, “Nowhere to Flee: The Perilous Situation of Palestinians in Iraq,” Sept. 2006 (Human Rights Watch, “Nowhere to Flee”), at 38. In the case of Lebanon, for example, a government representative explained to a UN human rights supervisory committee that “[t]he direct and indirect losses incurred by the Lebanese economy had been estimated at US$13 billion. The unemployment rate had risen and investment indicators had declined. Repeated terrorist attacks on the borders and within the country had seriously challenged the security forces. The Government had therefore decided in late 2014 to regulate the entry of Syrians into Lebanon with a view to preventing the collapse of the host country. Syrians were not prohibited from entering Lebanon. They were admitted if they sought temporary residence in accordance with the existing legislation. However, if they sought permanent residence as refugees or immigrants, each case was studied separately and an appropriate decision was taken”: Statement of Ms. Assaker to the UN Committee on the Elimination of Racial Discrimination, UN Doc. CERD/C/SR.2463, Aug. 11, 2016, at [5], reported in M. Janmyr, “No Country of Asylum: ‘Legitimizing’ Lebanon’s Rejection of the 1951 Refugee Convention,” (2017) 29(3) International Journal of Refugee Law 438, at 454. See generally M. Kagan, “The Beleagured Gatekeeper: Protection Challenges Posed by UNHCR Refugee Status Determination,” (2006) 18(2) International Journal of Refugee Law 1. “[T]he general practice . . . must be undertaken with a sense of legal right or obligation”: International Law Commission, “Identification of Customary International Law,” UN Doc. A/CN.4/L.872, May 30, 2016, at draft conclusion 9(1). For this reason, it is insufficient to say simply that the fact that “[s]ome specially affected States [that] have acceded to neither the 1951 Convention nor the 1967 Protocol . . . have hosted large numbers of refugees for many years indicates that their behaviour is in line with the principle of non-refoulement” (Kälin, “Article 33, para. 1,” at 1343–1344. While self-interest can coexist with a sense of legal obligation (see G. Norman and J. Trachtman, “The Customary International Law Game,” (2005) 99 American Journal of International Law 541, at 571), proponents of a customary norm must be able to identify some evidence that relevant and consistent state actions are taken out of a sense of legal obligation. J. Verma, “Inaugural Address,” in UNHCR and SAARCLAW eds., Seminar Report: Refugees in the SAARC Region: Building a Legal Framework (1997), at 13–18. Accord P. Saxena, “Creating Legal Space for Refugees in India: The Milestones Crossed and the Roadmap for the Future,” (2007) 19(2) International Journal of Refugee Law 246, at 255: “A plethora of unreported cases demonstrates that the courts have treated these matters on purely technical grounds; no pronouncements of law are made nor are any general guidelines laid. This explains why the majority of these cases do not find a place in law

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Sea Continental Shelf Cases, such actions do not support a finding of opinio juris.748

4.1.6.2 Consistent State Practice? Even if opinio juris could be located, the next question that must be addressed is whether there is evidence of consistent and relatively uniform state practice that aligns with the putative norm (the second essential element for establishment of a customary law).749 Sadly, there is in fact very significant empirical evidence that does exactly the opposite. As the analysis earlier in the chapter makes clear, there is a long-standing and extensive pattern of refoulement across the world, including complete

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reports. Interim non-speaking orders may provide relief in individual cases, but their contribution to jurisprudence is negligible, even negative at times. Ranabir Samaddar has agreed that the judicial reasoning has been mainly humanitarian and not rights based, dispensing kindness and not justice, and that the Court has nothing to say on the ‘refugeesituation.’” See also O. Chaudhary, “Turning Back: An Assessment of Non-refoulement under Indian Law,” (2004) 39 Economic and Political Weekly 3257. But see V. Vijayakumar, “Judicial Responses to Refugee Protection in India,” (2000) 12(2) International Journal of Refugee Law 235, at 235–236, arguing that Indian court decisions have provided “a series of rights to the millions of refugees who had to cross the internationally recognized borders and continue to stay in India.” “As regards those States, on the other hand, which were not, and have not become parties to the Convention, the basis of their action can only be problematical and must remain entirely speculative. Clearly, they were not applying the Convention. But from that no inference could justifiably be drawn that they believed themselves to be applying a mandatory rule of customary international law. There is not a shred of evidence that they did and . . . there is no lack of other reasons for using the equidistance method, so that acting, or agreeing to act in a certain way, does not of itself demonstrate anything of a juridical nature . . . The frequency, or even habitual character of the acts is not itself enough”: North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), [1969] ICJ Rep 3, at [76]–[77]. Hudson’s classic definition speaks of four elements, including “(a) concordant practice by a number of States with reference to a type of situation falling within the domain of international relations; (b) continuation or repetition of the practice over a considerable period of time; (c) conception that the practice is required by, or consistent with, prevailing international law; and (d) general acquiescence in the practice by other States”: M. Hudson, [1950] 2 Year Book of the International Law Commission 26, UN Doc. A/ CN.4/SER.A/1950/Add.1. Elements (a), (b), and (d) have converged over time in the requirement to demonstrate that “the conduct of States should, in general, be consistent with [the putative norm]”: Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Merits, [1986] ICJ Rep 14, at [186]. Yet “[i]t is not to be expected that in the practice of States the application of the rules in question should have been perfect, in the sense that States should have refrained, with complete consistency, from [actions prohibited by the putative norm]”: ibid. at [185]. Hudson’s element (c) remains a second and independent criterion for recognition of a rule of customary international law. “It is of course axiomatic that the material of customary international law is to be looked for primarily in the actual practice and opinio juris of States”: Continental Shelf (Libyan Arab Jamahiriya v. Malta), Judgment, [1985] ICJ Rep 13, at [27].

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border closures;750 the erection of barriers to entry;751 unilateral, bilateral, and multilateral interdiction efforts;752 summary ejection of refugees from asylum state territory, both as formal policy and informally;753 refusal of access to protection procedures;754 removal of refugees in consequence of practical deficiencies in processing systems;755 thinly disguised refoulement under the guise of “voluntary” repatriation;756 the creation of protection gaps by adoption of non-entrée policies, including visa requirements, first country of arrival rules, safe third country systems, and designation of countries of origin as presumptively safe;757 and formal excision of territory so as to avoid protection obligations.758 There is, in short, pervasive state practice that denies in one way or another the right to be protected against refoulement; indeed, as the informal survey at the start of this chapter makes clear, in recent years nearly sixty countries have participated in acts amounting to refoulement.759 And while this pattern of disrespect is tragically global in scale, for purposes of customary international lawmaking it is especially noteworthy that fully one-quarter of the states that have not signed the Refugee Convention or Protocol have engaged in the refoulement of refugees.760 How, then, can it be argued that there is relatively consistent state practice – especially in non-party states – that conforms to the putative universal duty to protect refugees and other human rights victims against refoulement? First, some argue that the depth and consistency of state practice required for the establishment of customary international law should not be overstated. So long as respect for non-refoulement remains the norm, it is suggested that 750 753 756 759

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751 752 See text at note 10 ff. See text at note 22 ff. See text at note 29 ff. 754 755 See text at note 53 ff. See text at note 74 ff. See text at note 79 ff. 757 758 See text at note 84 ff. See text at note 92 ff. See text at note 128 ff. See text at notes 10–131. This evidence of non-conforming state practice is moreover restricted to the comparatively well-protected category of “refugees”; it is likely that the refoulement of the broader categories of human rights victims claimed by Lauterpacht/ Bethlehem and Costello/Foster to be part of the beneficiary class of the customary norm is even more pervasive. These include Bangladesh, Indonesia, Jordan, Libya, Malaysia, Nepal, Pakistan, Saudi Arabia, Thailand, Turkey (being effectively a non-party due to its geographical reservation: see Chapter 1.4.3), and Uzbekistan: See text at notes 10–131. Costello and Foster seek to downplay the significance of discordant practice by these countries, arguing that it is not clear that they meet the definition of “specially affected” states said to be of particular importance by the ICJ in North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), [1969] ICJ Rep 3, at [74]. In truth, each of the possible measures of “specially affected” they propose – refugee hosting in “gross terms, per capita, or relative to GDP” (Costello and Foster, “Custom and Jus Cogens,” at 292) – would result in most of the states named here being deemed specially affected by refugee arrivals. They also question the general notion of “quantitative assessment” as the basis for being “specially affected” altogether: ibid. But see e.g. Kälin, “Article 33, para. 1,” at 1343, n. 84 (in which “specially affected” states analyzed are those “among the top 10 refugee hosting countries”).

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the state practice requirement is met. Second, and impliedly conceding the inadequacy of an empirical record of concordant practice, there is authority for the view that so long as there is an effort to justify acts of refoulement as permissible exceptions to the alleged norm, practice that is on its face violative of the norm is in fact supportive of it. And third and most significantly, it is claimed that while state practice is required, real state action on the ground may be overcome by alternative “practice” in the form of verbal commitments to protect refugees against refoulement. Each of these claims fails in the context of the putative customary duty of non-refoulement. First, what of the view that the depth and consistency of state practice required for the establishment of customary international law should not be overstated? There has certainly been a trend in the ICJ jurisprudence to soften the standard of uniformity required. While the 1950 Asylum decision spoke of “constant and uniform usage,”761 the 1969 North Sea Continental Shelf cases stated the test as “extensive and virtually uniform”762 practice, and the Nicaragua decision of 1986 determined that “absolutely rigorous conformity”763 is not required. It is thus easy to see why scholars are disinclined to set an overly demanding threshold of consistency of state practice. Crawford, for example, opined that consistency of state practice “is very much a matter of appreciation.”764 That having been said, there is little doubt that clearly predominant global practice remains a requirement for the establishment of a customary legal duty. The ICJ’s exhortation in the Asylum decision that “fluctuation and discrepancy”765 in practice undermines the argument for custom is a helpful, and surely not overstated, indicator of the circumstances in which consensus through action is simply not present.766 While those seeking to downplay the relevance of practice often rely on the Court’s statement in Nicaragua that custom can arise despite “not infrequent”767 inconsistent practice, this obiter dictum768 must be balanced against the same judgment’s insistence that a 761 762

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Asylum Case (Colombia v. Peru), [1950] ICJ Rep 266, at 276. North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), [1969] ICJ Rep 3, at [74]. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Merits, [1986] ICJ Rep 14, at [186]. Crawford, Brownlie’s Public International Law, at 24. Hersch Lauterpacht cautions, however, that “because of the underlying requirement of consent, the condition of constancy and uniformity is liable on occasion to be interpreted with some rigidity when there is a question of ascertaining a customary rule of general validity”: E. Lauterpacht ed., International Law: The Collected Papers of Hersch Lauterpacht 62 (1970). Asylum Case (Colombia v. Peru), [1950] ICJ Rep 266, at 277. “State practice, the material element, provides the concrete evidence of normative conviction”: Kelly, “Twilight,” at 500. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Merits, [1986] ICJ Rep 14, at [202]. In the same paragraph, the Court found that “[t]he existence in the opinio juris of States of the principle of non-intervention is backed by established and substantial practice”: ibid.

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“settled practice”769 be identified. More specifically, as Villiger writes, state practice for a customary norm binding all states must at least be “general” in the sense “that common and widespread practice among many States is required. While universal practice is not necessary, practice should be ‘representative,’ at least of all major political and socio-economic systems.”770 Assessed against even this relatively low benchmark, the case for identification of consistent state practice in line with a broadly inclusive duty of nonrefoulement fails. To suggest that there is anything approaching a “settled practice” of non-refoulement defies the facts.771 Nor is the case for a settled practice in line with the duty of non-refoulement assisted by a second argument, namely that breaches can sometimes support a finding of consistent state practice.772 The ICJ’s Nicaragua judgment, generally regarded as the most authoritative statement of this rule,773 is at pains carefully to explain the basis for its holding that “instances of State conduct inconsistent with a given rule . . . treated as breaches of that rule”774 contribute to a finding of consistent state practice in support of the norm: If a State acts in a way prima facie incompatible with a recognized rule, but defends its conduct by appealing to exceptions or justifications contained within the rule itself, then whether or not the State’s conduct is in fact justifiable on that basis, the significance of that attitude is to confirm rather than to weaken the rule.775

In that case, the question was whether instances of foreign intervention in support of an internal opposition group espousing “worthy . . . political or moral values”776 – at least prima facie in breach of the putative norm of nonintervention – had been defended on the basis of justifications or exceptions said to be part of the putative norm itself. The manner in which the argument was rejected is instructive: [T]he Court finds that States have not justified their conduct by reference to a new right of intervention or a new exception to the principle of its prohibition. The United States authorities have on some occasions clearly stated their grounds for intervening in the affairs of a foreign State for 769 771

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Ibid. at [207]. 770 Villiger, Interrelation of Sources, at 29. In recent years, at least sixty states have participated in acts amounting to refoulement: see text at note 759. Moreover one-quarter of non-party states have engaged in refoulement: see note 160. It is of course correct that the existence of a customary norm “does not depend on the absence of any violation”: Kälin, “Article 33, para. 1,” at 1345. But such violations must be comparatively infrequent, and certainly not as pervasive as the ongoing pattern of breaches of the duty of non-refoulement in all parts of the world summarized here. Villiger, Interrelation of Sources, at 44. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Merits, [1986] ICJ Rep 14, at [186]. Ibid. 776 Ibid. at [206].

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reasons concerned with, for example, the domestic policies of that country, its ideology, the level of its armaments, or the direction of its foreign policy. But these were statements of international policy, and not an assertion of rules of existing international law. In particular, as regards the conduct towards Nicaragua which is the subject of the present case, the United States has not claimed that its intervention, which it justified in this way on the political level, was also justified on the legal level, alleging the exercise of a new right of intervention.777

Much the same concerns arise from an examination of state practice of refoulement. To begin with, many instances of refoulement appear not to be justified at all – they simply occur.778 And where an effort to justify refoulement is made, states tend to offer only blunt and unsubstantiated assertions that those seeking protection are not refugees or that the political cost of protection is too high.779 There is, in short, rarely an effort made to justify turn-backs and other acts of refoulement by reference to the norm of non-refoulement itself, much less by arguing the applicability of the internal limitations to that duty.780 777 778

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Ibid. at [207]–[208]. For example, Uganda provided no explanation for luring Rwandan refugees into trucks and returning them to the border: See text at note 55. Egypt summarily sent Sudanese refugees back to Sudan in 2007, as well as Eritrean refugees to Eritrea in 2008 with no explanation or justification given: Amnesty International, “Egypt/Israel: Fear For Safety,” Doc. MED 15/038/2008/UA/241/08, Sept. 3, 2008. And US President Bush simply declared, “We will turn back any refugees that attempt to reach our shore, and that message needs to be very clear as well to the Haitian people”: Human Rights Watch, “US: Don’t Turn Away Haitian Refugees,” Feb. 26, 2004. As Kelly observes, “[n]ations do not regularly explain the legal basis of their actions, nor is it clear how to determine the normative belief of hundreds of states, many of whom have never had the opportunity or need to express their opinion on a particular principle”: Kelly, “Twilight,” at 470. For example, Greece has asserted that whole groups of persons seeking protection are not refugees, treating them simply as unauthorized migrants: USCRI, World Refugee Survey 2008; see also S. Troller, “Greece does EU’s Migration Dirty Work,” Guardian (Jan. 25, 2009). Other examples of unsubstantiated categorical reclassification of refugees to avoid the duty of non-refoulement include Spain’s summary classification of refugees arriving at Ceuta and Melilla as “illegal migrants” subject to removal (See text at note 77); China’s claim that all North Korean refugees are merely “food migrants” or “defectors” who should be returned (see note 61); and Burundi’s reclassification of persons found to be refugees by UNHCR as mere migrants subject to deportation (see note 62). Broad-brush allegations that protection would not be considered because the costs or risks were deemed too high include Niger’s summary removal of Nigerian refugees after attacks by Boko Haram (See text at note 66); and the return to China of Uighur and other refugees after pressure was put on Cambodia, Kazakhstan, Nepal, and Thailand (See text at notes 59–60). Lauterpacht and Bethlehem argue that the only internal limitation to the putative customary norm is where a state demonstrates “[o]verriding reasons of national security or safety . . . in circumstances in which the threat of persecution does not equate to and would not be regarded as being on par with a danger of torture or cruel, inhuman or degrading treatment or punishment and would not come within the scope of other non-derogable

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As such, inconsistent practice is just that – inconsistent, and hence at odds with the assertion of a customary legal duty. There is in any event an unanswered foundational question: while non-conforming conduct might be treated as a breach of the rule rather than undermining it if routinely treated as such,781 there must still have been some moment when the practice of non-refoulement met the foundational standard of being consistently aligned with the putative norm. Yet no advocate of ignoring inconsistent practice has ever identified the moment at which the requisite respect for non-refoulement existed, allowing the norm to crystallize. This analysis leaves us, then, with one final argument in support of state practice sufficient to ground a broad duty of non-refoulement in customary international law. The essence of the argument is that a very broad reading of “state practice” is justified under which words alone may amount to “practice.” The proponents of this position look to many of the same statements relied upon to show opinio juris as the relevant practice in support of the norm, and thereby arrive at the conclusion that consistent state “practice” can be located despite the evidence of non-conforming “practice on the ground” identified above.782 It is in regard to this issue that the rules of customary law formation are most contested.783 As Kammerhofer explains, there is a tendency among many academics to define “practice” in a way that obviates the distinction between practice and opinio juris: Behind the apparent dichotomy of “acts” and “statements” lies a more important distinction: that between one argument that sees practice as the exercise of the right claimed and the other that includes the claims

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customary principles of human rights. The application of these exceptions is conditional on the strict compliance with principles of due process of law and the requirements that all reasonable steps must first be taken to secure the admission of the individual concerned to a safe third country”: Lauterpacht and Bethlehem, “Non-refoulement,” at [253]. It is sadly not accurate to suggest that “acts of refoulement are virtually always condemned by States” (UNHCR, Intervention before the Court of Final Appeal of the Hong Kong Special Administrative Region in the case between C, KMF, BF (Applicants) and Director of Immigration, Secretary for Security (Respondents), Civil Appeals Nos. 18, 19, and 20 of 2011, Jan. 31, 2013, at [67]). To the contrary, specific condemnation by other states or interstate bodies is rare; most engagement with refoulement is at the level of vague generality only. Yet “[w]hen seeking to identify the existence of a rule of customary international law, evidence of the relevant practice should . . . generally not serve as evidence of opinio juris as well: such ‘double counting’ (repeat referencing) is to be avoided”: International Law Commission, “Third Report on Identification of Customary International Law,” UN Doc. A/CN.4/682, Mar. 27, 2015, at [15]. Examples of the classic opposition are those who assert that only physical acts count as practice, e.g. A. D’Amato, The Concept of Custom in International Law (1971); and, arguing that custom may be based on verbal acts alone, B. Cheng, “Custom: The Future of General State Practice in a Divided World,” in R. Macdonald and D. Johnston eds., The Structure and Process of International Law: Essays in Legal Philosophy Doctrine and Theory 532 (1983).

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themselves and thus blurs the border between the concept of “state practice” and “opinio juris.”784

This is indeed the nub of the controversy: despite the continued insistence of the ICJ that there are two, not one, essential elements to the formation of customary international law,785 there seems to be a determined academic effort to downplay that requirement. The Final Report of the International Law Association (ILA) Committee on Formation of Customary (General) International Law786 provides a classic example of this propensity to confuse: The Court has not in fact said in so many words that just because there are (allegedly) distinct elements in customary law the same conduct cannot manifest both. It is in fact often difficult or even impossible to disentangle the two elements.787

The language used is quite extraordinary: note that the ILA does not say that the International Court of Justice has held that both elements of custom may be manifested by the same, presumably purely verbal, evidence, but rather simply that it “has not . . . said in so many words” that it cannot! This cautious, if convoluted, framing is to some extent understandable given the actual state of ICJ jurisprudence. The decision in Nicaragua, while often cited as the leading source of the notion that words alone can constitute state practice,788 did not actually reach that conclusion. The focus of the dispute was whether there was a customary norm prohibiting the threat or use of force against the territorial integrity or political independence of a state that parallels the treaty-based rule in Art. 2(4) of the UN Charter.789 The Court was insistent that a customary norm could arise only upon proof of “the actual practice and opinio juris of States.”790 For good measure, it added: The mere fact that States declare their recognition of certain rules is not sufficient for the Court to consider these as being part of customary international law . . . [I]n the field of customary international law, the shared view of the Parties as to the content of what they regard as the rule is not enough. The Court must satisfy itself that the existence of the rule in the opinio juris of States is confirmed by practice.791 784 786 788

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Kammerhofer, “Uncertainty,” at 525. 785 See text at note 698. ILA, “General Custom.” 787 Ibid. at [10(c)]. See e.g. Franck, “Innovations,” at 118–119; S. Donaghue, “Normative Habits, Genuine Beliefs and Evolving Law: Nicaragua and the Theory of Customary International Law,” (1995) 16 Australian Year Book of International Law 327 (Donaghue, “Normative Habits”), at 338; Villiger, Interrelation of Sources, at 20. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Merits, [1986] ICJ Rep 14, at [188]. Ibid. at [183], quoting from Continental Shelf (Libyan Arab Jamahiriya v. Malta), Judgment, [1985] ICJ Rep 13, at [27]. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Merits, [1986] ICJ Rep 14, at [184].

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The common confusion about just what the Court decided arises from the fact that it took what can only be described as a fairly slipshod approach to the assessment of state practice before focusing on the issue of opinio juris.792 Implicit in its analysis that “[i]t is not to be expected that in the practice of States the application of the rules in question should have been perfect,”793 that “rigorous conformity”794 is too high a standard, and that prima facie violations justified by reference to the rule itself “confirm rather than weaken the rule”795 is an assumption – admittedly, an empirically suspect assumption796 – that one could reasonably assume evidence of relatively consistent state practice of nonintervention other than as authorized by the Charter.797 Because the parties chose not to contest the issue of state practice, the Court understandably focused its analysis on the opinio juris question, finding (as previously noted)798 that a wide-ranging set of verbal acts could give rise to opinio juris.799 The Court is, however, explicit that these verbal acts are approved strictly as forms of opinio juris, not state practice.800 As such, and despite the failure of the Court clearly to interrogate the state practice dimension of the claim, it is disingenuous to suggest that its lack of precision in this regard amounts to an endorsement of a new theory of customary international law formation in which state practice is rendered virtually identical to opinio juris. If this had been the Court’s intention, why would it have been at such pains to confirm the traditional two-part test and address the sufficiency of imperfect state practice? Nor is it the case that the International Law Commission has sought to roll back the International Court of Justice’s affirmation that words should not be

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“In Nicaragua . . . the ICJ discussed the requirement of state practice, but neither analyzed, nor cited examples of this element”: Kelly, “Twilight,” at 476, n. 112. See also Franck, “Innovations,” at 118–119, and F. Kirgis, “Custom on a Sliding Scale,” (1987) 81 American Journal of International Law 146 (Kirgis, “Sliding Scale”), at 147. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Merits, [1986] ICJ Rep 14, at [186]. Ibid. 795 Ibid. 796 Franck, “Innovations,” at 118–119; Kirgis, “Sliding Scale,” at 147. Having found there to be “abstention” from the use of force other than as authorized by the UN Charter, the Court turned to the issue of opinio juris: Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Merits, [1986] ICJ Rep 14, at [188]. See text at note 704. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Merits, [1986] ICJ Rep 14, at [188]–[190]. “The Court has however to be satisfied that there exists in customary international law an opinio juris as to the binding character of such abstention. This opinio juris may, though with all due caution, be deduced from, inter alia, the attitude of the Parties and the attitude of States towards certain General Assembly resolutions . . . It would therefore seem apparent that the attitude referred to expresses an opinio juris respecting such rules (or set of rules), to be thenceforth treated separately from the provisions, especially those of an institutional kind, to which it is subject on the treaty-law plane of the Charter”: ibid. at [188].

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double-counted as both opinio juris and practice.801 In its 2016 report on identification of customary international law,802 the Commission did agree that relevant practice may include “both physical and verbal acts.”803 Critically, however, in its list of relevant examples of practice it cites only three purely verbal forms of practice – diplomatic acts and correspondence, legislative and administrative acts, and decisions of national courts804 – none of which is remotely controversial. Beyond this short list, however, practice is not purely verbal, but consists rather of executive conduct, including operational conduct on the ground; conduct in connection with resolutions adopted by an international organization or at an intergovernmental conference; and conduct in connection with treaties.805 It follows that the notion that verbiage without concordant state practice gives rise to customary law is at best de lege ferenda rather than settled law. Indeed, the approach might well be seen to amount to a disingenuous circumvention of the requirements of lawmaking by treaty.806 Customary law is not simply a matter of words, wherever spoken and however frequently recited: custom can evolve only through practice in which governments effectively agree to be bound through the medium of their conduct. To treat words not simply as opinio juris807 but as binding in and of themselves would, as Kelly rightly asserts, be to “constitute a new legislative form of lawmaking, not customary international law based on state behavior accepted as law.”808 Proponents of an exaggerated definition of state “practice” deny the most elementary distinction between treaties and custom: custom is not simply about words, but is a function of what is happening in the real world;809 it is 801

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But see Costello and Foster, “Custom and Jus Cogens,” at 298: “As is evident from [the ILC] list, some factors are considered relevant both to establishing opinio juris and state practice.” International Law Commission, “Identification of Customary International Law,” UN Doc. A/CN.4/L.872, May 30, 2016. Ibid. at Draft conclusion 6(1). 804 Ibid. at Draft conclusion 6(2). Ibid. at Draft conclusion 6(2). “[T]hat customary international law furnishes a means to develop universal norms when actual agreement is difficult or inconvenient cannot justify norms when there is no genuine acceptance”: Kelly, “Twilight,” at 537. See text at note 701 ff. 808 Kelly, “Twilight,” at 486. The International Court of Justice has, however, taken the position that “[w]hen it is the intention of the State making [a] declaration that it should become bound according to its terms, that intention confers on the declaration the character of a legal undertaking, the State being thenceforth legally required to follow a course of conduct consistent with that declaration. An undertaking of this kind, if given publicly, and with an intent to be bound, even though not made within the context of international negotiations, is binding”: Nuclear Tests (Australia v. France), [1974] ICJ Rep 253, at 267; endorsed in Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Merits, [1986] ICJ Rep 14, at [39]–[40]. It seems clearly to have been the Court’s intention to constrain this doctrine; however, the same result could readily have been avoided by reliance on such general principles of law as acquiescence or estoppel. A WTO panel has appropriately urged caution in the application of this approach, noting that “[a]ttributing international legal significance to

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about negotiation via practice.810 The effective obliteration of the consistent practice requirement advocated by many scholars is thus conceptually flawed.811 As Wolfke has acerbically observed, “repeated verbal acts are also acts of conduct . . . but only to customs of making such declarations . . . and not to customs of the conduct described in the content of the verbal acts.”812 The claim that there is today a customary international legal duty pursuant to which all refugees, whether in a state party or not, are entitled to protection against refoulement is thus not sound.813 While there is growing evidence of opinio juris, it remains far from conclusive and is not, in any event, matched by concordant and generalized state practice as customary lawmaking requires.

4.1.6.3 Other Duties of Non-refoulement While beyond the scope of this book, the discussion above has noted814 that evolution in treaties outside international refugee law provides important support to the Refugee Convention’s duty of non-refoulement as a means of facilitating entry of at least those at-risk persons able to exit their own state.815 Art. 3(1) of the United Nations Convention against Torture, for example, explicitly prohibits the return of a person to another state where there are substantial grounds to perceive a risk of subjection to torture;816 Art. 16(1) of

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unilateral statements made by a State should not be done lightly and should be subject to strict conditions”: WTO Panel Report, United States – Sections 301–310 of the Trade Act of 1974, Dec. No. WT/DS152/R (WTO Panel, Jan. 27, 2000), at [7.118]. “The misunderstanding resulting from such a broad interpretation [of state practice] arises from the fact that it neglects the very essence of every kind of custom, which for centuries has been based upon material deeds and not words”: Wolfke, Custom, at 41–42. “The strategic advantage of elevating customary international law to a rule of recognition is that it allows the theorist to redefine the requirements of customary international law from empirical law to a preferred process while retaining its formal authority”: Kelly, “Twilight,” at 494. Wolfke, Custom, at 42. The fact that an increasing number of states guarantee non-refoulement of some kind in their domestic laws may at some point give rise to at least a lowest common denominator claim based on a new general principle of law: see Lauterpacht and Bethlehem, “Nonrefoulement,” at Annex 2.2, indicating that at the time of writing some 125 states had incorporated some aspect of a duty of non-refoulement in their domestic law. See text at notes 681–686. See Lauterpacht and Bethlehem, “Non-refoulement,” at [5]–[9], [220]–[253]. See generally Chetail, International Migration Law, at 194–199. “The Committee recalls that the prohibition of torture, as defined in Article 1 of the Convention, is absolute”: UN Committee Against Torture, “General Comment No. 4: Implementation of Article 3 of the Convention in the Context of Article 22,” UN Doc. CAT/C/GC/4, adopted Sept. 4, 2018, at [8]. As regards a risk of “cruel, inhuman or degrading treatment or punishment (ill-treatment), which do not amount to torture as defined in Article 1 of the Convention . . . States parties should consider whether other forms of ill-treatment that a person facing deportation is at risk of experiencing could likely change so as to constitute torture before making an assessment on each case relating to the principle of non-refoulement”: ibid. at [15]–[16]. UNHCR has taken the view that

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the Convention on Enforced Disappearance does the same for those who face the risk of being “disappeared,”817 and the Convention on the Rights of the Child may be understood to prohibit the removal of a child in circumstances where that is not in the child’s best interests.818 Arts. 6 and 7 of the International Covenant on Civil and Political Rights, which respectively require state parties to avert the arbitrary deprivation of life and to ensure that nobody is subject to cruel, inhuman or degrading treatment or punishment, have similarly been interpreted by the Human Rights Committee819 to prohibit removal of individuals from a state’s territory to face a relevant risk: [T]he article 2 obligation requiring that States Parties respect and ensure the Covenant rights for all persons in their territory and all persons under their control entails an obligation not to extradite, deport, expel or otherwise remove a person from their territory, where there are substantial grounds for believing that there is a real risk of irreparable harm, such as that contemplated by articles 6 and 7 of the Covenant, either in the country to which removal is to be effected or in any country to which the person may subsequently be removed. The relevant judicial and administrative authorities should be made aware of the need to ensure compliance with the Covenant obligations in such matters.820

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the Torture Convention’s duty of non-refoulement “is in the process of becoming customary international law, at the very least at regional level”: UNHCR, “Advisory Opinion on the Extraterritorial Application of Non-refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol,” Jan. 26, 2007, at [21]. “No State Party shall expel, return (‘refouler’), surrender or extradite a person to another State where there are substantial grounds for believing that he or she would be in danger of being subjected to enforced disappearance. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations, including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights or of serious violations of international humanitarian law”: International Convention for the Protection of All Persons against Enforced Disappearance, 2716 UNTS 3 (UNTS 48088), adopted Dec. 20, 2006, entered into force Dec. 23, 2010, at Art. 16(1). See generally M. Vermeulen, Enforced Disappearance: Determining State Responsibility under the International Convention for the Protection of All Persons from Enforced Disappearance (2012). Drawing on the self-executing nature of Art. 3(1) of the Convention on the Rights of the Child, 1577 UNTS 3 (UNTS 27531), entered into force Sept. 2, 1990, “[t]he relevant inquiry in these cases is whether the removal of the child is in the child’s best interests. If removal is contrary to those interests, there will be a strong presumption against removing the child, subject only to a tightly circumscribed range of considerations that may in certain circumstances override the child’s best interests”: J. Pobjoy, “Best Interests,” at 333; see generally Pobjoy, Child in Refugee Law, at chapter 6. “Even though treaty bodies have remained surprisingly evasive about the exact basis of their praetorian construction, this implicit duty of non-refoulement is anchored in the theory of positive obligations”: Chetail, International Migration Law, at 196. UN Human Rights Committee, “General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant” (2004), UN Doc. HRI/GEN/ 1/Rev.7, May 12, 2004, at [12]. With respect to Art. 6, “the right to life requires State Parties

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Indeed, the Committee has recently opined that environmental degradation may in some circumstances engage risks under Arts. 6 and 7, thus mandating protection against refoulement.821 In addition to a clear duty not to return anyone to face grave risks to their physical security, there is nascent support for the view that state parties to the European Convention on Human Rights and Fundamental Freedoms will not be allowed to remove persons who face the risk of a particularly serious violation of a fairly wide range of human rights.822 Beyond norms of non-

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to refrain from deporting, extraditing or otherwise transferring individuals to countries in which there are substantial grounds for believing that a real risk exists that they would be deprived of their life in violation of article 6”: UN Human Rights Committee, “General Comment No. 36 on article 6 of the International Covenant on Civil and Political Rights, on the right to life,” Revised draft prepared by the Rapporteur, UN Doc. CCPR/C/GC/ R.36/Rev.5, July 26, 2016, at [34]. A concurring opinion in the UN Human Rights Committee suggests that some caution is warranted before interpreting other obligations to contain an implied duty of non-refoulement: X v. Denmark, HRC Comm. No. 2007/ 2010, UN Doc. CCPR/C/110/D/2007/2010, decided Mar. 26, 2014, per G. Neuman (noting “the fallacy of the abstract argument that a State’s duty not to violate a right always entails an obligation not to send an individual to a second State where there is a real risk that the second State will violate the right. The Committee’s general comment No. 31 speaks of ‘irreparable harm . . . ’ as the kind of injury that is severe enough to justify a nonrefoulement obligation. Some violations of the Covenant have only financial consequences and are easily reparable; but beyond that, the language of the general comment suggests that it is referring to irreparability in a deeper sense”). Some caution about the scope of these duties is, however, suggested by the determination of the High Court of Australia that there is a “high hurdle” to benefit from the implied duty of non-refoulement under Arts. 6 and 7 of the Civil and Political Covenant, including in particular a duty to avoid that risk by “reasonable relocation within the applicant’s country of nationality”: CR1026 v. Republic of Nauru, [2018] HCA 19 (Aus. HC, May 16, 2018), at [24]. “The obligation not to extradite, deport or otherwise transfer pursuant to article 6 of the Covenant may be broader than the scope of the principle of non-refoulement under international refugee law, since it may also require the protection of aliens not entitled to refugee status . . . The Committee also observes that it, in addition to regional human rights tribunals, ha[s] established that environmental degradation can compromise effective enjoyment of the right to life, and that severe environmental degradation can adversely affect an individual’s well-being and lead to a violation of the right to life . . . The Committee is of the view that without robust national and international efforts, the effects of climate change in receiving states may expose individuals to a violation of their rights under articles 6 or 7 of the Covenant, thereby triggering the non-refoulement obligations of sending states. Furthermore, given that the risk of an entire country becoming submerged under water is such an extreme risk, the conditions of life in such a country may become incompatible with the right to life with dignity before the risk is realized”: Ioane Teitiota v. New Zealand, HRC Comm. No. 2728/2016, UN Doc. CCPR/C/127/D/2728/2016, decided Oct. 24, 2019, at [9.3], [9.5], [9.11]. See Costello and Foster, “Custom and Jus Cogens,” at 284–285. In a very thoughtful analysis, Greenman argues that “there will and must be some limits on the scope of the principle of non-refoulement,” positing that a choice will have to be made between retaining the principle’s absolute status but constraining its scope to acts that engage state responsibility or defining it broadly but allowing resource constraints to be taken into

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return derived from human rights law, there is tentative judicial authority for the view that international humanitarian law should be construed to preclude the forcible repatriation of non-combatants who have fled generalized violence or other threats to their security arising out of armed conflict in their state of nationality.823 For at least some refugees in non-party states, the inability to invoke Art. 33 of the Refugee Convention is thus effectively remedied by the ability to invoke other standards of international law.824 These additional duties of non-refoulement are also relevant for at least some refugees in state parties since where a state is bound by a duty of non-return external to the Refugee Convention, the state concerned may not invoke the flexibility afforded by Art. 33 in order to counter its other legal responsibilities.825

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account: Greenman, “Castle Built on Sand?,” at 294. The European Court of Human Rights has carefully summarized its approach to non-refoulement duties in JK v. Sweden, Dec. No. 59166/12 (ECtHR, Aug. 23, 2016), at [77]–[105]. See e.g. Orelien v. Canada, [1992] 1 FC 592 (Can. FCA, Nov. 22, 1991); and In re Santos, Dec. No. A29-564-781 (US IC, Aug. 24, 1990). These decisions related to Common Article 3 of the Geneva Conventions, textually restricted to persons in flight from noninternational conflict. It has, however, been argued that the broadly applicable obligation in Common Article 1 to “respect and to ensure respect” for the Conventions “in all circumstances” should be read to include Common Article 3 as a “minimum yardstick,” with the result that non-combatants from either internal or international conflict are similarly entitled to protection against refoulement from non-belligerent states: Ziegler, “ ‘Common Article 1’ and ‘Common Article 3.’” For example, since “EU law provides more extensive international protection,” it follows in some cases that “the member state concerned may not derogate from the principle of non-refoulement [by invoking] article 33(2) of the Geneva Convention”: M v. Czech Republic, X and X v. Belgium, Dec. Nos. C-391/16, C-77/17, and C-78/17 (CJEU, May 14, 2019), at [95]–[96]. See generally Chetail, “Are Refugee Rights Human Rights?,” at 36– 37 (outlining ways in which human rights law may provide non-refoulement protections that go beyond those of refugee law). The genesis of this understanding is Chahal v. United Kingdom, (1996) 23 EHRR 413 (ECtHR, Nov. 15, 1996), in which the Court rejected the state party’s argument that account should be taken of considerations of international security of the kind recognized as valid constraints on refoulement under Art. 33 of the Refugee Convention in order to determine obligations under Art. 3 of the European Convention. Much the same approach was taken by the Supreme Court of Canada in Suresh v. Canada, [2002] 1 SCR 3 (Can. SC, Jan. 11, 2002): “In our view, the prohibition in the Civil and Political Covenant and the [Convention Against Torture] on returning a refugee to face the risk of torture reflects the prevailing international norm. Article 33 of the Refugee Convention protects, in a limited way, refugees from threats to life and freedom from all sources. By contrast, the CAT protects everyone, without derogation, from state-sponsored torture. Moreover, the Refugee Convention itself expresses a ‘profound concern for refugees’ and its principal purpose is to ‘assure refugees the widest possible exercise of . . . fundamental rights and freedoms.’ This negates the suggestion that the provisions of the Refugee Convention should be used to deny rights that other legal instruments make universally available to everyone.” The UN Human Rights Committee has moreover found even the minimal discretion to remove a person at risk of torture identified by the Supreme Court of Canada

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In sum, most threats to the ability of refugees to enter and remain in an asylum state are in fact answered by a good faith interpretation of the Refugee Convention’s prohibition of refoulement. There are, however, three significant gaps in the protective ambit of Art. 33. First and most fundamentally, the duty of non-refoulement does not constrain policies such as visa controls implemented in countries of origin, or interstate agreements to deter migration. Until and unless refugees actually leave their own state, they are not legally entitled to protection against refoulement, or to any other refugee rights. Second, individuals who are refugees, but who pose a risk to the national security of the state of reception, or who are particularly serious criminals who endanger its community, cannot claim protection against refoulement by virtue of the express exceptions set by Art. 33(2). Third, the duty of non-refoulement can be trumped by a claim of necessity in the case of a state faced with a mass influx of refugees insofar as the arrival of refugees truly threatens its ability to protect its most basic national interests. The last of these gaps could be answered by more effective international burden and responsibility sharing arrangements. The second concern might similarly be remedied by a combination of responsibility sharing to relocate refugees to states in which they do not constitute a security risk, and burden sharing to finance the cost of allowing criminal refugees the option of incarceration or other appropriate custodial arrangements as an alternative to refoulement. The first dilemma is, however, the most challenging – though reliance on the right of “everyone to leave any country” set by Art. 12(2) of the Civil and Political Covenant certainly has real potential value.826 But with the

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in Suresh to be viable under Canadian domestic law to be of doubtful legality. “The Committee does however refer, in conclusion, to the Supreme Court’s holding in Suresh that deportation of an individual where a substantial risk of torture had been found to exist was not necessarily precluded in all circumstances. While it has neither been determined by the State party’s domestic courts nor by the Committee that a substantial risk of torture did exist in the author’s case, the Committee expresses no further view on this issue other than to note that the prohibition on torture, including as expressed in article 7 of the Covenant, is an absolute one that is not subject to countervailing considerations”: Ahani v. Canada, HRC Comm. No. 1051/2002, UN Doc. CCPR/C/80/D/1051/2002, decided Mar. 29, 2004, at [10.10]. See generally Kälin, “Article 33, para. 1,” at 1346–1357; and Zimmermann and Wennholz, “Article 1 F,” at 1407–1412. “Refugees, like all persons, are free to leave any country pursuant to Art. 12(2) of the ICCPR. In accordance with Art. 12(3), the freedom to depart may be subjected only to limitations provided by law, implemented consistently with other ICCPR rights, and shown to be necessary to safeguard a state’s national security, public order (ordre public), public health or morals, or the rights and freedoms of others. A limitation is only necessary if shown to be the least intrusive means to safeguard the protected interest. So long as an individual seeking to leave a state’s territory does so freely, meaning that he or she has made an autonomous decision to do so, the state of departure may not lawfully restrict the right to leave on the basis of concerns about risk to the individual’s life or safety during the

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dissipation of the political and economic concerns that once sustained the commitment to refugee protection, we can unfortunately expect to see an exacerbation of the tendency to endorse visa controls, carrier sanctions, and migration control agreements as exclusionary mechanisms. As a practical matter, only a fundamental recasting of the objectives and modalities of refugee protection has any realistic chance of persuading states to relinquish their tools of refugee deterrence.827

4.2 Freedom from Arbitrary Detention and Penalization for Illegal Entry The ability simply to enter and remain in an asylum state is cold comfort for many refugees. As UNHCR observes, “it frequently occurs that the necessary distinction is not made either in law or in administrative practice between asylum-seekers and ordinary aliens seeking to enter the territory. The absence of such a distinction may, and in many cases does, lead to asylum-seekers being punished and detained for illegal entry in the same manner as illegal aliens.”828 In some cases, there simply has been no effort to enact specific protections for refugees. For example, under the Thai Immigration Act refugees without valid passports and visas are not distinguished from other illegal immigrants and are therefore subject to arrest, detention, and deportation absent an exercise of ministerial discretion.829 Similarly, Libya has long resisted calls to reform its system of mandatory detention for migrants and refugees alike;830 its reliance on arbitrary and indefinite detention831 is exacerbated by agreements

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process of leaving or traveling”: “The Michigan Guidelines on Refugee Freedom of Movement,” (2017) 39 Michigan Journal of International Law 1, at [4]–[6]. See J. Hathaway and A. Neve, “Making International Refugee Law Relevant Again: A Proposal for Collectivized and Solution-Oriented Protection,” (1997) 10 Harvard Human Rights Journal 115; and J. Hathaway ed., Reconceiving International Refugee Law (1997). UNHCR, “Note on Accession to International Instruments and the Detention of Refugees and Asylum Seekers,” UN Doc. EC/SCP/44, Aug. 19, 1986 (UNHCR, “Detention Note”), at [33]. “The Thai Immigration Act of 1979 (B.E. 2522) makes no exception for refugees when it says anyone who enters Thailand without authorization ‘shall be punished by an imprisonment not exceeding two years and a fine not exceeding 20,000 Baht [about US$600]’ (section 62), and that any foreigner who ‘stays in the Kingdom without permission or with permission expired or revoked shall be punished with imprisonment not exceeding two years or a fine not exceeding 20,000 Baht or both’ (section 81)”: Human Rights Watch, “Ad Hoc and Inadequate: Thailand’s Treatment of Refugees and Asylum Seekers,” Sept. 12, 2012, at 99. Human Rights Watch, “Libya: Carry Out UN Calls for Reform,” Nov. 17, 2010. UN Support Mission in Libya and UN Human Rights Office of the High Commissioner, “‘Detained and Dehumanized’: Report on Human Rights Abuses against Migrants in Libya,” Dec. 13, 2016, at 11–13. Indeed, several detention centers are controlled by nonstate armed groups: United Nations Support Mission in Libya, “Desperate and Dangerous:

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with third countries to receive those intercepted after transiting through its territory.832 Malaysia detains Rohingya and other refugees entering without documentation and restricts NGO access to detention sites.833 The UNHCR intervened in 2001 when Malawi threatened to deny protection to refugees from the Democratic Republic of Congo on the grounds that they did not have the required documentation to enter the country.834 Lebanon treats Syrians not registered with UNHCR as illegally present, yet simultaneously directs the agency to refrain from registering them as refugees.835 In Kenya, even refugees who were issued UNHCR documentation have been arrested and detained unless able to pay a bribe to officials.836 Even in states with refugee-specific legislation, the laws may not clearly preempt inconsistent immigration laws. Thus, many arriving refugees are in practice subject to the same penalties for illegal entry as other aliens in Bulgaria837 and in

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Report on the Human Rights Situation of Migrants and Refugees in Libya” (Dec. 20, 2018), at 38–39. See e.g. D. Nakache and J. Losier, “The European Union Immigration Agreement with Libya: Out of Sight, Out of Mind?” E-International Relations, July 25, 2017. L. Barron, “Refugees Describe Death and Despair in Malaysian Detention Centres,” Guardian, May 15, 2017; Asia Pacific Refugee Rights Network, “Malaysia,” Mar. 2017. “[T]he UNHCR chief in Malawi, Michael Owor, accused the government of flouting international conventions on refugees . . . ‘Refugees don’t need papers. What sort of papers do they want?,’ he said”: SAPA-SFP (Blantyre), Apr. 17, 2001. Despite a recently relaxed residence policy for recognized refugees, the reforms “exclude[] an estimated 500,000 Syrians not registered with UNHCR . . . even though the government directed UNHCR to stop registering Syrians as refugees in May 2015. It also excludes anyone who has used a Lebanese sponsor to maintain legal residency, even though General Security officers have required many Syrians to secure sponsors – in contravention of Lebanese policies”: B. Khawaja, “The Gaps in Lebanon’s New Refugee Policy,” Mar. 14, 2017. The Lebanese government recently noted that while “[t]he UN characterizes the flight of civilians from Syria as a refugee movement, and considers that these Syrians are seeking international protection and are likely to meet the refugee definition,” it would persist in referring to refugees fleeing Syria into Lebanon after March 2011 simply as “temporarily displaced individuals”: Lebanon, “Lebanon Crisis Response Plan” (2019), at 4. According to Human Rights Watch, “security forces have routinely confiscated or destroyed documentation, and frequently extorted large sums of money in exchange for release. Residents of Eastleigh . . . paid between KES500 to 5,000 (US$5.88 to $8.80) to avoid being detained, or up to KES40,000 ($470) to secure their release. Police have confiscated both expired and valid UN refugee documents, and in some cases have torn them up. Some refugees moved from Nairobi to the remote refugee camps as the only way to avoid paying bribes to stay out of detention”: Human Rights Watch, “Kenya: End Abusive Round-Ups,” May 12, 2014. “In practice, detention of third-country nationals is ordered by the border or immigration police on account of their unauthorised entry, irregular residence or lack of valid identity documents. After the amendments of the [Law amending the Law on Aliens in the Republic of Bulgaria] in the end of 2016, these authorities can initially order a detention of 30 calendar days within which period the immigration police should decide on following detention grounds and period or on referral of the individual to an open reception

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South Africa.838 Russian police have rounded up and detained asylum-seekers – including those with valid documents – as part of general operations to catch illegal immigrants.839 Refugees arriving at or traveling through the United Kingdom are subject to criminal penalties for producing invalid travel documents or arriving without passports. Despite the enactment of an amendment recognizing a defense specifically for refugees, many continued to be convicted of the offense.840 Danish law authorizes the prosecution of refugee claimants who seek protection there in reliance on false identity documents, but only once they are determined not to be refugees.841 Argentina, in contrast, provides for the suspension of any criminal proceedings pending the outcome of refugee status assessment.842 Though short of criminal prosecution, US law provides for the summary

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centre, if he or she has applied for asylum”: Asylum Information Database, “Country Report: Bulgaria” (2016), at 53. C. Costello, “Article 31 of the 1951 Convention Relating to the Status of Refugees,” July 2017, at 56–57 (Costello, “Article 31”). “At the end of July, Moscow police opened a massive campaign in Russia’s capital against irregular migrants, sweeping through street markets and other places where many migrants gather, and detaining people based on their non-Slavic appearance. According to media reports, over 4,000 people have been taken into custody, including nationals of Vietnam, Syria, Afghanistan, Egypt, Morocco, Kyrgyzstan, Uzbekistan, and Tajikistan . . . Migrants detained during police raids typically have had no access to legal counsel or translators. They have not been able to inform family members of their fate and whereabouts, and were not allowed to pack any belongings or retrieve documents they were not carrying at the time they were detained. Some who are awaiting deportation are asylum seekers or have lawful residence permits, and thus have a legal right to be in Russia”: Human Rights Watch, “Russia: Mass Detention of Migrants,” Aug. 8, 2013. Despite the enactment of s. 31 of the 1999 Immigration and Asylum Appeals Act as a defense to both crimes of arriving without travel documents and producing invalid documents, a 2012 report found that the “relevant prosecution offices that service airports, ports and immigration offices may have been prosecuting offences of this kind without any regard to Article 31, Refugee Convention or the defences in domestic legislation for several years. Defence lawyers appear to have advised asylum seekers/refugees in these cases to plead guilty when there were potential defences available to them”: Criminal Cases Review Commission, “Annual Report and Accounts 2011/12,” July 2012, at 15–16. According to one estimate, there were about fifty cases of wrongful convictions of refugees over a ten-year period in two courts alone: A. Aliverti, “Prosecuting Refugees: Wrongful Convictions, Unlawful Practices,” Border Criminologies Blog, Mar. 20, 2017. Guidelines issued by the Danish Director of Public Prosecutions instruct that asylumseekers be exempted from prosecution pending assessment of the claim. In addition, “[i]f a falsified passport is presented, the authorities do not require the asylum seeker to confess that the passport is falsified simultaneously while handing it over . . . Only asylum seekers who are determined to be convention refugees are exempted from penalisation. Those who are granted a subsidiary form of protection are not”: M. Linha and A. Møkkelgjerd, “Analysis of Norway’s International Obligations, Domestic Law and Practice: Detention of Asylum Seekers” (2014), at 69. Ley general de reconocimiento y protección al refugiado, Law No. 26.165, at Art. 40 (Nov. 8, 2006).

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removal of persons arriving without proper immigration documentation.843 While refugee claimants are given a hearing to determine whether they have a “credible fear” of persecution in their country of origin844 and may appeal negative assessments,845 they are often encouraged by immigration judges to withdraw their asylum claims in exchange for a grant of bare-bones withholding of removal.846 The US also bars persons previously removed from that country from applying for asylum; such refugees may only seek withholding of removal, which does not entitle its beneficiaries to receive full Convention rights.847 Some countries consider time spent in an intermediate country to negate entitlement to refugee protection. Canada denies refugee status if there is an absence of “subjective fear,” which it understands to require demonstration of urgency on the part of the refugee that is often said not to be shown by those arriving indirectly.848 While applicants are generally afforded the opportunity to explain the failure to apply for asylum in an intermediate state, “the underlying presumption remains that only a particularly persuasive explanation can rebut the usual inference that delay is indicative of a lack of subjective fear.”849 A variant of the principle is implicit in US law, which denies asylum to 843

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Immigration and Nationality Act, 8 USCA § 1225(b)(1)(A)(i). More recently, the United States has taken steps to expand the use of expedited removal: “Border security and immigration enforcement improvements,” US Executive Order 13767, Jan. 25, 2017. In issuing preliminary guidance on the implementation of the order, Department of Homeland Security Secretary John Kelly noted the “surge of illegal immigration at the southern border has overwhelmed federal agencies and resources and has created a significant national security vulnerability to the United States. Thousands of aliens apprehended at the border, placed in removal proceedings, and released from custody have absconded and failed to appear at their removal hearings.” In addressing the numerous cases pending review before immigration judges, Kelly further noted that “[t]his unacceptable delay affords removable aliens with no plausible claim for relief to remain unlawfully in the United States for many years”: Memorandum from J. Kelly, Secretary, US Department of Homeland Security on implementing the president’s border security and immigration enforcement improvements policies, Feb. 20, 2017, at 6–7, regarding implementing “Executive Order: Border Security and Immigration Enforcement Improvements,” Jan. 25, 2017, at s. 7. Immigration and Nationality Act, 8 USCA § 1225(b)(1)(A)(ii), (B). Ibid. § 1225(b)(1)(B)(iii)(II)–(III). As Legomsky aptly notes, “[t]hose kinds of plea-bargaining offers can cause anguish. By accepting the offer, the applicant avoids being returned to his or her persecutors but does not receive permission to remain in the United States or to reunite with his or her spouse or minor children. If the applicant declines the offer, he or she runs the risk of receiving no protection at all and being returned to the country of persecution”: S. Legomsky, “The New Path of Immigration Law: Asymmetric Incorporation of Criminal Justice Norms,” (2007) 64 Washington and Lee Law Review 469, at 495. Immigration and Nationality Act, 8 USCA § 1231(a)(5). See Maria del Pilar Bravo v. Minister of Citizenship and Immigration, [2014] FC 1099 (Can. FC, Nov. 20, 2014), at [18]–[19]; Erkan Karakaya v. Canada, [2014] FC 777 (Can. FC, Aug. 5, 2014), at [17]. Hathaway and Foster, Refugee Status, at 98.

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persons it deems to have been “firmly resettled” in another asylum state even if there is no reason to believe that the refugee can, in fact, return there.850 Refugees may also confront deadlines for the receipt of an application for protection as a refugee. Immediately after acceding to the Refugee Convention in 2000, for example, Mexico passed regulations under which it generally refuses to consider claims lodged more than fifteen days after the refugee’s arrival in the country.851 Spain implemented a similar regime, requiring refugees to seek protection within one month of arrival or of the occurrence of the events giving rise to the request.852 Turkey and Ecuador imposed a fiveday filing deadline (subsequently extended to a ten-day and a fifteen-day deadline respectively), though these rules were ultimately struck down by courts.853 Even without such rigid rules, much the same result can follow from administrative practice that penalizes refugees who “delay” in making 850

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“An applicant’s loss of the right to return to a country in which he or she was firmly resettled after becoming a refugee does not necessarily remove the firm resettlement bar”: US Citizenship and Immigration Services, “Refugee, Asylum, and International Operations Directorate – Officer Training: Firm Resettlement” (May 23, 2013), at 15. Courts have applied this bar to refugees notwithstanding the expiration of travel documents and residence permits issued by the countries in which they were found to be “firmly” resettled: see e.g. Maharaj v. Gonzales, 450 F. 3d 961 (US CA9, 2006), at 969. More recently, the US Board of Immigration Appeals has taken the position that even a fraudulently obtained residence permit may be considered prima facie evidence that the applicant was firmly resettled: Matter of D-X- & Y-Z-, 25 I&N Dec. 664 (US BIA, 2012), at 667. Noting the lack of clarity as to whether the permits were facially fraudulent (in addition to being fraudulently obtained), the Board nonetheless regarded the permits as “facially valid. Even if the respondents used some form of fraud or bribery through a middleman to obtain them, there has been no showing that they were not issued by the Belize Government”: ibid. at 666. Under Art. 18 of the Law on Refugees, Complementary Protection and Political Asylum (2011), the deadline was subsequently extended to thirty working days. Notwithstanding the extension, “[t]his is an absurdly unrealistic deadline for most migrants, especially families filing more than one application and anyone learning about this option once they arrive at the northern border (since the journey from the southern border usually takes longer than a month, sometimes as long as a year or two). . . Moreover, eligible asylum seekers at the northern border find themselves far from COMAR offices, are evaluated through phone rather than in-person interviews, and must remain in the location where they submitted their application for months while their case is pending”: Kino Border Initiative, “Asylum Seekers in Mexico,” Sept. 12, 2017. Human Rights First further reports that “[w]hile awaiting a decision, [applicants] cannot travel or work and must report weekly to local authorities. There is currently no mechanism to appeal a negative asylum decision issued by COMAR, meaning that those who are incorrectly denied asylum will be blocked from protection”: B. Drake et al., “Crossing the Line: US Border Agents Illegally Reject Asylum Seekers,” May 2017, at 19. Ley No 12/2009, Reguladora del Derecho de Asilo y de la Protección Subsidiaria (2009), Art. 17(2). K. Kirisci, “UNHCR and Turkey: Nudging towards a Better Implementation of the 1951 Convention on the Status of Refugees” (2001), at 11–12; Asylum Access, Press Release, “Ecuador Advances the Protection of Refugees,” Sept. 15, 2014.

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their claim. Finland, for example, declined to exempt an arriving refugee from penalization for use of a forged passport because the individual had waited one day before filing an asylum claim.854 By far the most common consequence of a refugee’s unauthorized arrival in an asylum country is that he or she will be detained or otherwise denied internal freedom of movement.855 In January 2001, India began detaining refugees coming from Sri Lanka in order to deter further arrivals.856 Tajikistan prohibits refugees from residing in urban areas including the capital, allowing them to settle only in rural areas.857 Despite its High Court’s invalidation of a similar relocation plan the year before, in 2014 Kenya forcibly removed refugees from their urban dwellings to remote refugee camps,858 departure from which requires special permission.859 Refugees released from Indonesian camps are assigned to residential areas; strict geographic restrictions impede the ability to travel and to access ports of entry.860 The detention of refugees is often the result of the application of general laws which permit detention of any unauthorized migrant. Japan, for example, 854

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Finland invoked its Aliens Act (378/91), Art. 64b. See UNHCR, “Comments by the UNHCR Regional Representation for the Baltic and Nordic Countries on the Finnish Ministry of Justice’s proposal for amendments to the Criminal Code’s provision on Arrangement of Illegal Immigration,” Mar. 28, 2013, at [16]; see also Costello, “Article 31,” at 29. “Although State Members of the Executive Committee adopted [Conclusion No. 44 (XXXVII)] by consensus, the recommendations contained therein appear to have had very little impact on the practice of a number of states as regards detention of refugees and asylum-seekers. On the contrary, detention under harsh conditions, for long periods and without justifiable cause has recently increased”: UNHCR, “Note on International Protection,” UN Doc. A/AC.96/713, Aug. 15, 1988, at [21]. See also UNHCR, “Press briefing notes of Mr. Adrian Edwards,” Sept. 21, 2012: “We are disappointed that many countries continue to hold asylum-seekers in detention, sometimes for long periods and in poor conditions, including in some cases in prisons together with common criminals. UNHCR is particularly concerned that detention is in growing use in a number of countries. Our research shows that irregular migration is not deterred even by stringent detention practises, and that practical alternatives to detention do exist. In addition, there are well-known negative and at times serious physical and psychological consequences for asylum-seekers in detention.” “In another attempt to deter refugees coming from the island’s war zones in the north, the Indian government is detaining new arrivals in an area in the transit camp, which has been converted into a mini-jail. Conditions are appalling, as men, women and children are holed up in this overcrowded space”: (2001) 85 JRS Dispatches (Jan. 17. 2001). Resolution No. 325, “On the list of Tajik settlements prohibited for temporary residence of asylum-seekers and refugees,” July 26, 2000. See also US Department of State, “Tajikistan 2016 Human Rights Report,” at 16. Human Rights Watch, “Kenya: End Abusive Round-Ups,” May 12, 2014; Human Rights Watch, “Kenya: Halt Crackdown on Somalis,” Apr. 11, 2014. Human Rights Watch, “Kenya: Police Abuse Somali Refugees,” June 17, 2010. Human Rights Watch, “Barely Surviving: Detention, Abuse, and Neglect of Migrant Children in Indonesia,” June 2013, at 68–70.

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provides for the discretionary (and possibly indefinite)861 detention of persons subject to deportation on a broad range of grounds.862 Under Hungarian law, commission of the offense of unauthorized entry may result in imprisonment of up to three years.863 Since 2012, Israel has enacted several measures for the prolonged detention of African refugees, labeled “infiltrators.”864 Originally authorized for three years, the law now allows detention at a former military base in the Negev desert for up to twelve months.865 Indonesia authorizes the detention of asylum-seekers for up to ten years without judicial review.866 Under Australian law, refugees are subject to general rules providing for the 861

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D. Kikuchi, “Backers of Immigration Detainees Blast Prolonged Stays as Violation of Human Rights,” Japan Times, May 25, 2017, quoting Lawyers Network for Foreign Workers representative Shoichi Ibusuki as “explaining that when the immigration bureau issues an exclusion order, it still has the right to detain a person indefinitely – theoretically for 100 years.” Immigration Control and Refugee Recognition Act, Arts. 39(1), 24. Grounds for deportation (and therefore detention) include, inter alia, lack of possession of a valid passport, entry into Japan “without obtaining permission for landing from an immigration inspector,” and the forging or alteration of a travel document or use thereof to secure entry: Art. 24(i)–(iii). Amnesty International, “Fenced Out: Hungary’s Violations of the Rights of Refugees and Migrants,” Oct. 2015, at 20. Longer sentences may be imposed depending on extenuating circumstances: “If committed armed, or with the use of weapons, or while part of a riot . . . the sentence will range between 1–5 years; the sentence ranges from 2–8 years if committed armed, with the use of weapons and as part of a riot. If the act results in a death the sentence ranges between 2–10 years”: Hungarian Helsinki Committee, “The Hungarian Helsinki Committee’s opinion on the government’s amendments to criminal law related to the sealed border,” Sept. 16, 2015, at 3. Law for the Prevention of Infiltration (Crimes and Jurisdiction) (Amendment No 3 and Temporary Order) 5772-2012 (Amendment No 3); Law for the Prevention of Infiltration (Crimes and Jurisdiction) (Amendment No 4 and Temporary Order) 5774-2013 (Amendment No 4); and Law for the Prevention of Infiltration and Securing the Departure of Infiltrators from Israel (Legislative Amendments and Temporary Orders) 5775-2014 (Amendment No 5). For further details on these measures and their challenges in the Israeli High Court, see R. Ziegler, “No Asylum for ‘Infiltrators’: The Legal Predicament of Eritrean and Sudanese Nationals in Israel,” (2015) 29(2) Journal of Immigration, Asylum and Nationality Law 172 (Ziegler, “No Asylum for ‘Infiltrators’”), 184–188. See R. Ziegler, Case Comment, (2015) 27(4) International Journal of Refugee Law 675, 678–679. “Under the Immigration Law (2011, Article 85), irregular migrants must be detained until they are deported, or if this cannot be implemented, detention is limited to a maximum of 10 years. There is no provision for immigration detainees to challenge their incarceration. Most detained asylum seekers are held until their refugee status determination has been completed, a process that can take a year or longer. In fact, even UNHCR-determined refugees are routinely detained, with Indonesian authorities refusing to secure their release”: A. Nethery and S. Silverman eds., Immigration Detention: The Migration of a Policy and its Human Impact (2015).

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indefinite detention of non-citizens arriving without authorization.867 Although discretionary release via a bridging visa is possible for those found to pose no risk pending the determination of their claim,868 recipients of such visas are often refused permission to work and other rights.869 The routine resort to the detention of persons seeking refugee status is officially justified in order “to ensure that they do not enter the Australian community until their claims to do so have been properly assessed and found to justify entry.”870 Others, however, suggest that the real motive is to deter refugees and others from traveling to Australia.871 867

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“According to the Migration Act, Division 7, [Section] 189 an officer must detain a person in the ‘migration zone’ if the officer knows or reasonably suspects that the person is an ‘unlawful non-citizen’ . . . Detention is also mandated for a person who is unable to supply proper documentation or tries to avoid showing proper documentation that they are a lawful non-citizen . . . Under the law, the period of detention is indeterminate”: F. Motta, “‘Between a Rock and a Hard Place’: Australia’s Mandatory Detention of Asylum Seekers,” (2002) 20(3) Refuge 12, at 16. “The visa has existed in a number of forms since its introduction, with asylum seekers entitled to different work and healthcare rights. At present, those who arrived before 13 August 2012 have work and Medicare rights. Those who arrived after 13 August 2012 only have Medicare rights. While on a BVE, asylum seekers are provided with casework and accommodation assistance during the first six weeks, and income is provided at 89% of Centrelink payments. After six weeks, the need for ongoing assistance is assessed and assistance can be provided under a number of schemes if the asylum seeker has serious physical or mental health issues, is elderly and unable to support themselves or has serious family issues. For those who are accepted as needing ongoing support, pharmaceuticals are further subsidised and ongoing casework is provided”: R. Essex, “Asylum Seeker Health and Bridging Visas: History Repeating,” (2013) 37(6) Australian and New Zealand Journal of Public Health 506. B. Doherty and A. Karim Hekmat, “‘We are the Forgotten People’: The Anguish of Australia’s ‘Invisible’ Asylum Seekers,” Guardian, Apr. 12, 2016. “Response of the Australian Government to the Views of the [UN Human Rights] Committee in Communication No. 560/1993, A v. Australia,” June 25, 1998, at [5]. The Immigration Minister stated that he was committed to a policy of detaining persons seeking refugee status “because no-one had invented an alternative monitoring system that worked . . . ‘From our point of view, our system ensures that people are available for processing and removal if required,’ he said”: Canberra Times, Jan. 26, 2002, at C-1, quoting Immigration Minister Philip Ruddock. More recently, the Department of Immigration and Border Protection has taken the view that “only orderly, safe and wellmanaged migration policies allow a nation to realise its full positive economic, social and cultural rewards of immigration” and that “strong border security measures, including mandatory detention, ensures the integrity of Australia’s migration programmes”: Department of Immigration and Border Protection, “Statement on UN Special Rapporteur’s visit,” Nov. 18, 2016. Prime Minister Abbott suggested a deterrent motive, observing that “Australia will do absolutely nothing that gives any encouragement to anyone to think that they can get on a boat, that they can work with people smugglers to start a new life. I’m sorry. If you want to start a new life, you come through the front door, not through the back door”: S. Medhora, “‘Nope, Nope, Nope’: Tony Abbott says Australia will take no Rohingya Refugees,” Guardian, May 20, 2015, quoting Prime Minister Tony Abbott. In the context of an

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Other countries’ detention laws may target refugees specifically. Prior to a series of challenges leading to the program’s suspension in 2015, the United Kingdom’s Detained Fast Track system was used to achieve the confinement of large numbers of refugee applicants pending the processing of their claims, including during appeals.872 Even more appalling was Hungary’s criminalization in 2015 of not only entering without authorization, but also of anyone who had damaged or obstructed construction of the fences along its border with Serbia.873 More recently, the provision for automatic and mandatory detention of all asylum-seekers within its borders874 earned Hungary a rebuke from the UNHCR and prompted several EU member states to suspend Dublin transfers to its territory.875 Even in countries where the detention of refugees is in principle more selective, it may in practice be quite routine. For example, refugees arriving in the United States have commonly been detained since the

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unsuccessful bid to ban refugees detained at Nauru and Manus Island from ever traveling to Australia, Prime Minister Turnbull commented that “[t]his will send the strongest possible signal to the people smugglers . . . It is incredibly important that we send the clearest message . . . They must know that the door to Australia is closed to those who seek to come here by boat with a people smuggler. It is closed. Those passengers will never settle in this country”: D. Conifer, “Manus Island, Nauru Refugees to be Banned from Entering Australia, Malcom Turnbull says,” ABC News, Oct. 30, 2016. J. Brokenshire, Written Statement HCWS83, July 2, 2015. “In addition, special, fast-track criminal procedures were introduced (which in themselves raised concern[s] about the fairness of the criminal trials conducted). Under these new provisions, between 2015 and 2016, thousands of asylum-seekers were convicted of criminal offences relating to the border fence. Attempts to rely on Article 31 in these cases apparently failed, including because asylum-seekers were deemed not to have ‘come directly’ to Hungary . . . [T]he new criminal measures were also combined with changes to the asylum legislation to deflect asylum-seekers back to Serbia using a quasi-automatic safe third country rule, in defiance of a clear ruling by the Hungarian Supreme Court, and more recently the ECtHR”: Costello, “Article 31,” at 59–60. See also Hungarian Helsinki Committee, “The Hungarian Helsinki Committee’s opinion on the government’s admendments to criminal law related to the sealed border,” Sept. 16, 2015. Amendment of certain acts to tighten the procedures conducted on the border (entered into force Mar. 28, 2017). Under the new law, “individuals could be detained anywhere inside Hungarian territory and escorted to Serbia without having an opportunity to present a claim for asylum. All asylum seekers – including families with children and unaccompanied minors over the age of 14 – will be detained in a closed camp along the border while their cases are reviewed”: L. Bayer, “Hungary Approves Mandatory Detention of all Asylum Seekers,” Politico, Mar. 8, 2017. See also “Hungary: Law on automatic detention of all asylum seekers in border transit zones enters into force, despite breaching human rights and EU law,” Hungarian Helsinki Committee, Mar. 28, 2017. “UNHCR deeply concerned by Hungary plans to detain all asylum seekers,” Mar. 7, 2017. See also J. Suder, “Switzerland Court Denies Deportation of Asylum Seeker to Hungary,” Jurist, June 11, 2017; Asylum Information Database, “Denmark: Refugee Appeals Board suspends transfers to Hungary,” May 4, 2017; Asylum Information Database, “Hungary: Dublin transfers suspended by Germany,” Aug. 29, 2017.

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early 1980s.876 Despite provision to release refugees who pass the “credible fear” pre-screening process,877 legislation passed in 2004 mandated doubling of detention bed space878 and the 2010 prioritization of removing “recent entrants of the United States who do not have valid immigration documents”879 means that in practice most refugees are detained pending a final adjudication of their protection claim.880 Though the recast Dublin Regulation provides for pre-removal detention of only those posing a “significant risk of absconding,”881 states implementing this requirement have drawn on overly broad factors in identifying such 876

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While historically refugee claimants were not detained, the practice of the Immigration and Naturalization Service from 1982 has been to detain all asylum-seekers arriving without proper documentation pending status verification: M. Taylor, “The 1996 Immigration Act: The Detention Provisions,” (1997) 74(5) Interpreter Releases 209. This pattern is distinct from the precedent of 1954 to 1982, during which time the government “paroled most asylum seekers into the country while they awaited adjudication of their claims”; in contrast, between 1996 and 2006, “the United States imprisoned 65% of the detained non-citizen population for non-violent criminal offenses”: V. Woodman de Lazo, “The Morton Memo and Asylum Seekers: An Overview of the US Mandatory Detention Policy,” (2013–2014) 48 New England Law Review 775 (Woodman de Lazo, “Morton Memo”), at 783–784. An asylum-seeker who is not “clearly and beyond a doubt entitled to be admitted shall be detained for a [removal] proceeding”: Immigration and Nationality Act, s. 235(b)(2)(A). Undocumented aliens who apply for asylum may be released from detention only “to meet a medical emergency or [when release] is necessary for a legitimate law enforcement activity”: ibid. at s. 235.3(b)(4)(ii). See Intelligence Reform and Terrorism Prevention Act of 2004. “This Act authorized the construction of approximately 40,000 additional detention bed spaces, which doubled the average bed space used at the time. Predictions estimated this construction would increase detention costs by $3.2 million per day”: Woodman de Lazo, “Morton Memo,” at 782–783. More recently, the renewal and extension of contracts with various for-profit prison companies mark continued efforts to expand detention capacity: American Civil Liberties Union, “ACLU Calls on HSAC to Urge Immediate Moratorium on Expansion of Immigration Detention,” Oct. 26, 2016; see also C. Harlan, “Inside the Administration’s $1 Billion Deal to Detain Central American Asylum Seekers,” Washington Post, Aug. 14, 2016. Memorandum from John Morton, Assistant Secretary, ICE, on Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens, June 30, 2010. “Pursuant to the regulations, asylum seekers arriving at the US border without the proper documentation are placed into expedited removal proceedings. During this time, asylum seekers will almost inevitably remain in a US detention facility awaiting a credible fear interview and final adjudication of their claims. The time that asylum seekers spend in detention facilities varies from several months to several years, depending on the merits and procedural intricacies of their claims”: Woodman de Lazo, “Morton Memo,” at 783. European Council Reg. EC 604/2013, June 26, 2013 (Dublin Regulation (recast)), at Art. 28(1). The Regulation defines the concept of “risk of absconding” as “the existence of reasons in an individual case, which are based on objective criteria defined by law, to believe that an applicant or a third-country national or a stateless person who is subject to a transfer procedure may abscond”: Dublin Regulation (recast), at Art. 2(n). The

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persons.882 In particular, Lithuania deemed persons applying for asylum following pre-trial investigation for illegal entry to pose such a risk;883 until its High Administrative Court determined otherwise,884 Austria similarly considered a risk to exist where another EU member state was responsible for the claim’s examination.885 Despite the introduction of reforms to replace automatic detention of unauthorized arrivals in Malta,886 those arriving irregularly by plane continue to be detained in practice.887 In contrast, some states prioritize alternatives to the detention of refugees in jails or prisons. For instance, the United Kingdom permits release upon bail or provision of surety,888 while Canada offers assistance in meeting bail

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Regulation prevents States from detaining applicants solely on the basis of their subjection to a Dublin procedure: Dublin Regulation (recast), at Art. 28(1). A comparative study on policies in Austria, Belgium, Lithuania, Sweden, and the United Kingdom revealed the problematic nature of the criteria identified, as highlighted in the following factors: “non-cooperative behaviour regarding obligations to leave the territory; previous criminal convictions; lack of documents; insufficient means of subsistence; insufficient ties to the country of residence”: European Council on Refugees and Exiles, “The legality of detention of asylum seekers under the Dublin III Regulation,” AIDA Legal Briefing No. 1, June 2015, at 4. The findings led the authors to conclude that “[t]he criteria determining ‘risk of absconding’ . . . tend to be overly broad, unclear and in some cases tenuously connected to factors conducive to determining the applicant’s future conduct”: ibid. Odysseus Network, “Alternatives to Immigration and Asylum Detention in the EU: Time for Implementation,” Jan. 2015, at 71. European Council on Refugees and Exiles, “Austrian court finds detention of asylum seekers subject to a ‘Dublin’ return currently unlawful,” Apr. 9, 2015. Odysseus Network, “Alternatives to Immigration and Asylum Detention in the EU: Time for Implementation,” Jan. 2015, at 71. “Before the Ministry of Home Affairs and National Security adopted the 2015 ‘Strategy for the Reception of Asylum Seekers and Irregular Migrants,’ asylum seekers were detained on the same grounds as other categories of non-citizens, with the only difference being that asylum seekers faced a maximum detention period of 12 months. Legal notice 417 of 2015 provided a new regulation for reception regulations, which establishes [the] following grounds for the detention of asylum seekers: a) to determine or verify identity or nationality; b) to determine those elements on which the application is based which could not be obtained in the absence of detention, in particular when there is a risk of absconding on part of the applicant; c) to decide on the applicant’s right to enter Maltese territory; d) when the applicant is subject to a return procedure and there are reasonable grounds to believe that the application for international protection was made merely to delay or frustrate a[n] enforcement of a return decision; e) to protect national security or public order; f) to determine the member state responsible for the examining of the application”: Global Detention Project, “Malta Immigration Detention Profile,” Aug. 2017, at 5–6. Aditus, Jesuit Refugee Service, and European Council for Refugees and Exiles, “AIDA Country Profile: Malta,” 2016, at 14. Detained refugee claimants may be required to produce a surety, but this requirement is not automatic: UNHCR, “Options Paper 2: Options for governments on open reception

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requirements as well as community supervision upon release.889 Other countries avoid the risk of imprisonment by routinely assigning unauthorized refugees to live in reception centers, where housing and other basic needs are met. Under German law, for example, all refugee applicants are assigned to live in a reception center based upon a distribution quota agreed to by the federal and Länder governments. Though those with relatives present may apply to be relocated in order to join them, refugees must stay in the assigned reception center in principle for three months; compulsory accommodation ends when protection is granted.890 In Bulgaria891 and Ireland,892 refugees seeking protection may reside outside a reception center, but only if they submit a waiver of their right to benefit from social assistance. France employs a system of house arrest and surveillance for up to six months, but resorts to detention where such arrangements prove ineffective.893

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and alternatives to detention” (2015) (UNHCR, “Options Paper 2”), at 8. Under the Immigration Act 2016, bail may be granted by an immigration officer or a judge of the First-Tier Tribunal and may be subject to conditions such as living at a specific address, reporting to the Immigration Service, undertaking only permitted employment and studies, and wearing an electronic monitoring device: Immigration Law Practitioners’ Association, “Bail and Detention in the Immigration Act 2016,” Sept. 7, 2016, at 7–8. For those who do not apply for bail themselves or whose applications are denied, the UK Home Office must arrange hearings after four months and every four months thereafter: Immigration Law Practitioners’ Association, “Immigration Act 2016: Immigration Bail,” Aug. 1, 2016. The Act also retroactively renders lawful the imposition of bail conditions on persons released but who cannot lawfully be detained again: ibid. Support is provided by the Toronto Bail Program (TBP), a non-profit entity that acts as “bondsperson” for those lacking family or other eligible guarantors: UNHCR, “Options Paper 2,” at 8. “Under the TBP, no payment is made, rather asylum-seekers are released on the basis of the TBP’s guarantee . . . As per the contract signed between the asylum-seeker and the TBP, they agree to appear for all appointments, to notify the TBP of a change of address and to participate in meaningful activities while in Canada (e.g. education, vocational training, work) . . . Failure to comply with reporting obligations may result in TBP informing the provincial authorities, in which case the person would be placed under a Canada-wide arrest warrant. TBP makes it explicit that failure to report may result in return to detention”: ibid. at 7. Ibid. at 9. Asylum-seekers are allowed to reside outside the reception centers at so-called “external addresses” contingent on submitting a formal waiver from their right to accommodation and social assistance and agreeing to cover rent and other related costs at their own expense: Bulgarian Helsinki Committee, “Types of Accommodation: Bulgaria,” in ECRE Asylum Information Database, Dec. 31, 2016, in www.asylumineurope.org, accessed Feb. 10, 2020. Asylum-seekers are not obliged to use RIA (Reception and Integration Agency) accommodation and may source their own accommodation or stay with relatives or friends. However, to do so means that the individual is not entitled to state social welfare supports, e.g. medical card, rent allowance, etc.: Irish Refugee Council, “Criteria and Restrictions to Access Reception Conditions: Republic of Ireland,” in ECRE Asylum Information Database, Apr. 27, 2017, in www.asylumineurope.org, accessed Feb. 10, 2020. European Council on Refugees and Exiles, “The Detention of Asylum Seekers in Europe: Constructed on Shaky Ground?” June 2017, at 11.

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Hong Kong, by contrast, does not require refugee claimants to reside in a reception center, but permits them to live in the community pending the processing of their claims; this arrangement may be revoked for those who fail to report to monthly meetings scheduled with immigration officials.894 Sweden similarly requires that non-detained claimants meet regularly with their assigned caseworkers, but reserves the right to confiscate passports and other identity documents for the duration of the program.895 Danish law, which provides for a variety of conditions that may be imposed to retain the privilege of non-detention, authorizes the use of an electronic monitoring device for those who fail to abide by them.896 The United States has employed phone reporting as an alternative to such devices.897 Even if there is no general commitment to the detention of all asylumseekers, detention may be routine for a subset of refugees, defined by the place or manner of entry into the asylum country. In Germany, asylum-seekers who apply at airports are routinely detained in transit zones, though only pending a decision on whether their claim to be a refugee is manifestly unfounded.898 A Canadian law allows for the designation of refugees smuggled into Canada as part of a group as “designated foreign nationals” subject to mandatory detention and delayed access to permanent residence.899 In a measure purportedly 894

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All claimants “are required to report in person to the HKID once a month as scheduled. Failure to report is tantamount to absconding and consequently results in an investigation and potential arrest”: UNHCR, “Options Paper 2,” at 7. Global Detention Project, “Sweden Immigration Detention,” Mar. 2016, www.globalde tentionproject.org/countries/europe/sweden, accessed Feb. 10, 2020. See also UNHCR, “Options Paper 2,” at 7. “Until a decision is made as to whether or not an alien is to be expelled, refused entry, transferred or retransferred or returned from Denmark on the grounds that . . . he is not entitled to stay in Denmark, and until such decision can be enforced, provided that it is found necessary for ensuring the presence of the alien concerned, the police may order the alien to – (i) deposit his passport, other travel documents and ticket with the police; (ii) provide bail in an amount determined by the police; (iii) stay at an address determined by the police; and (iv) report to the police at specified times”: Denmark, 1983 Aliens Act (Consolidation Act No. 863 of June 25, 2013), Art. 34(1). If the individual fails to abide by these measures he or she can be forced to wear an electronic monitoring device: ibid. at Art. 36(1). According to a UNHCR report on the subject, “[i]ndividuals can ‘check-in’ with US immigration enforcement authorities over the phone via the contractor’s biometric voice recognition software. The frequency of the call-in is based on an assessment of risk and may be increased or decreased depending on the stage of an individual’s case. If the individual does not call-in at the appropriate intervals, reporting may be escalated or they may subject to re-detention”: UNHCR, “Options Paper 2,” at 7. Asylum Procedure Act, s. 18(a), “Procedure in case of entry by air” (as amended Mar. 11, 2016). See also Informationsverbund Asyl und Migration, “Border Procedure (Border and Transit Zones): Germany,” Asylum Information Database; “Refugee Accommodation in the Airport no Deprivation of Liberty,” MiGAZIN, May 9, 2017. Persons over the age of sixteen arriving who are “irregular arrivals” are deemed to be “designated foreign nationals” subject to automatic and mandatory detention for at least

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aimed at weeding out “fake refugees,” Australia announced that it would refuse to consider claims lodged after Oct. 1, 2017 for persons arriving by boat.900 An appellate court in the United States has upheld the denial of refugee status on the basis of mode of arrival. In a case in which the refugee arrived hidden in a “metal box that was welded to the bottom of a car and driven across the border in the desert heat,” the Court determined that “to grant asylum in this case would encourage other individuals . . . to enter the United States by risking their lives by cramming themselves into these boxes.”901 The most common situation-specific reason for ordering the detention of refugees, particularly in the less developed world, is the existence of a “mass influx” of asylum-seekers.902 For example, Thailand imposed a strict policy of detention in closed camps on Cambodian refugees, reportedly enforced by the extrajudicial execution of persons discovered outside the camp boundaries.903 Uganda confined over 1,000 Rwandan refugees arriving in 2005 in very

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two weeks, renewable twice for six months each time. Moreover, designated refugee claimants are not considered to be “lawfully present” in Canada; nor are those recognized as refugees considered to be lawfully staying: Protecting Canada’s Immigration System Act 2012, at ss. 20.1 (on power/authority to designate), 31.1 (lawfully staying), 55(3.1) (mandatory detention), 57.1 (timeline for detention); and 11(1), 20.2, 24(5)–(7), 25(1) (on constraints on access to permanent residence). The measure targeted refugees arriving by sea between August 2012 and January 2014 and whose claims were barred until December 2016 by the “no advantage” rule, which purported to ensure that they did not benefit over persons already waiting within refugee camps: B. Doherty, “Peter Dutton Gives Asylum Seekers in Australia Deadline to Apply for Refugee Status,” Guardian, May 20, 2017. In addressing the issue of maritime arrivals, the Immigration Minister reportedly stated that “[w]e aren’t going to tolerate that any longer . . . If people think they can rip the Australian taxpayer off, if people think that they can con the Australian taxpayer, then I’m sorry, the game’s up and we won’t allow people to take Australian taxpayers for a ride”: C. Brinsden, “Dutton says ‘the Game’s Up’ for Fake Refugees,” Australian Associated Press, May 21, 2017. Junming Li v. Holder, 656 F. 3d 898, 899, 900 (US CA9, Sept. 1, 2011). The deterrent rationale was upheld by the Court of Appeals, which noted that “[w]hile there is a sense of unfairness in singling out Li for the purpose of sending a message to the other potential asylum seekers, the BIA is not required to grant asylum to every qualified applicant”: ibid. at 906. “Problems relating to detention have also arisen in large-scale influx situations where States frequently find it necessary to place asylum-seekers in camps or reception centres due to concerns for community welfare, national security and the need to provide accommodation to large numbers of persons. In certain instances, however, asylumseekers have been placed in ‘closed camps’ for unduly long periods under harsh conditions as part of a policy of ‘humane deterrence’ adopted as a result of a decline in resettlement prospects. In such cases refugees are required to remain in closed camps indefinitely without any immediate prospect of a solution”: UNHCR, “Detention Note,” at [39]. Amnesty International, “Thailand: Extrajudicial Execution of Kampuchean Refugees” (1988). More generally, “[t]he authorities treat refugees who leave the camps as illegal immigrants, subject to arrest. Thai police, soldiers, or paramilitaries who apprehend camp residents outside the camps either send them back, often after exacting forced labor or requiring bribes, or send them to one of Thailand’s Immigration Detention Centers, from

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difficult conditions at the Nakivale settlement on the basis that “it would prevent double registration” of their protection claims.904 Following a “surge” of unauthorized arrivals at its southern border in 2014, the United States adopted an extended no-release policy for Honduran, Salvadoran, and Guatemalan families and unaccompanied children found to have a “credible fear” of persecution; the aim of the measure was to “send a message that such immigrants, coming en masse, are unwelcome.”905 Following the implementation of the EU–Turkey agreement, Greece applied a policy of “automatic de facto detention” for those arriving at Reception and Identification Centers;906 this practice was supplemented in mid-2016 by the transfer of refugees accused of “law-breaking conduct” from the Greek islands to pre-removal centers on the mainland.907 Even UNHCR has been involved in the establishment and administration of temporary holding areas for refugees arriving in a mass influx situation,908 including for example those for Rwandan and Burundian refugees in Tanzania in 1996.909 Perhaps most notoriously, it collaborated in the detention of Vietnamese asylum-seekers arriving in Hong Kong after 1982. Persons seeking protection were held in prison-like conditions, most for more than two years, pending a determination of their claims to refugee status under UNHCR auspices. Hong Kong’s Secretary of State proclaimed that “[t]his

904 905 906

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which they are deported to Burma”: Human Rights Watch, “Thailand: Refugee Policies Ad Hoc and Inadequate,” Sept. 13, 2012. (2005) 175 JRS Dispatches (July 11, 2005). RIL-R v. Johnson, 80 F. Supp. 3d 164 (US DCDC, Feb. 20, 2015), at 172. “More precisely, people arriving after the implementation of the statement are subject to a 3-day restriction on their ‘freedom of movement’, as described by law, within the premises of the Reception and Identification Centres (RIC), which can be further extended by a maximum of 25 days if reception and identification procedures have not been completed. Taking into consideration that people are not allowed to leave the RIC, the so-called restriction of movement is tantamount to a de facto detention measure of all newly arrived persons”: Greek Council for Refugees, “Place of Detention: Greece,” Asylum Information Database, 2017. See also Human Rights Watch, “Greece: Asylum Seekers Locked Up,” Apr. 14, 2016. Greek Council for Refugees, “Greece,” Asylum Information Database, 2016; see also European Council on Refugees and Exiles, “The detention of asylum seekers in Europe: Constructed on shaky ground?” June 2017, at 8. “There is a trend towards camp-like solutions on the part of UNHCR in the Horn of Africa . . . The increasing permanence of UNHCR’s camp operations in locations like Dadaab, however, where UNHCR protects over 100,000 mostly Somali refugees, is problematic. UNHCR tends to maintain refugees in camps, at the Kenyan government’s insistence, at the expense of basic human rights including freedom of movement and the right to employment”: J. Hyndman and B. Nylund, “UNHCR and the Status of Prima Facie Refugees in Kenya,” (1998) 10(3) International Journal of Refugee Law 21, at 45–46. Information provided by UNHCR Ngara, Feb. 6, 1996; personal interview with Mr. JeanMarc Mangin of CARE USA, Sept. 12, 1996. Even at the end of 2000, “approximately 490,000 refugees . . . remained under the responsibility of UNHCR”: S. van Hoyweghen, “Mobility, Territoriality and Sovereignty in Post-Colonial Tanzania,” (2002) 21(1–2) Refugee Survey Quarterly 300, at 300.

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move should make Hong Kong less attractive for refugees. When the message gets back to Vietnam, it should help to deter people from setting out . . . It is urgent that word gets back to Vietnam at once that those who come will be greeted by closed camps.”910 The conditions in which refugees are detained are often appalling. Detention facilities for refugees in Hungary, for example, were reported to lack heat and other necessities; persons suffering from distress or mental disorders moreover lack access to adequate healthcare.911 In the United States, refugees may be detained in jails and facilities contracted through private security firms, including institutions built to house criminals.912 Thailand came under attack from human rights groups in 2014 for detaining asylum-seekers arriving at its borders in conditions “which do[] not allow detainees to lie down to sleep”;913 in one extreme case, journalists discovered 276 Rohingya refugees in two “cages” designed for only fifteen people.914 Refugee detention facilities in Libya are 910

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Cited in Amnesty International, “Hong Kong: Arbitrary Detention of Vietnamese Asylum Seekers” (1994), at 1. According to one report on the Nyírbátor detention center, “conditions are awful. Beds are infested by bed bugs because they haven’t been fumigated properly, which is made worse by the decision made by the directors of the camp not to replace the mattresses because of the costly charge. As a result, people are contracting bad skin rashes and gruesome bites . . . People are facing near freezing conditions as they sit in flip-flops and t-shirts . . . It is the responsibility of Hungarian authorities to clothe people, but they refuse to help”: N. Ilsley, “HRW says Refugees ‘Treated Like Criminals’ in Hungarian Detention Center,” Newsweek, Dec. 3, 2015, quoting Lydia Gall, Human Rights Watch researcher for Eastern Europe and the Western Balkans. From October 2015 to June 2018, “ICE paid contractors operating the 106 detention facilities . . . more than $3 billion . . . Despite documentation of thousands of deficiencies and instances of serious harm to detainees that occurred at these detention facilities, ICE rarely imposed financial penalties”: Office of the Inspector General, US Homeland Security, “ICE Does Not Fully Use Contracting Tools to Hold Detention Facility Contractors Accountable for Failing to Meet Performance Standards,” Jan. 29, 2019. It was earlier reported by the American Civil Liberties Union that “[b]eyond increasing direct contracts with private prisons, [Department of Homeland Security] officials have been trying to buy more county jail space for immigration detention purposes. In at least a few cases, ICE is seeking to contract with a county which in turn will subcontract with a for-profit prison company. There is even discussion of waiving ICE national detention standards and 2003 Prison Rape Elimination Act requirements for these beds. As one official put it, ‘They’re scraping the bottom looking for beds’”: American Civil Liberties Union, “ACLU calls on HSAC to urge immediate moratorium on expansion of immigration detention,” Oct. 26, 2016, at 4. “According to a 2014 Amnesty International report, official regulations in Thailand allow for cell sizes in detention centres to be a minimum of 1.19 metres per person . . . [Human Rights Watch] has also reported on the abysmal conditions in detention centres, ‘including severe overcrowding, putrid sanitation, and an atmosphere of violence.’ Detainees have repeatedly complained of overcrowding and extremely poor hygiene”: Global Detention Project, “Thailand Immigration Detention Profile,” Feb. 2016, at 2–3. “At the time, Thai authorities acknowledged that they were ‘aware of the overcrowding issue at the existing immigration facilities’ and that alternative arrangements were being

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similarly overcrowded, unsanitary, and without sufficient food or medical care.915 Overcrowding, disease, and poor sanitation in Malaysia’s detention centers resulted in 118 deaths over a two-year period.916 Conditions in Australia’s offshore detention camps on Papua New Guinea’s Manus Island, much of which have been intentionally withheld from the public eye,917 were repeatedly condemned by UN officials.918 The severity of circumstances at Manus Island led not only to a settlement of A$70 million for those held

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made. According to the journalists, the head of Thailand’s parliamentary Border Affairs Committee commented that ‘The conditions you have seen would even be difficult for animals’”: Global Detention Project, “Thailand Immigration Detention Profile,” Feb. 2016, at 3. “Conditions of detention in Libya have long been a source of deep concern to the international community. The former director of the Italian secret service told the Italian Parliament in 2005 that ‘undocumented migrants in Libya are caught like dogs’ and placed in overcrowded facilities that are in such a poor state of repair that ‘policemen must wear a dust mask on the mouth because of the nauseating odours’ . . . Since the onset of civil war, conditions of detention have worsened as a result of fighting in all parts of the country and the related breakdown in public services. Recurrent criticisms include overcrowding, scarcity of food and drinking water, limited or inexistent access to health (leading to the spread of skin diseases and other medical problems), lack of access to fresh air, and poor hygienic conditions. Observers have said that the situation in immigration detention facilities is considerably worse than that of facilities used by the Judicial Police”: Global Detention Project, “Libya Immigration Detention Profile,” Feb. 2015. Causes of death were provided for only 68 of the deceased: “Pneumonia and lung infections led to 19 deaths, at least 10 were the result of various heart-related conditions, and five died from the bacterial disease leptospirosis, which is often spread through the urine of infected animals, including rodents. Sepsis, or septic shock, a condition usually triggered by other illnesses, claimed 21 victims, including some who were suffering from pneumonia or leptospirosis, various forms of tuberculosis led to three deaths, and one Filipino woman committed suicide”: A. Ananthalakshmi, “More than 100 Die in Malaysian Immigration Detention Camps in Two Years,” Reuters, Mar. 30, 2017. Since the adoption of its more militarized Operation Sovereign Borders, the Australian government has engaged in what critics term “an increasing culture of secrecy”: “The government ended its weekly briefings and began to invoke ‘on-water matters’ in refusing to answer questions about incidents or policy decisions. Journalists had not been allowed inside the centres for some time, but in January 2014 the Nauruan government, which would become increasingly hostile to media attention on issues with its facility, raised the application fee for a media visa to the country to a non-refundable $8,000. In 2015 the government introduced the Border Force Act which made the disclosure of information about conditions inside offshore centres by employees punishable with up to two years in prison”: H. Davidson, “Offshore Detention: Australia’s Recent Immigration History a ‘Human Rights Catastrophe,’” Guardian, Nov. 12, 2016. See e.g. F. Crépeau, “UN Special Rapporteur on the human rights of migrants concludes his official visit to Australia, Nov. 1–18” (2016); UNHCR, “Submission by the Office of the United Nations High Commissioner for Refugees on the Inquiry into the serious allegations of abuse, self-harm and neglect of asylum-seekers in relation to the Nauru Regional Processing Centre, and any like allegations in relation to the Manus Regional Processing Centre,” referred to the Senate Legal and Constitutional Affairs Committee, Nov. 15, 2016.

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there,919 but also to the filing of a complaint with the International Criminal Court that Australia’s immigration program amounted to a crime against humanity.920 As the complaint reported in relation to those confined to the island, Refugees and asylum seekers are detained behind razor wire, and staff crowd 50 people to a tent, with the majority of men sleeping in bunk-beds. The top bunks press against the ceiling of the tent; one individual recalls it being so hot that people “could not sleep there” and instead slept on the floor . . . In 2014, a spokesman for the Refugee Action Coalition noted that in the Manus camps, “[s]kin and fungal infect[ion]s are endemic. The toilets are often blocked and have to be hosed out, so sewage gets on the floor. If the tide is high, the raw sewage also comes back up. The floors in all the facilities were constantly wet and there was a strong smell of sewage around the centre at all times.”921

Of particular concern, children – both the dependents of adults seeking protection, and child refugees themselves – may not be exempted from detention regimes. At the peak of Australia’s practice in mid-2013, for example, nearly 2,000 refugee children were being detained in closed facilities, for an average period of over fourteen months.922 Mexico has also drawn criticism for confining unaccompanied children in facilities shared with adults pending the processing of their claims,923 while the United Kingdom reportedly paid over 919

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B. Doherty, “Manus Island: Judge Approves $70m Compensation for Detainees,” Guardian, Sept. 5, 2017. “Australian governments have attempted to contract-out the detention facilities, and thereby avoid responsibility, by concluding agreements with Nauru and Papua New Guinea and by contracting with private corporations to run the facilities. Nevertheless, that liability for international crimes can be traced not only to direct perpetrators on the ground, but also to public officials and corporate officers and directors. Such individuals are participating and essentially contributing to an overall common plan. That plan includes a critical element of criminality. The structures of government and corporate effective control over the camps further establish the superior responsibility of high-level public officials and corporate officers”: J. Cavallaro et al., Communiqué to the Office of the Prosecutor of the International Criminal Court under Article 15 of the Rome Statute, “The Situation in Nauru and Manus Island: Liability for crimes against humanity in the detention of refugees and asylum seekers,” Feb. 14, 2017, at 6. Ibid. at 41–42. As Papua New Guinea prepared for the closure of the facility in the wake of a ruling as to its illegality, Australia remained firm in its insistence that none of those detained would be resettled in its territory. However, the refusal of over 600 refugees to leave the facility amid increasing attacks by the local community culminated in a nearly month-long standoff followed by their forcible removal: D. Cave, “Closing Manus Island Center would Hurt Refugees, Australia is told,” New York Times, Oct. 25, 2017; B. Doherty, “Manus Detention Centre Cleared of all Refugees and Asylum Seekers,” Guardian, Nov. 24, 2017. M. Bochenek, “Australia’s Detaining of Migrant Children Denounced Again,” Sydney Morning Herald, Apr. 9, 2015. Human Rights Watch, “Closed Doors: Mexico’s Failure to Protect Central American Refugee and Migrant Children,” Mar. 2016, at 80–91; see also V. Fernández, “On the

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£1 million to a group of forty children – some of whom were detained with adults – whose ages it failed to recognize.924 Detention of children in other areas has become the rule rather than the exception: in Malaysia, Indonesia, and Thailand, refugee children are detained for indefinite and sometimes lengthy periods without judicial oversight. Children are detained in cells housing dozens of unrelated adults, frequently separated from their family members along age and gender lines, with cramped and substandard sleeping facilities, no privacy from unrelated adults, little or no educational opportunities, little or no recreational space or activities, extremely limited access to healthcare and at risk of sexual and other forms of violence and exploitation.925 They are held twenty-four hours a day, seven days a week in overcrowded conditions with inadequate hygiene and lack of access to adequate and timely medical treatment, leading to a number of reports of children in detention dying from treatable illnesses in recent years. Beyond penalties imposed directly on refugees themselves, many countries also impose criminal or other sanctions on persons or organizations responsible for assisting them to seek protection. Under Canadian law, any person or organization transporting a non-citizen contrary to visa requirements is liable to prosecution under the Protecting Canada’s Immigration System Act926 (though in practice, the government has limited prosecution to those involved in commercial operations).927 A similar policy underlay Italy’s arrest, detention, and prosecution of seven Tunisian fishermen for rescuing forty-four

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Way to the US, Children Seeking Asylum are often put in Mexico’s Detention Centers,” Public Radio International, Jan. 3, 2017. D. Taylor, “Council Wrongly Classed Asylum Seeker Children as Adults,” Guardian, May 16, 2013. Save the Children and Asia Pacific Refugee Rights Network, “Unlocking Childhood: Current Immigration Detention Practices and Alternatives for Child Asylum Seekers and Refugees in Asia and the Pacific,” May 2017, at 2. “No person shall organize, induce, aid or abet the coming into Canada of one or more persons knowing that, or being reckless as to whether, their coming into Canada is or would be in contravention of this Act”: Immigration and Refugee Protection Act 2001, at s. 117(1) (as amended Oct. 18, 2017). A previous version of this law was invalidated in 2015: R v. Appulonappa, [2015] SCC 59 (Can. SC, Nov. 27, 2015), at [85]. Fines of up to $1,000,000 and/or life imprisonment are possible for breach of the law: ibid. at s. 117(3). There is no exemption from this provision if the persons transported are genuine refugees; such factors as motive and profit are relevant only to the penalty to be imposed: ibid. at s. 121. The refugees themselves, however, may claim the benefit of s. 133 of the Act, which provides that “[a] person who has claimed refugee protection, and who came to Canada directly or indirectly from the country in respect of which the claim is made, may not be charged with an offence . . . in relation to the coming into Canada of the person, pending disposition of their claim for refugee protection or if refugee protection is conferred.” In 2007, smuggling charges were brought against a refugee aid worker for assisting twelve Haitian nationals, including children, who wished to claim refugee status in Canada. The charges were dropped less than two months later following public outcry by former government officials and local and international rights groups: Canadian Council for

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refugees from a sinking dinghy off the coast of Lampedusa.928 Another common practice is for destination countries to impose sanctions against airlines and other commercial carriers that transport undocumented refugees to asylum states.929 Australian law imposes fines of up to A$18,000930 and provides for no exemption for the transport of those whose protection claims are found to be genuine;931 furthermore, the cost of detaining refugee claimants may be passed on to the owner of the vessel on which they arrived.932 While the Carrier Sanctions Directive encourages EU member states not to impose penalties for the transport of persons seeking protection, its mandated fines for bringing undocumented aliens to Europe933 give rise to situations in which “carrier

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Refugees, “‘Proud to Aid and Abet Refugees’ Campaign,” Jan. 2008; see also U. Gandhi, “Crown Drops Human Smuggling Charges,” Globe and Mail, Nov. 9, 2007. P. Popham, “Tunisian Fishermen Face 15 years’ Jail in Italy for Saving Migrants from Rough Seas,” Independent, Sept. 19, 2007. “The two captains and their crew members were arrested and criminally charged with facilitating illegal immigration and resisting public officers after they landed at Lampedusa to disembark the rescued migrants . . . In November 2009 the captains and their five crew members were acquitted by the Court of Agrigento of the charges relating to facilitating illegal immigration, but the two captains were convicted of charges of resisting a public officer and committing violence against a warship . . . in connection with their refusal to turn their boats around and not enter the harbour. The captains were required to forfeit their fishing vessels and were sentenced to prison”: N. Frenzen, “Italian Appeals Court Acquits 2 Tunisian Fishing Boat Captains who Rescued Migrants in 2007,” Migrants at Sea, Sept. 29, 2011. “Carrier sanctions, in their broader meaning, consist of three components: first, the duty of a carrier to remove an undocumented migrant brought to a country; second, the duty of the carrier to bear all expenses (including detention or accommodation) until the undocumented migrant is removed; and, third, a fine imposed on the carrier for bringing an undocumented migrant to the frontier of a state”: T. Rodenhäuser, “Another Brick in the Wall: Carrier Sanctions and the Privatization of Immigration Control,” (2014) 26(2) International Journal of Refugee Law 223 (Rodenhäuser, “Carrier Sanctions”), at 226. A detailed account of the ways in which carrier sanctions operate to prevent access to asylum is found in Amnesty International, “Cell Culture: The Detention and Imprisonment of Asylum-Seekers in the United Kingdom” (1996), at 26–37. Migration Act, s. 229(2) provides for a fine “not exceeding 100 penalty units” in the event of a conviction; in July 2015, the government increased the single penalty unit value to A$180: E. Dale, Department of Immigration and Border Protection Notice No. 2015/28, Oct. 23, 2015. See also A. Hirsch, “To Stop Boat Deaths, Abolish Carrier Sanctions and Let Asylum Seekers Travel by Plane,” RightNow.org, Dec. 8, 2016. Migration Act, s. 228B(2). This policy makes Australia “the only country in the world to impose a universal visa requirement on non-citizens”: A. Hirsch, “To Stop Boat Deaths, Abolish Carrier Sanctions and Let Asylum Seekers Travel by Plane,” RightNow.org, Dec. 8, 2016. Migration Act, s. 213. This general provision does not appear to exempt those persons who are later found to be genuine refugees or who are granted a substantive visa: see A. North and P. Decle, “Courts and Immigration Detention: ‘Once a Jolly Swagman Camped by a Billabong,’” (2002) 10(1) Australian Journal of Administrative Law 5. EU Council Directive 2001/51/EC (June 28, 2001), supplementing the provisions of Art. 26 of the Convention implementing the Schengen Agreement of June 14, 1985, at Arts. 4(2) and

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personnel are de facto required to determine whether a person has a valid claim for international protection.”934 This is evident in measures enacted by Austria and France, which provide for an exemption from fines only if a protection claim is ultimately determined to be well-founded,935 and in the Swedish Minister of Justice’s statement that it would be “juridically impossible” to grant the airline industry’s request for an exemption in relation to Syrian refugees.936 In contrast, Uganda imposes penalties against only those who knowingly carry or transport persons without valid documents; in addition, it exempts penalties for transporting a refugee “whom [the carrier] has reasonable grounds to believe is genuinely seeking asylum.”937 Refugee Convention, Art. 31 Refugees Unlawfully in the Country of Refuge 1. The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

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3. The expectation of exemption from prosecution where the person transported applies for asylum is set by the Preamble, rather than codified in an express requirement. Rodenhäuser, “Carrier Sanctions,” at 229. The European Council on Refugees and Exiles reports that “given the discretion left to Member States by the Directive, there are substantial differences amongst them, with some States providing for exemptions only for those who are subsequently recognised as refugees and others providing for exemptions also when the third country national is granted a subsidiary form of protection”: S. Sirtori and P. Coelho, “Defending Refugees’ Access to Protection in Europe” (Dec. 2007), at 29. In Austria, carriers may be fined up to €15,000 for transporting a foreigner without the required travel documents; such fines may be voided, however, where the foreigner “receives asylum or subsidiary protection or cannot be sent back to his country of origin for reasons of non-refoulement”: European Migration Network, “Ad Hoc Query on implementing Council Directive 2001/51/EC,” Dec. 13, 2012, at 2. Carriers are exempt from penalties in France if the passenger submits an asylum application which is not manifestly unfounded: ibid. at 6. In response to a request from the Swedish airline industry to relax carrier liability for transporting refugees from Syria’s neighboring countries, “Justice Minister Morgan Johansson told Swedish Radio News that it is juridically impossible for a single country to temporarily suspend Carriers Liability, since the basis is an EU directive”: “Swedish Airline Industry Wants to be able to Fly Refugees to Sweden,” Radio Sweden, Sept. 10, 2015. However, one study found that Swedish authorities had imposed a total of only ten fines at Stockholm Arlanda Airport during the preceding ten-year period, a finding which the author attributed to a national openness to receiving immigrants generally: T. Baird, “Carrier Sanctions in Europe: A Comparison of Trends in 10 Countries,” (2017) 19(3) European Journal of Migration 307, 330–331. Uganda Refugee Act 2006, s. 47.

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2. The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularized or they obtain admission into another country. The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country. Civil and Political Covenant, Art. 9(1) Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. Civil and Political Covenant, Art. 10(1) All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. Perhaps the most important innovation of the 1951 Refugee Convention is its commitment to the protection of refugees who travel to a state party without authorization.938 For the first time, the duty of non-refoulement was conceived as the entitlement of all refugees, including those who arrive without permission to enter the territory of an asylum country.939 This decision to grant protection against refoulement to all refugees, whether authorized or unauthorized, closed the most critical protection gap that had initially prompted the drafting of a specific duty of non-penalization.940 Because even 938

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Lord Bingham has characterized Art. 31 as embodying one of the Refugee Convention’s “three broad humanitarian aims . . . to protect refugees from the imposition of criminal penalties for breaches of the law reasonably or necessarily committed in the course of flight from persecution or threatened persecution”: R v. Asfaw, [2008] UKHL 31 (UK HL, May 21, 2008), at [9]. See Chapter 4.1.1. The initial drafts of the Refugee Convention were unclear in their commitment to grant protection against refoulement to refugees who arrived without authorization. The Secretary-General’s draft Art. 24(1) would have guaranteed that refugees “who have been authorized to reside [in the asylum country] regularly” would benefit from a guarantee that states would “not . . . remove or keep [them] from [their] territory, by application of police measures, such as expulsions or non-admittance at the frontier (refoulement)”: United Nations, “Draft Convention,” at 46. Draft Art. 19(1) of the French draft was essentially the same, though an exception was included to protect the right to take measures “dictated by reasons of national security”: France, “Draft Convention,” at 9. The language of the more general obligation, not textually restricted to authorized refugees, was less explicit. Draft Art. 24(3) provided that “[e]ach of the High Contracting Parties undertakes in any case not to turn back refugees to the frontiers of their country of origin, or to territories where their life or freedom would be threatened on account of their race, religion, nationality or political opinion”: United Nations, “Draft

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“irregular” refugees are now shielded from return in any manner whatsoever to a place in which they are at risk, Art. 33 can be relied upon to counter penalties which raise this prospect.941 Thus, for example, both Malawi’s attempt to send refugees lacking documentation back to the Democratic Republic of Congo942 and Thailand’s continuing refusal to distinguish refugees from illegal immigrants subject to deportation943 raise the specter of refoulement. The same is true of the policies of such countries as Ecuador,944 Mexico,945 Spain,946 and Turkey947 to refuse even to consider claims to refugee status which are not lodged within a fixed timeframe after arrival. There was also a breach of the duty of non-refoulement when Australia refused to consider the refugee claims of persons arriving by boat in order to weed out “fake refugees,”948 or when an American court denied protection to a refugee who arrived hidden in a metal box welded to the bottom of a car in order to deter others from taking such a risk.949 Laws that deny protection to refugees who have passed through other countries – for example, Canada’s use of a “subjective fear” requirement to refuse the claims of those who failed to seek asylum elsewhere950 or the US “firm resettlement” bar that is actually a penalty for failure to seek protection elsewhere951 – may also result in the failure to identify and protect genuine refugees.952 To the extent such practices expose persons who are in fact refugees (whether or not recognized as such) to the risk of return to persecution, they violate the duty of nonrefoulement.953 Yet if only penalties that force refugees back to the risk of persecution were prohibited, there would still be a risk of unfairness since refugees often have few options but to enter an asylum country without valid documentation or

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Convention,” at 45 (draft Art. 24(3)). The French draft was identical, but added a qualification regarding the permissible scope of relevant political opinions (“provided these opinions are not contrary to the principles of the United Nations as set forth in the Preamble to the United Nations Charter”): France, “Draft Convention,” at 9 (draft Art. 19(3)). See UNHCR Executive Committee Conclusion No. 15, “Refugees Without an Asylum Country” (1979), at [(i)]: “While asylum-seekers may be required to submit their asylum request within a certain time limit, failure to do so, or the non-fulfilment of other formal requirements, should not lead to an asylum request being excluded from consideration.” See text at note 834. 943 See text at note 829. 944 See text at note 853. See text at note 851. 946 See text at note 852. 947 See text at note 853. See note 900. 949 See text at note 901. 950 See text at note 848. See text at note 850. Similarly, the exclusion of a refugee claimant from eligibility for a protection visa on grounds that he had provided false identity documents to Australian authorities (AIB16 v. Minister for Immigration and Border Protection, [2017] FCAFC 163 (Aus. FFC, Oct. 16, 2017)) raises precisely the specter of refoulement. Persons are refugees when they meet the requirements of the refugee definition in fact, not simply when they are recognized as such: UNHCR, Handbook, at [28]. See Chapter 3.1 at note 28.

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otherwise in breach of its migration laws.954 As noted by the Constitutional Court of South Africa, “[a]sylum seekers do not arrive only where they should, nor do they always have the opportunities and agency to claim what they should. This, both international refugee law and international human rights law recognise.”955 The need for Art. 31 is perhaps greater today than ever before since, as Costello points out, states have both increased the range of general deterrent measures and subjected unauthorized entrants “to a range of diverse criminal and repressive measures.”956 Thus, as Lord Justice Simon Brown observed in the Adimi case, The need for Article 31 has not diminished. Quite the contrary. Although under the Convention subscribing states must give sanctuary to any refugee who seeks asylum (subject only to removal to a safe third country), they are by no means bound to facilitate his arrival. Rather they strive increasingly to prevent it. The combined effect of visa requirements and carrier’s liability has made it well nigh impossible for refugees to travel to countries of refuge without false documents . . . Self-evidently, [the purpose of Art. 31] was to provide immunity for genuine refugees whose quest for asylum reasonably involved them in breaching the law.957

While Art. 31 thus embodies a principled commitment to ensuring that refugees are not penalized for doing what international law authorizes – namely, seeking protection – that commitment is codified in a manner that advances a second, more instrumentalist, goal. States valued an orderly system for the processing of refugee claims, and realized that the threat of prosecution 954

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Courts have taken the view that Art. 31 is a response to “the difficulty of gaining access to a friendly shore. Escapes from persecution have long been characterized by subterfuge and false papers . . . Thus it was that Article 31(1) found its way into the 1951 UN Convention”: R v. Uxbridge Magistrates’ Court, ex parte Adimi, [1999] 4 All ER 520 (Eng. HC, July 29, 1999), per Simon Brown L.J., at 523. See also Attorney General v. Refugee Council of New Zealand Inc., [2003] 2 NZLR 577 (NZ CA, Apr. 16, 2003), at [6]: “In practice, refugee status claimants often arrive at a border without appropriate documentation or with documentation which appears to be false. This may be because they have fled without papers, or are travelling on forged documents, or have destroyed their travel documents when approaching the border in order to impede their being removed on arrival”; and Akinmade v. Immigration and Naturalization Service, 196 F. 3d 951 (US CA9, Nov. 5, 1999), finding that “we recognize that a genuine refugee escaping persecution may lie about his citizenship to immigration officials in order to flee his place of persecution or secure entry into the United States.” The court adopted a helpful distinction between the (inappropriate and illegal) use of false documents falsely to secure recognition of refugee status, and the (understandable and lawful) use of false documents to escape danger or enter an asylum country: ibid. Alex Ruta v. Minister of Home Affairs, [2018] ZACC 52 (SA CC, Dec. 20, 2018), at [50]. Costello, “Article 31,” at 7. R v. Uxbridge Magistrates Court, ex parte Adimi, [1999] 4 All ER 520 (Eng. HC, July 29, 1999), per Simon Brown L.J. at 523, 527.

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and punishment for the breach of general immigration laws would undoubtedly deter many unauthorized refugees from seeking to regularize their status. As observed in the Secretary-General’s background study, In actual fact, the [refugee], since he cannot enter the territory of a State lawfully, often does so clandestinely. He will then lead an illegal existence, avoiding all contact with the authorities and living under the constant threat of discovery and expulsion. The disadvantages of this state of affairs, both for himself and for the country on whose territory he happens to be, are obvious.958

With this concern in mind, Art. 31’s duty of non-penalization was framed with an explicit quid pro quo. Of the view that “[i]t would be in keeping with the notion of asylum to exempt from penalties a refugee, escaping from persecution, who after crossing the border clandestinely, presents himself as soon as possible to the authorities of the country and is recognized as a bona fide refugee,”959 the exemption from penalization is framed with two critical limitations. First, it requires good faith on the part of the refugee: he or she must come forward in a timely way and submit to the asylum state’s procedure for regularization of status. Second, the refugee must provide a credible explanation for why, in his or her particular circumstances, illegal entry or presence was required in order to secure access to protection.

4.2.1 Beneficiaries of Protection Because the risks associated with penalties on account of illegal entry or presence arise immediately upon arrival, the drafters agreed that no more than physical presence is required to invoke the protections of Art. 31.960 The provisional benefit of this right to be exempted from penalties on account of illegal entry or presence, including from detention or other restrictions on freedom of movement,961 must therefore be granted to all persons who claim refugee status, until and unless they are finally determined not to be Convention refugees:962 958

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United Nations Department of Social Affairs, “A Study of Statelessness,” UN Doc. E/1112, Feb. 1, 1949 (United Nations, “Statelessness”), at 20. United Nations, “Memorandum by the Secretary-General to the Ad Hoc Committee on Statelessness and Related Problems,” UN Doc. E/AC.32/2, Jan. 3, 1950 (Secretary-General, “Memorandum”), at 46. See Chapter 3.1.2. In the context of prosecution for illegal entry or presence, therefore, the accused person “must provide sufficient evidence in support of his claim for refugee status to raise the issue, but thereafter the prosecution bears the burden of proving – to the criminal standard – that the defendant was not a refugee”: R v. Mateta, [2013] EWCA Crim 1372 (Eng. CA, July 30, 2013), at [9]. The beneficiary class for Art. 31(2) is that defined in Art. 31(1): see Chapter 4.2.4 at note 1146. See e.g. Dec. No. 179/2011(Dmk. SC, Feb. 3, 2012); Dec. Nos. BO2913–BO2915, ECLI:NL: HR:2011:BO2913 (Neth. SC, Mar. 8, 2011); Arse v. Minister of Home Affairs, [2010] ZASCA 9

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That Article 31 extends not merely to those ultimately accorded refugee status but also to those claiming asylum in good faith (presumptive refugees) is not in doubt.963

Indeed, the English High Court of Justice determined that states must put in place procedures to ensure that Art. 31 protection is afforded even to “travellers recognizable as refugees, whether or not they have actually claimed asylum.”964 Three preliminary questions nonetheless arise regarding when this right is engaged. First, what of situations in which an asylum country externalizes its border control regime such that an immigration penalty can be imposed on a refugee even before physical arrival? While the language of Art. 31(1) speaks of refugees who “enter or are present in their territory without authorization,” Noll sensibly suggests that “the contemporary statecraft of extraterritorial border control” – something not contemplated when the Convention was drafted – is an element of context that must be taken into account in interpreting the provision.965 Given both the drafters’ unambiguous intention that immigration penalties not be allowed effectively to negate access to protection966 and their recognition that exemption from penalization should apply as soon as a refugee was physically present at the border,967 Art. 31 should be conceived in a purposive way that recognizes that states have often changed the way they define the “border” of state territory.968 To do otherwise would

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(SA SCA, Mar. 12, 2010); Bula v. Minister of Home Affairs, [2011] ZASCA 209 (SA SCA, Mar. 28, 2012). “Admittedly there may be an interim period between the claim to refugee status and recognition as a refugee when it may beg the question to say that the claimant is entitled to be treated as a refugee. Equally, however, it will not be possible during this period to say that the claimant is not entitled to be treated as a refugee. In those circumstances the risk of an undeserved penalty cannot be disregarded”: Attorney General v. E, [2000] 3 NZLR 257 (NZ CA, July 11, 2000, appeal to PC refused at [2000] 3 NZLR 637). R v. Uxbridge Magistrates Court, ex parte Adimi, [1999] 4 All ER 520 (Eng. HC, July 29, 1999), per Simon Brown L.J., at 527. See also Khaboka v. Secretary of State for the Home Department, [1993] Imm AR 484 (Eng. CA, Mar. 25, 1993), at 489. R v. Uxbridge Magistrates Court, ex parte Adimi, [1999] 4 All ER 520 (Eng. HC, July 29, 1999), per Simon Brown L.J., at 533. G. Noll, “Article 31,” in A. Zimmermann ed., The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary 1243 (2011) (Noll, “Article 31”), at 1247. With regard to the importance of interpreting text in the light of context, see Chapter 2.2. See text at note 959. See text at notes 962–963. The Full Federal Court of Australia has affirmed that “lawful presence” is not required to benefit from Art. 31: NBMZ v. Minister for Immigration and Border Protection, [2014] FCAFC 38 (Aus. FFC, Apr. 9, 2014), at [78]. Costello seems to adopt the more literal view, writing that “[i]t is now well-established that non-refoulement applies extraterritorially, as long as States are exercising ‘jurisdiction.’ However, the formulation of Article 31 is different. The formulation ‘enter . . . their territory’ seems only to embrace a narrow range of extraterritorial acts where the State encounters refugees seeking to enter. However, beyond some specific contexts where the refugee is unambiguously entering the State in question, Article 31 does not have the

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encourage states to avoid their obligations under Art. 31 by means of subterfuge – an option surely at odds with the duty to promote a treaty’s effectiveness conceived in line with its object and purpose.969 A second issue is whether Art. 31 immunizes refugees in transit from penalties imposed by a state through which they pass, rather than by the destination country. In the two leading cases, for example, false travel documents of refugees in transit to North America were detected by officials at Heathrow Airport, resulting in denial of boarding and prosecution in Britain for use of fraudulent travel documents.970 The reviewing courts sensibly determined that a purposive construction of the eligibility requirements for Art. 31 required immunity from penalization in such transit cases.971 The basic point is that Art. 31 – a provision intended to enable refugees to exercise their right to seek asylum – should be construed in a manner that takes account of the practical logistics of modern travel by air.972 The recognition that Art. 31 applies to safeguard refugees in transit follows also from the fact that it prohibits penalties not just on account of illegal entry (which may not describe the situation of those purely in transit), but also for illegal presence. Courts elsewhere have embraced the British approach to this question.973

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extraterritorial reach of Article 33 (non-refoulement)”: Costello, “Article 31,” at 23–24. Costello does not define the exceptional “specific contexts where the refugee is unambiguously entering the State.” On the other hand, she does indicate that Art. 31 applies where a state acts “extraterritorially in the vicinity of borders” (ibid. at 23) and notes that the (European) prohibition of collective expulsion’s applicability on the high seas may suggest that “those who are interdicted should be equated with those who have entered” (ibid. at 24). See Chapter 2.3. By way of analogy, the High Court of Australia determined that a duty of procedural fairness applied to detention at an “excised offshore place” because to “draw [a distinction] between destruction, defeat or prejudice of a right, on the one hand, and a discretionary power to confer a right, on the other, proceeds from too narrow a conception of the circumstances in which an obligation to afford procedural fairness might arise”: M61/2010 and M69/2010 v. Commonwealth of Australia, [2010] HCA 41 (Aus. HC, Nov. 11, 2010), at [75]. R v. Uxbridge Magistrates Court, ex parte Adimi, [1999] 4 All ER 520 (Eng. HC, July 29, 1999) and R v. Asfaw, [2008] UKHL 31 (UK HL, May 21, 2008). This approach was affirmed in R v. Mateta, [2013] EWCA Crim 1372 (Eng. CA, July 30, 2013), at [16]. The Asfaw and Adimi precedents were approved in MIF v. International Protection Appeals Tribunal, [2018] IECA 36 (Ir. CA, Feb. 19, 2018), at [26]. R v. Asfaw, [2008] UKHL 31 (UK HL, May 21, 2008), at [12]. Costello cites Dec. No. KKO:2013:21 (Fin. SC, Apr. 5, 2013) and Dec. Nos. BY4310, ECLI: NL:HR:2013:BY4310 and BY4238, ECLI:NL:HR:2013:BY4238 (Neth. SC, May 28, 2013): Costello, “Article 31,” at 26–27. In line with this optic, the Netherlands Supreme Court has in particular determined that refugees need only admit their use of false documents once they have reached their intended destination: Dec. No. BP7855, ECLI:NL:HR:2011: BP7855 (Neth. SC, July 5, 2011), at [16]. But despite acknowledging that “[i]mposing penalties . . . in a situation where the primary intent is to leave the transit country obviates the logic of Art. 31,” Noll adopts the more conservative view that “Art. 31 para. 1 does not

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A third question is whether exemption from penalization is a right inhering only in persons ultimately found to qualify as “refugees” or rather, as the English High Court put it, “to those claiming asylum in good faith (presumptive refugees).”974 While some courts have taken the view that penalties may be retroactively applied if refugee status is not recognized,975 this approach sets too high a bar. It presupposes that a refugee should be able to self-evaluate visà-vis the complex criteria of the refugee definition and only seek asylum if convinced that his or her circumstances map onto that legal standard.976 Related to this, it presumes that state parties embrace a common understanding of all components of the refugee definition, which they do not. Most fundamentally, though, risk of retroactive imposition of penalties if a protection claim ultimately fails would disincline those seeking protection from coming forward and declaring their presence to authorities – thus working against the drafters’ intention of ensuring that everyone submits to authorities rather than going underground.977 Art. 31 does not, however, prohibit the imposition of immigration penalties on all refugees. Because of the drafters’ instrumentalist orientation,978 protection against penalization for illegal entry or presence is only granted to those refugees who meet two conditions. First, they must take affirmative steps to make themselves known to officials of the asylum country within a reasonable period of time. And second, they must satisfy authorities that their breach of immigration laws was necessitated by the urgency of their search for protection. If either of these requirements is not met, there is no exemption from forms of penalization that fall short of refoulement.979

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go as far as to cover the use of [false or fraudulent] travel documents for onward travel”: Noll, “Article 31,” at 1260, 1266. R v. Uxbridge Magistrates Court, ex parte Adimi, [1999] 4 All ER 520 (Eng. HC, July 29, 1999), per Simon Brown L.J. at 527; affirmed in R v. Bei Bei Wang, [2005] EWCA Crim. 293 (Eng. CA, Feb. 3, 2005), at [6]. This proposition was conceded by counsel for the government in the House of Lords decision of R v. Asfaw, [2008] UKHL 31 (UK HL, May 21, 2008), at [7]. Costello opines that the application of Art. 31 to those claiming asylum in good faith is now widely regarded “as well-settled”: Costello, “Article 31,” at 15. The “good cause” requirement was more explicitly invoked by the New Zealand High Court to find that the benefit of Art. 31(1) accrues only to refugees who are ultimately able to prove their claim to Convention refugee status: Jiao v. Refugee Status Appeals Authority, [2002] NZAR 845 (NZ HC, July 29, 2002). See also R v. Liliane Makuwa, [2006] EWCA Crim 175 (Eng. CA, Feb. 23, 2006), at [20], finding that Art. 31 protection was owed to “a refugee . . . not simply . . . a person who has claimed asylum.” Austria and France exempt refugees from penalization only if and when they are formally assessed to qualify for refugee status: See text at note 935. Costello thus sensibly suggests that Art. 31 protection is owed not only to persons ultimately determined not to be refugees, but also to those whose claims are determined to be inadmissible: Costello, “Article 31,” at 15–17. See text at notes 980–981. 978 See text at notes 958–959. Even permissible penalization must not, however, cause refugees to be “pushed back into the arms of their persecutors”: see Chapter 4.1.2.

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4.2.1.1 Presentation to Authorities within a Reasonable Period of Time The first of the two eligibility criteria is the more straightforward. Art. 31 provides that refugees must “present themselves without delay to the authorities.” The goal of this clause is to establish an incentive for unauthorized entrants to make their protection claims within the framework established by the asylum state: The requirement for a refugee to present himself to authorities without delay is quite specifically designed to ensure that refugees regularize their position and obtain official assistance rather than proceeding by illegal stratagems and using the illegal services of shady agents.980

As such, only refugees who come forward of their own initiative, thereby demonstrating their good faith, are immune from penalization for breach of immigration laws.981 Exemption from penalization should not, of course, be denied to a refugee who mistakenly reports to officials of the wrong level or branch of government. For example, an asylum-seeker who advises officials of the city where he is staying of his situation has discharged his duty to present himself to “the authorities,” even if only national authorities have jurisdiction to regulate immigration or refugee protection.982 Nor should exemption be withheld from refugees who are prevented from coming forward to authorities, for example because their movements are tightly controlled by smugglers or traffickers.983 In neither of these cases is there any evidence of bad faith on the part of the refugee. On the other hand, the duty to present oneself to authorities in order to claim Art. 31 protection is not usually met by an individual who claims refugee status only after being apprehended or detained by authorities,984 as there 980 981

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R v. Asfaw, (2008) UKHL 31 (UK HL, May 21, 2008), at [113]. “It is fairly obvious that authorities have a basic interest in the early identification of aliens lacking authorization for entry or presence as refugees. Article 31, para. 1 provides an incentive for those aliens seeing themselves as refugees to reveal themselves, and, consequently, renders the control of the movements of such aliens more effective. The criterion features an element of voluntary subjection to the authorities of the State of destination”: Noll, “Article 31,” at 1259. Indeed, the Belgian representative clearly considered that local authorities were the officials who ought logically to be approached by refugees who had entered without authorization: Statement of Mr. Herment of Belgium, UN Doc. E/AC.32/SR.40, Aug. 22, 1950, at 6. Pest Central District Court Dec. No. 7.B.VIII.20.776/2013/34 (Hun. DC, Sept. 11 and Dec. 3, 2013), cited in Costello, “Article 31,” at 27. At the second session of the Ad Hoc Committee, the Belgian representative voiced his concern about the logic of exemption from immigration penalties in the case of a refugee who “[t]he moment he was discovered . . . could present himself to the local authorities, explaining the reasons he had taken refuge in that territory”: Statement of Mr. Herment of Belgium, UN Doc. E/AC.32/SR.40, Aug. 22, 1950, at 6. The French representative replied

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would in such a case be no good faith submission to authorities on the part of the refugee.985 As Grahl-Madsen observed, however, there is an interrelationship between the volitional and temporal components of the duty to come forward.986 Since exemption from penalization is owed so long as the refugee presents himself “without delay,” the benefit of Art. 31 should not be denied in circumstances where a refugee is arrested or detained before he or she could reasonably have been expected to seek to regularize status with authorities.987 In general, unless the refugee has truly “been in the territory a long time”988 before presenting herself to authorities,989 the duty to come forward “without

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that “in the case mentioned by the Belgian representative, the act was no longer voluntary, since the refugee who had entered illegally had been brought before the authorities by the police who discovered him. The refugee could therefore no longer benefit by the provisions of article [31]”: Statement of Mr. Juvigny of France, ibid. at 7. See also Statement of Mr. Henkin of the United States, ibid. Exemption from penalties was said to be contingent upon “a voluntary act. A person who presented himself to the authorities of a country after crossing its frontiers without authorization was performing a voluntary act”: Statement of Mr. Juvigny of France, UN Doc. E/AC.32/SR.40, Aug. 22, 1950, at 7. See also Statement of Mr. Winter of Canada, ibid.: “If a refugee presented himself to the authorities involuntarily, namely, only when he had been detained, he would naturally come under the law of the country.” As Noll writes, “the present criterion is linked to the refugee’s genuine intent, a form of good faith. The refugee’s conduct and due diligence serve as indications of such intent”: Noll, “Article 31,” at 1259. Grahl-Madsen, Commentary, at 176. This approach was embraced by the Supreme Court of Norway, which held that “assessment of whether the refugee had good cause for his infractions must also apply to the time frame of the violation. In cases involving the presentation of forged document to passport control especially, this assessment would, in practice, easily merge with the assessment of whether the person has informed authorities ‘without delay’”: A v. Public Prosecuting Authority, Case No. 2014/220, HR-2014-01323-A (Nor. SC, June 24, 2014), at [16]. See R v. Uxbridge Magistrates Court, ex parte Adimi, [1999] 4 All ER 520 (Eng. HC, July 29, 1999), per Simon Brown L.J. at 528–529, indicating that the requirement of a “voluntary exonerating act” ought not to be applied in order to deny the protection of Art. 31 to a person whose “intention was to claim asylum within a short time of his arrival,” but who was detained by authorities virtually as soon as he arrived in the asylum state. Statement of Mr. Juvigny of France, UN Doc. E/AC.32/SR.40, Aug. 22, 1950, at 5. Indeed, it is arguable that even a refugee whose prolonged illegal presence is the result of fear or trauma might still qualify for the benefit of Art. 31. “There is force in the applicant’s argument that to employ . . . the bright line of safe entry as the point at which a refugee must be sufficiently composed and confident to trust public officials, when in terms of the Convention his qualification for that status derives from the reverse experience, could work injustice”: Ghuman v. Registrar of the Auckland District Court, [2003] NZAR Lexis 49 (NZ HC, Dec. 16, 2003), at [63]. It is important not to conflate ineligibility for exemption from penalties under Art. 31 with ineligibility for refugee status. For example, the facts of a case that came before the Canadian Federal Court – involving a Coptic Christian from Egypt who had been in Canada lawfully for more than six months, and who filed her asylum claim only three weeks before her lawful status ended – suggest an instance in which Art. 31 protection would not be owed because the applicant did not come forward “without delay.” The view

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delay” amounts to a reasonableness requirement.990 The flexible language of the Convention requires a non-mechanistic assessment of bona fides, with the standard necessarily varying from person to person.991 A more generous interpretation is appropriate in the case of, for example, refugees who face linguistic or cultural barriers, who are uncertain about how best to seek protection, or who are traumatized or otherwise not in a position immediately to make their need for protection known.992 As noted by the Supreme Court of Norway, The protection objective behind Article 31 . . . indicates [the need for] a more concrete assessment of what constitutes “without delay” in each individual case. In this assessment, one must take into account not only the refugee’s circumstances, objectively speaking, but also how the refugee,

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of the Court that refugee status might be denied altogether because these facts suggested an absence of “subjective fear” is, however, legally unwarranted: Mary George v. Minister of Citizenship and Immigration, [2014] FC 535 (Can. FC, June 3, 2014), at [10]. On the reasons that “subjective fear” is not properly understood to be a requirement of refugee status, see Hathaway and Foster, Refugee Status, at 91–105. While the Belgian representative initially suggested that this clause contemplated “an unauthorized stay of three or four days,” even he subsequently agreed that only situations of “prolonged illegal presence” were clearly excluded: Statements of Mr. Herment of Belgium, UN Doc. E/AC.32/SR.40, Aug. 22, 1950, at 4–6. The American delegate was the only representative who took the view that the “without delay” requirement imposes a duty to seek protection “immediately on entry into a country”: Statement of Mr. Henkin, ibid. at 7. Thus, “[i]t is easy to imagine scenarios where refugees have lived for considerable periods in a country without approaching the authorities, genuinely unaware that international protection was available to them. In such circumstances, a purposive interpretation would still afford such refugees the protection of Article 31, interpreting ‘without delay’ in light of their individual circumstances”: Costello, “Article 31,” at 28. Indeed, the UK Supreme Court invoked the importance of “a purposive interpretation consistent with [its] humanitarian aims” to suggest that a Somali applicant who had spent a year in Yemen and then passed through two European cities before arriving to claim asylum in Britain might still claim the benefit of Art. 31: SXH v. Crown Prosecution Service, [2017] UKSC 30 (UK SC, Apr. 11, 2017), at [7]. “No strict time limit can be applied to the concept ‘coming directly’ and each case must be judged on its merits. Similarly, given the special situation of asylum-seekers, in particular the effects of trauma, language problems, lack of information, previous experiences which often result in a suspicion of those in authority, feelings of insecurity, and the fact that these and other circumstances may vary enormously from one asylum-seeker to another, there is no time limit which can be mechanically applied or associated with the expression ‘without delay’”: UNHCR, “Revised Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers,” Feb. 1999 (UNHCR, “Detention Guidelines 1999”), at [4]. Regrettably this issue is not addressed in the latest iteration of the Detention Guidelines, though the duty to give attention to the “special circumstances and needs of particular asylum seekers,” e.g. on the basis of gender, sexuality, age, and disability, is noted: UNHCR, “Guidelines on Applicable Criteria and Standards relating to the Detention of Asylum Seekers” (2012) (UNHCR, “Detention Guidelines 2012”).

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given his or her capacities and background, had reason to perceive such circumstances.993

Most fundamentally, because the objective of this clause is simply to ensure that asylum-seekers regularize their status “as soon as possible,”994 it cannot be relied upon to impose arbitrary deadlines for an asylum claim to be lodged.995 The firm five-day deadlines to seek refugee status set by Ecuador996 and Turkey997 are therefore not in compliance with Art. 31; indeed, the Turkish rule was found to breach the European Convention on Human Rights, precisely because of its inflexibility.998 While the extremely short deadline set by these states made their practices particularly problematic,999 the more general rule is that any deadline for reporting must be administered with flexibility to take account of relevant claimant-specific circumstances.1000 As such, even a less exigent deadline within which to seek protection without being subjected to migration penalties – for example, Mexico’s fifteen-day rule1001 or even Spain’s one-month deadline1002 – will also breach Art. 31 if mechanistically applied.

4.2.1.2 Breach Necessitated by Urgency of Search for Protection The second and more complex requirement to benefit from Art. 31 is that the refugee must be “coming directly from a territory where their life or freedom 993

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A v. Public Prosecuting Authority, Case No. 2014/220, HR-2014-01323-A (Nor. SC, June 24, 2014), at [14]. Secretary-General, “Memorandum,” at 46. It has been suggested that there is simply a duty to present onself “within a short time of [one’s] arrival” in order to benefit from Art. 31 protection: see R v. Uxbridge Magistrates Court, ex parte Adimi, [1999] 4 All ER 520 (Eng. HC, July 29, 1999), at 529. This test has specifically been determined not to require a refugee to claim protection “while clearing immigration controls at the port of entry”: UK Soc. Sec. Comm. Dec. No. CIS/4439/1998 (Nov. 25, 1999). See UNHCR Executive Committee Conclusion No. 15, “Refugees Without an Asylum Country” (1979), at [(i)]: “While asylum-seekers may be required to submit their asylum request within a certain time limit, failure to do so, or the non-fulfilment of other formal requirements, should not lead to an asylum request being excluded from consideration.” See text at note 853. 997 See text at note 853. “In the Court’s opinion, the automatic and mechanical application of such a short timelimit for submitting an asylum application must be considered at variance with the protection of the fundamental values embodied in Article 3 of the [European] Convention”: Jabari v. Turkey, [2000] ECHR 368 (ECtHR, July 11, 2000), at [40]. Finland’s administrative decision that a delay of just one day (See text at note 854) is not “without delay” adopted a clearly unreasonably short deadline. As UNHCR has observed, “[g]iven . . . the effects of trauma, language problems, lack of information, previous experiences which often result in a suspicion of those in authority, feelings of insecurity, and the fact that these and other circumstances may vary enormously from one asylum-seeker to another, there is no time limit which can be mechanically applied or associated with the expression ‘without delay’”: UNHCR, “Response to request for UNHCR’s guidance on the interpretation of Article 31 of the 1951 Convention Relating to the Status of Refugees,” Mar. 11, 2014, at [13]. See text at note 851. 1002 See text at note 852.

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was threatened in the sense of Article 1” and “show good cause for their illegal entry or presence.” While these clauses are traditionally analyzed separately,1003 the two notions are actually deeply intertwined and hence most sensibly treated as setting a single requirement: that exemption from penalties, including from detention, is a function of whether the refugee is reasonably seen to have breached ordinary migration rules because of the urgency of flight. Viewed through this prism, the risk of technical error in interpretation of Art. 31 is minimized. As this formulation suggests, the core of the requirement is the refugee’s ability to “show good cause for their illegal entry or presence.” The underlying premise of the “good cause” requirement is that exemption from immigration penalties should be reserved for refugees whose illegal entry is the result of some form of compulsion.1004 The drafters expected refugees to present evidence that “owing to outside pressure, [they] had been obliged to enter or re-enter particular countries illegally.”1005 Clearly, “[t]he fact that a refugee was fleeing from persecution was [in and of itself] good cause,”1006 as refugees seeking to escape the risk of persecution cannot be expected to satisfy 1003

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Costello, for example, speaks of “three qualifying conditions . . . directness, promptness, and good cause”: Costello, “Article 31,” at 10. Noll takes a more literal tack, suggesting that “[t]he personal scope of Art. 31, para. 1 is determined by five criteria . . . (1) a refugee . . . (2) coming directly . . . (3) enters or is present . . . (4) presents . . . without delay and (5) shows good cause”: Noll, “Article 31,” at 1253. While the requirement to show “good cause” was at one stage omitted from the draft of Art. 31 (see UN Doc. E/AC.32/L.26, Feb. 2, 1950), its importance was repeatedly asserted by delegates. See Statement of the Chairman, Mr. Larsen of Denmark, UN Doc. E/AC.32/ SR.22, Feb. 2, 1950, at 25; Statement of Mr. Weis of the IRO, UN Doc. E/AC.32/SR.24, Feb. 3, 1950, at 7 (proposing the language “and producing valid reasons to justify their illegal entry”); and Statement of Mr. Winter of Canada, UN Doc. E/AC.32/SR.40, Aug. 22, 1950, at 5. The representative of the Netherlands suggested that the “good cause” language would, for example, deny exemption from penalization to a refugee who entered without authorization to visit a sick relative: Statement of Baron van Boetzelaer of the Netherlands, UN Doc. A/CONF.2/SR.14, July 10, 1951, at 8. Statement of Mr. Juvigny of France, UN Doc. E/AC.32/SR.40, Aug. 22, 1950, at 6. Statement of Mr. Hoare of the United Kingdom, UN Doc. A/CONF.2/SR.14, July 10, 1951, at 7. See also Statement of Mr. van Heuven Goedhart of UNHCR, ibid. at 5. UNHCR agrees, opining that “[h]aving a well-founded fear of persecution is recognized in itself as ‘good cause’ for illegal entry”: UNHCR, “Letter to legal counsel re guidance on the interpretation of article 31 of the 1951 Convention relating to the Status of Refugees,” Mar. 11, 2014, at [16]. Noll worries that this approach renders the “good cause” requirement mere surplusage (Noll, “Article 31,” at 1260; analysis adopted in Costello, “Article 31,” at 30). To avoid this concern it is appropriate that the presumption be limited to refugees in flight from risk, thus allowing the clause to play a meaningful role by excluding pure secondary movers. In any event, Noll concedes that it would be enough to show “that authorized entry or presence is . . . impossible to attain, e.g. due to visa requirements” (Noll, “Article 31,” at 1261) – an essentially universal circumstance since virtually no country offers visas for refugees to travel and make an asylum claim.

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immigration formalities before fleeing to safety.1007 Indeed, much the same sense of urgency and precariousness may drive refugees to disguise their true intentions until safely inside the asylum country. The Swiss Federal Court has thus sensibly determined that fear of summary rejection at the Swiss border also constituted good cause for illegal entry into that country, entitling the asylum-seeker to benefit from Art. 31.1008 Why then add the companion requirement that the refugee be “coming directly” from a place in which there is a risk of being persecuted? The intended “coming directly” inquiry is actually a fairly straightforward application of the goals animating the more general “good cause” requirement, not a distinct or different requirement. The specific concern motivating this additional language was that refugees should not be exempted from penalties if they elected to move onward simply because they had been refused the right to settle in their original country of refuge.1009 Delegates agreed that it made sense to exempt 1007

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“Nor is it said that they had committed unlawful activities in other countries, even though they had arrived in this country concealed in the back of a lorry, a course understandable in view of the conditions and the risk of persecution under which some would-be asylumseekers lived”: R (Saadi) v. Secretary of State for the Home Department, [2002] UKHL 41 (UK HL, Oct. 31, 2002), at [21]. Dec. 6S.737/1998/bue, ASYL 99/2, at 21 (Sw. FAC, Mar. 17, 1999). A similar understanding was more recently adopted in Norway, the Supreme Court there finding that because “not all countries treat asylum seekers stopped with false documents at passport control the same way Norway does, . . . the fear of not getting through passport control is likely legitimate”: A v. Public Prosecuting Authority, Case No. 2014/220, HR-2014-01323-A (Nor. SC, June 24, 2014), at [22]. A more rigid view was, however, taken by the German Federal Constitutional Court in Dec. No. 2 BvR 450/11, Dec. 8, 2014 (suggesting a duty on refugees to present themselves at the time of clearing immigration controls) and by the Supreme Court of New Zealand in Zanzoul v. R, [2008] NZSC 44, at [11] (NZ SC, June 10, 2008) (indicating that use of a false passport upon arrival in New Zealand was not necessary). These perspectives, while no doubt objectively sound, nonetheless fail to take account of the reasonable apprehensions of non-expert asylum-seekers who may well have reason to distrust authorities and not understand that they are protected from immediate turnback when presenting a false passport: see note 1000. Statement of Mr. van Heuven Goedhart of UNHCR, UN Doc. A.CONF.2/SR.14, July 10, 1951, at 4–5. France advocated a more stringent limitation. “[W]hile his delegation felt that it was right to exempt from any penalties imposed for illegal crossing of the frontier refugees coming directly from their countries of origin, it did not see any justification for granting them similar exemption in respect of their subsequent movements. The initial exemption was the direct corollary of the right of asylum, but once a refugee had found asylum, article [31] in its present form would allow him to move freely from one country to another without having to comply with frontier formalities. Actually, however, there was no major reason why a refugee should not comply with those formalities”: Statement of Mr. Colemar of France, ibid. Its approach (UN Doc. A/CONF.2/62) was softened to include not just refugees coming from their country of origin, but also those needing to flee the first receiving country: Statement of Mr. Del Drago of Italy, UN Doc. A/CONF.2/ SR.13, July 10, 1951, at 13; Statement of Mr. von Trutzschler of the Federal Republic of Germany, UN Doc. A/CONF.2/SR.14, July 10, 1951, at 7.

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not only those coming directly from their country of origin but also those refugees who had been able “to find asylum even temporarily”1010 in another country where they had spent time. The logic was that a refugee who has been denied temporary asylum is no less at risk than a refugee coming from the country of origin1011 and therefore cannot be expected to comply with immigration formalities before relocating. But if a refugee had been granted at least temporary asylum (and was therefore not imminently at risk) there was no good reason to exempt him from immigration penalties,1012 assuming of course that the penalties did not result in refoulement directly or indirectly to the country in which persecution was feared. Importantly, then, the only intended retrenchment from the general goal of exempting refugees from penalties was with regard to those who had “found asylum”1013 – that is, those who had chosen to give up a secure (even if not permanent) home1014 – not those who had failed to seek asylum.1015 Indeed, 1010 1011

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UN Doc. A/CONF.2/SR.14, July 10, 1951, at 13. The representative of Greece went farther, suggesting “that there could be no doubt that the case where a country prescribed temporary residence for a refugee and thus deprived him of his freedom of residence did constitute a case where no penalty could be imposed on him by another country into whose territory he had illegally entered or in which he was illegally present”: Statement of Mr. Philon of Greece, UN Doc. A/CONF.2/SR.14, July 10, 1951, at 12. “To admit without any reservation that a refugee who had settled temporarily in a receiving country was free to enter another, would be to grant him a right of immigration which might be exercised for reasons of mere personal convenience. It was normal in such cases that he should apply for a visa to the authorities of the country in question”: Statement of Mr. Colemar of France, ibid. at 10. “In order to illustrate his own point, [the French representative] would give a concrete example – that of a refugee who, having found asylum in France, tried to make his way unlawfully into Belgium. It was obviously impossible for the Belgian government to acquiesce in that illegal entry, since the life and liberty of the refugee would be in no way in danger at the time”: Statement of Mr. Colemar of France, UN Doc. A/CONF.2/SR.13, July 10, 1951, at 14–15. The language was subsequently amended to make it clear that the inquiry into the availability of asylum was forward-looking, not retrospective. Specifically, the French proposed wording “having been unable to find” temporary asylum was replaced by a formulation in the present tense, “being unable to find asylum even temporarily [emphasis added]”: Statement of Mr. Herment of Belgium, UN Doc. A/ CONF.2/SR.14, July 10, 1951, at 13. “[T]here is strong support for the view that all refugees are to be regarded as ‘coming directly’ except those who have found secure asylum elsewhere”: Costello, “Article 31,” at 18; “The delegates were particularly preoccupied with secondary movements of refugees once they reached safety”: Noll, “Article 31,” at 1249. On the other hand, the Irish Court of Appeal determined that “a sojourn of eighteen months (such as occurred in the present case) in another safe country such as the United Kingdom is an entirely different matter”: MIF v. International Protection Appeals Tribunal, [2018] IECA 36 (Ir. CA, Feb. 19, 2018), at [26]. The concern expressed by Lord Rodger (dissenting) in Asfaw – that an Ethiopian refugee who transited at Heathrow Airport en route to the United States to claim asylum might not be able to show good cause for illegal entry into the US for failure to seek asylum in

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the British representative successfully argued that the reference to “being unable to find asylum even temporarily” should be eliminated,1016 since it might be taken to mean that “a refugee would have to establish not merely his refugee status, but also that he was unable to find asylum in any country other than the one in which he applied to settle. Thus the onus of proving a negative would be placed on the refugee himself.”1017 Eliminating this language would “relieve the refugee of the onus of proving that he was unable to enter any other country where he would not be persecuted. The refugee would still have to show good cause to justify his illegal entry or presence.”1018 The language as agreed means that there can be no question of insisting that refugees demonstrate their inability to secure asylum elsewhere as a condition of immunity from immigration penalties.1019

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the United Kingdom – should not in principle arise: R v. Asfaw, [2008] UKHL 31 (UK HL, May 21, 2008), at [112]. Sadly, however, the concern might well arise in practice given the instruction of the US Attorney General to consider denying asylum to refugees who have “passed through any other countries” without “attempt[ing] to seek asylum before coming to the United States” (Matter of AB, Dec. No. 3929, 27 I&N Rep. 316 (US AG, June 11, 2018), at note 12) – an unlawful penalty (since it relegates such refugees to the less generous remedy of withholding of removal). Specifically, the UK argued in favor of language proposed by UNHCR: “The Contracting States shall not impose penalties, on account of his illegal entry or presence, on a refugee who enters or who is present in their territory without authorization, provided he presents himself without delay to the authorities and shows good cause for believing that his illegal entry or presence is due to the fact that his life or freedom would otherwise be threatened”: UN Doc. A/CONF.2/SR.35, July 25, 1951, at 11–12. UN Doc. A/CONF.2/SR.14, July 10, 1951, at 11. Statement of Mr. van Heuven Goedhart of UNHCR, ibid. at 12. According to GrahlMadsen, “the main objective of the ‘good cause’ proviso [is] to prevent . . . the obligation to exempt refugees from penalties [from being] extended to such ‘refugees who wished to change their country of asylum for purely personal reasons.’ However, the requirement to ‘show good cause for their illegal entry or presence’ cannot wholly be ignored. It seems that in view of the wording chosen, a refugee may be obliged to explain – not why he has chosen any particular country – but why his entry or presence was illegal and not regularized beforehand. Thus the requirement to show ‘good cause’ in the present text is closely related to the requirement of presenting oneself without delay”: Grahl-Madsen, Commentary, at 178–179. UNHCR convinced representatives that Art. 31 should not be framed in a way that “would place on refugees the very unfair onus of proving that [they] were unable to find even temporary asylum anywhere outside the country or countries in which [their] life or freedom was threatened. As there were some eighty States in the world, the difficulty of such a task required no emphasis”: Statement of Mr. van Heuven Goedhart of UNHCR, UN Doc. A/CONF.2/SR.35, July 25, 1951, at 10–11. Despite the historical record suggesting that the words “coming directly” are actually surplusage (see text at note 1009 ff.) with the only goal being to exclude secondary movers, a misreading of the drafting history of the Refugee Convention led an American court to precisely the opposite conclusion. The case involved the claims of Afghan mujahideen or “freedom fighters,” who initially fled Afghanistan to Pakistan and India, where they were threatened and attacked by agents of the Afghan government and Pakistani Communists. The Afghans then traveled to the

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Much less was there any intention to allow penalties to be imposed in relation to refugees who had simply passed through another country. In response to Belgian concerns that the “coming directly” language might be inappropriately relied upon to impose penalties against “a refugee who had stayed in another country for a week or a fortnight, and had then been obliged to seek asylum in the territory of the Contracting State in question,”1020 it was agreed that Art. 31 ought not to be relied upon to “exclude from the benefit of [Art. 31] any refugee who had managed to find a few days’ asylum in any country through which he had passed.”1021 Courts interpreting this language have thus generally been appropriately disinclined to allow the penalization of refugees who spent limited amounts of time in a safe country before arriving to seek asylum.1022 It follows that the practice of deeming refugees who pass through a “safe country” without seeking asylum there not to have “come directly”1023 is unjustified. Yet another unfortunate interpretive challenge arises from the phrase read in its totality – “coming directly from a territory where their life or freedom was

1020 1021 1022

1023

United States; some came directly from India and Pakistan, others traveled via England, Holland, and Romania. Rather than inquiring into the reasons that prompted the asylumseekers to continue onward to the United States, and indeed with no concern for the purely transitory presence of the Afghans in countries where they were not clearly at risk, the court asserted that “petitioners may not invoke Article 31 of the Protocol because it applies only to ‘refugees who come directly from a territory where their life or freedom was threatened.’ In this case, all petitioners came to the United States from various countries. Not one came directly from Afghanistan . . . The debates at the United Nations General Assembly Conference on the Status of Refugees and Stateless Persons that drafted the Convention indicate that exemption from the consequences of an illegal entry should be considered only in the case of the first receiving country”: Singh v. Nelson, 623 F. Supp. 545 (US DCNY, Dec. 12, 1985), at 42. See also early Austrian jurisprudence ruling that Art. 31 was inapplicable to any refugee who has even transited through another country en route to Austria: Dec. No. VwGH 91/19/0187 (Au. HC, Nov. 25, 1991). Statement of Mr. Herment of Belgium, UN Doc. A/CONF.2/SR.14, July 10, 1951, at 12. Statement of Mr. Herment of Belgium, ibid. at 12. See e.g. R v. Asfaw, [2008] UKHL 31 (UK HL, May 21, 2008); R v. Navabi, [2005] EWCA Crim 2865 (Eng. CA, Nov. 11, 2005), at [4]; Dec. No. 2 BvR 450/11 (Ger. FCC, Dec. 8, 2014); Dec. No. KKO:2013:21 (Fin. SC, Apr. 5, 2013). The Swiss Federal Administrative Court has held, for example, that an Afghan asylum-seeker who spent one month in Pakistan and two days in Italy before arriving in Switzerland had nonetheless come “directly” to Switzerland: Dec. 6S.737/1998/bue, ASYL 99/2 (Sw. FAC, Mar. 17, 1999). In contrast, Art. 31 does not generally apply where the stays en route are prolonged. Absent evidence of risk in the intermediate countries, there is no reason to question the decision of the New Zealand High Court that a refugee from Ghana was not “coming directly” to New Zealand because she had spent two weeks in Swaziland, and ten months in South Africa: Abu v. Superintendent of Mount Eden Women’s Prison, 199 NZAR Lexis 58 (NZ HC, Dec. 24, 1999). More generally, so-called “safe country” rules pose a real risk of refoulement: see Chapter 4.1.2 at note 295 ff.

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threatened in the sense of Article 1.” Notwithstanding the overarching goal of denying exemption from penalization only to those refugees who move onward by choice rather than because of compulsion,1024 the incorporation by reference in this phrase of Art. 1’s refugee definition has at times been thought to imply, first, that the only relevant risk is a risk in the country of origin; second, that the risk must be coupled with a Convention nexus ground to suffice; and/or third, that only an extreme form of compulsion – that is, the risk of being persecuted – qualifies a refugee for exemption from penalties for unlawful entry or presence. On the first concern, the drafters specifically rejected the view that immunity from penalties should be limited to refugees coming directly “from their country of origin.”1025 A refugee who confronts a serious risk in a country of asylum would, like a refugee coming from his or her state of origin, not be able safely to delay departure until immigration formalities had been completed. Just as in the case of refugees coming directly from their country of origin, the need to escape logically trumps the usual duty to respect immigration laws. The President of the Conference of Plenipotentiaries therefore suggested that the Convention should exempt from penalties any refugee “coming direct[ly] from a territory where his life or freedom was threatened [emphasis added].”1026 No state opposed the extension of Art. 31 protection to refugees in secondary flight from serious risks.1027 On reflection, however, the French delegate expressed concern that the precise language proposed by the President (“coming 1024 1025

1026

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See text at note 1004. “The term ‘coming directly’ refers, of course, to persons who have come directly from their country of origin or a country where their life or freedom was threatened, but also to persons who have been in an intermediary country for a short time without having received asylum there”: Weis, Travaux, at 302. Statement of the President, Mr. Larsen of Denmark, UN Doc. A/CONF.2/SR.13, July 10, 1951, at 15. This approach was initially embraced as a friendly amendment by France: Statement of Mr. Colemar of France, ibid. See also Statement of Mr. van Heuven Goedhart of UNHCR, UN Doc. A/CONF.2/SR.14, July 10, 1951, at 5. No special significance should be attached to the reference to refugees coming from a “territory” (as opposed to a “country”) in which they face a risk of being persecuted. The choice of language was not explained, though it is likely that it was simply intended to track the formulation of Art. 33’s duty of non-refoulement. UNHCR had earlier suggested that the language of Art. 31 should mirror the duty of non-refoulement, which refers to “territories” where life or freedom would be threatened: Statement of Mr. van Heuven Goedhart of UNHCR, UN Doc. A/CONF.2/SR.14, July 10, 1951, at 5. “In the course of drafting the words ‘country of origin,’ ‘territories where their life or freedom was threatened’ and ‘country in which he is persecuted’ were used interchangeably”: Weis, Travaux, at 303. “[H]e thought there had been no objection to the High Commissioner’s interpretation, namely, that the refugee’s illegal entry or presence must be proved to be due to the fact that his life or freedom would otherwise have been threatened. He (the President) considered that the French point of view should be acceptable to the other delegations, and that there need be no difference of opinion on that question”: Statement of the President, Mr. Larsen of Denmark, UN Doc. A/CONF.2/SR.35, July 25, 1951, at 13. No

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direct[ly] from a country where his life or freedom was threatened”) might undermine the finite obligation of states originally secured by the Convention’s January 1, 1951 cut-off date.1028 While a refugee whose initial flight was due to post-1951 causes would not be entitled to protection under the then-prevailing temporal limit,1029 there would be no way to predict how many refugees would need to move due to risks in asylum states that might arise only after 1951.1030 The goal of the ensuing discussion at the Conference of Plenipotentiaries was therefore to find a means to grant exemption from penalization to refugees in secondary flight that would respect the Convention’s temporal limitation.1031 The French representative felt that this goal could be achieved by “wording, which would be in accordance with Article 1.”1032 His favored formulation, “coming directly from a territory in which his life or freedom would be threatened within the meaning of article 1, paragraph A, of this Convention”1033 derived from a determination to limit Art. 31 protection to persons in flight from a pre-1951 phenomenon.1034 The text as finally adopted

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special significance should be attributed to the language requiring a threat to “life or freedom,” instead of to a “well-founded fear of being persecuted.” This dateline has been prospectively eliminated by the adoption of the 1967 Protocol relating to the Status of Refugees: see Chapter 1.5.1. The French concern therefore has no contemporary relevance for the overwhelming majority of state parties to the Convention, which are also parties to the Protocol. See Chapter 1.4.3. “As he understood the present text, a person who was the victim of events occurring in a neighbouring country after [January 1, 1951] would not come within the terms of the Convention if he crossed the border into France, whereas those who had already been authorized to take refuge in the neighbouring country as a result of events occurring before 1 January 1951 would be able to claim the benefit of the present provision. Thus there might easily be an influx of refugees who had been authorized to stay in a neighbouring country, but who, because their lives were threatened as a result of events occurring in that country after 1 January 1951, would be entitled to avail themselves of the clause to move into France. Thus the ceiling on commitments provided by the date of 1 January 1951 would be largely nullified [emphasis added]”: Statement of Mr. Rochefort of France, UN Doc. A/CONF.2/SR.35, July 25, 1951, at 14. See Chapter 1.4.3. Statement of Mr. Rochefort of France, UN Doc. A/CONF.2/SR.35, July 25, 1951, at 15–16. Ibid. at 17. The British representative “felt that the time factor was already covered by the definition of the term ‘refugee’ in article 1. Article 31 could not therefore relate to any refugee fleeing from a country as a result of events occurring after 1 January, 1951”: Statement of Mr. Hoare of the United Kingdom, ibid. at 17. The French representative insisted on the need for an additional qualification in Art. 31 “since a refugee might be a refugee under the terms of the Statute of the High Commissioner’s Office [and also that] [t]he definition in article 1 did not cover conditions of admission, but only the rights to be accorded refugees”: Statement of Mr. Rochefort of France, ibid.

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was intended to achieve precisely this goal.1035 But with the Refugee Protocol’s prospective abolition of the January 1, 1951 cut-off date for refugee status,1036 the original basis for inserting the reference to persons whose life or freedom was threatened “in the sense of Article 1” has now been rendered largely moot. Because state parties to the Protocol are required to apply the Convention refugee definition without reference to the temporal limitation,1037 all refugees whose illegal entry or presence is due to risk in an intermediate country of asylum are today entitled to exemption from penalization. This is, of course, a sensible result: if a serious risk emerges in the first country of refuge, then the same considerations of urgency of flight that dictated exemption from migration penalties initially would again apply. A second argument has, however, been advanced that the comments of two delegates to the Conference of Plenipotentiaries suggest that the phrase “in the sense of Article 1” may also restrict access to Art. 31 protection on the grounds that it requires a refugee in secondary flight to show that the risk in the country from which secondary flight originated is on account of “race, religion, nationality, membership of a particular social group, or political opinion.” The suggestion is that Art. 31 protection would therefore not inhere where departure is the result of a generalized risk of being persecuted there.1038 Taken in 1035

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A competing British amendment was withdrawn because “the French representative found it unacceptable”: Statement of Mr. Hoare of the United Kingdom, ibid. at 19. Immediately prior to the 20–0 (2 abstentions) vote to approve the final text, the French representative reiterated that the reason for the reference to Art. 1 of the Convention in the text of Art. 31 was that France, “[a]s a country of second reception . . . could not bind itself to accept refugees from all other European countries of first reception. There had to be some limit, such as that of events occurring before 1 January 1951”: Statement of Mr. Rochefort of France, ibid. at 19. See Chapter 1.5.1. Protocol relating to the Status of Refugees, 606 UNTS 8791 (UNTS 8791), done Jan. 31, 1967, entered into force Oct. 4, 1967 (Refugee Protocol), at Art. I(2). Statements of Mr. Petren of Sweden, UN Doc. A/CONF.2/SR.35, July 25, 1951, at 14–15; and of the President, Mr. Larsen of Denmark, ibid. at 18: “It might also happen, as the Swedish representative had indicated, that a refugee, as defined in article 1, escaped to a second country where his life or liberty was again in danger, but not for the reasons specified in article 1, and that for those irrelevant reasons he fled to a third country. The French representative was, presumably, concerned with the possibility of such cases coming within the terms of Article 31.” In fact, as described above, this was not the concern of the French delegate. Yet the language adopted (“in the sense of Article 1”) is certainly broad enough to encompass this requirement. It was also likely in the minds of the drafters, given this statement by the President just prior to the final vote on the text of Art. 31. The implications of this requirement are, however, unclear. Since the original recognition of refugee status was premised on a nexus to one of the five Convention grounds, it might reasonably be said that “but for” that initial, nexus-defined flight the refugee would not have been compelled to seek secondary protection. That is, he or she is only exposed to the risk of persecution in the asylum country because of an initial flight prompted by race, religion, nationality, membership of a particular social group, or political opinion.

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context, however, the better view is that these interventions at the Conference were intended simply to ensure that Art. 31 protection is limited to persons whose secondary movement is motivated by a need for protection. The Swedish representative, for example, suggested that the reason that the benefit of Art. 31 should be restricted to persons able to show the risk of persecution for an enumerated ground was that “otherwise a refugee who had committed a theft might maintain that his freedom was in danger”1039 – in other words, that Art. 31 ought not to benefit persons whose illegal entry or presence was unconnected to their refugee status. This broader reading is in keeping with the more general concern to limit Art. 31 protection to refugees whose secondary movement was prompted by the need for protection.1040 This leaves the third and most important concern arising from the “in the sense of Article 1” language. What if the risk in the country of first asylum does not rise to the level of a risk of being persecuted, but is nonetheless in breach of the requirements of refugee law and related human rights norms? The textual reference in Art. 31 to exempting persons at risk “in the sense of Article 1” seems to argue for the narrower interpretation that only a risk of persecution, not of some lesser human rights infringement, suffices to secure exemption from penalization.1041 Yet if account is taken of the drafters’ overarching concern to exempt persons from penalties for unlawful entry or presence so long as their onward movement is truly the result of compulsion rather than choice,1042 the case for exempting refugees who enter a second state without authorization after being treated badly in the first asylum country is compelling. The drafters seem to have paid little attention to the narrower reference to “in the sense of Article 1” (i.e. a risk of being persecuted), focusing instead on whether “the life and liberty of the refugee would be . . . in danger at the time.”1043 Indeed, in answering a query from the French delegate, the Chairman of the Conference of Plenipotentiaries drew explicitly on the overarching “show good cause” language to suggest that exemption from penalties

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Statement of Mr. Petren of Sweden, UN Doc. A/CONF.2/SR.35, July 25, 1951, at 14–15. “What France wished to avoid was having to accept any refugee from a neighbouring country who voluntarily decided to move into France, perhaps on the pretext that the neighbouring country would no longer give him permission to reside there [emphasis added]”: Statement of Mr. Rochefort of France, UN Doc. A/CONF.2/SR.35, July 25, 1951, at 11. While the growing acceptance that a risk of “being persecuted” is to be measured by reference to a risk to human rights (see Hathaway and Foster, Refugee Status, at 182–287) attenuates this concern, there remains live debate about, for example, whether the threat must be to a subset of internationally recognized rights, and about whether the correct measure is a risk to the core of a recognized right or a serious infringement of any aspect of the right. See text at note 1004. Statement of Mr. Colemar of France, UN Doc. A/CONF.2/SR.13, July 10, 1951, at 15.

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is appropriate where the refugee faces a serious risk in the country of first asylum, albeit a risk perhaps not rising to the level of persecution: A refugee in a particular country of asylum, for example a Hungarian refugee living in Germany, might, without actually being persecuted, feel obliged to seek refuge in another country; if he then entered Denmark illegally, it was reasonable to expect that the Danish authorities would not inflict penalties on him for such illegal entry, provided he could show good cause for it . . . [R]eliance should be placed on the phrase “show good cause.”1044

This seems quite right. At least insofar as the risk in the first country of refuge bespeaks a failure to honor international protection standards,1045 a refugee thereby compelled to move onward is in no meaningful sense a “secondary mover.”1046 As such, so long as he is able to show that waiting in the first country for permission to enter another asylum state was not reasonable given the nature of the risk and his own circumstances, he should be exempted from penalties arising from his unlawful entry into or presence in the destination state. In line with this understanding, courts have found that refugees arriving from “unstable”1047 situations or from places in which protection was not reliably on offer1048 – not just those who would be “persecuted” there – should be exempted from penalties. It can thus be seen that the “coming directly” gloss is largely an unnecessary distraction, adding no clear value to the core criterion to show “good cause for their illegal entry or presence.” As much is acknowledged by the analytical approach to Art. 31 pioneered by the English Court of Appeal in Adimi – proposing “touchstones” of eligibility based on length of stay in the intermediate 1044

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Statement of the Chairman, Mr. Larsen of Denmark, UN Doc. A/CONF.2/SR.13, July 10, 1951, at 15. “[T]here is strong support for the view that all refugees are to be regarded as ‘coming directly’ except those who have found secure asylum elsewhere”: Costello, “Article 31,” at 18. See also UNHCR, “Response to request for UNHCR’s guidance on the interpretation of Article 31 of the 1951 Convention Relating to the Status of Refugees,” Mar. 11, 2014, at [12]: “The term ‘coming directly’ covers the situation of a person who enters the country in which asylum is sought directly from his/her country of origin, or from another country where his/her protection, safety and security could not be assured.” See text at notes 1009–1012. R v. Mateta, [2013] EWCA Crim 1372 (Eng. CA, July 30, 2013), at [55]. See e.g. Pest Central District Court Dec. No. 7.B.VIII.20.776/2013/34 (Hun. DC, Dec. 3, 2013), at [4.1] (finding the applicant to have come directly despite time spent in Russia and Ukraine where it was held protection was not available); and Dec. No. BO1587, ECLI: NL:HR:2011:BO1587 (Neth. SC, May 24, 2011), at [2.4.3] (finding that a person came directly if coming via a country where protection, safety, and security could not be secured). Even in a rare case in which a refugee was found not to have “come directly” (because he had lived for long periods in Kenya and Ethiopia), it was noted that the same result might not have been reached if there were evidence that his “protection, safety and security” were compromised in those countries: Hassan v. Department of Labour, Dec. No. CRI 2006-485-101 (NZ HC, Apr. 4, 2007), at [39].

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country, reasons for delaying there, and whether or not protection was sought and found there1049 – and thus helpfully directing the mind to the basic question of whether the refugee should be seen as a secondary mover (whose unlawful entry or presence can be penalized) or an individual whose departure from the intermediate country was part of a search for protection (in which case penalization is not justified).1050 Indeed, the Court’s explicit finding that a refugee is entitled to the benefit of Art. 31 despite being forced to endure “even a substantial delay . . . spent trying to acquire the means of travelling on”1051 makes clear that little attention should be given to assessment of the directness or otherwise of the journey itself – an inquiry that can moreover easily be confused with a so-called “safe country” inquiry.1052 The open-ended Adimi test helpfully enables decisionmakers genuinely to grapple with the specificity of the particular refugee’s circumstances in order to decide whether there truly were good reasons to see onward movement as compelled rather than voluntary.1053 A sound application 1049

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R v. Uxbridge Magistrates Court, ex parte Adimi, [1999] 4 All ER 520 (Eng. HC, July 29, 1999), at [18]. See comments of the representatives of the United Kingdom, Switzerland, Australia, and Belgium at UN Doc. A/CONF.2/SR.14, July 10, 1951, at 7–10. Indeed, “the requirement in Article 31(1) . . . that the refugee must show ‘good cause’ for his illegal entry or presence . . . may not present an onerous requirement given that in Adimi the Divisional Court affirmed that this condition has only a limited role to play and it will be satisfied by a genuine refugee showing that he was reasonably travelling on false papers”: R v. Mateta, [2013] EWCA Crim 1372 (Eng. CA, July 30, 2013), at [20]. R v. Uxbridge Magistrates Court, ex parte Adimi, [1999] 4 All ER 520 (Eng. HC, July 29, 1999), at [18]. Not only is this approach without historical support, but it is more fundamentally difficult to reconcile to the presumptive right of refugees to choose for themselves where to ask for protection – a principle built into the structure of the Convention itself: see generally Hathaway and Foster, Refugee Status, at 30–33. Specifically, as Arts. 1(D) and 1(E) exclude individuals from refugee status on the grounds of (very specific) possibility of seeking protection elsewhere, “[t]he expressio unius principle, providing that explicit mention of certain exceptions operates so as to exclude others, forecloses the argument that refugee status is lost because of failure to take up some other (and lesser) opportunity to seek protection”: ibid. at 32–33. The right of refugees ordinarily to choose where to seek protection has been affirmed by the UNHCR’s Executive Committee Conclusion No. 15 which provides that “[t]he intentions of the asylum-seeker as regards the country in which he wishes to request asylum should as far as possible be taken into account. Regard should be had to the concept that asylum should not be refused solely on the ground that it could be sought from another state”: UNHCR Executive Committee Conclusion No. 15, “Refugees Without an Asylum Country” (1979), at [h(iii)]. Costello has reached much the same conclusion, suggesting “that questions of safe third country, and whether it may be permissible to return an asylum-seeker to another country to have her claim assessed, are best kept separate from the question of non-penalization”: Costello, “Article 31,” at 19. Noll’s concern that consideration of the refugee’s intent under the Adimi approach should be rejected as amounting to “a separate test of personal credibility” (Noll, “Article 31,” at 1256) is not convincing: rather, failure to take account of the refugee’s intentions would undermine attentiveness to the refugee’s understanding of factors that go to the required showing of compulsion. More generally, as Costello insists, the Adimi

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of the test thus conforms to Noll’s view that “[l]ogically there would only be one category of refugees whose behaviour could be rationally targeted and altered with penalties. It is the group of refugees who, already having secured lawful presence and international protection as refugees in a transit State, nonetheless violate the law governing entry and stay of another State.”1054 In sum, there are really only two requirements for a refugee to be exempted from detention and other penalties on account of illegal entry or presence. First, the refugee must show good faith by coming forward to authorities and explaining her circumstances within a reasonable time of arrival. And second, the refugee must show good cause for her unlawful entry or presence, the core question being whether her failure to comply with migration rules was because of the urgency of her search for protection. Despite all of the complexity that often characterizes debates about Article 31, the true inquiry is thus actually quite simple. As the Belgian representative to the Conference of Plenipotentiaries put it, The purpose . . . was to exempt refugees from the application of the penalties imposable for the unlawful crossing of a frontier, provided they presented themselves of their own free will to the authorities and explained their case to them.1055

4.2.1.3 Persons or Organizations Assisting Refugees This leaves one final question to be resolved: can Art. 31 be invoked by persons or organizations that assist refugees in flight from serious risk to enter an asylum country without authorization? The importance of such protection was voiced by the Swiss representative to the Ad Hoc Committee: Swiss federal law did not regard any person assisting [a refugee] as liable to punishment, provided his motives were above board. The provision was of some importance for voluntary organizations for aid to refugees. Article [31] did not include any such provision, and he thought the omission should be made good. It was quite possible that in domestic law, assistance to a foreigner crossing a frontier illegally might be regarded as a separate offence punishable even if the refugee was not.1056

There was general agreement that “a refugee organization should not be penalized for having helped a refugee applying to it. That was an obvious humanitarian

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test is contextually sound since “[t]he touchstones are . . . sensitized to the complex flight routes of refugees, under the current conditions whereby refugees’ mobility is often particularly suppressed”: Costello, “Article 31,” at 20. Noll, “Article 31,” at 1256. Statement of Mr. Herment of Belgium, UN Doc. A/CONF.2/SR.13, July 10, 1951, at 14. Statement of Mr. Schurch of Switzerland, UN Doc. E/AC.32/SR.40, Aug. 22, 1950, at 8.

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duty.”1057 Yet no state endorsed the Swiss proposal to amend the Convention to provide for such an exemption. Concern was expressed that any such amendment might encourage organizations actually to organize or promote the illegal entry of refugees (rather than simply to respond to requests for assistance). Indeed, the French representative successfully urged his colleagues to leave states the freedom to penalize “corporate bodies” that might exploit asylum-seekers.1058 The final consensus was that “it would be sufficient to make mention of the problem in the summary record of the meeting, in the hope that Governments would take note of the very liberal outlook embodied in the Swiss federal laws and follow that example.”1059 This discussion confirms that there is no explicit legal obligation to exempt even individuals or organizations with purely humanitarian motives from penalties for assisting refugees to cross frontiers without authorization.1060 As the text of Art. 31 makes clear, the duty of states is simply to avoid the imposition of penalties “on refugees.” Yet because of this same language, immunity must be granted where refugees organize themselves and work collectively to flee persecution. So long as a refugee is seeking to ensure his or her own access to protection, the incidental entry or presence of others arising from the same actions should be viewed simply as that: incidental to the primary and legally protected goal of ensuring that migration control laws do not impede a refugee from accessing protection: [A]rt. 31(1) of the Refugee Convention seeks to provide immunity for genuine refugees who enter illegally in order to seek refuge. For that protection to be effective, the law must recognize that persons often seek refuge in groups and work together to enter a country illegally. To comply with Art. 31(1), a state cannot impose a criminal sanction on refugees solely because they have aided others to enter illegally in their collective flight to safety.1061

Yet even with this important safeguard, the conceptual incongruity of penalizing non-refugee individuals, organizations, or corporations for facilitating 1057

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Statement of Mr. Juvigny of France, ibid. at 9. See also Statements of Mr. Henkin of the United States, Mr. Perez-Perozo of Venezuela, and the Chairman, Mr. Larsen of Denmark, ibid. at 8–9. “But assistance to refugees might go beyond the national territory, and in certain circumstances refugee organizations might literally become organizations for the illegal crossing of frontiers. He wondered whether it would be in the interests of refugees themselves that organizations of this kind, whose activities were likely to come under very much more general laws, should exist inside national territories”: Statement of Mr. Juvigny of France, ibid. at 9. Statement of Mr. Juvigny of France, ibid. at 9. See also Statement of Mr. Henkin of the United States, ibid. at 8; and Statement of the Chairman, Mr. Larsen of Denmark, ibid. at 9. See also Noll, “Article 31,” at 1253, concluding that “the provision does not lend itself to an argument on the unlawfulness of carrier sanctions.” R v. Appulonappa, [2015] 3 SCR 754 (Can. SC, Nov. 27, 2015), at [43].

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precisely the irregular entry that Art. 31 allows is surely self-evident. Recognizing that the drafters’ reluctance to amend the text of Art. 31 stemmed from concern to avoid the exploitation of refugees, asylum countries should thus be slow to impose immigration-related penalties on innocent agents of entry.1062 As the Supreme Court of Canada has suggested, the third parties most sensibly refused immunity from penalties are those “who assist in obtaining illegal entry for financial or other material benefit.”1063 The Canadian Supreme Court’s views seem largely to align with Canadian government practice to restrict prosecution to only those engaged in commercial operations,1064 the much broader scope of legislative authority notwithstanding.1065 The European Union has gone even farther beyond the strict requirements of Art. 31, calling on member states not to penalize even commercial carriers transporting refugees.1066 But because there is sadly no legal duty to exempt non-refugees from penalization, Sweden’s flat-out refusal even to attempt to align its policy toward those bringing Syrian refugees to its territory with the EU recommendation1067 is not in breach of Art. 31. Nor is Australia’s decision to impose sanctions on carriers whether or not refugee 1062

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The English Court of Appeal found that rules which imposed a mandatory £2,000 fine on truck drivers and others for each unauthorized entrant brought to the United Kingdom by them as the result of either intent or negligence were in breach of the requirements of the European Convention on Human Rights. “[E]ven assuming, as I do, that the scheme is directed towards punishing carriers for some fault, it cannot to my mind be right to impose so high a fixed penalty without possibility of mitigation. The hallowed principle that the punishment must fit the crime is irreconcilable with the notion of a substantial fixed penalty. It is essentially, therefore, on this account rather than because of the reversed burden of proof that I would regard the scheme as incompatible with Article 6. What in particular it offends is the carrier’s right to have his penalty determined by an independent tribunal. To my mind there surely is such a right . . . if . . . contrary to my belief, the scale and inflexibility of the penalty, taken in conjunction with the other features of this scheme, are not such as to deprive the carriers of a fair trial under Article 6, then I would hold them instead to impose an excessive burden on the carriers such as to violate Article 1. Even acknowledging, as I do, the great importance of the social goal which the scheme seeks to promote, there are nevertheless limits to how far the state is entitled to go in imposing obligations of vigilance on drivers (and vicarious liability on employers and hirers) to achieve it and in penalising any breach. Obviously, were the penalty heavier still and the discouragement of carelessness correspondingly greater, the scheme would be yet more effective and the policy objective fulfilled to an even higher degree. There comes a point, however, when what is achieved is achieved only at the cost of basic fairness. The price in Convention terms becomes just too high. That in my judgment is the position here”: Secretary of State for the Home Department v. International Transport Roth GmbH, [2002] 1 CMLR 52 (Eng. CA, Feb. 22, 2002), at [47], [53], per Simon Brown L.J. Interestingly, neither the issue of the impact on refugees nor the possible relevance of Art. 31 of the Refugee Convention seems to have been argued. B010 v. Minister of Citizenship and Immigration, [2015] 3 SCR 704 (Can. SC, Nov. 27, 2015), at [63]. See text at note 927. 1065 See text at note 926. 1066 See text at note 933. See text at note 936.

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claims are found to be genuine1068 or even Italy’s harsh decision to prosecute the Tunisian fishermen who rescued forty-four refugees off the coast of Lampedusa1069 – despite the fact that all of these actions or policies may clearly have a chilling effect on the willingness of third parties to help refugees reach protection. And while the position of states such as Austria and France – providing for the non-penalization of carriers bringing refugees whose claims are subsequently determined to be well founded1070 – might seem comparatively enlightened, that approach gives rise indirectly to risk that carriers are effectively put in the position of serving as inexpert and involuntary adjudicators of refugee status, thus posing a serious risk of refoulement and/or denial of the right to leave one’s own country.1071 Uganda seems to have recognized and responded to this very serious concern, granting an explicit exemption from penalties for transporting someone whom a carrier had “reasonable grounds to believe is genuinely seeking asylum [emphasis added].”1072 While very much beyond the requirements of Art. 31, this approach is an effective means of realizing the hope of the drafters that ordinary migration control rules not stand in the way of refugees accessing protection. To summarize, a refugee may invoke Art. 31 to avoid detention and other penalties for illegal entry or presence so long as he or she voluntarily reports to asylum state authorities within a reasonable time after crossing the frontier. The refugee must show “good cause” for illegal entry or presence, a requirement which will always be met where the breach of migration control laws is the result of flight from a risk of being persecuted, but includes also flight from other serious risks, in particular those that bespeak a violation of refugee or international human rights law. The risk may exist either in the refugee’s country of origin or in a state in which protection was previously offered or afforded. Because the Convention provides protection from penalization only for refugees themselves, those who transport or otherwise assist refugees to enter asylum states without authorization are not protected from amenability to the usual regulatory or criminal penalties for such actions. The drafters assumed, however, that governments would not exercise their authority to penalize those assisting refugees to enter an asylum country absent evidence that they had acted in an exploitative way, or otherwise in bad faith. 1068 1070

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See text at note 931. 1069 See text at note 928. See text at note 935. This approach is advocated in G. Goodwin-Gill, “Article 31 of the 1951 Convention relating to the Status of Refugees: Non-Penalization, Detention, and Protection,” in E. Feller et al. eds., Refugee Protection in International Law 185 (2003) (Goodwin-Gill, “Article 31”), at 219: “As a matter of principle . . . a carrier should not be penalized for bringing in an ‘undocumented’ passenger, where that person is subsequently determined to be in need of international protection [emphasis added].” See Chapter 4.1.1. 1072 See text at note 937.

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4.2.2 Non-penalization The substance of the duty of non-penalization was not extensively discussed by the drafters of the Refugee Convention. The core concern is to exempt refugees in flight from serious harm from sanctions that might ordinarily be imposed1073 for breach of the asylum state’s general migration control laws.1074 The Secretary-General’s background study, for example, observed that while countries commonly require non-citizens to present a valid passport and visa to be legally admitted, a refugee “is rarely in a position to comply with the requirements for legal entry.”1075 Equally apparent is the need of many refugees to cross borders clandestinely in order to access protection.1076 So long as a refugee’s failure to present valid travel documents or to comply with the usual immigration formalities is purely incidental to his or her flight from the risk of serious harm, he or she should not be sanctioned “on a charge of illegal entry.”1077 There is therefore no basis in international law for the practice in Bulgaria1078 and South Africa1079 of subjecting refugees to the usual penalties for illegal entry, nor for Russia’s1080 reliance on its right to arrest illegal 1073

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“The Belgian representative had urged that the penalties mentioned in the article . . . should be confined to judicial penalties only. Surely that was precisely what the article stated. A judicial penalty, at least as interpreted in the code law of the Latin countries, was a penalty pronounced by the courts, not an administrative penalty”: Statement of Mr. Juvigny of France, UN Doc. E/AC.32/SR.40, Aug. 22, 1950, at 5. Because the goal of the French position was to ensure that purely administrative actions were not subject to Art. 31, Grahl-Madsen logically suggests that “[t]he term ‘penalties’ includes imprisonment and fines, meted out as punishment by a judicial or semi-judicial body”: Grahl-Madsen, Commentary, at 169. “The meaning of ‘illegal entry or presence’ has not generally raised any difficult issue of interpretation. The former would include arriving or securing entry through the use of false or falsified documents, the use of other methods of deception, clandestine entry (for example, as a stowaway), and entry into State territory with the assistance of smugglers or traffickers . . . ‘Illegal presence’ would cover unlawful arriving and remaining, for instance, after the elapse of a short, permitted period of stay”: Goodwin-Gill, “Article 31,” at 196. Secretary-General, “Memorandum,” at 46. Reliance on false travel documents “is a commonplace occurrence for those who are fleeing their countries”: R v. Lu Zhu Ai, [2005] EWCA Crim 936 (Eng. CA, Apr. 15, 2005), at [7]. Statement of Mr. Hoare of the United Kingdom, UN Doc. A/CONF.2/SR.13, July 10, 1951, at 14. See also Statements of Mr. Colemar of France, ibid. at 13 (“any penalties imposed for illegal crossing of the frontier”); Mr. Del Drago of Italy, ibid. at 13 (“from the consequences of irregular entry”); Mr. Herment of Belgium, ibid. at 14 (“penalties imposable for the unlawful crossing of a frontier”); the President, Mr. Larsen of Denmark, ibid. at 15 (“penalties . . . for such illegal entry”); and Mr. van Heuven Goedhart of UNHCR, UN Doc. A/CONF.2/SR.35, July 25, 1951, at 12 (“punished for such illegal entry”). See text at note 837 1079 See text at note 838. 1080 See text at note 839.

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entrants to penalize refugees caught up in its more general efforts. It is equally wrong to impose such penalties by subterfuge as Hungary did when penalizing refugees seeking asylum for “damaging border fences.”1081 Similarly, the Canadian Federal Court countenanced a breach of Art. 31 when it determined that there was no need even to assess the protection claim of a Guinean applicant who “obtained fake identity documents to leave his country.”1082 Because the false identity documents with which he arrived in Canada “contained multiple inconsistencies which the applicant had been unable to adequately explain,”1083 the Court determined that “the refugee protection claim could have been rejected at the identification stage, without going any farther.”1084 In taking this position the court not only effectively nullified the value of the protection set by Art. 31(1), but also exposed the claimant to the risk of refoulement.1085 Interestingly, Art. 31 does not require state parties formally to incorporate an exemption for refugees from general immigration penalties. Indeed, there is not even a duty to refrain from launching a prosecution against refugees for breach of immigration laws.1086 As much was arguably evident even in the original formulation of Art. 31, which would have required states not to “apply” penalties against refugees.1087 But the final language, in which the 1081 1082

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See text at note 873. Mamadou Saidou Diallo v. Minister of Citizenship and Immigration, [2014] FC 471 (Can. FC, May 14, 2014), at [6]. Ibid. at [9]. 1084 Ibid. at [17]. Indeed, in Choudhary v. Canada, HRC Comm. No. 1898/2009, UN Doc. CCPR/C/109/D/ 1898/2009, decided Oct. 28, 2013, the UN Human Rights Committee found a breach of Arts. 6 and 7 of the Civil and Political Covenant where the Canadian tribunal rejected applicants for failure to establish their identity. On the shared duty of fact-finding between an applicant and the authorities of the asylum country, see Hathaway and Foster, Refugee Status, at 118–121. See R v. Uxbridge Magistrates Court, ex parte Adimi, [1999] 4 All ER 520 (Eng. HC, July 29, 1999), at 533: “[I]t would seem to me clearly preferable if possible to avoid any prosecution at all rather merely than look to the remedy of a stay once it appears that immunity may arise under art. 31. I do not go so far as to say that the very fact of prosecution must itself be regarded as a penalty under art. 31 . . . But there is not the least doubt that a conviction constitutes a penalty and that art. 31 impunity is not afforded . . . by granting an absolute discharge . . . Provided that the [government] henceforth recognizes the true reach of art. 31 as we are declaring it to be, and puts in place procedures that those entitled to its protection . . . are not prosecuted, at any rate to conviction, . . . I am inclined to conclude that . . . the abuse of due process jurisdiction is able to provide a sufficient safety net for those wrongly prosecuted [emphasis added].” Secretary-General, “Memorandum,” at 45. Costello makes a creative argument in favor of a duty not even to launch a prosecution, suggesting that the mere fact of having to “appear in court” will be “materially disadvantageous” and hence a prohibited penalty (her other concern about the risk of detention is governed by Art. 31(2), not Art. 31(1) for reasons described at Chapter 4.2.4): Costello, “Article 31,” at 34. While plausible as a literal construction of the notion of a penalty, the clear language of Art. 31(1) requiring only that

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only obligation is not to “impose” such penalties,1088 makes this point quite clearly. Indeed, the Belgian representative to the Ad Hoc Committee observed that the immunity of a particular refugee from immigration penalties is a question to be submitted to the courts, implying the ability to lay charges in the first place.1089 It is therefore lawful for a government to charge an asylumseeker with an immigration offense, and even to commence a prosecution,1090 though no conviction may be entered without consideration being given to the applicability of Art. 31(1) as a defense to the charge. If the court determines that the person seeking protection voluntarily reported to asylum state authorities within a reasonable time after crossing the frontier and has shown good cause for her illegal entry or presence (including the use of false documents), Art. 31(1) should be understood to provide a complete defense to the criminal charge.1091 This is true whether or not the individual is finally determined to qualify as a Convention refugee: for reasons elaborated above,1092 it would be both unfair and counterproductive to limit exemption to those persons able accurately to self-assess as meeting the technical requirements of the refugee definition. It follows that the practice in Argentina1093 and Denmark1094 of exempting from conviction only those ultimately found to qualify as refugees is not in line with Art. 31(1). Nor is it the case that Art. 31(1) provides exemption only from the usual sanctions imposed on persons who cross a border without permission.1095 It is true that the original draft of Art. 31 would have supported a narrow construction of the notion of relevant “penalties.” The Secretary-General’s proposed wording called on states not to apply to refugees “[t]he penalties enacted

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a penalty not be “imposed” (in substitution for the earlier language of “applied”) argues against her approach. This shift of language can be traced to a joint proposal of Belgium and the United States, UN Doc. E/AC.32/L.25, Feb. 2, 1950. To “impose” is to “enforce compliance with”: Concise Oxford Dictionary 682 (9th ed., 1995). Statement of Mr. Herment of Belgium, UN Doc. A/CONF.2/SR.14, July 10, 1951, at 10. There is, of course, no international legal duty to launch such a prosecution. The decisions of Canada and South Africa to prohibit prosecution of asylum-seekers for illegal entry or presence (see Costello, “Article 31,” at 35–36) thus represent best practice that goes beyond the strict requirements of Art. 31(1). Seeing Art. 31(1) as a defense to prosecution “strikes a balance between the interests of the State and those of the refugee . . . It follows that a conviction in itself is to be seen as a ‘penalty’ imposed in the sense of Art. 31”: Noll, “Article 31,” at 1264–1265. In considering the circumstances of an Iranian refugee claimant who was charged with possession of a fraudulent French passport, the New Zealand High Court observed “[i]f it is, indeed, the case that he is found to be a true refugee then the probabilities are that the charge will be withdrawn. In any event, his claim to refugee status may well result in a reasonable excuse defence being successful if the case proceeds to trial [emphasis added]”: AHK v. Police, [2002] NZAR 531 (NZ HC, Dec. 11, 2001), at [12]. See Chapter 4.2.1 at note 974 ff. 1093 See text at note 842. See text at note 841. 1095 This position is also taken in Costello, “Article 31,” at 33.

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against foreigners entering the territory of the Contracting Party without permission.”1096 At this stage of the drafting, clearly only one kind of penalty was contemplated, namely general sanctions for having entered the territory unlawfully.1097 Simultaneously on the table at the first session of the Ad Hoc Committee, however, was a joint Belgian–American proposal for Art. 31. It prefaced its requirement that states “shall not impose penalties on [refugees] on account of their illegal entry or residence” with the affirmation of a duty to afford irregularly entering refugees “treatment compatible, from both the moral and material point of view, with human dignity.”1098 While the language that would have ensured that refugees could “lead as normal a life as possible”1099 was dropped because it was deemed “too ambitious,”1100 the Belgian–American approach nonetheless inspired a subtle, but important, reframing of Art. 31. Specifically, the Chairman of the Ad Hoc Committee recommended that “the article should be re-drafted to read: ‘The High Contracting Parties undertake not to impose penalties on refugees who enter or are present in their territory without prior or legal authorization.’”1101 That is, instead of prohibiting the imposition of a particular kind of penalty as had earlier formulations (“the penalties applied against foreigners entering the territory . . . without prior permission”), Art. 31 would instead prohibit simply “penalties” imposed on a particular group of persons, namely “refugees who enter or are present in their territory without prior or legal authorization.” As adopted by the Ad Hoc Committee, the text provided that: The Contracting States shall not impose penalties, on account of his illegal entry or presence, on a refugee.1102

By moving the reference to “illegal entry or presence” into a subordinate clause, the spirit of the Chairman’s proposal was maintained, and the textual meaning of Art. 31 changed from that first proposed by the Secretary-General. Instead of immunizing refugees from a particular kind of penalty, the purport of Art. 31 is that penalties (in general) are prohibited if imposed in a particular context, namely as the result of unlawful 1096 1097 1098 1099

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Secretary-General, “Memorandum,” at 45. See Chapter 4.2 at note 954; and text at note 1074. UN Doc. E/AC.32/L.25, Feb. 2, 1950, at 1. Statement of Mr. Weis of the International Refugee Organization, UN Doc. E/AC.32/ SR.22, Feb. 2, 1950, at 25. Statement of the Chairman, Mr. Chance of Canada, ibid. The general spirit of the Belgian–American amendment was adopted in what became Art. 31(2), expressly addressing the circumstances in which freedom of movement may be lawfully denied to irregularly entering refugees. Statement of the Chairman, Mr. Chance of Canada, ibid. “Report of the Ad Hoc Committee on Statelessness and Related Problems,” UN Doc. E/ 1618, Feb. 17, 1950 (Ad Hoc Committee, “First Session Report”), at 7.

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entry or presence.1103 In the French language formulation as well, the reference to irregular entry or presence defines the reason or context for the imposition of penalties, not their substance.1104 Taking into account the plain meaning1105 of a “penalty” as a “loss, disability, or disadvantage” inflicted for breach of a law or rule,1106 Art. 31 denies governments the right to subject refugees to any detriment for reasons of their unauthorized entry or presence in the asylum country.1107 1103

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Because of this context-specific limitation, Art. 31(1) is not infringed by the Canadian practice of sanctioning indirect arrival by deeming it evidence of absence of “subjective fear” and hence as the basis to refuse refugee protection altogether (see text at note 848) or by the US “firm resettlement” rule that denies protection on the basis of no more than a prior offer of protection even if not subsisting (see text at note 850). Because both these practices focus on the (indirect) mode of arrival rather than the illegality of entry or presence, Art. 31(1) is not engaged. The practices are nonetheless unlawful as they pose the risk of refoulement contrary to Art. 33, amounting as they do to procedures that fail accurately to identify and protect Convention refugees for reasons not foreseen by the Convention: see Chapter 4.1.2 at note 267. “Les Etats contractants n’appliqueront pas de sanctions pénales, du fait de leur entrée ou de leur séjour irréguliers, aux réfugiés qui, arrivant directement du territoire où leur vie ou leur liberté était menacée au sens prévu par l’article premier, entrent ou se trouvent sur leur territoire sans autorisation, sous la réserve qu’ils se présentent sans délai aux autorités et leur exposent des raisons reconnues valables de leur entrée ou présence irrégulières [emphasis added]”: Refugee Convention, at Art. 31(1). Despite the logic of seeing a reasonably broad range of practices resulting in a loss as “penalties” as that term is commonly understood, objection may be taken to such a broad reading on the grounds that it is at odds with the equally authoritative French language text of Art. 31 which provides for immunity only from “sanctions pénales” – thus seeming to restrict the ambit of Art. 31 to penalties understood in the narrower, criminal law sense. To counter this interpretation, Goodwin-Gill rightly points to the fact that the Human Rights Committee has refused to restrict the notion of a “penalty” in the Civil and Political Covenant’s prohibition of ex post facto criminality in such a narrow way – even though this is a provision with a decidedly criminal law orientation. “In seeking the most appropriate interpretation, the deliberations of the Human Rights Committee or scholars relating to the interpretation of the term ‘penalty’ in Article 15(1) of the Civil and Political Covenant can be of assistance”: Goodwin-Gill, “Article 31,” at 194. The propriety of referencing the authoritative interpretation of similar terms under cognate treaties is discussed in Chapters 2.2 at note 88 and 2.3 at note 141. See Vienna Convention on the Law of Treaties, 1155 UNTS 331 (UNTS 18232), done May 23, 1969, entered into force Jan. 27, 1980 (Vienna Convention), at Art. 31(1). Oxford English Dictionary (2nd edn., 1989), Vol. XIII, at 461. A broad reading of the notion of a “penalty” in Art. 31 is moreover consistent with the approach of the UN Human Rights Committee, which has determined that “[w]hether the word ‘penalty’ . . . should be interpreted narrowly or widely, and whether it applies to different kinds of penalties, ‘criminal’ and ‘administrative,’ . . . must depend on other factors. Apart from the text . . . regard must be had, inter alia, to its object and purpose”: Van Duzen v. Canada, HRC Comm. No. 50/1979, UN Doc. CCPR/C/15/D/50/1979, decided Apr. 7, 1982, at [10.2]. The Committee has since affirmed this basic understanding of a “penalty,” noting in particular that the “terms and concepts in the Covenant are independent of any national legal system and that . . . [they have] an autonomous

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For example, the assignment of refugees who arrive irregularly to abbreviated procedures is in essence a penalty inflicted for unlawful entry. When a summary procedure is resorted to not on the grounds of the substantive insufficiency of a claim,1108 but rather to sanction a refugee for his or her mode of entry, such procedures take on a decidedly punitive character. Because the essential purpose of Art. 31 is to insulate refugees from penalties for the act of crossing a border without authorization, a refugee may not lawfully be denied access to the ordinary legal entitlement to a complete refugee status inquiry simply because he or she has used false documents to enter the country, or otherwise entered in contravention of migration control laws. As the Supreme Court of Canada observed, “obstructed or delayed access to the refugee process is a ‘penalty’ within the meaning of Art. 31(1) of the Refugee Convention.”1109 For this reason, US rules that prohibit refugee claimants subject to reinstated removal orders from applying for asylum (limiting them to seeking only bare-bones withholding of removal) are in substance a penalty applied for unlawful entry.1110 Even inadvertent procedural penalties may breach Art. 31, as in the case of the American practice of diverting all refugees and others arriving without proper documents into an “expedited removal” process in which they enjoy significantly reduced due process rights and no appeal rights.1111 Although persons able to show a “credible fear” of being persecuted

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meaning”: Sayadi and Vinck v. Belgium, HRC Comm. No. 1472/2006, UN Doc. CCPR/C/ 94/D/1472/2006, decided Oct 22, 2008, at [10.11]. Taking account of the decision recounted above explicitly to conceive Art. 31 not as a prohibition of a particular kind of penalty, but instead as a prohibition of penalties imposed on a particular group of persons, namely “refugees who enter or are present in their territory without prior or legal authorization,” there is no sound basis to interpret the notion of a “penalty” narrowly. Summary procedures are allowable under international law in the case of persons who, for example, make no arguable claim to refugee status: UNHCR Executive Committee Conclusion No. 30, “The Problem of Manifestly Unfounded or Abusive Applications for Refugee Status or Asylum” (1983), at [d]. B010 v. Canada, [2015] SCC 58 (Can. SC, Nov. 27, 2015), at [57]. The Court moreover quoted with approval the observation of Gallagher and David (The International Law of Migrant Smuggling (2014), at 165) that “an individual cannot be denied refugee status – or, most important, the opportunity to make a claim for such status through fair assessment procedures – solely because of the way in which that person sought or secured entry into the country of destination”: ibid. A dissenting opinion in an unsuccessful challenge to this policy observed that “[b]ecause of the importance of [Art. 31], ‘penalties’ cannot be interpreted as merely the assessment of a fine or imprisonment, but must be applied flexibly to assess whether a state party is denying the full scope of refugee protection to a particular individual on account of his or her illegal entry . . . [B]ecause the majority’s approach categorically prevents an alien in Garcia’s situation from applying for relief that would be available to other aliens, I would consider this administrative roadblock to constitute an impermissible ‘penalty’ that is imposed on Garcia, likely triggering a violation of Article 31”: Victor Garcia Garcia v. Attorney General, 856 F. 3d 27 (US CA1, May 3, 2017), per Stahl J. in dissent. See text at note 843.

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are in principle exempted from the expedited removal system, in practice the procedure to assess exemption from this penalty is subject to myriad deficiencies,1112 resulting in the severe truncation of due process rights. The British rule that imposes criminal penalties for producing invalid travel documents or arriving without passports is similarly problematic. Despite the enactment of an amendment recognizing a defense specifically for refugees,1113 many refugees continue in practice to be convicted of the offense.1114 In the case of both the US expedited removal system and the British penalties for use of false documents Art. 31 is infringed not by specific intention, but rather by virtue of the inadequacy of the procedural mechanisms put in place dependably to exempt refugees from general forms of penalization. In contrast, a breach of Art. 31 may be avoided where, as under European Union rules, the nature of the abbreviated procedure to which persons using false documents are subjected1115 is required to meet all of the usual procedural requirements for the fair assessment of a claim to 1112

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See text at notes 843–846. The tendency of some immigration judges to encourage the withdrawal of asylum claims in exchange for a grant of bare-bones withholding of removal (see text at note 846) is especially worrisome. Problems with this procedure are long standing. At the end of the last century it was reported that “[d]ifficulties were experienced in the process with translation, with access to detainees, and with notification of material developments in the cases. These cases suggest that such problems can impact the substantive determinations made during the credible fear process”: Hastings College of the Law Center for Human Rights and International Justice, “Report on the Second Year of Implementation of Expedited Removal” (1999), at 120. Ironically, if the nature of the penalty imposed by the United States for illegal entry is defined by reference to the result of the denial of due process rights – that is, expulsion – it would follow that the American law does not contravene Art. 31: see Chapter 4.2.3. It would of course be otherwise if the removal led to refoulement: see Chapter 4.1.2. The evolution of the statutory defense is discussed in R v. Abdalla Mohamed, [2010] EWCA Civ 2400 (Eng. CA, Oct. 19, 2010), at [5]–[10]. Despite the enactment of s. 31 of the 1999 Immigration and Asylum Appeals Act as a defense to both crimes of arriving without travel documents and producing invalid documents, a 2012 report found that the “relevant prosecution offices that service airports, ports and immigration offices may have been prosecuting offences of this kind without any regard to Article 31, Refugee Convention or the defences in domestic legislation for several years. Defence lawyers appear to have advised asylum seekers/ refugees in these cases to plead guilty when there were potential defences available to them”: Criminal Cases Review Commission, “Annual Report and Accounts 2011/12,” July 2012, at 15–16. According to one estimate, there were about fifty cases of wrongful convictions of refugees over a ten-year period in two courts alone: A. Aliverti, “Prosecuting Refugees: Wrongful Convictions, Unlawful Practices,” Border Criminologies Blog, Mar. 20, 2017. The disturbing propensity of lawyers to fail even to advise refugee clients of the defense was noted in R v. Koshi Pitshou Mateta, [2013] EWCA Crim 1372 (Eng. CA, July 30, 2013), at [56]; see also R v. Arash Zaredar, [2016] EWCA Crim 877 (Eng. CA, May 19, 2016), at [12]–[16] (reversing a guilty plea of a refugee claimant whose lawyer failed to advise him of the s. 31 defense). EU Procedures Directive, at Art. 31(8)(c)–(d).

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refugee status.1116 Indeed, even under earlier European practice only refugee claimants who continued to insist on the validity of the false documentation employed to secure entry, and who actually based their claims on the false identity, could be assigned to an abbreviated procedure.1117 As such, the penalty was in essence imposed for deliberate and calculated post-arrival deception, not on account of illegal entry or presence.1118 Also prohibited is the punitive denial of economic or social benefits to refugees who arrive without documents or otherwise in contravention of immigration rules.1119 The Canadian rule that penalizes those arriving as part of a smuggled group by delaying access to permanent residence1120 imposes a “loss, disability, or disadvantage” based solely on the fact of an unlawful mode of arrival – thus falling afoul of Art. 31. A British tribunal similarly determined that rules denying the usual refugee income support to those failing to claim asylum at immigration control was a penalty prohibited by Art. 31.1121 Because such a denial is both a serious loss (indeed, on the facts of the British case it was subsequently determined to pose the risk of inhuman and degrading treatment)1122 and imposed by reason of failure to conform to the domestic policy requiring a refugee to regularize his status immediately upon reaching the border, it amounted to a penalty for illegal entry or presence. As the tribunal considering the matter observed, however, the response required to align the rule with Art. 31 was actually quite simple: 1116

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“Member States may prioritise any examination in accordance with the basic principles and guarantees of Chapter II in particular . . . where the application is likely to be wellfounded; [or] where the applicant is vulnerable . . . or is in need of special procedural guarantees, in particular unaccompanied minors”: ibid. at Art. 31(7). Resolution on Manifestly Unfounded Applications for Asylum, Doc. COM(2002) 326, at [9(a)]. Ibid. at [9(b), (f)]. This conclusion is reinforced by the fact that refugees who arrived legally could also be relegated to a truncated procedure if they deliberately made false representations, or otherwise failed to comply with their substantive legal obligations. This position is also adopted in Noll, “Article 31,” at 1264, and Costello, “Article 31,” at 37. See note 899. “In Adimi, it was unsurprisingly held that convictions by criminal courts were penalties under Article 31. [Counsel for the government] did not dispute that civil penalties would also fall within Article 31, but he submitted that a penalty involved a removal of a right that a person previously had. [Counsel for the claimant], on the other hand, submitted that any treatment that was less favourable than that accorded to others and was imposed on account of illegal entry was a penalty within Article 31 unless objectively justifiable on administrative grounds. I prefer [the claimant’s] submission. It seems to me that [the government’s] approach puts form above substance and would enable contracting states to evade Article 31 by the use of one form of words in domestic legislation rather than another”: UK Soc. Sec. Comm. Dec. No. CIS/4439/1998 (Nov. 25, 1999), at [16]. R (Limbuela) v. Secretary of State for the Home Department, [2005] UKHL 66 (UK HL, Nov. 3, 2005).

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eliminate the duty to claim asylum “while clearing immigration control at the port of entry” in favor of a duty to seek protection only “without delay,”1123 thereby allowing the context-sensitive inquiry required by the Refugee Convention to proceed.1124 Under this approach, the refugee is still incentivized to come forward and make his protection claim to authorities, but that incentive operates in a way that takes real account of the imperatives and uncertainties of coerced flight to safety – precisely as the drafters intended.

4.2.3 Expulsion There are two exceptions to the general rule that Art. 31 bars the imposition of penalties on refugees for illegal entry or presence. First, Art. 31 in no way constrains a state’s prerogative to expel an unauthorized refugee from its territory. And second, as discussed below,1125 some restrictions on the freedom of movement of irregularly entering asylum-seekers are allowed pending regularization of status. It may seem ironic that an asylum country which is generally prohibited from imposing penalties on refugees may nonetheless expel them. The drafters were, however, unambiguous on this point,1126 with Colombia going so far as to suggest an amendment that would have formally disavowed any duty to grant territorial asylum to refugees.1127 The Canadian representative successfully argued that no modification of the text was required, since “the consensus of opinion was that the right [to expel refugees who illegally enter a state’s territory] would not be prejudiced by adoption of Article [31].”1128 His suggestion that “he 1123

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“Article 31 does not prohibit the imposition of such a penalty on a refugee who enters the United Kingdom illegally and then fails to present himself to authorities ‘without delay.’ If, therefore, the phrase ‘on his arrival’ in regulation 70(3A)(a) is construed in a manner which gives it the same effect as the phrase ‘without delay’ in Article 31, there is no conflict between the provisions. Construing the former phrase as meaning ‘while clearing immigration control at the port of entry’ is clearly not consistent with the construction of the latter phrase . . . I therefore accept . . . that Article 31 provides an additional reason for not construing ‘on . . . arrival’ . . . narrowly”: UK Soc. Sec. Comm. Dec. No. CIS/4439/ 1998 (Nov. 25, 1999), at [18]. On the facts of the case, it was determined that unless the statutory requirement to seek protection “on his arrival” was construed to include applications made subsequent to the initial clearing of immigration control, the denial of income support benefits on that ground would amount to a penalty imposed for reasons of illegal entry, contrary to Art. 31 of the Refugee Convention. See Chapter 4.2.1 at note 990. 1125 See Chapter 4.2.4. See e.g. Statement of Mr. Fritzler of Austria, UN Doc. A/CONF.2/SR.13, July 10, 1951, at 12; and Statement of Mr. Herment of Belgium, ibid. at 14. UN Doc. A/CONF.2/55. “[T]erritorial asylum could not be regarded as a duty incumbent on states”: Statement of Mr. Giraldo-Jaramillo of Colombia, UN Doc. A/CONF.2/SR.13, July 10, 1951, at 12. Statement of Mr. Chance of Canada, UN Doc. A/CONF.2/SR.13, July 10, 1951, at 12–13.

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would even regard silence on the part of the Conference as endorsement of his point of view”1129 led Colombia to withdraw its amendment.1130 Indeed, the Netherlands representative remarked that “in view of the Canadian representative’s statement . . . that he would interpret the silence of representatives as tacit approval of the Canadian Government’s interpretation of article [31], he would remain silent.”1131 As such, the Irish Court of Appeal’s worry that Art. 31 might interfere with the operation of an orderly system to allocate asylum responsibilities1132 is in fact answered by that article itself: a “first country of arrival” rule cannot be successfully attacked under Art. 31, as the sanction imposed under such systems is precisely expulsion to another non-persecutory state.1133 The potentially devastating impact of the clear decision not to preclude expulsion under Art. 31 is mitigated by two key factors. First, whatever right governments have to expel refugees is constrained by Art. 33’s duty of non-refoulement.1134 Any expulsion of a refugee must therefore not expose the refugee, directly or indirectly, to a risk of being persecuted. Second, in contrast to the situation in 1951, the laws of most state parties today explicitly or implicitly authorize refugees in flight from persecution to enter their territory in search of protection. Refugees arriving to seek protection who have complied with reasonable formalities for the assessment of their claims in such states are “lawfully in” their territory,1135 and accordingly benefit from Art. 32’s constraints on expulsion until and unless fairly determined not to qualify as refugees. As described below,1136 this means that states must base any expulsion of a refugee (or refugee claimant) on national security or public order grounds, and that any decision to expel must be reached on the basis of a fair determination process. Thus, even expulsion practices immune from scrutiny under Art. 31 will often be foreclosed by Art. 32.

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Ibid. at 13. “[I]n the light of the foregoing discussion, the Colombian delegation would not oppose paragraph 1 of Article [31] . . . Since it seemed to be the general feeling of all delegations that the granting of asylum remained a matter for the discretion of individual States, the Colombian delegation, which shared that view, would not press its amendment”: Statement of Mr. Giraldo-Jaramillo of Colombia, ibid. at 14. Statement of Baron van Boetzelaer of the Netherlands, UN Doc. A/CONF.2/SR.14, July 10, 1951, at 8. BMIF v. International Protection Appeals Tribunal, [2018] IECA 36 (Ir. CA, Feb. 19, 2018), at [18]. “The drafters . . . emphasized that expulsion does not fall under the prohibition of penalties in Art. 31, para. 1. Given that the provision is situated in the context of immigration control, this caveat is hardly surprising”: Noll, “Article 31,” at 1263. See Chapter 4.1. 1135 See Chapter 3.1.3 at note 133. 1136 See Chapter 5.1.

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4.2.4 Provisional Detention and Other Restrictions on Freedom of Movement States commonly respond to the illegal entry or presence of refugees by detaining them on the basis of the exception to the duty of non-penalization foreseen by Art. 31(2).1137 This provision reflects the view of the drafters of the Convention that governments required the discretion to detain unauthorized refugees “before they had reached an understanding with the authorities of the recipient countries.”1138 The right to detain refugees arriving unlawfully is, however, subject to two key constraints. First, in accordance with Art. 9 of the Civil and Political Covenant, no person under a state’s jurisdiction, including a refugee, may be subjected to arbitrary arrest or detention.1139 As detailed below,1140 Art. 9 does not prohibit detention, but rather sets substantive and procedural requirements for resort to detention.1141 This guarantee applies wherever a state party exercises 1137

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UNHCR defines detention as “the deprivation of liberty or confinement in a closed place which an asylum-seeker is not permitted to leave at will, including, though not limited to, prisons or purpose-built detention, closed reception or holding centres or facilities”: UNHCR, “Guidelines on the Applicable Criteria and Standards Relating to the Detention of Asylum Seekers and Alternatives to Detention” (2012), at [5]. All detention imposed for unlawful entry or presence is a penalty under Art. 31, and is expressly regulated by para. 2 thereof; see e.g. UNHCR, “Global Roundtable on Alternatives to Detention of Asylum-Seekers, Refugees, Migrants and Stateless Persons: Summary Conclusions,” May 11–12, 2011, at [5] (“[T]he 1951 Convention relating to the Status of Refugees prohibits penalties – such as detention – from being imposed on refugees on account of their illegal entry or presence”). See also Aivazov v. Refugee Status Appeals Authority, [2005] NZAR 740 (NZ HC, Aug. 26, 2005), at [33]. But see Costello, “Article 31,” at 38, arguing that “a distinction must be drawn between punitive and non-punitive detention,” with the former in breach of Art. 31(1). This seems unnecessarily to complicate analysis since detention that is punitive will never satisfy the requirement that detention can be adjudged lawful only if it serves a legitimate purpose: see text at notes 1159–1162. Statement of Mr. Rain of France, UN Doc. E/AC.32/SR.15, Jan. 27, 1950, at 15. As Noll rightly observes, “Article 31, para. 2 both legitimates and curtails States’ right to impose restrictions on the movement of refugees unlawfully present”: Noll, “Article 31,” at 1266. UNHCR, “Guidelines on the Applicable Criteria and Standards Relating to the Detention of Asylum Seekers and Alternatives to Detention” (2012), at [12]. “The right to personal liberty is fundamental and extends to all persons, including . . . asylum seekers, irrespective of citizenship, nationality or migratory status”: UN Working Group on Arbitrary Detention, “Revised Deliberation No. 5 on Deprivation of Liberty of Migrants,” Advance Edited Version, Feb. 7, 2018, at [7]. As such, “[r]efugees entering a state party are immediately entitled to the protection of Art. 9 of the ICCPR, stipulating that everyone has the right to liberty and security of person, and may not be subjected to arbitrary arrest or detention”: “The Michigan Guidelines on Refugee Freedom of Movement,” (2017) 39 Michigan Journal of International Law 1, at [14]. See text at note 1156 ff. “Article 9 recognizes that sometimes deprivation of liberty is justified, for example, in the enforcement of criminal laws. Paragraph 1 requires that deprivation of liberty must not be arbitrary, and must be carried out with respect for the rule of law”: UN Human Rights

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jurisdiction – including, for example, at a state’s border or in a so-called transit zone.1142 The German Federal Court of Justice therefore erred as a matter of international law in treating detention of a refugee in a transit zone1143 as exempt from the legal duty to avoid a deprivation or limitation of liberty.1144 As UNHCR rightly insists, “[r]egardless of the name given to a particular place of detention, the important questions are whether an asylum-seeker is being deprived of his or her liberty de facto and whether this deprivation is lawful according to international law.”1145 Second, the subset of unlawfully arriving refugees meeting the requirements of Art. 31(1) of the Refugee Convention1146 – that is, those who voluntarily

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Committee, “General Comment No. 35: Article 9 (Liberty and Security of Person)” (2014), UN Doc. CCPR/C/GC/35, Dec. 16, 2014, at [10]. Thus, “the human right of personal liberty does not strive toward the ideal of a complete abolition of State measures that deprive liberty; rather, it merely represents a procedural guarantee”: W. Schabas, UN International Covenant on Civil and Political Rights: Nowak’s CCPR Commentary (2019) (Schabas, Nowak’s CCPR Commentary), at 238. See Chapter 3.1.1. 1143 See text at note 898. Dec. No. V ZB 170/16 (Ger. FCJ (Bundesgerichtshof), Mar. 16, 2017), unofficial translation provided by Prof. Nora Markard. UNHCR, “Guidelines on the Applicable Criteria and Standards Relating to the Detention of Asylum Seekers and Alternatives to Detention” (2012), at [7]. Noll, relying on the generality of the “heading” of Art. 31 (“refugees unlawfully in the country of origin”) and the instrumentalist concern to grant as many refugees as possible the benefits of Art. 31(2), suggests that Art. 31(2) applies to a broader class than that defined in Art. 31(1): Noll, “Article 31,” at 1267–1268; analysis adopted in Costello, “Article 31,” at 44. This view aligns with the position first taken by Grahl-Madsen, based on his concern not to delay access to Art. 31(2) while the criteria for entitlement set by Art. 31(1) are assessed: A. GrahlMadsen, The Status of Refugees in International Law (vol. II, 1972) (Grahl-Madsen, Status of Refugees II), at 419–421. The interpretation advanced here, in contrast, is that the provisos stipulated in Art. 31(1) also govern entitlement to freedom from general norms of detention for unauthorized entry, set by Art. 31(2); this view is shared by e.g. Robinson, History, at 151– 154; Weis, Travaux, at 303–304; and UNHCR, “Global Consultations on International Protection: Summary Conclusions on Article 31 of the 1951 Convention” (Nov. 2001), at [5]. The linkage between the class defined by Art. 31(1) and rights set by Art. 31(2) is clear from the literal meaning of the reference to “such refugees” found twice in Art. 31(2), and is affirmed by the last antecedent rule of construction. Indeed, the French text “ces réfugiés,” contrasting with “tels réfugiés” used in Arts. 8 and 19 of the Convention, points to an especially proximate connection. While it is true that Art. 31(2) achieved its final form before the Conference of Plenipotentiaries adopted the references in Art. 31(1) to refugees “coming directly from a territory where their life or freedom was threatened in the sense of Article 1,” it is clear that the Ad Hoc Committee intended a comparable restriction of entitlement to Art. 31(2) rights. Under the joint Belgian–American redrafting of Art. 31 considered by the Ad Hoc Committee, UN Doc. E/AC.32/L.25, Feb. 2, 1950, the relevant text read: “Provided that such refugees present themselves without delay to the authorities and show good cause for their entry, the High Contracting Parties shall not impose penalties on them on account of their illegal entry or presence. The High Contracting Parties nonetheless reserve the right to apply to such refugees necessary police measures regarding their accommodation, residence, and movement in the territory until such time as it is possible to take a decision regarding their legal admission to the country of reception or their admission to another

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report to asylum state authorities within a reasonable time after crossing the frontier and who satisfy authorities that their unlawful entry or presence was necessitated by the urgency of their search for protection1147 – are not only immune from arbitrary detention, but more generally from any other unnecessary “restrictions” on “movement.”1148 Art. 31(2) of the Refugee Convention also requires that such refugees be released from any refugee-specific detention or other restriction on freedom of movement as soon as they are formally admitted to the asylum state’s refugee status verification procedure or otherwise expressly or impliedly authorized to remain at least temporarily in that state’s territory.1149 At this point, the refugee is “lawfully in” the asylum state (though not yet “lawfully staying” there) and thus has the right to move freely and to choose his or her place of residence in the asylum state subject only to regulations that apply to aliens generally.1150

4.2.4.1 Freedom from Arbitrary Detention The basic requirement in Art. 31(2) of the Refugee Convention is that any provisional detention of a refugee be “necessary.”1151 This was unquestionably

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country [emphasis added].” The draft adopted by the Ad Hoc Committee on the same day (UN Doc. E/AC.32/L.26, Feb. 2, 1950) split this formulation into two paragraphs, retaining the reference in the second paragraph (governing restrictions on movement) to “such refugees.” The view that the beneficiary class for all of Art. 31 is the same is not only a function of plain language as confirmed by the drafting history, but moreover advances the instrumentalist goal of the drafters (see Chapter 4.2.1 at note 980) to incentivize refugees to come forward rather than going underground as only these refugees would secure access to the presumption against detention set by Art. 31(2). Nor is it the case that failure to meet the general beneficiary class definition of Art. 31 leaves other refugees unlawfully present without legal rights. To the contrary, as explained below, they remain entitled to the protections of, in particular, Art. 9(1) of the Civil and Political Covenant, pursuant to which states must justify constraints on freedom of movement. See Chapter 4.1.1. 1148 Refugee Convention, at Art. 31(2). See generally Chapter 3.1.3. As described in Chapter 5.2, Art. 12 of the Civil and Political Covenant provides for a cognate right to liberty of movement and freedom to choose one’s residence once an individual is “lawfully within the territory.” It does not, however, require the termination of refugeespecific constraints as such, but rather requires only that constraints on movement and residence be provided by law and be necessary to protect one of five enumerated objectives. The right to full freedom of movement under Art. 12 of the Civil and Political Covenant also inheres with “lawful presence,” providing much the same entitlements as Art. 26 of the Refugee Convention. The main difference is that Art. 31(2) explicitly requires the shift (“and such restrictions shall only be applied until their status is regularized”) whereas the Civil and Political Covenant simply requires the shift to a more comprehensive understanding of liberty of movement and choice of residence once lawful presence (not stay) is established. The meaning of “necessary” restrictions on freedom of movement can be difficult to discern. The traditional approach of UNHCR was to deem only certain reasons for detention to meet the necessity criterion – specifically, to deal with issues of identity, elements of the claim, document destruction, national security, or public order: see UNHCR, “Revised Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers,” Feb.

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an important bulwark against abuse of the power to detain refugees when the Convention was adopted in 1951. But with the subsequent entry into force of Art. 9(1) of the Civil and Political Covenant, much of the core value of Art. 31(2) has been eclipsed by the Covenant’s broad-ranging prohibition of “arbitrary arrest or detention.”1152 Because, as detailed below, detention is only non-arbitrary1153 if shown to be not only “necessary” (in the sense that there is no “less invasive means of achieving the same ends”)1154 but also conceived and implemented to take account of “elements of inappropriateness, injustice, lack of predictability, and due process of law,”1155 it is the higher Covenant standard that must be met. Indeed, Art. 9 of the Covenant not only sets a substantive benchmark for lawful detention, but also requires that the detained person have the ability “to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.”1156 Given the comprehensive nature of Art. 9 of the Covenant, there is no need for a refugee to fall within the beneficiary class of Art. 31 of the Refugee Convention in order to benefit from these most fundamental forms of protection.1157

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1999, at Guideline 3. As described below, the Covenant’s focus on “arbitrariness” may facilitate a more broad-ranging inquiry. Civil and Political Covenant, at Art. 9(1). “[T]he prohibition of arbitrariness was adopted by the [drafters] as an alternative to an exhaustive listing of all permissible cases of deprivation of liberty . . . [T]he majority [of the drafters of the Covenant] stressed that its meaning . . . contained elements of injustice, unpredictability, unreasonableness, capriciousness and disproportionality, as well as the Anglo-American principle of due process of law”: Schabas, Nowak’s CCPR Commentary, at 249. UN Human Rights Committee, “General Comment No. 35: Article 9 (Liberty and Security of Person)” (2014), UN Doc. CCPR/C/GC/35, Dec. 16, 2014, at [18]. Ibid. at [12]. Civil and Political Covenant, at Art. 9(4). As the Human Rights Committee determined in the context of a review of the detention of asylum-seekers, this requirement is only met where the court review “is, in its effects, real and not merely formal.” In particular, the court’s authority “must include the possibility of ordering release, [and not be] limited to [consideration of] mere compliance with domestic law”: A v. Australia, HRC Comm. No. 560/1993, UN Doc. CCPR/C/59/D/560/1993, decided April 30, 1997, at [9.5]. The Human Rights Committee has noted that in the case of Australia’s detention system, “[j]udicial review of detention would have been restricted to an assessment of whether the author was a non-citizen without valid entry documentation, and, by direct operation of the relevant legislation, the relevant courts would not have been able to consider arguments that the individual detention was unlawful in terms of the Covenant. Judicial review of the lawfulness of detention under article 9, paragraph 4, is not limited to mere compliance of the detention with domestic law but must include the possibility to order release if the detention is incompatible with the requirements of the Covenant, in particular those of article 9, paragraph 1”: Baban v. Australia, HRC Comm. No. 1014/ 2001, UN Doc. CCPR/C/78/D/1014/2001, decided Aug. 6, 2003, at [7.2]. “Article 9 guarantees [rights] to everyone. ‘Everyone’ includes, among others . . . aliens, refugees and asylum seekers”: UN Human Rights Committee, “General Comment No. 35: Article 9 (Liberty and Security of Person)” (2014), UN Doc. CCPR/C/GC/35, Dec. 16,

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The UN Human Rights Committee has helpfully summarized the role of Art. 9 of the Covenant as it relates to immigration detention: Detention in the course of proceedings for the control of immigration is not per se arbitrary, but the detention must be justified as reasonable, necessary, and proportionate in the light of the circumstances and reassessed as it extends in time. Asylum seekers who unlawfully enter a State party’s territory may be detained for a brief initial period in order to document their entry, record their claims and determine their identity if it is in doubt. To detain them further while their claims are being resolved would be arbitrary in the absence of particular reasons specific to the individual, such as an individualized likelihood of absconding, a danger of crimes against others or a risk of acts against national security. The decision must consider relevant factors case by case and not be based on a mandatory rule for a broad category; must take into account less invasive means of achieving the same ends, such as reporting obligations, sureties or other conditions to prevent absconding; and must be subject to periodic re-evaluation and judicial review.1158

As this formulation makes clear, the most fundamental constraint set by Art. 9 is that the detention must be in pursuit of a legitimate goal.1159 Because detention “is not an end in itself,”1160 its reasonableness is “limited by the

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2014, at [3]. Indeed, “[t]he fundamental guarantee against arbitrary detention is nonderogable, insofar as even situations covered by article 4 [of the Covenant] cannot justify a deprivation of liberty that is unreasonable or unnecessary under the circumstances”: ibid. at [66]. See “Report of the Special Rapporteur, submitted pursuant to Commission on Human Rights Resolution 2002/62,” UN Doc. E/CN.4/2003/85 (Dec. 30, 2002) for a detailed examination of the various ways in which non-citizens are subjected to detention. UN Human Rights Committee, “General Comment No. 35: Article 9 (Liberty and Security of Person)” (2014), UN Doc. CCPR/C/GC/35, Dec. 16, 2014, at [18]. The Human Rights Committee’s reference to the propriety of detention to prevent a refugee from absconding is, of course, based upon the requirements of the Civil and Political Covenant rather than the Refugee Convention. A similar approach has been taken under the European Convention on Human Rights. In Amuur v. France, [1996] ECHR 25 (ECtHR, June 25, 1996), the European Court of Human Rights determined that “[h]olding aliens in the international zone does indeed involve a restriction upon liberty . . . Such confinement, accompanied by suitable safeguards for the persons concerned, is acceptable only to enable States to prevent unlawful immigration while complying with their international obligations, particularly under the 1951 Geneva Convention relating to the Status of Refugees and the European Convention on Human Rights. States’ legitimate immigration restrictions must not deprive asylum-seekers of the protection afforded by these conventions”: ibid. at [43]. It should be noted, however, that “[t]he Covenant does not provide an enumeration of the permissible reasons for depriving a person of liberty”: UN Human Rights Committee, “General Comment No. 35: Article 9 (Liberty and Security of Person)” (2014), UN Doc. CCPR/C/GC/35, Dec. 16, 2014, at [14]. Plaintiff S4/2014 v. Minister for Immigration and Border Protection, [2014] HCA 34 (Aus. HC, Sept. 11, 2014), at [26].

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purposes for which the detention is being effected.”1161 Some goals are simply illegitimate; in particular, detention may not be resorted to in order to punish refugees for seeking asylum or to deter other refugees from doing so.1162 As concluded by the Supreme Court of Papua New Guinea, treating [refugees] as prisoners irrespective of their circumstances or their status save only as asylum seekers is to offend against their rights and freedoms as guaranteed by the various conventions on human rights at international law.1163

Because refugees have a clear right to arrive and to seek protection, the US District Court for the District of Columbia rightly refused to approve the government’s “no release policy” adopted in response to the arrival of Central American refugees during the summer of 2014:1164 1161

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Ibid. “Detention can only be exceptionally resorted to for a legitimate purpose. Without such a purpose, detention will be considered arbitrary, even if entry was illegal”: UNHCR, “Guidelines on the Applicable Criteria and Standards Relating to the Detention of Asylum Seekers and Alternatives to Detention” (2012), at [21]. Malta’s practice of detaining refugees only if they arrive by air (see text at note 887) does not even present a plausible rational basis for detention. In the context of a pandemic or other health emergency, “[q]uarantine measures may, for example, be a legitimate restriction on the right to freedom of movement provided they meet international human rights standards. By contrast, health concerns do not justify the systematic or arbitrary use of immigration detention”: UNHCR, “Beware Long-Term Damage to Human Rights and Refugee Rights from the Coronavirus Pandemic,” Apr. 22, 2020. “Detention for the purposes of deterrence is impermissible”: Attorney General v. Refugee Council of New Zealand Inc., [2003] 2 NZLR 577 (NZ CA, Apr. 16, 2003), at [101]. UNHCR’s analysis that “detention policies aimed at deterrence are generally unlawful under international human rights law as they are not based on an individual assessment as to the necessity to detain [emphasis added]” thus arguably reaches the right conclusion for the wrong reason: UNHCR, “Guidelines on the Applicable Criteria and Standards Relating to the Detention of Asylum Seekers and Alternatives to Detention” (2012), at [3]. To be preferred is the more straightforward view that “[s]eeking asylum is a universal human right, the exercise of which must not be criminalized”: UN Working Group on Arbitrary Detention, “Revised Deliberation No. 5 on Deprivation of Liberty of Migrants,” Advance Edited Version, Feb. 7, 2018, at [9]. Belden Norman Namah v. Minister for Foreign Affairs and Immigration, Dec. No. SC1497 (PNG SCJ, Apr. 26, 2016), at [69]. As observed by the High Court of Australia, the Namah decision “plainly held that treatment . . . contravened provisions of the Constitution of PNG and was unsupported by PNG law. The Supreme Court might also be interpreted as having held that the forceful bringing of [refugees] to the Manus RPC under the purported authority of PNG law contravened provisions of the Constitution of PNG and was unsupported by PNG law”: Plaintiff S195/2016 v. Minister for Immigration and Border Protection, [2017] HCA 31 (Aus. HC, Aug. 17, 2017), at [25]. The Court of Justice of the European Union has similarly determined that a state “may not hold a person in detention for the sole reason that he has made an application for international protection”: JN v. Staatssecretaris voor Veiligheid en Justitie, Case No. C-601/15 PPU (CJEU, Feb. 15, 2016), at [61]. The use of detention by the United States in order to deter refugees has a long history. In an earlier decision involving the routine detention of Haitians arriving by boat, the Attorney General determined that “there is a concern that the release of aliens . . .

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The Government here . . . claims that, in determining whether an individual claiming asylum should be released, [officials] can consider the effect of release on others not present in the United States. Put another way, it maintains that one particular individual may be civilly detained for the sake of sending a message of deterrence to other Central American individuals who may be considering immigration. This appears out of line with analogous Supreme Court decisions. In discussing civil commitment more broadly, the Court has declared such “general deterrence” justifications impermissible . . . In addition, a general deterrence rationale seems less applicable where . . . neither those being detained nor those being deterred are certain wrongdoers, but rather individuals who may have legitimate claims to asylum in this country.1165

It follows, therefore, that punitive detention designed to deter the arrival of other refugees of the kind exemplified by India’s mass arrest of Sri Lankan refugees,1166 Australia’s indefinite incarceration of refugee claimants,1167 or Hungary’s automatic detention of all persons seeking asylum1168 is simply unlawful.1169 Indeed, even where the reason advanced for detention is facially legitimate, its substantive reasonableness requires that it be based on solid facts rather than simple assertions.1170 As the DC District Court insisted, “[i]ncantation of

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would tend to encourage further surges of mass migrations from Haiti by sea, with attendant strains on national and homeland security resources . . . Encouraging such unlawful mass migrations is inconsistent with immigration policy . . . While the expedited removal policy may reduce the incidence of sea-going Haitian migrants being released on bond pending removal, it hardly provides airtight assurances against future successful migrants through legal and extra-legal maneuvers, or the encouragement of additional maritime migrations likely to arise from such entries”: In re DJ, 2003 BIA Lexis 3 (US AG, Apr. 17, 2003). Almost as a footnote, the Attorney General observed that because the Refugee Protocol “is not self-executing,” it “does not afford respondent any rights beyond what he is afforded under the federal immigration laws”: ibid. Yet the Attorney General failed to acknowledge that the government of the United States is bound by Art. 31 of the Refugee Convention. His decision here to deem the reversal of the Board of Immigration Appeals’ decision a “precedent binding in all future cases” therefore amounted to a clear refusal of the United States to abide by its international legal obligations. RIL-R v. Johnson, 80 F. Supp. 3d 164 (US DCDC, Feb. 20, 2015), at 188–189. See text at note 856. 1167 See text at notes 870–871. 1168 See text at note 874. “Detention that is imposed in order to deter future asylum-seekers, or to dissuade those who have commenced their claims from pursuing them, is inconsistent with international norms”: UNHCR, “Guidelines on the Applicable Criteria and Standards Relating to the Detention of Asylum Seekers and Alternatives to Detention” (2012), at [32]. The English Court of Appeal thus expressed its concern that the argument for the UK’s fast track detention system “does not provide the sort of substantial fact-based justification that the Supreme Court . . . indicated would be needed to justify an interference with a fundamental right”: The Queen (Detention Action) v. Secretary of State for the Home

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the magic words ‘national security’ without further substantiation is simply not enough to justify significant deprivations of liberty.”1171 Nor may public order simply be invoked on a general basis in order to ensure that refugee claimants do not go underground, as is the practice in Lithuania1172 and until recently in Austria.1173 Rather, as the Court of Justice of the European Union has made clear, placing or keeping an applicant in detention . . . is, in view of the requirement of necessity, justified on the ground of a threat to national security or public order only if the applicant’s individual conduct represents a genuine, present and sufficiently serious threat, affecting a fundamental interest of society or the internal or external security of the Member State concerned.1174

Second, even if a response to a legitimate and substantiated concern, detention of persons claiming refugee status can only be said to be demonstrably necessary where it is based on examination of the particular individual’s case. While the Human Rights Committee has adopted the view that an extremely limited form of refugee detention – “in order to document their entry, record their claims and determine their identity if it is in doubt”1175 – is not arbitrary even if applied on a general basis, it has insisted that this is so only if that detention is “for a brief initial period.”1176 Any detention beyond this very

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Department, [2014] EWCA Civ 1634 (Eng. CA, Dec. 16, 2014), at [94]. See also Hamadie Al-Gertani v. Bosnia and Herzegovina, HRC Comm. No. 1955/2010, UN Doc. CCPR/C/ 109/D/1955/2010, decided Nov. 1, 2013, at [10.4] (requiring evidence to substantiate the government’s assertion that the individual’s detention was required in order to avert a threat to public order or the peace and security of the state). RIL-R v. Johnson, 80 F. Supp. 3d 164 (US DCDC, Feb. 20, 2015), at 190. See text at notes 883–884. 1173 See text at note 885. JN v. Staatssecretaris voor Veiligheid en Justitie, Dec. No. C-601/15 PPU (CJEU, Feb. 15, 2016), at [67]. The Court sensibly insisted that detention on grounds of national security or public order may be undertaken “only insofar as [it] is strictly necessary” and that state parties must therefore comply “with a series of conditions whose aim is to create a strictly circumscribed framework in which such a measure may be used”: ibid. at [56]–[57]. See generally European Council on Refugees and Exiles, “The Detention of Asylum Seekers in Europe: Constructed on Shaky Ground?,” June 2017. UN Human Rights Committee, “General Comment No. 35: Article 9 (Liberty and Security of Person)” (2014), UN Doc. CCPR/C/GC/35, Dec. 16, 2014, at [18]. See also “The Michigan Guidelines on Refugee Freedom of Movement,” (2017) 39 Michigan Journal of International Law 1, at [15]; and UNHCR, “Guidelines on the Applicable Criteria and Standards Relating to the Detention of Asylum Seekers and Alternatives to Detention” (2012), at [24]. UN Human Rights Committee, “General Comment No. 35: Article 9 (Liberty and Security of Person)” (2014), UN Doc. CCPR/C/GC/35, Dec. 16, 2014, at [18]. For an argument that even this may be conceding too much see C. Costello, “Immigration Detention: The Grounds Beneath Our Feet,” (2015) 68(1) Current Legal Problems 143 (Costello “Immigration Detention”), at 172–176.

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short period would be non-arbitrary only if predicated on a particularized assessment of the need for detention.1177 As observed by the High Court of Kenya, a “real connection must be established between the affected persons and the danger”1178 said to require detention. It follows from this rule that any automatic detention1179 – for example, the routine detention of unauthorized entrants including refugees as authorized by Hungary,1180 Japan,1181 and Libya1182 – cannot meet the Covenant’s duty to avoid arbitrary detention. Indeed, the same conclusion follows from the stipulation in Art. 31(2) of the Refugee Convention that the exercise of the right of provisional detention must be demonstrably “necessary.”1183 In the original draft submitted by the Secretary-General, a state was authorized to apply such measures “as it may deem necessary [emphasis added].”1184 The final language, which authorizes only restrictions on freedom movement “which are necessary [emphasis added]” was adopted to embrace the spirit of a joint Belgian–American proposal to allow states provisionally to take only “necessary police measures regarding their accommodation, residence and movement in their territory.”1185 The importance of a broad but purposive understanding of the 1177

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Indeed, UNHCR has sensibly insisted that “[t]he inability to produce documentation should not automatically be interpreted as an unwillingness to cooperate, or lead to an adverse security assessment. Asylum-seekers who arrive without documentation because they are unable to obtain any in their country of origin should not be detained solely for that reason. Rather, what needs to be assessed is whether the asylum-seeker has a plausible explanation for the absence or destruction of documentation or the possession of false documentation, whether he or she had an intention to mislead the authorities, or whether he or she refuses to cooperate with the identity verification process”: UNHCR, “Guidelines on Applicable Criteria and Standards relating to the Detention of Asylum Seekers” (2012), at [25]. Kituo Cha Sheria v. Attorney General, Petitions Nos. 19 and 115 of 2013 (Ken. HC, July 26, 2013), at [87]. Nor is this characterization inapposite simply because an individual could opt to withdraw her protection claim. As observed by McHugh J., “a regime which authorizes the mandatory detention of unlawful non-citizens may be arbitrary notwithstanding that the regime may allow for the detainee to request removal at any time”: Re Woolley; Ex parte Applicant M276/2003, [2004] HCA 49, (Aus. HC, Oct. 7, 2004), at [114]. See text at note 863. 1181 See text at notes 861–862. See text at notes 830–831. “The starting point is that New Zealand’s obligations under the Refugee Convention . . . include a duty to ensure that detention is not automatic for arriving persons claiming the status of refugees [citing the court’s earlier decision in Attorney General v. E, [2000] 3 NZLR 257 (NZ CA, July 11, 2000, appeal to PC refused at [2000] 3 NZLR 637)]”: Attorney General v. Refugee Council of New Zealand Inc., [2003] 2 NZLR 577 (NZ CA, Apr. 16, 2003), at [97]. Secretary-General, “Memorandum,” at 45. The French proposal used the same expression: France, “Draft Convention,” at 9. UN Doc. E/AC.32/L.25, Feb. 2, 1950, at 2. The American representative observed that “although the substance of the . . . article was satisfactory, its form left much to be desired”: Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.22, Feb.

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right of provisional detention was emphasized by the President of the Conference of Plenipotentiaries, who asserted that “by inserting the words ‘other than those which are necessary’ . . . the Ad Hoc Committee had intended to cover considerations of security, special circumstances, such as a great and sudden influx of refugees, or any other reasons which might necessitate restrictions of their movement.”1186 Not only must detention be initially justified in order to be non-arbitrary, but it must moreover continue to be justified. Because it cannot be presumed that a once-legitimate reason remains so indefinitely,1187 any detention that is ongoing without periodic review to ensure that the initial justification remains valid is unlawful.1188 Both Indonesia’s practice of subjecting refugees to up to ten years’ imprisonment with no access to judicial review1189 and the US practice of long-term confinement of refugees without regular review1190 infringe this rule.1191 More generally, the duty to take account of the individual’s particular circumstances means that states face a heavy burden if they wish to detain vulnerable persons, including unaccompanied older persons, women, members of sexual minorities, torture, trauma, or trafficking victims, and persons with a mental or physical disability.1192 In particular, it is clear that children

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2, 1950, at 25. This led the Danish delegate, Mr. Larsen, to propose the language upon which the present formulation of Art. 31(2) is based: ibid. Statement of the President, Mr. Larsen of Denmark, UN Doc. A/CONF.2/SR.14, July 10, 1951, at 16. See also UNHCR Executive Committee Conclusion No. 44, “Detention of Refugees and Asylum-Seekers” (1986), at [(b)]. As noted by the High Court of Australia, “[t]he duration of any form of detention, and thus its lawfulness, must be capable of being determined at any time and from time to time”: Plaintiff S4/2014 v. Minister for Immigration and Border Protection, [2014] HCA 34 (Aus. HC, Sept. 11, 2014), at [29]; see also NBMZ v. Minister for Immigration and Border Protection, [2014] FCAFC 38 (Aus. FFC, Apr. 9, 2014), at [114], [177]–[178], making clear that indefinite detention is unlawful. Thus, “[a]ny further detention must be continuously justified on an individuated basis”: “The Michigan Guidelines on Refugee Freedom of Movement,” (2017) 39 Michigan Journal of International Law 1, at [16]. “Aside from judicially imposed sentences for a fixed period of time, the decision to keep a person in any form of detention is arbitrary if it is not subject to periodic re-evaluation of the justification for continuing the detention”: UN Human Rights Committee, “General Comment No. 35: Article 9 (Liberty and Security of Person)” (2014), UN Doc. CCPR/C/ GC/35, Dec. 16, 2014, at [12]. See text at note 866. 1190 See text at notes 876–880. “Indefinite detention of individuals in the course of migration proceedings cannot be justified and is arbitrary”: UN Working Group on Arbitrary Detention, “Revised Deliberation No. 5 on Deprivation of Liberty of Migrants,” Advance Edited Version, Feb. 7, 2018, at [26]. Sadly, therefore, as a matter of international law the US Supreme Court erred in upholding the legality of this regime: Jennings v. Rodriguez, 804 F. 3d 1060 (US SC, Feb. 27, 2018). See UNHCR, “Guidelines on the Applicable Criteria and Standards Relating to the Detention of Asylum Seekers and Alternatives to Detention” (2012), at [49]–[65].

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may be lawfully detained only as a “measure of last resort.”1193 The Australian,1194 Indonesian,1195 Malaysian,1196 and Thai1197 practices of detaining refugee children on a fairly routine basis are therefore unlikely to meet the requirements of Art. 31(2), or of Art. 9 of the Civil and Political Covenant. And while the United Kingdom’s reservation to the Convention on the Rights of the Child insulates it from responsibility under that treaty for the detention of refugee children,1198 it remains independently accountable under the Civil and 1193

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“No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time”: Convention on the Rights of the Child, 1577 UNTS 3 (UNTS 27531), adopted Nov. 20, 1989, entered into force Sept. 2, 1990 (Rights of the Child Convention), at Art. 37(b). In line with this understanding, the Inter-American Court of Human Rights has determined that “the deprivation of liberty of children based exclusively on migratory reasons exceeds the requirements of necessity, because this measure is not absolutely essential in order to ensure their appearance at the immigration proceedings or to guarantee the implementation of a deportation order”: Rights and Guarantees of Children in the Context of Migration and/or in Need of International Protection (Advisory Opinion OC-21/14) (IACtHR, Aug. 19, 2014), at [154]. See also UN Human Rights Committee, “General Comment No. 35: Article 9 (Liberty and Security of Person)” (2014), UN Doc. CCPR/C/ GC/35, Dec. 16, 2014, at [18]: “Children should not be deprived of liberty, except as a measure of last resort and for the shortest period of time, taking into account their best interests as a primary consideration with regard to the duration and conditions of detention, and also taking into account the extreme vulnerability and need for care of unaccompanied minors.” In the view of UNHCR, “[a]s a general rule, unaccompanied or separated children should not be detained. Detention cannot be justified based solely on the fact that the child is unaccompanied or separated, or on the basis of his or her migration or residence status”: UNHCR, “Guidelines on the Applicable Criteria and Standards Relating to the Detention of Asylum Seekers and Alternatives to Detention” (2012), at [54]. Indeed, UNHCR has more recently taken the more emphatic view that “children should not be detained for immigration related purposes, irrespective of their legal/migratory status or that of their parents, and detention is never in their best interests”: UNHCR, “UNHCR’s position regarding the detention of refugee and migrant children in the migration context,” Jan. 2017, at 2. This stronger position echoes a joint general comment espousing the view that “child and family immigration detention should be prohibited by law and its abolishment ensured in policy and practice”: UN Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families and UN Committee on the Rights of the Child, “Joint General Comment No. 4 (2017) of the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families and No. 23 (2017) of the Committee on the Rights of the Child on State obligations regarding the human rights of children in the context of international migration in countries of origin, transit, destination and return,” (2017), UN Doc. CMW/C/GC/4-CRC/C/GC/23, Nov. 16, 2017, at [12]. But this approach has been criticized as “poorly thought out” by a former member of the UN Human Rights Committee: G. Neuman, “Detention as a Last Resort: The Implications of the Human Rights Committee’s General Comment No. 35,” in M. Crock and L. Benson eds., Protecting the Migrant Child 381 (2018). See text at note 922. 1195 See text at note 925. 1196 See text at note 925. See text at note 925. 1198 See text at note 924.

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Political Covenant to overcome the presumption against the necessity of such measures.1199 Third, even if detention is in pursuit of a legitimate purpose and shown to be necessary in the applicant’s specific circumstances, the detention is nonarbitrary only if the particular form of constraint imposed is shown to be a proportionate response to the risk demonstrated.1200 In the words of the Court of Justice of the European Union, there must be no “other less coercive alternative measures”1201 that provide an adequate response to the risk shown. The Supreme Court of Israel thus refused to approve a law authorizing the detention of refugee claimants for up to twenty months,1202 finding that length of time to be disproportionate to the concerns advanced by the government.1203 More generally, the Full Federal Court of Australia interpreted the Covenant’s obligations in the context of the detention of refugee claimants to mean that detention must be subject to the claimant’s right “not to be detained in circumstances which, in the individual case, are ‘unproportional’ or unjust.”1204 This duty of minimal impairment was also clearly endorsed by the Human Rights Committee in the context of a complaint of arbitrary detention made by an Afghan refugee woman and her five young children: Concerning Mrs Bakhtiyari and her children, the Committee observes that Mrs Bakhtiyari has been detained in immigration detention for two years and ten months, and continues to be detained, while the children 1199

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“A child may be deprived of liberty only as a last resort and for the shortest appropriate period of time . . . [T]he best interests of the child must be a primary consideration in every decision to initiate or continue this deprivation”: UN Human Rights Committee, “General Comment No. 35: Article 9 (Liberty and Security of Person)” (2014), UN Doc. CCPR/C/GC/35, Dec. 16, 2014, at [62]. “It is not enough for detention to promote a legitimate government objective, such as ensuring national security, public order (ordre public), public health or morals, or the rights and freedoms of others. Because any limitation on the right to liberty must be demonstrably the least intrusive means available to secure a permissible objective, detention is lawful only if lesser restrictions on liberty – such as reporting requirements or sureties – are incapable of ensuring the permissible objective”: “The Michigan Guidelines on Refugee Freedom of Movement,” (2017) 39 Michigan Journal of International Law 1, at [16]. JN v. Staatssecretaris voor Veiligheid en Justitie, Dec. No. C-601/15 PPU (CJEU, Feb. 15, 2016), at [61]. See also Salah Al Chodor v. Czech Republic, Dec. No. C-528/15 (CJEU, Mar. 15, 2017), at [25] (finding that detention to obviate the risk of absconding was lawful “only in so far as the detention is proportional and where other less coercive alternative measures cannot be applied effectively”). See text at note 864. Desete v. Minister of Interior, Dec. No. HCJ 8665/14 (Isr. SC, Aug. 11, 2015). Regrettably, and without clear explanation, the Court determined that detention for up to twelve months would not be disproportionate. See generally Ziegler, “No Asylum for ‘Infiltrators’.” Minister for Immigration and Multicultural and Indigenous Affairs v. Al Masri, (2003) 197 ALR 241 (Aus. FFC, Apr. 15, 2003).

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remained in immigration detention for two years and eight months until their release on interim orders of the Family Court. Whatever justification there may have been for an initial detention for the purposes of ascertaining identity and other issues, the State party has not, in the Committee’s view, demonstrated that their detention was justified for such an extended period. Taking into account in particular the composition of the Bakhtiyari family, the State party has not demonstrated that other, less intrusive, measures could not have achieved the same end of compliance with the State party’s immigration policies by, for example, imposition of reporting obligations, sureties or other conditions which would take into account the family’s particular circumstances. As a result, the continuation of immigration detention for Mrs Bakhtiyari and her children for the length of time described above, without appropriate justification, was arbitrary and contrary to article 9, paragraph 1, of the Covenant.1205

In a helpful judgment interpreting Art. 31 of the Refugee Convention, Justice Glazebrook (then of the New Zealand Court of Appeal) suggested an approach that takes account of both “the extent of any restrictions imposed and the reasons for such restrictions”:1206 It is implicit . . . that restrictions on freedom of movement that are less restrictive than detention should be able to be imposed more freely . . . [T]he necessity standard is variable depending on the nature of the restriction on freedom of movement to be applied . . . . . . [T]he greater restriction there is to be on a claimant’s freedom of movement, the more scrutiny should be given to the reasons for 1205

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Bakhtiyari v. Australia, HRC Comm. No. 1069/2002, UN Doc. CCPR/C/79/D/1069/2002, decided Oct. 29, 2003, at [9.3]. See also C v. Australia, HRC Comm. No. 900/1999, UN Doc. CCPR/C/76/D/900/1999, decided Oct. 28, 2002, at [8.2]; MGO v. Australia, HRC Comm. No. 1875/2009, UN Doc. CCPR/C/113/D/1875/2009, decided Mar. 26, 2015, at [11.6]; MMM v. Australia, HRC Comm. No. 2136/2012, UN Doc. CCPR/C/108/D/2136/2012, decided July 25, 2013, at [10.4]; FKAG v. Australia, HRC Comm. No. 2094/2011, UN Doc. CCPR/C/108/D/2094/2011, decided July 26, 2013, at [9.4]; and FJ v. Australia, HRC Comm. No. 2233/2013, UN Doc. CCPR/C/116/D/2233/2013, decided Mar. 22, 2016, at [10.3]–[10.4]. Indeed, the international illegality of Australia’s policy of refugee detention has been noted by the High Court of Australia, even as it found itself jurisdictionally constrained to apply that law: Re Woolley; ex parte Applicants M276/2003, [2004] HCA 49 (Aus. HC, Oct. 7, 2004), in particular the reasons of Kirby J. at [201] and of McHugh J. at [114]. In an earlier decision, Justice Kirby observed, “[m]andatory detention of unlawful non-citizens who are children is the will of the Parliament of Australia . . . In the face of such clear [domestic statutory] provisions, the requirements of international law . . . cannot be given effect by a court such as this. This Court can note and call attention to the issue. However, it cannot invoke international law to override clear and valid provisions of Australian national law”: Minister of Immigration and Multicultural Affairs v. B and B, [2004] HCA 20 (Aus. HC, Apr. 29, 2004), at [171]. Attorney General v. Refugee Council of New Zealand Inc., [2003] 2 NZLR 577 (NZ CA, Apr. 16, 2003), at [257].

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detention . . . [A] major restriction on the freedom of movement through detention . . . appear[s] to require an element of “fault” on the part of the claimant.1207

This framework effectively compels states to give primary consideration to constraints on freedom of movement short of detention, since such less intrusive measures will be much more readily deemed justified.1208 While there can be no question of even routine resort to such measures as residence restrictions or reporting requirements,1209 the view that detention should ordinarily be contemplated as a last resort1210 and normally only where there is some evidence of mala fides or risk associated with the liberty of the refugee claimant is a sound point of departure.1211 It drives governments meaningfully to honor the presumptive right of refugees to enjoy freedom of movement, even as it 1207 1208

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Ibid. at [265], [275]. In a decision successfully appealed to the Court of Appeal, the New Zealand High Court determined that “[d]etention is warranted only where ‘necessary.’ I would have thought that the possibility of lesser forms of control would need to be addressed before the more drastic steps of full detention could be justified . . . Open centers may or may not be available in New Zealand at present. However, it is certainly commonplace in the analogous system of criminal prosecutions that persons on remand are granted bail subject to stringent conditions including daily reporting requirements, residence at a nominated address, geographical limitations upon movement, surrender of passports, curfews, and other restrictions of that nature”: E v. Attorney General, [2000] NZAR 354 (NZ HC, Nov. 29, 1999), appeal allowed in Attorney General v. E, [2000] 3 NZLR 257 (NZ CA, July 11, 2000, appeal to PC refused at [2000] 3 NZLR 637). See text at note 1232 ff. for a more detailed analysis of alternatives to detention. “It is significant that Article 31(2) applies to restrictions on freedom of movement generally, and not just to detention”: Attorney General v. Refugee Council of New Zealand Inc., [2003] 2 NZLR 577 (NZ CA, Apr. 16, 2003), at [259]. “[T]here should be a strong, although rebuttable, presumption in favor of granting temporary permits to refugee claimants pending the determination of their refugee status”: E v. Attorney General, [2000] NZAR 354 (NZ HC, Nov. 29, 1999), appeal allowed in Attorney General v. E, [2000] 3 NZLR 257 (NZ CA, July 11, 2000, appeal to PC refused at [2000] 3 NZLR 637). See e.g. Jalloh v. Netherlands, HRC Comm. No. 794/1998, UN Doc. CCPR/C/74/D/794/ 1998, decided Mar. 26, 2002, at [8.2]: “[T]he author had his detention reviewed by the courts on two occasions, once twelve days after the beginning of his detention, and again two months later. On both occasions, the Court found that the author’s continued detention was lawful, because he had evaded expulsion before, because there were doubts as to his identity, and because there were reasonable prospects for expulsion, as an identity investigation was still ongoing. The question remains therefore as to whether his detention was arbitrary. Recalling its previous jurisprudence the Committee notes that ‘arbitrariness’ must be interpreted more broadly than ‘against the law’ to include elements of unreasonableness. Considering the author’s flight from the open facility at which he was accommodated from the time of his arrival for around 11 months, the Committee considers that it was not unreasonable to have detained the author for a limited time until the administrative procedure relating to his case was completed [emphasis added].”

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affords them a flexible framework within which to respond to legitimate concerns.1212 An issue of real contemporary concern is whether provisional detention can be adjudged an appropriate response in order to ensure the efficient assessment of claims to refugee status. While not included in UNHCR’s “list” of approved reasons for provisional detention,1213 courts have taken the view that shortterm detention dictated by important administrative reasons may be acceptable.1214 For example, the House of Lords gave consideration in Saadi1215 to the legality of the detention of refugee claimants adjudged to have “straightforward asylum claims” for seven to ten days, allowing their claims quickly to be adjudicated. Their Lordships took real account of both the practical need to deal expeditiously with a mounting volume of claims,1216 and of the quality of the detention (which included, for example, access to legal advice)1217 to arrive at the decision that detention for a few days could be ruled necessary: There is obviously force in the argument . . . that if there is no suggestion that [the claimants] might run away, then it cannot be strictly necessary to detain them as opposed to requiring them to comply with the fixed regime enabling detailed examinations to take place. This, however, ignores the reality – large numbers of applications have to be considered intensively in a short period. If people failed to arrive on time or at all the Programme would be disrupted and delays caused not only to the individual case, but 1212

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“The word ‘necessary’ limits both the extent of any restrictions imposed and the reasons for such restrictions”: Attorney General v. Refugee Council of New Zealand Inc., [2003] 2 NZLR 577 (NZ CA, Apr. 16, 2003), at [259]. UNHCR, “Guidelines on the Applicable Criteria and Standards Relating to the Detention of Asylum Seekers and Alternatives to Detention” (2012), at [21]–[30]. Indeed, the agency suggests that “[a]ny detention in connection with accelerated procedures should only be applied to cases that are determined to be ‘manifestly unfounded’ or ‘clearly abusive’”: ibid. at [23]. The New Zealand High Court, for example, determined that detention might be necessary “to allow the [government] to be able to perform their functions”: Refugee Council of New Zealand et al. and “D” v. Attorney General, [2002] NZAR 717 (NZ HC, May 31, 2002). But see Costello, “Immigration Detention,” at 164. R (Saadi) v. Secretary of State for the Home Department, [2002] UKHL 41 (UK HL, Oct. 31, 2002). “The number of persons arriving in the United Kingdom and seeking asylum has grown considerably in recent years. Thus your Lordships were told that from July to September 1999 the average number of applications was 7,000 a month, a 60% increase on the previous year . . . This obviously placed a considerable strain on the immigration services”: ibid. at [10]. “There is obviously a deprivation of liberty in detaining people at Oakington. They cannot leave the centre, they must conform to the rules as to meal times and to being in their rooms at night. On the other hand, it is not suggested that the physical conditions – the state of the rooms, sanitation, meals – are in themselves open to criticism. Moreover, there are provisions not only for legal advice, but for medical advice, for recreation and for religious practice”: ibid. at [17].

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to dealing with the whole problem. If conditions in the centre were less acceptable than they are taken to be, there might be more room for doubt, but it seems to me that the need for speed justifies detention for a short period in acceptable physical conditions as being reasonably necessary.1218

Thus, very much in line with the approach of New Zealand’s Justice Glazebrook, the House of Lords adopted what amounts to a proportionality analysis in which quite short-term detention in conditions of a high standard might be deemed a fair response to the need quickly to process a large number of asylum claims. The clear implication of the judgment, however, is that the restriction on freedom of movement was only deemed valid because its duration was both short and finite, and the conditions of detention clearly rightsregarding – in other words, the intrusion on the rights of the persons seeking protection had been kept to a proportionate minimum.1219 This three-part understanding of lawful detention under Art. 9 of the Covenant – requiring that detention be in pursuit of a legitimate goal, individually assessed on a continuing basis, and proportionate – aligns neatly with traditional understandings of restrictions on movement that are “necessary” 1218

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Ibid. at [24]. In reviewing the facts of this case, a Grand Chamber of the European Court of Human Rights found no violation of regional human rights norms, noting that detention is not arbitrary if (1) carried out in good faith; (2) closely connected to the purpose of preventing unauthorised entry to the country; (3) the place and conditions of detention were appropriate bearing in mind that the detainee was an asylum-seeker rather than a suspected criminal; (4) the length of the detention did not exceed that reasonably required for the purpose pursued: Saadi v. United Kingdom, Dec. No. 13229/ 03 (ECtHR, Jan. 29, 2008). In subsequent litigation, the Court of Appeal approved of a finding that as initially implemented the system had “created an unacceptable risk of unfair determinations for those vulnerable or potentially vulnerable applicants . . . who did not have access to lawyers sufficiently soon after induction to enable instructions to be taken and advice to be given before the substantive interview and was to that extent being operated unlawfully”: The Queen (Detention Action) v. Secretary of State for the Home Department, [2014] EWCA Civ 1270 (Eng. CA, Sept. 10, 2014), at [5]. The Court of Appeal later also rejected the government’s argument that detention at the fast track appeal stage was administratively necessary. “The assumption is made on behalf of the Secretary of State that, because there is a need to process approximately 2,000 appeals per annum in the fast track at eight fast track courts at three hearing centres, Saadi’s reasoning applies to the appeals stage. Why is this so although the reasoning in Saadi was tied to the need for onthe-spot availability for interviews and the much shorter period? . . . There is no evidence from the Tribunal that it would be unable to deal with appellants as quickly without them being in detention and no evidence from the Home Office that it is not possible to place those released near centres with fast-track appeal tribunals”: The Queen (Detention Action) v. Secretary of State for the Home Department, [2014] EWCA Civ 1634 (Eng. CA, Dec. 16, 2014), at [85], [87]. Both the original 2005 fast track rules and a revised 2014 version thereof were determined to be ultra vires, it having been found that there was no material difference between the empowering statutory provisions or the rules themselves: The Queen (TN (Vietnam) and US (Pakistan)) v. Secretary of State for the Home Department, [2017] EWHC 59 (Eng. HC, Jan. 20, 2017).

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under Art. 31(2) of the Refugee Convention.1220 But the Covenant adds net value by requiring not only that detention be non-arbitrary, but also ordered “in accordance with such procedure as [is] established by law.”1221 As such, even justifiable and proportionate detention may not simply be ordered at the discretion of officials, but must rather “be prescribed by law and . . . defined with sufficient precision to avoid overly broad or arbitrary interpretation or application.”1222 This point was recognized by the Greek Council of State, which struck down geographical restrictions imposed on refugees arriving at six Greek islands because the relevant order failed to provide legal justification for the constraints on refugee freedom of movement.1223 More generally, the European Court of Justice has determined that detention of refugee claimants must be based on legislative standards since “only a provision of general application could meet the requirements of clarity, predictability, accessibility and, in particular, protection against arbitrariness.”1224 Perhaps most important, Art. 9(4) of the Covenant “enshrines the principle of habeas corpus,”1225 meaning that “anyone who is deprived of liberty [is entitled] to take proceedings before a court, in order that the court may decide without delay the lawfulness of detention and order release if the detention is not lawful.”1226

4.2.4.2 Other Restrictions on Movement The main shortcoming of Art. 9 of the Covenant is that it requires protection only of “liberty and security of person,”1227 including specifically freedom from “arbitrary arrest or detention.”1228 Liberty of person “concerns freedom from confinement of the body, not a general freedom of action.”1229 As the Human Rights Committee has affirmed, “[d]eprivation of liberty involves more severe restriction of motion within a narrower space than mere interference with 1220 1222

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1227 1229

See text at note 1151 ff. 1221 Civil and Political Covenant, at Art. 9(1). UN Human Rights Committee, “General Comment No. 35: Article 9 (Liberty and Security of Person)” (2014), UN Doc. CCPR/C/GC/35, Dec. 16, 2014, at [22]. See e.g. Clifford McLawrence v. Jamaica, HRC Comm. No. 702/1996, UN Doc. CCPR/C/60/D/ 702/1996, decided Apr. 26, 1996, at [5.5]. Dec. No. 805/2018 (Gr. CS, Apr. 17, 2018) (based on unofficial translation provided by the ECRE Asylum Information Database). Salah Al Chodor v. Czech Republic, Dec. No. C-528/15 (CJEU, Mar. 15, 2017), at [43]. UN Human Rights Committee, “General Comment No. 35: Article 9 (Liberty and Security of Person)” (2014), UN Doc. CCPR/C/GC/35, Dec. 16, 2014, at [39]. Ibid. This right to seek habeas corpus is said explicitly to apply to “immigration detention”: ibid. at [40]. The applicability of Art. 9(4) to the detention of refugees and migrants was affirmed in e.g. FJ v. Australia, HRC Comm. No. 2233/2013, UN Doc. CCPR/C/116/ D/2233/2013, decided Mar. 22, 2016, at [10.5]; and FKAG v. Australia, HRC Comm. No. 2094/2011, UN Doc. CCPR/C/108/D/2094/2011, decided July 26, 2013, at [9.6]. Civil and Political Covenant, at Art. 9(1). 1228 Ibid. UN Human Rights Committee, “General Comment No. 35: Article 9 (Liberty and Security of Person)” (2014), UN Doc. CCPR/C/GC/35, Dec. 16, 2014, at [2].

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liberty of movement”1230 – the latter, more ample, freedom of movement accruing under the Covenant only with lawful presence.1231 In contrast, even unlawfully present refugees entitled to the benefit of Art. 31(2) must be exempted not only from unnecessary detention, but also from any “restrictions other than those which are necessary”1232 on their “movements.”1233 So long as a refugee voluntarily reports to asylum state authorities within a reasonable time after crossing the frontier and satisfies them that her unlawful entry or presence was necessitated by the urgency of her search for protection,1234 Art. 31(2) provides that the onus is on the receiving state to demonstrate that any restriction on her movement is “necessary.”1235 This means that many of the same criteria informing the meaning of “necessity” discussed above1236 – pursuit of a legitimate goal, individuated assessment on a continuing basis, and proportionality – apply to assessment of the legality of any restriction on movement, not just to full-blown detention.1237 Given this framing of Art. 31(2) of the Refugee Convention, even alternatives to detention that might suffice to avoid liability under Art. 9 of the Covenant may nonetheless be impermissible. As UNHCR has helpfully insisted, “alternatives to detention should not be used as alternative forms of detention; nor should alternatives to detention become alternatives to release.”1238 While some alternatives are likely to be found to be minimally 1230 1232 1235

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Ibid. at [5]. 1231 Civil and Political Covenant, at Art. 12(1). Refugee Convention, at Art. 31(2). 1233 Ibid. 1234 See Chapter 4.2.1. Refugee Convention, at Art. 31(2). “Nor may a state routinely subject all refugees to restrictions on liberty that are less intrusive than detention. Under Convention Art. 31(2), a refugee . . . is presumptively exempt from any restriction on freedom of movement unless that restriction is shown to be necessary – that is, that it is the least intrusive means available to secure a permissible objective. The requirements of Art. 31(2) must be interpreted in a broad, non-mechanistic, and purposive way”: “The Michigan Guidelines on Refugee Freedom of Movement,” (2017) 39 Michigan Journal of International Law 1, at [17]. See text at note 1183. An interesting argument advanced before the Irish High Court was that the breadth of Art. 31(2) means that it regulates interstate restriction of refugee freedom of movement of the kind inherent in the allocation system of the Dublin Regulation. While the Court rejected the argument on the ground that “the element of choice afforded by the Geneva Convention as asserted by the applicant is unreasonably overstated” (MAH v. International Protection Appeals Tribunal, [2017] IEHC 462 (Ir. HC, July 17, 2017), at [10]), the more compelling answer would be that the context of Art. 31(2) includes the more general Art. 31(1) which, as noted above, allows expulsion to a non-persecutory country: see Chapter 4.2.2. UNHCR, “Guidelines on the Applicable Criteria and Standards Relating to the Detention of Asylum Seekers and Alternatives to Detention” (2012), at [38]. Indeed, “automatic recourse to alternatives to detention as a general means of migration control becomes all the more problematic when used as a gateway to detention . . . [M]isinterpreting alternatives to detention as systematic measures of migration control risks turning the legal constraints to detention of asylum seekers on their head. Rather than a last-resort

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invasive and hence proportionate – for example, a community supervision arrangement of the kind commonly used in Canada,1239 the use of an electronic monitoring device by Denmark,1240 or telephone reporting as sometimes relied upon in the United States1241 – other alternatives to detention are likely to face a tougher challenge. Practices such as the United Kingdom’s reliance on guarantors or sureties1242 or the duty in Sweden to deposit or surrender documentation1243 constrain freedom of movement in a more significant way, and will thus require more compelling evidence of necessity on the facts of the particular case. Art. 31(2) is most commonly contravened when persons claiming refugee status are required to live on an ongoing basis in a particular location – for example, the Greek system of assigning refugees presenting themselves to authorities to a reception center or hostel,1244 the practice of directed residence as occurs in France,1245 or mandatory residence at open or semi-open reception or asylum centers as mandated in Germany.1246 Such highly invasive regimes are unlikely to be deemed proportionate measures satisfying the necessity requirement of Art. 31(2). The clearest cases in which Art. 31(2) is violated, however, involve strict and broad-ranging geographical restrictions of the kind imposed by Indonesia,1247 Kenya,1248 and Tajikistan1249 – effectively denying refugees the ability to live in urban areas and to travel. Similarly, Germany’s assignment of refugee claimants to live in a particular Land1250 is likely to fall afoul of this provision unless the government is able clearly to demonstrate that responsibility-sharing among that country’s regions cannot be achieved by a less intrusive means. Practices such as those of Bulgaria1251 and Ireland1252 – which allow refugee claimants to live outside the reception center only if they are prepared to give up state welfare benefits – are, however, less clearly in breach of Art. 31(2). In pith and substance, such policies seem less a constraint on freedom of movement giving rise to a concern under Art. 31(2) than a restriction on access to public benefits. This restriction is in most cases lawful since, at least until and unless an issue of denial of access to the necessities of life arises,1253 states are

1239 1242

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measure permissible on strictly circumscribed grounds, detention seems to be increasingly legitimised as a punitive measure per se, justified by the individual’s failure to comply with an alternative”: European Council on Refugees and Exiles, “The detention of asylum seekers in Europe: Constructed on shaky ground,” June 2017, at 11. See text at note 889. 1240 See text at note 896. 1241 See text at note 897. See text at note 888. “Alternatives to detention should be realistic and must not depend upon the ability of the individual to pay for these”: UN Working Group on Arbitrary Detention, “Revised Deliberation No. 5 on Deprivation of Liberty of Migrants,” Advance Edited Version, Feb. 7, 2018, at [17]. See text at note 895. 1244 See text at notes 906–907. 1245 See text at note 893. See text at note 890. 1247 See text at note 860. 1248 See text at notes 858–859. See text at note 857. 1250 See text at note 890. 1251 See text at note 891. See text at note 892. States are obliged under international human rights law to ensure the necessities of life to persons under their jurisdiction: see Chapter 4.4.

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only under a duty to grant refugees access to public relief systems once the refugee establishes an ongoing presence in the asylum country (whether or not there has been a formal declaration of refugee status, grant of the right of permanent residence, or establishment of domicile there).1254 As such, a decision to condition earlier access to welfare benefits on residence in a reception center is effectively a constraint on access to a privilege, which a refugee may choose to accept or not. The issue of whether the policy amounts to a necessary constraint on freedom of internal movement therefore does not arise.1255 The duty to avoid other than truly necessary constraints on the freedom of movement of refugees who meet the good faith criteria of Art. 31 was insisted upon by the drafters of the Refugee Convention. For example, the representative of the International Refugee Organization observed that the reference to “necessary” measures “implied that the refugee should not be subjected to irksome restrictions, that he should be permitted to move outside the reception camp to the greatest extent possible, and that he should lead as normal a life as possible.”1256 The logic of this special exemption from even less invasive constraints on movement stems from the drafters’ determination to provide an incentive for refugees to come forward and submit their claims to authorities:1257 having shown good faith by doing so, this subset of unlawfully arriving refugees has established their reliability, and ought not therefore to have their movements constrained in any fashion that is not demonstrably necessary – a practice generally followed by Hong Kong, for example.1258

4.2.4.3

Mandatory Termination of Refugee Detention and Other Restrictions on Movement In addition to its value as a means of broadening the reach of protection beyond simply “detention” to include all constraints on movement, Art. 31(2) of the Refugee Convention also sets an unambiguous duty to terminate even demonstrably necessary refugee-specific detention or other constraints on movement, namely that “such restrictions shall only be applied until their 1254 1255

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See Chapter 6.3. However, once a refugee is in an asylum country on an ongoing basis, including once admitted to a temporary protection regime in the asylum state, there is a duty to assimilate him or her to nationals for the purpose of access to public relief: see Chapter 3.1.4. If in such circumstances a state party persists in a policy of denying welfare benefits to refugees who refuse to reside in a reception center, its actions more clearly amount to a denial of freedom of internal movement (since the choice being offered amounts to losing one right, or losing another). The state would then be required to justify its policy by reference to Art. 26 of the Refugee Convention and, more generally, to meet the requirements of Art. 12 of the Civil and Political Covenant: see Chapter 5.2. Statement of Mr. Weis of the IRO, UN Doc. E/AC.32/SR.22, Feb. 2, 1950, at 24–25. See Chapter 4.2.1 at note 980. 1258 See text at note 894.

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status in the country is regularized or they obtain admission into another country.”1259 In the case of refugees not being considered for a more durable status in the asylum country, but who have instead applied to travel to some other state, the drafters took the view that Art. 31(2) authorizes detention up to the time of departure for that other state. At the urging of the Danish representative, the Ad Hoc Committee amended the applicable part of Art. 31(2) to allow detention to continue until refugees “obtain admission into another country.” It was felt that the phrasing in an earlier draft, “until such time as it is possible to make a decision regarding their legal admission to . . . another country,”1260 could have been misinterpreted to require release once formal permission to travel onward had been received. The concern was that release pending removal to the other state might have allowed refugees the opportunity to abscond.1261 On the basis of Art. 31 standing alone, then, the initial decision to detain Vietnamese refugees in Hong Kong pending their relocation to other states under the Comprehensive Plan of Action1262 was arguably justified by Art. 31(2).1263 Yet because refugees awaiting departure for an alternate asylum state are “lawfully within” the asylum country and thus entitled also to the benefit of Art. 12 of the Civil and Political Covenant1264 – guaranteeing them mobility rights subject only to constraints necessary to protect an interest enumerated in Art. 12(3)1265 – the state in which they are waiting has the onus to show that interim detention (or any other constraint on free movement) is in fact “necessary” in line with the considerations outlined above.1266 Whatever flexibility the drafters of Art. 31(2) of the Refugee Convention sought to afford 1259 1261

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Refugee Convention, at Art. 31(2). 1260 UN Doc. E/AC.32/L.26, Feb. 2, 1950, at 2. “He wondered whether . . . a country would be obliged to release the refugees as soon as they had obtained entry visas to another country. Some refugees might possibly use such an opportunity to remain in the country illegally”: Statement of Mr. Larsen of Denmark, UN Doc. E/AC.32/SR.24, Feb. 3, 1950, at 6. See text at note 910. But when it became clear that Hong Kong was using detention not simply as a practical means to implement the overseas relocation of refugees (see note 910), but rather as an explicit mechanism of deterrence, the legality of detention came to an end. This is because the right to detain refugees under Art. 31(2) must, as analyzed above, pursue a legitimate end (which deterrence is not). Rather, in the context of refugees opting to seek protection elsewhere the only restrictions on freedom of movement that are plausibly necessary are those related to effecting the goal of external relocation. See text at note 1159. Art. 12 rights inhere to “[e]veryone lawfully within the territory of a State”: Civil and Political Covenant, Art. 12(1). The Human Rights Committee has, for example, determined that even a rejected asylum applicant ordered deported but not removed on humanitarian grounds was lawfully present: Celepli v. Sweden, HRC Comm. No. 456/ 1991, UN Doc. CCPR/C/51/D/456/1991, decided Mar. 19, 1993. See generally Chapter 3.1.3. These include “national security, public order (ordre public), public health or morals or the rights and freedoms of others”: Civil and Political Covenant, at Art. 12(3). See text at note 1220.

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states in this regard has, with the entry into force of the Covenant, now been superseded.1267 The more common question is when the power to constrain movement via detention or otherwise under Art. 31(2) ceases in relation to refugees who wish to remain in the asylum country, but whose claims to refugee status have not yet been verified. Discussion in the Conference of Plenipotentiaries showed an intention to defer to the views of the Ad Hoc Committee about the meaning of the agreed cutoff point – “regularization” of status.1268 As described in detail above,1269 the Committee determined that once an individual was admitted to a process intended to assess his entitlement to protection, his status had been “regularized.”1270 More specifically, in response to a French proposal to regulate the freedom of movement of refugees “authorized to reside within a territory”1271 (which became Art. 26), the American representative proposed that the Refugee Convention also include a specific provision to regulate the right to detain refugees “who had not yet been regularly admitted into a country”1272 (which became Art. 31(2)). This led the British representative to inquire how “regularly admitted” should be interpreted.1273 The French delegate answered him by giving a detailed description of the French asylum system, under which an immediate but provisional (and sometimes geographically limited) right to remain in France was granted to asylum-seekers.1274 Clearly concerned to maximize the protection of refugees admitted to systems of this kind that 1267

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There is therefore no need to attempt a revisionist view of Art. 31(2) in order to ensure the presumptive freedom of movement of refugees awaiting resettlement or other authorized relocation to a third state: but see Noll, “Article 31,” at 1273. Statement of Mr. Hoare of the United Kingdom, UN Doc. A/CONF.2/SR.14, July 10, 1951, at 16. See Chapter 3.1.3. This understanding is adopted in Costello, “Article 31,” at 44. In the view of the Ad Hoc Committee, “regularization” under Art. 31(2) was not predicated on formal recognition as a refugee. At one point, the Committee provisionally adopted language for Art. 31(2) that would have allowed refugee-specific detention to continue until a decision was reached on refugee status. “The High Contracting Parties nevertheless reserve the right to apply to such refugees necessary police measures . . . until such time as it is possible to take a decision regarding their legal admission to the country of reception”: UN Doc. E/AC.32/L.25, Feb. 2, 1950, at 2. This language was proposed jointly by Belgium and the United States. It was provisionally adopted on February 2, 1950: UN Doc. E/AC.32/L.26, Feb. 2, 1950, at 2. But the very next day, the Chairman successfully proposed a version of Art. 31(2) that restored the original reference to “regularization”: Statement of the Chairman, Mr. Chance of Canada, UN Doc. E/ AC.32/SR.24, Feb. 3, 1950, at 6. Even the British representative, who had earlier voiced concern about this language, expressly “accepted that form of words”: Statement of Sir Leslie Brass of the United Kingdom, ibid. Statement of Mr. Rain of France, UN Doc. E/AC.32/SR.15, Jan. 27, 1950, at 17. Statement of Mr. Henkin of the United States, ibid. at 18. Statement of Sir Leslie Brass of the United Kingdom, ibid. at 18. Statement of Mr. Rain of France, ibid. at 18.

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bestow rights on refugees only incrementally, the representative of the United States asserted “that persons subject to these restrictions should nevertheless be considered, for purposes of the future convention, to have been regularly admitted.”1275 Critically, the French delegate agreed, noting that “[a]ny person in possession of a residence permit was in a regular position. In fact, the same was true of a person who was not yet in possession of a residence permit but who had applied for it and had the receipt for that application. Only those persons who had not applied, or whose applications had been refused, were in an irregular position [emphasis added].”1276 As this passage suggests, a refugee is only lawfully present when he has submitted himself to all necessary investigations of his claim to protection, and filed whatever documentation or statements are reasonably required to verify the claim to refugee status. But once any such prerequisite obligations have been discharged, the refugee’s presence has been regularized in the receiving state, and refugee-specific restrictions on freedom of movement must come to an end. Kenya’s practice of detaining even formally documented asylumseekers1277 thus clearly abridges this requirement. Importantly, neither of the key reasons advanced to justify the drafting of Art. 31(2) can logically be invoked in support of ongoing detention while awaiting a final decision on status verification. The primary concern of the drafters was to have some means, short of expulsion, to respond to the arrival of a mass influx of refugees. As stated by the Danish representative, A country which was receiving large numbers of refugees could not contemplate making them re-cross the frontier or handing them over to the authorities which had persecuted them. Such refugees were often placed in camps, but it would be desirable to ensure them more normal and humane living conditions, for which purpose a certain number of fairly simple rules for the treatment of refugees not yet authorized to reside in a country should be drawn up.1278

Art. 31(2) is therefore addressed to the rights of “refugees admitted provisionally as an emergency measure.”1279 In recognition of the “real danger, on both economic and security grounds,”1280 posed by “a great and sudden influx of refugees,”1281 Art. 31(2) affords governments some breathing space to 1275 1276 1278

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Statement of Mr. Henkin of the United States, ibid. at 20. Statement of Mr. Rain of France, ibid. at 20. 1277 See text at note 836. Statement of Mr. Larsen of Denmark, UN Doc. E/AC.32/SR.15, Jan. 27, 1950, at 22. Mr. Larsen’s reference to refugees not yet authorized to “reside” in the asylum country should be understood in the context of his earlier remarks, in which persons admitted provisionally to Denmark were nonetheless said to “reside” in that country: ibid. at 16–17. Statement of Mr. Weis of the IRO, UN Doc. E/AC.32.SR.21, Feb. 2, 1950, at 3. Statement of Mr. Herment of Belgium, UN Doc. E/AC.32/SR.40, Aug. 22, 1950, at 4. Statement of the President, Mr. Larsen of Denmark, UN Doc. A/CONF.2/SR.14, July 10, 1951, at 16.

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determine how best to minimize the risks associated with their arrival.1282 As the French representative to the Ad Hoc Committee explained, The Secretariat had in mind the case of the Spanish refugees who had presented themselves in large numbers at the French frontier towards the end of the Spanish Civil War and for whom it had been necessary to set up reception camps to meet their immediate needs before regularizing their position and arranging for their dispersal throughout the country. The obligation to remain in those camps was clearly a considerable limitation of the right of movement . . . Such a practice might, however, prove essential in certain circumstances.1283

Thus, objection cannot ordinarily be taken to the strictly provisional detention of refugees arriving in the context of a mass influx until more durable arrangements can be made. On the other hand, detention even in the context of a mass influx cannot continue once the refugees’ presence has been rendered lawful, including by the passage of time1284 – thus making Tanzanian and Ugandan long-term detention of Rwandan and Burundian refugees1285 legally problematic.1286 Where countries such as these opt neither to expel refugees nor to authenticate their Convention refugee status, they must be taken to have acquiesced in the asylum-seekers’ assertion of entitlement to refugee rights after a reasonable period of time has passed, in consequence of which the refugees enjoy the presumptive right to freedom of internal movement under Art. 26 of the Convention.1287 Nor does the fact of a mass influx provide legal support for the Thai use of violence to enforce detention in response to a mass influx of refugees.1288 As discussed above,1289 restrictions on freedom of movement, even in the context of a mass influx, must be substantively reasonable – including a duty to implement them in a manner that does not infringe other norms of international human rights law. Brutality to impose or to enforce detention clearly fails this test. Beyond enabling governments to cope with a mass influx, the second and more general objective of Art. 31(2) was to allow host states time to complete a basic inquiry into the identity and circumstances of unauthorized asylumseekers before releasing them into the community. At the Conference of 1282

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“If there are few illegal entrants, strict measures such as detention will be less easily justified than in the case of a mass influx, in which case the task of authorities may become overwhelming and necessitate a special ad hoc screening procedure”: Grahl-Madsen, Status of Refugees II, at 419. Statement of Mr. Rain of France, UN Doc. E/AC.32/SR.15, Jan. 27, 1950, at 14. See Chapter 3.1.3 at note 169. 1285 See text at notes 909 and 904. The fact that the UNHCR sometimes cooperates with countries imposing such long-term detentions (as in Tanzania, see text at notes 908–909) does not affect the legality or lack thereof of the detention, as the agency has no authority to suspend Convention duties or authorize deviations from same. See Chapter 3.1.3 at note 169. 1288 See text at note 903. 1289 See text at note 1159.

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Plenipotentiaries, Sweden and Greece asserted the importance of allowing governments to satisfy themselves that an unauthorized entrant does not pose a threat to their national security.1290 France expressed a more general concern to be in a position to investigate the identity of irregularly arriving refugees. It argued that governments should be allowed to detain asylumseekers “for a few days, to obtain information on them. The French Government’s aim in the question under discussion was that their authorities should be able to detain for a few days completely unknown persons unattached to any territory.”1291 Britain also thought that Art. 31(2) should be understood to authorize “provisional detention that might be necessary to investigate the circumstances in which a refugee had entered a country.”1292 This led the President of the Conference to conclude that “there was general agreement with the French representative’s point of view that every State was fully entitled to investigate the case of each refugee who clandestinely crossed its frontier, and to ascertain whether he met the necessary entry requirements.”1293 This exchange makes clear that Art. 31(2) establishes only a “provisional” right of detention “for a few days,” while the government of the asylum country completes a basic investigation of the asylum-seeker’s identity and circumstances1294 – a position that is mirrored in the Human Rights Committee’s interpretation of Art. 9 of the Covenant, allowing “[a]sylum seekers who unlawfully enter a State party’s territory [to] be detained for a brief initial period in order to document their entry, record their claims and determine their identity if it is in doubt.”1295 After 1290

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Statements of Mr. Petren of Sweden and of Mr. Philon of Greece, UN Doc. A/CONF.2/ SR.14, July 10, 1951, at 15–16. The Swedish delegate had earlier tabled an amendment that would expressly authorize refugee-specific detention on national security grounds pending a formal decision on refugee status: UN Doc. A/CONF.2/65. See also Statement of Mr. van Heuven Goedhart of UNHCR, UN Doc. A/CONF.2/SR.35, July 25, 1951, at 13: “Each State was, of course, entitled to make the investigations necessary to safeguard its security.” Statement of Mr. Rochefort of France, UN Doc. A/CONF.2/SR.35, July 25, 1951, at 11. Statement of Mr. Hoare of the United Kingdom, ibid. at 12. Statement of the President, Mr. Larsen of Denmark, ibid. at 13. See generally UNHCR, “Guidelines on the Applicable Criteria and Standards Relating to the Detention of Asylum Seekers and Alternatives to Detention” (2012), at [24]–[27]. In Singh v. Nelson, 623 F. Supp. 545 (US DCNY, Dec. 12, 1985), the US District Court failed to recognize the need strictly to limit the duration of the right to detain refugees under Art. 31(2). Noting simply that “[i]t was also contemplated that in aid of its efforts to investigate the circumstances in which a refugee had entered a country, the government could detain and keep him in custody,” the Court refused to deem the incarceration of Afghan claimants for more than a year to be outside the scope of Art. 31(2). UN Human Rights Committee, “General Comment No. 35: Article 9 (Liberty and Security of Person)” (2014), UN Doc. CCPR/C/GC/35, Dec. 16, 2014, at [18]. Indeed, UNHCR takes a somewhat more cautious approach, suggesting that “[i]t is permissible to detain an asylum-seeker for a limited initial period for the purpose of recording, within

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that point, any ongoing detention will have to meet the requirements of Art. 26, which authorizes the detention of refugees only on the same grounds as are applied to aliens generally.1296 Not only is this understanding historically sound, but it clearly advances the overarching purpose of Art. 31 as a whole – to provide refugees with an incentive to comply with the asylum laws of host states, rather than avoid contact with authorities1297 – since that critical objective is achieved as soon as the asylum-seeker submits to the laws of the host state. It also aligns with the interpretation of cognate duties under international human rights law and, critically, avoids conflict with the other Convention rule on freedom of movement, Art. 261298 – a general right to freedom of movement that inheres in refugees “lawfully in” an asylum state.1299 Understanding “regularization” to occur upon admission to a status assessment procedure thus establishes a clear and workable delineation of precisely the kind intended by the drafters between situations in which freedom of movement is governed by Art. 31(2), and those in which Art. 26 applies.1300

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the context of a preliminary interview, the elements of their claim to international protection. However, such detention can only be justified where that information could not be obtained in the absence of detention”: UNHCR, “Guidelines on the Applicable Criteria and Standards Relating to the Detention of Asylum Seekers and Alternatives to Detention” (2012), at [28]. See Chapter 5.2. The only situation in which provisional detention may continue is that set by Art. 9 of the Convention. Where the asylum country faces a “war or other grave and exceptional circumstances,” provisional detention may be continued right up to the point of status verification in the case of an asylum-seeker found to present a risk to national security: see Chapter 3.5.1. Any generally applicable rules on the detention of aliens who pose a threat to national security may, of course, be applied in relation to refugees in conformity with Art. 26. See Chapter 4.2 at note 980. See Vienna Convention, at Art. 31(3)(c) and generally Chapter 2.2. In determining that “an alien who entered the State illegally, but whose status has been regularized, must be considered to be lawfully within the territory [emphasis added],” the UN Human Rights Committee cited as authority its finding that a rejected refugee claimant against whom an expulsion order had been issued but who was allowed to remain in a state party’s territory on humanitarian grounds met the definition of “lawful presence”: UN Human Rights Committee, “General Comment No. 27: Freedom of Movement” (1999), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [4], citing the decision in Celepli v. Sweden, HRC Comm. No. 456/1991, UN Doc. CCPR/C/51/D/456/1991, decided Mar. 19, 1993. If a state’s decision to authorize continued presence despite the issuance of a valid expulsion order amounts to regularization of status, there can surely be no doubt that authorization to remain in a state’s territory for the duration of a refugee status verification procedure also amounts to a form of regularization of status giving rise to lawful, if provisional, presence in that country. The decision to draft what became Art. 31(2) derived from the conviction that “certain provisions should also be included for refugees who had not yet been regularly admitted into a country”: Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.15, Jan. 27, 1950, at 18.

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4.2.4.4 Conditions of Detention While the Refugee Convention does not set standards for the conditions of detention, Art. 10 of the Civil and Political Covenant requires that all detained persons “be treated with humanity and with respect for the inherent dignity of the human person.”1301 This duty extends to any person “deprived of liberty under the laws and authority of the State.”1302 Art. 10 requires states to meet a higher standard than simply the avoidance of the “cruel and inhuman” treatment prohibited by Art. 7 of the Civil and Political Covenant.1303 The Human Rights Committee has determined, for example, that Art. 10 was breached when an individual was returned to immigration detention contrary to expert medical advice.1304 It has also found a violation where a detained person was forced to sleep on the floor of a small cell without medical attention or family contact,1305 as well as in the case of a detainee given only five minutes per day for personal hygiene and five minutes per day of outside exercise.1306 The severe and prolonged overcrowding experienced by refugees detained in, for example, Libya,1307 Malaysia,1308 Papua New Guinea,1309 and Thailand1310 is clearly at odds with this obligation. The relatively detailed attention to specific conditions of detention follows logically from the fact that persons detained by a government are essentially at the complete mercy of the state. Because their vulnerability to harm results specifically from an official 1301 1302

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Civil and Political Covenant, at Art. 10(1). UN Human Rights Committee, “General Comment No. 21: Humane Treatment of Persons Deprived of their Liberty” (1992), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [2]. Schabas, Nowak’s CCPR Commentary, at 275–276. Some cases alleging unacceptable conditions of detention of refugees and migrants have been brought on the basis of Art. 7’s prohibition of cruel, inhuman and degrading treatment or punishment: see e.g. FKAG v. Australia, HRC Comm. No. 2094/2011, UN Doc. CCPR/C/108/D/2094/2011, decided July 26, 2013. “[T]his form of detention was contrary to the advice of various doctors and psychiatrists, consulted by the State party, who all advised that a further period of placement in an immigration detention centre would risk further deterioration of Mr. Madafferi’s mental health. Against the backdrop of such advice and given the eventual involuntary admission of Mr. Madafferi to a psychiatric hospital, the Committee finds that the State party’s decision to return Mr. Madafferi to Maribyrnong and the manner in which that transfer was [e]ffected was not based on a proper assessment of the circumstances of the case but was, as such, disproportionate. Consequently, the Committee finds that this decision and the resulting detention was in violation of article 10, paragraph 1, of the Covenant”: Madafferi v. Australia, HRC Comm. No. 1011/2001, UN Doc. CCPR/C/81/D/1011/2001, decided July 26, 2004, at [9.3]. Luyeye v. Zaïre, HRC Comm. No. 90/1981, UN Doc. CCPR/C/OP/2 at 124, decided July 21, 1983. Párkányi v. Hungary, HRC Comm. No. 410/1990, UN Doc. CCPR/C/41/D/410/1990, decided Mar. 22, 1991. See text at note 915. 1308 See text at note 916. 1309 See text at notes 917–921. See text at note 913.

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decision to detain them, the state responsible for the detention owes detainees a “positive obligation” of care.1311 In particular, a state that elects to detain an individual may not invoke resource insufficiency as a reason for failure to meet the standards of Art. 10.1312 If, for whatever reason, a government is not in a position to ensure that persons denied their liberty are treated with humanity and respect for their inherent dignity, then it may not lawfully order their detention. In keeping with this affirmative obligation to ensure the protection of detainees, UNHCR’s Executive Committee has determined that “refugees and asylum-seekers shall, whenever possible, not be accommodated with persons detained as common criminals, and shall not be located in areas where their physical safety is endangered”1313 – a standard that calls into question the US practice of detaining refugees in ordinary jails in which some facilities are shared by refugees and criminals.1314 More generally, the Executive Committee has concluded that “conditions of detention of refugees and asylum-seekers must be humane.”1315 UNHCR’s guidelines on the detention of asylum-seekers offer a detailed list of specific standards to govern provisional detention,1316 largely derived from the jurisprudence under Art. 1311

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UN Human Rights Committee, “General Comment No. 21: Humane Treatment of Persons Deprived of their Liberty” (1992), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [3]. Art. 10 is “a fundamental and universally applicable rule . . . [T]he application of this rule, as a minimum, cannot be dependent on the material resources available in the State party”: ibid. at [4]. UNHCR Executive Committee Conclusion No. 44, “Detention of Refugees and AsylumSeekers” (1986), at [(f)]. See also UNHCR Executive Committee Conclusion No. 85, “Conclusion on International Protection” (1998), at [(ee)], in which the Executive Committee “[n]ote[d] with concern that asylum-seekers detained only because of their illegal entry or presence are often held together with persons detained as common criminals, and reiterate[d] that this is undesirable and must be avoided whenever possible, and that asylum-seekers shall not be located in areas where their physical safety is in danger”; and UNHCR, “Guidelines on the Applicable Criteria and Standards Relating to the Detention of Asylum Seekers and Alternatives to Detention” (2012), at [48] (“The use of prisons, jails, and facilities designed or operated as prisons or jails, should be avoided. If the asylum-seekers are held in such facilities, they should be separated from the general prison population”). See text at note 912. Indeed, under the Civil and Political Covenant, not even accused criminals may lawfully be detained together with convicted criminals: Civil and Political Covenant, at Art. 10(2)(a). See also Report of the United Nations Working Group on Arbitrary Detention, UN Doc. E/CN.4/1999/63, Dec. 18, 1998: “Custody of [refugees and asylum-seekers shall be] effected in public premises intended for this purpose; otherwise, the individual in custody shall be separated from persons imprisoned under criminal law.” UNHCR Executive Committee Conclusion No. 44, “Detention of Refugees and AsylumSeekers” (1986), at [(f)]. UNHCR, “Guidelines on the Applicable Criteria and Standards Relating to the Detention of Asylum Seekers and Alternatives to Detention” (2012), at [48].

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10(1) of the Civil and Political Covenant,1317 and from the United Nations’ Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.1318 Taken together, these standards require that detained refugees have the right to be in regular contact with persons outside the detention facility1319 (a duty breached by Malaysia’s refusal to allow Rohingya refugees to contact non-governmental organizations);1320 to consult with legal counsel;1321 to receive basic medical care and other necessities of life 1317

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“All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person”: Civil and Political Covenant, at Art. 10(1). As affirmed by the Human Rights Committee, “Article 10, paragraph 1 . . . applies to anyone deprived of liberty under the laws and authority of the State who is held in prisons, hospitals – particularly psychiatric hospitals – detention camps or correctional institutions or elsewhere. State parties should ensure that the principle stipulated therein is observed in all institutions and establishments within their jurisdiction where persons are being held”: UN Human Rights Committee, “General Comment No. 21: Humane Treatment of Persons Deprived of their Liberty” (1992), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [2]. Schabas summarizes the Human Rights Committee’s jurisprudence on Art. 10(1) as establishing a “positive obligation to ensure human dignity. Regardless of economic difficulties, the State must establish a minimum standard for humane conditions of detention . . . In other words, it must provide detainees and prisoners with a minimum of services to satisfy their basic needs (food, clothing, medical care, sanitary facilities, education, work, recreation, communication, light, opportunity to move about, privacy, etc.)”: Schabas, Nowak’s CCPR Commentary, at 276. UNGA Res. 47/173, Dec. 9, 1988, Annex (UN Detention Principles). As Schabas observes, the report proposing what became Art. 10 of the Covenant “made express reference to the Standard Minimum Rules for the Treatment of Prisoners”: Schabas, Nowak’s CCPR Commentary, at 271. “A detained or imprisoned person shall have the right to be visited by and to correspond with, in particular, members of his family and shall be given adequate opportunity to communicate with the outside world, subject to reasonable conditions and restrictions as specified by law or lawful regulations”: UN Detention Principles, at Principle No. 19. See also Principles Nos. 15 and 16, ibid. The UNHCR elaborates that “[f]acilities should be made available to enable such visits. Such visits should take place in private unless there are compelling reasons to warrant otherwise”: UNHCR, “Guidelines on the Applicable Criteria and Standards Relating to the Detention of Asylum Seekers and Alternatives to Detention” (2012), at [48(vii)]. See text at note 833. “A detained person shall be entitled to have the assistance of a legal counsel. He shall be informed of his right by the competent authority promptly after arrest and shall be provided with reasonable facilities for exercising it . . . If a detained person does not have a legal counsel of his own choice, he shall be entitled to have a legal counsel assigned to him by a judicial or other authority in all cases where the interests of justice so require and without payment by him if he does not have sufficient means to pay”: UN Detention Principles, at Principle No. 17. Furthermore, “[a] detained or imprisoned person shall be entitled to communicate and consult with his legal counsel . . . A detained or imprisoned person shall be allowed adequate time and facilities for consultations with his legal counsel . . . The right of a detained or imprisoned person to be visited by and to consult and communicate, without delay or censorship and in full confidentiality, with his legal counsel may not be suspended or restricted save in exceptional circumstances, to be specified by law or lawful regulations,

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(a standard not respected when, for example, Hungary failed to provide heating1322 in refugee detention facilities);1323 to benefit from opportunities for exercise and recreation;1324 to enjoy religious freedom;1325 to access education, culture, and information;1326 and to be assured of assistance to dependent family members.1327 These basic qualitative standards must, of course, be interpreted with due regard to the particular needs of children, women, sexual minorities, and others who may be particularly vulnerable to harm while in detention1328 – a duty breached by Mexico1329 and the United Kingdom1330 when they detained children seeking asylum in a shared facility with adults.

4.3 Physical Security Those who enjoyed relative privilege and safety before becoming refugees usually find their security diminished as a result of the refugee experience itself. For those who were already disfranchised, refugeehood likely exposes them to even greater

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when it is considered indispensable by a judicial or other authority in order to maintain security and good order”: UN Detention Principles, at Principle No. 18. See also UNHCR, “Guidelines on the Applicable Criteria and Standards Relating to the Detention of Asylum Seekers and Alternatives to Detention” (2012), at [47(ii)]. See text at note 911. “A proper medical examination shall be offered to a detained or imprisoned person as promptly as possible after his admission to the place of detention or imprisonment, and thereafter medical care and treatment shall be provided whenever necessary. This care and treatment shall be provided free of charge”: UN Detention Principles, at Principle No. 24. See also Principles Nos. 25 and 26: ibid. UNHCR suggests that the basic necessities to which asylum-seekers should have access include “beds, climate-appropriate bedding, shower facilities, basic toiletries, and clean clothing”: UNHCR, “Guidelines on the Applicable Criteria and Standards Relating to the Detention of Asylum Seekers and Alternatives to Detention” (2012), at [48(x)]. “The opportunity to conduct some form of physical exercise through daily indoor and outdoor recreational activities needs to be available; as well as access to suitable outdoor space, including fresh air and natural light. Activities tailored to women and children, and which take account of cultural factors, are also needed”: UNHCR, “Guidelines on the Applicable Criteria and Standards Relating to the Detention of Asylum Seekers and Alternatives to Detention” (2012), at [48(viii)]. “The right to practice one’s religion needs to be observed”: ibid. at [48(ix)]. “A detained or imprisoned person shall have the right to obtain within the limits of available resources, if from public sources, reasonable quantities of educational, cultural and informational material, subject to reasonable conditions to ensure security and good order in the place of detention or imprisonment”: UN Detention Principles, at Principle No. 28. “The appropriate authorities shall endeavour to ensure, according to domestic law, assistance when needed to dependent and, in particular, minor members of the families of detained or imprisoned persons and shall devote a particular measure of care to the appropriate custody of children left without supervision”: UN Detention Principles, at Principle No. 31. UNHCR, “Guidelines on the Applicable Criteria and Standards Relating to the Detention of Asylum Seekers and Alternatives to Detention” (2012), at [49]–[65]. See text at note 923. 1330 See text at note 924.

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risks of physical harm.1331 As Human Rights Watch observed, “[w]omen refugees are raped because they are refugees, . . . and because they are women.”1332 Physical security is frequently jeopardized during the process of flight to a state of refuge. A military helicopter off the Yemeni coastline killed more than forty Somali refugees traveling by boat.1333 Many Central American refugees traveling overland to North America have been subjected to extortion, kidnaping, and physical abuse in transit countries, particularly in Mexico.1334 An especially notorious case was the series of attacks between 1980 and 1984 perpetrated by Thai pirates on Vietnamese “boat people” attempting to pass through the Gulf of Thailand and South China Sea en route to Hong Kong, the Philippines, and other asylum countries. In the words of one eyewitness, While all the men were confined to the hold of the refugee boat . . . some, if not all of the approximately 15–20 women and young girls who were kept in 1331

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Some persons who were already vulnerable – typically women, children, older persons, the disabled, and the poor – may find that becoming a refugee is a source of enhanced protection, particularly in cases where they are received in a society that is more socially inclusive. It may also be the case that the actual conditions of life for asylum-seekers may result in a revaluation of the relative importance of the skills and abilities of traditionally marginalized groups. For example, success in coping with camp life frequently puts a premium on activities within the traditional realm of “women’s work,” such as foodgathering, cooking, and the establishment and maintenance of living quarters. In such circumstances, women refugees have reported that the relative insecurity of life as an asylum-seeker has, perhaps ironically, been a source of personal empowerment for them. See e.g. G. Garcia Hernandez and N. Garcia, “Mama Maquin Refugee Women: Participation and Organization,” in W. Giles et al. eds., Development and Diaspora: Gender and the Refugee Experience 258 (1996), at 262. Human Rights Watch, Human Rights Watch Global Report on Women’s Human Rights (1995), at 101. The same report notes that “[s]trong cultural stigma attached to rape further intensifies the rape victims’ physical and psychological trauma. Women in refugee and displaced persons camps who acknowledge being raped may be ostracized, or even punished, by their families”: ibid. at 103. A. Zeyad, “Somalis Fleeing Yemen War Caught in Nighttime Sea Attack,” Reuters, Mar. 30, 2017. In highlighting the particular vulnerability of persons transiting through Mexico, the Inter-American Commission on Human Rights noted “multiple cases in which migrants are abducted, driven into forced labor, murdered, disappeared and, in the case of women, frequently the victims of rape and sexual exploitation by organized crime . . . [I]n a considerable number of cases, State agents – members of the various police forces or personnel of the National Institute of Migration – have been directly involved in the commission of the crimes and human rights violations listed above.” The scale and systemic nature of the attacks led the Commission to conclude that “[a]t the present time, the extreme vulnerability of migrants and other persons to the heightened risks of human mobility in Mexico is one of [the worst] human tragedies in the region”: InterAmerican Commission on Human Rights, Human Rights of Migrants and Other Persons in the Context of Human Mobility in Mexico, OEA/Ser.L/V/II., Doc. 48/13 (2013), at [5]. See also “Report of the Special Rapporteur of the Human Rights Council on Extrajudicial, Summary or Arbitrary Executions,” UN Doc. A/72/335, Aug. 15, 2017, at [24], [44].

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the cabin of the boat were raped. The youngest of these girls was around 12 years old. Soon afterwards, the pirates set the boat on fire with all the Vietnamese on board. In the ensuing panic, the Vietnamese grabbed buoys, cans and floats, and plunged into the sea. The crews of the pirate boats then used sticks to prevent them from clinging to floating objects.1335

Smuggling and trafficking networks “at the core of the mass movement of people” also pose great risk to refugees’ physical security.1336 Egyptian and Sudanese traffickers have employed torture methods to extract exorbitant sums from the relatives of refugees traveling to seek protection;1337 those whose families are unable to pay may be held for months or even killed.1338 Indeed, “[i]n some cases, these crimes are facilitated by collusion between traffickers and Sudanese and Egyptian police and the military who hand victims over to traffickers in police stations, turn a blind eye at checkpoints, and return escaped trafficking victims to traffickers.”1339 Mass graves discovered in Malaysia1340 and Thailand1341 demonstrate the perils of such practices. 1335 1336

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“A Tale of Horror,” (1989) 65 Refugees 25. “Report of the Special Rapporteur of the Human Rights Council on Extrajudicial, Summary or Arbitrary Executions,” UN Doc. A/72/335, Aug. 15, 2017, at [43]. “Smugglers and traffickers are an integral component of this movement; without them, refugees and migrants are generally unable to navigate the barriers many States erect to deter entry. Some smugglers are linked to transnational criminal networks while many are not. With the multiplication of predatory actors, the risks are increasing. There are reports of abductions; people being detained or kidnapped for ransom; forced labour; torture, including rape; and people being thrown off boats or left behind in deserts”: “Report of the Special Rapporteur of the Human Rights Council on Extrajudicial, Summary or Arbitrary Executions,” UN Doc. A/72/335, Aug. 15, 2017, at [9]. “A common technique traffickers use is to hold a mobile phone line open to their hostages’ relatives as they physically abuse their victims. The relatives hear the screams and the kidnappers demand the ransom for the victims’ release. Many Eritreans have told the UN, non-governmental refugee organizations, activists, and journalists of their experiences of rape, burning, mutilation and deformation of limbs, electric shocks, and other forms of violence”: Human Rights Watch, “‘I Wanted to Lie Down and Die’: Trafficking and Torture of Eritreans in Sudan and Egypt,” Feb. 11, 2014, at 1; see also ibid. at 22–49. Ibid. at 37. 1339 Ibid. at 4. B. Lih Yi, “Malaysia Mass Graves: Villagers Tell of Migrants Emerging from Secret Jungle Camps,” Guardian, May 26, 2015. Malaysia has delayed investigating these deaths until recently. “Malaysia will investigate allegations of a police cover-up in the 2015 discovery of mass graves that held corpses of scores of Rohingya Muslims from Myanmar and Bangladeshi migrants at human-trafficking camps in the jungle, a senior government official said Thursday. Deputy Home Minister Nur Jazlan Mohamad spoke to BenarNews, an RFAaffiliated online news service, after a local newspaper, the New Straits Times (NST), published an exposé alleging that Malaysian authorities had known about the graves and camps close to Wang Kelian, a town near the Thai border in the northern state of Perlis, months before police publicly revealed the grim discovery”: “Malaysia Will Probe Alleged Cover-Up in Discovery of Mass Graves, Minister says,” Radio Free Asia, Dec. 22, 2017. T. Fredrickson, “Thailand: Mass Graves of Rohingya found in Trafficking Camp,” Bangkok Post, May 1, 2015. Thailand held trials for, and convicted, traffickers (and a

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Even refugees who manage to reach the border of an asylum country are not spared physical abuse.1342 Sometimes border guards take advantage of the refugees’ predicament and vulnerability.1343 For example, refugees attempting to enter Bulgaria have faced beatings and robberies at the hands of border police before being turned away.1344 US border officials have employed such tactics as the “chase and scatter” method,1345 the sabotage of humanitarian supplies placed near the border,1346 and, for those who succeed in entering its territory, lateral repatriation to dangerous or unfamiliar areas.1347 Turkish

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senior army general) for involvement in the mass killings: O. Holmes, “Thailand Convicts Traffickers after 2015 Mass Graves Discovery,” Guardian, July 19, 2017. The United Nations Special Rapporteur on the Rights of Non-Citizens has determined that “[t]here are reliable reports of . . . police violence, intimidation, and bullying of asylum-seekers”: “Final Report of the Special Rapporteur on the Rights of Non-Citizens: Addendum: Examples of Practice in Regard to Non-Citizens,” UN Doc. E/CN.4/Sub.2/ 2003/23/Add.3, May 26, 2003, at [10]. As UNHCR has observed, women and girls are particularly at risk in these circumstances. “Border guards in some countries have detained refugee women or girls for weeks for their sexual use. Women have been raped by soldiers while crossing a border, and in some cases abducted and prostituted by them . . . Unaccompanied women asylum-seekers arriving by air in a country of asylum, forced to spend extended periods of time in the holding area of an airport before being transferred to a hotel where they were guarded around the clock, have been raped by their guards while the authorities were deciding to which country to expel them”: UNHCR, “Note on Certain Aspects of Violence Against Women,” UN Doc. A/AC.96/822, Oct. 12, 1993, at 7. R. Lyman, “Bulgarian Border Police Accused of Abusing Refugees,” New York Times, Dec. 23, 2015. According to one report detailing the plight of those attempting to cross in wilderness regions, “Border Patrol agents chase border crossers through the remote terrain and utilize the landscape as a weapon to slow down, injure, and apprehend them . . . [Such] chase[s] lead to heat exhaustion and dehydration, blisters and sprains, injuries due to falls, and drownings”: La Coalicion de Derechos Humanos and No More Deaths, “Part I: Deadly Apprehension Methods: The Consequences of Chase and Scatter in the Wilderness,” Dec. 2016, at 3. The agents also “regularly assault border crossers at the culmination of a chase. Assault then contributes to a violent cycle in which border crossers flee from both interdiction and potential serious injury and death and agents, in turn, often respond with escalating aggression . . . [C]hase in remote areas commonly results in excessive use of force. In our survey, tackles, beatings, Tasers, dog attacks, and assault with vehicles were all reportedly employed by the Border Patrol against border crossers during chase”: ibid. at 3. “If found, the disappeared turn up in detention centers, in morgues, or skeletonized on the desert floor; many human remains are never identified. Thousands more are never located”: ibid. at 4. The group estimates that in the 2015 calendar year alone, it opened or investigated over 1,200 cases of missing persons attempting to cross the border. S. Lemons, “Border Patrol Agent Steals Blankets, Provisions Meant for Migrants, says No More Deaths,” Phoenix New Times, Jan. 17, 2013. No More Deaths, “A Culture of Cruelty: Abuse and Impunity in Short-Term US Border Patrol Custody,” 2011, at 29–32. See also N. Miroff, “Lateral Deportation: Migrants Crossing the Mexican Border Fear a Trip Sideways,” Washington Post, Feb. 12, 2013.

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officials have shot and killed refugees who were attempting to escape northern Syria,1348 while Hungarian border guards posed for “selfies” with arriving refugees before taking their clothes and using dogs to chase them back across the border.1349 And the Malaysian government paid handsome bonuses to its officials to cane arriving refugees as punishment for their illegal entry.1350 Yet the evidence suggests that the greatest risk of physical abuse actually arises once refugees reach the camps where they are in principle to be protected. Sometimes camp officials or employees are directly responsible. Iranian refugees in Camp Ashraf were repeatedly attacked by Iraqi security forces and suffered dozens of deaths and injuries.1351 Many Cambodian refugees in camps along the Thai–Cambodian border were tortured and killed with impunity by 1348

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Human Rights Watch, “Turkey: Border Guards Kill and Injure Asylum Seekers,” May 10, 2016. See also J. Dettmer, “Monitoring Group Accuses Turkish Border Guards of Killing 163 Syrian Refugees,” Voice of America, Dec. 6, 2016. According to a researcher for Human Rights Watch, the guards “‘made people stand in front of a camera holding up a piece of paper listing that they had irregularly crossed into Hungary . . . Part of that statement on film would say police officers have behaved nicely and appropriately. Once they stopped filming, a lot of migrants said the beatings would ensue so there would be no marking on the official video.’ She said the ‘staged’ filming was allowing the Hungarian government to refuse to properly investigate the allegations, adding: ‘The fact nothing is being done to stop it is completely unacceptable’”: L. Dearden, “Hungarian Border Guards ‘Taking Selfies with Beaten Migrants’ as Crackdown against Refugees Intensifies,” Independent, Mar. 4, 2017. When temperatures reached -20°C in early 2017, “a new form of torment was reported. Refugees said border police would take their drinking water and pour it over them before abandoning them in the snow, sometimes taking coats, clothes and shoes.” Those apprehended were then returned to Serbia, from which they had entered, sometimes completely naked: ibid. “In a response to a parliamentary question on 9 March, Home Minister Hishammuddin Hussein disclosed that Malaysia had caned 29,759 foreigners between 2005 and 2010 for immigration offences alone . . . Since 2002, when Parliament amended the Immigration Act 1959/63 to make immigration violations such as illegal entry subject to caning, tens of thousands of refugees and migrant workers have been caned”: Amnesty International, “Malaysia: Government Reveals Nearly 30,000 Foreigners Caned,” Mar. 10, 2011. Amnesty International also reports a robust system of financial incentives that result in bonuses and bribing: “In 2005, the government increased the bonus paid to caning officers to 10 ringgit (US$3.20) a stroke, up from 3 ringgit previously . . . By executing 200 strokes a month, a caning officer can supplement his base salary by 24,000 ringgit (US $7,680), or roughly equivalent to Malaysia’s annual per capita GDP . . . According to exprisoners interviewed by Amnesty International, caning officers exploit a loophole in the caning procedure: a stroke that misses is still counted as a stroke. For a bribe, prisoners said, some caning officers will agree to miss a stroke . . . The “fee” charged, however, may also depend on the victim’s ability to pay. The sister of a wealthy businessman in Kuala Lumpur told Amnesty International that she paid US$6,000 to reduce the caning of her brother after he was convicted for criminal breach of trust. In comparison, prisoners such as refugees, migrants and drug users have little money. As a result, they said they could not afford to mitigate their caning through bribery”: Amnesty International, “A Blow to Humanity: Torture by Judicial Caning in Malaysia” (Dec. 2010), at 29. “Iraq Raid on Iranian Exiles’ Camp Ashraf Killed 34,” BBC, Apr. 14, 2011.

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Thai military officers or the Khmer Rouge officials to whom the Thais entrusted responsibility for running some camps.1352 In five extrajudicial killings of refugees reported by Amnesty International in 1988, “the victims were apparently executed . . . simply because they were found outside the camp boundaries where they had gone to collect food, firewood or building materials, or to engage in barter with Thai farmers or merchants for needed commodities.”1353 Hundreds of Rwandan Hutu refugees were beaten or killed by Congolese security forces in 2009.1354 And a series of Lebanese raids on refugee camps led to four deaths under questionable circumstances; officials later attributed the deaths to “pre-existing conditions.”1355 In 2016, a leaked cache of documents from Australia’s offshore processing center on Nauru revealed security misconduct ranging from threatening to kill a young boy to conditioning certain privileges on sexual favors.1356 So dire were the conditions that desperate refugees sewed their lips shut, partook in hunger strikes, and engaged in various forms of self-harm.1357 Perhaps the most prevalent form of abuse by officials administering refugee camps is rape and sexual assault. For example, members of Angolan security forces have routinely engaged in sexual violence against Congolese refugee 1352

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“Many of the human rights abuses that characterized the population removals appear to be regular occurrences inside the refugee camps administered by the Khmer Rouge: forced labor, denial of medical care, denial of food as a means of coercion, use of civilians against their will for military purposes, and harsh penalties, including execution, for those who disobey orders”: Asia Watch, “Khmer Rouge Abuses Along the Thai–Cambodian Border” (1989), at 23. Amnesty International, “Thailand: Extrajudicial Executions of Kampuchean Refugees” (1988), at 1. See also T. Banbury, “Kampuchean Displaced Persons in Thailand: Between the Devil and the Deep Blue Sea” (1988), at 27, in which the author details murders, rapes, robberies, and beatings carried out by both the Khmer Rouge forces in charge of some of the refugee camps and by the Thai military forces. US Department of State, “2009 Human Rights Report: Democratic Republic of the Congo,” Mar. 11, 2010. Such attacks continued; in 2017, for example, members of the national army shot to death thirty-nine Burundian refugees protesting the detainment and possible repatriation of four members of their community: A. Essa and S. Wembi, “Why were 39 Burundian Refugees Shot Dead in the DRC?” Al Jazeera, Sept. 19, 2017. According to the Interior Minister, the arrests were made as part of a security sweep in response to recent attacks on the city of Arsal. As part of his explanation, he emphasized that the operation was not a “‘campaign against the displaced and refugees,’ but against the terrorists” and insisted that “‘all security precautions are taken to prevent any terrorist plot from occurring. The fear of sleeper cells is present all over the world’”: Al Arabiya English, “Lebanese Interior Minister: Our Army is not Targeting Syrian Refugees,” July 4, 2017. See also “Five Suicide Blasts Shake Lebanese Border Town of Arsal,” TRT World, June 30, 2017. P. Farrell, N. Evershed, and H. Davidson, “The Nauru Files: Cache of 2,000 Leaked Reports Reveal Scale of Abuse of Children in Australia Offshore Detention,” Guardian, Aug. 10, 2016. L. Dearden, “Leaked Documents Reveal ‘Abuse and Mistreatment’ of Refugees at Australian Offshore Detention Centre,” Independent, Aug. 10, 2016.

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women, often in the presence of their children and others.1358 Sexual abuse has also occurred at the hands of relief workers. In a 2002 report on sexual exploitation throughout Western Africa, UNHCR and Save the Children (UK) found that workers were able to abuse their power in large measure because of the endemic scarcity of food and other resources that characterizes life in so many refugee camps.1359 Although NGOs have since been held to higher account for the actions of their workers – as is evidenced, for example, by the European Commission’s suspension of funding to a US aid agency pending an investigation of two employees accused of sexual exploitation in Greek camps1360 – survivors continue to face difficulties in receiving adequate protection.1361 1358

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According to Human Rights Watch, “members of the security forces – including border police, rapid intervention police, and immigration officials – routinely commit violence against female Congolese migrants in a number of transit prison facilities where migrants are detained before deportation, particularly in the border provinces of Cabinda and Lunda Norte. Corroborated abuses targeting women include rape, sexual coercion, beatings, deprivation of food and water, and – in some cases – sexual abuse in the presence of children and other female inmates. In a positive step since 2011, the government has undertaken efforts to build new transit prisons with more humane conditions for migrants. However, Human Rights Watch is not aware of any credible and thorough investigation and prosecution of those security forces officials who were responsible for serious human rights violations against Congolese migrants during expulsions from Angola”: Human Rights Watch, “Universal Periodic Review: Angola,” Feb. 17, 2014. UNHCR and Save the Children (UK), “Note for Implementing and Operational Partners on Sexual Violence and Exploitation: The Experience of Refugee Children in Guinea, Liberia and Sierra Leone based on Initial Findings and Recommendations from Assessment Mission, 22 October – 30 November 2001,” Feb. 2002. A. Vogt, “Aid Agency’s Funding Suspended after Staff are Accused of Sexually Exploiting Refugees,” Telegraph, June 2, 2017. A 2008 study by Humanitarian Accountability Partnership International found that “‘[t]o complain or not to complain’ is still a conundrum for most of the beneficiaries with whom we spoke. Beneficiaries felt they had few channels through which to complain. Options of complaints mechanisms are limited to dropping a note in a complaints box or reporting to an individual or chain of people, each of whom will have to choose to take the complaint seriously and pass it ‘up’ for action. Beneficiaries worry particularly about the lack both of confidentiality and of security assurances should they complain. Many do not want to make problems for fellow refugees and actually see the complainant as the troublemaker who risks creating conflict within their community by complaining. Others stated they feared losing aid if they complained about humanitarian agencies’ actions. Humanitarian staff (volunteer, incentive and salaried) expressed reluctance to report on fellow aid workers. Fear of retaliation is pervasive and prohibits most would-be complainants. Some, although very few, participants were willing and ready to report alleged sexual exploitation and abuse related misconduct by humanitarian workers (local, national or international)”: Kirsti Lattu, “To complain or not to complain: Still the question,” Humanitarian Accountability Partnership International, June 2008, at 3. Save the Children identifies three protection gaps contributing to this problem: inadequate support and encouragement to speak out about abuse, the need for stronger leadership in implementing new procedures, and the lack of investment in addressing abuse at all levels: C. Csáky, “No One to Turn to: The Under-reporting of Child Sexual Exploitation and Abuse by Aid Workers and Peacekeepers” (2008), at 1.

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Until its closure in 2016, sexual abuse at the hands of unpaid charity workers was rife in the Calais “jungle,” enabled by the lack of monitoring or enforcement in a place described as a “black hole in one of the largest economies on the planet.”1362 Yet much of the danger within refugee camps emanates not from authorities, but from fellow camp residents. One of the most horrifying examples was the reign of terror that persisted for Rwandan refugees inside Zaïre (now the Democratic Republic of Congo), where armed refugees continued their violence and extermination of Tutsis and moderate Hutus from within the borders of the camps themselves.1363 Risks to physical security can also be the by-product of conditions of confinement. Overcrowding, failure to treat refugees with dignity, and the absence of meaningful work or study opportunities often set the stage for sexual and other forms of violence. For example, violence between Afghans and Kurds in an overcrowded French refugee camp ended with a fire that forced over 1,500 to flee.1364 Those who identify as members of sexual minorities may face heightened violence and vulnerability. As observed in one report on Bhutanese refugees in Nepal, “[s]exual abuse is common, but often goes unreported because the right questions are not being asked, and because survivors of sexual violence are reluctant to report events 1362

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According to one charity leader, aid organizations often find themselves unable to expel unaffiliated volunteers. When speaking of one such volunteer, she observed that “[h]e initially worked with another charity called Auberge des Migrants. But when he was reported for inappropriate behaviour with female refugees they told him to leave. He then came here for a day and they phoned us up and warned us. So we told him to leave, but then he went to the camp on his own and we had no power to force him out. Luckily a couple of our male volunteers went and spoke to him and persuaded him to leave. So he’s gone now. But it’s extremely difficult for us to control. A fifth of the volunteers are here independent of any organization”: M. Bulman, “Calais Jungle Volunteers Accused of ‘Sexually Exploiting’ Camp’s Refugees,” Independent, Sept. 21, 2016, quoting Clare Mosely, founder of Care4Calais. Further difficulties stem from the camp’s informal status and its resulting lack of monitoring: “The policing in refugee camps is generally down to the state or UNHCR on the ground. But in the case of Calais, in the informal, irregular setting, this all gets more difficult . . . There’s lack of monitoring. It all stems from the fact that the Jungle has been this ignored black hole in one of the largest economies on the planet”: ibid., quoting Ruairidh Valler, international media manager of Save the Children. African Rights, Rwanda: Death, Despair and Defiance (1994) (African Rights, Rwanda), at 656–657. According to government employees, the fight broke out following the closure of the camp in Calais: “until November, [the Grande-Synthe camp’s] population had consisted mainly of Iraqis, Kurds and Syrians. The closing of the Calais camp led to the arrival of Afghans in Grande-Synthe, creating overpopulation and tensions with the Kurds. ‘In the last two months, we noticed several incidents between the two communities,’ Mr. Caremelle said. ‘The Afghans were housed in the kitchen quarters of the camp, and they started to transform the kitchen into their dormitories. That’s what yesterday’s fight was about’”: M. Schreuer, “A Fight, and a Fire, Roll through a Migrant Camp in France,” New York Times, Apr. 11, 2017.

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that will ‘out’ them to legal authorities.”1365 Widespread reports of violence in camps have prompted at least two European states to open shelters specifically for gay, lesbian and other sexual minority refugees.1366 Faulty design and management of the camps can exacerbate protection problems. There is increased likelihood of attack where communal latrines are sited far from living quarters, where there is poor lighting, and where night patrols are inadequate.1367 Shelters lacking gender-separated toilets and sleeping quarters in Germany and Sweden have led to rape and other forms of sexual violence, whether at the hands of fellow residents or the personnel tasked with protecting them.1368 At one such camp in France, adult diapers were the product most in demand by women seeking to avoid the bathrooms at night.1369 Refugee women from Darfur have also faced rape and assault when venturing outside camps in eastern Chad to search for firewood, water, straw, and other necessities.1370 Those fetching wood at Tanzania’s Nduta camp are similarly vulnerable to violence, both 1365 1366

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K. Knight, “The Plight of LGBTI Asylum Seekers, Refugees,” IRIN News, May 7, 2013. “Gay Rights Group to Open Center for GLBT Asylum Seekers in Berlin,” Reuters, Jan. 22, 2016; see also L. D. Veron, “Bologna Opens First Italian Center for LGBT Refugees, following German Example,” Towleroad, Jan. 10, 2017. S. Forbes Martin, Refugee Women (1991) (Forbes Martin, Refugee Women), at 21. According to one study, “reception and accommodation centers in both Germany and Sweden have severe problems related to overcrowding. Often there is a lack of any private spaces for individuals or families, leaving women and girls unable to change their clothes in private or remove their hijabs. The [Women’s Refugee Commission] also noted that not all accommodation centers offer sex-separated toilets and shower facilities with locking doors to ensure privacy and safety for women and girls. One female asylumseeker in Stockholm described living for a month in a large hall with many other asylumseekers, with only pieces of cardboard between beds. The [Commission] was told of other centers where there are no walls or dividers of any kind”: Women’s Refugee Commission, “Falling through the Cracks: Refugee Women and Girls in Germany and Sweden,” Mar. 2016, at 6–7. Risk of attack increases during the night, as reported one study on shelter conditions in Berlin: “At night, the volunteers and social workers go home, leaving behind only security guards. But many women view the guards as a threat rather than a form of protection. Even in shelters with separate rooms for women, they said they did not feel safe, since security workers and shelter managers have master keys that give them access to all the rooms. The official reason for this is fire safety, but women said the keys are used to enter rooms even when there is no immediate danger. All of the women IRIN spoke to were scared of going to the toilet at night. Zina, 49, a resident of the Tempelhof shelter, said: ‘I often have strong pain because I do not use the toilet at night. I am frightened.’ Both Zina and Sally felt intimidated by guards who made inappropriate noises or gestures when they passed them on their way to the toilets. On one occasion, a guard even followed Sally in”: P. Müller, D. Sukharchuk, and Y. Polat, “Women Refugees at Risk of Sexual Assault in Berlin Shelters,” IRIN News, May 10, 2017. M. Townsend, “Women and Children ‘Endure Rape, Beatings and Abuse’ inside Dunkirk’s Refugee Camp,” Guardian, Feb. 11, 2017. Amnesty International, “‘No Place for us Here’: Violence against Refugee Women in Eastern Chad,” Sept. 2009, at 11–12. “Beyond the widespread silence of rape survivors and the difficulties in identifying the perpetrators, there is a lack of accountability and impunity for sexual violence committed against refugee women in and outside the camps.

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from fellow Burundian refugees and the locals who wait for them in the woods.1371 Closed detention facilities are particularly likely to give rise to risks to physical security, with women and children the least protected and most vulnerable portion of the population.1372 As Susan Forbes Martin explains, “[t]here is evidence that psychological strains for husbands unable to assume normal cultural, social and economic roles can result in aggressive behavior towards wives and children. The enforced idleness, boredom and despair that permeate many camps are natural breeding grounds for such violence.”1373 At the Zaatari camp in Jordan, for example, the inability of men to provide for their families and lack of physical space have been cited as triggering a “rapid escalation” in domestic violence.1374 Beyond physical security risks from officials and fellow refugees, refugees living in camps are frequently “sitting ducks” for armed attacks. Refugees may simply be caught up in the horrors of an ongoing war, as was the case when Islamic State militants attacked Iraqi refugees and others near the Al Hol refugee camp in Syria, leading to the deaths of dozens, including children.1375 But refugees may also be the direct objects of attack by their country of origin. For example, an Antonov plane from Sudan bombed the Yida refugee camp in South Sudan.1376 Such attacks are especially common when refugee camps are located near insecure border areas.1377 Perhaps most notoriously, refugee camps and settlements across Southern Africa were often attacked by agents of the apartheid-era South African government. Between 1974 and 1986, more than 5,000 refugees from South Africa were systematically killed in camps inside Mozambique and Zambia, as well as in their homes in Botswana, Lesotho, Swaziland, and Zimbabwe.1378 Rebels fighting the Liberian

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Some victims allege that some local authorities and camp leaders do not take cases of rape and other violence against women and girls seriously”: ibid. at 12. R. Sanghani, “I Became a Child Refugee to Escape Rape. It Didn’t Work,” Telegraph, Oct. 12, 2016. Lawyers’ Committee for Human Rights, Inhumane Deterrence: The Treatment of Vietnamese Boat People in Hong Kong (1989), at 14–18. Forbes Martin, Refugee Women, at 21. See also Helton, “Thailand,” at 33: “Overcrowding, shortages of food and water, stress and the constant fear of harassment of resistance elements within the camp, have created a deteriorating social situation. Incidents of domestic violence and suicide attempts have risen dramatically.” K. Leigh, “Domestic Violence on the Rise among Syrian Refugees,” New York Times, Aug. 29, 2014. A. Barnard, “Islamic State Attack Kills Dozens Near Syria Refugee Camp,” New York Times, May 2, 2017. “Sudan ‘Bombs Refugees’ in South Sudan’s Unity State,” BBC, Nov. 11, 2011. R. Gorman, Mitigating Misery (1993), at 173–174. E. Mtango, “Military and Armed Attacks on Refugee Camps,” in G. Loescher and L. Monahan eds., Refugees and International Relations 92 (1990) (Mtango, “Armed Attacks”), at 93.

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government attacked Liberian refugees left unprotected just inside the border of Côte d’Ivoire.1379 Hundreds of thousands of refugees from Sierra Leone were required to live in isolated camps in Guinea near the border with their country of origin. Those camps frequently came under attack in cross-border excursions by rebels and government-sponsored militias,1380 forcing the UN drastically to cut back the delivery of vital supplies. As one refugee remarked, “It is better to die at home than die in Guinea . . . We are caught in a death trap here. Both sides use us as human shields. We are surrounded by guns.”1381 The risk of attack may come from bandits or armed bands, particularly where refugees are located in remote areas.1382 Armed combatants, many of them members of the National Liberation Forces, killed over 150 Congolese refugees at a camp next to the Burundian capital; five years later, none of the attackers had been held accountable.1383 Nigerian refugees in western Chad have suffered suicide bombings claimed by Boko Haram,1384 and efforts to relocate those in Cameroon away from the border were hampered by Nigerian insurgents.1385 The Ugandan rebel group “Lord’s Resistance Army” massacred Sudanese 1379

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“In June 1995, the worst single cross-border attack took place at Guiglo, where 32 people died . . . UNHCR appears to have made no effort to persuade the Ivorian authorities that border settlements are unsafe for refugees, and apparently supports the policy that they should not receive assistance outside the border zone d’accueil”: Lawyers’ Committee for Human Rights, African Exodus (1995), at 75. Renewed fighting has since led to comparable concerns. “Liberian refugees are being indiscriminately associated with the armed opposition in Côte d’Ivoire . . . They are being killed both by Ivorian security forces and groups of civilians, some of them armed by the government”: Amnesty International, “Côte d’Ivoire: Liberian Refugees at Imminent Risk,” Feb. 20, 2003. (1999) 50 JRS Dispatches (May 31, 1999). D. Farah, “For Refugees, Hazardous Haven in Guinea,” Washington Post, Nov. 6, 2000, quoting Ibrahim Suri Jollah, who had lived at Kaliah II camp for three years. UNHCR, “Note on Certain Aspects of Violence Against Refugee Women,” UN Doc. A/ AC.96/822, Oct. 12, 1993, at 8. “Tutsis Massacred in Burundi Camp,” BBC, Aug. 14, 2004. On the fifth anniversary of the Gatumba massacre, Human Rights Watch reported that “[t]he government has shown little political will to hold accountable those alleged to have committed these crimes. The vast majority of rebels and soldiers who were arrested at various times during the conflict – including some suspected of murder – were released without trial by presidential decrees in 2006 and 2009 granting ‘provisional immunity’ to perpetrators of ‘political crimes.’ Burundian and UN representatives have been trying since March 2006 to agree on plans first set forth by the Arusha Peace Accord in 2000 to establish the truth and reconciliation commission and a special tribunal within the Burundian judicial system. Despite commitments made to high-ranking UN officials . . . Burundian officials continue to reject the UN’s call for an independent prosecutor for the tribunal”: Human Rights Watch, “Burundi: Seek Justice for War Crimes Victims,” Aug. 13, 2009. “Suicide Bombers Kill at least 38 at Market and Refugee Camp in Chad,” New York Times, Oct. 10, 2015. “Cross-Border Raids Hinder Relocation of Nigerian Refugees in Cameroon,” UNHCR, Nov. 4, 2014.

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refugees in northern Uganda.1386 Bandits attacked Burundian refugees at the remote Mtabila refugee camp in Tanzania. They targeted both the Tanzanian police working there and the refugees responsible for security, as well as their family members.1387 The Mukhtar Army was responsible for the deaths of twenty-three Iranians when it fired rockets at the Camp Liberty facilities near Baghdad in 2015.1388A far-right mob in Greece hurled rocks and Molotov cocktails at a camp in Chios, forcing dozens to flee.1389 While refugee camps, particularly those located near insecure borders, present the greatest risk to the physical security of refugees, even refugees allowed to move freely within asylum countries often remain at risk of physical attack. Refugees in Russia, particularly those with non-Slavic features, have been regularly beaten by police and neo-Nazis; rather than seeking to hold the attackers accountable, authorities have usually either failed to prosecute or sought minimal sentences.1390 There have been numerous reports of 1386

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“At Achol Pii, home to more than 16,000 people fleeing the war zones of southern Sudan, refugees were shot at point-blank range or cruelly hacked to death with machetes. Food was looted and more than 300 huts burned down”: Amnesty International, “Sudan: Amnesty International Condemns ‘Callous and Calculated’ Killings by Ugandan Rebels,” July 18, 1996. Such attacks continued for years; for example “[i]n early July [2003], LRA forces attacked a refugee camp in Adjumani, killing six refugees, and causing over half of the twelve thousand inhabitants to flee. On August 5, an LRA raid on the Achol Pii settlement in Pader district resulted in the deaths of about sixty people. The rebels looted all the recently-delivered food, and burned what they could not carry. They forced the camp’s twenty-four thousand refugees and relief staff to flee the site”: Human Rights Watch, World Report 2003 (2003), at 89. More generally, the continued brutality of the group led UN Secretary-General Ban Ki-moon to declare in 2013 that it was responsible for the deaths of over 100,000 during its twenty-five-year reign: “LRA Has Killed over 100,000,” New Vision, May 21, 2013. “Curfew Continues at Refugee Camps,” UN Integrated Regional Information Networks, Apr. 3, 2003. Similar concerns arose at refugee camps in the Kakuma area: (2003) 127 JRS Dispatches (Feb. 28, 2003). O. Al-Jawoshy and M. R. Gordon, “Iran-Backed Militia Claims Responsibility for Attack on Iraqi Camp,” New York Times, Oct. 30, 2015; see also K. Schwartz, “Rocket Attack Kills 20 Iranian Refugees in Iraqi Camp,” Voice of America, Oct. 30, 2015. H. Smith and P. Kingsley, “Far-Right Group Attacks Refugee Camp on Greek Island of Chios,” Guardian, Nov. 18, 2016. “Xenophobia and racism in Russia are increasing rapidly. In many cases, the police are more sympathetic to extremist youth groups (skinheads) which commit crimes against Chechens or Africans than to the victims. Often, the authorities do not want to prosecute these cases at all. If a case does go to court, the authorities do their best to get reduced sentences and decrease the time of imprisonment or the level of punishment”: ACCORD/ UNHCR, “Eighth European Country of Origin Information Seminar, Vienna, 28–29 June 2002 – Final Report: Russian Federation” (2002), at 216. Nor have such attacks abated in recent years; instead, those who report their attackers to police often face arrest themselves for lacking proper documentation or are otherwise met with indifference: A. Simmons, “African Migrants in Russia Describe ‘Hell on Earth,’” Los Angeles Times, Nov. 2, 2014.

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generalized violence against refugees who are members of sexual minorities in Mexico, with some hiding themselves to avoid detection by the Central American gangs from which they fled.1391 Moroccan police have beaten subSaharan refugees and other non-citizens and set their tents on fire during raids on informal communities.1392 Following a bus bombing later attributed to AlShabaab, Kenyan authorities commenced a campaign of rape against Somali refugees residing in Nairobi.1393 Disregarding (and sometimes destroying) official UNHCR refugee status documentation, the police then held refugee women and men until they paid bribes to secure their release.1394 Even when authorities are not directly responsible for the violence faced by refugees, they frequently create the conditions which make refugees vulnerable to attack. For example, to avoid detection by Chinese authorities intent on removing them without consideration of their protection needs, North Korean refugees are often forced to secure private protection by becoming slave laborers or prostitutes.1395 Similarly, Australian authorities cut off food and electricity to force refugees on Manus Island’s prison center to move to alternative facilities at Lorengau, even though it was well known that anti-foreigner sentiment in the area was high and that refugees had been attacked there before.1396 Because of France’s demolition of the camps at Calais and the confiscation of tents and sleeping bags, those who remain are left with few options but to sleep in the woods or in unsafe shelters where they are vulnerable to the cold and to violence.1397 In March 2015, South African Zulu King Goodwill Zwelithini made a speech likening foreign nationals to “head lice” and “ticks,”1398 leading 1391

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Amnesty International, “No Safe Place: Salvadorans, Guatemalans, and Hondurans Seeking Asylum in Mexico based on their Sexual Orientation and/or Gender Identity,” Nov. 2017, at 20–21. O. Anyadike, “Morocco: The Forgotten Frontline of the Migrant Crisis,” IRIN News, July 29, 2015. Human Rights Watch, “‘You are All Terrorists’: Kenyan Police Abuse of Refugees in Nairobi,” May 2013, at 18–23. Ibid. at 28–32. “There are between 10,000 and 300,000 refugees hiding in China, and monitors for Human Rights Watch found those they spoke to were resigned to a sub-human existence in China. Many fear they will be captured and sent home to serve a life sentence in one of North Korea’s notorious prison camps, where inmates are reportedly experimented on with chemicals, starved or shot”: J. Palmer, “Starving Refugees Sold as Sex Slaves to Chinese Men,” Independent, Nov. 19, 2002, at 13. B. Doherty, “Manus Detention Centre Cleared of all Refugees and Asylum Seekers,” Guardian, Nov. 24, 2017. M. Bulman, “Police Brutality and Rape: The Terrifying Plight of Women and Girls in Calais,” Nov. 12, 2017; see also “Calais: Hundreds of Migrants Remain a Year after Razing of Camp,” Guardian, Oct. 22, 2017. E. Gatten, “South Africa Violence: Zulu King Denies Inciting Racist Attacks and Appeals for Calm,” Independent, Apr. 20, 2015; see also O. Quist-Arcton, “South Africa’s Xenophobic Attacks ‘Vile,’ says Zulu King Accused of Inciting them,” National Public Radio, Apr. 26, 2015.

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to a wave of attacks against refugees living in Durban.1399 Statements by Israeli Prime Minister Benjamin Netanyahu and other officials – that “illegal infiltrators [are] flooding the country” and that “the Sudanese are a cancer in our body” – sparked similar attacks in 2012.1400 Increasingly, anti-refugee vigilantes in asylum countries have engaged in attacks on refugees. Syrian refugees have been the objects of “migrant hunting” in Bulgaria, with self-described “patriots” assaulting them with machetes and guns.1401 Greek “citizens’ groups” have perpetrated assaults against foreigners that include beatings with clubs or glass bottles, stabbings, and general campaigns of intimidation.1402 Those who complained to the police were asked for their immigration paperwork and sometimes jailed; in other instances, victims could not file a complaint without first paying a €100 fee.1403 Finally, physical abuse is at times employed as part of a strategy to encourage refugees “voluntarily” to repatriate. Rohingya refugees were coerced to return to Burma by physical and sexual abuse at the hands of the Bangladeshi military and paramilitary forces in charge of reception camps.1404 Kenya forcibly recruited hundreds of Somali refugees, including children, to fight Al-Shabaab in their country of origin;1405 as part of a campaign to close the camps, Kenya later ordered the Red Cross to suspend its services.1406 Though 1399

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D. Mavhinga, “Dispatches: Xenophobic Violence Rages in Durban, South Africa,” Apr. 14, 2015. H. Sherwood, “Israelis Attack African Migrants during Protest against Refugees,” Guardian, May 24, 2012. I. Mihailova, “Bulgaria: With Quads and Machetes Hunting for Migrants, Irregular Militia Patrol the Borders,” Servizio Informazione Religiosa, Apr. 22, 2016; M. Bishop, “Bulgarian Vigilantes Patrol Turkey Border to Keep Migrants Out,” NBC News, Mar. 10, 2017. Human Rights Watch, “Hate on the Streets: Xenophobic Violence in Greece,” July 2012, at 4, 6–7, 10. Ibid. at 78–87. Human Rights Watch, Human Rights Watch Global Report on Women’s Human Rights (1995), at 115–118. “[O]n July 20 [1997], the Bangladeshi security forces forcibly returned 187 refugees from Nayapara camp across the Naaf River to Burma. Apparently no one volunteered for repatriation, so the authorities picked mostly women and children to be sent back”: Amnesty International, “Rohingyas: The Search for Safety,” Doc. ASA/13/07/97 (Sept. 1, 1997). “Somali Refugees Recruited to Fight Islamists,” Washington Post, Apr. 6, 2010. According to a Human Rights Watch report, “hundreds of young men and boys from the Dadaab refugee camps have been secretly recruited for the force, lured with false promises of lavish pay and claims of backing from the United Nations and the United States. By the time the refugees learn their pay will be a fraction of what they were promised, and that they will be hastily trained for frontline combat, their cell phones and identity papers have been confiscated”: C. Albin-Lackey, “Kenya Recruits Somali Refugees to Fight Islamists Back Home in Somalia,” Nov. 10, 2009. “On March 17, 2011, Kenyan authorities forced the Kenya Red Cross to stop providing services at a temporary refugee camp in Mandera, in northeast Kenya, which was housing 13,000 people, many of them Somalis who had recently fled fighting across the border in

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not returning refugees directly to their country of origin, Iran’s promises of citizenship and financial incentives to those Afghans who would agree to fight in Syria (and threats of deportation to those who would refuse) confirm a “creative” approach to securing the departure of unwelcome refugees.1407 Civil and Political Covenant, Art. 6(1) Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life. Civil and Political Covenant, Art. 7 No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment . . . Civil and Political Covenant, Art. 9(1) Everyone has the right to liberty and security of person . . . Even though physical security is clearly fundamental to any notion of refugee protection, the Refugee Convention is silent on this issue. At one point, Belgium and the United States tabled a proposal that would have required states to grant refugees arriving without pre-authorization “treatment compatible, from both the moral and material view, with human dignity.”1408 The Belgian co-sponsor explained that this clause would “grant the refugee the means of livelihood and . . . prevent his ill-treatment.”1409 This language was not approved on the grounds that it was “too ambitious,”1410 the drafters opting instead to define with greater precision precisely which rights refugees would receive. No right to physical security was proposed or adopted. Mtango suggests that this omission may follow from the primary concern of the drafters to ensure the economic and social well-being of refugees, the assumption being that physical safety would follow from the enforcement of norms derived from the international law of armed conflict and national asylum laws.1411 An alternative explanation is that refugee law, like the

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Bula Hawo. District authorities, who had given the Red Cross permission to establish the camp, abruptly changed course, ordering the Red Cross to stop providing services and close the camp. That evening, according to several organizations working in Mandera, government officials accompanied by armed Kenyan security forces intimidated camp residents, telling them to leave the camp and return to Somalia by noon the next day:” Human Rights Watch, “Kenya: Stop Deporting Somalis Fleeing Conflict,” March 31, 2011. A. Latifi, “How Iran Recruited Afghan Refugees to Fight Assad’s War,” New York Times, June 30, 2017. Other sources report that such incentives as “promises of Iranian citizenship and improved living standards for their families” are often offered in exchange for military service: “Iran Deported Nearly 130,000 Afghan Refugees in 2017,” MSNBC International, May 22, 2017. UN Doc. E/AC.32/L.25, Feb. 2, 1950, at Art. 3(1). Statement of Mr. Cuvelier of Belgium, UN Doc. E/AC.32/SR.22, Feb. 2, 1950, at 24. Statement of the Chairman, Mr. Chance of Canada, ibid. at 25. Mtango, “Armed Attacks”, at 97.

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international human rights standards being contemporaneously developed, reflects a masculinist assumption that protection from physical attack need not be codified as a human right. Because the standards of both refugee law and international human rights law were nearly exclusively drafted by men, and because men presumed themselves to be independently able to ensure their own physical security (except, for example, during a war or while incarcerated), there was no need to draft a general right to physical security.1412 Whatever the historical reason, we are today required to ground a right to physical security for refugees not in the Refugee Convention itself, but instead in what has been described as “a criss-cross of rules which have some bearing on the subject.”1413 For example, child refugees may rely on Arts. 19, 20, 22, 34, 35, 36, and 37 of the Convention on the Rights of the Child.1414 Refugees who are threatened by armed conflict may invoke the protections of the Geneva Conventions on the Law of Armed Conflict and their Protocols, in particular Common Article 3, which prohibits acts of violence directed against persons not taking active part in hostilities.1415 Those for whom the risk to physical security rises to the level of torture or cruel, inhuman or degrading treatment may invoke the duties under Arts. 2 and 16 of the Torture Convention.1416 1412

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See generally H. Charlesworth and C. Chinkin, Boundaries of International Law: A Feminist Analysis (2000), at 280–287; V. Peterson, “Security and Sovereign States: What is at Stake in Taking Feminism Seriously?,” in V. Peterson ed., Gendered States: Feminist (Re)visions of International Relations Theory (1992), at 31. Belated recognition of the importance of the right to physical security, including in a gender-specific context, has been forthcoming: see e.g. UN Human Rights Council, Res. 7/24, “Elimination of violence against women,” Mar. 28, 2008; and UN Human Rights Council, Res. 32/2, “Protection against violence and discrimination based on sexual orientation and gender identity,” July 15, 2016. M. Othman-Chande, “International Law and Armed Attacks in Refugee Camps,” [1990] Nordic Journal of International Law 153, at 153. These provisions address protection from physical or mental violence (Art. 19); special protection for children deprived of their family (Art. 20); special protection for children seeking refugee status (Art. 22); protection from sexual exploitation (Art. 34); protection from abduction or trafficking (Art. 35); protection against any form of exploitation (Art. 36); and protection against cruel, inhuman, or degrading treatment (Art. 37): Rights of the Child Convention. “In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, at a minimum, the following provisions: (1) Persons taking no active part in the hostilities . . . shall in all circumstances be treated humanely, without any adverse distinction, founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria”: Geneva Convention relative to the Protection of Civilian Persons in Time of War, 75 UNTS 287 (UNTS 973), done Aug. 12, 1949, entered into force Oct. 21, 1950, at Art. 3. See Mtango, “Armed Attacks,” at 103–106. “Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction”: Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1465 UNTS

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But unless a refugee is able to invoke a specialized obligation of this kind, he or she must rely on the guarantee set by Art. 7(1) of the Refugee Convention, which confirms that refugees are to enjoy at least the same treatment as is afforded aliens in general – most importantly, the guarantees of physical security set by the Human Rights Covenants.1417 The Human Rights Committee has made clear that the benefit of Arts. 6, 7, and 9 of the Civil and Political Covenant may be directly invoked by non-citizens under the effective jurisdiction of a state party.1418

4.3.1 Right to Life The right to life is defined by Art. 6 of the Civil and Political Covenant to be an “inherent right,” meaning that “one’s right to life cannot be taken away by the state or waived, surrendered or renounced by [the individual concerned], since

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85 (UNTS 24841), adopted Dec. 10, 1984, entered into force June 26, 1987 (Torture Convention), at Art. 2. The duty under Art. 16 extends also to the prevention of “acts of cruel, inhuman, or degrading treatment or punishment which do not amount to torture,” though only if such acts “are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity”: ibid. at Art. 16(1). The Committee Against Torture has specifically concluded that “asylum seekers [and] refugees” are entitled to claim protection under the treaty: Committee Against Torture, “General Comment No. 2: Implementation of Article 2 by States Parties,” UN Doc. CAT/C/GC/2, Jan. 24, 2008, at [21]. “In general, the rights set forth in the Covenant apply to everyone, irrespective of reciprocity, and irrespective of his or her nationality or statelessness. Thus, the general rule is that each one of the rights of the Covenant must be guaranteed without discrimination between citizens and aliens”: UN Human Rights Committee, “General Comment No. 15: The Position of Aliens under the Covenant” (1986), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [1]–[2]. More specifically, state parties are required to ensure that the protection of the Covenant is “available to all individuals, regardless of nationality or statelessness, such as asylum-seekers [and] refugees”: UN Human Rights Committee, “General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant” (2004), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [10]. Art. 9’s guarantee of security of person has been expressly acknowledged to apply to “aliens, refugees and asylum seekers”: UN Human Rights Committee, “General Comment No. 35: Article 9 (Liberty and Security of Person),” UN Doc. CCPR/C/GC/ 35, Dec. 16, 2014, at [3]. See generally Chapter 1.5.4. “Aliens thus have an inherent right to life, protected by law, and may not be arbitrarily deprived of life. They must not be subjected to torture or to cruel, inhuman or degrading treatment or punishment . . . Aliens have the full right to liberty and security of the person”: UN Human Rights Committee, “General Comment No. 15: The Position of Aliens under the Covenant” (1986), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [7]. State parties are moreover “obliged not to hinder access to the [UN Human Rights] Committee and to prevent any retaliatory measures against any person who has addressed a communication to the Committee”: UN Human Rights Committee, “General Comment No. 33: The Obligations of States Parties under the Optional Protocol to the International Covenant on Civil and Political Rights,” UN Doc. CCPR/ C/GC/33, Nov. 5, 2008, at [4].

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a human being cannot be divested, nor can he divest himself, of his humanity.”1419 The right to life has been said by the International Court of Justice to be part of “the irreducible core of human rights,”1420 and by the Human Rights Committee to be “the supreme right . . . [and] the prerequisite for the enjoyment of all other human rights.”1421 The fundamental nature of this right is echoed at the regional level, with the African Commission identifying the right to life as the “fulcrum of all other rights,”1422 and the Inter-American Court referring to it as “the essential presumption for the exercise of . . . other rights.”1423 At its core, the right to life stipulates that “[n]o one shall be arbitrarily deprived of his life.”1424 This duty prohibits acts of intentional killing by state authorities under other than the strictest controls, and in carefully limited circumstances required by law. As the Human Rights Committee has affirmed, States parties are expected to take all necessary measures intended to prevent arbitrary deprivations of life by their law enforcement officials, including soldiers charged with law enforcement missions. These measures include appropriate legislation controlling the use of lethal force by law enforcement officials [and] procedures designed to ensure that law enforcement actions are adequately planned in a manner consistent with the need to minimize the risk they pose to human life.1425

The gunning down of Somali refugees off the coast of Yemen,1426 the killing of Syrian refugees seeking to enter Turkey by that country’s border guards,1427 the firing of rockets at a refugee camp in Iraq by an Iranianbacked militia,1428 and the Sudanese bombing of refugees in the Yida camp in 1419

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N. Jayawickrama, The Judicial Application of Human Rights Law (2017) (Jayawickrama, Judicial Application), at 226. Legality of the Threat or Use of Nuclear Weapons, [1996] ICJ Rep 226, at 506, per Judge Weeramantry. UN Human Rights Committee, “General Comment No. 36 (2018) on Article 6 of the International Covenant on Civil and Political Rights, on the Right to Life,” UN Doc. CCPR/C/GC/36, adopted Oct. 30, 2018, at [2]. African Commission on Human and Peoples’ Rights, “General Comment No. 3 on the African Charter on Human and Peoples’ Rights: The Right to Life (Article 4),” adopted during the 57th Ordinary Session, Nov. 2015, at [1]. Santo Domingo Massacre v. Colombia, Ser. C No. 259 (IACtHR, Nov. 30, 2012), at [190]. Civil and Political Covenant, at Art. 6(1). While “[t]here is, to date, no standardized interpretation of the meaning of ‘arbitrary,’” core components can be identified: “Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions on a Gender-Sensitive Approach to Arbitrary Killings,” UN Doc. A/HRC/35/23, June 6, 2017, at [27]. UN Human Rights Committee, “General Comment No. 36 (2018) on Article 6 of the International Covenant on Civil and Political Rights, on the Right to Life,” UN Doc. CCPR/C/GC/36, adopted Oct. 30, 2018, at [13]. See text at note 1333. 1427 See text at note 1348. 1428 See text at note 1388.

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South Sudan1429 were all clearly violations of this most fundamental of all human rights.1430 Liability also inheres where a government puts agents in a position of control over refugees, and then turns a blind eye to murders committed by those to whom it has entrusted authority. Because a government may not do indirectly what Art. 6 prohibits it from doing directly, the failure to take action in the face of the killing of Iranian refugees by security forces in Iraq’s Camp Ashraf1431 and the repeated shootings with apparent impunity by DRC soldiers of Rwandan and Burundian refugees engaged in protests1432 amounted to unlawful deprivations of life. There is, however, no need for evidence of “deliberate intent” to kill on the part of the state or its agents.1433 Rather, the clear disregard for the life of refugees evident in the way in which Lebanese security forces conducted antiterrorist security sweeps,1434 the Iranian combination of bribes and threats to induce Afghan refugees to risk their lives fighting in Syria,1435 or the failure by the United States firmly to end various enforcement tactics against refugees and others, including sabotaging humanitarian supplies and allowing border agents to engage in violent chases likely to inflict injury or death1436 all showed sufficient disregard for the lives of refugees to infringe Art. 6. Nor does liability follow only when state agents are involved. By entrusting the operation of some of its camps for Cambodian refugees to the notorious Khmer Rouge, Thailand bears responsibility for the killings of refugees inflicted there by the Khmer Rouge.1437 Much the same disregard for the lives of refugees was apparent in the decision by Kenya to allow recruiters into Dadaab refugee camp for the purpose of luring inadequately trained young men back into frontline combat against Al-Shabaab.1438 Indeed, the Thai and Kenyan examples are especially grave breaches of Art. 6 given that there is a “heightened duty” of care where a 1429 1430

1431 1433

1434 1437

See text at note 1376. “The Human Rights Committee has required states to take specific and effective measures to prevent the disappearance of individuals. After a person is reported to have disappeared, the state continues to have an obligation under ICCPR 2(3) to conduct diligent and serious enquiries to determine what has happened to that person, what his present status is as a human being and whether he is dead or alive: Jayawickrama, Judicial Application, at 257. See text at note 1351. 1432 See text at note 1354. “Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions on a Gender-Sensitive Approach to Arbitrary Killings,” UN Doc. A/HRC/35/23, June 6, 2017, at [34]. Indeed, “[l]oss of life occurring in custody, in unnatural circumstances, creates a presumption of arbitrary deprivation of life by State authorities, which can only be rebutted on the basis of a proper investigation which establishes the State’s compliance with its obligations under article 6”: UN Human Rights Committee, “General Comment No. 36 (2018) on Article 6 of the International Covenant on Civil and Political Rights, on the Right to Life,” UN Doc. CCPR/C/GC/36, adopted Oct. 30, 2018, at [29]. See text at note 1355. 1435 See text at note 1407. 1436 See text at notes 1345–1346. See text at note 1352. 1438 See text at note 1405.

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government deprives individuals of their liberty, including, for example, where they are assigned to “refugee camps.”1439 More generally, the right to life imposes an obligation on states to take measures to prevent and punish arbitrary deprivation of life.1440 In the words of the Inter-American Court: The State has a legal duty to take reasonable steps to prevent human rights violations and to use measures at its disposal to carry out a serious investigation of violations committed within its jurisdiction, to identify those responsible, to impose the appropriate punishment and to ensure the victim adequate compensation.1441

As such, even where killings are not the result of direct or indirect official acts, they nonetheless infringe Art. 6 if the state fails to take appropriate steps to protect persons whose lives are known to be at risk from non-state actors.1442 This is because there is “a due diligence obligation to undertake reasonable positive measures, which do not impose on them disproportionate burdens, in response to reasonably foreseeable threats to life originating from private persons and entities, whose conduct is not attributable to the State.”1443 When Uganda left Sudanese refugees exposed to killings by the Lord’s Resistance Army rebels whose objectives were clear,1444 and when no serious 1439

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“A heightened duty to protect the right to life . . . applies to individuals quartered in . . . refugee camps”: UN Human Rights Committee, “General Comment No. 36 (2018) on Article 6 of the International Covenant on Civil and Political Rights, on the Right to Life,” UN Doc. CCPR/C/GC/36, adopted Oct. 30, 2018, at [25]. Indeed, “States parties may be in violation of article 6 even if such threats . . . do not result in loss of life”: ibid. at [7]. Velásquez Rodríguez v. Honduras, Ser. C No. 4 (IACtHR, July 29, 1988), at [174]; affirmed in Santo Domingo Massacre v. Colombia, Ser. C No. 259 (IACtHR, Nov. 30, 2012), at [189] in the context of the right to life. On the duty to investigate, see Office of the United Nations High Commissioner for Human Rights, “Minnesota Protocol on the investigation of potentially unlawful death” (2017), at [15]–[21]. “It is the duty of the state to take appropriate steps to safeguard the lives of those within its jurisdiction. This requires the state to establish a framework of laws containing procedures, penalties and means of enforcement which will, to the extent reasonably practicable, deter the commission of offences against the person and thereby protect life. The duty to protect the right to life also implies, in certain circumstances, a positive obligation to take preventive operational measures to protect an individual or individuals whose life is at risk from the criminal acts of another individual”: Jayawickrama, Judicial Application, at 228–229. UN Human Rights Committee, “General Comment No. 36 (2018) on Article 6 of the International Covenant on Civil and Political Rights, on the Right to Life,” UN Doc. CCPR/C/GC/36, adopted Oct. 30, 2018, at [21]. This duty is violated “whenever States fail to act with due diligence, which requires an assessment of . . . how much the State knew or should have known; . . . the risks or likelihood of harm; and . . . the seriousness of the harm”: “Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions on a Gender-Sensitive Approach to Arbitrary Killings,” UN Doc. A/HRC/ 35/23, June 6, 2017, at [58]. See text at note 1386.

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effort was made by Zaïre (now the Democratic Republic of Congo) to ensure that violent genocidaires and weapons were kept out of the Rwandan refugee camps,1445 the resultant slaughter inside the camps was in breach of the duty to ensure the right to life. In contrast, Art. 6 was not disregarded when Chad proved unable to shelter Nigerian refugees from attacks by Boko Haram despite good faith efforts to relocate the refugees to safe areas away from the border as well as to Cameroon.1446 As the last example suggests, the presence of refugees in areas adjacent to the frontier with their country of origin frequently exposes them to cross-border raids and killings by their enemies.1447 The refusal of Côte d’Ivoire to relocate refugees away from the Liberian border1448 and Guinea’s comparable determination to keep refugees from Sierra Leone near the border with that country1449 – in each case precipitating cross-border armed attacks on refugees – were both contrary to the affirmative duty to protect life from foreseeable threats under Art. 6. UNHCR’s Executive Committee has affirmed the duty of governments to mitigate the possibility of non-combatant refugees becoming the objects of armed attack,1450 as Cameroon attempted in good faith to do despite strong resistance from Nigerian insurgents.1451 Protection of physical security thus normally entails ensuring that refugees not be required to remain in an area which may be affected by the conflict they have fled, or by any other conflict in the country of asylum.1452 The state of refuge is also liable under Art. 6 where it fails to establish a “protective legal framework”1453 or “to investigate and prosecute”1454 either 1445 1447

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1454

See text at note 1363. 1446 See text at notes 1384–1385. The prohibition of arbitrary deprivation of life continues during armed conflict: see e.g. African Commission on Human and Peoples’ Rights, “General Comment No. 3 on the African Charter on Human and Peoples’ Rights: The Right to Life (Article 4),” adopted during the 57th Ordinary Session, Nov. 2015, at [32]. In that context, the meaning of “arbitrariness” should be interpreted to take account of relevant norms of international humanitarian law: V. Todeschini, “The Relationship between International Humanitarian Law and Human Rights Law in the African Commission’s General Comment on the Right to Life,” EJIL: Talk!, June 7, 2016, at 3. See text at note 1379. 1449 See text at notes 1380–1381. UNHCR Executive Committee Conclusion No. 48, “Military or Armed Attacks on Refugee Camps and Settlements” (1987). See also UNHCR Executive Committee Conclusions Nos. 27, “Military Attacks on Refugee Camps and Settlements in Southern Africa and Elsewhere” (1982), 32, “Military Attacks on Refugee Camps and Settlements in Southern Africa and Elsewhere” (1983), and 45, “Military and Armed Attacks on Refugee Camps and Settlements” (1986). See text at note 1446. The duty to assist refugees is not tantamount to a right forcibly to relocate them away from border areas. But see AU Refugee Convention, at Art. II(6), discussed at Chapter 1.5.3 at notes 272–273. UN Human Rights Committee, “General Comment No. 36 (2018) on Article 6 of the International Covenant on Civil and Political Rights, on the Right to Life,” UN Doc. CCPR/C/GC/36, adopted Oct. 30, 2018, at [20]. Ibid. at [27].

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unofficial killings or disappearances in territory under its jurisdiction.1455 Malaysia’s delay in launching a credible investigation after discovering mass graves containing the bodies of refugees and others smuggled into their territory1456 and the failure of Burundi to investigate and prosecute the killing of over 150 Congolese refugees1457 thus violated Art. 6. The right to life is not, however, infringed simply because refugees die. Most Southern African states, for example, allowed refugees from the South African apartheid regime to move away from border areas, and took serious efforts to protect them from killings at the hands of extremely sophisticated covert incursions by the military and other agents of South Africa.1458 Nor is it clear that Syria bears legal responsibility for the death of Iraqi refugees after attacks by Islamic State militants.1459 The relevant inquiry is whether the authorities of the asylum state intend to kill the refugee – either directly, or indirectly, as by starvation, or exposure to illness or violence – or whether they show a lack of determination effectively to respond to known risks to life, or to pursue and prosecute those responsible for risk to, or loss of, life.1460 Because the right to life can be infringed by either act or omission, and because it focuses broadly on whether death results from a situation characterized by “elements of unlawfulness and injustice, as well as those of capriciousness and unreasonableness,”1461 it is an important means of holding governments accountable for intentional or foreseeable threats to the lives of refugees.

4.3.2 Freedom from Torture, Cruel, Inhuman, or Degrading Treatment Many of the risks to the physical security of refugees, of course, fall short of a risk to life. Art. 7 of the Civil and Political Covenant, however, prohibits also actions which amount to torture, or to cruel, inhuman, or degrading 1455

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In the broader context of migrant deaths, a UN special rapporteur opined that “[t]he world-wide failures to investigate these deaths are themselves additional violations of the right to life. This contributes to an international regime of impunity; deepens the invisibility of the violations; hides their victims, and makes for ill-informed policydecisions related to migration which may result in even further deprivations of life”: UN Human Rights Office of the High Commissioner, “UN Special Rapporteur Attacks ‘International Regime of Impunity’ over Migrant Deaths,” Oct. 27, 2017. See text at note 1340. Malaysia’s delay in investigating and prosecuting these deaths contrasts markedly with the Thai response to comparable discoveries: See text at note 1341. See text at note 1383. 1458 See text at note 1378. 1459 See text at note 1375. “What is decisive is whether a violation . . . has occurred with the support or the acquiescence of the government, or whether the State has allowed the act to take place without taking measures to prevent it or to punish those responsible”: Velásquez Rodríguez v. Honduras, Ser. C No. 4 (IACtHR, July 29, 1988), at [173]. Schabas, Nowak’s CCPR Commentary, at 137, citing the Council of Europe’s invocation of the comments of the Chilean representative to the Commission on Human Rights during the drafting of the Civil and Political Covenant.

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treatment.1462 Like the guarantee of the right to life, Art. 7 not only prohibits negative state conduct, but requires governments to take affirmative steps to protect everyone under their authority from relevant risks.1463 Equally important, a state may never justify its failure to protect all persons from torture, or from cruel, inhuman, or degrading treatment, on the grounds of an exceptional or emergency situation: The text of article 7 allows of no limitation . . . [E]ven in situations of public emergency . . . no derogation from the provisions of article 7 is allowed and its provisions must remain in force . . . [N]o justification or extenuating circumstances may be invoked to excuse a violation of article 7 for any reasons, including those based on an order from a superior officer or public authority.1464

The definition of “torture” is relatively demanding. An act may be described as torture only if four criteria are satisfied.1465 First, the act in question must result in severe physical or mental pain or suffering. Second, the act which causes the pain or suffering must be intentional.1466 Third, there must be a 1462

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The applicability of these protections to “asylum-seekers [and] refugees” was affirmed by the Committee Against Torture: UN Committee Against Torture, “General Comment No. 2: Implementation of Article 2 by States Parties,” UN Doc. CAT/C/GC/2, Jan. 24, 2008, at [21]. “It is the duty of the State party to afford everyone protection through legislative and other measures as may be necessary against the acts prohibited by article 7, whether inflicted by people acting in their official capacity, outside their official capacity or in a private capacity”: UN Human Rights Committee, “General Comment No. 20: Prohibition of Torture, or Other Cruel, Inhuman or Degrading Treatment or Punishment” (1992), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [2]. Ibid. at [3]. The UN Human Rights Committee, considering claims of torture under the Civil and Political Covenant, “is guided by the definition of torture found in the Convention against Torture”: Giri v. Nepal, HRC Comm. No. 1761/08, UN Doc. CCPR/C/101/D/ 1761/2008, decided Mar. 24, 2011, at [7.5]. The definition of “torture” in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1465 UNTS 85 (UNTS 24841), adopted Dec. 10, 1984, entered into force June 26, 1987 (Torture Convention), at Art. 1(1) is: “For the purposes of this Convention, the term ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.” “Torture can never be inflicted by negligent or even reckless behaviour”: M. Nowak, “Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment,” in A. Clapham and P. Gaeta eds., The Oxford Handbook of International Law in Armed Conflict 387 (2014) (Nowak, “Torture”), at 394.

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specific motivation for the intentional infliction of harm, such as the extraction of a confession, intimidation, punishment, or discrimination (but not including lawful punishment). Fourth, the act must be committed by or under the authority of a public official. By way of example, all of these criteria were met when Kenyan authorities undertook a campaign of rape and kidnaping for ransom of Somali refugee women living in Nairobi.1467 The suffering of rape was severe, the rapes (and kidnapings) were intentionally inflicted by public officials, and the goal was to punish and intimidate refugees falsely stigmatized as Al-Shabaab terrorists. There was also torture when Egyptian and Sudanese officials colluded with traffickers engaged in the brutalizing and killing of their victims:1468 what might otherwise have been a purely private criminal act became torture once “committed under the authority” of the police.1469 While refugees are sometimes the victims of torture, they more commonly face the risk of treatment that is inhuman or cruel.1470 The prohibition of “inhuman or cruel treatment or punishment” is treated as a unified concept.1471 That is, a clear distinction is not generally drawn between actions which are cruel, and those which are inhuman. In general, actions are “inhuman or cruel” if they meet most, but not all, of the criteria for torture.1472 1467 1469

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See text at note 1393. 1468 See text at notes 1337–1339. “Since the failure of the State to exercise due diligence to intervene to stop, sanction and provide remedies to victims of torture facilitates and enables non-State actors to commit acts impermissible . . . with impunity, the State’s indifference or inaction provides a form of encouragement and/or de facto permission”: UN Committee Against Torture, “General Comment No. 2: Implementation of Article 2 by States Parties” (2008), UN Doc. CAT/C/GC/2, Jan. 24, 2008, at [18]. Importantly, “[s]ince all three types of ill treatment are absolutely prohibited, even in times of war and emergency, there is no need to consider legal distinctions between them”: Nowak, “Torture,” at 390. The only salient difference is that some specific duties under the Torture Convention – including the duty of non-refoulement established by its Art. 3 (see Chapter 4.1.6) – apply only where the risk is properly defined as amounting to “torture”: ibid. at 391. The European Court of Human Rights seems, however, to see “inhuman” conduct as largely premeditated and lengthy infliction of intense suffering. It has distinguished “inhuman” conduct from “degrading” conduct on the basis that the latter is characterized by its acute effect on human dignity, “arous[ing] feelings of fear, anguish, or inferiority capable of breaking an individual’s moral and physical resistance”: MSS v. Belgium and Greece, (2011) 53 EHRR 28 (ECtHR, Jan. 21, 2011), at [220]. See also Bouyid v. Belgium, [2015] ECHR 819 (ECtHR [GC], Sept. 28, 2015), at [87]. There is debate about whether the distinguishing feature of “torture” is the severity of the pain inflicted or whether severe pain and suffering is required for both “torture” and “cruel and inhuman” treatment, with the distinction focusing instead on for example intentionality: Nowak, “Torture,” at 391. The UN Human Rights Committee has adopted the latter view, finding that “the critical distinction between torture on the one hand, and other cruel, inhuman or degrading treatment or punishment, on the other, will be the presence or otherwise of a relevant purposive element”: Giri v. Nepal, HRC Comm. No. 1761/08, UN Doc. CCPR/C/101/D/1761/2008, decided Mar. 24, 2011, at [7.5].

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Thus, violent abuses committed by state officials even if not accompanied by the specific intent required to establish torture – for example, the all-toofrequent rapes by police or camp officials of refugee women – are appropriately deemed to be forms of cruel and inhuman treatment. Similarly, the intentional act of a public official intended to punish a refugee may not be “torture” if the consequent harm does not rise to the level of “severe” pain or suffering. Lesser pain or suffering, in the context of such an intentional, official, and punitive action would, however, still amount to inhuman or cruel punishment.1473 Thus, for example, the prohibition of cruel and inhuman treatment was breached when Moroccan police beat sub-Saharan refugees and set their tents on fire during raids on informal communities1474 and when Malaysian officials caned refugees for having arrived to seek protection.1475 And because an action is no less official when implemented by private parties encouraged by the state,1476 the unleashing of violent attacks when the South African Zulu King likened foreign nationals to “head lice” and “ticks”1477 and after Israeli Prime Minister Benjamin Netanyahu referred to Sudanese refugees as “illegal infiltrators flooding this country”1478 also gave rise to a breach of the duty to refrain from cruel and inhuman treatment or punishment. A state may moreover be found to have engaged in cruel or inhuman treatment where its officials fail to respond appropriately to known grave risks.1479 For example, the Human Rights Committee found a breach of Art. 7 of the Covenant where Australia continued to detain an Iranian refugee claimant even after it was clear that the prolonged detention would result in irreversible psychiatric illness: As to the author’s allegations that his first period of detention amounted to a breach of article 7, the Committee notes that the psychiatric evidence 1473

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1478 1479

“The distinction between torture and inhuman treatment is derived principally from a difference in the intensity of the suffering inflicted”: Jayawickrama, Judicial Application, at 296. See text at note 1392. 1475 See text at note 1350. “States bear international responsibility for the acts and omissions of their officials and others, including . . . where the failure of the State to intervene encourages and enhances the danger of privately inflicted harm”: UN Committee Against Torture, “General Comment No. 2: Implementation of Article 2 by States Parties”(2008), UN Doc. CAT/ C/GC/2, Jan. 24, 2008, at [15]. See text at note 1398. The king serves as constitutional monarch under the Traditional Leadership Clause of the Constitution of South Africa; while required to act on the advice of the provincial premier, there is no indication that the government reprimanded or otherwise distanced itself from his remarks. See text at note 1400. “The obligation to prevent ill-treatment in practice overlaps with and is largely congruent with the obligation to prevent torture”: UN Committee Against Torture, “General Comment No. 2: Implementation of Article 2 by States Parties”(2008), UN Doc. CAT/ C/GC/2, Jan. 24, 2008, at [3].

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emerging from examinations of the author over an extended period, which was accepted by the State party’s courts and tribunals, was essentially unanimous that the author’s psychiatric illness developed as a result of the protracted period of immigration detention. The Committee notes that the State party was aware, at least from August 1992 when he was prescribed tranquillizers, of psychiatric difficulties the author faced. Indeed, by August 1993, it was evident that there was a conflict between the author’s continued detention and his sanity. Despite increasingly serious assessments of the author’s conditions in February and June 1994 (and a suicide attempt), it was only in August 1994 that the Minister exercised his exceptional power to release him from immigration detention on medical grounds (while legally he remained in detention). As subsequent events showed, by that point the author’s illness had reached such a level of severity that irreversible consequences were to follow. In the Committee’s view, the continued detention of the author when the State party was aware of the author’s mental condition and failed to take the steps necessary to ameliorate the author’s mental deterioration constituted a violation of his rights under article 7 of the Covenant.1480

The known risk of serious harm at the heart of the notion of cruel and inhuman treatment need not emanate from state officials themselves, so long as the official actions contribute in a material way to the exposure to harm. Thus, Nepal’s refusal to take measures to protect sexual minority refugees against the known risk of violence at the hands of other refugees,1481 Russia’s refusal to prosecute or punish those attacking non-Slavic refugees,1482 as well as Tanzania’s decision to require refugees to live in the remote Mtabila camp where they could not be meaningfully protected against banditry and other attacks1483 are all examples of cruel and inhuman treatment. Similarly, China may be held liable for cruel and inhuman treatment in view of its awareness that refusal to protect North Korean refugees left them no option but to seek informal “protection” purchased by submission to sexual or other exploitation.1484 It follows also that Chad1485 and Tanzania1486 1480

1481 1484

C v. Australia, HRC Comm. No. 900/1999, UN Doc. CCPR/C/76/D/900/1999, decided Oct. 28, 2002, at [8.4]. Australia’s indefinite detention of refugees has been found to breach Art. 7 of the Covenant on multiple occasions, the Human Rights Committee taking the view that the existence of “health care and mental support services” cannot take away from the “combination of the arbitrary character of the . . . detention, its protracted and/or indefinite duration, the refusal to provide information and procedural rights to the [refugees] and the difficult conditions of detention [which] are cumulatively inflicting serious psychological harm upon them, and constitute treatment contrary to article 7 of the Covenant”: FKAG et al. v. Australia, HRC Comm. No. 2094/2011, UN Doc. CCPR/C/ 108/D/2094/2011, decided July 26, 2013, at [9.8]; see also MMM et al. v. Australia, HRC Comm. No. 2136/2012, UN Doc. CCPR/C/108/D/2136/2012, decided July 25, 2013; and FJ et al. v. Australia, HRC Comm. No. 2233/2013, UN Doc. CCPR/C/116/D/2233/2013, decided Mar. 22, 2016. See text at note 1365. 1482 See text at note 1390. 1483 See text at note 1387. See text at note 1395. 1485 See text at note 1370. 1486 See text at note 1371.

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were responsible for the cruel and inhuman treatment of refugee women when their camp officials refused to provide materials for cooking fires even after learning of the rapes of women in the adjacent forests where they were compelled to forage for wood. While there may have been no specific, invidious motivation behind these governments’ actions, the failure to make alternative arrangements for the provision of fuel exhibited a willful disregard for what authorities knew was the exposure of refugee women to the severe pain and suffering of rape. Importantly, the notion of inhuman conduct must take account of context. In considering the refusal of UK authorities to provide income support to refugee claimants who delayed in making their claims even as it refused them the right to work, the House of Lords insisted that this is not a country in which it is generally possible to live off the land, in an indefinite state of rooflessness and cashlessness . . . It might be possible to endure cashlessness for some time if one had a roof and basic meals and hygiene facilities provided. But to have to endure the indefinite prospect of both, unless one is in a place where it is both possible and legal to live off the land, is in today’s society both inhuman and degrading.1487

On the facts of the case, and noting the explicitly punitive nature of the government’s policy, the House of Lords determined that the case for inhuman treatment had been made out: It seems one thing to say . . . that within the Contracting States there are unfortunately many homeless people and whether to provide funds for them is a political, not judicial, issue; quite another for a comparatively rich (not to say northerly) country like the UK to single out a particular group to be left utterly destitute on the streets as a matter of policy . . . [A]sylum seekers, it should be remembered, are exercising their vital rights to claim refugee status and meantime are entitled to be here.1488

Beyond acts which are torture or cruel and inhuman, Art. 7 also prohibits treatment or punishment which is “degrading.” As the European Court of Human Rights opined, “degrading” treatment humiliates or debases an individual showing a lack of respect for, or diminishing, his or her human dignity or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance.1489

In line with this understanding, the first type of act considered degrading is conduct intended to humiliate the victim. Tactics such as insistence on forced 1487

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R (Limbuela) v. Secretary of State for the Home Department, [2005] UKHL 66 (UK HL, Nov. 3, 2005), at [78]. Ibid. at [99]–[100]. Pretty v. United Kingdom, (2002) 35 EHRR 1 (ECtHR, Apr. 29, 2002), at [52].

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nudity or insulting the religion of a detainee are generally understood to fall within this category.1490 When Hungarian border guards stripped arriving refugees of their clothes and used dogs to chase them back across the border1491 and when Angolan security forces not only raped refugee women (cruel and inhuman treatment), but did so in full view of their children and others,1492 the clear intention to humiliate their victims required for degrading treatment was thus established.1493 Indeed, the High Court of Ireland acknowledged that in principle the exclusion of refugee claimants from the usual welfare system under a refugee-specific “direct provision” system could amount to degrading treatment if it were shown that such differentiation “either humiliates or debases [refugees] in a manner which shows a lack of respect for human dignity, or that direct provision arouses feelings of anguish or inferiority capable of breaking their moral and physical resistance.”1494 Alternatively, treatment may be degrading because it shows an egregious disregard for an individual’s humanity – for example, sexual harassment, subjection to bad hygienic conditions, slapping, or hair pulling.1495 Thus, the European Court of Human Rights has determined that “where overcrowding reaches a certain level, the lack of space in an institution may constitute the key factor to be taken into account . . . Extreme lack of space in prison cells weighs heavily as an aspect to be taken into account for the purpose of establishing whether the impugned detention conditions were ‘degrading.’”1496 Importantly, account must be taken of the potential for detention to exacerbate pre-existing psychological or other vulnerabilities.1497 More generally, “any recourse to physical force which has not been made strictly necessary by [the individual’s] own conduct diminishes human dignity” and therefore is degrading treatment1498 – thus including, for example, the robbing and beating of desperate refugees by Bulgarian border guards 1490 1493

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Nowak, “Torture,” at 392. 1491 See text at note 1349. 1492 See text at note 1358. Indeed, “[i]t may well suffice for the victim to be humiliated in his own eyes, even if not in the eyes of others”: Khlaifia and Others v. Italy, Case No. 16483/12 (ECtHR [GC], Dec. 15, 2016), at [169]. CA v. Minister for Justice and Equality, [2014] IEHC 532 (Ir. HC, Nov. 14, 2014), at [7.25]. There was determined, however, to be a “want of evidence” that this standard was met: ibid. at [7.26]. Nowak, “Torture,” at 392. Khlaifia and Others v. Italy, Case No. 16483/12 (ECtHR [GC], Dec. 15, 2016), at [164]. The Court noted as well “that other aspects of detention conditions had to be taken into account in examining compliance . . . Those aspects include the possibility of using toilets with respect for privacy, ventilation, access to natural air and light, quality of heating and compliance with basic hygiene requirements”: ibid. at [167]. R (S) v. Secretary of State for the Home Department, [2014] EWHC 50 (Eng. QBD, Admin. Ct., Jan. 28, 2014), at [192]. See also R (Limbuela) v. Secretary of State for the Home Department, [2005] UKHL 66 (UK HL, Nov. 3, 2005), at [8]. Bouyid v. Belgium, [2015] ECHR 819 (ECtHR [GC], Sept. 28, 2015), at [88].

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before summarily ejecting them.1499 An act is also to be considered degrading where it “drives [an individual] to act against his will or conscience.”1500 As such, the demanding of sexual favors from refugees housed by Australia on Nauru1501 and similar abuses by refugee relief workers in much of Western Africa,1502 effectively forcing individuals to submit to sex as a condition of access to basic necessities or other rights, are appropriately understood to be forms of degrading treatment. When there is evidence of such conduct, states have a duty to take decisive action as the European Union did when it suspended funding to an aid agency pending an investigation of two employees accused of sexual exploitation in Greek camps.1503 In contrast, the fact that the sexual abuse of refugees by aid workers at Calais took place in an effective “legal black hole”1504 bespeaks an unlawful failure by France to take action commensurate with a known risk of clearly degrading treatment.

4.3.3 Security of Person The third article of the Civil and Political Covenant with a bearing on the physical security of refugees is Art. 9(1). It provides that “[e]veryone has the right to liberty and security of person.” While subsequent paragraphs of Art. 9 define the ways in which the right to “liberty” informs the treatment of detained persons, Sieghart sensibly argued that independent meaning should be given to the guarantee of “security of person,”1505 even though its content is not textually elaborated. This approach conforms to the principle of treaty interpretation requiring a good faith effort to give meaning to all parts of a treaty as codified.1506 The drafting history confirms that these words are not mere surplusage. Reference to “security of person” was added to the text of Art. 9(1) on the basis of a British proposal to the eighth session of the Commission on Human Rights,1507 apparently motivated by a desire to conform to the formulation of the predecessor Art. 3 of the Universal Declaration of Human Rights.1508 During the drafting of Art. 3 of the Universal Declaration, a Cuban proposal 1499 1500

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See text at note 1344. Greek Case, [1969] Yearbook of the European Convention on Human Rights (EComHR) 186. See text at notes 1356–1357. 1502 See text at note 1359. See text at notes 1360–1361. 1504 See text at note 1362. P. Sieghart, The International Law of Human Rights (1983), at 139. Vienna Convention, at Art. 31(1). See Chapter 2.1 at note 32. UN Doc. E/CN.4/L.137 (1952). A Polish proposal to reframe this guarantee (UN Doc. E/ CN.4/L.183) was adopted by a vote of 7–5 (5 abstentions): UN Doc. E/CN.4/SR.314, at 10. See M. Bossuyt, Guide to the “Travaux Préparatoires” of the International Covenant on Civil and Political Rights (1987), at 196–197. Schabas, Nowak’s CCPR Commentary, at 241. Art. 3 of the Universal Declaration of Human Rights provides that: “[e]veryone has the right to life, liberty and security of

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expressly to add a guarantee of physical integrity was turned down after discussion suggesting that the right to “security of person” already encompassed this concern.1509 Specifically, Chairperson Eleanor Roosevelt concluded that “the words ‘security of person’ had been chosen after lengthy discussion because they were more comprehensive than any other expression. The French representative had especially noted that they included the idea of physical integrity.”1510 There is therefore a textual and historical basis to argue that state parties have an independent duty under Art. 9(1) of the Civil and Political Covenant to take affirmative measures to protect all persons under their authority1511 from attacks that might lead to injury: The right to security of persons protects individuals against intentional infliction of bodily or mental injury, regardless of whether the victim is detained or non-detained . . . [It] also obliges States parties to take appropriate measures in response to death threats against persons in the public sphere, and more generally to protect individuals from foreseeable threats to life or bodily integrity proceeding from any governmental or private actors.1512

Thus, for example, the Human Rights Committee determined that Art. 9(1) was infringed when the Colombian government failed to respond in a meaningful way to death threats made against a teacher who was ultimately forced to flee the country: Although in the Covenant the only reference to the right to security of person is to be found in article 9, there is no evidence that it was intended to narrow the concept of the right to security only to situations of formal deprivation of liberty . . . States are under an obligation to take reasonable and appropriate measures to protect [persons under their jurisdiction]. An interpretation of article 9 which would allow a State party to ignore threats to the personal security of non-detained persons within its jurisdiction would render totally ineffective the guarantees of the Covenant.1513

The failure of the Mexican government to respond to the abduction, murder, and disappearance of refugees and other migrants transiting through Mexico –

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person.” See also UN Human Rights Committee, “General Comment No. 35: Article 9 (Liberty and Security of Person)” (2014), UN Doc. CCPR/C/GC/35, Dec. 16, 2014, at [2]. L. Rehof, “Article 3,” in A. Eide et al. eds., The Universal Declaration of Human Rights: A Commentary 73 (1992) (Rehof, “Article 3”), at 77. UNGAOR (1948), Part I (Third Committee), at 189–190, cited in Rehof, “Article 3,” at 77. The duty has been specifically determined to apply to “aliens, refugees and asylum seekers”: UN Human Rights Committee, “General Comment No. 35: Article 9 (Liberty and Security of Person)” (2014), UN Doc. CCPR/C/GC/35, Dec. 16, 2014, at [3]. Ibid. at [9]. Delgado Paéz v. Colombia, HRC Comm. No. 195/1985, UN Doc. CCPR/C/39/D/195/ 1985, decided July 12, 1990, at [5.5]–[5.6].

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rightly described by the Inter-American Commission on Human Rights as “one of [the worst] human tragedies in the region”1514 – clearly breaches this duty to take reasonable and appropriate protective measures. The refusal of Greek police to take action despite clear evidence of stabbings and assaults on refugees by vigilantes armed with clubs and glass bottles1515 unless first paid a €100 fee similarly amounts to a refusal to honor that country’s duty to protect persons under their jurisdiction from risk to physical integrity. The duty to take “appropriate”1516 measures to guard against risks to the physical security of refugees calls into question the general policy of closed refugee camps, clearly proven to be breeding grounds for violence, in particular against refugee women and children. Jordan’s confinement of refugees at the Zaatari camp, triggering a “rapid escalation” in domestic violence,1517 makes the point in a tragic way. The duty to avoid known risks to physical security is also grounds for contesting the legality of the refusal of Greece to authorize refugees to live outside the Chios camp, thereby making them easy targets for the far-right mobs known to be intent on assaulting them there.1518 Conversely, Australia failed in its duty to ensure security of person by denying refugees on Manus Island the possibility of remaining inside the camp where they felt safe, forcing them instead to move to a part of the island where it was well known that anti-foreigner sentiment was high and where refugees had been previously attacked.1519 France’s demolition of the Calais camps, occupied predominantly by Afghan refugees, effectively forced Afghan and Kurdish refugees into shared facilities.1520 By not considering the risk of violence inherent in forcing culturally dissonant groups into grossly overcrowded conditions, the government failed to exercise the forward-looking vigilance that Art. 9 requires. The Human Rights Committee’s insistence on the importance of taking “appropriate” steps to avert known risks to physical security moreover requires real attention to the risks of vulnerable groups, including women – thereby calling into question, for example, failures by Sweden and Germany to provide gender-separated toilets and sleeping quarters in refugee shelters1521 and by France to read the meaning of refugee women in its reception centers requesting diapers in order to avoid having to go to the toilet at night.1522 Mexico’s unwillingness to assist gay refugees to avoid detection by the Central American gangs from which they fled1523 also bespeaks a breach of the duty to ensure security of person, contrasting markedly with the exemplary decision of 1514 1516

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See text at note 1334. 1515 See text at notes 1402–1403. UN Human Rights Committee, “General Comment No. 35: Article 9 (Liberty and Security of Person)” (2014), UN Doc. CCPR/C/GC/35, Dec. 16, 2014, at [9]. See text at note 1374. 1518 See text at note 1389. 1519 See text at note 1396. See text at notes 1364, 1397. 1521 See text at note 1368. 1522 See text at note 1369. See text at note 1391.

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Germany and Italy to open shelters specifically designed to meet the needs and concerns of sexual minority refugees.1524 Art. 9(1) would not, however, be a sufficient source of protection for the Vietnamese asylum-seekers attacked by Thai pirates.1525 While Art. 9(1) would require Thailand to protect refugees passing through its territorial waters, and arguably through any contiguous zone declared by it,1526 human rights law does not impose an obligation to reach out to refugees attacked in adjacent portions of the high seas. Because no state is bound to afford protection of human rights in parts of the res communis unless it has appropriated jurisdiction over that international territory, even the broad-ranging protection of Art. 9(1) cannot establish state responsibility for all threats to the physical security of refugees in search of asylum.1527 With the exception of this critical territorial gap, Arts. 6, 7, and 9 of the Civil and Political Covenant taken together provide a relatively sound foundation for protection of the physical security of refugees. While these duties do not, of course, insulate refugees from risks to their physical security, they can be invoked by refugees to require governments of transit and asylum countries both to avoid negative acts, and to take affirmative steps to counter privately inflicted risks to their well-being.

4.4 Necessities of Life Most refugees are not immediately able to meet their own needs for food, water, shelter, and healthcare. Because the flight to safety cannot always be planned, and because the logistics of travel often make it impossible for refugees to bring significant resources or provisions with them, even refugees who were self-sufficient in their homeland typically depend on the generosity of the asylum country for survival. Yet there is a strong case that refugees can often achieve a measure of self-sufficiency fairly quickly through farming, small-scale business, or wage-labor. The case of Mozambican refugees who went to Swaziland shows the ability of refugees to meet their own basic needs when provided with opportunities for self-sufficiency by the host community: These refugees began to arrive in Swaziland in late 1984. The majority did not receive any international aid, relying instead on their own economic 1524 1526 1527

See text at note 1366. 1525 See text at note 1335. See generally Chapter 3.1.1 and Chapter 3.1.2 at notes 109–110. Thus, for example, UNHCR’s response to the attacks on Vietnamese refugees was to address “an urgent call to all interested Governments to take appropriate action to prevent such criminal attacks whether occurring on the high seas or in their territorial waters” by, for example, undertaking increased sea and air patrols, identifying and prosecuting those responsible, and implementing fully the rules of general international law relating to the suppression of piracy: UNHCR Executive Committee Conclusion No. 20, “Protection of Asylum-Seekers at Sea” (1980), at [(c)–(e)].

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activities and on assistance from local villagers . . . While the refugees did not own land, some received the use of small plots from Swazi farmers who played host to them. In order to meet all their needs, refugees undertook a variety of work. They worked for small farmers, or on large commercial farms, or set themselves up as artisans or traders.1528

Particularly when start-up assistance is made available, refugees can quickly become self-sufficient. This was the case, for example, when the international humanitarian agency AfriCare assisted refugees from Angola and the Democratic Republic of Congo to establish and run enterprises in a Namibian refugee camp: The refugees, mostly women, work as volunteers in an agro-forestry project in the camp, planting trees and growing vegetables . . . [T]he project was developed to educate refugees and also to help them grow their own food to supplement their diet. The refugees have planted fruit trees, mostly papayas . . . Although it is a refugee camp for more than 20,000 refugees . . . there is an open market . . . Items sold at the market are fish, baked cakes, cooking oil, vegetables and various other consumables. Besides the open market, the camp features a “guesthouse” and a number of restaurants and shops owned and run by the refugees themselves.1529

Similarly, in Zambia, farming lessons and “agro-loans” – in which fertilizer and other materials provided during the planting season are repaid in harvested crops – enabled residents of the Meheba camp to sell their leftover produce to a nearby mining community.1530 A similar program in Mozambique, which emphasized vocational skills in a variety of areas such as agriculture, welding, and carpentry, facilitated the employment of refugee residents in local cities.1531 In truth, refugees may actually prove to be agents for development of local economies.1532 A study of two settlements in Uganda found that 1528 1529 1530

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D. Keen, Refugees: Rationing the Right to Life (1992) (Keen, Right to Life), at 60–61. “Self-Help Initiative at Osire Refugee Camp,” Namibian Economist, June 7, 2002. D. Kaunda, “Refugees Zambia: Making a Home for Themselves,” Inter Press Service, Aug. 19, 2008; see also K. Shimo et al., “Refugees in Zambia Receive the Skills to be Selfsufficient,” Feb. 13, 2008. “The programme’s goal is to have families operate independently in six months, assisting with marketing but leaving the purchase of feed to them. The start-up resources – repaid by participants in the programme – can then be used for other families”: J. Redden and R. Redmond, “UNHCR Gives Refugees in Mozambique the Skills to be Self-sufficient,” Jan. 2, 2007. Refugees arriving in developed countries are also net economic contributors. A study in the United States, for example, showed that between 2005 and 2014 refugees contributed $63 billion more to the US economy than they cost: J. Hirschfeld Davis and S. Sengupta, “Trump Administration Rejects Study Showing Positive Impact of Refugees,” New York Times, Sept. 18, 2017.

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[f]or every refugee household in Uganda receiving cash aid from the [World Food Program], the local economy was boosted by more than $1,100 dollars a year . . . These families [who received plots of land] contributed more positively to the local economy than those not given their own land, boosting it by an additional $220 a year, as they hire agricultural labour from other households and purchase tools and supplies from local businesses.1533

Indeed, Betts and Collier report that “in Kampala, 21% of refugees run a business that creates jobs, and, of their employees, 40% are citizens of the host country. In other words, refugees are making jobs not just for one another but also for host nationals.”1534 Regrettably, states too often fail to capitalize on the ability of refugees to make real contributions to meeting their own needs. Under Ireland’s direct provision program, for example, persons seeking protection receive bed and board, a weekly allowance,1535 medical cards, and other discretionary payments, but may not work or pursue self-employment.1536 In reviewing the program’s performance since its introduction as a temporary measure in 2000,1537 one study found that it “fosters social exclusion, creates and exacerbates mental health problems, causes food poverty, has a deleterious impact on family life and on the rights of the child, and creates dependency and prevents integration.”1538 1533

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A. Withnall, “Welcoming Refugees with Plots of Land and Cash ‘Gives Boost to Local Economy,’” Independent, Oct. 28, 2016. A. Betts and P. Collier, Refuge: Transforming a Broken Refugee System (2017), at 165. See also A. Betts et al., Refugee Economies: Forced Displacement and Development (2017). The weekly direct provision allowance (now termed a “daily expenses allowance”) is €29.80 for children and €38.80 for adults as of March 2019: “Services and entitlements for people seeking asylum,” www.citizensinformation.ie/en/moving_country/asylum_seekers_and_re fugees/services_for_asylum_seekers_in_ireland/direct_provision.html, accessed Feb. 10, 2020. C. Smyth, “Chronicle of a Reform Process: The Irish Working Group on Protection,” (2016) 29(3) Journal of Refugee Studies 388, at 391–392. “Direct provision was introduced in 2000 as a short-term response to a rapidly increasing number of asylum seekers which threatened to overwhelm the social welfare system at that time. However, 15 years on and despite a sharp decline in the number of persons seeking asylum in Ireland, mentioned earlier, direct provision has become an institution . . . [W]hat distinguishes direct provision from reception conditions in other EU Member States is the length of time persons are required to reside there. Owing to the delays in the protection and associated immigration procedure, outlined above, the average length of stay in direct provision is four years, with some people living in direct provision for more than 10 years:” ibid. at 392. Ibid. at 392. A recent report found that when in receipt of direct provision, “[y]ou have forfeited not only agency but also privacy. You regress”: M. Gessen, “Ireland’s Strange, Cruel System for Asylum Seekers,” The New Yorker, June 14, 2019. Indeed, the High Court of Ireland determined that “[u]nduly lengthy exposure to ‘direct provision’ may well be injurious and thus unlawful”: CA v. Minister for Justice and Equality, [2014] IEHC 532 (Ir. HC, Nov. 14, 2014), at [10.8].

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4.4.1 Freedom from Deprivation Even where there are few if any surplus resources available, countries may make heroic efforts to receive refugees in dignity. In 1984, for example, acute food shortages forced Nicaragua to introduce a national rationing system for its own citizens. Each household was allowed to buy only a fixed quantity of sugar, cooking oil, rice, laundry soap, beans, and salt, at prices fixed by the government.1539 Yet when 20,000 largely destitute Salvadoran refugees arrived to seek protection in Nicaragua, they were assimilated to nationals for purposes of participation in the rationing scheme. Other governments have, however, reacted less generously to the challenge of protecting refugees in difficult circumstances. Faced with a critical shortfall in donor aid during a drought in the late 1980s,1540 the Ethiopian government refused to allow deliveries of food aid to refugees living in areas under rebel control.1541 Colombian refugees in Venezuela were effectively denied food rations when the government instituted a quota system based on residents’ national identification numbers. The refugees’ lack of official documents translated into an inability “to access official food lines. Even for those with papers, being a Colombian can prove problematic; guards pick[ed] out foreigners based on their ID number and force[d] them out of the queue.”1542 In extreme cases, states may seek literally to starve refugees out of their territory. In one of the worst examples, in November 2000 the Pakistani government decided that it would refuse international aid for its massive Afghan refugee population as part of its strategy to drive the refugees back home. It even denied the UN access to one of the main refugee camps, where conditions had become predictably horrific: Tens of thousands have been camped in the open since January [2001] and the government has refused to let the UN High Commissioner for Refugees provide basic amenities for the new arrivals. The UNHCR said that more than 80,000 were squatting in squalid conditions on a strip of 1539

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J. Collins et al., Nicaragua: What Difference Could a Revolution Make? (1985) (Collins et al., Nicaragua), at 228–229. UNHCR, “Feeding the Hungry,” (1996) 105 Refugees 16. International relief programs have generally been plagued by budget reductions since the early 1980s, even as the size of the world refugee population was increasing. “A smaller pie divided into an ever larger number of pieces has meant that, on average, each refugee receives fewer resources”: Keen, Right to Life, at 36–37. US Committee for Refugees, World Refugee Survey 1991 (1992), at 41. Some food aid nonetheless managed to reach rebel-held areas when donor governments rerouted their assistance to NGOs, which organized a cross-border operation to reach starving persons in Eritrea and Tigray, coordinated by Norwegian Church Aid and the Relief Society of Tigray: D. Turton, personal communication to the author, Aug. 25, 1999. E. Dickinson, “Colombia Preps Contingency Plans for Arrivals from Venezuela,” Devex, Aug. 19, 2016.

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land in Jalozai, and more were arriving each day. The camp is known to aid workers as “Plastic City,” because of the cheap plastic bags being used as tents. Faced with overflowing latrines and limited drinking water, the refugees, particularly the children, are dying almost daily.1543

Sadly, the actions of the Pakistani government are not unique. Other governments have also denied refugees the necessities of life in order to force them home or to deter other refugees from arriving. When refugees from the Democratic Republic of Congo, Rwanda, and Somalia protested the decision of Swaziland to stop paying them support allowances – their only means of supporting themselves – the government responded by arresting them and ordering their expulsion from the country.1544 Citing the Thai military’s restriction of food and medical services for Lao Hmong refugees, Médecins Sans Frontières was compelled to cease operations in the Huay Nam Khao camp in 2009.1545 In an effort to make life unbearable, Malaysian officials confined Vietnamese refugees to longhouses in which they had only two square meters of living space per person. Of the sixty-one longhouses used to shelter refugees, ten were moreover declared structurally unsound by the Malaysian Red Crescent Society.1546 When refugees from Cuba protested in Quito, the Ecuadoran government responded by withholding access to food and water before ordering their expulsion.1547 Essentials may also be withheld from refugees out of ethnic, religious, or other antagonism. For example, Iraqi Kurds in Turkey were forced to live in camps 1543

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E. MacAskill, “Pakistan Keeps Annan from ‘World’s Worst’ Camp,” Guardian, Mar. 13, 2001, at 14. “Although refugees continued to slip in, at year’s end the border remained officially closed to them. The Pakistan government was labeling all new arrivals ‘illegal immigrants.’ It continued to refuse UNHCR permission to create new camps to accommodate arriving refugees, and insisted that Afghanistan is now peaceful and that Afghan refugees must return home”: US Committee for Refugees, World Refugee Survey 2001 (2001), at 163. In January 2015 the Government of Pakistan announced that the repatriation of all Afghans by the end of 2015 was a key plank of its antiterrorism plan: Z. Siddiqui, “For Afghan Refugees, Pakistan is a Nightmare – but Also Home,” Foreign Policy, May 19, 2019. “Swaziland Deports 65 Refugees,” Mail & Guardian, Sept. 4, 2002. “Aid Group Withdraws,” Radio Free Asia, May 20, 2009. “The army has hindered access to the aid group’s facilities, including its clinic, and has added checkpoints throughout the camp, intimidating both refugees and workers . . . [T]he military has tried several tactics to pressure the refugees to return to their homeland, including asking the group to restrict food handouts and jailing some camp leaders on flimsy pretexts.” The policies also placed the health of refugees in jeopardy, as was the case with one woman “who had to be pulled through a barbed wire fence to get to the clinic to give birth . . . [A]nother almost died in childbirth because of delays”: G. Peck, “French Aid Group Stops Work at Thai Refugee Camp,” San Diego UnionTribune, May 20, 2009, citing Gilles Isard, director in Thailand of Médecins Sans Frontières. In a one-day operation, the Thai government later evicted and returned the camp population of over 4,000 refugees to Laos: S. Mydans, “Thailand Evicts 4,000 Hmong to Laos,” New York Times, Dec. 28, 2009. US Government Accounting Office, “Refugees: Living Conditions are Marginal,” Doc. No. UNGAO/NSIA-91-258 (1991) (US, “Living Conditions”), at 42–43. J. Miguel Vivanco, “Dispatches: Dozens of Cubans Expelled from Ecuador,” July 11, 2016.

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which had open privies infested with flies and insects.1548 The necessities of life may also be denied to refugees as part of a strategy to punish them for actual or perceived misdeeds. Kenya revoked the licenses of several remittance firms – a primary source of Somali refugees’ livelihood – following Al-Shabaab’s attack on university students in Garissa.1549 Similarly, Nigerian refugees in Cameroon’s Minawao camp faced food restrictions and physical abuse following attacks by Boko Haram;1550 refugees in other parts of the country were forcibly returned to Nigeria.1551 Refugee Convention, Art. 20 Rationing Where a rationing system exists, which applies to the population at large and regulates the general distribution of products in short supply, refugees shall be accorded the same treatment as nationals. Civil and Political Covenant, Art. 6(1) Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life. 1548

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“Privies are situated in full sunlight, without any possibility of flushing them with water . . . In the privies, faeces and other filth are piled up in the open air, covered with countless flies and other insects . . . The drainage of the camp runs off in small ditches that have been dug provisionally between the tents and along the paths. The stench is ferocious, and here too there are countless swarms of flies”: German Bundestag Member Angelika Beer, June 12, 1989, cited in Initiative for Human Rights in Kurdistan, “Silence is Killing Them: A Report on the Situation of the Kurdish Refugees in Turkey” (1990) (IHRK, “Kurdish Refugees”), at 15. Although the measure was purportedly designed to “curb the financing of terrorism,” its effect was heavily felt by refugees forcibly removed to the Dadaab camps in the days following the attack: “In Dadaab, which consists of several separate camps, there are some 30 remittance outlets, outside of which hundreds of customers queue every day to collect money sent by friends and relatives abroad. Recipients spend the money on food, clothes, medicine and education. Even firms not on the list have now suspended their businesses, for fear of harassment by police”: “Somali Refugees Feel Remittance Pain after Kenya Attack,” IRIN News, April 10, 2015. “Since May 2015, according to a UNHCR official, the camp has been ‘operating beyond maximum capacity’ and ‘the congestion makes it challenging to provide sufficient quantities of potable water, prevent outbreaks of diseases, and provide services and assistance that are in line with minimal international humanitarian standards.’ . . . Cameroon has repeatedly rejected UNHCR’s proposals since 2016 to set up a second camp for Nigerian refugees”: Human Rights Watch, “‘They Forced Us onto Trucks like Animals’: Cameroon’s Mass Forced Return and Abuse of Nigerian Refugees,” Sept. 2017, at 17. Conditions attending the camp included severe shortages in food and limited or no access to potable water and healthcare: “Some said they believed camp officials were misappropriating food and that refugees were given considerably less food than the official ration. Others described how rice rations were replaced with corn rations, which made many sick. Refugees also told Human Rights Watch an exodus of thousands of refugees from the camp in April and May 2017 was in protest of the food shortages in the camp at that time and the lack of hope in rectifying long-term food shortages”: ibid. at 18. R. Maclean, “Tortured, Abused, Deported: Cameroon Accused of Driving Out Nigerians,” Guardian, Sept. 27, 2017.

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Civil and Political Covenant, Art. 7 No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment . . . Civil and Political Covenant, Art. 9(1) Everyone has the right to liberty and security of person . . . Civil and Political Covenant, Art. 10(1) All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. In some cases, depriving refugees of the necessities of life may give rise to a breach of the duty of non-refoulement. Repatriation under coercion, including situations in which refugees are left with no real option but to leave, is in breach of Art. 33 of the Refugee Convention.1552 As such, Swaziland’s decision to deny refugees any means of support, then to arrest and remove them when they protested their situation,1553 was in substance an act of refoulement. Even when repatriation does not in fact result, core norms of the Civil and Political Covenant already examined may be contravened by such deprivations.1554 Because the right to life set by Art. 6(1) of the Civil and Political Covenant “is the supreme right . . . [and] should not be interpreted narrowly,”1555 it prohibits threats to human life brought about not just by intentional killing, but also by foreseeable malnutrition and life-threatening illness.1556 Ecuador’s withholding of food and water from Cuban refugees in order to prevent them from engaging in peaceful free speech1557 was thus in breach of the duty under Art. 6(1) to protect the right to life. So too was the decision of the Thai government expressly to cut off all food deliveries to refugees held in their camps in the hope of deterring further arrivals;1558 indeed, this action also breached Art. 10(1)’s duty to treat all detained persons with humanity and respect.1559 Nor is Art. 6(1) simply a prohibition of negative conduct; it rather requires states to ensure a minimal standard of positive action to protect the right to life.1560 While governments enjoy broad discretion to decide how to implement Art. 6(1), they fail to meet their obligation if whatever measures taken are manifestly insufficient relative to known risks to life.1561 1552 1554

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See Chapter 4.1.2 at notes 257–261. 1553 See text at note 1544. The implications of Arts. 6 (life), 7 (torture, cruel, inhuman, degrading treatment or punishment), 9 (physical security), and 10 (rights of detainees) of the Civil and Political Covenant are discussed in detail in Chapter 4.3. UN Human Rights Committee, “General Comment No. 36 (2018) on Article 6 of the International Covenant on Civil and Political Rights, on the Right to Life,” UN Doc. CCPR/C/GC/36, adopted Oct. 30, 2018, at [2]–[3]. Schabas, Nowak’s CCPR Commentary, at 126–127. 1557 See text at note 1547. See text at note 1545. 1559 See discussion of Art. 10(1) in Chapter 4.2.4, note 1317. See Chapter 4.3.1. 1561 Schabas, Nowak’s CCPR Commentary, at 125.

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Where the known risk is less clearly linked to immediate survival, actions to deprive refugees of the necessities of life may still violate the duty to respect physical security under Art. 9 of the Civil and Political Covenant.1562 For example, the determined effort of Pakistan to create near-complete misery in Afghan refugee camps by refusing foreign aid1563 should be seen as a breach of Art. 9. Art. 9 also prohibits the sort of collective punishment by deprivation of the necessities of life imposed by Kenya1564 and Cameroon1565 on refugees ethnically linked to perceived security risks. More generally, Art. 9’s guarantee of security of person requires governments to take reasonable and appropriate measures to respond to known threats to basic personal well-being. A situation in which food rations provided to refugees are known to be so qualitatively deficient in terms of providing essential vitamins and nutrients that lifethreatening illness is the predictable result would therefore also logically fall afoul of the duty to ensure the physical security of refugees. Denial to refugees of the necessities of life may moreover contravene Art. 7’s prohibition of cruel, inhuman, or degrading treatment or punishment.1566 In refusing to allow return by Belgium of a refugee to Greece, for example, the European Court of Human Rights noted that [w]ith no means of subsistence, [the claimant], like many other Afghan asylum seekers, has lived in a park in the middle of Athens for many months. He spent his days looking for food. Occasionally he received material aid from local people in the church. He had no access to any sanitary facilities. At night he lived in permanent fear of being attacked and robbed. He submitted that the resulting situation of vulnerability and material and psychological deprivation amounted to [inhuman or degrading treatment or punishment].1567

Similarly, the UN Human Rights Committee determined that imprisonment in a tiny space of virtually the exact size allocated to each Vietnamese refugee in Malaysian longhouses1568 was a form of inhuman treatment.1569 As the House of Lords determined, there is a positive duty on the state to intervene when it appears on a fair and objective assessment of all relevant facts and circumstances that an individual applicant faces an imminent prospect of serious suffering caused or materially aggravated by denial of shelter, food 1562 1565 1567 1568 1569

See Chapter 4.3.3. 1563 See text at note 1543. 1564 See text at note 1549. See text at notes 1550–1551. 1566 See generally Chapter 4.3.2. MSS v. Belgium and Greece, Dec. No. 30696/09 (ECtHR, Jan. 21, 2011), at [238]–[239]. See text at note 1546. Exacerbating factors in the cases considered by the Human Rights Committee included the absence of light and incommunicado detention: Marais v. Madagascar, HRC Comm. No. 49/1979, UN Doc. CCPR/C/18/D/49/1979, decided Mar. 24, 1983; Wight v. Madagascar, HRC Comm. No. 115/1982, UN Doc. Supp. No. 40 (A/40/40), at 171, decided Apr. 1, 1985.

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or the most basic necessities of life. Many factors may affect that judgement, including age, gender, mental and physical health and condition, any facilities or sources of support available to the applicant, the weather and time of year, and the period for which the applicant has already suffered or is likely to continue to suffer privation.1570

Even less egregious denials of adequate accommodation may violate the Civil and Political Covenant. Because of the special duty of care owed to detainees under Art. 10(1), the extraordinarily unhygienic conditions to which Iraqi Kurds were subjected in Turkish camps1571 would likely be seen as a form of inhuman treatment.1572 And because Art. 7 also prohibits degrading treatment, it is contravened by conduct outside the context of enforced detention which shows a fundamental disregard for the refugee as a person.1573 For example, where food is withheld from refugees in order to extort sexual favors, officials demonstrate the willingness to demean and objectify their victim that is the essence of degrading treatment. As Eide has observed, The essential point is that everyone shall be able, without shame and without unreasonable obstacles, to be a full participant in ordinary, everyday interaction with other people. This means, inter alia, that they shall be able to enjoy their basic needs under conditions of dignity. No one shall have to live under conditions whereby the only way to satisfy their needs is by degrading or depriving themselves of their basic freedoms, such as through begging, prostitution or bonded labour.1574

The drafters of the Refugee Convention, however, paid surprisingly little attention to the importance of meeting the basic needs of refugees who arrive to seek protection. While they gave detailed attention to a variety of relatively sophisticated socioeconomic rights (for example, access to social security, fair treatment under tax laws, and even the protection of refugees’ intellectual 1570

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R (Limbuela) v. Secretary of State for the Home Department, [2005] UKHL 66 (UK HL, Nov. 3, 2005), at [8], per Bingham L.J. As Baroness Hale insisted, whatever the government’s objectives, “it is of the essence of the State’s obligations not to subject any person to suffering which [amounts to inhuman or degrading treatment] that the ends cannot justify the means”: ibid. at [77]. See text at note 1548. See e.g. Cabal and Pasini Bertran v. Australia, HRC Comm. No. 1020/02, UN Doc. CCPR/C/78/D/1020/2001, decided Aug. 7, 2003 (one-hour placement in a holding cell resembling small cage breached Art. 10(1)); Brough v. Australia, HRC Comm. No. 1184/ 03, UN Doc. CCPR/C/86/D/1184/2003, decided Mar. 17, 2006 (extended solitary confinement in a “safe cell” for seventeen-year-old Aboriginal inmate with mental disability, exposure to artificial light for prolonged periods, removal of clothes and blanket violated Art. 10(1)). See Chapter 4.3.2. A. Eide, “The Right to an Adequate Standard of Living, Including the Right to Food,” in A. Eide et al. eds., Economic, Social and Cultural Rights: A Textbook 133 (2001)(Eide, “Standard of Living”), at 133.

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property), the Convention does not address rights to food, water, or healthcare, and only regulates access to public housing for refugees once they are lawfully staying in a given country. A variety of explanations may be offered. Most of the European states that drafted the Convention were accustomed to receiving refugees under orderly entry arrangements. Such refugees, who were immediately authorized to enter either permanently or for an extended stay, would automatically enjoy the right to engage in wage-earning or professional work. As refugees were almost always fellow Europeans, they normally possessed compatible skills, and could therefore be expected to meet basic needs from their own income. Even when refugees arrived without pre-authorization, governments in the 1940s and 1950s were still able to process these irregular entrants fairly quickly. The refugees’ own assets could therefore usually see them through until their claims were recognized and work authorization granted. More generally, the Refugee Convention predates the advent of the Western social welfare state. So long as refugees could earn their own living and benefit from basic property rights, they enjoyed essentially as much protection as did most nationals. And in any event, it was assumed that UNHCR would take the lead on such issues given its institutional responsibility to administer public and private funds for material assistance to refugees.1575 The one relevant concern addressed, however, was access by refugees to essential goods not distributed on the open market.1576 Because so many key goods had been rationed during the just-concluded Second World War, the drafters were concerned to ensure that all refugees, whether arriving with or without authorization,1577 and whether present only temporarily or indefinitely,1578 be included in any state-managed distribution systems that might be set up by asylum countries. While far from a guarantee that even basic necessities will in fact be provided to refugees, Art. 20 of the Convention 1575

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Statute of the Office of the United Nations High Commissioner for Refugees, UNGA Res. 428(V), adopted Dec. 14, 1950, at [10]. The United Nations had agreed to establish UNHCR in December 1949: UNGA Res. 319(IV). Robinson suggests that the value of Art. 20 is really quite modest. “It is rather unusual to treat aliens in the matter of rationing differently than nationals. Thus, the Convention only sanctions the general usage but, at the same time, strives to prevent a less favorable trend in any Contracting State”: Robinson, History, at 119. In a critical exchange, the American representative observed “that some of the articles did not specifically indicate to which refugees they applied. He presumed that the mention of ‘refugees’ without any qualifying phrase was intended to include all refugees, whether lawfully or unlawfully in a territory”: Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.41, Aug. 23, 1950, at 18. The immediate and unchallenged response of the Chairman was “that the United States representative’s presumption was correct”: Statement of the Chairman, Mr. Larsen of Denmark, ibid. “If a national were passing through a town for a day and received a day’s rations, so would a refugee”: Statement of Sir Leslie Brass of the United Kingdom, ibid. at 19.

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ensures that refugees are assimilated to citizens for purposes of receiving allocations under rationing systems. If the rationing system provides that citizens receive vital goods free of charge, then so too must similarly situated refugees. But if the rationing system merely allocates quantities of goods that may be purchased, then the only right of refugees is to purchase goods through that allocation scheme. There was discussion in the Ad Hoc Committee regarding the type of rationing systems in which refugees should have a right to participate. The Secretary-General’s draft spoke only of systems to distribute items “of prime necessity.”1579 There was agreement among the drafters that any system for the rationing of accommodation would be exempt from Art. 20, since housing is separately addressed by Art. 21 of the Convention.1580 It was also agreed that refugees were only to have equal access to systems for the rationing of consumer goods, not products of all kinds. An American proposal that Art. 20 should apply to all “commodities in short supply”1581 was criticized by the French representative as “too far-reaching. Governments might be encouraged to ration commodities in short supply, such as common or precious metals, because they were of particular use to the country. The text of the article should make it clear that it concerned essential goods for individual use.”1582 The Ad Hoc Committee’s recommendation therefore referred to the rationing of “products” (rather than commodities).1583 Suggestions were made to further circumscribe the scope of Art. 20 by limiting its scope to rationing systems for “foodstuffs” and related items,1584 or to exclude gasoline rationing systems.1585 But the comments forwarded to the Conference of Plenipotentiaries endorsed neither of these proposed limitations.1586 In order to bring the text of Art. 20 into alignment with the 1579 1580

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Secretary-General, “Memorandum,” at 38 (draft Art. 18). While the American representative voiced concern that the housing needs of refugees be addressed (Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.15, Jan. 27, 1950, at 4), the notion that housing allocation schemes should be deemed “rationing systems” was successfully opposed by the French representative (Statement of Mr. Rain of France, ibid. at 3). The Chairman concluded from the debate “that provisions regarding housing should not be included in the article on rationing; it would be better to state these in a separate article”: Statement of the Chairman, Mr. Chance of Canada, ibid. at 4. Statement of Mr. Henkin of the United States, ibid. at 5. Statement of Mr. Rain of France, ibid. at 5. “This article applies to the generally recognized systems of rationing, which apply to the population at large and regulate the general distribution of products in short supply”: “Comments of the Committee on the Draft Convention relating to the Status of Refugees,” Annex II to Ad Hoc Committee, “First Session Report,” at 4. Statement of Mr. Cuvelier of Belgium, UN Doc. E/AC.32/SR.15, Jan. 27, 1950, at 5. Statement of Sir Leslie Brass of the United Kingdom, ibid. But see Weis, Travaux, at 160: “It follows from the debate that it refers to consumer goods in short supply, not to commodities for commercial or industrial use. Petrol was also mentioned as not being included.”

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explanatory comments,1587 the Conference determined that refugees would be entitled to benefit as equals from rationing systems established for all “products in short supply.”1588 The absence of any qualification suggests that refugees are entitled fully to participate in any system for the rationing of any consumer good.1589 Nicaragua’s decision fully to enfranchise refugees for purposes of access to its national rationing program is therefore a stellar example of compliance with Art. 20. Even though Nicaragua experienced extraordinary difficulty in meeting the basic needs of its own population (due to a combination of absolute shortages, production and transportation difficulties, and the American government’s policy of economic destabilization),1590 refugee households were given access to its rationing system on terms of equality with nationals. On the other hand, Venezuela’s refusal to grant Colombian refugees access to rationing based on the formalist argument that they did not have a national identity card1591 – which the government would not provide them – was in breach of Art. 20. One concern expressed was that Art. 20 might inadvertently require the abolition of preferential rationing systems for refugees. As the Chinese representative explained, his government had treated refugees and Chinese citizens differently under rationing systems in force during the Second World War. China had provided the Jewish and other European refugees with food rations more appropriate to their own dietary requirements and preferences. These refugees received more flour and sugar than did Chinese citizens, while the Chinese received more rice than the refugees.1592 The Chairman replied that the original language of Art. 20, requiring that refugees be dealt with under rationing systems “on the same footing as nationals,”1593 meant only that refugees “would not be treated less favorably than nationals.”1594 Without 1587 1588

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Statement of Mr. Robinson of Israel, UN Doc. E/AC.32/SR.37, Aug. 16, 1950, at 21. This language was drafted by the Style Committee (UN Doc. A/CONF.2/102, July 24, 1951, at 11), and adopted by the Conference without discussion: UN Doc. A/CONF.2/ SR.35, July 25, 1951, at 5. The French representative observed that “[I]n practice, rationing did apply principally to foodstuffs; that, however, was a question of usage which could not affect the etymological meaning of the word ‘rationing.’ He pointed out that, during the Second World War, products other than foodstuffs – textiles, soap, petrol and so forth – had been rationed in France”: Statement of Mr. Rain of France, UN Doc. E/AC.32/SR.15, Jan. 27, 1950, at 3. See text at note 1539; and generally Collins et al., Nicaragua, at 218–219. See text at note 1542. Statement of Mr. Cha of China, UN Doc. E/AC.32/SR.15, Jan. 27, 1950, at 3. See also Statement of Mr. Cha of China, UN Doc. E/AC.32/SR.41, Aug. 23, 1950, at 19: “He hoped that the use of the words adopted would not mean that Governments would not give rations to refugees in accordance with their needs, even if such rations were larger than those given to nationals.” Secretary-General, “Memorandum,” at 38. Statement of the Chairman, Mr. Chance of Canada, UN Doc. E/AC.32/SR.15, Jan. 27, 1950, at 3.

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any discussion, however, the Conference of Plenipotentiaries opted to delete the reference to treatment “on the same footing” as nationals in favor of a recommendation from its Style Committee that refugees receive “the same treatment” as nationals under rationing systems.1595 It is possible that the drafters intended to insist on formal equality of rations between refugees and nationals to avert the possibility of abuse under the guise of recognition of cultural or other differences. The more likely scenario, however, is that the phrase “on the same footing as nationals” was simply viewed as out of keeping with the ways in which standards of treatment are defined elsewhere in the Convention.1596 In view of the general practice in international law of defining equality to mean substantive equality,1597 Art. 20 should therefore be understood to authorize some measure of operational flexibility to ensure that refugees are in fact dealt with no less favorably than nationals.1598 While Art. 20 governs access only to a rationing system “which applies to the population at large,” this does not exclude comparably situated refugees from accessing domestic rationing systems set up for particular sub-populations. The intention of the drafters was that refugee status (or non-citizenship) not be a basis for withholding rations from refugees. Thus, the American representative noted that Art. 20 applies to systems under which “different rations [are established] for different categories of people, for example, for children.”1599 A rationing system that provides goods only for children is a system which applies to a designated part of “the population at large,” in consequence of which refugee children should receive the same rations as citizen children. But if the rationing program is designed only to benefit children, adult refugees have no claim to entitlement under it.1600

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UN Doc. A/CONF.2/SR.35, July 25, 1951, at 5. Even the American representative to the Ad Hoc Committee, who had championed the logic of the phrase “on the same footing as nationals,” conceded that “[h]e had no particular brief for the use of such a wording”: Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.41, Aug. 23, 1950, at 19. See generally Chapter 3.3.2. See Chapter 1.5.5. See also E. Lester, “Article 20,” in A. Zimmermann ed., The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary 993 (2011) (Lester, “Article 20”), at 996 (“These exchanges suggest that a sufficient degree of flexibility was intended in the text to accommodate variations in rations for different categories of person[s], such as children, and to accommodate the particular needs of refugee populations”). Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.41, Aug. 23, 1950, at 19. Robinson reaches the same result, but on the basis of a different analysis. He suggests that “Art. 20 is not applicable to allocation of certain items in favor of restricted groups or to products which are generally available in sufficient quantities but are allocated to certain groups, for instance, indigent persons, large families, at or on more favorable prices or conditions. In such circumstances, Art. 7(1) would apply”: Robinson, History, at 119–120.

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Art. 20 of the Refugee Convention governs only access to rationing systems, that is, schemes established to distribute goods because those goods are in short supply. It is therefore not a basis for refugees to assert a right of access to public welfare or comparable systems which allocate basic necessities (or the funds to acquire them) on the basis of economic need, rather than because of the scarcity of the products themselves.1601 Most fundamentally, Art. 20 does not require the establishment of any kind of rationing system for refugees, no matter how extreme their needs. The only obligation is to ensure that refugees benefit on terms of equality with nationals under any rationing system that is established. If neither refugees nor citizens are provided with access to a rationing system – as was the case for those in rebel-held areas of Ethiopia, to which the government denied aid agencies access1602 – then Art. 20 of the Refugee Convention is not breached.1603 The more broadly applicable duty to provide refugees with the basic necessities of life must therefore be established under general norms of international human rights law as described below,1604 rather than by reliance on any specific requirement of the Refugee Convention itself.1605

4.4.2 Access to Food and Shelter Even where there is a willingness to help refugees meet their most basic needs, it is often impossible for local economies already facing shortages of land and jobs simply to accommodate all refugees who arrive. The problem is most critical in poorer countries of the South, where there tend to be larger refugee movements with fewer local resources to provide for them.1606 The challenge is of course most acute when host countries are themselves facing a crisis – as was

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This result is, in any event, compelled by the duty of non-discrimination under Art. 26 of the Civil and Political Covenant: see Chapter 1.5.5 at note 453. The right of refugees to access public welfare systems is discussed at Chapter 6.3. See text at notes 1540–1541. Despite the clear applicability of these more general norms to refugees (see Chapter 1.5.4) it is not sound to invoke the principle of lex lata to argue that such standards change the content or substance of Art. 20 of the Refugee Convention. But see Lester, “Article 20,” at 998–999. The denial of aid to these areas likely violated Art. 11 of the Economic Covenant, however. See Chapter 4.4.2. See text at note 1696 ff. 1605 See Chapters 4.4.2 and 4.4.3. As Castles has observed, in order to assess “the weight of the ‘refugee burden,’ [it is most] instructive . . . to relate refugee populations to the wealth of the receiving country . . . Refugees are overwhelmingly concentrated in the poorest countries. This puts the frequent Northern claims of being unfairly burdened by refugees in perspective”: S. Castles, “The International Politics of Forced Migration,” in L. Panitch and C. Leys eds., Fighting Identities: Race, Religion, and Ethno-Nationalism 172 (2002), at 174. As of 2019, “[c]ountries in developed regions hosted 16 per cent of refugees, while one third of the global refugee population (6.7 million people) were in the Least Developed Countries”: UNHCR, “Global Trends: Forced Displacement in 2018” (2019), at 2.

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the case during the 2017 droughts in South Sudan, Yemen, Somalia, and Nigeria, subjecting refugees and citizens alike to starvation.1607 In such circumstances, the survival of refugees has usually depended on international agencies providing a substantial supplement to local efforts.1608 Yet as UNHCR has acknowledged, “the rhetoric on international solidarity and burdensharing rarely translates into tangible support to refugee-affected areas. The international response has been uneven and often driven by political and economic considerations on the part of many donors.”1609 Because international refugee relief efforts are funded by voluntary state contributions, there is no guarantee that aid will be able to meet needs. For example, in 2001 a funding shortfall for the 20,000 Angolan refugees in Namibia’s Osire refugee camp resulted in severe food reductions: The funds available are only enough to buy 30% of the food needed . . . Food rations have already been reduced to 80% of the recommended basic monthly diet of 2,100 (17 kg) kilocalories. Due to the cut in rations, refugees now get only 8–10 kg of maize, their staple food.1610

Beyond inadequate food, the camp was home to more than ten times the number of refugees for which it had been constructed, resulting in shortages of all kinds: [T]he refugee camp . . . urgently needs at least 500 more family pit latrines because existing facilities have clogged up. And although . . . there are adequate water points at present . . . the rate at which refugees are arriving in the country makes it impossible to guarantee a steady supply [of water] . . . Apart from the scarcity of tents and kerosene for cooking food, the clinic at 1607

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“In all, more than 20 million people in Nigeria, South Sudan, Somalia and Yemen are experiencing famine or are at risk. The regions in which these countries sit, including the Lake Chad basin, Great Lakes, East, Horn of Africa and Yemen together host well over 4 million refugees and asylum seekers. Consecutive harvests have failed, conflict in South Sudan coupled with drought is leading to famine and outflows of refugees, insecurity in Somalia is leading to rising internal displacement, and rates of malnutrition are high, especially among children and lactating mothers. In the Dollo Ado area of southeast Ethiopia for example, acute malnutrition rates among newly arriving Somali refugee children aged between 6 months and five years are now running at 50–79 percent”: UNHCR, “UNHCR says Death Risk from Starvation in Horn of Africa, Yemen, Nigeria Growing, Displacement already Rising,” Apr. 11, 2017. “Almost half of the world’s refugees are totally dependent on international assistance for the basic needs of food, shelter, water, and health care”: Forbes Martin, Refugee Women, at 33. UNHCR Executive Committee, “Social and Economic Impact of Massive Refugee Populations on Host Developing Countries, as well as Other Countries: Addressing the Gaps,” UN Doc. EC/49/SC/CRP.24, Sept. 3, 1999, at para. 2. Namibian, May 2, 2001.

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Osire has been strenuously overstretched and more medical equipment and drugs are needed to combat possible disease outbreaks.1611

True disaster was thankfully averted at Osire because of a last-minute response from the Swedish and American governments.1612 But resort to cutbacks on even the most basic forms of assistance remains tragically common. A severe funding crisis forced the UN to cut food aid to Syrian refugees throughout the Middle East and North Africa in 2015,1613 and to reduce cereal rations to South Sudanese refugees in Uganda in 2017.1614 Similarly, once a peace process was underway in Burundi, UNHCR’s budget to operate refugee camps for Burundians in Tanzania was cut by 55 percent.1615 UNHCR was unable to persuade donors to make funds available to meet even basic needs in the camps of Tanzania’s Kibondo district, which continued to receive more than 100 Burundian refugees each day.1616 As the local UNICEF chief observed, “[w]hen things fizzle out in terms of CNN coverage, the funding starts to disappear.”1617 1611 1612

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Namibian, Dec. 1, 2000. Namibian, May 17, 2001; US Committee for Refugees, World Refugee Survey 2002 (2003), at 87. Z. Yun Tan, “Syrian Refugees Face Hunger amidst Humanitarian Funding Crisis,” Inter Press Service, July 2, 2015; “Funding Shorfall Forces UN Agency to Make Cuts in Food Aid to Syrian Refugees,” UN News Centre, July 1, 2015. Nor have such funding shortfalls abated. According to a 2017 report, sustained conflicts and hunger crises have led to rations cuts of 20 percent in Ethiopia and 10 percent in Rwanda, among other countries affected: P. Schemm, “A Widening Budget Gap is Forcing the UN to Slash Food Aid to Refugees,” Washington Post, Jan. 1, 2017. The shortcoming was attributed to an “inability to secure adequate cereal stocks, together with an average of more than 2,000 new arrivals fleeing from South Sudan daily, as well as a significant funding shortfall . . . The move, which took effect May 22, will see the monthly cereal rations cut in half for more than 800,000 South Sudanese refugees in Yumbe, Adjumani, Koboko, Arua and Moyo districts . . . Previously, all refugees were receiving 12 kg of cereals (maize, sorghum) every month. Due to severely limited stocks, demands from crises in South Sudan, Somalia, and Kenya, and the inability to resource additional supplies within the region, cereal rations have now been reduced by 50 percent. This has created anxiety amongst refugees as there is no clarity on when they will receive their next balanced ration. This reduction in ration size means that an active adult female will now receive the same amount of cereal recommended for an active three-year-old child”: L. Fisher, “Government of Uganda and World Food Program Forced to Reduce Food Rations for Nearly 800,000 Refugees,” May 28, 2017. “The Burundi peace talks in Tanzania last year, brokered by Nelson Mandela and visited by Bill Clinton, have done the refugees more harm than good. Most of the Hutu rebel groups were excluded and the initiative has come to nothing. But it was enough to send many donors elsewhere”: J. Astill, “UN Refugee Work in Crisis as World Ignores Burundi,” Guardian, Feb. 14, 2001, at 18. “Several operations in the refugee camps . . . have been severely curtailed or suspended altogether as a result of UNHCR’s funding problems . . . Fuel has been cut by 50%, soap distribution to refugees has been suspended, and all construction and training programs have been cancelled”: (2001) 85 JRS Dispatches (Jan. 17, 2001). Ibid., quoting Mr. Bjorn Lungqvist of UNICEF.

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Indeed, even as a massive effort was underway to assist refugees in flight from Kosovo, UNHCR reported that donations to existing operations had “stagnated,” meaning, for example, that funds were not available even to provide Somali refugees in Kenya with firewood for cooking.1618 A reporter wrote, “Far from safe havens, the camps [in Kenya] are so dangerous that aid workers venture into them only with armed escorts. And if the plight of ethnic Albanians has reintroduced the word ‘refugee’ to discourse around the world, no overflow of compassion has reached the dusty Somali settlements here.”1619 Yet financial shortfalls cannot always explain cuts in the provision of food aid, which may rather be the result of the political agendas. For example, the decision to reduce the nourishment received by Burundian refugees in Tanzanian camps to only 62 percent of the 2,100 recommended daily kilocalories1620 coincided suspiciously with the Tanzanian president’s call for the refugees to go home.1621 And a cut in food aid to Kenya’s Dadaab camp in 2017 meant Somali refugees who bought food on credit were increasingly forced to accept the UNHCR’s offer of $150 “voluntarily” to return to their country.1622 1618

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“‘I cannot tell you for a fact that the contributions to Kosovo have affected the contributions to the rest,’ said Michel Gabaudon, chief fund-raiser for the UN High Commissioner for Refugees . . . But donations to existing operations have ‘stagnated’ since the outpouring for the Balkans, Gabaudon reported, and ‘I have had donors say, “Where can you make cuts?’” ‘If funds are cut,’ he added, ‘your bottom line is water and food’”: K. Vick, “For Somali Refugees, No Safe Haven,” Washington Post, June 3, 1999, at A19. Ibid. The cuts were particularly tragic because the firewood program had obviated the need for women to scavenge for firewood in the bush, where they had been subjected to rape at a rate seventy-five times higher than would be expected in a community of that size: ibid. “WFP Cut Refugee Food Ration over Funding Constraints,” The Citizen, Aug. 28, 2017. As part of this strategy, President Magufuli also ordered the suspension of registration and naturalization of Burundian refugees: “‘It’s not that I am expelling Burundian refugees. I am just advising them to voluntarily return home,’ said Magufuli. ‘I urge Burundians to remain in their country, I have been assured, the place is now calm.’ But Joseph Siegle, director at the Africa Center for Strategic Studies in Washington, said Magufuli’s comments were ‘at odds with the situation on the ground, as all available reports on Burundi by the East African Community, African Union and UN demonstrate that the situation is getting worse and refugee numbers are increasing’. Tanzania hosts 241,687 Burundian refugees and asylum seekers, according to the latest statistics from the UN High Commissioner for Refugees, and Siegle said: ‘Magufuli’s desire for the Burundian refugees to return home reflects the strains that hosting the approximately 240,000 registered refugees is having on Tanzania. Indeed, Tanzania hosts more Burundian refugees than any other country’”: S. Okiror, “Tanzania President Under Fire for Urging Refugees to Return to ‘Stable’ Burundi,” Guardian, July 29, 2017. Before departing, refugees repaid their creditors with UNHCR repatriation funds so as to avoid further threats or harassment. Far from oblivious, “[t]he UN officials knew what was going on; they had even allowed a money changer onto the airstrip, so that the refugees could pay their debts in the local currency”: K. Sieff, “Crushed by Debt, Refugees

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Even when adequate resources are in principle provided to meet refugee needs, refugees may nonetheless face food and other shortages because of logistical barriers to the delivery of aid, especially when refugee camps are situated in remote regions. Food deliveries to the indigenous Nicaraguan refugees living in Honduras, for example, had to be suspended during the rainy season as their settlements could only be reached by canoe.1623 Rohingya refugees arriving in Bangladesh in 2017 experienced delays due to difficulty accessing their communities, which could be reached only via a narrow and over-traveled road.1624 Getting aid to refugees may also be difficult when they are located in areas surrounded by hostile forces. For example, insecurity and fighting along supply routes hindered aid access to Sudanese refugees in South Sudan, resulting in continuous food shortages affecting numerous camps.1625 And even when supplies do get through, theft and other calamities may mean that the aid may still not reach the refugees – as was the case when flooding in 2015 resulted in the loss of 85,000 food rations soon after they were delivered to Sahrawi refugees in Algeria.1626 Malnutrition may also stem from the rigid application by host states of general rules. For example, while shortfalls in international assistance accounted for much suffering at the Osire refugee camp in Namibia, the problems there were compounded by the host state’s initial refusal to waive its long-standing ban on importing the refugees’ staple food, maize meal.1627

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have Little Choice but to Return to War-Torn Somalia,” Washington Post, Dec. 15, 2017. Making clear its true goal, the Kenyan government persisted in efforts to close the Dadaab camp even after the High Court blocked that policy in 2017: N. Bhalla, “Kenya Orders Closure of Dadaab Refugee Camp this Year, according to Leaked UN Document,” Reuters, Mar. 29, 2019. US Government Accounting Office, “Central America: Conditions of Refugees and Displaced Persons,” Doc. No. UNGAO/NSIAD-89-54 (1989) (US, “Central America”), at 22. “Access to humanitarian aid is one of the biggest challenges. Most refugees live along the road bordering the district estuary. The narrow road, where most aid is distributed, is already congested with humanitarian convoys at certain points. Many refugees live further back from the road and find it difficult to access aid distributions. People with reduced mobility, such as older people or people with disabilities, also find it hard to reach assistance”: Handicap International, “80% of Rohingya Refugees Lack Food Aid,” Oct. 13, 2017. P. Rulashe, “Food Shortages in South Sudan Refugee Camps Stoke Mounting Anger,” May 7, 2014. UNHCR, “Algeria Refugee Response Plan for Flood Damage in Camps,” Nov. 2, 2015, at 7. Namibian, May 2, 2001. Because local maize prices were nearly double those of maize on the international market, the World Food Program (WFP) objected to the requirement. Yet again in 2003, “[a] request to the Namibian Agronomic Board to be excused from the import restrictions has been refused. The WFP has now requested the intervention of the Home Affairs Ministry to plead for this decision to be reconsidered”: “Food Shortage Looms for Osire Refugees,” Namibian, July 18, 2003. “The government imposed the ban

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Similarly, the Bangladeshi government refused to allow the UN to assist the 400,000 refugees arriving outside its two designated camps of operation.1628 In other circumstances, food shortages result from the failure of camp or other administrators to plan for and properly to oversee the distribution of aid.1629 In Ethiopia, for example, the diversion of food to both Sudanese and Somali rebel movements was considered widespread.1630 Budget cuts had reduced the number of UNHCR staff assigned to monitor food distribution, in consequence of which “there was no assurance that needy refugees actually received their food allotments.”1631 The fair distribution of aid is often a particular problem for refugee women and children.1632 In some camps where food supplies are limited, women and children have been inadequately fed because cultural norms dictate that they should not eat until men have had all they wish to eat.1633 Even more egregiously, some Bhutanese refugee women in Nepal were unable to secure access to food and other aid because Nepal’s system of registration required all rations to be distributed through male heads of household. In the result, women in

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to encourage the buying of maize from local farmers during the harvest period”: Namibian Economist, Aug. 1, 2003. J. Rowlatt, “Rohingya Crisis: Why Aid is Slow to Reach Refugees,” BBC, Sept. 14, 2017. “Pressing food shortages are looming at Kakuma camp in Northern Kenya . . . The medical coordinator claims that many children will die if food is not rushed to the camp. It seems that the authorities have known about the looming shortage for a long time but they took no measures to prevent it”: (2000) 76 JRS Dispatches (Aug. 31, 2000). “Looting and diversion of food continued to be a problem in several SPLA zones. Action Against Hunger, a French non-governmental agency, claimed that it was expelled by the SPLA because it was about to investigate why a high rate of malnutrition existed in Labone despite adequate supplies of relief food for the civilian population. It was suspected that the SPLA deliberately kept some children in a thin and sickly state to justify continued high levels of relief food the SPLA could divert”: Human Rights Watch, World Report 1998 (1998), at 76. US, “Living Conditions,” at 11. “Access to food may be problematic for refugee women. International organizations and host countries generally make decisions about food distribution. They may or may not consult with refugees. Even where there is consultation, the aid agencies often confer with refugee leaders, who may exclude women from membership in key organizations. Male refugees may have very limited knowledge about the issues and needs of refugee women and their children. For example, they may not know that certain foods that are distributed cannot be readily prepared in the camp setting:” S. Martin, “Refugee Women,” in D. Elliott and U. Segal, eds., Refugees Worldwide: A Global Perspective 207 (2012), at 219. Forbes Martin, Refugee Women, at 35. See also G. Camus-Jacques, “Refugee Women: The Forgotten Majority,” in G. Loescher and L. Monahan eds., Refugees and International Relations (1990) (Camus-Jacques, “Forgotten Majority”), at 148: “This [type of discriminatory practice] vividly demonstrates how refugee policies for the administration of material assistance are insufficient when such biased practices against women are allowed to develop and persist.” See also UNHCR, “Note on Refugee Women and International Protection,” UN Doc. EC/SCP/59, Aug. 28, 1990, at [30].

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abusive relationships “must stay in violent relationships, leave their relationships (and thus relinquish their full share of aid packages), or marry another man, in which case they lose legal custody of their children.”1634 For all these reasons, inadequate access to food is the leading cause of death among refugees.1635 As UNHCR has observed, “[m]alnutrition is both a primary and secondary cause of death. There is a direct causal relationship between malnutrition and mortality in refugee sites, and this is most pronounced among children under five years of age.”1636 Sadly, the death rate for Somalis fleeing civil war actually peaked a year after reaching the “safety” of the Hartisheik camp in Ethiopia. Because of inadequate food, 46 out of every 1,000 adults died, with the death rate for children reaching a staggering 150 per 1,000.1637 Similarly, Somali refugees fleeing to Kenya in 2011 experienced mortality rates of 7.4 per 10,000, more than fifteen times the sub-Saharan baseline rate.1638 More than one million refugees in the Horn of Africa, Ethiopia, and Nigeria were at risk in 2017 because of the combination of drought and a long-standing shortfall in funding of aid agencies.1639 Afghan refugees in Pakistan were “faced with a no-win situation . . . They can either move to the camps nearer the border with Afghanistan, where their security cannot be guaranteed, or they can stay in Peshawar, where their food supply and winter shelter cannot be guaranteed.”1640 Conditions may even be so bad that refugees return home to face the risk of being persecuted rather than starve in an asylum country. Starvation-induced repatriation was documented, for example, in the case of Uzbek refugees who had been forced to sort through insect-infested grains in Kyrgyzstan in order to survive.1641 1634 1635 1636

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Human Rights Watch, “Nepal/Bhutan: Refugee Women Face Abuses,” Sept. 24, 2003. Forbes Martin, Refugee Women, at 33. UNHCR Executive Committee, “Refugee Health,” UN Doc. EC/1995/SC.2/CRP.29, Sept. 11, 1995. Keen, Right to Life, at 7–8. UNHCR, “Somali Refugee Death Rate at 15 Times Norm,” Yahoo! News, July 19, 2011. “Children account for the majority of refugees (62 per cent, for instance, in the case of refugees fleeing South Sudan) and in common with other refugees nearly all are dependent on food assistance via our sister-agency WFP. With no money to buy food, rations however are being cut. In Djibouti rations have been cut by 12 per cent, in Ethiopia, Tanzania, and Rwanda by between 20 and 50 per cent, and in Uganda by up to 75 per cent. Many refugees are without full access to livelihoods and agriculture or food production and their ability to take matters into their own hands and help themselves is limited”: UNHCR, “UNHCR says Death Risk from Starvation in Horn of Africa, Yemen, Nigeria Growing, Displacement already Rising,” Apr. 11, 2017. Human Rights Watch, “Pakistan: Refugees Not Moving Voluntarily,” Dec. 5, 2001. Following the arrival of more than 500 Uzbek citizens fleeing their homes in Andijan, the Kyrgyz governor of the hosting province reportedly stated, “It is in our tradition to treat strangers as guests for only the first three days, but no more. These people should live in their own country”: Human Rights Watch, “Kyrgyzstan: Say No to Return of Uzbek Refugees,” May 26, 2005. During a visit to the camp, Human Rights Watch “found harsh conditions and infrastructure that was insufficient to meet people’s needs. For instance,

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Even where inadequate food rations do not lead directly to death or forced return, they may cause serious illness. Rations for some Somali refugees in Ethiopia included no vegetables and little iron, resulting in high anemia rates among women and children,1642 while refugees from the Democratic Republic of Congo were refused any fish or meat at the Dukwe refugee camp in Botswana.1643 Potentially fatal diseases long eradicated in the North, such as scurvy, xerophthalmia, anemia, and beriberi, have made comebacks in the refugee camps of the South because of acute vitamin deficiencies.1644 For example, a shortage of niacin in food baskets led to an outbreak of pellagra among Mozambican refugees in Malawi.1645 Emergency-level malnutrition also accompanied cholera, measles, meningitis, and polio in children under the age of five in Kenya’s Dadaab and Kakuma camps.1646 In other situations, the only food provided may be culturally foreign or simply bad. For Congolese refugees fleeing to Cameroon, for instance, the unavailability of food aid until

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there were only 10 tents available to shelter more than 500 Uzbek refugees, as well as insufficient supplies of food and water. Staff watched the camp residents picking through grain infested with insects in order to gather some edible food”: ibid. “A number of issues of concern related to food security were identified by UNHCR and WFP in the refugee camps in Ethiopia. First, the refugee diet is both monotonous and does not meet the full micronutrient needs of the population. Almost 90 per cent of the refugees have been living in Ethiopia for more than 15 years, and these protracted refugees depend fully on food aid, which means they have been receiving the same kind of food commodities all this time: cereals (wheat and/or maize), vegetable oil, salt and sugar (together amounting to 1750 to 2100 kcal/day/person). Second, the dietary diversity is very poor, due to lack of affordable fresh foods (which are also scarce in the region). UNHCR is not able to provide fresh vegetables in many refugee camps, while the hosting government’s current land policy does not allow the refugees to cultivate crops themselves outside the camps. Third, it was found that children and pregnant women are especially vulnerable. Anaemia rates among children and women of childbearing age are high. Although these rates were reduced from 35–67 per cent in 2007 to 34–38 per cent in 2008, they are still too high and a public health concern”: M. Tsadik, “Enhancing Household Food Security in Refugee Camps in Ethiopia,” Urban Agriculture, Jan. 2009, at 16. It is reported that the UNHCR regional representative viewed the refugees’ request as “unreasonable . . . If we are looking at the kilo-calories content of the food, it is in accordance with international standards”: Namibian, Feb. 7, 2001, quoting Mangesha Kebede of the UNHCR’s Regional Office in Pretoria. Keen, Right to Life, at 17–19; United States, “Outbreak of Beriberi Among Illegal Mainland Chinese Immigrants at a Detention Center in Taiwan,” (2003) 118 Public Health Reports 59. US, “Living Conditions,” at 41–42. See also Centers for Disease Control, “International Notes: Outbreak of Pellagra Among Mozambican Refugees – Malawi, 1990,” (1991) 40 (13) Morbidity and Mortality Weekly Report 209. Further exacerbating the situation was the shortage of firewood and other non-food essentials: “‘If refugees don’t get firewood, or soap, they have to sell their general food rations to buy it,’ said [World Food Program] deputy country director Marian Read. ‘When there isn’t enough to go around, it’s the children and women who suffer most’”: “Agencies Seek Help to Stem Malnutrition in Refugee Camps,” IRIN News, Feb. 23, 2016.

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late 2007 meant that refugees relied almost exclusively on cassava – a cheap staple food that, when insufficiently processed and combined with a proteindeficient diet, can result in permanent paralysis of the lower limbs, hearing and sight problems, and even death.1647 Access to clean drinking water is also a frequent concern for refugees.1648 Refugees given responsibility to collect water (typically women) are often vulnerable to sleeping sickness, malaria, yellow fever, and river blindness.1649 While UNHCR guidelines recommend 15–20 liters of water per day for each person, refugees in one camp in western Ethiopia were reported to receive less than 1 liter of water.1650 At the Maheba camp in Zambia, the death rate among Angolan refugees tripled in less than three months because the camp had only one functioning borehole, rather than the twenty required for its population.1651 A lack of toilets or latrines can also lead to the contamination of water sources. For example, Rohingya refugees in a makeshift Bangladeshi camp were forced to drink and bathe from a river littered with human feces.1652 And the mixing of milk powder with unclean water can cause severe diarrhea and even death among infants and young children.1653 1647

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Known as “konzo,” the disease affected primarily women and children refugees: “The high numbers of new konzo cases, together with the high mortality rate in the general population, both show the very precarious situation [of] refugees during this period. General food distribution became only available in August 2007. Until then most of the patients reported a diet consisting almost exclusively of cassava. Most of the refugees were pastoralists who had lost their cattle in CAR [Central African Republic]. They were relying on cassava from the local community and it is likely that the preparation of cassava had changed while demand increased”: I. Ciglenečki et al., “Konzo Outbreak Among Refugees from Central African Republic in Eastern Region, Cameroon,” 49 (2011) Food and Chemical Toxicology 579, at 581. See also “CAR Refugees in Cameroon Diseased, Malnourished, Lack Water,” IRIN News, Dec. 3, 2007. Access to clean water may indeed be the single most important means of saving refugee lives: Keen, Right to Life, at 21. Keen reports that when clean water was provided to refugees in eastern Sudan, “there was a 1% death rate among those who contracted cholera in refugee camps, whereas in nearby Sudanese villages the proportion reached 20%. Non-governmental organizations realized what was happening and began to give assistance to Sudanese health centres, though this effort was impeded by lack of resources”: ibid. Forbes Martin, Refugee Women, at 38. US, “Living Conditions,” at 12. The same problem occurred, though to a less drastic extent, at the Nyarugusu camp in Tanzania, where a camp designed for 50,000 persons was in fact used by more than 120,000 refugees, resulting in access to no more than 3 liters of water per day per person: A. Rowan, “Improving Access to Water for Refugees in Tanzania,” July 9, 2015. (2000) 82 JRS Dispatches (Nov. 10, 2000). J. Bennett, “Rohingya Face Hunger and Disease in Bangladesh Refugee Camp after Escaping Myanmar Violence,” Australia Broadcasting Corporation, Sept. 24, 2017. “Formula use in refugee camps is dangerous because when the supply is unstable women will dilute the milk – they add water to it and the babies don’t get enough nutrients. Often the powdered milk, which is not sterile, can’t be heated properly. Just as you don’t eat raw

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Beyond food and water, refugee survival usually depends on access to adequate shelter. Although shelter is a crucial determinant of refugee health,1654 particularly in extreme climatic conditions, it is frequently treated as an afterthought to other necessities of life. For example, more than 60,000 Kosovar refugees arriving in northern Albania were forced to sleep outside in what UNHCR described as “unsanitary, open-air . . . massive sick bays.”1655 When Iraqi Kurds arriving at the Jordanian border were not allowed by officials to cross, they were forced to dig holes covered with plastic sheets to protect themselves from the rain and cold.1656 And while Bangladeshi authorities did construct a camp for Rohingya refugees, their decision to do so in an area frequented by elephant herds led to the trampling of tents on multiple occasions.1657 At times, persons seeking protection find themselves denied shelter because of delays in refugee status assessments, as was the case for refugees from the Central African Republic arriving in Chad who were denied camp access while their registration was pending and thus left to survive by squatting in a forest.1658 In

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chicken, you can’t drink formula without using boiling water. The formula is often out of date – I have seen some that is two years past its ‘use by’ date, or volunteers put it in bags to hand out so there is no clue of how old it is”: B. Bauer, “Breastfeeding: How One Group Fought the Spread of Formula Milk in Refugee Camps,” Guardian, Nov. 30, 2016. Insufficient or contaminated water sources exacerbate the problem: “Insufficient water means that containers and utensils used for mixing milk are often dirty, thus making secondary contamination highly probable . . . The immune system of a child below two years of age is not yet fully developed and consequently, is less able to resist the effects of high bacterial food contamination. Acute diarrhoea and dehydration are the inevitable results of ingesting contaminated milk, contributing to malnutrition, and increased morbidity and mortality”: UNHCR, “UNHCR Policy related to the Acceptable Distribution and Use of Milk Products in Refugee Settings” (2006), at 5. J. Rivers and G. Brown, “Physiological Aspects of Shelter Deprivation,” in I. Davis ed., Disasters and the Small Dwelling 11 (1981). “The deep, chest-heaving cough can be heard all throughout the night . . . [A]s the flow of refugees has slowed, medical personnel have turned their attention from life-threatening trauma to the respiratory and gastrointestinal ailments”: UNHCR, Refugees Daily, May 6, 1999. “Refugees Insist on Staying Put at Border Crossing,” IRIN News, Mar. 20, 2006. “Wild Elephants Attack Rohingya Camp, Killing 4 in Bangladesh,” Chicago Tribune, Oct. 15, 2017. “Life for the squatters is hard, even by local standards, in a region where few can afford even the basics, and low prices for cotton, the region’s main crop, has devastated incomes this year. As the rainy season sets in, the refugees’ only shelters are flimsy huts they have hastily built out of dry leaves, rubbish and debris found in the forest. And many of the youngest are barely surviving on the occasional handouts from villagers, gifts from passing Central African traders, and plants they find to eat in the forest. A total 63 children from around Bekoningka and two other crossing points for CAR refugees have been diagnosed with malnutrition in the last three weeks, according to health workers”: “Would-Be Refugees Going Hungry in Forest,” IRIN News, May 29, 2006. According to UNHCR, the problem is “purely administrative”: “The local authorities at Bekoningka

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other instances, persons afforded protection are later forced from their homes with little notice or justification. Several hundred Syrians in the Lebanese town of Miziara, for example, were evicted following a woman’s suspected murder by a Syrian refugee.1659 Colombian refugees in Venezuela were similarly forced to flee their homes when President Maduro called for their removal; their only warning came in the form of a large “D” painted on homes marked for “demolition.”1660 Even when refugees receive housing, overcrowding is a frequent problem. Central American refugees in Mexico’s Siglo XXI detention center faced the specter of up to fifteen people being housed in a single unit.1661 Syrians at Iraq’s Domiz camp were forced to share tents with newly arriving refugees, as “almost 3,500 families do not have their own shelters.”1662 Refugee housing also frequently lacks adequate sanitation. Conditions across the Greek islands have been severe: refugees in tent cities struggled with sewage overflows and wild snakes in bathrooms, while those in abandoned warehouses reported nitrate-contaminated water.1663 South Sudanese refugees in Uganda reportedly chose “open defecation” over the long lines and distances to the few communal lavatories available to them.1664 The overcrowding and lack of sanitation in the Italian reception facilities in Pozzallo were so bad that the volunteer doctors working there suspended their service in protest over the conditions.1665

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must send a note to the regional prefect at Gore, 40 kilometres away. A Chadian government organisation – CENU – must then accompany UNHCR to assess the number of refugees. An unwieldy process that could take weeks in itself, after which the refugees will still have to wait through another month of interviews to weed out Chadians, soldiers, and other non-refugees, according to UNHCR staff. The squatters in Bekoningka are oblivious to the bureaucratic nuances of their status”: ibid. “Woman’s Murder Prompts Mass Eviction of Syrians from Lebanese Town,” Reuters, Oct. 5, 2017. G. Gupta, “Distraught Colombians Flee Venezuela as Border Dispute Intensifies,” Reuters, Aug. 26, 2015; W. Neuman, “Colombians Flee Venezuela’s Crackdown on Immigrants,” Aug. 27, 2015. L. Weiss, “Central American Refugees Struggle for Protection in Southern Mexico,” North American Congress on Latin America, Sept. 19, 2016. “The crowding is in turn having an impact on sanitation, which is already below humanitarian standards. Congestion and warmer temperatures are increasing vulnerability to outbreaks of diseases as well as to tension between camp residents. The number of children below 5 years of age suffering from diarrhoea in the camp has doubled in recent weeks: Since February, on average nine children out of every hundred suffer from diarrhoea per week. Additionally, there have been 62 cases of Hepatitis A since the beginning of [2013]”: UNHCR, “UNHCR Appealing for More Space and Support for Syrian Refugees in Iraq,” Apr. 2, 2013. R. Banning-Lover, “Greek Refugee Camps Remain Dangerous and Inadequate, say Aid Workers,” Guardian, Feb. 10, 2017. Lutheran World Federation, “Combating Open Defecation in Palorinya Settlement,” Oct. 31, 2017. Médecins Sans Frontières, “Italy: MSF Ends Activities in Pozzallo Reception Centre,” Dec. 30, 2015; see also Statewatch, “Briefing: Italy: MSF Report on Reception Conditions in Pozzallo” (2015).

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In general, the minority of refugees that seek asylum in the developed world are much less likely to be denied access to the basic necessities of life. Some countries, including Canada,1666 Greece, Norway, Portugal, and Sweden,1667 allow refugees subject to status verification to engage in wage-earning employment. Other European countries either deny asylum-seekers the right to seek employment altogether or do so for a period of time.1668 For example, refugees undergoing status verification in Ireland may not work at all,1669 while Germany bars them from accessing employment for the duration of their stay in a reception center.1670 Switzerland allows refugees to work after a three-month waiting period;1671 in Spain, the waiting period is six months.1672 The Netherlands generally allows refugee claimants to work, though the duration of the work permit is a maximum of twenty-four weeks per annum.1673 And while US law permits applicants to work 180 days after filing, 1666

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V. Stevenson, “What Refugee Claimants Receive from the Government,” CBC News, Aug. 18, 2017. European Commission Policy Observatory (EEPO), “Challenges in the Labour Market Integration of Asylum Seekers and Refugees,” May 2016 (EEPO, “Challenges in Labour Market Integration”), at 7. Members of the European Union are obliged to “ensure that applicants have access to the labour market no later than 9 months from the date when the application for international protection was lodged if a first instance decision by the competent authority has not been taken and the delay cannot be attributed to the applicant”: Council Directive laying down standards for the reception of applicants for international protection (recast), Doc. 2013/33/EU (June 26, 2013) (EU Reception Conditions Directive (recast)), at Art. 15(1). EEPO, “Challenges in Labour Market Integration,” at 7. Beginning in October 2015, new regulations barred refugees from accessing the labor market for the duration of their stay in an initial reception center, the maximum period of which is six months: AIDA, “Country Report: Germany 2018” (2019), at 82, www .asylumineurope.org/reports/country/germany, accessed Feb. 10, 2020. As of August 2019, the period of mandatory stay in a reception center was increased to eighteen months, and exclusion from the labor market increased to nine months: Mixed Migration Centre, “Germany’s New Migration and Asylum Legislation: Extraordinary Opening, Shrinking Protection Space, or Both?,” Aug. 20, 2019. “According to national legislation, asylum seekers cannot engage in any gainful employment during the first 3 months after filing an application for asylum. The canton of attribution may extend this restriction for a further 3 months if the asylum application is rejected at the first instance within the first 3-month period”: AIDA, “Country Report: Switzerland 2018” (2019), at 80, www.asylumineurope.org/reports/country/switzerland, accessed Feb. 10, 2020. “Asylum seekers are legally entitled to start working 6 months after their application for asylum is officially accepted, while their application is being examined”: AIDA, “Country Report: Spain 2018” (2019), at 62, www.asylumineurope.org/reports/country/spain, accessed Feb. 10, 2020. “Despite having the right to work, asylum seekers can only work limited time, namely a maximum of 24 weeks each 12 months”: AIDA, “Country Report: Netherlands 2018” (2019), at 66, www.asylumineurope.org/reports/country/netherlands, accessed Feb. 10, 2020.

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the practice of “stopping the clock” for court delays has led to an inability to work for months or even years.1674 In most cases, refugees allowed to work in industrialized countries can meet basic needs from their own income. This is less likely to be the case, however, in states that impose bureaucratic obstacles to receipt of a work permit, or where the administrative burden lies with potential employers.1675 In Malta, for example, employers who must apply for short-term licenses on behalf of refugee claimants are in practice deterred from hiring them.1676 Many refugees also face language difficulties, educational differences, certification requirements, cultural barriers, and xenophobic or racist barriers to work.1677 Thus, even in asylum countries in which refugees are in principle entitled to work, they may be either channeled into low-paying, insecure jobs, or simply unable to find work at all. Refugees in the developed world who are either prevented from working or who cannot find work must therefore turn to public or private assistance to meet their basic needs. Many countries in Western Europe have established specialized reception centers to accommodate asylum-seekers which provide residents with not only shelter, but also food or cooking facilities, as well as onsite medical assistance. Some states such as Germany and Ireland have traditionally met the needs of refugees only by way of a mandatory stay in a reception center.1678 Bulgaria has more recently adopted this policy: though 1674

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Human Rights Watch, “At Least Let them Work: The Denial of Work Authorization and Assistance for Asylum Seekers in the United States,” Nov. 2013, at 17–26. Government data acquired in 2012 showed that “between 2007 and May 2011 there were 285,101 pending cases before the immigration courts. Of those pending cases, 262,025, or 91.9%, had stopped clocks at some point during the case”: ibid. at 18. Further delays are now occurring by reason of the policy to schedule asylum interviews for recent asylum applicants in priority to those whose applications have been pending for some time: US Citizenship and Immigration Services, “Affirmative Asylum Interview Scheduling,” Jan. 26, 2018. See e.g. OECD and UNHCR, “Migration Policy Debates No. 10: Hiring Refugees – What are the Opportunities and Challenges for Employers?,” Sept. 2016 (OECD and UNHCR, “Hiring Refugees”), at 3–4. EEPO, “Challenges in Labour Market Integration,” at 8. See e.g. OECD and UNHCR, “Hiring Refugees,” at 4–5. “Asylum seekers are entitled to reception conditions as defined in the Asylum Seekers’ Benefits Act (Asylbewerberleistungsgesetz) from the moment they arrive at the reception centre to which they have been assigned and where they are issued an “arrival certificate” (Ankunftsnachweis). They remain entitled to these reception conditions as long as they have the status of an asylum seeker and are entitled to a permission to stay (Aufenthaltsgestattung) . . . As a rule, asylum seekers are required to stay in the initial reception centre hosting the BAMF branch office where they lodge their application for a period up to 6 weeks but not exceeding 6 months”: AIDA, “Country Report: Germany 2018” (2019), at 67, 73, www.asylumineurope.org/reports/country/germany, accessed Feb. 10, 2020. In Ireland, “[a]sylum seekers are not obliged to use RIA accommodation and may source their own accommodation or stay with relatives or friends. However, to

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refugee claimants may reside outside the centers, they must first waive the right to accommodation and to the monthly social allowance.1679 Conversely, individuals in other countries may face barriers in accessing reception centers. In Belgium, for example, nationality-based preferences in practice led to the accommodation of Syrian refugees at the expense of their Afghan and Iraqi counterparts.1680 Alternatively, refugees awaiting status verification may be granted access to social assistance schemes that provide them with the funds needed to meet their own basic needs. Refugee claimants in most EU member states may access social welfare, but have the usual social benefit amount reduced to account for the value of accommodation provided in reception centers.1681 The United Kingdom provides asylum applicants with just over 50 percent of the income support paid to citizens.1682 Until 2004, Britain also barred refugees from receiving public assistance unless they made their claim to be a refugee

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do so means that the individual is not entitled to material reception conditions or State social welfare supports, e.g. medical card, rent allowance, etc.”: AIDA, “Country Report: Ireland 2018” (2019), at 53, www.asylumineurope.org/reports/country/republic-ireland, accessed Feb. 10, 2020. While refugee claimants may in principle reside outside the centers, the requirement to waive a formal right to accommodation and other forms of social assistance in practice leaves them with few options: AIDA, “Country Report: Bulgaria 2018” (2019), at 45, www.asylumineurope.org/reports/country/bulgaria, accessed Feb. 10, 2020. “In Belgium, collective accommodation – which is generally applied during the first stages of reception of an asylum seeker before he or she is transferred to individual structures – does not apply to those with a high chance of receiving protection status, i.e. Syrians, since the summer of 2015. Conversely, Iraqi and Afghan nationals were not able to quickly secure accommodation due to the authorities’ deterrence tactics, involving written communications discouraging potential applicants from entering the procedure, and delays of more than two weeks in registering them. This has led to at least one judgment by the Labour Court, condemning Fedasil, the Belgian reception agency, to provide accommodation to an Afghan asylum seeker”: European Council on Refugees and Exiles, “Wrong Counts and Closing Doors: The Reception Refugees and Asylum Seekers in Europe,” Mar. 2016, at 40. E. Poptcheva et al., “Work and Social Welfare for Asylum-Seekers and Refugees: Selected EU Member States”, Dec. 2015 (Poptcheva, “Work and Social Welfare”), at 13–14 (France), 16 (Germany), 24 (Poland), 26–27 (Spain), 28 (Sweden). Even with such a seemingly flexible standard, however, the allowances provided have often been insufficient. For persons without accommodation in France, for example, only an additional €4.20 was added to the base amount of €6.80 to account for housing, an amount the French Council of State found to be “manifestly insufficient” under the recast Reception Conditions Directive: Asylum Information Database, “France: Allowance Insufficient for Asylum Seekers without Accommodation,” Jan. 2, 2017. Similar concerns have been raised with regard to practices in Poland: Poptcheva, “Work and Social Welfare”, Dec. 2015, at 24–25. “Basic Needs Unmet for UK Asylum-Seekers,” IRIN News, Oct. 1, 2014. Following an increase of just 33 pence between 2011 and 2015 (British Refugee Council, “Asylum Support,” Feb. 2017, at 1, 4), the payment was increased another 88 pence in 2018 to £37.75 per person each week. These payments are expected to cover the cost of food, clothing, and toiletries: A. Travis, “Destitute UK Asylum Seekers get 80p Rise in Subsistence Payments,” Guardian, Jan. 15, 2018.

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forthwith upon arrival in the United Kingdom,1683 depriving many refugee claimants of income supplements, housing benefits, and disability allowances.1684 Combined with Britain’s twelve-month ban on the employment of persons seeking recognition of refugee status, the limited income support available to claimants translated into an extraordinarily difficult position.1685 Generalized shortages of affordable housing in Western Europe have led to congestion in refugee reception centers.1686 Thus, the Committee on Economic, Social and Cultural Rights noted its concern with regard to Italy about “the insufficient number of reception centres . . . and the substandard conditions therein”1687 – meaning that homelessness among refugees is a not uncommon phenomenon.1688 Those refugees not admitted to centers often 1683

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These changes were brought in by the Social Security (Persons from Abroad) Miscellaneous Amendment Regulations 1996 (Feb. 5, 1996), and were incorporated in the Asylum and Immigration Act on July 24, 1996. They are, in essence, a penalty on account of illegal entry or presence: see Chapter 4.2.2. This approach appears to have been the model for the European Union’s Council Directive laying down minimum standards for the reception of asylum-seekers, Doc. 2003/9/EC (Jan. 27, 2003) (EU Reception Directive), at Art. 16(2) (now Art. 20(2) of Directive 2013/33/EU), which authorized states to “refuse [reception] conditions” where a claim is not made as soon as reasonably practicable after arrival: Immigration Law Practitioners’ Association, [June 2004] European Update 10. It was estimated that about 65 percent of refugees did not apply for recognition of refugee status to an immigration officer immediately upon arrival: A. Travis, “Thousands of Asylum-Seekers Face ‘Destitution,’” Guardian, Dec. 27, 2002, at 1. More recently, the government has applied s. 55 of the Nationality, Immigration and Asylum Act 2002 more flexibly to account for persons claiming refugee status within three days of arrival in the United Kingdom: UK Visas & Immigration, “Section 55 Guidance,” at 6–8, www.gov.uk/ government/uploads/system/uploads/attachment_data/file/431346/Section_55_v12.pdf, accessed Feb. 10, 2020. The United Kingdom previously allowed refugees who had not received an adjudication of their claim within six months to secure work authorization at that time; that policy was rescinded in July 2002. At present, permission to work is granted only twelve months after filing their claim: EEPO, “Challenges in Labour Market Integration,” at 5–6. See e.g. K. Connolly, “Damning Report Exposes Europe’s Escalating Housing Crisis,” Guardian, Nov. 19, 2015. As one commenter put it, “[w]e don’t have a refugee crisis, we have a housing crisis”: J. Dullroy, “Housing for Refugees takes Center Stage at Venice Architecture Biennale,” Reuters, May 31, 2016, quoting Director of the Deutsches Architekturmuseum Peter Cachola Schmal. Committee on Economic, Social and Cultural Rights, “Concluding Observations on the Fifth Periodic Report of Italy,” UN Doc. E/C.12/ITA/CO/5 (2015), at [18]. Nor are the problems limited to reception centers. Chronic housing shortages have led refugees to seek shelter in abandoned buildings and warehouses, sometimes for years, as they wait for public housing to become available. Refugees recently evicted from one such shelter in Rome later congregated in the gardens by Piazza Venezia, only to face dispersal at the hands of riot police armed with water cannons: E. Povoledo, “In Rome, Violent Eviction of Migrants ‘Touched a Nerve,’” New York Times, Sept. 4, 2017. See e.g. European Council on Refugees and Exiles, “Wrong Counts and Closing Doors: The Reception Refugees and Asylum Seekers in Europe,” Mar. 2016, at 32–34.

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end up in boarding houses, or sharing dwellings with strangers. In France, for example, chronic shortages in accommodation have forced refugees awaiting the outcomes of their claims to sleep on the streets, sometimes in frigid conditions.1689 And refugees sleeping on the streets or in abandoned buildings during January 2017 faced temperatures well below freezing, leading to several deaths across Europe.1690 Under the British government’s controversial dispersal policy, asylum-seekers have been given free access to public housing. But the assigned destinations are often arbitrarily selected,1691 remote from critical services,1692 of a poor standard,1693 and sometimes in neighborhoods where 1689

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“France has built new processing centers and accelerated asylum decisions, but the authorities have not kept pace with the steady stream of new arrivals, and emergency housing for migrants is limited. There are only 400 beds available for single men in Paris, and each man is limited to 10 nights . . . But even those who get a place risk losing it over minor infractions. Information in migrants’ native languages is scarce, and the rules at asylum hostels – like curfews and visiting policies – change constantly”: E. Brown, “On Paris’s Icy Streets, Migrants Wait for Word on Refuge,” New York Times, Jan. 21, 2018. L. Dearden and N. McIntyre, “Refugees Freezing to Death across Europe after ‘Continued Failure’ on Crisis Leaves Thousands at Risk,” Independent, Jan. 11, 2017. Rather than assisting those suffering to find shelter, police in Paris reportedly stole blankets to deter refugees from sleeping on the streets: L. Pasha-Robinson, “French Police ‘Stealing Blankets from Migrants,’ Charity warns,” Independent, Jan. 8, 2017. In Serbia, refugees taking shelter in abandoned warehouses, many of them children, resorted to burning toxic materials to keep warm: N. Slawson, “Thousands of Refugee Children Sleeping Rough in Sub-zero Serbia, says UN,” Guardian, Jan. 23, 2017. According to the chair of the Home Affairs Select Committee, “the problems stemmed from a change of policy in 2012 by the Conservatives, which saw the contracts for housing asylum seekers privatised and given to G4S, Serco and Clearsprings. She said these contracts, and the reduced money they were given to execute them, inevitably meant that companies sought to procure cheap housing in poor parts of the country”: K. Lyons and P. Duncan, “‘It’s a Shambles’: Data Shows Most Asylum Seekers put in Poorest Parts of Britain,” Guardian, Apr. 9, 2017. As a result, “more than half of all asylum seekers (57%) housed by the government are done so in the poorest third of the country. The richest third of the country houses 10% of all asylum seekers, basing calculations on the median income in each local authority for which income data is available”: ibid. Exacerbating the problem is the lack of additional funding available to the councils, which must continue to host those whose protection claims are ultimately approved: ibid. Persons placed in temporary accommodation “have little choice over what food is available, receive no financial support and can have difficulties accessing third sector and advocacy networks. We were told that Providers did not always fulfil obligations to provide transport to medical appointments, that many people in hotel accommodation have no idea how they can get to see a [general practitioner] and that they lack the HC2 certificates necessary to get free prescriptions, glasses or dental treatment”: House of Commons Home Affairs Committee, “Asylum Accommodation,” Twelfth report of session 2016–2017, Jan. 31, 2017, at [51]. In reaching its conclusion that “people are being placed in accommodation that is unfit for habitation” (ibid. at 26), the UK House of Commons Home Affairs Committee considered evidence of vermin and insect infestations; known asbestos risks, water leaks, and mold; rotten, broken, or missing furniture; and failing heating systems: ibid. at [59]–[71].

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there was a known risk to the physical security of refugees and other foreigners.1694 Those whose applications are ultimately approved are granted only a twenty-eight-day “grace period” to find accommodation and employment, and are restricted to the dispersal area to which they were originally assigned. The government also imposed a penalty under which those who fail to travel to their new residence within the allotted time are deemed to be “intentionally homeless.”1695 Economic, Social and Cultural Covenant, Art. 11 1. The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent. 2. The States Parties to the present Covenant . . . recogniz[e] the fundamental right of everyone to be free from hunger . . . Economic, Social and Cultural Covenant, Art. 2(1) Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical . . . with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means . . . 1694

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A. Travis, “Warning on Shifting Asylum Seekers to Dangerous Areas is Revealed,” Guardian, Mar. 15, 2007. “Once an individual gains refugee status, there are two regulations that impact on subsequent experiences of housing and integration. First, refugees have 28 days to vacate NASS accommodation, after which time they become homeless. Second, Section 11 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 implemented the ‘local connection’ rule, meaning that when an asylum seeker is granted refugee status and becomes homeless (e.g. in Cardiff), a housing application can be made only to the local authority of the original dispersal area and not elsewhere in the UK, such as Manchester or London. Along with dispersal policy, this legislation aims to reduce refugee onward movement”: E. Stewart and M. Shaffer, “Moving On? Dispersal Policy, Onward Migration and Integration of Refugees in the UK,” Dec. 2015, at 58–59. “As an example, the local connection rule requires an asylum seeker who is dispersed to Cardiff to apply for local authority housing only in Cardiff at the end of the 28 days after being granted refugee status. If the individual decides to migrate onwards to London or Manchester, they are regarded as being ‘intentionally homeless’ and cannot apply for local authority housing for the first six months because their ‘local connection’ is with Cardiff”: ibid. at 14. In addition to these challenges, the brevity of the twenty-eight-day period has itself sparked an increase in poverty and homelessness: K. Lyons, “‘Destitution is Routine’: Refugees Face Homelessness even after Gaining Asylum,” Guardian, Sept. 8, 2017.

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The most broadly framed guarantee of access to the necessities of life is Art. 11 of the Economic Covenant.1696 Its inclusive nature is both a source of strength and a challenge: As befits such a grave matter as the very subsistence of life, the capacity of Article 11 is wide and deep. But while this scope is both necessary and desirable, it undoubtedly presents a challenge to encapsulate in an instrument designed to bind parties by way of legal obligation.1697

Art. 11 establishes what is now understood to be an immediate obligation to alleviate hunger, as well as a duty progressively to implement the right to an adequate standard of living. Art. 12, addressed below,1698 focuses more specifically on the intimately related right to physical and mental healthcare.1699 As earlier noted,1700 the rights in the Economic Covenant, including those established by Arts. 11 and 12, explicitly inhere in “everyone.”1701 They are also 1696

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Interestingly, the High Court of Ireland found such an obligation to be implied by the right to seek asylum itself. “[T]he State accepts that it has a legal and moral responsibility to shelter and give material support to destitute protection applicants . . . [I]t seems that the legal obligation derives from the State’s primary legal obligation to facilitate applications for asylum . . . To refuse applicants shelter and food would prevent applications for protection from being made and this would violate Ireland’s international legal obligations”: CA v. Minister for Justice and Equality, [2014] IEHC 532 (Ir. HC, Nov. 14, 2014), at [9.4]. B. Saul et al., The International Covenant on Economic, Social and Cultural Rights: Commentary, Cases, and Materials (2014) (Saul, ICESCR Commentary), at 863. See Chapter 4.4.3. Art. 9, establishing the right of “everyone to social security,” has also been interpreted to require the provision of healthcare and family support: see UN Committee on Economic, Social and Cultural Rights, “General Comment No. 19: The Right to Social Security,” UN Doc. E/C.12/GC/19, Feb. 4, 2008. “In monitoring states, the [Committee] has highlighted the right of refugees in both developed and developing states and including asylum seekers awaiting a decision”: Saul, ICESCR Commentary, at 674. Art. 9 has been relied upon, for example, to insist that Albania “amend legislation on social welfare to ensure that asylum seekers . . . have access to comprehensive integration programmes and social assistance and services”: UN Committee on Economic, Social and Cultural Rights, “Concluding Observations: Albania,” UN Doc. E/C.12/ALB/CO/2–3, Dec. 18, 2013, at [14]. See generally Chapter 6.3. See Chapter 1.5.4 at note 401. For example, the Committee on Economic, Social and Cultural Rights has made clear that “[t]he right to adequate housing applies to everyone. While the reference to ‘himself and his family’ reflects assumptions as to gender roles and economic activity patterns commonly accepted in 1966 when the Covenant was adopted, the phrase cannot be read today as implying any limitations upon the applicability of the right to individuals or to femaleheaded households or other such groups”: UN Committee on Economic, Social and Cultural Rights, “General Comment No. 4: The Right to Adequate Housing” (1991), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [6]. See also UN Committee on Economic, Social and Cultural Rights, “General Comment No. 12: The Right to Adequate Food” (1999), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [1]: “The human right to adequate food is of crucial importance for the enjoyment of all rights. It applies to everyone; thus

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to be implemented without discrimination “of any kind as to . . . national or social origin . . . or other status.”1702 Refugees, whatever their formal status, must enjoy these rights without discrimination: All people under the jurisdiction of the State concerned enjoy Covenant rights. That includes asylum seekers and refugees, as well as other migrants, even when their situation in the country concerned is irregular . . . [P]rotection from discrimination cannot be made conditional upon an individual having a regular status in the host country.1703

In relation to the right to food, for example, the Committee on Economic, Social and Cultural Rights has stressed that “any discrimination in access to food, as well as to means and entitlements for its procurement, on the grounds of race, color, sex, language, age, religion, political or other opinion, national or social origin, property, birth or other status with the purpose or effect of nullifying or impairing the equal enjoyment or exercise of economic, social and cultural rights constitutes a violation of the

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the reference in article 11.1 to ‘himself and his family’ does not imply any limitation upon the applicability of this right to individuals or to female-headed households.” International Covenant on Economic, Social and Cultural Rights, 993 UNTS 3 (UNTS 14531), adopted Dec. 16, 1966, entered into force Jan. 3, 1976 (Economic, Social and Cultural Covenant), at Art. 2(2). One commentator has argued that the enumerated grounds on which discrimination is prohibited are exhaustive: A. Bayefsky, “The Principle of Equality or Non-Discrimination in International Law,” (1990) Human Rights Law Journal 1, at 5. The better position notes the clearly open-ended nature of the reference to “discrimination of any kind as to . . . other status,” and concludes that the list of prohibited grounds is illustrative: M. Craven, The International Covenant on Economic, Social and Cultural Rights: A Perspective on its Development (1995) (Craven, ICESCR Commentary), at 168. See also A. Chapman, “A ‘Violations Approach’ for Monitoring the International Covenant on Economic, Social and Cultural Rights,” (1996) 18 Human Rights Quarterly 23, at 54–55: “It is notable that in a world which offers few protections of ‘illegal immigrants,’ the [Economic, Social and Cultural Rights] Committee has disagreed with the interpretation of at least one government (the government of Hong Kong) that asylum-seekers are not entitled to enjoy . . . rights in view of their status as ‘illegal immigrants.’” UN Committee on Economic, Social and Cultural Rights, “Duties of States towards Refugees and Migrants under the International Covenant on Economic, Social and Cultural Rights,” UN Doc. E/C.12/2017/1, Mar. 13, 2017, at [3], [6]. Indeed, “a lack of available resoures cannot be considered as an objective and reasonable justification for difference in treatment ‘unless every effort has been made to use all resources that are at the State party’s disposition in an effort to address and eliminate the discrimination, as a matter of priority’”: ibid. at [5]. See also UN Committee on Economic, Social and Cultural Rights, “General Comment No. 20: Non-discrimination in Economic, Social and Cultural Rights” (2009), UN Doc. E/C.12/GC/20, July 2, 2009, at [30] (“The Covenant rights apply to everyone including non-nationals, such as refugees [and] asylum seekers”); and UN Committee on Economic, Social and Cultural Rights, “General Comment No. 15: The Right to Water” (2002), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [16], noting the duty to meet the needs of refugees for water on terms of equality with those of citizens.

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Covenant.”1704 Similarly, “[t]he right to adequate housing applies to everyone.”1705 Because of their discriminatory character, the decision of the United Kingdom to provide refugees with less than the domestic standard of what is needed to meet basic needs1706 as well as Belgium’s nationalitybased discrimination in access to accommodation1707 are in breach of their duties under the Economic Covenant. Similarly, because retrogression is presumptively in breach of the duty progressively to implement rights,1708 Kenya1709 and Tanzania1710 may be held to account under this standard for the starvation-induced repatriation of refugees from their territory, as may countries such as Kyrgyzstan1711 in which refugees felt no option but to leave when they were given grossly inadequate access to food. Nor does a state meet its obligations under Art. 11 when an adequate standard of living is available only to refugees who renounce other rights. The Bulgarian,1712 German,1713 and Irish1714 policies of meeting basic needs only in the case of refugees who agree to stay in a reception center – despite their right to enjoy internal freedom of movement once identity is verified and a refugee claim duly lodged1715 – are examples of a policy that sets an unlawful barrier to realization of Art. 11 duties. On the other hand, because duties under the Economic Covenant are not framed as obligations of result but rather as setting a duty of progressive implementation,1716 there would be no breach of the Economic Covenant if real logistical impossibility precluded the delivery of food and other essentials

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UN Committee on Economic, Social and Cultural Rights, “General Comment No. 12: The Right to Adequate Food” (1999), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [18]. See also UN Committee on Economic, Social and Cultural Rights, “General Comment No. 14: The Right to the Highest Attainable Standard of Health” (2000), UN Doc. HRI/ GEN/1/Rev.7, May 12, 2004, at [18]: “By virtue of article 2.2 and article 3, the Covenant proscribes any discrimination in access to health care and underlying determinants of health, as well as to means and entitlements for their procurement, on the grounds of race, color, sex, language, religion, political or other opinion, national or social origin, property, birth, physical or mental disability, health status (including HIV/AIDS), sexual orientation and civil, political, social or other status, which has the intention or effect of nullifying or impairing the equal enjoyment or exercise of the right to health.” UN Committee on Economic, Social and Cultural Rights, “General Comment No. 4: The Right to Adequate Housing” (1991), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [6]. See text at note 1682. 1707 See text at note 1680. See Chapter 1.5.4 at note 408. See text at note 1622. While the existence of a UNHCR offer of cash aid “voluntarily” to repatriate in such circumstances was arguably a necessary condition, it remains that Kenya had jurisdiction over the refugees and therefore liability under the Refugee Convention. See text at notes 1620–1621. 1711 See text at note 1641. 1712 See text at note 1679. See text at note 1678. 1714 See text at note 1678. 1715 See Chapter 4.2.4. See Chapter 1.5.4 at note 405 ff.

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to refugees in remote parts of Honduras during the rainy season1717 or via overly traveled narrow roads in Bangladesh.1718 Yet despite its fungibility, the duty of progressive implementation is subject to the presumptive duty always to ensure the “core content” of every Covenant right.1719 The Committee has specifically insisted on this duty in relation to the right to shelter1720 and, most emphatically, the right to food: In determining which actions or omissions amount to a violation of the right to food, it is important to distinguish the inability from the unwillingness of a State party to comply. Should a State party argue that resource constraints make it impossible to provide access to food for those who are unable by themselves to secure such access, the State has to demonstrate that every effort has been made to use all the resources at its disposal in an effort to satisfy, as a matter of priority, those minimum obligations. This follows from article 2.1 of the Covenant, which obliges a State party to take the necessary steps to the maximum of its available resources, as previously pointed out by the Committee in its General Comment No. 3, paragraph 10. A State claiming that it is unable to carry out its obligation for reasons beyond its control therefore has the burden of proving that this is the case and that it has unsuccessfully sought to obtain international support to ensure the availability and accessibility of the necessary food [emphasis added].1721

The notion of core content provides a solid foundation from which to argue that all states have a duty to provide refugees under their jurisdiction with the necessities of life, including at least access to basic food, water, clothing, shelter, and physical and mental healthcare. If necessary to meet these responsibilities, poorer host countries are moreover legally required to seek assistance from wealthier states.1722 Yet because there is no reciprocal duty to in fact provide the needed assistance,1723 1717 1719 1720

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See text at note 1623. 1718 See text at note 1624. See Chapter 1.5.4 at note 437 ff. “As recognized in the Global Strategy for Shelter and in other international analyses, many of the measures required to promote the right to housing would only require the abstention by the Government from certain practices and a commitment to facilitating ‘self-help’ by affected groups. To the extent that any such steps are considered to be beyond the maximum resources available to a State party, it is appropriate that a request be made as soon as possible for international cooperation in accordance with articles 11(1), 22 and 23 of the Covenant, and that the Committee be informed thereof”: UN Committee on Economic, Social and Cultural Rights, “General Comment No. 4: The Right to Adequate Housing” (1991), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [10]. UN Committee on Economic, Social and Cultural Rights, “General Comment No. 12: The Right to Adequate Food” (1999), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [17]. The Commission on Human Rights voted 52–1 to endorse the understanding of the right to food set out in General Comment No. 12 as authoritative: UN Commission on Human Rights Res. 2001/25, Apr. 20, 2001. See Chapter 1.5.4 at note 412. 1723 Ibid. at note 413 ff.

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wealthier countries were not bound to assist Namibia to provide for the 20,000 Angolan refugees it hosted in the Osire refugee camp,1724 to respond to the starvation of both refugees and nationals in South Sudan,1725 to fund the World Food Program’s essential aid to Syrian refugees in the Middle East,1726 or to reverse cuts to life-sustaining cereal rations to South Sudanese refugees in Uganda.1727 While the aid ultimately given by Sweden and the United States to provide for Angolan refugees in Namibia1728 was a commendable example of principled implementation of the Covenant, neither country would have breached the Economic Covenant had it failed to respond. The clearest duty on aid-giving states is to avoid discrimination in the provision of assistance.1729 In light of this duty the decisions of donor states to cut critical aid to Burundian refugees in Tanzania1730 and to Somali refugees in Kenya1731 in order to redirect funds to meet the needs of less desperate refugees from Kosovo arriving in European states1732 seem to fall afoul of the duty of non-discrimination. Yet even this minimal constraint may be undermined by the practice of the Human Rights Committee to afford states an exceedingly broad margin of appreciation before a given resource allocation is deemed to be unreasonable and hence potentially discriminatory.1733 To date, the Committee has given no indication that it would find a state in breach because of a politically inspired decision to shift aid resources from one group of refugees to another. In contrast to the possible risk for refugees arising from the fluid duty of progressive implementation under the Economic Covenant, the Covenant’s authorization for developing countries in some circumstances to withhold economic right from non-citizens1734 ought not to be an impediment for refugees to secure access to the necessities of life. The Committee on Economic, Social and Cultural Rights has made clear that “economic” rights are limited to those rights “that enable a person to earn a living or that relate to that process,”1735 meaning

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See text at note 1627. 1725 See text at note 1625. 1726 See text at note 1613. See text at note 1614. 1728 See text at note 1612. See Chapter 1.5.4 at note 416 ff. 1730 See text at notes 1615–1617. See text at notes 1618–1619. 1732 See text at note 1618. See Chapter 1.5.5 at note 469 ff. The Committee on Economic, Social and Cultural Rights has conceded that “[e]ach State Party is left with a certain margin of appreciation to decide what measures it should adopt to progressively realize the rights under the Covenant, provided such steps are deliberate, concrete and targeted as clearly as possible towards meeting the obligations recognized in the Covenant”: UN Committee on Economic, Social and Cultural Rights, “Duties of States towards Refugees and Migrants under the International Covenant on Economic, Social and Cultural Rights,” UN Doc. E/ C.12/2017/1, Mar. 13, 2017, at [5]. See Chapter 1.5.4 at note 432 ff. E. Dankwa, “Working Paper on Article 2(3) of the International Covenant on Economic, Social and Cultural Rights,” (1987) 9 Human Rights Quarterly 230, at 240. See also Saul, ICESCR Commentary, at 217.

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that even very poor states have a duty to enable refugees to secure the necessities of life under Arts. 11 and 12. Normally a state is considered to be in breach of its obligations under the Economic Covenant only where there is evidence that it has prevented access to a right, failed to stop private actions from denying access to a right,1736 or neglected to facilitate efforts by individuals to secure their rights.1737 In all of these cases, there is an underlying expectation of individual initiative which allows the state’s duty to be conceived as secondary. The assumption of states such as Canada,1738 Greece,1739 Norway,1740 Portugal,1741 and Sweden1742 that asylum-seekers will ordinarily meet their own needs by earning money through engagement in employment – which the government authorizes – is therefore precisely in line with the spirit of the Economic Covenant.1743 Conversely, the Dutch system, under which asylum-seekers may work for no more than twenty-four weeks each year,1744 is not oriented to meeting the Covenant’s expectation that individuals be allowed to do what they can to meet their own needs. As such, it – like the bars on employment imposed by Germany on refugees in reception centers,1745 by Ireland’s prohibition on refugees undergoing status verification engaging in work,1746 and the delays in access to employment set by Spain1747 and Switzerland1748 – would breach 1736 1737

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On this issue, see Saul, ICESCR Commentary, at 872. See e.g. UN Committee on Economic, Social and Cultural Rights, “General Comment No. 12: The Right to Adequate Food” (1999), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [15]: “The right to adequate food, like any other human right, imposes three types or levels of obligations on States parties: the obligations to respect, to protect and to fulfil. In turn, the obligation to fulfil incorporates both an obligation to facilitate and an obligation to provide. The obligation to respect existing access to adequate food requires States parties not to take any measures that result in preventing such access. The obligation to protect requires measures by the State to ensure that enterprises or individuals do not deprive individuals of their access to adequate food. The obligation to fulfil (facilitate) means the State must pro-actively engage in activities intended to strengthen people’s access to and utilization of resources and means to ensure their livelihood, including food security.” As Eide points out, “this is the most important aspect of the right to food and other survival rights: not the State as provider, but as protector. This is a function similar to the role of the State as protector in regard to civil and political rights: protecting the right to life, to freedom from slavery and servitude, from violence and maltreatment by third parties”: A. Eide, “Article 25,” in A. Eide et al. eds., The Universal Declaration of Human Rights: A Commentary 385 (1992) (Eide, “Article 25”), at 388. See text at note 1666. 1739 See text at note 1667. 1740 Ibid. 1741 Ibid. Ibid. “[A]ccess to education and to employment are important channels for integration within the host country and will reduce the dependence of refugees or migrants on public support or private charity”: UN Committee on Economic, Social and Cultural Rights, “Duties of States towards Refugees and Migrants under the International Covenant on Economic, Social and Cultural Rights,” UN Doc. E/C.12/2017/1, Mar. 13, 2017, at [6]. See text at note 1673. 1745 See text at note 1670. 1746 See text at note 1669. See text at note 1672. 1748 See text at note 1671.

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Art. 11 of the Covenant if refugee claimants are not provided with alternative means of support.1749 Nor may states lawfully impose bureaucratic hurdles that they know indirectly undermine the ability in practice to survive through work,1750 such as Malta’s insistence that potential employers of refugees secure licenses to hire them,1751 or the “stop the clock” system in the United States which can delay access to work for months or years.1752 Much less is it legal to condition the ability to work on a refugee’s willingness to renounce other human rights, including to freedom of movement and residence.1753 More generally, the South African Supreme Court of Appeal has determined that the denial of the right to work can in some circumstances amount to degrading treatment: [W]here employment is the only reasonable means for the person’s support other considerations arise. What is then in issue is not merely a restriction upon the person’s capacity for self-fulfilment, but a restriction upon his or her ability to live without positive humiliation and degradation. For it is not disputed that this country, unlike some other countries that receive refugees, offers no State support to applicants for asylum . . . Thus a person who exercises his or her right to apply for asylum, but who is destitute, will have no alternative but to turn to crime, or to begging, or to foraging. I do not suggest that in such circumstances the State has an obligation to provide employment . . . but only that the deprivation of the freedom to work assumes a different dimension when it threatens

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This conclusion is in line with the view of the English Court of Appeal that regulations which denied some refugee claimants access both to work and to social support “necessarily contemplate for some a life so destitute that . . . no civilised nation can tolerate it . . . [S]ome basic provision should be made, sufficient for genuine claimants to survive and pursue their claims . . . Parliament cannot have intended a significant number of genuine asylum-seekers to be impaled on the horns of so intolerable a dilemma: the need either to abandon their claims to refugee status or alternatively to maintain them as best they can but in a state of utter destitution”: R v. Secretary of State for Social Security, ex parte Joint Council for the Welfare of Immigrants, [1996] 4 All ER 385 (Eng. CA, June 21, 1996), per Simon Brown L.J. at 401–402. As subsequently affirmed, “[t]he ratio of the Joint Council case was . . . that asylum-seekers were being deprived of their right to appeal . . . and to remain in the country meanwhile since the impugned regulations made those rights nugatory; they inevitably not merely prejudiced but on occasion defeated those rights, and made the exercise of those rights not merely difficult but totally impossible [emphasis in original]”: Secretary of State for the Home Department v. Jammeh, [1999] Imm AR 1 (Eng. CA, July 30, 1998), per Hobhouse L.J. at 7. “Pending a decision on their claim to be recognized as refugees, asylum seekers should be granted a temporary status, allowing them to enjoy economic, social and cultural rights without discrimination”: UN Committee on Economic, Social and Cultural Rights, “Duties of States towards Refugees and Migrants under the International Covenant on Economic, Social and Cultural Rights,” UN Doc. E/C.12/2017/1, Mar. 13, 2017, at [11]. See text at note 1676. 1752 See text at note 1674. 1753 See Chapters 4.2.4 and 5.2.

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positively to degrade rather than merely to inhibit the realisation of the potential for self-fulfilment.1754

In line with this reasoning, the refusal of Namibia to waive their food import restrictions in order to allow international agencies to feed desperate refugees1755 and of Bangladesh to grant UNHCR access to feed and maintain the 400,000 refugees living outside designated camps1756 were not only violations of the core content of the right to food, but also examples of degrading treatment. But the obligations of states go beyond simply duties to respect and to protect access to the necessities of life. The Committee on Economic, Social and Cultural Rights has also recognized an explicit duty on states to take steps to fulfill this right, particularly where marginalized individuals and social groups are concerned.1757 Because vulnerable individuals and groups cannot always meet their basic needs by independent action, state parties are under a legal duty to take affirmative steps1758 to realize their rights: States parties are also obliged to fulfil (provide) a specific right contained in the Covenant when individuals or a group are unable, for reasons 1754

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Minister of Home Affairs v. Watchenuka, (2004) 1 All SA 21 (SA SCA, Nov. 28, 2003), at [32], per Nugent J.A. This reasoning has been applied to require the granting of trading licenses. “[W]here persons have no other means to support themselves and will as a result be left destitute, the constitutional right to dignity is implicated . . . Put differently, if, because of circumstances, a refugee or asylum seeker is unable to obtain wage-earning employment and is on the brink of starvation, which brings with it humiliation and degradation, and that person can only sustain him- or herself by engaging in trade, that . . . person ought to be able to rely on the constitutional right to dignity in order to advance a case for the granting of a license to trade”: Somali Association of South Africa v. Limpopo Department of Economic Development, Environment, and Tourism, Dec. No. 48/2014 (SA SCA, Sept. 26, 2014), at [43]. See text at note 1627. 1756 See text at note 1628. “The approach of the Committee towards the realization of the rights in the Covenant is marked by its insistence upon a process of equalization. As an initial step towards the realization of the rights in the Covenant, States are required to identify the disadvantaged sectors of the population. Those groups should be the focus of positive State action aimed at securing the full realization of their rights”: Craven, ICESCR Commentary, at 159. The English Court of Appeal has thus recognized that refugee claimants “can as a result of their predicament after they arrive in this country reach a state where they qualify [for government support] because of the effect upon them of the problems under which they are labouring. In addition to the lack of food and accommodation is to be added their inability to speak the language, their ignorance of this country and the fact that they have been subject to the stress of coming to this country in circumstances which at least involve their contending to be refugees. Inevitably the combined effect of these factors with the passage of time will produce one or more of the [qualifying] conditions [for government support]”: R v. Hammersmith and Fulham London Borough Council, ex parte M, (1997) 30 HLR 10 (Eng. CA, Feb. 17, 1997), at 20. This passage was described as “uncontroversial” by the House of Lords in R (on the application of M) v. Slough Borough Council, [2008] UKHL 52 (UK HL, July 30, 2008), at [21].

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beyond their control, to realize that right themselves by the means at their disposal.1759

In relation to the right to healthcare, for example, the Committee has noted that [v]iolations of the obligation to fulfil occur through the failure of States parties to take all necessary steps to ensure the realization of the right to health. Examples include . . . insufficient expenditure or misallocation of public resources which results in the non-enjoyment of the right to health by individuals or groups, particularly the vulnerable or marginalized.1760

Similarly, the duty to ensure access to housing requires “States parties [to] give due priority to those social groups living in unfavourable conditions by giving them particular consideration.”1761 Refugees are frequently a clear example of such a group: Asylum-seekers, refugees, and displaced persons do not have the same opportunity as others to achieve an adequate standard of living on the basis of their own efforts. They therefore require, to a larger extent than the ordinary public, direct provisions, until conditions are established in which they can obtain their own entitlements.1762

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UN Committee on Economic, Social and Cultural Rights, “General Comment No. 14: The Right to the Highest Attainable Standard of Health” (2000), UN Doc. HRI/GEN/1/ Rev.7, May 12, 2004, at [37]. See also Committee on Economic, Social and Cultural Rights, “General Comment No. 12: The Right to Adequate Food” (1999), UN Doc. HRI/ GEN/1/Rev.7, May 12, 2004, at [15]: “Finally, whenever an individual or group is unable, for reasons beyond their control, to enjoy the right to adequate food by the means at their disposal, States have the obligation to fulfil (provide) that right directly. This obligation also applies for persons who are victims of natural or other disasters”; and UN Committee on Economic, Social and Cultural Rights, “General Comment No. 15: The Right to Water” (2002), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [37(b)], which defines the core content of the right to water to include the obligation “[t]o ensure the right of access to water and water facilities and services on a non-discriminatory basis, especially for disadvantaged or marginalized groups.” UN Committee on Economic, Social and Cultural Rights, “General Comment No. 14: The Right to the Highest Attainable Standard of Health” (2000), UN Doc. HRI/GEN/1/ Rev.7, May 12, 2004, at [52]. UN Committee on Economic, Social and Cultural Rights, “General Comment No. 4: The Right to Adequate Housing” (1991), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [11]. Eide, “Standard of Living,” at 105. Thus, for example, the Committee on Economic, Social and Cultural Rights has observed that “[w]hereas the right to water applies to everyone, States parties should give special attention to those individuals and groups who have traditionally faced difficulties in exercising this right, including . . . refugees [and] asylum-seekers”: UN Committee on Economic, Social and Cultural Rights, “General Comment No. 15: The Right to Water” (2002), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [16].

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This direct obligation of states to provide the substance of basic survival rights to the most vulnerable – what Eide termed an obligation of “last recourse”1763 – inheres even when a state is faced with extraordinary resource constraints.1764 It should moreover be interpreted to apply once a state becomes aware of an imminent risk to vulnerable persons, not simply once the necessities of life have already been denied. In interpreting a comparable affirmative duty under European human rights law in a case that successfully challenged the United Kingdom’s policy of denying income support to persons who failed to claim refugee status immediately upon arrival,1765 the Supreme Court of the United Kingdom insisted that [i]t is not just a question of “wait and see” . . . [A]s soon as the asylumseeker makes it clear that there is an imminent prospect that a breach . . . will occur because the conditions which he or she is having to endure are on the verge of reaching the necessary degree of severity, the Secretary of State has the . . . duty . . . to act to avoid it.1766

In sum, the rights set out in the Covenant on Economic, Social and Cultural Rights – including to the necessities of life, and to physical and mental healthcare – inhere in everyone under a state’s jurisdiction, including refugees. 1763 1764

1765 1766

Eide, “Article 25,” at 388. “[T]he Committee underlines the fact that even in times of severe resources constraints, whether caused by a process of adjustment, of economic recession, or by other factors, the vulnerable members of society can and indeed must be protected by the adoption of relatively low-cost targeted programmes”: UN Committee on Economic, Social and Cultural Rights, “General Comment No. 3: The Nature of States Parties’ Obligations” (1990), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [12]. See also UN Committee on Economic, Social and Cultural Rights, “General Comment No. 12: The Right to Adequate Food” (1999), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [28]: “Even where a State faces severe resource constraints, whether caused by a process of economic adjustment, economic recession, climatic conditions or other factors, measures should be undertaken to ensure that the right to adequate food is especially fulfilled for vulnerable population groups and individuals.” See text at notes 1683–1684. R (Limbuela) v. Secretary of State for the Home Department, [2005] UKHL 66 (UK HL, Nov. 3, 2005), at [62], per Lord Hope. All of the judges speaking to the issue agreed that “sleeping rough” was ordinarily persuasive evidence that that point had been reached: ibid. at [9], [60], [72]. In the decision under review, the Court of Appeal had observed that “[t]he obligation ‘to take measures’ [under the European Convention on Human Rights] seems to me to imply more than simply acting as a long-stop in individual cases as they arise. That may be sufficient if the alternative system of charitable support is able to cope with the generality of cases, so that . . . suffering . . . is truly the exception. However, if on the available information, the scale of the problem is such that the system is unable to cope, then it is the responsibility of the State to take reasonable measures to ensure that it can cope. How that is done, for example whether by direct support or by financial assistance to charities working in the field, is a policy matter for the State”: R (Limbuela) v. Secretary of State for the Home Department, [2004] EWCA Civ 540 (Eng. CA, May 21, 2004), per Carnwath L.J. at [121].

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Any discrimination in the allocation of the enumerated rights is automatically a violation of the Covenant. The essential duty of states is to implement the rights in the Covenant progressively and as a matter of priority, though it is understood that genuine resource constraints may preclude full realization of all rights immediately in some countries. Retrogression is, however, presumptively in breach of the Covenant, as is the failure to implement rights in accordance with human rights standards and with real accountability. Less developed countries may determine the extent to which they will extend “economic” rights to non-citizens, including refugees. But that flexibility does not apply to the core content of the most basic rights set by the Covenant:1767 non-fulfillment of the core content of these rights on economic grounds by even the poorest states is in breach of the Covenant unless the government is able to demonstrate that it has unsuccessfully made best efforts to secure international aid to implement these rights, and has distributed whatever resources are available without discrimination. This obligation to respect the core content of basic rights in virtually all circumstances includes a duty of affirmative implementation, at least where it is foreseeable that individuals and groups are unlikely to be able to secure their rights by autonomous effort.

4.4.2.1 Food Turning first to the specific content of the right to food, paragraph 2 of Art. 11 establishes the right of everyone to be free from hunger as a “fundamental right,” the only right so defined in either Covenant.1768 The most basic goal of ensuring “that individuals have a right not to die from hunger and not to suffer (either physically or mentally) from malnutrition”1769 is undisputed,1770 as is clear from the view of the Committee on Economic, Social and Cultural Rights that “a State party in which any significant number of individuals is deprived of essential foodstuffs . . . is, prima facie, failing to discharge its obligations under the Covenant.”1771 1767

1768

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Thus, “in so far as the Covenant establishes the rights of ‘everyone,’ non-nationals would have a right to the enjoyment of the minimum core content of those rights . . . [I]n practice, the Committee will censure situations where aliens enjoy few rights and are the objects of exploitation”: Craven, ICESCR Commentary, at 174. P. Alston, “International Law and the Human Right to Food,” in P. Alston and K. Tomasevski eds., International Law and the Human Right to Food 10 (1984) (Alston, “Right to Food”), at 32. Ibid. at 13–14. “[A]ny proposed limitations on the right to food which could result in death by starvation are clearly unacceptable. Apart from violating the right to food provisions, such limitations would also violate the right to life which, according to the Human Rights Committee, is ‘the supreme right from which no derogation is permitted even in times of public emergency which threatens the life of the nation’”: ibid. at 21. UN Committee on Economic, Social and Cultural Rights, “General Comment No. 3: The Nature of States Parties’ Obligations” (1990), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at

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In accordance with the general approach to economic and social rights set out above, the core right to food may be breached “through the direct action of States or other entities insufficiently regulated by States,” including by “the prevention of access to humanitarian food aid in internal conflicts or other emergency situations.”1772 Moreover, “whenever an individual or group is unable, for reasons beyond their control, to enjoy the right to adequate food by the means at their disposal, States have the obligation to fulfil (provide) that right directly.”1773 There is therefore little doubt that the Ethiopian diversion of refugee food aid to rebel soldiers1774 was in breach of the core right to food. There was, however, no comparable act of “prevention” of food delivery when insecurity and fighting stymied South Sudan’s efforts to effectuate food deliveries to refugees,1775 or when massive floods destroyed food rations intended for Sahrawi refugees in Algeria.1776 Where failure to deliver the core content of the right to food stems not from unwillingness but rather from simple inability to comply with the Covenant, the state is not in breach so long as it is able to show that every reasonable effort was taken to meet its duties.1777 The Committee has defined the core content of the right to food to include “[t]he availability of food in a quantity and quality sufficient to satisfy the dietary needs of individuals, free from adverse substances, and acceptable within a given culture [as well as] [t]he accessibility of such food in ways that are sustainable and that do not interfere with the enjoyment of other human rights.”1778 The accessibility branch of this core duty means that failure to

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[10]. See also UN Committee on Economic, Social and Cultural Rights, “General Comment No. 12: The Right to Adequate Food” (1999), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [17]: “Violations of the Covenant occur when a State fails to ensure the satisfaction of, at the very least, the minimum essential level required to be free from hunger.” UN Committee on Economic, Social and Cultural Rights, “General Comment No. 12: The Right to Adequate Food” (1999), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [19]. The African Commission on Human and Peoples’ Rights observed that the core content of the right to food could be violated by, for example, government actions which destroy or contaminate food sources (or which allow private parties to do so), as well as by the promotion of terror which poses a significant obstacle to the efforts of individuals to feed themselves: Social and Economic Rights Action Center and Center for Economic and Social Rights v. Nigeria, Dec. ACPHR/COMM/A044/1 (May 27, 2002), at [65], summarized at (2002) 96(4) American Journal of International Law 937. UN Committee on Economic, Social and Cultural Rights, “General Comment No. 12: The Right to Adequate Food” (1999), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [15]. In addition, however, all states “have a joint and individual responsibility . . . to cooperate in providing disaster relief and humanitarian assistance in times of emergency, including assistance to refugees and internally displaced persons”: ibid. at [38]. See text at notes 1630–1631. 1775 See text at note 1625. 1776 See text at note 1626. Saul, ICESCR Commentary, at 872, drawing on UN Committee on Economic, Social and Cultural Rights, “General Comment No. 12: The Right to Adequate Food” (1999), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [17]. UN Committee on Economic, Social and Cultural Rights, “General Comment No. 12: The Right to Adequate Food” (1999), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [8].

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supervise food distribution adequately in camps where cultural norms dictate that men should eat their fill before women and children are fed1779 is in breach of the Covenant. The requirement that food be provided in a way that does not infringe other human rights was violated by Nepal when its discriminatory distribution system effectively kept women in abusive relationships.1780 Equally clearly, the requirement of dietary sufficiency suggests a failure to meet Covenant requirements when niacin shortages in food caused Mozambican refugees in Malawi to develop pellagra1781 and when Ethiopia’s failure to provide vegetables and food containing adequate iron led to anemia among refugee women and children.1782 And because cultural acceptability is also an aspect of the core duty, Botswana’s refusal to provide refugees from the Democratic Republic of Congo with either fish or meat1783 was also of doubtful legality. Conversely, it is unlikely that the Covenant was breached when Congolese refugees in Cameroon were forced to subsist on the local staple of cassava due to the failure of the international community to provide culturally appropriate food aid to assist an impoverished host country.1784 Second and more generally, states are under a duty to promote a more complete right to “adequate food” under Art. 11(1). This branch of the right to food goes beyond concerns of immediate access to quantities of food required for survival,1785 focusing instead on the sufficiency of diet over time to maintain health and to enable individuals to lead a normal, active life,1786 including the establishment of food security for the medium to long term.1787 This broader right to adequate food is not, however, part of the core content of 1779

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See text at note 1633. “Women are often denied equal enjoyment of their human rights, in particular by virtue of the lesser status ascribed to them by tradition and custom, or as a result of overt or covert discrimination”: UN Committee on Economic, Social and Cultural Rights, “General Comment No. 16: The Equal Right of Men and Women to the Enjoyment of all Economic, Social and Cultural Rights” (2005), UN Doc. E/C.12/ 2005/4, at [5]. In the result, state parties have a duty “to ensure that women have access to or control over means of food production, and actively to address customary practices under which women are not allowed to eat until the men are fully fed, or are only allowed less nutritious food”: ibid. at [28]. See text at note 1634. 1781 See text at note 1645. 1782 See text at note 1642. See text at note 1643. 1784 See text at note 1647. “The right to adequate food . . . shall . . . not be interpreted in a narrow or restrictive sense which equates it with a minimum package of calories, proteins and other specific nutrients”: ibid at [6]. Alston, “Right to Food,” at 22–23. “The notion of sustainability is intrinsically linked to the notion of adequate food or food security, implying food being accessible for both present and future generations. The precise meaning of ‘adequacy’ is to a large extent determined by prevailing social, economic, cultural, climatic, ecological and other conditions, while ‘sustainability’ incorporates the notion of long-term availability and accessibility”: UN Committee on Economic, Social and Cultural Rights, “General Comment No. 12: The Right to Adequate Food” (1999), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [7].

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the right to food. A state therefore breaches its more general obligations under Art. 11(1) only when it fails to give priority in the allocation of available resources to the progressive and non-discriminatory realization of the right.1788

4.4.2.2 Water The Committee on Economic, Social and Cultural Rights has set out detailed standards relating specifically to the right to water,1789 determined to be a component of the duties set by both Arts. 11 and 12 of the Covenant.1790 In line with its approach to the right to food, the right to water is defined as the entitlement of “everyone to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses.”1791 More specifically, it has been determined that “[r]efugees and asylum-seekers should be granted the right to water on the same conditions as granted to nationals.”1792 The core content of the right to water, specifically said to be opposable even in relation to the poorest states,1793 includes a number of components of frequent relevance to refugees. Most basically, it includes the duty “[t]o ensure access to the minimum essential amount of water, that is sufficient and safe for personal and domestic uses to prevent disease [and] [t]o ensure the right of access to water and water facilities and services on a non-discriminatory basis, especially for disadvantaged or marginalized groups.”1794 The provision to 1788

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In practice, however, the Committee is reported not to have directed much of its attention to non-core concerns. “That Committee members have only rarely requested information about the nutritional status of the population, or about food quality and safety, may be criticized as being unduly cautious. However, the Committee does face considerable problems in assessing the level of enjoyment of the right to food even in so far as it relates even to malnutrition”: Craven, ICESCR Commentary, at 309. UN Committee on Economic, Social and Cultural Rights, “General Comment No. 15: The Right to Water” (2002), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004. Ibid. at [3]. It seems that the Committee on Economic, Social and Cultural Rights “has taken the silence on the part of ICESCR states parties in the face of [the Committee’s] criticisms of their domestic implementation (or violation) of the human right to water as tacit assent by states to the fact that the ICESCR contains the human right to water”: T. Soboka Bulto, “The Emergence of the Human Right to Water in International Human Rights Law: Invention or Discovery?,” (2011) 12 Melbourne Journal of International Law 290, at 306. UN Committee on Economic, Social and Cultural Rights, “General Comment No. 15: The Right to Water” (2002), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [2]. Ibid. at [16(f)]. “A State which is unwilling to use the maximum of its available resources for the realization of the right to water is in violation of its obligations under the Covenant. If resource constraints render it impossible for a State party to comply fully with its Covenant obligations, it has the burden of justifying that every effort has nevertheless been made to use all available resources at its disposal in order to satisfy, as a matter of priority, the obligations outlined above”: ibid. at [41]. Ibid. at [37(a), (b)].

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refugees in western Ethiopia of less than 1 liter of water per day therefore amounted to a presumptive breach of the Covenant. More explicitly, at least in the case of vulnerable populations, states are required to ensure that there are “a sufficient number of water outlets to avoid prohibitive waiting times; and that are at a reasonable distance from the household”1795 – a standard not met when there was only one borehole for all the Angolan refugees at the Maheba camp in Zambia.1796 The duty to provide access to safe water was abridged when Bangladesh left refugees no option but to drink water polluted by a nearby latrine,1797 and when refugees living in abandoned warehouses in Greece were forced to drink nitrate-contaminated water.1798 The core content of the right to water also comprises the obligation “[t]o ensure [that] personal security is not threatened when having to physically access water.”1799 This standard is clearly not met when state parties require refugee women to collect water in circumstances that risk their physical security1800 or their health by exposure to such diseases as malaria or yellow fever.1801

4.4.2.3 Clothing The right to adequate clothing has not been authoritatively elaborated. In drafting the predecessor Universal Declaration of Human Rights,1802 the specific reference to adequate food and clothing was the result of a well-received amendment by China to give substance to the notion of an “adequate standard of living.”1803 The language appears simply to have been carried forward into the Economic Covenant.1804 In practice, however, the right to clothing has been treated as something of a “poor cousin” to the other components of Art. 11: [T]he right to clothing has largely failed to maintain an independent status, being either overlooked or effectively subsumed within the right to shelter generally and the right to housing specifically. The need for people to be adequately clothed has not diminished, rather the instance of its lack is no longer considered widespread or critical, at least in relation to the other deprivations that are typically endured by the poor and destitute. Notably, while there now exist separate UN agencies for the rights of food, water and housing, there is none for the right to clothing.1805

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Ibid. at [37(c)]. 1796 See text at note 1651. 1797 See text at note 1652. See text at note 1663. UN Committee on Economic, Social and Cultural Rights, “General Comment No. 15: The Right to Water” (2002), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [37(d)]. See Chapter 4.3 at note 1370. 1801 See text at note 1649. “Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services”: Universal Declaration, at Art. 25(1). Eide, “Article 25,” at 394. 1804 Eide, “Standard of Living,” at 89. Saul, ICESCR Commentary, at 924.

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The right to adequate clothing was, however, briefly considered by the Committee on Economic, Social and Cultural Rights in preparing its general comment on the rights of persons with disabilities. The Committee interpreted Art. 11 to require access to clothing that allows disabled persons “to function fully and effectively in society,”1806 suggesting a purposive and contextualized understanding of adequacy.1807 In line with this approach, Art. 11 should be understood to require that refugees have access to clothing which is, for example, suited to the climate and to the work and other roles which they undertake in the host country. They should also not be compelled to wear clothing which stigmatizes them as foreign to the host society, since this may amount to an invitation to discrimination,1808 or which impedes their ability to function in the asylum state. The right of refugees to choose to wear the clothing of their society or country of origin is moreover logically protected by the right to cultural expression under Art. 27 of the Civil and Political Covenant1809 unless there are reasonable countervailing concerns, such as for the safety and well-being of the refugee.1810 1806

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“The right to adequate clothing also assumes a special significance in the context of persons with disabilities who have particular clothing needs, so as to enable them to function fully and effectively in society. Wherever possible, appropriate personal assistance should also be provided in this connection. Such assistance should be undertaken in a manner and spirit which fully respect the human rights of the person(s) concerned”: UN Committee on Economic, Social and Cultural Rights, “General Comment No. 5: Persons with Disabilities” (1994), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [33]. The Committee has thus far declined to issue a general definition of “adequacy,” preferring to provide context-specific interpretive guidance (but the right to adequate clothing has not yet been the subject of a general comment). In another context, the Committee has seen a commitment to non-discrimination as relevant to the notion of “adequacy.” In considering the right to education under Art. 13, the Committee held that “[t]he requirement that ‘an adequate fellowship system shall be established’ should be read with the Covenant’s non-discrimination and equality provisions; the fellowship system should enhance equality of educational access for individuals from disadvantaged groups”: UN Committee on Economic, Social and Cultural Rights, “General Comment No. 13: The Right to Education” (1999), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [26]. “In those cases where aliens constitute a minority within the meaning of article 27, they shall not be denied the right, in community with other members of their group, to enjoy their own culture, to profess and practise their own religion and to use their own language. Aliens are entitled to equal protection by the law. There shall be no discrimination between aliens and citizens in the application of these rights. These rights of aliens may be qualified only by such limitations as may be lawfully imposed under the Covenant”: UN Human Rights Committee, “General Comment No. 15: The Position of Aliens under the Covenant” (1986), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [7]. In its decision in Bhinder v. Canada, HRC Comm. No. 208/1986, UN Doc. CCPR/C/37/ D/208/1986, decided Nov. 9, 1989, the Human Rights Committee considered the case of a Sikh who, by reason of his religion, refused to wear safety headgear at work. Arguing that any safety risk was confined to himself, the Sikh claimed his freedom of religion was violated. The government countered that it was obliged by Art. 7(b) of the Economic

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4.4.2.4 Housing Like the right to food, the Committee has identified the duty to provide “basic shelter and housing” as a core obligation of all state parties, whatever their circumstances.1811 It has not, however, gone on specifically to elaborate the substance of that minimum obligation, except in a negative sense.1812 The Committee determined in 1990 “that instances of forced eviction are prima facie incompatible with the requirements of the Covenant and can only be justified in the most exceptional circumstances, and in accordance with the relevant principles of international law,”1813 and subsequently developed this position in a free-standing general comment.1814 Forced eviction is to be an option of last resort,1815 carefully regulated by law,1816 and “should not result

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Covenant to ensure a safe working environment for all. In dismissing the claim as inadmissible, the Human Rights Committee held that “[i]f the requirement that a hard hat be worn is seen as a discrimination de facto against persons of the Sikh religion . . . then, applying criteria now well established in the jurisprudence of the Committee, the legislation requiring that workers in federal employment be protected from injury and electric shock by the wearing of hard hats is to be regarded as reasonable and directed towards objective purposes that are compatible with the Covenant”: ibid. at [62]. UN Committee on Economic, Social and Cultural Rights, “General Comment No. 3: The Nature of States Parties’ Obligations” (1990), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [10]. See generally Chapter 1.4.5 at note 437. For example, the Committee has criticized the housing of refugees and migrants “in geographically segregated areas”: UN Committee on Economic, Social and Cultural Rights, “Duties of States towards Refugees and Migrants under the International Covenant on Economic, Social and Cultural Rights,” UN Doc. E/C.12/2017/1, Mar. 13, 2017, at [14]. UN Committee on Economic, Social and Cultural Rights, “General Comment No. 3: The Nature of States Parties’ Obligations” (1990), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [18]. UN Committee on Economic, Social and Cultural Rights, “General Comment No. 7: The Right to Adequate Housing (Forced Evictions)” (1997), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004. Interestingly, the African Commission on Human and Peoples’ Rights relied on General Comment No. 7 in a complaint brought on behalf of the people of Ogoniland against Nigeria: Social and Economic Rights Action Center and Center for Economic and Social Rights v. Nigeria, Dec. ACPHR/COMM/A044/1 (May 27, 2002), at [63], summarized at (2002) 96(4) American Journal of International Law 937. “States parties shall ensure, prior to carrying out any evictions, and particularly those involving large groups, that all feasible alternatives are explored in consultation with the affected persons, with a view to avoiding, or at least minimizing, the need to use force”: UN Committee on Economic, Social and Cultural Rights, “General Comment No. 7: The Right to Adequate Housing (Forced Evictions)” (1997), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [13]. “Although the Committee has indicated in its General Comment No. 3 (1990) that such measures may not be indispensable in relation to all rights, it is clear that legislation against forced evictions is an essential basis upon which to build a system of effective protection . . . The legislation must also apply to all agents acting under the authority of the State or who are accountable to it. Moreover, in view of the increasing trend in some States towards the Government greatly reducing its responsibilities in the housing sector,

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in individuals being rendered homeless or vulnerable to the violation of other human rights.”1817 The right to be protected against forced eviction is moreover specifically said to inhere in refugees and other involuntary migrants: [T]he practice of forced evictions . . . also takes place in connection with forced population transfers, internal displacement, forced relocations in the context of armed conflict, mass exoduses and refugee movements. In all of these contexts, the right to adequate housing and not to be subjected to forced eviction may be violated through a wide range of acts or omissions attributable to States parties. Even in situations where it may be necessary to impose limitations on such a right, full compliance with article 4 of the Covenant is required so that any limitations imposed must be “determined by law” only insofar as this may be compatible with the nature of these [i.e. economic, social, and cultural] rights and solely for the purpose of promoting the general welfare in a democratic society.1818

As such, the decision of Venezuelan President Maduro to order the demolition of the homes of Colombian refugees to compel their departure1819 was both a breach of the Economic Covenant and an act of refoulement. Similarly, because “[f]orced eviction and house demolition as a punitive measure are . . . inconsistent with the norms of the Covenant,”1820 Lebanon’s forced eviction of several hundred Syrian refugees after the murder of a local woman1821 was an unlawful act. Beyond the core duty stringently to curb resort to forced eviction, the affirmative content of the right to adequate housing “should not be interpreted in a narrow or restrictive sense which equates it with, for example, the shelter provided by merely having a roof over one’s head or views shelter exclusively as a commodity. Rather it should be seen as the right to live somewhere in security, peace and dignity.”1822 This fundamental standard was clearly not

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States parties must ensure that legislative and other measures are adequate to prevent and, if appropriate, punish forced evictions carried out, without appropriate safeguards, by private persons or bodies”: ibid. at [9]. Ibid. at [16]. 1818 Ibid. at [5]. 1819 See text at note 1660. UN Committee on Economic, Social and Cultural Rights, “General Comment No. 7: The Right to Adequate Housing (Forced Evictions)” (1997), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [12]. The Committee observes that this right is grounded not only in Art. 11 of the Economic Covenant, but also in “the Geneva Conventions of 1949 and Protocols thereto of 1977 concerning prohibitions on the displacement of the civilian population and the destruction of private property”: ibid. See text at note 1659. UN Committee on Economic, Social and Cultural Rights, “General Comment No. 4: The Right to Adequate Housing” (1991), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [7]. The Committee has elaborated seven factors which are the benchmarks for compliance: legal security of tenure; availability of services, materials, facilities, and infrastructure; affordability; habitability; accessibility; location; and cultural adequacy: ibid. at Annex III, at [6]–[8].

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met when Kosovar refugees were left without shelter in Albania,1823 when Jordanian officials gave refugees no option but to dig holes and cover themselves with plastic sheets after refusing to allow them entry,1824 or when Chad left refugees awaiting registration to squat in the forest with no more than flimsy huts as shelter.1825 Nor was secure access to housing available when Pakistan effectively forced Afghan refugees to choose between living in a place where their right to physical security could be respected (but where they would be given no rations) or moving to a place where they were at risk (but would be given food and other key supplies).1826 The “security, peace and dignity” dimension of the right moreover means that the right to housing was also infringed when Bangladesh ordered the placement of refugee tents in areas known to be frequented by elephants, resulting in deaths by trampling.1827 The “adequacy” of housing is moreover determined not only “by social, economic, cultural, climatic, ecological and other factors,”1828 but also by reference to legal security of tenure, the availability of facilities and infrastructure, affordability, habitability, accessibility, location, and cultural adequacy.1829 The obligation of states to take affirmative action to ensure access to adequate housing applies with particular stringency in relation to marginalized or disadvantaged individuals and groups.1830 This standard was not met when chronic housing shortages in Greece led refugees to seek shelter in abandoned buildings and warehouses, sometimes for years,1831 or when Iraq left Syrian refugees to squeeze into a manifestly inadequate number of tents, leading to severe sanitation issues.1832 Nor was it respected when France failed to find shelters for refugees early in 2017, leading to deaths by freezing.1833 Among the matters most vital to refugees, adequate shelter must contain certain facilities essential for health, security, comfort and nutrition. All beneficiaries of the right to adequate housing should have sustainable access to natural and common resources, safe drinking water, 1823 1826 1828

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See text at note 1655. 1824 See text at note 1656. 1825 See text at note 1658. See text at note 1640. 1827 See text at note 1657. UN Committee on Economic, Social and Cultural Rights, “General Comment No. 4: The Right to Adequate Housing” (1991), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [8]. Ibid. at [8(a)–(g)]. The Committee’s general comment specifically endorses the conclusion of the Commission on Human Settlements and the Global Strategy for Shelter that “[a]dequate shelter means . . . adequate privacy, adequate space, adequate security, adequate lighting and ventilation, adequate basic infrastructure and adequate location with regard to work and basic facilities – all at a reasonable cost”: ibid. at [7]. “States parties must give due priority to those social groups living in unfavourable conditions by giving them particular consideration. Policies and legislation should correspondingly not be designed to benefit already advantaged social groups at the expense of others”: UN Committee on Economic, Social and Cultural Rights, “General Comment No. 4: The Right to Adequate Housing” (1991), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [11]. See text at note 1798. 1832 See text at note 1662. 1833 See text at note 1689.

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energy for cooking, heating and lighting, sanitation and washing facilities, means of food storage, refuse disposal, site drainage and emergency services.1834

It must also be habitable, in the sense that it provides the inhabitants “with adequate space and protect[s] them from cold, damp, heat, rain, wind or other threats to health, structural hazards, and disease vectors. The physical safety of occupants must be guaranteed as well.”1835 These standards were not met when Mexico forced up to fifteen Central American refugees to share a single small housing unit,1836 when Uganda provided refugees with so few latrines that they were compelled to defecate outside1837 or when Greece left refugees in tent cities to contend with sewage overflows and wild snakes in bathrooms.1838 The decision of Médecins Sans Frontières to withdraw from serving refugees at an Italian reception center in protest over the extremely unsanitary conditions there1839 similarly attests to the extent to which refugees – even in wealthy countries – are at times forced to contend with woefully inadequate housing. Nor was the duty to ensure access to housing that is adequate in the sense of ensuring access to facilities essential for health and security respected when the United Kingdom dispersed refugees to remote areas far from medical, psychological, and other basic support services.1840 The adequacy of housing also requires that account be taken of psychological impacts. Thus, in a case in which a refugee complained that the public housing assigned exacerbated her post-traumatic stress disorder because it was reminiscent of the prison she had endured before fleeing to seek asylum, the UK Supreme Court rightly insisted on an assessment that would “consider[] her mental state against the background of her imprisonment in Iran.”1841

4.4.3 Access to Healthcare In thinking about how best to secure the necessities of life for refugees, it is critical to focus on the interrelationship between food, shelter, and health. As David Keen cogently observed, Filling the refugees’ bowls may not keep them alive. Typically, it is not simply hunger that kills refugees, but a complicated interaction between hunger and disease. Disease prevention and treatment has a critical role to play. This need not cost the earth. In fact, simple health initiatives can save more lives than high-tech medical treatments – in part because they focus 1834

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UN Committee on Economic, Social and Cultural Rights, “General Comment No. 4: The Right to Adequate Housing” (1991), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [8(b)]. Ibid. at [8(d)]. 1836 See text at note 1661. 1837 See text at note 1664. See text at note 1663. 1839 See text at note 1665. 1840 See text at note 1692. Poshteh v. Royal Borough of Kensington and Chelsea, [2017] UKSC 36 (UK SC, Feb. 14, 2017), at [39].

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on prevention and in part because they can reach much larger numbers.1842

In one particularly tragic case, the leading cause of death among children under the age of five in Tanzania’s Lukole refugee camp was found to be acute respiratory tract infection. UNHCR’s medical coordinator determined that the children’s respiratory infections were the result of exposure to the cold, which usually took place because mothers who needed to go farming early in the morning were forced to take their children with them due to a lack of alternative care.1843 Successful refugee primary healthcare initiatives, such as that undertaken in Somalia during the late 1980s, therefore focus on providing food, water, and shelter, as well as on immunizing refugees against common diseases, and treating at least the most prevalent post-flight health concerns.1844 Thailand extended access to its national health service to all persons in its territory regardless of status, ensuring that refugees received the same services as citizens.1845 Some asylum countries have been especially quick to respond to the need of refugees for access to medical care. For example, when confronted with millions of Afghan refugees, Iranian authorities wisely minimized the risk of epidemic by mobilizing doctors and medicine to treat the refugees for malaria, tuberculosis, and other diseases upon arrival, and by granting them completely free access to their own hospitals.1846 In stark contrast, until 2009 Botswana deliberately withheld access to HIV treatment from non-citizens, including refugees, on the basis that such a program “would attract more refugees to the country, and they were already 1842 1844

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Keen, Right to Life, at 20. 1843 (2001) 86 JRS Dispatches (Feb. 3, 2001). N. Van Hear and B. Harrell-Bond, “Refugees and Displaced People: Health Issues,” in UN Institute for Training and Research ed., The Challenge of African Disasters (1991) (Van Hear and Harrell-Bond, “Health Issues”), at 69. See also World Health Organization and UNICEF, Primary Health Care (1978) and UNHCR, Handbook for Emergencies (1982). W. Yan, “Only One Country Offers Universal Health Care to all Migrants,” National Public Radio, Mar. 31, 2016. A. Billard, “Afghan Refugees: Health the Number One Concern,” (1986) 26 Refugees 12. Immunization efforts were pursued in other areas as well, albeit with mixed results: “Tibetan refugees in India were provided routine childhood immunizations according to the national EPI [expanded program on immunization] schedule of the India Ministry of Health. The program reported challenges in delivery of vaccine to the target population, with less than half of the Tibetan refugee children reported as fully vaccinated. As a solution to improve routine immunization coverage among displaced populations, the Macedonian Ministry of Health delivered vaccines to Albanian Kosovar refugees living in camps and the surrounding communities through weekly mobile immunization clinics. In Guinea, more than 90% of Liberian and Sierra Leonean refugee mothers knew about tetanus vaccination during pregnancy, though only 11–42% utilized the free antenatal care in government facilities sponsored by UNHCR”: E. Lam et al., “Vaccine-Preventable Diseases in Humanitarian Emergencies among Refugee and Internally-Displaced Populations,” (2011) 11(11) Human Vaccines & Immunotherapeutics 2627, at 2633.

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struggling to provide treatment to their own people.”1847 The 16,200 refugees in Uganda’s Kyaka II camp had access to only a single doctor, with emergency surgical facilities some 140 kilometers away.1848 Shortages of drugs and other medical supplies were also prevalent in refugee camps inside Kenya;1849 the failure to immunize refugees in 2009 resulted in outbreaks of H1N1/A, polio, and measles among those in the Dadaab camps.1850 In 2014, South Africa enacted guidelines requiring non-citizens – including refugees and asylumseekers – to pay a means-tested fee before being treated.1851 The introduction of user fees on services by Jordan for those living outside refugee camps required many refugees to pay the much higher “foreigner’s rate” for access to medical services.1852 1847

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Providers were quick to point out the flaws in this justification: “Botswana hosts the smallest number of refugees in the region, and has one of the largest ARV programmes. Neighbouring South Africa, Zambia and Namibia have all extended ARV access to their refugee populations, while other countries in the region provide access on an unofficial basis”: “HIV Treatment for Refugees, but for How Long?” IRIN News, July 7, 2010; see also “No Refuge from HIV/AIDS in Dukwi Camp,” IRIN News, June 12, 2006. Although treatment was extended to refugees in 2009, its continued availability is subject to the availability of funding by the United States (“HIV Treatment for Refugees, but for How Long?” IRIN News, July 7, 2010); as of June 2014, such funding was confirmed for extension for an additional five years: G. Williams, “Refugees have to Abide by Laws – Makgonatsotlhe,” Botswana Daily News, June 22, 2014. “For emergency services such as caesarean sections, minor surgery and blood transfusions, patients must go to Kyegegwa Health Centre 15km away. Patients requiring major surgery are referred to Fort Portal, a government hospital about 140km from the settlement. Because Kyaka II sprawls over 209sqkm, some residents end up walking for hours to reach the facilities. Moreover, there is only one ambulance serving the whole settlement, complicating and delaying emergency services”: “One Doctor for 16,200 Refugees,” IRIN News, Mar. 11, 2010. “Forgotten Refugees Face Epidemics, Food Cuts,” IRIN News, June 22, 2006; “Where Life can be Brutal and Short,” IRIN News, Dec. 18, 2009. “Where Life can be Brutal and Short,” IRIN News, Dec. 18, 2009. “National health policy guarantees asylum seekers, refugees and undocumented migrants from other SADC (Southern African Development Community) countries, the same rights to treatment at public sector hospitals as South African citizens. They are supposed to pay only what they can afford, based on their income. However, last August, Gauteng’s provincial health department distributed a draft set of guidelines for managing nonSouth African patients that appears to have sowed confusion among healthcare providers and resulted in patients . . . being denied critical care. The root of the confusion seems to stem from the guidelines’ definition of foreign patients as including refugees and asylum seekers. Such patients, according to the guidelines, should be charged in full before being treated. Lower down, it lists refugees and asylum seekers (but not SADC citizens) as among the categories of foreign patients who should in fact be charged according to income means testing”: K. Siegfried, “South Africa’s Health System Shuns Asylum Seekers,” Oct. 31, 2014. “Between 2011 and November 2014, Syrians with MoI [Ministry of Interior] service cards could access health care in Ministry of Health facilities for free, and were treated in the same way as insured Jordanians. In November 2014, the government changed its policy

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Even when healthcare is available in principle, it may be provided in ways that fail to take account of linguistic, cultural, and social barriers. For example, the failure of Turkish hospital call centers to offer services in Arabic has made it difficult for Syrian refugees even to secure an appointment.1853 In contrast, Tanzania’s decision to offer cholera immunization in the evening hours to Muslim refugees observing Ramadan contributed to the program’s realization of a coverage rate of 93 percent.1854 The health needs of women refugees are perhaps most frequently neglected. In order to secure some income, urban refugee women in Kenya often turn to prostitution.1855 Yet Kenya’s HIV policy guarantees free services only to those with permanent resident status, effectively denying treatment to urban refugees.1856 Female Afghan refugees in Pakistan were unable to visit doctors in public health units because of the need to respect purdah rules (requiring the seclusion of females). Instead, a male relative was sent to explain the female’s ailment to a doctor.1857 In Lebanon, Syrian refugee women seeking antenatal care were faced with an impossible dilemma: with humanitarian field hospitals prohibited by the government,1858 refugees unable to pay for services at public hospitals and clinics faced the confiscation of identity papers or the detention of newborns.1859

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and required Syrian refugees holding MoI cards to pay the same rates as uninsured Jordanians. Syrian refugees with MoI cards therefore are still partly subsidized by the state and have to pay around 35–60% of the user fees paid by other foreigners in Jordan. However, Syrians without MoI service cards are treated like other foreigners accessing public services and required to pay a ‘foreigners rate,’ which is up to 60% higher than the uninsured Jordanian rate”: Amnesty International, “Living on the margins: Syrian refugees in Jordan struggle to access health care,” Mar. 2016, at 18; see also ibid. at 5–6. “The language barrier remains the predominant problem encountered by asylum seekers in seeking to access . . . health care services. Hospitals in Turkey give appointments to patients over the telephone. Since hospital appointment call centres do not serve prospective patients in any language other than Turkish, foreign nationals need the assistance of a Turkish speaker already at appointment stage. There is no nationwide system for the provision of interpretation assistance to international protection applicants and beneficiaries”: AIDA, “Country Report: Turkey 2018” (2019), at 72, www.asylumineu rope.org/reports/country/turkey, accessed Feb. 10, 2020. UNHCR, “More than 100,000 refugees vaccinated against cholera in Tanzania,” June 26, 2015. “Illegal Refugees Miss Out on HIV Services,” IRIN News, Apr. 8, 2010. Ibid.; see also S. Pavanello et al., “Hidden and Exposed: Urban Refugees in Nairobi,” Mar. 2010, at 25–26. US, “Living Conditions,” at 51. In response to this problem, a system of home visits by “lady health visitors” was successfully established: D. Wulf, Refugee Women and Reproductive Health Care: Reassessing Priorities (1994), at 41. G. Samari, “The Response to Syrian Refugee Women’s Health Needs in Lebanon, Turkey and Jordan and Recommendations for Improved Practice,” Humanity in Action, 2015; see also T. Karas, “For Refugees in Lebanon, Giving Birth comes at a High Price,” Refugees Deeply, July 7, 2017. T. Karas, “For Refugees in Lebanon, Giving Birth comes at a High Price,” Refugees Deeply, July 7, 2017.

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Access to healthcare also varies considerably for refugee claimants across developed states. Some countries, including France,1860 Italy,1861 and Norway,1862 provide refugees with full access to their national healthcare systems. While Canadian policy was traditionally to provide access to healthcare only once a refugee was found eligible to file a protection claim, it began providing access upon arrival in 2017 due to months-long delays in eligibility interviews.1863 Britain in principle provides healthcare to refugee claimants, but hospitals have at times charged for services from which asylum-seekers should be exempt, and have at times even refused treatment.1864 In Germany, access to public health services is granted mainly for emergencies.1865 Despite the enactment of the Affordable Care Act in the United States, the level of care afforded asylum-seekers is left to the discretion of each state.1866 Nor are 1860

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Forum Réfugiés – Cosi, “Health Care: France,” Asylum Information Database, Apr. 26, 2017; see also European Network to Reduce Vulnerabilities in Health, “Legal Report on Access to Healthcare in 17 Countries,” Nov. 15, 2016, at 40–41. AIDA, “Country Report: Italy 2018” (2019), www.asylumineurope.org/news/16-04-2019/ aida-2018-update-italy, accessed Feb. 20, 2020. European Network to Reduce Vulnerabilities in Health, “Legal Report on Access to Healthcare in 17 Countries,” Nov. 15, 2016, at 101–102. L. Young, “Asylum Seekers get Health-Care Benefits First, Eligibility Questions Later,” Global News, Aug. 23, 2017. M. Bulman, “Thousands of Asylum Seekers and Migrants Wrongly Denied NHS Healthcare,” Independent, Apr. 16, 2017; J. Meikle, “Migrants on the NHS: ‘You’re Targeted because you have an Accent,’” Guardian, Mar. 6, 2016. The confusion appears to stem from the introduction in 2015 of charges for those patients with no leave to remain in the United Kingdom: Immigration Act 2014, s. 38; National Health Service (Charges to Overseas Visitors) Regulations 2015 No. 238, at Regulation 15. Although refugees and asylum-seekers are explicitly exempted from such fees, additional requirements – firstly, that hospitals (rather than the NHS) verify patient eligibility for NHS coverage, and secondly, that ineligible patients pay 150 percent of the estimated cost of treatment upfront – have led to the denial of service to asylum-seekers lacking documentation: see Regulations 2, 3, and 7 of the National Health Service (Charges to Overseas Visitors) Regulations 2015 No. 238, as amended in 2017. For an overview of the effects of these requirements, see Immigration Law Practitioners’ Association, “The National Health Service (Charges to Overseas Visitors) (Amendment) Regulations 2017” (2017); see also D. Gayle, “Rules Allowing Upfront Charges for Foreign Users of NHS Come into Force,” Guardian, Oct. 23, 2017. “The [German] law restricts health care for asylum seekers to instances ‘of acute diseases or pain,’ in which ‘necessary medical or dental treatment has to be provided including medication, bandages and other benefits necessary for convalescence, recovery, or alleviation of disease or necessary services addressing consequences of illnesses.’ The law further contains a special provision for pregnant women and for women who have recently given birth”: AIDA, “Country Report: Germany 2018” (2019), www.asylumineu rope.org/reports/country/germany, accessed Feb. 20, 2020. “US refugee resettlement involves coordination of services between federal agencies, nongovernmental organizations, and local service delivery organizations. As a result of the substantial variability in state social services provided to refugees, resettlement services have been described as a ‘lottery.’ Passage of the Patient Protection and

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refugees in the United States exempted from most effects of the 1996 welfare law reform, under which lawful immigrants have only limited access to health, nutrition, and other public benefits.1867 Economic, Social and Cultural Covenant, Art. 12(1) The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. Art. 12 of the Economic Covenant is not, of course, a right to “be healthy,” in the sense of imposing a duty to eradicate all disease or infirmity.1868 Art. 12 defines a more limited right, consisting of certain immediately applicable freedoms from interference – for example, to non-interference with sexual and reproductive choices, as well as not to be subjected to medical experimentation1869 – and also an affirmative entitlement to a system of health protection which is both of good quality and respectful of cultural and individual

1867

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Affordable Care Act was intended to expand access to comprehensive health insurance among vulnerable populations, particularly through the Medicaid program for eligible adult refugees and health insurance marketplaces (exchanges) for those not eligible for Medicaid. However, implementation of Medicaid expansion and the creation of exchanges have varied markedly between states, resulting in unanticipated gaps in health insurance access among refugees. The substantial variability in insurance premium costs among state-based exchanges has been cited as further impeding access to health care”: P. Agrawal and A. Venkatesh, “Refugee Resettlement Patterns and State-Level Health Care Insurance Access in the United States,” (2016) 106(4) American Journal of Public Health 662, at 662. See also National Conference of State Legislatures, “Immigrant Eligibility for Health Care Programs in the United States,” Oct. 19, 2017; National Conference of State Legislatures, “Chart of Immigrant Eligibility for Federal Programs,” Feb. 24, 2014. William Branigin, “‘Chilling Effects’ seen from Welfare Reform: Caseload Drops Sharper among Immigrants,” Washington Post, Mar. 9, 1999, at A-06. See generally T. Broder et al., “Overview of Immigrant Eligibility for Federal Programs,” Dec. 2015. Refugees are, however, eligible for Medicaid and the Children’s Health Insurance Program. A broader understanding of “health” is endorsed by the World Health Organization: see Saul, ICESCR Commentary, at 978–979. But as the Committee on Economic, Social and Cultural Rights has confirmed, “[i]n drafting article 12 of the Covenant, the Third Committee of the United Nations General Assembly did not adopt the definition of health contained in the preamble to the Constitution of WHO, which conceptualizes health as ‘a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity’”: UN Committee on Economic, Social and Cultural Rights, “General Comment No. 14: The Right to the Highest Attainable Standard of Health” (2000), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [4]. Thus, “while the rightholder’s claim encompasses sufficiency in a host of wider socio-economic determinants of health . . . it is not a claim to assurance of the existential circumstances of being healthy”: Saul, ICESCR Commentary, at 983. UN Committee on Economic, Social and Cultural Rights, “General Comment No. 14: The Right to the Highest Attainable Standard of Health” (2000), UN Doc. HRI/GEN/1/ Rev.7, May 12, 2004, at [8].

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concerns.1870 Art. 12(2) sets out a non-exhaustive list of steps to be taken by states in implementing the affirmative dimensions of the right to health, including the improvement of infant and child healthcare, environmental and industrial hygiene, prevention and control of epidemics and disease, and medical service in the event of sickness.1871 The affirmative element of the right to health is by and large subject to the usual duty of progressive, non-discriminatory implementation. 1872 The Committee on Economic, Social and Cultural Rights has accordingly held that “[t]he notion of ‘the highest attainable standard of health’ in article 12.1 takes into account both the individual’s biological and socio-economic preconditions and a State’s available resources.”1873 State parties with the resources to implement the right to health thus may not lawfully decide simply to refrain from taking the necessary steps fully to implement Art. 12.1874 As a country with a mid-rank 1870

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The elements of availability, accessibility, acceptability, and quality are defined in some detail: ibid. at [12(a)–(d)]. “The non-exhaustive catalogue of examples in article 12.2 provides guidance in defining the action to be taken by States. It gives specific generic examples of measures arising from the broad definition of the right to health contained in article 12.1, thereby illustrating the content of that right”: ibid. at [13]. See Chapter 1.5.4 at note 405 ff. UN Committee on Economic, Social and Cultural Rights, “General Comment No. 14: The Right to the Highest Attainable Standard of Health” (2000), UN Doc. HRI/GEN/1/ Rev.7, May 12, 2004, at [9]. This flexibility has led two commentators to the perhaps overstated conclusion that “the amount a nation can afford to spend on the pursuit of health is what it chooses to spend”: P. Townsend and N. Davidson, “The Black Report: Inequalities in Health” (1982), at 27. In fact, the Committee on Economic, Social and Cultural Rights has made clear that “[t]he central obligation in relation to the Covenant is for States parties to give effect to the rights recognized therein. By requiring Governments to do so ‘by all appropriate means,’ the Covenant adopts a broad and flexible approach which enables the particularities of the legal and administrative systems of each State, as well as other relevant considerations, to be taken into account . . . But this flexibility coexists with the obligation upon each State party to use all the means at its disposal to give effect to the rights recognized in the Covenant”: UN Committee on Economic, Social and Cultural Rights, “General Comment No. 9: The Domestic Application of the Covenant” (1998), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [1]–[2]. Interestingly, in interpreting the right to health found to be embedded in its domestic constitution’s right to life, the Supreme Court of India has found resource constraints to be irrelevant: Kapila Hingorani v. State of Bihar, [2005] InSC 35 (In. SC, Jan. 13, 2005). A somewhat more cautious approach to this issue has been adopted by the Constitutional Court of South Africa: Soobramoney v. Minister of Health of KwaZulu Natal, (1998) 1 SA 765 (SA CC, Nov. 27, 1997). “A State which is unwilling to use the maximum of its available resources for the realization of the right to health is in violation of its obligations under article 12”: UN Committee on Economic, Social and Cultural Rights, “General Comment No. 14: The Right to the Highest Attainable Standard of Health” (2000), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [47].

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economy,1875 Uganda presumptively breached this duty when it provided only one doctor to address the needs of the 16,200 refugees at the Kyaka II camp.1876 Much less is it open to rich states1877 such as Germany to deny refugees access to other than emergency healthcare,1878 nor to the United States to avoid its responsibility to treat healthcare for refugees and others as an essential public service.1879 Indeed, the European Union’s requirement that refugee claimants “receive the necessary health care which shall include, at least, emergency care and essential treatment of illnesses and of serious mental disorders” significantly understates the true extent of state parties’ obligations at international law.1880 Nor may there be discrimination in the design of healthcare systems in a way that sets up barriers for refugees seeking essential medical services. The United Kingdom was thus obliged to take effective remedial steps to ensure that the exemption of refugees from overseas visitor fees for medical care1881 was clearly understood and implemented in practice. In contrast, the long-standing commitment of France, Italy, and Norway fully to enfranchise refugees within their healthcare systems1882 shows real respect for what the Covenant requires, as did Canada’s preparedness to amend its rules to extend healthcare to refugees even before their admission to the status assessment procedure1883 and the decision of Thailand to amend its laws to extend national health services to all persons on its territory, whatever their immigration status.1884 The progressive implementation standard does, of course, provide somewhat greater breathing room for poorer countries. Yet the ability of poorer countries to invoke their economic circumstances to justify failing to provide at least some core healthcare has been significantly circumscribed by the decision of the Committee on Economic, Social and Cultural Rights that “essential primary health care” is one of the four core entitlements set by the 1875

1876

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1878 1880

1881 1884

Uganda ranks eighty-sixth out of 190 states on gross domestic product ranked by reference to purchasing power parity: International Monetary Fund, “Report for Selected Country Groups and Subjects (PPP valuation of country GDP),” May 9, 2018. See text at note 1848. There is moreover a heightened duty to provide for the critical healthcare needs of persons detained by a state: Malawi African Association et al. v. Mauritania, Comm. No. 4/9 (AComHPR, May 11, 2000), at [122]. “For those states whose resources are more abundant . . . the expectations are correspondingly higher”: Saul, ICESCR Commentary, at 999. See text at note 1865. 1879 See text at notes 1866–1867. Directive 2013/33/EU of the European Parliament and of the Council laying down standards for the reception of applicants for international protection (recast), June 26, 2013, at Art. 19(1); affirmed in CK v. Slovenia, Dec. No. C-578/16PPU (CJEU, Feb. 16, 2017), at [70]. See text at note 1864. 1882 See text at notes 1860–1862. 1883 Ibid. See text at note 1845.

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Economic Covenant owed to all persons under a state’s jurisdiction.1885 Under this understanding, the policies in Botswana1886 that denied HIV treatment to refugees and other non-citizens1887 were in breach of obligations under the Covenant. Much less can even dire circumstances justify the approach taken by Lebanon, which reacted to the inability of refugees to pay for services at public hospitals and clinics by confiscating identity papers and detaining children.1888 More generally, core obligations must always be implemented without discrimination.1889 Indeed, the Committee on Economic, Social and Cultural Rights has specifically determined that governments are under an “obligation to respect the right to health by, inter alia, refraining from denying or limiting equal access [to healthcare] for all persons, including . . . asylum-seekers and illegal immigrants.”1890 This duty to provide access to core healthcare services does not, however, require universal free healthcare – meaning that South Africa’s decision to charge refugees a means-based fee for medical services1891 was in principle lawful. But because even the poorest states must respect the duty of non-discrimination in access to healthcare, the more absolutist Jordanian approach – in which refugees, whatever their means, are forced to 1885 1887

1888 1889

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1891

See Chapter 4.4.2 at note 437 ff. 1886 See text at note 1847. The right to essential primary healthcare binds all state parties to “provide essential drugs, as from time to time defined under the WHO Action Program on Essential Drugs”: UN Committee on Economic, Social and Cultural Rights, “General Comment No. 14: The Right to the Highest Attainable Standard of Health” (2000), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [43(d)]. See also UN Committee on Economic, Social and Cultural Rights, “Duties of States towards Refugees and Migrants under the International Covenant on Economic, Social and Cultural Rights,” UN Doc. E/C.12/2017/1, Mar. 13, 2017, at [9]. The right to access new medicines may also be grounded in Art. 15(1)(b) of the Economic Covenant which establishes the right of “everyone” to “enjoy the benefits of scientific progress and its applications”: Economic Covenant, at Art. 15(1)(b). See text at notes 1858–1859. “While the Covenant provides for progressive realization and acknowledges the constraints due to the limits of available resources, it also imposes on States parties various obligations which are of immediate effect. States parties have immediate obligations in relation to the right to health, such as the guarantee that the right will be exercised without discrimination of any kind (art. 2.2) and the obligation to take steps (art. 2.1) towards the full realization of article 12. Such steps must be deliberate, concrete and targeted towards the full realization of the right to health”: UN Committee on Economic, Social and Cultural Rights, “General Comment No. 14: The Right to the Highest Attainable Standard of Health” (2000), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [30]. Importantly, “access can . . . critically be denied through [both] direct and indirect discrimination against particular sectors of society”: Saul, ICESCR Commentary, at 1007. UN Committee on Economic, Social and Cultural Rights, “General Comment No. 14: The Right to the Highest Attainable Standard of Health” (2000), UN Doc. HRI/GEN/1/ Rev.7, May 12, 2004, at [34]. See text at note 1851. The evidence of administrative confusion (see note 1851) in the application of the guidelines, however, suggested that the government may not have fully complied with its responsibility to operationalize the system in a way that complied with its human rights obligations.

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pay the significantly higher “foreigners’ rate” for healthcare unless able to navigate a daunting set of administrative requirements to secure exempting documentation1892 – is in contrast an example of impermissible discrimination, in addition to falling afoul of the Refugee Convention’s duty to exempt refugees from insurmountable administrative requirements.1893 The Committee has also established what amounts to a policy of strict scrutiny of another set of steps, defined as being of “comparable priority” to the non-derogable duties within the core of the duty to provide all with essential primary healthcare. These presumptive duties of immediate implementation include the provision of reproductive, pre-natal, and maternal healthcare; immunization against prevalent diseases; the control of epidemic and endemic diseases; and education and training on the prevention and control of disease and on health and human rights more generally.1894 While a state is not held to an absolute standard of achievement in relation to these rights, non-implementation can be justified only on the basis of a true resource insufficiency.1895 Kenya’s failure to immunize refugees against major polio and measles outbreaks1896 was thus presumptively in breach of the Economic Covenant, as was Lebanon’s prohibition on the establishment of humanitarian field hospitals to meet refugee needs for antenatal and other care even as it made it impossible for impoverished refugees to access public hospitals and clinics.1897 Finally and most generally, the right to health requires all governments to enact and implement a transparent and socially inclusive public health strategy,1898 which must give priority to meeting the needs of vulnerable or 1892 1894

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See text at note 1852. 1893 See Chapter 3.2.3. “The Committee also confirms that the following are obligations of comparable priority: (a) To ensure reproductive, maternal (pre-natal as well as post-natal) and child health care; (b) To provide immunization against the major infectious diseases occurring in the community; (c) To take measures to prevent, treat and control epidemic and endemic diseases; (d) To provide education and access to information concerning the main health problems in the community, including methods of preventing and controlling them; (e) To provide appropriate training for health personnel, including education on health and human rights”: UN Committee on Economic, Social and Cultural Rights, “General Comment No. 14: The Right to the Highest Attainable Standard of Health” (2000), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [44]. “If resource constraints render it impossible for a State to comply fully with its Covenant obligations, it has the burden of justifying that every effort has nevertheless been made to use all available resources at its disposal in order to satisfy, as a matter of priority, the obligations outlined above”: ibid. at [47]. See generally UN Committee on Economic, Social and Cultural Rights, “An Evaluation of the Obligation to Take Steps to the ‘Maximum of Available Resources’ under an Optional Protocol to the Covenant,” UN Doc. E/C.12/2007/1, Sept. 21, 2007, at [8]. See text at note 1850. 1897 See text at notes 1858–1859. “Perhaps the most abiding message . . . is . . . the insistence on what might be called good governance. States must recognize the right to health in their political and legal systems, are required to institute national health care policies of universal application, establish

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marginalized groups.1899 Somalia’s commitment to treating refugees for key post-flight health concerns,1900 Iran’s mobilization of doctors to immunize refugees immediately upon arrival,1901 and Tanzania’s preparedness to time the availability of cholera vaccine administration so that those Muslim refugees observing Ramadan were able to benefit from the program1902 are examples of sound practice that respects the importance of giving priority to meeting the needs of refugees and other marginalized groups. In contrast, Turkey’s unwillingness to provide Syrian refugees with the ability to make medical appointments in Arabic1903 was a policy at odds with this duty to enfranchise the disadvantaged.1904 Perhaps most important, the special duty to enfranchise the marginalized leaves no room to argue that the right to healthcare is respected when little or no attention is given to the specific reproductive and other health needs of women. There was thus a clear duty on Pakistan to make female doctors available to female Afghan refugees who otherwise were culturally barred from any direct access to healthcare.1905 And Kenya’s denial of HIV-related services to urban refugee women engaged in sex work1906 was an especially invidious breach of Art. 12 given the gravity of the risk faced by these extremely marginalized refugees.

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1900 1903 1904

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appropriate institutions to manage and dispense health care, and regulate third-party health providers, especially following privatization or the establishment of public-private partnerships in the sector”: Saul, ICESCR Commentary, at 1001–1002. “[T]hese core obligations include at least the following obligations . . . (f) To adopt and implement a national public health strategy and plan of action, on the basis of epidemiological evidence, addressing the health concerns of the whole population; the strategy and plan of action shall be devised, and periodically reviewed, on the basis of a participatory and transparent process; they shall include methods, such as right to health indicators and benchmarks, by which progress can be closely monitored; the process by which the strategy and plan of action are devised, as well as their content, shall give particular attention to all vulnerable or marginalized groups”: UN Committee on Economic, Social and Cultural Rights, “General Comment No. 14: The Right to the Highest Attainable Standard of Health” (2000), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [43(f)]. See text at note 1844. 1901 See text at note 1846. 1902 See text at note 1854. See text at note 1853. “[A]dequate information should be made available in the languages commonly spoken by migrants in the host country, in order to ensure that such situations do not result in migrants avoiding seeking and obtaining health care”: UN Committee on Economic, Social and Cultural Rights, “Duties of States towards Refugees and Migrants under the International Covenant on Economic, Social and Cultural Rights,” UN Doc. E/C.12/ 2017/1, Mar. 13, 2017, at [12]. See text at note 1857. See text at note 1856. “Sex workers remain subject to stigma and marginalization”: “Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health,” UN Doc. A/HRC/14/20, Apr. 27, 2010, at [27].

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4.5 Property Rights On occasion, refugees may be the victims of confiscation of their property. For example, refugee-specific legislation in Swaziland and Tanzania provides for the discretionary confinement and slaughter of any animal brought into the country by a refugee.1907 The net proceeds, if any, from the sale of the slaughtered animal are to be paid to the refugee if possible, and otherwise used for the support of refugees in general.1908 The laws of both of these countries also provide that any vehicle in which a refugee arrives may be commandeered by authorities to move refugees or stores or equipment for their use. No compensation is payable either for use of the vehicle, or for any consequential damage to it.1909 Several European countries have authorized the seizure of cash and other assets from refugees arriving to seek protection as a means of financing the cost of hosting refugees. Danish law allows the police to search refugees and to confiscate any cash or asset worth more than about $1,500, with the exception of wedding rings and other items of sentimental value.1910 Switzerland seizes only cash.1911 In 1907

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Tanzania, Refugees Act 1998, at Art. 13(1); Swaziland, The Refugees Control Order 1978, at Art. 8(1). Similar laws in Uganda and Zambia were repealed in 2006 and 2017 respectively: see Uganda, Refugee Act 2006, repealing the Control of Alien Refugees Act of 1960; Zambia, The Refugee Act 2017, repealing the Refugees (Control) Act of 1970. Tanzania, Refugees Act 1998, at Art. 13(2)–(3); Swaziland, The Refugees Control Order 1978, at Art. 8(2). This procedure is distinct from the right of authorities to slaughter diseased animals, in which case no compensation is payable to the refugee: Tanzania, Refugees Act 1998, at Art. 13(4). Tanzania, Refugees Act 1998, at Art. 14; Swaziland, The Refugees Control Order 1978, at Art. 9. See Danish Aliens Act, as amended by Act No. 102 of Feb. 3, 2016. Even prior to the enactment of the “Jewelry Law,” the Aliens Act “stated that asylum seekers could be required to contribute to expenses associated with their stay. The law, however, only allowed asylum seekers to be charged for 90 days and . . . was never enforced. Danish police also had the power to search asylum seekers, in order to find items or documents that could be of importance when processing asylum claims. But Danish police were not allowed to confiscate valuables during such searches. The recent amendment to the law has bestowed this power upon the police and removed existing time limitations. The new and controversial feature of the Danish Aliens Act, therefore, is not that asylum seekers can be asked to contribute to the expenses associated with their stay in Denmark, or that they can be searched. Rather, the recent amendment gives the police the power to search asylum seekers with the aim of confiscating property”: J. Hartmann and N. Tan, “The Danish Law on Seizing Asylum Seekers’ Assets,” EJIL Talk!, Jan. 27, 2016. The law permits the seizure of cash “over 10,000 kroner (€1,340, $1,450) as well as any individual items valued at more than that amount, such as watches, mobile phones and computers”; exempted are wedding rings and other items of sentimental value, as well as savings and funds in bank accounts: J. Coleman, “Migrant Crisis: Why are Countries Taking Refugees’ Valuables?,” BBC, Jan. 26, 2016. “Swiss legislation requires asylum seekers who enter the country with more than 1,000 Swiss francs [to] report and hand over the surplus to the Swiss authorities. The rule only covers money, not other valuables such as personal jewellery. Of the 45,000 asylum seekers coming

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both the Netherlands1912 and Switzerland1913 a deduction is subtracted directly from refugee wages to offset the cost of their reception while seeking asylum. Tanzania requires that refugees who repatriate or otherwise permanently leave the country surrender all personal property to the government for compensation.1914 While confiscation of the personal property of refugees is not widespread, refugees may still face restrictions on their ability to acquire and deal with personal property while in asylum states by virtue of general limitations on the acquisition of personal property applied to all foreigners. In the United States, for example, non-citizens may not own atomic energy facilities1915 and may not acquire federal mineral rights.1916

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to Switzerland in 2015, only 112 had to hand in a surplus, totalling around €150,000 that year”: K. Groenendijk and S. Peers, “Can Member States Seize Asylum-Seekers’ Assets?” EU Law Analysis, Jan. 24, 2016; see also “Migrant Crisis: Switzerland Defends Asset Seizure Law,” BBC, Jan. 15, 2016. According to a spokeswoman for the Swiss state secretariat for migration, refugees who leave voluntarily within seven months may reclaim seized assets. “Otherwise the money covers costs they [refugees] generate”: “Switzerland Seizing Assets from Refugees to Cover Costs,” Guardian, Jan. 15, 2016. Unlike Denmark’s law, which authorizes officials to search refugees, the Swiss legislation permits confiscation only of items that have been declared: K. Reilly, “Switzerland Criticized for Law Allowing Refugees’ Money and Valuables to be Seized,” Time, Jan. 16, 2016. “The Regulation for Personal Contributions by Asylum Seekers allows the state to charge asylum seekers for their food and living costs – €196 a month – if they earn more than €185 a week . . . Most of the money was reclaimed from the income of working refugees . . . Asylum seekers are allowed to work for up to 24 weeks a year once they have been in the country longer than six months”: “Dutch Charged Asylum Seekers €700,000 in Four Years for Living Expenses,” DutchNews.nl, Jan. 25, 2016. In addition, “[a]sylum seekers are also required to declare any savings or valuables they bring into the country to the COA, the organisation that runs Dutch refugee centres. Deductions can be made if the holdings amount to more than €5,895 for an individual or €11,790 for a family. Personal possessions are included, though exceptions are made for items such as computers, mobile phones and wedding rings”: G. Darroch, “Netherlands Claimed more than £500,000 from Refugees in Four Years,” Guardian, Jan. 25, 2016. Under Swiss law, for example, “beneficiaries of protection with income from employment have to pay 10% of that income” over the course of a ten-year period: K. Groenendijk and S. Peers, “Can Member States Seize Asylum-Seekers’ Assets?” EU Law Analysis, Jan. 24, 2016. “Any movable property or immovable property belonging to any asylum seeker or refugee who leaves the country permanently or on voluntary repatriation at the time of his departure shall be left to be disposed off lawfully and be deemed to be left under the safe custody and control of the Director and the Government shall pay fair and adequate compensation to the owner of the property prior to the time of his departure”: Tanzania, Refugees Act 1998, at Art. 34(3). “No license may be issued to an alien or any corporation or other entity if the [Atomic Energy] Commission knows or has reason to believe it is owned, controlled, or dominated by an alien”: 42 USC § 2133(d). This prohibition applies even in the case of noncitizens seeking an atomic energy license for medical therapy purposes: 42 USC § 2134(d). “Except as otherwise provided, all valuable mineral deposits in lands belonging to the United States . . . shall be free and open to exploration and purchase, and the lands in

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Land ownership and tenure is undoubtedly the most sensitive area of all. In rare cases, refugees may be subject to general rules that deny everyone the right to own land: in Nigeria, for example, ownership of all land is vested in each state’s governor, who issues certificates of occupancy for the right to occupy plots for defined periods of time.1917 More commonly, refugees are disfranchised under rules that prohibit non-citizens from owning land – as is the law in Kenya1918 and Thailand.1919 In South Africa, the bar on purchasing land specifically targets undocumented migrants.1920 In Singapore, non-citizens are barred from buying land until they have resided in the country for at least five years.1921 Even if not denied the ability to buy land, refugees and other non-citizens may still be subject to special restrictions or limitations. In Mexico, for example, foreigners are not allowed to buy land in border regions or on the sea coast,1922 while in Lebanon1923 it is unlawful to sell land to a non-citizen without specific

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which they are found to occupation and purchase, by citizens of the United States and those who have declared their intention to become such”: 30 USC § 22. O. Adebimpe, “Property Rights in Nigeria; an Untapped Tool for Economic Growth,” Sept. 15, 2017; see also T. Ogunlesi, “Africa Check Factsheet: Who Owns the Land in Nigeria,?” Nov. 23, 2015. In Kenya, “land is not granted to foreigners irrespective of status because of the sensitivity of the land issue”: “Implementation of the OAU/UN Conventions and Domestic Legislation Concerning the Rights and Obligations of Refugees in Africa,” Final Report of a Conference sponsored by the Refugee Studies Programme, Oxford University, Sept. 14–28, 1986, at 33. Under Kenya’s 2010 Constitution, “[a] person who is not a citizen may hold land on the basis of leasehold tenure only, and any such lease, however granted, shall not exceed ninety-nine years”: Art. 65(1). Although the Land Code Act B.E. 2497 (1954) prohibits aliens from acquiring land ownership, individual foreigners can acquire property of up to 1 rai (1,600 square meters) in particular areas for residential purposes subject to their fulfillment of a 40-million baht investment requirement in specified assets or government bonds beneficial to the Thai community: Land Code Amendment Act 1999 (No. 8), s. 96 bis. Smith Tabata Buchanan Boyes, “Buying Property in South Africa as a Resident or Nonresident,” 2015/2016, at 14, www.stbb.co.za/wp-content/uploads/2014/09/BuyingProperty-in-South-Africa-as-a-resident-or-non-resident.pdf, accessed Feb. 15, 2020. Singapore Land Authority, “Foreign Ownership of Properties,” www.sla.gov.sg/propertyboundary-n-ownership/foreign-ownership-of-property, accessed Feb. 15, 2020. But noncitizens may purchase condominium units and other non-landed property without government approval: ibid. The Mexican constitution establishes that “in a zone of 100 km along the border or 50 km along the coast, a foreigner cannot acquire direct domain of the land and waters”: Mexico Constitution, 1917, at Art. 27. Although an amendment proposed in 2013 would have permitted aliens to acquire direct title in the prohibited zones, the bill stalled in the Senate: A. López Cruzado, “Foreign Buyers Face Familiar Restrictions in Mexico,” May 22, 2015; see also D. Dehler, “Buying Property in Mexico’s ‘Restricted Zone’: The Missed Opportunity that was the 2013 Beltrones Proposal to Amend Article 27 of the Mexican Constitution,” (2015) 32(1) Arizona Journal of International and Comparative Law 309, at 328–330. “No person of non-Lebanese origin and no person considered by the law as a foreigner may acquire real property rights through contract or any legal action between living

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approval from the government. Namibia prohibits the sale of agricultural land to non-citizens,1924 while New Zealand allows foreign investment in farmland of over five hectares only if it can be proved to result in “substantial and identifiable” benefits to New Zealand.1925 Refugees may face difficulties even in leasing land. Officials in both Honduras and Mexico, for example, often prevented refugees from renting land during the late 1980s.1926 In Ghana, the security of land tenure for noncitizens is limited to fifty years, and refugees have faced threats of evictions from landowners.1927 Other African countries have limited the maximum plot size allocated to refugees to an economically unviable size1928 or conditioned access to land on agreement to grow particular crops.1929 Discrimination

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people except after receiving a permit given by a Decree issued by the Council of Ministers upon the proposal of the Minister of Finance. No one shall be exempt from this law unless it is clearly written in this law or any other text”: Law No. 296/2001, at Art. 1(1) (unofficial translation cited in “Palestinian refugees’ right to inherit under the 2001 amendment law – Beirut test case,” Norwegian Refugee Council and Information, Counselling and Legal Assistance Programme, Jan. 2016, at 1 n. 2). “The amendment was interpreted to specifically prohibit Palestinian refugees in Lebanon from acquiring real estate property rights . . . as they may be considered as a group of people who do not hold citizenship issued by a ‘recognised’ state, and/or their acquisition to real rights may lead to permanent settlement (Tawteen)”: “Palestinian Refugees’ Right to Inherit under the 2001 Amendment Law – Beirut Test Case,” Norwegian Refugee Council and Information, Counselling and Legal Assistance Programme, Jan. 2016, at 1. “The person who sold or otherwise disposed of that agricultural land to the foreign national or nominee owner shall . . . be guilty of an offence and be liable on conviction to a fine not exceeding N$100,000 or to imprisonment for a term not exceeding five years or to both”: Namibia, Agricultural (Commercial) Land Reform Act 6 of 1995, at Art. 60A(1)(b). Although the National Assembly tabled an amendment in 2016 that would have forced foreigners desiring to sell their property to first offer it to a local authority or Namibian citizen, the amendment was ultimately withdrawn: S. Immanuel, “Namibia: Property Ban for Foreigners,” Namibian, Nov. 6, 2015; see also W. Werner, “The 2016 Land Bill: Making Law without Consultation and Policy Review,” Democracy Report, Special Briefing Report No. 16, Feb. 2017, at 1–2, 12–13. Land Information New Zealand, “Benefit to New Zealand Test,” www.linz.govt.nz/ overseas-investment/applying-for-consent-purchase-new-zealand-assets/preparingyour-application-oio/benefit-new-zealand-test, accessed Feb. 15, 2020. See also “NZ Orders Regulator to Scrutinise Foreign Investment in Farms, Forests,” Reuters, Nov. 28, 2017. Keen, Right to Life, at 56. “[T]he Constitution categorically barred foreigners from any freehold interest in land or any lease greater than 50 years. Nevertheless, several legal residents leased land for 99year periods. In Buduburam, some refugees leased property from Ghanaians on build, operate, and transfer agreements. At the end of their timeshare, some landowners threatened to evict them”: US Committee for Refugees and Immigrants, World Refugee Survey 2007: Ghana (2007). Keen, Right to Life, at 56. “[I]n the Sudan’s New Halfa scheme . . . tenancies were distributed to the newcomers to grow compulsory crops of cotton, wheat and ground-nuts. Lack of control over their allocated

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against refugees seeking to lease property also occurs in urban settings. Landlords in Germany,1930 Ireland,1931 and Pakistan1932 have embraced discriminatory rental policies to avoid renting to refugees and other foreigners.

4.5.1 Movable and Immovable Property Rights Refugee Convention, Art. 13 Movable and Immovable Property The Contracting States shall accord to a refugee treatment as favourable as possible and, in any event, not less favourable than that accorded to aliens generally in the same circumstances, as regards the acquisition of movable and immovable property and other rights pertaining thereto, and to leases and other contracts relating to movable and immovable property. The human right to own and to possess property enjoys a tenuous place in international law.1933 It is usually said that the failure to codify a clear right to property was the result of a capitalist–socialist philosophical divide at the time international human rights law was developed,1934 with the right to property

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farms discourages settlers from fully committing themselves to agricultural production”: V. Lassailly-Jacob, “Government-Sponsored Agricultural Schemes for Involuntary Migrants in Africa: Some Key Obstacles to Their Economic Viability,” in H. Adelman and J. Sorenson eds., African Refugees: Development Aid and Repatriation 209 (1994), at 217. D. Heinrich, “Foreigners Not Welcome: Racism in Germany’s Housing Market,” Deutsche Welle, Nov. 13, 2013. K. Holland, “Refugees Face Discrimination from Landlords,” Irish Times, Mar. 1, 2004; see also M. Hilliard, “Discrimination in Renting Most Common Rights Issue Raised,” Irish Times, June 29, 2017. “Numerous Afghans said landlords evicted them from, or refused to rent, apartments or business premises after the Pakistani authorities announced in newspapers and on television that it was illegal to rent to Afghans. Others said that beginning in July [2016], landlords started doubling or tripling their rent, thereby forcing them out of their homes and businesses and leaving them destitute”: Human Rights Watch, “Pakistan Coercion, UN Complicity: The Mass Forced Return of Afghan Refugees,” Feb. 2017, at 26–27. “International lawyers, including human rights advocates, are ambivalent and sometimes hostile about recognizing a ‘human right’ to property protection”: J. Alvarez, “The Human Right of Property,” (2018) 72 University of Miami Law Review 580 (Alvarez, “Human Right of Property”), at 584. See e.g. C. Krause, “The Right to Property,” in A. Eide et al. eds, Economic, Social and Cultural Rights: A Textbook 191 (2001) (Krause, “Right to Property”), at 192–193: “Many Western countries, with the United States in the forefront, have tended to proclaim a strong protection of the right to property, whereas the socialist countries and the Third World countries have emphasized the social function of property, allowing for interference with property rights in the name of public interest . . . In spite of the decreasing ideological and political tensions concerning property rights, the protection of property rights will remain a matter of controversy . . . Property rights are closely connected with the social and economic policies of States and thus there will always be a certain amount of reluctance towards international supervision of these rights.”

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championed predominantly by Western countries.1935 It is also certainly true that the status of property rights remains highly contested even today in much of the less developed world. As Gudmundur Alfredsson has observed, Property rights have been criticized as standing in the way of progress: from the owning of slaves to the exploitation of others through apartheid and transnational corporations. The importance of property rights is often deemed to pale against the background of other problems, such as hunger, poverty and misery . . . The overall concentration of most of the world’s property in the hands of a comparative few, especially in times of population growth and scarcity of resources, makes property rights seem more part of the problem than an interest entitled to protection.1936

Indeed, when the assets of just eight men exceed those of half of the world’s population,1937 it is difficult to question this deep-seated skepticism about the value of private property rights. Most countries nonetheless do have some form of property right in their domestic constitution.1938 Property rights are also established by each of the three regional human rights regimes – though not in a particularly robust way.1939 The European Convention on Human Rights and Fundamental 1935

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See A. Rosas, “Property Rights,” in A. Rosas and J. Helgesen, The Strength of Diversity: Human Rights and Pluralist Democracy 133 (1992), at 146. “The Constitution and basic laws of most if not all Western countries have long guaranteed the right to property. This right is part and parcel of their very form of government”: G. Alfredsson, “Article 17,” in A. Eide et al. eds., The Universal Declaration of Human Rights: A Commentary 255 (1992) (Alfredsson, “Article 17”), at 255. Alfredsson, “Article 17,” at 260. Oxfam, “An Economy for the 99%,” Jan. 2017, at 1. “If the realization of property rights only entails a right to own property and a protection against arbitrary interference in these existing property rights, it is difficult, at least morally to justify the right to property”: Krause, “Right to Property,” at 209. As of 2013, 85 percent of states constitutionally protect property rights in some form: Z. Elkins et al., “Imagining a World Without the Universal Declaration of Human Rights” (2014), at Table A1, papers.ssrn.com/sol3/papers.cfm?abstract_id=2469194, accessed Feb. 15, 2020. Yet “[t]he absence of a definition of the concept of property in international conventions is not surprising, as the exact content of property varies in different legal systems”: Krause, “Right to Property,” at 198. This reticence stands in stark contrast to Locke’s classic notion that the advancement of property rights is at the core of a state’s responsibility. “The great and chief end . . . of men’s uniting into commonwealths, and putting themselves under government, is the preservation of their property; to which in the state of nature there are many things wanting . . . The reason why men enter into society, is the preservation of their property; and the end why they choose and authorize a legislative, is, that there may be laws made, and rules set, as guards and fences to the properties of all the members of the society, to limit the power, and to moderate the dominion, of every part and member of the society: for since it can never be supposed to be the will of the society, that the legislative should have the power to destroy that which every one desires to secure, by entering into society, and for which the people submitted themselves to the legislators of their own making”:

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Freedoms, for example, did not originally speak to property rights at all.1940 When ultimately enacted as part of Protocol No. 1 to the European Convention, the right to property was meekly framed as a right of “[e]very natural or legal person . . . to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions of international law.”1941 And even this minimal right to peaceful enjoyment of property can be trumped by “the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest.”1942 Art. 21 of the American Convention on Human Rights similarly protects only “the use and enjoyment of . . . property,” though it adds explicit protection from confiscation without compensation; as in Europe, however, “[t]he law may subordinate such use and enjoyment to the interest of society.”1943 The African regional human rights convention is perhaps the most vague of all, providing only that “[t]he right to property shall be guaranteed,” though in line with its European and American counterparts, the right to property may be “encroached upon in the interest of public need or in the general interest of the community and in accordance with the provisions of appropriate laws.”1944 In their interpretation of these norms, moreover, regional human rights courts have failed to “produc[e] harmonious property rights jurisprudence, and those courts’ respective case law cannot be

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J. Locke, The Second Treatise on Civil Government and a Letter Concerning Toleration (1690), at ss. 124, 222. Krause notes that “[t]he right to property was included in the draft text passed by the Consultative Assembly. However, the Committee of Ministers felt . . . that the inclusion of the right to property would delay the entering into force of the Convention”: Krause, “Right to Property,” at 195, n. 14. Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms, done Mar. 20, 1952, incorporated in the European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 UNTS 221 (UNTS 2889), done Nov. 4, 1950, entered into force Sept. 3, 1953 (ECHR Protocol No. 1), at Art. 1. As elaborated in the case law of the European Court of Human Rights, however, the notion of “possessions” includes the full range of property interests, and the right of peaceful enjoyment has been held to constrain even de facto expropriation: Krause, “Right to Property,” at 198–200. ECHR Protocol No. 1, at Art. 1(2). American Convention on Human Rights, 1144 UNTS 123 (UNTS 17955), entered into force July 18, 1978, at Art. 21. As interpreted by the Inter-American Court, “undefined ‘property’ given protection under Article 21 has been seen as extending to ‘sacred’ lands farmed (but not formally owned) by identified indigenous peoples, some forms of intellectual property, certain rights held by corporate shareholders, tangible assets seized from individuals in the course of law enforcement and civil forfeiture, and forms of ‘acquired rights’ established under national laws (such as pensions)”: Alvarez, “Human Right of Property,” at 645. African Charter on Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3 rev. 5, entered into force Oct. 21, 1986, at Art. 14.

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presumed to indicate the parameters of ‘the international law of property’ applicable to the world.”1945 The only general and universal formulation of the right to property1946 is found in Art. 17 of the non-binding Universal Declaration of Human Rights, which proclaims a right both to own property individually and collectively, and to be protected against the arbitrary deprivation of property1947 – a formulation referred to by one commentator as “purposely vague.”1948 In contrast to regional norms, this one general and universal standard does not specifically require undisturbed enjoyment of property. Nor does it take a position on the historically contentious issue of the standard of compensation that must be paid in the event of confiscation.1949 Indeed, in part because agreement could not be reached on these more specific concerns that would have to be addressed before the right to property could be made legally enforceable, the right to property was one of only two standards1950 in the Universal Declaration that failed to attract support for codification as a binding legal standard in either of the two Covenants on Human Rights.1951 Nor has the end of the Cold War resolved these tensions. The centrality of property to each state’s understanding of its basic political and social values1952 continues to make it exceedingly difficult to arrive at a universally binding 1945 1946

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Alvarez, “Human Right of Property,” at 649. Alvarez has, however, identified thirty-five international instruments that speak to property rights in some fashion: ibid. at 690ff. “But apart from these discrete regimes, attention to property rights as part of international human rights law lags”: ibid. at 587. “Everyone has the right to own property alone as well as in association with others. No one shall be arbitrarily deprived of his property”: Universal Declaration, at Art. 17. Alvarez, “Human Right of Property,” at 584. The essential difference of view has been between those (mostly capitalist) states which assert the right to “prompt, adequate and effective compensation,” and the preference of other (mostly developing) countries for a less rigorous standard of compensation. See generally R. Higgins, “The Taking of Property by the State,” (1982) 176 Recueil des Cours 259. The other right that was not made binding is the right to be protected against unemployment, found in Art. 23 of the Universal Declaration of Human Rights. “Notwithstanding several proposals, no such article was adopted. In lengthy debates there was disagreement on practically every aspect of the topic . . . including such issues as the scope of property, conformity with State laws, expropriation and other allowable limitations, due process of law, compensation and indeed the very inclusion of the right”: Alfredsson, “Article 17,” at 259. “The importance of the concept of property goes far beyond the legal sphere, as it constitutes the basic factor in the prevailing economic system within a specific society and the most fundamental variable of its social order. Its links with the political programme accepted within that society are therefore manifest. Furthermore, its philosophical and ethical implications are obvious”: “The right of everyone to own property alone as well as in association with others, completed final report submitted by Mr. Luis Valencia Rodríguez, Independent Expert, to the United Nations Commission on Human Rights,” UN Doc. E/CN.4/1994/19, Nov. 25, 1993, at [63].

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standard acceptable to all. The jurisprudence of the Human Rights Committee has thus confirmed that property rights are not a specifically protected interest under the Civil and Political Covenant,1953 and an initiative in the Commission on Human Rights to promote property rights within a socioeconomic context1954 did not result in any new normative consensus.1955 Despite this absence of global agreement on the value of a right to property as such, international human rights treaties do require respect for the principle of non-discrimination in relation to whatever property rights may be enacted by a given state.1956 This general guarantee of non-discrimination can, in 1953

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“The right to property . . . is not protected by the International Covenant on Civil and Political Rights”: OJ v. Finland, HRC Comm. No. 419/1990, UN Doc. CCPR/C/40/D/419/ 1990, decided Nov. 6, 1990, at [3.2]. Property rights may, however, be indirectly protected by virtue of the duty of non-discrimination: see Chapter 1.5.5. The Commission on Human Rights advocated treating property rights as an issue of the realization in all countries of economic, social, and cultural rights, in line with General Assembly resolution 45/98 of December 1991: “The right of everyone to own property alone as well as in association with others, completed final report submitted by Mr. Luis Valencia Rodríguez, Independent Expert, to the United Nations Commission on Human Rights,” UN Doc. E/CN.4/1994/19, Nov. 25, 1993, at [98]. In response to the final report submitted by the independent expert (see note 1954), the Commission on Human Rights “[r]ecommend[ed] that all relevant United Nations bodies take into consideration the recommendations of the independent expert . . . and [c]onclude[d] its consideration of this matter”: UN Doc. E/CN.4/1994/19, Nov. 25, 1993, at [4]–[5]. This may not be a surprising result, since “the human right of property . . . will remain a viable proposition . . . only to the extent that it remains subject to distinct contextualized interpretations in international regimes and diverse international adjudicative forums”: Alvarez, “Human Right of Property,” at 588. “The non-regional human rights treaties . . . encompass only non-discrimination guarantees with respect to property”: Alvarez, “Human Right of Property,” at 650. See Convention on the Elimination of All Forms of Discrimination Against Women, 1249 UNTS 13 (UNTS 20378), adopted Dec. 18, 1979, entered into force Sept. 3, 1981 (Discrimination Against Women Convention), at Art. 16; International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, 2220 UNTS 3 (UNTS 39481), UN Doc. A/45/49 (1990), adopted Dec. 18, 1990, entered into force July 1, 2003, at Art. 15. Of the several non-discrimination standards, the guarantee in the Racial Discrimination Convention, in which “the right to own property alone as well in association with others” and “the right to inherit” are both subject to a guarantee of non-discrimination on the basis of “national or ethnic origin,” is potentially of greatest relevance to the whole refugee class, so long as the state of asylum is a party to that agreement: Racial Discrimination Convention, at Arts. 1(1) and 5(d)(v). In the context of refugee repatriation, the Committee on the Elimination of Racial Discrimination has relied on Art. 5 in order to reach the conclusion that “refugees . . . have, after their return to their homes of origin, the right to be restored to them property of which they were deprived in the course of the conflict and to be compensated for any such property that cannot be restored to them. Any commitments or statements relating to such property made under duress are null and void”: UN Committee on the Elimination of Racial Discrimination, “General Recommendation No. XXII: Refugees and Displaced Persons” (1996), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [2(c)].

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practice, be an important means to contest the legal validity of restrictions on property rights imposed on aliens generally, or on refugees specifically. Of particular importance, Art. 26 of the Civil and Political Covenant governs the allocation of all rights, and prohibits discrimination on the basis of both “national origin” and “other status.”1957 As interpreted by the Human Rights Committee, Art. 26 presumes the illegitimacy of any rights allocation made on the basis of any form of status, specifically understood to include alien status.1958 As such, legal distinctions between citizens and non-citizens must be justifiable on the basis of real differences of capability or potentiality to pass muster under the Covenant’s guarantee of equal protection of the law. Under this framework, while some exclusions on property ownership by aliens may be deemed “reasonable” under international law,1959 others will not. A case might be made that Mexican restrictions on alien property ownership along its borders,1960 the US bar on non-citizen purchases of atomic energy facilities,1961 and perhaps even South Africa’s bar on land purchase by the subset of non-citizens who are illegally present in that country1962 (assuming, of course, that persons claiming asylum are properly understood to be lawfully present)1963 are reasonable measures taken in support of national security.1964 The preservation of agricultural land is similarly likely to be thought a reasonable limitation given a state’s duty to ensure food security,1965 though the case is less solid for upholding Namibia’s sweeping duty to seek ministerial approval for any sale of farmland to a non-citizen1966 than for New Zealand’s more narrowly tailored restriction on non-citizen ownership of agricultural land.1967 On the other hand, the sort of absolute denial to non-citizens of broadly framed property rights found in Kenya1968 and Thailand1969 is unlikely to be found justifiable. Even less far-reaching prohibitions, such as the decision of Lebanon to require government authorization for any purchase of real property by a non-citizen,1970 Singapore’s withholding of real property purchase rights from any non-citizen who has not resided there for at least five years,1971 and the US refusal to hold federal mineral rights1972 seem difficult to justify as 1957 1960 1963 1964

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See Chapter 1.5.5 at note 453 ff. 1958 Ibid. at note 462. 1959 Ibid. at note 467 ff. See text at note 1922. 1961 See text at note 1915. 1962 See text at note 1920. See Chapter 3.1.3. The IRO was prepared to recognize that “special regulations excluding aliens, based on security considerations, e.g. [from] property in frontier or strategic areas” were reasonable: Comments of the International Refugee Organization, UN Doc. E/AC.32/L.40, Aug. 10, 1940, at 40. The drafters of the Refugee Convention did not, however, choose to restrict the scope of property rights on the basis of such considerations, opting instead to guarantee refugees whatever property rights are granted to “aliens generally in the same circumstances.” See Chapter 4.4.2, note 1737. 1966 See text at note 1924. 1967 See text at note 1925. See text at note 1918. 1969 See text at note 1919. 1970 See text at note 1923. See text at note 1921. 1972 See text at note 1916.

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reasonable limitations on the duty not to discriminate on grounds of alien status. The denial of some key property rights to refugees may therefore be most effectively challenged on the grounds of unreasonable differentiation in relation to the generic class of non-citizens. Beyond international human rights law’s general protection of non-citizens against discrimination in relation to property rights, the Refugee Convention adds net value in at least three ways. First, Art. 13 – which applies to all refugees under a state’s jurisdiction, even if not in its territory1973 – makes clear that any property rights deprivation that targets refugees specifically is unlawful. Because refugees must receive property rights that are at least as good as those afforded aliens generally, any deprivation of property rights that sets refugees apart from other non-citizens is presumptively in breach. Art. 13 moreover makes clear that this prohibition of refugee-specific denials of “property”

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One of the real strengths of Art. 13 is that it is a right that inheres in all refugees, even those not physically present in a state’s territory. Perhaps because the primary goal of withholding certain rights for citizens and most-favored foreigners was met by the use of the low contingent standard for property rights, the initial limitations on the scope of the beneficiary class by reference to level of attachment fell by the wayside, with the Ad Hoc Committee’s Working Group recommending the extension of property rights to “a refugee” without qualification: “Decisions of the Working Group Taken on 9 February 1950,” UN Doc. E/AC.32/L.32, Feb. 9, 1950, at 5, adopted by the Ad Hoc Committee at UN Doc. E/AC.32/SR.25, Feb. 10, 1950, at 5. In the result, the benefits of Art. 13 can now be invoked by any refugee under a state’s authority, including those not yet formally recognized as refugees: see Chapter 3.1.1. Indeed, no objection was voiced to the conclusion of the Chairman of the Ad Hoc Committee that Art. 13 “make[s] no distinction between refugees in countries adhering to the Convention and refugees resident elsewhere . . . [S]ome countries whose laws imposed restrictions on the property rights of aliens might feel some apprehension that article [13] would give the same rights to refugees living in other countries as to aliens living in the country where the property was”: Statement of the Chairman, Mr. Larsen of Denmark, UN Doc. E/AC.32/SR.36, Aug. 15, 1950, at 19–20. The only recorded response was the affirmation of the British representative that “[a] refugee abroad would presumably receive the same treatment as an alien abroad” (Statement of Sir Leslie Brass of the United Kingdom, ibid. at 20). Thus, non-resident refugees are entitled to the same protection of property rights as is afforded comparably situated non-resident aliens. See Robinson, History, at 105: “Article 13 does not contain a requirement of domicile or residence for the enjoyment of the rights conferred by it on refugees. In other words, it applies to refugees regardless of whether they have their domicile or residence in the country in which they wish to acquire property or elsewhere”; and Weis, Travaux, at 116: “The provision applies to all refugees, whether resident in the territory of the Contracting State or not.” The notion of “‘in the same circumstances’ implies that any requirements (including requirements as to length and conditions of sojourn or residence) which the particular individual would have to fulfil for the enjoyment of the right in question, if he were not a refugee, must be fulfilled by him, with the exception of requirements which by their nature a refugee is incapable of fulfilling”: Refugee Convention, at Art. 6. See generally Chapter 3.2.3.

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rights is quite broad-ranging.1974 The text of Art. 13 specifically addresses the right to acquire both movable (personal) and immovable (real) property, including acquisition by lease.1975 Specific reference was made during the drafting debates to the importance of enabling refugees to purchase securities (stocks)1976 and land,1977 to acquire a home,1978 and to lease premises for accommodation or in which to carry on a business.1979 Robinson and Weis logically add that Art. 13 encompasses the right to hold money, and to establish bank accounts.1980 1974

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A broad reading of the scope of “property” is consistent with (though not expressly codified in) the general approach in international human rights law. “The absence of a definition of the concept of property in international conventions is not surprising, as the exact content of property varies in different legal systems. None of the conventions limit the protection of property to any particular kind of property. In practice, the Strasbourg organs have given ‘possessions’ under Protocol No. 1 to the [European Convention on Human Rights and Fundamental Freedoms] a wide interpretation and held that it covers both immovable and movable property, including immaterial rights, such as contractual rights with economic value, various economic interests, goodwill, as well as still pending compensation claims against the state provided that there is a legitimate expectation for the claims to be decided in the applicant’s favour”: Krause, “The Right to Property,” at 198–199. In view of the fact that Art. 17 of the Universal Declaration of Human Rights had been approved by the General Assembly just over one year before the preparation of the Secretary-General’s draft of the Refugee Convention, it is surprising that no express reference is made in the Refugee Convention to the right of property “ownership.” While the focus on the right to “acquire” property in the Refugee Convention might be argued to exclude protection of rights of ownership in property brought into the asylum country, the express language of Art. 30 (which permits refugees to transfer “assets which they have brought into [the asylum country’s] territory”) must negate that interpretation. In the result, the right to acquire property “and other rights pertaining thereto” should be understood in context to include protection of the rights of ownership in all property brought into, and acquired within, the asylum state. This position is endorsed in S. Leckie and E. Simperingham, “Article 13,” in A. Zimmermann ed., The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary 883 (2011), at 891. Secretary-General, “Memorandum,” at 26. Statement of Sir Leslie Brass of the United Kingdom, UN Doc. E/AC.32/SR.36, Aug. 15, 1950, at 13. In response to an American proposal to insert a new right of refugees to “housing accommodation,” the Chairman of the Ad Hoc Committee advised that in the view of the Secretariat “the provisionally adopted article [13] might be considered to cover the question in a certain sense”: Statement of the Chairman, Mr. Chance of Canada, UN Doc. E/AC.32/SR.15, Jan. 27, 1950, at 11. The representative of the United States “replied that article [13] dealt with the rights of refugees regarding immovable property and leases,” leading him to constrain the scope of what became Art. 21 to “social welfare matters taken by States with a view to providing housing accommodation for certain categories of persons”: Statement of Mr. Henkin of the United States, ibid. See generally Chapter 6.4 with respect to the latter issue. Secretary-General, “Memorandum,” at 26. Robinson, History, at 106; Weis, Travaux, at 116.

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As such, the refusal of Honduran1981 and Mexican1982 officials to allow refugees to rent land was in violation of Art. 13, as are the refugee-specific prohibitions on the leasing of plots of an economically viable size found in parts of Africa.1983 So too would be any discrimination against refugees in the administration of the Nigerian system under which all ownership of land is vested in the state with only certificates of occupancy issued to particular persons.1984 The Pakistani government’s announcement that it was illegal to rent to refugees – leading many landlords to evict refugees1985 – was also clearly in breach of Art. 13. And because Art. 13 obliges states “to accord” – that is, not simply to promise, but to deliver – refugees the stipulated property rights, the failures of Germany1986 and Ireland1987 to take effective steps to confront the refusal of private landlords to rent to refugees were also arguably at odds with the duty set by Art. 13. Indeed, Art. 13 of the Refugee Convention not only protects the right to acquire all forms of property, but also prohibits refugee-specific discrimination in regard to “other rights pertaining thereto,” specifically including related contractual interests. Robinson elaborates this notion by suggesting that such related activities as “sale, exchange, mortgaging, pawning, administration, [and] income”1988 are protected interests. Another example of “rights pertaining” to property mentioned during the drafting debates is the ability of refugees to benefit from rent controls.1989 Logically, then, the practice of some host states to impose a refugee-specific requirement that only certain crops may be grown on rented land1990 infringes this component of Art. 13. A second value-add of Art. 13 is that it is not simply a duty to enfranchise refugees within the ranks of other non-citizens. The actual duty under Art. 13 is rather to accord to a refugee “treatment as favourable as possible,” though in no case less favorable than that afforded aliens generally.1991 As noted 1981 1984 1987 1989

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See text at note 1926. 1982 Ibid. 1983 See text at note 1928. See text at note 1917. 1985 See text at note 1932. 1986 See text at note 1930. See text at note 1931. 1988 Robinson, History, at 105–106. “It may be noted that in certain countries foreigners are not covered by rent laws for the protection of tenants, save by virtue of treaties. If, therefore, refugees, who are usually destitute, are not to enjoy the treatment accorded under treaty to foreigners, they will be debarred from the benefits of such laws, which will spell disaster for them”: SecretaryGeneral, “Memorandum,” at 27. The representative of the IRO suggested that rent controls might be a form of property to be excluded from the protection of Art. 13, a view expressed in the hope of persuading delegates to adopt a national treatment standard for property rights: Statement of Mr. Weis of the International Refugee Organization, UN Doc. E/AC.32/SR.36, Aug. 15, 1950, at 11. States opted instead for a broad definition of relevant property interests (presumably rejecting the IRO’s bid to exclude some interests), but the standard of treatment was set as “aliens generally in the same circumstances.” See text at note 1929. The original drafts of Art. 13 suggested that property rights might be guaranteed either at the level of “the most favorable treatments accorded under treaty to foreigners”

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above,1992 this standard of treatment imposes a duty on states to consider in good faith the exemption of refugees from even rules applied generally to noncitizens. Limitations imposed on non-citizens may in any event be validly applied only to such refugees who are “in the same circumstances” as other aliens.1993 This proviso requires states to exempt refugees from requirements which may simply not be appropriate in view of impediments that follow from the refugee’s uprooting and dislocation.1994 Taking both of these duties into account, Ghana ought reasonably to have considered exempting refugees from its general policy of restricting land tenure for all non-citizens to fifty years1995 since refugees – unlike other non-citizens – are not usually in a position to own and enjoy land in their home country.

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(Secretary-General, “Memorandum,” at 26; a bracketed alternative form of words would allow states to commit themselves only to “the treatment accorded to foreigners generally”: ibid.) or even to require “treatment similar to that accorded to their nationals” (France, “Draft Convention,” at 4). But the drafters rejected pleas fully to enfranchise refugees in order to promote their speedy assimilation (“In view of the desirability that refugees should be assimilated as quickly as possible into the economic life of their country of residence, refugees should be granted the same property rights as nationals subject to any special regulations excluding aliens, e.g. property in frontier or strategic areas, government or central bank bonds, shares of shipping companies, mines, etc.”: Comments of the International Refugee Organization, UN Doc. E/AC.32/L.40, Aug. 10, 1950, at 40. See also Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/ SR.36, Aug. 15, 1950, at 10). Some states took the view that there was no good reason to privilege refugees relative to other non-citizens (Statement of Mr. Kural of Turkey, UN Doc. E/AC.32/SR.10, Jan. 24, 1950, at 4. See also Statement of Sir Leslie Brass of the United Kingdom, ibid. at 7: “[W]hile the Committee was trying as it should to protect refugees against discrimination, it should not go to the other extreme of establishing discrimination in favour of refugees. He shared the uneasiness of other members regarding the most-favoured-nation clause”). Others simply wanted to be able to reserve some property rights for either their own citizens (Statement of Mr. Rain of France, ibid. at 6–7) or for the citizens of states with which they were allied in an economic or political association (“Belgium . . . placed nationals of the Benelux countries for certain purposes on a quasi-equal footing with Belgian citizens. It was not the intention of the article under consideration, he hoped, to ask the same treatment for refugees”: Statement of Mr. Cuvelier of Belgium, ibid. at 5. See also Statement of Mr. Larsen of Denmark, ibid. at 5: “[T]he Scandinavian countries . . . did accord special treatment to Scandinavian nationals which they would not be prepared to give to other foreigners, including refugees”). In keeping with the traditional deference afforded states to define their own notions of property, Art. 13 requires only that refugees enjoy protected interests at a low contingent standard of treatment, namely treatment “as favourable as possible and, in any event, not less favourable than that accorded to aliens generally in the same circumstances”: “Decisions of the Working Group Taken on 9 February 1950,” UN Doc. E/AC.32/L.32, Feb. 9, 1950, at 5. This standard was adopted without further debate by the Ad Hoc Committee on a 5–1 (5 abstentions) vote: UN Doc. E/AC.32/SR.25, Feb. 10, 1950, at 5. So long as restrictions are of general application (or at least applied to all other non-citizens), they may in most cases govern the rights of refugees as well. See Chapter 3.2.1. See Chapter 3.2.1 at note 258. 1993 See Chapter 3.2.3. 1994 Ibid. at note 311 ff. See text at note 1927.

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Beyond Art. 13’s value as a prohibition of refugee-specific property rights discrimination and as setting a duty to consider in good faith the exemption of refugees from general rules and in any event from those inconsistent with a refugee’s circumstances, a third net benefit of the Refugee Convention is that it establishes a right to fair compensation in the event of property confiscation via its Art. 7(1)1996 – a protection which, as noted above,1997 is not yet codified in general international human rights law.1998 Because Art. 7(1)’s overarching duty to accord refugees “the same treatment as is accorded to aliens generally” is not limited to the rights specifically set out in the Refugee Convention,1999 Art. 7(1) incorporates by reference the duty to adhere to customary norms of international aliens law.2000 Of particular relevance, this includes the clear obligation to provide non-citizens with adequate compensation for any denial of property rights.2001 In essence, Art. 7(1) ensures that refugees are not denied the benefit of the protection of international aliens law simply because their own state of nationality cannot be counted on to exercise its formal responsibility to undertake enforcement action.2002 Under Art. 7(1), the duty to provide fair compensation rather falls upon state parties, meaning that alien-specific confiscatory regimes, including those applied simply against refugees, must fairly compensate refugees. The laws of Denmark2003 and Switzerland2004 authorizing the search and seizure without compensation of refugee assets, as well as the Dutch2005 and Swiss2006 systems of seizing a portion of refugee earnings owed by employers, are thus in breach of this duty. Nor is it an answer to argue that the assets confiscated are essentially reimbursement for the costs incurred by those states to operate refugee reception centers: because it is not legal to require refugees awaiting status assessment to live in such a center,2007 any cost reimbursement must be freely agreed to by a refugee who chooses to avail herself of such a facility. Despite the real value of this guarantee of fair compensation in the event of property confiscation, it is important to recognize that the duties under international aliens law incorporated into the duty of states under Art. 7(1) of the Convention do not establish a right to be free from property deprivation as such (but only to be fairly compensated for any such loss).2008 Art. 7(1) 1996 1997 1998

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The scope and meaning of Art. 7(1) are addressed in detail at Chapter 3.2. See text at note 1949. Even as among regional human rights treaties, such a guarantee is codified only in Art. 21(2) of the American Convention on Human Rights: see text at note 1943. See Chapter 3.2.1. 2000 Ibid. 2001 See Chapter 1.1 at note 7. Ibid. at note 12. 2003 See text at note 1910. 2004 See text at note 1911. See text at note 1912. 2006 See text at note 1913. See Chapter 4.2.4 at note 1244 ff. For example, even the strongest advocates of the protection of refugee property rights conceded the logic of exceptions “based on security considerations”: Comments of the International Refugee Organization, UN Doc. E/AC.32/L.40, Aug. 10, 1940, at 40.

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duties therefore do not prohibit Tanzania from requiring refugees to surrender personal property upon repatriation2009 or the slaughter of all animals brought into Swaziland and Tanzania by refugees2010 since fair compensation is provided under those regimes. In contrast, when Swaziland and Tanzania authorize officials to commandeer refugee vehicles without compensation,2011 they presumptively breach their duties under Art. 7(1) of the Refugee Convention.2012 In sum, while refugee law – like general international human rights law – establishes no clear affirmative right of refugees to have property in the first place, it does add to general human rights law’s prohibition of discrimination based on non-citizen status in three ways. First, Art. 13 of the Refugee Convention makes clear that refugee-specific deprivation of a broad range of both movable (personal) and immovable (real) property, including acquisition by lease and related contractual interests, is unlawful. Second, the contingent standard of treatment that governs Art. 13 sets a duty to consider in good faith the exemption of refugees from general restrictions that limit property rights, and in any event to be free of limitations that are inconsistent with a refugee’s circumstances. And third, Art. 7(1) of the Refugee Convention incorporates by reference the duty to provide refugees with fair compensation in the event of property confiscation.

4.5.2 Tax Equity Countries of refuge rarely apply special rules for the taxation of refugees. When states do treat refugees differently for tax purposes, the goal may be to assist them. For example, UNHCR reported that refugees are occasionally exempted from customs duties on the importation of their personal effects.2013 Less formal dispensation from taxation may also occur, particularly for those living in camps.2014 For example, refugees arriving in the Qala en Nahal settlement in Sudan “were exempted from all taxes, and tractor service charges were also 2009 2012

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See text at note 1914. 2010 See text at note 1907. 2011 See text at note 1909. There is an argument that general principles of law now authorize the subordination of property rights to important social or public needs: see e.g. Krause, “Right to Property,” at 202 (“All three [regional human rights] conventions require that the interference must be taken in the public interest and it must be provided for by law. The formulations vary slightly, but in terms of substance there appear to be no major differences. The question of public interest is indeed a question where the state is given a wide margin of appreciation”). But confiscation imposed only on refugees (or indeed on aliens generally) is discriminatory, thus vitiating any such justification: See text at note 1956. UNHCR, “Information Note on Implementation of the 1951 Convention and the 1967 Protocol relating to the Status of Refugees,” prepared for the Sub-Committee of the Whole on International Protection, Forty-second Session, July 22, 1991, at [94]. E. Werker, “Refugee Camp Economies,” (2007) 20(3) Journal of Refugee Studies 461 (Werker, “Camp Economies”), at 471.

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waived,”2015 while Afghan truckers in Pakistan were not subject to the licensing fees otherwise required of nationals.2016 Similarly, Somali and Sudanese refugees living in Kukuma camp in Kenya were allowed to conduct business free of taxation until the local business community put pressure on the government to end what was perceived as an unfair advantage.2017 The imposition of an extra tax burden on refugees is not, however, unheard of. As part of its Law for the Prevention of Infiltration and to Ensure the Departure of Infiltrators, Israel imposes a 20 percent tax on refugee wages (matched by a 16 percent employer contribution). The monies collected are deposited into a government-managed fund2018 and made available to the refugee only when he or she leaves Israel. In addition, “[t]he State may expropriate up to 33% of the total accumulated sum [if] the ‘infiltrator’ does not leave by the end of his authorized stay period in Israel.”2019 Refugees living in camps may also be subject to taxes of dubious utility. In Uganda’s Kyangwali camp, for example, refugees faced three types of levy: The first type was a market participation fee for market days held inside the [refugee] settlement; approximately USh200 per seller per market day was being paid, supposedly to the [Refugee Welfare Council (“RWC”)]. The second type apparently also went to the RWC. This taxed the traders a certain amount per bag of agricultural produce that they had purchased from the refugees, and was administered upon the lorry’s departure from Kyangwali. The third type of tax was an annual fee of USh10,000 on each business being run inside the camp. According to the settlement commander, this “licence fee” was being collected by the mayor of the business

2015 2016 2017

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G. Kibreab, Refugees and Development in Africa: The Case of Eritrea (1987), at 83. Werker, “Camp Economies,” at 471. G. Verdirame, “Human Rights and Refugees: The Case of Kenya,” (1999) 12(1) Journal of Refugees Studies 54 (Verdirame, “Kenya”), at 68–69. UNHCR, “Response by UNHCR to the legal representative on the scheme for the ‘deposit of funds for the benefit of the foreign worker and ensuring his departure from Israel,’” July 2017, at [2]. See also “New Tax in Israel Leaves African Migrants Feeling Unwanted and Unwelcome,” Jerusalem Post, July 3, 2017; E. Kamisher, “Asylum-Seekers Protest 20% Wage Deduction Law,” Jerusalem Post, April 27, 2017. UNHCR, “Response by UNHCR to the legal representative on the scheme for the ‘deposit of funds for the benefit of the foreign worker and ensuring his departure from Israel,’” July 2017, at [3]. “According to the Explanatory Note of the 2014 Draft Law on Departure of Infiltrators, this law serves two main purposes: to ensure the labour and social rights of ‘infiltrators’ and ‘to create a significant incentive for “infiltrators” to depart Israel on time (when this is possible) and to prevent their integration in Israel’. An additional objective is to increase the cost of employment of ‘infiltrators,’ thereby ‘preventing the dismissal of Israeli workers out of preference for foreign workers whose cost of employment is currently lower’”: UNHCR, “Response by UNHCR to the legal representative on the scheme for the ‘deposit of funds for the benefit of the foreign worker and ensuring his departure from Israel,’” July 2017, at [4].

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community, and it purportedly allows the business community to maintain the trading centre.2020

Sadly, researchers determined that these taxes presented “greater potential for embezzlement than for community improvement.”2021 There may also be differences in taxation based upon citizenship (rather than specifically tied to refugee status). For example, since 2017 Saudi Arabia has levied a tax of 100 riyals per month for each dependent of resident foreign workers.2022 Differential taxation based on citizenship is less common than it once was, however, reflecting the pervasive influence of Art. 24 of the OECD Model Tax Convention on Income and on Capital, mirrored in the United Nations Model Double Taxation Convention between Developed and Developing Countries,2023 requiring that resident aliens and resident citizens be taxed identically, and that non-resident aliens and non-resident citizens be subject to the same tax burdens. But not all interstate tax treaties incorporate this principle. For example, Australia has refused to include an article prohibiting non-discrimination on the basis of residence in most of its tax treaties.2024 Even when tax laws are facially non-discriminatory, refugees are frequently differently situated from citizens in ways that may expose them to increased tax

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Werker, “Camp Economies,” at 467. 2021 Ibid. “Rights Group Criticises Saudi Expat Tax for Refugees,” Al Jazeera, July 5, 2017. “The fees will be levied annually in advance against any dependent or companion of an expatriate worker in the private sector at the time of issuance or renewal of ‘Resident’ (muqeem) identity or issuance of an exit and re-entry visa or a final exit visa. The fee will be nonrefundable. The payment of the fee is applicable to all nationalities but there will be an exemption for those who already enjoy exemption from payment of iqama fee. The monthly fee per head is SR100 effective from July 2017 and this will be increased to SR200, SR300, and SR400 from the first day of July 2018, 2019 and 2020 respectively”: H. Cheruppa, “Dependent Fee to be Paid in Advance and is Not Refundable,” Saudi Gazette, July 6, 2017. “Nationals of a Contracting State shall not be subjected in the other Contracting State to any taxation or any requirement connected therewith which is other or more burdensome than the taxation and connected requirements to which nationals of that other State in the same circumstances, in particular with respect to residence, are or may be subjected. This provision shall, notwithstanding the provisions of Article 1, also apply to persons who are not residents of one or both of the Contracting States”: Organization for Economic Cooperation and Development, Model Tax Convention on Income and on Capital (2017), at Art. 24(1) (“OECD Tax Treaty”), read.oecd-ilibrary.org/taxation/model-tax-convention-on-incomeand-on-capital-2017-full-version_g2g972ee-en#page94, accessed Feb. 15, 2020. See also United Nations, “Model Double Taxation Convention between Developed and Developing Countries” (2017 updated version) (“UN Tax Treaty”), www.un.org/esa/ffd/wp-content/ uploads/2018/05/MDT_2017.pdf, accessed Feb. 15, 2020, at Art. 24(1). B. Arnold, Tax Discrimination Against Aliens, Non-Residents, and Foreign Activities: Canada, Australia, New Zealand, the United Kingdom, and the United States (1991) (Arnold, Tax Discrimination), at 258. See also B. Arnold, International Tax Primer (2016) (Arnold, Tax Primer), at 71–87, 166–167.

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liability. For example, most treaties modeled on the OECD draft do not provide any protection against tax discrimination on the basis of the geographical location of property, expenditures, or activities.2025 A refugee who has spent most of his or her life in a state other than the asylum country will often have their primary asset base abroad. To the extent that refugees are more likely than citizens to derive a substantial share of their income from overseas property, they will be more adversely impacted than citizens by the failure of most tax treaties to proscribe discrimination on the basis of the geographical source of income.2026 Refugee Convention, Art. 29 Fiscal Charges 1. The Contracting States shall not impose upon refugees duties, charges or taxes, of any description whatsoever, other or higher than those which are or may be levied on their nationals in similar situations. 2. Nothing in the above paragraph shall prevent the application to refugees of the laws and regulations concerning charges in respect of the issue to aliens of administrative documents including identity papers. Art. 29 continues the pattern set by earlier treaties2027 of protecting refugees against the possibility of “special taxes, duties and charges.”2028 Most noncitizens avoid the prospect of differential tax2029 by reliance on the near-

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Arnold, Tax Discrimination, at 46. Nagy rightly observes that with many refugees now fleeing non-state persecution, “the likelihood that refugees will legally acquire income from the country of origin will increase”: B. Nagy, “Article 29,” in A. Zimmermann ed., The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary 1215 (2011) (Nagy, “Article 29”), at 1226. Arrangement concerning the Extension to Other Categories of Refugees of Certain Measures taken in favour of Russian and Armenian Refugees, 2006 LNTS 65, done June 30, 1928, at Art. 8; Convention relating to the International Status of Refugees, 159 LNTS 3663, done Oct. 28, 1933, at Art. 13; Convention concerning the Status of Refugees Coming from Germany, 4461 LNTS 61, done Feb. 10, 1938, at Art. 16. “In principle foreigners residing in a country are subject to the duties, taxes and charges to which nationals are liable. They may also be subject to special taxes, duties and charges. A large number of bilateral treaties concluded on the basis of reciprocity stipulate that nationals of the co-contracting country shall enjoy the same treatment in fiscal matters as nationals. Stateless persons cannot invoke these treaties”: United Nations, “Statelessness,” at 31. Thus, “Art. 29 aims at putting the refugee in no worse conditions than those of nationals in similar situations”: Nagy, “Article 29,” at 1216. Brian Arnold, for example, argues that “domestic and customary international law do not constrain a country’s power to discriminate for tax purposes. In this respect, aliens . . . are fair game for a legislature with protectionist tendencies”: Arnold, Tax Discrimination, at 23.

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universal provision in bilateral tax treaties assimilating citizens and noncitizens for purposes of fiscal liability.2030 In the case of refugees, however, a protection void might arise from either of two circumstances. First, there might simply be no tax treaty with the refugee’s country of citizenship, or that treaty might not include the usual guarantee of non-discrimination based on citizenship. Second, as tax treaties are typically enforced on the basis of reciprocity, refugees might be denied tax equality because of the actions of the very government from which they had fled.2031 The goal of the Refugee Convention is to put refugees in the same position as the nationals of a contracting state which is in compliance with its duties under a tax treaty prohibiting discrimination based on nationality.2032 Art. 29 is broadly framed.2033 Refugees must receive national treatment with respect to “duties, charges or taxes, of any description whatsoever.” This expansive language clearly includes2034 at a minimum taxes as defined under the model tax treaties, comprising “taxes on income, on total capital, or on elements of income or of capital, including taxes on gains from the alienation of movable or immovable property, taxes on the total amounts of wages or salaries paid by enterprises, as well as taxes on capital appreciation.”2035 Art. 29 would thus prohibit the imposition on refugees of the 100 riyals per month tax levied by Saudi Arabia for each dependent of a non-citizen.2036 2030

2031

2032

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This rule is contained in the two most influential model tax treaties: OECD Tax Treaty, at Art. 24; and UN Tax Treaty, at Art. 24. The text of the two rules is identical. “[M]ost countries tax their residents on their worldwide income and nonresidents on their domestic source income”: Arnold, Tax Primer, at 71. This risk is, however, attenuated by Art. 7(2) of the Refugee Convention, which exempts refugees who have lived in an asylum country for three years from requirements of legislative reciprocity. See generally Chapter 3.2.2. Refugees are therefore “not obliged to pay taxes or other charges levied on aliens only”: Weis, Travaux, at 272. It is also emphatic. As Nagy notes, “[t]he phrase is categorical, allowing for no exception”: Nagy, “Article 29,” at 1221. The one area in which there is a sound argument not to incorporate general understanding of non-discrimination based on citizenship into the duty under Art. 29 of the Refugee Convention is with regard to taxes assessed by political sub-units of an asylum state. The general rule is that the duty to tax citizens and non-citizens equally applies not only to relevant charges made by the national government, but also to “taxes imposed by their political subdivisions or local authorities”: UN Tax Treaty, at 47. On the other hand, Art. 41 of the Refugee Convention expressly provides that “[i]n the case of a Federal or nonunitary State . . . [w]ith respect to those articles of this Convention that come within the legislative jurisdiction of [sub-units] . . . the Federal Government shall bring such articles with a favourable recommendation to the notice of the appropriate authorities of States, provinces or cantons at the earliest possible moment”: Refugee Convention, at Art. 41(b). OECD Tax Treaty, at Art. 2; UN Tax Treaty, at Art. 2. See text at note 2036. Indeed, there is an argument that even if the dependents are not themselves refugees, “the Conference of Plenipotentiaries in 1951 adopted Recommendation B . . . in which the delegates noted with satisfaction that ‘according to the official commentary

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Because of its expansive framing, however, Robinson argues that the duty under Art. 29 extends also to “every kind of public assessment, be it of a general nature (taxes and duties) or for specific services rendered by the authorities to a given person (charges).”2037 There is support for this broad reading not only in the unusually sweeping language of the article itself, but also in the rejection by the Conference of Plenipotentiaries of a proposed exception that would have allowed governments to continue to impose a refugee-specific stamp duty to issue identity cards, residence permits, and travel documents. Even though such levies were to be “wholly applied for the relief of refugees,”2038 the drafters viewed them as an unacceptable infringement of the duty to tax refugees and nationals on the same basis.2039 It is thus clear that the various levies assessed against refugees in Uganda’s Kyangwali Camp2040 are regulated by Art. 29.2041

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2038 2039

2040 2041

of the ad hoc Committee on Statelessness and Related Problems the rights granted to a refugee are extended to members of his family’ . . . [I]t is legitimate to assume that members of the family of the refugee should benefit from the same rights as the refugee under Art. 29, unless their stay or residence in the country of asylum is based on another ground, i.e. not on their membership of the refugee’s family”: Nagy, “Article 29,” at 1221. Robinson, History, at 148. Drawing on this formulation, Nagy opines that Art. 29 proscribes differential “capital gains, consumption, corporation, income, inheritance, property, transfer, value added, and wealth taxes [as well as] the so-called ‘poll tax’ (per capita tax), tolls, and excises, which are not related to the market value of the asset or service or income taxed or charged, but constitute a fixed sum. Naturally it also extends to the duties levied by a government on imported goods”: Nagy, “Article 29,” at 1222. Secretary-General, “Memorandum,” at 31. “[R]efugees had already been assimilated to nationals in respect of public assistance and labour legislation and social security. Was it therefore absolutely necessary also to contemplate imposing a tax to provide relief for refugees? He thought not [emphasis added]”: Statement of Mr. Miras of Turkey, UN Doc. A/CONF.2/SR.12, July 9, 1951, at 14. In earlier discussion in the Ad Hoc Committee, the Chinese representative had observed that “[r]efugees are not especially wealthy persons, and if the only intention . . . was to help them, it would be better to approach the rich”: Statement of Mr. Cha of China, UN Doc. E/AC.32/SR.39, Aug. 21, 1950, at 23. See text at note 2020. The duty to assimilate refugees to nationals does not, of course, prevent governments from assessing fees for services not required by nationals. In particular, para. 2 of Art. 29 confirms that refugees may be required to pay a modest amount to cover the actual costs of delivering documentation required by non-citizens, such as identity papers. “[P]aragraph 2 . . . state[d] expressly that identity papers were included. He would therefore interpret it as applying to all the documents, including identity papers, referred to in the draft Convention. There might be other articles necessitating the issue of other administrative documents, and Contracting States should reserve the right to charge a small fee for delivering them [emphasis added]”: Statement of the President, Mr. Larsen of Denmark, UN Doc. A/CONF.2/SR.12, July 9, 1951, at 15. As Weis observes, “[p]aragraph 2 must be read in conjunction with Article 25, paragraph 4 and paragraphs 3 and 10 of the Schedule. The documents referred to are those mentioned in Articles 25 and 27, but also other documents required under the Convention”: Weis, Travaux, at 272. Specifically, para. 3 of the Schedule requires that “[t]he fees charged for issue of the [travel] document shall not exceed the lowest scale of charges for national passports”; and para. 10 stipulates

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Not only may refugees not be subjected to different assessments than nationals, but they must not be treated less well than nationals in relation to any given charge. This is clear from the textual prohibition of both “other or higher” charges or taxes.2042 The decisions of Kenya,2043 Pakistan,2044 and Sudan2045 to exempt refugees from some general taxes in order to facilitate their reestablishment are thus acts that align with the spirit of Art. 292046 (since exemption is neither an “other” nor a “higher” charge or tax). The parallel phrase in model tax treaties, which prohibits “other or more burdensome” taxation, requires “that when a tax is imposed on nationals and foreigners in the same circumstances, it must be in the same form as regards both the basis of charge and the method of assessment, its rate must be the same and, finally, the formalities connected with the taxation (returns, payment, prescribed times, etc.) must not be more onerous for foreigners than for nationals.”2047 Israel contravenes this duty by imposing its “infiltrator” tax on refugees predominantly from Eritrea and Sudan.2048 Not only are the deduction rates higher than those for Israelis engaged in comparable employment,2049 but the inability to access those funds other than by agreeing to give up one’s claim to asylum in Israel2050 and the government’s right to expropriate up to 33 percent of the accumulated sum2051 clearly make it a “more onerous” regime than the general employment savings tax applied to non-refugees.2052 The duty to treat refugees on terms of equality with nationals applies, however, only to the extent that refugees and nationals can be said to be “in similar situations.” In Robinson’s view, differences in tax liability between

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that “[t]he fees for the issue of exit, entry or transit visas shall not exceed the lowest scale of charges for visas on foreign passports”: Refugee Convention, at Schedule. Accord Nagy, “Article 29,” at 1223. 2043 See text at note 2017. See text at note 2016. 2045 See text at note 2015. “Naturally, States may – as a gesture – give preferential treatment in [tax] matters to refugees”: Nagy, “Article 29,” at 1216. To avoid an allegation of discrimination against citizens, such dispensations are most sensibly understood as designed to ensure substantive equality given the additional hardships faced by refugees: see Chapter 3.4. OECD Tax Treaty, at Art. 24(1) commentary; UN Tax Treaty, at Art. 24(1) commentary [15]. See text at note 2018. UNHCR, “Response by UNHCR to the legal representative on the scheme for the ‘deposit of funds for the benefit of the foreign worker and ensuring his departure from Israel,’” July 2017, at [2]. Indeed, the government’s own explanatory note indicated that the goal of the differential tax was “to create a significant incentive for ‘infiltrators’ to depart Israel on time (when this is possible) and to prevent their integration in Israel [emphasis added]”: ibid. at [4]. See text at note 2019. The tax is also in violation of the duty not to penalize refugees for illegal entry (see Chapter 4.2.2) and not to discriminate between or among refugees (see Chapter 3.4). These and other concerns are canvassed in UNHCR, “Response by UNHCR to the legal representative on the scheme for the ‘deposit of funds for the benefit of the foreign worker and ensuring his departure from Israel,’” July 2017.

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citizens and refugees that are attributable to “deriving a certain amount of income, having income abroad, [or] having special income sources”2053 do not infringe Art. 29. The equality guaranteed by this article of the Refugee Convention is, in other words, formal equality. There is no violation of Art. 29 if refugees in practice pay more tax than citizens not because they are refugees or non-citizens, but instead because their primary source of income is universally taxed in the asylum country at a higher rate than other sources of income. Thus, even though refugees are more likely than others to derive income from overseas property, Art. 29 would not prohibit a regime that taxes income from overseas property (for all) more severely than it does income from domestic property. Similarly, if nationals who are not residents are taxed differently from nationals who are residents, there can be no complaint if non-resident refugees are taxed differently from resident refugees2054 – as is the case, for example, in Australia.2055 But any attempt to treat non-resident citizens and non-resident aliens differently for income tax purposes would run afoul of the Refugee Convention. The 1951 Refugee Convention, unlike its predecessors, does not limit the duty of tax equality only to resident refugees.2056 Every person who is 2053 2054

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Robinson, History, at 148. This is clear from an exchange at the Conference of Plenipotentiaries. In response to the Swedish representative’s comment that his country taxed non-citizen commercial travelers and performing artists differently from nationals, the President of the Conference affirmed that only differences grounded in substance, not in nationality, would be allowed under Art. 29. “[T]he problem referred to by the Swedish representative, which was a question of domicile or habitual residence rather than nationality, could be solved within the framework of paragraph 1. For example, if a Swedish artiste resident in Denmark went back to Sweden to perform for a short period, he would be subject to the same taxes as, for instance, a Danish artiste in the same position”: Statement of the President, Mr. Larsen of Denmark, UN Doc. A/CONF.2/SR.12, July 9, 1951, at 16. The principle is also endorsed in the Commentary to the UN model tax treaty. “Consequently if a Contracting State, in giving relief from taxation on account of family responsibilities, distinguishes between its own nationals according to whether they reside in its territory or not, that State cannot be obliged to give nationals of the other State who do not reside in its territory the same treatment as it gives its resident nationals [so long as it] undertakes to extend to them the same treatment as is available to its non-resident nationals”: UN Tax Treaty, at 208. See text at note 2024. As initially proposed, the Convention continued the traditional practice of reserving the benefit of the tax equality rule for resident refugees. “The High Contracting Parties undertake not to impose upon refugees (or stateless persons) residing in their territory duties, charges or taxes, under any denomination whatsoever, other or higher than those which are or may be levied on their nationals in similar situations”: Secretary-General, “Memorandum,” at 31. As reframed by the Ad Hoc Committee, however, the residency requirement was deleted. “The Contracting States shall not impose upon refugees in their territory duties, charges or taxes”: Ad Hoc Committee, “First Session Report,” at 7. With no explicit discussion of the matter, the Conference of Plenipotentiaries deleted the reference to “refugees in their territory” in favor of “refugees.” Theoretically, then, even

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in fact a refugee, even if his or her presence in a state party is only transient, must be equated to citizens for purposes of the imposition of taxes and related charges. While most forms of tax do not apply to non-residents, duties on imports or exports are examples of charges which are assessed against nonresidents, in relation to which non-resident refugees must be treated on terms of equality with non-resident citizens.2057

4.6 Family Rights A critical imperative for most refugees is to avoid separation from their families. As UNHCR has observed, “family members together have more strength to face adversity than those apart.”2058 While family relations are important means of satisfying physical and psychological needs during normal times, these attachments take on even greater significance when involuntary migration deprives refugees of their traditional support networks.2059 The more threatening the environment, the more family members will look to each other for intimacy and security.2060 Yet the very crises that force refugees to flee often shatter the unity of their families. Family members may not be able to leave together,2061 or may be separated in the chaos of flight.2062 Refugees separated from their families are not only less equipped to cope with life in an asylum state, but are often prone to loneliness, despair, and anxiety over the fate of their loved ones left behind in dangerous situations.2063 As Dixon-Fyle writes, “[t]heir relief at having

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refugees not in a state party’s territory, but who are nonetheless under its authority for tax purposes, must be granted the benefit of Art. 29. See generally Chapter 3.1.1. See also Nagy, “Article 29,” at 1222. “Art. 29 deals with refugees in general; in other words, to enjoy equal status with nationals ‘in similar circumstances’ of the country where the fiscal charges are payable, the refugees need not reside in either the state concerned or in another Contracting State”: Robinson, History, at 148. UNHCR, “Families in Exile: Reflections from the Experience of UNHCR” (1995) (UNHCR, “Families”), at 3. H. Williams, “Families in Refugee Camps,” [Summer 1990] Human Organization 103. J. Barudy, “The Therapeutic Value of Solidarity and Hope,” in D. Miserz ed., Refugees – The Trauma of Exile 142 (1988). In particular, children have an increased need for physical contact with their parents, and often fear separation from their family above all else: E. Ressler et al., Unaccompanied Children: Care and Protection in Wars, Natural Disasters and Refugee Movements (1988) (Ressler et al., Unaccompanied Children), at 133, 147, and 150. “Facing persecution and often death, refugee families are frequently forced to separate while fleeing amid mass destruction, spraying bullets, bombs, and guerilla warfare”: UNHCR, “Families,” at 1. Missing person notices have cropped up across Europe, as “people lose each other amid misunderstandings, blocked borders, and overwhelmed officials and aid workers”: L. Gall, “Dispatches: Losing Family Members at Europe’s Borders,” Sept. 24, 2015. UNHCR, “Year of the Family,” (1994) 95 Refugees 3, at 5.

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reached safety may be so overshadowed by distress, guilt and worry about those who remain behind that the chances of their settling down and becoming fully integrated in their host country may be seriously reduced.”2064 There are few legal impediments to the maintenance of family unity in most less developed asylum states. Because these countries normally rely on group status determination of refugees, the acceptance of members of refugee families able to reach their territory tends to occur as a matter of course, with no differentiation made between the arrival of some family members as part of an initial influx and the subsequent arrival of others.2065 In the global South, the more serious obstacle to refugee family unity results from practical difficulties in tracing family members who may be in another camp, or even in another country. Most critically, there are often large numbers of unaccompanied children in massive refugee flows.2066 Part or all of a child’s family may be separated or even killed. Children may be sent out of the country, sometimes with siblings and sometimes alone, while the parents remain. Alternatively, children may remain behind temporarily while part of the family leaves to get established in a new land; they may also have been separated from their family after being abducted by an army or militia.2067 In some truly extreme situations, parents are compelled voluntarily to become separated from their children as part of a survival strategy,2068 or to enable their children to take advantage of superior opportunities often available to unaccompanied minors.2069 In addition to such emergency-related circumstances, refugee families may become separated because of the same sorts of social, psychological, and cultural problems that arise generally in families. In other situations, “the separations are the unplanned result of the way relief assistance is provided. For example, relief workers have sometimes removed children from a dangerous area or to a medical facility without notifying the family or others in the vicinity.”2070 When resource constraints or logistical concerns conspire to keep family 2064

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K. Dixon-Fyle, “Reunification: Putting the Family First,” (1994) 95 Refugees 6 (DixonFyle, “Reunification”), at 9. Ibid. at 7. For example, more than 20 percent of refugees who sought asylum in Europe in 2015 were unaccompanied children: “IOM and UNICEF Data Brief: Migration of Children to Europe,” Nov. 20, 2015, at 1. On a global scale, UNICEF estimates the total number of refugee children traveling alone to have increased fivefold since 2010: “UNICEF: Number of Unaccompanied Refugee Children Reaches ‘Record High,’” Deutsche Welle, May 18, 2017. F. Ahearn and J. Athey, Refugee Children: Theory, Research, and Services (1991), at 11. For example, older boys may be encouraged to fend for themselves, and older girls “to attach themselves to more prosperous and safe families as helpers”: L. Bonnerjea, “Disasters, Family Tracing and Children’s Rights: Some Questions About the Best Interests of Separated Children,” (1994) 18 Disasters 277, at 278. Ressler et al., Unaccompanied Children, at 119. 2070 Ibid. at 118–119.

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members apart – and particularly when children are missing – there is always a fear that “[s]ome family members [will] spontaneously repatriate to their homeland in precarious political circumstances to find their loved ones – and never return.”2071 In the developed world, family unity concerns most commonly arise in relation to reunification efforts, rather than as refusals of entry at the border.2072 In contrast to the situation in poorer states, however, much of the difficulty faced by refugees seeking to reunite their families tends to result from the application of administrative requirements governing such issues as the point at which refugees should be allowed to sponsor the admission of their family members, which family members may be admitted, and what criteria must be met. Virtually all Northern states decline family reunification to refugees awaiting the results of status determination.2073 On the other hand, once claimants are formally recognized as Convention refugees, most developed countries grant them a formal legal right to be reunited with family members. There is more ambiguity where a refugee is granted some alternative status, rather than full Convention refugee status. In Australia, for example, refugees who arrive by sea or air without a valid visa are granted only temporary protected status, which does not entitle them to family reunification.2074 Canadian law withholds the right to sponsor family members for five years from refugees who are 2071 2072

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UNHCR, “Families,” at 3. See also G. Fourlanos, Sovereignty and the Ingress of Aliens (1986) (Fourlanos, Sovereignty), at 111: “When it comes to immigration rights deriving from the principle of family unity, the situation is rather obscure. A specific right to enter and/or to reside is not very often mentioned in international agreements, but it seems that, in practice, States understand the individual right to family unity as including the right to enter their territory and to reside there (i.e. not to be expelled).” The European Union standards on family reunification are explicitly stated not to apply to “a third-country national applying for recognition of refugee status whose application has not yet given rise to a final decision”: Council Directive on the Right to Family Reunification, Doc. 2003/86/EC (Sept. 22, 2003) (EU Family Reunification Directive), at Art. 3(2)(a). “Refugees who arrived in Australia by boat and have yet to achieve citizenship have virtually no opportunities for family reunion. While they can be technically eligible to apply to sponsor family members in some situations, their family reunion applications are given ‘lowest processing priority’ unless there are special circumstances of a compassionate nature or where processing of applications would otherwise be unreasonably delayed. The ‘special circumstances of a compassionate nature’ or reasonable timeframe are not defined in the Ministerial Directive [No. 72]. It effectively means for the vast majority of applicants, their applications have very little chance of success. TPV [Temporary Protection Visa] and SHEV [Safe Haven Enterprise Visa] holders cannot sponsor family members under any program and will not have the opportunity to become citizens unless the Minister for Immigration grants them permanent residency or they are able to satisfy the eligibility criteria for a permanent Australian visa (for SHEV holders): Refugee Council of Australia, “Recent changes in Australian refugee policy,” June 8, 2017.

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part of a group deemed to have arrived in Canada irregularly;2075 New Zealand similarly imposes a three-year waiting period for refugees deemed part of a “mass arrival.”2076 Comparable practices occur in relation to persons granted alternative forms of protected status in much of Europe.2077 Following the arrival of nearly one million refugees in 2015, Germany postponed family reunification for persons granted subsidiary protection for more than two years; this policy coincided with a sharp rise in the granting of subsidiary 2075

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“Applications or requests from ‘designated foreign nationals’ will not be considered for at least five years . . . and the processing of these applications or requests will be suspended if a foreign national becomes a ‘designated foreign national’ after his or her application or request is made. The practical consequence of these waiting periods is that a ‘designated foreign national’ can obtain refugee status or the status of a person in need of protection but will need to wait five years before being able to apply for permanent residence. A second practical consequence is that ‘designated foreign nationals’ will not be able to sponsor their family members to come to Canada as they must have acquired permanent residence status to do so”: Canada, Library of Parliament, “Bill C-31: An act to amend the Immigration and Refugee Protection Act, the Balanced Refugee Reform Act, the Marine Transportation Security Act and the Department of Citizenship and Immigration Act,” Legislative Summary, Publication No. 41-1-C31-E, Feb. 29, 2012, at 15. “In 2013, laws were passed to address ‘mass arrivals’ of asylum seekers (that is, asylum seekers arriving in NZ in a group of 30 or more). As part of the changes, asylum seekers who arrive in NZ as part of a ‘mass arrival’ and who are found to be refugees are to be granted temporary visas and to have their status reassessed after three years before they are eligible for permanent residence. Under the changes, immediate family members may be sponsored only after residence has been granted, and extended family members are ineligible for sponsorship. According to the Immigration Minister Michael Woodhouse: ‘These policy changes are considered to be an important deterrent to a mass arrival. Asylum seekers may be less likely to endanger their lives by attempting to travel to New Zealand by sea if they know they must wait for three years and have their claim reassessed before they can apply for residence, and if they are unable to reunite with extended family members’”: Andrew & Renata Kaldor Centre for International Refugee Law, “Factsheet: Temporary Protection Visas and Safe Haven Enterprise Visas,” May 27, 2017, at 8. The EU Family Reunification Directive excludes beneficiaries of temporary and subsidiary protection from the scope of its protection: EU Family Reunification Directive, at Art. 3(2)(b)–(c); but see Communication from the Commission to the European Parliament and the Council on Guidance for the Application of Directive 2003/86/EC on the Right to Family Reunification, Doc. COM/2014/2010/FINAL (Apr. 3, 2014), at 24– 25 (urging states to “adopt rules that grant similar rights to refugees and beneficiaries of temporary or subsidiary protection”). Although the 2001 Directive on Temporary Protection contains a clear right to family reunification for the beneficiaries of temporary protection in member states (EU Temporary Protection Directive, at Art. 15), in practice, its provisions have not yet been invoked. “Nonetheless it is noteworthy that the TPD . . . sets three conditions, namely that the family ties existed already in the country of origin, that the ties were disrupted due to circumstances surrounding the mass influx, and that the family members must be either beneficiaries of temporary protection themselves (but present in another member state) or in need of protection”: C. Costello et al., “Realising the Right to Family Reunification of Refugees in Europe,” Issue paper, Council of Europe, June 2017 (Costello, “Family Reunification”), at 31.

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protection rather than refugee status.2078 Delays in family reunification were also implemented by Denmark, Sweden, Austria, and Switzerland with regard to beneficiaries of subsidiary and temporary protection;2079 Cyprus and Greece removed the right from the former group altogether.2080 Even if entitled to sponsor the entry of family members, a second question arises with the definition of the specific relationships which qualify as family members for purposes of reunification. Some states resist any understanding of “family” that goes beyond an opposite-sex partner2081 and minor, dependent children.2082 In Europe, difficulties often arise if a refugee is not formally married to his or her spouse, as each state is left to decide for itself whether or not to recognize the relationship;2083 a second or subsequent spouse in a polygamous marriage cannot be sponsored at all.2084 A number of states have also taken the liberty of confining family reunification to persons whose relationships predate their arrival to seek protection.2085 2078

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“After the new restriction on family reunification entered into force in March 2016, there was a sharp rise in subsidiary protection grants. These subsidiary protection beneficiaries would not be entitled to file an application for family reunification until after March 2018. Notably too, of those granted subsidiary protection, almost 26,000 persons (29%) filed an appeal against this decision, creating a large additional burden for the administration and the courts. Of the 2,365 appeals decided by the end of October 2016, three quarters resulted in the appellant being recognised as a 1951 Convention refugee. Among appellants from Syria, the rate of success on appeal (that is, when the outcome was that the appellant ought to have been recognised as a 1951 Convention refugee) was 81%”: Costello, “Family Reunification,” at 34. The policy was later extended until the end of July 2018. Costello, “Family Reunification,” at 18, 35, 40, 41. 2080 Ibid. at 34. Even in states that recognize same-sex unions, refugees seeking reunification may nonetheless face barriers in the type and extent of evidence required to establish such a relationship, as well as the fact that “most refugees flee states where this status [civil partnership] is not legally available”: ibid. at 37. Some states recognize additional conditions for even these categories. In the United Kingdom, for example, “the definition of ‘child’ adds additional criteria beyond minority – in addition the child must be ‘not leading an independent life’ and must have been ‘part of the family unit of the refugee or person with humanitarian protection (i.e. a subsidiary protection beneficiary) at the time when the refugee fled.’ At one point, this latter requirement was interpreted to mean that children born post-flight (even if conceived pre-flight) were not eligible for reunion, but the practice on this matter has changed”: ibid., at 38. Beyond this narrow category of family members, even the discretionary authority of European Union states is limited. They may only elect to admit other firstdegree relatives who are dependent on the refugee, and adult unmarried children who are incapacitated: EU Family Reunification Directive, at Art. 4(2). EU Family Reunification Directive, at Art. 4(3). Ibid. at Art. 4(4). See also Communication from the Commission to the European Parliament and the Council on Guidance for the Application of Directive 2003/86/EC on the Right to Family Reunification, Doc. COM/2014/2010/FINAL (Apr. 3, 2014), at 22. This option is explicitly provided for in the EU Family Reunification Directive, at Art. 9(2). See also Communication from the Commission to the European Parliament and the Council on Guidance for the Application of Directive 2003/86/EC on the Right to Family

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Even where a refugee is in principle entitled to reunification with particular family members, there may be additional criteria to be met. The United Kingdom2086 and Australia,2087 for example, require some refugees to prove their financial ability to meet the needs of sponsored family members hoping to join them from abroad. European Union law, in contrast, does not condition family reunification on such considerations so long as the application is filed within three months of the formal recognition of refugee status.2088 After that time, however, family reunification may be subject to the sponsoring refugee’s ability to provide his or her family with accommodation and health insurance, and to meet their other financial needs.2089 More generally, the European Union also authorizes the rejection of any application for family reunification on the sweeping basis of “public policy, public security or public health.”2090

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Reunification, Doc. COM/2014/2010/FINAL (Apr. 3, 2014), at 21; and Costello, “Family Reunification,” at 39–40. Relevant rules under the “Minimum Income Requirement” dictate that sponsors have a “gross annual income of at least £18,600, with an additional £3,800 for the first dependent non-EEA national child and £2,400 for each additional child. Only the sponsor’s earnings are to be taken into account: the prospective earnings of an entering partner, and any support from third parties, are ignored”: R (MM Lebanon) v. Secretary of State for the Home Department, [2017] UKSC 10 (UK SC, Feb. 22, 2017), at [1]. An exception is made, however, for persons who were family members prior to the refugee’s departure from his or her country of origin in order to seek asylum: UK Immigration Rules, paras. 352(A)–(F). Under Australia’s family stream of the Migration Program, sponsors must agree to meet the needs of family members for ten years, and provide a bond of A$10,000 for the principal applicant and A$4,000 for any additional adult applicant. This is in addition to the sponsorship fees, which begin at A$6,865 for partners and, according to one study, could amount to nearly A$100,000 for both parents: Refugee Council of Australia, “Addressing the Pain of Separation for Refugee Families,” Nov. 2016, at 5. EU Family Reunification Directive, at Art. 12(1). See also Communication from the Commission to the European Parliament and the Council on Guidance for the Application of Directive 2003/86/EC on the Right to Family Reunification, Doc. COM/ 2014/2010/FINAL (Apr. 3, 2014), at 21. EU Family Reunification Directive, at Arts. 7(1), 12(1); see also Communication from the Commission to the European Parliament and the Council on Guidance for the Application of Directive 2003/86/EC on the Right to Family Reunification, Doc. COM/ 2014/2010/FINAL (Apr. 3, 2014), at 21. “In 2012, UNHCR noted that most states did not make use of the facility in the FRD to limit refugees’ preferential access to family reunification using this three-month time limit . . . Since 2012, an increasing number of states apply the short time limit of three months”: Costello, “Family Reunification,”at 41. Countries that have since imposed restrictions include Germany, Luxembourg, Sweden, and Hungary; Norway permits exemption from these requirements for those who apply within one year following the grant of permanent residence: ibid. at 41–42. EU Family Reunification Directive, at Art. 6(1). Somewhat ominously, a footnote to this provision makes clear that “[t]he notion of public policy and public security covers also cases in which a third-country national belongs to an association which supports international terrorism, supports such an association or has [extremist] aspirations”: ibid. See also Communication from the Commission to the European Parliament and the

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Finally, there are often prolonged delays in authorizing family reunification in developed states. Complex procedures absorb tremendous amounts of time and energy, and “keep refugees’ minds riveted to the past and to trauma, instead of allowing them and their families to start thinking of the future and rebuilding their lives.”2091 In Australia, exorbitant costs associated with the official family sponsorship program have led refugees to seek reunification through the Special Humanitarian Program. But because of this program’s low numerical cap, a backlog means that applications take years to process.2092 Many Guatemalan and Salvadoran refugees in the United States were kept waiting for as long as twenty years after their arrival before being granted the formal status that entitled them to sponsor the arrival of close family members.2093 The EU Family Reunification Directive explicitly provides for delays of up to three years before sponsors residing in EU Member States may apply on behalf of their family members.2094 In some cases, delays may defeat the very possibility or logic of reunification, as children reach the age of majority

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Council on Guidance for the Application of Directive 2003/86/EC on the Right to Family Reunification, Doc. COM/2014/2010/FINAL (Apr. 3, 2014), at 10–11. Dixon-Fyle, “Reunification,” at 9. Refugee Council of Australia, “Australia’s Refugee and Humanitarian Program 2017–18: Community Views on Current Challenges and Future Directions,” May 2017, at 43. Nor are waiting periods for sponsorship through the family stream of the Migration Program any shorter. Due to restrictive quotas for various immigrant sub-classes, it was estimated that “applications for Carer visas that were lodged in 2014 are likely to take 4.5 years to be finalised, while the applications for Remaining Relative and Aged Dependent Relative lodged in 2014 are likely to take approximately 50 years to be finalised. As Joe Caputo, the Chairperson of the Federation of Ethnic Communities’ Councils of Australia (FECCA), said on 30 September 2016: ‘The waiting lists for those visas are [so] obnoxiously long, that often people die waiting for their visas’”: Refugee Council of Australia, “Addressing the Pain of Separation for Refugee Families,” Nov. 2016, at 6. “Until recently, [Immigration and Naturalization Service] officials were estimating that it could take as many as 20 more years to process thousands of Salvadorans and Guatemalans . . . who fled their homelands in the 1980s and have lived for years in legal limbo . . . The hardest moment [for Salvadoran refugee Juana Fuentes] occurred in 1996, when her daughter, who lived with her grandmother, needed a stomach operation. Intensely worried, Fuentes considered going back to El Salvador. ‘I could go to the operation,’ Fuentes said. ‘But then I couldn’t come back . . . ’ The daughter tried to obtain a visa to visit her in Washington but was turned down”: M. Sheridan, “For Many Seeking Asylum, a Long Wait; Immigration and Naturalization Service Pledges Faster Processing of Cases,” Washington Post, Jan. 17, 2002, at T-09. “Member States may require the sponsor to have stayed lawfully in their territory for a period not exceeding two years, before having his/her family members join him/her. By way of derogation, where the legislation of a Member State relating to family reunification in force on the date of adoption of this Directive takes into account its reception capacity, the Member State may provide for a waiting period of no more than three years between submission of the application for family reunification and the issue of a residence permit to the family members”: EU Family Reunification Directive, at Art. 8.

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and are no longer eligible for admission,2095 parents die, or marital relationships break down under the strain of separation. Even once admitted to a state of refuge, family unity may on occasion be forcibly disrupted by the application of formal state policy. For example, hundreds of male refugees from Bosnia and Croatia were taken from their families in informal conscription “raids” conducted by the Serbian government during the mid-1990s.2096 Government-backed military recruiters in Kenya similarly lured young Somalis – including boys under eighteen – from refugee camps to fight extremists in their home country.2097 Parents who sought to find their sons “were not able to do so because they lack Kenyan government permission to leave the camps.”2098 Another extreme example was the en masse detention and expulsion in 2006 of Burundian and Rwandan refugees by Tanzanian forces,2099 forcing those who had married Tanzanian 2095

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Policies giving rise to this effect have been identified in Sweden and Austria (UNHCR and Council of Europe, “Unaccompanied and Separated Asylum-Seeking and Refugee Children turning Eighteen: What to Celebrate?” Mar. 2014, at 21), as well as Finland and the Netherlands (Costello, “Family Reunification,” at 36–37). “The Serbian Ministry of the Interior ran the conscription-by-force operation, with assistance from the Yugoslav army and . . . [sometimes] with that of the military police from Krajina. Serb refugees from Bosnia and Croatia have been the main targets of the mass conscription . . . Men have been taken off the streets, from farmers’ markets, restaurants and university dormitories; they have been taken off buses, from work, even from high school proms”: Humanitarian Law Center, “Spotlight Report No. 18: The Conscription of Refugees in Serbia” (1995), at 1. Forcible conscription has also been a risk for Liberian refugees in Guinea: Médecins Sans Frontières USA, “A Voice from the Field: Liberian Refugees Pay a High Price for Crossing into Guinea” (Dec. 2002); and for refugees in Pakistan living near the border with Afghanistan: Human Rights Watch, “Letter to General Pervez Musharraf,” Oct. 26, 2001. Human Rights Watch, “Kenya: Stop Recruitment of Somalis in Refugee Camps,” Oct. 22, 2009. Ibid. “Between May 2006 and May 2007, Tanzania expelled roughly 15,000 Rwandans and several thousand Burundians including some registered refugees, some of whom had lived in Tanzania since the early 1960s. Officials reported that the deportees had declined offers of permanent residence or citizenship. According to the US State Department, UNHCR and the Tanzanian Government ‘strongly encouraged’ Burundian and Congolese refugees to repatriate, by closing 20 schools in the camps and stopping refugee income projects. During the year, five camps closed and 38,300 Burundian refugees and 19,500 Congolese repatriated with UNHCR assistance”: US Committee for Refugees and Immigrants, World Refugee Survey 2008: Tanzania, June 19, 2008. According to Human Rights Watch, Tanzanian officials also targeted persons who had naturalized: “Tanzanian soldiers, police and militia have beaten and threatened people whom they wanted to expel and have looted and destroyed their property. In some places, these roundups have resulted in parents being separated from children, including infants being separated from their mothers. In addition, police have confiscated and destroyed documents proving that the targeted persons were naturalized Tanzanian citizens”: Human Rights Watch, “Tanzania: Expulsions Put Vulnerable People at Risk,” May 8, 2007.

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citizens to leave their spouses and children behind.2100 And in the United States, refugee children have been sent to separate detention facilities – sometimes hundreds of miles from their parents – while their claims were being assessed.2101 Less egregiously, family unity may also be adversely affected by host country policies which are simply not carefully designed or administered. For example, families may become permanently separated by policies designed to guard against “marriages of convenience,” as when a state requires spouses to reside under the same roof following entry into the country of refuge.2102 In such circumstances, the failure to account for such issues as shortage of available housing, employment location, or health issues as possible grounds for separate residences risks unduly 2100

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“Burundi Refugee Families Split Up,” BBC, Aug. 14, 2006; see also “Expelled Burundians are Illegal Immigrants, Government says,” IRIN News, Aug. 16, 2006. The change in policy, which previously permitted the detention of minors together with their parents, stemmed from an announcement by US Attorney General Jeff Sessions to subject persons arriving irregularly – including refugee claimants – to criminal prosecution: A. Jenkins, “Jeff Sessions: Parents and Children Illegally Crossing the Border will be Separated,” Time, May 7, 2018. Under the policy, “[a]nyone who crosses the border illegally is subject to federal criminal prosecution. As is the case in criminal proceedings – regardless of the immigration status of the criminal offender – the individual being prosecuted will be transferred to federal criminal custody for breaking United States law. Therefore, families with children that enter into the United States illegally will be separated when the parent is transferred to federal custody for breaking United States law”: Statement by Health and Human Services Deputy Secretary on Unaccompanied Alien Children Program, May 28, 2018, www.hhs.gov/about/news/2018/05/28/ statement-hhs-deputy-secretary-unaccompanied-alien-children-program.html, accessed Feb. 20, 2020. While the officially stated aim of the policy was to address the trafficking of minors, comments by authorities confirm the use of family separation as a “tough deterrent” and “[a] much faster turnaround on asylum seekers”: Transcript: White House Chief of Staff John Kelly’s Interview with NPR, May 11, 2018; see also J. Hirschfeld and M. Shear, “How Trump came to Enforce a Practice of Separating Migrant Families,” New York Times, June 16, 2018. The family separation policy was in principle suspended on June 20, 2018 (www.whitehouse.gov/presidential-actions/affording-congress-opportunity-address-fam ily-separation/, accessed Feb. 20, 2020). But an exception allowing family separation where there is a “determination that the parent is unfit or presents a danger to the child” has been aggressively relied upon to separate a further 1,100 families since then: J. Washington, “The Government has Taken at Least 1,100 Children from their Parents since Family Separations Officially Ended,” The Intercept, Dec. 9, 2019. In Belgium, for instance, “one of the conditions for family reunification is that the family member who joins a sponsor must come and live together (under the same roof) as the sponsor. The right of residence of the family member may be withdrawn, within five years following the granting of the residence right, if the family member doesn’t live together with the sponsor anymore”: European Migration Network, “Ad-hoc Query on Family Migration: Not Living Together as a Possible Ground for Withdrawing the Right of Residence of Family Members,” July 5, 2017. In contrast, Austria, the Czech Republic, Italy, Lithuania, Luxembourg, Slovenia, and the United Kingdom are among states that do not oblige beneficiaries of family reunification to reside with their sponsors, though some take beneficiaries’ physical residence into account in determining the existence of a bona fide marriage: ibid.

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separating families whose relationships are otherwise intact.2103 Bureaucratic interference with family unity may also follow from the mechanistic administration of superficially reasonable policies. At the Ukwimi refugee settlement in Zambia, even close family members were prevented from living near each other by the rigid application of a policy that land parcels should be allocated strictly according to time of arrival.2104 Those processed for resettlement elsewhere have also faced barriers to their continued union, as demonstrated by the availability of relocation overseas to Bhutanese refugees in Nepal, but not to their Nepalese citizen spouses.2105 And while refugee families at Australia’s offshore processing center in Nauru are in principle eligible for resettlement to the United States, those with relatives receiving medical care on the Australian mainland face the threat of permanent separation.2106 Recommendation “B”, Final Act of the Conference of Plenipotentiaries The Conference, [c]onsidering that the unity of the family, the natural and fundamental group of society, is an essential right of 2103

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States taking these issues into account include Croatia, Estonia, France, Germany, and the Netherlands: ibid. “[O]ne refugee woman commented that when she came to Ukwimi, the lorry was full, so that her mother, father, four uncles and two brothers ended up in different villages”: R. Black and T. Mabwe, “Planning for Refugees in Zambia: The Settlement Approach to Food Self-Sufficiency,” (1992) 14(1) Third World Planning Review 14. While Bhutanese refugees are in principle eligible for resettlement to seven countries – the United States, Canada, Australia, New Zealand, the Netherlands, Denmark, and Norway – their Nepalese spouses are not: “Heartache for Wives of Bhutanese Refugees,” IRIN News, July 2, 2009. At the core of the conflict is Australia’s suspension of resettlement eligibility for those who travel to the mainland for medical treatment: “Dutton said the government’s policy was that nobody brought to Australia from offshore for medical treatment could be considered for resettlement in the United States. ‘We have been clear on people who have received medical advice here: it was the reality for people on Nauru that if people left and came to Australia then consideration of their file would be suspended until they returned back to Nauru’”: B. Doherty, “Peter Dutton Defends Nauru Policy after Refugees Told to Separate from Family,” Guardian, Dec. 6, 2017. In the case of an offshore refugee whose wife was flown to Australia to give birth and who had not yet returned due to medical reasons, “[h]e has been told by the ABF [Australian Border Force] that he has two choices: either separate from his wife and relinquish all rights to his child in order to apply for resettlement in the US as a single man; or bring his family, including his Australian-born child, to Nauru to apply for a chance – but with no guarantee – of American resettlement together. The US has, so far, preferred to take single people rather than families for its resettlement places and Shirmohamadi’s wife has been advised by doctors not to return to Nauru because of ongoing complex health issues . . . Several department sources, and sources on Nauru, have confirmed to the Guardian that it is ‘unofficial policy’ to use family separation as a coercive measure to encourage refugees to agree to return to Nauru, or even to abandon their protection claims altogether. The department has said in public statements that families are separated to keep the number of people being brought to Australia as low as possible”: B. Doherty, “Border Force Tells Nauru Refugees to Separate from Family if they want to Settle in US,” Guardian, Dec. 5, 2017.

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the refugee, and that such unity is constantly threatened, and [n]oting with satisfaction that, according to the official commentary of the Ad Hoc Committee on Statelessness and Related Problems the rights granted to a refugee are extended to members of his family, [r]ecommends Governments to take the necessary measures for the protection of the refugee’s family, especially with a view to: (1) [e]nsuring that the unity of the refugee’s family is maintained particularly in cases where the head of the family has fulfilled the necessary conditions for admission to a particular country, [and] (2) [t]he protection of refugees who are minors, in particular unaccompanied children and girls, with special reference to guardianship and adoption. Civil and Political Covenant, Art. 17 No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks. Civil and Political Covenant, Art. 23(1)–(2) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State. The right of men and women of marriageable age to marry and to found a family shall be recognized. Civil and Political Covenant, Art. 24(1) Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State. Economic, Social and Cultural Covenant, Art. 10(1) The States Parties to the present Covenant recognize that . . . [t]he widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children . . . The drafters of the Refugee Convention assumed that the family members of a refugee would benefit from the protection of the Refugee Convention, even if not able themselves to show a “well-founded fear of being persecuted.” Under earlier refugee accords, there had been a consistent pattern of assimilating family members to the “head of the family” for purposes of defining

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entitlement to the benefits of refugee status.2107 That practice was affirmed and broadened by the Conference of Plenipotentiaries, but only as a commitment in principle, not as a matter of clearly binding law. Specifically, the Report of the Ad Hoc Committee observed that “[m]embers of the immediate family of a refugee should, in general, be considered as refugees if the head of the family is a refugee as here defined. Also, such members are to be regarded as refugees if the conditions set forth . . . apply to them, even if the head of the family is not a refugee.”2108 This view not only affirmed traditional practice, but moreover eliminated the possibility of applying the notion of “family unity with a vengeance.” That is, the novation of the Ad Hoc Committee’s formulation was the ability of a dependent family member to claim refugee status in his or her own right, whether or not the “head of the family” was entitled to refugee status.2109 Yet it was subject to no formal debate or discussion in the Ad Hoc Committee, with the result that no relevant article was proposed for the Convention itself. At the Conference of Plenipotentiaries, however, a declaration was inserted into the Final Act of the Conference. On the initiative of the Holy See, the Conference agreed without dissent to recommend that governments take “the necessary measures for the protection of the refugee’s family especially with a view to . . . [e]nsuring that the unity of the refugee’s family is maintained.”2110 They expressly affirmed the “essential right of the refugee” to family unity, and endorsed the understanding of that principle stated by the Ad Hoc Committee.2111 This declaration is a powerful, if non-binding, affirmation of the responsibility of states to avoid actions that might disturb the unity of a refugee’s family. The language originally proposed2112 was twice strengthened in order to avoid any impression of diluting the “categorical view of the Ad Hoc Committee that governments were under an obligation to take such action in respect of the refugee’s family . . . [I]t would be regrettable if governments were to take the 2107

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Even as the approach of refugee law became more individualized with the advent of the IRO Constitution, respect for family unity continued. “[F]or reasons of equity as well as administrative convenience, families – not individuals – were considered the basic units with respect to determining who [was] within the Organization’s mandate. Thus, if the head of a family was found to be within (or without) the mandate, the members of his family were also so considered, unless they fell under some constitutional provisions not applicable to the head of the family”: Grahl-Madsen, Status of Refugees I, at 413. “Comments of the Committee on the Draft Convention relating to the Status of Refugees,” Annex II to Ad Hoc Committee, “First Session Report,” at 2. This aligns with the finding of the Court of Justice of the European Union that there is nothing to “preclude several family members . . . from each lodging his or her own application for international protection, nor from one of them lodging his or her own application also on behalf of a minor family member”: Nigyar Rauf Kaza Ahmedbekova et al. v. Bulgaria, Dec. No. C-652/16 (CJEU, Oct. 4, 2018), at [55]. “Comments of the Committee on the Draft Convention relating to the Status of Refugees,” Annex II to Ad Hoc Committee, “First Session Report,” at 2. See text of Recommendation “B” at note 2106. 2112 UN Doc. A/CONF.2/103.

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action therein proposed only when they considered that circumstances enabled them to do so.”2113 Indeed, at least the German representative was of the view that the responsibility of states was not simply to avoid disrupting family unity, but also to facilitate the reunion of divided families.2114 Yet it is also undeniable that – for reasons not explained by the drafters – they viewed the issue of the responsibility to respect family unity as “naturally not of a contractual nature.”2115 The High Court of Australia has thus accurately determined that a domestic system which considers, but does not guarantee, the admission of a refugee’s spouse and children amounts to “implementation in Australian law of Recommendation B . . . [that goes] beyond observance of the international obligations imposed by the Refugees Convention.”2116 Despite its essentially hortatory nature,2117 Recommendation B has inspired many resolutions of the UNHCR’s Executive Committee. In particular, the centrality of the family has been said to require that “family unity should be respected,”2118 “maintained,”2119 and “protected.”2120 There should be a “prioritization of family unity issues at an early stage in all refugee operations,”2121 2113

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Statement of Mr. Hoare of the United Kingdom, UN Doc. A/CONF.2/SR.34, July 25, 1951, at 7. The language had earlier been strengthened at the suggestion of Mr. Robinson of Israel, ibid. at 6. “He felt it was appropriate that the Conference should emphasize the principle of the unity of the refugee’s family, a principle of particular importance in a country like Germany where, by force of political circumstance, many German families had been split asunder. The German Government was making every effort to facilitate the reunion of such families”: Statement of Mr. von Trutzschler of the Federal Republic of Germany, ibid. at 5–6. Statement of Msgr. Comte of the Holy See, ibid. at 4. Re Minister for Immigration and Multicultural and Indigenous Affairs, ex parte Applicant S134/2002, (2003) 195 ALR 1 (Aus. HC, Feb. 4, 2003). When this case was reviewed by the United Nations Human Rights Committee, however, it was determined that “to separate a spouse and children arriving in a State from a spouse validly resident in a State may give rise to issues under articles 17 and 23 of the Covenant”: Bakhtiyari v. Australia, HRC Comm. No. 1069/2002, UN Doc. CCPR/C/79/D/1069/2002, decided Oct. 29, 2003, at [9.6]. See discussion of relevant Covenant obligations at note 2132 ff. “The 1951 Convention does little more than recommend measures to ensure family unity and protection”: Goodwin-Gill and McAdam, Refugee in International Law, at 475. Nonetheless the European Court of Justice has determined that “it must be found that . . . the possibility of granting refugee status or subsidiary protection status . . . on account of [the applicant’s] refugee status would, due to the need to maintain the family unity of those concerned, be consistent with the rationale of international protection underlying the grant of that status”: Nigyar Rauf Kaza Ahmedbekova et al. v. Bulgaria, Dec. No. C-652/16 (CJEU, Oct. 4, 2018), at [73]. UNHCR Executive Committee Conclusion No. 22, “Protection of Asylum-Seekers in Situations of Large-Scale Influx” (1981), at [II(B)(2)(h)]. UNHCR Executive Committee Conclusion No. 85, “Conclusion on International Protection” (1998), at [(v)]. UNHCR Executive Committee Conclusion No. 88, “Protection of the Refugee’s Family” (1999), at [(b)]. Ibid. at [(b)(iv)].

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and “all action taken on behalf of refugee children must be guided by the principle of the best interests of the child as well as by the principle of family unity.”2122 And of most direct relevance to the question of the admission of family members, the Executive Committee has [u]nderline[d] the need for the unity of the refugee’s family to be protected, inter alia by . . . provisions and/or practice allowing that when the principal applicant is recognized as a refugee, other members of the family unit should normally also be recognized as refugees, and by providing each family member with the possibility of separately submitting any refugee claims that he or she may have.2123

Beyond the expectation that family members will be assimilated to the refugee for purposes of protection, “every effort should be made to ensure the reunification of separated refugee families.”2124 States have been “exhort[ed]” to pursue family reunification “in a positive and humanitarian spirit, and without delay,”2125 and even to “consider[] . . . liberal criteria in identifying those family members who can be admitted, with a view to promoting a comprehensive reunification of the family.”2126 Most generally, the Executive Committee has called upon states to consolidate their procedures for family unity and reunification in a “legal framework to give effect at the national level to a right to family unity for all refugees, taking into account the human rights of the refugees and their families.”2127 But because the Refugee Convention does not impose clear duties with regard to family unity, the locus of attention has sensibly been international human rights law.2128 The pervasively ratified Convention on the Rights of the Child, for example, prohibits the separation of children from their parents “except when competent authorities subject to judicial review determine, in accordance with the applicable law and procedures, that such separation is necessary for the best interests of the 2122 2123

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UNHCR Executive Committee Conclusion No. 47, “Refugee Children” (1987), at [(d)]. UNHCR Executive Committee Conclusion No. 88, “Protection of the Refugee’s Family” (1999), at [(b)(iii)]. To similar effect, see UNHCR Executive Committee Conclusion No. 85, “Conclusion on International Protection” (1998), at [(v)]. UNHCR Executive Committee Conclusion No. 24, “Family Reunification” (1981), at [1]. UNHCR Executive Committee Conclusion No. 85, “Conclusion on International Protection” (1998), at [(w)]. UNHCR Executive Committee Conclusion No. 88, “Protection of the Refugee’s Family” (1999), at [(b)(ii)]. UNHCR Executive Committee Conclusion No. 85, “Conclusion on International Protection” (1998), at [(x)]. For a very helpful analysis of both refugee-specific and general human rights obligations, see F. Nicholson and UNHCR, “The Right to Family Life and Family Unity of Refugees and Others in need of International Protection and the Family Definition Applied,” Jan. 2018.

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child.”2129 Pobjoy correctly characterizes this obligation as providing “an unprecedented level of protection . . . The unambiguous limitation in art. 9 makes plain that no public interest, including immigration control measures, can be invoked to justify the separation of a parent and child.”2130 The practice in the United States of sending refugee children to separate detention facilities while their claims are being evaluated – sometimes hundreds of miles from their parents2131 – is thus clearly in breach of this duty. More generally, both Covenants affirm the central place of the family in international law,2132 and require governments to take affirmative legislative steps to “protect” the family.2133 It is also clear that refugees may not be denied protection of their familial rights on grounds of their status as non-citizens: The Covenant [on Civil and Political Rights] does not recognize the right of aliens to enter or reside in the territory of a State party. However, in certain circumstances an alien may enjoy the protection of the Covenant in relation to entry or residence, for example, when considerations of . . . respect for family life arise . . . [Non-citizens] may not be subjected to arbitrary or unlawful interference with their privacy, family, home, or correspondence [emphasis added].2134

But what relationships are comprised within a “family”? For many refugees, the challenge is that an asylum country does not recognize their families2135 – for 2129

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Rights of the Child Convention, at Art. 9(1). The right has been explicitly determined to apply without “any discrimination on the basis of the status of the child as being unaccompanied or separated, or as being a refugee, asylum-seeker or migrant”: UN Committee on the Rights of the Child, “General Comment No. 6: Treatment of Unaccompanied and Separated Children Outside their Country of Origin,” UN Doc. CRC/GC/2005/6, Sept. 1, 2005, at [18]. Pobjoy, Child in Refugee Law, at 70. 2131 See text at note 2101. Civil and Political Covenant, Art. 23(1); Economic, Social and Cultural Covenant, Art. 10(1). No independent analysis is made here of the latter provision since “[t]he CESCR has seldom addressed the protection of the family in an immigration context. Reference may be made instead to the [Human Rights Committee’s] practice under Articles 17 . . . 23 . . . and 13 of the ICCPR, provisions of the [Convention on the Rights of the Child] and principles of general international law”: Saul, ICESCR Commentary, at 743. Civil and Political Covenant, Arts. 17(2), 23(1), 23(4), and 24(1); Economic, Social and Cultural Covenant, Art. 10(1). UN Human Rights Committee, “General Comment No. 15: The Position of Aliens under the Covenant” (1986), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [5], [7]. See also UN Human Rights Committee, “General Comment No. 17: Rights of the Child” (1989), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [5]: “The Covenant requires that children should be protected against discrimination on any grounds . . . Reports by States parties should indicate how legislation and practice ensure that measures of protection are aimed at removing all discrimination in every field . . . particularly as between children who are nationals and children who are aliens.” “It is this absence of a cross-cultural definition of ‘family’ in international law that makes the right to family life (including family unity and family reunifications) illusory for migrants, and the right to respect for family life the subject of constant judicial

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example, the family of a refugee in a polygamous marriage or same-sex relationship, or an extended refugee family seeking protection from a society in which the nuclear family is the norm.2136 The Human Rights Committee has essentially conceded the impossibility of arriving at a universal definition of family, and determined instead only that “the objectives of the Covenant require that . . . this term be given a broad interpretation to include all those comprising the family as understood in the society of the State party concerned.”2137 This discretion is moreover only minimally constrained by other duties under international law. First, there is a presumptive duty of states arising from Art. 24 of the Covenant,2138 significantly amplified by the Convention on the Rights of the Child,2139 to recognize children under the age of eighteen as part of the parents’

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intervention”: H. Lambert, “Family Unity in Migration Law: The Evolution of a More Unified Approach in Europe,” in V. Chetail and C. Bauloz eds., Research Handbook on International Law and Migration 194 (2014) (Lambert, “Family Unity”), at 201. “A stricto sensu universality in international law hardly exists. There is always room for variations, and this is even more the case when it comes to culturally conditioned institutions, such as family. The differences from one region to another can be so big that what is normal and, thus, allowed in one society (e.g. a polygamous marriage), may be strongly disapproved of and legally forbidden somewhere else”: Fourlanos, Sovereignty, at 92. On the related issue of the need for flexibility in the documentation of family relationships, see the helpful approach adopted by the Supreme Court of Ireland in Hassan and Saeed v. Minister for Justice, Equality, and Law Reform, [2013] IESC 8 (Ir. SC, Feb. 20, 2013) (relating specifically to alternative means of verifying a marriage). UN Human Rights Committee, “General Comment No. 16: Right to Privacy” (1988), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [5]. “Article 24 . . . entails the adoption of special measures to protect children . . . The Covenant requires that children should be protected against discrimination on any grounds such as . . . national or social origin, property or birth . . . Reports by States parties should indicate how legislation and practice ensure that measures of protection are aimed at removing all discrimination in every field . . . particularly as between children who are nationals and children who are aliens”: UN Human Rights Committee, “General Comment No. 17: Rights of the Child” (1989), UN Doc. HRI/ GEN/1/Rev.7, May 12, 2004, at [1], [5]. Schabas thus suggests that “[e]very child within a State party’s sovereign territory has a right as against this State to acquire nationality. This right, of course, comes into play only in a subsidiary manner, i.e., when the child does not already have a claim – e.g. due to filiation or to a declaration by his or her parents – to some other nationality”: Schabas, Nowak’s CCPR Commentary, at 695. Notably, in considering the deportation of the parent of an Australian-born child, Justice Gaudron of the High Court of Australia commented that “it is arguable that citizenship carries with it a common law right on the part of children and their parents to have a child’s best interest taken into account, at least as a primary consideration, in all discretionary decisions by governments, and government agencies which directly affect that child’s individual welfare, particularly decisions which affect children as dramatically and as fundamentally as those involved in this case”: Minister for Immigration and Ethnic Affairs v. Teoh, (1995) 183 CLR 273 (Aus. HC, Apr. 7, 1995), per Gaudron J. at 304. “States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests . . . [A]pplications by a child or his

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family unit.2140 Second, the Committee on the Rights of the Child has adopted the view that the presumptive duty to avoid the separation of children from their parents “must be interpreted in a broad sense to include biological, adoptive or foster parents or, where applicable, the members of the extended family or community as provided for by local custom,”2141 and that the duty extends “to any person holding custody rights, legal or customary, primary caregivers, foster parents and persons with whom the child has a strong personal relationship.”2142 And third, it may also be argued that the agreement in principle of state parties to the International Covenant on Economic, Social and Cultural Rights that there is a special responsibility to meet the needs of aged family members2143 should be read to compel the inclusion of such persons in the definition of the family unit. Beyond these limited constraints, however, the asylum state has broad autonomy to interpret who qualifies as a member of a “family as understood in the society of the State party concerned”2144 and is thus entitled to “live together.” The duty under international human rights law is simply to apply

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or her parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner. States Parties shall further ensure that the submission of such a request shall entail no adverse consequences for the applicants and for the members of their family”: Rights of the Child Convention, at Arts. 9(3) and 10(1). “[T]he Covenant does not indicate the age at which [a child] attains his majority. This is to be determined by each State party in the light of the relevant social and cultural conditions. In this respect, States should indicate in their reports the age at which the child attains his majority in civil matters and assumes criminal responsibility. States should also indicate the age at which a child is legally entitled to work and the age at which he is treated as an adult under labour law . . . However, the Committee notes that the age for the above purposes should not be set unreasonably low and that in any case a State party cannot absolve itself from its obligations under the Covenant regarding persons under the age of 18, notwithstanding that they have reached the age of majority under domestic law”: UN Human Rights Committee, “General Comment No. 17: Rights of the Child” (1989), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [4]. UN Committee on the Rights of the Child, “General Comment No. 14: The Right of the Child to have His or Her Best Interests taken as a Primary Consideration,” UN Doc. CRC/ C/GC/14, May 29, 2013, at [59]. See e.g. E v. Netherlands, Dec. No. C-635/17 (CJEU, Mar. 13, 2019). UN Committee on the Rights of the Child, “General Comment No. 14: The Right of the Child to have His or Her Best Interests taken as a Primary Consideration,” UN Doc. CRC/ C/GC/14, May 29, 2013, at [60]. “State parties should make all the necessary efforts to support, protect and strengthen the family and help it, in accordance with each society’s system of cultural values, to respond to the needs of its dependent ageing members”: UN Committee on Economic, Social and Cultural Rights, “General Comment No. 6: The Economic, Social and Cultural Rights of Older Persons” (1995), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [31]. UN Human Rights Committee, “General Comment No. 16: Right to Privacy” (1988), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [5].

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the same definition of “family” to all persons without discrimination,2145 including when making decisions regarding the reunification of refugee families.2146 This duty to treat all families the same is thus infringed by the provision of European Union law authorizing the differential treatment of families formed before arrival to seek asylum and those formed after protection has been claimed.2147 On the other hand, international human rights law cannot be relied upon to contest the EU’s rule that family reunification need not be granted to a second or subsequent spouse in a polygamous marriage2148 since such marriages are not allowed in the Union.2149 That said, the Irish Supreme Court showed remarkable sensitivity in adopting the view that “in the area of immigration, to refuse admission to a spouse simply because the marriage was potentially polygamous would damage the policy of family reunification with the aim of successful integration into the State.”2150 Responding to the petition of a Lebanese refugee who had validly married two women in his country of origin – both marriages subsisting, and both having produced children – the Court found that the one wife with whom the refugee intended to live was entitled to entry;2151 that all of the refugee’s children, born of either wife, were similarly to be admitted;2152 and even recommended that the second wife be considered for discretionary entry, though not as a spouse.2153

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This follows from the duty to ensure the equal protection of the law without discrimination to all persons under a state’s jurisdiction pursuant to Art. 26 of the Covenant. See generally Chapter 1.5.5. “[T]he concept of the family may differ in some respects from State to State, and even from region to region within a State, and it is therefore not possible to give the concept a standard definition. However . . . when a group of persons is regarded as a family under the legislation and practice of a State, it must be given the protection”: UN Human Rights Committee, “General Comment No. 19: The Family” (1990), UN Doc. HRI/GEN/1/ Rev.7, May 12, 2004, at [2]. Comparable deference to national understandings is evident in, for example, UN Committee on the Elimination of Discrimination Against Women, “General Recommendation No. 21: Equality in Marriage and Family Relations” (1994), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [13]: “The form and concept of the family can vary from State to State, and even between regions within a State. Whatever form it takes, and whatever the legal system, religion, or custom within the country, the treatment of women . . . must accord with the principles of equality and justice for all people.” See text at note 2085. See also UNHCR and Odysseus Network, “Discussion Paper Prepared for the Expert Roundtable on the Right to Family Life and Family Unity in the Context of Family Reunification,” Dec. 4, 2017, at [42]. See text at note 2084. Indeed, polygamous marriages have been determined to breach the duty of equality under Art. 3 of the Civil and Political Covenant: UN Human Rights Committee, “General Comment No. 28: Article 3 (The Equality of Rights between Men and Women)” (2000), UN Doc. CCPR/C/21/Rev.1/Add.10, at [24]. HAH v. SAA, [2017] IESC 40 (Ir. SC, June 15, 2017), at [107]. 2151 Ibid. at [105]. Ibid. at [118]. 2153 Ibid. at [118].

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UNHCR has argued for a broader approach to family unity, urging states to give “positive consideration to the inclusion of family members – regardless of age, level of education, marital status or legal status – whose economic and social viability remains dependent on the nuclear family.”2154 This approach has elicited some support in the Human Rights Committee2155 and in national and regional courts. The Supreme Court of Ireland, for example, called for the admission of a Somali refugee’s sisters and brothers as part of her family: “[i]n light of the fact that special and enhanced application status is given to dependent family members, the weight to be attached to the general entitlement of the State to exercise immigration control must be significantly less in a case such as this than in an ordinary case.”2156 And in an advisory opinion, the Inter-American Court of Human Rights advocated an even more inclusive understanding of the scope of family protection at international law: [T]here is no single model for a family. Accordingly, the definition of family should not be restricted to the traditional notion of a couple and their children, because other relatives may also be entitled to the right to family life, such as uncles and aunts, cousins, and grandparents, to name but a few of the possible members of the extended family, provided they have close personal ties. In addition, in many families the person or persons in charge of the legal or habitual maintenance, care and development of a child are not the biological parents. Furthermore, in the migratory context, “family ties” may have been established between individuals who are not necessarily family members in the legal sense, especially when, as regards children, they have not been accompanied by their parents in these processes.2157 2154 2155

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UNHCR, Resettlement Handbook (2011), at 180. For example, in its Concluding Observations on Austria’s periodic report, the Human Rights Committee noted that it was “concerned that the [Austrian legislation] foresees family reunification only for nuclear family members . . . and that the exclusion of dependent adult children, minor orphan siblings and other persons with whom persons granted international protection enjoyed family life in the country of origin can result in hardship situations (arts. 13, 17, and 23(1))”: “Concluding Observations of the Human Rights Committee: Austria,” UN Doc. CCPR/C/AUT/CO/4, Oct. 30, 2007, at [19]. The Committee has also insisted upon a context-specific approach to the definition of acceptable evidence of a family relationship: Nimo Mohamed Aden and Liban Muhammed Hassan v. Denmark, HRC Comm. No. 2351/2015, UN Doc. CCPR/C/126/ D/2531/2015, decided July 25, 2019, at [10.6]. AMS v. Minister for Justice and Equality, [2014] IESC 65 (Ir. SC, Nov. 20, 2014), at [7.15]. Rights and Guarantees of Children in the Context of Migration and/or in Need of International Protection (Advisory Opinion OC-21/14) (IACtHR, Aug. 19, 2014), at [22]. The same court has also determined that same-sex couples are included within the concept of a protected family: Riffo v. Chile (Merits Judgment), Ser. C No. 239 (Feb. 24, 2012). But see e.g. Secretary of State for the Home Department v. Aga, [2005] EWCA Civ 1574 (Eng. CA, Nov. 29, 2005), in which the Court gave short shrift to the argument of an individual who had arrived from Kosovo as a child refugee that he should not be subject

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Against the backdrop of this understanding of the scope of family life protected under the Covenant, the two key questions are, first, the nature of the duty to states to avoid disturbing family relationships and, second, whether and to what extent state parties must affirmatively enable the reunification of separated families.

4.6.1 Family Unity The most unambiguously framed protection of family unity is Art. 17 of the Civil and Political Covenant, which proscribes “arbitrary or unlawful interference with . . . family” and grants “[e]veryone . . . the right to the protection of the law against such interference or attacks.” As the Human Rights Committee has explained, the first component of the duty is that “[i]nterference by States can only take place on the basis of law,”2158 meaning that any interference with an individual’s family unity not carried out on the basis of legal authority is a violation of the Covenant. As such, both the Serbian break-up of refugee families from Bosnia and Croatia by informal conscription “raids” in which male family members were dragged away without any semblance of due process2159 and Tanzania’s en masse expulsion without any hearing of thousands of long-term refugees from Rwanda and Burundi, separating many of them from spouses and children,2160 amounted to violations of this aspect of the duty under Art. 17. Second, even if ostensibly conducted with legal authority, an interference with family is only lawful if it complies “with the provisions, aims and objectives of the Covenant.”2161 Kenya’s practice of backing recruiters to lure young Somali refugees – including many underage boys – to return to fight in their home country2162 was thus a serious breach of Art. 17, since it knowingly exposed the young recruits to loss of life.2163 When Kenyan authorities prevented distraught parents from leaving refugee camps to search for their sons, they again acted unlawfully – thereby exacerbating the intensity of their interference with family unity. Third, even if in principle authorized by and in accordance with law, actions that interfere with family unity are still prohibited by Art. 17 if they are “arbitrary.” Most obviously, an interference is arbitrary if it is “taken at the

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to the usual removal due to cessation of refugee status on the basis of his deep bond with his brother and sister-in-law who cared for him during several years in exile. “The term ‘unlawful’ means that no interference can take place except in cases envisaged by the law”: UN Human Rights Committee, “General Comment No. 16: Right to Privacy,” UN Doc. HRI/GEN/1/Rev.7, Apr. 8, 1988, at [3]. See text at note 2096. 2160 See text at note 2099. UN Human Rights Committee, “General Comment No. 16: Right to Privacy,” UN Doc. HRI/GEN/1/Rev.7, Apr. 8, 1988, at [3]. See text at note 2097. 2163 See generally Chapter 4.3.1.

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will and pleasure of some person who could not be called upon to show just cause for it.”2164 As the drafters of the Covenant insisted, “‘arbitrary’ clearly went beyond ‘unlawful’ and contained an element of ‘capriciousness.’”2165 The Human Rights Committee has, for example, determined that politically motivated family separation – specifically, to avoid interstate tension that might threaten bilateral aid – was arbitrary and thus in violation of Art. 17.2166 Under the jurisprudence of the Human Rights Committee, the main question to be addressed in the assessment of arbitrariness is whether the interference is “reasonable in the particular circumstances.”2167 The notion that an “unreasonable” interference with family is “arbitrary” has been relied upon, for example, to prevent the deportation of the family members of a refugee whose claim had not yet been finally determined.2168 In the case, the husband had initially been recognized as a Convention refugee, though the basis for that decision was under review. The Human Rights Committee determined that removal of the wife and children in such circumstances would amount to an arbitrary interference with family: Taking into account the specific circumstances of the case, namely the number and age of the children, including a newborn, the traumatic experiences Mrs. Bakhtiyari and her children would face if returned to Pakistan and the absence of arguments by the State party to justify removal in these circumstances, the Committee takes the view that removing Mrs. Bakhtiyari and her children without awaiting the final determination of Mr. Bakhtiyari’s proceedings would constitute arbitrary interference in the family of the authors, in violation of articles 17, paragraph 1, and 23, paragraph 1, of the Covenant.2169

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L. Rehof, “Article 12,” in A. Eide et al. eds., The Universal Declaration of Human Rights: A Commentary 187, at 190, quoting from the British representative, Mrs. Corbet. Schabas, Nowak’s CCPR Commentary, at 464. Patricia Angela Gonzalez v. Guyana, HRC Comm. No. 1246/2004, UN Doc. CCPR/C/98/ D/1246/2004, decided May 21, 2010, at [14.4]. This approach accords with the view that arbitrariness includes consideration of “inappropriateness”: Zeyad Khalaf Hamadie AlGertani v. Bosnia and Herzegovina, HRC Comm. No. 1955/2010, UN Doc. CCPR/C/109/ D/1955/2010, decided Nov. 1, 2013, at [10.3]. UN Human Rights Committee, “General Comment No. 16: Right to Privacy,” UN Doc. HRI/GEN/1/Rev.7, Apr. 8, 1988, at [4]. “Reasonableness” analysis can of course be risky, importing as it does significant space for subjective assessment: see e.g. ABM v. Minister for Justice and Equality, [2016] IEHC 449 (Ir. HC, July 29, 2016) in which the notion of “voluntary assumption of risk” was invoked to question the logic of a claim to family unity advanced by two individuals who became a couple at a time when they were aware that neither had durable long-term status in Ireland. Bakhtiyari v. Australia, HRC Comm. No. 1069/2002, UN Doc. CCPR/C/79/D/1069/2002, decided Oct. 29, 2003. Ibid. at [9.6].

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Nor even may states simply assert their right to enforce general immigration rules as a justification for separating family members. At least where there are “extraordinary circumstances” or “exceptional factors,”2170 ordinary immigration rules must yield to considerations of family unity: [T]here is significant scope for States parties to enforce their immigration policy and to require departure of unlawful persons. That discretion is, however, not unlimited and may come to be exercised arbitrarily in certain circumstances. In the present case, both [parents] have been in Australia [overstaying visitor’s/student visas] for over fourteen years. The authors’ [Australian citizen] son has grown in Australia from his birth 13 years ago, attending Australian schools as an ordinary child would and developing the social relationships inherent in that. In view of this duration of time, it is incumbent on the State party to demonstrate additional factors justifying the removal of both parents that go beyond the simple enforcement of its immigration law in order to avoid a characterization of arbitrariness.2171

As these decisions suggest, the fact-specific nature of the inquiry into unreasonableness means that Art. 17 will be most readily breached when a state’s interference with family unity follows from the rigid application of law or policy that ignores particularized needs and circumstances – for example, when seven resettlement states refused to even consider allowing the Nepalese spouses of Bhutanese refugees to accompany them to their new homes abroad.2172 Unacceptable rigidity is similarly evident in the decision by Australia and the United States that any refugee on Nauru selected for resettlement to the United States must abandon a spouse evacuated to Australia for medical reasons.2173 The refusal of Zambian authorities to take any account of family relationships in the assignment of refugees at Ukwimi to particular land parcels, insisting instead on an uncompromising application of a system of allocating plots based on the date of arrival, is similarly demonstrative of the refusal to take account of particular circumstances that taints even a system authorized by law as “arbitrary.”2174 Belgium’s automatic withdrawal of 2170

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Mohammed Sahid v. New Zealand, HRC Comm. No. 893/1999, UN Doc. CCPR/C/77/D/ 893/1999, decided Apr. 11, 2003, at [8.2]. Hendrik Winata v. Australia, HRC Comm. No. 930/2000, UN Doc. CCPR/C/72/D/930/ 2000, decided July 26, 2001, at [7.3]. The Committee has, however, insisted that the mere fact that minor children are citizens of the state seeking to deport is not sufficient in and of itself to render the removal of the parents arbitrary: Rajan and Rajan v. New Zealand, HRC Comm. No. 820/1998, UN Doc. CCPR/C/78/DR/820/1998, decided Aug. 6, 2003, at [7.3]. More generally, absent “extraordinary circumstances” the usual immigration rules are likely to prevail (“It is certainly unobjectionable under the Covenant that a State party may require, under its laws, the departure of persons who remain in its territory beyond limited duration periods”: Winata v. Australia, HRC Comm. No. 930/2000, UN Doc. CCPR/C/72/D/930/2000, decided July 26, 2001, at [7.3]). See text at note 2105. 2173 See text at note 2106. 2174 See text at note 2104.

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residence rights from a non-cohabiting refugee spouse – in contrast to practice in most other EU states that recognizes the possibility of extenuating circumstances such as health or employment issues that might make cohabitation unworkable2175 – also shows clearly the risk of arbitrariness that can follow from the failure to take account of particular circumstances. Much the same risk of arbitrary interference with family unity arises from the European Union’s authorization simply to ignore family relationships that arise postarrival.2176 The Human Rights Committee’s understanding of an “arbitrary” interference with privacy rights has at times included2177 not just an action that is capricious or which evinces a rigidity that fails to take account of particular needs and circumstances, but also an interference adjudged not to be proportionate: The Committee interprets the requirement of reasonableness to imply that any interference with privacy must be proportional to the end sought and be necessary in the circumstances of any given case.2178

In the case of a Somali national brought to Canada as the child of a refugee mother and who was convicted in Canada of several assaults and robberies, for example, the Committee found “that the interference with the author’s family life, which would lead to irreparably severing his ties with his mother and 2175 2176

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See text at note 2102. See note 2085. Indeed, the European Commission itself has insisted on the need for “more leniency . . . in recognition of the particular plight of refugees and the difficulties they often face in applying for family reunification”: European Commission, “Communication from the Commission to the European Parliament and the Council on guidance for application of Directive 2003/86/EC on the right to family reunification,” Doc. COM(2014)210 final, Apr. 3, 2014, at 21. In its relevant general comment, however, the Human Rights Committee makes no mention of proportionality. “The expression ‘arbitrary interference’ is also relevant to the protection of the right provided for in article 17. In the Committee’s view the expression ‘arbitrary interference’ can also extend to interference provided for under the law. The introduction of the concept of arbitrariness is intended to guarantee that even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances”: UN Human Rights Committee, “General Comment No. 16: Right to Privacy,” UN Doc. HRI/GEN/1/Rev.7, Apr. 8, 1988, at [4]. Toonen v. Australia, HRC Comm. No. 488/1992, UN Doc. CCPR/C/50/D/488/1992, decided Mar. 31, 1994, at [8.3]. “[R]egardless of its lawfulness, arbitrary interference contains elements of injustice, unpredictability and unreasonableness . . . In evaluating whether interference . . . by a State enforcement organ represents a violation of Art. 17, it must especially be reviewed whether, in addition to conformity with national law, the specific act of enforcement had a purpose that seems legitimate on the basis of the Covenant in its entirety, whether it was predictable in the sense of rule of law and, in particular, whether it was reasonable (proportional) in relation to the purpose to be achieved [emphasis added]”: Schabas, Nowak’s CCPR Commentary, at 465.

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sisters in Canada[,] would be disproportionate to the legitimate aim of preventing the commission of future crimes.”2179

4.6.2 Family Reunification As important as Art. 17 is as a means of contesting actions which disrupt family unity, the superficially less robust protection of Art. 23 of the Civil and Political Covenant may actually be of greater value to refugees2180 seeking to compel states to take affirmative steps to unify their families.2181 The key clause is in section 2, which requires states to recognize “[t]he right of men and women of marriageable age to marry and to found a family [emphasis added].” In its General Comment on Art. 23, the Human Rights Committee determined that [t]he right to found a family implies, in principle, the possibility to procreate and live together . . . [T]he possibility to live together implies the adoption of appropriate measures, both at the internal level and as the case may be, in cooperation with other States, to ensure the unity or 2179

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Jama Warsame v. Canada, HRC Comm. No. 1959/2010, UN Doc. CCPR/C/102/D/1959/ 2010, decided July 21, 2011, at [8.10]. Much the same approach was taken in Dauphin v. Canada, HRC Comm. No. 1792/2008, UN Doc. CCPR/C/96/D/ 1792/2008, decided July 28, 2009, at [8.4]. As a general matter, it has recently been suggested that “[s]eparating a family by deporting or removing a family member from a State party’s territory, or otherwise refusing to allow a family member to enter or remain in the territory, may amount to arbitrary or unlawful interference with family life. The Committees are of the view that the rupture of the family unit by the expulsion of one or both parents based on a breach of immigration laws related to entry or stay is disproportionate [emphasis added]”: UN Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families and UN Committee on the Rights of the Child, “Joint General Comment No. 4 on State Obligations regarding the Human Rights of Children in the Context of International Migration in Countries of Origin, Transit, Destination and Return,” UN Doc. CMW/C/GC/4 and CRC/C/GC/23, Nov. 16, 2017, at [28]–[29]. Beyond Art. 23 of the Civil and Political Covenant, applications for family reunification that involve children must be treated “in a positive, humane and expeditious manner”: Rights of the Child Convention, at Art. 10. In the European Union, the right of an unaccompanied child refugee to sponsor the admission of his or her family applies to an individual who was under age eighteen as of the date on which the asylum application was lodged: A and S v. Staatssecretaris van Veiligheid en Justitie, Dec. No. C-550/16 (CJEU, Apr. 12, 2018), at [64]. See Schabas, Nowak’s CCPR Commentary, at 634, 639: “As an institutional guarantee, Art. 23 differs from protection against interference with private and family life guaranteed by Art. 17. The claim possessed by the institution ‘family’ under Art. 23 to protection by society and the State is stronger than that in Art. 12 of the [European Convention on Human Rights], which merely sets forth the right to marry and found a family . . . [I]nstitutional guarantees always imply certain privileges on the part of the individuals affected by them. Since life together is an essential criterion for the existence of a family, members of a family are entitled to a stronger right to live together than other persons.” See also S. Joseph and M. Castan, The International Covenant on Civil and Political Rights: Cases, Materials, and Commentary (2013) (Joseph and Castan, ICCPR), at 667.

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reunification of families, particularly when their members are separated for political, economic or similar reasons [emphasis added].2182

Clearly, the sorts of forces which cause refugee families to become separated are paradigmatic examples of “political . . . or similar reasons.”2183 Refugee status manifestly precludes the family exercising its right to live together in the country of origin;2184 indeed, the Committee has determined that a refugee “cannot reasonably be expected to return to his country of origin”2185 in order to enjoy his or her right to family unity.2186 In practice, this usually means that measures to ensure the unity or reunification of refugee families must be taken by the state of asylum.2187 Drawing on this understanding that Art. 23(2) establishes the right of families to “live together,” the Human Rights Committee has determined that states are under a duty to take measures to “ensure the unity or reunification of [refugee] families.”2188 The question of when such affirmative efforts are sufficient will likely be measured in relation to the usual (and fungible) “reasonableness” standard,2189 meaning that a policy such as that of the 2182

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UN Human Rights Committee, “General Comment No. 19: The Family,” UN Doc. HRI/ GEN/1/Rev.7, July 27, 1990, at [5]. Indeed, “the risk of persecution may be such that the need for protection for family members is particularly stark”: ZN (Afghanistan) v. Entry Clearance Officer, [2010] UKSC 21 (UK SC, May 12, 2010), at [35]. The European Court of Human Rights has recognized the inability of refugee families to live together in the country of origin in e.g. Tuquabo Takle v. Netherlands, Dec. No. 60665/00 (ECtHR, Dec. 1, 2005), at [47]–[50]. Farag El Dernawi v. Libya, HRC Comm. No. 1143/2002, UN Doc. CCPR/C/98/D/1143/ 2002, decided July 20, 2007, at [6.3]. The European Court of Human Rights has determined that family reunification procedures must take account of the disruptions caused by the events that give rise to refugee status: Tanda-Muzinga v. France, Dec. No. 2260/10 (ECtHR, July 10, 2014), at [73]; Mugenzi v. France, Dec. No. 22251/07 (ECtHR, Jan. 10, 2012), at [52]. See e.g. Mohamed El-Hichou v. Denmark, HRC Comm. No. 1554/2007, UN Doc. CCPR/ C/99/D/1554/2007, decided July 22, 2010, at [7.4]–[8] (finding that Denmark, the country of residence for the father of a Moroccan boy with no remaining family in that country, had a duty under Art. 23 of the Covenant to admit the boy under the “very special circumstances” of the case); see also Patricia Angela Gonzalez v. Guyana, HRC Comm. No. 1246/2004, UN Doc. CCPR/C/98/D/1246/2004, decided May 21, 2010, at [14.4]. Indeed, the UK Supreme Court has opined that in the case of refugee and non-refugee relationships, if “there were nowhere else for them to go, it would be necessary to weigh up the ‘precariousness’ aspect against the extent to which the couple would, in fact, be able to support themselves”: R (MM Lebanon) v. Secretary of State for the Home Department, [2017] UKSC 10 (UK SC, Feb. 22, 2017), at [105]. UN Human Rights Committee, “General Comment No. 19: The Family,” UN Doc. HRI/ GEN/1/Rev.7, May 12, 2004, at [5]. This indirect approach to establishing a right to family is necessary because “none of [the rules of international human rights law] constitute a right to family reunification as such”: Lambert, “Family Unity,” at 196. “Problems with the positive obligation approach arise in establishing its scope. The point at which a State is obligated to act affirmatively to protect the right to family unity is unclear. Moreover, the interpretations of this notion also have a potential for ambiguity

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European Union that entitles refugees to sponsor the admission of their family members within three months of status recognition without regard to financial circumstances2190 is likely to be found acceptable.2191 Even the EU’s policy of denying family reunification where public security or public health concerns are raised is probably justifiable, so long as those notions are interpreted in line with international standards.2192 The potential breadth of the “public policy” exception, on the other hand, raises the specter of measures that border on infringement of the prohibition of arbitrary conduct, and which therefore could not be considered reasonable limitations.2193 One type of policy that likely infringes the duty to enable family reunification is the imposition of burdensome fees or other administrative requirements.2194 The Court of Justice of the European Union has insisted, for

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. . . Such standards leave much in the hands of individual judicial opinion”: C. Anderfuhren-Wayne, “Family Unity in Immigration and Refugee Matters: United States and European Approaches,” (1996) 8(3) International Journal of Refugee Law 347, at 380. See text at note 2088. In a cognate case on family reunification rules (but not involving refugees) the Court of Justice determined that “a waiting period cannot be imposed without taking into account, in specific cases, all the relevant factors,” including for example the best interests of children: European Parliament v. Council of the European Union, Dec. No C-540/03 (CJEU, June 27, 2006), at [99]. See text at note 2090. Compare Civil and Political Covenant, at Arts. 12(3), 19(3), 22(2). But as the Human Rights Committee has insisted, “[i]n the absence of clear explanation from the State party as to why the author constitutes a threat to the security of the country or why this information cannot be transmitted . . . the State party has failed to show that the interference with family life is justified by serious and objective reasons”: Zeyad Khalaf Hamadie Al-Gertani v. Bosnia and Herzegovina, HRC Comm. No. 1955/2010, UN Doc. CCPR/C/109/D/1955/2010, decided Nov. 1, 2013, at [10.9]. See also Mansour Leghaei v. Australia, HRC Comm. No. 1937/2010, UN Doc. CCPR/C/113/D/1937/ 2010, decided Mar. 26, 2015, at [10.5], insisting on respect for “due process of law” in such cases. With respect to the potential breadth of the traditional notion of ordre public, this being the French-language equivalent of “public policy,” see Chapter 1.4.4 at note 133; Chapter 5.1 at note 225; Chapter 5.2 at note 396; and Chapter 6.6 at note 1091. See e.g. GR v. Netherlands, Dec. No. 22251/07 (ECtHR, Jan. 10, 2012), at [55]. The European Court of Justice has found that unless the applicant fails to cooperate in documenting family status, “the lack of official documentary evidence of the family relationship and the potential implausibility of the explanations provided in this regard must be regarded as mere elements to be taken into account in the case-by-case assessment of all of the elements of the specific case and do not free the competent national authorities from the obligation . . . to take other evidence into account . . . [The fact that] documentary evidence [is] . . . lacking cannot be the sole reason for rejecting an application”: E v. Netherlands, Dec. No. C-635/17 (CJEU, Mar. 13, 2019), at [68]–[69]. Indeed, the duty of administrative assistance under Art. 25 of the Refugee Convention may require state parties actively to assist refugees to overcome documentary and other hurdles in the family reunification context. See UNHCR and Odysseus Network, “Discussion Paper Prepared for the Expert Roundtable on the Right to Family Life and

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example, that “the level at which those costs are determined must not aim, nor have the effect of, making family reunification impossible or excessively difficult.”2195 This understanding raises concerns about the practice of the United Kingdom to condition some refugee family reunification on demonstrated financial capacity, particularly since British rules direct that the earning capacity of sponsored family members or support available from third parties be excluded from that calculus.2196 Indeed, the latter practice recently came under criticism from the UK Supreme Court: [A] broader approach may be required . . . [Immigration officers] are entitled to take account of the Secretary of State’s policy objectives, but in judging whether they are met, they are not precluded from taking account of other reliable sources of earnings or finance . . . [T]here are aspects of the instructions to entry clearance officers which require revision.2197

Australia’s rules – requiring the payment of family sponsorship fees that can amount to tens of thousands of dollars in addition to the posting of bonds to ensure that family members’ needs are met2198 – even more clearly raise the real specter of being unreasonable impediments to the duty to enable refugee families to “live together.” Most susceptible of all to successful challenge are limitations imposed on the right to family reunification based strictly on an individual’s status.2199 Both New Zealand’s policy of imposing a three-year delay on family reunification for refugees who come as part of a “mass arrival”2200 and the Canadian refusal to allow family reunification for five years to refugees who are deemed to be

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Family Unity in the Context of Family Reunification,” Dec. 4, 2017, at [74]–[76]. On the nature of the duty of administrative assistance, see generally Chapter 4.10. Minister van Buitenlandse Zaken v. K and A, Dec. No. C-153/14 (CJEU, July 9, 2015), at [64], [71]. See note 2086. R (MM Lebanon) v. Secretary of State for the Home Department, [2017] UKSC 10 (UK SC, Feb. 22, 2017), at [100]–[101]. The Supreme Court had earlier taken a comparable position in relation to then-prevailing rules, asking “[a]re rich and devoted uncles (or, indeed, large supportive immigrant communities such as often assist those seeking entry) really to be ignored in this way?”: Mahad v. Entry Clearance Officer, [2009] UKSC 16 (UK SC, Dec. 16, 2009), at [19]. See note 2087. By way of analogy, the European Court of Justice has determined that “the imposition by such rules of a residence condition on a beneficiary of subsidiary protection status in receipt of welfare benefits is precluded . . . only where beneficiaries of subsidiary protection status are in a situation that is, so far as concerns the objective pursued by those rules, objectively comparable with the situation of third-country nationals legally resident in Germany on grounds that are not humanitarian or political or based on international law”: Kreis Warendorf v. Ibrahim Alo and Amira Osso v. Region Hanover, Dec. Nos. C443/14 and C-444/13 (CJEU, Mar. 1, 2016), at [61]. See text at note 2076.

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part of a group that has arrived irregularly2201 are status-based exclusions that likely fall afoul of Art. 23(2). Of particular concern, many persons who are in fact Convention refugees are nonetheless assigned “subsidiary protection” or other status by asylum countries, and denied full family reunification rights on that basis.2202 For example, Cyprus and Greece deny family reunification to all beneficiaries of subsidiary protection;2203 while Austria, Denmark, and Switzerland delay family reunification for those granted only “subsidiary protection” status.2204 The fairness of this status-based differentiation is particularly suspect where, as in the case of Germany, it was implemented contemporaneously with a sharp rise in the recognition of subsidiary protected, rather than full Convention refugee, status.2205 It might be thought that it would be more reasonable to deny or delay family reunification to refugees found entitled only to “temporary protected” status. After all, if the stay in the asylum country is short, the imperative to reunite families might be thought less strong. Yet despite its obvious connotation of limited duration, the “temporarily protected” label has in practice not been routinely indicative of the actual duration of the refugees’ stay in the asylum state.2206 To the contrary, many “temporarily protected” refugees have been compelled to remain in protection abroad for very long periods of time, even as some persons recognized as full Convention refugees have been able to repatriate in a short space of time.2207 A particularly clear example of this concern was the American delay of more than twenty years to process the claims of “temporarily protected” Guatemalan and Salvadoran refugees, during which time they 2201 2202

2203 2205

2206

2207

See text at note 2075. The European Commission has, however, insisted that “the [family reunification] directive [2003/86/EC] should not be interpreted as obliging [member states] to deny beneficiaries of temporary or subsidiary protection the right to family reunification”: European Commission, “Communication from the Commission to the European Parliament and the Council on guidance for application of Directive 2003/86/EC on the right to family reunification,” Doc. COM(2014)210 final, Apr. 3, 2014, at 24. See text at note 2080. 2204 See text at note 2079. See text at note 2078. In a case decided on Nov. 14, 2018, the Swedish Migration Court of Appeal determined that Sweden’s three-year delay before beneficiaries of subsidiary protection could seek family reunification was a disproportionate response to state concerns to reduce asylum numbers and was inconsistent with respect for family unity and the principle of the best interests of the child: M. Nyman, “Sweden – Migration Court of Appeal Rules in a Case of Family Reunification of Subsidiary Protection Beneficiary,” ELENA Weekly Legal Update, Nov. 17, 2018. “As the European Commission has noted, when subsidiary protection was introduced in the EU, ‘it was assumed that this status was of a temporary nature,’ but ‘practical experience . . . has shown that this initial assumption was not accurate’”: UNHCR and Odysseus Network, “Discussion Paper Prepared for the Expert Roundtable on the Right to Family Life and Family Unity in the Context of Family Reunification,” Dec. 4, 2017, at [95]. See J. Hathaway, “What’s in a Label?,” (2003) 5 European Journal of Migration and Law 1.

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were denied the right of family reunification.2208 Indeed, even the label “asylum-seeker” employed by some countries as the basis for delaying refugee rights, including to family reunification, is similarly problematic. Because of the time which status verification may take in some systems – often stretching to several years – not even this label can be relied upon as a clear indicator of a short-term, transient position in the host state. Perhaps the most egregious example of a status-based breach of the duty to reunite families is the Australian decision to assign “temporary protected” status to all refugees arriving without a valid visa, and to rely on that status to prohibit such refugees from being reunited with their family members.2209 In view of the legal right of refugees to seek protection without advance permission2210 and the duty of states to protect all refugees under their de jure or de facto jurisdiction,2211 it is difficult to imagine any plausible basis for stigmatizing all refugees arriving in these circumstances as entitled only to limited protection rights, and particularly to be denied any right of reunion with their families. Indeed, the temporary status assigned these refugees does not even purport to have any relationship to the anticipated duration of the need for protection in Australia – it is rather a punitively assigned label, earned on the basis of the refugee’s internationally lawful, but domestically disapproved, actions. In such circumstances, the denial of all facilities for family reunification cannot be said to be reasonable under international law, meaning that Australia should be found in breach of its duties under Art. 23(2) of the Civil and Political Covenant. It follows that to the extent that a government relies strictly upon the label assigned a given individual – for example, “asylum-seeker” or “temporarily protected” person – to grant or to withhold rights to family reunification, it does not implement the right to family reunification in a reasonable way. To be clear, the argument here is not that the duty to act reasonably compels an immediate right of all refugees to family reunification; rather, it is simply that any delay in allowing refugees to access family reunification facilities must be based on rational, substantive considerations rather than simply on the basis of the formal status assigned to them. For example, assuming the existence of discretion to take account of the special psychological or other circumstances of the persons concerned, the Human Rights Committee’s understandings would likely sanction an incremental approach under which a refugee (whatever his or her formal status) would be entitled to be reunited with a spouse and children after one year in the asylum state, and with other dependent family members after two years there. Under such a model, states would have ample time to avoid the reunification of families where the primary claim to protection is clearly unfounded, or where the need for protection is really short-lived. 2208 2211

See text at note 2093. See Chapter 3.1.1.

2209

See text at note 2074.

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See Chapter 4.2.

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Yet refugees would not be indefinitely denied their right to family unity simply on the basis of a formal label assigned to them. A potential weakness of Art. 23(2) as the basis for a duty of refugee family reunification is that its duty to reunify families is textually embedded in “[t]he right of men and women of marriageable age to marry and to found a family [emphasis added].”2212 In a slimly reasoned decision, the Human Rights Committee determined that this provision did not entitle a lesbian couple to marry because “[u]se of the term ‘men and women,’ rather than the general terms used elsewhere in . . . the Covenant, has been consistently and uniformly understood as indicating that the treaty obligation of States parties stemming from article 23, paragraph 2, of the Covenant is to recognize as marriage only the union between a man and a woman wishing to marry each other.”2213 Nowak’s analysis of this decision suggested that persons in a same-sex relationship or unmarried persons with children do not qualify to benefit from the right to “found a family” (including the right to unity and to reunification of family): Since the right of “men and women” to marry, according to the jurisprudence of the Committee, only applies to heterosexual couples, this restricted scope of application of Art. 23(2) presumably also applies to the right to found a family. Same-sex couples who live together with or without children, or women or men who live alone with their children, are, therefore, not protected by the right to found a family. This does not mean that such persons do not constitute a family within the meaning of Art. 17 (1) and Art. 23(1).2214

On this reading, single persons with children or same-sex couples (with or without children) are protected from capricious or unpredictable interference with family unity (Art. 17)2215 and are “entitled to protection by society and the State” (Art. 23(1)), but are nonetheless excluded from the affirmative right to “found a family”– and hence to family reunification – contained in Art. 23(2). This seems an unduly restrictive interpretation. First, the language of the Human Rights Committee in this decision suggests an intention strictly to limit its ambit, with the Committee finding only that “the treaty obligation of States parties stemming from article 23, paragraph 2, of the Covenant is to recognize as marriage only the union between a man and a woman wishing to marry each other [emphasis added].”2216 The use of the 2212 2213

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2215 2216

Civil and Political Covenant, at Art. 23(2). Joslin v. New Zealand, HRC Comm. No. 902/1999, UN Doc. CCPR/C/75/D/902/1999, decided July 17, 2002, at [8.2]. Nowak, UN Covenant on Civil and Political Rights (2005), at 532–533. This analysis is not found in Schabas, Nowak’s CCPR Commentary (2019). See text at note 2158 ff. Joslin v. New Zealand, HRC Comm. No. 902/1999, UN Doc. CCPR/C/75/D/902/1999, decided July 17, 2002, at [8.2].

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singular (rather than speaking to the several obligations which the Committee had previously recognized as flowing from Art. 23(2))2217 suggests a determination narrowly to speak only to the issue of access to marriage as such.2218 Indeed, the Committee has previously determined that actual marriage is not required to invoke the broader right to protection of family life set by Art. 23, including the right to family reunification.2219 Second, two members of the Committee specifically noted that facts that might substantiate a breach of the right to equal protection of the law under Art. 26 of the Covenant2220 had not been argued in the case.2221 In the view of these concurring members, Contrary to what was asserted by the State party . . . it is the established view of the Committee that prohibition against discrimination on the grounds of “sex” in article 26 comprises also discrimination based on sexual orientation. And when the Committee has held that certain differences in the treatment of married couples and unmarried heterosexual 2217

2218

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2220 2221

UN Human Rights Committee, “General Comment No. 19: The Family,” UN Doc. HRI/ GEN/1/Rev.7, July 27, 1990, at [5]. Even on this more narrow point it is not clear that the Joslin decision is sound. As Schabas has written, “[t]he phrase ‘men and women’ in Art. 23(4) can be traced to Art. 16(1) of the Universal Declaration of Human Rights. Inspection of the travaux préparatoires of the Universal Declaration of Human Rights indicates that ‘men and women’ was inserted into Art. 16(1) not to confirm the ‘traditional’ view of marriage, as the Committee has implied, but rather to stress the equal position of women within the marriage . . . The wording of Art. 23(2) does not rule out broader interpretation taking into account the rapidly evolving views in many societies in this respect”: Schabas, Nowak’s CCPR Commentary, at 647–648. In the context of its rejection of an argument by France that a refugee from Cameroon forfeited the right to be reunited with his wife by virtue of the absence of evidence of conjugal relations with her, and proof of his sexual infidelity with another woman, the Committee held that “Article 23 of the Covenant guarantees the protection of family life including the interest in family reunification. The Committee recalls that the term ‘family,’ for purposes of the Covenant, must be understood broadly [so] as to include all those comprising a family in the society concerned. The protection of such family is not necessarily obviated, in any particular case, by the absence of formal marriage bonds, especially where there is a local practice of customary or common law marriage. Nor is the right to protection of family life necessarily displaced by geographical separation, infidelity, or the absence of conjugal relations”: Ngambi and Nébol v. France, HRC Comm. No. 1179/2003, UN Doc. CCPR/C/81/D/1179/2003, decided July 16, 2004, at [6.4]. See generally Chapter 3.4 for a detailed analysis of Art. 26. “[I]n the current case we find that the authors failed, perhaps intentionally, to demonstrate that they were personally affected in relation to certain rights not necessarily related to the institution of marriage, by any such distinction between married and unmarried persons that would amount to discrimination under article 26”: Joslin v. New Zealand, HRC Comm. No. 902/1999, UN Doc. CCPR/C/75/D/902/1999, decided July 17, 2002, Individual opinion of Committee members Mr. Rajsoomer Lallah and Mr. Martin Scheinin (concurring).

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couples were based on reasonable and objective criteria and hence not discriminatory, the rationale of this approach was in the ability of the couples in question to choose whether to marry or not to marry, with all the entailing consequences. No such possibility of choice exists for samesex couples in countries where the law does not allow for same-sex marriage or other types of same-sex partnership with consequences similar to or identical with those of marriage. Therefore, a denial of certain rights or benefits that are available to married couples may amount to discrimination prohibited under article 26, unless otherwise justified on reasonable and objective criteria.2222

This reasoning is both helpful and yet also unduly circumscribed. On the positive side of the ledger, the concurring members make clear that states are under a duty to implement the broader content of Art. 23(2) in a manner that comports with the duty to ensure equal protection of the law without discrimination, in particular on the basis of sexual orientation. This understanding aligns with the views of the Inter-American Court of Human Rights that the differential treatment of opposite-sex and same-sex couples is presumptively discriminatory,2223 and the more specific determination of the European Court of Human Rights that a state must implement a right to family reunification without discrimination based on sexual orientation.2224 And critically, as the Court of Justice of the European Union recently determined in a challenge to Romania’s refusal to grant a residence permit to the same-sex husband of a citizen lawfully married in Brussels, this is so whatever the definition of marriage that is adopted by a given state.2225 This reasoning 2222 2223

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Ibid. “Establecer un trato diferente entre las parejas heterosexuales y aquellas del mismo sexo en la forma en que puedan fundar una familia – sea por una unión marital de hecho o un matrimonio civil – no logra superar un test estricto de igualdad . . . Pues, a juicio del Tribunal, no existe una finalidad que sea convencionalmente aceptable para que esta distinción sea considerada necesaria o proporcional”: Advisory Opinion OC-24/17 (IACtHR, Nov. 24, 2017), at [220]. Pajić v. Croatia, Dec. No. 68453/13 (ECtHR, May 23, 2016), at [74], [77]. This decision builds on the ruling in Schalk and Kopf v. Austria, Dec. No. 30141/04 (ECtHR, June 24, 2010) that “a cohabiting same-sex couple living in a stable de facto partnership falls within the notion of ‘family life,’ just as the relationship of a different-sex couple in the same situation would”: ibid. at [94]. “[T]he obligation for a Member State to recognise a marriage between persons of the same sex concluded in another Member State in accordance with the law of that state, for the sole purpose of granting a derived right of residence to a third-country national, does not undermine the institution of marriage in the first Member State . . . Such recognition does not require that Member State to provide, in its national law, for the institution of marriage between persons of the same sex. It is confined to the obligation to recognise such marriages, concluded in another Member State in accordance with the law of that state, for the sole purpose of enabling such persons to exercise the rights they enjoy under EU law. Accordingly, an obligation to recognise such marriages for the sole purpose of granting a derived right of residence to a third-country national does not undermine the

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makes clear, for example, that Art. 4 of the European Union’s Family Reunification Directive2226 should be understood to grant a refugee the right to be reunited with his or her same-sex spouse. The unfortunate part of the reasoning of the concurring members of the Human Rights Committee, however, is that their warning of potential discrimination was predicated on the inability of same-sex couples to marry.2227 If the applicants had been a heterosexual couple who chose not to marry, or indeed a same-sex couple opting not to marry in a country that allows them that option, this reasoning – supported by other decisions of the Human Rights Committee2228 – suggests that there would be no impermissible discrimination. This means that while the first part of Nowak’s reasoning2229 (that samesex couples are outside the right to found a family) is trumped by the duty of non-discrimination under Art. 26, his second conclusion (that women or men who live alone with their children are not protected by the right to found a family) may be accurate. And of course it leaves couples who choose to form a life together but not to exercise an option formally to marry completely out in the cold. This is an unsound approach. Art. 26 does not simply protect persons on the grounds of “sex” (including sexual orientation), but proscribes discrimination “on any ground,” including “other status.”2230 An individual who chooses to cohabit with an unmarried partner (with or without children), or a single person who lives with his or her children, should be understood to enjoy rights of family protection by virtue of the right under Art. 26 not to be discriminated against on the grounds of their unmarried status – including to enjoy the same right to family reunification which the Human Rights Committee has determined to fall under Art. 23(2).2231 In line with the approach of the European

2226 2227

2228

2229

national identity or pose a threat to the public policy of the Member State concerned”: Coman and Hamilton v. Romania, Dec. No. C-673/16 (CJEU, June 5, 2018), at [39]. See text at note 2083. “No such possibility of choice exists for same-sex couples in countries where the law does not allow for same-sex marriage or other types of same-sex partnership with consequences similar to or identical with those of marriage. Therefore, a denial of certain rights or benefits that are available to married couples may amount to discrimination”: Joslin v. New Zealand, HRC Comm. No. 902/1999, UN Doc. CCPR/C/75/D/902/1999, decided July 17, 2002, Individual opinion of Committee members Mr. Rajsoomer Lallah and Mr. Martin Scheinin (concurring). See e.g. LG Danning v. Netherlands, HRC Comm. No. 180/1984, UN Doc. CCPR/C/OP/2 at 205, decided Apr. 9, 1987; Young v. Australia, HRC Comm. No. 941/2000, UN Doc. CCPR/C/78/D/941/2000, decided Aug. 6, 2003, at [10.4] (“[I]n previous communications the Committee found that differences in the receipt of benefits between married couples and heterosexual unmarried couples were reasonable and objective, as the couples in question had the choice to marry with all the entailing consequences”); and X v. Colombia, HRC Dec. No. 1361/2005, UN Doc. CCPR/C/89/D/1361/2005, decided Mar. 30, 2007, at [7.2]. See text at note 2214. 2230 See Chapter 1.5.5. 2231 See text at note 2188.

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Court of Justice, analysis should focus simply on “the extent of economic or physical dependence and the degree of relationship” for purposes of understanding when family members are entitled to reunification.2232 In contrast, the notion that any purely status-based differentiation (heterosexual or homosexual, married or unmarried, single or coupled) should be the basis to withhold such a critical right from refugees and others ought simply to be rejected. In sum, Art. 23(2) of the Civil and Political Covenant – in contrast to the legal duty to avoid unlawful or arbitrary interference with a refugee’s family as elaborated in Art. 17 – is a standard against which the sufficiency of an asylum state’s affirmative efforts to ensure refugee family unity, including by way of reunification efforts, may legitimately be measured.2233 At the very least, authoritative interpretations of Art. 23(2) make it clear that an asylum state which refuses either to admit or to facilitate the reunification of a refugee’s “family” – albeit as defined by the asylum country’s own understanding of relevant relationships, though subject to respect for the duty of nondiscrimination at international law – is in breach of its international legal obligations.2234

4.7 Freedom of Thought, Conscience, and Religion Refugees whose religious faith is foreign to an asylum state are at times denied the right freely to practice their religion there. In Chad, for example, Nigerian and Senegalese members of the Faydal Djaria Muslim community were arrested at the behest of the Chadian Higher Council of Islamic Affairs, which took umbrage at this community’s alleged failure to conform to the 2232

2233

2234

Secretary of State for the Home Department v. Muhammad Sazzadur Rahman, Dec. No. C-83/11 (CJEU, Sept. 5, 2012), at [23]. The UNHCR also invokes “dependency” in aid of a “flexible and expansive” approach to family reunification: UNHCR, “Protecting the Family: Challenges in Implementing Policy in the Resettlement Context,” June 2001, at [1c]; and UNHCR and Odysseus Network, “Discussion Paper Prepared for the Expert Roundtable on the Right to Family Life and Family Unity in the Context of Family Reunification,” Dec. 4, 2017, at [40]. The arguments in favor of reliance on interdependency as the basis for family class admissions are canvassed in J. Hathaway, Toward a Contextualized System of Family Class Immigration: A Study for the Government of Canada (1994). Fourlanos reaches a comparable conclusion on the basis of Art. 10(1) of the Economic, Social and Cultural Covenant. “If a State grants many kinds of protection to a family (e.g. financial, practical, education), but fails to ensure family unity, then that State has not complied with Article 10(1) of [the Economic, Social and Cultural] Covenant. This is especially so when minor children are living with the family”: Fourlanos, Sovereignty, 99. “Obviously, by imposing such duties on States, the principle of family unity limits the State exclusionary power with regard to admission of aliens. A State refusing admission to a family member will probably find itself in contravention of international law, unless there is a reason to justify such a deviation”: Fourlanos, Sovereignty, at 110.

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principles of Islam.2235 Refugees of a minority religion may also experience pressure from other refugees to conform to dominant beliefs, as was the case for many Afghan refugees living in Pakistani camps controlled by conservative religious groups committed to strict enforcement of Islamic codes.2236 In still other cases, pressure to change religious ways comes from groups that administer aid. Syrian Muslim refugees were the objects of proselytization by Christian aid workers in Greece during the month of Ramadan,2237 Bosnian Muslim refugees in Austria were accused of religious laxity by a Saudi-run relief agency when they refused to accept scarves for the women refugees to cover their heads,2238 and an Anglican aid group assisting Muslim refugees in Lebanon conditioned a monthly stipend on attendance at weekly Bible groups.2239 Restrictions on the practice of religion may also follow from efforts to foster neutrality, as when asylum centers in Denmark banned religious practice in public areas.2240 More commonly, however, the religious freedom of refugees is constrained by limits which apply, at least in principle, to all persons in the asylum country rather than being targeted at refugees as such. Restrictions on belief or action directed at those who profess minority religions are, however, more likely to have a disproportionate impact on refugees and other aliens since most citizens will by definition be a part of the majority in their own country.2241 Moreover, 2235

2236

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2238

2239

2240

2241

“Report of the Special Rapporteur on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief,” UN Doc. E/CN.4/2001/63, Feb. 13, 2001, at [130]. Some refugees compelled to live in those camps were thus required to abide by religious standards in which they did not believe, and to which they had not subscribed in their home country: N. Ahmad, International Academy of Comparative Law National Report for Pakistan (1994), at 9, citing as an example the required use of purdah (veil covering a woman’s face). “Daily life in the camps strongly reflects the greater Islamification of society. There is peer pressure to conform and also pressure from the Mujahadeen”: K. Clark, “Islamic Fundamentalism in the Afghan Camps in Peshawar,” (1992) 3(1) Women Against Fundamentalism Journal 15, at 15. P. Kingsley, “Aid Workers Accused of Trying to Convert Muslim Refugees at Greek Camp,” Guardian, Aug. 2, 2016. K. Durán and J. Devon, “Saudi Relief Hypocrisy: How the Kingdom Uses and Abuses ‘Charity,’” National Review Online, May 13, 2003. J. Ensor, “The Muslim Refugees Converting to Christianity ‘to Find Safety,’” Telegraph, Jan. 30, 2017. “[T]hose in charge of the [asylum] centres sometimes follow an excessively cautious approach towards religion . . . to the extent that they ban any religious practice in the public areas of the asylum centre. While a certain level of regulation is required to ensure cohabitation in such centres, the complete ban of prayer in collective areas seems an unduly restrictive measure that might amount to a violation of freedom of religion if no alternative space is offered for collective prayer”: “Report of the Special Rapporteur on Freedom of Religion and Belief on his Mission to Denmark,” UN Doc. A/HRC/34/50/ Add.1, Dec. 28, 2016, at [49]. “An issue that merits special mention is increasing intolerance of refugees and asylum seekers of a particular religious affiliation in order to, for example, maintain the traditional religious make-up of a State or to appease populist responses to the ‘other’. It must

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the vulnerability of refugees to loss of religious freedom may be heightened by the denial in some states of even formal guarantees of religious freedom to non-citizens. The government of the Maldives, for instance, “prohibit[s] resident foreigners and foreign tourists from practicing any religion other than Islam in public . . . [I]t continued to permit foreigners to raise their children to follow any religious teaching they wished, but only in private.”2242 Azerbaijan prohibits proselytizing by foreign residents, but not by its own citizens.2243 Aliens may also face unique immigration-related barriers and penalties for prohibited acts. Until recently, Canada required persons receiving its citizenship to remove face-covering attire to ensure proper recitation of the oath of allegiance.2244 And in the United Arab Emirates, the penalty for foreign residents found guilty of transgressions such as black magic, sorcery, and incantations is deportation, a penalty obviously not capable of being applied against citizens.2245 Refugees may face particular difficulties when they are received in a theocratic state, in which all are expected to abide by a particular set of beliefs. For example, Taliban authorities in Afghanistan required all Muslims to adhere to an interpretation of Islam under which virtually all human rights of women were denied.2246 The same is true when the host country is hostile to religious

2242

2243

2244

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be emphasized that this action amounts to a ‘territorialization’ of religion or belief, which goes against both the spirit and the letter of the right to freedom of religion or belief”: “Report of the Special Rapporteur on Freedom of Religion and Belief,” UN Doc. A/HRC/ 34/50, Jan. 17, 2017, at [53]. US Department of State, “International Religious Freedom Report for 2018: Maldives,” www .state.gov/reports/2018-report-on-international-religious-freedom/maldives/, accessed Feb. 20, 2020. “The law prohibits proselytizing by foreigners but does not prohibit citizens from doing so. In cases of proselytization by foreigners and stateless persons, the law sets a punishment of one to two years in prison”: US Department of State, “International Religious Freedom Report for 2018: Azerbaijan,” www.state.gov/reports/2018-report-on-inter national-religious-freedom/azerbaijan/, accessed Feb. 20, 2020. Pew Research Center, “Restrictions on women’s religious attire,” Apr. 5, 2016, at 7. The ban on the wearing of the niqab was struck down by the Federal Court of Appeal: Canada v. Ishaq, [2015] FCA 194 (Can. FCA, Sept. 15, 2015). US Department of State, “International Religious Freedom Report for 2018: United Arab Emirates,” www.state.gov/reports/2018-report-on-international-religious-freedom/ united-arab-emirates/, accessed Feb. 20, 2020. “[T]he Taliban’s policy of intolerance and discrimination in the name of religion . . . affects Afghan society as a whole and women and Shiite Muslims in particular. Two communications reveal that the Taliban has introduced what is in point of fact a system of apartheid in respect of women, based on its interpretation of Islam: exclusion of women from society, employment and schools, obligation for women to wear the burqa in public and restrictions on travel with men other than members of the family . . . The Special Rapporteur believes that the maintenance, openly and publicly, of an apartheid policy of this nature is abnormal, from the standpoint of human rights”: “Report of the Special Rapporteur on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief,” UN Doc. E/ CN.4/1999/58, Jan. 11, 1999, at [26]. Even now, “[t]here continued to be reports of the

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practice of any kind. Uighur migrants to China have been among the more than 2 million Uighurs, ethnic Kazhaks and members of other Muslim groups who have been subjected to disappearance, physical abuse, and prolonged detention without trial2247 because of their religion.2248 And in Uzbekistan, a stringent approach to the registration of religions – which requires the application of at least 100 adult Uzbek citizens and criminalizes unregistered religious activity – similarly suppresses a broad-ranging class of minority religious communities.2249 Many states impose restrictions that target the adherents of minority religions. For example, the Jehovah’s Witness refugees who fled from Mozambique to Malawi found that the Witnesses were one of five religious

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Taliban and ISKP monitoring the social habits of local populations in areas under their control and imposing punishments on residents according to their respective interpretations of Islamic law”: US Department of State, “International Religious Freedom Report for 2018: Afghanistan,” www.state.gov/reports/2018-report-on-international-religious-freedom/ afghanistan/, accessed Feb. 20, 2020. “Multiple media and NGOs estimated that since April 2017, the government detained at least 800,000 and up to possibly more than 2 million Uighurs, in specially built or converted detention centers in Xinjiang . . . The government sought the forcible repatriation of Uighur Muslims from foreign countries and detained some of those who returned”: US Department of State, “International Religious Freedom Report for 2018: China,” www.state.gov/reports/2018-report-on-international-religious-freedom/chinaincludes-tibet-xinjiang-hong-kong-and-macau/, accessed Feb. 20, 2020. Strict limits on religious freedom are justified by the Chinese government on the grounds that religious adherents in that country are “duty-bound to undergo patriotic reeducation . . . [R]eligion must adapt to the local society and to its development and operate within the confines of the Constitution and laws”: “Report of the Special Rapporteur on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief,” UN Doc. E/ CN.4/1999/58, Jan. 11, 1999, at [48]. Indeed, the Chinese government has continued to place persons “who are easily influenced by religious extremism” in “political education” centers: “Detainees are required to learn the Chinese language, and recite Chinese and Xinjiang laws and policies. They are compelled to watch pro-government propaganda videos, and to renounce their ethnic and religious identities, reciting slogans such as ‘religion is harmful,’ and ‘learning Chinese is part of patriotism’”: Human Rights Watch, “China: Free Xinjiang ‘Political Education’ Detainees,” Sept. 10, 2017. A. Shaheed, “Report of the Special Rapporteur on Freedom of Religion or Belief on his Mission to Uzbekistan,” UN Doc. A/HRC/37/49/Add.2, Feb. 22, 2018, at [23]–[25]; see also [39]–[40]. “The limitations occasioned by the registration requirement leave religious communities trapped in a vicious cycle of violations of the law. In order to be registered, religious communities need to have a certain number of believers. However, without the right to share their religion freely with others, it is difficult for religious communities to increase the membership, hence almost impossible to be registered. Without the required registration, religious communities cannot carry out religious activities in groups or in public, neither can they establish a central administrative body to set up religious institutions to allow their members to learn about their religion or be trained as religious personnel. In short, these limitations seriously violate the right to freedom of religion or belief”: ibid. at [48].

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groups whose religious practice was outlawed by that country during the reign of President Hastings Banda.2250 Russia similarly lists Jehovah’s Witnesses as a group banned “in connection with the carrying out of extremist activities”; this designation places them alongside such groups as Al Qaeda and the Islamic State.2251 Egypt2252 and Iran2253 are among the states which have criminalized practice of the Baha’i faith, while Pakistan relies on far-reaching blasphemy laws2254 to target Ahmadis and other minority faiths.2255 In Vietnam, police

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Due to their precarious situation in Malawi, the Jehovah’s Witnesses “have taken advantage of any chance to leave Malawi”: D. Cammack, “Protection in a ‘Model Program’: Mozambican Refugees in Malawi” (1993), at 16–17. The one-party regime of President Hastings Banda ended in 1994, and religious freedom for minorities has now been restored, including provision for the payment of damages to persons dismissed from official employment on grounds of religion: US Department of State, Annual Report on International Religious Freedom for 2002 (2002), at 60–61. This designation resulted in members’ placement on a list of “terrorists and extremists”: A. Higgins, “Russia Moves to Ban Jehovah’s Witnesses as ‘Extremists,’” New York Times, Apr. 4, 2017. The Russian Supreme Court’s rejection of a challenge to the measure, moreover, confirmed the “closure of the group’s Russian headquarters, local chapters and the seizure of its property by the state”: L. Dearden, “Jehovah’s Witnesses Ban Comes into Force in Russia after Supreme Court Dismisses Appeal,” Independent, July 18, 2017. “The law does not recognize the Baha’i Faith or its religious laws and bans Baha’i institutions and community activities . . . The government did not prevent Baha’is, members of the Church of Jesus Christ, and Jehovah’s Witnesses from worshiping privately in small numbers. However, Baha’i sources said the government refused requests for public religious gatherings”: US Department of State, “International Religious Freedom Report for 2018: Egypt,” www.state.gov/reports/2018-report-on-inter national-religious-freedom/egypt/, accessed Feb. 20, 2020. “[A]pproximately 90 Baha’is were in prison as of November. The BIC stated that all arrests and detentions were directly linked to the individual’s professed faith and religious identity. Charges brought against Baha’is included ‘insulting religious sanctities,’ ‘corruption on earth,’ ‘propaganda against the system,’ espionage and collaboration with foreign entities, and actions against national security. Charges also included involvement with the Baha’i Institute for Higher Education (BIHE), a university-level educational institution the government considered illegal. According to the BIC, in many cases, the authorities made arrests in conjunction with raids on Baha’i homes, during which they confiscated personal belongings, particularly religious books and writings”: US Department of State, International Religious Freedom Report for 2018: Iran,” www.state.gov/reports/2018-report-on-international-reli gious-freedom/iran/, accessed Feb. 20, 2020. “The courts continued to enforce blasphemy laws, punishment for which ranges from life in prison to execution for a range of charges, including ‘defiling the Prophet Muhammad.’ According to civil society reports, there were at least 77 individuals imprisoned on blasphemy charges, at least 28 of whom had received death sentences, although the government has never executed anyone specifically for blasphemy”: US Department of State, “International Religious Freedom Report for 2018: Pakistan,” www.state.gov/reports/2018-report-on-inter national-religious-freedom/pakistan/, accessed Feb. 20, 2020. “Ahmadis are some of the most common defendants in criminal charges of blasphemy, which in Pakistan can carry the death penalty. By law they cannot call their place of worship mosques or distribute religious literature, recite the Koran or use traditional Islamic greetings, measures

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beat a Montagnard leader for failing to renounce his faith;2256 Saudi Arabia expelled an Indian Christian for distributing a Christian videotape.2257 The precise focus of efforts to repress religious practice varies considerably. In some states, the goal is to prohibit the actual holding of particular religious views, whether or not these views are put into practice. For example, Eritrea recognizes only four state-approved religions and holds adherents of unregistered groups in detention, sometimes for years or even decades.2258 Officials in Laos have evicted Christians for failing to renounce their faith.2259 Some states,

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that they say criminalize their daily lives”: S. Sayeed, “Pakistan’s Long-Persecuted Ahmadi Minority Fear Becoming Election Scapegoat,” Reuters, Nov. 15, 2017. The pastor later died from his injuries: US Department of State, “International Religious Freedom Report for 2015: Vietnam,” www.state.gov/documents/organization/269024 .pdf, accessed Feb. 20, 2020. Even now, “[m]embers of various ethnic minority groups in the Central Highlands collectively known as Montagnards stated government officials continued to assault, monitor, interrogate, arbitrarily arrest, and discriminate against them, in part because of their religious practices”: US Department of State, “International Religious Freedom Report for 2018: Vietnam,” www.state.gov/reports/2018-report-oninternational-religious-freedom/vietnam/, visited Feb. 20, 2020. “Saudi Arabia replied that George Joseph had been arrested for having engaged in activities that created a disturbance and in response to complaints from persons living in his neighbourhood. Mr. Joseph was allegedly distributing a video that was illegal, being contrary to the values and rules in force in Saudi Arabia”: “Report of the Special Rapporteur on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief,” UN Doc. E/CN.4/2001/63, Feb. 13, 2001, at [10]–[11]. More recently, “[t]he government continued to set policy aimed at enforcing Islamic norms; for example, the government threatened to expel foreigners who did not refrain from eating, drinking, or smoking in public during Ramadan”: US Department of State, “International Religious Freedom Report for 2018: Saudi Arabia,” www.state.gov/reports/2018-report-on-international-religious-free dom/saudi-arabia/, accessed Feb. 20, 2020. “The government recognizes four officially registered religious groups: the Eritrean Orthodox Church, Sunni Islam, the Roman Catholic Church, and the Evangelical Lutheran Church of Eritrea. Unregistered groups lack the privileges of registered groups, and their members can be subjected to additional security service scrutiny . . . International nongovernmental organizations (NGOs) and media continued to report members of all religious groups were, to varying degrees, subjected to government abuses and restrictions. Members of unrecognized religious groups reported instances of imprisonment and deaths in custody due to mistreatment and harsh prison conditions, and detention without explanation of individuals observing the recognized faiths”: US Department of State, “International Religious Freedom Report for 2018: Eritrea,” www.state.gov/reports/2018-report-on-international-religious-freedom/eri trea/, accessed Feb. 20, 2020. A. Jahangir, “Report of the Special Rapporteur on Freedom of Religion or Belief on his Mission to the Lao People’s Democratic Republic,” UN Doc. A/HRC/13/40/Add.4, Jan. 27, 2010, at [40]. “The advocacy group Human Rights Watch for Lao Religious Freedom (HRWLRF) reported that on November 18 three police officers in Keovilia village, Vilabouly District, Savannakhet Province, arrested three men and one elderly woman for being Christian . . . According to HRWLRF, the police held the men in handcuffs and feet stocks. Police released the four, but evicted them from their homes and confiscated their property. According to HRWLRF, police threatened them with unspecified criminal charges if they did not renounce Christianity”: US Department of State, “International Religious

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including Saudi Arabia, have punished atheism, agnosticism, and other irreligious beliefs by subjecting proponents to capital punishment and lashings on charges of blasphemy and apostasy.2260 Sudan2261 and Yemen similarly impose capital punishment for conversion from Islam to virtually any other religion. In one case, the Yemeni government agreed not to carry out a death sentence imposed for apostasy on a Somali refugee who had converted from Islam to Christianity; the “solution” arrived at in cooperation with UNHCR was to expel the refugee from the country to Djibouti.2262

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Freedom Report for 2018: Laos,” www.state.gov/reports/2018-report-on-international-reli gious-freedom/laos/, accessed Feb. 20, 2020. “There were numerous reports of government authorities calling for the prosecution of atheists, and during the year [2015], there were two known cases of courts prosecuting accused atheists. In February national media reported the General Court in Hafr al-Batin sentenced an individual to death on charges of apostasy related to renouncing his Muslim faith and desecrating a Quran on video, although his execution had not been carried out at year’s end. In November media and local sources reported that the General Court in Abha had sentenced Palestinian poet Ashraf Fayadh to death for apostasy, overturning a previous sentence of four years’ imprisonment and 800 lashes. Officials from the CPVPV [Commission for the Promotion of Virtue and Prevention of Vice] initially arrested Fayadh in August 2013 after reports that he had made disparaging remarks about Islam. Fayadh was initially charged with blasphemy, spreading atheism in public places, and having illicit relationships with women”: US Department of State, “International Religious Freedom Report for 2015: Saudi Arabia,” https://2009-2017.state.gov/j/drl/rls/irf/religiousfreedom/ index.htm?year=2015&dlid=256287#wrapper, accessed Feb. 20, 2020. A reviewing court later reduced the latter punishment from death to “eight years in prison, 800 lashes and public repentance”: B. Hubbard, “Saudi Court Spares Poet’s Life but Gives Him 8 Years and 800 Lashes,” New York Times, Feb. 2, 2016. “The courts [have] continued to enforce blasphemy laws, punishment for which ranges from life in prison to execution for a range of charges, including ‘defiling the Prophet Muhammad.’ According to civil society reports, there were at least 77 individuals imprisoned on blasphemy charges, at least 28 of whom had received death sentences, although the government has never executed anyone specifically for blasphemy”: US Department of State, “International Religious Freedom Report for 2018: Saudi Arabia,” www.state.gov/reports/2018-report-on-international-religious-freedom/ saudi-arabia/, accessed Feb. 20, 2020. “The [Sudanese] criminal code does not explicitly mention proselytizing, but it criminalizes both conversion from Islam to any other faith (apostasy) and acts that encourage conversion from Islam. Those who convert from Islam to another religion as well as any Muslim who questions or criticizes the teachings of the Quran, the Sahaba (the Companions of the Prophet), or the wives of the Prophet may also be considered guilty of apostasy and sentenced to death. Those charged with apostasy are allowed to repent within a period decided by the court but may still face up to five years in prison”: US Department of State, “International Religious Freedom Report for 2018: Sudan,” www.state.gov/reports/2018-report-on-inter national-religious-freedom/sudan/, accessed Feb. 20, 2020. In 2015, for example, twenty-five Muslims – including three teenagers – were charged with apostasy for adhering to an interpretation of Islam other than that sanctioned by the government: Z. Salih, “Sudan Threatens 25 Muslims with Death on Charges of Apostasy,” Guardian, Dec. 16, 2015. “On 16 January 2000, Mohammed Omer Hadji, a Somali refugee resident in Yemen, was reportedly arrested and held at Tawahi police station on account of his conversion to Christianity. Following his release on 13 March 2000, he was allegedly beaten by the police

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Even in asylum countries where there are no formal limits on religious belief, true freedom of religion may not exist. Simple adherence to (or refusal to adopt) a religion may not be prohibited, but religious worship or communal prayer may be barred or otherwise disturbed. In India, Christian services have been disrupted and those attending arrested,2263 while Bangladeshi officials were slow to prosecute participants in mobs that ransacked and destroyed more than twenty Buddhist temples.2264 Police have raided mosques for weapons in Germany2265 and forced the closure of unregistered mosques in

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and told that he would be killed unless he returned to the Muslim faith. He was reportedly rearrested two months later and condemned to death by a court for apostasy, although the court stated that the death sentence would not be carried out if he reconverted to Islam . . . [T]he Government replied to the UN Special Rapporteur that ‘ . . . such conduct constitutes an offence under Yemeni laws and legislation.’ Accordingly, the said person was arrested and referred for trial on the charge of apostasy from Islam to another religion. However, in view of his status as a refugee in Yemen, the Yemeni Government decided that it would be more appropriate to expel him from the territory of Yemen in collaboration and coordination with the UNHCR office in Sana’a. This decision was put into effect and the said person was expelled to Djibouti on Friday, 25 August, as an alternative to the continuation of the trial proceedings”: “Report of the Special Rapporteur on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief,” UN Doc. E/CN.4/2001/63, Feb. 13, 2001, at [147]–[148]. “On April 7, the radical nationalist youth brigade Hindu Yuva Vahini, created in 2002 by Yogi Adityanath, the current chief minister of Uttar Pradesh, raided a Dadhauli church in Maharajganj district (Uttar Pradesh), and interrupted the church service. There were about 150 faithful in the church at that time, including 10 American tourists. All Christians, including the pastor Yuhanna Adam, were arrested by police on charges of forced conversions to Christianity”: S. Digal and N. Carvalho, “Masses Interupted, Pastors Arrested, Allegations of Forced Conversions: Easter Plight of India’s Christians,” Asia News, Apr. 11, 2017. See also “Police Stops Church Event after Yogi Adityanath’s Hindu Yuva Vahini Alleges Conversion,” Times of India, Apr. 8, 2017. Known as the 2012 Ramu incident, “more than 20 historic Buddhist temples were ransacked, torched and finally destroyed. At the same time, a number of houses owned by Buddhists burned down to ashes. In that case, the Government reacted promptly and restored the destroyed temples, thus sending a much-needed message that such acts would not be tolerated. However, none of the perpetrators of the Ramu violence has been held accountable yet. According to the Government, the police have submitted charges in eighteen cases, and eleven trials have commenced. The Special Rapporteur notes the reported progress but urges for prompt justice to be delivered. Many members of religious minorities, who shared their experiences, remembered such acts of violence, including lootings, vandalism, torching of houses of worship and even killings. Some expressed frustration about inadequate reactions of the police and the judiciary, which they said created a climate of impunity”: “Report of the Special Rapporteur on Freedom of Religion or Belief on his Mission to Bangladesh,” UN Doc. A/HRC/31/18/Add.2, Jan. 22, 2016, at [50]. “[I]n February of 2015, German police raided the mosque of the Islamic Cultural Center in Bremen; the police said they suspected that the mosque supported Salafist groups and that a person associated with the mosque was distributing automatic weapons for a terror attack. Police broke down the front door of the mosque, handcuffed worshippers and forced some to lie on the floor for hours. No weapons were found in the mosque. In July, a

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Angola.2266 To counter “incitement to violence” in the aftermath of the 2016 Nice attack, France issued emergency orders to close twenty Salafist mosques2267 and deported a number of foreign Salafi imams suspected of incitement.2268 And religious services of all kinds were suspended in Zambia during a cholera outbreak.2269

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Bremen regional court ruled that the search was unlawful”: Pew Research Center, “Global Restrictions on Religion Rise Modestly in 2015, Reversing Downward Trend,” Apr. 11, 2017, at 8. See also US Department of State, “International Religious Freedom Report for 2015: Germany,” at 6, https://2009-2017.state.gov/j/drl/rls/irf/religiousfreedom/index .htm#wrapper, accessed Feb. 20, 2020. “Under Angolan law, a religious group needs more than 100,000 members and to be present in 12 of the 18 provinces to gain legal status, giving them the right to construct schools and places of worship. There are only an estimated 90,000 Muslims among Angola’s population of about 18 million”: A. Cabeche and D. Smith, “Angola Accused of ‘Banning’ Islam as Mosques Closed,” Guardian, Nov. 28, 2013. “The government continued not to recognize any Muslim groups officially or issue any licenses to Muslim groups to practice their religion legally . . . The Baha’i Faith and the Global Messianic Church remained the only two nonChristian organizations legally registered”: US Department of State, “International Religious Freedom Report for 2018: Angola,” www.state.gov/reports/2018-report-on-internationalreligious-freedom/angola/, accessed Feb. 20, 2020. “Interior Minister Bernard Cazeneuve announced that closure orders had been issued for 20 Salafist mosques. The orders were issued in keeping with the law against incitement, which states that when incitement is present in a sermon, the authorities close the mosque where it was delivered”: D. Alfon, “France’s Mosques Envious of Churches after Foreign Funding Ban,” Haaretz, Aug. 10, 2016. “The mosque closures follow several high-profile attacks by Islamic extremists in the country in less than two years . . . France has been under a nationwide state of emergency since the ISIS attacks in Paris in 2015, which grants the state the ability to enforce tougher measures, including shutting down places of worship suspected of promoting radical views”: Y. Serhan, “France’s Disappearing Mosques,” Atlantic, Aug. 1, 2016. After extending the nationwide state of emergency several times over a three-year period, France transferred much of the order’s policing power – including the ability to close places of worship – into permanent law: S. Qazi, “French Parliament Approves New Anti-Terrorism Law,” Al Jazeera, Oct. 3, 2017. Due to suspicions that the Islamic State attempts to “exert influence mainly through small Salafist mosques” and the high number of imams ordained overseas, French authorities “prefer to focus on the clerics who lead the mosques. Of the 2,500 heads of official mosques, an astounding 2,100 are foreign citizens and 2,350 were ordained outside of France. Only 50 are French citizens ordained in France . . . [Prime Minister] Valls said this week that the authorities have so far deported 80 clerics suspected of incitement”: D. Alfon, “France’s Mosques Envious of Churches after Foreign Funding Ban,” Haaretz, Aug. 10, 2016. However, a Senate committee report indicating that only two French centers are qualified to train imams, with the result that “some 300 imams are hired from abroad, including many ‘whose French language skills are poor,’” calls into question the legitimacy of considering ordainment overseas as such a factor: B. Dodman, “Will Banning Foreign Funds for French Mosques Help Combat Terrorism?” France 24, July 29, 2016. “Zambian government ministers said Jan. 7 that all gatherings of every nature, including church services, were banned in areas most affected by the epidemic. The ministers said the ban is aimed at curbing the spread of the disease and making current treatment measures more effective”: M. Pintu, “Zambia Bans Church Services as Cholera Epidemic Hits Nation,” Crux, Jan. 10, 2018. In another province, officials mandated that “all religious meetings . . .

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Perhaps most commonly, authorities constrain religious practice by limiting the ability of minority religious organizations to establish a physical presence. For example, Indian officials have invoked land use rulings to justify the demolition of unauthorized religious structures.2270 Only Muslim mosques may be built in the Maldives,2271 while mosques were effectively prohibited in Athens until 2000.2272 Evangelical churches have been destroyed by the government of Sudan.2273 Officials in Indonesia refused to intervene to prevent the

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should be reduced to less than two hours and ensure that all congrega[nts] leave the meeting place immediately. [Copperbelt Province Permanent Secretary] Mr. Nundwe advised churches to meet other requirements such as providing soap for hand washing, clean up the surroundings, provide clean sanitary facilities, avoid handshakes and sensitize congregants on the epidemic. He warned religious organizations who do not meet the set standards will have their religious facilities closed”: “Copperbelt PS Order Churches to Limit Hours of Services to Less than 2 Hours,” Lusaka Times, Jan. 11, 2018. In 2009, the Supreme Court instituted an interim ban on the construction of religious structures encroaching on public roads, pavements, and sidewalks, and requested that states identify such pre-2009 structures for demolition or relocation on a case-by-case basis: D. Mahapatral, “We Will Not Differentiate between Illegal Temple or Mosque: SC,” Times of India, May 11, 2011. In its 2013 confirmation of the order, the Court extended this rule to statues, though not to street lights or other public utility services; in addition, the Court specified its ruling would apply to temples, mosques, churches, and gurudwaras “on public places abutting roads which significantly restrict movement of vehicles leading to long traffic snarls”: D. Mahapatral, “Supreme Court Bans Shrines, Statues on Public Roads,” Times of India, Jan. 19, 2013. In relation to existing unauthorized religious structures, “the bench took a nuanced position recognizing that removal of such construction is not an easy task for either municipal authorities or police. It said these could be removed without creating a law and order problem. ‘Public road is not anyone’s property. Each citizen had a right to use the road and that right cannot be interfered with or impeded by constructing a temple, mosque, church or gurudwara or by installing the statue of a public figure,’ said Justices Lodha and Mukhopadhaya”: ibid. See also “SC Pulls Up States for Not Removing Illegal Roadside Religious Structures,” LiveLaw, Apr. 20, 2016. “By law, mosques and prayer houses remain under the control of the MIA rather than the country’s island councils. The law prohibits the establishment of places of worship for non-Islamic religious groups”: US Department of State, “International Religious Freedom Report for 2018: Maldives,” www.state.gov/reports/2018-report-on-inter national-religious-freedom/maldives/, accessed Feb. 20, 2020. M. Petronoti, “Greece as a Place for Refugees: An Anthropological Approach to Constraints Pertaining to Religious Practices,” paper presented to the Conference on War, Exile and Everyday Life, Institute of Ethnology and Folklore Research, Zagreb, 1995. “In 2000, the Parliament approved a bill allowing construction for the first Islamic cultural center and mosque in the Athens area . . . Members of the Orthodox Church oppose the cultural center, claiming it may ‘spread the ideology of Islam and the Arab world’”: US Department of State, Annual Report on International Religious Freedom for 2002 (2002), at 385. The demolition team reportedly arrived “a day after authorities sent a letter saying they would demolish the church”: “Witnesses: Sudan Demolishes Church in Latest Persecution of Christians,” CNN, July 1, 2014. In the more recent demolition of a Presbyterian church, “the police trucks arrived after the church service and demolished the building of the church . . . ‘No prior notice had been given and a court case is ongoing contesting the scheduled demolition of this church, first announced in 2016,’ said the

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forcible eviction of several thousand members of a newly established religious community from the farming compound in which they had settled.2274 Other tactics are more subtle, if equally effective. In 2009, Switzerland enacted a constitutional ban on the construction of minarets, the prayer towers of mosques.2275 Applications to construct Islamic centers and places of worship in the United States have faced efforts to block required zoning permits in Kentucky, Maine, New York, and elsewhere.2276 And Hungary deregistered more than 300 “incorporated churches” – a status that provides for tax benefits and other forms of support.2277

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group. The Sudanese authorities say the removal of a number of churches in Khartoum state comes as a result of the violated zoning regulations[;] also they say they are not officially recognised as churches”: “Sudanese Authorities Demolish Evangelical Church in Khartoum Suburb,” Sudan Tribune, Feb. 14, 2018. “Indonesian officials and security forces have been complicit in the violent forced eviction of more than 7,000 members of the Gafatar religious community from their homes on Kalimantan island since January 2016 . . . Human Rights Watch research in West and East Kalimantan provinces found that security forces failed to protect members of Gerakan Fajar Nusantara, known as Gafatar, standing by while mobs from the ethnic Malay and Dayak communities looted and destroyed properties owned by the group’s members . . . The security forces prevented physical assaults on Gafatar members, but only by forcibly evacuating them from Kalimantan . . . Authorities then arbitrarily detained and interrogated them and threatened them with criminal charges”: Human Rights Watch, “Indonesia: Persecution of Gafatar Religious Group,” Mar. 29, 2016. Known as Gafatar, “[t]he group, which was founded in 2012 and claims about 50,000 followers, is a back-to-the-land movement based on the idea that materialism and cities corrupt spiritual life. It does not call itself a religion. Most of its members, however, subscribe to Millah Abraham, a new messianic faith that draws on elements of Islam, Judaism and Christianity. Because it is illegal to establish a new religion in Indonesia, the government has also banned Gafatar, accusing it of peddling heresies to the weak-minded, and deploying imams, psychologists and soldiers to ‘rehabilitate’ recruits. Many, though, refuse to return to a state-approved version of Islam”: J. Emont, “Back-tothe-Land Spiritual Movement in Indonesia Sparks Government Crackdown,” June 28, 2016. N. Cumming-Bruce and S. Erlanger, “Swiss Ban Building of Minarets on Mosques,” New York Times, Nov. 29, 2009. See ACLU, “Mosques and Community Centers,” www.aclu.org/other/mosques-and-commu nity-centers, accessed Feb. 20, 2020. According to a 2016 Department of Justice report, “15 percent of the agency’s investigations into religion-related zoning disputes between 2000 and mid-2010 involved mosques or Islamic schools. Between mid-2010 and mid-2016, that number jumped to 38 percent. Cases involving Christian denominations still account for the greatest share of DOJ investigations, but the share of Muslim-related cases is wildly disproportionate to the religious minority’s size: Roughly 70 percent of American adults identify as Christians, according to Pew Research Center, while less than 1 percent identify as Muslims”: E. Green, “The Quiet Religious-Freedom Fight that is Remaking America,” Atlantic, Nov. 5, 2017. US Department of State, “International Religious Freedom Report for 2016: Hungary,” www.state.gov/reports/2016-report-on-international-religious-freedom/hungary/, accessed Feb. 20, 2020. “Parliament must approve by a two-thirds majority the application of a religious organization to function as an incorporated church, a status which provides for tax benefits and government support. The previous deregistration of more than 350 incorporated churches remained in effect despite Constitutional Court rulings

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Even if worship and the presence of organized religious institutions are not constrained, practices closely connected to religious belief may be restricted or prohibited. Proselytization is proscribed or heavily regulated in Greece,2278 Malaysia,2279 and Nepal.2280 China defended its refusal to allow children to

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during the year that certain provisions of the religion law were unconstitutional or in breach of the European Convention on Human Rights, and a 2014 ruling of the European Court of Human Rights (ECHR) declaring the underlying law violated the right to freedom of association read in light of the freedom of religion”: US Department of State, “International Religious Freedom Report for 2015: Hungary,” https://2009-2017 .state.gov/j/drl/rls/irf/religiousfreedom/index.htm#wrapper, accessed Feb. 20, 2020. See also OSCE Forum for Religious Freedom, “Hungary: Two Years after Ruling by ECtHR Church Law Remains Unaltered,” Sept. 27, 2016, www.osce.org/odihr/268711?down load=true, accessed Feb. 20, 2020. “The [Greek] constitution prohibits ‘proselytizing,’ defined by law as ‘any direct or indirect attempt to intrude on the religious beliefs of a person of a different religious persuasion with the aim of undermining those beliefs through inducement, fraudulent means, or taking advantage of the other person’s inexperience, trust, need, low intellect, or naivete.’ The constitution prohibits worship that ‘disturbs public order or offends moral principles.’ It allows prosecutors to seize publications that ‘offend Christianity’ or other ‘known religions’”: US Department of State, “International Religious Freedom Report for 2018: Greece,” www.state.gov/reports/2018-report-on-international-reli gious-freedom/greece/, accessed Feb. 20, 2020. The prohibition on proselytizing has been enforced primarily against members of religious minorities such as Mormons and Jehovah’s Witnesses. Although enforcement efforts have decreased in recent years, it was reported in relation to Jehovah’s Witnesses that as recently as 2016, “police in Athens and in provincial towns attempted to intimidate and discourage preaching or distributing and displaying information and religious material in public, citing prohibition of proselytism by the constitution”: US Department of State, “International Religious Freedom Report for 2016: Greece,” www.state.gov/reports/2016-report-on-international-religious-free dom/greece/, accessed Feb. 20, 2020. “The federal constitution states, ‘every person has the right to profess and practice his religion,’ but gives federal and state governments the power to control or restrict proselytization to Muslims”: US Department of State, “International Religious Freedom Report for 2018: Malaysia,” www.state.gov/reports/2018-report-on-international-reli gious-freedom/malaysia/, accessed Feb. 20, 2020. As part of its approach to the issue of proselytizing, the National Council for Islamic Religious Affairs issued a fatwa banning the use of the term “Allah” by non-Muslims: “The Arabic word ‘Allah’ is commonly used in the Malay language to refer to God by Christians in Malaysia, as it is in other languages in parts of the Muslim world. But the Malaysian government insists that ‘Allah’ should be reserved for the country’s 60% Muslim majority out of concerns that its use by others would confuse Muslims and could be used to convert them”: “Malaysian Court Bans Use of ‘Allah’ by non-Muslims,” Al Jazeera, Oct. 14, 2013. Malay-language Bibles (which also employ the term) “are banned everywhere except inside churches” and have been the target of government seizure: T. Fuller, “The Right to say ‘God’ Divides a Diverse Nation,” New York Times, Nov. 3, 2014. “On August 8, 2017 the parliament passed a new criminal code, which reduces the punishment for converting – or encouraging the conversion of – the religion of another person or for engaging in any act, including the propagating of religion, that undermines the religion, faith, or belief of any caste, ethnic group, or community, from six years to five years’ imprisonment. The law will take effect in August 2018. It also stipulates a fine of up

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attend Christian summer camps as necessary “to protect the health and safety of teenagers during the hot summer days.”2281 Similarly, the diet and attire associated with certain faiths have increasingly been subject to restriction. Some French mayors, for instance, have prohibited alternatives to pork in school cafeterias;2282 others have sought to ban “burkinis,” or the full-body swimwear preferred by some Muslim women, as posing a threat to public order.2283 In other areas, restrictions target clothing that covers the face or the head: Mozambique, for instance, bans face-covering veils in public

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to Nepali Rupees (NRs) 50,000 (US $500) and subjects foreign nationals convicted of these crimes to deportation. The new criminal code also imposes punishments of up to two years’ imprisonment and a fine of up to NRs 20,000 (US $200) for harming the religious sentiment of any caste, ethnic community, or class, either in speech or writing”: US Department of State Diplomatic Security, “Proselytizing Abroad: Where is it Legal and Illegal?” www.brigada.org/wp-content/uploads/2018/02/OSAC-ProselytizingReport-Country-List.pdf, accessed Feb. 20, 2020. “[A] notice in Wenzhou, capital of Zhejiang province, suggested a different motive. ‘Minors receiving religious education and formation too early in churches would seriously affect the normal implementation of the education system,’ the notice said . . . Children were banned from summer camps in Zhejiang, Jiangsu, Henan and Inner Mongolia, while in Fuzhou, the provincial capital of Fujian, churches from the statesanctioned Three-Self Patriotic Movement (TSPM) were told to report any activity held in registered religious venues, or obtain permission to hold events in un-registered venues”: “China Bans Children – and their Teachers – from Churches,” World Watch Monitor, Sept. 8, 2017. The ban also applied to churches and Sunday schools in some areas: C. Shepherd and S. Qiu, “In ‘China’s Jerusalem’, Christians say Faith Trumps Official Sunday School Ban,” Reuters, Dec. 23, 2017. Such measures predominantly affect members of the Muslim and Jewish communities. In addition, the Washington Post notes that “[t]here is an important socioeconomic issue at play . . . Many Muslim students are among the poorest in the local community, and requiring that pork be served means forcing them to forgo a ‘wholesome, balanced meal’ one day a week. For school meals, students in Beaucaire have to pay 2.40 euros ($2.95) per day, which means that Muslim students will now be paying for food they cannot eat”: J. McAuley, “French Mayor Bans Pork Substitutes in School Meals, saying he’s Defending Secularism,” Washington Post, Jan. 15, 2018. A similar measure enacted in a town in Burgundy was later annulled on the grounds that such a restriction was not in the best interest of children: K. Willsher, “Non-Pork Meals must be Available for School Lunch, Rules French Court,” Guardian, Aug. 28, 2017. “Last week, Nice became the latest French resort to ban the burkini. Using language similar to the bans imposed earlier at other locations, the city barred clothing that ‘overtly manifests adherence to a religion at a time when France and places of worship are the target of terrorist attacks.’ The Nice ban refers specifically to the truck attack in the city on 14 July [2016] that claimed 86 lives, as well as the murder 12 days later of a Catholic priest near the northern city of Rouen”: B. Quinn, “French Police make Woman Remove Clothing on Nice Beach following Burkini Ban,” Guardian, Aug. 23, 2016. Multiple French courts later ruled that the attack did not constitute sufficient grounds to justify such a ban: A. Breeden and L. Blaise, “Court Overturns ‘Burkini’ Ban in French Town,” New York Times, Aug. 26, 2016; “Burkini Ban Suspended by Nice Court, Dismissing Claim of Public Order Risk,” Guardian, Sept. 1, 2016.

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schools.2284 In still other cases, the opposite is true. Women in the Russian republic of Chechnya were forced to wear headscarves in public places as part of President Kadyrov’s so-called “virtue campaign”; in the capital of Grozny, several women were attacked with paintball guns when they appeared in public without headscarves.2285 At times, long-held ancestral traditions – for instance, the performance of livestock sacrifices and use of opium by Animists in Laos – have also come under scrutiny by authorities.2286 A particular concern is freedom of religious education. Uzbekistan, for example, denies parents the right to ensure the religious and moral education of their children.2287 Norway has insisted on the teaching of a religious ethics course that emphasizes Christianity in its schools,2288 Turkey mandates religious instruction for all but Christians and Jews,2289 and some mayors in Italy 2284

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Headscarves may also be ordered removed for official photographs for identification documents: Pew Research Center, “Restrictions on Women’s Religious Attire,” Apr. 5, 2016, at 7. Ibid. at 12. In other parts of Russia, women are forbidden from donning religious attire: ibid. at 2. A. Jahangir, “Report of the Special Rapporteur on Freedom of Religion or Belief on his Mission to the Lao People’s Democratic Republic,” UN Doc. A/HRC/13/40/Add.4, Jan. 27, 2010, at [56], [59]. The Special Rapporteur also highlighted the belief, predominant among some ethnic minorities, that “twins are demons or ghost children who have to be killed instantly after birth” as particularly problematic: ibid. at [58]. A. Shaheed, “Report of the Special Rapporteur on Freedom of Religion or Belief on his Mission to Uzbekistan,” UN Doc. A/HRC/37/49/Add.2, Feb. 22, 2018, at [37], [44]–[46]. As explained to the Council of Europe by Norway, “[t]he Education Act stipulates that teaching should be objective, critical and pluralistic. The content should not involve preaching or religious practice. The same educational principles should be applied so that all religions and beliefs are treated in a factual and objective manner with respect for their individuality and diversity. The subject is meant to impart knowledge of Christianity, other world religions and philosophies of life, and of ethical and philosophical topics. It should also provide knowledge of the significance of Christianity as part of Norway’s cultural heritage, and for this reason, Christianity will account for the quantitative larger part of the teaching material . . . In the spring of 2015, the Storting changed the name of the subject to Christianity, Religion, Philosophies of Life and Ethics (KRLE), and decided that knowledge of Christianity shall constitute around half of the syllabus”: Norwegian Ministry of Local Government and Modernisation, “Fourth Periodic Report on the Implementation of the Council of Europe’s Framework Convention for the Protection of National Minorities” (2015), at 22–23. “The constitution establishes compulsory religious and moral instruction in public and private primary, middle, and high schools, with content determined by the Ministry of National Education’s Department of Religious Instruction . . . Religion classes are two hours per week for students in grades four through 12. Only students who marked ‘Christian’ or ‘Jewish’ on their national identity cards may apply for an exemption from religion classes. Atheists, agnostics, Alevis or other non-Sunni Muslims, Baha’is, Yezidis, or those who left the religion section blank on their national identity card are not exempt from the classes”: US Department of State, “International Religious Freedom Report for 2018: Turkey,” www.state.gov/reports/2018-report-on-international-reli gious-freedom/turkey/, accessed Feb. 20, 2020.

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have mandated the in-school display of crucifixes2290 and observation of Easter benedictions.2291 In Malaysia, restrictions on freedom of religious education have been applied even to some adults. In 2001, the UN Special Rapporteur on Religious Intolerance observed that all Muslim civil servants were expected to attend continuing Islamic education courses. Malaysia defended its position on the grounds that “[w]hile civil servants are required to be politically neutral, all Malaysians are expected to play their role in the promotion of religious and cultural harmony . . . [A]s Islam exhorts its believers to be fair and just to all regardless of religious and political belief, rather than impairing the neutrality of civil servants, these classes may in the end emphasize the principle of neutrality.”2292 Conversely, though Paraguay eliminated religion from its curriculum in public schools, the predominance of Mennonite and Catholic private schools in particular regions gives rise to a “de facto monopoly” on families’ choice of education.2293 Refugee Convention, Art. 4 Religion The Contracting States shall accord to refugees within their territories treatment at least as favourable as that accorded to their nationals with respect to freedom to practise their religion and freedom as regards the religious education of their children. Civil and Political Covenant, Art. 18 1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest 2290

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“‘Crucifixes are Obligatory in Schools and Offices,’” Local, June 26, 2014; see also “Italian Atheists Vow to Fight pro-Crucifix Court Ruling,” Crux, June 9, 2017. “Bologna Schools Told to Reinstate Easter Blessings,” Local, Mar. 9, 2016. “Report of the Special Rapporteur on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief,” UN Doc. E/CN.4/2001/63, Feb. 13, 2001, at [97]. “Problems may . . . arise when private schools with a specific religious orientation have a de facto monopoly in a particular locality or region. In such situations, some parents and pupils might have no option but to avoid school education based on a denomination different from their own religious or philosophical convictions. This, however, would amount to an infringement of their freedom of religion or belief. When visiting Filadelfia, in the Chaco region, the Special Rapporteur actually learned that the vast majority of schools in that district were run by the Mennonites, who generally place great importance on biblical teachings as part of their school education. In other regions, Catholic schools may be predominant to a degree bordering on a de facto monopoly. In such situations, it is up to the State, as guarantor of human rights, to ensure that the freedom of religion or belief of everyone is effectively respected in the private school sector; this includes the right of pupils not to be exposed to religious instruction against their will, as well as the right of parents or legal guardians to ensure a religious and moral education of their children in conformity with their own convictions”: H. Bielefeldt, “Report of the Special Rapporteur on Freedom of Religion or Belief on his Mission to Paraguay,” UN Doc. A/HRC/19/60/Add.1, Jan. 26, 2012, at [40]–[41].

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his religion or belief in worship, observance, practice and teaching. 2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice. 3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. 4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions. Economic, Social and Cultural Covenant, Art. 13(3) The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians, to . . . ensure the religious and moral education of their children in conformity with their own convictions. No predecessor refugee treaty included a specific reference to the right of refugees to enjoy religious freedom, and no such provision was contained in the working drafts of the Refugee Convention.2294 The oversight seems to have been based on a belief in the Ad Hoc Committee that “no useful purpose”2295 could be served by codifying a right so clearly understood to be inalienable.2296 Not only was the right affirmed in the Universal Declaration of Human Rights, but even under traditional aliens law there was a well-established duty to respect the noncitizen’s “personal and spiritual liberty within socially bearable limits.”2297 There was nonetheless overwhelming support at the Conference of Plenipotentiaries for the contrary view that “the text should impose a contractual 2294 2295

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Robinson, History, at 77. Statement of Mr. Guerreiro of Brazil, UN Doc. E/AC.32/SR.11, Jan. 25, 1950, at 8. See also Statement of Sir Leslie Brass of the United Kingdom, ibid.: “[A] convention relating to refugees could not include an outline of all the articles of the Universal Declaration of Human Rights . . . [B]y its universal character, the Declaration applied to all human groups without exception and it was pointless to specify that its provisions applied also to refugees.” “The call for freedom of religion was undoubtedly one of the most important elements that led to the overcoming of medieval views of the world and the development of modern perceptions of human rights and fundamental freedoms. Therefore, it is not surprising that freedom of religion was set down in early, modern-day national and international documents . . . [F]reedom of thought and religion is not infrequently termed, along with freedom of opinion, the core of the Covenant . . . based on the philosophical assumption that the individual as a rational being is master of his or her own destiny”: Schabas, Nowak’s CCPR Commentary, at 498. See Chapter 1.1 at note 7.

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obligation on states”2298 to respect the religious liberties of refugees.2299 In part, a formal obligation of this kind was felt to be warranted as a basic matter of principle, since lack of religious freedom was frequently a cause of refugee flight.2300 But the delegates were also persuaded that “the spiritual and religious factor was of special significance, having regard to the material and moral distress prevailing among the majority of refugees.”2301 It would clearly be unacceptable if refugees forced to flee religious persecution were to be required to accept as “protection” conditions of life which denied them the very freedom which forced them abroad – a predicament still faced by some refugees today, as was the case for the Jehovah’s Witness refugees who fled to Malawi only to find their religion banned in that country.2302 Such was the importance attached to religious freedom that the relevant article was given pride of place by locating it immediately after the duty of non-discrimination, prior to any other substantive rights.2303 Indeed, the right to religious freedom is the only article in the Convention which comprises a principled obligation on states to take steps for the benefit of refugees beyond even what is done for their own citizens. The standard of treatment for the right of refugees to religious freedom is defined as “treatment at least as favourable as that accorded to their nationals [emphasis 2298

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Statement of Msgr. Comte of the Holy See, UN Doc. A/CONF.2/SR.30, July 20, 1951, at 11. See also Grahl-Madsen, Commentary, at 15: “The words ‘shall accord’ indicate a legal obligation. The right is due to all refugees within the territory, i.e. [it] is not conditioned on the presence of the refugee being lawful.” The Ad Hoc Committee deferred consideration of the issue, and ultimately failed to recommend an article on freedom of religion: UN Doc. E/AC.32/SR.11, Jan. 25, 1950, at 9. The idea was, however, resuscitated by a non-governmental observer, Pax Romana, at the Conference of Plenipotentiaries: Statement of Mr. Buensod of Pax Romana, UN Doc. A/CONF.2/SR.11, July 9, 1951, at 9–10. “He believed that some of the pertinent provisions of the [Universal] Declaration had been overlooked and that it would be advisable to include . . . two articles reproducing as closely as possible articles 18 and 19 . . . which related to freedom of thought, conscience and religion, and freedom of opinion respectively. In his opinion, provisions relating to freedom of opinion would be most appropriate in a convention on refugees, as the latter, as a rule, had abandoned their country of origin because they no longer enjoyed that freedom there”: Statement of Mr. Cuvelier of Belgium, UN Doc. E/AC.32/SR.11, Jan. 25, 1950, at 8. Statement of Mr. Buensod of Pax Romana, UN Doc. A/CONF.2/SR.11, July 9, 1951, at 10. The representatives of Austria, Belgium, Canada, Colombia, Egypt, France, Germany, the Holy See, Luxembourg, the Netherlands, Sweden, the United Kingdom, and Venezuela spoke in favor of the adoption in principle of an article on the right of refugees to religious freedom: UN Doc. A/CONF.2/SR.11, July 20, 1951, at 10–18. The view of the Ad Hoc Committee that reference was not warranted because religious freedom was so obviously a core interest did not prevail, since there was evidence that in practice even core rights were not always respected: Statement of Mr. Rain of France, UN Doc. E/AC.32/SR.11, Jan. 25, 1950, at 9. See text at note 2250. As initially proposed by Luxembourg, the provision on religious freedom would have been Art. 17(a): UN Doc. A/CONF.2/SR.30, July 20, 1951, at 10. The representatives of the Holy See, Venezuela, and Belgium advocated its placement at the start of the substantive rights in the Refugee Convention: ibid. at 11–12.

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added].”2304 This means that refugees may under no circumstance be afforded fewer religious rights than citizens – making the practice of the United Arab Emirates of deporting non-citizens for perceived religious transgressions (a penalty obviously not capable of being applied against citizens)2305clearly unlawful. But the drafters intended more, adopting the “at least as favourable” language to set what amounts to a principled commitment to go beyond simple formal equality in order to recognize “that, precisely on account of their position as refugees, they were frequently handicapped in the practice of their religion.”2306 The proponent of this unique standard of treatment did not clearly define the substance of this duty of states to go beyond a “national treatment” standard,2307 though there appears to have been agreement in principle that states should seek to provide what amounts to substantive equality of religious freedom for refugees. Recognizing that “religious freedom as an abstract principle might be of little value if divorced from the practical means of ensuring it,”2308 governments accepted that they would in some circumstances need to make special efforts to enable refugees to practice their religion. As Weis observes, simple formal equality of treatment with nationals would be insufficient “particularly [in] countries in which there is a State religion to which the refugees do not belong or where the refugees’ religion is not represented in the local population.”2309 As such, even if it were lawful to limit land use in ways that constrain the construction of mosques as occurs in parts of the United States2310 or to use tax laws to benefit only traditional religions as does Hungary,2311 the Refugee Convention 2304 2305

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See Chapter 3.3.2 at notes 461–462 and 479 ff. See text at note 2245. The Human Rights Committee has determined that “deportation and the resulting loss of [a] residence permit constitute[d] limitations” on Art. 18 rights in the case of an individual who was removed for conducting missionary activity: Viktor Leven v. Kazakhstan, HRC Comm. No. 2131/2012, UN Doc. CCPR/C/112/D/2131/2012, decided Oct. 21, 2014, at [9.2]. Statement of Msgr. Comte of the Holy See, UN Doc. A/CONF.2/SR.33, July 24, 1951, at 8. “It is the only provision where the 1951 Convention suggests that States parties should take measures which go beyond what they provide for their own nationals”: C. Walter, “Article 4,” in A. Zimmermann ed., The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary 1657 (2011) (Walter, “Article 4”), at 662. The representative of the Holy See initially argued that assimilation to the nationals of the asylum state was an inadequate standard of treatment, since “[t]here was . . . a danger that in countries where religious liberty was circumscribed, refugees would suffer”: Statement of Msgr. Comte of the Holy See, UN Doc. A/CONF.2/SR.33, July 24, 1951, at 7. Yet he later insisted that he was not “pressing for preferential treatment of refugees”: ibid. at 8. Statement of Mr. Petren of Sweden, ibid. at 9. 2309 Weis, Travaux, at 43. See text at note 2276. See text at note 2277. In assessing these measures, the European Court of Human Rights determined that under Art. 9 of the European regional human rights convention, “in treating the applicants differently from the incorporated Churches not only with regard to the possibilities for cooperation but also with regard to entitlement to benefits for the

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requires asylum states to take account of the specificity of the religious needs of refugees in implementing such policies, rather than simply applying general rules without attention to the situation of refugees. This duty to go beyond the standard of treatment afforded citizens was, however, conceived as “a moral principle . . . somewhat in the nature of an abstract recommendation, but one which was nevertheless entirely consonant with the Universal Declaration of Human Rights.”2312 There was no question of requiring asylum states to dismantle state churches,2313 amend their constitutions,2314 or even to commit financial resources to assist refugees to practice their religion.2315 Thus, the responsibility to make accommodation for the

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purposes of faith-related activities, the [Hungarian] authorities disregarded their duty of neutrality vis-à-vis the applicant communities”: Magyar Keresztény Mennonita Egyház v. Hungary, Dec. No. 41463/12 (ECtHR, Sept. 8, 2014), at [115]. Statement of Mr. Rochefort of France, UN Doc. A/CONF.2/SR.33, July 24, 1951, at 7–8. In calling for modifications to the original draft of Art. 4 tabled by Luxembourg, the French representative noted that “[t]he difficulty, however, lay in the precise form to be given to such a declaration of principle . . . The problem also had a bearing on the question of the national church”: Statement of Mr. Rochefort of France, UN Doc. A/ CONF.2/SR.30, July 20, 1951, at 13. This matter was of particular concern to the Swedish representative, who referred “to the position in his own country, where there was an Established Church – the Lutheran Church – supported by the state . . . Quite clearly, if there was a large influx of, for example, Roman Catholic refugees, Sweden could not be expected to give them the same treatment as members of the Lutheran Church. He presumed that under the provisions of article 4 such refugees would receive the same treatment as Swedish Roman Catholics”: Statement of Mr. Petren of Sweden, UN Doc. A/ CONF.2/SR.33, July 24, 1951, at 8. In line with this view, Walter suggests that “[r]equiring assimilation to the legal position of a State church would compromise the concept of a State church as such . . . National treatment in this situation can only mean a treatment similar to the one that would be given to a religious group that is in a largely similar situation”: Walter, “Article 4,” at 662. But in light of the duty to ensure equal protection of the law under Art. 26 of the Civil and Political Covenant (see Chapter 1.5.5), it might be questioned whether it is “reasonable” for a state to maintain laws that privilege the position of a particular religion: see e.g. “Concluding Observations: Argentina,” UN Doc. CCPR/CO/70/ARG, Nov. 15, 2000, at [16] (“The Committee reiterates its concern that the preferential treatment, including financial subsidies, accorded to the Catholic Church over other religious denominations constitutes religious discrimination under article 26 of the Covenant”). “The text would have to be couched in such terms as would make allowance for the constitutional procedures providing for religious liberty in each country”: Statement of Mr. Hoare of the United Kingdom, UN Doc. A/CONF.2/SR.30, July 20, 1951, at 15. See also concern in this regard expressed by Mr. Rochefort of France, ibid. at 13. “Material facilities and economic assistance fell entirely outside the scope of the article”: Statement of Mr. Hoare of the United Kingdom, UN Doc. A/CONF/2/SR.33, July 24, 1951, at 9. See also Statement of Mr. Petren of Sweden and Msgr. Comte of the Holy See, ibid. Earlier in the debate, the Canadian representative had proposed “that the provision might be drafted negatively in such terms that Contracting States would undertake not to restrict in any respect the freedom of refugees within their territories to practise their religion”: Statement of Mr. Chance of Canada, UN Doc. A/CONF.2/SR.30, July 20, 1951, at 17.

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special disadvantages faced by refugees in practicing their religion really imposes a duty of good faith consideration, not a duty of result. The only clearly binding obligation is that the right of refugees to religious freedom “must be in no way inferior to that accorded to nationals.”2316 Measured against this standard, the inferior protection of religious freedom for noncitizens found in Azerbaijan (which prohibits proselytizing by foreigners, but not by citizens),2317 the Maldives (which disallows the public practice of religion by foreigners),2318 and Uzbekistan (which restricts registration of a religion to citizens)2319 is, to the extent such policies impact refugees, in breach of the Convention. The substantive scope of the right of refugees “to practise their religion” is not spelled out in the Refugee Convention.2320 The original formulation tabled by France on the initiative of the non-governmental organization Pax Romana stipulated that refugees should enjoy “full freedom to continue to practice and manifest their religion . . . individually or jointly, in public and in private, through education, instruction, religious observance, worship and the carrying out of rites.”2321 The Working Party’s reformulation deleted this catalog of protected religious interests in favor of a succinct reference to “complete” freedom of religious practice,2322 which was in turn amended by the Style Committee to refer simply to “freedom to practice their religion.” Importantly, however, nothing in the Conference discussion suggests an interpretation of the scope of religious freedom less robust than the original list proposed by Pax Romana.2323 To the contrary, the representatives confirmed their intention to

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Grahl-Madsen, Commentary, at 16. 2317 See text at note 2243. See text at note 2242. See text at note 2249. In the context of a complaint under Art. 18 of the Civil and Political Covenant, the Human Rights Committee noted that “the State party has not advanced any argument as to why it is necessary . . . for the author, in order to engage in prayer together with his associates from the same church, in conducting a meeting between them in the church and in preaching, to first register as a foreign missionary”: Viktor Leven v. Kazakhstan, HRC Comm. No. 2131/2012, UN Doc. CCPR/C/112/D/2131/2012, decided Oct. 21, 2014, at [9.4]. Indeed, Walter makes the critical observation that “[i]n contrast to other international human rights instruments, Art. 4 of the 1951 Convention does not expressly mention any guarantee related to the so-called forum internum, e.g. the right to have or adopt a religion or, more generally, the right to freedom of thought”: Walter, “Article 4,” at 665. Statement of Mr. Buensod of Pax Romana, UN Doc. A/CONF.2/SR.11, July 9, 1951, at 10. Mr. Rochefort of France agreed that this commitment should “be examined in principle”: ibid. at 11, in consequence of which the proposal was referred to a working party. UN Doc. A/CONF.2/94, introduced by the representative of Luxembourg, UN Doc. A/ CONF.2/SR.30, July 20, 1951, at 10. Grahl-Madsen suggests that the absence of a list of protected religious interests in Art. 4 “does not necessarily call for a more restrictive interpretation”: Grahl-Madsen, Commentary, at 16.

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secure for refugees “a substantial measure of protection and the exercise of inalienable rights,”2324 and “full freedom in the practice of religion.”2325 An arguably even broader protection is in any event now guaranteed by Art. 18 of the Civil and Political Covenant2326 – which, like nearly all rights set by general international human rights law, accrues to the benefit of noncitizens,2327 including refugees.2328 This article of the Covenant establishes a protected interest in “thought, conscience and religion”: Although no definition of “thought” or “conscience” is provided, taken together with “religion” they include all possible attitudes of the individual toward the world, toward society, and toward that which determines his fate and the destiny of the world, be it a divinity, some superior being or just reason and rationalism, or chance.2329 2324

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Statement of Msgr. Comte of the Holy See, UN Doc. A/CONF.2/SR.30, July 20, 1951, at 11. Statement of Mr. Montoya of Venezuela, ibid. at 12. The Human Rights Committee refers to Art. 18(1) as “far-reaching and profound”: UN Human Rights Committee, “General Comment No. 22: Freedom of Thought, Conscience or Religion” (1993), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [1]. Indeed, Schabas argues that the guarantee to “everyone” of the right to religious practice “individually or in community with others” in Art. 18 “means that religious societies as juridical persons are entitled to a human right to the exercise of their belief, enabling them to submit an individual communication in the event this is violated”: Schabas, Nowak’s CCPR Commentary, at 502. This position may be overstated since the relevant language arguably simply describes the ways in which individuals, as rights-holders, may choose to exercise their right to freedom of thought, conscience and religion. See Chapter 1.5.4 at notes 388–390. “Asylum seekers . . . must benefit from the right to freedom of religion or belief and other human rights guarantees not only because they enjoy the same protections as others, but because they are in a particularly vulnerable position and often at a disadvantage in asserting these rights owing to displacement or migration, or lack of familiarity with the host language and political, social and legal context”: UN Human Rights Council, “Report of the Special Rapporteur on Freedom of Religion and Belief,” UN Doc. A/HRC/34/50, Jan. 17, 2017, at [52]. Even refugees subject to provisional or other detention enjoy the right to freedom of religion. “Persons already subject to certain legitimate constraints, such as prisoners, continue to enjoy their rights to manifest their religion or belief to the fullest extent compatible with the specific nature of the constraint”: UN Human Rights Committee, “General Comment No. 22: Freedom of Thought, Conscience or Religion” (1993), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [8]. K. Partsch, “Freedom of Conscience and Expression, and Political Freedoms,” in L. Henkin ed., The International Bill of Rights 208 (1981) (Partsch, “Freedom of Conscience”), at 213. The decision not to provide a detailed definition may follow from the fact that Art. 18(1) protects not simply religion, but “thought, conscience, and religion” – arguably making irrelevant “such factors as: numbers of adherents, truth or falsity of the relevant belief, and historical foundation of the relevant movement”: Joseph and Castan, ICCPR, at 563. This guarantee is, however, understood to include “the negative freedom not to belong to any such group or to live without religious confession”: Schabas, Nowak’s CCPR Commentary, at 507.

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Art. 18(1) is absolutely clear that the actual decision about whether to hold or not to hold a religion or belief is itself a protected interest: The right . . . is far-reaching and profound; it encompasses freedom of thought on all matters, personal conviction and the commitment to religion or belief, whether manifested individually or in community with others . . . Article 18 protects theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief. The terms belief and religion are to be broadly construed.2330

There is thus no question that the Laotian insistence on renunciation of Christianity by converts,2331 Sudan’s prohibition of conversion from Islam to any other faith,2332 the criminalization of the Baha’i faith in Egypt2333 and Iran,2334 and Eritrea’s refusal to recognize other than four religions2335 are all violations of the Civil and Political Covenant. Under the inclusive duty set by Art. 18(1), there can also be no question of excluding from protection actions taken within what is arguably a single “religious” tradition – for example, the arrest by Chad of Nigerian and Senegalese members of a minority Islamic sect on grounds of non-conformism with dominant understandings of Islam2336 – since any variations in the scope of belief are clearly within the realm of the broadly framed freedom of thought, conscience, and religion. The right to believe or not to believe set by Art. 18(1) is moreover not subject to derogation, even in time of extreme national emergency,2337 thus making clear the illegality of Russia’s wholesale ban on adherence to the Jehovah’s Witness faith on the basis of a vague allegation of risk following from “extremism.”2338 2330

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UN Human Rights Committee, “General Comment No. 22: Freedom of Thought, Conscience or Religion” (1993), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [1]–[2]. See text at note 2259. “[T]here can be no doubt that the freedom to adopt a religion of one’s choice includes the right to withdraw one’s membership in one religious society and join another”: Schabas, Nowak’s CCPR Commentary, at 504. See text at note 2261. 2333 See text at note 2252. 2334 See text at note 2253. See text at note 2258. “[T]he right to freedom of religion is not contingent upon recognition or registration by the State”: UN Human Rights Council, “Report of the Special Rapporteur on Freedom of Religion and Belief,” UN Doc. A/HRC/34/50, Jan. 17, 2017, at [25]. See text at note 2235. Civil and Political Covenant, at Art. 4(2). “[T]he internal dimension of freedom of thought, conscience, religion or belief . . . enjoys unconditional and unqualified protection and cannot be restricted, limited, interfered with or derogated from under any circumstances, including during times of public emergency”: UN Human Rights Council, “Report of the Special Rapporteur on Freedom of Religion and Belief,” UN Doc. A/HRC/34/50, Jan. 17, 2017, at [27]. See also Schabas, Nowak’s CCPR Commentary, at 503. The freedom to “manifest one’s religion or beliefs” (as opposed to the right to have or to adopt a religion or belief) may, however, be subject to certain limitations, pursuant to Art. 18(3). See text at note 2373 ff. See text at note 2251.

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Of particular relevance to refugees, Art. 18(2) of the Civil and Political Covenant provides that “[n]o one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.”2339 This duty was breached by Vietnam’s beating of a Montagnard leader who would not renounce his Christianity,2340 Saudi Arabia’s lashing and execution of atheists and agnostics,2341 Chechnya’s encouragement of attacks on women refusing to wear headscarves,2342 and Indonesia’s refusal to intervene to prevent the forcible eviction of several thousand members of a newly established religious community from the farming compound in which they had settled.2343 And while Yemen’s expulsion of a Somali refugee who had converted to Christianity was clearly less vile than the execution it had intended for him,2344 it was still an act manifestly in aid of a fundamental denial of religious freedom. Illicit forms of coercion are not, however, limited to just “the use of physical force or penal sanctions to compel believers or non-believers to adhere to their religious beliefs and congregations, to recant their religion or belief or to convert.2345 Policies or practices having the same intention or effect, such as for example those restricting access to education, medical care, [and] employment . . . are similarly inconsistent with article 18(2).”2346 The requirement that Malaysian civil servants attend continuing Islamic education courses2347 is an example of a clearly coercive policy that abridges the right to respect for differences of religious belief. Similarly, Mozambique’s refusal to allow girls wearing face-covering veils to attend school2348 and even the insistence in parts of Italy that crucifixes be displayed in classrooms and that Catholic blessings be offered there2349 may also be objected to on the grounds that they effectively coerce children to either renounce their access to education or accept an infringement of their right to be free from religious compulsion.2350 2339

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“[T]he word ‘impair’ (‘porter atteinte’) was [chosen instead of] the word ‘deprive’”: Schabas, Nowak’s CCPR Commentary, at 508. See text at note 2256. 2341 See text at note 2260. 2342 See text at note 2285. See text at note 2274. In this regard, “Nowak [2nd edition of CCPR Commentary at 412–413] argues that articles 18(1) and (2) require States to prevent private coercion of another to have or adopt a religion, belief, conscience or opinion. This is correct, as ICCPR rights have been interpreted to have ‘horizontal effect’”: Joseph and Castan, ICCPR, at 569. See text at note 2262. Joseph and Castan caution, however, that “[f]reedom of religion does not seem to include the right not to have one’s religion disparaged”: Joseph and Castan, ICCPR, at 566. UN Human Rights Committee, “General Comment No. 22: Freedom of Thought, Conscience or Religion” (1993), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [5]. See text at note 2292. See text at note 2284. See also Raihon Hudoyberganova v. Uzbekistan, HRC Comm. No. 931/2000, UN Doc. CCPR/C/82/D/931/2000, decided Nov. 5, 2004, at [6.2]. See text at notes 2290–2291. See UN Human Rights Council, “Report of the Special Rapporteur on Freedom of Religion and Belief,” UN Doc. A/HRC/34/50, Jan. 17, 2017, at [28]. Yet as Schabas observes, “[t]he delineation between (impermissible) interference with freedom of

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Coercion is a particular risk in the context of desperate refugees confined to camps or settlements, who may feel compelled to repress their own religious views in the face of demands for compliance with divergent beliefs advocated by those with the power to control their access to food and other resources essential to their survival. This duty to avoid religious coercion was infringed when Syrian refugees in Greece were subjected to proselytization by Christian aid workers,2351 when Bosnian refugee women in Austria were coerced to wear headscarves by Saudi aid workers,2352 when Anglican assistance to Muslim refugees in Lebanon was conditioned on attendance at weekly bible study classes,2353 and when Pakistani officials acquiesced in strict enforcement of Islamic precepts in Afghan refugee camps on its territory (albeit organized by refugee leaders themselves).2354 The religious freedom guaranteed by the Refugee Convention was understood by the drafters explicitly to include the right to “public worship,” for example in a church or mosque.2355 As such, the Convention is violated when refugees are subject to the formal or de facto prohibition of minority worship – for example, the disruption of Christian services in the Indian state of Uttar Pradesh,2356 or Angola’s closure of Islamic mosques.2357 The drafters of the Refugee Convention made clear that the right to “public worship” inherent in Art. 4 need not be understood to require governments to authorize the performance by refugees of “external [religious] acts”2358 – meaning that the Refugee Convention might not, for example, prohibit constraints on proselytization of the kind imposed by Greece,2359 Malaysia,2360 and Nepal.2361 This is an instance in which the cognate guarantee of religious freedom in the Civil and Political Covenant now provides an answer. Beyond simply the right to believe or not to believe, religious freedom also includes a practice dimension. The Civil and Political Covenant protects not simply the right to have (or not to have) a religious belief, but also the “freedom individually or

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thought and conscience and the (permissible) influencing to which we are exposed daily by the media, private advertising or State propaganda is not easily made”: Schabas, Nowak’s CCPR Commentary, at 503. Perhaps for this reason the approach of the European Court of Human Rights to this issue has been much more deferential to state preferences, in particular by reliance on the margin of appreciation doctrine: European Court of Human Rights, “Factsheet: Religious Symbols and Clothing,” Dec. 2017. See text at note 2236. 2352 See text at note 2238. 2353 See text at note 2239. See text at note 2235. Statement of Msgr. Comte of the Holy See, UN Doc. A/CONF.2/SR.30, July 20, 1951, at 13. See text at note 2263. 2357 See text at note 2266. “There was, in fact, a difference between external acts of worship and public worship. Public worship was not necessarily performed by external acts; while it did not exclude external acts of worship, it did not necessarily imply them, but it was possible to bring the two together”: Statement of Msgr. Comte of the Holy See, UN Doc. A/CONF.2/SR.30, July 20, 1951, at 13. See text at note 2278. 2360 See text at note 2279. 2361 See text at note 2280.

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in community with others, and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.”2362 This practice component of religious freedom has been interpreted by the Human Rights Committee to include, for example, the distribution of religious literature.2363 More generally the scope of protected religious practice extends to ritual and ceremonial acts giving direct expression to belief, as well as various practices integral to such acts, including the building of places of worship, the use of ritual formulae and objects, the display of symbols, and the observance of holidays and days of rest. The observance and practice of religion or belief may include not only ceremonial acts but also such customs as the observance of dietary regulations, the wearing of distinctive clothing or head coverings, participation in rituals associated with certain stages of life, . . . the use of a particular language customarily spoken by a group . . . [and] acts integral to the conduct by religious groups of their basic affairs, such as, inter alia, the freedom to choose their religious leaders, priests and teachers, the freedom to establish seminaries or religious schools and the freedom to prepare and distribute religious texts or publications.2364

Under this understanding, Greece’s past practice of refusing to allow mosques to be built in Athens,2365 the continuing refusal of the Maldives to permit the construction of religious buildings other than mosques,2366 the destruction of evangelical churches in Sudan,2367 and the Bangladeshi government’s delays in prosecuting mobs that destroyed Buddhist temples2368 are all actions in violation of the right of freedom to practice the religion of one’s choice. While less egregious, even the Swiss constitutional amendment banning the construction of minarets2369 is – given their spiritual significance2370 – likely also in breach 2362 2363

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Civil and Political Covenant, at Art. 18(1). See text at note 2364. In relying on the Covenant, however, the refugee would face the possibility of the various forms of limitation deemed permissible under Art. 18(3), even if these would not apply to constrain rights under Art. 4 of the Refugee Convention: See text at note 2373 ff. UN Human Rights Committee, “General Comment No. 22: Freedom of Thought, Conscience or Religion” (1993), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [4]. See text at note 2272. 2366 See text at note 2271. 2367 See text at note 2273. See text at note 2264. “The threat to the right comes not only from those operating with impunity in failed or poorly governed States; it can also emanate from laws and policies that discriminate against religious minorities and dissenters and empower non-State actors to ‘punish’ them without fear of reprisal”: UN Human Rights Council, “Report of the Special Rapporteur on Freedom of Religion and Belief,” UN Doc. A/HRC/34/50, Jan. 17, 2017, at [48]. See text at note 2275. “Minarets are more than just technical devices although they always fulfill an architectural function. Beyond their function, they fulfill another role of even greater significance, which is to remind man through their symbolic aspect of the spiritual principles”: A. Kamal, The Significance of the Minaret as the Symbol of the Official Religion (1994).

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of the practice component of Art. 18,2371 as is the prohibition by some French mayors on the serving in school cafeterias of alternatives to pork.2372 This is not to say that religious practice is protected in absolute terms. While the drafters of the Refugee Convention rejected the prerogative of states to limit religious freedom in the interest of “public morality,”2373 they affirmed, in line with Art. 2 of the Refugee Convention,2374 that states could validly curtail activities which refugees might argue to be of a religious nature under general limitations required to ensure “public order.”2375 With the advent of the Civil 2371

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Indeed, the UN Human Rights Committee earlier expressed its “concern[] about the referendum initiative aimed at prohibiting the construction of minarets . . . [I]f adopted, [the referendum] would bring the State party into non-compliance with its obligations under the Covenant”: UN Human Rights Committee, “Concluding Observations of the Human Rights Committee: Switzerland,” UN Doc. CCPR/C/CHE/CO/3, Nov. 3, 2009, at [8]. See text at note 2282. “Although they do not target a specific community openly . . . rules can amount to discrimination against persons belonging to a religious minority if those persons (often women) follow their conscience in following a particular dress code. Similar problems may arise with regard to dietary rules”: UN Human Rights Council, “Report of the Special Rapporteur on Freedom of Religion and Belief,” UN Doc. A/HRC/ 34/50, Jan. 17, 2017, at [46]. The Colombian representative urged that the religious freedom of refugees should be subject to the requirements of “public morality”: Statement of Mr. Giraldo-Jaramillo of Colombia, UN Doc. A/CONF.2/SR.30, July 20, 1951, at 15. This proposal was not pursued after the intervention of the French representative, Mr. Rochefort, ibid. at 16: “[I]t would be undesirable to introduce into the text the words . . . ‘and of public morality,’ proposed by the Colombian representative, for clearly the practice of religion went hand in hand with morality.” See Chapter 1.4.4. The Egyptian delegate proposed that the religious freedom of refugees should be “limited by the requirements of national law”: Statement of Mr. Mostafa of Egypt, UN Doc. A/ CONF.2/SR.30, July 20, 1951, at 14. The representative of the Netherlands was initially disposed to this limitation, though he preferred the language “subject to the laws and regulations and measures adopted to maintain public order”: Statement of Baron van Boetzelaer of the Netherlands, ibid. The Belgian representative was, however, worried “that the phrase suggested by the Netherlands representative might prove restrictive. Laws might be promulgated or regulations applied which would nullify the provisions of the proposed new article. He would prefer the formula ‘subject to the requirements of public order’ [emphasis added]”: Statement of Mr. Herment of Belgium, ibid. With the support of the representative of the Holy See, the delegate of the Netherlands was persuaded that the Belgian formulation – predicated not just on the invocation of public order reasons, but on the necessity for their invocation – was indeed to be preferred: Statement of Baron van Boetzelaer of the Netherlands, ibid. In the end, however, not even this more cautious language was inserted into Art. 4 based on the recommendation of Msgr. Comte of the Holy See that “it was unnecessary to include the words ‘subject to the requirements of public order.’ Article 2 of the draft Convention already laid down that a refugee had the particular duty of conforming with measures taken for the maintenance of public order in the country of refuge; that provision was of a general nature, applicable to all the succeeding articles”: ibid. at 17. Thus, only public order measures which conform to the general requirements of Art. 2 (see Chapter 1.4.4) are lawful limitations

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and Political Covenant, however, even the right of states to limit religious freedom in the interest of promoting public order is now significantly constrained. Under the Covenant, the practice dimension of protected religion and belief (as distinguished from the right to believe or not to believe itself) is subject to “such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.”2376 Importantly, the right of states under the Covenant to limit religious practice where necessary to protect order is not the same as the broadranging “concept of ordre public under French civil law, but [is] rather only [a right] to avoid disturbances to public order in the narrow sense.”2377 Because the drafters of the Covenant chose to deviate from precedent by avoiding reference to the broader civil law construct of public order, the scope for limitation is significantly reduced, as Partsch explains: Article 18(3) permits limitations to protect “public safety, order, health or morals.” Presumably “public” modifies “order” as well as “safety,” but here it is used without the interpretative addition of the French term ordre public. Indeed, here even the French text does not speak of “ordre public” but of la protection de l’ordre. This clearly suggests that limitations on freedom to manifest one’s religion cannot be imposed to protect ordre public with its general connotations of national public policy, but only where necessary to protect public order narrowly construed, i.e. to prevent public disorder. A state whose public policy is atheism, for example, cannot invoke Article 18(3) to suppress manifestations of religion or beliefs.2378

As such, so long as the risk to the public is real and the steps taken are focused and proportional, some intrusion on religious practice in the interest of preventing serious disorder is permissible2379 – but the restoration of order must not become a pretext for overly broad intrusions on the right to religious practice. China’s vague invocation of “public

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on the religious freedoms of refugees. In particular, “public order” cannot be invoked to eliminate religious practice altogether as this would effectively render Art. 4 of no force or effect: see Walter, “Article 4,” at 665. Civil and Political Covenant, at Art. 18(3). Critically, “[t]his means the measures must be delineated in accessible legal instruments or decisions”: Joseph and Castan, ICCPR, at 572. Schabas, Nowak’s CCPR Commentary, at 527. Partsch, “Freedom of Conscience,” at 212–213. See also Schabas, Nowak’s CCPR Commentary, at 525: “[T]he ground of national security is lacking altogether, that of public order (ordre public) was substituted with the less far-reaching ‘protection of order,’ and interference in the interest of the rights of others is permissible only to protect their fundamental rights and freedoms.” UN Human Rights Council, “Report of the Special Rapporteur on Freedom of Religion and Belief,” UN Doc. A/HRC/34/50, Jan. 17, 2017, at [30].

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order”2380 to justify its harsh efforts to minimize the influence of religion in its society is thus not within the realm of acceptable limitation.2381 While Germany’s targeted raids on mosques to search for automatic weapons used in a terrorist attack2382 and France’s deportation of imams inciting violence2383 would more comfortably fall within the realm of the public order exception to religious freedom, the means employed – Germany forcing some worshipers to lay on the ground for hours during the raids2384 and France not just deporting the imams but closing down the Salafist mosques altogether2385 – strayed into the realm of disproportionality and thus likely failed the necessity test.2386 Of critical importance to refugees, “the non-discriminatory nature of the right ensures that nationality cannot form a basis for imposing restrictions on minorities, migrants or non-nationals.”2387 Interestingly, even as the duty simultaneously to respect obligations under the Covenant has effectively narrowed the scope for invocation of a public order limitation on religious practice allowed under the Refugee Convention, the Covenant standing alone sanctions forms of limitation not permissible under the Refugee Convention2388 – specifically those based on public safety, health, and respect for the fundamental rights and freedom of others.2389 The 2380

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See text at notes 2247–2248. See e.g. the defense offered by the Chinese government to the Special Rapporteur on Religious Intolerance. “On 23 August 1999, Zhang Rongliang, Feng Jianguo, Wang Xincai and some other key members of cult organizations, flaunting the banner of ‘unification of churches,’ called together some people to set up a new cult organization in Tanghe county, Henan Province, and disturbed the public order there. The local public security department, acting on the local people’s reports, banned their illegal activities according to law”: “Report of the Special Rapporteur on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief,” UN Doc. E/CN.4/2001/63, Feb. 13, 2001, at [150]. “The limitation clause contains an exhaustive list of all grounds for limitation”: Schabas, Nowak’s CCPR Commentary, at 524. See text at note 2265. 2383 See text at note 2268. 2384 See note 2265. See text at note 2367. “[T]he limiting measures must be ‘necessary’ to achieve the relevant purpose. This means that the law should be ‘proportionate’ to the specific need upon which it is predicated”: Joseph and Castan, ICCPR, at 573. See generally the discussion of “necessity” in Chapter 3.4. UN Human Rights Council, “Report of the Special Rapporteur on Freedom of Religion and Belief,” UN Doc. A/HRC/34/50, Jan. 17, 2017, at [30]. Importantly, however, “national security” is not among the sanctioned reasons for limiting the right to religious freedom: UN Human Rights Committee, “General Comment No. 22: Freedom of Thought, Conscience or Religion” (1993), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [8]. The Human Rights Committee has insisted, however, that “[i]n interpreting the scope of permissible limitation clauses, States parties should proceed from the need to protect the rights guaranteed under the Covenant, including the right to equality and nondiscrimination on all grounds specified in articles 2, 3 and 26. Limitations imposed must be established by law and must not be applied in a manner that would vitiate the

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“safety” branch of this principle would, for example, likely justify India’s demolition of small shrines built in places such as the middle of roads that compromised public safety.2390 The importance of ensuring “health” would be a sound basis for Zambia’s decision to impose constraints on church services and other public gatherings during a cholera epidemic2391 and Laos’ refusal to allow Animist practices including animal sacrifice, the use of opium, and the killing of twins.2392 And respect for “the fundamental rights and freedoms of others”2393 might be a basis to approve of both Canada’s former rule requiring that face-covering attire be removed when an oath of citizenship is taken in order to ensure that the oath is in fact properly recited2394 and Denmark’s prohibition of holding particular religious services in the shared communal areas of asylum centers2395 (at least so long as a more private alternative space is provided). Of greater concern, the Covenant seems also to have validated one form of limitation specifically rejected by the drafters of the Refugee Convention – namely, restrictions based on “public morals.” At first glance, then, the expulsion by Saudi Arabia of the Indian who distributed a Christian videotape contrary to host country “values,”2396 and even the rigid enforcement of an

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rights guaranteed in article 18. The Committee observes that paragraph 3 of article 18 is to be strictly interpreted”: ibid. Moreover, “[t]he fact that a religion is recognized as a state religion or that it is established as official or traditional or that its followers comprise the majority of the population, shall not result in any impairment of the enjoyment of any of the rights under the Covenant, including articles 18 and 27, nor in any discrimination against adherents to other religions or non-believers”: ibid. at [9]. See text at note 2270. The public safety limitation could also justify a constraint on religious ceremonies which, if conducted, would engender a hostile confrontation: Schabas, Nowak’s CCPR Commentary, at 526. See text at note 2269. The public health limitation might include, for example, the right to require persons to be vaccinated against contagious diseases, religious convictions notwithstanding: ibid. at 527. See text at note 2286. See e.g. Prince v. South Africa, HRC Comm. No. 1474/2006, UN Doc. CCPR/C/91/D/1474/2006, decided Oct. 31, 2007, at [7.2]–[7.3]. “Thus, States parties may . . . limit freedom of religion for the protection of one of the other rights of others guaranteed in the two Covenants”: Schabas, Nowak’s CCPR Commentary, at 528. The view that limitation is also possible to limit religion based upon the need to uphold “those rights of others that have the character of fundamental rights and freedoms in [that country’s] legal system” (ibid.) is, however, questionable since as Schabas himself insists, there is a need for “an international minimum standard for human rights”: ibid. See text at note 2244. See e.g. Singh v. France, HRC Comm. No. 1876/2000, UN Doc. CCPR/C/102/D/1876/2009, decided July 22, 2011, at [8.4], in which a violation was found in the case of a Sikh forced to remove his turban for a residence permit photo because, inter alia, the State could not show how this would aid its ability to identify the applicant and would not be simply a one-time requirement given the continuing use of the identity card. Neither of these concerns applies to a policy intended to ensure that an oath is properly recited on a single occasion. See text at note 2240. 2396 See text at note 2257.

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extreme version of Islam by the Taliban in Afghanistan,2397 might appear to be consistent with the understanding of religious freedom codified in the Covenant. There are, however, two answers to this dilemma. First, the potential risk stemming from the prerogative of states to limit religious freedom on grounds of public morals under the Covenant is in fact less serious than the treaty’s broad language might suggest.2398 As the Human Rights Committee has explained, “the concept of morals derives from many social, philosophical and religious traditions: consequently, limitations on the freedom to manifest a religion or belief for the purpose of protecting morals must be based on principles not deriving from a single tradition.”2399 This criterion makes Saudi Arabia’s seizure of the Christian videotape,2400 grounded in the promotion of only an Islamic understanding of morals, not justified; it also prohibits Pakistan’s reliance on collective morality to give legitimacy to its abuse of blasphemy laws to target the Ahmadis, a minority Muslim sect.2401 A limitation for reasons of morals must also be “directly related and proportionate to the specific need on which [it is] predicated.”2402 Thus, the decision of the Taliban in Afghanistan massively to violate the human rights of women in pursuit of its vision of a morally defined society2403 – even if had not been (impermissibly) based on a single vision of morality – could not in any event have been justified. 2397 2398

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See text at note 2246. “A Soviet proposal to make freedom of thought and religion subject to a mere formal legal proviso in accordance with ‘the dictates of public morality’ was defeated by the [Human Rights Commission] by a vote of 9:4, with 3 abstentions. Instead, agreement was reached on a limitation clause in Art. 18(3) listing all reasons for restriction. It relates only to public freedom of religion and belief and is narrower than comparable limitations clauses in the Covenant”: Schabas, Nowak’s CCPR Commentary, at 501. UN Human Rights Committee, “General Comment No. 22: Freedom of Thought, Conscience or Religion” (1993), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [8]. Thus, “‘public morals’ measures should reflect a pluralistic view of society, rather than a single religious culture”: Joseph and Castan, ICCPR, at 577. See text at note 2260. See text at note 2255. More specifically, “[p]rohibitions of displays of lack of respect for a religion or other belief system, including blasphemy laws, are incompatible with the Covenant, except in the specific circumstances envisaged in article 20, paragraph 2, of the Covenant [involving advocacy of hatred] . . . Thus, for instance, it would be impermissible for any such laws to discriminate in favour of or against one or certain religions or belief systems, or their adherents over another, or religious believers over non-believers. Nor would it be permissible for such prohibitions to be used to prevent or punish criticism of religious leaders or commentary on religious doctrine and tenets of faith”: UN Human Rights Committee, “General Comment No. 34: Article 19: Freedoms of Opinion and Expression,” UN Doc. CCPR/C/GC/34, Sept. 12, 2011, at [48]. UN Human Rights Committee, “General Comment No. 22: Freedom of Thought, Conscience or Religion” (1993), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [8]. See text at note 2246.

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Second, at least to the extent that the form of religious freedom at issue falls also within the arguably narrower ambit of Art. 4 of the Refugee Convention, a refugee can avoid the impact of the Covenant’s public morality limitations on religious freedom by invoking the Refugee Convention’s right to practice one’s religion which, as explained above, does not admit of limitation for reasons of morals.2404 This would be an answer, for example, if the French policy against the wearing of modest, religiously required swimming attire2405 were to be applied against a refugee woman. Even if subject to limitation under the Covenant, a refugee’s right to practice her religion, including by the wearing of sanctioned attire, is guaranteed by the Refugee Convention. The most specific form of religious liberty protected by the Refugee Convention is the “freedom [of refugees] as regards the religious education of their children.”2406 This right, presented to the Conference of Plenipotentiaries as the right of refugees “to ensure that their children are taught the religion they profess,”2407 was the subject of substantial debate. The main concern of states, in line with their view that their principled responsibility to facilitate the religious freedom of refugees should not entail a duty to fund such activities,2408 was that the phrasing proposed “implied that the State would be committed to providing at its own expense facilities for teaching the religion of the refugee.”2409 To avoid this interpretation, it was agreed that the only obligation of states was “to grant refugees . . . freedom to ensure that their children were taught in the religion they professed.”2410 The duty was “permissive on [refugee] parents and not mandatory on governments.”2411 The implications of this understanding of the right to freedom of religious education are perhaps best understood in relation to a description of the Swedish approach to education, as given by that country’s representative to the Conference of Plenipotentiaries: Primary education was compulsory in Sweden, and parents who could not afford to send their children to a private school were obliged to send them to a State school, where religious instruction was given according to the Lutheran faith. If a refugee belonged to a church other than the Lutheran

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See text at note 2373. A refugee relying on the Covenant’s protection of the right to manifest religion or beliefs could, however, face restrictions prescribed by law and shown to be necessary “to protect public safety, order, health, or the fundamental rights and freedoms of others”: See text at note 2376 ff. See text at note 2283. 2406 Refugee Convention, at Art. 4. UN Doc. A/CONF.2/94. 2408 See text at note 2315. Statement of Mr. Fritzer of Austria, UN Doc. A/CONF.2/SR.30, July 20, 1951, at 14–15. Statement of Mr. van Heuven Goedhart of UNHCR, ibid. at 15. Statement of Mr. Rees of the Commission of the Churches on International Affairs, ibid. at 17. See also Statements of Mr. Herment of Belgium and Mr. Fritzer of Austria, ibid. at 15.

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church, he had full freedom to withdraw his children from the classes in religious instruction.2412

While this drafting history thus suggests a purely permissive approach to Art. 4 – ensuring that parents are free on the same terms as nationals (if they have the resources) to enrol their children in schools which provide their preferred form of religious instruction and, if they are not able to fund education of that kind, to withdraw their children from any non-preferred form of religious instruction provided within the public school system – Walter correctly observes that the national treatment standard governing Art. 4 actually requires more: Where [religious] education is offered in State schools, refugee children have the same right to access as all other children. Where no religious education in the specific religion of the refugee children is offered, the State would be under an obligation to introduce such education only under the conditions in which it would have to provide for such education under its national law in general.2413

In addition, educational freedoms under the Covenant on Economic, Social and Cultural Rights are now understood to include the right of parents and guardians “to ensure the religious and moral education of their children in conformity with their own convictions [emphasis added].”2414 And while the right to religious education set by Art. 18(4) of the Civil and Political Covenant provides for duties comparable to those under the Refugee 2412

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Statement of Mr. Petren of Sweden, ibid. at 12. Mr. Petren went on to say that atheist parents did not enjoy the same right to withdraw their children from mandatory Lutheran education classes, a position now clearly inconsistent with the accepted position that freedom of religion includes the right to hold or not to hold particular convictions. See UN Human Rights Committee, “General Comment No. 22: Freedom of Thought, Conscience or Religion” (1993), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [2], [6]: “Article 18 protects theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief.” Walter, “Article 4,” at 666. This result would in any event now be compelled by the duty of equal protection of the law under Art. 26 of the Civil and Political Covenant: see Chapter 1.5.5. Economic, Social and Cultural Covenant, at Art. 13(3). Under this provision, “[t]he State . . . is obliged merely to refrain from placing obstacles in the way of parents wishing to exercise this right”: Craven, ICESCR Commentary, at 110. In its General Comment on the right to education, the Committee on Economic, Social and Cultural Rights noted that “[t]he second element of article 13(3) is the liberty of parents and guardians to choose other than public schools for their children, provided the schools conform to ‘such minimum educational standards as may be laid down or approved by the State.’ This has to be read with the complementary provision, article 13(4), which affirms ‘the liberty of individuals and bodies to establish and direct educational institutions,’ provided the institutions conform to the educational objectives set out in article 13(1) and certain minimum standards”: UN Committee on Economic, Social and Cultural Rights, “General Comment No. 13: The Right to Education” (1999), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [29].

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Convention,2415 the Human Rights Committee has determined also that states may not discriminate in the funding of religious education2416 – a clear and important advance on the right as guaranteed in the Refugee Convention. Taking account of these obligations, the right to religious education is clearly violated by Uzbekistan’s denial to parents of the right to have a say in the moral and religious education of their children,2417 as well as by Turkey’s insistence that only Christians and Jews may be exempted from Islamic religious instruction.2418 As the UN Special Rapporteur on Religious Intolerance has noted, even a “de facto monopoly”2419 of religiously oriented education may impair this freedom – for example, the predominance of Mennonite and Catholic schools in parts of Paraguay.2420 On the other hand, while Norway’s amended mandatory religion curriculum emphasizes Christianity for reasons of historical significance, the fact that the class must be taught in a way that is “objective, critical and pluralistic . . . [and] not involve preaching or religious practice”2421 means that it probably complies 2415

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In particular, “[t]he Covenant does not oblige States parties to fund private or religious schools”: Schabas, Nowak’s CCPR Commentary, at 533. In respect to Art. 18(4) of the Civil and Political Covenant, the Human Rights Committee has observed simply that “[t]he liberty of parents or legal guardians to ensure that their children receive a religious and moral education in conformity with their own convictions . . . is related to the guarantees of the freedom to teach a religion or belief stated in article 18(1)”: UN Human Rights Committee, “General Comment No. 22: Freedom of Thought, Conscience or Religion” (1993), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [6]. Indeed, the Convention on the Rights of the Child may actually have narrowed the scope of the parental prerogative, as the parental role is now conceived as auxiliary to the primary right of children to decide on the nature of their own religious or moral upbringing. “States Parties shall respect the right of the child to freedom of thought, conscience and religion. States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child”: Rights of the Child Convention, at Art. 14(1)–(2). “[T]he Committee observes that the Covenant does not oblige States parties to fund schools which are established on a religious basis. However, if a State party chooses to provide public funding to religious schools, it should make this funding available without discrimination. This means that providing funding for the schools of one religious group and not for another must be based on reasonable and objective criteria. In the instant case, the Committee concludes that the material before it does not show that the differential treatment between the Roman Catholic faith and the author’s religious denomination is based on such criteria. Consequently, there has been a violation of the author’s rights under article 26 of the Covenant to equal and effective protection against discrimination”: Waldman v. Canada, HRC Comm. No. 694/1996, UN Doc. CCPR/C/ 67/D/694/1996, decided Nov. 3, 1999, at [10.6]. See text at note 2287. 2418 See text at note 2289. H. Bielefeldt, “Report of the Special Rapporteur on Freedom of Religion or Belief on his Mission to Paraguay,” UN Doc. A/HRC/19/60/Add.1, Jan. 26, 2012, at [40]. See text at note 2293. 2421 See text at note 2288.

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with legal obligations.2422 Nor is there likely a breach in China’s decision to ban Christian “summer camps” – including Sunday schools2423 – since this could reasonably be deemed too peripheral to amount to an interference with the right to religious education, at least insofar as parents have alternative means to provide their children with instruction in their religious values.

4.8 Education The importance with which refugees view education is often evident during even their very earliest days in an asylum country.2424 Anxious for their children’s studies to resume before knowledge is lost, or simply to restore a sense of purpose in a situation otherwise without hope, refugees frequently establish classes for their children immediately upon reaching safety, using whatever resources are available to them.2425 Whether refugees anticipate repatriation or resettlement, resumption of the education of their children is 2422

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While finding fault with the unduly cumbersome process for securing exemption from the Norwegian curriculum, the Human Rights Committee observed as a general matter that “[t]he scope of article 18 covers not only protection of traditional religions, but also philosophies of life, such as those held by the authors. Instruction in religion and ethics may in the Committee’s view be in compliance with article 18, if carried out under the terms expressed in the Committee’s General Comment No. 22”: Unn and Ben Leirvåg v. Norway, HRC Comm. No. 1155/2003, UN Doc. CCPR/C/82/D/1155/2003, decided Nov. 3, 2004, at [14.2]. In that decision, the Committee recalled its earlier finding that there is no conflict with Art. 18(4) if instruction is “given in a neutral and objective way and respects the convictions of parents and guardians who do not believe in any religion”: Erkki Hartikainen v. Finland, HRC Comm. No. 40/1978, UN Doc. CCPR/C/OP/1, decided Apr. 9, 1981, at [10.4]. Joseph and Castan thus conclude that “[c]ompulsory religious or moral education does not conflict with article 18(4) if it provides for a pluralistic depiction of religion”: Joseph and Castan, ICCPR, at 586. See text at note 2281. International Extension College and World University Service (UK), “Refugee Education: The Case for International Action” (1986) (IEC and WUS, “Refugee Education”), at 8. “Gathering primary school age children together and organizing some kind of educational activity for them immediately improves the morale of the community. It also gives parents, often single parents, the relief and time they need to carry out their other urgent responsibilities. Such ‘schools’ may be in tents or under trees or in any form of shelter, at least to start with”: ibid. at 13. This may be the case particularly for refugees restricted to camps. “From the start, [Burmese refugees in Thailand] were proactive in setting up their own schools and the accompanying structures to administer them. All the teachers, principals, caretakers, teacher trainers, school committee members and camp education committee members are drawn from the community. This was the result of the refugees’ belief in the importance of education as well as the Thai government’s restrictions on foreigners living in the camps. As a result, there is a high level of community ownership over the education system”: S. Oh, “Education in Refugee Camps in Thailand: Policy, Practice and Paucity,” Background paper prepared for the Education for All Global Monitoring Report 2011, at 5.

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also critical to providing them with a sense of continuity and to enabling the children to retain their cultural identity, which may be challenged by life in the host country. But while the importance of refugee education is nearly universally recognized, only 61 percent of refugee children attend primary school, compared to 92 percent of children globally.2426 The inability of many refugee children to access education is perhaps not surprising in a world where the vast majority of refugees are the responsibility of its poorest states.2427 Unable in many cases to meet the educational needs of their own citizens, these countries simply lack the resources to provide adequate educational opportunities for refugees, whether within the national school system or through separate institutions. Cambodia, for example, has taken the view that because of its lack of resources it must prioritize the education of its own children over that of urban refugee children living in and around Phnom Penh.2428 Malaysia does not provide access to public education to Rohingya and other refugees; the NGO-run “learning centers” intended to serve as a parallel system are unaccredited and offer only primary education.2429 In other cases, lack of access to education may result from legal or practical barriers. Until 2016, for instance, Jordanian regulations barred enrollment of students three or more years older than those at their grade level, posing a significant obstacle for refugee children whose education had been interrupted during flight.2430 And generally applicable fees for admission,

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UNHCR, “Four Million Refugee Children go without Schooling,” Aug. 29, 2018. Indeed, “[a]s refugee children get older, this gap grows. Nearly two thirds of refugee children who go to primary school do not make it to secondary school. In total, 23 per cent of refugee children attend secondary school, compared to 84 per cent of children globally”: ibid. “80 per cent of all refugees are hosted by countries of the South, which shows that a disproportionate burden is carried by those least able to afford it”: V. Muñoz, “The Right to Education of Migrants, Refugees and Asylum-Seekers: Report of the Special Rapporteur on the Right to Education,” UN Doc. A/HRC/14/25, Apr. 16, 2010, at [16]. “Public education is also inaccessible to refugee children. The UNHCR has been pushing for more rights for refugees though Cambodia, being a very poor country, prioritizes its own citizens’ economic betterment over the enforcement of international treaty obligations relating to immigrants and asylum-seekers”: “Cambodia: Precarious Position of Refugees,” (2002) 114 JRS Dispatches (June 28, 2002). D. Sullivan, “Still Adrift: Failure to Protect Rohingya in Malaysia and Thailand,” Nov. 2016, at 7–8; see also Asia Pacific Refugee Rights Network, “Malaysia,” Mar. 2017, at 2. Human Rights Watch, “‘We’re Afraid for their Future’: Barriers to Education for Syrian Refugee Children in Jordan,” Aug. 2016, at 37–40. “With donor support, in the fall of 2016 Jordan plans to establish an accredited non-formal curriculum for up to 25,000 Syrian children ages 8 to 12 who would otherwise have been barred by the ‘three-year rule’; for children ages 13 and older, the Education Ministry has accredited a nongovernmental group to provide non-formal education. While donors are supporting the group to expand its program, access remains limited, and it has reached only a few thousand Syrian children since the Syria conflict began”: Human Rights Watch, “Education for Syrian Refugee Children: What Donors and Host Countries Should Do,” Sept. 16, 2016.

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tuition, and school uniforms have kept many urban refugees in Kampala from attending primary school.2431 Education is sometimes denied as a means of discouraging refugee flows, or encouraging premature repatriation. During the mid-1990s, for example, the Iranian government withdrew access to education from Afghan refugees, which had formerly been provided for free on the same terms as for nationals.2432 General policies of withholding access to education from undocumented Afghans, charging tuition for admission to those who were documented, and shutting down Afghan schools it refused to license continued in various forms until 2015,2433 when the Iranian Supreme Leader issued a decree ordering schools to admit all Afghan children.2434 Similarly, the Thai government was initially reluctant to approve any educational programs for Cambodian refugees in order “to prevent the institutionalization and perpetuation of the camps and the attendant likelihood of attracting more refugees from Cambodia.”2435 And South Africa has criminalized the provision of instruction to any “illegal foreigner,”2436 a policy that has forced the return home of Zimbabweans and others the government does not recognize as refugees.2437 2431

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“Of school-aged children and youth not enrolled in formal education, 82.7% reported the primary reason to be a lack of financial resources. Focus groups corroborated this finding, citing the high cost of living in Kampala, tuition fees, uniform costs, and other fees associated with enrolment have led to such low enrolment”: D. Boze, “Free Yet Unaffordable: The Figures behind Low Refugee Enrolment in Kampala,” Urban Refugees, Dec. 15, 2015. “In the 1980s, most Afghans in Iran were able to obtain residence and work permits that effectively entitled them to the same entitlements, including free education, health care, and food subsidies, as Iranian citizens. By the mid-nineties, Iranian policies aimed at stemming the flow of Afghan refugees and asylum seekers and encouraging repatriation had made many Afghan migrants undocumented, which in practice cut off their access to education, health care, and government subsidies. By 1998, UN figures indicated that only a third of Afghan children in Iran were enrolled in Iranian public schools”: Human Rights Watch, “Unwelcome Guests: Iran’s Violation of Afghan Refugee and Migrant Rights,” Nov. 2013, at 62. Ibid. at 61–66. F. Bezhan, “Class Act: Iranians Campaign to Allow Afghan Refugee Kids into School,” Radio Free Europe, Sept. 2, 2017. P. Gyallay-Pap, “Reclaiming a Shattered Past: Education for the Displaced Khmer in Thailand,” (1989) 2(2) Journal of Refugee Studies 257 (Gyallay-Pap, “Shattered Past”), at 265. J. Crush and G. Tawodzera, “Right to the Classroom: Educational Barriers for Zimbabweans in South Africa,” Southern African Migration Programme, Migration Policy Series No. 56 (2011), at 6–7. Ibid. at 9–10, 21. Thus, in addition to the general requirement that national and nonnational children alike produce birth certificates and immunization records in order to access enrollment, Zimbabweans are subject to the same condition as other undocumented migrants – that “[p]ersons classified as illegal aliens must, when they apply for admission [to public schools] for their children or for themselves, show evidence that

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When support for refugee education is provided, it often comes only after considerable delay,2438 and is frequently inadequate.2439 While refugee communities have at times proved capable of organizing their own education programs almost immediately upon reaching refuge,2440 gaps in support from host states and aid agencies sometimes result in inadequate materials and teacher training. For example, Thailand’s insistence that only local and Burmese teachers may work in refugee camps has resulted in a scarcity of trained instructors and the assignment of multiple grade levels to a single classroom.2441 Shortages of qualified teachers for Mozambican refugees in Malawi prevented teacher–student ratios from improving beyond 1:100.2442

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they have applied to the Department of Home Affairs to legalise their stay in the country”: ibid. at 7, 12–14. Furthermore, even if refugee children could travel home to obtain a birth certificate, “they risk being declared ‘undesirable’ upon exiting the country with no permit – so they are almost trapped in a Catch-22 situation”: M. Ncube, “Why South Africa’s Undocumented Teens are Dropping Out of School,” Refugees Deeply, Mar. 7, 2018. It is reported that education is often a low priority among organizations assisting refugees, considered a luxury by agencies that “optimistically ignore the fact that most short-term refugee situations become long term”: IEC and WUS, “Refugee Education,” at 8. As a result, “[t]here are no examples where education has been provided to refugees in the early stage of their exile, along with emergency relief services, except where refugees themselves have mobilized what limited resources they have to set up schools and literacy classes”: ibid. at 36. “We are now reaching the stage where some budget restrictions may simply prove too severe to sustain . . . In the educational sector, substantial cutbacks in the construction of new facilities and provision of materials will mean that many refugee children are denied access to schooling”: Forbes Martin, Refugee Women, at 46, quoting from the UNHCR Head of Program Management Services. Refugee-initiated schools were established, for example, in Djibouti, Thailand, Pakistan, and Sudan. “The spontaneity of such refugee self-help projects makes for speed . . . They may have very few or no resources, but they are unhampered by bureaucratic delays and they thus provide the very first community development activities and the first injections of hope in the future which are so vital in the emergency stages of a refugee crisis”: IEC and WUS, “Refugee Education,” at 13. “The Thai government insists that expatriate staff members do not work as teachers in the camps. The unanticipated benefit of this policy is that there is a high degree of community ownership over the education system. However, this has meant that teacher training is not as extensive and effective as it could be. [NGO ZOA Refugee Care Thailand’s] external teacher trainers travel to all seven camps throughout the year to train teachers and camp-based teacher trainers. However, this is not enough, given the high rates of teacher turnover and the low subject and skill base of the newer teachers. Further, there are not enough qualified people in camp to work as camp-based teacher trainers”: S. Oh, “Education in Refugee Camps in Thailand: Policy, Practice and Paucity,” Background paper prepared for the Education for All Global Monitoring Report 2011, at 8. See also C. Johnston, “A Model of Education in Hard-to-Reach Areas: The KTWG Model” (2016), at 44. This ratio was considered a great success, and was only achieved after the hiring of hundreds of additional teachers: D. Tolfree, “Refugee Children in Malawi: A Study of the Implementation of the UNHCR Guidelines on Refugee Children” (1991), at 20–21.

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South Sudanese refugees in Uganda, restricted to their camp’s makeshift school, suffered particularly from a lack of teaching supplies and basic equipment such as notebooks and pencils. A general shortage of both schools and teachers has moreover given rise to overcrowded classrooms, with some reporting a ratio of one teacher per 200 students.2443 The nature of refugee education provided in parts of the global South is also sometimes contentious. Whereas UNHCR once favored “education for repatriation,” with the curriculum to be based on that in the refugees’ country of origin,2444 the agency has more recently advocated the opposite approach where the prospect of returning home is diminished.2445 The shift in policy was adopted, for example, for Sudanese refugees in Chad when it became apparent from the ongoing conflict in Darfur that refugees would not soon be repatriating.2446 But conflict may arise between the refugee community and host government when there is a divergence of views about whether repatriation, integration, or resettlement is the most appropriate goal. For instance, the Tanzanian government of the mid-1980s believed that it made most sense to attempt to integrate Burundian refugees into the Tanzanian national culture. The priority of the refugees themselves, however, was to be prepared for repatriation to Burundi.2447 Differences in approach to education can also arise 2443

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“In Uganda’s Refugee Schools, Books and Pencils are Luxuries,” Washington Post, June 14, 2017. A. Avery, “Education: The Least of UNHCR’s Priorities? UNHCR Responds,” [Apr. 1996] Refugee Participation Network (Avery, “UNHCR Responds”). Particular importance was given to preservation by children of facility in the language of the country of origin: UNHCR, “Refugee Children: Guidelines on Protection and Care” (1994), at 113. “Use of country of asylum curriculum provides access to accredited, supervised and accountable education services. It is generally the most sustainable and protective option in the medium to long term, ensuring safe access to examinations and certification, access to teaching and learning materials, quality assurance and improved access to national education services including options to continue education at higher levels”: UNHCR, “Issue Brief 3: Curriculum Choices in Refugee Settings,” July 2015, at 2. These considerations led the agency to conclude that the advantages associated with national systems “outweigh the benefits of using the country of origin curriculum”: ibid. “Although the approach of using the Sudanese curriculum seemed like the most logical approach in 2003 when the camps were established, time proved that it was no longer the most efficient or sustainable for 2012 and beyond . . . Refugee teachers did not have access to qualified teacher training, materials were expensive and difficult to procure, and access to examinations was problematic, leading to many protection and financial concerns. In addition, UNHCR was unable to tap into development funding for education, nor to benefit from the deployment of qualified teachers, training or the distribution of materials by the [Ministry of Education]. The lack of quality control and proper oversight of education delivered in the camps resulted in a parallel education system offering questionable quality education that was effectively isolated from the services and resources available in Chad”: ibid. at 5. A. Ayok Chol, “Reflections on the Policies and Practices of Refugee Education in Tanzania,” paper presented at the University of Dar es Salaam, Tanzania, July 29, 1987.

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between refugees and international agencies. The curriculum developed by UNBRO for Cambodian refugees in the Thai border camps, for example, was based on Western methodology and Western industrialized standards, without reference to Khmer Buddhist culture and their traditional agrarian lifestyle. As Gyallay-Pap observed, The question [is] . . . whether an education system based largely on western industrial development norms, with its emphasis on productivity and consumption (or “raising the standard of living”), is appropriate for a people who have steadfastly remained agriculturalists attached to the land and traditional culture. The disparity between the modern Khmer school curriculum and the realities of Khmer culture and society is seen in the near absence of artistic, religious, and other traditional cultural subjects through which the Khmer have traditionally self-understood themselves.2448

More recently, a review of the curriculum in the Kenyan Baraka school for Sudanese refugees found that the academic-oriented focus was ill-suited for children in need of practical knowledge and survival skills, whether in Kenya or Sudan.2449 In developed countries, in contrast, recognized refugee children are nearly universally integrated into the national school systems of the asylum state.2450 But until refugee status is formally recognized, refugee children may face barriers to accessing education. For example, refugee children held in Greek First Reception and Identification Centers (hotspots) are not permitted to attend regular courses pending the processing of their claims;2451 children arriving in Hungary are similarly restricted to transit zones in which formal classes are unavailable.2452 Under the British government’s policy in place since 2002, children of refugee claimants are not entitled to attend local schools.2453 Nor are classes necessarily available in the accommodation centers 2448 2449

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Gyallay-Pap, “Shattered Past,” at 273. L. Karanja, “The Educational Pursuits and Obstacles for Urban Refugee Students in Kenya,” (2010) 1(3) International Journal for Cross-Disciplinary Subjects in Education 147, at 153. In the European Union it is now agreed that “[m]ember states shall grant full access to the education system to all minors granted international protection, under the same conditions as nationals”: Council Directive on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, Doc. 2011/95/EU (Dec. 13, 2011) (EU Qualification Directive (recast)), at Art. 27(1). European Union Agency for Fundamental Rights, “Current Migration Situation in the EU: Education,” May 2017, at 8. Only unaccompanied children under the age of fourteen are eligible to attend local public schools: ibid. at 8. “For the purposes of section 13 of the Education Act 1996 (c. 56) (general responsibility of local education authority) a resident of an accommodation centre shall not be treated as

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that house them; to the contrary, some children are reported to wait up to five months to attend regular classes.2454 Refugees and refugee claimants distributed across German Länder have faced even longer waits: those assigned to large cities have reported delays of up to one year for placement in public schools,2455 and some local schools are entitled to decide whether to accept the children of refugee claimants into their programs.2456 In principle, however, the European Union’s Reception Directive of 2013 requires that the minor children of refugee applicants receive education “under similar conditions as [the member state’s] own nationals” beginning not later than three months after the filing of an application for protection by either the child or his or her parents.2457 Another contentious issue is the language of instruction for refugee children. Whereas most jurisdictions in Canada2458 and some European states, including Denmark and Sweden,2459 do provide mother tongue instruction to

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part of the population of a local education authority’s area”: UK Nationality, Immigration and Asylum Act 2002, c. 41, at s. 36(1). Even those awaiting dispersal face barriers accessing education within their initial accommodation centers. According to one Cardiff council spokesperson, “[t]he Home Office is responsible for initial accommodation centres, including the one in Cardiff . . . There is no legal requirement for local authorities to provide education for children waiting for dispersal from initial accommodation by the Home Office”: D. Taylor, “Children Seeking Asylum in UK Denied Access to Education,” Guardian, Feb. 2, 2016. European Union Agency for Fundamental Rights, “Current Migration Situation in the EU: Education,” May 2017, at 10. Ibid. at 8. 2457 EU Reception Directive (recast), at Art. 14(1)–(2). Initially about half of the provinces of Canada (Quebec, Ontario, Manitoba, Saskatchewan, and Alberta) supported heritage language programs, to which refugee children had access: Canadian Education Association, “Heritage Language Programs in Canadian School Boards” (1991). In 2016, however, the Ministry of Education refused to renew a grant it had provided for twenty-five years to Heritage schools in Saskatchewan. “The [Saskatchewan Organization for Heritage Languages] is questioning the timing of the decision, when Canada is bringing in more refugees. It said the heritage classes are crucial support for newcomers searching for a way to feel at home in their new surroundings . . . [Minister of Education Don Morgan] said the heritage language and schools make the province a ‘culturally rich and diverse place,’ but said the decision to cut funding was made for economic reasons”: “Funding Pulled from Heritage Language Schools in Saskatchewan,” CBC News, Mar. 6, 2016. “In Sweden, refugees and asylum-seekers aged from 7 to 16 are legally entitled to bilingual education, and municipalities are obliged to offer mother-tongue tuition and Swedish as a second-language course. Denmark promotes a co-education policy in which bilingual and monolingual children learn together. Migrant children receive up to two years of basic instruction in Danish as a second language in separate teams or classes until they are ready for mainstream classes. ‘Compulsory language stimulation’ for bilingual children starts at age 3 and is supported by free materials provided at the municipal level”: V. Muñoz, “The Right to Education of Migrants, Refugees and Asylum-Seekers: Report of the Special Rapporteur on the Right to Education,” UN Doc. A/HRC/14/25, Apr. 16, 2010, at [45].

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refugee children, other states offer little or no such instruction. In Ireland, for example, the decision was made that Vietnamese refugee children should be “left to either sink or swim”2460 in English-language education. And Lebanese schools at both the primary and secondary levels increasingly teach courses entirely in English or French, which may be unfamiliar to Syrian refugee children.2461 Turkey, in contrast, addressed the challenge of Syrian students’ inability to understand the host country language by contracting with UNICEF to pay the salaries of about 13,000 Syrian teachers who otherwise lacked permission to work.2462 Secondary and post-secondary education is normally even less easily accessed by refugees. Most refugees in the global South have no access whatever to advanced formal education;2463 those who do may face bureaucratic barriers in practice.2464 For instance, Syrian refugees in Turkey must present 2460

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F. McGovern, “The Education of a Linguistic and Cultural Minority: Vietnamese Children in Irish Schools, 1979–1989,” (1993) 12 Irish Education Studies 92, at 95. “No special language provision was made for the Vietnamese children of school-going age in the mainstream system . . . The belief was that if children were submerged in the mainstream schooling system, they would pick up English language and somehow survive”: ibid. “Beginning in grade 7, Lebanese public schools teach most morning shift classes entirely in English or French – unfamiliar languages for many Syrian children. In afternoon shifts at primary schools, most classes are supposed to be taught in Arabic, but science and math classes are also taught in English or French, and in practice some teachers are teaching all classes in those languages. There are no Arabic language shifts at the secondary school level. Families also report inattentive teachers and a lack of textbooks in some schools”: Human Rights Watch, “Education for Syrian Refugee Children: What Donors and Host Countries Should Do,” Sept. 16, 2016. H. al-Jablawi, “Analysis: Turkey’s Underpaid Syrian Teachers Now Fearing being Phased Out,” News Deeply, Mar. 23, 2018. Prior to the 2016 contract with UNICEF, many Syrian teachers worked for meager stipends or as volunteers: Human Rights Watch, “‘When I Picture my Future, I See Nothing’: Barriers to Education for Syrian Refugee Children in Turkey,” Nov. 2015, at 48–49. Much of the restricted access is due to a lack of funding: “Of the limited funds available for education, primary education receives the lion’s share, with secondary an afterthought, even though it often costs more due to the need for more highly-qualified teachers, more textbooks and classrooms, and specialized equipment and infrastructure. In 2015, for example, UNHCR allocated just 13 percent of its education budget to secondary education, one-third of what it spent on primary”: B. Khawaja et al., “The Lost Years: Secondary Education for Children in Emergencies” (2017) (Khawaja, “Lost Years”). See also “Report of the Special Rapporteur on the Right to Education,” UN Doc. A/HRC/14/25, Apr. 16, 2010, at [69]. “In Lebanon, the Ministry of Education and the United Nations High Commissioner for Refugees (UNHCR) set a target last year of enrolling nearly 200,000 Syrian refugee children in public primary schools, but just 2,080 in public secondary schools. And while a back-to-school public outreach campaign advertised free and easy enrollment for refugee and Lebanese children in grades 1–9, it did not include higher grades”: Khawaja, “Lost Years”.

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an identity document to enroll, but the introduction in 2016 of a pre-screening procedure for “temporary protection status” applicants to receive the card generated months-long delays.2465 Moreover, the principal means for refugees in the less developed world to access secondary and university education has been through international funding; when their aid sources prove insufficient, the costs are often shifted to refugees. In the Kakuma refugee camp in Kenya, for example, secondary schools were forced to close when few students could afford the $10 fees imposed for attendance for each term.2466 Even in states where refugees are formally entitled to have access to higher education, authorities sometimes restrict opportunities out of fear that the admission of a refugee effectively deprives a citizen of access to higher education. For example, Tanzania once set a limit of 2 percent non-citizens in post-elementary educational institutions.2467 The requirement in some cases to submit original certifications from Syria to enroll in Jordanian secondary schools,2468 the high cost of transcript accreditation for university attendance in South Africa,2469 and the requirement that Afghans renounce refugee status to 2465

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Dutch Council for Refugees and European Council on Refugees and Exiles, “The DCR/ ECRE Desk Research on Application of a Safe Third Country and a First Country of Asylum Concepts to Turkey,” May 2016, at [26]. “The Kimlik is theoretically available to any Syrian who arrives in Turkey with an accepted form of Syrian ID – even a student ID will do. However, the Kimlik system is extremely slow in providing Syrian refugees with this document, and Turkish officials acknowledge the system is overwhelmed with requests”: C. Gentile and N. Nalbandian, “Turkish Rules Leave Syrian Refugee Children in Limbo,” National Public Radio, Aug. 24, 2016. “In some areas, Turkish public school administrators refused to allow Syrian children to enroll even if they had the identification cards, or the school officials demanded other documents”: Human Rights Watch, “Education for Syrian Refugee Children: What Donors and Host Countries Should Do,” Sept. 16, 2016. The identification document is required for accessing primary and secondary education as well as public healthcare: I. Leghtas and D. Sullivan, “‘Except God, we have no one’: Lack of Durable Solutions for Non-Syrian Refugees in Turkey” (Feb. 2016), at 6. The introduction of the fees was attributed to a shortage of international funding: O. Emmanuel, “Kakuma Secondary Schools Closed after Students’ Protest over Fees,” Eye Radio, Feb. 20, 2018. Forbes Martin, Refugee Women, at 47. “Syrian adolescents in Jordan described giving up trying to re-enroll in secondary school after spending years trying to meet inflexible requirements for school certification. Amal, 20, said she had completed all her high school exams ‘except the very last one’ before her family fled Syria, but when she tried to finish her exams in Jordan, Ministry of Education officials refused. ‘They said they needed proof I had passed 11th grade, but they wouldn’t accept my faxed form, and told me I needed to send in the original.’ She would have to return to Syria to obtain it, ‘but the border is closed, and anyway it is dangerous for me to go back’”: Khawaja, “Lost Years”. “[R]eports from the Western Cape detail the process of accredidation of their original transcripts as prohibitively expensive, rendering them ineligible to pursue employment or access to University education for which they are otherwise eligible. It currently costs R700 for transcripts to be accredited The process can take up to a year with awaiting

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study a restricted range of subjects in Iran2470 illustrate further difficulties faced by refugee student populations. While generally insufficiently funded in the less developed world, nonformal education can offer a useful alternative for those who face overcrowding in public schools or otherwise lack access to formal education.2471 Tensions over who should provide non-formal education, however, may result in limited access even to these opportunities. This was the case in Lebanon, in which it was determined that the non-formal programs previously established for Syrian refugees must operate only as a bridge to the formal sector; as a result of this policy, “any NGOs operating outside of this framework could be shut down.”2472 Moreover, educational programs designed to impart basic skills to adult refugees, including literacy and numeracy training, have been in short supply due to a generalized lack of funding.2473 Vocational programs tend to be more adequately funded than are basic educational initiatives,2474 but are generally “not a legal right and are often geographically and temporally limited, with more remote refugee camp settings being particularly underserved.”2475 Such programs are often funded by NGOs rather than states: the provision of health-worker education and teacher training in Burma, of language and other skills in South Africa, and of

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migrants not being able to study or work during that time”: I. Baatjes et al., “The Education Rights of Migrants, Refugees and Asylum Seekers in South Africa: Report to the Foundation for Human Rights,” University of Johannesburg Center for Education Rights and Transformation, June 2012, at 29. “In 2012 the Iranian government introduced a regulation that required that Afghan refugees wishing to attend university in Iran first renounce their refugee status and obtain an Afghan passport and student visa . . . Additionally, there are restrictions on the fields of study that Afghans can pursue in universities. In June 2012, foreigners including Afghans were banned from studying 30 subjects at Iranian universities, including atomic physics, nuclear engineering, aerospace engineering, and chemical engineering. It was unclear whether foreign students already enrolled in programs in those areas would be permitted to complete their studies. The Iranian government’s declaration of ‘no go areas’ for in-country Afghan migrants and refugees also prevents them from attending universities in those areas”: Human Rights Watch, “Unwelcome Guests: Iran’s Violation of Afghan Refugee and Migrant Rights,” Nov. 2013, at 66–67. M. Mendenhall et al., “Urban Refugee Education: Strengthening Policies and Practices for Access, Quality, and Inclusion” (Mar. 2017), at 43. Ibid. at 25–26. IEC and WUS, “Refugee Education,” at 31. An innovative success story is the Education Program for Sudanese Refugees (EPSR) established by Makerere University which provided refugees with library, reading, and training facilities, all at a location easily reached by foot from the area where more than half of the refugees lived: B. Sesnan, “Push and Pull: Education for Southern Sudanese in Exile, 1986–1996,” in G. Retamal and R. Aedo-Richmond eds., Education as a Humanitarian Response 59 (1998), at 69–70. IEC and WUS, “Refugee Education,” at 32. V. Muñoz, “The Right to Education of Migrants, Refugees and Asylum-Seekers: Report of the Special Rapporteur on the Right to Education,” UN Doc. A/HRC/14/25, Apr. 16, 2010, at [65].

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information technology courses in Morocco serve as positive examples in this regard.2476 Without adequate oversight or coordination, however, services implemented by participating NGOs sometimes result in duplication or gaps in the types of courses offered.2477 In other cases, the implementation of training programs by private providers may pose other barriers to refugees wishing to participate. In Pakistan, for example, the state’s lack of oversight of such providers was found to result in exorbitant fees for courses that would not necessarily lead to official certification.2478 In the developed world, access to secondary and post-secondary education, as well as to language courses, continuing education courses, and informal orientation courses is generally provided to recognized refugees on at least the same terms as that afforded other long-term lawful residents. In the European Union, for example, refugees and recipients of subsidiary protection status benefit from access to the general education system, including training, under the same conditions as lawfully resident third-country nationals.2479 In contrast, the diversion of refugee students with limited English ability and no academic records into an inferior, privately operated school in the United States can deny a quality education to those affected.2480 The most serious challenge for refugees seeking to avail themselves of educational opportunities in the developed world is the distinction sometimes drawn between recognized refugees and those whose asylum claims have yet to 2476 2477

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Ibid. at [64]. K. Jacobsen and S. Fratzke, “Building Livelihood Opportunities for Refugee Populations: Lessons from Past Practice,” Sept. 2016, at 10. G. Nyangweso, “Factors Influencing Urban Refugee Youth Access to Technical and Vocational Education and Training Programmes in Nairobi County, Kenya,” University of Nairobi Research Paper (2014), at 17. In the European Union, for example, “Member States shall allow adults granted international protection access to the general education system, further training or retraining, under the same conditions as third country nationals legally resident”: EU Qualification Directive (recast), at Art. 27(2). At issue was the district’s forced diversion of students aged seventeen to twenty-one to a private school with an accelerated curriculum on the basis of their limited English proficiency: “[T]he school district has refused to enroll the plaintiffs at McCaskey, the regular public high school, even though it has a transitional program called the ‘International School,’ which is specifically designed to address the needs of [limited English proficiency] students who are new to the country. Instead, the district rejects their enrollment completely or, if they persist, assigns them to Phoenix Academy, an alternative high school for ‘underachieving’ students run by a private company, Camelot Education”: ACLU Pennsylvania, “Issa v. School District of Lancaster,” www.aclupa.org/ our-work/legal/legaldocket/issa-v-school-district-lancaster/, accessed Feb. 20, 2020. Following an injunction ordering the district to permit the affected students to enroll in McCaskey’s International Program (Issa et al. v. School District of Lancaster, 847 F. 3d 121 (US CA3, Jan. 30, 2017)), a settlement was reached to provide for future access to the program for all: ACLU Pennsylvania, “Lancaster School District Settlement will give all Future Immigrant Students Access to an Appropriate Education,” Mar. 29, 2017.

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be formally determined, or who are granted an alternative form of status. The European Union treats access to vocational training for refugees awaiting status verification as a matter of pure discretion for state parties.2481 In the result, basic orientation programs, continuing education classes, and even language programs are denied to refugee claimants in some countries. For example, in 2007 Britain withdrew its automatic fee remission for all refugee claimants,2482 replacing it with a six-month residency requirement that must be met to access English language courses at 50 percent of the usual cost.2483 Refugee claimants in Canada, Sweden, and the Netherlands are not eligible for language instruction at all, while those in France and Norway must comply with accommodation requirements in order to retain eligibility.2484 Much the same pattern of differentiation holds for more formal sorts of advanced education. While recognized refugees in the global North are for the most part assimilated to long-term residents for purposes of eligibility for grants and bursaries to attend university as well as recognition of their credentials,2485 refugees whose claims have not yet been formally assessed may be

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“Member States may allow applicants access to vocational training irrespective of whether they have access to the labour market”: EU Reception Directive (recast), at Art. 16. In contrast, the EU Qualification Directive (recast) obliges Member States to “ensure that activities such as employment-related education opportunities for adults, vocational training, including training courses for upgrading skills, practical workplace experience and counselling services afforded by employment offices, are offered to beneficiaries of international protection, under equivalent conditions as nationals”: at Art. 26(2). “Esol (English for speakers of other languages), as all teaching of English as a foreign language has become known in recent years, ‘will no longer attract automatic fee remission,’ the Learning and Skills Council (LSC) has announced. From next year, only the unemployed and people receiving income-based benefits will have their fees waived if they want to learn English. Adult asylum seekers who are awaiting the outcome of applications to stay in Britain will not qualify for free Esol, or indeed subsidised further education of any kind. ‘Only those who are granted refugee status, humanitarian protection or discretionary leave by the government will be eligible,’ says the LSC. Asylum seekers aged under 18 will still be able to get free Esol and further education”: P. Kingston, “Too Expensive in Any Language: Demand for Free English Classes is Too High – So Now Asylum Seekers and Others will have to Pay to Learn,” Guardian, Oct. 23, 2006. Refugee Action, “Let Refugees Learn: Challenges and Opportunities to Improve Language Provision to Refugees in England,” May 2016, at 10. Ibid. at 13–14. Art. 28(1) provides for equal treatment “between beneficiaries of international protection and nationals in the context of the existing recognition procedures for foreign diplomas, certificates and other evidence of formal qualifications,” whereas Art. 28(2) obliges Member States to “endeavour to facilitate full access for beneficiaries of international protection who cannot provide documentary evidence of their qualifications to appropriate schemes for the assessment, validation and accreditation of their prior learning”: EU Qualification Directive (recast), at Art. 28.

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denied such access.2486 In the United Kingdom, for instance, refugee claimants are likened to overseas applicants for purposes of tuition and student fees, though some universities choose to regard them on the same terms as nationals.2487 Restrictions in Australia are so severe that even recognized refugees may be barred from accepting scholarships by virtue of their temporary visa status.2488 In other areas, barriers faced in accessing tertiary education include the difficulty of producing (and even non-recognition of) school diplomas or exam results, exorbitant fees, and enrollment quotas giving preference to nationals over foreign residents.2489 Refugee Convention, Art. 22 Public Education 1. The Contracting States shall accord to refugees the same treatment as is accorded to nationals with respect to elementary education. 2. The Contracting States shall accord to refugees treatment as favourable as possible, and, in any event, not less favourable than that accorded to aliens generally in the same circumstances, with respect to education other than elementary education and, in particular, as regards access to studies, the recognition of foreign school certificates, diplomas and degrees, the remission of fees and charges and the award of scholarships. Economic, Social and Cultural Covenant, Art. 13(1)–(2) 1. The States Parties to the present Covenant recognize the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. They further agree that 2486

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With the exception of minor children of refugees, access to advanced forms of education by persons seeking refugee status is simply not addressed by the European Union, leaving the matter to the discretion of state parties: EU Reception Directive (recast), at Art. 14(1). Refugees into Teaching Information, “Fees and Funding,” 2013, at 1–2. Refugee Council of Australia, “Barriers to Education for People Seeking Asylum and Refugees on Temporary Visas,” Dec. 2015, at 4–5. “Application processes typically require documentation that refugees may not have, including birth certificates, school diplomas, and examination results. In countries of first asylum, refugees who seek to access higher education are often treated by national institutions as foreign students, with the exorbitant fees that this status usually entails. In addition, some universities have enrolment quotas, giving priority to nationals. Further, there are sometimes matriculation restrictions that serve to limit enrolment by certain refugee groups such as in the case of Makerere University in Uganda, which in 2005 did not accept translations of high school diplomas, making it impossible for anyone educated in DRC with a French-language diploma, for example, to enter the university”: S. Dryden-Peterson, “The Politics of Higher Education for Refugees in a Global Movement for Primary Education,” (2010) 27(2) Refuge 13.

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education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace. 2. The States Parties to the present Covenant recognize that, with a view to achieving the full realization of this right: (a) Primary education shall be compulsory and available free to all; (b) Secondary education in its different forms, including technical and vocational secondary education, shall be made generally available and accessible to all by every appropriate means, and in particular by the progressive introduction of free education; (c) Higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education; (d) Fundamental education shall be encouraged or intensified as far as possible for those persons who have not received or completed the whole period of their primary education; (e) The development of a system of schools at all levels shall be actively pursued, an adequate fellowship system shall be established, and the material conditions of teaching staff shall be continuously improved. The Refugee Convention broke with precedent by making a clear commitment to provide at least the most basic forms of education to refugees (and their children)2490 on terms of equality with nationals. While the predecessor treaties of 1933 and 1938 required only that educational rights be granted to refugees to the extent enjoyed by aliens in general,2491 the drafters of the current Refugee Convention were firmly committed to the belief that public elementary education 2490

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As Grahl-Madsen observes, “the present paragraph will on the whole only be meaningful if it is interpreted to give children of refugees the rights for which it provides, unless they have greater rights in their own right, i.e. as nationals of the country of residence”: Grahl-Madsen, Commentary, at 86. Grahl-Madsen refers in this regard to Recommendation B of the Final Act of the Conference of Plenipotentiaries, in which the state representatives “[n]ot[ed] with satisfaction that, according to the official commentary of the Ad Hoc Committee on Statelessness and Related Problems, the rights granted to a refugee are extended to members of his family”: ibid. See also, for example, the comment of the French representative in relation to Art. 22(2) that “[t]he fundamental purpose of article [22] was to prevent the son of a refugee from being forbidden to enter a given faculty [emphasis added]”: Statement of Mr. Juvigny of France, UN Doc. E/AC.32/SR.37, Aug. 16, 1950, at 26. The relevant provision in these earlier treaties stipulated that “[r]efugees shall enjoy in the schools, courses, faculties and universities of each of the Contracting Parties, treatment as favorable as other foreigners in general. They shall benefit in particular . . . by the total or

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– meaning “elementary education over which the Contracting State concerned had direct control, whether financial or other”2492 – should be made available to all refugees without qualification, and on terms of equality with citizens of the host state. The decision of the drafters that all refugees should have immediate and unconditional access to the same forms of public elementary education as nationals was in part the product of an awareness that “schools are the most rapid and most effective instruments of assimilation.”2493 But most fundamentally, as the South African Supreme Court of Appeal has pointedly observed, there was an understanding that “[t]he freedom to study is . . . inherent in human dignity, for without it a person is deprived of the potential for human fulfilment.”2494 This strong position of principle explains why the Universal Declaration’s duty to provide elementary education to “everyone” is restricted neither to nationals, nor even to children.2495

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partial remission of fees and charges and the award of scholarships”: United Nations, “Statelessness,” at 58. Statement of Mr. Hoare of the United Kingdom, UN Doc. A/CONF.2/SR.35, July 25, 1951, at 8. Mr. Hoare’s position followed from the clarification of the American representative to the Ad Hoc Committee that “the words ‘public education’ . . . were intended to apply not only to State-owned schools but also to private schools receiving Government subsidies”: Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.23, Feb. 10, 1950, at 7. Indeed, while the general rule agreed to was that the headings for articles in the Convention should not have independent legal force, the President of the Conference of Plenipotentiaries noted that an exception should be made “in the case of article 22, ‘Public education’”: Statement of the President, Mr. Larsen of Denmark, UN Doc. A/CONF.2/SR.35, July 25, 1951, at 37. As Zimmermann and Dörschner conclude, “the drafters . . . stated their intention to limit the scope of the provision to cover only access to public institutions and to any education subsidized, in whole or in part, by public funds”: A. Zimmermann and J. Dörschner, “Article 22,” in A. Zimmermann ed., The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary 1019 (2011) (Zimmermann and Dörschner, “Article 22”), at 1031. Secretary-General, “Memorandum,” at 40. Minister of Home Affairs v. Watchenuka, (2004) 1 All SA 21 (SA SCA, Nov. 28, 2003), per Nugent J.A. at [36]. The same court was clear that while the right to education could not be universally guaranteed by any state to all who might wish to live in it, “where, for example, the person concerned is a child who is lawfully in this country to seek asylum (there might be other circumstances as well), I can see no justification for limiting that right so as to deprive him or her of the opportunity for human fulfilment at a critical period . . . A general prohibition that does not allow for study to be permitted in appropriate circumstances is in my view unlawful”: ibid. This approach is consistent with the recent affirmation by the Committee on Economic, Social and Cultural Rights that the duty to provide education “to everyone” includes, for example, a duty towards the elderly. “Article 13, paragraph 1, of the Covenant recognizes the right of everyone to education. In the case of the elderly, this right must be approached from two different and complementary points of view: (a) the right of elderly persons to benefit from educational programmes; and (b) making the know-how and experience of elderly persons

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4.8.1 Elementary Education The Convention does not, however, offer a clear definition of “elementary” education.2496 Based on concordance with the equally authoritative Frenchlanguage text – which refers to “l’enseignement primaire” (and not, for example, “l’enseignement élémentaire”) – it might reasonably be thought that Art. 22(1) of the Refugee Convention governs only access to primary, as distinguished from secondary or tertiary, education.2497 Under this interpretation, Art. 22(1) regulates only the right of children to participate in presecondary, grade school education.2498 On the other hand, analysis of the only cognate norm in existence at the time of the Refugee Convention’s drafting – Art. 26 of the Universal Declaration of Human Rights – suggests that “[t]here is no fixed border between elementary and fundamental education. Elementary education includes fundamental education such as literacy, arithmetic and basic orientation into society.”2499

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available to younger generations”: UN Committee on Economic, Social and Cultural Rights, “General Comment No. 6: The Economic, Social and Cultural Rights of Older Persons” (1995), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [36]. See S. Blay and M. Tsamenyi, “Reservations and Declarations under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees,” (1990) 2(4) International Journal of Refugee Law 527 (Blay and Tsamenyi, “Reservations”), at 547: “The difficulty with Article 22(1) is that the Convention does not define what is ‘elementary education.’ Thus in the case of States where primary education stretches from primary school through to high school and therefore covers education before tertiary studies, Article 22(1) imposes a significant burden.” Indeed, in a draft submitted to the Ad Hoc Committee, the French representative suggested that the term “primary education” ought to be employed in the English-language text: France, “Draft Convention,” at 7. The French government appears to have seen no substantive divergence between its language and that proposed by the United Nations draft referring to “elementary education,” and therefore withdrew its proposal: UN Doc. E/AC.32/SR.15, Jan. 27, 1950, at 9. In line with this view, Grahl-Madsen suggests that “‘[e]ducation other than elementary education’ is normally understood as education beyond the grade school”: GrahlMadsen, Commentary, at 87. The term “elementary school” is moreover commonly used in the United States to mean what is usually referred to as “primary school” in most other English-speaking countries (“a school including usually the first four to the first eight grades and often a kindergarten”): Merriam-Webster Dictionary, www.merriam-webster.com/dic tionary/elementary%20school, accessed Feb. 20, 2020. See e.g. Zimmermann and Dörschner, “Article 22,” at 1035–1037. The authors argue that because the drafters of the Refugee Convention saw no difference between “primary” and “elementary” education and given that Art. 13 of the Economic Covenant distinguishes between “primary” and “fundamental” education with the former applying only to children, “mutatis mutandis . . . it follows that the concept of ‘elementary’ education [in] Art. 22, para. 1 refers to the education of children only”: ibid. at 1037. While plausible at least as a construction of the French-language text of Art. 22(1), the equation is not quite as simple as suggested given that the Economic Covenant conceives of education as a four-part (not two-part, as under the Refugee Convention) notion – primary, secondary, higher, and fundamental – with no reference at all to “elementary” education: Economic Covenant, at Art. 13. P. Arajäravi, “Article 26,” in A. Eide et al. eds., The Universal Declaration of Human Rights: A Commentary 405 (1992) (Arajäravi, “Article 26”), at 408–409. On the other

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Under this more inclusive understanding, Art. 22(1)’s guarantee of access to elementary education requires not just that refugee children have access to primary education, but also that fundamental education be open to adult refugees. This broader approach moreover aligns with the view of the Committee on Economic, Social and Cultural Rights that primary and fundamental education are essentially aspects of the same notion;2500 indeed, Art. 13(2)(d) of the Economic Covenant expressly provides that “fundamental education” is education “for those persons who have not received or completed the whole period of their primary education [emphasis added].”2501 Read in this context,2502 in a manner that best advances the Convention’s effectiveness2503 and which avoids age-based discrimination,2504 Art. 22(1)’s guarantee of access to public “elementary education” is thus most sensibly understood to include both primary education and fundamental education, with the latter compris[ing] both essential learning tools (such as literacy, oral expression, numeracy, and problem solving) and the basic learning content (such as knowledge, skills, values, and attitudes) required by human beings to be able to survive, to develop their full capacities, to live and work in dignity, to participate fully in development, to improve the quality of their lives, to make informed decisions, and to continue learning.2505

This interpretation is also consistent with the textual framing of the beneficiary class for Art. 22(1) – namely “refugees,” rather than, for example, “refugee children” as would have been appropriate if only access to primary education had been envisaged. Indeed, the beneficiary class for rights under Art. 22(1) is intentionally broad,2506 not limited, for example, only to refugees lawfully “present” or “staying”

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hand, it must be acknowledged that Art. 26 does textually distinguish “elementary” from “fundamental” education, with only the former said to be “compulsory”: Universal Declaration, at Art. 26. “While primary education is not synonymous with basic education, there is a close correspondence between the two. In this regard, the Committee endorses the position taken by UNICEF [that] [‘p]rimary education is the most important component of basic education’”: UN Committee on Economic, Social and Cultural Rights, “General Comment No. 13: The Right to Education” (1999), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [9]. The Committee on Economic, Social and Cultural Rights uses the terms “basic” and “fundamental” education interchangeably: ibid. at [22]. Economic Covenant, at Art. 13(2)(d). 2502 See Chapter 2.2. 2503 See Chapter 2.3. This concern arises from the interpretation advanced by Zimmermann and Dörschner (see note 2498) that limits Art. 22(1) to children. The Committee on Economic, Social and Cultural Rights adopted this definition of “fundamental education” set by Art. 1 of the 1990 World Declaration on Education for All: UN Committee on Economic, Social and Cultural Rights, “General Comment No. 13: The Right to Education” (1999), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [22]. This interpretation is borne out in state practice. For example, in formulating their reservations to Art. 22(1) of the Convention, Egypt, Mozambique, Zambia, and

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in a state party – meaning that states are “under a duty to fulfil their obligations under Art. 22 with regard to refugees not (yet) present on their territory.”2507 As such, the denial of access to elementary education to children detained in Greek First Reception and Identification Centers (hotspots)2508 and in Hungarian transit zones2509 is in violation of Art. 22(1). Nor is it lawful for South Africa to stigmatize the children of Zimbabwean refugee claimants as “illegal foreigners” and to deny them education on that basis.2510 Germany similarly breached its duties when it acquiesced in protracted delays in accessing education and especially when it failed to countermand local decisions to exclude refugee children from public schools altogether.2511 And Turkey was wrong to deny refugee children access to elementary education on the grounds that they did not possess an identity card that the government conceded it was incapable of providing in a timely way.2512 Nor even may education be delayed until formal status determination procedures are commenced or concluded2513 – meaning that the decision of the European Union to condition access to education on the lodging of a protection application, and even then to authorize a delay of as much as three months,2514 is out of line with the requirements of Art. 22(1).2515

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Zimbabwe each noted their inability to assimilate refugees to their own citizens for purposes of access to public elementary education. Zimmermann and Dörschner, “Article 22,” at 1030. See also Robinson, History, at 123 (“It must be assumed that paragraph 1 is equally applicable to both resident and non-resident refugees, in view of the generally accepted nature of public elementary education”); Weis, Travaux, at 170 (“The Article refers to ‘refugees’ without qualification such as ‘lawfully stay[ing]’”); and Grahl-Madsen, Commentary, at 86 (“Article 22 applies to ‘refugees’ – there is no condition as to residence, lawfulness of presence in territory, etc.”). The English Court of Appeal has thus correctly recognized that “[a]ll asylum seekers . . . require to be housed and fed while their claims are being processed. Likewise their children require to be educated during that interim period”: Hannah Blakesley v. Secretary of State for the Home Department, [2015] EWCA Civ 141 (Eng. CA, Feb. 26, 2015), at [40]. See text at note 2451. 2509 See text at note 2452. 2510 See text at note 2436. See text at notes 2455–2456. See text at note 2465. Noteworthy in this regard is the encouragement of two UN supervisory bodies for states “to expeditiously reform regulations and practices that prevent migrant children, in particular undocumented children, from registering at schools and educational institutions”: UN Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families and UN Committee on the Rights of the Child, “Joint General Comment No. 4: State Obligations regarding the Human Rights of Children in the Context of International Migration in Countries of Origin, Transit, Destination and Return,” UN Doc. CMW/C/GC/4-CRC/C/GC/23, Nov. 16, 2017, at [60]. “Paragraph 1 was inspired by Art. 26(1) of the Universal Declaration of Human Rights which proclaimed that elementary education should be compulsory and free. It is obvious that in compulsory and free education refugees cannot be treated differently from nationals”: Robinson, History, at 122. See text at note 2457. Even under arguably difficult circumstances, there has been little tolerance of delay in ensuring that refugee children are granted access to education. For example, in its

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Equally important, the right guaranteed is not simply to access elementary education in some vague sense, but rather to receive “the same treatment as is accorded to nationals with respect to elementary education [emphasis added].”2516 While the specific linguistic or psychosocial needs of refugees should be catered for,2517 equivalent qualitative benchmarks must be respected and “separate schooling for refugees may exist for a limited period only and must be based on reasons other than mere organizational convenience.”2518 For this reason, Uganda’s insistence that South Sudanese refugee children have access only to makeshift refugee-specific schools that were both overcrowded and under-resourced,2519 Malaysia’s relegation of Rohingya refugee children to unaccredited, parallel NGO-run “learning centers,”2520 the assignment by the United States of refugees with limited English-language skills to inferior, privately operated schools,2521 and the British rule forcing the children of asylum applicants to endure long delays to access schooling in a reception center rather than being allowed to attend local schools2522 are all policies unlikely to pass muster under Art. 22(1). Indeed, the EU’s decision to guarantee refugee children access to education only under “similar conditions as nationals”2523 – rather than, as the Refugee Convention requires, to guarantee “the same treatment as is accorded to nationals” – is not in accordance with Convention requirements.

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scrutiny of the report of Poland, the Committee on the Rights of the Child expressed its “concern[] that children waiting for their refugee claims to be processed do not have opportunities for education if they are housed in emergency blocks”: UN Committee on the Rights of the Child, “Concluding Observations on the Report of Poland,” UN Doc. CRC/C/121 (2002), at [539]. Indeed, states are likely under a duty to make any elementary education which is generally mandatory for citizens also mandatory for refugees: Zimmermann and Dörschner, “Article 22,” at 1033. “The principle of equality of treatment requires States to . . . [adopt], where necessary, targeted measures . . . including additional language education, additional staff and other intercultural support”: UN Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families and UN Committee on the Rights of the Child, “Joint General Comment No. 4: State Obligations regarding the Human Rights of Children in the Context of International Migration in Countries of Origin, Transit, Destination and Return,” UN Doc. CMW/C/GC/4-CRC/C/GC/23, Nov. 16, 2017, at [62]. Zimmermann and Dörschner, “Article 22,” at 1033–1034. As two UN supervisory committees have correctly insisted, “States should take measures aimed at prohibiting and preventing any kind of educational segregation”: UN Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families and UN Committee on the Rights of the Child, “Joint General Comment No. 4: State Obligations regarding the Human Rights of Children in the Context of International Migration in Countries of Origin, Transit, Destination and Return,” UN Doc. CMW/C/GC/4-CRC/C/GC/23, Nov. 16, 2017, at [62]. See text at note 2443. 2520 See text at note 2429. 2521 See text at note 2480. See text at notes 2453–2454. 2523 See text at note 2457.

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It is also likely that at least some of the adult refugee claimants denied access to fundamental education programs pending verification of their status are not being granted their full rights under Art. 22(1). While limitations may be validly placed on access to the broader range of adult education programs,2524 any initiative that provides adult citizens with elementary education (e.g. in literacy, oral expression, numeracy, and problem solving) must be available to refugees, whether formally recognized as such or not,2525 on terms of equality with nationals. The indeterminate and status-based bar on access to language education set by Canada, the Netherlands, and Sweden (refusing funded language training until formal verification of refugee status is complete),2526 as well as the British decision to delay subsidized language training for refugees for six months2527 would thus breach Art. 22(1) of the Refugee Convention since citizens seeking comparable elementary education would be subject to no such constraints. The decisions of France and Norway to condition access to free language training on the unlawful2528 requirement to reside in an accommodation center2529 are also self-evidently and impermissibly conditioned on a requirement not applicable to citizens. That said, it is important to avoid an interpretation of Art. 22(1) that would result in “equality with a vengeance.” For example, Jordan’s past insistence on applying its general policy disallowing the enrollment of children who are three or more years older than those at their grade level2530 failed to take account of the unique circumstances of many refugee children who may not have been able to attend school due to war or persecution in the home country, and whose education was often delayed by the process of flight and reestablishment – thus raising concerns about substantive equality of treatment. Similarly, Thailand’s seemingly compliant policy of requiring that local (rather than expatriate) teachers run classes for refugee children living in camps also raises concerns about substantive equality of treatment given that the acute shortage of local teachers means that, at best, only poorly trained teachers were made available to educate refugee children.2531 Importantly, the Refugee Convention’s guarantee of access to elementary education is more comprehensive than the cognate right under Art. 13(2)(a) of the Covenant on Economic, Social and Cultural Rights. Under the Covenant, some flexibility in achieving elementary education for all is available, at least to poorer states,2532 as rights under that treaty need only be implemented 2524 2525 2526 2529 2532

See text at note 2570 ff. The declaratory nature of refugee status is discussed at Chapter 3.1. See text at note 2484. 2527 See text at notes 2482–2483. 2528 See Chapter 4.2.4. See text at note 2484. 2530 See text at note 2430. 2531 See text at note 2441. For developed countries, on the other hand, the duties to provide elementary education under the Refugee Convention and the Economic Covenant are essentially indistinguishable as wealthier states cannot easily meet the test for valid failure to satisfy such a core right. As Craven has written, “[a]lthough economic considerations will always play a part

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progressively,2533 albeit without discrimination.2534 Even though “the most basic forms of education” have been recognized as a “core” entitlement,2535

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in any calculation relating to the implementation of the rights, the presumption is that developed States are under an obligation to implement the provisions of the Covenant immediately, the progressive nature of the obligations applying only to those States that lack sufficient resources to do so themselves”: Craven, ICESCR Commentary, at 132–133. See also UN Committee on Economic, Social and Cultural Rights, “General Comment No. 3: The Nature of States Parties’ Obligations” (1990), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [5] (“[T]here are a number of other provisions in the International Covenant on Economic, Social and Cultural Rights, including article . . . 13(2)(a) . . . which would seem to be capable of immediate application by judicial and other organs in many national legal systems. Any suggestion that the provisions indicated are inherently non-self-executing would seem to be difficult to sustain”). “The term ‘progressive realization’ is often used to describe the intent of this phrase. The concept of progressive realization constitutes a recognition of the fact that full realization of all economic, social and cultural rights will generally not be able to be achieved in a short period of time. In this sense the obligation differs significantly from that contained in article 2 of the International Covenant on Civil and Political Rights which embodies an immediate obligation to respect and ensure all of the relevant rights. Nevertheless, the fact that realization over time, or in other words progressively, is foreseen under the Covenant should not be misinterpreted as depriving the obligation of all meaningful content. It is on the one hand a necessary flexibility device, reflecting the realities of the real world and the difficulties involved for any country in ensuring full realization of economic, social and cultural rights. On the other hand, the phrase must be read in the light of the overall objective, indeed the raison d’être, of the Covenant which is to establish clear obligations for States parties in respect of the full realization of the rights in question. It thus imposes an obligation to move as expeditiously and effectively as possible towards that goal. Moreover, any deliberately retrogressive measures in that regard would require the most careful consideration and would need to be fully justified by reference to the totality of the rights provided for in the Covenant and in the context of the full use of the maximum available resources”: UN Committee on Economic, Social and Cultural Rights, “General Comment No. 3: The Nature of States Parties’ Obligations” (1990), UN Doc. HRI/GEN/ 1/Rev.7, May 12, 2004, at [9]. See generally Chapter 1.5.4 at note 405 ff. The flexibility to implement the right to primary education is, however, significantly constrained by Art. 14 of the Covenant. This provision requires state parties which do not offer free and compulsory primary education upon accession to the Covenant to prepare and file – within two years – a “detailed plan of action for the progressive implementation, within a reasonable number of years, to be fixed in the plan, of the principle of compulsory education free of charge for all [emphasis added]”: Economic, Social and Cultural Covenant, at Art. 14. The supervisory committee has therefore held that “the plan must specifically set out a series of targeted implementation dates for each stage of the progressive implementation of the plan. This underscores both the importance and the relative inflexibility of the obligation in question. Moreover, it needs to be stressed in this regard that the State party’s other obligations, such as non-discrimination, are required to be implemented fully and immediately”: UN Committee on Economic, Social and Cultural Rights, “General Comment No. 11: Plans of Action for Primary Education” (1999), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [10]. “In its General Comment 3, the Committee confirmed that States parties have ‘a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels’ of each of the rights enunciated in the Covenant, including ‘the most basic forms of

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meaning that any generalized failure to ensure access to them is prima facie evidence of a breach of the Covenant,2536 poorer states may nonetheless seek to justify their failure to provide elementary education by reference to a true lack of resources.2537

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education.’ In the context of article 13, this core includes an obligation: to ensure the right of access to public educational institutions and programmes on a non-discriminatory basis; to ensure that education conforms to the objectives set out in article 13(1); [and] to provide primary education for all in accordance with article 13(2)(a)”: UN Committee on Economic, Social and Cultural Rights, “General Comment No. 13: The Right to Education” (1999), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [57]. “Thus, for example, a State party in which any significant number of individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter and housing, or of the most basic forms of education is, prima facie, failing to discharge its obligations under the Covenant. If the Covenant were to be read in such a way as not to establish such a minimum core obligation, it would be largely deprived of its raison d’être”: UN Committee on Economic, Social and Cultural Rights, “General Comment No. 3: The Nature of States Parties’ Obligations” (1990), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [10]. See generally Chapter 1.5.4 at note 440. Thus, for example, “[w]hen discussing, for example, the report of Zaïre, the Committee made it clear that charging fees for primary education is contrary to article 13, paragraph 2(a). A State party cannot justify such a measure by referring to severe economic circumstances”: “The Right to Education as a Human Right: An Analysis of Key Aspects: Background Paper submitted by Fons Coomans,” UN Doc. E/C.12/1998/16, Sept. 29, 1998, at [5]. “In order for a State party to be able to attribute its failure to meet at least its minimum core obligations to a lack of available resources it must demonstrate that every effort has been made to use all resources that are at its disposition in an effort to satisfy, as a matter of priority, those minimum obligations. The Committee wishes to emphasize, however, that even where the available resources are demonstrably inadequate, the obligation remains for a State party to strive to ensure the widest possible enjoyment of the relevant rights under the prevailing circumstances. Moreover, the obligations to monitor the extent of the realization, or more especially of the non-realization, of economic, social and cultural rights, and to devise strategies and programmes for their promotion, are not in any way eliminated as a result of resource constraints”: UN Committee on Economic, Social and Cultural Rights, “General Comment No. 3: The Nature of States Parties’ Obligations” (1990), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [10]–[11]. See generally Chapter 1.5.4 at note 441. The argument is sometimes also made that the Covenant’s duty to provide primary education is an “economic right,” thus allowing less developed countries legitimately to withhold it from non-citizens pursuant to Art. 2(3) of the Covenant (“Developing countries, with due regard to human rights and their national economy, may determine to what extent they would guarantee the economic rights recognized in the present Covenant to non-nationals”: Economic, Social and Cultural Covenant, at Art. 2(3)). In truth, the right to education ought not to be understood to be only an economic right and would therefore not be subject to derogation by less developed countries under Art. 2(3). “The right to education . . . is the most outstanding example of the ‘cultural rights’ category, although some scholars maintain that it is a social right”: M. Nowak, “The Right to Education,” in A. Eide et al. eds., The Universal Declaration of Human Rights: A Commentary 189 (1992), at 196. Yet the Committee on Economic, Social and Cultural Rights has muddied the waters by asserting that the right to education “has been variously classified as an economic right, a social right and a cultural right. It is all of these”: UN Committee on Economic, Social and Cultural Rights,

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This flexibility would not, however, suffice to justify the Thai government’s reluctance to educate Khmer refugees2538 or Iran’s pre-2015 policy of refusing to allow the education of Afghan refugee children.2539 Because these policies were intended to discourage refugee arrivals – and perhaps even indirectly to refoule refugees already present – they failed to meet the stringent criteria for justifiable non-compliance based purely on a genuine resource insufficiency.2540 But despite the clear recognition by the Committee on Economic, Social and Cultural Rights that discrimination in accessing primary education on the grounds of refugee (or “asylum-seeker”) status is impermissible,2541 a

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“General Comment No. 11: Plans of Action for Primary Education” (1999), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [2]. Nor has the Committee clarified its views, noting ambiguously in 2017 “that whereas education has sometimes been described as an economic right, the right of each child to education should be recognized by States independently of the nationality or the legal status of his or her parents”: UN Committee on Economic, Social and Cultural Rights, “Duties of States toward Refugees and Migrants under the International Covenant on Economic, Social and Cultural Rights,” UN Doc. E/ C.12/2017/1, Mar. 13, 2017, at [8]. See Chapter 1.5.4 at note 432 ff. regarding the general import of Art. 2(3) of the Economic Covenant. See text at note 2435. 2539 See text at notes 2433–2434. The truly exceptional nature of a legitimate failure to provide primary education can be seen in the Committee on Economic, Social and Cultural Rights’ approach to Art. 14 of the Covenant, under which states which do not already have universal and free primary education are “required to adopt a plan of action within two years . . . This obligation is a continuing one and States parties to which the provision is relevant by virtue of the prevailing situation are not absolved from the obligation as a result of their past failure to act within the two-year limit. The plan must cover all of the actions which are necessary in order to secure each of the requisite component parts of the right and must be sufficiently detailed so as to ensure the comprehensive realization of the right . . . A State party cannot escape the unequivocal obligation to adopt a plan of action on the grounds that the necessary resources are not available. If the obligation could be avoided in this way, there would be no justification for the unique requirement contained in article 14 which applies, almost by definition, to situations characterized by inadequate financial resources”: UN Committee on Economic, Social and Cultural Rights, “General Comment No. 11: Plans of Action for Primary Education” (1999), UN Doc. HRI/GEN/ 1/Rev.7, May 12, 2004, at [8]–[9]. “The Committee is deeply concerned by the information it has received concerning the treatment of Vietnamese asylum-seekers in Hong Kong. It is particularly concerned about the situation of the children and is alarmed by the statements made by the Government that these children have no entitlement to the enjoyment of the right to education or to other rights in view of their status as ‘illegal immigrants.’ The Committee considers the situation inconsistent with obligations set forth in the Covenant”: “Concluding Observations of the Committee on Economic, Social and Cultural Rights: United Kingdom of Great Britain and Northern Ireland,” UN Doc. E/C.12/1994/19, Dec. 21, 1994. This is in line with the general position of the Committee that non-citizen status is not usually to be understood as a legitimate ground for discrimination. “[T]he State party’s other obligations, such as non-discrimination, are required to be implemented fully and immediately”: UN Committee on Economic, Social and Cultural Rights, “General Comment No. 11: Plans of Action for Primary Education” (1999), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [10]. The content of this duty of non-discrimination

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differentiation between citizens and others found to be “objective and reasonable” would not amount to discrimination2542 – thus opening up in principle the possibility of a resource-based denial to refugee children of the educational opportunities afforded citizens. Under Art. 22 of the Refugee Convention, in contrast, there is no such fungibility: the right of refugees to access elementary education is rather a simple duty of result. While refugees are entitled to no greater access to elementary education than is afforded nationals of the host country, they may not be denied access to education on the grounds that nationals are entitled to be admitted before any refugees are provided for. Unless an express reservation of the kind entered by only eight states – Egypt, Ethiopia, Malawi,2543 Monaco, Mozambique, Timor-Leste, Zambia, and Zimbabwe – is in place, the duty to assimilate refugees to nationals under Art. 22(1) means that the receiving country must share out whatever facilities and resources for elementary education it has on terms of equality between refugees and citizens. Thus, Cambodia’s refusal to provide any education facilities to urban refugee children arguing the need first to meet the needs of citizen children2544 contravened the Refugee Convention. Under the theory of the Refugee Convention, refugee children are not to be made to pay the price for resource insufficiency in the host state. Whatever financial insufficiencies are present are instead to be addressed by burden-sharing among states.2545

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was subsequently elaborated to include access “to all, especially the most vulnerable groups, in law and fact, without discrimination on any of the prohibited grounds . . . The prohibition against discrimination enshrined in article 2(2) of the Covenant . . . encompasses all internationally prohibited grounds of discrimination. The Committee interprets articles 2(2) and 3 in the light of the UNESCO Convention against Discrimination in Education, the relevant provisions of the Convention on the Elimination of All Forms of Discrimination against Women, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Rights of the Child and the ILO Indigenous and Tribal Peoples Convention, 1989 (Convention No. 169)”: UN Committee on Economic, Social and Cultural Rights, “General Comment No. 13: The Right to Education” (1999), UN Doc. HRI/GEN/1/ Rev.7, May 12, 2004, at [6(b)(i)] and [31]. The Committee on Economic, Social and Cultural Rights has moreover traditionally treated nationality as a prohibited ground of discrimination. “Certainly, in so far as the Covenant establishes the rights of ‘everyone,’ non-nationals would have a right to the enjoyment of the minimum content of those rights. Thus, in practice, the Committee will censure situations where aliens enjoy few rights and are the object of exploitation”: Craven, ICESCR Commentary, at 174. See Chapter 1.5.5. Only Malawi’s reservation saved it from being in breach of Art. 22(1) when the number of primary school teachers made available for Mozambican refugees resulted in a 1:100 teacher–student ratio: See text at note 2442. See text at note 2428. See in particular UNHCR Executive Committee Conclusion No. 59, “Refugee Children” (1989), at [(f)], in which the Executive Committee “encouraged UNHCR to strengthen its efforts in assisting host country governments to ensure the access of refugee children to

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In two respects, however, the Economic Covenant does add net value to the duties set by Art. 22(1) of the Refugee Convention. First, it makes clear that primary education must be free for all: The nature of this requirement is unequivocal. The right is expressly formulated so as to ensure the availability of primary education without charge to the child, parents or guardians. Fees imposed by the Government, the local authorities or the school, and other direct costs, constitute disincentives to the enjoyment of the right and may jeopardize its realization. They are also often highly regressive in effect. Their elimination is a matter which must be addressed by the required plan of action. Indirect costs, such as compulsory levies on parents (sometimes portrayed as being voluntary, when in fact they are not), or the obligation to wear a relatively expensive school uniform, can also fall into the same category.2546

Under this understanding, the barrier to accessing primary education posed by the need for refugees (and others) in Kampala to fund tuition, uniforms, and admission fees2547 is at odds with the requirements of Art. 13(2)(a) of the Economic Covenant. Second, the Committee has determined that “the form and substance of education, including curricula and teaching methods, have to be acceptable (e.g. relevant, culturally appropriate and of good quality) to students . . . [E]ducation has to be flexible so it can adapt to the needs of changing societies and communities and respond to the needs of students within their diverse social and cultural settings.”2548 This requirement might be invoked to question the purely academic orientation of classes provided by Kenya to Sudanese refugee children given their urgent need to learn basic survival skills and other practical matters2549

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education, inter alia through the involvement of new organizations and governmental and non-governmental donors, and where necessary through the incorporation of appropriate arrangements in its programmes of assistance”; and Executive Committee Conclusion No. 100 (2004), at [l], calling for “burden and responsibility sharing . . . to improve primary education for refugees, achieve gender parity in education, and secure funding, including through the private sector, to expand secondary, vocational and tertiary education opportunities for refugees, especially adolescents.” The problem, of course, is that developed countries have not always met this ethical responsibility in a complete or timely way. UNHCR assembled advice on how best to meet this challenge in J. Crisp et al. eds., Learning for a Future: Refugee Education in Developing Countries (2001). UN Committee on Economic, Social and Cultural Rights, “General Comment No. 11: Plans of Action for Primary Education” (1999), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [7]. See text at note 2431. UN Committee on Economic, Social and Cultural Rights, “General Comment No. 13: The Right to Education” (1999), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [6(c)–(d)]. See text at note 2449.

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It is, however, more difficult to know the implications of the Committee’s approach for how best to orient the curriculum when the refugee’s ultimate place of residence is unknown. The UN has in some cases implemented a Western curriculum – as in the case of Cambodian refugees in Thailand – in order to prepare refugees for resettlement.2550 UNHCR traditionally advocated teaching oriented to repatriation,2551 a policy favored by the parents of Burundian refugee children in Tanzania.2552 But it arguably makes good sense to immerse refugees in the culture and society of the host country at least where, as in the case of refugees from Darfur in Chad,2553 there seems little likelihood of imminent return. Indeed, recognizing that the majority of refugees are today unable to return home within five years of departure, the UNHCR recently shifted away from its traditional repatriation-oriented view to embrace a presumption in favor of teaching based on the curriculum of the host country: Use of country of asylum curriculum provides access to accredited, supervised and accountable education services. It is generally the most sustainable and protective option in the medium to long term, ensuring safe access to examinations and certification, access to teaching and learning materials, quality assurance and improved access to national education services, including options to continue education at higher levels.2554

This agency policy weighs the pros and cons of reliance on each of the country of origin and country of asylum curriculum,2555 and concludes that education for return is not only inapposite to the needs of most modern refugees but also that the practical challenges of attempting to orient teaching to the standards of a foreign country may significantly compromise the quality of the education offered.2556 Given the impossibility of knowing which solution – repatriation, reestablishment, local integration, or resettlement – will ultimately eventuate, the UNHCR’s recommendation that “the advantages of sustainable, safe access to accredited certification and services associated with national systems outweigh the benefits of using the country of origin curriculum”2557 is compelling. Indeed, as a matter of law, since short-term repatriation is statistically unlikely, 2550 2553 2554 2556

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See text at note 2448. 2551 Avery, “UNHCR Responds.” 2552 See text at note 2447. See text at note 2446. UNHCR, “Curriculum Choices in Refugee Settings,” July 2015, at 2. 2555 Ibid. at 3. See also in this regard UN Human Rights Council, “Right to education in emergency situations,” UN Doc. A/HRC/8/10, May 20, 2008, at [90]–[91]: “The aim of bringing about successful repatriation and reintegration . . . has led to an emphasis in the study plans on all those aspects that recall the country of origin. This approach is not always possible, as the relevant teaching material is often unobtainable or unsuitable . . . Poor use of teaching materials may create problems relating to the accreditation of the teaching received, with refugees . . . being accepted neither by the national education system of their host country nor by that of their country of origin, creating a source of social tension.” UNHCR, “Curriculum Choices in Refugee Settings,” July 2015, at 3.

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a focus on integration is very much adapted “to the changing societies and communities and respon[sive] to the needs of students within their diverse social and cultural settings.”2558 In line with Art. 13(3)–(4) of the Covenant,2559 however, refugee parents should be allowed to establish alternative (repatriation-oriented) primary schools for their children if they wish, so long as minimum qualitative standards are met and the host state is not expected to fund those schools. Given both the impossibility of knowing where refugees will ultimately live and the frequent stress of being required immediately to undertake education in a new language, there is a powerful logic to the provision of at least some education in the refugees’ native language2560 – as is done in parts of Canada and in some European countries, including Denmark and Sweden.2561 Turkey’s decision to authorize some 13,000 Syrian refugee teachers to teach Syrian refugee children in their own language2562 was an especially laudable policy shift, showing flexibility in a way that ensured the ability of children quickly to resume their studies. There is, however, no consensus that governments have a duty to fund minority-language education.2563 While there would 2558

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UN Committee on Economic, Social and Cultural Rights, “General Comment No. 13: The Right to Education” (1999), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [6(c)–(d)]. “The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to choose for their children schools, other than those established by the public authorities, which conform to such minimum educational standards as may be laid down or approved by the State . . . No part of this article shall be construed so as to interfere with the liberty of individuals and bodies to establish and direct educational institutions, subject always to the observance of the principles set forth in paragraph 1 of this article and to the requirement that the education given in such institutions shall conform to such minimum standards as may be laid down by the State”: Economic, Social and Cultural Covenant, at Art. 13(3)–(4). More generally, “States parties should not prevent migrants from maintaining their cultural links with their countries of origin”: UN Committee on Economic, Social and Cultural Rights, “General Comment No. 21: Right of Everyone to Take Part in Cultural Life (Art. 15, para. 1),” UN Doc. E/C.12/GC/21, Dec. 21, 2009, at [34]. “[E]ducation must be culturally appropriate . . . [and] enable children to develop their personality and cultural identity and to learn and understand cultural values and practices of the communities to which they belong, as well as those of other communities and societies . . . States parties should pay particular attention to the protection of the cultural identities of migrants, as well as their language”: UN Committee on Economic, Social and Cultural Rights, “General Comment No. 21: Right of Everyone to Take Part in Cultural Life (Art. 15, para. 1),” UN Doc. E/C.12/GC/21, Dec. 21, 2009, at [26], [34]. See text at note 2458. 2562 See text at note 2459. “[A] State must respect the freedom of individuals to teach, for instance, a minority language in schools established and directed by members of that minority. This does not imply, however, that a State must allow the use of this language as the only medium of instruction; this would be dependent on the educational policy of the State. As a minimum, however, States must not frustrate the right of members of national, ethnic or linguistic minorities to be taught in their mother tongue at institutions outside the official system of public education. However, there is no State obligation to fund these

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arguably be such a duty if repatriation were probable,2564 the very nature of refugee status (in which there is usually no such certainty, given the duty to protect refugees for as long as there is a real chance of being persecuted in the home state) argues against this being a universal position. As such, neither the Irish decision to immerse Vietnamese refugee children in English-only instruction2565 nor Lebanon’s provision of education to Syrian refugees in only French or English2566 can be said to have contravened duties under the Covenant.

4.8.2 Secondary and Other Education While there was ready agreement that refugees should have unconditional access to elementary education, the drafters of the Refugee Convention debated at some length the extent to which refugees ought to be assisted to access public secondary and other non-elementary forms of education. The initial proposal on this issue assumed that refugees were already entitled to enter higher institutions of learning, and thus needed only to be assimilated to the citizens of most-favored states in order to have access to scholarship and other funds to pay their tuition and fees.2567 The drafters were made aware of “the difficulties which might arise in connection with the award of scholarships to refugees. It seemed that most scholarships were administered by a foundation and granted according to special provisions.”2568 Thus, the UN’s strategy coming into the drafting process was predicated on the de jure accessibility of non-elementary education to refugees, and sought simply to overcome the practical impediments to higher education by enfranchising refugees within the ranks of privileged non-citizens. Sadly, most governments took a distinctly less liberal view of the right of refugees’ access to advanced forms of education than they had with respect to elementary education. While the German and Yugoslav delegations proposed

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institutions”: “The Right to Education as a Human Right: An Analysis of Key Aspects: Background Paper submitted by Fons Coomans,” UN Doc. E/C.12/1998/16, Sept. 29, 1998, at [15]. See text at note 2548. 2565 See text at note 2460. 2566 See text at note 2461. “The [non-elementary] grades of education are generally speaking open to foreigners; refugees will therefore receive the benefit of this circumstance if they are placed on the same footing as other foreigners. [But] [s]ince refugees are in a precarious economic position and the Government of their country of origin takes no interest in them, it would be desirable to do more than merely accord them the ordinary rights enjoyed by foreigners; otherwise in practice although secondary and higher education is open to them, they will be unable, for want of money, to take advantage of it. For this reason it is proposed to grant refugees the most favourable treatment accorded to nationals of a foreign country”: Secretary-General, “Memorandum,” at 40. Statement of the Chairman, Mr. Chance of Canada, UN Doc. E/AC.32/SR.15, Jan. 27, 1950, at 9.

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sweeping amendments that would have granted refugees full national treatment in regard to advanced education,2569 the majority of representatives were determined to limit the scope of entitlement. First, as in regard to elementary education, it was made clear that only public forms of post-elementary education are regulated by Art. 22(2)2570 – meaning, for example, that the issue of access by refugees to informal, non-state-based programs in Lebanon2571 or to NGO-operated vocational training in Burma,2572 Morocco,2573 Pakistan,2574 and South Africa2575 is not regulated by Art. 22(2). Second, while it was agreed that the Refugee Convention should specifically regulate “access to studies,”2576 it was acknowledged that post-elementary educational institutions would retain significant autonomy to make merit-based evaluations of a refugee applicant’s qualifications for admission,2577 including the assessment 2569

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Comparable proposals were tabled by Yugoslavia (UN Doc. A/CONF.2/31) and Germany (UN Doc. A/CONF.2/45). “[T]he purpose of his amendment . . . was to grant refugees facilities in higher as well as in elementary education. Such generosity would not only benefit refugees, but also the countries in which they resided. Indeed, there was a kind of moral obligation on public authority to help young people who, through no fault of their own, had been placed in unfavourable conditions. Moreover, although assimilation was difficult for the elderly, everything should be done to make it possible and easy for young people to share fully in the life of the country of their adoption. They should consequently be allowed access to all educational opportunities in their new homeland”: Statement of Mr. von Trutzschler of the Federal Republic of Germany, UN Doc. A/CONF.2/SR.10, July 6, 1951, at 11. “In the United Kingdom, higher education was in the hands of schools and universities, which were for the most part private institutions with their own regulations which could not be overruled by a Convention, particularly where fees were concerned. If it was understood that the provisions of paragraph 2 applied to public education only, his delegation would see no objection to accepting that text”: Statement of Sir Leslie Brass of the United Kingdom, UN Doc. E/AC.32/SR.15, Jan. 27, 1950, at 9. See also the remarks of the representatives of Canada, France, Israel, and Belgium, ibid. at 9–10. The French delegate thus concluded “that there could not be any doubt concerning the interpretation of paragraph 2: it referred solely to public education and State scholarships. Private institutions could obviously not be compelled against their will to admit refugees or to grant them reduced rates”: Statement of Mr. Rain of France, ibid. at 10. At the Conference of Plenipotentiaries, the British representative insisted that “[w]hat the Conference must do was to bind states to give equality of treatment to refugees in the institutions over which the State had control”: Statement of Mr. Hoare of the United Kingdom, UN Doc. A/CONF.2/SR.10, July 6, 1951, at 14. See text at notes 2472–2473. 2572 See text at note 2476. 2573 Ibid. See text at note 2478. 2575 See text at note 2476. The Belgian representative to the Ad Hoc Committee “suggested that the words ‘access to education’ be inserted . . . since access to education was a matter of considerable importance”: Statement of Mr. Herment of Belgium, UN Doc. E/AC.32/SR.38, Aug. 17, 1950, at 9. This was a matter of particular concern to the Belgian representative, who was anxious to safeguard “the distinction [in Belgium] that study abroad qualified the candidate for admission to schools of a certain grade only if such study was recognized by an examining board as being equivalent to Belgian elementary or secondary education”: Statement of

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of foreign credentials on the usual basis.2578 And third, governments were emphatic that the right of access to post-elementary education could not be invoked as an indirect means to insist on admission to a trade or profession for which the education acquired is the usual prerequisite. As the French representative explained, [T]he two questions should not be linked together, since the practice of a profession was dealt with in other articles. A scientific standpoint had to be adopted in the present case, whereas the question of exercising a profession should be decided on a non-scientific basis. The fundamental purpose of article [22(2)] was to prevent the son of a refugee from being forbidden to enter a given faculty. For example, a student who became a refugee after completing two years of medical studies should be allowed to continue those studies.2579

Concluding the discussion on this point, the Chairman of the Ad Hoc Committee observed that it would seem to him an unhappy solution if the State of residence were to refuse a refugee the right to obtain an education only on the ground that he would be unable as an alien to practice his profession. He might wish to get an education merely for his private scientific enjoyment, or he might wish to emigrate to another country and there to practice his profession. It was also possible that a person studying some science was not eligible for citizenship at the time when he was a student, for instance because he was not able to support himself; but he might nevertheless be interested in getting an education and a degree, hoping to be naturalized afterwards, whereupon he would be able to use the degree. So, in any event, the question of education and degrees covered by article [22(2)] should not

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Mr. Herment of Belgium, UN Doc. E/AC.32/SR.37, Aug. 16, 1950, at 25. In response, the French representative opined that “the instances cited by the Belgian representative were of minor importance and an explicit reservation could not in any way reflect badly upon the country making it”: Statement of Mr. Juvigny of France, ibid. at 26. But in the end, it was agreed that so long as the assessment “was one not of nationality but rather of qualifications,” it did not infringe the Convention: Statement of the Chairman, Mr. Larsen of Denmark, ibid. at 25. Statement of Mr. van Heuven Goedhart of UNHCR, UN Doc. A/CONF.2/SR.35, July 25, 1951, at 6. The General Comment on the cognate right in the Economic, Social and Cultural Covenant allows for screening “by reference to all their relevant expertise and experience”: UN Committee on Economic, Social and Cultural Rights, “General Comment No. 13: The Right to Education” (1999), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [19]. Statement of Mr. Juvigny of France, UN Doc. E/AC.32/SR.37, Aug. 16, 1950, at 26. Thus, Grahl-Madsen concludes that “[o]nce a child of a refugee has been given the benefit of Article 22(2), he should continue to [enjoy that right] until he has finished the school to which he has been admitted, and until his diploma etc. has been superseded by another one of higher standing”: Grahl-Madsen, Commentary, at 86.

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be combined with the exercise of liberal professions dealt with in article [19].2580

But by far the most significant decision taken was to reject the duty to assimilate refugees to most-favored foreigners, and instead to grant them post-elementary education rights only to the extent these are enjoyed by “aliens generally.” Because Art. 22(2) regulates “the remission of fees and charges and the award of scholarships,” governments attending the Conference of Plenipotentiaries resurrected concerns which had been overcome in the Ad Hoc Committee2581 that the provision would require the assimilation of refugees to students for whom special arrangements had been made under bilateral funding agreements.2582 For example, the United Kingdom had made special provision to grant scholarships to Polish citizens,2583 while Venezuela had particular scholarship arrangements with the “Bolivar countries, with which it was linked by ties of history and consanguinity.”2584 The general sense was that states should be free to make such special arrangements without fear that they were thereby indirectly assuming significant obligations to fund the education of refugees. On the initiative of the British government,2585 the 2580

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Statement of the Chairman, Mr. Larsen of Denmark, UN Doc. E/AC.32/SR.37, Aug. 16, 1950, at 27–28. See also Statement of Mr. Henkin of the United States, ibid. at 28: “[I]t was better to allow an opportunity for study to a refugee, even if afterwards he could not practise a liberal profession, rather than prevent him from obtaining an education at all.” In response to arguments for redrafting to accommodate states anxious to preserve the right to award special bilateral and other scholarships, the United States’ representative insisted that “he did not think that preferential treatment had been excluded from the most favourable treatment clause and would not like that interpretation adopted. If the Benelux countries, for example, were not prepared to accord their special treatment to refugees, he would prefer it to be stated in the form of a reservation”: Statement of Mr. Henkin of the United States, ibid. at 24. See also Statement of Mr. Weis of the IRO, ibid.; and the Chairman, Mr. Larsen of Denmark, ibid. This led to the adoption of the more generous standard, under which states agreed to “accord to refugees the most favorable treatment accorded to nationals of a foreign country with respect to education other than elementary education and, in particular, as regards access to studies, the remission of fees and charges and the award of scholarships”: “Report of the Ad Hoc Committee on Refugees and Stateless Persons, Second Session,” UN Doc. E/1850, Aug. 25, 1950 (Ad Hoc Committee, “Second Session Report”), at 21. “[I]n France there was a distinction between scholarships awarded under bilateral treaties, and those by which refugees could benefit . . . [A]lthough the French Government was prepared to give refugees all possible assistance in that direction, it would not go beyond the measures already taken”: Statement of Mr. Rochefort of France, UN Doc. A/CONF/2/SR.10, July 6, 1951, at 14. Statement of Sir Leslie Brass of the United Kingdom, UN Doc. E/AC.32/SR.37, Aug. 16, 1950, at 23; repeated in the Statement of Mr. Hoare of the United Kingdom, UN Doc. A/ CONF.2/SR.10, July 6, 1951, at 14. Statement of Mr. Perez Perozo of Venezuela, UN Doc. E/AC.32/SR.37, Aug. 16, 1950, at 23. “In the United Kingdom Government’s view the legal effect of paragraph 2 would be to impose upon it the obligation of treating all refugees as favourably as it had done one particular group. The countries linked by the Brussels Treaty were also endeavouring to

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required standard of treatment was therefore reduced to “treatment as favorable as possible, and, in any event, not less favorable than that accorded to aliens generally in the same circumstances.”2586 Moreover, while there is nothing in the drafting history to suggest an intention by states to apply this lower standard of treatment to the other matters regulated by Art. 22(2) – specifically, access to post-elementary education and the recognition of academic credentials2587 – the text as adopted nonetheless makes clear that on these questions also, the duty of states is simply to treat refugees at least as well as they do aliens in general. Under the Refugee Convention, then, there is no basis to contest Tanzania’s requirement that refugees be admitted to post-elementary education only as part of the overall 2 percent of places assigned to non-citizens,2588 South Africa’s high transcript accreditation fees, applicable to all whose qualifying education was acquired abroad,2589 or the British rule that assimilates refugee claimants to overseas applicants for the purposes of assessing university tuition fees.2590 On

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extend reciprocal arrangements between them to a large number of fields. It might be that schemes for the exchange of students and for scholarships would be developed. There again, such special arrangements would be inapplicable to refugees . . . [H]e could not help but feel that it would be preferable to redraft the text so as to make it generally acceptable rather than to adopt it as it stood and oblige a number of governments to enter reservations”: Statement of Mr. Hoare of the United Kingdom, UN Doc. A/CONF.2/ SR.10, July 6, 1951, at 14–15. Indeed, it was only when reminded by the UNHCR of the way in which this level of attachment had ordinarily been framed elsewhere in the Convention that the reference to “treatment as favourable as possible” was included in Art. 22(2): Statement of Mr. van Heuven Goedhart of UNHCR, UN Doc. A/CONF.2/SR.35, July 25, 1951, at 5. The French representative, for example, had made clear that “[t]he reservations made by his delegation concerned the award of scholarships to aliens, and in that connection it should be noted that in France all aliens had access to all educational establishments, except for certain large schools which prepared candidates for posts from which aliens were excluded . . . although they might, in certain conditions, be admitted with alien status”: Statement of Mr. Rochefort of France, UN Doc. A/CONF.2/SR.10, July 6, 1951, at 17. See text at note 2467. It has been argued that “[g]iven that by virtue of Art. 22, para. 2 refugees have to be granted treatment as favourable as possible, no quota [may] be applied with regard to refugees where otherwise the capacity of universities would not be fully used, i.e. quotas [may] not be applied vis-à-vis refugees with the sole aim of limiting the number of foreigners at a given university or faculty [emphasis added]”: Zimmermann and Dörschner, “Article 22,” at 1039. If the quotas target refugees, this is quite correct. If aimed at non-citizens in general, however, Art. 22(2) would be unlikely to provide any relief to refugees simply caught by the broader net; at most, states would need specifically to consider their exemption in good faith from the general quota. A quota system aimed at non-citizens in general would, however, have to pass muster under Arts. 13(2)(c) of the Economic Covenant and 26 of the Civil and Political Covenant. See text at note 2469. See text at note 2487. The view that the provisions of Art. 22(2) on remission of fees and charges are trumped by Art. 29’s general duty to treat refugees on par with nationals in

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the other hand, Jordan’s inflexible insistence on original documentation for enrollment by Syrian refugees in secondary schools2591 may well breach Art. 22(2) since the “treatment . . . not less favorable than that accorded to aliens generally in the same circumstances [emphasis added]” standard requires that refugees be exempted from general requirements which by virtue of their refugeehood they are not able to fulfill2592 – a real prospect given the inability to secure original documents in the context of urgent flight and inability to access home country services from abroad. Australia’s policy of denying tuition or fee support2593 to recognized refugees granted a “temporary protection” visa, but not to other refugees (or to resident non-citizens in general),2594 is an even clearer example of breach given the duty to grant all persons who are in fact Convention refugees at least the same access to education (other than elementary education) as is enjoyed by aliens generally. And Iran’s policy of requiring Afghan refugees to renounce their refugee status in order to access university2595 is an especially egregious contravention of Art. 22(2), though the ban on refugees studying some thirty subjects if admitted2596 – because that ban applies to all non-citizens – is not at odds with Convention requirements. Because of the various limitations inherent in Art. 22 of the Refugee Convention,2597 refugees seeking to benefit from other than elementary education will in many cases do well to invoke Art. 13(2) of the Economic Covenant.2598 Under clauses (b) and (c), “secondary” and “higher” education

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relation to fiscal charges (see Zimmermann and Dörschner, “Article 22,” at 1040) may be questioned in light of the much more specific nature of Art. 22(2). See text at note 2468. 2592 Refugee Convention, at Art. 6. See Chapter 3.2.3. “The broad term ‘scholarships’ [in Art. 22(2)] includes generalised State sponsored financial aid programmes for students. This is confirmed by the equally authentic French term ‘bourses d’études’ which is generally understood to encompass such programmes. Thus, where such financial aid is generally granted to aliens in the same circumstances, refugees are also entitled to have access to them”: Zimmermann and Dörschner, “Article 22,” at 1041. See text at notes 2488–2489. 2595 See text at note 2470. 2596 Ibid. The weakness of the Refugee Convention on this point is clear from the framing of UNHCR Executive Committee Conclusion No. 37, “Central American Refugees and the Cartagena Declaration” (1985), at [(p)], in which the Executive Committee “[r]ecognized the need of refugee children to pursue further levels of education and recommended that the High Commissioner consider the provision of post-primary education within the general Program of assistance [emphasis added].” “All people under the jurisdiction of the State concerned should enjoy Covenant rights. That includes asylum seekers and refugees”: UN Committee on Economic, Social and Cultural Rights, “Duties of states toward refugees and migrants under the International Covenant on Economic, Social and Cultural Rights,” UN Doc. E/C.12/2017/1, Mar. 13, 2017, at [3]; see also UN Committee on Economic, Social and Cultural Rights, “General Comment No. 20: Non-discrimination in Economic, Social and Cultural Rights (Art. 2, para. 2),” UN Doc. E/C.12/GC/20, July 2, 2009, at [3], [30] (“The preamble stresses the ‘equal and inalienable rights of all’ and the Covenant expressly recognizes the right of ‘everyone’ to the various Covenant rights such as . . . the right to . . . education . . . The

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must be made “generally available and accessible to all [emphasis added]” – meaning, for example, that the European Union’s decision to grant adult refugees educational opportunities only to the same extent provided to “third country nationals legally resident”2599 is of doubtful legality. Less developed countries enjoy more leeway in this regard since they may rely on the Economic Covenant’s general duty of non-discriminatory2600 progressive implementation to justify their failure fully to enfranchise refugees and other non-citizens2601 – thus arguably legitimating Kenya’s decision when faced with a decline in international funding to charge refugees at Kakuma Camp a fee of $10 per month to attend secondary school.2602 More generally, because education at these levels (in contrast to elementary education) need not be immediately free of charge,2603 an equitable system of cost-recovery from non-citizens who have yet to contribute to the public funding base for advanced education might be found to be justifiable.2604 In addition to its main value for refugees as setting the general rule that postelementary education must be made “generally available and accessible to all,” the formulation of post-elementary education rights in the Economic Covenant is helpful to refugees in three other ways. First, it makes clear that technical and vocational education is within the scope of guaranteed “secondary education”2605 – thus calling into question the logic of the European

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Covenant rights apply to everyone including non-nationals, such as refugees [and] asylum-seekers”). See text at note 2479. “[E]ducational institutions and programmes have to be accessible to everyone, without discrimination, within the jurisdiction of the State party”: UN Committee on Economic, Social and Cultural Rights, “General Comment No. 13: The Right to Education” (1999), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [6(b)]. On the duty of progressive implementation, see generally Chapter 1.5.4. Note, however, that “[t]he realization of the right to education over time, that is ‘progressively,’ should not be interpreted as depriving States parties’ obligations of all meaningful content. Progressive realization means that States parties have a specific and continuing obligation ‘to move as expeditiously and effectively as possible’ towards the full realization of article 13”: UN Committee on Economic, Social and Cultural Rights, “General Comment No. 13: The Right to Education” (1999), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [44]. See text at note 2466. In regard to secondary and higher education, the relevant obligation is simply to increase accessibility “by the progressive introduction of free education [emphasis added].” While this duty does not allow for inaction, neither does it set an immediate obligation of result. See Chapter 1.5.5 at note 468 ff. If, however, tuition or similar educational fees are deductible expenses or otherwise wholly or partially rebated to citizens of the asylum state, refugees must receive the same benefit by virtue of Art. 29 of the Refugee Convention: see Chapter 4.5.2. “Technical and vocational education (TVE) forms part of both the right to education and the right to work (art. 6(2)). Article 13(2)(b) presents TVE as part of secondary education, reflecting the particular importance of TVE at this level of education”: UN Committee on

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Union’s decision to grant states complete discretion about whether or not to give refugees awaiting status verification access to vocational training.2606 Second, whereas the Refugee Convention authorizes merit-based assessments to govern access to all post-elementary education, Art. 13(2)(b) of the Covenant requires that access to secondary education – as distinguished from higher (e.g. college and university) education2607 – be subject to no such evaluations. The Committee on Economic, Social and Cultural Rights has made clear that “[t]he phrase ‘generally available’ signifies . . . that secondary education is not dependent on a student’s apparent capacity or ability.”2608 And third, it is particularly interesting that Art. 13(2)(e) goes some distance to meeting the original concern of the drafters of the Refugee Convention, namely that legal access to education would be meaningless to most refugees if not provided with the financial wherewithal to pay their tuition and other fees.2609 Under the Economic Covenant, governments commit themselves (“shall”) to establish “an adequate fellowship system” applicable at all levels of education – primary, secondary, higher, and fundamental. Of critical importance to refugees, “[t]he requirement that ‘an adequate fellowship system shall be established’ should be read together with the Covenant’s non-discrimination and equality provisions, meaning that the fellowship system should enhance equality of educational access for individuals from disadvantaged groups.”2610 As such, to the extent that refugees are forced to rely on an inferior scholarship system in order to access any level of education, they may invoke Art. 13(2)(e) to contest their exclusion.2611 Because whatever education a state chooses to offer or subsidize – including, for example, vocational training – must be offered in a way that complies with the duty of non-discrimination, it is not open to a state to

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Economic, Social and Cultural Rights, “General Comment No. 13: The Right to Education” (1999), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [15]. Such education is not clearly excluded from the requirements of the Refugee Convention, though it is not explicitly referenced there. In Grahl-Madsen’s view, “[t]he phrase [‘education other than elementary education’ in the Refugee Convention] comprises general higher education as well as vocational training”: Grahl-Madsen, Commentary, at 87. See text at note 2481. Access to higher education is governed by Art. 13(2)(c), which does allow restrictions to access “on the basis of capacity.” UN Committee on Economic, Social and Cultural Rights, “General Comment No. 13: The Right to Education” (1999), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [13]. See text at note 2567 ff. UN Committee on Economic, Social and Cultural Rights, “General Comment No. 13: The Right to Education” (1999), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [26]. Thus, for example, the Committee on Economic, Social and Cultural Rights critiqued the Canadian practice of excluding refugees not yet in receipt of permanent resident status from eligibility for post-secondary education loan programs: “Concluding Observations: Canada,” UN Doc. E/C.12/1/Add.31 (1998), at [37], [39], [49].

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deny such a benefit unless it complies with the usual “objective and reasonable” differentiation standard.2612

4.9 Documentation of Identity and Status Whatever rights are held by refugees may be of little value if their refugee status cannot be proved. Documentary proof of a refugee’s lawful presence in a state party is often critical to ensuring even such basic interests as freedom from detention and refoulement: For a refugee, the lack of identity documents may be far more than a source of inconvenience. In almost all countries an alien must be able to prove not only his identity, but also that his presence in the country is lawful. In some countries aliens without appropriate documentation are subject to detention and sometimes even to summary expulsion. Such measures are particularly serious for a refugee, for whom they could involve the risk of being returned to his country of origin. Even where the consequences of being without documentation are less drastic, the refugee, in order to benefit from treatment in accordance with internationally accepted standards, needs to be able to establish vis-à-vis government officials not only his identity, but also his refugee character. Due to circumstances in which they are sometimes forced to leave their home country, refugees are perhaps more likely than other aliens to find themselves without identity documents. Moreover, while other aliens can turn to the authorities of their country of origin for help in obtaining documents, refugees do not have this option.2613

Recognizing this concern, Rwanda is an example of a state that has worked with UNHCR to issue identity documents to refugees in both camps and cities as a means of enhancing their access to employment, financial institutions, and other services that were previously restricted.2614 While most refugees do have access to state-issued documentation that confirms both their personal identity and legal status,2615 there are three major types of exception. First, some host states refuse to issue identity documents to disfavored groups of refugees. Thailand, for example, does not issue “asylum seeker certificates” to Burmese, Lao Hmong, and North Korean refugees who are treated simply as “displaced persons” entitled to no documentation of their refugee status.2616 Yemen’s provision of identity documents to Somali but not 2612 2613

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See Chapter 1.5.5. UNHCR, “Identity Documents for Refugees,” UN Doc. EC/SCP/33, July 20, 1984 (UNHCR, “Identity Documents”), at [2]–[3]. Relief Web, “Joint Verification Exercise of Refugees and Asylum Seekers Residing in Rwanda Launched,” Feb. 12, 2018. UNHCR, “Identity Documents,” at [12]. Human Rights Watch, “Ad Hoc and Inadequate: Thailand’s Treatment of Refugees and Asylum Seekers,” Sept. 2012, at 87.

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Ethiopian refugees has prevented the latter population from traveling freely without risking extortion and arbitrary arrest at the hands of security forces.2617 Nepal similarly refuses to provide identity documents to Tibetan refugees, with the result that the majority of the Tibetan refugee population remains “at risk of financial penalties . . . for irregular entry or presence in the State party, detention, deportation, and refoulement.”2618 More generally, authorities in some states fail to provide identity documentation until and unless an asylum-seeker’s refugee status has been formally verified.2619 Second and more commonly, asylum states may set administrative requirements that in substance make it difficult if not impossible for refugees to obtain documentation of their identity and status. The system that prevailed in Pakistan until 1992 required Afghan refugees who wished to procure an identity document (“Shanakti pass”) to provide a recommendation from one of seven registered Afghan political parties – resulting in the denial of documentation to many non-partisan Afghan refugees in Pakistan.2620 While Pakistan has more recently issued Proof of Registration cards to refugees registered with the UNHCR, the continuous cycle of expiration and shortterm extensions of the documents has generated uncertainty and attracted accusations of forced rather than voluntary repatriation.2621 Mali has failed to 2617

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Although many non-Somalis did receive UNHCR-issued documents certifying their status as refugees, such documents have been described as protecting against refoulement but “good for little else. The lack of any valid government-issued identification documents severely limits non-Somali refugees’ ability to assert basic entitlements as recognized refugees in Yemen. As one Ethiopian refugee in Sana’a told Human Rights Watch, ‘The UNHCR ID has no value. The police look at it and say, ‘What is this? It is just paper,’ and throw it away. We can do nothing with it. Anything you need an ID card for, they do not accept it’”: Human Rights Watch, “Hostile Shores: Abuse and Refoulement of Asylum Seekers and Refugees in Yemen,” Dec. 2009, at 41–42. UN Human Rights Committee, Concluding Observations on the Second Periodic Report of Nepal, UN Doc. CCPR/C/NPL/CO/2, Apr. 15, 2014, at [14]. UNHCR, “Information Note on Implementation of the 1951 Convention and the 1967 Protocol relating to the Status of Refugees,” UN Doc. EC/SCP/66, July 22, 1991, at [38]. Letter from Mr. Ray Fell of UNHCR Islamabad to Ms. Nausheen Ahmad of Shirkat Gah, Aug. 18, 1994, cited in N. Ahmad, International Academy of Comparative Law National Report for Pakistan (1994). Following the most recent expiration (and repatriation deadline) on December 31, 2017, the government granted a last-minute thirty-day extension of the validity of Proof of Registration (PoR) cards. A sixty-day extension followed this expiration, and then, two further extensions through June and September 2018. The UNHCR assists in repatriating Afghan refugees pursuant to a trilateral agreement between the agency, Pakistan, and Afghanistan; those who agree to return are provided US$200: A. Gul, “Pakistan Extends Afghan Refugees’ Stay for a Month,” Voice of America, Jan. 3, 2018; S. Shalmani, “Uncertainty Grips Afghan Refugees in Pakistan as Repatriation Deadline Nears,” Arab News, Jan. 18, 2018; A. Shahzad, “Pakistan Extends Afghan Refugees’ Stay for only 60 Days,” Reuters, Feb. 1, 2018; “Pakistan Grants ‘Interim’ Extension of Three Months to 1.4 million Afghan Refugees,” Tehran Times, July 3, 2018.

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register untold numbers of Mauritanian refugees born in Mali by insisting on the speedy registration of births – a requirement that is often difficult for refugees living in remote communities to meet.2622 In Lebanon, Syrian refugees registered with UNHCR must pay a $200 annual renewal fee to maintain their documentation that enables them to avoid arrest and deportation, as well as to access critical rights, including healthcare. Refugees who cannot afford the registration fee2623 may remain in the country only if able to find a Lebanese sponsor,2624 a situation that exposes them to sexual and other forms of exploitation at the hands of their employers.2625 And while South African law provides for the issuance of a formal “asylum-seeker permit” to all refugees arriving in its territory, the closure of half of its Refugee Reception Centres has put those unable to travel to the remaining facilities at risk of detention, deportation, and refoulement.2626 2622

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This is despite the fact that the parents of those affected have been recognized as refugees: “‘When a child is born [in Mali], the birth needs to be declared within one month . . . After one month, it becomes complicated and has to go through the courts,’ . . . But because these children were born to refugee parents, many of whom live in remote communities, they never went through this legal process”: K. Höije, “Stateless in the Sahel,” IRIN News, June 18, 2015. The failure to issue proper identity documents not only renders affected refugees unable to receive state services such as healthcare and other social protection services, but also impacts on access to education and even the right to marry: ibid. Only 22 percent of Syrian refugees in Lebanon over age fifteen are formally registered: UNICEF, UNHCR, and WFP, “Vulnerability Assessment of Syrian Refugees in Lebanon” (2019), at 32. Human Rights Watch, “Lebanon: Residency Rules put Syrians at Risk,” Jan. 12, 2016. H. Haid, “Lack of Legal Status is a Nightmare for Syrians in Lebanon,” Middle East Eye, Feb. 27, 2018. See also Norwegian Refugee Council, “Syrian Refugees’ Right to Legal Identity: Implications for Return,” Jan. 2017. “As at the beginning of 2011 there were six [Refugee Reception Centres] in the country, namely Johannesburg, Pretoria, Cape Town, Durban, Musina and Port Elizabeth. Since then three of those six – Johannesburg, Port Elizabeth and Cape Town – have been closed either completely or to new applications by the Department of Home Affairs (DHA)”: Minister of Home Affairs v. Somali Association of South Africa Eastern Cape, Dec. No. 831/2013 (SA SCA, Mar. 25, 2015), at [5]. As a result, persons seeking to renew their permits (which expire every three to six months) must travel hundreds (or at times, thousands) of kilometers to one of the three remaining centers. Moreover, due to an endemic lack of resources and the resulting backlogs in processing times, the time required to process a claim to refugee status may take five years or longer: L. Hamilton, “How Home Affairs has been Ignoring 2 Court Orders, Putting Asylum Seekers at Risk,” News24, Apr. 4, 2018. Officials have moreover at times declined to extend permits for those seeking judicial review of the rejection of their claims. The officials in question took the view that after the exhaustion of internal, departmental remedies and pending an exhaustion of judicial review, a Refugee Reception Officer had no power to extend a temporary permit: Cishahayo Saidi v. Minister of Home Affairs, [2018] ZACC 9 (SA CC, Apr. 24, 2018), at [4]. The Constitutional Court ordered that this discretion be exercised in order to protect refugees: ibid.

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A third concern is that even where some form of documentation is provided to refugee claimants, it may not be generally recognized within the community. In Norway, for example, even though the Schengen uniform-format residence cards issued to refugee claimants are “proof of lawful residence,”2627 they do not facilitate access to a driver’s license or bank cards; nor do they enable recipients to “purchase real property, raise bank loans [or] have jobs requiring a certificate of good conduct.”2628 The documentation issued by Ecuador to refugee claimants lacks the usual National Civil Registry identification number, and is thus often rejected by potential employers.2629 Similarly, Jamaica’s failure to issue identification documents except for the Convention Travel Document, which is “not well known” to the population, has been credited with creating obstacles to being able to seek work.2630 In Kenya, not even government officials have always respected refugee identification cards. During a police campaign of mass arrests of refugees and foreigners in 2014, security forces “confiscated both expired and valid UN refugee documents, and in some cases have torn them up.”2631 Forced to pay exorbitant sums for release following the destruction of their documents, many urban refugees were compelled to return to the remote camps to avoid subjection to further bribes.2632 Thai “asylum seeker certificates” are similarly “of limited value, providing no employment authorization and carrying no legal weight when police stop certificate holders on the street or in their home.”2633 Perhaps ironically, problems of rights abuse may also be facilitated by the issuance of documentation of identity and status to refugees. Of particular concern, Bangladesh has partnered with UNHCR to implement a digital system to issue refugee identity cards to Rohingya refugees. But the system has raised concerns that the collection of biometric and other data may facilitate discrimination against the refugees, including insistence on unlawful detention and the denial of basic services2634 – and perhaps even their unlawful 2627

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Immigration Appeals Board v. A, B, and C, Case No. 2017/260, HR-2017-2078-A (Nor. SC, Oct. 31, 2017), at [48]. Such privileges are afforded only upon issuance of a Convention travel document pursuant to Art. 28: ibid. at [45]. R. Zetter and H. Ruaudel, “Refugees’ Right to Work and Access to Labor Markets: An Assessment: Part II: Country Cases (Preliminary),” Sept. 2016, at 25. Committee on Economic, Social and Cultural Rights, Concluding Observations on the Combined Third and Fourth Periodic Reports of Jamaica, adopted by the Committee at its fiftieth session (29 April–17 May 2013), UN Doc. E/C.12/JAM/CO/3-4, June 10, 2013, at [10]; UN Human Rights Committee, Concluding Observations of the Human Rights Committee, 103rd session, UN Doc. CCPR/C/JAM/CO/13, Nov. 17, 2011, at [12]. Human Rights Watch, “Kenya: End Abusive Round-Ups,” May 12, 2014. 2632 Ibid. Human Rights Watch, “Ad Hoc and Inadequate: Thailand’s Treatment of Refugees and Asylum Seekers,” Sept. 2012, at 87. “[The collection of biometric data for online use] can digitally enable discrimination. Rohingya have to follow a ‘code of conduct’ that forces them to stay inside the camps and limits their interaction with locals. If the database of Rohingya people were to be leaked,

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expulsion. Indeed, the Bangladeshi Minister of Industry has openly proclaimed that his country “has no plan to give any refugee status to Rohingya,” and that “the reason behind the biometric process is to keep record of Rohingya. We want them to go back to their own place.”2635 Refugee Convention, Art. 27 Identity Papers The Contracting States shall issue identity papers to any refugee in their territory who does not possess a valid travel document. Under the early generations of refugee treaties, refugees were issued a single identity document – originally known as a “Nansen passport” in honor of the first High Commissioner for Refugees, later simply as a “travel document” – which served both to facilitate international travel by refugees, and also to identify its holder as a refugee authorized to reside in the asylum country.2636 For reasons elaborated below,2637 the drafters of the 1951 Refugee Convention elected to provide themselves with some discretion to refuse to issue refugees with international travel documents on national security or public order grounds, as well as to standardize the format of those documents. A separate draft article was therefore proposed to stipulate the duty to provide refugees with a more general form of identification, essentially for use within the asylum country.2638 The working drafts of what became Art. 27 assumed that the general identity document would, as under the earlier treaties, only be issued to “refugees authorized to reside” in the state party, in consequence of which the duty under Art. 27 would ordinarily be met by issuance of a residence card to the refugee.2639 This proposal did not survive the scrutiny of the Ad Hoc

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hacked, or shared (for example, with the Myanmar government), it could make it easier to deny Rohingya access to basic services, or target them, or discriminate against them. For example, Bangladeshi mobile phone operators have been banned from selling SIM cards to Rohingya refugees. Biometric data could in theory be shared with mobile phone operators to enforce the ban. Thirdly, errors and omissions can be harder to resolve. Unlike passwords, fingerprints can’t be changed. Once collected, it may be virtually impossible to get rid of them or correct them. Biometric devices are not 100 percent accurate – and it’s unclear what action could be taken if mistakes are made”: Z. Rahman, “Irresponsible Data? The Risks of Registering the Rohingya,” IRIN News, Oct. 23, 2017. Ibid., quoting Minister of Industry Amir Hossain Amu. UNHCR, “Identity Documents,” at [4]. 2637 See Chapter 6.6. “The ‘identity papers’ with which Art. 27 deals are for internal use, as contrasted with ‘travel documents’ to be used for journeys abroad. It is a paper certifying the identity of a refugee”: Robinson, History, at 133. “The High Contracting Parties undertake to issue identity papers (residence card, identity card, etc.) to refugees (and stateless persons) authorized to reside in their territory”: Secretary-General, “Memorandum,” at 41. The commentary noted that “[i]t is the practice to issue identity papers, under various designations, which serve both as identity cards and residence permits. This practice, which meets an essential requirement, should

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Committee, however, which insisted that not all refugees would necessarily be granted a right of residence in the state party2640 (and indeed, no binding duty to grant permanent residence was made part of the Convention).2641 Yet, as the French representative observed, there was nonetheless a need to document the status of persons whose presence was merely tolerated on a temporary basis following an illegal crossing of the frontier. The latter only enjoyed the right of asylum until such time as their position had been regularized by the issuance of a temporary and later of a permanent residence permit. While . . . such permits would in practice serve them primarily as identity cards, there was a secondary aspect of the problem, since a variety of documents could serve as proof of identity. The residence permit was thus only secondarily an identity card; it primarily constituted permission to reside in the reception country [emphasis added].2642

As this makes clear, the purpose of what became Art. 27 was not to document identity in some abstract sense,2643 but rather to document – albeit on a provisional basis – the refugee status of the person concerned.2644 Indeed,

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be generalized”: ibid. The relevant provision in the French working draft for the Convention (draft Art. 16) was identical: France, “Draft Convention,” at 7. “Mr. Rain [of France] urged that the Committee could not decide on a text for the question of residence permits until a satisfactory formula on the right of residence had been adopted”: Statement of Mr. Rain of France, UN Doc. E/AC.32/SR.15, Jan. 27, 1950, at 13. See also Statement of Mr. Henkin of the United States, ibid. at 14, who went so far as to propose “that in order to avoid any misinterpretation the first part of the article should be drafted to read: ‘Without prejudice to the right of the High Contracting Parties to regulate the right of entry for permanent residence in the country.’” The same view prevailed at the Conference of Plenipotentiaries, where the Dutch representative insisted that the official record confirm that “[t]he High Commissioner had made it clear that the duty imposed on States by article [27] in no way impaired their right to control the admission and sojourn of refugees”: Statement of Baron van Boetzelaer of the Netherlands, UN Doc. A/CONF.2/SR.11, July 9, 1951, at 17. See Chapter 7.4. Statement of Mr. Rain of France, UN Doc. E/AC.32/SR.15, Jan. 27, 1950, at 13. The Canadian representative, for example, initially expressed some discomfort at Art. 27’s duty to issue a certificate “guaranteeing re-admission to its territory”: Statement of Mr. Winter of Canada, UN Doc. E/AC.32/SR.38, Aug. 17, 1950, at 23. Canada agreed at the Conference of Plenipotentiaries that it would meet its Art. 27 obligations by issuance of an “immigrant’s record of landing,” reflecting the then-prevailing practice of assimilating refugees immediately upon arrival: Statement of Mr. Chance of Canada, UN Doc. A/CONF.2/SR.11, July 9, 1951, at 17. But see J. Vedsted-Hansen, “Article 27,” in A. Zimmermann ed., The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary 1165 (2011) (Vedsted-Hansen, “Article 27”), at 1176: “Protection will be . . . better safeguarded if the identity document includes information about the holder’s refugee status; however, Art. 27 does not require the inclusion of status information in the identity papers issued to refugees.”

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the revised formula which emerged from a Working Group of the Committee seems explicitly to have been based on the French delegate’s approach: The Contracting States shall issue identity papers to any refugee in their territory who does not possess a valid passport issued pursuant to Article [28, i.e. a Convention Travel Document].2645

This formula, which was adopted by the Ad Hoc Committee without comment,2646 is noteworthy in two respects. First, in contrast both to the working drafts and to all prior refugee treaties, the identity document in question is not to be withheld until a refugee is “lawfully staying” in the asylum country. The drafting history leaves no room for doubt that this formulation was intended to enfranchise asylum-seekers immediately upon their arrival.2647 Indeed, at the Second Session of the Ad Hoc Committee, the Belgian representative questioned the intent behind the amendment of Art. 27 to require the issuance of an identity certificate to “any refugee in their territory.” He inquired whether the authors of the draft Convention would have any objection to the insertion of the word “lawfully” before the words “in their territory.” He failed to see how any contracting party could agree to issue identity papers to refugees who were unlawfully in its territory or who were there on an essentially temporary basis. He assumed that the text referred to refugees who had been granted permission to reside in a country.2648

The response was swift and unequivocal. The American representative observed that “the Committee had agreed to extend the provisions of article 2645

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“Decisions of the Working Group Taken on 9 February 1950,” UN Doc. E/AC.32/L.32, Feb. 9, 1950, at 10. UN Doc. E/AC.32/SR.23, Feb. 10, 1950, at 8. See Robinson, History, at 134: “Contrary to other articles, Art. 27 deals with ‘any refugee in their territory,’ thus indicating verbally that neither residence nor even lawful presence is required. All that is necessary is that the refugee be physically in the territory of the given state”; Weis, Travaux, at 213: “The provision applies to all refugees physically present in the territory, whether legally or illegally there”; and Grahl-Madsen, Commentary, at 115: “The identity papers envisaged in Article 27 shall not only be available to refugees lawfully in the territory, but also to those whose entry was illegal or whose position has not been regularized, however temporary their stay”; VedstedHansen, “Article 27,” at 1172: “States are required to issue identity papers under [Art. 27] to every refugee who is physically present in their territory, regardless of the formal basis or the temporary nature of the refugee’s presence . . . Thus, refugees are entitled to have an identity document issued under Art. 27, whether their presence in the territory is legal or illegal, and whether or not they have regularized their position with respect to the authorities of that country.” Yet despite this clear and correct position, VedstedHansen suggests that the duty to provide documents to “asylum applicants” is “more complex”: ibid. – a view that is difficult to reconcile to both his and the general view that only physical presence is required, and that legality/illegality of presence is not relevant. Statement of Mr. Herment of Belgium, UN Doc. E/AC.32.SR.38, Aug. 17, 1950, at 23.

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[27] to all refugees, so that a refugee illegally present in any country, though still subject to expulsion, would be free from the extra hardships of a person in possession of no papers at all.”2649 Mr. Weis of the IRO insisted that “the intention of the Committee had been that every refugee should be provided with some sort of document certifying his identity, without prejudice to the right of the Government of any country in which he might be illegally present to expel him.”2650 And most forcefully of all, the French representative thought that was undoubtedly what the members of the Committee had in mind. When an alien whose position was irregular entered a country and the authorities of that country decided not to expel him immediately, he would be given a provisional document which he could produce if, say, he were stopped in the street; such a document would be purely provisional and its owner’s stated identity might even prove to be false, but he would not be entirely an outcast and he would hold a provisional document enabling him to be identified.2651

The Belgian delegate accepted these explanations.2652 The scope of the beneficiary class for Art. 27 was only once more alluded to during the drafting debates, resulting in a confirmation that the duty to issue identity papers “could not be refused to anyone, whatever his status or the legality of his presence in a given territory . . . [T]he identity papers . . . were not a legal document, but merely a temporary certificate of identity, in no way prejudging the future position of a refugee, or even his actual status as a refugee.”2653 It is thus not permissible for states to withhold issuance of the certificate of identity until refugee status assessment is completed.2654 A state party must rather provide a refugee claimant without delay identification that attests to her lawful, if still provisional, status in the country. Art. 27’s goal of ensuring that all refugees2655 arriving in a state party receive provisional proof of their refugee status is affirmed by the second important change adopted by the Ad Hoc Committee. Rather than positing a general duty to issue identity documents, the text as adopted by the Committee required states to provide such papers only to refugees not in possession of a Convention Travel Document (CTD) (“to any refugee in their territory who 2649 2650 2651 2652 2653 2654 2655

Statement of Mr. Henkin of the United States, ibid. at 24. Statement of Mr. Weis of the IRO, ibid. at 24. Statement of Mr. Juvigny of France, ibid. at 24. Statement of Mr. Herment of Belgium, ibid. at 24. Statement of Mr. Juvigny of France, UN Doc. E/AC.32/SR.42, Aug. 24, 1950, at 23. See text at note 2619. “[E]very refugee was intended to benefit from this provision”: UNHCR, “Amicus curiae of the United Nations High Commissioner for Refugees (UNHCR) on the interpretation and application of Article 25, Article 27 and Article 28 of the 1951 Convention relating to the Status of Refugees,” Dec. 22, 2016, at [27].

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does not possess a valid passport issued pursuant to Article [28]”).2656 A CTD, issued under Art. 28, need only be issued to refugees “lawfully staying in their territory,”2657 meaning in most cases refugees whose status has been verified and who have been granted the right to remain in the asylum country.2658 Once in possession of the more authoritative CTD, the need for provisional documentation of refugee status would logically disappear – the holder of the CTD could use the document for travel, but it is also more than sufficient to substantiate the individual’s status as a refugee for all domestic purposes, in line with pre-Second World War practice.2659 Jamaica’s decision to rely on CTDs as the sole official form of refugee identification2660 is thus lawful only if it exercises its discretion under Art. 28(1) of the Convention2661 to provide a CTD also to refugees not yet lawfully staying in its territory. At the Conference of Plenipotentiaries, however, a drafting change was made that, if construed literally and out of context, has the potential to obscure the true purpose of Art. 27. On the motion of the delegate from France, the phrase “issued pursuant to article 28” was deleted as “superfluous in view of paragraph 2 of article 28.”2662 The latter paragraph requires that travel documents issued to refugees under earlier refugee treaties “be recognized and treated by the Contracting States in the same way as if they had been issued pursuant to this article.”2663 The evident concern of the French representative was to avoid the need to provide identity documents to the large number of refugees who already held a travel document certifying their refugee status, albeit not one issued under the 1951 Refugee Convention. But the text as adopted has been considered by some commentators to have much more drastic consequences. Specifically, because Art. 27 now requires identity documents to be issued only to refugees “who do not possess a valid travel document,” it is sometimes argued that the only duty is to provide 2656

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UN Doc. E/AC.32/SR.23, Feb. 10, 1950, at 8. But “[i]f the Contracting State declines to issue CTDs referring to the exceptions in Article 28, the state nonetheless remains obliged to issue identity papers in accordance with Article 27”: UNHCR, “Amicus curiae of the United Nations High Commissioner for Refugees (UNHCR) on the interpretation and application of Article 25, Article 27 and Article 28 of the 1951 Convention relating to the Status of Refugees,” Dec. 22, 2016, at [55]. See generally Chapter 6.6. 2658 See Chapter 3.1.4 at note 202. See text at note 2636. There is, however, one circumstance in which this analysis may not hold. Because a state has the discretion (but not the duty) to provide even persons whose refugee status has not been formally verified with a CTD (see Chapter 6.6), some persons in possession of a CTD may not, in fact, be recognized by the granting state as Convention refugees. In practical terms, however, it is unlikely that a state would both grant an individual a refugee travel document and simultaneously treat him or her as a non-refugee. See text at note 2630. 2661 See Chapter 6.6 at note 1024 ff. Statement of Mr. Rochefort of France, UN Doc. A/CONF.2/SR.35, July 25, 1951, at 9. Refugee Convention, at Art. 28(2).

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documentation of identity, not of identity as a refugee.2664 Thus, it is said that a refugee who still possesses the passport of his or her country of origin, or who holds a visa from a third state, need not be provided with identity documentation under Art. 27.2665 Yet it is manifestly clear that documents of this kind – in contrast to either the CTD or equivalent refugee travel documents issued under earlier treaties intended by the drafters to limit the Art. 27 duty – in no way serve the purpose of Art. 27, namely to establish the refugee’s provisional entitlement to be treated as a refugee. As the UNHCR has insisted, “[t]he purpose of Article 27 . . . is to safeguard the interests of refugees and . . . [to] document the refugee status of the person concerned.”2666 Yet the linguistic confusion is such that it has at times been suggested even by UNHCR itself that “[i]dentity papers which show only the name, the date and place of birth, and the current address of the refugee would satisfy the literal requirements of Article 27.”2667 The agency clearly understands that documents of this kind have little if any value as a tool of international

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See Grahl-Madsen, Commentary, at 113: “The identity papers to which Article 27 refers . . . are simply papers which show the identity of the refugee[], without conferring on him any rights at all”; and Vedsted-Hansen, “Article 27,” at 1166–1167, suggesting that Art. 27 is intended simply to respond to the “hardship of having no identity document at all” and as “an element of registration programmes,” though noting obliquely that in the latter context “whether the identity paper issued provides specific information about the refugee status of the holder may have particular relevance.” “The provision applies only if the refugee does not possess a valid travel document, whether issued by the State in which he or she finds themself or by another State; it may even be their national passport”: Weis, Travaux, at 213. “The expression [‘travel documents’] – as used in Article 27 – probably also applies to aliens’ passports, if duly visaed. It is important to note that Article 27 does not require that the travel document must be issued by the State in whose territory the refugee is present, and upon whom the duty to issue an identity paper would devolve if the refugee possessed no valid travel document. In other words, the State in whose territory a refugee finds himself is not obliged to issue identity papers if the refugee possesses a valid travel document, issued by the authorities of that State or of a foreign State”: Grahl-Madsen, Commentary, at 116. “[A]ny travel document held by the refugee may exclude the application of Art. 27, whether that travel document has been issued by the host State or by another State . . . It has been argued that even a national passport issued by the refugee’s country of origin may disqualify the holder from being entitled to identity papers under Art. 27”: Vedsted-Hansen, “Article 27,” at 1173. UNHCR, “Amicus curiae of the United Nations High Commissioner for Refugees (UNHCR) on the interpretation and application of Article 25, Article 27 and Article 28 of the 1951 Convention relating to the Status of Refugees,” Dec. 22, 2016, at [22]. See also UNHCR Executive Committee Conclusion No. 93, “Conclusion on Reception of Asylum-Seekers in the Context of Individual Asylum Systems” (2002), at [b] (“both male and female asylum-seekers should be registered and be issued appropriate documentation reflecting their status as asylum-seeker, which should remain valid until the final decision is taken on the asylum application”). UNHCR, “Identity Documents,” at [9].

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protection,2668 and appreciates the vital importance of the real purpose of Art. 27 – namely, documenting on an interim basis the holder’s status as an asylumseeker.2669 Yet because of its failure to interpret the text in its context, UNHCR feels compelled to state its case as a recommendation,2670 rather than an assertion of legal entitlement under Art. 27. In its Conclusion No. 35, the Executive Committee Recommended that asylum applicants whose applications cannot be decided without delay be provided with provisional documentation sufficient to ensure that they are protected against expulsion or refoulement until a decision has been taken by the competent authorities with regard to their application.2671

Similarly, in Conclusion No. 91, the Executive Committee merely [r]equests States, which have not yet done so, to take all necessary measures to register and document refugees and asylum-seekers on their territory as quickly as possible upon their arrival, bearing in mind the resources available, and where appropriate to seek the support and co-operation of UNHCR.2672 2668

2669

2670

2671

2672

“For purposes of international protection, however, it is often essential that such identity papers also indicate the holder’s refugee status. Proof of refugee status may be of vital importance, for example, in situations where refugees are caught up in police operations directed against aliens whose presence in the country is considered unlawful”: ibid. More generally, the Executive Committee has “[a]cknowledge[d] the importance of registration as a tool of protection, including protection against refoulement, protection against forcible recruitment, protection of access to basic rights, family reunification of refugees and identification of those in need of special assistance, and as a means to enable the quantification and assessment of needs and to implement the appropriate durable solutions”: UNHCR Executive Committee Conclusion No. 91, “Conclusion on Registration of Refugees and Asylum-Seekers” (2001), at [(a)]. “During the period preceding the determination of refugee status, asylum applicants clearly have the same need for appropriate identity documents as recognized refugees”: UNHCR, “Identity Documents,” at [18]. And expressly recalling Executive Committee Conclusion No. 91, the Executive Committee “note[d] the many forms of harassment faced by refugees and asylum seekers who remain without any form of documentation attesting to their status [emphasis added]”: UNHCR Executive Committee Conclusion No. 102, “General Conclusion on International Protection” (2005), at [(v)]. “The risk of expulsion or refoulement may indeed be greater for the asylum applicant – whose status has not yet been regularized and whose entitlement to refugee status has yet to be determined – than for the recognized refugee. It follows therefore that the asylumseeker should be provided with documentation adequate to ensure that his provisional right to protection against refoulement will be respected and that he will be treated in accordance with his status as a person who may in fact be a refugee [emphasis added]”: UNHCR, “Identity Documents,” at [18]. UNHCR Executive Committee Conclusion No. 35, “Identity Documents for Refugees” (1984), at [(d)]. UNHCR Executive Committee Conclusion No. 91, “Conclusion on Registration of Refugees and Asylum-Seekers” (2001), at [g]. The Executive Committee has called for interstate cooperation for “the provision of support to host countries, especially

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In truth, however, these statements largely reflect the essence of the legal duty of states pursuant to Art. 27. There was absolutely no intention at the Conference of Plenipotentiaries to depart from the purposive interpretation adopted by the Ad Hoc Committee; to the contrary, the French representative’s suggestion to amend the language to its present form was explicitly predicated solely on concern to take account of “travel documents issued by countries which, though non-Contracting States, nevertheless wished to accept refugees outside the framework of the Convention.”2673 In other words, provisional refugee identification would not be required by persons in possession of a travel document issued to refugees (under the Convention or otherwise), since a person in possession of a refugee travel document already had sufficient proof of his status as a refugee. But asylum-seekers – whether present legally or illegally, whether their claims were verified or not – are entitled to certification of their provisional right to be treated as refugees. This duty is equally applicable to states that do not routinely assess refugee status, requiring the issuance of documentation to all those treated by domestic law as refugees – including, for example, Mauritian refugees born on Malian territory.2674 This obligation must, of course, be implemented without discrimination2675 – meaning that Nepal’s denial of identification to Tibetan refugees,2676 Yemen’s withholding of documentation from Ethiopian refugees,2677 and Thailand’s rule against documenting refugees from Burma, Laos, and North Korea2678 are unlawful. There is no particular form which the identity document must take.2679 Thus, it is perfectly lawful for Norway to choose simply to issue generic Schengen cards to refugees, since these cards document the holder’s lawful presence as a refugee in the country.2680 But because the duty to issue refugee status identification under Art. 27 is mandatory (“shall issue . . . to any refugee

2673 2674

2675 2678 2679

2680

developing countries, to assist the early and effective registration and documentation of refugees and asylum seekers”: UNHCR Executive Committee Conclusion No. 100, “Conclusion on International Cooperation and Burden and Responsibility Sharing in Mass Influx Situations” (2004), at [(j)]. Statement of Mr. Rochefort of France, UN Doc. A/CONF.2/SR.35, July 25, 1951, at 9. See text at note 2622. Of note, the UNHCR’s Executive Committee “encourages States to make accessible civil registration,” including by “putting in place measures, as appropriate, to ensure that rural or remote locations are reached”: UNHCR, Executive Committee Conclusion No. 111, “Conclusion on Civil Registration” (2013), at [d]. See Chapter 3.4. 2676 See text at note 2618. 2677 See text at note 2617. See text at note 2616. “Identity cards did not necessarily mean identity cards like those issued in European countries; they might simply consist of a document showing the identity of the refugee”: Statement of Mr. Herment of Belgium, UN Doc. A/CONF.2/SR.11, July 9, 1951, at 17. The Canadian government, for example, indicated that it planned simply to use its ordinary immigrant landing documents for this purpose: Statement of Mr. Chance of Canada, ibid. See text at note 2627. See also Immigration Appeals Board v. A, B, and C, Case No. 2017/ 670, HR-2017-2078-A (Nor. SC, Oct. 31, 2017), at [48].

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in their territory”),2681 each state must conceive of a fair and functional process for the issuance of refugee identification documents.2682 As such, when South Africa closed many of its Refugee Reception Centres, forcing refugees to travel hundreds, and in some cases, thousands of kilometers to secure documentation,2683 it failed to honor its Convention obligations. So too did Lebanon when it imposed a fee for the issuance of documentation that is beyond the means of many refugees, knowing that the only alternative is the often abusive and exploitative process of private sponsorship.2684 And both Pakistan’s former process of conditioning the issuance of refugee documentation to Afghan refugees on an affirmative recommendation from an Afghan political party2685 and even its current system of issuing constantly expiring, short-term documentation to refugees place unwarranted barriers to securing the documents that refugees are owed. Perhaps most important, whatever documentation a state issues to refugees must be effective in practice as a means of identifying refugees as rightsholders, and in particular as being entitled to be present and to enjoy other refugee rights in the country.2686 As observed by the South African Supreme Court of Appeal, Until the issuance of . . . as asylum seeker permit . . . a person is considered an illegal foreigner and subject to apprehension, detention, and deportation . . . [N]o person may employ . . . or save for humanitarian assistance and aid, abet, assist, enable or in any manner help an illegal foreigner . . . An asylum seeker permit is thus essential to enable an asylum seeker to live, work and function in South Africa prior to the determination of his or her status.2687

While the sort of refugee identification card issued by Rwanda – generally understood to entitle the bearer to access the full range of services and 2681

2682

2683 2686

2687

Cishahayo Saidi v. Minister of Home Affairs, [2018] ZACC 9 (SA CC, Apr. 24, 2018), at [42]–[43]. “[T]he format and content of the identity papers issued to refugees must be such as to comply with the documentary requirements generally prevailing in the country in which the refugee is present”: Vedsted-Hansen, “Article 27,” at 1174. See text at note 2626. 2684 See text at note 2623. 2685 See text at note 2620. “According to the travaux préparatoires on Article 27, the identity card primarily constitutes permission to reside in the reception country. Its real purpose is to ensure the practical exercise of this right where such right already exists”: UNHCR, “Amicus curiae of the United Nations High Commissioner for Refugees (UNHCR) on the interpretation and application of Article 25, Article 27 and Article 28 of the 1951 Convention relating to the Status of Refugees,” Dec. 22, 2016, at [22]. Minister of Home Affairs v. Somali Association of South Africa Eastern Cape, Dec. No. 831/2013 (SA SCA, Mar. 25, 2015), at [3]. While making a somewhat narrower point, the Constitutional Court agreed that “[w]ithout a temporary permit, there is no protection. This runs counter [to] the very principle of non-refoulement”: Cishahayo Saidi v. Minister of Home Affairs, [2018] ZACC 9 (SA CC, Apr. 24, 2018), at [30].

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employment2688 – is ideal, the core duty is simply to ensure that the documentation enables a refugee to access whatever rights are in fact owed to her. As such, it is not impermissible for Ecuador to issue refugee claimants with documents bearing identity numbers not in the National Civil Registry and which potential employers are thus often reluctant to accept,2689 since refugees only acquire the right to engage in employment once they are “lawfully staying” in the host country.2690 On the other hand, Art. 27 is not respected in Kenya or Thailand, where the documentation issued to refugees does not protect them from frequent arrests at the hands of the police.2691 Much less, of course, is there any warrant for Bangladesh to treat the issuance of documentation to Rohingya refugees as a means to facilitate governmental efforts to force them back to Burma.2692 In sum, any person claiming refugee status in the territory of a state party and not in possession of a refugee travel document is, pursuant to Art. 27, entitled to receive a provisional refugee identity certificate to use until his or her claim to refugee status is finally refused, or until it is accepted and entitlement to a refugee travel document established. This is consistent with the basic approach of the Convention under which a state party has essentially two choices when an asylum-seeker arrives on its territory. It may exercise its right under Art. 32 to expel an asylum-seeker not yet “lawfully in” its territory,2693 if this can be done consistent with its duty to respect a refugee’s acquired rights – including most importantly the duty to avoid the prospect of refoulement, directly or indirectly;2694 or it may provide the asylum-seeker with provisional documentation of refugee status, which entitles that person to be treated as a refugee pending the completion of any procedures established to verify claims to refugee status. Precisely because some refugee rights inhere by virtue of either simple physical presence,2695 or lawful or habitual presence (e.g. while undergoing status determination or in receipt of temporary protection), yet before refugee status is formally acknowledged,2696 Art. 27 is the vital link between theory and reality. If a person legally entitled to the benefit of refugee rights cannot document his or her entitlement to same, the Refugee Convention is of little practical value. The right to receive provisional refugee identification set out in Art. 27 is therefore the essential key to enabling 2688 2691 2693 2695

2696

See text at note 2614. 2689 See text at note 2629. 2690 See Chapter 6.1.1. See text at notes 2631 and 2633. 2692 See text at notes 2634–2635. See Chapters 3.1.3 and 5.1. 2694 See Chapter 4.1. These include the rights elaborated in this chapter: protection from refoulement; freedom from arbitrary detention or penalization for illegal entry; physical security rights; access to the necessities of life; basic property rights; the right to family unity; freedom of thought, conscience, and religion; access to basic primary education; and the right to administrative assistance from host state authorities. These rights are elaborated in Chapter 5, and include protection from expulsion; internal freedom of movement; the right to engage in self-employment; protection of intellectual property rights; and assistance to access the courts.

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refugees to in fact benefit from the protections which states have determined should be their due.

4.10 Judicial and Administrative Assistance As important as it is to insist that persons claiming to be refugees are both identified and provisionally treated as entitled to the protection of the Convention, the practical reality is that refugees will often be unable to enforce their rights without assistance from state or international authorities. As described above,2697 the early generations of refugee accords were predicated on a recognition that “the characteristic and essential feature of the problem was that persons classed as ‘refugees’ have no regular nationality and are therefore deprived of the normal protection accorded to the regular citizens of a State.”2698 Like all non-citizens, refugees were essentially at the mercy of the institutions of a foreign state. In contrast to other foreigners, however, refugees clearly were not in a position to seek the traditional remedy of diplomatic protection from their country of nationality. The High Commissioners appointed by the League of Nations were therefore authorized to name the equivalent of consular representatives to state parties.2699 These representatives not only issued a variety of forms of documentation required by refugees to effectuate their rights, but also “[s]upport[ed] the various requests submitted by refugees to the authorities of their place of residence.”2700 While the formal system of internationally rendered diplomatic protection for refugees came to an end with the onset of the Second World War, “in a number of countries certain quasi-consular functions . . . continued to be rendered to refugees and displaced persons, first by representatives of the PCIRO, and subsequently by the IRO. If such persons came within the mandate of IRO, the representatives of IRO, where necessary, lent 2697 2698

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2700

See Chapter 1.3. “Report by the Secretary-General on the Future Organisation of Refugee Work,” LN Doc.1930.XIII.2 (1930), at 3. Weis writes that “the question of administrative assistance to refugees arose with the establishment of the Soviet Union. As long as the Soviet Union was not recognized, the Czarist consuls continued to render administrative assistance to Russian nationals and refugees. With the recognition of the Soviet Union, these consuls lost their official character. They continued, however, to render assistance to refugees and it was then required that the documents and certifications issued by them should be countersigned by the local representative of the League of Nations High Commissioner for Refugees. The Arrangement concerning the Legal Status of Russian and Armenian Refugees of 30 June 1928 recommended that the League of Nations High Commissioner for Refugees [should], by appointing representatives in the greatest possible number of countries, render the services enumerated in the Arrangement, in so far as such services [did] not come within the exclusive competence of the national authorities”: Weis, Travaux, at 203–204. United Nations, “Statelessness,” at 44.

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them assistance in a variety of forms, ranging from material aid to intervention with the authorities of the country of residence or with the Consuls of the countries of immigration.”2701 In contrast, the Statute of the United Nations High Commissioner for Refugees, drafted contemporaneously with the Refugee Convention,2702 does not mandate the organization to provide refugees with consular assistance of this kind. More generally, the Statute does not grant UNHCR any clear power to champion the enforcement of refugee rights. The agency is authorized to engage in the “promotion” of “the admission of refugees”;2703 it may moreover seek authority from specific states to engage in consular-type work under its mandate to “promot[e] through special agreements with Governments the execution of any measures calculated to improve the situation of refugees . . . [and to] assist[] governmental and private efforts to promote . . . assimilation within new national communities.”2704 At most, the agency may assert its general responsibility to “supervise the application” of the Refugee Convention.2705 But unlike its institutional predecessors, UNHCR is not specifically tasked to act as agent for the enforcement of refugee rights.2706 It was rather the expectation of the drafters of the Refugee Convention that primary responsibility to assist refugees to enforce their rights should fall to the state parties themselves: [E]ven if the Government of the country of asylum grants the refugee a status which ensures him treatment equivalent to or better than that enjoyed by foreigners, it does not follow that on that account alone he will be allowed to enjoy the rights granted to him. If the refugee is actually to enjoy these rights, he must obtain the assistance of an authority which will perform for him the services performed by national authorities in the case of persons with a nationality. In the absence of an international authority, the High Contracting Parties must appoint a national authority which will furnish its assistance to refugees and deliver the documents they require.2707 2701 2702

2703 2705

2706

2707

Ibid. at 46. The UNHCR Statute was adopted by the General Assembly as Res. 428(V), Dec. 14, 1950 (UNHCR Statute). UNHCR Statute, at Art. 8(d). 2704 Ibid. at Art. 8(b)–(c). Ibid. at Art. 8(a), and Refugee Convention, Art. 35. This authority was not, however, intended to displace the primary role of states in oversight of the Refugee Convention. See J. Hathaway, “Who Should Watch Over Refugee Law?,” (2002) 14 Forced Migration Review 23, and more generally Chapter 1.5.2. Thus, for example, when Swaziland threatened the (unlawful) deportation of refugees because they had exercised their international legal entitlement to internal freedom of movement, UNHCR could do little more than request “an extended grace period” within which to arrange alternative protection for the refugees: “Unhappy Refugees to Stay a Little Longer,” Times of Swaziland, Aug. 2, 2002. Secretary-General, “Memorandum,” at 43–44.

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In practice, refugees have often looked to their host country’s courts to secure respect for their rights. Even in states where the courts have no clear role in refugee status determination, judges have at times intervened to ensure the protection of refugees. In one Japanese decision, for example, the court initially ordered the government to pay ¥9,500,000 in damages to a Burmese refugee in respect of what it determined to have been his unlawful detention subsequent to a legally erroneous rejection of his protection claim.2708 While the decision was successfully appealed on the basis that the required standard of wrongfulness for the award of damages against the state had not been proved,2709 the underlying finding that the detention was in breach of the refugee’s rights was not disturbed. And in India, despite that country’s failure to accede to the Refugee Convention or Protocol, judges have shown remarkable creativity in crafting remedies for refugees that effectively vindicate Convention rights.2710 In other contexts, however, host governments may deny refugees access to their legal system. Verdirame reported an extreme case, in which the Kenyan government, acting through UNHCR and its implementing partner, simply left a refugee community to administer justice for itself, effectively ignoring its responsibility to ensure that the rights of refugees on its territory were respected: In theory, Kenyan law applies to Kakuma Camp. In practice, this seldom happens. In Kakuma, refugees have been allowed to establish their own “court” system which is funded by [UNHCR’s implementing partner], Lutheran World Federation . . . Punishment meted out by these courts in camps . . . includes flogging. During a visit in July 1997, the obvious human rights implications of such decisions were brought to the attention of agency staff. This concern was dismissed with the observation that “this is their culture” . . . The population of Kakuma Camp, although living on the territory of Kenya, is administered by humanitarian organizations, independently of 2708

2709

2710

The award included ¥8,000,000 in respect of emotional distress suffered during the period of unlawful detention, and a further ¥1,500,000 to cover his legal fees: Z v. Japan, 1819 HANREI JIHO 24 (Jp. Tokyo DC, Apr. 9, 2003). Specifically, it was determined that while the detention was itself unlawful, a stricter standard of illegality is required before damages may be awarded in accordance with the terms of the State Redress Act: Japan v. Z, No. Heisei 16 Gho Ko 131 (Jp. Tokyo HC, Jan. 14, 2004), appeal denied No. Heisei 16 Gyo Tsu 106, Heisei 16 Gyo Hi 115 (Jp. SC, May 16, 2004). See e.g. the foundational decision in National Human Rights Commission v. State of Arunachal Pradesh, (1996) 83 AIR 1234 (In. SC, Jan. 9, 1996) finding that a “clear and present danger” to the lives of Chakma refugees from Bangladesh entitled them to protection under Art. 21 of the Constitution of India. The history of Indian judicial engagement with refugee rights is surveyed in N. Ahmad, “The Constitution-Based Approach of Indian Judiciary to the Refugee Rights and Global Standards of the UN Convention,” (2017) 8 King’s Students Law Review 30.

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the government, outside its judicial system, with no checks on powers and, in effect, without legal remedies against abuses.2711

In other contexts refugees may in principle be entitled to access the justice system, but in practice not realistically be able to do so. For example, while Georgia’s Law on Refugees purports to grant refugees the right to equal protection under the law without discrimination, shortcomings in the law’s practical implementation led many Chechen refugees to seek dispute resolution instead from their traditional Council of Elders, comprised of men over the age of fifty – a body with no transparency, and in which women are often disadvantaged.2712 And in South Africa, the closure of three of six Refugee Reception Centres has meant that refugee claimants unable to traverse hundreds of kilometers to a remaining office have in practice been unable to secure access to that country’s legal system.2713 Clearly, judicial assistance may be of greatest value to a refugee seeking recognition of his or her status as a refugee: unless refugee status is acknowledged by the host state, a fair assessment of refugee status is the indispensable means by which to vindicate Convention rights.2714 Yet even on this vitally important question, refugees do not always enjoy clear access to the courts. In Canada, for example, national security concerns have been invoked to justify the non-disclosure of some evidence to refugee claimants in inadmissibility hearings, detention reviews, and appeals;2715 designated judges moreover are 2711 2712

2713

2714

2715

Verdirame, “Kenya,” at 62–64. “Their decisions are informed by long held traditions and practices and do not necessarily respect the human rights of those involved. It is difficult to understand how the Council of Elders works as it operates in a traditional manner and is closed to outsiders”: UNHCR, “Georgia: Analysis of Gaps in the Protection of Refugees,” April 2008, at 39. “Timely access to a [Refugee Reception Centre] is . . . critical not just for asylum seekers to legalize their stay in this country, but also for the effective protection of their rights. In terms of s. 27 of the Act, a refugee has a range of rights, including full legal protection, the right to remain in the Republic and the entitlement to: (a) apply for an immigration permit, an identity document and a travel document; and (b) the same basic health services and primary education which inhabitants of the Republic receive from time to time. In practice, however, there are usually significant obstacles in the path of asylum seekers and refugees”: Minister of Home Affairs v. Somali Association of South African Eastern Cape, Dec. No. 831/2013 (SA SCA, Mar. 25, 2015), at [4]. See W. Kälin, “Temporary Protection in the EC: Refugee Law, Human Rights, and the Temptations of Pragmatism,” (2001) 44 German Yearbook of International Law 221 (Kälin, “Temporary Protection”), at 218: “Although the 1951 Convention does not contain any provisions relating to national status determination procedures, the principle of good faith in fulfilling treaty obligations requires, as has been stressed by the German Constitutional Court [citing the case of EZAR 208, 2 BvR 1938/93; 2 BvR 2315/93 (Ger. FCC, May 14, 1996), abstracted in (1997) 9 International Journal of Refugee Law 292], that States Parties to the Convention institute a procedure which allows for a determination of who is entitled to the guarantees of that treaty.” Immigration and Refugee Protection Act, s. 86. See also Canadian Council for Refugees, “Comments on Bill C-51, the Anti-Terrorism Act, 2015,” Mar. 11, 2015, at 1–2.

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not allowed to review the full file, but only evidence that is “relevant to the ground of inadmissibility stated.”2716 In the United States, refugee claimants seeking withholding of removal are no longer entitled to a full evidentiary hearing on the merits of their claims.2717 Nor is an administrative decision to detain a refugee claimant for the duration of the status assessment process subject to appeal or review by American courts.2718 Angola has been criticized by the UN Human Rights Committee for its practice of detaining refugees and other undocumented migrants without recourse to a court to pronounce on the legality of that detention.2719 Australia has gone farther still, actually “excising” all of its territory from what it calls its “migration zone,” meaning that any refugee arriving by boat can be sent to offshore detention facilities without having had any access to Australian courts.2720 The ability of refugees to seek an appeal or review of a negative decision on status determination is even more frequently stymied. Refugees arriving “irregularly” to Canada and who are classified as “designated foreign nationals,” for example, must prove their claims while in prison and with limited access to legal 2716

2717

2718

2719

2720

Prior to the enactment of the 2015 amendments, decision-makers were entitled to review the entire file rather than only evidence deemed “relevant” to the alleged ground of inadmissibility: Immigration and Refugee Protection Act, Division 90. See also G. Hudson, “As Good as it Gets? Security, Asylum, and the Rule of Law after the Certificate Trilogy,” (2016) Osgoode Legal Studies Research Paper Series, at 4–5. See Matter of EFHL, 27 I&N Dec. 226 (US AG, Mar. 5, 2018), vacating Matter of EFHL, 26 I&N Dec. 319 (US BIA, June 12, 2014). “The decision whether or not to detain an asylum seeker apprehended at or near the border occurs at two stages. First, for individuals whom [Customs and Border Protection] officers have decided to enter into summary removal under section 212(a)(6)(c) or 212(a)(7) [of the Immigration and Nationality Act], detention is automatic. The [Immigration and Nationality Act] does not require judicial review of this period of detention . . . Second, once an individual passes the credible fear screening, the decision to detain is, by statute, discretionary. In practice, however, a combination of [Immigration and Customs Enforcement]’s inconsistent application of custody determination criteria and the setting of high bond amounts has caused asylum seekers to ‘languish in detention for months, if not years’”: L. Dominguez et al., “US Detention and Removal of Asylum Seekers: An International Human Rights Law Analysis,” Allard K. Lowenstein International Human Rights Clinic of Yale Law School, June 20, 2016, at 33. “The Committee is concerned . . . at reports that undocumented migrants may be subjected to detention without recourse to a court to pronounce on its legality. Moreover, the Committee is concerned at the fact that the State party has stopped its registration procedure for asylum seekers who may therefore be under threat of refoulement”: Concluding Observations on the Initial Report of Angola, adopted by the Committee at its 107th session (11–28 March 2013), UN Doc. CCPR/C/AGO/CO/1, Apr. 29, 2013, at [16]. J. Phippen, “Australia’s Controversial Migration Policy,” Atlantic, Apr. 29, 2016. While the claims of refugees arriving by air are processed in Australia, a “capping” regulation limits the number of protection visas authorized in a given year. In the result, refugees may remain in detention for months or even years: Plaintiff M150/2013 v. Minister for Immigration and Border Protection, [2014] HCA 25 (Aus. HC, June 20, 2014), at [31].

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counsel, interpreters, and community support. If their claims are denied, they have no right of access to the Refugee Appeal Division and are subject to immediate removal.2721 A similar scheme restricts access to appeals for persons arriving via the United States or from “designated” countries of origin.2722 Even where appeals are in principle available, the review of rejected refugee claims may be foreclosed in practice by the setting of rigid deadlines within which an individual is required to seek judicial intervention. Britain’s infamous “fast track” procedures resulted in a seven-day appeal deadline deemed “so tight that many asylum seekers [were] denied the opportunity to present their appeals effectively.”2723 Under European Union law, states may opt not to grant suspensive recourse to those whose applications are considered unfounded, manifestly unfounded, or inadmissible.2724 Perhaps most notoriously, Hungary’s 2018 reduction of the filing deadline to appeal negative admissibility determinations from seven to three days,2725 combined with the removal of appellants to transit zones and denial of access to food therein, was said to have the “aim of dissuading them from pursuing court appeals against inadmissibility decisions. The goal of the Hungarian government . . . is to make these people abandon their asylum applications by leaving the transit zones and returning to Serbia.”2726 Refugee Convention, Art. 16(1) Access to Courts A refugee shall have free access to the courts of law on the territory of all Contracting States. Civil and Political Covenant, Art. 14(1) All persons shall be equal before the courts and tribunals. In the determination . . . of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law . . . 2721

2722 2723

2724 2725

2726

See A. Grant and S. Rehaag, “Unappealing: An Assessment of the Limits on Appeal Rights in Canada’s New Refugee Determination System,” (2016) 49(1) University of British Columbia Law Review 203, at 257–258. Ibid. at 224. The Lord Chancellor v. Detention Action, [2015] EWCA Civ 840 (Eng. CA, July 29, 2015), at [24]. EU Procedures Directive (recast), at Art. 46(6) and (7). “Asylum seekers have the right to request judicial review of a Dublin decision before the competent Regional Administrative and Labour Court within 3 days. The extremely short time limit of 3 days for challenging a Dublin transfer does not appear to reflect the ‘reasonable’ deadline for appeal under Article 27(2) of the Dublin III Regulation or the right to an effective remedy under Article 13 ECHR”: Asylum Information Database, “Country Report: Hungary 2018,” www.asylumineurope.org/reports/country/hungary, accessed Feb. 20, 2020, at 39. “NGO says Hungary Denies Food to Asylum Seekers,” Infomigrants.net, Aug. 23, 2018. See also Hungarian Helsinki Committee, “Asylum-Seekers with Inadmissible Claims are Denied Food in Transit Zones at Border,” Aug. 17, 2018.

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Refugee Convention, Art. 25 Administrative Assistance 1. When the exercise of a right by a refugee would normally require the assistance of authorities of a foreign country to whom he cannot have recourse, the Contracting States in whose territory he is residing shall arrange that such assistance be afforded to him by their own authorities or by an international authority. 2. The authority or authorities mentioned in paragraph 1 shall deliver or cause to be delivered under their supervision to refugees such documents or certifications as would normally be delivered to aliens by or through their national authorities. 3. Documents or certifications so delivered shall stand in the stead of the official instruments delivered to aliens by or through their national authorities, and shall be given credence in the absence of proof to the contrary. 4. Subject to such exceptional treatment as may be granted to indigent persons, fees may be charged for the services mentioned herein, but such fees shall be moderate and commensurate with those charged to nationals for similar services. 5. The provisions of this article shall be without prejudice to articles 27 and 28. One possible means of assisting refugees to vindicate their rights would have been to return to the pre-Second World War precedent of empowering the international supervisory agency, presently the UNHCR, to undertake quasiconsular representation on behalf of refugees. Yet in line with the more general determination of states to decentralize authority for the implementation of refugee protection,2727 no such proposal was tabled.2728 The failure to grant UNHCR a general responsibility to assist refugees to vindicate their rights largely reflects a deference to the decision of the General Assembly not specifically to include this responsibility in the agency’s mandate.2729 There was also a clear disinclination to tie the hands of the future 2727

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See J. Hathaway, “A Reconsideration of the Underlying Premise of Refugee Law,” (1990) 31(1) Harvard International Law Journal 129, at 166–168. The strongest endorsement of an international mechanism for effectuating the exercise of refugee rights was contained in the French draft of Art. 25, under which UNHCR would have had automatic residual authority to provide administrative assistance to refugees – but only if a state failed to devise its own system for facilitating the implementation of refugee rights. “In all cases in which the exercise of a right by the foreigner normally requires the administrative assistance of the authorities of his country or of its representatives abroad, the High Contracting Parties undertake either to appoint a national authority or, failing that, to empower the High Commissioner for Refugees to furnish assistance to refugees”: France, “Draft Convention,” at 8. The relevant discussions occurred in the Ad Hoc Committee several months before UNHCR was established, and the representatives were understandably reluctant to usurp the jurisdiction of the General Assembly to define the agency’s role. “The High

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Office of the High Commissioner, which might not wish to undertake protection work in precisely the same way as had its predecessors.2730 Because of these operational uncertainties, the drafters insisted that states assume the basic responsibility to facilitate the exercise of rights by refugees. While a government might validly delegate its duty to provide administrative assistance to a willing international agency, the government ultimately remains responsible to ensure that refugees actually receive the assistance they require.2731 As framed by the American representative, There was a danger that some countries might seek to relieve their own agencies of administrative responsibility by referring refugees to an international authority . . . In order to eliminate the risk of leaving refugees unprotected, it seemed advisable to make it mandatory upon

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Commissioner had not yet been appointed, the nature of his functions was not known, and it was still not clear whether he would administer them through offices in various countries or through a central agency”: Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.19, Feb. 1, 1950, at 2. See also Statement of Sir Leslie Brass of the United Kingdom, ibid. at 3: “[I]t was beyond the competence of this Committee to attribute functions to the High Commissioner or to imply that his office would exercise functions in various countries.” At the meeting of the Conference of Plenipotentiaries – which occurred after the enactment of the UNHCR Statute – one delegate expressed resignation that nothing could be done to reverse the decision of the General Assembly not to entrust UNHCR with the duty to render administrative assistance to refugees. “The Belgian Government regretted that a task of this nature had not been entrusted exclusively to an international authority. Under his mandate, the High Commissioner could protect only groups of refugees, and that was where the tragedy lay in certain cases, where the refugee needed not only the protection which the relations established between the High Commissioner and national authorities afforded him, but individual protection as well”: Statement of Mr. Herment of Belgium, UN Doc. A/CONF.2/SR.11, July 9, 1951, at 12. “[T]he language still appeared to retain a certain weakness inasmuch as it might be interpreted as granting a country the right, if it so desired, to designate an international authority to furnish assistance to refugees, regardless of the wishes of the international authority concerned”: Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/ SR.19, Feb. 1, 1950, at 6. The immediate reply of the Israeli delegate – which the drafters agreed “should be incorporated into the Committee’s report in order to meet the point of the United States representative” – was that “[o]bviously [states] could not arbitrarily designate an international body as the authority in question against its wishes. The reference to international authorities could be invoked only if an appropriate international organ existed and was willing to assume the obligation envisaged in the paragraph. Where no such organization existed, the Contracting Party would have to designate an authority to furnish requisite assistance to refugees”: Statement of Mr. Robinson of Israel, ibid. at 7. At the commencement of debate on this issue, the French delegate quickly assured his colleagues that even the French proposal “would leave each state free to decide whether administrative assistance should be furnished by its own national authorities or by an international authority, if such authority existed. It was not intended to impose duties upon the High Commissioner nor to give him exclusive competence in the matter”: Statement of Mr. Ordonneau of France, ibid. at 2.

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Governments to assume responsibility except when an international authority functioning in their territory was in a position to do so. In the latter event, States should retain the option of accepting the authority of an international organ.2732

In line with this perspective, the Refugee Convention requires each state party to conceive an administrative mechanism that enables all refugees in its territory to exercise their Convention rights.2733 The precise content of the duty of administrative “assistance” to be provided by a refugee’s country of residence under Art. 25(1) is not, however, set out in the Convention. While the Committee deleted a parenthetical reference to consular assistance as an unnecessary refinement,2734 it indicated no intention to vary the sorts of administrative assistance traditionally provided to refugees. As GrahlMadsen suggests, the duty to provide administrative assistance to refugees under paragraph 1 of Art. 25 therefore goes beyond the responsibility to issue documents set out in paragraph 2, and logically includes “correspondence, investigations, recommendations, counseling, [and] personal assistance”2735 needed to enable refugees to benefit from their Convention rights.2736 In line 2732

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Statement of Mr. Henkin of the United States, ibid. at 2–3. Sir Leslie Brass of the United Kingdom, ibid. at 3, also emphasized that a consular role for an international agency on behalf of refugees “was not contemplated by the United Kingdom government.” See also Statements of the Chairman, Mr. Chance of Canada, and Mr. Perez Perozo of Venezuela, ibid. The Constitutional Court of Ecuador has thus ruled that by virtue of duties at international law authorities must ensure that the right to asylum is made real and effective: Dec. No. 1567-13-EP (Ec. CC, Mar. 25, 2015), at [17]. “[T]he central purpose of Art. 25 . . . is to ensure that refugees are able in practice to enjoy the rights for which the 1951 Convention provides; in many ways, this epitomizes the ‘surrogate protection’ that international refugee law is intended to be”: E. Lester, “Article 25,” in A. Zimmermann ed., The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary 1129 (2011) (Lester, “Article 25”), at 1131. The original draft provided that “[i]n all cases in which the exercise of a right by a foreigner requires the assistance of the authorities of his country (in particular of the consular authorities) the High Contracting Parties shall designate an authority which shall furnish assistance to refugees”: Secretary-General, “Memorandum,” at 43. The reference to consular assistance was said by the Belgian representative to lack “clarity,” leading the Brazilian delegate to suggest its deletion on the grounds that “the introductory clause of paragraph 1 was sufficiently clear in that respect”: Statements of Mr. Cuvelier of Belgium and Mr. Guerreiro of Brazil, UN Doc. E/AC.32/SR.19, Feb. 1, 1950, at 4. Grahl-Madsen, Commentary, at 103. Weis asserts at least as broad an understanding, noting that “[t]he term ‘administrative assistance’ is wider than the functions enumerated in the Arrangement of 1928. It may include investigations, counseling and personal assistance. It includes the functions normally exercised by consuls”: Weis, Travaux, at 204. The Belgian representative to the Conference of Plenipotentiaries stressed the importance of Art. 25 as mandating a mechanism to provide “individual protection” to refugees beyond the group-based protection role granted to UNHCR under its Statute: Statement of Mr. Herment of Belgium, UN Doc. A/CONF.2/SR.11, July 9, 1951, at 12.

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with this broad understanding, the High Court of Australia struck down a law allowing the government to refuse to issue a protection visa to persons found to be refugees. As the Chief Justice noted, Protection visas are a mechanism, albeit not the only mechanism, by which Australia can discharge its international obligations . . . A construction . . . which would permit the deferral of a decision about an application for a protection visa by a person in respect of whom Australia has been found to owe protection obligations . . . would be at odds with the purposes of the statutory scheme of which protection visas are a central part.2737

Nor may a state party validly limit respect for refugee rights to only such refugees as are somehow able to advance those rights independently;2738 governments instead have an affirmative responsibility under Art. 25(1) to establish a mechanism by which refugees may benefit in practice from their legal entitlements.2739 This duty was infringed by South Africa when it closed half of its Refugee Reception Centres, thus leaving many refugees unable to travel hundreds of kilometers with no practical means to claim their rights.2740 In issuing an order of mandamus to reopen the reception center in Port Elizabeth, the South African Supreme Court of Appeal held that The condition of being a refugee connotes a “special vulnerability as refugees by definition are persons in flight from the threat of serious human rights abuse” . . . Timely access to [a Refugee Reception Centre] is . . . critical not just for asylum seekers to legalise their stay in this country, but also for the effective protection of their rights.2741 2737

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Plaintiff M150/2013 v. Minister for Immigration and Border Protection, [2014] HCA 25 (Aus. HC, June 20, 2014), at [36]–[38]. An earlier decision of the Australian Full Federal Court similarly took umbrage at the decision of the Minister not to grant a protection visa to a recognized refugee, observing “that refusal of a protection visa to a person found to be a refugee would involve refusal of many of Australia’s protection obligations with respect to that person . . . [S]ome account has to be paid to the acknowledgment that he was a refugee in respect of whom Australia had voluntarily accepted protection obligations”: NBMZ v. Minister for Immigration and Border Protection, [2014] FCAFC 38 (Aus. FFC, Apr. 9, 2014), at [138], [189]. “States [must] take positive steps to provide administrative assistance, or to ensure that administrative assistance is provided”: Lester, “Article 25,” at 1140. “[T]he language of article [25] [is] mandatory, rather than permissive. It placed upon Governments the obligation to provide administrative assistance to refugees who could not obtain it through normal consular channels since they no longer enjoyed the protection of their country of origin”: Statement of Mr. Robinson of Israel, UN Doc. E/AC.32/ SR.19, Feb. 1, 1950, at 4. At the first session of the Ad Hoc Committee, the text of Art. 25(1) was amended to make this affirmative duty clear by adding the words “shall arrange” (so that it read, “The Contracting State . . . shall arrange that such assistance be afforded”): Ad Hoc Committee, “First Session Report,” at Annex I. See text at note 2713. Minister of Home Affairs v. Somali Association of South Africa Eastern Cape, Dec. No. 831/2013 (SA SCA, Mar. 25, 2015), at [2], [4]. The European Court of Human Rights has

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States may implement the duty of administrative assistance directly, for example by establishing or empowering an independent national authority to assist refugees,2742 or including refugee protection within the mandate of one or more2743 existing governmental agencies.2744 Alternatively, they may make arrangements with UNHCR or another international agency2745 to act as intermediary in assisting refugees to secure their rights.2746 In view of the explicit language of Art. 25(1),2747 however, it would not be sufficient to entrust the provision of administrative assistance to a non-governmental organization unless that organization receives delegated power from the state, or from an international organization acting at the state’s behest.2748 The critical concern

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similarly insisted “that the accessibility of a remedy in practice is decisive when assessing its effectiveness”: MSS v. Belgium, Dec. No. 30696/09 (ECtHR, Jan. 21, 2011), at [318]. “In some countries, such as the United Kingdom, no special machinery had been set up. In others, however, special offices had been established for that purpose. In fact, the provision was based on the practice of Belgium and France”: Statement of Mr. Robinson of Israel, UN Doc. E/AC.32/SR.19, Feb. 1, 1950, at 4. “[I]nasmuch as refugees might have to apply to several authorities in order to secure administrative documents, the words ‘an authority’ in the final clause of the paragraph should be in the plural”: Statement of Mr. Cha of China, ibid. at 4. See also Statements of Mr. Kural of Turkey, ibid., and Mr. Perez Perozo of Venezuela, ibid. at 5. “[T]he word ‘designate’ did not imply that an authority to furnish assistance to refugees was necessarily to be established; such authority or authorities might already exist in certain countries, in which case they need merely be designated”: Statement of Mr. Cuvelier of Belgium, ibid. at 5. See also Statement of Mr. Robinson of Israel, ibid.: “[T]he reference [in the Secretary-General’s draft] to the Arrangement of 30 January 1928 [under which the responsibility to provide administrative assistance was entrusted to a High Commissioner for Refugees] would in itself appear to make the creation rather than the mere designation of a special authority mandatory; as that was not the intention of the Committee, the reference to the Arrangement of 1928 should be deleted.” “Article 25 does not specify any particular international authority. A Contracting State is therefore free to choose any international authority it likes, which is able and willing to carry out the task. It is, however, clear that the drafters of the Convention had in particular the Office of the High Commissioner for Refugees in mind. It was decided, however, not to mention this Office by name, because it was felt that the Contracting States should not impose any tasks on it, this being a matter for the United Nations to decide, and because there was a possibility that the Convention would survive the Office”: Grahl-Madsen, Commentary, at 105. “A Government may itself provide such assistance by creating an authority to do so or by assigning the task to an existing national authority, or a country may prefer to make arrangements for an international authority to render such assistance. If, for example, the United Nations High Commissioner for Refugees should deal with administrative assistance, a country may arrange with the High Commissioner to have such assistance rendered in its territory. In any event, however, there is an obligation on the Contracting State to see that such assistance is provided”: Ad Hoc Committee, “First Session Report,” at Annex I. It is the duty of states to “arrange that such assistance be afforded . . . by their own authorities or by an international authority”: Refugee Convention, at Art. 25(1). “[T]he contracting State would nonetheless remain accountable”: Lester, “Article 25,” at 1141. As determined by the Hong Kong Court of First Instance, “UNHCR is not

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is to ensure that the entity charged with assisting refugees be genuinely in a position to act authoritatively.2749 All refugees, whether or not their status has been formally verified, are entitled to benefit from administrative assistance.2750 Some confusion on this point could arise from the fact that this duty falls on a refugee’s state of “residence,” which might suggest that only refugees who meet one of the higher degrees of attachment (e.g. lawful or habitual presence, or lawful stay) may assert a right to assistance.2751 This conclusion is not, however, justified. Not only does the text not qualify the beneficiary class by reference to a level of attachment, but the drafters generally used the phrase “residence” (as opposed to habitual residence, or domicile)2752 in a way that implied no more than transient presence in a state party.2753 Significantly, the original

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unaccountable. It is accountable to the Director [of Immigration] himself . . . If [counsel for the appellants] is correct [in suggesting that UNHCR actions are immune from judicial scrutiny], it means that the Director may not lawfully seek the assistance of any international body that is not subject to the supervisory jurisdiction of the Hong Kong courts . . . That, in my view, would lead to an absurdity”: C v. Director of Immigration, Dec. No. HCAL 132/2006 (HK HC, Feb. 18, 2008), at [189]–[190]. “If the refugee is actually to enjoy these rights, he must obtain the assistance of an authority which will perform for him the services performed by national authorities in the case of persons with a nationality. In the absence of an international authority, the High Contracting Parties must appoint a national authority which will furnish its assistance to refugees”: Secretary-General, “Memorandum,” at 43–44. See also Statement of Mr. Herment of Belgium, UN Doc. A/CONF.2/SR.11, July 9, 1951, at 12, who “stressed the importance of article [25], which was designed to meet one of the most constant and essential needs of refugees . . . In many European countries refugees . . . would like to be able to get into direct touch with someone who was responsible for protecting them [emphasis added].” The text of Art. 25 grants “refugees” without qualification the right to a state’s administrative assistance. See generally Chapter 3.1.1. See also Lester, “Article 25,” at 1137 (“Given that refugee status is a declaratory status, the provision may also be taken to apply to asylum seekers entering or seeking to enter a refugee status determination procedure and to prima facie refugees in situations of mass influx”). See generally Chapter 3.1. “The word ‘habitual’ (Arts. 14, 16(2)) is not used, indicating that a permanent residence is not required”: Robinson, History, at 131. See also Grahl-Madsen, Commentary, at 104: “The State ‘in whose territory he is residing,’ or the country of residence, is not the same as the country where a refugee has domicile or where he is ‘lawfully staying’ or allowed to settle.” See generally Chapter 3.1.3. For example, in debate on Art. 12 of the Convention, the Belgian representative expressed his concern about how to deal with the case of “a refugee domiciled in China, where he had his family and his business, [but] who might visit Belgium on a business trip. If he should happen to die in Belgium, it would be ludicrous to determine his status on the basis of the law of the country of residence. He would normally be subject to the law of China, his country of domicile [emphasis added]”: Statement of Mr. Cuvelier of Belgium, UN Doc. E/AC.32/SR.8, Jan. 23, 1950, at 7. Significantly, it was also a representative of Belgium who introduced the notion of “residence” into Art. 25 at the Conference of Plenipotentiaries: See text at notes 2757–2758.

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draft text imposed the duty of administrative assistance simply on “the High Contracting Parties.”2754 The Ad Hoc Committee amended this formulation to assign the duty to “[t]he Contracting State in whose territory the exercise of a right by aliens would normally require the assistance of the authorities of the country of nationality”2755 in order to make clear that there was a duty to assist refugees not just in their asylum country, but also in any country to which the refugee might travel or have dealings.2756 At the Conference of Plenipotentiaries, however, the Belgian representative observed that it would make more sense to assign the duty of administrative assistance to a single state.2757 Because a refugee might need to exercise a right in a non-contracting state, “the country of residence should lend its good offices. The concept of territory should, for those reasons, be omitted from the provisions governing the exercise of a right by refugees.”2758 Thus, the amendment of the text of Art. 25 to assign responsibility for the provision of administrative assistance to a refugee’s country of residence was in no sense an effort to restrict the beneficiary class of Art. 25, but was rather intended simply to make clear that the country in which the refugee is staying should assist him or her, even when necessary for the exercise of a right outside that state’s jurisdiction.2759 This interpretation most readily advances the 2754 2755 2756

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Secretary-General, “Memorandum,” at 43. Ad Hoc Committee, “First Session Report,” at Annex I. “Refugees do not enjoy the protection and assistance of the authorities of their country of origin. Consequently, even if the government of the country of asylum grants the refugee a status which ensures him treatment equivalent to or better than that enjoyed by aliens, he may not in some countries be in a position to enjoy the rights granted him. Often he will require the assistance of an authority which will perform for him the services performed by national authorities in the case of persons with a nationality. In this article, governments undertake to assure that refugees obtain required assistance . . . [T]here is an obligation on the Contracting States to see that such assistance is provided [emphasis added]”: Ad Hoc Committee, “First Session Report,” at Annex II. “He did not consider that the obligation on Contracting States to afford refugees the necessary administrative assistance was brought out with sufficient clarity in that paragraph . . . In the opinion of the Belgian delegation . . . the responsibility should be placed squarely on the authorities of the country of residence, who were better able to come to the assistance of refugees”: Statement of Mr. Herment of Belgium, UN Doc. A/CONF.2/ SR.11, July 9, 1951, at 12–13. Statement of Mr. Herment of Belgium, ibid. at 13. Both the Colombian delegate and the High Commissioner for Refugees voiced their approval of this change (see Statements of Mr. Giraldo-Jaramillo of Colombia and of Mr. van Heuven Goedhart of UNHCR, ibid. at 14), which was adopted by the Conference without further debate: ibid. at 15. Weis notes that “[a]dministrative assistance is not limited to the territorial authorities of the country of residence. Diplomatic or consular authorities may be designated to render this assistance to refugees while abroad or they may furnish such assistance provided it is furnished ‘under the supervision’ of the designated authority”: Weis, Travaux, at 204. Lester’s view that “the obligation to provide administrative assistance is not territorially constrained” (Lester, “Article 25,” at 1138) should thus be understood to refer to the

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purposes of the Refugee Convention: since there is no doubt that some rights inhere in refugees prior to their being granted a more durable status in an asylum country,2760 it would be nonsensical to allow states effectively to avoid their reciprocal duties toward refugees by refusing refugees the assistance required to invoke their rights.

4.10.1 Documentation One of the most basic concerns of refugees is to acquire the sorts of official documentation often required to function in the asylum country. Art. 25(2) is expressly addressed to this matter.2761 It requires the state in which a refugee is presently residing to provide the refugee with “such documents or certifications as would normally be delivered to aliens by or through their national authorities.”2762 The explanatory note to the Secretary-General’s original proposal for Art. 25(2) provides a helpful sense of both the scope of the duty, and the rationale for such a provision: In order to perform the acts of civil life (marriage, divorce, adoption, settlement of succession, naturalization, acquisition of immovable property, constitution of associations, opening of bank accounts, etc.), a person must produce documents to certify his identity, position, civil status, nationality, etc., and if he is a foreigner, to testify to the provisions of his former or present national law and the conformity of instruments executed in his country of origin with the legislation of that country . . . It is easy for a foreigner to obtain such documents. He merely has to apply to the national services which operate in his country of origin or which are accredited abroad and they will deliver the documents which he requires. A refugee whose links with his country of origin are broken cannot obtain such papers from the authorities of that country. In the absence of any international authority, a national authority designated for the purpose will be required to issue to refugees all the documents of which they stand in need.2763

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scope of the single designated state’s responsibilities, not to suggest that multiple states are obliged to provide a refugee with administrative assistance. See Chapter 3.1. “‘[D]ocuments or certifications’ is narrower than the broader concept of ‘administrative assistance’”: Lester, “Article 25,” at 1143. “The words ‘by or through’ (their national authorities) . . . indicate that it is either the local authority which ordinarily renders the service or the consula[r] authorities through which the documents or certifications are procured or delivered”: Robinson, History, at 130. See also Grahl-Madsen, Commentary, at 105: “Paragraph 2 allows a flexible system to be established, on the [sole] condition that there is some supervision by a competent authority.” Secretary-General, “Memorandum,” at 44. Note, however, that the substance of a refugee’s personal status is governed by the rules which pertain in his or her country of

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This responsibility does not, however, include the issuance of either refugee identity or travel documents, matters regulated by Arts. 27 and 28 of the Convention respectively.2764 Nor does it amount to a duty to issue documents which the refugee could readily acquire by independent effort,2765 or which are not genuinely necessary to the conduct of daily life or for the vindication of a refugee’s rights. For example, it was noted by the drafters that in most common law states, non-citizens were allowed to rely on an affidavit attesting to relevant facts, rather than securing official documentation from governmental

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domicile, in accordance with Art. 12 of the Refugee Convention. See generally Chapter 3.2.4. These matters are expressly excluded by Art. 25(5). The duty to issue identity documents is discussed at Chapter 4.9; the issuance of travel documents is considered in Chapter 6.6. Art. 25(5) was added to the text to respond to concerns of some representatives that its scope might otherwise appear to be overly broad. The American delegate, for example, credited the Swiss observer “for pointing out that article [25] might appear to cover travel documents, which were properly the subject of article [28]. The Drafting Committee might wish to make some change to remove the possibility of confusion”: Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.38, Aug. 17, 1950, at 21. Similarly, the Chairman of the Ad Hoc Committee confirmed that “the ‘certifications’ referred to in article [25] were not identity papers but evidence of such matters as marital status or medical proficiency”: Statement of the Chairman, Mr. Larsen of Denmark, ibid. As UNHCR has noted, Arts. 25, 27, and 28 “may need to be read together . . . as part of a single system of protection of the refugee’s entitlement to identity and documentation”: UNHCR, “Amicus curiae of the United Nations High Commissioner for Refugees (UNHCR) on the interpretation and application of Article 25, Article 27 and Article 28 of the 1951 Convention Relating to the Status of Refugees,” Dec. 22, 2016, at [21]. For example, the British delegate asked whether “if a Spanish refugee currently in England required a birth certificate, would the United Kingdom Government be obliged to attempt to procure the certificate for him, although in such a case the refugee might presumably obtain the document simply by requesting it from the Spanish Government’s Registrar of Births?”: Statement of Sir Leslie Brass of the United Kingdom, UN Doc. E/ AC.32/SR.19, Feb. 1, 1950, at 6. The response was “that the hypothesis just mentioned by the United Kingdom representative automatically fell outside the scope of paragraph 1 which would operate only in the case of a refugee unable to secure the necessary documents from the authorities of his country”: Statement of Mr. Cuvelier of Belgium, ibid. As this exchange makes clear, the duty to provide refugees with documents under Art. 25(2) is appropriately considered a subset of the more general duty of administrative assistance set out in Art. 25(1). See Grahl-Madsen, Commentary, at 106: “Whereas Paragraph 1 deals with administrative assistance of any description, Paragraph 2 is restricted to ‘documents or certifications.’” But as Grahl-Madsen insists, “[a] refugee cannot be expected to ask the authorities of his country of origin for assistance, and the authorities of the country of residence consequently cannot refuse to afford assistance on the ground that the refugee has not first tried [to see] if the former can help him. The same must apply if the refugee needs documentation relating to acts which have taken place in countries with a regime similar to that prevailing in [the refugee’s] country of origin, e.g. if a refugee from Hungary needs a certificate from Czechoslovakia or Romania. If, on the other hand, administrative assistance is required from some other country where a refugee cannot fear any persecution, e.g. a country where he formerly enjoyed asylum, the refugee must try [to] get what he needs from that country”: ibid. at 103.

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authorities. Refugees could, of course, do the same.2766 But where official documentation is required, a commitment from the authorities of the refugee’s host state to provide the refugee with substitute documentation is often critical.2767 As observed by the Belgian delegate to the Conference of Plenipotentiaries, “[t]he object of paragraph 2 of article [25] was to enable refugees to procure documents which they would not be able to obtain from the countries which would normally provide them . . . That was a most important provision, and it was therefore right that it should be safeguarded to the greatest possible extent.”2768 The drafters therefore agreed that states should enjoy no latitude to refrain from issuing such documents or certifications as are truly required by a refugee.2769 As the earlier discussion of the beneficiary class of Art. 25 makes clear, it is the responsibility of the refugee’s state of residence to issue these documents, even if they are required by the refugee for purposes outside its borders.2770 2766

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“No difficulties arose in countries of common law, where the affidavit system was applied”: Statement of Mr. van Heuven Goedhart of UNHCR, A/CONF.2/SR.11, July 9, 1951, at 14. As confirmed by the representative of the United Kingdom, Art. 25(2) would “in point of fact have no practical effect in the United Kingdom”: Statement of Mr. Hoare of the United Kingdom, ibid. at 15. He later amplified this position, noting that he “wished to make it clear that the Government of the United Kingdom, where the system envisaged in paragraph 2 of article 25 did not exist, would not interpret the paragraph as mandatory in the sense that it would require the United Kingdom Government to invent and introduce a system for supplying documents of the type which would be supplied by other countries. The United Kingdom Government would, however, render every assistance to refugees by continuing to apply its own system – which was based on the personal affidavit – and to other countries by seeing that documents of that type were duly legalized if required by refugees for transmission to other countries”: Statement of Mr. Hoare of the United Kingdom, UN Doc. A/CONF.2/SR.35, July 25, 1951, at 9. The concern is, of course, documentation related to matters which occurred outside the asylum country. “If an act has taken place in the country of residence, the refugee will be able to get a certificate from the appropriate authority just like anybody else”: GrahlMadsen, Commentary, at 103. Statement of Mr. Herment of Belgium, UN Doc. A/CONF.2/SR.11, July 9, 1951, at 13. Thus, in response to an Austrian amendment which would have made the duty to provide refugees with substitute documentation purely an optional matter, the High Commissioner for Refugees replied that he “would very much regret it if the Conference were to adopt the Austrian amendment, which would so weaken article [25] as to deprive it of all significance”: Statement of Mr. van Heuven Goedhart of UNHCR, ibid. at 14. The Austrian government thereupon withdrew its proposal: ibid. The Chairman of the Ad Hoc Committee, in his capacity as representative of Canada, proposed that the duty under Art. 25(2) should inhere only “as far as possible” or “when possible”: Statement of the Chairman, Mr. Chance of Canada, UN Doc. E/AC.32/SR.19, Feb. 1, 1950, at 7, 8. He subsequently withdrew his suggestions: UN Doc. E/AC.32/SR.25, Feb. 10, 1950, at 8. “If a refugee resident in the territory of country A happened to marry, and so exercised a right in the territory of country B, the question would arise as to which authorities were responsible for giving him the administrative assistance which he required. In the opinion of the Belgian delegation, as expressed in its amendment . . . the responsibility

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What sorts of documentation does Art. 25(2) envisage? A decision was taken not to enumerate specific categories of documents, but rather to leave it to each state to provide refugees with whatever documents are “required in the performance of the acts of civil life.”2771 The list of documents in the Secretary-General’s original draft, itself based on the sorts of documents provided to refugees by international authorities under earlier treaties,2772 was recommended by the drafters as illustrative of the scope of the duty under Art. 25(2).2773 It includes documents certifying “the position” of the refugees or their “family position and civil status,” attestations of “the regularity” of documents issued in the refugee’s home country, certifications to “the good character and conduct of the individual refugee, to his previous record, to his professional qualifications2774 and to his university degrees or academic diplomas,” and even recommendations “with a view to obtaining visas, permits to reside in the country, admission to schools, libraries, etc.”2775 The duty under Art. 25(2) extends to all documents and certifications typically issued “either by the judicial or administrative authorities of [the refugee’s] country of nationality or by its consular authorities,”2776 including those “relating to material and legal rights.”2777 Documents issued pursuant to Art. 25(2) “shall be given credence in the absence of proof to the contrary.”2778 The initial drafts of Art. 25 had been

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should be placed squarely on the authorities of the country of residence”: Statement of Mr. Herment of Belgium, UN Doc. A/CONF.2/SR.11, July 9, 1951, at 13. See text at note 2755. Robinson adds that “[a]lthough par. 3 does not say so, it must be assumed that such documents or certifications are valid in all Contracting States even if delivered by the authorities of one Contracting State (not an international authority). This conclusion is based on the equal force of documents or certifications issued by either the international authority or the local authorities”: Robinson, History, at 132. Statement of Mr. Cuvelier of Belgium, UN Doc. E/AC.32/SR.19, Feb. 1, 1950, at 8. Statement of Mr. Weis of the International Refugee Organization, ibid. at 8. “As an indication of the types of document which refugees may require according to the varying practices of countries, a list is given below. This list is not intended to be exhaustive, nor does it imply that these documents are necessary to refugees in all countries”: Ad Hoc Committee, “First Session Report,” at Annex II. The Chairman of the Ad Hoc Committee also specifically mentioned documentation of “medical proficiency” as an example of the type of documentation within the scope of Art. 25(2): Statement of the Chairman, Mr. Larsen of Denmark, UN Doc. E/AC.32/SR.38, Aug. 17, 1950, at 21. Secretary-General, “Memorandum,” at 43. Ad Hoc Committee, “First Session Report,” at Annex II. Robinson goes farther, arguing that under Art. 25(2) “Contracting States would be called upon to deliver also documents and certifications which are to be supplied by authorities other than those of the country of nationality of the refugee (for instance, if the refugee was born outside the country of his nationality or married there) because in such instances the documents and certifications are usually provided through the authorities of a person’s home country which act[s] as intermediar[y]”: Robinson, History, at 130. Statement of Mr. Fritzer of Austria, UN Doc. A/CONF.2/SR.11, July 9, 1951, at 11. Refugee Convention, at Art. 25(3).

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framed in more emphatic terms. Under the Secretary-General’s draft, “certificates so delivered shall take the place of the original acts and documents and shall be accorded the same validity.”2779 The French proposal went even further, proposing that Art. 25 documents “shall rank as authentic documents and shall take the place of the acts and documents issued in the refugee’s country of origin.”2780 However, as a consensus emerged in the Ad Hoc Committee that even the English affidavit system would meet the requirements of Art. 25(2),2781 the French representative expressed his unwillingness to accept at face value the authenticity of all such documents.2782 The Committee’s conclusions note as well that documents issued under Art. 25 could not really be said to have the same validity as original documents; the point was rather that they were as authentic as the secondary certifications or attestations that would ordinarily be issued to a non-citizen by his or her consular authorities.2783 Thus, “[s]uch documents would be accepted as evidence of the facts or acts certified, in accordance with the laws of the country in which the document is presented.”2784 In positing this clarification, the report notes that “the Committee in no way intended to reduce the value which such documents have under existing arrangements.”2785 This equivocation was nonetheless clearly of concern to the Belgian delegate to the Conference of Plenipotentiaries who introduced the final wording of Art. 25(3). He insisted that the Ad Hoc Committee’s draft should be replaced “by some text easily capable of dispelling any doubts arising out of such documents; that was why [Belgium] had suggested that they should be regarded as authentic in the absence of proof to the contrary.”2786 His proposal was adopted without opposition,2787 in consequence of which the onus must be 2779 2781 2782

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Secretary-General, “Memorandum,” at 43. 2780 France, “Draft Convention,” at 8. See text at note 2766. “[I]n inserting the provision that the certificates delivered should rank as authentic documents, his delegation had intended to give them the highest possible value. On considering the type of certificates envisaged, however, he had come to the conclusion that they could not all rank as authentic documents in the accepted meaning of that term under French law . . . He therefore withdrew the French version of paragraph 3 in favor of the Secretariat draft”: Statement of Mr. Ordonneau of France, UN Doc. E/AC.32/SR.19, Feb. 1, 1950, at 8–9. “The purpose of this clause is to have the Contracting States give documents issued to refugees the same validity as if the documents had been issued by the competent authority of the country of nationality (within the country or by a consular agent abroad) of an alien, or as if the act had been certified by such authority”: Ad Hoc Committee, “First Session Report,” at Annex II. Ibid. 2785 Ibid. Statement of Mr. Herment of Belgium, UN Doc. A/CONF.2/SR.11, July 9, 1951, at 14. Both the representative of Colombia and the High Commissioner for Refugees expressed their support for the Belgian amendment: Statements of Mr. Giraldo-Jaramillo of Colombia and Mr. van Heuven Goedhart of UNHCR, ibid. at 14. The Belgian amendment was adopted without dissent on a 17–0 (5 abstentions) vote: ibid. at 15.

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understood to fall squarely on a government to whom an Art. 25 document is presented to show why it ought not to be relied upon.2788 As Robinson concludes, “such documents or certifications possess a lesser degree of validity than ordinary documents (which is inherent in the circumstance that their delivery is often based on insufficient proofs) and may be annulled or modified by contrary evidence. However, as long as such contrary evidence is not available, the documents and certifications are to serve the same purpose as official instruments of the national authorities.”2789

4.10.2 Access to Courts Despite the importance of each state party’s commitment to provide administrative assistance to refugees, the downside of this approach – as cogently observed by Mr. Herment of Belgium – is that “when the authorities of the receiving country were called upon to consider a complaint or a protest from a refugee, they would always be both judge and party to the dispute.”2790 In view of this potential conflict of interest, it was to be expected that refugees would in at least some instances turn to the courts of a state party to enforce their rights, whether based specifically on Convention entitlements or on Art. 7(1)’s attribution to refugees of the rights inhering in aliens generally.2791 To this end, there was general agreement to adopt Art. 16(1), derived almost literally from the guarantee in both the 1933 and 1938 treaties of “free and ready access to the courts of law”2792 in the territory of any state party.2793 Situations such as that in Georgia – where deficiencies in accessing the general legal system leave refugees with only their own traditional dispute resolution mechanisms2794 – clearly deprive refugees of the intended mechanism to bring Convention rights to bear. Importantly, Art. 16(1) is not limited to a right to access the courts of the country in which the refugee is located.2795 In the words of the President of the 2788

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Lester takes the view that “[s]uch credence is only rebuttable if there is proof, not just evidence, to the contrary”: Lester, “Article 25,” at 1145. Robinson, History, at 132. See also Grahl-Madsen, who notes that “[t]aking into consideration the basis on which the documents . . . often shall have to be issued (corroborated or uncorroborated statements by the persons concerned) it seems that the Conference has made a sound ruling”: Grahl-Madsen, Commentary, at 108. Statement of Mr. Herment of Belgium, UN Doc. A/CONF.2/SR.11, July 9, 1951, at 12. See Chapter 3.2. An American court has, however, ruled in a case brought by a resident refugee against his country of origin that the requirements of the Refugee Convention do not amount to a waiver of foreign sovereign immunity: Peter George Odhiambo v. Republic of Kenya, [2014] WL 4251156 (US CADC, Aug. 29, 2014), at [4]. Ad Hoc Committee, “First Session Report,” at Annex I. This right is, in any event, part of customary international law on the protection of aliens: see Chapter 1.1 at note 7. See text at note 2712. “[D]espite the reference to territory, Art. 16, para. 1 does not require physical presence of the refugee on the territory of the State whose courts he or she wishes to access”:

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Conference of Plenipotentiaries, Art. 16(1) “stipulated that a refugee should not only have free access to the courts in the country where he resided, but to the courts in the territory of all contracting States.”2796 Nor do rights inhere only in refugees once they are granted a right to enter or remain in a given state. To the contrary, the drafting history makes quite clear that Art. 16(1) rights inhere in all refugees, whether or not they have been admitted to a state.2797 As the American representative noted, “persons who had only recently become refugees and therefore had no habitual residence were . . . covered by the provisions of . . . paragraph 1.”2798 Indeed, as the English High Court observed, any other interpretation might well frustrate the essential purposes of the Convention: The use of the word “refugee” [in Art. 16(1)] is apt to include the aspirant, for were that not so, if in fact it had to be established that he did fall within the definition of “refugee” in article 1, he might find that he could have no right of audience before the court because the means of establishing his status would not be available to him.2799

Thus, subject only to the issue of subject-matter jurisdiction noted below,2800 the efforts of an increasing number of countries to deny access to their courts to refugees seeking the review or appeal of a negative assessment of refugee status – for example, the refusal of Canada to allow appeals by claimants from “designated” countries2801 – are prima facie incompatible with Art. 16(1) of the Convention.2802

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B. Elberling, “Article 16,” in A. Zimmermann ed., The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary 931 (2011) (Elberling, “Article 16”), at 938. Statement of the President, Mr. Larsen of Denmark, UN Doc. A/CONF.2/SR.8, July 5, 1951, at 13. The mechanics of this duty were explained in comments by the Israeli representative, Mr. Robinson, ibid. at 12: “Assuming, for instance, that the Governments of the United Kingdom and Yugoslavia were both parties to the Convention, and that a refugee resident in the United Kingdom wished to sue a debtor in Yugoslavia, the legal authorities in the latter country would ask the United Kingdom authorities whether the claimant was a refugee. If the answer was in the affirmative, the problem would be solved for the Yugoslav Court. It seemed to him that the issue was perfectly straightforward.” As framed in the Secretary General’s original proposal, “[r]efugees are to have free access to justice, not only in their own country of residence, but in any other country party to the Convention”: Secretary-General, “Memorandum,” at 30. Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.25, Feb. 10, 1950, at 6. R v. Secretary of State for the Home Department, ex parte Jahangeer et al., [1993] Imm AR 564 (Eng. QBD, June 11, 1993), per Jowitt J. at 566. See text at note 2816. 2801 See text at note 2721. Elberling takes a more benign view of “manifestly unfounded” and “safe country” regimes, suggesting that “generally speaking they can more easily be construed as relating to the specifics of the substance matter and the case at hand and thus falling on the

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Only two, fairly modest, amendments were made to the original proposal for what became Art. 16(1).2803 First, the English-language text was altered to refer only to “free access” to the courts (rather than “free and ready access”) on the grounds that “in English, the words ‘free’ and ‘ready’ were synonymous in the context if used alone, but in conjunction ‘free’ might mean without payment of court fees.”2804 The clear intention, affirmed by the decision not to amend the French-language text (which continues to refer to “libre et facile accès devant les tribunaux”),2805 is that while refugees may be expected to pay the usual fees to access the courts,2806 state parties must not seek in any way to impede their resort to the courts. As Elberling concludes, this duty both “precludes any restrictions that are imposed upon them on account of their refugee status [and] . . . requires some measure of effectiveness of access – where access to court is formally granted, but in fact made impossible by, e.g., overly stringent formal requirements, it cannot be considered ‘free.’”2807 The effective denial of any access to domestic courts by Kenya to refugees living in Kakuma camp2808 was therefore clearly an infringement of Art. 16(1). The second amendment made by the drafters was to vary the title of Art. 16 to the more general “access to the courts,” rather than the arguably more constrained “right to appear before the courts as plaintiff or defendant.”2809 While this change of title does not appear to have been formally debated by the Ad Hoc Committee,2810 the new title nonetheless neatly affirms the ordinary meaning of the language used in Art. 16(1). The provision clearly entitles refugees to engage in private litigation as a means of enforcing their rights – specific reference was made, for example, to the right of refugees to sue for

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‘substantive law/subject-matter side of the . . . divide’”: Elberling, “Article 16,” at 946. While this categorization is of course arguable, subject-matter jurisdiction generally refers to the type of case or controversy at hand, e.g. refugee status assessment or judicial review of detention, rather than to specific rules about how sub-types of such claims are to be addressed. France, “Draft Convention,” at 4. The members of the Ad Hoc Committee preferred this draft to that presented by the Secretary-General: UN Doc. E/AC.32/SR.11, Jan. 25, 1950, at 7–8. Statement of Sir Leslie Brass of the United Kingdom, ibid. at 7. On the motion of the Israeli representative, the English version of Art. 16(1) was amended to meet the British delegate’s concerns, though the French-language text was explicitly left unamended: Statement of Mr. Robinson of Israel, ibid. at 7. The fees assessed may not be higher than those assessed to nationals: Refugee Convention, at Art. 29. Refugees who have established “habitual residence” in a state party may claim the right to dispensation from some of the usual financial barriers to accessing the courts, in particular the duty to post security for costs and to receive legal aid. These matters are addressed by Art. 16(2)–(3) of the Convention: see Chapter 5.5. Elberling, “Article 16,” at 939. 2808 See text at note 2711. France, “Draft Convention,” at 4. The title proposed in the Secretary-General’s draft was even more narrow (“the right to sue and be sued”): Secretary-General, “Memorandum,” at 29. The change first appears in Ad Hoc Committee, “First Session Report,” at Annex I.

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divorce2811 or to recover a debt.2812 But the right of access to the courts is framed as a general right,2813 in no sense limited to access for purposes of launching or defending a civil suit. In principle, Art. 16(1) therefore governs when refugees seek to litigate their Convention or any other rights before domestic courts.2814 The challenge, however, is that Art. 16(1) is only a guarantee that refugees may access whatever judicial remedies exist in the state party. The Refugee Convention does not stipulate the subject-matter jurisdiction of a state’s courts, but requires simply that whenever the courts have competence over a given matter, refugees must have unimpeded access to the courts to enforce relevant claims.2815 As such, where the courts lack subject-matter jurisdiction to entertain claims of the kind being advanced by refugees, Art. 16(1) does not provide a remedy.2816 The failure of laws in Angola2817 and the United States2818 to authorize the judicial review of an administrative decision to detain a refugee claimant thus deprives refugees of the ability to invoke Art. 2811 2812 2813 2814

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Statement of Mr. Larsen of Denmark, UN Doc. E/AC.32/SR.11, Jan. 25, 1950, at 7. Statement of Mr. Robinson of Israel, UN Doc. A/CONF.2/SR.8, July 5, 1951, at 12. Art. 16(1) “applies . . . to any type of legal proceedings”: Elberling, “Article 16,” at 939. In line with the approach, the Court of Justice of the European Union has determined that “the protection inherent in the right to an effective remedy and in the principle of nonrefoulement requires that [an] applicant should have available to him a remedy enabling automatic suspension of enforcement of the measure authorising his removal” in order that he may seek protection “before at least one judicial body”: X v. Netherlands, Dec. No. C-175/17 (CJEU, Sept. 26, 2018), at [32]–[33]. The same court has more recently disallowed the mechanical application of a strict time limit for review of protection requests, insisting on the primary importance of respect for the procedural and substantive requirements of access to effective judicial protection: PG v. Hungary, Dec. No. C-406 (CJEU, Mar. 19, 2020), at [37]; LH v. Hungary, Dec. No. C-564/18 (CJEU, Mar. 19, 2020), at [77]. Cantor goes somewhat farther, suggesting that “Article 16(1) may require that States not withdraw existing rights of access to the courts by putative refugees to challenge negative administrative decisions on refugee status”: D. Cantor, “Reframing Relationships: Revisiting the Procedural Standards for Refugee Status Determination in Light of Recent Human Rights Treaty Body Jurisprudence,” (2015) 34 Refugee Survey Quarterly 79 (Cantor, “Reframing Relationships”), at 85. UNHCR nonetheless significantly overstates the challenge posed by the need to establish subject-matter jurisdiction when it opines that the “[p]rovisions [of the Convention] that define the legal status of refugees and their rights . . . have no influence on the process of determination of refugee status [emphasis added]”: UNHCR, Handbook, at [12(ii)]. UNHCR provides no argument in support of this overly broad position which is, for reasons set out here, at odds with the general ambit of Art. 16(1) of the Convention. At least one court, however, has taken note of UNHCR’s views on this subject: Krishnapillai v. Minister of Citizenship and Immigration, [2002] 3(1) FC 74 (Can. FCA, Dec. 6, 2001), at [26] – though it nonetheless proceeded to analyze whether Canadian refugee procedures met the Art. 16(1) standard: ibid. at [30]–[32]. See also R v. Secretary of State for the Home Department, ex parte Jahangeer et al., [1993] Imm AR 564 (Eng. QBD, June 11, 1993). See text at note 2719. 2818 See text at note 2718.

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16 in aid of any effort to contest their indefinite detention before that country’s courts. On its face, the Civil and Political Covenant might seem to offer relief against this jurisdictional gap. In both criminal proceedings and “in a suit at law,”2819 the second sentence of Art. 14(1) requires that “everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law,”2820 thus effectively setting a duty to make provision for jurisdiction in such cases.2821 The Human Rights Committee has adopted the view that whether a matter is a suit at law giving rise to the entitlement to access to a fair hearing follows from analysis of “the nature of the right in question rather than on the status of one of the parties or the particular forum,”2822 and includes not only the determination of private law rights and obligations, but also “equivalent notions in the area of administrative law”2823 and “other procedures . . . assessed on a case by case basis in the light of the nature of the right in question.”2824 While the case law of the Human Rights Committee is less than clear,2825 the critical question seems to be whether a right, rather than a privilege, is at stake.2826 As such, and because the policies of ongoing detention of refugee claimants by Angola and the United States described above2827 raise issues of clearly protected core liberties, a challenge to those policies should be deemed a suit at law, thus giving rise to an entitlement to a “fair and public hearing by a competent, independent and impartial tribunal established by law”2828 – effectively overriding the failure of domestic law to provide for such a hearing. Whether refugee status assessment is also a suit at law subject to the due process guarantees in the second sentence of Art. 14 has, however, proved more contentious. The traditional position was that they are:

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Civil and Political Covenant, at Art. 14(1). 2820 Ibid. “In certain circumstances the failure of a State party to establish a competent court to determine rights and obligations may amount to a violation of article 14(1)”: Apirana Mahuika et al. v. New Zealand, HRC Comm. No. 547/1993, UN Doc. CCPR/C/70/D/547/ 1993, decided Oct. 27, 2000, at [9.11]. UN Human Rights Committee, “General Comment No. 32: Right to Equality before Courts and Tribunals and to a Fair Trial” (2007), UN Doc. CCPR/C/GC/32, Aug. 23, 2007, at [13]. Ibid. 2824 Ibid. “The cases do not provide clear guidance as to the definition of a ‘suit at law’”: Joseph and Castan, ICCPR, at 439. “[T]he right to access a court or tribunal as provided for by article 14, paragraph 1, second sentence, does not apply where domestic law does not grant any entitlement to the person concerned”: UN Human Rights Committee, “General Comment No. 32: Right to Equality before Courts and Tribunals and to a Fair Trial” (2007), UN Doc. CCPR/C/ GC/32, Aug. 23, 2007, at [17]. See text at notes 2718–2719. Civil and Political Covenant, at Art. 14(1), second sentence.

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Immigration hearings and deportation proceedings may be suits at law. The [UN Human Rights] Committee considered a Salvadoran’s claim that Canada violated his right to a fair hearing in deportation proceedings. Canada argued that deportation proceedings were not suits at law and thus not subject to Article 14(1). The Committee did not accept Canada’s argument and stated explicitly that such proceedings were suits at law.2829

In line with this understanding, as recently as 2006 the Human Rights Committee engaged the merits of a claim that Australia’s Refugee Review Tribunal lacked independence – a claim that would only have been relevant if that tribunal’s refugee status assessments were understood to be “suits at law” subject to the requirements of the second sentence of Art. 14.2830 2829

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UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, “The Right to a Fair Trial: Current Recognition and Measures Necessary for its Strengthening,” UN Doc. E/CN.4/Sub.2/1991/29, July 5, 1991, at [80], citing the decision of the Committee on Human Rights in VMRB v. Canada, decided July 18, 1988, Annex VIII.F. A follow-up report containing a draft Body of Principles to promote the right to a fair trial similarly indicated that because the relevant consideration is “the character of the rights at issue,” the right to a fair trial inheres not just in the context of formal judicial action, but also in “proceedings before administrative tribunals”: UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, UN Doc. E/CN.4/Sub.2/ 1994/24, June 3, 1994, at Annex II, [74(b)]. More generally, the same follow-up report concluded that “[i]f a person’s rights and obligations may be adversely affected in a suit at law or by particularized actions or inactions taken or proposed by a public authority, the court or the public authority shall give the person . . . a fair and public hearing by a competent, independent and impartial tribunal established by law”: ibid. at Annex II, [4]. The expert reports by Special Rapporteurs Chernichenko and Treat were endorsed by the Sub-Commission in Res. 1994/35, Aug. 26, 1994; and subsequently by the Commission on Human Rights, UN Doc. E/CN.4/1997/2, Nov. 25, 1996, at [5]. Olga Dranichnikov v. Australia, HRC Comm. No. 1291/2004, UN Doc. CCPR/C/88/D/ 1291/2004, decided Oct. 20, 2006, at [7.2]. See also Adu v. Canada, HRC Comm. No. 654/ 1995, UN Doc. CCPR/C/60/D/654/1995, decided July 18, 1997, at [6.3]: “The author claims that the hearing was not fair, as one of the two Commissioners who participated was of Ghanaian origin and a member of the Ewe tribe whose hostile attitude towards Ghanaian refugees was said to be well known among members of the Ghanaian community in Montreal. However, neither the author nor his counsel raised objections to the participation of the Commissioner in the hearing until after the author’s application for refugee status had been dismissed despite the fact that the grounds for bias were known to the author and/or his counsel at the beginning of the hearing. The Committee is therefore of the opinion that the author has failed to substantiate, for purposes of admissibility, his claim that his right to a fair hearing by an impartial tribunal was violated.” Similarly, the Committee Against Torture determined in its review of Venezuela’s compliance with that treaty that “[t]he State party should regulate procedures for dealing with and deciding on applications for asylum and refugee status which envisage the opportunity for the applicant to attend a formal hearing and to make such submissions as may be relevant to the right which he invokes, including pertinent evidence, with protection of the characteristics of due process of law”: UN Committee Against Torture, “Concluding Observations on the Report of Venezuela,” UN Doc. A/54/44 (1999), at [147].

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This inclusive approach to understanding a suit at law came to a grinding halt in 2007. In an uncharacteristically opaque new general comment, the Human Rights Committee – despite affirming its traditional view of the basic features of a suit at law requiring access to a fair hearing2831 – opted to treat “extradition, expulsion and deportation procedures” as inherently excluded from the notion of “suits at law.”2832 No reasoning was provided for this volte-face,2833 though a footnote referencing two contemporaneous decisions of the Committee suggests a rather simplistic rationale: because expulsion is governed by Art. 13 of the Covenant, that provision should be treated as the sole source of relevant rights.2834 Subsequent decisions sadly seem to affirm this rationale, finding, for example, in the case of a Pakistani woman alleging risk of sexual assault and murder after she defected from and 2831

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UN Human Rights Committee, “General Comment No. 32: Right to Equality before Courts and Tribunals and to a Fair Trial” (2007), UN Doc. CCPR/C/GC/32, Aug. 23, 2007, at [16]. Ibid. at [17]. See generally Cantor, “Reframing Relationships,” 87. In the much narrower circumstance of a risk to rights guaranteed by Arts. 6 or 7 of the Covenant, there is likely a duty to provide an effective remedy against removal: ibid. at 88. The jurisprudence under Art. 6 of the European Convention on Human Rights may be of influence, as suggested by the government’s submission in Diene Kaba v. Canada, HRC Comm. No. 1465/2006, UN Doc. CCPR/C/98/D/1465/2006, decided May 21, 2010, at [4.12], n. 14. This would be regrettable since the scope of Art. 6 of the regional treaty is much more limited. Rather than governing “suits at law,” it sets due process guarantees only in the context of a “determination of [one’s] civil rights and obligations or of any criminal charge”: European Convention on Human Rights, at Art. 6(1). In the first case cited, it was held that “[i]n the present case, the proceedings relate to the right of the author, who was a lawful permanent resident, to continue residing in the State party’s territory. The Committee considers that proceedings relating to an alien’s expulsion, the guarantees of which are governed by Article 13 of the Covenant, do not also fall within the ambit of a determination of ‘rights and obligations in a suit at law,’ within the meaning of article 14, paragraph 1”: Ernst Zundel v. Canada, HRC Comm. No. 1341/ 2005, UN Doc. CCPR/C/89/D/1341/2005, decided Mar. 20, 2007, at [6.8]. The Zundel decision itself drew only on earlier decisions that a claim for a disability pension (YL v. Canada, 1986) and contesting employment dismissal (Casanovas v. France, 1994) were suits at law, whereas a complaint of failure to confer an academic title (Dimitrov v. Bulgaria, 2005) was not. This dichotomy seems actually to argue against the logic of the Human Rights Committee’s new position, since the cases recognized as suits at law involved contestation about rights whereas the one rejected concerned a situation in which there was “no information before the Committee to show that the author had any right to have the title of professor conferred on him or that the Presidium was under any obligation to endorse his candidature”: Dimitar Atanasov Dimitrov v. Bulgaria, HRC Comm. No. 1030/2001, UN Doc. CCPR/C/85/D/1030/2001, decided Oct. 28, 2005, at [8.3]. Clearly refugee protection (and indeed “extradition, expulsion, and deportation”) involves rights, not just privileges. The second case cited by the Human Rights Committee in support of the new position (Mario Esposito v. Spain, HRC Comm. No. 1359/2005, UN Doc. CCPR/C/89/D/1359/2005, decided Mar. 20, 2007, at [7.6]) actually has no relevance to the shift in understanding of a “suit at law,” but speaks instead to the scope of “determination of a criminal charge.”

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denounced the governing party that “the proceedings relate to the author’s right to receive protection in the State party’s detention. The Committee considers that proceedings relating to an alien’s expulsion, the guarantees in regard to which are governed by article 13 of the Covenant, do not also fall within the ambit of a determination of ‘rights and obligations in a suit at law,’ within the meaning of article 14, paragraph 1.”2835 On the basis of such reasoning, it is, for example, doubtful that Art. 14 could be successfully invoked to contest the refusal of the United States to grant all refugee claimants a full evidentiary hearing on the merits of their claims to withholding of removal.2836 This is a very unfortunate construction of a “suit at law” for a number of reasons. First, the categorical ruling out of all claims concerning extradition, expulsion, and deportation is at odds with the Committee’s own commitment to making the suit at law determination on a “case by case basis in the light of the nature of the right in question.”2837 Second, since extradition, expulsion, and deportation all involve the adjudication of rights that have typically been domesticated in the state party, the Committee’s approach falls afoul of its position that the core attribute of a suit at law is whether “domestic law . . . grant[s] any entitlement to the person concerned,”2838 rather than being simply an issue of privilege or discretion. Third, the Committee does not in other contexts take the view that the fact that a given matter is regulated by one provision of the Covenant means that other provisions are thereby rendered inapplicable; to the contrary, its jurisprudence routinely finds multiple breaches arising from a single set of facts. And fourth and most specifically, even if it is somehow correct that Art. 13 is the only provision of the Covenant governing expulsion procedures, it would still make no sense to rule out all 2835

2836 2837

2838

PK v. Canada, HRC Comm. No. 1234/2003, UN Doc. CCPR/C/89/D/1234/2003, decided Mar. 20, 2007, at [7.5]. See also Arusjak Chadzjian v. Netherlands, HRC Comm. No. 1494/ 2006, UN Doc. CCPR/C/93/D/1494/2006, decided July 22, 2008, at [8.4]; Surinder Kaur v. Canada, HRC Comm. No. 1455/2006, UN Doc. CCPR/C/94/D/1455/2006, decided Oct. 30, 2008, at [7.5]; X v. Denmark, HRC Comm. No. 2007/2010, UN Doc. CCPR/C/110/D/ 2007/2010, decided May 12, 2014, at [8.5]; and Osayi Omo-Amenaghawon v. Denmark, HRC Comm. No. 2288/2013, UN Doc. CCPR/C/114/D/2288/2013, decided Sept. 15, 2015, at [6.4]. See text at note 2717. UN Human Rights Committee, “General Comment No. 32: Right to Equality before Courts and Tribunals and to a Fair Trial” (2007), UN Doc. CCPR/C/GC/32, Aug. 23, 2007, at [16]. UN Human Rights Committee, “General Comment No. 32: Right to Equality before Courts and Tribunals and to a Fair Trial” (2007), UN Doc. CCPR/C/GC/32, Aug. 23, 2007, at [17]. The early jurisprudence of the Human Rights Committee had found, for example, that a claim for a disability pension (YL v. Canada, HRC Comm. No. 112/1981, decided Apr. 8, 1986), an application to dissolve a labor contract (Van Meurs v. Netherlands, HRC Comm. No. 215/1986, decided July 13, 1990), and professional conduct regulation (JL v. Australia, HRC Comm. No. 491/1992, UN Doc. CCPR/C/45/ D/491/1992, decided July 29, 1992) were all suits at law.

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judicial and administrative assistance

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refugee protection claims on this basis:2839 while non-removal is of course a key consequence of refugee status recognition, the bulk of Convention refugee status is addressed to other issues, including in particular access to critical socioeconomic and other rights. It remains, though, that until and unless the Human Rights Committee can be persuaded to revisit its unfortunate understanding of a suit at law, the most critical benefit of Art. 14 of the Covenant – to secure access to a fair and public hearing by a competent, independent and impartial tribunal established by law2840 – is likely to be found inapplicable to refugee status determination.2841 In the result Art. 14 as presently understood provides no basis to contest Canada’s truncated procedures where refugee claims raise national security concerns,2842 or even Australia’s refusal to allow its courts or tribunals any jurisdiction to engage with the claims of refugees under its jurisdiction slated for transfer to Nauru or Papua New Guinea.2843 Equally of concern, the Human Rights Committee’s view of a suit at law under Art. 14 means that refugee status assessment is subject to only the limited guarantees in the first sentence of Art. 142844 which “concern[] access to first instance procedures and do[] not address the issue of the right to appeal or other remedies.”2845 In consequence refugees cannot rely on Art. 14 to 2839

2840 2841

2842 2843

2844

2845

“Overall . . . it is evident that the Committee views refugee status determination as intrinsically related to expulsion”: Cantor, “Reframing Relationships,” at 89. Civil and Political Covenant, at Art. 14(1). In contrast, the Court of Justice of the European Union has affirmed that European Union law requires an oral hearing except in relation to manifestly unfounded cases, i.e. “where the case does not raise any questions of fact or law that cannot be adequately resolved by referring to the file and the written submissions of the parties”: Moussa Sacko v. Italy, Dec. No. C-348/16 (CJEU, July 26, 2017), at [46]–[47]. See text at notes 2715–2716. See text at note 2720. While Elberling suggests that such regimes fall afoul of Art. 16(1) of the Refugee Convention, this view is difficult to reconcile to his (correct) position that under that provision states remain free to determine the subject-matter jurisdiction of their courts: Elberling, “Article 16,” at 944–945. Refugees seeking the fair assessment of their status would still be able to claim the more basic guarantees in the first sentence of Art. 14 (not limited to suits at law and criminal proceedings), at least insofar as they invoke a domestic law that entrusts “a judicial body with a judicial task”: UN Human Rights Committee, “General Comment No. 32: Right to Equality before Courts and Tribunals and to a Fair Trial” (2007), UN Doc. CCPR/C/GC/ 32, Aug. 23, 2007, at [7]. This entitlement is, however, quite basic as it includes only the rights to equal access, equality of arms, and to be treated without discrimination: ibid. at [8]. As Schabas explains, “[t]he right to equality before the courts in the first sentence of Art. 14(1) is a specific manifestation of the general right of equality (Art. 26)”: Schabas, Nowak’s CCPR Commentary, at 353. Insofar as the refugee seeks to resist expulsion (now conceived to include extradition, expulsion, or deportation) the procedural guarantees of Art. 13 analyzed at Chapter 5.1 also apply. UN Human Rights Committee, “General Comment No. 32: Right to Equality before Courts and Tribunals and to a Fair Trial” (2007), UN Doc. CCPR/C/GC/32, Aug. 23, 2007, at [12].

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challenge the European Union rules allowing deportations to proceed before appeals are heard,2846 the British seven-day limit to appeal a fast track decision,2847 or even Hungary’s three-day appeal deadline accompanied by removal to a transit zone.2848 The Human Rights Committee’s position means moreover that the Covenant is now misaligned with the insistence of senior courts that access to a review or appeal of negative refugee status assessments is vital. For example, in considering a challenge to sweeping privative legislation in relation to the review of refugee claims, the High Court of Australia determined that “if read literally, . . . [the new law] would purport to oust the jurisdiction of this court.”2849 In rejecting such an interpretation, the High Court noted that “[i]f tribunals were to be at liberty to exceed their jurisdiction without any check by the courts, the rule of law would be at an end.”2850 Much the same view is reflected in the decision of the European Union to codify the right of refugee claimants to “an effective remedy,” including in particular the right to apply to a court or tribunal to review a refusal or withdrawal of refugee status.2851 Nor is access to the courts by refugees required only to contest a denial of protected status; rather, as the English Court of Appeal has determined, it must be provided whenever Refugee Convention rights are at stake: The Convention requires [state parties] to grant certain rights to refugees, who have fled from their home countries . . . Refugees who arrive in this country are anxious to have their status as refugees established. This is not merely because recognition of their refugee status will carry with it the entitlement to remain here, but because it will ensure they are accorded Convention rights while they are here . . . There is no doubt that this

2846

2847

2848

2849

2850 2851

See text at note 2724. Yet French accelerated “priority” procedures providing for appeals without suspensive effect drew a rebuke from the UN Committee Against Torture: “Concluding Observations by the Committee against Torture – France,” UN Doc. CAT/C/FRA/CO/4–6, May 20, 2010, at [14]; see also AEDH et al., “‘Safe’ Countries: A Denial of the Right to Asylum,” May 2016, at 9–10. See text at note 2723. Yet in declaring the procedure to be ultra vires, the English Court of Appeal found the system “structurally unfair and unjust. The scheme does not adequately take account of the complexity and difficulty of many asylum appeals, the gravity of the issues that are raised by them and the measure of the task that faces legal representatives in taking instructions from their clients who are in detention”: The Lord Chancellor v. Detention Action, [2015] EWCA Civ 840 (Eng. CA, July 29, 2015), at [45]. See text at note 2725. The right to an effective judicial remedy under European Union law is, however, likely infringed where there is a tight deadline of this kind: LH v. Hungary, Dec. No. C-564/18 (CJEU, Mar. 19, 2020), at [73]. S157/2002 v. Commonwealth of Australia, [2003] HCA 2 (Aus. HC, Feb. 4, 2003), per Gleeson C.J. Ibid. EU Procedures Directive (recast), at Art. 46; X v. Netherlands, Dec. No. C-175/17 (CJEU, Sept. 26, 2018), at [32]–[33].

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country is under an obligation under international law to enable those who are in truth refugees to exercise their Convention rights . . . An interpretation of the Rules which permitted the Secretary of State to refuse asylum to a refugee on the ground that he had been granted [permission to remain] would . . . be in conflict with the UK’s obligations under the Convention in relation to the treatment of refugees living within this country.2852

This recognition that there must be an ability to appeal a decision to decline recognition of refugee status may, of course, be subject to a fairly administered requirement to seek leave or permission to present one’s case to a court. As the Canadian Federal Court of Appeal helpfully observed in an analysis of Art. 16 of the Refugee Convention, Article 16 does not define a special procedure nor does it provide for special procedures for refugees. Quite to the contrary: in granting refugees the right to equal treatment before the courts, it implicitly recognizes that refugees are subject to the procedures available in the country in which [they reside]. Article 16 does not impose on the state the obligation to make available to refugees because they are refugees the most favorable procedures that can be put in place. There is no doubt that the right to apply for leave is a right of access to courts. Leave requirement is a usual procedure in Canadian law and it is, in Canadian terms, an accepted form of access to the courts of the country.2853

In sum, Art. 25 of the Refugee Convention requires each state party to establish a mechanism that enables refugees – including those seeking recognition of their status – to access their Convention rights. One aspect of this duty of administrative assistance is to provide refugees with the documentation required both for the vindication of their rights and more generally to engage in civil life. Recognizing that refugees might at times require a means to enforce their claims, Art. 16 of the Refugee Convention further provides that a refugee must be allowed freely to access the courts in the country where he or she is living or in any other state party in order to vindicate rights or to pursue civil suits. This is true, however, only insofar as those courts have relevant subject2852

2853

Saad v. Secretary of State for the Home Department, [2001] EWCA Civ 2008 (Eng. CA, Dec. 19, 2001), per Lord Phillips MR at [1], [2], [11], [65]. Under European Union law, an appeal or review of the denial or withdrawal of refugee status need not be provided “[w]here the subsidiary protection status granted by a Member State offers the same rights and benefits as those offered by the refugee status under Union and national law”: EU Procedures Directive, at Art. 46(2). Reliance on this provision is lawful so long as the rights and benefits “under Union and national law” are in fact no less generous than those which must be provided under the Refugee Convention. Krishnapillai v. Minister of Citizenship and Immigration, [2002] 3(1) FC 74 (Can. FCA, Dec. 6, 2001), at [31]–[32], per Décary J.A.

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matter jurisdiction. This potential jurisdictional deficit may be overcome by invocation of Art. 14(1) of the Civil and Political Covenant insofar as the claim in question is a “suit at law” – likely including, for example, the contestation of matters such as unlawful detention, but – on the basis of recent unfortunate guidance from the Human Rights Committee – likely not the process of refugee status assessment itself or access to a review or appeal of same. Even where a refugee is entitled to access the courts of a state party, the invocation of international legal duties may of course remain a challenge. Most fundamentally, international legal duties may not be directly incorporated into the laws of the state in question; in common law countries, for example, in the absence of domestication of the treaty courts may therefore be able to take account of international law only indirectly by reliance on principles of statutory interpretation. In addition, litigation is often a very expensive process. While the drafters of the Refugee Convention did ultimately agree to help refugees overcome some of the practical impediments to accessing the courts (including by assimilating them to nationals for purposes of the duty to post security for costs, and under legal aid schemes), these more sophisticated rights are reserved for refugees who have established habitual residence in a state party.2854

2854

See Chapter 5.5.

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5 Rights of Refugees Lawfully or Habitually Present

As the degree of attachment between a refugee and a state party increases, so too do the rights which the refugee may claim. All of the rights acquired by simple physical presence – to enter and remain in the asylum state; freedom from arbitrary detention or penalization for illegal entry; protection of physical security; access to the necessities of life; protection of property; respect for family unity; free exercise of thought, conscience, and religion; access to basic education; documentation of identity and status; and to benefit from administrative assistance and access to the courts – continue for the duration of refugee status. But once a refugee is not only in fact under the jurisdiction of a state party to the Convention, but also lawfully present in that country, he or she acquires several additional rights. First, a refugee who is lawfully present enjoys both substantive and procedural protections against expulsion. These guarantees govern any effort to remove the refugee to any country, and are in addition to the right not to be sent to a country in which there is a risk of being persecuted.1 Second, lawfully present refugees enjoy a presumptive right to freedom of internal movement. As previously observed, the Refugee Convention grants states only a limited prerogative to detain a person seeking refugee status until his or her identity is established, basic security concerns are investigated, and the asylum-seeker’s cooperation is secured for purposes of conducting all necessary investigations into his or her claim to protection. Once these concerns have been addressed, the refugee’s presence has been regularized in the receiving state, and refugee-specific restrictions on freedom of movement must come to an end.2 Third and finally, refugees who are lawfully present are explicitly entitled to engage in self-employment. While permission to engage in employment or professional practice may be withheld until the refugee is authorized to remain in the asylum state (for example, consequent to the formal recognition of refugee status), mere lawful presence entitles the refugee to engage in independent income-generating activities. This right is a pragmatic means by which to allow refugees to fund their own necessities of life,3 but without 1

See Chapter 4.1.

2

See Chapter 4.2.4.

3

See Chapter 4.4.

809

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thereby sanctioning integration into the more organized structures of the asylum state’s economic life. In addition to rights that apply once a refugee is lawfully present, two Convention rights – to enjoy protection of intellectual property rights4 and to benefit from assistance to access the courts5 – are framed as inhering in refugees who are “habitually resident” in a state party. The meaning of this term derives from private international law, with a focus on identifying the individual’s center of interests – normally the state where they are presently staying after having claimed refugee status.6 While in theory habitual residence might embrace also refugees who have yet to regularize their status by seeking asylum,7 it is generally agreed that illegality of presence is a strong proxy against a finding of habitual residence.8 As such, habitually present refugees are normally also lawfully present refugees, with the combined notion of lawful or habitual presence fairly describing refugees who are present with the permission or acquiescence of the state but whose refugee status may not yet have been formally recognized. As addressed earlier,9 a refugee is lawfully present in any of three circumstances. First, a refugee is lawfully present for the duration of any period of time for which his or her admission is authorized, even if only for a few hours.10 Second, and of greater contemporary relevance, a refugee is lawfully present while his or her claim to refugee status is being verified, including the time required for exhaustion of any appeals or reviews.11 Third, a refugee is lawfully present if the reception state opts not to verify his or her refugee status, including when formal status determination procedures are suspended in favor of so-called temporary protection regimes.12 It is important briefly to repeat the logic behind this critical third point. Simply put, a government cannot avoid its duty to grant refugees the benefit of rights which accrue upon “lawful presence” by failing to establish a procedure to verify their claims to be refugees.13 While a state may decide that it does not wish, either generally or as an exceptional measure, to engage in formal status assessment, that decision not to authenticate refugee status exists against the backdrop of the government’s legal duty to grant Convention rights to all persons in its territory who are in fact refugees, whether or not their status has 4 6 7

8

9 12

5 Refugee Convention, at Art. 14. Ibid. at Art. 16(2). See Chapter 3.1.3 at note 186. A. Metzger, “Article 14,” in A. Zimmermann ed., The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary 895 (2011) (Metzger, “Article 14”), at 905. B. Rentsch, Der gewöhnliche Aufenthalt im System des Europäischen Kollisionsrechts (2017) (noting that while illegality does not preclude the establishment of habitual residence, it is treated in most European states as a strong proxy against it). See Chapter 3.1.3. 10 Ibid. at note 124 ff. 11 Ibid. at note 129 ff. Ibid. at note 169 ff. 13 Ibid. at notes 173–174.

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been assessed. The nature of those rights increases as the refugee’s attachment to the receiving state increases over time.14 The fundamental expectation that a refugee will either be resettled or have his or her status somehow normalized in the receiving state is particularly clear from the text of Art. 31(2) of the Refugee Convention. This article authorizes host states to impose constraints on a refugee’s freedom of movement only “until their status in the country is regularized or they obtain admission into another country.”15 But if no inquiry is ever undertaken into refugee status, a refugee will never be able to escape what are expressly stated to be purely provisional constraints.16 As such, the state’s legal obligation to implement its treaty duties in good faith can be reconciled to its decision not to assess refugee status only if the latter decision does not prejudice enjoyment by the refugee claimant, at least on a provisional basis, of those rights that require no more than lawful presence. As Grahl-Madsen has explained, It has never been envisaged that there should be any group of underprivileged refugees, subject to the whims of the authorities. Quite to the contrary, so many of the provisions of the Refugee Convention . . . are based on the appreciation of the very special situation of refugees . . . as aliens incapable of gaining admission to any other country than the one in which they find themselves . . . After a time, the humanitarian considerations underlying the Refugee Convention and similar instruments must be held to override other considerations of a more traditional legal nature.17

5.1 Protection from Expulsion During the early part of the twentieth century, refugees allowed to enter an asylum state nonetheless often found themselves vulnerable to expulsion on grounds that they had committed even minor criminal offenses, or were deemed “public charges” because they were unable to meet their own needs due to indigence or ill health. As Grahl-Madsen describes the problem, [I]t became the habit of certain States to expel refugees . . . and to push those so expelled across the frontier to a neighbouring country. This practice caused considerable hardship to the refugees, who were often pushed back and forth between two or more countries and punished each 14 16

17

See generally Chapter 3.1. 15 See Chapter 4.2.4. The logic of this system led the European Court of Human Rights to hold that a person claiming to be a refugee has “the right to gain effective access to the procedure for determining refugee status”: Amuur v. France, [1996] ECHR 25 (ECtHR, June 25, 1996), at [43]. While not technically true, this conclusion would nonetheless be accurate in those states which condition access to refugee rights on a formal process of refugee status determination. A. Grahl-Madsen, The Status of Refugees in International Law (vol. II, 1972) (GrahlMadsen, Status of Refugees II), at 442–443.

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time for illegal entry, but it also caused considerable inconvenience for the countries into whose territory the expelled refugees were sent in the first place. It [was] therefore quite natural that expulsion of refugees became a matter of concern to the international community. The question has been dealt with in all international instruments relating to the status of refugees [since 1928].18

In essence, the concern is that unlike other aliens, refugees subject to expulsion generally have no safe place to go.19 Yet this principled concern has continued to run up against the determination of some states to rid themselves of refugees whose continued presence is adjudged incompatible with their own interests. For example, the United States authorizes the expulsion of aliens, including refugees, on the basis of criminal convictions and outstanding removal orders, including for dated and relatively minor infractions.20 In reliance on this authority, the US government expelled scores of Cambodian refugees;21 the same policy would have seen the return of Burmese and Lao Hmong refugees but for the refusal of their countries of origin to issue the travel documents necessary to facilitate such returns.22 The United Kingdom authorizes the Secretary of State for the Home Department to expel an alien whose continued presence is deemed not conducive to the public good. In reliance on this authority, the British government attempted to force a Saudi asylum-seeker whose activities threatened British commercial interests to accept residence on the Caribbean island of Dominica.23 In 2018, Israel’s top court temporarily halted a covert plan to remove some 40,000 Eritrean and Sudanese refugees to 18

19

20

21

22

23

A. Grahl-Madsen, Commentary on the Refugee Convention 1951 (1963, pub’d. 1997) (Grahl-Madsen, Commentary), at 185–186. The evolution of treaty-based protection against the expulsion of refugees is described in U. Davy, “Article 32,” in A. Zimmermann ed., The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary 1277 (2011) (Davy, “Article 32”), at 1284–1285. Particularly following the issuance of Executive Order 13768, “Enhancing public safety in the interior of the United States,” Jan. 25, 2017, enforcement priorities have shifted to those with traffic offenses, immigration-related offenses such as unlawful entry or reentry, and nonviolent drug offenses such as possession of marijuana: see e.g. American Immigration Council, “Fact Sheet: The End of Immigration Enforcement Priorities under the Trump Administration,” Mar. 7, 2018. K. Yam, “The US Just Quietly Deported the Largest Group of Cambodians Ever,” Huffington Post, Apr. 6, 2018. Burma, Laos, and a host of other “recalcitrant countries,” as they have been labeled under US policy, face increasing pressure in the form of visa sanctions for their refusal to accept persons – including those previously recognized as refugees – the US deems deportable due to criminal convictions: Immigrant Law Center of Minnesota, “Alert to Immigrants from Burma and Laos,” July 12, 2018. “The British government . . . bowed to pressure from the Saudi regime, the United States government and British arms companies when it ordered the deportation of Saudi Arabia’s most prominent dissident to a tiny Caribbean island. Mohammed al-Mas’ari, leader of the influential London-based Islamic opposition group, the Committee for the Defence of

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Uganda and Rwanda, though not before thousands had already been pressured to depart.24 The expulsion of refugees by states of the developed world is at times resorted to as a provisional measure. For example, the United States “remain in Mexico” policy expels refugee claimants to Mexico where they are required to wait there until called for an asylum hearing in the US.25 Most commonly, expulsion from wealthier states occurs under the rubric of the “first country of arrival” regime – for example, the European Union’s Dublin Regulation26 or the Canada–US Agreement.27 Under these systems, refugee claimants are routinely subject to expulsion from the state in which protection is claimed to a partner state deemed responsible to assess status. Alternatively, expulsion may be effected on a more ad hoc basis to a “safe third country” deemed able and willing to afford protection.28 Australia has designed an amalgam of these two approaches in order routinely to expel refugee claimants coming under its maritime jurisdiction to a partner state which, in exchange for often substantial development assistance and other payments, agrees to receive

24

25

26

Legitimate Rights – who last year applied for political asylum in Britain – was given 10 days to appeal against his removal to Dominica . . . Mr. Mas’ari’s removal would be an enormous relief to the Foreign Office, which has found his presence in Britain an embarrassment in relations with Saudi Arabia, a key export market and political ally in the region”: S. Milne and I. Black, “UK Bows to Pressure over Dissident,” Guardian Weekly, Jan. 14, 1996, at 1. But the Chief Immigration Adjudicator overturned the deportation order, citing concerns about his safety in Dominica and the inappropriateness of the government’s decision to refuse to consider his refugee claim: S. Milne, “Mas’ari’s Victory Humiliates Howard,” Guardian Weekly, Mar. 17, 1996, at 9. A. Dahir, “Israel has Halted a Plan to Expel African Migrants – For Now,” Quartz Africa, Mar. 16, 2018; T. Staff, “Outed by Netanyahu as ‘Third-Party Country,’ Rwanda Denies Migrant Agreement,” Times of Israel, Apr. 3, 2018. “Asylum seekers sent to Uganda and Rwanda with Israeli travel documents are not guaranteed legal status there. They receive the Israeli travel documents, valid for three months, at Ben Gurion International Airport, along with a confirmation of their visit. By all accounts, the Israeli travel documents are taken from deported asylum seekers as soon as they arrive at Kigali, Rwanda, or Entebbe, Uganda, by local representatives coordinated by the Israeli Immigration Authority. The fees for two nights’ stay at a local hotel in Uganda are paid for by the State of Israel. After that, the asylum seekers are asked to leave, with no identification documents and no possibility of proving where they have come from. Asylum seekers who arrived in Rwanda recount questionable practices by the representatives receiving them at the airport: They were allegedly required to pay 100 to 150 dollars a night for the two nights at a local hotel, a sum large enough to cover a month’s stay at such an establishment”: Hotline for Refugees and Migrants, “Where there is No Free Will,” Apr. 2015, at 23; see also 24–30. US Department of Homeland Security, “Policy Guidance for Implementation of the Migrant Protection Protocols,” Jan. 25, 2019, www.dhs.gov/sites/default/files/publica tions/19_0129_OPA_migrant-protection-protocols-policy-guidance.pdf, accessed Feb. 25, 2020. By the beginning of 2020, some 60,000 persons had been expelled from the US under this policy: Human Rights Watch, “Q&A: Trump Administration’s ‘Remain in Mexico’ Program,” Jan. 29, 2020. 28 See Chapter 4.1 at note 98. 27 Ibid. at note 100. Ibid. at note 110.

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them.29 While each of these policies has already been considered in detail in relation to the duty of non-refoulement,30 their common core operational mechanism is expulsion. In the less developed world, refugee expulsion is less likely to be carried out under formal legal procedures. For example, many refugees were among the thousands of Rwandans “chased” from Uganda in an outbreak of government-sanctioned anti-Rwandan hostility in 1982–1983.31 Arguing that “Uganda was for Ugandans,” local government officials instigated public antipathy through accusations that Rwandans had displaced locals economically, engaged in cattle thefts, participated in paramilitary groups, and supported anti-government guerrillas.32 In the aftermath of the first Gulf War, Kuwait ordered the expulsion of foreigners from countries deemed sympathetic to Iraq, including Palestinian and Iraqi refugees; it was reported that “even those who were cleared of charges without trial or were acquitted by martial law courts [were] deported.”33 In 2014, Malaysia expelled several ethnic Sri Lankan Tamil refugees on the grounds of alleged ties to the Liberation Tigers of Tamil Eelam (LTTE). They were returned to Sri Lanka on the order of the Inspector General of Police without any evidence having been presented to substantiate the allegations.34 Zambian authorities expelled some thirty-six refugees to the Democratic Republic of Congo following demonstrations over government corruption at the country’s northwestern Meheba camp. In addressing the reasons for this decision, the Refugee Commissioner stated that the deportations “were necessary to guarantee security at Meheba camp, and to ensure that a protesting group of 200 people did not compromise essential services to the 14,000 refugee population.”35 In 2018, Algeria expelled more than 13,000 people over a fourteen-month period to the Sahara Desert.36 Left without food or water and with at least a 15-kilometer trek to the nearest town in Niger, untold numbers perished prior to the policy’s

29 31

32 33

34

35

36

Ibid. at note 114. 30 See Chapter 4.1.2 at note 295 ff. E. Khiddu-Makubuya, International Academy of Comparative Law National Report for Uganda (1994), at 14. Ibid. Middle East Watch, “A Victory Turned Sour: Human Rights in Kuwait Since Liberation” (1991), at 43. Human Rights Watch, “Sri Lanka: Refugees Returned from Malaysia at Grave Risk,” May 27, 2014. According to the same spokesperson, Zambia’s 1970 Refugee Control Act “gives the minister the power to deal with refugees that are believed to [undermine] our quest to host the larger population of refugees . . . particularly if what they are doing is threatening our capacity to provide security for the larger community of refugees”: “Unruly Refugees Sent Home,” IRIN News, Apr. 15, 2010. “Walk or Die: Algeria Abandons 13,000 Refugees in the Sahara,” Al Jazeera, June 25, 2018.

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suspension.37 Jordan engaged in a campaign of collectively and summarily deporting Syrian refugees, generally following detention and questioning by the Mukhabarat security forces.38 Although aid workers believe such actions were motivated by ISIS attacks on security forces, Jordanian authorities “have neither provided evidence that any deportees were involved in any of these attacks nor publicly alleged that they were involved.”39 Officials also did not give an opportunity for those removed to contest their removal or seek legal help.40 Particularly in Africa, the expulsion of refugees is often linked to fear that their presence will embroil the host state in armed conflict. For example, the threat of military attacks from apartheid-era South Africa led some neighboring countries, including Botswana, Mozambique, and Swaziland, to expel South African refugees. As Mtango observed, “because of their inability to defend themselves [from armed attack by South Africa], they [were] inclined instead to return refugees to South Africa or force them to seek resettlement in other countries.”41 In the early months of 2001, Zimbabwean police ordered the expulsion of some thirty Central African refugees suspected of being rebels from the Democratic Republic of Congo sent to assassinate senior Zimbabwean officials, including President Mugabe.42 In 2015, Cameroonian security forces began forcibly expelling Nigerian refugees living along its border on the grounds that they could have ties to Boko Haram, which was responsible for recent suicide bombings and other deadly attacks in the region.43 According to one government spokesperson, the expulsions were “for the 37

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“Migrants filmed videos of themselves fanning out across the open desert, stumbling through heat that reaches above 50 degrees Celsius in the summer as armed Algerian gendarmes ensured they did not turn back. Of the more than two dozen migrants who AP journalists interviewed in Niger, nearly all reported seeing deaths during the forced march, which sometimes lasted days”: “Algeria Halts Refugee Expulsions to Sahara after Outrage,” Al Jazeera, July 13, 2018. B. Finch, “The Case that Exposes Jordan’s Deportation Double Standards,” IRIN News, May 25, 2015. Human Rights Watch, “I have No Idea Why They Sent Us Back: Jordanian Deportations and Expulsions of Syrian Refugees,” Oct. 2, 2017. According to deportees interviewed by Human Rights Watch, those subject to expulsions “were not taken before a judge or any other civil authority prior to being removed, but rather were deported within a day or two of arrest and only after having been interrogated by police and security officials . . . Many of them said that they were completely ignorant of the reasons why they were forcibly returned. ‘Rouqiya,’ a 30-year-old mother of three, ages 6, 7, and 6 months, who struggles with serious health issues, said Jordan deported her in March 2017 while US authorities were still reviewing her eligibility for resettlement. She said that her family was neither informed why they were being deported nor even told that they were being deported”: ibid. E. Mtango, “Military and Armed Attacks on Refugee Camps,” in G. Loescher and L. Monahan eds., Refugees and International Relations 92 (1990), at 95. See also J. Molefi, “Few Safe Havens for Apartheid’s Exiles,” (1984) 29(1) Africa Report 14, at 15. Independent Online (Harare), Feb. 1, 2001. S. Tetchiada, “Nigerians Who Fled Boko Haram Forced Home,” IRIN News, Aug. 21, 2015.

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good of the country.”44 Kenya adopted a similar approach with respect to Somali refugees following attacks on its forces by Somali-linked militants.45 Refugee Convention, Art. 32 Expulsion 1. The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order. 2. The expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due process of law. Except where compelling reasons of national security otherwise require, the refugee shall be allowed to submit evidence to clear himself, and to appeal to and be represented for the purpose before competent authority or a person or persons specially designated by the competent authority. 3. The Contracting States shall allow such a refugee a reasonable period within which to seek legal admission into another country. The Contracting States reserve the right to apply during that period such internal measures as they may deem necessary. Civil and Political Covenant, Art. 13 An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority. When a refugee first arrives in search of protection, he or she enjoys only a limited right to be protected from expulsion.46 At this stage, the main 44

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“We are protecting ourselves . . . We are preventing penetration into our territory of anyone who does not inspire confidence in us. If, within our territory, we realize that there are accomplices, disguised as Boko Haram, our responsibility is to send them back to their own country”: ibid. H. Malalo, “Kenya Deports Somalis, Arrests Hundreds in Crackdown after Attacks,” Reuters, Apr. 9, 2014; see also Human Rights Watch, “Kenya: Mass Deportation of Somalis: 359 Deported without Access to Lawyers, Court, UN Refugee Agency,” May 23, 2014. Davy notes that “[i]nternational law usually just adopts the English and French term ‘expulsion,’ leaving it to the interpreter to infer its main elements from context. International refugee law is no exception”: Davy, “Article 32,” at 1307. She posits “three features” of expulsion: an administrative or judicial decision; not including the enforcement of the decision; and not including simplified removal procedures: ibid. at 1307–1308. This seems quite a narrow definition, contrasting for example with the view of the UN Human Rights Committee that expulsion includes “all procedures aimed at the obligatory departure of an alien, whether described in national law as expulsion or otherwise”: UN Human Rights Committee, “General

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safeguard is the duty of non-refoulement set by Art. 33. As previously analyzed in depth,47 this means that there must be no real chance that the expulsion will lead, directly or indirectly, to the refugee being returned to the risk of being persecuted – a clear problem for the American “remain in Mexico policy”48 since “approximately 1 out of every 3 asylum seekers returned to Mexico . . . will likely be threatened with violence while waiting in Mexico before they make it to their immigration court dates.”49 Beyond this inquiry, expulsion prior to lawful presence is constrained only by the general duty under international law to avoid stripping the refugee of his or her acquired rights50 and by the obligation not to aid or assist the destination country to breach its international legal duties.51 So long as these requirements are met, a state party may expel a refugee claimant from its territory during the very earliest phases of refugee reception.52 This is because the more general duty to avoid expulsion only arises once the refugee claimant is “lawfully present” in a state party.53 As explained by the UK Supreme Court, Every refugee has the protection of article 33. The protection of article 32 is more generous. Its effect is that, once a refugee has been admitted or his presence has been legalised and so long as entitlement to refugee status continues, he is entitled to stay indefinitely in the receiving state. He can only forfeit that right by becoming a risk to national security or by disturbing the public order. But he requires to have been afforded a certain degree of attachment to the receiving state before this privilege becomes available.54

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Comment No. 15: The Position of Aliens under the Covenant” (1986), UN Doc. HRI/GEN/1/ Rev.7, May 12, 2004, at [9]. The International Law Commission adopts a similar view, defining expulsion as simply “a formal act or conduct attributable to a State, by which an alien is compelled to leave the territory of that State”: International Law Commission, “Draft Articles on the Expulsion of Aliens,” [2014] 2(2) Yearbook of the International Law Commission, at Art. 2(a). In line with these views, Weis encourages a consequence-driven understanding, opining that “[e]xpulsion means any measure which obliges the refugee to leave the territory of a Contracting State, for instance, a residence ban”: P. Weis, The Refugee Convention, 1951: The Travaux Préparatoires Analysed with a Commentary by Dr. Paul Weis (posthumously pub’d., 1995) (Weis, Travaux), at 322. See Chapter 4.1. 48 See text at note 25. UC San Diego News Center, “‘Remain in Mexico’ Asylum Seekers Face Numerous Risks,” Oct. 29, 2019, ucsdnews.ucsd.edu/pressrelease/remain-in-mexico-asylum-seekers-facenumerous-risks, accessed Feb. 25, 2020. See text at note 71. 51 See text at note 104. 52 See Chapter 4.2.3. See text at note 114. R (ST, Eritrea) v. Secretary of State for the Home Department, [2012] UKSC 12 (UK SC, Mar. 21, 2012), at [1]. The views of the Supreme Court on the precise meaning of lawful presence are, however, more contentious: see Chapter 3.1.3 at note 144 ff.

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5.1.1 Constraints before Lawful Presence In principle, then, an expulsion decision taken before lawful presence is established55 – for example, as part of an admissibility inquiry under first country of arrival regimes such as the EU’s Dublin Regulation56 and the Canada–US Agreement,57 or by reliance on a safe third country arrangement such as those Australia has negotiated with Nauru and other neighboring states58 – is lawful so long as it respects the duty of non-refoulement and does not strip the refugee claimant of such international rights as he or she may already have provisionally acquired or aid or assist the destination country to breach such rights as remain inchoate.59 The duties of non-refoulement and non-expulsion were never conceived as mutually exclusive;60 indeed, they were originally proposed as two aspects of a common obligation.61 Thus, in describing the protection that refugees lawfully 55

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The drafters recognized that refugees who travel without pre-authorization to a state party, but who are admitted to a process intended to assess their suitability for admission to that state, should “be considered, for purposes of the future convention, to have been regularly admitted”: Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.15, Jan. 27, 1950, at 20. Referring to this drafting history, UNHCR helpfully observes that “[w]hilst the term ‘regularly admitted’ did not eventually find its way into the 1951 Convention it informed the concept of ‘lawfully in’”: UNHCR, Handbook on Protection of Stateless Persons (2014), at 48, n. 81. Thus, “[g]iven the declaratory nature of refugee status, Article 32 is . . . applicable to asylum-seekers, including those who have entered the country illegally but have since entered the asylum procedures and may therefore be considered as ‘authorized’ to be present in the territory of the country and lawfully therein”: UNHCR, “Response to the Constitutional Court of Ecuador query regarding International Treaty No. 0030-13-TI,” Apr. 17, 2015, at 8; see also UNHCR, “Observations on the proposed amendments to the Danish Aliens legislation,” Oct. 31, 2016, at 3. See generally Chapter 3.1.3. 58 See Chapter 4.1 at notes 98–99. 57 Ibid. at note 100. Ibid. at note 83. See also the discussion of the consonance of such regimes with the duty of non-refoulement at Chapter 4.1. This is not to say, however, that the two duties are the same. As the International Law Commission has correctly insisted, the non-admission of an alien to a state is one of three exclusions from the general notion of expulsion as “a formal act or conduct attributable to a State, by which an alien is compelled to leave the territory of that State”: International Law Commission, “Draft Articles on the Expulsion of Aliens,” [2014] 2(2) Yearbook of the International Law Commission, at Art. 2(a). This point was acknowledged in ND and NT v. Spain, Dec. Nos. 8675/15 and 8697/15 (ECtHR, Feb. 13, 2020), at [174]. See United Nations, “Memorandum by the Secretary-General to the Ad Hoc Committee on Statelessness and Related Problems,” UN Doc. E/AC.32/2, Jan. 3, 1950 (Secretary-General, “Memorandum”), at 45. This approach was modeled on Art. 3 of the 1933 Convention, under which each state party agreed to protect refugees against efforts “to remove or keep [them] from its territory by application of police measures, such as expulsion or non-admittance at the frontier (refoulement)”: Convention relating to the International Status of Refugees, 159 LNTS 3663, done Oct. 28, 1933, entered into force June 13, 1935 (1933 Refugee Convention). The decision to separate the duties of non-refoulement and non-expulsion into separate articles was reached by the Ad Hoc Committee without clear explanation. It may, however, have followed from the decision to broaden the class of persons entitled to protection against refoulement to

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present would receive by virtue of Art. 32’s protection against expulsion, the American representative referred to it as a “supplement” to the duty of nonrefoulement.62 Israel similarly insisted that the foundation for discussion of the duty of non-expulsion was that “[t]he Committee had already settled the humanitarian question of sending any refugee whatever back to a territory where his life or liberty might be in danger.”63 The official comments of states on the Ad Hoc Committee’s draft are equally clear. Both the Chilean and British governments argued for a generous interpretation of the scope of permissible expulsion precisely because the duty of non-refoulement had already limited their removal options.64 And perhaps most emphatically, the Canadian representative to the Conference of Plenipotentiaries (and former chairman of the Ad Hoc Committee) affirmed that “the exercise of [expulsion] powers would be tempered with compassion, and never be at variance with the spirit of the Convention or with the terms of article [33], which related to the prohibition of expulsion to territories where the life or freedom of a refugee was threatened.”65 Because the duty of nonrefoulement is not displaced once a refugee is lawfully present in a state party, even a state which has entered a reservation to Art. 32 cannot expel a refugee without consideration of the consequences of that act. Thus, while Uganda’s purported reservation of its “unfettered right to expel any refugee in [its] territory” means

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encompass all refugees, including those not yet admitted to an asylum country (in contrast to the more limited beneficiary class for protection against expulsion): see “Report of the Ad Hoc Committee on Statelessness and Related Problems,” UN Doc. E/1618, Feb. 17, 1950 (Ad Hoc Committee, “First Session Report”), at Annex II. The British representative, for example, had made clear that “the notion of refoulement could apply to (a) refugees seeking admission, (b) refugees illegally present in a country, and (c) refugees admitted temporarily or conditionally”: Statement of Sir Leslie Brass of the United Kingdom, Doc. E/AC.32/SR.21, Feb. 2, 1950, at 5. Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.20, Feb. 1, 1950, at 12. “Whatever the case might be, whether or not the refugee was in a regular position, he must not be turned back to a country where his life or freedom could be threatened. No consideration of public order should be allowed to overrule that guarantee, for if the State concerned wished to get rid of the refugee at all costs, it could send him to another country or place him in an internment camp”: ibid. Statement of Mr. Robinson of Israel, ibid. at 13. See also Statement of Mr. Guerreiro of Brazil, UN Doc. E/AC.32/SR.21, Feb. 2, 1950, at 7, who felt that amendment of Art. 32 to establish protections against expulsion was not necessary because the duty of nonrefoulement “covered the fundamental aspect of the problem and its provisions were applicable to all refugees.” “It should also be taken into consideration that Article [33] limits the countries to which the expelled person may be sent, since it provides, and rightly so, that he may not be expelled to countries where he might be persecuted for political, social, or religious reasons”: United Nations, “Compilation of the Comments of Governments and Specialized Agencies on the Report of the Ad Hoc Committee on Statelessness and Related Problems,” UN Doc. E/ AC.32/L.40, Aug. 10, 1950 (United Nations, “Compilation of Comments”), at 55 (Chile). See also comments of the British government, which made clear that it sought greater operational flexibility in relation to expulsion only “[i]n any case where a refugee is returnable to a country where he has no reason to fear persecution”: ibid. at 57. Statement of Mr. Chance of Canada, UN Doc. A/CONF.2/SR.15, July 11, 1951, at 8.

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that it did not violate Art. 32 when it “chased” Rwandans back to their country of origin, its actions were nonetheless in breach of Art. 33.66 While the duty of non-refoulement is the core constraint on a state’s right to expel a refugee before lawful presence is established, it is not the only limitation.67 Just as a refugee claimant is entitled to invoke Art. 33 because it is a protection the benefit of which has already accrued to the refugee claimant under the jurisdiction (and normally also within the territory) of the state party concerned,68 so too the exercise of jurisdiction or fact of simple territorial presence makes the refugee claimant also the provisional holder of a number of other Convention rights.69 Specifically, even before lawful presence is established the refugee claimant also benefits from Arts. 3 (non-discrimination), 4 (religious freedom), 12 (respect for personal status), 13 (preservation of property rights), 16(1) (access to the courts), 20 (access to rationing systems), 22 (primary education), 25 (access to administrative assistance), 27 (identity papers), 29 (fiscal equity), 31 (non-penalization for illegal entry and freedom from arbitrary detention), and 34 (consideration for naturalization).70 These basic refugee rights, just like the duty of non-refoulement, are owed until and unless a final decision is made that refugee status is not warranted on the facts of the case. As such, there is no legal basis to distinguish the right of a refugee to claim the benefit of Art. 33 from his or her right to benefit from the protection of Arts. 3, 4, 12, 13, 16(1), 20, 22, 25, 27, 29, 31, and 34. As acquired rights, the state that wishes to 66

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This is in fact acknowledged in the text of Uganda’s reservation, which provides that “[w]ithout recourse to legal process the Government of the Republic of Uganda shall, in the public interest, have the unfettered right to expel any refugee in her territory and may at any time apply such internal measures as the Government may deem necessary in the circumstances; so however that, any action taken by the Government of the Republic of Uganda in this regard shall not operate to the prejudice of the provisions of article 33 of this Convention”: https:// treaties.un.org, accessed Dec. 21, 2020. Blay and Tsamenyi argue further that summary expulsion by Uganda violated Art. 16(1) of the Convention requiring that refugees have access to the courts of law of all state parties: S. Blay and M. Tsamenyi, “Reservations and Declarations under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees,” (1990) 2(4) International Journal of Refugee Law 527 (Blay and Tsamenyi, “Reservations”), at 544–545. As such, the plea to interpret the beneficiary class for Art. 32 rights narrowly in order to facilitate “compulsory secondary movement” is unlikely to be productive. But see Y. Livnat, “Compulsory Secondary Movement and Article 32 of the Refugee Convention,” reflaw.org, Aug. 28, 2019. See Chapter 4.1.1. As earlier analyzed (see Chapter 3.1), refugee status determination does not make a person a refugee. Rather, positive assessment by a state party simply confirms the status already held by a person who meets the requirements of the refugee definition. Because the text of the Convention expressly guarantees some rights even before refugee status assessment, persons who have claimed refugee status, including those being considered for removal to a third state that will consider their protection needs, are provisional rights-holders. While not yet lawfully present in any country, they are both under a state party’s jurisdiction and physically present within its territory. See generally Chapter 4.

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expel the refugee to another country has a duty of “anxious scrutiny”71 to avoid rights-stripping, ensuring that each of these entitlements is honored upon arrival in the destination country – not just that there is protection against the risk of refoulement there.72 Thus in response to the Australian government’s claim that it had no “protection obligations” to refugees slated for removal to a country in which they would not be exposed to a risk of refoulement, the High Court of Australia demurred: Counsel for the Minister submits that the Minister has no “protection obligation” in the nature of providing asylum to the appellants because the implication of that positive obligation does not flow from Art. 33(1) . . . [However] . . . a perusal of the Convention shows that, Art. 33 apart, there is a range of requirements imposed upon Contracting States with respect to refugees some of which can fairly be characterised as “protection obligations.”73

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R (Yogathas) v. Secretary of State for the Home Department, [2003] 1 AC 920 (UK HL, Oct. 17, 2002), at [58], per Lord Hope. In the view of Judge Weeramantry of the International Court of Justice, there is support for a broad theory mandating respect for acquired rights. “Another possible line of enquiry . . . is the analogy between a treaty vesting human rights, and a dispositive treaty vesting property rights. From the time of Vattel, such a dispositive treaty, as for example a treaty recognizing a servitude, has been looked upon as vesting rights irrevocably in the party to whom they were granted; and those rights, once vested, could not be taken away. Perhaps in comparable fashion, human rights, once granted, become vested in the persons enjoying them in a manner comparable, in their irrevocable character, to vested rights in a dispositive treaty”: Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections, [1996] ICJ Rep 595 (ICJ, July 11, 1996), at 652 (Judge Weeramantry). The duty to respect acquired rights has been most thoroughly adumbrated in the context of a change of sovereignty: see R. Mullerson, “The Continuity and Succession of States, by Reference to the Former USSR and Yugoslavia,” (1993) 42 International and Comparative Law Quarterly 473, at 490; Human Rights Committee Decision on State Succession to the Obligations of the Former Yugoslavia under the International Covenant on Civil and Political Rights, (1993) 15 EHRR 233; UN Commission on Human Rights, “Succession of States in respect of International Human Rights Treaties,” UN Doc. E/CN.4/1995/80 (Nov. 28, 1994), at 3. NAGV and NAGW of 2002 v. Minister for Immigration and Multicultural and Indigenous Affairs, [2005] HCA 6 (Aus. HC, Mar. 2, 2005), at [27]–[31], per Gleeson C.J., McHugh, Gummow, Hayne, Callinan, and Heydon JJ. Unfortunately, the High Court proceeds to identify three “examples” of “protection obligations” in the treaty, thereby giving unwarranted credence to the view that some Convention duties are not to be understood as “protection obligations”: ibid. at [31]. But as the Preamble to the Convention itself makes clear, the Convention as a whole is a means “to revise and consolidate previous international agreements relating to the status of refugees and to extend the scope of and protection accorded by such instruments”: Refugee Convention, Preamble, at [3]. There is thus no division in the Convention between “protection” and “other” obligations.

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This recognition that international refugee law obligations are in no sense limited to ensuring respect for the duty of non-refoulement74 was elaborated by the same court in the context of a challenge to legislation authorizing the blanket transfer of refugee claimants to a country deemed safe.75 Rejecting the Australian government’s assertion that refugees could be forcibly transferred to Malaysia by reference only to the fact that they would be immune from refoulement there, the court observed that if that construction were adopted, the transferred refugee may have none of the other rights which Australia is bound to accord to persons found to be refugees . . . Thus when [the Act] speaks of a country that “provides protection . . . ” it refers to provision of protections of all the kinds which parties to the Refugees Convention and the Refugees Protocol are bound to provide to such persons. Those protections include, but are not limited to, protection against refoulement.76

While declining to specify the precise content of requisite protection, the High Court noted in particular that attention must be paid to the existence in the destination country of legally binding protection against discrimination, and of affirmative protection of religious freedom, access to the courts, entitlement to engage in wage-earning employment, access to primary education, and freedom of internal movement.77 The Australian High Court’s clear insistence that expulsion be conditioned on more than just compliance with the duty of non-refoulement is mirrored in European human rights jurisprudence. Rejecting a narrow78 approach, a Grand 74

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“[T]he protection obligations imposed by the Convention upon Contracting States concern the status and civil rights to be afforded to refugees who are within Contracting States”: Minister for Immigration and Multicultural Affairs v. Khawar, [2002] HCA 14 (Aus. HC, Apr. 11, 2002), at [42], per McHugh and Gummow JJ. “[N]on-refoulement constitutes part only of the benefits attaching to refugee status and . . . [is] the part presently least important to these applicants who cannot be removed anyway. Their concern rather is not to remain here in limbo – without benefits, without security, unable to travel, unable to bring in their families – but instead to enjoy the specific advantages to which refugees are entitled under both international and domestic law. They seek, in essence, the protection of this country and a new home here”: Adan v. Secretary of State for the Home Department, [1997] 1 WLR 1107 (Eng. CA, Feb. 13, 1997), at 1116, per Simon Brown L.J. See also K. Hailbronner, “The Concept of ‘Safe Country’ and Expeditious Asylum Procedures: A Western European Perspective,” (1993) 5 International Journal of Refugee Law 31, at 59: “A casual connection with a country that respects the principle of refoulement and does not persecute the asylum seeker is not usually considered as adequate protection.” Migration Act 1958 (Cth), s. 198(A), introduced by the 2001 Excision Consequential Provisions Act, July 25, 2011. Plaintiff M70/2011 v. Minister for Immigration and Citizenship, [2011] HCA 32 (Aus. HC, Aug. 31, 2011), at [119], per Gummow, Hayne, Crennan, and Bell JJ. Ibid., at [117], per Gummow, Hayne, Crennan, and Bell JJ. For example, responding to evidence that a refugee claimant returned to Italy would face “destitution and homelessness” an English court observed that “there is no general right to

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Chamber of the European Court of Human Rights ruled in 2011 that Belgium was prohibited from returning an Afghan refugee claimant to Greece – his “first country of arrival” in Europe. The Court determined inter alia that the state of extreme poverty to which refugees were subjected in Greece amounted to inhuman or degrading treatment, thus imposing a bar to transfers to that country.79 Later that same year, the Court of Justice of the European Union reached much the same conclusion, finding that evidence of risk in a partner state amounting to torture or inhuman or degrading treatment or punishment would preclude removal to a partner state80 – a standard more recently said might be met even where appropriate medical treatment for acute illness is not available in the destination state.81 These judgments signal that the duty to scrutinize the realities of protection in a partner state is not to be narrowly conceived. Indeed, civil law courts in Europe have explicitly acknowledged that the Refugee Convention itself imposes a duty to consider more than simply the risk of refoulement. The French Conseil d’État, for example, invoked the Refugee Convention and Protocol to prevent the return of a refugee family to Greece, their country of first arrival. Noting specifically that evidence of the conditions to which the family was subjected upon arrival in Greece failed to meet “the guarantees required by asylum law,” and that return to Greece would therefore

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accommodation or a minimum standard of living that can be drawn from the [European Convention for the Protection of Human Rights] or the Directives, or from elsewhere in the European or our domestic human rights, social or other legislation. The setting of such a minimum standard – no matter how low – is a matter for social legislation, not the courts. Therefore, given that the claimant’s case is based upon the premise that there is a risk that, if returned to Italy, ‘he will be destitute and homeless on the street,’ a cautious approach is required by this court to ensure that it does not inappropriately encroach into areas reserved to the political decision of the executive government”: R (EW) v. Secretary of State for the Home Department, [2009] EWHC 2957 (Eng. HC, Nov. 18, 2009), at [23], per Hickinbottom J. MSS v. Belgium and Greece, (2011) 53 EHRR 28 (ECtHR, Jan. 21, 2011). NS v. Secretary of State for the Home Department, Dec. Nos. C-411/10 and C-493/10 (CJEU, Dec. 21, 2011). While the court determined that there could be a presumption that partner states would honor their legal obligations to refugees sent to them (at [84]), it nonetheless found that awareness of systemic deficiencies that amount to substantial grounds for believing that conditions in the partner state amount to violation of Art. 4 of the European Charter of Fundamental Rights (which prohibits torture or inhuman or degrading treatment or punishment) rebutted that presumption: at [94]. Regrettably, the court did not take the opportunity to determine whether a broader range of legal constraints also governs removal to a partner state. In particular, the right to asylum guaranteed by Art. 18 of the European Charter providing that “[t]he right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees” provides a clear basis for conditioning removal on compliance with the duties assumed under Arts. 2–34 of the Refugee Convention, not just on risk of torture or inhuman or degrading treatment or punishment: Charter of Fundamental Rights of the European Union, OJ 2000 C326/02 (Dec. 7, 2000), at Art. 18. CK v. Slovenia, Dec. No. C-578/16PPU (CJEU, Feb. 16, 2017), at [72].

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pose the risk of “a grave and manifestly unlawful deprivation of the fundamental liberty that comprises the right to asylum,” the court refused to sanction the family’s removal.82 A German court similarly overturned a removal order made against an Iranian refugee who had arrived in Germany via Greece. Observing that returns under the Dublin Regulation are contingent on respect by the destination country for the “right to asylum binding on all member states,” the court required the government to exercise its discretion to withhold removal in view of the failure of Greece to meet regional standards for processing and reception of refugee claimants,83 which standards are expressly to be interpreted in line with international refugee law requirements.84 This robust approach to scrutiny of even pre-admissibility expulsion is in keeping with the approach recommended by the UNHCR’s Executive Committee. In its Conclusion No. 85,85 the Executive Committee noted that [a]s regards the return to a third country of an asylum-seeker whose claim has yet to be determined from the territory of the country where the claim has been submitted, including pursuant to bilateral or multilateral readmission agreements, it should be established that the third country will treat the asylum-seeker (asylum-seekers) in accordance with accepted international standards, will ensure effective protection against 82 83

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Dec. 339478 (Fr. CE [French Council of State], May 20, 2010) (unofficial translation). Transfer of Asylum Applicants to Greece, [2009] BeckRS 36287 (Ger. AC, Frankfurt-amMain, July 8, 2009) (unofficial translation). The English High Court’s criticism of this decision – that it “seems to reason from ‘a right to asylum binding [on] all Member States . . . ’ [that] cannot constitute a basis for reasoning in this type of case since the Dublin Regulation is expressly drafted on the basis of that right” (R (Saeedi) v. Secretary of State for the Home Department, [2010] EWHC 705 (Eng. HC, Mar. 31, 2010), at [154], per Cranston J.) – is not sound. The Dublin Regulation is subordinate to international refugee law obligations, but was not intended to implement the whole of those obligations. To the contrary, the Dublin Regulation is directed only to the process by which an allocation of refugee protection responsibilities is to occur, and does not address at all the core questions of qualification for status or the rights of persons who are refugees. The judgment of the German court appropriately recognizes that the Dublin Regulation cannot operate in a way that breaches these binding norms of international refugee law. “The Union shall develop a common policy on asylum, subsidiary protection and temporary protection with a view to offering appropriate status to any third-country national requiring international protection and ensuring compliance with the principle of nonrefoulement. This policy must be in accordance with the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees, and other relevant treaties”: Treaty on the Functioning of the European Union, adopted Feb. 7, 1992, entered into force Nov. 1, 1993, OJ 2010 C83/47, at Art. 78(1) (emphasis added). The Court of Justice of the European Union has affirmed that the Refugee Convention is the cornerstone of regional refugee protection norms, and that the regional regime must be implemented in line with requirements of the Refugee Convention: see Chapter 1.5.3 at note 290. UNHCR Executive Committee Conclusion No. 85 (XLIX), “Conclusion on International Protection,” UN Doc. A/53/12/Add.1 (Oct. 9, 1998). The legal status of Executive Committee Conclusions is discussed at Chapter 1.5.2.

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refoulement, and will provide the asylum-seeker (asylum-seekers) with the possibility to seek and enjoy asylum.86

This view aligns with the Executive Committee’s traditional insistence on the importance of states having a duty to ensure “that persons who are in need of international protection actually receive it.”87 Perhaps most important, Conclusion No. 85 makes absolutely clear that the scrutiny of circumstances in the destination country may not be restricted to whether there is a risk of refoulement there; it must also evaluate whether that country “will provide the asylum-seeker (asylum-seekers) with the possibility to seek and enjoy asylum.”88 Access to “asylum,” defined to include “the obligation to treat asylum-seekers and refugees in accordance with applicable human rights and refugee law standards as set out in relevant international instruments,”89 is thus as relevant as the basic question of whether there is a risk of removal to persecution. Both Executive Committee guidance and the emerging national and regional jurisprudence thus affirm the balance struck in the Convention between permissible expulsion prior to lawful presence and the treaty’s commitment to provisional rights acquisition prior to formal status assessment. Nothing in the Refugee Convention authorizes rights deprivation in pursuit of a refugee responsibility-sharing or any expulsion.90 Indeed, the notion that states may expel refugees at will, thereby stripping them of rights already acquired, is manifestly incompatible with the duty to apply the Refugee Convention in a way that ensures its effectiveness.91 While the Convention does not impose obligations on states to deliver rights to refugees in the abstract, state parties have assumed obligations to refugees with whom they have a connection, in some cases based 86 87

88

89

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Ibid. at [(aa)]. UNHCR Executive Committee Conclusion No. 74 (LXV), “General Conclusion on International Protection,” UN Doc. A/49/12/Add.1, Oct. 7, 1994, at [(p)]. UNHCR Executive Committee Conclusion No. 85 (XLIX), “Conclusion on International Protection,” UN Doc. A/53/12/Add.1 (Oct. 9, 1998), at [(aa)] (emphasis added). UNHCR Executive Committee Conclusion No. 82 (XLVIII), “Safeguarding Asylum,” UN Doc. A/52/12/Add.1 (Oct. 17, 1997), at [(d)(vi)]. “Because there is nothing in the Convention, either expressly or by implication, to remove . . . protection obligations with respect to the appellants . . . in circumstances where, although the Convention is engaged in the State to which the applicant has had recourse, the applicant might have obtained protection elsewhere, such obligations continue to exist”: NAGV and NAGW of 2002 v. Minister for Immigration and Multicultural and Indigenous Affairs, [2005] HCA 6 (Aus. HC, Mar. 2, 2005), at [90], per Kirby J. The duty to ensure a treaty’s effectiveness derives from the more general obligation of good faith treaty interpretation: M. Bos, “Theory and Practice of Treaty Interpretation,” (1980) 27 Netherlands International Law Review 135, at 150. As observed by Judge Lauterpacht, “[t]he preponderant practice of the Court itself has . . . been based on principles of interpretation which render the treaty effective rather than ineffective. These principles are not easily reconcilable with restrictive interpretation conceived as the governing rule of construction”: H. Lauterpacht, The Development of International Law by the International Court (1958), at 305. See generally C. Tomuschat, Human Rights: Between Idealism and Realism (2003), at 104.

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simply on their exercise of jurisdiction. If it were possible to circumvent the considerable range of obligations imposed on state parties by the simple expedient of transferring a refugee to another state, this would defeat the very raison d’être of the Convention. As cogently observed by the Full Federal Court of Australia, [t]he Convention does not provide that the incurring of obligations to a refugee to whom the Convention applies is at the option or discretion of a Contracting State and nor does it provide that a Contracting State will not incur obligations to a refugee under the Convention if the refugee has had, or has, the opportunity to seek protection from another country or Contracting State.92

It is important to emphasize, however, that the duty to ensure respect for acquired rights is not tantamount to conditioning removal on evidence that the refugee would enjoy the same overall quality of life in the destination country as in the sending state. This distinction has not always been clearly understood by courts.93 For example, in the decision of Januzi94 the House of Lords mistakenly assumed that assessment of respect for refugee rights in a destination state entails a comparison of the quality of life in the sending and destination countries.95 This is not so: the measure of respect for each right 92

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WAGH v. Minister for Immigration and Multicultural and Indigenous Affairs, (2003) 131 FCR 269 (Aus. FFC, Aug. 27, 2003), at [25]. As early as 2002, the House of Lords expressed the view that “the Convention is directed to a very important but very simple and very practical end, preventing the return of applicants to places where they will or may suffer persecution. Legal niceties and refinements should not be allowed to obstruct that purpose. It can never, save in extreme circumstances, be appropriate to compare an applicant’s living conditions in different countries if, in each of them, he will be safe from persecution or the risk of it”: R (Yogathas) v. Secretary of State for the Home Department, [2003] 1 AC 920 (UK HL, Oct. 17, 2002), at [9], per Lord Bingham. The concern is that the vague reference to “living conditions” inappropriately collapses the legally cognizable duty to implement Arts. 2–34 with other, legally irrelevant, considerations. Januzi v. Secretary of State for the Home Department, [2006] 2 AC 426 (UK HL, Feb. 15, 2006). This case was concerned with the internal protection alternative, in which context the limits on the scope of permissible return by the United Kingdom were considered. “Suppose a person is subject to persecution for Convention reasons in the country of his nationality. It is a poor country. Standards of social provision are low. There is a high level of deprivation and want. Respect for human rights is scant. He escapes to a rich country where, if recognised as a refugee, he would enjoy all the rights guaranteed to refugees in that country. He could, with no fear of persecution, live elsewhere in his country of nationality, but would there suffer all the drawbacks of living in a poor and backward country. It would be strange if the accident of persecution were to entitle him to escape, not only from that persecution, but from the deprivation to which his home country is subject. It would, of course, be different if the lack of respect for human rights posed threats to his life or exposed him to the risk of inhuman or degrading treatment or punishment”: Januzi v. Secretary of State for the Home Department, [2006] 2 AC 426 (UK HL, Feb. 15, 2006), at [19], per Lord Bingham.

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set by the Refugee Convention is rather defined by either an absolute or contingent standard of attainment, which is the sole measure of compliance.96 The standard varies from right to right. For example, the refugee must receive the same protection as nationals of the destination country with regard to religious freedom (Art. 4), access to rationing systems (Art. 20), ability to undertake primary education (Art. 22), and fiscal equity (Art. 29).97 But he or she need only be granted the same rights as aliens generally in the destination country as regards property rights (Art. 13) and access to post-primary education (Art. 22).98 Only a small number of rights owed by virtue of subjection to jurisdiction or physical presence – non-discrimination as among refugees (Art. 3), respect for personal status (Art. 12), access to the courts (Art. 16), access to administrative assistance (Art. 25), issuance of identity documents (Art. 27), nonpenalization for illegal entry or presence and freedom from arbitrary detention (Art. 31), non-refoulement (Art. 33) and consideration for assimilation or naturalization (Art. 34) – are defined in absolute terms, either because the drafters deemed them fundamental to the most basic definition of protection, or because a contingent standard of respect is unviable given their refugee-specific nature.99 As this structure makes clear, the duty to undertake “anxious scrutiny” of the destination state’s record of respect for acquired refugee rights as a condition of lawful expulsion is in no sense benchmarked against the conditions that prevail in the state contemplating expulsion. With the exception of core, refugee-specific rights, the highest standard of respect demanded by the Refugee Convention is instead whatever the destination country guarantees to its own citizens. The pre-removal question is simply whether the requirements of the Refugee Convention are met, with that assessment based on the standards set by the Convention. The primary focus of the pre-expulsion inquiry will thus be whether the state party to which removal is contemplated can be relied upon to respect the refugee’s already acquired rights – that is, those rights that inhere in refugees who are simply under a state’s jurisdiction, or within its territory.100 Any deprivation of such rights is, for the reasons previously described,101 attributable to the sending state itself. Beyond the duty to ensure respect for acquired rights, international law also holds a state responsible if it knowingly removes a refugee to a state party that will not respect those refugee rights that remain inchoate102 – that is, those that may be 96 99 102

97 98 See Chapters 3.2–3.3.3. See Chapter 3.3.2. See Chapter 3.2.1. 100 101 See Chapter 3.3.3. See Chapter 4. See text at note 72. “[R]emoval or transfer of a person from the territory or jurisdiction of one state to another does not also transfer legal obligations to that other state”: M. Foster, “Protection Elsewhere: The Legal Implications of Requiring Refugees to Seek Protection in Another State,” (2007) 28 Michigan Journal of International Law 223 (Foster, “Protection Elsewhere”), at 268 (emphasis in original). See also J. Vedsted-Hansen, “Non-Admission Policies and the Right to Protection: Refugees’ Choice Versus States’ Exclusion?,” in F. Nicholson and P. Twomey (eds.), Refugee Rights and Realities: Evolving International

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invoked only once the refugee has established lawful presence, lawful stay, or durable residence.103 Specifically, the removing state has a duty not to “aid or assist” another state party to breach its legal obligations104 – in this case, to honor all refugee rights at such time as they are owed. International law would deem a removal to be “assistance” if it is “clearly and unequivocally connected to the subsequent wrongful act”105 and, most important, if it is carried out “with a view to facilitating the commission of the wrongful act.”106 Thus, removal of a refugee to a state known indefinitely to deny refugees the right to work or to access public relief and assistance (both owed once “lawful stay” is established)107 in furtherance of a policy of deterring the arrival of refugees would demonstrate the requisite specific intent, and hence be internationally unlawful.108

103 104

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Concepts and Regimes 269 (1999), at 279 (emphasis in original): “Taking into account the content and structure of the [Refugee] Convention, as well as the declaratory nature of the determination of refugee status, it must follow that, in order to be considered an adequate country of first asylum, the relevant state has to provide refugee protection of a quality, and at a level, in conformity with the protection scheme laid down in the Convention.” But Legomsky suggests a somewhat lower duty, that being only to avoid “knowingly” sending the refugee to a place where Convention rights will not be respected, with the degree of certainty required by the term “knowingly” to vary inversely with the importance of the particular right: S. Legomsky, “Secondary Refugee Movements and the Return of Asylum Seekers to Third Countries: The Meaning of Effective Protection,” (2003) 15 International Journal of Refugee Law 567, at 624. While a helpful acknowledgment of the duty to ensure respect for acquired rights, this analysis is problematic since there is no formal hierarchy among refugee rights, leading to divergent views among state parties about which rights are thought to be “important.” See generally Foster, “Protection Elsewhere,” at 270–275. See Chapters 3.1.3–3.1.5. “A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if: (a) that State does so with knowledge of the circumstances of the internationally wrongful act; and (b) the act would be internationally wrongful if committed by that State”: International Law Commission, “Report of the International Law Commission on the Work of its Fifty-Third Session (23 April – 1 June and 2 July – 10 August 2001),” UN Doc. A/56/10 (2001), at 27 (Art. 16); endorsed by “Responsibility of States for Internationally Wrongful Acts”, UN General Assembly Res. 56/ 83, UNGAOR, 56th sess., 85th plen. mtg., Agenda Item 162, Supp. No. 49, UN Doc. A/RES/ 56/83 (Dec. 12, 2001), at [3]; approved in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, [2007] ICJ Rep 43 (ICJ, Feb. 26, 2007), at [420]. International Law Commission, “Second Report on State Responsibility by Mr. James Crawford, Special Rapporteur,” 51st sess., UN Doc A/CN.4/498/Add.1 (Apr. 1, 1999), at [178]. International Law Commission, “Report of the International Law Commission on the Work of its Fifty-Third Session (23 April – 1 June and 2 July – 10 August 2001),” UN Doc. A/56/10 (2001), at [5]. “A State is not responsible for aid or assistance under Article 16 unless the relevant state intended, by the aid or assistance given, to facilitate the occurrence of the internationally wrongful conduct”: ibid. Refugee Convention, at Arts. 17, 23. See Chapters 6.1 and 6.3. Absent evidence of such specific intent, however, the simple fact of removal to a country in which international rights owed at some future point will not be fully honored does not

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More generally, even absent evidence of such specific intent, a sending state which has actual or constructive knowledge that the destination country will not grant Convention rights on the terms mandated by international law may violate the duty of pacta sunt servanda – the duty to interpret a treaty in good faith.109 If the manner in which a treaty is interpreted, including through application, leads to a result that is manifestly unreasonable in light of that treaty’s context, object and purpose, then that interpretation is impermissible as a matter of international law.110 Given that the Refugee Convention is expressly founded on the conviction that states are committed to “assur[ing] refugees the widest possible exercise of . . . fundamental rights and freedoms,”111 and that its language and structure are designed to grant a clear catalog of rights to refugees, it would surely be antithetical to the Convention’s very essence to read it as allowing a state party forcibly to expel a refugee to a state known not to deliver those rights. In sum, even before a refugee is lawfully present and thus entitled to the protections of Art. 32, expulsion is constrained by the duty of the expelling state to engage in anxious scrutiny not only of the risk of refoulement, but also of the ability and willingness of the destination country to honor the refugee claimant’s acquired rights. The sending state must also not aid or assist the destination country to breach its duty to honor still inchoate rights (those rights associated with lawful or habitual presence, lawful stay, or durable residence). While a state only aids or assists if it seeks to facilitate an unlawful act, that requirement is arguably satisfied where the expulsion is in aid of

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amount to aiding or assisting the destination state to breach its obligations and cannot therefore be deemed a condition precedent to removal under a protection elsewhere rule. It would, of course, be possible to argue that the sending state is subject to an implied duty of non-refoulement with respect to all refugee rights, that is, that it must never remove anyone to a state where the refugee rights associated with lawful presence and higher levels of attachment are not respected. To this point, however, courts have been prepared to impose liability to avert extraterritorial harms only where the risk abroad reaches a level of acute gravity – as, for example, the risk of torture or cruel and inhuman treatment. Thus the House of Lords has determined that while a range of substantive harms may be relevant, only the threat of a harm that amounts to a “flagrant denial or gross violation” will be sufficient to impose responsibility to avert an extraterritorial harm: R (Ullah) v. Special Adjudicator, [2004] 2 AC 323 (UK HL, June 17, 2004), at 352 [24], per Lord Bingham. See e.g. Mamatkulov v. Turkey, Dec. Nos. 46827/99 and 46951/99 (ECtHR, Feb. 4, 2005). Indeed, this understanding of Strasbourg jurisprudence may go beyond what the European Court of Human Rights has been prepared to acknowledge by way of the breadth of the implied duty of non-return, at least where the destination state is also bound by the European Convention for the Protection of Human Rights: see e.g. KRS v. United Kingdom, Dec. No. 32733/08 (ECtHR, Dec. 2, 2008). Vienna Convention on the Law of Treaties, adopted May 23, 1969, entered into force Jan. 27, 1980, 1155 UNTS 331 (UNTS 18232) (“Vienna Convention”), at Art. 31(1). A. Aust, Modern Treaty Law and Practice (2013), at 208–209. Refugee Convention, at Preamble, [2].

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a policy intended to deter the arrival of refugees by exposing them to unlawful risks in the destination country.

5.1.2 Constraints after Lawful Presence As originally conceived, the supplementary protection against expulsion set by Art. 32 – which prohibits removal of a refugee to any country, even if not a place where there is a risk of being persecuted – would only have been granted to refugees who were “authorized to reside regularly in the territory” of a state party.112 If subject to this level of attachment, protection against expulsion would inhere only in refugees who benefit from some form of officially sanctioned, ongoing presence in a state party; refugees undergoing status verification as well as those present only for a limited period of time or arriving in a state that declines to assess status would be excluded from the beneficiary class.113 The drafters of Art. 32, however, opted to delete the requirement for refugees to have a right of ongoing residence in a state party in order to benefit from protection against expulsion. Instead, Art. 32 rights now inhere in all refugees “lawfully in [a state party’s] territory,” which includes those undergoing status verification, admitted for a set period of time, or whose claim to refugee status the asylum state has opted not to assess.114 The change seems to have been motivated by an effort to bring Art. 32 into line with the draft version of Art. 13 of the Civil and Political Covenant, which proposed granting all non-citizens a less robust form of protection against expulsion once they are “lawfully in the territory of a State Party.”115 The Report of the Ad Hoc Committee’s first session made the change to grant Art. 32 protection to refugees “lawfully in their territory,”116 with only a footnoted explanation citing the language proposed by the Commission on Human Rights for the draft Covenant.117 The drafters were well aware that they were providing protection against expulsion to refugees who had yet to be recognized as refugees entitled to stay on an ongoing basis in their territory. At the Conference of Plenipotentiaries, the Swedish representative made reference to the “difficulty” of extending protection against expulsion to all refugees lawfully in a state’s territory:

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113 115 116

Secretary-General, “Memorandum,” at 45. As recently confirmed by the UK Supreme Court, Art. 32 “gives a remedy against forced removal from the relevant territory,” interpreted to include the UK sovereign base area on Cyprus: R (Tag Eldin Ramadan Bashir) v. Secretary of State for the Home Department, [2018] UKSC 45 (UK SC, July 30, 2018), at [88]. See Chapter 3.1.4. 114 See Chapter 3.1.3. Civil and Political Covenant, at Art. 13. Ad Hoc Committee, “First Session Report,” at Annex I. 117 Ibid. at Annex II.

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What criterion would in fact be applied to decide whether a refugee was indeed lawfully in a territory? Sweden distinguished between aliens to whom a right of establishment had been granted, and aliens possessing only a right of temporary residence. The question did not arise in respect of the former, but, in respect of the latter, the Swedish Government wished to be able to expel them if it so decided when the authorization granted to them expired.118

Despite this clear warning that the language of Art. 32 would include refugees who had not been granted permission to stay in the asylum state, no amendment was made to Art. 32 to accommodate the Swedish concern. The most significant indication that Art. 32’s beneficiary class was intended to include persons not yet authorized to stay in the asylum country occurred on second reading of the Convention at the Conference of Plenipotentiaries. The Swedish delegate this time pointed out the inconsistency between the English language title of Art. 32 (“Expulsion of refugees lawfully admitted”) and the French language equivalent, which used the phrase “résidant régulièrement au pays d’accueil.” Referring to an earlier decision of the Style Committee which had defined the equivalent English- and French-language terms for the various levels of attachment,119 Mr. Petren observed that the English title did not correspond to the French title (indeed, “lawfully admitted” had not been accepted by the Style Committee at all as a relevant term of art).120 Acknowledging the discrepancy, the Conference deleted the reference to the level of attachment in Art. 32’s title without making any change to the corresponding language of the text.121 Art. 32 was therefore approved on the basis that protection against expulsion inheres in refugees “lawfully in their territory” (in French, “se trouvant régulièrement sur leur territoire”). Because this vote was taken immediately after attention had been drawn by the Swedish delegate to the fact that the personal scope of Art. 32 required clarification, with explicit reference to the fact that being “lawfully in the territory” implies a lesser attachment to the asylum state than does “lawfully staying in the territory,”122 it is difficult to imagine that there was any doubt among the drafters about the significance of the Conference’s decision.123 118 119

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123

Statement of Mr. Petren of Sweden, UN Doc. A/CONF.2/SR.14, July 10, 1951, at 21. “Draft Convention relating to the Status of Refugees, Report of the Style Committee,” UN Doc. A/CONF.2/102, July 24, 1951, at [5]. Statement of Mr. Petren of Sweden, UN Doc. A/CONF.2/SR.35, July 25, 1951, at 20. The vote in favor was 21–0 (1 abstention): ibid. “Draft Convention relating to the Status of Refugees, Report of the Style Committee,” UN Doc. A/CONF.2/102, July 24, 1951, at [5]. The attention of delegates was expressly drawn to this report immediately prior to the vote on Art. 32: Statement of Mr. Petren of Sweden, UN Doc. A/CONF.2/SR.35, July 25, 1951, at 20. See G. Stenberg, Non-expulsion and Non-refoulement (1989) (Stenberg, Non-expulsion), at 92: “Based on the fact that the drafters intended that a refugee should be regarded as lawfully in the territory regardless of the period of time for which his sojourn has been

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There is moreover a particular logic to granting Art. 32 protection against expulsion to refugees who have been admitted to a status assessment process, but who are awaiting the results of that inquiry. Once the refugee has been allowed to enter a refugee status determination procedure and has acquitted himself or herself of all responsibilities to contribute to the inquiry into his or her claim (thereby regularizing his or her presence, and becoming “lawfully present” – though not yet “lawfully staying” – in the state), it would be harsh to force him or her away before a final answer is given. If the asylum state is genuinely overwhelmed, it may of course exercise the option initially to redirect refugees to other states where their rights will be respected, and in which there is no direct or indirect risk of being persecuted.124 And if the concern is rather to ensure that the refugee’s presence does not pose a particularized risk, then the right under Art. 32 to expel a refugee on national security or public order grounds, as described below,125 surely suffices. In any event, the duty under Art. 32 to desist from expulsion is purely provisional since the refugee’s “lawful presence” normally comes to an end if and when refugee status is denied or other provisional status comes to an end. The basic rationale for going beyond the duty of non-refoulement to impose limits on the right of states to expel lawfully present refugees to even nonpersecutory countries was elegantly stated in the Secretary-General’s background study for the Convention: There is little likelihood that a foreign country will consent to receive a refugee whose expulsion has been ordered and who is thereby stamped as undesirable. As every frontier is barred to a refugee whose expulsion has been ordered, only two possibilities are open to him, either not to obey the order and go into hiding to avoid being caught or to cross a frontier illegally and clandestinely enter the territory of a neighbouring country. In that country, too, he must go into hiding to avoid being caught. In either case, after a certain time he is discovered, arrested, prosecuted, sentenced and escorted to the frontier after serving his sentence. Caught between two sovereign orders, one ordering him to leave the country and the other forbidding his entry into the neighbouring country, he leads the life of an outlaw and may in the end become a public danger. In this way measures of expulsion, . . . intended to protect law and order, achieve opposite results when an attempt is made to apply them to refugees without taking account of their particular position.126

124 126

authorized it may nevertheless tentatively be submitted that neither did the drafters intend that protection in accordance with Article 32 should be extended only to those whose refugee status had already been recognized by the expelling State and not to those refugees whose status had not yet been recognized.” See text at note 55. 125 See text at note 174 ff. Secretary-General, “Memorandum,” at 46.

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There were, however, differences of view about just how best to effect the protection of lawfully present refugees from expulsion. The Secretary-General’s draft of the combined duty of non-refoulement and non-expulsion disallowed either act unless “dictated by reasons of national security or public order”127 and would have authorized only “a judicial authority”128 to expel a refugee. The competing French draft for Art. 32, on the other hand, would have imposed no substantive limits on the right to expel refugees and offered no guarantee of an opportunity to appear in court. It would be enough if the refugee were allowed “to submit evidence to clear himself, and to be represented before the competent judicial or administrative authority.”129 A third approach suggested by a nongovernmental organization, the Agudas Israel World Organization, presented states with a middle ground approach: they would agree to constrain the expulsion of refugees, but could elect to do so either on substantive grounds (limited to “national security”) or procedurally (by requiring that any expulsion decision be reached “in pursuance of a decision of a judicial authority,” presumably for a broader range of reasons).130 Ultimately the delegates opted for a more flexible version of the approach initially proposed by the Secretary-General, that being that the expulsion of refugees would be subject to both procedural and substantive limits. But not only courts, but also administrative decision-makers, could be entrusted to afford the refugee the necessary procedural guarantees. And a broader range of substantive concerns would suffice to justify expulsion – either national security or public order grounds could be invoked.

5.1.3 Procedural Constraints on Expulsion The procedure by which refugees could be expelled was the first concern of the drafters. While acknowledging the general right of states to remove noncitizens from their territory,131 safeguards were felt necessary because 127 128

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Ibid. at 45. Ibid. This right to contest expulsion before a court was based on a generous interpretation of the draft of what became Art. 13 of the International Covenant on Civil and Political Rights, 999 UNTS 172 (UNTS 14668), adopted Dec. 16, 1966, entered into force Mar. 23, 1976 (Civil and Political Covenant), then framed to require the expulsion of any alien to be ordered “according to such procedure and safeguards as are provided by law”: SecretaryGeneral, “Memorandum,” at 47. France, “Proposal for a Draft Convention,” UN Doc. E/AC.32/L.3, Jan. 17, 1950 (France, “Draft Convention”), at 9. “Communication from the Agudas Israel World Organization,” UN Doc. E/C.2/242, Feb. 1, 1950, at [2]. This approach was selected as the basis for the working draft of Art. 32 on the basis of a proposal from the British representative, who found that it “presented the question of expulsion and non-admittance in a more logical form than did the others”: Statement of Sir Leslie Brass of the United Kingdom, UN Doc. E/AC.32/SR.20, Feb. 1, 1950, at 2–3. “The sovereign right of a State to remove . . . from its territory foreigners regarded as undesirable cannot be challenged”: Secretary-General, “Memorandum,” at 45.

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[e]xperience had shown that a large number of expulsion orders are due to false accusations and the malice of ousted competitors. Sometimes the orders are due to an error de persona. So long as expulsion proceedings are secret and so long as the expelled person is deprived of any means of presenting his case, mistaken decisions are inevitable.132

As noted above,133 the Secretary-General’s view was that entrusting all expulsion cases to the courts would be the best means of ensuring due process. The American representative championed this approach; he was adamant that allowing lesser tribunals or authorities to expel a refugee “would deprive the refugee of the safeguards which every individual was entitled to expect from judicial authority. He would be left to the discretion of police measures.”134 It was soon clear, however, that most governments were unwilling to guarantee judicial oversight of refugee expulsion.135 The American representative thus acquiesced in a Canadian compromise,136 under which governments could entrust expulsion decisions to administrative authorities but would formally commit themselves to ensure that expulsion would be ordered “only in pursuance of a decision reached by due process of law.”137 This most basic standard was clearly not respected, for example, when Algeria simply expelled thousands of refugees at gunpoint into the Sahara Desert.138 Not only must the initial decision be made in accordance with due process, but Art. 32 also explicitly entitles refugees “to appeal to . . . competent authority or . . . persons specially designated by the competent authority [emphasis added]”139 – a duty clearly ignored when Jordan allowed its security forces to expel Syrian refugees without affording them an opportunity to contest their removal or to seek legal assistance.140 A simple administrative review by the supervisor of a border guard will not 132 133 134 135

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Ibid. at 47. See also Ad Hoc Committee, “First Session Report,” at Annex II. See text at note 128. Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.20, Feb. 1, 1950, at 6. See comments of the representatives of Canada, Turkey, France, and Belgium, ibid. at 6–7; and comments of the government of Austria in United Nations, “Compilation of Comments,” at 55. “The essential thing was that it should not be possible to expel refugees other than in accordance with a regular procedure provided by the law, whether administrative or judicial”: Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.20, Feb. 1, 1950, at 12. Statement of the Chairman, Mr. Chance of Canada, ibid. at 7. 138 See text at note 36. In contrast, under the more generally applicable Art. 13 of the Civil and Political Covenant aliens enjoy only a right to have their case “reviewed by” the competent authority or its designate. Schabas nonetheless contends that Art. 13 “is clearly inspired by Art. 32(2) of the 1951 Refugee Convention”: W. Schabas, UN International Covenant on Civil and Political Rights: Nowak’s CCPR Commentary (2019) (Schabas, Nowak’s CCPR Commentary), at 344. See text at note 40.

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suffice;141 the appeal provided should rather be a formal reevaluation of the kind implied by the notion of the right to “présenter un recours.”142 While the language was not intended to require access to a formal appellate court143 or even directly to the ultimate decision-maker,144 there was 141

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In the Ad Hoc Committee, the French representative reacted to the original wording of the Canadian amendment by observing that “he had not grasped the exact meaning of the words ‘final decision.’ In France an expulsion order was issued by the Prefect, and no administrative authority could usurp his right. His order was therefore final”: Statement of Mr. Ordonneau of France, UN Doc. E/AC.32/SR.20, Feb. 1, 1950, at 18. The Chairman responded that the amendment had, in fact, been intended to ensure that the ultimate decision could not be made by a police officer: Statement of the Chairman, Mr. Chance of Canada, ibid. At its second session, the Ad Hoc Committee dropped the (arguably ambiguous) reference to a “final decision” in favor of an explicit requirement to allow a refugee to “appeal,” noting that “[t]he procedural safeguards accorded to refugees were clarified and are now contained wholly in paragraph 2”: “Report of the Ad Hoc Committee on Refugees and Stateless Persons, Second Session,” UN Doc. E/1850, Aug. 25, 1950 (Ad Hoc Committee, “Second Session Report”), at 13. The authoritative nature of the French text is clear from the remarks of the British representative, who had been the most ardent opponent of access to an appellate court in cases of expulsion. The French representative suggested that the French notion of “présenter un recours” could most readily be translated into English as “to lodge an appeal”: Statement of Mr. Rochefort of France, UN Doc. A/CONF.2/SR.15, July 11, 1951, at 14. The British representative replied that the notion of “présenter un recours” “was in fact equivalent to the English word ‘appeal’”: Statement of Mr. Hoare of the United Kingdom, ibid. The decision to employ the term “appeal” in Art. 32(2) should therefore be understood in context to require access to a procedure of reevaluation of the kind implied by the French concept of “présenter un recours.” “The position of the United Kingdom was similar to that of Italy, since there was no specially constituted appeals tribunal. But the reference to the procedure of appeal, at least in the English version . . . was not so specific as to make the text unacceptable to the United Kingdom Government”: Statement of Mr. Hoare of the United Kingdom, UN Doc. A/ CONF.2/SR.15, July 11, 1951, at 13. In some circumstances, however, it was recognized that appeal to a court might be required. At the Conference of Plenipotentiaries, the Danish Chairman asked, “How, for example, would an appeal be possible if the decision had been taken by the King in Council? He assumed that the meaning of the text was that, in the event of expulsion pronounced by the highest authority, the refugee would be given the chance of having his case re-examined. In countries where such a sentence would have been passed by local authority, the appeal would be addressed to a court of higher instance”: Statement of the Chairman, Mr. Larsen of Denmark, ibid. at 14–15. Schabas is thus technically correct to argue that what is meant by Art. 32(2) “is the review of an administrative decision . . . and not a judicial appeal from an earlier decision of a tribunal” (Schabas, Nowak’s CCPR Commentary, at 345). It remains, though, that more is required by Art. 32(2) than simply the ability, per Art. 13 of the Covenant, to submit reasons against expulsion and to have these “reviewed by a competent authority” (ibid. at 345). The appeal must rather be more than a simple administrative review, and it must be to an authority that is not just competent but also both of some seniority and with the practical capacity to prevent expulsion. Art. 32(2) also imposes other more demanding procedural standards than does Art. 13 of the Covenant: see text at note 151 ff. The British delegate was insistent that there could be no question of requiring the personal involvement of the ultimate decision-maker on expulsion cases, that being the Home

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agreement that a refugee must be entitled to appeal his or her case to an authority of some seniority.145 Most importantly,“[w]hat mattered was that a refugee should have full opportunity of presenting his case to the proper authority.”146 Thus, the appellate authority should, at the very least, be explicitly empowered to take account of all the circumstances of the case, including the special vulnerabilities and rights of refugees, and must, of course, have real authority over the expulsion process – as for example was the case when the Israeli Supreme Court ordered a suspension of the plan to expel some 40,000 refugees to Uganda in 2018.147 In contrast, Kuwait’s expulsion of refugees suspected of collaboration with Iraq – even though the charges against them had either been withdrawn or dismissed148 – makes clear that its courts did not, in fact, possess the degree of authority required by Art. 32. Like all aliens, refugees are entitled to claim the benefit of the Civil and Political Covenant’s right to a “review” of a decision to expel them, including to submit reasons against their expulsion149 and to be represented.150 But Art.

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Secretary in the United Kingdom: Statement of Sir Leslie Brass of the United Kingdom, UN Doc. E/AC.32/SR.20, Feb. 1, 1950, at 20. His government introduced an amendment adopted at the Conference of Plenipotentiaries, which resulted in the clarification in Art. 32(2) that the appeal could be to “competent authority or a person or persons specially designated by the competent authority”: UN Doc. A/CONF.2/60. Davy offers, but does not develop, the view that “[g]iven the affinities between refugee law and human rights law and given the developments in human rights law over the past decades . . . due process of law is served only if the complaints raised by refugees under the prospect of an expulsion order are scrutinized by an independent and impartial body authorized to assess their complaints from the perspective of abuse of power”: Davy, “Article 32,” at 1318. Statement of Mr. Hoare of the United Kingdom, ibid. at 13. 147 See text at note 24. See text at note 33. Schabas observes that “[e]ven though the reasons against a pending expulsion should, as a rule, be asserted in an oral hearing, Art. 13 does not . . . give rise to a right to personal appearance”: Schabas, Nowak’s CCPR Commentary, at 344–345. Importantly, however, the individuated nature of the requisite procedural rights means that “mass expulsions cannot satisfy the procedural requirements of article 13, which compel consideration of each prospective deportee’s case. This demonstrates how procedural guarantees import at least some degree of substantive accountability”: S. Joseph and M. Castan, The International Covenant on Civil and Political Rights: Cases, Materials, and Commentary (2013) (Joseph and Castan, ICCPR), at 419, referencing UN Human Rights Committee, “General Comment No. 15: The Position of Aliens under the Covenant” (1986), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [10]. It may also be the case that the guarantee of Covenant Art. 2(3) to provide an effective remedy for human rights violations requires – at least where a risk to Art. 6 or 7 interests is at stake – “that asylum-seekers be able to appeal first-instance decisions to an independent body” and that “such appeals must not be subject to unduly short time limits, even in accelerated asylum procedures, and must have suspensive effective vis-à-vis the expulsion of the asylum-seekers”: D. Cantor, “Reframing Relationships: Revisiting the Procedural Standards for Refugee Status Determination in Light of Recent Human Rights Treaty Body Jurisprudence,” (2015) 34 Refugee Survey Quarterly 79, at 88. “[A] person threatened with expulsion is not entitled to legal counsel or to the appointment of an attorney”: Schabas, Nowak’s CCPR Commentary, at 346. The jurisprudence of

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32’s more explicit language goes farther, unambiguously affirming the right of refugees to “submit evidence” in support of their case, not merely to state their reasons for resisting expulsion.151 The breadth of relevant evidence moreover includes any evidence which may assist the refugee to “clear himself,” not just evidence “against expulsion.”152 There can therefore be no question that the person or body considering a refugee’s appeal against expulsion must consider evidence relevant to, for example, the soundness of a criminal conviction which underpins the expulsion order, rather than limiting itself simply to the consideration of evidence about the propriety of the expulsion order itself. Most important of all, Art. 32 of the Refugee Convention expressly requires that the decision to expel a refugee “shall be only in pursuance of a decision reached in accordance with due process of law.” The more general formulation in Art. 13 of the Civil and Political Covenant – stipulating simply that the expulsion decision be “reached in accordance with law”153 – requires only that “such a decision must be made by a court or an administrative authority on the basis of a law affording protection against arbitrary expulsion through the establishment of corresponding procedural guarantees.”154 In contrast, the drafters of the Refugee Convention were emphatic that a stronger guarantee of safeguards was required155 in order to ensure a meaningful “legal check on the powers of the administration.”156 The Israeli delegate, in particular, insisted that the specific protection needs of refugees justified stronger protections against expulsion than those afforded aliens generally:

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the Human Rights Committee, in particular Ahani v. Canada, HRC Comm. No. 1051/ 2002, decided June 15, 2004, may nonetheless be read to provide “that aliens are expected, under the Covenant, to receive a hearing accompanied by basic due process rights of notice, disclosure, representation, and an opportunity to be heard”: G. Heckman, “Ahani v. Canada,” (2005) 99(3) American Journal of International Law 669, at 673–674. For example, only two dissenting members of the Human Rights Committee found a breach of Art. 13 of the Civil and Political Covenant in a case involving an Iranian expelled by Australia, arguing that the applicant “should have been given the opportunity to comment on the information submitted to [authorities], at least in summary form”: Mansour Leghaei v. Australia, HRC Comm. No. 1937/2010, UN Doc. CCPR/C/113/D/ 1937/2010, decided Mar. 26, 2015, at Appendix, [5]. While Schabas may be right that the more constrained language of the Civil and Political Covenant “did not change the substance of the right” as conceived in the Refugee Convention (Schabas, Nowak’s CCPR Commentary, at 344) the greater precision of Art. 32 of the Refugee Convention more readily forecloses debate on these points. Nor do Joseph and Castan share Schabas’ optimism, their analysis finding that “[i]t is possible that the alien’s right of review simply means a review of the initial expulsion decision, which may have been made without the furnishing of an opportunity for the alien to present counter-arguments”: Joseph and Castan, ICCPR, at 424. Civil and Political Covenant, at Art. 13. Schabas, Nowak’s CCPR Commentary, at 340. Statement of Mr. Weis of the International Refugee Organization, UN Doc. E/AC.32/ SR.40, Aug. 22, 1950, at 15. Statement of Mr. Juvigny of France, ibid. at 12.

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[T]here should be a great distinction between the treatment of aliens in general and the treatment of refugees. The stage had now been reached in social legislation when social cases could be spoken of, and the great problem was, who was responsible for the social cases represented by the refugee. In the case of aliens, the answer was their own country; in the case of refugees, the answer was no country. If refugees were not nationals in the political sense of the country where they were resident, however, they were in a moral sense. It seemed to him that countries should accept refugees as human beings, with all the infirmities and weaknesses inherent in the human condition, and treat them accordingly when they offended against national laws.157

To this end, the Chinese representative endorsed the Canadian proposal to require respect for due process,158 remarking that “[t]he concept of due process, familiar to those who understood Anglo-American common law, would be easily acceptable.”159 At its most basic level, due process embraces a duty to respect a range of technical, procedural requirements associated with basic fairness. For example, the High Commissioner for Refugees noted during the Conference of Plenipotentiaries that he “assumed that it was understood that a refugee would not be expelled while his case was sub judice.”160 But as Weis has correctly observed, due process also has a fundamental substantive dimension which “means that the [expulsion] decision must be based on law, that it may not be unreasonable, arbitrary or capricious and must have a real and substantive relation to its object.”161 This is a marked advance on the general requirement set by Art. 13 of the Civil and Political Covenant which sadly “is not even a comprehensive guarantee against arbitrary expulsion.”162 Nor did the drafters of Art. 32 simply agree that adherence to due process norms was desirable; they rather formally bound themselves to respect these standards.163 There was no enthusiasm for a French proposal that decisions be 157 158

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Statement of Mr. Robinson of Israel, ibid. at 16. Statement of the Chairman, Mr. Chance of Canada, UN Doc. E/AC.32/SR.20, Feb. 1, 1950, at 7. Statement of Mr. Cha of China, UN Doc. E/AC.32/SR.40, Aug. 22, 1950, at 24. Statement of Mr. van Heuven Goedhart of UNHCR, UN Doc. A/CONF.2/SR.15, July 11, 1951, at 16. Weis, Travaux, at 322. Joseph and Castan, ICCPR, at 429. An argument may, however, be made that any “arbitrary” expulsion is, given the other requirements of the Covenant, necessarily not “in accordance with law”: Schabas, Nowak’s CCPR Commentary, at 341. There was little support for an effort by Italy to delete the reference to respect for due process: UN Doc. A/CONF.2/57. Italy withdrew its proposal: Statement of Mr. Theodoli of Italy, UN Doc. A/CONF.2/SR.15, July 11, 1951, at 13. Davy takes the view that these procedural requirements are “imperfect,” arguing that “Article 32, para. 2 . . . establishes State obligations, but no immediate enforceable subjective rights of the refugees concerned. Exercisable rights require that legislative steps be taken by the domestic parliaments”: Davy, “Article 32,” at 1300. While it is of course true that domestication is

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reached only “with regard for” (rather than “in accordance with”) due process of law.164 Nor even was there agreement to a Belgian proposal that the three specific aspects of due process mentioned in Art. 32(2) – the right to submit evidence, to appeal, and to be represented – would be mandatory only “[i]nsofar as national security permits.”165 Baron van Boetzelaer of the Netherlands successfully persuaded the Conference that limitations on the three stipulated due process rights should not be possible simply because national security was involved, but rather only when “imperative” national security concerns so required.166 The text of Art. 32 was thus amended to allow state parties exceptionally to justify limits on three aspects of a refugee’s due process rights – to submit evidence, to appeal, and to be represented – but only “where compelling reasons of national security [so] require.” Three key notions therefore circumscribe the possibility of procedural constraints on the applicability of Art. 32(2). First, there is no general right to avoid respect for due process norms even when compelling national security concerns require derogation: only the three rights set out in the second sentence of Art. 32(2) may be constrained.167 Thus, for example, not even compelling national security concerns can justify the expulsion of a refugee under a procedure that is unreasonable, arbitrary, or capricious. In line with this approach, whatever the suspicions of Kenya that Somali refugees had been involved in attacks on its forces,168 summary en masse expulsion is arbitrary and thus always a breach of Art. 32(2). Second, because Art. 32(2) is a highly constrained, necessity-based exception (“where compelling reasons of national security otherwise require”) to a fundamental norm, the state party seeking to avoid its usual due process

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required, this critique may be somewhat overstated, as international law could not simultaneously mandate rules of real specificity and still retain its relevance across all legal systems. Statement of Mr. Juvigny of France, UN Doc. E/AC.32/SR.40, Aug. 22, 1950, at 29. France had formally tabled comments to similar effect, observing that “[t]his modification would make the text more flexible and cover urgent cases which might require a simpler procedure”: Comments of France in United Nations, “Compilation of Comments,” at 56. It had also tabled a formal amendment to this end (see UN Doc. A/CONF.2/63), which it subsequently withdrew: Statement of Mr. Rochefort of France, UN Doc. A/CONF.2/ SR.15, July 11, 1951, at 13. UN Doc. A/CONF.2/68. The Belgian representative “understood the motives that had prompted the French and Italian delegations to submit their amendments . . . He wondered whether a reservation concerning national security would not meet the points that the French and Italian delegations had in mind”: Statement of Mr. Herment of Belgium, UN Doc. A/CONF.2/SR.15, July 11, 1951, at 12. Statement of Baron van Boetzelaer of the Netherlands, UN Doc. A/CONF.2/SR.15, July 11, 1951, at 15. “Total secrecy, total exclusion of review, or a pro forma review by a court imply an unjustifiable denial of individual rights”: Davy, “Article 32,” at 1320. See text at note 45.

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responsibilities must establish that respect for one or more of the three listed due process rights cannot be reconciled to the national security risk at issue.169 The asylum state must thus limit its restrictions on the due process right in question to only what is objectively necessary to safeguard its compelling security interest. This approach is comparable to that adopted by the European Court of Human Rights in the case of Chahal v. United Kingdom, in which the Court found that limitations on due process even when considering the expulsion of an alleged terrorist asylum-seeker must be conceived in the least intrusive fashion possible.170 As such, Malaysia’s expulsion of Tamil refugees on the grounds of terrorism concerns – relying on secret evidence and with no process or opportunity whatever to answer those charges171 – would be unlikely to meet the bar of Art. 32(2). Third, the exception to Art. 32(2) is logically difficult to invoke outside the more formal judicial arena. As Grahl-Madsen has observed, It is difficult to see that this exception is of much relevance in a system where the power to expel lies exclusively with administrative authorities. Even if they have reached their decision on the basis of confidential material, the nature of which may not be disclosed without endangering national security, there is hardly any reason why the refugee should not be allowed to submit evidence, appeal or be represented. This will, after all, not force the authorities to disclose their sources of information. If, on the other hand, the law provides for hearings before or appeals to a judicial or semi-judicial authority, it may be necessary for the administration to plead that certain evidence, an appeal or presentations by counsel are non-receivable by the tribunal, because if the latter received such pleas, the administration would be forced to 169

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“The adjective ‘compelling’ was meant to better preserve the interests of refugees in case a contracting State moved to restrict their rights for the sake of national security”: Davy, “Article 32,” at 1319. “The Court recognises that the use of confidential material may be unavoidable where national security is at stake. This does not mean, however, that the national authorities can be free from effective control by the domestic courts whenever they choose to assert that national security and terrorism are involved . . . The Court attaches significance to the fact that . . . in Canada a more effective form of judicial control has been developed in cases of this type. This example illustrates that there are techniques which can be employed which both accommodate legitimate security concerns about the nature and sources of intelligence information and yet accord the individual a substantial measure of procedural justice”: Chahal v. United Kingdom, (1996) 23 EHRR 413 (ECtHR, Nov. 15, 1996), at [131]. Sadly, however, the UN Human Rights Committee determined in one case that it was sufficient for a state to show “plausible grounds” for invocation of the national security exception to the right to appeal an expulsion decision: Mohammed Alzery v. Sweden, Comm. No. 1416/2005, UN Doc. CCPR/C/88/D/1416/2005, decided Oct. 25, 2006, at [11.10]. See text at note 34.

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counter them by submitting classified material. Being an exception, this provision is subject to restrictive interpretation.172

5.1.4 Substantive Constraints on Expulsion While the Refugee Convention’s insistence on due process before expulsion is clearly important, the most significant advantage of the Refugee Convention is that – in contrast to Article 13 of the Civil and Political Covenant173 – it goes beyond procedural rules to mandate the presumptive immunity from expulsion of refugees lawfully in an asylum state.174 The expulsion of a refugee may be lawfully pursued in only two cases, namely when either “national security” or “public order” grounds require such action. As successfully argued by the representative of the International Refugee Organization, substantive limits on refugee expulsion make ethical and practical good sense: Several representatives had said that there was no reason for granting special privileges to refugees [in relation to expulsion]. He submitted that there were strong grounds for doing so, above all the ground that aliens possessing an effective nationality could return to their country of nationality in case of expulsion, whereas for a refugee it was a matter of life and death, as he had no other country to go to.175

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Grahl-Madsen, Commentary, at 222. “[T]he Covenant contains . . . [no] general prohibition of expulsion . . . Residency abroad is not a right but rather a privilege . . . Art. 13 does not provide for a prohibition of expulsion, but it does set forth certain procedural guarantees”: Schabas, Nowak’s CCPR Commentary, at 335–336. He notes that “proposals for an exhaustive listing of substantive grounds for expulsion met with little acceptance” in the drafting of the Civil and Political Covenant: ibid. at 337. Indeed, one commentary on the Covenant gives its analysis of Art. 13 the title “Procedural Rights Against Expulsion”: Joseph and Castan, ICCPR, at 418. This is because “Article 13 does not provide for substantive freedom from expulsion”: ibid. This is perhaps the most important reason to reject Chetail’s view that Art. 32 of the Refugee Convention has been eclipsed by Art. 13 of the Civil and Political Covenant: V. Chetail, “Are Refugee Rights Human Rights? An Unorthodox Questioning of the Relations between Refugee Law and Human Rights Law,” in R. Rubio-Marin ed., Human Rights and Immigration 19 (2014), at 58. His position that the existence in the Refugee Convention of substantive grounds for expulsion not found in the Covenant is a “negligible [difference] because national security and public order are relatively broad notions” (ibid.) is not sound, as the two grounds are in fact more limited than they might first appear, as described below. In any event, even fungible grounds are better than no grounds at all – the reality under Art. 13 of the Civil and Political Covenant: see Joseph and Castan, ICCPR, at 429. Statement of Mr. Weis of the IRO, UN Doc. E/AC.32/SR.40, Aug. 22, 1950, at 15.

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The drafters therefore agreed that refugees would be entitled to assert both procedural and substantive limitations on the usual right of states to expel noncitizens: [T]he measure of expulsion should be decreed only after regular procedure. Such a safeguard did not, however, appear to be sufficient, for a refugee could then be expelled in due and proper form for even a slight offence. States would have to undertake not to resort to the ultima ratio of expulsion except for very grave reasons, namely, actions endangering national security or public order. Thus the refugee would be protected both in the matter of procedure and in that of grounds, which was not the least important consideration.176

Because an expulsion is lawful only where based on national security or public order grounds, the British effort to expel the Saudi dissident asylum-seeker Mohammed al-Mas’ari in order to safeguard its trade links or to promote international comity177 was in contravention of Art. 32. Only a removal affirmatively grounded in national security or public order concerns, as described below,178 is compatible with the requirements of the Refugee Convention. The clearest situation in which a refugee may lawfully be expelled is when his or her presence in the asylum state poses a risk to that country’s national security.179 Because a threat to national security is also grounds for refoulement under Art. 33(2),180 a refugee expelled on national security grounds may be removed even to his or her country of origin if no alternative destination can be identified.181 The core meaning of “national security” has already been discussed at some length in the context of the right of asylum states to take provisional measures under Art. 9 of the Refugee Convention,182 and noted in relation to the right of states to engage in individuated refoulement.183 The cases most readily identified as justifying expulsion on grounds of national 176 177 178 179

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Statement of Mr. Robinson of Israel, UN Doc. E/AC.32/SR.20, Feb. 1, 1950, at 10. See text at note 23. See text at note 179 (national security) and note 193 (public order). “When the drafters of the 1951 Convention discussed what was to become Art. 32, para. 1, they scarcely reflected upon the meaning of the term ‘national security’”: Davy, “Article 32,” at 1308. See Chapter 4.1.4 at note 510 ff. There are, however, often legal obligations beyond those set by the Refugee Convention which limit the right of a state to return an individual to the risk of persecution: see, in particular, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1465 UNTS 85 (UNTS 24841), adopted Dec. 10, 1984, entered into force June 26, 1987 (Torture Convention), at Art. 3; the Civil and Political Covenant, at Arts. 6 and 7; and the European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 UNTS 221 (UNTS 2889), done Nov. 4, 1950, entered into force Sept. 3, 1953, at Art. 3. See Chapter 3.5.1 at note 669 ff. 183 See Chapter 4.1.4 at note 520.

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security are those involving a refugee who seeks directly to attack the political integrity of the host state. For example, in the discussions leading to the adoption of Art. 32, the Venezuelan representative was emphatic that “young countries . . . subject to internal upheavals and revolutions” would be unlikely to sign the Convention unless guaranteed the right to expel refugees who attacked their basic democratic institutions: Venezuela had experienced disturbances, accompanied by violence, in which refugees from various countries had taken part; the people of Venezuela had suffered a great deal during and following those upheavals and they would not accept a convention for refugees which contained any provisions that would prevent them from defending their own institutions.184

Thus, if Zimbabwe had followed the required procedures before expelling the Central African refugees who were intending to murder key political leaders,185 expulsion on national security grounds may have been reconcilable to Art. 32. Under modern conceptions endorsed by senior courts, the threat to national security need be neither direct nor immediate. Instead, a refugee is understood to pose a risk to the host state’s national security if his or her presence or actions give rise to an objectively reasonable, real possibility of directly or indirectly inflicted substantial harm to the host state’s most basic interests, including the risk of an armed attack on its territory or its citizens, or the destruction of its democratic institutions.186 As such, if Cameroon had respected relevant due process norms (which it sadly did not), it would likely have been entitled to expel any Boko Haram infiltrator in the Nigerian refugee population found to have been engaged in suicide bombings and other deadly attacks on its residents.187 While this test clearly leaves states a substantial margin of appreciation, a threat to national security must be capable of objective justification.188 As the Supreme Court of Canada has put it, the threat to a state’s most basic interests must be “grounded on objectively reasonable suspicion.”189 There is no requirement, though, that the refugee already have been convicted or even charged with a criminal offense. Indeed, as Grahl-Madsen notes, “an alien may offend against national security even if he cannot be considered guilty of any 184 185 188

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Statement of Mr. Perez Perozo of Venezuela, UN Doc. E/AC.32/SR.20, Feb. 1, 1950, at 8. See text at note 42. 186 See Chapter 3.5.1 at note 680. 187 See text at note 43. The American representative to the Ad Hoc Committee was of the view, for example, that there was a difference between the simple declaration of a national emergency by a head of state and what was required to establish national security grounds for the expulsion of a refugee: Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.40, Aug. 22, 1950, at 14. Suresh v. Canada, [2002] 1 SCR 3 (Can. SC, Jan. 11, 2002), at [90].

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crime.”190 Under this approach, and assuming the credibility of the apartheidera South African government’s threats to invade neighboring states which provided asylum to ANC and other refugees,191 their expulsion in line with due process guarantees would not have violated Art. 32.192 Similarly, objection could also not be taken to the expulsion of a refugee whose terrorist acts against other states indirectly pose a credible threat to the security of the host state. The majority of states also favored the inclusion of a second, more fluid ground for expulsion: “public order.” The core concern of the drafters was to allow an asylum state to expel a refugee whose presence posed a risk to the safety and security of citizens. Whereas national security primarily addresses threats emanating from outside the host state’s borders, public order was understood as a general category of concerns focusing on the importance of maintaining basic internal security.193 Refugees who committed serious crimes,194 or who “obstinately refused to abide by the laws,”195 were the 190 192

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Grahl-Madsen, Commentary, at 203. 191 See text at note 41. As Maluwa wrote in relation to one such neighboring state, “Botswana’s commitment and bona fides with regard to the protection of refugees from other States in the region, and in particular those from South Africa, cannot be doubted. Nor, judging from its official pronouncements, can one charge Botswana with a failure to appreciate the duties and obligations incumbent upon it under international law with regard to the granting of asylum and protection to South African and other refugees. Responsibility for the breach of international law in this regard, therefore, must be placed squarely upon South Africa alone”: T. Maluwa, “The Concept of Asylum and the Protection of Refugees in Botswana: Some Legal and Political Aspects,” (1990) 2(4) International Journal of Refugee Law 587, at 607. “[I]n [Venezuela], ‘public order’ was synonymous with internal order, while ‘national security’ implied ‘international order’ . . . [T]he two ideas complemented each other and were closely linked”: Statement of Mr. Perez Perozo of Venezuela, UN Doc. E/AC.32/ SR.20, Feb. 1, 1950, at 18. This led the Israeli delegate to propose “the adoption of the words ‘internal and external national security’ as the words ‘public order’ could in fact give rise to different interpretations”: Statement of Mr. Robinson of Israel, ibid. at 19. This suggestion was not taken up, however, as there was a strong preference among delegates not to abandon the traditional term of art, “public policy.” Even the British representative supported retention of this civil law construct. He “objected to the introduction of new, and hitherto unknown, terms”: Statement of Sir Leslie Brass of the United Kingdom, ibid. Some references to the right of states to expel refugees on public order grounds were not clearly limited to serious offenses. Belgium “pointed out that a refugee who broke the laws also undermined public order”: Statement of Mr. Cuvelier of Belgium, ibid. at 16. Sir Leslie Brass advised that “[i]n the United Kingdom, deportations were ordered on grounds of national security or public order only, which included offences against the law”: Statement of Sir Leslie Brass of the United Kingdom, ibid. at 17. Yet the importance of not authorizing expulsion for “even a slight offence” was insisted upon by the Israeli representative: Statement of Mr. Robinson of Israel, ibid. at 10. See also text at notes 198–203, in which concern was expressed about the potential over-breadth of substitute language that would have authorized the expulsion of refugees for “commission of illegal acts” rather than on public policy grounds. Statement of Sir Leslie Brass of the United Kingdom, UN Doc. E/AC.32/SR.20, Feb. 1, 1950, at 14.

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main objects of public order exclusion under Art. 32. Reference was made, for example, to the right of states to expel a refugee who had committed larceny196 or trafficked in narcotics.197 But there was resistance to limiting the ground only to concerns arising from criminality rather than incorporating the traditional civil law notion of public order.198 In the view of most representatives, a simple entitlement to expel refugees for the “commission of illegal acts”199 was both too broad, and too narrow. It would have been too broad in that some criminal acts really do not pose a serious risk to the peace and stability of the state:200 the Chairman of the Ad 196

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In explaining why he preferred reference to persons who had committed criminal acts to a proposal from the Chairman to replace “public order” by “public safety” expulsion, the American representative noted that “in the United States of America, the term ‘public safety’ was closely related to the term ‘national security,’ and could therefore not be made to cover even such serious offences as larceny”: Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.40, Aug. 22, 1950, at 20. Replying to a Canadian concern, the Chairman of the Ad Hoc Committee insisted that “the term ‘public order’ would certainly cover the deportation of aliens convicted under the [Canadian] Opium and Narcotic Drugs Act. In view of the public injury which resulted from traffic in drugs, there could be no possible objection to that interpretation”: Statement of the Chairman, Mr. Larsen of Denmark, ibid. at 22. The Canadian preoccupation was repeated at the Conference of Plenipotentiaries: Statement of Mr. Chance of Canada, UN Doc. A/CONF.2/SR.14, July 10, 1951, at 18. The British representative, for example, responded to a proposal for deletion of the reference to “public order” in favor of “internal and external national security” by stating that “neither the Chairman nor he himself could accept [that language], as they both had criminal offences in mind”: Statement of Sir Leslie Brass of the United Kingdom, UN Doc. E/AC.32/SR.20, Feb. 1, 1950, at 19. The IRO’s representative then “advised the Committee that if it had in mind criminal offences, it should say so clearly”: Statement of Mr. Weis of the International Refugee Organization, ibid. at 19. This led various delegations, including those of Venezuela, Turkey, and Belgium, to insist that there was no need for additional clarity, as the meaning of “public order” was not in doubt: Statements of Mr. Perez Perozo of Venezuela, Mr. Kural of Turkey, and Mr. Cuvelier of Belgium: ibid. Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.40, Aug. 22, 1950, at 19. In the view of the American representative, refugees “should be expelled only on the grounds that they had committed crimes, which should be as explicitly defined as possible”: Statement of Mr. Henkin of the United States, ibid. at 14. “So far as his own government was concerned, ‘public order’ was directly related to the maintenance of the peace and stability of the State”: Statement of Mr. Perez Perozo of Venezuela, ibid. at 13. Grahl-Madsen suggests that the focus of public order exclusion on grounds of criminality should be persons who have committed crimes which “are particularly dangerous, because they demonstrate contempt for normal human and social values or at least a clear antisocial or reckless attitude on the part of its perpetrators, e.g. poisoning, arson. One may also have to draw a distinction between wilful and negligent acts”: Grahl-Madsen, Commentary, at 214. In line with this approach, UNHCR has opined that “the concept of ‘public order’ in Article 32 . . . does not automatically justify the expulsion of a refugee who has committed or has been convicted of a crime, however serious. The offence has to be sufficiently serious as to constitute a violation of public order and, consequently, a separate finding is required to the effect that the continued presence of the offender is prejudicial to the maintenance of [the] public order of the host State”:

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Hoc Committee mentioned the case of a refugee convicted for “riding a bicycle on a footpath” as an example of a “smaller illegal act”201 that could not justify expulsion on public order grounds.202 The agreement reached on this point calls into question the propriety of the American practice of expelling refugees for having committed even minor crimes such as marijuana possession and traffic offenses.203 On the other hand, it was thought that states ought to be allowed to expel a refugee who had not engaged in criminal activity, but who refused to conform his or her conduct to the basic manners and customs of the host state. Mention was made, for example, of refugees who engaged in political activism against the asylum country,204 though the American delegation thought such concerns would have to amount to a threat to national security before they justified expulsion.205 The Chinese representative, however,

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UNHCR, “Observations on the proposed amendments to the Danish Aliens Act,” Oct. 31, 2016, at [10(ii)]. “It would be better to change the term ‘public order’ to ‘public safety,’ which was also a vague term, and would fail to cover extreme cases on both sides, but would not, like the wording proposed by the representative of the United States of America, cover both extremes and permit the deportation of any refugee who had committed the smallest illegal act”: Statement of the Chairman, Mr. Larsen of Denmark, UN Doc. E/AC.32/SR.40, Aug. 22, 1950, at 19. This suggestion was rejected by the American delegate on the grounds that some forms of criminal conduct which did not endanger public safety (e.g. larceny) should nonetheless be grounds for expulsion: Statement of Mr. Henkin of the United States, ibid. at 20. “But just as a conviction does not . . . in itself justify expulsion, a criminal conviction cannot be considered a condition sine qua non for expulsion”: Grahl-Madsen, Commentary, at 217. See text at note 20. “[T]he political activity of a refugee might also be regarded as undesirable for reasons of ‘public order’”: Statement of Mr. Herment of Belgium, UN Doc. E/AC.32/SR.40, Aug. 22, 1950, at 11. More bluntly, the Venezuelan representative felt that the possibility of expulsion on public order grounds “could be considered as a warning to refugees not to indulge in political activities against the State. It was essential that the term should be retained”: Statement of Mr. Perez Perozo of Venezuela, ibid. at 13. “The representative of Venezuela, who had implied that ‘public order’ in his country meant something related to national emergency, could feel assured that in the opinion of the United States delegation, the requirements of national emergency were taken into account in the term ‘national security’”: Statement of Mr. Henkin of the United States, ibid. at 18. At the Conference of Plenipotentiaries, the delegate of the Netherlands also opposed an understanding of public order expulsion based on “activities of a subversive nature”: Statement of Baron van Boetzelaer of the Netherlands, UN Doc. A/CONF.2/ SR.14, July 10, 1951, at 23. By way of parallel, it is interesting that the New Zealand Court of Appeal determined that “[i]t is also important that the interpretation of the term ‘danger to the security of the country’ takes account of a person’s right to freedom of association and expression”: Attorney General v. Zaoui, [2005] 1 NZLR 690 (NZ CA, Sept. 30, 2004), at [151]; varied on other grounds in Attorney-General v. Zaoui, [2005] NZSC 38 (NZ SC, June 21, 2005).

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offered a particularly striking example of what he viewed as a circumstance in which it would be permissible to expel a refugee on public order grounds: [T]he concept of public order was important to China where manners and customs differed greatly from those of other countries, and also differed from one region to another. He himself came from a mountainous area where husbands were obliged to travel great distances to work, and were able to visit their wives only once in three years. Wives generally remained extremely faithful to their absent husbands, and if any one were to receive a visit from a stranger it would cause a considerable sensation. The concept of public order was important in relation to such peculiarities of circumstance and custom.206

This example was apparently welcomed by the French representative, who “remarked that the observation of the representative of China showed what different interpretations might be given to the notion of public order.”207 The Chairman also stated that “there would be general agreement that, owing to differences of custom, what would be a question of public order in one country would not in another.”208 He offered the additional example of “illegal distillation of spirits, [which] was in some countries merely a fiscal problem, but in others a problem of public order.”209 The various efforts to justify reliance on the traditional, civil law understanding of public order expulsion met with strong opposition from the American representative, Mr. Henkin, who observed that “[h]is main fear was that the term ‘public order’ might mean much more than what it appeared to mean on the surface.”210 He worried that the right to expel a refugee based on public order concerns was so vague that some states would undoubtedly abuse this authority,211 a fear clearly held by the non-governmental community as well.212 Henkin was blunt in asserting that the explanations provided of the content of public order expulsion in civil law states “had not dispelled his 206 207 208 209 210 211

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Statement of Mr. Cha of China, UN Doc. E/AC.32/SR.40, Aug. 22, 1950, at 24. Statement of Mr. Juvigny of France, ibid. Statement of the Chairman, Mr. Larsen of Denmark, ibid. Statement of the Chairman, Mr. Larsen of Denmark, ibid. Statement of Mr. Henkin of the United States, ibid. at 14. “He was glad to hear that, vague though the concept of public order was, it was not liable to abuse, at least in France, Belgium, and Venezuela. He would make no invidious remarks about the possibility of a less liberal application of the term in other countries, but would merely point to the importance of defining legal notions exactly in a legal instrument”: Statement of Mr. Henkin of the United States, ibid. at 18. “[T]he proviso contained in article [32] relating to ‘national security’ and especially that relating to ‘public order’ seemed to his organization to be far too vague, and consequently harmful to the interests of refugees . . . Moreover, the Commission on Human Rights had on several occasions noted that the term ‘public order’ was vague and general and – as indeed history testified – capable of serving as a justification for glaring abuse”: Statement of Mr. Braun of Caritas International, UN Doc. A/CONF.2/SR.15, July 11, 1951, at 5.

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doubts, but had in fact increased them, because of the examples . . . given. It seemed that the term ‘public order’ could be used as a pretext for getting rid of any refugee on the ground that he was, for one reason or another, an undesirable person.”213 While representatives had asserted that there was a clear meaning attached to “public order” in the civil law world,214 the American representative was skeptical that there really was much agreement on the substance of the concept outside a small number of European states.215 It most certainly was a notion that had no resonance in common law states.216 Interestingly, the French delegation conceded the accuracy of much of Mr. Henkin’s concern about the definition of “public order.” France “admitted the contention of the United States representative that the notion of public order might stir up unpleasant memories, since it was on that notion that certain totalitarian States had based their claim to absolute discretionary powers.”217 Moreover, while the civil law states of Europe could look to detailed jurisprudential understandings of the term,218 “the expression ‘public order’ was not interpreted in all countries in the same way . . . Consequently the inclusion of that expression would not . . . restrict the right of expulsion to any considerable extent.”219 Yet it was generally felt that the notion of public order provided states with a necessary source of reassurance, and gave them 213 214

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Statement of Mr. Henkin of the United States, ibid. at 12. Typical of the bald assurances was the statement of the representative of the Netherlands to the Conference of Plenipotentiaries, who “said that the term ordre publique was acceptable to the Netherlands government as its meaning was perfectly clear”: Statement of Baron van Boetzelaer of the Netherlands, UN Doc. A/CONF.2/SR.14, July 10, 1951, at 23. “[C]ontrary to the impression he had formed in earlier discussions in the Committee, the term ‘public order,’ which in British and American law was more or less equivalent to ‘public policy,’ was not so understood in certain other countries”: Statement of Mr. Henkin of the United States, ibid. at 18. The American representative “confessed that his delegation still felt concern at the use of the term ‘public order,’ partly because of its ambiguity, partly because it feared that it embraced too much”: Statement of Mr. Henkin of the United States, ibid. at 11. At the Conference of Plenipotentiaries, the Canadian delegate stated that his government “found some difficulty with regard to the expression ‘public order,’ which was a term which had a more precise legal connotation in continental countries than in common law countries”: Statement of Mr. Chance of Canada, UN Doc. A/CONF.2/SR.14, July 10, 1951, at 18. Even the British government, which had supported use of the ‘public order’ language at the Ad Hoc Committee, took the position at the Conference that “the expression ‘public order’ presented definite difficulties to common law countries, where it did not possess the legal connotation it bore in continental jurisprudence”: Statement of Mr. Hoare of the United Kingdom, ibid. at 24. Statement of Mr. Juvigny of France, UN Doc. E/AC.32/SR.40, Aug. 22, 1950, at 17. “[A]n administrative and judicial case law had been developed such as enabled jurists and even public opinion to know what was meant by ‘public order’”: Statement of Mr. Juvigny of France, ibid. at 17–18. Statement of Mr. Ordonneau of France, UN Doc. E/AC.32/SR.20, Feb. 1, 1950, at 18.

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the flexibility required to accommodate their unique social concerns, as well as to meet future contingencies.220 And in any event, the inclusion of a power to expel on public order grounds was effectively a deal-breaker: [Mr. Herment of Belgium] wondered whether the discussion was not animated by a spirit of mistrust of Governments. After all, the States which would sign and ratify the Convention would undoubtedly have the intention of according reasonably favourable treatment to refugees. He would like to urge that the long accepted notion of public order should not be set aside . . . Powers of expulsion should be left to Governments, even in cases the circumstances of which could not be foreseen, since such might in fact arise. If that were not done, the article would only be accepted with a number of reservations which would deprive it of all value.221

The French representative was, if anything, even more candid. The civil law states with a long tradition of expelling non-citizens on public order grounds simply would not agree to be bound by a treaty that did not allow them to continue these practices: There were laws in existence in which threats or actions prejudicial to public order were explicitly cited as grounds for expulsion. It was naturally not the intention of the Committee that States should be required to alter their legislation on so important a subject, especially at the present time. Accordingly, whatever formula was adopted, the notion of public order would inevitably raise its head in those code law countries where it was traditionally accepted. Any other formula the Committee might endeavour to evolve would therefore run the risk of proving illusory.222

In the end, those who opposed the “public order” clause appear simply to have given in to the impossibility of persuading civil law states to abandon their traditional attachment to public order expulsion.223 Yet it is equally clear that 220

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“There might possibly – though he hoped not – be countries where it was considered to be a man’s private affair if he chose to poison himself with drugs. It would be impossible therefore to define precisely questions of public order for all countries”: Statement of the Chairman, Mr. Larsen of Denmark, UN Doc. E/AC.32/SR.40, Aug. 22, 1950, at 25. Statement of Mr. Herment of Belgium, ibid. at 20. Statement of Mr. Juvigny of France, ibid. at 21. “[S]ince it appeared that in certain countries there was a provision of law that an alien could be expelled on grounds of public order, the only solution to the present difficulties of the Committee would be to retain the present text . . . and perhaps add thereto a number of specific exclusions, stating, for example, that a refugee might not be expelled on grounds of indigency or ill health”: Statement of Mr. Henkin of the United States, ibid. at 21. As Davy notes, “[f]rom the perspective of their differing legal traditions, the American quest for clarity as well as the resistance of the European countries are both understandable: the American delegation was used to immigration laws meticulously enumerating certain classes of excludable and deportable aliens. The delegations of the French-speaking countries, on the other hand, were used to brief statutory provisions based on broad

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the right to expel a refugee based on public order concerns was intended to be conservatively invoked. Not only did the drafters reject Australia’s proposal to amend the English-language version of Art. 32 in order to refer to the broader notion of “public policy”224 – which the Secretariat made clear was the real equivalent of the traditional, broad-ranging civil law notion of “ordre public”225 – but in a spirit of compromise, there was general agreement that public order should be given a narrow interpretation,226 with the travaux préparatoires serving as a definitive point of reference for state parties in interpreting their authority to expel refugees on public order grounds.227

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and vague language, leaving expulsion basically to the discretion of the administrative authorities in charge”: Davy, “Article 32,” at 1288. Statement of Mr. Shaw of Australia, UN Doc. A/CONF.2/SR.14, July 10, 1951, at 22. As such, when Ireland acceded to the Convention in 1956, it quite rightly felt the need to enter a formal understanding that it “understands the words ‘public order’ in article 32(1) . . . to mean . . . ‘public policy’” in order to avoid the strictures on its expulsion authority otherwise implied by the narrower notion of “public order”: https://treaties.un .org, accessed Dec. 21, 2020. “In civil law countries, the concept of ‘l’ordre public’ is a fundamental legal notion used principally as a basis for negating or restricting private agreements, the exercise of police power, or the application of foreign law. The common law counterpart of ‘l’ordre public’ is not ‘public order,’ but rather ‘public policy.’ It is this concept which is employed in common law countries to invalidate or limit private agreements of the application of law. In contrast to this concept of public policy, the English expression ‘public order’ is not a recognized legal concept. In its ordinary English sense, it would presumably mean merely the absence of public disorder. This notion is obviously far removed from the concept of ‘l’ordre public’ or ‘public policy’”: UN Doc. E/ L.68, tabled at the Conference of Plenipotentiaries by its Executive Secretary, UN Doc. A/ CONF.2/SR.14, July 10, 1951, at 19–20. Mr. Robinson of Israel made the point that “it had to be remembered that considerations of national security and public order were interpreted differently in different countries. In the sense of a narrow interpretation, however, there could be no argument in favour of treating refugees differently from other aliens”: Statement of Mr. Robinson of Israel, ibid. at 16. His speech was hailed by the French representative as a “brilliant statement”: Statement of Mr. Juvigny of France, ibid. at 17. Interestingly, Davy’s analysis of relevant jurisprudence concludes that “when domestic courts are asked to interpret domestic provisions implementing the concept of [public order] . . . the answers are less colourful and diverse than one would expect,” focused mainly on persons convicted of serious crimes: Davy, “Article 32,” at 1311. She concludes “that the vagueness of the term is a concern for academics, not for practitioners in immigration law”: ibid. at 1312. At the first session of the Ad Hoc Committee, the Belgian representative “asked that the discussion should be recorded in the summary record of the meeting so as to make clear what the Committee understood by the concept of public order”: Statement of Mr. Cuvelier of Belgium, UN Doc. E/AC.32/SR.20, Feb. 1, 1950, at 19. Similarly, at the Conference of Plenipotentiaries, the British representative noted that “if any difficulty occurred as to the meaning of [‘public order’], it would presumably arise in connexion with some specific case and the court concerned would have the records of the proceedings leading up to the adoption of the Convention. It would therefore be in a position to ascertain the interpretation placed on those words”: Statement of Mr. Hoare of the United Kingdom, UN Doc. A/CONF.2/SR.14, July 10, 1951, at 24.

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Of particular importance in this regard, it was agreed that basic affronts to public morality or social norms of the asylum country228 are to be deemed grounds for expulsion only in truly grave cases.229 In Grahl-Madsen’s words, “it was obviously the intention of the drafters that expulsion should only be resorted to where the continued presence of the refugee would to some extent upset the very equilibrium of society.”230 Most specifically, there is no doubt that an effort to expel a refugee on grounds of poverty or ill health – matters felt by some to fall within the traditional civil law ordre public expulsion authority – cannot be reconciled to the requirements of the Convention.231 At the first session of the Ad Hoc Committee, the Danish representative insisted that it must be clear that “social considerations, such as destitution, should not come under the heading of public order.”232 Mr. Cuvelier of Belgium agreed, explaining that “it was naturally impossible to expel a refugee for economic reasons, as in the case of destitution he could not be returned to his country of origin as could an ordinary emigrant.”233 The rationale for a distinctive approach to the expulsion of refugees was eloquently explained by the Israeli representative:

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While an Egyptian draft which made specific reference to expulsion on grounds of “public morals” was not pursued (UN Doc. A/CONF.2/44), and the representative of the Netherlands voiced his concern with any refugee expulsion predicated on moral concerns (Statement of Baron van Boetzelaer of the Netherlands, UN Doc. A/CONF.2/SR.14, July 10, 1951, at 23), the British representative to the Conference of Plenipotentiaries affirmed that “the United Kingdom had accepted the words ‘public order’ in international instruments, while making a reservation that they were deemed to include matters relating to crime and public morals. That interpretation had not so far been challenged”: Statement of Mr. Hoare of the United Kingdom, ibid. at 24. “States would have to undertake not to resort to the ultima ratio of expulsion except for very grave reasons, namely, actions endangering national security or public order. Thus the refugee would be protected both in the matter of procedure and in that of grounds, which was not the least important consideration”: Statement of Mr. Robinson of Israel, UN Doc. E/AC.32/SR.20, Feb. 1, 1950, at 10. Grahl-Madsen, Commentary, at 209. As Grahl-Madsen notes, “[t]he drafters . . . were on the whole keenly aware of the vagueness of the term ‘public order’ in general. However, they expressed clearly their desire to delimit[] the meaning of the term as used in Article 32. Mr. Rochefort’s emphatic statement in the Conference of Plenipotentiaries, to the effect that it would not be worthwhile to take part in the work of the Conference if it were not clear that ‘public order’ could not justify expulsion of indigent refugees [see text at note 242] is clear proof that [it was] desired to give the term a technical meaning, without regard to the interpretation given the term in the municipal law of various countries”: ibid. at 205. Davy thus sensibly concludes that public order concerns do “not come into play when the individuals concerned [are] sick, unemployed, or poor, and thus in need of social assistance or other social benefits”: Davy, “Article 32,” at 1311. Statement of Mr. Larsen of Denmark, UN Doc. E/AC.32/SR.20, Feb. 1, 1950, at 16. Statement of Mr. Cuvelier of Belgium, ibid.

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If refugees were not nationals in the political sense of the country where they were resident, however, they were in a moral sense . . . [C]ountries should accept refugees as human beings, with all the infirmities and weaknesses inherent in the human condition.234

All the members of the Ad Hoc Committee who spoke to the question agreed with the view that no refugee should ever be expelled “on grounds of indigency or ill health.”235 But because of concern that a formal limitation to this effect in Art. 32 could encourage states to take an aggressive attitude toward forms of public order expulsion not expressly disallowed,236 it was decided simply to note this implied limitation in the Committee’s report.237 The importance of protecting refugees from public order expulsion on social grounds was emphasized again at the Conference of Plenipotentiaries. Every attempt to assert the propriety of public order expulsion by reason of ill health or poverty was soundly denounced by, in particular, the French representative. An Egyptian amendment that would have authorized the expulsion of a refugee “because he is indigent and is a charge on the State”238 led Mr. Rochefort to assert that “[p]overty was not a vice, and indigence could not be considered a crime.”239 234 235

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Statement of Mr. Robinson of Israel, UN Doc. E/AC.32/SR.40, Aug. 22, 1950, at 16. Statement of Mr. Henkin of the United States, ibid. at 21. See also Statement of Mr. Juvigny of France, ibid.; Statement of Sir Leslie Brass of the United Kingdom, ibid. at 23; and Statement of Mr. Giraud of the Secretariat, ibid. at 26. “If . . . a country really had the intention of expelling refugees because, by reason of their state of health, for instance, they were a burden on the public purse, such a country would of necessity be obliged, when ratifying the Convention, to make reservations with regard to article [32] . . . [H]e considered that however vague the notion of public order might be, it . . . offer[ed] greater safeguards for refugees than would be given by a hastily drafted formula which would not cover all possible cases and which, moreover, would lend itself to interpretation a contrario”: Statement of Mr. Juvigny of France, ibid. at 22. See also Statement of the Chairman, Mr. Larsen of Denmark, ibid. at 26, who expressed his concern “that the Committee might be considering the inclusion in an international convention of a provision which appeared to suggest that ‘social reasons’ were a question of public order.” “[S]ince there was obvious agreement that ‘social reasons’ should not be grounds [for] expulsion, the only question which remained was whether to provide specifically for such exclusion, or to let the records of the Committee indicate that interpretation of ‘public order.’ He felt that the Drafting Committee should take that decision”: Statement of Mr. Henkin of the United States, ibid. at 26. With the proposal for an explicit reservation defeated on a 5–2 (4 abstentions) vote (ibid. at 27), the Committee’s report stipulated that “[t]he phrase ‘public order’ would not . . . permit the deportation of aliens on ‘social grounds’ such as indigence or illness”: Ad Hoc Committee, “Second Session Report,” at 13. UN Doc. A/CONF.2/44. Statement of Mr. Rochefort of France, UN Doc. A/CONF.2/SR.14, July 10, 1951, at 21. See also the remarks of Baron van Boetzelaer of the Netherlands, ibid. at 23: “He hoped the Conference would not adopt the Egyptian amendment which introduced somewhat indefinite concepts . . . He feared the adoption of such an amendment would excessively restrict the freedom of refugees.” (In addition to its provisions on expulsion for reasons of indigence, the Egyptian amendment would have authorized expulsion on grounds of, for example, subversion, public morality, and health.)

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The Egyptian proposal was swiftly withdrawn.240 The Canadian government’s rather apologetic effort to safeguard its domestic laws authorizing the discretionary expulsion of refugees who became public charges or who were committed to psychiatric institutions241 prompted a similarly emphatic rebuke: The French delegation could not admit that the indigence of a refugee could constitute one of those reasons [for expulsion], and, if the idea of indigence was to be interpreted as a factor detrimental to public order, would no longer consider it worthwhile to take part in the work of the Conference. In France, indeed, refugees and persons who were a charge on the State were frequently synonymous terms. Tens of thousands of people were in receipt of assistance of that kind . . . If there was neither the desire nor the courage on the part of governments to embark upon the legislative changes required by the application of the Convention, it seemed pointless to draft it.242

Canada, like Egypt, readily conceded the force of the French government’s argument.243 Undeterred, the Australian delegate insisted that states should be allowed to expel refugees “for instance, when the alien became an inmate of a charitable institution or a mental asylum.”244 Once more, the French representative replied caustically that “the fact that a refugee was penniless should most certainly not constitute one of the reasons which . . . would justify the expulsion of a refugee; on the contrary, the French Government felt it was a fundamental reason for showing greater leniency.”245 Australia did not press its point. In the end, there was a general recognition that sanctioning a right to expel refugees on grounds of poverty would create a vicious circle that could deter a state party from meeting its duty to provide refugees with basic social assistance.246 Taking account of the prevailing view that not even aliens in general 240

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The Egyptian representative “noted with regret that his amendment did not seem to command general support . . . He therefore withdrew it”: Statement of Mr. Mostafa of Egypt, ibid. at 25. “In all frankness, however, he must state that Canadian law – and probably the laws of other countries too – provided in . . . discretionary clauses for deportation on the grounds that the person concerned had become a public charge or was an inmate of a mental asylum or a public charitable institution”: Statement of Mr. Chance of Canada, UN Doc. A/CONF.2/SR.15, July 11, 1951, at 8. Statement of Mr. Rochefort of France, ibid. at 8–9. The Canadian representative “heartily endorsed the French view that expulsion on the grounds of indigency alone would be entirely out of keeping with the ideals and hopes entertained by the Conference. He had merely pointed out how difficult it would be to amend the relevant Canadian legislation, and could only repeat that he could conceive of no circumstances in which the Canadian authorities would expel a refugee on grounds of indigency alone”: Statement of Mr. Chance of Canada, ibid. at 9. Statement of Mr. Shaw of Australia, ibid. at 11. Statement of Mr. Rochefort of France, ibid. at 11. The French representative “apologized if he had expressed himself too forcefully; but he nevertheless wished to emphasize that the French delegation had no intention of concluding a one-sided bargain which, for the French Government, would mean the assumption

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should be expelled on grounds of indigence247 and of the legal obligation to meet at least the basic needs of refugees,248 the British representative aptly concluded that “[t]he discussion had been useful in making it clear that the words ‘public order’ could not be construed as including mere indigency.”249 Even if the drafters had not been clear that a conservative understanding of the public order basis for expulsion should govern, modern European understandings of public order have in any event evolved in a comparably restrictive fashion. Most important, it is now clear that the mere commission of a crime without additional evidence of a fundamental threat is not grounds for expulsion.250 Rather, as the Court of Justice of the European Union determined, a risk to ordre public presupposes, in any event, the existence, in addition to the perturbation of the social order which any infringement of the law involves, of a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society [emphasis added].251

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of multilateral obligations with respect to countries the legislation of which would not grant refugees rights equivalent to those which the French Government would undertake to guarantee them upon signing the Convention. It was by no means a theoretical consideration, since France very frequently had to take in refugees who had been expelled from other countries simply because they were penniless, or possibly, stateless”: Statement of Mr. Rochefort of France, ibid. at 12. This led the Canadian delegate to reply that he “regretted that he had caused so much trouble”: Statement of Mr. Chance of Canada, ibid. The President referred to resolutions of the Economic and Social Council which recommended against expulsion based on indigency: Statement of the President, Mr. Larsen of Denmark, ibid. at 9–10. See Chapters 4.4 and 6.3. Statement of Mr. Hoare of the United Kingdom, UN Doc. A/CONF.2/SR.15, July 11, 1951, at 10. One possible exception, noted by Grahl-Madsen, is the situation where a refugee sets out explicitly to make himself or herself a public charge. “The refugee who is able to work and still continually refuses to do so with the clear intent of living off public funds may, under certain circumstances, set such a bad example that it might seem necessary to apply sanctions of some kind or another. But it goes without saying that the situation must be nothing short of extraordinary in order to justify the invoking of public order – as understood in the Refugee Convention – in such a case”: Grahl-Madsen, Commentary, at 211. Belgium, for example, insisted that only refugees “convicted of a fairly serious offence” should be subject to public order expulsion: Statement of Mr. Herment of Belgium, UN Doc. E/ AC.32/SR.40, Aug. 22, 1950, at 11. Most important, the report of the second session of the Ad Hoc Committee records the view that Art. 32 “would permit the deportation of aliens who had been convicted of certain serious crimes where in that country such crimes are considered violations of ‘public order’”: Ad Hoc Committee, “Second Session Report,” at 13. See also details of the objections voiced to the American proposal which would have allowed for the expulsion of refugees who had committed any criminal act: text at notes 198–203. GrahlMadsen helpfully concludes that “only where normal punishment could not save the maintenance of public order or help to restore it would one resort to the measure of expulsion”: Grahl-Madsen, Commentary, at 208. HT v. Land Baden-Württemberg, Dec. No. C-373/13 (CJEU, June 24, 2015), at [79]; JN v. Netherlands, Dec. No. C-601/15 PPU (CJEU, Feb. 15, 2016), at [65]; K v. Netherlands, Dec. No. C-331/16 (CJEU, May 2, 2018), at [41].

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This understanding that there needs to be a “genuine” threat to “one of the fundamental interests of society” makes clear why Zambia was not entitled to expel the refugees protesting government corruption at the Meheba camp.252 Not only would it be extremely difficult to show that the protest posed a sufficiently grave social risk, but there is surely nothing “genuine” about a perceived threat arising only from the expelling government’s unhappiness about its corrupt practices having been exposed. Just how salient must the reasons of national security or public order be in order to justify the expulsion of a refugee? The Secretary-General’s draft of Art. 32 recommended the standard from the 1933 Refugee Convention, namely that expulsion be “dictated by” reasons of national security or public order.253 The alternative formulation proposed by the Agudas Israel World Organization, which was selected as the Ad Hoc Committee’s working draft,254 used what may on first impression appear to be less demanding language: “save on” grounds of national security.255 It is the latter formulation (“save on”) that was adopted.256 Yet both Grahl-Madsen257 and Stenberg258 take the view that there is no reason to suggest that the use of this form of words was intended to deviate from the traditional understanding that the host state must show some imperative or genuine necessity for expulsion, rather than simply that there is a plausible case for removal on grounds of national security or public order. 252 254 255

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See text at note 35. 253 Secretary-General, “Memorandum,” at 45. See text at note 130. As previously described (see text at note 130), the recommendation of the Agudas Israel World Organization was that the expulsion of refugees be subject to either procedural or substantive limitations. The latter option provided that a refugee could not be expelled “save on grounds of national security”: “Communication from the Agudas Israel World Organization,” UN Doc. E/C.2/242, Feb. 1, 1950, at [2]. Given the history of the drafting of Art. 32, it is probable that when the Chairman of the Ad Hoc Committee recommended what became the final language of Art. 32 (“save on grounds of national security or public order”: Statement of the Chairman, Mr. Chance of Canada, UN Doc. E/AC.32/SR.20, Feb. 1, 1950, at 17) he was simply following the phrasing of the Agudas draft from which the Committee had been working, and which had not been said to posit any shift from traditional evidentiary standards. “[T]here was hardly any intention behind the change of wording. And in view of the meaning of the terms ‘national security’ and ‘public order,’ it seems possible to submit that the change of wording has not caused any change of meaning. If the concepts of national security and public order are to be understood in the sense that they imply a public necessity to rid oneself of the objectionable person, it is clear that it does not make any difference whether one uses the words ‘dictated by’ or simply says ‘on grounds of’”: GrahlMadsen, Commentary, at 199. “The words ‘are dictated by’ in the 1933 Convention serve, much more than the corresponding wording of Article 32(1) of the 1951 Convention, to stress the ultima ratio character of the exceptions. Nevertheless, it is quite clear, on the basis of the preparatory work of the 1951 Convention, that the change of wording in Article 32(1) was not intentional”: Stenberg, Non-expulsion, at 132.

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In any event, the words “save on” surely imply an evidentiary imperative, albeit one that might be thought somewhat less demanding than the “dictated by” alternative. As Grahl-Madsen observes, under Art. 32(1) “expulsion is not justified unless it will have a salutary effect with regard to [national security or public order]. It is not something to which one [should] resort lightly, but rather . . . one must consider whether the measure will serve its end – in other words, that it is necessary.”259 In line with modern understandings of necessity, Davy thus sensibly calls for a proportionality analysis to give effect to the fact that “the delegates consistently thought of weighty reasons justifying expulsion.”260 These interpretations are in line with the view of UNHCR’s Executive Committee that “expulsion measures against a refugee should only be taken in very exceptional circumstances and after due consideration of all the circumstances.”261

5.1.5 Right to Non-coercive Departure Even if a determination is made that reasons of national security or public order require a refugee’s expulsion, it does not follow that the host state may immediately effect the refugee’s removal. First and most critically, the safeguards against refoulement described above continue to apply unless the more exacting standards of Art. 33(2) for removal to a country where there is a risk of being persecuted have been met.262 While this constraint is unlikely to pose a difficulty in national security cases,263 the combined effect of Arts. 33(2) and 32 is that all but the most egregious forms of public order expulsion are effectively proscribed unless removal can be effected to a non-persecutory state.264 Because it is ordinarily only the refugee’s country of origin (in which 259 261 262

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Grahl-Madsen, Commentary, at 200. 260 Davy, “Article 32,” at 1312. UNHCR Executive Committee Conclusion No. 7, “Expulsion” (1977), at [(c)]. See text at note 46 ff. Indeed, the French representative to the Ad Hoc Committee remarked that the provisions of what became Art. 32(3), allowing refugees subject to expulsion a reasonable period within which to identify a state willing to accept them, were a useful practical means of meeting the duty of non-refoulement in such circumstances. “It had, in fact, been agreed that a refugee could not be sent back to a country where his life would be threatened. But a refugee who had been expelled from one country had little chance of being admitted elsewhere”: Statement of Mr. Ordonneau of France, UN Doc. E/ AC.32/SR.20, Feb. 1, 1950, at 21. This is because Art. 33(2) authorizes particularized refoulement in the case of a refugee “whom there are reasonable grounds for regarding as a danger to the security of the country in which he is,” a test which is essentially indistinguishable from Art. 32’s authorization for the expulsion of a refugee “on grounds of national security” so long as due process norms are respected (including the substantive due process norm prohibiting unreasonable or arbitrary action). See Chapter 4.1.4 at note 511. This is because Art. 33(2), unlike Art. 32(1), does not allow particularized refoulement on grounds of public order per se. Only a subset of public order concerns – namely, those relating to a person who “having been convicted by a final judgment of a particularly

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the risk of being persecuted exists) to which return may be effected as of right, the ability to expel a refugee found to pose a lesser public order risk may therefore be foreclosed as a practical matter.265 Second, in line with the position that the expulsion of a refugee must clearly be a matter of final recourse, Art. 32(3) expressly requires the state contemplating expulsion to grant the refugee a “reasonable” reprieve for purposes of organizing his or her own admission to some other (presumably safe) country. This provision is innovative in two ways. In contrast to earlier conventions, it imposes a duty on state parties to delay expulsion while the refugee pursues his or her own options, rather than simply acknowledging the logic of delay.266 In addition, while the Secretary-General’s draft had predicated the right to secure a delay of expulsion solely on non-receipt of the authorizations or visas needed to enter another country,267 Art. 32(3) as adopted is not limited in this way.268 Its broader scope is rather intended to recognize that even when permission to enter another state has been received, an additional delay in departure may be required to take account of compelling personal reasons, such as “a pregnant wife or a sick child.”269 Thus, as Davy suggests,

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serious crime, constitutes a danger to the community of [the host] country” – is a basis for refoulement. See Chapter 4.1.4 at note 542 ff. See Weis, Travaux, at 323: “No expulsion order may be carried out unless another country is willing to admit [the] refugee.” The Belgian representative had observed that the wording proposed by the SecretaryGeneral “afforded no guarantee to refugees, and left governments free to act as they pleased, in so far as the refugees were concerned”: Statement of Mr. Cuvelier of Belgium, UN Doc. E/AC.32/SR.20, Feb. 1, 1950, at 22. The final wording of the paragraph as ultimately adopted was proposed by the American representative to the Ad Hoc Committee who “asked whether the Committee thought it advisable to include in article [32] certain words which, without placing any obligation on the High Contracting Parties, would express the hope that any refugee . . . would have the opportunity of trying to obtain legal admission into another country before the expulsion order was put into effect”: Statement of Mr. Henkin of the United States, ibid. at 23. The proposal which Mr. Henkin then drafted (UN Doc. E/AC.32/L.23) actually went farther, using the mandatory form “shall” to define the duty to allow a refugee to seek admission to another state. The approach advocated by the Secretary-General’s draft had provided simply for the right of states to impose constraints on refugees allowed to remain in the country while exploring options to expulsion. See Secretary-General, “Memorandum,” at 45. The relevant part of the draft defined the beneficiary class as refugees “who are unable to leave its territory because they have not received, at their request or through the intervention of Governments or through the High Commissioner for Refugees or nongovernmental agencies, the necessary authorizations and visas permitting them legally to proceed to another country”: Secretary-General, “Memorandum,” at 45. The Danish and French representatives took the view that this limitation was superfluous: Statements of Mr. Larsen of Denmark and Mr. Ordonneau of France, UN Doc. E/AC.32/ SR.20, Feb. 1, 1950, at 21. Statement of Mr. Larsen of Denmark, ibid.

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Reasonableness is primarily to be judged against the conditions and prospects for gaining admission to another country . . . [R]easonableness mostly depends on three questions: Within what timeframes can the applicants realistically expect to get an answer from the authorities of other States? How many applications are they allowed to launch? Are there any personal circumstances militating against a speedy departure?270

In line with this formulation, Art. 32(3) should be interpreted in light of its primary purpose to enable refugees to pursue non-coercive departure options.271 Thus, the American drafter of the paragraph readily conceded the logic of the British representative’s point that states were under no obligation to grant refugees a stay of expulsion if the refugee had already sought and secured valid documentation for entry into a safe country to which expulsion could be effected.272 Nor is there a duty to grant refugees such a prolonged delay that their travel documents expire, making their expulsion a practical impossibility.273 During a delay in effecting expulsion, state parties may “apply . . . such internal measures as they deem necessary.”274 It is clear that the drafters were 270 271

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Davy, “Article 32,” at 1322. “Art. 32 obliges States to respect preferences and arrangements brokered by the individual [refugee] concerned: refugees under an order of expulsion must be allowed to avoid forcible removal by searching for, and possibly, securing their admission into another country”: ibid. at 1282. The British representative had expressed his concern that “the wording of the proposed new paragraph was slightly too sweeping. For example, in some cases when a refugee left a country it had been agreed that he could return if he wished within a certain time limit. If the country where he went decided to expel him and had to allow a ‘reasonable period’ to elapse before enforcing that decision, the time limit within which he was allowed to return to the first country might have expired in the interval”: Statement of Sir Leslie Brass of the United Kingdom, UN Doc. E/AC.32/ SR.21, Feb. 2, 1950, at 3. The American representative replied succinctly that “when there was a country prepared to admit the refugee, it would be unnecessary to grant him a reasonable period within which to seek legal admission”: Statement of Mr. Henkin of the United States, ibid. “It was obvious that if the travel document of a refugee returnable to another country had almost expired, he could not be given the same opportunity to find another country willing to receive him as a refugee whose travel document was still valid for a considerable period”: Statement of Sir Leslie Brass of the United Kingdom, UN Doc. E/AC.32/SR.40, Aug. 22, 1950, at 30. States are granted a substantial margin of appreciation in deciding what internal measures should be taken. “The second sentence of para. 3 is less liberal than Art. 31, para. 2, first sentence: the former speaks of measures as ‘they may deem necessary’ . . . while the latter mentions measures ‘which are necessary’ . . . The difference is in the subjective appraisal of the measures: in the case of Art. 31, they must appear to be necessary to an objective observer . . . [Under] Art. 32, it suffices if the competent authorities consider them to be required”: N. Robinson, Convention relating to the Status of Refugees: Its History, Contents and Interpretation (1953) (Robinson, History), at 159–160.

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of the view that such measures might include detention.275 But since a refugee availing himself or herself of the limited rights set by Art. 32(3) “may, for at least some time, be considered to be ‘lawfully in’ the territory of the host country,”276 constraints would be lawful only if aliens generally in the same circumstances would have their freedom of movement comparably constrained; under Art. 26 of the Refugee Convention, no refugee-specific constraints on freedom of movement may be imposed.277 More generally, Art. 32(3) would be contravened if the constraints imposed would effectively negate the refugee’s ability to pursue his or her applications for onward travel as an alternative to expulsion.278 To summarize, Art. 32 is a supplement to the protection against refoulement set by Art. 33. It is intended to limit the right of states to expel refugees to even non-persecutory states on both procedural and substantive grounds. At a procedural level, the expulsion of a refugee may be ordered by an administrative agency, but the refugee must be guaranteed the right to appeal that decision to an authority of some seniority which has the power to consider all the circumstances of the case, including the refugee’s special vulnerabilities and rights, and to issue an authoritative decision governing expulsion. The appeal must moreover be conducted in line with norms of due process, including both the requirements of procedural fairness and substantive protections against a result not based on law, not related to the true objects of Art. 32, or which is otherwise unreasonable, arbitrary, or capricious. Even where compelling reasons of national security are demonstrated, only some due process rights – to submit evidence, to appeal, or to be represented – may be constrained, and even then only to the extent truly necessary. Substantively, the expulsion of a refugee is lawful only if shown to be required by considerations of national security or public order. Expulsion on the basis of national security requires the host state to show an objective, reasonable possibility that the refugee’s actions or presence expose the host 275

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The Chairman of the Ad Hoc Committee expressed his worry that “temporary detention might constitute a punitive measure for deported refugees who could not proceed elsewhere”: Statement of the Chairman, Mr. Chance of Canada, UN Doc. E/AC.32/ SR.20, Feb. 1, 1950, at 22. The representative of the IRO pointedly responded “that a refugee would not regard a period in prison or in an internment camp as a punitive measure, as he might otherwise run the risk of being sent back to a country where his life would be threatened”: Statement of Mr. Weis of the International Refugee Organization, ibid. While Mr. Weis’ assertion is not legally correct in view of the continuing force of Art. 33, his essential point – that detention while arranging a preferred departure option is likely to be seen by a refugee as preferable to expulsion – is nonetheless sound. Davy, “Article 32,” at 1324. 277 See Chapter 5.2. Robinson notes that the restrictions “cannot be of such nature as to make it impossible for the refugee to secure admission elsewhere because the Convention considers expulsion a measure to be taken only if the refugee is unable to leave the country on his own motion”: Robinson, History, at 160.

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state to the risk of direct or indirect substantial harm to its most basic interests. This test would be met, for example, where there is a real risk of an armed attack on that state’s territory or its citizens, or of the destruction of its essential democratic institutions. Expulsion may also be based on public order concerns – a term of art not synonymous with the wide-ranging historical civil law notion of ordre public. Under the Refugee Convention, relevant public order concerns are those which bespeak a threat to the internal security of the host country. Public order concerns may be based, for example, on the fact that a refugee poses an ongoing threat because he or she has committed a serious crime or is a recidivist, or that he or she has engaged in activity which amounts to a truly grave affront to public morality or social norms. But social concerns such as poverty or ill health are not to be invoked as public order grounds to expel a refugee. Ultimately, even a refugee found amenable to expulsion may not be immediately removed: if he or she wishes an opportunity to organize onward movement, a reasonable reprieve must be granted to enable the refugee to make the necessary arrangements.

5.2 Freedom of Residence and Internal Movement The range of constraints on freedom of movement to which refugees may be subjected immediately upon arrival in any asylum state has been addressed in Chapter 4.279 Detention upon arrival is particularly common in the case of refugees who come as part of a mass influx.280 In addition, governments sometimes provisionally detain arriving refugee claimants believed to pose a risk to their own safety or security, whose identity is unclear, or who have yet to provide authorities with the basic information needed in order to begin the process of verifying their claim to refugee status. The focus in this section is instead on limitations on freedom of residence and internal movement that may be imposed not at the moment of arrival, but rather once the refugee is admitted to procedure to verify his or her refugee status, is granted some form of time-limited permission to stay in the host state, or – as in many less developed countries – is simply allowed to remain. Despite the explicit or tacit authorization granted to stay in the reception country in each of these circumstances, limits on the right to decide where to live or on internal travel are still at times imposed. Indeed, so pervasive is the belief that refugees may lawfully be confined away from local populations that 279 280

See Chapter 4.2.4. Regrettably, however, “[c]amps that were initially set up as temporary responses to mass influx often evolve into permanent settlements, where new refugees are also expected to live”: N. Maple, “Rights at Risk: A Thematic Investigation into how States Restrict the Freedom of Movement of Refugees on the African Continent,” UNHCR: Research Paper No. 281, Oct. 2016 (Maple, “Rights at Risk”), at 2.

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outrage has at times been expressed when refugees seek even a modicum of mobility. For example, the US President described the practice of releasing refugees and other non-citizens from detention pending court proceedings as “ridiculous. If they touch our property, if they touch our country, essentially, you catch them and you release them into our country. That’s not acceptable to anybody.”281 In the result, some developed countries – including both the United States282 and Australia283 – routinely continue the imprisonment of many refugees even after they have complied with all formalities required to investigate their claims to protection. Refugees submitting their claims in Ceuta and Melilla have been detained even after passing the admissibility phase, sometimes for years, despite the Spanish courts’ rejection of that policy.284 Refugees arriving in Hungary have been confined to converted shipping containers for the duration of the status determination process, including appeals.285 In many parts of the less developed world, even long-staying refugees may be indefinitely confined to camps. Kenya and Sudan, for example, generally 281

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J. Timm, “Fact Check: Trump’s Misleading Claims about ‘Catch and Release,’” NBC News, May 2, 2018. See Chapter 4.2 at note 876. The 2004 Intelligence Reform and Terrorist Prevention Act “authorized the construction of approximately 40,000 additional detention bed spaces . . . [A]sylum seekers will almost inevitably remain in a US detention facility awaiting a credible fear interview and final adjudication of their claims”: V. Woodman de Lazo, “The Morton Memo and Asylum Seekers: An Overview of the US Mandatory Detention Policy,” (2013–2014) 48 New England Law Review 775, at 782–783. See Chapter 4.2 at note 867. The Australian practice of holding refugee claimants indefinitely in both onshore and offshore detention centers has repeatedly come under fire from, in particular, the UN Working Group on Arbitrary Detention: B. Doherty, “UN Body Condemns Australia for Illegal Detention of Asylum Seekers and Refugees,” Guardian, July 7, 2018. “Due to the interpretation that the administration gives to the special regime of the two autonomous cities [of Ceuta and Melilla], these applicants have to wait for the decision regarding the admissibility of their claim in order to be transferred to the Spanish peninsula and its asylum reception system, together with an authorisation issued by the National Police allowing them to be transferred to the mainland. Limitations are also applied to asylum applicants who pass the admissibility phase, who are entitled to free[dom] of movement in the rest of the Spanish territory. These limitations are informally imposed on asylum seekers. This limitation has been declared unlawful by Spanish courts, affirming the right to freedom of movement of all asylum seekers within the Spanish territory on more than 18 occasions since 2010. Following on from established case law, the Superior Court (TSJ) of Madrid delivered three new interim measure orders in 2018, holding again once asylum seekers pass the admissibility phase, they must be considered as documented, and for this reason their freedom of movement cannot be restricted. Until now, however, no measure has been taken regarding this issue”: Asylum Information Database, “Country Report: Spain 2018” (2018), at 58 (footnotes omitted), in www .asylumineurope.org, accessed Mar. 1, 2020. See P. Wintour, “Hungary to Detain all Asylum Seekers in Container Camps,” Guardian, Mar. 7, 2017.

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restrict refugees to camps and criminalize any attempt to escape from them.286 Indeed, Kenya has gone so far as to engage in mass round-ups of Somali refugees living in Nairobi on the pretext that those targeted were responsible for attacks on civilians by unknown perpetrators.287 Authorities then relocated those detained to its already overcrowded camps, despite the High Court’s rejection of a similar plan just one year prior to the operation.288 Burmese refugees have been forced to remain in camps along Thailand’s border for decades; many are born there and never leave.289 Persons apprehended outside designated camps are sent to immigration detention centers where those who cannot afford to pay their way out may languish indefinitely or, worse, be returned to their country of origin.290 Even in countries that traditionally allow refugees to live where they wish, security concerns may result in the forced relocation of refugees to camps – invoked, for example, by Liberia when it opted to detain some 10,000 refugees in camps in 2012.291 Forcible residence in, or relocation to, refugee camps is not always the result of direct coercion, but may sometimes be achieved indirectly. For example, South Sudanese officials used their control of relief supplies, particularly food, as a means of inducing reluctant Sudanese refugees in the border town of Yida to “accept” relocation to its official camp in Ajuong Thonk. Arguing that relocation was necessary because of Yida’s proximity to border fighting, the policy was supported and facilitated by UNHCR and other humanitarian organizations.292 Upon the official closure of the Manus Island offshore detention facility used to house refugees apprehended by Australia, the withdrawal of food, water, and other essentials eventually forced resistant detainees to relocate to their new facility near Lorengau town,293 despite repeated attacks by the local population.294 Far from the “open” accommodation they were 286 287 288 289

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Maple, “Rights at Risk,” at 23. Human Rights Watch, “Kenya: Halt Crackdown on Somalis,” Apr. 11, 2014. Ibid.; Human Rights Watch, “Kenya: End Abusive Round-Ups,” May 12, 2014. BurmaLink, “Refugee Camps,” Apr. 27, 2015. “Authorities continued to treat refugees and asylum seekers from Burma who lived outside of designated border camps, including Rohingya boat arrivals, as illegal migrants . . . Persons categorized as illegal migrants are legally subject to arrest and detention”: United States Department of State, 2016 Country Reports on Human Rights Practices: Thailand, Mar. 3, 2017. Human Rights Watch, “Ad Hoc and Inadequate: Thailand’s Treatment of Refugees and Asylum Seekers,” Sept. 2012, at 37–42, 108. Maple, “Rights at Risk,” at 22. A. Gonzalez Farran, “Books Not Bombs for Sudan Refugees,” IRIN News, Feb. 9, 2016; W. Babiker, “Humanitarian Deadlock in Yida,” May 23, 2013. H. Davidson and C. Wahlquist, “Power Shut Off to Final Manus Compounds as 600 Men Refuse to Leave,” Guardian, Oct. 31, 2017. “Several refugees have been violently attacked by locals in recent years on Manus Island, in cases that did not result in any prosecutions. The newer facilities offer even less protection than the previous centre – they are not only closer to Lorengau town, but also lack basic security infrastructure like fences. Many refugees told Amnesty International that they

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promised, the newer placement proved dangerous and restrictive, due in part to neglect by the authorities: Refugees remain subject to severe restrictions on their freedom of movement. Most are unable to leave designated accommodation facilities on Manus Island or in Port Moresby. They are reduced to surviving on a basic living allowance that is insufficient to cover their food, medicine and other expenses. PNG authorities have failed to provide refugees with regular status, access to travel and identity documents or the ability to obtain work long-term that is essential for the meaningful integration of refugees. Settlement in Papua New Guinea has proven near impossible for those refugees who have attempted it, given the difficulties of earning a living and the constant threat of violence.295

Conditions are especially difficult for refugees sent to “closed” camp settings.296 For example, Tanzanian law formally prohibits refugees from residing outside a designated refugee camp without a government-issued permit.297 Although residents are in practice permitted to move within a 4-kilometer radius outside their camps to collect necessities such as firewood, the lack of a demarcation line means that those who unwittingly stray too far may nonetheless be subject to penalties.298 Even in so-called “open” camp settings, there can be very little real freedom of movement. After the High Court’s 2013 ruling that Israel’s Saharonim Detention Center violated the right to liberty, the Knesset responded by introducing legislation authorizing the transfer of refugee claimants to the Holot

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were too afraid to leave the centres due to the risk of violent attacks or robberies by locals. The police’s repeated failures to investigate attacks or hold those responsible to account has further undermined trust in the authorities and created a climate of impunity . . . On 21 January 2018, the UN Refugee Agency (UNHCR) also noted ‘while no formal curfew is in place, local police have advised all refugees and asylum-seekers to return to their accommodation by 6pm each evening to mitigate security risks’”: K. Schuetze, “Manus Island: Australia Abandons Refugees to a Life of Uncertainty and Peril,” Feb. 1, 2018. Ibid. “[This] type of restriction is the most extreme, whereby a state, either in legislation or government policy[,] restricts refugees to camps and severely restricts their freedom of movement by operating a closed camp, or by allowing only small sections of the refugee population to leave the camp on day passes. For example, in Mozambique persons with specific education or training, such as lawyers or nurses[,] are allowed to work outside the camp. Other states, such as Malawi, effectively create closed camps by charging high fees for work permits, which refugees are generally unable to pay, meaning they cannot leave the camp for employment. These types of restrictions can be found in either national legislation, such as in Tanzania, or they can be governmental policy, for example in the case of Rwanda”: Maple, “Rights at Risk,” at 23 (internal citations omitted). Tanzania: Refugees Act 1998, ss. 16–17. S. Chiasson, “The State of Freedom of Movement for Refugees in Tanzania: An Overview,” Sept. 1, 2015.

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Center for Residents.299 Constructed by Israel’s Defense Ministry, guarded by the Prison Service, and surrounded by a 13-foot fence and the Negev Desert, the Holot Center served as an “open” camp for thousands: Asylum seekers must register there three times a day, to prove they are . . . there. No one may leave between sundown and sunrise. If an asylum seeker breaches, or is even suspected of planning to breach, the center’s rules or threatens the “security of the state” or “public safety,” an Interior Ministry official can order the person’s return to Saharonim for up to 12 months.300

Refugees not detained in prisons or refugee camps may still be relocated or confined to a location not of their choosing. In the early 1970s, the government of Sudan worked with UNHCR to relocate Eritrean refugees from border camps to new, permanent settlements in the Qala en Nahal area. The relocation was justified as requisite to enabling the refugees to become self-sufficient by taking advantage of underutilized agricultural land. But it was opposed by the refugees themselves as incompatible with their desire to repatriate.301 Much the same rationale was given for Mozambique’s decision to force refugees to abandon their homes near Maputo and to relocate them thousands of kilometers away in the northern provinces, where there was access to arable land for agricultural purposes.302 Greece insisted that its indefinite and automatic confinement of refugee claimants to its territorial islands was necessary to fulfill its commitment to return them to Turkey under the 2016 EU–Turkey deal.303 Although the country’s highest administrative court determined that 299

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G. Simpson, “Detention? What Detention?,” Dec. 26, 2013 (Simpson, “Detention?”); W. Booth, “Israeli Government to Refugees: Go Back to Africa or Go to Prison,” Washington Post, May 14, 2015. Simpson, “Detention?” G. Kibreab, Refugees and Development in Africa: The Case of Eritrea (1987), at 80–83. See also A. Karadawi, Refugee Policy in Sudan, 1967–1984 (1999), at 138: “This was thought to be an appropriate political option that minimised the security risk created by the presence of the refugees inside Sudan and the political tensions between Sudan and Ethiopia.” The duty of refugees to live in camps is codified in Sudanese law, with “[n]on-compliance . . . punishable with imprisonment not exceeding one year . . . Camps and settlements in the Sudan are thus established to perpetuate, rather than to bring to an end, refugee status and to block the incorporation of refugees into Sudanese society”: G. Kibreab, “Resistance, Displacement, and Identity: The Case of Eritrean Refugees in Sudan,” (2000) 34(2) Canadian Journal of African Studies 249, at 268–270. The Mozambican Foreign Minister responded to protests by indicating “that he thought some of [the refugees] had an exaggerated idea of their rights. ‘There have been frequent cases of demands that go beyond the obligations that states have towards them,’ he said. [Minister] Simao explained that the decision to transfer the refugees to northern provinces was taken to allow them space to carry out self-support activities”: Agencia de Informaçao de Mozambique, “Mozambique Committed to Assisting Refugees,” Mar. 27, 2003. Human Rights Watch, “Greece: Government Defies Court on Asylum Seekers,” Apr. 25, 2018. “Asylum seekers subject to the EU–Turkey statement are issued a geographical

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there were no “serious or overriding reasons of public interest” to justify the measure,304 the policy was reinstated just days later305 despite evidence of severe overcrowding, poor sanitation, and food and water insecurity.306 While not confining refugees to prisons or camps, Germany’s Residence Act provides that asylum-seekers “shall be obliged to take up their habitual residence (place of residence) for a period of three years as from recognition or issuance of the temporary residence permit in the Land to which they have been allocated for the purposes of their asylum procedure.”307 Indeed, “[i]n order to promote their lasting integration into the way of life in the Federal Republic of Germany, foreigners who are subject to [this] obligation shall be obliged, within six months of recognition or the first issuance of a temporary residence permit . . . to take up residence in a specific place if this can help them” secure accommodation, master the German language, or engage in employment.308 More generally, European Union law authorizes tough restrictions on refugee freedom of residence and movement. Under the European Union’s recast Reception Directive, EU states enjoy the right to “decide on the residence of the applicant [for asylum] for reasons of public interest, public order or, when necessary, for the swift processing and effective monitoring of his or

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restriction, ordering them not to leave the respective island until the end of the asylum procedure. The practice of geographical restriction has led to a significant overcrowding of the facilities on the islands and thus to the deterioration of reception conditions. On 17 April 2018, following an action brought by GCR, the Council of State annulled the Decision of the Director of the Asylum Service regarding the imposition of the geographical limitation. A new Decision of the Director of the Asylum Service was issued three days after the judgment and restored the geographical restriction on the Eastern Aegean islands”: Asylum Information Database, “Country Report: Greece 2018” (2019), at 17, in www.asylumineurope.org, accessed Mar. 1, 2020. N. Kitsantonis, “Greek Court Upends Rules Limiting Migrants’ Movements,” New York Times, Apr. 19, 2018. Human Rights Watch, “Greece: Government Defies Court on Asylum Seekers,” Apr. 25, 2018. “Reception facilities on the islands remain substandard and may reach the threshold of inhuman and degrading treatment, as it has been widely documented. Overcrowding, lack of basic services, including medical care, limited sanitary facilities, and violence and lack of security poses significant protection risks. The mental health of the applicants on the islands is reported aggravating”: Asylum Information Database, “Country Report: Greece 2018” (2019), at 17, in www.asylumineurope.org, accessed Mar. 1, 2020. Act on the Residence, Economic Activity and Integration of Foreigners in the Federal Territory, as amended by Art. 10(4) of the Act of 30 October 2017 (Federal Law Gazette I p. 3618), at s. 12a(1). While introduced as a temporary provision due to expire in 2019, the provision has since been made a permanent part of German law: Communication from C. Hruschka, Mar. 20, 2020 (on file with the author). Act on the Residence, Economic Activity and Integration of Foreigners in the Federal Territory, as amended by Art. 10(4) of the Act of 30 October 2017 (Federal Law Gazette I p. 3618), at s. 12a(3).

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her application for international protection.”309 If a refugee abandons the assigned place of residence without permission, the Directive authorizes the host state to “reduce or . . . withdraw material reception conditions”310 – a euphemism for “housing, food and clothing provided in kind, or as financial allowances or in vouchers, or a combination of the three, and a daily expenses allowance.”311 While not formally limiting freedom of movement, some states impose de facto constraints on the mobility of refugees by tying access to public housing or income support to residence in designated areas or facilities. Under the United Kingdom’s dispersal policy, persons found to be refugees must remain in the dispersal area to which they were assigned upon arrival or face ineligibility for housing assistance for a period of six months.312 Zimbabwe, Tunisia, and Kenya impose a “‘choice’ between living in a camp and receiving aid from international organizations, or leaving and fending for themselves without the ability to legally work.”313 The role of UNHCR and other humanitarian organizations in facilitating these policies has drawn scrutiny:

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The relevant portions of Art. 7 provide that “[a]sylum seekers may move freely within the territory of the host Member State or within an area assigned to them by that Member State . . . Member States may decide on the residence of the applicant for reasons of public interest, public order or, when necessary, for the swift processing and effective monitoring of his or her application for international protection [emphasis added]”: Council Directive laying down standards for the reception of applicants for international protection (recast), Doc. 2013/33/EU (June 26, 2013) (EU Reception Conditions Directive (recast)), at Art. 7(1)–(2). EU Reception Conditions Directive (recast), at Art. 20(1)(a). Beyond concerns of freedom of movement and residence, the withdrawal of rights as punishment is inconsistent with decisions taken in drafting Art. 2 of the Refugee Convention. See Chapter 1.4.4 at note 150. EU Reception Conditions Directive (recast), at Art. 2(g). Critically, however, “Member States shall under all circumstances ensure access to health care . . . and shall ensure a dignified standard of living for all applicants”: ibid. at Art. 20(5). “Once an individual is granted asylum and gains refugee status, those fully supported must leave their dispersal accommodation within 28 days. Section 11 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 provides that asylum seekers establish a local connection to the dispersal site where they were provided accommodation. This means that refugees who require local authority housing must apply in the same area to which they were dispersed and is known as the ‘local connection rule.’ Local authorities can therefore refer individuals to the original dispersal area for housing claims. As an example, the local connection rule requires an asylum seeker who is dispersed to Cardiff to apply for local authority housing only in Cardiff at the end of the 28 days after being granted refugee status. If the individual decides to migrate onwards to London or Manchester, they are regarded as being ‘intentionally homeless’ and cannot apply for local authority housing for the first six months because their ‘local connection’ is with Cardiff”: E. Stewart and M. Shaffer, “Moving On? Dispersal Policy, Onward Migration and Integration of Refugees in the UK,” Dec. 2015, at 14. Maple, “Rights at Risk,” at 24.

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UNHCR has a long history of using care and maintenance programmes in camps in Africa, which has at times reduced or substituted the role of states in the protection of refugees within their borders and prolonged the length of time refugees are confined within camps . . . [T]hrough these programmes, UNHCR [is] assisting in creating de facto restrictions. By only making programmes available in camps UNHCR [is] creating impossible choices for refugees, who may wish to be self-sufficient, but for whom, without initial assistance from the host government or the international community, will find living in urban settings unsustainable.314

Even where refugees are not subject to efforts to confine them in camps or particular regions, they may still not enjoy real freedom of movement within the whole of the territory of the host country. Non-citizens in Tajikistan, for instance, may not travel within 15 miles of the borders with Afghanistan and China without a permit from the Ministry of Foreign Affairs.315 Moreover, a refugee-specific ban on residing in the capital or any major cities has forced the country’s predominantly Afghan refugee population into rural areas with limited access to education and employment; those who violate the prohibition are subject to deportation.316 Malawi charges high fees for work permits which most refugees are not able to pay, thus effectively confining them to camps where their subsistence needs can be met.317 Bangladesh has imposed roadblocks to check the movement of Rohingya refugees who are confined to overcrowded rural camps along the border in order to prevent them from integrating in cities and towns.318 A softer form of constraint on refugee freedom of movement exists in the Netherlands. Those who choose to live in a reception center, or Asielzoekerscentrum, are free to come and go as they please, but must report in person on a weekly basis in order to benefit from material assistance programs.319 Beneficiaries may moreover refuse an accommodation placement offer; in such cases, the refugee agency assesses whether the refusal is justifiable and, if so, offers a new placement option. If the refusal is determined to be unjustified, the beneficiary is given twenty-four hours to accept the offer before its expiration.320 Refugee Convention, Art. 26 Freedom of Movement Each Contracting State shall accord to refugees lawfully in its territory the right to choose their place of residence and to 314 315 316 318

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Maple, “Rights at Risk,” at 25–26. US Department of State, “2017 Human Rights Report: Tajikistan,” at 14–15. Ibid. at 15–17. 317 Maple, “Rights at Risk,” at 23. “Bangladesh Imposes Mobile Phone Ban on Rohingya Refugees,” Agence France-Presse, Sept. 24, 2017; see also M. Bearak, “One Month on, Bleak New Reality Emerges for 436,000 Rohingya Refugees,” Washington Post, Sept. 25, 2017. Asylum Information Database, “Country Report 2018: Netherlands” (2019), at 63, in www.asylumineurope.org, accessed Mar. 1, 2020. Ibid. at 94.

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move freely within its territory, subject to any regulations applicable to aliens generally in the same circumstances. Civil and Political Covenant, Art. 12 1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. ... 3. The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant. ... The drafters of the Refugee Convention were firmly committed to the view that once lawfully in the territory of a state party, refugees should be subject only to whatever restrictions govern the freedom of internal movement and residence of other non-citizens. The presumptive right of refugees to be assimilated to other aliens for purposes of freedom of movement can be constrained in only the two circumstances covered by Art. 31(2): during the early days of a mass influx, or while investigating the identity of, and possible security threat posed by, an individual seeking recognition of refugee status. The more general rule set by Art. 26 prohibits refugee-specific policies or practices which curtail the ability of refugees to choose the place where they wish to live, or to move about the territory of a state party.321 This compromise position was awkwardly arrived at. Despite the precedent of the 1938 Convention, which expressly provided for the right of refugees to enjoy freedom of internal movement,322 the working draft for the 1951 321

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The UK Supreme Court rejected the view that refugees living in British Sovereign Base Areas on Cyprus could rely on the Art. 26 right to “move freely within its territory” to secure resettlement to the metropolitan area of the United Kingdom, finding that “the metropolitan territory and its dependent territories are to be treated as separate units . . . Each territory for the international relations of which the State is responsible must in this context be treated separately”: R (Tag Eldin Ramadan Bashir) v. Secretary of State for the Home Department, [2018] UKSC 45 (UK SC, July 30, 2018), at [80]–[81]. Reasoning by reliance on Arts. 19(2) and 40 of the Refugee Convention, the Court determined that Art. 26 freedom of movement “is directed to movement by a refugee within whichever territory they may be, whether it be the metropolitan territory, if that is where they are, or any overseas dependent territory, if they are there . . . It cannot have been directed to conferring on a refugee a right to move between all or any of a State’s metropolitan and overseas territories, subject only to such constraints as might affect an alien”: ibid. at [83]. “Without prejudice to the power of any High Contracting State to regulate the right of sojourn and residence, a refugee shall be entitled to move about freely, to sojourn or reside in the territory the present Convention applies to, in accordance with the laws and internal

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Convention did not even mention the issue. This omission was noted during discussion of the right of refugees to receive identity papers, when the Belgian and French representatives suggested that the failure to codify freedom of internal movement would amount to “a gap in the draft.”323 It emerged that the reason for the omission had been to avoid the suggestion that states could not impose restrictions on freedom of movement during a mass influx: The Secretariat had had in mind the case of the Spanish refugees who presented themselves in large numbers at the French frontier towards the end of the Spanish Civil War and for whom it had been necessary to set up reception camps to meet their immediate needs before regularizing their position and arranging for their dispersal throughout the country. The obligation to remain in these camps was clearly a considerable limitation on the right of movement . . . Such a practice might, however, prove essential in certain circumstances.324

Elaborating this concern later in the debate, the representative of the International Refugee Organization implored representatives who favored an article that would codify the right of refugees to enjoy freedom of movement to be realistic: Realities must be faced and it must be remembered that the problem which had arisen in France when vast numbers of Spanish refugees had arrived was reappearing, or was liable to reappear in other countries, such as Switzerland, Italy, and so forth.325

In addition to the need to be able lawfully to restrict freedom of movement while organizing the reception of a mass influx of refugees, the Danish representative to the Ad Hoc Committee argued that governments should also be entitled to detain dangerous refugees. Mr. Larsen was concerned about “the case of refugees who, having been admitted to a country, had to be expelled from it but could not leave immediately. It was clear that the two situations had certain points in common.”326 He therefore proposed an amendment that

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regulations applying therein”: Convention governing the Status of Refugees coming from Germany, 4461 LNTS 61, done Feb. 10, 1938 (1938 Refugee Convention), at Art. 2. Statement of Mr. Rain of France, UN Doc. E/AC.32/SR.15, Jan. 27, 1950, at 12. See also Statement of Mr. Cuvelier of Belgium, ibid. at 11: “Such a provision was included in article 2 of the 1938 Convention, which gave refugees the right to move about freely, to sojourn and to reside in the territory to which they had been admitted. He would like to know why the Secretariat had omitted to include those provisions in its draft, and also whether the Committee would be prepared to have them in the Convention.” Statement of Mr. Rain of France, ibid. at 14. Statement of Mr. Weis of the IRO, ibid. at 18. Statement of Mr. Larsen of Denmark, ibid. at 22. The original concern of the Danish representative really does not raise an issue of concern to refugee law. If it is determined that the person seeking recognition of refugee status is subject to exclusion on the grounds of, for example, having committed an extraditable crime or posing a threat to national

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Internment and restricted residence may be enforced only in individual cases and for imperative reasons of national security and order. The conditions of internment and the treatment of interned refugees shall, both morally and materially, be consistent with human dignity.327

In the end, it was agreed that the right of states to detain refugees who pose a threat to host state security, as well as to resort to provisional detention during a mass influx, should be addressed in the context of what became Art. 31(2),328 which grants states some flexibility to limit the freedom of movement of refugees in both situations of concern.329 As previously described,330 Art. 31(2) authorizes the provisional detention of refugees arriving in the context of a mass influx for a short time to enable the receiving state to organize the logistics of emergency reception and dispersal in a way that minimizes

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security, he or she is not a refugee and is therefore subject to the state’s general immigration detention rules. But because of the declaratory nature of refugee status, an exception to the general right to freedom of movement was required to authorize detention while the circumstances which might justify exclusion from refugee status are being investigated. This is a function of Art. 31(2): see Chapter 4.2.4. Statement of Mr. Larsen of Denmark, ibid. at 23. Statements of Mr. Henkin of the United States and Mr. Rain of France, ibid. at 23–24. This understanding is adopted by R. Marx, “Article 26,” in A. Zimmermann ed., The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary 1147 (2011) (Marx, “Article 26”), at 1160. See Chapter 4.2.4 at notes 1278–1300. The French representative insisted that any right to detain refugees arriving in a mass influx not be included as a limitation on the Convention’s right of freedom of movement, but instead be carefully placed within the article addressing the question of expulsion and admittance (now Art. 31). He observed that “[t]he admission that refugees could be placed in camps was only due to the fact that such measures were sometimes inevitable if the refugees were in such vast numbers that a State felt that to allow them to scatter throughout its territory might be detrimental to public order”: Statement of Mr. Rain of France, UN Doc. E/AC.32/SR.15, Jan. 27, 1950, at 24. In introducing the right of states to restrict freedom of movement under Art. 31(2), the representative of the International Refugee Organization confirmed that it “concerned primarily the position of refugees admitted provisionally as an emergency measure. He recognized that it was sometimes impossible for Governments to allow such refugees full freedom of movement and the paragraphs proposed were intended to define the restrictions which might be necessary and to reduce them to the minimum”: Statement of Mr. Weis of the IRO, UN Doc. E/AC.32/SR.21, Feb. 2, 1950, at 3. Robinson observes in a footnote that “Art. 26 would also not conflict with special situations where refugees have to be accommodated in special camps or in special areas even if this does not apply to aliens generally [emphasis added]”: Robinson, History, at 133, n. 207. Goodwin-Gill cites Robinson’s position without analysis, noting simply that “[s]uch measures are now the usual response, especially on the occasion of large-scale influx [emphasis added]”: G. Goodwin-Gill, “International Law and the Detention of Refugees,” (1986) 20(2) International Migration Review 193, at 207. But in light of the drafting history and context of Arts. 31(2) and 26 described here, the exceptional right to detain should be understood to be fully codified in Art. 31(2). Otherwise refugees may be confined to camps only in accordance with rules applicable to aliens generally, and which meet the requirements of Art. 12 of the Civil and Political Covenant: see text at note 383 ff.

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disruptions to public order. More generally, it also allows host states to limit freedom of movement during the time needed to ensure that an individual seeking entry as a refugee does not pose a threat to national security, for example while investigating his or her identity and circumstances of arrival.331 Importantly, however, the right of a state to limit a refugee’s freedom of movement on either ground comes to an end once a refugee’s status is “regularized.” As previously analyzed, regularization is not synonymous with recognition of refugee status.332 To the contrary, “[a]ny person in possession of a residence permit was in a regular position. In fact, the same was true of a person who was not yet in possession of a residence permit but who had applied for it and had the receipt for the application. Only those persons who had not applied, or whose application had been refused, were in an irregular position [emphasis added].”333 Once status is regularized, including by the lodging of an application for recognition of refugee status and completion by the individual concerned of the necessary steps to enable a state to assess his or her claim,334 all refugee-specific restrictions on the right to move freely and to choose one’s residence must end in accordance with Art. 26.335 As such, while Bangladesh would have been initially justified in confining the mass influx of Rohingya refugees while their claims were registered, its decision indefinitely 331

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See UNHCR Executive Committee Conclusion No. 44, “Detention of Refugees and Asylum-Seekers” (1986), at [(a)], which “[n]oted with deep concern that large numbers of refugees and asylum-seekers in different areas of the world are currently the subject of detention or similar measures by reason of their illegal entry or presence in search of asylum, pending resolution of their situation.” The Executive Committee then agreed that “detention should normally be avoided. If necessary, detention may be resorted to only on grounds prescribed by law to verify identity; to determine the elements on which the claim to refugee status or asylum is based; to deal with cases where refugees or asylum-seekers have destroyed their travel and/or identity documents in order to mislead the authorities of the State in which they intend to claim asylum; or to protect the national security or public order”: ibid. at [(b)]. While the reference to public order is not justified under Art. 31(2), the balance of this formulation is a helpful summary of the scope of permissible provisional denial of freedom of movement. See Chapter 3.1.3 at note 129. This statement of the representative of France was made during the course of the discussion on the right of refugees to enjoy freedom of internal movement and choice of residence: Statement of Mr. Rain of France, UN Doc. E/AC.32/SR.15, Jan. 27, 1950, at 20. See generally Chapter 3.1.3 in which the logical and legal reasons for endorsing this understanding are set out in detail. “Article 26 makes it clear beyond doubt that a contracting State may not impose . . . restrictions applicable only to refugees”: Marx, “Article 26,” at 1149. “The freedom of movement as [defined] by Article 26 is not dependent on any particular purpose. The refugee may move around for business or for pleasure”: Grahl-Madsen, Commentary, at 111. See generally “The Michigan Guidelines on Refugee Freedom of Movement,” (2018) 39 Michigan Journal of International Law 1, at [19]; and M. Zieck, “Refugees and the Right to Freedom of Movement: From Flight to Return,” (2018) 39(1) Michigan Journal of International Law 19 (Zieck, “Freedom of Movement”).

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to maintain roadblocks to prevent the refugees from seeking shelter in cities and towns336 is at odds with duties under Art. 26. Because all refugee-specific constraints must end as soon as the individual concerned has regularized her status by complying with her obligations to provide authorities with the information needed to assess the claim to be a refugee, ongoing mandatory refugee encampment is never legal. The High Court of Kenya determined as much, finding that a mandatory encampment policy “which targets refugees and asylum seekers in urban centres is a threat to their right to freedom of movement enshrined in Article 26 of the 1951 Convention.”337 Indeed, UNHCR – historically a proponent of refugee camps – adopted in 2014 what has been referred to as a paradigm shift in refugee protection,338 acknowledging that it was critical to remove the “limitation on the rights and freedoms of refugees”339 inherent in practices of routine refugee encampment. In line with this view, the Supreme Court of Justice of Papua New Guinea struck down the system under which asylum-seekers expelled by Australia were held “against their will [in a center] enclosed with razor wire and manned by security officers to prevent the asylum-seekers from leaving the centre”:340 The only reason why the asylum seekers are detained . . . is for the purposes of processing their asylum claims . . . [T]reating those required to remain in the relocation centre as prisoners irrespective of their 336 337

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See text at note 318. Kituo Cha Sheria v. Attorney General, Petition No. 19 of 2013 (Ken. HC, July 26, 2013), at [59]. In its brief filed in the case, UNHCR rightly insisted that “Article 9 . . . applies only to ‘particular persons,’ [meaning that] any measures pursued under Article 9 must be directed against specific individuals – not collectively – on account of the particular threat they pose themselves”: UNHCR, “Brief of the 1st Amicus Curiae in Petition No. 115 of 2013,” Mar. 12, 2013, at 15–16. In a subsequent decision, the government’s plan was sadly affirmed on the basis that “the petitioners’ refugee status is in doubt” and that the government agreed that it would not undertake “a security operation where urban refugees were to be rounded up”: Samow Mumin Mohamed v. Cabinet Secretary, Ministry of Interior, Petition No. 206 of 2011 (Ken. HC, June 30, 2014), at [25], [21]. The latter decision nonetheless affirmed that “[i]t is not in dispute that refugees are entitled to the full panoply of rights and fundamental freedoms guaranteed by the Constitution . . . and international treaties and conventions governing refugees” (ibid. at [15]). L. Hovil, “With Camps Limiting Many Refugees, the UNHCR’s Policy Change is Welcome,” Guardian, Oct. 2, 2014. UNHCR, “Policy on Alternatives to Camps,” UN Doc. UNHCR/HCP/2014/9, July 22, 2014. A more recent analysis warns, however, that “moving policy away from decades of operational work within camps will be a seismic shift in how UNHCR operates . . . [A] great deal will depend on successful implementation on the ground”: Maple, “Rights at Risk,” at 15. Belden Norman Namah v. Minister for Foreign Affairs and Immigration, Dec. No. SC1497 (PNG SCJ, Apr. 26, 2016), at [20].

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circumstances or their status save only as asylum seekers is to offend against their rights and freedoms as guaranteed by the various conventions on human rights at international law.341

The decisions of Sudan to criminalize refugees found outside camps342 and of Thai authorities to force Burmese refugees to languish in camps for decades343 are thus simply unlawful. While formally designated refugee camps are less common in the developed world, Hungary’s decision to confine refugees in compounds of converted shipping containers well past the point of regularization of status – including for the duration of any appeals344 – amounts in substance to the establishment of an unlawful camp. Indeed, because Art. 26 is not simply a prohibition of indefinite confinement to camps, but rather a duty to ensure that refugees enjoy an affirmative right to freedom of movement as well as to choose their place of residence, it is also breached by generalized policies of post-regularization detention of refugee claimants such as those implemented by Australia and the United States.345 As the European Court of Justice has affirmed, a state “may not hold a person in detention for the sole reason that he has made an application for international protection.”346 This prohibition on refugee-specific constraints on choice of residence is no less offended when the approach of authorities is indirect,347 such as the manipulation of access to relief supplies by South Sudanese officials to force 341

342 345 346

347

Ibid. at [59], [69]. See also Plaintiff S195/2016 v. Minister for Immigration and Border Protection, [2017] HCA 31 (Aus. HC, Aug. 17, 2017), at [25], noting that the Namah decision “plainly held that treatment [of refugees] . . . contravened provisions of the Constitution of PNG and was unsupported by PNG law.” A complaint was subsequently filed with the Prosecutor of the International Criminal Court alleging that Australia’s policy of removing refugees to unlawful detention in Papua New Guinea amounted to participation in actions prohibited by Art. 7 of the Rome Statute: Communiqué to the Office of the Prosecutor of the International Criminal Court, Feb. 15, 2017. On Feb. 12, 2020, the Office of the Prosecutor determined that the “conditions of detention appear to have constituted cruel, inhuman, or degrading treatment . . . and the gravity of the alleged conduct thus appears to have been such that it was in violation of fundamental rules of international law” but that “there is insufficient information at this stage to indicate that the multiple acts of imprisonment or severe deprivation of liberty were committed pursuant to or in furtherance of a State (or organisational) policy to commit an attack against migrants or asylum seekers seeking to enter Australia by sea, as required by article 7(2)(a) of the Statute”: Letter from Phakiso Mochochoko, Director, Jurisdiction, Complementarity and Cooperation Division, International Criminal Court to the Office of Andrew Wilkie MP, Feb. 12, 2020, Doc. OTPCR-322/14/00, uploads.guim.co.uk/, accessed Feb. 25, 2020. See text at note 286. 343 See text at note 289. 344 See text at note 285. See text at notes 282–283. JN v. Staatssecretaris voor Veiligheid en Justitie, Dec. No. C-601/15 PPU (CJEU, Feb. 15, 2016), at [61]. “The travaux are . . . clear: refugee-specific constraints, including indirect ones such as terms and conditions of admission (e.g. residence in return for work in a specific location and for

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refugees into the Ajuong Thonk camp,348 or the withdrawal from refugees in Papua New Guinea of food, water, and other necessities to compel them to accept relocation to facilities in Lorengau.349 When Zimbabwe, Tunisia, and Kenya imposed a “choice” between agreeing to live in a camp and leaving with no support and no right to work350 they effectively gave refugees no option but to sacrifice their right to freedom to choose their place of residence. The United Kingdom’s policy that renders refugees ineligible for housing assistance for six months if they move beyond their assigned dispersal area351 is similarly problematic. Because no state may lawfully withhold the essentials of life from refugees,352 there is no legal difference between the use of such threats to compel a refugee to reside in a place not of his or her choosing and a direct order of confinement. As observed by Lord Justice Sedley in a challenge to the British dispersal policy, the system has the “harsh effect of restricting – but not necessarily excluding – the ability [of refugees] to settle in a place of their choice.”353 In contrast, the Dutch system – under which basic income support is provided to all refugees awaiting the results of status verification, but superior benefits are offered to those willing to live in a refugee reception center354 – is not legally problematic. By offering an enhanced level of support to those who agree to reside in a designated place, the Netherlands promotes the reception center option without any unlawful coercion. Nor may a state lawfully withhold documentation from a refugee with knowledge that doing so prevents the refugee from enjoying his or her right to freedom of movement – for example, the refusal of Spanish authorities to issue documents to post-admissibility refugee claimants who sought protection in the Spanish enclaves of Ceuta and Melilla.355 As the Chief Justice of Australia determined in a case in which domestic “visa capping power” was relied upon by the government to withhold a protection visa from an Ethiopian recognized as a refugee, the application of [the capping regulations] would have the consequence that the date of decision could be indefinitely deferred . . . thus prolonging the period that the applicant would remain in detention . . . That consequence, extending as it necessarily would to persons who, like the plaintiff, . . . are persons in respect of whom

348 351 353

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a specific amount of time)[,] were explicitly rejected by the drafters”: Zieck, “Freedom of Movement,” at 84. See text at note 292. 349 See text at note 293. 350 See text at note 313. See text at note 312. 352 See Chapter 4.4. Ozbek v. Ipswich Borough Council, [2006] EWCA Civ 534 (Eng. CA, May 4, 2006), at [67], per Sedley L.J. concurring. Lady Justice Arden agreed “that there is, as Sedley L.J. holds, a restriction on his freedom to settle in a place of his choice”: ibid. at [68], per Arden L.J. concurring. See text at note 319. 355 See text at note 284.

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Australia has protection obligations under the Refugee Convention . . . is at odds with . . . Australia’s obligations under the Convention and the purpose of protection visas as a mechanism for meeting those international obligations.356

In a similar vein, governments may not lawfully rely on the terms of refugee resettlement or temporary admission in order indirectly to limit the freedom of movement and choice of residence of refugees. This possibility was raised by the representative of Venezuela to the Ad Hoc Committee, who noted that granting refugees complete freedom to choose their residence might allow them to ignore the terms of resettlement agreements under which refugees were admitted to residence in return for agreeing to work on a particular farm for a period of years.357 Similarly, the Danish delegate sought to safeguard systems under which refugees were required to live in a particular location while acquiring the skills that would enable them to be resettled.358 The example given was Denmark’s decision during the Nazi era to admit to its territory “certain young German Jews on the condition that after they had completed their agricultural training there, they would leave for other countries, Israel for example, in order to follow their occupation.”359 In a bid to accommodate concerns of this kind, the Chairman of the Ad Hoc Committee proposed that the right of refugees to enjoy freedom of internal movement and residence be “subject to the conditions under which they were admitted.”360 The Chairman’s proposal was, however, rejected on the grounds that it could be seen as a justification for other refugee-specific constraints. Because “such an addition would provide few safeguards for refugees,”361 the Committee voted to prohibit all refugee-specific limitations on freedom of movement or residence, including those implemented indirectly by terms

356

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358 360 361

Plaintiff M150/2013 v. Minister for Immigration and Border Protection, [2014] HCA 25 (Aus. HC, June 20, 2014), at [31], per French C.J. The Venezuelan representative “drew attention to the problem with which the authorities of a signatory State might be faced in the event of the article’s adoption, if, for example, refugees admitted as agricultural workers were to leave the farms to which they had been assigned and engage in trade in the towns, refusing to return to agricultural work. Although the refugees would thereby have infringed the conditions of their admission to the territory, the reception State might find itself powerless to take any action against them by virtue of the provisions of the article which the Committee was proposing to adopt”: Statement of Mr. Perez Perozo of Venezuela, UN Doc. E/AC.32/SR.15, Jan. 27, 1950, at 15. Statement of Mr. Larsen of Denmark, ibid. at 16. 359 Ibid. at 16. Statement of the Chairman, Mr. Chance of Canada, ibid. at 21. Statement of Sir Leslie Brass of the United Kingdom, ibid. at 21.

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and conditions of admission,362 unless generally applied to all noncitizens:363 If new restrictions were introduced into a provision which was intended to grant refugees simple equality of treatment with aliens – an equality which, it seemed to him, should be taken for granted – it would look as though States were being invited to treat the refugees with less consideration than was accorded to aliens.364

362

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364

The use of indirect limitations was identified as problematic by the American representative early in the discussions. In response to a Belgian proposal to incorporate the rule on freedom of movement from the 1938 Convention, Mr. Henkin “pointed out that the first phrase of that article, ‘Without prejudice to the power of any High Contracting Party to regulate the right of sojourn and residence’ appeared to nullify in advance the rights granted to refugees in the latter part of the text”: Statement of Mr. Henkin of the United States, ibid. at 13. Interestingly, even though the discussions noted above had clearly resulted in a decision that terms and conditions of admission could not be relied upon to restrict freedom of movement, the draft adopted by the First Session of the Ad Hoc Committee still contained the reference to “the conditions under which such refugees were admitted”: Ad Hoc Committee, “First Session Report,” at Annex I, Art. 21. Without any recorded debate, however, the report of the Second Session of the Ad Hoc Committee deleted the reference, allowing only “regulations applicable to aliens generally in the same circumstances” to delimit a refugee’s freedom of movement and residence: Ad Hoc Committee, “Second Session Report,” at Annex I, Art. 21. But see Weis, Travaux, at 210: “Article 26 . . . does not affect the conditions imposed on refugees for their admission.” At the Conference of Plenipotentiaries, it was suggested by Canada and Australia that requiring refugees admitted under general immigration schemes to remain in a given job for a period of time should not be understood to violate Art. 26: Statements of Mr. Shaw of Australia and Mr. Chance of Canada, UN Doc. A/CONF.2/SR.11, July 9, 1951, at 16. This is a plausible interpretation, since refugees resettled as immigrants would only face the same (indirect) constraints on freedom of movement as any other non-citizen admitted under the general program. As Grahl-Madsen observed, Art. 26 “does not relate to employment. The rules regulating employment are found in Articles 17 through 19 [see Chapters 5.3, 6.1, and 6.2]. It will be appreciated that in so far as there are restrictions on the freedom to seek whatever employment one might desire, the right to choose one’s place of residence may be restricted in fact though not in law”: Grahl-Madsen, Commentary, at 111. It would be otherwise, however, if a resettlement program were directed only to refugees, or if a variant of a general program addressed to refugees imposed more significant limitations on freedom of movement or residence than the general scheme for non-citizens wishing to immigrate. Indeed, Australia recognized as much by entering a reservation (since withdrawn), providing that Art. 26 would not be understood to preclude “the imposition of conditions upon which a refugee may enter the Commonwealth . . . [or] the making of arrangements with a refugee under which he is required to undertake employment under the direction of the Government”: 189 UNTS 200–202. Statement of Mr. Rain of France, UN Doc. E/AC.32/SR.15, Jan. 27, 1950, at 21. See also Statements of Mr. Guerreiro of Brazil and Mr. Cuvelier of Belgium, ibid. Providing an example of a limit which appears to have been found acceptable by the Committee, the Brazilian delegate pointed out that “it was true that refugees authorized to enter Brazil as

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In line with this firm commitment to assimilate refugees to other noncitizens,365 not even a proposal introduced at the Conference of Plenipotentiaries to authorize refugee-specific constraints on place of residence where necessary to avoid friction between states was pursued.366 There is, of course, no legal impediment to the promotion of residence in areas safe from border incursion or incitement to hostility, so long as refugees are not forcibly moved or confined to their new homes. As such, Art. II(6) of the AU Refugee Convention – providing that “[for] reasons of security, countries of asylum shall, as far as possible, settle refugees at a reasonable distance from the frontier of their country of origin [emphasis added]”367 – is capable of being lawfully implemented. But this is so only insofar as coercion is scrupulously avoided – thus calling into question Liberia’s security-based mandatory encampment of 10,000 refugees in 2012.368 If enforced constraints on freedom of residence are deemed essential, they must be directed to all non-citizens (or to all persons). Even Art. 9 of the Convention, which does allow strictly provisional and genuinely essential restrictions on freedom of movement and residence in response to “war or other grave and exceptional circumstances,” does not authorize a general policy of refugee-specific constraints after the verification of refugee status.369 As the preceding analysis suggests, there can be some limits on the freedom of movement or choice of residence of lawfully present refugees (including those awaiting a decision on their application for recognition of refugee status).

365

366

367

368 369

farm workers were required to remain so for a certain number of years, [but] the same provisions applied equally to aliens”: Statement of Mr. Guerreiro of Brazil, ibid. “Article 26 makes it clear beyond doubt that a Contracting State may not impose such restrictions applicable only to refugees”: Grahl-Madsen, Commentary, at 110. “[T]he Yugoslav delegation had submitted an amendment . . . to cover cases where the fact that refugees resided near the frontier of their country of origin might cause friction between the States. Contracting States should be empowered to prescribe zones in which residence would be forbidden to refugees”: Statement of Mr. Makeido of Yugoslavia, UN Doc. A/CONF.2/SR.11, July 9, 1951, at 16. The proposal was, however, withdrawn: ibid. One country – Burundi – has made a reservation to prohibit refugees from residing “in a region bordering on their country of origin”: https://treaties.un.org, accessed Dec. 21, 2020. Convention Governing the Specific Aspects of Refugee Problems in Africa, 1001 UNTS 45 (UNTS 14691), done Sept. 10, 1969, entered into force June 20, 1974, at Art. II(6). See Chapter 1.5.3 at note 272. See text at note 291. More specifically, any decision to invoke Art. 9 must be predicated on a good faith assessment that restrictive measures are essential to protection of the receiving state’s most vital national interests. The steps taken must be logically connected to eradication of the security concern, may not be of indefinite duration, and may be continued after an individual’s refugee status is affirmatively verified only on the basis of unresolved casespecific security concerns. In order to avail itself of even this discretion, a state must proceed in good faith to investigate the security concerns and to verify refugee status. See generally Chapter 3.5.1.

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Art. 26 allows state parties to subject refugees to “any regulations applicable to aliens generally in the same circumstances.”370 Tajikistan’s ban on travel within 15 miles of its borders with Afghanistan and China371 – applying not just to refugees, but to all non-citizens – is thus not in breach. Similarly the subjection of a particular refugee to security-based constraints on internal movement under a law of general application is not problematic. This understanding is implicit in the CJEU Advocate General’s position that a Kurdish refugee found to have provided support for terrorist causes could be subject to general rules disallowing movement outside his town of residence and requiring twice weekly reporting to police because “the Geneva Convention . . . confirms that refugees have obligations to conform to the laws and regulations of the State in which they seek protection.”372 Because the internal movement of refugees was limited only by a measure that is generally applied to all noncitizens,373 the requirements of Art. 26 were met.374 In contrast, Israel’s invocation of security and safety concerns to detain only asylum-seekers375 was unlawful since the policy was not applicable to all foreign citizens. It was in particular noted by the drafters that refugees would be required to respect “the existence in most countries of frontier or strategic zones, access to which [is] forbidden to aliens.”376 As Grahl-Madsen suggests, refugees may 370

371 372

373 374

375 376

Art. 26 “does not . . . indicate whether particular restrictions are compatible with the rights granted in article 26 as long as they apply, in essence, in a non-discriminatory manner to refugees and other aliens alike”: Zieck, “Freedom of Movement,” at 83. See text at note 315. HT v. Land Baden-Württemberg, Dec. No. C-373/13 (CJEU, June 24, 2015), Opinion of the Advocate General, at [109]. See Chapter 3.2.1. The Turkish representative to the Ad Hoc Committee posed a question of direct contemporary relevance to many states. He “wondered what the position would be in the case of a State which, having adopted a very liberal attitude with regard to aliens, who were subject to no restrictions of time or place, received refugees and wished in some way to restrict the conditions of residence of those refugees. Such a State might be prompted to modify its legislation concerning aliens, which would be a highly regrettable measure”: Statement of Mr. Kural of Turkey, UN Doc. E/AC.32/SR.15, Jan. 27, 1950, at 19. No reply was offered. While the risk posed was real at the time of the Convention’s drafting, the subsequently enacted Art. 12 of the Civil and Political Covenant constrains the risk of downgrading the mobility rights of non-citizens generally in order to be able lawfully to restrict the movements of refugees: see text at note 383 ff. Mr. Kural’s intervention is helpful as a clear indication that it was understood by the drafters that the approach taken to Art. 26 would allow no room for refugee-specific limitations. See text at notes 299–300. Statement of Mr. Kural of Turkey, UN Doc. E/AC.32/SR.15, Jan. 27, 1950, at 14. A limitation of this kind can also be applied to refugees, assuming that it is not itself found to infringe the general duty not to discriminate against non-citizens, including refugees: see Chapter 1.5.5. Marx thus views it as unexceptional that a refugee might be subject to rules that aliens generally “may need a special license to move to overcrowded places or to go to restricted areas”: Marx, “Article 26,” at 1149.

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also be subject to general rules which impose limits on freedom of movement “because of a natural catastrophe, or because of a rebellion, civil war or large scale police operation, that is to say areas where strangers may be in the way, or where their safety cannot be guaranteed.”377 But again, the constraints must not be targeted solely at refugees. The lawfulness of any effort to exclude refugees from border areas prone to armed conflict thus depends on the scope of the prohibition. So long as all persons, or at least all non-citizens, are excluded from that area, refugees may similarly be barred from entry. But if the prohibition is targeted solely at refugees, it is in breach of the Refugee Convention. As a matter of logic and fairness, this duty not to stigmatize refugees makes good sense. While there are often good reasons for a government to deny a right of entry into, or residence in, a given place, it is difficult to see how the fact of being a refugee – as contrasted with simply being a person, or at least a non-citizen – can be relevant to the imposition of a categorical exclusion of this very fundamental freedom.378 While the general rule is thus that lawfully present refugees may be subject to the same limits on freedom of movement and residence as other noncitizens, there are two constraints on that principle. First, because freedom of movement and residence may be limited under Art. 26 only in accordance with “any regulations applicable to aliens generally in the same circumstances [emphasis added],” the Refugee Convention requires the non-mechanistic application to refugees of even limits routinely applied to other non-citizens. This form of words requires states to temper the application to refugees of generally applicable rules in order to compensate for any disadvantages faced by refugees in consequence of their refugeehood – for example, because of the urgency of flight, the severing of ties with the home state, or the inability to plan for relocation.379 Thus, if a reception country normally limits the freedom of internal movement to aliens able to produce a satisfactory security attestation from their country of origin, or grants noncitizens the right to choose their place of residence only after a certain period of residence or sojourn in the host state, it must make some dispensation in administering those rules for refugees whose situation makes perfect compliance an untenable proposition. Malawi’s rule requiring possession of a (very expensive) permit to be able to work380 – thus effectively confining most refugees to camps in order to access the necessities of life – is a clear example 377 378

379

Grahl-Madsen, Commentary, at 111. “Without the freedom to move and to take up residence without official permission, personal freedom would indeed be curtailed”: A. Grahl-Madsen, “Article 13,” in A. Eide et al. eds., The Universal Declaration of Human Rights: A Commentary 203 (1992), at 205. In particular, any distinction in the freedom of movement enjoyed by citizens and that allowed aliens would have to be consistent with the duty of non-discrimination: See text at note 419. See Chapter 3.2.3. 380 See text at note 317.

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of a general norm which, if strictly applied, would fail to take account of the general inability of refugees (relative to other non-citizens) to have planned and saved funds in anticipation of their new circumstances. Indeed, the UN Human Rights Committee has “express[ed] . . . concern that restrictions are imposed on the freedom of movement of asylum-seekers with temporary refugee status,”381 and thus “condemned blanket rules which restrict the movement of all asylum-seekers, indicating that such restrictions can be imposed only after consideration of each particular asylum-seeker’s situation.”382 Second and more generally, Art. 12 of the Civil and Political Covenant delimits the general right of states to control the freedom of internal movement and residence of non-citizens lawfully inside a state’s territory.383 This is a right that “relates to the whole of the territory of a state, including all parts of a federal state,”384 and which imposes both positive and negative duties such that “[t]he state must ensure that [free movement] rights are protected not only from public but also from private interference.”385 The Human Rights Committee has insisted on a broad understanding386 of the right to move and to choose one’s residence freely, finding for example that a “system of mandatory registration at the place of residence which is a prerequisite for residence, employment, acquisition of real estate and access to health services . . . may interfere with the enjoyment of rights under Article 12.”387 Because most aliens cannot insist on a right of entry into a foreign state,388 it is sometimes suggested that non-citizens may “bargain away” their rights under Art. 12 by assenting to conditions of entry which deny them freedom 381

382 383

384

385 386

387

388

UN Human Rights Committee, “Concluding Observations: Lithuania,” UN Doc. CCPR/ C/79/Add.87, Nov. 6, 1997, at [15]. Joseph and Castan, ICCPR, at 399. See generally UN Human Rights Committee, “General Comment No. 27: Freedom of Movement” (1999), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at 173. N. Jayawickrama, The Judicial Application of Human Rights (2017) (Jayawickrama, Judicial Application), at 456. Ibid. at 453. The Committee has determined, however, that Art. 12 “does not have extraterritorial application . . . [T]he State party cannot therefore be held responsible for [its] violation if committed outside the territory and jurisdiction by another State”: ZH v. Denmark, HRC Comm. No. 2602/2015, UN Doc. CCPR/C/119/D/2602/2015, decided Mar. 27, 2017, at [6.4]. UN Human Rights Committee, “Concluding Observations: Turkmenistan,” UN Doc. CCPR/C/TKM/CO/1, Apr. 19, 2012, at [12]. But persons who “because of [their] special ties to or claims in relation to a given country cannot be considered to be a mere alien,” including in particular “long-term residents, including but not limited to stateless persons arbitrarily deprived of the right to acquire the nationality of the country of such residence,” may invoke the right to enter their “own country” under Art. 12(4) of the Civil and Political Covenant: UN Human Rights Committee, “General Comment No. 27: Freedom of Movement” (1999), UN Doc. HRI/ GEN/1/Rev.7, May 12, 2004, at [20].

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of internal movement or residence.389 This is a difficult position to justify in law, based as it is on the notion that individuals may somehow elect to decline rights which are explicitly defined to be inalienable.390 But this logic would in any event not apply to refugees:391 by virtue of the non-negotiability of access for refugees392 and the presumptive lawfulness of a refugee who has met a state party’s procedural requirements for verification of refugee status393 any limits on a refugee’s freedom of movement or residence derived from rules generally applicable to all aliens must meet the requirements of Art. 12 of the Civil and Political Covenant. While the constraints on permissible limitation set by Art. 12 of the Covenant are broad, they are not limitless.394 For example, a limitation may be imposed where necessary “to protect national security,” now understood to include measures necessary to avoid an objectively reasonable, real possibility of directly or indirectly inflicted substantial harm to the host state’s most basic 389

390

391

392 393

394

Schabas suggests, without any analysis, that “the lawful residency of non-nationals may be limited to a part of a State’s territory, such that the freedom of movement and residency is locally restricted”: Schabas, Nowak’s CCPR Commentary, at 304. The view of the UN Human Rights Committee on this issue is awkwardly framed. “Consent for entry may be given subject to conditions relating, for example, to movement, residence and employment. A State may also impose general conditions upon an alien who is in transit. However, once aliens are allowed to enter the territory of a State party they are entitled to the rights set out in the Covenant”: UN Human Rights Committee, “The Position of Aliens under the Covenant” (1986), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [6]. This formulation could be read to suggest that the non-citizen (once allowed to enter the state’s territory) is able to refuse to comply with terms or conditions of admission which conflict with Art. 12. “The States Parties to the present Covenant, considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world . . . [a]gree upon the following articles [emphasis added]”: Civil and Political Covenant, at Preamble. It is difficult to imagine anyone making the argument that a non-citizen could agree to become a slave, or to be subjected to cruel or inhuman treatment, in exchange for permission to enter a foreign state’s territory. Yet under the Covenant, the only legal difference between these rights and Art. 12 is that the latter is derogable during time of national emergency, not a distinction which is relevant to the question of renouncing inalienable rights. Any effort to condition access to protection on the refugee’s preparedness to accept constraints on freedom of movement or residence is unlawful because refugees, unlike most non-citizens, have a legal right to claim protection in a state party under the terms of the Refugee Convention: see Chapter 4.1 at note 132. See Chapter 4.1.2 at note 215. Refugees, including those awaiting the results of verification of their status, are by definition “lawfully in” the reception state: see Chapter 3.1.3 at note 129 ff. “The following common measures most likely constitute permissible restrictions on freedom of movement: traffic safety rules, reasonable restrictions on access to nature reserves or animal sanctuaries, earthquake or avalanche zones, quarantine zones, or areas of civil unrest, and, of course, prohibitions on unlicensed access to private property”: Joseph and Castan, ICCPR, at 407.

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interests, including the risk of an armed attack on its territory or its citizens, or the destruction of its democratic institutions.395 Restrictions on freedom of movement may also be imposed where necessary to protect public order, a notion that – while historically quite fungible396 – has been determined by the Court of Justice of the European Union to “presuppose[], in any event, the existence, in addition to the perturbation of the social order which any infringement of the law involves, of a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society [emphasis added].”397 In considering the permissibility of the German system of assigning persons seeking protection to live in a specific region,398 argued by the government to be a critical means of distributing fiscal burdens and of avoiding social tensions,399 the Court rejected the sufficiency of the fiscal argument even as it left the door open to the argument that the facilitation of social integration might suffice as a justification in some circumstances to impose a constraint on the presumptive right to choose one’s place of residence.400 Under this interpretation, the Sudanese401 and Mozambican402 decisions to relocate refugees from camps where they had lived for many years to a place where self-sufficiency was possible403 might be justifiable on public order grounds.404 But Greece’s indefinite confinement of refugees arriving at 395

396 397

398 399

400 403 404

See Chapter 3.5.1 at note 668 ff. For example, the Danish delegate to the Ad Hoc Committee which drafted the Refugee Convention noted that “Denmark and Czechoslovakia, for example, would undoubtedly have hesitated to admit German refugees in 1938 if they had been obliged to allow them to settle in areas already inhabited by minorities, whose ranks would, in the first place, have been swelled by the refugees and in whose political activity against the unity of the country the refugees might subsequently have participated”: Statement of Mr. Larsen of Denmark, UN Doc. E/AC.32/SR.15, Jan. 27, 1950, at 16. See Schabas, Nowak’s CCPR Commentary, at 319–321. HT v. Land Baden-Württemberg, Dec. No. C-373/13 (CJEU, June 24, 2015), at [79]; JN v. Netherlands, Dec. No. C-601/15 PPU (CJEU, Feb. 15, 2016), at [65]; K v. Netherlands, Dec. No. C-331/16 (CJEU, May 2, 2018), at [41]. But “the purpose for interference does not relate to the specific ‘ordre public’ of the state concerned but rather to an international standard of the democratic society. For instance, the far-reaching restrictions on freedom of internal movement and residency for reasons of apartheid that were proposed by South Africa . . . not only contravened the prohibition of discrimination under Arts. 2(1) and 26 in conjunction with Art. 12, but also the international ‘ordre public’ under Art. 12(3)”: Schabas, Nowak’s CCPR Commentary, at 319. See text at note 307. Kreis Warendorf v. Ibrahim Alo and Amira Osso v. Region Hannover, Dec. Nos. C-443/14 and C-444/14 (CJEU, Mar. 1, 2016), at [12], [21]. Ibid. at [56], [62]–[64]. 401 See text at note 292. 402 See text at note 302. Ibid. Beyond national security and public order concerns, states may also limit freedom of movement where required by considerations of “public health or morals or the rights and freedoms of others.” Thus, a poor country like Sudan might alternatively suggest that the forcible relocation of refugees to areas where they could meet their own subsistence needs was dictated by the need to avoid a huge drain on their resources, thus enabling them to meet the basic needs of their own citizens.

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its islands in order to bolster the viability of their relocation to Turkey or another country405 would be difficult to see as addressing a serious threat to Greece, much less one that impacts a fundamental interest of society. Beyond national security and public order, Art. 12(3) allows limitations only where necessary to protect “public health or morals or the rights and freedoms of others.”406 It is thus difficult to see how European Union restrictions on the residence and movement of refugee claimants in order simply to advance the “public interest,” much less to enhance “swift processing and effective monitoring” of refugees,407 can be brought within its scope. Such overly broad formulations may in any event well infringe the duty to ensure that the restrictions . . . not impair the essence of the right; the relation between right and restriction, between norm and exception must not be reversed. The laws authorizing the application of restrictions should use precise criteria and may not confer unfettered discretion on those charged with their execution.408

Critically, even if the goals of a given restriction on movement or residence can be linked to one of the approved purposes defined by the Covenant, the restriction must still meet Art. 12(3)’s quite demanding legal provisos. First and most basic, a restriction is valid only if it is “provided in law.” As the Human Rights Committee has held, “[t]he law itself has to establish the conditions under which the rights may be limited.”409 This is in line with the appraisal that “restrictions under Art. 12(3) must be set down by the legislature itself . . . Mere administrative provisions are insufficient.”410 As such, the informality of the mass “round-ups” and removals of Somali refugees living in Nairobi411 would, even if otherwise lawful, not meet the standard of the Civil and Political Covenant. Second, the legal restriction must be substantively justifiable as “necessary” to meet one of the listed goals. This language, intended by the drafters of the Covenant to be intentionally strict, requires that a restriction on freedom of movement or residence be objectively justifiable as essential to one of the approved purposes:412 405 407 408

409 410

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See text at note 303. 406 Civil and Political Covenant, at Art. 12(3). See text at note 309. UN Human Rights Committee, “General Comment No. 27: Freedom of Movement” (1999), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [13]. Ibid. at [12]. Schabas, Nowak’s CCPR Commentary, at 314. He concludes that “[a] broad interpretation that . . . seeks to sweep so-called ‘executive legislation’ or administrative provisions under the term [‘prescribed by law’] would . . . correspond with neither the purpose of a limitation clause nor the intentions of its drafters”: ibid. at 315. See text at note 287. “A restriction on this right is . . . consistent with the limitation clause in Art. 12(3) not when the State concerned believes it serves one of the listed purposes for interference but rather when it is necessary for achieving this purpose. Despite the broad discretion

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Article 12, paragraph 3, clearly indicates that it is not sufficient that the restrictions serve the permissible purposes; they must also be necessary to protect them. Restrictive measures must conform to the principle of proportionality; they must be appropriate to achieve their protective function; they must be the least intrusive instrument amongst those which might achieve the desired result; and they must be proportionate to the interest to be protected. The principle of proportionality has to be respected not only in the law that frames the restrictions, but also by the administrative and judicial authorities in applying the law.413

The highly circumscribed nature of the right to apply restrictions has also been insisted upon by the Court of Justice of the European Union. The Court determined that even restrictions on freedom of movement for reasons of national security or public order must truly be “strictly necessary”414 and a “last resort,”415 meaning that an “individual assessment of each case . . . [makes clear that] other less coercive alternative measures cannot be applied effectively.”416 As such, the rigidly operated Israeli “open” detention center at Holot417 – even if it were not already unlawful because it is aimed specifically at refugees, and even if the national security justification could somehow be established – would still fail the necessity requirement since constraints are applied generically and without regard to the risks (or lack thereof) posed by a particular refugee. Third, the restriction must be one that is consistent with the general rights regime established by the Covenant (“and are consistent with the other rights recognized in the present Covenant”).418 The drafters were particularly concerned that any limitation on freedom of movement – even if legally sanctioned and objectively justifiable as necessary to meet one of the approved

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accorded the national legislature, the requirement of necessity is subject to an objective minimum standard, which may be subsequently reviewed by the [UN Human Rights] Committee”: Schabas, Nowak’s CCPR Commentary, at 317. UN Human Rights Committee, “General Comment No. 27: Freedom of Movement” (1999), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [14]–[15]. Indeed, the Committee has recently insisted that the assessment of proportionality “requires a value assessment, weighing the nature and detrimental impact of the interference on the exercise of the right against the resultant benefit to one of the grounds for interfering. If the detriment outweighs the benefit, the restriction is disproportionate and thus not permissible”: UN Human Rights Committee, “General Comment No. 37: Article 21, Right of Peaceful Assembly,” UN Doc. CCPR/C/GC/37, July 23, 2020, at [40]. JN v. Netherlands, Dec. No. C-601/15 PPU (CJEU, Feb. 15, 2016), at [56]. Ibid. at [63]. 416 Ibid. at [61]. 417 See text at notes 299–300. “The permissible limitations which may be imposed on the rights protected under article 12 . . . are governed . . . by the need for consistency with the other rights recognized in the Covenant . . . [T]o be permissible, restrictions must . . . be consistent with all other rights recognized in the Covenant”: UN Human Rights Committee, “General Comment No. 27: Freedom of Movement” (1999), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [2], [11].

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goals – must nonetheless not violate the duty of non-discrimination.419 This preoccupation has been affirmed by the Human Rights Committee: [I]t would be a clear violation of the Covenant if the rights enshrined in article 12, paragraphs 1 and 2, were restricted by making distinctions of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.420

The general duty to ensure internal freedom of movement to all lawfully present persons, including refugees, is thus nicely balanced by permissible limitations that may be relied upon to ensure the host state’s safety and security. For example, the Human Rights Committee considered the application of Art. 12 of the Covenant in the context of a complaint by a Tunisian refugee in France. The complainant was co-founder of the political movement Ennahdha, and fled Tunisia where he was sentenced to death by trial in absentia. After having his status recognized by France, it came to light that the refugee was an active supporter of groups which engaged in violence against civilian populations. Rather than seeking to expel him on public security grounds, the decision was made to confine him to the Digne-lesBains region, and to require him to report daily to police there. This limitation on his internal freedom of movement was upheld by the Committee, though clearly only on the basis of a determination that it was a restriction that was not unduly broad, and which was open to careful scrutiny by national courts: [T]he State party produced evidence to the domestic courts that Mr. Karker was an active supporter of a movement which advocates violent action. It should also be noted that the restrictions of movement on Mr. Karker allowed him to reside in a comparatively wide area. Moreover, the restrictions on Mr. Karker’s freedom of movement were examined by the domestic courts which, after reviewing all the evidence, held them to be necessary for reasons of national security.421

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Schabas, Nowak’s CCPR Commentary, at 319. The meaning of the duty of nondiscrimination is canvassed in depth in Chapter 2.5.5. For example, “EU law is far from being in conformity with . . . Art. 26 [of the Refugee Convention], since Art. 7, para. 1 of the Reception Directive, although it accords to asylum seekers the right to ‘move freely within the territory,’ additionally, entitles Member States to limit such right to ‘an area assigned to them’ by the Member State . . . This provision can thus hardly be perceived to be in accordance with Art. 26 of the 1951 Convention”: Marx, “Article 26,” at 1163. UN Human Rights Committee, “General Comment No. 27: Freedom of Movement” (1999), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [18]. Karker v. France, HRC Comm. No. 833/1998, UN Doc. CCPR/C/70/D/833/1998, decided Oct. 26, 2000, at [9.2]. See also Celepli v. Sweden, HRC Comm. No. 456/1991, UN Doc. CCPR/C/51/D/456/1991, decided Mar. 19, 1993, in which it was determined that it was reasonable to confine a non-citizen terrorist suspect to his home town of 10,000 persons, and to require him to report to the police three times weekly.

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In sum, host governments enjoy reasonable latitude lawfully to limit the freedom of movement and residence of refugees arriving in their territory. Under Art. 31(2), both persons arriving as part of a mass influx and individuals seeking recognition of refugee status whose identity and circumstances of arrival are under investigation may lawfully be detained on a strictly provisional basis. But once the refugee is lawfully present – which includes admission to a procedure for verification of refugee status, as well as so-called temporary admission and failure to establish a system to vet refugee status – Art. 26 requires the termination of all refugee-specific limits on choice of residence and freedom of movement. From that point, only constraints applied to aliens generally may be enforced against refugees, and even then only in a way that takes account of the specificity of the refugee’s predicament. Any such limits are moreover only validly enforced to the extent they are based on unambiguous legislative authority, are objectively necessary to attain one of the purposes defined by the Civil and Political Covenant, and are administered in a non-discriminatory way that is consistent with respect for civil and political rights.

5.3 Self-Employment There is little doubt that the trauma of the refugee experience can be exacerbated by enforced idleness and dependence.422 Ohaegbulom has written of the refugee’s need “to become a whole person again, one who earns his own living and the respect of those around him.”423 Simply put, “[s]elf-reliance can improve the refugee’s self-image and therefore his or her ability to cope with being a refugee.”424 More fundamentally, the refugee’s ability to engage in productive economic activity in the asylum country may also be critical to survival. While international human rights law has evolved to recognize the duty of states affirmatively to assist all persons under their authority – including refugees – to access the necessities of life,425 refugees too often find that in practice they must fend for themselves. 422

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Gorman has argued against what he calls the “Palestinization” of refugees who are forced to remain in dependent situations and are denied the opportunity to pursue self-reliance through economic activity, resulting in their alienation, resentment, and exasperation: R. Gorman ed., Refugee Aid and Development (1993), at 8. See also D. Miserz ed., Refugees – The Trauma of Exile: The Humanitarian Role of the Red Cross and the Red Crescent (1987), at 92. F. Ohaegbulom, “Human Rights and the Refugee Situation in Africa,” in G. Shepherd and V. Nanda eds., Human Rights and Third World Development (1985), at 197. S. Forbes Martin and E. Copeland, Making Ends Meet? Refugee Women and Income Generation (1988), at 3. See generally A. Betts et al., Refugee Economies: Forced Displacement and Development (2016). See Chapter 4.4.

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The focus of this section is the right of refugees to engage in independent economic activity. Under the Refugee Convention’s structure of incremental entitlement, this right accrues at an earlier stage than the right of refugees either to be employed, or to engage in professional practice.426 Because these two means of earning a livelihood may lawfully be withheld from refugees for a period of time, the ability of refugees to survive through their own efforts – for example, by raising food for consumption or sale, trading, or launching their own business – takes on a particular importance for refugees awaiting a decision on refugee status recognition or on access to some alternative mechanism of durable protection. For example, Colombian refugees arriving to seek protection in Venezuela frequently self-settled in border areas from which they could engage in cross-border trade as a means of survival.427 In the less developed world, the right to engage in agricultural activities is usually the most pressing concern. There are sometimes blunt refusals to allow refugees to farm. Sudan, for example, not only denied refugees the right to own land or other property, but imposed strict restrictions on freedom of movement, making it difficult to “access . . . rural labor markets and land, causing inadequate livelihood options and increasing [refugees’] dependency on aid.”428 Kenya confines refugees to camps, refusing them the right to work or to establish businesses. A 2017 bill would have reversed this policy by authorizing the use of land for farming and business by refugees, but was vetoed by the President due to a lack of “public input” from local farmers living near the camps.429 In Turkey, restricted access to land ownership430 has contributed to

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Each of these rights accrues only once a refugee is “lawfully staying” in the country of reception, while the right to engage in self-employment is owed to refugees who are simply “lawfully in” a state party. See generally Chapters 3.1.3 and 3.1.4 for an elaboration of the meaning of these terms. The substance of the rights to engage in employment and professional practice is detailed in Chapters 6.1 and 6.2. See R. Zetter and H. Ruaudel, “Refugees’ Right to Work and Access to Labor Markets – An Assessment: Part I, Synthesis,” Knomad, Sept. 2016 (Zetter and Ruaudel, “Right to Work: Part I”), at 24. R. Zetter and H. Ruaudel, “Refugees’ Right to Work and Access to Labor Markets – An Assessment: Part II, Country Cases,” Knomad, Sept. 2016 (Zetter and Ruaudel, “Right to Work: Part II”), at 164. As a result, “[i]n eastern Sudan, employment opportunities and income sources outside the agricultural sector are few. Camp refugees lack employment, and while some opportunities exist in farms, access to agricultural lands remains limited, and refugees are subject to movement restrictions. Furthermore, poorer households, particularly women and youth, tend to lack the capacity to sustain profitable activities because of lack of access to land; unreliable rainfall and insufficient water resources; lack of adequate tools, equipment, and technologies; and limited coverage of extension services”: ibid. at 167. “Uhuru Rejects Bill Giving Refugees Right to Jobs and Land,” Business Daily, Nov. 8, 2017. See e.g. O. Kadkoy, “‘You Shall Not Buy’: Syrians and Real Estate Ownership in Turkey,” Hurriyet Daily News, Nov. 21, 2016.

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precarious squatting practices among Syrian refugees and exploitative labor at the hands of local farm owners in the agriculture industry.431 In contrast, Guinea allowed traditional land allocation systems – under which land is made available by appeal to a village “friend,” with no government or other involvement – to function as Liberian refugees arrived in that country, leading to a net increase in overall food production.432 More affirmative efforts have been undertaken by Uganda: as part of its initiative to promote refugee self-sufficiency and economic growth, the government provides refugees with small plots of land on which to live and farm, imposes no restrictions on movement, and supports courses on agriculture and other skills.433 Chad has similarly promoted efforts to engage in income-generating and agricultural activities by issuing plots of land to refugees in Koutoufou.434 Such efforts align with the UNHCR’s “graduation model”: The model supports refugees’ immediate needs while building the foundation for longer-term human-capital investments. Developed in rural Bangladesh, the model is now being introduced into urban environments in Ecuador, Egypt, and Costa Rica. The graduation model begins by targeting the stress caused by conditions of extreme poverty, such as food insecurity. In the second stage, participants develop financial discipline by creating a specific savings plan and learning about financial service providers. They then receive training focused on asset preservation and entrepreneurial skills, as well as health and social issues. Finally, participants are matched with sustainable economic activities based on their qualifications, existing market conditions, and assets (including available microloans).435

Some countries have taken a similarly open view of the right of refugees to engage in handicrafts and various forms of trading or commerce. The right of self-employment has explicitly been recognized in relation to refugee claimants in Ecuador,436 though in practice, limited access to loans and other financial support often restrict their ability to embark on independent ventures.437 431

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E. Reidy, “Syrian Refugees in Turkey Face Uncertain Future in Informal Encampments,” Huffington Post, Apr. 22, 2016. R. Black and M. Sessay, “Forced Migration, Land-Use Change and Political Economy in the Forest Region of Guinea,” (1997) 96 African Affairs 587, at 602–604. E. Ohanusi, “Uganda Farming Classes Transform Refugees into Entrepreneurs,” Oct. 28, 2016. “Called Seeds for Solutions, the programme was developed by UNHCR, the UN Refugee Agency, and the Lutheran World Federation (LWF). It helps find the farmland and provides tools, seeds and advice, so that the farmers can grow their own crops to sell at market and to eat at home”: I. Diane, “Chad Farming Project Empowers Sudanese Refugees and Locals,” Aug. 16, 2016. T. Aleinikoff, “From Dependence to Self-Reliance: Changing the Paradigm in Protracted Refugee Situations,” Transatlantic Council on Migration Policy Brief, May 2015, at 5. Zetter and Ruaudel, “Right to Work: Part II,” at 24. 437 Ibid. at 25.

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France438 and Spain439 have adopted self-employment projects tailored to refugees. Following its Supreme Court’s invalidation of an absolute prohibition on refugee claimants engaging in work, Ireland began accepting applications for work authorization in 2018 – but eligibility is limited to those who have been present in Ireland for a period of at least nine months while awaiting refugee status determination. Once granted, the permits allow employment, including self-employment, pending a final decision on their claim.440 In contrast, other countries have taken a hard line on refugee self-employment. Costa Rica will allow refugees to undertake self-employment, but only if the applicant has relevant prior experience and can show that Costa Rican citizens will not be displaced by the refugee’s business.441 Thailand subjects refugees to its general rules prohibiting non-citizens from engaging in thirty-nine occupations, including critical forms of self-employment such as carpentry, weaving, stonework, and dressmaking.442 Refugees in Botswana have complained that there are no funds available to start up independent enterprises.443 Indeed, Botswana issued by-laws in 2002 which deny all non-citizens the right to operate hair salons and barber shops in the Central District – thereby depriving refugees and others of access to one of the few successful options for self-support.444 Refugee claimants in Tanzania are barred from undertaking even limited forms of self-employment, and those who wish to engage in large-scale business must, like all foreigners, pay fees ranging from US$1,000 to 3,000 for a “Class A” resident permit.445 Refugees in India have few opportunities for entrepreneurship as grant programs are generally “too small to help refugees establish their own businesses and cover equipment start-up needs.”446 Zambia has made it practically impossible for refugees lawfully to start a business: 438

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K. Foti and A. Fromm, “Approaches to the Labour Market Integration of Refugees and Asylum Seekers,” (2016) Eurofound 31–32 (Foti and Fromm, “Labour Market Integration”). Ibid. C. Finn, “Asylum Seekers will be Allowed to Work in Ireland under New Rules,” The Journal, June 27, 2018. “To assess this displacement factor, a refugee official must make a geographical reconnaissance of the barrio in which the refugee lives, and generally works, to see if there are Costa Ricans engaged in the same trade. Where there are Costa Rican businesses (usually small workshops attached to living quarters) of the type requested by the refugee, the government may deny the work permit. This procedure ensures that the refugee business does not compete with Costa Rican business”: E. Larson, “Costa Rican Government Policy on Refugee Employment and Integration, 1980–1990,” (1992) 4(3) International Journal of Refugee Law 326, at 338. Joint Foreign Chambers of Commerce in Thailand, “Occupations and Professions Prohibited for Foreign Workers.” Botswana Daily News, Sept. 13, 2000. 444 Gazette (Gabarone), July 3, 2002. Asylum Access, “United Republic of Tanzania Universal Periodic Review – 2nd Cycle,” Sept. 21, 2015, at 5–6. Zetter and Ruaudel, “Right to Work: Part II,” at 53.

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The Immigration Department, the Department of Labour and the Zambia Development Agency (ZDA) further requires refugees and other nonnationals who wish to pursue self-employment as private sector investors . . . to demonstrate proof to invest up to US$250,000 if they are starting a new company and US$150,000 if they are joining an existing company in Zambia. These are tough conditions for most refugees to meet given the fact that most of them left their respective countries under unplanned and very difficult conditions. To ameliorate the situation, Zambia Immigration Department, through administrative action, have moderated the minimum investment threshold for refugees to, at least, K150,000 (i.e. about US$15,000 at current exchange rates).447

Similarly prohibitive registration costs in South Africa led to the establishment of businesses under less formal arrangements, usually in urban areas.448 The 2012 crackdown on “illegal” businesses belonging to Limpopo’s refugee population – an operation that was carried out without regard to whether the targeted businesses were in fact licensed – has been, in part, attributed to this government-imposed hardship.449 Even more bluntly, Bangladesh insists that refugees and foreigners have no right to establish or to operate businesses, engage in trade, or own property.450 Officials have even halted the implementation of self-sufficiency projects by humanitarian organizations in an effort to deter new arrivals from Burma.451 447

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M. Nyamazana et al., “Zambia Refugees Economies: Livelihoods and Challenges,” Study commissioned by the UNHCR Zambia (2017), at 11. “The cost of registering a business under the regular immigration procedures for business visas is prohibitively expensive. Businesses, other than vendors, must demonstrate they have access to about US$350,000 in cash or capital, employ at least five permanent residents, and have proper legal documentation. To avoid such costs, some businesses have set up semi-formally, obtaining only a business license, for a cost of about US$225 per year”: Zetter and Ruaudel, “Right to Work: Part II,” at 151. Ibid. at 152. “According to the information available to UNHCR . . . refugees and asylumseekers have been singled out for business closures, and their goods and produce have been confiscated and destroyed”: UNHCR, “Expert opinion of UNHCR on issues of the right to work for refugees and asylum-seekers,” filed in the case of South African Somali Association v. Limpopo Department of Economic Development, Environment and Tourism, North Gauteng High Court (South Africa), Mar. 14, 2013, at 2. Zetter and Ruaudel, “Right to Work: Part II,” at 5. “Although registered refugees have been provided with training opportunities to start up small businesses in the camps, this training has offered limited prospects. In an attempt to promote self-reliance, in 2009 the UNHCR and the International Labour Organization conducted a joint livelihood assessment of refugees in the Kutupalong and Nayapara refugee camps, which led to the development of a detailed self-reliance road map. This strategy was, however, never effectively implemented because the authorities halted or suspended projects and activities that could enable the refugees to earn an income and acquire skills. By 2011, with the exception of rickshaw repair, income-generating activities within the camps were banned; the authorities also closed the majority of small shops run by the refugees and allowed only limited skills development and training opportunities to continue. In 2012, no new training subjects were allowed despite advocacy by the UNHCR

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Under rules applicable in the European Union, states are required to allow refugees to undertake “self-employed activities subject to rules generally applicable to the profession and to the public service,” but only once refugee status “has been granted.”452 There is thus no European Union rule specifically safeguarding any right to pursue independent economic activity while a refugee awaits adjudication of his or her asylum claim. Instead, regional law provides only that “Member States shall ensure that applicants have access to the labour market no later than 9 months from the date when the application for international protection was lodged if a first instance decision by the competent authority has not been taken and the delay cannot be attributed to the applicant.”453 Unsurprisingly, many states have declined to provide refugees undergoing status assessment with the right to undertake self employment. While persons awaiting status verification are in principle eligible for self-employment in Austria and Greece, administrative and other barriers make it difficult to secure this right in practice.454 In Switzerland, persons awaiting status determination must wait up to 140 days to undertake selfemployment or other work.455 Denmark, France, Germany, and the United

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and partners, and in 2013 the government refused permission for grants to be provided to support refugees’ small businesses. These policies, combined with insufficient levels of assistance, have caused malnutrition in camps”: ibid. at 5–6. EU Qualification Directive (recast), Art. 26(1). EU Reception Directive (recast), at Art. 15. According to one report, refugee claimants in Austria “are allowed to work under a specific ‘contract for work’ (that is, freelance jobs without a qualifying certificate or trade license). For activities where a business license is needed, specific commercial and occupational provisions prevail.” As a result, “[t]here is hardly any self-employment in a regulated trade”: Foti and Fromm, “Labour Market Integration,” at 19. In Greece, “access to the labour market is seriously hampered by the economic conditions prevailing in Greece, the high unemployment rate, further obstacles posed by competition with Greekspeaking employees, and administrative obstacle in order to obtain necessary document, which may lead to undeclared employment with severe repercussions on the enjoyment of basic social rights . . . In 2017, in order to reduce administrative obstacles to the access of asylum seekers to the labour market, and more precisely obstacles with regards [to] the provision of the Tax Registration Number (AFM), without which one cannot legally work, the General Secretary of Migration Policy addressed a letter to the competent authorities, giving instructions for a proper implementation of the law. Moreover, in February 2018, following a decision of the Hellenic Manpower Employment Organisation (OAED), the possibility to provide a certification from the reception facility has been added for asylum seekers willing to register themselves at the OAED registry. Despite these positive developments, difficulties in obtaining an AFM number and unemployment cards from OAED are still reported”: Asylum Information Database, “Country Report: Greece 2018” (2019), at 134–135, www.asylumineurope.org, accessed Mar. 1, 2020. Asylum Information Database, “Country Report: Switzerland 2018” (2019), at 80, www .asylumineurope.org, accessed Mar. 1, 2020. Effective March 1, 2019, Art. 43 was amended to provide that the ban lasts for the duration of the required stay in a federal reception center, which may be as long as 140 days: Communication from C. Hrushka, Mar. 21, 2020 (on file with the author).

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Kingdom simply refuse to allow refugees awaiting the results of status verification to engage in any form of self-employment.456 Refugee Convention, Art. 18 Self-employment The Contracting States shall accord to a refugee lawfully in their territory treatment as favourable as possible and, in any event, not less favourable than that accorded to aliens generally in the same circumstances, as regards the right to engage on his own account in agriculture, industry, handicrafts and commerce and to establish commercial and industrial companies. This rarely invoked article of the Refugee Convention is in several respects quite extraordinary.457 First, it is not derived from either of the usual sources, those being prior refugee conventions and the Universal Declaration of Human Rights. The 1951 Refugee Convention was the first international instrument to speak to the right of refugees to undertake independent economic activity, a notion not even explicitly codified in the subsequently drafted Human Rights Covenants.458 Second, particularly in view of its legal novelty, it is astonishing that the drafters of the Refugee Convention viewed it as essentially uncontroversial, confining most of their discussions on Art. 18 to the question of the appropriate contingent standard for measuring compliance with the right. Yet as an explicit acknowledgment of the right to participate in entrepreneurial activities at the heart of the market economy, this provision is of potentially enormous importance to refugees. It is, in this sense, a critical complement to the right of refugees to acquire, and to deal with, both movable and immovable forms of private property, and to be treated fairly under host state taxation schemes.459 456

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I. Martin et al., “From Refugees to Workers: Mapping Labour-Market Integration Support Measures for Asylum Seekers and Refugees in EU Member States, Volume I: Comparative Analysis and Policy Findings,” Bertelsmann Stiftung (2016), at 23, 40. See also A. Fink and K. Kappner, “Asylum Migration and Barriers to Labor Market Entry: Policy Recommendations for Easier Access,” IREF Policy Paper No. 2015-1, Dec. 2015, at 11–14. “Of the three [Refugee Convention] rights relating to gainful employment, Art. 18 is the most favourable in terms of the fact that it is, in most instances, granted earlier than the other rights and further that it requires States parties to provide ‘as favourable [treatment] as possible’”: A. Edwards, “Article 18,” in A. Zimmermann ed., The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary 973 (2011) (Edwards, “Article 18”), at 974. The closest provision is Art. 6 of the Economic, Social and Cultural Covenant, which affirms “the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts”: International Covenant on Economic, Social and Cultural Rights, 993 UNTS 3 (UNTS 14531), adopted Dec. 16, 1966, entered into force Jan. 3, 1976 (Economic, Social and Cultural Covenant), at Art. 6(1). Importantly, in 2005 the Committee on Economic, Social and Cultural Rights adopted the view that “work” includes selfemployment: See text at note 503. The rights of refugees to own property and to be dealt with equitably under taxation schemes are canvassed at Chapters 4.5.1 and 4.5.2.

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The rationale for the novel provision was blandly said to be that “a certain number of refugees are handicraft workers with special knowledge and occupational skills, or manufacturers familiar with manufacturing processes peculiar to their country of origin.”460 The case for allowing refugees to make use of their entrepreneurial talents appears to have been considered self-evident.461 Nor was there any real consideration given to the substantive scope of Art. 18, including not only the right of refugees to participate in “agriculture, industry, handicrafts and commerce” but also “to establish commercial and industrial companies.” The latter provision clearly grants refugees the right to incorporate their enterprises, thereby securing the usual benefits of limited liability. This list is precisely the same as that proposed in the Secretary-General’s initial draft,462 and was not even debated by the drafters.463 The competing French version of Art. 18, which would have omitted the right of refugees to engage in agricultural self-employment,464 was withdrawn even before debate commenced.465 There can therefore be no question of excluding agriculture from the range of permissible self-employment for refugees. Yet this is effectively the case in Sudan, where refugee-specific prohibitions on land ownership466 – themselves of questionable legality under Art. 13467 – mean that refugees are de facto unable to start farms. Kenya’s refusal to allow refugees to farm468 and Turkey’s bar on land ownership by Syrians469 are similarly problematic. Indeed, because Turkey’s bar on Syrian land ownership is based on concerns about the territorial ambitions of the very state the refugees have fled,470 it raises concerns that Turkey has also failed to respect the prohibition on exceptional measures set by Art. 8 of the Refugee Convention.471 Guinea’s decision to allow refugees access to the traditional land allocation system472 is, in contrast, very much in line with what the drafters intended.

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Secretary-General, “Memorandum,” at 35. Edwards suggests that “[a] separate right was necessary because in some jurisdictions the right to engage in self-employment was reserved only to nationals or restrictions were imposed, such as the passage of time or the length of visa”: Edwards, “Article 18,” at 975. Secretary-General, “Memorandum,” at 35. Grahl-Madsen suggests only that “[i]t is apparent that the expression used [‘self-employment’] must be given the widest possible interpretation”: Grahl-Madsen, Commentary, at 76. France, “Draft Convention,” at 6. Statement of the Chairman, Mr. Chance of Canada, UN Doc. E/AC.32/SR.13, Jan. 26, 1950, at 13. See text at note 428. 467 See Chapter 4.5.1. 468 See text at note 429. See text at note 430. “Turkey . . . felt that Syria might try to stir up instability . . . The law banning Syrian land purchases in Turkey was therefore put in place to prevent Syrians from buying back land in Hanay and somehow trying to reassert sovereignty over the province in that way”: O. Kadkoy, “‘You Shall Not Buy’: Syrians and Real Estate Ownership in Turkey,” Hurriyet Daily News, Nov. 21, 2016. See Chapter 3.5.2. 472 See text at note 432.

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The drafting history of Art. 18 is especially helpful to understand the level of attachment at which the right to engage in self-employment inheres. The proposal was initially that only refugees “regularly resident” (résidant régulièrement) in a state would be entitled to undertake independent economic activity.473 While that level of attachment, subsequently translated into English as “lawfully staying,”474 still governs the rights to undertake employment and to engage in professional practice,475 the text of Art. 18 was amended by the Ad Hoc Committee to grant the right to self-employment at an earlier stage, namely when a refugee is simply “lawfully in” (se trouvant régulièrement sur) the territory of a state party.476 In view of this clear, if unremarked, change, there can be little doubt that all refugees who have regularized their presence in the host state – including those whose short-term presence is authorized, who have been admitted into a process for refugee status verification, or who are present in a state party which elects not to verify status477 – may rely on Art. 18.478 As Robinson writes, The expression “lawfully in their [territory]” cannot be only verbally different from “lawfully staying in the country.” It must mean in substance something else, viz. the mere fact of lawfully being in the territory, even without any intention of permanence, must suffice.479

In line with this understanding, the right of refugee claimants to undertake self-employment is, for example, expressly recognized by Ecuador.480 In contrast, much European practice aligns with the EU Qualification Directive’s authorization to withhold the right to engage in independent economic activity until status has been recognized481 – a practice followed by, for example, 473 475 476

477 478

479

480 481

Secretary-General, “Memorandum,” at 35. 474 See Chapter 3.1.4. See Chapters 6.1 and 6.2. There is no record of debate on this point, the revised text having appeared for the first time in Ad Hoc Committee, “First Session Report,” at Annex I. The point was not dealt with in the subsequent session of the Ad Hoc Committee, nor at the Conference of Plenipotentiaries. See Chapter 3.1.3. Robinson accurately observes, however, that “Art. 18 is not applicable to refugees residing outside the country where the self-employed activity is to be exercised; applicable in such cases is Art. 7(1), i.e. refugees not residing in the country in which they want to engage in self-employment or establish commercial or industrial companies will be permitted to do so only if, under the laws of the country, aliens in general, residing abroad, are authorized to do so and under the same conditions”: Robinson, History, at 116–117. Ibid. at 117. See also Weis, Travaux, at 152: “[P]hysical presence, even a temporary stay or visit, [is] sufficient, in distinction to ‘lawfully staying,’ the terminology used in other Articles.” See text at note 436. See text at note 452. It is thus not correct that “Articles 16(1) and (3) of the Qualification Directive . . . reflect Articles 17, 18, 19 and 22(2) of the Geneva Convention”: European Union Fundamental Rights Agency, Handbook on European Law relating to Asylum, Borders and Immigration (2014), at [8.2.7]. The same misunderstanding was adopted by the High Court of Ireland, which determined that “[t]he Convention does not contain any

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Denmark,482 France,483 Germany,484 Ireland,485 and the United Kingdom.486 Even Swiss practice, which imposes only a maximum 140-day delay on access by refugees to self-employment,487 fails to ensure access to self-employment as soon as lawful presence is attained.488 There is a real logic to the drafters’ decision to grant refugees early access to independent economic activity since, absent some means of enabling refugees to survive economically in the asylum state while awaiting a formal decision on refugee status or other durable protection, it is clear that extraordinary hardship would be inflicted on the many destitute refugees. The Refugee Convention was, of course, drafted prior to the advent of modern social welfare systems, and even before the elaboration of the Economic Covenant’s duty to provide the essentials of life to all persons unable to meet their own basic needs.489 Yet the absence of meaningful support systems for refugee claimants continues today in many places, as noted by the South African Supreme Court of Appeal in a case overturning the denial to asylum-seekers of the permits needed to operate small businesses in Limpopo:490 [If] . . . a refugee or asylum seeker is unable to obtain wage-earning employment and is on the brink of starvation, which brings with it humiliation and degradation, and that person can only sustain him- or herself by engaging in trade, . . . such a person ought to be able to rely on the constitutional right to dignity in order to advance a case for the granting of a license to trade.491

482 486 488

489 491

provision regarding access to the labour market during the asylum process, nor did the state assume any obligation in that regard under the Convention”: NHV v. Minister for Justice and Equality, [2015] IEHC 246 (Ir. HC, Apr. 17, 2015), at [17]. See text at note 456. 483 Ibid. 484 Ibid. 485 See text at note 440. See text at note 456. 487 See text at note 455. It is sometimes suggested that because of the “aliens generally” contingent standard adopted (see text at note 496), refugees may be subjected to generally applicable (nonrefugee-specific) waiting periods to be eligible to engage in self-employment: see e.g. Edwards, “Article 18,” at 980, arguing that “restrictions may be imposed requiring a predetermined length of stay, provided this is a requirement for all aliens generally in the same circumstances.” While plausible, the better view is that because this type of general condition conflicts with the explicit language in the Convention entitling refugees to undertake self-employment once lawful presence is achieved its application would be in breach of Art. 18. Indeed, the contingent standard for Art. 18 was adopted despite the objection of the British representative, who had sought to subject refugees to the general British rule under which self-employment rights might be delayed “for a certain time” (Statements of Sir Leslie Brass of the United Kingdom, UN Doc. E/AC.32/SR.13, Jan. 26, 1950, at 13, 15, the latter indicating that given the amendment he “thought his Government would be obliged to make a reservation”). The rejection of this approach suggests that the article as adopted does not authorize any delay for refugees in accessing self-employment rights once lawful presence is established. See generally Chapter 4.4.1. 490 See text at note 449. Somali Association of South Africa v. Limpopo Department of Economic Development, Environment and Tourism, Dec. No. 48/2014 (SA SCA, Sept. 26, 2014), at [43]. The Court noted, but did not base its judgment on, Art. 18 of the Refugee Convention: ibid. at [37].

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Yet the drafters were also profoundly concerned not to provide for the economic needs of refugees at the expense of the citizenry of reception states. The British delegate, for example, insisted that refugee rights could not compromise the “planned economy” of his country.492 The drafters achieved a workable compromise of interests by authorizing governments to postpone refugees’ access to both employment and professional practice – areas in which the potential for conflict with the domestic labor market is probably both most acute and most visible – while at the same time agreeing to allow refugees to survive economically through their own entrepreneurship. In essence, refugees are allowed to meet their needs by the generation of new economic activity, even as they may initially be barred from competing with citizens for a share of extant employment opportunities.493 This determination to ensure that refugees have early access only to self-generated economic activity is borne out in the only amendment to Art. 18 made at the Conference of Plenipotentiaries. At the suggestion of the Dutch and British representatives, it was agreed that a refugee would have the right to engage in self-employment only “on his own account,”494 thereby clearly distinguishing this right from a right to undertake activities approximating either employment or investment in a concern established or operated by others.495 A true balance between respecting the need of refugees to survive economically and not subjecting the host community to immediate competition from refugees was, however, never really established. While it was agreed that the right to engage in self-employment would inhere at an early stage, the value to refugees of the right was compromised by the decision to define the standard for compliance as simply “treatment as favourable as possible and, in any event, not less favourable than that accorded to aliens generally in the same circumstances.” This contingent standard builds on the residual minimum standard in Art. 7 (“the same treatment as is accorded to aliens generally”).496 It clearly disallows any restrictions on self-employment aimed strictly at 492

493

494 495

496

Statement of Sir Leslie Brass of the United Kingdom, UN Doc. E/AC.32/SR.13, Jan. 26, 1950, at 13. Edwards suggests, but does not provide support for, an alternative thesis that “[a]s Art. 18 was considered to impose the least financial or other burdens on the State of the employmentrelated provisions, a lower [attachment] standard was agreed [emphasis added]”: Edwards, “Article 18,” at 978. She later acknowledges, however, that “[a]t the time of drafting, there was concern that the economic needs of refugees not be at the expense of citizens of host States”: ibid. at 979. UN Doc. A/CONF.2/SR.9, July 6, 1951, at 19. The right of refugee claimants (as persons holding rights only provisionally) to undertake self-employment may of course give rise to practical challenges, e.g. “taking out bank loans, employing workers, and engaging in business transactions” without a durable status: Edwards, “Article 18,” at 978. Yet as Edwards rightly notes, these problems are “not [problems] necessarily for refugee law, however”: ibid. See Chapter 3.2.1.

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refugees, rather than at non-citizens generally. Thus, Art. 18 was infringed by the Costa Rican regime under which refugees alone were denied the right to self-employment if their activities were deemed likely to compete with indigenous enterprises. More generally, where there is truly generality of access by non-citizens to self-employment or other independent economic activity – as evinced by, for example, relevant domestic laws or practices, a pervasive pattern of bilateral or multilateral agreements, or de facto enjoyment of the right by most aliens – the right to engage in self-employment automatically accrues to refugees as well.497 On the other hand, if non-citizens are only rarely allowed to engage in selfemployment, or if self-employment is strictly a special right genuinely associated with unique bilateral or similar arrangements, it is not a right that necessarily inheres in refugees pursuant to Art. 18 of the Refugee Convention. Thus, Botswana’s refusal to allow any non-citizen to operate a hair salon or barber shop498 may not infringe Art. 18, since refugees are caught by what appears to be a rule generally applicable to all non-citizens. Under this standard, it is also clear that refugees should normally be expected to comply with routine requirements to undertake self-employment, such as the acquisition of a license, and be subject to the normal constraints on the scope of such activity.499 As such, Thai rules barring non-citizens generally from self-employment in certain fields500 may reasonably be applied to refugees as well (though many forms of activity on the prohibited list – such as carpentry, weaving, stonework, and dressmaking – would likely be difficult to sustain as reasonable constraints in keeping with the duty of nondiscrimination).501 On the other hand, Art. 18 is not respected by the Bangladeshi decision not only to apply to refugees the general rule prohibiting non-citizens from trading or operating a business, but to do so in tandem with the prohibition of externally funded self-help projects for refugees as a means of deterring new refugee arrivals.502 Refugees may only be subject to the usual rules governing the treatment of non-citizens, applied in the usual way – not when leveraged in order to achieve a punitive end. The negative consequence for refugees of assimilation to “aliens generally” – that states may lawfully exclude non-citizens and hence indirectly also refugees from self-employment – may, however, be less grave than it would seem. The UN Committee on Economic, Social and Cultural Rights determined in 2005 that the right to work codified in Art. 6 of the Economic Covenant “encompasses all forms of work, whether independent work or dependent wage-paid work [emphasis added].”503 Read in tandem with its more general position that 497 500 503

Ibid. 498 See text at note 444. 499 See Robinson, History, at 117. See text at note 442. 501 See Chapter 1.5.5. 502 See text at notes 450–451. UN Committee on Economic, Social and Cultural Rights, “General Comment No. 18: The Right to Work,” UN Doc. E/C.12/GC/18, Nov. 24, 2005, at [6]. See also Elisabeth de Blok v. Netherlands, CEDAW Comm. No. 36/2012, UN Doc. CEDAW/C/57/D/36/2012,

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“[a]ll persons under the jurisdiction of the State concerned should enjoy Covenant rights . . . includ[ing] asylum seekers and refugees, as well as other migrants, even when their situation in the country is irregular,”504 it is possible now to argue that non-citizens – including refugees – are generally entitled to undertake self-employment (as well as other forms of work) without constraints.505 It would then follow that the contingent standard of the Refugee Convention’s Art. 18 has been rendered irrelevant as a practical matter, since refugees would under general human rights law have the same presumptive right to undertake self-employment as citizens.506 But until and unless this novel understanding of non-citizen work rights, including the right to self-employment, is embraced, Art. 18 of the Refugee Convention affords critical relief from the dominant practice of excluding non-citizens from some or all forms of self-employment. This is because Art. 18 of the Refugee Convention goes beyond requiring simple equality between refugees and aliens generally. The drafters instead opted for what they intended to be an intermediate contingent standard between the baseline of Art. 7 and the assimilation of refugees to either nationals or the citizens of most-favored states. This decision followed from the intervention of the American representative, who had criticized reliance simply on the residual contingent standard, noting that granting refugees the same right to engage in self-employment as foreigners generally “would confer no real benefit on refugees.”507 He therefore “wondered whether it might not be possible to find a third solution, whereby refugees would be granted not the most favourable treatment, but a treatment more favourable than that given to foreigners generally.”508 The proposal met

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decided Feb. 17, 2014, at [8.4], determining that “the notion of ‘all employed women’ cover[s] not only women in an employment relationship, but also those self-employed.” UN Committee on Economic, Social and Cultural Rights, “Duties of States towards Refugees and Migrants under the International Covenant on Economic, Social and Cultural Rights,” UN Doc. E/C.12/2017/1, Mar. 13, 2017, at [3]. This issue is addressed in detail in Chapter 6.1.1 at note 43 ff. A narrower view of the implications of the standards set by the Committee on Economic, Social and Cultural Rights may, however, be taken. Focusing on the Committee’s view that the only “immediate duty [is] to ensure that the essential minimum content of the Covenant rights [is] guaranteed to all refugees and migrants under their jurisdiction” (UN Committee on Economic, Social and Cultural Rights, “Duties of States towards Refugees and Migrants under the International Covenant on Economic, Social and Cultural Rights,” UN Doc. E/C.12/2017/1, Mar. 13, 2017, at [11]), the only pertinent “core obligation” under Art. 6 is framed to require “access to employment,” not to “work” generally, thus an immediate right to self-employment may not be guaranteed: UN Committee on Economic, Social and Cultural Rights, “General Comment No. 18: The Right to Work,” UN Doc. E/C.12/GC/18, Nov. 24, 2005, at [31(a)]. The implication would then be that access to self-employment may be secured more gradually on the basis of the usual progressive implementation standard: see generally Chapter 1.5.4 at note 405 ff. Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.13, Jan. 26, 1950, at 14. Ibid.

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with general agreement,509 resulting in amendment of the draft article in two ways. First, states must extend to lawfully present refugees “treatment as favorable as possible” as regards access to self-employment. As earlier set out,510 this duty requires a state party to give consideration in good faith to the nonapplication to refugees of even limits on self-employment generally applied to other aliens. At the very least, this means that refugees should clearly not be barred from independent economic activity in a mechanistic or absolutist way. More generally, “[t]his implies a positive effort on the part of the State to facilitate self-employment and lift restrictions from refugees,”511 as exemplified by Malta’s decision not to apply its usual rules restricting self-employment by non-citizens to refugees.512 Indeed, the standard would ideally inspire states to undertake affirmative measures, such as start-up funds and other forms of compensatory assistance to refugees wishing to establish businesses – as Chad and Uganda did by providing refugees with land for cultivation.513 But because Art. 18 requires only that states give consideration in good faith to the nonapplication to refugees of limits generally applied to aliens, a decision fairly reached not to provide refugees with affirmative assistance – for example, India’s decision that it would not fund grant programs at a level sufficient to enable refugees to embark on entrepreneurial ventures514 – is not per se in breach of this Convention duty.515 It follows that the decisions by France and Spain to adopt self-employment projects tailored to refugees516 – while laudable – cannot be said to have been required by Art. 18.517 509

510 511

512 515

516 517

Mr. Kural of Turkey “appreciated the humanitarian motives of the United States representative and felt that a formula should be found urging States to accord to refugees treatment more favourable than that given to foreigners generally”: Statement of Mr. Kural of Turkey, ibid. at 15. Indeed, the Brazilian representative would have preferred an even stronger standard: ibid. See Chapter 3.2.1. R. da Costa, “Rights of Refugees in the Context of Integration: Legal Standards and Recommendations,” UNHCR Legal and Protection Policy Research Series, UN Doc. POLAS/2006/02, June 2006 (da Costa, “Rights of Refugees in the Context of Integration”), at 54. See text at note 438. 513 See text at notes 432–444. 514 See text at note 446. It may of course be possible to demonstrate that the failure to enfranchise refugees in such affirmative programs is discriminatory and thus contrary to the broadly applicable duty to ensure equal protection of the law under Art. 26 of the Civil and Political Covenant: see Chapter 1.5.5. But there is no legal basis to insist that the “in the same circumstances” language effectively requires the provision to refugees of affirmative self-employment benefits reserved for most-favored foreigners or citizens: cf. Edwards, “Article 18,” at 980. As Edwards concedes, “[t]he emphasis on ‘on their own accord’ . . . indicates that States parties wanted minimal commitment on their behalf”: ibid. Foti and Fromm, “Labour Market Integration,” at 31–32. At least for developed states, however, it may be that the duty of progressive implementation under Art. 2(1) of the Economic Covenant can fairly be read to require the adoption

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Second, the obligation under Art. 18 is not simply to grant refugees whatever access to self-employment non-citizens generally receive, but rather to ensure that refugees are assimilated to aliens generally “in the same circumstances.” As previously described,518 this means that there is a duty to exempt refugees from general requirements which the refugee cannot meet by virtue of his or her refugeehood – for example, because of the urgency of flight, the severing of ties with the home state, or the inability to plan for relocation.519 A refugee’s circumstances might therefore require that he or she be exempted from “fulfilling the same documentation requirements as other aliens, or presenting evidence of past income levels, to which a refugee may not have access; or exemptions from high fees for obtaining such documentation,”520 for example as related to such matters as “business licenses, registration for income tax, [and] filing of accounts.”521 Greece’s failure to resolve the impasse for refugee claimants to receive tax registration numbers required to engage in self-employment522 is an example of a practice that is at odds with this standard. The “in the same circumstances” language more generally requires states to tailor generally applicable requirements which fail to take account of the hardships already endured by refugees, logically including a responsibility to minimize the usual barriers to undertaking independent economic activity – meaning that Austria ought to less rigidly apply its business licensing rules to refugees,523 and Tanzania should give serious consideration to exempting refugees from paying the usual US$1,000–3,000 fee for a self-employment permit.524 Zambia’s rules that authorize self-employment permits only for refugees with a net worth of US$15,000 – roughly ten times the average per capita income in that country525 – are similarly problematic. As the Jesuit Refugee Service explained, “[t]his condition is insurmountable for most refugees, who have lost their previously accumulated capital in the process of fleeing their country.”526 While Zambia clearly understands the importance of charging refugees a reduced self-employment fee compared to others, the reduction made is insufficient to take real account of the disadvantages that accrue from involuntary alienage.527

518 521

522 525

526 527

of such measures now that self-employment has been determined to be a form of “work” guaranteed by Art. 6 of the Covenant. See generally text at note 503 and Chapter 1.5.4. See Chapter 3.2.3. 519 Ibid. at note 309. 520 Edwards, “Article 18,” at 979. UNHCR, “Expert opinion of UNHCR on issues of the right to work for refugees and asylum-seekers,” filed in the case of South African Somali Association v. Limpopo Department of Economic Development, Environment and Tourism, North Gauteng High Court (South Africa), Mar. 14, 2013, at 3. See text at note 454. 523 Ibid. 524 See text at note 445. See text at note 447. Average per capita GDP in Zambia is approximately US$1,500: countryeconomy.com/gdp/zambia, accessed Sept. 1, 2020. (2001) 90 JRS Dispatches (Apr. 7, 2001). Indeed, restrictions such as the Zambian regulations, which are aimed solely at refugees, are even more flagrant violations of the Refugee Convention. Whatever the flexibility

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in t el l e c tu a l pr o p er t y r i g h ts

901

In sum, under the compromise reached by the Convention’s drafters, lawfully present refugees – including, for example, those awaiting a decision on recognition of refugee status – are entitled to engage in self-employment (though not yet to undertake professional or other employment). Importantly, this critical means of ensuring refugees’ ability to sustain themselves economically includes not just the right to engage in trade or commerce, but also the right to undertake agriculture and to establish companies. While the right of lawfully present refugees to be self-employed is subject to rules applicable to aliens generally, such rules must not be mechanistically applied to refugees. Rather, states are obliged by Art. 18 both to consider in good faith the nonapplication to refugees of even generally applicable limits on self-employment, and in any event to exempt refugees from administrative or other burdens which the refugee cannot readily meet by virtue of his or her refugeehood – for example, because of the urgency of flight, the severing of ties with the home state, or the inability to plan for relocation.

5.4 Intellectual Property Rights No prior refugee treaty expressly dealt with the issue of intellectual property rights. This is likely because such protection was thought to have been unnecessary. Refugees would not typically have encountered any difficulty claiming intellectual property rights, since non-citizens have routinely been understood to be entitled to assert such interests. And while some states condition access to their courts for the enforcement of intellectual property rights by non-citizens on the existence of reciprocity – meaning that the citizens of the state in which enforcement is sought can claim comparable protections in the refugee’s country of citizenship – these barriers to enforcement abroad of intellectual property claims did not apply to refugees. This is because earlier refugee treaties included a general duty to exempt refugees from any requirements of reciprocity.528 But the 1951 Convention ended this blanket exemption of refugees from reciprocity requirements (diplomatic reciprocity requirements now being preserved, and even legislative and de facto reciprocity requirements being waived only after three years’ residence in a state party).529 Without the benefit of an exemption from reciprocity rules, many refugees would, in practice, have been unable to protect their intellectual property rights outside their country of origin.530

528 530

granted states by virtue of Art. 18’s comparatively low contingent standard of treatment, it simply cannot be read to authorize refugee-specific constraints of any kind: See text at note 496. See Chapter 3.2.2 at note 266. 529 See Chapters 3.2.1 and 3.2.2. There was agreement that this would be inequitable, since intellectual property “is the creation of the human mind and recognition is not a favour”: Secretary-General, “Memorandum,” at 27.

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Refugee Convention, Art. 14 Artistic Rights and Industrial Property In respect of the protection of industrial property, such as inventions, designs or models, trade marks, trade names, and of rights in literary, artistic and scientific works, a refugee shall be accorded in the country in which he has his habitual residence the same protection as is accorded to nationals of that country. In the territory of any other Contracting State, he shall be accorded the same protection as is accorded in that territory to nationals of the country in which he has his habitual residence. Economic, Social and Cultural Covenant, Art. 15(1)(c) The States Parties to the present Covenant recognize the right of everyone . . . to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author. The drafts prepared by each of the Secretary-General and the French government proposed avoiding the effect of reciprocity requirements by mandating the assimilation of refugees to most-favored foreigners for purposes of enforcing intellectual property rights.531 That is, under these proposals refugees present in any state party would have been automatically entitled to invoke whatever mechanisms to protect intellectual property that country was willing to make available to the citizens of any foreign country “by treaty or usage,”532 including procedures open only to the nationals of countries united in special economic or other associations. This rule would not have imposed any particular model on a given state party, but would have required that every refugee be granted the best protection afforded any non-citizen. Even at the first session of the Ad Hoc Committee, however, the British delegate expressed concern about this approach. Despite his acceptance of the need to exempt refugees from reciprocity requirements in the enforcement of intellectual property rights, he questioned whether the assimilation of refugees to most-favored foreigners was the right mechanism to adopt.533 Additional 531

532 533

“In respect of industrial and intellectual property (copyright, industrial property, patents, licences, trademarks, designs and models, trade names, etc.), refugees (and stateless persons) shall enjoy the most favourable treatment accorded to nationals of foreign countries”: ibid. at 27. The French draft of the convention took essentially the same approach, though with a slightly different list of the interests to be protected. Specifically, the French proposal omitted the protection of “licences” found in the Secretary-General’s draft and added a reference to “scientific property”: France, “Draft Convention,” at 4. Ad Hoc Committee, “First Session Report,” at Annex II. “[W]hile the Committee was trying, as it should, to protect refugees against discrimination, it should not go to the other extreme of establishing discrimination in favour of refugees. He shared the uneasiness of other members regarding the most-favoured-nation clause”: Statement of Sir Leslie Brass of the United Kingdom, UN Doc. E/AC.32/SR.10, Jan. 24, 1950, at 7.

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force was given to this argument when the Chairman of the Ad Hoc Committee drew the attention of representatives to an expert report addressing the Berne Convention on the Protection of Literary and Artistic Works.534 The gist of this analysis was that the Berne Convention, the main treaty regulating the transnational enforcement of copyright in literary and artistic property, did not provide for the enfranchisement of non-citizens on the same terms as the nationals of most-favored countries.535 Instead, it established a uniform standard for the enforcement of intellectual property claims abroad, based on whether the individual seeking enforcement was a citizen of a state party to the relevant treaty: Taking Denmark as an example, any Dane who wrote a book had the Danish copyright wherever the book might be published. The same was true if the author was a national of a country adhering to the Berne Convention. If the author was a national of a country not adhering to the Convention, his rights were safeguarded in Denmark only if the book was first published there. Finally, the rights of a stateless author had no protection anywhere. With regard to the last of those situations, some change was certainly needed; but supposing that a national of a country not adhering to the Berne Convention became a refugee and fled to another country not adhering to that Convention, it would be unfair if merely by becoming a refugee he were to receive better treatment than a citizen of his country of refuge.536

Concern about fairness arose because if a refugee’s asylum country were not itself a party to the Berne Convention, its nationals would have no guarantee of most-favored-national treatment when seeking to enforce intellectual property rights in a third country. But a refugee residing in that asylum state, if entitled to most-favored-national treatment in any state party to the Refugee Convention, would be able to claim preferred rights in the third country and, to that extent, would enjoy a benefit not open to the citizens of his or her host state. It was generally felt that the Refugee Convention should compensate for the disadvantages of refugeehood, but not operate in a way that was significantly different from the general approach under the Berne Convention.537 534

535

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828 UNTS 221 (UNTS 11850), revised in Stockholm, July 14, 1967 (Berne Convention). The Berne Convention is today subscribed to by 178 states: www.wipo.int/treaties/en, accessed Mar. 1, 2020. The Berne Convention regulates “all literary and artistic works, including photography, films, software, databases, all types of internet content, etc.”: Metzger, “Article 14,” at 900. “[E]xisting conventions on the subject . . . applied to nationals rather than to refugees, hence such a clause was needed for the protection of the latter”: Statement of Mr. Weis of the International Refugee Organization, UN Doc. E/AC.32/SR.10, Jan. 24, 1950, at 8. Statement of the Chairman, Mr. Larsen of Denmark, UN Doc. E/AC.32/SR.36, Aug. 15, 1950, at 20–21. The United Kingdom, for example, “cannot agree to accord refugees in respect of these matters the most favourable treatment accorded to nationals of foreign countries. They

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The Ad Hoc Committee agreed that it was entirely reasonable to avoid the penalization of a refugee because of the failure of his or her country of origin to assist other countries to enforce the intellectual property rights of their citizens – after all, since a refugee is by definition a person who no longer enjoys the protection of the home state, there is little logic to holding him or her hostage to the whims of that country. On this basic point, the drafters went beyond what the Secretary-General and France had proposed, deciding that in the asylum state refugees should be assimilated to citizens (not just most-favored foreigners) for purposes of enforcing their intellectual property rights. It was felt, though, that refugees should not be able to avoid the essential premise of the Berne Convention, namely that the enforcement abroad of intellectual property rights was generally contingent on the individual coming from a state party to the intellectual property treaty regime.538 Justice could be done to refugees simply by substituting the country in which they were residing for their country of citizenship in determining where, and to what extent, they could enforce their intellectual property claims in foreign countries.539 The Drafting Committee therefore recommended a text based on these points of consensus,540 which provided the essential model approved for the Convention:541

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would, however, be prepared to consider sympathetically the possibility of according refugees the same protection as the nationals of the country in which they are resident, subject to the same conditions and formalities as apply to such nationals”: United Nations, “Compilation of Comments,” at 41. “If a book was first published in the United Kingdom, any author could secure the United Kingdom copyright; if it was published in a country adhering to the Berne Convention, the author could also secure that copyright . . . The United Kingdom proposal was therefore that refugees in their country of residence should receive the rights normally accorded to nationals of that country . . . The rights they would receive for books first published in other countries would not depend on whether those countries were signatories to the Convention or not”: Statement of Sir Leslie Brass of the United Kingdom, UN Doc. E/AC.32/SR.36, Aug. 15, 1950, at 21–22. See also Statement of Mr. Herment of Belgium, ibid. at 22: “[T]he difficulties referred to could perhaps be avoided by according a refugee the same treatment as was accorded to nationals of the country in which he found himself (‘national treatment’).” “‘[N]ational treatment’ should not . . . apply to refugees resident in a country not a signatory to the Convention”: Statement of Mr. Herment of Belgium, ibid. at 22. While the Chairman based his remarks on the assumption that the Berne Convention was designed to protect the rights of publishers as well as those of authors, his analysis is comparable. “The fairest solution would be to provide for ‘national treatment’ in the country where the publisher was resident, and in other countries for the same treatment as was normally accorded to citizens of that country, and also to provide for protection of the copyright in any country where the book might first be published”: Statement of the Chairman, Mr. Larsen of Denmark, ibid. “Article [14] was revised by the Committee to bring this provision into conformity with existing Conventions on the subject”: Ad Hoc Committee, “Second Session Report,” at 12. The President of the Conference of Plenipotentiaries observed that “[t]he question of nationality entered into the matter, inasmuch as the recognition, for example, of a person’s rights in his literary, scientific or artistic works depended on whether the country of which he was a national or in which he resided had signed the relevant international convention.

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In respect of the protection of industrial property, such as inventions, designs of models, trade marks, trade names, etc., and of rights in literary, scientific and artistic works, a refugee shall be accorded in the country in which he is resident, the same protection as is accorded to nationals of that country. In the territory of another Contracting State, he shall be accorded the same protection as is accorded in that territory to nationals of the country in which he is resident.542

Art. 14 thus entitles a refugee to enforce intellectual property rights, whether in the asylum country or in another state party to the Refugee Convention, to exactly the same extent as a citizen of his or her asylum country.543 In essence, it effected an indirect amendment of the Berne Convention for state parties to the Refugee Convention, requiring those states to assimilate refugees living in their country to their own citizens for purposes of the enforcement of intellectual property rights. The substantive scope of the interests protected by Art. 14 is not, however, restricted to the issue of literary and artistic rights on which debate focused.544 To the contrary, the Refugee Convention also protects “industrial property,” and was amended to add a reference to “inventions.”545 More generally, the nature of the interests protected includes the refugee’s “literary, artistic and scientific rights [emphasis added].”546 The only substantive reduction from the scope of protection originally proposed by the Secretary-General was to eliminate the references to “licences,”547 “copyright,”548 and “patents,”549 decisions

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To quote an example, it might reasonably be asked why a refugee from a country which had not acceded to such a convention and who resided in a country of asylum which had also not signed the convention should, when residing in Switzerland for a few days, be given the same protection in that respect as a Swiss national”: Statement of the President, Mr. Larsen of Denmark, UN Doc. A/CONF.2/SR.7, July 5, 1951, at 21. “Report of the Drafting Committee,” UN Doc. E/AC.32/L.40, Aug. 10, 1950, at Art. 9. As Weis concludes, “[t]he scope of the rights depends on the municipal law of the country concerned and the international conventions to which it is a party”: Weis, Travaux, at 122. “The scope of Art. 14 does not produce any doubts: it is the totality of creations of the human mind”: Robinson, History, at 108. The addition of this reference was not formally debated, but was included in the draft adopted at the second session of the Ad Hoc Committee: Ad Hoc Committee, “Second Session Report,” at 18. Ad Hoc Committee, “First Session Report,” at Annex I. No reference to “licenses” was made in the French government’s initial proposal for what became Art. 14: see note 531 above. While there was no debate specifically on this point, the reference was omitted from the text as adopted at the second session of the Ad Hoc Committee: Ad Hoc Committee, “Second Session Report,” at 18. The British representative “reserved the position of his government regarding copyright provisions in the article” at the first session of the Ad Hoc Committee: Statement of Sir Leslie Brass, UN Doc. E/AC.32/SR.10, Jan. 24, 1950, at 8. While not the subject of a recorded discussion, the reference to copyright was omitted in the text adopted at that first session: Ad Hoc Committee, “First Session Report,” at Annex I. The French representative expressed some concern at the decision of the Drafting Committee to delete the express reference to patents: Statement of Mr. Juvigny of

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prompted by a desire to refer only to “the thing protected” and not to “a method of protection.”550 Instead of guaranteeing refugees access simply to these particular modes of protecting intellectual property rights, the drafters opted to insert a more comprehensive duty to grant refugees “the same protection” as enjoyed by citizens of the host country. Thus, refugees are entitled to protect and assert their intellectual property rights via licenses, patents, or copyright, in addition to any other means of protecting their interests which may be made available to nationals.551 The net utility of Art. 14 in assisting refugees to enforce their industrial property rights was nonetheless, at least initially, quite limited.552 This is because the provisions of Berne’s parallel treaty on issues of industrial property, the Paris Convention for the Protection of Industrial Property,553 already provided protection superior to that granted by Art. 14 at the time of the Refugee Convention’s adoption: Persons within the jurisdiction of each of the countries of the Union shall, as regards the protection of industrial property, enjoy in all other countries of the Union the advantages that their respective laws now grant, or may hereafter grant, to their nationals [emphasis added].554

In contrast, Art. 14 of the Refugee Convention only provides an exemption from reciprocity for refugees who are “habitually resident” in a state party.555

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France, UN Doc. E/AC.32/SR.41, Aug. 23, 1950, at 8. The American representative agreed with this concern: Statement of Mr. Henkin, ibid. Statement of Sir Leslie Brass of the United Kingdom, ibid. at 9. In response to the French and American proposal to reinsert a reference to patents, “[t]he Chairman felt that such an insertion would be illogical, since article [14] made no reference to the means of affording protection. In English, a ‘patent’ was a means of protecting an invention”: Statement of the Chairman, Mr. Larsen of Denmark, ibid. at 8. For example, the British representative noted that “[i]n the case of a trademark, it was the registration which afforded protection and in the case of an invention it was the patent”: Statement of Sir Leslie Brass of the United Kingdom, ibid. at 9. The debates of the Ad Hoc Committee were suspended on the motion of the Israeli delegate to obtain expert advice on the best way to protect intellectual property interests beyond those covered by the Berne Convention, but there is no indication of any effort substantively to tailor Art. 14 to address the broader range of issues: UN Doc. E/AC.32/ SR.36, Aug. 15, 1950, at 23. 828 UNTS 305 (UNTS 11851), revised in Stockholm July 14, 1967 (Paris Convention). The Paris Convention has been subscribed to by 188 states: www.wipo.int/treaties/en, accessed Mar. 1, 2020. This is the language of the treaty as it existed at the time of the Refugee Convention’s drafting, subsequent to the London Amendment of June 2, 1934: LNTS 4459, at Art. 2(1). The claim that “the lawful presence or staying of the refugee is without significance for the application of Art. 14. Intellectual property protection is granted both to legal and illegal refugees” (Metzger, “Article 14,” at 905) is important, though somewhat overstated. As analyzed at Chapter 3.1.3, illegal presence does not per se mean that habitual residence cannot be established. It is, however, generally understood to be a strong proxy against the establishment of habitual residence.

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While this term of art is a flexible notion that does not focus on legality of status alone but rather seeks to define the individual’s center of interests in a holistic way,556 it nonetheless requires more than the fact of physical presence, the standard under the Paris Convention. At least in 1951, then, the only net benefit of Art. 14 for refugees living in a state party to the Paris Convention would have been the Refugee Convention’s insistence that the asylum country itself protect resident refugees’ industrial property rights domestically on the same terms as it did those of its own citizens (though this was not generally a problem in any event). The ground reality has, however, changed in the years since the Refugee Convention came into force. The Berne Convention was amended in 1967 to provide that “[a]uthors who are not nationals of one of the countries of the Union but who have their habitual residence in one of them shall, for the purposes of this Convention, be assimilated to nationals of that country.”557 Art. 14 of the Refugee Convention therefore does not really improve upon this general language for purposes of enabling refugees to enforce their literary and artistic claims either domestically or abroad. On the other hand, amendments to the Paris Convention tended in the opposite direction. The earlier language of that treaty, under which it was sufficient simply to be “within the jurisdiction” of a state party to claim exemption from reciprocity in other countries, was deleted. Non-citizens must today be “domiciled . . . in the territory of one of the countries of the Union” to be treated as a citizen for purposes of enforcing their industrial property rights abroad – a seemingly more exacting requirement than the Refugee Convention’s rule that Art. 14 rights inhere in refugees who are “habitually resident” in a state party. Yet even here the utility of the Refugee Convention’s Art. 14 may be more apparent than real. As described above,558 the modern understanding of “domicile”559 is the state where the refugee is both physically present and in 556 558 559

See Chapter 3.1.3 at note 183 ff. 557 Berne Convention, at Art. 3(2). See Chapter 3.2.4 at note 362 ff. There was, however, much more concern about the narrowness of “domicile” at the time of the Convention’s drafting. Sweden pressed for the incorporation of the notion of domicile (see Statement of Mr. Petren of Sweden, UN Doc. A/CONF.2/SR.7, July 5, 1951, at 19), but the French government objected that “the concept of ‘domicile,’ entailing as it did certain disadvantages from the legal point of view, involved difficulties”: Statement of Mr. Rochefort of France, ibid. at 20. The Belgian representative similarly argued that “it would not be possible to require of a refugee that he possess a domicile”: Statement of Mr. Herment of Belgium, UN Doc. A/CONF.2/SR.8, July 5, 1951, at 5. More fundamentally, the representative of Colombia provided a principled rationale for referring to habitual residence rather than to domicile in the context of Art. 14. “There was a difference between rights dependent on personal status and other civil rights, for example, property rights such as those under discussion. In the former case, the concept of ‘domicile’ might be suitable, but the concept of ‘residence’ was preferable so far as

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which he or she intends to reside on an indefinite basis – thus ordinarily the country of asylum. Given developments in the law of domicile – that the intention to remain can emerge post-arrival,560 that there need be no intention to remain permanently,561 and that an indeterminate contingency to depart does not undermine the intention to remain on an indefinite basis562 – the Paris Convention’s reliance on domicile rather than habitual residence563 is unlikely to pose any real disadvantage for refugees.564 And since the Paris Convention also extends the right to enforcement abroad to non-domiciled non-citizens with a “real and effective industrial or commercial establishment” in a state party, Metzger is surely right to conclude that “it is hardly likely to

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artistic rights and industrial property were concerned”: Statement of Mr. GiraldoJaramillo of Colombia, UN Doc. A/CONF.2/SR.7, July 5, 1951, at 20. This reasoning was endorsed by the representative of the United Kingdom, who observed that “[t]he use of the well-known and clearly defined term ‘domicile’ was appropriate in article [12], as it constituted a criterion for determining the laws that should apply in respect of the personal status of a refugee. As, however, the restriction aimed at in article [14] was merely in respect of the period of residence in a receiving country, he considered it would be wrong to introduce the term ‘domicile’ into the text of that article”: Statement of Mr. Hoare of the United Kingdom, UN Doc. A/CONF.2/SR.8, July 5, 1951, at 6. Thus, Robinson concludes that “the exercise of the right was not made dependent on ‘permanent residence’ or ‘domicile’ because it was felt that it was too far-reaching [a] concept for the enjoyment of civil rights”: Robinson, History, at 107. See Chapter 3.2.4 at note 366. 561 Ibid. at note 368. 562 Ibid. at note 369. “The term ‘habitual residence’ was introduced to distinguish it from purely temporary residence”: Weis, Travaux, at 123. See also Robinson, History, at 107: “The change [to refer to ‘habitual residence’] was made to denote that a stay of short duration was not sufficient.” The drafters of Art. 14 of the Refugee Convention sought to ensure that intellectual property rights be protected as soon as the refugee had established some form of de facto ongoing presence in a state party. “[I]f ‘domicile’ seemed too narrow, and ‘residence’ too wide a concept, ‘habitual residence’ constituted a happy medium . . . While it was true that [the phrase] might lack legal precision, it should be remembered that refugees found themselves in a de facto position before they enjoyed a de jure position”: Statement of Mr. Rochefort of France, UN Doc. A/CONF.2/SR.8, July 5, 1951, at 7–8. See also Statement of Mr. Hoare of the United Kingdom, ibid. at 6: “[T]he restriction aimed at in Article [14] was merely in respect of the period of residence in a receiving country.” Even the Swedish representative, who had argued for the alternative language of “domicile,” acknowledged that “the Swedish delegation was mainly concerned with eliminating the idea of residence pure and simply,” in consequence of which it could accept the Austrian reference to “habitual residence”: Statement of Mr. Petren of Sweden, ibid. at 5. In line with these understandings, Grahl-Madsen concludes that “refugees do not have to have a permanent residence or domicile. With the exception of new refugees who have not yet habitual residence anywhere, it is difficult to envisage a refugee having no habitual residence”: Grahl-Madsen, Commentary, at 60. Robinson notes simply that “‘[h]abitual residence’ means residence of a certain duration, but it implies much less than permanent residence”: Robinson, History, at 107. This leads him logically to conclude that “it is difficult to envisage a refugee having no habitual residence except new refugees who did not yet succeed in establishing ‘habitual residence’ anywhere”: ibid.

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find real cases in which [industrial property] rights holder will fall back on Art. 14 of the [Refugee] Convention.”565 It follows that as regards either of the two classic forms of intellectual property rights – literary and artistic rights (governed by the Berne Convention) and industrial property rights (governed by the Paris Convention) – Art. 14 of the Refugee Convention is most important as a clear recognition that habitually present refugees must benefit in the asylum state from the same protections as nationals of anything broadly understood to be intellectual property rights. But on the more complex question of the capacity to enforce those rights abroad, the provisions of Art. 14 today add no real value to the general systems of enforcement set by the Berne and Paris Conventions. Importantly, however, the general language of Art. 14 ensures that it applies not just to the regimes that existed in 1951, but also to subsequently established systems for the protection of intellectual property. Perhaps the most important of these is the specialized treaty regime for the protection of the performers and producers of “phonograms” (audio recordings). Under the 1961 Rome Convention,566 the ability of producers and performers to enforce abroad their intellectual property interests in phonograms – that is, in the performance itself, rather than in the musical score on which the performance was based – is reserved for persons who are “nationals” of a contracting state party. The same is true of the more specialized treaties which build upon the Rome Convention, including the 1971 accord prohibiting the unauthorized duplication of phonograms567 and the 1996 World International Property Organization treaty on the same subject.568 Yet in any state party to the 565

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Metzger, “Article 14,” at 901. It is, however, less clear that as a general matter “[t]oday, protection of refugees is often more easily available under the intellectual property treaties than under Art. 14 [emphasis added]”: ibid. at 897. While Art. 14 rights are much the same as those under the Berne and Paris Conventions, they are more favorable than those set by the Rome Convention and the general rule under the WIPO regime: see text at notes 566 and 570. International Convention for the Protection of Performers [and] Producers of Phonograms and Broadcasting Organisations, entered into force May 18, 1964 (Rome Convention), 496 UNTS 43 (UNTS 7247), at Art. 2(1). There are ninety-four state parties to this treaty: www.wipo.int/treaties/en, accessed Mar. 1, 2020. “Each Contracting State shall protect producers of phonograms who are nationals of other Contracting States against the making of duplicates without the consent of the producer and against the importation of such duplicates, provided that any such making or importation is for the purpose of distribution to the public, and against the distribution of such duplicates to the public”: Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of their Phonograms, done Oct. 29, 1971, at Art. 2. “Contracting Parties shall accord the protection provided under this Treaty to the performers and producers of phonograms who are nationals of other Contracting Parties”: WIPO Performances and Phonograms Treaty, done Dec. 20, 1996, at Art. 3(1).

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Refugee Convention, Art. 14 requires that refugees be treated as citizens of the state where they are habitually present – meaning that they are entitled to enforce their phonogram rights in a country that is also a party to the Rome Convention on the same terms as a national of their host country. As such, even though Art. 14 is now only of minimal relevance in the spheres of concern to the drafters, its open-ended framing has given it a new contemporary application.569 More generally, Art. 14 is also an important bulwark against retrogression that might seek to disfranchise refugees or non-citizens in general. Arguably the most important contemporary intellectual property treaty, the World Trade Organization’s Agreement on Trade-Related Aspects of Intellectual Property Rights, Including Trade in Counterfeit Goods (“TRIPS Agreement”),570 requires only that the “nationals” of state parties be guaranteed the right to enforce their intellectual property rights abroad,571 except to the extent that one of the core predecessor intellectual property treaties – such as the Berne, Paris, and Rome Conventions – contains rules that require the assimilation of non-citizen residents.572 As the example of the Rome Convention on phonograms makes tragically clear,573 there is a continuing risk that non-citizens (including refugees) will not be included in the scope of 569

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“The list of examples [in Art. 14] . . . is not exhaustive. The scope of interests protected by Art. 14 . . . must be interpreted extensively as comprising all forms of protection granted by the State of habitual residence for ‘creations of the human mind’ . . . Therefore the scope of protection afforded by the 1951 Convention should not fall behind the scope of protection established by the existing conventions and should expand national treatment to refugees . . . The 1951 Convention may be of particular importance for intellectual property rights that are new and have not yet found acceptance by the international intellectual property treaties”: Metzger, “Article 14,” at 903–904. 33 ILM 81, Dec. 15, 1993 (TRIPS Agreement). “TRIPS expands the scope of GATT’s mostfavored nation and national-treatment principles to intellectual property rights as they affect the trade in products protected by such rights. Most-favored nation treatment requires that any protection and rights granted to nationals of any Member must be accorded to nationals of all Members [emphasis added]”: N. Telecki, “The Role of Special 301 in the Development of International Protection of Intellectual Property Rights After the Uruguay Round,” (1996) 14 Boston University International Law Journal 187, at 193. All member states of the World Trade Organization (WTO) are bound by the TRIPS Agreement. “Each Member shall accord to the nationals of other Members treatment no less favourable than that it accords to its own nationals with regard to the protection of intellectual property”: TRIPS Agreement, at Art. 3. Ibid. at Art. 1(3). As such, “assimilation of non-citizen residents under TRIPS is only provided if the respective older convention contains a rule on assimilation and if the requirements of assimilation under the older convention are met”: Metzger, “Article 14,” at 902–903. Despite the presumption that only citizens are protected, “Article 3 of the TRIPS Agreement allows for reverse discrimination, which means that foreign rights holders may receive more favourable treatment than nationals”: A. Sanders, The Principle of National Treatment in International Economic Law (2014), at 290. See text at note 566.

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protection in emerging intellectual property agreements and that the WIPO presumption in favor of nationality only will thus apply – a risk that can be countered by reliance on Art. 14 of the Refugee Convention. Beyond refugee law, Art. 15(1)(c) of the Economic Covenant also speaks to the question of intellectual property rights in the human rights context. Codified as part of a single right574 on participation in cultural life, enjoyment of the benefits of scientific progress, and “[t]o benefit from the protection of the moral and material interests resulting from any scientific, literary, or artistic production of which he is an author,” Art. 15 is only partly addressed to the same commercial interests that are the focus of the general intellectual property system575 (and to which the Refugee Convention’s Art. 14 is attuned).576 The core area of overlap is in regard to what may be referred to as “creators’ rights,”577 and specifically the protection of creators’ “material interests.”578 Importantly, while the Committee on Economic, Social and Cultural Rights has recognized that Art. 15(1)(c) “requires the protection of the moral and material interests of the authors in their works,”579 “these intellectual property rights must be balanced with the right to take part in cultural life and to enjoy the benefits of scientific progress and its applications.”580 To this end, the Committee has taken the view that the Covenant mandates an understanding of intellectual property rights grounded in the premise that “intellectual property is a social product and should have a social function. The end which intellectual property should serve is the objective of human well-being.”581 574

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“The specific textual context . . . does make it clear that creator’s rights are linked with – if not intrinsically tied to – the right to culture and the right to benefit from scientific progress”: H. Ruse-Khan, The Protection of Intellectual Property in International Law (2016) (Ruse-Khan, Protection of Intellectual Property), at 215. “It is . . . important not to equate intellectual property rights with the human right recognized in article 15, paragraph 1(c)”: UN Committee on Economic, Social and Cultural Rights, “General Comment No. 17: The Right of Everyone to Benefit from the Protection of the Moral and Material Interests Resulting from any Scientific, Literary or Artistic Production of which He or She is the Author,” UN Doc. E/C.12/GC/17, Jan. 12, 2006, at [3]. As one commentator frames it, “Article 15, para. 1(c) . . . recognizes [such rights] more cautiously”: Metzger, “Article 14,” at 899. L. Helfer and G. Austin, Intellectual Property and Human Rights – Mapping Global Interfaces (2011), at 173. Three distinct ways to understand the relationship between human rights and classic intellectual property norms – human rights as a limit; intellectual property as a means to implement human rights; and human rights as an alternative means to protect creators – are discussed in Ruse-Khan, Protection of Intellectual Property, at 211–212. UN Committee on Economic, Social and Cultural Rights, “General Comment No. 17: The Right of Everyone to Benefit from the Protection of the Moral and Material Interests Resulting from any Scientific, Literary or Artistic Production of which He or She is the Author,” UN Doc. E/C.12/GC/17, Jan. 12, 2006, at [4]. Ibid. at [4]. Ibid. at [4]. “It follows that other human rights a priori determine the scope and content of creator’s rights. Regardless of how an adequate balance is implemented in practice, this is

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Specifically, a human-rights-based understanding of intellectual property “promote[s] creators’ ability to earn a livelihood and to protect their scientific and creative freedom, the integrity of their work, and their right to attribution,”582 but not in the relatively single-minded fashion of traditional rules on the protection of intellectual property.583 Most fundamentally, human rights protection of intellectual property inheres only in “natural persons . . . [including] groups of individuals” but not “legal entities” such as corporations.584 Nearly as important, the scope of protected “material” (economic) interests “need not necessarily reflect the level and means of protection found in present copyright, patent and other intellectual property regimes.”585 While creators are entitled to “just remuneration of their labour”586 and “to be recognized as the creators”587 of their works, there is no duty under the Economic Covenant588 to guarantee that relevant economic benefits “extend over the entire lifetime of an author”:589 Rather, the purpose of enabling authors to enjoy an adequate standard of living can also be achieved through one-time payments or by vesting an author, for a limited period of time, with the exclusive right to exploit his scientific, literary, or artistic production.590

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an essential feature that distinguishes creator’s rights under the [Economic Covenant] . . . from [intellectual property] rights regulated in the international IP system”: Ruse-Khan, Protection of Intellectual Property, at 220. UN Human Rights Council, “Report of the Special Rapporteur in the Field of Cultural Rights,” UN Doc. A/HRC/28/57, Dec. 24, 2014, at [100]. “It is clear that while links between the promotion and protection of human rights, on the one hand, and the [IP] rights covered by the TRIPS Agreement, on the other, exist, there remain fundamental differences of approach. First of all, the overall thrust of the TRIPS Agreement is the promotion of innovation through the provision of commercial incentives”: UN Commission on Human Rights, “The Impact of the Agreement on TradeRelated Aspects of Intellectual Property Rights on Human Rights: Report of the High Commissioner,” UN Doc. E/CN.4/Sub.2/2001/13, June 27, 2001, at [22]. A UN special rapporteur has thus suggested “reconsidering the current maximalist intellectual property approach [in favor of] explor[ing] the virtues of a minimalist approach to IP protection”: UN Human Rights Council, “Report of the Special Rapporteur in the Field of Cultural Rights: The Right to Enjoy the Benefit of Scientific Progress and its Applications,” UN Doc. A/HRC/20/26, May 14, 2012, at [65]. UN Committee on Economic, Social and Cultural Rights, “General Comment No. 17: The Right of Everyone to Benefit from the Protection of the Moral and Material Interests Resulting from any Scientific, Literary or Artistic Production of which He or She is the Author,” UN Doc. E/C.12/GC/17, Jan. 12, 2006, at [7]. Ibid. at [10]. 586 Ibid. at [12]. 587 Ibid. at [13]. But Art. 15(1)(c) “by no means prevents States parties from adopting higher protection standards in international treaties on the protection of the moral and material interests of authors or in their domestic laws, provided that these standards do not unjustifiably limit the enjoyment by others of their rights under the Covenant”: ibid. at [11]. Ibid. at [16]. 590 Ibid. at [16].

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The attenuation of economic entitlements – most relevantly as regards industrial property rights – in this way591 represents, of course, a challenge to the core of the traditional intellectual property regimes which were not conceived in the human rights context. To its credit, however, the World Intellectual Property Organization (WIPO) not only contributed to the drafting of the Economic Committee’s seminal general comment on point,592 but has included some (admittedly vague) references to the importance of human rights in aspects of its specialized work.593 For refugees, the most immediate import of the human-rights-based understanding embodied in Art. 15(1)(c) is that it extends to “everyone” whatever rights are fairly understood to be protected under the Covenant’s notion of creators’ rights594 and makes these subject to the general duty of state parties to “prohibit any discrimination in the access to an effective protection of the moral and material interests of authors, including administrative, judicial and other remedies, on the grounds of . . . national or social origin . . . [or] other status, which has the intention or effect of nullifying the equal enjoyment or exercise of the right.”595 Indeed, one of the “core obligations” under Art. 15(1)(c), not subject to the usual duty only progressively to implement Covenant rights, is the duty “of immediate effect . . . [t]o ensure equal access for authors belonging to disadvantaged and marginalized groups”596 to such remedies. At the very least, then, the Art. 15(1)(c) duty thus extends whatever creators’ rights fall under its scope to refugees who might not be deemed to meet the Refugee Convention’s habitual residence requirement. It also unambiguously affirms that the means to enforce rights – as much as the rights themselves – are very much a part of the protected interest. In sum, the duty under Art. 14 of the Refugee Convention to enfranchise refugees within the asylum country’s domestic system for the protection of industrial property rights remains of value, at least because its requirements 591

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“[T[he clear distinctions between human rights and intellectual property rights might be relevant to describe what was previously termed ‘industrial property rights.’ Such distinctions, however, are less evident in the realm of copyrights, especially in the common law tradition, which integrates a strong moral justification for the protection of the works of the authors”: H. Haugen, “General Comment No. 17 on ‘Authors’ Rights,’” (2007) 10(1) Journal of World Intellectual Property 53 (Haugen, “General Comment No. 17”), at 58. Ibid. at 56. 593 Ibid. at 64. But as Ruse-Khan observes, “it seems doubtful that trademarks (as functional indicators of commercial origin – even if created by humans) are included”: Ruse-Khan, Protection of Intellectual Property, at 222. Similarly, Haugen opines that “[s]uch distinctions are easier in the field of patent rights than in the field of copyrights”: Haugen, “General Comment No. 17,” at 58. UN Committee on Economic, Social and Cultural Rights, “General Comment No. 17: The Right of Everyone to Benefit from the Protection of the Moral and Material Interests Resulting from any Scientific, Literary or Artistic Production of which He or She is the Author,” UN Doc. E/C.12/GC/17, Jan. 12, 2006, at [19]. Ibid. at [39].

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guarantee to refugees greater material protection (as codified in treaties on intellectual property law, and more broadly) than do the cognate provisions of general human rights law. Art. 14 expressly precludes any effort by an asylum state to deny habitually resident refugees – that is, refugees whose present center of interest is the asylum country, whether or not refugee status has been formally recognized – access to any system it offers its own citizens for enforcing their intellectual property rights. This avoids the need for refugees to claim protection by reliance on more fungible non-discrimination rules597 – still the framework within which even the progressive understanding of the Economic Covenant’s Art. 15(1)(c) is implemented. Art. 14’s contribution to the matter primarily of concern to the drafters – to allow refugees to enforce their literary and artistic rights outside their country of citizenship despite the prevalence of reciprocity requirements – varies with the context. In the realm of artistic and literary rights, the amended Berne Convention now replicates the Refugee Convention’s duty to assimilate habitually present refugees to nationals. Much the same is true of protection of industrial property rights under the Paris Convention since – despite its amendment to withdraw protection from all persons “within the jurisdiction” of a state party – its protections now extend to domiciled non-citizens (including refugees), a notion that under contemporary interpretation is at least as inclusive as Art. 14’s habitual residence requirement. On the other hand, Art. 14 does overcome the limitation in the Rome Convention on performance rights (phonograms) that excludes refugees and other non-citizens. As new forms of intellectual property are devised and regulated under the WIPO regime’s presumption mandating that only citizens receive reciprocal privileges, this bulwark function of Art. 14 may prove of enduring importance in ensuring that refugees are always able to claim rights under emerging regimes. Perhaps the most interesting question is what is likely to result from the interaction between the general intellectual property regimes – including the Berne, Paris, and Rome treaties, as well as the WIPO accords that defer to their definitions of the beneficiary class – and less exclusively economic interpretations of authors’ rights under the Economic Covenant.598 To the extent that the project of attenuating intellectual property rights in order to advance broader social objectives is successful, Art. 14 of the Refugee Convention – framed in a way that is very much anchored in, and draws on, the generalist tradition – may be of less concrete value in guaranteeing the immediate economic interests of refugee creators, in particular of industrial property. 597 598

See Chapter 1.5.5. “[T]he distinction between authors’ rights as recognized in article 15, paragraph 1(c) and established intellectual property rights is difficult to draw. No state has yet provided these mechanisms and institutions as part of their human rights regimes, and therefore they need to rely upon existing intellectual property institutions and legislation to ensure that authors can enjoy their human rights”: Haugen, “General Comment No. 17,” at 61.

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On the other hand, that same evolution may well advantage most refugees given its commitment to spread the benefits of scientific and other creations to all,599 and in particular to those who are presently disadvantaged.

5.5 Assistance to Access the Courts As earlier described,600 refugees are entitled to assert their rights before the courts of any state party,601 including prior to being admitted to a status determination procedure.602 The drafters agreed that even “persons who had only recently become refugees and therefore had no habitual residence were . . . covered by the provisions of . . . paragraph 1 [of Art. 16].”603 Both suits at law and criminal proceedings are moreover now subject to the qualitative requirements set by Art. 14(1) of the Civil and Political Covenant.604 In brief, courts and tribunals must be established by law, jurisdictionally competent, independent, and impartial. They must moreover be positioned to deliver a fair and public hearing, meaning that access is reasonably expeditious, the rules of natural justice are respected, there is procedural equality between the parties, it 599

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“State parties should . . . ensure that their legal and other regimes for the protection of the moral and material interests resulting from one’s scientific, literary or artistic production constitute no impediment to their ability to comply with their core obligations in relation to food, health and education, as well as to take part in cultural life and to enjoy the benefits of scientific progress and its applications, or any other right enshrined in the Covenant”: UN Committee on Economic, Social and Cultural Rights, “General Comment No. 17: The Right of Everyone to Benefit from the Protection of the Moral and Material Interests Resulting from any Scientific, Literary or Artistic Production of which He or She is the Author,” UN Doc. E/C.12/GC/17, Jan. 12, 2006, at [35]. See Chapter 4.10. “[A]rticle [16] stipulated that a refugee should not only have free access to the courts in the country where he resided, but to the courts of all contracting states”: Statement of the President, Mr. Larsen of Denmark, UN Doc. A/CONF.2/SR.8, July 5, 1951, at 13. As drafted, refugees are to have the right of access to courts, even if the citizens of the host state do not. Thus, Grahl-Madsen observes that “[t]he rule is interesting because it is of an absolute character and does not refer to any standard relating to nationals or most favoured aliens or any other group or category of aliens”: Grahl-Madsen, Commentary, at 66. “Paragraph 1 applies to any refugee . . . If he has his habitual residence in a nonContracting State, he shall nevertheless have access to courts of law in any of the Contracting States, subject only to the rule that each Contracting State must determine for its own purposes whether a person is to be considered as a refugee or not”: GrahlMadsen, Commentary, at 64. Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.25, Feb. 10, 1950, at 6. This position was thought largely uncontroversial, since “[u]nder present day practice foreigners are usually granted the right to appear before courts of law as plaintiffs or defendants . . . [But] [t]o avoid difficulties in such countries where free access to courts is not granted to all foreigners, the Convention explicitly imposes such an obligation on the Contracting States”: Robinson, History, at 112. See Chapter 4.10 at note 2748. See Chapter 4.10 at note 2818 ff.

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is possible reasonably to present one’s case, and the hearing (or at least the judgment, where special circumstances exist) is accessible to all. Yet the drafters were keenly aware that the basic guarantee of the right to bring a case to court could often prove illusive in practical terms: Although in principle the right of a refugee to sue and be sued is not challenged, in practice there are insurmountable difficulties to the exercise of this right by needy refugees: the obligation to furnish cautio judicatum solvi and the refusal to grant refugees the benefit of legal assistance makes the right illusory. In many countries, legal assistance is available solely to nationals and only foreigners who can invoke a treaty of reciprocity are granted the benefit of such assistance. Refugees should therefore be exempted, as was done in the Conventions of 1933 and 1938, from the obligation to furnish cautio judicatum solvi and should enjoy the benefit of legal assistance on the same conditions as nationals.605

In the context of civil claims, some states – including Belgium,606 the Netherlands,607 Croatia, Slovenia,608 and Turkey609 – still authorize defendants to claim security for costs against foreign national residents (including refugees) in at least some circumstances under the doctrine of cautio judicatum 605 606

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Secretary-General, “Memorandum,” at 30. “The Belgian Constitutional Court declared in 2018 that Article 851 of the Code judiciaire was unconstitutional as it focused on nationality rather than residence. In order not to create havoc with on-going proceedings . . . Cautio judicatum solvi is therefore likely to remain in Belgium, albeit based on the residence rather than nationality criterion (coupled with the absence of sufficient assets in the country)”: E. Guinchard, “Cautio Judicatum Solvi in Belgium: Towards a Reform,” Nov. 10, 2018. Under Article 224, Section 1 of the Dutch Code of Civil Procedure, “all claimants who are not residents of the Netherlands who bring a claim before a Dutch court will, at the request of the defendant(s), have to provide security for the trial costs and/or damages which they might have to pay in the event the court awards those costs to the defendant(s). This obligation to provide security does not exist . . . when: (a) This follows from a treaty or EU regulation, (b) A cost and/or damage award against the claimant can be enforced in the country where the claimant has his residence, either on the basis of the Statute of the Kingdom of the Netherlands (relevant when the defendant has his residence in the Netherlands Antilles), on the basis of a treaty or on the basis of an EU regulation, (c) It can be reasonably expected that recourse for a cost and/or damage award against the claimant payment will be possible within the Netherlands (for example, when the claimant has assets in the Netherlands), or (d) This rule would effectively render it impossible for the foreign claimant to get access to the Dutch court”: T. Claassens, “Litigation in the Netherlands: A Practitioner’s Guide” (2013), at 40 (internal citations omitted). Unlike persons designated “tourists” or as belonging to other classes of foreign nationals, refugees are exempt from the duty to provide security for costs in Croatia and Slovenia: Council on General Affairs and Policy of the Conference, “Report of the Experts’ Group on the Co-operation and Access to Justice for International Tourists (Tourism Project),” Hague Conference on Private International Law, March 2019, at xl, note 29. See A. Güzeloğlu and T. Kurban, “The Obligation of Depositing Guarantee for Foreigners and Turkish Citizens who has not any Habitual Residence in Turkey (Cautio Judicatum Solvi),” Sept. 15, 2017.

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solvi.610 The relatively small number of state parties to the 1980 Hague Convention on International Access to Justice, on the other hand, have agreed not to apply this doctrine against citizens and persons habitually resident in other contracting states: No security, bond or deposit of any kind may be required, by reason only of their foreign nationality or of their not being domiciled or resident in the State in which proceedings are commenced, from persons (including legal persons) habitually resident in a Contracting State who are plaintiffs or parties intervening in proceedings before the courts or tribunals of another Contracting State.611

Some states have gone even farther, with France,612 Algeria,613 and the Dominican Republic614 being examples of states that have opted formally to exempt all non-citizens, including refugees, from the requirement to post security for costs. But the predominant concern of refugees today is not general assistance to access the courts, but rather assistance to engage the courts in order to vindicate their right to be protected as refugees. In Uganda, for example, it has been reported that “asylum-seekers are not allowed legal representation in 610

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According to a survey of state practice, most states do not follow the WTO’s recommendation to exempt refugees and other specific classes of non-nationals from the legal definition of “tourists”; where no refugee-specific exemption otherwise exists, the permissibility of requiring security for costs persists: see Council on General Affairs and Policy of the Conference, “Report of the Experts’ Group on the Co-operation and Access to Justice for International Tourists (Tourism Project),” Hague Conference on Private International Law, March 2019, at xi, xxxvii–xl. Convention on International Access to Justice, UNTS 26112, done Oct. 25, 1980, at Art. 14. N. Guimezanes, International Academy of Comparative Law National Report for France (1994), at 18. It was reported by the delegation of Algeria that “non-nationals in a regular situation with insufficient resources were entitled to free legal aid, which was also offered as a matter of law to victims of trafficking and smuggling of migrants without any conditions regarding their resources or residency. The cautio judicatum solvi had been removed from the Code of Civil and Administrative Procedure enacted in 2008. Legislation also provided for recourse to interpretation services (including into sign language, if needed) when required during civil, administrative, contentious, non-contentious or criminal proceedings”: UN Committee on the Elimination of Racial Discrimination, “Consideration of reports, comments and information submitted by States parties under article 9 of the Convention (continued),” May 23, 2013, UN Doc. CERD/C/SR.2210, at [4]. “Any Haitian or other national is legally entitled to appeal to the Dominican justice system if his or her rights have been violated and to receive compensation. Several years ago, the Supreme Court ruled that foreign nationals seeking redress in the courts, no matter what their migration status might be, need not pay a cautio judicatum solvi”: UN Human Rights Committee, “Consideration of reports submitted by States parties under article 40 of the Covenant: Fifth Periodic Report, Dominican Republic,” UN Doc. CCPR/C/DOM/5, Jan. 22, 2010, at [41].

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presenting their case. It has been argued by UNHCR that legal representation would infringe upon the confidentiality of the asylum-seeker.”615 Nor are refugee claimants entitled to assistance in presenting their claims for protection status in Afghanistan,616 though they may have a broader right to legal aid in certain criminal and civil matters.617 Britain’s decision to reimburse legal aid providers on a flat fee rather than hourly basis resulted in a 64 percent decrease in non-profit providers assisting refugee claimants over a thirteen-year period.618 Funding cuts to legal aid programs in the Canadian province of Ontario mean that “legal assistance . . . is now limited to filling out the administrative forms for filing a refugee claim . . . But the most essential part of the refugee process, the hearing, is no longer covered and claimants are now having to walk into courtrooms unrepresented.”619 Under the European Union’s Procedures Directive, in contrast, state parties are required to provide free “legal assistance and/or representation” for purposes of at least the first review or appeal of a negative status determination.620 They may, however, limit access to such assistance on the basis of financial need; limit its applicability to designated counsel; set monetary and/or time limits; and deny such assistance altogether where authorities determine that the appeal or review has “no tangible prospect of success.”621 Refugee Convention, Art. 16 Access to Courts ... 2. A refugee shall enjoy in the Contracting State in which he has his habitual residence the same treatment as a national in matters pertaining to access to the courts, including legal assistance and exemption from cautio judicatum solvi.

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Refugee Law Project, “Refugees in the City: Status Determination, Resettlement, and the Changing Nature of Forced Migration in Uganda,” Working Paper No. 6, July 2002, at 15. UN Office on Drugs and Crime and UN Development Programme, “Global Study on Legal Aid: Country Profiles”(2016), at 11. Ibid. at 15. “As a result, ‘legal aid deserts’ have emerged in different parts of the country due to a 56% drop in the number of providers offering legal aid representation for immigration and asylum cases since 2005 . . . There was an even greater reduction in the number of not-forprofit providers, with only 36% remaining in 2018 compared with the number in 2005”: J. Grierson, “Lack of Legal Aid puts Asylum Seekers’ Lives at Risk, Charity Warns,” Guardian, July 19, 2018; see also Refugee Action, “Tipping the Scales: Access to Justice in the Asylum System” (2018), at 5. C. Lieberman and R. Stewart-Johnson, “Cuts to Legal Aid Ontario mean Asylum Seekers are on their own, Refugee Lawyer says,” Global News, June 4, 2019. EU Procedures Directive (2013), at Arts. 20–21. Ibid. at Arts. 21(2)–(4), 20(3). Member states are directed, however, to ensure that access to legal assistance “is not arbitrarily restricted and that the applicant’s effective access to justice is not hindered”: ibid. at Art. 20(3).

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3. A refugee shall be accorded in the matters referred to in paragraph 2 in countries other than that in which he has his habitual residence the treatment granted to a national of the country of his habitual residence. Over the course of the drafting debates, it was decided that while all refugees should have free access to the courts in all state parties, the more sophisticated right to national treatment on all “matters pertaining to accessing the courts”622 – in particular, eligibility for legal assistance, and exemption from cautio judicatum solvi – would be extended to refugees on the basis of private international law’s test of having established a “habitual residence.” This is a standard that requires more than simple physical presence yet which is less demanding than lawful stay.623 As under private international law, “residence” means the place that is in fact the center of one’s interests624 – the state with which the refugee “has the most real connexion.”625 But it is only “habitual” once that presence becomes ongoing.626 Some time will in most cases be required for a refugee to develop the sorts of personal and social linkages in the asylum state that are evidence of the required connection, including such factors as “family situation; the reasons which have led him to move; the length and continuity of his residence; the fact that he is in stable employment; and his intention as it appear[s] from all the circumstances.”627 Lawfulness of presence as demonstrated by admission to a status assessment procedure is generally 622

623

624 625

626 627

“Free access” to the courts, as required by Art. 16(1), does not imply a right of refugees to access courts without the payment of the usual court fees. In the French government’s proposal for the Convention, adopted as the working model for Art. 16, refugees were to have received “free and ready” access to the courts of law: France, “Draft Convention,” at 4. This led the British representative to observe that “the first paragraph of the French draft spoke of ‘free and ready access’; . . . in English the words ‘free’ and ‘ready’ were synonymous in the context if used alone, but in conjunction ‘free’ might mean without payment of court fees”: Statement of Sir Leslie Brass of the United Kingdom, UN Doc. E/AC.32/ SR.11, Jan. 25, 1950, at 7. On the motion of the Israeli delegate, the English-language text was amended to refer solely to “free” access in order to avoid this interpretation: Statement of Mr. Robinson of Israel, ibid. However, “Article 16 should . . . be read in conjunction with Article 29, according to which refugees shall not be obliged to pay higher or other charges than nationals of the State concerned”: Grahl-Madsen, Commentary, at 64. Thus, “‘free access’ to courts does not mean that a refugee is free from the payment of any fees which nationals have to pay in the same circumstances . . . [S]uch fees and charges may not be higher than those levied on nationals”: Weis, Travaux, at 134. The language of “habitual residence” was debated in the context of Art. 14, which establishes artistic rights and rights to industrial property: see Chapter 5.4 at note 555 ff. As Robinson affirms, “[t]he scope of the rights accorded to refugees under para. 2 is the same as in Art. 14”: Robinson, History, at 113. See also Weis, Travaux, at 134. See Chapter 3.1.3 at note 186. Law Reform Commission of Ireland, “Domicile and Habitual Residence as Connecting Factors in the Conflict of Laws” (1981), at [21]. See Chapter 3.1.3 at note 186. Robin Swaddling v. Adjudication Officer, Dec. No. C-90/97 (CJEU, Feb. 25, 1999), at [29].

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agreed to be an indicator of the required connection, though it is neither mandatory nor sufficient.628 Fundamentally, habitual residence – like the Refugee Convention’s notion of lawful presence – defines a middle ground between simply having arrived in an asylum country and having been formally authorized to stay there on an ongoing basis. Despite the flexibility of the habitual residence standard, there will clearly be some refugees who – especially shortly after arrival to seek asylum – will not yet be habitually present in the asylum country.629 These refugees are only entitled to claim the benefit of Art. 16(1) in addition to whatever access to the courts is afforded non-citizens generally.630 They may, for example, bring an action to secure a divorce631 or recover a debt,632 but need not be granted the forms of practical assistance in accessing the courts envisaged by paras. 2 and 3 of Art. 16.633 Once a refugee is habitually present, however – which will in many cases be long before a decision is reached on refugee status verification634 – he or she is entitled also to receive “the same treatment as nationals in matters pertaining to access to the Courts [emphasis added]”635 Art. 16(2)–(3) is a critical complement to Art. 14 of the Civil and Political Covenant, which, despite setting out 628

629

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631 632 633

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See Chapter 3.1.3 at note 192. “This right . . . is granted independently of recognition of refugee status”: B. Elberling, “Article 16,” in A. Zimmermann ed., The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary 931 (2011) (Elberling, “Article 16”), at 940. “With the exception of new refugees who have not yet habitual residence anywhere, it is difficult to envisage a refugee having no habitual residence”: Grahl-Madsen, Commentary, at 60. See generally Chapter 4.10. At this point, the operative provisions of the Refugee Convention are Arts. 16(1) and 7(1), the latter stipulating that “[e]xcept where this Convention contains more favourable provisions, a Contracting State shall accord to refugees the same treatment as is accorded to aliens generally.” See Chapter 3.2.1. Statement of Mr. Larsen of Denmark, UN Doc. E/AC.32/SR.11, Jan. 25, 1950, at 7. Statement of Mr. Robinson of Israel, UN Doc. A/CONF.2/SR.8, July 5, 1951, at 12. “[R]efugees who have not established habitual residence in any country will not benefit from the provisions of paragraphs 2 and 3”: Grahl-Madsen, Commentary, at 67. The drafters rejected the early draft which granted rights under Art. 16(2) and (3) on the basis of “domicile or regular residence” in favor of the present language of “habitual residence” based upon the view of the British representative that “the aim was to give refugees the right to sue and be sued in the country of their residence whether it was the country of their domicile or not”: Statement of Sir Leslie Brass of the United Kingdom, UN Doc. E/AC.32/SR.11, Jan. 25, 1950, at 7. The revised draft adopted at the first session of the Ad Hoc Committee refers only to “habitual residence”: Ad Hoc Committee, “First Session Report,” at Annex I. Robinson observes that the “habitual residence” language was chosen “to denote that a stay of short duration was not sufficient. On the other hand, the exercise of the right was not made dependent on ‘permanent residence’ or on ‘domicile’ because it was felt that it was a too far-reaching concept for the enjoyment of civil rights. ‘Habitual residence’ means residence of a certain duration, but it implies much less than permanent residence”: Robinson, History, at 107. Refugee Convention, at Art. 16(2).

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principles of fairness applicable to all persons (including refugees and other non-citizens)636 who are before courts on criminal charges or in the context of suits at law,637 does not explicitly address the practicalities of securing access to courts.638 The Refugee Convention’s rule moreover has both an internal and an external dimension.639 Within the country of habitual residence, refugees are to enjoy the same practical means of accessing the courts as do citizens of that country.640 In other countries, refugees are to be treated as citizens of their host country.641 Thus, whatever dispensations are afforded citizens of the asylum state, including by virtue of treaties of reciprocity, must be extended to refugees in that country as well.642 This duty inheres even if the refugee seeking access to the courts is habitually resident in a state which is not a party to the Refugee Convention.643 The enhanced obligations under paras. 2 and 3 are general in scope,644 meaning, for example, that they require the provision to refugees of an interpreter to the extent necessary to ensure real access to judicial proceedings.645 The 636 637

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See Chapter 4.10 at note 2819 ff. The meaning attributed by the Human Rights Committee to a “suit at law” and in particular its application to refugee status assessment are discussed in Chapter 4.10 at note 2818 ff. But “[a]lthough the right to free legal aid in civil cases is not expressly guaranteed, its denial may, in certain circumstances, infringe the principle of ‘equality of arms’ and [therefore] constitute a violation of the right to a fair hearing”: Jayawickrama, Judicial Application, at 526. The external dimension, found in para. 3, is a net addition over the cognate protections established by the 1933 and 1938 refugee conventions: Robinson, History, at 112. Refugees are to be “subject to the same conditions as nationals”: Statement of Sir Leslie Brass of the United Kingdom, UN Doc. E/AC.32/SR.11, Jan. 25, 1950, at 7. Thus, “they will be considered more favourably than aliens who are not enjoying such favourable treatment”: Grahl-Madsen, Commentary, at 67. “Refugees are to have free access to justice, not only in their country of residence but in any other country party to the convention”: Secretary-General, “Memorandum,” at 30. “They would be entitled in this respect to benefit under the system applied to nationals of the country of asylum in pursuance of the treaties in force”: ibid. “Just as in paragraph 1, this paragraph also applies to refugees residing in non-Contracting States”: Grahl-Madsen, Commentary, at 64. The Belgian representative, for example, observed that “the exemption from cautio judicatum solvi was already provided for under the first sentence of paragraph 2, which provided that a refugee should enjoy in that respect the same rights and privileges as a national”: Statement of Mr. Herment of Belgium, UN Doc. A/CONF.2/SR.8, July 5, 1951, at 13. See also Elberling, “Article 16,” at 942, noting that “Article 16, para. 2 is not . . . limited to these two aspects, but refers to all ‘matters pertaining to access to the Courts.’” By way of analogy, in the criminal law context the Human Rights Committee has determined that an interpreter must only be made available if the accused or defense witnesses have difficulty in understanding or in expressing themselves: Guesdon v. France, HRC Comm. No. 219/1986, UN Doc. A/45/40, Vol. 2, decided July 25, 1990), at [10.2]– [10.4], [11].

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two practical impediments of greatest concern to the drafters – the need for exemption from cautio judicatum solvi, and access to legal assistance – are expressly referenced in the text of Art. 16. First, under the rules of cautio judicatum solvi some “countries admit foreigners to their courts of law, but request them, in the absence of reciprocity, to deposit an amount at the court’s discretion [which] is sufficient to cover the costs he will be compelled to pay the other party if he loses the case.”646 Thus, if treated on par with other non-citizens, refugees could be required to post security for costs in a civil action under a procedure not applicable to citizens of the host state. By virtue of Art. 16(2) and (3), however, no such rule may be invoked against habitually present refugees647 – meaning that continued application of the cautio judicatum solvi regime648 until refugee status is formally recognized, as occurs in Belgium, Croatia, the Netherlands, Slovenia, and Turkey,649 is at odds with the requirement of Art. 16(2). Happily, though, this concern is of ever-decreasing relevance. Even in 1951, the Belgian representative to the Conference of Plenipotentiaries observed that “the practice of demanding cautio judicatum solvi was dying out,”650 a view affirmed by more recent developments,651 including the decisions of Algeria, the Dominican Republic, and France652 to end this requirement for all non-citizens. Second, and of greater contemporary importance, Art. 16(2) requires that refugees be assimilated to nationals of their country of residence with respect to “legal assistance.”653 This right to equal treatment is, of course, of no practical utility to refugees where not even nationals benefit from a legal aid program.654 But where legal aid is generally available, Art. 16(2) overcomes the challenge of having to rely on the very general language of Art. 14 of the Civil 646 647

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Grahl-Madsen, Commentary, at 63. The result under Art. 14(1) of the Civil and Political Covenant would be less clear, it being suggested only that “[t]he deposit of security in an unreasonable amount” would be incompatible with the right of access to a court: Jayawickrama, Judicial Application, at 500. The duty to post security for costs is not, therefore, impermissible per se. Whether an otherwise valid requirement applied only to non-citizens is allowable would be determined by reference to the duty of non-discrimination. See Chapter 1.5.5 at note 484 ff. for a discussion of the tendency of the Human Rights Committee to defer to state assertions of reasonable differentiation. See text at note 646. 649 See text at notes 606–609. Statement of Mr. Herment of Belgium, UN Doc. A/CONF.2/SR.8, July 5, 1951, at 13. The ALI/UNIDROIT Principles of Transnational Civil Procedure (Sept. 27, 2016) provide at Principle 3.3 that “[a] person should not be required to provide security for costs, or security for liability for pursuing provisional measures, solely because that person is not a national or resident of the forum state.” See text at notes 612–614. “With regard to legal aid or legal assistance, it is clear that the Article can only apply to such benefits which are granted by the State under a State-supported scheme. In countries where legal aid is solely granted by bar associations, the Article will certainly not apply”: Grahl-Madsen, Commentary, at 67. See also Elberling, “Article 16,” at 941(“[A] State which does not grant legal assistance to its nationals is not obliged to instal such a system for the benefit of refugees either”).

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and Political Covenant,655 understood to mean that “[a] state has a free choice of the means to be used towards guaranteeing to litigants an effective right of access to the courts. While the institution of a legal aid scheme constitutes one of those means, other means that might be used include a simplification of procedures.”656 Because the Refugee Convention requires the same treatment as nationals as regards legal assistance before the courts, the decision of the United Kingdom to reduce legal aid funding for refugee cases by setting a flat fee (in contrast to the hourly billing system that is generally applicable)657 is an example of a practice that is at odds with Art. 16(2). As this example suggests, the most pressing practical question is whether Art. 16(2) requires the provision to habitually present refugees of forms of assistance to access the courts that are refugee-specific – most critically, of legal assistance in the context of refugee status assessment. As initial assessments are generally conducted by officials or administrative tribunals rather than by “courts,”658 Art. 16 does not apply at this stage659 – meaning that neither the Canadian province of Ontario’s refusal to fund appearances before the refugee tribunal660 nor even the bar on legal representation before officials charged with initial status assessment in Afghanistan and Uganda661 amounts to a breach of Art. 16(2).662 But in the context of judicial review or another form of appeal or reassessment conducted by a court of either general or subject-matter-specific jurisdiction,663 Art. 16(2) is presumptively applicable – meaning that “legal assistance” must in principle be provided at this level. 655

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See Chapter 4.10 at note 2818. “[I]n contrast to the provision in the [Civil and Political Covenant], article 16 of the 1951 Convention does not specifically restrict the right to legal aid to criminal cases. Where States offer more generous terms to their nationals, such as the provision of legal aid and interpreter services in civil cases too, refugees can invoke the provisions of the 1951 Convention granting them the national standard of treatment”: da Costa, “Rights of Refugees in the Context of Integration,” at 138. Jayawickrama, Judicial Application, at 503–504, citing in support the decision of the European Court of Human Rights in Andronicou and Constantinou v. Cyprus, (1997) 25 EHRR 491 (ECtHR, Oct. 9, 1997). See text at note 618. “[T]he extent to which [Art. 16] protects asylum seekers in the context of status determination procedures may well depend on the peculiarities of the legal system of the State of refuge – or, a cynic might add, on the skill of that State in drafting and defending its restrictive regime”: Elberling, “Article 16,” at 945. “The paragraph is limited to courts of law and does, therefore, not apply to access to administrative authorities”: Grahl-Madsen, Commentary, at 66; see also da Costa, “Rights of Refugees in the Context of Integration,” at 135. See text at note 619. 661 See text at notes 615–617. But see Elberling, “Article 16,” at 940, arguing more generally that “systems which only grant refugees access to legal aid for matters other than status determination are in violation of Art. 16, para. 2.” As Elberling rightly observes, Art. 16 “only requires that the State allow refugees to bring their claims to the courts . . . not that it should provide the courts with subject-matter jurisdiction or enact substantive law provisions which would allow these claims to be

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It might nonetheless be objected that under Art. 16 refugees need only receive “the same treatment as nationals” in relation to legal assistance. On a narrow reading, nationals would never seek legal assistance in relation to a review or appeal of a negative assessment of refugee status (since nationals cannot be refugees in their own country).664 Approached in this way, refugees would not need to be granted legal aid either. But the better tack is to identify the underlying factual predicate for the provision of legal aid in a given jurisdiction – for example, whether it is limited only to certain types of cases (e.g. criminal or family law), or whether it is instead provided to citizens more broadly in situations where there is a significant risk of loss of liberty – and then to apply that premise in a non-discriminatory way to the situation of someone seeking the review or appeal of a negative refugee status assessment before the courts.665 If nationals would receive legal aid when faced with a risk of comparable gravity, then so too should habitually present refugees.666 In view of the serious implications of a refusal to recognize refugee status, the general thrust of the European Union rule mandating free legal aid on a review or appeal667 thus aligns with the requirements of Art. 16(2).

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successful. It follows that any restrictive measure which can be construed as only restricting the latter aspect of judicial remedies is not in violation of Art. 16”: ibid. at 944. The importance of subject-matter jurisdiction for the invocation of Art. 16 is discussed in Chapter 4.10 at note 2813. By definition, a Convention refugee must be “outside the country of his nationality”: Refugee Convention, at Art. 1(A)(2). Another way of reaching much the same conclusion would be to recognize that “[t]he structure of Art. 16, para. 2, which provides for equal treatment of two groups of persons, along with the humanitarian aim of the 1951 Convention, invites its interpretation as a prohibition of discrimination, which would also cover the kind of ‘indirect’ discrimination that arises from treating proceedings differently from proceedings used by people in general”: Elberling, “Article 16,” at 945. Importantly, until and unless there has been a fair and final determination that an individual does not in fact qualify as a refugee, the declaratory nature of refugee status requires that she or he be treated as a refugee, in particular by the provisional respect for relevant refugee rights. See Chapter 3.1 at note 34 ff. There is, in contrast, a risk of error if reliance is placed simply on categorical distinctions, e.g. between criminal and civil cases. For example, the New Zealand High Court determined that Art. 16 was complied with when the refusal of legal aid in the context of refugee status assessment was based on the general rules applicable to civil cases: Aivazov v. Refugee Status Appeals Authority, [2005] NZAR 740 (NZ HC, Aug. 26, 2005), at [22], [24], [27]. See text at note 620.

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6 Rights of Refugees Lawfully Staying

A significant number of important rights accrue to refugees only once they are “lawfully staying” in a state party. These include the rights to engage in wageearning employment and to practice a profession, freedom of association, access to housing and welfare, to benefit from labor and social security legislation, and to receive travel documentation. As previously described,1 a refugee is lawfully staying (résidant régulièrement) when his or her presence in a given state is ongoing in practical terms. This may be because he or she has been granted asylum consequent to formal recognition of refugee status. But refugees admitted to a so-called “temporary protection” system or other durable protection regime are also lawfully staying. So long as the refugee enjoys officially sanctioned, ongoing presence in a state party, he or she is lawfully staying in the host country; there is no requirement of a formal declaration of refugee status, grant of the right of permanent residence, or establishment of domicile. On the other hand, rights which require lawful stay do not accrue to refugees awaiting the results of a formal process of status verification, as the purely provisional nature of such persons’ presence in the host state is at odds with the Convention’s reservation of these more integrationoriented rights for those who are expected to remain in the state party for a significant period of time.

6.1 Right to Work In much of the less developed world, access by refugees to the national labor market is either denied altogether or extremely limited. Host states are often concerned that allowing refugees to work will drive down wages for their own citizens, thereby creating tensions between refugees and their hosts. As UNHCR has observed, The arrival of large numbers of asylum-seekers and the absorption of some or even all of them as refugees, even on a temporary basis, can create serious strains for host countries. This is particularly the case for poorer communities where the ability of the people and the inclination of the government to shoulder the resultant burden may be severely diminished 1

See Chapter 3.1.4 at note 202 ff.

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by economic difficulties, high unemployment, declining living standard, and shortages in housing and land . . . Inevitably there are tensions between international obligations and national responsibilities in such circumstances, with the result, in a number of States, that priority is accorded to nationals over all aliens, including refugees, in fields such as employment.2

Thus, for example, refugees in Cambodia are granted no work authorizations, “reducing them to little more than illegal immigrants.”3 Rohingya refugees in Thailand are similarly considered “illegal immigrants,” and granted no right to work whatsoever.4 In other cases, the employment of refugees may not be formally barred, but there are de facto barriers that seriously restrict access to the labor market. Sudan’s confinement of refugees to enclosed camps has made it difficult for them to access urban labor markets, such as those in Kassala and Khartoum.5 Sri Lankan refugees in India were subject to evening curfews and only permitted to leave the camps to work during certain hours of the day; those who needed to be away for extended periods could only do so if their request was supported by a letter from their employer.6 Under Zambian law, access by refugees to the job market is both expensive and logistically complex: The law requires refugees to apply for and obtain a job offer from an employer before they can receive a work permit, which costs about US$230. To obtain a permit, refugees must submit an application to the Labor Department of the Office of Immigration with a letter from the [Office of the Commissioner for Refugees]. The Chief Immigration Officer (CIO) is able to issue permits provided that the persons are already in the country and have a sufficient level of education, qualifications, skills, and financial resources, and that no Zambian is qualified for the job. The permits may specify conditions regarding the area in which the bearers can work and the kind of work they can do “as the CIO think[s] fit.” The length of the work permit, which can be renewed to a maximum duration of five years (from its issuance), is also at the discretion of the CIO.7

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3 4

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6

UNHCR, “Implementation of the 1951 Convention and the 1967 Protocol relating to the Status of Refugees,” UN Doc. EC/SCP/54, July 7, 1989, at [11]. “Cambodia: Precarious Position of Refugees,” (2002) 114 JRS Dispatches (June 28, 2002). Thailand deems Rohingya to be illegal migrants, without considering the circumstances at their point of origin. Persons arriving from Cambodia, Laos, and Burma are allowed to work after national verification and registration, but Rohingya are not eligible even if they are not in detention: S. Ganjanakhundee, “Thailand’s Refusal to Recognise Rohingya as Refugees Leaves them in Illegal Limbo,” The Nation, Mar. 5, 2018. R. Zetter and H. Ruaudel, “Refugees’ Right to Work and Access to Labor Markets – An Assessment: Part II, Country Cases,” Knomad, Sept. 2016 (Zetter and Ruaudel, “Right to Work: Part II”), at 164. Ibid. at 54. 7 Ibid. at 225–226.

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Similarly demanding requirements must be met by refugees seeking employment in Egypt.8 Due to formal or informal barriers, refugees are often forced to work illegally in order to survive. Rohingya refugees in Bangladesh have been driven to obtain (fraudulent) Bangladeshi identification cards, birth or school certificates, and other documents to avoid discrimination and attain access to employment that is otherwise prohibited.9 Colombian refugees in Ecuador have been relegated to work in jobs outside the country’s social security system.10 Refugees in Chad barred from taking employment nonetheless often leave their camps in order to seek work in established settlements, local villages, and urban areas. Because this work is illegal, refugees are at the mercy of their employers;11 Sudanese women refugees working in Chadian villages have, for example, faced abuse and exploitation at the hands of employers or even resorted to “survival sex” as a way to make ends meet.12 In other cases, the existence of heavy penalties for employing irregular workers, including refugees, has deterred employers from hiring refugees. In Iran, for example, “the Ministry of Labour and Social Affairs subjected employers to heavy fines and imprisonment and shut down many small businesses that employed undocumented Afghan refugees.”13 There are, however, important exceptions to the exclusion of refugees from authorized employment, even in poorer countries facing their own employment market challenges. Zimbabwean law provides that refugees “shall, in respect of wage-earning employment, be entitled to the same rights and subject to the same restrictions, if any, as are conferred or imposed generally on persons who are not citizens of Zimbabwe.”14 Judicial intervention in South Africa has resulted in even persons awaiting refugee status verification being allowed to work,15 though employment in one of the most viable fields – the private security industry – is ordinarily restricted to refugees who secure 8

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11 13 14

15

“Article 53 of the Egyptian Constitution provides that foreigners who have been granted political asylum may be eligible for work permits. In practice, however, obtaining a work permit is difficult for most recognized refugees. Work permits are costly, the foreigner must find an employer to sponsor her and pay all fees. The refugee must also fulfill the requirement that no Egyptian be available to fill the same job”: Asylum Access and Refugee Work Rights Coalition, “Global Refugee Work Rights Report” (2014), at 26. R. Zetter and H. Ruaudel, “Refugees’ Right to Work and Access to Labor Markets – An Assessment: Part I, Synthesis,” Knomad, Sept. 2016 (Zetter and Ruaudel, “Right to Work: Part I”), at 25. See ibid. at 16; J. Acero et al., “Plan de acción de Brasil: Evaluación del grupo articulador regional del plan de acción de Brasil, 2014–2017” (Feb. 2018), at 46. Zetter and Ruaudel, “Right to Work: Part II,” at 15. 12 Ibid. at 15. Zetter and Ruaudel, “Right to Work: Part I,” at 16. Zimbabwe Refugees Act (Law No. 13, 1983), at s. 12(3), cited in Lawyers’ Committee for Human Rights, African Exodus (1995) (LCHR, African Exodus), at 104. Watchenuka Case, Dec. No. 1486/02 (SA HC, Nov. 18, 2002); affirmed in Minister of Home Affairs v. Watchenuka, (2004) 1 All SA 21 (SA SCA, Nov. 28, 2003).

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permanent resident status.16 Lebanon allows refugees to seek employment, but in line with a policy to “protect the Lebanese in their places of work and employment as a whole” now restricts them to the construction, administration, and small crafts sectors.17 Some developed states also place restrictions on the right to work, albeit in varied forms. In Japan, refugees whose claims are pending are barred from work.18 Purportedly aimed at protecting Japanese jobs,19 this restriction applies without regard to duration of presence or whether a refugee has Japanese-born children.20 In 2013, Israel closed all but four of the immigration offices responsible for the renewal of “conditional release permits,” which serve as informal work permits for refugees. Given the need to renew such permits every few months, the sudden closures caused widespread chaos for the 50,000 people for whom the failure to renew would result not only in loss of their livelihoods, but also in subjection to arrest and detention.21 Syrian refugees in Turkey may only apply for work permits through prospective employers and after a six-month period; work authorization is moreover limited to the province in which they first registered for temporary protection. Furthermore, “the proportion of refugees and asylum-seekers cannot exceed 10% of a company’s workforce, and each individual’s work permit is tied to a single place of employment.”22 The European Union authorizes a somewhat longer delay, requiring only that member states authorize refugees to engage in employment “immediately after . . . protection has been granted,”23 though subject to the caveat that work rights must in any event be granted if the status assessment procedure is still underway nine months after the protection claim was lodged.24 16

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20 21

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See Zetter and Ruaudel, “Right to Work: Part II,” at 150; see also Section 23(1)(a) of the Private Security Industry Regulation Act of 2001. L. Al-Arian, “In Lebanon, Palestinians Protest New Employment Restrictions,” NPR, July 26, 2019. M. Funakoshi et al., “Born in Limbo: Japan Forces a Harsh Choice on Children of Migrant Families,” Reuters, Nov. 22, 2016 (Funakoshi, “Born in Limbo”). According to one lawmaker and special adviser to Japanese Prime Minister Shinzo Abe, the restrictions are in response to “an allergy towards the word ‘immigration’ . . . People are worried about public security. They worry that foreign workers would eat up Japanese jobs”: T. Wilson et al., “Banned from Working, Asylum Seekers are Building Japan’s Roads and Sewers,” Reuters, Aug. 8, 2016. Funakoshi, “Born in Limbo.” Human Rights Watch, “Make Their Lives Miserable: Israel’s Coercion of Eritrean and Sudanese Asylum Seekers to Leave Israel,” Sept. 2014, at 8, 55–59. Amnesty International, “No Safe Refuge: Asylum-Seekers and Refugees Denied Effective Protection in Turkey,” Mar. 2016, at 29–30. EU Qualification Directive (2011), at Art. 26(1). EU Reception Directive (2013), at Art. 15(1). In practice, there is a significant diversity of practice among EU states. “[I]n Sweden a refugee is allowed to work immediately upon applying for asylum, in Germany after three months, in the Netherlands after six months, and in France after nine months”: M. den Heijer et al., “Coercion, Prohibition, and Great Expectations: The Continuing Failure of the Common European Asylum System,” (2016)

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Refugees channeled into so-called “temporary protection” systems have often had access only to truncated work rights. Australia allows temporary protection visa (TPV) holders to work, but its renewal of TPV status in three-year increments has sometimes impeded beneficiaries’ ability to find dependable employment.25 New Zealand requires applicants for temporary protection visas – the designated visa category for refugees in a “mass arrival group” of thirty persons or more – to apply for a work, student, or visitor visa as a condition of eligibility; the applicable regulations do not, however, permit the issuance of more than one work visa per family absent “exceptional circumstances.”26 The European Union’s Temporary Protection Directive, in contrast, requires that “persons enjoying temporary protection [shall be authorized] to engage in employed or self-employed activities,”27 though it authorizes priority to be given to EU citizens and other most-favored foreigners.28 Even where refugees in developed countries do not face legal barriers to seeking work, they may nonetheless encounter bureaucratic and regulatory barriers to securing employment. Until 2019, for instance, Germany required refugee claimants applying for work permits to produce an employment offer containing a detailed job description. For the first fifteen months following registration of the asylum application, authorities in some regions conducted an examination to determine whether there were other job-seekers – in particular, German citizens and foreigners with residence permits – who might take the available position.29 In addition, refugees often face many of the same obstacles to securing work experienced by other foreigners. In Portugal, for example, refugees are subject

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53(3) Common Market Law Review 607 (den Heijer, “Common European Asylum System”). See generally E. Poptcheva et al., “Work and Social Welfare for AsylumSeekers and Refugees: Selected EU Member States,” Dec. 2015. Andrew & Renata Kaldor Centre for International Refugee Law, “Research Brief: Temporary Protection Visas (TPVs) and Safe Haven Enterprise Visas (SHEVs),” Aug. 2018, at 4. New Zealand Immigration Operational Manual at ss. C8.10.1, C8.10.5, www .immigration.govt.nz/opsmanual/#46723.htm, accessed Mar. 1, 2020. Council Directive on minimum standards for giving protection in the event of a mass influx of displaced persons and on the measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof, Doc. 2001/55/EC (July 20, 2001) (EU Temporary Protection Directive), at Art. 12. Ibid. “[F]or a period of 15 months following the registration of the asylum application and the issuance of the Aufenthaltsgestattung, the job centre usually has to carry out a ‘priority review,’ i.e. an examination of whether there is another job seeker who is suited for the offered position and who has a better status in terms of employment regulations, in particular German citizens or foreigners with a secure residence permit. As of August 2016, following an addendum to the Employment Regulation (Beschäftigungsverordnung), this ‘priority review’ has been suspended for three years in most parts of Germany . . . In any case, the priority review is not mandatory after 15 months of stay”: Asylum Information Database, “Country Report: Germany 2018” (2019), at 83, www.asylumineurope.org, accessed Mar. 1, 2020.

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to general rules regarding the presentation of original diplomas or, in the absence of these, a statement from an embassy or other entity representing the country of origin.30 More generally, while differences of culture and language, local unemployment, and discrimination may all work against any migrant’s success in the job market, there is evidence that refugees may be more adversely impacted and thus more likely to be both underemployed and overqualified than even other migrants:31 Compared to other third-country migrants, refugees face a number of particular barriers to accessing the labour market. These obstacles include the loss of identity documentation and qualification certificates, nonacceptance of qualifications or educational attainment, trauma and uncertainty, anxiety over family separation, the long period of inactivity in the asylum system, and limited social networks. These problems usually lead to their strong underemployment in the host countries. As a result, the employment rate amongst those third-country migrants who came to the EU seeking international protection is much lower than for all migrants.32

In response, many developed host states have established programs designed to assist refugees to adapt to local labor markets. Employment schemes involving subsidies and other benefits to those who employ refugees have, for example, been established in Denmark, Sweden, and Finland,33 while vocational training programs are available in Austria and Belgium to both recognized refugees and those whose claims are under consideration.34 The United States has traditionally placed tremendous emphasis on early employment for refugees; indeed, some arrangements between government and voluntary agency partners require refugees to accept any reasonable job offer to remain eligible for public assistance.35 30

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34 35

While a 2016 legislative order of the Directorate-General for Education (DGE) addressed the exemption of these requirements for refugee claimants and others in exceptional circumstances, “the guidelines are applicable only to children and young adults, given that in accordance to the law the competences of the DGE are limited to the preschool, basic and secondary education levels”: “Access to the Labour Market: Portugal,” Asylum Information Database, “Country Report: Portugal 2018” (2019), at 80, www .asylumineurope.org, accessed Mar. 1, 2020. F. Tanay et al.,“How are Refugees Faring on the Labour Market in Europe? A First Evaluation based on the 2014 EU Labour Force Survey Ad Hoc Module,” OECD and European Commission Working Paper 1/2016, at 27. See also Zetter and Ruaudel, “Right to Work: Part II,” at 128. J. Peschner et al., “Mobility and Migration in the EU: Opportunities and Challenges” (2015), at 193. K. Foti and A. Fromm, “Approaches to the Labour Market Integration of Refugees and Asylum Seekers” (2016), at 32–33. Ibid. at 30. States generally have broad discretion in their use and implementation of federal funds for such arrangements. Those administering one program in particular, the Refugee Cash Assistance (RCA) program, establish their own income requirements and other conditions of eligibility, duration, and level of benefits, as well as sanctions for non-compliance: B. Boland and

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6.1.1 Wage-Earning Employment Refugee Convention, Art. 17 Wage-Earning Employment 1. The Contracting States shall accord to refugees lawfully staying in their territory the most favourable treatment accorded to nationals of a foreign country in the same circumstances, as regards the right to engage in wage-earning employment. 2. In any case, restrictive measures imposed on aliens or the employment of aliens for the protection of the national labour market shall not be applied to a refugee who was already exempt from them at the date of entry into force of the Convention for the Contracting State concerned, or who fulfils one of the following conditions: (a) He has completed three years’ residence in the country; (b) He has a spouse possessing the nationality of the country of residence. A refugee may not invoke the benefit of this provision if he has abandoned his spouse; (c) He has one or more children possessing the nationality of the country of residence. 3. The Contracting States shall give sympathetic consideration to assimilating the rights of all refugees with regard to wageearning employment to those of nationals, and in particular of those refugees who have entered their territory pursuant to programmes of labour recruitment or under immigration schemes. Economic, Social and Cultural Covenant, Art. 6 1. The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses

A. Gaffney, “Understanding the Intersection between TANF and Refugee Cash Assistance Services: Findings from a Survey of State Refugee Coordinators,” TANF-RCA Brief, OPRE Report No. 2017-75, Sept. 2017, at 1, 3. To receive RCA and similar benefits, many states such as Oklahoma, Minnesota, and Texas require refugees to accept “appropriate” offers of employment, as determined by the service provider, as a condition of eligibility: see Oklahoma Department of Human Resources, 340:60-1-6 Program eligibility and procedures, Sept. 17, 2018, www.okdhs.org/library/policy/Pages/oac34006001-6000.aspx, accessed Mar. 1, 2020 (providing that refugee cash assistance benefits are “closed” for the entire household when a qualifying household member “refuses or fails to accept appropriate employment” without good cause); Minnesota Department of Human Services, Combined Manual, 0030.03 Refugee Cash Assistance, www.ymcahouston.org/, accessed Mar. 1, 2020 (requiring recipients of refugee cash assistance to “accept appropriate job offers”).

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or accepts, and will take appropriate steps to safeguard this right. 2. The steps to be taken by a State Party to the present Covenant to achieve the full realization of this right shall include technical and vocational guidance and training programmes, policies and techniques to achieve steady economic, social and cultural development and full and productive employment under conditions safeguarding fundamental political and economic freedoms to the individual. Given the breadth of work rights protected under general human rights law, it might seem unnecessary to give the Refugee Convention’s Art. 17 much attention. The contemporary value of Art. 17 – limited as it is to refugees “lawfully staying,” and even then presumptively subject to whatever conditions are imposed by the asylum state on the employment of most-favored noncitizens – seems at first glance to compare unfavorably with the wonderfully simple requirement of Art. 6 of the Economic Covenant, establishing “the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts.” Since refugees are part of “everyone”36 and everyone can “gain his living by work” in any state party to the Covenant, might it not be the case – at least since the entry into force of the Economic Covenant in 1976, and in particular given the pervasive overlap of accession to the two treaties37 – that a refugee-specific right to work is now largely superfluous?38 Why would a refugee ever choose or need to navigate the more complex requirements of Art. 17 of the Refugee Convention? The traditional answer was that Art. 17 remained critical because, despite the Economic Covenant’s sweeping language, the supervisory Committee on Economic, Social and Cultural Rights had treated the right to work as mainly

36

37 38

UN Committee on Economic, Social and Cultural Rights, “General Comment No. 20: Nondiscrimination in Economic, Social and Cultural Rights,” UN Doc. E/C.12/GC/20, July 2, 2009, at [30]. See text at note 42. See Chapter 1.5.4 at note 387. “In most [human rights] instruments, the right to work is expressed as a universal entitlement, unhindered by the concept of citizenship or any other ground of distinction. By contrast . . . the 1951 Convention relating to the Status of Refugees limits its . . . right to work by requiring some level of attachment . . . and the standard of protection is not the same as that enjoyed by citizens”: P. Mathew, Reworking the Relationship between Asylum and Employment (2012) (Mathew, Asylum and Employment), at 54. See also A. Edwards, “Article 17,” in A. Zimmermann ed., The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary 951 (2011) (Edwards, “Article 17”), at 972 (“In many ways . . . Art. 17 [of the Refugee Convention] . . . has been surpassed by developments in international human rights law”).

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a prohibition of unjust denial of work and subjection to forced labor39 – matters of much less immediate salience to refugees than simply being able freely to look for and accept offers of employment in the first place. And at least as important, except in fairly extreme cases bordering on exploitation, the Committee on Economic, Social and Cultural Rights was traditionally slow to critique exclusions from employment based on citizenship.40 Craven attributes this reluctance to the overwhelming weight of state practice, noting that “it is somewhat unlikely that States would consider themselves bound by a provision forcing them to eliminate any restrictions on the employment of aliens.”41 But in 2005 the UN’s Committee on Economic, Social and Cultural Rights adopted an interpretation of Art. 6 requiring that “[t]he labour market must be open to everyone under [a state’s] jurisdiction.”42 This was followed in 2009 by an explicit determination that “[t]he ground of nationality should not bar access to Covenant rights”:43 The Covenant rights apply to everyone including non-nationals, such as refugees, asylum-seekers, stateless persons, migrant workers and victims of international trafficking, regardless of legal status and documentation [emphasis added].44

Indeed, the Committee has recently been even more emphatic, determining that “[a]ll persons under the jurisdiction of the State concerned should enjoy 39

40

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44

M. Craven, The International Covenant on Economic, Social and Cultural Rights: A Perspective on its Development (1995) (Craven, ICESCR Commentary), at 205. The Committee has been described as exhibiting a “[r]eluctance . . . to be unequivocal in its defence of the equal treatment of aliens”: Craven, ICESCR Commentary, at 173. The Human Rights Committee has shown a comparable preparedness to assume the legitimacy of distinctions in the allocation of rights based on citizenship: see Chapter 1.5.5 at note 471 ff. More generally, “job requirements may not in themselves be deemed to be discrimination . . . [I]t is not an easy task to establish a clear line making it legitimate to resort to ‘inherent requirements’ or ‘security of the State’”: K. Drzewicki, “The Right to Work and Rights in Work,” in A. Eide et al. eds., Economic, Social and Cultural Rights: A Textbook 169 (1995), at 178. Craven, ICESCR Commentary, at 174. It is possible, however, that the argument against discrimination would be better received if predicated on the overarching obligation set by Art. 26 of the Civil and Political Covenant: see generally Chapter 1.5.5 at note 453 ff. On the other hand, “close to 50 of the [domestic] constitutions that recognise a right to work appear to recognise a constitutional right to work for all persons that is not conditioned on citizenship”: Mathew, Asylum and Employment, at 57–58. UN Committee on Economic and Social Rights, “General Comment No. 18: The Right to Work,” UN Doc. E/C.12/GC.18, Feb. 6, 2006, at [12b]. UN Committee on Economic, Social and Cultural Rights, “General Comment No. 20: Nondiscrimination in Economic, Social and Cultural Rights,” UN Doc. E/C.12/GC/20, July 2, 2009, at [30]. Ibid. See also UN Committee on Economic, Social, and Cultural Rights, “General Comment No. 23: Right to Just and Favourable Conditions of Work,” UN Doc. E/C.12/ GC/23, Apr. 27, 2016, at [5].

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Covenant rights . . . includ[ing] asylum seekers and refugees, as well as other migrants, even when their situation in the country is irregular [emphasis added].”45 It has also been made clear that refugees and asylum-seekers are examples of disadvantaged and marginalized populations,46 thus benefitting from the rule that “even in times of severe resource constraints, [the work rights of] disadvantaged and marginalized individuals and groups must be protected by the adoption of relatively low-cost targeted programmes.”47 These interpretive commitments are potentially very significant, suggesting as they do that all state parties to the Economic Covenant must grant work rights to all non-citizens, including refugees. In reviewing state compliance, the Committee has moreover frequently expressed its “concern” about the lack of access to employment opportunities for asylum-seekers and refugees.48 On occasion it 45

46

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UN Committee on Economic, Social and Cultural Rights, “Duties of States towards Refugees and Migrants under the International Covenant on Economic, Social and Cultural Rights,” UN Doc. E/C.12/2017/1, Mar. 13, 2017, at [3]. “In monitoring states, the [Committee] has identified many groups as vulnerable, including . . . migrants [and] refugees”: B. Saul et al., The International Covenant on Economic, Social and Cultural Rights: Commentary, Cases, and Materials (2014) (Saul, ICESCR Commentary), at 290. Specifically, “[b]ecause of their often precarious status, refugee workers remain vulnerable to exploitation, discrimination and abuse in the workplace, may be less well paid than nationals, and have longer working hours and more dangerous working conditions. States parties should enact legislation enabling refugees to work and under conditions no less favourable than for nationals”: UN Committee on Economic, Social, and Cultural Rights, “General Comment No. 23: Right to Just and Favourable Conditions of Work,” UN Doc. E/C.12/GC/23, Apr. 27, 2016, at [13(i)]. See also UN Committee on Economic, Social, and Cultural Rights, “General Comment No. 24: State Obligations under the International Covenant on Economic, Social and Cultural Rights in the Context of Business Activities,” UN Doc. E/C.12/GC/24, Aug. 10, 2017, at [8]. The Committee has also explicitly recognized that women refugees face intersectional discrimination by virtue of the combination of sex and refugee status: UN Committee on Economic, Social, and Cultural Rights, “General Comment No. 16: The Equal Rights of Men and Women in the Enjoyment of all Economic, Social and Cultural Rights,” UN Doc. E/C.12/2005/4, Aug. 11, 2005, at [5]. UN Committee on Economic and Social Rights, “General Comment No. 18: The Right to Work,” UN Doc. E/C.12/GC.18, Feb. 6, 2006, at [12(b)(ii)]. See e.g. “Concluding Observations on the Combined Fifth and Sixth Periodic Reports of Mexico,” UN Doc. E/C.12/MEX/CO/5–6, Apr. 17, 2018, at [24]; “Concluding Observations on the Fifth Periodic Report of Australia,” UN Doc. E/C.12/AUS/CO/5, July 11, 2017, at [24]; “Concluding Observations on the Sixth Periodic Report of Cyprus,” UN Doc. E/C.12/ CYP/CO/6, Oct. 28, 2016, at [15]; “Concluding Observations on the Second Periodic Report of Lebanon,” UN Doc. E/C.12/LBN/CO/2, Oct. 24, 2016, at [23]; “Concluding Observations on the Fifth Periodic Report of Costa Rica,” UN Doc. E/C.12/CRI/CO/5, Oct. 21, 2016, at [25]; “Concluding Observations on the Combined Initial and Second Periodic Reports of Thailand,” UN Doc. E/C.12/THA/CO/1–2, June 19, 2015, at [15]; “Concluding Observations on the Second Periodic Report of China,” UN Doc. E/C.12/CHN/CO/2, June 13, 2014, at [42]; “Concluding Observations on the Second to Fourth Periodic Reports of Rwanda,” UN Doc. E/C.12/RWA/CO/2–4, June 10, 2013, at [11]; and “Concluding Observations on the Third Periodic Report of Azerbaijan,” UN Doc. E/ C.12/AZE/CO/3, June 5, 2013, at [9].

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has gone farther – for example, inviting Germany, Morocco, Sri Lanka, and the United Kingdom specifically to “ensure” or “provide” refugees with access to employment,49 suggesting that Serbia needed to “intensify” its efforts to combat employment discrimination against refugees,50 and advising Uzbekistan that it needed to “take practical steps” to enable refugees to work legally.51 It is, however, striking that although most countries systematically prohibit or at least significantly constrain the ability of non-citizens to work, the Committee has never called for the dismantling of such laws. This very cautious approach52 may suggest that despite all of its otherwise inclusive thinking on refugee work rights, the Committee on Economic, Social and Cultural Rights acknowledges that the concrete reality [is] that most states impose labour market restrictions on foreigners; they do so because they believe international law entitles them to do so; and most states have not sought to formally interpret or reserve their Article 6 obligations because it is not understood as requiring them to guarantee the right to work to any non-citizen.53

In other words, the duty to grant work rights to all set by Art. 6 of the Covenant is assumed by states to be constrained by their overarching sovereign right to exclude non-citizens from their territory, or in the alternative to admit them only under such conditions as they choose – including the denial of work rights. In truth, the very notion that rights can be “traded away” in order to secure admission to a state might sensibly be contested. After all, if rights are truly inalienable, on what basis may they lawfully be renounced? And why in particular is it assumed to be fair to ask non-citizens to give up work rights as a condition of admission but not, for example, to renounce the right to equality before courts and tribunals or to security of person? The legality of the assumed right of states to withhold work rights from noncitizens in return for admission has been thoughtfully challenged by Mathew, who 49

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“Concluding Observations of the Committee on Economic, Social and Cultural Rights: Germany,” UN Doc. E/C.12/DEU/CO/5, July 12, 2011, at [13]; “Concluding Observations on the Fourth Periodic Report of Morocco,” UN Doc. E/C.12/MAR/CO/4, Oct. 22, 2015, at [14]; “Concluding Observations on the Fifth Periodic Report of Sri Lanka,” UN Doc. E/ C.12/LKA/CO/5, Aug. 4, 2017, at [20]; and “Concluding Observations on the Sixth Periodic Report of the United Kingdom of Great Britain and Northern Ireland,” UN Doc. E/C.12/GBR/CO/6, July 14, 2016, at [24]. “Concluding Observations on the Second Periodic Report of Serbia,” UN Doc. E/C.12/ SRB/CO/2, July 10, 2014, at [11]. “Concluding Observations on the Second Periodic Report of Uzbekistan,” UN Doc. E/ C.12/UZB/CO/2, June 13, 2014, at [9]. Mathew accurately captures this tentativeness, observing that “[m]any concluding observations touch on the question of the right to work for refugees and asylum seekers”; that the supervisory committee “has also recommended that specific laws be introduced” and at times “expressed concern” or “was alarmed” at denials of refugee work rights [emphasis added]”: Mathew, Asylum and Employment, at 107–108. Saul, ICESCR Commentary, at 317.

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argues that this approach infringes Art. 5(1) of the Economic Covenant which disallows limitations “to a greater extent than is provided for in the present Covenant”54 and may even amount to a reservation incompatible with the fundamental object and purpose of the Economic Covenant.55 She further contends that whatever the salience of the implied sovereign authority point as a general proposition,56 at least for refugees “in relation to whom it is clear that nonrefoulement applies on an indefinite, ongoing basis, the objective of immigration control is largely irrelevant.”57 That is, even if it is conceded that states normally have the sovereign authority to exclude non-citizens for such reasons as they elect or in the alternative to set conditions on access (including the denial of work rights) for those non-citizens that they allow to enter, refugees cannot sensibly be subject to those general norms. This is because by virtue of having voluntarily and explicitly agreed to allow refugees to enter at least provisionally in line with the non-derogable duty of non-refoulement codified in Art. 33 of the Refugee Convention,58 states have already chosen to attenuate their sovereign authority over migration control. Mathew thus suggests that because sovereign authority can no longer be invoked to justify limitation of refugee work rights, “refugees and asylum-seekers who, by law, cannot be returned to their countries of origin must be allowed to work.”59 This is a compelling argument. But even if this reading ultimately finds acceptance it does not follow that an inclusive understanding of work rights in Art. 6 of the Economic Covenant has eclipsed the admittedly more constrained duties under the Refugee Convention.60 54 56

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Economic Covenant, at Art. 5(1). 55 Mathew, Asylum and Employment, at 116. Mathew concedes that “international human rights law is superimposed upon and interrelated with the international state system and is in practice limited by border control . . . Those states which ensure the right to work to ‘everyone’ obviously do not accept that everyone can therefore enter in order to work in that state”: ibid. at 1, 58. Situations in which there is no alternative means to access the necessities of life raise a distinct legal claim under Art. 11 of the Covenant (see Chapter 4.4.1). This distinct duty has been relied on in e.g. “Concluding Observations on the Fourth Periodic Report of Austria,” UN Doc. E/C.12/ AUT/CO/4, Dec. 13, 2013, at [13]. Mathew, Asylum and Employment, at 115–116. This view may be what animates Edwards’ position that “[w]hen it comes to whether asylum seekers and refugees benefit from the rights conferred in Art. 6 . . . the real issue here is where one can enjoy that right and which State is responsible for it”: Edwards, “Article 17,” at 959. See Chapter 4.1.2 at note 222 ff. Mathew, Asylum and Employment, at 60. “Refugees are non-citizens, but unlike most noncitizens they cannot return and must not be returned to their country of origin. This is a significant difference . . . which should unlock many rights for refugees on the basis that the comparator group should be citizens or a category of resident foreigners similar to citizens, namely permanent residents”: ibid. at 126. “The work rights recognized under Article 17 . . . of the Refugee Convention . . . are . . . obligations of immediate result and not subject to progressive realization, thus raising the bar for implementation compared with the general position under the ICESCR. In this respect, the Refugee Convention standards arguably operate as lex specialis in determining

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First, the Committee on Economic, Social and Cultural Rights has defined the accessibility dimension of the right to work set by Art. 6 of the Covenant to focus on the avoidance of “discrimination in access to and maintenance of employment.”61 Even the core obligation “[t]o ensure the right of access to employment, especially for disadvantaged and marginalized individuals and groups”62 is framed in tandem with duties to avoid “any measure that results in discrimination”63 and to adopt an affirmative action strategy for those who are disadvantaged and marginalized.64 It is thus difficult to read Art. 6 as necessarily requiring parity of refugee access to work with that enjoyed by citizens or any other group.65 While it is clear that refugee and non-citizen status more generally are impermissible grounds for discrimination in accessing work,66 so long as differential access to work for refugees (or non-citizens generally) is found to be “objective and reasonable” it is not discriminatory and hence does not fall afoul of the Covenant.67 And as Saul notes, this raises once again the thorny question of the presumed sovereign right of states to limit access to work by foreigners: In relation to the right to work of non-citizens, general international law provides an objective and reasonable basis for differentiating between citizens and non-citizens, on the basis that it permits states to restrict labour market access by foreigners (unless there are specific commitments allowing access). In the alternative, labour restrictions on non-nationals may be justified by the general limitations clause in Article 4 of the ICESCR, again on the basis of a permissive international rule . . . [S]tates enjoy a sovereign discretion whether to permit labour market access by foreigners, [and] such choices may be regarded as “objective and reasonable” differentiations on the basis of national origin or foreign citizenship status for various reasons.68

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the right to work of refugees under Article 6 of the ICESCR, placing them in a more advantageous position than other foreign nationals in certain circumstances. Refugees are not entitled to the same rights as nationals, but nor are their rights as limited as those of foreigners generally”: Saul, ICESCR Commentary, at 321. UN Committee on Economic and Social Rights, “General Comment No. 18: The Right to Work,” UN Doc. E/C.12/GC.18, Feb. 6, 2006, at [12(b)(i)]. Ibid. at [31(a)]. 63 Ibid. at [31(b)]. 64 Ibid. at [31(c)]. But see Edwards, “Article 17,” at 961, arguing that “[t]he right to work under Art. 6 ICESCR . . . [requires] treatment equal to that enjoyed by nationals (unless exceptions could be read into the provisions).” “The anti-discrimination focus of human rights law is not up to the task of defeating, as opposed to softening, sovereignty”: Mathew, Asylum and Employment, at 60. “Freedom from discrimination in work is subject to the usual test for permissible ‘reasonable and objective,’ and proportionate, differential treatment under non-discrimination law . . . In monitoring states, the [Committee] has seldom identified specific measures which involve discrimination or unequal treatment and has instead tended to more generally urge the state to prevent discrimination and to ensure equal treatment”: Saul, ICESCR Commentary, at 290–291. See generally Chapter 1.5.5. Saul, ICESCR Commentary, at 315–316. He further notes that “[n]either the drafting history nor subsequent state practice suggests that the ICESCR modifies the general position under international law”: ibid. at 316. In any event,“[i]n monitoring states, the

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While as noted above69 there are good reasons to reject this view in relation to refugees, it remains that the Committee on Economic, Social and Cultural Rights has yet to say as much. This means that, at least for the time being, it would be necessary to ground the fallback discrimination argument by reference to the question of proportionality – for example, that there is discrimination where denial of access to work is “unduly prolonged,”70 if it implicates “los[s] [of refugee] self-esteem and struggle to participate in the longer term,”71 or cannot be justified by reference to the need to “promote the general welfare of society.”72 These points are all arguable, of course; but none is remotely watertight. Indeed, even as it took note of the requirements of the Economic Covenant in striking down an absolute bar on the employment of refugee claimants,73 the Supreme Court of Ireland opined that there might be “legitimate considerations justifying a distinction between citizens and non-citizens who are asylum seekers and in particular permitting a policy of restriction on employment,” including concerns regarding a possible “pull factor,” the “limited basis” upon which the refugee claimant is present, and the need to avoid any policy “which makes it more difficult to remove the unsuccessful applicant from the State.”74 The Court concluded: Even if some employment is permitted after some time, it does not follow that any employment should be permitted: it may be legitimate to limit that to defined areas of the economy, perhaps where there is a demonstrated need.75

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[Committee] has seldom identified specific measures which involve discrimination or unequal treatment and has instead tended to more generally urge the state to prevent discrimination and ensure equal treatment”: ibid. at 291. See text at note 57. Mathew, Asylum and Employment, at 117. The alternative “proportionality” argument Mathew makes – “preventing asylum-seekers from working may be disproportionate because, unlike other aliens, they cannot be sent elsewhere” (ibid. at 119) – is not really a proportionality argument at all, but rather a reiteration of her earlier important point that the inability lawfully to refuse provisional entry to refugees is in substance an attenuation of any sovereign right to exclude non-citizens generally. A. Bloch, Making it Work: Refugee Empowerment in the UK (2004), at 5. A. Edwards, “Human Rights, Refugees, and the Right ‘to Enjoy’ Asylum,” (2005) 17(2) International Journal of Refugee Law 293, at 327. This point may overlap with an argument made by Mathew, namely that “economic evidence does not support the imposition of restrictions on asylum-seekers’ rights to work as a protective measure for citizens, even those citizens who are most vulnerable and thought to be in competition with refugees and asylum-seekers”: Mathew, Asylum and Employment, at 119. “[W]here there is no temporal limit on the asylum process, then the absolute prohibition on seeking of employment . . . is contrary to the constitutional right to seek employment”: NHV v. Minister for Justice and Equality, [2017] IESC 35 (Ir. SC, May 30, 2017), at [21]. Ibid. at [18]. Ibid. at [18]. It is moreover unclear how the restriction of refugee workers to particular sectors or the imposition of a demonstrated need requirement might amount to a proportionate response to the three specific concerns raised by the Court. As the South

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Art. 17 of the Refugee Convention, in contrast, avoids this murky inquiry altogether, since it does not merely prohibit discrimination but rather sets an unambiguous standard that must be achieved – namely that refugees must be granted work rights at least as good as those of the most-favored categories of non-citizens,76 and must also be exempted from certain general limitations on access imposed on other non-nationals.77 Second, under Art. 6 of the Economic Covenant “[t]he principal obligation of States parties is to ensure the progressive realization of the exercise of the right to work.”78 The Committee has focused on the duty of non-discrimination and the obligation “to take steps”79 toward realization of the right by adoption and implementation of a strategy and plan of action as relevant duties of immediate result80 – meaning that while access to work for refugees is something to be pursued in a “deliberate, concrete and targeted” manner,81 the Covenant does not require that it be achieved by any particular point in time.82 Under the Refugee Convention, on the other hand, access to work must be granted as soon as lawful stay is achieved.83

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African Supreme Court of Appeal put it, “differentiation between citizens and permanent residents on the one hand, and all other foreigners on the other, [must have] a rational foundation and serve[] a legitimate governmental purpose”: Somali Association of South Africa v. Limpopo Department of Economic Development, Environment and Tourism, Dec. No. 48/2014 (SA SCA, Sept. 26, 2014), at [24]. 77 See text at notes 100 and 166 ff. See text at note 181. UN Committee on Economic and Social Rights, “General Comment No. 18: The Right to Work,” UN Doc. E/C.12/GC.18, Feb. 6, 2006, at [19]. The most straightforward implication of this duty is that it bars retrogression: ibid. at [21]. See Saul, ICESCR Commentary, at 363. UN Committee on Economic and Social Rights, “General Comment No. 18: The Right to Work,” UN Doc. E/C.12/GC.18, Feb. 6, 2006, at [19], [31], [33]. “[T]here is no obligation on states to immediately guarantee full employment, [but] they must adopt a national employment policy directed towards the progressive expansion over time of the quantity and quality of employment opportunities . . . prioritizing the needs of the most vulnerable or disadvantaged groups”: Saul, ICESCR Commentary, at 280. See Chapter 1.5.4 at note 409 ff. While not directly relevant here, Saul takes the view that the prohibition of forced labor and of unjustified dismissal are also duties of immediate result: ibid. UN Committee on Economic and Social Rights, “General Comment No. 18: The Right to Work,” UN Doc. E/C.12/GC.18, Feb. 6, 2006, at [19]. “[E]ven in situations of severe economic constraints, the [Committee] has conceded little to states”: Saul, ICESCR Commentary, at 364. At some extreme point, of course, it will be difficult for a state to make the case that it is truly taking steps to achieve the right to work. As Edwards notes, “[p]rotracted refugee situations in which refugees are housed in camps for extended periods without right to work or to engage in self-employment activities, would [call into] question the fulfilment of Art. 6 ICESCR”: Edwards, “Article 17,” at 960. Under Art. 17 of the Refugee Convention, in contrast, entitlement to work would be achieved much earlier: the right to undertake employment as soon as a refugee’s presence is ongoing in practical terms (see text at note 120) and the right to undertake self-employment even earlier, namely as soon as the individual has satisfied any requirements for assessment of status (see Chapter 5.3 at note 476). See text at note 120.

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Third, as earlier noted,84 Art. 2(3) of the Economic Covenant allows developing countries “with due regard to human rights and their national economy . . . [to] determine to what extent they would guarantee . . . economic rights . . . to nonnationals.”85 Scholars have at times sought to downplay the rather straightforward language of this clause by appealing to historical context,86 reading-in a requirement of “necessity, reasonableness and proportionality,”87 or invoking broad-brush overarching principles such as the need to ensure “human dignity.”88 Relying on all of these arguments, for example, Mathew argues: It is apparent . . . that where a non-national is either not returnable (because of the presumptive application of the norm of non-refoulement) or his or her stay on state territory is tolerated regardless of legal status, then developing states should not be able to deny the right to work altogether. Asylumseekers should have access to the employment market, both in order to survive and for other reasons connected with human dignity.89

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See Chapter 1.5.4 at note 432 ff. 85 Economic Covenant, at Art. 2(3). While conceding the “admittedly significant limitations of the [Economic] Covenant” and that it is “not clear what Art. 2(3) means,” Mathew nonetheless provides a thoughtful argument that vulnerable groups such as refugees ought not to be caught by the Art. 2(3) limitation because it was conceived simply “to ameliorate the impact of colonialism upon independence,” specifically to allow newly independent states to deny economic rights to “non-nationals who, as a result of colonialism, control certain aspects of the economy in developing states”: Mathew, Asylum and Employment, at 112–113. See also Edwards, “Article 17,” at 960 (“While ambiguously worded, the purpose of Art. 2, para. 3 was to end the domination of certain economic groups of nonnationals during colonial times. For this reason it ought to be interpreted narrowly in the context of asylum seekers and refugees”); and E. Lester, “Work, the Right to Work, and Durable Solutions: A Study on Sierra Leonean Refugees in The Gambia,” (2005) 17(2) International Journal of Refugee Law 331, at 350. A contrary view is, however, taken in e.g. W. McKean, Equality and Discrimination under International Law (1983), at 201. Edwards, “Article 17,” at 960; adopted in Mathew, Asylum and Employment, at 111 (“Article 2(3) should, like any other limitations clause, be read subject to the requirements of necessity, reasonableness and proportionality”); see also ibid. at 115. Edwards, however, provides no support for her position. Mathew invokes the general rule in Art. 4 of the Economic Covenant (ibid. at 114), a doubtful basis to override the more specific language of Art. 2(3). But even if Art. 4 is applicable, Mathew ignores the fact that Art. 4 requires only that the limitations be “determined by law,” “compatible with the nature of these rights,” and “solely for the purpose of promoting the general welfare in a democratic society.” She instead awkwardly seeks to leverage a Human Rights Committee interpretation of the word “necessary” – a term not found in Art. 4 of the Economic Covenant – in order to justify her insistence on “necessity, reasonableness and proportionality”: ibid. at 115, n. 57. Edwards, “Article 17,” at 960. “Dignity” is, for example, a norm of regional European law (see in particular Charter of Fundamental Rights of the European Union, Doc. 2000/C 364/ 01, adopted Dec. 18, 2000, at Art. 1). But respect for the amorphous notion of “dignity” is not a duty under the UN Covenants, which focus instead on ensuring specific entitlements that are agreed to comprise the aspects of human dignity appropriate for protection at international law. Mathew, Asylum and Employment, at 111–112.

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It is of course true that access to work may in practice be required if there is no other means for an individual to secure access to the necessities of life90 – an argument that is in practical terms especially compelling for refugees who, as Mathew rightly observes, are not in a position to meet their survival needs by departing the country. It is also correct that “dignity” claims have resonance in some national legal systems,91 and that such arguments have proved especially successful in advancing refugee work rights in South Africa.92 The difficulty, however, is that neither of these points is the basis to contend for a general rule that Art. 2(3) does not mean what it says.93 It is also surely telling that none of the arguments advanced as constraints on Art. 2(3) has been embraced by the Committee on Economic, Social and Cultural Rights.94 As such it remains the case that with the vast majority of the world’s refugees living in the less developed world, the Art. 2(3) prerogative could amount to a death knell for any global commitment to ensuring the ability of refugees to access work. In contrast, as Chetail notes, Art. 2(3) “cannot be used to avoid article[] 17 . . . of the Refugee Convention governing access to employment.”95 90 91

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See Chapter 4.4. The notion of “dignity” was, for example, invoked in support of recognizing asylum-seeker work rights by the UK Supreme Court in R (ZO, Somalia) v. Secretary of State for the Home Department, [2010] UKSC 36 (UK SC, July 28, 2010), at [31]. “Dignity” as codified in South African constitutional law has been invoked to safeguard the work rights of “applicants for asylum who have no reasonable means of support other than through employment. A prohibition against employment in those circumstances is a material invasion of human dignity”: Minister of Home Affairs v. Watchenuka, (2004) 1 All SA 21 (SA SCA, Nov. 28, 2003), at [33]. More generally, the Court observed that “[t]he freedom to engage in productive work – even where that is not required in order to survive – is indeed an important part of human dignity . . . for mankind is pre-eminently a social species with an instinct for meaningful association. Self-esteem and the sense of self-worth – the fulfilment of what it is to be human – is most often bound up with being accepted as socially useful”: ibid. at [27]. An argument that might provide sufficient textual ambiguity to require greater reliance on context, object and purpose for interpretive purposes is that the notion of “developing countries” is anachronistic and hence an unwieldy basis upon which to deny economic rights to non-nationals. For example, the World Bank model is that “[e]conomies are currently divided into four income groupings: low, lower-middle, upper-middle, and high”: World Bank, “Data,” datahelpdesk.worldbank.org/knowledgebase/articles/378834how-does-the-world-bank-classify-countries, accessed Mar. 1, 2020. Nor is there much force to the rather creative argument that the flip side of Art. 2(3) is logically a presumption that states of the developed world do have a duty to allow noncitizens to work: even though some countries have entered reservations to guard against such an interpretation, neither state practice nor the pattern of inquiry before supervisory bodies is in line with such a construction. See Saul, ICESCR Commentary, at 316–317. V. Chetail, “The Human Rights of Migrants in General International Law: From Minimum Standards to Fundamental Rights,” (2013) 28(1) Georgetown Immigration Law Journal 225, at 249–250. See also Edwards, “Article 17,” at 961: “[G]iven the distinct status that refugees enjoy vis-à-vis other migrants . . . Art. 2, para. 3 should not be applied to ‘dilute’ rights to which refugees are duly entitled.”

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To be clear, the point being made here is emphatically not that Art. 6 of the Economic Covenant has no value to refugees. It might for example be determined that the US policy of requiring a refugee to accept “any available job” in order to remain eligible for assistance payments96 breaches the Economic Covenant’s prohibition of unlawful forced labor, assuming the assistance scheme is critical to enabling the refugee to secure access to the necessities of life.97 Similarly, Chad’s denial to refugees of the right to undertake lawful work – knowing that this forces many refugee women into offering “survival sex” in order to make ends meet98 – is clearly at odds with the right of those refugee women “freely [to] choose[] or accept[]” employment as sex workers – and is likely also a form of inhuman or degrading treatment.99 It remains, though, that there are immense uncertainties about the ability truly to rely on Art. 6 of the Economic Covenant to ensure that refugees receive the right to work. The uncertainty arises not only from the foundational question of how to reconcile Art. 6 to the right of states to limit non-citizen work rights as an incident of the presumed sovereign authority to exclude non-citizens, but also from the fact that Art. 6 focuses on non-discrimination rather than setting a clear obligation; that the duty to provide access is in any event framed as requiring only progressive implementation, rather than subject to a clear duty to deliver work rights at any particular moment in time; and that Art. 2(3) could deny work rights altogether to refugees and other non-citizens in countries of the less developed world where most refugees live. For these reasons, Art. 17 of the Refugee Convention retains real value. As Saul concludes, Art. 17 “rais[es] the bar for implementation compared with the general position under the [Economic Covenant].”100 First, the right to work guaranteed by Art. 17 of the Refugee Convention does not merely require non-discrimination, but affirmatively enfranchises refugees at the same level of entitlement to work as the most-favored categories of non-citizens. Second, it is not conceived as a duty of progressive implementation: once its requirements are met, the obligation to allow refugees to work accrues immediately. Third and most important, Art. 17 binds all state parties, whatever their level of economic development. Only five countries of the less developed world – Botswana, Burundi, Iran, Papua New Guinea, and Sierra Leone – maintain 96 97

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See text at note 35. This is because there is a binding duty under international law to provide particularly vulnerable populations with at least the most basic necessities of life: see Chapter 4.4.1 at note 1562 ff. 99 See text at note 12. See Chapter 4.3.2. Saul, ICESCR Commentary, at 321. “The phrase ‘wage-earning employment’ is to be interpreted in its widest sense to apply to every case in which a person is in paid employment. Self-employment and the liberal professions are excluded”: Edwards, “Article 17,” at 968. While this might seem narrower than the cognate term “work” in Art. 6 of the Economic Covenant, the Committee on Economic, Social and Cultural Rights “seems to confine the notion of work to paid work”: Saul, ICESCR Commentary, at 281.

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reservations to Art. 17 of the Refugee Convention which are broad enough to allow them to enforce a general policy of excluding refugees from wage-earning employment altogether.101 For all other less developed state parties, the possible right to exclude refugees from work under Art. 2(3) of the Economic Covenant102 is effectively trumped by Art. 17 of the Refugee Convention. The strength of Art. 17 follows from the determination of the drafters of the Refugee Convention to provide refugees with better than the lowest common denominator of state practice, under which non-citizens are often excluded from the labor market.103 The drafters clearly recognized, and intended, that Art. 17 would require states to grant refugees preferential access to work opportunities, even though this had not been the case under earlier refugee treaties.104 As the American delegate observed, “the mere fact that the provisions of a convention required a change in the existing laws of any country was not a valid argument against them. If all national laws were to remain unchanged, why should there be a convention?”105 This is not to say that Art. 17 was conceived in naïveté. Then as now, governments were keenly aware of the domestic political and other risks of allowing refugees to compete with their own citizens for employment opportunities. The Austrian representative, for example, insisted that “[e]very state had the duty of giving its own nationals priority consideration.”106 While it might be reasonable to enfranchise refugees in the domestic labor market during times of economic expansion,107 the same was not true when host 101

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See reservations and declarations of state parties, available at https://treaties.un.org, accessed Dec. 21, 2020. Indeed, one of these states – Papua New Guinea – withdrew its reservation to Art. 17(1) in relation to refugees transferred to its territory by Australia (though not more generally). Three other less developed countries – Malawi, Zambia, and Zimbabwe – have entered reservations requiring only treatment at the same level as is afforded aliens generally which, in the light of Art. 2(3) of the Economic Covenant, may be no access to work at all. In each of these countries, however, the more specific duties under Art. 17(2) still apply, subject to the reservation to that paragraph entered by all three countries requiring that refugees entitled to the benefit of Art. 17(2) secure a work permit. Austria and Latvia maintain a blanket reservation to Art. 17 of the Refugee Convention, but as developed countries are bound by the duty progressively to implement the right to work under Art. 6 of the Economic Covenant. The nature of that duty is described in Chapter 1.5.4 at note 405 ff. See Chapter 1.5.4 at note 432 ff. “[I]f the Committee merely granted to refugees the treatment granted to foreigners generally, it would actually bring about no improvement in their lot”: Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.13, Jan. 26, 1950, at 3. “Article 17 is a more generous provision than those of the earlier [refugee] treaties”: Edwards, “Article 17,” at 954. Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.37, Aug. 16, 1950, at 15. See also Statement of Mr. Weis of the IRO, ibid. at 16. Statement of Mr. Fritzer of Austria, UN Doc. A/CONF.2/SR.9, July 6, 1951, at 8. “Refugees must be guaranteed normal living conditions, which implied freedom to engage in work. The existing state of the labour market allowed the country to observe that

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countries were confronted with high domestic unemployment.108 As the Italian government explained, A country such as Italy, which was over-populated and therefore had a great deal of unemployment, and whose frontiers and Adriatic coast lay adjacent to areas which formed an inexhaustible source of refugees, could definitely not consider assuming commitments regarding the employment . . . of foreign refugees, which could only add to the difficulties already confronting the Italian economy.109

The French and Belgian representatives worried that a generous approach to the right of refugees to work “would be unfavourably received by the trade unions concerned in the country of reception and that, in fact, might work against the refugees.”110 Indeed, the observer from the American Federation of Labor explicitly invoked the importance for workers of a “defense of their rights against foreign competition.”111 His organization therefore pressed for language that made refugee rights subject to “the laws and regulations for the protection of the national labour market.”112 More generally, governments just recovering from the Second World War were anxious not to jeopardize their plans for economic recovery by allowing the free entry of refugees into the workforce. The situation of the United Kingdom was typical of that faced by many European countries. While emphasizing that Britain had previously authorized refugees to work and “that the favourable treatment provided for them had caused no serious hardship for British workers,”113 Sir Leslie Brass nonetheless explained the salience of changed circumstances: [T]he war had altered the economic situation of the United Kingdom which was currently facing serious difficulties resulting both from the material

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principle. Nevertheless his country could not undertake to apply the provisions [of Art. 17(2)] for an indefinite period”: Statement of Mr. Schurch of Switzerland, ibid. at 6. “It should not be forgotten that a large number of Swiss nationals were obliged to leave their own country to find work”: Statement of Mr. Schurch of Switzerland, ibid. at 6. See also Statement of Mr. Juvigny of France, UN Doc. E/AC.32/SR.37, Aug. 16, 1950, at 14: “France . . . desired to be able to control the movement of labour, and the refusal to permit a refugee to take employment in an overcrowded branch of activity in which there were already thousands of French subjects unemployed did not amount to a denial of the right to work.” Statement of Mr. Del Drago of Italy, UN Doc. A/CONF.2/SR.9, July 6, 1961, at 9. Earlier in the drafting process, Italy had expressed its willingness to allow refugees to work “as soon as unemployment has fallen back to the average figure recorded for a certain number of pre-war years to be determined”: United Nations, “Compilation of the Comments of Governments and Specialized Agencies on the Report of the Ad Hoc Committee on Statelessness and Related Problems,” UN Doc. E/AC.32/L.40, Aug. 10, 1950 (United Nations, “Compilation of Comments”), at 14. Statement of Mr. Rain of France, UN Doc. E/AC.32/SR.13, Jan. 26, 1950, at 4. Mr. Cuvelier of Belgium “shared the view of the representative of France”: ibid. Statement of Mr. Stolz of the American Federation of Labor, ibid. at 12. 112 Ibid. Statement of Sir Leslie Brass of the United Kingdom, ibid. at 5.

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damages it had sustained and from the fact that its economy had been geared to war production over a period of several years. To remedy the situation, the United Kingdom, in agreement with the employers and trade union representatives concerned, and for the common good of the people, had had to adopt a system of planned economy. The United Kingdom had had, for example, to subject wage-earners who were its own nationals to certain restrictions.114

In other countries, recovery efforts had been pursued by strategies more directly targeted at the regulation of non-citizen labor. French law, for example, “authorized the fixing of a maximum percentage of aliens employable in each branch of activity,”115 while Sweden “had been obliged for domestic reasons to introduce a system of labour permits for all aliens which, at the present juncture, it was unable to abandon.”116 Concerns such as these could very easily have resulted in either the failure to guarantee refugees the right to work, or no more than a minimalist commitment at the lowest common denominator. But the opposite occurred. To begin, the drafters decided not to work from the draft article proposed by the Secretary-General, under which a full right to work would ordinarily be denied during the refugee’s first three years in the host state, and even then would be only a right to claim exemption from the full “severity” of general limits on the employment of noncitizens.117 Instead, they selected as their model the competing French proposal,118 which began with a much stronger, affirmative statement of entitlement. Once a refugee was “regularly resident” in a state party, he or she would be entitled to benefit from “the most favourable treatment given in the country in question to nationals of a foreign country as regards the right to engage in wage-earning employment.”119 The difference of approach is key: not only did the French model provide that the right to work would accrue on the basis of a more flexible (and usually earlier attained) level of attachment,120 but the right was conceived as having affirmative content at a fairly high contingent level, namely the same right to work as enjoyed by “most-favored foreigners.”121 Despite all of their concerns 114 115 116 117

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Ibid. See also Statement of Mr. Larsen of Denmark, ibid. at 6–7. Statement of Mr. Juvigny of France, UN Doc. E/AC.32/SR.37, Aug. 16, 1950, at 13. Statement of Mr. Petren of Sweden, UN Doc. A/CONF.2/SR.9, July 6, 1951, at 6. United Nations, “Memorandum by the Secretary-General to the Ad Hoc Committee on Statelessness and Related Problems,” UN Doc. E/AC.32/2, Jan. 3, 1950 (Secretary-General, “Memorandum”), at 34. This approach was based on that previously adopted in earlier refugee conventions. Reliance on the French draft was proposed by the Chairman of the Ad Hoc Committee, Mr. Chance of Canada, UN Doc. E/AC.32/SR.13, Jan. 26, 1950, at 2. France, “Proposal for a Draft Convention,” UN Doc. E/AC.32/L.3, Jan. 17, 1950 (France, “Draft Convention”), at 6. Under neither proposal, however, was there a suggestion that most refugees should be allowed to work from the beginning of their time in a host country. Under the Secretary-General’s standard, in contrast, refugees would only have been entitled to relief from restrictions on the employment of non-citizens. This would not

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about domestic unemployment and the requirements of their planned economies, the drafters did not depart from these two baseline principles in fleshing out the content of Art. 17. What accounts for this apparently courageous stand? Fundamentally, there seems to have been a clear awareness among the drafters that there are few rights more central to refugee self-sufficiency than the right to work. As the American representative observed, “without the right to work all other rights were meaningless. Without that right no refugee could ever become assimilated in his country of residence.”122 It was therefore decided that it made more sense to set the right to work at a meaningfully high level, recognizing that states not yet in a position to enfranchise refugees within their domestic labor market would feel compelled to enter a reservation to the treaty.123 As the Chairman of the Ad Hoc Committee explained, It had, of course, been realised that the inclusion of provisions which, without representing ideals to strive for, were too generous for some Governments to accept, would lead to their making reservations, but it had been thought that such a course might in the long run have a good effect even on Governments which felt themselves unable to accord the treatment prescribed in the Convention upon signing it. Other such cases had arisen in the past where refugees and those who had the interests of refugees at heart had addressed appeals to Governments applying low standards, pointing to the higher standards applied by other Governments, and so had gradually produced an improvement in their policies.124

This strategy of setting a relatively high standard with awareness that some reservations would initially be likely was affirmed by the President of the Conference of Plenipotentiaries:

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have entitled them to the special privileges often enjoyed by the citizens of most-favored countries. The general meaning of this contingent standard is set out in detail at Chapter 3.3.1, and analyzed in relation to the right to work at note 160 ff. Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.37, Aug. 16, 1950, at 12. This thinking is shared by Craven, who writes that “[n]ot only is [work] crucial to the enjoyment of ‘survival rights’ such as food, clothing, or housing, [but] it affects the level of satisfaction of many other human rights such as the rights to education, culture, and health . . . [W]ork is an element integral to the maintenance of the dignity and self-respect of the individual”: Craven, ICESCR Commentary, at 194. In response to a suggestion by the Chairman of the Ad Hoc Committee that “the question was whether article [17] should remain unchanged, thereby risking numerous reservations, or, with a view to obviating reservations, . . . an attempt should be made to restrict the provisions concerning wage-earning employment to a minimum,” the Belgian representative answered that he “was in favour of the first alternative”: Statements of the Chairman, Mr. Larsen of Denmark, and of Mr. Herment of Belgium, UN Doc. E/AC.32/ SR.37, Aug. 16, 1950, at 17. See also Statement of Mr. Robinson of Israel, ibid. at 18. Statement of the Chairman, Mr. Larsen of Denmark, ibid. at 11–12.

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[T]he Conference . . . could aim either at perfection or at reaching the lowest common denominator of agreement. If the latter course were adopted, the government which insisted on the most restrictive conditions would be in a position to dictate the final form that the provisions of the draft Convention should take. If, on the other hand, the former course was followed, many governments would probably be obliged to enter reservations . . . Neither of these solutions seemed very desirable, and he therefore appealed to representatives to seek the golden mean, and, if possible, by precept and example, to encourage others to withdraw their reservations at a later stage. If the Conference worked along those lines, he believed it might be possible to arrive at a just and effective instrument.125

With the benefit of hindsight, this strategy was extraordinarily wise.126 While Art. 17 has attracted many reservations, roughly 80 percent of state parties have accepted Art. 17 without qualification of any kind,127 with most reservations moreover fairly tightly conceived:128 only six states (Austria, Botswana, Burundi, Iran, Latvia, and Sierra Leone) maintain what amounts to a blanket reservation denying the applicability of the article as a whole.

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Statement of the President, Mr. Larsen of Denmark, UN Doc. A/CONF.2/SR.9, July 6, 1951, at 14. In response, the British representative to the Conference of Plenipotentiaries withdrew an amendment that would have constrained the scope of Art. 17, noting that “the aim of the Conference should be to frame as liberal a text as could be achieved in the light of practical possibilities”: Statement of Mr. Hoare of the United Kingdom, ibid. at 14–15. “[I]t would be better to incorporate in the convention a clause providing for a real improvement in refugees’ situation . . . even if that clause were to result in reservations, which, it might be hoped, would be neither very numerous [n]or extensive”: Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.13, Jan. 26, 1950, at 8. Weis has noted that “[a] number of States made reservations to Article 17. They either withdrew them later, however, or put its provisions into force in spite of the reservation. Thus, the provisions of Article 17 can today be regarded as the general standard as regards the right of refugees to engage in wage-earning employment”: P. Weis, The Refugee Convention, 1951: The Travaux Préparatoires Analysed with a Commentary by Dr. Paul Weis (posthumously pub’d., 1995) (Weis, Travaux), at 149. Specifically, only 33 of the 148 state parties maintain any reservation or qualification with respect to Art. 17: see text of reservations and declarations of state parties available at https://treaties.un.org, accessed Dec. 21, 2020. This fact bears out the intuition of the drafters that a simple cost–benefit analysis would prove the value of setting a relatively high standard. As the French delegate to the Ad Hoc Committee put it, “[i]f it was thought that ‘x’ States would accede and that ‘x-2’ States would express reservations . . . it would be preferable to modify [the article]. If, on the other hand, the majority of states would accept article [17] . . . without any reservations, it would make sense to retain the article”: Statement of Mr. Juvigny of France, UN Doc. E/AC.32/SR.37, Aug. 16, 1950, at 14. This tendency to enter fairly specific reservations was predicted by the American representative to the Ad Hoc Committee, who observed that “an article to which all or most countries made reservations would be pointless. However, if only some countries, even four or five, made reservations, those reservations would not all be equal in their nature and scope”: Statement of Mr. Henkin of the United States, ibid. at 15.

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Equally important, nine countries which originally constrained their acceptance of Art. 17 – Australia, Brazil, Denmark, Greece, Italy, Liechtenstein, Malta, Papua New Guinea, and Switzerland – have either withdrawn or significantly narrowed the scope of their reservations,129 just as the drafters hoped would occur. Because no new reservations can be made after a country has ratified the Convention,130 the decision to adopt a realistically high standard has resulted in what amounts to the strongest guarantee at the universal level of the right of any group of non-citizens to undertake employment. The duty to grant refugees work rights may be violated directly – as in the case of Cambodia’s decision to treat refugees simply as illegal immigrants not allowed to work at all,131 New Zealand’s rule that only one person in a given refugee family with temporary protected status may be issued a work visa,132 or the policy of Bangladesh133 and Ecuador134 not to issue refugees with the documentation needed to access legal employment. Art. 17 may also be breached indirectly, as by the refusal to allow refugees to leave camps in order to work in India135 and Sudan,136 or by the Egyptian137 and Zambian138 rules imposing a prohibitively expensive fee to secure the registration needed lawfully to approach employers. Nor does it make any substantive difference whether a denial of refugee work rights is implemented by action against refugees themselves or against those who would employ them139 – meaning that Iran’s policy of subjecting employers to 129

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See reservations and declarations of state parties, https://treaties.un.org, accessed Dec. 21, 2020. On Aug. 20, 2013, Papua New Guinea withdrew its reservation to Art. 17 in relation to refugees transferred to its territory by Australia – the overwhelming majority of its refugee population. It nonetheless maintains the reservation more generally. Refugee Convention, at Art. 42(1). This understanding was affirmed at the Conference of Plenipotentiaries: Statement of the President, Mr. Larsen of Denmark, UN Doc. A/ CONF.2/SR.9, July 6, 1951, at 13. See text at note 3. 132 See text at note 26. 133 See text at note 9. 135 136 See text at note 10. See text at note 6. See text at note 5. See text at note 8. See text at note 7. With regard to the duty of states to provide refugees with documentation of their identity and status, see Chapter 4.9. Nor may the failure to provide refugees with documentation be based on the refusal of refugees to comply with restrictions on internal freedom of movement, since the latter are presumptively invalid: see Chapter 5.2. The Committee on Economic, Social and Cultural Rights has taken view that states must provide refugees with documentation that is recognized as entitling them to work: “Concluding Observations on the Combined Second to Fourth Periodic Reports of the former Yugoslav Republic of Macedonia,” UN Doc. C/C.12/MKD/CO/2–4, July 15, 2016, at [21]; “Concluding Observations on the Sixth Periodic Report of Finland,” UN Doc. E/C.12/FIN/CO/6, Dec. 17, 2014, at [14]; and “Concluding Observations on the Combined Third and Fourth Periodic Reports of Jamaica,” UN Doc. E/C.12/JAM/CO/3–4, June 10, 2013, at [10]. “The first category may relate to measures taken by the authorities directly against the foreigner . . . The second group apparently deals with restrictions imposed on the employer: he may be prohibited from hiring foreigners, who are generally permitted to do the work in question, unless he can prove that no national is available for the position or he may be permitted to accept only a certain number or percentage of alien employees or only such who

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heavy fines and imprisonment for hiring Afghan refugees140 and Turkey’s rule that refugees cannot exceed more than 10 percent of a company’s workforce141 are at odds with Art. 17. Nor was the nature of the right of refugees to work fully appreciated when the Israeli Supreme Court determined that “the state’s interest to prevent ‘employment immigration’ should be considered” and that the government’s willingness to impose a moratorium on enforcement of sanctions against those employing refugees struck “a proper balance.”142 To the contrary, the impermissible chilling effect on work opportunities for refugees would clearly persist, even if sanctions would not be immediate.143 In substantive terms, the essence of the obligation to allow refugees to work, contained in the first paragraph of Art. 17, is “of a more categorical nature”144 than that found in any of the predecessor refugee conventions. While the drafters did not elaborate the scope of “wage-earning employment,” GrahlMadsen concludes that taking account of both the plain meaning of the term and the fact that self-employment and professional practice are the only types of work addressed elsewhere in the Convention,145 there can be no doubt that [the term “wage-earning employment”] must be understood in its broadest sense, so as to include all kinds of employment which cannot properly be described as self-employment, or [professional practice] . . . It . . . comprises employment as factory workers, farmhands, office workers, salesmen, domestics and any other kind of work the remuneration for which is in the form of a salary as opposed to

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are not engaged elsewhere. In order to cover all the possibilities, the authors of the Convention combined both cases of restrictions”: N. Robinson, Convention relating to the Status of Refugees: Its History, Contents and Interpretation (1953) (Robinson, History), at 115. See text at note 13. 141 See text at note 22. Kav LaOved v. The Government, Dec. No. 6312/10 (Isr. HCJ, Jan. 16, 2011). Eritrean and Sudanese refugees admitted to a “temporary protection regime” were lawfully staying in Israel (see Chapter 3.1.4 at note 203) and hence entitled to engage in employment under Art. 17. The “required balance” referenced by the Court is to be struck (in line with the intention of the drafters) by the delay in acquisition of refugee employment rights until lawful stay (or the three-year cutoff) is achieved. See generally Y. Livnat, “Israeli Supreme Court Rules: Taxation and Employment Restrictions on Employers of ‘Foreign Workers’ Apply to Employers of Asylum Seekers too,” reflaw.org, Oct. 2017. Indeed, it has been reported “that Interior Ministry officials have taken a number of steps to deter employers from hiring permit holders, including telling employers inquiring about whom they can hire that they may not hire any permit holders, visiting businesses and telling employers not to employ permit holders, and telling municipalities not to hire them”: Human Rights Watch, “‘Make Their Lives Miserable’: Israel’s Coercion of Eritrean and Sudanese Asylum Seekers to Leave Israel” (2014), at 76, citing Kav LaOved. Robinson, History, at 114. See Chapter 5.3 regarding the right to engage in self-employment, and Chapter 6.2 regarding the right to engage in professional practice.

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fees or profits. It seems reasonable to include waiters, salesmen and others who are remunerated to a greater or smaller extent in the form of tips, commissions or percentages; the crucial point is apparently whether they may be said to have an employer and are not free agents.146

In view of the breadth of this definition, Lebanon’s refusal to let Syrian refugees work in other than limited sectors147 is an example of a policy that is clearly in breach of Art. 17.148 The right of refugees freely to seek wage-earning employment is not, of course, tantamount to an entitlement of refugees to secure whatever employment they prefer. As Craven explains in the context of Art. 6 of the Economic Covenant, In theory, the concept of freely chosen employment extends to ensuring the fullest opportunity for each worker to use his or her skills in a suitable job. There is a possible tension here between absolute individual choice and the limited options that might be open to him or her in the employment market. It is not realistic to suggest, for example, that the State has to create work opportunities that correspond entirely to the wishes of individuals seeking work.149

As such, while policies such as those of Austria150 and Belgium151 that provide refugees with training to facilitate their access to the job market, or the subsidies paid to those who employ refugees by Denmark, Finland, and Sweden152 are commendable,153 the fact that refugees face linguistic, cultural, or other barriers to effective competition in the domestic labor market154 does not per se bespeak a violation of the Refugee Convention.155 On the other hand, the right freely to 146

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A. Grahl-Madsen, Commentary on the Refugee Convention 1951 (1963, pub’d. 1997) (Grahl-Madsen, Commentary), at 70. See also Robinson, History, at 114; and Weis, Travaux, at 147. See text at note 17. Concern has also been expressed by the Committee on Economic, Social and Cultural Rights that mobility restrictions may interfere with the ability of refugees to work, contrary to Art. 6 of the Covenant: “Concluding Observations on the Sixth Periodic Report of Cyprus,” UN Doc. E/C.12/CYP/CO/6, Oct. 28, 2016, at [15]; “Concluding Observations on the Combined Second and Third Periodic Reports of Tajikistan,” UN Doc. E/C.12/ TJK/CO/2–3, Mar. 25, 2015, at [15]. Craven, ICESCR Commentary, at 217–218. 150 See text at note 35. 151 Ibid. See text at note 34. It is, however, arguable that such initiatives may be required under Art. 6 of the Economic Covenant given the duty “to take steps” toward realization of the right to work for all by adoption and implementation of a strategy and plan of action, and to give particular attention to the needs of disadvantaged groups, including refugees. See text at note 79. See text at notes 31–32. Refugees may in some cases, however, be entitled to invoke the duty of non-discrimination, including in particular the responsibility of states to “guarantee to all persons equal and effective protection against discrimination on any ground,” in order to contest such exclusions: see Chapter 1.5.5. States also have a duty under Art. 6(2) of the Covenant progressively to take

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seek employment does mean that refugees must not face especially cumbersome procedures for accessing their work rights: Article 17 of the Convention . . . is essentially a requirement to grant refugees the unrestricted right to work . . . Yet . . . [US] withholding of removal status requires the periodic refiling of work applications . . . Because states parties are obliged to extend the most favorable treatment to refugees . . . the imposition of a more cumbersome work permit program for aliens in withholding of removal status who are seeking employment likely violates the spirit, if not the letter, of Article 17.156

Indeed, as noted by the Constitutional Court of South Africa in a case in which refugees confronted an administratively opaque and rigid procedure to access the right to work in the highly regulated security industry,157 the Authority must exercise a reasonable measure of flexibility. This will avoid a blanket exclusion of refugee applicants without properly weighing whether their employment is likely to frustrate the objects of the Security Act. Should the Authority fail to do so, it would be acting in a manner inconsistent with the power given to it.158

It follows that the Israeli system of requiring refugees to renew their work permits each month even as it closed most of the immigration offices with authority to process those renewals159 is not in compliance with Art. 17. The contingent standard by which enjoyment of the right to work is to be measured – namely “the most favourable treatment accorded to nationals of a foreign country in the same circumstances” – amounts to a particularly important advance over earlier treaties. To be sure, not all states felt it was appropriate to enfranchise refugees in the ranks of most-favored foreigners. Austria argued that “[t]he number of persons to whom the most favoured nation clause applies is as a rule relatively small. Since Austria has hundreds of thousands of refugees, their automatic inclusion in a most favoured nation clause . . . would make it impossible for Austria to conclude such agreements in the future.”160 On the other hand, Yugoslavia would have gone beyond the most-favored foreigner standard, advocating a national treatment contingent standard because “in most countries the number of refugees was smaller than the number of unemployed . . . [U]nless the

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affirmative steps within the bounds of their available resources to promote “full and productive employment” of all persons under their jurisdiction. Victor Garcia Garcia v. Attorney General, 856 F. 3d 27 (US CA1, May 3, 2017), per Stahl J. dissenting. See text at note 16. Union of Refugee Women v. Director of the Private Security Industry Regulatory Authority, Dec. No. CCT 39/06 (SA CC, Dec. 12, 2006), at [86]. See text at note 21. 160 United Nations, “Compilation of Comments,” at 43.

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former were accorded the freedom to seek employment on equal terms with the nationals of the country concerned, they would be unable to find work.”161 Each of these positions was rejected. While France congratulated the Yugoslav delegation for its “generous display of liberalism,”162 there was nearly universal consensus that it would be unrealistic to ask reception states to assimilate refugees to their own citizens for purposes of access to employment opportunities.163 Canada therefore “urged the Yugoslav representative not to press his amendment; otherwise the Conference would probably find itself involved in an endless discussion.”164 Even UNHCR argued against the more generous Yugoslav approach, insisting that “certain delegations would then be obliged to enter reservations to the entire article.”165 At the same time, however, there was surprisingly strong support for the view that unless refugees benefitted from at least most-favored-national treatment, Art. 17 would be of little practical value.166 In responding to a Belgian query whether the most-favored-national standard might not be too generous, the French representative was emphatic that no less could be granted to refugees: [I]t was legitimate and desirable to accord the most favourable treatment to refugees as regards the right to engage in wage-earning employment, and not only the treatment accorded to foreigners generally because refugees by their very nature were denied the support of their Governments and could not hope for governmental intervention in their favour in obtaining exceptions to the general rule by means of conventions. France was therefore merely being faithful to the spirit which had heretofore guided United Nations action in favour of refugees: the purpose of that action was to obtain for refugees the

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Statement of Mr. Makiedo of Yugoslavia, UN Doc. A/CONF.2/SR.9, July 6, 1951, at 15. Statement of Mr. Rochefort of France, ibid. at 10. For example, Norway “could not agree to put refugees on the same footing as its own nationals in respect of wage-earning employment”: Statement of Mr. Anker of Norway, ibid. at 13. The French reaction was more blunt, asserting that “[t]he Yugoslav amendment jeopardized the very existence of [the right to asylum], and did not therefore reflect a very realistic attitude”: Statement of Mr. Rochefort of France, ibid. at 10. Interestingly, Germany – which today maintains perhaps the least generous policy in Europe on the right of refugees to work – voiced the strongest support for the Yugoslav initiative, noting that a clause “similar in purport to the Yugoslav amendment had been incorporated in the legislation of the Federal Republic of Germany”: Statement of Mr. von Trutzschler of the Federal Republic of Germany, ibid. at 4. Statement of Mr. Chance of Canada, ibid. at 8. Statement of Mr. van Heuven Goedhart of UNHCR, ibid. at 12. The Yugoslav amendment was soundly defeated on a 16–1 (4 abstentions) vote: ibid. at 16. “[I]f the Committee merely granted to refugees the treatment granted to foreigners generally, it would actually bring about no improvement in their lot because it was impossible to give them less than that general treatment”: Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.13, Jan. 26, 1950, at 3.

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advantages which Governments sought to have granted to their own subjects.167

In the end, even those countries that were uncomfortable with the higher contingent standard were persuaded to accept it, and to make whatever reservation was deemed necessary to accommodate their particular national circumstances. Belgium, for example, “considered the right to work as one of the fundamental rights to be accorded to refugees and, despite the amount of unemployment in Belgium, it accepted article [17].”168 The drafting history therefore leaves no room for doubt that the mostfavored-national standard is intended to secure for refugees the same right to seek employment as is enjoyed by the nationals of states with which the host country has a regional economic or customs union,169 or other special form of association.170 As Grahl-Madsen concluded, If a country concludes an international agreement, passes a law or institutes a practice, whereby nationals of a certain foreign State are entitled to an especially favourable treatment with regard to wage-earning employment, refugees shall be entitled to the same treatment. It does not matter if there are special ties between the two States, as long as they both are States in the eyes of international law.171 167 168

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Statement of Mr. Rain of France, ibid. at 2–3. Statement of Mr. Herment of Belgium, UN Doc. E/AC.32/SR.37, Aug. 16, 1950, at 16. See also Statement of Mr. Anker of Norway, UN Doc. A/CONF.2/SR.9, July 6, 1951, at 13, in which he indicated “that Norway accepted the principle [of most-favored-national treatment] laid down in article [17] of the draft Convention. It could do so all the more readily in that its labour legislation granted refugees more favourable treatment than aliens in general.” The South African Constitutional Court has, however, determined that Art. 17’s contingent standard does not require the assimilation of refugees to those holding permanent resident status: Union of Refugee Women v. Director of the Private Security Industry Regulatory Authority, Dec. No. CCT 39/06 (SA CC, Dec. 12, 2006), at [65]. Consensus on this point is particularly clear from the fact that during the drafting process, Belgium, Norway, and Sweden all expressed their intention to enter reservations to protect their special regional arrangements from the language of Art. 17: Statements of Mr. Herment of Belgium, UN Doc. E/AC.32/SR.37, Aug. 16, 1950, at 16 (“[H]e would, however, like to express a reservation relating to countries members of a regional union”), and UN Doc. A/ CONF.2/SR.9, July 6, 1951, at 8 (“However, the Belgian delegation would have to enter reservations in respect of paragraph 1 of that article in view of the economic and customs agreements between Belgium and certain neighbouring countries”); Statement of Mr. Petren of Sweden, ibid. at 6 (Sweden “could not undertake to extend to refugees the preferential treatment granted to nationals of other Scandinavian countries under existing special treaties”); and Statement of Mr. Anker of Norway, ibid. at 14 (“He desired to associate himself with the statements made by the Swedish and Danish representatives on the regional policy of the Scandinavian countries in respect of the labour market. Accordingly, he would be compelled to enter reservations on article [17] when the Convention was signed”). Grahl-Madsen, Commentary, at 70. See also Robinson, History, at 109–110: “Most favorable treatment includes also rights granted under bilateral or multilateral conventions whether on the basis of specific conventional provisions or on that of the ‘most favored nation’ clause. This

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The import of the Art. 17 duty is clear from the fact that a significant number of countries have entered reservations to avoid the duty to grant refugees the same right to work as the citizens of partner states: in addition to six countries which grant refugees only the same employment rights as aliens generally,172 a further sixteen have accepted the general standard but denied refugees work benefits associated with particular customs, economic, or political unions.173 It follows, therefore, that all state parties that are members of the European Union – excepting only Austria and Latvia (which have entered a blanket reservation to Art. 17), and Belgium, Luxembourg, and the Netherlands (which have entered a relevant reservation)174 – must grant refugees lawfully staying in their territory the same access to employment as is provided to citizens of other European Union countries.175 This requirement does not impact the position of refugees awaiting status verification (who are in most cases merely lawfully present,176 not yet lawfully staying), meaning that Germany’s former policy that preference in employment was to be given to nationals and others with residence permits over refugee claimants177 was not in breach of the Convention. But Art. 17 does govern the entitlement of refugees present on an ongoing basis, including both those recognized as refugees and those admitted to a temporary protection regime. While this duty is respected by the provisions of the European Union’s Qualification Directive with respect to recognized refugees,178 the rule in the

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was made clear by the Belgian representative, who proclaimed that his country would have to enter a reservation to [Art. 17] in view of the economic and customs agreements existing between Belgium and certain neighboring countries”; and Weis, Travaux, at 129–130: “Most favourable treatment means the best treatment which is accorded to nationals of another country by treaty or usage. It also includes rights granted under bilateral or multilateral treaties on the basis of special provisions or the ‘most favoured nation’ clause.” The six countries are the Bahamas, Ireland, Malawi, Mexico, Zambia, and Zimbabwe: see reservations and declarations of state parties, https://treaties.un.org, accessed Dec. 21, 2020. Because of this reservation, the legislation of Zimbabwe (see text at note 14), which grants refugees only the same right to work as enjoyed by aliens generally, is not in violation of the Convention. These countries are Angola, Belgium, Brazil, Burundi, Cabo Verde, Denmark, Finland, Iran, Luxembourg, Netherlands, Norway, Portugal, Spain, Sweden, Uganda, and Venezuela: see reservations and declarations of state parties, https://treaties.un.org, accessed Dec. 21, 2020. None of the reservations entered by other EU states to preserve privileges granted to citizens of special partner states (Denmark, Finland, Norway, Portugal, Spain, and Sweden) purports to deny to refugees the special privileges afforded the citizens of EU states; all are rather of a more limited character: see reservations and declarations of state parties, https://treaties.un.org, accessed Dec. 21, 2020. The same position is adopted by Edwards, “Article 17,” at 966, who notes that in addition to the duty of EU states to treat refugees on par with EU nationals, “similar arguments can be made in relation to other regional treaties, such as ECOWAS.” See Chapter 3.1.3 at note 129 ff. 177 See text at note 30. EU Qualification Directive (2011), at Art. 26(1). Indeed, under the EU Reception Directive (2013), at Art. 15(1), “Member States shall ensure that applicants have access to the labour market no later than 9 months from the date when the application for international

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EU’s Temporary Protection Directive allowing the right to work of refugees admitted to a temporary protection regime to be subordinated to the claims of European Union and European Economic Area citizens, as well as to those of legally resident third-country nationals,179 is in breach of the Refugee Convention. Once a refugee is lawfully staying, he or she must be treated on par with the citizens of most-favored states, not ranked hierarchically after them – a duty recognized, for example, by the work permit rules of the Australian temporary protection system.180 Importantly, though, because the contingent standard for the right to work is framed not simply as most-favored-national treatment, but rather as “the most favourable treatment accorded to nationals of a foreign country in the same circumstances [emphasis added],” refugees must generally qualify for the right to work in the same way as do most-favored non-citizens, unless the general requirements are effectively insurmountable for refugees because of the uniqueness of their circumstances.181 It was logically suggested, for example, that this language means that a refugee may not legitimately refuse to comply with the terms of a resettlement program182 under which the beneficiary (whether a refugee, or simply an immigrant) agrees to undertake particular employment for a period of years in the host country in return for preferential admission, transportation assistance, or comparable immigration benefits.183 (The drafters did, however,

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protection was lodged if a first instance decision by the competent authority has not been taken and the delay cannot be attributed to the applicant.” EU Temporary Protection Directive (2001), at Art. 12. 180 See text at note 25. See generally Chapter 3.2.3. “IRO had concluded agreements with certain countries of reception providing for a mass influx of refugees into those countries under a special scheme for manpower recruitment. Those agreements stipulated that after completion of their original contracts, refugees would be entitled to the same conditions as nationals as regards the right to engage in wage-earning employment”: Statement of Mr. Weis of the IRO, UN Doc. E/AC.32/SR.13, Jan. 26, 1950, at 3–4. At the Conference of Plenipotentiaries, the Australian representative expressed grave concerns regarding his country’s ability to enforce the terms of labor restrictions under resettlement agreements if Art. 17 were adopted. “He also had his doubts about the words ‘in the same circumstances’ in the third line of paragraph 1, and in that connexion, recalled his earlier statement regarding Australia’s position as a country of immigration . . . Australia’s aim was to assimilate the refugees within its territory, but its immigration scheme provided for labour contracts for certain types of migrants . . . It had been asserted by some representatives that the Australian delegation’s reservations would be covered by the words ‘in the same circumstances,’ those words being taken to mean that refugees should have the same treatment as other aliens in the same circumstances, in the sense that the refugees would have to satisfy the requirements prescribed for nationals of foreign States resident in Australia”: Statement of Mr. Shaw of Australia, UN Doc. A/CONF.2/ SR.9, July 6, 1951, at 11. Indeed, because a refugee who is admitted under an immigrationstyle relocation scheme (often providing affirmative assistance to travel and becoming reestablished) is in essentially the same position as an immigrant in receipt of the same benefits, it is not unreasonable to treat the immigrant and the refugee comparably.

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incorporate language in Art. 17(3) which affirms their hope that at least upon conclusion of the period of assigned work, refugees admitted under immigration-based schemes would be assimilated to citizens for purposes of access to the full range of employment opportunities.)184 More generally, the “in the same circumstances” language of Art. 17(1) easily accommodates the concerns of some states that refugees should obtain work permits, or otherwise satisfy routine administrative requirements for the employment of non-citizens.185 But it is otherwise where, as in the case of Tanzania186 and Egypt,187 the exorbitant fee imposed to secure a work permit amounts to a de facto bar on access to work by virtually all refugees. The duty under Art. 6 to exempt refugees from insurmountable requirements applies in such a case,188 meaning that refugees must receive administrative dispensation sufficient to offset the disadvantages they face in meeting the requirement to secure a work permit.189 For the same reason, Portugal’s failure to devise alternatives for adult refugees to its rules requiring non-citizens to provide certification of educational and 184

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The representative of the International Refugee Organization expressed his desire to see “a clause in the convention safeguarding [the] position in the future” of “refugees in special categories which fell within the framework of plans for the recruiting of foreign manpower and of immigration plans”: Statement of Mr. Weis of the IRO, UN Doc. E/AC.32/SR.13, Jan. 26, 1950, at 9–10. Specifically, he had sought to ensure that once the terms of the labor contract were completed, refugees would automatically receive the same right to compete for jobs as citizens: ibid. at 4. The French representative was among those who felt such a rigid prescription “would go beyond the intentions of his Government”: Statement of Mr. Rain of France, ibid. at 4. Thus, the American delegate proposed a middle ground position under which states would agree simply to give “favourable consideration” to the assimilation of refugees who had honored the terms of their immigration contracts to nationals for purposes of work: Statement of Mr. Henkin of the United States, ibid. at 5. Paragraph 3 of Art. 17 was drafted by the US representative, and requires that “sympathetic consideration” be given to granting national treatment to refugees, “in particular . . . those refugees who have entered their territory pursuant to programmes of labour recruitment or under immigration schemes.” In general international human rights law as well, “[i]t is readily accepted that foreign workers may be required to obtain special authorizations (or permits) in order to be able to work”: Craven, ICESCR Commentary, at 213. Interestingly, several states – Malawi, Mexico, Mozambique, Sweden, Zambia, and Zimbabwe – nonetheless felt it necessary to enter a reservation to Art. 17 of the Refugee Convention to safeguard their right to require refugees to secure a work permit: see reservations and declarations of state parties, https:// treaties.un.org, accessed Dec. 21, 2020. Because these reservations do not indicate an intention to deviate from the substantive requirements of Art. 17, they should be interpreted simply to require refugees to comply with the state’s administrative requirements. That is, the reservations cannot be relied upon as a means of indirectly avoiding the substantive obligations set by Art. 17, absent specific words to that effect. See text at note 8. See text at note 7. Zambia has, however, entered a reservation to duties under Art. 17. See generally Chapter 3.2.3. See also Edwards, “Article 17,” at 966. Zambia’s justification for its policy – namely, as a means of “pushing back” refugees – may also be a basis for challenging the policy as an indirect tool of refoulement. See Chapter 4.1.2 .

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employment qualifications from their home country190 is at odds with this contingent standard.191 The right to be assimilated to most-favored non-citizens as regards a broadranging right to seek wage-earning employment is not, however, immediate. Rather, it inheres only in refugees once they are “lawfully staying” in the host country. At one point during the Convention’s drafting it had been agreed that a lower level of attachment – simply being “lawfully in” a state party – ought to suffice to have access to employment.192 But in keeping with the general decision to translate rights defined in the French text to inhere in refugees “résidant régulièrement”193 as requiring “lawful stay,”194 the text as finally adopted requires a refugee to show de facto ongoing residence in a state (whether or not domicile or a right of permanent residence has been acquired) before claiming Art. 17(1) rights.195 Thus, the President of the Conference of Plenipotentiaries accurately concluded that a refugee temporarily visiting a country “should not be accorded the right to engage in wage-earning employment to any greater extent than other aliens.”196 An important contemporary concern addressed by this level of attachment is the perceived need to deter the filing of unfounded refugee claims in order simply to gain access, albeit only provisionally, to employment opportunities in the host country. As the English Court of Appeal has noted, “[p]art of the purpose of immigration policy is to exclude economic migrants: the removal of the restriction upon the right to work merely because someone has claimed asylum would jeopardize that policy.”197 Because the right to undertake wageearning employment does not ordinarily inhere in persons who have simply claimed refugee status, a failure immediately to authorize refugees to work

190 191

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See text at note 31. This practice also raises issues of compliance with the duties under Art. 25: see Chapter 4.10. “Report of the Ad Hoc Committee on Statelessness and Related Problems,” UN Doc. E/ 1618, Feb. 17, 1950 (Ad Hoc Committee, “First Session Report”), at Annex I. “[I]n the first paragraph of the French text, the expression ‘refugiés résidant habituellement’ should be replaced by the phrase already accepted: ‘refugiés résidant régulièrement’”: Statement of Mr. Cuvelier of Belgium, UN Doc. E/AC.32/SR.13, Jan. 26, 1950, at 10. See Chapter 3.1.4 at note 195. 195 Ibid. at note 197. Statement of the President, Mr. Larsen of Denmark, UN Doc. A/CONF.2/SR.9, July 6, 1951, at 14. Secretary of State for the Home Department v. Jammeh, [1999] Imm AR 1 (Eng. CA, July 30, 1998). The same decision less accurately suggests the lawfulness of withholding the right to work until “status has been established.” Art. 17 of the Refugee Convention requires simply that a refugee be “lawfully staying” in the state party in order to acquire the right to work. While a person recognized as a refugee clearly meets this standard, a refugee may also be lawfully staying in some circumstances prior to formal recognition of refugee status. See Chapter 3.1.4.

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while undergoing refugee status verification (assuming those procedures are not unduly prolonged)198 is not in breach of the Convention.199 There are, however, some circumstances in which even refugees not yet lawfully staying in a state party may claim a right of exemption from a critical subset of the limits imposed by many states on the employment of noncitizens. Indeed, these specific exemptions may be of value to refugees lawfully staying in a country where even most-favored nationals face real constraints on access to wage-earning employment.200 Under Art. 17(2), refugees in any of four situations described below – whether or not they are also “lawfully staying” in the host state – must not be subjected to “restrictive measures . . . for the protection of the national labour market.” In general terms, the grounds for entitlement to invoke Art. 17(2) identify “refugees who ha[ve] already established some ties with a country.”201 First and most straightforward, the opening clause of Art. 17(2) makes clear that refugees who already enjoyed exemption from labor restrictions in the host state before the Convention entered into force continued to benefit from such exemption.202 Second and of greater contemporary relevance, any refugee who has been “resident” in a host state for three years,203 even if it cannot yet be said that he or she is 198

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The Committee on Economic, Social and Cultural Rights seems to have set one year as the presumptive maximum time that an asylum-seeker’s ability to work may be delayed: “Concluding Obervations on the Combined Third to Fifth Periodic Reports of Romania,” UN Doc. E/C.12/ROU/CO/3–5, Dec. 9, 2014, at [12]; “Concluding Observations on the Combined Fourth and Fifth Reports of Bulgaria,” UN Doc. E/C.12/ BGR/CO/4–5, Dec. 11, 2012, at [9]; “Concluding Observations of the Committee on Economic, Social and Cultural Rights: Slovakia,” UN Doc. E/C.12/SVK/CO/2, June 8, 2012, at [13]. If, however, these procedures do not result in a decision within three years, there is nonetheless a duty under Art. 17(2)(a) to provide at least exemption from labor-marketbased restrictions on access to employment. See text at note 203. Under general human rights law, there may be an implied duty to grant access to work at an earlier time unless the necessities of life are otherwise provided to the refugee: see Chapter 4.4. Arts. 17(1) and 17(2) are not, in other words, alternative provisions. A refugee who is lawfully staying in a state party and therefore entitled to the benefit of Art. 17(1) may also claim rights under Art. 17(2). Conversely, a refugee who has met one of the conditions for relief from labor-market-based employment restrictions under Art. 17(2) also acquires rights under Art. 17(1) at such time as he or she is lawfully staying in the country. Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.37, Aug. 16, 1950, at 12. As Robinson explains, “the purpose of this provision is to bind the Contracting States to continue applying . . . favourable treatment”: Robinson, History, at 115. As originally framed, Art. 17(2)(a) required “at least” three years’ residence: France, “Draft Convention,” at 6. The text was amended by France at the suggestion of the representative of the IRO, who feared that “the expression ‘at least’ might lead to misunderstanding. It might be understood to mean that what was involved was a period of undetermined duration that was, however, in excess of three years”: Statement of Mr. Weis of the IRO, UN Doc. E/AC.32/SR.13, Jan. 26, 1950, at 3. The French representative “saw no objection to the deletion of the expression ‘at least,’ if its retention might lead to debate”: Statement

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lawfully staying there, is entitled to exemption from labor-market-based restrictions. Because the term “residence” is used in the Convention to refer to de facto ongoing presence rather than to legal notions such as the establishment of domicile,204 time spent in the reception state since the lodging of an application for refugee status verification should be understood to count toward satisfaction of the three-year threshold.205 So conceived, Art. 17(2) provides an important safeguard for refugees: while it may offer less protection than the most-favorednational treatment which refugees lawfully staying receive under Art. 17(1),206 Art. 17(2) rights at least accrue both automatically and at an earlier stage (even if provisionally),207 thereby mitigating to some extent the hardship which can follow when status assessment procedures are prolonged. The European Union’s Qualification Directive allowing persons awaiting the results of a refugee status determination procedure the right to work after having lived in the asylum state for nine months208 reflects a commitment to the purpose advanced by Art. 17(2)(a), and implements it at an earlier time than the Refugee Convention requires – albeit regrettably with less than complete respect for the other rules of Art. 17(2).209

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of Mr. Rain of France, ibid. On the basis of this exchange, it is clear that states have no discretion to prolong the three-year delay set by Art. 17(2)(a). “It seems that the term ‘residence’ must be interpreted as liberally as possible, so as to include anyone who has been physically present in the country for a period of three years, irrespective of whether his presence has been lawful or not. The period of residence will not be interrupted by short periods spent in traveling or visiting other countries”: GrahlMadsen, Commentary, at 72. Weis takes a similarly broad approach, arguing that “[t]he term ‘residence’ . . . is not qualified and might, therefore, include residence which may have been illegal for a certain time but which was subsequently legalized; short absences should not be taken into account”: Weis, Travaux, at 148. See Chapter 3.1.4 at note 196. The same view is taken in Edwards, “Article 17,” at 969. For example, “the consensus is that other restrictions – for national security, for example – are permitted” under Art. 17(2): Mathew, Asylum and Employment, at 90. Had the drafters intended that all constraints on the right to work be prohibited in the circumstances described they would surely not have framed the duty as specifically requiring exemption from restrictive measures imposed “for the protection of the national labour market.” While the words of a treaty may not be read in isolation from context, object and purpose, neither may they simply be read away. As noted by the Supreme Court of the United Kingdom, “the starting point of the construction exercise should be the text of the Convention itself . . . There is no want of good faith if the Convention is interpreted as meaning what it says and the contracting states decline to do something that its language does not require them to do”: R (ST, Eritrea) v. Secretary of State for the Home Department, [2012] UKSC 12 (UK SC, Mar. 21, 2012), at [30]–[31]. See generally Chapter 2.1. In contrast, lawful stay is most commonly associated with status recognition in countries with a formal recognition process: see Chapter 3.1.4. See text at notes 23–24. There are, however, two concerns with the approach adopted by the European Union. First, as described below, no provision is made for earlier access to the right to work required by paras. (b) and (c) of Art. 17(2): see text at note 210 ff. Second, to the extent that a given refugee is entitled to the benefit of any part of Art. 17(2), the European Union standard unlawfully makes access by refugees subordinate to that afforded European

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Significantly greater debate was elicited in regard to the third and fourth exceptions, contained in paragraphs (b) and (c) of Art. 17(2). Under Art. 17(2)(b), a refugee who is married to a citizen of the host country is immediately entitled to relief from employment restrictions based on labor market considerations. There was little support for the view that an immediate exemption should be withheld unless the refugee automatically acquires the host state’s nationality by marriage.210 To the contrary, the dominant view was that the fact of marriage was itself a sufficient pragmatic basis for exemption, since it clearly showed that the refugee had “some roots in the country, whatever might be the basis of these roots under the nationality laws of that country.”211 The only limitation, reflected in the explicit caveat to Art. 17(2)(b), is that abandonment of the citizen spouse deprives a refugee of the benefit of this provision. An effort was made to authorize the withdrawal of Art. 17(2)(b) benefits also for violation of family obligations falling short of abandonment,212 but the complexity of defining the relevant circumstances with precision appears to have led the drafters to forsake that effort.213 Thus, the best view is that a refugee may rely on Art. 17(2)(b) even if he or she does not in fact cohabit with his or her spouse.214 Indeed, taking account of the recognition that the clause should not

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citizens and long-term residents. The freedom from “restrictive measures imposed on aliens” set by Art. 17(2) is framed in general terms, not simply as freedom from restrictive measures imposed on “all but most favored” non-citizens. This concern was raised by the Chinese representative, who objected to Art. 17(2)(b) on the grounds that “China applied the jus sanguinis [principle] . . . under which the nationality of the spouse was not changed by marriage. There was, therefore, no reason in law to favour a refugee who married a person of Chinese nationality”: Statement of Mr. Cha of China, UN Doc. E/AC.32/SR.13, Jan. 26, 1950, at 8. Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.37, Aug. 16, 1950, at 13. The Belgian representative to the Conference of Plenipotentiaries “said that it was known that marriages were at times contracted solely with a view to securing certain advantages. It would be paradoxical if a refugee was able to benefit from his marital status without observing his marital obligations”: Statement of Mr. Herment of Belgium, UN Doc. A/ CONF.2/SR.9, July 6, 1951, at 17–18. The precise form of the Belgian amendment was rephrased by the French representative to focus on either abandonment or failure “to honour their family obligations”: Statement of Mr. Rochefort of France, ibid. at 18, and adopted by the Conference on a 6–5 (9 abstentions) vote “subject to appropriate drafting changes by the Style Committee”: ibid. As finally presented and adopted, however, the text of Art. 17(2)(b) refers only to abandonment. The remarks of the British representative make clear the difficulty of a complete definition of the circumstances in which Art. 17(2)(b) benefits should be withdrawn. “The French representative’s attempt to improve on the Belgian amendment raised difficulties of its own. For example, a refugee might not abandon his wife, but he might treat her with such cruelty that she was forced to leave him . . . It would be extremely difficult to allow for all possible contingencies”: Statement of Mr. Hoare of the United Kingdom, ibid. at 17. Belgium took the view that “a stipulation obviously had to be made that, in order to be exempt from the application of the restrictions imposed on aliens, the refugee must reside with the spouse . . . on whose account he or she enjoyed that exemption”: Statement of Mr. Herment of Belgium, ibid. at 8. But he later withdrew this suggestion on the basis of

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be interpreted so as to deprive the citizen spouse of practical access to support payments ordered by a court upon marital breakdown,215 it makes sense to embrace Grahl-Madsen’s view that a refugee who is separated (but not yet divorced) may also rely upon Art. 17(2)(b).216 As he suggests, a purposive understanding of the notion of abandonment should focus on “whether there is still a community of interests between [the refugee and his or her spouse] e.g. that the refugee supports the spouse.”217 More generally, “principles of non-discrimination could narrow the interpretation given to this provision so as to avoid situations of destitution, dependency, or women remaining in violent relationships.”218 Finally, Art. 17(2)(c) allows the parent of a child who is a citizen of the host country also to claim exemption from labor-market-based employment restrictions. Opposition to this clause came primarily219 from the United Kingdom, which initially opposed the rule on the grounds that it would result in “capricious discrimination”220 in countries where nationality is acquired in accordance with the principle of jus soli. Because a refugee’s child born on the territory of such a state would automatically be a citizen, whereas a child born to the same parents before arrival in the host state would not, clause (c) would “favour[] those who had children born after their arrival.”221 Yet as the delegate from the United States (also

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the French delegate’s comment that “[i]t might be physically impossible for the refugee to reside with his wife, in which case the wording of the Belgian amendment, if adopted, would be unfair to him”: Statement of Mr. Rochefort of France, ibid. at 16. Most obviously, for example, the refugee might be able to secure employment only by living apart from his or her spouse for some or much of the time; it would defeat the purpose of Art. 17(2)(b) were the refugee to be prevented from supporting his or her family in such circumstances. “Moreover, if the wife were able to obtain from the courts a maintenance order against her husband, it would clearly be desirable that the husband should continue to enjoy rights in relation to employment so as to be able to support her”: Statement of Mr. Hoare of the United Kingdom, ibid. at 17. “[A] refugee may invoke Article 17(2)(b) if he is married to a national of the country concerned, also if they live apart, and even if they are factually or legally separated; but not after a divorce, for in that case he (she) has no spouse any longer”: Grahl-Madsen, Commentary, at 73. Ibid. 218 Edwards, “Article 17,” at 970. China also opposed the clause, though probably not for sound reasons. “With regard to children, only those who were born of a Chinese mother or father became Chinese. It was therefore unlikely that sub-paragraph (c) would be applied frequently in [China] and the Chinese Government could not be expected to alter its legislation on nationality merely to improve the situation of refugees. The Chinese delegation would therefore find it hard to accept [clause (c)]”: Statement of Mr. Cha of China, UN Doc. E/AC.32/SR.13, Jan. 26, 1950, at 8. This intervention suggests that the Chinese representative really did not understand the purport of Art. 17(2)(c) since, if the children of a refugee did not in fact acquire Chinese citizenship under its laws, the refugee parent would receive no exemption from employment restrictions. Statement of Sir Leslie Brass of the United Kingdom, ibid. at 6. 221 Ibid.

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a jus soli state) countered, the preferred treatment was logical because the bond of citizenship gave rise to a greater attachment between at least part of the refugee family and the host country.222 This led the British representative to adopt a somewhat different (and arguably more candid) tack. He expressed his worry that refugees might exploit Art. 17(2)(c) by timing their arrival in the United Kingdom to coincide with the birth of a child, thereby indirectly securing immediate access to the labor market.223 The Danish chairman provocatively “wondered whether that was the fault of the draft Convention or of jus soli,”224 and suggested that such concerns should logically be addressed by reservation225 (a position ultimately accepted by the United Kingdom). But the American representative was adamant in defense of the principled logic of allowing the refugee parent of a child citizen to avoid labor market restrictions: “The capriciousness of the provision in question . . . was not as real as it might appear . . . [I]t was clearly in the national interest that the mother of a citizen of the country should have some means of sustenance.”226 The British effort to delete clause (c) was thereupon defeated in the Ad Hoc Committee.227 Despite efforts by the United Kingdom again to press its concerns at the Conference of Plenipotentiaries,228 clause (c) was maintained – meaning, for example, that Japan’s failure to provide for the issuance of work authorizations to refugee claimants with Japanese-born children229 is in breach of Art. 17(2). 222

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Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.37, Aug. 16, 1950, at 13. “A case which had arisen recently would answer the question of the United States representative. A woman who had come to the United Kingdom with a permit to engage in one particular sort of employment had given birth to a child two days after arrival. If the United Kingdom accepted article [17] with no reservations, such a woman would be free of all the restrictions imposed by her work permit since her child would be a citizen of the United Kingdom. That was why it was fair to say that in countries whose nationality laws were based on jus soli the principle in paragraph 2(c) would operate very oddly”: Statement of Sir Leslie Brass of the United Kingdom, ibid. at 15. He later continued that “[i]t was hardly necessary to point out that to relieve a woman, who entered the country and later gave birth to a child, of all restrictions with regard to employment might be an inducement to such conduct”: ibid. at 17. Yet as the Belgian representative immediately noted, it was doubtful that “the example quoted by the United Kingdom was well chosen. The lady in question had a labour contract and, after the birth of her child, the authorities might have insisted on the contract being respected”: Statement of Mr. Herment of Belgium, ibid. at 16. This is clearly right: See text at note 182. Statement of the Chairman, Mr. Larsen of Denmark, ibid. at 15. 225 Ibid. at 16. Statement of Mr. Henkin of the United States, ibid. at 17. 227 Ibid. at 19. “Although he recognized that the purpose of sub-paragraph 2(c) was to ensure that a refugee with a family, who was firmly established in his country of refuge, should be accorded his due rights, he could not accept the arbitrary conditions stipulated in that subparagraph”: Statement of Mr. Hoare of the United Kingdom, UN Doc. A/CONF.2/SR.9, July 6, 1951, at 5. The United Kingdom has, however, entered and maintained a reservation to Art. 17(2)(c): https://treaties.un.org, accessed Dec. 21, 2020. See text at note 20.

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The scope of the provision was moreover clarified in response to a suggestion from the President of the Conference that he assumed that Art. 17(2)(c) “covered illegitimate as well as legitimate children, in view of the provisions contained in Article 25(2) of the Universal Declaration of Human Rights.”230 While the Israeli representative believed that absent an amendment only the parents of children born in wedlock would be covered by Art. 17(2)(c),231 the majority of representatives appear to have been persuaded by the French delegate’s assurance “that the existing text of the sub-paragraph was satisfactory. It would be difficult to make it clearer.”232 This seems clearly to be correct, since the ordinary meaning of “children” is not limited to the offspring of a married couple. Where a refugee meets the requirements of any of these exceptions – he or she has been present in the asylum state for at least three years, or has a spouse or children with the host state’s nationality – “restrictive measures imposed on aliens or the employment of aliens for the protection of the national labour market” are prohibited, whether or not the refugee in question is also lawfully staying in the state party.233 The European Union’s Reception Directive, in contrast, makes no provision for more immediate access to work by the 230

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Statement of the President, Mr. Larsen of Denmark, UN Doc. A/CONF.2/SR.9, July 6, 1951, at 15. The relevant part of the Universal Declaration provides that “[a]ll children, whether born in or out of wedlock, shall enjoy the same social protection”: Universal Declaration of Human Rights, UNGA Res. 217A(III), Dec. 10, 1948 (Universal Declaration), at Art. 25(2). “[A]s sub-paragraph 2(c) opened with the word ‘He’ it could only apply to legitimate children. He would suggest that if the intention was that the provision should be applicable to illegitimate children as well, the words ‘or she’ should be inserted after the word ‘He’ in this particular case”: Statement of Mr. Robinson of Israel, UN Doc. A/CONF.2/SR.9, July 6, 1951, at 15. The implication seems to be that a man cannot have an “illegitimate” child. As a factual matter, this is clearly not true. If, on the other hand, this position is taken because the father of a child born out of wedlock has no parental rights, then the argument is anachronistic. Statement of Mr. Rochefort of France, ibid. As the French drafter acknowledged, Art. 17(2) meant that France could not lawfully subject all refugees to its system of issuing restricted work authorizations based on labor market conditions in particular fields. “If article [17] remained as it stood, France would be obliged to enter a reservation to . . . part of paragraph 2 . . . [Its domestic law], enacted in 1932 in view of the economic situation, and in 1946 in order to regulate the labour market, did not have the effect of denying refugees the right to work . . . All [France] desired was to be able to control the movement of labour, and the refusal to permit a refugee to take employment in any overcrowded branch of activity in which there were already thousands of French subjects unemployed”: Statement of Mr. Juvigny of France, UN Doc. E/AC.32/SR.37, Aug. 16, 1950, at 13–14. France did enter such a reservation, which it maintains: see reservations and declarations of state parties, https://treaties.un.org, accessed Dec. 21, 2020. Interestingly, though Venezuela suggested that it had a comparable system in place (Statement of Mr. Perez Perozo of Venezuela, UN Doc. E/AC.32/SR.37, Aug. 16, 1950, at 19), it did not enter a reservation to protect its domestic regime. Grahl-Madsen argues for an implied restriction on access to Art. 17(2)(c) exemption in the case of “a father, who has never made any attempt to support his illegitimate child, and [who may] never [have] shown any interest in it”: Grahl-Madsen,

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spouses and parents of host-country minor citizens, subjecting them to the usual delay of up to nine months, as well as subordinating their entitlement to work to that of European citizens and resident third-country nationals.234 On the other hand, as was the case for Art. 17(1), Art. 17(2) provides no relief against the duty to respect the terms of resettlement agreements;235 much less does it excuse refugees from compliance with restrictive measures that bind most-favored non-citizens or nationals.236 More generally, there is no exemption from measures which have a purpose other than the protection of national workers.237 As the French representative insisted, “the measures in question were the result of laws and regulations for the protection of the labour market. It was therefore only a question of restrictive measures to protect national labour against foreign competition. There could be no possible doubts on that point.”238 Grahl-Madsen concurs, observing that Art. 17(2) “only deals

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Commentary, at 73. But Grahl-Madsen’s conclusion fails to take account of the fact that para. (c), unlike para. (b), does not provide for the withdrawal of entitlement consequent to abandonment. While it would clearly be undesirable in policy terms for a father who provides no support to his citizen child to rely upon his status as father to secure exemption from employment restrictions, it is nonetheless difficult to find a textual basis for the approach suggested by Grahl-Madsen. Moreover, in view of the legal duty in most countries for the father of a child born out of wedlock to provide support for his child, application of GrahlMadsen’s interpretation might also defeat the ability of the child’s mother to secure access to the funds she requires in order to support the child. EU Reception Directive (2013), at Art. 15. “[T]he restrictions referred to in the second paragraph were certainly not those stipulated in agreements between certain countries and IRO. They were restrictions deriving from the domestic law of various countries”: Statement of Mr. Rain of France, UN Doc. E/AC.32/SR.13, Jan. 26, 1950, at 9. See also Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/ SR.37, Aug. 16, 1950, at 13; Statement of Mr. Herment of Belgium, ibid. at 16; and Weis, Travaux, at 148: “The preoccupation of Australia about refugees who had been admitted with a work contract obliging them to perform specific work for two years was not well-founded.” In response to concerns expressed by the United Kingdom regarding its right to apply measures imposed on its own citizens “in agreement with the employers and trade union organizations concerned . . . for the common good of the people” (Statement of Sir Leslie Brass of the United Kingdom, UN Doc. E/AC.32/SR.13, Jan. 26, 1950, at 5), the representative of the IRO was unambiguous. “[T]he French text was, in fact, identical with that of the Convention of 1933 which was designed to ensure equal treatment for refugees and nationals. At that time, no restrictive measures had been applied against refugees in the matter of employment. The situation had since changed and it was obvious that the text to be adopted should indicate that restrictive measures which were applicable in the case of nationals, applied equally to refugees”: Statement of Mr. Weis of the IRO, ibid. at 11. This is not to say that restrictions on the right to work for any other reason are valid. The policy of Côte d’Ivoire of taking away a refugee’s right to work if he or she moves without authorization is, for example, not valid because it is predicated on enforcement of an illegal constraint on internal freedom of movement: see Chapter 5.2. Statement of Mr. Rain of France, UN Doc. E/AC.32/SR.13, Jan. 26, 1950, at 11. See also Statements of Mr. Cuvelier of Belgium, Mr. Stolz of the American Federation of Labor, and Mr. Metall of the International Labor Organization: ibid. at 11–12. Indeed, the British representative proposed a more direct formulation of the purpose of Art. 17(2), namely to

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with measures for the protection of the national labour market. Measures which have another purpose, e.g. prohibition of employment of aliens in industries working for the national defence, based on considerations of national security, are not affected.”239 The last paragraph of Art. 17 – Art. 17(3) – requires the governments of state parties to “give sympathetic consideration to assimilating the rights of all refugees with regard to wage-earning employment to those of nationals [emphasis added].” It mandates a process of “sympathetic consideration” – in other words, a duty to consider the issue in good faith240 – which may, or may not, ultimately provide refugees with a full-fledged right to work.241 While the primary goal of Art. 17(3) as initially conceived was to provide some relief to refugees admitted under immigration schemes or labor contracts once the terms of their initial agreements are satisfied,242 its scope is not narrowly conceived. In light of the debates on Art. 17 taken as a whole, the third paragraph seems very much to be a principled recognition of the centrality of employment to the ability of refugees to reestablish their lives,243 which states regrettably felt unable fully to permit in the context of their own difficult domestic circumstances.

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ensure the “protection of national workers”: Statement of Sir Leslie Brass of the United Kingdom, ibid. at 12. Grahl-Madsen, Commentary, at 71. See also Edwards, “Article 17,” at 968, noting that “[r]estrictions that are not related to the protection of the national labour force, such as those reserving civil service positions for nationals on national security grounds, are not affected by this provision”; and Saul, ICESCR Commentary, at 288. The existence of a duty of good faith consideration is perhaps even more clear in the equally authoritative French-language text (“Les Etats Contractants envisageront avec bienveillance”). By way of analogy, the phrase “sympathetic consideration” governing the entry and sojourn of non-citizens in the investment treaty context is understood to require contracting states to “give favorable consideration to requests for entry” by the subjects of the treaties: J. Salacuse, The Law of Investment Treaties (2015), at 426. Significantly, para. 3 does not take the approach initially advocated in the SecretaryGeneral’s draft, under which state parties simply “reserve[d] the right to accord the treatment given to national wage-earners to specified categories of refugees”: SecretaryGeneral, “Memorandum,” at 34. Rather, as proposed by the American representative, it requires states to give favorable consideration to the assimilation of refugees to citizens for purposes of work, instead of just allowing them to do so: Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.13, Jan. 26, 1950, at 5. See text at note 182. Edwards sensibly suggests that “[t]oday, this provision ought to include refugees who are resettled under general refugee resettlement criteria as well as those admitted under non-refugee-specific criteria, such as humanitarian or other criteria”: Edwards, “Article 17,” at 971. See e.g. UNHCR Executive Committee Conclusion No. 104, “General Conclusion on Local Integration” (2005), at [(m)(ii)], calling on “all States hosting refugees to consider ways in which refugee employment and active participation in the economic life of the host country can be facilitated . . . with a view to identifying and removing, to the extent possible, existing obstacles to refugee employment; and, in this regard, affirms the relevance of the 1951 Convention in providing a framework for the creation of conditions conducive to the self-reliance of refugees.”

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As its terms make clear, however, Art. 17(3) does not impose a duty of result.244 There is in particular no basis for treating the restrictions set by Art. 17 for access to employment (including satisfaction of the requisite level of attachment and definition of access owed at a contingent standard) as “justified, on an exceptional basis only, according to severe financial or economic conditions equivalent to the post-Second World War environment as an implied term of Art. 17.”245 To the contrary, the duty under Art. 17 remains very much as codified and fairly interpreted by reference to accepted principles of treaty interpretation.246 Art. 17(3) nonetheless stands as a principled recognition that the constrained approach taken by the drafters to definition of the right of refugees to work was never promoted on grounds of lack of need or merit, but simply on the grounds that state parties could not do better by refugees without sacrificing their own critical national interests. When and if conditions allow, Art. 17(3) signals the commitment in principle of governments to allowing refugees both earlier and more complete access to the full range of wage-earning opportunities.

6.1.2 Fair Working Conditions Refugee Convention, Art. 24 Labour Legislation and Social Security 1. The Contracting States shall accord to refugees lawfully staying in their territory the same treatment as is accorded to nationals in respect of the following matters: 244

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Indeed, it was opposed by the Netherlands for precisely this reason. The Dutch representative to the Conference of Plenipotentiaries “considered that the provisions of paragraph 3 of article [17] constituted a recommendation to, rather than an obligation on, Contracting States. It was undesirable to make recommendations in a convention. It would therefore be desirable to relegate voeux [aspirations] and recommendations appearing in the draft Convention as it then stood to a separate draft resolution, which the Conference could adopt later when the instrument itself was signed”: Statement of Baron van Boetzelaer of the Netherlands, UN Doc. A/CONF.2/SR.9, July 6, 1951, at 15. Edwards, “Article 17,” at 967. In contrast, Edwards effectively deems the modern context of the Refugee Convention to trump its clear terms, concluding that “applying the 1951 Convention to its modern day circumstances, outside the context of exceptional economic hardship or particular situations that necessitate strict distinctions between nationals and non-nationals, it is arguable that the obligations of the 1951 Convention extend beyond a strict literal (and therefore historical) reading of the text [emphasis added]”: ibid. For reasons analyzed in detail in Chapter 2, this approach is not consistent with the rules of treaty interpretation. Edwards is on more solid ground when she suggests that “where a contracting State is a party to relevant human rights treaties, it is obliged to provide to refugees the enjoyment of those rights on most favourable terms” (ibid.), though the duty is simply to honor those rights in relation to refugees as to all others within the beneficiary class. Such additional obligations do not, of course, impact the nature of the Refugee Convention obligation.

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(a) In so far as such matters are governed by laws or regulations or are subject to the control of administrative authorities: remuneration, including family allowances where these form part of remuneration, hours of work, overtime arrangements, holidays with pay, restrictions on home work, minimum age of employment, apprenticeship and training, women’s work and the work of young persons, and the enjoyment of the benefits of collective bargaining. ... Economic, Social and Cultural Covenant, Art. 7 The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favourable conditions of work, which ensure, in particular: (a) remuneration which provides all workers, as a minimum, with: (i) fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work; (ii) a decent living for themselves and their families in accordance with the provisions of the present Covenant; (b) safe and healthy working conditions; (c) equal opportunity for everyone to be promoted in his employment to an appropriate higher level, subject to no considerations other than those of seniority and competence; (d) rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidays. The right of refugees to enjoy fair working conditions is a novel feature of the 1951 Refugee Convention. It was not guaranteed in any of the predecessor refugee treaties, nor was it proposed in the French government’s draft of the 1951 Convention. The decision of the Secretary-General to promote such a right was likely inspired by the contemporaneously drafted Arts. 23 and 24 of the Universal Declaration of Human Rights247 which, in turn, were based upon the detailed work of the International Labor Organization.248 In presenting his proposal for what 247

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Art. 23 of the Universal Declaration refers inter alia to “just and favourable conditions of work,” to “equal pay for equal work” without discrimination, to “just and favourable remuneration ensuring for [the worker] and his family an existence worthy of human dignity,” and to the right “to form and to join trade unions.” This is complemented by Art. 24 which posits “the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.” “The rights mentioned in article 24 are among the original concerns of the labour movement and among the early standards established by international labour law”:

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became Art. 24 of the Refugee Convention, the Secretary-General insisted that it was justified not only as a matter of principle,249 but also for pragmatic reasons: The placing of foreigners and national workers on the same footing not only met the demands of equity but was in the interests of national wageearners who might have been afraid that foreign labour, being cheaper than their own, would have been preferred.250

In line with this thinking, it was proposed that refugees – at least once they are “lawfully staying” in the host country251 – should be entitled to insist upon guarantees of fair working conditions not simply on par with those extended to aliens generally or even to most-favored foreigners, but rather at a level of equivalency with the protections enjoyed by citizens of the asylum state itself.

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G. Melander, “Article 24,” in A. Eide et al. eds., The Universal Declaration of Human Rights: A Commentary 379 (1992) (Melander, “Article 24”), at 379. See generally K. Källström, “Article 23,” in ibid. at 373. Craven neatly captures the ethical dimension, arguing that “[i]f, on the one hand, work is seen as a necessary evil, then humanity requires that the conditions under which it is undertaken are as tolerable as possible”: Craven, ICESCR Commentary, at 226. The Committee on Economic, Social and Cultural Rights has more recently noted that “[b]ecause of their often precarious status, refugee workers remain vulnerable to exploitation, discrimination and abuse in the workplace, may be less well paid than nationals, and have longer working hours and more dangerous working conditions”: UN Committee on Economic, Social and Cultural Rights, “General Comment No. 23: Right to Just and Favourable Conditions of Work,” UN Doc. E/C.12/GC/23, Apr. 27, 2016, at [47(i)]. Secretary-General, “Memorandum,” at 37. The Ad Hoc Committee specifically referenced these considerations as underpinning para. 1(a): Ad Hoc Committee, “First Session Report,” at Annex II. This level of attachment was implied in the original draft prepared by the SecretaryGeneral, which made Art. 24 “subject to the provisions of Article [17, on wage-earning employment]”: Secretary-General, “Memorandum,” at 37. The Ad Hoc Committee, however, proposed a more relaxed standard based on the approach of the cognate provision of the ILO’s Migration for Employment Convention of 1949, which granted labor protections to migrants “lawfully within [the state party’s] territory.” It therefore agreed that Art. 24 rights be granted to refugees “lawfully in their territory”: Ad Hoc Committee, “First Session Report,” at Annex I. Without engaging in any plenary debate on the issue, the Conference of Plenipotentiaries reverted to the present, more restrictive formulation. The timing of entitlement to access wage-earning employment and to the protection and labor standards is in principle the same, namely when the refugee is lawfully staying in the state party. But it is arguable that in the event access to employment is granted at an earlier time than required by the Convention, the state party may still refuse to grant refugees the benefit of Art. 24(1)(a) until lawful stay is established. If it were to do so, it would of course create precisely the competitive advantage for refugee workers over nationals which the drafters sought to avoid. In addition, refugees working in such circumstances would still be entitled to assert the right to basic labor protections under Art. 7 of the Economic Covenant: see text at note 253 ff. An argument could also be made that the refusal to refugees authorized to work of the protection of labor laws would breach the general duty of non-discrimination set by Art. 26 of the Civil and Political Covenant, since it would be difficult to justify as a reasonable exclusion: see Chapter 1.5.5.

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Art. 7 of the Covenant on Economic, Social and Cultural Rights takes a somewhat different tack to the definition of workers’ rights. It goes beyond the Refugee Convention by stipulating that relevant rights inhere in “everyone” – a phrase understood by the supervisory Committee on Economic, Social and Cultural Rights to embrace refugees,252 including “asylum-seekers”253 – thus making clear that its protections inhere long before the “lawful stay” requirement of the Refugee Convention’s Art. 24 is met.254 The Covenant also goes beyond Art. 24’s closed list of worker protections, explicitly providing for an open-ended approach that can readily evolve to regulate new forms of worker protection over time.255 Yet even as Art. 7 of the Covenant helpfully expands the protective scope of Art. 24 of the Refugee Convention in some ways, it offers less in other respects. First, a number of forms of protection that would have to be read into the general language of the Covenant are explicitly required by the Refugee Convention, thus helpfully foreclosing debate on whether they must be guaranteed or not.256 Second, the Refugee Convention imposes a duty of result, not just an obligation of progressive implementation as under the Covenant. Third, Art. 24 sets an unequivocal and high required standard of treatment, that being the same as nationals receive – in contrast to the looser duty only to ensure rights without discrimination under the Covenant. And fourth, the absolute duty set by the Refugee Convention avoids the debate about whether at least some aspects of working condition guarantees – in particular, the regulation of wages and the duty to provides workers with paid holidays – are “economic” rights that less developed countries might lawfully choose to deny to non-citizens under the Art. 2(3) exception provided for in the Covenant. It is thus clear that refugee workers are better protected by the

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UN Committee on Economic, Social and Cultural Rights, “General Comment No. 23: Right to Just and Favourable Conditions of Work,” UN Doc. E/C.12/GC/23, Apr. 27, 2016, at [4], [47(1)]. See e.g. “Concluding Observations on the Third Periodic Report of Japan,” UN Doc. E/ C.12/JPN/CO/3, June 10, 2013, at [21]. The Inter-American Court of Human Rights determined that while states may deny noncitizens the right to work, once an employment relationship is initiated non-citizen workers are equally entitled to all workplace rights: Juridical Condition and Rights of Undocumented Workers (Advisory Opinion OC-18/03) (IACtHR, Sept. 17, 2003). “Article 7 identifies a non-exhaustive list of fundamental elements to guarantee just and favourable conditions of work. The reference to the term ‘in particular’ indicates that other elements, not explicitly referred to, are also relevant. In this context, the Committee has systematically underlined factors such as the following: prohibition of forced labour and social and economic exploitation of children and young persons; freedom from violence and harassment, including sexual harassment; and paid maternity, paternity and parental leave”: UN Committee on Economic, Social and Cultural Rights, “General Comment No. 23: Right to Just and Favourable Conditions of Work,” UN Doc. E/C.12/GC/23, Apr. 27, 2016, at [5]. See text at note 258.

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fused obligation arising from Art. 24 of the Refugee Convention and Art. 7 of the Economic Covenant than by either norm standing alone. To understand the substantive scope of protected interests, it makes sense to begin with the list of eleven specific entitlements set by Art. 24(1)(a) of the Refugee Convention, namely “remuneration, including family allowances where these form part of remuneration, hours of work, overtime arrangements, holidays with pay, restrictions on home work, minimum age of employment, apprenticeship and training, women’s work and the work of young persons, and the enjoyment of the benefits of collective bargaining.” Despite the breadth of this list, the scope of Art. 24 is actually more limited than that proposed by the Secretary-General. This is because the Secretary-General’s draft was reframed in order to bring it into line with the approach taken in the Migration for Employment Convention, drafted by the International Labor Organization in 1949.257 As explained by the Belgian representative, who had also chaired the conference that produced the ILO’s convention, that treaty “had been prepared by experts after long and careful study. They had been guided by a desire to apply to migrant workers or refugees the same regulations which governed nationals.”258 Because not all states that would sign the Refugee Convention were also members of the ILO, “the draft convention on refugees would lose nothing by duplicating the provisions of the ILO convention, with the drafting changes required to adapt the latter to refugees.”259 As the Danish representative feared,260 however, the decision to follow the ILO’s approach meant that some protections proposed by the SecretaryGeneral fell by the wayside. First, the Secretary-General had proposed that governments grant refugees the benefit of “all the labour regulations applicable to nationals,”261 whereas Art. 24(1)(a) follows the ILO’s lead of requiring respect for only a finite – if nonetheless quite extensive – list of protections.262 This weakness has, however, now been largely remedied by Art. 7 of the Economic Covenant, which provides that its list of entitlements is merely intended to provide examples of what should be done to promote the more general obligation to provide workers with “just and favourable conditions of work.”263 257

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Convention concerning Migration for Employment (Revised) (ILO Conv. 97), 120 UNTS 70 (UNTS 1616), done July 1, 1949, entered into force Jan. 22, 1952, at Art. 6. Statement of Mr. Cuvelier of Belgium, UN Doc. A/AC.32/SR.14, Jan. 26, 1950, at 5. Statement of Mr. Metall of the International Labor Organization, ibid. at 6. “[T]he draft convention on refugees was intended to deal specifically with that particular category of persons and the special circumstances in which they found themselves. It seemed pointless to copy the provisions of a convention applicable to foreigners in general”: Statement of Mr. Larsen of Denmark, ibid. at 5. Secretary-General, “Memorandum,” at 37. 262 See text at note 257. See note 255. Saul cautions, however, that “informal work (including subsistence livelihoods outside the modern cash economy), or work in the family, risks exclusion [from the scope of Art. 7]”: Saul, ICESCR Commentary, at 394.

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Second and more specifically, two types of standard mentioned in the Secretary-General’s draft as examples of laws from which refugees would benefit were not found in the ILO’s list, and were therefore not included in the Refugee Convention.264 These are standards directed to “health and safety in employment”265 and “guarantees of employment.” The former concern is now addressed by the duty under Art. 7(b) of the Economic Covenant to ensure that everyone enjoys “safe and healthy working conditions.”266 The drafting history of Art. 7(b) makes clear only that there was a commitment that workers be protected from conditions “injurious to health,”267 though the Committee on Economic, Social and Cultural Rights has in practice required states to demonstrate both non-exclusion of various categories of workers from protection and progressive achievement in advancing the standards of worker health and safety.268 But the second right that was omitted from Art. 24 of the Refugee Convention – the right to be treated as a citizen in enforcing guarantees of employment, a matter of particular concern to refugees resettled under a labor migration program – is less clearly remedied by Art. 7 of the Economic Covenant.269 The decision to omit any explicit reference to this right to enforce a private arrangement follows from another shift occasioned by the decision to follow the ILO’s approach: it explicitly grants access to the listed forms of labor protection only “in so far as such matters are governed by laws or regulations or are subject to the control of administrative authorities.” This clause, now included in Art. 24(1)(a) of the Refugee Convention, makes it clear that only public domain labor protection must be extended to refugees. As such, where particular forms of labor protection are granted and governed solely

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One right included in the Convention, but not mentioned in the original draft by the Secretary-General, is the right to benefit from “overtime arrangements.” It might, however, be argued that this entitlement is implied in the duty to grant refugees protections related to wages and working hours. Secretary-General, “Memorandum,” at 37. 266 Economic Covenant, at Art. 7(b). Craven, ICESCR Commentary, at 230, citing the Statement of the Yugoslav representative, UN Doc. E/CN.4/AC.14/Add.2, at 2. Craven, ICESCR Commentary, at 142. Under parallel provisions of the Economic Covenant, “[i]n the case of those States that operated a system of collective bargaining, it would be impossible for the State to assume responsibility for matters that were negotiated by the trade unions”: ibid. at 227, quoting from the statement of a British drafter of the Covenant at UN Doc. E/CN.4/SR.206 (1951), at 10. Yet a relevant duty may arise under the Economic Covenant since it “requires States parties to take measures to ensure that third parties, such as private sector employers and enterprises, do not interfere with the enjoyment of the right” to just and favourable conditions of work “and comply with their obligations,” to be achieved by “effective laws and policies and adjudication”: UN Committee on Economic, Social and Cultural Rights, “General Comment No. 23: Right to Just and Favourable Conditions of Work,” UN Doc. E/C.12/GC/23, Apr. 27, 2016, at [59].

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by private agreement between employer and employee, there is no duty to provide refugees the same rights as nationals.270 Even as refugees were denied some of the rights proposed by the SecretaryGeneral in order to align Art. 24 with the ILO precedent, two of the rights contained in the ILO’s treaty were also withheld from refugees. First, the drafters of the Refugee Convention omitted the ILO Convention’s protection of “membership of trade unions and enjoyment of the benefits of collective bargaining.” The focus of concern was the first part of the clause, which conflicted with the lower standard of treatment (assimilation to mostfavored nationals) granted to refugees by Art. 15’s guarantee of the right of association (including trade unions).271 If the ILO’s precedent of assimilating refugees to nationals were followed, France feared that refugees might be entitled to establish and run trade unions: [The French] Government . . . would be unable to accept a provision which would make it possible for refugees to participate in the administration or management of unions comprising French nationals and aliens, or which would, by implication, make it possible to organize unions of workers or employees consisting entirely of aliens . . . His Government was prepared to accord refugees most-favoured-nation treatment, but was not prepared to accord them treatment equal to that accorded to its own nationals.272

The ILO’s observer accurately insisted, however, that his organization’s treaty actually spoke only to “membership of trade unions; it was not a question of providing in the Convention for equal treatment with regard to the organization of trade unions and participation in their administration.”273 Nonetheless, some states clearly objected to even allowing refugees the same right as citizens to join trade unions. China, for instance, asserted that “because of the presence of surplus labour in [that] country, there was no question of any alien joining a trade union there.”274 It was therefore agreed that while Art. 24(1)(a) would assimilate refugees to nationals for purposes of enjoying the benefits of collective bargaining,275 the right to join and participate in the work of trade unions 270

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“The State could not intervene, for example, where agreements existed between employees and employers”: Statement of Mr. Cuvelier of Belgium, UN Doc. E/AC.32/SR.14, Jan. 26, 1950, at 5. See Chapter 6.5. Statement of Mr. Juvigny of France, UN Doc. E/AC.32/SR.38, Aug. 17, 1950, at 10. Statement of Mr. Oblath of the International Labor Organization, ibid. at 11. Statement of Mr. Cha of China, ibid. at 10. China was, however, prepared to accept the most-favored-national level of attachment provided for in Art. 15’s guarantee of freedom of association, presumably because it did not intend to grant the nationals of any country the right to join trade unions: ibid. The American representative had earlier proposed “that the words ‘enjoyment of the benefits of collective bargaining’ . . . should be added at the end of sub-paragraph 1(a)(i)”: Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.14, Jan. 26, 1950, at 8.

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would be governed by the more general rules of Art. 15. This omission is, however, now of little moment as it is countered by the more comprehensive trade union rights set not only by Art. 8 of the Economic Covenant, but also by Art. 22 of the Civil and Political Covenant.276 Second, Art. 24 of the Refugee Convention does not include the ILO Convention’s commitment to ensure migrant workers equality of treatment with nationals with regard to worker “accommodation.”277 The Belgian representative to the Ad Hoc Committee proposed the deletion of this protection for purposes of the Refugee Convention,278 a move supported in particular by the British representative who worried that “it would be difficult to guarantee exactly equal treatment for refugees in the matter of housing, since the housing shortage was acute and the matter had to be dealt with on the basis of need. It was also felt that a certain degree of preference as regards housing should be given to some categories of nationals, such as ex-servicemen.”279 The drafters therefore declined to grant refugee workers any special housing rights, meaning that they benefit only from the general entitlement of refugees to access housing on the same terms as aliens generally set by Arts. 13 and 21 of the Refugee Convention.280 On the other hand, in “adapting” the ILO Convention to meet the particular circumstances of refugees, the drafters enhanced the scope of protection in some respects. Neither the Secretary-General’s original draft for the Refugee Convention nor Art. 7 of the Economic Covenant explicitly required that refugees benefit from overtime arrangements, restrictions on home work, minimum age of employment rules, opportunities for apprenticeship and training, and rules governing the work of young persons – all matters explicitly governed by Art. 24(1)(a) of the Refugee Convention. As the preceding analysis suggests, the subsequent advent of Art. 7 of the Economic Covenant has enhanced the worker protections owed to refugees. In addition to the two critical changes already noted – the adoption of an openended approach to the relevant scope of worker protection281 and the specific 276 277

278 279

280

281

See Chapter 6.5 at note 867 ff. One of the concerns was whether, in fact, the ILO Convention required equal treatment only with respect to worker accommodation, or with regard to accommodation in general: Statements of Mr. Henkin of the United States and Mr. Rain of France, ibid. at 9. Statement of Mr. Cuvelier of Belgium, ibid. at 8. Statement of Sir Leslie Brass of the United Kingdom, ibid. at 8. See also Statement of Mr. Cha of China, ibid. at 9–10: “His own country, devastated by war and suffering from a grave shortage of housing, had taken urgent measures, following the end of the Second World War, to relieve the suffering of the refugees; those measures had often placed the refugees in a more advantageous position, from the point of view of housing, than many Chinese nationals. He felt that the matter of housing should be left to the initiative and control of the individual Governments.” See Chapters 4.5.1 and 6.4. This conflict was noted by the Chairman, Mr. Larsen of Denmark, UN Doc. E/AC.32/SR.38, Aug. 17, 1950, at 9. See text at note 255.

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guarantee of safe and healthy working conditions282 – the Covenant also guarantees equal opportunity “for everyone to be promoted in his employment,” with no criteria other than seniority and competence deemed relevant.283 By virtue of this clause, a refugee worker may not ordinarily be passed over for advancement in favor of a citizen of the host state on grounds of his refugee (or non-citizen) status.284 So, what does this ability of refugee workers to invoke an amalgam of rights drawn from Art. 24 of the Refugee Convention and Art. 7 of the Economic Covenant mean in practice? First, until “lawful stay” is achieved only Economic Covenant rights may be claimed. This means that an interpretive exercise under Art. 7 of the Covenant will be required to secure entitlement to those rights explicitly protected only in the Refugee Convention – to overtime arrangements, restrictions on home work, minimum age of employment rules, opportunities for apprenticeship and training, and rules governing the work of young persons. Second, it means that worker rights at this early stage are subject only to the Covenant’s duty progressively to implement the rights without discrimination,285 in consequence of which the Covenant’s presumption of a duty to achieve parity with the rights afforded citizens286 may be displaced if differential progress on 282 283

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See text at note 266. “All workers have the right to equal opportunity for promotion through fair, merit-based and transparent processes that respect human rights . . . Equality in promotion requires analysis of direct and indirect obstacles to promotion”: UN Committee on Economic, Social and Cultural Rights, “General Comment No. 23: Right to Just and Favourable Conditions of Work,” UN Doc. E/C.12/GC/23, Apr. 27, 2016, at [31]–[32]. The Committee on Economic, Social and Cultural Rights has held that Art. 7(c) imposes a duty on state parties to establish objective norms for promotion in the public sector, as well as legislation to counter private sector discrimination in promotion: ibid. at [31]–[33]. That is, there would be a duty to show the reasonableness of the differential treatment on objective grounds. While it might be possible to make this argument in relation to security-sensitive fields of work, it would be difficult to justify why lack of citizenship makes an otherwise employable refugee ineligible for promotion on the basis of competence and seniority. See Chapter 1.5.5. “States parties must comply with their core obligations and take deliberate, concrete and targeted steps towards the progressive realization of the right to just and favourable conditions of work, using maximum available resources . . . States parties must move as expeditiously and effectively as possible towards the full implementation of the right to just and favourable conditions of work”: UN Committee on Economic, Social and Cultural Rights, “General Comment No. 23: Right to Just and Favourable Conditions of Work,” UN Doc. E/C.12/GC/23, Apr. 27, 2016, at [50]–[51]. The “core obligations” largely focus on non-discrimination, but include also “minimum essential levels” of protection in regard to minimum wages, occupational health and safety, prevention of workplace harassment, and rest and leisure: ibid. at [65]. “States Parties should enact legislation enabling refugees to work and under conditions no less favourable than for nationals [emphasis added]”: UN Committee on Economic, Social

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achieving protection standards is shown to be objective and reasonable.287 And third, and potentially most serious of all, it means that in less developed countries refugee workers not yet lawfully staying may in some cases be denied any protections deemed “economic” – for example, to regulation of wages and to paid holidays – under the Art. 2(3) exception set by the Economic Covenant.288 Once the “lawful stay” requirement for entitlement to rights under Art. 24 of the Refugee Convention is met by the process of refugee status recognition or the granting of another durable form of status,289 refugee workers are much more solidly protected. Any right that is found in both the Convention and Covenant – as most are – is then owed as a duty of result (not just subject to progressive implementation), and must moreover be implemented on terms of equality with nationals (not just without discrimination). The Art. 2(3) exception for less developed countries is also trumped by the fact that, under Art. 24 of the Refugee Convention, all states are subject to the same duty to protect refugee workers. Lawfully staying refugee workers are also entitled to claim – albeit subject to the progressive implementation290 and less developed state constraints291 built into the Economic Covenant – the net additions to the range of protected interests set by Art. 7 of the Economic Covenant, including most critically its open-ended scope, but also its specific entitlements to health and safety protections and to fairness in promotion. Three areas of substantive overlap between Art. 24 of the Refugee Convention and Art. 7 of the Economic Covenant helpfully illustrate the potential for positive synergy between these two core sources of protection for refugee workers. First, Art. 24(1)(a) of the Refugee Convention requires that refugees be treated as citizens for purposes of the regulation of “remuneration, including family allowances where these form part of remuneration.” The parallel right in the Economic Covenant is more explicit, requiring governments to commit themselves to a minimum qualitative standard of remuneration – sufficient to provide for a “decent living for themselves and their families,” at least to the level guaranteed by Art. 11 of the Covenant;292 and, in any event, “fair wages

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288 290 292

and Cultural Rights, “General Comment No. 23: Right to Just and Favourable Conditions of Work,” UN Doc. E/C.12/GC/23, Apr. 27, 2016, at [47(i)]. “In assessing whether States parties have complied with their obligation to take [steps to the maximum of their available resources], the Committee examines whether steps taken are reasonable and proportionate and whether they comply with human rights standards and democratic principles”: UN Committee on Economic, Social and Cultural Rights, “General Comment No. 23: Right to Just and Favourable Conditions of Work,” UN Doc. E/C.12/GC/23, Apr. 27, 2016, at [77]. See generally Chapter 1.5.4 at note 468 ff. See Chapter 1.5.4 at note 432 ff. 289 See Chapter 3.1.4. See Chapter 1.5.4 at note 404 ff. 291 Ibid. at note 432 ff. “The text indicates that the term ‘decent living’ is to be read in the light of the other provisions of the Covenant. Particular reference could be made to article 11 which refers to ‘an adequate standard of living.’ More specifically, however, the phrase ‘a decent living’

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and equal remuneration for work of equal value without distinction of any kind [emphasis added].” This guarantee of equal pay for equal work logically imports a theory of comparable worth,293 and leaves no room for the application of a margin of appreciation which might defeat the claims of refugees brought under general duties of non-discrimination.294 Second, the Refugee Convention requires that refugee workers be treated as nationals where there are protections addressed to “hours of work . . . [and] holidays with pay.” The Economic Covenant requires further that hours of work be subject to “reasonable limitations,” a standard which is now understood to approximate a forty-hour week.295 The Covenant also requires that work be constrained to allow for “rest [and] leisure,” said by one expert to impose a bifurcated duty: The word “rest” . . . is intended to guarantee a real cessation of activities, giving the individual [the] possibility to regain his strength. “Leisure” on the other hand should make it possible for the individual to cultivate his mind and interests.296

The Committee also interprets Art. 7 to require a limit on daily and weekly work hours, as well as daily and weekly rest periods, paid annual leave and public holidays, and fair consideration for flexible working arrangements.297

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296 297

appears to refer to those rights that depend for their enjoyment upon personal income such as rights to housing, food, clothing, and perhaps health, education, and culture”: Craven, ICESCR Commentary, at 235. See also Saul, ICESCR Commentary, at 393; and UN Committee on Economic, Social and Cultural Rights, “General Comment No. 23: Right to Just and Favourable Conditions of Work,” UN Doc. E/C.12/GC/23, Apr. 27, 2016, at [18]. The requirements of Art. 11 of the Economic Covenant are discussed in some detail in Chapter 4.4.2. See Craven, ICESCR Commentary, at 237. Indeed, “[n]ot only should workers receive equal remuneration when they perform the same or similar jobs, but their remuneration should also be equal even when their work is completely different but nonetheless of equal value when assessed by objective criteria”: UN Committee on Economic, Social and Cultural Rights, “General Comment No. 23: Right to Just and Favourable Conditions of Work,” UN Doc. E/C.12/GC/23, Apr. 27, 2016, at [11]. See Chapter 1.5.5 at note 471 ff. “The requirement of equal remuneration in the Covenant is broader than that found in other instruments . . . First, whereas the ILO Convention No. 100 and article 119 of the Treaty of Rome provide for equal pay only in relation to men and women, article 7(1) applies to ‘all workers . . . without distinction of any kind’”: Craven, ICESCR Commentary, at 238. UN Committee on Economic, Social and Cultural Rights, “General Comment No. 23: Right to Just and Favourable Conditions of Work,” UN Doc. E/C.12/GC/23, Apr. 27, 2016, at [37]. Melander, “Article 24,” at 380. UN Committee on Economic, Social and Cultural Rights, “General Comment No. 23: Right to Just and Favourable Conditions of Work,” UN Doc. E/C.12/GC/23, Apr. 27, 2016, at [34]–[46].

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A third area of overlap between the Refugee Convention and the Economic Covenant is the regulation of “women’s work.” While the drafters of the Refugee Convention likely had in mind regulations which traditionally limited the hours or conditions of work of women to enable them to meet family and other responsibilities, in contemporary context the duty to enable workers to cope with parenting and related responsibilities is more broadly conceived: Measures aimed at assisting workers to reconcile work with family responsibilities should not reinforce stereotyped assumptions that men are the main breadwinners and that women should bear the main responsibility for the household. If substantive equality is to be achieved, both male and female workers with family responsibilities should benefit from the measures on an equal footing.298

More generally, refugees are entitled to benefit from the Economic Covenant’s commitment to “women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work.”299 As the supervisory Committee has insisted, a sophisticated analysis is required, since “[i]ntersectional discrimination and the absence of a life-cycle approach regarding the needs of women lead to accumulated disadvantages that have a negative impact on the right to just and favourable conditions of work and other rights.”300 It is also noteworthy that the Committee has taken a particular interest in the plight of migrant women, insisting that they must benefit from this duty to promote sex equality in the workplace in the same way as citizens.301 In sum, the scope of the guarantee of fair working conditions for lawfully staying refugees may be said to derive from a fusion of refugee-specific and general human rights norms – the best of both worlds, since each of the Refugee Convention and Economic Covenant provides for some rights not set by the other. Most important, the generality of the duty under the Economic Covenant implied in its recognition of the “right of everyone to the enjoyment of just and favourable conditions of work” means that refugees may in principle immediately claim the benefit of any protection of workplace fairness, whether or not it is of a type specifically mentioned in Art. 24(1)(a) of the Refugee Convention. Art. 24(1)(a) of the Refugee Convention nonetheless remains of real importance for at least three reasons. First, the substantive ambit of the Refugee Convention’s guarantees of workplace fairness is in some ways more explicitly broad than that of the Economic Covenant, including the right to benefit from rules and procedures related to overtime arrangements, restrictions on home work, minimum age of 298 300

301

Ibid. at [36]. 299 Economic Covenant, at Art. 7(a)(i). UN Committee on Economic, Social and Cultural Rights, “General Comment No. 23: Right to Just and Favourable Conditions of Work,” UN Doc. E/C.12/GC/23, Apr. 27, 2016, at [47(a)]. See Craven, ICESCR Commentary, at 240.

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employment, apprenticeship and training, the work of young persons, and enjoyment of the benefits of collective bargaining. Second, even where much the same substantive rights are specified, the duties set by the Refugee Convention are duties of result, not subject to the Economic Covenant’s less exacting requirement of progressive, non-discriminatory implementation to the maximum of a state’s available resources. The required standard of treatment is moreover explicitly whatever is owed to nationals of the asylum state, with no flexibility to argue for reasonable and objective differentiation, as is allowed under the Economic Covenant. Third, while less developed states may normally elect not to extend an economic right set by the Covenant to non-citizens by invoking Art. 2(3) of that treaty, they enjoy no such discretion where the same right also appears in the Refugee Convention. The fact that Art. 24(1)(a) guarantees refugees the same public domain safeguards of fair treatment in the workplace as accrue to citizens of the host country – whatever that country’s economic circumstances – is potentially of enormous importance to the majority of the world’s refugees who live outside the developed world. Indeed, because the Refugee Convention repeats three of the most critical forms of protection required by the Economic Covenant (namely those related to remuneration, hours of work and holidays, and the employment of women), the Refugee Convention effectively trumps Art. 2(3) of the Covenant to the extent of that overlap.

6.1.3 Social Security Refugee Convention, Art. 24 Labour Legislation and Social Security 1. The Contracting States shall accord to refugees lawfully staying in their territory the same treatment as is accorded to nationals in respect of the following matters: . . . (b) Social security (legal provisions in respect of employment injury, occupational diseases, maternity, sickness, disability, old age, death, unemployment, family responsibilities and any other contingency which, according to national laws or regulations, is covered by a social security scheme), subject to the following limitations. (i) There may be appropriate arrangements for the maintenance of acquired rights and rights in course of acquisition; (ii) National laws or regulations of the country of residence may prescribe special arrangements concerning benefits or portions of benefits which are payable wholly out of public funds, and concerning allowances paid to persons who do

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not fulfil the contribution conditions prescribed for the award of a normal pension. 2. The right to compensation for the death of a refugee resulting from employment injury or from occupational disease shall not be affected by the fact that the residence of the beneficiary is outside the territory of the Contracting State. 3. The Contracting States shall extend to refugees the benefits of agreements concluded between them, or which may be concluded between them in the future, concerning the maintenance of acquired rights and rights in the process of acquisition in regard to social security, subject only to the conditions which apply to nationals of the States signatory to the agreements in question. 4. The Contracting States will give sympathetic consideration to extending to refugees so far as possible the benefits of similar agreements which may at any time be in force between such Contracting States and non-contracting States. Economic, Social and Cultural Covenant, Art. 9 The States Parties to the present Covenant recognize the right of everyone to . . . social insurance. While the structure of the Refugee Convention anticipates that refugees lawfully staying in an asylum country will support themselves by undertaking work, the drafters logically took account of the possibility that refugees, like citizens, might sometimes be prevented by circumstances beyond their control from earning their own living. Most of the states that prepared the Refugee Convention had established social security systems funded largely by contributions from workers and employers to compensate persons unable to work for more than strictly temporary reasons.302 But refugees were not always in a position meaningfully to benefit from these social security systems. In Switzerland, for example, With regard to old-age and widows’ and orphans’ insurance, refugees were treated as favourably as aliens generally. They had to be insured if they carried on any gainful activity, but were entitled to a grant only if they had paid contributions for at least 10 years, and the grant they received was

302

“A distinction is often made between social security and social welfare. Through such a classification one wishes to separate between the ‘earned’ social security benefits of workers and their families, and any individual or group receiving need-based assistance from public funds, raised through tax revenues”: M. Scheinin, “The Right to Social Security,” in A. Eide et al. eds., Economic, Social and Cultural Rights: A Textbook 159 (1995) (Scheinin, “Social Security”), at 159. The issue of access to need-based (publicly funded) social assistance is addressed at Chapter 6.3.

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only two-thirds of that received by Swiss nationals. In addition, they were not entitled to temporary grants.303

In many other countries, the situation was worse still, as non-citizens frequently had no right to access social security at all unless a treaty was in place between the host state and the non-citizen’s country of origin.304 An injured or incapacitated refugee worker might therefore be left with no means of support, based simply on the failure of his or her country of origin to sign an agreement with the new country of residence. In line with their general commitment to compensate refugees for the disadvantages of involuntary alienage, and their particular concern that the welfare of refugees should not be held hostage to the whims of the states they had been compelled to flee, the drafts presented by both the Secretary-General305 and the French government306 proposed the assimilation of refugees lawfully staying in a state party to citizens of the host country for purposes of entitlement to social security. Subject only to the understanding that the actual mechanisms by which social security benefits are delivered to refugees might be distinct,307 this basic principle was never called into question during the drafting process.308 303 304

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Statement of Mr. Schurch of Switzerland, UN Doc. E/AC.32/SR.38, Aug. 17, 1950, at 11. “A number of bilateral treaties and certain international treaties, notably those concluded under the auspices of the International Labour Office, place foreigners who are nationals of State Parties to the Agreements on the same footing as nationals in respect of social security . . . In these circumstances, the same equality should be ensured to refugees”: Secretary-General, “Memorandum,” at 38. The Secretary-General’s draft contained two separate articles. The first, Art. 16(2), provided that States would “accord to the victims of industrial accidents or their beneficiaries the same treatment that is granted to their nationals.” The second and more general provision, Art. 17, required further that refugees would receive national treatment “in respect of social security . . . (sickness, maternity, invalidity, old-age insurance, insurance against the death of the breadwinner, and unemployment insurance)”: ibid. at 37–38. “While regularly resident in the territory of one of the High Contracting Parties, refugees shall receive the same treatment as nationals in respect of insurance and social security (including industrial accident compensation)”: France, “Draft Convention,” at 7. “[I]n Denmark an insured person only made a formal contribution to the social security scheme . . . [so] that it was in reality the State that contributed to the various funds. The Danish Government was prepared to extend social security to refugees, but under the Danish system it would be necessary for the benefits to be paid to refugees on that count to come from funds other than the old age pension fund and the like”: Statement of Mr. Larsen of Denmark, UN Doc. A/CONF.2/SR.10, July 6, 1951, at 19. See also Statement of Mr. Hoare of the United Kingdom, ibid.: “[A] similar situation arose in the United Kingdom. There were certain old age pensions for which foreigners were not eligible, but their grant depended on the applicants’ means, and a foreigner whose means were the same would get the equivalent under the general social security legislation. He had assumed that article [24] could be interpreted broadly enough to meet the requirements of Denmark and the United Kingdom in that respect.” Some countries, including Switzerland, maintained the view that certain social security payments would be made to refugees only on the same terms as granted to aliens generally: see Statement of Mr. Zutter of Switzerland, ibid. at 20. The Swiss reservation to this effect has

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As in the case of guarantees of workplace fairness,309 the members of the Ad Hoc Committee were persuaded to model the social security rules of the Refugee Convention on the precedent of the ILO’s Migration for Employment Convention.310 The substantive reach of Art. 24(1)(b) is therefore quite broad, extending to legal schemes to provide for assistance in the event of “employment injury, occupational diseases, maternity, sickness, disability, old age, death, unemployment, family responsibilities and any other contingency which, according to national laws or regulations, is covered by a social security scheme.” The notion of “social security,” in other words, includes the full range of contribution-based initiatives designed to compensate workers unable to continue working. As the intervention of the International Labor Organization made clear, the label assigned to the program is not determinative since “[p]resent-day legislation and treaties made no distinction between industrial accidents and social security and it would be difficult to discuss the two matters separately.”311 Subsequent exchanges, for example, establish that any scheme to provide compensation for employment injury – whether called “social security” or something else – is covered by the terms of Art. 24(1)(b).312 The only form of social security protection which elicited any significant discussion by the drafters was assistance to be paid in the event of “disability.” The ILO precedent used the term “invalidity,” said by that organization to mean “permanent disability, while ‘disability’ also covers temporary disability.”313

309 310

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since been withdrawn, though several other countries maintain comparable reservations: see reservations and declarations of state parties, https://treaties.un.org, accessed Dec. 21, 2020. See Chapter 6.1.2. See Chapter 6.1.2 at note 248. Not all countries supported this approach. The British representative, for example, “did not feel satisfied that the ILO text under consideration entirely covered, or could be made to cover, the situation of refugees”: Statement of Sir Leslie Brass of the United Kingdom, UN Doc. E/AC.32/SR.14, Jan. 26, 1950, at 7. Even the Belgian representative who had chaired the conference that produced the ILO Convention was cautious in his endorsement of using that treaty as the model for the Refugee Convention. He “wished to make it clear that he did not advocate the adoption of article 6 of the Migration for Employment Convention as it stood; he merely felt that it would be a more useful basis for discussion than the Secretariat’s text”: Statement of Mr. Cuvelier of Belgium, ibid. Statement of Mr. Metall of the International Labor Organization, UN Doc. E/AC.32/ SR.14, ibid. at 4. The Belgian delegate insisted that the Refugee Convention should be understood to give “refugees general security against social and other risks”: Statement of Mr. Cuvelier of Belgium, UN Doc. E/AC.32/SR.24, Feb. 3, 1950, at 3. The American representative suggested that an amendment to clarify this point was not required “as Mr. Cuvelier’s explanation would appear in the summary record”: Statement of Mr. Henkin of the United States, ibid. That report notes explicitly that “[t]his article includes provision for payment in cases of employment injury even if in a particular country such payments do not constitute a part of a social security system”: Ad Hoc Committee, “First Session Report,” at Annex II. “Comments submitted by the Director-General of the International Labour Office on the Draft Convention relating to the Status of Refugees,” UN Doc. E/AC.32/7, Aug. 15, 1950, at 3.

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Despite the ILO’s plea to incorporate the narrower term (“invalidity”) in the Refugee Convention, the drafters were content to allow refugees to benefit from a more comprehensive duty: [T]he reason for the change to the word “disability” was that “invalidity” apparently had no connection in English with the state of being an invalid. As “disability” was in any event wider in its meaning than what was meant by “invalidity,” [the representative of the United States] saw no reason why the International Labour Office should object to it.314

It was thereupon agreed that the broader meaning of social security in the event of disability – including programs to provide compensation in the event of either permanent or temporary incapacity – should be recorded as authoritative.315 The core of what the drafters of the Refugee Convention referred to as “social security” is today most appropriately called “social insurance,” as Saul explains: The earliest modern form of social security was social insurance, by which workers and employers paid co-contributions with employers to finance sickness insurance and workers’ compensation, occasionally supplemented by the state. Social insurance was thus originally linked to labour force participation and insurance-based funding . . . The nature and availability of social security gradually widened over time to include needbased social welfare or social assistance, such as old age pensions and unemployment benefits, which were decoupled from employment or insurance and funded by general taxation.316

The distinction between contributory and employment-related benefits (social insurance) and non-contributory and more general benefits (social welfare or social assistance) is of course far from clear-cut – as is apparent both from the scope of interests listed in Art. 24 and from the decision taken when drafting the Economic Covenant to consolidate both types of support317 in that treaty’s 314

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Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.38, Aug. 17, 1950, at 9. As Mr. Henkin suggested, the word “invalidity” simply does not have a relevant meaning in English. See also Statement of Sir Leslie Brass of the United Kingdom, ibid. at 16: “[T]he word ‘invalidity’ had no connection with health. If it was desired to indicate that the disability was permanent, then the words ‘permanent disability’ should be used. ‘Invalidity’ was obviously a mistranslation of a French term, which had crept into previous instruments.” The Chairman then proposed the use of the term “permanent disability” in Art. 24(1)(b), but abandoned that notion when no support was expressed for the idea: ibid. The Canadian representative “supported the proposal previously made by the United States representative that the Committee’s interpretation . . . quoted by the International Labour Office in paragraph 5 of its comments should be included in that article”: Statement of Mr. Winter of Canada, ibid. at 15. This proposal was supported by the representatives of the United Kingdom, Denmark, and France: ibid. Saul, ICESCR Commentary, at 609. The Committee on Economic, Social and Cultural Rights distinguishes between “contributory or insurance-based schemes such as social insurance” and “non-contributory schemes such as universal schemes,” both of which are addressed by Art. 9 of the

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Art. 9.318 Because nothing much turns on the distinction319 – lawfully staying refugees are also entitled to access non-contributory and more general forms of social welfare or assistance on the same terms as citizens under Refugee Convention Art. 23, discussed below320 – this chapter focuses on the narrower question of social insurance-type social security benefits which are more often subject to the sorts of complex, contribution-based rules that Art. 24 seeks to regulate. Art. 24(1)(b) not only requires that refugees be assimilated to citizens for purposes of benefitting from all contributory forms of social security protection,321 but it also sets one duty to assist refugees in a way that may

318

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Covenant. Indeed, that provision also contemplates “privately run schemes” and “self-help or other measures, such as community-based or mutual schemes”: UN Committee on Economic, Social, and Cultural Rights, “General Comment No. 19: The Right to Social Security,” UN Doc. E/C.12/GC/19, Feb. 4, 2008, at [4]–[5]. Under Art. 9 of the Economic Covenant “the term ‘social security’ implicitly covers all the risks involved in the loss of subsistence for reasons beyond a person’s control”: N. Jayawickrama, The Judicial Application of Human Rights Law (2017) (Jayawickrama, Judicial Application), at 1017–1018. The terminological confusion goes back even to the 1948 Universal Declaration of Human Rights under which “the rights to food, clothing, housing, medical care, and social services were merged into another article that until then had only dealt with matters of social security . . . The drafters had a great deal of trouble with and spent far more time on the label they were to use to introduce the list of items than on the individual items themselves”: J. Morsink, The Universal Declaration of Human Rights (1999), at 199. “In combination with Art. 23 (public relief), Art. 24 (labour legislation and social security) enables the 1951 Convention to provide a comprehensive framework of social assistance protection to refugees who are lawfully staying in the territory of a contracting State”: E. Lester, “Article 24,” in A. Zimmermann ed., The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary 1058 (2011) (Lester, “Article 24”), at 1060. Given the clear textual reference in Art. 24 to some programs more typically treated as social welfare or assistance – for example, benefits for old age or family responsibilities – it of course remains open to refugees to claim the net benefit of Art. 24 in relation to those benefits, as for example the special rule (see text at note 321) allowing refugees’ nonresident survivors to claim benefits even if nationals are not similarly entitled. See Chapter 6.3. In consequence of this duty, for example, the United States is in prima facie breach by opting to deny social security benefits to refugees who failed to acquire US citizenship within seven years of arrival in that country: “Thousands of Refugees Face Loss of US Benefits,” Seattle Post-Intelligencer, Nov. 12, 2003. While refugees are to be assimilated to citizens for purposes of determining their entitlement to social security, states enjoy no right to require refugees to become citizens in order to participate in social security schemes. In the case of the United States, however, a finding of non-compliance is probably avoided by the terms of a US reservation to Art. 24(1)(b) which provide that the obligation is accepted “except insofar as that paragraph may conflict in certain instances with any provisions of title II (old age, survivors’ and disability insurance) or title XVIII (hospital and medical insurance for the aged) of the Social Security Act. As to any such provision, the United States will accord to refugees lawfully staying in its territory treatment no less favorable than is accorded aliens generally in the same circumstances”:

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not be open to nationals. As several delegates confirmed, their general laws or regulatory practices normally prohibited the payment of a social security survivor benefit to a non-resident. The President of the Conference of Plenipotentiaries, for example, noted that “Danes were not allowed to draw pensions when resident abroad, so that it would not be possible, for instance, to allow the compensation payable on the death of a refugee to be transferred to his widow resident outside the country.”322 Similar rules existed in the United Kingdom, Germany, and Norway.323 Even though a rule of general application, the refusal to pay social security to a non-resident surviving spouse or child was said by the International Refugee Organization to have a disproportionate impact on the survivors of refugee workers: Difficulties had arisen in cases of fatal accidents to refugees whose beneficiaries resided abroad. Since those beneficiaries were not regular residents of the country where the accident had occurred, they had not received the benefits.324

As such, “[t]he dispensation of a residential qualification is of particular importance to refugees whose families are often split in their search for reestablishment in a country other than their country of origin.”325 Art. 24(2) provides precisely that dispensation. It sets an absolute duty, whatever the host state’s general rules, to pay any compensation due in the event of the death of a refugee worker occasioned by employment injury or occupational disease to the refugee’s survivors whether they live in the host country or elsewhere.326 Importantly, none of the governments which voiced concern about their non-conforming social security laws actually opposed this provision, agreeing instead simply to enter a reservation on point.327 In the result, “[p]aragraph 2 of Article 24 . . . goes beyond national treatment. Even if the [surviving] dependants of nationals are not entitled to benefit if they stay outside the country concerned, surviving dependants of refugees shall be

322 323

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325 326

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see reservations and declarations of state parties, https://treaties.un.org, accessed Dec. 21, 2020. Statement of Mr. Larsen of Denmark, UN Doc. A/CONF.2/SR.10, July 6, 1951, at 21. Statements of Mr. Hoare of the United Kingdom, Mr. von Trutzschler of the Federal Republic of Germany, and Mr. Anker of Norway, ibid. at 21–22. Statement of Mr. Weis of the International Refugee Organization, UN Doc. E/AC.32/ SR.14, Jan. 26, 1950, at 6. United Nations, “Compilation of Comments,” at 49. Weis notes, however, that “[a]s to the actual transfer of the compensation, currency regulations are preserved but they should, as far as possible, be interpreted in such a way as to make transfer possible”: Weis, Travaux, at 192. Germany did not, in fact, enter a relevant reservation; Denmark and Norway initially reserved on this point, but have since withdrawn their reservations to Art. 24(2). In addition to the United Kingdom (which maintains its reservation), New Zealand and Poland have also entered a reservation specifically to Art. 24(2): see reservations and declarations of state parties, https://treaties.un.org, accessed Dec. 21, 2020.

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allowed to enjoy such benefits and have them transferred out of the country.”328 In at least this one way, the Convention’s rules on social security clearly accommodate the specificity of the refugee predicament.329 Apart from this one enhancement, the refugee is generally entitled to receive only the same access to contributory forms of social security as is enjoyed by citizens of the host country. And even this general principle is attenuated by the rules set out in clauses (i) and (ii) of Art. 24(1)(b), read in conjunction with Arts. 24(3) and (4).330 These rules are in response to the general expectation of states that where an individual has contributed to the social security system of more than one country, certain benefits (such as an old age or retirement benefit) are routinely cost-shared by the various governments in which some measure of entitlement has accrued. As the representative of the International Labor Organization explained, “agreements were often concluded in order to enable workers who moved from one country to another to accumulate the insurance benefits earned in both countries. The two countries concerned would each agree to pay their share according to the time worked in their territory.”331 This is the case for nearly all refugees, who have generally spent part of their working life in their country of origin, and the rest in one or more asylum states. But because of their status as refugees, there is the possibility that partner states will not in fact be willing to cost-share the social security to be paid by the asylum country. Most obviously, the ruptured relationship between the refugee and his or her country of origin means that there is no guarantee that the country of origin will be willing to make its contribution to the refugee’s social security benefit.332 But it is also frequently the case that refugees have worked in 328 329

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Grahl-Madsen, Commentary, at 96–97. Art. 9 of the Economic Covenant has more recently been interpreted along similar lines to provide that “[w]here non-nationals, including migrant workers, have contributed to a social security scheme, they should be able to benefit from that contribution or retrieve their contributions if they leave the country”: UN Committee on Economic, Social, and Cultural Rights, “General Comment No. 19: The Right to Social Security,” UN Doc. E/ C.12/GC/19, Feb. 4, 2008, at [36]. Importantly, any constraints on treating refugees on terms of equality with nationals – including those set by the Refugee Convention – would, in line with Art. 26 of the Civil and Political Covenant, need also to pass muster as “reasonable and objective” forms of differentiation: see Chapter 1.5.5 and Saul, ICESCR Commentary, at 676–678. Adjudicating a case under domestic constitutional law, the South African Constitutional Court – even as it found differentiation between citizens and permanent residents to be unjustifiable – also suggested that the exclusion of some other categories of non-citizens would be “reasonable”: Louis Khosa v. Minister of Social Development, [2004] ZACC 11 (SA CC, Mar. 4, 2004), at [59]. Statement of Mr. Metall of the ILO, UN Doc. E/AC.32/SR.14, Jan. 26, 1950, at 11. “Such agreements could benefit the nationals of the countries concerned but it was difficult to see how they could benefit a refugee who had lost the protection of his Government and had cut himself off from the social security system of his country of

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a country of transit or first asylum which may be similarly disinclined to contribute to the social security benefit.333 In either of these situations, and unless express provision were made in the text of Art. 24, the drafters were concerned that the asylum state might be in the unhappy position of being asked to pay a full social security benefit to the refugee, but being unable to recover any contribution from the governments of other states where the refugee had accrued social security entitlements.334 As Grahl-Madsen explains, this predicament could arise because [i]t follows from sub-paragraph [(1)(b)] that a refugee shall as a rule receive national treatment with regard to social security in the country where he is lawfully staying. That is to say, if nationals, by virtue of being nationals, are entitled to the full benefit of a social security scheme even if they have spent most of their life abroad and only resided in the country for a marginal period, whereas aliens must have resided in the country and contributed to the scheme for a considerable period of time in order to become eligible, refugees shall be assimilated to the former.335

The essential goal of clauses (i) and (ii) of Art. 24(1)(b), read together with paragraphs (3) and (4) of the same article, is therefore to delimit the general right of refugees to be treated as citizens for purposes of entitlement to social security by authorizing state parties to reduce the refugee’s social security benefit to the extent of any unfunded contribution which should in principle have been made by one or more other countries in which the refugee has worked. The Belgian delegate to the Ad Hoc Committee provided a simple example of the approach ultimately adopted: He took as an example the case of a Polish miner in France. If the miner had worked ten years in Poland and twenty years in France, under the existing bilateral agreement Poland would pay one-third and France two-

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origin”: Statement of Mr. Metall of the ILO, ibid. See also Statement of Mr. Cuvelier of Belgium, ibid. at 12: “[S]uch arrangements were always the result of special arrangements . . . [R]efugees could not expect to receive any insurance benefits from their countries of origin.” This situation was raised by the observer from the American Federation of Labor. “[A]lthough refugees could not expect to benefit from any rights acquired in their countries of origin, some of them had acquired rights in Germany before moving to some other country for resettlement. Arrangements were being made to obtain recognition for those rights. He fully agreed with the representative of Belgium that it was essential to mention the limitation [in para. 14(1)(b)(i)] since all the arrangements were the result of special agreements”: Statement of Mr. Stolz of the American Federation of Labor, ibid. at 12. This can be seen in the blunt response of the American representative to an amendment proposed by the American Federation of Labor: “Mr. Stolz’s amendment would ensure a refugee the rights he had acquired by virtue of bilateral agreements before becoming a refugee. He did not consider it possible to adopt such a proposal.” Grahl-Madsen, Commentary, at 94.

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thirds of his pension. If the miner became a refugee, however, Poland could hardly be asked to pay the share which normally ought to have been paid by Poland. The miner would therefore receive in France only the twothirds which that country had originally undertaken to pay.336

The text which implements this principle is somewhat awkwardly drafted, but is actually quite sensible if its various parts are viewed as a whole.337 First, and in line with the Belgian representative’s example just cited, it was agreed that there could be no question of denying refugees such social security benefits as are owed them under the general rules of the host state, taking into account relevant requirements based on such factors as the time spent working and/or contributions made while working in the asylum state. On the basis of a firm assurance that “even in the absence of bilateral agreements, [a refugee’s] acquired rights would be safeguarded,”338 a nongovernmental amendment to Art. 24(1)(b) designed explicitly to safeguard the portion of a social security benefit payable under the host state’s own laws was withdrawn.339 Second, clause (i) is predicated on the understanding that refugees should in principle receive the benefit of any bilateral or other arrangements in place to preserve their “acquired rights and rights in course of acquisition.”340 As the Belgian representative explained, “[a] Polish miner residing in France would normally receive the insurance benefits he had accumulated in both countries, assuming there was close cooperation between the two countries in respect of insurance.”341 But the fact that clause (i) is a limitation clause makes clear that 336 337

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Statement of Mr. Cuvelier of Belgium, UN Doc. E/AC.32/SR.24, Feb. 3, 1950, at 4. One commentator nonetheless suggests that this provision “operates as a limitation on the obligation of States to treat refugees as their own nationals only where acquired rights or rights in the process of acquisition are indeed maintained through ‘appropriate arrangements’”: Lester, “Article 24,” at 1072. Not only is this understanding a poor fit with clauses (3) and (4) of Art. 24, but it would seem to lead to the odd result that benefits to a refugee might be limited if cost-sharing did occur, precisely the opposite of the concern voiced by the drafters. Nor is it sound to argue that this counter-intuitive interpretation is compelled by the duty to ensure all persons “the rights to an adequate standard of living and to life, and [to respect the] prohibition on inhuman or degrading treatment” (ibid.), though of course those freestanding duties must in all cases be respected: see Chapters 4.3.2 and 4.4. Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.14, Jan. 26, 1950, at 12. In response to Mr. Henkin’s assurance (see text at note 338), the representative of the American Federation of Labor withdrew his amendment, noting that he had proposed it “only because he had feared that becoming a refugee might deprive a person of the share to be paid by the country of reception”: Statement of Mr. Stolz of the American Federation of Labor, UN Doc. E/AC.32/SR.24, Feb. 3, 1950, at 4. “Maintenance of ‘acquired rights’ relates to rights to social security benefits acquired in one country and to be recognized, within the existing accumulation, by another country; maintenance of ‘rights in [course] of acquisition’ refers to a partial accumulation of rights which in itself is not sufficient to grant benefits and which represents part of the necessary amount of accumulation required for the enjoyment of benefits”: Robinson, History, at 126. Statement of Mr. Cuvelier of Belgium, UN Doc. E/AC.32/SR.23, Feb. 3, 1950, at 12.

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where there are no such arrangements in place, the country in which the refugee is staying cannot be expected to pay a benefit to the extent it is owed as the result of work not carried out on its territory, or for which worker or other contributions have not been made to its coffers. As Robinson writes, these rights acquired abroad “may either be disregarded or recognized in part only.”342 It was also agreed that governments could lawfully exclude refugees from certain special arrangements funded by the state and designed to “top up” contribution-based social security payments to their own citizens.343 But the right of governments to deny refugees access to such additional benefits is limited to circumstances in which the supplementary benefit is paid entirely from state funds, that is, from a fund not based even in part on contributions from workers or employers. This restriction is clear from the text of Art. 24(1)(b)(ii), which resulted from the defeat of an Austrian proposal that refugees not receive the benefit of special arrangements funded “wholly or partially out of public funds.”344 While sympathetic to the right of a state to provide special support to its citizens, the drafters feared that if any leeway were granted states to exclude refugees from special payments funded even in part from employer and worker contributions, “refugees would lose certain rights deriving from their contributions.”345 As the French government insisted, It was . . . possible that under certain social security systems the contributions paid by employers and workers were not sufficient to ensure financial stability; in such cases there was often a system of State assistance to redress the balance. If the Austrian proposal were accepted, in countries where the system was financed partly by the State but mainly by 342

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Robinson, History, at 126. Grahl-Madsen takes a more extreme position, arguing that a refugee who is subject to a treaty pertaining to a social security scheme is excluded from the general right to be assimilated to nationals for purposes of entitlement to social security: Grahl-Madsen, Commentary, at 94. There was, however, no discussion among the drafters that supports this view. Moreover, if the goal of clause (i) had been to exclude refugees covered by interstate social security treaties from the scope of the basic duty to assimilate refugees to nationals, it is surprising that it was framed merely in descriptive terms (“There may be appropriate agreements . . .”) rather than as a definitive exclusion from the basic duty set by Art. 24(1)(b). Grahl-Madsen clarifies that this clause normally refers to “allowances paid over and above the partial pension to which a person may be entitled by virtue of contributions paid, so that his total benefit shall be equal to a normal (or only slightly less than a normal) pension”: Grahl-Madsen, Commentary, at 96. But see Lester, “Article 24,” at 1073, suggesting to the contrary that this clause “does not absolve contracting States of the responsibility of ensuring that special arrangements are made to cover those refugees whose situation cannot be adequately covered by the usual arrangements that are in place for nationals generally.” United Nations, “Compilation of Comments,” at 48. Statement of Mr. Oblath of the International Labor Organization, UN Doc. E/AC.32/ SR.38, Aug. 17, 1950, at 17.

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contributions from the persons insured, wage-earning refugees who paid contributions might find themselves deprived of all right to benefits, that was to say, of the counterpart of the contributions they had paid.346

Because it could be seen that the Austrian approach was open to an interpretation that might deprive a refugee worker “of the benefits of his own or his employer’s contributions,”347 sub-paragraph (ii) of Art. 24(1)(b) disallows any exclusion of refugees from special arrangements funded in whole or in part from such contributions. One of the most important protections of Art. 24 is the guarantee in paragraph (3) that refugees benefit automatically from any social security arrangements made between or among state parties to the Refugee Convention. As conceived by the Ad Hoc Committee, Art. 24(3) would have gone farther still, entitling refugees to claim the benefit of any interstate agreement binding their host country, including one with a state not bound by the Refugee Convention.348 There was, however, concern that such a broadly framed duty could effectively compel state parties to pay out a combined social security benefit even when the partner country refused to cost-share the benefit. Governments were willing to commit themselves fully to enfranchise refugees only where there was a sufficiently solid guarantee that cost-sharing rules would apply also to benefits paid to refugees – and only state parties to the Refugee Convention would clearly be bound in this regard.349 As explained by the British representative to the Conference of Plenipotentiaries: He had no objection to the principle that those agreements [on transfer of social security rights] . . . should apply equally to refugees and to nationals, but the text . . . [should not] permit of the possibility that, under a bilateral agreement concluded between a State Party and a State non-Party to the Convention, the former would be required to apply to refugees from the latter the same conditions as it would apply to its own nationals. Such a unilateral obligation would be an unjustifiable burden on the State Party to the Convention, and he doubted whether it would be practicable without the co-operation of the non-Contracting State. He believed the 346 347 348

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Statement of Mr. Juvigny of France, ibid. at 17–18. Statement of Sir Leslie Brass of the United Kingdom, ibid. at 18. “The Contracting States whose nationals enjoy the benefits of agreements for the maintenance of acquired rights and rights in the process of acquisition in regard to social security, shall extend the benefits of such agreements to refugees subject only to the conditions which apply to their nationals”: “Report of the Ad Hoc Committee on Refugees and Stateless Persons, Second Session,” UN Doc. E/1850, Aug. 25, 1950 (Ad Hoc Committee, “Second Session Report”), at 22. Lester thus rightly observes that “[i]f country A were to default, the host government would still be bound to pay the refugees the whole of any combined benefit due to them pursuant to its arrangement with the defaulting State. Country B would then have to rely on its right to seek redress from the defaulting government of country A based on its Art. 24, para. 3 duty”: Lester, “Article 24,” at 1075.

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original intention had been that where such agreements existed between Contracting States, they should automatically be applied to refugees from both countries.350

The text of Art. 24(3) was therefore amended to limit the legal duty of states to enfranchise refugees under interstate arrangements for the protection of social security benefits to such agreements as are made between or among state parties to the Refugee Convention.351 This provision clearly responds to one of the two circumstances of initial concern to the drafters, namely the case of refugees who had worked in one or more countries of asylum before ultimately settling in a different state party:352 Taking the case of the social security agreement between France and Belgium, and assuming that there was no additional protocol extending the benefits of that agreement to refugees, and further assuming that both France and Belgium ratified the draft Convention at present before the Conference, refugees moving from France to Belgium and vice versa would enjoy the benefits accruing to nationals even though there was no special agreement to that effect. Consequently, benefits enjoyed by nationals would be extended to refugees whose countries of domicile or of habitual residence were parties to the Convention and to a bilateral agreement relating to the maintenance of acquired rights and rights in the process of acquisition for their nationals, provided such refugees were able to fulfil the requirements to which such benefits were subject so far as nationals were concerned.353

Moreover, refugees are entitled to benefit not only from contributory arrangements which are in place between state parties when the refugee arrives in the 350

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Statement of Mr. Hoare of the United Kingdom, UN Doc. A/CONF.2/SR.10, July 6, 1951, at 22. Grahl-Madsen takes the view that para. 3 applies also where two or more contracting states are parties to a multilateral treaty to which non-contracting states are also parties, but only as regards “rights acquired or in the process of acquisition in countries parties to the [Refugee] Convention”: Grahl-Madsen, Commentary, at 97. This is a sensible interpretation, as the mutuality of obligation to enfranchise refugees upon which para. 3 is based would exist in such circumstances. Robinson argues that para. 3 “refers only to rights which a refugee accumulated in a Contracting State where he first found asylum and which he would like to make use of in another such country [emphasis added]”: Robinson, History, at 127. While this was clearly the focus of concern to the drafters, there is no basis in the language adopted or purposes pursued to exclude a similar approach to, for example, social security entitlement acquired by a refugee in respect of work undertaken in a state party different from that in which he or she has established residence. See also Lester, “Article 24,” at 1076. Statement of Mr. Robinson of Israel, UN Doc. A/CONF.2/SR.11, July 9, 1951, at 5. This statement was made in response to a request from the Conference that Mr. Robinson review the drafting records of the Ad Hoc Committee on this point, and “enlighten the Conference at its next meeting”: Statement of the President, Mr. Larsen of Denmark, UN Doc. A/CONF.2/SR.10, July 6, 1951, at 24.

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asylum country, but also from any future arrangements which may come into force.354 No special measures are required to enfranchise refugees, since “[t]he intention of paragraph 3 of article [24] was, of course, to extend such benefits to refugees ipso facto, without any special provisions to that end.”355 States were, however, unwilling to undertake a comparable legal commitment where combined social security benefits should in principle be costshared with a state that is not a party to the Refugee Convention, including the refugee’s country of origin. In these circumstances, governments were prepared to agree only that, as a matter of principle,356 they would endeavor to provide refugees with the benefits stipulated under relevant social security agreements. Thus, paragraph 4 speaks to the situation of an individual who, having accumulated certain social security rights in his home country and having moved to another country which had a social security benefits agreement with the former, then renounced the protection of his country of origin and became a refugee. Under what circumstances the contractual right to the benefits accruing under the bilateral agreement would be forfeited was a matter that could only be determined by the parties to the agreement in the light of its letter and of its spirit. A State, granting asylum to a refugee of the nature just described, would, however, not be prevented from granting benefits of its own free will to a person towards whom it might have no contractual obligations. The purpose of paragraph 4 was to provide for such a contingency, but, unlike paragraph 3, it took the form, not of a binding provision but of a recommendation.357

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Speaking to his amendment, which was adopted by the Conference (UN Doc. A/CONF.2/ SR.11, July 9, 1951, at 7), the Belgian representative affirmed that his goal in proposing an amendment to para. 3 to include agreements “which may be concluded between them in the future” was “to enable refugees to benefit not only from existing social security measures, but also from any subsequent arrangements”: Statement of Mr. Herment of Belgium, ibid. at 6. Statement of Mr. Robinson of Israel, ibid. at 7. This clarification was offered in response to a question from the Belgian delegate who wished to know “whether [the Israeli] representative thought that the agreements referred to should become automatically applicable to refugees as soon as the Convention had been ratified”: Statement of Mr. Herment of Belgium, ibid. at 6. Upon receiving the quoted response from Mr. Robinson, the Belgian delegate “accepted the Israeli representative’s interpretation”: ibid. at 7. The fact that no specific mention of refugees in a relevant interstate agreement is required to enfranchise refugees does not, however, mean that the international agreement is automatically enforceable in domestic law. As Weis observes, “[w]hether the provision of [para.] 3 is self-executing depends on the national law of the Contracting State concerned. Where the provision is not self-executing, the Contracting State is obliged to take the necessary measures to extend the benefits of the agreement to refugees, be it by arrangement with the other Party to the agreement or by measures on the national level”: Weis, Travaux, at 192–193. The American representative referred to para. 4 as “merely a recommendation, [and therefore] . . . not [a matter] in respect of which a reservation was justified”: Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.38, Aug. 17, 1950, at 9. Statement of Mr. Robinson of Israel, UN Doc. A/CONF.2/SR.11, July 9, 1951, at 6.

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In contrast to the form in which it was proposed by the Ad Hoc Committee, paragraph 4 as adopted is not restricted only to agreements which may exist with a refugee’s country of origin,358 but extends also to agreements between the host country and any “non-contracting State.” Thus, for example, a refugee’s country of residence should make best efforts to secure additional social security benefits for the refugee based on work and social security contributions in a country of first asylum that is not a party to the Convention.359 Also in contrast to the Ad Hoc Committee’s approach, such efforts are expected to be made on behalf of all refugees similarly situated, not simply in individual cases.360 In sum, the general rule is that refugees lawfully staying in a state party are to be assimilated to that country’s citizens for purposes of entitlement to all forms of contributory social security. Indeed, refugees are entitled to better than national treatment where necessary to ensure that a social security death benefit is paid out to non-resident dependents. The major limitation on the right of refugees to national treatment in regard to social security involves the situation where a portion of the benefit due a refugee would ordinarily be paid at least in part by another country in which the refugee has accrued some measure of social security entitlement. Where there is no arrangement in place between the relevant governments to combine the entitlements to social security of persons who have worked and contributed in each jurisdiction, the refugee is entitled only to receive whatever benefits are owed under the domestic rules of the host country. On the other hand, where there is a cost-sharing arrangement in place between the refugee’s host state and the other country in which entitlement has accrued, the refugee should in principle receive the combined benefit. But if in fact the other country refuses to pay its share, the host state is liable to pay out only the part of the social security benefit to which the refugee is entitled under its domestic laws. This is so even if the citizens of the host country 358

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“The Contracting States will give sympathetic consideration to extending to individual refugees so far as possible the benefits of similar agreements which may have been concluded by such Contracting States with the country of the individual’s nationality or former nationality”: Ad Hoc Committee, “Second Session Report,” at 22. Indeed, Robinson sees this as the primary purpose of para. 4. “Para. 4 deals with rights accumulated in the refugee’s first country of asylum, a non-Contracting State, to be exercised in his second country of asylum, a Contracting State. In such instances the Convention does not impose on the Contracting State an obligation to treat the refugee as if he were a national of the non-Contracting State, but only recommends such a treatment to the parties to the Convention”: Robinson, History, at 127. The amendment approved by the Ad Hoc Committee occurred in response to the proposal of Mr. Robinson of Israel, UN Doc. A/CONF.2/SR.11, July 9, 1951, at 8–9: “[T]he Style Committee might consider the desirability of deleting the word ‘individual’ before the word ‘refugees’ in the second line of paragraph 4, particularly if there was any risk of the retention of that word leading to discrimination between one refugee and another.”

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would, in similar circumstances, receive a supplementary payment funded by the government to “top up” the domestic portion – thus amounting to a departure from the basic principle of Art. 24 that refugees should be afforded national treatment. The only circumstance in which a refugee is effectively insulated against the prospect of a reduced social security benefit based on the default of a country under an agreement for shared social security responsibility is where that other country is also a party to the Refugee Convention. If so, the host government must pay the refugee the whole of any combined benefit due to the refugee pursuant to its arrangement with the defaulting state, then rely on its right to seek redress from the defaulting government based on the latter’s duty to extend the benefit of the arrangement to refugees under Art. 24 of the Refugee Convention. Where, however, the defaulting government is not a party to the Refugee Convention (and therefore may not be legally required to extend the benefit of social security cooperation agreements to refugees), the host state is under no legal duty to make up the shortfall. Art. 24(4) encourages, but does not require, state parties to do what they can to assist refugees in such a predicament.

6.2 Professional Practice In Jordan, refugees and other non-citizens are barred from working in a number of fields, including law and accounting.361 While not outright barring non-citizens from practicing their professions, South Africa prohibits recruitment of professionals from its less developed neighbors, “officially out of an anti–brain drain principled position.”362 The difficulty in obtaining recognition of their professional qualifications has pushed most refugees into the South African informal labor market, where their skills are underutilized or irrelevant.363 Such refusals to allow refugees to work as professionals may have truly grave consequences – as when Turkey denied Iraqi Kurdish doctors permission to work in the Kurdish refugee camps.364 More generally, refugees with professional qualifications in the less developed world often confront generalized barriers on access to work by noncitizens365 – as is the case in Iran366 – or may be confined to camps or 361 362 364

365 366

R. Faek, “Syrian Refugees are Often Steered into Illegal Jobs,” Al-Fanar Media, Oct. 9, 2018. Zetter and Ruaudel, “Right to Work: Part II,” at 151. 363 Ibid. Initiative for Human Rights in Kurdistan, “Silence is Killing Them: A Report on the Situation of the Kurdish Refugees in Turkey” (1990), at 12. See Chapter 6.1 at notes 30–32. “[Refugees] can only engage in a limited number of occupations, a provision that clearly limits their options for employment. They are only permitted to work in 16 professional categories, including plaster manufacture, making acid for batteries, digging, brickmaking, laying asphalt and concrete, herding sheep, slaughtering animals, burning garbage, loading and unloading trucks, stone cutting, road building, mining, and farming. Most of these jobs are heavy manual labor, mainly menial and potentially dangerous jobs that have been selected based on labor market demands and to ensure that Afghans do not

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settlements where the opportunities for professional practice may simply not exist.367 For example, despite Sudan’s formal recognition of the right of refugees to work as professionals,368 restrictions on freedom of movement have hindered access to this right in practice.369 Some states of the developed world also bar non-citizens from engaging in certain professions, most commonly including the civil service and military, but sometimes including also the legal profession, judiciary, law enforcement, medicine, engineering, architecture, and teaching.370 France also prohibits noncitizens from working as veterinarians or public accountants.371 The Supreme Court of the United States has upheld bars on the employment of non-citizens as public school teachers,372 police officers,373 and deputy probation officers,374 but struck down citizenship requirements for lawyers, engineers, and notaries.375 EU states grant refugees automatic access to regulated professions if they have been licensed by states of the Union, but not otherwise.376

367 368

369 370

371

372 373 374 375

376

take jobs away from Iranian citizens. Refugees found working in unauthorized occupations are considered to have violated the terms of their refugee status under the Amayesh system and could be subject to deportation to Afghanistan. However, in practice a number of refugees engage in business activities and are employed in jobs other than those stated on their work permits”: Zetter and Ruaudel, “Right to Work: Part II,” at 115. See Chapter 5.2 at notes 286–290. Section 13(2)(d) of the Asylum (Organisation) Act 2014, cited in Zetter and Ruaudel, “Right to Work: Part II,” at 162–163. Ibid. at 162, 164. UNHCR, “Information Note on Implementation of the 1951 Convention and the 1967 Protocol relating to the Status of Refugees,” UN Doc. EC/SCP/66, July 22, 1991, at [82], [84]. Other professions limited to French nationals include civil servants, solicitors, lawyers, court bailiffs, and tobacco dealers: I. Martin et al., “From Refugees to Workers: Mapping Labour-Market Integration Support Measures for Asylum Seekers and Refugees in EU Member States: Volume II – Literature Review and Country Case Studies,” Bertelsmann Stiftung, 2018 (Martin, “Mapping Labour-Market Integration Support Measures”), at 54. Moreover, “a number of occupations – including medical professions, travel agents, and funeral directors – are regulated (reglementées), that is their practice is conditional on authorization from a professional association (ordre professionnel) and to a diploma obtained in France. If a refugee wants to practice one of these professions, he/she has either to retake the diploma in France or to pass a test”: ibid. Ambach v. Norwick, 441 US 68 (US SC, Apr. 17, 1979). Foley v. Connelie, 435 US 291 (US SC, Mar. 22, 1978). Cabell v. Chavez-Salido, 454 US 432 (US SC, Jan. 12, 1982). In re Griffiths, 413 US 717 (US SC, June 25, 1973), re lawyers; Examining Board of Engineers v. Flores de Otero, 426 US 572 (US SC, June 17, 1976), re engineers; Bernal v. Fainter, 467 US 216 (US SC, May 30, 1984), re notaries public. Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications established the principle that qualifying architects, dentists, doctors, midwives, nurses, pharmacists, and veterinary surgeons are entitled to practice their profession in the EU member state of their choice: Directive 2013/ 55/EU of the European Parliament and of the Council of 20 November 2013 amending Directive 2005/36/EC on the recognition of professional qualifications.

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Even where formal bars do not exist, the nearly universal practice of professional accreditation poses a significant barrier in practical terms for refugees who wish to resume their professional life in an asylum state. Professions may refuse to recognize certifications obtained outside the reception country, require substantial apprenticeship in the host state, subject foreign-trained individuals to certification examinations not required of citizens, or require that candidates be licensed in the particular discipline in their country of origin – effectively excluding applications from refugees whose home states did not regulate their profession.377 The result of these many requirements is that professional refugees “often cannot practice because there is no equivalence of degrees and qualifications, and they experience severe downward social mobility.”378 By way of example, while Australia permits resettled Iraqi and Syrian refugees to work, dentists, engineers, pharmacists, and other professionals have faced “two key employment issues: the recognition of qualifications, and the catch-22: they need Australia employment experience before they can get a job in Australia, but they first need that job to get that experience.”379 Despite a growing shortage of doctors, most medical licenses obtained overseas are not recognized in the United States; instead, refugee doctors with years or even decades of experience must study for costly exams and compete with graduates of US medical schools for first-year residency slots.380 In principle, states of the European Union have committed themselves to “ensure equal treatment between beneficiaries of international protection and nationals in the context of the existing recognition procedures for foreign diplomas, certificates and other evidence of formal qualifications.”381 They have moreover agreed to “endeavour to facilitate full access for beneficiaries of international protection who cannot provide documentary evidence of their qualifications to appropriate schemes for the assessment, validation and accreditation of their prior learning.”382 Yet in practice European states have taken a variety of approaches to the recognition of refugee qualifications obtained overseas: Italy requires original certificates for professional qualifications originating outside the EU,383 Belgium offers validation for only a few occupations and may require additional training prior to accessing the job market,384 and Hungary conducts

377 378 379

380 381 383 384

P. Cumming, Access: Task Force on Access to Professions and Trades in Ontario (1989). D. Joly, Refugees: Asylum in Europe? (1992), at 58. B. Doherty, “‘The Catch-22’: Refugees to Australia Struggle to Find Work,” Guardian, Mar. 19, 2018. M. Nedelman, “Why Refugee Doctors become Taxi Drivers,” CNN, Aug. 9, 2017. EU Qualification Directive (2011), at Art. 28(1). 382 Ibid. at Art. 28(2). Zetter and Ruaudel, “Right to Work: Part II,” at 72–73. “European Employment Policy Observatory Synthesis: Challenges Faced by Asylum Seekers and Refugees in Successfully Integrating into the Labour Market,” European Employment Policy Observatory, May 2016, at 16.

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recognition of foreign qualifications in Hungarian and “requires a relatively high level of command of the language.”385 Aware of the barriers such requirements present, some states have taken affirmative steps to assist their refugee populations to overcome them. Sweden, for instance, has instituted a “fast track” program to facilitate accelerated access of refugees to targeted industries and occupations experiencing labor shortages – including social scientists, teachers, health and medical professionals, and pharmacists.386 Scotland provides English and medical courses, as well as professional placements with practitioners and hospitals.387 The United Kingdom similarly provides a “bridging program” designed to facilitate the integration of refugee doctors into the UK medical profession.388 Since 2012 Germany has required not only timely evaluations of foreign credentials, but also “‘a written positive assessment of skills and qualifications’ in cases where formal recognition is not possible. Both regulated and non-regulated professions are covered by this system. As part of the law, other means can be used to assess the credentials of refugees who lack documents (through no fault of their own), such as ‘assessment tests, expert interviews, and practical and/or theoretical tests.’”389 Similarly, Norway’s centralized foreign credentials assessment program, through which refugees’ backgrounds and qualifications are reconstructed by experts in the relevant fields, has attracted international acclaim for its ability to facilitate the return to their professions of those without verifiable licenses or other documentation.390 Refugee Convention, Art. 19 Liberal Professions 1. Each Contracting State shall accord to refugees lawfully staying in their territory who hold diplomas recognized by the competent authorities of that State, and who are desirous of practising a liberal profession, treatment as favourable as possible and, in any event, not less favourable than that accorded to aliens generally in the same circumstances. 385 386

387

388

389

390

Ibid. “Engaging with Employers in the Hiring of Refugees,” UNHCR and OECD (2018), at 15; see also Sweden Ministry of Employment, “Fast Track – A Quicker Introduction of Newly Arrived Immigrants,” www.government.se/articles/2015/12/fast-track---a-quicker-intro duction-of-newly-arrived-immigrants/, accessed Mar. 5, 2020. C. Nye and J. Furst, “The Refugee Doctors Learning to Speak Glaswegian,” BBC, Sept. 6, 2017. See UK Refugee Council, “Refugee Health Professionals – Building Bridges Programme: PLAB and Clinical Attachment Project for Refugee Doctors,” www.refugeecouncil.org.uk /what_we_do/refugee_services/refugees_into_jobs/refugee_health_professionals/, accessed Mar. 5, 2020. B. Loo, “Recognizing Refugee Qualifications: Practical Tips for Credential Assessment,” World Education Services, May 2016, at 6. Ibid. at 18–19.

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2. The Contracting States shall use their best endeavours consistently with their laws and constitutions to secure the settlement of such refugees in the territories, other than the metropolitan territory, for whose international relations they are responsible. It seems clear that the Secretary-General’s draft of what became Art. 19 was motivated by a genuine concern for the predicament of refugees who found themselves in reception states where they could not exercise the only livelihood familiar to them: Access to the liberal professions, which are the most highly regulated of all and generally speaking, overcrowded in European countries, is, in principle, barred to foreigners. Where, however, treaty provisions exist, these professions are open to foreigners to some extent. It should be noted that there is a high proportion of members of the liberal professions among the refugees, including qualified and experienced scientists, engineers, architects and doctors holding diplomas equivalent to those required in the reception country. Such professional men, moreover, are not suited to any other occupation than their own.391

It was therefore recommended that professionally qualified refugees be assimilated to most-favored foreigners, allowing them access to at least those professional opportunities open to the citizens of partner and other closely affiliated countries.392 The drafters, however, showed little enthusiasm to guarantee even this fairly narrow opportunity for refugees to have privileged access to professional practice. To begin with, they decided not to work from the Secretary-General’s proposal for Art. 19, but instead to base their drafting on a proposal from the French government. The latter did not recommend most-favored-national treatment, but stipulated simply that governments would provide refugees with “as favourable treatment as possible” in accessing the professions.393 The only concession made by France was that whatever treatment was granted would “be in no case inferior to the treatment afforded to foreigners generally.”394 This approach was contrary to the advice of the Secretary-General, who had noted that granting refugees only the same access to professions as aliens generally “would in practice be of little help to refugees, since in point of fact access to the professions is normally only accorded to foreigners – and even then with reservations – by virtue of treaty provisions.”395 The International Refugee Organization also opposed the 391 392

393 394 395

Secretary-General, “Memorandum,” at 35–36. The Secretary-General recognized that the alternative would be simply to grant refugees the same treatment as afforded aliens generally, but warned against that approach: ibid. at 36. France, “Draft Convention,” at 6–7. Statement of Mr. Rain of France, UN Doc. E/AC.32/SR.13, Jan. 26, 1950, at 16. Secretary-General, “Memorandum,” at 36.

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“aliens generally” standard, arguing that “[i]n countries where the rights of aliens . . . depend on reciprocity arising out of treaty arrangements it is doubtful that the formula as it now stands would ensure any rights for refugees”396 – a concern borne out, for example, by Iran’s policy of limiting refugees to working in the same, largely manual labor-focused and often dangerous, jobs as other noncitizens.397 In what can only be described as an extraordinary contrast with discussion of the appropriate contingent standard for access to wage-earning employment,398 no state representative at any stage of the drafting process advocated moving beyond the baseline (“aliens generally”) standard of treatment. As the Chairman of the Ad Hoc Committee observed, “there was no question of according refugees the most favourable treatment given to foreigners by virtue of treaties, but merely the most favourable treatment possible”399 – meaning that the European Union’s failure to extend the special rights of EU-accredited professionals to refugees400 is not presumptively at odds with the Art. 19 duty. Much less was there any interest in giving refugees the same rights as citizens to practice a profession: the Conference of Plenipotentiaries even rejected an Egyptian amendment that would have made explicit that refugees were not entitled to access professions reserved for citizens on the grounds that “it might be dangerous to refer to rights which could be covered by special regulations . . . inasmuch as it might suggest to States the possibility of taking such action in respect of refugees.”401 As the Belgian representative to the Conference of Plenipotentiaries concluded, “the draft Convention gave refugees [only] the status of aliens”402 with regard to the right to engage in professional practice. The duty to assimilate refugees only to aliens generally requires, however, that if access to professional practice is only formally reserved for citizens (or subject to reciprocity arrangements) but in fact is generally granted to non-citizens, such access must be extended also to refugees.403 On the other hand, the “treatment as favourable as possible” component of Art. 19 does require state parties at least to give consideration in good faith to the non-application to refugees of limits generally applied to aliens.404 This is, 396 398 399

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United Nations, “Compilation of Comments,” at 39, 45. 397 See text at note 366. See Chapter 6.1.1 at note 121. Statement of the Chairman, Mr. Chance of Canada, UN Doc. E/AC.32/SR.13, Jan. 26, 1950, at 17. See text at note 376. Statement of Mr. Hoare of the United Kingdom, UN Doc. A/CONF.2/SR.9, July 6, 1951, at 21. Statement of Mr. Herment of Belgium, ibid. at 21. 403 See Chapter 3.2.1. Ibid. at note 256. There is therefore “an obligation for states to make a positive effort to minimize the restrictions imposed on refugees wishing to practice their profession”: UNHCR Bureau for Europe, “Integration Rights and Practices with Regard to Recognised Refugees in the Central European Countries,” (2000) 5(1) European Series (UNHCR Bureau for Europe, “Integration Rights”), at 69.

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of course, only an obligation of process, not a duty of result405 – meaning that Art. 19 provides no clear right of access to professional practice to refugees in asylum states where only nationals (or privileged non-citizens) are authorized to work as professionals.406 But the duty of states to give good faith consideration to exemption of refugees from general constraints on the ability of noncitizens to undertake professional work means that any application to refugees of the rules applicable to non-citizens generally must be based on a decision that is carefully reached and justified – calling into question, for example, Jordan’s decision simply to extend to refugees the general bar on non-citizens engaging in such professions as law and accounting407 and France’s refusal to let refugees work as accountants or veterinarians.408 It might even be suggested that Sudan’s formal recognition of the right of refugee professionals to work knowing that other laws would deny them the freedom of movement needed actually to undertake such professional work409 fails the “good faith” requirement. The bar for good faith consideration will, of course, be especially high where, as in Turkey,410 refugees were in urgent need of medical assistance that the host state did not provide them.411 And because it is a duty to consider the question in good faith, even a real concern – such as South Africa’s laudable policy not to encourage a brain drain of professionals from neighboring states412 – must be implemented in a rational and proportionate way, recognizing the real needs of refugee professionals left with no choice but to flee their home countries. Decisions of the kind taken in England,413 Scotland,414 and Sweden415 to ease or facilitate the ability of refugee professionals to work in their fields of expertise via fast track or bridging programs, in contrast, exemplify not only good faith consideration of the refugee professionals’ plight, but a smart and principled response to it. The Refugee Convention provides no more than minimal relief from the most common impediment faced by non-citizens wishing to engage in 405

406

407 410 411

412 415

As the Chinese representative insisted, “the provisions of article [19] as proposed by France had been applied in China already. It had done so of its own free will, but would hesitate to accept such provisions if they were imposed on it by a convention”: Statement of Mr. Cha of China, UN Doc. E/AC.32/SR.13, Jan. 26, 1950, at 17. It is therefore an overstatement to suggest that “refugees should be accorded a special dispensation from the restrictions on employment often imposed on aliens, and granted in principle the same rights as regards . . . liberal professions as permanent residents or nationals”: R. da Costa, “Rights of Refugees in the Context of Integration: Legal Standards and Recommendations,” UNHCR Legal and Protection Policy Research Series Doc. POLAS/2006/02, June 2006 (da Costa, “Rights of Refugees in the Context of Integration”), at 57. See text at note 361. 408 See text at note 371. 409 See text at note 368. See text at note 364. Given the failure of the host states to provide medical attention in truly extreme cases, it is also likely that Turkey breached Art. 12 of the Economic Covenant: see Chapter 4.4.3. See text at note 362. 413 See text at note 388. 414 See text at note 387. See text at note 386.

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a profession, that being the need to meet often quite exacting standards for licensing or accreditation.416 These rules are frequently administered by professional associations authorized by the government to regulate access to professional life. A non-citizen wishing to continue his or her professional life in a new country may be required to meet a variety of standards, including possession of particular academic qualifications, a positive assessment of experience or standing in the applicant’s home country, and satisfactory completion of a period of local training or testing417 – for example, Belgium’s requirement of additional training before a professional may access the job market,418 or the US insistence that refugee and other foreign doctors undertake residencies before being allowed to practice.419 The drafters of the Refugee Convention recognized that not all accreditation requirements were really designed to protect the public interest. Indeed, the Chairman of the Ad Hoc Committee candidly conceded that “in the United Kingdom and Canada liberal profession bodies admitted holders of local diplomas only . . . [T]hat was because they wished to maintain a certain level of tradition . . . [I]t was true, of course, that such a requirement reflected too rigid a spirit of exclusiveness.”420 But in contrast to the approach taken to wage-earning employment,421 the drafters showed no interest in exempting refugees from even accreditation requirements designed simply to avoid competition with domestic professionals.422 To the contrary, they made access to 416

417

418 420

421 422

“Given the difficulties usually faced by refugees in gaining access to the liberal professions in their country of asylum, [Art. 19] is not considered particularly helpful, not least because it sets a low minimum standard of treatment and leaves the recognition of their qualifications at the discretion of the state concerned”: UNHCR Bureau for Europe, “Integration Rights,” at 70. “There is no denial of the right [to work] where a person does not satisfy the inherent requirements of a job, or meet other objective criteria such as considerations of security”: Saul, ICESCR Commentary, at 280. There is, however, some room for challenge since “[e]ven if the regulation [regulating access to professional practice] is rational, if it is so invasive that it constitutes a material barrier to the right to practise the profession, the regulation will be an infringement of that right”: Jayawickrama, Judicial Application, at 1011. See text at note 384. 419 See text at note 380. Statement of the Chairman, Mr. Chance of Canada, UN Doc. E/AC.32/SR.13, Jan. 26, 1950, at 16. See Chapter 6.1 at note 100 ff. “The Italian Government could not agree to a clause which might aggravate the existing internal situation caused by over-population and unemployment”: Statement of Mr. Theodoli of Italy, UN Doc. E/AC.32/SR.37, Aug. 16, 1950, at 20. Earlier, the French representative had similarly remarked “that the question gave rise to grave difficulties in France where there was a considerable number of refugees belonging to the liberal professions . . . It should be understood that there were two types of interests: on the one hand, national interests which tended to reserve for some nationals exclusively, or to a very large extent, the exercise of liberal professions; on the other hand, the material interests of persons exercising those professions who were stubbornly defending their

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Art. 19 rights contingent on the refugee possessing a “diploma[] recognized by the competent authorities of [the host] state,”423 thereby sanctioning the practice in many states of leaving such decisions to the professional bodies themselves. More generally, they adopted language under which Art. 19 rights inhere in “refugees . . . desirous of practising a liberal profession” in order to signal that the mere possession of formal qualifications could under no circumstance give rise to an international legal entitlement to engage in professional life:424 [T]he form of words was vague, but . . . it should remain so. The Committee was faced with two separate considerations: on the one hand, the recognition of diplomas and, on the other, the exercise of the professions. In Belgium a foreigner could practise medicine if he held a Belgian diploma or a diploma recognized as equivalent; on the other hand, no foreigner, no matter what his diploma, was allowed to practise as a lawyer.

423

424

positions. It was the Committee’s duty to see that States accorded refugees the most favourable treatment possible provided it did not conflict with national interests”: Statement of Mr. Rain of France, UN Doc. E/AC.32/SR.13, Jan. 26, 1950, at 17–18. It was clarified, however, that the refugee need not arrive in the asylum state with a relevant diploma in order to benefit from Art. 19, but could invoke his or her rights once in possession of a diploma acquired in the host country or elsewhere: Statement of Mr. Cuvelier of Belgium, UN Doc. E/AC.32/SR.13, Jan. 26, 1950, at 16. The duty of state parties under Art. 25 (see Chapter 4.10) may also be invoked to secure the assistance of the asylum state to “provide refugees with facilitated access to the liberal professions through for example the provision of documents verifying education and qualifications”: UNHCR, “Draft comments on the draft General Comment on the Right to Just and Favourable Conditions of Work,” May 2015, at [17]. This duty is important because refugees “may have had to leave their personal belongings and papers behind. There may be no way to communicate safely with the institution(s) where their qualifications were earned, or relevant files and archives may have been destroyed in acts of war or violence”: UNHCR, “Note on the Integration of Refugees in the European Union,” May 2007, at [27]. The UNHCR’s Executive Committee accordingly employed hortatory language in which it “encourages States, wherever possible, to recognize the equivalency of academic, professional and vocational diplomas, certificates and degrees acquired by refugees prior to entry into the host country”: UNHCR Executive Committee Conclusion No. 104, “Local Integration” (2005), at [(m)(iii)]. As such, it is not correct that the “shall accord” language of Art. 19 gives refugees “the right to have their diplomas recognized and to practice in the liberal professions. This is not a discretionary provision, but a binding treaty obligation”: A. Edwards, “Article 19,” in A. Zimmermann ed., The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary 983 (2011) (Edwards, “Article 19”), at 987; see also da Costa, “Rights of Refugees in the Context of Integration,” at 55 (“[A] diploma may be required and must, in that case, be recognized by the receiving State”). To the contrary, the object of the “shall accord” language is simply “treatment as favourable as possible,” not a duty of result. In light of its object and purpose, Art. 19 grants refugees a right to the assessment in good faith of their professional qualifications, but not a right to practice a liberal profession as such – as Edwards herself later acknowledges: ibid. at 989.

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It would be impossible therefore to adopt a definite form of words, as it could not be applied to all cases.425

At best, some value was secured by the obligation to assimilate refugees to aliens generally “in the same circumstances,” which requires those undertaking an examination of professional qualifications to exempt refugees from general requirements which the refugee’s particular circumstances render effectively insurmountable.426 The duty to exempt refugees from general requirements which the particular circumstances of refugeehood make unrealistic means that a state which ordinarily requires proof that a non-citizen has been licensed in his or her discipline in the country of origin would be required to waive this requirement in the case of a refugee forced to flee from a state in which no system of professional regulation exists, or where professional registration was not open to the refugee for reasons related to his or her need for protection.427 It thus raises questions about the legality of Italy’s requirement of original professional certificates from refugees,428 and even more clearly about Hungary’s insistence on a high level of fluency in the Hungarian language for any form of professional accreditation.429 In contrast, the European Union’s decision to grant refugee professionals equality of treatment in procedures for the recognition of credentials as well as assistance where relevant documentation is lacking,430 Germany’s innovative system for the alternative assessment of professional qualifications for refugees and others lacking documents by means of assessment tests, expert interviews, and practical or theoretical tests,431 and Norway’s centralized credential assessment program that reconstructs refugees’ professional backgrounds and qualifications432 are examples of action that is very much in accord with the spirit of the “in the same circumstances” dispensation required by Art. 19. As if these several constraints were not enough, it was ultimately determined that Art. 19 could not be invoked by a refugee until he or she is “lawfully staying” in the territory of a state party. Interestingly, neither of the original drafts proposed any delay in the right to access professional practice based on attachment.433 The report of the first session of the Ad Hoc Committee, 425

426 427

428 431 433

Statement of Mr. Cuvelier of Belgium, ibid. at 18. The Chairman of the Ad Hoc Committee immediately concurred, noting that he “also thought that it was impossible to adopt a more definite formula; the High Contracting Parties should simply be invited to do their best to make the most liberal provisions possible”: Statement of the Chairman, Mr. Chance of Canada, ibid. See Chapter 3.2.3. UNHCR has sensibly encouraged states to employ “flexible assessment measures to refugee qualifications”: UNHCR, “Note on the Integration of Refugees in the European Union,” May 2007, at [30]. See text at note 383. 429 See text at note 385. 430 See text at note 381. See text at note 389. 432 See text at note 390. The drafts prepared by the Secretary-General and by France simply granted Art. 19 rights to “refugees” without qualification: Secretary-General, “Memorandum,” at 35; France, “Draft Convention,” at 6.

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however, limited professional practice to refugees “lawfully resident in their territory.”434 The only substantive debate on this question occurred at the Committee’s second session, where it was provisionally agreed to revise the level of attachment downward simply to “lawfully in their territory”435 in order to ensure that the right could be invoked by “persons entering a territory even for a few hours, provided that they had been duly authorized to enter.”436 As the American representative insisted, “his delegation wished to cover all refugees for however short a time they were lawfully in a territory.”437 Under this approach, Art. 19 could have been invoked, for example, by “a German refugee lawyer who periodically traveled from Sweden to Denmark to give consultations in a hotel for a period of three hours.”438 In the end, however, the more restrictive view prevailed. While not formally debated there, the Conference of Plenipotentiaries reversed the Ad Hoc Committee’s approach, deciding that Art. 19 rights would accrue only once a refugee is “lawfully staying” in a state party. In adopting this level of attachment, the Conference was probably influenced by the French view that the purpose of Art. 19 should be “to protect refugees residing in foreign territory, not merely staying there for a few hours.”439 But the more exacting level of attachment adopted allows the right of professional practice to be denied not only to refugees present on a short-term basis, but also to most refugees awaiting the results of their refugee status claim and to refugees present in a state which opts not to assess refugee status,440 at least until an ongoing presence is established in practical terms by the passage of time.441 It is therefore difficult to see Art. 19 as having any significant positive value for refugees. If no specific rule on access to the liberal professions had been included in the Refugee Convention, the ability of refugees to work in a professional capacity would presumably have been regulated by either the rule on self-employment, or by that dealing with wage-earning employment. Either of these approaches would have been more beneficial to refugees. Under Art. 18’s provisions on self-employment, the refugee professional would have received no better standard of treatment than that now granted by Art. 19 (“treatment as favourable as possible and, in any event, not less favourable than that accorded to aliens generally in the same circumstances”), but that right 434 435 436

437 438 439 441

Ad Hoc Committee, “First Session Report,” at Annex I. Ad Hoc Committee, “Second Session Report,” at Annex I. Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.41, Aug. 23, 1950, at 14. The Chairman gave the example of “a person travelling through a country on his way back to his own country” who would be lawfully in the country of transit, and therefore entitled to exercise his or her profession there: Statement of the Chairman, Mr. Larsen of Denmark, ibid. at 15. Statement of Mr. Henkin of the United States, ibid. at 15. Statement of the Chairman, Mr. Larsen of Denmark, ibid. at 18. Statement of Mr. Juvigny of France, ibid. at 15. 440 See Chapter 3.1.3. See Chapter 3.1.4 at note 211.

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would have accrued at an earlier point in time, namely when the refugee was simply “lawfully in” (rather than “lawfully staying” in) a state party.442 If, on the other hand, the refugee professional’s right to work had been governed by Art. 17’s general rules on wage-earning employment, he or she would have been faced with the same contingent standard as that which governs Art. 19 (“lawfully staying”), but once qualified he or she would at least have been entitled to a higher standard of treatment, namely assimilation to the nationals of most-favored countries.443 Under Art. 19, in contrast, the refugee professional is faced with the worst of both worlds: the point at which entitlement accrues is significantly delayed, and the right which is ultimately received is of little value. In pith and substance, then, Art. 19 is most appropriately understood not so much as a source of refugee entitlement, but as a clawback provision444 directed to a subset of refugees who would otherwise have been able to invoke the more generous provisions of either Art. 17 on wage-earning employment or Art. 18 on self-employment.445 The disinterest of the drafters in committing themselves to the meaningful enfranchisement of refugee professionals is perhaps most clear from the second paragraph of Art. 19, requiring governments to “use their best endeavours”446 to secure the resettlement of professionally qualified refugees in affiliated territories. This approach seems to have been considered something of a “win–win” approach for both refugees447 and their host countries: 442 444

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446 447

See Chapter 5.3. 443 See Chapter 6.1. Edwards’ contention that “there appears to have been no intention on the part of the drafters of Art. 19 for it to operate in the manner suggested by Hathaway” (Edwards, “Article 19,” at 985) ignores the decisions taken by the drafters both to refuse to adopt the Secretary-General’s “most favoured foreigner” contingent standard (see text at note 392) that applies to wage-earning employment and to limit the right to practice a profession to refugees “lawfully staying” rather than simply to refugees “in” their territory as governs the right to self-employment. In any event, the point made here is not that there is evidence of mala fides, but simply that the article as adopted clearly disadvantages refugee professionals relative to the treatment they would have received under either of the other two Convention provisions on work rights (and that would have applied absent Art. 19) and is therefore in substance a clawback of rights that would otherwise have been owed. Robinson reaches a comparable conclusion, at least in part. “It will make little difference (except for the diploma) whether a person is labelled a ‘professional’ or ‘self-employed’ because the treatment is the same. But it would make a considerable difference if he were classified as wage-earner instead of professional or vice versa”: Robinson, History, at 118. The first part of Robinson’s conclusion is, for reasons set out above, not accurate: the fact that self-employment rights accrue at a lower level of attachment than does the right to practice a liberal profession is a significant difference in many cases, e.g. refugees awaiting the results of status verification or present in a country that does not formally verify refugee status. “It is an obligation of process, rather than result”: Edwards, “Article 19,” at 989. Edwards is, however, right to observe that “it is noticeable that this provision does not appear to provide for any degree of choice or autonomy on the part of the refugee,” though

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Many countries were under pressure not to admit to their metropolitan territories refugees who might compete with professional workers resident there. In some colonial areas, however, there was an urgent need for qualified persons, and nationals of the metropolitan country were often reluctant to respond to that need. Colonial Governments which would not be willing to give refugees the opportunity of gainful employment in their profession in the metropolitan country might be quite prepared to send them into overseas territories.448

While the drafters rejected both a British effort to delete the paragraph altogether449 and a French effort to frame Art. 19 as no more than vaguely hortatory,450 not even this part of Art. 19 provides professional refugees with any significant benefit. First, the duty under Art. 19(2) is really only to do whatever can already be done under the asylum country’s own laws and policies.451 While even the Secretary-General’s draft did not attempt to require resettlement other than in accordance with national laws,452 the British government persuaded governments to narrow the duty to require only such efforts as are “consistent[] with their laws and constitutional practices.”453 This language was further modified to refer simply to consistency with national laws and “constitutions” in order to make clear that no effort at odds with “constitutional usage”454 would be

448

449

450

451

452 453

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subsequently codified human rights norms would likely require the refugee’s consent: ibid. at 990. Statement of Mr. Robinson of Israel, UN Doc. E/AC.32/SR.14, Jan. 26, 1950, at 3. See also Statement of Mr. Guerreiro of Brazil, ibid., who “agreed that the need for such qualified workers justified the settlement in colonial areas of refugees practising liberal professions.” The British concern was that the duty amounted to an intrusion on the autonomy of subordinate territories: Statements of Sir Leslie Brass of the United Kingdom, UN Doc. E/ AC.32/SR.13, Jan. 26, 1950, at 19; and at UN Doc. E/AC.32/SR.14, Jan. 26, 1950, at 2. The original language of the Secretary-General’s proposal (Secretary-General, “Memorandum,” at 35) required governments to “promote” resettlement, while a much softer approach was taken in the French draft (France, “Draft Convention,” at 7), namely “as far as possible [to] facilitate” resettlement. The United States then advanced an intermediate view, under which the duty would have been to “encourage” resettlement: Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.13, Jan. 26, 1950, at 20. While this proposal was adopted by the Ad Hoc Committee, ibid., the language used by the Ad Hoc Committee is based on the subsequent suggestion of the representative of the United Kingdom that governments commit themselves to “use their best endeavours . . . to secure the settlement of such refugees”: Statement of Sir Leslie Brass of the United Kingdom, UN Doc. E/AC.32/SR.14, Jan. 26, 1950, at 2, adopted by the Committee, ibid. at 4. “It imposes upon [states] the moral obligation to try to secure such employment but only within the limits of existing legislation and the special rules governing the rights of the Contracting State in the dependent territory”: Robinson, History, at 118. Secretary-General, “Memorandum,” at 35. Statement of Sir Leslie Brass of the United Kingdom, UN Doc. E/AC.32/SR.14, Jan. 26, 1950, at 2. Statement of Mr. Cuvelier of Belgium, ibid. at 3. This understanding was agreed to by the proponent of the amendment, Sir Leslie Brass of the United Kingdom, ibid. at 4.

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expected. These changes were based on concern that “care should be taken not to offend the local authorities”455 who in most cases were said to enjoy substantial autonomy in making immigration decisions. In the end, the duty of state parties under Art. 19(2) is really only to “do their best to convince the administrations of overseas territories that it [is] in their interest to attract refugees belonging to the liberal professions.”456 Second, this duty to attempt to persuade does not apply to all subordinate territories of a state party. The broad approach taken by the Ad Hoc Committee,457 based on the Secretary-General’s rather expansive list of the entities which state parties should seek to influence,458 was significantly constrained by the Conference of Plenipotentiaries. In keeping with the understandable concern not to infringe the autonomy of administrators in subordinate territories, Art. 19(2) was reframed to refer only to a duty to exercise influence in relation to “territories for whose international relations [the state party is] responsible.”459 Even this formula was narrowed, based on British unwillingness to promote the establishment of professional refugees in subordinate territories located near to the state party, and from which they might pose a competitive threat to nationals. Specifically, the British representative objected to any duty which might see more refugee professionals in “adjacent territories, like the Channel Islands, where the settlement of [professional] refugees must of necessity be governed by the same conditions as those obtaining in the United Kingdom itself.”460 The text as agreed therefore sets no duty to promote the settlement of refugee professionals in even dependent territories which might broadly be considered part of the state party’s “metropolitan territory.” In sum, and despite its recent characterization by the UK Supreme Court as an “exceptional privilege,”461 Art. 19(2) is really no more than a minimalist form of compensation for the exclusion of refugee professionals from the benefit of the usual rules on either self-employment or wage-earning employment. It imposes only a duty to exercise suasion in line with existing national laws and constitutional usage, taking account in particular of the largely autonomous authority which many dependent territories enjoy over 455

456 457

458

459 460 461

Statement of Mr. Rain of France, UN Doc. E/AC.32/SR.13, Jan. 26, 1950, at 20. See also Statement of Sir Leslie Brass of the United Kingdom, ibid. at 19. Statement of Mr. Rain of France, ibid. at 20. The obligation of states was to encourage the resettlement of professional refugees to “colonies, protectorates or in Trust Territories under their administration”: Ad Hoc Committee, “Second Session Report,” at 20. The original proposal extended to “colonies, protectorates and overseas territories, and . . . mandated or trust territories”: Secretary-General, “Memorandum,” at 35. Statement of Mr. Rochefort of France, UN Doc. A/CONF.2/SR.34, July 25, 1951, at 24–25. Statement of Mr. Hoare of the United Kingdom, ibid. at 25. R (Tag Eldin Ramadan Bashir) v. Secretary of State for the Home Department, [2018] UKSC 45 (UK SC, July 30, 2018), at [86].

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immigration. Even that duty of process applies only to those dependent territories whose international relations are under the authority of the state party, and which are not sufficiently proximate to the main territory of the state party to be considered part of its metropolitan territory. There are potentially three means by which the rather bleak implications of Art. 19 may be challenged, or at least avoided. First, the limits of Art. 19 do not speak to all refugee professionals, but only to refugees who wish to practice a “liberal profession.” While the notion of a “profession” as a branch of work is itself rather vague,462 there is even less consensus on which professions may be said to be “liberal.” Under the Secretary-General’s proposal, for example, the term included, at a minimum, “qualified and experienced scientists, engineers, architects and doctors.”463 The drafters referred to lawyers and medical doctors as examples of persons who exercise a liberal profession,464 but otherwise did not elucidate the term. Robinson, Weis, and Grahl-Madsen agree on a list of six liberal professions – physicians, dentists, veterinarians, lawyers, engineers, and architects – but otherwise disagree on the ambit of the term.465 As a general principle, Grahl-Madsen suggests a fairly generous understanding of a liberal profession, focusing on two basic criteria. First, a “profession” is a type of work which requires formal qualification “normally confirmed by a diploma from a university, or a similar institution, or a licence from a State agency, a chartered society or some other legally competent body allowing him to practise.”466 Second, a “liberal” profession is one in which the individual “acts on his own, not as an agent of the State or as a salaried employee.”467 As he clearly insists, it would not make sense to classify an individual as a member of a liberal profession if, despite the possession of relevant formal qualifications, the work he or she proposes to undertake is not characterized by the independence of action which marks a liberal profession. 462

463 464

465

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For example, a profession may be defined simply as “a paid occupation, especially one involving training and a formal qualification”: Concise Oxford Dictionary 11141 (10th edn, 2002). Secretary-General, “Memorandum,” at 36. See e.g. Statements of Mr. Cha of China, UN Doc. E/AC.32/SR.13, Jan. 26, 1950, at 17; Mr. Cuvelier of Belgium, ibid. at 18; and the Chairman, Mr. Larsen of Denmark, UN Doc. E/AC.32/SR.41, Aug. 23, 1950, at 18. Specifically, Robinson and Weis would add pharmacists and artists to the list of liberal professions, in at least some circumstances; Weis and Grahl-Madsen would include accountants; Robinson alone would include teachers; and Grahl-Madsen alone would treat interpreters and translators as members of a liberal profession: Robinson, History, at 118; Weis, Travaux, at 158; and Grahl-Madsen, Commentary, at 78. Weis would also include the salaried assistants to members of a liberal profession as liberal professionals themselves, while Grahl-Madsen would do so only if there are certain qualifications set by the state for undertaking such work: Weis, Travaux, at 158; Grahl-Madsen, Commentary, at 78–79. Grahl-Madsen, Commentary, at 78. 467 Ibid.

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Thus, “certain holders of academic diplomas are excluded from the application of the term, e.g. the clergy, judges, teachers, [and] scientists.”468 Grahl-Madsen’s relatively broad definition of a liberal profession was likely inspired by his desire to read Art. 19 in a way that would allow professional refugees “to receive the benefit of Article 19.”469 However, since Art. 19 is more accurately understood not as conferring a substantive benefit, but rather as limiting access to more generous rights which would otherwise accrue under Arts. 17 or 18, the human rights context of the Refugee Convention actually argues against giving this exception a broad reading. Helpful guidance on a somewhat more constrained approach to the definition of a “liberal profession” has been provided in a leading tax law decision of the European Court of Justice. In the Court’s view, a liberal profession is an activity (1) of a marked intellectual character, (2) requiring a high-level qualification, (3) normally subject to clear and strict professional regulation, and (4) incorporating a personal element and a significant level of independence.470 An expert study commissioned by the European Economic and Social Committee in contrast found that there was not a sufficient foundation for the European Court’s third criterion (“clear and strict professional regulation”),471 and offered its own five-factor framework definition of a liberal profession as focusing on the public interest aspect of the service; the professionally and economically independent performance of tasks; the independent and personal execution of services; the existence of a special relationship of trust between client and contractor; and the restraint of the profit-maximisation motive.472

Perhaps the most straightforward definition – taking account of the guidance of the European Court but seeking to apply its core concepts to a broader context – is codified in the European Commission’s view that a liberal profession is one “practised on the basis of relevant professional qualifications in a personal, responsible and professionally independent capacity by those providing intellectual and conceptual services in the interest of the client and the public.”473 468 470

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Ibid. 469 Ibid. at 79. Urbing-Adam v. Administration de l’Enregistrement et des Domaines, Dec. No. C-267/99 (CJEU, Oct. 11, 2001). European Centre for Liberal Professions, “The State of Liberal Professions Concerning their Functions and Relevance to European Civil Society,” Report for the European Economic and Social Committee (2014), at 10. Ibid. at 10. Applying this standard and seeking to identify occupations “that counted among the liberal professions in the vast majority of [EU] Member States and were capable of being subsumed under the ECJ’s definition without difficulty,” the Report suggests that eight “typical examples” of a liberal profession would be “lawyers, tax advisors, auditors, notaries, engineers, architects, dentists, and pharmacists”: ibid. at 11. Directive 2013/55/EU of the European Parliament and of the Council of 20 November 2013 amending Directive 2005/36/EC on the recognition of professional qualifications, at Preamble [43].

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To the extent that reasoning of this kind is adopted, it may help limit the risk that any form of work requiring advanced education and involving largely independent activity is, for those reasons alone, deemed a liberal profession, thereby depriving the refugee of the more favorable treatment set out in Arts. 17 and 18. For example, the refusal in parts of the United States474 to hire refugees and other non-citizens as teachers could not, on this reading, be justified on the basis of Art. 19. As wage-earners, refugees hired as teachers would be entitled to benefit from the same treatment afforded most-favored foreigners, including the citizens of partner states.475 Second, given the recent evolution in thinking that the right to work under the Economic Covenant476 “encompasses all forms of work, [including] independent work”477 and the determination that the right to work must be guaranteed to “everyone,”478 including non-citizens,479 it ought now in principle to be possible for refugees to undertake professional work immediately upon arrival in the asylum country on the same basis as nationals.480 But as described in detail above,481 several fundamental constraints – that a state will not breach its duties if the differential treatment of refugees or non-citizens generally is deemed “objective and reasonable” and thus non-discriminatory; that the Covenant requires only “progressive implementation” of the right, not its immediate application in full; and especially that the less developed countries where most refugees live may elect not to extend work rights to noncitizens – likely limit the ability of Art. 6 of the Economic Covenant to overcome the shortcomings of Art. 19. It is nonetheless true that the “core obligation” under Art. 6 of the Economic Covenant to adopt and implement an employment plan of action that “target[s] disadvantaged and marginalized individuals and groups in particular”482 may provide at least a partial answer to the conundrum of refugee professionals in Australia who, despite benefitting from a formal entitlement to work as professionals, continue to face the 474 477

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481 482

See text at note 372. 475 See Chapter 6.1. 476 Ibid. at note 42. UN Committee on Economic and Social Rights, “General Comment No. 18: The Right to Work,” UN Doc. E/C.12/GC/18, Feb. 6, 2006, at [6]. Thus, “Article 6 defines the right to work in a general and non-exhaustive manner”: Saul, ICESCR Commentary, at 279. UN Committee on Economic, Social and Cultural Rights, “General Comment No. 20: Non-discrimination in Economic, Social and Cultural Rights,” UN Doc. E/C.12/GC/20, July 2, 2009, at [30]. UN Committee on Economic, Social and Cultural Rights, “Duties of States towards Refugees and Migrants under the International Covenant on Economic, Social and Cultural Rights,” UN Doc. E/C.12/2017/1, Mar. 13, 2017, at [3]. “By contrast with the Refugee Convention, the Covenant protects all persons within a state’s territory or jurisdiction, whether lawfully staying or not”: Mathew, Asylum and Employment, at 115. See Chapter 6.1 at notes 61–95. UN Committee on Economic and Social Rights, “General Comment No. 18: The Right to Work,” UN Doc. E/C.12/GC/18, Feb. 6, 2006, at [31(c)].

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practical challenge of being passed over by those with Australian work experience.483 Third and likely most promising, even if the work which the refugee wishes to pursue cannot be classified as other than a liberal profession nor be overcome by reliance on Art. 6 of the Economic Covenant, domestic laws or practices based on Art. 19 might be argued to breach the general duty of nondiscrimination set by Art. 26 of the Civil and Political Covenant.484 Art. 26 speaks to distinctions based on any form of status, and governs in any field regulated (directly or indirectly) by public authorities.485 Its guarantee of equal protection of the law essentially requires that any distinction in the allocation of rights based on status be grounded in reasonable criteria. Thus, unless it can be shown that it is reasonable to disfranchise refugees who are liberal professionals relative to all other refugees,486 the guarantee of equal protection of the law should operate to invalidate their exclusion from the more generous rules on access to work set by Arts. 17 and 18.487 It would likely be difficult for a government to show the reasonableness of this sort of exclusion. As Robinson warned, “[t]here is no clear-cut distinction between certain liberal professions (for instance, pharmacists, engineers) and either self-employment (owner of an engineering firm or a pharmacy) or wageearner (non-self-employed engineer, pharmacist, chemist).”488 Because the “bright line” is so unclear, it is difficult to imagine the principled basis for the much more rigorous approach adopted in Art. 19. If there is no sound basis for denying refugees who are liberal professionals the right to earn a livelihood on terms as favorable as those granted to all other refugee workers (who are either self-employed, wage-earners, or indeed members of professions not defined as liberal), then the duty of non-discrimination requires the discontinuation of policies based on the approach stipulated in Art. 19 of the Refugee Convention. If reliance on Art. 19 were to be invalidated, the right to work of refugees who are liberal professionals would be determined not by their status 483 484

485 486

487

See text at note 379. See generally Chapter 1.5.5. The duty of non-discrimination set by Art. 3 of the Refugee Convention itself is not relevant to this question, as it is textually limited to the prohibition of discrimination “as to race, religion, or country of origin”: see Chapter 3.4. See Chapter 1.5.5 at note 453 ff. While the UN Human Rights Committee has established an extraordinarily broad margin of appreciation for distinctions based on citizenship, there is no reason to believe that comparable deference would be forthcoming when the distinctions made govern the allocation of rights within the class of refugees, none of whom can claim the arguably special bond which citizenship entails: see Chapter 1.5.5 at note 471 ff. On the other hand, because of this margin of appreciation, it is less clear that the duty of non-discrimination would prove of assistance to refugee professionals faced with accreditation processes applied generally to non-citizens, but which set standards for qualification that appear significantly greater than required to ensure professional competence. See Chapter 1.5.5 at note 464. 488 Robinson, History, at 118.

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as liberal professionals, but on the basis of an objective assessment of the work to be undertaken as either self-employment or wage-earning employment.489

6.3 Public Relief and Assistance Consideration was previously given to the various predicaments faced by refugees seeking to meet their basic needs upon arrival in an asylum country, or while waiting for a decision to be taken on the verification of their claim to refugee status.490 For the most part, persons recognized as refugees, or who are otherwise allowed to stay in the host country on an ongoing basis, are less vulnerable than those in the early stages of seeking a state’s protection, primarily because refugees lawfully staying are entitled to earn their living through work.491 But even once entitled to work, it is not always possible for refugees to achieve real self-sufficiency. For example, the land assigned for farming may be too small, environmentally degraded, or too far from markets. Other refugees will simply be unable to work, or may be able to secure only work that is so poorly paid that they are unable to meet even basic needs. In such circumstances, there is often a need for economic support. One answer in principle is the right of lawfully staying refugees to access social security programs, as discussed above.492 But because most such programs base entitlement on employment-based contributions, a refugee may not yet be in a position to qualify.493 As such, the question of access by refugees to a country’s general system of social support is often key. It is, however, rare for asylum states in the less developed world to operate a national system of social support to which refugees might turn. Refugees are normally expected to do what they can to meet their own needs in organized settlements after being provided during a settling-in phase with food rations, as well as educational, health, and other basic community services.494 At best there may be a back-up mechanism for vulnerable refugees – for example, the Eastern Sudan Refugee Program which provided preventative healthcare programs, medical services, and food supplements to refugees with low incomes, 489

490

491 494

The invalidation of Art. 19 would, perhaps ironically, further the goal set by the Final Act of the Conference of Plenipotentiaries, which “[e]xpress[ed] the hope that the Convention . . . will have value as an example exceeding its contractual scope”: “Final Act of the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons,” 189 UNTS 37, adopted July 28, 1951, at Art. E. See generally Chapter 4.4, and in particular discussion of the right of all refugees to be free from deprivation, to access food and shelter, and to receive basic healthcare discussed in Chapters 4.4.1, 4.4.2, and 4.4.3 respectively. See Chapter 6.1. 492 See Chapter 6.1.3. 493 Ibid. at note 302. V. Lassailly-Jacob, “Government-Sponsored Agricultural Schemes for Involuntary Migrants in Africa: Some Key Obstacles to Their Economic Viability,” in H. Adelman and J. Sorenson eds., African Refugees: Development Aid and Repatriation 209 (1994).

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pregnant women, nursing mothers, and young children, even as it maintained a primary focus on enabling refugees to meet their needs through the cultivation of sorghum and provision of seasonal labor to others.495 Too often, however, there are no local funds to meet such needs and international donors cannot be found to fill the void. When the World Food Program (WFP) was unable to secure pledges sufficient to meet even basic nutritional requirements, refugees in Ethiopia faced a 20 percent cut to their caloric intake, while those in Yemen received rations of only 1,260 calories per day.496 Worse still, refugees in Kenya’s Dadaab camp faced such drastic cuts to food rations that many refugees, forced into debt to buy what the WFP could not provide them, were pressured to return to their countries of origin in order to repay their creditors.497 Even poorer countries able to provide some income support to their own citizens may nonetheless deny that assistance to refugees. In India, Rohingya refugees receive no assistance except for that available through UNHCR, 495

496

497

As a result of these services, “the population’s health and nutrition standards have improved, and immunization programmes have been very successful”: J. Sterkenburg et al., “Refugees and Rural Development: A Comparative Analysis of Project Aid in Sudan and Tanzania,” in H. Adelman and J. Sorenson eds., African Refugees: Development Aid and Repatriation 197 (1994). P. Schemm, “A Widening Budget Gap is Forcing the UN to Slash Food Aid to Refugees,” Washington Post, Jan. 1, 2018. The role of international donor agencies is particularly important in countries facing political instability or other critical challenges. According to WFP spokeswoman Challiss McDonough, “WFP is usually ‘the provider of last resort’ . . . When it reduces the number of people it serves or shrinks the size of the daily ration, there is no guarantee that other agencies or organizations will be able to step in to fill the gap. In more stable countries, local branches of organizations such as the Red Cross or Red Crescent societies can help”: C. Columbus, “The UN’s Terrible Dilemma: Who Gets To Eat,?” National Public Radio, Jan. 10, 2018. Under a UN repatriation program established in response to pressure from Kenyan authorities who had threatened to close the camp, those who chose to return to Somalia received US$150 per family member. Subsequent cuts in food rations prompted by WFP shortfalls resulted in additional pressure to return, particularly for those forced into debt in order to provide for their families: “The problem started when the United Nations, squeezed by growing demands for aid, slashed food rations in this camp of 250,000. That left the refugees little option but to buy food on credit from local markets. Hassan, a widow, had borrowed $400 over several months to purchase rice, beans, milk and noodles to feed her family. It was an impossible sum in the Dadaab camp, where she made $3 a month selling bananas. Her creditors began to threaten her with arrest or violence. Unwittingly, the United Nations created the only viable mechanism for people like Hassan to pay off their debts: by moving to a war zone. If everything went as planned, in three days, before Hassan boarded a plane to Mogadishu, a UN official would give her about $150 per family member for their return to Somalia. She would immediately hand that cash to her creditors”: K. Sieff, “What Other Choice Do I Have? How Debt-Ridden Refugees are being Forced to Return to a War Zone,” Washington Post, Dec. 15, 2017; see also M. Fick, “Somali Refugees in Kenya Caught between Ration Cuts and War at Home,” Reuters, Dec. 19, 2017.

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meaning that expectant mothers are excluded outright from the country’s maternity benefit program through which pre- and post-delivery care and immunizations are delivered.498 UNHCR and the Mexican government decided in 1986 that Guatemalan refugees should be able to meet their own needs from their increasing harvest yields, though the refugees protested that they were in fact only barely making ends meet.499 Similarly, the WFP strictly enforced a two-year limit on the provision of food rations to Ethiopian refugees in Sudan on the grounds that self-sufficiency should be achieved within that timeframe. In fact, the refugees were not yet able to meet their own needs, forcing other agencies to step in to continue a food program for the members of vulnerable groups with no possibility of earning a living.500 And when the UNHCR encouraged Ghana gradually to withdraw assistance from refugees living in the Baduburam camp in order to foster independent economic activity, the premature withdrawal of aid in practice deepened existing disparities among refugees based on wealth: While refugees who were receiving remittances were able to satisfy their basic day-to-day needs, those who had no connections to the diaspora were deeply impoverished . . . Refugees in this camp had to pay to use or acquire basic services including water, public latrines, medical treatment and primary education – instead of having these services provided free of charge by refugee agencies . . . However, the fee-based camp life inevitably created disparities among refugees in their ability to access these services. For example, poor households without access to international remittances could not secure daily food, provide primary education for their children, or receive necessary medical treatment.501 498

499

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“Most expectant Rohingya mothers . . . are also locked out of the Pradhan Mantri Maternity Scheme, which provides lactating mothers with roughly $100, which they could use to buy food and improve their diet. Rohingya children who have been allowed to attend local government schools are not included in the midday meal programs, which are run by the Indian government to improve the nutritional status of students . . . UNHCR and other international organizations try to fill the gaps, but their presence is limited. Civil society groups such as the Right to Food have tried to monitor and intervene. But increasingly they are dealing with a backlash from a government that does not even consider the Rohingya to be refugees, seeing them instead as illegal immigrants, and now making moves to try to kick them out of the country”: N. Dixit, “Will India Start Providing Public-Health Services for Refugees?,” Pacific Standard, Feb. 2, 2018. “‘We don’t starve,’ the refugees say, but often they have to be content with ‘tortilla with salt,’ which is rock bottom and the symbol of poverty”: F. Stepputat, “Self-Sufficiency and Exile in Mexico: Report on a Field Study Among Relocated Guatemalan Refugees in South-East Mexico, August–November 1988,” UN Research Institute for Social Development Discussion Paper No. 9, Aug. 1989, at 20. J. El Bushra, “Case Studies of Educational Needs Among Refugees II: Eritrean and Ethiopian Refugees in the Sudan” (1985), at 22. E. Easton-Calabria and N. Omata, “Panacea for the Refugee Crisis? Rethinking the Promotion of ‘Self-Reliance’ for Refugees,” 39(8) (2018) Third World Quarterly 1458, at 1465–1466.

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Refugees in less developed countries not living in organized settlements frequently have even less reliable access to assistance. Because whatever support is available tends to be directed to refugees residing in governmentapproved settlements, up to an estimated 60 percent of the world’s refugees struggle to survive largely without assistance from international aid agencies or governments.502A notable exception is South Africa, where the Constitutional Court struck down laws that denied destitute Mozambican refugees the full benefit of national assistance programs, including child support and old-age dependency grants.503 Successful assistance projects directed toward selfsettled refugees have also been undertaken in the Kakuma and Kalobeyei regions of Kenya,504 in the remote Somali region of Ethiopia,505 and in the urban centers of Rwanda and Tanzania.506 Until 2009, UNHCR likewise adopted an approach of “minimal engagement” with urban refugees “based on the presumptions of state responsibility for protection and assistance, and refugee self-reliance.”507 Despite its subsequent change in policy more fully to encompass city-dwelling refugees in its mandate,508 the aid made available to urban and other self-settled refugees normally is not enough to meet the refugees’ real needs.509 Funding shortfalls have been endemic, leading to the ending of healthcare for refugees in Jordan, and to cuts in cash assistance and food aid in Iraq, Lebanon, and Egypt.510 In 502

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505 506

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C. Liu, “Factbox: Hidden and Often Ignored: Five Facts about ‘Urban Refugees,’” Reuters, Dec. 9, 2016; see also “The Urban Challenge for Refugees,” IRIN News, Jan. 9, 2013. The Court determined that the constitutional right of “everyone” to enjoy equality, social security, and the protection of children meant that laws that withheld relevant social benefits from non-citizens should be struck down: Khosa et al. v. Minister of Social Development, (2004) 6 BCRR 569 (SA CC, Mar. 4, 2004). A. Betts and P. Collier, “A Self-Reliance Model for Refugees,” Washington Post, June 18, 2018. V. Turner, “Innovative Investment Transforms Lives in Ethiopia,” Sept. 27, 2018. Church World Service Global, “Urban Refugee Self-Reliance Pilot Program in Rwanda, South Africa and Tanzania” (2016), at 8–18. E. Donger et al., “Refugee Youth in Lusaka: A Comprehensive Evaluation of Health and Wellbeing” (2017) (Donger, “Refugee Youth in Lusaka”), at 7. See also J. Crisp, “Finding Space for Protection: An Inside Account of the Evolution of UNHCR’s Urban Refugee Policy,” (2017) 33(1) Refuge 87. UNHCR, “UNHCR Policy on Refugee Protection and Solutions in Urban Areas,” Sept. 2009. See e.g. H. Grant, “UN Agencies ‘Broke and Failing’ in Face of Ever-Growing Refugee Crisis,” Guardian, Sept. 6, 2015. “Aid programmes for refugees and host communities in the region have been plagued by chronic funding shortages. The current inter-agency Syrian regional refugee and resilience (3RP) plan for 2015 is only 41% funded, which has meant cuts in food aid for thousands of refugees, and those that get it having to survive on US$0.45–0.50 a day. Many refugees in Jordan told UNHCR the WFP food aid cuts were the last straw in their decision to leave the country. Tens of thousands miss out on cash assistance, sinking deeper into debt. As a result people resort to negative coping strategies – including begging, child labour, and

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other cases, aid agencies face policy-based barriers imposed by host states themselves. In Turkey, for instance, the ability of UNHCR and its partners to assist Syrian refugees outside camps in accessing food benefits was limited by the government’s refusal either to conduct a needs assessment or grant permission to aid agencies to conduct such an assessment in its place.511 Strict and sometimes arbitrary limits on who qualifies for urban residency permits (URPs) have also prevented UNHCR from assisting any urban refugees in Zambia who do not have legal residency status:512 Applying for this urban residency permit, even with a supporting letter from [the Commissioner for Refugees], is lengthy, complex, and expensive. Several refugees reported that bribes were requested of their families during the application procedure. Eligibility criteria directly favor the most educated refugees and those with financial resources. These refugees whose permission to remain is based on medical need, family connection, security concerns, or resettlement are not authorized to work or study, leaving them unable to support themselves and their family, and forcing them into the informal work market.513

For the most part, refugees in the developed world face fewer barriers to accessing social assistance. At least once their status is recognized, most refugees in the global North are in principle entitled to benefit from the same public assistance programs as are available to citizens. Canada, for instance, guarantees income assistance to both government-assisted and privately sponsored refugees for the first twelve months of their stay; following this period, refugees are assimilated to the citizens of each province for purposes of local social assistance programs.514 The European Union’s Qualification Directive

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increased indebtedness. Shrinking humanitarian aid was cited by refugees in Iraq, Jordan, Lebanon and Egypt as cause of desperation and a driver of onward movement”: A. Rummery, “Loss of Hope and Deepening Poverty Driving Syrians to Seek Refuge in Europe,” Sept. 25, 2015. E. Troutman, “If Settling Refugees beyond Camps is Best for Them, Why are They Still Struggling?,” Guardian, May 9, 2016; see also UN OCHA Relief Web, “3RP Regional Refugee & Resilience Plan 2016–2017 in Response to the Syria Crisis: Turkey” (2016), at 11, 30–32. “Those refugees living in Lusaka illegally, without a URP, are not included on government or UNHCR databases. They are at risk of detention and they are not able to access services from UNHCR or its implementing partner AAH. As one UNHCR officer noted, ‘We fundamentally have a flaw in how we program: we only program for those that have legal urban residency. We encourage all those without permits to go back and get legal residency’”: Donger, “Refugee Youth in Lusaka,” at 22. Ibid. at 22. See Canadian Council for Refugees, “Refugees Receive Limited, if any, Social Assistance from Government Authorities,” ccrweb.ca/en/refugees-social-assistance, accessed Mar. 5, 2020; and “No, Refugees in Canada do not Receive More Money from the Government than Retired Citizens,” AFP Canada, Oct. 15, 2018. While some provinces condition refugee claimants’ access to benefits on the fulfillment of minimum residency requirements, they

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similarly directs Member States to “ensure that beneficiaries of international protection receive, in the Member State that has granted such protection, the necessary social assistance as provided to nationals of that Member State.”515 Some wealthier states have nonetheless taken steps to restrict access to social assistance in recent years. France516 and Denmark517 curtailed the amount of income assistance available to refugee claimants and refugees respectively, while Bulgaria retroactively terminated income support – previously provided at the same rate as for nationals – for all refugee claimants in reception centers.518 In other cases, access to social assistance is conditioned on refugees’ fulfillment of criteria not applied to nationals: Germany, for instance, extends the same social benefits as are granted to German nationals, but requires refugee recipients of welfare to partake in integration classes.519 Poland has similarly conditioned access to refugee-specific forms of social assistance520 on beneficiaries’ fulfillment of obligations, “the non-respect of which results in withdrawal of the assistance. Most importantly, a change of residence is possible only in a limited number of strictly defined situations.”521 Even states which recognize the entitlement of refugees to be treated as citizens for purposes of public assistance may not always take the procedural steps needed to provide that access on terms of genuine equality. For example, the United Kingdom gives refugees only twenty-eight days to transition from the less generous regime governing assistance to persons awaiting the results of their claim to the general welfare program.522 But this is often less than the

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are prohibited from imposing such constraints on recognized refugees: Canadian Council for Refugees, “Refugees and Social Assistance: FAQs,” ccrweb.ca/en/refugees-and-socialassistance-faqs, accessed Mar. 5, 2020. EU Qualification Directive (2011), at Art. 29(1). E. Poptcheva et al., “Work and Social Welfare for Asylum-Seekers and Refugees: Selected EU Member States,” Dec. 2015 (Poptcheva, “Work and Social Welfare”), at 14. Martin, “Mapping Labour-Market Integration Support Measures,” at 41. Poptcheva, “Work and Social Welfare,” at 11. 519 Ibid. at 17. Such assistance, available to recognized refugees for a period of no more than twelve months, “is tailored to their specific needs and thus takes the form of individual integration programmes (agreements between the beneficiary and the competent local authority). The assistance may be of both financial (up to PLN 1 335 − €318/month) and nonfinancial nature. Beneficiaries have social assistants attributed to them and can make use of counselling by the whole range of advisors and experts including lawyers and psychologists. They are insured and have access to healthcare”: ibid. at 25. Ibid. at 25. Known as the “move on period,” these twenty-eight days “mark[] the period when a newly recognised refugee is expected to move from Home Office provided support to sourcing their own accommodation and income, either privately or via mainstream welfare support . . . This means that any financial support they may have been receiving will stop and if they have also been in Home Office provided accommodation, they will be required to vacate the property”: “Refugees Welcome? The Experience of New Refugees in the UK: A report by the All Party Parliamentary Group on Refugees,” APPG, Apr. 2017, at 13.

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time required for authorities to provide refugees with a Biometric Residence Permit and a National Insurance number, both of which are required to access social assistance. This timing gap has forced many refugees to rely on charities to avoid destitution and homelessness.523 The ability to access support is often compromised when refugees are shunted into auxiliary protection systems, including so-called “subsidiary protection” regimes. European Union law requires only that the beneficiaries of subsidiary protection receive “core” social assistance benefits “at the same level and under the same eligibility conditions as nationals”524 – a fungible notion that, with the exception of “minimum income support, assistance in the case of illness, or pregnancy, and parental assistance, in so far as those benefits are granted to nationals under national law,”525 means that the scope of social assistance benefits paid is subject to national law. This discretion has, for example, been invoked by Austria to limit its social assistance for subsidiary protection beneficiaries to a needs-based program that affords drastically lower benefits than those extended to recognized refugees. A challenge to the differential treatment lodged with the Constitutional Court was dismissed “on the ground that subsidiary protection is more provisional a status than refugee status, thereby justifying differential treatment in social benefits.”526 Similar reasoning led the French Cour de cassation to deny the beneficiaries of subsidiary protection the retroactive access to welfare benefits that otherwise accrues to refugees upon confirmation of status.527 The situation is often even more dire for refugees granted only so-called “temporary protection.”528 Refugees in receipt of temporary protection in the United States have been granted access to emergency services under Medicaid, but not to the major income support programs.529 Refugees in receipt of temporary protection visas in Australia may have their access to special benefits, medical care, disability support, and the mainstream social welfare 523 525 526

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Ibid. at 13–16. 524 EU Qualification Directive (2011), at Art. 29(2). Ibid. at Preamble [45]. Asylum Information Database, “Social Welfare: Austria,” www.asylumineurope.org /reports/country/austria/content-international-protection/social-welfare/, accessed Mar. 5, 2020. Asylum Information Database, “Social Welfare: France,” www.asylumineurope.org /reports/country/france/content-international-protection/social-welfare/, accessed Mar. 5, 2020. Intergovernmental Consultations on Asylum, Refugee and Migration Policies in Europe, North America and Australia, Report on Temporary Protection in States in Europe, North America and Australia (1995) (IGC, Temporary Protection), at 96, 109, 153, 220, 245. See A. Siskin, “Noncitizen Eligibility for Federal Public Assistance: Policy Overview,” Dec. 12, 2016, at 9 (listing Temporary Protection Status beneficiaries as ineligible for the Supplemental Nutrition Assistance Program, Supplemental Security Income, Temporary Assistance for Needy Families, and non-emergency Medicaid services, the four primary means-tested benefits programs under federal law).

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system530 delayed by up to six years.531 European Union law similarly treats refugees granted temporary protection differently, requiring only that states shall ensure that persons enjoying temporary protection have access to suitable accommodation or, if necessary, receive the means to obtain housing. The Member States shall make provision for persons enjoying temporary protection to receive necessary assistance in terms of social welfare and means of subsistence, if they do not have sufficient resources, as well as for medical care.532

In practice, European states – including Denmark, Germany, the Netherlands, and Sweden – historically provided those granted temporary protection with only a minimal maintenance allowance, similar to that provided to persons seeking recognition of their refugee status.533 In Italy, temporarily protected refugees were eligible only for employment-related social security.534 Refugee Convention, Art. 23 Public Relief The Contracting States shall accord to refugees lawfully staying in their territory the same treatment with respect to public relief and assistance as is accorded to their nationals. Economic Covenant, Art. 9 The States Parties to the present Covenant recognize the right of everyone to social security, including social insurance. In view of the controversy which frequently exists regarding the right of refugees to benefit from public assistance programs, both the simplicity of Art. 23 of the Refugee Convention and the ease with which its adoption was secured are quite astounding.535 530

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See Australia Parliamentary Library, “Australian Government Assistance to Refugees: Fact versus Fiction,” Sept. 28, 2012, at 5–6; and R. Yosufzai, “Refugees on Welfare: The Real Numbers,” SBS News, Sept. 4, 2017. This general approach to temporary protection replaced a variable system of entitlements, under which, for example, Australia allowed temporarily protected Chinese refugees access to its medical care system, but gave temporarily protected refugees from Sri Lanka and the former Yugoslavia access only to emergency healthcare: IGC, Temporary Protection, at 49, 235. See e.g. H. Davidson, “‘I Didn’t Know How to Survive’: The Refugees and Asylum Seekers hit by Coalition Cuts,” Guardian, June 11, 2018. EU Temporary Protection Directive, at Art. 13. F. Liebaut ed., Legal and Social Conditions for Asylum Seekers in Western European Countries (2000), at 62–63, 122, 221, 286. See also IGC, Temporary Protection, at 83, 122, 153, 195. German courts were reported sometimes to have denied even this modest allowance to Bosnian refugees on the grounds that their presence in Germany was motivated by a search for social assistance: A. Büllesbach, “War and Civil War Refugees in Germany: The Example of Refugees from Bosnia–Herzegovina,” May 1995, at 51. IGC, Temporary Protection, at 49, 132. “It is of considerable significance that in the course of drafting this provision, its object and purpose were regarded as non-controversial”: E. Lester, “Article 23,” in A. Zimmermann

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Under both the 1933 and 1938 treaties, certain refugees residing in state parties were entitled to benefit from “such relief and assistance as they may require, including medical attendance and hospital treatment.”536 But the right to receive relief and assistance was limited to refugees deemed inherently unable to earn their own living,537 and was payable only to the same extent that relief and assistance were provided to most-favored foreigners. The drafters of the 1951 Convention abolished both limitations, opting to guarantee public relief and assistance to all refugees lawfully staying in a state’s territory, and setting the standard for compliance as “the same treatment . . . as is accorded to their nationals.”538 Because there is nothing in the drafting history to suggest any implied limitation on Art. 23’s broadly framed and inclusive text, Grahl-Madsen logically concludes that the provision requires that “refugees get the same material benefits [as citizens], with the same minimum of delay.”539 The provisions in the European Union’s Qualification Directive that guarantee access to welfare by recognized refugees,540 the traditional inclusive Canadian practice,541 and the approach to social welfare eligibility mandated by the South African Constitutional Court542 are all policies in line with this standard. More generally, the determination of many less developed countries – for example, Ethiopia, Kenya, Rwanda, and Tanzania543 – to enfranchise self-settled refugees choosing

536

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538

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ed., The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary 1043 (2011) (Lester, “Article 23”), at 1055. Convention relating to the International Status of Refugees, 159 LNTS 3663, done Oct. 28, 1933, entered into force June 13, 1935 (1933 Refugee Convention), at Art. 9; Convention concerning the Status of Refugees coming from Germany, 4461 LNTS 61, done Feb. 10, 1938 (1938 Refugee Convention), at Art. 11. Specifically, the two treaties enfranchised “unemployed persons, persons suffering from physical or mental disease, aged persons or infirm persons incapable of earning a livelihood, children for whose upkeep no adequate provision is made either by their families or by third parties, pregnant women, women in childbed or nursing mothers”: 1933 Refugee Convention, at Art. 9; 1938 Refugee Convention, at Art. 11. This inclusive approach was recommended in the French draft of Art. 23, which would have required national treatment for refugees regularly resident in a state party with regard to “insurance and social security (including industrial accident compensation) and all forms of public relief”: France, “Draft Convention,” at 7. Indeed, refugees may not be denied that relief or assistance on the grounds that under a particular country’s general rules such benefits are provided only to citizens with a close affiliation to a particular region or community. The drafters formally recorded the view that “refugees should not be required to meet any conditions of local residence or affiliation which may be required of nationals”: Ad Hoc Committee, “Second Session Report,” at 13. Grahl-Madsen, Commentary, at 89. EU Qualification Directive, at Art. 29(1). The wording is, however, a bit odd, requiring that recognized refugees receive “the necessary social assistance as provided to nationals of that Member State [emphasis added].” Quaere whether the adjective “necessary” might be open to an interpretation that would limit the benefits received in a way that the Refugee Convention’s requirement to deliver the “same” treatment would not allow. See text at note 514. 542 See text at note 503. 543 See text at notes 504–506.

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not to live in camps under social welfare programs is very much in line with the duty to meet Art. 23 obligations in a way that is not only on par with general norms, but which respects the right of refugees to choose their place of residence.544 On the other hand, Art. 23 was not respected when Denmark opted to provide refugees with income support that fell short of the general norm,545 when refugees lawfully staying in Mexico were excluded from that country’s education-based welfare program that provides healthcare and cash payments to the mothers of poor children who remain in school,546 and when India denied Rohingya refugees access to its maternity benefits program.547 Indeed, the requirements of Art. 23 also call into question the administrative practices of the United Kingdom to the extent that they delay implementation of that country’s formal commitment to the assimilation of recognized refugees to citizens for purposes of social welfare entitlement.548 Nor is it lawful to impose a refugee-specific residence or other condition of eligibility for social assistance, as is done in Poland.549 This is so even if, as was the case under German law, such dispersal policies are intended to promote equity of responsibilities among regions:550 Article 23 of the Geneva Convention . . . states that the Contracting States are to accord to refugees lawfully staying in their territory the same treatment with respect to public relief and assistance as is accorded to their nationals . . . [R]esidence conditions are imposed [in this case] . . . [u]nlike [for] German nationals, for whom there are no such residence conditions.551

The substantive scope of the entitlement of refugees to benefit from public welfare programs under Art. 23 is quite broad.552 The decision was made by the 544 545

546

547 550

551 552

See Chapter 5.2. See text at note 517. Despite Denmark’s decision to opt out of most EU asylum instruments, it remains bound by Art. 23 of the Refugee Convention. See generally den Heijer, “Common European Asylum System.” See text at note 499. By 2000, this program had reached “two million families in Mexico, or about one-tenth of the entire Mexican population”: T. Schultz, “School Subsidies for the Poor: Evaluating a Mexican Strategy for Reducing Poverty,” International Food Policy Research Institute FCND Discussion Paper No. 102, Mar. 2001, at 3. See text at note 498. 548 See text at notes 522–523. 549 See text at note 520. Kreis Warendorf v. Ibrahim Alo and Amira Osso v. Region Hannover, Dec. Nos. C-443/14 and C-144/14 (CJEU, Mar. 1, 2016), at [56]. The Court showed cautious openness, however, to the imposition of a residence condition on grounds of the importance of facilitating integration (see text at note 519), but only if those subject to the condition were shown to be “not in a comparable position” to those exempt from such constraints as regards the integration objective: ibid. at [59]. It is, however, doubtful that Art. 23 of the Refugee Convention would authorize any such differentiation in access to social assistance given the duty to provide refugees with “the same treatment” as nationals. Ibid. at [51], [53]. See Weis, Travaux, at 174: “What is meant by public relief and assistance depends on national law, but the concept should be interpreted widely.” The cognate provision of the Economic Covenant has recently been interpreted to apply to “nine principal” concerns:

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drafters not to define the ambit of “public relief and assistance” in the text of the Convention since “such an enumeration was of necessity incomplete.”553 Instead, the drafters opted to defer to each state’s own decision, “since it was, in point of fact, national legislation which determined the categories of persons eligible for public relief.”554 During the debates, however, no objection was taken to the Secretary-General’s proposal that public relief would ordinarily be understood to include benefits paid to persons “suffering from physical or mental disease and incapable because of their condition or age of earning a livelihood for themselves and their families, and also to children without support.”555 Specific reference was also made to assistance to the blind,556 hospital care,557 and emergency relief558 as forms of public relief or assistance.559 Indeed, the only subject which generated any controversy was whether Art. 23 covered compensation in the event of unemployment. But the difference of view really reflected only variation in the way in which unemployment benefits are delivered in different states – in some via a contributory scheme, therefore more logically understood as a form of social security,560 in others via a state-funded program, thus properly deemed public relief or assistance.561 In the end, the distinction will usually be of no practical

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healthcare, sickness, old age, unemployment, employment injury, family and child support, maternity, disability, and survivors and orphans: UN Committee on Economic, Social, and Cultural Rights, “General Comment No. 19: The Right to Social Security,” UN Doc. E/C.12/GC/19, Feb. 4, 2008, at [12]–[21]. Statement of Mr. Metall of the International Labor Organization, UN Doc. E/AC.32/ SR.15, Jan. 27, 1950, at 7. Statement of Mr. Weis of the International Refugee Organization, ibid. Secretary-General, “Memorandum,” at 39. Statement of Mr. Metall of the International Labor Organization, UN Doc. E/AC.32/2, Jan. 3, 1950, at 7; and Statement of Mr. Rain of France, ibid. at 8. Statement of Mr. Malfatti of Italy, UN Doc. E/AC.32/SR.38, Aug. 17, 1950, at 4. Ibid. Grahl-Madsen concludes that “[d]uring the discussion in the Ad Hoc Committee it was firmly stressed that public relief encompasses hospital treatment, measures of relief for the blind, as well as emergency relief. It may be taken for granted that the Article also covers the cases specified in Article [9] of the 1933 Convention”: Grahl-Madsen, Commentary, at 88–89. The scope of Art. 9 of the 1933 Refugee Convention is set out at note 537. See Chapter 6.1.3. “[I]t would be difficult to mention the unemployed in article [23], because legislation concerning the unemployed varied according to the country; in Belgium, for example, unemployment was covered by insurance rather than by assistance”: Statement of Mr. Cuvelier of Belgium, UN Doc. E/AC.32/SR.15, Jan. 27, 1950, at 5. On the other hand, the British representative felt that unemployment benefits should be mentioned in Art. 23 because under his country’s system the insurance component of unemployment benefits “did not take effect until a certain number of contributions had been paid and it was granted for a specific period only, after which the unemployed person would, if necessary, receive assistance from public relief. That example would suffice to show that it was not superfluous to mention the unemployed in article [23]”: Statement of Sir Leslie Brass of the United Kingdom, ibid. at 6–7.

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significance to refugees, since refugees lawfully staying are entitled to national treatment under both social security and public relief and assistance initiatives.562 While the social assistance benefits provided to refugees must be the same as those afforded nationals, the drafters of the Convention left states the discretion as to how best to deliver the same benefits to refugees – meaning, for example, that meeting this duty via the provision of community-based services as under the Eastern Sudan Refugee Program563 is perfectly acceptable. Indeed, the Swiss drafter had observed that in his country “indigent Swiss nationals were helped by the cantons and communes, whereas refugees were helped by charitable organizations to which the Confederation refunded all or 60% of the cost of the relief given. In that way, refugees did not have to apply to officials in small communes for whom it was perhaps more difficult to understand their special position.”564 To this, the Chairman of the Ad Hoc Committee replied that the Committee had not intended to interfere with the administrative systems of any country. It had merely endeavoured to secure the same public relief and assistance for refugees as for nationals. It did not matter whether relief and assistance were provided out of federal, cantonal, or municipal funds; the only thing that mattered was that the State should guarantee that in some way relief would be given to refugees.565

As such, to the extent that a common system for implementation of the duty to treat refugees on terms of equality with citizens is felt inappropriate – for example, where the usual local residence requirement reflects the fact that it is the community itself that funds the public relief and assistance – it is open to the government to organize the logistics of equal treatment in whatever way it deems suitable:566 562

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See Robinson, History, at 124: “No difficulties will, as a rule, arise in practice concerning the delimitation between public relief and assistance on the one hand, and social security on the other, because the Convention provides for the same treatment, in both instances, except for the cases enumerated in Art. 24(1)(b)(i) and (ii).” Indeed, “the two provisions may be regarded as complementary where e.g. a State had not adopted social security legislation, only provides for contributory entitlements to social security, or where public relief and social security schemes fall under the responsibility of different ministries”: Lester, “Article 23,” at 1045. See text at note 495. Statement of Mr. Schurch of Switzerland, UN Doc. E/AC.32/SR.38, Aug. 17, 1950, at 5. Statement of the Chairman, Mr. Larsen of Denmark, ibid. at 5. “The article, however, permitted the grant of relief and assistance in whatever way States desired; it did not specify the way”: Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.38, Aug. 17, 1950, at 6. A state’s right to design the mechanism for implementation must, of course, not breach any other duty under the Convention. For example, the Venezuelan representative noted that in his country refugees with infectious diseases were sometimes not treated in public hospitals and institutions, but were instead sent to

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[T]he principle of article [23] was clear: the refugees should be accorded the same treatment with respect to public relief and assistance as was accorded to nationals, and it did not matter how the treatment was accorded, provided the results were the same.567

At the end of the day, it is the result that matters. As framed by the European Court of Justice, the duty to provide refugees with social assistance “imposes on each Member State, in unambiguous terms, an obligation to produce [a] result[] which is precise and unconditional, consisting in ensuring that every refugee to which it grants its protection enjoys the same level of social assistance as that provided for its nationals.”568 There are, however, two critical constraints on the right of a refugee to claim full access to national systems of public relief and assistance: first, it inheres only in refugees lawfully staying in a state party; and second, it requires only assimilation of refugees to nationals within whatever social assistance schemes exist, not that any such system be established in the first place. The first requirement – that a refugee be “lawfully staying” in order to be entitled to access social assistance programs – has at times been compromised in the developed world by the diversion of refugees into so-called “temporary protection” regimes. While, for reasons previously discussed,569 refugees admitted to temporary protection are properly understood to be “lawfully staying” and thus entitled to the benefit of Art. 23, state practice has at times suggested otherwise. The ambiguous framing of the European Union’s Temporary Protection Directive requiring only “necessary assistance”570 aligns with the practice of Denmark, Germany, the Netherlands, and Sweden to provide refugees in receipt of temporary protection with only a minimal maintenance allowance571 and Italy’s granting to temporarily protected

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medical facilities outside the country (something “[t]hat could not of course be done to a national”): Statement of Mr. Perez Perozo of Venezuela, ibid. at 7. The American and Canadian representatives seemed generally to view this practice as not contrary to Art. 23, though suggesting that its legality would be subject to Art. 32’s rules on expulsion: Statements of Mr. Henkin of the United States and Mr. Winter of Canada, ibid. Statement of Mr. Henkin of the United States, ibid. at 6. As Grahl-Madsen put it, “what interested the drafters was the material situation, not procedure”: Grahl-Madsen, Commentary, at 89. Ahmad Shah Ayubi v. Austria, Dec. No. C-713/17 (CJEU, Nov. 21, 2018), at [38]. While the Court recognized that it might be possible to justify a policy under which “on account of difficulties faced by refugees who have recently arrived in Austria in gaining access to the free housing market it is more appropriate to offer them accommodation in hostels as soon as possible rather than providing them with financial assistance, it suffices to state that, in any event, it is not clear from the description of the applicable national legislation set out in the order for reference or from evidence adduced by the Austrian Government that the reduction in the amount of social security benefits at issue in the main proceedings paid to those refugees is in fact offset by granting them other forms of social security benefits”: ibid. at [33]. See Chapter 3.1.4 at note 203. 570 See text at note 528. 571 See text at note 529.

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refugees of only employment-related social security572 – clearly at odds with the duty to assimilate refugees to nationals for purposes of public relief and assistance. Australia’s decision to delay many welfare benefits for up to six years for refugees granted temporary protection573 is similarly in breach of its duties under Art. 23. So too are the terms of a settlement granting temporary protection to Salvadoran and Guatemalans in the United States,574 which denied these refugees access to key income support programs.575 Importantly, the Court of Justice of the European Union has ruled against Austrian rules under which refugees granted temporary residence permits received only minimum subsistence benefits,576 rather than the full access to social assistance provided to refugees authorized to stay permanently in the country. Specifically invoking Art. 23 of the Refugee Convention, the Court determined that [T[he level of social security benefits paid to refugees by the Member State which granted that status, whether temporary or permanent, must be the same as that offered to nationals of that Member State . . . [T]he rights conferred . . . derive from the grant of refugee status, and not from the issue of the residence permit.577

For the same reason, if a person who qualifies substantively as a Convention refugee is nonetheless for administrative or other reasons assigned to a “subsidiary” or “complementary” protection system, the provision to such refugees of reduced social support – as for example in Austria578 and France579 – would be in breach of Art. 23. On the other hand, it is true that prior to lawful stay – including both when a refugee is simply under a state’s authority and even while status verification is 572 573

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See text at note 530. See text at notes 526–527. The earlier Australian approach, under which temporarily protected refugees of different nationalities received different social welfare benefits, was likely also in breach of both Art. 3 of the Refugee Convention and Art. 26 of the Civil and Political Covenant: see Chapters 3.3 and 1.5.5. American Baptist Churches v. Thornburgh, 760 F. Supp. 796 (US DCCa, Jan. 31, 1991). See text at note 525. 576 See text at note 533. Ahmad Shah Ayubi v. Austria, Dec. No. C-713/17 (CJEU, Nov. 21, 2018), at [25], [27]. This decision raises the interesting question whether – in the event the EU Temporary Protection Directive were to be invoked – the Court would interpret its Art. 13(2) (which requires only that beneficiaries receive “necessary assistance in terms of social welfare and means of subsistence, if they do not have sufficient resources, as well as for medical care”) as requiring access to the national system of social assistance. Even if not, however, Art. 13(2) does not breach the Refugee Convention given the critical right of any person entitled to temporary protection to opt instead to claim Convention refugee status, including of course access to the Convention’s right to benefit from public relief and assistance programs on the same terms as citizens: EU Temporary Protection Directive, at Art. 17(1). This provision ensures that a genuine refugee may not be compelled to accept protection under a less generous regime. See text at note 533. 579 See text at note 534.

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not yet completed – the refugee may claim only the more modest guarantee of access to the necessities of life, previously analyzed.580 In brief, as soon as a refugee comes under the jurisdiction of a state party the Convention requires that he or she be treated as a national under whatever rationing systems may exist,581 while the Economic Covenant sets a duty of progressive, nondiscriminatory implementation of a more broadly framed right to an adequate standard of living, as well as an immediate duty to provide everyone with the essential core of the rights to food, water, shelter, clothing, and healthcare.582 As such the French583 and Bulgarian584 decisions to provide only limited support to refugee claimants whose claims have yet to be assessed may not fall afoul of their legal duties. The second key limitation is that Art. 23 does not actually require a state to grant refugees any public relief or assistance unless it provides relief or assistance to its own citizens. In practice, of course, many poorer asylum states have no such system585 and there is no agreement that wealthy states violate their duties under the Covenant if they fail to provide financial assistance to facilitate the provision of social assistance in poorer countries.586 As such, World Food Program cuts of the kind that led to dramatic reductions in support to refugees in Ethiopia, Kenya, and Yemen587 and comparable cuts to refugee-specific support in Egypt, Iraq, Jordan, and Lebanon588 are likely beyond the reach of international law. Lester is nonetheless right to observe that to the extent that aid is provided, the host country is “bound to ensure that access to public relief and assistance is not obstructed either legislatively or operationally. This 580

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See Chapter 4.4. Courts in both the United Kingdom and Ireland have thus fairly determined that there is no duty to provide recognized refugees with social assistance back payments for the time during which their claims were under assessment (and thus before they were “lawfully staying”): Hannah Blakesley v. Secretary of State for Work and Pensions, [2015] EWCA Civ 141 (Eng. CA, Feb. 26, 2015); Agha v. Minister for Social Protection, [2017] IEHC 6 (Ir. HC. Jan. 17, 2017). See Chapter 4.4.1. See Chapters 4.4.2 and 4.4.3. Yet it is sensibly suggested that “[t]he core obligations . . . nonetheless remain slippery. On the one hand, the [Committee] requires states to provide the benefits necessary to guarantee basic subsistence rights . . . but in the next sentence allows for states which cannot provide a ‘minimum essential level of benefits’ to ‘select a core group of social risks and contingencies’ after consulting widely”: Saul, ICESCR Commentary, at 645. It is arguable that Art. 9 of the Economic Covenant requires the establishment of a social assistance system, though this is by no means clear: See text at note 595. See text at note 516. 584 See text at note 518. Indeed, Art. 2(3) of the Economic Covenant grants poorer countries the right to decide the extent to which they will grant economic rights to non-citizens, suggesting that it would be difficult to argue a duty on all states to establish a universally accessible system of social assistance to all persons under a state’s jurisdiction. See Chapter 1.5.4 at note 432. There is presently no more than a duty in principle for wealthier states to provide aid to poorer countries: see Chapter 1.5.4 at note 412 ff. See text at notes 496–497. 588 See text at note 510.

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objection would hold even where the State is not in a position to deliver (all) the assistance itself.”589 As such, Turkey’s refusal to allow international aid assessments to occur590 and Zambia’s unwillingness to allow UNHCR to assist other than refugees with legal resident status591 were in contravention of their duties under the Economic Covenant. Nor may a state party avoid its responsibility to provide social assistance by relying on the preferences or programs of international agencies, as in the case of the withdrawal of support to refugees in Ghana’s Baduburam Camp on the advice of UNHCR.592 It is an interesting question whether general human rights law may have evolved actually to require the establishment of a social assistance scheme, thus setting a baseline duty which could then be invoked in tandem with Art. 23 of the Refugee Convention.593 In its General Comment No. 19 issued in 2008,594 the Committee on Economic, Social and Cultural Rights seemed to take a strong stand in favor of such a duty, finding that Art. 9 of the Economic Covenant “requires, for its implementation, that a system, whether composed of a single scheme or a variety of schemes, is available and in place to ensure that benefits are provided for the relevant social risks and contingencies.”595 But the same general comment frequently uses hortatory language – for example that measures taken to implement Art. 9 “can include”596 non-contributory schemes, that all persons “should” be covered,597 and that benefits “should” be provided in a timely manner.598 Moreover, the fact that the benefits provided under such a system need only be “adequate in amount and duration in order that everyone may realize his or her rights to family protection and assistance, an adequate standard of living and adequate access to health care, as contained in articles 10, 11, and 12 of the Covenant [emphasis added],”599 raises the question whether 589 592 593

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Lester, “Article 23,” at 1050. 590 See text at note 511. 591 See text at notes 512–513. See text at note 501. Scheinin has argued, for example, that Art. 9 of the Economic, Social and Cultural Covenant only requires state parties to “recognize the right of everyone to social security, including social insurance.” In his view, both “social security” and “social insurance” are terms of art that are generally understood to refer to “the ‘earned’ . . . benefits of workers and their families [as contrasted with] . . . need-based assistance from public funds, raised through tax revenues”: Scheinin, “Social Security,” at 159. Yet the Committee on Economic, Social and Cultural Rights has for many years required states to report on compliance with Art. 9 by providing information on a broad range of “social security” initiatives, including “medical care, cash sickness benefits, old age benefits, invalidity benefits, survivors’ benefits, employment injury benefits, unemployment benefits, [and] family benefits”: “Revised Guidelines Regarding the Form and Content of Reports to be Submitted by States Parties under Articles 16 and 17 of the International Covenant on Economic, Social and Cultural Rights,” UN Doc. E/1991/23 (1992). UN Committee on Economic, Social, and Cultural Rights, “General Comment No. 19: The Right to Social Security,” UN Doc. E/C.12/GC/19, Feb. 4, 2008. Ibid. at [11]. 596 Ibid. at [4(b)]. 597 Ibid. at [23]. 598 Ibid. at [23]. Ibid. at [22]. See Chapters 4.4.2 and 4.4.3 for an elaboration of duties under these articles of the Economic Covenant.

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Art. 9 truly sets a free-standing duty or whether, in contrast, it promotes a social assistance system as a helpful (but not truly obligatory) means to the end of ensuring that all enjoy the necessities of life. The latter interpretation seems to align best with the definition of a violation of the affirmative component of the duty under Art. 9, said to occur only when a state fails to “take action . . . [that] is reasonable or proportionate with respect to the attainment of the relevant rights, complies with human rights and democratic principles and [which is] subject to an adequate framework of monitoring and accountability [emphasis added].”600 If, on the other hand, Art. 9 of the Economic Covenant is properly understood to require states in all cases to establish a social assistance program to benefit “everyone,”601 it would provide the critical bedrock upon which Art. 23 of the Refugee Convention might build. Art. 9 of the Covenant standing alone would not provide a clear guarantee of refugee enfranchisement, since the Covenant requires only that “the right to social security [be] enjoyed without discrimination . . . whether in law or in fact, whether direct or indirect, on the grounds of . . . national or social origin . . . or other status”602 – meaning that differential treatment that is not “discriminatory” because it is deemed “reasonable and objective”603 remains permissible. But if Art. 9 is now appropriately read to require the establishment of a social assistance regime, Art. 23 of the Refugee Convention enables refugees to avoid the debate about whether their exclusion from that regime might be justifiable since it – in contrast to the Covenant – requires that “the same” access to social assistance be afforded refugees and citizens. Perhaps the most interesting question is just what accounted for the decision of the drafters of the Refugee Convention so comprehensively to embrace refugees in the public relief and assistance systems of state parties, even though they were well aware of the potential magnitude of the commitment being made.604 Their decision was in part driven by pragmatic considerations, rooted 600

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UN Committee on Economic, Social, and Cultural Rights, “General Comment No. 19: The Right to Social Security,” UN Doc. E/C.12/GC/19, Feb. 4, 2008, at [63]. The Committee on Economic, Social and Cultural Rights has adopted the view that while “everyone” has the right to social security, state parties are under a duty to give “special attention to those individuals and groups who traditionally face difficulties in exercising this right . . . [including] refugees [and] asylum-seekers”: ibid. at [31]. Ibid. at [29]. 603 See Chapter 1.5.5 at note 468. At the Conference of Plenipotentiaries, the Italian delegate explicitly raised the issue of the real cost to state parties of complying with Art. 23. He noted that Italy had signed a specific agreement with the IRO under which it had admitted “a large number of refugees, 1,000 of whom had been hard-core cases requiring hospital treatment. In respect of those cases, the Italian Government had agreed to pay the same benefits as to Italians in respect of public assistance, for as long as the refugees concerned lived. That represented a very considerable burden, particularly as there was small probability of their being able to work. Thus it would be very difficult for the Italian Government to give an undertaking in the terms of article [23] in respect of an indefinite number of refugees”: Statement of Mr. Theodoli of Italy, UN Doc. A/CONF.2/SR.10, July 6, 1951, at 18. (In the result, Italy opted to enter

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in the view that the provision of public relief and assistance to refugees lawfully staying in a state party is, at least over time, an economically efficient response.605 But more fundamentally, there was clearly a strong sense that assimilating refugees to citizens for purposes of public relief and assistance was simply the right thing to do. As the Secretary-General’s background study cogently observed, destitute refugees could not expect their country of origin to assume liability for their support in the host country, as most bilateral treaties on point required. Yet, unlike most non-citizens, they could not safely return home to benefit from their own country’s support systems.606 Since the needs of refugees are no less than those of citizens and their options for external support are essentially non-existent, it was recognized that there really was no ethical option but to assimilate them to citizens for purposes of access to public relief and assistance. In the simple but poignant words of the French representative to the Ad Hoc Committee, “it would be inhuman to deny such assistance to refugees.”607

6.4 Housing Refugees who seek protection in the less developed world must at times make do for substantial periods of time with makeshift dwellings, even after the emergency reception phase has passed.608 This is often because there are simply no funds available to purchase or build homes, as was the case in Tanzania where refugees were left sheltering in makeshift tents with no floors or mattresses while awaiting enough UNHCR funding for more durable mudbrick housing.609 Even when some resources are available, excess demand may make building materials unaffordable. As Zetter has observed, “[a]ccess to building materials is the crucial element in the process of shelter consolidation; but these materials quickly become commodified and locally scarce.”610

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a reservation to Art. 23, which it withdrew on Oct. 20, 1964.) Immediately after this comment by Italy, Art. 23 was unanimously adopted by the Conference without change: ibid. at 19. “Apart from the humanitarian aspect of the matter, it was in the national interest to grant public relief to refugees, for the slight assistance provided at home involved much less expense than hospital treatment”: Statement of Mr. Rain of France, UN Doc. E/AC.32/ SR.15, Jan. 27, 1950, at 6. “Most of the conventions dealing with public assistance contain certain stipulations which cannot be satisfied in the case of refugees, such as the requirement that the State of which the recipient of relief is a national should either repatriate him or assume liability for the cost of assistance”: Secretary-General, “Memorandum,” at 39. Statement of Mr. Rain of France, UN Doc. E/AC.32/SR.15, Jan. 27, 1950, at 6. The housing rights of refugees immediately upon arrival are discussed in Chapter 4.4.2 at notes 1705 and 1761. K. Bond, “Shelter Crisis Adds to Ordeal for Refugees in Tanzania’s Camps,” Nov. 30, 2017. R. Zetter, “Shelter Provision and Settlement Policies for Refugees: A State of the Art Review,” Nordic Africa Institute Studies on Emergencies and Disaster Relief Working

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Refugees in Ethiopia’s Bur-Amino region were more fortunate, having access to the “compact bamboo wattle,” a waterproof form utilizing inexpensive local materials such as eucalyptus and bamboo that afforded the refugees reasonable privacy.611 Refugees in Turkey were given access to 22-square-meter containers, complete with a living room, two bedrooms, and a garden, in recognition that the tents authorities originally furnished were insufficient for long-term residency.612 At times, access by refugees to better quality housing may face resistance. For example, a joint venture between UNHCR and IKEA to establish durable structures in refugee camps in Lebanon was ultimately canceled due to protests by local residents, who feared the new structures equipped with solar panels were too “permanent.”613 A similar rationale was later offered by Lebanese officials for their decision to ban even rudimentary “box shelters” – a concrete base and wooden walls – promoted by the Danish Refugee Council as a replacement for informal structures vulnerable to the wind, rain, and snow.614 But not even access to resources and a supportive host government can guarantee refugees access to suitable housing. Donors have too often been reluctant to involve refugees in the design or building of housing, or to use local materials,615 insisting instead on the use of foreign technologies and

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Paper No. 2 (1995) (Zetter, “Shelter Provision”), at 39–40. “Even where materials like poles, mats, thatch and mud can be locally garnered, supply constraints and environmental degradation caused by excess demand in countries like Malawi . . . and Rwanda . . . can be exceptionally severe”: ibid. M. Jahre et al., “Approaches to the Design of Refugee Camps: An Empirical Study in Kenya, Ethiopia, Greece, and Turkey,” (2018) 8(3) Journal of Humanitarian Logistics and Supply Chain Management 323, at 330. Ibid. at 332. R. Hall, “Lebanon Doesn’t Want Syrian Refugees Getting Too Comfortable, Even in Winter,” PRI, Feb. 14, 2016. “Even minor infractions against this policy can attract attention from the authorities, as 67-year-old grandmother Fatima found out. She fled her home city of Homs in Syria three and a half years ago and came to Lebanon with her family. ‘We put concrete blocks around the edge of our shelter to stop water coming in. But last year there was a flood and it came in above the stones,’ she says . . . When she put another layer of concrete blocks on top of the first to better protect her shelter from flooding, she received a visit from the army. ‘They asked us: “Who told you you could put more stones down?” and threatened to fine us.’ The blocks were removed. Now, when it rains, she fills cotton bags with smaller stones and places them against the walls of her shelter”: Ibid. “[T]he global experience is that [housing] is best provided by the settlers themselves – first as temporary housing and then, as their incomes rise, as permanent housing”: T. Scudder, “From Relief to Development: Some Comments on Refugee and Other Settlements in Somalia,” Institute for Development Anthropology Working Paper, June 1981, at 35. Among the advantages of using local materials are lessened need for imports, reduced transportation costs, and lower capital investment: O. Sherrer, “Afghan Refugee Housing,” (1990) 34 Mimar 43, at 47.

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designs.616 These have at times proved culturally inappropriate,617 too expensive to maintain,618 and even dangerous.619 As Clark has written, The spacial layout and design of a settlement can obviously have a profound effect on its viability and on the quality of life of the settlers. Too often these decisions reflect little input as to how they would prefer to live. It is ironic to listen to aid officials complain about the lack of community spirit in a settlement where the residents have been forced to live spread out along the roadways, with no village structure to draw them together in the first place.620

After refugee settlements are established, they have a tendency to grow to an unwieldy size and to suffer from overcrowding. This can be the result of government policies which fail to acknowledge the need for additional refugee accommodation or which are intended to provide only immediate rather than long-term protection: Once a settlement has opened there is a great temptation to continue to send newly arrived refugees (or spontaneously settled refugees who have been rounded up by the host government) to the site. The plan may be to expand the settlement, or to use it as a transit center or holding camp, while planning an additional settlement or hoping for repatriation. The government is often reluctant to accept the need for additional settlements, feels constrained by the lack of staff resources, or is disinclined to go through the search and negotiations to provide another settlement site.621

In the result, typical camps – comprising between 20,000 and 30,000 refugees – are far too large “to function effectively either as social communities or for the logistical and managerial requirements for which they are established.”622 With 616

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“[T]oo often international agencies and donors, in their concern for the rapid deployment of emergency assistance, import foreign technologies and professional capacity because these are most readily at hand”: Zetter, “Shelter Provision,” at 37. Imported “A-frame” technology for refugees in Bangladesh, for example, was “culturally inappropriate without adaptation of the physical and social space around the dwelling”: ibid. at 38. The maintenance of timber-framed buildings designed by European architects for refugees in Costa Rica was “unaffordable [for] many refugees”: ibid. at 38. “[A] . . . recent evaluation of shelter construction in Somali refugee camps in Kenya illustrates how, with insufficient technical advice and limited NGO capability, prefabricated shelter was being erected which was structurally dangerous”: ibid. at 38. L. Clark, “Key Issues in Post-Emergency Refugee Assistance in Eastern and Southern Africa,” paper presented at the UNHCR/DMC Emergency Managers Training Workshop (1987), at 16. A positive example is, however, provided by the settlements for Angolan refugees in (what was then) Zaïre, where “the decision was made to design the settlement to reflect the culture of the refugees as closely as possible”: ibid. B. Stein and L. Clark, “Older Refugee Settlements in Africa,” Refugee Policy Group Paper (1986), at 21. Zetter, “Shelter Provision,” at 49.

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services stretched beyond capacity, problems of water supply, sanitation, and waste disposal frequently lead to a serious deterioration of health. A shortage of sanitation facilities and latrines was associated with cholera in refugee camps in Bangladesh and Kenya,623 while the transmission of Lassa fever from rodents to refugees in Sierra Leonean camps was attributed to poor housing quality and hygiene.624 The lack of privacy and the inability effectively to patrol sprawling refugee settlements is moreover a major contributor to the exposure of refugees to violent attacks.625 While the location of refugee settlements is a key determinant of their success, political considerations and the assumed temporariness of the refugees’ presence mean “almost invariably, that refugees are settled in the most marginal areas.”626 In eastern Sudan627 and Uganda,628 refugee settlements were located on marginal land with inadequate water supply. Croatia and Bosnia assigned refugees to inexpensive government-owned land which lacked the topography, natural ecology, or climatic conditions to enable the refugees to become self-sustaining.629 The viability of settlements is likewise undermined in locations vulnerable to the elements or to natural disaster. Rohingya camps in southeast Bangladesh have faced particularly dangerous rain levels and cyclones, conditions which were only exacerbated by erosion due to the removal of vegetation to make way for shelter for hundreds of thousands of refugees.630 Yemeni refugees in Djibouti’s camps were vulnerable to scorpions, 623

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Unite for Sight, “Module 3: Food, Water, Sanitation, and Housing in Refugee Camps,” www.uniteforsight.org/refugee-health/module3, accessed Mar. 5, 2020 (Unite for Sight, “Module 3”). P. Bonner et al., “Poor Housing Quality Increases Risk of Rodent Infestation and Lassa Fever in Refugee Camps of Sierra Leone,” (2007) 77(1) American Journal of Tropical Medicine and Hygiene 169, at 169–175. See Chapter 4.3.3 at note 1516. 626 Zetter, “Shelter Provision,” at 78. “[M]ost settlements were located in marginalised barren lands where rainfall was inadequate, unevenly distributed, and absolutely undependable”: T. Yousif, “Encampment at Abu Rakham in Sudan: A Personal Account,” (1998) 2 Forced Migration Review 15, at 15. “Refugee camps in Uganda . . . have particularly poor access to water. Only 43% of the population has access to water taps that are within 200 meters. In addition, there are over 450 people per water tap, far exceeding the UNHCR standard of 200 persons per water pump”: Unite for Sight, “Module 3.” Zetter, “Shelter Provision,” at 56. See also S. Ellis and S. Barakat, “From Relief to Development: The Long-Term Effects of the ‘Temporary’ Accommodation of Refugees and Displaced Persons in the Republic of Croatia,” (1996) 20(2) Disasters 111, at 113–114, observing that accommodation for refugees included “re-used postal trains that have been shunted on to a sideline and refitted to accommodate refugees . . . This emergency, temporary accommodation has, due to the political and financial pressures on the Croatian government, become permanent.” S. Sengupta and H. Fountain, “The Biggest Refugee Camp Braces for Rain: ‘This is Going to be a Catastrophe,’” New York Times, Mar. 14, 2018. “As the refugee crisis quickly unfolded, the Bangladesh government made available 4,800 acres of hilly, undeveloped forest land adjoining the relatively small, 1990s-era official Kutupalong Refugee Camp; the

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snakes, and baboons.631 Perhaps most seriously, refugee camps located near border areas may be prone to attack of the kind experienced by Burmese refugees in Thai refugee camps632 and by Congolese refugees in Burundian camps.633 Refugees in less developed countries who manage to avoid living in organized camps or settlements tend to replicate the settlement patterns of their host villages,634 and to adapt more successfully to their new life circumstances.635 Self-settled refugees may, however, still have difficulty meeting their housing needs because of inability to secure property and shortages of building materials.636 These challenges are often compounded by the inability of refugees to access the relief programs made available to those who agree to live in organized camps or settlements – for example, Jordan refused to allow domestic and international aid agencies to provide shelter assistance to Syrian refugees living in urban areas.637 No reason was given for the imposed ban,

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expansion site together with the original camp would soon become the world’s largest refugee camp, hosting more than 600,000 refugees. The Kutupalong-Balukhali Expansion Camp sprung up with little regard to deforestation and its consequences. Much of the hilly site was jungle prior to its sudden habitation starting in late August 2017. ‘Our entire village came together and settled on this spot,’ said Amanat Shah, 19, who arrived on September 2. ‘At first this was a jungle, but we cleared it. Now there are no trees.’ His hut now sits on a densely packed steep slope with almost no vegetation to keep the clay-sand mix under him from eroding or suddenly sliding away, particularly during monsoon rains”: Human Rights Watch, “‘Bangladesh is Not My Country’: The Plight of Rohingya Refugees from Myanmar,” Aug. 5, 2018. F. Edroos, “Yemeni Refugees Choose Baboon-Infested Tent City over Saudi Camp,” Al Jazeera, Mar. 2, 2019. “Attacks in January on three refugee camps resulted in at least three deaths and left 7,000 homeless. Despite the obvious danger, Thai authorities refused to allow the refugees to move. Again in April, Burmese troops attacked the Ta Per Poo refugee camp, razing eighteen houses. The international outcry . . . prompted Thai authorities to move some of the camps away from the border, but most of the approximately twenty-five camps remained where they were”: Human Rights Watch, World Report 1998 (1998), at 211–212. Médecins Sans Frontières, “Over 150 Dead and 106 Wounded after Attack on Congolese Refugee Camp in Burundi,” Aug. 16, 2004. In Malawi, for example, self-settled refugee housing is “in the form of dense clusters grouped around small open spaces, usually indistinguishable from and often integrated with host villages”: Zetter, “Shelter Provision,” at 55. “[T]he empirical evidence demonstrates that spontaneous settled refugees exercise far greater flexibility than their encamped counterparts in selecting more environmentally sustainable locations in which to locate, or in adopting more sustainable settlement practices”: ibid. at 74. Ibid. at 73. “Urban refugees in Jordan consistently cite housing as their primary concern, and cash-for -rent and construction assistance from both domestic and international organizations provides a vital support system as refugees seek to reestablish their lives. But in Jordan, the government has suspended all urban shelter projects since early 2015, and organizations attempting to house Syrian refugees cannot even provide cash assistance, let alone make upgrades such as those Mohammed’s home requires. As urban refugees struggle to pay rent, they are forced into substandard housing that threatens their families’ health, access

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nor were any timelines or alternative shelter strategies provided to those scrambling to repair broken windows or doors before the arrival of winter.638 Worst of all, self-settled refugees may be vulnerable to local aggression. For example, Chakma refugees from Bangladesh, living in the Indian state of Arunachal Pradesh for more than two decades, were threatened in the 1990s with eviction from their homes by a union of student activists which the regional government was unwilling to counter.639 Refugees attempting self-settlement in urban areas may face even greater difficulty in securing adequate housing. Economic pressure forces refugee families into shared facilities,640 often in neighborhoods with dilapidated housing and with other shortcomings in basic services. Refugees in female-headed households often face especially acute discrimination and sexual harassment in response to difficulties in making payment to their landlords.641 In Jordan, even refugee women capable of paying their own rent have experienced difficulty in securing accommodation due to conservative gender norms of unaccompanied women as “socially problematic.”642 An influx of refugees onto the housing market also tends to drive rents upward and may prompt unfair rental conditions. In an extreme example, Afghan refugees in Pakistan faced evictions, refusals to rent, and substantial rental increases following an announcement by Pakistani authorities that it was illegal to rent to Afghans.643 In Sudan, the plight of urban refugees was likewise increased by the decision to prohibit

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to education, security, and overall wellbeing”: V. Kelberer, “No Place to Call Home: Government of Jordan Blocks Shelter Projects for Syrian Refugees,” Huffington Post, Dec. 6, 2017. “The various Jordanian ministries reviewing the projects under suspension have not given a coherent reason for the sudden work stoppage. The suspension was imposed in early 2015 despite the fact that the same ministries approved all shelter interventions a few months prior, during the 2014–2015 government-led Jordan Response Plan (JRP) initiative. Some of the aid workers . . . think that the suspension continues due to disorganization within the ministries; others believe it is the result of a lack of political will to support shelter projects, or an unwillingness to suggest refugees may be long-term or even permanent residents of Jordan. All agreed that it is unlikely if not impossible that in a few months’ time, the government had found such significant issues with shelter projects that they merited a full suspension”: ibid. National Human Rights Commission v. State of Arunachal Pradesh, (1996) 83 AIR 1234 (In. SC, Jan. 9, 1996). Women’s Refugee Commission, “Mean Streets: Identifying and Responding to Urban Refugees’ Risks of Gender-Based Violence: Children and Adolescents,” Feb. 2016, at 3–4. R. Pelley et al., “Gender-Approach Inputs to UNHCR for the Global Compact on Refugees (2018): Lessons from Abuses faced by Syrian Female Refugees in Lebanon, Turkey, and Jordan” (2018), at 12–13. CARE, “Syrian Refugees in Urban Jordan: Baseline Assessment of Community-Identified Vulnerabilities among Syrian Refugees Living in Irbid, Madaba, Mufraq, and Zarqa,” Apr. 2013, at 37. Human Rights Watch, “Pakistan Coercion, UN Complicity: The Mass Forced Return of Afghan Refugees,” Feb. 2017, at 26–27.

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non-citizens from purchasing housing, which left them entirely dependent on the rental market.644 Conversely, Turkish authorities, in partnership with aid agencies and the European Union, adopted a cash assistance program – implemented to match the level of social assistance allocated to qualifying Turkish families – to offset the impact on its urban housing and rental markets of hosting 3.8 million refugees.645 In developed countries there are typically fewer formal barriers for recognized refugees seeking accommodation.646 One area of real concern, however, is the treatment of refugees granted “temporary protection” or another form of auxiliary status.647 In the United States, for example, beneficiaries of temporary protection status (TPS) are not eligible for public housing at all.648 Access to housing benefits in Australia is determined by the states in which temporary protection visa (TPV) holders reside – with some states, including Queensland and the Northern Territory, extending access to such benefits to TPV status beneficiaries;649 Victoria and New South Wales denying assistance to applicants unless they have at least one family member who is a citizen or permanent resident;650 and Tasmania barring access to all but Australian nationals and those with permanent residence.651 Under the European Union’s 2001 Temporary Protection Directive there is a general, if vaguely framed, obligation to “ensure that persons enjoying temporary protection have access to suitable accommodation or, if necessary, receive the means to obtain housing.”652 644

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“Because they do not possess Sudanese citizenship they cannot buy houses and are dependent on the rental sector. However, the lack of rented houses has led to a sharp rise in rents”: J. Post, “Considerations on the Settlement of Urban Refugees in Eastern Sudan” (1983), at 6. According to WFP country director Nils Grede, “[i]f a refugee is employed formally they cannot access the programme, but those who are independently wealthy but not working can still, in theory, meet the criteria . . . [B]asing the criteria on demographics rather than available resources meant the scheme could be scaled up quickly to help those in need – but that in 2018 households would be visited and assessed in more detail. So far the inclusion error remains low with just 1.6% of households excluded from the programme following the verification process”: H. Summers, “Why We’re Paying the Rent for a Million Syrian Refugees,” Guardian, Mar. 26, 2018. The accommodation challenges and rights of refugees seeking recognition of their status are addressed in Chapter 4.4.2. This was the traditional practice in Belgium, the Netherlands, Norway, and Sweden: IGC, Temporary Protection, at 7–8. American Association of Pediatrics, “Immigrant Child Health Toolkit: Access to Health Care and Public Benefits,” aap.org/en-us/advocacy-and-policy/aap-health-initiatives /Immigrant-Child-Health-Toolkit/Pages/Access-to-Health-Care-and-Public-Benefits.aspx, accessed Mar. 5, 2020. R. Blythe et al., “Status of Refuge: Access to Health, Housing and Education for People Seeking Asylum and Refugees in Australia,” July 2, 2018 (Blythe, “Access”), at 21. Ibid. at 21. 651 Ibid. at 22. EU Temporary Protection Directive (2001), at Art. 13(1). An earlier proposal for this rule was framed simply in aspirational terms, providing that states “shall, where necessary,

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Assuming, however, that a refugee is formally recognized as a Convention refugee and granted ongoing status, refugees are generally given access to housing, though not necessarily at the level of full enfranchisement. European Union law, for example, now requires states to ensure that refugees have “access to accommodation under equivalent conditions as other thirdcountry nationals legally resident in their territories,”653 thus seemingly justifying the Slovenian policy of limiting access to non-profit rental units to Slovenian citizens.654 More generally, the EU’s commitment to “equivalence” may be cold comfort to refugees given their often acute vulnerability; Portuguese law, for example, makes no effort to prioritize the needs of refugees in its public housing policy.655 Much less does it assist refugees in countries such as Poland, where the state does not provide social housing, whether to refugees or its own nationals.656 Worse still, the EU policy of assimilating refugees for purposes of housing support seems simply to have been ignored by Hungary, which has enacted several legislative changes to terminate all forms of integration support, with the result that refugees are barred from receiving state housing or income support.657 Even where refugees in principle enjoy unhindered access to housing, notinfrequent discrimination can make the challenge of locating housing in practice quite daunting. In Canada, for example, it has been reported that landlords have refused to rent to refugee claimants.658 A recent study in

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endeavour to offer suitable housing facilities, or adequate means to obtain such housing”: “Note from the Presidency of the European Union to the Working Party on Asylum,” EU Doc. 12617/98, Nov. 9, 1998. EU Qualification Directive (2011), at Art. 32(1). “While allowing for national practice of dispersal of beneficiaries of international protection, Member States shall endeavour to implement policies aimed at preventing discrimination of beneficiaries of international protection and at ensuring equal opportunities regarding access to accommodation”: ibid. at Art. 32(2). Asylum Information Database, “Country Report: Slovenia 2018” (2019), at 73, www .asylumineurope.org, accessed Mar. 5, 2020. “Access of beneficiaries of international protection to public housing remains extremely limited for reasons that . . . have traditionally been linked to legal constraints under previous rules, limited stock of available public housing, lack of prioritisation of beneficiaries of international protection in public housing policy and heavy bureaucratic requirements”: Asylum Information Database, “Country Report: Portugal 2018” (2019), at 116, www.asylumineurope.org, accessed Mar. 5, 2020. Asylum Information Database, “Country Report: Poland 2018” (2019), at 94, www .asylumineurope.org, accessed Mar. 5, 2020. Asylum Information Database, “Country Report: Hungary 2018” (2019), at 119, www .asylumineurope.org, accessed Mar. 5, 2020. S. Colley, “Refugee Claimants Facing Housing Crisis as some Landlords Refuse to Rent,” CBC News, Aug. 30, 2017. Refugees and refugee claimants alike may also face discrimination in the housing market on the basis of their ethnic, racial, or religious identities. Many such practices are never reported, however, as “it may be difficult for members of ‘visible minorities’ to recognise discrimination based on race if they had never before experienced

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Germany “noted a significant number of cases of discrimination due to nationality, immigration status, and the lack of German language skills.”659 In Austria many real estate search portals specifically seek to deter welfare recipients and refugees, and some landlords refuse to respond to inquiries not written in the German language.660 But the most common housing challenge for refugees in wealthier countries follows from generalized housing shortages, which have led to the emergence of a black market of rental brokers.661 This difficulty is compounded by lack of access to employment, as in the case of France: [T]he difficulties in finding housing and employment add to one another, triggering a vicious cycle of exclusion: without stable revenue it is difficult to find an accommodation, and . . . it is difficult to search and find a job without having proper accommodation. In addition, the housing and employment situation tend to be inverted throughout the country: in the Ile-de-France Region the housing situation is catastrophic but it is easier to find a job, whereas often the areas where the housing situation is easier have fewer employment opportunities.662

Recognizing that refugees’ usually limited financial resources, lack of contacts, unfamiliarity with neighborhoods, and lack of awareness of services663 makes the generalized challenge of locating affordable and decent housing especially difficult, some governments have implemented refugee-specific assistance initiatives. For example, local authorities in Berlin permitted refugees receiving local aid to allocate 20 percent more of their supplemental assistance to rent than was otherwise allowed for social welfare recipients.664 Sadly, other local authorities have taken a less generous tack. In Bulgaria, local rules in Sofia and

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it in their home country”: P. Flatau et al., “The Housing and Homelessness Journeys of Refugees in Australia,” Dec. 2015, at 32. N. El-Kayed and U. Hamann, “Refugees’ Access to Housing and Residency in German Cities: Internal Border Regimes and Their Local Variations,” (2018) 6(1) Social Inclusion 135 (El-Kayed and Hamann, “Housing and Residency in German Cities”), at 142. “In sum, the combination of a limited housing market and the discriminatory practices of landlords results in a situation where refugees are overwhelmingly dependent on the negotiated contingent of apartments that the city has agreed upon with one private housing company. According to local actors, the high prevalence of discrimination among landlords makes the housing market in Dresden extremely inaccessible for persons with refugee status”: ibid. A. Aigner, “Housing Entry Pathways of Refugees in Vienna, a City of Social Housing,” June 20, 2018, at 15–17. M. Meaker, “Germany’s Housing Crisis Fuels Black Market for Refugees,” Reuters, Oct. 22, 2018. Martin, “Mapping Labour-Market Integration Support Measures,” at 57. See generally R. Murdie et al., “Housing Issues Facing Immigrants and Refugees in Greater Toronto: Initial Findings from the Jamaican, Polish and Somali Communities,” in E. Komut ed., Housing Question of the “Others” (1996), at 179–183. El-Kayed and Hamann, “Housing and Residency in German Cities,” at 141.

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Plovdiv grant refugees housing assistance for only six months, after which they “have set a requirement that at least one family (household) member should be a Bulgarian national having address registration and permanent address on the territory of the municipality for more than 10 consecutive years.”665 And municipalities in the United Kingdom grant social housing assistance to those who have established a “local connection,” but recognize this connection on a more limited basis in respect of refugees relative to UK nationals.666 Refugee Convention, Art. 21 Housing As regards housing, the Contracting States, in so far as the matter is regulated by laws or regulations or is subject to the control of public authorities, shall accord to refugees lawfully staying in their territory treatment as favourable as possible and, in any event, not less favourable than that accorded to aliens generally in the same circumstances. Economic, Social and Cultural Covenant, Art. 11(1) The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate . . . housing . . . It was not initially intended that the Refugee Convention would expressly address the right of refugees to housing. None of the predecessor treaties had done so,667 and the Secretary-General did not propose any change from past practice. Indeed, because the right of refugees to acquire housing was considered to be an aspect of Art. 13’s guarantee of movable and immovable 665

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A. Pamporov et al., “Where is My Home? Homelessness and Access to Housing among Asylum-Seekers, Refugees and Persons with International Protection in Bulgaria” (2013), at 11–13. Whereas this connection may be established via residence, employment, family associations, or other special circumstances for UK nationals, refugees only meet this requirement in the locality to which they were dispersed upon filing a claim for protection: as a general matter, “local authorities may limit assistance to those who have established ‘local connection’ through residence, employment, family associations or special circumstances. Section 11 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 stipulates that asylum seekers establish a local connection to the dispersal site where they are provided accommodation. This means that refugees who require local authority housing must apply in the same area to which they were dispersed. Local authorities can refer individuals to the original dispersal area for housing claims with the aim of reducing onward movement”: E. Stewart and M. Shisheva, “Moving On? Dispersal Policy, Onward Migration and Integration of Refugees in the UK,” Dec. 2015, at 3. As the study noted, “in order to alleviate some of the difficulties which the local connection rule presents for refugees, local authorities could develop clear guidance on its application to refugees, including its discretionary nature and any flexibility in relation to what constitutes a local connection. In particular, the ‘family associations’ criterion could be applied more broadly, in line with existing guidance, to relatives with whom there are sufficiently close links or dependency”: ibid. at 6. Weis, Travaux, at 163.

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property rights,668 the Secretariat was initially skeptical that any further reference to housing would be helpful.669 This is an important starting point, since many housing concerns are in fact most appropriately addressed by invocation of other Convention-based or general international human rights. In line with the Secretariat’s observation, Sudan’s denial to refugees of the right to buy a home,670 Pakistan’s prohibition on renting to Afghan refugees,671 and Slovenia’s refusal to grant refugees access to non-profit rental units672 all raise property rights concerns. This is because Art. 13 of the Convention expressly includes the right of refugees not only to own property, but also to benefit from “leases and other contracts relating to movable and immovable property.”673 Nor is the right to property the only basis for insistence upon what may broadly be thought of as housing rights. The duty of states to ensure the life674 and physical security675 of refugees was breached by Burundi and Thailand when they forced refugees to live in border zones prone to armed conflict.676 The forcible expulsion of refugees from their homes is another clear example of activity that may breach the duty to protect basic physical security and even life, as was observed by the Supreme Court of India in response to efforts by private groups to drive Chakma refugees from their homes:677 The State is bound to protect the life and liberty of every human being, be he a citizen or otherwise, and it cannot permit anybody or any group of persons . . . to threaten the Chakmas . . . No State Government worth the name can tolerate such threats . . . The State Government must act impartially and carry out its legal obligation to safeguard the life, health and wellbeing of Chakmas residing in the State without being inhibited by local politics . . . Except in accordance with law, the Chakmas shall not be evicted from their homes and shall not be denied domestic lives and comfort therein. The quit notices and ultimatums issued . . . [are] tantamount to threats to 668 669

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See Chapter 4.5.1, note 1978. “[I]n Mr. Humphrey’s opinion, the provisionally adopted article [13] might be considered to cover the question in a certain sense”: Statement of the Chairman, Mr. Chance of Canada, UN Doc. E/AC.32/SR.15, Jan. 27, 1950, at 11. See text at note 644. 671 See text at note 643. 672 See text at note 654. Refugee Convention at Art. 13. See Chapter 4.5.1 at note 1975. See also S. Leckie and E. Simperingham, “Article 21,” in A. Zimmermann ed., The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary 1003 (2011) (Leckie and Simperingham, “Article 21”), at 1008: “[T]he denial to refugees of the ability freely to rent accommodation or to buy a home could raise both housing and property rights concerns.” See Chapter 4.3.1. “States must address issues of inadequate housing and homelessness and name them as core human rights issues linked to the right to life”: UN Secretary General, “Adequate Housing as a Component of the Right to an Adequate Standard of Living,” UN Doc. A/71/310, Aug. 8, 2016, at [73]. See Chapter 4.3.3. 676 See text at notes 633 and 632. 677 See text at note 639.

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the life and liberty of each [and] every Chakma, [and] should be dealt with . . . in accordance with law.678

Similarly, when the shortage of sanitation facilities and latrines led to cholera outbreaks in Bangladesh and Kenya,679 and when unhygienic conditions led to the transmission of Lassa fever from rodents to refugees in Sierra Leone,680 the refugees’ right to health was violated.681 And the right of refugees to enjoy freedom of residence and internal movement682 is infringed not only by the practice of many Southern countries to confine refugees in camps or settlements on an indefinite basis683 but also indirectly by practices such as the Jordanian ban on the provision of non-governmental housing aid to refugees who prefer to self-settle rather than to live in organized camps or refugee communities.684 When any of these more general rights is infringed, there is no need to rely upon a right to housing in order to secure protection.685 The incorporation in the Refugee Convention of a specific provision addressed to housing rights resulted from the decision described earlier686 to adopt the text of the ILO’s Migration for Employment Convention as the basis for the Refugee Convention’s Art. 24(1)(a) guaranteeing fair conditions of employment to refugee workers. One of the ILO guarantees not imported into the Refugee Convention was the right of migrant workers to benefit from national treatment with regard to employee accommodation.687 In agreeing to the omission of this provision from the Refugee Convention’s rule on conditions of employment, the American representative to the Ad 678

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National Human Rights Commission v. State of Arunachal Pradesh, (1996) 83 AIR 1234 (In. SC, Jan. 9, 1996). See text at note 623. 680 See text at note 624. See Chapter 4.4.3 at note 1885 ff. (regarding the duty to ensure basic healthcare in even very poor states). See Chapter 5.2. 683 Ibid. at note 337 ff. See text at note 637. The detrimental impact on refugee freedom of movement resulting from the UK’s “deemed connection” system for access by refugees to public housing was noted in the English Court of Appeal: Ozbek v. Ipswich Borough Council, [2006] EWCA Civ 534 (Eng. CA, May 4, 2006), at [67], per Sedley L.J., and at [68], per Arden L.J. “States are obliged to adopt ‘enabling strategies’ to implement the right to housing for residents of informal settlements within the shortest possible time, by all appropriate means, using the maximum of available resources. It is obvious that most States are in clear non-compliance with this obligation”: UN Secretary-General, “Report of the Special Rapporteur on Adequate Housing as a Component of the Right to an Adequate Standard of Living, and on the Right to Non-discrimination in this Context: Note by the Secretary-General,” UN Doc. A/73/310/Rev.1, Sept. 19, 2018, at [12]. “Homelessness is an extreme violation of the rights to adequate housing and nondiscrimination and often also a violation of the rights to life, to security of person, to health, to protection of the home and family and to freedom from cruel and inhuman treatment”: UN Human Rights Council, “Report of the Special Rapporteur on Adequate Housing as a Component of the Right to an Adequate Standard of Living, and on the Right to Non-discrimination in this Context,” UN Doc. A/HRC/31/54, Dec. 30, 2015, at [4]. See Chapter 6.1.2 at note 248. 687 Ibid. at note 277.

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Hoc Committee gave notice that “although he did not think the reference to housing should be inserted at that point in the convention, he felt it should be included at a later stage. It might form the subject of a separate article which would apply to the whole draft convention and not only to the provisions regarding labour.”688 The goal of the American project was not to reiterate the property rights protections of Art. 13. Mr. Henkin wished instead to ensure that “refugees might benefit under any social welfare measures taken by States with a view to providing housing accommodation for certain categories of persons.”689 Yet because Art. 23 explicitly addresses public relief, Robinson opines that Art. 21 as ultimately agreed should be understood to deal with such matters as “rent control and assignment of apartments and premises.”690 Similarly, Grahl-Madsen logically contends that the right of refugees to housing under Art. 21 includes “not only the obtaining of [a] dwelling-place, but also participation in schemes for financing of the construction of dwelling-places (cf. the expression ‘housing schemes’).”691 In practice, the boundary between rights grounded in Art. 21’s provisions on housing and those more appropriately conceived as aspects of a public relief program governed by Art. 23 is unclear. Yet the distinction will often be important, since refugees lawfully staying in an asylum country must be assimilated to nationals for purposes of public relief,692 whereas Art. 21’s provisions on housing require only that they receive “treatment as favourable as possible and, in any event, not less favourable than that accorded to aliens 688

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Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.14, Jan. 26, 1950, at 10. Several governments were opposed to this initiative. Denmark, for example, argued that “the Migration for Employment Convention had been prepared in the interests of a group who desired to become productive members of a national community. Refugees constituted a different group; many of them were unfitted to make any constructive contribution to the life of the community. For that reason he was uncertain whether the provisions of the ILO document could be made to apply to the case of refugees”: Statement of Mr. Larsen of Denmark, ibid. at 9. The Chinese representative did not wish to accept any obligation on this matter, noting that “[h]is own country, devastated by war and suffering from a grave shortage of housing, had taken urgent measures, following the end of the Second World War, to relieve the suffering of the refugees; these measures had often placed the refugees in a more advantageous position, from the point of view of housing, than many Chinese nationals. He felt that the matter of housing should be left to the initiative and control of the individual Governments”: Statement of Mr. Cha of China, ibid. at 10. The decision to include an article on housing was only narrowly approved on a 5–2 (4 abstentions) vote: ibid. Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.15, Jan. 27, 1950, at 11. Robinson, History, at 120. Weis goes still farther, arguing that Art. 13 includes “housing schemes and allocation of premises for the exercise of one’s occupation”: Weis, Travaux, at 163. Weis provides no justification, however, for his view that the right of refugees to “housing” includes the right to premises from which to engage in business; as a matter of ordinary construction, this conclusion is suspect. Grahl-Madsen, Commentary, at 84. 692 See Chapter 6.3 at note 538.

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generally in the same circumstances.” For reasons described below,693 this standard of treatment clearly falls short of a duty to treat refugees on par with citizens of the kind set by the public relief provisions of Art. 23. In line with the approach taken by Robinson and Grahl-Madsen,694 an interpretation that distinguishes Art. 21 housing rights from Art. 23’s entitlement to public relief on the basis of the essential goal of the initiative in question makes the most sense, allowing the two provisions to be read harmoniously.695 Despite the American delegate’s reference to Art. 21 as focused on the “social welfare” aspect of housing, it is difficult to see why a state that assists the destitute or disabled by direct cash payments should be bound to the higher standard of Art. 23, whereas a government that provides such persons with in-kind access to free or subsidized accommodation would have to meet only the lower test of Art. 21. For this reason, and taking particular account of the broad scope of Art. 23,696 initiatives that regulate benefits on the basis of need (rather than generically) should be deemed in pith and substance to be forms of relief or assistance subject to the requirements of Art. 23. As such, both the denial of public housing to temporarily protected refugees in the United States697 and Hungary’s decision to bar refugees from housing support infringe the duty to assimilate lawfully staying refugees to citizens for social welfare purposes. Australia is similarly obliged by Art. 23 to bring to an end the regional variation in the extent to which refugees granted TPV status are granted housing benefits.698 Indeed, because the Refugee Convention mandates the full enfranchisement of refugees within any scheme that assists homeless or poorly housed nationals, even the United Kingdom’s imposition of a more exacting “local connection” requirement for refugees to access public housing699 is also at odds with Art. 23. In contrast, Turkey’s policy of providing refugees with cash to meet housing costs equal to the social assistance available to citizens700 is a good example of a program regulated by, and in line with, the duty to provide refugees with national treatment under public welfare schemes, including those which address access to housing. So conceived, the focus of Art. 21 is on policies or programs which regulate or control housing in general terms – for example, rent controls, landlord– tenant laws, or schemes to assist in the construction or purchase of a home. As originally proposed, Art. 21 would have regulated only housing matters “regulated by laws and regulations or . . . subject to the control of Governmental authorities [emphasis added].”701 But the Ad Hoc Committee decided that the 693 695

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See text at note 715. 694 See text at notes 690–691. This approach is characterized as offering “a more direct delineation”: Leckie and Simperingham, “Article 21,” at 1009. See Chapter 6.3 at note 538. 697 See text at note 648. 698 See text at notes 649–651. See text at note 666. 700 See text at note 645. This was the language submitted to the Ad Hoc Committee by Mr. Henkin of the United States, UN Doc. E/AC.32/SR.24, Feb. 3, 1950, at 12.

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provisions of Art. 21 should apply also “in so far as [housing] lies within the discretion of local governmental authorities.”702 This view is reflected in the decision to amend the text initially to refer to matters subject to the control “of governmental authorities [emphasis added],”703 then finally to speak simply to matters under the control “of public authorities.”704 In the result, the Refugee Convention’s guarantee of housing rights applies whenever a refugee claims the benefit of a housing policy or program over which some level of government705 exercises authority, whether that official control is formal (by law or regulation) or simply practical (administration, oversight, or review).706 Indeed, while there is little doubt about the principle that purely private housing programs are exempt from the requirements of the Convention’s provision on housing,707 the breadth of modern-day regulation of private activity in the field of housing, particularly to guard against discrimination, may mean that in practice there are few aspects of housing policy that will escape scrutiny under Art. 21. For example, Canadian and German laws barring discrimination in access to housing mean that Art. 21 is engaged when landlords in those countries refuse to rent to refugees.708 And similar protections in Austria mean that the government is in breach of Art. 21 if it fails to take action to stop online real estate search portals from deterring applications from refugees.709 The value to refugees of Art. 21 is nonetheless constrained in two important ways. First, an amendment late in the drafting process raised the required level of attachment for access to housing rights from simply refugees “lawfully in” a state’s territory710 to refugees “lawfully staying in” the territory. The benefit 702

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Statement of the Chairman, Mr. Chance of Canada, ibid. at 13. Speaking as the representative of Canada, Mr. Chance had earlier voiced his approval for Art. 21 “on the condition that it was compatible with the federal laws in force in his country”: ibid. at 12. “Decisions of the Committee on Statelessness and Related Problems taken at the meetings of 3 February 1950,” UN Doc. E/AC.32/L.28, Feb. 3, 1950, at 2. Ad Hoc Committee, “First Session Report,” at Annex I. This language is consistent with the text of the predecessor ILO Convention on migrant worker rights: see Chapter 6.1.2 at note 257. “It is an obligation incumbent not only on the state but also on all other public authorities (municipalities, regional self-governments)”: Robinson, History, at 120. The agreement that regulatory (as opposed to statutory) involvement is sufficient to bring Art. 21 into play is clear from the change to a disjunctive formulation (“regulated by laws or regulations”): “Decisions of the Committee on Statelessness and Related Problems taken at the meetings of 3 February 1950,” UN Doc. E/AC.32/L.28, Feb. 3, 1950, at 2. This amended text was in line with the original ILO precedent: see Chapter 6.1.2 at note 257. See Grahl-Madsen, Commentary, at 84: “If housing is left entirely to private enterprise, the State is not obliged to interfere and pass laws simply in order to ensure that refugees will find suitable accommodation.” See text at notes 658–659. 709 See text at note 660. This formulation was endorsed at all stages of the work of the Ad Hoc Committee, including in its final report: Ad Hoc Committee, “Second Session Report,” at 20.

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of Art. 21 may therefore be claimed only by refugees present on an ongoing basis, including, for example, recognized refugees and refugees granted socalled “temporary” or other durable forms of status.711 No explanation was given for this shift.712 While likely prompted by concern not to exacerbate acute postwar housing shortages for their own citizens,713 the result is that Art. 21 – in essence, an auxiliary property rights provision – is accessible to only a subset of refugees able to invoke the more general guarantee of property rights set by Art. 13 of the Convention.714 Second, Art. 21 sets the qualitative benchmark for refugee housing rights as those which inhere in “aliens generally in the same circumstances.” While this is a low contingent standard,715 it is “not merely [an obligation] not to discriminate against refugees.”716 It rather has affirmative content in the sense of incorporating by reference all general sources of relevant rights,717 and requiring that governments consider in good faith the more complete enfranchisement of refugees.718 It is nonetheless not tantamount to requiring the assimilation of refugee housing rights to those of citizens.719 Despite the early plea of the French government,720 and a Yugoslav initiative advanced at the Conference of 711 712

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See Chapter 3.1.4. The altered language seems to have been agreed to in the Style Committee: “Report of the Style Committee,” UN Doc. A/CONF.2/102. See e.g. the comments of the Chinese delegate at note 688; and of the British delegate at note 722. See Chapter 4.5.1. 715 See Chapter 3.2. Statement of Mr. Cuvelier of Belgium, UN Doc. E/AC.32/SR.24, Feb. 3, 1950, at 13. While it has been argued that “the reasoning that Art. 21 offers more than non-discrimination is not completely compelling” (Leckie and Simperingham, “Article 21,” at 1016), this conclusion seems not to take account of the additional duty to consider full enfranchisement in good faith which, as UNHCR notes,“imposes a standard which goes beyond the negative duty not to discriminate against refugees”: UNHCR, “Rights of Refugees in the Context of Integration: Legal Standards and Recommendations” (June 2006), UN Doc. POLAS/2006/02, at 56. See Chapter 3.2.1. Ibid. at note 256. It may also be relevant that there is a duty to exempt refugees from the application of general requirements for access to housing which cannot in practice be met in view of the refugee’s particular circumstances: see Chapter 3.2.3. This point was made by the International Refugee Organization, which argued that “in many countries it is not possible to speak of general treatment in relation to . . . housing. These matters are frequently subject to administrative regulations which are often framed with other objects in view than the distinction between nationals and aliens, e.g. service in national armies, local residential qualifications, etc., or leave much discretion to the competent authorities”: United Nations, “Compilation of Comments,” at 40. The French delegate “had altered his opinion and was now convinced that the reference [in the ILO migrant workers treaty used as a precedent] was to general housing . . . and that in cases where such legislation existed, equal treatment should be accorded to refugees and nationals. That was the more liberal interpretation, which . . . he believed his Government would endorse”: Statement of Mr. Rain of France, UN Doc. E/AC.32/ SR.14, Jan. 26, 1950, at 9.

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Plenipotentiaries,721 most governments were not prepared to grant refugees all of the housing rights provided to their own citizens, preferring to reserve the right to limit special housing programs to at least some parts of their own populations. For example, the representative of the United Kingdom argued that In his own country it would be difficult to guarantee exactly equal treatment for refugees in the matter of housing, since the housing shortage was acute and the matter had to be dealt with on the basis of need. It was also felt that a certain degree of preference as regards housing should be given to some categories of nationals, such as ex-servicemen.722

The vagueness of the European Union directive applicable to temporarily protected refugees – requiring only that they receive “access to suitable accommodation”723 – cannot therefore be criticized by reference to Art. 21 for failing to codify any particular qualitative standard.724 Indeed, the European Union’s decision to enfranchise recognized refugees on par with legally resident third-country nationals725 is, while commendable, clearly a standard that exceeds what is required by the Refugee Convention. Nor even does the duty to treat refugees “as favourably as possible” compel governments to grant refugees special benefits relative to other non-citizens.726 There is thus no violation of Art. 21 when refugees must endure the same hardships in accessing housing as other non-citizens – as is the case, for example, in France where a tight housing market and high unemployment combine to make finding affordable accommodation very difficult for newcomers in general.727 Because of these weaknesses,728 Art. 21’s guarantee of refugee housing will likely be most effectively advanced under norms of general human rights law.729 The most important such right is Art. 11 of the Covenant on Economic, Social and Cultural Rights.730 While analyzed previously in some depth in defining the right 721

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“[I]t would be unfair to refugees in countries where housing was controlled by the public authorities if they were treated differently from nationals in respect of housing. Unless refugees were given identical treatment, it would be impossible for them to secure accommodation”: Statement of Mr. Makiedo of Yugoslavia, UN Doc. A/CONF.2/SR.10, July 6, 1951, at 10–11. His amendment to this effect (UN Doc. A/CONF.2/31, at 2) was defeated on a 9–1 (7 abstentions) vote: ibid. at 11. Statement of Sir Leslie Brass of the United Kingdom, UN Doc. E/AC.32/SR.14, Jan. 26, 1950, at 8. See text at note 651. The regional notion of “suitability” must not, however, fall below the international legal standard of “adequacy”: See text at note 740. See text at note 653. 726 See Chapter 3.2.1 at note 258. 727 See text at note 662. Art. 21 has been fairly characterized as “a qualified and minimal protection”: Leckie and Simperingham, “Article 21,” at 1017. The same conclusion is reached in ibid. at 1008–1010. See generally Saul, ICESCR Commentary, at 926 ff. Importantly, the flexibility usually enjoyed by less developed states to exclude non-citizens from economic rights under Art. 2(3) of the Covenant “does not extend to the core content of these rights . . . specifically

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to housing of all refugees – even those who have no legal status in an asylum state – as an aspect of acquiring the necessities of life,731 Art. 11 of the Economic Covenant is also valuable as a means of overcoming the weaknesses of the Refugee Convention’s more general protection of housing rights under Art. 21. This is because the guarantees set by the Economic Covenant establish an authoritative qualitative baseline for the attribution of housing rights to all persons – including refugees.732 At its core, the Committee on Economic, Social and Cultural Rights has observed that the essential requirement of Art. 11(1) is that “everyone”733 – including “refugees [and] asylum-seekers . . . regardless of legal status”734 – must enjoy the right “to live somewhere in security, peace and dignity.”735 Poland’s decision to provide no social housing for either refugees or its own population736 is thus not compatible with this duty. Nor are policies that discriminate737 – for example, the rules in parts of Bulgaria that limit access to other than short-term housing to persons who have been residents for at least ten years738 – even if such rules are thought to be justified on the basis of a local scarcity of resources.739

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including the right to [‘basic shelter and housing’]”: Leckie and Simperingham, “Article 21,” at 1010. Yet as the Constitutional Court of South Africa has made clear, “[t]he determination of a minimum core in the context of ‘the right to have access to adequate housing’ presents difficult questions. This is so because the needs in the context of access to adequate housing are diverse: there are those who need land; others need both land and houses; yet others need financial assistance”: Government of South Africa et al. v. Irene Grootboom, Dec. No. CCT 11/00 (SA CC, Oct. 4, 2000), at [33]. The debate might be avoided if housing is understood to be a “social” rather than an “economic” right, and thus not subject to Art. 2(3) at all. See Chapter 4.4.2. “The right to adequate housing has been the most comprehensively clarified of all housing related rights”: Leckie and Simperingham, “Article 21,” at 1011. “The right to adequate housing applies to everyone”: UN Committee on Economic, Social and Cultural Rights, “General Comment No. 4: The Right to Adequate Housing” (1991), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [6]. UN Committee on Economic, Social and Cultural Rights, “General Comment No. 20: Non-discrimination in Economic, Social and Cultural Rights,” UN Doc. E/C.12/GC/20, July 2, 2009, at [30]. Ibid. at [7]. 736 See text at note 656. “In particular, enjoyment of this right must, in accordance with Article 2(2) of the Covenant, not be subject to any form of discrimination”: UN Committee on Economic, Social and Cultural Rights, “General Comment No. 4: The Right to Adequate Housing” (1991), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [6]. Critically, “[e]liminating discrimination in practice requires paying attention to groups of individuals who suffer historical or persistent prejudice instead of merely comparing the formal treatment of individuals in similar situations”: UN Committee on Economic, Social and Cultural Rights, “General Comment No. 20: Non-discrimination in Economic, Social and Cultural Rights,” UN Doc. E/C.12/GC/20, July 2, 2009, at [8]. See text at note 665. “States must ensure that local and subnational governments have adequate financial and other resources for the discharge of their responsibilities, with capacity to respond to

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The Committee has moreover emphasized that Art. 11 of the Economic Covenant does not simply establish a right to housing, but rather to “an adequate standard of living . . . including adequate . . . housing [emphasis added].”740 It has gone on to elaborate a set of standards against which to assess compliance with this duty. In particular, the Committee has determined that housing is only adequate if it is affordable; accessible to all, including in particular the disadvantaged; and located in a place that is not impractically remote and which affords reasonable access to services, materials, facilities, and infrastructure.741 Art. 11 was thus not respected when Bosnia and Croatia742 forced refugees to live in marginal areas where they have little chance of becoming self-sufficient. The refusal of some asylum countries to allow refugee settlements to expand in a way that ensures the continuing viability of infrastructure to meet the needs of their inhabitants is also a failure to ensure adequate housing – as occurred, for example, when Sudan and Uganda assigned refugees to live on marginal land with an inadequate water supply.743 More specifically, the accommodation itself must be habitable, meaning that it provides protection from the elements and other hazards.744 This duty was clearly breached by Tanzania’s relegation of refugees to makeshift tents with no floors or mattresses,745 by the Bangladeshi decision to require Rohingya refugees to live in areas subject to dangerous rains and cyclones,746 and when Djibouti assigned Yemeni refugees to camps infested with scorpions, snakes, and baboons.747 Programs such as Turkey’s initiative to build creative container houses for refugees748 and Ethiopia’s construction of waterproof homes for refugees using inexpensive and locally available eucalyptus and bamboo show that it is possible to meet the Economic Covenant’s requirement to provide “adequate” housing to all even in the face of difficult circumstances. Housing is also adequate only if it is culturally appropriate and can be enjoyed with reasonable security of tenure.749 In particular, the Committee

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changing housing needs at the local level, particularly of marginalized and disadvantaged groups”: UN Human Rights Council, “Report of the Special Rapporteur on Adequate Housing as a Component of the Right to an Adequate Standard of Living, and on the Right to Non-discrimination in this Context,” UN Doc. A/HRC/28/62, Dec. 22, 2014, at [76(g)]. “The human right to adequate housing, which is thus derived from the right to an adequate standard of living, is of central importance for the enjoyment of all economic, social and cultural rights”: UN Committee on Economic, Social and Cultural Rights, “General Comment No. 4: The Right to Adequate Housing” (1991), UN Doc. HRI/ GEN/1/Rev.7, May 12, 2004, at [1]. Ibid. at [8]. 742 See text at note 629. 743 See text at notes 627–628. UN Committee on Economic, Social and Cultural Rights, “General Comment No. 4: The Right to Adequate Housing” (1991), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [8]. See text at note 609. 746 See text at note 630. 747 See text at note 631. See text at note 645. UN Committee on Economic, Social and Cultural Rights, “General Comment No. 4: The Right to Adequate Housing” (1991), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [8]. “[S]ecurity of tenure, as the cornerstone of the right to adequate housing, is essential for

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has concluded that “instances of forced eviction are prima facie incompatible with the requirements of the Covenant and can only be justified in the most exceptional circumstances, and in accordance with the relevant principles of international law.”750 The efforts to expel Chakma refugees from their homes in India751 were therefore in breach not only of basic security rights as described above,752 but also of the right to adequate housing. In implementing housing rights, governments are moreover under a duty to give special attention to the housing needs of “social groups living in unfavorable conditions.”753 As the UN Special Rapporteur on Adequate Housing observed, “[r]efugees . . . are most likely to find themselves homeless or relegated to the most marginal and unsafe places in cities, treated as noncitizens or outsiders.”754 This analysis thus suggests a duty on the part of Jordan, Lebanon, and Turkey to take affirmative measures to respond to the special difficulties faced by unaccompanied refugee women,755 and on Portugal to prioritize the needs of vulnerable refugees in its public housing policy.756 The flexibility shown by the municipal government of Berlin – taking account of the particular challenges faced by refugees in finding housing by allowing them to spend a greater percentage of their welfare allocations on

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human dignity and to sustain an adequate standard of living”: UN Human Rights Council, “Report of the Special Rapporteur on Adequate Housing as a Component of the Right to an Adequate Standard of Living, and on the Right to Non-discrimination in this Context,” UN Doc. A/HRC/22/46, Dec. 24, 2012, at [97]. But “freehold titles are not the sole instrument of tenure security . . . [P]olicies favouring diverse tenure forms [e.g. possession rights, use rights, collective tenure, housing cooperatives, community land trusts, and hybrid tenure models] can improve secure access to housing for different population groups”: UN Human Rights Council, “Report of the Special Rapporteur on Adequate Housing as a Component of the Right to an Adequate Standard of Living, and on the Right to Non-discrimination in this Context,” UN Doc. A/HRC/25/54, Dec. 13, 2013, at [8]. UN Committee on Economic, Social and Cultural Rights, “General Comment No. 4: The Right to Adequate Housing” (1991), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [18]. The duty to avoid forced eviction has been elaborated in a specific general comment: UN Committee on Economic, Social and Cultural Rights, “General Comment No. 7: The Right to Adequate Housing: Forced Evictions” (1997), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at 46. See Chapter 4.4.2 at note 1813 ff. See text at note 639. 752 See text at note 677. UN Committee on Economic, Social and Cultural Rights, “General Comment No. 4: The Right to Adequate Housing” (1991), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [11]. UN Special Rapporteur on Adequate Housing, “Report of the Special Rapporteur on Adequate Housing as a Component of the Right to an Adequate Standard of Living, and on the Right to Non-discrimination in this Context,” UN Doc. A/70/270, Aug. 4, 2015, at [38]. See text at notes 641–642. See e.g. UN Human Rights Council, “Report of the Special Rapporteur on Violence against Women, its Causes and Consequences,” UN Doc. A/ HRC/17/26/Add.3, May 19, 2011, at [80(c)], recommending that Algeria “tak[e] measures that meet women’s housing . . . needs, particularly victims of violence, single and other marginalized women.” See text at note 655.

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rent757 – is in contrast very much in the spirit of what the Committee has recommended. States must also seek out international aid where necessary to comply with the duty to ensure adequate housing758 – a duty which Lebanon failed to meet when it refused to build decent refugee housing despite the fact that construction was fully externally financed.759 And of real importance to many refugee communities, there is a duty to undertake “extensive genuine consultation with, and participation by, all of those affected, including the homeless”760 – meaning that there is a failure to respect the right to adequate housing when local authorities and the aid agencies working with refugees fail meaningfully to involve refugees in the planning of their homes and communities.761 It has more recently been suggested that Art. 11 may even compel states to take action in response to the scarcity of housing occasioned by the financialization of housing: Many States have been too deferential to the dynamics of unregulated markets and have failed to take appropriate actions to bring private investment into line with the right to adequate housing. By providing tax subsidies for homeownership, tax breaks for investors, and bailouts for banks and financial institutions, States have subsidized the excessive financialization of housing at the expense of programmes for those in desperate need of housing.762

6.5 Freedom of Expression and Association In the liberal tradition, freedom of expression is thought to be “an indispensable prerequisite for life in society based on the principles of rationalism and 757 758

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See text at note 664. UN Committee on Economic, Social and Cultural Rights, “General Comment No. 4: The Right to Adequate Housing” (1991), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [10]. See text at notes 613–614. UN Committee on Economic, Social and Cultural Rights, “General Comment No. 4: The Right to Adequate Housing” (1991), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [12]. See text at note 615. UN Human Rights Council, “Report of the Special Rapporteur on Adequate Housing as a Component of the Right to an Adequate Standard of Living, and on the Right to Nondiscrimination in this Context,” UN Doc. A/HRC/34/51, Jan. 18, 2017, at [76]. More generally, “in private spheres, including in the housing and lending sectors . . . States parties have the obligation to guarantee the enjoyment of Covenant rights to all without discrimination. The requirement to eliminate formal as well as substantive forms of discrimination includes a duty to prohibit discrimination by non-State entities in the exercise of economic, social and cultural rights”: UN Committee on Economic, Social and Cultural Rights, “General Comment No. 24: States’ Obligations under the International Covenant on Economic, Social and Cultural Rights in the Context of Business Activities,” UN Doc. E/C.12/GC/24, Aug. 10, 2017, at [7].

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mutual respect for human dignity.”763 Individuals are allowed to participate in a two-way flow of information and ideas, and then to stimulate both attention to, and discussion of, their views. As a practical matter, meaningful engagement in this process of exchange is often possible only where there is scope for individuals to act collectively. As Jayawickrama explains, [T]he attainment of individual goals, through the exercise of individual rights, is generally impossible without the aid and co-operation of others. Uniting protects individuals from the vulnerability of isolation. It enables those who would otherwise be ineffective to meet on more equal terms the power and strength of those with whom their interests interact and, perhaps, conflict.764

The motivation to organize is found no less among refugees. In fact, the circumstances of their flight and exile often lead refugees to value their expressive rights particularly highly: Exiles are under enormous pressure to organize politically, and their status alone is proof of their political disenfranchisement at home. Within the asylum country as well, exiles are likely to be politically, economically, and socially vulnerable. They rarely have representation within the asylum State’s political system, and the national and international agencies chartered to assist them typically give inadequate consideration to their views. Members of an exile community will also likely share a racial, national, religious, or social characteristic which marked them as a target for persecution in the country of origin. Such circumstances make some level of political organization inevitable.765

Equally important, “[b]eing able to undertake peaceful political activity and having a political forum in exile is often indispensable in order to have effective and representative interlocutors for future peace and reconciliation processes.”766 Refugees organize for many reasons. Participation in associations may help them counteract feelings of isolation, increase their self-esteem, and lessen their sense of alienation.767 For refugees likely to remain in the asylum country, the ability to join local political associations may be helpful to the promotion of assimilation – as the policies of states such as Sweden, the United Kingdom, and Germany openly to permit refugees to join or support political parties 763

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W. Schabas, UN International Covenant on Civil and Political Rights: Nowak’s CCPR Commentary (2019) (Schabas, Nowak’s CCPR Commentary), at 542. Jayawickrama, Judicial Application, at 854–855. S. Corliss, “Asylum State Responsibility for the Hostile Acts of Foreign Exiles,” (1990) 2(2) International Journal of Refugee Law 181 (Corliss, “Hostile Acts”), at 192. da Costa, “Right of Refugees in the Context of Integration,” at 166. J. Sorenson, “Opposition, Exile and Identity: The Eritrean Case,” (1990) 3 Journal of Refugee Studies 298, at 313.

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without regard to their status of citizens768 impliedly acknowledge. Refugee associations may alternatively play a role in preserving values and elements of identity of the refugee community within the context of a dominant host culture – for example, language, family structure, and religious beliefs. Such associations, while obviously incapable of rendering refugees impervious to acculturation, may nonetheless play a critical role in allowing refugees better to position themselves for successful readjustment in the event repatriation proves ultimately to be possible.769 One of the most fundamental reasons leading refugees to form associations is the need to work collectively to provide for their necessities of life770 – as was the case for Tibetan refugees in India, Angolan refugees in Zambia, and Mozambican refugees in Swaziland.771 Refugees have also organized so as to be represented before host country and international authorities, and to facilitate the establishment and delivery of education, healthcare, and other social services. Bhutanese refugees in Nepal, for example, formed groups to advocate for refugee education and healthcare, to establish professional and technical organizations, to aid victims of violence, and to provide opportunities for subpopulations such as women, young people, and students to share concerns and devise coping strategies.772 Salvadoran refugees in Honduras created a structure of elected representatives to self-govern their camps, including the running of health campaigns, workshops, and schools, the distribution of food and clothing, and delivery of pastoral services.773 Eritrean nationalist groups represented the refugee population before the Sudanese government and international relief organizations, operated health clinics and schools, and orchestrated community development initiatives.774 But not all who organize are afforded such flexibility, as demonstrated by the treatment of refugees 768

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A. Bekaj and L. Antara et al., “Political Participation of Refugees: Bridging the Gaps,” Institute for Democracy and Electoral Assistance (2018) (Bekaj and Antara, “Political Participation”), at 43–47. M. Castillo and J. Hathaway, “Temporary Protection,” in J. Hathaway ed., Reconceiving International Refugee Law 1 (1997), at 11. See generally P. Van Arsdale, “The Role of Mutual Assistance Associations in Refugee Acculturation and Service Delivery,” in M. Hopkins and N. Donnelly eds., Selected Papers on Refugee Issues II 156 (1993). D. Keen, Refugees: Rationing the Right to Life (1992), at 60–61. These organizations included the Bhutanese Refugees Educational Coordinating Committee, Bhutan Health Organization, Association of Bhutanese Professionals and Technicians, Bhutanese Refugees Aiding Victims of Violence, Bhutan Women’s Association, Refugee Women Committee, Youth Organization of Bhutan, Students Union of Bhutan, as well as several Bhutanese human rights organizations: G. Siwakoti, International Academy of Comparative Law National Report for Nepal (2002), at 10. J. Hammond, “War-Uprooting and the Political Mobilization of Central American Refugees,” (1993) 6(2) Journal of Refugee Studies 105, at 110. Corliss, “Hostile Acts,” at 192.

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advocating for an improved camp economy in the Kyangwali Refugee Settlement of Uganda: Even though the refugees possess a political institution mirroring the form of the local government’s system, the Refugee Welfare Council (RWC), nearly all the refugees in Kyangwali . . . felt remarkably politically disempowered. As one refugee said, “There is no freedom of association or speech.” This acute perception of political disempowerment seems to have stemmed from a number of politically active refugees having been recently relocated to other refugee settlements. We spoke with many remaining refugees who expressed fear of being transferred out of the camp if they were accused of “meddling” in politics.775

Similarly, the Movement of Asylum Seekers in Ireland, which formed in protest of the country’s controversial direct provision centers, was excluded from the 2015 government review of that system.776 The participation of refugees in economic associations, particularly trade unions, may also be strictly regulated by way of special registration requirements, limitations on the number of non-citizens in a union, or the expulsion of refugees who participate in an unlawful strike.777 Conversely, many European states permit and even promote membership in trade unions, which is generally granted on the same terms as nationals.778 775

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E. Werker, “Refugee Camp Economies,” (2007) 20(3) Journal of Refugee Studies 461, at 466. As a result, “refugees are unable to effect changes in the institutional environment that can benefit them economically. There is potential for multiple small changes that together would have a noticeable positive impact on the refugees’ economic situation, yet such incremental change is effectively discouraged by virtue of the fact that the costs of political participation – potentially being expelled from the camp – are so high”: ibid. at 466–467. This was despite – or perhaps because of – the group’s growth from a ten-day strike among 300 residents of one such center, which was largely viewed as successful: “[f]or 10 days, they took over the centre, locking out staff and issuing a list of demands. Families cooked their own meals, children played without restrictions and residents spoke to journalists who came to see them. Eventually, the management conceded, promising a play area for children, new gym equipment and no more than two people in each bedroom”: R. Casey, “In Ireland, Refugees are Organising to Reform the Asylum System,” Al Jazeera, May 23, 2019. UNHCR,“Information Note on Implementation of the 1951 Convention and the 1967 Protocol relating to the Status of Refugees,” UN Doc. EC/SCP/66, July 22, 1991, at [76]. See e.g. F. Heckmann et al., “Migrants and their Descendants: Social Inclusion and Participation in Society, Germany 2015,” FRANET, at 40. Similar reports for other EU member states are available at “Country Studies for the Project on Social Inclusion and Migrant Participation in Society,” European Union Agency for Fundamental Rights, fra. europa.eu/en/country-data/2017/country-studies-project-social-inclusion-and-migrantparticipation-society, accessed Mar. 5, 2020. Individual trade unions may moreover adopt more generous rules than those mandated at the national level: “[f]or example, the National Union of Journalists allows membership for UK-based asylum seekers who are

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In the more explicitly political realm, the main concern of host states is generally that refugee associations not raise the risk of destabilization. For example, the arrest of Syrian refugee activists has deterred others from participating in Lebanese politics for fear that such activities would be viewed as foreign interference. As explained by one refugee, “Syrian refugees in Lebanon do not take positions in relation to Lebanese politics. They would rather keep a low profile in order to avoid getting into trouble.”779 Namibian authorities ordered the arrest of several refugee members of a musical group on the grounds that they had illicitly participated in domestic politics by performing at a Congress of Democrats function.780 And in Zimbabwe, refugees accused of funding political parties opposed to the government have been expelled.781 The suppression of refugee populations’ political expression is perhaps strongest when the host state is itself the object of criticism. Protests against the conditions of the Sikka detention center in Libya, for example, were met with excessive force by police, resulting in serious bodily injury to over fifty refugees.782 Similar protests against conditions in Egypt ended in the forcible eviction of more than 1,200 refugees from the affluent suburb in which they had camped, as well as at least twenty deaths.783 In late 2005, Yemeni authorities arrested Somali refugees engaging in a peaceful sit-in across from a UNHCR office; those detained were released only upon pledging not to conduct further demonstrations.784 And when a far-right mob descended

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prevented by law from working in the UK, and they are not required to pay subscription fees”: Bekaj and Antara, “Political Participation,” at 55. Bekaj and Antara, “Political Participation,” at 43. Namibian, June 16, 2000. While the Namibian courts subsequently intervened to prohibit the government from punishing the refugees by detaining or deporting them, the Minister of Home Affairs “responded to the order . . . by issuing statements attacking the judiciary, and to the effect that despite the order he would seek to arrest [the refugees] . . . Following a few tense weeks, an agreement was reached [providing that the refugees] would apply for work permits while returning to Osire [refugee camp] voluntarily”: Legal Assistance Centre, “Constitutional and Human Rights Unit Annual Report” (2000), at 5–6. LCHR, African Exodus, at 95. UNHCR, “Refugees Protest Conditions in Libyan Detention as Resettlement Solutions Falter,” Mar. 5, 2019. B. Whitaker, “20 Killed as Egyptian Police Evict Sudanese Protesters,” Guardian, Dec. 30, 2005. “Hundreds of Somali refugees took part in the sit-in, which began on November 13 and called for increased assistance, improved health services, renewal of national identity cards for work and school, and resettlement abroad. Although the Yemeni government grants Somalis prima facie refugee status upon their arrival in the country, protesters complained that the cards distributed by UNHCR were of no value and that the authorities were not respecting their rights in the 1951 Convention Relating to the Status of Refugees. In a December 20 statement, UNHCR noted that the agency had agreed to meet some of the demonstrators’ demands but that resettlement remained an option available to only a few and granted at the discretion of resettlement countries. In late January 2006, authorities released demonstrators who signed pledges not to protest again, but eight refused and

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upon Afghan refugees demonstrating against conditions in Greece’s notorious Moria detention camp, the refugee participants were charged with holding an “illegal” demonstration, while not a single attacker faced arrest.785 Constraints on political activity by refugees are especially common when refugees are living in designated camps. Denial of political rights may be part of a strategy that privileges management concerns over autonomy: The treatment of any kind of political activity in refugee camps as a security matter by host states and consequently by the UNHCR has had some impact on the general strategy adopted by the international agency . . . The UNHCR seems to welcome some forms of leadership and political organization amongst the refugees as long as it defines the criteria and controls the conditions for this.786

While encampment policies can facilitate abusive practices by authorities seeking to restrict legitimate political discussion, restrictions on speech may also reflect legitimate concern about the risks of violence that arise when refugees of different outlooks are forcibly confined together: For example, in the Great Lakes refugee crisis of the 1990s, victims of persecution often found themselves living in the same camps as powerful political forces from their home country who continued to exercise repressive control over them. This level of intimidation not only made it impossible for refugees to express their genuine political views, but in some cases led to violent attacks or forced conscription into military groups. Instances of extremist groups being able to indulge in “hate speech” propaganda from within refugee camps have also been reported.787

Political disagreements similarly inspired an attack in 2007 by refugees loyal to the Bhutanese Communist Party on fellow camp residents in Nepal who had voiced support for a US offer of resettlement.788

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remained in detention”: US Committee for Refugees and Immigrants, World Refugee Survey 2006, at 29–30. Although the refugees were later acquitted, the director of the organization that defended them declared that “[t]heir acquittal ‘warrants no celebrations . . . The mere fact that 110 participants of a peaceful protest were tried in a court of justice, after suffering a racist attack and disproportionate use of violence by the police, is deeply concerning’, he said. Local actors also raised concern over the impunity for the extremists involved in the attack, as 26 persons have been identified but none of them have faced trial yet”: ECRE, “100 Asylum Seekers Acquitted in Greece after Protest,” May 17, 2019. C. Lecadet, “Refugee Politics: Self-Organized ‘Government’ and Protests in the Agamé Refugee Camp (2005–13),” (2016) 29(2) Journal of Refugee Studies 187, at 190, 201. R. Mandal, “Legal and Protection Policy Research Series: Political Rights of Refugees,” UNHCR Department of International Protection, PPLA/2003/04, Nov. 2003, at 21. “The attackers beat at least one refugee leader and destroyed his and several other huts in Beldangi II camp in eastern Nepal. Similar attacks occurred in another camp, Beldangi I, where several huts, including the camp administration office, were also burnt down. In response to the violence, a contingent of the Nepal Armed Police opened fire on the mob

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Australia has constrained free speech in order to avoid adverse publicity regarding the conditions of detention for refugees sent to Nauru. The 2015 Borders Force Act made it a criminal offense for doctors and other government employees and contractors working in the facilities to reveal information about conditions there.789 The Act was implemented shortly after Nauru raised its visa fee for foreign journalists from US$200 to US$8,000 in a clear attempt to deter reporters from accessing its facilities.790 Those who nonetheless venture to the island nation may still face draconian restrictions: in an extreme case, one journalist was detained and temporarily stripped of accreditation for interviewing refugees without government permission.791

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and reportedly killed a teenage boy . . . ‘Nepali police need to protect the Bhutanese refugees and their right to peacefully express their views on resettlement or return,’ said Bill Frelick, Refugee Policy director of Human Rights Watch. ‘Factions of Bhutanese refugees divided over the resettlement issue should reflect on the tragic loss of these young lives and conclude that fighting each other will not solve their plight’”: Human Rights Watch, “Nepal: Bhutanese Refugee Tensions Erupt Into Violence,” May 31, 2007. A. Ramzy, “Australian Policies on Asylum Seekers Criticized as a Denial of Free Speech,” New York Times, Oct. 18, 2015. In response to a court challenge lodged by Doctors 4 Refugees, the Act was amended to exempt a range of healthcare professionals from its secrecy provisions, though “[o]ther professionals working in onshore and offshore immigration detention, including teachers, lawyers, security staff, social workers and other staff, have not been exempted from speaking out. They still face a jail term of up to two years for any ‘unauthorised disclosure’”: B. Doherty, “Doctors Freed to Speak about Australia’s Detention Regime after U-turn,” Guardian, Oct. 19, 2016. Such personnel have also been threatened with termination by the company under contract to run the processing center: B. Doherty, “Nauru Detention Centre Staff told they could Lose Jobs for Talking about Refugees,” Guardian, Sept. 5, 2018. “The [Home Affairs] Minister, Charmaine Scotty admits the move is a response to the significant damage that foreign media personnel inflict on Nauru through their negative coverage of the island’s role as a venue processing asylum seekers on Australia’s behalf. The minister says journalists seem to have made up their minds in advance of arriving to vilify Nauru. ‘With all the bad press that they come and do, we have extra hard problems in regards to the local community and the visitors that are called transferees. We have community programmes for them, community outreach programmes which are being severely held back because through the really bad press, the people in Nauru are getting really afraid of these people’”: Radio New Zealand, “Nauru’s Home Affairs Minister Defends Visa Fee Rise for Visiting Journalists,” Feb. 13, 2014. The draconian increase was later revealed to be implemented in part at the prompting of Australia: “according to one confidential document tendered to an Australian court as part of an affidavit in a Nauruan medical transfer case, ‘The governments of Australia and Nauru will agree to a media and visitor access policy and conditions of entry . . . Media seeking access to centre will be required to obtain permission from the [Nauruan] secretary for justice and to sign a media agreement’”: H. Davidson, “Australia Jointly Responsible for Nauru’s Draconian Media Policy, Documents Reveal,” Guardian, Oct. 3, 2018. “New Zealand journalist Barbara Dreaver was interviewed by police and had her forum accreditation withdrawn after independently speaking with refugees. After outcry she has had her accreditation reinstated. Other journalists have been allowed to interview refugees, but only with the prior approval of the Nauru government and only in the presence of government minders. The Nauru government said in a statement the controls of media

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State responses to political activity directed at the refugees’ country of origin range from toleration or even support of the refugees, to harsh “crack-downs” – it having been noted that “[w]hether or not a host government restricts the political activities of refugees depends almost entirely on its own alignments and preferences.”792 Pakistan thus actively supported the use of its territory by Afghan rebels engaged in anti-Soviet assaults, even to the point of delivering military aid from the United States to the refugee fighters.793 Turkey encouraged the use of its territory as a staging ground for attacks on Syria by the Free Syrian Army, which operated from a refugee camp near the Syrian border.794 While the Indian government initially tolerated the subversive activities of the Tamil refugees who arrived from Sri Lanka in the mid-1980s,795 militant groups were disarmed and the LTTE banned after the assassination of Rajiv Gandhi.796 South Korea similarly tolerated a balloon-launching campaign by North Korean refugees to deliver leaflets and USBs containing political material across the demilitarized zone, until one such launch provoked a shootout in 2014.797 Switzerland historically tolerated the activities of Tibetan refugee activists, but imposed

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had been imposed ‘to preserve public safety, and this is not unreasonable . . . Police and security agencies are genuinely concerned about safety and security risks should media take it upon themselves to enter refugee residential settlements where emotions are high’”: B. Doherty, “Nauru Detention Centre Staff told they could Lose Jobs for Talking about Refugees,” Guardian, Sept. 5, 2018. See also H. Davidson, “New Zealand Reporter Detained by Police on Nauru after Refugee Interviews,” Guardian, Sept. 4, 2018. LCHR, African Exodus, at 94. “Pakistan offered not only generous humanitarian assistance to the Afghan refugees, but also military aid and training to the mujahideen – allowing its territory to be used as an arms pipeline – and diplomatic support for the resistance . . . The multinational aid effort led by the US and Pakistan gave the Afghan resistance the support it needed to continue to fight, thus creating a refugee-based insurgency along the Pakistan–Afghanistan border”: L. Goodson, Afghanistan’s Endless War: State Failure, Regional Politics, and the Rise of the Taliban (2015), at 147. I. Debre, “Syrian Refugee Camps Secretly Turn into Rebel Staging Grounds,” Care2, Sept. 9, 2013; see also S. Al-Khalidi, “Exclusive: Turkey Boosts Arms to Syrian Rebels as Idlib Attack Looms – Rebel Sources,” Reuters, Sept. 12, 2018. Indira Gandhi’s administration was accused of actively assisting Sri Lankan guerrillas with aid and training, as well as turning a blind eye to smuggling and other illegal activities: B. Bastiampillai, “Sri Lankan Tamil Refugees in Tamilnadu: Trouble to the Host,” paper presented at the International Seminar on Refugees and Internal Security in South Asia, Colombo, July 1994, at 10. Ibid. at 12; US Committee for Refugees, World Refugee Survey 1993 (1993), at 93. The designation of LTTE as an “unlawful association” has continued and was most recently extended in 2019 for an additional five-year period: V. Singh, “Ban on LTTE Extended for Another Five Years,” Hindu, May 14, 2019. See J. Kim, “Sending Anti-Pyongyang Balloons Might Backfire . . . Says Ruling Party Chairman,” Korea Bizwire, Oct. 11, 2014. Although the launches gradually resumed afterward, South Korean authorities again urged the refugee organizers to abstain during the 2018 thaw in relations with the North: H. Shin and H. Yang, “South Korea Faces Dilemma over Anti-North Leaflets as Ties Thaw,” Reuters, May 5, 2018.

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a two-hour no-protest zone during the 2017 visit of China’s President Xi Jinping, resulting in the arrest of 32 of the more than 800 who defied the limitation.798 Kenya has alternated between restricting and allowing the political activities of successive generations of Ugandan refugees (depending upon whether the party benefitting from their support was in domestic political favor),799 and acquiesced in the kidnaping and forcible return of South Sudanese political activist refugees living in Nairobi.800 Constraints on refugee political activism can at times be motivated by a desire to avoid political tension with the countries that refugees have fled. For example, Thai police arrested Burmese refugees for planning a peaceful protest in front of the Burmese Embassy against the unlawful detention by that country’s military junta of then-opposition leader Aung San Suu Kyi. In doing so, they explicitly cited “the Prime Minister’s policy to keep order in the country by restricting the political activities of Burmese refugees in Thailand.”801 And refugees in Uganda have been prohibited from writing articles critical of their countries of origin, purportedly out of a concern that the state could not guarantee the security of refugees who might be targeted by their governments as a result.802 Yet as Corliss notes, “[f]ew exiles want to remain exiles, and a change in the political status quo is usually the only truly 798

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“Swiss authorities gave a two-hour window for the Tibetans to protest before Xi arrived for an official reception in Bern. Some 32 Swiss-Tibetan protesters were arrested as they shouted ‘Shame on China,’ ‘Free Tibet’ and ‘Don’t Deal with Killer’”: Y. Dorje, “Tibetans: Swiss Authorities Restricting Protests Against China’s Xi,” Voice of America, Jan. 17, 2017. See also Free Tibet, “Swiss Government Imposes No-Protest Zone on Tibet Demonstrations,” Jan. 16, 2017. Of perhaps greater concern, the local UNHCR representative, Reinier Thiadens, is reported to have declared that “our position is that political activities should not take place within the refugee camps”: R. Oduol, “Ethiopian Refugees Need Not Fear Harassment in Camps,” East African, July 2, 2001. “The kidnap of South Sudanese political activists and opposition supporters in Nairobi in January 2017, who were forcefully returned to South Sudan, has served as a warning, halting any political discussion among refugees on the unraveling situation in South Sudan . . . Concerns about deportation or the revocation of refugee status if caught participating in protests were raised by Somali refugees in Kenya and by many Congolese respondents in South Africa”: Bekaj and Antara, “Political Participation,” at 89. S. Phasuk, “Old Habits Die Hard,” Irrawaddy, July 4, 2003. The Prime Minister had earlier “threatened to repatriate pro-democracy activists after openly acknowledging that most would be persecuted on arrival in military-ruled Burma”: ibid. E. Andersson, “Political Rights for Refugees in Uganda: A Balance between Stability in the State and Respect for Human Rights,” Master Thesis 2013, at 19; see also ibid. at 14–21. Such limitations stem in part from Uganda’s broadly framed restrictions of freedom of expression in the Refugees Act of 2006, which provide that recognized refugees shall “not engage in any political activities within Uganda, whether at local or national level,” and that they shall “not engage in any activity contrary to the principles of the Charter of the United Nations and the Statute of the African Union, and in particular, shall not undertake any political activities within Uganda against any country, including his or her country of origin”: Refugees Act of 2006, at s. 35(d), (e).

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secure way to return home.”803 Such activities may be non-violent, including the establishment of opposition groups, or the conduct of public awareness campaigns such as those organized by Syrian refugees in Germany.804 But refugees may also establish armed bands, terrorist attacks, assassinations, and outright invasions – for example, the mobilization of Rwandese refugees in Uganda prior to the invasion of 1990,805 and the repeated violation of Cuban airspace by refugees from that country based in the United States.806 Indeed, such is the intensity of concern about the risk to interstate relations in Africa that the AU Refugee Convention requires refugees to “abstain from any subversive activities against any Member State”; state parties moreover “undertake to prohibit refugees residing in their respective territories from attacking any State Member . . . by any activity likely to cause tension between Member States, and in particular by use of arms, through the press, or by radio.”807 Refugee Convention, Art. 15 Right of Association As regards non-political and non-profit-making associations and trade unions, the Contracting States shall accord to refugees lawfully staying in their territory the most favourable treatment accorded to nationals of a foreign country, in the same circumstances. 803 805

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Corliss, “Hostile Acts,” at 195. 804 Bekaj and Antara, “Political Participation,” at 85. C. Watson and US Committee for Refugees, “Exile from Rwanda: Background to an Invasion,” Feb. 1991. See also Corliss, “Hostile Acts,” at 199: “The use of external bases to mount an actual insurgency has . . . become more pervasive in recent decades. Foreign sanctuaries permit an otherwise unviable insurgent movement to mature and gain strength. Without the burden of having to maintain territorial control, the insurgents can train, expand their numbers, and develop international political and material support links without hindrance.” “The Cuban attack on the unarmed civilian planes used by ‘Brothers to the Rescue,’ a refugee organization, is one more sad chapter in Castro’s 35-year antagonistic relationship with the United States. In the past, Brothers pilots have blatantly violated US and international law by crossing into Cuban airspace. But even if they did so again last weekend, as the Cuban government claims, shooting them down was inexcusable. However, blame must be shared by rabid expatriates determined to overthrow Castro’s communist government. [The US government] must rein in these forces – or at least make sure they don’t use the United States as the launching pad for their incursions”: “Retaliation by Force is not Answer in Cuba,” Chicago Sun–Times, Feb. 28, 1996, at 25. Convention Governing the Specific Aspects of Refugee Problems in Africa, 1001 UNTS 45 (UNTS 14691), done Sept. 10, 1969, entered into force June 20, 1974 (AU Refugee Convention), at Art. III; see Chapter 1.5.3 at notes 269–270. “To reinforce the prohibition of subversive activities in their own countries, several domestic legislations . . . have even incorporated this concept, as have the Congolese (DRC) and the Congolese Brazzaville. Subversive activities in these countries are banned on grounds of national security in order not to spoil relations between DRC and Congo Brazzaville and the country of origin of the refugee”: C. d’Orsi, “Specific Characteristics and Challenges of Refugee and AsylumSeeker Protection in Sub-Saharan Africa: Lessons Learnt in Search of a Better Future,” Thesis No. 978, Feb. 12, 2013, at 379–380.

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Civil and Political Covenant, Art. 19 1. Everyone shall have the right to hold opinions without interference. 2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals. Civil and Political Covenant, Art. 20 1. Any propaganda for war shall be prohibited by law. 2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law. Civil and Political Covenant, Art. 21 The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. Civil and Political Covenant, Art. 22 1. Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests. 2. No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others . . . Economic, Social and Cultural Covenant, Art. 8 1. The States Parties to the present Covenant undertake to ensure:

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(a) the right of everyone to form trade unions and join the trade union of his choice, subject only to the rules of the organization concerned, for the promotion and protection of his economic and social interests. No restrictions may be placed on the exercise of this right other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others; ... (d) the right to strike, provided that it is exercised in conformity with the laws of the particular country. ... The wording initially proposed by the Secretary-General for Art. 15 of the Refugee Convention provided that “[r]efugees . . . shall have the right to join non-profit-making associations, including trade unions.”808 This was a clear advance on the rather narrow approach taken in predecessor treaties, which had authorized refugees to establish only “associations for mutual relief and assistance.”809 So framed, the provision would have been subject to no contingency, and would have inhered in all refugees without qualification. The more inclusive formulation proposed was said to have been based upon a desire to bring the Refugee Convention into line with Art. 20(1) of the Universal Declaration of Human Rights, a broadly framed provision acknowledging that “[e]veryone has the right to freedom of peaceful assembly and association.”810 Yet it must be conceded that even the initial formulation of Art. 15 fell significantly short of the standard which the drafters cited as their inspiration. Not only did the first draft of Art. 15 fail to make any mention of the branch of Art. 20 of the Universal Declaration requiring freedom of peaceful assembly, but it made no attempt to codify the Declaration’s Art. 19, stipulating the arguably more basic right to freedom of opinion and expression.811 Even the content of the right to freedom of association proposed for the Refugee Convention was narrowly conceived: refugees would have been granted the right to join only “non-profit-making associations, including trade unions,” 808 809 810

811

Secretary-General, “Memorandum,” at 27. 1933 Refugee Convention, at Art. 11; 1938 Refugee Convention, at Art. 13. Universal Declaration, at Art. 20(1). “The ordinary law of the democratic countries includes freedom of association which, in principle, is enjoyed by foreigners as well as by nationals . . . [as set out in] Article 20 of the Universal Declaration of Human Rights . . . In these circumstances, there can be no objection to [refugees] joining non-profit-making associations”: Secretary-General, “Memorandum,” at 27–28. “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers”: Universal Declaration, at Art. 19.

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said to include “associations pursuing cultural, sports, social or philanthropic aims, as distinct from associations ‘for pecuniary gain,’ whose aim is the making of profits.”812 Yet the cognate provisions in general human rights law are generally understood to include the right to belong to all forms of association.813 The lack of consonance between Art. 15 and the principles of the Universal Declaration intensified over the course of the drafting process.814 Most critically, the decision was taken not to guarantee the right of refugees to belong to political associations. And even though the Universal Declaration’s commitment extends to “everyone,” the Refugee Convention’s right to freedom of association applies only to refugees who are lawfully staying in a state party, and even then must be honored only to the same extent that such rights are granted to most-favored foreigners. The reluctance of the drafters to establish a comprehensive right of refugees to freedom of association appears to have been driven by concern about the risk of political destabilization, both in receiving states and internationally. As the Belgian delegate remarked, refugees were seen to present a political risk which distinguished them from other non-citizens: [T]he position of some Governments vis à vis foreigners generally was essentially different from their attitude towards refugees. It was not too difficult to ask a foreign national to leave the country, but it was often virtually impossible to expel a refugee. Different measures had to be taken for the two groups. Moreover, it had been the experience of some States that foreign nationals rarely engaged in political activity, while refugees frequently did so.815

Indeed, the constrained approach taken to the associational rights of refugees was explicitly defended by the French government on the grounds that “[w]hile it was embarrassing to favour the withdrawal of rights from a group of people, 812

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Secretary-General, “Memorandum,” at 28. Oddly, the Secretary-General’s draft assumed that “[p]rofit-making associations are covered by the provisions dealing with the exercise of the professions”: ibid. Yet this approach seems to leave out the right to join a nonprofessional profit-making association, e.g. a business council or non-unionized workers’ collective. Specifically, Art. 22 of the Civil and Political Covenant, which is the legally binding codification of Art. 20 of the Universal Declaration, has a “protective scope [which] is broad. Religious societies, political parties, commercial undertakings and trade unions are as protected by Art. 22 as cultural or human rights organizations, soccer clubs or associations of stamp collectors”: Schabas, Nowak’s CCPR Commentary, at 615. “The most intense discussion of the drafting process of Art. 15 concerned the question to what extent refugees should be allowed to engage in political activities”: M. Teichmann, “Article 15,” in A. Zimmermann ed., The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary 909 (2011) (Teichmann, “Article 15”), at 914. Statement of Mr. Cuvelier of Belgium, UN Doc. E/AC.32/SR.23, Feb. 3, 1950, at 10–11.

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it would be better to do that than to expose that group of people – refugees – to the more drastic alternative of deportation (on grounds of national security or public order).”816 The denial of a complete right to freedom of association was therefore said to be “a warning to refugees in their own interest.”817 The international political concerns of states derived in part from a fear that refugees might prove to be infiltrators determined “to serve the interests of some other country.”818 Thus, Denmark, Egypt, and France expressly invoked national security concerns to justify the denial of freedom of political association to refugees.819 More generally, Austria expressed its worry that “recognition of the right of refugees to form associations could readily cause strained or aggravated relations between the countries of residence and those of origin.”820 While amendments based on such concerns did not garner majority support in the Ad Hoc Committee,821 the Conference of Plenipotentiaries formally amended Art. 15 to exclude political associations from its ambit.822 The rationale for doing so was the determination of Switzerland to ensure that refugees did not jeopardize its position of international political neutrality: In principle, aliens in Switzerland enjoyed freedom of association as one of the basic rights guaranteed by the Swiss Federal Constitution. [But] past experience had shown that the policy of neutrality pursued by Switzerland 816 817 818 819

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Statement of Mr. Devinat of France, ibid. at 9. Statement of Mr. Cuvelier of Belgium, ibid. at 11. Statement of Mr. Rain of France, UN Doc. E/AC.32/SR.10, Jan. 24, 1950, at 10. “[T]he French amendment should not be regarded as a discriminatory measure against refugees, but rather as a security measure”: Statement of Mr. Devinat of France, UN Doc. E/AC.32/SR.23, Feb. 3, 1950, at 9. See also Statement of Mr. Larsen of Denmark, UN Doc. E/AC.32/SR.10, Jan. 24, 1950, at 10: “[R]efugees who had found freedom and security in another country should not be permitted to engage in political activity which might endanger that country”; and Statement of Mr. Mostafa of Egypt, UN Doc. A/CONF.2/ SR.8, July 5, 1951, at 10: “Refugees admitted to a country should not be in a position to engage in political activities prejudicial to the security of that country.” United Nations, “Compilation of Comments,” at 41. The Austrian government concluded that “[i]t would be preferable, therefore, to leave as a matter of principle to the administrative authorities in the country of refuge the decision as to the right of refugees to form associations”: ibid. “The Chairman feared that the Committee was reopening questions discussed at the first session, when a proposal of the French delegation to allow, in providing for freedom of association, for the possibility of forbidding political activities had found small favour as it had been felt that article 2 covered the point sufficiently. Many delegates, moreover, remembering that the Universal Declaration of Human Rights imposed no conditions on the right of association, had thought that in some countries, especially those proud of their democratic institutions, the Committee might be suspected of a desire to limit actions which were certainly legal”: Statement of the Chairman, Mr. Larsen of Denmark, UN Doc. E/AC.32/SR.37, Aug. 16, 1950, at 9. The amendment to insert the words “non-political” into the definition of protected associational activities was adopted on a 10–0 (9 abstentions) vote: UN Doc. A/ CONF.2/SR.8, July 5, 1951, at 11.

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in implementation of her international obligations made it necessary to impose certain limits on the political activity of aliens resident in the country . . . They also applied to political groups of aliens. It had proved necessary to establish a slightly stricter regulation in respect of refugees. In principle, the regulations . . . debarred refugees from engaging in any political activity of any kind while in Switzerland: hence refugees had no right to participate in the activity of political groups or to form such groups themselves. That was just one of the conditions attached to the granting of asylum, and its justification could not be disputed.823

Consistent with this position, in 2017 Switzerland arrested Tibetan refugee activists who violated the two-hour no-protest zone during the visit of China’s President Xi Jinping.824 More generally, the duty of state parties under Art. III of the African Union’s regional refugee convention to prohibit refugees from engaging in “any activity likely to cause tension between Member States” shows the continuing salience of this preoccupation. Even though interstate concerns were cited as the rationale for the successful effort to exclude political associations from the scope of Art. 15, the broadly framed amendment appealed also to governments anxious to deny refugees the right to participate in domestic political associations of absolutely no international significance. From the beginning, concern was expressed that the Secretary-General’s draft of Art. 15 “might even imply that refugees were to enjoy the unqualified right to [engage in] political activities,”825 in which case “it might be conveniently invoked by [refugees] in order to sanction undesirable political activity.”826 In much the same way that Switzerland viewed abstention from internationally significant political activity as “just one of the conditions attached to the granting of asylum,”827 so too other countries felt entitled to withhold purely domestic political rights from refugees as the quid pro quo for the granting of protection. France, in particular, argued that [a]lthough France had always taken a very liberal attitude towards the many refugees who had found shelter and protection within its borders, it felt that in return they were under an obligation to refrain from taking part in its internal politics until they had become naturalized citizens. In the meantime, they had neither the full duties nor the full rights of nationals.828

The Refugee Convention does not, therefore, prevent Zimbabwe829 or Lebanon830 from denying refugees the right to participate in domestic politics. 823 825 826 827 828 829

Statement of Mr. Schurch of Switzerland, ibid. at 8–9. 824 See text at note 798. Statement of Mr. Kural of Turkey, UN Doc. E/AC.32/SR.10, Jan. 24, 1950, at 9. Statement of Mr. Kural of Turkey, UN Doc. A/AC.32/SR.23, Feb. 3, 1950, at 11. Statement of Mr. Schurch of Switzerland, UN Doc. A/CONF.2/SR.8, July 5, 1951, at 9. Statement of Mr. Rain of France, UN Doc. E/AC.32/SR.10, Jan. 24, 1950, at 10. See text at note 781. 830 See text at note 779.

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While such a prohibition may not be implemented on a discriminatory basis (for example, applied only against those who fund opposition parties),831 or be enforced by way of either expulsion832 or refoulement,833 the Convention affords refugees no presumptive right to join or otherwise engage the domestic politics of their host state.834 This concern to exclude refugees from the internal politics of asylum states is evident also in the debates regarding the scope of permissible trade union activities. While there was no dissent from the view that refugees should be entitled to join existing national trade unions,835 there was disagreement about whether refugees should also be allowed to engage in the more politicized acts of assuming leadership roles within unions,836 or establishing unions of their own.837 In the end, the rather vague language of Art. 15 – in which refugees are 831

832

833 834

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Art. 26 of the Civil and Political Covenant prohibits discrimination on the grounds of, inter alia, political opinion: see Chapter 1.5.5. See Chapter 5.1. While states have the right to expel refugees on “public order” grounds, this notion does not include all concerns within the civil law understanding of ordre public: ibid. at note 198. Moreover, lawful expulsion under Art. 32 requires scrupulous attention to due process norms: ibid. at note 133 ff. See Chapters 4.1.2 and 4.1.4. One commentator has thus suggested that “political associations include those whose purpose or activities are more or less directly connected to the execution of governmental or parliamentary powers or generally aim at interfering with the political process”: Teichmann, “Article 15,” at 929. “It will be noted that the text expressly refers to trade unions, in order that there should be no doubt with respect to them”: Secretary-General, “Memorandum,” at 28. For example, even as it proposed restrictive amendments to Art. 15, the Belgian representative “wished to emphasize that his Government’s reservation referred precisely to non-profit-making associations other than trade unions. If only trade unions were in question, it was quite clear that the Belgian delegation would approve of the provision, but there were other associations involved whose activities might give rise to legitimate concern”: Statement of Mr. Herment of Belgium, UN Doc. E/AC.32/SR.37, Aug. 16, 1950, at 9. The French representative similarly observed that “he was glad to see that [Art. 15] contained the words ‘trade unions’”: Statement of Mr. Juvigny of France, UN Doc. E/AC.32/SR.36, Aug. 15, 1950, at 26. Reflecting this view, the Second Session of the Ad Hoc Committee adopted the portion of Art. 15 referring to trade union rights on a 7–0 (4 abstentions) vote, even as the article as a whole passed by a less powerful 7–4 (0 abstentions) margin: UN Doc. E/ AC.32/SR.37, Aug. 16, 1950, at 10. For example, “[i]n France, refugees could join trade unions, but they could not assume leadership or hold executive positions. He thought the problem could be solved by suitable drafting”: Statement of Mr. Rain of France, UN Doc. E/AC.32/SR.10, Jan. 24, 1950, at 9. The original language proposed by the Secretary-General referred only to the right “to join” trade unions: Secretary-General, “Memorandum,” at 27. Denmark proposed the amendment of Art. 15 to provide that refugees would have the right “to form and to join” trade unions: Statement of Mr. Larsen of Denmark, UN Doc. E/AC.32/SR.10, Jan. 24, 1950, at 10. As explained by the supportive Belgian representative, the amendment “would then conform to the Universal Declaration of Human Rights, which accorded both rights to everyone”: Statement of Mr. Cuvelier of Belgium, ibid. at 11. But the American Federation of Labor sought to justify a withholding of this right on the grounds that “in

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granted rights “[a]s regards . . . trade unions” – was adopted as a means of encouraging (but not requiring) states to grant broad associational rights to refugees.838 But if and when a refugee’s role in a union (or other association)

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practice, it might well work to [refugees’] disadvantage, as the existing trade unions in various countries might grow suspicious and possibly hostile . . . Trade unions in Canada and the United States might hesitate to allow refugees to join if they were also permitted to form their own trade unions”: Statement of Mr. Stolz of the American Federation of Labor, ibid. at 11. While the amendment expressly referring to a right “to form” as well as to join trade unions was thereupon defeated, the Chairman adopted an American interpretation “that the negative vote on the Danish amendment did not mean that refugees should be prohibited from forming either trade unions or other non-profit-making associations”: Statement of Mr. Henkin of the United States, ibid. at 12, affirmed by the Chairman, Mr. Chance of Canada, ibid. As remarked by the French representative, “[t]he very general formula used left open the question whether membership or organization of a trade union was meant, and left room for whatever interpretation might be put upon it by the various national legislations”: Statement of Mr. Juvigny of France, UN Doc. E/AC.32/SR.36, Aug. 15, 1950, at 26. The ambiguity inherent in the framing of Art. 15 was remarked upon by the Israeli representative, who observed that he “saw a notable disparity between article [15] and the comment of the Committee [on its content]. If that comment [suggesting that ‘although not expressly stated, this article recognizes the right of refugees to form as well as to join associations’: Ad Hoc Committee, ‘First Session Report,’ at Annex II] correctly set forth the intention of the article, the words ‘As regards non-profit-making associations’ should be replaced by the words ‘As regards their right to form or join non-profit-making associations’”: Statement of Mr. Robinson of Israel, UN Doc. E/AC.32/SR.36, Aug. 15, 1950, at 24. The Chairman replied that “the suggestion of the representative of Israel recalled one he himself had made during the first session. His suggestion had not been favourably received by the Committee, which had seen in it the suggestion of encouraging refugees to establish special trade unions instead of joining the regular trade unions of their countries of residence”: Statement of the Chairman, Mr. Larsen of Denmark, ibid. at 25. While the American representative maintained his position that “the article . . . covered both types of activity,” even he conceded the diversity of views on the issue and opposed any effort to amend its wording expressly to refer to a right “to form” (as well as to join) trade unions: Statement of Mr. Henkin of the United States, ibid. at 25. Yet the issue arose again at the Conference of Plenipotentiaries, where the British representative observed that it was not “clear whether the article related to joining associations alone, or to forming them also”: Statement of Mr. Hoare of the United Kingdom, UN Doc. A/ CONF.2/SR.8, July 5, 1951, at 10. The President – arguably inaccurately, in light of the French representative’s statements above – “recalled that the Ad Hoc Committee had changed the text of article [15] in order to make it consistent with Article 23(4) of the Universal Declaration of Human Rights [which protects both the rights to form and to join trade unions]. That was why the words ‘As regards’ had been used”: Statement of the President, Mr. Larsen of Denmark, ibid. There is thus a conflict between the actual decision taken by the Ad Hoc Committee – which was neither to protect nor to prohibit refugees from forming trade unions – and the report of that decision to the Conference of Plenipotentiaries, upon which representatives may well have based their vote in favor of the adoption of Art. 15. But see Teichmann, “Article 15,” at 927–928, interpreting the drafting history as showing that “there was sufficient consensus about the right of refugees to join and to form non-profit-making associations and trade unions,” based largely on deference to the views expressed by France at the First Session of the Ad Hoc Committee

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becomes more political than strictly associational, governments have the right under the Refugee Convention to circumscribe the scope of the refugee’s activities.839 Even with such flexibility, however, a government would not be entitled to expel a refugee for participation in an unlawful strike,840 since Arts. 32 and 33 must still of course be respected. The same determination to constrain the involvement of refugees in the internal politics of receiving states can be seen in the decision taken to impose a high level of attachment – lawful stay – before even the fairly constrained right to freedom of association is granted to refugees. While less exigent than the French representative’s view that refugees should be “under an obligation to refrain from taking part in its internal politics until they had become naturalized citizens,”841 the increasingly strict standard set – which evolved from no attachment in the original draft, to a requirement that a refugee be “lawfully in” a state’s territory as the result of the Ad Hoc Committee’s work, to the eventual decision of the Conference of Plenipotentiaries to require “lawful stay” before the granting of associational rights842 – is consistent with a determination to delay as much as possible the acquisition of the only essentially political right contained in the Refugee Convention.

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(which conflict with the position subsequently taken by France at the Second Session, noted above). “It was common knowledge that some countries did not allow refugees to engage in any sort of political activity . . . The non-profit-making associations to which article [15] referred might often be political in character”: Statement of Mr. Perez Perozo of Venezuela, UN Doc. E/AC.32/SR.37, Aug. 16, 1950, at 6. The reluctance of the drafters to sanction overt political activity by refugees is evident as well from the debate about whether the Refugee Convention should codify Art. 19 of the Universal Declaration, which guarantees freedom of opinion and expression. In (successfully) advocating that no such right be included, the French representative observed that “refugees, residing in a country which was not their own, might wish, under article 19, to engage in political activities which it would be difficult to allow. If article 19 were mentioned in the convention, many States would have to make reservations, which would greatly weaken the scope of the article not only in the convention, but also in the Declaration itself”: Statement of Mr. Rain of France, UN Doc. E/AC.32/SR.11, Jan. 25, 1950, at 9. See text at note 781. Statement of Mr. Rain of France, UN Doc. E/AC.32/SR.10, Jan. 24, 1950, at 10. The same approach had been proposed in the French government’s draft of the Refugee Convention, which would have limited associational rights to refugees “permanently settled” in a state’s territory: France, “Draft Convention,” at 4. Interestingly, neither of the shifts to require a higher level of attachment appears to have been formally debated in plenary session. The shift to require lawful presence first appeared in Ad Hoc Committee, “First Session Report,” at Annex I. While the comments of the Committee helpfully define the notion to “exclude a refugee who, while lawfully admitted, has over-stayed the period for which he was admitted or was authorized to stay or who has violated any other conditions attached to his admission or stay” (ibid. at Annex II), no indication of the precise reason for the shift is provided. Similarly, the Conference of Plenipotentiaries did not formally debate the increase in the level of attachment to require lawful stay.

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This distancing of the approach to freedom of association in the Refugee Convention from the more liberal standard set by the Universal Declaration of Human Rights was clearly troubling to some delegates. As proposals were tabled to exclude political associations from the scope of Art. 15, the representative of the United States protested that constraints on freedom of association “did not seem to be in keeping with the principles of the United Nations”:843 It might, in fact, be interpreted as forbidding refugees even to express political opinions, and would certainly deny them access to an area of human activity in which they should have at least as much right to engage as any other aliens . . . Like all other residents of a country, they would be forbidden to engage in illegal political activity, and should not be singled out and denied the right to engage in legal activity.844

The American representative insisted that it was clearly “undesirable to include in a United Nations document a clause prohibiting political activities – a very broad and vague concept indeed.”845 He argued that the legitimate concerns of states could readily be met by reliance on the general duty of refugees to obey the laws of the host state,846 coupled with judicious resort to the right to expel refugees for reasons of public order.847 Yet only the Canadian representative voiced any support for these highly principled views.848 Nor can the decision to grant only a minimalist freedom of association to refugees be ascribed simply to a reluctance on the part of the drafters to be the first to codify in law the liberal standard set by the (non-binding) Universal Declaration. To the contrary, the representative of the International Labor Organization drew their attention to the fact that state parties to the Migration 843

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Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.10, Jan. 24, 1950, at 10. Ibid. Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.23, Feb. 3, 1950, at 8. “[N]othing in the draft convention prohibited a state from exercising its authority in respect of the political activity of its residents”: Statement of Mr. Henkin of the United States, ibid. at 10. Clearly, the American delegate did not feel that Arts. 19 and 20 of the Universal Declaration were a significant constraint on this authority, suggesting as he did that “[i]n the absence of any specific clause on the subject, [host states] would still have the right to restrict political activities of refugees as of any other foreigners”: ibid. at 8. The Chinese representative was even more adamant, insisting that “[n]othing in the draft convention could be construed as a derogation of the sovereign right of a State to restrict political activity”: Statement of Mr. Cha of China, ibid. at 10. “Perhaps the points raised by the French and Turkish representatives were already met in the clause recognizing the right to expel refugees for violations of public order. While ‘public order’ was likewise a vague term, and one not to be invoked indiscriminately, it would probably cover most of the cases envisaged by the French amendment”: Statement of Mr. Henkin of the United States, ibid. at 8. “The Chairman, speaking as the Canadian representative, said that he fully shared Mr. Henkin’s views”: Statement of the Chairman, Mr. Chance of Canada, UN Doc. E/ AC.32/SR.10, Jan. 24, 1950, at 10.

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for Employment Convention had already committed themselves to grant migrant workers the same trade union rights as enjoyed by national workers.849 This led the American representative to suggest that “if an international organization affiliated with the United Nations had decided to give special treatment to migrant workers, the Committee should . . . consider whether refugees might be in even greater need.”850 Only the Italian delegate responded, noting simply that his government “felt that refugees should not receive preferential treatment, but [only] the same treatment normally accorded to aliens in general.”851 In fact, the sole liberalizing concession which the American representative was able to wrest from his colleagues was rejection of the “aliens generally” contingent standard852 in favor of a duty to assimilate refugees’ right to freedom of association to that granted to the nationals of most-favored states853 – this having been the contingent standard which had governed associational rights under both the 1933 and 1938 refugee conventions.854 While Belgium855 and Venezuela856 joined Italy857 in pressing for a less generous contingent standard, the American representative prevailed upon those unwilling to extend to refugees the benefits afforded the citizens of special partner states simply to enter a reservation to the article on freedom of association.858 As a general matter, he persuaded his colleagues that the “most849

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Statement of Mr. Oblath of the International Labor Organization, UN Doc. E/AC.32/ SR.36, Aug. 15, 1950, at 23–24. Statement of Mr. Henkin of the United States, ibid. at 27. Statement of Mr. Theodoli of Italy, ibid. at 27. This standard had been provisionally adopted at the first session of the Ad Hoc Committee, on the motion of the Chairman, in an effort to meet the concerns expressed, in particular, by France and Turkey: Statement of the Chairman, Mr. Chance of Canada, UN Doc. E/AC.32/SR.10, Jan. 24, 1950, at 9; unanimously adopted, ibid. at 12. A working group formed to revise the draft for approval by the Committee opted nonetheless to reinsert the “most-favored-national” standard: “Decisions of the Working Group Taken on 9 February 1950,” UN Doc. E/AC.32/L.32, Feb. 9, 1950, at 5. The American representative “emphasized that when the Convention gave refugees the same privileges as aliens in general, it was not giving them very much”: Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.37, Aug. 16, 1950, at 7. This precedent was noted in Ad Hoc Committee, “First Session Report,” at Annex II, n. 9. “[H]is Government would like the words ‘nationals of foreign countries’ to be replaced by the words ‘aliens in general’”: Statement of Mr. Herment of Belgium, UN Doc. E/AC.32/ SR.36, Aug. 15, 1950, at 23. “There was no need in any case to provide for most-favoured-nation treatment under article [15] since the privileges granted under that article would only very rarely be made subject to reciprocity, even more rarely to treaty reciprocity”: Statement of Mr. Perez Perozo, UN Doc. E/AC.32/SR.37, Aug. 16, 1950, at 6. Statement of Mr. Theodoli of Italy, UN Doc. E/AC.32/SR.36, Aug. 15, 1950, at 27. “[T]he reservation mentioned by the Belgian representative was exactly the kind that the Committee had recognized that some countries might find it necessary to make, especially with regard to other countries with which they had entered into specially close

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favored-national” standard was a fair compromise between the competing views of states: He questioned whether, with regard to the right of association, most governments were really not prepared to grant better treatment to refugees than to aliens in general . . . The Committee would recall that at the previous meeting, the representative of the International Labor Organization had proposed that refugees be granted even better treatment in connection with trade union membership than was laid down in article 10, that they should receive in fact the same treatment as was guaranteed to nationals, as was provided under the Migration for Employment Convention. The representatives of Venezuela and Belgium were proposing to amend the article in the opposite direction. It might be possible to arrive at a compromise, but he hoped that more consideration would first be given to the proposal of the International Labor Organization.859

France rejected the American representative’s suggestion to align the Refugee Convention with the ILO’s national treatment standard, accurately asserting that the right to freedom of association in general was a significantly broader right than the ILO’s guarantee of only trade union rights.860 The most-favorednational standard was retained by the slimmest of margins upon final consideration by the Ad Hoc Committee,861 and not reconsidered at the Conference of Plenipotentiaries. The Refugee Convention is therefore infringed, for example, if refugees are not granted the same dispensation from citizenship quotas on trade union membership that is afforded the nationals of any partner or other favored state. Overall, the best that can be said for Art. 15 is that it is an important affirmation of the right of refugees – at least once they are lawfully staying, and to the same extent as most-favored foreigners – to undertake quite a broad range of associational activities, including not only the right to join trade unions, but also to participate in the activities of a diverse array of associations, including those with cultural, sporting, social, or philanthropic aims. For example, in view of the drafters’ clear aim to improve upon the associational

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relationship. Benelux had in fact been cited as an example”: Statement of Mr. Henkin of the United States, ibid. Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.37, Aug. 16, 1950, at 7. “The right to form a trade union and the right of association were two very different things. Trade union rights were derived from a more general right, that of association, but the purposes of a trade union and those of an association were different . . . The orbit of associations and that of trade unions did not therefore exactly coincide and in national legislation they were often governed by different laws. He did not consider it superfluous to make special mention of the right of association. Article [15] had its place in the Convention”: Statement of Mr. Juvigny of France, ibid. at 8. A Belgian proposal to revert to the “aliens generally” standard was rejected on a 6–5 (0 abstentions) vote: UN Doc. E/AC.32/SR.41, Aug. 23, 1950, at 11.

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rights granted in the conventions of 1933 and 1938 – which already allowed refugees to establish “associations for mutual relief and assistance” – there can be no doubt that the right to belong to self-help associations of the kind established by Tibetan refugees in India,862 Angolan refugees in Zambia,863 and Mozambican refugees in Swaziland864 is protected by Art. 15. And while the disinclination of the drafters to sanction the participation of refugees in political associations means that the Refugee Convention falls short of the goals set by the Universal Declaration,865 the drafters did not seek to limit purely individuated forms of political expression866 (though neither did they opt expressly to protect such rights).867 Because of the critical deficiencies of Art. 15 of the Refugee Convention, the right of refugees to freedom of association – and to its closely related rights to freedom of opinion, expression, and assembly868 – is more effectively vindicated by reliance upon the subsequently codified Arts. 19–22 of the Civil and Political Covenant. Critically, and in contrast to the rather grudging approach 862 865

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See text at note 771. 863 Ibid. 864 Ibid. Robinson correctly observes that the right to participate in the work of political associations is “not covered by Art. 15 but would come under Art. 7(1) [pursuant to which refugees must receive treatment not less favorable than that granted to aliens generally]”: Robinson, History, at 108–109. The Venezuelan representative affirmed that Art. 15 “did not apply to political activity which might be carried on outside of associations”: Statement of Mr. Perez Perozo of Venezuela, UN Doc. E/AC.32/SR.23, Feb. 3, 1950, at 11. In debates regarding codification in the Refugee Convention of Arts. 18 and 19 of the Universal Declaration of Human Rights [dealing with freedom of thought, opinion, and expression], the Belgian representative argued that “[i]n his opinion, provisions relating to freedom of opinion would be most appropriate in a convention on refugees, as the latter, as a rule, had abandoned their country of origin because they no longer enjoyed that freedom there”: Statement of Mr. Cuvelier of Belgium, UN Doc. E/AC.32/SR.11, Jan. 25, 1950, at 8. But the French representative countered that “[f]reedom of opinion and expression was no doubt a right which should be granted to all, but the exercise of that right might sometimes lead to serious difficulties. For instance, refugees residing in a country which was not their own might wish, under article 19, to engage in political activities which it would be difficult to allow”: Statement of Mr. Rain of France, ibid. at 9. Some comfort may nonetheless be taken from the view of the British representative, who opined that “a convention relating to refugees could not include an outline of all the articles of the Universal Declaration of Human Rights; furthermore, by its universal character, the Declaration applied to all human groups without exception and it was pointless to specify that its provisions applied also to refugees”: Statement of Sir Leslie Brass of the United Kingdom, ibid. at 8. The Brazilian representative and the Canadian Chairman expressly concurred in the views of the British delegate: Statements of Mr. Guerreiro of Brazil and the Chairman, Mr. Chance of Canada, ibid. at 8–9. “Freedom of expression is one of several mutually supporting rights (including the freedom of thought, the freedom of association and of assembly, and the right to vote) which, taken together, implicitly recognize the importance to both democratic society and individuals personally of the ability to form and express opinions, even where those views are controversial”: Jayawickrama, Judicial Application, at 741–742.

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taken by the Refugee Convention, the UN Human Rights Committee has expressly affirmed that non-citizens have “the right to hold opinions and to express them. Aliens receive the benefit of the right of peaceful assembly and of freedom of association . . . There shall be no discrimination between aliens and citizens in the application of these rights.”869 The practice in states such as Germany,870 Sweden,871 and the United Kingdom872 of allowing refugees to support or join political parties without regard to citizenship aligns neatly with this obligation. The foundational right is Art. 19(1) of the Covenant, which guarantees the “right to hold opinions without interference.”873 Because freedom to hold opinions is a purely private matter, it is an absolute right “to which the Covenant permits no exception or restriction.”874 As such, Art. 19(1) was found to have been breached by South Korea’s “ideology conversion system . . . designed to induce change to a prisoner’s political opinion by the provision of favourable benefits and treatment in prison.”875 Importantly, the drafters of Art. 19(1) rejected a proposal to frame the right as simply one to hold opinions “without governmental interference,”876 in favor of the more general right to freedom of opinion “without interference.” Art. 19(1) thus not only prohibits official efforts to force individuals to change their opinions, but also sets an affirmative duty of states to prevent private parties from coercing individuals to renounce their views877 – meaning, for example, that Nepal was under a duty to protect the right of refugees to voice their views favoring 869

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UN Human Rights Committee, “General Comment No. 15: The Position of Aliens under the Covenant” (1986), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [7]. See text at note 768. 871 Ibid. 872 Ibid. “Freedom of opinion extends to the right to change an opinion whenever and for whatever reason a person freely chooses”: Jayawickrama, Judicial Application, at 751. UN Human Rights Committee, “General Comment No. 34: Freedom of Opinion and Expression,” UN Doc. CCPR/C/GC/34, Sept. 12, 2011, at [9]. As Schabas observes, “[t]he private freedom to have and form opinions thus overlaps with freedom of thought guaranteed by Art. 18”: Schabas, Nowak’s CCPR Commentary, at 545. Partsch suggests that “‘[t]hought’ may be nearer to religion or other beliefs, ‘opinion’ nearer to political convictions. ‘Thought’ may be used in connection with faith and creed, ‘opinion’ for conviction in secular and civil matters”: K. Partsch, “Freedom of Conscience and Expression, and Political Freedoms,” in L. Henkin ed., The International Bill of Rights 208 (1981) (Partsch, “Freedom of Conscience”), at 217. With regard to freedom of thought and conscience, see generally Chapter 4.7. Yong-Joo Kang v. Republic of Korea, HRC Comm. No. 878/1999, UN Doc. CCPR/C/78/D/ 878/1999 (2003), decided July 15, 2003, at [2.5], [7.2]. This wording was proposed by the British government in UN Doc. E/CN.4/365. The narrower approach “floundered in the Commission on Human Rights due to the support voiced by the majority of the delegates for protection against every form of interference. This explicit recognition of horizontal effects underlines the general obligation of States parties pursuant to Art. 2(1) to protect freedom of opinion against interference by third parties”: Schabas, Nowak’s CCPR Commentary, at 545.

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resettlement to the United States without fear of attack by other refugees who opposed that plan.878 Not only may individuals freely hold opinions, but they are simultaneously entitled under Art. 19(2) to “seek, receive and impart information and ideas of all kinds.” This article “requires the acceptance of the public airing of disagreements and the refusal to silence unpopular views,”879 and extends to “every form of subjective idea[] and opinion[] capable of transmission to others.”880 The efforts of Australia881 and Nauru882 to stymie the release of information about refugee detention conditions, including withdrawing accreditation from journalists who had interviewed refugees, are thus at odds with Art. 19(2).883 Unless the information or idea in question either breaches the duty of states to prohibit war propaganda and hate speech, or can be brought under one of the explicit limitations allowed by Art. 19(3),884 it must be protected. While freedom of expression may be regulated, any regulatory regime must be necessary to achieve an enumerated purpose and may not be unduly onerous.885 As such, even if motivated by concern to protect refugees against cross-border attacks, Uganda’s law denying refugees the right to “engage in any political activities within Uganda, whether at local or national level”886 is overly broad and thus in breach of its duties under Art. 19(2). The right to freedom of expression extends to “every communicable type of subjective idea and opinion,”887 and “embraces even expression that may be 878 879

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See text at note 788. Jayawickrama, Judicial Application, at 742, citing in this regard the decision of the Constitutional Court of South Africa in South African National Defence Union v. Minister of Defence, [2000] 2 LRC 152 (SA CC, May 26, 1999). Ballantyne and Davidson v. Canada and McIntyre v. Canada, HRC Comm. Nos. 359/1989 and 385/1989 (joined on Oct. 18, 1990), UN Docs. CCPR/C/40/D/359/1989 and CCPR/C/ 40/D/385/1989, decided Mar. 31, 1993. See text at note 789. 882 See text at notes 790–791. “The expression and dissemination of ideas and information are . . . indivisible concepts. In its social dimension, freedom of expression is a means for the interchange of ideas and information among human beings and for mass communication. It includes the right of each person to seek to communicate his own views to others as well as the right to receive opinions and news from others. For the average citizen, it is just as important to know the opinions of others or to have access to information generally as to have the right to impart his own opinions”: Jayawickrama, Judicial Application, at 742–743. The scope of permissible limitation is discussed at note 925 ff. Laptsevich v. Belarus, HRC Comm. No. 780/1997, UN Doc. CCPR/C/68/D/780/1997, decided Mar. 20, 2000. See text at note 802. Schabas, Nowak’s CCPR Commentary, at 548. Thus, for example, the Human Rights Committee criticized Syria for having “blocked access to some Internet sites used by human rights defenders or political activists (art. 19)”: UN Human Rights Committee, “Concluding Observations: Syrian Arab Republic,” UN Doc. CCPR/CO/84/SYR, July 28, 2005.

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regarded as deeply offensive.”888 The forms of protected expression include not only communications made orally, in writing, or in print, but also those transmitted by “any . . . media of [the individual’s] choice.”889 Of particular importance to refugees, the right to freedom of expression is textually guaranteed “regardless of frontiers,” in consequence of which the transmission of information and opinions across national borders cannot lawfully be prohibited.890 As such, the broad-ranging prohibition set by Art. III of the African Union’s regional Refugee Convention – under which state parties “undertake to prohibit refugees residing in their respective territories from attacking any State Member of the OAU, by any activity likely to cause tension between Member States, and in particular by use of arms, through the press, or by radio” – is not in conformity with duties under the Civil and Political Covenant.891 Because the communication of ideas by press or the radio, even across borders, is protected by Art. 19(2), the onus is instead on the state party seeking to prohibit such transmission of ideas to meet the standard for valid limitation of the right in a particular case.892 Beyond the rights to hold and to communicate opinions and information, the Civil and Political Covenant also guarantees more collective forms of expressive freedom. While Art. 21, unlike Art. 19, does not explicitly grant the right to freedom of assembly to “everyone,”893 the Human Rights Committee has nonetheless adopted the view that “[e]veryone has the right of peaceful assembly: citizens and non-citizens alike. It may be exercised by, for example, . . . migrants (documented or undocumented), asylum seekers and 888

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UN Human Rights Committee, “General Comment No. 34: Freedom of Opinion and Expression,” UN Doc. CCPR/C/GC/34, Sept. 12, 2011, at [11]. “The use of colourful, forceful and even disrespectful language may be necessary to capture the attention, interest and concerns of the public regarding the need to rectify the situation protested against or prevent its recurrence . . . The fact that expression may be offensive, rude or grating cannot serve as a reason not to protect it”: Jayawickrama, Judicial Application, at 755–756. Civil and Political Covenant, at Art. 19(2). “The rights of freedom of opinion and expression may be exercised not only in one’s own country but internationally. They are international rights”: Partsch, “Freedom of Conscience,” at 217. It is especially worrisome “that some [AU] States have adopted a rather sweeping approach to Article III, interpreting it as prohibiting any political activity with respect to the refugee’s country of origin, or indeed any political activity whatsoever”: R. Mandal, “Political Rights of Refugees,” UNHCR Legal and Protection Policy Research Series, UN Doc. PPLA/2003/04, Nov. 2003, at [7]. Yet the UNHCR regrettably failed even to mention (much less to critique) Art. III in UNHCR, “Key Legal Considerations on the Standards of Treatment of Refugees Recognized under the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa,” Dec. 19, 2017. See text at note 925 ff. It merely provides that “[t]he right of peaceful assembly shall be recognized”: Civil and Political Covenant, at Art. 21.

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refugees.”894 Refugees are therefore presumptively entitled, for example, to undertake campaigns and to hold rallies intended to raise awareness of conditions in their country of origin, even to the point of advocating the ouster of that country’s government.895 The requirement that an assembly be “peaceful” “refers exclusively to the conditions under which the assembly is held, i.e. ‘without uproar, disturbance, or the use of arms,’”896 and is not limited, for example, to pro-democratic assemblies.897 The protected interests include the right to prepare, conduct, and participate in an assembly,898 understood to be an “intentional, temporary gathering[] of several persons for a specific purpose,”899 and including “both private meetings and meetings in public thoroughfares . . . [and] not only static meetings, but also public processions, which are assemblies in motion.”900 It follows that the attacks by Libyan police 894

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UN Human Rights Committee, “General Comment No. 37: Article 21, Right of Peaceful Assembly,” UN Doc. CCPR/C/GC/37, July 23, 2020, at [5]. “So long as exiles act within the scope of these broadly accepted rights [freedom of thought, expression, assembly, and association], they can injure no legally protected interest of the state of origin”: Corliss, “Hostile Acts,” at 193. The duty of states to prevent acts of aggression is discussed at note 932. Partsch, “Freedom of Conscience,” at 231, citing the statement of the Uruguayan representative, Eduardo Jiménez de Aréchaga, UN Doc. A/C.3/SR.61. Thus, “[a] ‘peaceful’ assembly stands in contradistinction to one characterized by widespread and serious violence. The terms ‘peaceful’ and ‘non-violent’ are thus used interchangeably in this context”: UN Human Rights Committee, “General Comment No. 37: Article 21, Right of Peaceful Assembly,” UN Doc. CCPR/C/GC/37, July 23, 2020, at [15]. “[A] clear majority in the Commission on Human Rights rejected the attempt of the Socialist States to reserve the freedom for ‘the interests of democracy’ and to prohibit it for ‘anti-democratic’ purposes . . . [B]ecause experiences in all corners of the world demonstrate that democracy is such a vague concept, its interests are too easily equated with those of the political power holders, which would mean that assemblies might only have been permissible when they supported the system”: Schabas, Nowak’s CCPR Commentary, at 593. Ibid. at 483. Ibid. at 484. The broad scope of the right to assembly extends to “organising or taking part in a gathering of persons for a purpose such as expressing oneself, conveying a position on a particular issue or exchanging ideas. The gathering can also be intended to assert or affirm group solidarity or identity. Assemblies may, in addition to having such aims, serve other goals, such as an entertainment, cultural, religious or commercial objective, and still be protected by article 21”: UN Human Rights Committee, “General Comment No. 37: Article 21, Right of Peaceful Assembly,” UN Doc. CCPR/C/GC/37, July 23, 2020, at [12]. Jayawickrama, Judicial Application, at 838–839. The prevention of individuals from holding a demonstration, including walking in a group holding photographs and posters, was found to breach Art. 21: Evrezov v. Belarus, HRC Comm. No. 1999/2010, UN Doc. CCPR/C/114/D/1988/2010, decided Oct. 10, 2014. See generally UN Human Rights Committee, “General Comment No. 37: Article 21, Right of Peaceful Assembly,” UN Doc. CCPR/C/GC/37, July 23, 2020, at [6], [10]. The Committee has also made clear that “associated activities [that] happen online or otherwise rely upon digital services . . . are also protected under article 21. States parties must not, for example, block or hinder Internet connectivity in relation to peaceful assemblies”: ibid. at [34].

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on refugees protesting conditions of detention,901 Egypt’s use of excessive force to evict refugees demanding access to housing,902 and Yemen’s decision to arrest Somali refugees engaged in a peaceful sit-in across from the office of the UNHCR903 were all violations of the right to peaceful assembly.904 Indeed, because states are obliged not only to allow peaceful assemblies, but also to “put in place effective measures to protect against attacks aimed at silencing those exercising their right to freedom of expression by means of an assembly,”905 Greece’s failure to protect Afghan refugees demonstrating against conditions at the notorious Moria camp from attack by a far-right mob906 was similarly in breach of its duties under Art. 21. Finally, Art. 22 of the Civil and Political Covenant addresses freedom of association. In contrast to the cognate right in Art. 15 of the Refugee Convention, this right explicitly inheres in “everyone” without qualification, and extends to all forms of association.907 States must of course refrain from direct interference with associational freedom908 – a duty breached by Uganda when it forcibly relocated the refugees who had formed an association to advocate for an improved camp economy in the Kyangwali Refugee Settlement.909 But equally important, states must both implement a framework 901 904

905

906 907

908

909

See text at note 782. 902 See text at note 783. 903 See text at note 784. “[T]here can be no legitimate restriction under article 19, paragraph 3, which would justify the arbitrary arrest, torture, and threats to life of the author and thus, the question of deciding which measures might meet the ‘necessity’ test in such situations does not arise”: Philip Afuson Njaru v. Cameroon, HRC Comm. No. 1353/2005, UN Doc. CCPR/C/89/D/ 1353/2005, decided Mar. 19, 2007, at [6.4]. Nikolai Alekseev v. Russian Federation, HRC Comm. No. 1873/2009, UN Doc. CCPR/C/ 109/D/1873/2009, decided Dec. 2, 2013, at [9.3]. See generally UN Human Rights Committee, “General Comment No. 37: Article 21, Right of Peaceful Assembly,” UN Doc. CCPR/C/GC/37, July 23, 2020, at [8], [24]. See text at note 785. “Religious societies, political parties, commercial undertakings and trade unions are as protected by Art. 22 as cultural or human rights organizations, soccer clubs or associations of stamp collectors. Moreover, the legal form of an association is basically unrestricted. In addition to such juridical persons as clubs, parties or societies under commercial or civil law, mere de facto associations are likewise protected”: Schabas, Nowak’s CCPR Commentary, at 615. Art. 22 was, for example, found to have been violated by Uruguay in the context of official efforts to intimidate and persecute a trade union activist: Burgos v. Uruguay, HRC Comm. No. 52/1979, UN Doc. CCPR/C/13/D/52/1979, decided July 29, 1981. More generally, the right to form an association presumptively guarantees the right of such an association freely to carry out its activities: Belyatsky v. Belarus, HRC Comm. No. 1296/2004, UN Doc. CCPR/C/90/D/1296/2004, decided July 24, 2007. See text at note 775. “The harassment, intimidation or stigmatization of a person, including arrest, detention, trial or imprisonment for reasons of the opinions they may hold, constitutes a violation of article 19, paragraph 1. Any form of effort to coerce the holding or not holding of any opinion is prohibited”: UN Human Rights Committee, “General Comment No. 34: Freedom of Opinion and Expression,” UN Doc. CCPR/C/GC/34, Sept. 12, 2011, at [9]–[10].

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for the legal establishment of associations910 and take steps to prevent private parties from interfering with associational activities.911 Freedom of association may also take a negative form, meaning that “no one may be forced, either directly or indirectly, by the State or by private parties, to join a political party, a religious society, a commercial undertaking or a sports club.”912 Nor may freedom of association be constrained on the grounds that an association already exists to pursue a given interest or activity. Individuals have the right to choose between belonging to an existing association and forming one of their own design: When a country has only one organization for promoting human rights but an individual is not in agreement with its methods and objectives, his or her freedom of association is not exhausted simply because he or she is not forced to join this organization. On the contrary, Art. 22(1) also guarantees the right to found a second human rights organization with other, like-minded persons. In other words, when a State party creates an association (with or without compulsory membership) in a certain economic, political, or cultural field, it has in no way fulfilled its duties under Art. 22(1). Subject to the limitations set down in para. 2, it must make it legally and factually possible for all persons to choose between existing (State and private) organizations and, should none of these appeal to them, to found a new one.913

As such, Bhutanese refugees in Nepal914 and Eritrean refugees in Sudan915 were entitled to form their own associations to advocate for their particular educational, health, and other interests. On the other hand, because only 910

911

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“That individuals should be able to form a legal entity in order to act collectively in a field of mutual interest is one of the most important aspects of the right to freedom of association”: Jayawickrama, Judicial Application, at 854. See also Schabas, Nowak’s CCPR Commentary, at 615–616: “Because groups of persons usually seek to pursue their longer-term interests in a legally recognized form (usually as juridical persons), States parties are also under a positive duty to provide the legal framework for the incorporation of juridical persons.” “The obligation also requires State parties to ensure that persons are protected from any acts by private persons or entities that would impair the enjoyment of the freedoms of opinion and expression to the extent that these Covenant rights are amenable to application between private persons or entities”: UN Human Rights Committee, “General Comment No. 34: Freedom of Opinion and Expression,” UN Doc. CCPR/C/GC/34, Sept. 12, 2011, at [7]. Schabas, Nowak’s CCPR Commentary, at 617. “Although motions by France and Uruguay in the [Commission] and by Somalia in the Third Committee of the General Assembly to set down an express prohibition on compulsory membership modelled on Art. 20(2) of the Universal Declaration of Human Rights were defeated in both organs, the discussions surrounding them make clear that negative freedom of association was protected as well. The reasons why this prohibition was not adopted have solely to do with considerations for the interests of trade unions”: ibid. Ibid. at 618. 914 See text at note 772. 915 See text at note 774.

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citizens of a state have the right to take part in the conduct of public affairs, to vote, and to hold elected office,916 the Irish decision to deny refugee associations the right to participate in the review of its controversial direct provision centers917 was not in breach of Art. 22. For the same reason, Honduras was under no duty to allow Salvadoran refugees to govern their own camps.918 While refugee self-governance often makes good practical and economic sense,919 it cannot be insisted upon as a matter of international human rights law.920 As under the Refugee Convention, the Civil and Political Covenant’s provision on freedom of association specifically protects trade union rights. But in contrast to the Refugee Convention’s vague formulation – intended to leave open the question of whether refugees are entitled not only to join unions, but also to lead and even to form them921 – Art. 22 of the Covenant expressly guarantees “the right to form and join trade unions,” and further stipulates that “[n]o restrictions” are to be placed on the exercise of this right.922 This general duty thus denies states the right to limit the number of refugees or non-citizens in a union.923 Some doubt has, however, been cast on whether the right to strike is guaranteed under Art. 22 as the result of a controversial decision of the UN Human Rights Committee.924 While the right to strike is nonetheless 916 918 919

920

921 922 923 924

Civil and Political Covenant, at Art. 25. 917 See text at note 776. See text at note 773. See K. Pincock, A. Betts, and E. Easton-Calabria, The Global Governed? Refugees as Providers of Protection and Assistance (2019). “Not protected by Art. 15 of the 1951 Convention is the right to self-governance of refugee camps”: Teichmann, “Article 15,” at 928. See text at notes 836–837. The scope of permissible limitations generally is discussed at note 926 ff. See text at note 777. JB et al. v. Canada, HRC Comm. No. 118/1982, UN Doc. CCPR/C/28/D/118/1982, decided July 18, 1986. This decision is, however, best understood as reflecting the formal nature of Art. 22 of the Civil and Political Covenant rather than as suggesting that the right to strike is not inherent in that provision. “The drafting history clearly shows that the right of association was dealt with separately from the right to form and join trade unions. When in 1957 the right to strike was accepted as an amendment to [Art. 8 of the Economic Covenant], such an amendment was neither introduced nor discussed with respect to [Art. 22 of the Civil and Political Covenant]. The reason is both clear and correct, namely because [Art. 22] deals with the right of association as a whole, concerning clubs and societies as well as trade unions, and mentioning particular activities such as strike action would have been inappropriate. A manner of exercising a right which has, under certain leading and widely ratified international instruments, been declared in principle lawful cannot be incompatible with the [Civil and Political Covenant]”: Jayawickrama, Judicial Application, at 872. It has also been noted that “[i]n more recent Concluding Observations, the [Human Rights Committee] has expressed concern about restrictions on the right to strike [citing Concluding Observations on Chile, Lithuania, and Estonia]. This may herald a change of heart regarding the scope of article 22 protection for trade union members”: S. Joseph and M. Castan, The International Covenant on Civil and

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expressly guaranteed by Art. 8(1)(d) of the Economic Covenant, that provision – unlike Art. 22 of the Civil and Political Covenant – admits of the possibility that, as an economic right, less developed countries may decide not to recognize this right in the case of non-citizens.925 Despite the fact that the expressive freedom provisions of the Covenant on Civil and Political Rights are generally broadly framed and guaranteed to noncitizens, including refugees, each of the interests protected by Arts. 19, 21, and 22 may be subject to restrictions. Most fundamentally, only freedom of opinion is immune from emergency derogation by state parties.926 But more generally, these articles authorize governments to limit expressive rights so long as that limitation is established by law, and can be objectively assessed as necessary to protect an enumerated interest.927 The first requirement for restriction of an expressive freedom – that the limitation be provided or prescribed by law (in the case of the rights to freedom of expression, and of association) – is “designed to assure the rule of law, the principle of legality, a knowledge of the existence of the law and accessibility to it by those affected, and sufficient definiteness as to its content and meaning.”928 In Schabas’ view, this standard requires that the restriction be “set down in a statute or an equivalent unwritten norm of common law with sufficient definitiveness.”929 Importantly, the Human Rights Committee has made clear that “it is not compatible with the Covenant for a restriction to be enshrined in traditional, religious or

925 926

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Political Rights: Cases, Materials, and Commentary (2013) (Joseph and Castan, ICCPR), at 661. See Chapter 1.5.4 at note 432 ff. Civil and Political Covenant, at Art. 4(2). While no part of Art. 19 is textually immune from derogation, it has been determined that “in those provisions of the Covenant that are not listed in article 4, paragraph 2, there are elements that in the Committee’s opinion cannot be made subject to lawful derogation under article 4. Freedom of opinion is one such element, since it can never become necessary to derogate from it during a state of emergency”: UN Human Rights Committee, “General Comment No. 34: Freedom of Opinion and Expression,” UN Doc. CCPR/C/GC/34, Sept. 12, 2011, at [5]. See generally Chapter 1.5.4 at notes 395–396. “The exceptions must be narrowly interpreted, and the necessity for any restrictions must be convincingly established . . . When a state invokes a legitimate ground for restricting the freedom of expression, it must demonstrate in specific and individualized fashion the precise nature of the threat and the necessity and proportionality of the specific action taken, in particular by establishing a direct and immediate connection between the expression and the threat”: Jayawickrama, Judicial Application, at 796, 798. Partsch, “Freedom of Conscience,” at 220. Drawing on case law of the European Court of Human Rights, Partsch opines that this requirement may be satisfied either by statute or by unwritten common law: ibid. Moreover “[a] law may not confer unfettered discretion for the restriction of freedom of expression on those charged with its execution”: UN Human Rights Committee, “General Comment No. 34: Freedom of Opinion and Expression,” UN Doc. CCPR/C/GC/34, Sept. 12, 2011, at [25]. Schabas, Nowak’s CCPR Commentary, at 624.

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other such customary law.”930 The standard of lawfulness for limits on the right to freedom of assembly is, however, less exacting than that for limits on freedom of expression and association.931 Because a constraint on freedom of assembly need only be “imposed in conformity with the law,” it is sufficient if it is ordered by administrative officials acting on the basis of some general statutory or common law authority.932 The second requirement is that the constraint be imposed in order to advance one of several enumerated interests. A restriction is only valid if its purpose is to protect the rights and freedoms of others; to ensure respect for national security, public order, public health, or morals; or, in the case of the rights to assembly and association, to ensure public safety. In addition, by virtue of the duty of state parties under Art. 20 to prohibit propaganda of war933 and the advocacy of 930

931

932

933

UN Human Rights Committee, “General Comment No. 34: Freedom of Opinion and Expression,” UN Doc. CCPR/C/GC/34, Sept. 12, 2011, at [24]. The more flexible definition of lawfulness applies, however, only if the gathering is appropriately defined as an “assembly.” The more rigorous standard (“provided by law”) which governs Art. 19(2) is applicable to public expressions of opinion which fall short of the organized nature of an “assembly.” For example, the Human Rights Committee did not agree that the presence of some twenty-five members of the Social Democratic Youth Organization amidst a larger crowd of persons permitted by the state to gather near the Presidential Palace constituted a “demonstration” which could be constrained under the less exacting standards of Art. 21: Kivenmaa v. Finland, HRC Comm. No. 412/1990, UN Doc. CCPR/C/50/D/412/1990, decided Mar. 31, 1994. “Elsewhere the restriction must be ‘provided’ or ‘prescribed’ by law; here it seems sufficient that restrictions are ‘imposed in conformity with law,’ doubtless in order to allow wider discretion to administrative authorities acting under general authorizations. Presumably, the police may act on the basis of a general clause authorizing them to act in the interests of public safety”: Partsch, “Freedom of Conscience,” at 232–233. Nonetheless, “[r]estrictions must . . . be imposed through law or administrative decisions based on law. The laws in question must be sufficiently precise to allow members of society to decide how to regulate their conduct and may not confer unfettered or sweeping discretion on those charged with their enforcement”: UN Human Rights Committee, “General Comment No. 37: Article 21, Right of Peaceful Assembly,” UN Doc. CCPR/C/GC/37, July 23, 2020, at [39]. This includes “propaganda threatening or resulting in an act of aggression or breach of peace contrary to the Charter of the United Nations”: UN Human Rights Committee, “General Comment No. 11: Prohibition of Propaganda for War and Advocacy of Hatred” (1983), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [2]. Nowak thus concludes that “Art. 20(1) does not affect the right of individual or collective self-defence guaranteed in Art. 51 of the UN Charter and other measures consistent with chapter VII or the right of all peoples to self-determination and independence. The drafters of Art. 20(1) intended to prohibit propaganda for so-called ‘wars of aggression’ but not for wars waged out of defence or for liberation . . . [I]nternal ‘civil wars’ were not meant to fall under its scope of application, so long as they do not develop into an international conflict . . . [W]hat is decisive is that the propaganda aims at creating or reinforcing the willingness to conduct a war of aggression”: Schabas, Nowak’s CCPR Commentary, at 579–580. More generally, “[w]here the support consists merely of publicly backing groups involved in an armed struggle, it is questionable whether the State is obliged to crack down on such an organisation. The situation would be different if the organisation was clearly advocating

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hatred,934 a constraint on an expressive freedom necessary to meet either of those obligations is presumptively lawful.935 One basis for restrictions on expressive freedoms936 is the need to protect the “rights and freedoms of others.” This authority may not, however, be interpreted in a way that breaches the duty of non-discrimination by privileging the views or concerns of the majority, or of those in power937 – thus disallowing Kenya’s imposition of limits on the activities of refugee populations based simply upon whether the refugees’ views corresponded with their host government’s prevailing foreign policy preferences.938 In keeping with the overall goal of the Covenant, the purpose of any limitation should instead be to promote a more rights-regarding society. Thus, for example, the Human Rights Committee invoked this limitation to uphold both a French law which prohibited speech denying that crimes against

934

935

936

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full-scale war between States, as then the host State would be obliged to prevent such views being aired”: R. Mandal, “Political Rights of Refugees,” UNHCR Legal and Protection Policy Research Series, UN Doc. PPLA/2003/04, Nov. 2003, at [51]. The object of this part of the duty is to prohibit “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence”: UN Human Rights Committee, “General Comment No. 11: Prohibition of Propaganda for War and Advocacy of Hatred” (1983), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [2]. For example, it has been held that the failure to stop the dissemination of anti-Semitic tape-recorded messages by telephone was contrary to Art. 20’s duty to prohibit hate speech: JRT and the Western Guard Party v. Canada, HRC Comm. No. 104/1981, UN Doc. Supp. No. 40 (A/38/40) at 231, decided Apr. 6, 1983. Contrary to the position taken here, the Human Rights Committee has opined that the exercise of Art. 20 authority is “subject to restriction pursuant to article 19 paragraph 3. As such, a limitation that is justified on the basis of article 20 must also comply with article 19, paragraph 3”: UN Human Rights Committee, “General Comment No. 34: Freedom of Opinion and Expression,” UN Doc. CCPR/C/GC/34, Sept. 12, 2011, at [50]. This is an odd position which treats Art. 20’s mandatory rule as though it merely lists purposes that could have been included in the list of discretionary restrictions in Art. 19(2): see e.g. D. Türk and L. Joinet, “Progress Report on ‘The Right to Freedom of Opinion and Expression,’” UN Doc. E/CN.4/Sub.2/1991/9, at 12; and D. McGoldrick, The Human Rights Committee (1994), at 491. The better view would seem to be that since Art. 20 is lex specialis it is in no sense governed by or subject to Art. 19(3). “Restrictions are not allowed on grounds not specified in paragraph 3, even if such grounds would justify restrictions to other rights protected in the Covenant”: UN Human Rights Committee, “General Comment No. 34: Freedom of Opinion and Expression,” UN Doc. CCPR/C/GC/34, Sept. 12, 2011, at [22]. A helpful analogy may be made to the right to restrict freedom of religion under Art. 18(3) of the Covenant. In this context, the Human Rights Committee has observed that “[i]n interpreting the scope of permissible limitation clauses, States parties should proceed from the need to protect the rights guaranteed under the Covenant, including the right to equality and non-discrimination on all grounds specified in articles 2, 3 and 26 . . . Restrictions may not be imposed for discriminatory purposes or applied in a discriminatory manner”: UN Human Rights Committee, “General Comment No. 22: Freedom of Thought, Conscience or Religion” (1993), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [8]. See text at note 799.

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humanity had occurred during the Holocaust as a restriction necessary to allow the Jewish community to live free from the fear of anti-Semitism;939 it also sanctioned the transfer by the Canadian province of New Brunswick of a teacher who had published anti-Semitic materials as necessary to ensure the right of all students “to have an education in the public school system free from bias, prejudice and intolerance.”940 The additional authority under Art. 19(3) to limit freedom of expression where necessary to protect the “reputation of others”941 more generally authorizes also the imposition of constraints on free speech where necessary to avoid “intentional infringement on honour and reputation by untrue assertions,”942 for example by the enforcement of laws on defamation. Expressive rights may also be constrained if required by considerations of national security. The contemporary meaning of this notion has already been developed in some detail.943 In essence, the limitation imposed on expressive freedom must be in response to an objectively reasonable, real possibility of directly or indirectly inflicted substantial harm to the host state’s most basic interests, including the risk of an armed attack on its territory or its citizens, or the destruction of its democratic institutions.944 Importantly, the Human Rights Committee has not been willing simply to accept the assurances of states that restrictions are required to prevent “subversive activities,”945 but has required specific information enabling it to evaluate both the reality of the risk and the soundness of a state’s claim that a restriction on national security grounds is a necessary response to that genuine risk.946 Third, limits may be set where necessary to ensure “public order (ordre public).” This is quite a broad-ranging notion, allowing restrictions beyond those authorized by the narrower concept of “public order” which is used, for example, to define the scope of permissible limitations on freedom of thought, conscience, and religion under Art. 18 of the Covenant.947 The bilingual 939

940

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942 944 945

946

947

Faurisson v. France, HRC Comm. No. 550/1993, UN Doc. CCPR/C/58/D/550/1993, decided Nov. 8, 1996. Malcolm Ross v. Canada, HRC Comm. No. 736/1997, UN Doc. CCPR/C/70/D/736/1997, decided Oct. 18, 2000. “The term ‘others’ relates to persons individually or as members of a community. Thus, it may, for instance, refer to individual members of a community defined by its religious faith or morals”: UN Human Rights Committee, “General Comment No. 34: Freedom of Opinion and Expression,” UN Doc. CCPR/C/GC/34, Sept. 12, 2011, at [28]. Schabas, Nowak’s CCPR Commentary, at 568. 943 See Chapter 3.5.1 at note 669 ff. Ibid. at note 680. Weinberger v. Uruguay, HRC Comm. No. 28/1978, UN Doc. CCPR/C/11/D/28/1978, decided Oct. 29, 1980; Burgos v. Uruguay, HRC Comm. No. 52/1979, UN Doc. CCPR/ C/13/D/52/1979, decided July 29, 1981. Jeong-Eun Lee v. Republic of Korea, HRC Comm. No. 1119/ 2002, UN Doc. CCPR/C/84/ D/1119/2002, decided July 20, 2005. See Chapter 4.7 at note 2376. Yet despite its relative breadth, “‘[p]ublic order’ and ‘law and order’ are not synonyms”: UN Human Rights Committee, “General Comment No. 37: Article 21, Right of Peaceful Assembly,” UN Doc. CCPR/C/GC/37, July 23, 2020, at [44].

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formulation employed in Arts. 19, 21, and 22 instead incorporates by reference the traditional civil law notion of “ordre public” – roughly equivalent to the common law construct of public policy.948 The drafters of the Covenant were not prepared even to replace the notion of “public order (ordre public)” with that of “prevention of disorder or crime.”949 As such, Jayawickrama explains that [i]n the interest of public order, the state may prohibit the causing of loud noises in the streets and public places by means of sound-amplifying instruments, regulate the hours and places of public discussion and the use of public streets for the purpose of exercising the freedom of speech, provide for the expulsion of hecklers from meetings and assemblies, and punish utterances tending to incite an immediate breach of the peace or riot, as distinguished from utterances causing mere public inconvenience, annoyance or unrest. For the maintenance of public order (ordre public) it may, for instance, be permissible in certain circumstances to regulate speech-making in a particular public place. The protection of parliamentary procedure could be seen as a legitimate goal of public order, and an accreditation system for journalists could be a justified means of achieving that goal.950

Importantly, though, the Human Rights Committee has insisted that “[i]t is not compatible with paragraph 3 . . . to suppress or withhold from the public information of legitimate public interest that does not harm national security or to prosecute journalists, researchers, environmental activists, human rights defenders, or others, for having disseminated such information”951 – meaning that the detention and expulsion of reporters investigating refugee detention in Nauru was not lawful.952 The host country may also in at least some circumstances lawfully assert public order (ordre public) considerations based on the need to respect the principles of non-intervention in the affairs of other countries,953 and more 948

949

950

951

952 953

In rejecting the civil law construct for purposes of the right of expulsion under the Refugee Convention (Art. 32), it was observed that “[i]n civil law countries, the concept of ‘l’ordre public’ is a fundamental legal notion used principally as a basis for negating or restricting private agreements, the exercise of police power, or the application of foreign law. The common law counterpart of ‘l’ordre public’ is not ‘public order,’ but rather ‘public policy’”: UN Doc. E/L.68, tabled at the Conference of Plenipotentiaries by its Executive Secretary, UN Doc. A/CONF.2/SR.14, July 10, 1951, at 19–20. This proposal was narrowly defeated on a 7–6 (2 abstentions) vote: UN Doc. E/CN.4/ SR.167. Jayawickrama, Judicial Application, at 823–824. See e.g. Coleman v. Australia, HRC Comm. No. 1157/2003, UN Doc. CCPR/C/87/D/1157/2003, decided Aug. 10, 2006. UN Human Rights Committee, “General Comment No. 34: Freedom of Opinion and Expression,” UN Doc. CCPR/C/GC/34, Sept. 12, 2011, at [30]. See text at note 791. The Declaration on Territorial Asylum, UNGA. Res. 2312(XXII), adopted Dec. 14, 1967, provides at Art. 4 that “[s]tates granting asylum . . . not permit persons who have received asylum to engage in activities contrary to the principles and purposes of the United Nations.” More generally, states have agreed “to ensure that [their] territory is not used

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generally to maintain friendly relations among states954 – for example, to constrain the associations of Rwandan refugees planning an invasion of their home country while enjoying refugee protection in Uganda,955 or of anticommunist Cuban refugees based in the United States who sent harassing aircraft into Cuban airspace.956 But because a context-sensitive evaluation is required to justify a limitation based on public order (ordre public), states may not lawfully constrain expressive freedoms on the basis of a generic and broadbrush provision957 like Art. III of the African Union’s Refugee Convention – under which there is a blanket duty on states “to prohibit refugees . . . from attacking any State Member of the OAU, by any activity likely to cause tension between Member States [emphasis added].” The fourth category of limitation – applicable to the rights of assembly and association – is the need to ensure “public safety.” The language derives from a British proposal intended to allow assemblies to be prohibited or broken up where there is a specific risk to persons or property.958 By way of example, Partsch suggests that “[i]n a country where different groups of political refugees exiled from their homeland are fighting with each other, it would seem legitimate to impose some restrictions on their right of assembly in the interest of public safety.”959 Similarly, the duty of refugees living in camps and settlements “to abstain from any activity likely to detract from the exclusively civilian and humanitarian character of the camps and settlements”960 might logically entail some constraints on expressive freedom to ensure public safety. Fifth, expressive freedom may be limited for reasons of public health. One could imagine the logic of invoking this ground to prohibit the advocacy of

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in any manner which would violate the sovereignty, political independence, territorial integrity and national unity or disrupt the political, economic, and social stability of another State”: Declaration on the Inadmissibility of Intervention in the Internal Affairs of States, UNGA. Res. 103(XXVI), adopted Dec. 9, 1981, at Art. II(b). By virtue of the Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States, UNGA Res. 2625(XXV), adopted Nov. 4, 1970, governments have committed themselves not to “organize, assist, foment, finance, incite, or tolerate subversive terrorist or armed activities directed toward the violent overthrow of another State.” See text at note 805. 956 See text at note 806. “As the Committee has consistently found . . . the State party must demonstrate in specific fashion the precise nature of the threat to any of the enumerated purposes caused by the author’s conduct . . . In the absence of any individualized justification therefore of why the measures taken were necessary in the present case for an enumerated purpose . . . the Committee finds a violation of the author’s right to freedom of expression”: Shin v. Republic of Korea, HRC Comm. No. 926/2000, UN Doc. CCPR/C/80/D/926/2000, decided Mar. 16, 2004, at [7.3]. UN Doc. E/CN.4/L.145. 959 Partsch, “Freedom of Conscience,” at 234. UNHCR Executive Committee Conclusion No. 48, “Military or Armed Attacks on Refugee Camps and Settlements” (1987), at [4(a)]. States further commit themselves “to do all within their capacity to ensure that the civilian and humanitarian character of such camps and settlements is maintained”: ibid. at [4(b)].

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traditional practices known to pose a serious risk to health, including many forms of female genital mutilation, or to circumscribe a right of assembly based on the need to prevent the spread of a serious and easily communicable disease. The sixth reason authorized for limiting expressive freedom is the protection of “public morals.” The understanding of this notion embraced by the Human Rights Committee in the context of defining the scope of permissible restrictions on freedom of thought, conscience, and religion is instructive: [T]he concept of morals derives from many social, philosophical and religious traditions: consequently, limitations . . . for the purpose of protecting morals must be based on principles not deriving from a single tradition . . . [They must also be] directly related and proportionate to the specific need on which they are predicated.961

The universalism of this standard is appropriate to a treaty intended to establish global standards,962 while the insistence on a constrained application of this potentially all-encompassing ground is critical to ensuring that no limitation on expressive freedom may “put in jeopardy the right itself.”963 Despite the breadth of some of these grounds for limitation, the possibility of fundamental erosion of expressive freedom by the imposition of relevant limitations is significantly constrained by the third general requirement set by the Covenant. It is not enough for a given restriction to be set by law and related to one of the permitted grounds of limitation; it must rather be demonstrably necessary (freedom of expression) or necessary in a democratic society (rights of assembly and association) to secure the enumerated interest.964 As previously described, the drafters of the Covenant conceived the necessity standard as requiring that a restriction be objectively justifiable as 961

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UN Human Rights Committee, “General Comment No. 22: Freedom of Thought, Conscience or Religion” (1993), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [8]. Importantly, the Human Rights Committee explicitly adopted this understanding for purposes of restrictions under Art. 19: UN Human Rights Committee, “General Comment No. 34: Freedom of Opinion and Expression,” UN Doc. CCPR/C/GC/34, Sept. 12, 2011, at [32]. The approach in General Comment No. 22 may be contrasted with the more relativist perspective adopted by the Committee in its earlier decision of Hertzberg et al. v. Finland, HRC Comm. No. 61/1979, decided Apr. 2, 1982. In dismissing a claim based on state efforts to censor the broadcast of material dealing with homosexuality, the Committee opined that “public morals differ widely. There is no universally applicable common standard. Consequently, in this respect, a certain margin of discretion must be accorded national authorities”: ibid. at [10.3]. UN Human Rights Committee, “General Comment No. 34: Freedom of Opinion and Expression,” UN Doc. CCPR/C/GC/34, Sept. 12, 2011, at [21]. “It is for the state party to demonstrate the legal basis for any restrictions imposed on freedom of expression”: ibid. at [27]. See also Viktor Korneenko v. Belarus, HRC Comm. No. 1553/2007, UN Doc. CCPR/C/95/D/1553/2007, decided Mar. 20, 2009, at [8.3].

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essential to the attainment of the approved purpose.965 In the result, a right should not be abridged if some other, non-rights-violative option is available. Even where there is no alternative but to infringe a right, the abridgment should be kept to the absolute minimum required by the circumstances966 – a standard not met, for example, when India imposed a complete ban on all LTTE-related activities of refugees after the assassination of Rajiv Gandhi.967 Moreover, any restriction on two forms of expressive freedom – the rights to freedom of assembly and association – must not only be “necessary,” but also be demonstrably “necessary in a democratic society.” The drafters did not define this notion with precision, opting instead to endorse a flexible but nonetheless internationalist standard: It was argued [by some members of the Commission on Human Rights] that it was impossible to discern a uniform understanding of democracy common to all countries of the world. On the other hand, it was submitted that freedom of assembly [and association] cannot be effectively protected if the limitations proviso is not applied in conformity with certain minimum democratic principles, which stem, inter alia, from the respect for the principles of the UN Charter, the Universal Declaration of Human Rights, and the two Covenants.968

More specifically, for restrictions to be “necessary in a democratic society” they must “be necessary and proportionate in the context of a society based on democracy, the rule of law, political pluralism and human rights, as opposed to being merely reasonable or expedient.”969 It would, for example, be difficult to imagine that this standard was met when Thailand detained Burmese pro-democracy refugees simply for calling attention to 965 966

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See Chapter 5.2 at note 414 ff. “[T]hey must be the least intrusive instrument amongst those which might achieve their protective function”: UN Human Rights Committee, “General Comment No. 34: Freedom of Opinion and Expression,” UN Doc. CCPR/C/GC/34, Sept. 12, 2011, at [34]. See e.g. Rafael Marques de Morais v. Angola, HRC Comm. No. 1128/2002, UN Doc. CCPR/C/83/ D/1128/2002, decided Mar. 29, 2005; Coleman v. Australia, HRC Comm. No. 1157/2003, UN Doc. CCPR/C/87/D/1157/2003, decided Aug. 10, 2006; and Bodrozic v. Serbia and Montenegro, HRC Comm. No. 1180/2003, UN Doc. CCPR/C/85/D/1180/2003, decided Oct. 31, 2005. See text at note 796. Schabas, Nowak’s CCPR Commentary, at 607. More specifically, the litmus test for a valid limitation should be whether the constraint is “oriented along the basic democratic values of pluralism, tolerance, broad-mindedness, and peoples’ sovereignty”: ibid. at 624. UN Human Rights Committee, “General Comment No. 37: Article 21, Right of Peaceful Assembly,” UN Doc. CCPR/C/GC/37, July 23, 2020, at [40]. Thus, the Human Rights Committee has made clear that the “democratic society” clause requires respect for peaceful protests that promote ideas not viewed favorably by the government or even by most of the population: Belyatsky v. Belarus, HRC Comm. No. 1296/2004, UN Doc. CCPR/C/90/D/1296/2004, decided July 24, 2007.

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the internationally condemned detention of the then-leader of the opposition, Aung San Suu Kyi.970 Beyond limitations imposed by international human rights law, the political activities (though not the opinions) of refugees, like those of all persons subject to the host state’s authority, may also be constrained to meet that state’s obligations to maintain international peace and security971 – for example, the decision of South Korea to prohibit the launching of political balloons by North Korean refugees across the demilitarized zone after one such launch provoked a shootout in 2014.972 Regrettably, host states are unlikely to be inclined to take this obligation seriously when refugees are used as the instruments of the host state’s own aggressive policies973 – for example, Pakistan’s arming of Afghan rebels in exile,974 or Turkey’s encouragement of attacks on Syria launched from refugee camps.975 Indeed, scenarios of this kind represent the clearest example of a situation in which the host government is itself liable for the aggressive actions of refugees, and thus is both entitled and reasonably expected to constrain activities that enable them.976

6.6 International Travel With few exceptions, international travel has long required the possession of a passport issued by a national government. Yet refugees often arrive without a passport from their country of origin, either because they were incapable of (practically or safely) securing that document before departure, or because its destruction was effectively compelled to avoid visa controls, carrier sanctions, or other impediments to their escape and entry

970 971

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See text at note 801. All states are required by the Charter of the United Nations to “refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state”: UN Charter, 1 UNTS 16, adopted June 26, 1945, at Art. 2(4). See text at note 797. The UN General Assembly has affirmed that states are under a duty to prevent aggression, defined to include “[t]he sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to [aggression], or its substantial involvement therein”: UNGA Res. 3314(XXIX), Dec. 14, 1974. See text at note 793. 975 See text at note 794. As suggested by the International Law Commission, “[t]he conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct”: “Draft Articles on Responsibility of States for Internationally Wrongful Acts,” UN Doc. A/56/10, Ch. IV.E.1, adopted Nov. 2001, at Art. 8. The duty to take corrective action follows from the principle that “[e]very internationally wrongful act of a State entails the international responsibility of that State”: ibid. at Art. 1.

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into an asylum state.977 Even once inside the asylum country, refugees are not free to apply for a passport from the consular authorities of their country of origin, since to do so risks the cessation of their refugee status in accordance with Art. 1(C)(1) of the Convention.978 In such circumstances, a refugee “would . . . be unable to leave the initial reception country if a document replacing the passport had not been established for their benefit.”979 The Refugee Convention therefore provides for the issuance to refugees of a Convention Travel Document (CTD) intended to serve the purpose of a national passport. While most state parties to the Refugee Convention now make these documents available,980 UNHCR and the ILO have reported that “[o]ne of the most important obstacles [to mobility] seems to be the reluctance of many host countries to issue travel documents on the basis of Article 28(1) of the [Refugee] Convention.”981 For example, refugees applying for travel documents in Rwanda reportedly face scrutiny of their motives, leading some to simply abandon plans to travel overseas.982 Kenya both stipulates the reasons for which a CTD may be issued and “has an unofficial policy of denying re-admission to refugees who travel irregularly outside 977

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The drafters recognized that the use of false documents to seek asylum was sometimes unavoidable, and was not a basis for the penalization of refugees so long as the requirements of Art. 31(1) are met: see Chapter 4.2.2. “This Convention shall cease to apply to any person falling under the terms of section A if . . . [h]e has voluntarily re-availed himself of the protection of the country of his nationality”: Refugee Convention, at Art. 1(C)(1). See M. Zieck, “Refugees and the Right to Freedom of Movement: From Flight to Return,” (2018) 39(1) Michigan Journal of International Law 19 (Zieck, “Freedom of Movement”), at 89–90. Indeed, the same clause may even be interpreted to authorize the termination of refugee status in the event a refugee who arrived with a national passport presents his or her national passport in order to secure entry into a third country. UNHCR seeks to limit the scope of Art. 1(C)(1) by, for example, arguing that there is “re-availment” only when a passport is both applied for and received, not simply when it is used for travel abroad: see UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status (1979, re-issued 1992 and 2019) (UNHCR, Handbook), at [118]–[125]. But this construction may be contested on the grounds that the presentation of a government’s passport in order to secure entry into a third state amounts, in law, to an invocation of the issuing state’s protective authority. Lambert observes that “[t]he Convention Travel Document (CTD) should be used in place of a national passport or identity card by the refugee; otherwise there is a serious risk that he or she will lose refugee status”: H. Lambert, Seeking Asylum: Comparative Law and Practice in Selected European Countries, (1995), at 163. See generally J. Hathaway and M. Foster, The Law of Refugee Status (2014), at 464–470. Secretary-General, “Memorandum,” at 41. UNHCR, “Note on Follow-Up to the Earlier Conclusion of the Executive Committee on Travel Documents for Refugees,” UN Doc. EC/SCP/48, July 3, 1987 (UNHCR, “Travel Documents Follow-Up”); and UNHCR, “UNHCR Annual Update 2017: MachineReadable Travel Documents for Refugees and Stateless Persons” (2018). UNHCR and the International Labour Office, “Labour Mobility for Refugees: Workshop in Geneva, 11–12 September 2012: Summary Conclusions,” at [13]. R. Rwirahira, “Refugee Travel Pass Upgraded,” East African, Feb. 4, 2018.

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Kenya.”983 Hungary reserves the right to reject applications for travel documents on grounds of national security and public order identified by the National Security Authority, the National Tax and Customs Administration, or the police.984 States may also simply fail to implement the legislative or administrative changes required to ensure the provision of travel documents to refugees.985 For example, Serbian law provides for the issuance to refugees of travel documents,986 but the absence of implementing bylaws has resulted in a legal vacuum in which “recognized refugees can only leave Serbia illegally, unless they possess a valid travel document issued by their country of origin.”987 Even states that routinely issue travel documents to refugees may not guarantee the readmission of refugees who travel abroad using their CTD. Uganda expects returning refugees to present not only their travel document, but also their refugee identity card before being allowed back in.988 Australia989 983

984

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The permissible reasons are broadly defined, including “resettlement, education, medical, employment, business, family, humanitarian or leisure”: Immigration and Refugee Board of Canada, “Kenya: Ability of Refugees with a Refugee Identity Card to Travel outside Kenya,” Nov. 7, 2016. Hungary, Government Decree 301/2007 on the implementation of the Act on Asylum, Section 4/A, www.refworld.org/docid/524544c44.html, accessed Mar. 10, 2020. UNHCR, “Travel Documents Follow-Up,” at [4]. Serbia, Act on Asylum and Temporary Protection, at Art. 101. Asylum Information Database, “Unravelling Travelling: Travel Documents for Beneficiaries of International Protection,” October 2016 (Asylum Information Database, “Unravelling Travelling”), at 5–6. “Due to this legal vacuum, refugees’ freedom of movement is limited even though it is guaranteed by the Serbian Constitution and the ECHR. This means that refugees can leave Serbia only illegally unless they possess a valid travel document issued by their country of origin. In light of this situation, in which one Syrian refugee who was granted asylum in Serbia found himself, the BCHR filed a constitutional appeal with the Constitutional Court in 2015 . . . The Constitutional Court dismissed the constitutional appeal on 20 June 2016, stating that the subject of constitutional appeal cannot be a failure to adopt general legal act, but only the individual act as it is prescribed by Article 170 of the Constitution . . . BCHR has lodged an application to the ECtHR stating a violation of Article 2(2) Protocol 4 ECHR which provides that everyone shall be free to leave any country, and of Article 2(3) stating that no restrictions may be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of public order, etc.”: Asylum Information Database, “Country Report: Serbia 2018” (2019), www.asylumineurope.org, accessed Mar. 10, 2020. Immigration and Refugee Board of Canada, “Uganda: The Ugandan Refugee Identity Card,” Mar. 17, 2009, at 3. “The Australian government issues a Convention Travel Document, also known as a ‘Titre de Voyage,’ to refugees lawfully residing in Australia. The Convention Travel Document . . . does not give the holder a right to re-enter Australia and the bearer needs to obtain a reentry visa to reenter Australia. The travel document is valid usually for one or two years”: P. Sosa, “The Regulatory Leash of the One-Year Refugee Travel Document,” (2018) 52(2) Columbia Journal of Law and Social Problems 273 (Sosa, “OneYear Travel Document”), at 287–288.

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and India990 require refugees holding their CTD also to secure a reentry visa. As UNHCR noted, “restrictions on the validity of the return clause or refusal of readmission can seriously reduce the value of the travel documents by discouraging other States from granting visas, and could even have wider consequences, e.g. jeopardizing educational schemes for refugees.”991 In some states, including Canada and New Zealand,992 a travel document is not issued until refugee status has been formally recognized. Norway takes the view that “travel documents . . . may be refused where there is doubt about the foreign national’s identity,”993 a limitation determined to be valid by its Supreme Court.994 Denmark considered the adoption of legislation that would authorize the denial of travel documents to refugees not only on national security or public order grounds, but also where the “reputation of [the] state” might be implicated.995 There may also be geographical restrictions on the validity of refugee travel documents; for example, all but four European countries prohibit travel to the refugee’s country of origin.996 In other cases, geographic validity may be indirectly limited by the duration of the document’s validity. Refugee travel documents issued by the United States, for example, are valid for only one year and may not be renewed prior to the expiration of the preceding travel document.997 As a result, [refugee travel document] holders can only travel to countries that require a six-month validity period on travel documents for six months out of their year. For the remaining six-month validity period, [refugee travel 990

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Immigration and Refugee Board of Canada, “India: Ability of Tibetan refugees to exit and re-enter India, including the requirements and procedures for Tibetan refugees to obtain and renew an Identity Certificate (IC) and a ‘No Objection to Return to India’ stamp; whether the IC can be renewed from abroad; Visa requirements for Tibetans returning to India,” Dec. 12, 2014. UNHCR, “Travel Documents Follow-Up,” at [11]. Sosa, “One-Year Travel Document,” at 285–286, 287. UNHCR, “Amicus curiae of the United Nations High Commissioner for Refugees (UNHCR) on the interpretation and application of Article 25, Article 27 and Article 28 of the 1951 Convention Relating to the Status of Refugees,” Dec. 22, 2016, at [47]. Immigration Appeals Board v. A, B, and C, Case No. 2017/670, HR-2017-2078-A (Nor. SC, Oct. 31, 2017). UNHCR, “Observations on the proposed amendments to the Danish Aliens legislation,” Oct. 25, 2017, at [12]. “With the exception of Malta, Belgium, Italy and Croatia, all 20 European countries have included a limitation on the geographical scope of the travel documents issued to beneficiaries of international protection”: Asylum Information Database, “Unravelling Travelling,” at 7. Similar limitations are also recognized in Canada and the United Kingdom, among other states: Sosa, “One-Year Travel Document,” at 285, 287. Beneficiaries of subsidiary protection in the EU states are, in the majority of cases, notably exempt from these restrictions: Asylum Information Database, “Unravelling Travelling,” at 8. 8 USC §1158(c)(1)(C); 8 CFR §223.2. See also Sosa, “One-Year Travel Document,” at 294–296.

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document] holders have to restrict their personal and business travel to countries that do not require six months validity period. Schengen countries, for example, are administratively “blacked out” for six months out of the year.998

More generally, there is a wide range of validity periods among states that issue travel documents: Turkey has reportedly imposed a strict ten-month limit, while Ireland and the United Kingdom recognize a maximum period of ten years.999 The divergence is due in some cases to the practice of linking the validity period to the duration of a refugee’s right to remain in the issuing state’s territory.1000 For this reason, a diversity of duration periods may result even within an issuing state: travel document validity dates in South Africa, for instance, are determined to coincide with the validity of the refugee permit, the duration of which ranges from three months to four years, and which can be renewed for up to five years.1001 There may also be significant delays in the granting1002 or renewal1003 of travel documents. Some countries are quite flexible – Romania, for example, will grant a travel document at its consulates abroad to refugees who left its territory without documentation but who need it to return.1004 Nepal, in contrast, is an example of a country with a cumbersome and expensive procedure. Tibetan refugees seeking to travel outside Nepal have reported being required to pay bribes in order to obtain a non-renewable travel document that is valid for only one trip in one year.1005 Those who wish to venture 998 999

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Sosa, “One-Year Travel Document,” at 305. Asylum Information Database, “Unravelling Travelling,” at 5–7. In EU states, such discrepancies result in part from the lack of a uniform rule: “Contrary to the Schedule [of the Refugee Convention], Article 25 of the recast Qualification Directive does not provide guidance on the duration of validity of travel documents issued by EU Member States. As a result of this, there is great divergence in the practice of Member States in relation to the duration of validity of travel documents issued to refugees and to beneficiaries of subsidiary protection”: ibid. at 5. Ibid. at 6. Immigration and Refugee Board of Canada, “South Africa: Circumstances under which the Department of Home Affairs Issues Passports to Non-citizens; Information Contained in the Passports,” Sept. 2, 2015. “In certain countries . . . applications can take from six to twelve months to process. Such protracted periods lead to obvious hardship for refugees, and may delay resettlement and lead to loss of educational or employment opportunities”: UNHCR, “Travel Documents Follow-Up,” at [7]. A number of states have not empowered their diplomatic or consular authorities to renew or extend travel documents: ibid. at [12]. Asylum Information Database, “Country Report: Romania 2018” (2019), www .asylumineurope.org, accessed Mar. 10, 2020, at 128. “Sources indicate that if an individual has a valid RIC [Refugee Identity Card] they may apply for a refugee travel document; the process is lengthy and expensive and the issuance of the document is subject to the discretion of officials. The representative from the Tibetan Refugee Welfare Office in Kathmandu similarly noted that the application

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abroad must moreover surrender their internal refugee identity cards while they are abroad.1006 More generally, the ability of a refugee to secure a travel document may also be compromised by disagreements between governments about which has the responsibility to issue documents when a particular refugee is thought to have ties to more than one state party.1007 Japan addresses this concern by requiring the submission of foreign-issued refugee travel documents prior to issuing its own.1008 Yet only Europe has a comprehensive set of arrangements in place to resolve the details of transfer of responsibility to issue refugee travel documents.1009 While governments generally recognize valid refugee travel documents as the equivalent of a passport, countries have in rare cases refused entry to those in possession of such documents. Until recently, for example, Qatar did not accept refugee travel documents,1010 and the United Arab Emirates continues to withhold visas and entry to persons traveling without passports issued by their country of nationality.1011 More generally, with the exception of state parties to the 1959

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process is lengthy, challenges to obtaining the travel document may include paying bribes to officials, and that the travel document is only valid for one year and it cannot be renewed from abroad . . . Both the TJC [Tibet Justice Center] report and Human Rights Watch state that in order to qualify for a travel document, the applicant must present an RIC as well as documents detailing the purpose of the trip and pay a fee. The ICT [International Campaign for Tibet] notes that the applicant must now be able to produce a police letter certifying a clean criminal record, an invitation letter, the invitee’s bank statement and passport copy, an air ticket, a letter with details about the trip and an RC [Refugee Card]. Kathmandu’s Chief District Officer is required to verify all the documents and issue an approval letter”: Immigration and Refugee Board of Canada, “Nepal: Situation of Tibetans with a Refugee Identity Card (RIC),” Jan. 9, 2015. Ibid. 1007 UNHCR, “Travel Documents Follow-Up,” at [13], [14]. Japan, Immigration Control and Refugee Recognition Act, Article 61-2-12(2). Under the European Agreement on Transfer of Responsibility for Refugees, 107 ETS, done Oct. 16, 1980, responsibility is considered to be transferred after two years of legal and continuous stay in a second state, or sooner if the refugee has been granted a permanent stay, or allowed to stay for a period that exceeds the validity of the travel document upon which he or she entered the country. The Agreement had only been signed by seventeen European states, and ratified by thirteen; the United Kingdom has, moreover, withdrawn its policy resulting from the obligations of the Agreement: Council of Europe, “European Agreement on Transfer of Responsibility for Refugees,” www .coe.int/en/web/conventions/, accessed Mar. 10, 2020. Conflicting interpretations of the Agreement have also led to divergent practice, with some states arguing “that the shift in responsibility only entails a shift in the responsible party to issue a travel document, whereas others believe that the transfer shifts full responsibility to the second Contracting State”: Asylum Information Database, “Unravelling Travelling,” at 10. See Sterling Law, “Travelling with UK Refugee Travel Document: Visa Requirements and Restrictions,” May 12, 2018 (Sterling Law, “UK Refugee Travel Document”). This policy changed in late 2018 with Qatar’s adoption of Law No. 11 of 2018 Regulating Political Asylum, which authorizes the issuance of travel documents to refugees: G. Sadek, “Qatar: Amir Ratifies Country’s First Asylum Law,” Law Library of Congress, Nov. 8, 2018; see also Human Rights Watch, “Qatar: Gulf’s First Refugee Asylum Law,” Oct. 30, 2018. See e.g. Lexology, “Refugee Travel Documents and Visa Free Travel,” Aug. 9, 2017; Sterling Law, “UK Refugee Travel Document”; Embassy of the United Arab Emirates at

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European Agreement on the Abolition of Visas for Refugees,1012 refugees holding a CTD are also frequently expected to secure a valid transit or entry visa. Refugee Convention, Art. 28 Travel Documents 1. The Contracting States shall issue to refugees lawfully staying in their territory travel documents for the purpose of travel outside their territory, unless compelling reasons of national security or public order otherwise require, and the provisions of the Schedule to this Convention shall apply with respect to such documents. The Contracting States may issue such a travel document to any other refugee in their territory; they shall in particular give sympathetic consideration to the issue of such a travel document to refugees in their territory who are unable to obtain a travel document from the country of their lawful residence. 2. Travel documents issued to refugees under previous international agreements by parties thereto shall be recognized and treated by the Contracting States in the same way as if they had been issued pursuant to this article. Refugee Convention, Schedule 1. (1) The travel document referred to in article 28 of this Convention shall be similar to the specimen annexed hereto. (2) The document shall be made out in at least two languages, one of which shall be English or French. 2. Subject to the regulations obtaining in the country of issue, children may be included in the travel document

1012

Washington, D.C., “Visa Requirements for Non-US Citizens (Tourist Passports),” www .uae-embassy.org/services-resources/visas-passports/non-us-citizens, accessed Mar. 10, 2020. Several European countries have also refused travel documents from other countries: “These include Croatia not accepting travel documents for refugees issued by Denmark, Switzerland and Liechtenstein, and Hungary not accepting travel documents for Palestinians issued by Syria. As for the travel documents issued by another country and recognised in Belgium, the Aliens Office refers to the travel documents lists on the DG HOME [European Commission Directorate for Migration and Home Affairs] website. This practice is also applied in Sweden. In Bulgaria, problems have arisen where the issuing country has failed to upload information either about the issuance of the travel document or its prolongation in the respective EU lists compiled by DG HOME. These situations have resulted in temporary detention or non-admittance of beneficiaries to Bulgarian territory”: Asylum Information Database, “Unravelling Travelling,” at 8–9. 31 ETS, done Apr. 20, 1959, entered into force Apr. 9, 1960. This agreement exempts refugees from visa requirements for visits of under three months. There are also various bilateral arrangements among European states to similar effect: UNHCR, “Travel Documents Follow-Up,” at [20].

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of a parent or, in exceptional circumstances, of another adult refugee. 3. The fees charged for issue of the document shall not exceed the lowest scale of charges for national passports. 4. Save in special or exceptional cases, the document shall be made valid for the largest possible number of countries. 5. The document shall have a validity of either one or two years, at the discretion of the issuing authority. 6. (1) The renewal or extension of the validity of the document is a matter for the authority which issued it, so long as the holder has not established lawful residence in another territory and resides lawfully in the territory of the said authority. The issue of a new document is, under the same conditions, a matter for the authority which issued the former document. (2) Diplomatic or consular authorities, specially authorized for the purpose, shall be empowered to extend, for a period not exceeding six months, the validity of travel documents issued by their Governments. (3) The Contracting States shall give sympathetic consideration to renewing or extending the validity of travel documents or issuing new documents to refugees no longer lawfully resident in their territory who are unable to obtain a travel document from the country of their lawful residence. 7. The Contracting States shall recognize the validity of the documents issued in accordance with the provisions of article 28 of this Convention. 8. The competent authorities of the country to which the refugee desires to proceed shall, if they are prepared to admit him and if a visa is required, affix a visa on the document of which he is the holder. 9. (1) The Contracting States undertake to issue transit visas to refugees who have obtained visas for a territory of final destination. (2) The issue of such visas may be refused on grounds which would justify refusal of a visa to any alien. 10. The fees for the issue of exit, entry or transit visas shall not exceed the lowest scale of charges for visas on foreign passports. 11. When a refugee has lawfully taken up residence in the territory of another Contracting State, the responsibility

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for the issue of a new document, under the terms and conditions of article 28, shall be that of the competent authority of that territory, to which the refugee shall be entitled to apply. 12. The authority issuing a new document shall withdraw the old document and shall return it to the country of issue if it is stated in the document that it should be so returned; otherwise it shall withdraw and cancel the document. 13. (1) Each Contracting State undertakes that the holder of a travel document issued by it in accordance with article 28 of this Convention shall be readmitted to its territory at any time during the period of its validity. (2) Subject to the provisions of the preceding sub-paragraph, a Contracting State may require the holder of the document to comply with such formalities as may be prescribed in regard to exit from or return to its territory. (3) The Contracting States reserve the right, in exceptional cases, or in cases where the refugee’s stay is authorized for a specific period, when issuing the document, to limit the period during which the refugee may return to a period of not less than three months. 14. Subject only to the terms of paragraph 13, the provisions of this Schedule in no way affect the laws and regulations governing the conditions of admission to, transit through, residence and establishment in, and departure from, the territories of the Contracting States. 15. Neither the issue of the document nor the entries made thereon determine or affect the status of the holder, particularly as regards nationality. 16. The issue of the document does not in any way entitle the holder to the protection of the diplomatic or consular authorities of the country of issue, and does not confer on these authorities a right of protection. Refugee Convention, Art. 11 Refugee Seamen In the case of refugees regularly serving as crew members on board a ship flying the flag of a Contracting State, that State shall give sympathetic consideration to their establishment on its territory and the issue of travel documents to them or their temporary admission to its territory particularly with a view to facilitating their establishment in another country.

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Recommendation A of the Conference of Plenipotentiaries The Conference, [c]onsidering that the issue and recognition of travel documents is necessary to facilitate the movement of refugees, and in particular their resettlement; [u]rges Governments which are parties to the Inter-Governmental Agreement on Refugee Travel Documents signed in London [on] 15 October 1946, or which recognize travel documents issued in accordance with the Agreement, to continue to issue or to recognize such travel documents, and to extend the issue of such documents to refugees as defined in article 1 of the Convention relating to the Status of Refugees or to recognize the travel documents so issued to such persons, until they shall have undertaken obligations under article 28 of the said Convention. ... Civil and Political Covenant, Art. 12 ...

2. Everyone shall be free to leave any country, including his own. 3. The above-mentioned right[] shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant. 4. No one shall be arbitrarily deprived of the right to enter his own country. Despite its rather simple title, Art. 28 of the Convention is about much more than just the issuance to refugees of a Convention Travel Document (CTD). In line with earlier refugee treaties, this article commits governments to administer an interstate system which dispenses with the need for passports for travel by refugees between and through state parties. By virtue of Art. 28 and its Schedule, governments oblige themselves not only to issue CTDs, but more importantly to honor the refugee travel documents issued by other state parties, to make transit visas available to refugees as required, and to readmit the holders of refugee travel documents issued by them. The net result is to establish a unified regime for international freedom of movement that exists in parallel to the more general passport-based system. The CTD system is intended both to enable refugees “to travel on business or on a holiday”1013 and, perhaps more importantly, to make it possible for refugees to move beyond their state of first asylum in search of a durable home. As the British representative to the Ad Hoc Committee succinctly observed, 1013

Statement of Mr. Hoeg of Denmark, UN Doc. A/CONF.2/SR.17, July 12, 1951, at 9.

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“[o]ne object of a travel document [is] to allow a refugee to go out and find his feet in another country.”1014 The facilitation of onward movement was, indeed, the primary goal of earlier refugee treaties, some of which provided refugees with few benefits beyond a travel document.1015 But entitlement to a Convention Travel Document is in no sense dependent on demonstration of any particularly important purpose; refugees should rather generally be free to travel abroad for the reasons that matter to them, without facing the sort of scrutiny of motives that, for example, Rwanda has engaged in.1016 In line with most earlier treaties, states are only obliged to issue a travel document to a refugee who is lawfully staying in their territory. The practice of states such as Canada1017 and New Zealand,1018 which issue the CTD only after formal status verification, is therefore in compliance with the Convention.1019 But the importance attached to enabling refugees to seek a home beyond the first 1014

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Statement of Sir Leslie Brass of the United Kingdom, UN Doc. E/AC.32/SR.39, Aug. 21, 1950, at 10. “The problem of travel documents was the one with which the concern of the comity of nations for refugees actually began. The July 5, 1922 Arrangement . . ., that of May 31, 1924 . . ., [and] the Arrangements of May 12, 1926, June 30, 1928, and July 30, 1935, dealt exclusively with travel documents. The 1933 and 1938 Conventions also imposed on the Contracting Parties the obligations to issue travel documents, and the first post-World War II agreement, that of October 15, 1946, again treated of travel documents only”: Robinson, History, at 135. See text at note 982. See also J. Vedsted-Hansen, “Article 28,” in A. Zimmermann ed., The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary 1177 (2011) (Vedsted-Hansen, “Article 28”), at 1205, observing that Art. 28 “does not imply that the individual refugee is, or may be, required to specify the purpose of his or her travel in order to obtain a travel document”; and UNHCR, “Amicus curiae of the United Nations High Commissioner for Refugees (UNHCR) on the interpretation and application of Article 25, Article 27 and Article 28 of the 1951 Convention Relating to the Status of Refugees,” Dec. 22, 2016, at [37], noting that “a Contracting State may not refuse to issue a CTD to a refugee if, for example, it regards the proposed travel as inappropriate.” See text at note 992. 1018 Ibid. Importantly, “lawful stay” is in no sense dependent on a formal finding that a person qualifies as a Convention refugee. To the contrary, if a given country chooses not to operate a formal refugee status determination system a refugee is lawfully staying if allowed to remain on a de facto ongoing basis in that country: see Chapter 3.1.4 at note 211. It is therefore not correct to argue that “[t]he functioning of Art. 28 is essentially dependent on States having established an organizational system for the examination of asylum applications and determination of applicants’ refugee status”: Vedsted-Hansen, “Article 28,” at 1212–1213. Indeed, as the same author notes, such an interpretation would run up against the duty to interpret a treaty in a way that promotes its efficacy (see Chapter 2.3) since “a likely implication of the dependence on States’ administrative resources seems to be that many refugees qualifying under this provision may be unable to realize the right to have such a travel document issued”: ibid. at 1213. For the same reason, it is not sound to suggest that “some sort of procedure is required if States are to meet their obligations under provisions such as article 28,” thereby calling into question the ability of a refugee admitted under a resettlement program to claim a CTD: G. Goodwin-Gill and J. McAdam, The Refugee in International Law (2007) (Goodwin-Gill and McAdam, Refugee in International Law), at 517.

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asylum country is particularly clear from the decision taken to grant states the right – though not to impose a duty upon them – to issue CTDs even to refugees not “lawfully staying” in their territory, and therefore not able formally to claim the benefit of Art. 28. The authorization of states to issue travel documents to “any other refugee in their territory” was a departure from predecessor agreements, which allowed no more than transitional exceptions to the rule that only refugees who were “lawfully staying” in a state party were entitled to receive a travel document.1020 The origin of the expanded authority was an intervention by the Danish representative to the Ad Hoc Committee, who raised the question of travel documents for refugees “who had just arrived in the initial reception country”:1021 He took as an example the hypothetical case of a German refugee arriving clandestinely in Denmark, without identity papers, and anxious to travel to the United States for family or other reasons. In accordance with paragraph 1 of article [28] as adopted, Denmark would not issue him travel documents, because he did not reside regularly in that country. If, therefore, the real objective was to protect the interests of refugees effectively, it seemed expedient to make some provision whereby Denmark would be able to grant such a refugee a travel document . . . He therefore proposed that article [28] should be so amended that the High Contracting Parties would be able to grant travel documents to all refugees in their territory, whatever their status in the eyes of the law, with the sole stipulation that they should not be regularly resident in another country.1022

Mr. Larsen concluded his plea by noting the critical importance of travel documents to enabling refugees to “test the waters” in their intended country of asylum: A refugee who arrived in Denmark, for example, and was immediately granted a travel document, could go for a certain period of time to the country where he intended to settle; while there, he could obtain 1020

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Under the Agreement relating to the issue of a travel document to refugees who are the concern of the Inter-Governmental Committee on Refugees, 11 UNTS 150, at 73 (London Agreement), at Art. 2, there was only a transitional exception for refugees already present in a state party (though not “lawfully staying” there) as of the date the agreement entered into force. The same approach was taken in the 1938 Refugee Convention, at Art. 3(1)(b). The 1933 Refugee Convention, however, took a more general liberal stance, requiring the issuance of a refugee travel document to any refugee “residing regularly” in a state’s territory: 1933 Refugee Convention, at Art. 2. Statement of Mr. Larsen of Denmark, UN Doc. E/AC.32/SR.16, Jan. 30, 1950, at 11. Interestingly, though, the Secretary-General had proposed a lower general standard of attachment for issuance of a CTD, namely that a refugee be only “regularly resident” in the territory of a state party: Secretary-General, “Memorandum,” at 41. See also France, “Draft Convention,” at 7. Thus, the decision to adopt a higher mandatory standard (lawful stay) together with a lower optional standard (any refugee) was in some sense reflective of a more general desire among some delegates to liberalize access to the CTD system overall. Statement of Mr. Larsen of Denmark, UN Doc. E/AC.32/SR.16, Jan. 30, 1950, at 11–12.

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authorization to reside there regularly. On the other hand, if such a refugee had no freedom of movement but was confined to Denmark owing to the lack of a travel document, it would be very difficult for him to study the possibility of settling elsewhere.1023

It was therefore agreed that in the interest of promoting freedom of onward movement, the authority to issue travel documents should extend to all refugees in a state’s territory,1024 even if there only for a brief period of time,1025 and whether their refugee status has been formally verified or not.1026 As noted by Lord Rodger in the House of Lords, [U]nder article 28, by contrast with the equivalent provision in earlier conventions, Contracting States may issue [refugee] travel documents even to refugees who are not lawfully in their territory. And the travaux préparatoires 1023 1024

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Ibid. at 14. States are not, however, entitled to issue a CTD to a refugee not physically present on their territory. At the Conference of Plenipotentiaries, the President opined that “the phrase ‘in their territory’ . . . was unnecessarily restrictive. He failed to see why a Contracting State should be prevented from issuing a travel document to a refugee outside its borders”: Statement of the President, Mr. Larsen of Denmark, UN Doc. A/ CONF.2/SR.12, July 9, 1951, at 5. No other state expressed support for this view, and no relevant amendment to the text of Art. 28 was proposed. The insistence on a territorial connection may reflect the view, articulated in the Ad Hoc Committee, that “the article would be weakened if it were framed [by deleting the words ‘in their territory’] so as to permit Contracting States to issue travel documents to refugees who were in no way connected with them . . . [There were] obvious difficulties of obtaining reliable certificates of identity”: Statement of Sir Leslie Brass of the United Kingdom, UN Doc. E/ AC.32/SR.42, Aug. 24, 1950, at 6. The legality of Romania’s policy (see text at note 1004) of granting a CTD at its consulates abroad to refugees who left its territory without documentation but who need it to return is thus unclear. On the one hand, a consulate – while under the flag state’s jurisdiction – is not part of its territory: see Chapter 3.1.2 at note 120; see also Vedsted-Hansen, “Article 28,” at 1204 (“In any event it is a precondition for the issuance of a travel document that the refugee has a territorial connection to the issuing State. The text leaves no doubt in this regard”). As a policy matter, however, Romania’s restriction of this extended authority only to refugees who were previously in its territory answers the concern of the UK delegate to guard against the issuance of travel documents to “refugees who were in no way connected with them.” The representative of the International Refugee Organization “warmly supported the opinion of the representative of Denmark. If the High Contracting Parties could grant travel documents to refugees not regularly resident in their territory, that would give many refugees an opportunity to settle permanently, in full knowledge of the circumstances, and therefore in the best possible conditions”: Statement of Mr. Weis of the IRO, UN Doc. E/AC.32/SR.16, Jan. 30, 1950, at 14–15. Robinson opines that a state may issue travel documents to, for example, refugees who “are there on a temporary basis only or even illegally”: Robinson, History, at 136. See also Weis, Travaux, at 266; and Grahl-Madsen, Commentary, at 128–129. UNHCR also clearly views it as permissible to issue a CTD before recognition of refugee status, as it has observed that “[s]ome states restrict the issue of CTDs to persons who have been formally determined by them to be Convention refugees”: UNHCR, “Travel Documents Follow-Up,” at [5].

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show that article 28 was drafted in this way precisely to deal with refugees who had just arrived clandestinely in the initial reception country.1027

Indeed, it was subsequently decided that any state party might rely on this discretionary authority to issue travel documents to a refugee in its territory who was faced with practical impediments to obtaining them from his or her country of usual residence,1028 as well as to refugee seamen who in many cases lack a sufficient territorial connection to any country to entitle them to a travel document.1029 Indeed, states are obliged to consider such requests in good faith,1030 though it is ultimately for each government to decide for 1027

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R v. Asfaw, [2008] UKHL 31 (UK HL May 21, 2008), at [100], per Lord Rodger (in dissent). He further noted that in the result “[r]efugees who do not have a passport are rescued from the need to resort [to] forgery and deception: they are to be issued with a Convention travel document which allows them to move from country to country”: ibid. at [99]. “Under the recommendation, if a person were in the United Kingdom, for example, he could, though lawfully resident elsewhere, apply to the United Kingdom for travel documents”: Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.41, Aug. 23, 1950, at 20. Indeed, it has been argued that “a refugee who is illegally present, or against whom an expulsion order has been issued, may . . . be provided with a [refugee] travel document in order to facilitate his travel”: Vedsted-Hansen, “Article 28,” at 1204. This would only be true if the “expulsion order” is being made for a reason other than the individual having been determined not to qualify as a Convention refugee. Otherwise this approach would run counter to both the text and the object and purpose of enabling states to grant CTDs “to any other refugee in their territory.” “It was . . . suggested that the time spent by seamen serving in a ship belonging to a given country should count towards the period of residence necessary to secure the right to travel documents. He realized that it might be difficult for many governments represented at the Conference to enter into a specific commitment of that kind; if so, perhaps the suggestion might be incorporated in a separate recommendation”: Statement of Mr. Mowat of the International Labor Organization, UN Doc. A/CONF.2/SR.12, July 9, 1951, at 5. When the ILO again raised this issue, it was determined that “the issue it raised was wider than that dealt with in article [28], and should perhaps form the subject of a special general article”: Statement of the President, Mr. Larsen of Denmark, UN Doc. A/ CONF.2/SR.17, July 12, 1951, at 16. In response to a French proposal, it was agreed that time spent aboard a state party’s vessel “would count” toward establishing lawful stay, but not if the seaman “had never set foot on [the state party’s] soil”: Statement of Mr. Hoare of the United Kingdom, UN Doc. A/CONF.2/SR.30, July 20, 1951, at 9–10. To enable refugee seamen to establish at least this minimum physical connection to the primary territory of the vessel’s flag state, Art. 11 as ultimately approved recommends “their temporary admission to [the flag state’s] territory particularly with a view to facilitating their establishment in another country”: Refugee Convention, at Art. 11. Yet “[b]y referring to the ‘sympathetic consideration’ which shall be given to the possible solutions of the precarious situation of refugee seamen, the provision contains the weakest category of obligations”: R. Bank, “Article 11,” in A. Zimmermann ed., The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary 853 (2011), at 857. See discussion of the duty of “good faith consideration” in Chapter 3.2.1 at note 258. As Grahl-Madsen writes, the duty under Art. 28 to “give sympathetic consideration” “means that the authorities of the country concerned are obliged not to reject out of hand, without considering the merits, or to make it their policy to reject such applications. On the other

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itself1031 whether it wishes to issue a CTD to a refugee not able to meet the lawful stay requirement1032 – a sensible accommodation given the duty described below1033 to readmit any refugee to whom a travel document has been issued. This broader discretionary authority under Art. 28(1) may today be of real value to states in a way not initially considered. Since the drafting of the Refugee

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hand, a State is not obliged to issue travel documents to persons covered by the provisions here considered. The obligation entered into is only to consider applications fairly and with understanding for the difficult situation of the persons involved”: Grahl-Madsen, Commentary, at 129. Based on the equally authoritative French-language text there is, however, an argument that the expectation arising from the duty to “give sympathetic consideration” in Art. 28 is less than that following from the use of the same Englishlanguage phrase elsewhere in the Convention. Notably, the French-language text of Art. 28 requires only that state parties “accorderont une attention particulière,” whereas the duty of sympathetic consideration is more emphatically framed in other French-language texts: Art. 11 (“examinera avec bienveillance”), Art. 17(3) (“envisageront avec bienveillance”), Art. 24(4) (“examineront avec bienveillance”), and para. 6(3) of the Schedule regulating renewal of CTDs (“examineront avec bienveillance”). Even the French-language version of “give sympathetic consideration” in Art. 30(2) (“accordera sa bienveillante attention”) seems to set a modestly higher bar (attention “bienveillante” rather than simply attention “particulière”). I am grateful to Ian Green (JD, Michigan) for this textual insight. “It would, however, be going too far to make such a thing obligatory, since to do so would involve States in the further obligation of re-admitting refugees, who might have spent only a few weeks in their territory, if they were unable to remain in the country to which they went”: Statement of Sir Leslie Brass of the United Kingdom, UN Doc. E/AC.32/SR.16, Jan. 30, 1950, at 12–13. He subsequently successfully proposed the use of the word “may” in the second sentence of Art. 28(1), making it clear that the authority is strictly permissive: ibid. at 15. A difficult issue is whether a state may exercise its discretion to issue a CTD to a refugee denied a CTD in his or her country of lawful stay on grounds of a threat to public order or national security (as is expressly authorized by Art. 28). In Grahl-Madsen’s view, the discretionary authority to issue a CTD to a refugee who is physically present, though not lawfully staying, in a country’s territory “applies if the country of lawful residence is not a party to the Refugee Convention or any of the other arrangements relating to travel documents for refugees . . . or if the country of lawful residence has made reservations to the effect that it will not issue travel documents to refugees . . . But what if the country of lawful residence has refused to issue travel documents by invoking ‘compelling reasons of national security or public order’? The question was, possibly by an oversight, not discussed by the Conference . . . [But] if a person is considered a ‘security risk’ or worse in one country, another State may consider him otherwise, and two different States do not necessarily have to see eye to eye on matters listed under the admittedly vague term ‘public order.’ Very often one State will not be able to know why a travel document has not been issued by another State . . . [Therefore] if a country chooses to issue a travel document under any of these provisions, it seems that it has every right to do so, and that the validity of the travel document will not be the least affected by the fact that the issue of a travel document has been refused for cogent reasons by the country of lawful residence”: Grahl-Madsen, Commentary, at 129–130. There is, however, no duty on the second state to issue a travel document in such circumstances. “It could hardly be the intention of the Conference to request one state to issue a travel document to a resident of another state if the latter refuses to issue the document for compelling reasons of national security or public order”: Robinson, History, at 137. See text at note 1144.

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Convention, states have adopted Art. 12(2) of the Civil and Political Covenant, which provides that “[e]veryone shall be free to leave any country, including his own.”1034 Recognizing that the right to leave one’s country is essentially meaningless without access to the documentation required for travel abroad, the Human Rights Committee has determined that Art. 12(2) entails a positive duty on the part of a state to issue its citizens with travel documents, unless there is valid justification to withhold same.1035 While the Committee’s relevant holdings to date have been addressed only to the rights of citizens, Schabas correctly observes that “[f]reedom to leave and emigrate is available to everyone, i.e. to nationals and non-nationals alike, and is not conditioned on lawful residency within the territory of a State Party.”1036 It thus follows logically that a state in which a refugee is present (even if not lawfully staying there) must find some means by which to enable him or her to travel beyond its borders.1037 To this end, the discretionary authority under Art. 28(1) of the Refugee Convention to issue CTDs to any refugee physically present on a state party’s territory1038 affords a useful means by which to implement duties under Art. 12(2) of the Civil and Political Covenant in relation to any refugee.1039 As this flexibility demonstrates, the issuance of a CTD is conceived in purely functional terms.1040 It does not entitle the holder to the diplomatic 1034

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In line with the philosophy underlying Art. 28 of the Refugee Convention (see text at note 1016), the Civil and Political Covenant’s “[f]reedom to leave the territory of a State may not be made dependent on any specific purpose or on the period of time the individual chooses to stay outside the country”: Joseph and Castan, ICCPR, at 399. “Since international travel usually requires appropriate documents, in particular a passport, the right to leave a country must include the right to obtain the necessary travel documents”: UN Human Rights Committee, “General Comment No. 27: Freedom of Movement (Article 12),” UN Doc. CCPR/C/21/Rev.1/Add.9, Nov. 2, 1999, at [9]. Schabas, Nowak’s CCPR Commentary, at 310. As Zieck observes, “[t]he ICCPR implies that departure requires the issue of a travel document, and the 1951 Convention instead focuses on the issuance of a travel document”: Zieck, “Freedom of Movement,” at 97. See text at note 1020. “[T]he denial of a CTD, and consequently travel, may constitute a violation of ICCPR article 12(2) if no other travel document is issued”: Zieck, “Freedom of Movement,” at 100. See also Vedsted-Hansen, “Article 28,” at 1201 (“[T]he fundamental right to leave the country would not be respected if refugees were not entitled to such travel documents as alternatives to a national passport”). This more general duty to facilitate international movement may, however, be restricted for a broader range of concerns than can be invoked in relation to refugees lawfully staying in a state party to the Refugee Convention. National security and public order concerns need not rise to the level of “compelling” reasons for restriction, and other considerations – “public health or morals or the rights and freedoms of others” – may also be invoked to deny the right to leave a country. See text at note 1088 ff. regarding the scope of permissible limits on the duty to issue refugees with a CTD under Art. 28(1) of the Refugee Convention. The UN High Commissioner for Refugees “emphasized the great importance of travel documents both to refugees and to States. Even countries of resettlement were in favour of travel documents”: Statement of Mr. van Heuven Goedhart of UNHCR, UN Doc. A/ CONF.2/SR.18, July 12, 1951, at 14.

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protection of the issuing state, though “this does not preclude States from exercising various forms of protective endeavours according to other international norms . . . or based on the consent of the other State involved.”1041 More controversially, the travel document does not amount to documentation of refugee status as such.1042 State practice, however, has often been to “recognize the Convention Travel Document not only as a document on which a visa may be given but also as evidence of the holder’s refugee status.”1043 At one level, this practice bespeaks a liberal preparedness to defer to the judgement of a fellow state party’s interpretation of entitlement to protection. Moreover, some support for this view can be garnered from Art. 27 of the Convention, which requires states to issue identity papers – which are intended to be treated as at least provisional evidence of refugee status1044 – to “any refugee in their territory who does not possess a valid travel document [emphasis added].” If the CTD were not understood to be evidence of refugee status, why would a person holding a travel document not also be entitled to receive identity papers? A plausible answer is that because identity papers are intended only to enable an individual to claim the benefits of refugee status inside the asylum state,1045 they are of little net value to the holder of a CTD. This is because there is little practical likelihood that a given government would issue an individual with a CTD (or grant entry on that basis), yet treat him or her in other respects as a non-refugee. In truth, however, the drafters’ decision not to require the issuance of identity documents to refugees already holding a travel document seems really to have been predicated on expediency. At the time of the Convention’s drafting there were already many refugees resident in state parties who held one of the 1041

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Vedsted-Hansen, “Article 28,” at 1212. The primary rationale for the rule (“The issue of the document does not in any way entitle the holder to the protection of the diplomatic or consular authorities of the country of issue, and does not confer on these authorities a right of protection”: Refugee Convention, at Schedule, [16]), imported from the London Agreement, was “that the Contracting Parties wished to avoid disputes over protection”: Statement of Mr. Robinson of Israel, UN Doc. E/AC.32/SR.24, Feb. 3, 1950, at 5. This goal leads Weis, in line with Vedsted-Hansen’s position, to conclude that para. 16 “does not preclude the State which has issued the travel document [from granting] such protection to a refugee, provided the State vis à vis which this protection is to be exercised admits such protection”: Weis, Travaux, at 267. A somewhat more aggressive posture was adopted by counsel for the UNHCR in “Written Submission on Behalf of the Intervener in The Queen v. Secretary of State for Foreign and Commonwealth Affairs, Doc. C1/2006/1064, July 12, 2006. In addressing the entitlement of the UK to intervene on behalf of two refugees to whom it had issued CTDs being held in custody by the United States, the UNHCR took the view that “[t]here is also some support in principle and practice for the exercise of diplomatic protection on behalf of refugee non-nationals”: ibid. at [58]. “Neither the issue of the document nor the entries made thereon determine or affect the status of the holder, particularly as regards nationality”: Refugee Convention, at Schedule, [15]. UNHCR, “Note on Travel Documents for Refugees,” UN Doc. EC/SCP/10, Aug. 30, 1978 (UNHCR, “Travel Documents”), at [23]. See Chapter 4.9 at note 2642. 1045 Ibid. at note 2647.

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earlier refugee travel documents – which were specifically designed to serve both as a form of domestic identification and to facilitate international travel1046 – to whom states did not wish to be obliged to issue new documentation.1047 Art. 27’s exclusion of refugees holding a travel document from the beneficiary class for identity paper purposes was intended essentially to promote administrative simplicity in circumstances understood not to pose a risk to refugees. This explanation has the advantage of avoiding a genuine hardship to a segment of the refugee population clearly intended to benefit from access to the CTD, namely those recent arrivals who wish to seek protection in a state other than that in which they first arrived.1048 By seeing the travel document only as a means of facilitating international movement (rather than as a means of certifying Convention refugee status), the intended flexibility of the travel document system is safeguarded. This purely pragmatic position is in line with the views advocated by Grahl-Madsen: The travel document is issued for the purpose of travelling outside the issuing country. It is not designed to be a proof of refugee status or any other status, and it is not at all certain that the holder of a travel document at any given time is a refugee according to the definition in Article 1 of the Refugee Convention. It is noteworthy that in contrast with the London travel document [of 1946], which sets out that the holder “is the concern of the Intergovernmental Committee of Refugees,” the Convention travel document contains no confirmation of the holder’s eligibility under the Convention or the Statute of the High Commissioner’s Office. If some authority . . . wants to ascertain whether a person is a refugee according to some relevant definition, that authority would be well advised not to make its decision solely on the basis of the travel document presented to it.1049 1046 1047

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Ibid. at notes 2660–2661. Indeed, the drafters were at one point inclined to decide that the CTD should be issued only in French and the issuing state’s language “in order to use up the stocks of travel documents already printed in French”: Statement of Mr. Herment of Belgium, UN Doc. E/AC.32/SR.39, Aug. 21, 1950, at 5. Even the representative of the IRO argued against including a second mandatory language on the CTD, since “it would be necessary to print new [CTDs], which would involve waste of time and expenditure”: Statement of Mr. Weis of the IRO, ibid. at 6. The solution – insisting that use of either French or English, in addition to the language of the issuing state, would be adequate – was in part fashioned in order to allow “all stocks [to be] used”: Statement of Mr. Juvigny of France, ibid. at 7. As this exchange makes clear, what should arguably have been a principled decision was, in fact, driven by a determination to avoid a short-term administrative concern. See text at note 1023. Grahl-Madsen, Commentary, at 160. It is noteworthy that the text of Art. 28 as proposed by the Secretary-General did not expressly define the purpose to be served by a CTD: Secretary-General, “Memorandum,” at 41. The present language of Art. 28, which makes clear that travel documents are issued “for the purpose of travel outside [the issuing state’s] territory,” was inserted on the motion of the United Kingdom: “United Kingdom: Draft Proposal for Article [28],” UN Doc. E/AC.32/L.17, Jan. 30, 1950, at 1.

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A CTD may not be denied on the grounds that the lawfully staying refugee seeking it already possesses, or could secure, an alternative form of travel documentation from the host or another country. While some governments would have preferred each country to issue refugees special travel documents of purely national authority,1050 most of the drafters shared the view of the Chairman of the Ad Hoc Committee that “even if all Governments had adopted some such practice, it would be an advantage to adopt [a] unified system.”1051 The establishment of a single, uniform system of refugee travel documents was thought important to avoid the risk of non-recognition of purely national documents by destination and transit states.1052 The fundamental goal of the CTD system was to provide refugees with a more broadly based alternative to a patchwork of nationally issued travel documents which “would prevent the bearer being asked to produce special credentials during the journey.”1053 Moreover, There was no need to stress the practical advantages which would result from the standardization of travel documents for refugees. The work of passport control and immigration officers would be considerably simplified if all such documents were based on a single model.1054

In the interests of “achieving uniformity,”1055 the drafters adopted a very detailed Schedule setting out binding formal1056 and operational details of the 1050

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“Chile . . . already has a special passport which is issued not only to refugees, but to any other foreigner not in possession of the usual documents. This passport is issued for the specific purpose of facilitating travel . . . There would in consequence be no advantage in replacing our present legislation by the provisions of the proposed Convention”: United Nations, “Compilation of Comments,” at 51–52. Statement of the Chairman, Mr. Larsen of Denmark, UN Doc. E/AC.32/SR.39, Aug. 21, 1950, at 4. See also Statement of Mr. Henkin of the United States, ibid., who “hoped that countries like Chile would accept the provisions of article [28], both for the reasons given by the Chairman and because he doubted whether the kind of document provided by such countries contained any provisions permitting the holder to re-enter the country.” Weis succinctly concludes that “if the applicant is a refugee . . . the Contracting State must issue him or her with a Convention travel document and not with any other document such as an aliens passport”: Weis, Travaux, at 265. “The Nansen certificate and the travel document established pursuant to the London Agreement are completely satisfactory, while the other documents [‘the various travel documents issued by the administrative authorities of certain countries’] are not accepted by many countries”: Secretary-General, “Memorandum,” at 42. Statement of Mr. Rain of France, UN Doc. E/AC.32/SR.16, Jan. 30, 1950, at 10. UNHCR reports that this goal has been effectively attained, since the CTD “is accepted for visa purposes, not only by States parties to the 1951 Convention and/or the 1967 Protocol, but in practice by all countries to which refugees wish to travel”: UNHCR, “Travel Documents,” at [11]. Statement of Sir Leslie Brass of the United Kingdom, UN Doc. E/AC.32/SR.16, Jan. 30, 1950, at 7. Ibid. at 3. It has been argued that “recent developments in the technical design and format of passports” may make it difficult for states to comply with the requirement “that the travel document referred to in Art. 28 of the 1951 Convention shall be ‘similar to the specimen’

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CTD system, which all agreed to respect.1057 Most critically, they established a system of reciprocal recognition of travel documents, under which all state parties commit themselves to honor a CTD issued by any other state party1058 (including pursuant to its expanded discretionary authority).1059 Indeed, the

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annexed to the Schedule”: Vedsted-Hansen, “Article 28,” at 1213. This appraisal may give insufficient attention to the requirement that the CTD need only be “similar” (not identical) to the annexed specimen. See UNHCR Executive Committee Conclusion No. 114 (2017), at [3], encouraging states “to introduce machine-readable Convention Travel Documents for refugees . . . lawfully staying in their territory,” and drawing attention to ICAO and UNHCR, “Guide for Issuing Machine Readable Convention Travel Documents for Refugees and Stateless Persons,” Feb. 2017. The Schedule is incorporated by reference in Art. 28. It was essentially drawn from the London Agreement: “United Kingdom: Draft Proposal for Article [28],” UN Doc. E/AC.32/ L.17, Jan. 30, 1950. “The 1946 Agreement had been signed and put into effect by a large number of countries. It therefore seemed that its provisions might be acceptable to the future contracting parties of the new convention”: Statement of Sir Leslie Brass of the United Kingdom, UN Doc. E/AC.32/SR.16, Jan. 30, 1950, at 4. On the suggestion of the French representative, these details were moved to a Schedule, as “[t]o include [them] in the convention itself would be to destroy its harmony, for then it would contain, side by side with articles setting forth the principles of administrative solutions, one single article containing very detailed rules to cover one specific point”: Statement of Mr. Rain of France, ibid. at 5. Once issued, all state parties are bound to “recognize the validity” of any CTD issued “in accordance with the provisions of article 28 of this Convention”: Refugee Convention, at Schedule, [7]. The French draft of Art. 28 had proposed a more explicit reference in the body of the primary article itself, specifically that “[e]ach of the High Contracting Parties shall recognize the documents issued by the other High Contracting Parties”: France, “Draft Convention,” at 8. Similarly, Israel pressed for formal incorporation of the duty of mutual recognition in the text of Art. 28: Statement of Mr. Robinson of Israel, UN Doc. E/ AC.32/SR.39, Aug. 21, 1950, at 13. But while ultimately included in the Schedule, there seems to have been a general view that the obligation of mutual recognition was inherent in the system established. The representative of the International Refugee Organization, for example, “thought that, though from a purely legal point of view, paragraph 7 was perhaps unnecessary, it might have some psychological value in stimulating recognition of travel documents issued under the present and previous agreements”: Statement of Mr. Weis of the IRO, ibid. at 13. “[O]ther parties cannot question the right of a Contracting State to issue a document if this is done under the powers granted to it by Art. 28, even if, in their estimation, the person is not a ‘refugee’ in the sense of the Convention, so long as the document was issued legally”: Robinson, History, at 143. This deference to the decision of the issuing state to issue a CTD to refugees who did not meet the “lawful stay” requirement was possible by virtue of the correlative duty of the issuing state to receive back the holder of any CTD issued by it during the validity of that document: see text at note 1144 ff. See also Statement of Mr. Larsen of Denmark, UN Doc. E/AC.32/SR.16, Jan. 30, 1950, at 13: “All travel documents . . . would be subject to the provisions of paragraph 13 of the schedule . . . That provided the country in which the refugee wished to travel with a safeguard that would apply in all cases: the country issuing a travel document to a refugee would be responsible for him and would be obliged to readmit him, whatever his legal status in that country, if he was not accepted elsewhere.” Grahl-Madsen takes a somewhat more cautious approach to this issue, basing his opinion that all states should respect CTDs issued to refugees broadly conceived on Recommendation E of the Final

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drafters even agreed that state parties to the Refugee Convention would treat all refugee travel documents issued under any of the predecessor treaties as though they had been issued under the terms of the Refugee Convention1060 – including documents issued by a state that might choose not to accede to the Refugee Convention.1061 There can therefore be little doubt about the depth of the

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Conference that adopted the Refugee Convention, in which the signatories express their hope that the Convention “will have value as an example exceeding its contractual scope.” He observes that “[t]he recommendation, which was unanimously adopted by the Conference, is not legally binding on any government; nevertheless it may be said to express the spirit of the Convention, and if governments do issue Convention travel documents to certain extra-Convention refugees, they may claim to be acting in keeping with that spirit . . . On the other hand, whereas Paragraph 7 of the Schedule must be interpreted so broadly as to include all travel documents issued in accordance with the Convention or the Schedule, and not only those issued pursuant to the express provisions in Article 28, it can hardly be stretched so far as to compel governments to recognize the validity of Convention travel documents issued to refugees who are clearly outside the scope of Article 1 of the Convention. However, if the issue of Convention travel documents to extra-Convention refugees is not against international law, it is not either based on international law, but is outside the scope of international law. The recognition of such travel documents therefore comes within the sphere of comity”: Grahl-Madsen, Commentary, at 124–125. In his more detailed analysis of para. 7 of the Schedule, however, Grahl-Madsen agrees with the dominant view set out above that “[t]he conclusion seems inevitably to be that the Contracting States are obliged to recognize on an equal footing travel documents issued under any of the cited provisions [Art. 28, Art. 11, or para. 6(3)]”: ibid. at 145. Refugee Convention, at Art. 28(2). “[P]aragraph 2 . . . provided for recognition of the validity of travel documents which would continue to be issued by countries signatories of previous conventions which were not parties to the new convention: that was a provision of a lasting nature”: Statement of Mr. Cuvelier of Belgium, UN Doc. E/AC.32/SR.16, Jan. 30, 1950, at 9. There was, however, some confusion on this point at the Conference of Plenipotentiaries, where comments made by the French representative suggested a duty to recognize travel documents issued under prior treaties only to the extent that the state party to the 1951 Convention was also a party to the relevant earlier treaty, or where the issuing state was also a party to the 1951 Convention: Statement of Mr. Rochefort of France, UN Doc. A/ CONF.2/SR.17, July 12, 1951, at 14. On the other hand, the British representative was emphatic that “[t]he meaning of paragraph 2 was surely perfectly clear. It stated that parties to the Convention undertook to recognize all travel documents issued under previous agreements by the parties to those agreements”: Statement of Mr. Hoare of the United Kingdom, ibid. at 13. The President agreed, observing that “at least for some time to come, certain States parties to the previous agreements would not be parties to the present Convention . . . He was ready to admit that from a strictly juridical point of view it might be somewhat unorthodox to allow a refugee to enter with a travel document in which reference was made to an international instrument to which the State of entry was not a party. But he believed that on the whole the advantages of paragraph 2 outweighed its slight legal disadvantages”: Statement of the President, Mr. Larsen of Denmark, ibid. at 15. On the basis of this interpretation, paragraph 2 was immediately adopted on a 23–1 vote: ibid. See also Robinson, History, at 137–138: “[P]ara. 2 is a ‘one-way’ provision, imposing an obligation on the parties to this Convention to recognize travel documents issued by non-parties thereto, while the latter are not bound to do the same in regard to

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commitment to “replac[ing] all previous instruments, the diversity and vaguely defined field of application of which merely served to confuse the issue.”1062 While, as previously described, any state party may choose to issue a CTD to a refugee simply physically present in its territory,1063 the Convention sets a presumptive duty1064 on the state with which a given refugee has the strongest territorial connection – namely, the country of his or her lawful stay – to issue a travel document.1065 The language of Art. 28(1), providing that a state party “shall issue [a CTD] to refugees lawfully staying in their territory [emphasis added],” was adopted in preference to a proposal from Yugoslavia to leave open the question of which state, if any, was expected to issue a CTD to a particular refugee.1066 As the British representative to the Conference of Plenipotentiaries pointed out, this territorially based principle is critical to

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signatories of this Convention, not parties to the earlier agreements.” In point of fact, seven state parties to the 1946 London Agreement did not ratify the Refugee Convention until at least the 1960s: Brazil (1960), Chile (1972), Dominican Republic (1978), Greece (1960), Liberia (1964), South Africa (1996), and Venezuela (1986: Protocol only). Moreover, one party to the London Agreement, India, is still not a party to either the Refugee Convention or Protocol, raising the interesting question of whether India could today still issue a travel document under the London Agreement which state parties to the Refugee Convention would be obliged to recognize. (As among state parties to the Refugee Convention, that treaty replaces the London Agreement: Refugee Convention, at Art. 37.) See also Recommendation A of the Final Act of the Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, 189 UNTS 37, in which governments participating in earlier refugee travel document systems were urged “to continue to issue or to recognize such travel documents, and to extend the issue of such documents to refugees as defined in article 1 of the Convention . . . or to recognize the travel documents so issued to such persons.” Statement of Mr. Rain of France, UN Doc. E/AC.32/SR.16, Jan. 30, 1950, at 5. See text at note 1024. “[A] Contracting State may not refuse to issue a travel document to a refugee if, for example, it regards the proposed travel as inappropriate . . . [A] refugee is not required to ‘justify’ the proposed travel in order to receive a travel document to which he is entitled ‘for travel purposes’”: UNHCR, “Travel Documents,” at [14]. At the Conference of Plenipotentiaries, the French representative voiced his concern that para. 11 of the Schedule – which then granted “the power” to issue a CTD to the country of lawful residence – might be read to preclude other countries from issuing a CTD to a refugee simply physically present in their territory. He therefore proposed that para. 11 be amended in a way that left the broader discretionary authority of other state parties intact, but which assigned “the obligation” to issue a CTD to the state of lawful residence: Statement of Mr. Rochefort of France, UN Doc. A/CONF.2/SR.32, July 24, 1951, at 9. Because Venezuela felt that the term “obligation” might unduly tie the hands of the state of lawful stay, para. 11 was amended both to reference the scope of the duty under the text of Art. 28 itself, and to refer to the state of lawful stay’s “responsibility,” rather than to its obligation: Statements of Mr. Montoya of Venezuela, Mr. Rochefort of France, and Mr. Hoare of the United Kingdom, ibid. at 9–12. The Belgian representative “was unable to accept the Yugoslav amendment; the substitution of the words ‘may issue’ for the words ‘shall issue’ would deprive paragraph 1 of all force”: Statement of Mr. Herment of Belgium, UN Doc. A/CONF.2/SR.12, July 9, 1951, at 7.

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ensure that, at some point, every refugee can hold one state party accountable to issue him or her with a travel document.1067 The locus of responsibility automatically changes if and when a refugee may be said to be lawfully staying in a new country.1068 Both Japan’s system of requiring the surrender of a foreign-issued CTD to a refugee residing in its territory as a condition of issuing its own CTD to that refugee1069 and the multilateral European system for transfer of responsibility to issue a refugee travel document1070 helpfully ensure the intended systemic coherence. The state which issues a CTD is allowed substantial administrative autonomy1071 – though it must, of course, not just promise access to a travel document but actually facilitate access to the CTD. Serbia is thus in breach of its 1067

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In response to a proposal that would have amended Art. 28 to provide simply for a general right of state parties to issue a CTD to any refugee, including those outside its borders, but which would not have required any particular state to take responsibility for the issuance of a CTD to any given refugee, the British representative appropriately insisted “that adoption of that suggestion would weaken article [28] by making it no longer the primary obligation of the Contracting State in whose territory the refugee was resident to issue travel documents”: Statement of Mr. Hoare of the United Kingdom, ibid. at 8. Refugee Convention, at Schedule, [11]. Detailed rules for ascertaining the time at which this transfer of responsibility occurs may be agreed between states, e.g. pursuant to the European Agreement on Transfer of Responsibility for Refugees, at Art. 2. In proposing the amendment of para. 11, the American representative suggested that “[s]ome such phrase as ‘becomes transferred’ should be employed [in contrast to the language of the draft then under discussion, ‘will be transferred’] to show that the transfer was automatic and required no action on the part of anyone”: Statement of Mr. Henkin of the United States, UN Doc. E/ AC.32/SR.39, Aug. 21, 1950, at 13. The automatic nature of the transfer contemplated in the revised text of para. 11 was confirmed by the Belgian representative to the Conference of Plenipotentiaries who, in response to a Venezuelan proposal to delete the word “désormais” from the French-language version of para. 11 of the Schedule, noted that “[t]he retention of the word ‘désormais’ was necessary so that there would be a transfer of responsibility under the terms of paragraph 11”: Statement of Mr. Herment of Belgium, UN Doc. A/CONF.2/ SR.33, July 24, 1951, at 6. It was hoped that having a single state designated as the holder of the responsibility to issue a CTD to any given refugee would “prevent the issue of several travel documents to one and the same refugee by different authorities of different countries”: Robinson, History, at 144. Yet this reasoning was not entirely sound since any state remains entitled (though not required) to issue a CTD to a refugee in its territory, thereby providing a means by which a single refugee could obtain more than one travel document. It is moreover ironic that the Conference of Plenipotentiaries elected to omit one requirement for issuance of a CTD approved by the Ad Hoc Committee, namely that the applicant “not possess a valid travel document issued pursuant to article [28]”: Ad Hoc Committee, “Second Session Report,” at 23. This omission was the result of a Belgian amendment (UN Doc. A/ CONF.2/61). The only delegate to speak to the matter supported the omission on the rather simplistic basis that “there would obviously be no need to issue a document if the refugee already had one”: Statement of Mr. Arff of Norway, UN Doc. A/CONF/2/SR.17, July 12, 1951, at 5. See text at note 1008. 1070 See text at note 1009. For an extremely detailed analysis of the provisions of the various paragraphs of the Schedule, see Grahl-Madsen, Commentary, at 132–161.

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duties, having failed to enact the regulations needed to give effect to refugees’ codified right to receive the travel document.1072 Nor is it open to Nepal effectively to undermine the intended flexibility of the refugee travel document by disallowing its use for more than a single trip abroad in a given year.1073 While the CTD issued must conform to the specimen travel document included in the Convention,1074 it is for the issuing country to decide which refugee children are to be included on the passport of a parental refugee or other adult refugee1075 and whether it is valid for a period of one or two years.1076 This means that the American practice of issuing CTDs with a validity of only one year is in compliance with Art. 28, despite the fact that the practical utility of the travel document is thereby often compromised.1077 The British and Irish practice1078 of issuing refugee travel documents with a validity of as much as ten years is, on the other hand, technically beyond what the Schedule allows.1079 While the savings clause of Art. 51080 might be argued to authorize the granting to refugees of a more durable travel document under domestic law, the fact that the CTD imposes a presumptive duty of admission on other state parties1081 might suggest otherwise.1082 The Turkish decision routinely to issue refugee travel documents 1072 1074 1075

1076

1077 1079

1080 1082

See text at notes 986–987. 1073 See text at note 1005. Refugee Convention, at Schedule, [1]. Refugee Convention, at Schedule, [2]. “[I]t would be wise for the Conference to take a liberal attitude in the matter. The families of refugees were often scattered, and it might be that a child would have to travel in the company of a grandparent or a relative”: Statement of Mr. Hoeg of Denmark, UN Doc. A/CONF.2/SR.17, July 12, 1951, at 17. Thus, “[p]ara. 2 leaves it to individual countries to define the word ‘children,’ i.e. to prescribe the age at which a person may obtain his own document and below which he may be included in the travel document of another, adult refugee”: Robinson, History, at 141. Refugee Convention, at Schedule, [5]. An effort was made to authorize CTDs with a validity of less than one year: Statements of Mr. Herment of Belgium and Mr. Makiedo of Yugoslavia, UN Doc. A/CONF.2/SR.18, July 12, 1951, at 4. This proposal was rejected on a 15–4 (6 abstentions) vote, ibid. at 5, though it was conceded that an issuing state might achieve much the same end by invoking its authority under para. 13(3) “in exceptional cases, or in cases where the refugee’s stay is authorized for a specific period . . . to limit the period during which the refugee may return [to the issuing country] to a period of not less than three months”: Statement of Mr. Zutter of Switzerland, ibid. at 4. See text at note 997. 1078 See text at note 999. The UNHCR has creatively (if perhaps not entirely convincingly) avoided this issue by suggesting that the right of states to renew a CTD can be invoked to justify an initial validity of between “two and ten years,” and further arguing that as a practical matter improved security features would justify a minimum five year validity: UNHCR, “Comments on the European Commission Proposal for a Qualification Regulation – COM (2016) 466” (2017), at 35. See Chapter 1.4.5. 1081 See text at note 1144. The prolonged validity might be thought, for example, to show willful blindness to the possibility of intervening cessation of status. On the other hand, given the authority of the issuing state under [6] of the Schedule to renew or extend the validity of the travel

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with a validity of less than one year1083 is, however, clearly impermissible given the express language of the Schedule. The issuing government also determines the scope of its geographical validity, though the Schedule encourages state parties to make the travel document “valid for the largest possible number of countries.”1084 As such, the Convention is not breached by the practice of most European states1085 of prohibiting travel to the refugee’s country of origin. And while an effort was made to require the issuing government to renew a CTD, at least if the refugee had no state of lawful stay at the date of its expiration,1086 para. 6(3) of the Schedule as finally adopted merely directs state parties to “give sympathetic consideration” to renewing, extending, or replacing travel documents in the case of persons unable to secure them from the country in which they are lawfully residing – in other words, a duty to consider renewal in good faith.1087 A particularly important form of authority reposed in the territorial state is the right to withhold travel documents from a refugee. The Conference of Plenipotentiaries was clear that not every refugee lawfully staying in a state party has an absolute right to be issued a travel document. To the contrary, it was felt that a balance should be struck between the usual duty of the state of lawful stay to issue a travel document and the fact that there were some “cases in which Contracting

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document the argument against the validity of a CTD valid for longer than [5] allows may be thought to be in line with the general approach of Art. 28. See text at note 999. Refugee Convention, at Schedule, [4]. “[T]he vast majority of States . . . endorse the CTD as valid for all countries with the exception of the country of origin. A few States, however, restrict the geographical validity of CTDs to certain named countries, usually for political or security reasons”: UNHCR, “Travel Documents Follow-Up,” at [8]. See text at note 996. The American representative to the Ad Hoc Committee “was also afraid that situations might arise in which one country was not willing to extend any longer the validity of a travel document issued to a refugee, while the country of his new residence was not yet prepared to issue him one for the first time. To prevent the refugee from thus falling between the stools, he proposed the addition to paragraph 6(1) of the following words: ‘No travel document shall be cancelled or its prolongation refused so long as a refugee should not have received a new one from the country of his new residence’”: Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.39, Aug. 21, 1950, at 10. Refugee Convention, at Schedule, [6(3)]. See discussion of the duty of process inherent in the “give sympathetic consideration” requirement at note 1030. The British representative argued “that the United States proposal went too far . . . If the country of his first residence was forced to wait until a document had been issued by the country of new residence before cancelling its own document, it would probably never be released from its obligations”: Statement of Sir Leslie Brass of the United Kingdom, UN Doc. E/AC.32/ SR.39, Aug. 21, 1950, at 10–11. Given the limited purport of the duty to “give sympathetic consideration” UNHCR overstates the duty when it suggests that “[t]he State which first issued the CTD retains responsibility for the refugee and for the renewal of the travel documents until such time as this responsibility is effectively transferred to another State”: UNHCR, “Travel Documents Follow-Up,” at [13].

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States could legitimately refuse to do so.”1088 As the High Commissioner for Refugees advised, The issue of travel documents was one of the most essential aspects of the treatment accorded to refugees . . . However, he realized the cogency of the objections raised by certain representatives concerning the mandatory obligation by the first sentence of article [28]. They might be disposed of by substituting the words “undertakes to issue to refugees” for the words “shall issue, on request, to a refugee.” The principle would then be more clearly stated, and the acquisition of travel documents would not be defined as a right belonging to the individual . . . [But] [h]e earnestly appealed to representatives to refrain from weakening the article as a whole.1089

The approach adopted by the Conference closely parallels this recommendation. The mandatory language contained in the Ad Hoc Committee’s draft, “shall issue,” was retained, though without the additional phrase approved by the Ad Hoc Committee, “on request.”1090 More fundamentally, the Conference added an express caveat to Art. 28(1), the effect of which is to set a legal duty on the country of lawful stay to issue a CTD “unless compelling reasons of national security or public order otherwise require.” There was a great deal of discussion about this qualifying phrase. While Austria argued that there was no need for the Convention to address the circumstances in which a CTD might be withheld,1091 the general preference was to be clear about the grounds for non-issuance in order to avoid “a risk of lowering the status of refugees vis à vis national authorities.”1092 The British representative successfully persuaded the Conference that “[i]f modifications were to be introduced . . . their proper place was in article [28], where the circumstances in which refugees had a right to acquire travel documents were broadly defined.”1093 This approach was adopted. 1088

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Statement of the President, Mr. Larsen of Denmark, UN Doc. A/CONF.2/SR.12, July 9, 1951, at 8. Statement of Mr. van Heuven Goedhart of UNHCR, ibid. at 9. In the version of Art. 28 originally presented to the Conference of Plenipotentiaries, Art. 28 read, “The Contracting States shall issue, on request . . . a travel document”: “Texts of the Draft Convention and the Draft Protocol to be Considered by the Conference,” UN Doc. A/CONF.2/1, Mar. 12, 1951, at 15. “[E]ach country had specific legislation or regulations governing the issue of passports, which stipulated, no doubt, the cases in which issue could be refused. Such regulations presumably extended to the issue of passports to refugees. No provision in the Convention could impair that sovereign right of States. He therefore believed that article [28] should prove acceptable as it stood”: Statement of Mr. Fritzer of Austria, UN Doc. A/ CONF.2/SR.12, July 9, 1951, at 11. Statement of Mr. Hoare of the United Kingdom, UN Doc. A/CONF.2/SR.17, July 12, 1951, at 8. Statement of Mr. Hoare of the United Kingdom, UN Doc. A/CONF.2/SR.12, July 9, 1951, at 13.

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One view was that states should be entitled to withhold issuance of a refugee travel document only on the same grounds that would justify denial of a passport to a citizen.1094 Under an amendment presented jointly by Australia and Canada, states might “as an exceptional measure” elect to withhold issue of a travel document from a refugee “if the circumstances are such that the issue of a passport would be withheld from a national of that state.”1095 As the Australian delegate observed, The issue of travel documents was a matter for the discretion of each government. There might be cases where a Contracting State, for good reason, refused a passport to one of its own nationals to travel for a certain purpose. It would be anomalous in the extreme if a refugee wishing to travel for a similar purpose was entitled to be issued with a travel document.1096

Canada similarly insisted that the assimilation of refugees to nationals for purposes of travel document eligibility was a clear matter of basic fairness: Passports were issued in pursuance of the royal prerogative, and no citizen had an inalienable right to receive a passport . . . It was obvious that refugees could not be given preferential treatment over nationals in that respect.1097

This approach was not adopted, based on opposition rooted in both liberal and restrictionist thinking. On the one hand, it was argued that reliance on the same criteria applied to the issuance of a passport to citizens would pose a risk to refugees. The Belgian representative made the case that refugees “could not be expected to conform to the same conditions as nationals,”1098 and should therefore be denied travel documents only for reasons of “national security or public order.”1099 He insisted that this approach was more in the interests of refugees than was the joint amendment [proposed by Australia and Canada]. The Norwegian representative had 1094

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“The general obligation laid on States would be interpreted as being to respect a right to which the individual refugee was entitled, and refugees might thus be in a position to claim something which was denied to nationals”: Statement of Mr. Shaw of Australia, ibid. at 10. See also Statement of Mr. Zutter of Switzerland, ibid. UN Doc. A/CONF.2/66. This approach received the grudging support of the representative of the United Kingdom who conceded that “there would be circumstances in which it would be desirable to allow states a certain amount of latitude. The joint Australian/ Canadian amendment was preferable . . . inasmuch as it provided for the application to the issue of travel documents to refugees of the same criteria as were applied in the issue of passports”: Statement of Mr. Hoare of the United Kingdom, UN Doc. A/CONF.2/ SR.17, July 12, 1951, at 5. See also Statement of Mr. Hoeg of Denmark, ibid. Statement of Mr. Shaw of Australia, UN Doc. A/CONF.2/SR.12, July 9, 1951, at 7. Statement of Mr. Chance of Canada, ibid. Statement of Mr. Herment of Belgium, ibid. 1099 UN Doc. A/CONF.2/61.

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mentioned the case of a government refusing to issue passports to persons who had not paid their taxes. Such a case was one of the “circumstances” in which a State withheld the issue of passports to its own nationals and, if the joint amendment was adopted, it would be possible to invoke a similar reason for denying the issue of travel documents to a refugee. In the same way, if the national of a State had not done his military service, his application for a passport was usually refused. Logically, therefore, such an application should also be refused if made by a refugee in the same position. Hence it was clear that the text of the joint amendment submitted by the delegations of Australia and Canada allowed of a very wide interpretation. The Belgian delegation therefore preferred its own text.1100

On the other hand, and perhaps more candidly, the case for the “national security or public order” test was made on the basis of a need to grant states more flexibility to deny travel documents to refugees on grounds not applicable to their own citizens.1101 France insisted that “circumstances might make it necessary for her to keep a check on the movements of refugees and aliens.”1102 To adopt the approach envisaged by the joint amendment proposed by Australia and Canada “would simply be tying the hands of the French government so far as the issue of travel documents was concerned.”1103 Indeed, France went so far as to claim that while “the fact that a French citizen [who] expressed extremist views did not preclude him from holding a passport . . . [i]t might, however, be necessary in certain cases to treat refugees differently.”1104 Even when this position was soundly denounced by the British representative as “tantamount to discrimination on the grounds of political opinion,”1105 the French government was not moved, insisting that if it were to grant a travel document to a refugee with extremist views, the refugee’s state of destination would likely deport him or her back to France.1106 The compromise which emerged reflects substantial deference to the French position. The text as adopted allows a CTD to be denied on public order or national security grounds, even if such concerns do not govern the issuance of a passport to citizens. But because Art. 28 allows a CTD to be denied to refugees only on these grounds, it follows that a travel document may not be 1100 1101

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Statement of Mr. Herment of Belgium, UN Doc. A/CONF.2/SR.17, July 12, 1951, at 6–7. The first state to propose this approach was Italy, which suggested that states retain the right, also expressed as “a purely exceptional measure,” to withhold travel documents from a refugee “suspected on reasonable grounds of engaging in illicit traffic”: UN Doc. A/CONF.2/56. Statement of Mr. Colemar of France, UN Doc. A/CONF.2/SR.12, July 9, 1951, at 6. Statement of Mr. Rochefort of France, UN Doc. A/CONF.2/SR.17, July 12, 1951, at 6. He concluded that “[t]he Belgian amendment was, therefore, the only one which the French delegation could support”: ibid. Statement of Mr. Rochefort of France, ibid. at 9. Statement of Mr. Hoare of the United Kingdom, ibid. at 9. Statement of Mr. Rochefort of France, ibid. at 9–10.

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refused to refugees for the sorts of reasons, e.g. insolvency, or failure to perform military service or to pay taxes, argued by the proponents of the “public order and national security” approach to be uniquely applicable to citizens.1107 As Weis concludes, There is . . . a difference between nationals and refugees in favour of the latter. While the issuance of a passport to a national is often a matter of discretion, the issue of a travel document is an obligation, unless compelling reasons of public security or public order justify a refusal. There is good reason for this distinction between nationals and refugees, since refugees may have to travel, for example, from the country of first asylum to a country of resettlement.1108

Hungary’s view that it can refuse to issue a CTD on the grounds of tax or customs liability1109 is therefore not in line with the requirements of Art. 28.1110 Much less does concern about risk to the host state’s national reputation suffice as the basis to refuse to issue a CTD – a ground for denial of travel documents that was recently proposed in Denmark.1111 Moreover, not any public order or national security reason is sufficient to deny a CTD. Responding to British concerns that these concepts could justify excessive restrictions,1112 states agreed to emphasize the exceptional nature of any refusal to 1107

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See text at note 1101 ff. “[C]ertain circumstances that might justify the refusal of a passport to a State’s own citizens, such as insolvency, failure to pay taxes or to carry out military service, would not be sufficient to constitute a threat against public order in the meaning of Art. 28, para. 1”: Vedsted-Hansen, “Article 28,” at 1207. See also Goodwin-Gill and McAdam, Refugee in International Law, at 516 (“[T]he words of this provision may well place the refugee in a better position with regard to the issue of travel documentation than the citizen of the State in which he or she resides”). Weis, Travaux, at 265. See also Grahl-Madsen, Commentary, at 127: “[I]t seems clear, on the basis of the firm statement of the Belgian representative, that the Belgian proposal would not justify the refusal of issuing a travel document in the cases enumerated by the Norwegian delegate, viz. ‘for reasons of insolvency, failure to pay taxes and so on.’” See text at note 984. Oddly, however, the UNHCR has suggested that national security or public order might be engaged in the case of a refugee “suspected of using the journey . . . for action . . . contrary to the customs or currency regulations”: UNHCR, “Amicus curiae of the United Nations High Commissioner for Refugees (UNHCR) on the interpretation and application of Article 25, Article 27 and Article 28 of the 1951 Convention Relating to the Status of Refugees,” Dec. 22, 2016, at [39]. Yet as a matter of even general human rights law, the UN Human Rights Committee has expressed its concern that “requiring persons intending to travel abroad to furnish Tax Clearance Certificates does in practice disproportionately restrict freedom of movement”: UN Human Rights Committee, “Concluding Observations on the Initial Report of Belize,” UN Doc. CCPR/C/BLZ/CO/1/Add.1, Nov. 1, 2018, at [7]. See text at note 995. UNHCR viewed “the refusal [to issue a CTD] on ground of ‘state reputation’ as arbitrary and as contravening the clear terms of the 1951 Convention”: UNHCR, “Observations on the proposed amendments to the Danish Aliens legislation,” Oct. 25, 2017, at [23]. “If the holding of extremist views was accepted as a valid ground for not issuing travel documents, certain States might take advantage of that facility in order to put obstacles in

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grant refugees a travel document,1113 and to authorize such refusal only in situations in which there are compelling reasons of national security or public order which require non-issuance of the travel document.1114 As Grahl-Madsen concludes, this means “that it is only in grave and exceptional circumstances that a Contracting State may refuse to issue a travel document to a refugee lawfully staying in its territory.”1115 The highly constrained nature of this authority thus calls into question the Norwegian refusal to issue a CTD to even a recognized refugee whose identity was thought to be in doubt.1116 Given both that identity was clearly considered sufficiently established to recognize refugee status in the first place and that, as noted by one Supreme Court judge reviewing the law, “Refugee Convention article 25 . . . entails an obligation for the authorities to assist the

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the way of legitimate travel on the part of a refugee, and that would be a marked deterioration in the status of refugee from the position obtaining under the London Agreement of 1946”: Statement of Mr. Hoare of the United Kingdom, UN Doc. A/CONF.2/SR.17, July 12, 1951, at 10. Under the Belgian draft, consideration of public order and national security concerns would have been a routine and intrinsic part of the decision about whether to issue a refugee travel document. “Subject to the requirements of national security or public order, the Contracting States shall issue to refugees [emphasis added]”: UN Doc. A/CONF.2/61. In contrast, the text as adopted makes clear that the starting point is the duty to issue the travel document, subject only to clear exceptions. “The Contracting States shall issue to refugees lawfully staying in their territory travel documents . . . unless compelling reasons of national security or public order otherwise require”: Refugee Convention, at Art. 28(1). The exceptional nature of this authority includes a temporal dimension. As the Belgian representative insisted, “the limiting clause . . . did not mean that the issue of travel documents to refugees would be categorically refused. It was merely intended to allow for the temporary discontinuance of the issue of such documents. That action would no longer be necessary once the consideration of national security or public order which had led States to suspend the issue of travel documents had ceased to hold”: Statement of Mr. Herment of Belgium, UN Doc. A/CONF.2/SR.17, July 12, 1951, at 5. “[T]he United Kingdom fully appreciated the French representative’s difficulties, and the need for doing something to meet his point. In order, however, to avoid any abuse of the formula finally adopted, he would suggest that the phrase, ‘Subject to the requirements of national security and public order’ in the Belgian amendment . . . should be replaced by the words ‘Except where imperative reasons of national security or public order otherwise require’”: Statement of Mr. Hoare of the United Kingdom, UN Doc. A/CONF.2/SR.17, July 12, 1951, at 11. “The word ‘imperative’ was changed [to] ‘compelling’ by the style committee without any reason being given, and it was clearly nobody’s intent that this change of words should imply a change of substance”: Grahl-Madsen, Commentary, at 128. As Robinson observes, “[t]he words ‘compelling reasons’ are to be understood as a restriction upon ‘reason of national security and public order,’ i.e. not every case which would ordinarily fall under the latter concept could be used to refuse a document, but only very serious cases”: Robinson, History, at 136. Grahl-Madsen, Commentary, at 128. UNHCR has more recently opined that “[t]he exception must be interpreted narrowly, and not every case which would ordinarily fall under the [national security or public order] concept would therefore justify a refusal of a travel document, but only reasons of a very serious character”: UNHCR, “Observations on the proposed amendments to the Danish Aliens legislation,” Oct. 25, 2017, at [19]. See text at note 993.

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refugee with establishing a sufficiently secure identity, if that is practically possible,”1117 whatever public order concerns might be raised do not rise to the “compelling” level set by Art. 28. Sadly, and despite the clear drafting history on point, the Court of Justice of the European Union has opened the door to less-than-cautious analysis by finding that “the concept of ‘compelling reasons’ . . . has a broader scope than the concept of ‘serious reasons’ . . . and that certain circumstances which do not exhibit the degree of seriousness authorising a Member State to use the derogation [to remove a refugee from its territory] can nevertheless permit that Member State . . . to deny the refugee concerned his residence permit.”1118 Nor was the strict standard of Art. 28 even acknowledged by a US appeals court when it authorized the exclusion of a refugee from the only system that would enable him to secure a CTD due to the completely non-exceptional circumstance that such a restriction would advance the goal of “deterring repeated unlawful entry into this country.”1119 Given these unfortunate jurisprudential developments, VedstedHansen is right to insist that greater attention be paid to cognate norms of international human rights law in order to buttress the intended rigor of Article 28: In addition to [the] inherent limitation in the 1951 Convention, State obligations under human rights treaties may narrow their margin of appreciation even in cases concerning alleged threats to national security or public order. In particular, since the refusal of a travel document constitutes interference with the right of the refugee to leave the country, such a decision will have to comply with the criteria for justification of such interferences according to Art. 12, para. 3 [of the Civil and Political Covenant].1120 1117

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Immigration Appeals Board v. A, B, and C, Case No. 2017/670, HR-2017-2078-A (Nor. SC, Oct. 31, 2017), at [99]. As UNHCR opined in its submissions, “[w]here documentary evidence is missing or weak, authorities may rely on the information obtained during status determination procedures and/or use additional mechanisms, for example, collection of biometrics, verification of ‘social footprint,’ guarantor, references and interviews”: UNHCR, “Amicus curiae of the United Nations High Commissioner for Refugees (UNHCR) on the interpretation and application of Article 25, Article 27 and Article 28 of the 1951 Convention Relating to the Status of Refugees,” Dec. 22, 2016, at [50]. HT v. Land Baden-Württemberg, Dec. No. C-373/13 (CJEU, June 24, 2015), at [75]. While the issue in this case was the denial of a residence permit and not a CTD, the “unless compelling reasons of national security or public order otherwise require” language of Art. 24(1) of the EU Qualification Directive is identical to that found in Art. 28 of the Refugee Convention governing refugee travel documents. Victor Garcia Garcia v. Attorney General, 856 F. 3d 27 (US CA1, May 3, 2017). The court moreover erroneously required the refugee to rebut the government’s assertion of necessity grounded in public order, an approach correctly said by the dissenting judge to “place[] the burden on the wrong party”: ibid. See also RSC v. Attorney General, 869 F. 3d 1176 (US CA10, Sept. 6, 2017), at [4], erroneously determining that because “strictly enforcing [US domestic laws’] relief bar advances US national security or the public order [emphasis added],” that was sufficient to meet the Art. 28 exception. Vedsted-Hansen, “Article 28,” at 1207.

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Specifically, because Art. 12(3) of the Covenant allows constraints on the right to depart a country only if based on standards that are “provided by law, . . . necessary in a democratic society for the protection of [those] purposes and . . . consistent with all other rights recognized in the Covenant,”1121 the interaction of refugee and general human rights law1122 now requires that the denial of a CTD on even “compelling” national security or public order grounds respect these additional requirements. The “necessary” constraint is especially important, since it requires that any measures constraining freedom of movement – including, for example, the refusal to provide a travel document – must “conform to the principle of proportionality; they must be appropriate to achieve their protective function; they must be the least intrusive instrument amongst those which might achieve the desired result; and they must be proportionate to the interest to be protected.”1123 Despite the fact that Art. 28 properly construed and read in tandem with Art. 12(3) of the Civil and Political Covenant sets quite a high bar for denial to a refugee of a Convention travel document, it notably does not require any particular procedure to test a government’s assertion that “compelling reasons of national security or public order” exist. This point arose in AZ (Syria),1124 in which the English Court of Appeal considered the case of a Syrian refugee who was denied a travel document on national security grounds, specifically that he was “assessed to hold Islamic extremist views and [had] expressed a desire to travel to Syria to engage in fighting.”1125 Observing that “[t]here are no procedural requirements prescribed”1126 by Art. 28 of the Refugee Convention – and noting in contrast that “article 32 of the [Refugee] Convention [on expulsion] introduces procedural safeguards but [that the Convention] does not do so in connection with decisions on travel documents”1127 – the Court determined that refugee law does not compel the government to disclose its evidence supporting denial of the travel document.1128 This is arguably a fair construction of Art. 28, aligned with 1121

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UN Human Rights Committee, “General Comment No. 27: Freedom of Movement (Article 12),” UN Doc. CCPR/C/21/Rev.1/Add.9, Nov. 2, 1999, at [11]. Restriction of the right to leave under Art. 12(3) of the Civil and Political Covenant may be justified not only for reasons of national security or public order, but also to protect “public health or morals and the rights and freedoms of others” – concerns which cannot justify refusal to issue a CTD under Art. 28 of the Convention. Under Art. 5 of the Convention, “[n]othing in this Convention shall be deemed to impair any rights and benefits granted by a Contracting State to refugees apart from this Convention.” See Chapter 1.4.5. UN Human Rights Committee, “General Comment No. 27: Freedom of Movement (Article 12),” UN Doc. CCPR/C/21/Rev.1/Add.9, Nov. 2, 1999, at [14]. AZ (Syria) v. Secretary of State for the Home Department, [2017] EWCA Civ 35 (Eng. CA, Jan. 27, 2017). Ibid. at [3]. 1126 Ibid. at [8]. 1127 Ibid. at [36]. The government had authorized a travel document of limited scope – sufficient for the refugee to visit his ill father in Sweden – even as it denied him the more generally applicable CTD: ibid. at [4].

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the general authority granted state parties to administer the CTD regime with autonomy. And for reasons previously analyzed,1129 a decision not to grant a travel document is similarly unlikely to qualify as a “suit at law” that would attract the protection of the Civil and Political Covenant’s Art. 14 mandating guarantees of procedural fairness. The concern, of course, is that absent some means to test the evidence it may be difficult in practical terms to ensure that the decision to deny a travel document also comports with the three-part necessity test required by Art. 12(3) of the Covenant.1130 The specific reason for including reference in Art. 28 to the “public order” ground was to authorize denial of a travel document to a refugee “who was being prosecuted for an offence under civil law.”1131 As explained by the Danish representative [T]ravel documents were used not only for immigration purposes, but also to allow a person to travel on business or on holiday. It might well be that, if in possession of a travel document, a refugee suspected of having committed a crime in a particular country would be able to obtain a visa from the Consul of another country without the Consul being aware of the facts of the case. It would consequently be undesirable to issue a travel document to such a person before the alleged offence had been fully investigated.1132

This justification is very much in line with thinking on the notion of public order employed in Art. 32 of the Convention, said in that context to justify restrictions in the interests of internal security, particularly to the safety and security of the host country’s citizens.1133 The logic of refusing a travel document to a refugee on national security grounds is perhaps less clear, since that expression was traditionally understood to relate to a threat to the host country emanating from outside the host state’s borders. But under more recent understandings of national security – in which it is recognized that national security may be implicated even in distant events which may have an indirect impact on the host state1134 – there may be greater scope to deny refugees a travel document on this basis. For example, if a refugee is traveling to raise funds for, or otherwise to contribute to, the endeavors of a terrorist organization – as in the AZ (Syria) case just discussed1135 – the state in which he or she lawfully resides would be justified in refusing a travel document. Underlying the determination of states to refuse travel documents to some especially “risky” refugees seems to be a recognition that a unified travel document system can only survive if care is taken by the issuing state not to facilitate the international movement of refugees who could jeopardize the interests of a transit or destination state – even though the logical alternative, effectively requiring the 1129 1131 1132 1134

See Chapter 4.10 at note 2821. 1130 See text at note 1123. Statement of Mr. Herment of Belgium, UN Doc. A/CONF.2/SR.17, July 12, 1951, at 7. Statement of Mr. Hoeg of Denmark, ibid. at 9. 1133 See Chapter 5.1 at note 193 ff. See Chapter 3.5.1 at notes 678–679. 1135 See text at note 1124.

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refugee to remain in the country,1136 at least pending lawful removal under Arts. 32 and 33, is hardly in the immediate self-interest of the issuing state.1137 Governments were prepared to shoulder additional burdens at the time of considering the issuance of a CTD out of a recognition that some vetting was essential to safeguard the safety and security of partner states whose cooperation was required to make the travel document system workable. Because the country in which the refugee was living was usually in a better position to know whether he or she posed a risk, the credibility of the travel document system depended in part on that state’s knowledge being brought to bear. It is important, however, not to overstate the level of confidence reposed in the issuing country. Fundamentally, the practical viability of a common travel document system which left so much discretion to the issuing state rested on two decisions that left significant authority to both destination and transit states. First, it was agreed that the issuing government would be under a clear duty to readmit the holder of a CTD issued by it, subject only to temporal limitations set out in the document itself. Second, both countries of destination and of passage – while required to honor every CTD as the equivalent of a valid passport1138 (contrary to the rules prevailing in the United Arab Emirates,1139 and only recently ended in Qatar)1140 – were nonetheless entitled to apply their usual rules with respect to the issuance of visas. With these safeguards in hand, governments felt that their interests were adequately protected. At the very start of debate on the travel document system, the British representative opined that the goal of the regime had to be “to enable a refugee who had no passport to return within a given period to the country that issued his travel document. Without that provision, the refugee would probably not be allowed to enter other countries, for they would hesitate to admit him for fear that they might be obliged to keep him permanently on their territory.”1141 More bluntly, the Chairman of the Ad Hoc Committee warned that 1136

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“Since ordinarily a refugee cannot leave the country without a travel document . . . [the right to withhold issuance of a travel document] means in essence that every Contracting State may forbid the egress of a refugee if this prohibition appears to be in the interest of national security or public order”: Robinson, History, at 135. It is noteworthy that the original draft of para. 13(1) of the Schedule, drawn from the 1946 London Agreement, specifically “entitle[d] the holder to leave the country where it had been issued”: “United Kingdom: Draft Proposal for Article [28],” UN Doc. E/AC.32/L.17, Jan. 30, 1950, at 3. With the omission of this language from the final text of para. 13, the issuing state is entitled, in accordance with para. 14 of the Schedule, to apply its general “laws and regulations” to govern “departure from” its territory: Refugee Convention, at Schedule, para. 14. Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.42, Aug. 23, 1950, at 20. See text at note 1011. 1140 See text at note 1010. Statement of Sir Leslie Brass of the United Kingdom, UN Doc. E/AC.32/SR.16, Jan. 30, 1950, at 4. The practical importance of codifying this principle is clear from the view expressed by the Chairman of the Ad Hoc Committee that, as a matter of general law, he had “doubt concerning the principle that the country issuing the travel document was

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When a refugee . . . travelled out of his country of residence, the first question which rose in the minds of the authorities of any country which admitted him was whether it would be possible to get rid of him. They knew that if they kept him after his travel document had expired, the country which had issued that document could disclaim any further responsibility for him, but as long as that travel document remained valid he would be admitted on the understanding that at least one country would accept him again. If that last protection for countries admitting refugees in possession of travel documents issued by their country of residence was removed, entry visas would be supplied only after careful study of the probability of the refugee being permitted to return to his country of residence. The purpose of article [28] was to make it possible for a refugee to travel away from his country of residence with the same relative facility as nationals of most countries, and, if the countries in which he travelled were deprived of their only safeguard, his travel document would become worthless.1142

The approach adopted therefore enshrined the principle of presumptive duty to readmit1143 during the period of the travel document’s validity1144 (either one or two years):1145

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under an obligation to readmit the refugee if the country of destination would not permit him to remain there”: Statement of the Chairman, Mr. Chance of Canada, ibid. at 12. Statement of the Chairman, Mr. Larsen of Denmark, UN Doc. E/AC.32/SR.39, Aug. 21, 1950, at 14. “Each Contracting State undertakes that the holder of a travel document issued by it in accordance with article 28 of this Convention shall be readmitted to its territory at any time during the period of its validity”: Refugee Convention, at Schedule, para. 13(1). This was in line with prevailing state practice. “[A]ny holder of a Danish travel document was entitled to re-enter Denmark, provided the document was still valid”: Statement of the President, Mr. Larsen of Denmark, UN Doc. A/CONF.2/SR.18, July 12, 1951, at 11. See also Statement of Mr. Rochefort of France, ibid. at 14: “In point of fact, the travel document conferred the right both of exit and of re-entry”; and Statement of Mr. Herment of Belgium, ibid. at 11: “[T]he terms on which the document was conceived implicitly covered authorization to return.” Thus, “it is also a purpose of the travel document to assure a refugee the same status on return to the issuing State as he or she had before leaving it”: Vedsted-Hansen, “Article 28,” at 1183. “Within the period of validity, the travel document should normally not be withdrawn; if the refugee is actually using it for travel abroad, withdrawal would be incompatible with the principle of readmission to the issuing State”:Vedsted-Hansen, “Article 28,” at 1209. UNHCR has moreover suggested “that where the travel document expires and cannot be renewed by the refugee through no want of diligence on his or her part, for example, because of the denial of access to the issuing State’s consular officers or contact with UNHCR, then the right of return continues particularly where the refugee can show long term residence and established ties”: Written Submission on Behalf of the Intervener in The Queen v. Secretary of State for Foreign and Commonwealth Affairs, Doc. C1/2006/ 1064, July 12, 2006, at [84]. “The document shall have a validity of either one or two years, at the discretion of the issuing authority”: Refugee Convention, at Schedule, [5].

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[T]he country issuing a travel document to a refugee would be responsible for him and would be obliged to readmit him, whatever his legal status in that country, if he was not accepted elsewhere.1146

As such, state parties may not lawfully issue only a “one-way” travel document with no return clause. Governments concerned that they may be subject to readmission obligations of an unacceptably long duration1147 may exercise the option “in exceptional cases, or in cases where the refugee’s stay is authorized for a specific period” to limit the right of reentry to a period not less than three months from the date of issue1148 – meaning that the South African practice of issuing variable duration CTDs (of not less than three months) aligned with the duration of each refugee’s residence permit is reconcilable to the requirements of Art. 28. But any such limitation must be noted explicitly in clause 1(2) of the CTD, thus ensuring that there is no question of the admitting state being taken unawares by any special temporal limitation on reentry to the issuing country.1149 Apart from such an express limitation, the right of a refugee holding a CTD to reenter the issuing country may only be subjected to compliance with return 1146

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Statement of Mr. Larsen of Denmark, UN Doc. E/AC.32/SR.16, Jan. 30, 1950, at 13. When a refugee reenters the issuing state, “the refugee need be accorded no better status than he had before he left. For example, a refugee authorized to remain in a country for a limited period who leaves that country with a travel document could, on his return, claim to remain only for the unexpired period granted in the original permission, unless the government concerned decided to extend the period”: Ad Hoc Committee, “First Session Report,” at Annex II. Canada, for example, was worried about “the question of [refugees’] return . . . The readmission clause, as proposed, might raise certain difficulties. Nevertheless Canada would be ready to accept provisionally a solution whereby the proposed travel document would, during the period of validity, give the bearer considerable possibility of returning to the country of residence”: Statement of the Chairman, Mr. Chance of Canada, UN Doc. E/AC.32/SR.16, Jan. 30, 1950, at 7–8. “The Contracting States reserve the right, in exceptional cases, or in cases where the refugee’s stay is authorized for a specific period, when issuing the document, to limit the period during which the refugee may return to a period of not less than three months”: Refugee Convention, at Schedule, [13(3)]. “These ‘exceptional cases’ are not defined. In view, however, of the basic purpose of issuing travel documents to refugees (i.e. to facilitate their movement), it is evident that such exceptions should be limited to cases where there are very special reasons for restricting the validity of the return clause to a period less than that of the validity of the travel document”: UNHCR, “Travel Documents,” at [22]. See also Grahl-Madsen, Commentary, at 156: “[T]he word ‘exceptional’ makes it quite clear that the provision of subparagraph 3 is not one which should be easily i