The Evolving Definition of the Refugee in Contemporary International Law more

THE EVOLVING DEFINITION OF THE REFUGEE IN CONTEMPORARY INTERNATIONAL LAW William Thomas Worster* I. INTRODUCTION ................................................................................................................................2 II. INTERPRETATION OF THE DEFINITION IN THE REFUGEE CONVENTION..................3 III. EVOLUTION OF A DEFINITION UNDER CUSTOMARY INTERNATIONAL LAW .......13 IV. CUSTOMARY INTERNATIONAL LAW NARROWING THE DEFINITION......................46 A. STATE PRACTICE EXPANDING THE DEFINITION .................................................................. 16 B. THE ROLE OF SPECIALLY INTERESTED STATES ................................................................... 17 C. INTERNATIONAL AGREEMENTS DEFINING REFUGEE STATUS .............................................. 19 1. The Organization of African Unity Convention on Refugees........................................ 19 2. The Asian-African Legal Consultative Organization Bangkok Principles .................... 20 3. The Cartagena Declaration............................................................................................. 22 4. The Mercosur Rio de Janeiro Declaration...................................................................... 23 5. Conclusion on the Role of International Agreements by Specially Interested States .... 23 D. THE INFLUENCE OF “SUBSIDIARY PROTECTION” IN INTERNATIONAL AGREEMENTS ........... 24 E. THE INFLUENCE OF MUNICIPAL LAW .................................................................................. 27 1. Municipal Law and Practice Concerning Refugee Status .............................................. 28 2. Municipal Law and Practice Concerning Subsidiary Protection ................................... 34 F. PRACTICE AND OPINIO JURIS OF ENTITIES OTHER THAN STATES ........................................ 39 1. United Nations High Commissioner for Refugees Practice and Opinio Juris ............... 39 2. Council of Europe Practice and Opinio Juris................................................................. 43 3. European Union Practice and Opinio Juris.................................................................... 43 4. Other Instances of International Organization Practice and Opinio Juris ..................... 44 5. Conclusion on International Organization Practice and Opinio Juris............................ 45 V. CONCLUSION..................................................................................................................................63 * A. TERRITORIAL APPLICATION ................................................................................................ 46 B. INTERNAL FLIGHT OR RELOCATION ALTERNATIVE............................................................. 47 C. SAFE THIRD COUNTRY OR COUNTRY OF ORIGIN POLICIES ................................................. 51 D. PROHIBITIONS ON APPLYING FOR RECOGNITION OF REFUGEE STATUS ............................... 55 E. RECOGNITION OF REFUSALS BY OTHER STATES ................................................................. 57 F. MANIFESTLY UNFOUNDED APPLICATIONS .......................................................................... 59 G. DIPLOMATIC ASSURANCES ................................................................................................. 61 Lecturer and Research Director, International Law, Bynkershoek Institute, The Hague University, The Hague, The Netherlands; LL.M. (Adv.) in Public International Law, cum laude, Leiden University, Faculty of Law, Leiden, The Netherlands; J.D., Chicago-Kent College of Law, Illinois Institute of Technology, Chicago, Illinois; B.A., Modern European History, University of Kansas, Lawrence, Kansas. 1 Electronic copy available at: http://ssrn.com/abstract=1736547 I. INTRODUCTION The Refugee Convention is one of the cornerstones of the larger human rights system for protecting vulnerable persons and yet it is also a very narrow instrument, protecting a very specific group of persons. This duality is reflected in the duality of refugee protection generally where, on the one hand, states appear to believe in a moral, humanitarian imperative to protect individuals seeking refuge, yet, on the other hand, they are reluctant to permit entry to those persons falling under their responsibility. When we consider the contemporary definition of refugee, and therefore how customary international law may supplement the definition of refugee, we see this same division of interests. If we were motivated strictly by human-centered interests, we would find a broadening of the definition, although perhaps with little state compliance. If we were motivated strictly by state-centered interests, we might find a narrowing of the definition, although perhaps abandoning desperate individuals truly in need. This article will attempt to navigate between these perspectives to look, firstly, at how the definition may be broadening under customary international law, and then look, secondly, at how the defection may be narrowing. Section II will address the evolving interpretation of the definition of refugee under the Refugee Convention, especially the evolving technique for interpreting the Convention, to determine whether the conventional definition has outgrown its conventional shell. Section III will turn to customary international law proper, analyzing state practice and opinio juris on point. In particular, this section will reflect on the role of specially interested or specially affected states in the formation of customary international law and the growth of “subsidiary” protection. Also this section will consider the contribution of the practice and opinio juris of international organizations in the frame of contemporary international law’s understanding of the contribution international organizations can make. Section IV will turn to look at the opposite side of the coin: the ways in which customary international law may have narrowed the definition beyond the terms of the Refugee Convention. If we are open to considering the broadening role of customary international law, then we must equally be open to the narrowing role. Some of the provisions examined in this section are perhaps not correctly considered aspects of the definition, for example, safe third country option and diplomatic assuarances. These might be better understood as exceptions to the non-refoulement obligation. However, they will be considered nonetheless within the broader notion of the definition of those deserving refuge similar to the “exclusion” or public danger clauses in the Refugee Convention, which interact with the application of the definition in important ways, such as in the case of child soldiers. These additional concerns are developing under customary international law to increasingly restrict the availability of refuge. Section V will conclude by summing up the findings of the analysis. 2 Electronic copy available at: http://ssrn.com/abstract=1736547 II. INTERPRETATION OF THE DEFINITION IN THE REFUGEE CONVENTION The beginning for any inquiry into the definition of a refugee is the Refugee Convention and its protocol.1 The Refugee Convention specifies that a person (1) qualifies as refugees if the person has already been considered a refugee under prior treaty arrangements2 or (2) who is outside the country of his nationality (or not having a nationality) and is unable or unwilling to avail himself of the protection of that country due to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.3 The latter are commonly referred to as the “inclusion” clauses. Failure to qualify under the former does not defeat the possibly of qualification under the latter.4 This article will not address in depth the requirements of persecution or social group membership, other than to note in passing that the classification of social group membership appears to be broadening to consider cultural changes.5 Also one of the most significant changes in interpretation is that some states Convention relating to the Status of Refugees (hereinafter “Refugee Convention”), adopted on July 28, 1951 by the U.N. Conf. of Plenipotentiaries on the Status of Refugees & Stateless Persons convened under U.N.G.A. Res. 429 (V) (Dec. 14, 1950), 189 U.N.T.S. 150 (entered into force Apr. 22, 1954); Protocol Relating to the Status of Refugees (hereinafter “Refugee Protocol”), adopted by U.N.G.A. Res. 2198 (XXI) (Dec. 16, 1966), Jan. 31, 1967, 606 U.N.T.S. 267 (entered into force Oct. 4, 1967). Note that some authorities cited herein may refer to the Refugee Convention as the “Geneva Convention of 1951” or similar. 2 Refugee Convention, art. 1A(1) (person who has been considered a refugee under the Arrangements of May 12, 1926 and June 30, 1928 or under the Conventions of October 28, 1933 and February 10, 1938, the Protocol of September 14, 1939 or the Constitution of the International Refugee Organization). 3 Refugee Convention, art. 1A(2). Also see Min. Immigr. Ethnic Aff’rs v. Guo & Anor. (Matter No. S151 of 1996), [1997] H.C.A. 22 (High Ct., Aust’lia, June 13, 1997); R v. Sec’y St. ex parte Adan, [2001] 2 A.C. 477 (U.K. H. Lords, Apr. 2, 1998) (Slynn, L.) I am satisfied, however, that the Geneva Convention [Refugee Convention] in Article 1A(2), does not confer that status. The first matter to be established under the Article is that the claimant is outside the country of his nationality owing to a well-founded fear of persecution. That well-founded fear must, as I read it, exist at the time his claim for refugee status is to be determined; it is not sufficient as a matter of the ordinary meaning of the words of the Article that he had such fear when he left his country but no longer has it. 1 Also see e.g. A.G. v. Ward, [1993] 2 S.C.R. 689; (1993) 103 D.L.R. (4th) 1; 20 Imm. L.R. (2d) 85 (Sup. Ct., Can., June 30, 1993); Wang v. Min. for Immigr. & Multicult. Aff’rs, [2000] F.C.A. 1599 (High Ct., Aust’lia, Nov. 10, 2000); Applicant A. & Anor. v. Min. Immigr. & Ethnic Aff’rs & Anor., [1997] H.C.A. 4; (1997) 190 C.L.R. 225; 142 A.L.R. 331 (High Ct., Aust’lia, Feb. 24, 1997); Namitabar v. Can. (Min. of Employ. & Immigr.), Case A-125292, [1994] 2 Can. F.C. 42 (Fed Ct. T.D.) (Tremblay-Lamer, J.); Fathi-Rad, v. Can. (Sec’y of St.), Case No. IMM2438-93, [1994] 77 F.T.R. 41 (Fed. Ct. T.D., Apr. 13, 1994); Islam (A.P.) v. Sec’y St. Home Dep’t, R. v. Immigr. Appl. Trib. & Anor. ex parte Shah (A.P.) (Conjoined Appeals) (U.K. H. Lords, Mar. 25, 1999); Mandla v. Dowell Lee, [1983] 1 Q.B. 1 ( Q’s Bench, U.K.); U.N. HIGH COMM’R FOR REFUGEES, HANDBOOK ON PROCEDURES AND CRITERIA FOR DETERMINING REFUGEE STATUS UNDER THE 1951 CONVENTION AND THE 1967 PROTOCOL RELATING TO THE STATUS OF REFUGEES, U.N. Doc. HCR/IP/Eng/REV.1, paras. 74-6 (rev. ed. 1992) (hereinafter “UNHCR HANDBOOK”). 4 Refugee Convention, art. 1A(1) (“Decisions of non-eligibility taken by the International Refugee Organization during the period of its activities shall not prevent the status of refugee being accorded to persons who fulfil the conditions of paragraph 2 of this section”). 5 See e.g. • • Australia: Applicant A. v. Min. Immigr. & Ethnic Aff’rs, [1997] H.C.A. 4 (individuals opposing China’s “one-child” policy not a social group); Chen Shi Hai v. Min. Immigr. & Multicult. Aff’rs, (2000) 170 A.L.R. 553 (children born outside of “one-child” policy may be a social group) Belgium: Dec. VB/04-1680/E530 (Perm. Appls. Bd. for Refs., Belg., Dec. 2, 2004) (recognizing Mongolian women who break centuries old taboos as a social group) 3 have begun to recognize non-state actors as potential sources of persecution, rather than only states.6 These two observations suggest that at least the applicable provisions within the definition of refugee appear to be interpreted dynamically and with a view to the object and purpose of the Refugee Convention, and the contemporary meaning of the treaty text. • • • • • Canada: A.G. v. Ward, [1993] 2 S.C.R. 689 (membership of the Irish National Liberation Army was not a social group) Finland: Aliens Act (2004) (recognizing gender as a particular social group according to the Refugee Convention) France: Case 550032, “MS” (Comm’n des Recours des Réfugiés (hereinafter “CRR”) [Refugees Appls Bd.], Dec. 20, 2005) (persecution based on female genital mutilation); Case 445756, “FS” (CRR, Dec. 1, 2005) (recognizing persons with albinism as a social group); Case 534159, “LO” (CRR, Sep. 19, 2005) (persecution based on gender); Case 497003 (CRR, Mar. 2, 2005) (recognition of homosexuals as a social group); Case 489014, Ayten Tas (CRR, Mar. 4, 2005) (recognition of persecution based on sexual grounds for subsidiary protection); Case 496775, “B” (CRR, Feb. 15, 2005) (recognition of transsexuals as a social group); Case 513490, “SD” (CRR, Jan. 10, 2005) (same); Case 492349 (CRR, Dec. 22, 2004) (recognition of homosexuals as a social group for subsidiary protection); Case 444000, Noreen Niaz (CRR, Oct. 15, 2004) (recognition of persecution based on sexual grounds for subsidiary protection); Case 473647, “NH” (CRR, July 23, 2004) (recognition of homosexuals as a social group for subsidiary protection). Germany: Grundgesetz [Basic Law] § 16a, para. 1 (para. 2 prior to 1993); Ausländergesetz [Foreigner Law], art. 51, para. 1; Immigration Act, (2005) (recognizing gender-related persecution); Case 9 C 48/92 (Bundesverwaltungsgericht (hereinafter “BVerwG”) [Fed. Admin. Ct.], Jan. 18, 1994); Case 9 C 278/86 (BVerwG, Mar. 15, 1988); Case 13 TH 1094/87 (Verwaltungsgerichtshof (hereinafter “VGH”) [Higher Administrative Court] (13th Sen.), Hessen, Nov. 14, 1988); Case 10 OE 69/83 (VGH (10th Sen.), Hessen, Aug. 21, 1986); Case A 7 K 31131/03 (Verwaltungsgericht (hereinafter “VG”) [Admin. Ct.], Dresden, Feb. 1, 2005) (recognizing gender persecution); Case 5 E 7021/03.A(3) (VG, Frankfurt am Main, Feb. 19, 2005) (same); Case 9 E 30919/97.A (2) (VG, Frankfurt am Main, Mar. 29, 1999); Case 5 E 33532/94.A (3) (VG, Frankfurt am Main, Oct. 23, 1996); Case 1 A 185.95 (VG, Magdeburg, June 20, 1996); Case 9 K 51445/03 (VG, Minden, May 17, 2004) (same); Case 7 E 2235/03.A(V) (VG, Wiesbaden, Nov. 4, 2004 )(same); but see Case 5 K 2591/03.NW (VG, Neustadt a.d.W., Apr. 26, 2004) (holding that women may be required to comply with social conditions); Case 6 A 160/04 (VG, Stade, May 26, 2004) (same); Case 4 K 1157/98 (VG, Trier, Apr. 27, 1999). Slovakia: case reported but unnamed in European Council on Refugees and Exiles, ECRE Country Report 2004 (2005), available at http://www.ecre.org/files/CR04.pdf (hereinafter “ECRE Country Report 2004”) (recognizing gender persecution) Also see that provisions against discrimination can inform the reading of persecution on one of the protected grounds: International Convenant on Civil and Political Rights, (hereinafter “ICCPR”), adopted as U.N.G.A. Res. 2299 (XXI) (Dec. 16, 1966), 21 U.N.G.A.O.R. Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), art. 2(1), 999 U.N.T.S. 171 (entered into force Mar. 23, 1976); International Covenant on Economic, Social and Cultural Rights, adopted as U.N.G.A. Res. 2200A (XXI) (Dec. 16, 1966), 21 U.N.G.A.O.R. Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), art. 2(2), 993 U.N.T.S. 3 (entered into force Jan. 3, 1976); International Convention on the Elimination of All Forms of Racial Discrimination, adopted as U.N.G.A. Res. 2106 (XX), Ann. (Mar. 7, 1966), 20 U.N.G.A.O.R. Supp. (No. 14) at 47, U.N. Doc. A/6014 (1966), art. 1(1), 660 U.N.T.S. 195 (entered into force Jan. 4, 1969); Convention on the Elimination of All Forms of Discrimination against Women, adopted as U.N.G.A. Res. 34/180 (Dec. 18, 1979), 34 U.N.G.A.O.R. Supp. (No. 46) at 193, U.N. Doc. A/34/46, art. 1, 1249 U.N.T.S. 13 (entered into force Sep. 3, 1981; Convention on the Rights of the Child, adopted as U.N.G.A. Res. 44/25, Ann. (Nov. 20, 1989), 44 U.N.G.A.O.R. Supp. (No. 49) at 167, U.N. Doc. A/44/49 (1989), art 2(1), 1577 U.N.T.S. 3 (entered into force Sep., 2, 1990); International Labour Convention No. 111, Discrimination (Employment and Occupation) Convention, adopted by the Gen. Conf. of the Int’l Labour Org., 42 sess., June 25, 1958, 362 U.N.T.S. 31 (entered into force June 15, 1960). 6 See Arthur C. Helton & Pamela Birchenough, Forced Migration in Europe, 20-Fall FLETCHER F. WORLD AFF’RS 89, 92 (1996) (reporting on Austria, France, Sweden, and Switzerland; although Switzerland does often permit these individuals to remain on other humanitarian grounds). 4 However, there are also several provisions that defeat refugee status for otherwise qualified individuals. Individuals who do qualify under (1) or (2) above may fall outside the definition if they have voluntarily re-availed themselves of the protection of the country of nationality;7 have voluntarily re-acquired nationality of the state;8 have acquired a new nationality and protecting state;9 or voluntarily re-established themselves in the state.10 In the case of multiple nationals, the individual must qualify as a refugee as per all the states of nationality.11 It may also be permissible to refuse to recognize a person as a refugee if the 7 8 Refugee Convention, art. 1C(1). Refugee Convention, art. 1.C(2). Also see Case Re. Cessation of Refugee Status, No. 2001/01/0499 (VGH, Aust., May 15, 2003): However, […] in addition to voluntariness and re-availment the additional requirement of intent […] is decisive. An intent to normalise relations to the country of origin […] and to again entrust that country with the representation of one’s interest will normally be missing as long as (in particular: state) persecution prevails. 9 Refugee Convention, art. 1C(3). Refugee Convention, art. 1C(4). 11 Refugee Convention, art. 1A(2); Jong Kim Koe v. Min. for Immigr. & Multicult. Aff’rs, [1997] F.C.A. 306, at p. 9 (Fed. Ct. Aust’lia, 2 May 1997) (upholding Koe v. Min. for Immigr. & Ethnic Aff’rs, [1997] 78 F.C.R. 289 (High Ct., Aust’lia)) 10 Given the objects of the [Refugee] Convention, it can hardly have been intended that a person who seeks international protection to which, but for a second nationality he or she would clearly be entitled, would, as a consequence of a formal but relevantly ineffective nationality, be denied international protection and, not being a “refugee”, could be sent back to the country in which he or she feared, and had a real chance of, being persecuted. […] [Thus] findings that a person has dual nationalities but lacks a well-founded fear of persecution in one of the countries of nationality will not necessarily preclude a finding that the person is a refugee. N.A.G.V. & N.A.G.W. of 2002 et al. v. Min. Immigr. & Multicult. Aff’rs et al., S187/2004, [2005] H.C.A. 6 (High Ct., Aust’lia, Mar. 6, 2005); Min. for Immigr. & Multicult. Aff’rs v. Thiyagarajah, (1997) 151 A.L.R. 685 (High Ct., Aust’lia.) (regarding Sri Lankan with French nationality); Re “SRPP” & Min. for Immigr. & Multicult. Aff’rs, No. N2000/399 [2000] A.A.T.A. 878 (Admin. Appls. Trib., Aust’lia, Oct. 5, 2000) (regarding East Timorese); Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Can.); A.G. v. Ward, [1993] 2 S.C.R. 689; (1993) 103 D.L.R. (4th) 1 (Sup. Ct. Can., June 30, 1993) (“The Board must investigate whether the claimant is unable or unwilling to avail himself or herself of the protection of each and every country of nationality … Where the second state has not actually been approached by the claimant, that state should be presumed capable of protecting its nationals.”); Dawlatly v. Min. Citiz. & Immigr., Case No. IMM-3607-97 (Fed. Ct., June 16, 1998) (Tremblay-Lamer, J.) (also note that Canada might be considered a specially interested state, see supra note 80 and accompanying text); Case Abstract No. IJRL/0127, G. v Sec’y St. Just., (Neths.), 4 INT’L J. REF. L. 551 (1992) (dual Argentine / Uruguayan national had refugee status recognized by the Netherlands because he could prove that he faced a wellfounded fear of persecution from both Argentina and Uruguay) (also note that the Netherlands might be considered a specially interested state, although it is less affected than some of the other states considered in this article, see infra note 84); Case Abstract No. IJRL/0071 (Switz.), 3 INT’L J. REF. L. 129 (1991) (Jewish individual refused refugee status by Switzerland because he could seek refuge in Israel); Case Abstract No. IJRL/0067, St. M. v Sec’y St. Home Dep’t (U.K.), 3 INT’L J. REF. L. 129 (1991) (same but refused by the U.K.) (also note that the U.K. could be considered a specially interested state, see infra note 72 and accompany text); UNHCR HANDBOOK, supra note 3 at paras. 106-7 This clause, which is largely self-explanatory, is intended to exclude from refugee status all persons with dual or multiple nationality who can avail themselves of the protection of at least one of the countries of which they are nationals … There will be cases where the applicant has the nationality of a country in regard to which he alleges no fear, but such nationality may be deemed to be ineffective as it does not entail the protection normally granted to nationals. In such circumstances, the possession of the second nationality would not be inconsistent with refugee status. 5 person has the potential nationality (perhaps even ethnicity) of another state.12 However, this dual nationality (or residence) provision is not always strictly applied under municipal law, evidencing a purposive application of the terms of the convention. For example, North Koreans who avail themselves of South Korean nationality are considered firmly resettled in South Korea by the US,13 but if they do not, they cannot be returned to the Korean peninsula on the theory that they could be considered South Korean nationals.14 Persons will also not qualify if the persecuting circumstances within the relevant state have ceased to exist,15 the so-called “cessation” clauses. According to the Executive Committee of the UNHCR, the cessation clauses are not to be applied lightly and that in order to invoke one, there must have been a change in the refugee’s country of origin, which is fundamental, durable, and effective. Fundamental changes are considered as effective only when they remove the basis of the fear of persecution. This provision is usually interpreted more broadly than even the UNHCR appears to advise and refugee status will usually not be considered to have ceased as long as the situation remains one of general danger or instability.16 In general, however, the application of the Refugee Convention appears to be customarily Also see generally ELIM CHAN & ANDREAS SCHLOENHARDT, NORTH KOREAN REFUGEES AND INTERNATIONAL REFUGEE LAW (2007) (making an argument regarding North Korean refugees having the possibility of nationality in the South and thus not qualifying under the Refugee Convention); Ryszard Piotrowicz, Refugee Status and Multiple Nationality in the Indonesian Archipelago: Is there a Timor Gap?, 8(3) INT’L J. REF. L. 319 (1996) (arguing that refugees from East Timor might not qualify under the Refugee Convention due to de jure Portuguese nationality). 12 See e.g. Case No. MIG 2007: 33 II, UM837-06 (Migrationsöverdomstolen [Sup. Migrations Ct.], Swe., June 15, 2007); Rolleiv Solholm, Amnesty Accept Expulsions, NORWAY POST (Sept. 14, 2010) available at http://www.norwaypost.no/news/amnesty-accept-expulsions.html (holding that Serbs from Kosovo may be returned to their “homeland” in Serbia, not Kosovo; also reporting that Amnesty International has accepted the practice). Similarly, individuals do not qualify if they are recognized by the state of residence as having the rights and obligations of nationality of that state, even though not formally holding nationality. See United Nations High Comm’nr Refugees, Prot. Policy & Legal Adv. Sec., Dep’t Int’l Prot., Background Note on the Application of the Exclusion Clauses: Article 1F of the 1951 Convention Relating to the Status of Refugees, para. 9 (Sept. 4, 2003) reprinted at 17 INT’L J. REFUGEE L. 293 (2003) (hereinafter “UNHCR, Background Note on the Exclusion Clauses”) Under Article 1E, the 1951 [Refugee] Convention does not “apply to a person who is recognized by the competent authorities of the country in which he [or she] has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country”. The object and purpose of this Article can be seen as excluding from refugee status those persons who do not require refugee protection because they already enjoy greater protection than that provided under the 1951 [Refugee] Convention in another country apart from the country of origin where they have regular or permanent residence and where they enjoy a status that is in effect akin to citizenship. 13 14 See Matter of K-R-Y- and K-C-S-, 24 Immigr. & Nat’lty. Dec. 133 (Bd. Immigr. Appls, 2007). See North Korean Human Rights Act of 2004, Pub. L. 108-333, 118 Stat. 1287, codified at 22 U.S.C. §7842. 15 Refugee Convention, art. 1C(5) & (6); 98/01/0503 v. Indep. Fed. Asylum Bd. (hereinafter “UBAS”), (VwGH [Admin. Ct.], Aust., Sept. 8, 1999); S.S. (Czech Rep.) v. Swiss Fed. Ofc. for Refugees (Asylum Appls. Comm’n, Switz., Nov. 3, 1999). However, in order for a state to make a determination that person does not qualify as a refugee under this provision, the state is obliged to first determine whether the individual qualifies as a refugee under the Convention. See R v. Spec. Adj’tor ex parte Hoxha, [2005] 1 W.L.R. 1063; [2005] 4 All E.R. 580, [2005] U.K.H.L. 19 (U.K. H. Lords, Mar. 10, 2005) (affirming Hoxha & B., [2002] E.W.C.A. Civ. 1403, [2002] All E.R. (D) 182 (Oct)) (Brown, L.) (“[Art] 1C(5), a cessation clause, simply has no application ... at any stage unless and until it is invoked by the State against the refugee in order to deprive him of the refugee status previously accorded to him”). 16 See e.g. 6 interpreted dynamically with a very heavy reliance on its apparent object and purpose of protection of individuals in need. That is not to say that in several cases, general instability conditions were not considered sufficient to prevent cessation of status17 and in other cases, the instability would not be considered unless it was due to lingering effects of the persecution.18 Additionally, in other cases, general instability was considered, but was considered only in the context of a viable internal flight alternative,19 a topic we will return to later. These cases do not appear to arise in widespread jurisdictions so their evidence of a customary interpretation of the Refugee Convention is limited. Furthermore, even if general conditions of stability did not prevent the cessation of refugee status, some cases held that general conditions of instability could be a ground for granting subsidiary protection, protection, but just not protection under the Refugee • • Denmark: Case unreported and unnamed (Appls. Bd., 2005) reported at ECRE Country Report 2004, supra note 5 (reversing the application of the cessation clause in the case of Afghan refugees since the situation in Afghanistan was not yet sufficiently stable) Germany: Case 1 R 15/04 (Oberverwaltungsgericht (hereinafter “OVG”) [High Admin. Ct.], Saarland, Sep. 21, 2004) (holding that there was no longer a risk of persecution for ethnic Albanians in Kosovo, justifying cessation of refugee status); Case 2 LB 54/03 (OVG Schleswig-Holstein, June 16, 2004) (holding that Afghanistan was sufficiently stable after the fall of the Taliban); Case 8 UE 216/02.A (VGH, Hessen, Feb. 10, 2005) (holding that conditions of stability must be considered and that Afghanistan after the Loya Jirga in June 2002 was sufficiently stable to provide for cessation of refugee status); Case 19 K 03.31666 (VG Ansbach, June 29, 2004) (holding that the particularized living conditions were so poor that refugee status could not be withdrawn); Case 6 A 524/04 (VG Braunschweig, Feb. 17, 2005) (same); Case 7 K 2389/01.A (VG Düsseldorf, Feb. 25, 2004) (same); Case 7 K 1517/00.A (VG Frankfurt/Oder, Mar. 2, 2004) (same); Case 9 E 7411/03.A(2) (VG Frankfurt am Main, Jan. 24, 2005) (same); Case 1 E 495/04.A(V) (VG Frankfurt am Main, May 27, 2004) (same); Case 5 E 4425/03.A (VG Frankfurt am Main, Feb. 27, 2004) (same); Case 9 K 4856/03.A (VG Minden, Apr. 26, 2004) (same); Case 7 E 2245/03.A(V) (VG Wiesbaden, Nov. 4, 2004) (same); Case W 7 K 04.30411 (VG Würzburg, Aug. 20, 2004) (same). Romania: Ord. No. 102/2000, Ordinance on the Status and Regime of Refugees in Romania (Nov. 1, 2000), as amended by Ord. 43/2004, Amending and Completing Government Ordinance No. 102/2000 on the Status and Regime of Refugees in Romania (Jan. 29, 2004) (modifying the rules of cessation, withdrawal and cancelling refugee status to reflect the Refugee Convention) Switzerland: In re O.D. und Kinder, Eritrea, Case 2004, No. 26 (Asylrekurskommission (hereinafter “ARK”) [Asylum Appls. Comm’n] (also cited as “CRR” in French), May 26, 2004) (Eritrea-Ethiopian borderland of the Senafe/Debub region is considered unreasonable due to the humanitarian situation); In re A.G.M. et famille, Angola, Case 2004, No. 32 (CRR, Sep. 17, 2004) (provinces of Cabinda, Uige, Malanje, Lunda Norte, Lunda Sul, Bié, Moxico and Cuando-Cubango of Angola not to be reasonable, but removal to Luanda and easily accessible cities in the provinces of Cunene, Huila, Namibe, Benguela, Huambo, Cuanza Sul, Cuanza Norte, Bengo and Zaïre is considered to be reasonable under certain circumstances (i.e. single men or couples, without young children, no serious medical problems, family or social network). • • 17 See e.g. Case 2 BvR 1056/04 (Bundesverfassungsgericht (hereinafter “BVerfG”) [Fed. Const. Ct.], Germ., July 23, 2004) (holding that refugee status may cease and recognition may be withdrawn, as long the individual received notice of the decision); Case 2 LB 54/03 (OVG Schleswig-Holstein, Germ., June 16, 2004) (reaching opposite conclusion in the case of Afghanistan, finding it was sufficiently stable); Case VG 33 X 302.96 (VG Berlin, Germ., Feb. 2, 2004) (same); Case A 7 K 31035/03 (VG Dresden, Germ., Mar. 16, 2004) (same); Case 5a K 8121/95.A (VG Gelsenkirchen, Germ., Nov. 11, 2004) (same); Case 5 K 1900/03.NW (VG Neustadt a.d.W, Germ., Apr. 26, 2004) (same). Also see Case 5 K 11226/00 (VG Stuttgart, Germ., Jan. 7, 2003) (reaching the opposite conclusion that conditions of stability must be considered but reversed on appeal). 18 See e.g. Case 6 A 58/04 (VG Braunschweig, Germ., Nov. 12, 2004) (holding that cessation did not apply in particularized cases of ethnic Albanians from Kosovo where, e.g. there were lingering effects); Case 3 A 519/03 (VG Göttingen , Germ., Apr. 27, 2004) (same); Case 10 K 442/02.A (VG Saarland, Germ., Nov. 24, 2004) (same). 19 See e.g. Case 6 K 4833/03.A (VG Düsseldorf, Germ., July 15, 2004) (holding that Kabul was sufficiently stable to present a viable internal flight alternative). 7 Convention.20 This holding may in fact evidence that the state holds the belief that where the Refugee Convention strictly fails to provide for protection, the state is nonetheless still obliged to grant protection. This consideration will be addressed in more detail in a subsequent section on subsidiary protection. However, the Refugee Convention does contemplate that even though the conditions of persecution are no longer continuing, an individual might nonetheless still qualify as a refugee if there are compelling reasons arising out of previous persecution for refusing to avail themselves of the protection of the country of nationality,21 sometimes referred to as “exemption from cessation”. The Refugee Convention limits the application of this exception only to individuals who qualify as refugees under Article 1A(1), not 1A(2), i.e. only to “statutory” refugees whose status was based on conventions prior to the Refugee Convention, not “convention” refugees whose status is based on the particular definition of “refugee” in the Convention itself. Notwithstanding the explicit terms of the Refugee Convention, there is practice of states extending this “exemption from cessation” protection to convention refugees,22 even though the 20 See e.g. Case 5a K 8121/95.A (VG Gelsenkirchen, Germ., Nov. 11, 2004) (holding that poor living conditions justified granting subsidiary protection); Case 7 E 572/04. A(V) (VG Wiesbaden, Germ., Mar. 30, 2004) (same). 21 Refugee Convention, art. 1C(5) and (6). Also see generally David Milner, Exemption from Cessation of Refugee Status in the Second Sentence of Article 1C(5)/(6) of the 1951 Refugee Convention, 16(1) INT’L J. REF. L. (2004). 22 See e.g. • • • • • • • • Canada: Immigration Act § 2(3); Jiminez v. Can., Case No. IMM-1718-98 (Fed Ct.). Finland: Aliens Act, 22 Feb. 1991/378, § 36 as amended (however, it is unclear whether the standard is the same: only in cases where the person is ‘evidently no longer stands in need of protection’) Ireland: Refugee Act 1996, No 17/1996 § 21(2) (‘compelling reasons’) Netherlands: Aliens Act 2000 § 27(1)(c) (‘pressing reasons of a humanitarian nature’). New Zealand: Re R.S. (135/92) (“it can no longer be confidently said that the ‘compelling reasons’ exception is confined only to refugees under Article 1A(1)”) Switzerland: Case No. 16, “F.M.”, Rwanda at 139 (ARK, Mar. 23, 1998) UK: In re Qafaliaj, 00/HX/01051, (Immigr. Appls. Trib.). US: 8 CODE. FED. REGS. § 208.13(b)(1(ii) (exempt from denial of status those who are able to demonstrate ‘compelling reasons for being unwilling to return to his or her country of nationality or last habitual residence arising out of the severity of the past persecution’); Skalak v. Immigr. & Natlzn Serv., 944 F. 2d 364 (7th Cir. 1991); Lal v. Immigr. & Natlzn Serv., 255 F. 3d 998 (9th Cir., 2001); Lopez-Galarza v. Immigr. & Natlzn Serv., 99 F. 3d 954 (9th Cir., 1996); Matter of Chen, 20 I. & N. Dec. 16 (Bd. Immigr. Appls., 1989). but see • • • • France: Loi No. 52-893, Loi relative au droit d’asile (July 25, 1952) (providing for the opposite). Luxembourg : Loi du 20 mai 1953 portant approbation de la Convention relative au statut des réfugés, signée Genève, le 298 juillet 1951 [Refugee Convention], Mèm. A-37, Jun 16, 1953 §703 (same) Portugal: Law No. 15/98, Mar. 26, 1998, § 36(h) (same) UK: R v. Spec. Adj’tr ex parte Hoxha, [2005] 1 W.L.R. 1063; [2005] 4 All E.R. 580, [2005] U.K.H.L. 19 (H. Lords, Mar. 10, 2005) (holding that there was no evidence of a clear and widespread State practice); R v. Sec’y St. ex parte Adan, [2001] 2 A.C. 477 (H. Lords, Apr. 2, 1998) (Slynn, L.) (“I am satisfied, however, that the Geneva [Refugee] Convention in Article 1A(2), does not confer that status. The first matter to be established under the Article is that the claimant is outside the country of his nationality owing to a well-founded fear of persecution. That well-founded fear must, as I read it, exist at the time his claim for refugee status is to be determined; it is not sufficient as a matter of the ordinary meaning of the words of the Article that he had such fear when he left his country but no longer has it.”). The UNHCR has also asserted, going further than the UNHCR Handbook, that it has “generally been accepted … that the exception should apply were broadly, reflecting, as it does, a humanitarian concern …” See UNHCR, UN Doc. EC/SCP/1992/CRP.1, para. 15. 8 UNHCR clearly phrases this interpretation as not legally required by the Refugee Convention.23 However, given the extent of state practice there may now be a customary norm requiring its application.24 At the risk of repetition, we once again see a strongly purposive application of the terms of the Refugee Convention in state practice. Also not qualifying as refugees under the Refugee Convention are persons who are receiving protection or assistance from UN offices other than the UNHCR25 such as United Nations Relief and Works Agency for Palestine Refugees in the Near East (“UNRWA”) or United Nations Korean Reconstruction Agency, now defunct. However, if the individual leaves the protection of that agency, and UNRWA is only operating in some portions of the Middle East, then the individual appears to qualify as a refugee under the Refugee 23 David Milner, Exemption from Cessation of Refugee Status in the Second Sentence of Article 1C(5)/(6) of the 1951 Refugee Convention, 16(1) INT’L J. REF. L. (2004). Paragraph 136 of the UNHCR handbook clarifies the’ compelling reasons arising out of previous persecution’ test as referring to’ the special situation where a person may have been subjected to very serious persecution in the past and will not therefore cease to be a refugee, even if fundamental changes have occurred in his country of origin.’ … It is perhaps significant that the Handbook restricts its guidance to noting that the humanitarian principle ‘could’ be applied to other refugees, and that a ‘person’ (perhaps meeting no longer a refugee) who has suffered atrocious persecution should not be expected to ‘repatriate’ - possibly suggesting that they should be protected from removal but not as refugees, an alternative which avoids conflict with a strict interpretation of the convention. … The executive committee, however, has more clearly stated that this humanitarian principle should be applied so as to extend the scope of the exemption to all classes of refugees. In conclusion No. 65, it encouraged use of the cessation clauses, ‘providing that it is recognized that compelling reasons may, for certain individuals, support the continuation of refugee status.’ Similarly in conclusion no. 69 it recommended, ‘so as to avoid hardship cases, that States seriously consider an appropriate status, preserving previously acquired rights, for persons who have compelling reasons arising out of previous persecution for refusing to re-avail themselves of the protection of their country.’ (citing UNHCR Exec. Comm., Gen. Concl. No. 65 (XLII) 1991; UNHCR Exec. Comm. Concl. No. 69 (XLIII) 1992). 24 See Milner, Exemption from Cessation, supra note 23 (“according to the Conclusions of the Lisbon Expert Roundtable, ‘Application of the “compelling reasons” exemption to general cessation contained in Article 1C(5)-(6) is interpreted to extend beyond the actual words of the provision and is recognized to apply to all Article A1(2) refugees. This reflects a general humanitarian principle that is now well-grounded in State practice.’) (citing Fitzpatrick, Current Issues in Cessation of Protection under Article 1C of the 1951 Refugee Convention and Article 1.4 of the 1969 OAU Convention, para. 69 (citing in turn the practice of Germany, Ireland, Slovakia, Ghana, Liberia, Malawi, Zimbabwe, Azerbaijan, Lithuania, Canada and the US). Also note that Germany, the US and Canada may be considered specially interested states, see infra notes 68, 74 and 80, respectively, and accompanying text. 25 Refugee Convention, art. 1D; UNHCR, Background Note on Exclusion Clauses, supra note 12, at para. 8 The exclusion clauses found in Article 1F should be distinguished from Articles 1D and 1E of the 1951 [Refugee] Convention, as the latter deal with persons not in need, rather than undeserving, of international protection. Article 1D provides that the 1951 [Refugee] Convention shall not apply to persons receiving protection or assistance from organs or agencies of the United Nations other than UNHCR. They may, however, fall within the scope of the 1951 [Refugee] Convention in the event that “such protection or assistance has ceased for any reason, without the position of such persons being definitively settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations”. In such circumstances, consideration of exclusion pursuant to Article 1F may arise. See also UNHCR, Note on the Applicability of Article 1D of the 1951 Convention relating to the Status of Refugees to Palestinian Refugees, Oct. 2002. 9 Convention (or at least one court in Finland has determined that the individual must be granted “asylum” because he now qualifies under the Refugee Convention).26 In addition, other persons may qualify under (1) or (2) above but do not deserve the protection of nonrefoulement. These provisions have been adopted in municipal legislation on refugee status.27 There are two classes of persons contemplated. The first class are those falling in the so-called “exclusion” clauses,28 including those with respect to whom there are “serious reasons for considering” that have committed a crime against peace, a war crime, or a crime against humanity,29 committed a serious non26 See Case No. 15.9.2004/04/1240/7 (Helsinki Admin. Ct., Fin., 2004) The Court holds that the appellant must be granted asylum … However, considering the recent information on the security and human rights situation in Gaza, the Administrative Court holds that it has not been proven that the appellant could return to Gaza without a serious danger to his physical security. The appellant is, therefore, entitled to the benefits of the 1951 Geneva [Refugee] Convention. He shall be granted asylum. 27 See e.g. Act No. 480/2002 Z.z. on asylum § 13, as amended (Slovak Rep.) (providing specific categories of people who are excluded from the protection of the Refugee Convention, essentially adopting the Refugee Convention text). 28 The UNHCR has requested that states interpret the exclusion clauses restrictively. See UNHCR HANDBOOK, para. 116 The cessation clauses are negative in character and are exhaustively enumerated. They should therefore be interpreted restrictively, and no other reasons may be adduced by way of analogy to justify the withdrawal of refugee status. Needless to say, if a refugee, for whatever reasons, no longer wishes to be considered a refugee, there will be no call for continuing to grant him refugee status and international protection; UNHCR, Background Note on Exclusion Clauses, supra note 12, at para. 4 Consequently, as with any exception to human rights guarantees, the exclusion clauses must always be interpreted restrictively and should be used with great caution. As paragraph 149 of the Handbook emphasises, such an approach is particularly warranted in view of the serious possible consequences of exclusion for the individual. Moreover, the growth in universal jurisdiction and the introduction of international criminal tribunals reduces the role of exclusion as a means of ensuring fugitives face justice, thus reinforcing the arguments for a restrictive approach. UNHCR, Note on Expulsion of Refugees, U.N.H.C.R. Doc. EC/SCP/3. para. 4 The concept of ‘national security or public order’ may be difficult to apply in a particular case. The travaux preparatoires to the provision argue in favour of a restrictive interpretation in the sense that a refugee should only be expelled as a last resort and as the only practicable means of protecting the legitimate interests of the State. Also see X & Y v. Ref. Status Appls. Auth., Case No. CIV-2006-404-4213, para. 64 (High Ct., Auckland, N. Zealand, Apr. 23, 2007, reported Dec. 17, 2007) (Courtney, J) (agreeing that the clauses must be interrepted restrictively). 29 Refugee Convention, art.1F(a). Also see Mugesera v. Can. (Min. Citiz. & Immigr.), [2005] 2 S.C.R. 100, 2005 S.C.C. 40 (Sup. Ct. Can., June 28, 2005); Zazai v Can. (Min. Citiz. & Immigr.), 2004 F.C. 1356, [2005] 2 F.C. 78, (2004), 262 F.T.R. 246 (Fed. Ct., Can., Oct. 1, 2004) reported at ILDC 646 (CA 2005); Gonzalez v. Can. (Min. Employ. & Immigr.) [1994] 3 F.C. 646 (Fed. Ct. Appl., Can., May 26, 1994); A v Min. Immigr. & Integr. (Council St., Neths., 2005) reprinted at ILDC 848 (NL 2005) (violations of Common Article 3 of the Geneva Conventions regarding international humanitarian law); Vreemdelingenzaken en Integratie [Min. Immigr. & Integr.] v. A, Admin. Appl., 200410057/1; JV 2005/375 m. nt. BPV (Council St., Admin. L. Div., Neths., June 27, 2005) reported at ILDC 546 (NL 2005); Appl. N. Kesbir & Min. Immigr. & Integr., LJN: AQ5615, Raad van State, 200402639/1 and 200402651/1 (Council St., Neths., July 23, 2004) reprinted at ILDC 144 (NL 2004); X & Y v. Ref. Status Appls. Auth., Case No. CIV-2006-404-4213 (High Ct., N. Zealand, Apr. 23, 2007, reported Dec. 17, 2007) (Courtney, J); Garate (Gabriel Sequeiros) v. Ref. Status Appls. Auth., [1998] N.Z.A.R. 241, (High Ct., N. Zealand, Oct. 9, 1997); Emmanuel Egbuna v. Charles Ghankay Taylor, SUIT NO: FHC/ABJ/M/216/2004; David Anyaele v. Charles 10 political crime outside the country of refuge prior to admission as a refugee,30 or “been guilty of acts contrary to the purposes and principles of the United Nations”.31 However, there may be an exception to these provisions for cases of child soldiers,32 even though the Refugee Convention does not contemplate Ghankay Taylor, SUIT NO: FHC/ABJ/M/217/2004 (Fed. High Ct., Abuja Jud. Div., Nigeria, Nov. 1, 2005) (Adah, J.) reprinted at ILDC 163 (NG 2005). Also see Rome Statute of the International Criminal Court, U.N. Doc. A/CONF. 183/9 (1998); Charter of the International Military Tribunal, Annex of the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, 82 U.N.T.S. 279; Intl L. Comm’n, Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal, UN Doc. A/1316 /82 (1950); Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (hereinafter “CAT”), adopted as U.N.G.A. Res. 39/46, Ann. (Dec. 10, 1984), 39 U.N.G.A.O.R. Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984) (entered into force June 26, 1987). 30 Refugee Convention, art. 1F(b). See e.g. Xie v. Can. (Min. Citiz. & Immigr.), 2003 F.C. 1023; [2004] 2 F.C.R. 372, (Fed. Ct., Can., Sept. 4, 2003); T v. Sec’y St. Home Dep’t, [1996] 2 All E.R. 865 (U.K. H. Lords, May 22, 1996) Also note that the UK might be considered a specially interested state, see infra note 72 and the accompanying text); Immigr. & Natz. Serv. v. Aguirre-Aguirre, 526 U.S. 415 (Sup. Ct., U.S., May 3, 1999). 31 Refugee Convention, art. 1F(c). See e.g. Pushpanathan v Can. (Min. Citiz. & Immigr.), [1998] 1 S.C.R. 982; (1998), 43 Imm. L.R. (2d) 117 (Sup. Ct. Can., June 4, 1998), as amended by [1998] 1 S.C.R. 1222 (Sup. Ct., Can., Sept. 17, 1998) reported at ILDC 182 (CA 1998) at paras. 65, 68, 70 & 72 (“In this case there is simply no indication that the drug trafficking comes close to the core, or even forms a part of the corpus of fundamental human rights.”); K.K. v. Sec’y St. Home Dep’t, (Art. 1F(c)) Turk.), [2004] U.K.I.A.T. 101 (Immigr. Asylum Trib, U.K., May 7, 2004), paras. 85 & 93: [T]here are some acts which, despite being political or politically-inspired, do not depend for their criminality on the individual matrix of power within a particular state. These acts […] are those which are intended to be covered by Article 1F(c). That subparagraph does not apply to every crime, nor to every political crime. It applies to acts which are the subject of intense disapproval by the governing body of the entire international community. […] [T]he characterisation of acts as ‘terrorist’ is neither necessary nor sufficient for exclusion under Article 1F(c), it is not irrelevant, because of the clear view of the United Nations on certain sorts of terrorism. Note that the Refugee Convention provides that such persons do not deserve refuge under the Convention, it does not comment on any additional potential obligation under international law to prosecute or extradite. See e.g. G. Gilbert, Current Issues in the Application of the Exclusion Clauses, in E. FELLER, ET AL., EDS, REFUGEE PROTECTION IN INTERNATIONAL LAW: UNHCR GLOBAL CONSULTATIONS ON INTERNATIONAL PROTECTION 425-478, 428 (2003); Elizabeth Santalla Vargas, Ensuring Protection and Prosecution of Alleged Torturers: Looking for Compatibility of Non-Refoulement Protection and Prosecution of International Crimes, 8 EUR. J. MIGR. & L. 41–59 (2006); J. Handmaker, Seeking Justice, Guaranteeing Protection and Ensuring Due Process: Addressing the Tensions between Exclusion from Refugee Protection and the Principle of Universal Jurisdiction, 21(4) NETHS. Q. HUM. RTS. 677-695, 681 (2003); J. Fitzpatrick, The Post-Exclusion Phase: Extradition, Prosecution and Expulsion, 12 INT’L J. REF. L. 272-292, 274 (2000). 32 Case No. AWB 03/26654, Judgement (Dist. Ct. Arnhem, Neths., Oct. 18, 2004) (regarding a former child soldier of UNITA); UNHCR, Background Note on Exclusion Clauses, supra note 12, at paras. 91-93 (internal footnotes omitted) In principle, the exclusion clauses can apply to minors but only if they have reached the age of criminal responsibility. Great caution should always be exercised, however, when the application of the exclusion clauses is being considered in relation to a minor. Under Article 40 of the 1989 Convention on the Rights of the Child, States shall seek to establish a minimum age for criminal responsibility. Where this has been established in the host State, a child below the minimum age cannot be considered by the State concerned as having committed an excludable offence. For those over this age limit (or where no such limit exists), the maturity of the particular child should still be evaluated to determine whether he or she had the mental capacity to held responsible for the crime in question. The younger the child, the greater the presumption that such mental capacity did not exist at the relevant time. and at fn. 92 (“If the age of criminal responsibility is higher in the country of origin, this should also be taken into account (in the child’s favour).”) 11 this exception. These individuals do not appear to ever accrue the status of refugee under the Refugee Convention,33 as opposed to individual qualifying as refugees but who might lose that status later. A second class of persons undeserving of protection is individuals lawfully present who pose a compelling threat to national security or public order,34 persons who present a danger to the security of the country of refuge,35 have been convicted by a final judgment of a particularly serious crime and constitute a danger to the community of the country of refuge.36 This second class applies to those who at some time qualified as a refugee, but who subsequently lose that status.37 The exclusion clause does not appear to be widely used, even if it is potentially applicable.38 Perhaps this lack of use, and the child soldiers exception noted above, are yet other examples of the dynamic and human-oriented application of the Convention. That being said, at least one court has held that Article 33(2) of the Refugee Convention has not been amended by the more absolute prohibitions on refoulement provided the Convention Against Torture or the International Covenant on Civil and Political Rights.39 The New Zealand court in that case noted that Article 30 of the Vienna Convention on the Law of Treaties “concerned successive treaties relating to the same subject matter rather than amendments to treaties.”40 The court also held that “[t]he prohibition on refoulement to torture did not have the status of a peremptory norm and, accordingly, Article 33(2) was not void to the extent that it allowed for refoulement in such circumstances.”41 Essentially, the court held that while the prohibition of torture was jus cogens,42 33 UNHCR, Background Note on Exclusion Clauses, supra note 12 at para. 10 Moreover, Article 1F should not be confused with Article 33(2) of the 1951 [Refugee] Convention which provides that the benefit of the non-refoulement provision ‘may not ... be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he [or she] is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country’. Unlike Article 1F which is concerned with persons who are not eligible for refugee status, Article 33(2) is directed to those who have already been determined to be refugees. Articles 1F and 33(2) are thus distinct legal provisions serving very different purposes. Article 33(2) applies to refugees who become an extremely serious threat to the country of asylum due to the severity of crimes perpetrated by them. It aims to protect the safety of the country of refuge and hinges on the assessment that the refugee in question poses a major actual or future threat. For this reason, Article 33(2) has always been considered as a measure of last resort, taking precedence over and above criminal law sanctions and justified by the exceptional threat posed by the individual -- a threat such that it can only be countered by removing the person from the country of asylum. Refugee Convention, art. 32(1); Dec. No. Nr. III-27-20/2005, (Vilniaus apygardos administracinio teismo sprendimas [Vilnius Dist. Admin. Ct.], Lith., July 15, 2005) (balancing threat to national security and public order against family relations in Lithuania and holding that the need to expel was not necessary in a democratic society). 35 Refugee Convention, art. 33(2). See e.g. Nationality, Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes) Order 2004, (Aug. 2004) (U.K.) (listing offences defined as serious within the context of Article 33(2) of the Refugee Convention, including offences such as “criminal damage” (possibly encompassing graffiti or shoplifting). 36 Refugee Convention, art. 33(2). 37 UNHCR, Background Note on Exclusion Clauses, supra note 12 at para. 10. 38 See e.g. ECRE Country Report 2003: Synthesis (2003) available at http://www.ecre.org/files/01.%20Synthesis.pdf (“[In Denmark, the] Exclusion clauses of the 1951 Geneva [Refugee] Convention in the context of national security were still not widely applied ... In Lithuania and the United Kingdom perceived threats to public order were not dealt with via the use of exclusion clauses [...]”). 39 See CAT, art. 3; ICCPR, arts. 6(1) & 7; A.G. v Zaoui & Insp.-Gen. of Intell. & Sec., (2005) N.Z.S.C. 38; (2006) 1 N.Z.L.R. 289; (2005) 7 H.R.N.Z. 860; reprinted at ILDC 81 (NZ 2005) (Sup. Ct., N. Zealand June 21, 2005). 40 See A.G. v Zaoui (2005) N.Z.S.C. 38 at para. 50. 41 See A.G. v Zaoui, (2005) N.Z.S.C. 38 at para. 51 42 Also see e.g. Pros. v Furundzija, Case No. IT-95-17/1-T, Judgment, paras. 144, 147, 153-4 (Int’l Crim. Trib. Former Yugo., Tr. Ch., Dec. 10, 1998). 34 12 the prohibition of refoulement to a situation of torture was not.43 If we agree that the Refugee Convention has not been amended by the practices cited above, then we might consider whether such practice is establishing a customary international legal norm alongside the conventional one. In any event, it would appear that the means of interpreting the obligations of the Refugee Convention have been established as overwhelming purposive. In addition to the various examples implying a flexible application of the Convention, the Council of Europe has expressly urged such application. The Council issued Recommendation 773 in an attempt to address certain individuals whose refugee status recognition requests were being denied. In its recommendation it is not entirely clear whether the problem is that the individuals do not qualify under the Refugee Convention at all or whether the states of the Council of Europe are not properly fulfilling their international legal obligation to recognize these individuals as de jure refugees under municipal law. The Council recommended that states “apply liberally the definition of ‘refugee’ in the Convention … as amended by the Protocol …”44 A similar policy of dynamic interpretation of the Convention was evidenced above for particular provisions of the Convention, but here it is argued that the entire Convention definition of refugee should be liberally applied. In sum, the conventional definition of refugee is a complex one. It requires that the person, his background and his situation satisfy both inclusive and exclusive requirements. However, the conventional definition has shown a remarkable flexibility of liberal interpretation, either based on an evolving interpretation of the convention or perhaps a supplementary understanding from customary international law. In fact, it appears that it is required for the terms of the Refugee Convention to be interpreted primarily with an eye to the Convention’s object and purpose. III. EVOLUTION OF A DEFINITION UNDER CUSTOMARY INTERNATIONAL LAW As mentioned above, it appears clear that the Refugee Convention has not been amended either explicitly or through practice to provide for a revised definition of refugee; 45 however, customarily it is interpreted in an expansive fashion, relying heavily on its object and purpose. In fact, in some instances cited above, the qualification as a refugee may have been supplemented beyond the express terms of the Convention.46 It has been argued that the definition of refugee does not exist under customary international law but only under treaty law.47 Most scholars of international refugee law have concluded as much. As far as the EU 43 See A.G. v Zaoui, (2005) N.Z.S.C. 38; R. v. Bow St. Metro. Stip. Magistr., ex parte Pinochet Ugarte (No. 3), [2000] 1 A.C. 147, 198, 275, 290 (U.K. H. Lords); Siderman de Blake v. Arg., 965 F. 2d 699, 714-9 (1992). 44 Eur Council, Recomm. 773 (1976) on the Situation of de facto Refugee, Parl. Assembly Council Eur., 27 ord. sess. (Jan. 16, 1976), at II((i). 45 See A.G. v. Zaoui, (2005) N.Z.S.C. 38. 46 See cases cited above regarding cessation clauses, e.g. Case 1 R 15/04 (OVG Saarland, Germ., Sept. 21, 2004); cases and provisions cited above regarding the exemption from cessation provisions, e.g. Immigration Act § 2(3) (Can.); Aliens Act 2000 § 27(1)(c) (Neths.); In re Qafaliaj, 00/HX/01051, (Immigr. Appls. Trib, U.K.); 8 Code. Fed. Regs. § 208.13(b)(1(ii); cases cited above regarding the exception for child soldiers from the war criminal provisions, e.g. Case No. AWB 03/26654, Judgement (Dist. Ct. Arnhem, Neths., Oct. 18, 2004). 47 UN Secretariat, Memorandum, Expulsion of aliens, U.N. Doc. A/CN.4/565 (July 10, 2006) (hereinafter “UN Secretariat Memo”): The concept of ‘refugee’ is not one of customary international law. Consequently a definition of the term and of the status of refugees must be sought in international legal instruments. The main instruments are the Convention Relating to the Status of Refugees of 1951 (the 1951 Convention) and the Protocol Relating to the Status of Refugees of 1967 (the 1967 Protocol). The other instrument is the Statute of the Office of the United Nations High Commissioner for Refugees of 1951 … 13 in particular is concerned, Kay Hailbronner has concluded that “the assumption of an international legal obligation to grant protection to victims of war, civil war and general violence must still be considered as ‘wishful legal thinking’”.48 Similarly, the American Society of International Law has concluded that there is no customary international law obliging states to provide protection to individuals who fall outside the strict terms of the Refugee Convention.49 Even as active an advocate as Guy Goodwin-Gill has stated that … practice reveals a significant level of general agreement not to return to danger those fleeing severe internal upheavals or armed conflict in their own countries … nearly four decades of practice contain ample recognition of a humanitarian response to refugees falling outside the 1951 Convention. Whether practice has been sufficiently consistent over time and accompanied by the opinio juris essential to the emergence of a customary rule of refuge, is possibly less certain, even at the regional level.50 This article will question the validity of these conclusions. However the UN Secretariat’s Codification Division observes that: No generally accepted international instrument encompasses those millions of unfortunate persons who have fled massive human rights abuses, civil wars, external aggression, occupation, foreign domination, or events seriously disturbing public order. However, a few regional arrangements apply to such people. Also, where possible, the United Nations High Commissioner for Refugees (UNHCR), the principal United Nations operating agency responsible for protection and assistance to refugees, as well as various non-governmental organizations and ad hoc groups provide relief in these situations. Due to the growing refugee crisis and the perceived inadequacies of the existing international treaties relating to refugees, concepts such as ‘temporary refugee’ and ‘temporary asylum’ are emerging. (citing 23 LOUIS B. SOHN & T. BUERGENTHAL, EDS., THE MOVEMENT OF PERSONS ACROSS BORDERS, STUDIES IN TRANSNATIONAL LEGAL POLICY §13.01, 100 (1992)). Also the Codification Division notes that: There is as yet no consensus on the definition of ‘refugee’, although treaties and State practice contribute to an understanding of the term. For present purposes we may define a refugee as a person outside his country of nationality who is seeking or has received asylum in a foreign country as a means of protection against persecution in his own … A refugee so defined is an alien of a special kind, since he or she is unwilling or unable to return to his or her country of nationality. (citing RICHARD PLENDER, INTERNATIONAL MIGRATION LAW 393 (rev. 2d ed. 1988)). 48 See D BOUTEILLET-PAQUET, ED., SUBSIDIARY PROTECTION OF REFUGEES IN THE EUROPEAN UNION: COMPLEMENTING THE GENEVA CONVENTION? 13 (2002); PIRRKO KOURULA, BROADENING THE EDGES: REFUGEE DEFINITION AND INTERNATIONAL PROTECTION REVISITED 287 (1997). 49 See Proceedings of the Eighty-Fifth Annual Meeting of the American Society of International Law, Thursday, April 18: Morning, Amer. Soc’y of Int’l L. Proc. Apr. 17-20, 1991, 90 AM. SOC’Y INT’L L. PROC. 545 Since 1957 the General Assembly has allowed the UNHCR to use its good offices to aid refugees who fall outside its mandate. The UNHCR and General Assembly resolutions have often used expressions such as "displaced persons" or "asylum seekers" to refer to those persons outside the mandate who were receiving assistance. Doesn' this UNHCR expansion of the definition reflect the approval of the world community? t Hasn' the General Assembly given its blessings? Haven' States uniformly supported UNHCR’s assistance t t programs with voluntary contributions? Yes, but States have consistently declined to assume any obligation for such people. Voluntary assistance, yes; obligation, no. … Still there is no commitment on the part of the international community to long-term aid unless the wellfounded-fear definition is met. Also note that no consensus emerged from the Global Consultations that customary international law had not expanded the scope of non-refoulement beyond that expressed in the Refuge Convention and Protocol. 50 GUY S. GOODWIN-GILL, THE REFUGEE IN INTERNATIONAL LAW 171 (1996). However, Goodwin-Gill has subsequently relaxed this perspective to be much more open to the existence of a definition of refugee under customary international law. 14 The conference that adopted the Refugee Convention immediately adopted a recommendation and attached it to the Final Act urging states should to extend refugee benefits to individuals not qualifying under the narrow terms of the Refugee Convention:51 The Conference, expresses the hope that the Convention relating to the Status of Refugees will have value as an example exceeding its contractual scope and that all nations will be guided by it in granting so far as possible to persons in their territory as refugees and who would not be covered by the terms of the Convention, the treatment for which it provides. This statement could be interpreted to acknowledge, or possibility even express opinio juris, that a complementary definition would develop under customary international law. Many authors have attempted to argue that just such a definition under customary international law has arisen. Some have argued that the prevailing restrictive reading of the term “refugee” in the Convention is incorrect, disregards usage of the term prior to the Convention and is not supported by the travaux préparatoires. 52 Some have even argued that the Refugee Convention is merely one in a collection of human rights instruments that must be read as a whole so that the protections described of the Refugee Convention apply to any person who enjoys some form of non-refoulement from any human rights instrument. Thus, non-refoulement is a general principle and the Refugee Convention is merely one kind of situation in which non-refoulement arises.53 For example, Maria-Teresa Gil-Bazo argues that “in addition to refugees within the meaning of the Geneva Convention, there are other categories of individuals that have a right to protection under international law and accordingly, they are ‘refugees’ in a broader sense.”54 However, many of these authors have not cited extensive practice and opinio juris to support their argument. This article will attempt to identify practice and opinio juris on point. See Final Act of the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, para. IV, Recomm. E. reprinted at UNHCR, CONVENTION AND PROTOCOL RELATING TO THE STATUS OF REFUGEES (2007) available a http://www.unhcr.org/protect/PROTECTION/3b66c2aa10.pdf. Also note that the Conference on Territorial Asylum expressed a consensus view that the definition of refugee should be expanded. 52 See T. Spijkerboer, Subsidiarity in Asylum Law. The Personal Scope of International Protection, in D. BOUTEILLET-PAQUET, ED., SUBSIDIARY PROTECTION OF REFUGEES IN THE EUROPEAN UNION: COMPLEMENTING THE GENEVA CONVENTION? 28-9 (2002); María-Teresa Gil-Bazo, Refugee status, subsidiary protection, and the right to be granted asylum under EC law, New Issues in Refugee Research, Research Paper No. 136 (Nov. 2006). Also see UNHCR Exec. Comm., 18th mtg., Complementary Forms of Protection: Their Nature and Relationship to the International Refugee Protection Regime, U.N. Doc. EC/50/SC/CRP.18 (9 June 2000) (noting that during the drafting of the Refugee Convention, France had proposed that refugee status should extend to a person ‘unable to obtain from [his or her] country [of origin] permission to return’) (citing Ad Hoc Committee on Statelessness and Related Problems, France: Proposal for a Draft Convention Preamble, U.N. Doc. E/AC.32/L.3 (17 Jan. 1950). Also note that France may be considered a specially interested state. See infra note 82 and accompanying text. 53 See Gil-Bazo, Refugee status, supra note 52; J. McAdam, Humane Rights: The Refugee Convention as a Blueprint for Complementary Protection Status, paper presented at Moving On: Forced Migr. & Hum Rts. Conf., NSW Parl. House (Nov. 22, 2005). 54 See María-Teresa Gil-Bazo, La protección internacional del derecho del refugiado a recibir asilo en el Derecho internacional de los derechos humanos, in F.M. MARIÑO MENÉNDEZ, ED., DERECHO DE EXTRANJERÍA, ASILO Y REFUGIO 691-2 (2d ed., 2003). Also see Spijkerboer, Subsidiarity, supra note 52; Gil-Bazo, Refugee status, supra note 52 (citing Goodwin-Gill, Asylum: The Law and Politics of Change, 7 INT’L J. REF. L. 7 (1995)) (“The refugee in this broader sense includes not only those who have a well founded fear of persecution, but also those who have a substantial risk to be subjected to torture or to a serious harm if they are returned to their country of origin, for reasons that include war, violence, conflict and massive violations of human rights.”). However, among those who argue that the term “refugee” should be read liberally, some concede that there must still be some element of persecution in order to qualify, although collective persecution would suffice. 51 15 A. STATE PRACTICE EXPANDING THE DEFINITION As the international relations of states evolves, so to does the law, at least customary international law. It has been observed that increasingly “refugee” flows have been due to “civil wars, ethnic and communal conflicts and generalised violence, or natural disasters or famine – usually in combinations – than individually targeted persecution by an oppressive regime”.55 As states have shifted their behavior to respond to these crises, we must consider whether they have shifted their understanding of the definition of refugee under customary international law. It is accepted in the international legal system that binding international law can arise through custom.56 Discussion of sources commonly cites the Statute of the International Court of Justice for proof that “evidence of a general practice accepted as law” is law.57 Building on this definition of customary international law, courts have determined that this source of law has two elements: state practice and opinio juris sive necessitatis.58 State practice is usually defined as a widespread and consistent practice followed by states.59 Opinio juris is usually defined as a subjective belief on the part of the state engaging in the practice that the practice is required, not merely optional.60 Adrienne Millbank, Social Pol’y Group, The Problem with 1951 Refugee Convention Research Paper 5 2000-01 (Sept. 5, 2001) available at Parl. Aust’lia, Parl. Library, http://www.aph.gov.au/library/pubs/rp/200001/01RP05.htm. 56 See generally Statute of the International Court of Justice, art. 38, June 16, 1945; Statute of the Permanent Court of Justice, art. 38, Dec. 16, 1920; A. D’AMATO, THE CONCEPT OF CUSTOM IN INTERNATIONAL LAW (1971); HUGH THIRLWAY, INTERNATIONAL CUSTOMARY LAW AND CODIFICATION (1972); Int’l L. Assoc., Statement of Principles Applicable to the Formation of General Customary International Law, in INT’L L. ASSOC., REPORT OF THE SIXTYNINTH CONFERENCE, LONDON, 2000, 713 (2000). 57 See Statute of the International Court of Justice, June 16, 1945, art. 38(1)(b). 58 See e.g. Military & Paramilitary Activities in & ag. Nicaragua (Nicar. v. U.S.), Merits, 1986 I.C.J. Reps. 14 (June 27); N. Sea Cont. Shelf Cases (Germ./Den.) (Germ./Neths.), 1969 I.C.J. Reps. 3 (Feb. 20); Case Concerning Right of Passage Over Indian Territory (Port. v. Ind.), Merits, 1960 I.C.J. Reps. 6 (Apr. 12); Fisheries Case (U.K. v. Norw.), 1951 I.C.J. Reps. 116 (Dec. 18); Asylum Case (Colom./Peru), 1950 I.C.J. Reps. 266 (Nov. 20); Case of the S.S. “Lotus” (Fr. v. Turk.), P.C.I.J. Ser. A, No. 9 (Sept. 7, 1927). 59 See Asylum case, 1950 I.C.J. Reps. 276-7 (‘in accordance with a constant and uniform usage practised by the States in question’) (holding that state practices was lacking in the consistency and certainty required to constitute ‘constant and uniform usage’); IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 4-11 (5th ed., 1998). 60 See Nicaragua case, 1986 I.C.J. Reps. 14 for a new customary rule to be formed, not only must the acts concerned ‘amount to a settled practice’, but they must be accompanied by the opinio juris sive necessitatis. Either the States taking such action or other States in a position to react to it, must have behaved so that their conduct is ‘evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. 55 N. Sea Cont. Shelf cases, 1969 I.C.J. Reps. 3 an indispensable requirement would be that within the period in question, short though it might be, state practice, including that of states whose interests are specially affected, should have been both extensive and virtually uniform in the sense of the provision invoked, and should moreover have occurred in such a way as to show a general recognition that a rule of law or legal obligation is involved. Right of Passage case, 1960 I.C.J. Reps. 42-3; Asylum case, 190 I.C.J. Reps. 277; Lotus case, P.C.I.J., Ser. A, No. 10, 28 (“only if such abstention were based on their [the states] being conscious of a duty to abstain would it be possible to speak of an international custom”); MALCOLM N. SHAW, INTERNATIONAL LAW 75 (6th ed., 2008). 16 As for the first element of state practice, there is no set number of states that must engage in the practice before it becomes law. It is accepted that it does not need to be all states, just many of them.61 However, in the North Sea Continental Shelf cases, the International Court of Justice stated that the practice of “specially affected States” is the most significant practice.62 Which states will be specially affected will vary on a case-by-case basis, depending on the nature of the practice being examined.63 On this basis, we should note which states are specially affected by refugee flows and note their practice and opinio juris in particular. This article cannot hope to survey all states in the world to any satisfying degree of depth and certainty, but it can assess many of them, particularly those whose practice is representative of global practice. One of the first steps then is to identify those states that might be specially interested in refugee law. B. THE ROLE OF SPECIALLY INTERESTED STATES There are more than nine million individuals that the United Nations High Commissioner for Refugees has identified as “refugees” deserving protection. Of that number, the states in which the largest numbers of individuals have sought refuge are, beginning with the largest: • • • • 61 Syria64 Iran65 Pakistan66 Germany67 See Fisheries Case, 1951 I.C.J. Reps. 131, 138; CHARLES DE VISSCHER, THEORY AND REALITY IN PUBLIC INTERNATIONAL LAW 149 (rev. ed. 1968); HERSCH LAUTERPACHT, THE DEVELOPMENT OF INTERNATIONAL LAW BY THE INTERNATIONAL COURT 368 (1958). Also see generally 1 JEAN-MARIE HENCKAERTS & LOUISE DOSWALD-BECK, INT’L COMM. RED CROSS, CUSTOMARY INTERNATIONAL HUMANITARIAN LAW (2005) (hereinafter “HENCKAERTS & DOSWALD-BECK, CUSTOMARY IHL”) (surveying a selection of representative states for each point of law, which has been widely accepted as correctly stating the law on the matter). 62 1969 I.C.J. Reps. 43; SHAW, INTERNATIONAL LAW, supra note 60 at 80 (citing situations where the practice of only one or two states could be potentially determinative such as the practice of the UK regarding the law of the sea; and the practice of the US and USSR regarding space law). We might consider that if regional custom could be found, the usage in such a case would also presumably need to be widespread and consistent albeit only within the region. See e.g. N. Sea Cont. Shelf cases 1969 I.C.J. Reps. 43; Asylum case, 1950 I.C.J. Reps. 276–7 (requiring “constant and uniform usage”); HENCKAERTS & DOSWALD-BECK, CUSTOMARY IHL, supra note 61 at xliv; Int’l L. Assoc., Comm. on the Formation of Customary Int’l L., Mendelson, et al., Final Report of the Committee: Statement of Principles Applicable to the Formation of General Customary International Law (2000), Principle 14, Commentary (e). 63 HENCKAERTS & DOSWALD-BECK, CUSTOMARY IHL, supra note 61 at xliv. The International Committee of the Red Cross (“ICRC”) study gives examples of “specially affected” states in certain situations: Concerning the question of the legality of the use of blinding laser weapons, for example, “specially affected States” include those identified as having been in the process of developing such weapons. In the area of humanitarian aid, States whose population is in need of such aid or States which frequently provide such aid are to be considered “specially affected”. With respect to any rule of international humanitarian law, countries that participated in an armed conflict are “specially affected” when their practice examined for a certain rule was relevant to that armed conflict. Id. at xliv-xlv. 64 Syria hosts 1,503,769 refugees or persons in refugee-like situations on its territory. This number amounts to approximately 15% of the total global population of refugees or persons in refugee-like situations being present in a single state at one time. These numbers are those provided on the UNHCR website for statistics dated at the end of 2007 available at http://www.unhcr.org/statistics/49a2c7ff2.html. The particular chart containing this data is available at http://www.unhcr.org/static/statistical_yearbook/2007/annextables.zip. 65 963,546 persons or approximately 10% of the total global population of refugees. See id. 66 887,273 persons or approximately 9%. See id. 67 578,879 persons or approximately 6%. See id. 17 • • • • • • • • • • • • • • • • Jordan68 Tanzania69 China70 United Kingdom71 Chad72 United States of America73 Kenya74 Saudi Arabia75 Uganda76 Sudan77 Democratic Republic of the Congo78 Canada79 India80 France81 Nepal82 Thailand83 Perhaps states that experience significant numbers of refugees are “specially affected” in the North Sea Continental Shelf sense and thus more crucial to and representative in establishing the widespread practice and opinio juris necessary. Those states actually deal with more cases and experience the effects of their policies more directly (or conversely we can consider that evidence of state practice and opinio juris is not necessarily widespread unless it is undertaken by states that are the major recipients of refugees). Stated from a different perspective, perhaps the way that the majority of individuals in the world seeking refugee are treated, albeit by less than a majority of states, is more relevant in establishing custom by the way in which they define “refugee”. It is not entirely clear under international law whether representative states should also be geographically and culturally diverse in order to establish the existence of generally customary international law. Insofar as diversity may be necessary, we can note that the above list of states is already fairly diverse with perhaps South America being the one region that is not represented. Therefore, South American regional practice will also be addressed in the sections below to accommodate for its omission from the list of specially interested states above and ensure geographical diversity in the analysis. 500,281 persons or approximately 6%. See id. 435,630 persons or approximately 5%. See id. 70 301,078 persons or approximately 3%. See id. 71 299,718 persons or approximately 3%. See id. 72 294,017 persons or approximately 3%. See id. 73 281,219 persons or approximately 3%. See id. 74 265,729 persons or approximately 3%. See id. 75 240,742 persons. See id. 76 228,959 persons. See id. 77 222,722 persons. See id. 78 177,390 persons. See id. 79 175,741 persons. See id. 80 161,537 persons. See id. 81 151,789 persons. See id. 82 128,181 persons. See id. 83 125,643 persons. See id. The next ten states in order of the number of refugees seeking refuge on its territory are: Yemen (117,363 persons); Zambia (112,931); Serbia (97,995); Egypt (97,556); Algeria (94,137); Netherlands (86,587); Ethiopia (85,183); Sweden (75,078); Cameroon (60,137); and Rwanda (53,577). See id. 69 68 18 C. INTERNATIONAL AGREEMENTS DEFINING REFUGEE STATUS 1. The Organization of African Unity Convention on Refugees The 1969 Organization of African Unity Convention on the Specific Aspects of Refugee Problems in Africa expanded the definition of refugee in the Refugee Convention to include those fleeing “external aggression, occupation, foreign domination or events seriously disturbing public order”.84 Due to a lack of documentation on the drafting history of the OAU Convention, there has been considerable debate about the intention of the drafters, and speculation has been unhelpful.85 However, we can note that this instrument was signed by some of the largest recipients of refugees in the world, specifically: • • • • • • • • • • • • Tanzania (435,630 refugees and persons in refugee-like situations present on its territory, meaning that this state is in the top ten of refugee receiving countries) Chad (294,017 and in the top ten) Kenya (265,729 and in the top fifteen) Uganda (228,959 and in the top fifteen) Sudan (222,722 and in the top fifteen) Democratic Republic of the Congo (177,390 and in the top fifteen) Zambia (112,931 and in the top twenty) Egypt (97,556 and in the top twenty) Algeria (94,137 and in the top twenty) Ethiopia (85,183 and in the top twenty-five) Cameroon (60,137 and in the top twenty-five) Rwanda (53,577 and in the top twenty-five)86 In addition to these major recipients of refugees, the OAU Convention was also signed by Burundi, the Central African Republic, Congo, Gabon, Gambia, Ghana, Guinea, Côte d’Ivoire, Mali, Nigeria, Rwanda, and Sierra Leone, which are all in the upper half of states receiving the most numbers of refugees. States such as South Africa,87 Tanzania,88 and Uganda89 for example, have additionally adopted the OAU 84 Organization of African Unity Convention on the Specific Aspects of Refugee Problems in Africa, adopted by the Assembly of Heads of State and Government, Sept. 10, 1969, art. 1(2), 1001 U.N.T.S. 45 (entered into force June 20, 1974) (hereinafter “OAU Convention”). 85 See George Okoth-Obbo, Thirty Years On: A Legal Review of the 1969 OAU Refugee Convention Governing the Specific Aspects of Refugee Problems in Africa, 20(1) REF. STUD. Q. 79, para. 16; Micah Bond Rankin, Extending the limits or narrowing the scope? Deconstructing the OAU refugee definition thirty years on, UNHCR Working Paper on New Issues in Refugee Research 4 (Apr. 2005), available at http://www.unhcr.org/425f71a42.html. 86 See UNHCR website for statistics dated at the end of 2007 at http://www.unhcr.org/statistics/49a2c7ff2.html. 87 See Ruma Mandal, External Consultant, UNHCR, Dep’t of Int’l Protection, Prot. Pol’y & Legal Adv. Sec., Protection Mechanisms Outside of the 1951 Convention (“Complementary Protection”), Legal & Prot. Pol’y Research Ser., UN Doc. PPLA/2005/02, para. 238 (June 2005) available at http://www.unhcr.org/protect. (“In defining refugee status, section 3 of the 1998 Refugees Act incorporates the refugee definitions in Article 1A(2) of the 1951 Convention and Article I(2) of the 1969 OAU Convention (in sub-sections 3(a) and 3(b) respectively).”) 88 See id. at para. 242 (June 2005) (“Refugee status is defined in section 4 of the 1998 Refugees Act. Section 4(1)(a) incorporates the language of Article 1A(2) of the 1951 [Refugee] Convention while section 4(1)(b) adopts the text of Article I(2) of the 1969 OAU Convention. Section 4(4) of the Act incorporates the exclusion clause in Article 1F of the 1951 Convention, though some of these grounds are also included in the section 4(3) provision on cessation.”). Also note that Tanzania is the sixth highest recipient of refugees and persons in refugee-like situations. Thus, it may be considered specially interested. See supra note 92. 89 Refugees Act 2006, 24 May 2006, XCVIX Ug. Gaz. No. 47 (Aug. 4, 2006) (although apparently the status determination procedures are not yet implemented). Also see United States Committee for Refugees and Immigrants, 19 definition into municipal law. At the risk of repetition, the second of these states incorporating the Convention criteria, Tanzania, is the single highest recipient of refugees in Africa and the sixth highest recipient in the world. In addition to these refugee numbers which magnify the impact of the state practice of those states on the formation of customary international law, we should also note that Mexico has adopted into state law the definition established by the OAU convention.90 Clearly Mexico is under no obligation to adopt this definition from another region, but this act demonstrates a growing acceptance outside the region of the norms established by the region. In sum, the OAU Convention, although only binding states in the region under treaty law, has significantly contributed to the formation of a general rule of customary international law due to its highly representative nature of establishing the norms of treatment for a high percentage of the individuals seeking refuge in the world. 2. The Asian-African Legal Consultative Organization Bangkok Principles The Asian-African Legal Consultative Organization agreed in June 2001 on a set of principles concerning the treatment of refugees, known as the “Bangkok Principles”.91 Although they are not binding themselves,92 they could nonetheless serve as a source of opinio juris. The Bangkok Principles define a refugee as including essentially the same definition as under the Refugee Convention93 but also covering94 every 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 his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality. It has provisions similar to the Refugee Convention in other respects such as dual nationality95 and cessation/exclusion from the definition.96 It specifically accepts the concept of refugee sur place.97 It also World Refugee Survey 2009 - Uganda (June 17, 2009), available at http://www.unhcr.org/refworld/docid/4a40d2b5c.html (hereinafter “USCRI, Uganda”). 90 See Ley General de Población [General Law of Population], Diario Of. Jan. 7, 1974, as amended Diario Of. Nov. 8, 1996; Reglamento de la Ley General de Población [Regulations of the General Law of Population] Diario Of. Aug. 31, 1992; Manual de Trámites Migratorios del Instituto Nacional de Migración [Immigration Procedures Manual], Diario Of. Sept. 21, 2000. TMN-I-07 REFUGIADO (Fracción VI del artículo 42 de la LGP y 166 del RLGP) El extranjero que huyendo de su país de origen, para proteger su vida, seguridad o libertad, cuando haya sido amenazado por violencia generalizada, agresión extranjera, conflictos internos, violación masiva de derechos humanos u otras circunstancias que hayan perturbado el orden público, y que ingrese a territorio nacional … [TMN-I-07 REFUGEE … The foreigner who fleeing from his country of origin, to protect his life, security or freedom, when he has been threatened by generalized violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances that have disturbed the public order, and who enters national territory … (author’s translation)] discussed at Open Session: Governing Rules Project: Review and Discussion on the Movement of Persons Across Borders, Proc. of the 85th Ann. Mtg. of the Amer. Soc’y of Int’l L., 90 AM. SOC’Y INT’L L. PROC. 545 (Apr. 17-20, 1991). 91 Asian-Afr. Legal Consult. Org., Principles Concerning Treatment of Refugees, Dec. 31, 1966, adopted at the 40th Sess., June 24, 2001 (“Bangkok Principles”). 92 UNHCR, Exec. Comm., Note on International Protection, U.N. Doc. A/AC.96/951 (Sept. 13, 2001). 93 Bangkok Principles, art. I(1). 94 Bangkok Principles, art. I(2). 95 Bangkok Principles, art. I(5). 96 Bangkok Principles, arts. I(6) – (7). 20 provides that a “refugee” may not be expelled “to a State or Country where his life or liberty would be threatened for reasons of race, colour, nationality, ethnic origin, religion, political opinion, or membership of a particular social group.”98 A large number of specially interested states has adhered to the Bangkok Principles. Important to note is that this list of states includes the state with the single largest influx of refugees: Syria (1,503,769 or approximately 15% of the global population of refugees or persons in refugee-like situations). Following Syria, the Principles have also been signed by other major recipients of refugees: • • • • • • • • • • • • • • • • Iran (963,546 or approximately 10% of the world total) Pakistan (887,273 or approximately 9%) Jordan (500,281 or approximately 6%) Tanzania (435,630 or approximately 5%) (also party to the OAU Convention) PR China (301,078 or approximately 3%) Kenya (265,729 or approximately 3%) (also party to the OAU Convention) Saudi Arabia (240,742) Uganda (228,959) (also party to the OAU Convention) Sudan (222,722) (also party to the OAU Convention) India (161,537)99 Nepal (128,181) Thailand (125,643) Yemen (117,363) Zambia (112,931) Egypt (97,556) (also party to the OAU Convention) Cameroon (60,137) (also party to the OAU Convention) It is significant to note that all of the above states above are in the top twenty-five recipients of refugees.100 Additional states signing the Principles that fall within the top half of states receiving numbers of refugees are Bangladesh; Gambia (also party to the OAU Convention); Ghana (also party to the OAU Convention); Lebanon; Nigeria (also party to the OAU Convention); Senegal; Sierra Leone; and Turkey. The Bangkok Principles must be considered as significantly contributing to custom in the sense of providing a very strong statement of opinio juris by the major recipients of world refugee flows. 97 98 Bangkok Principles, art. I(3). Bangkok Principles, art. V(3). 99 However, it is important to note that India submitted a communication when adopting the Bangkok Principles. See Bangkok Principles, art. I, note 5: The Government of India is not in favour of the expanded definition of refugees given in para 2 of Article I. The definition drawn from Human Rights and humanitarian law instruments is too broad in its scope. The universally accepted criteria of “well-founded fear of persecution” should remain the core of the definition. Any expansion of the definition of refugees will have an adverse effect on promoting the concept of ‘durable solutions’ and may result in the weakening of protection afforded to genuine refugees. Also see Sec. III.E. infra, for further discussion of other aspects of India’s actual practice that may be inconsistent with this apparent statement of opinio juris. It may be that India was opposed to expanding the convention definition in the instrument purely because of the potential for weaking refugee integration into their host states, but is not opposed to engaging in practice supportive of an expanded definition. 100 See UNHCR website for statistics dated at the end of 2007 at http://www.unhcr.org/statistics/49a2c7ff2.html. 21 3. The Cartagena Declaration The 1984 Cartagena Declaration regarding forced migrants in Central and South America expresses the same as the foregoing documents, even going fo far as to explicitly refer to Article I(2) of the OAU Convention as inspiration for its definition of “refugee”, though the two texts do differ in some ways.101 Of specially interested Central and South American states, Costa Rica participated in the conference but has only received approximately 12,000 refugees, placing it almost in the top fifty states receiving refugees; Ecuador is certainly in the in top fifty recipient states, but did not participate in the conference; Brazil and Argentina are also important receiving states, though they have only received approximately 3,000 refugees each, and in any event they also did not participate. However, the Cartagena Declaration principles have been adopted into municipal law in both Brazil and Ecuador,102 despite the fact that neither state attended the conference or signed the instrument. In addition, the Declaration, though not legally binding in itself, has been endorsed by the Organization of American States, the UNHCR Executive Committee and by states party to the universal refugee treaties.103 Furthermore, the Declaration has been cited in turn by the Brasilia Declaration on the Protection of Refugees and Stateless Persons in the Americas, that was signed by Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Cuba, Dominican Republic, Ecuador, El Salvador, Guatemala, Mexico, Nicaragua, Panama, Paraguay, Peru, Uruguay, and Venezuela.104 The Brasilia Declaration “highlighted” the expansive regional definition of refugee,105 suggesting that the participants at the Brasilia Declaration Conference understood that an expansive legal See Cartagena Declaration on Refugees, adopted at the Colloquium on the International Protection of refugees in Central America, Mexico and Panama, in Cartagena, Colombia, 19 - 22 Nov. 1984, Concl. III, 5, reprinted in 2 UNHCR, COLLECTION OF INTERNATIONAL INSTRUMENTS AND OTHER LEGAL TEXTS CONCERNING REFUGEES AND DISPLACED PERSONS 206, 208 (1995). See Eduardo Arboleda, The Cartagena Declaration of 1984 and its Similarities to the 1969 OAU Convention – A Comparative Perspective, INT’L J. REF. L. 95 (Spec. Iss. Summer 1995). 102 See Refugee Law No. 9474/97, sec. 1(iii) (Braz.) (persons seeking refuge because of “serious and generalised violations of human rights”) (discussed in Mandal, Protection Mechanisms, supra note 87 (observing that “In practice, it seems that subsection (iii) is also considered to apply to situations of armed conflict and generalised violence.”); Pres. Decree 3301/92, arts. 1-2 (Ecuad.) (discussed in Mandal, Protection Mechanisms, supra note 87 (observing that “Since the beginning of 2003, only 36 out of 5772 individuals recognised as refugees were recognised on the basis of Article 2 of the Decree.”) 103 See 2001 Ministerial Declaration of States Parties to the 1951 Convention and/or 1967 Protocol; UNHCR Exec. Comm. Concl. No. 77 (1995); OAS GA Res. 1273 (XXIV–0/94) (June 10, 1994). 104 See Brasilia Declaration on the Protection of Refugees and Stateless Persons in the Americas, Brasilia, (Nov. 11, 2010) available at http://www.unhcr.org/4cdd3fac6.html (Canada and the US also attended the conference as observers). 105 See id.: Highlighting the contribution of the Americas to strengthen the protection of victims of forced displacement and stateless persons through the adoption of multilateral treaties on asylum, statelessness and human rights; 101 Admittedly, the states signing the Declaration also: RESOLVES: … 5. To promote accession in the hemisphere to the international instruments for the protection of refugees and, in this regard, to call on States that have not yet done so to consider speedy accession to these instruments. However, the fact that the states would resolve to promote accession to the instruments does not necessarily imply that they believe that the definition of refugee in those other instruments was not already binding under customary international law. Given the other statements suggesting that an expansive legal definition already applied, at least in the region, we cannot conclude otherwise. 22 definition already existed in the region, due to the formally non-binding Cartegna Declaration and supporting instruments. Based on these participants and other factors, and notwithstanding the merely declaratory nature of the document, the Cartagena Declaration does contribute to the crystallization of customary international law. 4. The Mercosur Rio de Janeiro Declaration Lastly, the Mercado común del sur (“Mercosur”), along with Bolivia and Chile, has also adopted the Rio de Janeiro Declaration on the Institution of the Refugee.106 This Declaration provides that “international protection should be given to individuals persecuted for reasons of race, nationality, religion, membership of a particular social group, political opinion or victims of serious and generalised violation of human rights”. Specifically, the states parties proclaimed that they “will study the possibility of including in the refugee definition the protection of victims of serious and generalised human rights violations” 107 and that they108 will not apply refoulement measures to a refugee who has been recognised in another Contracting or associate State, to a country where his life, freedom or physical integrity are threatened by reasons of race, nationality, membership of a particular social group, political opinion or serious and generalised violation of human rights, according to the international norms governing this issue. As noted above, Central and South American states are not as high on the list of states receiving refugees, so their practice may be less influential for the formation of customary international law, but insofar as it does express an opinio juris, it remains important. Furthermore, as observed above, representative states may also need to be geographically diverse to support a finding of the existence of customary international law so this consideration of South American policy becomes even more necessary, even if the states in the region cannot be strictly characterized as specially interested based on refugee flows. 5. Conclusion on the Role of International Agreements by Specially Interested States All of the foregoing conventions are expressly regional law or soft law, not universal conventional international law. However, each expresses the practice and/or opinio juris of some of the most important refugee receiving states in regards to dealing with refugee flows. The Declaration of States Parties to the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees in Geneva in 2001, affirmed “the importance of other human rights and regional refugee protection instruments”.109 It might be that obligations undertaken by states that are in a position to suffer the most by undertaking those obligations are signaling a stronger existence of opinio juris than states who will not suffer so much their undertakings. In this section we have only examined international agreements, but the state practice of specially interested states aside from participation in international agreements is important too. Now that we have identified the specially interested states, we will highlight those states where they appear in subsequent sections of this analysis. Based on the practice and opinio juris evidenced in these documents further defining “refugee” in their regions, and the fact that the relevant states are also specially interested one in regards to refugee flows, the instruments above potentially show that customary international law has supplemented and broadened the definition of “refugee”. Specifically, it appears that the general customary international law definition of refugee includes persons fleeing serious disturbances of public order. Bearing in mind this tentative conclusion, we turn next to the influence of subsidiary protection. 106 See Rio de Janeiro Declaration on the Institution of Refuge, Rio de Janeiro, Brazil, Nov. 10, 2000, translated and available at http://www.unhcr.org/refworld/pdfid/3de4f8982.pdf (hereinafter “Rio Declaration”). 107 See Rio Declaration, Proclam. 3. 108 See Rio Declaration, Proclam. 4. 109 Declaration of States Parties to the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, Geneva, para. 3 (Dec. 13, 2001). 23 D. THE INFLUENCE OF “SUBSIDIARY PROTECTION” IN INTERNATIONAL AGREEMENTS Whereas in the preceding section we examined the customary international legal definition of “refugee”, in this section we can consider whether subsidiary protection, i.e. protection available for persons under alternative international legal obligations who clearly fall outside the conventional definition of “refugee” governing in the relevant state, has expanded the customary international legal definition of refugee. It is admitted that many individuals do not qualify under the Refugee Convention, even when the Convention is applied dynamically, because there is no persecution (or no qualifying form of persecution), although those individuals may have other justifiable reasons for refusing to avail themselves of the protection of their state of nationality. This group of persons is often termed “de facto” refugees: their refuge needs are seen as legitimate but they do not qualify under the Convention. Their needs are often addressed through other agreements or legislation granting them a “subsidiary” status. The question for this section is whether the extension of subsidiary protection status to those individuals has created a wider notion under customary international law of “refugees” who are deserving of the non-refoulement and other protections substantively the same as those of the Refugee Convention. The Conference that negotiated the Refugee Convention specifically encouraged states to grant subsidiary protection to individuals not qualifying under the Refugee Convention.110 On this basis, we can interpret the intent of the drafters of the convention to express a desire to cover this expanded group of persons.111 When the EU was considering the minimum standards directive, the Presidency stated that the exclusion provision from subsidiary protection should be modeled on Article 1F of the Refugee Convention, but there was no legal obligation to follow the Refugee Convention terms for subsidiary protection.112 In addition, state courts have held that the definition of refugee remains that given in the Refugee Convention and has not been supplemented by humanitarian assistance to persons in need.113 However, we might next consider whether the practice of subsidiary protection, as a separate institution itself, has expanded the definition of refugee under customary international law. 110 See LOUIS B. SOHN & T. BUERGENTHAL, EDS., THE MOVEMENT OF PERSONS ACROSS BORDERS, 23 STUD. TRANSNAT’L L. POL’Y §13.02, p. 102 (1992) (“The 1951 Geneva Conference which adopted that [Refugee] Convention expressed at the same time the hope that ‘all nations will be guided by it in granting so far as possible to persons in their territory as refugees and who would not be covered by the terms of the [Refugee] Convention, the treatment for which it provides.’”) 111 See Final Act of the UN Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, 189 U.N.T.S. 37 excerpt reprinted in UNHCR HANDBOOK, Ann. I(E) THE CONFERENCE, Expresses the hope that the Convention relating to the Status of Refugees will have value as an example exceeding its contractual scope and that all nations will be guided by it in granting so far as possible to persons in their territory as refugees and who would not be covered by the terms of the Convention, the treatment for which it provides. 112 See EU Doc. 13623/02 Asile 59 (30 Oct. 2002) (Presidency note to SCIFA). But see Gil-Bazo, Refugee status, supra note 52 (observing that Sweden disagreed with the interpretation and sent its own competing proposal to SCIFA). Also note that Sweden might be a specially interested state, although it is less affected than some other states under consideration, see supra note 84. 113 Applicant A. & Anor. v. Min. Immigr. & Ethnic Aff’rs & Anor., [1997] H.C.A. 4; (1997) 190 C.L.R. 225; 142 A.L.R. 331 (High Ct., Aust’lia, Feb. 24, 1997) (Gummow, J.) [w]hilst as a matter of ordinary usage, a refugee might be one whose flight has been from invasion, earthquake, flood, famine or pestilence, the definition is not concerned with such persons. Accordingly, care is needed in resolving any apparent obscurity in the text of the definition by seeing the definition as reflecting, in a broad sense, humanitarian concerns for displaced persons. 24 Certain treaties call for subsidiary protection. Most notably, the International Covenant on Civil and Political Rights (“ICCPR”)114 and 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”)115 prohibiting refoulement “where there are substantial grounds for believing that he would be in danger of being subject to torture (Art. 3)” There are no exceptions for national security to the CAT or ICCPR obligations of non-refoulement to situations of torture.116 The ECHR establishes a similar protection requirement where there is a “real risk” that the See ICCPR, arts. 6-7; Hum. Rts. Comm. (ICCPR), Gen. Comm. No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, para. 12 (Mar. 29, 2004); Hum. Rts. Comm., (ICCPR), Gen. Comm. No. 20: Prohibition of Torture and Cruel Treatment or Punishment, para. 9 (Mar. 10, 1992); Hum. Rts. Comm., Concluding Observations on the Netherlands, UN Doc. CCPR/CO/72/NET, para. 11 (Aug. 27, 2001) (women should not be sent back to states where they are likely to be subjected to forced female genital mutilation); Judge v. Can., UN Doc. CCPR/C/78/D/1086/2002 (Hum. Rts. Comm., Aug. 4, 2003) (expelling or extraditing a person to another State where he or she would face the death penalty); C. v. Aust’lia, UN Doc. CCPR/C/76/D/990/1999 (Hum. Rts. Comm., Oct. 28, 2002) (person should not be returned to a country where his illness, which was in whole or in part caused by the State party’s violation of his rights, cannot be treated); Kindler v. Can., UN Doc. CCPR/C/48/D/470/1991, para.13.2 (Hum. Rts. Comm., Nov. 5, 1993) (the removal of a person within its jurisdiction, and the necessary and foreseeable consequence is a violation of that persons’ rights under the Covenant in another jurisdiction, the State party itself may be in violation of the Covenant). Note that Pakistan, a specially interested state, see supra note 67, is a party to the ICCPR. 115 See CAT, art. 3; Dadar v. Can., Comm. No. 258/2004 (Comm. Ag. Torture, Dec. 5, 2005); T.A. v. Swed., Comm. No. 226/2003 (Comm. Ag. Torture, May 27, 2005); Rios v. Mex., Comm. No. 133/1999 (Comm. Ag. Torture, Dec. 17, 2004); Karoui v. Swed., Comm. No. 185/2001 (Comm. Ag. Torture, May 8, 2002); A.S. v. Swed., Comm. No. 149/1999 (Comm. Ag. Torture, Nov. 6, 1999); Elmi v. Aust’lia, Comm. No. 120/1998 (Comm. Ag. Torture, May 14, 1999); Haydin v. Swed., Comm. No. 101/1997 (Comm. Ag. Torture, Nov. 20, 1998); Korban v. Swed., Comm. No. 88/1997 (Comm. Ag. Torture, Nov. 16, 1998); Ayas v. Swed., Comm. No. 97/1997 (Comm. Ag. Torture, Nov.12, 1998); A.F. v. Swed., Comm. No. 89/1997 (Comm. Ag. Torture, Sept. 3, 1997); Aemei v. Switz., Comm. No. 34/1995 (Comm. Ag. Torture, May 9, 1997); Paez v. Swed., Comm. No. 39/1996 (Comm. Ag. Torture, Apr. 28, 1997); Tala v. Swed., Comm. No. 43/1996 (Comm. Ag. Torture, Nov. 15, 1996); Kisoki v. Swed., Comm. No. 41/1996 (Comm. Ag. Torture, May 8, 1996); Khan v. Can., Comm. No. 15/1994 (Comm. Ag. Torture, Nov. 15, 1994); Mutombo v. Switz., Comm. No. 13/1993, (Comm. Ag. Torture, Apr. 27, 1994). 116 See Suresh v. Can. (MCI), [2002] S.C.C. 1, para. 78 (Can. Sup. Ct., Jan. 11, 2002) (reaching the opposite conclusion: “We do not exclude the possibility that in exceptional circumstances, deportation to face torture might be justified”); but see UN Comm. Ag. Torture, Conclusions and Recommendations of the Committee Against Torture: Canada, 34th sess., UN Doc. CAT/C/CO/34/CAN, para. 4(a) (May 2004) (criticizing the Suresh decision); UN Hum. Rts. Comm., 85th sess., UN Doc. CCPR/C/CAN/CO/5 at 15 (Oct.-Nov. 2005) (“The State party should recognize the absolute nature of the prohibition of torture, cruel, inhuman or degrading treatment, which in no circumstances can be derogated from.”) Note that Syria and Pakistan, specially interested states, see supra notes 65 and 67, are parties to the CAT 114 25 person will be subject to inhuman or degrading treatment and punishment.117 The American and African Charters make similar provisions for torture.118 European Union law also makes provision for an expanded class of persons in need. The EU Minimum Standards Directive orders EU member states to receive an asylum application if filed.119 The EU Council Directive of April 29, 2004 also orders subsidiary protection for any person who cannot return to the country of origin because of serious harm, which consists of (a) 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 See Eur. Conv. Hum. Rts. & Fund. Freedoms, Nov. 4, 1950, art. 3, 213 U.N.T.S. 221 (hereinafter “ECHR”) (absolute prohibition against torture or inhuman or degrading treatment or punishment); H.L.R. v. Fr., 27 E.H.R.R. 29 (Eur. Ct. Hum. Rts., 1998); Chahal v. U.K., Appl. No. 22414/93, 23 E.H.R.R. 413 (1996) (Eur. Ct. Hum. Rts., 1996); Vilvarajah v. UK, 14 E.H.R.R. 248 (1991); Cruz Varas v. Swed., Appl. No. 15576/89, 14 E.H.R.R. 1. (1991) (Eur. Ct. Hum. Rts., 1991); Soering v. U.K., Appl. No. 14038/88, 11 E.H.R.R. 439 (1989) (Eur. Ct. Hum. Rts., 1989. Also see Agbonlahor v. Min. Just., Equality & L. Reform, Jud. Rev., [2007] I.E.H.C. 166 (High Ct., Ire., Apr. 18, 2007) reprinted at ILDC 820 (IE 2007) (no violation of Article 8 of the ECHR based on argument for a right to remain in a state to continue to benefit from medical, social, or other forms of assistance); R. v. Spec. Adj’tor ex parte Ullah; Do v. Sec’y St. Home Dep’t, [2004] U.K.H.L. 26, [2004] 2 A.C. 323, [2004] 3 W.L.R. 23, [2004] 3 All E.R. 78 (U.K. H. Lords, June 17, 2004) (Bingham, L) reprinted at ILDC 103 (UK 2004) (claim for protection against removal based on a provision in the ECHR other than art 3 (torture) with only requires a real risk of violation, such as art. 9 (right to freedom of religion) must be flagrant denial or gross violation of those rights such that the right was completely denied or nullified in the destination country). Also see additionally Elgafaji v. Staatssecretaris van Justitie, Case No. C-465/07 (Neths.) (Eur. Ct. Just., Jan. 17, 2009). 118 See Am. Conv. Hum. Rts. (“Pact of San José, Costa Rica”), Nov. 22, 1969, Org. Am. States, arts. 13, 22, O.A.S.T.S. No. 36, 1144 U.N.T.S. 123 reprinted at 9 INT’L L. MATS. 99; Afr. Chtr Hum. & People’s Rts., Jun. 27, 1981, Org. Afr. Unity, art. 5, O.A.U. Doc. CAB/LEG/67/3 rev. 5, 1520 U.N.T.S. 363 reprinted at 21 INT’L L. MATS. 58 ; Modise v. Botsw., Comm. No. 97/93 (Afr. Comm’n Hum. & People’s Rts., 2000). 119 See E.U. Council Dir. 2001/55/EC on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and measures promoting a balance of efforts between Member states in receiving such persons and bearing the consequences thereof, art. 17, O. J. 2001 L 212/12 (July 20, 2001). Also see • • Austria, Asylum Act 2005, Bundesgesetzblatt (“BGBl”) [Legal Gazette] I no. 100/2005 (providing for subsidiary protection) Belgium, see generally ECRE, ECRE Country Report 2005 (2006), available at http://www.ecre.org/files/ECRE%20Country%20Report%202005rev.pdf (hereinafter “ECRE Country Report 2005”) (“In July 2006 the Belgium Parliament approved a proposed reform of the asylum procedure, which also included the introduction of a new subsidiary status into Belgium legislation.”) Czech Rep., Amendment 57/2005, Coll. of 4.2.2005 (implementing E.U. Council Dir. 2003/9/EC regarding minimum standards for the reception of asylum seekers) Ireland, see generally ECRE Country Report 2005, supra (“In April 2005 the Department of Justice, Equality and Law Reform in Ireland published a discussion document outlining the proposals for the upcoming Immigration and Residency Bill. Also included is a proposal for a single protection procedure to be implemented in Ireland with a view to transposing the Qualification Directive [infra]. If implemented this will be the first time Ireland will consider complementary/subsidiary protection issues outside of the current Ministerial discretionary process at deportation stage. “) Luxembourg, see generally ECRE Country Report 2005, supra (“In Luxembourg, the new law on asylum and complementary protection passed in May 2006 introduced subsidiary protection, tolerated status and temporary protection”) Slovakia, see generally ECRE Country Report 2005, supra (“There is no real form of subsidiary protection in the Slovak Republic as yet. It shall however be introduced by the transposition of the qualification directive into Slovak law by October 2006.”) Spain, Regulation implementing the Asylum Law, art. 31.3 117 • • • • • 26 international or internal armed conflict”.120 Of course, these directives override EU Member State law if not already in conformity with it.121 Having just recently become legally binding in EU law, we must also consider the Charter of Fundamental Rights of the European Union.122 The Charter also provides for certain rights to subsidiary protection insofar as those rights arise from the constitutional traditions and international obligations common to the Member States.123 How this will be specifically interpreted remains to be seen, but we do see an expression of opinio juris that those Charter protections should be binding. Also note the European Social Charter which provides that migrant workers lawfully residing within the territories of the State parties shall not be expelled unless they endanger national security or offend against public interest or morality.124 Refugees might conceivably fall in this category if they initially came to the state party as a migrant worker and subsequently become a refugee sur place. In sum, additional sources of international law such as the ICCPR, CAT, ECHR and EU law have mandated the treatment of certain individuals in need, beyond the narrow terms of the Refugee Convention. They have not expressly sought to supplement the definition of “refugee”, in contrast to the OAU and Cartagena instruments, but they have effectively required refugee-like treatment. The fact that they expressly create subsidiary bases for protection, rather than amend the Refugee Convention, could, however, suggest that the drafters intended to preserve the Convention definition of refugee as as separate institution, and thus hold an opinio juris that the definition was not being expanded. At a minimum, these instruments contribute to a supplementary protection regime under customary international law that would provide non-refoulement for individuals who would suffer torture, inhuman or degrading treatment and punishment. Possible additional grounds might be imposition of the death penalty and indiscriminate violence, although those grounds are less widespread. Next we will turn to municipal law and its contribution to the formation of customary international law. E. THE INFLUENCE OF MUNICIPAL LAW Moving from international legal obligations to provide subsidiary protection to municipal legal provisions for other forms of subsidiary protection, we can observe that states tend to, at a minimum, adopt provisions for refuge in their municipal law that track the 1951 Convention definition.125 However, states have also adopted regional definitions, such as the OAU or Cartegna definitions, into state law126 and in See E.U. Council Dir. 2004/83/EC 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 (Apr. 29, 2004), O.J. L 304/12 (Sep. 30, 2004) (hereinafter “Qualif. Dir.”) 121 See Costa v. Enel, Case 6/64 [1964] E.C.R. 585, (Eur. Ct. Just., 1964) (establishing the primacy of European Community law over the law of the Member States). 122 O.J. C/364/1 (2000), incorporated into Treaty Establishing a Constitution for Europe, O.J. C/314/1 (2004). 123 See id. at prmbl. 124 See Eur. Soc. Chtr, Oct. 18, 1961, Council of Eur., art. 19, C.E.T.S. 035. 125 See e.g. 8 U.S.C. § 1101(a)(42)(A); 8 C.F.R. § 1208.13(a); Tesfamchiael & Tessema-Damte v. Gonzalez, A977476-471, Case No. 04-61180 (5th Cir., Oct. 24, 2006) (To qualify for asylum, an alien must be a “refugee.”); Migration Act, 1958 (Cth) (Australia). 126 See LOUIS B. SOHN & T. BUERGENTHAL, EDS., THE MOVEMENT OF PERSONS ACROSS BORDERS, 23 STUD. TRANSNAT’L L. POL’Y §13.03, 103-104 (1992) State practice has also demonstrated support for a broader concept of ‘refugee.’ Many States admit refugees fleeing from conditions other than persecution, either by statute or simply on an ad hoc basis. For instance, in the 1991 report to the U.N. General Assembly, the United Nations High Commissioner for Refugees noted, in relation to the definition of ‘refugee’: [D]uring the period under review the Mexican Government passed internal asylum legislation recognizing the status of “refugees; the meaning given to the term ‘refugee’ being that contained in the Cartagena Declaration, already applied on a de facto basis to asylum seekers in the 120 27 this respect may evidence an opinio juris of the binding nature of the regional definition. The Cartagena Declaration principles have been adopted into municipal law in Brazil127 and Ecuador128 and the OAU definition has been adopted into municipal law in South Africa,129 Tanzania,130 and Uganda.131 Interestingly in the case of Mexico, as mentioned above, it has also adopted into municipal law the broader definition established by the OAU convention.132 1. Municipal Law and Practice Concerning Refugee Status Firstly, we can examine the municipal law specifically of those states that have been identified as specially interested. Syria was identified above as a specially interested state above,133 and is perhaps the most specially interested. It is signatory to the Bangkok Principles134 and its constitution provides for protection for political refugees.135 However, Syria informally permits the UNHCR to perform refuigee status determinations on its behalf, resulting in prima facie recognition of refugee status by Iraqi applicants hailing from the central or southern regions of Iraq and the issuance of asylum-seeker documentation to applicants from the Kurdish-controlled northern region.136 Syria appears to still be in the midst of reforming its refugee policies, but is doing so under the guidance of the Swiss Government and the UNHCR.137 These actions could suggest state practice and opinio juris that UNHCR definitions of refugee are obligatory. Iran is also a specially interested state.138 It is a party to the Refugee Convention, and has adopted the Convention definition into its municipal law.139 Iran has, however, not clearly complied with the requirements of the Convention based on its lack of transparency in refugee status determination and expulsion of refugees for violating technical requirements of area of registration.140 However, it is a region by many Latin American countries. This protection takes the form of temporary or, less often, permanent refuge or political asylum. See Refugee Law No. 9474/97, sec. 1(iii) (adopting language from the Cartagena Declaration: “serious and generalised violations of human rights”); Mandal, Protection Mechanisms, supra note 87 (In practice, it seems that subsection (iii) is also considered to apply to situations of armed conflict and generalised violence.”) 128 See Pres. Decree 3301/92, arts. 1 – 2. 129 See Mandal, Protection Mechanisms, supra note 87 at para. 238 (“In defining refugee status, section 3 of the 1998 Refugees Act incorporates the refugee definitions in Article 1A(2) of the 1951 [Refugee] Convention and Article I(2) of the 1969 OAU Convention (in sub-sections 3(a) and 3(b) respectively).”) 130 See id. at para. 242 (“Refugee status is defined in section 4 of the 1998 Refugees Act. Section 4(1)(a) incorporates the language of Article 1A(2) of the 1951 [Refugee] Convention while section 4(1)(b) adopts the text of Article I(2) of the 1969 OAU Convention. Section 4(4) of the Act incorporates the exclusion clause in Article 1F of the 1951 [Refugee] Convention, though some of these grounds are also included in the section 4(3) provision on cessation.”) (internal citations omitted). Also note that Tanzania is the sixth highest recipient in the world of refugees and persons in refugee-like situations. Thus, it may certainly be considered specially interested. See supra note 92. 131 Refugees Act 2006, 24 May 2006, XCVIX Ug. Gaz. No. 47 (Aug. 4, 2006). Although apparently the status determination procedures are not yet implemented, see USCRI, Uganda, supra note 89. 132 See supra note 90. 133 See supra note 65. 134 See supra sec. III.3.C.ii. 135 Constitution, Mar. 13, 1973. 136 See USCRI, World Refugee Survey 2009 - Syria, (June 17, 2009), available at http://www.unhcr.org/refworld/docid/4a40d2b3a.html (hereinafter “USCRI, Syria”). 137 See id. 138 See supra note 66. 139 See Constitution, Oct. 24, 1979, as amended July 28, 1989; Regulations relating to Refugees (1963). 140 United States Committee for Refugees and Immigrants, World Refugee Survey 2009 – Iran (June 17, 2009) available at http://www.unhcr.org/refworld/docid/4a40d2a84a.html (hereinafter “USCRI, Iran”) 127 28 signatory of the Bangkok Principles141 and it permits the UNHCR to conduct refugee status determinations on its territory.142 Pakistan, 143 although not a party to the Refugee Convention and not having municipal legislation on point, has delegated the refugee status determination procedure to the UNHCR, at least for Afghans seeking refuge144 (although individuals with that nationality constitute the single largest group of refugees in Pakistan) and thus, may be considered to have expressed an opinio juris positively regarding the expansive practice of the UNHCR. In addition, Pakistan is a party to the ICCPR and CAT, as noted above, and a signatory of the Bangkok Principles.145 Germany,146 the UK147 and France148, are all specially interested states. They, and all other member states of the EU, are bound to comply with European legislation on refugees, so the policies of the EU are clearly supported by the practice of specially interested states. In addition, European states widely comply with UNHCR recommendations, so in those cases UNHCR recommendations supported by state compliance could be evidence of opinio juris and also state practice.149 See supra sec. III.3.C.ii. Reports on Iran’s working relationship with UNHCR are mixed with some reports documenting active hindering of the efforts of UNHCR, but there appears to be a trend towards increasing cooperation and a wider degree of freedom of action for UNHCR to operate than in the relatively recent past. An exception is sometimes Afghan refugees, although that situation as well has shown considerable improvement in recent years in terms of permitting UNHCR to act on its mandate within Iran without significant obstacles. Cf. USCRI, Iran supra note 140 (reporting on the situation in 2009) with USCRI, World Refugee Survey 2007, Iran (July 2007) available at http://www.refugees.org/countryreports.aspx?id=2001 (reporting on the situation two years earlier): 142 141 …Iran honored UNHCR’s return advisory, which held that conditions in Iraq were not conducive to mass returns, for its 54,400 Iraqi refugees. The Government also reported hosting some 30,000 refugees of various nationalities (including Tajiks, Bosnians, Azeris, Eritreans, Somalis, Bangladeshis, and Pakistanis) but did not allow UNHCR access to them or to any information about them and turned away asylum seekers who sought interviews with BAFIA. During 2005 and 2006, Iran reregistered 940,000 Afghan refugees who had initially registered in 2001 or earlier, but did not reregister more recent arrivals. In March, Iran agreed to extend its agreement with UNHCR and Afghanistan for the repatriation of Afghan refugees for another year. … Few international humanitarian agencies operated in the country as the Government restricted their operations and did not allow UNHCR to fund them. The Government did not allow UNHCR or nongovernmental organizations access to the 30,000 Tajik, Bosnian, Azeri, Eritrean, Somali, Bangladeshi, and Pakistani refugees it reported hosting. Comparing the situation in the quote immediately above from the 2007 report and the text from the 2009 report two years later, the situation appears to be improving. 143 See supra note 67 for analysis of status as a specially interested state. 144 A Tripartite Agreement between the Governments of Pakistan and Afghanistan and UNHCR regulates the management of registered Afghans. See Reliefweb, Pakistan: New refugee agreement honours principle of voluntary repatriation (Mar. 17, 2003) available at http://wwww.reliefweb.int/rw/rwb.nsf/AllDocsByUNID/8b0dbd25bd463d4485256cec007efa20; UNHCR, UNHCR and Pakistan sign new agreement on stay of Afghan refugees (Mar. 13, 2009), available at http://www.unhcr.org/49ba5db92.html; USCRI, World Refugee Survey 2009 – Pakistan (June 17, 2009), available at http://www.unhcr.org/refworld/docid/4a40d2af1cc.html (hereinafter “USCRI, Pakistan”) 145 See supra sec. III.3.C.ii. 146 See supra note 68 for analysis of status as a specially interested state. 147 See supra note 72 for analysis of status as a specially interested state. 148 See supra note 82 for analysis of status as a specially interested state. 149 USCRI, World Refugee Survey 2009 - Europe, 17 June 2009, available at http://www.unhcr.org/refworld/docid/4a40d2a6c.html (hereinafter “USCRI, Europe”). 29 Jordan150 is also not party to the Refugee Convention. However, it does have a definition in its Constitution covering political refugees151 and has signed the Bangkok Principles.152 In addition, Jordan has signed an MOU providing for refugees recognized as such by the UNHCR will be permitted to enjoy that status in Jordan for six months, during which time, the UNHCR will locate countries for resettlement.153 Even if those persons are not resettled in that time frame, Jordan appears to continue respecting the UNHCR determination and permitting the refugees to remain on its territory.154 This practice suggests recognition and acceptance – possibly constituting state practice and/or opinio juris – that the UNHCR’s definition is correct, and is all the more significant as evidence of customary international law in that Jordan is not a party to the Refugee Convention and yet is a specially interested state. Tanzania155 is a party to the Refugee Convention, as well as the OAU Convention, noted above, in addition to being a signatory of the Bangkok Principles.156 Although, its commitment to living up to those standards has been questioned, there does not appear to be any effort by Tanzania to articulate any failure as contributing to the formation of a new norm of customary international law.157 The practice of Tanzania is to permit the UNHCR to observe its screening procedures for applicants for refugee status, and to intervene in the processing with legal argument.158 When Tanzania proposed to return massive numbers of Rwandan refugees, it did so with UNHCR approval.159 As with the other states noted above, this practice suggests that Tanzania may hold an opinio juris that involvement and standards applied by the UNHCR are obligatory. China160 is a party to the Refugee Convention and its municipal law provides asylum for political reasons,161 although it is unclear whether this practice is actually carried out.162 China is additionally a signatory of the Bangkok Principles.163 Although China does permit UNHCR to conduct status determinations on its behalf, it prohibits UNHCR from doing so near the border with North Korea.164 The practice and opinio juris we can draw from this policy is more ambiguous, although it could be seen as supportive of the UNHCR definition of refugee generally, similarly to the analysis of other states above. Chad165 is a party to the Refuge Convention and the OAU Convention, and its municipal law provides for asylum and protection of political refugees.166 Chad has also agreed to a MOU with the UNHCR See supra note 69 for analysis of status as a specially interested state. See Constitution, Jan. 1, 1952, art. 21. 152 See supra sec. III.3.C.ii. 153 See Memorandum of Understanding, Jord. – UNHCR, 1998. 154 USCRI, World Refugee Survey 2009 – Jordan (June 17, 2009), available at http://www.unhcr.org/refworld/docid/4a40d2aac.html (hereinafter “USCRI, Jordan”). 155 See supra note 70 for analysis of status as a specially interested state. 156 See supra sec. III.3.C. 157 See Amnesty Int’l, Great Lakes Region Still in Need of Protection: Repatriation, Refoulement and the Safety of Refugees and the Internally Displaced, A.I. Index AFR 02/07/97 at 2 (Jan. 1997) (hereinafter “Amnesty Int’l, Great Lakes Region”). 158 See USCRI, World Refugee Survey 2009 – Tanzania (June 17, 2009), available at http://www.unhcr.org/refworld/docid/4a40d2b383.html (hereinafter “USCRI, Tanzania”) 159 See e.g. Amnesty Int’l, Great Lakes Region, supra note 157 at 2; Amnesty Int’l, Rwanda: Human rights overlooked in mass repatriation, AI Index: AFR 47/02/97 (Jan. 1997). 160 See supra note 71 for analysis of status as a specially interested state. 161 See Constitution, Dec. 4, 1982, art. 32. 162 See USCRI, World Refugee Survey 2009 – China (June 17, 2009), available at http://www.unhcr.org/refworld/docid/4a40d2a3c.html (hereinafter “USCRI, China”). 163 See supra sec. III.3.C.ii. 164 See USCRI, China, supra note 162. 165 See supra note 73 for analysis of status as a specially interested state. 151 150 30 specifically providing for non-refoulement.167 In 2007, the UNHCR and Chadian Government jointly proposed a draft law on asylum for Chad, but the draft was not approved, so the country still lacks legislation on point.168 Chad is, however, recognizing individuals fleeing from the violence in Darfur and the Central African Republic as prima facie refugees, with the condition that they remain in the refugee camps.169 Those leaving camps may have individualized refugee status determinations, apparently applying the definition in the Refugee Convention and OAU Convention.170 This practice suggests that Chad considers individuals fleeing generalized violence and instability as refugees. The United States is also a specially interested state. 171 It is not a party to the Refugee Convention, although it is somewhat incongruously a party to the Refugee Protocol and the CAT. Nonetheless, the US applies the definition provided in the Refugee Covention in its municipal law, though merging the recognition of status and benefit of non-refoulement with the application for asylum.172 It exempts terrorists and those providing “material support” to terrorists from eligibility for refuge/asylum, although some exceptions have been introduced, and also exempts those that commit “aggravated felonies” from non-refoulement or a grant of asylum.173 Based on these policies, the US appears to have the policy and opinio juris that the conventional definition of refugee applies possibly alternatively through customary international law. Kenya174 is party to the Refugee Covention and the OAU Convention, as well as having signed the Bangkok Principles.175 It has furthermore adopted a refugee law,176 but it is unclear whether that law has or needs to have implementing regulations in order to be legally binding internally. 177 However, the UNHCR has received the delegated authority to administer refugee status determinations and operate refugee camps.178 Based on these practices, Kenya appears to have the practice and opinio juris that the broader notion of refugee in the OAU Convention is the legal defintion of refugee. Saudi Arabia179 is not a party to the Refugee Convention and reserves the right to grant political asylum only where the public interest is served.180 There does not appear to be any implementing legislation codifying this policy and, in the interim, the policy is very restrictively applied.181 However, Saudia See supra sec. III.3.C. Also see Constitution, Mar. 31, 1996, art 46. See Memorandum of Understanding, Chad – UNHCR, reported in USCRI, World Refugee Survey 2009 - Chad (June 17, 2009), available at http://www.unhcr.org/refworld/docid/4a40d2a271.html (hereinafter “USCRI, Chad”) 168 See USCRI, Chad, supra note 167. 169 See id. 170 See id. 171 See supra note 74 for analysis of status as a specially interested state. 172 See Immigr. & National’ty Act, sec. 208(b). 173 See id. 174 See supra note 75 for analysis of status as a specially interested state. 175 See supra sec. III.3.C. 176 See Refugees Act, 2006, Keny. Gaz. Suppl. No. 97, Spec. Iss. (Acts No. 13) 437 (Jan. 2, 2007). 177 See USCRI, World Refugee Survey 2009 – Kenya (June 17, 2009), available at http://www.unhcr.org/refworld/docid/4a40d2aa76.html (hereinafter “USCRI, Kenya”) (reporting that there was no Minister for Immigration and Registration of Persons and no regulations in force, although there was a Commissioner for Refugee Affairs who is legally vested with the authority to make refugee status determinations). 178 See id. 179 See supra note 76 for analysis of status as a specially interested state. 180 See Basic Law, Royal Decree No. A/90, art. 42 (27/8/1412 AH) [Jan. 31, 1992]. 181 USCRI, World Refugee Survey 2009 - Saudi Arabia (June 17, 2009), available at http://www.unhcr.org/refworld/docid/4a40d2b071.html (hereinafter “USCRI, Saudi Arabia”) (reporting that recognition of refugee status and/or grants of asylum are only accepted from individuals legally admitted and in possession of a durable residence permit). 167 166 31 Arabia has signed the Bangkok Principles182 and has furthermore agreed to a MOU with the UNHCR183 providing UNHCR with the authority to conduct refugee status determinations on its behalf. Although the practice and opinio juris of Saudi Arabia therefore is mixed, there appears to be some acknowledgement that the practice and opinio juris of the UNHCR is the appropriate standard. Uganda184 is party to the Refugee Convention and the OAU Convention, as well as a signatory of the Bangkok Principles,185 and has adopted the more liberal definition of refugee provided therein into its municipal legislation.186 Sudan187 is a party to the Refugee Convention and the OAU Convention, and a signatory of the Bangkok Principles,188 and has adopted the more broad definition in the OAU Convention and Bangkok Principles into its municipal law.189 The express terms of the municipal legislation do not provide for nonrefoulement, although it does appear to be granted in practice. 190 Also, Sudan permits the UNHCR to monitor, but not intervene in, its refugee status determinations.191 Although the practice and opinio juris are mixed here, there does appear to be a general practice and opinio juris in favor of the OAU definition, but not as broad as the expanded UNHCR mandate of protection. The Democractic Republic of the Congo (“DR Congo”)192 is party to the Refugee Convention and the OAU Convention, and has adopted those definitions into municipal law.193 Independent reports from the region confirm that refoulement for the OAU Convention class of refugee is not practiced.194 Yet again, this practice suggests an opinio juris that the OAU Convention defintion is the applicable standard. That being said, Amnesty International submits the case of the massive return of Rwandan refugees, apparently by force, although it was argued to be a violation of international law.195 Not only is it unclear whether this was a violation, the DR Congo does not appear to argue that this act is constitutive of custom. The issue with the DR Congo appears to be one of the forcible means of return, not qualification as a refugee. Canada196 is party to the Refugee Convention and CAT, and has implemented those obligations into municipal law.197 Canada has also suspended all deportations (aside from individuals constituting a security or criminal threat) to Afghanistan, Burundi, DR Congo, Haiti, Iraq, Liberia, Rwanda, and Zimbabwe,198 which could suggest an opinio juris that return to situations of instability is not permissible. Furthermore, Canada accepts refugees for resettlement, to some degree based on UNHCR classification.199 See supra sec. III.3.C.ii. See Memorandum of Understanding, S.Arabia – UNHCR, 1993. 184 See supra note 77 for analysis of status as a specially interested state. 185 See supra sec. III.3.C. 186 Refugees Act 2006, 24 May 2006, XCVIX Ug. Gaz. No. 47 (Aug. 4, 2006) (although apparently the status determiantion procedures are not yet implemented). See USCRI, Uganda, supra note 89 187 See supra note 78 for analysis of status as a specially interested state. 188 See supra sec. III.3.C. 189 See Regulation of Asylum Act 1974, May 21, 1974, sec. 2, SDN-115, Dem. Rep . Sudan Gaz. No. 1162 at 183-6 (June 15, 1974). 190 See USCRI, World Refugee Survey 2009 - Sudan (June 17, 2009), available at http://www.unhcr.org/refworld/docid/4a40d2b285.html. 191 See id. 192 See supra note 79 for analysis of status as a specially interested state. 193 See Refugee Law of 2002 reported in USCRI, US Committee for Refugees and Immigrants World Refugee Survey 2006 - Congo-Kinshasa, (June 17, 2006), available at http://www.unhcr.org/refworld/docid/4496ad0912.html. 194 See id. 195 See Amnesty Int’l, Great Lakes Region, supra note 157 at 3. 196 See supra note 80 for analysis of status as a specially interested state. 197 See Immigration and Refugee Protection Act, S.C. 2001, c. 27. 198 See USCRI, World Refugee Survey 2009 - Canada (June 17, 2009), available at 183 182 32 India200 is not a party to the Refugee Convention and appears not to have a law on refugees, although it indirectly provides for refugee status based on its national constitutional principles.201 In addition, it has served on the UNHCR’s Executive Committee and has signed the Bangkok Principles.202 Notwithstanding is formal denial of refugee status, India does practice a policy of non-refoulement (especially for Tibetans and Sri Lankans, and to some degree also for Bhutanese and Nepalis).203 Also, although it formally denies the UNHCR a binding legal role in refugee status determinations, it does permit UNHCR to operate within the country and, to that degree, is supportive of UNHCR practice. Nepal204 is also not a party to the Refugee Convention and appears to have no law on point, although it does grant refugee status de facto205 and is a signatory of the Bangkok Principles.206 In fact, Nepal practices non-refoulement of individuals recognized to be refugees (especially Bhutanese and Tibetans who are considered refugees prima facie), has permitted UNHCR to conduct refugee status determinations, recognized such determinations, and cooperated with UNHCR operations in country assiting refugees to resettle elsewhere.207 Thailand is the last specially interested state to be examined specifically.208 Thailand is not a party to the Refugee Convention and also appears not to have a law on refugees. However, once again, practice belies that fact. Thailand has signed the Bangkok Principles209 and, perhaps more significantly, has permitted UNHCR to conduct status determinations for a considerable time, although that practice has been recently suspended. With UNHCR operations suspended, Thailand has adopted its own informal de facto status determination procedure where it screens individuals in refugee camps and admits a certain quota of those qualifying.210 In summary of the practice and opinio juris of specially interested states, we can see that an expanded definition of refugee is being applied in practice. Sometimes this expanded applied definition is based on the direct practice of the state concerned and at other times it is based on the practice of the UNHCR to whom the state has delegated its refugee status determination standards. Moreover, where states have either resisted an expanded definition or attempted to curtail the work of the UNHCR, those instances of practice have been considered violations of the rules on refugees. It is well accepted that this kind of http://www.unhcr.org/refworld/docid/4a40d2a2c.html. See id. 200 See supra note 81 for analysis of status as a specially interested state. 201 See Nat’l Hum. Rts. Comm’n v. State of Arunachal Pradesh & Anr., 1996 A.I.R. 1234; 1996 S.C.C. (1) 742 (Sup. Ct., Ind., Jan. 1, 1996) (holding that the constitutional principles of life and personal liberty protect refugees from refoulement). 202 See supra sec. III.3.C.ii. But see the discussion of the possible impact of its reservation, supra note 99. 203 See USCRI, World Refugee Survey 2009 – India (June 17, 2009), available at http://www.unhcr.org/refworld/docid/4a40d2a75d.html. 204 See supra note 83 for analysis of status as a specially interested state. 205 See Immigr. & Refugee Bd of Can., Nepal: Situation of Tibetan refugees and those not recognized as refugees; including legal rights and living conditions (1995-1999), Doc. NPL33157.EX (Dec. 22, 1999); US Dep’t State, Tibetan Refugees in Nepal (Aug. 1998). 206 See supra sec. III.3.C.ii. 207 See USCRI, World Refugee Survey 2009 – Nepal (June 17, 2009), available at http://www.unhcr.org/refworld/docid/4a40d2aec.html (hereinafter “USCRI, Nepal”) However, Nepal refused to permit status determinations in 2007 and refused to recognize status determinations made after 2007, although in 2008, Nepal once again permitted UNHCR to perform status determinations. See id. 208 See supra note 84 for analysis of status as a specially interested state. 209 See supra sec. III.3.C.ii. 210 See USCRI, World Refugee Survey 2009 – Thailand (June 17, 2009), available at http://www.unhcr.org/refworld/docid/4a40d2b4c.html. Thailand has also expressed the intention to create a formal procedure that would replace the informal one, although it is unclear whether formal means de jure. See id. 199 33 “negative” practice is supportive of the rule because it supports the legal characterization of the practice as a violation and thus the correct standard being the rule.211 2. Municipal Law and Practice Concerning Subsidiary Protection Turning to subsidiary protection in municipal law, many states provide for some form of subsidiary protection under their national law. This protection is sometimes mandated by their international legal obligations, but many times is not. For example, the specially interested states of France,212 Germany,213 the UK,214 and the US,215 all provide for subsidiary protection for a class of persons wider than the 211 Case Concern. Mil. & Paramil. Acts. in & ag. Nic. (Nic. v. U.S.), Merits, Judgment, 1986 I.C. J. Reps. 14, para. 186 (June 27) It 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 the use of force or from intervention in each other' interna1 affairs. The Court does not consider that, for a rule to be established s as customary, the corresponding practice must be in absolutely rigorous conformity with the rule. In order to deduce the existence of customary rules, the Court deems it sufficient that the conduct of States should, in general, be consistent with such rules, and that instances of State conduct inconsistent with a given rule should generally have been treated as breaches of that rule, not as indications of the recognition of a new rule. If a State acts in a way prima facie incompatible with a recognized rule, but defends its conduct by appealing to exceptions orjustifications contained within the rule itself, then whether or not the State' conduct is in fact s justifiable on that basis, the significance of that attitude is to confirm rather than to weaken the rule. See Constitution, Oct. 4, 1958, art. 53-1, “Constitutional Asylum” (“the authorities of the Republic shall remain empowered to grant asylum to any foreigner who is persecuted for his action in pursuit of freedom or who seeks the protection of France on other grounds”); Constitution, Oct. 27, 1946; ECRE, Complementary/Subsidiary Forms of Protection in the EU Member States: An Overview: France, available at http://www.ecre.org/files/survcompro.pdf (noting that the refugee authority and appeals board has discretion to grant Constitutional asylum to persons “fighting for freedom” who do not qualify as Convention refugees); Loi no. 52/893 relative au droit d’asile (July 25, 1952) (the “Asylum Law”), art. 2 (II) (risk of the death penalty; torture or inhuman or degrading punishment or treatment; serious, direct and individualised threat to his life or person because of generalised violence resulting from internal or international armed conflict); Loi no. 99/586 (July 12, 1999) (“Loi Chevènement”), § 13 “Asile Territorial” (rejected asylum seekers who, if returned, would face a threat to his life or freedom or would be at risk of treatment contrary to Article 3 of the ECHR). Also note that France may be considered a specially interested state based on the receipt of high numbers of refugees and persons in refugee-like situations. See supra note 82. 213 See Grundgesetz (“GG”), May 23, 1949, art. 16(a) (right to asylum for those who fear political persecution); Residence Act (June 30, 2004), 2004 Federal Law Gazette, Pt. I, No. 41 (Aug. 5, 2004), sec. 60(1), as amended Act Amending the Residence Act and other acts (Mar. 14, 2005), 2005 Federal Law Gazette, Pt. I, 721 (Torture, death penalty, substantial concrete danger to his or her life and limb or liberty, or ECHR); Gesetz über die Einreise und den Aufenthalt von Ausländern im Bundesgebiet [Aliens Act], (July 9, 1990), 1990 Federal Law Gazette Pt. I, 1354, sec. 30, as amended Act of 23 July 1999, 1999 Federal Law Gazette Pt. I, 1620, art. 2 “Humanitarian Reasons” [Aufenthaltsbefugnis”]; sec. 54 “Temporary Suspension of Deportation”; §§ 53, 55 “Tolerated Residence” [“Duldung”]; § 53, para. 1-4 (risk of torture, capital punishment, inhuman or degrading treatment ), § 53, para. 6 (immediate threat to life or freedom or persons who are forced to flee starvation or deprivation of natural resources), § 55, (temporarily if expulsion is impossible). Also note that Germany is fourth highest recipient of refugees (or other displaced persons in refugee-like situations) in the world. See supra note 68. Therefore, Germany can be considered specially interested in refugee and refugee-like flows of persons. 214 See Immigration Act 1971, Immigration Rules, Rule 334 (adopted pursuant to 1971 Immigration Act) “Humanitarian Protection” (asylum applications refused but who would face serious risk to life or person from imposition of the death penalty or other unlawful killing, including in a war/conflict situation, by the State or agents of the State or non-State agents where there is no sufficiency of protection, or torture, inhuman or degrading treatment or punishment (ECHR, art. 3); “Discretionary Leave” (asylum application refused but removal would result in a direct breach of ECHR, art. 3 or 8, such as serious medical condition or such poor conditions upon return, such as absence of water, food or basic shelter, or unaccompanied asylum seeking children without inadequate reception arrangements available in their own country or other humanitarian considerations). Also note that the UK 212 34 conventional definition of refugee. To these states must be added Australia,216 Austria,217 Belgium,218 Canada,219 Denmark,220 Ecuador,221 Finland,222 Greece,223 Ireland,224 Israel,225 Italy,226 Luxembourg,227 maybe considered to be a specially interested state due to the high level of receipt of refugees and persons in refugeelike situations. See supra note 72. 215 See Immigration and Nationality Act (hereinafter “INA”) § 101(a)(42) (including victims of forced sterilization or abortion programs), § 244 “Temporary Protected Status” (temporary status granted to eligible nationals of designated countries. The Secretary of Homeland Security may ‘designate’ a country where there is an ongoing armed conflict, natural disaster, the foreign state is unable, temporarily, to handle adequately the return). Also see Susan Martin, Andrew I. Schoenholtz & Deborah Waller Meyers, Temporary Protection: Towards a New Regional and Domestic Framework, 12 GEORGETOWN IMMIGR. L.J. 543 (1998). Also note that the US might be considered a specially interested state based on the high level of receipt of refugees and persons in refugee-like situations. See supra note 74 and accompanying text. 216 See Migration Act, 1958, sec. 417 ‘Permanent Protection Visa’ or ‘Temporary Protection Visa’ (public interest, significant threat to personal security, human rights or human dignity infringed on return, or subjected to a systematic program of harassment or denial of basic rights). 217 See Asylum Act, 2005, art. 10 § 5(2) (implementing complementary protection as provided in the Qualification Directive, supra note 120 and ECHR); Asylum Act, 1997, arts. 8, 15; Aliens Act, 1997, art. 57 “Limited Right of Residence” (violation of Article 2 of the ECHR (right to life), Article 3 of the ECHR (prohibition of torture and inhuman or degrading treatment or punishment), Protocol 6 to the ECHR (abolition of the death penalty), or persons fearing persecution for gender-related reasons); Aliens Act, 1997, arts. 56 - 57 ”Abschiebungsaufschub” [“Deportation Deferment”] (cannot be deported because would violate arts. 2 or 3 or Protocol 6 to the ECHR or is practically impossible); Aliens Act, 1997, art. 10(4) “Humanitarian Residence Permit” (humanitarian grounds, violation of Article 2, Article 3 or Protocol 6, or human trafficking cases). 218 See Aliens Act, art. 9(3) “Residence Permits Issued Under Exceptional Circumstances”(strong ties to Belgium, return is impossible, situations of civil war or generalised violence, grave illnesses, risk of human rights violations, torture or cruel, inhuman and degrading treatment, special relationship with Belgians or foreigners who permanently stay in Belgium); Dirk Vanheule, The Qualification Directive: A Milestone in Belgium Asylum Law, in KARIN ZWAAN, ED., THE QUALIFICATION DIRECTIVE: CENTRAL THEMES, PROBLEM ISSUES, AND IMPLEMENTATION IN SELECTED STATES 75 (2007) (reporting that Belgium has also created a medical asylum assessment process); “Suspension of Deportation” reported at Complementary/Subsidiary Forms of Protection in the EU Member States: An Overview: Belgium, available at http://www.ecre.org/files/survcompro.pdf (reporting that the authority merely rests with administrative discretion). 219 See Immigration and Refugee Protection Act 2002, §§ 95-98 (risk to their life or to a risk of cruel and unusual treatment or punishment); § 25 (‘humanitarian and compassionate’ grounds); Immigration and Refugee Protection Act 2001, § 97(1) ‘protected persons’ ‘protected persons’ are persons falling outside the Refugee Convention who face a personal risk to life or a risk of cruel and unusual treatment or punishment where: (i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country; (ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country; (iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards; and (iv) the risk is not caused by the inability of that country to provide adequate health or medical care. Also note that Canada might be considered a specially interested state based on the high level of receipt of refugees and persons in refugee-like situations. See supra note 102 and accompanying text. 220 See Aliens (Consolidation) Act 2002, § 7(2) “Protection Status” (risk the death penalty or being subjected to torture or inhuman or degrading treatment or punishment); § 9(b) “Humanitarian Status” (essential considerations of a humanitarian nature); § 9(c) “Exceptional Reasons” (exceptional reasons, close family ties, not possible to return the person for at least 18 months). 221 See Pres. Decree 3301/92, arts. 1-2 (has been interpreted to include individuals who refuse to provide financial/material assistance to paramilitary or guerrilla forces, relatives and companions of people participating in the conflict (including rape victims targeted on this basis) and individuals who resist forced recruitment or are deserters from paramilitary or guerrilla forces; individuals who have been directly affected in a serious or even life 35 Netherlands,228 Portugal,229 Russia,230 Spain,231 Sweden,232 and Switzerland.233 Some of those states might threatening way by the conflict in Colombia; and some other vulnerable non-nationals (e.g. single pregnant women, disabled persons, women victims of domestic violence)). 222 See Constitution, § 9; Aliens Act 301/2004, 2004, §§ 51, 52, and 89 (providing grounds for protection including health, social ties and practical impossibility of return); Aliens Act, 1991, § 31, as amended through 2001 (danger of a death sentence, torture or other treatment violating human dignity, also armed conflict, indiscriminate violence or environmental disaster, gender-related or sexual persecution, persecution for refusal to perform military service). 223 See Immigration (Aliens) Law, Law No. 1975/1991, amended by Law No. 2452/1996, § 25.4; Pres. Decree 61/1999 § 8 “Humanitarian Refugee Status” (refugee status application has been finally rejected but cannot return to their countries of origin for reasons of a force majeure or return would violate ECHR, art. 3, or CAT, art. 3, or similar humanitarian reasons); Immigration Law No. 2910/2001, art. 37.4 (a), (b); Immigration Law No. 3146/2003, art. 8, para. 1 “Temporary Residence Permits” (illegal immigrants unable to return to their country of origin, especially on humanitarian grounds or due to force majeure); Immigration Law No. 2910/2001, art. 44.6 “Suspension of Administrative Deportation” (humanitarian reasons, force majeure, or public interest ); Inter-min. Dec. No. 137954 (Oct. 12, 2000), art. 3 “Suspension of Judicial Deportation” (when deportation is not possible, especially when alien’s life is in danger.) 224 See Immigrant Act of 1999 § 3(6) “Leave to Remain” (humanitarian or other reasons not to make a deportation order, such as illness, family connections and personal considerations); Refugee Act of 1996 § 17(6) “Discretionary Right to Remain” (asylum application was withdrawn, denied or revoked, nonetheless may remain under protection. this protection status has never been used); Refugee Act of 1996 § 5(2), Criminal Justice (United Nations Convention Against Torture) Act 2000 § 4 “Prohibition against Refoulement” (life or freedom (including sexual assault) would be threatened on account of his race, religion, nationality, membership in a particular social group or political opinion, danger of being subject to torture). 225 See Zanbech W/ Yohannes Belcha & ors v. Min. of Int. Aff’rs & Trib. for Jud. Rev., AdmAp 2028/05 (Tel Aviv Dist. Ct., Israel, sitting as a Ct. Admin. Matt’rs, Feb. 8, 2006) (Mudrik, J) reprinted at ILDC 290 (IL 2006) (expressing willingness to expand the non-refoulement protection beyond the narrow class of Convention refugees with sufficient proof of a well-founded fear of persecution, so while they did not formally qualify as ‘refugees’, they deserved protection from a risk of persecution, although this was only a temporary measure). 226 See Constitution, art. 10, para. 3 “Political Asylum” (not allowed to exercise in his own home country the democratic liberties guaranteed by the Italian Constitution). Note that this was traditionally considered a hortatory statement but was later interpreted to have binding legal effect. See Dec. No. 4674 (Ct. Cass., May 26, 1997); In re Abdullah Ocalan (Trib. Rome, Oct. 1, 1999) discussed in ECRE, Residence Permits on Humanitarian Grounds; Complementary/Subsidiary Forms of Protection in the EU Member States: An Overview: Italy, available at http://www.ecre.org/files/survcompro.pdf; Law No. 189/02 (providing for asylum explicitly as a consequence of ECHR, art. 3); Legis. Decree No. 286/98 “Testico Unico”, art. 5(6) (do not qualify as Convention refugees but cannot be returned due to serious humanitarian reasons or constitutional or international obligations of the Italian State). 227 See Act of 18 Mar. 2000, art. 13 “Tolerance” (denied refugee status but cannot be returned for practical reasons such as refusal to re-admit or health problems). 228 See Aliens Act 2000 §§ 26, 27, 29 “Residence Status for Humanitarian Reasons” (risk of being subject to torture or inhuman or degrading treatment or punishment, pressing humanitarian reasons, return would constitute an exceptional hardship due to violence in the country of origin, human rights violations, spouse or parent has the same nationality and was granted a residence permit within three months of the applicant’s application for admission, dependents on partners or family members who received a residence permit, provided they have the same nationality and applied for admission within three months of the family member’s receipt of the permit); Aliens Act 2000 § 43 “Decision Moratory” (decision on the asylum application is extended beyond the typical six-month period because: of insecurity in the country of origin, situation justifying the grant of a residence permit is expected to be of a short duration, number of applications lodged by persons from a particular country or region is so large the Minister cannot reasonably decide them within the six-month time limit); Aliens Act 2000 § 45(4) “Expulsion Moratory” (asylum applications were rejected but return is temporarily impossible); Aliens Act 2000, art. 14, Aliens Decree, art. 3.6 “Regular Residence Permit” (unable to leave the Netherlands through no fault of his or her own such as stateless persons, and unaccompanied minors). Also note that the Netherlands might be considered a specially interested state, although it is not so highly affected as some other states examined. See supra note 84. 229 See 1998 Asylum Act, art. 8 “Residence Permit for Humanitarian Reasons” (do not qualify for Convention refugee status but humanitarian reasons, serious lack of security resulting from armed conflicts or systematic 36 also be considered specially interested, or at least highly influential, due to their rates of receipt of individuals in need of protection. Common bases for protection by these states include: the risk of torture or degrading punishment,234 the imposition of capital punishment,235 impossibility or futility of return,236 existence of a state of armed conflict,237 environmental disaster or deprivation of resources,238 strong ties to the state or family ties,239 grave illnesses,240 gender or sexual orientation persecution,241 and other violation of human rights); Aliens Act of 2003 (Decree Law No. 34/2003), art. 87, revoking Aliens Act of 2001 (Decree Law No. 4/2001), art. 55 “Residence Permit in Case of Irregular Stay” (grave illness, relative who has a humanitarian residence permit, are married to or live with Portuguese nationals or aliens with residence permits, or have minor children living in Portugal; artistic, scientific, economic or social activity of high interest for the country; diplomats who have worked in Portugal for more than three years.); Aliens Act of 2003 (Decree Law No. 34/2003), art. 88 “Exceptional Residence Permit” (reasons of national interest). 230 See 1997 Law on Refugees, arts. 1(1), 2, 12(2) (humanitarian reasons, armed conflicts, serious health problems, instability in the country of origin, family unity). 231 See Law 5/1984, arts. 17(2), (3), Reglamento de Aplicación de la Ley de Asilo [Regulating Refugee Status and the Right of Asylum], approved by Royal Decree 203/1995 (10 Feb. 1995) modified by Royal Decree 864/2001 (20 Jul. 2001) and Royal Decree 1325/2003 (25 Oct. 2003), arts. 31.3, 31.4 “Residence Permits for Displaced Persons” (do not qualify for refugee status but are displaced persons under a serious risk of exposure to systematic or generalised human rights violations), “Leave to Remain in Spain on Humanitarian Grounds or for Reasons of Public Interest” (asylum applications have been rejected may be authorised to stay for humanitarian reasons or reasons of the public interest such as people fleeing conflicts and other serious disturbances), “Prohibition of Refoulement” (humanitarian reasons); Regulation on Temporary Protection, Royal Decree 1325/2003 (25 Oct. 2003)), art. 2. 232 See Aliens Act, 2005, §§ 1 & 2, ch. 12 (prohibiting refoulement to a situation where there is a risk of refoulement to a situation of danger); Aliens Act, ch. 3, § 3 “Persons Who Otherwise Need International Protection” (do not qualify as Convention refugees but well-founded fear of being sentenced to death or corporal punishment or torture or other inhuman or degrading treatment or punishment, external or internal armed conflict, environmental disaster preventing return, well-founded fear of persecution because of his/her sex or sexual orientation); Aliens Act, ch. 8, §§ 1-4 “Safeguards against Refoulement” (not granted refugee status or subsidiary protection may not be expelled if reasonable grounds for believing capital or corporal punishment or torture or other inhuman or degrading punishment or treatment, or persecution); Aliens Act, ch. 2, § 5b “Reconsideration of a Decision of Expulsion” (otherwise in need of international protection or contrary to humanity); Aliens Act, ch. 2, §§ 4(5), 5 “Humanitarian Reasons” (humanitarian reasons, such as certain physical or mental handicaps or diseases or home country is in a state of war). Also note that Sweden might be a specially interested state, although it is less affected than some other states, see supra note 84. 233 See In re O.D. und Kinder, Eritrea, Case 2004, No. 26 (ARK, May 26, 2004); In re A.G.M. et famille, Angola, Case 2004, No. 32 (ARK, Sept. 17, 2004). 234 Austria, Belgium, Denmark, Finland, Germany, Greece, Ireland, Netherlands, Sweden, UK. Note that Germany might be considered a specially interested state. See supra notes 90 and 106. Also note that the Netherlands and Sweden might be considered specially interested state, although they are not so highly affected as some other states examined. See supra note 84. 235 Austria, Denmark, Finland, Germany, Sweden, UK. Also note that Germany and the UK might be specially interested states, see supra notes 68, 72; and that Sweden might also be so considered, although it is less affected than some other states, see supra note 84. 236 Austria, Belgium, Denmark, Germany, Greece, Luxembourg, Netherlands. Again note that Germany might be a specially interested state, see supra note 68, and that the Netherlands might also be so considered, see supra note 84. 237 Belgium, Denmark, Finland, Germany, Greece, Netherlands, Spain, Sweden, UK. Again note that Germany and the UK might be specially interested states, see supra notes 68, 72, and that the Netherlands and Sweden might also be so considered, see supra note 84. 238 Denmark, Finland, Greece, Portugal, UK. Again note that the UK might be specially interested, see supra note 72. 239 Belgium, Denmark, Ireland, Netherlands, UK. Again note that the UK might be specially interested, see supra note 72, and the Netherlands might also be so considered, see supra note 84. 240 Belgium, Greece, Ireland, Luxembourg, Portugal, Sweden. Again note that Sweden might be a specially interested state, although it is less affected than some other states, see supra note 84. 241 Austria, Denmark, Finland, Sweden. Again note that Sweden might be a specially interested state, although it is less affected than some other states, see supra note 84. 37 violations of human rights.242 In addition, many of the states cited above mix their terminology between “refuge” and “asylum” (or “refugee” and “asylee”, or similar terms), for example granting “refuge” to individuals qualifying on grounds not mandated by the Refugee Convention, and suggesting that the customary international legal definition of “refugee” may be considered to encompass more that only Convention refugees. As an example of this apparent increasing convergence between refuge and asylum, we might consider the fact that from 2000 to 2002, European states granted protection to approximately 70,000 applicants each year243 of which approximately 57,000 subsequently received asylum.244 In addition to protections for risks of torture or other subsidiary grounds, some states also apply a general proportionality test to the expulsion of any person for any reason, including individuals whose refugee status was either not recognized or terminated.245 If we might argue that the subsidiary rules have effectively expanded the definition of “refugee” beyond the narrow meaning in the Refugee Convention, then we can also ask whether general proportionality concerns have done so as well. In applying Article 33(2) of the Refugee Convention, though, the New Zealand Supreme Court found that the Refugee Convention did not require this proportionality test.246 Accordingly, there is insufficient practice on point on which to comfortably find a rule of customary international law. Many states also provide for the same or similar standards for subsidiary protection as they do for refugee status, though they do maintain a formal distinction between the two statuses and can apply slightly differing standards on certain aspects. 247 This practice might suggest an opinio juris to maintain the separate categories of refugee and subsidiary protection, and deny that there is any international legal basis for an expanded definition beyond the Refugee Convention. Consider, for example, the language of the US Ninth Circuit Court of Appeals: 242 Netherlands, U.K. Again note that the UK might be specially interested, see supra note 72, as well as the Netherlands, see supra note 84. 243 See UNHCR, Population Data Unit, Asylum applications and refugee status determination in selected European countries, 2000-2002, Tbl. 2 (Feb. 20, 2004). 244 See id. Also see Walter Kalin, Temporary Protection in the EC: Refugee Law, Human Rights and the Temptations of Pragmatism, 44 GERM. YB INTL L. 202, 220 (2001). 245 See e.g. • Israel: Zanbech W/Yohannes Belcha v. Min. Int. Aff’rs, AdmAp 2028/05 (Tel Aviv Dist. Ct., Israel, Feb. 8, 2006) reprinted at ILDC 290 (IL 2006) (although petitioners did not qualify for refugee status, the lifethreatening situation they would face upon return was disproportionate to the problems with their continued stay, justifying a temporary stay of deportation, pending designating a safe third country) Switzerland: In re M.C.C., Somalie, Case 2006, No. 2 (ARK, Dec. 13, 2005) (finding that the chaotic situation and the permanent state of violence in Somalia rendered removal unreasonable because removal would be disproportionate). • 246 See AG v. Zaoui, (2005) N.Z.S.C. 38, para. 42 (Sup. Ct., N. Zealand, June 21 2005) reprinted at ILDC 81 (NZ 2005) Article 33(2) [of the Refugee Convention] did not, however, invite a ‘proportionality’ or ‘sliding scale’ approach. It stated a single standard and was to be applied in its own terms by reference to the danger to the security of New Zealand without any individualized balancing or weighing of the particular risk of deportation to the individual. See ECRE Country Report 2004, supra note 5 (“Changes were brought about after the introduction of subsidiary protection into French legislation. Grounds for the use of exclusion clauses are the same for subsidiary protection as for Convention Status, except for the concept of ‘non-political crime’ which is wider for subsidiary protection than for Geneva Convention Status because it includes host countries. “) 247 38 “[the] customary international law of safe haven and nonreturn is not a separate basis for jurisdiction before immigration court [a defense against removal by a municipal court]”.248 However, given the position of specially interested states regarding the UNHCR definition and the widespread and consistent practice of providing and granting subsidiary protection with comparable content, there may be customary international law requiring states to provide, at least, subsidiary protection in some of these situations, though not necessarily a customary expansion of the definition of refugee. In any event, that may be a difference without significance, if it results in an expanded class of persons deriving a right of non-refoulement. F. PRACTICE AND OPINIO JURIS OF ENTITIES OTHER THAN STATES Needless to say, it is highly contentious whether the acts of entities other than states can contribute to the formation of customary international law. Where the acts of international organizations have been so considered, they are often explained as relevant because they are the collective expression of the practice of states. However, this analysis suffers from the weakness of characterizing some acts as those of the states within the international organization and those of the international organization proper, i.e exercising the “will of its own”. 249 This author is not yet convinced that international law accepts the practice of international organizations themselves, as opposed to the practice of states within and through international organizations, as contributing to customary international law. However, given that this argument is on-going and that the trend appears to be increasingly in favor of accepting the practice of international organizations as contributory, we will next examine the practice of organizations. In particular, it will be noted where the practice of organizations is more indicative of the practice and opinio juris of states, such as instances where states have made their opinio juris known through the organization or where they have potentially adopted the practice and opinio juris of the organization. 1. United Nations High Commissioner for Refugees Practice and Opinio Juris Kay Hailbronner has argued that the practice of the UNHCR is not state practice and therefore does not contribute to the forming of customary international law.250 This author agrees that it is the practice of states that contributes to the formation of customary international law, not the practice of institutions, and that Hailbronner is therefore correct insofar as the precise argument made there. However, this author reaffirms the distinction that acts of international organizations are capable of embodying practice and opinio juris of states where the act is not an act of the organization per se, but the act of states within and through the organization.251 A good example of this type of act is the voting records of states in the UN 248 249 See Galo-Garcia v. Immigr. & Nat’ztn Serv., 86 F. 3d 916 (9th Cir., 1996). See e.g. Pros. v. Tadi a/k/a “Dule”, Dec. on the Def. Mtn. for Interloc. Appl. on Juris., paras. 113-15 (Int’l Crim. Trib. former Yugo., Appls. Ch., Oct. 2, 1995) (not clearly distinguishing between the acts of the states within the organization or the acts of the organization proper when relying on the practice of international organizations for establishing customary international law); AM. L. INST., RESTATEMENT OF THE LAW, THIRD, THE FOREIGN RELATIONS LAW OF THE UNITED STATES, sec. 102, Rep’s N. 2 (1987) (“The practice of states that builds customary law takes many forms and includes what states do in or through international organizations”). Also see HENRY G. SCHERMERS & NIELS M. BLOKKER, INTERNATIONAL INSTITUTIONAL LAW §33, 44-44A (4th rev. ed., 2003) (discussing the notion of a “will of its own”). This author is aware, of course, that the characterization of some acts as either being attributable to the organization or the member states is difficult to make. 250 See e.g. Kay Hailbronner, Non-Refoulement and ‘Humanitarian Refugees, 26(4) VIRGINIA J. INT’L L. 857, 869 (1986) (“Although the UNHCR fulfills its functions with the agreement of states, it remains a special body entrusted with humanitarian tasks … the fact that the UNHCR continues to care for the interests of de facto refugees cannot be considered evidence of an opinio juris by states”) 251 See supra note 249. 39 General Assembly. While we acknowledge that the resolution of the General Assembly is the act of the organization with its prescribed legal effects, the voting behavior of the states remains the practice of the states with its own legal effects in the form of the potential contribution to the formation of customary international law.252 In addition, the acts of the organization might also be said to embody the practice of the state where the state delegates its state functions to the international organization253 or where states cite the mandate of the UNHCR as generally supervisory.254 It is not a stretch to understand that where a state so delegates its functions, it is, at least, expressing an opinio juris that the legal standards applied by the organization are the correct ones, and, at most, the opinio juris of the organization could be attributed to the state. An example appropriate here is the delegation by states to the UNHCR of the refugee status 252 See Legality of the Threat or Use of Nuclear Weapons, Adv. Op., 1996 I.C.J. Reps 226, para. 70 (July 8) The Court notes that General Assembly resolutions, even if they are not binding, may sometimes have normative value. They can, in certain circumstances, provide evidence important for establishing the existence of a rule or the emergence of an opinio juris. To establish whether this is true of a General Assembly resolution, it is necesary 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. 253 See e.g. Matthews v. U.K., Appl. No. 24833/94, 28 E.H.R.R. 361, paras. 31-35 (Eur. Ct. Hum. Rts., 1999) (obligation on state to monitor the exercise of delegated powers to ensure compliance with international law). Also see A.G. v. Nissan, [1969] 1 All. E.L. Reps. 639, 646 (UKHL, Feb. 11, 1969) (per Morris of Borth-y-Gest, Pearce, Wilberforce & Pearson, LL.) reprinted at 44 INT’L L. REPS. 359 (UK remained responsible for the violations of international law by its troops even when participating in UNFICYP because the UK retained command and control over the troops’ acts); Jennings v. Markley, 186 F. Supp. 611 (S. Dist., Ind., Sept. 19, 1960) aff’d 290 F. 2d 892 (7th Cir., June 7, 1961) (holding that US troops remained subject to the jurisdiction of the US when serving on a UN mission). Also see Giorgio Gaja, Int’l L. Comm’n, Spec. Rapp., Second Report on Responsibility of International Organizations, U.N. Doc. A/CN.4/541, para. 50 (Apr. 2, 2004) (suggesting the following language for the Draft Articles on the Responsibility of International Organizations as the codification of customary international law): Article 5 Conduct of organs placed at the disposal of an international organization by a State or another international organization The conduct of an organ of a State or an international organization that is placed at the disposal of another international organization for the exercise of one of that organization’s functions shall be considered under international law an act of the latter organization to the extent that the organization exercises effective control over the conduct of the organ. 254 Brasilia Declaration on the Protection of Refugees and Stateless Persons in the Americas, Brasilia, (Nov. 11, 2010): Recognizing UNHCR’s work to promote international refugee law and guidelines on forced displacement and statelessness, as well as its supervisory responsibility in the field of refugees and stateless persons; Underscoring the fundamental contribution made by States, with the support of UNHCR, the donor community, national institutions for the promotion and protection of human rights and civil society organizations, among others, to care for, protect and seek durable solutions for refugees, stateless persons and internally displaced persons; It is interesting to note that the Brasilia Declaration discusses the work of the UNHCR as covering refugees, stateless persons, and internally displaced persons. Since the UNHCR mandate also covers persons in “refugee-like” situations of flight out of the state from situations of external aggression, occupation, foreign domination or events seriously disturbing public order, and such individuals cannot be classified as stateless or internally displaced, the logical conclusion is that the parties to the Brasilia Declaration understand those individuals covered by the expanded UNHCR mandate to be refugees per se. 40 determination function. Therefore, we cannot so easily dismiss the practice of the UNHCR, and, in fact, it might be representative of the opinio juris and practice of states. The Codification Division of the UN Secretariat suggested that the practice of the UNHCR and states, and opinio juris, might even be seen through a particular lens: that they may wish to refrain from designating certain individuals as refugees even when they qualify as such, because the recognition of status would have political effects on the state now recognized to be a persecuting state.255 If this is correct, then we might be more aggressive in identifying instances where states and/or the UNHCR might consider the relevant persons are refugees because we know that those actors will avoid communicating the fact, even if they regard themselves under an obligation to protect. The UNHCR was established to address the needs of refugees, but its competence and mission have been extensively expanded by the UN General Assembly without necessarily expanding the core definition of its mission.256 This practice arguably expands the international community’s understanding of refugee.257 It is interesting to note that the UNHCR’s mandate has been expanded to cover those who have a “serious threat to their life, liberty or security of person in their country of origin as a result of armed conflict or serious public disorder”. 258 This mandate should include259 255 UN Secretariat Memo, supra note 47 at para. 158: The determination of an individual’s status as a refugee may also be complicated by political considerations because of the persecution element of the definition of a refugee. Similarly, UNHCR may be hesitant to characterize a group of persons as “refugees” because of the political implications. “The High Commissioner has often refrained from making collective determinations of groups of people as refugees by resorting to the use of terms such as ‘persons in situations analogous to refugees’ and ‘displaced persons’. This is because it is thought impolitic to classify persons as refugees, for such a determination necessarily implies that the country from which the refugees have fled is a country of persecution. (internal citations omitted) 256 See 23 LOUIS B. SOHN & T. BUERGENTHAL, EDS., THE MOVEMENT OF PERSONS ACROSS BORDERS, STUDIES IN TRANSNATIONAL LEGAL POLICY §13.02, 102 (1992): The refugees falling within the mandate of the High Commissioner, as interpreted by the General Assembly, are usually referred to as ‘mandate refugees.’ That mandate had, for instance, increased by 1957, when the General Assembly employed the concept of the High Commissioner’s ‘good offices’ to allow UNHCR to provide protection and assistance to the refugees who did not meet the 1951 [Refugee] Convention definition. In 1965 the General Assembly authorized UNHCR to provide protection to non-Convention refugees on the same terms as Convention refugees; in 1975 it termed the situations of Convention and non-Convention refugees ‘analogous’ because both were victims of manmade events over which they had no control … In particular, it expands the understanding of specially interested states, such as China, Jordan, Kenya, Pakistan, Saudi Arabia, Syria and Tanzania, that appear to have adopted the practice and opinio juris of the UNHCR based on the fact that they have, albeit sometimes formally and sometimes informally, delegated the refugee status determination procedure to the organization. See USCRI, China, supra note 162; USCRI, Jordan, supra note 154; USCRI, Kenya, supra note 177; USCRI, Pakistan, supra note 144; USCRI, Saudi Arabia, supra note 181; USCRI, Syria, supra note 136; USCRI, Tanzania, supra note 158. Gemany, the UK and France might be considered to be highly influenced by the UNHCR definition of individuals falling under its mandate, though not having delegated status determination to the organization. See USCRI, Europe, supra note 149. The practice and opinio juris of Nepal as per the UNHCR is more ambiguous. See USCRI, Nepal, supra note 207. 258 U.N.G.A. Res. 428(V), Statute of the Office of the UNHCR (Dec. 14, 1950), 5 U.N.G.A.O.R. Supp. (No. 20), U.N. Doc. A/1775 (1950) reprinted at UNHCR, Collection of International instruments Concerning Refugees, U.N. Doc. HCR/IP/I/Eng. (1979) (hereinafter “UNHCR Statute”) at 3; Eberhard Jahn, Refugees, in RUDOLF BERNHARDT, DIR., 4 ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW 72, 73 (2001) Consequently, in a large number of resolutions the United Nations General Assembly has enabled the UNHCR to use his good offices in refugee situations not falling strictly within his mandate. In dealing with the activities of UNHCR, the General Assembly has since 1977 generally referred to ‘refugees and displaced persons’, the 257 41 all persons who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part of the whole of their country of origin or nationality are compelling to leave their place of habitual residence in order to seek refuge in another place outside the country of origin or nationality. Interestingly, this expansion of the mandate of the UNHCR closely tracks the expanded definition of refugee that has developed through regional agreements discussed above. Although the Refugee Convention itself was not amended to expand the definition, only the UNHCR organizational mandate, the expansion of the mandate of the agency charged with ensuring the protections of the Convention are fulfilled suggests an opinio juris exists that some supplementary “refugee” definition applies much more broadly than is usually acknowledged.260 It could be that war and aggression are seen as falling within the broad notion of persecution. The European Council on Refugees and Exiles has noted that “it is hard to conceive of a recent war or civil war situation which has not resulted in or been motivated by persecution for one of the grounds in Article 1A(2) of the Refugee Convention”.261 This statement suggests that war or other comparable disruptions might alone qualify as persecution. However, the ECRE does not reach this conclusion specifically, subsequently noting that the UNHCR Executive Committee at its 49th Session observed only that “the increasing use of war and violence as a means to carry out persecutory policies against groups targeted on account of their race, religion, nationality, membership of a particular social group, or political opinion.”262 While war could be a means of persecution, it was not persecution per se and the individuals who fled did not qualify as refugees. This interpretation though then makes it difficult to understand why the UNHCR’s mandate would be expanded if the individuals it was now charged with protecting were not being persecuted and falling under the Refugee Convention on that basis. It could suggest that the expansion of the mandate was not an effort to expand the meaning of persecution, thus keeping the Convention largely intact, but rather the development of a supplementary definition of refugee. Arguing against the UNHCR’s mandate as supplementing the Refugee Convention definition of refugee, the UNHCR’s mandate it is still limited to “those in refugee-like situations,” and the terms of its statute under which it acts appear to contemplate that it may offer assistance to individuals who are not formally latter term meaning victims of manmade disasters who find themselves in a refugee-like situation outside their home countries. SOHN & BUERGENTHAL, MOVEMENT OF PERSONS, supra note 256 at § 13.01, 100 (1992) Also, where possible, the United Nations High Commissioner for Refugees (UNHCR), the principal United Nations operating agency responsible for protection and assistance to refugees, as well as various nongovernmental organizations and ad hoc groups provide relief in these situations. Due to the growing refugee crisis and the perceived inadequacies of the existing international treaties relating to refugees, concepts such as ‘temporary refugee’ and ‘temporary asylum’ are emerging. UN Secretariat Memo, supra note 47 (“In some cases, the General Assembly of the United Nations has extended the mandate of UNHCR to cover ‘displaced persons’”). 259 See Conclusions of a Symposium on the Promotion, Dissemination and Teaching of Fundamental Human Rights of Refugees, U.N. Doc. HCR/PRO/7 (1982) at 17. 260 UNHCR, Note on International Protection, U.N. Doc. A/AC.96/830, para. 32 (Sept. 7, 1994); UNHCR, Complementary Forms of Protection, supra note 52 at para. 10; Mandal, Protection Mechanisms, supra note 87. 261 See Eur. Council Refs. & Exiles, Position on the Interpretation of Article 1 of the Refugee Convention, para. 30 (Sept. 2000) (hereinafter “ECRE, Position on Art. 1”) (citing UNHCR Exec. Comm., Concl. No. 85 (XLIX) on International Protection). 262 See id. at para. 30. 42 refugees.263 Thus, mandate of the UNHCR appears to contemplate that these individuals under the expanded protection of the UNHCR are not literally qualifying as “refugees” and therefore does not appear to expand the conventional definition of “refugee”, even if the practice of that office could potentially do so. Additionally, states often refuse to accept inviduals for settlement by the UNHCR if the protected individual is not qualifying as a refugee under the Refugee Convention.264 The foregoing forces us to conclude that the expansion of the UNHCR mandate most likely does not, in itself, expand the conventional definition of refugee, although it may contribute to the formation of customary international on the provision of refuge to a broader scope of protected individuals. 2. Council of Europe Practice and Opinio Juris Secondly, the Council of Europe has relevant practice. Recommendation (2001)18 of the Committee of Ministers of the Council of Europe recommends that Europe take a common approach to refugee qualifications, suggesting that the risk of torture or inhuman or degrading treatment of punishment; a threat to life, security or liberty because of indiscriminate violence arising out of situations such as armed conflict; or other reasons recognized by legislation or practice in a member state, all establish a person as a “refugee”.265 We can consider this the opinio juris of the states of the Council of Europe, especially since it was adopted by the Committee of Ministers, more likely to be expressions of opinio juris by states through the organization, rather than an expression by the organization. 3. European Union Practice and Opinio Juris Turning to EU law, the Qualification Directive clearly applies to refugees as defined in the Refugee Convention, but establishes a separate category for other persons who deserve protection but are not refugees.266 At least three of the member states of the EU are specially interested states, and all member states, included the specially interested ones, are bound to comply with EU law. Accordingly, EU practice and opinio juris must carry significant weight, even if we refuse to accord it formal significance as contributing to the formation of customary international law. It reflects the practice of a considerable number of states in the world, including at least three specially interested ones. UNHCR Statute, supra note 258 at art. 9 (providing that the High Commissioner may “engage in such activities…as the General Assembly may determine, within the limits of the resources placed at his disposal”); UN Ofc. Coord. Hum. Aff’rs, Guiding Principles on Internal Displacement (1998), available at http://www.reliefweb.int/ocha_ol/pub/idp_gp/idp.html. 264 See Mandal, Protection Mechanisms, supra note 87 at para. 265 (discussing US policy: In terms of resettlement, only refugees who fall within the 1951 [Refugee] Convention/1967 [Refugee] Protocol refugee definition as incorporated in the INA are eligible. Determination of such status is carried out by US officials for all candidates, whether or not they have been persons suffering persecution in their home state who may be directly admitted to the USA under its resettlement programme are not relevant to this study. 265 263 See Council. Eur. Comm. Mins., Parl. Assembly Recomms. 773 (1976) on the Situation of De Facto Refugees, 817 (1977) on Certain Aspects of the Right to Asylum, 1327 (1997) on the Protection and Reinforcement of the Human Rights of Refugees and Asylum-Seekers in Europe, 1525 (2001) on the United Nations High Commissioner for Refugees and the Fiftieth Anniversary of the Geneva Convention. 266 See Gil-Bazo, Refugee status, supra note 52. Also note that Denmark is the only EU state to have expressly opted out of the Directive’s regime. 43 In the Qualification Directive, refugees are defined according to the Refugee Convention267 with the difference of EU nationals being exempted from the definition.268 The Directive, especially Article 15(c), also draws on the language in the OAU Convention, the Cartagena Declaration and the UNHCR’s widened mandate, at least insofar as situations of armed conflict, to establish categories of persons deserving protection. However, it implicitly considers these to be situations outside the definition of “refugee” since it classifies them as falling under the definition of “subsidiary protection”. In the Elgafaji case before the European Court of Justice, the Court clarified the qualification for subsidiary protection as not needing to be “specifically targeted” for harsh treatment, but rather only to have suffered a “serious and individual threat” due to indiscriminate violence, meaning that there was an inverse relationship between the level of violence and the specificity of the threat.269 However, the Court did not attempt to broaden the definition of refugee, keeping clearly within the terms of subsidiary protection. This language evidences that the EU does not have the opinio juris that the definition of refugee is broader than the Refugee Convention, although it does express an opinio juris that there may be a norm of supplementary subsidiary protection. 4. Other Instances of International Organization Practice and Opinio Juris It can also be argued that there is opinio juris for an expanded definition based on UN Declarations dealing with enforced disappearances and extra-legal executions,270 extradition treaties, and international humanitarian law.271 However, by their own terms these declarations do not appear to strive for an expanded definition of refugee but only provide for expanded (or narrowed) prohibitions on expulsion.272 Some have suggested that the 1992 Rio Declaration, the UN Framework Convention on Climate Change and the Convention on Biological Diversity, and Agenda 21 contain obligations to adopt a program of common responsibility for sustainable development and prevention of environmental refugees.273 Could 267 See Directive, art. 2(c) a third country national who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group, is outside the country of nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country, or a stateless person, who, being outside of the country of former habitual residence for the same reasons as mentioned above, is unable or, owing to such fear, unwilling to return to it, and to whom Article 12 does not apply. See Treaty on the European Community, Protocol 29 on asylum for nationals of Member States of the European Union, BK. I, VOL. I, EUROPEAN UNION, SELECTED INSTRUMENTS TAKEN FROM THE TREATIES 561 (1999) (however, note that the Protocol strangely allows for an exception for EU nationals where the receiving Member State unilaterally chooses to examine the application, see para.(d)). 269 See Case C-465/07, Meki Elgafaji & Noor Elgafaji v. Staatssecretaris van Justitie, Judgment (Eur. Ct. Just., Grand Ch., Feb. 17, 2009). 270 See UN Declaration on the Protection of All Persons from Enforced Disappearance, art. 8 (1992; UN Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions, Principle 5 (1989). 271 See Fourth Geneva Convention, (Convention Relative to the Protection of Civilian Persons in Time of War), arts. 3, 5, 45, 49 (1949); Additional Protocol II to the 1949 Geneva Conventions, art. 17. But see Bradvica v. Immigr. & Natl’ztion Serv., 128 F. 3d 1009, 1014 (7th Cir., 1997); Matter of Medina, 19 I. & N. Dec. 734 (Bd. Immigr. Appls., 1988); (holding that the Geneva Conventions relating to POWs “do not create individual remedy for relief from deportation”). 272 See generally Sibylle Kapferer,, External Consultant, UNHCR, Dep’t of Int’l Protection, Protection Policy & Legal Advice Sec., The Interface between Extradition and Asylum, Legal & Prot. Pol’y Research Ser. (Nov. 2003) (discussing the relationship between extradition and asylum). 273 See Arthur C. Helton, The Legal Dimensions of Preventing Forced Migration, 90 PROC. AM. SOC’Y INT’L L. 546 (1996) 268 44 this obligation include an obligation to receive “environmental refugees”, and thus expand the definition of refugee in customary international law? Lacking explicit treaty law or clear evidence of customary international law, this appears to be a weak argument.274 The UN Codification Division concluded that “international law has yet to confer refugee status on victims of environmental conditions”275 which appears to be the correct assessment. 5. Conclusion on International Organization Practice and Opinio Juris Based on the foregoing, the practice of international organizations is rather inconsistent. In general, it suggests a practice and opinio juris to expand the scope of protection to deserving individuals, but it also shows a reluctance to use the term “refugee” explicitly to expand the conventional definition in customary international law. Instead, the approach seems to be to provide for supplementary categories of subsidiary protection. It may very well be that customary international law now provides for a norm of subsidiary protection. However, this limited contribution by international organizations, combined with the contribution of specially interested states, the primary makers of customary international law, might result in expansion of The 1992 Rio Declaration had the mandate to develop international law in the area of sustainable development. Two treaties adopted at the United Nations Conference on Environment and Development (UNCED), the UN Framework Convention on Climate Change and the Convention on Biological Diversity, although primarily aimed at sustainable development, had provisions to develop human rights standards. Agenda 21, adopted by states at UNCED, was the program of action designed to implement and make policy according to the agreements made in Rio. Agenda 21 reflects the importance of law in enforcing agreements that promote compliance with sustainable development initiatives and environmental equity. The Rio Declaration, which proclaims the principle of common responsibility, is a starting place to promote strategies to prevent migrations that result from environmental causes. But see L.F. (Ukr.) v Min. Int., Case No. 5 Azs 38/2003-58 (Sup. Admin. Ct., Cz. Rep., Feb. 25, 2004) (holding that environmental conditions, such as the damage to the region surrounding the Chernobyl nuclear reactor, could not serve as the basis for a claim to refugee status). 274 See Kate Romer, “Environmental” Refugees?, 25 FORCED MIGR. REV. 61 (May 2006) According to the International Federation of Red Cross and Red Crescent Societies in their World Disasters Report 2001, more people are now forced to leave their homes because of environmental disasters than war. Civil society actors in Australia have joined international lobbies pressuring governments to recognise the group increasingly called ‘climate refugees’ … No international or national legislation explicitly recognises or defines ‘environmentally displaced persons’ and there are no bodies mandated to offer them protection. The Guiding Principles for Internal Displacement covers those displaced by natural or human-made disasters. Principles 1027 detail the protection that should be provided during displacement but this only applies to those who have not crossed an international border. In order to address these gaps advocacy groups are seeking expansion of the term ‘refugee’ 275 See UN Secretariat Memo, supra note 47: Rising sea levels, desertification and shrinking freshwater supplies will create up to 50 million environmental refugees by the end of the decade, experts warn today. Janos Bogardi, director of the Institute for Environment and Human Security at the United Nations University in Bonn, said creeping environmental deterioration already displaced up to 10 million people a year, and the situation would get worse. “There are well-founded fears that the number of people fleeing untenable environmental conditions may grow exponentially as the world experiences the effects of climate change,” Dr Bogardi said. “This new category of refugee needs to find a place in international agreements. We need to better anticipate support requirements, similar to those of people fleeing other unviable situations.” “The Red Cross says environmental disasters already displace more people than war. Such people are currently not recognised under international agreements as refugees, Dr Bogardi said, so are denied access to assistance received by victims of violence or political persecution.” (citing David Adam, 50m environmental refugees by end of decade, UN warns, THE GUARDIAN (12 Oct. 2005). 45 the definition under customary international law to cover a wider scope of deserving individuals. In particular, it appears that there is a definition of refugee under customary international law that covers, in addition to conventional refugees, (1) individuals who would suffer torture, inhuman or degrading treatment and/or punishment upon return; and (2) individuals that are fleeing a threat to life, security or liberty due to external aggression, armed conflict, occupation, foreign domination or events seriously disturbing public order, including widespread indiscriminate violence. Individuals that might suffer imposition of the death penalty as prescribed by law as a punishment for a crime they committed may in the future be added specifically to that list, but they do not currently fall under the contemporary customary international law definition, excepting cases where the death penalty experience in that state might fall under the protection against return to situations of torture, inhuman or degrading punishment. IV. CUSTOMARY INTERNATIONAL LAW NARROWING THE DEFINITION The above discussion has focused on the expanding definition of refugee and concluded that the definition has most likely been expanded to cover more individuals than just those facing a risk of persecution. This finding, in turn, means that more individuals can qualify for refugee protection. However, refugee qualification has also been contracting in some important ways that may be relevant. If we accept that customary international law may have supplemented the Convention in a “positive” sense (i.e. expanding the definition to offer protection to a wider range of persons), then we must equally consider that customary international law might be operating in a “negative” fashion (i.e. restricting the persons and situations covered). This narrowing of the definition might go farther than the terms of the Refuge Convention. The sources of international law, principally treaty and custom, are generally perceived to be equal, so that a custom can, in theory, operate to restrict obligations incurred under a treaty, although the evidentiary demands for such a change may be rather high.276 A. TERRITORIAL APPLICATION One method that states have been adopting to narrow the application of refugee law is to interpret the territorial application of the Refugee Convention restrictively. Although this is not formally an aspect of the definition of refugee under customary international law, it does impact the definition in the sense of determining when an individual is outside his country of nationality. The US Supreme Court has found that the Refugee Convention does not apply outside of the territory of the US277 and the Immigration and See e.g. Delimitations of the Continental Shelf (U.K./Fr.), Award, para. 47 (Ct. Arb. Under Agmt., June 30, 1977), reprinted at 54 INT’L L. REPS. 6 The Court is directed by Article 2 of the Arbitration Agreement to decide the course of the boundary ‘in accordance with the rules of international law applicable in the matter as between the Parties’; and, as the Parties agree, the rules of international law to be applied by the Court under this rubric are unquestionably the rules in force today. At the same time, the Court recognises both the importance of the evolution of the law of the sea which is now in progress and the possibility that a development in customary law may, under certain conditions, evidence the assent of the States concerned to the modification, or even termination, of previously existing treaty rights and obligations. But the Continental Shelf Convention of 1958 entered into force as between the Parties little more than a decade ago. Moreover, the information before the Court contains references by the French Republic and the United Kingdom, as well as by other States, to the Convention as an existing treaty in force which are of quite recent date. Consequently, only the most conclusive indications of the intention of the parties to the 1958 Convention to regard it as terminated could warrant this Court in treating it as obsolete and inapplicable as between the French Republic and the United Kingdom in the present matter. In the opinion of the Court, however, neither the records of the Third United Nations Conference on the Law of the Sea nor the practice of States outside the Conference provide any such conclusive indication that the Continental Shelf Convention of 1958 is today considered by its parties to be already obsolete and no longer applicable as a treaty in force. 277 276 See e.g. Sale v. Haitian Ctrs. Council, 509 U.S. 155 (1993). 46 Nationality Act (which includes the refugee and asylum provisions) does not apply on Midway Island because it is not formally a part of the US.278 Russia has adopted a similar interpretation, following domestic legal definitions of its territory.279 These interpretations appear to leave a vacuum between the fact that the person is clearly outside his country of nationality and the territorial application of treaty obligations. It does not appear to attempt to redefine the definition of refugee. In addition, aside from certain unusual territorial situations such as Midway Island, states do not appear to claim non-application in their metropolitan territory, so this exception is rare and not widespread. B. INTERNAL FLIGHT OR RELOCATION ALTERNATIVE One of the principal concepts that has developed in the case law is that of internal flight or relocation alternative(s) to regions within the state of nationality where the individual would not suffer the danger that is the basis for refugee qualification. The language of the Refugee Convention does not explicitly provide for internal flight alternative as a discrete basis defeating refugee status and the notion has come under criticism.280 However, the courts of many states have found, on a widespread and fairly consistent basis, that the exception is inherent in the definition, as this section will demonstrate. 278 See In re Li, 71 F. Supp. 2d 1052 (D. Hawaii, 1999). But see Rasul v. Bush, 542 U.S. 466 (2004) (finding that for habeas corpus, the application of US law was wherever the US exercised effective, as opposed to merely formal, sovereignty, such as Guantanamo Bay). 279 See Int’l L. Comm’n, Comments and information received from Governments, U.N. Doc. A/CN.4/604 (26 Aug. 2008) (including the statement by Russia in response to a question by the Special Rapporteur on Expulsion of Aliens) 7. The legal status of illegal immigrants located in the territorial sea or in internal waters, or in the frontier zone excluding port and airport areas. Specifically, apart from port and airport areas, is there an international zone within which an alien would be considered as not having yet entered the territory of the State? If so, how is the extent and breadth of such a zone determined? Russian Federation … Apart from port and airport areas, the following territories may well be considered as international zones in the given sense (i.e., zones within which an alien would be considered as not having yet entered the territory of the State): the territories of railway or car stations/terminals open for international traffic as well as of other specifically designated localities in immediate proximity to the State border where admission to the territory of a State is exercised according to the national legislation. The extent and breadth of these zones are determined by domestic legislation. 280 See ECRE, Position on Art. 1, supra note 261 at paras. 34-7; Univ. of Mich. L. Sch., International Refugee Law: The Michigan Guidelines on the Internal Protection Alternative, adopted at the 1st Colloq. on Challenges in Int’l Refugees Law, Ann Arbor, Mich., Apr. 9-11, 1999 available at http://www.unhcr.org/refworld/docid/3dca73274.html 34. … There is no requirement in the Refugee Convention that a refugee should first seek safety in another part of his or her country of origin before seeking surrogate protection or that the fear of persecution should extend to the whole territory of the country of origin. … 36. ECRE’s position is that the focus of enquiry must always be on whether a refugee claimant has a wellfounded fear of being persecuted in his or her country of origin. 37. As part of the enquiry into well-founded fear in cases where an internal protection alternative may arise ECRE' position is that unless the following criteria can be fulfilled then no internal protection alternative s exists: • • in the proposed site of internal protection, the risk of serious harm for a Convention reason must be less than reasonably likely to occur the claimant must be able to access the area of internal protection in safety and dignity and legally 47 Although not entirely clear on what provisions of the Refugee Convention this interpretation rests, it appears to be a combination of the inclusion clauses, the cessation clause (able to re-avail himself of the protection of the state of nationality) and non-refoulement obligation against returning the individual to the state where he would face persecution.281 In addition, it has also been argued to be inherent in the concept of the need for international protection.282 Because of this unclear basis, it is also unclear whether the existence of the internal flight alternative means that the individual does not qualify (even de facto) as a refugee under the Refugee Convention or whether the individual may qualify (because he was persecuted or faces a real risk of persecution), but falls into an exception of the rule of non-refoulement. This article will address this exception to the degree that it might be considered an exception to the rules on qualification. Although the internal flight requirement is applied by a number of states, there are several different ways that this exception might be applied.283 The House of Lords considered two approaches to the • • • 281 the area of internal protection must be free from conditions which could force the rejected claimant back into the area where there is a risk of serious harm for a Convention reason, i.e. it must offer a durable protection alternative conditions in the area of internal protection must afford at least the same standard of protection of core human rights as the Refugee Convention does (SEE ABOVE) the protection must be afforded by a de jure, not just de facto authority. See UNHCR, Guidelines on International Protection: “Internal Flight or Relocation Alternative” within the Context of Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees, U.N. Doc. HCR/GIP/03/04 (July 23, 2003) 3. Some have located the concept of internal flight or relocation alternative in the “well founded fear of being persecuted” clause of the definition, and others in the “unwilling … or unable … to avail himself of the protection of that country” clause. These approaches are not necessarily contradictory, since the definition comprises one holistic test of interrelated elements. How these elements relate, and the importance to be accorded to one or another element, necessarily falls to be determined on the facts of each individual case. 4. International law does not require threatened individuals to exhaust all options within their own country first before seeking asylum; that is, it does not consider asylum to be the last resort. The concept of internal flight or relocation alternative should therefore not be invoked in a manner that would undermine important human rights tenets underlying the international protection regime, namely the right to leave one’s country, the right to seek asylum and protection against refoulement. Moreover, since the concept can only arise in the context of an assessment of the refugee claim on its merits, it cannot be used to deny access to refugee status determination procedures. A consideration of internal flight or relocation necessitates regard for the personal circumstances of the individual claimant and the conditions in the country for which the internal flight or relocation alternative is proposed. 282 See e.g. Thirunavukkarasu v. Can. (Min. Employ. & Immigr.), [1994] 1 F.C. 589 (CA) (Can. Fed. Ct. Appl., Nov. 10, 1993) The idea of an internal flight alternative (IFA) is “inherent” in the definition of a Convention refugee; it is not something separate. The onus of proof rests on the claimant to show, on a balance of probabilities, that there is a serious possibility of persecution throughout the country, including the area which is alleged to afford an IFA. An IFA cannot be speculative or theoretical only; it must be a realistic, attainable option. The alternative place of safety must be realistically accessible to the claimant. If it is objectively reasonable to live in these places, without fear of persecution, then IFA exists and the claimant is not a refugee. 283 See e.g. • Australia: S.Z.J.N.Y. v. Min. Immigr. & Citz., [2008] F.C.A. 624 (Fed. Ct., May 8, 2008); S.B.T.D. v Min. Immigr. & Citz., [2007] F.C.A. 2050 (Fed. Ct., Dec. 20, 2007); Al-Amidi v. Min. Immigr. & Multicult. Aff’rs, [2000] F.C.A. 1081; (2000) 177 A.L.R. 506 (Fed. Ct.); Abdi v. Min Immigr. & Multicult. Aff’rs, BC200000863 [2000] F.C.A. 242 (Fed. Ct., Mar. 10, 2000); Perampalam v. Min. Immir. & Multicult. 48 interpretation of internal flight.284 The first is that the internal flight alternative should be restrictively applied to situations where (1) there is genuine access to the area of domestic protection (existence of financial, logistical, or other barriers), (2) the protection is meaningful (meets basic norms of civil, political, and socio-economic human rights) and (3) the protection is not illusory or unpredictable.285 The second approach is to compare the situation for persons with the relevant characteristics in the individual’s area of residence and the proposed area of protection.286 This approach was based on UK case law which tends to merely consider whether it is “unduly harsh” to return an individual to the alternate region of the state.287 The House of Lords held in favor of the second approach because the second approach was not Aff’rs, [1999] F.C.A. 165; (1999) 84 F.C.R. 274 (Fed. Ct.); Randhawa v. Min. Immigr. Local Gov’t & Ethnic Aff’rs, (1994) 52 F.C.R. 437 (Fed. Ct.); S.Z.A.T.V. v. Min. Immigr. & Citz., S62/2007, BC200707277, [2007] H.C.A. 40 (High Ct., Aug. 30, 2007); S.Z.F.D.V. v. Min. Immigr. & Citz., S61/2007, BC200707278, [2007] H.C.A. 41 (High Ct., Aug. 30, 2007) Austria: Asylum Law 2005, Legal Gazette Pt. I, No. 100/2005 (July 7, 2005) (providing for the internal flight alternative concept in law, although it had already been developed in practice) Canada: Rasaratnam v. Can. (Min. Employ. & Immigr.), [1992] 1 F.C. 706 (Ct. Appl.); Norbert Okoli v. Min. Citiz. & Immigr., Case No. IMM-2787-08, 209 F.C. 332 (Fed. Ct., Mar. 31, 2009); Sanjivkumar Ram Tripathi, Case No. IMM-2909-08, 2009 F.C. 174 (Fed. Ct., Feb. 19, 2009); Thirunavukkarasu v. Can., [1994] 1 F.C. 589. Also note that Canada might be considered a specially interested state based on the receipt of high numbers of refugees and persons in refugee-like situations, see supra note 80 and accompanying text. France: ECRE Country Report 2004, supra note 5. Also note that France might be a specially interested state, see supra note 82 and accompanying text. Germany: Case No. 9 B 1032/98 (BVerwG, 9 Senat, May 19, 1999); Case No. 1 LA 79/04 (OVG Schleswig-Holstein, Oct. 7, 2004); Case No. 2 LB 54/03 (OVG Schleswig-Holstein, June 16, 2004); Case No. 8 UE 216/02.A (VGH Hessen, Feb. 10, 2005); Case No. 1 K 3266/01 (VG Arnsberg, Mar. 17, 2004); Case No. VG 33 X 302.96 (VG Berlin, Feb. 2, 2004); Case No. A 7 K 31035/03 (VG Dresden, Mar. 16, 2004); Case No. 25 K 3188/03.A (VG Düsseldorf, Dec. 16, 2004); Case No. 6 K 4833/03.A (VG Düsseldorf, July 15, 2004); Case No. 7 K 1517/00.A (VG Frankfurt/Oder, Mar. 2, 2004); Case No. 5a K 8121/95.A (VG Gelsenkirchen, Nov. 11, 2004); Case No. A 11 K 10417/02 (VG Karlsruhe, Mar. 10, 2004); Case No. A 11 K 12230/03 (VG Karlsruhe, Mar. 10, 2004); Case No. 2 E 1598/02.A (VG Kassel, June 2, 2004); Case No. 2 A 94/01 (VG Lüneburg, Feb. 26, 2004); Case No. 9 K 4856/03.A (VG Minden, Apr. 26, 2004); Case No. 5 K 1900/03.NW (VG Neustadt a.d.W, Apr. 26, 2004); Case No. 1 A 2944/01 (VG Oldenburg, May 17, 2004); Case No. 7 E 2245/03.A(V) (VG Wiesbaden, Nov. 4, 2004). Also note that Germany might be a specially interested state, see supra note 68. New Zealand: Butler v. A.G., CA 181/97 [1999] N.Z.A.R. 205, paras. 32, 50 (Ct. Appl., Oct. 13, 1997); Refugee Appl. No. 71684/99, [2000] I.N.L.R. 165, paras. 57-61 (Ref. Status, Appls. Auth.) Switzerland: In re M.C.C., Dec. 2006/2 – 015 (Switz. Asylum Appls Comm’n, 13 Dec. 2005) UK: Sec’y St. Home Dep’t v. A.H. (Sudan) et al., [2007] U.K.H.L. 49 (H. Lords, Nov. 14, 2007); Januzi et al. v. Sec’y St. Home Dep’t, [2006] U.K.H.L. 5 (H. Lords, Feb. 15, 2006); Jasim v. Sec’y St. Home Dep’t, [2006] EWCA Civ 342, [2006] All ER (D) 453 (Mar) (Ct. Appl., Civ. Div., Mar. 30, 2006); Karanakaran v. Sec’y St. Home Dep’t, [2000] E.W.C.A. Civ. 11 (Ct. Appl., Jan. 25, 2000); K.A. et al. v. Sec’y St. Home Dep’t, ((domestic violence – risk on return) Pakistan CG) [2010] U.K.U.T. 216 (IAC) (Upper Trib., Immigr. & Asylum Ch.); T.K. et al. v. Sec’y St. Home Dep’t, ((Tamils – LP updated) Sri Lanka CG) [2009] U.K.A.I.T. 49 (Asylum & Immigr. Trib.) US: Trung Van Truong et al. v. Holder, 613 F. 3d 938 (9th Cir., July 27, 2010) • • • • • • • • 284 See Januzi v. Sec’y St. Home Dep’t, [2006] U.K.H.L. 5 (Bingham, L.) (distinguishing two approaches to internal flight alternative) 285 See id. 286 See id. 287 See Sec’y St. Home Dep’t v. A.H., [2007] U.K.H.L. 49; Januzi v. Sec’y St., [2006] U.K.H.L. 5 (“The words “unduly harsh” set the standard that must be met for this to be regarded as unreasonable.”); Karanakaran v. Sec’y St. Home Dep’t, [2000] E.W.C.A. Civ. 11 (“When assessing the reasonableness of internal flight alternative, the decision-maker should simply ask: would it be “unduly harsh” to expect the applicant to settle there?”) 49 mandated by the EU Council Directive 2004/83/EC, the Refugee Convention did not appear to provide a basis for it, there was no sufficient practice to support it, and the Lords thought it would be strange to permit an individual to escape the general conditions of life that all his fellow countrymen suffered under just because he would suffer persecution in one area of the country.288 The cases in other countries appear to fall on either end of this spectrum or somewhere in between. Countries such as France289 and Switzerland290 appear to apply a test closer to that of the first approach, whereas countries such as Germany291 appear to take the second approach generally. The European Union has established a slightly different test whether the individual could lead a “normal life” in the alternate region.292 The ECHR has held only that establishing an internal flight alternative test is acceptable as long as refoulement to persecution does not result.293 Because this exception is widespread, and also because the test could be argued to be inherent in the refugee qualification regime, the internal flight/relocation alternative exception appears to be part of refugee law under customary international law. Which of the two extremes of the exception, or somewhere in between, is not entirely clear; however, it is more likely to be the approach favored by the House of Lords. The reason to favor this interpretation is that, if the exception is partly arising from the terms of the Refugee Convention itself, then the Convention is merely requiring non-refoulement to persecution (as well as torture and situations of serious internal disturbances under customary international law), so that an individual is not relieved of the general conditions of life for his countrymen, that do not rise to the level of qualifying for refuge. See Januzi v. Sec’y St., [2006] U.K.H.L. 5. See ECRE Country Report 2004, supra note 5 (“The Commission examines the possibility for applicants to have a ‘normal life’ in another part of the country, taking into account social and economic criteria, as well as the possibilities of finding a job.”) Also note that France may be considered a specially interested state based on the receipt of high numbers of refugees and persons in refugee-like situations. See infra note 82 and accompanying text. 290 See e.g. In re M.C.C., Dec. 2006/2 – 015 (holding that in certain conditions return to Somalia might be reasonable, e.g. special strong ties to the safe region, able to establish a stable existence, ability to rely on a functioning family/clan structure, etc.; however, the court determined that it was not reasonable in the situation at hand). 291 See e.g. Case No. 1 LA 79/04 (OVG Schleswig-Holstein, Oct. 7, 2004) (only examining the risk of persecution in the safe area); Case No. 1 K 3266/01, VG Arnsberg (17 Mar. 2004) (same); Case No. 25 K 3188/03.A, VG Düsseldorf (16 Dec. 2004) (same); Case No. 6 K 4833/03.A, VG Düsseldorf (15 July 2004) (same); Case No. A 11 K 10417/02, VG Karlsruhe (10 Mar. 2004) (same); Case No. 2 E 1598/02.A, VG Kassel (2 June 2004) (same); Case No. 2 A 94/01, VG Lüneburg (26 Feb. 2004) (same); Case No. 1 A 2944/01, VG Oldenburg (17 May 2004). But see e.g. Case No. 2 LB 54/03, OVG Schleswig-Holstein (16 June 2004) (examining the degree of effective government); Case No. 8 UE 216/02.A, VGH Hessen (10 Feb. 2005) (same); Case No. VG 33 X 302.96, VG Berlin (2 Feb. 2004) (same); Case No. A 7 K 31035/03, VG Dresden (16 Mar. 2004) (same); Case No. 7 K 1517/00.A, VG Frankfurt/Oder (2 Mar. 2004) (same); Case No. 5a K 8121/95.A, VG Gelsenkirchen (11 Nov. 2004) (same); Case No. 9 K 4856/03.A, VG Minden (26 Apr. 2004) (same); Case No. 5 K 1900/03.NW, VG Neustadt a.d.W (26 Apr. 2004) (same); Case No. 7 E 2245/03.A(V), VG Wiesbaden (4 Nov. 2004). Also note that Germany may be considered a specially interested state , see infra note 68 and accompanying text. 292 See Qualif. Dir., supra note 120 at art. 8(1) (providing that states may reject claims for refugee status if there is an internal flight alternative); ECRE Country Report 2004, supra note 5 (“The Commission examines the possibility for applicants to have a ‘normal life’ in another part of the country, taking into account social and economic criteria, as well as the possibilities of finding a job.”) 293 See Salah Sheekh v. Neths., Appl. No. 1948/04 (Eur. Ct. Hum. Rts., Jan. 11, 2007): 289 288 The indirect removal of an alien to an intermediary country did not affect the responsibility of the expelling contracting state to ensure they were not, consequently, exposed to treatment contrary to Article 3 of the ECHR. There was no reason to hold differently where expulsion was to a different area of the country of origin. 50 C. SAFE THIRD COUNTRY OR COUNTRY OF ORIGIN POLICIES States also apply safe third country and/or safe country of origin tests to refuse claims without further review.294 Similar to the discussion above, there are two approaches to applying this test. The first approach is considering a safe third country as a factor in the assessment of whether the person qualifies under the Convention, but it is also applied as a means to refuse claims outright without analysis if the individual is coming from a country that has been deemed safe. This second possibility is often paired with expedited processes procedures. It is this second practice that will addressed here. It goes without saying that no state is entirely safe. The UNHCR reports on the state of origin of refugees or other persons of concern. The list is surprising universal, including persons from most states in the world. Although there are clearly states that produce a significant amount of refugees,295 even Gibraltar, Palau, the Turks and Caicos Islands, Brunei, Luxembourg, St. Kitts and Nevis, Samoa, Tuvalu, San Marino, Nauru, Norway, Finland, Tonga, Timor-Leste, Iceland, Lesotho, Malta, Andorra, Cyprus, Macao, and Ireland produce a handful of refugees each per year.296 States have provided under their municipal laws for the discretion to refuse claims where the individual is in transit from a safe country.297 The arguments for these policies are that (1) in order to manage the 294 See e.g. • Austria: I. (2006/19/0967) v. Indep. Fed. Asylum Bd. (“UBAS”) (VwGH [Admin. Ct.], Sept. 21, 2006); 2003/01/0534 v. UBAS (VwGH, Nov. 9, 2004); G.M. (99/21/0163) v. UBAS (VwGH, Dec. 13, 2002) (applying safe third country test but finding that the refugee did not find safety in the third country, namely Hungary) Canada: Council for Refugees et al. v. H.M. the Queen (Can.), Case No. IMM-7817-05, [2007] F.C.J. No. 1583l; [2007] F.C. 1262; 162 A.C.W.S. (3d) 813; 317 F.T.R. 246 (Fed. Ct., Nov. 29, 2007) (Phelan J.) affirming Queen v. Can. Council for Refugees, Case No. A-37-08, [2008] F.C.A. 229 (June 27, 2008) (Noël, J.A.) (applying safe third country test but finding that the refugee did not find safety in the third country, namely US) Germany: Case No. 2 BvR 1938, 2315/93 (BVerfG, May 14, 1996) (regarding transit from Iraq through safe countries) Norway: In re A (Serbia) (Immigr. Appls Bd., Grand Bd., Dec. 14, 2006) (regarding flight from Kosovo but safe residence in Serbia for five years) Spain: Carlos Jesús v. Admin. del Estado, Rec. 5515/2001 (Trib. Sup. [Spec. Nat’l Ct. (Admin.)], Sala 3, Sec. 5, Oct. 6, 2004) (transit from Cuba through Switzerland) Switzerland: S.A.R. v. Swiss Fed. Ofc. of Refugees, (AAC, Jan. 23, 2001) (one month in safety in Iran); M.A. v. Swiss Fed. Ofc. of Refugees (AAC, Mar. 10, 2000) Australia: V872/00A et al. v. Min. Immigr. & Multicult. Aff’rs, 69 A.L.D. 615 (Fed. Ct., June 18, 2002) US: INA § 208(a)(2)(A); Nanda Si & Nyan Thar Min Nyo v. Holder, 08-4025-ag (L); 09-3373-ag (Con) NAC, 2010 U.S. App. LEXIS 8981 (2d Cir., Apr. 30, 2010); Makadji v. Gonzales, 470 F. 3d 450 (2d Cir., Dec. 5, 2006) (flight from Mauritania but safe residence in Mali for ten years); Maharaj et al. v. Gonzales, 450 F. 3d 961 (9th Cir., June 9, 2006) • • • • • • • 295 See UNHCR website available at http://www.unhcr.org/statistics/49a2c7ff2.html (for statistics dated at the end of 2007). The states from which the most refugees come are as follows: Iraq (2,279,245), Afghanistan (1,909,911), Sudan (523,032), Somalia (455,356), Burundi (375,715), D.R. Congo (370,386), Palestinian Territories (335,219) and Vietnam (327,776). 296 See UNHCR website available at http://www.unhcr.org/statistics/49a2c7ff2.html. Also see id. for additional refugee statistics on small numbers of refugees from a variety of states and territories, e.g. Hong Kong (11), New Zealand (13), Bahamas (14), Denmark (14), Botswana (16), Sweden (16), Belize (17), and the Maldives (17). 297 See e.g. 51 countless number of applications, it is efficient and in line with the Refugee Convention to assess certain states as safe and deny all applicants from that state, and (2) individuals should not engage in forumshopping for the adjudication of their refugee status claim but should instead apply in the first safe country they reach. Based on these arguments, states designate certain states as “safe” and prohibit application from their nationals and, if their state of origin is not safe, return individuals to the first safe state that the individual reached upon fleeing. There is no provision in the Refugee Convention for these policies, since the definition of refugee only considers whether the person is outside his state of nationality and whether he qualifies. Nonetheless, the US has adopted safe third country legislation298 as has Finland,299 France,300 Germany,301 Ireland,302 Switzerland,303 among others, as have the non-EU states of Belarus304 and • • Canadian-America arrangements: Immigration and Refugee Protection Act, S.C. 2001, c. 27, § 102 (Can.) (providing designation to designate safe third countries); Immigration Act, 1976, R.S. 1976-77, c. 52, as amended by S.C. 1988, c. 35 & 36 (Can.) (providing for designating safe third countries); INA § 208(a)(2)(A) as amended by Illegal Immigration Reform and Immigrant Responsibility Act, Pub. L. No. 104-208, 110 Stat. 3009-690 (Sept. 30, 1996) § 604 (US) (permitting bilateral or multilateral agreements to establish safe third countries); Bilateral agreements – see e.g. US-Can. Smart Border Declaration, Dec. 12, 2001, available at www.canadianembassy.org/border/declaration2-e.asp.e Also note that Canada and the US might be considered specially interested states, see supra notes 74 and 80, and accompanying text. EU arrangements: Convention Determining the State Responsible for Examining Applications for Asylum Requests Lodged in one of the Member States of the European Communities, June 15, 1990, reprinted at 30 INT’L L. MATS. 425; Convention applying the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the Gradual Abolition of Checks at their Common Borders, June 19, 1990, reprinted at 30 INT’L L. MATS. 84; Schengen Agreement, 1985 (introducing safe third country concept to EU); Dublin Convention, 1990 (providing system for determining the responsible state since all EU states were deemed safe); Council Reg. (EC) 343/2003 (Feb. 18, 2003) Establishing the Criteria and Mechanisms for Determining the Member State Responsible for Examining an Asylum Application Lodged in One of the Member States by a Third-Country National, 2003 Of. J. (L 50) 1-10 (Feb. 25, 2003) (known as the “Dublin II”, which integrates the principles of the 1990 Dublin Convention into the community context). See INA §208(a)(2)(A). See Nina Lassen & Jane Hughes, eds., Danish Refugee Council, Safe Third Country Policies in European Countries 2 (Jan. 14 1998) available at http://www.drc.dk/eng/pub/safe3rd/finland.html (discussing Finland and explicitly designating the safe countries in the text). 300 See ECRE Country Report 2005, supra note 119 (noting that France created a list of “safe countries of origin” in June 2005). Also note that France may be considered a specially interested state , see supra note 82. 301 See Asylum Procedure Act, June 26, 1992, § 26a, BGBI. I S.1430, Ann. I (July 1, 1992) (explicitly designating the safe countries in the text and including all EU states and EFTA states, and Poland the Czech Republic which were not EU states at the time); GUY GOODWIN-GILL, THE REFUGEE IN INTERNATIONAL LAW 348, nn. 98-9 (2nd ed. 1998) (reporting on the Swiss and German laws on safe third countries, specifically that both Switzerland and Germany designated Bulgaria, the Czech Republic, Gambia, Ghana, Hungary, Poland, Romania, Senegal, and the Slovak Republic, as safe); Sam Blay & Andreas Zimmermann, Current Development, Recent Changes in German Refugee Law: A Critical Assessment, 88 AM. J. INT’L L. 361 (Apr. 1994). Also note Germany’s importance as a specially interested state, see supra note 68. 302 See Refugee Act 1996, sec. 4(a), as amended; ECRE Country Report 2005, supra note 119 (“Designations of safe country of origin status were made, and continued in force in 2005 regarding Romania, Bulgaria, Croatia and South Africa; however Nigeria was not included in this safe country of origin list.”); Eur. Council Refs. & Exiles, ECRE Country Report 2003: Synthesis, available at http://www.ecre.org/files/01.%20Synthesis.pdf (Ireland has only placed Nigerians in the expedited process under this ground). 303 See Law on Asylum Procedure of 1982 (border police were allowed to reject asylum applicants if the applicants had been “safe from persecution in another country”); GOODWIN-GILL, REFUGEE, supra note 301 at 348, nn. 98-9. 304 See Law “On Refugees” reported in Eur. Council Refs. & Exiles, Country Report 2006: Belarus, Moldova, Russia, Ukraine: Belarus, available at http://www.ecre.org/files/Annual%20report%20General%20English.pdf (hereinafter “ECRE Country Report 2006”). 299 298 52 Norway.305 Many of these European states were quick to designate other EU and EFTA states as “safe”. In addition the Qualification Directive defines refugees as “third party nationals or stateless persons”, meaning that EU nationals are excluded from the definition.306 What is curious is that of the other EU states not already mentioned above as producing refugees (Luxembourg, Finland, Malta, Cyprus, and Ireland, and the EU-linked entities of Gibraltar, Iceland, San Marino, Norway, and Andorra), the UNHCR reports the following states as the country of origin of refugees: Austria (23 refugees from Austria in other states), Belgium (60), Bulgaria (3,311), Czech Republic (1,384), Estonia (262), France (101), Germany (129), Greece (92), Hungary (3,386), Italy (90), Latvia (662), Lithuania (466), the Netherlands (43), Poland (2,915), Portugal (32), Romania (5,306), Slovakia (342), Slovenia (52), Spain (41) and the UK (200). To this list of EU countries, we can also add the EFTA state of Switzerland (31). The Qualification Directive therefore appears to be an attempt to redefine the meaning of refugee and exclude individuals qualifying under the Refugee Convention. In addition, to exclusion of other European nationals, Germany and Switzerland have both also designated Gambia, Ghana and Senegal as “safe”, and excluded their nationals from qualifying as refugees accordingly. This act is strange in that the UNHCR names those states as the country of origin of the following numbers of refugees, 1,267; 5,060; and 15,896; respectively, so the designation as “safe” does not appear to be entirely accurate to say the least. The UK has designated all of the countries of the former U.S.S.R. as safe counties.307 In sum, certain states have asserted a right to redefine the qualification as a refugee and limit the application of the Refugee Convention. In addition to this policy, some states have also created an expedited processing mechanism for certain applicants for recognition of refugee status. The UK has adopted 24-hour expedited processing for individuals with the following nationalities: Ghana, India, Nigeria, Pakistan, Poland, Romania and Uganda. This expedited processing appears to have a normative effect in that applications reviewed through expedited processing resulted in almost a 100% refusal rate (5,735 refusals, 3 grants, and 996 See ECRE Country Report 2003: Synthesis, supra note 302. See Qualif. Dir., supra note 130 at art. 2(c). Also see EU Council Dir. 2005/85/EC on minimum standards on procedures in Member States for granting and withdrawing refugee status (Dec. 1, 2005), Ann. II, O.J. L 326 p. 1334 (Dec. 13, 2005) (hereinafter “Granting Refugee Status Dir.”) 306 305 Designation of safe countries of origin for the purposes of Articles 29 and 30(1) A country is considered as a safe country of origin where, on the basis of the legal situation, the application of the law within a democratic system and the general political circumstances, it can be shown that there is generally and consistently no persecution as defined in Article 9 of Directive 2004/83/EC, no torture or inhuman or degrading treatment or punishment and no threat by reason of indiscriminate violence in situations of international or internal armed conflict. In making this assessment, account shall be taken, inter alia, of the extent to which protection is provided against persecution or mistreatment by: (a) the relevant laws and regulations of the country and the manner in which they are applied; (b) observance of the rights and freedoms laid down in the European Convention for the Protection of Human Rights and Fundamental Freedoms and/or the International Covenant for Civil and Political Rights and/or the Convention against Torture, in particular the rights from which derogation cannot be made under Article 15(2) of the said European Convention; (c) respect of the non-refoulement principle according to the Geneva [Refugee] Convention; (d) provision for a system of effective remedies against violations of these rights and freedoms. 307 See Arthur C. Helton, Forced Migration in Europe, 20-Fall FLETCHER F. WORLD AFF’RS 89, 97 n. 35 (1996) (citing British Immigration Plan, 2(10) MIGR. NEWS (Dec. 1995)). 53 pending).308 This result is that individual cases that are selected for expedited processing have been prejudged as failing. The number of refugees from those states of origin mentioned as reported by UNHCR has already been noted immediately above, but we can recall the numbers for India (20,463), Nigeria (13,902), Pakistan (31,858), and Uganda (228,959). Again, this policy appears out of line with the reality of significant refugee flows from those states. Courts have accepted the right of states to refuse to accept claims based on safe third country criteria, but have demanded that the claims be assessed on their merits rather than procedurally refused based on the stated country of transit (or on other criteria deemed to apply to the country such as merely having signed the Refugee Convention or the ECHR).309 The UNHCR Executive Committee has additionally argued that states should not deny asylum simply because it may be sought elsewhere.310 Clearly, the adoption of 308 309 See GOODWIN-GILL, REFUGEE, supra note 301 at 348, nn. 98-9; Helton, Forced Migration, supra note 307 at 98-9. See e.g. • • Bulgaria: In re Abdusalam, Case NB-46/2004 (Sofia City Ct., 3-G Dep’t, 9 Feb. 2004) (must consider the merits of an individual case, it can not base a negative decision purely on the fact that the country of origin is considered a safe country). Canada: Can. Council for Refugees et al. v. H.M. the Queen (Can.), Case No. IMM-7817-05, [2007] F.C.J. No. 1583l; [2007] F.C. 1262 (Fed. Ct., Nov. 29, 2007) (holding that the US is not a safe third country for refugees due to one-year bar on asylum applications, exclusions from asylum for broadly interpreted terrorist activities, and poor appreciation of gender and sexual orientation asylum claims; also discussing the Safe Third Country Agreement, Washington D.C., 5 Dec. 2002, Can.-U.S. (entered into force Dec. 2004) (providing that refugees arriving at the national border and requesting asylum must be returned to the other country so that the refugee may apply there)); Canada AG v. Ward, [1993] 2 S.C.R. 689, 725 (Sup. Ct. Canada, June 30, 1993); Kadenko v. Canada (SG), [1996] 143 D.L.R. (4th) 532 (Fed. Ct. Appl.); Can. (Min. Employ. & Immigr.) v. Satiacum, [1989] 99 N.R. 171 (Fed. Ct. Appl.) (courts will presume that state parties to the Refugee Convention will interpret the Convention fairly). Also note that Canada might be considered a specially interested state, see supra note 80. Sweden: Decision (Migrationsdomstolen [Migration Ct.], Malmö, Sept. 6, 2010) reported at Greece ' Unfit' for Asylum Reviews: Swedish Court, THE LOCAL (Sept. 6, 2010) available at http://www.thelocal.se/28804/20100906/ (finding an implicit exception to the Dublin II agreement of strong humanitarian grounds for refusal to return a person to the EU Member State of first arrival to the EU and reviewing the quality of the sister Member State’s asylum determination procedures and jurisprudence). Also note that Sweden might be considered a spcially affected state, although it is less affected than some other states, see supra note 84. UK: R. (Yogathas) v. Sec’y St. Home Dep’t, [2003] 1 A.C. 920 (H. Lords) (following the reasoning in T.I. v U.K., infra, but holding that a particular state’s slightly different interpretation of the Refugee Convention did not result in a risk of refoulement); R v. Sec’y St. ex parte Adan, [2001] 2 A.C. 477 (H. Lords, Apr. 2, 1998) (holding that the particular state’s different interpretation of the Refugee Convention did result in a risk of refoulement because that country did not recognize persecution by non-state agents); R. v. Sec’y St. ex parte Salas (unreported) (July 10, 2000) (cited in Can. Council for Refugees v. the Queen, [2007] F.C. 1262 (Fed. Ct., Can., Nov. 29, 2007)). Also note that the UK might be considered a specially interested state, see supra note 72. • • Also see T.I. v. U.K, Appl. No 43844/98, (Eur. Ct. Hum. Rts, 2000) (UK could not rely automatically on arrangements made in the Dublin Convention to refuse to assess the claim, must examine whether the “safe” country operated under a different interpretation of the Refugee Convention criteria but was nonetheless sufficient protection against the risk of indirect refoulement). 310 See UNHCR, Exec. Comm., Concl. No. 15 (XXX), para. (h)(iv): 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. Where, however, it appears that a person, before requesting asylum, already has a connexion or close links with another State, he may if it appears fair and reasonable be called upon first to request asylum from that State. 54 safe third country policies appears to be at odds with the UNHCR determination of state of origin of refugees, and the policies accordingly appear to violate the Refugee Convention where they do not permit substantive assessment of qualifications under the Refugee Convention. In addition, some have argued that safe third country policies violate the ECHR.311 In sum, there appears to be a growing trend in favor of safe third country or country of origin policies. The states that impose such policies are not the most representative, although they do include a few specially interested states. Even if we could find that a rule of customary international law has crystallized, it is important to note that those policies may not operate as procedural denial of claims. Instead, it appears that the safe country policies must operate at a level of holistic substantive review. Therefore, the refugee definition as a person outside his country of nationality has evolved to only cover a person outside his country of nationality who has not arrived in any other safe country yet. D. PROHIBITIONS ON APPLYING FOR RECOGNITION OF REFUGEE STATUS In addition, states have sometimes imposed certain regulations that entirely prohibit the filing of an application for refugee status (or demand an automatic denial of an application that was filed) in certain circumstances. These provisions are also not narrowing affecting the definition of refugee, but assessing the broader scope of refugee status, they will be considered here briefly. Note that in some of these situations, the burden of proof is placed on the applicant to establish that he has no disqualifying acts or conditions.312 Mandatory denial of asylum or withholding of removal is required in some states if applicant is a “terrorist”313 or is a former Nazi or “genocidaire”.314 Although it may be acceptable under the Refuge Convention to refuse refugee status to those who have persecuted others,315 committed a particularly serious crime,316 or a serious non-political crime317 or is otherwise a danger to state security,318 these cases appear to refuse refugee status based on another status – simply being a “terrorist”, “Nazi” or “genocidaire” – rather being based on the specific culpable acts the person undertook. The recent judgment of the European Court of Justice in the joined case Bundesrepublik Deutschland v. B & D seems to have disposed of any traction this rule may have had as a seed of customary international law when it Also see UNHCR, Note on International Protection, supra note 260 (advising that often claimants are sent to a safe third country but that country fails to accept responsibility for the individual who is then returned to their country of origin); UNHCR, Conclusions on the International Protection of Refugees adopted by the Executive Committee of the iWHCR Programme 33 (1980); Sztucki. J., The Conclusions on the International Protection of Refugees Adopted by the Executive Committee of the UNHCR Programme, 1 INT’L J. REF. L. 285 (1989). 311 See Kathleen Marie Whitney, Does the European Convention on Human Rights Protect Refugees from “Safe” Countries?, 26 GA. J. INT’L & COMP. L. 375 (Spr. 2007) (arguing that the ECHR prohibits states from expelling refugees to “safe” countries). 312 See e.g. 8 Code Fed. Regs. §§208.13(c)(2)(ii), 1208.13(c)(2)(ii); Chay-Velasquez v. Ashcroft, 367 F. 3d 751 (8th Cir., 2004); Ahmetovic v. Immigr. & Natz. Serv., 62 F. 3d 48 (2d Cir., 1995) (holding that international legal obligations did not compel finding that the burden of proof was unlawful). Also note that the US might be considered a specially interested state, see supra note 74. 313 See e.g. REAL ID Act of 2005, §101(b), Pub. L. No. 109-13 (May 11, 2005); INA §212(a)(3)(B)(i)(I) – (IV), (VI); §237(a)(4)(B). 314 See e.g. INA §237(a)(4)(D). 315 See e.g. INA §241(b)(3)(B)(i); 8 USC §1231(b)(3)(B)(i); In the Matter of A-H-, 23 I. & N. Dec. 774 (A.G., 2005). 316 See e.g. INA §241(b)(3)(B)(ii); 8 USC §1231(b)(3)(B)(ii); Alaka v. A.G., 456 F. 3d 88 (3d Cir., 2006). 317 See e.g. INA §241(b)(3)(B)(iii); 8 USC §1231(b)(3)(B)(iii); Khouzam v. Ashcroft, 361 F. 3d 161 (2d Cir., 2004). 318 See e.g. INA §241(b)(3)(B)(iv); 8 USC §1231(b)(3)(B)(iv); Yusupov v. A.G., 518 F. 3d 185 (3d Cir., 2008). 55 held that “terrorist” status alone cannot be a bar to an individualized refugee status determination applying the usual criteria for such status under international law.319 Some states claim that they may impose a time limit within which the individual must apply for recognition of refugee status, although some states do not.320 Austria permits applications up to three months after entry;321 Belgium had a time limit policy but abolished it;322 Germany and the Czech Republic require an application for recognition to be filed within 48 hours of admission to their respective territories;323 Spain also had a time limit policy until the Spanish Supreme Court ruled that it was a violation of the obligation to consider claims under the Refugee Convention;324 the law in the Ukraine stipulated strict time limits for submission of applications for refugee status (five days for asylum seekers who crossed the Ukrainian border legally and three days for those who crossed the border illegally325), but this law was revised to require an application simply “without delay”;326 and the U.S. requires applicants to file within one year of arrival (unless there are changed circumstances).327 Several states have asserted an obligation that an alien not commit any acts of fraud, misrepresentation or other falsehood in their migration. Failure to comply can result in mandatory denial and return. Among those states are Austria,328 Bulgaria329 and Finland,330 although there are examples of state practice with See Joined Cases C-57/09 & C-101/09, Bundesrepublik Deutschland v. B (C-57/09) & D (C-101/09), Judgment (Eur. Ct. Just., Grand Ch., Nov. 9, 2010). Note that the ECJ initially makes reference to the Refugee Convention as the applicable standard under international law law, although it also refers to Directive 2004/83, discussed above, for the substance of the refugee definition. However, the question in the case principally revolved around the need for an individualized assessment of the exclusionary clause, not the precise definition of refugee existing under international law. See id. at paras. 67, 94. 320 See ECRE Country Report 2006, supra note 304 (e.g. there are no time limits for the submission of applications for refugee status on the territory of Belarus). 321 See Asylum Act 2005 (rendering claims “manifestly unfounded” if filed more than three months after entry, after a residence ban has been executable, or if the asylum-seeker is believed to have deceived the authorities with regard to his/her identity, nationality or submits false documents). 322 See Royal Decree of 3 Feb. 2005 (abolishing time limit of 8 days following arrival, however application after 8 days must be justified or it can still be declared inadmissible). 323 See US Comm. Refs., World Refugee Survey 1994, 135 (1994); Sam Blay & Andreas Zimmermann, Current Development, Recent Changes in German Refugee Law: A Critical Assessment, 88 AM. J. INTL L. 361, 373 (Apr. 1994). 324 See Decision of 23 June 2004 (Sup .Ct., Sp.) (holding that the time limit imposed by Spanish Regulation, R.D. 203/1995, art. 5.6-Asylum, could not be applied to presume the application was manifestly unfounded and must assess the merits). 325 See (Para. 1 Art.9) cited at ECRE Country Report 2006, supra note 304. 326 See id. (“Despite the fact that the time limits for submitting an asylum application were removed from Ukrainian refugee legislation in 2005, and replaced with the term ‘without delay’ – this is in practice interpreted literally and can still be given as a reason for a refusal to accept an asylum application on formal grounds.”) 327 See e.g. INA §208(a)(2)(B), (D); 8 USC §1158(a)(2)(B), (D); Joaquin-Porras v. Gonzalez, 435 F. 3d 172 (2d Cir., 2006). Also note that the US might be considered a specially interested state, see supra note 74. 328 See Asylum Act 2005 (rendering claims “manifestly unfounded” if filed more than three months after entry, after a residence ban has been executable, or if the asylum-seeker is believed to have deceived the authorities with regard to his/her identity, nationality or submits false documents). 329 See Law on Asylum and Refugees, art. 17(2) (2002), as amended Apr. 2005 (allowing revocation of refugee or humanitarian status in cases where the refugee has used a false identity or has concealed material information related to his/her case). 330 See Aliens Act, sec. 108 (“if the applicant has, when applying for asylum deliberately or knowingly given false information which has affected the outcome of the decision, or concealed a fact that would have affected the outcome of the decision.”); ECRE Country Report 2005, supra note 119 (“There have for example been cases of resettlement in which officials have discovered that the person had given misleading information prior to selection as a quota refugee to Finland.”) 319 56 the opposite result – falsehood alone could not be a reason for refusal to examine the application, such as the case in Ireland.331 There does not appear to be any basis in the Refugee Convention for this treatment. If the person qualifies as a refugee under the Convention, then he may not be returned regardless of falsehood. Lastly there are a variety of other miscellaneous practices. Some states impose a mandatory denial of asylum if a previous asylum application was denied and there is no proof of changed circumstances;332 in others there is isolated practice of refusing to honor Article 31(1) of the Refugee Convention that requires states to overlook illegal entry or presence for asylum seekers,333 so applications may be refused on that basis; and in even others the issuance of a visitors visa – required for individuals with the same nationality as major refugee producing states – can be conditional upon a guarantee that the visiting person will not apply for a permanent stay, including asylum,334 again making it possible to refuse refuge on that basis. These are interesting prohibitions on lodging refugee applications, but are so different from each other and diffuse, that none appear to attract such widespread and consistent practice sufficient for the formation of a rule of customary international law. The only rules among these practices that could arguably form the basis for a rule of customary international law are the prohibition on applications by terrorists and other similarly designated persons, the rules on time limits for applications and the rules against fraud. However, the prohibitions on applications by terrorists and similar individuals is not widespread, and in any event is most likely not permissible as a procedural bar. The rules on time limits are so varied in their specific length and the countries with fraud rules are so unrepresentative that they are unlikely candidates for rules of customary international law. In addition, in some of those cases the states have already moved to suspend or modify their time limit requirements, sometimes recognizing their non-compliance with international law in the process. E. RECOGNITION OF REFUSALS BY OTHER STATES Some states also assert a right to expel an individual claiming refugee status without assessing the person’s qualification, based on a quasi-res judicata notion, a recognition of the prior decision of another state either finding that the person was or was not a refugee.335 Additionally, if no status determination See Ref. No. 22, 2006 (Ref. Appls. Trib., 2006) (applicant from Zimbabwe changed story at the appeal stage and was found to have failed to tell the truth at Questionnaire and Interview stage). 332 See e.g. INA §208(a)(2)(C), (D); 8 USC §1158(a)(2)(C), (D); §1129a(c)(7)(C)(ii); Zheng v. Mukasey, 509 F. 3d. 869 (8th Cir., 2007). Also note for this and the following footnotes that the US might be considered a specially interested state, see supra note 74. 333 See e.g. Eur. Council Refs. & Exiles, Hungary, Synthesis of ECRE Country Reports 2002, available at http://www.ecre.org/files/Country_Report_2002.pdf. 334 See ECRE Country Report 2004, supra note 5 (reporting on Denmark): Persons from the main refugee producing countries need a visa in order to travel to Denmark. The visa practice regarding the main refugee producing countries is very restrictive. As a main rule only spouses, cohabitants, minor children and parents can be granted a visa, and in the case of Iraq and Somalia only in extraordinary situations. The visa practice regarding certain other countries is a little less restrictive, in the way that persons outside the closest family can also be granted a visa. But for this group rules implemented in the autumn of 2004 has allowed authorities to make the issuance of a visa conditional upon agreement of a guarantee by the Danish reference of up to 50,000 DKr (approx. 6,700 Euro). The guarantee is due if the person granted a visa for example applies for asylum in Denmark. 335 331 See Granting Refugee Status Dir., supra note 306 Article 32 Subsequent application 57 took place, and the individual was found to likely be a refugee, then EU states comply with the Council Directive ordering the person to be returned to the state where the status determination should have taken place, as discussed above.336 If he was not found to be a refugee in the status determination, then he may be returned to his state of origin without further inquiry.337 These rules also do not appear to have become rules of customary international law. The practice is very isolated, namely within EU (and EEA) states, and the practice must be viewed in the context of the EU system of handling refugee applications and safe third country of origin policies. Therefore, it seems a hard argument that such practice amounts to customary international law. 1. Where a person who has applied for asylum in a Member State makes further representations or a subsequent application in the same Member State, that Member State may examine these further representations or the elements of the subsequent application in the framework of the examination of the previous application or in the framework of the examination of the decision under review or appeal, insofar as the competent authorities can take into account and consider all the elements underlying the further representations or subsequent application within this framework. 2. Moreover, Member States may apply a specific procedure as referred to in paragraph 3, where a person makes a subsequent application for asylum: (a) after his/her previous application has been withdrawn or abandoned by virtue of Articles 19 or 20; (b) after a decision has been taken on the previous application. Member States may also decide to apply this procedure only after a final decision has been taken. 3. A subsequent application for asylum shall be subject first to a preliminary examination as to whether, after the withdrawal of the previous application or after the decision referred to in paragraph 2(b) of this Article on this application has been reached, new elements or findings relating to the examination of whether he/she qualifies as a refugee by virtue of Directive 2004/83/EC have arisen or have been presented by the applicant. 4. If, following the preliminary examination referred to in paragraph 3 of this Article, new elements or findings arise or are presented by the applicant which significantly add to the likelihood of the applicant qualifying as a refugee by virtue of Directive 2004/83/EC, the application shall be further examined in conformity with Chapter II. 5. Member States may, in accordance with national legislation, further examine a subsequent application where there are other reasons why a procedure has to be re-opened. Also see e.g. • Belgium: Amendment of Aliens Act (Sept. 1, 2004), art. 8 (implementing EU Dir. 2001/40 EC on mutual recognition of expulsion decisions (May 28, 2001)) (Minister of Home Affairs can recognise an expulsion decision taken by an administrative authority of another EU Member State bound by the Directive and expel the person based on a danger to public security or non-compliance with the legislation on entry and residence) Switzerland: (creating a ground for inadmissibility to the state due to a negative asylum decision from an EU or EEA country, except for subsequent persecution), reported in ECRE Country Report 2004, supra note 5 UK: R. (Yogathas) v. Sec’y St. Home Dep’t, [2002] U.K.H.L. 36, [2002] 3 W.L.R. 1276 (H. Lords, Oct. 17, 2002) • • 336 See Council Reg. (EC) 343/2003 (Feb. 18, 2003) (establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a thirdcountry national: regulation known as the ‘Dublin II’, which integrates the principles of the 1990 Dublin Convention into the community context). 337 See Granting Refugee Status Dir., supra note 306. 58 F. MANIFESTLY UNFOUNDED APPLICATIONS Another trend in refugee claims is for governments to either refuse to consider applications or consider them in an expedited fashion, when they deem the claim “manifestly unfounded”. States that have adopting this policy include Australia,338 Austria,339 Bulgaria,340 Hungary,341 the Netherlands,342 Norway,343 and the US.344 The Qualification Directive also permits states to refuse claims that are “manifestly unfounded.” 345 States may inquire whether actions by the applicant that give rise to a wellfounded fear of persecution were taken merely as a “pretext” for claiming refugee status.346 See Somaghi v. Min. Immigr. Local Gov’t, & Ethnic Aff’rs, (1991) 31 F.C.R. 100, (1991) 102 A.L.R. 339 (Fed. Ct., Aust’lia) (the court held that “... a person whose sole ground for refugee status consists of his own actions in his country of residence designed solely to establish the circumstances that may give rise to his persecution if he should return to the country of origin.”) 339 See Asylum Act 2005 (providing for subsidiary protection rendering claims “manifestly unfounded” if filed more than three months after entry, after a residence ban has been executable, or if the asylum-seeker is believed to have deceived the authorities with regard to his/her identity, nationality or submits false documents). 340 See Case No. N 3229/2004-Budali (Sofia City Ct., 3-B Dep’t, 28 Mar. 2005 (holding that claim was not contradicted by information regarding Algeria’s human rights record, so it was not manifestly unfounded). 341 See Synthesis of ECRE Country Reports 2002, available at http://www.ecre.org/files/Country_Report_2002.pdf. 342 See De Vereniging Asieladvocaten en – Juristen Nederland (“VAJN”) [Org. Asylum Lawyers in the Neths.] & Het Nederlands Juristen Comité voor de Mensenrechten (“NJCM”) [Neths. Lawyers Comm. for Hum. Rts.] (Dutch Sec. of the Int’l Comm’n Jurists) v. Neths., Ct. Appl., The Hague, Case No. 00/68 KG [KG 99/1251]; LJN: AE9573; NJ (Nederlandse Jurisprudentie) 2002/632 (Ct. Appl., The Hague, 1st Civ. Ch,, Oct. 31, 2002) reprinted at ILDC 143 (NL 2002), affirmed HR C03/018HR, LJN: AO7808, NJ 2006/28 (H.J. Snijders); AB 2005/74 (GAvdV); RvdW 2004/102, (Neths. Sup. Ct., Sept. 3, 2004)) 343 See ECRE Country Report 2004, supra note 5 As of January 2004, the 48-hour-procedure was introduced. This entailed the processing of so-called ‘groundless’ asylum applicants within 48 hours. It was implemented in order to speed up the processing of applicants from countries deemed safe by Norwegian authorities and to discourage the arrival of large numbers of applicants from these countries. Applicants who appear to have a need for protection are taken out of the 48-hour procedure and are processed according to the standard procedure. Applicants whose cases are rejected in this procedure are deported within 72 hours of the final decision. 344 338 The policies sometimes include actual refoulement. See Sale v. Haitian Ctrs. Council, 509 U.S. 155 (1993) (holding that the government could return Haitians directly to Haiti, without access to a refugee determination, if the Haitians were interdicted on the high seas). Also note that the US might be considered a specially interested state , see supra note 74 and accompanying text. 345 See Granting Refugee Status Dir., supra note 306: Article 28 Unfounded applications 1. Without prejudice to Articles 19 and 20, Member States may only consider an application for asylum as unfounded if the determining authority has established that the applicant does not qualify for refugee status pursuant to Directive 2004/83/EC. 2. In the cases mentioned in Article 23(4)(b) and in cases of unfounded applications for asylum in which any of the circumstances listed in Article 23(4)(a) and (c) to (o) apply, Member States may also consider an application as manifestly unfounded, where it is defined as such in the national legislation. … 7. The procedure referred to in this Article may also be applicable in the case of a dependant who lodges an application after he/she has, in accordance with Article 6(3), consented to have his/her case be part of an application made on his/her behalf. In this case the preliminary examination referred to in paragraph 3 of this Article will consist of examining whether there are facts relating to the dependant’s situation which justify a separate application. 346 See Qualif. Dir., art. 4(3)(d). 59 The manifestly unfounded analysis is arguably in violation of the Refugee Convention since the terms of the treaty make no mention of good faith or bad faith actions in the state of refuge that lead to the acquisition of refugee status. The Refugee Convention merely seeks to prevent removal to situations of persecution (aside from clearly articulated cases where the claimant is considered undeserving of refugee status and appear to be the exclusive grounds for consider such). Recalling the language from the UK/France Continental Shelf Delimitation arbitration,347 … the Court recognises both the importance of the evolution of the law of the sea which is now in progress and the possibility that a development in customary law may, under certain conditions, evidence the assent of the States concerned to the modification, or even termination, of previously existing treaty rights and obligations. … only the most conclusive indications of the intention of the parties to the [treaty] to regard it as terminated could warrant this Court in treating it as obsolete and inapplicable … Therefore, it will important to find conclusive indications that any practice and opinio juris is attempting to specifically reverse the treaty, before we can agree that a new, contradictory rule has emerged under customary international law. There appear to be two different applications of this policy: cases where the individual would not qualify on the law even if the facts could be proved (compare to “summary judgment”), and cases where there is merely a lack of evidence. Courts have found that the manifestly unfounded policy cannot be applied in situations where the claim is manifestly unfounded only due to lack of evidence.348 As for the other area of application, the “summary judgment” processing, this policy has been criticized, especially when the designation of “manifestly unfounded” appears to be very liberally used.349 That being said, the UNHCR appears to have accepted the manifestly unfounded assessment practice provided that it is not applied to deny legitimate refugees the status they deserve.350 It might very be that not having the manifestly unfounded policy would actually harm legitimate applicants since their applications might not receive the due care they deserve. The acceptance of this practice by the UNHCR specifically would appear to be fairly conclusive so that, to the degree that the policy contradicts the Refugee Convention, it has reversed it through customary international law. Thus it would appear that the presumption of refugee status, and the rights accrued to those with presumptive refugee status, do not apply in cases where the person clearly does not qualify. In cases in Delimitations of the Continental Shelf (U.K./Fr.), Award, para. 47 (Ct. Arb. Under Agmt., June 30, 1977). See Case NB-604/2004 - Dai Dzyu Huang (Sofia City Ct., Dep’t 3-G, 1 June 2004) (holding that had the claimant given coherent and plausible statements and made a genuine effort to substantiate their story, the application should be referred for further consideration as the manifestly unfounded criteria should not be legally applied purely on the basis of lack of evidence (the benefit of the doubt principle)). 349 See VAJN & NJCM v. Neths., Ct. Appl., The Hague, ILDC 143 (NL 2002) (holding that mandatory detention policy at the Application Centre (such as at Schiphol Airport) during the accelerated 48-hour procedure for “manifestly unfounded” claims violated Art. 5 of the ECHR because it restricted freedom of movement by demanding that individuals who leave automatically withdraw their asylum application; also observing that the UNHCR had criticized the increasingly liberal interpretation of “manifestly unfounded”); Chiara Martini, Is the EU abandoning non-refoulement?, 25 FORCED MIGR. REV. 62 (May 2006) (reporting that under the “accelerated procedures” provision, a wide range of asylum claims – more than 80% according to Amnesty International – are arbitrarily judged to be “manifestly unfounded”). 350 Follow-up on Earlier Conclusions of the Sub-Committee on the Determination of Refugee Status, inter alia, with Reference to the Role of UNHCR in National Refugee Status Determination Procedure Date: 3 Sep 1982 International Protection (SCIP), U.N. Doc. EC/SCP/22/Rev.1 (expressing acceptance of measures for manifestly unfounded or abusive applications for refugee status but expressing concern that genuine applications not be overlooked). 348 347 60 which the person clearly does not qualify, the state need not consider that the person might be a de facto refugee in its treatment of the person. The manifestly unfounded policies appear to be regarded as unlawful where they operate to refuse claims based purely on evidentiary concerns, but not where they operate to efficiently dismiss claims that could never succeed on the law. In the latter, during the pendency of the manifestly unfounded claim, the state may not even need to consider the application as a presumptive refugee. G. DIPLOMATIC ASSURANCES The topic of diplomatic assurances remains controversial and the United Nations Special Rapporteur on Torture,351 as well as others,352 have argued that diplomatic assurances cannot relieve a state of its nonrefoulement obligation. Nonetheless, the UK Government has concluded Memoranda of Understanding with Jordan, Libya and Lebanon in order to provide blanket assurances.353 The Council of Europe Commissioner for Human Rights argued interestingly that “[t]he weakness inherent in the practice of diplomatic assurances lies in the fact that where there is a need for such assurances, there is clearly an acknowledged risk of torture or ill-treatment.” 354 This is echoed by the UN Independent Expert on the Protection of Human Rights and Fundamental Freedoms while Countering Terrorism: “the mere fact that such assurances are sought is arguably a tacit admission by the sending State that the transferred person is indeed at risk of being tortured or ill-treated”.355 The standard established by the Human Rights Committee is that assurances may be accepted provided the state “institute[s] credible mechanisms for ensuring compliance by the receiving State with these assurances from the moment of expulsion.”356 The Special Rapporteur on Torture reached a similar conclusion when he stated that assurances would be acceptable where “the receiving State has provided an unequivocal guarantee to the extraditing authorities that the persons concerned will not be subjected to torture or any other form of ill-treatment, and that a system to monitor the treatment of such persons has been put into place to ensure that they are treated with full respect for their human dignity.”357 The successor as Special Rapporteur, however, concluded that “In the situation that there’s a country where See Theo van Boven, U.N. Spec. Rapp. on Torture, Report to the General Assembly, U.N. Doc. A/60/316, para. 51 (2005) (“It is the view of the Special Rapporteur that diplomatic assurances are unreliable and ineffective in the protection against torture and ill-treatment.”); Comm. Ag. Torture, U.N. Doc. CAT/C/CR/33/3, para. 4 (Nov. 2004) (expressing concern at the UK’s reliance on diplomatic assurances to refoule); UNHCR, Exec. Comm., Concl. No. 30 (XXXIV) (“recognized the substantive character of a decision that an application for refugee status is manifestly unfounded or abusive, the grave consequences of an erroneous determination for the applicant and the resulting need for such a decision to be accompanied by appropriate procedural guarantees.”) 352 See UN Secretariat Memo, supra note 47 (citing UN Comm’n Hum. Rts., UN Indep. Expert, Protection of Human Rights and Fundamental Freedoms while countering Terrorism, UN. Doc. A/60/370, paras. 19-20 (Sept. 21, 2005); Council Eur. Comm’nr Hum. Rts., Report on Visit to the United Kingdom, 4 – 12 November 2004 §§ 12-13, Council Eur. Doc. CommDH/2005/6 (June 8, 2005); Hum. Rts. Watch, Still at Risk: Diplomatic Assurances No Safeguard Against Torture, 17(4(D)) HUM. RTS. WATCH 18-19 (Apr. 2005). 353 See Guy S. Goodwin-Gill & Raza Husain, Overview of the History and Current Scope of Non-Refoulement, and Current Attacks on the Principle, in THE REDRESS TRUST & THE IMMIGR. L. PRACTIONERS’ ASSOC., NONREFOULEMENT UNDER THREAT (2006). 354 See Alvaro Gil-Robles, Council Eur., Comm’r Hum. Rts., Report on His Visit to Sweden, April 21-23, 2004, Council Eur. Doc. CommDH (2004)13 (July 8, 2004). 355 See Robert K. Goldman, UN Comm’n Hum. Rts., UN Indep. Expert, Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, U.N. Doc. E/CN.4/2005/103, 19, para. 56 (Feb. 7, 2005). 356 See Hum. Rts. Comm., Concluding Observations on the Fifth Periodic Report of Sweden, U.N. Doc. CCPR/C/74/SWE, para. 12 (Apr. 24, 2002). 357 UN Special Rapporteur on Torture, Report, U.N. Doc. A/57/173, para. 35. 351 61 there’s a systematic practice of torture, no such assurances would be possible”.358 This is similar to the holding in Agiza v. Sweden, where the Committee against Torture found that the assurances were insufficient to permit expulsion because at the outset that it was known, or should have been known, to the State party’s authorities at the time of the complainant’s removal that Egypt resorted to consistent and widespread use of torture against detainees, and that the risk of such treatment was particularly high in the case of detainees held for political and security reasons. [The CAT also noted that the complainant was implicated in terrorist activities with national security implications.] In the Committee’s view, the natural conclusion from these combined elements, that is, that the complainant was at a real risk of torture in Egypt in the event of expulsion […] The procurement of diplomatic assurances, which, moreover, provided no mechanism for their enforcement, did not suffice to protect against this manifest risk.359 and in Suresh v. Canada: A distinction may be drawn between assurances given by a state that it will not apply the death penalty (through a legal process) and assurances by a state that it will not resort to torture (an illegal process). We would signal the difficulty in relying too heavily on assurances by a state that it will refrain from torture in the future when it has engaged in illegal torture or allowed others to do so on its territory in the past. … The former [death penalty] are easier to monitor and generally more reliable than the latter [torture].360 Therefore it appears that assurances may be acceptable but only where they are genuine. Courts have blocked expulsions in such cases where the assurances were not credible.361 Perhaps there is a See Manfred Nowak, UN Spec. Rapp. on Torture, What would it mean for terrorist suspects if the government did get its Prevention of Terrorism Bill through parliament?, BBC RADIO 4, TODAY PROGRAMME (4 Mar. 2005) available at www.bbc.co.uk/radio4/today/listenagain/zfriday_20050304.shtml. 359 See Agiza v. Swed., Comm. No. 233/2003, U.N. Doc. CAT/C/34/D/233/2003, para. 13.4 (Comm. Ag. Torture, May 24, 2005) (citation omitted). Also see Khouzam v Hogan, 497 F. Supp. 2d 615 (M.D. Pa., 2007), 529 F. Supp. 2d 543 (M.D. Pa., 2008) (sufficiently reliable diplomatic assurances can preclude consideration of CAT claim or terminate a CAT claim that was granted). 360 See Suresh v. Min. Citz. & Immigr. & A.G., [2002] S.C.R. 3, para 124-5 (Sup. Ct. Can.). Also note that Canada might be considered a specially interested state, see supra note 80. Also see • Canada: Min. Just. Can. v. Pacificador, No. C32995 (Ct. Appl. Ont., Can., Aug. 1, 2002). Also note that Canada might be considered a specially interested state, see supra note 80. • Netherlands: Neths. (Min. Just.) v. Kesbir, LJN, AS3366, 04/1595 KG (Ct. Appl. Neths., Jan. 20, 2005); Advies inzake N. Kesbir, EXU 2002/518, 02853/02/U-IT (Ct. Appl. Neths., 7 May 2004). Also note that the Netherlands might be a specially interested state, although it is less affected than some of the other states, see supra note 84. • UK: Youssef v. Home Ofc., Case No: HQ03X03052, [2004] E.W.H.C. 1884 (QB), (High Ct. Q’s Bench, July 30, 2004). Also note that the UK might be considered a specially interested state, see supra note 72. • US: In the Matter of al-Jailani, File #A 73 369 984 (Exec. Ofc. Immigr. Rev., Immigr. Ct., Penn., Dec. 17, 2004 ). Also note that the US might be considered a specially interested state, see supra note 74. 361 358 See e.g. • • • Canada: Mahjoub v. Can. (Min. Citz. & Immigr.), [2005] F.C.J. No. 173 (Jan. 31, 2005). Also note that Canada might be considered a specially interested state, see supra note 80. Netherlands: In re Kaplan, Neths. Also note that the Netherlands might be a specially interested state, although it is less affected than other states, see supra note 84. UK: Russ. Fed. v. Zakaev (Bow St. Magr. Ct., Nov. 13, 2003) (Workman, Hon.). Also note that the UK might be a specially interested state, see supra note 72. 62 presumption against their being genuine inherent in the fact that they are being requested, i.e. without credible concerns for the risk to the person being return, assurances would not be requested. In any event, a state proposing to expel a person cannot rely on assurances from a state with a record of violations. In addition, the state expelling a person to a state from which assurances where requested must institute an effective monitoring capacity.362 Another situation in which a state could not issue assurances sufficient to relieve the expelling state of its non-refoulement obligations is where the individuals responsible for the potential persecution, torture or other inhumane treatment are affiliated with non-state agents or rogue state agents that the state is unable or unwilling to control.363 This however falls within the usual test of whether there are substantial grounds for believing that there a real risk of the unacceptable treatment.364 As for the definition of refugee under customary international law, it appears that a state can defeat a claim of persecution (or other grounds of refugee qualification) by issuing assurances that such persecution (or other qualifying acts) will not occur. The quality of the assurances must then be assessed for their reliability, but might result in acceptance and refoulement of the individual to the state. Therefore, the definition of refugee has been modified from the existing flight from a qualifying situation to flight from a qualifying situation where the state does not or cannot offer genuine assurances of the situation not occurring. V. CONCLUSION This article has examined the various ways in which customary international law is changing the definition of refugee in international law. Perhaps naively, it has attempted to balance the competing demands of international law, the state-centered and human-centered interests, in order to reach what is hopefully a convincing conclusion about the state of contemporary customary international refugee law. 362 Even this option may not be permissible. Human Rights Watch has criticized the use of monitoring mechanisms in connection with assurances to permit expulsion because it has not found that when states violate the assurances that the expelling state has been found to have breached its non-refoulement obligations. Instead, the receiving state committing the acts was held responsible only for the acts and for violation of the assurances. See Hum. Rts. Watch, Still at Risk: Diplomatic Assurances No Safeguard Against Torture, 17(4(D)) HUM. RTS. WATCH REP. (Apr. 2005) available at http://www.hrw.org/reports/2005/eca0405/eca0405.pdf; Human Rights Watch, ‘Empty Promises’: Diplomatic Assurances No Safeguard Against Torture, 16(4(D)) HUM. RTS. WATCH REP. (Apr. 2004) available at http://hrw.org/reports/2004/un0404/. 363 See e.g. Chahal v. U.K., Appl. No. 22414/93, 23 E.H.R.R. 413 (1996) (Eur. Ct. Hum. Rts., 1996) at 49: [T]he United Nations Special Rapporteur on Torture has described the practice of torture upon those in police custody as ‘endemic’ and has complained that inadequate measures are taken to bring those responsible to justice … The NHRC (Indian National Human Rights Commission) has also drawn attention to the problems of widespread, often fatal, mistreatment of prisoners and has called for a systematic reform of the police throughout India … Although the Court does not doubt the good faith of the Indian Government in providing the assurances mentioned above, it would appear that, despite the efforts of that Government, the NHRC and the Indian courts to bring about reform, the violation of human rights by certain members of the security forces in Punjab and elsewhere in India is a recalcitrant and enduring problem … Against this background, the Court is not persuaded that the above assurances would provide Mr. Chahal with an adequate guarantee of safety. 364 See Hilal v. United Kingdom, 33 E.H.R.R. 2 (Eur. Ct. Hum. Rts., 2001). But see Svazas v. Sec’y St. Home Dep’t, [2002] 1 W.L.R. 1891 (holding in a Refugee Convention case that the test is whether there exists a sufficiency of protection in respect of the acts of rogue state agents measured in a general or systemic manner, and may co-exist with a real risk of prohibited ill treatment); R. (Bagdanavicius) v. Sec’y St. Home Dep’t, [2005] U.K.H.L. 38 (H. Lords) (Brown, L.) (applying the same test in Svazas to ECHR, art. 3). 63 First, this article examined the Refugee Convention itself and its current interpretation. The initial and overriding conclusion to be drawn from the interpretation of the Convention is that it appears to normally emphasize the teleological interpretive technique, possibly in line with the intention of the drafters. This interpretive technique was applied in cases of the inclusion/exclusion and cessation provisions of the Convention, and in some cases has been used to verge on amending the explicit terms of the treaty. Second, this article examined customary international law as applied in cases of refugees or individuals in refugee-like situations. Many scholars have concluded that there is no definition of refugee under customary international law. This article refutes this conclusion by drawing on the extensive practice of states. As a preliminary matter, this article identified the specially interested or specially affected states in matters of refugee law. This aspect of the formation of customary international law appears to be largely omitted in most analyses of customary international law on point. It was submitted that specially interested states in this case are those states that experience inward refugee flows, as measured by statistical studies of such flows by the UNHCR. With specially interested states identified, the analysis of the formation of customary international law on the definition of refugee can be appreciated in an entirely new light, especially the influence of certain regional instruments. This finding suggests that the definition of refugee may include under customary international law, persecution on the basis of gender or sexual orientation; and individuals fleeing from external aggression, occupation or other serious disturbances of public order, possibly including massive violations of human rights and/or torture, or even the imposition of the death penalty. Continuing with the analysis of customary international law, this article considered the influence of the widespread practice of “subsidiary protection”, both under international law and municipal law. In many instances, however, this examination suggested that the subsidiary protection was enacted partly with the purpose of insulating the definition of refugee from further development under customary international law. Nevertheless, although the formal categories were in most cases retained, the consideration and actual treatment of individuals shows, at the minimum, that there may be a growing customary international legal obligation to provide for subsidiary protection and, at most, that subsidiary protection is now defining the new outer parameters of the definition of the refugee. This article has also considered, albeit cautiously, the contribution of the practice of international organizations to the definition of refugee. It still does not appear that contemporary international law has specifically accepted the practice of international organizations as contributing to the formation of customary international law, that is, as opposed to the practice of states within and through international organizations, where there is much more acceptance. The practice of international organizations suggests, again, a growing norm of subsidiary protection, if we take a conservative approach to the appreciation of the formation of customary international law. Taking a more aggressive approach, we might even conclude that there is something more significant going on. However, the overall practice appears a little too inconsistent for us to confidently find a new norm. Lastly, this article has had to look at the other side of the formation of customary international law: not the expansion of the definition, but the contraction. There are many instances of state practice attempting to narrow the definition, although the great majority of them are inconsistent, singular or clearly perceived to be violations of refugee law rather than evolving customary law. One of the more significant developments in the narrowing of the definition is the growth of the concept of internal flight or relocation alternatives to regions within the state that are safe. From a comparative study of the practice of states on relocation alternatives, the law appears to permit, at a minimum, that individuals may be returned to a different portion of a state where there is genuine access to meaningful protection, not illusory or unpredictable protection (the House of Lords “first approach”, discussed in Januzi v. Sec’y 64 St.).365 However, some states are adopting the more restrictive “second approach” (that conditions in the proposed region of the state not be so different from the conditions of non-persecuted persons in the original region), and that approach may eventually crystallize into customary international law, though it does not appear to have done so yet. Safe third country and country of origin designation policies are also becoming increasingly popular; however, these policies do not appear to have moved to customary international law. Firstly, they directly violate the Refugee Convention and therefore any customary international legal analysis will need to see evidence of clear intent to reverse a well-established treaty norm. Secondly, those blanket rules have failed in some jurisdictions for precisely that reason of their failure to consider cases on their merits, so we can conclude that the states themselves have determined that their proposed policies were in violation of the norms on refugees, preventing the contrary norm from emerging in customary international law. A number of other potential narrowing measures were each in turn found to have not crystallized into customary international law, including practices of automatic refusals of manifestly unfounded applications. The final practice that was considered was the reliance on diplomatic assurances that the acts against the person would not occur. This practice is not provided in the Refugee Convention as an exception to non-refoulement, but it appears to have crystallized in customary international la. That being said, the practice comes with the express condition that the assurances provide a credible basis for ensuring that the acts would not occur. Where states have a systematic practice of engaging in the prescribed acts, assurances cannot be used as an exception to non-refoulement. Therefore, the evolving definition of a refugee under conventional and customary international law is: A person who, owing to a well-founded fear of being subjected to a situation of (1) persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion; (2) torture, inhuman or degrading treatment and/or punishment; and/or (3) a threat to life, security or liberty due to events seriously disturbing public order; that (a) is so widespread that it exists in all parts of the state of origin where the person could flee and also exists in every state the person reached upon leaving his state of origin; and (b) is unable to be cured by credible, reliable and genuine assurances offered by the state of origin, and any other state that the individual previously reached, of the situation not occurring to that individual; is outside the country of his or her nationality of former habitual residence and is unable or, owing to such fear, unwilling to avail himself of the protection of that country or return to it. Based on the above, there is customary international law in the field of refugee law. Finding that such law exists does not, however, necessarily mean that refuge is only available to an expanded group of persons. International law is not always so kind. Instead, it means that protection is available for more persons, but also that that protection is also limited by additional rules. In the field of refugee law, we have the usual balance between state freedom of action and state limitation on action, with states demanding increasingly liberal moral standards from themselves, but showing increasing reluctance to live by those standards on the ground. Somewhere between these two extremes fall people in need of protection. 365 See Januzi et al. v. Sec’y St. Home Dep’t, [2006] U.K.H.L. 5 (H. Lords, Feb. 15, 2006). 65