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Temporary Protection, Continuing Insecurity: A Regime Replacing Convention Protection of Refugees in Violation of International Law

Published online by Cambridge University Press:  18 July 2014

François Crépeau  and
Leanne Holland
François Crépeau
Affiliation:
Département des sciences juridiques, Université du Québecà Montréal
Leanne Holland
Affiliation:
Quebec Court of Appeal
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Abstract

The system of temporary protection set out in accordance with the conclusions of the Executive Committee of the United Nations High Commissioner for Refugees (Excom) offers the necessary guarantees for the protection of the refugee under such a system. However, regimes of temporary protection recently established in a number of states (for example Germany and the United States) do not respect the conclusions of Excom nor the Convention Relating to the Status of Refugees of 1951 and are based on the objective of controlling migratory flows.

Résumé

Le système de protection temporaire établi à la suite des conclusions du Comité exécutif du Haut Commissariat des Nations Unies pour le réfugiés (Excom) présente toutes les garanties de protection des droits des réfugiés ainsi protégés. Les systèmes de protection temporaire récemment mis en oeuvre dans divers pays (par exemple l'Allemagne et les États-Unis) ne respectent pourtant ni les conclusions d'Excom ni les garanties de la Convention de Genève de 1951 relative au statut des réfugiés, et sont manifestement animés par des objectifs de contrôle des flux migratoires.

Type
Research Article
Information
Canadian Journal of Law and Society / La Revue Canadienne Droit et Société , Volume 12 , Issue 1 , Spring/printemps 1997 , pp. 239 - 261
Copyright
Copyright © Canadian Law and Society Association 1997

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References

1. 28 July 1951, 189 U.N.T.S. 137 [hereinafter Convention of 1951]. Article 1C establishes that, when the circumstances which formed the basis for the individual's refugee status have ceased to exist, the refugee can no longer refuse to seek the protection of his State, except for compelling reasons.

2. 31 January 1967, 606 U.N.T.S. 267 [hereinafter 1967 Refugee Protocol].

3. See Hathaway, James, The Law of Refugee Status (Toronto: Butterworths, 1991) at 6–10Google Scholar. The author explains that the drafters of the Convention of 1951, supra note 1, also wished to limit the responsibility of States for refugees with the temporal and geographic limitations and that the Convention was designed to deal with post-war refugees only.

4. Castillo, Manuel Angel & Hathaway, James, “Temporary Protection” (1996) 15 Refuge 10 at 10Google Scholar.

5. See Universal Declaration of Human Rights, 1948 U.N.G.A. Res. 217/3, art. 14; International Convention on Civil and Political Rights, U.N.G.A. Res. 2200/21, art. 12; American Convention on Human Rights 1979 1144 U.N.T.S. 123, O.A.S.T.S. 36, art. 22, para. 7; European Convention for the Protection of Human Rights and Fundamental Freedoms (1955) 213 U.N.T.S. 221, E.T.S. 5, Protocol 4, art. 2, Protocol 7, art. 1.

6. Include, for the purposes of this article, the Northwestern industrialized countries and Australia.

7. Coined by Professor James Hathaway.

8. Coles, Gervaise, “State Responsibility in Relation to the Refugee Problem with Particular Reference to the State of Origin: A Study” 1993 at 56Google Scholar [unpublished].

9. See generally, Smith, Alice Jackson, “Temporary Safe Haven for De Facto Refugees from War, Violence and Disasters” (1988) 28 Virginia Journal of International Law 509Google Scholar.

10. The term “asylee” is used in preference to asylum-seeker or refugee and designates the person protected by continuous presence in the host State or a location designated by the host State, in the case of Guantànamo Bay.

11. UNHCR, Executive Committee, Note on International Protection, A/AC.96/830, (7 September 1994) at 19, para. 45.

12. See Dinh, Nguyen Quoc, Daillier, Patrick & Pellet, Alain, Droit International Public, 4th ed. (Paris: L.G.D.J., 1995) at 734–35Google Scholar.

13. UNHCR, Executive Committee, Conclusions on the International Protection of Refugees Adopted by the Executive Committee of the UNHCR Programme (Geneva: 1980) Conclusion 19/31 (Temporary Refuge) at 39–40 [hereinafter Conclusion 19]Google Scholar.

14. UNHCR, Executive Committee, Conclusions on the International Protection of Refugees Adopted by the Executive Committee of the UNHCR Programme (Geneva: 1980) Conclusion 22 (Protection of Asylum Seekers in the Situations of Large-Scalr Influx) [hereinafter Conclusion 22]Google Scholar.

15. Supra note 13.

16. Ibid. at 40.

17. Supra note 14 at 48-52.

18. In the early 1980s, in the case of Thailand, for example, this was meant to ensure that the State would not close its borders to the arrival of asylees. The durable solution at that time was resettlement.

19. Gill, Guy Goodwin, The Refugee in International Law (Oxford: Oxford University Press, 1983) at 97–100Google Scholar; Kjaerum, Morten, “Temporary Protection in Europe in the 1990s” (1994) 6 International Journal of Refugee Law 444 at 445CrossRefGoogle Scholar.

20. Since this conclusion, reached by consensus, sets out the basic rules of conduct, it would be unlikely that a state such as the United States or Germany would publicly renounce its application.

21. This thesis is reinforced by the example of Hong Kong which was fully capable of dealing with asylees at least in the middle and long-term. Despite this fact, the last asylees left the camps in 1996, having been under a temporary protection regime for almost 20 years, in violation of the Convention of 1951.

22. States have often wrongly characterized the numbers involved as mass influx, thus justifying the use of the lesser standard of temporary protection.

23. Secretariat of the Intergovernmental Consultations on Asylum, Refugee and Migration Policies in Europe, North America and Australia, Working Paper on Reception in the Region of Origin, September 1994 at 10-15.

24. See e.g. Grant, Brian, “Globalism and Regionalism: The Challenge of Population Movements” in Canadian Council of International Law, Globalism and Regionalism: Options for the 21st Century (Ottawa: Canadian Council on International Law, 1995) at 161Google Scholar–67. Brian Grant is a senior policy advisor with Immigration Canada. During his communication, Canada was compared to a barge which was full and threatening to sink. Refugees were those persons in the water, clinging to the barge and the captain of the barge was forced to take out his axe and chop off the hands of those in the water in order to save those aboard.

25. See generally Crépeau, François, Droit d'asile: De l'Hospitalité aux contrÔles migratoires (Bruxelles: Bruylant, 1995)Google Scholar.

26. Such as the regional protection offered by the European Human Rights Convention and Court or the constitutional protection offered by the Canadian Charter of Rights and Freedoms as applied by the courts.

27. See Barutciski, Michael, The Reinforcement of Non-Entrée and the Subversion of the UNHCR, Displacement and Internal Assistance in Bosnia-Herzegovina (1992-1994) (LL.M. Thesis, York University, 1995)Google Scholar.

28. Ibid.

29. In 1985, there were 73 832 requests, in 1986, 99 650; in 1987, 57 379; in 1988, 103 076; in 1989, 121 318; in 1990, 193 063; in 1991, 256 112; in 1992, 438 191; in 1993, 322 599. See Eurostat, Statistiques en bref, By 1993, this number had fallen to 3.2%. UNHCR, Les Réfugiés dans le monde, en quête de solutions (Paris: Découverte, 1995)Google Scholar [hereinafter Les Réfugiés dans le monde].

30. In 1994, the asylum applications plunged to 127 210. See Statistiques en bref, ibid. at 3.

31. All states which are members of the European Community or who have ratified either the European Human Rights Convention or the Convention of 1951 are considered to be safe third countries.

32. “L'Asile en Allemagne” in Les Réfugiés dans le monde, supra note 29 at 202.

33. See especially Ward v. Attorney General of Canada, [1993] 2 S.C.R. 689.

34. While Germany accepted 350 000 Yugoslavians under its system of temporary protection, Austria, Belgium, Denmark, France, Hungary, Italy, Norway, Switzerland and the United Kingdom participated very little in sharing the burden as most of these states admitted considerably less than 50 000 asylees each, “Protéger les droits de l'Homme” in Les Réfugiés dans le monde, supra note 29 at 86.

35. Humanitarian Issues Working Group of the International Conference on the Former Yugoslavia, UNHCR, “Survey on the Implementation of Temporary Protection”, 23 June 1994 at 34Google Scholar.

36. Ibid. at 36.

37. This despite the recent decision of the European Human Rights Court, in the case of Gül v. Switzerland, going against the report of the Commission that found (at 7-2) that a Turkish couple residing in Switzerland do not have the right to reunification with their son (aged 7 at the time of the first request) in Turkey and this despite the fact that both parents suffer health problems and that, because of these problems, their daughter was placed in foster care. Switzerland had refused their request for family reunification based on the temporary nature of their permission of residence (Aufenthaltsbewillingung). The dissenting judges found that it was unreasonable and inhuman to force the couple to choose between their residence in Switzerland and their child or indeed between their children–one in Switzerland and one in Turkey. “Regroupement familial: Un Couple turc résidant en Suisse devra rentrer en Turquie s'il veut vivre avec son fils” in Cruz, A. & Perotti, A., eds., Migrations Europe (March 1996) at 1Google Scholar.

38. Those “who make their asylum-claims in Haiti, may have to wait months for an interview, have to live in hiding and may face rejection of their claim in spite of repeated persecution, threats, arrests, ill-treatment or torture.” Amnesty International, “The Price of Rejection: Human Rights Consequences for Rejected Haitian Asylum-Seekers” AMR 51/31/94 at 1Google Scholar.

39. Frelick, Bill, “Safe Haven: Safe for Whom?” in World Refugee Survey 1995 (Washington: Immigration and Refugee Services of America, 1995) 18 at 26Google Scholar [hereinafter World Refugee Survey 1995].

40. Ibid. at 19.

41. In order to induce voluntary repatriation, the American government offered small cash incentives and job training.“[T]he American Government told the Haitians that they had until January 5 [1995] to repatriate ‘voluntarily’ or the government would return them forcibly […]”Ibid. at 18.

42. According to the Appeal Court decision in the case of Haitian Refugee Center v. Christopher, 43 F.3d 1431 (11th Cir. 1995) [hereinafter Haitian Refugee Center].

43. The number of Cubans interdicted by the American Coast Guard was 476 in 1990, 2 203 in 1991, 2 557 in 1992 and 3 656 in 1993. See “Country Reports, Latin America and the Caribbean” in World Refugee Survey 1995, supra note 39, 174 at 177.

44. The number of Haitians interdicted by the American Coast Guard was 1 131 in 1990, 9 941 in 1991, 31 401 in 1992, 2 329 in 1993. Ibid. at 180.

45. See Amnesty International, supra note 38.

46. Jones, Thomas David, “A Human Rights Tragedy: The Cuban and Haitian Refugee Crisis Revisited” (1995) 9 Georgetown Immigration Law Journal 479Google Scholar.

47. 113 S. Ct. 3028 (1993).

48. UNHCR, “The Haitian Interdiction Case 1993 Brief amicus curiae” (1994) 6 International Journal of Refugee Law 85CrossRefGoogle Scholar.

49. Conclusion 22, supra note 14 at 50.

50. As described in Frelick, supra note 39 at 19–20.

51. Under article 3 of the European Human Rights Convention. See especially Soering v. United Kingdom 7 July 1989, Series A, No 161, Cruz-Varas v. Sweden 30 March 1991, Series A, No 201, Vilvarajah and others v. United Kingdom 30 October 1991, Series A, No 215. Under article 5 of the American Convention on Human Rights, see Velasques-Rogriguez v. Honduras 29 July 1988, Series C, No 5.

52. See Cuban American Bar Association v. Christopher, 43 F.3d 1412 (11th Cir. 1995), appeal refused 116 S.Ct. 299

53. Ibid. at para. 16.

54. If this line of reasoning were accepted, its consequence would be that a state, by way of a unilateral coercive action, could avoid its international obligations. We reject this strict interpretation as simplistic and without foundation. See the dissenting judgment of Blackmun J. in Sale v. Haitian Centers, 113 S. Ct. 3028 (1993).

55. Perez-Perez v. Hanberry, 781 F.2d. 1477, 1479 (11th Cir. 1986).

56. Frelick, Bill, “Haitian Boat Interdiction and Return: First Asylum and First Principles of Refugee Protection” (1993) 26 Cornell International Law Journal 675 at 692Google Scholar.

57. Frelick, supra note 39; Jones, supra note 46.

58. According to Amnesty International, many asylees were arrested on the dock following their forcible return by the American Coast Guard and were detained for weeks. In some cases, forcible return led to torture and death. In the case of Oman Desanges, his body was found just outside Port-au-Prince “with his eyes gouged out, his ear cut off, his stomach split, his hands tied and a cord around his neck. There was also a red handkerchief around his arm” which indicated the political motive for the slaying. See Amnesty Inernational, supra note 38 at 3-5.

59. As an example, if an asylee enjoys a tolerated status (with a lesser protection than the Convention of 1951) for a period of four years but the state in question is able, after one year, to cope with the mass influx but nonetheless does not implement a refugee status determination process, the state is in violation of the Convention for the three years during which the state did not recognize his rights.

60. Examples of this type of agreement include the Dublin Convention, Schengen Convention, the Draft Canada-United States Memorandum of Understanding. There are also talks taking place with regard to cooperation between North and Central America (Puebla, Mexico, March 1996).

61. Cuban American Bar Association, supra note 52 at 1427.

62. See supra note 1 at section 2.1.2.

63. The restrictive interpretation of “persecution,” widely applied in European countries, should not be adopted by UNHCR. The UNHCR should promote a wider interpretation which respects the principles of interpretation of a convention designed to protect human rights. As such, the Convention of 1951 should receive an open and generous interpretation which takes into account its object. See especially Ward v. Attorney General of Canada, supra note 33.

64. However, this may not prove to be an ideal time to re-open the discussion as to the content of the protection of the Convention. See generally Wachs, Jonathan, “The Need to Define the International Legal Status of Cubans Detained at Guantànamo” (1996) 11 American University Journal of International Law and Policy 79Google Scholar.