Temporary Protection: Hovering at the Edges of Refugee Law

Abstract

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