THE R IGHTS OF R EFUGEES

UNDER
INTERNATIONAL LAW

Second Edition

JAMES C. HATHAWAY
University of Michigan Law School
 THE RIGHTS OF REFUGEES UNDER
INTERNATIONAL LAW

Second Edition

Do states have a duty to assimilate refugees to their own citizens? Are refugees
entitled to freedom of movement, to be allowed to work, to have access to public
welfare programs, or to be reunited with family members? Indeed, is there even a
duty to admit refugees at all? This fundamentally rewritten second edition of the
award-winning treatise presents the only comprehensive analysis of the human
rights of refugees set by the UN Refugee Convention and international human
rights law. It follows the refugee’s journey from flight to solution, examining
every rights issue both historically and by reference to the decisions of senior
courts from around the world. Nor is this a purely doctrinal book: Hathaway’s
incisive legal analysis is tested and applied to hundreds of protection challenges
around the world, ensuring the relevance of this book’s analysis to responding to
the hard facts of refugee life on the ground.

James C. Hathaway is James E. and Sarah A. Degan Professor of Law and

founding director of the Program in Refugee and Asylum Law, University of
Michigan. He is the author of The Law of Refugee Status (1991; 2nd ed. 2014, with
M. Foster) and editor of Reconceiving International Refugee Law (1997) and
Human Rights and Refugee Law (2015). He is also the founding editor of
Cambridge Asylum and Migration Studies.
 University Printing House, Cambridge CB2 8BS, United Kingdom
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www.cambridge.org
Information on this title: www.cambridge.org/9781108495899
DOI: 10.1017/9781108863537
© James C. Hathaway 2005, 2021
This publication is in copyright. Subject to statutory exception
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Second Edition 2021
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In memory of Luis Peral Fernández (1967–2019)
 CONTENTS

Table of Concordance to the Refugee Convention

and Protocol page xiv
Acknowledgments xix
Table of Cases xxii
Table of Treaties and Other International Instruments l
Abbreviations for Courts and Tribunals Cited lxvii

Introduction 1

1 The Evolution of the Refugee Rights Regime 10

1.1 International Aliens Law 10
1.2 International Protection of Minorities 17
1.3 League of Nations Codifications of Refugee Rights 19
1.4 The Convention relating to the Status of Refugees 26
1.4.1 Substantive Rights 29
1.4.2 Reservations 31
1.4.3 Temporal and Geographical Restrictions 35
1.4.4 Duties of Refugees 37
1.4.5 Non-impairment of Other Rights 50
1.5 Post-Convention Sources of Refugee Rights 53
1.5.1 Protocol relating to the Status of Refugees 54
1.5.2 Conclusions and Guidelines on International Protection 56

vii
viii c o n te n t s

1.5.3 Regional Refugee Rights Regimes 67

1.5.3.1 African Union 68
1.5.3.2 European Union 72
1.5.3.3 Organization of American States 77
1.5.3.4 League of Arab States 81
1.5.3.5 Association of Southeast Asian Nations 82

1.5.4 International Human Rights Law 84

1.5.5 Duty not to Discriminate against Non-citizens,
including Refugees 102
1.5.5.1 Categorical Approval of Differentiation based on
Citizenship 108
1.5.5.2 Unwarranted Deference to State Assertions of
Reasonableness 112
1.5.5.3 Failure to Ensure Substantive Equality 119

2 An Interactive Approach to Interpreting Refugee Rights 128

2.1 The Perils of “Ordinary Meaning” 134
2.2 Context 139
2.3 Object and Purpose, Conceived as Effectiveness 148
2.4 But What About State Practice? 161

3 The Structure of Entitlement under the Refugee Convention 173

3.1 Attachment to the Asylum State 176
3.1.1 Subject to a State’s Jurisdiction 181
3.1.2 Physical Presence 193
3.1.3 Lawful or Habitual Presence 196
3.1.4 Lawful Stay 212
3.1.5 Durable Residence 216
3.2 The General Standard of Treatment 219
3.2.1 Assimilation to Aliens 224
3.2.2 Exemption from Reciprocity 225
 c o n te n t s ix

3.2.3 Exemption from Insurmountable Requirements 232

3.2.4 Rights Governed by Personal Status 237
3.3 Exceptional Standards of Treatment 255
3.3.1 Most-Favored-National Treatment 257
3.3.2 National Treatment 261
3.3.3 Absolute Rights 264
3.4 Prohibition of Discrimination between and among Refugees 265
3.5 Restrictions on Refugee Rights 291
3.5.1 Suspension of Rights for Reasons of National Security 292
3.5.2 Exemption from Exceptional Measures 303

4 Rights of Refugees Physically Present 312

4.1 Right to Enter and Remain in an Asylum State
(Non-refoulement) 313
4.1.1 Beneficiaries of Protection 340
4.1.2 Nature of the Duty of Non-refoulement 355
4.1.2.1 Non-admittance 357
4.1.2.2 Ejection 359
4.1.2.3 “Voluntary Repatriation” 360
4.1.2.4 Failure to Identify Refugees 362
4.1.2.5 International Zones and Excision 365
4.1.2.6 “Protection Elsewhere” (“First Country of Arrival”
and “Safe Third Country”) Regimes 366
4.1.2.7 “Safe Country of Origin” Rules 375

4.1.3 Extraterritorial Refoulement 379

4.1.3.1 Unilateral Extraterritorial Deterrence 379
4.1.3.2 Cooperative Extraterritorial Deterrence 390

4.1.4 Individuated Exceptions 399

4.1.4.1 Danger to National Security 406
4.1.4.2 Danger to the Asylum State Community 413
4.1.4.3 No Balancing Requirement 418
x contents

4.1.5 Qualified Duty in the Case of Mass Influx? 423

4.1.6 An Expanded Concept of Non-refoulement? 435
4.1.6.1 Opinio Juris? 441
4.1.6.2 Consistent State Practice? 450
4.1.6.3 Other Duties of Non-refoulement 459

4.2 Freedom from Arbitrary Detention and Penalization for

Illegal Entry 464
4.2.1 Beneficiaries of Protection 488
4.2.1.1 Presentation to Authorities within a Reasonable
Period of Time 492
4.2.1.2 Breach Necessitated by Urgency of Search for
Protection 495
4.2.1.3 Persons or Organizations Assisting Refugees 507

4.2.2 Non-penalization 511

4.2.3 Expulsion 519
4.2.4 Provisional Detention and Other Restrictions on
Freedom of Movement 521
4.2.4.1 Freedom from Arbitrary Detention 523
4.2.4.2 Other Restrictions on Movement 537
4.2.4.3 Mandatory Termination of Refugee Detention and
Other Restrictions on Movement 540
4.2.4.4 Conditions of Detention 547

4.3 Physical Security 550

4.3.1 Right to Life 566
4.3.2 Freedom from Torture, Cruel, Inhuman, or
Degrading Treatment 571
4.3.3 Security of Person 578
4.4 Necessities of Life 581
4.4.1 Freedom from Deprivation 584
4.4.2 Access to Food and Shelter 594
4.4.2.1 Food 621
4.4.2.2 Water 624
4.4.2.3 Clothing 625
 c o n te n t s xi

4.4.2.4 Housing 627

4.4.3 Access to Healthcare 630

4.5 Property Rights 641
4.5.1 Movable and Immovable Property Rights 645
4.5.2 Tax Equity 656
4.6 Family Rights 664
4.6.1 Family Unity 683
4.6.2 Family Reunification 687
4.7 Freedom of Thought, Conscience, and Religion 697
4.8 Education 730
4.8.1 Elementary Education 745
4.8.2 Secondary and Other Education 757
4.9 Documentation of Identity and Status 765
4.10 Judicial and Administrative Assistance 779
4.10.1 Documentation 792
4.10.2 Access to Courts 797

5 Rights of Refugees Lawfully or Habitually Present 809

5.1 Protection from Expulsion 811
5.1.1 Constraints before Lawful Presence 818
5.1.2 Constraints after Lawful Presence 830
5.1.3 Procedural Constraints on Expulsion 833
5.1.4 Substantive Constraints on Expulsion 841
5.1.5 Right to Non-coercive Departure 856
5.2 Freedom of Residence and Internal Movement 860
5.3 Self-Employment 886
5.4 Intellectual Property Rights 901
5.5 Assistance to Access the Courts 915
xii c o n te n t s

6 Rights of Refugees Lawfully Staying 925

6.1 Right to Work 925
6.1.1 Wage-Earning Employment 931
6.1.2 Fair Working Conditions 966
6.1.3 Social Security 978
6.2 Professional Practice 993
6.3 Public Relief and Assistance 1011
6.4 Housing 1028
6.5 Freedom of Expression and Association 1048
6.6 International Travel 1085

7 Rights of Solution 1128

7.1 Repatriation 1134
7.1.1 Fundamental Change of Circumstances 1143
7.1.2 Restoration of Protection 1147
7.1.3 The Risky Notion of “Voluntary Repatriation” 1150
7.1.4 General Declarations of Cessation 1156
7.1.5 Lawful Mandated Repatriation 1161
7.1.6 Compelling Reasons Exception 1171
7.2 Voluntary Reestablishment 1177
7.3 Resettlement 1189
7.4 Naturalization 1206

Appendices
1 Convention relating to the Status of Refugees (1951) 1222
2 Protocol relating to the Status of Refugees (1967) 1238
3 Universal Declaration of Human Rights (1948) 1242
 contents xiii

4 International Covenant on Civil and Political

Rights (1966) 1249
5 International Covenant on Economic, Social
and Cultural Rights (1966) 1269
Select Bibliography 1280
Index 1303
 TABLE OF CONCORDANCE TO THE REFUGEE
CONVENTION AND PROTOCOL

CONVENTION (1951)

Art. 1 35–37 ; 48 n. 146, 54 n. 182, 343, 345, 347, 403, 500, 502,
Definition 1102, 1104 n. 1059, 1123
1(A) 502
1(A)(1) 51 n. 163, 1171
1(A)(2) 13 n. 10, 312 n. 1, 343 n. 157, 344, 347 n. 177, 924 n. 664, 1135
n. 39, 1148 n. 96, 1178 n. 231
1(B)(1)(a) 36 n. 90, 291 n. 632
1(B)(2) 36 n. 90
1(C) 31 n. 65, 210
1(C)(1) 1085, 1188 n. 288
1(C)(3) 1207 n. 387, 1209
1(C)(4) 69 n. 261, 1131, 1135, 1136 n. 43, 1178, 1188 n. 288
1(C)(5) 51 n. 164, 427 n. 615, 1128 n. 8, 1131, 1136–1160, 1171
n. 197, 1172 n. 201, 1173 n. 207, 1174, 1177
1(C)(6) 427 n. 615, 1128 n. 8, 1131, 1136–1160, 1171 n. 197, 1172
n. 201, 1173 n. 207, 1174, 1177
1(D) 64, 506 n. 1052, 1128 n. 6
1(E) 506 n. 1052
1(F) 292 n. 635, 294, 343 n. 159, 400–406, 430 n. 633
1(F)(b) 400, 401 nn. 478 and 481, 403–406, 413, 421–423
1(F)(c) 62 n. 234

Art. 2 38–50; 39 n. 106, 264 n. 485, 722, 866 n. 310

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

Art. 4 711–717; 42, 193 n. 103, 261 n. 451, 297 n. 659, 820, 826
Religion
Art. 5 50–53; 181 n. 40, 221 nn. 243 and 246, 289, 1116 n. 1122
Non-Convention
rights
xiv

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 table o f conc orda n ce xv

Art. 6 232–236; 126 n. 528, 181 n. 40, 651 n. 1973, 762 n. 2592
Insurmountable
requirements
Art. 7 225–232; 52 n. 173, 221 n. 243, 896, 898
Exemption
from reciprocity
7(1) 181 n. 40, 219–223, 230, 255, 566, 655–656, 797, 894 n. 478,
920 n. 630, 1069 n. 865, 1204
7(2) 212 n. 193, 216 n. 217, 221 n. 245, 229, 230, 660 n. 2031
7(3) 221 n. 245, 229 n. 273, 230 n. 280
7(4) 230
7(5) 221 n. 245
Art. 8 303–311; 29 n. 58, 181 n. 40, 297 n. 659, 426 n. 613
Exceptional
measures
Art. 9 292–303; 89 n. 397, 194 n. 108, 304, 310, 426, 842, 877
Provisional
measures
Art. 10 217–218; 229 n. 277
Continuity
of residence
10(1) 217 n. 223
10(2) 218 n. 226
Art. 11 1098 nn. 1029 and 1030; 1105 n. 1059, 1197 n. 337, 1218
Refugee seamen n. 452
Art. 12 237–255; 181 n. 40, 792 n. 2763, 820, 826
Personal status
12(1) 237 n. 321, 239
12(2) 240 n. 336
Art. 13 645–656; 181 n. 40, 182 n. 44, 221 n. 245, 225 n. 256, 232
Property n. 291, 820, 826, 893, 973, 1042
Art. 14 902–915; 210 n. 181, 260 n. 449, 790 n. 2752, 810 n. 4, 919
Artistic/industrial n. 623
property
Art. 15 1057–1069; 212 n. 193, 232 n. 293, 257 n. 422, 260 n. 437,
Association 278, 972, 1210 n. 401
Art. 16 918–924; 807, 826, 828 n. 106
Access to courts
16(1) 180 n. 34, 181 n. 40, 182 n. 48, 784–792, 797–808, 820, 915,
919 n. 622, 920

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

16(2) 210 n. 182, 260 n. 449, 790 n. 2752, 810 n. 4, 920–924

16(3) 920, 921
Art. 17 931–966 ; 33, 101 n. 446, 212 n. 193, 232 n. 293, 276, 828
Employment n. 107, 876 n. 363, 968 n. 251, 1003, 1008, 1009, 1010
17(1) 33, 131 n. 25, 257 n. 422, 260 n. 437, 943 n. 101, 956–959, 964
17(2) 212 n. 193, 217 n. 218, 943 nn. 101 and 107, 958–959, 962,
963 n. 233, 964
17(2)(a) 216 n. 217, 217 n. 218, 958 nn. 199 and 203, 959
17(2)(b) 960–961
17(2)(c) 959 n. 209, 961–963
17(3) 965–966, 1098 n. 1030
Art. 18 892–901; 101 n. 446, 197 n. 122, 221 n. 245, 225 n. 256, 232
Self-employment n. 291, 278 n. 550, 876 n. 363, 1004, 1008, 1009, 1010
Art. 19 996–1011; 101 n. 446, 212 n. 193, 221 n. 245, 225 n. 256, 232
Liberal professions n. 291, 278 n. 550, 759, 876 n. 363
19(2) 868 n. 321, 1005–1007
Art. 20 586–594; 181 n. 40, 183 n. 52, 260 n. 449, 276 n. 541, 820, 826
Rationing
Art. 21 1037–1048; 212 n. 193, 221 n. 245, 225 n. 256, 232 n. 291,
Housing 278 n. 550, 652 n. 1978, 973
Art. 22 742–765 ; 75 n. 298, 181 n. 40, 183 n. 50, 221 n. 245, 225
Public education n. 256, 232 n. 291, 276 n. 541, 820, 826
22(1) 260 n. 449, 745–757
22(2) 743 n. 2490, 757–765
Art. 23 1018–1028, 1040–1041; 212 n. 193, 260 n. 449, 828 n. 107,
Public relief 983 n. 319
Art. 24 966–993; 212 n. 193
Labor law/social
security
24(1) 260 n. 449
24(1)(a) 968 n. 251, 970–978, 1039
24(1)(b) 981, 982 n. 314, 983, 985–989, 1022 n. 562
24(2) 984
24(3) 985, 986, 989–992
24(4) 985, 986, 992–993, 1098 n. 1030
Art. 25 784–792; 30 n. 59, 264 n. 486, 661 n. 2041, 689 n. 2194, 795,
Administrative 807, 820, 826, 957 n. 191, 1114, 1210
assistance
25(1) 787–790, 793 n. 2765
25(2) 787, 792–797
25(3) 795 n. 2778, 796
25(4) 661 n. 2041
25(5) 793 n. 2764

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

Art. 26 867–886; 71 n. 273, 197 n. 122, 224 n. 255, 232 n. 292, 278
Movement n. 550, 540 n. 1255, 546, 858
Art. 27 769–779; 193 n. 103, 264 n. 486, 661 n. 2041, 793, 820, 826,
Identity papers 1101, 1102
Art. 28 1091–1127; 31 n. 66, 48 n. 151, 71 n. 274, 212 n. 193, 264
Travel documents n. 486, 291 n. 633, 771, 772, 773, 793
28(1) 772, 1086, 1096, 1099, 1106, 1110, 1113 n. 1107, 1114 n. 1113
28(2) 773, 1105 n. 1060
Schedule 1089 n. 999, 1103 n. 1056
Schedule [1] 1108 n. 1074
Schedule [2] 1105 n. 1061, 1108 n. 1075
Schedule [3] 661 n. 2041
Schedule [4] 1109 n. 1084
Schedule [5] 1108 nn. 1076 and 1082, 1119 n. 1145
Schedule [6] 1098 n. 130, 1108 n. 1082, 1109
Schedule [7] 1104 n. 1059, 1123
Schedule [8] 1123, 1124
Schedule [9] 1123, 1125 n. 1177, 1126
Schedule [10] 661 n. 2041
Schedule [11] 1107 n. 1068
Schedule [13] 1108 n. 1076, 1118 n. 1137, 1119 n. 1143, 1120 n. 1148, 1121,
1122, 1123 nn. 1161 and 1165
Schedule [14] 1118 n. 1137, 1121 n. 1150, 1123, 1126
Schedule [15] 1101 n. 1042
Schedule [16] 1101 n. 1041
Art. 29 659–664 ; 74 n. 293, 181 n. 40, 182 n. 46, 232 n. 293, 261
Fiscal charges n. 450, 276 n. 541, 761 n. 2590, 763 n. 2604, 793 n. 2764, 799
n. 2806, 820, 826, 919 n. 622
29(2) 661 n. 2041
Art. 30 1195–1206; 29 n. 58, 31 n. 66, 74 n. 293, 652 n. 1975
Asset transfer
30(1) 1201–1203, 1205 n. 380
30(2) 1098 n. 1030, 1202, 1203 n. 369, 1205 n. 380
Art. 31 484–520; 29 n. 58, 39 n. 106, 73 n. 289, 287, 288, 343 n. 159,
Non-penalization 352 n. 202, 403, 466 n. 840, 540, 820, 826, 858 n. 274
31(1) 193 n. 103, 343 n. 158, 488 n. 961, 489, 506 n. 1050, 508,
512–516, 520 n. 1130, 522, 1086 n. 977
31(2) 74 n. 296, 131 n. 25, 488 n. 961, 512 n. 1087, 521, 522 n. 1146,
523, 529, 531, 534 n. 1209, 536, 538–546, 811, 858 n. 274,
868, 869 n. 326, 870, 886, 1126, 1196, 1197 n. 333
Art. 32 816–860; 49, 197 n. 122, 204 n. 153, 291 n. 633, 297 n. 659,
Non-expulsion 403, 520, 1022 n. 566, 1063 n. 832, 1081 n. 948, 1116, 1117,
1196
32(1) 344, 856

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

32(2) 193 n. 103, 834 n. 139, 835 n. 142, 838–841

32(3) 856 n. 262, 857–859
Art. 33 337–435; 49, 69 n. 261, 151 n. 108, 181 n. 40, 183 n. 54, 210,
Non-refoulement 274, 291 n. 633, 297 n. 659, 386, 403, 407 n. 519, 420 n. 573,
428, 429, 435, 442, 443 n. 713, 462, 485, 501 n. 1026, 520, 587,
816, 819, 821, 826, 859, 1117, 1213 n. 422, 1220
33(1) 344, 346 n. 171, 386, 420 n. 574, 423, 438 n. 680, 821, 1160
n. 146
33(2) 40 n. 108, 44 n. 126, 69, 399–425, 436 n. 667, 842, 856
Art. 34 1210–1221; 31 n. 67, 74 n. 293, 181 n. 40, 216 n. 215, 820,
Naturalization 826, 1138 n. 54
Art. 35 66–67; 58, 146, 780 n. 2705
Cooperation
with UNHCR
35(1) 58 n. 208
Art. 38 54–55; 176 n. 19
Dispute settlement
Art. 40 868 n. 321
Territorial
application
Art. 41 660 n. 2034
Federal clause
Art. 42 31–35
Reservations
42(1) 30 n. 60, 31, 67 n. 252, 948 n. 130

PROTOCOL (1967)
General 54–56; 34–36, 52 n. 174, 59 n. 211, 67 n. 252, 72 n. 285, 78
n. 323, 81, 127–129, 144, 157 n. 135, 176 n. 19, 195 n. 118,
266 n. 496, 291 n. 631, 383 n. 378, 449 n. 746, 502 n. 1028,
526 n. 1164, 823, 1103 n. 1053, 1105 n. 1061, 1207 n. 387
Preamble 141
Art. I: Application 54 n. 182
Art. IV: Dispute 55 n. 184
settlement
Art. VII: Reservations 32 n. 70; 31, 34 n. 81
Art. XI: Deposit 138 n. 50

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 ACKNOWLEDGMENTS

The preparation of this second edition of The Rights of Refugees under

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

xix

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 xx ack no wledgments

Erin Collins provided superb research assistance on key aspects of emerging

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

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 acknowledg ments xxi

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

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 TABLE OF CASES

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

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 tab l e of c ases xxiii

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

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 xxiv t a b l e of ca s e s

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

International Criminal Court

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

International Criminal Tribunal for the Former Yugoslavia

Prosecutor v. Popović et al., IT-05–88-T, Trial Judgment (June 10, 2010), 206 n. 163

Iran–United States Claims Tribunal

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

Permanent Court of International Justice

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

UN Committee Against Torture

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

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 t a b l e o f ca s e s xxv

UN Human Rights Committee

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

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 xxvi t a b l e of ca s e s

Brinkhof v. Netherlands, HRC Comm. No. 402/1990, UN Doc. CCPR/C/48/D/402/

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

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Drake v. New Zealand, HRC Comm. No. 601/1994, UN Doc. CCPR/C/59/D/601/1994,

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

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Jalloh v. Netherlands, HRC Comm. No. 794/1998, UN Doc. CCPR/C/74/D/794/1998,

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

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

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

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Somers v. Hungary, HRC Comm. No. 566/1993, UN Doc. CCPR/C/53/D/566/1993,

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

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Yachnik v. Belarus, HRC Comm. No. 1990/2010, UN Doc. CCPR/C/111/D/1990/2010,

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

World Trade Organization

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

II. Regional Decisions

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

Court of Justice of the European Union

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

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Abdullahi v. Austria, C-394/12 (Dec. 10, 2013), 370 n. 314

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

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Urbing-Adam v. Administration de l’Enregistrement et des Domaines, C-267/99

(Oct. 11, 2001), 1008 n. 470
X v. Netherlands, C-175/17 (Sept. 26, 2018), 800 n. 2814
X and X v. Belgium, C-636/16 PPU (Feb. 7, 2017), Opinion of Advocate General
Mengozzi 544n136; (Mar. 7, 2017), Judgment, 339 n. 136

European Commission on Human Rights

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

European Court of Human Rights

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

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

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Inter-American Commission on Human Rights

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

Inter-American Court of Human Rights

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

III. National Decisions

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

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

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 xxxviii t a b l e of ca s e s

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

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

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

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

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 t a b l e of ca s es xxxix

Boateng, (1993) 65 FTR 81 (Can. FCA, June 1, 1993), 1147 n. 89

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

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 xl tab l e of c ases

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

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

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

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

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

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

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 t a b l e of ca s e s xli

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

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

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

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

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

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 xlii t a b l e o f ca s e s

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

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

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

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 ta ble of c ases xliii

M, [2003] NZAR 614 (NZ HC, Feb. 19, 2003), 61 n. 223

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

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

Papua New Guinea

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

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

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

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

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

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

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 t a b l e of ca s e s xlv

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

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 xlvi t a b l e o f ca s e s

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

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 ta ble of c as es xlvii

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

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 xlviii t a b l e of c a s e s

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

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

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

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 TABLE OF TREATIES AND OTHER INTERNATIONAL
INSTRUMENTS

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

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 t a b l e of t r e a t i e s li

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

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 lii t a b l e of tr e a t i es

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

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 t a b l e of tr ea ti e s liii

Art. 23, 648 n. 1950, 967

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

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 liv t a b l e o f tr e a t i es

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

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 t a b l e of t r e a t i e s lv

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

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 lvi t a b l e o f tr e a t i es

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

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 t a b l e of tr ea ti e s lvii

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

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 lviii tab l e of t reat ies

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

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 ta ble of tr ea ties lix

Art. I(4)(e), 69 n. 261

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

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 lx t a b l e of t r e a t i es

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

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 ta ble of tr ea ties lxi

Art. 8, 1166 n. 178

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

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 lxii ta ble of t reat ies

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

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 t a b l e of t r e a t i e s lxiii

2001
June 28 Council Directive 2001/51/EC supplementing the provisions of Article 26 of
the Convention implementing the Schengen Agreement of 28 June 2001
(Schengen Directive) (OJ 2001 L187/46)
Arts. 4(2) and (3), 483 n. 933
July 20 Council Directive 2001/55/EC on minimum standards for giving temporary
protection in the event of a mass influx of displaced persons and on measures
promoting a balance of efforts between Member States in receiving such persons
and bearing the consequences thereof (Temporary Protection Directive) (OJ 2001
L12/46), 72, 1023
Art. 6(2), 1163 n. 160
Art. 12, 929 n. 27, 955 n. 179
Art. 13, 76 n. 308, 1018 n. 532
Art. 13(1), 76 n. 308, 1034 n. 652
Art. 13(2), 1024 n. 577
Art. 15, 77, 667 n. 2077
Art. 17(1), 1024 n. 577
Dec. 13 Declaration of States Parties to the 1951 Convention and/or its 1967 Protocol
(18 UNGA Resolution A/RES/57/187), 59 n. 211, 144 n. 77, 157 n. 135
2002
Dec. 24 Treaty establishing the European Community (Treaty of Nice consolidated
version) (2002/C325.01)
Art. 68, 73 n. 288
2003
Jan. 27 Council Directive 2003/9/EC laying down minimum standards for the
reception of asylum-seekers (Reception Directive) (OJ 2003 L 31/18), 72
Art. 7(1), 885 n. 419
Art. 15, 76 n. 307
Art. 16(2), 608 n. 1683
Sept. 22 Council Directive 2003/86/EC on the right to family reunification (Family
Reunification Directive) (OJ 2003 L251/12), 77 n. 314, 691 n. 2202
Art. 3(2)(a), 666 n. 2073
Art. 3(2)(b) and (c), 667 n. 2077
Art. 4, 695
Art. 4(2), 668 n. 2082
Art. 4(3), 668 n. 2083
Art. 4(4), 668 n. 2084
Art. 6(1), 669 n. 2090
Art. 7(1), 669 n. 2089
Art. 8, 670 n. 2094
Art. 9(2), 668 n. 2085

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 lxiv ta ble of t reat ies

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

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 ta ble of tr ea ties lxv

Art. 27(2), 740 n. 2479

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

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 lxvi ta ble of t reat ies

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

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 u

Introduction

The two core concerns of international refugee law are, first, qualification for
refugee status and, second, the rights that follow from refugee status. The first
of these questions has attracted by far the greater attention:

While courts have engaged heavily with the question of who qualifies as
a refugee . . . there has not been the same level of engagement with the
remedy: refuge. Accordingly, what can be observed are the beginnings of
an asymmetrical development between questions of who qualifies for
protection, and the nature of the protection that is owed.1

This analytical gap can be explained at least in part by reference to the

tradition of most developed states simply to admit refugees, formally or in
practice, as long-term or permanent residents. While not required by the
Refugee Convention,2 this approach led de facto to respect for most
Convention rights (and often more). Because refugee rights were not at risk,
there was understandably little perceived need to elaborate their meaning.
Today, however, governments of the industrialized world increasingly
question the logic of routinely assimilating refugees, and have therefore sought
to limit their access to Convention rights. Most commonly, questions are now
raised about whether refugees should be allowed to enjoy freedom of move-
ment, to work, to access public welfare programs, or to be reunited with family
members. In some states, doubts have been expressed about the propriety of
exempting refugees from compliance with visa and other immigration rules,
and even about whether there is really a duty to admit refugees at all. There is
also a marked interest in the authority of states to contract-out protection
responsibilities to other countries and otherwise to divest themselves of even
such duties of protection as are recognized.3
1
K. Ogg, “Protection from ‘Refuge’: On What Legal Grounds will a Refugee be Saved from
Camp Life?,” (2016) 28(3) International Journal of Refugee Law 384, at 414–415.
2
See Chapters 4.1 and 7.4.
3
See e.g. G. Noll, Negotiating Asylum: The EU Acquis, Extraterritorial Protection, and the
Common Market of Deflection (2000); T. Gammeltoft-Hansen, Access to Asylum:
International Refugee Law and the Globalisation of Migration Control (2011); and
D. Ghezelbash, Refuge Lost: Asylum Law in an Interdependent World (2018).
1

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 2 i n t rod u c t i on

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

4
“Countries in developed regions hosted 16 per cent of refugees, while one third of the global
refugee population (6.7 million people) were in the Least Developed Countries”: United
Nations High Commissioner for Refugees, “Global Trends: Forced Displacement in 2018”
(2019), at 2.
5
Indeed, both Africa and Latin America have formally embraced broader understandings of
refugee status than required by the Refugee Convention: see Chapter 1.5.3.
6
There are 148 state parties to the Refugee Convention and/or Protocol: https://treaties.un
.org, accessed Dec. 21, 2020.
7
This book is conceived largely as a work of comparative international law: see A. Roberts
et al., “Comparative International Law: Framing the Field,” (2015) 109(3) American Journal
of International Law 467.
8
See generally Chapter 1.5.4.
9
See Chapter 1.5.4 at notes 388–390 (re Civil and Political Covenant) and 400–403 (re
Economic, Social and Cultural Covenant).

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 introduction 3

international supervisory bodies established by states – a mechanism that

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

10
See Chapter 1.5.4 at notes 393–446.
11
Indeed, the synthesis of refugee and international human rights law is not simply allowed,
but is rather clearly mandated by refugee law itself: see Chapters 1.4.5 and 1.5.4.
12
International Covenant on Civil and Political Rights, 999 UNTS 172 (UNTS 14668),
adopted Dec. 16, 1966, entered into force Mar. 23, 1976 (Civil and Political Covenant);
International Covenant on Economic, Social and Cultural Rights, 993 UNTS 3 (UNTS
14531), adopted Dec. 16, 1966, entered into force Jan. 3, 1976 (Economic, Social and
Cultural Covenant).
13
Of the 148 state parties to the Refugee Convention and/or Protocol, only three have not
signed or ratified either of the Human Rights Covenants: Holy See, St. Kitts and Nevis, and
Tuvalu. Four have signed or ratified only the International Covenant on Civil and Political
Rights: Botswana, Mozambique, Nauru, and Samoa. One state party to the Refugee
Convention, Solomon Islands, has signed or ratified only the International Covenant on
Economic, Social and Cultural Rights: https://indicators.ohchr.org, accessed Mar. 20, 2020.

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 4 in t roduc tio n

of the world’s refugees reside in states which have signed or ratified the
two Covenants on Human Rights.14 As such, both in principle and in
practice, refugee rights will in the majority of cases consist of an amalgam
of principles drawn from both refugee law and the Covenants. Third, the
Covenants and the Refugee Convention aspire to comparable breadth of
protection, and set consistently overlapping guarantees. As will be clear
from the analysis below, even when refugee law is the source of a stronger
or more contextualized form of protection on a given issue, it is usually
the case that one or both of the Covenants contribute in some way to
clarify the relevant responsibilities of states.
In order comprehensively to define the core rights to which all refugees are
entitled, this book does not address other than incidentally a variety of related
issues. Most obviously, it is not a study of the refugee definition.15 Neither does
it seek to explain the work of the international institutions charged with the
protection of refugees,16 or the ways in which the refugee protection regime as
a whole could be more effectively configured.17
Nor does this book present a detailed analysis of the full range of highly
specialized human rights treaties established by the United Nations and
regional bodies.18 The decision to avoid canvassing all potentially pertinent
international human rights was not taken lightly, since it is clearly correct that
particular refugees also benefit from the protection of specialized branches of
international human rights law. Refugees who are members of other inter-
nationally protected groups, such as racial minorities, disabled persons,
women, or children, may avail themselves of specialized treaty rights in most
14
https://indicators.ohchr.org, accessed Mar. 20, 2020, and United Nations High
Commissioner for Refugees, “Global Trends: Forced Displacement in 2018” (2019), at
Annex, Table 1. The two most critical exceptions are Malaysia (which hosts some 120,000
refugees) and South Sudan (which hosts more than 290,000 refugees). Neither of these
countries is a party to the Refugee Convention or Protocol either.
15
The scope of the Convention refugee definition in international and comparative law is
analyzed in detail in J. Hathaway and M. Foster, The Law of Refugee Status (2014),
conceived as the companion volume to this book. See also relevant portions of
G. Goodwin-Gill and J. McAdam, The Refugee in International Law (2007), at Part I(1),
and of A. Grahl-Madsen, The Status of Refugees in International Law (vol. I, 1966), at
142–304.
16
On this issue, see e.g. G. Loescher, The UNHCR and World Politics: A Perilous Path (2001);
A. Helton, The Price of Indifference: Refugees and Humanitarian Action in the New Century
(2002); A. Betts, G. Loescher, and J. Milner, The United Nations High Commissioner for
Refugees (UNHCR): The Politics and Practice of Refugee Protection into the 21st Century
(2008); and K. Bergtora Sandvik and K. Lindskov Jacobsen eds., UNHCR and the Struggle
for Accountability (2017).
17
See e.g. J. Hathaway ed., Reconceiving International Refugee Law (1997); A. Betts and
P. Collier, Refuge: Transforming a Broken Refugee System (2017); and A. Aleinikoff and
L. Zamore, The Arc of Protection: Reforming the International Refugee Regime (2019).
18
It is important to recognize that the UN Covenants on Human Rights set the duties that
inspired and are applied in the many more specialized accords.

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 introduction 5

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

19
Of particular importance are the International Convention on the Elimination of All Forms
of Racial Discrimination, 60 UNTS 195 (UNTS 9464), adopted Dec. 21, 1965, entered into
force Jan. 4, 1969; the Convention on the Elimination of All Forms of Discrimination
against Women, 1249 UNTS 13 (UNTS 20378), adopted Dec. 18, 1979, entered into force
Sept. 3, 1981; the Convention on the Rights of the Child, 1577 UNTS 3 (UNTS 27531),
adopted Nov. 20, 1989, entered into force Sept. 2, 1990; and the Convention on the Rights
of Persons with Disabilities, 2515 UNTS 3 (UNTS 44910), adopted Jan. 24, 2007, entered
into force May 3, 2008.
20
See e.g. T. Meron, Human Rights and Humanitarian Norms as Customary Law (1989), at
3–78; and D. Cantor and J.-F. Durieux eds., Refuge from Inhumanity? War Refugees and
International Humanitarian Law (2014).
21
See Chapter 1.5.3. See note 23 for leading analyses of these regional refugee regimes.
22
More limited analysis of these sources of obligation is, however, provided in Chapters 1.5.3
and 1.5.4.
23
On specialized applications of refugee law to important refugee populations see in particu-
lar E. Arbel, C. Dauvergne, and J. Millbank eds., Gender in Refugee Law: From the Margins
to the Centre (2014); J. Pobjoy, The Child in International Refugee Law (2017); and
M. Crock, M. Smith-Khan, R. McCallum, and B. Saul, The Legal Protection of Refugees
With Disabilities: Forgotten and Invisible? (2017). On regional refugee regimes see generally
A. Abass and F. Ippolito eds., Regional Approaches to the Protection of Asylum Seekers: An
International Law Perspective (2016) and P. Mathew and T. Harley, Refugees, Regionalism
and Responsibility (2016). With respect to specific regional regimes see re Europe
H. Battjes, European Asylum Law and International Law (2006) and V. Chetail,
P. DeBruycker, and F. Maiani eds., Reforming the Common European Asylum System

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 6 in t roduc tio n

In conceiving this work, an effort has been made to be attentive to the

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

(2016); re Africa M. Sharpe, The Regional Law of Refugee Protection in Africa (2018); and re
Latin America L. Jubilut, M. Vera Espinoza, and G. Mezzanotti eds., Latin America and
Refugee Protection: Regimes, Logics and Challenges (forthcoming 2021).

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 introduction 7

drafting, even as this evidence of historical intention is balanced against more

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

24
See Chapter 3.1.
25
See generally J. Hathaway and A. Cusick, “Refugee Rights Are Not Negotiable,” (2000) 14(2)
Georgetown Immigration Law Journal 481.

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 8 in t rod uc ti on

civil, political, economic, social, or cultural), these chapters are structured

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

26
It is also hoped that adoption of a chapter structure which draws attention to the delays set
by refugee law for the acquisition of rights will facilitate critical assessment of the
Convention’s implicit assumptions regarding the timing and duration of the legal commit-
ment to protection.
27
See note 17.

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 introduction 9

foundation of the international protection regime [with] enduring value and

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

28
“Ministerial Communiqué,” UN Doc. HCR/MIN/COMMS/2011/16, Dec. 8, 2011, at [2].

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 1

The Evolution of the Refugee Rights Regime

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

1.1 International Aliens Law

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

1
Convention relating to the Status of Refugees, 189 UNTS 2545 (UNTS 2545), done July 28,
1951, entered into force Apr. 22, 1954 (Refugee Convention).
10

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 1. 1 in t er n at i o n al al iens law 11

a territory governed by rules of conduct different from those that prevail in

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

2
See generally R. Lillich, The Human Rights of Aliens in Contemporary International Law
(1984) (Lillich, Rights of Aliens), at 5–40.
3
C. Phillipson, The International Law and Custom of Ancient Greece and Rome (1911), at
122–209.
4
Lillich, Rights of Aliens, at 6–7.
5
H. Walker, “Modern Treaties of Friendship, Commerce and Navigation,” (1958) 42
Minnesota Law Review 805 (Walker, “Treaties of Friendship”), at 823.
6
C. Amerasinghe, State Responsibility for Injuries to Aliens (1967) (Amerasinghe, State
Responsibility), at 23; A. Roth, The Minimum Standard of International Law Applied to
Aliens (1949) (Roth, Minimum Standard), at 113.

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 12 1 ev olutio n of the r efugee r ights regime

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

7
This carefully constructed list of rights universally held by aliens was based on an empirical
survey spanning 150 years: Roth, Minimum Standard, at 134–185.
8
See generally Walker, “Treaties of Friendship,” at 810–812.

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 1.1 in t e r n a t i o n a l a l i e n s l a w 13

citizens of more influential countries, the definition of aliens’ rights in absolute

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

9
Walker, “Treaties of Friendship,” at 812.
10
“[T]he term ‘refugee’ shall apply to any person who . . . is outside the country of his
nationality and is unable or, owing to such fear, is unwilling to avail himself of the
protection of that country”: Refugee Convention, at Art. 1(A)(2). See generally A. Grahl-
Madsen, The Status of Refugees in International Law (vol. I, 1966) (Grahl-Madsen, Status of
Refugees I), at 150–154; G. Goodwin-Gill and J. McAdam, The Refugee in International Law
(2007) (Goodwin-Gill and McAdam, Refugee in International Law), at 63; and J. Hathaway
and M. Foster, The Law of Refugee Status (2014) (Hathaway and Foster, Refugee Status), at
17–75.
11
“The fate of the individual is worse than secondary in this scheme: it is doctrinally non-
existent, because the individual, in the eyes of traditional international law, like the alien of
the Greek city-State regime, is a non-person”: Lillich, Rights of Aliens, at 12.
12
Diplomatic protection is rooted in “a statement by the Swiss jurist Emmerich de Vattel in
1758 that ‘whoever ill-treats a citizen indirectly injures the State, which must protect that

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 14 1 ev olution o f the refugee ri ght s r e gime

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

citizen,’ and, secondly, in a dictum of the Permanent Court of International Justice in 1924
in the Mavrommatis Palestine Concessions case that ‘by taking up the case of one of its
subjects and by resorting to diplomatic action or international judicial proceedings on his
behalf, a State is in reality asserting its own right, the right to ensure, in the person of its
subjects, respect for the rules of international law’”: International Law Commission, “Draft
Articles on Diplomatic Protection with Commentaries,” [2006] 2 UN Yearbook of
International Law 27. As the International Court of Justice has observed, “[t]he State
must be viewed as the sole judge to decide whether its protection will be granted, to what
extent it is granted, and when it will cease”: Barcelona Traction, Light and Power Company
Limited (Belgium v. Spain), [1970] ICJ Rep 3 at [79].
13
“It had been suggested that the traditional approach to diplomatic protection . . . should be
developed to recognise that in certain circumstances where injury is the result of a grave
breach of a jus cogens norm, the state whose national has been injured, should have a legal
duty to exercise diplomatic protection on behalf of the injured person. As a corollary to
that, states would be obliged to make provision in their municipal law for the enforcement
of this right before a competent court or other independent national authority. It appears
from the [International Law Commission] report [of 2000, UN Doc. A/CN.4/506] that
although there was some support for this development, and some recent national constitu-
tions made provision for such an obligation, presently this is not the general practice of
states. Currently the prevailing view is that diplomatic protection is not recognised by
international law as a human right and cannot be enforced as such”: Kaunda v. President of
the Republic of South Africa, (2005) 4 SA 235 (SA CC, Aug. 4, 2004), at [28]–[29].
14
Cited in Amerasinghe, State Responsibility, at 59. As Amerasinghe demonstrates, however,
many of the rules governing the procedures for assertion of a claim and calculation of
damages are intimately related to the position of the injured alien: ibid. at 61–65.
15
“It is through the medium of their nationality only that individuals can enjoy benefits from
the existence of the Law of Nations . . . Such individuals as do not possess any nationality
enjoy no protection whatever, and if they are aggrieved by a State they have no way to
redress, there being no State that would be competent to take their case in hand. As far as
the Law of Nations is concerned, apart from morality, there is no restriction whatever to
cause a State to abstain from maltreating to any extent such stateless individuals”:

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 1.1 in t e r n a t i o n a l a l i e n s l a w 15

The emergence of general principles of aliens law nonetheless signaled

a critical conceptual breakthrough in international law, which laid the ground-
work for the subsequent development of the refugee rights regime.
First, aliens law recognizes the special vulnerabilities which attend persons
outside the bounds of their national state. Aliens have no right to participate in,
or to influence, a foreign state’s lawmaking process, yet are subjected to its
rigors. As such, the domestic laws of the foreign state might, in the absence of
international law, make no or inadequate provision for the alien to access
meaningful protection against harm:

[T]he individual, when he leaves his home State, abandons certain rights
and privileges, which he possessed according to the municipal law of his
State and which, to a certain limited extent, especially in a modern dem-
ocracy, gave him control over the organization of the State . . . In a foreign
State, he is at the mercy of the State and its institutions, at the mercy of the
inhabitants of the territory, who in the last resort accord him those rights
and privileges which they deem desirable. This is a situation which hardly
corresponds to modern standards of justice.16

Aliens law effects a minimalist accommodation of the most basic concerns of

foreigners in the interest of continued international intercourse. It is a formal
acknowledgment that commercial linkages and other aspects of national self-
interest require legal systems to adapt to the reasonable expectations of non-
nationals.
Second, the development of aliens law brought the vindication of particu-
larized harms within the realm of international legal relations. A state which
fails to live up to the minimum standards of protection owed to aliens can be
forced to answer for its failures through the formal mechanisms of diplomatic
protection and international arbitration. International law was transformed
from a system focused solely on resolving the conflicting corporate interests of
states, to a regime in which the particularized harms experienced by at least
L. Oppenheim, International Law: A Treatise (1912), at 369. The International Law
Commission has more recently championed the view that the state in which a refugee
lawfully and habitually resides may choose to extend diplomatic protection to that refugee,
though not for purposes of advancing a claim against the refugee’s country of nationality:
International Law Commission, “Draft Articles on Diplomatic Protection with
Commentaries,” [2006] 2 UN Yearbook of International Law 25, at Art. 8(2)–(3). This
principle remains, however, de lege ferenda: R (Al Rawi) v. Secretary of State for the Home
Department, [2006] EWCA Civ 1279 (Eng. CA, Oct. 12, 2006), at [63]. Interestingly, even
the Commission declined to press for a right to exercise diplomatic protection against
a refugee’s country of nationality in view of the predominance of nationality as the basis for
the exercise of diplomatic protection, as well as on the policy grounds of “open[ing] the
floodgates for international litigation” and not “deter[ring] States from accepting refugees”:
International Law Commission, “Draft Articles on Diplomatic Protection with
Commentaries,” [2006] 2 UN Yearbook of International Law 37, at Art. 8(10).
16
Roth, Minimum Standard, at 113.

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 16 1 e vo lution o f the refugee ri ghts regime

some individual human beings are subsumed within the definition of the
national interest.
Third, given that international legal accountability would mean nothing
without effective action, aliens law embraced surrogacy as the conceptual
bridge between particularized harms and international enforceability.
Because individuals are in most cases not recognized actors in international
legal relations, all wrongs against a citizen are notionally transformed into
harms done to the national state, which is deemed to enjoy a surrogate
right to pursue accountability in its sole discretion.17 This is not a trustee
relationship, as national states are required neither to take the needs of the
injured individual into account, nor to make restitution of any proceeds
derived from enforcement. As unfair as it undoubtedly is that the persons
who actually experience a loss abroad have so little control over process or
recovery of damages, the surrogacy relationship implemented by inter-
national aliens law nonetheless served the objective of forcing foreign states
to take respect for the human dignity of aliens more seriously. As observed
by Amerasinghe,

International society as a whole is, perhaps, content to keep the law in

a fairly undeveloped state. Thus, it has become more an instrument for
keeping in check the powers of States vis à vis aliens, emanating from
extreme theories of State sovereignty, than a reflection of the proper
aspirations of an international society seeking to reconcile the conflicting
interests of State and alien with a view to ensuring ideal justice for the
individual.18

Fourth, and most specifically, the parallel system of bilateral agreements on

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

17
“Nationality is a juridical and political link that unites an individual with a State and it is
that link which enables a State to afford protection against all other States”: L. Sohn and
T. Buergenthal, The Movement of Persons Across Borders (1992) (Sohn and Buergenthal,
Movement of Persons), at 39.
18
Amerasinghe, State Responsibility, at 285.

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 1.2 international pro tection of minorities 17

1.2 International Protection of Minorities

A second body of law which influenced the structure of the international
refugee rights regime was the League of Nations system for the protection of
national minorities. Like aliens law, the Minorities Treaties which emerged
after the First World War were intended to advance the interests of states.
Their specific goal was to require vanquished states to respect the human
dignity of resident ethnic and religious minorities, in the hope of limiting the
potential for future international conflict:

We are trying to make a peaceful settlement, that is to say, to eliminate

those elements of disturbance, so far as possible, which may interfere with
the peace of the world . . . The chief burden of the war fell upon the greater
Powers, and if it had not been for their action, their military action, we
would not be here to settle these questions. And, therefore, we must not
close our eyes to the fact that, in the last analysis, the military and naval
strength of the Great Powers will be the final guarantee of the peace of the
world . . . Nothing, I venture to say, is more likely to disturb the peace of
the world than the treatment which might in certain circumstances be
meted out to minorities. And, therefore, if the Great Powers are to
guarantee the peace of the world in any sense, is it unjust that they should
be satisfied that the proper and necessary guarantee has been given?19

The Minorities Treaties marked a major advance over the conceptual

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

19
Speech by United States President Wilson to the Peace Conference, May 31, 1919, cited in
L. Sohn and T. Buergenthal, International Protection of Human Rights (1973), at 216–217.

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 18 1 evolution of the refugee rights regime

states took advantage of their right to supervise the protection of minorities to

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

20
The Permanent Court of International Justice could be asked to render advisory opinions
on contentious legal issues. See e.g. Greco-Bulgarian Communities, [1930] PCIJ Rep, Ser. B,
No. 17; Access to German Minority Schools in Upper Silesia, [1931] PCIJ Rep, Ser. A/B, No.
40; Minority Schools in Albania, [1935] PCIJ Rep, Ser. A/B, No. 64.

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 1.3 l eague of nations codi fications of refugee rights 19

international community itself in the assertion of human rights claims. This

evolution was very important to refugees and stateless persons, who are by
definition not in a position to look to their national state to protect their
interests.

1.3 League of Nations Codifications of Refugee Rights

Aliens law was the first legal system to deny the absolute right of states to treat
persons within their jurisdiction in whatever manner they deemed appropri-
ate. It recognized the special vulnerabilities of persons outside their national
state, and established a combination of absolute and contingent duties owed to
aliens. It was enforceable by a system of interstate accountability, operational-
ized at the bilateral level. The League of Nations system for protection of
national minorities built on these achievements, but strengthened enforceabil-
ity by replacing pure bilateral accountability with the first system of collectiv-
ized surrogacy. The concern of the international community was transformed
from simply the facilitation of national protective efforts to direct engagement
as the source of residual protection for those whose interests were not
adequately safeguarded by national governments. States were directly account-
able to the international community for actions in disregard of human rights
within their own borders. The legal framework for an international refugee
rights regime draws on the progressive refinements achieved under these two
systems.
The early efforts of the international community to protect refugees
stemmed from a series of exoduses in the years following the end of the First
World War: some 2 million Russians, Armenians, and others were forced to
flee their countries between 1917 and 1926. The flight of these refugees
unfortunately coincided with the emergence of modern systems of social
organization throughout most of Europe. Governments began to regulate
large parts of economic and social life, and to safeguard critical entitlements
for the benefit of their own citizens. This commitment to enhanced investment
in the well-being of their own citizenry led states to reassert the importance of
definite boundaries between insiders and outsiders, seen most clearly in the
reinforcement of passport and visa controls at their frontiers. Equally import-
ant, access to such important social goods as the right to work and public
housing was often limited to persons able to prove citizenship.
The impact of this shift in European social organization was mitigated by
the network of bilateral treaties of friendship, commerce, and navigation
established under the rubric of international aliens law.21 These agreements
guaranteed the nationals of contracting states access while abroad to most of
the benefits normally reserved for citizens. The essential precondition was
21
Bilateral aliens treaties are discussed at note 5.

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 20 1 e volution of the r efugee rights regime

reciprocity: the citizens of one state could expect benefits in the cooperating
state only if their own government in turn ensured the rights of citizens of that
partner state. If reciprocity was not respected, or if there was no bilateral
arrangement between an individual’s home state and the foreign country
into which entry was sought, access to the territory, or at least to important
social benefits, would likely be denied.
This reciprocity requirement was disastrous for early groups of refugees.
Most had no valid identity or travel documents to prove their nationality in
a cooperating state. Worse still, the 1.5 million Russian refugees who fled the
Bolshevik Revolution were formally denationalized by the new Soviet govern-
ment, and therefore clearly ineligible to benefit from any bilateral arrangement.
Without documentation to establish their eligibility for entry and residence,
refugees were either turned away or, if able to avoid border controls, barred
from work and other regulated sectors. Lacking valid travel documents, they
were not able to move onward from first asylum states in search of better living
conditions. The result was many truly desperate people, often destitute and ill,
unable either to return to their home state or to live decent lives abroad.
The first generation of refugee accords was an attempt to respond to the
legally anomalous situation of refugees.22 As observed by the League of Nations
Advisory Commission for Refugees, “the characteristic and essential feature of
the problem was that persons classed as ‘refugees’ have no regular nationality
and are therefore deprived of the normal protection accorded to the regular
citizens of a State.”23 Like all aliens, refugees were essentially at the mercy of the
institutions of a foreign state. In contrast to other foreigners, however, refugees
clearly could not seek the traditional remedy of diplomatic protection from
their country of nationality:

The refugee is an alien in any and every country to which he may go. He
does not have the last resort which is always open to the “normal alien” –
return to his own country. The man who is everywhere an alien has to live
in unusually difficult material and psychological conditions. In most cases
he has lost his possessions, he is penniless and cannot fall back on the
various forms of assistance which a State provides for its nationals.
Moreover, the refugee is not only an alien wherever he goes, he is also
an “unprotected alien” in the sense that he does not enjoy the protection of
his country of origin. Lacking the protection of the Government of his
country of origin, the refugee does not enjoy a clearly defined status based
upon the principle of reciprocity, as enjoyed by those nationals of those
states which maintain normal diplomatic relations. The rights which are

22
See generally J. Hathaway, “The Evolution of Refugee Status in International Law:
1920–1950,” (1984) 33 International and Comparative Law Quarterly 348 (Hathaway,
“Evolution of Refugee Status”), at 350–361.
23
“Report by the Secretary-General on the Future Organisation of Refugee Work,” LN Doc.
1930.XIII.2 (1930), at 3.

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 1.3 l eague of n ations codifications of refugee r ights 21

conferred on such nationals by virtue of their status, which is dependent

upon their nationality, are generally unavailable to him. A refugee is an
anomaly in international law, and it is often impossible to deal with him in
accordance with the legal provisions designed to apply to aliens who
receive assistance from their national authorities.24

Confronted by largely unstoppable flows of desperate people who did not fit

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

24
“Communication from the International Refugee Organization to the Economic and Social
Council,” UN Doc. E/1392, July 11, 1949, at App. I.

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 22 1 e v o l u t i o n o f t h e re f u g e e r i g h t s r eg i m e

when conditions normalized.25 There was accordingly no need to do more

than bring refugees within the ranks of admissible foreigners.
The 1928 Arrangement relating to the Legal Status of Russian and
Armenian Refugees,26 however, departed from this pattern. Increasing polit-
ical and economic instability, coupled with the persistence of the “temporary”
refugee phenomenon, had led some states to refuse to assimilate refugees to
most-favored foreigners. As generosity subsided, the League of Nations elected
to standardize the range of rights that should be extended to refugees. While
framed as a series of non-binding recommendations to states, the 1928
Arrangement set standards for the recognition of personal status, and empha-
sized the inappropriateness of conditioning refugee rights on respect for
reciprocity by their home state. The Arrangement also addressed a number
of more detailed concerns, such as access to the courts, the right to work,
protection against expulsion, equality in taxation, and the nature of national
responsibilities to honor League of Nations identity certificates.
Reliance on moral suasion alone to induce uniform respect for the human
dignity of refugees did not, however, prove satisfactory:

The results so far secured, however, leave something to be desired as regards

both the legal status and conditions of life of refugees. The replies received
[from states] to the enquiry into the application of the Arrangement . . .
show that there is still much to be done before the position of refugees in all
countries is such as no longer to call for strong and continued international
action. The striking feature of the replies and of the established known facts
is the comparative inefficacity of the recommendations.27

The Great Depression had understandably fortified the resolve of states to

preserve scarce entitlements for their own citizens. Unlike other foreigners
who responded by leaving, however, refugees could not return home.
The dilemma was sufficiently serious that in 1933 the League of Nations
Intergovernmental Commission, charged with oversight of refugee protection,
observed that “[t]he desirability of a convention aiming at securing a more
stable legal status for refugees [was] unanimously recognized,”28 and that “the
25
“A final solution of the refugees problem can accordingly only be furnished by naturalisa-
tion in the countries in which the refugees reside, or by restoring their original nationality
to them. As neither of these alternatives is possible at the moment, it has been necessary to
institute a provisional system of protection which is embodied in the Inter-Governmental
Arrangements of 1922, 1924, 1926 and 1928 [emphasis added]”: “Report by the Secretary-
General on the Future Organisation of Refugee Work,” LN Doc. 1930.XIII.2 (1930), at 3.
26
Arrangement relating to the Legal Status of Russian and Armenian Refugees, 89 LNTS 53,
done June 30, 1928.
27
“Report by the Inter-Governmental Advisory Commission for Refugees on the Work of its
Fourth Session,” 12(2) LN OJ 2118 (1931), at 2119.
28
“Report of the Intergovernmental Commission and Communication from the Governing
Body of the Nansen International Office,” LN Doc. C.311.1933 (1933), at 1.

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 1.3 l eague of n ations codific ations of refugee rights 23

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

29
“Work of the Inter-Governmental Advisory Commission for Refugees during its Fifth
Session and Communication from the International Nansen Office for Refugees,” 5(1) LN
OJ 854 (1933), at 855.
30
159 LNTS 3663, done Oct. 28, 1933, entered into force June 13, 1935 (1933 Refugee
Convention).
31
The 1933 Refugee Convention established the second voluntary system of international
supervision of human rights (preceded only by the 1926 Slavery Convention, 60 LNTS 253,
done Sept. 25, 1926, entered into force Mar. 9, 1927).
32
See Chapter 1.1 at note 5.
33
“Each of the Contracting Parties undertakes not to remove or keep from its territory by
application of police measures, such as expulsions or non-admittance at the frontier
(refoulement), refugees who have been authorised to reside there regularly, unless the
said measures are dictated by reasons of national security or public order”: 1933 Refugee
Convention, at Art. 3.
34
“Work of the Inter-Governmental Advisory Commission for Refugees during its Eighth
Session,” LN Doc. C.17.1936.XII (1936), at 156.

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 24 1 e v o l u t i o n o f t h e re f u g e e r i g h t s r e g i m e

recognition of legal status and access to the courts, were guaranteed absolutely.
More commonly, one of three contingent rights formulations was used.
Refugees were to have access to work, social welfare, and most other rights
on the same terms as the nationals of most-favored nations. Exceptionally, as
with liability to taxation, refugees were assimilated to citizens of the host state.
Education rights, conversely, were mandated only to the extent provided to
foreigners generally. This pattern of variant levels of obligation toward refu-
gees continues to the present day.35 It is noteworthy, however, that the 1933
Convention guaranteed almost all refugee rights either absolutely or on terms
of equivalency with the citizens of most-favored states.
In practice, however, the 1933 Convention did not significantly expand
refugee rights. Only eight states ratified the treaty, several with major reserva-
tions. The assimilation of refugees to most-favored foreigners in any event
proved an inadequate guarantee of reasonable treatment, as the intensification
of the unemployment crisis led states to deny critical social benefits, including
the right to work, even to established foreigners:

Some countries have found it necessary to introduce restrictions on the

employment of foreign workers and, as a result, refugees who had been
employed for years have been deprived of their livelihood, while in other
countries, as a result of these restrictions, refugees have become vagrants,
and this has been considered a sufficient reason for their expulsion. Unlike
other foreigners in a similar position, these refugees could not be repatri-
ated. Their lot has become a tragic one, since they have been obliged to
enter first one country and then another illegally; many of them are thus
compelled to live as outlaws.36

The strategy of assimilating refugees to aliens, while valuable in the earlier,

more cosmopolitan era, now condemned refugees to real hardships. Yet return
home had not been possible for most refugees, and few European states had
agreed to grant naturalization.37
One answer to this dilemma would have been to extend national treatment
to refugees. The League of Nations, however, was engaged in a rearguard action
intended simply to preserve the “most-favored alien” guarantees secured under
the 1933 Convention. Some states were unwilling to grant refugees rights even
35
See Chapters 3.2 and 3.3.
36
“Report Submitted by the Sixth Committee to the Assembly of the League of Nations:
Russian, Armenian, Assyrian, Assyro-Chaldean, Saar and Turkish Refugees,” LN Doc.
A.45.1935.XII (1935).
37
“Unfortunately, for various reasons, [naturalisation] encountered considerable difficulties
even before countries became reluctant, owing to their unemployment problems, to
increase the number of workers . . . [A] surprisingly small percentage of refugees had
succeeded in obtaining naturalisation, and those modest results, combined with existing
political and economic conditions, do not suggest that too much hope should be pinned to
naturalisation as a general and early remedy for the refugee problem in Europe”: ibid. at 2.

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 1.3 l eague of n ations codific ations of refugee rights 25

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

38
“Work of the Inter-Governmental Advisory Commission for Refugees during its Eighth
Session,” LN Doc. C.17.1936.XII (1936), at 156–157.
39
3952 LNTS 77, done July 4, 1936.
40
“Report Submitted by the Sixth Committee to the Assembly: Russian, Armenian, Assyrian,
Assyro-Chaldean, Saar and Turkish Refugees,” LN Doc. A.45.1935.XII (1935), at 2.
41
“Work of the Inter-Governmental Advisory Commission for Refugees during its Eighth
Session,” LN Doc. C.17.1936.XII (1936), at 159.
42
192 LNTS 4461, done Feb. 10, 1938 (1938 Refugee Convention).

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 26 1 e volution of the r efugee rights regime

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

1.4 The Convention relating to the Status of Refugees

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

43
1938 Refugee Convention, at Art. 15.
44
G. Coles, “Approaching the Refugee Problem Today,” in G. Loescher and L. Monahan eds.,
Refugees and International Relations 373 (1990).

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 1.4 c onvention r elating to the status of refugees 27

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

45
See generally L. Holborn, The International Refugee Organization: A Specialized Agency of
the United Nations (1956); Independent Commission on International Humanitarian
Issues, Refugees: The Dynamics of Displacement (1986), at 32–38.
46
United Nations Department of Social Affairs, “A Study of Statelessness,” UN Doc. E/1112,
Feb. 1, 1949 (United Nations, “Statelessness”).
47
See J. Hathaway, “A Reconsideration of the Underlying Premise of Refugee Law,” (1990) 31(1)
Harvard International Law Journal 129, at 144–151.
48
“If the General Council accepts the recommendation . . . with regard to the termination of
the [International Refugee] Organization’s care and maintenance programme, the
Director-General [of IRO] assumes that Governments will wish to revert to their trad-
itional pre-war policy in granting material assistance to refugees. Thus individual
Governments would undertake to provide for any necessary care and maintenance of
refugees living on their territories”: “Communication from the International Refugee
Organization to the Economic and Social Council,” UN Doc. E/1392, July 11, 1949, at 8.
49
“The stateless person in the country he is able to reach and which is ready to admit him
usually finds no encouragement to settle there. And yet, if he is not to remain beyond the
pale of society and to become an ‘international vagabond’ he must be integrated in the
economic life of the country and settle down”: United Nations, “Statelessness,” at 23.
50
“[T]he proposal to set up a high commissioner’s office would give that institution the
functions of coordination and liaison, and would leave to States the political responsibility

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 28 1 e v o l u t i o n o f t h e re f u g e e r i g h t s r eg i m e

that the appropriate level of interstate coordination of refugee protection could

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

which should properly be theirs. The time had come to impose that responsibility on States.
The principal States concerned in the refugee problem, in fact, were claiming it”: Statement
of Mr. Fenaux of Belgium, 9 UNESCOR (326th mtg.), at 618 (1949).
51
“The French and Belgian Governments considered that an international convention was
essential to settle the details of the measures which national authorities would have to put
into effect”: Statement of Mr. Rochefort of France, ibid.
52
“The 1933 Convention could be used as a basis for the new convention”: Statement of
Mr. Rundall of the United Kingdom, ibid. at 623.
53
“In effect, an appeal was made to all governments to accord the same treatment to all
refugees, in order to reduce the burden on contracting governments whose geographical
situation meant that the greater part of the responsibility fell on them”: Statement of
Mr. Desai of India, UN Doc. E/AC.7/SR.166, at 18 (1950). See also Statement of
Mr. Rochefort of France, 9 UNESCOR (326th mtg.), at 616 (1949): “Not the least of the
merits of the International Refugee Organization was that it had enlisted many distant
countries in the work of providing asylum for refugees, the burden of which had for long
been supported by the countries of Europe alone.”
54
Communication from the International Refugee Organization to the Economic and Social
Council, UN Doc. E/1392, July 11, 1949, at [35]–[37].

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 1.4 c o n v en t i o n rel at i n g t o t he st at us of re f uge es 29

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

1.4.1 Substantive Rights

The substantive rights set by the Convention have their origin in two main
sources. Most of the entitlements are derived from the 1933 Refugee
Convention, explicitly acknowledged to be the model for the 1951 agreement.
A key secondary source, however, was the 1948 Universal Declaration of
Human Rights.56 It influenced the redrafting of the content of several rights
found in the 1933 Refugee Convention, and accounted for six additions to the
earlier formulation of refugee rights.57 Several rights have no obvious prede-
cessor, thus representing net additions to the conceptualization of refugee
rights.58 Of these, the cryptically named right to “administrative assistance”
55
“Memorandum by the Secretary-General to the Ad Hoc Committee on Statelessness and
Related Problems,” UN Doc. E/AC.32/2, Jan. 3, 1950, at 6–7.
56
Universal Declaration of Human Rights, UNGA Res. 217A(III), adopted Dec. 10, 1948
(Universal Declaration).
57
These include the rights to non-discrimination, housing, naturalization, property, freedom
of internal movement, and religious freedom. As a general matter, there was an assumption
that rights declared in the Universal Declaration of Human Rights formed the clear
backdrop to the Refugee Convention. In the words of the British delegate, “a Convention
relating to refugees could not include an outline of all the articles of the Universal
Declaration of Human Rights; furthermore, by its universal character, the Declaration
applied to all human groups without exception and it was pointless to specify that its
provisions applied also to refugees”: Statement of Sir Leslie Brass of the United Kingdom,
UN Doc. E/AC.32/SR.11, Jan. 25, 1950, at 8. Yet it is equally clear that there was no appetite
on the part of all delegates to codify in binding form all of the rights recognized in the
Declaration. France, for example, was of the view that the Refugee Convention ought not to
render binding the full notion of freedom of opinion and expression codified in Art. 19 of
the Universal Declaration of Human Rights: Statement of Mr. Rain of France, ibid. at 9.
58
These include protection against penalization for illegal entry, exemption from exceptional
measures applied against co-nationals, and the right to transfer externally acquired assets to
a country of resettlement: Refugee Convention, at Arts. 31 (“refugees unlawfully in the
country of refuge”), 8 (“exemption from exceptional measures”), and 30 (“transfer of
assets”).

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 30 1 e v o l u t i o n o f t h e re f u g e e r i g h t s r eg i m e

is especially noteworthy, as it requires state parties to facilitate practical access

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

59
Refugee Convention, at Art. 25. See generally Chapter 4.10.
60
Refugee Convention, at Art. 42(1).
61
Socioeconomic rights are of course guaranteed only as an aspect of protection, not with
a view to achieving systemic economic reforms. As observed in the House of Lords, “[t]he
humanitarian object of the Refugee Convention is to secure a reasonable measure of
protection for those with a well-founded fear of persecution . . . [I]t is not to procure
a general levelling-up of living standards around the world, desirable though of course that
is”: Secretary of State for the Home Department v. AH (Sudan), [2007] UKHL 49 (UK HL,
Nov. 14, 2007), at [7], per Lord Bingham.
62
See Chapter 1.5.4 at notes 376–378. 63 See Chapter 1.1 at notes 6–7.

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 1.4 convention relating t o t he status of refugees 31

Finally, the Convention establishes rights of solution, intended to assist

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

1.4.2 Reservations
Refugee Convention, Art. 42 Reservations
1. At the time of signature, ratification or accession, any State
may make reservations to articles of the Convention other
than to articles 1, 3, 4, 16(1), 33, 36–46 inclusive.
2. Any State making a reservation in accordance with para-
graph 1 of this article may at any time withdraw the
reservation by a communication to that effect addressed
to the Secretary-General of the United Nations.

Refugee Protocol, Art. VII Reservations and Declarations

1. At the time of accession, any State may make reservations in
respect of article IV of the present Protocol and in respect of
the application in accordance with article 1 of the present
Protocol of any provisions of the Convention other than
those contained in articles 1, 3, 4, 16(1) and 33 thereof, provided
64
See generally Chapter 7.2.
65
Refugee Convention, at Art. 1(C). See generally Grahl-Madsen, Status of Refugees I, at
367–411; Hathaway and Foster, Refugee Status, at 476–494; and Chapter 7.1.
66
Refugee Convention, at Arts. 28 and 30, discussed at Chapters 6.6 and 7.3.
67
Refugee Convention, at Art. 34, discussed at Chapter 7.4.
68
Fornah v. Secretary of State for the Home Department, [2006] UKHL 46 (UK HL, Oct. 18,
2006), at [35], per Lord Hope. See also ibid., per Lord Brown at [121]: “[T]hose granted
refugee status enjoy a number of substantial rights beyond mere irremovability, for
example, rights to engage in gainful employment . . ., rights to welfare . . ., travel documents
enabling the refugee to travel abroad . . ., and the opportunity for expedited naturalization.”

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 32 1 e vo lution of the refugee rights regime

that in the case of a State Party to the Convention reservations

made under this article shall not extend to refugees in respect of
whom the Convention applies.
2. Reservations made by States Parties to the Convention in
accordance with article 42 thereof shall, unless withdrawn, be
applicable in relation to their obligations under the present
Protocol.

All substantive rights other than to non-discrimination, freedom of religion,

access to the courts, and protection against refoulement may be excluded or
modified by a state through reservation69 at the time of signature, ratification,
or accession to the Convention or Protocol.70 An evaluation of refugee rights in
any particular state therefore requires that account be taken of the terms of
participation consented to by the state in question.71
The ability to enter a reservation to most Convention rights was conceived by
the drafters as a means of inducing reluctant states to sign on. The hope was that
states initially disinclined to undertake protection obligations toward refugees
would be willing to do so if able to constrain the scope of their participation; with
the benefit of time and experience these states might then be persuaded to
withdraw their reservations.72 This is a strategy that has to a large extent proved

69
“‘Reservation’ means a unilateral statement, however phrased or named, made by
a State . . . when signing, ratifying, formally confirming, accepting, approving, or acceding
to a treaty, or by a State when making a notification of succession to a treaty, whereby the
State . . . purports to exclude or to modify the legal effect of certain provisions of the treaty
in their application to that State”: International Law Commission, “Guide to Practice on
Reservations to Treaties,” UN Doc. A/66/10/Add.1 (2011), at [1.1(1)].
70
The same rights are insulated from reservation under Art. VII(1) of the Protocol relating to the
Status of Refugees, 606 UNTS 8791 [UNTS 8791], done Jan. 31, 1967 (“Refugee Protocol”).
Interestingly, however, state parties to the Protocol – but not to the Convention – are allowed to
enter a reservation to the provision authorizing settlement of disputes regarding interpretation
or application of the Protocol by the International Court of Justice: Refugee Protocol, at Art.
VII(1). While in principle a cause for concern (since the Protocol regulates the treatment of most
modern refugees), the issue is moot in practical terms since no case involving the interpretation
or application of refugee law has ever been referred to the International Court of Justice.
71
See generally S. Blay and M. Tsamenyi, “Reservations and Declarations under the 1951
Convention and the 1967 Protocol relating to the Status of Refugees,” (1990) 2(4)
International Journal of Refugee Law 527.
72
“[H]e therefore appealed to representatives to seek the golden mean, and, if possible, by
precept and example, to encourage others to withdraw their reservations at a later stage. If
the Conference worked along those lines, he believed it might be possible to arrive at a just
and effective instrument”: Statement of the President, Mr. Larsen of Denmark, UN Doc. A/
CONF.2/SR.9, July 6, 1951, at 14. This approach is in line with the view of the International
Law Commission that “[s]tates . . . which have formulated one or more reservations to
a treaty should undertake a periodic review of such reservations and consider withdrawing
those which no longer serve their purpose”: International Law Commission, “Guide to
Practice on Reservations to Treaties,” UN Doc. A/66/10/Add.1 (2011), at [2.5.3(1)].

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 1.4 co n v e n t i o n r el at i n g to t h e s t a t u s o f r ef u g e e s 33

successful. For example, even the most controversial right – the right of refugees
to undertake wage-earning employment under Art. 17 – is now accepted without
qualification by more than 75 percent of state parties.73 Of those reserving, only
six states – Austria, Botswana, Burundi, Iran, Latvia, and Sierra Leone – have
entered what amounts to a complete reservation to the core right to work found
in Art. 17(1).74 Equally important, nine states – Australia, Brazil, Denmark,
Greece, Italy, Liechtenstein, Malta, Papua New Guinea, and Switzerland – have,
just as the drafters hoped, either withdrawn or reduced the scope of an initial
reservation to the right of refugees to undertake employment.75
Despite the strategic utility of granting states a broad right to reserve, there is of
course the risk that a state might exploit that flexibility in order to undermine the
foundational goals of the treaty. Such a tack is unlawful, since as the International
Law Commission has observed, “a reservation which is not prohibited by the treaty
may be formulated . . . only if it is not incompatible with the object and purpose of
the treaty.”76 It is thus of some concern that there has been no challenge to the
extraordinarily broad reservation entered by the Holy See, purporting to accept the
Convention only to the extent that it is “compatible in practice with the special
nature of the Vatican City State and without prejudice to the norms governing
access to and sojourn therein.”77 More optimistically, though, when in 1983
Guatemala attempted to enter a comparably far-reaching reservation – suggesting
it would respect the Refugee Convention only to the extent that its provisions did
not “contravene constitutional precepts in Guatemala”78 – six state parties formally
objected.79 Guatemala belatedly withdrew its reservation in 2007.80
73
Only 34 of 148 state parties – less than 25 percent of the total number – have entered
a direct or indirect reservation of any kind to Art. 17: https://treaties.un.org, accessed Dec.
21, 2020.
74
https://treaties.un.org, accessed Dec. 21, 2020. This means that more than 95 percent of
state parties have assumed some duty to ensure the right of refugees to undertake employ-
ment. The most common reservation reduces or qualifies the “most-favored foreigner”
level of attachment for this right (Belgium, Brazil, Cabo Verde, Denmark, Finland,
Luxembourg, Netherlands, Norway, Portugal, Spain, and Uganda): ibid. Other states
entering a partial reservation include Angola, Bahamas, Chile, Ethiopia, France,
Honduras, Ireland, Jamaica, Madagascar, Malawi, Mexico, Mozambique, Papua New
Guinea, Sweden, United Kingdom, Zambia, and Zimbabwe: ibid.
75
https://treaties.un.org, accessed Dec. 21, 2020.
76
International Law Commission, “Report on the Work of its Sixty-Third Session,” UN Doc.
A/66/10/Add.1, at 347 (2011), at Guideline 3.1.3.
77
https://treaties.un.org, accessed Dec. 21, 2020.
78
Ibid. As observed by the US representative during the drafting of the Refugee Convention,
“the mere fact that the provisions of a convention required a change in the existing laws of
any country was not a valid argument against them. If all national laws were to remain
unchanged, why should there be a convention?”: Statement of Mr. Henkin of the United
States, UN Doc. E/AC.32/SR.37, Aug. 16, 1950, at 15.
79
The objecting parties were Belgium, France, Germany, Italy, Luxembourg, and the
Netherlands: https://treaties.un.org, accessed Dec. 21, 2020.
80
Ibid.

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 34 1 e volution of the refugee rights regime

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

81
A. Pellet, “Article 42 of the 1951 Convention/Article VII of the 1967 Protocol,” in
A. Zimmermann ed., The 1951 Convention relating to the Status of Refugees and its 1967
Protocol (2011) 1617 (Pellet, “Article 42”), at 1634, citing to the advisory opinion of the
International Court of Justice in Reservations to the Genocide Convention, [1951] ICJ
Rep 24.
82
Pellet, “Article 42,” at 1634.
83
Over the decade 2010–2019 there was only one accession to the refugee regime, that being
Nauru in 2011: www.unhcr.org/protect/PROTECTION/3b73b0d63.pdf, accessed Jan. 15,
2020. Only five withdrawals of reservations occurred over the same timeframe, including
those of Honduras (2013), Korea (2009), Liechtenstein (2009), Mexico (2014), and Papua
New Guinea (2013): https://treaties.un.org, accessed Dec. 21, 2020.
84
www.unhcr.org/protect/PROTECTION/3b73b0d63.pdf, accessed Jan. 15, 2020; UNHCR,
“Global Trends: Forced Displacement in 2018,” at Annex, Table 1. If Turkey – bound only
by the Convention and hence with no obligation to protect modern refugees – is included,
the number rises to more than 8.6 million refugees (43 percent of the total number of
refugees in the world) who are living in a country not bound by international refugee law:
ibid.
85
States attending the High Level Plenary Meeting on Addressing Large Movements of
Refugees and Migrants “note[d] with satisfaction that 148 States are now parties to one
or both instruments. We encourage States not parties to consider acceding to those
instruments and States parties with reservations to give consideration to withdrawing
them”: “New York Declaration for Refugees and Migrants,” UN Doc. A/71/L.1, Sept. 13,
2016, at [65].
86
While it might be argued that minimalist accession is at odds with the overarching duty to
refrain from reservations that are incompatible with the object and purpose of the treaty
(see note 76), on balance this position is not sound. Because the non-reservable substantive
provisions (see text at note 69) suffice to bring refugees under the jurisdiction of a state
party and hence to require respect for cognate rights under other treaties and general
international law (see Chapter 1.5.4), they align with – even if only imperfectly ensuring –
the object and purpose of the Refugee Convention and Protocol.

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 1.4 co n v e n t i o n r el at i n g to t h e s t a t u s o f r ef u g e e s 35

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

1.4.3 Temporal and Geographical Restrictions

Refugee Convention, Art. 1 Definition of the Term “Refugee”

A. For the purposes of the present Convention, the term “refugee”
shall apply to any person who: . . . (2) [a]s a result of events
occurring before 1 January 1951 and owing to well-founded
fear of being persecuted for reasons of race, religion, nationality,
membership of a particular social group or political opinion, is
outside the country of his nationality and is unable, or owing
to such fear, is unwilling to avail himself of the protection of
that country; or who, not having a nationality and being
outside the country of his former habitual residence as
a result of such events, is unable or, owing to such fear, is
unwilling to return to it . . .
B. (1) For the purposes of this Convention, the words “events
occurring before 1 January 1951” in article 1, section A, shall
be understood to mean either
(a) “events occurring in Europe before 1 January 1951”; or
(b) “events occurring in Europe or elsewhere before
1 January 1951”;
and each Contracting State shall make a declaration at the time of
signature, ratification or accession, specifying which of these
meanings it applies for the purpose of its obligations under this
Convention.
In addition to constraining their duties by means of reservation, the obliga-
tions of state parties to the 1951 Refugee Convention may also be limited on
temporal or geographical grounds.
First, state parties to the 1951 Refugee Convention are bound only to
protect refugees whose fear of being persecuted resulted from events that
occurred before January 1, 1951. The 1967 Protocol relating to the Status of
Refugees88 prospectively abolished this temporal limitation for the coun-
tries that accede to it – which nearly all have done. There are, however two
87
See J. Hathaway, “The Global Cop-Out on Refugees,” (2018) 30(4) International Journal of
Refugee Law 591; and generally J. Hathaway ed., Reconceiving International Refugee Law (1997).
88
Protocol relating to the Status of Refugees, 606 UNTS 8791 [UNTS 8791], done Jan. 31,
1967, entered into force Oct. 4, 1967 (Refugee Protocol).

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 36 1 e v o l u t i o n o f t h e re f u g e e r i g h t s r eg i m e

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

89
UNHCR has observed that “Madagascar has not acceded to the 1967 Protocol relating to
the Status of Refugees neither did it ratify the 1969 OAU Convention governing the specific
aspects of refugee problems in Africa (signed on 10 September 1969), thereby making the
legal regime that governs the refugee protection in the country blurred”: UNHCR,
“Submission by the United Nations High Commissioner for Refugees (UNHCR) for the
Office of the High Commissioner for Human Rights’ Compilation Report: Universal
Periodic Review: Madagascar” (March 2014), at 2. Making the situation murkier still,
Madagascar only acceded to the 1951 Convention with the geographical reservation on
December 18, 1967, more than two months after the entry into force of the Refugee
Protocol. While accession to the Convention without accession to the Protocol is not
formally barred, no other country has taken this tack.
90
“The present Protocol shall be applied by the States Parties hereto without any geographic
limitation, save that existing declarations made by States already Parties to the Convention
in accordance with article 1B(1)(a) of the Convention, shall, unless extended under article
1B(2) thereof, apply also under the present Protocol [emphasis added]”: Refugee Protocol,
at Art. I(3).
91
“[A]rticle 26 does not merely duplicate the guarantee already provided for in article 2 but
provides in itself an autonomous right. It prohibits discrimination in law or in fact in any
field regulated and protected by public authorities”: UN Human Rights Committee,

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 1.4 c onvention r elating to the status of refugees 37

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

1.4.4 Duties of Refugees

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

“General Comment No. 18: Non-discrimination” (1989), at [12]. See generally Chapter
1.5.5 at note 453 ff.
92
“Thus, the general rule is that each one of the rights of the Covenant must be guaranteed
without discrimination between citizens and aliens . . . The Covenant gives aliens all the
protection regarding rights guaranteed therein, and its requirements should be observed by
States parties in their legislation and in practice as appropriate”: UN Human Rights
Committee, “General Comment No. 15: The Position of Aliens under the Covenant”
(1986), at [1], [4].
93
Civil and Political Covenant, at Art. 26. The Human Rights Committee has cautioned that
“[a]lthough the Committee had found in one case . . . that an international agreement that
confers preferential treatment to nationals of a State party to that agreement might
constitute an objective and reasonable ground for differentiation, no general rule can be
drawn therefrom to the effect that such an agreement in itself constitutes a sufficient
ground with regard to the requirements of article 26 of the Covenant. Rather, it is necessary
to judge every case on its own facts”: Karakurt v. Austria, HCR Comm. No. 965/2000, UN
Doc. CCPR/C/74/D/965/2000, decided Apr. 4, 2002, at [8.4].
94
Civil and Political Covenant, at Art. 26. For example, a temporal distinction creating
a permanent privilege was found not to be objective and reasonable in Haraldsson
v. Iceland, HRC Comm. No. 1306/2004, UN Doc. CCPR/C/91/D/1306/24, decided Dec.
14, 2007, at [10.4].
95
See Chapter 1.5.5 at note 468.
96
As the Human Rights Committee has observed, “[t]he Covenant does not recognize the
right of aliens to enter or reside in the territory of a State party. It is in principle a matter for
the State to decide who it will admit to its territory. However, in certain circumstances an
alien may enjoy the protection of the Covenant even in relation to entry or residence, for
example, when considerations of non-discrimination . . . arise”: UN Human Rights
Committee, “General Comment No. 15: The Position of Aliens under the Covenant”
(1986), at [5]. While it might be argued that the temporal and geographical limitation
provisions of the Refugee Convention should govern under the lex specialis principle, the
jus cogens character of the duty of non-discrimination would require that it be given
priority in the event of a normative conflict. As found by the Inter-American Court of
Human Rights, “the principle of equality before the law, equal protection before the law
and non-discrimination belongs to jus cogens, because the whole legal structure of national
and international public order rests on it and it is a fundamental principle that permeates
all laws”: Juridical Condition and Rights of Undocumented Migrants (Advisory Opinion
OC-18/03) (IACtHR, Sept. 17, 2003), at [10].

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 38 1 e volution of the refugee rights regime

treat refugees less favorably than other resident non-citizens. Most important,
while refugees who breach valid laws of the host country are clearly subject to
the usual range of penalties, states are prohibited from invoking the failure of
refugees to comply with generally applicable duties as grounds for the with-
drawal of rights established under the Convention.
Refugee Convention, Art. 2 General Obligations
Every refugee has duties to the country in which he finds himself,
which require in particular that he conform to its laws and regula-
tions as well as to measures taken for the maintenance of public
order.
The original draft of the Refugee Convention contained a chapter that imposed
three kinds of obligation on refugees: to obey laws, pay taxes, and perform military
and other kinds of civic service.97 The duty to respect the law was simply “a
reminder of the essential duties common to nationals as well as to foreigners in
general.”98 Liability to taxation and military conscription on the same terms as
citizens was viewed as a fair contribution to expect from a refugee “residing in the
country of asylum, enjoying a satisfactory status, and earning his living there.”99
Just as refugees should benefit from most of the advantages that accrue to nationals,
so too should they assume reasonable duties toward the state that afforded them
protection.
There were two quite different reactions to the proposal to codify the duties
owed by refugees to an asylum state. A number of governments felt that such
a provision was superfluous in view of the general duty of foreigners to obey the
laws of their country of residence.100 In any event, as the American representative
argued, “refugees themselves would not be signing the Convention and would not
be asked to do any more than anyone else in the country in which they took
refuge.”101 In legal terms, “[i]t was impossible to write into a convention an
obligation resting on persons who were not parties thereto.”102 It was therefore
97
United Nations, “Memorandum by the Secretary-General to the Ad Hoc Committee on
Statelessness and Related Problems,” UN Doc. E/AC.32/2, Jan. 3, 1950, at 31–33. Chapter
IV was entitled “Responsibilities of Refugees and Obligations Incumbent Upon Them.”
98 99
Ibid. at 31. Ibid. at 32.
100
“[T]he article was unnecessary, as it contained nothing which was not obvious. Indeed, it was
generally known that the laws of a country applied not only to its nationals but also to the
foreigners residing in its territory, whether they were refugees or not”: Statement of
Mr. Larsen of Denmark, UN Doc. E/AC.32/SR.11, Jan. 25, 1950, at 10. See also Statement
of Mr. Guerreiro of Brazil, ibid., and Statement of Mr. Kural of Turkey, ibid. at 11. “Since an
alien is subject to the territorial supremacy of the local state, it may apply its laws to aliens in
its territory, and they must comply with and respect those laws”: R. Jennings and A. Watts
eds., Oppenheim’s International Law (1992), at 905. See also Chapter 1.1 at note 2.
101
Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.34, Aug. 14, 1950, at 7.
102
Statement of Mr. Herment of Belgium, UN Doc. A/CONF.2/SR.3, July 3, 1951, at 22. This
point was not entirely accurate, since individuals can be subject to obligations set by an
international treaty: Jurisdiction of the Courts of Danzig, [1928] PCIJ Rep, Series B, No. 15.

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 1.4 c onvention r elating to the status of refugees 39

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

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

Largely out of respect for the significant refugee protection contributions made
by France,105 it was agreed to include a specific reference in the Convention to
the duties of refugees. The compromise was that while refugees would not be
subject to any particularized duties,106 the Convention would make clear that
This point was clearly made by Justice Kirby, who cited Art. 2 in support of the view that
while refugees “are not parties to the Convention; . . . they are certainly the subjects of the
Convention provisions”: NAGV and NAGW of 2002, [2005] HCA 6 (Aus. HC, Mar. 2,
2005), at [68], per Kirby J.
103
Statement of Mr. Rochefort of France, UN Doc. E/AC.32/SR.34, Aug. 14, 1950, at 4. See
also Statements of Mr. Perez Perozo of Venezuela and Mr. Herment of Belgium, ibid. at 5.
A similarly exigent understanding of the duties owed by refugees is clear in remarks made
by Mr. Robinson of Israel, UN Doc. E/AC.32/SR.12, Jan. 25, 1950, at 7: “[A] refugee was
a foreigner sui generis to whom the draft convention accorded special status and in certain
cases even equality with the nationals of the recipient country. The refugee thus obtained
certain privileges and it was only fair to balance those by conferring upon him greater
responsibilities [emphasis added].”
104
Statement of Mr. Rochefort of France, UN Doc. E/AC.32/SR.34, Aug. 14, 1950, at 7–8.
105
See e.g. Statements of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.23, Feb. 3,
1950, at 8 and UN Doc. E/AC.32/SR.34, Aug. 14, 1950, at 6–7; and Statement of
Mr. Robinson of Israel, UN Doc. A/CONF.2/SR.4, July 3, 1951, at 8.
106
It does not follow, however, that requiring refugees to cooperate with the process of
refugee status assessment, e.g. by submitting available and relevant evidence as soon as
practicable (see e.g. Council Directive on common procedures for granting and withdraw-
ing international protection (recast), Doc. 2013/32/EU, June 26, 2013, at Art. 13) is at odds
with Art. 2 (but see H. Lambert, “Article 2,” in A. Zimmermann ed., The 1951 Convention
relating to the Status of Refugees and its 1967 Protocol (2011) 625 (Lambert, “Article 2”), at
637–638). So long as such duties are conceived and implemented in a manner consistent
with both refugee law (e.g. Refugee Convention Art. 31) and international human rights

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 40 1 e volution of the r efug ee rights regime

refugee status may not be invoked to avoid whatever general responsibilities

are imposed upon other residents of the host country.107 The notion of
a specific enumeration of refugee duties was dropped.108
The unwillingness of the drafters to subject refugees to special duties
can most clearly be seen in the debate about regulation of the political
activities of refugees. It was argued that refugees tend to be more politic-
ally active than other immigrants,109 and that their militancy could
threaten the security interests of an asylum state.110 The French govern-
ment therefore proposed to allow governments “to restrict or prohibit
political activity on the part of refugees.”111 Strong exception was taken to
this proposal, both on grounds of general principle and because it sug-
gested a right to treat refugees less favorably than other resident

law (e.g. Civil and Political Covenant Art. 14), they are no more than a refugee-specific
application of the general responsibility of all persons under a state’s jurisdiction to
cooperate with authorities seeking to enforce valid laws. Indeed, it is generally agreed
that the duty to establish the facts relevant to assessment of refugee status is shared
between the refugee applicant and the state: UNHCR, Handbook on Procedures and
Criteria for Determining Refugee Status (1979, re-issued 1992 and 2019) (UNHCR,
Handbook), at [195]–[205].
107
The essence of the French plea could be satisfied by the inclusion of “a moral per contra”
falling short of an enforceable legal duty: Statement of Mr. Rochefort of France, UN Doc.
E/AC.32/SR.34, Aug. 14, 1950, at 4.
108
“[T]he Committee had altered the structure of the draft convention, which was meant to
cover the liabilities as well as the rights of refugees”: Statement of Mr. Weis of the
International Refugee Organization, UN Doc. E/AC.32/SR.12, Jan. 25, 1950, at 10. Under
the agreement negotiated, the denial of refugee protection for breach of a host country’s
laws would only be possible if the very high standard of Art. 33(2) were met: G. Ben-Nun,
“The British-Jewish Roots of Non-refoulement and its True Meaning for the Drafters of the
1951 Convention,” (2014) 28(1) International Journal of Refugee Law 93, at 107–108.
109
“It was not too difficult to ask a foreign national to leave the country but it was often
virtually impossible to expel a refugee. Different measures had to be taken for the two
groups. Moreover, it had been the experience of some States that foreign nationals rarely
engaged in political activity, while refugees frequently did so”: Statement of Mr. Cuvelier
of Belgium, UN Doc. E/AC.32/SR.23, Feb. 3, 1950, at 10–11.
110
A restriction of the political rights of refugees “should not be regarded as a discriminatory
measure against refugees but rather as a security measure. While it was embarrassing to
favour the withdrawal of rights from a group of people, it would be better to do that than to
expose that group of people – refugees – to the more drastic alternative of deportation”:
Statement of Mr. Devinat of France, ibid. at 9. See also Statement of Mr. Larsen of
Denmark, UN Doc. E/AC.32/SR.10, Jan. 24, 1950, at 10: “[R]efugees who had found
freedom and security in another country should not be permitted to engage in political
activity which might endanger that country.”
111
France, “Proposal for a Draft Convention,” UN Doc. E/AC.32/L.3, Jan. 17, 1950, at Art. 8,
General Obligations. See also Statement of Mr. Kural of Turkey, UN Doc. E/AC.32/SR.23,
Feb. 3, 1950, at 11: “[S]ince the draft convention was to be a definitive document governing
the status of refugees, it might conveniently be invoked by the latter in order to sanction
undesirable political activity.”

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 1.4 co n v en t i o n r el at i n g to th e st atus of r ef ug ee s 41

foreigners.112 The result was agreement that while “laws prohibiting or

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

112
“[H]e regarded it as undesirable to include in a United Nations document a clause
prohibiting political activities – a very broad and vague concept indeed . . . In the absence
of a specific clause on the subject, [governments] would still have the right to restrict
political activities of refugees as of any other foreigners. On the other hand, the inclusion
of the clause might imply international sanction of such a restriction. The possibility of
such an interpretation was undesirable”: Statement of Mr. Henkin of the United States,
UN Doc. E/AC.32/SR.23, Feb. 3, 1950, at 8. See also Statements of Mr. Chance of Canada
and Mr. Larsen of Denmark, ibid. at 9.
113
Statement of Mr. Perez Perozo of Venezuela, ibid. at 11. See also Statements by each of the
representatives of the United States, Canada, Denmark, and China affirming a state’s sover-
eign authority to limit the political rights of foreigners: ibid. at 8–9. This view is, of course,
consonant with the traditional view under international aliens law, discussed in Chapter 1.1 at
note 6. In view of the general applicability of Art. 19 of the subsequently enacted International
Covenant on Civil and Political Rights, 999 UNTS 172 (UNTS 14668), adopted Dec. 16, 1966,
entered into force Mar. 23, 1976 (Civil and Political Covenant), however, it is questionable
whether governments continue to enjoy a comparable discretion to limit the expression of
political opinions by non-citizens. As observed by the Human Rights Committee, “the general
rule is that each one of the rights must be guaranteed without discrimination between citizens
and aliens. Aliens receive the benefit of the general requirement of non-discrimination in
respect of the rights guaranteed in the Covenant, as provided for in article 2 thereof. This
guarantee applies to aliens and citizens alike”: UN Human Rights Committee, “General
Comment No. 15: The Position of Aliens under the Covenant” (1986), UN Doc. HRI/
GEN/1/Rev.7, May 12, 2004, at 140, [2]. See generally Chapter 1.5.5. Nor does the more
recent general comment on freedom of expression allow for differential treatment of non-
citizens in this regard: UN Human Rights Committee, “General Comment No. 34: Article 19:
Freedoms of Opinion and Expression,” UN Doc. CCPR/C/GC/34, Sept. 12, 2011.
114
Robinson’s comment that “Article 2 must be construed to mean that refugees not only must
conform with the laws and general regulations of the country of their residence but are also
subject to whatever curbs their reception country may consider necessary to impose on their
political activity in the interest of the country’s ‘public order’ [emphasis added]” is therefore
not an accurate summary of the drafting history. See N. Robinson, Convention relating to the
Status of Refugees: Its History, Contents and Interpretation (1953) (Robinson, History), at 72;
and P. Weis, The Refugee Convention, 1951: The Travaux Préparatoires Analysed with
a Commentary by Dr. Paul Weis (posthumously pub’d., 1995) (Weis, Travaux), at 38. To be
valid under Art. 2, curbs on political activity cannot be directed solely at refugees or a subset of
the refugee population, but must apply generally, for example to aliens or all residents of the
asylum state. The duty of non-discrimination must, of course, also be respected in the
designation of the group to be denied political rights (see generally Chapters 1.5.5 and 3.4).
The interpretation of the duty to conform to “public order” measures, upon which Robinson
and Weis base their arguments, is discussed at note 129.
115
Lambert cites Ghana, Kenya, Sierra Leone, South Africa, and Tanzania as examples of
countries that have legislation codifying the duties of refugees per se: Lambert, “Article 2,”

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 42 1 e v o l u t i o n o f t h e re f u g e e r i g h t s r e g i m e

With the elimination of a specific chapter on the duties of refugees, the

question of the liability of refugees to taxation was transferred to the “admin-
istrative measures” section of the Convention.116 The reference to a duty of
refugees to perform military or other service was deleted altogether, leaving
this issue to the discretion of particular states.117 This left only a general
obligation to respect the laws and regulations of the host state, included in
the draft Convention as a symbolic recognition of the basic responsibility of
refugees:

[W]hen article 2 had been drafted, many representatives had felt that there
was no need for it. It had been maintained that the laws of a given country
obviously applied to refugees and aliens as well as to nationals of the country.
Article 2 had been introduced for psychological reasons, and to maintain
a balance, because the draft Convention tended to overemphasize the rights
and privileges of refugees. It was psychologically advantageous for a refugee,
on consulting the Convention, to note his obligations towards his host
country.118

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

at 637. This may well be an echo of the unusual provision in African regional refugee law that
takes a more aggressive approach to the duties of refugees: see Chapter 1.5.3 at note 269 ff.
116
See Chapter 4.5.2.
117
The vote to reject this provision was 4–3 (4 abstentions): UN Doc. A/AC.32/SR.12, Jan. 25,
1950, at 9. “The Committee was not, however, the appropriate body to legislate on the very
difficult question of military service. No provision regarding that question should be
included in the convention; it should be solved by the operation of national legislation
within the general framework of international law”: Statement of Mr. Larsen of Denmark,
ibid. at 8.
118
Statement of Mr. Robinson of Israel, UN Doc. A/CONF.2/SR.3, July 3, 1951, at 21.
119
It is nonetheless not quite right to suggest that Art. 2 “was only intended to provide
a moral obligation on refugees” (Lambert, “Article 2,” at 642). Art. 2 should instead be
understood as a form of residual clause, confirming the clear legal duty of refugees to abide
by domestic laws and regulations of general application excepting only to the extent these
are inconsistent with the rights guaranteed by the Refugee Convention.
120
See generally Chapter 4.7.

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 1.4 c onvention r elating to the status of refugees 43

On the other hand, because refugees are exempt from penalization for illegal
entry only when in flight from persecution,121 the House of Lords correctly
determined that

Contracting States need only overlook the initial offence of entering and
being present illegally. After they arrive in a safe country, the refugees are
to present themselves to the authorities who must treat them in accord-
ance with the Convention. In that situation the refugees have no justifica-
tion for committing further offences to escape persecution and are bound
by the criminal law, just like anyone else in the country concerned. That is
made clear by Article 2.122

Similarly, while governments are free to impose conditions of admission on

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

121
See Chapter 4.2.1.
122
R v. Asfaw, [2008] UKHL 31 (UK HL, May 21, 2008), at [95], per Lord Rodger. See also the
views of Lord Mance at [143], affirming the same understanding of Art. 2.
123
A proposal that would have required refugees, for example, to remain in the employment
found for them by the host government was advanced by Australia: UN Doc. A/CONF.2/
10. “The Australian Government was put to considerable expense in selecting migrants, in
contributing to the cost of their journey to Australia, in arranging for their reception, and
generally in helping them to adapt to their new place in the community. It had therefore
been regarded as reasonable that migrants should recognize their obligations to their new
country, and continue to do work for which they were most needed for a limited period”:
Statement of Mr. Shaw of Australia, UN Doc. A/CONF.2/SR.3, July 3, 1951, at 20. The
United Nations High Commissioner replied that the Australian objective could best be
met by enforcing the obligations against the refugee on the basis of domestic regulation or
contract, rather than by a specific duty in the Refugee Convention itself: Statement of
Mr. van Heuven Goedhart, UNHCR, UN Doc. A/CONF.2/SR.4, July 3, 1951, at 4. More
specifically, the British delegate observed that “[h]e believed that the Australian delegation
was not so much concerned with the failure of a refugee to comply with conditions, as with
the need for ensuring that the specific conditions imposed on entry to Australia con-
formed with the provisions of the draft Convention . . . [I]t seemed to him that the
question of whether the Australian practice was permissible must be considered in the
light of other articles of the draft Convention which imposed certain conditions upon
States. He would therefore suggest that the Australian representative should withdraw his
amendment [to Art. 2]”: Statement of Mr. Hoare of the United Kingdom, ibid. at 6. The
Australian amendment to Art. 2 was subsequently withdrawn: ibid. at 7.
124
“Every refugee admitted under 8 U.S.C. § 1157 whose refugee status has not been
terminated is required, one year after entry into the United States, to submit an application
to adjust status and become an LPR, i.e., to be admitted for permanent residence [citing 8
C.F.R. § 209.1]”: Vasiliy Romanishyn v. Attorney General, 455 F. 3d 175 (US CA3, July 20,
2006), at [5]. The US Board of Immigration Appeals has applied this rule also to persons
who arrive directly in the United States to seek protection (“asylees” in US parlance), an

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 44 1 e volution of the r efugee rights regime

reasons applicable to permanent residents in general125 but not allowed by

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

interpretation that one circuit court has recently questioned: Nadeem Ali v. Attorney
General, 814 F. 3d 306 (US CA5, Feb. 22, 2016).
125
“A refugee whose refugee status was not terminated pursuant to 8 U.S.C. § 1157(c)(4), and
who has not yet been adjudicated inadmissible by an immigration officer in the course of
applying for [lawful permanent resident] status pursuant to 8 C.F.R. § 209.1, may not be
placed in removal proceedings, even if he has engaged in conduct that would subject
a non-refugee to removal . . . To that limited extent, refugee status is a protected status”:
Vasiliy Romanishyn v. Attorney General, 455 F. 3d 175 (US CA3, July 20, 2006), at [6].
126
Under the Refugee Convention, removal for a crime committed inside the asylum state is
only lawful if the requirements of Art. 33(2) are satisfied, namely conviction by a final
judgment of a “particularly serious” crime and the making of a determination that as
a result thereof the refugee “constitutes a danger to the community of that country”: see
generally Chapter 4.1.4.
127
In a prominent case considered by both the Court of Appeals for the 3rd Circuit and the
US Board of Immigration Appeals, a refugee was ordered deported from the United States
under this rule for having committed retail theft offenses: Smriko v. Attorney General, 387
F. 3d 279 (US CA3, Oct. 26, 2004), In re Sejid Smirko, 23 I&N Dec. 836 (US BIA, Nov. 10,
2005). Despite the reservations earlier expressed by the Court of Appeals, the Board of
Immigration Appeals determined “that an alien who has been admitted as a refugee and
has adjusted his or her status to that of a lawful permanent resident may be placed in
removal proceedings for acts or conduct amounting to grounds for removal under section
237(a) of the Act. Although some vestiges of refugee status are afforded by regulation to
refugees who have been admitted as lawful permanent residents, termination of refugee
status is not a precondition to the initiation of removal proceedings against refugees who
have adjusted their status”: ibid.
128
“Once a person’s status as a refugee has been determined, it is maintained unless he comes
within the terms of one of the cessation clauses”: UNHCR, Handbook, at [112].
129
UN Doc. E/AC.32/L.32, Feb. 9, 1950, at 3.
130
The term “public order” was selected to convey the meaning of the civil law concept of
“ordre public”: Robinson, History, at 72; Weis, Travaux, at 38.

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 1.4 c onvention r elating to the status of refugees 45

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

131
UN Doc. E/1850, Aug. 25, 1950, at 15. This language is identical to that included in the
Convention as finally adopted.
132
It is doubtful, however, that “public order” encompasses all measures viewed as necessary
in the interest of public morality. The Egyptian delegation proposed a specific provision to
this effect. “In any case, whether the Belgian amendment was adopted or not, the Egyptian
delegation considered it necessary to add to the end of article 2 the words ‘and of morality,’
for morality was inseparable from public order”: Statement of Mr. Mostafa of Egypt, UN
Doc. A/CONF.2/SR.3, July 3, 1951, at 23. This suggestion attracted no interest, and was
not proceeded with. But see Weis, Travaux, at 38: “Although this is not explicitly stated,
refugees may be expected to behave in such a manner, for example, in their habits and
dress, as not to create offence in the population of the country in which they find
themselves.”
133
Ordre public is a “highly dangerous civil law concept . . . [which] covers at least as much
ground as public policy in English-American law and perhaps much more”: J. Humphrey,
“Political and Related Rights,” in T. Meron ed., Human Rights in International Law: Legal
and Policy Issues 171 (1984) (Meron, Human Rights in International Law), at 185. The
contentious nature of the notion of ordre public is discussed e.g. in Chapter 4.7 at note
2376; in Chapter 5.1 at note 225; and in Chapter 6.5 at note 947.
134
W. Schabas, UN International Covenant on Civil and Political Rights: Nowak’s CCPR
Commentary (2019) (Schabas, Nowak’s CCPR Commentary), at 319. Schabas makes
specific reference to an attempt by South Africa to justify apartheid-era restrictions as
necessary to its own particular ordre public.
135
“Since ordre public may otherwise lead to a complete undermining of freedom of expres-
sion and information – or to a reversal of rule and exception – particularly strict require-
ments must be placed on the necessity (proportionality) of a given statutory restriction.
Furthermore, the minimum requirements flowing from a common international standard
for this human right, which is so essential for the maintenance of democracy, may not be
set too low”: Schabas, Nowak’s CCPR Commentary, at 571.
136
UNHCR, “Ghana: Deportation to Liberia,” Mar. 25, 2008, www.unhcr.org/en-us/news/
briefing/2008/3/47e8f5722/ghana-deportation-liberia.html, accessed Jan. 15, 2020.
137
“The right of peaceful assembly shall be recognized. No restrictions may be placed on the
exercise of this right other than those imposed in conformity with the law and which are

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 46 1 e volution of the r efugee rights regime

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

This proposal met with serious disapproval. The representative of Israel

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

The British delegate agreed that “[t]he Belgian amendment would confer on
States full power to abolish refugee status for any infractions of the laws of the
country concerned, which . . . would, in fact, nullify all the rights conferred by
the Convention.”141
In an attempt to preserve the essence of the Belgian initiative, France
suggested that refugee rights should be forfeited only consequent to a breach
necessary in a democratic society”: Civil and Political Covenant, at Art. 21. A protected
assembly is an intentional and temporary gathering of several persons for a specific
purpose: Schabas, Nowak’s CCPR Commentary, at 595.
138
UN Doc. A/CONF.2/10. The Belgian delegate insisted that his amendment raised no issue
of substance, but was instead “mainly a question of form”: Statement of Mr. Herment of
Belgium, UN Doc. A/CONF.2/SR.3, July 3, 1951, at 18. Later, however, he conceded that
“[h]is amendment would permit Contracting States to withdraw the benefit of the provi-
sions of the Convention from refugees contravening the laws and regulations of the
receiving country, or failing to fulfil their duties towards that country or guilty of
disturbing public order”: ibid. at 22.
139
Statement of Mr. Robinson of Israel, UN Doc. A/CONF.2/SR.3, July 3, 1951, at 21.
140
Ibid.
141
Statement of Mr. Hoare of the United Kingdom, ibid. at 22. See also Statement of
Mr. Chance of Canada, ibid. at 23: “[T]he inclusion of [the] clause might frustrate the
purposes of the Convention”; and Statement of Baron van Boetzelaer of the Netherlands,
ibid. at 24.

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 1.4 c onvention relating t o the status of refugees 47

of the most serious duties owed to a host state, and on the basis of a fair
procedure:

Any refugee guilty of grave dereliction of duty and who constitutes

a danger to the internal or external security of the receiving country
may, by appropriate procedure assuring maximum safeguards for the
person concerned, be declared to have forfeited the rights pertaining to
the status of refugees, as defined in this Convention.142

As the President of the Conference observed, this more carefully framed

amendment allowed the delegates to address the fundamental question of
“whether a refugee who failed to fulfil certain conditions should forfeit the
rights proclaimed in the draft Convention, even if his country of refuge did not
expel him.”143 The proponents of the French amendment argued that this
approach to Art. 2 was actually of benefit to refugees, since it would allow a host
state to protect its vital interests without resorting to the more extreme
alternatives of either withdrawing refugee status or expulsion.144 Refugees
would be deprived of the special benefits of the Refugee Convention, but
would be subjected to no particular disabilities. Most important, the incorpor-
ation of a forfeiture provision in Art. 2 was said to be an important source of
protection for the majority of refugees who might otherwise be stigmatized by
the actions of a troublesome minority:

It was actually a matter of fundamental interest to refugees generally that

the measures advocated by the French delegation should be taken against
such refugees as carried on activities constituting a danger to the security
of the countries receiving them. If certain disturbances provoked by
organized bands were allowed to increase in France, the final outcome
142
UN Doc. A/CONF.2/18. “[T]he word ‘duty’ in the French amendment referred to the
duties mentioned in the first line of article 2 itself, which were incumbent on the refugee as
a resident in the receiving country . . . [T]he concept of ‘receiving country’ . . . covered . . .
both the ‘receiving country’ and what was meant by the ‘country of selective immigration.’
With regard to the procedure to be adopted in respect of the forfeiture by the refugee of the
rights pertaining to his status, it should be noted that the measures in question related to
extremely serious – and, incidentally, rare – cases, and came within the category of
counter-espionage operations. No country could possibly be expected to expatiate in an
international forum on the measures which it proposed to adopt in that connexion.
‘Forfeiture’ of his rights by the refugee would transfer him from the jurisdiction of the
international convention to that of the legislation currently in force in the countries
concerned”: Statement of Mr. Rochefort of France, UN Doc. A/CONF.2/SR.4, July 3,
1951, at 9.
143
Statement of the President, Mr. Larsen, UN Doc. A/CONF.2/SR.4, July 3, 1951, at 5. See
also Statement of Mr. Hoare of the United Kingdom, ibid. at 6.
144
“[T]he person subjected to [the measures contemplated] would preserve his status as [a]
refugee; the pronouncement of his forfeiture of rights would in no way withdraw that
status from him, but would simply have the effect of depriving him of all or some of the
benefits granted by the Convention”: Statement of Mr. Herment of Belgium, ibid. at 10.

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 48 1 e volution of the r efugee rights regime

would be a wave of xenophobia, and public opinion would demand not

merely the application of the measures laid down in the French proposal,
but the expulsion of a great many innocent refugees.145

On the other side of the argument, UNHCR and the United Kingdom pre-
ferred that no restrictions on refugee rights be possible. Unless the risk posed
was serious enough to meet the requirements for exclusion from refugee
status146 or expulsion from the country,147 the host country should continue
to respect all rights guaranteed by the Convention. It would be inappropriate to
include in the Convention “a provision by virtue of which a State would be able
to treat a refugee as a pariah.”148 This view prevailed, and the French amend-
ment was withdrawn.149
The legal position is therefore clear: Art. 2 does not authorize the with-
drawal of refugee rights for even the most serious breaches of a refugee’s duty
to the host state.150 Because rights under the Convention are guaranteed to all
who are in fact refugees, refugees must be dealt with in the same ways as any
other persons who violate a generally applicable law, regulation, or public
order measure.151 Refugees are subject only to the same penalties as others,
145
Statement of Mr. Rochefort of France, ibid. at 11.
146
“[W]hile some provision such as that proposed by the French delegation was desirable, it
would more appropriately be placed in article 1, among the provisions relating to the
exclusion from the benefits of the Convention of certain categories of refugees . . . [A]
refugee dealt with as proposed in the French amendment . . . would cease to be a refugee
for the purposes of the Convention”: Statement of Mr. van Heuven Goedhart, UNHCR,
ibid. at 9–10. The requirements for exclusion from refugee status are discussed in Grahl-
Madsen, Status of Refugees I, at 262–304; Hathaway and Foster, Refugee Status, at 524–598;
and Goodwin-Gill and McAdam, Refugee in International Law, at 162–197.
147
“In his view, it should be recognized that in the last resort a country might be obliged to
return the offender to the country from which he came . . . [but] [i]t would be wrong to
exclude any such person from the benefits of the Convention while he still remained as
a refugee in a particular country”: Statement of Mr. Hoare of the United Kingdom, UN
Doc. A/CONF.2/SR.4, July 3, 1951, at 10. See generally Chapter 5.1.
148
Statement of Mr. Hoare of the United Kingdom, UN Doc. A/CONF.2/SR.4, July 3, 1951,
at 11.
149
Statement of Mr. Rochefort of France, UN Doc. A/CONF.2/SR.24, July 17, 1951, at 19.
150
“[N]on-observance [by a refugee] of his ‘duties’ according to Article 2 has no effect in
international law”: Grahl-Madsen, Status of Refugees I, at 58. Lambert similarly concludes
“that the non-observance of a duty covered by Art. 2 does not have any effect in
international law (as opposed to national law); it does not entail the loss of refugee status
or any particular right under the 1951 Convention”: Lambert, “Article 2,” at 632.
151
“What was important was that the refugee should not constitute a problem, and that he
should conform to the laws and regulations to which he was subject. When he failed to do
so, appropriate sanctions should be applied, and repeated violations of the regulations
might reasonably warrant expulsion. Until he was expelled, however, he should be treated
in accordance with the provisions of the Convention and be subject only to such sanctions
as were applicable to other law-breakers”: Statement of Mr. Hoeg of Denmark, UN Doc.
A/CONF.2/SR.4, July 3, 1951, at 4–5. The only exception is the right of refugees to receive
travel documents, which may be suspended under the explicit terms of the Convention

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 1.4 c o n v en t i o n rel at i n g t o t he statu s of refu gees 49

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

where required by “compelling reasons of national security or public order”: Refugee

Convention, at Art. 28. See generally Chapter 6.6.
152
Thus, for example, the threat of the Thai government in July 2003 to revoke the registra-
tion of any refugee who “break[s] any Thai laws” was clearly inconsistent with the
requirements of the Refugee Convention: “Thais to Intern 1,500 Burmese,”
International Herald Tribune, July 3, 2003, at 1. Swaziland also acted contrary to inter-
national law when it withdrew refugee status from thirty-seven refugees and ordered their
“provisional isolation” because they had embarrassed Prince Sobandla by protesting
during a visit to a refugee camp. The Prince justified the decision on the grounds of
“gross misconduct and breach of refugee ethics”: Times of Swaziland, July 19, 2002.
153
Refugee Convention, at Arts. 32 and 33, discussed at Chapters 5.1 and 4.1 respectively.
154
Human Rights Watch, “Massive Expulsion of Cubans from Ecuador,” July 15, 2016.
155
“It is correct to state that the rights enjoyed by the refugees under the 1951 Convention are
not absolute and [refugees] are expected to abide by the national law . . . Thus, one’s
refugee status does not provide immunity from prosecution or other legal sanctions that
the State is entitled to pursue”: Kituo Cha Sheria et al. v. Attorney General, Petitions Nos.
19 and 115 of 2013 (Ken. HC, July 26, 2013), at [86].
156
See note 142.

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 50 1 e v o l u t i o n o f t h e re f u g e e r i g h t s r eg i m e

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

1.4.5 Non-impairment of Other Rights

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

157
Indeed, as Haines has observed, “[i]t would be unfortunate . . . were Article 2 to be employed as
a bed of Procrustes, exacting from refugees conformity to absolute standards of lawful
conduct”: R. Haines, International Academy of Comparative Law National Report for New
Zealand (1994), at [28].
158
“The committee also thought it advisable to make it clear that the adoption of the present
Convention should not impair any greater rights which refugees might enjoy prior to or
apart from this Convention”: “Report of the Ad Hoc Committee on Refugees and Stateless
Persons, Second Session,” UN Doc. E/1850, Aug. 25, 1950, at 11.
159
See also A. Skordas, “Article 5,” in A. Zimmermann ed., The 1951 Convention relating to the
Status of Refugees and its 1967 Protocol (2011) 669 (Skordas, “Article 5”), at 675 (“Art. 5 is, in
substance, a ‘may’ clause”). But Art. 5 plays a critical role in the event of normative conflict: see
text at note 165.
160
Robinson, History, at 79.
161
The Refugee Convention does, however, replace the earlier refugee treaties of 1922, 1924,
1926, 1928, 1933, 1935, 1938, 1939, and 1946: Refugee Convention, at Art. 37.
162
Robinson, History, at 79. Indeed, as originally conceived, Art. 5 may even have been intended
to authorize discrimination in favor of particular sub-groups of the refugee population,

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 1.4 convention relating t o t he status of refugees 51

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

a matter now generally proscribed by general international human rights law: see
Chapter 1.5.5.
163
Refugee Convention, at Art. 1(A)(1).
164
Ibid. at Arts. 1(A)(1) and 1(C)(5). See generally Grahl-Madsen, Status of Refugees I, at
108–119, 307–309, and 367–369; and Hathaway and Foster, Refugee Status, at 483–485.
165
Art. 5 is stated in peremptory terms (“[n]othing in this Convention shall be deemed to
impair [emphasis added]”): Refugee Convention, at Art. 5.
166
Weis, Travaux, at 44.
167
UN Doc. E/AC.32/L.42/Add.1, at 8, adopted by the Committee as Art. 3(a): UN Doc. E/
AC.32/SR.43, Aug. 25, 1950, at 14.
168
Statement of the President, Mr. Larsen, UN Doc. A/CONF.2/SR.5, Nov. 19, 1951, at 18.
169
See also Weis, Travaux, at 44: “It resulted from the history of the Article that both rights and
benefits granted prior to the Convention and subsequently to its entry into force are meant.”
170
See generally Chapter 3.2.

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 52 1 e vo lution of the refugee rights regime

important accords negotiated since the advent of the Refugee Convention –

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

171
Another possible source of complementary rights and benefits is the notion of diplomatic
or territorial asylum more broadly conceived: see Skordas, “Article 5,” at 684–690.
172
See Chapter 1.5.4.
173
V. Chetail, “Are Refugee Rights Human Rights? An Unorthodox Questioning of the
Relations between Refugee Law and Human Rights Law,” in R. Rubio-Marin ed.,
Human Rights and Immigration 19 (2014) (Chetail, “Are Refugee Rights Human
Rights?”), at 22. Skordas, in contrast, contends that it is “more appropriate to examine
the relationship between refugee law and human rights law in Art. 7, which establishes
a clear obligation of the contracting parties to afford refugees the same treatment as that
accorded to aliens generally”: Skordas, “Article 5,” at 675; see also ibid. at 677 and 698. Art.
7, which establishes the general standard of treatment for refugees (see Chapter 3.2) does
indeed reinforce the right of refugees to benefit from general norms of human rights law.
But it is Art. 5 that most clearly resolves the potentially thorny question of how the two
bodies of law should be reconciled, requiring that refugees receive the benefit of the
cognate rights set by international human rights law.
174
Edwards takes much the same position, arguing that “[i]f Article 5 of the [Refugee]
Convention is read as a ‘successive clause’ or ‘conflict clause,’ then Article 30(2) of the
1969 Vienna Convention on the Law of Treaties would support this interpretation”:
A. Edwards, “Human Rights, Refugees, and the Right ‘to Enjoy’ Asylum,” (2005) 17(2)
International Journal of Refugee Law 293, at 306. She also notes that Art. 30(3)–(4) of the
Vienna Convention tends to the same result since “[it] provide[s] that where an earlier
treaty is not terminated or suspended, the former applies only to the extent that its
provisions are compatible with the latter treaty. While there is no refugee-specific replace-
ment for the 1951 Convention, there is an overlap in relation to particular provisions . . .
and application of sub-Articles 30(3) and (4) of the Vienna Convention would mean that
all the provisions of the 1951 Convention and/or 1967 Protocol remain on foot apart from
those which are incompatible with [international human rights law] instruments subse-
quently ratified”: ibid. Schabas describes the import of the cognate provision of the Civil
and Political Covenant as “giv[ing] expression to the principle that the rights of the
Covenant merely represent a minimum standard and that the combined effect of various

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 1.5 p ost-convention sources of r efugee rights 53

The next section examines the most important of these complementary

sources of refugee rights that have come into existence since the drafting of the
Refugee Convention.

1.5 Post-Convention Sources of Refugee Rights

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

human rights conventions, domestic norms and customary international law may not be
interpreted to the detriment of the individual”: Schabas, Nowak’s CCPR Commentary,
at 113.
175
As discussed in Chapter 1.4.5 at note 158, these rights were safeguarded under Art. 5 of the
Refugee Convention.
176
See Chapter 1.5.3. 177 See Chapter 4.2. 178 See Chapter 4.1.

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 54 1 e volution of the refugee rights regime

1.5.1 Protocol relating to the Status of Refugees

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

179
Refugee Protocol, Art. I(1). 180 See Chapter 1.4.3.
181
But see UNHCR, “Introductory Note to Text of the 1951 Convention and 1967 Protocol
Relating to the Status of Refugees” (2010), at 2: “The Convention entered into force on
22 April 1954 and it has been subject to only one amendment in the form of the 1967
Protocol [emphasis added].”
182
P. Weis, “The 1967 Protocol relating to the Status of Refugees and Some Questions relating
to the Law of Treaties,” (1967) 42 British Yearbook of International Law 39, at 60. More
specifically, “[t]he procedure for revision of the 1951 Convention, as provided for in its
terms, was not resorted to in view of the urgency of extending its personal scope to new
groups of refugees and of the fact that the amended treaty would have required fresh
consent by the states parties to the Convention. Instead, a new instrument, the 1967
Protocol relating to the Status of Refugees, was established, which does not amend the
1951 Convention and modifies it only in the sense that States acceding to the Protocol
accept the material obligations of the Convention in respect of a wider group of persons.
As between the state parties to the Convention, it constitutes an inter se agreement by
which they undertake obligations identical ratione materiae with those provided for in the
Convention for additional groups of refugees not covered by the Convention on account
of the dateline of 1 January 1951. As regards states not parties to the Convention, it
constitutes a separate treaty under which they assume the material obligations laid down
in the Convention in respect of refugees defined in Art. 1 of the Protocol, namely those
covered by Art. 1 of the Convention and those not covered by reason of the dateline”: ibid.
at 59.
183
Minister for Immigration and Multicultural Affairs v. Savvin, (2000) 171 ALR 483 (Aus.
FFC, Apr. 12, 2000), per Katz J. Justice Katz thus concludes that “for parliament to
describe the 1951 Convention as having been ‘amended’ by the 1967 Protocol is inaccur-
ate. At the same time, however, for a state like Australia, which was already bound by the
1951 Convention before acceding to the 1967 Protocol, the error is one of no practical
significance”: ibid.

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 1.5 p ost-convention sources of r efugee rights 55

deny other state parties the right to refer a dispute regarding their interpret-
ation or application of the Protocol to the International Court of Justice.184
One country, Venezuela, has in fact excluded the Court’s jurisdiction. Angola,
Botswana, China, Congo, El Salvador, Ghana, Jamaica, Rwanda, St. Vincent
and the Grenadines, and Tanzania have purported to make a similar election.
Yet because these countries, unlike Venezuela, are also parties to the
Convention – which contains a mandatory provision regarding the Court’s
jurisdiction185 – a dispute involving one of these states may still be referred to
the International Court of Justice so long as it involves the “interpretation or
application” of the Convention, rather than of the Protocol. Over time there
will of course be fewer and fewer living pre-1951 refugees,186 meaning that
countries entering a relevant reservation under the Protocol may in practice
have successfully insulated themselves from referrals based on “application” of
the Convention. But so long as the referral is framed as a more general matter
of “interpretation” of the Convention – for example, directed to the meaning of
a given Convention right, albeit incorporated by reference in the Protocol –
a referral to the International Court of Justice should be deemed admissible.
A decade after the adoption of the Protocol, the United Nations Conference
on Territorial Asylum considered, but ultimately rejected, the codification of
a new treaty that would have enhanced the protection of refugees. In addition
to agreeing to important interpretations of existing norms – for example, that
the duty of non-refoulement should be understood to include “rejection at the
frontier”187 – the Conference reached agreement in principle on two new
norms: to require states to facilitate the admission of a refugee’s spouse and
184
Under Art. VII(1) of the Refugee Protocol, a state may enter a reservation regarding Art.
IV of the Protocol, which establishes the right of other state parties to refer a dispute to the
International Court of Justice. In contrast, Art. 42 of the Refugee Convention, which
addresses the scope of permissible reservations to that treaty, does not allow states to enter
a reservation to Art. 38, the equivalent of Art. IV of the Protocol. “While the Convention
provides for obligatory jurisdiction of the International Court of Justice in any dispute
relating to its interpretation or application, one reason for the Protocol was for some States
to be able to make reservations to this jurisdictional clause”: Sohn and Buergenthal,
Movement of Persons, at 113. The Protocol incorporated the possibility of a reservation
to the jurisdiction of the International Court of Justice in order to encourage participation
by African and other states that preferred disputes to be resolved “by negotiation or
conciliation and not by judicial means”: K. Oellers-Frahm, “Article 38 of the 1951
Convention/Article IV of the 1967 Protocol,” in A. Zimmermann ed., The 1951
Convention relating to the Status of Refugees and its 1967 Protocol (2011) 1537, at 1552,
n. 92. Pellet considers the Protocol’s revision of the Convention’s approach on this point
was “a sign of the times – and of the change in the majority of States, now defiant towards
any intervention of the ICJ”: Pellet, “Article 42,” at 1623. See UNHCR, “Addendum to the
Report of the United Nations High Commissioner for Refugees,” UN Doc. A/6311/Rev.1/
Add.1, Jan. 1, 1968, at [33].
185
Refugee Convention, at Art. 38. 186 See Chapter 1.4.3 at note 88.
187
UN Doc. A/CONF.78/12, Feb. 4, 1977. See generally A. Grahl-Madsen, Territorial Asylum
(1980) (Grahl-Madsen, Territorial Asylum).

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 56 1 e v o l u t i o n o f t h e re f u g e e r i g h t s r eg i m e

minor or dependent children, and to allow states to make refugee rights

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

1.5.2 Conclusions and Guidelines on International Protection

Rather than formulate new refugee rights, the focus of effort since 1975 has
been to elaborate the content of existing standards in non-binding form.
Most important, the state members of the UNHCR’s governing body – the
Executive Committee of the High Commissioner’s Program – have issued
“Conclusions on the International Protection of Refugees.”189 The
Conclusions address such matters as non-rejection and non-refoulement,190
exemption from penalties for illegal entry,191 conditions of detention,192
limits on expulsion and extradition,193 family unity,194 the provision of
identification and travel documents,195 physical security,196 and the rights
188
UN Doc. A/CONF.78/12, Feb. 4, 1977. See generally Grahl-Madsen, Territorial Asylum.
189
See UNHCR, “Conclusions on International Protection Adopted by the Executive
Committee of the UNHCR Programme, 1975–2017,” UN Doc. HCR/IP/3/Eng/REV.
2017. UNHCR has also issued “A Thematic Compilation of Executive Committee
Conclusions” (2014), which organizes relevant Executive Committee Conclusions under
seventy-three major chapters. No Conclusions on International Protection were issued in
2018 or 2019, with a decision on a future workplan delayed until 2020: UNHCR Executive
Committee, “Notes of the Rapporteur, 18–20 June 2019,” www.unhcr.org/5d0b442c7.pdf,
accessed Jan. 15, 2020.
190
See UNHCR Executive Committee Conclusions Nos. 1 (1975), 5 (1977), 6 (1977), 17
(1980), 22 (1981), 29 (1983), 50 (1988), 52 (1988), 55 (1989), 62 (1990), 65 (1991), 68
(1992), 71 (1993), 74 (1994), 77 (1995), 81 (1997), 82 (1997), 85 (1998), 87 (1999), 89
(2000), 91 (2001), 94 (2002), 99 (2004), 100 (2004), 102 (2005), 103 (2005), and 108 (2008).
191
Ibid. at Nos. 22 (1981), 44 (1986), 55 (1989), 85 (1998), and 97 (2003).
192
Ibid. at Nos. 3 (1977), 7 (1977), 36 (1985), 44 (1986), 46 (1987), 47 (1987), 50 (1988), 55
(1989), 65 (1991), 68 (1992), 71 (1993), 85 (1998), 89 (2000), 93 (2002), 101 (2004), 106
(2006), and 107 (2007).
193
Ibid. at Nos. 7 (1977), 9 (1977), 17 (1980), 21 (1981), 44 (1986), 50 (1988), 55 (1989), 61
(1990), 68 (1992), 71 (1993), 79 (1996), 85 (1998), 96 (2003), and 102 (2005).
194
Ibid. at Nos. 1 (1975), 9 (1977), 15 (1979), 22 (1981), 24 (1981), 47 (1987), 74 (1994), 84
(1997), 85 (1998), 88 (1999), 91 (2001), 93 (2002), 100 (2004), 101 (2004), 103 (2005), 104
(2005), 105 (2006), 107 (2007), and 110 (2010).
195
Ibid. at Nos. 8 (1977), 18 (1980), 24 (1981), 35 (1984), 64 (1990), 65 (1991), 72 (1993), 73
(1993), 91 (2001), 93 (2002), 99 (2004), 100 (2004), 101 (2004), 102 (2005), 104 (2005), 105
(2006), 107 (2007), 111 (2013), and 114 (2017).
196
Ibid. at Nos. 20 (1980), 25 (1982), 29 (1983), 39 (1985), 44 (1986), 45 (1986), 46 (1987), 48
(1987), 54 (1988), 55 (1989), 58 (1989), 60 (1989), 64 (1990), 68 (1992), 72 (1993), 73
(1993), 74 (1994), 77 (1995), 79 (1996), 81 (1997), 87 (1999), 89 (2000), 90 (2001), 98
(2003), 99 (2004), 105 (2006), and 108 (2008).

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 1.5 p ost-convention sources of refugee rights 57

to education197 and to undertake employment.198 An effort has also been

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

197
Ibid. at Nos. 47 (1987), 58 (1989), 59 (1989), 74 (1994), 77 (1995), 80 (1996), 84 (1997), 85
(1998), 91 (2001), 93 (2002), 98 (2003), 100 (2004), 101 (2004), 102 (2005), 104 (2005), 105
(2006), 106 (2006), 107 (2007), 108 (2008), 109 (2009), 110 (2010), and 111 (2013).
198
Ibid. at Nos. 50 (1988), 58 (1989), 64 (1990), 88 (1999), 93 (2002), 95 (2003), 100 (2004),
101 (2004), 102 (2005), 104 (2005), 105 (2006), 107 (2007), 108 (2008), and 109 (2009).
199
Ibid. at Nos. 47 (1987), 59 (1989), 72 (1993), 73 (1993), 74 (1994), 79 (1996), 85 (1998), 87
(1999), 89 (2000), 98 (2003), 105 (2006), 107 (2007), and 113 (2016).
200
Ibid. at Nos. 32 (1983), 39 (1985), 46 (1987), 54 (1988), 60 (1989), 64 (1990), 68 (1992), 71
(1993), 73 (1993), 74 (1994), 77 (1995), 79 (1996), 81 (1997), 85 (1998), 87 (1999), 89
(2000), 98 (2003), 102 (2005), 105 (2006), 107 (2007), 108 (2008), 109 (2009), and 110
(2010).
201
Ibid. at Nos. 32 (1983), 85 (1998), 87 (1999), 89 (2000), 94 (2002), 102 (2005), 105 (2006),
108 (2008), 109 (2009), and 110 (2010).
202
Ibid. at Nos. 19 (1980), 22 (1981), 25 (1982), 44 (1986), 81 (1997), 85 (1998), 90 (2001), 100
(2004), 101 (2004), 104 (2005), 109 (2009), and 110 (2010).
203
The New Zealand Court of Appeal gave particular weight to determinations by the
UNHCR Executive Committee, noting that their “value derives in part from the fact
that the executive committee is itself an assembly of states which has debated the issue and
settled on a formal statement concerning it”: Attorney General v. Refugee Council of New
Zealand Inc., [2003] 2 NZLR 577 (NZ CA, Apr. 16, 2003), at [100]. See also G. Gilbert,
“UNHCR and Courts: Amicus curiae . . . sed curia amica est?,” (2016) 28(4) International
Journal of Refugee Law 622, arguing that Executive Committee Conclusions deserve real
deference because of the breadth and commitment to protection of the states represented
and the fact that the Conclusions are reached by consensus.
204
See UNHCR Executive Committee Conclusions Nos. 81 (1997), 103 (2005), and 104
(2005). McAdam observes that while Executive Committee Conclusions are “regularly
invoked” by some courts, the Conclusions “have not received extensive curial discussion
as to their value or purpose”: J. McAdam, “Interpretation of the 1951 Convention,” in
A. Zimmermann ed., The 1951 Convention relating to the Status of Refugees and its 1967
Protocol (2011) 75 (McAdam, “1951 Convention”), at 112. See generally M. Fresia,
“Building Consensus within UNHCR’s Executive Committee: Global Refugee Norms in
the Making,” (2014) 27(4) Journal of Refugee Studies 514 (Fresia, “Building Consensus”).
205
Re R, Dec. No. 59/91 (NZ RSAA, May 19, 1992), at 20.
206
Cases in which top courts have referenced Executive Committee Conclusions include
Regina v. Immigration Officer at Prague Airport and Another (Respondents) ex parte
European Roma Rights Centre, [2004] UKHL 55 (UK HL, Dec. 9, 2004), at [24], per
Lord Bingham; Fornah v. Secretary of State for the Home Department, [2006] UKHL 46

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 58 1 e volution of the refugee rights regime

conclusions are properly assimilated to the context of the Refugee Convention

for interpretive purposes, as provided for by Art. 31(3)(b) of the Vienna
Convention.207
The Conclusions of the Executive Committee are moreover deserving of
real deference by virtue of UNHCR’s authority under Article 35 of the Refugee
Convention.208 As observed by the Canadian Federal Court of Appeal,

[I]n Article 35 of the [Refugee] Convention the signatory states undertake

to cooperate with the Office of the United Nations High Commissioner for
Refugees (UNHCR) in the performance of its functions and, in particular,
to facilitate the discharge of its duty of supervising the application of the
Convention. Accordingly, considerable weight should be given to recom-
mendations of the Executive Committee of the High Commissioner’s
Program on issues relating to refugee determination and protection that
are designed to go some way to fill the procedural void in the Convention
itself.209

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

(UK HL, Oct. 18, 2006), at [84], per Baroness Hale; and QAAH of 2004 v. Minister for
Immigration and Multicultural and Indigenous Affairs, [2006] HCA 53 (Aus. HC, Nov. 15,
2006), at 118, per Kirby J. In their commissioned study, Deschamp and Dowd describe
cases in which Executive Committee Conclusions were drawn upon to interpret domestic,
regional, or international legislation; in which they were used to interpret the Refugee
Convention; in which they informed analysis of customary law or consensus among states;
and in which they informed the role of the decision-maker. The cases reported were from
the European Court of Human Rights, the Inter-American Court of Human Rights, and
the UN Human Rights Committee, as well as from the national courts of Australia,
Austria, Ireland, Japan, New Zealand, Poland, Slovenia, and the United Kingdom:
B. Deschamp and R. Dowd, “Review of the Use of UNHCR Executive Committee
Conclusions on International Protection,” UN Doc. PDES/2008/03 (April 2008)
(Deschamp and Dowd, “Review”), at 24–27.
207
See Chapter 2.2 at note 80. See also McAdam, “1951 Convention,” at 112; and Deschamp
and Dowd, “Review,” at [86].
208
“The Contracting States undertake to co-operate with the Office of the United Nations
High Commissioner for Refugees . . . in the exercise of its functions, and shall in particular
facilitate its duty of supervising the application of the provisions of this Convention”:
Refugee Convention, at Art. 35(1). As the UK Supreme Court has noted, “[t]he guidance
given by the UNHCR is not binding, but should be accorded considerable weight, in the
light of the obligation of Member States under article 35 of the Convention to facilitate its
duty of supervising the application of the provisions of the Convention”: Al-Sirri
v. Secretary of State for the Home Department, [2012] UKSC 54 (UK SC, Nov. 21, 2012),
at [36].
209
Rahaman v. Minister of Citizenship and Immigration, 2002 ACWSJ Lexis 1026 (Can. FCA,
Mar. 1, 2002), per Evans J.A. To similar effect see Attorney General v. E, [2000] 3 NZLR
257 (NZ CA, July 11, 2000), at 269; Refugee Council of New Zealand Inc. v. Attorney
General, [2003] 2 NZLR 577 (NZ HC, May 31, 2002), at [47]; and R v. Asfaw, [2008] 1 AC
1061 (UK HL, May 21, 2008), at [13].

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 1.5 p o s t - c o n v e n t i o n s o u r c e s o f re f u g e e r i g h t s 59

conform to the Conclusions on Protection adopted by the agency’s governing

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

210
The authority of the UN General Assembly under Art. 13 of the UN Charter to initiate
studies and make recommendations relating to human rights is a “droit de regard” in the
sense that it entitles the General Assembly and subordinate bodies to scrutinize and
discuss human rights as well as to make recommendations, but includes no right to
require conformity with any standard. See Certain Expenses of the United Nations,
[1962] ICJ Rep 151, at 163–165.
211
The English Court of Appeal quoted this passage from the first edition (2005) of the
current volume, at 114, accepting it arguendo, though finding that the facts of the case did
not require it to decide the issue: HF (Iraq) and MK (Iraq) v. Secretary of State for the Home
Department, [2013] EWCA Civ 1276 (Eng. CA, Oct. 13, 2013), at [46]. States have affirmed
“the fundamental importance of UNHCR as the multilateral institution with the mandate
to provide international protection to refugees . . . and recall[ed] [their] obligations as
States Parties to cooperate with UNHCR in the exercise of its functions; [and] [u]rge[d] all
states to consider ways that may be required to strengthen the implementation of the 1951
Convention and/or 1967 Protocol and to ensure closer cooperation between States Parties
and UNHCR to facilitate UNHCR’s duty of supervising the application of the provisions
of these instruments”: “Declaration of States Parties to the 1951 Convention and/or its
1967 Protocol relating to the Status of Refugees,” UN Doc. HCR/MMSP/2001/09, Dec. 13,
2001, incorporated in Executive Committee of the High Commissioner’s Program,
“Agenda for Protection,” UN Doc. EC/52/SC/CRP.9/Rev.1, June 26, 2002, at Part I,
[8]–[9].
212
Tension between some state members and the UNHCR staff apparently led to a 2008
request by states for an evaluation of the way in which Conclusions are drafted, “showing
clear indications of a growing mistrust vis-à-vis the agency and of a will [of states] to
regain ownership of the process”: Fresia, “Building Consensus,” at 525.
213
“Some judgments differentiate between the weight of the [Executive Committee]
Conclusions and UNHCR Guidelines”: Deschamp and Dowd, “Review,” at [86].
A reasonable position suggested in a dissenting judgment in the Full Federal Court of
Australia is simply to treat advice prepared by UNHCR staff as “documents prepared by
experts to assist States . . . to carry out their obligations under the Convention”: QAAH of

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 60 1 e volution of the r efug ee rights regime

There is, of course, a long-standing practice of giving significant weight to

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

2004 v. Minister for Immigration and Indigenous Affairs, [2005] FCAFC 136 (Aus. FFC,
July 27, 2005), at [46], per Wilcox J. in dissent.
214
UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status (1979, re-
issued 1992 and 2019).
215
In 1977, the Executive Committee “[r]equested the Office to consider the possibility of
issuing – for the guidance of Governments – a handbook relating to procedures and
criteria for determining refugee status”: UNHCR Executive Committee Conclusion No. 8,
“Determination of Refugee Status” (1977), at [(g)], in UNHCR, “Conclusions on
International Protection Adopted by the Executive Committee of the UNHCR
Programme, 1975–2017,” UN Doc. HCR/IP/3/Eng/REV. 2017.
216
Immigration and Naturalization Service v. Cardoza Fonseca, (1987) 480 US 421 (US SC,
Mar. 9, 1987), at 439, n. 22.
217
Immigration and Naturalization Service v. Aguirre Aguirre, (1999) 526 US 415 (US SC,
May 3, 1999), at 427. The Handbook was also referenced in Negusie v. Attorney General,
(2009) 555 US 511 (US SC, Mar. 3, 2009), at 536–537, per Stevens J. (in partial dissent).
218
“Opinion of Advocate General Sharpston, delivered on 4 March 2010,” in the case of
Bolbol v. Germany, Dec. No. C-31/09 (CJEU, June 17, 2010), at [16].
219
Chan v. Canada, [1995] 3 SCR 593 (Can. SC, Oct. 19, 1995), at [119]. In the words of the
House of Lords, “the UNHCR Handbook, although not binding on states, has high
persuasive authority, and is much relied on by domestic courts and tribunals”: R v.
Secretary of State for the Home Department, ex parte Adan and Aitseguer, [2001] 2 WLR
143 (UK HL, Dec. 19, 2000), per Lord Steyn. The Handbook has been treated as evidence of
the current state of international practice on interpretation of refugee law: R (Hoxha)
v. Secretary of State for the Home Department, [2002] EWCA Civ 1403 (Eng. CA, Oct. 14,
2002), at [36]; AH (Algeria) v. Secretary of State for the Home Department, [2015] EWCA
Civ 1003 (Eng. CA, Oct. 14, 2015), at [12], though this characterization has been ques-
tioned by the Full Federal Court of Australia: NBGM v. Minister for Immigration and
Multicultural and Indigenous Affairs, [2006] FCAFC 60 (Aus. FFC, May 12, 2006), at 162.
220
Chan v. Canada, [1995] 3 SCR 593 (Can. SC, Oct. 19, 1995), at [119]; Immigration and
Naturalization Service v. Aguirre Aguirre, (1999) 526 US 415 (US SC, May 3, 1999), at 428.
221
AH (Algeria) v. Secretary of State for the Home Department, [2015] EWCA Civ 1003 (Eng.
CA, Oct. 14, 2015), at [13].

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or international law,”222 the determination by the New Zealand Court of

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

222
R v. Secretary of State for the Home Department, ex parte Bugdaycay, [1987] AC 514 (UK
HL, Feb. 19, 1987), per Lord Bridge of Harwich at 525; cited with approval in M v. Attorney
General, [2003] NZAR 614 (NZ HC, Feb. 19, 2003). In the House of Lords case of Hoxha,
“Lord Brown . . . noted the Handbook’s language of ‘aspiration and exhortation,’ and
tracked the development of UNHCR’s positions from 1979 onwards, through
a Conclusion adopted by the UNHCR Executive Committee in 1992, and then eventually
to a statement of ‘obligation’ in revised guidelines published in 2003. He did not accept
that the evidence justified such a progression”: G. Goodwin-Gill, “The Search for One
True Meaning,” in G. Goodwin-Gill and H. Lambert eds., The Limits of Transnational Law
(2010) 204, at 228.
223
S v. Refugee Status Appeals Authority, [1998] 2 NZLR 291 (NZ CA, Apr. 2, 1998), at 300.
See also M v. Attorney General, [2003] NZAR 614 (NZ HC, Feb. 19, 2003).
224
Gjon Rrotaj v. Minister of Citizenship and Immigration, [2016] FC 152 (Can. FC, Feb. 8,
2016), at [22]. In reaching this decision the court referenced the earlier findings of the
Supreme Court of Canada in Pushpanathan v. Canada, [1998] 1 SCR 982, at [53–54], and
Chan v. Canada, [1995] 3 SCR 593, at [46]: ibid.
225
Dobrosav Gavrić (Afghanistan) v. Refugee Status Determination Officer, [2018] ZACC 38
(SA CC, Sept. 28, 2018), at [35].
226
In WAGO of 2002 v. Minister for Immigration and Multicultural and Indigenous Affairs,
194 ALR 676 (Aus. FFC, Dec. 20, 2002), the Australian Full Federal Court declined to find
any error in the determination that the provisions in the UNHCR Handbook “were not
part of the law of Australia and did not provide grounds for legal review of the Tribunal’s
decision.” The Scottish Court of Session has also made clear that decision-makers are not
obliged to refer to the Handbook when making a decision on a relevant point: Morteza
Fafschi, [2006] CSOH 125 (Sc. CSOH, Aug. 15, 2006), at [26].
227
NBGM v. Minister for Immigration and Multicultural and Indigenous Affairs, [2006]
FCAFC 60 (Aus. FFC, May 12, 2006), at 162.
228
NADB of 2001 v. Minister for Immigration and Multicultural Affairs, [2002] FCAFC 326
(Aus. FFC, Oct. 31, 2002). See also Todea v. MIEA, (1994) 20 AAR 470 (Aus. FC, Dec. 22,
1994), at 484.
229
Sepet and Bulbul v. Secretary of State for the Home Department, [2003] UKHL 15 (UK HL,
Mar. 20, 2003), at [12].

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 62 1 e volution of the r efugee rights regime

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

230
See text at note 219.
231
Judges have certainly not treated UNHCR Guidelines as requiring a rethinking of domes-
tic refugee law. In assessing the relevance of the Guidance Note on Refugee Claims Relating
to Female Genital Mutilation (May 2009), a US appeals court noted that it was “doubtful
whether this particular guidance note offers persuasive authority, as it appears to contra-
dict the express terms of the [Immigration and Naturalization Act]”: Abou Kane
v. Attorney General, 581 F. 3d 231 (US CA5, Aug. 26, 2009), at 242. The Irish High
Court did not defer to UNHCR’s guidelines and statement of good practice on separated
children, noting that they “are all useful and authoritative sources of guidance . . . But that
is all that they are: guidelines. They have no force of law”: U and Another v. Minister for
Justice, Equality, and Law Reform, [2010] IEHC 317 (Ir. HC, July 30, 2010), at [14].
232
For example, in his endorsement of giving weight to UNHCR advice, Justice Kirby
observed that “[p]articularly is this so in the absence of clear national jurisprudence and
relevant State practice”: MIMIA v. QAAH, [2006] HCA 53 (Aus. HC, Nov. 15, 2006), at
[80], per Kirby J.
233
See J. Hathaway, “A Forum for the Transnational Development of Refugee Law: The
IARLJ’s Advanced Refugee Law Workshop,” (2003) 15(3) International Journal of Refugee
Law 418.
234
In a case involving exclusion under Art. 1(F)(c), for example, the English Court of Appeal
declined to follow the approach of Guideline on International Protection No. 5 on the
grounds that it did not align with the Court’s understanding of the approach adopted in
relevant UN Security Council resolutions: Hany El-Sayed El-Sebaai Youssef v. Secretary of
State for the Home Department, [2018] EWCA Civ 933 (Eng. CA, Apr. 26, 2018).
235
“The purpose of this ‘holistic’ approach to understanding treaty provisions is to ‘enable
a simultaneous consideration of the treaty text and valid extrinsic materials elucidating
it’”: MIMIA v. QAAH, [2006] HCA 53 (Aus. HC, Nov. 15, 2006), at [75], per Kirby J.
“Generally, commentaries and explanatory documents, such as the UNHCR Handbook on
Procedures, are regarded as having persuasive value as aids to construing the treaty to
which they relate”: McAdam, “1951 Convention,” at 112.

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

236
“Opinion of Advocate General Mengozzi, delivered on 1 June 2010,” in the case of
Germany v. B and D, Dec. Nos. C-57/09 and C-101/09 (CJEU, Nov. 9, 2010), at [43].
237
“In disagreeing with the interpretation put forward by the Office of the UNHCR, I am
guided primarily by the clear text of the provision, which has not been amended in over 50
years. In contrast, it seems to me that the UNHCR’s reading has varied over time”:
“Opinion of Advocate General Sharpston, delivered on 4 March 2010,” in the case of
Bolbol v. Germany, Dec. No. C-31/09 (CJEU, June 17, 2010), at [76]. It is also noteworthy
that despite the strong plea made by Kirby J. in dissent (at [81]), the majority of the High
Court of Australia declined to draw on either the UNHCR Handbook or Guidelines in
MIMIA v. QAAH, [2006] HCA 53 (Aus. HC, Nov. 15, 2006).
238
As of January 2020, thirteen sets of Guidelines had been issued by UNHCR: UN Docs.
HCR/GIP/02/01 (gender-related persecution); HCR/GIP/02/02 (membership of
a particular social group); HCR/GIP/03/03 (cessation); HCR/GIP/03/04 (internal reloca-
tion alternative); HCR/GIP/03/05 (exclusion); HCR/GIP/04/06 (religion-based claims);
HCR/GIP/06/07 (trafficking-based claims); HCR/GIP/09/08 (asylum claims by children);
HCR/GIP/12/09 (claims based on sexual orientation or gender identity); HCR/GIP/13/10
(claims by conscientious objectors); HCR/GIP/15/11 (prima facie recognition of refugee
status); HCR/GIP/16/12 (claims arising out of armed conflict or violence); and HCR/GIP/
17/13 (exclusion of Palestinian refugees). Commentators have voiced various concerns
about the Guidelines. Bailliet notes various process concerns, as well as the failure of early
guidelines to take adequate account of a broad range of national jurisprudence (a concern
largely addressed in the more recent Guidelines): C. Bailliet, “National Case Law as
a Generator of International Refugee Law: Rectifying an Imbalance Within UNHCR
Guidelines on International Protection,” (2015) 29 Emory International Law Review
2059, at 2063. Juss argues that the Guidelines have had insufficient impact due to “the
UNHCR’s own reluctance to posit a definitive guide for the determination of refugee
claims by states parties,” arguing the need for a UNHCR-authored “authoritative bench-
mark”: S. Juss, “The UNHCR Handbook and the Interface between ‘Soft Law’ and ‘Hard
Law’ in International Refugee Law,” in S. Juss and C. Harvey eds., Contemporary Issues in
Refugee Law 31 (2013), at 38–39. The latter position is at odds with the view advanced
here: see text at note 250.
239
At its fifty-third session, the UNHCR’s Executive Committee requested UNHCR “to
produce complementary guidelines to its Handbook on Procedures and Criteria for
Determining Refugee Status, drawing on applicable international legal standards, on
State practice, on jurisprudence and using, as appropriate, the inputs from the debates
in the Global Consultations’ expert roundtable discussions”: Executive Committee of the
High Commissioner’s Program, “Agenda for Protection,” UN Doc. EC/52/SC/CRP.9/

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 64 1 e volution of the r efugee rights regime

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

Rev.1, June 26, 2002, at Part III, Goal 1, Point 6. The Executive Committee clearly did not
intend that these guidelines should be the sole, or even the primary, means of advancing
the development of refugee law, since it simultaneously agreed that the agency should
“explore areas that would benefit from further standard-setting, such as [Executive
Committee] Conclusions or other instruments to be identified at a later stage”: ibid. at
Goal 1, Point 7. The Executive Committee has encouraged state parties to take account of
guidelines on the subject of gender-based persecution and violence: see UNHCR
Executive Committee Conclusions Nos. 98 (2003), 99 (2004), and 105 (2006). The
Executive Committee has not, however, expressly endorsed other guidelines nor more
generally promoted the guidelines initiative.
240
Executive Committee of the High Commissioner’s Program, “Agenda for Protection,” UN
Doc. EC/52/SC/CRP.9/Rev.1, June 26, 2002, at Part III, Goal 1, Point 6.
241
For example, on the question of what has traditionally been referred to as the “internal
flight alternative,” the Handbook directs attention to the retrospective question of whether
the applicant “could have sought refuge in another part of the same country”: UNHCR,
Handbook, at [91]. Yet in its “Guideline on International Protection: Internal Flight or
Relocation Alternative,” UN Doc. HCR/GIP/03/04 – expressly said to be a “supplement”
to the Handbook – UNHCR suggests that assessment should instead focus on “whether the
proposed area provides a meaningful alternative in the future. The forward-looking
assessment is all the more important”: ibid. at [8]. The point is not that the new standard
is less appropriate than that set by the Handbook, but simply that the effort to promote
inconsistent approaches will only engender confusion and lack of respect for UNHCR
standard-setting. Adding to this concern, while the new Guidelines are in principle
intended to “draw on” the expert advice received during the agency’s Global
Consultations process (Executive Committee of the High Commissioner’s Program,
“Agenda for Protection,” UN Doc. EC/52/SC/CRP.9/Rev.1, June 26, 2002, at Part III,
Goal 1, Point 6), the Guidelines at times diverge from even the formal conclusions reached
through that process. See e.g. J. Hathaway and M. Foster, “Membership of a Particular
Social Group,” (2003) 15(3) International Journal of Refugee Law 477, at [44]. Yet in at
least one case, an appellate court gave weight to the new Guidelines on the express grounds
that “[t]hey . . . result from the Second Track of the Global Consultations on International
Protection Process”: Minister for Immigration and Multicultural Affairs v. Applicant S,
[2002] FCAFC 244 (Aus. FFC, Aug. 21, 2002).
242
“By consensus, it was agreed [at the Lisbon Expert Roundtable of the Global
Consultations] on the question of balancing [the risks of return against the seriousness
of the crime committed] . . . [that] state practice indicates that the balancing test is no
longer being used in common law and in some civil law jurisdictions”: NADB of 2001 v.
Minister for Immigration and Multicultural Affairs, [2002] FCAFC 326 (Aus. FFC, Oct. 31,
2002).

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judgment acknowledged the existence of a formally adopted Executive

Committee Conclusion directly on point, characterized by the Court as providing
for a “restricted meaning” to be given to the notion.243 The Court of Justice of the
European Union struggled to take account of UNHCR advice on the exclusion of
Palestinians under Art. 1(D) given the shifting views of UNHCR as expressed in
the Handbook, and in Notes issued in 2002 and 2009.244 And in addressing the
propriety of the detention of refugees, the European Court of Human Rights
rejected a UNHCR submission made in the case because the Court determined
that it did not align with the agency’s own guidelines and the relevant Conclusion
of the UNHCR Executive Committee.245
More generally, the New Zealand Court of Appeal declined to give signifi-
cant weight to the new wave of UNHCR institutional positions because of their
questionable legal pedigree:

The Guidelines do not, however, have a status in relation to interpretation of

the Refugee Convention that is equal to that of the resolutions of the UNHCR
Executive Committee . . . I have focussed . . . on the Executive Committee’s
views which in any event I regard as the most valuable guide for the Court.246

The English Court of Appeal has similarly opted to treat the agency’s guide-
lines as “perhaps not of the same persuasive authority as the UN
Handbook.”247 These are reasonable positions since the Guidelines on
International Protection are not issued by a governance body, but rather by
agency staff. Indeed, the awkwardness of deferring to the views of UNHCR
officials is exacerbated by the fact that the agency (sensibly and often with
positive impact) has recently established a robust system of intervening before
national and regional courts by way of both amicus curiae briefs, and often by
actual appearance in court.248 With UNHCR increasingly assuming a direct
243
Rahaman v. Minister of Citizenship and Immigration, 2002 ACWSJ Lexis 1026 (Can. FCA,
Mar. 1, 2002).
244
“Opinion of Advocate General Sharpston, delivered on 4 March 2010,” in the case of
Bolbol v. Germany, Dec. No. C-31/09 (CJEU, June 17, 2010), at [17], [18], [20], [76].
245
Saadi v. United Kingdom, Dec. No. 13229/03 (ECtHR, Jan. 29, 2008), at [65].
246
Attorney General v. Refugee Council of New Zealand Inc., [2003] 2 NZLR 577 (NZ CA, Apr.
16, 2003), per McGrath J. at [111]. Justice Glazebrook gave the Guidelines somewhat
greater weight, noting that “it is also appropriate to have regard to . . . the Guidelines . . .
because the Immigration Service refers to them . . . and cannot be seen to ‘pick and choose’
the parts it wishes to comply with. It is also relevant that New Zealand will be judged in the
light of those Guidelines by the Office of UNHCR in its monitoring role”: ibid. at [271].
247
Secretary of State for the Home Department v. MA (Somalia), [2018] EWCA Civ 994 (Eng.
CA, May 2, 2018).
248
UNHCR reports that it has intervened hundreds of times before national and regional
courts and tribunals: www.refworld.org/type,AMICUS,,,,,0.html, accessed Jan. 15, 2020.
As the agency notes, “[i]nterventions before courts by UNHCR and other organizations
are an important tool through which protection standards can be developed and
a consistent application of refugee law fostered. Interventions before courts may take

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 66 1 e volution of the r efugee rights regime

advocacy role, judges may understandably feel some discomfort simultan-

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

different forms, depending on the national or supranational context, including formal

amicus curiae briefs, advisory opinions or letters to the court or parties involved, as well as
public statements”: ibid.
249
Speaking to UNHCR risk assessments for refugee returns, the UK Upper Tribunal
observed, “We find it difficult to overlook altogether the apparent conflict in UNHCR’s
position in relation to risk on return to Iraq . . . Whilst . . . we continue to have unanswered
questions as to how UNHCR can reconcile its ‘facilitation’ of voluntary returns with
a position . . . that certain areas of Iraq are unsafe, we do not propose to treat that as
a reason for attaching any less weight to its assessment of international protection needs”:
HM (Iraq) and Others v. Secretary of State for the Home Department, [2012] UKUT 00409
(UK UT-IAC, Nov. 13, 2012), at [279], [281]. In the same context, the English Court of
Appeal noted that “it was not inappropriate for the tribunal to comment on the potentially
conflicting interests of the UNHCR, notwithstanding that they did not affect the standing
of the report in this case. The UNHCR is responsible not merely for objectively assessing
risk but also for returnees, and a court is entitled to be alive to the possibility that the latter
function may possibly colour the risk assessment, even if only subconsciously”: HF (Iraq)
and MK (Iraq) v. Secretary of State for the Home Department, [2013] EWCA Civ 1276
(Eng. CA, Oct. 13, 2013), at [58].
250
As the review conducted for UNHCR by Deschamp and Dowd attests, this advocacy role
can also be an extremely effective means to bring relevant Conclusions of the Executive
Committee to the attention of courts: Deschamp and Dowd, “Review,” at 15–16.
251
The agency’s core mandate is the implementation of protection: Statute of the Office of the
United Nations High Commissioner for Refugees, UNGA Res. 428, Dec. 14, 1950, at
Arts. 8–9.

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 1.5 p os t-convention sources of refugee rights 67

emphasis on such interventions, UNHCR should reconsider its approach to

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

1.5.3 Regional Refugee Rights Regimes

Three regional organizations – the African Union, the European Union, and
the Organization of American States – administer legally binding regimes for
the protection of refugees. In the Arab world, a legally binding system for
refugee protection is open for adoption, but has not yet entered into force.
Southeast Asia has no legally binding system, but there is nonetheless a modest
political framework within which some refugee protection concerns are
acknowledged at the level of principle.
In general terms, the regional refugee law regimes share two main
characteristics. First, all of the regional regimes are designed to supple-
ment rather than to supplant the UN’s Refugee Convention. They have in
particular sought to expand the beneficiary class either by promoting
a liberal understanding of refugee status252 or by establishing a cognate
252
This is the approach adopted in the Convention Governing the Specific Aspects of Refugee
Problems in Africa, 1001 UNTS 45 (UNTS 14691), adopted Sept. 10, 1969, entered into
force June 20, 1974 (“AU Refugee Convention”), in which the refugee definition has been
broadened to include inter alia a person “who, owing to external aggression, occupation,
foreign domination or events seriously disturbing public order in either part or the whole of
his country of origin or nationality, is compelled to leave”: ibid. at Art. I(2). But the same
Convention also provides for the exclusion from protected status of any person who “has
seriously infringed the purposes and objectives of this [AU] Convention” (ibid. at Art. I(4)
(g)), a provision that is illegal to the extent it excludes persons for reasons not foreseen by
the UN Refugee Convention, the refugee definition of which cannot be varied by any state:
Refugee Convention, at Art. 42(1). Similarly, the League of Arab States’ Arab Convention on
Regulating Status of Refugees in Arab Countries, adopted 1994 (“Arab Refugee
Convention”), defines a refugee as including a Convention refugee and also “[a]ny person
who unwillingly takes refuge in a country other than his country of origin or his habitual
place of residence because of sustained aggression against, occupation and foreign domin-
ation of such country or because of the occurrence of natural disasters or grave events
resulting in major disruption of public order in the whole country or any part thereof”

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 68 1 e volution of the r efugee rights regime

protected class253 – typically including some or all persons fleeing war or

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

1.5.3.1 African Union

The first regional system, established by the Convention Governing the Specific
Aspects of Refugee Problems in Africa,255 adopted by the Organization of
African Unity (which has now been succeeded by the African Union),256 both
recognizes that the UN’s Refugee Convention “constitutes the basic and
(though notably this treaty also purports to omit “political opinion” as a ground for refugee
status): Arab Refugee Convention, at Art. 1(2). There is also an expanded refugee definition
under the non-binding OAS Cartagena Declaration, OAS Doc. OEA/Ser.L/II.66, Rev.1, at
190–193 (“OAS Cartagena Declaration”), which recommends that “the definition or con-
cept of a refugee to be recommended for use in the region is one which, in addition to
containing the elements of the 1951 Convention and the 1967 Protocol, includes among
refugees persons who have fled their country because their lives, safety or freedom have
been threatened by generalized violence, foreign aggression, internal conflicts, massive
violation of human rights or other circumstances which have seriously disturbed public
order”: ibid. at Art. III(3). It has been suggested that referring to such notions as an
expanded definition “is not correct” because they “change[] the focus of analysis . . . from
the individual to . . . the objective situation in the country of origin”: F. Piovesan and
L. Jubilut, “Regional Developments: Americas,” in A. Zimmermann ed., The 1951
Convention relating to the Status of Refugees and its 1967 Protocol (2011) 205, at 219. This
may, however, be a distinction without a difference since a class-based rather than indi-
viduated definition remains a definition; indeed class-based definitions of refugee status
were the norm in the earliest refugee treaties: Hathaway, “Evolution of Refugee Status”.
253
In contrast to other regional systems, the EU has adopted a distinct “subsidiary protection
status” which requires a showing of a risk of “[s]erious harm consist[ing] of: (a) the death
penalty or execution; or (b) torture or inhuman or degrading treatment or punishment of an
applicant in the country of origin; or (c) serious and individual threat to a civilian’s life or
person by reason of indiscriminate violence in situations of international or internal armed
conflict”: Directive on standards for the qualification of third-country nationals or stateless
persons as beneficiaries of international protection, for a uniform status for refugees or for
persons eligible for subsidiary protection, and for the content of the protection granted,
Doc. 2011/95/EU, Dec. 13, 2011 (“EU Qualification Directive”), at Art. 15.
254
See generally Hathaway and Foster, Refugee Status, at 390–394.
255
AU Refugee Convention, adopted Sept. 10, 1969, entered into force June 20, 1974.
256
On May 26, 2001, the Organization of African Unity (OAU) was legally transformed into
the African Union (AU): Constitutive Act of the African Union, adopted July 11, 2000, at

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 1.5 pos t-co nvention so urces of refugee rights 69

universal instrument relating to the status of refugees”257 and provides specific-

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

Art. 33(1). References to the OAU in the treaty must therefore now be read as referring to
the AU.
257
AU Refugee Convention, Preamble, at [9].
258
Ibid. at Art. VIII(2). See generally M. Sharpe, The Regional Law of Refugee Protection in
Africa (2018) (Sharpe, Africa), at chapter 4.
259
“Member States of the OAU shall use their best endeavours consistent with their respect-
ive legislation to receive refugees and to secure the settlement of those refugees who, for
well-founded reasons, are unable or unwilling to return to their country of origin or
nationality”: AU Refugee Convention, at Art. II(1). Given both the “best endeavours”
language and qualification by reference to national legislation, it surely overstates the case
to argue that this really amounts to an explicit right to asylum: but see G. Okoth-Obbo,
“Thirty Years On: A Legal Review of the 1969 OAU Refugee Convention Governing the
Specific Aspects of the Refugee Convention in Africa,” (2001) 20(1) Refugee Survey
Quarterly 79, at 88; and J. Oloka Onyango, “Plugging the Holes: Refugees, OAU Policy
and the Practice of Member States,” (1986) USC Issue Brief, at 7. Sharpe takes the view that
while the AU Refugee Convention leaves the discretion to grant asylum to states, “it
nevertheless significantly ‘strengthens the institution of asylum’ [inter alia] by providing
[that] ‘Member States . . . shall use their best endeavours consistent with their respective
legislations to receive refugees’”: Sharpe, Africa, at 71. Overall, Art. II(1) is best described
as “a quasi right to asylum”: A. Abass and D. Mystris, “The African Union Legal
Framework for Protecting Asylum Seekers,” in A. Abass and F. Ippolito eds., Regional
Approaches to the Protection of Asylum Seekers: An International Law Perspective (2016) 19
(Abass and Mystris, “AU Legal Framework”), at 23.
260
The duty of non-refoulement is explicitly recognized to prohibit “rejection at the frontier,”
and to apply whenever there is a risk to the refugee’s “life, physical integrity, or liberty”:
AU Refugee Convention, at Art. II(3). See generally Sharpe, Africa, at 72–76.
261
AU Refugee Convention, at Art. V. While it has been suggested that this article “contains
another distinctive right in making provision for voluntary repatriation” ( G. Naldi and
C. D’Orsi, “The Role of the African Human Rights System with Reference to Asylum
Seekers,” in A. Abass and F. Ippolito eds., Regional Approaches to the Protection of Asylum
Seekers: An International Law Perspective (2016) 45, at 61), there is really nothing
substantively novel here. Repatriation under the AU Refugee Convention need only be
“voluntary” so long as the person in question remains a “refugee.” This is consistent with
the Refugee Convention, Arts. 1(C)(4) and 33. If and when refugee status is lost, including
by a fundamental change of circumstances in the country of origin (AU Refugee
Convention, Art. I(4)(e)), then repatriation need not be voluntary, though it must of
course be conducted in a rights-regarding way: see Chapter 7.1.

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 70 1 e volution of the r efugee rights regime

risks to public safety.262 The African treaty sets duties for a refugee’s home
country not to penalize refugees who choose to return,263 and affirmatively to
facilitate their reintegration.264 It also sets a more inclusive understanding of the
duty not to discriminate among refugees than does the Refugee Convention,
adding “membership of a particular social group or political opinions” to the
Convention’s list of grounds on which discrimination is prohibited.265 More
generally, the AU Refugee Convention is in practice regularly invoked by the
African Commission on Human and Peoples’ Rights,266 and may be interpreted
and applied by the African Court on Human and Peoples’ Rights.267
262
AU Refugee Convention, at Art. II(3). See G. Abi-Saab, “The Admission and Expulsion of
Refugees with Special Reference to Africa,” (2000) 8 African Yearbook of International
Law 71, at 90; and Chapter 4.1.4.
263
AU Refugee Convention, at Art. V(4). 264 Ibid. at Art. V(2) and (5).
265
Ibid. at Art. IV. It is curious that this provision replaces the Refugee Convention’s
guarantee against discrimination based on “country of origin” with a prohibition of
discrimination based on “nationality.” While this might raise the concern that the AU
Refugee Convention fails to prohibit discrimination against stateless refugees coming
from a particular country of former habitual residence, this possibility is foreclosed by
modern understandings of statelessness as a form of nationality: see Hathaway and Foster,
Refugee Status, at 397–399. On a more positive note, African regional human rights law
requires that children entitled to refugee protection shall “receive appropriate protection
and humanitarian assistance in the enjoyment of the rights set out in this Charter and
other international human rights and humanitarian instruments to which the States are
Parties” and specifically that “[w]here no parents, legal guardians or close relatives can be
found, the child shall be accorded the same protection as any other child permanently or
temporarily deprived of his family environment for any reason”: African Charter on the
Rights and Welfare of the Child, OAU Doc. CAB/LEG/24.9/49 (1990), at Art. 23.
266
Some commentators argue that at least from 2010, the African Commission on Human and
Peoples’ Rights was empowered “to monitor States’ compliance with the [AU] Refugee
Convention and to encourage States to implement the [AU] Refugee Convention in
domestic law”: J. van Garderen and J. Ebenstein, “Regional Developments: Africa,” in
A. Zimmermann ed., The 1951 Convention relating to the Status of Refugees and its 1967
Protocol (2011) 185 (van Garderen and Ebenstein, “Africa”), at 201. Yet as Sharpe points out,
“[t]he authors do not specify what AU organ endowed the Commission with this mandate,
nor do they cite any other legal basis for it”: M. Sharpe, “The Supervision (or Not) of the
1969 OAU Refugee Convention,” (2019) 31(2/3) International Journal of Refugee Law 261
(Sharpe, “Supervision”), at 270. While it is true that Art. VII of the AU Refugee Convention
requires state parties “to make reports to the competent [AU] organs,” Sharpe correctly
notes that this is a “stand-alone provision; it does not follow from any preceding paragraph
endowing the [AU] with a supervisory duty in relation to the 1969 Convention”: ibid. at 275.
267
Protocol, Art. 3(1), Rule of Court 26(1)(a), in force June 2, 2010. “There was originally no
regional mechanism tasked with implementation and enforcement, albeit this has changed
with the [African Court on Human and Peoples’ Rights] mandate being extended to cover
the 1969 OAU Convention”: Abass and Mystris, “AU Legal Framework,” at 26. More
precisely, the Court’s jurisdiction stems from its right to hear contentious cases regarding
any instrument ratified by the states concerned (which would include the AU Refugee
Convention). The challenge, however, is that individuals (including refugees) can only
bring a complaint to the Court against one of the nine countries that has authorized
individual standing. Most promising therefore is the right of the Court to issue advisory

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 1.5 p ost-convention s ources of r efugee rights 71

On the other hand, the AU Refugee Convention’s promise of enabling

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

opinions at the request even of an African NGO enjoying AU observer status: Sharpe,
“Supervision,” at 278.
268
AU Refugee Convention, Preamble, at [1]. 269 Ibid., Preamble, at [3].
270
Ibid. at Art. III(2).
271
See Chapter 6.5 and Sharpe, Africa, at 145–148. More generally, it has been suggested that
this Article’s prohibition of “subversive activities” is legally vulnerable on the grounds that
it “limits refugees’ right to freedom of expression and contradicts the rights enshrined in
the [African Convention on Human and Peoples’ Rights]”: van Garderen and Ebenstein,
“Africa,” at 193.
272
AU Refugee Convention, at Art. II(6).
273
Refugee Convention, at Art. 26. See Chapter 5.2 and Sharpe, Africa, at 116–118.
274
AU Refugee Convention, at Art. VI. This provision largely mirrors Art. 28 of the Refugee
Convention, though it adds the qualification that “[w]here an African country of second
asylum accepts a refugee from a country of first asylum, the country of first asylum may be
dispensed from issuing a document with a return clause”: ibid. at Art. VI(2).
275
At most, “in exceptional cases” the right to return can be limited to not less than three
months: Refugee Convention, Schedule, at [13.3]. See generally Chapter 6.6 at note 1148.
276
Abass and Mystris, “AU Legal Framework,” at 22.
277
Van Garderen and Ebenstein, “Africa,” at 189. “While the OAU preferred local integration
during the 1960s and 1970s, in more recent years a shift has occurred to promote
voluntary repatriation as the most appropriate solution to Africa’s problems”: ibid. at
194. See also B. Rutinwa, “The End of Asylum: The Changing Nature of Refugee Policies in
Africa,”(2002) 21 Refugee Survey Quarterly 12. In truth, much of the repatriation practice
in Africa is not voluntary in any meaningful sense: see C. D’Orsi, Asylum Seeker and
Refugee Protection in Sub-Saharan Africa: The Peregrination of a Persecuted Human Being
in Search of a Safe Haven (2015), at 271; see generally Chapter 4.1.

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 72 1 e volution of the refugee rights regime

1.5.3.2 European Union

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

278
“A treaty basis for an EU asylum policy was only established with the Treaty of
Amsterdam . . . in 1997. This instrument [in Art. 63] called for the development of
common minimum standards in all key areas of asylum law within a timeframe of 5
years . . . It also confirmed that all measures adopted must comply with international
human rights and refugee law, and it established the jurisdiction of the [Court of Justice of
the European Union] over asylum”: A. Klug, “Regional Developments: Europe,” in
A. Zimmermann ed., The 1951 Convention relating to the Status of Refugees and its 1967
Protocol (2011) 119 (Klug, “Europe”), at 128. See also P. Mathew and T. Harley, Refugees,
Regionalism, and Responsibility (2016) (Mathew and Harley, Refugees, Regionalism), at
36–37.
279
The Charter of Fundamental Rights of the European Union, OJ 2012 C326/02, Dec. 7,
2000 (“EU Charter”), at Art. 18.
280
Directive on standards for the qualification of third-country nationals or stateless persons
as beneficiaries of international protection, for a uniform status for refugees or for persons
eligible for subsidiary protection, and for the content of the protection granted, Doc. 2011/
95/EU, Dec. 13, 2011 (“EU Qualification Directive”).
281
Directive on minimum standards for giving temporary protection in the event of a mass
influx of displaced persons and on measures promoting a balance of efforts between
Member States in receiving such persons and bearing the consequences thereof, Doc.
2001/55/EC, July 20, 2001 (“EU Temporary Protection Directive”).
282
Regulation establishing the criteria and mechanisms for determining the Member State
responsible for examining an application for international protection lodged in one of the
Member States by a third-country national or a stateless person, Doc. 604/2013, June 26,
2013 (“EU Dublin Regulation”).
283
Directive laying down standards for the reception of applicants for international protec-
tion, Doc. 2013/33/EU, June 26, 2013 (“EU Reception Directive”).
284
Directive on common procedures for granting and withdrawing international protection,
Doc. 2013/32/EU, June 26, 2013 (“EU Procedures Directive”).
285
“It is generally accepted that the rights enshrined in the 1951 [Refugee] Convention and its
1967 Protocol . . . form part of [the] body of fundamental rights and are considered to be
general principles of EU law. Within asylum and migration law, the Treaty of Amsterdam
established an obligation for secondary legislation to comply with the 1951 [Refugee]

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 1.5 p ost-convention sources of refugee rights 73

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

Convention. The new [Treaty on the Functioning of the European Union] contains
a similar provision [in Article 78]”: Klug, “Europe,” at 135. See also F. Ippolito,
“Establishing the Common European Asylum System: ‘It’s a Long Way to Tipperary,’”
in A. Abass and F. Ippolito eds., Regional Approaches to the Protection of Asylum Seekers:
An International Law Perspective 113 (2016) (Ippolito, “Long Way to Tipperary”), at 116.
286
EU Qualification Directive, Preamble, at [4].
287
Ibid. at Art. 20(1). A draft recast of the EU Reception Directive proposes an acknowledg-
ment that the “Common European Asylum System (CEAS), which is based on the full and
inclusive application of the Geneva Convention Relating to the Status of Refugees of
28 July 1951, as supplemented by the New York Protocol of 31 January 1967, is
a constituent part of the European Union’s objective of progressively establishing an
area of freedom, security and justice open to those who, forced by circumstances,
legitimately seek protection in the Union”: Proposal for a Directive of the European
Parliament and of the Council laying down standards for the reception of applicants for
international protection (recast), Doc. COM(2016) 465 final, July 13, 2016 (“Draft Recast
of EU Reception Directive”).
288
Treaty Establishing the European Community, Doc. 2002/C 325.01, Dec. 24, 2002, at
Art. 68.
289
The Court declined to interpret Art. 31 of the Refugee Convention on the grounds that
there was no clear adoption of this provision into European Union law, thus depriving the
Court of jurisdiction: Dec. No. C-481/13 (CJEU, July 17, 2014), at [25]. As Bank observes,
“despite the exceptionally strong role accorded to the 1951 Convention and other relevant
treaties, the practical role accorded to international refugee law in the judgments of the
CJEU is rather marginal”: R. Bank, “The Potential and Limitations of the Court of Justice
of the European Union in Shaping International Refugee Law,” (2015) 27(2) International
Journal of Refugee Law 213, at 224–225.
290
Kreis Warendorf v. Ibrahim Alo and Amira Osso v. Region Hannover, Dec. Nos. C-443/14
and C-444/14 (CJEU, Mar. 1, 2016), at [28].
291
Ibid. at [29]. This does not mean, however, that the Refugee Convention is itself directly
enforceable as a matter of European Union law: MIF v. International Protection Appeals
Tribunal, [2018] IECA 36 (Ir. CA, Feb. 19, 2018), at [27].
292
The Common European Asylum System comprises an amalgam of primary and secondary
legislation. In general terms, as Klug observes, “[t]he 1999 Tampere Conclusions, which
emphasized ‘the absolute respect for the right to seek asylum, full and inclusive application
of the 1951 Convention,’ brought a welcome shift in emphasis and complemented the
control-driven approach to asylum policies with protection objectives. Nevertheless, the

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 74 1 e v o l u t i o n o f t h e re f u g e e r i g h t s r eg i m e

system – the European regime does not fully codify all refugee rights as matters
of binding EU law.293 And while in most cases the rights that are included
mirror those set by the Refugee Convention, there are instances in which
European norms are both more and less generous than international refugee
law requires.294
On the negative side of the refugee rights ledger, the right to undertake self-
employment295 is delayed longer than the Refugee Convention allows. The
freedom of movement of persons undergoing refugee status assessment is
subject to impermissible limitations,296 and the right of refugees lawfully in
a state party’s territory to choose their own place of residence is not

EU’s asylum policy has never lost its close connection with immigration control objectives
or the notion of what is referred to by critics as a ‘fortress Europe’”: Klug, “Europe,” at 128.
293
Of particular concern, EU asylum law fails to incorporate the duty not to penalize refugees
for unlawful entry or presence set by Art. 31: Qurbani v. Germany, Dec. No. C-481/13
(CJEU, July 17, 2014), at [24]. Among the other Refugee Convention rights with no
explicit parallel in the EU asylum regime are Arts. 2–15, 29, 30, and 34. In some instances,
of course, relevant protections may be advanced under general human rights norms. Yet as
Klug notes, “unlike the 1951 [Refugee] Convention, the [European Convention on
Human Rights] does not provide any guidance on the specific legal questions that arise
in a refugee context, such as determining the laws that govern a refugee’s personal status or
how to proceed if the refugee cannot obtain documentation on his or her family’s civil
status or his or her education and degrees”: Klug, “Europe,” at 124.
294
“Despite this clear policy objective and legal obligations, the asylum instruments adopted
during the first phase of the EU harmonization process do not fully comply with inter-
national or regional human rights and refugee law”: Klug, “Europe,” at 136. Nor did
the second phase leading to the 2011 recast of the EU Qualification Directive fully align EU
law with the refugee rights regime: S. Peers, “The Second Phase of the Common European
Asylum System: A Brave New World – or Lipstick on a Pig?,” Statewatch Analysis, Apr. 8,
2013 (Peers, “Second Phase”), at 16; Mathew and Harley, Refugees, Regionalism, at
194–198.
295
Only a “beneficiar[y] of international protection,” defined as “a person who has been
granted refugee status,” is entitled to engage in self-employment: EU Qualification
Directive, at Arts. 18 and 2(b). Even if self-employment is considered an aspect of “access
to the labour market” and hence regulated by Art. 15(1) of the EU Reception Directive, the
right to self-employment may still be delayed for up to nine months from the date on
which the protection application is lodged. In contrast, the Refugee Convention requires
access to self-employment for those merely lawfully present, even if not yet lawfully
staying, and hence must be granted as of the time when the applicant is admitted to
a status determination procedure: see Chapters 5.3 and 3.1.3.
296
Persons undergoing refugee status assessment may be “assigned” to an area for a variety of
reasons not authorized by the Refugee Convention, including “public interest” and “for the
swift processing and effective monitoring of his or her application for international protec-
tion”: EU Reception Directive, at Art. 7(1)–(2). An additional proposed reason for assign-
ment – “for the swift processing and effective monitoring of his or her procedure for
determining the Member State responsible” (Draft Recast of EU Reception Directive)
would also be outside the bounds of what is allowed by the Refugee Convention. It is
moreover of concern that the EU standard does not condition constraints on freedom of
movement on a showing of necessity as Art. 31(2) of the Refugee Convention requires. See
Chapter 4.2.4.

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 1.5 p ost-convention sources of refugee rights 75

respected.297 The right to access education is both substantively insufficient and

inappropriately delayed.298 EU asylum law also discriminates on the prohibited
basis of “country of origin,” peremptorily refusing to permit the recognition of
any EU national as a refugee.299 An especially egregious provision, which the
European Commission has suggested should be amended,300 authorizes the
reduction or withdrawal of many refugee rights if a refugee fails to abide by EU
asylum rules – including, for example, if she were to refuse to honor an (inter-
nationally unlawful) rule confining her to a particular part of the country.301 And
perhaps of greatest concern, the European system for the allocation of asylum
responsibility has forced refugees into inadequate national asylum systems with-
out regard for the requirements of the Refugee Convention.302 While the

297
Freedom of movement, but not choice of residence, is guaranteed under EU asylum law:
EU Qualification Directive, at Art. 33. But see Chapter 5.2.
298
There is a duty to “grant to minor children of applicants and to applicants who are minors
access to the education system under similar conditions as their own nationals for so long as
an expulsion measure against them or their parents is not actually enforced. Such education
may be provided in accommodation centres”: EU Reception Directive, at Art. 14(1). In
contrast, the Refugee Convention requires that refugees receive “the same treatment as is
accorded to nationals with respect to elementary education” – not “similar,” and not segre-
gated: see Chapter 4.8. More generally, while EU law provides that States “shall grant full
access to the education system to all minors granted international protection,” the definition
of a “beneficiar[y] of international protection” is limited to “a person who has been granted
refugee status”: EU Qualification Directive, at Arts. 27 and 2(b). Under Art. 22 of the Refugee
Convention, in contrast, all refugees – whether or not already formally recognized as such –
must be granted access to elementary education: see Chapters 4.8 and 3.1.1.
299
“The heavily criticized Protocol No. 29 [on Asylum for Nationals of Member States of the
European Union, Dec. 29, 2006, OJ 2006 C321 E, at 306–307] (the so-called ‘Aznar
Protocol’), adopted as a result of pressure from the Spanish government following the
recognition of ETA terrorists in France, restricts the right to asylum to third country
nationals. As a consequence, the asylum claims of EU nationals are to be treated as
manifestly unfounded. Furthermore, EU nationals are excluded from the scope of all
EU asylum instruments”: Klug, “Europe,” at 129. As Mathew and Harley observe, “[i]t is
assumed that all EU countries are safe countries of origin, which is demonstrably untrue.
Roma, who are theoretically EU citizens, face many forms of discrimination and even
persecution. Theoretically, EU citizens could just exercise their freedom of movement
rights within the EU to escape persecution, but in addition to the many barriers to Roma
exercising those freedoms, there have been disturbing mass expulsions of Roma from
a number of EU states, which highlights the importance of refugee status for those Roma
facing persecution”: Mathew and Harley, Refugees, Regionalism, at 38.
300
It is proposed that any reduction or withdrawal “should in all circumstances ensure access
to health care and a dignified standard of living for applicants”: Draft Recast of EU
Reception Directive.
301
EU Reception Directive, at Art. 20(1). The rights that may be reduced or withdrawn
include “housing, food and clothing provided in kind, or as financial allowances or in
vouchers, or a combination of the three, and a daily expenses allowance”: ibid. at Art. 2(g).
302
EU Dublin Regulation, at Art. 3. The international legal requirements for requiring
a refugee to accept protection in a state not of his or her choosing are discussed in
Hathaway and Foster, Refugee Status, at 30–49.

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European Court of Human Rights quickly intervened to constrain this

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

303
See e.g. MSS v. Belgium and Greece, Dec. No. 30696/09 (ECtHR, Jan. 21, 2011).
304
NS v. Secretary of State for the Home Department, Dec. Nos. C-411/10 and C-493/10
(CJEU, Dec. 21, 2011), at [94].
305
“The . . . argument that . . . only the existence of systemic flaws in the Member State
responsible is capable of affecting the obligation to transfer an asylum seeker to that
Member State is unfounded”: CK v. Slovenia, Dec. No. C-578/16 PPU (CJEU, Feb. 16,
2017), at [91]. In the same case, the Court clarified that states must implement Dublin
Regulation obligations with regard to the requirements of the EU Charter, taking account
for example of the duty to avoid inhuman or degrading treatment – meaning for example
that there is a duty to suspend a transfer if critical health considerations so require.
306
As correctly observed by the Supreme Court of the United Kingdom, “[t]he presumption [of
partner state respect for refugee rights] should not operate to stifle the presentation and
consideration of evidence . . . [regarding] the consequences of enforced concern. Nor
should it be required that, in order to rebut it, it must be shown, as a first and indispensable
requirement, that there is a systemic deficiency in the procedure and reception conditions
provided for the asylum seeker”: R (EM, Eritrea) v. Secretary of State for the Home
Department, [2014] UKSC 12 (UK SC, Feb. 19, 2014), at [41]. See generally Hathaway
and Foster, Refugee Status, at 39–49.
307
EU Reception Directive, at Art. 15. “[T]he labour market . . . must now be opened to
asylum seekers no later than nine months (instead of the original 12 months) after the
[asylum] application [is] lodged. Whereas the Commission and the European Parliament
proposed a six-month period, this provision of the [Reception] Directive improves access
to the labour market compared to the 2003 [version of the Reception] Directive”: Ippolito,
“Long Way to Tipperary,” at 137.
308
EU Qualification Directive, at Art. 30; EU Temporary Protection Directive, at Art. 13; EU
Reception Directive, at Arts. 17–19. “The Reception Directive . . . obliges all Member
States to offer basic reception arrangements to asylum seekers, including those Member
States that previously offered limited or non-functioning arrangements. However, its
standards remain minimal”: Klug, “Europe,” at 134. Yet “the revised [Reception]
Directive . . . expressly permits asylum-seekers to be treated less generously than
a Member State’s own citizens”: Peers, “Second Phase,” at 4.
309
All “beneficiaries of refugee status,” rather than simply those who are “lawfully staying” as
the Refugee Convention requires, are entitled to a Convention Travel Document: EU
Qualification Directive, at Art. 25. See also EU Reception Directive at Art. 6(5), authoriz-
ing states to issue travel documents for humanitarian reasons to persons whose refugee
status has not yet been verified. It has been proposed, however, that governments “should

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 1.5 p o s t - c o n v e n t i o n s o u r c e s of re f u g e e r i g h t s 77

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

1.5.3.3 Organization of American States

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

only provide applicants with a travel document when serious humanitarian or other
imperative reasons arise. The validity of travel documents should also be limited to the
purpose and duration needed for the reason for which they are issued”: Draft Recast of EU
Reception Directive.
310
Most critical is the EU Charter, at Art. 18. “The EU Charter . . . is generally understood to
reaffirm existing fundamental rights . . . [But] [d]espite its unclear wording and divergence
in official language versions, a number of arguments support the interpretation that Art.
18 . . . establishes an individual right which can be directly invoked before the national
courts of Member States”: Klug, “Europe,” at 129–130. See also EU Qualification Directive,
Preamble, at [16], and at Art. 13; EU Dublin Regulation, at Art. 3(1); EU Procedures
Directive, at Art. 6.
311
EU Procedures Directive. “The Procedures Directive includes a number of important
procedural guarantees which include, inter alia, the right to provisional residence for
asylum seekers, the prohibition of time limits for submission of asylum applications, the
necessity to provide reasons for rejections in writing, the right to legal aid, and the right to
an effective remedy against negative decisions. However, these rights are accompanied by
limitations and broad derogations”: Klug, “Europe,” at 134–135.
312
EU Reception Directive, at Arts. 9–11. 313 EU Qualification Directive, at Art. 22.
314
Ibid. at Art. 23; EU Temporary Protection Directive, at Art. 15; EU Dublin Regulation, at
Arts. 9–10. The Family Reunification Directive, EC Directive 2003/86, Sept. 22, 2003, OJ
2003 L251, also applies to refugees, enabling them for example to avoid some of the
restrictions normally imposed on migrants seeking visas for family members.
315
EU Qualification Directive, at Art. 24.
316
Ibid. at Art. 34. See Ippolito, “Long Way to Tipperary,” at 118.
317
EU Charter, at Art. 19(1).
318
The only remaining disparities “concern the rights to residence permits for beneficiaries of
international protection and their families (for ‘less than 3 years’ for beneficiaries of subsidiary
protection and for ‘at least 3 years’ for refugees) and social welfare (limited to core benefits for
beneficiaries of subsidiary protection)”: Ippolito, “Long Way to Tipperary,” at 118–119.
319
OAS Doc. OEA/Ser. L/II.66, Doc.10, Rev.1, at 190–193 (“OAS Cartagena Declaration”).
320
UNHCR, “OAS General Assembly: An Inter-American Initiative on Refugees,” (1986) 27
Refugees 5.

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 78 1 e v o l u t i o n o f t h e re f u g e e r i g h t s r eg i m e

The Cartagena Declaration contains a commitment to “ensur[ing] that the

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

321
OAS Cartagena Declaration, at Art. III(1).
322
The Inter-American Court of Human Rights has jurisdiction to interpret and apply Art.
22(7) of the American Convention on Human Rights, which codifies the right of “[e]very
person . . . to seek and be granted asylum in a foreign territory, in accordance with the
legislation of the state and international conventions, in the event he is being pursued for
political offenses or related common crimes”: American Convention on Human Rights,
1144 UNTS 123 (UNTS 17955), adopted at the Inter-American Specialized Conference on
Human Rights, San José, Costa Rica, November 22, 1969, entered into force July 18, 1978
(“American Convention”). In OAS states that have not adopted the American
Convention, the Inter-American Commission on Human Rights is entitled to scrutinize
laws and practices by reference to the American Declaration of the Rights and Duties of
Man, Art. XXVII of which provides that “[e]very person has the right, in case of pursuit
not resulting from ordinary crimes, to seek and receive asylum in foreign territory, in
accordance with the laws of each country and with international agreements”: American
Declaration of the Rights and Duties of Man, adopted by the Ninth International
Conference of American States, Bogotá, Colombia, 1948 (“American Declaration”). See
generally L. Jubilut, M. Vera Espinoza, and G. Mezzanotti eds., Latin America and Refugee
Protection: Regimes, Logics and Challenges (forthcoming 2021).
323
States commit themselves “[t]o ensure that the countries of the region establish
a minimum standard of treatment for refugees, on the basis of the provisions of the
1951 Convention and 1967 Protocol and of the American Convention on Human Rights,
taking into consideration the conclusions of the UNHCR Executive Committee, particu-
larly No. 22 on the Protection of Asylum Seekers in Situations of Large-Scale Influx”: OAS
Cartagena Declaration, at Art. III(8).
324
Ibid. at Arts. II(f) and III(5). It is noteworthy that the formulation of the duty of non-
refoulement included in both the American Declaration of the Rights and Duties of Man
and even the American Convention on Human Rights situates it in the narrower context
of persons fleeing abuse of criminal law authority. But this narrower regional human
rights protection cannot, of course, reduce the duty under Art. 33 of the Refugee
Convention which simultaneously binds states.
325
The states affirm “the voluntary and individual character of repatriation of refugees and
the need for it to be carried out under conditions of absolute safety, preferably to the place

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 1.5 p o s t - c o n v e n t i o n s o u r c e s o f re f u g e e r i g ht s 79

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

of residence of the refugee in his country of origin”: OAS Cartagena Declaration, at Art.
III(12).
326
Ibid. at Art. II(1).
327
States agree “[t]o reinforce programmes for protection of and assistance to refugees,
particularly in the areas of health, education, labour and safety,” and to study “the
possibilities of integrating them into the productive life of the country by allocating to
the creation or generation of employment the resources made available by the inter-
national community through UNHCR, thus making it possible for refugees to enjoy their
economic, social and cultural rights”: ibid. at Arts. II(h) and III(11).
328
See text at note 272. 329 OAU Cartagena Declaration, at Art. III(6).
330
See text at note 269. 331 OAU Cartagena Declaration, at Art. II(p).
332
Mathew and Harley report that “[a]lthough non-binding, the Cartagena Declaration has
been translated into the national laws of 14 countries [citing Argentina, Belize, Bolivia,
Brazil, Chile, Colombia, El Salvador, Guatemala, Honduras, Mexico, Nicaragua, Paraguay,
Peru, and Uruguay], and there is a periodic review process that has resulted in further
regional arrangements to improve refugee protection”: Mathew and Harley, Refugees,
Regionalism, at 42. “States seem to be inspired by the collective initiatives adopted by the
region and try to include the developments . . . [in] the national legal systems, which may
lead to improved protection . . . Some States have kept the original wording of the
Declaration and others have changed it, but maintaining the so-called ‘spirit of
Cartagena’ . . . has come to mean an approach to International Refugee Law and protec-
tion that is . . . broader in scope . . . more closely related to human rights and . . . more
beneficial in terms of people being protected given the added criteri[a] for refugee status”:
L. Jubilut, “Fora and Programmes for Refugees in Latin America,” in A. Abass and
F. Ippolito eds., Regional Approaches to the Protection of Asylum Seekers: An
International Law Perspective 245 (2016), at 245–246, 256.

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 80 1 e volution of the r efugee rights regime

This emphasis on promoting expanded protection for refugees under

national law has been buttressed by the work of regional human rights bodies
interpreting the regionally guaranteed right of individuals to “seek and
receive”333 or “seek and be granted”334 asylum in accordance with domestic
and international law. As Cantor and Barichello note, during the 1990s the
Inter-American Commission’s jurisprudence on the meaning of the right to
“asylum” shifted dramatically away from the traditional regional focus on
diplomatic asylum

such that it now interprets the right of asylum almost exclusively by

reference to refugee protection instruments. One important consequence
of this shift is that the right to “receive” asylum is now framed in terms of
the State obligations to provide protection to any person who objectively
fulfils the international law definition of a refugee . . . In the words of the
Commission, asylum under this framework is now “recognized by the
State rather than offered by it.”335

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

333
American Declaration, at Art. XXVII. 334 American Convention, at Art. 22(7).
335
D. Cantor and S. Barichello, “Protection of Asylum Seekers under the Inter-American
Human Rights System,” in A. Abass and F. Ippolito eds., Regional Approaches to the
Protection of Asylum Seekers: An International Law Perspective 267 (2016) (Cantor and
Barichello, “Protection”), at 275, citing Inter-American Commission on Human Rights,
“Report on Terrorism and Human Rights,” Doc. OEA/Ser.L/V/II.115/Doc 5 rev 1 corr,
at [394].
336
Cantor and Barichello, “Protection,” at 276–277.
337
Pacheco Tineo v. Bolivia, Ser. C No. 272 (IACtHR, Nov. 25, 2013). 338 Ibid. at [147].
339
Ibid. at [141].

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 1.5 p ost-convention sources of r efugee rights 81

Even if the 1951 Convention does not explicitly establish the right to
asylum as a right, it is considered to be implicitly incorporated into its
text, which mentions the definition of refugee, the protection against the
principle of non-refoulement, and a list of rights to which refugees have
access . . . With the protection provided by the 1951 Convention and its
1967 Protocol, the institution of asylum assumed a specific form and
mechanism at the global level: that of refugee status.340
The Inter-American Court thus concluded that states are required to take real
account of the special needs and rights of refugees and other non-citizens when
implementing their general duties to respect human rights under regional
law,341 an obligation which the Court has signaled it is prepared to enforce.342

1.5.3.4 League of Arab States

The League of Arab States initiative, grounded in the not-yet-in-force
Convention on Regulating Status of Refugees in the Arab Countries (“Arab
Refugee Convention”),343 “confirms” the provisions of the UN Refugee
Convention and Protocol, as well as those of the two UN Covenants on
Human Rights.344 This treaty contains a loose commitment to asylum, with
states agreeing “to exert every possible effort, within the limits of their
respective national legislation, to accept refugees.”345 There is a strong con-
firmation of the basic duty of non-refoulement, with the treaty explicitly
providing – in line with the Refugee Convention – that this duty applies for
the duration of risk in the home state.346 The Arab Convention also expands
the grounds for the duty of non-discrimination between and among refugees,
adding gender and political or social affiliation to the Refugee Convention’s
list of protected reasons.347
These commitments notwithstanding, the small number of rights provi-
sions in the Arab Convention suggest an overall retrenchment from the
Refugee Convention’s rights regime.348 Most fundamentally, states only
340
Ibid. at [139].
341
“Based on the special needs for protection of migrant persons and groups, this Court
interprets and provides content to the rights that the Convention recognizes to them, in
keeping with the evolution of the international corpus juris applicable to the human rights
of migrants”: ibid. at [129].
342
Indeed, it has recently been suggested that “[o]verall . . . the Inter-American system
appears to provide the most expansive set of protections for asylum seekers and refugees
of any human rights system”: Cantor and Barichello, “Protection,” at 290.
343
League of Arab States, Arab Convention on Regulating Status of Refugees in the Arab
Countries, adopted 1994, available at: www.refworld.org/docid/4dd5123f2.html, accessed
Jan. 15, 2020 (“Arab Refugee Convention”).
344
Ibid., Preamble, at [3]. 345 Ibid. at Art. 3. 346 Ibid. at Arts. 4, 9.
347
Ibid. at Art. 7.
348
League of Arab States “standards provide narrower protection than the 1951 UN Refugee
Convention, for example by having no specific provisions relating to a number of rights,
including the right to education, relief, housing and religion”: M. Rishmawi and

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 82 1 e v o l u t i o n o f t h e re f u g e e r i g h t s r eg i m e

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

1.5.3.5 Association of Southeast Asian Nations

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

J. Rashmawi, “The League of Arab States and the Protection of Migrants,” in F. Ippolito
and S. Trevisanut eds., Migration in the Mediterranean: Mechanisms of International
Cooperation 68 (2015) (Rishmawi and Rashmawi, “League of Arab States”), at 74.
349
Arab Refugee Convention, at Art. 5. 350 See Chapter 3.2.1. 351 See Chapter 3.3.
352
See text at note 270. 353 Arab Refugee Convention, at Art. 12.
354
Ibid. at Art. 13. The draft of a revised text for the Arab Refugee Convention prepared in
2012 deletes this provision: Rishmawi and Rashmawi, “League of Arab States,” at 77.
355
See text at note 271.
356
Communication from the Department of Legal Affairs of the League of Arab States, Feb.
27, 2017 (on file with the author). One-third of the member states of the Arab League must
ratify the treaty before it enters into force: Arab Refugee Convention, at Art. 17.
357
ASEAN Human Rights Declaration, adopted Nov. 18, 2012 (“ASEAN Declaration”).
358
ASEAN Declaration, Preamble, at [3]. 359 ASEAN Declaration, at [16].
360
The Bali Process on People Smuggling, Trafficking in Persons and Related Transnational
Crime, a forty-eight-member forum co-chaired by Australia and Indonesia, arose in the

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 1.5 p ost-convention sources of refugee rights 83

that build on practices pioneered under the Comprehensive Plan of

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

context of the 1999 Bangkok Declaration on Irregular Migration in which “international

migration is conceived as involving irregular migration and ‘smuggling and trafficking in
human beings.’ There is no reference to refugees or human rights in this document”:
S. Kneebone, “ASEAN and the Conceptualization of Refugee Protection in Southeastern
Asian States,” in A. Abass and F. Ippolito eds., Regional Approaches to the Protection of
Asylum Seekers: An International Law Perspective 295 (2016) (Kneebone, “ASEAN”), at
299. More recently, however, the organization’s Regional Support Office in Bangkok “has
commenced a number of projects for tackling irregular migration in the region and these
include significant refugee protection elements”: Mathew and Harley, Refugees,
Regionalism, at 51–52.
361
Despite the success of the Comprehensive Plan of Action for Indochinese Refugees
(“CPA”) in providing for protection by a system of global burden and responsibility
sharing, it is arguable that the CPA’s focus on extra-regional resettlement led to a belief
among Southeast Asian states that they ought not to be required to provide for durable
protection on their own territory: S. Davis, Legitimising Rejection: International Refugee
Law in Southeast Asia (2008), at 18. Reference is also sometimes made to the work of the
Asian-African Legal Consultative Organization in 1966 (the “Bangkok Principles on
Status and Treatment of Refugees”), though these recommendations of an advisory
group “are non-binding and hardly impact on refugee law and practice”: S. Blay,
“Regional Developments: Asia,” in A. Zimmermann ed., The 1951 Convention relating
to the Status of Refugees and its 1967 Protocol (2011) 145, at 149; see also Mathew and
Harley, Refugees, Regionalism, at 35.
362
ASEAN, “Political-Security Community Blueprint,” adopted at the Fourteenth Summit,
2009, at [13.3.1(ii)].
363
Kneebone, “ASEAN,” at 306. 364 ASEAN Declaration, at Art. 16.
365
See text at note 345.
366
The Declaration has also been criticized for failing to include refugees as an example of
a vulnerable and marginalized group, as ASEAN did in 1993: Kneebone, “ASEAN,” at 311.
367
See C. Renshaw, “The ASEAN Human Rights Declaration 2012,” (2013) 13(3) Human
Rights Law Review 557, at 559.

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 84 1 e volution of the r efugee rights regime

In addition to the provision on asylum, the Declaration also contains at least

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

1.5.4 International Human Rights Law

While there has been only modest evolution of the refugee rights regime since
1951, the broader field of international human rights law has undergone expo-
nential change. The Refugee Convention was just the second major human
rights convention adopted by the United Nations,370 the only contemporaneous
formulation of comparable substantive breadth being the Universal Declaration
of Human Rights – an unenforceable General Assembly resolution.371 Today, on
the other hand, binding international human rights law has been established by
the 1966 Human Rights Covenants, specialized universal accords, and regional
human rights regimes in Europe, Africa, and the Americas. As the UNHCR’s
Executive Committee has observed, the modern duty of protection therefore
goes beyond simply respecting the norms of refugee law; it includes also the
obligation “to take all necessary measures to ensure that refugees are effectively
protected, including through national legislation, and in compliance with their
obligations under international human rights and humanitarian law instruments
bearing directly on refugee protection.”372
368
ASEAN Declaration, at Art. 15. Refugee Convention Art. 31(2) – which does provide
a presumptive right of all refugees in a state not to be subject to restrictions on freedom of
movement – imposes certain criteria, set out in Art. 31(1), for entitlement to that
protection: see Chapters 4.2.1 and 4.2.4. The right of a refugee to choose her place of
residence only inheres with lawful presence: see Chapter 5.2.
369
Kneebone, “ASEAN,” at 313.
370
The Refugee Convention was preceded by the Convention on the Prevention and
Punishment of the Crime of Genocide, 78 UNTS 277 (UNTS 1021), adopted Dec. 9,
1948, entered into force Jan. 12, 1951.
371
UNGA Res. 217A(III), adopted Dec. 10, 1948.
372
UNHCR Executive Committee Conclusion No. 81, “General Conclusion on International
Protection” (1997), at [(e)], in UNHCR, “Conclusions on International Protection
Adopted by the Executive Committee of the UNHCR Programme, 1975–2017,” UN
Doc. HCR/IP/3/Eng/REV. 2017. Of particular importance, Art. 3 of the nearly universally
subscribed Convention on the Rights of the Child, 1577 UNTS 3 (UNTS 27531), adopted
Nov. 20, 1989, entered into force Sept. 2, 1990, requires that “[e]very legislative, adminis-
trative and judicial body or institution . . . apply the best interests [of the child] principle

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 1.5 p ost-convention sources of refugee rights 85

Since refugees are by definition non-citizens of their asylum country,

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

by systematically considering how children’s rights and interests are or will be affected by
their decisions or actions”: J. Pobjoy, “The Best Interests of the Child Principle as an
Independent Source of International Protection,” (2015) 64(2) International and
Comparative Law Quarterly 327. See generally J. Pobjoy, The Child in International
Refugee Law (2017).
373
The General Assembly adopted the Declaration on the Human Rights of Individuals Who
are Not Nationals of the Country in which They Live (UNGA Res. 40/144, adopted Dec.
13, 1985), but has yet to consider the codification of a binding catalog of rights specifically
for non-citizens.
374
2220 UNTS 3 (UNTS 39481), adopted Dec. 18, 1990, entered into force July 1, 2003. Only
fifty-five states have signed and/or ratified the treaty: https://treaties.un.org, accessed Dec.
21, 2020.
375
Importantly, however, the treaty provides that “the present Convention shall not apply
to . . . refugees and stateless persons, unless such application is provided for in the relevant
national legislation of, or international instruments in force for, the State Party con-
cerned”: ibid. at Art. 3(d).
376
In 1939, the ILO adopted Convention No. 66, the Convention concerning the
Recruitment, Placing and Conditions of Labor of Migrants for Employment, together
with the accompanying Recommendation No. 61, Recommendation concerning the
Recruitment, Placing and Conditions of Labor of Migrants for Employment.
Convention No. 66 never secured sufficient ratifications to enter into force. It was updated
in 1949 by Convention No. 97, the Convention concerning Migration for Employment
(Revised) and its Recommendation No. 86, Recommendation concerning Migration for
Employment (Revised). Convention No. 97 came into force shortly after the adoption of
the Refugee Convention, and is a parallel source of rights for refugees lawfully admitted to
residence in a state party. The ILO has since produced Convention No. 143, the Migrant
Workers (Supplementary Provisions) Convention, 1975 and the companion
Recommendation No. 151, Migrant Workers Recommendation, 1975. The 1975 accord
deals with migration in abusive conditions and provides for equality of opportunity and
treatment of migrant workers.

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 86 1 e volution of the r efugee rights regime

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

377
Recent non-binding standards of relevance include “ILO Declaration on Fundamental
Principles and Rights at Work,” International Labour Conference, 86th Sess., adopted
June 18, 1998 (Annex revised June 15, 2010); and International Labour Office, “ILO
Multilateral Framework on Labour Migration: Non-Binding Principles and Guidelines
for a Rights-Based Approach to Labour Migration” (2006). Earlier standards of note
include Recommendation No. 86 (1949) which proposes a model agreement for the
regulation of labor migration. Several of these non-binding standards speak explicitly to
the needs of refugees, regarded as a subset of persons who seek employment outside their
own country. First, some additional rights are added to the binding list of matters to be
guaranteed on terms of equality with nationals. These include rights to recognition of
travel documents, adaptation assistance, naturalization, participation in collective labor
agreements, private property, and of access to food and suitable housing. Second, equal
access to trades and occupations is established, but only “to the extent permitted under
national laws and regulations.” Third, migrant workers who are “lawfully within” the
territory are entitled to equality of treatment with respect to hygiene, safety, and medical
assistance; and, as far as the state regulates such matters, to weekly rest days, admission to
educational institutions, recreation, and welfare. Fourth, the model agreement extends
most of these equality rights to refugees’ family members, an entitlement not proposed for
the families of other alien workers. See International Labor Conference et al., Conventions
and Recommendations Adopted by the International Labor Conference, 1919-1966 (1966).
378
See generally F. Wolf, “Human Rights and the International Labour Organization,” in
T. Meron ed., Human Rights in International Law: Legal and Policy Issues (1984), at 273.
379
“[T]he traditional law of aliens grounded on diplomatic protection has been progressively
superseded by human rights law”: V. Chetail, “The Human Rights of Migrants in General
International Law: From Minimum Standards to Fundamental Rights,” (2013) 28(1)
Georgetown Immigration Law Journal 225 (Chetail, “Human Rights of Migrants”), at 242.
380
“The Rights of Non-citizens: Final Report of the Special Rapporteur,” UN Doc. E/CN.4/
Sub.2/2003/23, May 26, 2003.
381
As he has written more recently, “the principal objective is not to define and delineate
separate categories of non-citizens. It is to mobilize and implement human rights norms
and techniques that already apply across the various categories of non-citizens”:

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coordination among the standards applied by human rights supervisory

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

D. Weissbrodt, The Human Rights of Non-Citizens (2008), at 244. It is nonetheless true

that “[t]he criticism of international human rights law as ‘dispersive and fragmentary’ in
its protection of migrants remains valid, because migrants’ rights derive from many legal
sources”: S. Grant, “The Recognition of Migrants’ Rights Within the UN Human Rights
System: The First 60 Years,” in M. Dembour and T. Kelly eds., Are Human Rights for
Migrants? Critical Reflections on the Status of Irregular Migrants in Europe and the United
States 25 (2011) (Grant, “Migrants’ Rights”), at 47.
382
“The Rights of Non-citizens: Final Report of the Special Rapporteur,” UN Doc. E/CN.4/
Sub.2/2003/23, May 26, 2003, at [31]–[33], [39]–[40].
383
Racial Discrimination Convention, at Art. 1(1).
384
“The Rights of Non-citizens: Final Report of the Special Rapporteur,” UN Doc. E/CN.4/
Sub.2/2003/23, May 26, 2003, at [34].
385
“Article 1, paragraph 2 [of the Convention on the Elimination of All Forms of Racial
Discrimination] provides for the possibility of differentiating between citizens and non-
citizens . . . [But it] must be construed so as to avoid undermining the basic prohibition of
discrimination; hence it should not be interpreted to detract in any way from the rights
and freedoms recognized and enunciated in particular in the Universal Declaration of
Human Rights, the International Covenant on Economic, Social and Cultural Rights and
the International Covenant on Civil and Political Rights . . . [D]ifferential treatment based
on citizenship or immigration status will constitute discrimination if the criteria for such
differentiation, judged in the light of the objectives and purposes of the [Racial
Discrimination] Convention, are not applied pursuant to a legitimate aim, and are not
proportional to the achievement of this aim”: UN Committee on the Elimination of Racial
Discrimination, “General Recommendation XXX: Discrimination against Non-citizens”
(2004), UN Doc. CERD/C/64/Misc.11/rev.3, at [1], [2], [4].
386
See generally Grant, “Migrants’ Rights,”; and Chetail, “Human Rights of Migrants,” at
239–242. For example, in relation to the most widely ratified international human rights
treaty – the Convention of the Rights of the Child – the supervisory body has insisted that
unless clearly stated otherwise in the treaty, children’s rights must “be available to all
children – including asylum-seeking, refugee and migrant children – irrespective of their
nationality, immigration status or statelessness”: UN Committee on the Rights of the
Child, “General Comment 6: Treatment of Unaccompanied and Separated Children
outside their Countries of Origin” (2009), UN Doc. CRC/GC/2005/6, at [12].

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

387
http://indicators.ohchr.org, accessed Jan. 15, 2020, and UNHCR, “Global Trends: Forced
Displacement in 2018,” at Annex, Table 1. The two most critical exceptions are Malaysia
(which hosts some 120,000 refugees) and South Sudan (which hosts more than 290,000
refugees).
388
In the result, guarantees against discrimination apply: see Chapter 1.5.5.
389
One commentator grounded his analysis in the notion of nationality as a “distinction of
any kind”: Lillich, Rights of Aliens, at 46.
390
UN Human Rights Committee, “General Comment No. 15: The Position of Aliens under
the Covenant” (1986), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at 140, [2].
391
The exceptions are that only citizens are granted the rights to vote, to run for office, and to
enter the public service: Civil and Political Covenant, at Art. 25.
392
UN Human Rights Committee, “General Comment No. 31: The Nature of the General
Legal Obligations of States Parties to the Covenant” (2004), UN Doc. HRI/GEN/1/Rev.7,
May 12, 2004, at 192, [10]. This understanding was explicitly endorsed by the Supreme
Court of Canada in Nevsun Resources Ltd. v. Gize Yebeyo Araya et al., [2020] SCC 5 (Can.
SC, Feb. 28, 2020), at [119].

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 1.5 p os t-convention sources of refugee rights 89

personal status, access to naturalization, immunity from penalization for

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

393
Even as he argues the primacy of human rights law to protect migrants, Chetail forth-
rightly concedes that “[a] non-citizen must be lawfully within the territory of a state in
order to benefit within that territory from the right to liberty of movement and freedom to
choose his/her residence. But, even when lawfully within the territory, he or she may still
be deported from that territory as long as some basic conditions and procedural guaran-
tees are fulfilled”: Chetail, “Human Rights of Migrants,” at 245. Under the Refugee
Convention, in contrast, these concerns are more thoroughly catered for: Refugee
Convention, at Arts. 31, 32, 33.
394
Compare Civil and Political Covenant, at Arts. 14–16, with the Refugee Convention, at
Art. 16.
395
The rights which cannot be suspended are the rights to life; freedom from torture, cruel,
inhuman, or degrading treatment or punishment; freedom from slavery; freedom from
imprisonment for contractual breach; freedom from ex post facto criminal law; recogni-
tion as a person; and freedom of thought, conscience, and religion: Civil and Political
Covenant, at Art. 4(2).
396
Ordinarily, emergency derogation must not be imposed in a discriminatory way.
However, the grounds of impermissible discrimination for emergency derogation pur-
poses explicitly omit reference to several of the general grounds on which discrimination is
prohibited under the Civil and Political Covenant. The omissions include discrimination
on the grounds of political or other opinion; national origin; property; birth or other
status. Compare Civil and Political Covenant, at Arts. 2(1) and 4(1). A UN Special
Rapporteur on the Rights of Non-Citizens has suggested that “[t]his omission, according
to the travaux préparatoires, was intentional because the drafters of the Covenant under-
stood that States may, in time of national emergency, have to discriminate against non-
citizens within their territory”: UN Commission on Human Rights, “Preliminary Report
of the Special Rapporteur on the Rights of Non-Citizens,” UN Doc. E/CN.4/Sub.2/2001/
20, June 6, 2001, at [37].
397
Refugee Convention, at Art. 9. See generally Chapter 3.5.1.

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 90 1 e volution of the r efug ee rights regime

The continuing value of refugee-specific rights is even more apparent in

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

398
“[T[he position of migrants under general international law is more precarious when it
comes to economic, social, and cultural rights”: Chetail, “Human Rights of Migrants,”
at 247.
399
International Covenant on Economic, Social and Cultural Rights, 993 UNTS 3 (UNTS
14531), adopted Dec. 16, 1966, entered into force Jan. 3, 1976.
400
See UN Committee on Economic, Social and Cultural Rights, “General Comment No. 20:
Non-discrimination in Economic, Social and Cultural Rights,” (2009) UN Doc. E/C.12/
GC/20, July 2, 2009, at [3], [5], [30]. Two kinds of distinction are sometimes asserted. First,
while state parties to the Civil and Political Covenant agree to grant rights to all without
discrimination, the contemporaneously drafted Economic and Social Covenant requires
only an undertaking that whatever rights are granted may be exercised without discrimin-
ation: compare Civil and Political Covenant, at Art. 2(1) and Economic and Social
Covenant, at Art. 2(2). Superficially, this would suggest that whereas the Civil and
Political Covenant prohibits limitation of the category of rights holders, the formulation
in the Economic and Social Covenant does not. In fact, however, the various rights in the
Economic and Social Covenant are granted to “everyone” or “all,” nullifying any practical
distinction between the non-discrimination clauses in the two Covenants. Second, the
non-discrimination provision in the Civil and Political Covenant seems to be more
inclusively framed than its counterpart in the Economic and Social Covenant. Whereas
the former prohibits “distinction of any kind, such as” a distinction based on the listed
forms of status, the Economic and Social Covenant prohibits “discrimination of any kind
as to” the enumerated types of status. But unless it is suggested that no differentiation,
even on patently reasonable grounds, can ever be permissible in relation to rights under
the Civil and Political Covenant, no concrete consequences flow from use of the word
“distinction” rather than “discrimination.” Nor does it matter that one Covenant prohibits
discrimination “such as” that based on certain grounds, while the other proscribes
discrimination “as to” those same grounds. Because the list under both Covenants
includes the generic term “other status,” the net result in each case is an inclusive duty
of non-discrimination, including, for example, non-discrimination in relation to refugees
and other aliens.
401
For example, the Committee on Economic, Social and Cultural Rights has made clear that
“[t]he right to adequate housing applies to everyone. While the reference to ‘himself and
his family’ reflects assumptions as to gender roles and economic activity patterns com-
monly accepted in 1966 when the Covenant was adopted, the phrase cannot be read today
as implying any limitations upon the applicability of the right to individuals or to female-
headed households or other such groups”: UN Committee on Economic, Social and
Cultural Rights, “General Comment No. 4: The Right to Adequate Housing” (1991), UN
Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [6]. See also UN Committee on Economic,
Social and Cultural Rights, “General Comment No. 12: The Right to Adequate Food”
(1999), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [1]: “The human right to adequate
food is of crucial importance for the enjoyment of all rights. It applies to everyone; thus the
reference in article 11.1 to ‘himself and his family’ does not imply any limitation upon the
applicability of this right to individuals or to female-headed households.”

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status.”402 The Committee on Economic, Social and Cultural Rights has

moreover made emphatically clear that refugees, whatever their formal
status, must enjoy rights set by the Economic and Social Covenant without
discrimination:

All people under the jurisdiction of the State concerned enjoy Covenant
rights. That includes asylum seekers and refugees, as well as other
migrants, even when their situation in the country concerned is
irregular . . . [P]rotection from discrimination cannot be made conditional
upon an individual having a regular status in the host country.403

But rather than being conceived as requiring immediate implementation,404

generally applicable socioeconomic rights set only duties of progressive, non-
discriminatory implementation.405 Under the Economic and Social Covenant,
402
Economic and Social Covenant, at Art. 2(2). One commentator has argued that the enumer-
ated grounds on which discrimination is prohibited are exhaustive: A. Bayefsky, “The
Principle of Equality or Non-Discrimination in International Law,” (1990) Human Rights
Law Journal 1, at 5. The better position notes the clearly open-ended nature of the reference to
“discrimination of any kind as to . . . other status,” and concludes that the list of prohibited
grounds is illustrative: M. Craven, The International Covenant on Economic, Social and
Cultural Rights: A Perspective on its Development (1995) (Craven, ICESCR Commentary), at
168. See also A. Chapman, “A ‘Violations Approach’ for Monitoring the International
Covenant on Economic, Social and Cultural Rights,” (1996) 18 Human Rights Quarterly 23,
at 54–55: “It is notable that in a world which offers few protections of ‘illegal immigrants,’ the
[Economic, Social and Cultural Rights] Committee has disagreed with the interpretation of at
least one government (the government of Hong Kong) that asylum-seekers are not entitled to
enjoy . . . rights in view of their status as ‘illegal immigrants.’”
403
UN Committee on Economic, Social and Cultural Rights, “Duties of States towards Refugees
and Migrants under the International Covenant on Economic, Social and Cultural Rights,”
UN Doc. E/C.12/2017/1, Mar. 13, 2017, at [3], [6]. Indeed, “a lack of available resources
cannot be considered as an objective and reasonable justification for difference in treatment
‘unless every effort has been made to use all resources that are at the State party’s disposition in
an effort to address and eliminate the discrimination, as a matter of priority’”: ibid. at [5]. See
also UN Committee on Economic, Social and Cultural Rights, “General Comment No. 20:
Non-discrimination in Economic, Social and Cultural Rights” (2009), UN Doc. E/C.12/GC/
20, July 2, 2009, at [30] (“The Covenant rights apply to everyone including non-nationals,
such as refugees [and] asylum seekers”); and UN Committee on Economic, Social and
Cultural Rights, “General Comment No. 15: The Right to Water” (2002), UN Doc. HRI/
GEN/1/Rev.7, May 12, 2004, at [16], noting the duty to meet the needs of refugees for water on
terms of equality with those of citizens.
404
In the case of the Civil and Political Covenant, the Human Rights Committee has observed
that “[t]he requirement under article 2, paragraph 2, to take steps to give effect to the
Covenant rights is unqualified and of immediate effect. A failure to comply with this
obligation cannot be justified by reference to political, social, cultural or economic
considerations within the State”: UN Human Rights Committee, “General Comment
No. 31: The Nature of the General Legal Obligations Imposed on States Parties to the
Covenant” (2004), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at 192, [14].
405
As Saul et al. observe, “[t]he tone and nature of the demands made of states are quite
different from the equivalent Article 2(1) in the [Civil and Political Covenant], being more

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 92 1 e v o l u t i o n o f t h e re f u g e e r i g h t s r e g i m e

states are required simply to “take steps” progressively to realize economic, social
and cultural rights to the extent possible within the limits of their resources.406
This duty of non-discriminatory, progressive implementation seeks to strike
a delicate balance:

It is on the one hand a necessary flexibility device, reflecting the realities of

the real world and the difficulties involved for any country in ensuring full
realization of economic, social and cultural rights. On the other hand, the
phrase must be read in the light of the overall objective, indeed the raison
d’être, of the Covenant which is to establish clear obligations for States
parties in respect of the full realization of the rights in question. It thus
imposes an obligation to move as expeditiously and effectively as possible
towards that goal. Moreover, any deliberately retrogressive measures in
that regard would require the most careful consideration and would need
to be fully justified by reference to the totality of the rights provided for in
the Covenant and in the context of the full use of the maximum available
resources.407

Importantly, even this fluid standard is normally breached by the active

withdrawal of rights.408 More generally, the fact that rights need only be
progressively implemented “does not mean that States parties may indefinitely

exhortatory than mandatory, more progressive than immediate”: B. Saul et al., The
International Covenant on Economic, Social and Cultural Rights: Commentary, Cases,
and Materials (2014) (Saul, ICESCR Commentary), at 134.
406
Economic and Social Covenant, at Art. 2(1). “The term ‘progressive realization’ is often
used to describe the intent of this phrase. The concept of progressive realization consti-
tutes a recognition of the fact that full realization of all economic, social and cultural rights
will generally not be able to be achieved in a short period of time”: UN Committee on
Economic, Social and Cultural Rights, “General Comment No. 3: The Nature of States
Parties’ Obligations” (1990), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [9]. The
Committee has helpfully explained the measures it uses to assess “adequate” or “reason-
able” steps to implement Covenant rights: UN Committee on Economic, Social and
Cultural Rights, “An Evaluation of the Obligation to Take Steps to the ‘Maximum of
Available Resources’ under an Optional Protocol to the Covenant,” UN Doc. E/C.12/2007/
1, Sept. 21, 2007, at [8].
407
UN Committee on Economic, Social and Cultural Rights, “General Comment No. 3: The
Nature of States Parties’ Obligations” (1990), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004,
at [9].
408
The Committee on Economic, Social and Cultural Rights has specifically adumbrated
standards that are to be applied in the event that “resource constraints” are asserted as
justification for retrogressive steps: UN Committee on Economic, Social and Cultural
Rights, “An Evaluation of the Obligation to Take Steps to the ‘Maximum of Available
Resources’ under an Optional Protocol to the Covenant,” UN Doc. E/C.12/2007/1, Sept.
21, 2007, at [10]. In such circumstances, it has insisted that “the burden of proof rests on
the State party to show that such a course of action was based on the most careful
consideration and can be justified by reference to the totality of the rights provided for
in the Covenant and by the fact that full use was made of available resources”: ibid. at [9].

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postpone taking action.”409 To the contrary, there is a duty to give priority to

the realization of economic, social, and cultural rights,410 and to ensure that
their realization is subject to meaningful legal accountability and respectful of
other requirements of human rights law:
[T]his flexibility coexists with the obligation upon each State party to use
all the means at its disposal to give effect to the rights recognized in the
Covenant. In this respect, the fundamental requirements of international
human rights law must be borne in mind. Thus the Covenant norms must
be recognized in appropriate ways within the domestic legal order, appro-
priate means of redress, or remedies, must be available to any aggrieved
individual or group, and appropriate means of ensuring governmental
accountability must be put in place.411
Of critical importance in the refugee context, a state may not claim exemp-
tion from its duties under the Economic and Social Covenant on grounds of
resource insufficiency unless it proves that it has sought out, and been denied,
international aid sufficient to meet its core obligations under the Covenant.412
Regrettably, though, there is no corresponding obligation on the part of
409
UN Committee on Economic, Social and Cultural Rights, “Duties of States towards
Refugees and Migrants under the International Covenant on Economic, Social and
Cultural Rights,” UN Doc. E/C.12/2017/1, Mar. 13, 2017, at [4].
410
See D. Trubek, “Economic, Social, and Cultural Rights in the Third World,” in T. Meron
ed., Human Rights in International Law: Legal and Policy Issues 205 (1984), at 215: “I
believe the available resources language should be read as establishing a priority for social
welfare. Given the purpose of the Economic Covenant, it is hard to see how the alternative
reading would make any sense. It is clear that the drafters of the Economic Covenant
wished to impose obligations on states. Yet if the only obligation arising from the
Economic Covenant was that a state could spend what it wanted on social welfare, then
this would be no obligation at all and the drafters would have failed in their goal. This
reasoning from purpose is supported by the legislative history.”
411
UN Committee on Economic, Social and Cultural Rights, “General Comment No. 9: The
Domestic Application of the Covenant” (1998), UN Doc. HRI/GEN/1/Rev.7, May 12,
2004, at [2].
412
“A final element of article 2(1), to which attention must be drawn, is that the undertaking
given by all States parties is ‘to take steps, individually and through international assistance
and cooperation, especially economic and technical’”: ibid. at [13]. The Committee notes
that the phrase “to the maximum of its available resources” was intended by the drafters of
the Covenant to refer to both the resources existing within a state and those available from
the international community through international cooperation and assistance: ibid.
More generally, “[a] failure to remove differential treatment on the basis of a lack of
available resources is not an objective and reasonable justification unless every effort has
been made to use all resources that are at the State party’s disposition in an effort to
eliminate the discrimination, as a matter of priority”: UN Committee on Economic, Social
and Cultural Rights, “General Comment No. 20: Non-discrimination in Economic, Social
and Cultural Rights” (2009), UN Doc. E/C.12/GC/20, July 2, 2009, at [13]. See also UN
Committee on Economic, Social and Cultural Rights, “An Evaluation of the Obligation to
Take Steps to the ‘Maximum of Available Resources’ under an Optional Protocol to the
Covenant,” UN Doc. E/C.12/2007/1, Sept. 21, 2007, at [10(f)], indicating that the

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 94 1 e volution of the r efugee rights regime

wealthier countries to provide the needed resources. Reflecting the failure to

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

Committee will take account of efforts to seek international aid in determining whether
a state’s failure to meet its obligations was justifiable.
413
To date, only a non-binding declaration on this subject has been adopted. See “Declaration
on the Right to Development,” UNGA Res. 41/128 (1986).
414
“Although there seems to be agreement that the rights in the Covenant are contingent, to
a degree, on the provision of international assistance, the nature, scope, and obligatory
nature of such assistance is unclear”: Craven, ICESCR Commentary, at 145.
415
The Committee on Economic, Social and Cultural Rights has framed the duty in typically
vague terms. “The Committee wishes to emphasize that in accordance with Articles 55 and
56 of the Charter of the United Nations, with well-established principles of international
law, and with the provisions of the Covenant itself, international cooperation for develop-
ment and thus for the realization of economic, social and cultural rights is an obligation of
all States. It is particularly incumbent upon those States which are in a position to assist
others in this regard. The Committee notes in particular the importance of the Declaration
on the Right to Development adopted by the General Assembly in its resolution 41/128 of
4 December 1986 and the need for States parties to take full account of all of the principles
recognized therein. It emphasizes that, in the absence of an active programme of inter-
national assistance and cooperation on the part of all those States that are in a position to
undertake one, the full realization of economic, social and cultural rights will remain an
unfulfilled aspiration in many countries”: UN Committee on Economic, Social and
Cultural Rights, “General Comment No. 3: The Nature of States Parties’ Obligations”
(1990), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [14]. But see Saul, ICESCR
Commentary, at 140: “[T]he assertion that there are ‘well-established principles of inter-
national law’ that oblige states to so cooperate is simply incorrect. That states ought to so
cooperate is a principle often and rightly advanced in legal and non-legal circles. That,
beyond this, there may be grounds to argue that there already exists (or nearly so) a duty to
cooperate in international law is also a contention not infrequently advanced in inter-
national legal debates. But to maintain still further, not only that the principle exists (the
‘ought’ being now accepted as an ‘is’), but that it is a matter ‘well-established,’ is
hyperbole.”
416
The most direct conclusion of the Committee is that “given that some diseases are easily
transmissible beyond the frontiers of a State, the international community has a collective
responsibility to address this problem. The economically developed States parties have
a special responsibility and interest to assist the poorer developing States in this regard”:
UN Committee on Economic, Social and Cultural Rights, “General Comment No. 14: The
Right to the Highest Attainable Standard of Health” (2000), UN Doc. HRI/GEN/1/Rev.7,
May 12, 2004, at [40]. See generally Craven, ICESCR Commentary, at 146–147.
417
At the 2001 session of the UN Commission on Human Rights, a Cuban proposal to
establish an independent expert to monitor the fulfillment by developed countries of their
political pledge to allocate 0.7 percent of their GNP to development assistance was

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 1.5 p o s t - c o n v e n t i o n s o u r c e s o f re f u g e e r i g h t s 95

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

abandoned for lack of support: M. Dennis, “The Fifty-Seventh Session of the UN

Commission on Human Rights,” (2002) 96(1) American Journal of International Law 181.
418
“In the spirit of Article 56 of the Charter of the United Nations, the specific provisions
contained in articles 11, 2.1, and 23 of the Covenant and the Rome Declaration of the
World Food Summit, States parties should recognize the essential role of international
cooperation and comply with their commitment to take joint and separate action to
achieve the full realization of the right to adequate food. In implementing this commit-
ment, States parties should take steps to respect the enjoyment of the right to food in other
countries, to protect that right, to facilitate access to food and to provide the necessary aid
when required. States parties should, in international agreements whenever relevant,
ensure that the right to adequate food is given due attention and consider the development
of further international legal instruments to that end”: UN Committee on Economic,
Social and Cultural Rights, “General Comment No. 12: The Right to Adequate Food”
(1999), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [36].
419
UN Committee on Economic, Social and Cultural Rights, “General Comment No. 15: The
Right to Water” (2002), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [34].
420
“Depending on the availability of resources, States should facilitate access to essential
health facilities, goods and services in other countries wherever possible and provide the
necessary aid when required. States parties should ensure that the right to health is given
due attention in international agreements and, to that end, should consider the develop-
ment of further legal instruments. In relation to the conclusion of other international
agreements, States parties should take steps to ensure that these instruments do not
adversely impact upon the right to health. Similarly, States parties have an obligation to
ensure that their actions as members of international organizations take due account of
the right to health”: UN Committee on Economic, Social and Cultural Rights, “General
Comment No. 14: The Right to the Highest Attainable Standard of Health” (2000), UN
Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [39].
421
“States have a joint and individual responsibility, in accordance with the Charter of the
United Nations, to cooperate in providing disaster relief and humanitarian assistance in
times of emergency, including assistance to refugees and internally displaced persons.
Each State should contribute to this task in accordance with its ability”: UN Committee on
Economic, Social and Cultural Rights, “General Comment No. 12: The Right to Adequate
Food” (1999), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [38]. “In disaster relief and
emergency assistance, including assistance to refugees and displaced persons, priority
should be given to Covenant rights, including the provision of adequate water”: UN
Committee on Economic, Social and Cultural Rights, “General Comment No. 15: The
Right to Water” (2002), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [34].
422
“While there would appear to be considerable scope for strengthening States’ external
obligations . . . it is an area in which States are unlikely, in the foreseeable future, to agree to

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 96 1 e volution of the r efugee rights regime

for this caution with regard to the notion of a duty to provide development
assistance:

During the drafting of the Covenant, Chile claimed that “international

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

There is therefore what amounts to an asymmetrical approach to foreign aid in

international law. A government must accept available aid to enable it to
implement the rights of persons under its jurisdiction, but states with the
means to satisfy even the most basic survival interests of destitute persons abroad
are under no concomitant legal duty to share their wealth.424 This skewed optic
was recently specifically affirmed in the context of duties owed to refugees:

International assistance and cooperation, in particular, are required to

allow States facing a sudden influx of refugees and migrants to comply
with their core obligations . . . The Committee is aware that, when con-
fronted by large flows of migrants fleeing conflict or persecution, some
States face a heavier burden than others. It sees any measure that States
parties adopt to support the realization of the Covenant rights on the
territory of other States as contributing to the aims of the Covenant.425

The one legal constraint which does appear to exist, however, is that
whatever international aid a state agrees to provide must be granted and
administered on a non-discriminatory basis. In line with the substantive
content traditionally understood to comprise the duty of non-
discrimination,426 the importance of allocating aid on the basis of relative
specific demands on the amount of distribution of aid to third countries”: Craven, ICESCR
Commentary, at 150.
423
Ibid. at 148–149.
424
“Even if duties do exist, what sort of obligations flow from the duty in a world of mass
poverty and deprivation with limited global resources? Can they be identified with any
precision? Who is the duty-bearer when different States have the capacity to assist?”:
M. Langford et al., “Extra-Territorial Duties in International Law,” in M. Langford et al.
eds., Global Justice, State Duties: The Extra-Territorial Scope of Economic, Social and
Cultural Rights in International Law (2013), at 52.
425
The unwillingness to suggest a clear duty to assist was recently made clear in the refugee
context: UN Committee on Economic, Social and Cultural Rights, “Duties of States
towards Refugees and Migrants under the International Covenant on Economic, Social
and Cultural Rights,” UN Doc. E/C.12/2017/1, Mar. 13, 2017, at [18].
426
See generally Chapter 1.5.5.

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 1.5 p o s t - c o n v e n t i o n s o u r c e s o f re f u g e e r i g ht s 97

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

427
While still employing irresolute language, the Committee has concluded that “[p]riority in
the provision of international medical aid, distribution and management of resources,
such as safe and potable water, food and medical supplies, and financial aid should be
given to the most vulnerable or marginalized groups of the population”: UN Committee
on Economic, Social and Cultural Rights, “General Comment No. 14: The Right to the
Highest Attainable Standard of Health” (2000), UN Doc. HRI/GEN/1/Rev.7, May 12,
2004, at [40]. With respect to the aid provided by international organizations, see ibid.
at [65].
428
See Chapter 1.5.5 at note 462 ff.
429
There is, of course, also the question of whether the duty of non-discrimination binds
a state in its extraterritorial actions. It has been persuasively argued that there is no
principled reason to release states which act extraterritorially from legal obligations that
would otherwise circumscribe the scope of their authority. According to Meron, “[i]n view
of the purposes and objects of human rights treaties, there is no a priori reason to limit
a state’s obligation to respect human rights to its national territory. Where agents of the
state, whether military or civilian, exercise power and authority (jurisdiction, or de facto
jurisdiction) over persons outside national territory, the presumption should be that the
state’s obligations to respect the pertinent human rights continues. That presumption
could be rebutted only when the nature and content of a particular right or treaty language
suggest otherwise”: T. Meron, “Extraterritoriality of Human Rights Treaties,” (1995) 89(1)
American Journal of International Law 78, at 80–81.
430
See Chapter 1.5.5 at note 471 ff.
431
“[T]he Committee avoids any direct attribution of responsibility or duty on the part of
richer states in particular, or the international community more generally, to provide
assistance and cooperation to less well-off states . . . It is, in other words, largely up to the
individual [poorer] state to avail itself of those opportunities for assistance that are
available, rather than there being any specific obligation on other countries or inter-
national organizations to make such assistance available, still less any duty on them to
render assistance”: Saul, ICESCR Commentary, at 138–139.

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 98 1 e volution of the r efugee rights regime

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

432
Ibid. at 215. The authors seek to constrain the impact of this analysis by invoking the
drafting history to argue that “Article 2(3) was . . . intended to allow developing countries to
address structural inequalities in their economies which resulted from colonialism [emphasis
added]” and that “Article 2(3) would therefore seem to refer to countries which are
economically weak and which were formerly subject to colonial rule”: ibid. at 215–216.
While reliance on the travaux is of course appropriate (see Chapter 2.3), they are simply one
component of what should be an interactive process of treaty interpretation. Evidence of
historical intent should in particular be balanced against more contemporary evidence of the
social and legal context within which original intentions are now to be implemented, as well
as the plain language of the text. It is thus doubtful that a country such as Afghanistan –
never colonized but generally recognized as one of the “least developed countries” (https://
unctad.org/topic/vulnerable-economies/least-developed-countries/list, accessed Dec. 21,
2020) – should be excluded from the category of “developing countries” for purposes of
Art. 2(3).
433
This leads Warren McKean to conclude that the language of Art. 2(3) “is unconscionably
vague. It must therefore be regarded as an unfortunate inclusion in a covenant of this
nature and likely to cause invidious and unreasonable distinctions to be made against
aliens on the ground of their foreign nationality”: W. McKean, Equality and
Discrimination under International Law (1983) (McKean, Equality and Discrimination),
at 201.
434
UN Committee on Economic, Social and Cultural Rights, “Duties of States towards
Refugees and Migrants under the International Covenant on Economic, Social and
Cultural Rights,” UN Doc. E/C.12/2017/1, Mar. 13, 2017, at [8]. It is regrettable that the
Committee does not provide clear reasoning for its position that education is not properly
deemed an economic right subject to Art. 2(3).

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 1.5 pos t-co nvention so urces of refugee rights 99

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

435
Despite the open-ended nature of the text of Art. 2(3), Chetail is right to note that the
clause is permissive, not mandatory; may only be invoked by “developing countries”;
applies only to economic, not to social and cultural, rights; may not be relied upon to
justify breach of obligations under other treaties; and may only be resorted to for
economic imperatives: Chetail, “Human Rights of Migrants,” at 249–251. More generally,
he argues that the historical intention of the clause was quite narrow – namely to address
the risk of continuing economic influence of non-nationals in newly independent states:
ibid. at 248.
436
While conceding the “admittedly significant limitations of the [Economic and Social]
Covenant” and that it is “not clear what Art. 2(3) means,” Mathew nonetheless provides
a thoughtful argument that vulnerable groups such as refugees ought not to be caught by
the Art. 2(3) limitation, drawing on for example the historical concern that motivated the
provision and the overarching human rights purpose of the clause: P. Mathew, Reworking
the Relationship between Asylum and Employment (2012), at 104 and 109 ff. See also
E. Lester, “Work, the Right to Work, and Durable Solutions: A Study on Sierra Leonean
Refugees in The Gambia,” (2005) 17(2) International Journal of Refugee Law 331, at 350.
A contrary view is, however, taken in McKean, Equality and Discrimination, at 201.
437
“The essential minimum content of each right should be preserved in all circumstances
and the corresponding duties extended to all people under the effective control of the
State, without exception”: UN Committee on Economic, Social and Cultural Rights,
“Duties of States towards Refugees and Migrants under the International Covenant on
Economic, Social and Cultural Rights,” UN Doc. E/C.12/2017/1, Mar. 13, 2017, at [9].
“[T]hese standards oblige states to provide protection that has immediate effect. That is –
at least on the face of it – that no excuses are acceptable in the view of the Committee for
not so providing. Thus, for example, the Committee has made clear that security concerns,
including (indeed, especially) in situations of conflict, are not justifiable reasons for the
neglect of basic Convention rights”: Saul, ICESCR Commentary, at 152.
438
UN Committee on Economic, Social and Cultural Rights, “Duties of States towards
Refugees and Migrants under the International Covenant on Economic, Social and
Cultural Rights,” UN Doc. E/C.12/2017/1, Mar. 13, 2017, at [5].

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 100 1 e vo lution o f the refugee ri ghts regime

On the basis of the extensive experience gained by the Committee, as well

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

In other words, it is the Committee’s view that virtually no state – if it really did
what the Covenant requires, namely give clear priority in resource allocation to
the realization of economic, social, and cultural rights, and never to allocate
those funds on a discriminatory basis – could fail to realize at least the most basic
levels of these four, most vital rights.440 While a state can still justify its failure
fully to implement Covenant rights by reference to Art. 2(1)’s duty of progressive
implementation,441 the Committee has made clear that no state is immune from
the duty to respect the core content of rights.442 Specifically, every state “must
439
UN Committee on Economic, Social and Cultural Rights, “General Comment No. 3: The
Nature of States Parties’ Obligations” (1990), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004,
at [10].
440
The Committee has reaffirmed its commitment to the notion of core rights. “Should
a State party argue that resource constraints make it impossible to provide access to food
for those who are unable by themselves to secure such access, the State has to demonstrate
that every effort has been made to use all the resources at its disposal in an effort to satisfy,
as a matter of priority, those minimum obligations. This follows from article 2.1 of the
Covenant, which obliges a State party to take the necessary steps to the maximum of its
available resources, as previously pointed out by the Committee in its General Comment
No. 3, paragraph 10”: UN Committee on Economic, Social and Cultural Rights, “General
Comment No. 12: The Right to Adequate Food” (1999), UN Doc. HRI/GEN/1/Rev.7,
May 12, 2004, at [17]. See also UN Committee on Economic, Social and Cultural Rights,
“General Comment No. 14: The Right to the Highest Attainable Standard of Health”
(2000), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [43]: “In General Comment No. 3,
the Committee confirms that States parties have a core obligation to ensure the satisfaction
of, at the very least, minimum essential levels of each of the rights enunciated in the
Covenant, including essential primary health care. Read in conjunction with more con-
temporary instruments, such as the Programme of Action of the International Conference
on Population and Development, the Alma-Ata Declaration provides compelling guid-
ance on the core obligations arising from article 12.”
441
“There is an unavoidable subjectivity in the command that a state utilize ‘the maximum of
its available resources’”: Saul, ICESCR Commentary, at 143.
442
In relation to the right to water, for example, the Committee has determined that “[t]o
demonstrate compliance with their general and specific obligations, States parties must
establish that they have taken the necessary and feasible steps towards the realization of the
right to water. In accordance with international law, a failure to act in good faith to take

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 1.5 p os t-convention sources of refugee rights 101

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

Equally important, the Committee has more recently explicitly determined

that these core obligations “apply even for the benefit of individuals who are
part of a large group of refugees or migrants suddenly falling under the
jurisdiction of the States concerned.”445 The core content approach thus clearly
mitigates the risks for refugees of reliance on general guarantees of socioeco-
nomic rights under international human rights law, though still not rising to
the level of the absolute if less exigent cognate duties set by the Refugee
Convention.446
In sum, it is clear that while general human rights are a critical component of
the modern understanding of refugee rights, they in no sense supplant the Refugee
Convention’s rights regime.447 Indeed, because general human rights need only be
such steps amounts to a violation of the right. It should be stressed that a State party
cannot justify its non-compliance with the core obligations . . . which are non-derogable”:
UN Committee on Economic, Social and Cultural Rights, “General Comment No. 15: The
Right to Water” (2002), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [40].
443
UN Committee on Economic, Social and Cultural Rights, “General Comment No. 3: The
Nature of States Parties’ Obligations” (1990), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004,
at [10]. But “[a]lthough the concept of ‘minimum core obligations’ may provide an
intellectual framework with which one might be able to establish objective standards
against which the states’ efforts to protect economic, social and cultural rights can be
measured, it still lacks precision, or even easy application in practice”: Saul, ICESCR
Commentary, at 147.
444
Saul, ICESCR Commentary, at 147.
445
UN Committee on Economic, Social and Cultural Rights, “Duties of States towards
Refugees and Migrants under the International Covenant on Economic, Social and
Cultural Rights,” UN Doc. E/C.12/2017/1, Mar. 13, 2017, at [4]. More specifically, “they
would not in principle be justified in restricting the enjoyment of the essential content of
the Covenant rights on the basis of a lack of resources, even when confronted with
a sudden and quantitatively significant flow of refugees”: ibid. at [10].
446
Thus, even as he makes the case for reliance on general human rights law to protect
migrants, Chetail observes that whatever the import of Art. 2(3) of the Economic, Social
and Cultural Covenant, “it cannot be used to avoid articles 17, 18, and 19 of the Refugee
Convention governing access to employment”: Chetail, “Human Rights of Migrants,” at
249–250.
447
Chetail thus overclaims when he argues that “human rights law is the primary source of
protection, while the [Refugee] Convention is bound to play a complementary and
secondary role”: Chetail, “Are Refugee Rights Human Rights?,” at 22. The better view is

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 102 1 e volutio n of the r efug ee rights regime

guaranteed to refugees and other non-citizens “without discrimination” rather

than absolutely, the ability of refugees directly to invoke human rights law is
circumscribed by the rather sad international jurisprudence on the meaning of
non-discrimination, a topic considered in the next part. In far too many respects,
the failure to embrace a robust understanding of non-discrimination means that
the net value of general human rights law to refugees is more apparent than real.

1.5.5 Duty not to Discriminate against Non-citizens,

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

that neither refugee law nor general human rights law is sufficient fully to meet the needs
of refugees, and that each plays a critical or primary role in relation to some components of
the protection paradigm.
448
S. Fredman, Discrimination Law (2011) (Fredman, Discrimination), at 109.
449
C. McCrudden, “Equality and Non-Discrimination,” in D. Feldman ed., English Public
Law 499 (2009) (McCrudden, “Equality”), at [11.61].
450
“[W]e must try to develop ‘discrimination’ as a separate independent legal concept. To call
all possible instances of unequal treatment . . . ‘discrimination’ would deprive that word of
its very raison d’être”: E. Vierdag, The Concept of Discrimination in International Law,
with a Special Reference to Human Rights (1973) (Vierdag, Concept of Discrimination),
at 51.

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 1.5 po s t- c o n v e nt i o n s o u r c es of r ef u g e e r i g h ts 103

impossible, comparative assessments) to include also a prohibition of conduct

which in effect, even if not by design, results in an arbitrary allocation at odds
with the duty to ensure that individuals are treated in accordance with their
particular merits. As Fredman writes, “equal treatment is not in itself sufficient
to address inequality in society. Equal treatment may well lead to unequal
results.”451
Most important, non-discrimination may also be understood to be not only
a prohibition of arbitrary allocations – whether by design, or as measured by
effects – but also an affirmative guarantee of equal opportunity. Under such an
understanding, non-discrimination requires public authorities “to do more
than ensure the absence of discrimination . . . [they] must also act positively to
promote equality of opportunity between different groups.”452
The core guarantee of non-discrimination in international human rights
law is that found in Art. 26 of the Civil and Political Covenant.453 This unique
and broadly applicable guarantee of non-discrimination provides that:

All persons are equal before the law and are entitled without any discrim-
ination to the equal protection of the law. In this respect, the law shall
prohibit any discrimination and guarantee to all persons equal and effect-
ive protection against discrimination on any ground such as race, colour,
sex, language, religion, political or other opinion, national or social origin,
property, birth or other status.454

While there are many other guarantees of non-discrimination – for example,

Art. 2 in each of the Human Rights Covenants, and Art. 3 of the Refugee
Convention – Art. 26 is unique in that its ambit is not limited to the allocation
of simply the rights found in any one instrument. Art. 26 rather governs the
allocation of all public goods, including rights not stipulated by the Covenant
itself. As summarized in General Comment No. 18 of the Human Rights
Committee,

[A]rticle 26 does not merely duplicate the guarantee already provided for
in article 2 [of the Civil and Political Covenant] but provides in itself an
autonomous right. It prohibits discrimination in law or in fact in any field
regulated and protected by public authorities. Article 26 is therefore
concerned with the obligations imposed on States parties in regard to
their legislation and the application thereof. Thus, when legislation is
adopted by a State party, it must comply with the requirement of article
451
Fredman, Discrimination, at 177. 452 McCrudden, “Equality,” at [11.156].
453
See generally J. Pobjoy, “Treating Like Alike: The Principle of Non-Discrimination as
a Tool to Mandate the Equal Treatment of Refugees and Beneficiaries of Complementary
Protection,” (2010) 34 Melbourne University Law Review 181 (Pobjoy, “Treating Like
Alike”), analyzing article 26 of the Civil and Political Covenant as a valuable tool in
protecting the rights of highly vulnerable individuals.
454
Civil and Political Covenant, at Art. 26.

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 104 1 evolution of the refugee rights regime

26 that its content should not be discriminatory. In other words, the

application of the principle of non-discrimination contained in article 26
is not limited to those rights which are provided for in the Covenant.455

The first branch of Art. 26 – equality before the law – is a relatively formal
prohibition of negative conduct: it requires simply that there be no discrimin-
ation in the enforcement of existing laws. It is thus unsurprising that several
delegates to the Third Committee of the General Assembly argued that this
guarantee of procedural non-discrimination, standing alone, was insufficient.
For example, the representative of the Philippines observed that the obligation
to ensure equality before the law would not preclude states from “providing for
separate but equal facilities such as housing, schools and restaurants for
different groups.”456 The Polish delegate agreed, pointing out that even
much South African apartheid-era legislation could be reconciled to
a guarantee of equality before the law.457 These concerns suggested the need
for a duty of non-discrimination addressed not just to the process of law
enforcement, but to the substance of laws themselves.
The precedent drawn upon by the drafters of the Civil and Political
Covenant was the principle advanced in the Universal Declaration of Human
Rights of a right to equal protection of the law.458 As reframed in the Covenant,
the equal protection component of Art. 26 is an extraordinarily inclusive
obligation, requiring that “the legislature must refrain from any discrimination
when enacting laws . . . [and] must also prohibit discrimination by enacting
special laws and to afford effective protection against discrimination [emphasis
added].”459 While commentators are not unanimous in their interpretation of
Art. 26,460 both the literal text of this article and an appreciation of its drafting
455
UN Human Rights Committee, “General Comment No. 18: Non-discrimination” (1989),
UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at 146, [12]. This principle has been affirmed
in the jurisprudence of the Human Rights Committee, including, for example, in Pepels
v. Netherlands, HRC Comm. No. 484/1991, UN Doc. CCPR/C/51/D/484/1991, decided
July 15, 1994, at [7.2]; and Pons v. Spain, HRC Comm. No. 454/1991, UN Doc. CCPR/C/
55/D/454/1991, decided Oct. 30, 1995, at [9.3]. In Teesdale v. Trinidad and Tobago, HRC
Comm. No. 677/1996, UN Doc. CCPR/C/74/D/677/1996, decided Apr. 1, 2002, for
example, the Committee “recall[ed] its established jurisprudence that article 26 of the
Covenant prohibits discrimination in law and in fact in any field regulated and protected
by public authorities”: ibid. at [9.8]. It thus held that it had the authority to determine
whether the President exercised his authority to commute the death penalty in
a discriminatory way.
456
UN Doc. A/C.3/SR.1098, at [25]. 457 UN Doc. A/C.3/SR.1101, at [21].
458
“All are equal before the law and are entitled without any discrimination to equal
protection of the law. All are entitled to equal protection against any discrimination in
violation of this Declaration and against any incitement to such discrimination”:
Universal Declaration, at Art. 7.
459
Schabas, Nowak’s CCPR Commentary, at 749.
460
A narrow view of the scope of Art. 26 is argued by Vierdag, who concludes that “[t]he
starting point was, and remained, to provide a guarantee of ‘equality before the law.’ All

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 1.5 po s t- c o n v e nt i o n s o u r c es of r ef u g e e r i g h ts 105

history suggest that this provision was designed to be an extraordinarily robust

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

later additions were proposed and adopted with the strengthening of this principle in
mind”: Vierdag, Concept of Discrimination, at 126.
461
Schabas, Nowak’s CCPR Commentary, at 742–745. It is true that the provision was
originally drafted as no more than a guarantee of “equality before the law,” and that
the second sentence’s prohibition of discrimination was amended to reinforce this pur-
pose by linking the duty of non-discrimination to the goal of equality before the law
through insertion of the words “[i]n this respect.” But an intervening amendment
expanded the scope of the first sentence’s guarantee to include also the sweeping notion
of “equal protection of the law.” In the result, the correlative phrase “[i]n this respect” is
logically read to require the prohibition of discrimination and the effective protection
against discrimination in both senses stipulated in the first sentence, namely equality
before the law and equal protection of the law. “[B]ecause of the adoption of the Indian
amendment, the passage ‘in this respect’ no longer related only to equality before the law
but also to equal protection of the law. That this involved two completely different aspects
of the principle of equality was made unmistakably clear by the Indian delegate”: ibid.
at 745.
462
UN Human Rights Committee, “General Comment No. 15: The Position of Aliens under
the Covenant” (1986), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at 140, [2]. In the
Committee’s decision of Karakurt v. Austria, HRC Comm. No. 965/2000, UN Doc. CCPR/
C/74/D/965/2000, decided Apr. 4, 2002, two members of the Committee took the oppor-
tunity to affirm that “[i]n [their] view distinctions based on citizenship fall under the
notion of ‘other status’ in article 26”: ibid. at Individual Opinion of Members Rodley and
Scheinen. The Committee on Economic, Social and Cultural Rights has similarly deter-
mined that “nationality” is a form of “other status” for purposes of protection against
discrimination under Art. 2 of the Economic and Social Covenant: UN Committee on
Economic, Social and Cultural Rights, “General Comment No. 20: Non-discrimination in
Economic, Social and Cultural Rights” (2009), UN Doc. E/C.12/GC/20, at [27], [30].
463
UN Human Rights Committee, “General Comment No. 31: The Nature of the General
Legal Obligation Imposed on States Parties to the Covenant” (2004), UN Doc. HRI/GEN/
1/Rev.7, May 12, 2004, 192, at [10]; see also UN Committee on Economic, Social and
Cultural Rights, “General Comment No. 20: Non-discrimination in Economic, Social and
Cultural Rights” (2009), UN Doc. E/C.12/GC/20, at [30].
464
In Nahlik v. Austria, HRC Comm. No. 608/1995, UN Doc. CCPR/C/57/D/608/1995,
decided July 22, 1996, the Committee was faced with an objection by Austria that “the
communication [was] inadmissible . . . since it relates to alleged discrimination within

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 106 1 ev olution o f the refugee r ight s r e gime

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

a private agreement, over which the State party has no influence. The Committee observes
that under articles 2 and 26 of the Covenant the State party is under an obligation to ensure
that all individuals within its territory and subject to its jurisdiction are free from
discrimination, and consequently the courts of States parties are under an obligation to
protect individuals against discrimination, whether this occurs within the public sphere or
among private parties in the quasi-public sector of, for example, employment”: ibid. at
[8.2]. In Waldman v. Canada, HRC Comm. No. 694/1996, UN Doc. CCPR/C/67/D/694/
1996, decided Nov. 3, 1999, the Human Rights Committee observed that “[t]he material
before the Committee does not show that members of the Roman Catholic community or
any identifiable section of that community are now in a disadvantaged position compared
to those members of the Jewish community that wish to secure the education of their
children in religious schools. Accordingly, the Committee rejects the State party’s argu-
ment that the preferential treatment of Roman Catholic schools is nondiscriminatory
because of its Constitutional obligation”: ibid. at [10.4] – implying that differentiation
which was directed to combating disadvantage would not likely be found to be discrimin-
atory. Such a construction is in line with the jurisprudence of many developed states with
respect to comparably framed domestic guarantees of non-discrimination. “What is
required by Congress is the removal of artificial, arbitrary, unnecessary barriers to
employment when the barriers operate invidiously to discriminate on the basis of racial
or other impermissible classification”: Griggs v. Duke Power Co., 401 US 424 (US SC, Mar.
8, 1971), at 430–431. “At the heart of the prohibition of unfair discrimination lies
a recognition that the purpose of our new constitutional and democratic order is the
establishment of a society in which all human beings will be accorded equal dignity and
respect regardless of their membership of particular groups”: President of the Republic of
South Africa v. Hug CCT, (1997) 4 SA 1 (SA CC, Apr. 8, 1997).
465
But in Sahak v. Minister for Immigration and Multicultural Affairs, [2002] FCAFC 215
(Aus. FFC, July 18, 2002), the Full Federal Court of Australia was called upon to consider
whether there was a breach of the duty of non-discrimination contained in Art. 5 of the
International Convention on the Elimination of All Forms of Racial Discrimination, 60
UNTS 195 (UNTS 9464), adopted Dec. 21, 1965, entered into force Jan. 4, 1969 (Racial
Discrimination Convention). Under Art. 5, states “undertake to prohibit and to eliminate
racial discrimination in all its forms and to guarantee the right of everyone, without
distinction as to race, color, or national or ethnic origin, to equality before the law, notably
in the enjoyment of . . . [t]he right to equal treatment before the tribunals and all other
organs administering justice”: ibid. at Art. 5(a). The claim involved persons seeking
recognition of their refugee status who did not speak English, and who were detained in
a facility with only limited availability of interpreters. They had done everything in their
power to meet the twenty-eight-day deadline for applying for judicial review of the
rejection of their refugee claims but could not comply because of lack of documentation,
interpreters, and lawyers in the detention facility. Their argument that the judicial review
rules amounted, in effect, to race-based discrimination was, however, rejected on the
formal grounds that “the Act does not deprive persons of one race of a right [to judicial
review] that is enjoyed by another race, nor does it provide for differential operation
depending on the race, color, or national or ethnic origin of the relevant applicant. For
example, persons whose national origin is Afghani or Syrian are able to take advantage of
the relevant right if their comprehension of the English language is sufficient, or if they
have access to friends or professional interpreters so as to overcome the language

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 1. 5 po st- c onvention s ourc es of r efug ee r ights 107

Despite the extraordinary potential of Art. 26, it is nonetheless unlikely

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

barrier . . . Any differential effect . . . is not based on race, color, descent or national or
ethnic origin, but rather on the individual personal circumstances of each applicant.”
North J., in dissent, opted for an effects-based understanding of the duty of non-
discrimination, writing that “to say that any differential impact is suffered not because
of national origin, but rather as a result of individual personal circumstances, appears to
me to adopt a verbal formula which avoids the real and practical discrimination.” Invoking
the decision of the US Supreme Court in Griggs v. Duke Power Co., 401 US 424 (US SC,
1971), at 430–431, he concluded that “[t]o approach anti-discrimination provisions in [a
formal, intent-based] way would rob them of much of their intended force.”
466
“[I]nequality does not equate to discrimination. Equal and unequal treatment certainly
function as the basis for consideration of whether particular treatment constitutes discrimin-
ation. But something more is required before unequal treatment (or, in some circumstances,
equal treatment) will amount to discrimination”: Pobjoy, “Treating Like Alike,” at 197.
But see T. Clark and J. Niessen, “Equality Rights and Non-Citizens in Europe and
America: The Promise, the Practice, and Some Remaining Issues,” (1996)
14(3) Netherlands Quarterly of Human Rights 245, in which it is argued that the duty of non-
discrimination requires the minimization of distinctions between aliens and nationals.
467
The original amendment of India to add to the first sentence the words “and are entitled to
equal protection of the law” (UN Doc. A/C.3/L.945) was sub-amended by a proposal of
Argentina and Chile (UN Doc. A/C.3/L.948) to insert between the words “are entitled”
and “to equal protection of the law” the words “without any discrimination”: UN Doc. A/
5000, at [103] (1961).
468
As Pobjoy observes, “[t]he ‘reasonable and objective’ standard . . . should not be viewed as
an exception to the prohibition on discrimination. Rather, the standard is built into the
concept of discrimination itself”: Pobjoy, “Treating Like Alike,” at 208. For example, the
Committee determined in Broeks v. Netherlands, HRC Comm. No. 172/1984, decided Apr.
9, 1987, at [13], that “[t]he right to equality before the law and to equal protection of the
law without any discrimination does not make all differences of treatment discriminatory.
A differentiation based on reasonable and objective criteria does not amount to prohibited
discrimination within the meaning of article 26.” See also Danning v. Netherlands, HRC
Comm. No. 180/1984, decided Apr. 9, 1987; and Zwaan-de Vries v. Netherlands, HRC
Comm. No. 182/1984, decided Apr. 9, 1987. At one point, the test appeared to have been
watered down to a simple assessment of “reasonableness.” In Simunek et al. v. Czech
Republic, HRC Comm. No. 516/1992, UN Doc. CCPR/C/54/D/516/1992, decided July 19,
1995, the Committee held that “[a] differentiation which is compatible with the provisions
of the Covenant and is based on reasonable grounds does not amount to prohibited
discrimination within the meaning of article 26”: ibid. at [11.5]. But since that decision the
traditional “reasonable and objective” formulation has nonetheless been affirmed: see e.g.
Oord v. Netherlands, HRC Comm. No. 658/1995, UN Doc. CCPR/C/60/D/658/1995,
decided July 23, 1997, at [8.5]; Foin v. France, HRC Comm. No. 666/1995, UN Doc.

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 108 1 ev olutio n of t he r efug ee r igh ts re gime

this test, it is not discriminatory and there is accordingly no duty either to

desist from differentiation or to take positive steps to equalize opportunity
under Art. 26.
Three particular trends in the application of the “reasonable and objective”
standard work against the interests of refugees and other non-citizens.469 First, the
Committee has too frequently been prepared to recognize differentiation on the
basis of certain grounds, including non-citizenship, as presumptively reasonable.
Second, the Human Rights Committee routinely affords governments an extra-
ordinarily broad margin of appreciation rather than engaging in careful analysis of
both the logic and extent of the differential treatment. And third, the Committee
has paid insufficient attention to evidence that generally applicable standards may
impact differently on differently situated groups, thereby failing to do justice to
a substantive understanding of the right to equal protection of the law.470

1.5.5.1
Categorical Approval of Differentiation based
on Citizenship
Turning to the first concern, some categorical bases for differentiation seem
simply to be assumed to be reasonable by the Human Rights Committee. The
Committee, for example, apparently feels that it is self-evidently reasonable to
deny unmarried spouses the social welfare rights granted to married spouses,471 or

CCPR/C/67/D/666/1995, decided Nov. 3, 1999, at [10.3]; Waldman v. Canada, HRC

Comm. No. 694/1996, UN Doc. CCPR/C/67/D/694/1996, decided Nov. 3, 1999, at
[10.4]; and Wackenheim v. France, HRC Comm. No. 854/1999, UN Doc. CCPR/C/67/
D/854/1999, decided July 15, 2002, at [7.4].
469
An additional concern follows from a decision in which the Committee refused to find
gender-based discrimination in Russia’s decision to exempt women but not men from the
death penalty. The determination was that because “all measures of abolition should be
considered as progress . . . the Committee considers that this exemption from the death
penalty cannot constitute differential treatment contrary to article 26” – clearly
a nonsensical proposition that does not even address issues of discrimination on the
merits: Marz v. Russian Federation, HRC Comm. No. 1425/2005, UN Doc. CCPR/C/97/D/
1425/2005, decided Oct. 21, 2009, at [5.5].
470
“Fair equality of opportunity differs from the simple non-discrimination principle . . . in
being positive as well as negative in its requirements and in taking into account some of
the prior existing disadvantages . . . The two principles differ also in the conception of the
social processes of inequality on which they tend to be grounded. A demand for fair
equality of opportunity is more often than not based on a recognition of the structural
sources of unequal opportunity and in particular on an acceptance of what has become
known as ‘institutional discrimination.’ Finally, fair equality of opportunity, again unlike
the simple non-discrimination principle, requires questions to be asked not only about the
precise basis on which the good being distributed is deserved but also about the nature of
the good being distributed”: C. McCrudden, “Institutional Discrimination,” (1982) 2(3)
Oxford Journal of Legal Studies 303, at 344–345.
471
“[T]he decision to enter into a legal status by marriage, which provides, in Netherlands
law, both for certain benefits and for certain duties and responsibilities, lies entirely with
the cohabiting persons. By choosing not to enter into marriage, Mr. Danning and his

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 1.5 p ost-convention sources of r efugee rights 109

to withhold general guarantees of legal due process from military conscripts.472

The majority of the Human Rights Committee has also adopted the view that
distinctions based on advanced age are inherently non-discriminatory. In assess-
ing a staff restructuring plan in which age was per se a factor for redundancy, the
Committee determined that “the age limit used . . . for continued post occupancy
was an objective distinguishing criterion.”473 Indeed, the Human Rights

cohabitant have not, in law, assumed the full extent of the duties and responsibilities
incumbent on married couples. Consequently, Mr. Danning does not receive the full
benefits provided for in Netherlands law for married couples [emphasis added]”:
Danning v. Netherlands, HRC Comm. No. 180/1984, decided Apr. 9, 1987, at [14]. See
also Sprenger v. Netherlands, HRC Comm. No. 395/1990, UN Doc. CCPR/C/44/D/395/
1990, decided Mar. 31, 1992. The use of the conjunction “consequently” erroneously
suggests a logical nexus between the absence of the legal duties and responsibilities of
married spouses and ineligibility for social welfare benefits. Whatever reasonable differ-
entiation may be made between married and unmarried cohabitants, the needs of couples
of both classes for income support consequent to the disability of one partner are not
obviously distinct. The Human Rights Committee did not, however, even consider this
question. The Committee has affirmed this approach in its decision of Derksen
v. Netherlands, HRC Comm. No. 976/2001, UN Doc. CCPR/C/80/D/1976/2001, decided
Apr. 1, 2004, at [9.2]; and in X v. Colombia, HRC Comm. No. 1361/2005, UN Doc. CCPR/
C/89/D/1361/2005, decided Mar. 30, 2007, at [7.2].
472
“He merely alleges that he is being subjected to different treatment during the period of his
military service because he cannot appeal against a summons like a civilian. The
Committee observes that the Covenant does not preclude the institution of compulsory
military service by States parties, even though this means that the rights of individuals may
be restricted during military service, within the exigencies of such service [emphasis
added]”: RTZ v. Netherlands, HRC Comm. No. 245/1987, decided Nov. 5, 1987, at [3.2].
See also MJG v. Netherlands, HRC Comm. No. 267/1987, decided Mar. 24, 1988; and
Brinkhof v. Netherlands, HRC Comm. No. 402/1990, UN Doc. CCPR/C/48/D/402/1990,
decided July 27, 1993, at [6.2]. While the Committee suggests that military status “means”
that due process rights may be restricted, it is incredible that the Human Rights
Committee would not even ask why it was necessary to deprive all conscripts of their
general legal right to contest a summons.
473
Hinostroza Solís v. Peru, HRC Comm. No. 1016/2001, UN Doc. CCPR/C/86/D/1016/2001,
decided Mar. 27, 2006, at [6.4]. The dissenting members correctly observed that “this is
tantamount to saying that age as such is an objective and reasonable criteri[on] for
deciding who would have to leave the public service”: ibid. at Appendix, [1]. In an earlier
case involving an allegation of age discrimination in the context of a mandatory retirement
requirement for commercial airline pilots, the Committee observed that “it is by no means
clear that mandatory retirement age would generally constitute age discrimination. The
Committee takes note of the fact that systems of mandatory retirement age may include
a dimension of workers’ protection by limiting the life-long working time, in particular
when there are comprehensive social security schemes that secure the subsistence of
persons who have reached such an age. Furthermore, reasons related to employment
policy may be behind legislation or policy on mandatory retirement age . . . In the present
case, as the State party notes, the aim of maximising safety to passengers, crew and persons
otherwise affected by flight travel was a legitimate aim under the Covenant . . . In the
circumstances, the Committee cannot conclude that the distinction made was not, at the
time of Mr Love’s dismissal, based on objective and reasonable considerations:” Love

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 110 1 e v o l u t i o n o f t h e re f u g e e r i g h t s r e g i m e

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

v. Australia, HRC Comm. No. 983/2001, UN Doc. CCPR/C/77/D/983/2001, decided Mar.

25, 2003, at [8.2]–[8.3]. While of course questions such as workers’ protection and safety
are relevant to whether age differentiation is reasonable and objective in a given case, the
preparedness of the Committee categorically to assume that such concerns arise in all
cases is disturbing.
474
Albareda et al. v. Uruguay, HRC Comm. No. 1637/2007, UN Doc. CCPR/C/103/D/1637/
2007, decided Oct. 4, 2011, at [9.3]–[9.4].
475
See UN Docs. E/CN.4/SR.122, at 5–7; E/CN.4/SR.173, at [46], [67], and [76]; and E/CN.4/
SR.327, at 7.
476
Statement of the Representative of France, UN Doc. E/CN.4/SR.173, at [19].
477
This oral proposal by the Representative of Indonesia (UN Doc. A/C.3/SR.1102, at [48])
was ultimately withdrawn.
478
See UN Docs. A/C.3/SR.1098, at [10], [55]; A/C.3/SR.1099, at [18], [26], [31], [36]; A/C.3/
1100, at [10]; A/C.3/SR.1101, at [40], [43], [53]; A/C.3/SR.1102, at [17], [24], [27],
[29], [51].

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 1. 5 po st- c onvention s ourc es of r efug ee r ights 111

from citizens) by virtue of the terms of a bilateral treaty based on reciprocity,

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

These observations were made in a case challenging Austria’s assertion that the
applicant’s status as a non-citizen of Austria or the European Economic Area
479
“The Committee observes . . . that the categories of persons being compared are distin-
guishable and that the privileges at issue respond to separately negotiated bilateral treaties
which necessarily reflect agreements based on reciprocity. The Committee recalls its
jurisprudence that a differentiation based on reasonable and objective criteria does not
amount to prohibited discrimination within the meaning of article 26”: Oord
v. Netherlands, HRC Comm. No. 658/1995, UN Doc. CCPR/C/60/D/658/1995, decided
July 23, 1997, at [8.5]. See also Shergill et al. v. Canada, HRC Comm. No. 1506/2006, UN
Doc. CCPR/C/94/D/1506/2006, decided Oct. 30, 2008, at [3.2], [7.6].
480
Mr. X and Ms. X v. Denmark, HRC Comm. No. 2186/2012, UN Doc. CCPR/C/112/D/
2186/2012, decided Oct. 22, 2014, at [6.3].
481
Leghaie v. Australia, HRC Comm. No. 1937/2010, UN Doc. CCPR/C/113/D/1937/2010,
decided Mar. 26, 2015. The technical objection relied upon by the Committee (ibid. at
[9.3]) – that the author had failed to exhaust domestic remedies – is unconvincing since
Australian law provided a remedy only for persons alleging discrimination on grounds of
a “particular” nationality, not on the basis of non-citizenship in general (ibid. at [7.6]).
482
Karakurt v. Austria, HRC Comm. No. 965/2000, UN Doc. CCPR/C/74/D/965/2000,
decided Apr. 4, 2002, at [8.4]. While an Austrian reservation was found to prevent the
Committee from examining the issue of distinctions between non-nationals and
Austrians, the Committee considered the question of whether distinctions as among
categories of non-nationals – specifically, treating European Economic Area citizens
differently than other non-citizens – was a form of prohibited discrimination.

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 112 1 e volution of the refugee rights regime

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

While less than a clear commitment to tackling discrimination based on

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

1.5.5.2
Unwarranted Deference to State Assertions
of Reasonableness
A second and more general concern about the Human Rights Committee’s
approach to non-discrimination law is its tendency simply to assume the
reasonableness of many state-sanctioned forms of differentiation. In two
early cases against Sweden involving the denial of financial assistance for
school meals and textbooks to children attending private schools, the
Human Rights Committee found no reason to uphold the claims of discrimin-
ation on the grounds that the government might “reasonably and objectively”
483
Ibid. The unwillingness to assume nationality to be a valid ground for differential
treatment is clear also from an earlier decision of the Committee in response to
a complaint brought by 743 Senegalese nationals who had served in the French army
prior to independence in 1960. The Committee found that French legislation that froze
their military pensions on the grounds of nationality (while simultaneously allowing for
increases to the pensions of comparably situated retired soldiers of French citizenship) was
not based on objective and reasonable criteria, and was therefore discriminatory. It
observed that “[t]here has been a differentiation by reference to nationality acquired
upon independence. In the Committee’s opinion, this falls within the reference to ‘other
status’ in the second sentence of article 26”: Gueye v. France, HRC Comm. No. 196/1985,
decided Apr. 3, 1989, at [9.4].

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 1.5 p o s t - c o n v e n t i o n s o u r c e s of r e f u g e e r i g h t s 113

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

484
In Blom v. Sweden, HRC Comm. No. 191/1985, decided Apr. 4, 1988, the Committee
declared that “[i]n deciding whether or not the State party violated article 26 by refusing to
grant the author, as a pupil of a private school, an education allowance for the school year
1981/82, whereas pupils of public schools were entitled to education allowances for that
period, the Committee bases its findings on the following observations. The State party’s
educational system provides for both private and public education. The State party cannot
be deemed to act in a discriminatory fashion if it does not provide the same level of subsidy
for the two types of establishment, when the private system is not subject to State supervi-
sion [emphasis added]”: ibid. at [10.2]–[10.3]. That the Committee failed to grapple with
the issue of whether there was truly a difference in the needs of the two categories of
students is readily apparent from its reference to the legitimacy of withholding funds from
one of two kinds of establishment.
485
“In the light of the explanations given by the State party, the Committee finds that the
different treatment of parents and children and of other relatives respectively, contained in
the regulations under the Social Security Act, is not unreasonable nor arbitrary, and its
application in the author’s case does not amount to a violation of article 26 of the
Covenant”: Neefs v. Netherlands, HRC Comm. No. 425/1990, UN Doc. CCPR/C/51/D/
425/1990, decided July 15, 1994, at [7.4].
486
“In the instant case, the contested differentiation is based only superficially on
a distinction between employees who retired before 1 January 1992 and those who retired
after that date. Actually, this distinction is based on a different treatment of active and
retired employees at the time. With regard to this distinction, the Committee considers
that the author has failed to substantiate, for purposes of admissibility, that the distinction
was not objective or how it was arbitrary or unreasonable. Therefore, the Committee
concludes that the communication is inadmissible”: Nahlik v. Austria, HRC Comm. No.
608/1995, UN Doc. CCPR/C/57/D/608/1995, decided July 22, 1996, at [8.4].

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 114 1 e v o l u t i o n o f t h e re f u g e e r i g h t s r eg i m e

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

487
“As regards the claim that the exclusion of civilian detainees from entitlements under the
War Pensions Act is discriminatory, the Committee notes from the information before it
that the purpose of the Act is specifically to provide pension entitlements for disability and
death of those who were in the service of New Zealand in wartime overseas, not to provide
compensation for incarceration or for human rights violations. In other words if disability
arises from war service it is irrelevant to the entitlement to a pension whether the person
suffered imprisonment or cruel treatment by captors. Keeping in mind the Committee’s
prior jurisprudence according to which a distinction based on objective and reasonable
criteria does not constitute discrimination within the meaning of article 26 of the
Covenant, the Committee considers that the authors’ claim is incompatible with the
provisions of the Covenant and thus inadmissible”: Drake v. New Zealand, HRC Comm.
No. 601/1994, UN Doc. CCPR/C/59/D/601/1994, decided Apr. 3, 1997, at [8.5]; see also
Rizvanović et al. v. Bosnia and Herzegovina, HRC Comm. No. 1997/2010, UN Doc. CCPR/
C/110/D/1997/2010, decided Mar. 21, 2014, at [3.9].
488
“The Committee recalls that differences in treatment do not constitute discrimination,
when they are based on objective and reasonable criteria. In the present case, the
Committee considers that representation of a person presenting a civil claim in
a criminal case cannot be equalled to representing the accused. The arguments advanced
by the author and the material he provided do not substantiate, for purposes of admissi-
bility, the author’s claim that he is a victim of discrimination”: Lestourneaud v. France,
HRC Comm. No. 861/1999, UN Doc. CCPR/C/67/D/861/1999, decided Nov. 3, 1999,
at [4.2].
489
“The Committee is aware of the fact that there are other activities which are not banned
but which might possibly be banned on the basis of grounds similar to those which justify
the ban on dwarf tossing. However, the Committee is of the opinion that, given that the
ban on dwarf tossing is based on objective and reasonable criteria and the author has not
established that this measure was discriminatory in purpose, the mere fact that there may
be other activities liable to be banned is not in itself sufficient to confer a discriminatory
character on the ban on dwarf tossing. For these reasons, the Committee considers that, in
ordering the above-mentioned ban, the State party has not, in the present case, violated the
rights of the author as contained in article 26 of the Covenant”: Wackenheim v. France,
HRC Comm. No. 854/1999, UN Doc. CCPR/C/67/D/854/1999, decided July 15, 2002,
at [7.5].
490
The law in question presumes that foreigners who have served in the armed forces of
another country pose a threat to Estonian national security. In this case, “the Tallinn
Administrative Court . . . found that the author had not been refused citizenship because
he had actually acted against the Estonian state and its security in view of his personal
circumstances. Rather, for the reasons cited, the author was in a position where he could
act against Estonian national security . . . It observed that there was no need to make out
a case of a specific individual threat posed by the author, as he had not been accused of
engaging in actual activities against the Estonian state and its security”: Borzov v. Estonia,

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 1.5 p o s t - c o n v e n t i o n s o u r c e s of r e f u g e e r i g h t s 115

certain politically unpopular persons from a prisoner release program for

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

HRC Comm. No. 1136/2002, UN Doc. CCPR/C/81/D/1136/2002, decided Aug. 25, 2004,
at [2.5]. The Committee nonetheless determined that “the State party concluded that
a grant of citizenship to the author would raise national security issues generally on
account of the duration and level of the author’s military training, his rank and back-
ground in the armed forces of the then USSR . . . [T]he author did enjoy a right to have the
denial of his citizenship application reviewed by the courts of the State party. Noting,
furthermore, that the role of the State party’s courts in reviewing administrative decisions,
including those decided with reference to national security, appears to entail genuine
substantive review, the Committee concludes that the author has not made out his case
that the decision taken by the State party with respect to the author was not based on
reasonable and objective grounds”: ibid. at [7.4]. Much the same reasoning was adopted in
the subsequent cases of Tsarjov v. Estonia, HRC Comm. No. 1223/2003, UN Doc. CCPR/
C/91/D/1223/2003, decided Oct. 26, 2007, at [3.3]; and Sipin v. Estonia, HRC Comm. No.
1423/2005, UN Doc. CCPR/C/93/D/1423/2005, decided July 9, 2008, at [7.3]. As Joseph
observes, “the HRC’s reasoning here was arguably inconsistent. On the one hand, it found
that the distinction in the law was reasonable and objective . . . [but] [i]t would not go
further and examine the reasonableness of the application of the law to [the applicants]”:
S. Joseph, “Analysis of Tsarjov v. Estonia,” Oxford Public International Law, July 4, 2008.
491
Despite evidence that the Irish government refused to permit certain members of the
Provisional Irish Republican Army to benefit from an early prisoner release scheme, the
Committee opined that it was “not in a position to substitute the State party’s assessment
of facts with its own views, particularly with respect to a decision that was made nearly ten
years ago, in a political context, and leading up to a peace agreement”: O’Neill v. Ireland,
HRC Comm. No. 1314/2004, UN Doc. CCPR/C/87/D/1314/2004, decided July 24, 2006, at
[8.4]. As noted by dissenting member Mr. Hippólito Solari-Yrigoyen, “the Committee
gives undue weight to the State party’s claim that it based its decision . . . on the
exceptional impact and repercussions of the offence [of which they were convicted] on
public opinion.”
492
Maria et al. v. Greece, HRC Comm. No. 1570/2007, UN Doc. CCPR/C/95/1570/2007,
decided Mar. 19, 2009, at [2.4], [7.2]. In a stinging dissent, member Mr. Abdelfattah Amor
wrote, “Was it advocacy of racial hatred or just words? Was there the intention to offend,
and who must prove this? These are questions that should have been discussed, analysed
and assessed on the merits. To say, subsequently, that the facts have been insufficiently
established for the purposes of inadmissibility is indefensible both legally and factually”
(emphasis in original).

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 116 1 e v o l u t i o n o f t h e re f u g e e r i g h t s r eg i m e

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

The Committee did not even examine the question whether “sufficiently strong
ties” might be demonstrated by a period of residence significantly less than
twenty years, much less the allegation that the goal of the requirement was to
disfranchise an ethnic minority of the population.494 In all of these cases,
reliance on a “reasonableness” test rather than on serious analysis of the real
needs and interests of the persons involved served simply to legitimate state
discretion.495
Even where the Committee does not simply defer to state assertions of
reasonableness, the Committee seems reluctant to delve into the facts of
particular cases in order to ensure that the differential treatment is actually
proportionate to the social good thereby being advanced.496 For example, the
493
Gillot v. France, HRC Comm. No. 932/2000, UN Doc. CCPR/C/75/D/932/2000, decided
July 15, 2002, at [14.7].
494
“The authors also consider the period of residence determining the right to vote in
referendums from 2014 onwards, namely 20 years, to be excessive. They again assert
that the French authorities are seeking to establish an electorate of Kanaks and Caldoches
for whom, moreover, the right to vote is maintained even in the event of lengthy absences
from New Caledonia”: Gillot v. France, ibid. at [3.10].
495
The Swedish school benefits cases might, however, have been legitimately rejected on
the basis that they do not involve differentiation on the grounds of actual or
imputed group identity. They may, in other words, be examples of arbitrariness in
rights allocation, rather than discrimination as such. But the Committee has more
recently seen fit to find discrimination even where the differentiation arguably bore
no relationship to any of the prohibited grounds for discrimination: Haraldsson and
Sveinsson v. Iceland, HRC Comm. No. 1306/2004, UN Doc. CCPR/C/91/D/1306/
2004, decided Oct. 24, 2007, at [10.4]. Several members of the Committee dissented
from this unfortunate opinion.
496
For example, to determine whether a law that infringes a protected right may nonetheless
be adjudged a “reasonable limitation” for Canadian constitutional law purposes, the
Supreme Court of Canada has determined that the government’s objective must be
pressing and substantial, and that there is proportionality between means and end. To
determine the latter question of proportionality, consideration should be given to whether
the limitation on the right is carefully designed to achieve its objective; whether it
constrains the right to the minimum extent truly necessary; and whether the benefit of
the limitation outweighs the harm occasioned by infringement of the right: R v. Oakes,
[1986] 1 SCR 103 (Can. SC, Feb. 28, 1986). The importance of a law’s objective cannot
compensate for its patent over-breadth. As such, the Supreme Court of Canada has struck
down legislation advancing critical objectives when the means adopted are not propor-
tional to the objective, e.g. involving the protection of children from sexual offenders (R v.
Heywood, [1994] 3 SCR 761 (Can. SC, Nov. 10, 1994)), the protection of female children
from the harm caused to them by premature intercourse (R v. Hess, [1990] 2 SCR 906

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 1.5 p ost-convention sources of refugee rights 117

case of Debreczeny v. Netherlands497 involved a police officer who was excluded

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

(Can. SC, Oct. 4, 1990)) and the protection of persons from the health risks of tobacco use
(RJR-Macdonald Inc. v. Canada, [1995] 3 SCR 199 (Can. SC, Sept. 25, 1995)).
497
HRC Comm. No. 500/1992, UN Doc. CCPR/C/53/D/500/1992, decided Apr. 3, 1995.
498
Similarly, the Committee upheld the reasonableness of the retroactive reclassification of
a member of the Polish civic militia as a member of the prior regime’s security forces,
thereby making him ineligible for reappointment in the post-Communist government:
Kall v. Poland, HRC Comm. No. 552/1993, UN Doc. CCPR/C/60/D/552/1993, decided
July 14, 1997. In a dissenting opinion, Members Evatt and Medina Quiroga wrote that “it
has to be examined whether the classification of the author’s position as part of the
Security Police was both a necessary and proportionate means for securing a legitimate
objective, namely the re-establishment of internal law enforcement services free of the
influence of the former regime, as the State party claims, or whether it was unlawful or
arbitrary and or discriminatory, as the author claims”: ibid.
499
HRC Comm. No. 198/1985, decided July 9, 1987.
500
Stalla Costa v. Uruguay, ibid. at [10].

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 118 1 e volution of the refugee rights regime

The critical difference that careful proportionality analysis can make is

evident from examination of a pair of cases which alleged that the automatic
prolongation of alternative military service was discriminatory in relation to
genuine conscientious objectors. In Järvinen v. Finland,501 the Human Rights
Committee considered Finland’s rule requiring conscientious objectors to
military service to undertake alternative service for double the period of
military service. The doubling of service time for conscientious objectors was
said by the state to be justified on the grounds that it was necessary in order to
discourage abuse of the non-combatant option. The Committee agreed, find-
ing that the scheme was “reasonable” based on the importance of administra-
tive workability, and because there was no intention to discriminate. No effort
was made to assess whether the risk of abuse under the new system truly
required such a significant disparity between the duration of military and
alternative service, much less whether it was necessary to impose the prolonged
service on persons willing to submit to careful scrutiny of their reasons for
refusal to engage in military service.
Yet the Human Rights Committee subsequently arrived at the opposite
conclusion in a series of decisions rendered against France on facts essentially
indistinguishable from those considered in Järvinen. In these cases, the
Committee rejected the reasonableness of a double-time civilian service alter-
native imposed in the interests of ensuring that only true conscientious
objectors would avoid military service:

Any differentiation, as the Committee has had the opportunity to state

repeatedly, must . . . be based on reasonable and objective criteria. In this
context, the Committee recognizes that the law and practice may establish
differences between military and national alternative service and that such
differences may, in a particular case, justify a longer period of service,
provided that the differentiation is based on reasonable and objective
criteria, such as the nature of the specific service concerned or the need for
a special training in order to accomplish that service. In the present case,
however, the reasons forwarded by the State party do not refer to such
criteria or refer to criteria in general terms without specific reference to the
author’s case, and are rather based on the argument that doubling the length
of service was the only way to test the sincerity of an individual’s convictions.
In the Committee’s view, such argument does not satisfy the requirement
that the difference in treatment involved in the present case was based on
reasonable and objective criteria. In the circumstances, the Committee finds
that a violation of article 26 occurred, since the author was discriminated
against on the basis of his conviction of conscience [emphasis added].502

501
HRC Comm. No. 295/1988, UN Doc. CCPR/C/39/D/295/1988, decided July 25, 1990.
502
Foin v. France, HRC Comm. No. 666/1995, UN Doc. CCPR/C/67/D/666/1995, decided
Nov. 3, 1999, at [10.3]. See also Maille v. France, HRC Comm. No. 689/1996, UN Doc.
CCPR/C/69/D/689/1996, decided July 10, 2000; and Venier and Nicolas v. France, HRC

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 1.5 p o s t - c o n v e n t i o n s o u r c e s o f re f u g e e r i g ht s 119

Regrettably, only a minority of the jurisprudence under Art. 26 follows this

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

1.5.5.3 Failure to Ensure Substantive Equality

A third concern is that the Human Rights Committee has traditionally shown
only modest willingness to act on the principle that a rule that applies to
everyone can nonetheless be discriminatory where the rule’s application
impacts differently on different groups of people. In PPC v. Netherlands,505
for example, the issue was whether an income support law that determined
Comm. Nos. 690/1996 and 691/1996, UN Docs. CCPR/C/69/D/690/1996 and CCPR/C/
69/D/691/1996, decided July 10, 2000. But in Young v. Australia, HRC Comm. No. 941/
2000, UN Doc. CCPR/C/78/D/941/2000, decided Aug. 6, 2003, the Committee’s refusal to
defer to the government’s assertion that it was “reasonable” to distinguish between same-
sex and opposite-sex couples for purposes of entitlement to veterans’ benefits led to
a finding of discrimination contrary to Art. 26. In contrast to the usual pattern of
deference, the Committee here noted that “[t]he State party provides no arguments on
how this distinction between same-sex partners, who are excluded from pension benefits
under law, and unmarried heterosexual partners, who are granted such benefits, is
reasonable and objective, and no evidence which would point to the existence of factors
justifying such a distinction has been advanced”: ibid. at [10.4]; affirmed in X v. Colombia,
HRC Comm. No. 1361/2005, UN Doc. CCPR/C/89/D/1361/2005, decided Mar. 30, 2007,
at [7.2].
503
Sadly, “the Committee generally offers sparse reasoning in its Views as to whether or not
different treatment is reasonable and objective”: Pobjoy, “Treating Like Alike,” at 225.
A rather unstructured analysis underpins many of the Committee’s decisions. For
example, in one case the Committee explicitly articulated the view that the disfranchise-
ment of past property owners in favor of current tenants was rendered reasonable by
virtue of the existence of a system to compensate the former owners. “The State party has
justified the (exclusionary) requirement that current tenants of former State-owned
residential property have a ‘buy first option’ even vis-à-vis the former owner of the
property with the argument that tenants contribute to the maintenance of the property
through improvements of their own. The Committee does not consider that the fact of
giving the current tenants of former State-owned property priority in the privatization sale
of such property is in itself unreasonable; the interests of the ‘current tenants’, who may
have been occupying the property for years, are deserving of protection. If the former
owners are, moreover, compensated on equal and non-discriminatory terms . . . the
interplay between Act XXV of 1991 and . . . Act LXVIII of 1993 can be deemed compatible
with article 26 of the Covenant”: Somers v. Hungary, HRC Comm. No. 566/1993, UN Doc.
CCPR/C/53/D/566/1993, decided July 23, 1996, at [9.8].
504
See e.g. Fredman, Discrimination, at 190–202. Indeed, the failure of the Human Rights
Committee to adopt a structured framework for discrimination analysis has been said to
lead to unwarranted subjectivity: S. Joseph and M. Castan, The International Covenant on
Civil and Political Rights: Cases, Materials, and Commentary (2013), at [23.49].
505
HRC Comm. No. 212/1986, UN Doc. CCPR/C/OP/2, decided Mar. 24, 1988.

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 120 1 e volutio n of the r efug ee rights regime

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

The Committee’s highly formalistic understanding of equality is also clear in

its response to a challenge to the legality of a Quebec language law that denied
merchants the right to advertise in other than the French language. The
Committee found no evidence of discrimination against the English-speaking
minority in that province on the grounds that the legislation contained only
“general measures applicable to all those engaged in trade, regardless of their
language.”507 The views of the Committee take no account of the fact that the
impact of the language law on French and English speakers was in fact quite
different. Whereas most French language merchants could continue to commu-
nicate with their majority clientele in their preferred language (French), the law
prohibited most English language merchants from advertising to their principal
customer base in its preferred language (English). The Human Rights
Committee did not even inquire whether there was in fact a difference in the
impact of the law on English and French language merchants, noting simply that
“[t]his prohibition applies to French speakers as well as to English speakers, so
that a French speaking person wishing to advertise in English, in order to reach
those of his or her clientele who are English speaking, may not do so.
Accordingly the Committee finds that the [English-speaking merchant] authors
have not been discriminated against on the ground of their language.”508
506
PPC v. Netherlands, ibid. at [6.2]. Like the Swedish school benefits cases, discussed at note
484, the facts in this case may not amount to discrimination, since the differential rights
allocation was not the result of stigmatization on the grounds of actual or imputed group
identity. This does not, however, make the differentiation “reasonable.”
507
Ballantyne and Davidson v. Canada and McIntyre v. Canada, HRC Comm. Nos. 359/1989
and 385/1989 (joined on Oct. 18, 1990), UN Docs. CCPR/C/40/D/359/1989 and CCPR/C/
40/D/385/1989, decided Mar. 31, 1993, at [11.5]. See also Singer v. Canada, HRC Comm.
No. 455/1991, UN Doc. CCPR/C/51/D/455/1991, decided July 26, 1994.
508
Ballantyne and Davidson v. Canada and McIntyre v. Canada, HRC Comm. Nos. 359/1989
and 385/1989 (joined on Oct. 18, 1990), UN Docs. CCPR/C/40/D/359/1989 and CCPR/C/

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 1.5 p ost-convention sources of refugee rights 121

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

40/D/385/1989, decided Mar. 31, 1993, at [11.5]. This is a case that cried out for nuanced
analysis under the affirmative action rubric. There are some important social reasons that
suggest the need to reinforce the place of the French language in Quebec society, but the
Committee ought logically to have given careful consideration to whether the particular
approach adopted was reasonable in the sense of adequately taking account of the individu-
ated capabilities and potentialities of persons outside the beneficiary group. Relevant issues
would include whether the legislation impairs the rights of members of the non-beneficiary
class more than is necessary to accomplish its objectives, and whether the negative impact of
the affirmative action program on members of the non-beneficiary group is disproportion-
ate to the good thereby sought to be achieved for those within the target group.
509
Prince v. South Africa, HRC Comm. No. 1474/2006, UN Doc. CCPR/C/91/D/1474/2006,
decided Oct. 31, 2007, at [7.5].
510
A pension in Belarus would only be granted if the applicant secured a personal identity
number (rather than applying by name). The applicant, a devout Orthodox Christian,
argued that “replacing her name with a number for the purposes of interaction with the
State authorities and society is demeaning, equating an individual, created in the image of
God, with a soulless object”: Yachnik v. Belarus, HRC Comm. No. 1990/2010, UN Doc.
CCPR/C/111/D/1990/2010, decided July 21, 2014, at [2.1].
511
Ibid. at [8.4], [2.4].
512
Ibid. at Dissenting Opinion, at [5]. The dissenters would have taken the view that the
requirement to secure an identity number was a reasonable limitation mandated by public
safety and order, consistent with Covenant Art. 18(3): ibid. at [4].

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 122 1 e volution of the r efugee rights regime

discrimination.513 Yet family reunification rules impact disproportionately

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

With regard to the application of article 26 of the Covenant in the field of

economic and social rights, it is evident that social security legislation,
which is intended to achieve aims of social justice, necessarily must make
distinctions. It is for the legislature of each country, which best knows the
socio-economic needs of the society concerned, to try to achieve social
justice in the concrete context. Unless the distinctions made are manifestly
513
HRC Comm. No. 68/1980, decided Mar. 31, 1981. It was held that the negative resettle-
ment assessment was “in conformity with the provisions of existing Canadian law, the
application of which did not in the circumstances of the present case give rise to any
question of discrimination”: ibid. at [8.2(c)].
514
Oulajin and Kaiss v. Netherlands, HRC Comm. Nos. 406/1990 and 426/1990, UN Docs.
CCPR/C/46/D/406/1990 and CCPR/C/46/D/426/1990, decided Oct. 23, 1992.
515
Ibid. at [2.5]. 516 Ibid. at [5.4].

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 1.5 p os t-convention sources of refugee rights 123

discriminatory or arbitrary, it is not for the Committee to reevaluate the

complex socio-economic data and substitute its judgment for that of the
legislatures of States parties [emphasis added].517

This unwillingness to consider the ways in which foreign citizenship or

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

517
Ibid. at [3] of the Individual Opinion of Messrs. Kurt Herndl, Rein Müllerson, Birame
N’Diaye, and Waleed Sadi.
518
HRC Comm. No. 475/1991, UN Doc. CCPR/C/50/D/475/1991, decided Mar. 31, 1994.
519
“[T]he Act does not distinguish between New Zealand citizens and foreigners . . . [A]
deduction takes place in all cases where a beneficiary also receives a similar [government-
administered] benefit . . . from abroad”: SB v. New Zealand, HRC Comm. No. 475/1991,
UN Doc. CCPR/C/50/D/475/1991, decided Mar. 31, 1994, at [6.2].
520
The seminal case was Simunek et al. v. Czech Republic, HRC Comm. No. 516/1992, UN
Doc. CCPR/C/54/D/516/1992, decided July 19, 1995. Much the same approach has been
adopted in Zavrel v. Czech Republic, HRC Comm. No. 1615/2007, UN Doc. CCPR/C/99/
D/1615/2007, decided July 27, 2010; Drda v. Czech Republic, HRC Comm. No. 1581/2007,
UN Doc. CCPR/C/100/D/1581/2007, decided Oct. 27, 2010; and Klain and Klain v. Czech
Republic, HRC Comm. No. 1847/2008, UN Doc. CCPR/C/103/D/1847/2008, decided Nov.
1, 2011. In some instances, however, the Committee has dismissed comparable claims,
citing inadmissibility concerns due to delay in submitting the communication or taking
account of temporal limits in the legislation deemed to be generally applicable.

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 124 1 e volution of the r efug ee rights regime

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

Distressingly, though, the same Czech legislation has survived scrutiny

when challenged as true indirect discrimination. While the early cases
focused on the fact that non-citizens whose property had been expropriated
were unable to enjoy the same compensation as citizens, more recent chal-
lenges have posited that the temporal bar on compensation for property
confiscated before February 25, 1948 was indirectly discriminatory on
grounds of nationality. Because expropriations in 1945 affected German
and Hungarian nationals, it was argued that the legislative differentiation
gave rise to effects-based discrimination. While the majority of the
Committee dismissed the complaint on the simplistic basis that “the property
lies outside the scope of the challenged 1991 law owing to temporary restric-
tions that were applicable to all equally,”523 three members of the Committee
dissented:
[T]he Committee is adopting an unusually narrow interpretation of article
26 by considering that the effects of a law are perceived only by those who
fall within its scope . . . [But] a law whose scope was limited ratione
521
The issue in Simunek et al. v. Czech Republic, HRC Comm. No. 516/1992, UN Doc. CCPR/
C/54/D/516/1992, decided July 19, 1995, was whether the Czech government had discrim-
inated by passing a law which granted restitution for property confiscated during the
Communist era, but only to those who were citizens and permanent residents of the Czech
Republic on September 30, 1991.
522
Adam v. Czech Republic, HRC Comm. No. 586/1994, UN Doc. CCPR/C/57/D/586/1994,
decided July 23, 1996. See also e.g. Blazek v. Czech Republic, HRC Comm. No. 857/1999,
UN Doc. CCPR/C/72/D/857/1999, decided July 12, 2001, at [5.8]; and Brok v. Czech
Republic, HRC Comm. No. 774/1997, UN Doc. CCPR/C/73/D/774/1997, decided Oct.
31, 2001, at [7.2].
523
X v. Czech Republic, HRC Comm. No. 1961/2010, UN Doc. CCPR/C/113/D/1961/2010,
decided Apr. 2, 2015, at [6.4].

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 1.5 p os t-convention sources of refugee rights 125

temporis or ratione personae may have discriminatory effects, whether or

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

Given this reluctance genuinely to interrogate the discriminatory effects on

non-citizens of superficially neutral legislation, how will the Committee
respond when called upon to assess the reasonableness of rules that discrimin-
ate in fact against non-citizens despite their complete facial neutrality – includ-
ing, for example, rules on immigration, child support, and pension entitlement
adjudicated in earlier cases without the benefit of an effects-based analysis?525

524
Ibid. at Individual opinion of members Olivier de Frouville, Mauro Politi, and Victor
Manuel Rodríguez-Rescia, at [5], [7]. Similar concerns were earlier raised by the same
Committee members, also dissenting in B and C v. Czech Republic, HRC Comm. No. 1967/
2010, UN Doc. CCPR/C/113/D/1967/2010, decided Apr. 2, 2010. Indeed, the Committee
had earlier agreed in principle that “an indirect discrimination may result from a failure to
treat different situations differently, if the negative results of such failure exclusively or
[disproportionately] affect persons of a particular race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or other status”:
Godfried and Pohl v. Austria, HRC Comm. No. 1160/2003, UN Doc. CCPR/C/81/D/
1160/2003, decided July 9, 2004.
525
It is important to note that in both the progressive strand of property restitution cases and
even in the decision of Derksen v. Netherlands, HRC Comm. No. 976/2001, UN Doc.
CCPR/C/80/D/1976/2001, decided Apr. 1, 2004, the impugned legislation was, in fact,
explicit about the category of persons to whom benefits would be denied (non-citizens in
the former cases, children born before a particular date in the latter decision). The
Committee has yet to apply the indirect discrimination doctrine to a situation in which
there is no such explicit limitation in the law or practice being scrutinized. Moreover, the
Committee in Derksen, ibid., seemed at pains to make clear that the government’s decision
to extend survivorship benefits to the children of unmarried parents was critical to the
finding of discrimination. “In the circumstances of the present case, the Committee
observes that under the earlier [law] the children’s benefits depended on the status of
the parents, so that if the parents were unmarried, the children were not eligible for the
benefits. However, under the new [law], benefits are being denied to children born to
unmarried parents before 1 July 1996 while granted in respect of similarly situated
children born after that date”: ibid. at [9.3]. Yet if the Committee is truly committed to
an effects-based approach to the identification of indirect discrimination, it is unclear why
a law designed along the lines of the former law – which provided benefits for the children
of married parents, but not for the children of unmarried parents – would not amount to
discrimination in fact against the children of unmarried parents. Indeed, the rejection in
this same case of a claim by the child’s mother for benefits on the grounds that she and her
(now deceased) partner failed to be married and hence to establish entitlement under the

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 126 1 e volution of the r efug ee rights regime

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

survivorship regime applicable to spouses suggests the extraordinarily fragile nature of the
Committee’s new-found commitment to the eradication of indirect discrimination.
526
As the International Court of Justice has observed, the Human Rights Committee has
appropriately insisted in other contexts of consideration on the proportionality of restric-
tions of rights before finding them to be lawful. “The Court would observe that the
restrictions provided for under Article 12, paragraph 3, of the International Covenant
on Civil and Political Rights [dealing with freedom of movement] are, by the very terms of
that provision, exceptions to the right of freedom of movement contained in paragraph 1.
In addition, it is not sufficient that such restrictions be directed to the ends authorized;
they must also be necessary for the attainment of those ends. As the Human Rights
Committee put it, they ‘must conform to the principle of proportionality’ and ‘must be
the least intrusive instrument amongst those which might achieve the desired result’
(CCPR/C/21/Rev.1/Add.9, General Comment No. 27, [14])”: Legal Consequences of the
Construction of a Wall in the Occupied Palestinian Territory, [2004)] ICJ Rep 136, decided
July 9, 2004, at [136].
527
“These victims of political persecution sought residence and citizenship in other countries.
Taking into account that the State party itself is responsible for the departure of the
authors, it would be incompatible with the Covenant to require them permanently to
return to the country as a prerequisite for the restitution of their property or for the
payment of appropriate compensation”: Simunek et al. v. Czech Republic, HRC Comm.
No. 516/1992, UN Doc. CCPR/C/54/D/516/1992, decided July 19, 1995, at [11.6].
528
In Blazek v. Czech Republic, HRC Comm. No. 857/1999, UN Doc. CCPR/C/72/D/857/
1999, decided July 12, 2001, the Committee observed “that it cannot conceive that the
distinction on grounds of citizenship can be considered reasonable in the light of the fact
that the loss of Czech citizenship was a function of their presence in a State in which they
were able to obtain refuge”: ibid. at [5.8]. This is consistent with Art. 6 of the Refugee
Convention, which requires that refugees be exempted from requirements “which by their
nature a refugee is incapable of fulfilling”: Refugee Convention, at Art. 6. See generally
Chapter 3.2.3.

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 1.5 pos t-co nvention so urces of refugee rights 127

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

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 2

An Interactive Approach to Interpreting

Refugee Rights

Refugee rights at international law are nearly always codified in treaties.1 The
core of the refugee rights regime is the 1951 Refugee Convention2 and its 1967
Protocol,3 still the only source of globally applicable refugee rights. But as the
analysis in Chapter 1 has shown, this core is today supplemented by both
regional refugee rights standards4 and a more general international system of
international human rights law.5 Reading these standards together – as the
analysis in Chapters 4–7 does – the treaty-based system for the advancement of
refugee rights is remarkably comprehensive.
Three challenges must, however, be acknowledged.
First and most fundamentally, nearly one-third of the world’s refugees live
in states that are not bound to grant them rights under the Refugee Convention
or Protocol.6 These persons are refugees at international law, but have no
means by which to claim refugee rights.7 This dilemma seems unlikely to be
resolved any time soon, since new accessions to the Refugee Convention and
1
But see M.-T. Gil Bazo, “Asylum as a General Principle of International Law,” (2015) 27(1)
International Journal of Refugee Law 3, making a neo-natural law argument that there is
a more foundational right to asylum grounded in “the pre-existence of a fundamental social
value”: ibid. at 15.
2
Convention relating to the Status of Refugees, 189 UNTS 2545 (UNTS 2545), done July 28,
1951, entered into force Apr. 22, 1954 (Refugee Convention). The origins of the Refugee
Convention are discussed at Chapter 1.4.
3
Protocol relating to the Status of Refugees, 606 UNTS 8791 (UNTS 8791), done Jan. 31,
1967, entered into force Oct. 4, 1967 (Refugee Protocol). The advent of the Refugee Protocol
is discussed at Chapter 1.5.1.
4
See Chapter 1.5.3. 5 See Chapters 1.5.4–1.5.5.
6
Countries hosting at least 5,000 refugees but that have not signed or ratified the Refugee
Convention or Protocol include Bangladesh, India, Indonesia, Iraq, Jordan, Lebanon, Libya,
Malaysia, Nepal, Pakistan, Syria, and Thailand: UNHCR, “Global Trends: Forced
Displacement in 2018,” at Annex, Table 1; and www.unhcr.org/protect/PROTECTION/
3b73b0d63.pdf, accessed Feb. 1, 2020. In addition, the country hosting the world’s largest
refugee population – Turkey (3.7 million refugees: ibid.) – has no legal duty to protect non-
European refugees by virtue of its geographical reservation to the Convention: see Chapter
1.4.3 at note 91.
7
Under the Convention, rights are not enforceable at large but require that a refugee at least
come under the jurisdiction of a state party. See Chapter 3.1; and generally J. Hathaway and
M. Foster, The Law of Refugee Status (2014), at 17 ff.
128

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

8 9
See Chapter 1.4.2 at note 83. See note 6.
10
Refugee rights can be indirectly secured in non-party states to some extent by way of
cooperation agreements entered into with UNHCR: see generally M. Zieck, UNHCR’s
Worldwide Presence in the Field: A Legal Analysis of UNHCR’s Cooperation Agreements
(2006).
11
International Covenant on Economic, Social and Cultural Rights, 993 UNTS 3 (UNTS
14531), adopted Dec. 16, 1966 (“Economic and Social Covenant”); International Covenant
on Civil and Political Rights, 999 UNTS 1721 (UNTS 14668), adopted Dec. 16, 1966 (“Civil
and Political Covenant”).
12
J. Hathaway, The Rights of Refugees under International Law (2005) (the first edition of the
current volume), at 9, n. 31.
13
See e.g. O. Schacter, International Law in Theory and Practice (1991); B. Lepard, Customary
International Law: A New Theory with Practical Applications (2010); and A. Guzman and
J. Hsiang, “Some Ways that Theories on Customary International Law Fail: A Reply to
Laszlo Blutman,” (2014) 25(2) European Journal of International Law 553.
14
See e.g. N. Petersen, “Customary Law Without Custom? Rules, Principles, and the Role of
State Practice in International Norm Creation,” (2007) 23(2) American University
International Law Review 275, at 307–308; and M. Biddulph and D. Newman,
“A Contextualized Account of General Principles of International Law,” (2014) 26 Pace
International Law Review 286, at 296.
15
As regards custom, “[i]t appears to be still a perfectly tenable view that there is in fact no
general international customary law of human rights, all the existing rights and obligations
of states in this domain (with some exceptions) being based, mediately or immediately, on
treaty commitments, or on general international declarations that have in some manner . . .
a similar degree of binding force”: H. Thirlway, “Human Rights in Customary Law: An
Attempt to Define Some of the Issues,” (2015) 28(3) Leiden Journal of International Law
495, at 497.
16
An important exception is that there is presently some judicial support for the view that
non-refoulement is a norm of customary international law: see Chapter 4.1.6. More
generally, the Inter-American Court of Human Rights has opined that “[w]ith the

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usual consequence of the failure of states to sign on to the Refugee Convention

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

protection provided by the 1951 Convention and its 1967 Protocol, the institution of
asylum assumed a specific form and mechanism at the global level: that of refugee status”:
Pacheco Tineo v. Bolivia, Ser. C No. 272 (IACtHR, Nov. 25, 2013), at [139]. This might be
read to argue for a general duty to grant asylum on the terms mandated by the Refugee
Convention, though this position is difficult to reconcile to the failure of more than one-
quarter of the world’s governments to agree to be bound by that treaty. Somewhat greater
progress was made by the creative invocation of national law to provide a measure of legal
protection to refugees in non-party states. For example, the Supreme Court of India has
drawn on the protection of life and liberty in the Indian constitution to guarantee refugees
the effective equivalent of protection against refoulement: National Human Rights
Commission v. State of Arunachal Pradesh, (1996) 83 AIR 1234 (In. SC, Jan. 9, 1996).
The Indian Supreme Court had earlier affirmed that a duty of non-refoulement is inherent
in the right to seek asylum set by Art. 14 of the Universal Declaration of Human Rights,
though it recognized that this duty is a matter of “moral authority” rather than a strict legal
obligation: Khudiram Chakma v. State of Arunachal Pradesh, [1994] AIR 1461 (In. SC, Apr.
27, 1993). Another example is Hong Kong, where the judiciary has sought to fill the
normative void in that jurisdiction by recognizing a customary legal duty of non-
refoulement: see Chapter 4.1.6. In general however, applying refugee law’s “territory-
based paradigm of state duties to inherently trans-border phenomena such as refugee
movements, global in scope and in impact, leaves enormous problems for which no state
bears responsibility”: J. Field, “Bridging the Gap between Refugee Rights and Reality:
A Proposal for Developing International Duties in the Refugee Context,” (2010) 22(4)
International Journal of Refugee Law 512, at 513.
17
M. Smith, “Warehousing Refugees: A Denial of Rights, a Waste of Humanity,” World
Refugee Survey 2004, 38.
18
See Chapter 1.5.4 at note 387. 19 See note 6. 20 See Chapters 4–7.

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 2 int erac ti ve interp r et at ion of r e fugee r ights 131

domesticated.21 Given the frequent disinclination of governments to make

internationally agreed refugee rights justiciable under national law, the
requirement to transform international law into domestic law before rights
are enforceable is in principle a significant hurdle. In practice, however, all
leading common law courts take account of international refugee rights, albeit
usually indirectly as an interpretive aid in the construction of domestic law.22
As the Supreme Court of Canada recently explained,
This [approach] follows from the fact that to interpret a Canadian law in
a way that conflicts with Canada’s international obligations risks incursion
by the courts in the executive’s conduct of foreign affairs and censure
under international law . . . [T]his Court has repeatedly endorsed and
applied the interpretive presumption that legislation conforms with the
state’s international obligations. This interpretive presumption is not
peculiar to Canada. It is a feature of legal interpretation around the
world.23
A variant of this second challenge arises in states of the European Union (EU)24
where regional norms not always aligned with international obligations25 are
21
“In England the conclusion and ratification of treaties are within the prerogative of the
Crown, and if a transformation doctrine were not applied, the Crown could legislate for the
subject without parliamentary consent, in violation of the basal notion of parliamentary
sovereignty . . . Thus, as a strongly dualist system, English law will not ordinarily permit
unimplemented treaties to be given legal effect by the courts”: J. Crawford, Brownlie’s
Principles of Public International Law (2012), at 63. Similarly, the United States generally
considers human rights treaties not to be “self-executing,” meaning that they may be
enforced by courts only if and when implementing legislation is enacted: P. Venetis,
“Making Human Rights Treaty Law Actionable in the United States: The Case for
Universal Implementing Legislation,” (2011) 63(1) Alabama Law Review 97, at 115.
22
“[T]here is a presumption that English law accords with international obligations”:
M. Shaw, International Law (2014), at 110. In the United States, domestic laws are not to
be construed so as to violate international law “if any other possible construction” exists:
The Charming Betsy, (1804) 6 US (2 Cranch) 64, at 118.
23
B010 v. Canada, [2015] SCC 58 (Can. SC, Nov. 27, 2015), at [47]–[48].
24
The same dilemma might in theory arise in Africa, the only other region that has estab-
lished a binding regional refugee law regime. In contrast to European Union law, the
Convention Governing the Specific Aspects of Refugee Problems in Africa, 1001 UNTS 45
(UNTS 14691), entered into force June 20, 1974 (“AU Refugee Convention,” discussed at
Chapter 1.5.3), positively affirms only a limited subset of refugee rights – non-refoulement
and “asylum,” non-discrimination, voluntary repatriation, and travel documents – mean-
ing that in all other respects the rights set by the Refugee Convention simply apply without
qualification. The potential for conflict is greatest where the AU Refugee Convention
appears to set limits on rights in terms different than the Refugee Convention, specifically
as regards internal freedom of movement (Art. II(6)) and the prohibition of subversive
activities (Art. III), discussed at Chapters 5.2 and 6.5 respectively.
25
See Chapter 1.5.3 at notes 293–318. For example, the EU Reception Directive provides that
persons seeking recognition of their refugee status “may move freely within the territory of
the host Member State or within an area assigned to them by that Member State [emphasis
added],” a limitation that is misaligned with the comparable provision in the Refugee

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

Convention which disallows restrictions on freedom of movement unless those restrictions

are demonstrably “necessary”: Directive laying down standards for the reception of appli-
cants for international protection (recast), No. 2013/33/EU (June 26, 2013) (“EU Reception
Directive”), at Art. 7(1); and Refugee Convention, Art. 31(2). In some other respects,
however, the regional standard is more generous than international refugee law requires,
e.g. as regards access to employment: compare EU Reception Directive, Art. 15(1) and
Refugee Convention, Art. 17(1).
26
See C. Costello, The Human Rights of Migrants and Refugees in European Law (2016), at
24–38.
27
Consolidated Version of the Treaty on the Functioning of the European Union, May 9,
2008, OJ 2008 C115/47, at Art. 78 (requiring the development of “a common policy on
asylum” that “must be in accordance with” the Refugee Convention). The European
Union’s Charter of Fundamental Rights similarly provides that the right to asylum is to
be understood “with due respect for the rules of” the Refugee Convention: Charter of
Fundamental Rights of the European Union, Dec. 7, 2000, OJ 2012 C326/02, at Art. 18.
28
Kreis Warendorf v. Ibrahim Alo and Amira Osso v. Region Hannover, Dec. Nos. C/443/14
and C/444/14 (CJEU, Mar. 1, 2016), at [29]. The Court’s jurisprudence is consistent in this
respect, stemming back to Abdulla and Others v. Germany, Joined Dec. Nos. C-175/08,
C-176/08, C-178/08, and C-179/08, [2010] ECR I-01493 (CJEU, Mar. 2, 2010), at [52]–[53]
(in which it observed that the EU Qualification Directive was adopted, inter alia, “to guide
the competent authorities of the Member States in the application of” the Refugee
Convention). The duty to respect Refugee Convention norms is also clear in the text of
relevant EU directives: see Chapter 1.5.3 at note 285.
29
Kreis Warendorf v. Ibrahim Alo and Amira Osso v. Region Hannover, Dec. Nos. C/443/14
and C/444/14 (CJEU, Mar. 1, 2016), at [35].

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 2 int e ra ct i v e i n te r pr e tat i o n o f re f u g e e ri g h t s 133

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

30
Ibid. at [37].
31
The International Court of Justice has determined that the core rules of treaty inter-
pretation stated in the Vienna Convention are principles of customary international law.
For example,“[a]lthough that Convention is not in force between the Parties and is not, in
any event, applicable to treaties concluded before it entered into force . . . it is well
established that Articles 31 to 33 of the Convention reflect rules of customary international
law”: Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea
(Nicaragua v. Colombia), [2016] ICJ Rep 3, at [35]. Similarly, the Court has affirmed that it
will interpret international law “in terms of customary international law on the subject, as
reflected in Articles 31 and 32 of the Vienna Convention on the Law of Treaties . . .
Consequently, neither the fact that Nicaragua is not a party to the Vienna Convention
on the Law of Treaties nor the fact that the treaty which is to be interpreted here
considerably pre-dates the draft of the said Convention has the effect of preventing the
Court from referring to the principles of interpretation set forth in Articles 31 and 32”:
Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicaragua), [2009] ICJ
Rep 213, at [47]. See generally the precedents cited at Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and
Montenegro), Judgment, [2007] ICJ Rep 43, at [160]. Thus,“Articles 31 and 32 of the Vienna

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 134 2 i nt e ra ct i v e i n te r pr e tat i o n o f re f u g e e ri g h t s

approach to treaty interpretation indefensible as a matter of international law,

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

2.1 The Perils of “Ordinary Meaning”

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

Convention on the Law of Treaties [that] set forth, respectively, the general rule of
interpretation and the rule on supplementary means of interpretation . . . apply as custom-
ary international law”: International Law Commission, “Subsequent agreements and sub-
sequent practice in relation to the interpretation of treaties: Text of the draft conclusions
provisionally adopted by the Drafting Committee on first reading,” UN Doc. A/CN.4/L.874
(June 6, 2016), at Draft Conclusion 2(1).
32
Vienna Convention, at Art. 31(1).
33
“Article 31(4) . . . was nearly deleted by the International Law Commission in a late draft of
what became the Vienna Convention, on the basis that the so-called ‘special’ meaning
would in any case be the ‘ordinary’ meaning in the particular context, in terms of the Article
31(1) rules. The reference to a special meaning does not seem to add much to the other
provisions, probably only emphasizing the burden of proof resting on those claiming such
a meaning”: M. Lennard, “Navigating by the Stars: Interpreting the WTO Agreements,”
(2002) 5 Journal of International Economic Law 17 (Lennard, “Navigating by the Stars”), at
44–45. In line with this view, no separate treatment is given here to Art. 31(4) sources.
34
“The Commission’s proposals . . . were adopted virtually without change by the Conference
and are now reflected in Articles 31 and 32 of the Convention”: I. Sinclair, The Vienna
Convention on the Law of Treaties (1984) (Sinclair, Vienna Convention), at 115.
35
Mortenson describes the Vienna Convention’s interpretive process as “a recursive and
inelegant process that would spiral toward the meaning of a treaty, rather than as a rigidly
linear algorithm tied to a particular hierarchical sequence”: J. Mortenson, “The Travaux of
Travaux: Is the Vienna Convention Hostile to Drafting History?,” (2013) 107 American
Journal of International Law 780 (Mortenson, “Travaux of Travaux”), at 781.

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 2.1 the perils of “ordinary meaning ” 135

to indicate that the application of the means of interpretation in the article

would be a single combined operation. All the various elements, as they
were present in any given case, would be thrown into the crucible, and
their interaction would give the legally relevant interpretation. Thus [Art.
31] is entitled “General rule of interpretation” in the singular, not “General
rules” in the plural, because the Commission desired to emphasize that the
process of interpretation is a unity and that the provisions of the article
form a single, closely integrated rule.36
It is thus clear that Art. 31(1) embodies what is termed here an interactive
understanding of treaty interpretation.37 The article “refers the interpreter to
the concurrent use of no less than three methods, viz., the grammatical (ordin-
ary meaning to be given to the terms of the treaty), the systematic (in their
context) and the teleological method (in the light of its object and purpose).”38
There is no hierarchy among these points of reference,39 each of which must
always be taken into account:
36
[1966] 2 Yearbook of the International Law Commission, at 219–220. The Commission
confirmed this approach in 2013, finding that “[t]he interpretation of a treaty consists of
a single combined operation, which places appropriate emphasis on the various means of
interpretation indicated, respectively, in articles 31 and 32”: International Law
Commission, “Report on the Work of the 65th Session,” UN Doc. A/68/10, at
Conclusion 1(5) (2013).
37
This phrasing has been employed in a report of the International Law Commission: “Second
report on subsequent agreements and subsequent practice in relation to treaty interpretation,”
UN Doc. A/CN.4/671 (Mar. 26, 2014), at [20]. An interactive approach is to be distinguished
from a hierarchical approach under which context, object, and purpose are to be considered
only where a treaty’s text cannot be relied upon to disclose its “ordinary meaning”: see e.g.
M. Fitzmaurice, “The Law and Procedure of the International Court of Justice 1951–4: Treaty
Interpretation and Other Treaty Points,” (1957) 33 British Yearbook of International Law 203,
at 204–207; and D. O’Connell, International Law (1970), at 253 (“In so far as [the logic inherent
in the treaty] can be discovered by reference to the terms of the treaty itself, it is impermissible
to depart from those terms. In so far as it cannot, it is permissible”). An interactive approach is
also to be distinguished from a teleological approach, in which object and purpose are treated as
supreme: see e.g. Separate Opinion of Judge Cançado Trindade in Alleged Violations of
Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia), [2016]
ICJ Rep 3, at [22]–[27].
38
M. Bos, “Theory and Practice of Treaty Interpretation,” (1980) 27 Netherlands
International Law Review 135 (Bos, “Theory and Practice”), at 145; P. Reuter,
Introduction to the Law of Treaties (1995) (Reuter, Law of Treaties), at 75 (“These carefully
and subtly graduated elements constitute, primarily and simultaneously, the basic guide-
lines of interpretation”).
39
“Although at first sight paragraphs (1), (2) and (3) might appear to create a hierarchy of
legal norms, that is not so: the three paragraphs represent a logical progression, nothing
more”: A. Aust, Modern Treaty Law and Practice (2013) (Aust, Modern Treaty Law), at 208.
Judge Schwebel put the point succinctly, arguing that the apparently “hierarchical structure
of Articles 31 and 32 of the Vienna Convention . . . is unreal”: S. Schwebel, “May
Preparatory Work Be Used to Correct Rather Than Confirm the ‘Clear’ Meaning of
a Treaty Provision?,” in J. Makarczyk ed., Theory of International Law at the Threshold of
the 21st Century: Essays in Honour of Krzysztof Skubiszewski 797 (1996) (Schwebel,

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[I]nterpretation remains one integrated operation, which uses several

tools simultaneously to shed light from different angles on the interpreted
text; tools that should not be seen as watertight compartments or as a series
of separate sub-operations but, rather, as connected (even overlapping)
and mutually reinforcing parts of a whole; of a continuum or continuous
and multifaceted process that cannot be reduced to a mechanical oper-
ation and which partakes as much of art (the art of judgement) as of
science (the science of law).40
The guidance afforded by the International Court of Justice is similarly
supportive of an interactive understanding of the basic rule of treaty
interpretation.41 The Court has determined that
one must certainly start . . . from the “ordinary meaning” of the terms
used . . . but not in isolation. For treaty interpretation rules there is no
“ordinary meaning” in the absolute or the abstract. That is why Article 31 of
the Vienna Convention refers to “good faith” and to the ordinary meaning
“to be given” to the terms of the treaty “in their context and in light of its
object and purpose.” It is, therefore, a fully qualified “ordinary
meaning” . . . The elucidation of the “ordinary meaning” of terms used
in the treaty to be interpreted requires . . . that due account be taken of
those various interpretative principles and elements, and not only of the
words or expressions used in the interpreted provisions in isolation
[emphasis added].42

“Preparatory Work”), at 799. Thus, “Article 31 accords exactly the same status to all the
materials it mentions”: D. Regan, “Understanding What the Vienna Convention Says about
Identifying and Using ‘Sources for Treaty Interpretation,’” in S. Besson and J. d’Aspremont
eds., The Oxford Handbook on the Sources of International Law 1047 (2017) (Regan,
“Understanding What the Vienna Convention Says”), at 1051.
40
G. Abi-Saab, “The Appellate Body and Treaty Interpretation,” in G. Sacerdoti, A. Yanovich,
and J. Bohanes eds., The WTO at Ten: The Contribution of the Dispute Settlement System
453 (2006), at 459.
41
“After an initial period of hesitation, the ICJ began to refer to articles 31 and 32 of the
Vienna Convention in the 1990s . . . Although the Court usually begins its reasoning by
looking at the text, it has, in general, not relied on a primarily textual approach but rather
resorted to other means of interpretation. The Court’s reluctance to assign a more prom-
inent role to a provision’s ordinary meaning is ultimately the consequence of the Court’s
emphasis on object and purpose”: International Law Commission, “First report on subse-
quent agreements and subsequent practice in relation to treaty interpretation,” UN Doc. A/
CN.4/660, at [10], [19] (2013). The European Court of Human Rights has also adopted the
view that “[i]n the way in which it is presented in the ‘general rule’ of Article 31 of the
Vienna Convention on the Law of Treaties, the process of interpretation is a unity, a single
combined operation; this rule, closely integrated, places on the same footing the various
elements enumerated in the four paragraphs of the Article”: Golder v. United Kingdom,
(1975) 1 EHRR 524 (ECtHR, Feb. 21, 1975), at [30].
42
Land, Island and Maritime Frontier Dispute (El Salvador v. Honduras), [1992] ICJ Rep 351,
at 719 (Separate Opinion of Judge Torres Bernardez). In at least one more recent case,
however, the Court appeared to give a more prominent role to text in the interpretive

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 2.1 the perils of “ordinary meaning ” 137

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

process: see Legality of Use of Force (Serbia and Montenegro v. Canada), Preliminary
Objections, [2004] ICJ Rep 1307, at [100].
43
Constitution of the Maritime Safety Committee of the Intergovernmental Maritime
Consultative Organization (IMCO), [1960] ICJ Rep 150, at 158.
44
Certain Expenses of the United Nations, [1962] ICJ Rep 151, at 184 (Separate Opinion of
Judge Spender).
45
See e.g. EN (Serbia) v. Secretary of State for the Home Department, [2009] EWCA Civ 630
(Eng. CA, June 26, 2009), at [118], per Laws J. (concurring): “[A] treaty usually represents
a negotiated settlement, a compromise, whose terms will have been carefully chosen so as to
identify the limits of what has been agreed. True it is that sometimes the edges are left
unclear; that, too, may be deliberate, the parties preferring to leave some matters to the
chance of judicial interpretation rather than run the risk of losing the agreement altogether.
Overall, however . . . any issue of what may be implied into the treaty’s express terms has to
be approached with the courts with great caution. We are not here to overstep what was
agreed after painstaking negotiation . . . [A]ny gloss on the express words . . . is to be
avoided.”
46
McNair was of the view that the duty to give treaty terms their “ordinary meaning” “begs
the question whether the words are, or are not clear – a subjective matter because they may
be clear to one man and not clear to another, and frequently to one or more judges and not
to their colleagues”: Lord McNair, The Law of Treaties (1961) (McNair, Treaties), at 372.
47
Bos, “Theory and Practice,” at 149. Justice Kirby of the High Court of Australia, while
acknowledging that reliance on dictionaries is “a natural enough course to adopt, common
in elucidating the meaning of statutes and other written instruments expressed in words,”
nonetheless opined that he was “now inclined to see more clearly than before the dangers in
the use of dictionary definitions” in the context of construing an international treaty:
Minister for Immigration and Multicultural Affairs v. Khawar, (2002) 2010 CLR 1 (Aus.
HC, Apr. 11, 2002), at [106], [108].
48
“[I]t is an approach which lends itself to an unseemly ransacking of dictionaries for the mot
juste appropriate to the case at hand. This does not assist in a principled analysis of the
issues”: Refugee Appeal 71427/99 (NZ RSAA, Aug. 16, 2000), at 11.
49
“When a treaty has been authenticated in two or more languages, the text is equally
authoritative in each language, unless the treaty provides or the parties agree that, in case
of divergence, a particular text shall prevail”: Vienna Convention, at Art. 33(1).

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 138 2 int era ct ive inter pr e ta tion of refugee right s

refugee and other international human rights treaties.50 In such circumstances,

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

50
In the case of the Refugee Convention, the English and French texts are equally authorita-
tive: Refugee Convention, at Conclusion. For the Refugee Protocol, as well as for the two
Human Rights Covenants, the situation is still more complex, as the Chinese, English,
French, Russian, and Spanish texts are equally authentic: Refugee Protocol, at Art. XI; Civil
and Political Covenant, at Art. 53; Economic and Social Covenant, at Art. 31. As Alston and
Goodman observed, “[s]ometimes corresponding words in the different versions may shed
more light on the intended meaning; at other times, they generate greater ambiguity”:
P. Alston and R. Goodman, International Human Rights (2013), at 118.
51
“The Refugee Convention must be given an independent meaning . . . without taking
colour from distinctive features of the legal system of any individual contracting state. In
principle there can be only one true interpretation of a treaty”: R v. Secretary of State for the
Home Department ex parte Adan, [2001] 2 AC 477 (UK HL, Dec. 19, 2000), at 516, per Lord
Steyn. As Regan has observed, “[t]he goal of interpretation under the VCLT is not uniform
assignment of a particular meaning to particular words. The goal is to make of the treaty
a coherent normative whole that realizes the parties’ common intentions”: Regan,
“Understanding What the Vienna Convention Says,” at 1051.
52
“Choosing to rely upon nothing else but the text of the treaty, one delivers onself up to all its
possible shortcomings . . . For, as one might have expected, it is not immediately clear what
the implications of the concept are: what, indeed, is the ordinary sense of ‘ordinary
meaning’?”: Bos, “Theory and Practice,” at 147–149.
53
While insisting that the Refugee Convention must be interpreted “in the light of its object
and purpose . . . as an international instrument, not a domestic statute,” the Supreme Court
of the United Kingdom nonetheless appropriately cautioned that “the starting point of the
construction exercise should be the text of the Convention itself . . . There is no want of
good faith if the Convention is interpreted as meaning what it says and the contracting
states decline to do something that its language does not require them to do”: R (ST,
Eritrea) v. Secretary of State for the Home Department, [2012] UKSC 12 (UK SC, Mar. 21,
2012), at [30]–[31]. This view aligns with the earlier approach taken by the Court of Appeal
in R (Hoxha) v. Secretary of State for the Home Department, [2002] EWCA Civ 1403 (Eng.
CA, Oct. 14, 2002), at [48], where the Court determined that the broad humanitarian aims
of the treaty could not override the “agreed limitations which are contained within the
terms of the Convention itself,” specifically “the particular causes of persecution which
have to be shown.”
54
For this reason, “[w]here [a literal] method of interpretation results in a meaning incom-
patible with the spirit, purpose and context of the clause or instrument in which the words
are contained, no reliance can validly be placed on it”: South West Africa Case (Ethiopia
v. South Africa; Liberia v. South Africa), Preliminary Objections, [1962] ICJ Rep 319, at 336.
55
“It is of course true that in construing any document the literal meaning of the words used
must be the starting point. But the words must be construed in context, and an instrument
such as the Refugee Convention must be given a purposive construction consistent with its
humanitarian aims”: R v. Asfaw, [2008] UKHL 31 (UK HL, May 21, 2008), at [11]. The
Inter-American Court of Human Rights has similarly observed that “the ‘ordinary

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 2.2 co nt e xt 139

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

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

meaning’ of terms cannot of itself become the sole rule, for it must always be considered
within its context and, in particular, in the light of the object and purpose of the treaty”:
Proposed Amendments to the Naturalization Provisions of the Constitution of Costa Rica
(Advisory Opinion OC-4/84), Ser. A No. 4 (IACtHR, Jan. 19, 1984), at [23]; and Article 55
of the American Convention on Human Rights (Advisory Opinion OC-20/09), Ser. A No. 20
(IACtHR, Sept. 29, 2009), at [26].
56
Aust, Modern Treaty Law, at 206. One of the earliest clear commitments to a broad,
interactive understanding of treaty interpretation in the context of refugee law was stated
by Chief Justice Brennan of the High Court of Australia: “In interpreting a treaty, it is
erroneous to adopt a rigid priority in the application of interpretative rules . . . Although
the text of a treaty may itself reveal its object and purpose or at least assist in ascertaining its
object and purpose, assistance may also be obtained from extrinsic sources. The form in
which a treaty is drafted, the subject to which it relates, the history of its negotiations and
comparison with earlier or amending instruments relating to the same subject may warrant
consideration in arriving at the true interpretation of its text”: Applicant “A” and Another
v. Minister for Immigration and Multicultural Affairs, (1997) 190 CLR 225 (Aus. HC, Feb.
24, 1997), per Brennan C.J. As subsequently observed by two judges of the Full Federal
Court, Chief Justice Brennan’s approach provides that “a wider range of extrinsic sources
may be referred to than in the case of domestic statutes and they are not only legitimately
considered after some ambiguity has been discovered. The point of the ‘holistic’ approach is
to enable a simultaneous consideration of the treaty text and useful and valid extrinsic
materials elucidating it”: QAAH of 2004 v. Minister for Immigration and Indigenous Affairs,
[2005] FCAFC 136 (Aus. FFC, July 27, 2005), per Wilcox J. and Madgwick J. (dissenting).
57
Vienna Convention, at Art. 31(2)–(3).
58
Consideration must be given to “any subsequent practice in the application of the treaty
which establishes the agreement of the parties regarding its interpretation”: Vienna
Convention, at Art. 31(3)(b).

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 140 2 in t er a c tiv e i nt e r p r e t a t i o n o f r ef u g ee r i g h ts

more detail below59 – it is thus clear that the analysis of context is in fact a textual
enterprise, albeit one that requires attention to matters significantly beyond the
specific provision that is the focus of analysis.60
Turning first to the core contextual inquiry, some issue-specific value is
clearly garnered from the Final Act of the conference that adopted the Refugee
Convention61 – containing, for example, a clear commitment on the question
of family unity.62 But the component of core context with the most far-
reaching force is clearly the Convention’s Preamble. The Preamble is
a critical source of contextual guidance since, as Judge Weeramantry has
noted, it
is a principal and natural source from which indications can be gathered of
a treaty’s objects and purposes even though the preamble does not contain
substantive provisions. Article 31(2) of the Vienna Convention sets this
out specifically . . . [T]his Court . . . has made substantial use of it for
interpretational purposes.63
In the case of the Refugee Convention, the Supreme Court of the United
Kingdom has adopted the view that there is a duty to give “the [Refugee]
Convention . . . a generous and purposive interpretation, bearing in mind its
humanitarian objects and the broad aims reflected in its preamble.”64 Indeed,
59
See Chapter 2.4.
60
Technical and colloquial understandings can unfortunately sometimes commingle in the
jurisprudence. For example, a judge of the Full Federal Court of Australia invoked
“context” in the sense both of the Convention’s preamble and cognate human rights duties
as well as “the context of the likely circumstances of refugees” to argue against an
interpretation of cessation of refugee status that would interrupt the stability of the lives
of refugees: QAAH of 2004 v. Minister for Immigration and Multicultural and Indigenous
Affairs, [2005] FCAFC 136 (Aus. FFC, July 27, 2005), per Madgwick J. (dissenting), at [106].
61
“Final Act of the United Nations Conference of Plenipotentiaries on the Status of Refugees
and Stateless Persons,” 189 UNTS 37.
62
See Chapter 4.6.
63
Arbitral Award of 31 July 1989 (Guinea–Bissau v. Senegal), [1991] ICJ Rep 53, at 142
(Dissenting Opinion [on another point] of Judge Weeramantry). See also reliance by the
International Court of Justice on the preamble to a treaty for interpretive purposes in Rights
of Nationals of the United States in Morocco, [1952] ICJ Rep 176, at 196; and Asylum Case
(Colombia/Peru), [1950] ICJ Rep 266, at 282.
64
R (ST, Eritrea) v. Secretary of State for the Home Department, [2012] UKSC 12 (UK SC,
Mar. 21, 2012), at [30]. See also AD (Palestine), Dec. No. 800693–695 (NZ IPT, Dec. 23,
2015), at [134]–[137]; and AC (Syria), Dec. No. 800035 (NZ IPT, May 27, 2011), at [64]–
[66]. Context is, of course, only one factor in the interactive interpretive process. In
European Roma Rights Centre v. Immigration Officer at Prague Airport, [2002] EWCA
1989 (Eng. QBD, Oct. 8, 2002), portions of the Preamble to the Convention were invoked to
contest the legality of efforts to prevent would-be refugees from departing their own
country. On the facts of the case, however, the court reasonably held that the Refugee
Convention’s general commitment to respect for human rights could not compel an
interpretation at odds with the ordinary meaning of the treaty, which plainly grants rights
only to a person who is “outside the country of his nationality”: ibid. at [42]–[43].

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 2.2 con t e xt 141

the first two operative paragraphs of the Preamble to the treaty unequivocally
establish the human rights purposes of the Refugee Convention:
The High Contracting Parties,
Considering that the Charter of the United Nations and the Universal
Declaration of Human Rights . . . have affirmed the principle that human
beings shall enjoy fundamental rights and freedoms without
discrimination,
Considering that the United Nations has, on various occasions, mani-
fested its profound concern for refugees and endeavoured to assure refu-
gees the widest possible exercise of these fundamental rights and freedoms,
...
Have agreed as follows.65
The Preamble to the Refugee Protocol similarly affirms the fundamental human
rights purpose of the regime, and expressly stipulates the intention of state
parties to ensure that “equal status should be enjoyed by all refugees,” including
those who became refugees as the result of “new refugee situations [that] have
arisen since the [1951] Convention was adopted.”66 Taken together, these core
elements of context require a reading of specific provisions that is consistent with
the overarching commitment to enabling refugees to exercise fundamental
rights and freedoms, and specifically require that the Eurocentric tenor of the
1951 Convention be read down in the interests of ensuring that refugee protec-
tion is substantively meaningful to refugees for all time, and in all places.
Beyond the core elements of context, interpreters must also take account of
both subsequent interpretive agreements between the parties and of subse-
quent practice that establishes the agreement of the parties on how the treaty
should be interpreted.67 While these provisions require formal or de facto
65
Refugee Convention, at Preamble, [1], [2], [3], [8].
66
Refugee Protocol, at Preamble, [3], [4].
67
Vienna Convention, Art. 31(3)(a) and (b). In general, “[t]he jurisprudence of international
courts and other adjudicative bodies shows a certain reluctance to clearly distinguish
between subsequent agreements [under Art. 31(3)(a)] and subsequent practice [under
Art. 31(3)(b)]”: International Law Commission, “First report on subsequent agreements
and subsequent practice in relation to treaty interpretation,” UN Doc. A/CN.4/660 (Mar.
19, 2013), at [71]. This may in truth be of little practical import since “[t]he distinction
between any ‘subsequent agreement’ . . . and ‘subsequent practice which establishes the
agreement of the parties’ . . . does not denote a difference concerning their authentic
character”: International Law Commission, “Draft conclusions on subsequent agreements
and subsequent practice in relation to the interpretation of treaties, with commentaries,”
UN Doc. A/73/10 (Aug. 8, 2018), at Conclusion 3, Commentary [10]. The regional refugee
regimes implemented in Africa and Europe are not “subsequent agreements” for purposes
of Art. 31(3)(a). As the International Law Commission has observed, “[t]reaties with
a broader membership are sometimes implemented by subsequent bilateral or regional
agreements . . . Such bilateral treaties are not, as such, subsequent agreements in the sense
of article 31(3)(a) of the Vienna Convention since they are only concluded between
a limited number of the parties to the multilateral treaty. However, if taken together and

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 142 2 in t e r a c t i v e i n te r p r et a t i o n o f r e f u g e e ri g h ts

agreement among “the parties,” the International Law Commission did not
accept a proposal to require the consent of all parties to a treaty as a condition
for their application.68 On the other hand, this flexibility must be applied with
caution given international law’s commitment that no grouping of states can
impose obligations on a third state without the latter’s express or implied
consent thereto.69 As Judge Spender observed,
In the case of multilateral treaties, the admissibility and value as
evidence of subsequent conduct of one or more parties thereto
encounter particular difficulties. If all the parties to a multilateral
treaty where the parties are fixed and constant pursue a course of
conduct in their attitude to the text of the treaty, and that course of
conduct leads to an inference, and one inference only, as to their
common intention and understanding at the time they entered into
the treaty as to the meaning of the text, the probative value of their
conduct . . . is manifest. If, however, only one or some but not all of
them by subsequent conduct interpret the text in a certain manner,
that conduct stands upon the same footing as the unilateral conduct
of one party to a bilateral treaty. The conduct of such one or more
could not of itself have any probative value or provide a criterion for
judicial interpretation [emphasis added].70
The International Court of Justice has thus traditionally been disinclined
to promote ease of reliance on Art. 31(3)(b) at the expense of overriding
the views of state parties to a treaty. At the very least, there must be

sufficiently consistent and widespread, they may establish an agreement between all the
parties regarding the meaning and scope of a respective multilateral treaty provision”:
International Law Commission, “First report on subsequent agreements and subsequent
practice in relation to treaty interpretation,” UN Doc. A/CN.4/660 (Mar. 19, 2013), at [80].
68
[1966] 2 Yearbook of the International Law Commission 222. The rejection of this
requirement may be read, however, as a rejection of the requirement for the express
(rather than simply passive) assent of all parties to the interpretive practice in question.
The International Law Commission has accordingly suggested that “[s]ilence on the part
of one or more parties can constitute acceptance of the subsequent practice when the
circumstances call for some reaction”: International Law Commission, “Subsequent
agreements and subsequent practice in relation to the interpretation of treaties: Text of
the draft conclusions provisionally adopted by the Drafting Committee on first reading,”
UN Doc. A/CN.4/L.874 (June 6, 2016), at Draft Conclusion 10(2). This view aligns with
the opinion of Aust who concludes that “[i]t is not necessary to show that each party has
engaged in a practice, only that all have accepted it, albeit tacitly”: Aust, Modern Treaty
Law, at 216.
69
See Vienna Convention, at Arts. 34 (“A treaty does not create either obligations or rights for
a third State without its consent”) and 35 (“An obligation arises for a third State from
a provision of a treaty if the parties to the treaty intend the provision to be the means of
establishing the obligation and the third State expressly accepts that obligation in writing”).
70
Certain Expenses of the United Nations, [1962] ICJ Rep 151, at 191 (Separate Opinion of
Judge Spender).

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 2.2 co nt e xt 143

evidence of unambiguous acquiescence in the allegedly interpretive

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

71
In the Asylum Case, for example, Judge Read indicated that the practice of all parties to
a treaty should be taken into account (though in the case at hand lack of time, space, and
information compelled him to review only the practice of the disputing states): Asylum
Case (Colombia/Peru), [1950] ICJ Rep 266. Judge van Wyk observed that “[t]he weight to
be attached to such conduct must necessarily depend on the circumstance of each case.
Where for a relatively lengthy period after the execution of any agreement, all the parties
by conduct accept the position that the agreement does not embody a particular obliga-
tion, then such conduct must bear considerable weight in a determination whether that
obligation exists or not [emphasis added]”: South West Africa Case (Ethiopia v. South
Africa; Liberia v. South Africa), Second Phase, [1966] ICJ Rep 6, at 135–136 (Separate
Opinion of Judge van Wyk). And in the Namibia Case, Judge Spender reiterated his view
that a treaty “cannot be altered by the will of the majority of the member states, no matter
how often that will is expressed or asserted against a protesting minority and no matter by
how large the majority – or how small the minority”: Legal Consequences for States of the
Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding
Security Council Resolution 276 (1970), [1971] ICJ Rep 16, at 31. This view was affirmed in
the case by Judge Bustamante (ibid. at 291), and by Judge Winiarski in his dissenting
opinion (ibid. at 234).
72
As the International Law Commission has explained in relation to human rights
treaty bodies, “[w]hereas a pronouncement by a human rights expert body can, in
principle, give rise to a subsequent agreement or a subsequent practice by the parties
under article 31, paragraph (3)(a) and (b), this result is not easily achieved in
practice. Most human rights treaties at the universal level have many parties. It will
often be difficult to establish that all parties have accepted, explicitly or implicitly,
that a particular pronouncement of an expert body expresses a particular interpret-
ation of the treaty”: International Law Commission, “Draft conclusions on subsequent
agreements and subsequent practice in relation to the interpretation of treaties, with
commentaries,” UN Doc. A/73/10 (Aug. 8, 2018), at Conclusion 13, Commentary
[12]. Indeed, the ILC earlier observed that “[i]n fact, expert bodies under human
rights treaties themselves have rarely attempted to specifically identify the practice of
the parties for the purpose of interpreting a particular treaty provision”: International
Law Commission, “Fourth report on subsequent agreements and subsequent practice
in relation to treaty interpretation,” UN Doc. A/CN.4/694 (Mar. 7, 2016), at [44].
73
“A decision adopted within the framework of a Conference of States Parties embodies
a subsequent agreement or subsequent practice under article 31, paragraph 3, in so far as it
expresses agreement in substance between the parties regarding the interpretation of
a treaty, regardless of the form and the procedure by which the decision was adopted,
including by adoption by consensus”: International Law Commission, “Draft conclusions
on subsequent agreements and subsequent practice in relation to the interpretation of
treaties, with commentaries,” UN Doc. A/73/10 (Aug. 8, 2018), at Conclusion 11(3). The
Commission does not take a clear position on whether such decisions are better viewed as
an “agreement” under Art. 31(3)(a) or as “practice” under Art. 31(3)(b).

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 144 2 int erac tiv e interp ret at ion of r e fug ee r ights

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

74
Such processes are described in detail in International Law Commission, “Second report on
subsequent agreements and subsequent practice in relation to treaty interpretation,” UN
Doc. A/CN.4/671 (Mar. 26, 2014), at [76] ff.
75
Importantly, “[i]t . . . cannot simply be said that because the treaty does not accord the
Conference of the States Parties a competence to take legally binding decisions, their
decisions are necessarily legally irrelevant and constitute only political commitments”:
International Law Commission, “Draft conclusions on subsequent agreements and subse-
quent practice in relation to the interpretation of treaties, with commentaries,” UN Doc. A/
73/10 (Aug. 8, 2018), at Conclusion 11, Commentary [26].
76
“Ministerial Communiqué,” UN Doc. HCR/MINCOMMS/2011/16, Dec. 8, 2011, at [2].
77
“Declaration of States Parties to the 1951 Convention and/or its 1967 Protocol relating to
the Status of Refugees,” UN Doc. HCR/MMSP/2001/09, Dec. 13, 2001, incorporated in
Executive Committee of the High Commissioner’s Program, “Agenda for Protection,” UN
Doc. EC/52/SC/CRP.9/Rev.1, June 26, 2002. The Declaration was welcomed by the UN
General Assembly in UNGA Res. A/RES/57/187, Dec. 18, 2001, at [4]. The December 2001
Ministerial Meeting has particular significance in that it was the first occasion on which
a meeting at the ministerial level of all state parties to the Refugee Convention and Protocol
was convened.
78
See text at note 66.
79
In the view of the International Law Commission, “[t]he respective character of a decision
of a Conference of State Parties . . . must always be carefully identified. For this purpose, the
specificity and clarity of the terms chosen in the light of the Conference of State Parties’
decision as a whole, its object and purpose, and the way in which it is applied, need to be
taken into account”: International Law Commission, “Draft conclusions on subsequent
agreements and subsequent practice in relation to the interpretation of treaties, with
commentaries,” UN Doc. A/73/10 (Aug. 8, 2018), at Conclusion 11, Commentary [23].
In the case of the two conferences of state parties to the Refugee Convention and Protocol,
the specificity and clarity of the commitments made on matters directly regulated by those
treaties is unmistakable.

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 2.2 co nt e xt 145

A more robust means of generating interpretive consensus is the process of

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

80
The Executive Committee was established by ECOSOC Res. 672 (XXV), and commenced
operation on January 1, 1959. It comprises ninety-eight state members and meets annually
to inter alia advise the High Commissioner on the exercise of his protection
responsibilities.
81
See UNHCR, “Conclusions on International Protection Adopted by the Executive
Committee of the UNHCR Programme, 1975–2017,” UN Doc. HCR/IP/3/Eng/REV.
2017. UNHCR has also issued “A Thematic Compilation of Executive Committee
Conclusions” (2014), which organizes relevant Executive Committee Conclusions under
seventy-three major chapters. No Conclusions on International Protection were issued in
2018 or 2019, with a decision on a future workplan delayed until 2020: UNHCR Executive
Committee, “Notes of the Rapporteur, 18–20 June 2019,” www.unhcr.org/5d0b442c7.pdf,
accessed Feb. 1, 2020.
82
The only requirement is that state members be chosen “on the widest possible geographical
basis from those states with a demonstrated interest in, and devotion to, the solution of the
refugee problem”: UNGA Res. 1166 (XII).
83
In such circumstances, there is a reasonable expectation that state parties will engage the
draft conclusions, failing which they may be argued to have acquiesced in them: see notes
71–72.
84
“Silence on the part of one or more parties may constitute acceptance of the subsequent
practice when the circumstances call for some reaction”: International Law Commission,
“Draft conclusions on subsequent agreements and subsequent practice in relation to the
interpretation of treaties, with commentaries,” UN Doc. A/73/10 (Aug. 8, 2018), at
Conclusion 10(2). The ILC has more specifically noted that “[t]he ‘circumstances’ that
‘will call for some reaction’ include the particular setting in which the States parties interact
with each other in respect of the treaty”: ibid., at Conclusion 10, Commentary [14]. Aust
cites as an example the unquestioned practice of treating non-objection by a permanent
member state of the UN Security Council as a “concurring” vote for purposes of Art. 27(3)
of the UN Charter: Aust, Modern Treaty Law, at 216.
85
See generally Chapter 1.5.2.

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In addition to the interpretive conclusions agreed by states, it is sometimes

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

86
For example, the Executive Committee “[r]equested the Office to consider the possibility of
issuing – for the guidance of Governments – a handbook relating to procedures and criteria
for determining refugee status and circulating – with due regard to the confidential nature
of individual requests and the particular situations involved – significant decisions on the
determination of refugee status”: UNHCR EXCOM Conclusion No. 8 (XVIII), at [(g)].
While Aust discusses the UNHCR’s Handbook on Procedures and Criteria for Determining
Refugee Status under the rubric of Vienna Convention Art. 31(2)(a) – an agreement
between all the parties in connection with the conclusion of the treaty (see Aust, Modern
Treaty Law, at 212) – the better conclusion (given that the Handbook appeared in 1979) is
that its interpretive relevance follows instead from Art. 31(3) as evincing subsequent
agreement among the parties about how the treaty should be interpreted. Indeed,
a decision of the English Court of Appeal considered the Handbook to be evidence of
“international practice within article 31(3)(b) of the Vienna Convention”: R v. Secretary of
State for the Home Department, ex parte Adan and Aitseguer, [1999] 3 WLR 1274 (Eng. CA,
July 23, 1999, appeal to the House of Lords dismissed without comment on this issue).
87
This conclusion is shared by the International Law Commission which noted that “State
officials who are responsible for interpreting and applying the Convention relating to the
Status of Refugees resort to the Office of the United Nations High Commissioner for
Refugees (UNHCR) Handbook on Procedures and Criteria for Determining Refugee Status
under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees as
a reference work for State practice. Although the UNHCR Handbook is sometimes loosely
referred to as an expression of State practice, this view has correctly been rejected by the
Federal Court of Australia in Semunigus v. the Minister for Immigration and Multicultural
Affairs, [1999] FCA 422 (Apr. 14, 1999), at [5]–[13]”: International Law Commission,
“First report on subsequent agreements and subsequent practice in relation to treaty
interpretation,” UN Doc. A/CN.4/660 (Mar. 19, 2013), at [137].
88
Vienna Convention, Art. 31(3)(c).

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 2. 2 c on te xt 147

on Human Rights,89 and because there is such frequent substantive overlap

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

89
More than 98 percent of state parties to the Refugee Convention are also parties to both of
the UN Covenants on Human Rights: http://indicators.ohchr.org, accessed Feb. 1, 2020. Of
the remainder, Botswana, Mozambique, Nauru, and Samoa have signed or ratified the Civil
and Political Covenant, but not the Economic and Social Covenant. Only the Holy See,
St. Kitts and Nevis, and Tuvalu are parties to the Refugee Convention, but to neither of the
Covenants.
90
See generally Chapters 4–7. While there is some support for the view that Vienna
Convention Art. 31(3)(c) allows the broad-ranging importation of international law
norms, the better view is that the norms to be considered in tandem with context must
be substantively relevant: Case Concerning Oil Platforms (Islamic Republic of Iran v. United
States of America), Merits, [2003] ICJ Rep 161, per President Higgins at [41]–[45].
91
For example, in considering the relevance of broader norms of environmental law to the
anti-whaling treaty, Judge Cançado Trindade observed that “[w]ith the growth in recent
decades of international instruments related to conservation, not a single one of them is
approached in isolation from the others; not surprisingly, the co-existence of international
treaties of this kind has called for a systemic outlook, which has been pursued in recent
years”: Whaling in the Antarctic (Australia v. Japan, New Zealand intervening), [2014] ICJ
Rep 226, at [25] (Separate Opinion of Judge Cançado Trindade).
92
R. Higgins, “Some Observations on the Inter-temporal Rule in International Law,” in
J. Makarczyk ed., Theory of International Law at the Threshold of the 21st Century (1996)
173. Sinclair explains that the paragraph as originally drafted by the International Law
Commission initially referred only to “rules of international law in force at the time of [the
treaty’s] conclusion [emphasis added].” He observes that the italicized words “were
intended to reflect the general principle that a juridical fact must be appreciated in the
light of the law contemporary with it. During the course of second reading in the
Commission, some members suggested that the text as it then stood failed to deal with
the problem of the effect of an evolution of the law on the interpretation of legal terms in
a treaty and was therefore inadequate. For this reason, the Commission concluded that it
should omit a temporal element and transfer this element of interpretation to paragraph 3
as being an element extrinsic both to the text and to the ‘context’ as defined in paragraph 2”:
Sinclair, Vienna Convention, at 138–139.
93
The case is strongest for reference to the Convention on the Rights of the Child, the
Convention on the Elimination of Discrimination Against Women, and the Convention on
the Elimination of Racial Discrimination, with more than 95 percent of state parties to the
Refugee Convention or Protocol also being parties to those treaties: http://indicators
.ohchr.org, accessed Feb. 1, 2020.

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 148 2 int erac ti ve interp r et at ion of r e fugee r ights

between the parties evinced by the protection conclusions of the Executive

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

2.3 Object and Purpose, Conceived as Effectiveness

In contrast to the fairly straightforward purport of the duty to consider
a treaty’s text and Art. 31’s specific definition of a treaty’s context and related
matters, there is no express guidance in the Vienna Convention on how to
apply the third part of the general rule of interpretation, respect for the treaty’s
“object and purpose.” The position advanced here is that there are two steps in
discerning a treaty’s object and purpose.
The first is to come to an understanding of the historical intentions of the
drafters of the treaty – an inquiry at times unnecessarily complicated by
misguided anxiety about reliance on the preparatory work of the treaty in
order to understand a treaty’s historical object and purpose.94 The second,
recognizing that a treaty is to be understood as presently speaking rather than
forever defined by the circumstances in which it was conceived, is to update
and renew the historical “object and purpose” – a process that aligns with the
more general duty to interpret a treaty in a way that ensures its effectiveness.
Taken together, this two-step approach means that an interpretation made “in
the light of [the treaty’s] object and purpose”95 should take account of the
historical intentions of its drafters, yet temper that analysis to ensure the
treaty’s effectiveness within its modern social and legal setting.
The historical record of the treaty’s drafting is critical to understanding its
object and purpose.96 So long as care is taken to distinguish between
94
A detailed analysis of this issue concludes that “[f]ar from adopting a doctrinally
restrictive view of drafting history, the Vienna Conference sought to secure its place
as a regular, central, and indeed crucial component of treaty interpretation . . . The
[common] view that Article 32 relegated travaux to an inferior position is simply
wrong. The VCLT drafters . . . meant for treaty interpreters to assess drafting history
for what it is worth in each case: no more, but certainly no less”: Mortenson,
“Travaux of Travaux,” at 781.
95
Vienna Convention, Art. 31(1).
96
The travaux préparatoires of the Refugee Convention are helpfully collected in
a three-volume looseleaf set: A. Takkenberg and C. Tahbaz eds., The Collected
Travaux Préparatoires of the 1951 Geneva Convention relating to the Status of

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

Refugees (1989). The main contributions to the Convention’s development were made
by the Ad Hoc Committee on Statelessness and Related Problems, which met at Lake
Success, New York, during January–February 1950; by a reconvened Ad Hoc
Committee on Refugees and Stateless Persons, which met again at Lake Success,
New York, during August 1950; and by a Conference of Plenipotentiaries, which
met in Geneva during July 1951. The analysis here draws heavily on discussions in
these three fora.
97
In general terms, the travaux préparatoires comprise “the preparatory work of negotiation,
discussion, and drafting that produces a final treaty text”: Mortenson, “Travaux of
Travaux,” at 780.
98
“The value of the material will depend on several factors, the most important being
authenticity, completeness and availability. The summary record of a conference pre-
pared by an independent and skilled secretariat, such as that of the United Nations, will
carry more weight than an unagreed record produced by a host state or a participating
state”: Aust, Modern Treaty Law, at 218. But see e.g. Reuter, Law of Treaties, at 97–98:
“[R]ecourse to preparatory work means treading uncertain ground: its content is not
precisely defined nor rigorously certified, and it reveals the shortcomings or potential
blunders of the negotiators as well as their reluctance to confront true difficulties.
Moreover, preparatory work is not always published, and even when it is there could
be some misgivings about invoking it against States, even more numerous on account of
the modern methods of accession, [involving states] which did not take part in the
negotiations.” In some cases, however – the Refugee Convention being one – the
preparatory work is carefully defined, approved by states, and published. Moreover,
evidence of “shortcomings and blunders,” so long as it is recognized as such, may actually
help to elucidate the meaning of provisions ultimately adopted. In these circumstances,
resort to the travaux by states which choose to accede to a treaty without having
participated in its negotiation enables them more clearly to understand the duties they
are contemplating undertaking than would, for example, mere reliance on ambiguous
text. Thus, the International Law Commission has taken the view that “[a] State acceding
to a treaty in the drafting of which it did not participate is perfectly entitled to request to
see the travaux préparatoires, if it wishes, before acceding”: International Law
Commission, “Report on the Second Part of its Seventeenth Session and on its
Eighteenth Session,” UN Doc. A/6309.Rev. 1 (1966), at 54.
99
See e.g. the unduly narrow approach of the majority of the Supreme Court of Canada in
Luis Alberto Hernandez Febles v. Canada, [2014] SCC 68 (Can. SC, Oct. 30, 2014), at
[38]–[39]. The failure of the International Court of Justice to change its own approach in
the early years after adoption of the Vienna Convention is no doubt partly to blame.
“Despite the drafters’ express rejection of PCIJ and ICJ precedent as a model for their
treaty’s approach to travaux, the ICJ continued for decades its pre-VCLT practice of
‘privileging textual interpretation’ in the Vattellian sense”: Mortenson, “Travaux of
Travaux,” at 822.

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[I]t is not necessary – as some utterances of the two international courts

might suggest – to apologize for resorting to travaux préparatoires as an
aid to interpretation. In many instances the historical record is valuable
evidence to be taken into account in interpreting a treaty. It is tradition,
rather than law or logic, which has at times led to judicial statements that
the evidence is used merely to confirm an interpretation which is supposed
to have already been derived from the bare words of the text or even of the
text in its context.100
The hesitation with which the travaux are sometimes approached largely
derives from a technical point: namely, that the Vienna Convention treats the
preparatory work of a treaty as a “supplementary means of interpretation”
listed in Art. 32, rather than as part of the “general rule of interpretation” stated
in Art. 31.101 Yet as Mortenson makes clear, the drafters of the Vienna
Convention viewed Arts. 31 and 32 as “intertwined halves of a single, unitary
whole.”102 Indeed, the term “supplementary” means of interpretation was
actually selected in preference to the term “subsidiary” used in the Statute of
the International Court of Justice precisely to avoid any implication that the
travaux were not of real, often critical, interpretive value.103 As Waldock
affirmed, “there had certainly been no intention of discouraging automatic
recourse to preparatory works for the general understanding of a treaty
[emphasis added].”104
Why then the division into Arts. 31 and 32? The answer is actually surpris-
ingly simple: Art. 31 states the “rule” of interpretation, whereas Art. 32 defines
a privileged “means” of applying that rule – exactly what the titles of the two
100
South West Africa Case (Ethiopia v. South Africa; Liberia v. South Africa), Second Phase,
[1966] ICJ Rep 6, at 352 (Dissenting Opinion of Judge Jessup).
101
“Recourse may be had to supplementary means of interpretation, including the prepara-
tory work of the treaty and the circumstances of its conclusion, in order to confirm the
meaning resulting from the application of article 31, or to determine the meaning when
the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or
(b) leads to a result which is manifestly absurd or unreasonable”: Vienna Convention, at
Art. 32.
102
Mortenson, “Travaux of Travaux,” at 802. The International Law Commission has
recently taken essentially the same view, determining that “[t]he interpretation of
a treaty consists of a single combined operation, which places appropriate emphasis on
the various means of interpretation indicated, respectively, in articles 31 and 32”:
International Law Commission, “Draft conclusions on subsequent agreements and sub-
sequent practice in relation to the interpretation of treaties, with commentaries,” UN Doc.
A/73/10 (Aug. 8, 2018), at Conclusion 2(5).
103
Mortenson, “Travaux of Travaux,” at 803, n. 126. Indeed, the title originally proposed for
Art. 32 – “further” means of interpretation – was changed to “supplementary” only for
ease of translation into Spanish and French, with the drafters emphasizing the inter-
changeability of the two terms: ibid.
104
“United Nations Conference on the Law of Treaties, Official Records of the First Session,”
UN Doc. CONF.39/11, at 184 (Thirty-Third Meeting), cited in Lennard, “Navigating by
the Stars,” at 24.

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

105
Specifically, the drafters were determined to make clear their rejection of the policy-
oriented approach to interpretation advocated by Yale Law School’s Myres McDougall:
Mortenson, “Travaux of Travaux,” at 788, 802. Sinclair explains that “[t]he distinction
between the general rule of interpretation and the supplementary means of interpretation
is intended . . . to ensure that the supplementary means do not constitute an alternative,
autonomous method of interpretation divorced from the general rule”: Sinclair, Vienna
Convention, at 116.
106
While Art. 32 allows consideration of supplementary means of interpretation in general,
only the “preparatory work of the treaty and the circumstances of its conclusion” are
expressly mentioned as legitimate points of reference.
107
Vienna Convention, at Art. 32.
108
Ibid. at Art. 32(a). For example, the House of Lords looked to the drafting history of Art.
33 of the Refugee Convention, noting that the travaux are “a legitimate guide to interpret-
ation if the effect of a provision is in doubt and the travaux préparatoires yield a clear and
authoritative answer”: R v. Immigration Officer at Prague Airport et al., ex parte European
Roma Rights Centre et al., [2004] UKHL 55 (UK HL, Dec. 9, 2004), at [17].
109
Northern Cameroons Case, [1963] ICJ Rep 15, at 88 (Separate Opinion of Judge Spender).
110
Mortenson, “Travaux of Travaux,” at 786.
111
Sinclair suggested that “[o]ne can, almost by definition, assume that a dispute about the
interpretation of a treaty provision which reaches the stage of international adjudication
will have arisen because the text is ambiguous or obscure”: Sinclair, Vienna Convention,
at 142.

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which recourse to the preparatory work and circumstances of the Treaty’s

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

112
Elettronica Sicula (USA v. Italy), [1989] ICJ Rep 15, at 97 (Dissenting Opinion of Judge
Schwebel). See also Judgment No. 273 of the UN Administrative Tribunal, [1982] ICJ Rep
325, at 463 (Dissenting Opinion of Judge Schwebel): “The Court should do exactly as it has
done in prior cases in which the meaning of a treaty or legislative text has been at issue:
examine the preparatory work which gave rise to it. If it is objected that resort to this
supplementary means of interpretation is justified only where the text is not clear, it is
submitted that the text’s lack of clarity is sufficiently shown by the differences about its
interpretation which are demonstrated as between the Court’s opinion and dissenting
opinions in this case.” Judge Schwebel developed this position in his scholarship, observ-
ing that “the terms of a treaty which come before the Court for interpretation, if not
usually obscure, are often ‘ambiguous.’ If this were not so, that is, if they did not lend
themselves to argument attaching different meaning to their terms, they would not likely
be legally contested at all. Moreover, it is not infrequent that the ‘ordinary meaning’ of the
terms of a treaty, even if found unambiguously such, leads to a result which, if not
‘manifestly absurd’ is ‘unreasonable’ – at any rate, in the view of one of the parties to
the dispute”: Schwebel, “Preparatory Work,” at 543. To similar effect, the European Court
of Human Rights determined in James v. United Kingdom, (1986) 8 EHRR 123 (ECtHR,
Feb. 21, 1986), at [64], that “confronted with a text whose interpretation has given rise to
such disagreement, the court considers it proper to have recourse to the travaux
préparatoires as a supplementary means of interpretation.”
113
A broad range of travaux has been consulted by the International Court of Justice,
including “negotiation records, minutes of commission proceedings, committee debates
preceding the adoption of a convention, preliminary drafts of provisions, diplomatic
exchanges, and government memoranda”: M. Ris, “Treaty Interpretation and ICJ
Recourse to Travaux Préparatoires: Towards a Proposed Amendment of Articles 31 and
32 of the Vienna Convention on the Law of Treaties,” (1991) 14(1) Boston College
International and Comparative Law Review 111, at 133.
114
See e.g. Aegean Sea Continental Shelf Case (Greece v. Turkey), [1978] ICJ Rep 3, at 13–14;
Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and
Admissibility, [1988] ICJ Rep 69, at 90; Application of the International Convention on
the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation),
Preliminary Objection, [2011] ICJ Rep 70, at [142]; Maritime Dispute (Peru v. Chile),
[2014] ICJ Rep 3, at [65]–[66]; Alleged Violations of Sovereign Rights and Maritime Spaces
in the Caribbean Sea (Nicaragua v. Colombia), [2016] ICJ Rep 3, at [47].
115
See e.g. Reservations to the Convention on the Prevention and Punishment of the Crime of
Genocide, [1951] ICJ Rep 15 (interpreting the Genocide Convention to determine the
permissibility of reservations); Dispute Regarding Navigational and Related Rights (Costa
Rica v. Nicaragua), [2009] ICJ Rep 213.
116
See e.g. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States), Jurisdiction, [1984] ICJ Rep 392, at 406 (interpreting the Statute of the
International Court of Justice to determine the validity of a declaration of jurisdiction
by the Permanent Court of International Justice).

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been an effort to characterize reliance on the travaux as purely confirmatory,

Rosenne suggests that this may be more a matter of form than of substance:
[T]hat case law would be much more convincing if from the outset the
court or tribunal had refused to admit consideration of travaux
préparatoires until it had first been established whether or not the text
was clear, but in fact . . . on all these occasions the travaux préparatoires
had been fully and extensively placed before the court or the arbitral
tribunal by one or other of the parties, if not by both. In the circumstances,
to state that the travaux préparatoires had been used only to confirm an
opinion already arrived at on the basis of the text of the treaty was coming
close to a legal fiction.117
Most leading regional118 and national119 courts have similarly understood
the unique value of the travaux, often drawing on drafting records to assist

117
S. Rosenne, [1964] 1 Yearbook of the International Law Commission, at 292, [17]. Waldock
has similarly opined that “the reference to confirmation and, a fortiori, verification tended
to undermine the text of a treaty in the sense that there was an express authorisation to
interpret it in the light of something else; nevertheless, that was what happened in
practice”: [1964] 1 Yearbook of the International Law Commission, at 283, [65]. Indeed,
it has even been suggested that the duty of good faith interpretation may at times require
departure from an ordinary meaning thought to be “clear” in order to do justice to the
drafters’ intentions as disclosed by reference to the travaux. “If, as Article 31 itself
prescribes, a treaty is to be interpreted ‘in good faith,’ surely the provision of Article 32
regarding recourse to preparatory work must be understood to be meaningful rather than
meaningless. If preparatory work may be invoked only when it confirms the ordinary
meaning otherwise deduced, the provision for its application in Article 32 approaches the
meaningless. But if preparatory work may be invoked to correct the ordinary meaning
otherwise deduced (if not to inform and influence the interpretation of the treaty from the
outset), it and the provisions of Article 32 are accorded a meaningful place”: Schwebel,
“Preparatory Work,” at 546. Aust observes in this regard that “[t]his is no doubt how
things work in practice; for example, the parties to a dispute will always refer the tribunal
to the travaux, and the tribunal will inevitably consider them along with all the other
material put before it. [Judge Schwebel’s] suggestion is therefore a useful addition to the
endless debate on the principles of interpretation”: Aust, Modern Treaty Law, at 218.
118
“The European Court of Human Rights and the European Court of Justice have made use
of travaux préparatoires for a variety of purposes and, on the evidence considered so far, it
might be thought that they should be regarded as a major component in the courts’
decisions”: J. Merrills, The Development of International Law by the European Court of
Human Rights (1993) (Merrills, European Court), at 92.
119
See e.g. Fothergill v. Monarch Airlines, [1981] AC 251 (UK HL, July 10, 1980), per Diplock
L.J. at 283, in which the view is expressed that “an English court might well be under
a constitutional obligation” to consider the travaux of a treaty where the text is ambiguous
or obscure. American courts also make extensive use of the travaux in the construction of
treaties: see e.g. Volkswagenwerk Aktiengesellschaft v. Schlunk, (1988) 486 US 694 (US SC,
June 15, 1988); Eastern Airlines v. Floyd, (1991) 499 US 530 (US SC, Apr. 17, 1991); and, in
the context of refugee law, Sale, Acting Commissioner, Immigration and Naturalization
Service, et al., Petitioners v. Haitian Centers Council, Inc., et al., 509 US 155 (US SC, Jan. 12,
1993). A more recent powerful dissenting opinion in the Supreme Court of Canada

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 154 2 i nt e ra ct i v e i n te r pr e tat i o n o f re f u g e e ri g h t s

them in the process of treaty interpretation. Indeed, the House of Lords made
clear that a focus on words alone – without a serious effort to come to grips
with the historical goals understood to underpin the Refugee Convention – is
unlikely to yield a sound understanding of the treaty’s language:
Inevitably the final text will have been the product of a long period of
negotiation and compromise . . . It follows that one is more likely to arrive
at the true construction of Article 1(A)(2) by seeking a meaning which
makes sense in the light of the Convention as a whole, and the purposes
which the framers of the Convention were seeking to achieve, rather than
by concentrating exclusively on the language. A broad approach is what is
needed, rather than a narrow linguistic approach.120
This observation neatly brings analysis of the role of a treaty’s preparatory
work full circle. Because the goal of interpretation is to discern the “true
construction” of a treaty, the text agreed is clearly the starting point for
analysis. But a true construction will only be possible when account is taken
not only of words, but also of the treaty’s object and purpose. A critical part of
that interactive interpretive process – one which makes it “more likely” that
a treaty will be accurately construed – is the careful consideration of the
deliberations of the convention’s drafters, which affords the interpreter vital
evidence of the true meaning of a treaty’s text construed purposively and in
context.121

regarding exclusion from refugee status similarly determined that “the wildly divergent
interpretations of Article 1(F)(b) adopted by courts in other jurisdictions and the uncer-
tainty created by the territorial limits mandate recourse to the interpretive assistance of the
preparatory work”: Luis Alberto Hernandez Febles v. Canada, [2014] SCC 68 (Can. SC,
Oct. 30, 2014), at [107]. As Sinclair concludes, “there is now a growing tendency, even in
the municipal courts of States which do not permit recourse to travaux préparatoires in
construing statutes or other domestic legislative instruments, to apply this supplementary
means of interpretation in determining the meaning of those statutes which give the force
of domestic law to the provisions of international treaties”: Sinclair, Vienna Convention,
at 144.
120
R v. Secretary of State for the Home Department, ex parte Adan, [1999] 1 AC 293 (UK HL,
Apr. 2, 1998). See also INS v. Cardoza Fonseca, (1987) 480 US 421 (US SC, Mar. 9, 1987), at
437–438, in which the United States Supreme Court took account of the travaux
préparatoires in its analysis of the meaning of “well-founded fear” in the Convention
refugee definition.
121
This understanding appears to be in line with the approach of the International Court of
Justice in Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory, [2004] ICJ Rep 136, decided July 9, 2004. Immediately after referring to the duty
to interpret a treaty in good faith and in accordance with the ordinary meaning to be given
to its terms in their context and in the light of its object and purpose, the Court cited the
full text of Art. 32 of the Vienna Convention: ibid. at [94]. It then relied extensively on the
travaux to determine that Art. 2 of the Fourth Geneva Convention is applicable even
during an occupation not involving armed conflict on the grounds that “[t]his interpret-
ation reflects the intention of the drafters of the Fourth Geneva Convention to protect

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 2.3 o bject a nd purpose, conceived a s e ffectiveness 155

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

civilians who find themselves, in whatever way, in the hands of the occupying Power . . .
That interpretation is confirmed by the Convention’s travaux préparatoires”: ibid. at [95].
122
“As important treaties reach a certain age, in particular law-making treaties of the post-
1945 era, the context in which they operate becomes different from the one in which they
were conceived . . . As their context evolves, treaties face the danger of either being ‘frozen’
into a state in which they are less capable of fulfilling their object and purpose, or of losing
their foundation in the agreement of the parties. The parties to a treaty normally wish to
preserve their agreement, albeit in a manner which conforms to present-day exigencies”:
International Law Commission, “First report on subsequent agreements and subsequent
practice in relation to treaty interpretation,” UN Doc. A/CN.4/660 (Mar. 19, 2013), at [4].
123
“[I]nternational treaties and conventions are a product of their time; yet, they have an
aptitude to face changing conditions, and their interpretation and application in times
bears witness that they are living instruments. They evolve with time, otherwise they
would fall into desuetude”: Whaling in the Antarctic (Australia v. Japan, New Zealand
intervening), [2014] ICJ Rep 226, Separate Opinion of Judge Cançado Trindade, at [88].
124
E. Lauterpacht ed., International Law: The Collected Papers of Hersch Lauterpacht (1970)
(Lauterpacht, Collected Papers), at 133.

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 156 2 in t e r a c t i v e i n te r pr et a t i o n o f r e f u g e e ri g h t s

meaning acquired by the terms in question upon each occasion on which

the treaty is to be applied.125
The Refugee Convention is clearly a treaty intended to have an evolving
content. Not only was the elaboration and adoption of the Protocol in 1967
intended precisely to ensure a contemporary and geopolitically inclusive
standard,126 but that goal has also been unambiguously affirmed by the state
parties meeting on the fiftieth and sixtieth anniversaries of the Refugee
Convention.127
The importance of interpreting the Refugee Convention in the light of its
contemporary object and purpose follows also from the overarching duty to
construe a treaty in a way that ensures its present-day effectiveness,128 this
being a core component of the duty of good faith treaty interpretation.129 As
framed by the International Law Commission, “[w]hen a treaty is open to two
interpretations, one of which does and the other does not enable the treaty to
have appropriate effects, good faith and the objects and purposes of the treaty
demand that the former interpretation should be adopted [emphasis
added].”130 An inquiry designed to ensure the “appropriate effects” of the
Refugee Convention in its modern context should focus on two concerns.

125
Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicaragua), [2009] ICJ
Rep 213, at [63]–[64].
126
See Chapter 1.5.1. 127 See text at notes 75–79.
128
See Bos, “Theory and Practice,” at 150: “In the International Law Commission’s view, the
‘object and purpose’ phrase in Article 31, paragraph 1, is the consecration of the maxim ut
magis valeat quam pereat.” The principle of effectiveness has been relied upon, for
example, in Corfu Channel Case (United Kingdom v. Albania), Merits, [1949] ICJ Rep 4,
at 24–26; and Free Zones of Upper Savoy and the District of Gex, [1929] PCIJ Rep, Series A,
No. 22, at 13. More recently, the World Trade Organization Appellate Body invoked the
duty to interpret treaties so as to advance their effectiveness in Canada – Term of Patent
Protection, Dec. No. WT/DS170/R (WTO AB, Oct. 2000), at [6.49]. The United States
Supreme Court has recognized the effectiveness principle in e.g. Bacardi Corp. of America
v. Domenech, (1940) 311 US 150 (US SC, Dec. 9, 1940), at 163; and Jordan v. Tashiro,
(1928) 278 US 123 (US SC, Nov. 19, 1928), at 127.
129
According to the International Law Commission, good faith implies the requirement to
remain faithful to the intentions of the parties, refraining from defeating them by a literal
interpretation: [1966] 2 Yearbook of the International Law Commission 211. The pacta
sunt servanda principle is codified in the Vienna Convention, at Art. 26: “Every treaty in
force is binding upon the parties to it and must be performed by them in good faith.” As
Aust observes, “[i]nterpretation is part of the performance of the treaty and, therefore, the
process of examining the relevant materials and assessing them must be done in good
faith”: Aust, Modern Treaty Law, at 208. The obligation to construe treaties in good faith
does not, however, amount to an independent source of substantive obligation: R v.
Immigration Officer at Prague Airport et al., ex parte European Roma Rights Centre
et al., [2004] UKHL 55 (UK HL, Dec. 9, 2004), at [19] (per Lord Bingham) and [57]–
[62] (per Lord Hope).
130
[1966] 2 Yearbook of the International Law Commission 219.

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 2.3 ob j e c t a n d p u r p o s e , c o n c eiv ed as e f f e c t i v e n e s s 157

First, there will sometimes be important factual shifts in the social reality
within which a treaty must function. In the context of refugee protection, for
example, the current array of non-entrée policies,131 designed to prevent
refugees from accessing the territory of many states, simply did not exist
when the Refugee Convention was concluded in 1951. Yet since the duty of
non-refoulement prohibits the turning back of refugees “in any manner
whatsoever,”132 are such deterrent measures prohibited? Similarly, while the
Refugee Convention grants refugees access to such rights as public relief,
housing, and social security,133 the modern social welfare state did not exist
in 1951. How then should these socioeconomic entitlements be mapped onto
the architecture of modern social support? If the commitment of states to the
regulation of modern refugee flows within the framework of the Refugee
Convention is to be honored,134 it follows that an effort must be made to
understand the ways in which Convention duties are to be applied within host
societies as presently constructed.135 The interpretive challenge – and duty – is
to translate historical understanding of refugee rights in a way that positions
states to meet the protection challenges presented by altered social and political
circumstances.136
131
See generally J. Hathaway, “The Emerging Politics of Non-entrée,” (1992) 91 Refugees 40;
also published as “L’émergence d’une politique de non-entrée,” in F. Julien-Laferrière ed.,
Frontières du droit, Frontières des droits 65 (1993); and T. Gammeltoft-Hansen and
J. Hathaway, “Non-refoulement in a World of Cooperative Deterrence,” (2015) 53(2)
Columbia Journal of Transnational Law 235.
132
The duty of non-refoulement is analyzed in Chapter 4.1.
133
These rights are analyzed at Chapters 4.4, 6.1.3, 6.3, and 6.4.
134
See Chapter 2.2 at note 75.
135
See A. North and N. Bhuta, “The Future of Protection – The Role of the Judge,” (2001) 15(3)
Georgetown Immigration Law Journal 479, at 484, in which the authors affirm the critical
importance of refugee law judges being “pragmatic and responsive to new realities.” Indeed,
as noted above, state parties to the Refugee Convention and Protocol have formally insisted
upon precisely this understanding by recognizing “the continuing relevance and resilience
of [the Convention’s] regime of rights and principles, including at its core the principle of
non-refoulement”, even as they took note of the “complex features of the evolving environ-
ment in which refugee protection has to be provided, including . . . mixed population flows,
[and] the high costs of hosting large numbers of refugees and asylum-seekers”: “Declaration
of States Parties to the 1951 Convention and/or its 1967 Protocol relating to the Status of
Refugees,” UN Doc. HCR/MMSP/2001/09, Dec. 13, 2001, incorporated in Executive
Committee of the High Commissioner’s Program, “Agenda for Protection,” UN Doc. EC/
52/SC/CRP.9/Rev.1, June 26, 2002. The Declaration was welcomed by the UN General
Assembly in Res. A/RES/57/187, Dec. 18, 2001, at [4]. This Declaration is to be taken into
account as context relevant to interpretation of the Refugee Convention: see Chapter 2.2 at
note 73.
136
The unambiguous text of a treaty nonetheless sets a limit to the range of possible
interpretations of a treaty so as to meet contemporary challenges. For example, the fact
that refugee rights are limited to persons who are outside their own country was sensibly
determined by the House of Lords to foreclose the possibility of granting Art. 33 rights to
persons still within their own state. “[T]here is no want of good faith if a state interprets

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 158 2 int era ct ive inter pr e ta tion of refugee right s

Second and more specifically, it is important that the Refugee Convention

be interpreted in a way that reconciles the treaty to its contemporary inter-
national legal context.137 Perhaps most obviously, the Refugee Convention was
only the second binding human rights treaty promulgated by the United
Nations, having come into force more than two decades before the Human
Rights Covenants.138 Yet because refugees are normally entitled to claim the
benefit of general human rights treaties,139 and specifically because the subject
matter of the Covenants overlaps frequently with that of the Refugee
Convention, it is important that some coherence be given to cognate concepts
under these treaties. The Supreme Court of Canada has made this point clearly:
[T]he Refugee Convention itself expresses a “profound concern for refu-
gees,” and its principal purpose is to “assure refugees the widest possible
exercise of . . . fundamental rights and freedoms.” This negates the sugges-
tion that the provisions of the Refugee Convention should be used to deny
rights that other legal instruments make universally available to everyone.140
The fact that the Covenants are regularly interpreted at the international level
by a legally authoritative process which requires engagement with real cases
involving real people141 gives additional impetus to the logic of ensuring
a harmonious construction of rights and duties.142

a treaty as meaning what it says and declines to do anything significantly greater than or
different from what it agreed to do. The principle . . . pacta sunt servanda cannot require
departure from what has been agreed. This is more obviously true where a state or states
very deliberately decided what they were and were not willing to undertake to do”: R v.
Immigration Officer at Prague Airport et al., ex parte European Roma Rights Centre et al.,
[2004] UKHL 55 (UK HL, Dec 9, 2004), at [19].
137
This understanding is analogous to the view that “it is a rule of interpretation that a text
emanating from a Government must, in principle, be interpreted as producing and as
intended to produce effects in accord with existing law and not in violation of it”: Rights of
Passage over Indian Territory (Portugal v. India), Preliminary Objections, [1957] ICJ Rep
125, at 142.
138
See Chapters 1.4 and 1.5. 139 See Chapter 1.5.4.
140
Suresh v. Canada, [2002] 1 SCR 3 (Can. SC, Jan. 11, 2002).
141
See Chapter 2.4 at note 183 ff.
142
In a decision challenging the detention of a non-removable failed asylum-seeker, the Full
Federal Court of Australia not only drew heavily on the Civil and Political Covenant, but
expressly addressed the relevance of the views of the Human Rights Committee adopted
under its authority to receive complaints of breach of that treaty. “Although the views of
the Committee lack precedential authority in an Australian court, it is legitimate to have
regard to them as the opinions of an expert body established by the treaty to further its
objectives by performing functions that include reporting, receiving reports, [and] con-
ciliating and considering claims that a state party is not fulfilling its obligations”: Minister
for Immigration and Multicultural and Indigenous Affairs v. Al Masri, (2003) 197 ALR 241
(Aus. FFC, Apr. 15, 2003). A commitment to taking real account of the work of UN human
rights supervisory bodies was expressed by Justice Kirby of the High Court of Australia,
who noted that “[i]n ascertaining the meaning of the [International Covenant on Civil and
Political Rights] . . . it is permissible, and appropriate, to pay regard to the views of the [UN

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 2.3 ob j e c t an d p u r p o s e , c o n c ei v e d as e f f e c t i v e n e s s 159

The duty to interpret treaties as living instruments able to function as part of

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

Human Rights Committee] . . . Such views do not constitute legally binding rulings for the
purposes of international law. However, they are available to municipal courts, such as
this, as the opinions of independent experts in international law, to assist in the under-
standing of the requirements of that law for whatever weight the municipal legal system
accords to it. In Australia, that is the weight of persuasive influence. No more; but no less”:
Minister for Immigration and Multicultural and Indigenous Affairs v. B and B, [2004] HCA
20 (Aus. HC, Apr. 29, 2004), per Kirby J., at [148].
143
Tyrer v. United Kingdom, (1978) 2 EHRR 1 (ECtHR, Apr. 25, 1978), at [31]; Öcalan
v. Turkey, App. No. 46221/99 (ECtHR, May 12, 2005), at [163]; Al-Saadoon and Mufdhi
v. United Kingdom, App. No. 61498/08 (ECtHR, Mar. 2, 2010), at [119]. Merrills observes
that “[t]he principle that the Convention must be interpreted as a ‘living instrument’ is
now generally accepted”: Merrills, European Court, at 79.
144
The evolutionary approach is described as “particularly appropriate in Community law
where . . . the treaties provide mainly a broad programme or design rather than a detailed
blueprint”: L. Brown and T. Kennedy eds., Brown and Jacobs: The Court of Justice in the
European Communities (2000), at 339.
145
“The Appellate Body has accepted in its treaty interpretations that it may be evident from
a treaty that a term has an evolutionary meaning, with some built-in ‘elasticity’ to
accommodate new shades of meaning as they develop, while respecting the bargain that
has been struck”: Lennard, “Navigating by the Stars,” at 75. As a general matter, “[t]he
WTO Panels and the Appellate Body rely on the treaty interpretation rules expressed in
the Vienna Convention . . . as the basic rules for interpreting WTO instruments. This is
because those rules are generally regarded as codification of the public international law
rules of treaty interpretation”: ibid. at 17.
146
US – Import Prohibition of Certain Shrimp and Shrimp Products, WTO Dec. No. WT/
DS58/AB/R (WTO AB, Oct. 12, 1998), at [130].
147
North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal
Republic of Germany/Netherlands), [1969] ICJ Rep 3, at 125 (Separate Opinion of Judge
Ammoun).

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 160 2 in t er a c tiv e i n t e r p r e t a t i o n o f r ef u g ee r i g h ts

Court.”148 And more generally, the Court has determined that “an inter-
national instrument has to be interpreted and applied within the framework
of the entire legal system prevailing at the time of the interpretation
[emphasis added]”149 – a principle expressly affirmed in the context of
international human rights law.150 It moreover aligns with the duty to
interpret a treaty in its international legal context, as previously described.151
The evolutionary principle was applied by the House of Lords to refugee law
in a way that blends it seamlessly with the duty to respect historical intentions:
It is . . . plain that the Convention must be seen as a living instrument in
the sense that while its meaning does not change over time, its application
will. I would agree with the observation [that] . . . “[u]nless it is seen as
a living thing, adopted by civilized countries for a humanitarian end which
is constant in motive but mutable in form, the Convention will eventually
become an anachronism” [emphasis added].152
In line with this formulation, an interpretive approach that synthesizes foun-
dational insights from analysis of the historical intentions of a treaty’s drafters
148
Constitution of the Maritime Safety Committee of the Intergovernmental Maritime
Consultative Organization (IMCO), [1960] ICJ Rep 73, at 126 (Separate Opinion of
Judge Mosler).
149
Legal Consequences for States of the Continued Presence of South Africa in Namibia, [1971]
ICJ Rep 6. See also Dispute regarding Navigational and Related Rights (Costa Rica
v. Nicaragua), [2009] ICJ Rep 213, at [9] (Judge ad hoc Guillaume).
150
“Treaties that affect human rights cannot be applied in such a manner as to constitute
a denial of human rights as understood at the time of their application”: Gabčíkovo–
Nagymaros Project (Hungary/Slovakia), [1997] ICJ Rep 7, at 114–115 (Judge
Weeramantry).
151
Vienna Convention, at Art. 31(1). See Chapter 2.2 at note 88.
152
Sepet and Bulbul v. Secretary of State for the Home Department, [2003] UKHL 15 (UK HL,
Mar. 20, 2003), per Lord Bingham. In reaching this conclusion, Lord Bingham adopted the
reasoning of Sedley J. in R v. Immigration Appeal Tribunal, ex parte Shah, [1997] Imm AR
145 (Eng. QBD, Nov. 11, 1996), at 152. He further approved of the observation of Laws L.
J. in R v. Secretary of State for the Home Department, ex parte Adan and Aitseguer, [1999] 3
WLR 1274 (UK CA, July 23, 1999), that “[i]t is clear that the signatory states intended that
the Convention should afford continuing protection for refugees in the changing circum-
stances of the present and future world. In our view the Convention has to be regarded as
a living instrument: just as, by the Strasbourg jurisprudence, the European Convention on
Human Rights is so regarded.” More specifically, Lord Bingham observed that “the reach
of an international human rights convention is not forever determined by the intentions of
those who originally framed it. Thus . . . the House was appropriately asked to consider
a mass of material illustrating the movement of international opinion among those
concerned with human rights and refugees in the period, now a very significant period,
since the major relevant conventions were adopted”: [2003] UKHL 15, at [11]. After
consideration of the English authorities, the New Zealand tribunal concluded that “a
dynamic and purposive approach to the interpretation of the Refugee Convention . . .
ensures that the protection afforded by the Act can be adapted as required to meet
evolving and changing protection needs over time”: AC (Syria), Dec. No. 800035 (NZ
IPT, May 27, 2011), at [66].

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 2.4 b ut what about sta te pra ctice? 161

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

2.4 But What About State Practice?

Art. 31(3)(b) of the Vienna Convention provides that treaties are to be inter-
preted in the light of “any subsequent practice in the application of the treaty
which establishes the agreement of the parties regarding its interpretation.”153
As previously discussed,154 this part of the general rule of interpretation
validates reliance on, for example, the conclusions of meetings of state parties
and the protection conclusions adopted by the state members of the UNHCR’s
Executive Committee. But since “practice” might be quite broadly
understood,155 what is the interpretive relevance of state conduct that seems
to undercut or diminish rights? Could such conduct be invoked to effectively
“interpret away” a codified refugee right? If a particular form of rights-
avoidance were to become endemic such that a clear concordance of practice
were demonstrable, could Art. 31 be said to allow reliance on such consistent
state practice to avoid an interpretation grounded in an understanding of text
construed purposively, in context, and with a view to ensuring the Refugee
Convention’s effectiveness?156
The concern arises because Art. 31(3)(b)’s validation of state practice
reflects the traditional international law scenario in which a treaty is essentially
a contract between and for the benefit of particular states. In that context, it is
easy to see the relevance of state practice as, in effect, a medium for the
continual adjustment and modification of treaty-based understandings. The
153
Vienna Convention, at Art. 31(3)(b). 154 See Chapter 2.2 at note 67 ff.
155
“Subsequent practice under article 31, paragraph 3(b), may consist of any ‘conduct.’ The
word ‘conduct’ . . . include[s] not only acts, but also omissions, including relevant silence,
which contribute to establishing agreement”: International Law Commission, “Draft
conclusions on subsequent agreements and subsequent practice in relation to the inter-
pretation of treaties, with commentaries,” UN Doc. A/73/10 (Aug. 8, 2018), at Conclusion
4, Commentary [17]. The litmus test for relevant state practice has been carefully defined
by the WTO Appellate Body as a “concordant, common and consistent sequence of acts or
pronouncements which is sufficient to establish a discernible pattern implying the agree-
ment of the parties regarding its interpretation”: Japan – Alcoholic Beverages II, Report of
the Appellate Body, WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R (Oct. 4, 1996), at E.
156
Practice may also be relevant under Art. 32: see text at note 175.

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 162 2 int erac ti ve interp r et at ion of r e fugee r ights

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

157
Iran–United States Claims Tribunal, The Islamic Republic of Iran and the United States of
America, Award No. 382-B1-FT (Aug. 1988).
158
As the International Law Commission has observed, “[h]uman rights courts and treaty
bodies have followed a somewhat different approach with regard to subsequent agree-
ments and subsequent practice than adjudicative bodies under international economic
treaty regimes. Thus, human rights courts and treaty bodies do not seem to have con-
sidered subsequent agreements by the parties in their interpretation of substantive human
rights provisions”: International Law Commission, “First report on subsequent agree-
ments and subsequent practice in relation to treaty interpretation,” UN Doc. A/CN.4/660
(Mar. 19, 2013), at [36].
159
Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.37, Aug. 16, 1950, at
15. See also Statement of Mr. Weis of the IRO, ibid. at 16.
160
Velásquez-Rodríguez v. Honduras (Merits, Judgment), Ser. C No. 4 (IACtHR, July 29,
1988), at [151]; The Right to Information on Consular Assistance in the Framework of the
Guarantees of Due Process of Law (Advisory Opinion OC-16/99), Ser. A No. 16 (IACtHR,
Oct. 1, 1999), at [130]–[133] and [137].
161
See e.g. Loizidou v. Turkey (Preliminary Objections), ECHR Series A, No. 310 (ECtHR,
Feb. 23, 1995), at [73]; Demir and Baykara v. Turkey, App. No. 34503/97 (ECtHR, Nov. 12,
2008), at [65].

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 2.4 b ut what about state practice? 163

view of the relevance of state practice in interpreting refugee and other human
rights treaties is very much in line with the classic approach taken to the
construction of “lawmaking treaties,” that is, treaties under which
the Contracting States do not have any interests of their own; they merely
have, one and all, a common interest, namely, the accomplishment of
those high purposes which are the raison d’être of the convention.
Consequently, in a convention of this type, one cannot speak of individual
advantages to States, or of the maintenance of a perfect balance between
rights and duties.162
In the case of lawmaking treaties – of which refugee and other human rights
accords are surely a paradigmatic example – it is recognized that “the character
of the treaty may affect the question whether the application of a particular
[interpretive] principle, maxim or method is suitable in a particular case”:163
It has long been recognized that human rights treaties have a special char-
acter. This distinguishes them from multilateral treaties that are designed to
set up reciprocal arrangements between states. Humanitarian agreements of
the kind to which the [Refugee] Convention belongs are entered into for
a different purpose. Their object is to protect the rights and freedoms of
individual human beings.164
Specifically, where a treaty is “less a manifestation of free will than a calling
to mind of principle obligatory for every civilized State, less a contract than
universally valid regulation of objective law . . . in the matter of interpretation,
validity of the convention is placed outside the sphere of the will of the
Contracting Parties.”165 In the words of the European Court of Human

162
Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide,
[1951] ICJ Rep 15, at 26. Judge de Visscher defined lawmaking treaties as treaties the object
of which is the laying down of common rules of conduct (normes de conduite communes):
C. de Visscher, Problèmes d’interpretation judiciaire en droit international public (1963)
(de Visscher, Problèmes d’interpretation), at 128.
163
Remarks of Sir Humphrey Waldock, Chief Rapporteur of the International Law
Commission for the Draft Articles on the Law of Treaties, [1964] 2 Yearbook of the
International Law Commission 55. The recent work of the International Law
Commission only briefly addresses this general question of the sui generis nature of
human rights and other lawmaking treaties, with its analysis focused on the more narrow
question of the interpretive weight of the views of human rights treaty supervisory bodies
(discussed at note 183 ff). It noted, however, that “[t]he Commission itself, when consid-
ering draft conclusion 1 of the present project, left the question open as to whether it
should refer to the ‘nature’ of a treaty as a relevant consideration for its interpretation, but
agreed that all questions of treaty interpretation can be resolved within the framework of
articles 31 and 32 of the Vienna Convention”: International Law Commission, “Fourth
report on subsequent agreements and subsequent practice in relation to treaty interpret-
ation,” UN Doc. A/CN.4/694 (Mar. 7, 2016), at [41] ff.
164
R v. Asfaw, [2008] UKHL 31 (UK HL, May 21, 2008), at [54], per Lord Hope.
165
De Visscher, Problèmes d’interpretation, at 38 (unofficial translation).

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 164 2 in t er a c tiv e i nt e r p r e t a t i o n o f r ef u g ee r i g h ts

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

166
Wemhoff v. Germany, (1968) 1 EHRR 55 (ECtHR, June 27, 1968), at [23]. See also Klass
v. Germany, (1979) 2 EHRR 214 (ECtHR, Sept. 6, 1978), at [42], where the Court
determined that restrictions on human rights are to be narrowly construed in light of
the fundamental human rights objectives of the European Convention on Human Rights.
167
“There is . . . no reason why articles 31 and 32 would be insufficient to deal with particular
aspects of human rights treaties. The provisions, and the Vienna Convention generally, are
not only suitable for a limited ‘ideal type’ of multilateral treaty, but they were even
elaborated when the existence of expert bodies within the emerging human rights regime
was already well known”: International Law Commission, “Fourth report on subsequent
agreements and subsequent practice in relation to treaty interpretation,” UN Doc. A/
CN.4/694 (Mar. 7, 2016), at [41].
168
Vienna Convention, at Art. 31(3)(b). Importantly, however, “[t]he term ‘agreement’ in the
Vienna Convention . . . does not imply a particular degree of formality . . . [A]ny identifi-
able agreement of the parties is sufficient. There is no requirement that such an agreement
be published or registered . . . only the awareness of the position of the other parties
regarding the interpretation of a treaty justifies the characterization of an agreement under
article 31(3) as an ‘authentic’ means of interpretation. It is, however, possible that the
awareness of the position of the other party or parties is constructive, particularly in the
case of treaties which are implemented at the national level without a common supervisory
mechanism”: International Law Commission, “Second report on subsequent agreements
and subsequent practice in relation to treaty interpretation,” UN Doc. A/CN.4/671 (Mar.
26, 2014), at [54]–[55].
169
“[I]nterpretive conduct must have been motivated by a sense of legal obligation. For
example, in the Asylum Case, the [International Court of Justice] thought that the granting
of asylum in the cases referred to it may have been the product of political expediency
rather than an indication of the existence of a legal obligation. This requirement is the
same as that found for the development of a customary norm through the practice of
states . . . [T]he strength of evidence of practice will often lie in its inadvertent nature: the
agent acts on a non-politically motivated interpretation of the provision in question,
rather than consciously attempting to establish a practice”: G. McGinley, “Practice as
a Guide to Treaty Interpretation,” [Winter 1985] Fletcher Forum 211 (McGinley, “Practice

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 2.4 b ut what about state practice? 165

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

as a Guide”), at 218. See e.g. the approach of the European Court of Human Rights, which
has taken the view that state practice is not within the bounds of Art. 31(3)(b) unless
motivated by opinio juris: Cruz Varas v. Sweden, (1991) 14 EHRR 1 (ECtHR, Mar. 20,
1991), at [100]; Soering v. United Kingdom, (1989) 11 EHRR 439 (ECtHR, July 7, 1989),
at [103].
170
Certain Expenses of the United Nations, [1962] ICJ Rep 151, at 201 (Separate Opinion of
Judge Fitzmaurice).
171
Ibid. at 232 (Dissenting Opinion – on another proposition – of Judge Winiarski).
172
See the detailed empirical analysis of failures to respect refugee rights in Chapters 4–7.
173
The International Law Commission took the view in an early draft that “every application
of a treaty presupposes its interpretation.” This allowed conduct not meeting the strictures
of Art. 31(3)(b) nonetheless to be shoe-horned into Art. 31(3)(a), enabling a much broader
range of conduct to be deemed presumptively relevant to interpretation (“Whereas in the
case of a ‘subsequent agreement between the parties regarding the interpretation of the
treaty’ under article 31(3)(a) (first alternative), the position regarding the interpretation of
a treaty is specifically and purposefully assumed, this may be less clearly identifiable in the
case of a ‘subsequent agreement . . . regarding . . . the application of its provisions’ under
article 31(3)(a) (second alternative). Such an assumption of a position regarding inter-
pretation ‘by application’ is implied in simple acts of application of the treaty, that is, in
‘every measure taken on the basis of the interpreted treaty,’ under articles 31(3)(b) and
32(1)”: International Law Commission, “Second report on subsequent agreements and
subsequent practice in relation to treaty interpretation,” UN Doc. A/CN.4/671 (Mar. 26,
2014), at [4]). While plausible as a literal construction of Art. 31(3)(a), this seems an
unprincipled effort to give heightened interpretive weight to conduct that would normally
have been thought relevant only under Art. 32: see International Law Commission,
“Second report on subsequent agreements and subsequent practice in relation to treaty
interpretation,” UN Doc. A/CN.4/671 (Mar. 26, 2014), at [10]. Indeed, the context of Art.
31(3)(a) – in particular the existence of Art. 31(3)(b) specifically addressed to practice –
surely argues against this literalist understanding. The Commission’s final report on this
topic does not make the same claim: International Law Commission, “Draft conclusions
on subsequent agreements and subsequent practice in relation to the interpretation of
treaties, with commentaries,” UN Doc. A/73/10 (Aug. 8, 2018).
174
Because “[s]ubsequent practice as an authentic means of interpretation under article 31,
paragraph 3(b), consists of conduct in the application of the treaty, after its conclusion,
which establishes the agreement of the parties regarding the interpretation of the treaty
[emphasis added]” (International Law Commission, “Draft conclusions on subsequent
agreements and subsequent practice in relation to the interpretation of treaties, with

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 166 2 in t er a c tiv e i nt e r p r e t a t i o n o f r ef u g ee r i g h ts

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

commentaries,” UN Doc. A/73/10 (Aug. 8, 2018), at Conclusion 4(2)), it does not include
state practice that seeks to avoid rather than to apply the treaty.
175
As noted above, the fact that a treaty’s preparatory work and the circumstances of its
conclusion are the only listed supplementary means of interpretation may suggest that
they are worthy of special consideration in the interpretive process: see Chapter 2.3 at note
101 ff.
176
See e.g. Aust, Modern Treaty Law, at 220–221.
177
“The element which distinguishes subsequent agreements and subsequent practice as
authentic means of interpretation under article 31(3)(a) and (b), and other subsequent
practice as a supplementary means of interpretation under article 32, is the ‘agreement’ of
the parties regarding the interpretation of the treaty concerned. It is the agreement of the
parties which gives the means of interpretation under article 31(3) their specific function
and value for the interactive process of interpretation under the general rule of interpret-
ation of article 31”: International Law Commission, “Second report on subsequent
agreements and subsequent practice in relation to treaty interpretation,” UN Doc. A/
CN.4/671 (Mar. 26, 2014), at [49]. See International Law Commission, “Draft conclusions
on subsequent agreements and subsequent practice in relation to the interpretation of
treaties, with commentaries,” UN Doc. A/73/10 (Aug. 8, 2018), at Conclusion 4(1)–(2),
referencing the focus on “agreement between the parties.”
178
“Subsequent practice by one or more parties to a treaty may also be a means of interpretation
under article 32 of the Vienna Convention even if not all conditions of article 31(3)(b) are
fulfilled”: International Law Commission, “First report on subsequent agreements and
subsequent practice in relation to treaty interpretation,” UN Doc. A/CN.4/660 (Mar. 19,
2013), at [65]. But critically, “[i]n using subsequent practice by one or more, but not all,
parties to a treaty as a supplementary means of interpretation under article 32 one must . . .
always remain conscious of the fact that ‘the view of one State does not make international
law.’ In any case, the distinction between agreed subsequent practice under article 31,
paragraph 3(b), as an authentic means of interpretation, and other subsequent practice (in
a broad sense) under article 32, implies that a greater interpretative value should be
attributed to the former”: International Law Commission, “Draft conclusions on subsequent
agreements and subsequent practice in relation to the interpretation of treaties, with
commentaries,” UN Doc. A/73/10 (Aug. 8, 2018), at Conclusion 4, Commentary [33]. See
also Sinclair, Vienna Convention, at 138; McGinley, “Practice as a Guide,” at 221.

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 2.4 but what about state practice? 167

treaty.”179 Most critically, rights-evasive practice is not relevant since “[i]t

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

179
International Law Commission, “Draft conclusions on subsequent agreements and sub-
sequent practice in relation to the interpretation of treaties, with commentaries,” UN Doc.
A/73/10 (Aug. 8, 2018), at Conclusion 4(3).
180
International Law Commission, “Draft conclusions on subsequent agreements and sub-
sequent practice in relation to the interpretation of treaties, with commentaries,” UN Doc.
A/73/10 (Aug. 8, 2018), at Conclusion 7(3).
181
The probative value of state practice beyond the bounds of Art. 31’s strictures should be
cautiously assessed. As McGinley notes, “The practice may be so vast as to make it virtually
unavailable to the court or the parties. Or, much may be unrecorded or otherwise
unavailable. It may be generated at will by the parties and be highly self-serving.
Moreover, because practice is amenable to subjective interpretation, it may be readily
bent to particular points of view. Finally, judicial selectivity is often a problem: acts
ignored by one judge may be given special significance by another”: McGinley, “Practice
as a Guide,” at 219.
182
L. Helfer and A.-M. Slaughter, “Toward a Theory of Effective Supranational
Adjudication,” (1997) 107 Yale Law Journal 273, at 371–372.
183
“A pronouncement of an expert treaty body cannot as such constitute a subsequent
agreement or subsequent practice under article 31, paragraph 3(a) or (b), since this
provision requires an agreement of the parties or subsequent practice of the parties that

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 168 2 int erac tiv e interp r et at ion of r e fugee r ights

nonetheless concluded that such authoritative opinions cannot be ignored in

the interpretive process.184
The International Law Commission took its cue from the preparedness of
the International Court of Justice to give interpretive weight to the positions of
the human rights treaty bodies.185 For example, in a critical case involving the
lawfulness of expulsion, the Court opted to pay substantial deference to the
interpretation of the Civil and Political Covenant rendered by that treaty’s
expert body, the Human Rights Committee:
Since it was created, the Human Rights Committee has built up
a considerable body of interpretative case law, in particular through its
findings in response to the individual communications which may be
submitted to it in respect of States parties to the first Optional Protocol,
and in the form of “General Comments.” Although the Court is in no way
obliged, in the exercise of its judicial functions, to model its own interpret-
ation of the Covenant on that of the Committee, it believes that it should
ascribe great weight to the interpretation adopted by this independent body
that was established specifically to supervise the application of that treaty.186
Much the same position has been taken by both regional human rights courts187
and senior national courts:188

establishes their agreement regarding the interpretation of the treaty”: International Law
Commission, “Draft conclusions on subsequent agreements and subsequent practice in
relation to the interpretation of treaties, with commentaries,” UN Doc. A/73/10 (Aug. 8,
2018), at Conclusion 13, Commentary [9].
184
“A pronouncement of an expert treaty body may give rise to, or refer to, a subsequent
agreement or subsequent practice by parties under article 31, paragraph 3, or other
subsequent practice under article 32”: ibid. at Conclusion 13(3).
185
Ibid. at Conclusion 13, Commentary [21].
186
Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo),
Judgment, [2010] ICJ Rep 639 (Nov. 30, 2010), at [66]. The Court also referred to the
positions of both the Human Rights Committee and the Committee on Economic, Social
and Cultural Rights in Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory, Advisory Opinion, [2004] ICJ Rep 136, at [109]–[112].
187
International Law Commission, “Fourth report on subsequent agreements and subse-
quent practice in relation to treaty interpretation,” UN Doc. A/CN.4/694 (Mar. 7, 2016), at
[29]–[30].
188
“The practice of international and domestic courts suggests that pronouncements of
human rights expert bodies, in the vast majority of cases, are mostly not taken into
account by those courts as a matter of obligation but rather in a supplementary
fashion . . . That does not exclude the idea that such pronouncements should nevertheless
be taken very seriously”: International Law Commission, “Fourth report on subsequent
agreements and subsequent practice in relation to treaty interpretation,” UN Doc. A/
CN.4/694 (Mar. 7, 2016), at [53], [55]. See also International Law Commission, “Draft
conclusions on subsequent agreements and subsequent practice in relation to the inter-
pretation of treaties, with commentaries,” UN Doc. A/73/10 (Aug. 8, 2018), at Conclusion
13, Commentary [22].

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 2.4 bu t w ha t a bo u t st at e pr ac tic e ? 169

While national courts have generally not been prepared to accept that they
are formally bound by committee interpretations of treaty provisions,
most courts have recognized that, as expert bodies entrusted by the
States parties with functions under the treaty, the treaty bodies’ interpret-
ations deserve to be given considerable weight in determining the meaning
of a relevant right and the existence of a violation.189
Intriguingly, these top courts generally avoid formally justifying their validation
of treaty body decisions in the interpretive process. In seeking to make conceptual
sense of this pattern of consistent but legally unmoored reliance on treaty body
views and similar pronouncements, the International Law Commission firmly
rejected the view that all state parties to a given human rights treaty should be
treated as having acquiesced in every decision of that treaty’s supervisory body,
however framed and to whomever addressed, such as would bring those decisions
within the scope of Art. 31.190 While recognizing that the pronouncements of
expert treaty bodies can in principle191 either reflect or serve as a catalyst to state
practice with significant interpretive weight under Art. 31(3)(a)–(b),192 it found

189
International Law Association, “Final Report on the Impact of Findings of the United
Nations Human Rights Treaty Bodies: Report of the Seventy-first Conference of the
International Law Association, Berlin” (2004), at [175].
190
While acknowledging that “[s]ilence on the part of one or more parties can constitute
acceptance of the subsequent practice when the circumstances call for some reaction”
(International Law Commission, “Draft conclusions on subsequent agreements and
subsequent practice in relation to the interpretation of treaties, with commentaries,” UN
Doc. A/73/10 (Aug. 8, 2018), at Conclusion 10(2)), the International Law Commission has
nonetheless determined “that it cannot usually be expected that States parties take
a position with respect to every pronouncement by an expert treaty body, be it addressed
to another State or to all States generally. On the other hand, State parties may have an
obligation, under a duty to cooperate under certain treaties, to take into account and to
react to a pronouncement of an expert treaty body that is specifically addressed to them, or
to individual communications regarding their own conduct”: ibid., at Conclusion 13,
Commentary [19].
191
“Whereas a pronouncement of an expert treaty body can, in principle, give rise to
a subsequent agreement or a subsequent practice by the parties themselves under article
31, paragraph 3(a) and (b), this result is not easily achieved in practice. Most treaties that
establish expert treaty bodies at the universal level have many parties. It will often be
difficult to establish that all parties have accepted, explicitly or implicitly, that a particular
pronouncement of an expert treaty body expresses a particular interpretation of the
treaty”: ibid. at Conclusion 13, Commentary [12].
192
“A pronouncement of an expert treaty body may give rise to, or refer to, a subsequent
agreement or subsequent practice by parties under article 31, paragraph 3”: ibid. at
Conclusion 13(3). “The expression ‘may give rise to’ addresses situations in which
a pronouncement comes first and the practice and the possible agreement of the parties
occur thereafter. In this situation, the pronouncement may serve as a catalyst for the
subsequent practice of States parties. The term ‘refer to,’ on the other hand, covers
situations in which the subsequent practice and a possible agreement of the parties have
developed before the pronouncement, and where the pronouncement is only an indica-
tion of such an agreement or practice”: ibid., at Conclusion 13, Commentary [17].

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 170 2 int erac tiv e interp r et at ion of r e fugee r ights

that they will more commonly be a supplementary means of interpretation under

Art. 32,193 that is

in the discretionary way in which article 32 describes supplementary

means of interpretation . . . [Expert pronouncements] “contribute to the
determination of the ordinary meaning of the terms in their context and in
light of the object and purpose of the treaty.” Whereas pronouncements of
expert treaty bodies are not practice of a party to the treaty, they are
nevertheless conduct mandated by the treaty the purpose of which is to
contribute to the treaty’s proper application.194

In sum, state practice will normally be relevant to the interpretation of refugee

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

193
Ibid. at Conclusion 13, Commentary [16].
194
Ibid. at Conclusion 13, Commentary [24]. In reaching this general conclusion, the
Commission retreated from an earlier, quite detailed approach that advocated what is in
essence a sliding scale of interpretive salience for treaty body determinations. “[T]he
weight that should be given to such pronouncements in each case depends on specific
considerations which include the cogency of their reasoning, the character of the treaty
and of the treaty provisions in question, the professional composition of the responsible
body, the procedure by which a pronouncement has been arrived at and possibly other
factors. That means, in particular, that an individual pronouncement normally carries less
weight than a series of pronouncements or a general comment reflecting a settled position
on a question of interpretation (a ‘jurisprudence’ or ‘case law’)”: International Law
Commission, “Fourth report on subsequent agreements and subsequent practice in rela-
tion to treaty interpretation,” UN Doc. A/CN.4/694 (Mar. 7, 2016), at [56].
195
See text at notes 168–175. 196 See Chapter 2.3 at note 105.
197
See Chapter 2.3 at note 107.

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 2.4 but what abo ut s tate practice? 171

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

198
“[O]nly a broad approach to the text, and to the legal rights which the Convention affords,
will fulfill its objectives”: Chen Shi Hai v. Minister for Immigration and Multicultural
Affairs, (2000) 170 ALR 553 (Aus. HC, Apr. 13, 2000), per Kirby J.

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 172 2 i nt e ra ct i v e i n te r pr e tat i o n o f re f u g e e ri g h t s

evidence of the meaning of text conceived in context, purposively, and with

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

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 3

The Structure of Entitlement under the Refugee

Convention

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

1
See generally Chapter 1.5.4.
2
“[O]nce they achieve refugee status, not merely are they safeguarded from return home but
they secure all of the other manifold benefits provided for under the Convention relating to
the Status of Refugees”: Secretary of State for the Home Department v. AH (Sudan), [2007]
UKHL 49 (UK HL, Nov. 14, 2007), at [32], per Lord Brown; “What is clear is that signatories
to the Refugee Convention are bound to accord to those who have been determined to be
refugees the rights that are specified in those [international] instruments”: Plaintiff M70/
2011 v. Minister for Immigration and Citizenship, (2011) 244 CLR 144 (Aus. HC, Aug. 31,
2011), at [117], per Kiefel J. But see Negusie v. Attorney General, 555 US 511 (US SC, Mar. 3,
2009), at 3, in which Scalia J. (concurring) advocated the (internationally erroneous) view
that “[a]sylum is a benefit accorded by grace, not by entitlement.”
3
These concerns are developed in detail in Chapters 1.5.4 and 1.5.5.
4
See Chapter 2.3 at note 141.
173

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 174 3 e n t i t l e m e n t u n d e r t h e r e f u g e e co n v e n t i o n

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

5
Australian courts have favored the formal view that rights are owed only to other contracting
states, not to refugees themselves: NAGV and NAGW of 2002 v. Minister for Immigration and
Multicultural and Indigenous Affairs, [2005] HCA 6 (Aus. HC, Mar. 2, 2005), at [27]; MZQAP
v. Minister for Immigration and Multicultural and Indigenous Affairs, [2005] FCAFC 35 (Aus.
FFC, Mar. 15, 2005), at [3]. Because the Refugee Convention is an international treaty, it is of
course technically true that individuals are not themselves parties. But the same is true for all
international human rights treaties, which has not impeded general consensus that in pith and
substance it is human beings who are the true rights holders under such accords, despite being
reliant on states individually and collectively to enforce those treaty-based rights. As the Inter-
American Court of Human Rights observed, human rights treaties “are not multilateral treaties of
the traditional type concluded to accomplish the reciprocal exchange of rights for the mutual
benefit of the contracting states”; rather, “their object and purpose is the protection of the basic
rights of individual human beings, irrespective of their nationality, both against the state of their
nationality and all other contracting states”: Restrictions to the Death Penalty (Arts. 4(2) and 4(4)
American Convention on Human Rights) (Advisory Opinion OC-3/83) (IACtHR, Sept. 8, 1983),
at [50], quoting The Effect of Reservations on the Entry Into Force of the American Convention on
Human Rights (Arts. 74 and 75) (Advisory Opinion OC-2/82) (IACtHR, Sept. 24, 1982), at [29].
The European Court of Human Rights has similarly noted that “the purpose of the High
Contracting Parties in concluding the [European Convention on Human Rights] was not to
concede to each other reciprocal rights and obligations in pursuance of their individual national
interests but to realise the aims and ideals of the Council of Europe, as expressed in its Statute, and
to establish a common public order . . . [I]t follows that the obligations undertaken by the High
Contracting Parties in the Convention are essentially of an objective character, being designed
rather to protect the fundamental rights of individual human beings from infringement by any of
the High Contracting Parties than to create subjective and reciprocal rights for the High
Contracting Parties themselves”: Austria v. Italy, App. No. 788/60, 4 Eur. YB HR 116 (ECtHR,
Jan. 11, 1961), at 140.
6
See Chapter 3.1.

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 3 e ntitlement under the refugee convention 175

residing is also lawfully residing), rights once acquired are retained for the
duration of refugee status.7
Second, as under the 1933 Convention8 and the predecessor regime of aliens
law,9 the standard of treatment owed to refugees is defined through
a combination of absolute and contingent criteria. A few rights are guaranteed
absolutely to refugees, and must be respected even if the host government does
not extend these rights to anyone else, including its own citizens.10 More
commonly, the standard for compliance varies as a function of the relevant
treatment afforded another group under the laws and practices of the receiving
country. Under these contingent rights standards, refugees are entitled to be
assimilated either to nationals of a most-favored state, or to citizens of the
asylum state itself.11 If no absolute or contingent standard is specified for
a given right, refugees benefit from the usual standard of treatment applied
to non-citizens present in the asylum state.12 In applying this general residual
standard, however, refugees must be exempted from any criteria which
a refugee is inherently unable to fulfill,13 and may not be subjected to any
exceptional measures applied against the citizens of their state of origin.14
Third, an asylum state may not grant preferred treatment to any subset of the
refugee population. The interaction of the Refugee Convention’s endogenous
rule of non-discrimination and the general duty of non-discrimination requires
that all refugees benefit from equal access to rights in the host country.15
Fourth and finally, states enjoy a limited discretion to withhold some rights
from particular refugees on the grounds of national security.16 In contrast to
treaties such as the Civil and Political Covenant,17 however, the Refugee
7
“The structure of the 1951 Convention reflects [a] ‘layering’ of rights”: “Letter from
R. Andrew Painter, UNHCR Senior Protection Officer, to Robert Pauw,” (2003) 80
Interpreter Releases 423, at 427.
8
See Chapter 1.3 at notes 34–35.
9
See Chapter 1.1 at note 8. Refugee rights have “been forged on the basis of the legal
categories inherited from the law of aliens which were refined and adapted to the specific
situation of refugees”: V. Chetail, International Migration Law (2019) (Chetail,
International Migration Law), at 183.
10
See Chapter 3.3.3.
11
See Chapters 3.3.1 and 3.3.2. It will be recalled that this approach establishes a built-in
equalization and adjustment mechanism, since contingent rights vary as a function of the
relevant treatment afforded another group under the laws and practice of the state party.
See Chapter 1.1 at note 9.
12
See Chapter 3.2. 13 See Chapter 3.2.3. 14 See Chapter 3.5.2.
15
“A successful claimant will, of course, be entitled to all the benefits that are set out in
Articles 2–34 of the Convention without discrimination as to race, religion or country of
origin”: Januzi and Hamid v. Secretary of State for the Home Department, [2006] UKHL 5
(UK HL, Feb. 15, 2006), at [46]. See also Chapter 1.5.5.
16
See Chapter 3.5.1.
17
“In time of public emergency which threatens the life of the nation and the existence of
which is officially proclaimed, the States Parties to the present Covenant may take measures
derogating from their obligations under the present Covenant to the extent strictly required

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 176 3 e ntitlement under t he refugee c onvention

Convention does not allow states to derogate from their obligations on

a generalized basis, even in time of war or other serious national emergency.
The enforcement of these rights is to be accomplished by the attribution to
UNHCR of a surrogate protector role comparable to that played by the various
High Commissioners during the League of Nations era,18 supplemented by the
non-derogable agreement of state parties to submit any dispute regarding
interpretation or application of the Refugee Convention to the International
Court of Justice.19 There is moreover potential for the national courts and
tribunals of many state parties to enforce refugee rights directly, and for United
Nations and other human rights bodies to take account of refugee-specific
obligations in the interpretation of generally applicable human rights
obligations.

3.1 Attachment to the Asylum State

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

by the exigencies of the situation, provided that such measures are not inconsistent with their
other obligations under international law and do not involve discrimination solely on the
ground of race, color, sex, language, religion or social origin. No derogation from articles 6,
7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18 may be made under this provision [emphasis
added]”: International Covenant on Civil and Political Rights, 999 UNTS 172 (UNTS
14668), adopted Dec. 16, 1966, entered into force Mar. 23, 1976 (“Civil and Political
Covenant”), at Art. 4(1)–(2). The provision requiring continuing respect for “other obliga-
tions under international law” clearly imports the duty of state parties to the Refugee
Convention to implement their duties under that treaty even when derogation from
Covenant rights is allowed. With regard to the right of derogation under the Civil and
Political Covenant, see UN Human Rights Committee, “General Comment No. 29:
Derogations during a State of Emergency” (2001), UN Doc. HRI/GEN/1/Rev.7, May 12,
2004, at 184.
18
See Chapter 1.3.
19
Convention relating to the Status of Refugees, 189 UNTS 2545 (UNTS 2545), done July 28,
1951, entered into force Apr. 22, 1954 (“Refugee Convention”), at Art. 38. State parties to the
Protocol relating to the Status of Refugees, 606 UNTS 8791 (UNTS 8791), done Jan. 31, 1967,
entered into force Oct. 4, 1967 (“Refugee Protocol”) may, however, enter a reservation to
International Court of Justice jurisdiction with respect to matters arising under the Protocol.
Angola, Botswana, Congo, El Salvador, Ghana, Jamaica, Malawi, Rwanda, St. Vincent and the
Grenadines, Tanzania, and Venezuela have chosen to exercise this option: https://treaties.un
.org/pages/ShowMTDSGDetails.aspx?src=UNTSONLINE&tabid=2&mtdsg_no=
V-5&chapter=5&lang=en, accessed Feb. 1, 2020. But see Chapter 1.5.1 at note 185.
20
As observed by the Supreme Court of the United Kingdom, “[t]he rights that attach to the
status of refugee under the Convention depend in each case on the possession of some
degree of attachment to the contracting State in which asylum is sought . . . An examination
of the Convention shows that it contemplates five levels of attachment to the contracting
states”: R (ST, Eritrea) v. Secretary of State for the Home Department, [2012] UKSC 12 (UK
SC, Mar. 21, 2012), at [21].

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 3.1 at ta ch m en t t o t he a s yl u m s ta te 177

authority. A greater attachment is manifest when the refugee is physically

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

21
But see Chetail, International Migration Law, at 181 (“Albeit attractive, this conceptualiza-
tion of the refugee status as an assimilative process remains an a posteriori and essentially
doctrinal reconstruction”). Chetail’s general concern that the increasingly demanding
requirements following from levels of attachment are not always matched by equally
demanding standards of treatment (ibid. at 182; see Chapters 3.2 and 3.3) is of course
true – no doubt reflecting the fact that the assimilationist goal was not pursued in an
absolutist way but was rather attenuated by considerations of practical and political
viability. It remains, however, that the five levels of attachment plainly reference
a gradual deepening of the connection between the refugee and asylum state.
22
“The Chairman, speaking as the representative of Canada, observed that the question raised
by the initial reception countries did not apply to his country, which was separated by an
ocean from the refugee zones. Thanks to that situation, all refugees immigrating to Canada
were ipso facto legally admitted and enjoyed the recognized rights granted to foreigners
admitted for residence”: Statement of Mr. Chance of Canada, UN Doc. E/AC/32/SR.7, Jan.
23, 1950, at 12.
23
Statement of Mr. Cuvelier of Belgium, ibid.

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 178 3 e n t i t l e m en t u n d e r t h e r e f u g e e co n v e n t i o n

protections of the Refugee Convention.24 Such refugees would not, however,

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

24
“It did not, however, follow that the convention would not apply to persons fleeing from
persecution who asked to enter the territory of the contracting parties . . . [W]hether or not
the refugee was in a regular position, he must not be turned back to a country where his life
or freedom could be threatened [emphasis added]”: Statement of Mr. Henkin of the United
States, UN Doc. E/AC.32/SR.20, Feb. 1, 1950, at 11–12.
25
Refugees affirmatively resettled are, of course, still refugees, requiring governments “to take
into account the legal consequences” of a removal decision: Minister for Immigration and
Border Protection v. Le, [2016] FCAFC 120 (Aus. FFC, Sept. 9, 2016), at [46]. An earlier
decision had sensibly opined that “[i]f the applicant had been assessed by the UNHCR to be
a refugee . . . then Australia, having accepted the applicant for resettlement and as
a contracting party to the Convention, would have to have given regard to whether
Australia’s obligations to the applicant continued under the Convention before it took
any step to return the applicant to Vietnam”: Nguyen v. Minister for Immigration and
Multicultural and Indigenous Affairs, [2004] FCA 757 (Aus. FC, June 17, 2004), at [60].
26
“[T]he problem would be seen more clearly if it were divided into three different aspects:
the first concerned the treatment of refugees before they had reached an understanding
with the authorities of the recipient countries; the second referred to their right to have
their situation regularized and the conditions in which that was to be done; the third dealt
with their rights after they had been lawfully authorized to reside in the country, which
meant, in the case of France, after they were in possession of a residence card and a work
card”: Statement of Mr. Rain of France, UN Doc. E/AC/32/SR.15, Jan. 27, 1950, at 15.
27
See e.g. the remarks of Heydon J. in Plaintiff M70/2011 v. Minister for Immigration and
Citizenship, (2011) 244 CLR 144 (Aus. HC, Aug. 31, 2011), at [215]–[216].
28
UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status (1979, re-
issued 1992 and 2019) (UNHCR, Handbook), at [28].

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 3. 1 at ta ch m e n t t o t he a s y l u m s t ate 179

As Justice Kirby observed in the High Court of Australia, the Refugee

Convention
establishes a process by which a person becomes “recognized” as a refugee.
In using the language of “recognition,” rather than “rendering,” “becom-
ing,” or “constituting,” the [Convention] connotes a process whereby
a person, who already is a refugee, gains “formal recognition” as such
within the country of refuge. Recognition does not render a person
a “refugee.” It simply recognizes the status as one that preceded the
recognition. That is why the process is commonly described as merely
“declaratory.”29
This understanding that refugee status recognition is declaratory has been
explicitly recognized by the Inter-American Court of Human Rights,30 as
well as by several senior national courts.31 It is also codified in the legislation
of the European Union32 and in the national laws of a number of countries.33

29
Minister for Immigration and Multicultural and Indigenous Affairs v. QAAH of 2004, [2006]
HCA 53 (Aus. HC, Nov. 15, 2006), at [96], per Kirby J. (dissenting).
30
“Given the declarative nature of the determination of refugee status . . . the States parties to
the 1951 Convention . . . must recognize this status, based on the respective fair and
competent proceedings”: Pacheco Tineo v. Bolivia, Ser. C No. 272 (IACtHR, Nov. 25,
2013), at [147].
31
“True it is . . . as para. 28 of the Handbook neatly points out, that someone recognised to be
a refugee must by definition have been one before his refugee status has been determined”:
R (Hoxha) v. Special Adjudicator, [2005] 1 WLR 1063 (UK HL, Mar. 10, 2005), at [60];
accord R (ST, Eritrea) v. Secretary of State for the Home Department, [2012] UKSC 12 (UK
SC, Mar. 21, 2012), at [21]. “Under the Refugee Convention, refugee status depends on the
circumstances at the time the inquiry is made; it is not dependent on formal findings”:
Németh v. Canada, [2010] 3 SCR 281 (Can. SC, Nov. 25, 2010), at [50]. “[A] person who
satisfies the conditions of art. 1(A)(2) is a refugee regardless of whether he or she has been
formally recognised as such pursuant to a municipal law process”: YLS v. Refugee and
Protection Officer, [2017] NZCA 582 (NZ CA, Dec. 12, 2017), at [53]. “Every refugee is,
initially, also an asylum applicant; therefore, to protect refugees, asylum applicants must be
treated on the assumption that they may be refugees until their status has been determined.
Without such a rule, the principle of non-refoulement would not provide effective protec-
tion for refugees, because applicants might be rejected at the frontier or otherwise returned
to persecution on the grounds that their claim had not been established”: Kenya National
Commission on Human Rights v. Attorney General, Constitutional Petition No. 227 of 2016
(Ken. HC, Feb. 9, 2017), at [17]; and Cishahayo Saidi v. Minister of Home Affairs, Dec. No.
CCT 107/17 (SA CC, Apr. 24, 2018), at [34].
32
“The recognition of refugee status is a declaratory act”: EU Qualification Directive (2011),
at Preamble, [21]. Indeed, “[t]he fact that being a ‘refugee’ . . . is not dependent on formal
recognition is borne out by the wording of article 21(2) of [the Qualification Directive],
which states that a ‘refugee’ may, in accordance with the conditions laid down . . . be
refouled ‘whether formally recognised or not’”: M v. Czech Republic, X and X v. Belgium,
Dec. Nos. C-391/16, C-77/17, and C-78/17 (CJEU, May 14, 2019), at [90].
33
Law No. 26.165, Art. 2 (Argentina, 2006); Law No. 9.474, Art. 26 (Brazil, 1997); Decree No.
36831-G, Arts. 14 and 107 (Costa Rica, 2011); Refugee and Complementary Protection Act,
Arts. 12, 47 (Mexico, 2011).

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 180 3 en t i t l em e n t u n d er t h e r ef u g ee c o n v e n t i o n

Because persons who are in fact refugees – albeit still awaiting formal status
assessment – are rights holders at international law, genuine refugees would be
fundamentally disadvantaged if their rights were withheld pending status
assessment.34 Put simply, unless status assessment is virtually immediate,
a state party withholding refugee rights pending positive status assessment
would be unable to implement its Refugee Convention obligations in good
faith.35 This dilemma can, however, be easily resolved by granting any person
who claims to be a Convention refugee36 the provisional benefit of those rights
which are not predicated on regularization of status, in line with the
Convention’s own attachment requirements.37 Governments wishing to be
34
This concern was acknowledged by Kiefel J. in the High Court of Australia: Plaintiff M70/
2011 v. Minister for Immigration and Citizenship, (2011) 244 CLR 144 (Aus. HC, Aug. 31,
2011), at [216]. The English Court of Appeal earlier opined in Khaboka v. Secretary of State
for the Home Department, [1993] Imm AR 484 (Eng. CA, Mar. 25, 1993) “that a refugee is
a refugee both before and after his claim for asylum as such may have been considered and
accepted . . . It is common sense and a natural reading of article 31(1). The term ‘refugee’
means what it says. It will include someone who is subsequently established as being
a refugee”: ibid. at 489; affirmed in R v. Navabi, [2005] EWCA Crim 2865 (Eng. CA,
Nov. 11, 2005), at [5]. As observed in Jahangeer, whether a refugee is entitled to particular
rights is a function of the level of attachment which governs access to that right. The court
in this case was clearly anxious that an interpretation that withheld refugee rights until after
status recognition could work a serious injustice, particularly as regards the right in Art.
16(1) of the Refugee Convention to access the courts. “[T]he use of the word ‘refugee’ [in
Art. 16(1)] is apt to include the aspirant, for were that not so, if in fact it had to be
established that he did fall within the definition of ‘refugee’ in article 1, he might find that he
could have no right of audience before the court because the means of establishing his
status would not be available to him so that he could not have access to the courts of this
country on judicial review”: R v. Secretary of State for the Home Department, ex parte
Jahangeer, [1993] Imm AR 564 (Eng. QBD, June 11, 1993), at 566.
35
“The principle of good faith underlies the most fundamental of all norms of treaty law –
namely, the rule pacta sunt servanda . . . Where a third party is called upon to interpret the
treaty, his obligation is to draw inspiration from the good faith that should animate the
parties if they were themselves called upon to seek the meaning of the text which they have
drawn up”: I. Sinclair, The Vienna Convention on the Law of Treaties (1984), at 119–120. To
the same end, Chetail invokes the notion of effectiveness (effet utile), suggesting that
“amongst several possible interpretations the one that best guarantees the practical effect
of the relevant provision shall prevail. Any other interpretation that would exclude asylum
seekers from non-refoulement would defeat the very object and purpose of the [Refugee]
Convention as a whole”: Chetail, International Migration Law, at 188.
36
Indeed, “the wish to apply for asylum does not have to be expressed in any particular form.
It may be expressed by means of a formal application, but also by means of any conduct
which signals clearly the wish of the person concerned to submit an application for
protection”: ND and NT v. Spain, Dec. Nos. 8675/15 and 8697/15 (ECtHR, Feb. 13,
2020), at [180].
37
These include rights which are subject to no level of attachment, rights which inhere in
refugees simply physically present, and – once the requirements for status verification have
been met – rights which are afforded to refugees who are lawfully or habitually present: see
Chapters 3.1.1, 3.1.2, and 3.1.3. More sophisticated rights (those that require lawful stay, or
durable residence: see Chapters 3.1.4 and 3.1.5) need be granted only after affirmative

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 3 .1 a ttachment to the asylum state 181

relieved of this presumptive (if minimalist) responsibility toward persons

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

3.1.1 Subject to a State’s Jurisdiction

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

verification of refugee status. Importantly, all rights provisionally respected can be imme-
diately withdrawn in the event an applicant is found not to be a Convention refugee.
38
Manifestly unfounded claims are “those which are clearly fraudulent or not related to the
criteria for the granting of refugee status laid down in the 1951 United Nations Convention
relating to the Status of Refugees nor to any other criteria justifying the granting of asylum”:
UNHCR Executive Committee Conclusion No. 30, “The Problem of Manifestly
Unfounded or Abusive Applications for Refugee Status or Asylum” (1983), at [(d)].
39
In a decision addressing exclusion from refugee status under Art. 1(F)(b), the High Court
of Australia impliedly endorsed the view that refugee status is to be provisionally presumed
pending the outcome of a status inquiry. Chief Justice Gleeson in a majority judgment
observed that “[w]hatever the operation of the expression ‘admission . . . as a refugee’ in
other systems of municipal law, in Australia there would be nothing to which the language
could apply. It would be necessary to read the words ‘prior to his admission to that country
as a refugee’ as meaning no more than ‘prior to his entry into that country.’ The preferable
solution is to read the reference to ‘admission . . . as a refugee’ as a reference to putative
admission as a refugee”: Minister for Immigration and Multicultural Affairs v. Singh, (2002)
186 ALR 393 (Aus. HC, Mar. 7, 2002). Justice Callinan, in dissent, similarly observed that
“[c]ontrary to a submission made in this court . . . I am of the opinion that the words ‘prior
to his admission to that country as a refugee’ should be understood to mean ‘prior to his
entry into the country in which he seeks or claims the status of a refugee.’ Otherwise the
purpose of the Convention would be subverted in that the nature of the applicant’s prior
criminal conduct could only be explored after he had been accorded refugee status”: ibid.
40
See Refugee Convention, at Arts. 3 (“non-discrimination”), 13 (“movable and immovable
property”), 16(1) (“access to courts”), 20 (“rationing”), 22 (“education”), 29 (“fiscal
charges”), 33 (“prohibition of expulsion or return – ‘refoulement”’), and 34 (“naturaliza-
tion”). No real significance should be given to the fact that the Convention’s provision on
naturalization is not constrained by a level of attachment since, as elaborated below, this
provision really is not the basis for any rights at all, but is more in the nature of non-binding
advice to states: see Chapter 7.4. Certain contextual rights also apply immediately, includ-
ing those set by Arts. 5 (“respect for other rights”), 6 (“exemption from insurmountable

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 182 3 e n t i t l e m en t u n d e r t h e r e f u g e e co n v e n t i o n

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

requirements”), 7(1) (“aliens generally” default), 8 (“exemption from exceptional meas-

ures”), and 12 (“respect for personal status”).
41
See Chapter 2.2. 42 See Chapter 2.2 at note 57. 43 See Chapter 2.3 at note 94 ff.
44
Refugee Convention, at Art. 13. See generally Chapter 4.5.
45
See Chapter 4.5.1, note 1973.
46
Refugee Convention, at Art. 29. See generally Chapter 4.5.2.
47
See Chapter 4.5.2 at note 2054.
48
Refugee Convention, at Art. 16(1). See generally Chapter 4.10.
49
See Chapter 4.10 at note 2793 ff. Taking account of interaction with relevant provisions of
the Civil and Political Covenant, Art. 16(1) of the Refugee Convention may in some
circumstances have relevance also to enabling refugees to access courts to enforce refugee
rights violated extraterritorially: see Chapter 4.10 at note 2812.

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 3 .1 attachment t o t he as ylum s ta te 183

not to stipulate any level of attachment for purposes of access to elementary

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

50
Refugee Convention, at Art. 22. See generally Chapter 4.8.
51
See Chapter 4.8 at note 2506. This approach is not rendered unworkable by virtue of
practical concerns, for example the viability of delivering elementary education immedi-
ately, or while onboard a ship. Even those rights which inhere immediately clearly do so
only on their own terms. As regards public education, for example, refugees need only
receive “the same treatment as is accorded to nationals.” Thus, there is no breach of refugee
law if refugees are subject only to the same delays or constraints in establishing educational
facilities that might apply, for example, to citizens living in a comparably remote area. But
such considerations must be addressed with the same promptness and effectiveness that
would apply in the case of citizens of the state party.
52
Refugee Convention, at Art. 20. See generally Chapter 4.4.1.
53
Refugee Convention, at Art. 3. See generally Chapter 3.4.
54
Refugee Convention, at Art. 33. See generally Chapter 4.1.
55
UNHCR, “Note on International Protection,” UN Doc. A/AC.96/815 (1993), at [11].
56
This foundational principle was not recognized in the early jurisprudence of the European
Court of Human Rights, which seemed to impose liability wherever a state party to the
European Convention on Human Rights had “effective control”: see e.g. Cyprus v. Turkey,
(2001) 35 EHRR 30 (ECtHR [GC], May 10, 2001), at [77]–[78]. In Banković et al. v. Belgium
et al., 11 BHRC 435 (ECtHR [GC], Dec. 12, 2001), at [59], the European Court of Human

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 184 3 e ntitlement under t he refugee c onventi on

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

Rights varied its approach to require evidence of “the same concept of ‘jurisdiction’ which
exists in general international law”: M. Milanovic, Extraterritorial Application of Human
Rights Treaties: Law, Principles, and Policy (2011), at 21. As Milanovic observes, “[t]here is
in principle nothing wrong with the Banković approach to interpreting the notion of state
jurisdiction . . . by reference to general international law . . . I am not arguing that the word
‘jurisdiction’ should be given a special meaning autonomous to human rights law. Rather,
the word has several different and equally ordinary meanings in general international law
itself, and the question is which of those meanings – which of those concepts – the
jurisdiction clauses of human rights treaties refer to”: ibid. at 53. Indeed, the core problem
with the Banković decision was that it erroneously assumed a presumption against extra-
territoriality in public international law’s view of jurisdiction (Banković, at [61]). If,
however, “jurisdiction” is properly understood to require simply a meaningful connection
to the state, the linkage of the notion of jurisdiction in human rights law to the more general
concept in public international law is not only sound, but strategically wise as a means of
enabling continued evolution of the concept. Indeed, as Wilde has observed, “the term has
been understood in the extraterritorial context as a connection between the state, on the
one hand, and either the territory in which the relevant acts took place . . . or the individual
affected by them”: R. Wilde, “The Extraterritorial Application of International Human
Rights Law on Civil and Political Rights,” in S. Sheeran and Sir N. Rodley eds., Routledge
Handbook of International Human Rights Law 635 (2013) (Wilde, “Extraterritorial
Application”), at 641. In recent years, the open-ended language about the meaning of
jurisdiction adopted in the Banković decision has been refined in a way that brings
European regional human rights law to a position on the meaning of jurisdiction that is
both more authentically representative of the true meaning in public international law, and
substantially in line with that adopted by the UN Human Rights Committee and affirmed
by the ICJ: see text at note 62 ff. A less optimistic view of the continuing influence of
Banković is, however, taken in E. Roxstrom and M. Gibney, “Human Rights and State
Jurisdiction,” (2017) 18(2) Human Rights Review 129.
57
Banković et al. v. Belgium et al., 11 BHRC 435 (ECtHR [GC], Dec. 12, 2001), at [59].
A Grand Chamber of the same court recently affirmed that “the concept of ‘jurisdiction’ for
the purposes of Article 1 of the [European] Convention must be considered to reflect the
term’s meaning in public international law . . . Under that law, the existence of a fence
located some distance from the border does not authorise a State to unilaterally exclude,
alter or limit its territorial jurisdiction, which begins at the line forming the border”: ND
and NT v. Spain, Dec. Nos. 8675/15 and 8697/15 (ECtHR, Feb. 13, 2020), at [109].
58
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
[2004] ICJ Rep 136, at [109]; see also Armed Activities on the Territory of the Congo
(Democratic Republic of the Congo v. Uganda), [2005] ICJ Rep 168, at [216] (quoting
Israeli Wall in finding that international human rights law is “applicable ‘in respect of
acts done by a State in the exercise of its jurisdiction outside its own territory’”).
59
For reasons set out in Chapter 2.2 at note 88, it is appropriate to seek guidance in the
approach taken by international human rights law – expressly part of the Convention’s
context by virtue of its Preamble, and an appropriate touchstone in view of the holdings of
leading courts that the object and purpose of refugee law is to provide for the surrogate or
substitute protection of human rights.

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 3 .1 attachment t o t he as ylum s ta te 185

rights . . . to anyone within the power or effective control of the [state], even if
not situated within the territory of the [state].”60 The ICJ has similarly deter-
mined that duties under the Racial Discrimination Convention – which are
subject to no territorial limitation (and are thus akin to those Refugee
Convention duties which are subject to no level of attachment) – “appear to
apply, like other provisions of instruments of that nature, to the actions of
a State party when it acts beyond its territory.”61
Recent jurisprudence suggests at least three situations in which refugees
outside a state’s territory are under its jurisdiction and hence entitled to claim
the benefit of Convention rights subject to no level of attachment.62
First, a refugee is under a state party’s jurisdiction if located in
a territory over which that state exercises effective control, most notably
by way of military occupation.63 The jurisdictional obligations of the
occupying state stem from de facto control alone;64 lawfulness is not
60
UN Human Rights Committee, “General Comment No. 31: The Nature of the General
Legal Obligation Imposed on States Parties to the Covenant” (2004), UN Doc. HRI/GEN/1/
Rev.7, at [10]. See also UN Committee against Torture, “General Comment No. 2:
Implementation of Article 2 by States Parties” (2008), UN Doc. CAT/c/GC/2, at [16]. See
generally Wilde, “Extraterritorial Application.”
61
Case Concerning Application of the International Convention on the Elimination of All
Forms of Racial Discrimination, Order on the Indication of Provisional Measures (Georgia
v. Russian Federation), [2008] ICJ Rep 353, at [109]. The general agreement among
international and regional tribunals on this point is described in A. Klug and T. Howe,
“The Concept of State Jurisdiction and the Applicability of the Non-refoulement Principle
to Extraterritorial Interception Measures,” in B. Ryan and V. Mitsilegas eds.,
Extraterritorial Immigration Control: Legal Challenges 69 (2010), at 75–91.
62
The analysis that follows is in large measure an updated version of that first presented in
T. Gammeltoft-Hansen and J. Hathaway, “Non-refoulement in a World of Cooperative
Deterrence,” (2015) 53(2) Columbia Journal of Transnational Law 235, at 257 ff.
63
Banković et al. v. Belgium et al., 11 BHRC 435 (ECtHR [GC], Dec. 12, 2011), at [71]; Armed
Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda),
[2005] ICJ Rep 168, at [179]. For other cases involving effective control over territory, see
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
[2004] ICJ Rep 136, at [102]–[114]; Loizidou v. Turkey, 23 EHRR 513 (ECtHR [GC], Dec.
18, 1996); Coard v. United States, Case 10.951, Report 109/99 (IAComHR, Sept. 29, 1999);
Salas et al. v. United States, Case 10.573, Report 31/93 (IAComHR, Oct. 4, 1993). Indeed,
the notion of jurisdiction based on “effective control” has been held to encompass situ-
ations in which extraterritorial environmental harm is caused by a state failing to take steps
to prevent the precipitating actions within its own territory: Advisory Opinion on the
Environment and Human Rights (Advisory Opinion OC-23/17), Ser. A) No. 23 (IACtHR,
Nov. 15, 2017), at [81]–[82], [93].
64
Y. Dinstein, The International Law of Belligerent Occupation (2009) (Dinstein, Belligerent
Occupation), at 35. Indeed, “[a]djudicative and quasi-adjudicative bodies have applied this
territorial principle to other scenarios that fall short of full occupation but still involve de
facto control – lawful or unlawful – of some physical domain within the borders of another
State . . . This includes application to peacekeepers, who are assigned to a particular
territory but remain the responsibility of the troop-contributing State to the extent that
the nationality State has the ability to ensure that its troops respect the rights of the local

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 186 3 en t i t l emen t un der t he refu gee c onvention

required.65 What matters is that the state is adjudged to exercise overall

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

populace”: B. Van Schaack, “The United States: Position on the Extraterritorial Application
of Human Rights Obligations: Now is the Time for Change,” (2014) 90 International Law
Studies 20, at 38.
65
As is also the case under the Fourth Geneva Convention, the lawfulness of such military
operations is in principle irrelevant to the obligations imposed on the occupying power. See
Geneva Convention relative to the Protection of Civilian Persons in Time of War, 75 UNTS
287 (UNTS 973), done Aug. 12, 1949, entered into force Oct. 21, 1950, at Art. 2; Hirsi Jamaa
v. Italy, (2012) 55 EHRR 21 (ECtHR [GC], Feb. 23, 2012), at [97] (noting that “responsibil-
ity of a Contracting Party may also arise when as a consequence of military action –
whether lawful or unlawful – it exercises effective control of an area outside its national
territory”).
66
Dinstein, Belligerent Occupation, at 38. The Supreme Court of the United States was thus
correct to find US jurisdiction on the grounds that “Guantanamo Bay is in every practical
respect a United States territory”: Rasul v. Bush, 124 S. Ct. 2686 (US SC, June 28, 2004), at
2700 (per Kennedy J. concurring).
67
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
[2004] ICJ Rep 136, at [110], quoting “Concluding Observations of the Human Rights
Committee: Israel,” UN Doc. CCPR/CO/78/ISR, Aug. 5, 2003, at [11].
68
Cyprus v. Turkey, (2001) 35 EHRR 30 (ECtHR [GC], May 10, 2001), at [77].
69
Issa et al. v. Turkey, (2004) 41 EHRR 567 (ECtHR, Nov. 16, 2004), at [71].
70
For example, in the context of a human rights claim by two Afghan refugee claimants who
had escaped Australia’s Woomera Detention Center and entered the British Consulate in
Melbourne where they “were told that while they were in the Consulate they would be kept
safe,” the English Court of Appeal determined that it was “content to assume (without
reaching a positive conclusion on the point) that while in the Consulate the applicants were
sufficiently within the control of the consular staff to be subject to the [international human
rights] jurisdiction of the United Kingdom”: R (B) v. Secretary of State for Foreign and
Commonwealth Affairs, [2004] EWCA Civ 1344 (Eng. CA, Oct. 18, 2004), at [66]. The
Court noted the decision in WM v. Denmark, (1992) 73 DR 193 (EComHR, Oct. 14, 1992)

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 3. 1 at ta ch m e nt t o t he a s yl u m s ta te 187

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

in which a citizen of the German Democratic Republic inside the Danish Embassy was
determined to be under Danish jurisdiction for human rights purposes: ibid. at [64]–[66].
71
Medvedyev et al. v. France, (2010) 51 EHRR 39 (ECtHR [GC], Mar. 29, 2010), at [65];
Banković et al. v. Belgium et al., 11 BHRC 435 (ECtHR [GC], Dec. 12, 2011), at [73]. See
generally WM v. Denmark, (1992) 73 DR 193 (EComHR, Oct. 14, 1992); W v. Ireland,
[1983] ECHR 17 (EComHR, Feb. 28, 1983); X v. United Kingdom, (1977) 12 DR 73
(EComHR, Dec. 15, 1977); X v. Federal Republic of Germany, Application No. 1611/62
(EComHR, Sept. 25, 1965); Al-Jedda v. United Kingdom, (2011) 53 EHRR 23 (ECtHR [GC],
July 7, 2011); Al-Saadoon and Mufdhi v. United Kingdom, (2010) 51 EHRR 9 (ECtHR, Mar.
2, 2010), at [19].
72
See Al-Saadoon and Mufdhi v. United Kingdom, (2010) 51 EHRR 9 (ECtHR, Mar. 2, 2010),
at [19]; Al-Skeini et al. v. Secretary of State for Defense, [2007] UKHL 26 (UK HL, June 17,
2007), at [25]; Hess v. United Kingdom, (1975) 2 DR 72 (EComHR, May 28, 1975); Hassan
v. United Kingdom, [2014] ECHR 1145 (ECtHR [GC], Sept. 16, 2014), at [78].
73
Al-Skeini et al. v. United Kingdom, (2011) 53 EHRR 18 (ECtHR [GC], July 7, 2011), at [136];
Medvedyev v. France, (2010) 51 EHRR 39 (ECtHR [GC], Mar. 29, 2010), at [65].
74
See e.g. Ramirez v. France, (1996) 86-B DR 155 (EComHR, June 24, 1996), at 162; Reinette
v. France, (1989) 63 DR 189 (EComHR, Oct. 2, 1989), at [2]; Freda v. Italy, (1980) 21 DR
250 (EComHR, Oct. 7, 1980), at 256; Öcalan v. Turkey, [2005] ECHR 282 (ECtHR [GC],
May 12, 2005), at [93]; Stocke v. Germany, (1991) 13 EHRR 839 (ECtHR, Mar. 19, 1991);
Casariego v. Uruguay, HRC Comm. No. 56/1979, UN Doc. CCPR/C/13/D/56/1979,
decided July 29, 1981, at [10.3]; Burgos v. Uruguay, HRC Comm. No. 52/1979, UN Doc.
CCPR/C/13/D/52/1979, decided July 29, 1981, at [12.3].
75
Burgos v. Uruguay, HRC Comm. No. 52/1979, UN Doc. CCPR/C/13/D/52/1979, decided
July 29, 1981, at [12.3]; see also Issa et al. v. Turkey, (2004) 41 EHRR 567 (ECtHR, Nov. 16,
2004), at [71].
76
Al-Skeini et al. v. United Kingdom, (2011) 53 EHRR 18 (ECtHR [GC], July 7, 2011), at [136].
Most cases to date have involved situations of full physical custody by way of arrest or
kidnapping. In Al-Saadoon, for example, the Court emphasized “the total and exclusive”
control exercised by the United Kingdom over the military bases in Iraq: Al-Saadoon and
Mufdhi v. United Kingdom, (2010) 51 EHRR 9 (ECtHR, Mar. 2, 2010), at [88].

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 188 3 e n t i t l e m e n t u n d e r t h e r e f u g e e co n v e n t i o n

Similarly, in the Marine I case,77 the UN Committee Against Torture was

called upon to consider Spain’s human rights liability stemming from the
rescue of some 369 Asians and Africans in waters off the West African coast.
After boarding the Marine I to provide emergency healthcare, Spanish author-
ities towed the vessel to the Mauritanian port of Nouadhibou where the
passengers were disembarked and placed at a former fishing plant under
Spanish authority. Most were repatriated, though twenty-three persons who
resisted repatriation remained at the fishing plant guarded by Spanish security
forces for five months under conditions alleged to be rights-violative. The
Committee Against Torture concluded that Spain exercised jurisdiction both
during the interception and throughout the detention in Mauritania, noting
that:
[J]urisdiction must also include situations where a State party exercises,
directly or indirectly, de facto or de jure control over persons in
detention . . . In the present case . . . the State party maintained control
over the persons on board the Marine I from the time the vessel was
rescued and throughout the identification and repatriation process that
took place at Nouadhibou. In particular, the State party exercised, by
virtue of a diplomatic agreement concluded with Mauritania, constant
de facto control over the alleged victims during their detention in
Nouadhibou. Consequently, the Committee considers that the alleged
victims are subject to Spanish jurisdiction insofar as the complaint that
forms the subject of the present communication is concerned.78
Beyond its value as a clear affirmation that an intercepting state retains
jurisdiction even when its control over persons is exercised on the territory
of another country, the Marine I case makes a more general point that
jurisdiction can be established under the control or authority principle where
detention is effected on an indirect basis:
[T]he jurisdiction of a State party refers to any territory in which it exercises,
directly or indirectly, in whole or in part, de jure or de facto effective control,
in accordance with international law. In particular . . . such jurisdiction must
also include situations where a State party exercises, directly or indirectly, de
facto or de jure control over persons in detention.79

77
JHA v. Spain, CAT Comm. No. 323/2007, UN Doc. CAT/C/41/D/323/2007, decided Nov.
11, 2008.
78
Ibid. at [8.2]. The case was nonetheless declared inadmissible because the complainant was
not expressly authorized to act on behalf of the victims. The Committee affirmed this
understanding of jurisdiction in Sonko v. Spain, CAT Comm. No. 368/2008, UN Doc.
CAT/C/47/D/368/2008, decided Nov. 25, 2011, at [10.3] (finding that jurisdiction was
exercised by the Spanish Civil Guard in relation to four swimmers who were intercepted
along the coast between Belionex and Benzú and later (unilaterally) forced off the officials’
vessel in Moroccan territorial waters).
79
Ibid.

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 3.1 at t a c h m e n t t o t h e a s y l u m s t a t e 189

Third – assuming there is neither territorial nor personal control – recent

case law suggests that a refugee is under a state party’s jurisdiction if located in
a territory where that state exercises relevant public powers abroad. In Al-
Skeini,80 the key question was whether the United Kingdom had jurisdiction
over civilians killed in the course of security operations by British soldiers in
Basrah. Rather than determining the issue of responsibility simply by reference
to either territorial or personal control, the European Court of Human Rights
instead observed that:
[T]he Court has recognised the exercise of extraterritorial jurisdiction by
a Contracting State when, through the consent, invitation or acquiescence
of the Government of that territory, it exercises all or some of the public
powers normally to be exercised by that Government . . . Thus where, in
accordance with custom, treaty or other agreement, authorities of the
Contracting State carry out executive or judicial functions on the territory
of another State, the Contracting State may be responsible for breaches of
[international law] thereby incurred, as long as the acts in question are
attributable to it rather than to the territorial State.81
In other words, where states are entitled to exercise public powers abroad,
jurisdiction for human rights purposes will follow under certain
circumstances.82 This point was made particularly clearly by the Court in
a case involving an eighteen-year-old Moldovan killed at a peacekeeping
security checkpoint under Russian command:
[I]n certain circumstances, the use of force by a State’s agents operating
outside its territory may bring the individual thereby brought under the
control of the State’s authorities into the State’s Article 1 jurisdiction . . .
This may include the exercise of extra-territorial jurisdiction by
a Contracting State when, in accordance with custom, treaty or other
agreement, its authorities carry out executive functions on the territory of
another State . . . In the present case, the checkpoint in question, situated
in the security zone, was manned and commanded by Russian soldiers in
accordance with the agreement putting an end to the military conflict in the
Transdniestrian region of Moldova . . . Against this background, the Court
80
Al-Skeini et al. v. United Kingdom, (2011) 53 EHRR 18 (ECtHR [GC], July 7, 2011), at [102],
[130]–[150].
81
Ibid. at [135].
82
The European Court of Human Rights affirmed the “public powers” approach to jurisdic-
tion in Jaloud v. Netherlands, [2014] ECHR 1292 (ECtHR [GC], Nov. 20, 2014), at [145].
While there are aspects of the Jaloud decision that suggest that jurisdiction was anchored in
personal control over the individuals at the checkpoint (see A. Sari, “Jaloud v. Netherlands:
New Directions in Extra-Territorial Military Operations,” www.ejiltalk.org, Nov. 24, 2014),
the Court emphasized that the conduct in question was attributable to the state [151],
[154]–[155] and that the state’s actions taken were pursuant to various memoranda of
understanding [146]–[147], factors that are consistent with the public powers approach to
jurisdiction.

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 190 3 en t i t l e m e n t u n d er t h e r ef u g ee c o n v e n t i o n

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

83
Pisari v. Republic of Moldova and Russia, [2015] ECHR 403 (ECtHR, Apr. 21, 2015), at [33].
84
Ibid. at [139], quoting Al-Skeini et al. v. United Kingdom, (2011) 53 EHRR 18 (ECtHR
[GC], July 7, 2011), at [135].
85
See Jaloud v. Netherlands, [2014] ECHR 1292 (ECtHR [GC], Nov. 20, 2014), at [146]–[147]
(noting that “[t]he practical elaboration of the multinational force was shaped by a network
of Memoranda of Understanding defining the interrelations between the various armed
contingents present in Iraq”).
86
Ibid. at [139], quoting Al-Skeini et al. v. United Kingdom, (2011) 53 EHRR 18 (ECtHR
[GC], July 7, 2011), at [135].
87
Ibid. at [139], [143]–[148], quoting Al-Skeini et al. v. United Kingdom, (2011) 53 EHRR 18
(ECtHR [GC], July 7, 2011), at [130]–[139].
88
As Emmerich de Vattel noted in The Law of Nations, every sovereign nation retains
the power, as inherent in sovereignty, and essential to self-preservation, to forbid the
entrance of foreigners within its dominions or to admit them only in such cases or
upon such conditions as it may see fit to prescribe: E. de Vattel, 2 The Law of Nations
(1883), at §§ 94, 100. State practice confirms this principle: see e.g. Sale, Acting
Commissioner, Immigration and Naturalization Service, et al., Petitioners v. Haitian
Centers Council, Inc., et al., 509 US 155 (US SC, Jan. 12, 1993), at 199; R v.
Immigration Officer at Prague Airport et al., ex parte European Roma Rights Centre
et al., [2004] UKHL 55 (UK HL, Dec. 9, 2004), at [45].
89
Al-Skeini et al. v. United Kingdom, (2011) 53 EHRR 18 (ECtHR [GC], July 7, 2011), at [135].

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 3 .1 attachm ent t o the as ylum s tate 191

enforcement.90 But under general principles of international law, conduct is also

attributable to a state where private actors or third state authorities act under its
direction and control,91 or where effective control is retained over officials, includ-
ing those carrying out migration control as part of an international organization.92
Assuming, then, that jurisdiction can be established when a state exercises
effective control over territory, authority over individuals, or undertakes public
powers abroad, what of the situation in which more than one state can be said
simultaneously to have jurisdiction? Effective control over territory is normally
exclusive, but neither authority over individuals nor the exercise of public
powers necessarily preempts the simultaneous jurisdiction of a territorial or
cooperating state. Can the state acting extraterritorially be held to exercise
jurisdiction in the case of such non-exclusivity?
The traditional view in human rights law that only a single state can be said
to exercise jurisdiction in a given context93 has been largely rejected, with
human rights law now more closely aligned with the dominant position in
public international law that two or more states may simultaneously exercise
jurisdiction and hence be simultaneously responsible.94 In other words, the
fact that several states have jurisdiction does not diminish the individual
responsibility of any particular state.95
90
This was the case, for example, in Pisari v. Republic of Moldova and Russia, [2015] ECHR
403 (ECtHR, Apr. 21, 2015), where the relevant actions were taken by “peacekeeping
military forces belonging to the Russian Federation”: ibid. at [9].
91
See Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. US), [1986]
ICJ Rep 14; “Draft Articles on Responsibility of States for Internationally Wrongful Acts,”
UN Doc. A/56/10, Ch. IV.E.1, adopted Nov. 2001 (International Law Commission, “Draft
Articles”), at Arts. 8, 17. See generally J. Crawford, State Responsibility: The General Part
(2013) (Crawford, State Responsibility), at 126–132, 146–161.
92
See Al-Jedda v. United Kingdom, (2011) 53 EHRR 23 (ECtHR [GC], July 7, 2011), at [80];
International Law Commission, “Draft Articles on the Responsibility of International
Organizations,” [2011] United Nations Juridical Yearbook 393, at Art. 7; Crawford, State
Responsibility, at 422–434.
93
If only one state could exercise jurisdiction, this would make shared responsibility for the
breach of human rights obligations implausible. See e.g. Hess v. United Kingdom, (1975) 2
DR 72 (EComHR, May 28, 1975).
94
International Law Commission, “Draft Articles,” at Art. 47; Crawford, State Responsibility,
at 325–328, 333–334.
95
International Law Commission, “Draft Articles,” at Art. 47(1); Crawford, State
Responsibility, at 333–334. See generally T. Gammeltoft-Hansen, Access to Asylum:
International Refugee Law and the Globalisation of Migration Control (2011), at 100–208.
This bedrock principle of public international law can be seen, for example, in the
reasoning of the ICJ in the Certain Phosphate Lands case, in which the Court rejected the
Australian argument that a finding of individuated liability against it was foreclosed by
the fact that its trusteeship of Nauru was shared with New Zealand and the United
Kingdom. “Australia has raised the question whether the liability of the three States
would be ‘joint and several’ (solidaire), so that any one of the three would be liable to
make full reparation for damage flowing from any breach of the obligations of the
Administering Authority, and not merely a one-third or some other proportionate share.

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 192 3 e ntitlement under t he refugee c onvention

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

This . . . is independent of the question whether Australia can be sued alone. The Court
does not consider that any reason has been shown why a claim brought against only one of
the three States should be declared inadmissible in limine litis merely because that claim
raises questions of the administration of the Territory, which was shared with two other
States. It cannot be denied that Australia had obligations under the Trusteeship Agreement,
in its capacity as one of the three States forming the Administering Authority, and there is
nothing in the character of that Agreement which debars the Court from considering
a claim of a breach of those obligations by Australia”: Case Concerning Certain Phosphate
Lands in Nauru (Nauru v. Australia), [1992] ICJ Rep 240, at [48].
96
Al-Skeini et al. v. United Kingdom, (2011) 53 EHRR 18 (ECtHR [GC], July 7, 2011), at [137];
Hirsi Jamaa v. Italy, (2012) 55 EHRR 21 (ECtHR [GC], Feb. 23, 2012), at [74].
97
Ilaşcu et al. v. Moldova and Russia, (2005) 40 EHRR 46 (ECtHR [GC], July 8, 2004), at
[376]–[394]; see also Drozd and Janousek v. France and Spain, (1992) 14 EHRR 745
(ECtHR, June 26, 1992), at [91]–[96].
98
Jaloud v. Netherlands, [2014] ECHR 1292 (ECtHR [GC], Nov. 20, 2014), at [143].
99
MSS v. Belgium and Greece, (2011) 53 EHRR 28 (ECtHR [GC], Jan. 21, 2011).

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 3. 1 at ta ch m e nt t o t he a s yl u m s ta te 193

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

3.1.2 Physical Presence

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

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 194 3 en t i t l em e n t u n d er t h e r ef u g ee c o n v e n t i o n

refugee physically present, lawfully or unlawfully, in territory under a state’s

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

Court of Justice: ND and NT v. Spain, Dec. Nos. 8675/15 and 8697/15 (ECtHR, Feb. 13,
2020), at [183].
104
But see Minister for Immigration and Multicultural Affairs v. Khawar, [2002] HCA 14 (Aus.
HC, Apr. 11, 2002), per Justices McHugh and Gummow: “Nor does the Convention specify
what constitutes entry into the territory of a contracting state so as then to be in a position to
have the benefits conferred by the Convention. Rather, the protection obligations imposed by
the Convention upon contracting states concern the status and civil rights to be afforded
refugees who are within the contracting states.” While somewhat unclear, the passage might
be read to suggest that rights which inhere upon mere presence in a state may be withheld on
the basis that, as a matter of law, the state has determined the person not to have formally
entered its territory. Such an approach would confuse mere physical presence with lawful
presence (see Chapter 3.1.3). The fact that the drafters did not elaborate the meaning of “in” or
“within” a state’s territory simply confirms the self-evident plain meaning of those terms, i.e.
physical presence in the territory of the state in question.
105
See G. Stenberg, Non-expulsion and Non-refoulement (1989), at 87: “The statement that
a person is present in the territory of a State indicates that he is physically within its
borders.”
106
Mr. Larsen of Denmark persuaded the Ad Hoc Committee to draw up “a number of fairly
simple rules for the treatment of refugees not yet authorized to reside in a country”:
Statement of Mr. Larsen of Denmark, UN Doc. E/AC.32/SR.15, Jan. 27, 1950, at 22. To
similar effect, the representative of the International Refugee Organization stressed the
importance of including in the Convention “provisions concerning refugees who had not
yet been regularly admitted”: ibid. at 18.
107
Ibid. at 18. The Danish representative similarly distinguished between “refugees regularly
resident” and “those . . . who had just arrived in the initial reception country”: Statement
of Mr. Larsen of Denmark, UN Doc. E/AC.32/SR.16, Jan. 30, 1950, at 11.
108
The interpretation of the Refugee Convention as granting rights even prior to formal
verification of status is buttressed by the specific incorporation of Art. 9 in the Refugee
Convention, which allows governments provisionally to suspend the rights of persons not
yet confirmed to be refugees if the asylum state is faced with war or other exceptional
circumstances. It follows from the inclusion of this provision in the Convention that,
absent such extreme circumstances, states must honor Convention rights pending verifi-
cation of status. See generally Chapter 3.5.1.
109
See e.g. UNHCR Executive Committee Conclusion No. 97, “Conclusion on Protection
Safeguards in Interception Measures” (2003), at [(a)(i)]: “The State within whose sover-
eign territory, or territorial waters, interception takes place has the primary responsibility
for addressing any protection needs of intercepted persons.”

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 3. 1 at ta ch m e nt t o t he a s yl u m s ta te 195

islets, rocks, and reefs; it includes also those in the airspace above each of
these.110 As a matter of international refugee law, therefore, Australia’s decision
to excise thousands of its islands,111 and ultimately the entirety of Australia,112
from its so-called “migration zone” was of no force or effect: any refugee present
in an excised place remains in Australian territory and thus entitled to rights
owed to refugees physically present. Similarly, the US policy of refusing to
protect Cuban refugees deemed “wet foot” arrivals113 – including in one instance
fifteen refugees found clinging to an old Key West bridge no longer connected to
land114 – is patently unlawful, as such refugees are clearly within the US
territorial sea and therefore physically present in the United States.
A state’s territory moreover includes both its ports of entry115 and so-called
“international zones” within a state’s territory.116 As recently affirmed by
a Grand Chamber of the European Court of Human Rights,
the special nature of the context as regards migration cannot justify an area
outside the law where individuals are covered by no legal system capable of
affording them enjoyment of the rights and guarantees protected by the
Convention which the States have undertaken to secure to everyone within
their jurisdiction.117
To the extent that a state acquires additional territory by accretion, cession,
conquest, occupation, or prescription,118 it is also bound to honor rights that
apply at this second level of attachment in such territory.

110
J. Crawford, Brownlie’s Principles of Public International Law (2012) (Crawford, Brownlie’s
Public International Law), at 203.
111
A. Vogl, “Over the Borderline: A Critical Inquiry into the Geography of Territorial
Excision and the Securitisation of the Australian Border,” (2015) 38(1) University of
New South Wales Law Journal 114, at 126.
112
O. White, “Australia: Removing a Country from the Migration Zone,” May 27, 2013,
https://jrs.org.au/australia-removing-a-country-from-the-migration-zone/, accessed Feb.
1, 2020.
113
R. E. Wasem, “Cuban Migration to the United States: Policy and Trends,” Congressional
Research Service, June 2, 2009, at 16–17.
114
D. Fears, “Immigration Issue Threatens GOP’s Florida Stronghold; Cuban Americans
Angry Over ‘Wet Foot’ Policy,” Washington Post, Feb. 17, 2006.
115
G. Goodwin-Gill and J. McAdam, The Refugee in International Law (2007) (Goodwin-Gill
and McAdam, Refugee in International Law), at 207.
116
Amuur v. France, [1996] ECHR 25 (ECtHR, June 25, 1996).
117
ND and NT v. Spain, Dec. Nos. 8675/15 and 8697/15 (ECtHR, Feb. 13, 2020), at [110].
118
See generally M. Shaw, International Law (2014), at 358–376. The Supreme Court of the
United Kingdom thus sensibly concluded that “the Refugee Convention continues to
apply to the [unceded Sovereign Base Authority areas of Cyprus] . . . in the same way as it
applied to the whole colony of Cyprus before 1960 . . . The United Kingdom is, as a matter
of international law, bound by the Convention and Protocol as such”: R (Tag Eldin Bashir)
v. Secretary of State for the Home Department, [2018] UKSC 45 (UK SC, July 30, 2018), at
[71]–[72].

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 196 3 en t i t l em e n t u n d er t h e r ef u g ee c o n v e n t i o n

A state is not, however, required to grant rights defined by this level of

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

3.1.3 Lawful or Habitual Presence

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

119
Vienna Convention on Diplomatic Relations, 500 UNTS 95 (UNTS 7310), done Apr. 18,
1961, entered into force Apr. 24, 1964, at Art. 22.
120
Asylum Case (Colombia v. Peru), [1950] ICJ Rep 266. The reference to “special arrange-
ments” in the Vienna Convention on Diplomatic Relations, at Art. 41, has however been
said to “allow[] for bilateral recognition of the right to give asylum to political refugees
within the mission”: Crawford, Brownlie’s Public International Law, at 403. The traditional
practice of Latin American states to honor a grant of diplomatic asylum is codified in the
Caracas Convention on Diplomatic Asylum, OAS Doc. OEA/Ser.X/1, entered into force
Dec. 29, 1954.
121
If the “refugees” in question are nationals of the territorial state, they have no entitlement
to refugee rights as they will not have satisfied the alienage requirement of the Convention
refugee definition. See generally A. Grahl-Madsen, The Status of Refugees in International
Law (vol. I, 1966) (Grahl-Madsen, Status of Refugees I), at 150–154; J. Hathaway and
M. Foster, The Law of Refugee Status (2014) (Hathaway and Foster, Refugee Status), at
17–23; and Goodwin-Gill and McAdam, Refugee in International Law, at 63. A more
interesting question arises with regard to third-country nationals who arrive at a consulate
or embassy. To the extent that consular or embassy officials have jurisdiction over such
persons in line with norms of customary international law (see Chapter 3.1.1 at note 70),
the state in whose consulate or embassy the refugee is located is logically bound to respect
those rights not subject to territorial or a higher level of attachment (including, for
example, the duty of non-refoulement). It would, in this sense, exercise jurisdiction
concurrently with the territorial state. Yet only the territorial state would be bound to
honor those rights which require physical presence in a state’s territory, or a higher level of
attachment. See R (B) v. Secretary of State for Foreign and Commonwealth Affairs, [2004]
EWCA Civ 1344 (Eng. CA, Oct. 18, 2004), at [88], finding that in the case of Afghan
refugee claimants at risk of torture who escaped Australian detention and entered the
British Consulate in Melbourne, “international law must surely permit the officials . . . to
do all that is reasonably possible, including allowing the victim to take refuge in the
diplomatic premises . . . In such circumstances, the [European Convention on Human
Rights] may well impose a duty on a Contracting State to afford diplomatic asylum.”

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 3. 1 at ta ch m e n t t o t he a s y l u m s t ate 197

Lawful presence entitles refugees to be protected against expulsion, enjoy

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

122
See Refugee Convention, at Arts. 18 (“self-employment”), 26 (“freedom of movement”),
and 32 (“expulsion”).
123
The French representative described this level of attachment as “a very wide term applic-
able to any refugee, whatever his origin or situation. It was therefore a term having a very
broad meaning”: Statement of Mr. Juvigny of France, UN Doc. E/AC.32/SR.42, Aug. 24,
1950, at 12. Indeed, the equally authoritative French language text of Arts. 18, 26, and 32
speaks to “un réfugié se trouvant régulièrement sur leur territoire,” the ordinary meaning
of which signifies a refugee whose presence is in some sense officially authorized or
accepted, but not predicated on having a formal legal status.
124
Robinson, for example, concludes that “the mere fact of lawfully being in the territory,
even without any intention of permanence, must suffice”: N. Robinson, Convention
relating to the Status of Refugees: Its History, Contents and Interpretation (1953)
(Robinson, History), at 117. Weis opines that “physical presence, even on a temporary
stay or visit, [is] sufficient”: P. Weis, The Refugee Convention, 1951: The Travaux
Préparatoires Analysed with a Commentary by Dr. Paul Weis (posthumously pub’d.,
1995) (Weis, Travaux), at 152.
125
“Mr. Guerreiro (Brazil) asked whether the phrase ‘refugees lawfully in their territory’
was intended to cover refugees in transit through a territory . . . Mr. Henkin (United
States of America) explained that the provisions . . . were really intended to apply to
all refugees lawfully in the country, even those who were not permanent residents.
There was no harm in the provision even if it theoretically applied to refugees who
were in a country for a brief sojourn, since the individuals would hardly seek the
benefit of the rights contemplated”: Statements of Mr. Guerreiro of Brazil and
Mr. Henkin of the United States, UN Doc. E/AC.32/SR.25, Feb. 10, 1950, at 5. See
also Statement of Mr. Herment of Belgium, UN Doc. E/AC.32/SR.42, Aug. 24, 1950,
at 17, that rights allocated at this second level of attachment would accrue to
refugees “merely passing through a territory.”
126
“The expression ‘lawfully in their territory’ included persons entering a territory even for
a few hours, provided that they had been duly authorized to enter”: Statement of
Mr. Henkin of the United States, UN Doc. E/AC.32/SR.41, Aug. 23, 1950, at 14; see also
Statements of Mr. Henkin of the United States at UN Doc. E/AC.32/SR.42, Aug. 24, 1950,
at 20 and 32.
127
“The difficulties raised were . . . not academic, at least in the case of refugees living near
a frontier”: Statement of the Chairman, Mr. Larsen of Denmark, UN Doc. E/AC.32/SR.41,
Aug. 23, 1950, at 18. For example, it was suggested that the rights granted to refugees
lawfully present in a state would accrue even to “a [refugee] musician [who] was staying

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 198 3 e ntitlement under t he refugee c onventi on

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

for one or two nights in a country”: Statement of the Chairman, Mr. Larsen of Denmark,
UN Doc. E/AC.32/SR.42, Aug. 24, 1950, at 16–17.
128
Statement of Mr. Juvigny of France, UN Doc. E/AC.32/SR.42, Aug. 24, 1950, at 20. “For
example, there were aliens lawfully in France without being resident. As evidence of that
he mentioned the case of Belgian nationals, who needed only an identity card to spend
a few hours in France. They would be in France lawfully, even though not resident”: ibid.
But see Plaintiff M47/2012 v. Director-General of Security, [2012] HCA 46 (Aus. HC, Oct.
5, 2012) in which the High Court of Australia determined that a Sri Lankan Tamil
admitted to Australian territory on Christmas Island on the basis of a “special purpose
visa” that expired fifty minutes after his arrival was not “lawfully present” upon arrival at
Christmas Island. Justice Heydon was emphatic that “[t]he fact that he arrived with a visa
which quickly expired does not alter the fact that he has not been lawfully in Australia”: id.
at [293]. This counterfactual conclusion is at odds with both the drafting history of the
Refugee Convention and earlier Australian precedent: see e.g. Rajendran v. Minister for
Immigration and Multicultural Affairs, (1998) 166 ALR 619 (Aus. FFC, Sept. 4, 1998).
129
The French description of the three phases through which a refugee passes distinguished
the second step of “regularization” of status from the third and final stage at which “they
had been lawfully authorized to reside in the country”: Statement of Mr. Rain of France,
UN Doc. E/AC.32/SR.15, Jan. 27, 1950, at 15.
130
Ibid. at 20.
131
Statement of Mr. Henkin of the United States, ibid. at 20. The inappropriateness of the
equation of a “lawful presence” with admission to permanent residence was explicitly
confirmed at the Conference of Plenipotentiaries by its President, who expressed the view
that “such a suggestion would probably cover the situation in the United States of
America, where there were [only] two categories of entrants, those legally admitted and
those who had entered clandestinely. But it might not cover the situation in other
countries where there were a number of intermediate stages; for example, certain coun-
tries allowed refugees to remain in their territory for a limited time”: Statement of the
President, Mr. Larsen of Denmark, UN Doc. A/CONF.2/SR.14, July 10, 1951, at 17. The
only response to this clarification was an assertion by the representative of the United
States that his country’s system was not quite as simple as the President had implied. No
delegate, however, challenged the accuracy of the President’s understanding of “lawful
presence” as including refugees subject to the various “intermediate stages” which
a country might establish for refugees coming directly to its territory.

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 3.1 at t a c h m e n t t o t h e as y l u m st a t e 199

his or her entitlement to refugee status – in particular, details of personal and

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

132
Consistent with the duty of states to implement their international legal obligations in
good faith (see Chapter 2.3 at note 129), it must be possible for all Convention refugees to
fulfill any such requirements. Excluded, therefore, are any requirements that are directed
to matters unrelated to refugee status, including suitability for immigration on economic,
cultural, personal, or other grounds. Account must also be taken of any genuine disabil-
ities faced by particular refugees, for example by reason of language, education, mistrust,
or the residual effects of stress or trauma, which may make it difficult for them to provide
authorities with the information required to verify their refugee status. Because refugee
status assessment involves a shared responsibility between the refugee and national
authorities (see UNHCR, Handbook, at [196]), it is the responsibility of the receiving
state to take all reasonable steps to assist refugees to state their claims to protection with
clarity. See generally W. Kälin, “Troubled Communication: Cross-Cultural
Misunderstandings in the Asylum Hearing,” (1986) 20 International Migration Review
230; J. Hathaway, Rebuilding Trust: Report of the Review of Fundamental Justice in
Information Gathering and Dissemination at the Immigration and Refugee Board of
Canada (1994); A. Leiss and R. Boesjes, Female Asylum Seekers (1994); UNHCR,
“Refugee Children: Guidelines on Protection and Care” (1994); R. Barsky, Constructing
a Productive Other: Discourse Theory and the Convention Refugee Hearing (1994);
UNHCR, “Guidelines on Policies and Procedures in Dealing with Unaccompanied
Children Seeking Asylum” (1997); and H. Evans Cameron, Refugee Law’s Fact-Finding
Crisis: Truth, Risk, and the Wrong Mistake (2018).
133
Referring to this drafting history, UNHCR helpfully observes that “[w]hilst the term
‘regularly admitted’ did not eventually find its way into the 1951 Convention it informed
the concept of ‘lawfully in’”: UNHCR, Handbook on Protection of Stateless Persons (2014),
at 48, n. 81. Grahl-Madsen suggests one potentially important exception to this general
principle. He argues that a refugee who is detained pending verification of his claim to
Convention refugee status (presumably on grounds that meet the justification test of Art.
31(2) of the Convention) can no longer be considered to be “lawfully” present: Grahl-
Madsen, Status of Refugees II, at 361–362. This conclusion is clearly tenable, though not
based on decisions reached during the drafting process. A detained refugee claimant
would still be entitled to those rights which are not restricted to refugees whose presence
is lawful, i.e. the rights defined by the first level of attachment.
134
After reviewing the various approaches to interpreting “lawful presence,” a recent study
commissioned by UNHCR refers to the understanding posited here as “the most appro-
priate interpretation of Article 26, particularly in the African setting. Under this reading,
the right to freedom of movement takes effect as soon as a refugee does all in his or her
power to apply for asylum in the state. This would take into account state practice (i.e. the
procedure for applying), allow for security and protection concerns surrounding registra-
tion in times of mass influx, remove the potential for state abuse and fit logically within the
five levels of attachment set out in the 1951 Convention”: N. Maple, “Rights at Risk:
A Thematic Investigation into How States Restrict the Freedom of Movement of Refugees
on the African Continent,” Oct. 2016, at 7.

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 200 3 e ntitlement under t he refugee convention

There is strong, albeit not unanimous,135 judicial affirmation that persons

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

135
Marx notes, for example, that “[t]he German Federal Constitutional Court . . . has
repeatedly stated that Art. 26 [on freedom of movement of ‘lawfully present’ refugees]
applies only to refugees whose refugee status has been finally determined . . . Yet, the
residence of asylum seekers cannot simply be regarded as a matter of what domestic law
says . . .. [which] blurs the important distinction of the 1951 Convention between the
terms ‘lawfully staying’ and ‘lawfully present’”: R. Marx, “Article 26,” in A. Zimmermann
ed., The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol:
A Commentary 1147 (2011) (Marx, “Article 26”), at 1161.
136
There is also occasional affirmation in domestic law, e.g. Article 8 of the Netherlands Law
on Foreign Nationals of 2000, providing that “[a] foreign national shall be lawfully
resident in the Netherlands . . . pending a decision on an application for the issue of
a residence permit [on the basis of refugee status]”: cited in JN v. Staatssecretaris voor
Veiligheid en Justitie, Dec. No. C-601/15 PPU (CJEU, Feb. 15, 2016). See also I. Zamfir,
“Refugee Status Under International Law,” EU Parliamentary Research Service, Oct. 27,
2015, at 3/4 (“The second tier of rights are to be granted when refugees are ‘lawfully
present’ in the host state (for example while their asylum claim is processed)”).
137
“In the present case, Mr. Rajendran entered the country on a visitor’s visa. He now holds
a bridging visa. If his application for a [refugee status-based] protection visa is ultimately
unsuccessful . . . that visa will cease to have effect at the time stipulated in the relevant
Migration Regulations . . . whereupon he will cease both to be lawfully in Australia and to
be able to invoke Article 32”: Rajendran v. Minister for Immigration and Multicultural
Affairs, (1998) 166 ALR 619 (Aus. FFC, Sept. 4, 1998). The logic of this position was more
recently recognized by a judge in the Full Federal Court, who noted that “[t]he Migration
Act uses the concept of a visa as the delineation between lawful and unlawful non-
citizens . . . A visa is a statutory form of executive permission . . . There are two broad
kinds of visa: temporary and permanent . . . The former constitutes permission to travel to
and enter Australia, and remain during a specified period; until a specified event happens;
or while the holder has a specified status”: Minister for Immigration and Border Protection
v. SZVCH, [2016] FCAFC 127 (Aus. FFC, Sept. 14, 2016), at [75]–[76], per Mortimer J.
138
Mustafa Aman Arse v. Minister of Home Affairs, Dec. No. 25/2010 (SA SCA, Mar. 12,
2010), at [19]. Similarly, the child of a person seeking recognition of refugee status is “a
child who is lawfully in this country”: Minister of Home Affairs v. Watchenuka, (2004) 1 All
SA 21 (SA SCA, Nov. 28, 2003), at [36], per Nugent J.A.
139
Jannatu Alam v. Minister of Home Affairs, Dec. No. 3414/2010 (SA HC, Eastern Cape, Feb.
9, 2012), at 6–7.

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 3.1 at t a c h m e n t t o t h e as y l u m st a t e 201

not then unlawfully present . . . [despite the fact that] they did not have a right
to live in Ireland, unless successful in their asylum application.”140 And the
Court of Justice of the European Union ruled that a person who would be
removable but for his claim to be a refugee was “lawfully present” in the Czech
Republic. The Court observed not only that EU law entitles asylum-seekers to
remain in a Member State during the examination of their claims,141 but
insisted more generally that “lawful presence” must be construed in
a purposeful manner:
[I]t is clearly apparent . . . that an asylum seeker, independently of the
granting of [a residence] permit, has the right to remain in the territory of
the Member State concerned at least until his application has been rejected
at first instance, and cannot therefore be considered to be “illegally
staying”.142
This understanding has moreover been embraced by the UNHCR:
Given the declaratory nature of refugee status, Article 32 is . . . applicable
to asylum-seekers, including those who have entered the country illegally
but have since entered the asylum procedures and may therefore be
considered as “authorized” to be present in the territory of the country
and lawfully therein.143
140
CI and Others v. Minister for Justice, Equality, and Law Reform, [2015] IECA 192 (Ir. CA,
July 30, 2015), at [44]. See also Agha v. Minister for Social Protection, [2017] IEHC 6 (Ir.
HC, Jan. 17, 2017), finding that a person undergoing refugee status assessment benefits
from “a restricted consent pending the determination of the status of the asylum seeker,”
though such consent does not amount to lawful stay (ibid. at [40]).
141
Mehmet Arslan v. Czech Republic, Dec. No. C-534/11 (CJEU, May 30, 2013), at [44].
142
Ibid. at [48].
143
UNHCR, “Response to the Constitutional Court of Ecuador query regarding International
Treaty No. 0030-13-TI,” Apr. 17, 2015, at 8. See also UNHCR, “Observations on the
proposed amendments to the Danish Aliens legislation,” Oct. 31, 2016, at 3 (“The words
‘lawfully in’ included in Article 32 of the 1951 Convention impl[y] that the refugee is
present on the territory of the host country in an authorized manner, under applicable
national legislation, even if the refugee is authorized to remain only on a temporary basis.
UNHCR is of the view that Article 32 should be extended to asylum-seekers lawfully in the
territory of a contracting State, including those who have entered the country illegally but
have since entered the asylum procedures and may therefore be considered as ‘authorized’
to be present in the territory of the country”); UNHCR, Intervention before the European
Court of Human Rights in the case of Saadi v. United Kingdom, Mar. 30, 2007, at [27]
(“UNHCR considers that the better view is that status regularisation, for the purposes of
Art. 31(2), occurs once the asylum seeker submits to and meets the host State’s legal
requirements to have his claim evaluated . . . Thus, once the domestic law formalities for
access into the determination procedures have been complied with, status is
regularised . . . and Art. 26 governs the position”); and UNHCR, “Statement on the
reception conditions of asylum-seekers under the Dublin procedure,” filed in Court of
Justice of the European Union case of CIMADE and GISTI v. Ministry of the Interior, Dec.
No. C-179/11, Aug. 1, 2011, at [4.1.3] (“The rights which apply to refugees physically in or
lawfully in the territory of the concerned State are applicable to asylum-seekers”).

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 202 3 e n t i t l emen t un der the refu gee c onvention

In contrast, in ST (Eritrea)144 the UK Supreme Court determined that

“lawful presence” is an issue that “must be determined solely with reference
to domestic law,”145 even if that law deems presence prior to formal recogni-
tion of status to be unlawful. In reaching this conclusion, the Court sidelined
the reasoning of the House of Lords in the 2005 case of Szoma146 that a person
undergoing refugee status assessment was lawfully present by virtue of
“express written authority of an immigration officer provided for by
statute.”147 It instead relied on an unwieldy amalgam of deference to the
much earlier House of Lords case of Bugdaycay,148 an unfortunate UNHCR
144
R (ST, Eritrea) v. Secretary of State for the Home Department, [2012] UKSC 12 (UK SC,
Mar. 21, 2012).
145
Ibid. at [13]. Indeed, one member of the Court wrote, “As to what [lawfully present]
means, I see no warrant for interpreting the article as prohibiting the expulsion of
a refugee who is not lawfully present on the basis of domestic law, but whose expulsion
would contravene Convention norms [emphasis added]”: ibid. at [64], per Lord Dyson
(concurring). This echoes the approach of the European Court of Human Rights inter-
preting the phrase “lawfully within the territory of a State” under regional human rights
law to “refer[] to the domestic law of the State concerned. It is for the domestic law and
organs to lay down the conditions which must be fulfilled for a person’s presence in the
territory to be considered ‘lawful’”: Omwenyeke v. Germany, Dec. No. 44294/04 (ECtHR,
Nov. 20, 2007), at [1]. A comparable, though somewhat less demanding, standard has been
suggested by the New Zealand Court of Appeal, which determined that a person positively
determined to be a Convention refugee was not lawfully present because he had “not been
granted a permit to enter New Zealand”: Attorney General v. Zaoui, Dec. No. CA20/04
(NZ CA, Sept. 30, 2004), at [32]–[33]. See also the approval of the UK approach voiced in
the High Court of Australia at note 152.
146
Szoma v. Secretary of State for the Department of Work and Pensions, [2005] UKHL 64 (UK
HL, Oct. 27, 2005). See generally C. Sawyer, “Elephants in the Room, or A Can of Worms:
Szoma and Lawful Presence in the United Kingdom,” (2007) 14 Journal of Social Security
Law 86. The Supreme Court noted simply that it approved of counsel’s decision not to rely
on Szoma since “[t]he ancient maxim verba accipienda sunt secundum subjectam mate-
riam (words are to be understood according to the subject-matter with which they deal)
provides the best guide to the meaning that should be given to what Lord Brown said in
[Szoma]”: R (ST, Eritrea) v. Secretary of State for the Home Department, [2012] UKSC 12
(UK SC, Mar. 21, 2012), at [38]. But given the generality of Szoma’s common sense
approach to the meaning of words, the maxim might reasonably be thought not to be
relevant.
147
Szoma v. Secretary of State for the Department of Work and Pensions, [2005] UKHL 64 (UK
HL, Oct. 27, 2005), at [28].
148
R v. Secretary of State for the Home Department, ex parte Bugdaycay, [1987] AC 514 (UK
HL, Feb. 19, 1987), at 526, determining that not even temporary admission to the UK gave
rise to lawful presence under British law. There is no indication that relevant portions of
the Convention’s drafting history – e.g. those speaking to both temporary admission, and
to presence before status was regularized as examples of lawful presence (see text at notes
128 and 130) – were drawn to the attention of the House of Lords. With the benefit of these
insights, at least a core international understanding of “lawful presence” for refugee law
purposes might well have been identified. In any event, Lord Bridge was clearly led to
conclude against finding temporarily present persons to be “lawfully in” the country
because of a mistaken belief that “if [this] argument is right, it must apply equally to any

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 3.1 a ttachment to the asylum state 203

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

person arriving in this country . . . whether he is detained or temporarily admitted pending

a decision on his application for leave to enter. It follows that the effect of the submission,
if it is well-founded, is to confer on any person who can establish that he has the status of
a refugee . . . but who arrives in the United Kingdom from a third country, an indefeasible
right to remain here, since to refuse him leave to enter and direct his return to the third
country will involve the United Kingdom in the expulsion of a ‘refugee lawfully in their
territory’ contrary to article 32(1)”: ibid. at 526. But states may lawfully (and often do)
interpose an eligibility determination procedure to determine whether some other state
may be said to have primary responsibility to determine the claim to refugee status.
Because a refugee not yet found eligible to pursue his or her claim is not yet lawfully
present, Art. 32 does not govern his or her removal (though Art. 33 remains applicable):
see Chapter 5.1 at note 46 ff.
149
“[T]he UNHCR states in ‘“Lawfully Staying”’: A Note on Interpretation’ (1988) that its
conclusion from the travaux is that the ‘lawfulness’ of the stay is to be judged against
national rules and regulations governing such a stay . . . [Because] there is no consensus
among the commentators that lawful presence should be given an autonomous meaning
or what that meaning should be . . . we must take our guidance from what the framers of
the Convention must be taken to have agreed to, as understood by the UNHCR”: R (ST,
Eritrea) v. Secretary of State for the Home Department, [2012] UKSC 12 (UK SC, Mar. 21,
2012), at [33]–[34]. While the Court suggests that there is a lack of consistency in
international scholarly commentary, there is in fact a strong consensus in favor of the
approach taken here: see note 153.
150
“A refugee who is lawfully present in the territory of a contracting state is entitled to the
same treatment as regards self-employment as is accorded to aliens generally who are in
the same circumstances: article 18. He must also be accorded the right to choose his place
of residence and to move freely within the territory, subject to any regulations that are
applicable to aliens generally in the same circumstances: article 26. The notifications that
have been issued to the appellant from time to time, which require her to reside at an
address notified to her by an immigration officer, to report to an immigration official every
two months and not to work or engage in any business unless she has explicitly been
granted permission to do so, make it plain that she is not being accorded the rights referred
to in these articles. They are rights the granting of which a sovereign state could be
expected to reserve to itself, in just the same way as it would wish to reserve to itself the
decision as to whether a refugee should be granted permission to enter in its territory . . . It
seems unlikely that the contracting states would have agreed to grant a refugee the
freedom to choose their place of residence and to move freely within their territory before
they had decided, according to their own domestic laws, whether or not to admit to the
territory in the first place”: ibid. at [36]–[37].
151
R (ST, Eritrea) v. Secretary of State for the Home Department, [2012] UKSC 12 (UK SC,
Mar. 21, 2012), at [24]. The court was emphatic that lawful presence “implies that his
presence is not just being tolerated”: ibid. at [32].
152
This understanding was subsequently affirmed by the Court of Appeal in Hannah
Blakesley v. Secretary of State for Work and Pensions, [2015] EWCA Civ 141 (Eng. CA,
Feb. 26, 2015), at [41]: “His/her presence only becomes ‘lawful’ under UK law when the
proper authority . . . has determined that the person is a refugee.” Two judges of the High
Court of Australia subsequently voiced approval of this approach. “In R (ST) v. Secretary of

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 204 3 e n t i t l e m e n t u n d e r th e r e f u g e e co nv en t i o n

This minority view of “lawful presence” – predicated on complete deference

to domestic law, in particular to domestic laws purporting to deem all presence
prior to recognition of refugee status to be unlawful – is problematic for at least
three reasons.153

State for the Home Department . . . the United Kingdom Supreme Court construed
‘lawfully’ as it appears in Art. 32 as meaning ‘lawful according to the domestic laws of
the contracting state.’ This construction should be accepted”: Plaintiff M47/2012 v.
Director-General of Security, [2012] HCA 46 (Aus. HC, Oct. 5, 2012), at [94], per
Gummow J. Similarly, Justice Hayne was content to assume that rights requiring only
lawful presence “should be read as meaning that the refugee has been granted the right to
live in that state under the domestic law of that state”: ibid. at [217]. In line with this view,
a subsequent decision of the Full Federal Court found that a recognized refugee to whom
the Minister had opted not to provide a visa was “not ‘lawfully’ in Australia (because he has
no visa) [and as such] does not have the benefit of other protection obligations in the
Refugee Convention”: NBMZ v. Minister for Immigration and Border Protection, [2014]
FCAFC 38 (Aus. FFC, Apr. 9, 2014), at [120].
153
The weight of scholarly opinion is at odds with the approach taken in ST (Eritrea). Grahl-
Madsen suggests that “a refugee’s presence may, on the face of it, be ‘illegal’ according to
some set of rules (e.g. aliens legislation), yet ‘legal’ within a wider frame of reference (e.g.
international refugee law)”: Grahl-Madsen, Status of Refugees II, at 363. As Edwards
observes, Grahl-Madsen’s conclusion (which Edwards adopts) mirrors the approach
advanced here, namely “that one might be unlawfully in the territory according to national
immigration laws, yet still be lawfully in the territory for the purposes of the 1951
Convention”. Marx writes that “[t]he term ‘lawfully present within a country’ according
to refugee law . . . includes persons in a refugee status determination procedure who are at
least lawfully present for the purposes of seeking refugee status . . . [T[he term ‘lawfully
within a territory’ . . . is not simply a matter of what domestic law says . . . [R]efugee law, in
this regard, supersedes domestic regulations”: Marx, “Article 26,” at 1156–1157. The
outlier position is that of Goodwin-Gill and McAdam, who assert that lawful presence
for purposes of Art. 32 means presence “on a more or less indefinite basis”: Goodwin-Gill
and McAdam, Refugee in International Law, at 525. As Edwards observes, “Goodwin-Gill
and McAdam’s view defers too heavily to national immigration laws (which vary), rather
than to the essence of the 1951 Convention”: A. Edwards, “Article 18,” in A. Zimmermann
ed., The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol:
A Commentary 973 (2011), at 978; indeed, “[t]o adopt Goodwin-Gill and McAdam’s
approach would [be to] permit States parties simply to refuse to grant rights or status and
thereby avoid their obligations”: A. Edwards, “Article 17,” in A. Zimmermann ed., The
1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary
951 (2011) (Edwards, “Article 17”), at 965. Goodwin-Gill and McAdam moreover offer no
legal argument to justify this clear deviation from the express provisions of the
Convention, relying instead on a bald appeal to the importance of achieving consistency
with relevant state practice. State practice may, of course, assist in establishing the
interpretation of a treaty provision: Vienna Convention on the Law of Treaties, 1155
UNTS 331 (UNTS 18232), done May 23, 1969, entered into force Jan. 27, 1980 (Vienna
Convention), at Art. 31(3)(b). However, state practice standing alone cannot give rise to
a legal norm which may be relied upon to challenge the applicability of a conflicting treaty
stipulation: see generally Chapter 2.4. In any event, there is – as described at note 135 ff. –
significant state practice that accords with the view that “lawful presence” requires less
than “lawful stay,” with only the latter notion denoting stay “on a more or less indefinite
basis”: see Chapter 3.1.4. Another dissenting view is expressed by Livnat, who suggests that

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 3.1 a ttachment to the asylum state 205

First, as noted in the concurrence of Lord Dyson in ST (Eritrea) itself, it is

difficult to see on the basis of the plain meaning of the words that a person
granted official permission to be present while his or her asylum claim is being
assessed is not lawfully present:
Without statutory intervention, it might be difficult to decide whether
a person who has been granted temporary admission pending determin-
ation of her application for asylum is lawfully present in the territory. It is
not self-evident that she is not lawfully present in these circumstances.
After all, she is physically present in the territory and her presence has
been authorized by the state, admittedly for a limited period.154
Indeed, as UNHCR has opined, “to be ‘lawfully in’ a State party, . . . presence in
the country needs to be authorized by the State. The concept encompasses both
presence which is explicitly sanctioned and also that which is known and not
prohibited, taking into account all personal circumstances of the
individual.”155
Second, a definition of “lawful presence” that requires an ongoing right to
remain in the asylum country conflates “lawful presence” with “lawful stay,”156
thereby effectively eliminating one of the Convention’s five levels of
attachment.157 Even as the drafters varied the level of attachment applicable
to specific rights, they expressly opted to grant some rights at an intermediate
point between “physical presence” and “lawful stay” – namely, “lawful pres-
ence.” Yet under the interpretation adopted in ST (Eritrea) there is no such
intermediate point. Refugees would move directly from being merely

while complete deference to national law “is clearly wrong,” lawful presence should be
flexibly conceived in a manner that promotes the restoration of “refugees’ stability and
psychological well-being” and which promotes “burden-sharing through international
cooperation”: Y. Livnat, “Compulsory Secondary Movement and Article 32 of the Refugee
Convention,” reflaw.org, Aug. 28, 2019. Rather than defining “lawful presence” in general
terms, he proposes four factors that align the meaning of lawful presence with his views on
the circumstances in which Art. 32 ought not to impede compulsory secondary movement
(ibid.). This instrumentalist approach is, however, difficult to reconcile to both the
interpretive requirements of the Vienna Convention (see Chapter 2) and to the fact that
the third level of attachment governs rights other than Art. 32.
154
R (ST, Eritrea) v. Secretary of State for the Home Department, [2012] UKSC 12 (UK SC,
Mar. 21, 2012), at [56], per Lord Dyson (concurring). In line with this understanding, the
House of Lords had earlier determined specifically that “[a]n asylum seeker . . . may
commit a criminal offence by entering this country illegally. But on making his claim to
the authorities, he may be granted temporary admission. His presence is no longer illegal”:
Mark v. Mark, [2005] UKHL 42, (UK HL, June 30, 2005), at [48].
155
UNHCR, Handbook on Protection of Stateless Persons (2014), at [135].
156
See Chapter 3.1.4.
157
This result was ironically reached by the UK Supreme Court in the very case that
recognized that “[a]n examination of the Convention shows that it contemplates five
levels of attachment to the contracting states”: R (ST, Eritrea) v. Secretary of State for the
Home Department, [2012] UKSC 12 (UK SC, Mar. 21, 2012), at [21].

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 206 3 e ntitlement under the refugee convention

physically (but “irregularly”) present, to securing simultaneously all the rights

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

158
See Robinson, History, at 117.
159
United States – Standards for Reformulated and Conventional Gasoline, WT/DS2/AB/R
(WTO AB, Apr. 29, 1996), at 23. The ut res magis valeat quam pereat principle requires
a reading of “all applicable provisions of a treaty in a way that gives meaning to all of them,
harmoniously”: Korea – Definitive Safeguard Measure on Imports of Certain Dairy
Products, WT/DS98/AB/R (WTO AB, Dec. 14, 1999), at [81].
160
As much is clear from the fact that the drafters agreed that if a state grants a refugee even
very short-term permission to enter its territory, that refugee is – for the duration of that
domestically granted status – lawfully present in that country: see text at note 124.
161
UN Human Rights Committee, “General Comment No. 27: Freedom of Movement”
(1999), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [4]. See also Amuur v. France,
[1996] ECHR 25 (ECtHR, June 25, 1996), at [50], holding that lawfulness is not simply
a question of compliance with national law.
162
Kaya v. Haringey London Borough Council, [2001] EWCA Civ 677 (Eng. CA, May 1, 2001),
at para. 31. For this reason, an understanding of “lawful presence” that effectively obviates
this level of attachment by conflating it with “lawful stay” is not sound, as it contravenes
the very structure of the Refugee Convention itself. See Chapter 2.2 regarding the
interpretive role of internal context.
163
It is persuasive that the International Criminal Court has determined that in understand-
ing which persons are “lawfully present” for purposes of understanding the crime of
deportation or forcible transfer of populations, “whether a person lived in a location for
a sufficient period of time to meet the requirements for residency or whether he or she has
been accorded such status under immigration laws is irrelevant”: Prosecutor v. Popović
et al., Case No. IT-05–88-T, Trial Judgment (ICTY, June 10, 2010), at [900].

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 3 .1 a ttachment to the asylum state 207

Of particular importance, the jurisprudence of the United Nations Human

Rights Committee interpreting the right to freedom of internal movement
under the Civil and Political Covenant (which inheres in all persons “lawfully
within the territory of a State”)164 is consistent with the view that persons
allowed to remain in a state while their refugee claims are assessed are “lawfully
present” in the asylum state. In Celepli v. Sweden,165 the Human Rights
Committee considered the claim of a rejected refugee claimant formally
ordered to be expelled to Turkey, but not in fact removed on humanitarian
grounds. Despite the issuance of the expulsion order, the Committee deter-
mined the applicant to be “lawfully present” in Sweden:
The Committee notes that the author’s expulsion was ordered on
10 December 1984, but that this order was not enforced and that the
author was allowed to stay in Sweden, subject to restrictions on his
freedom of movement. The Committee is of the view that, following the
expulsion order, the author was lawfully in the territory of Sweden, for
purposes of article 12, paragraph 1, of the Covenant, only under the
restrictions placed upon him by the State party.166
Clearly, if a rejected refugee claimant allowed to remain on humanitarian
grounds is “lawfully present” by virtue of the host government’s decision not
to enforce the removal order, there can be little doubt that a refugee claimant
admitted to a status determination procedure and authorized to remain pend-
ing assessment of his or her case is similarly lawfully present. Indeed, the
Human Rights Committee has affirmed its position on the meaning of “lawful
presence,” expressly citing its findings in Celepli as authority for the propos-
ition that
[t]he question whether an alien is “lawfully” within the territory of a State
is a matter governed by domestic law, which may subject the entry of an
alien to the territory of a State to restrictions, provided they are in
compliance with the State’s international obligations. In that connection,
the Committee has held that an alien who entered the State illegally, but
whose status has been regularized, must be considered to be lawfully within
the territory [emphasis added].167

164
Civil and Political Covenant, at Art. 12(1).
165
Celepli v. Sweden, HRC Comm. No. 456/1991, UN Doc. CCPR/C/51/D/456/1991, decided
Mar. 19, 1993.
166
Ibid. at [9.2]. This approach was affirmed in Karker v. France, HRC Comm. No. 833/1998,
UN Doc. CCPR/C/70/D/833/1998, decided Oct. 26, 2000, at [9.2], involving a Tunisian
refugee suspected of terrorism and confined by French authorities when deemed non-
deportable.
167
UN Human Rights Committee, “General Comment No. 27: Freedom of Movement”
(1999), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [4].

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 208 3 e n t i t l e m e n t u n d e r th e r e f u g e e co nv en t i o n

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

168
See text at note 123 ff. The Court of Justice of the European Union has notably determined
that the withdrawal or non-recognition of refugee status under regional law operates
without prejudice to entitlements under the Refugee Convention. If such a person is
“authorized, on another legal basis, to stay lawfully in the territory of the member state
concerned . . . article 14(6) of [the Qualification Directive] in no way prevents that
member state from guaranteeing that the person concerned is entitled to all the rights
which the Geneva Convention attaches to ‘being a refugee’”: M v. Czech Republic, X and
X v. Belgium, Dec. Nos. C-391/16, C-77/17, and C-78/17 (CJEU, May 14, 2019), at [106].
169
See e.g. Lawyers’ Committee for Human Rights, African Exodus: Refugee Crisis, Human
Rights and the 1969 OAU Convention (1995), at 29–30.
170
For example, the temporary protection policies adopted by some European states in
response to the arrival of refugees from Bosnia–Herzegovina actually diverted asylum-
seekers away from formal processes to adjudicate refugee status, or at least suspended
assessment of status for a substantial period of time: Intergovernmental Consultations on
Asylum, Refugee and Migration Policies in Europe, North America and Australia, Report
on Temporary Protection in States in Europe, North America and Australia (1995), at
79, 118.
171
Kälin writes that “lawful presence” “refers to presence authorized by law which . . . may be
of a temporary nature. Thus, these provisions may be invoked by those among the
temporarily protected who are Convention refugees”: W. Kälin, “Temporary Protection
in the EC: Refugee Law, Human Rights, and the Temptations of Pragmatism,” (2001) 44
German Yearbook of International Law 221 (Kälin, “Temporary Protection”), at 221.
172
“Generally, an alien is considered to be ‘lawfully’ in a territory if he possesses proper
documentation . . . has observed the frontier control formalities, and has not overstayed

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 3 .1 attachment t o the as ylum s tate 209

the decision not to authenticate refugee status, whether generally or as an

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

the period for which he has been allowed to stay by operation of law or by virtue of
‘landing conditions.’ He may also be ‘lawfully’ in the territory even if he does not fulfil all
the said requirements, provided that the territorial authorities have dispensed with any or
all of them and allowed him to stay in the territory anyway [emphasis added]”: Grahl-
Madsen, Status of Refugees II, at 357. UNHCR has adopted the view that “[u]nder
international refugee law, both refugees and asylum-seekers, in respect of the latter this
includes those who are registered as asylum-seekers as well as those who have announced
their intention to seek asylum but who have yet to be registered officially because of, for
example, administrative delays, are considered ‘lawfully in’ the territory for the purposes
of benefitting from [Art. 26] [emphasis added]”: UNHCR, “Amicus Brief, Kituo Cha
Sheria v. Attorney-General, High Court of Kenya, July 27, 2013,” at [7.2].
173
The critical point is that refugee status determination is merely a declaratory, not
a constitutive, process. Convention rights inhere in a person who is in fact
a Convention refugee, whether or not any government has recognized that status: see
Chapter 3.1 at note 28 ff.
174
Belden Norman Namah v. Minister for Foreign Affairs and Immigration, Dec. No. SC1497
(PNG SCJ, Apr. 26, 2016), at [58]. The Court also noted “that the asylum seekers were
brought into PNG against their will but otherwise have entered and remain lawfully in the
country”: ibid. at [69].
175
Indeed, it is arguable that “[i]f a refugee’s presence in the territory of a state party to the
Convention is not unlawful, in that the state is aware, or should be aware, of the refugee’s
presence and the state is unable or unwilling to remove the refugee, then the refugee’s
presence may be regarded as lawful for the purposes of the Refugee Convention”: “The
Michigan Guidelines on the Right to Work,” 31 Michigan Journal of International Law 293
(2010), at [7]. The argument in favor of seeing presence as lawful based on official
tolerance or acquiescence would seem especially strong if the state is aware of the refugee’s
presence and unwilling (rather than simply unable) to remove him or her.

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 210 3 en t i t l em e n t u n d er t h e r ef u g ee c o n v e n t i o n

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

176
The decision on whether or not to establish such a system is within the discretion of each
state party: UNHCR, Handbook, at [189].
177
“The expression ‘lawfully within their territory’ throughout this draft convention would
exclude a refugee who, while lawfully admitted, has over-stayed the period for which he
was admitted or was authorized to stay or who has violated any other condition attached to
his admission or stay”: “Report of the Ad Hoc Committee on Statelessness and Related
Problems,” UN Doc. E/1618, Feb. 17, 1950, at Annex II (Art. 10).
178
See Chapter 3.1 at note 38. 179 Ibid.
180
See generally Grahl-Madsen, Status of Refugees I, at 367–412; Hathaway and Foster,
Refugee Status, at 462–499; and Goodwin-Gill and McAdam, Refugee in International
Law, at 135–149.
181
Refugee Convention, at Art. 14. 182 Ibid. at Art. 16(2).

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 3 .1 a ttachment to the asylum state 211

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

183
The notion of “habitual residence” dates back to at least the 1896 Hague Convention on
Civil Procedure, adopted Nov. 14, 1896, entered into force Apr. 27, 1899, 88 British &
Foreign State Papers 555. The concept is thought first to have emerged in bilateral treaties
of the 1880s: P. Beaumont and P. McEleavy, The Hague Convention on International Child
Abduction (1999), at 88.
184
“Apart from being acceptable to lawyers of both the common law and civil law traditions,
the strength of habitual residence lies in its flexibility, a characteristic particularly valued in
the regulation of jurisdiction”: L. Collins, Dicey and Morris on the Conflict of Laws (2019),
at 199.
185
Given developments in the common law notion of “domicile” this may no longer be true.
See Chapter 3.2.4 at note 362.
186
The habitual residence inquiry is retrospective and oriented to the identification of
objective indicators that suggest “the place where the person has established, on a fixed
basis, his permanent or habitual centre of interests, with all relevant facts being taken into
account for the purpose of determining such residence”: Explanatory Report to the
Brussels II Convention, OJ 1998 C221/27. As the New Zealand refugee tribunal has
opined, “the question of whether habitual residence [has] been established is a question
of fact to be determined on the circumstances of each case, but the individual should be
able to show that he or she has made it the centre of his or her interests”: Refugee Appeal
No. 72635/01 (NZ RSAA, Sept. 6, 2002), at [116].
187
Law Reform Commission of Ireland, “Domicile and Habitual Residence as Connecting
Factors in the Conflict of Laws” (1981), at [21].
188
See note 186. 189 Grahl-Madsen, Status of Refugees I, at 160.
190
A. Metzger, “Article 14,” in A. Zimmermann ed., The 1951 Convention Relating to the
Status of Refugees and its 1967 Protocol: A Commentary 895 (2011) (Metzger, “Article 14”),
at 905.
191
Belgium, Private International Law Code (July 16, 2004) (unofficial translation), at
Art. 4.2.1.

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 212 3 e n t i t l e m en t u n d e r t h e r e f u g e e co n v e n t i o n

generally agreed that illegality of presence is a strong proxy against a finding

of habitual residence.192
In practice, then, the standards of lawful presence and habitual residence
converge to a very significant extent, with both concepts requiring more than
simple physical presence and neither being dependent on the formal recogni-
tion of refugee status. As such, and despite their different points of emphasis,
both lawful presence and habitual residence define a middle ground between
simply having arrived in an asylum country and having been formally author-
ized to stay there on an ongoing basis.

3.1.4 Lawful Stay

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

192
B. Rentsch, Der gewöhnliche Aufenthalt im System des Europäischen Kollisionsrechts
(2017) (Rentsch, Der gewöhnliche Aufenthalt) (noting that while illegality does not
preclude the establishment of habitual residence, it is treated in most European
states as a strong proxy against it). For example, the Austrian Asylum Board has
taken the view that only authorized presence can be habitual residence: SW
v. Federal Authority, Dec. No. 201.440/0-II/04/98 (Au. UBAS, Mar. 20, 1998). Only
a modestly more liberal position was taken in Germany, finding that illegal presence
could be deemed habitual residence because authorities had initiated no measures to
terminate the illegal presence, thus acquiescing in the continued presence: Dec. No.
10 C 50.07 (Ger. FAC, Feb. 26, 2009). It thus overstates the position to argue that
“the lawful presence or staying of the refugee is without significance for the applica-
tion of Art. 14. Intellectual property protection is granted both to legal and illegal
refugees”: Metzger, “Article 14,” at 905.
193
Refugee Convention, at Arts. 15 (“right of association”), 17 (“wage-earning employ-
ment”), 19 (“liberal professions”), 21 (“housing”), 23 (“public relief”), 24 (“labour legisla-
tion and social security”), and 28 (“travel documents”). In specific circumstances, the
benefit of Arts. 7(2) (“exemption from reciprocity”) and 17(2) (exemption from restrictive
measures imposed on aliens in the context of “wage-earning employment”) may also be
claimed: see Chapters 3.2.2 and 6.1.1.
194
“The Chairman emphasized that the Committee was not writing Anglo-American law or
French law, but international law in two languages. The trouble was that both the English-
speaking and the French-speaking groups were trying to produce drafts which would
automatically accord with their respective legal systems and accepted legal terminology”:
Statement of the Chairman, Mr. Larsen of Denmark, UN Doc. E/AC.32/SR.42, Aug. 24,
1950, at 25.

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 3 .1 attachment t o t he as ylum s ta te 213

most accurate rendering of the French language concept of “résidant

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

195
“The Committee experienced some difficulty with the phrases ‘lawfully in the terri-
tory’ in English and ‘résidant régulièrement’ in French. It decided however that the
latter phrase in French should be rendered in English by ‘lawfully staying in the
territory”’: “Report of the Style Committee,” UN Doc. A/CONF.2/102, July 24, 1951.
The same conclusion is reached by M. Teichmann, “Article 15,” in A. Zimmermann
ed., The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol:
A Commentary 909 (2011), at 923; and A. Edwards, “Article 19,” in A. Zimmermann
ed., The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol:
A Commentary 983 (2011), at 963–964 (“The term ‘lawfully staying’ is based on
a translation of the French term ‘résidant régulièrement’”).
196
“He could not accept ‘résidant régulièrement’ if it was to be translated by ‘lawfully
resident,’ which would not cover persons who were not legally resident in the English
sense. It would not, for example, cover persons staying in the United States on a visitor’s
visa, and perhaps it might not even cover persons who had worked for the United Nations
for five years in Geneva. The word ‘residence’ in English, though not exactly equivalent to
‘domicile,’ since it was possible to have more than one residence, had much of the same
flavour”: Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.42, Aug. 24,
1950, at 24. But see the contrary interpretation of the Canadian government implicit in its
reservation to the Refugee Convention, https://treaties.un.org/, accessed Feb. 1, 2020:
“Canada interprets the phrase ‘lawfully staying’ as referring only to refugees admitted
for permanent residence; refugees admitted for temporary residence will be accorded the
same treatment with respect to the matters dealt with in Articles 23 and 24 as is accorded
visitors generally.”
197
“[T]here were two alternatives: either to say ‘résidant régulièrement’ and ‘lawfully resi-
dent,’ or to say ‘lawfully’ in which case ‘résidant’ must be omitted, otherwise, there would
be too many complications in the translation of the various articles . . . [I]t would be better
to say ‘régulièrement,’ since ‘légalement’ seemed too decidedly legal”: Statement of
Mr. Juvigny of France, UN Doc. E/AC.32/SR.42, Aug. 24, 1950, at 33–34. In the context
of a judgment interpreting the distinct, but related, notion of “habitual residence,” the
House of Lords insisted upon comparable flexibility and sensitivity to specific facts. “It is
a question of fact . . . Bringing possessions, doing everything necessary to establish
residence before coming, having a right of abode, seeking to bring family, ‘durable ties’
with the country of residence or intended residence, and many other facts have to be taken
into account. The requisite period is not a fixed period. It may be longer where there are
doubts. It may be short”: Nessa v. Chief Adjudication Officer, Times Law Rep, Oct. 27, 1999
(UK HL, Oct. 21, 1999).
198
Statement of Mr. Juvigny of France, UN Doc. E/AC.32/SR.42, Aug. 24, 1950, at 12.
199
“[T]he expression ‘résidant régulièrement’ did not imply a lengthy stay, otherwise the
expression ‘résidence continue’ . . . would have been employed”: Statement of Mr. Juvigny
of France, UN Doc. E/AC.32/SR.41, Aug. 23, 1950, at 17.

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 214 3 e ntitlement under t he refugee c onvention

nor the establishment of habitual residence200 is required, the refugee’s presence

in the state party must be ongoing in practical terms.201
The most straightforward example of lawful stay is, of course, ongoing
presence consequent to the formal recognition of refugee status. Once a state
has formally verified refugee status, there is no basis to question the continuing
right of the refugee to live in that country for the duration of risk in his or her
country of origin.202
Second, refugees in receipt of “temporary protection” who have become de
facto settled in the host state203 are to be considered to be “résidant
régulièrement”:
[I]n all those articles the only concrete cases that could arise were cases
implying some degree of residence, if only temporary residence; and
temporary residence would be covered by the present wording, at least
as far as France was concerned . . . That was why he also considered, for
reasons of principle, that having abandoned the idea of “résidence habi-
tuelle,” and accepted the concept of “résidence régulière,” the French
delegation had conceded as much as it could.204
Indeed, the British representative, in attempting to translate the French con-
cept to English, proposed the phrase “lawfully resident (temporarily or
otherwise).”205 The American representative, however, argued that any
English language formulation that included the word “resident” would fail
accurately to capture the broad meaning conveyed by the French understand-
ing of “résidant.” In English, he suggested, the word “resident” would not

200
“In the articles in question, the term used in the French text had been ‘résidence habituelle’
which implied some considerable length of residence. As a concession, the French delegation
had agreed to substitute the words ‘résidence régulière’ which were far less restrictive in
meaning”: Statement of Mr. Juvigny of France, UN Doc. E/AC.32/SR.42, Aug. 24, 1950, at 12.
201
The French representative suggested that the refugee’s presence would have to be “more or
less permanent” to satisfy the third level of attachment: Statement of Mr. Juvigny of
France, ibid.
202
Goodwin-Gill and McAdam, Refugee in International Law, at 526; Edwards, “Article 17,”
at 964. While it is suggested by some that UNHCR recognition of status similarly renders
a refugee “lawfully staying” in a state party (see e.g. “The Michigan Guidelines on the Right
to Work,” 31 Michigan Journal of International Law 293 (2010), at [8]), this would only be
true if the state in which the refugee is present has consented formally or in practice to
recognize such decisions by the UNHCR.
203
“[T]hese guarantees [can] be invoked by the Convention refugees who are among the
temporarily protected persons only after a certain period when it becomes clear that return
is not imminent and that the country of refuge has become ‘home’ for the persons
concerned, at least for the time being”: Kälin, “Temporary Protection,” at 222. See also
S. Leckie and E. Simperingham, “Article 21,” in A. Zimmermann ed., The 1951 Convention
Relating to the Status of Refugees and its 1967 Protocol: A Commentary 1003 (2011), at
1015.
204
Statement of Mr. Juvigny of France, UN Doc. E/AC.32/SR.42, Aug. 24, 1950, at 15.
205
Statement of Sir Leslie Brass of the United Kingdom, ibid. at 29.

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 3 .1 attachment t o t he as ylum s ta te 215

encompass a temporary stay.206 It was therefore important to draft an English

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

206
“[I]n the light of the exposition given by the representative of France there might prove to
be a distinction of substance between the English and French texts . . . It appeared that
‘résidant régulièrement’ covered persons temporarily resident, except for a very short
period, whereas according to English law he understood the word ‘resident’ could not
apply to a temporary stay”: Statement of Mr. Henkin of the United States, ibid. at 14. It was
for this reason that the American representative objected to the British proposal, ibid. at
29, which he referred to as “a contradiction in terms”: Statement of Mr. Henkin of the
United States, ibid. at 29.
207
“[H]e did not understand the exact connotation of the French word ‘résidant,’ but
apparently it could be applied to persons who did not make their home in a certain
place but stayed there for a number of months. Such persons would apparently be ‘résidant
régulièrement’ but they would not, in the United States of America at least, be lawfully
resident. To be lawfully resident in a place, a man must make his home there; it need not be
his only home but it must be a substantial home”: Statement of Mr. Henkin of the United
States, ibid. at 26.
208
“The English text referred to refugees ‘lawfully in the territory’ while the French referred to
a refugee ‘régulièrement résidant,’ the literal English equivalent of the latter phrase having
a more restrictive application. Re-examining the individual articles, it was decided in most
instances that the provision in question should apply to all refugees whose presence in the
territory was lawful . . . In one case [the right to engage in wage-earning employment] the
Committee agreed that the provision should apply only to a refugee ‘régulièrement
résidant’ on the territory of a Contracting State. The English text adopted is intended to
approximate as closely as possible the scope of the French term”: “Report of the Ad Hoc
Committee on Refugees and Stateless Persons, Second Session,” UN Doc. E/1850, Aug. 25,
1950 (Ad Hoc Committee, “Second Session Report”), at 12.
209
“Report of the Style Committee,” UN Doc. A/CONF.2/102, July 24, 1951.
210
Ibid. at [5]. See also Grahl-Madsen, Status of Refugees II, at 351–352: “Against this
background it seems justified to give precedence to the French term and not to ponder
too much over the difference between the expressions ‘lawfully staying’ and ‘lawfully
resident’ . . . Both expressions apparently mean the same thing.”

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 216 3 e ntitlement under t he refugee c onventi on

system.211 It may, of course, be difficult in practical terms to pinpoint the precise

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

3.1.5 Durable Residence

A specific test of durable residence – three years’ residence – governs eligibility
for exemption from both requirements of legislative reciprocity217 and any
211
“Fulfilment of the requirement ‘lawfully staying’ does not depend on formal recognition of
refugee status”: J. Vedsted-Hansen, “Article 28,” in A. Zimmermann ed., The 1951
Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary 1177
(2011), at 1204. Indeed, it might logically be contended that a refugee is lawfully staying
where there has been a prolonged delay in reaching a decision on refugee status. The logic
of the acquisition of the rights associated with lawful stay in such circumstances is clear
from the decision of the Supreme Court of Ireland – in the case of an asylum-seeker whose
claim had been pending for more than eight years – that “in the circumstances where there
is no temporal limit on the asylum process, then the absolute prohibition on seeking of
employment . . . is contrary to the constitutional right to seek employment”: NVH
v. Minister for Justice and Equality, [2017] IESC 35 (Ir. SC, May 30, 2017), at [20]–[21].
212
Goodwin-Gill and McAdam suggest that as a practical matter, “evidence of permanent,
indefinite, unrestricted or other residence status, recognition as a refugee, issue of a travel
document, or grant of a re-entry visa, will raise a strong presumption that the refugee
should be considered as lawfully staying in the territory of a contracting State. It would
then fall to that State to rebut the presumption by showing, for example, that the refugee
was admitted for a limited time and purpose, or that he or she is in fact the responsibility of
another State”: Goodwin-Gill and McAdam, Refugee in International Law, at 526.
213
In an era when “three months seem[ed] to be almost universally accepted as the period for
which an alien may remain in a country without needing a residence permit,” Grahl-
Madsen suggested “if he is in possession of a residence permit (or its equivalent) entitling
him to remain there for more than three months, or if he actually is lawfully present in
a territory beyond a period of three months after his entry (or after his reporting himself to
the authorities, as the case may be)”: Grahl-Madsen, Status of Refugees II, at 353–354.
214
See Chapter 3.1.3 at note 173.
215
Refugee Convention, at Art. 34. See generally Chapter 7.4.
216
This framing is endorsed in Edwards, “Article 17,” at 964.
217
Refugee Convention, at Art. 7(2).

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 3. 1 at ta ch m e nt t o t he a s yl u m s ta te 217

restrictive measures imposed on the employment of aliens.218 In calculating

the three years, it is important to recall that the drafters defined “résidence”
broadly, and did not equate it with such legal notions as domicile or permanent
resident status.219 But even this broad understanding of residence was under-
stood to require officially sanctioned, ongoing presence in the state party.220 It
is therefore doubtful that a period of residence should be calculated to include
periods of illegal presence.221 It is, on the other hand, reasonable to take the
view that “[s]hort absences from the contracting State of residence do not
interrupt the [residence] period.”222

Refugee Convention, Art. 10 Continuity of Residence

1. Where a refugee has been forcibly displaced during the Second
World War and removed to the territory of a Contracting State,
and is resident there, the period of such enforced sojourn shall be
considered to have been lawful residence within that territory.
2. Where a refugee has been forcibly displaced during the Second
World War from the territory of a Contracting State and has,
prior to the date of entry into force of this Convention, returned
there for the purpose of taking up residence, the period of
residence before and after such enforced displacement shall be
regarded as one uninterrupted period for any purposes for which
uninterrupted residence is required.
In line with their focus on factual continuity of residence rather than
formalism, the drafters made specific provision to accommodate the predica-
ment of persons forcibly deported during the Second World War. Those
refugees who elected to remain in the territory of the state to which they had
been deported would be considered to have been resident in that country
during the period of enforced presence.223 Even though the state to which
deportation had been effected may not have legally consented to their entry,

218
Ibid. at Art. 17(2)(a). An earlier exemption from alien employment restrictions is required
in the case of a refugee who was already exempt from such requirements at the time the
Convention entered into force for the state party; or where the refugee is married to, or the
parent of, a national of the state party: ibid. at Art. 17(2).
219
See Chapter 3.1.4, note 207. 220 Ibid. at note 127.
221
But see A. Skordas, “Article 7,” in A. Zimmermann ed., The 1951 Convention Relating to the
Status of Refugees and its 1967 Protocol: A Commentary 715 (2011) (Skordas, “Article 7”), at 750
(“The three-year period begins from the moment at which the refugee finds him- or herself in
the host country, even if he or she has entered illegally”). Even the more arguable claim of
Edwards – that “residence” begins with the lodging of an asylum application (see Edwards,
“Article 17,” at 969) – is not self-evidently correct since the drafters viewed the satisfaction of
requirements to have access to status verification as giving rise to lawful “presence,” not lawful
“stay” (“résidence” in the French text): see Chapter 3.1.3 at notes 129–130. It is less clear that
illegal presence is necessarily to be excluded from the notion of habitual residence: see note 192.
222
Skordas, “Article 7,” at 750. 223 Refugee Convention, at Art. 10(1).

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 218 3 e n t i t l e m en t u n d e r t h e r e f u g e e co n v e n t i o n

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

224
Statement of the Chairman, Mr. Chance of Canada, UN Doc. E/AC.32/SR.22, Feb. 2, 1950,
at 7.
225
“It presumably was not intended to refer to persons displaced by the Government of the
country on account of their suspicious or criminal activities, but only to persons forcibly
displaced by enemy or occupying authorities”: Statement of Mr. Perez Perozo of
Venezuela, UN Doc. E/AC.32/SR.35, Aug. 15, 1950, at 12.
226
Refugee Convention, at Art. 10(2). 227 Robinson, History, at 96.
228
The restrictive language was adopted notwithstanding a plea to extend the benefit of Art.
10 to all refugees. “[I]t was an important matter . . . to be credited, as constituting
residence, with the time spent . . . in enforced displacement, or with the period before or
after such displacement, in cases where the refugee had returned to his receiving country
to re-establish his residence there. The latter provision was all the more useful in view of
the fact that, under certain national legislation, the period of residence normally had to be
extended if residence was interrupted. Nevertheless, the provisions of article [10(2)]
merely remedied an occasional situation caused by the second world war, without
providing any [general] solution”: Statement of Mr. Rollin of the Inter-Parliamentary
Union, UN Doc. A/CONF.2/SR.10, July 6, 1951, at 7.
229
The article was arguably obsolete even at the time the Refugee Convention came into
force, as nearly a decade had elapsed since the end of the Second World War and few, if
any, rights were conditioned on continuous residence of more than five years.
230
See Chapter 3.2.3 at note 310 ff.
231
Skordas argues that time spent in a country of first arrival pending assignment to another
country for status verification should be included in the period of residence: Skordas,
“Article 7,” at 750. While he forthrightly acknowledges that this is an entirely “teleological

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 3.2 ge n e r a l s t a n d a r d o f t r e a t m e n t 219

In sum, the general language of the five levels of attachment facilitates

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

3.2 The General Standard of Treatment

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

interpretation [that would enable refugees] . . . to add the time they spent in different
countries”: ibid., such an approach would be an interruption of presence beyond the
refugee’s control and hence consonant with the spirit of Art. 10. As Schmahl observes,
“Art. 10, para. 2 wants to mitigate the results of an interruption of residence not due to the
free will of the refugee”: S. Schmahl, “Article 10,” in A. Zimmermann ed., The 1951
Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary 805
(2011), at 813.
232
See Chapter 3.1. 233 See Chapter 3.3. 234 Refugee Convention, at Art. 7(1).
235
Objection has been taken to referring to this as the Convention’s “minimum” standard on
the grounds that contemporary extrinsic norms applicable to aliens generally may at times
require more robust protection than cognate provisions of the Convention: see Skordas,
“Article 7,” at 719, 733. While this is of course sometimes true (see Chapter 1.4.5), it

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 220 3 e n t i t l emen t un der the refu gee c onvention

Convention duties that are not framed to require an exceptional standard of

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

remains that Art. 7 does set the residual minimum standard for the treatment of refugees,
albeit not necessarily a minimal standard.
236
See Chapter 3.2.1. 237 See Chapter 1.4.5. 238 See Chapter 1.5.4.
239
See Chapter 1.1 at note 12. The International Law Commission has recommended that in
addition to the state of nationality, an asylum state also be allowed to exercise diplomatic
protection in relation to “recognized” refugees who are “lawfully and habitually resident”:
International Law Commission, “Draft Articles on Diplomatic Protection,” UN Doc. A/
61/10 (2006), at Art. 8. Critically, however, diplomatic protection may not be exercised in
respect of “an injury caused by an internationally wrongful act of the State of nationality of
the refugee”: ibid. at Art. 8(3). And since the asylum state cannot of course seek a remedy
against itself, the two states most likely in practice to infringe a refugee’s rights – the state
of origin and the state of refuge – remain beyond the reach of aliens law.
240
“The fate of the individual is worse than secondary in this scheme: it is doctrinally non-
existent, because the individual, in the eyes of traditional international law, like the alien of
the Greek city-State regime, is a non-person”: R. Lillich, The Human Rights of Aliens in
Contemporary International Law (1984) (Lillich, Rights of Aliens), at 12.

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 3.2 general standard of treatment 221

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

241
While no longer sustainable in view of the obligations assumed by adherence to the United
Nations Charter and subsequent human rights accords, the classical predicament of
persons without a nationality is nicely captured in L. Oppenheim, International Law:
A Treatise (1912), at 369: “It is through the medium of their nationality only that
individuals can enjoy benefits from the existence of the Law of Nations . . . Such individ-
uals as do not possess any nationality enjoy no protection whatever, and if they are
aggrieved by a State they have no way to redress, there being no State that would be
competent to take their case in hand. As far as the Law of Nations is concerned, apart from
morality, there is no restriction whatever to cause a State to abstain from maltreating to
any extent such stateless individuals.”
242
See Chapter 1.3 at note 24 ff.
243
Skordas correctly observes that Art. 7 “links the 1951 Convention with external legal
regimes”; “[t]hough it seems rather neglected, old-fashioned, and awkwardly worded, Art.
7 is an important provision of the 1951 Convention because it enables the co-evolution of
the refugee regime with aliens law and international human rights law”: Skordas, “Article
7,” at 719, 753. Art. 5 of the Refugee Convention (see Chapter 1.4.5) similarly requires that
“rights and benefits” granted to refugees apart from the Refugee Convention may not be
impaired.
244
Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.23, Feb. 3, 1950, at 4.
245
“Report of the Ad Hoc Committee on Statelessness and Related Problems,” UN Doc. E/
1618, Feb. 17, 1950 (Ad Hoc Committee, “First Session Report”), at Annex II. Even as the
attitude of states toward the timing and scope of exemption from reciprocity hardened
over the course of the drafting process, there was no weakening of this basic commitment
to comprehensive application of the general standard of treatment: see Refugee
Convention, at Art. 7(5) (“The provisions of paragraphs 2 and 3 apply both to the rights
and benefits referred to in articles 13, 18, 19, 21, and 22 of this Convention and to rights
and benefits for which this Convention does not provide [emphasis added]”).
246
It has been suggested that some possible sources of rights for aliens in general, including in
particular migration laws and treaties, are excluded from the ambit of Art. 7: Skordas,
“Article 7,” at 737, 742–743. While such agreements cannot of course detract from the

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 222 3 e n t i t l e m e n t u nd er t h e r ef u g ee c o n v e n t i o n

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

rights otherwise available to refugees, neither is there any reason to deny refugees
whatever benefits such laws and treaties might provide to aliens generally. See also
Refugee Convention, at Art. 5.
247
See Chapter 1.1 at notes 5–7. 248 See Chapter 1.5.4.
249
See e.g. Statement of Mr. Cuvelier of Belgium, UN Doc. E/AC.32/SR.10, Jan. 24, 1950, at 5;
Statement of Mr. Larsen of Denmark, ibid.; and Statement of the International Refugee
Organization, in United Nations, “Compilation of the Comments of Governments and
Specialized Agencies on the Report of the Ad Hoc Committee on Statelessness and Related
Problems,” UN Doc. E/AC.32/L.40, Aug. 10, 1950 (United Nations, “Compilation of
Comments”), at 34–35: “The main reason why the Ad Hoc Committee decided to change
the wording of the Article relating to reciprocity . . . was that it did not wish the Article to
relate to treaty provisions conferring preferential treatment on aliens of a particular
nationality. It is certain that since 1933 there has been a general development in the
granting of preferential treatment to aliens of a particular nationality on the basis of
customs, political and economic associations founded on geographical or historical
connections. It may be held that some qualification should be made to the original formula
concerning reciprocity, as included in the Conventions of 1933 and 1938, in order to
overcome any misinterpretation which may lead to the belief that an article concerning the
exemption from reciprocity might have as a consequence the legal entitlement for refugees
to the benefits of preferential treatment.”
250
“[C]ountries such as Belgium, which were linked to certain other countries by special
economic and customs agreements, did not accord the same treatment to all foreigners.
Belgium, for example, placed nationals of the Benelux countries for certain periods on
a quasi-equal footing with Belgian citizens”: Statement of Mr. Cuvelier of Belgium, UN
Doc. E/AC.32/SR.10, Jan. 24, 1950, at 5. Mr. Cuvelier subsequently repeated “that refugees
could not benefit from reciprocal treatment in cases where the right or privilege in
question was granted solely as a result of an international agreement between two
countries”: Statement of Mr. Cuvelier of Belgium, UN Doc. E/AC.32/SR.23, Feb. 3,
1950, at 4. The Israeli delegate thereupon suggested, and the Committee agreed, that
“that interpretation should be placed on the record”: Statement of Mr. Robinson of Israel,
ibid. As helpfully clarified by the British delegate, refugees cannot automatically claim the
benefit of “a special treaty between two countries”: Statement of Sir Leslie Brass of the
United Kingdom, ibid. Thus it was agreed that “The Article will confer these rights on
refugees; they would otherwise be prevented from having them in view of their lack of
nationality. The Article is not intended to relate to rights specifically conferred by bilateral
treaty and which are not intended to be enjoyed by aliens generally”: “Comments of the
Committee on the Draft Convention,” UN Doc. E/AC.32/L.32/Add.1, Feb. 10, 1950, at 3.
251
Special guarantees of reciprocal treatment, such as those negotiated by partner states in an
economic or customs union, do not automatically accrue to refugees. The benefits of such

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 3.2 g en e r a l s t a n d a r d o f t r e a t m e n t 223

discussion to the issue of truly special agreements benefitting the nationals of

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

forms of diplomatic reciprocity are normally extended to refugees only where the Refugee
Convention stipulates that refugees are to be treated either as “most-favored foreigners,”
or on par with the nationals of the asylum state. “[A] distinction should be drawn between
the clause relating to exemption from reciprocity and the provisions of some articles
which specified whether refugees should be accorded the most favorable treatment or be
subject to the ordinary law. Where such provisions were set forth in an article there was no
need to invoke the clause on exemption from reciprocity. It was obvious, in fact, that
where refugees were accorded the most favorable treatment there would be no point in
invoking the clause respecting exemption from reciprocity . . . The paragraph on exemp-
tion from reciprocity would apply only where articles failed to define the treatment
accorded to refugees”: Statement of Mr. Giraud of the Secretariat, UN Doc. E/AC.32/
SR.11, Jan. 25, 1950, at 6. See generally Chapter 3.3.1.
252
For example, the French representative asked, “If the French Government and a small
State concluded a treaty providing for certain rights to be granted to Frenchmen, and the
same rights to be granted to nationals of that State in France, was the advantage granted to
the citizens of a single country to be accorded by France to all refugees? . . . Was it when
there was reciprocal treatment with one or two other States or when there was such
treatment with a very large number of other States? . . . France was prepared to give
refugees the treatment given to aliens generally, but did not intend to give better treatment
to refugees than that given to the majority of aliens”: Statement of Mr. Juvigny of France,
UN Doc. E/AC.32/SR.34, Aug. 14, 1950, at 11–12.
253
“It was also necessary to cover cases where reciprocity treaties existed with many countries
and were hence equivalent to legislative reciprocity. The representative of France had
raised the question of how many such treaties must exist, whether 5 or 50. He could not
himself suggest a draft but the Drafting Committee would have to, so long as it was clear
what was desired”: Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/
SR.34, Aug. 14, 1950, at 16. In fact, the issue was resolved neither by the Drafting
Committee, nor by any subsequent body that participated in the preparation of the
Refugee Convention.
254
Two commentators object to this plain meaning approach to the identification of the
“aliens generally” benchmark (“the majority of aliens,” per the French representative: see
note 252). Grahl-Madsen opines that “[i]t would have been more relevant to speak of
‘aliens belonging to the majority of states.’ It is entirely feasible that ‘the majority of aliens’
belong to a single foreign State with which a treaty of favourized treatment exists; in spite
of their number those foreign nationals would not be ‘aliens generally’”: A. Grahl-Madsen,
Commentary on the Refugee Convention 1951 (1963, pub’d. 1997) (Grahl-Madsen,
Commentary), at 29. While this approach resonates with the question put by the
American drafter (see note 253), it seems an odd standard. If, for example, there were
aliens from thirty countries in a given state, and a particular right inhered in those from
twenty of those countries but who made up collectively only 10 percent of the alien

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 224 3 e ntitlement un der the refugee c onvention

3.2.1 Assimilation to Aliens

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

population, that right would, under Grahl-Madsen’s approach, be said to inhere in “aliens
generally” – despite it being unavailable to 90 percent of non-citizens. This seems
a proposition difficult to square with the plain meaning of “generally.” Conversely,
Skordas has objected to the notion of a “numerical-quantitative element” of any kind,
arguing instead that “[i]t is more appropriate to define the ‘generality’ of treatment on the
basis of the scope of the relevant provisions ratione personae. The meaning of ‘general
treatment’ is not in fact determined by the 1951 Convention itself, but by the legal
instruments and norms themselves that are potentially applicable to aliens or refugees”:
Skordas, “Article 7,” at 736. Not only does this seem to make the exogenous component of
Art. 7(1) redundant in view of Art. 5 (if a given right is generally available to non-citizens
ratione personae then it accrues to them, including refugees: see Chapter 1.4.5), but if this
approach were adopted, refugees could easily be denied the benefit of rights available to
most non-citizens. For example, in an EU state where other EU nationals make up the
majority of the state’s non-citizen population, EU rights – specifically directed ratione
personae only to EU nationals – would not accrue under the “aliens generally” standard.
On the other hand, a quantitative approach to “aliens generally” would entitle refugees to
treatment in line with that provided to the (quantitative) clear majority of non-citizens,
that is the EU standard of treatment.
255
The exception is the right to freedom of movement set by Art. 26, which requires only that
refugees be allowed to “choose their place of residence and to move freely within [the state
party’s] territory, subject to any regulations applicable to aliens generally in the same
circumstances”: Refugee Convention, at Art. 26. While there is no textual requirement to
grant refugees internal mobility rights on terms “as favorable as possible,” whatever
constraints are to be imposed on freedom of movement must derive from “regulations,”
not simply from the exercise of bureaucratic or other discretion or directive. See
Chapter 5.2.

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 3.2 g en e r a l s t a n d a r d o f t r e a t m e n t 225

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

3.2.2 Exemption from Reciprocity

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

256
Refugee Convention, at Arts. 13, 18, 19, 21, and 22.
257
The matter arose in the context of a French criticism that an American proposal to grant
refugees “the most favorable treatment possible and, in any event, not less favorable than
that given to foreigners generally as regards housing accommodations” was unnecessary in
view of the duty of non-discrimination. In response, the Belgian delegate “pointed out that
the United States text was not redundant, inasmuch as it required the High Contracting
Parties not merely not to discriminate against refugees, but to ensure them ‘the most
favorable treatment possible”’: Statement of Mr. Cuvelier of Belgium, UN Doc. E/AC.32/
SR.24, Feb. 3, 1950, at 13. The impermissibility of discrimination between refugees and
other non-citizens is nonetheless clear: Skordas, “Article 7,” at 736.
258
“[C]ontracting parties are . . . expected to initiate administrative procedures or studies for
exploring the possibilities of according, or extending at least some additional rights and
benefits to refugees, even if they are not legally obliged to do so”: Skordas, “Article 7,” at 752.
259
Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.13, Jan. 26, 1950, at
14. Under this intermediate standard, a government should at least consider providing
preferential treatment for refugees. See also Statement of Mr. Kural of Turkey, ibid. at 15.
260
United Nations, “Compilation of Comments,” at 40.

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 226 3 e n t i t l emen t un der the refu gee c onvention

to refugees who do not fulfil the conditions provided for in

paragraphs 2 and 3.
5. The provisions of paragraphs 2 and 3 apply both to the rights and
benefits referred to in articles 13, 18, 19, 21 and 22 of this
Convention and to rights and benefits for which this
Convention does not provide.

Under traditional notions of aliens law, the very existence of relevant rights for
aliens can depend on the efforts of the refugee’s state of nationality.261 Each state
was entitled to determine for itself whether any rights would be granted to non-
citizens beyond the limited range of rights guaranteed to all aliens under general
principles of law.262 While some countries routinely granted aliens most of the
rights extended to their own citizens, many conditioned the rights of non-citizens
on reciprocity: put simply, aliens would receive from a host state only such rights as
their state of origin was prepared to grant in its territory to citizens of the host state.
There is, of course, no reason to expect the states from which refugees flee to
agree to reciprocity as a means of promoting the well-being of their citizens
who seek refuge abroad. Before the advent of refugee law, the severing of the
bond between refugees and their state of citizenship therefore often left
refugees with no more than bare minimum rights in those states that grounded
their treatment of foreigners in the existence of reciprocity. This dilemma led
the League of Nations to stress the humanitarian tragedy that would ensue if
refugees were subjected to the usual rules. The League also urged that there was

261
“At the root of the idea of the juridical status of foreigners is the idea of reciprocity. The law
considers a foreigner as a being in normal circumstances, that is to say, a foreigner in
possession of a nationality. The requirement of reciprocity of treatment places the national
of a foreign country in the same position as that in which his own country places foreigners”:
United Nations, “Memorandum by the Secretary-General to the Ad Hoc Committee on
Statelessness and Related Problems,” UN Doc. E/AC.32/2, Jan. 3, 1950 (Secretary-General,
“Memorandum”), at 28. “Reciprocity refers to the interdependence of obligations assumed by
participants within the legal schemes created by human rights law . . . In other words,
obligations are reciprocal if their creation, execution and termination depend on the impos-
ition of connected obligations on others. International law, being a system based on the formal
equality and sovereignty of States, has arisen largely out of the exchange of reciprocal rights
and duties between States”: R. Provost, “Reciprocity in Human Rights and Humanitarian
Law,” (1994) 65 British Yearbook of International Law 383 (Provost, “Reciprocity”), at 383.
262
These included recognition of the alien’s juridical personality, respect for life and physical
integrity, and personal and spiritual liberty within socially bearable limits. Aliens were afforded
no political rights, though resident aliens were subject to reasonable public duties. In the
economic sphere, there was a duty of non-discrimination among categories of aliens allowed
to engage in commercial activity. There was also an obligation to provide adequate compen-
sation for denial of property rights where aliens were allowed to acquire private property.
Finally, aliens were to be granted access to a fair and non-discriminatory judicial system to
enforce their basic rights. See generally A. Roth, The Minimum Standard of International Law
Applied to Aliens (1949) (Roth, Minimum Standard), at 134–185; and Chapter 1.1.

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 3.2 g en e r a l s t a n d a r d o f t r e a t m e n t 227

no practical purpose served by the application of rules of reciprocity to

refugees:
[R]efusal to accord national treatment to foreigners in the absence of
reciprocity is merely an act of mild retaliation. The object [of reciprocity]
is to reach, through the person of the nationals concerned, those countries
which decline to adopt an equally liberal regime . . . But what country or
which Government can be reached through the person of a refugee? Can
the refugee be held responsible for the legislation of his country of origin?
Clearly, the rule of reciprocity, if applied to refugees, is pointless and
therefore unjust. The injury caused to refugees by the application of this
rule is substantial since the rule constantly recurs in texts governing the
status of foreigners. Since the condition of reciprocity cannot be satisfied,
refugees are denied the enjoyment of a whole series of rights which are
accorded in principle to all foreigners.263
State approaches to reciprocity fall into two broad categories.264 States
embracing the theory of “diplomatic reciprocity” grant rights to non-citizens
only to the extent that such rights are provided for by interstate agreement. The
alternative legislative or de facto reciprocity approach conditions non-citizen
rights on the existence of reciprocal domestic laws (or sometimes practice) in
the alien’s country of origin. A critical distinction between the two approaches
is that whereas diplomatic reciprocity assumes no non-citizen rights beyond
what has been negotiated, states committed to legislative or de facto reciprocity
“usually grant foreigners the same rights as their subjects, reserving however
the power to apply retorsion to the nationals of countries where aliens gener-
ally or their subjects alone [were] handicapped by the particular disability in
question.”265

263
Secretary-General, “Memorandum,” at 29, citing statement of the French government
when submitting the 1933 Refugee Convention for legislative approval.
264
The definition of recognized approaches to reciprocity is not without confusion. Borchard,
for example, identifies only two systems, namely diplomatic and legislative reciprocity:
E. Borchard, The Diplomatic Protection of Citizens Abroad (1915) (Borchard, Diplomatic
Protection), at 71–72. In contrast, the document prepared by the United Nations
Department of Social Affairs, “A Study of Statelessness,” UN Doc. E/1112, Feb. 1, 1949
(United Nations, “Statelessness”), at 17–18, which served as the basis for drafting of the
Refugee Convention, argues that there are two approaches to reciprocity, namely diplo-
matic and de facto. While de facto reciprocity as defined by the UN Study and legislative
reciprocity as defined by Borchard are comparable in that the referent for duties owed to
aliens is a domestic, rather than an international standard, it is clear that a number of the
Refugee Convention’s drafters insisted upon the relevance of the dichotomy between
reciprocity systems based on domestic legislation, as contrasted with those based on
domestic practice, in the partner state. See in particular comments of Mr. Perez Perozo
of Venezuela, UN Doc. E/AC.32/SR.11, Jan. 25, 1950, at 3; and the exchange between the
representatives of the Netherlands and Belgium at the Conference of Plenipotentiaries,
UN Doc. A/CONF.2/SR.24, July 17, 1951, at 22.
265
Borchard, Diplomatic Protection, at 72.

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 228 3 e n t i t l e m e n t u nd er th e r ef u g e e c o n v e n t i o n

The predecessor 1933 Refugee Convention exempted refugees from all

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

266
“The enjoyment of certain rights and the benefit of certain favours accorded to foreigners
subject to reciprocity shall not be refused to refugees in the absence of reciprocity”:
Convention relating to the International Status of Refugees, 159 LNTS 3663, done Oct.
28, 1933, entered into force June 13, 1935 (1933 Refugee Convention), at Art. 14.
267
See Chapter 3.2.
268
“The enjoyment of the rights and favours accorded to foreigners subject to reciprocity
shall not be refused to refugees (and stateless persons) in the absence of reciprocity”:
Secretary-General, “Memorandum,” at 28.
269
“Denmark used reciprocity simply as a means to ensure that Danes in foreign countries
received the privileges that were granted to nationals of those countries in Denmark. In
such cases he felt that refugees should be granted the same privileges although there could
be no question of reciprocity”: Statement of Mr. Larsen of Denmark, UN Doc. E/AC.32/
SR.36, Aug. 15, 1950, at 18–19.
270
“[I]n the United States of America as in the United Kingdom, problems of reciprocity did
not arise but . . . he, too, had no objection to the inclusion of the article for the sake of
countries differently situated . . . The main object was to ensure that aliens should not be
penalised because they had no nationality and that where privileges were generally enjoyed
by aliens, through treaties or in any other way, refugees should have the same privileges”:
Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.34, Aug. 14, 1950, at
15–16.
271
Only Bulgaria, France, and Italy did not enter a reservation or qualification to Art. 14 of
the 1933 Convention: United Nations, “Statelessness,” at 93–97. It is noteworthy that
Bulgaria and Italy routinely assimilated aliens to foreigners in any event, and France relied
on diplomatic reciprocity (thereby allowing it to reserve a category of privileged aliens,

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 3 .2 general standa rd of trea tment 229

an alternative formulation premised on the denial to refugees of all rights

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

exemption from reciprocity notwithstanding). The article was not in force for any
legislative or de facto reciprocity state where it would clearly have had the greatest impact.
272
“The enjoyment of certain rights and the benefit of certain privileges accorded to aliens
subject to reciprocity shall not be refused to refugees in the absence of reciprocity in the
case of those enjoying them at the date of signature of the present Convention. As regards
other refugees, the High Contracting Parties undertake to give them the benefit of these
provisions upon completion of [a certain period of] residence”: France, “Proposal for
a Draft Convention,” UN Doc. E/AC.32/L.3, Jan. 17, 1950 (France, “Draft Convention”),
at 4.
273
Only refugees who enjoyed exemption from reciprocity under the 1933 Convention or
another pre-1951 instrument are entitled immediately to be assimilated to the ranks of
privileged foreigners: Refugee Convention, at Art. 7(3).
274
See Chapter 3.2.1.
275
While the text of the articles speaks only to “legislative reciprocity,” it is clear from the
drafting history that this term was used in contradistinction to “diplomatic reciprocity.”
As observed by its Belgian co-sponsor, the term “legislative reciprocity” “was emphatically
not designed to exclude de facto reciprocity”: Statement of Mr. Herment of Belgium, UN
Doc. A/CONF.2/SR.24, July 17, 1951, at 22. There is a logical basis for this assertion,
grounded in differing ways of categorizing approaches to reciprocity. See Chapter 3.2.
276
The Ad Hoc Committee agreed that “a legal obligation in this sense would be acceptable only
in regard to refugees who had resided in the country for a given period”: Ad Hoc Committee,
“Second Session Report,” at 12. Austria was one of the few states present that relied primarily
on legislative reciprocity. Because it was a country of first asylum for large numbers of refugees
who would ultimately be granted resettlement elsewhere, a three-year delay in according
exemption from reciprocity effectively met its most pressing concerns. See Comments of the
Government of Austria, in United Nations, “Compilation of Comments,” at 5, 32.
277
The determination of when the requirement of “three years’ residence” has been satisfied
should be made in accordance with the spirit of Art. 10 (“continuity of residence”): see
Chapter 3.1.5. Skordas makes the intriguing argument that once the three-year deferral

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 230 3 e ntitlement under the refugee c onvention

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

period has been satisfied in one state party, any other state party in which the refugee may
reside must also exempt that refugee from its requirements of legislative reciprocity:
Skordas, “Article 7,” at 751. While the language (“in the territory of the Contracting
States”) might justify that conclusion, there is no support in the drafting record for this
broad scope of application.
278
But “paragraph 2 of article [7] must be interpreted in the light of paragraph 1”: Statement
of Sir Leslie Brass of the United Kingdom, UN Doc. E/AC.32/SR.41, Aug. 23, 1950, at 7. As
such, if and when rights formally subject to reciprocity are in fact generally enjoyed by
most non-citizens in a given country, refugees must receive the benefit of these rights as
well: see Chapter 3.2.1. Thus, if for example the majority of non-citizens in a given country
are European Union nationals refugees must be assimilated to EU nationals for purposes
of rights allocation.
279
“According to [the draft of Art. 7(3)] . . . certain refugees would continue to enjoy the
reciprocity which they had previously enjoyed; that included the legislative reciprocity
mentioned in the second paragraph, as well as diplomatic and de facto reciprocity. On the
other hand, new refugees would . . . enjoy exemption from reciprocity only after a period
of three years’ residence in the receiving country. He appreciated the reasons for which
certain States felt obliged to limit the rights of new refugees in that way, but pointed out
that there were other States which visualized the possibility of extending the idea of
reciprocity even to non-statutory refugees”: Statement of Baron van Boetzelaer of the
Netherlands, UN Doc. A/CONF.2/SR.24, July 17, 1951, at 21–22.
280
“Each Contracting State shall continue to accord to refugees the rights and benefits to
which they were already entitled, in the absence of reciprocity, at the date of entry into
force of this Convention for that State”: Refugee Convention, at Art. 7(3).
281
“The Contracting States shall consider favourably the possibility of according to refugees,
in the absence of reciprocity, rights and benefits beyond those to which they are entitled
according to paragraphs 2 and 3, and to extending exemption from reciprocity to refugees
who do not fulfil the conditions provided for in paragraphs 2 and 3”: Refugee Convention,
at Art. 7(4). The Ad Hoc Committee had “expressed the hope that States would give
sympathetic consideration to extending rights, as far as possible, to all refugees without

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 3.2 general standard of treatmen t 231

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

regard to reciprocity, particularly where the rights have no relation to the requirements of
residence, as for example, compensation for war damages and persecution”: Ad Hoc
Committee, “Second Session Report,” at 11–12.
282
“[T]he [Ad Hoc] Committee expressed the hope that states would give sympathetic
consideration to extending rights, as far as possible, to all refugees without regard to
reciprocity, particularly where the rights have no relation to the requirements of residence.
This ‘hope’ was transformed by the Conference [of Plenipotentiaries] into a special clause
which must have more meaning than ‘hope.’ It is a recommendation to the Contracting
States . . . In other words, a state cannot be forced to accord these rights, but there must be
a well-founded reason for refusing their accordance”: Robinson, History, at 88–89.
283
“It is only a recommendation, but imposes nevertheless a mandatory obligation to
consider favourably the granting of wider rights and benefits”: Weis, Travaux, at 57.
284
Robinson, History, at 89.
285
This is certainly the case where the rights in question are themselves guaranteed by
international law. For example, the UN Human Rights Committee has expressed the
view that “the provisions in [Azerbaijan’s] legislation providing for the principle of
reciprocity in guaranteeing Covenant rights to aliens are contrary to articles 2 and 26 of
the Covenant”: “Concluding Observations of the Human Rights Committee: Azerbaijan,”
UN Doc. CCPR/CO/73/AZE, Nov. 12, 2001, at [20]. An analysis of the role of reciprocity
in international human rights law asserts the potential value of reciprocity in the context of
a system which still lacks a centralized enforcement mechanism. It nonetheless insists that
countermeasures must be carefully targeted, lest the goals of human rights law be
undermined. “At a general level, the notion of enforcing human rights law through
disregard for its norms seems incompatible with this rationale, indeed, the raison d’être,
of that body of law . . . [A] mechanism that would permit infringements of human rights to
be echoed by further infringements of human rights would undoubtedly undermine the
structure of human rights as a body of compulsory norms limiting the actions of the State”:
Provost, “Reciprocity”, at 444–445.
286
See Chapter 1.5.5 at note 453.
287
Whether preferred rights secured by special forms of diplomatic reciprocity are equally
vulnerable to attack on the basis of the duty of non-discrimination is less clear. Where
enhanced rights are granted only to citizens of those states with which the asylum country

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Committee, “[t]he purpose of making . . . rights subject to reciprocity was to

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

3.2.3 Exemption from Insurmountable Requirements

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

is linked in a form of political or economic union, for example, this may be said to reflect
an effective assimilation of those aliens to the political or economic community of the
partner state. The non-discrimination analysis ought therefore to focus on whether the
rights in question can be said to reflect the unique abilities and potentialities of members
of a shared political and economic community. See Chapter 1.5.5 at note 448 ff.
288
Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.23, Feb. 3, 1950, at 2.
289
See text at note 263. 290 See Chapter 1.5.5 at note 484 ff.
291
Refugee Convention, at Arts. 13, 18, 19, 21, and 22. 292 Ibid. at Art. 26.
293
Ibid. at Arts. 15, 17. Comparable phrasing is employed to define the duty of tax equity in
Art. 29 (“[no] taxes . . . other or higher than those which are . . . levied on their nationals in
similar situations”).

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 3.2 ge n e r a l s t a n d a r d o f t r e a t m e nt 233

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

294
Ad Hoc Committee, “Second Session Report,” at 15.
295
Proposal of the Chairman, Mr. Larsen of Denmark, UN Doc. E/AC.32/SR.36, Aug. 15,
1950, at 9; and Proposal of Mr. Robinson of Israel, UN Doc. E/AC.32/SR.42, Aug. 24, 1950,
at 23.
296
Statements of Mr. Herment of Belgium and Mr. Henkin of the United States, UN Doc. E/
AC.32/SR.42, Aug. 24, 1950, at 24.
297
Proposal of Australia, UN Doc. A/CONF.2/19, July 3, 1951.
298
See e.g. criticisms voiced by Mr. Herment of Belgium and Mr. von Trutzschler of the
Federal Republic of Germany, UN Doc. A/CONF.2/SR.6, July 4, 1951, at 5–6.
299
Statement of Mr. Fritzler of Austria, ibid. at 6. “Acceptance of any part of the Australian
revision would have, in effect, rendered meaningless the various protections granted to
refugees when fleeing for their lives”: G. Ben-Nun, “The Israeli Roots of Article 3 and
Article 6 of the 1951 Refugee Convention,” (2014) 27(1) Journal of Refugee Studies 101,
at 117.

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conditions of his or her sojourn or residence.300 As Grahl-Madsen observed,

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

300
The United Kingdom representative sought to restrict the comparison to only “require-
ments as to length and conditions of sojourn or residence,” but withdrew his proposal in
the face of substantial disagreement. See Statements of Mr. Hoare of the United Kingdom,
UN Doc. A/CONF.2/SR.34, July 25, 1951, at 16; and UN Doc. A/CONF.2/SR.35, July 25,
1951, at 36.
301
Grahl-Madsen, Commentary, at 23.
302
“To give an example, it might be that a refugee would wish to procure a document allowing
him to exercise a profession or ply a trade. The element of sojourn or residence would
count, of course, but other considerations might also come into play, such as the kind of
trade or profession the refugee wished to engage in”: Statement of Mr. Herment of
Belgium, UN Doc. A/CONF.2/SR.34, July 25, 1951, at 17.
303
Statement of Mr. Hoare of the United Kingdom, ibid. at 17. 304 Ibid. at 16.
305
Statement of Mr. Hoare of the United Kingdom, UN Doc. A/CONF.2/SR.35, July 25, 1951,
at 35.
306
“[T]he treatment of foreigners was not necessarily uniform, but would depend in many
instances upon the individual’s circumstances and claims to consideration”: Statement of
Mr. Hoare of the United Kingdom, UN Doc. A/CONF.2/SR.3, July 3, 1951, at 22.
307
Statement of Mr. Hoare of the United Kingdom, UN Doc. A/CONF.2/SR.35, July 25, 1951,
at 35.
308
See Chapter 1.5.5.

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 3.2 ge n e r a l s t a n d a r d o f t r e a t m e nt 235

insurmountable requirements. Even as governments insisted on the authority to

require refugees to qualify for rights and benefits on the same terms as other aliens,
they recognized that the very nature of refugeehood – for example, the urgency of
flight, the severing of ties with the home state, and the inability to plan for
relocation – may sometimes make compliance with the usual criteria a near-
impossibility:
For example, in some eastern European countries a person had to fulfil
certain qualifications relating to residence in order to be eligible for social
security. The definition . . . was too rigid, and would weaken the
Convention . . . The special circumstances of refugees must be recognized.309
The validity of this concern was endorsed without opposition, leading the
Conference of Plenipotentiaries to adopt a joint British-Israeli amendment to
require governments to exempt refugees from requirements “which by their
nature a refugee is incapable of fulfilling.”310
As suggested by the concerns of the Israeli representative that led to the
redrafting of Art. 6,311 general criteria based on length of sojourn or
residence may be relied on to assess the entitlement of refugees, but may
not be mechanistically applied.312 Some flexibility to take account of
difficulties faced by refugees in meeting the usual standard is clearly called
for.313 For example, Grahl-Madsen suggests that requirements to produce
certificates of nationality, or documentation of educational or professional
qualification or experience acquired in the refugee’s country of origin may
sometimes fall within the insurmountable requirements exception.314 This
does not mean that refugees should be admitted to jobs for which they are
truly unqualified, but simply that if “the refugee is unable to produce
a certificate from the university in the country of origin where he gradu-
ated, he must be allowed to prove his possession of the required academic
degree by other means than the normally required diploma.”315 In line
309
Statement of Mr. Robinson of Israel, UN Doc. A/CONF.2/SR.5, July 4, 1951, at 19.
310
The proposal was adopted on a 22–0 (2 abstentions) vote: UN Doc. A/CONF.2/SR.26,
July 18, 1951, at 10.
311
See text at note 309.
312
As the Court of Justice of the European Union insisted in determining whether beneficiaries of
subsidiary protection could be subject to a restriction on freedom of residence not applied to
other social security recipients, the test is whether “those groups are not in an objectively
comparable situation as regards the objective pursued”: KreisWarendorf v. Ibrahim Alo and
Amira Osso v. Region Hannover, Dec. Nos. C-443/14 and C-444/14 (CJEU, Mar. 1, 2016),
at [54].
313
“The object of the phrase ‘in the same circumstances’ is, thus, to clarify that the treatment
of refugees compared to that of foreigners and nationals need not necessarily be uniform,
but depends in many instances upon the refugee’s special status and his or her situation”:
R. Marx and F. Machts, “Article 6,” in A. Zimmermann ed., The 1951 Convention Relating
to the Status of Refugees and its 1967 Protocol: A Commentary 707 (2011), at 713.
314
Grahl-Madsen, Commentary, at 23. 315 Ibid.

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

316
“In the present case, the Minister was confronted with an application based on
a clear assertion of a marriage ceremony with legal effect in Somalia, combined with
the total loss of any possibility of producing documentary proof. The Minister is
essentially required to make an assessment based on all the evidence . . . He must
consider the assertion made by the applicant that a marriage has taken place and
assess [its] credibility, based on all the circumstances. He is not bound to accept
a bald assertion but should consider it in combination with all other circumstances.
One of those circumstances will be the reason offered for inability to produce
a certificate”: Hassan and Saeed v. Minister for Justice, Equality, and Law Reform,
[2013] IESCE 8 (Ir. SC, Feb. 20, 2013), at [52].
317
See Weis, Travaux, at 46–47.
318
The spirit of this imperative was clearly recognized by the UK Supreme Court in
considering whether rules on refugee family reunification for “the child of a parent”
would extend to a child for whom a British resident family member had taken
responsibility under traditional Islamic Kafala rules after the death of her father.
Finding that British law excluded such a relationship, the Court nonetheless called
for amendment of the law, noting that it “accept[ed] . . . that under the rules AA is
treated less favourably than the adoptive siblings, largely because of the tragic
circumstances in which parental responsibility passed to her brother-in-law, taken
with the lack of any functioning legal system allowing for formal adoption in the
country from which she comes”: AA (Somalia) v. Entry Clearance Officer (Addis
Ababa), [2013] UKSC 81 (UK SC, Dec. 18, 2013), at [24]–[25]. The same court more
recently determined that application of the minimum income rules governing family
sponsorship generally could result in unjustifiable harshness if applied to a refugee
given the “insurmountable obstacles to the couple living together” in the refugee’s
country of origin: R (SS Congo) v. Entry Clearance Officer, Nairobi, [2017] UKSC 10
(UK SC, Feb. 22, 2017), at [102], [104]–[105].

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 3.2 g en e r a l s t a n d a r d o f t r e a t m e n t 237

3.2.4 Rights Governed by Personal Status

Refugee Convention, Art. 12 Personal Status
1. The personal status of a refugee shall be governed by the law of
the country of his domicile or, if he has no domicile, by the law
of the country of his residence.
2. Rights previously acquired by a refugee and dependent on
personal status, more particularly rights attaching to mar-
riage, shall be respected by a Contracting State, subject to
compliance, if this be necessary, with the formalities required
by the law of that State, provided that the right in question is
one which would have been recognized by the law of that State
had he not become a refugee.
As Verhellen notes, when refugees leave their country to seek protection
they not only face the challenge of documenting their relationships and
consequent entitlements in relation to such fields as legal capacity, family
status, and rights of succession,319 but more fundamentally they often
confront
the complicated issue of the so-called limping legal relationships or rela-
tionships/personal status which one legal order considers lawful and valid,
but another legal order does not. Dealing with limping legal relationships
is one of the core tasks of private international law, which aims for as much
cross-border continuity and harmony as possible in people’s identities,
personal and/or family status.320
Because different legal systems apply different rules to determine such
questions, a “connecting factor” must be identified to resolve the conflict
of laws dilemma. Of the three dominant approaches – looking to “nation-
ality,” “domicile,” or “habitual residence” – Art. 12 of the Refugee
Convention requires that “domicile” be treated as the determinative con-
necting factor.
Which forms of personal status are governed321 by reference to the rules
applying in the refugee’s country of domicile? While the Chairman of the Ad
319
On this issue, see Chapter 4.9.
320
J. Verhellen, “Cross-Border Portability of Refugees’ Personal Status,” (2018) 31(4) Journal
of Refugee Studies 427 (Verhellen, “Cross-Border Portability”), at 433.
321
The meaning of “governed” in Art. 12(1) is itself a vexed question. Metzger provides
a thoughtful analysis of this question, concluding that “Article 12, para. 1 should be read as
a direct choice of law rule wherever the former connection of the refugee to his country of
origin is the only international aspect of the case whereas all other elements are located in the
forum State. Such a case should be treated as a purely internal case without further analysis of
the general choice of law principles of the forum . . . However, a different solution should be
applied in cases in which additional international aspects and connecting factors are involved,
e.g. if the refugee and his [or her] spouse have different nationalities or if in the case of

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

succession, real estate is located in another country. Here, Art. 12, para. 1 should be read as
a ‘modifier’ of the respective choice of law rule of the forum. The general principles of conflict
of laws of the forum should apply, including the doctrine of renvoi, but with the exception that
any referral to the law of the country of origin of the refugee for issues of personal status must
be avoided, whether by other connecting factors (such as the first common domicile of
spouses), or by renvoi. This approach prevents discrimination against the refugee”:
A. Metzger, “Article 12,” in A. Zimmermann ed., The 1951 Convention Relating to the Status
of Refugees and its 1967 Protocol: A Commentary 863 (2011) (Metzger, “Article 12”), at
875–876.
322
Statements of the Chairman, Mr. Chance of Canada, UN Doc. E/AC.32/SR.9, Jan. 24, 1950, at
3, 11. The same concern was expressed by the Egyptian representative to the Conference of
Plenipotentiaries, Mr. Mostafa, UN Doc. A/CONF.2/SR.7, July 5, 1951, at 10: “It would . . . be
desirable for the Convention to define what was meant by personal status. The question was
undoubtedly a very complex one, and might involve lengthy discussion.”
323
The Israeli delegate argued that the Committee “would have to choose between an ideal
convention, which would obtain only a few signatures, and a less satisfactory document
which would be ratified by a greater number of States. If the Committee did not want the
convention to become a dead letter, it must place a limit upon its ambitions”: Statement of
Mr. Robinson of Israel, UN Doc. E/AC.32/SR.9, Jan. 24, 1950, at 6.
324
“[I]t would be dangerous for the Ad Hoc Committee to follow the course advocated by the
Chairman . . . Indeed, it was unlikely that such a definition would be in harmony with the
various legislations of the States signatories . . . Such a notion should not . . . be defined in
a convention dealing solely with refugees, but rather in an instrument dealing with private
international law in general”: Statement of Mr. Rain of France, ibid. at 4. See also
Statement of Sir Leslie Brass of the United Kingdom, ibid. at 5: “He did not consider
that the members of the Committee were competent to work out definitions of that kind.”
325
Statement of Mr. Larsen of Denmark, ibid. at 4.
326
Statement of Mr. Robinson of Israel, ibid. at 8. See also Statements of Sir Leslie Brass of the
United Kingdom, ibid.; Mr. Kural of Turkey, ibid.; and Mr. Rain of France, ibid. at 9.
327
United Nations, “Statelessness,” at 24. 328 Ibid. 329 See text at note 373 ff.

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 3.2 g en e r a l s t a n d a r d o f t r e a t m e n t 239

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

330
United Nations, “Statelessness,” at 25. 331 Ibid. at 24. 332 See text at notes 327–337.
333
Among the specific concerns identified in the Study were requirements to produce identity
or other documents available only from the authorities of the country of origin, the
production of civil registration documents, and possession of particular kinds of residence
permits: United Nations, “Statelessness,” at 25–26.
334
Ibid. at 25. 335 Secretary-General, “Memorandum,” at 25.

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domicile state,336 whatever the rules generally applicable to other non-

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

336
Some substantive concerns were raised in relation to the details of the proposed Art. 12(2)
(see e.g. the comments of Mr. Guerreiro of Brazil, UN Doc. E/AC/32/SR.9, Jan. 24, 1950,
at 5). But in the end, no objection was taken to the request of the representative of the
International Refugee Organization “to include in the Committee’s report a paragraph
explaining that paragraph 2 had been deleted because, in the opinion of the Committee,
paragraph 1 fully covered the points raised in paragraph 2 and also because the law
differed considerably in various States, particularly with regard to the questions referred
to in paragraph 2. The report might then state that the Committee had unanimously
agreed that the questions dealt with in paragraph 2 ought not to be governed by the rules
concerning the substance, form and competence of the national law, even in the countries
in which such questions were usually governed by that law”: Statement of Mr. Weis of the
IRO, ibid. at 13–14. The actual text of the relevant passage in the Committee’s report is
significantly more succinct. It notes simply that “[t]he Committee decided that it was not
necessary to include a specific reference to family law, as this was covered by paragraph 1”:
Ad Hoc Committee, “First Session Report,” at Annex II.
337
“[T]he main purpose was to regulate the position of those countries where aliens were
subject to their own national law”: Statement of Sir Leslie Brass of the United Kingdom,
UN Doc. E/AC.32/SR.9, Jan. 24, 1950, at 9. This was unequivocally accepted by, for
example, the French delegate, who agreed that “there could be no further question of
applying national law to the personal status of refugees and there was no distinction to be
made between the various countries”: Statement of Mr. Rain of France, ibid.
338
United Nations, “Statelessness,” at 24.
339
The French delegate posed a question (which was never answered on the record) to the
Secretariat, namely “whether it considered that the law of succession was part of family law
and whether it should therefore be understood that the rules of substance of the country of
domicile . . . applied both to family law, particularly to the celebration and dissolution of
marriage, and to the law of succession”: Statement of Mr. Rain of France, UN Doc. E/
AC.32/SR.9, Jan. 24, 1950, at 6.
340
“In matters of succession . . . the transfer of real estate [in Brazil] was carried out in
accordance with the legislation of the country where the real estate was, and not in
accordance with that of the refugee’s country of domicile”: Statement of Mr. Guerreiro
of Brazil, ibid. at 5.

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 3.2 ge n e r a l s t a n d a r d o f t r e a t m e n t 241

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

341
See text at note 326. A recent analysis agrees that reliance on this study “is the preferable
approach given that the main goal of the 1951 Convention is to ensure uniformity in the
treatment of refugees . . . [T]he issues mentioned explicitly in the ‘Study of Statelessness’
are [best] used as a proxy to define ‘personal status.’ Those subject matters should be
characterized as core issues of the personal status in the sense of Art. 12 . . . However, the
‘Study of Statelessness’ should not prevent the authorities of a contracting State from
characterizing matters not mentioned explicitly as being subject to Art. 12”: Metzger,
“Article 12,” at 871–872.
342
Indeed, the British representative observed “that the definition given in the Secretariat
study gave only a very vague idea of the concept of personal status”: Statement of Sir Leslie
Brass of the United Kingdom, UN Doc. E/AC.32/SR.9, Jan. 24, 1950, at 8. The Turkish
delegate concurred, noting that “[i]n point of fact, the concept of personal status would be
determined by the laws and customs of each country, with due regard to the preparatory
work of the convention”: Statement of Mr. Kural of Turkey, ibid.
343
Convention on the Status of Refugees coming from Germany, 192 LNTS 4461, at Art. 6.
The primary exception related to refugees who had no citizenship; the personal status of
such refugees was determined by reference to their country of domicile or habitual
residence. As such “paragraph 1 introduces an innovation. It makes no distinction
between refugees who are stateless de jure and those who are stateless only de facto. In
point of fact persons in either category no longer enjoy the protection of their countries of
origin”: Secretary-General, “Memorandum,” at 25.
344
There is today much support for a third option –“habitual residence” – based in no small
part on the influence of Hague Conventions on Private International Law. While of some
influence in the common law world, many civil law countries (including in particular
those that are members of the European Union) that previously took nationality as their
point of reference have now opted instead to rely on habitual residence. The habitual
residence inquiry is retrospective and oriented to the identification of objective indicators
that suggest “the place where the person has established, on a fixed basis, his permanent or
habitual centre of interests, with all relevant facts being taken into account for the purpose
of determining such residence”: Explanatory Report to the Brussels II Convention, OJ
1998 C221/27. The refugee’s intentions are given some weight under this approach, but

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 242 3 e ntitlement un der the refugee c onvention

of the Convention’s drafting, and enjoyed some support as a conceptually

straightforward means of enabling refugees to seek asylum without thereby
jeopardizing pre-existing basic entitlements. But the majority of the drafters of
the 1951 Convention felt that it was ethically wrong to hold refugees hostage to
personal status rules which prevailed in the countries which they had fled. The
Danish representative advanced the argument that “[r]efugees should not be
treated by the host country in accordance with the very laws – such as the
Nürnberg Laws – that might have caused them to become refugees.”345 As
summarized by Mr. Giraud of the Committee Secretariat,
A refugee was characteristically a person who had broken with his home
country and who no longer liked its laws. That fact constituted a strong
reason for not applying to him the laws of his home country. Furthermore,
it would make for more harmonious relations if the laws of the country in
which the refugee had established domicile or residence were applied to
him.346
The logic of not binding refugees to personal status rules in force in their
country of origin thus has much in common with the basic premise of the
duty to exempt refugees from exceptional measures. As discussed
below,347 it would make little sense to stigmatize a refugee as an enemy
alien on the basis of his or her formal possession of the nationality of
a state the protection of which the refugee does not enjoy. Similarly, it was
felt wrong that refugees should be forever held hostage to principles
governing their personal status in the country of origin, even if inconsist-
ent with the rules determining personal status in the asylum state where
the refugee now lived.
Principled concerns were not, however, solely responsible for the decision
to depart from the precedent under which the rules of the refugee’s country of
citizenship generally determined his or her personal status. To the contrary,
the driving force for reform appears to have been the practical experience of
the International Refugee Organization, which was concerned that the trad-
itional nationality rule had caused real problems for refugees in the field of
family rights, particularly in regard to the capacity to enter into marriage, and

not the central role they are assigned under the domicile inquiry. But see Rentsch, Der
gewöhnliche Aufenthalt, arguing that a comprehensive framework for understanding
habitual residence must be grounded in an individual’s intention to settle somewhere.
345
Statement of Mr. Larsen of Denmark, UN Doc. E/AC.32/SR.8, Jan. 23, 1950, at 2. See also
Statement of Mr. Robinson of Israel, ibid.: “It would hardly be fair to say that a man who
had fled from his country with the intention of never going back retained his
nationality . . . [N]o refugee should be forced to accept the laws of the country of which
he was a national.” Mr. Cha of China insisted that “refugees should be treated in accord-
ance with the laws of the country which had given them asylum,” invoking his country’s
aversion to the extraterritorial application of national laws: ibid.
346
Statement of Mr. Giraud of the Secretariat, ibid. at 4. 347 See Chapter 3.5.2.

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 3.2 g en e r a l s t a n d a r d o f t r e a t m e n t 243

the ability to dissolve a marriage.348 Reliance on the status rules of the refugee’s
country of citizenship was moreover said to be fraught with administrative
difficulty.349 An example offered by the Israeli delegate to the Conference of
Plenipotentiaries gives some sense of this concern:
Taking, by way of example, the case of a person whose place of origin was
Vilna, and who had sought asylum in a country where in matters of
international private law the courts applied the law of the country of
origin, the courts would have to establish whether they should apply the
Polish Civil Code, that of Lithuania before its annexation by the Soviet
Union, or the Soviet Civil Code for the constituent republics of the Union.
Such a decision would involve political considerations, and courts in some
countries might be unwilling to go into such matters.350
The alternative recommended by the Secretariat was to allow refugees
instead to have their personal status determined by the rules that prevail in
his or her country of domicile.351 As understood in the common law world
where it is the norm, the state of domicile is the place where the refugee is both
348
“The IRO had experienced great difficulties in cases where the principle of domicile and
residence had not been applied”: Statement of Mr. Weis of the International Refugee
Organization, UN Doc. E/AC.32/SR.8, Jan. 23, 1950, at 5. More specifically, “the question
of the right to contract marriage raised difficulties: countries which had so far applied the
national law did so only in so far as it did not conflict with their public policy. It might
therefore happen that the same consideration of domestic public policy might be raised in
deciding the capacity of the refugee to contract marriage under the law of his country of
domicile or residence. Moreover, the dissolution of marriages raised a question of
competence: the courts of many countries refused to decree a dissolution of marriage if
the national law of the person concerned was not obliged to recognize the validity of their
ruling”: Statement of Mr. Weis of the International Refugee Organization, UN Doc. E/
AC.32/SR.9, Jan. 24, 1950, at 3–4.
349
“In practice, the application of their own national law to refugees would involve great
difficulties. Even if they had kept their own nationality, the authorities of their country of
origin were unfavourably disposed towards them, and if a court of a reception country
were to apply to those authorities for information needed to establish their personal status,
it would presumably have difficulty obtaining such data”: Statement of Mr. Kural of
Turkey, UN Doc. E/AC.32/SR.7, Jan. 23, 1950, at 13. See also Statement of Mr. von
Trutzschler of the Federal Republic of Germany, UN Doc. A/CONF.2/SR.7, July 5, 1951,
at 11: “There were grave technical objections to applying the law of the country of origin.”
350
Statement of Mr. Robinson of Israel, UN Doc. A/CONF.2/SR.7, July 5, 1951, at 11–12.
351
If a refugee does not have a country of domicile, Art. 12 as adopted does allow for reference
to the rules on personal status of the refugee’s country of “residence.” “[T]he two criteria –
domicile and residence – were not simply juxtaposed in the paragraph under consider-
ation: it was to be noted that the law of the country of domicile was to be applied in the first
instance, the law of the country of residence to be applied only if the country of the
refugee’s domicile was unknown or in doubt. While preference was thus given to the
criterion of domicile, the notion of residence had been introduced because it was often
easier to establish residence than domicile”: Statement of Mr. Giraud of the Secretariat,
UN Doc. E/AC.32/SR.8, Jan. 23, 1950, at 4–5. This is, however, strictly a back-up rule.
“Decisions should . . . be based wherever possible on ‘domicile,’ and only exceptionally on

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 244 3 e n t i t l emen t un der the refu gee c onvention

physically present352 and in which he or she intends to reside on an indefinite

basis.353 It was thus assumed that this would ordinarily be the country of
asylum,354 facilitating the work of domestic courts involved in the adjudication
of refugee rights:355
Such a solution would be to the advantage of the refugees, and would be
welcomed also by other inhabitants of the country who may have legal
proceedings with refugees, and by the courts of the country. Courts will be
freed from the very difficult task of deciding which law is applicable and of
discovering what are the provisions of foreign laws in a particular regard.
Moreover, in some countries, courts may exercise jurisdiction with regard
to aliens only if their decisions are recognized by the courts of the country
of nationality of the alien. The present provisions would, by applying the
law of domicile or of residence, eliminate this limitation with regard to
refugees.356
In the end, even the French representative – who had tabled an opposing draft,
under which personal status would have continued to be decided by reference
to the rules of the refugee’s country of nationality357 – was persuaded that
a refugee’s personal status should instead be governed by the standards applic-
able in his or her country of domicile.358 As summarized by the Danish
representative,

‘residence”’: Statement of Mr. Robinson of Israel, UN Doc. E/AC.32/SR.36, Aug. 15, 1950,
at 6.
352
There is no requirement that the physical presence be of any particular duration: White
v. Tennant, (1888) 31 W. Va. 790 (US WVSCA, Dec. 1, 1888). Nor (as discussed at note
362) must the presence be lawful presence.
353
“[I]t has again and again been laid down that a change of domicil from the domicil of
origin must be made animo et facto. The factum is the bare fact of residence within the new
domicil . . . [But] [t]he bare fact is not sufficient. If therefore the residence is absolutely
colourless and there is nothing else the animus remains unproved”: Bowie or Ramsay
v. Liverpool Royal Infirmary, [1930] AC 588 (UK HL, May 27, 1930), at 594. “The intention
which is required for the acquisition of a domicile is the intention to reside permanently or
for an unlimited time in a country”: L. Collins et al., Dicey, Morris and Collins on the
Conflict of Laws (2019), at 144.
354
“[T]he principle applied in this article is the most simple because in the majority of cases
a refugee adopts the country of asylum as his domicile and thus the personal status will
easily be established and reference to foreign law will be avoided”: Robinson, History,
at 102.
355
“Whereas during normal times, when there were few foreigners in a country, the applica-
tion of the national law would not cause insurmountable difficulties, the courts would be
inundated with work if, at a time when the number of refugees amounted to hundreds of
thousands, they had to refer in each case to a national law with which they were unfamil-
iar”: Statement of Mr. Kural of Turkey, UN Doc. E/AC.32/SR.7, Jan. 23, 1950, at 14.
356
Ad Hoc Committee, “First Session Report,” at Annex II.
357
France, “Draft Convention,” at 3–4.
358
Statement of Mr. Rain of France, UN Doc. E/AC.32/SR.8, Jan. 23, 1950, at 5. “The
Committee was, in fact, trying to bring about the application of a new rule in countries

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 3.2 g en e r a l s t a n d a r d o f t r e a t m e n t 245

With regard to refugees, the Committee had decided that their personal
status would be governed by the law of their country of domicile . . . That
being the case, all other criteria had been abandoned. Consequently, in
those states where the law of the country of domicile . . . was applied,
refugees would receive the same treatment as other aliens; in other coun-
tries, they would be granted a special status.359
The assessment of a refugee’s personal status by reference to the rules of his
or her country of domicile is not, however, without its challenges. As a practical
matter, intentions can be notoriously difficult to assess, especially for persons
like refugees whose options and preferences are unsettled.360 And at the
conceptual level, it is awkward to reconcile domicile’s “intention to reside on
an indefinite basis” requirement with the legally transitory nature of refugee
status which presupposes that refugees’ presence is only for the duration of
a risk the duration of which is usually unknown.361 In practice, however,
common law precedents show that domicile is remarkably malleable in ways
that enable it by and large to meet the needs of refugees as the drafters
intended.
To start, the first leg – the “physical presence” requirement – is precisely
that. In a seminal 2005 decision, the UK Supreme Court made clear that even
unlawfully present persons can acquire a domicile of choice:
[T]he reality of her presence and intention, the merits of her case, and the
quality of her connections with the laws of this country are no different

having a French legal tradition. The French idea had not met with a favorable reception so
far, either on questions of principle or on those of application; in every case, it had had to
yield to other ideas”: Statement of Mr. Rain of France, UN Doc. E/AC.32/SR.9, Jan. 24,
1950, at 12.
359
Statement of Mr. Larsen of Denmark, UN Doc. E/AC.32/SR.9, Jan. 24, 1950, at 11.
360
A. Iyer, “Domicile and Habitual Residence,” (1985) 6 Singapore Law Review 115, at 119.
361
As a matter of principle, there is some force to the original assertion of the French
representative that reliance on the rules of a refugee’s country of nationality was often
more consistent with “the national traditions of the refugees” themselves: Statement of
Mr. Rain of France, UN Doc. E/AC.32/SR.8, Jan. 23, 1950, at 3. Indeed, the only non-
governmental intervention on this issue opposed the shift to the determination of personal
status based on the rules of domicile on the grounds that it failed to recognize the desire of
many refugees ultimately to return to their country of origin. “That a political refugee who
had a horror of his country of origin, and had no intention whatsoever of returning to it,
should find himself given the personal status provided by the legislation of the host
government seemed reasonable. But would it be reasonable, it might still be asked, to
impose on refugees who were still attached to their country of origin and lived only in the
hope of returning to it (as formerly the German anti-fascists had done and as the Spanish
Republicans were doing at present), a personal status which might vary considerably
according to their country of residence, and to adopt that measure, according to changes
in circumstances in the country of domicile, without the person affected having an
opportunity of expressing his own desires on the matter?”: Statement of Mr. Rollin of
the Inter-Parliamentary Union, UN Doc. A/CONF.2/SR.10, July 6, 1951, at 8.

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 246 3 e n t i t l e m e n t u n d e r th e r e f u g e e co nv en t i o n

from what they would have been had she formed her intention to remain
just before her limited leave ran out in April 1998. Hence . . . it seems to me
that there is no reason in principle why a person whose presence here is
unlawful cannot acquire a domicile of choice in this country.362
Taken together with the long-standing principle that domicile can be immedi-
ately established so long as there is at some moment a co-existence of intent
and physical presence,363 it seems clear that refugees can liberate themselves
from the rules governing in their home country quite quickly.364 A South
African court determined, for example, that an individual appealing the rejec-
tion of his asylum application had established South African domicile:
[I]t is clearly plaintiff’s intention, if permitted, to settle in South Africa for
an indefinite period . . . He is making every effort to remain here; he has
applied for refugee status; he has launched or is about to launch court
proceedings in order to review and set aside the refusal to grant him such
status. In this regard it cannot be said that his application for review has no
reasonable prospects of success . . . There is further nothing to refute
plaintiff’s assertion that he has the intention to settle here indefinitely if
permitted.365
There have also been developments on the understanding of the requisite
intention that work in favor of refugee autonomy.
First, involuntary arrival in a country does not mean that the required
intention to remain in a country cannot subsequently emerge. Under the
notion of a “domicile of choice,” the jurisprudence accepts that if the refugee
can provide circumstantial evidence of the emergence of a voluntary intention
to remain despite the involuntary basis of his or her arrival, domicile may be
established.366 Indeed, the intention may change over time:

362
Mark v. Mark, [2005] UKHL 42 (UK HL, June 30, 2005), at [48]–[49].
363
“It is not, as a matter of law, necessary that the residence be long in point of time: residence
for a few days or even for part of a day is enough. Indeed, an immigrant can acquire
a domicile immediately upon his arrival in the country in which he intends to settle”:
Collins, Dicey (2019), at 143.
364
“To establish domicile . . . the husband must satisfy the Court on the balance of probabil-
ities that he formed the intention to reside indefinitely in Australia coincidentally with his
lawful presence here . . . [A] domicile of choice may be acquired even though the legality of
a person’s presence may vary over time provided that lawful presence coincides at some
point with the requisite intention”: Shao-Qi Wu and Leah Rechel Wu, [1994] Fam. CA 45
(Aus. FC, May 3, 1994), at [6].
365
Alam v. Minister of Home Affairs, [2012] ZAECPEHC 22 (SA HC, Feb. 16, 2012).
366
“The expressions ‘voluntary’ and ‘of free choice’ . . . certainly do not mean that the de cujus
must be shown to have been unaffected by compelling reasons of a kind that could dictate
the course of his conduct. Dr. Cheshire correctly points out . . . that it cannot be said that
a man’s residence is not voluntary, and therefore not sufficient to constitute domicile, if it
originated in inexorable necessity”: Armstead v. Armstead, [1954] Vic LR 733 (Aus. Vic.
SC, Sept. 3, 1954), at 734.

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 3.2 ge ne r a l s t a n d a r d o f t r ea t m e n t 247

It is clear in my judgment that the intention does not have to be shown to

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

367
Inland Revenue Commissioners v. Bullock, [1976] 1 WLR 1178 (Eng. CA, June 25, 1976), at
1184.
368
The US Supreme Court opined more than 100 years ago the view that “[t]he requisite
animus is the present intention of permanent or indefinite residence in a given place or
country, or, negatively expressed, the absence of any present intention of not residing
there permanently or indefinitely”: Gilbert v. David, (1915) 235 US 561 (US SC, Jan. 5,
1915), at 569, adopting the language of Price v. Price, 156 Pa. St. 617 (US SCPa, July 18,
1895), at 626. The traditional approach to domicile nonetheless included a rebuttable
presumption that the involuntary arrival of refugees meant that they did not intend to
reside indefinitely in the asylum country: In re Evans, [1947] Ch 695 (Eng. ChD, July 9,
1947).
369
“[T]he testator’s hope was that he could go on living his accustomed and very pleasant
life . . . to the end of his days . . . The only circumstance on the happening of which he
expressed any intention of leaving England was if he was no longer able to live an active life
on the farm . . . But that contingency is altogether indefinite. It has no precision at all . . .
[T]he vagueness of the notion, coupled with the fact that the testator’s mode of life was
wholly congenial to him, is such that one must be left in the greatest doubt whether, in the
end, it had any reality in the testator’s mind at all”: Furse v. IRC, [1980] 3 All ER 838 (Eng.
ChD, July 7, 1980), at 846.

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 248 3 e n t i t l emen t un der the refu gee c onvention

of its eventuation is not. Yet as Dicey points out, the flexibility of “domicile”
still seems to validate refugee intentions:370
If a political refugee intends to return to the country from which he fled as
soon as the political situation changes, he retains his domicile there unless
the desired political change is so improbable that his intention is dis-
counted and treated merely as an exile’s longing for his native land; but if
his intention is not to return to that country even when the political
situation has changed, he can acquire a domicile of choice in the country
to which he has fled.371
Yet even as the drafters chose a connecting factor – domicile – that clearly
facilitates the ability of refugees to align their personal status with the rules of
the asylum country, they were equally clear that it would be wrong to impose
such a realignment on refugees. Because the goal was simply to enable refugees
quickly to have their personal status assessed by reference to asylum country
norms if that was in line with their intentions, the drafters included a second
paragraph – Art. 12(2) – that enables a refugee to opt to continue to have his or
her personal status determined by reference to the rules of his or her country of
origin.372 Under this provision, “[r]ights previously acquired by a refugee and
dependent on personal status, more particularly rights attaching to marriage,
shall be respected by a Contracting State.” Two matters were of particular
concern.
First, it was felt “undesirable to modify without reason the capacity of
married women or the matrimonial regime.”373 To the extent that the position
of women in the country of origin was superior to that which prevailed in the
asylum state, application of the general rule of Art. 12 (that is, determination of
personal status on the basis of the rules of the country of domicile) might result
in a deprivation of acquired rights:

370
Intentions are not, however, the same as desires. So for example in the case of a Greek
Cypriot who fled to the UK after the Turkish invasion of his country and who lived in the
UK for some fifty years, it was held that “[o]f his attachment to, his love for, Cyprus, there
is no doubt. That his truly free choice, looking back over 50 years, would not have been to
live [in the UK] for most of his life, there is also no doubt. My judgment is that his
intentions, as his behaviour, adapted over time to his circumstances”: Cyganik v. Agulian,
[2005] EWHC 444 (Eng. ChD, Mar. 23, 2005), at [91].
371
Collins, Dicey (2019), at 156–157.
372
“Paragraph 2 is the result of the generally accepted validity of ‘acquired (or vested) rights’
which ought not be disturbed”: Robinson, History, at 103.
373
Secretary-General, “Memorandum,” at 26. See also Statement of Mr. Weis of the
International Refugee Organization, UN Doc. E/AC.32/SR.36, Aug. 15, 1950, at 8:
“[P]aragraph 2 provided for exceptional treatment for refugees in a very narrow
field . . . The paragraph as a whole mainly concerned property rights connected with
marriage, in respect of which it would be difficult for refugees to comply with the law of
their country of domicile.”

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 3 .2 general s tanda rd of trea tment 249

At the time of their marriage these women may have been residing in their
country of origin and have possessed the nationality of that country. In
many cases, under their national law, marriage did not diminish their
capacity but required the complete separation of the property of each
spouse. Having become [a refugee] and being resident in a reception
country the law of which restricts the capacity of married women and,
where there is no marriage contract, requires the married couple to
observe a matrimonial regime differing from that of separate estate,
a woman in this position often finds her rights actually disputed.374
Second, the French representative voiced his desire to ensure respect for
spousal rights resulting from “the acts of religious authorities to whom refu-
gees were amenable, if performed in countries admitting the competence of
such authorities.”375 If only secular marriage were authorized in the asylum
state, a refugee couple might find that its union was not recognized there.
In each case, there was agreement that it would be inappropriate to allow the
operation of the general rule in Art. 12(1) to force the refugee to give up his or
her status-based acquired rights.376 In a fundamental sense, then, Art. 12(2)
goes a substantial distance toward meeting the view that greater deference
should be paid to the preferences of the refugees themselves about how their
personal status should be determined.377 While not allowing refugees to elect
the basis upon which their personal status is decided, Art. 12 read as a whole
will often give refugees the best of both worlds. For example, a woman who

374
United Nations, “Statelessness,” at 25.
375
Statement of Mr. Rain of France, UN Doc. E/AC.32/SR.9, Jan. 23, 1950, at 14.
376
Paragraph 2 of Art. 12 expressly exempts “[r]ights previously acquired by a refugee and
dependent on personal status, more particularly rights attaching to marriage [emphasis
added].” While less explicit than the Secretary-General’s original draft (which set out that
“rights attaching to marriage” included “matrimonial system, legal capacity of married
women, etc.”: Secretary-General, “Memorandum,” at 24), the deletion of the explanatory
language was without any evident substantive effect: Statement of Mr. Robinson of Israel,
UN Doc. E/AC.32/SR.9, Jan. 24, 1950, at 15. Moreover, when the American representative
suggested the deletion of the explicit reference to marital rights altogether, the Chairman
successfully argued “that those rights were indeed of particular importance and that
special reference should be made to them”: Statement of the Chairman, Mr. Chance of
Canada, ibid. On the question of marital rights acquired by virtue of a religious ceremony,
the drafting history records that “[t]he Chairman explained, after consultation with the
representative of the Assistant Secretary-General, that the Secretariat had considered that
the provisions of [paragraph 2] covered all acquired rights including those resulting from
the acts of religious authorities to whom the refugees were amenable, if performed in
countries admitting the competence of such authorities”: Statement of the Chairman,
Mr. Chance of Canada, ibid. at 14. The French representative thereupon withdrew his
amendment that would have explicitly made this point, “not because there was any
intention to rescind those provisions but because they were covered by the general
terms of . . . the Secretariat draft”: Statement of Mr. Rain of France, ibid. at 15.
377
The case for a “people-centered” approach is thoughtfully advanced in Verhellen, “Cross-
Border Portability.”

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 250 3 e ntitlement under the refugee c onvention

comes from a country where the separate legal identity of women is not
recognized is entitled under Art. 12(1) to claim the benefit of a more progres-
sive status regime in her new country of domicile. But if the status of women is
inferior in the domicile state to that which prevailed in her state of origin, she
may nonetheless invoke Art. 12(2) to insist on respect for rights previously
acquired under the more favorable regime.
In its original form, the savings clause set out in Art. 12(2) would have
applied broadly to “[r]ights acquired under a law other than the law of the
country of domicile.”378 On the suggestion of the Belgian representative,379
and taking account of the British delegate’s insistence that the more limited
goal of Art. 12(2) was to ensure that “an individual’s personal status and
acquired rights before he became a refugee should be respected,”380 the
Second Session of the Ad Hoc Committee amended the text to refer to rights
“previously acquired.”381 The essential concern was that while refugees should
not be forced to forfeit status-based rights acquired prior to their admission to
their new state of domicile, asylum states should not be obligated to respect any
rights acquired by a refugee who might choose to leave his or her new domicile
state temporarily in order to acquire rights not available in that country.
This point was expressly canvassed during debate on a (subsequently
deleted) paragraph which stipulated that “[w]ills made by refugees . . . in
countries other than the reception country, in accordance with the laws of
such countries, shall be recognized as valid.”382 While the explanatory com-
ment on the paragraph made clear that its purpose was to preserve the legal
force of wills made by the refugee pre-departure to seek asylum, but which had
not been amended to conform to the specific requirements of the state of
reception,383 the Belgian delegate observed that there might well be a conflict
between the text itself and its principled objective:
Thus in the case of a Polish refugee who had spent some time in Germany
and had then taken up permanent residence in Belgium, a will made in
Poland would, according to the comment, be valid in Belgium, whereas
according to [the text] it would be valid if it had been made either in
Poland or in Germany.384
378
Secretary-General, “Memorandum,” at 24.
379
Statement of Mr. Herment of Belgium, UN Doc. E/AC.32/SR.36, Aug. 15, 1950, at 4.
380
Statement of Sir Leslie Brass of the United Kingdom, ibid. at 8.
381
Ad Hoc Committee, “Second Session Report,” at 17.
382
Secretary-General, “Memorandum,” at 24.
383
“It frequently happens that refugees have made a will in their country of origin in
accordance with the provisions of the law of that country and are convinced that the
will they brought away with them remains valid. The will may not however conform to the
rules as regards form and substance of the country of residence. As a result, persons who
believe they have taken the necessary steps to protect the interests of their next of kin die
intestate”: ibid. at 26.
384
Statement of Mr. Cuvelier of Belgium, UN Doc. E/AC.32/SR.9, Jan. 24, 1950, at 17.

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 3.2 general standard of treatmen t 251

In the discussion that followed, the essence of the Belgian delegate’s concern
was recognized. But it was made clear that the key question was temporal, not
jurisdictional. Mr. Larsen of Denmark, for example,
considered that it was reasonable to include in the article relating to the
personal status of refugees a provision guaranteeing the validity of wills
made by them before their arrival in the countries which became their
country of domicile or residence. On the other hand, he did not see why
that provision should be drafted so as to grant the refugees, after their
arrival in the country of domicile or of residence, the privilege of making
wills in other countries in accordance with the laws of those countries and
of having those wills recognized as valid in the reception countries; privil-
eges of that nature were never granted to aliens and there was conse-
quently no reason why they should be given to refugees [emphasis
added].385
Similarly, the Chairman and the French representative affirmed that the focus
should be on whether the will had been drawn up prior to arrival in the asylum
country, regardless of where it had been drawn up.386 A purposive interpret-
ation of Art. 12(2) would thus safeguard status-based rights acquired prior to
arrival in the asylum country, whether in the refugee’s state of origin or in any
intermediate country.
The decision to delete a specific textual reference to the continuing validity
of wills made by refugees before arrival in the asylum state was reached for two
reasons.387 On the one hand, it was felt that there was no need to affirm the
legality of wills simply because the formalities of their execution abroad did not
correspond with those of the domicile state.388 As the Belgian representative

385
Statement of Mr. Larsen of Denmark, ibid. at 17. See also Statement of Mr. Rain of France,
ibid. at 19: “A refugee who had made a will in his country of origin or in transit thought
that his will was valid . . . That was what the text said; that was, in fact, what should be said.
The only amendment necessary was to make it clear that the provision applied to wills
made before arrival in the country of reception [emphasis added].”
386
“[I]f the provision were made only for wills drawn up in the country of origin, [the
paragraph] would be of academic interest only; there was every reason to believe that the
country of origin would not be prepared to allow the heirs to take possession of the
property left to them, even if it was still in existence”: Statement of the Chairman,
Mr. Chance of Canada, ibid. at 19.
387
It is important to note, however, that “the vote in favour of the deletion of the reference to
wills should not be interpreted as weakening in any way the force of the paragraph . . .
dealing with acquired rights”: Statement of Mr. Rain of France, UN Doc. E/AC.32/SR.10,
Jan. 24, 1950, at 4. In response, “[t]he Chairman confirmed Mr. Rain’s interpretation of the
vote. The reference to wills had been deleted because it would entail conflict with domestic
law. The courts of reception countries could be relied upon to deal fairly with refugees in
the matter”: Statement of the Chairman, Mr. Chance of Canada, ibid.
388
“[T]here seemed to be general agreement regarding the validity of wills made by refugees
in their country of origin in so far as the form was concerned”: Statement of Mr. Cuvelier
of Belgium, ibid. at 3.

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 252 3 en t i t l em e n t u n d er t h e r ef u g ee c o n v e n t i o n

observed, “if the only purpose of [the provision] was to recall the principle
locus regit actum, the paragraph was wholly unnecessary, inasmuch as the
principle was generally recognized and respected.”389 Conversely, there was no
agreement to honor refugee wills executed prior to arrival to the extent that
they contained substantive provisions contrary to the laws of the asylum
state.390 The British representative “feared that the proposal would actually
permit the refugee, by his will, to alter the law of the reception country. For
example . . . a refugee residing in England could, by means of a will made in his
country of origin, tie up property in England in perpetuity.”391 The example
provided by the Danish delegate was perhaps more poignant: “Some countries,
such as Denmark, did not allow the testator to disinherit his children; the
children must be assured of their rightful share, and the testator could dispose
freely of the remaining portion only. Other countries, such as the United
Kingdom, allowed the testator to dispose of the whole of his estate as he
pleased.”392 In the end, the drafters acknowledged only a commitment in
principle to encourage courts in asylum countries “wherever possible, [to]
give effect to the wishes of the [refugee] testator.”393 On matters of substance,
however, most states felt that the substantive validity of refugee wills should be
subject to the usual legal and public policy concerns taken into account by the
asylum country.394
Indeed, the drafters agreed to a public policy limitation on the duty to honor
the previously acquired status-based rights of refugees. Following from the
debate about refugee wills, it was agreed by the Ad Hoc Committee “that the
389
Statement of Mr. Cuvelier of Belgium, UN Doc. E/AC.32/SR.9, Jan. 24, 1950, at 18. The
Secretariat had, in fact, suggested that this was the sole purpose of the paragraph. “[T]he
Secretariat had intended to refer to the form of a will rather than to its provisions. For
example, the will of a Russian refugee in France would be recognized as valid with respect
to form; the validity of its provisions, however, would have to be determined according to
local law or, in the case of landed property, according to the law of the country in which the
property was situated”: Statement of Mr. Giraud of the Secretariat, ibid. In fact, however,
the explanatory notes to the draft under consideration make clear that the paragraph was
intended to safeguard refugee wills “as regards form and substance”: Secretary-General,
“Memorandum,” at 26.
390
“A will drawn up in the country of origin might contain clauses which were not in
conformity with the laws of the country of residence, particularly those dealing with
public order”: Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.10, Jan.
24, 1950, at 2.
391
Statement of Sir Leslie Brass of the United Kingdom, ibid. at 3.
392
Statement of Mr. Larsen of Denmark, UN Doc. E/AC.32/SR.9, Jan. 24, 1950, at 17.
393
Ad Hoc Committee, “First Session Report,” at Annex II.
394
“The Chairman, speaking as the representative of Canada, acknowledged that the
Government of the reception country would have to make some derogation to domestic
law, thus placing the refugee in a favoured position. It might therefore be wiser to delete
[the specific reference to refugee wills]”: Statement of Mr. Chance of Canada, UN Doc. E/
AC.32/SR.10, Jan. 24, 1950, at 3. The provision was thereupon deleted by a vote of 7–2 (2
abstentions): ibid.

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 3.2 ge n e r a l s t a n d a r d o f t r e a t m e nt 253

article did not require rights previously acquired by a refugee to be recognized

by a country if its law did not recognize them on grounds of public policy or
otherwise. It had been decided that the provisions of the article were in any case
subject to that general reservation, which was implied and need not therefore
be written into it.”395 The Conference of Plenipotentiaries, however, decided to
make the public policy limitation explicit. Mr. Hoare of the United Kingdom
proposed that the phrase, “provided the right is one which would have been
recognized by the law of that State had he not become a refugee,”396 be added to
Art. 12(2). This amendment would meet his concern “that States should not be
required to respect rights previously acquired by a refugee when they were
contrary to their own legislation. A State could not protect a right which was
contrary to its own public policy.”397 The specific example considered by the
Conference was “the position of a divorced refugee who had obtained his
divorce in a country the national legislation of which recognized divorce, but
[who] was resident in a country, like Italy, where divorce was not
recognized.”398 It was agreed that the asylum country could not reasonably
be asked to issue documentation certifying the divorce, since “if a particular
country did not recognize divorce, it could not possibly issue a certificate
authenticating such a status . . . [T]he right [must be] one which would have
been recognized by the law of the particular State had the person in question
[not] become a refugee.”399 This may be technically right, since Art. 12(2)
requires only respect for previously acquired, status-based rights, not an
affirmative duty to certify such entitlements.400
395
Statement of Sir Leslie Brass of the United Kingdom, UN Doc. E/AC.32/SR.41, Aug. 23,
1950, at 8. See also Statement of Mr. Weis of the International Refugee Organization, UN
Doc. E/AC.32/SR.36, Aug. 15, 1950, at 9: “He wondered whether . . . rights [should be
made] dependent not only on compliance with the formalities prescribed by the law of the
country of domicile but also on the [exigencies] of public order.”
396
Statement of Mr. Hoare of the United Kingdom, UN Doc. A/CONF.2/SR.25, July 17, 1951,
at 4.
397
Statement of Mr. Hoare of the United Kingdom, UN Doc. A/CONF.2/SR.7, July 5, 1951, at
13. See also Statements of Mr. Schurch of Switzerland, ibid. at 12: “Swiss law recognized
acquired rights, but only subject to provisions concerning public order”; and the
President, Mr. Larsen of Denmark, ibid. at 15: “It was essential to make some provision
ensuring that such rights did not conflict with the legislation of the country in which the
refugee became domiciled.”
398
Statement of Mr. Rochefort of France, UN Doc. A/CONF.2/SR.25, July 17, 1951, at 4–5.
399
Statement of Mr. Hoare of the United Kingdom, ibid. at 5.
400
Of more concern, however, the Belgian and French representatives opined that “[t]he
purpose of the United Kingdom amendment was to place refugees on the same footing as
aliens in respect of rights dependent on personal status . . . [I]n the case cited by the French
representative the courts of the receiving country would have to decide whether they
would have recognized a divorce granted in the same circumstances to two aliens who
were not refugees”: Statement of Mr. Herment of Belgium, ibid. at 5–6. See also Statement
of Mr. Rochefort of France, ibid. at 6. While the context of the remark suggests a more
limited purport (“[I]n principle States which forbad divorce did so only to their own

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 254 3 en t i t l e m e n t u n d er t h e r ef u g ee c o n v e n t i o n

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

nationals. It was solely for reasons of public order that a State might decide not to
recognize divorces between foreigners or not to authorize them to divorce in its territory”:
Statement of Mr. Herment of Belgium, ibid. at 5), the comment as stated cannot be
reconciled to the text of Art. 12, read as a whole. The essential reason for Art. 12 is
precisely to exempt refugees from the rules ordinarily applying to (non-refugee) aliens (see
Weis, Travaux, at 107: “The main intent of the provision is, indeed, to subtract the refugee
from the application of the law of the country of his nationality, considering that they have
left that country and that that law may have undergone changes with which the refugees do
not agree”), not to assimilate them to aliens. And while the British amendment – which
was unfortunately not discussed further before being approved by the Conference (see UN
Doc. A/CONF.2/SR.25, July 17, 1951, at 9) – was clearly intended to authorize state parties
to refrain from the recognition of forms of previously acquired status which were
“contrary to its own public policy” (Statement of Mr. Hoare of the United Kingdom,
UN Doc. A/CONF.2/SR.7, July 5, 1951, at 13), there is absolutely no basis to assert that its
goal was to undermine the already agreed, essential goals of Art. 12. Thus, a reception state
which does not recognize divorce as a matter of public law or policy cannot be compelled
by virtue of Art. 12(2) to recognize a refugee’s rights flowing from divorce. If, on the other
hand, the reception state has no domestic impediment to divorce, but refrains for policy
reasons from recognizing the rights following from the divorce abroad of non-citizens, it
would nonetheless be required by Art. 12(2) to recognize the rights of refugees accruing
from divorce. In essence, the only legal or public policy concerns which are relevant to Art.
12(2) are those which apply generally in the reception state, not those which apply to non-
citizens or a subset thereof. Robinson, for example, suggests that “rights resulting from
polygamy in a country where it is prohibited” (Robinson, History, at 103) could legitim-
ately be resisted under the public policy exception to Art. 12(2).
401
Secretary-General, “Memorandum,” at 26. 402 Ibid. 403 Robinson, History, at 104.

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 3 .3 e xceptional standa rds o f treatment 255

subject to a savings clause allowing a refugee to opt instead to have personal

status assessed by reference to previously acquired rights, there is little risk that
the need to seek protection will strip the refugee of status-based rights of
importance to him or her.

3.3 Exceptional Standards of Treatment

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

404
See Chapter 3.2.1.
405
Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.37, Aug. 16, 1950,
at 7.
406
To similar effect, Art. 5 of the Convention provides that “[n]othing in this Convention
shall be deemed to impair any rights and benefits granted by a Contracting State to
refugees apart from the Convention,” thereby incorporating by reference for example
standards of international human rights law, which generally apply to all persons subject
to a state’s jurisdiction: see Chapter 1.4.5.
407
See Chapter 3.2.1. 408 See Roth, Minimum Standard, at 134 ff.
409
The right of refugees to protection of property is discussed at Chapter 4.5.1.

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 256 3 e n t i t l e m e n t u nd er t h e r ef u g ee c o n v e n t i o n

within a state’s territory, subject only to specific types of limits applied on

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

410
Civil and Political Covenant, at Arts. 12 and 2(1). As previously noted, aliens have been
held by the Human Rights Committee to benefit from protection against discrimination
on the grounds of “other status”: see Chapter 1.5.5 at note 462.
411
See Chapter 3.1.3.
412
The right of refugees to enjoy internal freedom of movement is discussed at Chapters 4.2.4
and 5.2.
413
Economic, Social and Cultural Covenant, at Arts. 6(1), 11(1), and 13(2)(b).
414
As discussed above, because the Economic, Social and Cultural Covenant authorizes less
developed states to withhold economic rights from non-citizens the dilemma for the
majority of refugees who are protected in such states may be real: see Chapter 1.5.4 at
note 432 ff.
415
The broad margin of appreciation afforded states under prevailing notions of non-
discrimination law remains problematic, however: see Chapter 1.5.5 at note 484 ff.
416
“[A] distinction should be made between the clause relating to exemption from reciprocity
and the provisions of some articles which specified whether refugees should be accorded
the most favorable treatment or be subject to the ordinary law. Where such provisions
were set forth in an article there was no need to invoke the clause on exemption from
reciprocity. It was obvious, in fact, that where refugees were accorded the most favorable
treatment there would be no point in invoking the clause respecting exemption from
reciprocity”: Statement of Mr. Giraud of the Secretariat, UN Doc. E/AC.32/SR.11, Jan. 25,
1950, at 5–6. The representative of the United Kingdom took the lead on this issue, noting
that he “did not see how there could be any question of a reciprocity provision applying
except in cases where the treatment of the refugee was to be the same as that accorded to
foreigners generally”: Statement of Sir Leslie Brass of the United Kingdom, UN Doc. E/
AC.32/SR.23, Feb. 3, 1950, at 4–5. This led the Chairman to observe that “the draft

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 3 .3 e xceptional s tanda rds of treatment 257

exceptional standard of treatment, the Convention requires that refugees

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

3.3.1 Most-Favored-National Treatment

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

proposed by the United Kingdom representative accurately stated what was in the minds
of the Committee members and he would therefore invite them to accept it”: Statement of
the Chairman, Mr. Chance of Canada, ibid. at 6.
417
See e.g. Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.36, Aug. 15,
1950, at 11: “His delegation believed that refugees should be treated better than other
aliens in some respects, and that the provisions in the draft Convention which accorded
better treatment to refugees than to aliens were not of such major importance as to create
grave problems for many countries. Therefore, if it could be agreed that in general
a minimum treatment should be accorded to refugees and that that treatment should be
no worse than that given to aliens in general, and that in some respects the refugees should
even have certain advantages, the articles could safely be left to the Drafting Committee.”
418
See Chapter 3.2.2 at note 266.
419
V. Chetail, “Are Refugee Rights Human Rights? An Unorthodox Questioning of the
Relations between Refugee Law and Human Rights Law,” in R. Rubio-Marin ed.,
Human Rights and Immigration 19 (2014) (Chetail, “Are Refugee Rights Human
Rights?”), at 42. Chetail regrettably overclaims by then suggesting that “[a]ccordingly,
and contrary to conventional wisdom, there exist as many refugee statuses as states parties
to the [Refugee] Convention, insofar as the content of the applicable standards to aliens
and nationals is primarily determined by the legislation of each individual state”: ibid. This
view confuses refugee status with refugee rights, the former being non-variable. The logic
of the variability of rights, however, follows from Chetail’s general observation that
contingent refugee rights are a major “guarantor of [the treaty’s] effectiveness,” in that it
does not impose on states duties beyond their capacities. In any event, it is not the case that
the content of refugee rights is determined “primarily . . . by the legislation of each
individual state” since core rights are in fact defined in absolute terms (see Chapter
3.3.3) and others may be based on de facto attribution, rather than simply on the basis
of legislation.
420
The rights of refugees to freedom of expression and association are discussed at
Chapter 6.5.
421
The right of refugees to engage in wage-earning employment is discussed at Chapter 6.1.
422
Refugee Convention, at Arts. 15, 17(1).

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 258 3 en t i t l em e n t u n d er t h e r ef u g ee c o n v e n t i o n

associative freedom and to engage in employment extended to the nationals of

any foreign state. Refugees may nonetheless still be granted less favorable
treatment in relation to these rights than that enjoyed by citizens of the host
country, subject to the requirements of non-discrimination law.423
As earlier observed, governments were not prepared routinely to assimilate
refugees to the citizens of states with which they had special economic or
political relationships.424 There was a general belief, however, that the right to
work (and the related right to freedom of association, particularly to join trade
unions) warranted treatment at this standard. In proposing that refugees enjoy
preferred access to the right to work, the French representative observed that
it was legitimate and desirable to accord the most favourable treatment to
refugees to engage in wage-earning employment, and not only the treat-
ment accorded to foreigners generally, because refugees by their very
nature were denied the support of their Governments and could not
hope for governmental intervention in their favour in obtaining excep-
tions to the general rule by means of conventions. France was thus merely
being faithful to the spirit which had heretofore guided United Nations
action in favour of refugees: the purpose of that action was to obtain for
refugees the advantages which Governments sought to have granted to
their own subjects.425
As the American representative to the Ad Hoc Committee put it, “without the
right to work, all other rights were meaningless.”426
The Committee therefore agreed to break with precedent,427 and based the
Convention’s right to work on a French proposal that refugees be granted
“the most favourable treatment given to nationals of a foreign country.”428
Governments accepted this exceptional standard of treatment with clear
awareness of the impact of their decision. In its comments on the Ad Hoc
Committee’s draft, for example, Austria recognized that the standard
amounted to a “most favoured nation clause” that would require that “hun-
dreds of thousands of refugees” be assimilated to the “relatively small”
number of foreigners traditionally granted most-favored-national access to

423
See Chapter 1.5.5. 424 See Chapter 3.2 at note 249.
425
Statement of Mr. Rain of France, UN Doc. E/AC.32/SR.13, Jan. 26, 1950, at 2.
426
Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.37, Aug. 16, 1950,
at 12.
427
“[T]he text proposed by the French delegation represented an advance upon the provi-
sions of previous conventions . . . While it was understandable that some delegations
should hesitate to accept the innovation . . . it would be surprising if the Committee should
wish to retreat from the results obtained by the previous Conventions, and to end with
a text which would contribute nothing towards the improvement of the conditions of the
refugee”: Statement of Mr. Cuvelier of Belgium, UN Doc. E/AC.32/SR.13, Jan. 26, 1950,
at 8–9.
428
France, “Draft Convention,” at 6.

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 3 .3 e xceptional s ta nd ards of t reatment 259

employment.429 The United Kingdom commented that this standard

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

429
United Nations, “Compilation of Comments,” at 43.
430
Ibid. at 44; Statement of Sir Leslie Brass of the United Kingdom, UN Doc. E/AC.32/SR.13,
Jan. 26, 1950, at 14.
431
Statement of Mr. Herment of Belgium, UN Doc. A/CONF.2/SR.9, July 6, 1951, at 8.
432
Statement of Mr. Anker of Norway, ibid. at 14.
433
As observed by the Chairman of the Ad Hoc Committee, “[i]t had, of course, been realised
that the inclusion of provisions which, without representing ideals to strive for, were too
generous for some Governments to accept, would lead to their making reservations, but it
had been thought that such a course might in the long run have a good effect even on
Governments which felt themselves unable to accord the treatment prescribed in the
Convention immediately upon signing it. Other such cases had arisen in the past where
refugees and those who had the interests of refugees at heart had addressed appeals to
Governments applying low standards, pointing to the higher standards applied by other
Governments, and so had gradually produced an improvement in their policies”:
Statement of the Chairman, Mr. Larsen of Denmark, UN Doc. E/AC.32/SR.37, Aug. 16,
1950, at 11–12. In fact, in addition to the six states (Austria, Botswana, Burundi, Iran,
Latvia, and Sierra Leone) that have reserved Art. 17 in its entirety, seventeen others have
rejected the most-favored national standard of treatment (Angola, Belgium, Brazil, Cabo
Verde, Denmark, Finland, Ireland, Luxembourg, Malawi, Netherlands, Norway, Portugal,
Spain, Sweden, Uganda, Zambia, and Zimbabwe): https://treaties.un.org, accessed Dec. 21,
2020. Yet Mr. Larsen’s optimism has been partly borne out. The reservations to Art. 17
entered by Australia, Brazil, Greece, Italy, Liechtenstein, Malta, and Switzerland have been
revoked, and that entered by Papua New Guinea has been dramatically limited: ibid.
434
Statement of the President, Mr. Larsen of Denmark, UN Doc. A/CONF/2/SR.9, July 6,
1951, at 14. As the American representative stated, it was best to “incorporate in the
convention a clause providing for a real improvement in the refugees’ [right to work], even
if that clause were to result in reservations which, it might be hoped, would not be very
numerous or extensive”: Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/
SR.13, Jan. 26, 1950, at 8.
435
This approach was strongly promoted by Yugoslavia, with the support of Germany. See
UN Doc. A/CONF/2/SR.9, July 6, 1951, at 4–5.

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 260 3 e ntitlement under the refugee convention

generally436 – and agreed that refugees would be entitled to engage in employ-

ment on the basis of “the most favourable treatment accorded to nationals of
a foreign country in the same circumstances.”437
In addition to the relevant references made by the drafters of the
Convention,438 a helpful sense of the breadth of this exceptional standard of
treatment can be distilled from the text of the reservations and declarations
entered by state parties which have not agreed to grant most-favored-national
treatment to refugees. Critically, most-favored-national treatment includes the
benefits of bilateral and multilateral arrangements with special partner states. The
“preferential treatment” which the nationals of Brazil and Portugal enjoy in each
other’s territory;439 the “privileges” of Danish, Finnish, Norwegian, and Swedish
citizens in each of those countries;440 and the “rights which, by law or by treaty”
are granted by Spain to the nationals of Andorra, the Philippines, Portugal, and
Latin America are examples.441 The benefits of special regional and sub-regional
arrangements are included442 – for example, the privileges enjoyed by nationals of
states belonging to the East African Community and the African Union.443 More
generally, most-favored-national treatment includes any privileges accorded to
foreign citizens under “special co-operation agreements,”444 “commonwealth-
type” arrangements,445 “agreements . . . for the purpose of establishing special
conditions for the transfer of labor,”446 “establishment” treaties,447 and by virtue
of any “customs, economic or political agreements.”448 Perhaps most important,
the very nature of the most-favored-national standard means that it is inherently
subject to evolution.449 As observed by Robinson,
436
“A country such as Italy . . . could definitely not consider assuring commitments regarding
the employment or naturalization of foreign refugees, which could only add to the
difficulties already confronting the Italian economy . . . [T]he Italian Government could
do no more than allow refugees to benefit by the laws and regulations concerning work,
employment, salaried professions, insurance and so on, which at the moment applied to all
aliens resident in Italy”: Statement of Mr. Del Drago of Italy, ibid. at 9.
437
Refugee Convention, at Art. 17(1). The language in Art. 15 (right of association) is the same.
438
See text at note 428 ff.
439
See reservations of Brazil and Portugal: https://treaties.un.org, accessed Dec. 21, 2020.
440
See reservations of Denmark, Finland, Norway, and Sweden: ibid. Interestingly, while
arrangements with Iceland are safeguarded by each of these four countries, Iceland
appears not to have entered a comparable reservation with regard to the privileges of
the citizens of Denmark, Finland, Norway, and Sweden: ibid.
441
See reservation of Spain: ibid.
442
See reservations of Belgium, Iran, Luxembourg, Netherlands, Spain, and Uganda: ibid.
443
See reservation of Uganda: ibid. 444 See reservation of Angola: ibid.
445
See reservation of Portugal upon acceding to the Protocol: ibid. See also reservation of
Spain, safeguarding special rights with the nationals of “the Latin American countries”:
ibid.
446
See reservation of Norway: ibid. 447 See reservation of Iran: ibid.
448
See reservations of Belgium, Iran, Luxembourg, and Netherlands: ibid.
449
For example, in February 2001 Australia and New Zealand reduced the rights automatic-
ally afforded each other’s citizens, including new requirements for citizenship, social

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 3 .3 e xceptional standa rds of treatment 261

the “most favorable treatment accorded to nationals of a foreign country”

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

3.3.2 National Treatment

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

security eligibility, and family reunification. In 2016 they complemented that change by
agreeing to ease the path to permanent residence for each other’s citizens: www.loc.gov/
law/foreign-news/article/australianew-zealand-prime-ministers-announce-agreement-
on-pathway-to-citizenship-for-new-zealanders/, accessed Feb. 1, 2020.
450
Robinson, History, at 110. 451 See Chapter 4.7. 452 See Chapter 5.4.
453
See Chapter 5.5. 454 See Chapter 4.4. 455 See Chapter 4.8. 456 See Chapter 6.3.
457
See Chapters 6.1.2 and 6.1.3. 458 See Chapter 4.5.2.
459
Refugee Convention, at Arts. 14, 16(2), 20, 22(1), 23, and 24(1). 460 Ibid. at Art. 29.
461
Ibid. at Art. 4.
462
Substantive equality may, however, be more generally required by virtue of the interaction
of the Refugee Convention with Art. 26 of the Civil and Political Covenant: see Chapter
1.5.5 at note 455. In practice, steps to ensure substantive equality for refugees may be
critically important, even as they may also be politically fraught. For example, an analysis
of the social service response to refugees arriving in low income parts of Glasgow –
predicated on no differentiation between refugees and other low income residents –
showed “that some asylum seekers did have specialist needs which were not being met
within the current structure of statutory service provision . . . [For example, as explained
by one respondent,] ‘[s]ervices that have been there for years have been very well estab-
lished for the indigenous population, and now they’re trying to slot people from other
countries and cultures into these services and sometimes it’s just not appropriate . . . Not

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 262 3 e n t i t l emen t un der the refu gee c onvention

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

all the services that are there are appropriate’”: K. Wren, “Supporting Asylum Seekers and
Refugees in Glasgow: The Role of Multi-Agency Networks,” (2007) 20(3) Journal of
Refugee Studies 391, at 407. Yet politically “[a] perceived longer-term neglect of local
needs has meant that the requirements of new asylum seekers have had to compete with
a range of other acute needs associated with poverty and exclusion . . . [so that in political
terms] ‘[y]ou can’t be seen to be making preferential treatment available to asylum
seekers’”: ibid. at 406.
463
Secretary-General, “Memorandum.” 464 Ibid. at 31. 465 Ibid. at 38.
466
Ibid. at 37. 467 Ibid. at 30.
468
Ibid. at 38. It was also noted that primary education “satisfies an urgent need,” in
consequence of which it was already compulsory in most states: ibid.
469
Ibid. at 27. 470 Ibid. at 38. 471 Ibid. at 39.

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 3 .3 e xceptional s ta nd ards of t reatment 263

the refugee’s personality.”472 It was important, he suggested, that the

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

472
Statement of Mr. Buensod of Pax Romana, UN Doc. A/CONF.2/SR.11, July 9, 1951,
at 9–10.
473
Ibid. at 10.
474
Statements of Msgr. Comte of the Holy See and Mr. Montoya of Venezuela, UN Doc. A/
CONF.2/SR.30, July 20, 1951, at 11–12.
475
“The Contracting States shall grant refugees within their territories complete freedom to
practice their religion both in public and in private and to ensure that their children are
taught the religion they profess”: UN Doc. A/CONF.2/94.
476
Egypt, Luxembourg, and the Netherlands all felt that an affirmative right to religious
freedom should be subject to the requirements of “national law”: Statements of Mr. Sturm
of Luxembourg, Mr. Mostafa of Egypt, and Baron van Boetzelaer of the Netherlands, UN
Doc. A/CONF.2/SR.30, July 20, 1951, at 11–14. Belgium and even the Holy See felt
a “public order” limitation would be acceptable: Statements of Mr. Herment of Belgium
and Msgr. Comte of the Holy See, ibid. at 14.
477
Statement of Mr. Chance of Canada, ibid. at 17.
478
Statement of the President, Mr. Larsen of Denmark, ibid. at 17.
479
Statement of Msgr. Comte of the Holy See, UN Doc. A/CONF.2/SR.33, July 24, 1951, at 7.
480
Ibid. The French representative agreed, but noted that such a position “had been rejected
[in the Style Committee] on the grounds that Contracting States could not undertake to
accord to refugees treatment more favorable than that they accorded to their own
nationals”: Statement of Mr. Rochefort of France, ibid. at 7–8. The British representative
bluntly observed that the Holy See’s approach might “be open to interpretation as an
innuendo to the effect that the treatment of nationals in respect of religious freedom was
not as liberal as it might be”: Statement of Mr. Hoare of the United Kingdom, ibid. at 8.
481
Statement of Msgr. Comte of the Holy See, ibid. at 8.

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 264 3 e n t i t l e m e n t u n d e r th e r e f u g e e co nv en t i o n

His sole concern was that [refugees] should be given equal treatment with
nationals. It was known that, precisely on account of their position as
refugees, they are frequently handicapped in the practice of their religion.
It was with that consideration in mind that he had put forward his
amendment.482
This argument for substantive equality led the representative of the Holy See to
propose a unique standard of treatment, namely that refugees should enjoy
“treatment at least as favorable as that accorded . . . nationals.”483 Governments
are thus obliged not to deny refugees any religious freedom enjoyed by citizens,
and moreover commit themselves in principle to take measures going beyond
strict formal equality in order to recognize “that religious freedom as an
abstract principle might be of little value if divorced from the practical
means of ensuring it.”484

3.3.3 Absolute Rights

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

482
Ibid.
483
The Conference approved this revised language 20–0 (1 abstention): ibid. at 9.
484
Statement of Mr. Petren of Sweden, ibid. at 9. It is clear, however, that Art. 4 does not
oblige governments to take specific affirmative measures to advance the religious freedom
of refugees. See Chapter 4.7 at notes 2305–2307.
485
A number of the Convention’s articles do not establish free-standing rights, but define the
context within which enumerated rights must be implemented. See Refugee Convention,
at Arts. 2, 3, 5–12(1), and 35–46.
486
Ibid. at Arts. 25, 27, and 28. 487 Ibid. at Arts. 12(2), 30–33. 488 Ibid. at Art. 16(1).
489
Ibid. at Art. 16(2). See Chapter 5.5.

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 3.4 p r o h i b i t i o n o f d i s c r i m i n a t i o n b e t w e en r e f u g e es 265

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

3.4 Prohibition of Discrimination between and among Refugees

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

490
See Chapter 1.1 at note 7.
491
“[I]n principle the right of a refugee to sue and be sued is not challenged”: Secretary-
General, “Memorandum,” at 30.
492
S. Fredman, Discrimination Law (2011) (Fredman, Discrimination), at 109.
493
See Chapter 1.5.5. 494 Ibid. at note 471 ff.

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 266 3 e n t i t l e m e n t u n d e r th e r e f u g e e co nv en t i o n

the legal duty of non-discrimination nonetheless provide a meaningful

response to more specific types of disfranchisement which may be experienced
by subsets of the refugee population?
To a real extent, the inappropriateness of differential allocations of rights
between and among refugees is clear from the fact that the language of the
Refugee Convention presupposes that whatever entitlements are held by virtue
of refugee status should inhere in all refugees. In setting the refugee definition,
the drafters of the Convention were at pains carefully to limit the beneficiary
class. They excluded, for example, persons who have yet to leave their own
country, who cannot link their predicament to civil or political status, who
already benefit from surrogate national or international protection, or who are
found not to deserve protection.495 Beyond these explicit strictures, however,
refugees are conceived as a generic class, all members of which are equally
worthy of protection.496
Yet there are in fact often significant differences in the way that particular
subsets of Convention refugees are treated by states. In some cases, this is
because a state plays politics with refugee protection. For many years, the
United States pursued a formal policy of interdiction and routine detention
of Haitian refugees, even as – for clearly political reasons – it not only allowed
Cuban refugees free access to its territory, but gave them an expedited path to
permanent residency in the US.497 China also has taken a politicized approach
to asylum in refusing recognition to any refugee seeking protection from its
North Korean ally.498
495
See generally Grahl-Madsen, Status of Refugees I; and Hathaway and Foster, Refugee
Status.
496
The possibility of limiting protection to pre-1951 and European refugees has been
prospectively abolished by the advent of the 1967 Refugee Protocol: see Chapter 1.5.1.
497
“The United States has singled out Cubans and Haitians for diametrically opposite
treatment. Cubans who quit their island are assisted in coming to the US, are called
political refugees, and are given asylum, while Haitians who leave their island are labeled
economic migrants, interdicted at sea, and returned to Haiti”: N. and N. Zucker, “United
States Admission Policies Toward Cuban and Haitian Migrants,” paper presented at the
Fourth International Research and Advisory Panel Conference, Oxford, Jan. 5–9, 1994, at
1. “After it was accused of discrimination, the Carter administration granted Haitians the
status of ‘entrants,’ on par with Cubans; however, in mid-1981 the Reagan administration
reinstated differential treatment and began incarcerating apprehended Haitians . . .
[President Clinton] pledged to change the policy . . . [but he] reversed himself immediately
after taking office to prevent a flood of refugees that would weaken his political base in
Florida”: A. Zolberg, “From Invitation to Interdiction: US Foreign Policy and
Immigration since 1945,” in M. Teitelbaum and M. Weiner eds., Threatened Peoples,
Threatened Borders: World Migration and US Policy 144 (1995), at 145–146. The failure of
the American judiciary to end the double standard is described in T. James, “A Human
Tragedy: The Cuban and Haitian Refugee Crises Revisited,” (1995) 9(3) Georgetown
Immigration Law Journal 479.
498
“China, North Korea’s principal ally, claims it is bound by its treaty obligations to
Pyongyang”: “Inside the Gulag,” Guardian, July 19, 2002, at 23. “[T]he underlying reason

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 3.4 p r o h i b i t i o n o f d i s c r i m i n a t i o n b e t w e en re f u g e es 267

Most commonly, differentiation is based on the nationality of refugees.

Israel’s designation by law of refugees arriving from sub-Saharan Africa as
“infiltrators” has resulted in the long-term detention of Eritrean and Sudanese
refugees.499 Yemen grants government-issued identification documents with
entitlement to reside and work in the country only to Somali refugees,500

Beijing does not welcome them, Chinese analysts say, is that it believes the fall of
Communism in Eastern Europe was precipitated when Hungary allowed tens of thou-
sands of East German refugees to pass through on their way to the West in 1989. ‘If we
gave them refugee status, millions would pour over our doorstep,’ said a Chinese scholar
who advises the North Korean and Chinese governments. ‘That would cause
a humanitarian crisis here and a collapse of the North. We can’t afford either’”:
J. Pomfret, “China Cracks Down on North Korean Refugees,” Washington Post, Jan. 22,
2003, at A-01. The UN High Commissioner for Refugees announced that “[i]n China, the
plight of North Koreans who leave their country illegally remains a serious concern. For
a number of years UNHCR has been making efforts to obtain access to them, but this has
consistently been denied. An analysis of currently available information recently carried
out by our Department of International Protection concludes that many North Koreans
may well be considered refugees. In view of their protection needs, the group is of concern
to UNHCR . . . [T]he principle of non-refoulement must be respected”: “UNHCR
Designates North Korean Refugees as a Group of Concern,” Opening Statement by
Mr. Ruud Lubbers, United Nations High Commissioner for Refugees, at the Fifty-
Fourth Session of the Executive Committee of the High Commissioner’s Program,
Geneva, Sept. 29, 2003.
499
The enactment of the Anti-Infiltration Law “branded all sub-Saharan Africans who
entered Israel from Egypt as ‘infiltrators’” and provided for their extended detention:
Human Rights Watch, “Make Their Lives Miserable: Israel’s Coercion of Eritrean and
Sudanese Asylum Seekers to Leave Israel” (Sept. 2014), at 21. More generally, claims by
Eritrean and Sudanese asylum-seekers are rarely recognized, a result dramatically at odds
with international trends. Government-issued data confirm that, of a total of 5,573
refugees from Sudan and Eritrea who submitted claims for protection between 2009 and
early 2015, only four applicants (0.07%) were recognized in contrast with an international
recognition rate of 87% and 56% for Eritreans and Sudanese respectively: I. Lior, “Israel
has Granted Refugee Status to Only Four Sudanese and Eritrean Asylum Seekers,”
Haaretz, Feb. 19, 2015. Moreover, although Israeli immigration policies resulted in
dreadfully low recognition rates for refugees generally (0.25%), the statistics issued
demonstrate a recognition rate over five times higher (0.37%) for refugees of all other
nationalities combined than for their Eritrean and Sudanese counterparts (0.07%): ibid.
500
“All Somali refugees receive government-issued identification documents (ID) that accord
them the right to live and work in Yemen. But non-Somali refugees are not issued these or
any other official identification documents; they receive only a form issued by UNHCR
acknowledging that the agency has recognized them as refugees”: Human Rights Watch,
“Hostile Shores: Abuse and Refoulement of Asylum Seekers and Refugees in Yemen,” Dec.
20, 2009, at 41. These problems were exacerbated by the government’s issuance of various
orders to deport all non-Somali refugees. See R. Jureidini, “Mixed Migration Flows: Somali
and Ethiopian Migration to Yemen and Turkey” (2010), at 77. More generally, “[i]f the
security forces intercept a mixed group of Somalis and Ethiopians who have arrived
together, they typically stop the group and divide them by nationality. The Somalis in
the group are either let go or provided with transportation to the UNHCR-run transit
point at Bab-el-Mandeb. The Ethiopians in the group are all arrested and put on a fast

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 268 3 e n t i t l emen t un der the refu gee c onvention

leaving Ethiopian and other refugees in destitution. India has allowed Tibetan
refugees full access to employment, but limited – in some cases severely – the
opportunities to earn a livelihood for refugees from Sri Lanka and, in particu-
lar, those from Bangladesh.501
Nationality-based discrimination even occurs at the most basic level of
status recognition. In 2010, Australia invoked “evolving circumstances”502 to
impose a blanket suspension on the processing of all protection claims from
the nationals of only two countries, Sri Lanka and Afghanistan,503 leaving all
“irregular maritime arrivals” from those two countries in indefinite
detention.504 Sudan has recognized the refugee status of persons arriving
from neighboring countries (except Chad), but has expected refugees from
Arab states “to stay on an informal and unofficial basis.”505 Most egregiously,
there is increasingly a determination to systematize nationality-based denials
of access to protection. The European Union has gone farthest, providing by
treaty that member states are ordinarily to declare any refugee claim from

track towards deportation or refoulement”: Human Rights Watch, “Hostile Shores,” at

26, 29.
501
Tibetan refugees have been issued certificates of identity which enable them to undertake
gainful employment, and even to travel abroad and return to India. Sri Lankan refugees, in
contrast, have been allowed to engage only in self-employment, while Bangladeshi refu-
gees have not been allowed to undertake employment of any kind: B. Chimni, “The Legal
Condition of Refugees in India,” (1994) 7(4) Journal of Refugee Studies 378, at 393–394.
502
Australia, Minister for Foreign Affairs and Trade, “Changes to Australia’s immigration
processing system,” Apr. 9, 2010, https://reliefweb.int/report/afghanistan/changes-austra
lias-immigration-processing-system, accessed Feb. 1, 2020.
503
Apparently issued in response to the termination of the civil war in Sri Lanka and the
armed conflict in Afghanistan, the prematurity of this determination is evidenced by the
fact that UNHCR had yet to issue its latest review of conditions in both countries and,
more importantly, the repeated acts of violence that caused flows of refugees to continue
unabated during the relevant time period: “Cynical Ploy Denies Refugee Obligations,”
Canberra Times, Apr. 10, 2010. Human Rights Watch rightly criticized the order as
a thinly veiled attempt to deter the arrival of refugees and highlighted the suspension of
processing on the basis of nationality as “discriminatory on its face. While asylum
procedures are suspended for Afghans and Sri Lankans because the situations in their
countries are ‘evolving,’ asylum procedures will apparently keep apace for nationals of
countries that are not evolving, including countries that have produced far fewer refugees
than either Afghanistan or Sri Lanka”: Human Rights Watch, “Letter to Australian
Minister of Immigration Chris Evans on Processing New Asylum Claims from Sri
Lanka and Afghanistan,” Apr. 14, 2010.
504
“Irregular maritime arrivals claiming asylum will continue to be subject to mandatory
detention, including those subject to the suspension”: Australia, Minister for Foreign
Affairs and Trade, “Changes to Australia’s immigration processing system,” Apr. 9, 2010,
https://reliefweb.int/report/afghanistan/changes-australias-immigration-processing-sys
tem, accessed Feb. 1, 2020.
505
UN Committee on the Elimination of Racial Discrimination, “Concluding Observations
of the Committee on the Elimination of Racial Discrimination: Sudan,” UN Doc. CERD/
C/304/Add.116, Apr. 27, 2001, at [15].

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 3.4 p r o hi b i t i o n o f d i s c r i m i n a t i o n b e t w e e n r e f u g e e s 269

a citizen of any EU country to be “manifestly unfounded.”506 The EU has also

embraced the notion of so-called “safe country of origin” rules, subjecting
whole refugee groups defined by nationality to truncated procedures.507
Canada emulated the EU’s approach until 2019,508 constraining the procedural
rights of refugee claimants from more than forty listed countries.509
506
“Given the level of protection of fundamental rights and freedoms by the Member States of
the European Union, Member States shall be regarded as constituting safe countries of
origin in respect of each other for all legal and practical purposes in relation to asylum
matters. Accordingly, any application for asylum made by a national of a Member State
may be taken into consideration or declared admissible for processing by another Member
State only in [exceptional] cases”: Protocol on Asylum for Nationals of Member States of
the European Union, annexed to the Treaty establishing the European Community, OJ
1997 C340/1, at 103 (Nov. 10, 1997) (“Aznar Protocol”). As Stern observes, “[t]he essential
purpose of the [Aznar] Protocol . . . [is] to provide EU Member States a basis for refusing
to accept an asylum application lodged by an EU national; a refusal based not [on] an
individual assessment of the case but on political decisions in general . . . [A] majority of
EU Member States appears to consider the Protocol binding and thus applies the principle
set out therein”: R. Stern, “At a Crossroad? Reflections on the Right to Asylum for
European Union Citizens,” (2014) 33(2) Refugee Survey Quarterly 54 (Stern, “At
a Crossroad?”), at 61–62.
507
Parliament and Council Directive 2013/32/EU of 26 June 2013 on common procedures for
granting and withdrawing international protection, OJ 2013 L180/60 (“EU Procedures
Directive”), at Annex I. “[F]or a claim to be expedited as ostensibly unfounded, both the
listing of a country as safe and a failure to establish personal circumstances rebutting the
presumption are required in the individual case. This, however, entails a higher burden of
proof to be discharged by nationals of listed countries as opposed to . . . the shared burden
of proof normally applicable in asylum procedures”: Asylum Information Database
(AIDA), “Safe Countries of Origin: A Safe Concept?” AIDA Legal Briefing No. 3, Sept.
2015, at 9. See generally M. Hunt, “The Safe Country of Origin Concept in European
Asylum Law: Past, Present and Future,” (2014) 26(4) International Journal of Refugee
Law 500.
508
“Canada was not only emulating [European safe country of origin] practices, but also,
informed by the Aznar Protocol, effectively barring asylum seekers from the EU”:
C. Costello, “Safe Country? Says Who?,” (2016) 28(4) International Journal of Refugee
Law 601 (Costello, “Safe Country?”), at 616. As Macklin rightly notes in this regard,
“[a]sylum policies tend to migrate across borders with notably greater ease than asylum
seekers themselves”: A. Macklin, “A Safe Country to Emulate? Canada and the European
Refugee,” in H. Lambert et al. eds., The Global Reach of European Refugee Law 99 (2013), at
99. The ways in which deterrent practices are shared among developed countries are
carefully analyzed in D. Ghezelbash, Refuge Lost: Asylum Law in an Interdependent World
(2018).
509
Immigration and Refugee Protection Act, SC 2001, s. 109.1(2)(a). This policy was ended in
May 2019: www.canada.ca/en/immigration-refugees-citizenship/services/refugees/claim-
protection-inside-canada/apply/designated-countries-policy.html, accessed Feb. 1, 2020.
Countries were designated by the Minister on the basis of past outcomes, leading to
concern that “risk designations do not reflect present conditions in the country of origin.
Indeed . . . these processes may be liable to be self-perpetuating, in that designation will in
likelihood have a significant impact on rejection rates (given the truncated procedural
entitlements, meaning that there will be a higher likelihood of false negative decisions),
which, in turn, may provide the basis for designation”: Costello, “Safe Country?,” at 617.

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 270 3 e n t i t l emen t un der the refu gee c onvention

Governments may also treat refugees differently on account of their reli-

gion. Hungary and Slovakia, for example, resisted the regional resettlement of
non-Christian refugees from Greece,510 while the United States issued a ban on
the resettlement of refugees from several countries that were initially identified
on the basis of their predominantly Muslim populations.511 India similarly
proposed in 2019 to grant citizenship to resident minority faith refugees from
Afghanistan, Bangladesh, and Pakistan who entered the country before 2015,
but deliberately excluded Muslim refugees from that initiative.512
Gender and sexual identity can play an important role in limiting access to
refugee rights, as was the case for women refugees from Bhutan when Nepal
refused to provide food and shelter to other than male heads of refugee
households.513 Conversely, in Jordan male refugee spouses of Jordanian
women have restricted access to residence permits, employment, and public
healthcare services, and are barred by law from conferring citizenship on their
children.514 And gay, lesbian and other sexual minority refugees in South

510
R. Noack, “This Map Helps Explain Why Some European Countries Reject Refugees, and
Others Love Them,” Washington Post, Sept. 8, 2015; see also “Migrant Crisis: Slovakia
‘Will Only Accept Christians,’” BBC, Aug. 18, 2015.
511
A. Burns, “2 Federal Judges Rule Against Trump’s Latest Travel Ban,” New York Times,
Mar. 15, 2017. “The order didn’t explicitly single out Muslim immigrants. But to many, the
connection was clear enough on its own. After all, before candidate Trump promised to
bar immigration based on country, he’d called for a ‘total and complete shutdown of
Muslims entering the United States’”: D. Lind, “The Rise, Fall, and Partial Resurrection of
Trump’s Travel Ban, Explained,” Vox, June 26, 2017. In June 2018, however, the US
Supreme Court upheld the travel ban on a 5–4 vote: Trump v. Hawaii, (2018) 138 S. Ct.
2392 (US SC, June 26, 2018). In early 2020 the Trump administration expanded the scope
of the ban to include an additional six countries with “substantial Muslim populations” –
Burma (Myanmar), Eritrea, Nigeria, Sudan, Kyrgyzstan, and Tanzania: Z. Kanno-Youngs,
“US Adds 6 Countries, Including Nigeria, to Restricted Travel List,” New York Times, Feb.
1, 2020, at A9. The fact that not all of these states are mainly Muslim was suggested to be an
effort “to circumvent claims that the ban was religious discrimination”: “‘Muslim Ban
Should End, not Expand’: Groups Slam Trump Travel Ban,” Al Jazeera, Jan. 31, 2020.
512
“‘The Indian government’s claim that the citizenship law aims to protect religious minor-
ities rings hollow by excluding Ahmadiyya from Pakistan and Rohingya from Myanmar,’
said Meenakshi Ganguly, South Asia director [for Human Rights Watch]. ‘The bill uses
the language of refuge and sanctuary, but discriminates on religious grounds in violation
of international law’”: Human Rights Watch, “India: Citizenship Bill Discriminates
Against Muslims,” Dec. 11, 2019.
513
“This policy . . . imposes particular hardship on women trying to escape abusive mar-
riages. Either these women must stay in violent relationships, leave their relationships
(and thus relinquish their full share of aid packages), or marry another man, in which case
they lose legal custody of their children”: Human Rights Watch, “Nepal/Bhutan: Refugee
Women Face Abuses,” Sept. 24, 2003. See generally Human Rights Watch, “Trapped by
Inequality: Bhutanese Refugee Women in Nepal” (2003).
514
This policy, applied generally to non-citizens, contrasts with the approach taken to female
refugee spouses, who are automatically granted citizenship rights by virtue of their
marriage to Jordanian men: J. Emanuel, “Discriminatory Nationality Laws in Jordan

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 3.4 pr o h i bi t i o n o f di s cr i mi n at i o n b etween refu gees 271

Africa report that law enforcement officials have ignored their pleas for
protection from physical and verbal abuse, often allowing their attackers to
go free.515
Differential treatment may even be based on a refugee’s mode of arrival.
Since the early 1990s, Australian law has provided for the routine and ongoing
detention of refugees arriving to seek protection if they present themselves
without a valid entry visa.516 Canada allows for designation by the Minister of
any group of two or more refugee claimants as “irregular arrivals” if, for
example, they arrive with false documentation believed to have been provided
by smugglers.517 Refugees so designated are subject to automatic detention and
may not be considered to be “lawfully present” in Canada, leading one com-
mentator to observe that they are afforded “little more than protection from
refoulement.”518 A 2013 amendment to New Zealand law similarly provides for

and their Effect on Mixed Refugee Families,” Research Paper 2012-4 (2012), at 9–10. One
of the law’s most alarming effects – that it renders stateless any children born to such
couples – has been attenuated by the passage in 2014 of a law granting certain privileges to
affected children. But the exclusion of male refugee spouses from core rights remains
intact: R. Husseini, “Gov’t Announces Privileges for Children of Jordanian Women
Married to Foreigners,” Jordan Vista, Nov. 9, 2014; E. Oddone, “Jordanian Progeny
Gain Ground in Nationality Fight,” Al Jazeera, May 5, 2015.
515
Organization for Refuge, Asylum, and Migration, “Blind Alleys: The Unseen Struggles of
Lesbian, Gay, Bisexual, Transgender and Intersex Urban Refugees in Mexico, Uganda, and
South Africa,” Part II: Country Findings: South Africa, Feb. 2013, at 9-12. “Despite South
Africa’s liberal anti-discrimination and immigration laws with regards to LGBTI persons,
such laws are not always respected or enforced . . . LGBTI individuals in South Africa have
reported experiencing unfair treatment and verbal and physical abuse, including by law
enforcement and other state officials . . . Police officers often ignore cases involving
foreigners and mock LGBTI persons when they report a crime. At times, law enforcement
officers physically and sexually assault LGBTI refugees and asylum seekers”: PLE Against
Suffering Oppression and Poverty, “Economic Injustice: Employment and Housing
Discrimination Against LGBTI Refugees and Asylum Seekers in South Africa” (2013), at
3, 5.
516
Parliament of Australia, “Immigration detention in Australia,” Mar. 20, 2013, www
.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/
pubs/BN/2012-2013/Detention, accessed Feb. 1, 2020.
517
Protecting Canada’s Immigration System Act, S.C. 2012, c. 17.
518
A. Neylon, “Ensuring Precariousness: The Status of Designated Foreign National under
the Protecting Canada’s Immigration System Act 2012,” (2015) 27(2) International
Journal of Refugee Law 297, at 298. In December 2012, it was reported that “[f]or the
first time since a new refugee law was passed last June, the federal government has declared
that five different groups of Romanian refugee claimants, who entered Canada on five
different occasions over a period of several months, are to be designated as a single group.
The consequences of designation are two weeks to one year in prison for every member of
the group over fifteen years of age, and secondly, separation from their families for more
than five years, even if they are accepted as refugees”: Canadian Association of Refugee
Lawyers, “Press Release: Canadian Association of Refugee Lawyers (CARL) Challenges the
Legality of Group Designation of Five Groups of Refugee Claimants,” Dec. 6, 2012.

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 272 3 en t i t l e m e n t u n d er t h e r ef u g ee c o n v e n t i o n

the non-reviewable detention of asylum-seekers and others arriving as part of

a “mass arrival group” for an initial period of up to six months.519
In sum, refugees are frequently subjected to differences in treatment based
on factors extraneous to their need for protection. The net result is a critical
challenge to the notion that a universal common denominator of rights can be
said to follow from refugee status.
Refugee Convention, Art. 3 Non-discrimination
The Contracting States shall apply the provisions of this Convention
to refugees without discrimination as to race, religion or country of
origin.
Economic, Social and Cultural Covenant, Art. 2
...
2. The States Parties to the present Covenant undertake to guar-
antee that the rights enunciated in the present Covenant will be
exercised without discrimination of any kind as to race, colour,
sex, language, religion, political or other opinion, national or
social origin, property, birth or other status.
3. Developing countries, with due regard to human rights and their
national economy, may determine to what extent they would
guarantee the economic rights recognized in the present
Covenant to non-nationals.

Civil and Political Covenant, Art. 2(1)

Each State Party to the present Covenant undertakes to respect and to
ensure to all individuals within its territory and subject to its jurisdic-
tion the rights recognized in the present Covenant, without distinc-
tion of any kind, such as race, colour, sex, language, religion, political
or other opinion, national or social origin, property, birth or other
status.
Civil and Political Covenant, Art. 26
All persons are equal before the law and are entitled without any
discrimination to the equal protection of the law. In this respect, the
law shall prohibit any discrimination and guarantee to all persons

519
The 2013 Immigration Amendment Act provides for the detention of asylum-seekers and
others arriving in a group of thirty or more persons: New Zealand, Immigration
Amendment Act 2013, Act 2013 No. 39, assented to June 18, 2013. The law authorizes
the detention of such groups for up to six months initially, with the possibility to renew
every twenty-eight days thereafter: Immigration Amendment Act 2013, s. 11 amending
s. 307 of the Immigration Act 2009; see also Amnesty International, “Demanding Real
Protection: Strong Human Rights Framework Needed to Address Failures to Protect,”
Submission to the UN Universal Periodic Review of New Zealand, Feb. 2014, at 5.

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 3.4 p rohibition of discrimination between r efugees 273

equal and effective protection against discrimination on any ground

such as race, colour, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status.
The drafting history of the Refugee Convention provides little guidance on
the substantive reach of Art. 3’s duty of non-discrimination. The Swiss delegate,
for example, acknowledged only “measures of a humiliating character” to be
discriminatory.520 Egypt tried unsuccessfully to exclude action necessary for the
maintenance of public order from the scope of discrimination.521 No interest
was shown in a Greek effort to ensure that actions necessary for “public safety”
were immune from scrutiny under Art. 3.522 The most precise comment on the
meaning of non-discrimination was offered by the American representative,
who thought that discrimination meant “denying to one category of persons
certain rights and privileges enjoyed by others in identical circumstances.”523 In
line with principles of treaty interpretation earlier described,524 this conceptual
uncertainty should be remedied by taking account of the parameters of the duty
of non-discrimination elaborated under the terms of cognate treaties – includ-
ing, for example, under the Human Rights Covenants, described above.525 Most
fundamentally, this means that even a differential allocation of rights on the basis
of a prohibited ground will not amount to discrimination if demonstrated to
meet international standards of “reasonableness.”526
In drafting Art. 3, consensus was reached on the critical point that the duty of
non-discrimination is not restricted to actions taken within a state’s territory, but
governs as well a state’s actions toward persons seeking to enter its territory. While
the English language draft of Art. 3 produced by the Second Session of the Ad Hoc
Committee appeared to prohibit only discrimination by a state “against a refugee
within its territory,”527 the French language formulation was not predicated on
successful entry into a state’s territory.528 At the Conference of Plenipotentiaries,

520
Statement of Mr. Schurch of Switzerland, UN Doc. A/CONF.2/SR.4, July 3, 1951, at 15.
521
Statement of Mr. Mostafa of Egypt, UN Doc. A/CONF.2/SR.5, July 4, 1951, at 12. The British
delegate thought that “the acknowledged right of any State to safeguard the requirements of
public order and morality was extraneous to the subject-matter of Article 3,” while the Dutch
representative argued that “[i]t would be dangerous to add a provision to Article 3 which
would to some extent emasculate it”: Statements of Mr. Hoare of the United Kingdom and
Baron van Boetzelaer of the Netherlands, ibid. at 14.
522
Statement of Mr. Philon of Greece, ibid. at 12–13.
523
Statement of Mr. Warren of the United States of America, ibid. at 4.
524
See Chapter 2.2.
525
The practice of the Human Rights Committee in interpreting the duty of non-
discrimination is described in Chapter 1.5.5.
526
See Chapter 1.5.5 at note 468. 527 UN Doc. E/1850, Aug. 25, 1950, at 15.
528
“Aucun Etat contractant ne prendra de mesures discriminatoires sur son territoire, contre
un réfugié en raison de sa race, de sa religion ou de son pays d’origine”: UN Doc. A/
CONF.2/72, July 11, 1951, at 1. See also Statement of the President, UN Doc. A/CONF.2/
SR.4, July 3, 1951, at 19.

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 274 3 e ntitlement under the refugee c onvention

the French delegate successfully argued against the narrowness of the duty pro-
posed in the English text:
[T]he statement that the State should not discriminate against a refugee
within its territory on account of his race, religion or country of origin
seemed to suggest that the State was perfectly entitled to discriminate
against persons wishing to enter its territory, that was to say, against
persons not yet resident in its territory. He therefore proposed that the
words “within its territory” be deleted.529
The rationale for the territorial limitation captured in the draft English lan-
guage text had, in fact, been simply to ensure that states were left complete
freedom to administer their own systems of immigration law.530 Once it was
recognized that the admission of refugees to durable asylum or permanent
residency is not in any event governed by the Refugee Convention,531 it proved
possible to secure the consent of states to a duty of non-discrimination with
extraterritorial application.532 In line with the fact that Art. 3 governs all rights
in the Refugee Convention, including Art. 33’s duty of non-refoulement, the
American interdiction of Haitian asylum-seekers on the high seas, while sim-
ultaneously allowing Cuban asylum-seekers to come to the United States,533
thus raised an issue within the purview of Art. 3’s duty of non-discrimination.
In contrast to the agreement on this point, there was real debate about the
substantive breadth of Art. 3. As initially conceived, the provision was intended to
prohibit discrimination not only against particular subsets of the refugee popula-
tion, but against refugees in general. The Belgian draft of Art. 3 submitted to the Ad
Hoc Committee provided that: “The High Contracting Parties shall not discrimin-
ate against refugees on account of race, religion or country of origin, nor because
529
Statement of Mr. Rochefort of France, UN Doc. A/CONF.2/SR.4, July 3, 1951, at 18–19.
530
“The history of the drafting of Article 3 showed that if the words ‘within its territory’ were
deleted, the Convention would affect the whole field of immigration policy . . . There was
no subject on which Governments were more sensitive or jealous regarding their freedom
of action than on the determination of immigration policies . . . If the proposed deletion
were made, certain Governments might feel that their policy of selection was affected by
the Convention, and they might accordingly be hesitant about acceding to it”: Statement of
Mr. Warren of the United States of America, UN Doc. A/CONF.2/SR.5, July 4, 1951, at 5.
531
“It was noted during the discussion that . . . the Convention does not deal either with the
admission of refugees (in countries of first or second asylum) or with their resettlement (in
countries of immigration)”: “Report of the Committee Appointed to Study Article 3,” UN
Doc. A/CONF.2/72, July 11, 1951, at 3.
532
“It was thought that the words ‘within its territory’ in the place where they occurred in the
English text could be interpreted a contrario as permitting such discrimination outside the
territory of the Contracting State. A document drawn up under the auspices of the United
Nations ought not to be susceptible to such an interpretation [emphasis added]”: ibid. at 2.
The consensus definition of this Committee – which deleted the limitation “within its
territory” – was the basis for the version of Art. 3 finally adopted: UN Doc. A/CONF.2/
SR.18, July 12, 1951, at 18, and UN Doc. A/CONF.2/SR.24, July 17, 1951, at 19–21.
533
See text at note 497.

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 3.4 p rohibition of discrimination between r efugees 275

they are refugees [emphasis added].”534 The latter part of the duty – imposing a duty
not to discriminate on the basis of refugee status itself – did not survive the
Conference of Plenipotentiaries, though some delegates clearly believed it should
be retained. For example, the French representative insisted that equality between
groups of refugees was an insufficiently inclusive goal, as “if all refugees received
equally bad treatment, the State concerned could claim to have observed the
provisions of Article 3.”535 Particularly where all refugees in a given asylum state
belong to the same race or religion, or come from the same country, skewed rights
allocations that are in substance racially, religiously, or nationally motivated might
not be caught by a simple prohibition of discrimination between classes of refugees
(since all refugees would be equally harmed). Some representatives therefore
identified the need for a stronger commitment to prohibit the kinds of discrimin-
atory actions that generate refugee flows in the first place.536
Despite these concerns, the Israeli delegate successfully moved the deletion of
Art. 3’s prohibition of discrimination against refugees in general on the grounds
that this issue was already regulated by the Convention’s provisions on required
standards of treatment.537 This position was in line with the view he had earlier
expressed in the Ad Hoc Committee that priority should be given to the express
language which defined the various levels of obligation:
It was important to clear up the exact place of Article 3 in the Convention
and its relation to the other articles. It proclaimed a principle, but the exact
conditions under which refugees might enjoy the benefits conferred by it
were enumerated in later articles. There was nothing abnormal about that.
The United Nations Charter itself began by speaking of the “sovereign
equality” of all members of the United Nations and then proceeded to
divide those members into great Powers and small Powers, permanent and
non-permanent members of the Security Council, members with the right
of veto and members without. There would be no objection to retaining
Article 3 as formulated, on the understanding that its function was to

534
Statement of Mr. Cuvelier of Belgium, UN Doc. E/AC.32/SR.24, Feb. 3, 1950, at 11.
535
Statement of Mr. Rochefort of France, UN Doc. A/CONF.2/SR.4, July 3, 1951, at 18.
536
“Such a provision was all the more necessary because most refugees had left their countries
of origin in order to escape discrimination on grounds of race, religion, or political
opinion”: Statement of Mr. Cuvelier of Belgium, UN Doc. E/AC.32/SR.24, Feb. 3, 1950,
at 11.
537
Statement of Mr. Robinson of Israel, UN Doc. A/CONF.2/SR.4, July 3, 1951, at 17–19.
While the textual modification to Art. 3, in which the words “nor because they are
refugees” were deleted, arguably determines this issue, it should be noted that even after
the adoption of the Israeli motion, remarks of the Australian, French, and American
delegates during the final substantive discussion of this article support a broader reading:
UN Doc. A/CONF.2/SR.5, July 4, 1951, at 7–9. Moreover, the final language proposed by
the Style Committee was said to be primarily designed to restrict the substantive ambit of
this duty of non-discrimination to actions of a kind regulated by the Refugee Convention:
UN Doc. A/CONF.2/72, July 11, 1951, at 3.

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 276 3 e ntitlement un der the refugee c onvention

establish a principle to which the exceptions would be specified in later

articles, as was usual practice in any legal instrument.538
It is, of course, true that the extent of permissible differentiation between
refugees and citizens in the delivery of rights is explicitly set out in the
Refugee Convention’s mixed contingent and absolute rights structure.539
Many of the rights in regard to which the issue of discrimination vis-à-vis
nationals might arise are required to be implemented only to the extent that
they are guaranteed to some other category of non-citizens.540 The Refugee
Convention thus clearly presumes the legitimacy of treating refugees less
favorably than citizens with respect to any of the rights defined by
a contingent standard less than nationality. For example, Art. 17 requires
only that refugees benefit from “the most favorable treatment accorded to
nationals of a foreign country in the same circumstances” as regards the right
to work. In view of this clear language, the structure of the Refugee Convention
argues against a finding of discrimination simply because refugees enjoy access
to work on terms less favorable than those extended to citizens.
Conversely, a duty of non-discrimination between citizens and refugees
would add nothing to the force of those rights already defined to mandate
implementation on terms of parity with citizens. All refugees must be assimi-
lated to nationals in terms of the rights to rationing, primary education, and
fair taxation.541 Where the relevant degree of attachment is satisfied, refugees
are also entitled to national treatment in regard to religion and religious
education, artistic rights and industrial property, public relief, labor legislation,
social security, and legal assistance and security for costs before the courts.542
The duty to implement these rights on terms of parity with nationals is actually
more powerful than a duty of non-discrimination relative to nationals would
be, since the issue of reasonable differentiation inherent in non-discrimination
analysis simply does not arise.
As discussed earlier,543 the prohibition of generalized discrimination
against refugees is in any event now largely achieved by the binding duty of
non-discrimination subsequently codified in the Human Rights Covenants.
538
Statement of Mr. Robinson of Israel, UN Doc. E/AC.32/SR.34, Aug. 14, 1950, at 9.
539
See Chapters 3.2 and 3.3.
540
Freedom of association and the right to engage in employment are guaranteed at the level
of most-favored-national treatment; the rights to private property, internal freedom of
movement, housing, and to engage in self- and professional employment are granted to
refugees only to the extent afforded aliens generally.
541
Refugee Convention, at Arts. 20, 22, and 29.
542
See Chapter 3.3.2. Equality of treatment with regard to religion and religious education is
guaranteed to all refugees “within the territory”; rights to public relief, and to benefit from
labor and social security legislation, to all refugees who are “lawfully staying”; and the
protection of artistic rights and industrial property and access to legal assistance and
avoidance of security for costs to refugees who are “habitually resident.”
543
See Chapter 1.5.5.

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 3.4 p r o h i b i t i o n o f d i s c r i m i n a t i o n b et w e en r e f u g ee s 277

Art. 2 of each of the Covenant on Civil and Political Rights and the Covenant
on Economic, Social and Cultural Rights prohibits discrimination on the basis
of a list of grounds, including “other status.”544 Relying on this open-ended
formulation, the duty of non-discrimination has been authoritatively inter-
preted to establish the general rule “that each one of the rights of the Covenant
must be guaranteed without discrimination between citizens and aliens,”545
and specifically to require that rights not be limited to citizens of a state, but
that they “must also be available to all individuals, regardless of nationality or
statelessness, such as asylum-seekers [and] refugees.”546 Unlike Art. 3 of the
Refugee Convention (which prohibits only discrimination of particular kinds
against refugees – namely on the basis of race, religion, or country of origin),
the duty set by the Covenants is thus fully inclusive, prohibiting every kind of
status-based discrimination (including on the basis of refugee status) in rela-
tion to a right established by the Covenants.
This guarantee of non-discrimination found in Art. 2 of each of the Human
Rights Covenants therefore partly fills the gap left by the limited prohibition of
discrimination against refugees in general in the Refugee Convention.
First, where a given right is found in both the Refugee Convention and one
of the Covenants, Art. 2 of the Covenants disallows discrimination relative to
nationals. In such circumstances, it is simply not necessary to rely on the
relevant refugee right in order to contest treatment below national treatment.
Since virtually all rights in the Covenants must be implemented without
discrimination between nationals and non-citizens,547 refugees who invoke

544
Ibid. at note 389.
545
UN Human Rights Committee, “General Comment No. 15: The Position of Aliens under
the Covenant” (1986), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [2].
546
UN Human Rights Committee, “General Comment No. 31: The Nature of the General
Legal Obligation Imposed on States Parties to the Covenant” (2004), UN Doc. HRI/GEN/
1/Rev.7, May 12, 2004, at [10]. While this General Comment interprets only the Civil and
Political Covenant, it is reasonable to assume that the virtually identical prohibition of
discrimination on the basis of “other status” in the Economic, Social and Cultural
Covenant will be similarly interpreted to protect the entitlement of aliens to national
treatment in relation to its catalog of rights. While not explicitly endorsing an interpret-
ation that includes aliens, the treaty’s supervisory committee nonetheless determined that
“[a] flexible approach to the ground of ‘other status’ is . . . needed in order to capture other
forms of differential treatment that . . . are of a comparable nature to the expressly
recognized grounds . . . These additional grounds are commonly recognized when they
reflect the experience of social groups that are vulnerable and have suffered and continue
to suffer marginalization”: UN Committee on Economic, Social and Cultural Rights,
“General Comment No. 20: Non-discrimination in Economic, Social and Cultural
Rights (Art. 2, para. 2, of the International Covenant on Economic, Social and Cultural
Rights)” (2009), UN Doc. E/C.12/GC/20, July 2, 2009, at [27]. The relevance of the minor
differences in the language of the prohibition of discrimination in the two Human Rights
Covenants is discussed in Chapter 1.5.5, note 400.
547
Civil and Political Covenant, at Art. 2(1).

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 278 3 e n t i t l e m e n t u nd er t h e r ef u g ee c o n v e n t i o n

the cognate Covenant protection can effectively avoid the lower standard of
treatment prescribed by the Refugee Convention.
For example, Art. 15 of the Refugee Convention guarantees freedom of
association to refugees only to the extent of “the most favourable treatment
accorded to nationals of a foreign country, in the same circumstances.” The
failure to grant refugees the same associational rights as citizens would there-
fore not contravene the terms of the Refugee Convention. On the other hand,
because the right to freedom of association is also established by Art. 22 of the
Civil and Political Covenant and by Art. 8 of the Economic, Social and Cultural
Covenant, refugees can invoke Art. 2 of the Covenants as the basis for asserting
the same prima facie entitlement to associational rights as nationals. It would
then fall to the state party denying equal treatment to advance the case that the
distinction between refugees and citizens should be adjudged reasonable.548 In
addition to freedom of association, refugees may rely on parallel provisions in
the Covenants (which are subject to a general duty of non-discrimination) to
assert a right to national treatment in access to employment, housing, and
internal freedom of movement,549 each of which is guaranteed by the Refugee
Convention only at a lower contingency level.550
Second, reliance on the Covenants to assert a duty of non-discrimination
relative to nationals may actually allow refugees to contest a broader range of
substantive disfranchisement. This is because the Covenants guarantee
a significant number of rights not provided for at all in the Refugee
Convention. In particular, the Civil and Political Covenant establishes the
rights to life, to freedom from slavery, against torture, cruel, inhuman, and
degrading treatment, to liberty and security of the person, freedom of thought,
conscience, and religion, to leave the country, to equality before courts and
tribunals,551 against retrospective application of criminal law, to recognition as

548
See Chapter 1.5.5.
549
Only refugees who are “lawfully in the territory of a State Party” may claim the right to
non-discrimination relative to nationals in regard to internal freedom of movement and
choice of place of residence: Civil and Political Covenant, at Art. 12(1).
550
Under the Refugee Convention, the rights to self-employment, professional employment,
housing, and internal freedom of movement are granted to refugees only to the extent
afforded to aliens generally (Arts. 18, 19, 21, and 26). Access to wage-earning employment
is guaranteed to refugees at the most-favored-national level (Art. 17). The comparable
provisions in the Human Rights Covenants make no differentiation between the entitle-
ment of nationals and aliens (Economic, Social and Cultural Covenant, at Arts. 6 and 11;
Civil and Political Covenant, at Art. 12, which does, however, require lawful presence in
the state’s territory).
551
International aliens law also prohibits discrimination by courts against aliens (including
refugees) in the adjudication of claims involving core rights, such as legal status, physical
security, personal and spiritual liberty, and some economic and property rights. While not
enforceable by refugees themselves, this customary norm of international aliens law can
nonetheless be invoked as evidence of a principled, legally defined limitation on discrim-
ination. See generally Chapter 1.1.

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 3.4 p rohibition of discrimination between r efugees 279

a person, to protection of family, children, and privacy, against advocacy of

hatred or discrimination, to freedom of opinion, expression, and assembly, and
to the protection of minority rights.552 Additional rights derived from the
Economic, Social and Cultural Covenant include guarantees of just and favor-
able working conditions, adequate food and clothing, protection of the family
(including of mothers and of children), secondary and higher education, social
security, access to healthcare, and participation in cultural life.553 Each of these
rights must in principle be guaranteed to non-citizens, including refugees,
without discrimination relative to nationals.
Beyond the context-specific duty of non-discrimination derived from Art. 2
of the Covenants, additional value may also be secured from Art. 26 of the Civil
and Political Covenant. As elaborated earlier, Art. 26 establishes a general duty
to guarantee everyone equality before the law and the equal protection of the
law without discrimination.554 As a matter of principle, this overarching duty
should be understood to compel states not only to avoid any intentional
disfranchisement of refugees, but also affirmatively to adopt measures which
provide refugees with the substantive benefit of all public goods.555 In theory,
even the levels of attachment set by the Refugee Convention are themselves
subject to scrutiny under Art. 26 to ensure that the withholding of benefits
from some refugees is justifiable.
The major challenge to the efficacy of the various non-discrimination rights
set by the Human Rights Covenants is that, as previously described, the
contemporary practice of the Human Rights Committee has been to defer to
state perceptions of “reasonableness” in determining whether a given form of
differentiation amounts to discrimination.556 Whether the assessment occurs
under one of the endogenous Art. 2 guarantees or in relation to the more
generally applicable Art. 26, a refugee arguing that inequality of treatment is
discriminatory must make the case that certain kinds of differential allocation
should be understood to be impermissible as a general matter, or at least in
particular circumstances. Given the mixed success in advancing this argument
on behalf of non-citizens generally,557 it is by no means clear that general
norms of non-discrimination law will, in practice, make up for the decision to
exclude discrimination against refugees in general from the scope of Art. 3 of
the Refugee Convention. On the other hand, reliance on the Human Rights
Covenants can at least compel states to justify differential treatment of refugees
as a class, which Art. 3 of the Refugee Convention cannot.
Denied a role in prohibiting discrimination against refugees as a group, the
purpose of Art. 3 of the Refugee Convention as finally adopted is instead to

552
Civil and Political Covenant, at Arts. 6–11, 12(2), 14–21, 23–24, and 27.
553
Economic, Social and Cultural Covenant, at Arts. 7, 9–13, and 15.
554
See Chapter 1.5.5 at note 453. 555 Ibid. at note 459. 556 Ibid. at note 469.
557
Ibid. at note 471 ff.

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 280 3 e n t i t l e m e n t u n d e r th e r e f u g e e co nv en t i o n

disallow any discrimination in the allocation of Convention rights between and

among refugees on the basis of race, religion, or country of origin. While not
requiring that all groups of refugees who arrive in an asylum country be treated
identically, Art. 3 establishes a presumption that differential treatment based
on any of the enumerated grounds is illegitimate. This presumption would
apply, for example, in the case of India’s decision to grant permission to work
to Tibetan refugees, even as Sri Lankan refugees were restricted to self-
employment and Bangladeshi refugees afforded no right to earn a livelihood,558
or its decision to naturalize long-staying refugees, but to deny that consider-
ation to Muslim refugees.559
The text of Art. 3 makes clear, however, that it applies only to matters that
are regulated by the Refugee Convention.560 Those who drafted the provision
emphasized that “[t]he members of the Committee were in full agreement in
their adherence to the principle of non-discrimination, in their desire to reach
an acceptable (preferably a unanimous) solution which should cover the whole
Convention, and in their determination not to ‘legislate’ beyond the Convention
[emphasis added].”561 Their particular concern was to avoid any implication
that states are subject to a duty to administer their immigration laws in a non-
discriminatory way.562 Art. 3 is not therefore a generalized prohibition of
discrimination, but speaks only to invidious differentiation in the implemen-
tation of rights set by the Refugee Convention.563
Despite this fundamental constraint, it must be recognized that implemen-
tation of a Convention right may be implicated even in actions or policies
which are not on their face linked to a right protected by the Convention. For
example, the nature of the refugee status determination procedure is not
specifically regulated by the Refugee Convention, thus suggesting that discrim-
ination in relation to procedural matters would be unlikely to infringe Art. 3.
But where, as in the case of Australia’s decision to suspend the processing of
Afghan and Sri Lankan refugees, there is a consequential breach of a right
protected by the Convention (in this case, subjection to indefinite detention,

558
See text at note 501. 559 See text at note 512.
560
“Article 3 of the 1951 Convention is an article that becomes relevant only if another
provision of the 1951 Convention is affected, as it is an accessory prohibition of discrim-
ination”: R. Marx and W. Staff, “Article 3,” in A. Zimmermann ed., The 1951 Convention
Relating to the Status of Refugees and its 1967 Protocol: A Commentary 643 (2011) (Marx
and Staff, “Article 3”), at 647.
561
“Report of the Committee Appointed to Study Article 3,” UN Doc. A/CONF.2/72, July 11,
1951, at 3.
562
See text at note 530.
563
“The non-discrimination provision in article 3 is limited to the application of ‘the provi-
sions of this convention.’ Article 3 does not contain a freestanding non-discrimination
provision. It resembles the weak provision in article 14 of the European Convention on
Human Rights (1950)”: R v. Immigration Officer at Prague Airport et al., ex parte European
Roma Rights Centre et al., [2004] UKHL 55 (UK HL, Dec. 9, 2004), at [43].

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 3.4 pr o h i bi t i o n o f di s cr i mi n at i o n b etween refu gees 281

contrary to Arts. 31(2) and 26 of the Convention),564 there is nationality-based

discrimination contrary to Art. 3.
Of particular contemporary importance, procedural discrimination can give
rise to a heightened risk of unjustified rejection and removal from the asylum
state, thus indirectly engaging Art. 33’s duty of non-refoulement.565 Whatever
the usual level of safety in a country, the notion that a given country is
inherently safe for all in consequence of which normal procedural rules can
be dispensed with is clearly dubious566 – a fact apparent to the UK Supreme
Court in agreeing with a gay man’s challenge to the designation of Jamaica as
a safe country of origin.567 Because the failure properly to identify and protect
a refugee is the foreseeable consequence of a truncated assessment procedure
of the kind established by European “safe country of origin”568 or Canadian
“designated country of origin”569 regimes, the duty of non-discrimination set
by Art. 3 of the Refugee Convention is infringed.570 Simply put, in such a case

564
See text at notes 502–504; and Chapters 4.2.4 and 5.2. 565 See Chapter 4.1.
566
“Such a list is capable of giving rise to accusations of arbitrariness by comparison with
other countries not on the list”: Detention Action v. Secretary of State for the Home
Department, [2014] EWHC 2245 (Eng. QBD, July 9, 2014), at [89].
567
The Court noted that “there was a serious risk of persecution of gays and other members of
the LGBT community, [a] community . . . estimated to amount to between 5% and 10% of
the population [even though] there is no such risk affecting the remainder of the popula-
tion”: R (Jamar Brown, Jamaica) v. Secretary of State for the Home Department, [2015]
UKSC 8 (UK SC, Nov. 26, 2014), at [1]. The Supreme Court more generally questioned the
viability of arriving at a sound determination of which states of origin could be deemed
safe, observing that “[f]or a serious risk of persecution to exist in general, i.e. as a general
feature of life in the relevant country, it must be possible to identify a recognisable section
of the community to whom it applies, but to require it to be established that the relevant
minority exceeds x% of the population is open to several objections. The first is the absence
of any yardstick for determining what x should be. If the Home Secretary was entitled to
conclude that 10% was insufficient, would the same apply to 15%, 20%, or 25%? It is no
answer to say that it is a question of degree for the judgment of the Home Secretary, within
a wide margin of appreciation, if there is simply no way of deciding it”: ibid. at [22].
568
See text at note 507. 569 See text at notes 508–509.
570
But see HIE and BA v. Refugee Applications Commissioner, Dec. No. C-175/11 (CJEU, Jan.
13, 2013), in which the Court of Justice of the European Union failed to recognize this risk
in a challenge by two refugee claimants to the fast-tracking of their claims pursuant to
Ireland’s designation of Nigeria as a safe country of origin. Noting the “importance of
expediency in processing asylum applications” (ibid. at [60]) and adopting the view that
“nationality of the applicant plays a decisive role” (ibid. at [71]) in refugee status assess-
ment, the Court ruled “that the nationality of the applicant for asylum is an element which
may be taken into consideration to justify the prioritized or accelerated processing of an
asylum application” (ibid. at [73]), though “that prioritized procedure must not deprive
applicants . . . of [regional procedural] guarantees” (ibid. at [74]). This ruling seems to
ignore the fact that even if basic procedural guarantees are respected, all persons of a given
nationality receive a truncated examination of their refugee claim, giving rise to
a differentiated risk of rejection and consequential denial of refugee rights (including to
protection against refoulement) based solely on their nationality.

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 282 3 e n t i t l e m e n t u nd er th e r ef u g e e c o n v e n t i o n

the refoulement would occur because of subjection to a process that stereo-

typed refugees based simply on their country of origin.571 As the Canadian
Federal Court recognized in overturning a provision in the Canadian “desig-
nated country of origin” (DCO) regime that denied appeal rights to applicants
from the listed states,
[t]he distinction drawn between the procedural advantage now accorded
to non-DCO refugee claimants and the disadvantage suffered by DCO
refugee claimants . . . is discriminatory on its face. It also serves to further
marginalize, prejudice, and stereotype refugee claimants from DCO
countries . . . Moreover, it perpetuates a stereotype that refugee claimants
from DCO countries are somehow queue-jumpers or bogus
claimants . . .572
There will, however, be cases in which a Convention right is implicated neither
directly nor indirectly in the discrimination. For example, because the Refugee
Convention does not provide specifically for a right to physical security, South
Africa’s failure to take steps to avoid assaults on sexual minority refugees573 is
immune from scrutiny under the Refugee Convention’s endogenous non-
discrimination rule. Yet because Art. 9(1) of the Civil and Political
Covenant establishes a right to security of person that inheres in all persons
subject to a state’s jurisdiction,574 refugees left unprotected for reasons of
their sexual identity may invoke Art. 2(1) of that treaty to contest the
discrimination.575
Indeed, the Civil and Political Covenant is a critical resource even when
a given interest is explicitly protected under neither the Refugee Convention
nor any cognate human rights treaty. There is, for example, no legal duty to
571
This contrasts with the notion of a “manifestly unfounded” claim, in which assignment to
an accelerated procedure is based not on group stereotype, but rather on the fact that the
individual claim is “clearly fraudulent or not related to the criteria for the granting of
refugee status laid down in the 1951 United Nations Convention relating to the Status of
Refugees nor to any other criteria justifying the granting of asylum”: UNHCR Executive
Committee Conclusion No. 30, “The Problem of Manifestly Unfounded or Abusive
Applications for Refugee Status or Asylum” (1983), at [(d)].
572
YZ v. Canada, [2015] FC 892 (Can. FC, July 23, 2015), at [124]–[125]. UNHCR’s stance is
more tepid, though ultimately acknowledges the same concern (“notions such as ‘safe
country of origin’ . . . should be applied so as not to result in improper denial of access to
asylum procedures, or to violations of the principle of non-refoulement”: Executive
Committee Conclusion No. 87, General Conclusion on International Protection (1999),
at [(j)]). As applied in practice, UNHCR’s position “has been to insist on safeguards, rather
than to condemn these practices outright”: Costello, “Safe Country?,” at 606. For example,
responding to the Canadian plan to establish a “designated country of origin” list,
UNHCR noted that it “does not oppose the introduction of a ‘designated’ or ‘safe country
of origin’ list as long as this is used as a procedural tool to prioritize or accelerate the
examination of applications in carefully circumscribed situations”: UNHCR, “Submission
on Bill C-31, ‘Protecting Canada’s Immigration System Act,’” May 2012, at [31].
573
See text at note 515. 574 See Chapter 4.3.3. 575 See Chapter 1.5.5.

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 3.4 p rohibi tion of discrimi n at ion b et w ee n r ef ug ee s 283

resettle refugees from abroad. As such, policies of Hungary, Slovakia,576 and

the United States577 to bar Muslim refugees from affirmative relocation pro-
grams are beyond the purview of Art. 3 of the Refugee Convention (and indeed
of similar internal non-discrimination guarantees in other human rights treat-
ies). But because the guarantee of equal benefit of the law without discrimin-
ation set by Art. 26 of the Civil and Political Covenant applies even to matters
not regulated by the Covenant, “[i]t prohibits discrimination in law or in fact in
any field regulated and protected by public authorities.”578 As such, to the
extent a state regulates refugee resettlement – which Hungary, Slovakia, and
the United States all do, whether under the auspices of regional or domestic
law579 – they must abide by the duty of non-discrimination in the design and
administration of resettlement programs, meaning they may not lawfully
discriminate against Muslim or other subsets of refugees.
A second concern is that the Refugee Convention’s duty of non-
discrimination is textually limited to the three listed grounds of race, religion,
and country of origin. While true, the protection against discrimination on
grounds of “country of origin” is of particular value, given the prevalence of
discrimination against refugees based upon their citizenship. There can be little
doubt, for example, that this ground is sufficient to contest the nationality-
based refusal of Yemen to recognize the refugee status of other than Somalis,580
or to challenge China’s refusal to protect refugees from North Korea.581
A purposive reading of prohibition of discrimination on grounds of “country
of origin” would moreover extend also to practices and policies aimed at
refugees from a given group or category of states. Thus, Israel’s stigmatization
of sub-Saharan African refugees as illegal “infiltrators,”582 or Sudan’s refusal to
provide Arab refugees with the protected status accorded refugees from
immediately adjacent states,583 is also inconsistent with the Convention’s
duty of non-discrimination. Equally clearly, European Union states may not
lawfully treat a refugee claim as “manifestly unfounded” simply because it is
made by the national of another EU country584 – knowing, as Costello
observes, that “although the consequences of designation are mainly proced-
ural, they seem to be fatal in practice.”585 Because the presumption of safety
576
See text at note 510. 577 See text at note 511.
578
UN Human Rights Committee, “General Comment No. 18: Non-discrimination” (1989),
UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [12]. See generally Chapter 1.5.5.
579
See text at notes 510–511. 580 See text at note 500. 581 See text at note 498.
582
See text at note 499. 583 See text at note 505. 584 See text at note 506.
585
Costello, “Safe Country?,” at 609. Indeed, an analysis prepared by the Canadian
Immigration and Refugee Board shows that although EU law authorizes an exemption
from the “manifestly unfounded” designation in four limited circumstances, in practice
the narrowness of the authorized exemptions results in the rejection of “virtually all”
claims by EU citizens as manifestly unfounded: Immigration and Refugee Board of
Canada, “European Union: Application of the Protocol on Asylum for Nationals of
Member States of the European Union (2013 – June 2015),” July 9, 2015, at 2–3. In

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 284 3 e n t i t l emen t un der the refu gee c onvention

that underlies the EU’s “Aznar Protocol” is factually unsound,586 the de facto
denial of access to the refugee system to nationals of EU countries amounts to
a breach of Art. 3’s duty not to discriminate on the basis of country of origin.587
It remains, however, that Art. 3’s restriction to only three grounds is oddly
conceived. It does not, for example, replicate the United Nations Charter’s
prohibition of discrimination on the grounds of race, sex, language, or
religion.588 Even though the drafters expressed a desire to conform to the
Universal Declaration of Human Rights,589 they refused to sanction an open-
ended duty of non-discrimination of the kind contained in the Universal
Declaration.590 Nor does it include the Universal Declaration’s explicit

2014, for example, Belgium – which has formally resiled from the EU approach, correctly
insisting that it would examine all claims on their individual merits in order to meet its
Refugee Convention obligations – issued all ten of the positive refugee status decisions by
EU states in relation to EU nationals: ibid. at 3. The Belgian refusal to adopt the EU
approach is legally sound, since “[a]s a matter of law, Member States remain free to fulfill
their international legal obligations towards refugees and asylum-seekers, including that
enshrined in Article 3 of the Refugee Convention not to discriminate on the grounds of
nationality”: M.-T. Gil-Bazo, “The Charter of Fundamental Rights of the European Union
and the Right to be Granted Asylum in the Union’s Law,” (2008) 27(3) Refugee Survey
Quarterly 33, at 43. Indeed, international law arguably requires such action.
586
As Stern’s analysis shows, EU citizens, in particular those of Roma ethnicity, do in fact seek
and secure refugee status recognition in other countries; and EU guarantees of freedom of
movement are not sufficient to enable at-risk EU citizens simply to enter another EU
country without need of accessing the asylum system: Stern, “At a Crossroad?,” at 66–73.
See also E. Guild and K. Zwaan, “Does Europe Still Create Refugees? Examining the
Situation of the Roma,” (2014) 40(1) Queen’s Law Journal 141.
587
As Stern succinctly concludes, “discrimination on the basis of nationality becomes the
rule,” rather than the exception: Stern, “At a Crossroad?,” at 62.
588
Charter of the United Nations, 1 UNTS 16, adopted June 26, 1945, at Art. 1(3). In
a dissenting opinion in the Full Federal Court of Australia, the view was taken that
where differential treatment of certain refugees resulted largely from their inability to
communicate in English, this was – if examined on the basis of effects – discrimination on
grounds of national origin. “[T]o say that any differential impact is suffered not because of
national origin, but rather as a result of individual personal circumstances, appears to me
to adopt a verbal formula which avoids the real and practical discrimination which flows
as a result of the operation of the [twenty-eight-day limit to seek review]”: Sahak
v. Minister for Immigration and Multicultural Affairs, [2002] FCAFC 215 (Aus. FFC,
July 18, 2002), per North J. The majority of the Court, however, was of the view that
“such discrimination or disadvantage as arose from the practical operation of . . . the
Act . . . does not deprive persons of one race of a right that is enjoyed by another race, nor
does it provide for differential operation depending upon the race, color, or national or
ethnic origin of the relevant applicant. For example, persons whose national origin is
Afghani or Syrian are able to take advantage of the relevant right if their comprehension of
the English language is sufficient, or if they have access to friends or professional
interpreters so as to overcome the language barrier”: ibid.
589
Statement of Mr. Cuvelier of Belgium, UN Doc. E/AC.32/SR.24, Feb. 3, 1950, at 11.
590
The Yugoslavian delegate, Mr. Makiedo, unsuccessfully proposed that the list be made
open-ended by the addition of the words “or for other reasons”: UN Doc. A/CONF.2/SR.4,
July 3, 1951, at 13.

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 3.4 p rohibi tion of discrimi n at ion b et w ee n r ef ug ee s 285

references to color, sex, language, political or other opinion, social origin,

property, or birth as prohibited bases of discrimination.591 While some of
the drafters defended the scope of Art. 3 on the basis of its symmetry with the
usual grounds on which refugees were persecuted, the failure to make reference
to political opinion as a prohibited ground of discrimination was acknow-
ledged to be at odds with this understanding of the purpose of Art. 3.592
A particularly disturbing discussion occurred in response to a proposal that
sex be included as a prohibited ground of discrimination.593 Some states took
umbrage at the mere suggestion that any government might be guilty of sex
discrimination,594 while others clearly acknowledged that sex discrimination
was common, but ought not to be challenged.595 One state actually defended its
opposition to including sex as a prohibited basis of discrimination by arguing
that to prohibit discrimination on the basis of sex might interfere with cigarette
distribution quotas.596 The lack of serious and principled intellectual
591
Universal Declaration of Human Rights, UNGA Res. 217A(III), Dec. 10, 1948, at Art. 2.
592
“Political opinion,” together with race and religion, was acknowledged to be one of the
three traditional grounds that led persons to seek protection as refugees: Statement of
Mr. Cuvelier of Belgium, UN Doc. E/AC.32/SR.24, Feb. 3, 1950, at 11. Yet it was omitted in
the statement of the President of the Conference of Plenipotentiaries that “the original
idea underlying Article 3 [was] that persons who had been persecuted on account of their
race or religion, for example, should not be exposed to the same danger in their country of
asylum”: UN Doc. A/CONF.2/SR.5, July 4, 1951, at 10. The Yugoslavian delegate later
sought (unsuccessfully) to justify an open-ended list of prohibited grounds of discrimin-
ation on the basis that “[t]he President had suggested that the text was satisfactory because
it in fact enumerated all the reasons for which refugees were generally persecuted. There
were, however, others, such as the holding of certain political opinions”: Statement of
Mr. Makiedo of Yugoslavia, ibid. at 12.
593
The omission of sex from the Convention’s prohibition of discrimination was noted by
Baroness Hale in Fornah v. Secretary of State for the Home Department, [2006] UKHL 46
(UK HL, Oct. 18, 2006), at [84].
594
“He would . . . oppose the insertion of the words ‘and sex’ which would imply that certain
countries at present practised discrimination on grounds of sex. Such was not the case”:
Statement of Mr. Rochefort of France, UN Doc. A/CONF.2/SR.5, July 4, 1951, at 9. It is
interesting to consider whether this position should be taken as an acknowledgment that
reception countries were engaged in discrimination on the enumerated grounds of race,
religion, and country of origin.
595
“If that were done . . . States whose legislation provided for different hours of work for men
and women, for instance, might be hesitant to accede to the Convention”: Statement of
Mr. Warren of the United States, ibid. at 10. “The President added that . . . married women
might be prevented by national legislation from establishing their own domiciles. The
inclusion of a reference to sex in Article 3 might therefore present legislative difficulties for
the State in question”: Statement of the President, ibid.
596
“[T]he inclusion of a reference to sex might well conflict with national legislation, and he
was therefore opposed to it as well. To quote one example, during a tobacco shortage in
Austria the ration for women had been smaller than that for men. It had been alleged in
the constitutional courts that that was a violation of the equality of the sexes, but the
finding of the courts had been that women needed less tobacco than men. Thus, to include
the reference to sex might bring the Convention into conflict with national legislation,

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 286 3 e n t i t l emen t un der the refu gee c onvention

engagement in this discussion confirms the essentially arbitrary approach to

the decision on which substantive grounds to include in Art. 3. The final 17–1
(5 abstentions) vote in opposition to any expansion of the scope of Art. 3 makes
clear, however, that there is no basis upon which to argue that the Refugee
Convention was intended to grant refugees the benefit of a comprehensive
duty of non-discrimination.597 The women refugees denied equal access to
health facilities, food, and educational opportunities by Nepal598 or the male
refugees denied work and other benefits that would ordinarily accrue by virtue
of marriage to a Jordanian citizen599 would thus appear to be beyond the
protective reach of Art. 3.
This is, however, no longer the case for the overwhelming majority of
refugees located in states that are also parties to the Civil and Political
Covenant. In those countries, the interaction between the Refugee
Convention and the guarantee of equal benefit of the law without discrimin-
ation set by Art. 26 of the Civil and Political Covenant now effectively remedies
the limited reach of Art. 3’s text. Art. 3 of the Refugee Convention clearly
establishes that there was an explicit intention to insulate refugee rights from
discrimination (albeit then on the basis of only the three enumerated grounds).
Art. 26 of the Civil and Political Covenant, in turn, today requires that any
rights (including to non-discrimination) allocated to one group be presump-
tively extended to all.600 Taken together, the protections of Art. 3 of the
Refugee Convention must now be read to apply generally, that is without
discrimination based upon any of the grounds set by Art. 26, namely race,
color, sex, language, religion, political or other opinion, national or social
origin, property, birth or other status.601
Given this legal evolution, an especially interesting question is whether
discrimination based upon a refugee’s mode of arrival in the asylum country
is caught by the prohibition of discrimination based on “other status.” This
concern now arises, for example, in the context of Australia’s indefinite
detention of “irregular arrivals,”602 New Zealand’s special regime for the long-
term detention of “mass arrivals,”603 and Canada’s “designated foreign

because a woman refugee might not obtain as many cigarettes as a male refugee”:
Statement of Mr. Fritzer of Austria, ibid. at 11. The trivialization of the importance of
sex discrimination – not to mention the fact that cigarette distribution is clearly not within
the substantive ambit of the Refugee Convention – attest to a shockingly weak grasp of the
issues at hand.
597
Ibid. at 12. Interestingly, the observer from the Confederation of Free Trade Unions
resurrected the issue of amending Art. 3 to embrace sex discrimination during the final
reading of the Convention. There is no reported discussion of her proposal, the present
text of Art. 3 being adopted without amendment by a vote of 21–0 (1 abstention): UN Doc.
A/CONF.2/SR.33, July 24, 1951, at 7.
598
See text at note 513. 599 See text at note 514. 600 See Chapter 1.5.5 at note 453.
601
Civil and Political Covenant, at Art. 26. 602 See text at note 516.
603
See text at note 519.

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 3.4 p r o h i b i t i o n o f d i s c r i m i n a t i o n b e t w e en r e f u g e es 287

national” regime which imposes detention and other rights deprivations on

refugees who are “irregular” arrivals (for example, because a smuggler facili-
tated their entry without documentation).604
The Human Rights Committee has provided little systematic guidance on
the meaning of the residual category of “other status.”605 Its general approach
has been to insist on the “all encompassing character of the terms of this
article,”606 equating “other status” simply with an “identifiably distinct
category,”607 and finding, for example, that it would “not exclude that ‘resi-
dence’ may be a status that prohibits discrimination.”608 This approach aligns
neatly with the general goal of non-discrimination law to ensure that “individ-
uals should be judged according to their personal qualities . . . [which] tenet is
contravened if the treatment is based on their status [emphasis added].”609
Following this approach, there is no reason to see a group defined by mode
of arrival as other than members of an “identifiably distinct category” and
hence as protected from discrimination on the basis of “other status.”
Whatever deference to immigration-based categories might otherwise be
thought fair,610 there is no warrant to depart from the ordinary meaning of
“other status” in order to insulate from scrutiny a category defined in contra-
vention of Art. 31 of the Refugee Convention’s express prohibition of the
“impos[ition of] penalties, on account of their illegal entry or presence, on
refugees.”611 Indeed, regimes such as those adopted by Australia612 and

604
See text at notes 517–518.
605
S. Joseph and M. Castan, The International Covenant on Civil and Political Rights: Cases,
Materials, and Commentary (2013), at [23.27]. The authors list various statuses found to
qualify as “other status”: ibid. at [23.29]. See also J. Pobjoy, “Treating Like Alike: The
Principle of Non-Discrimination as a Tool to Mandate the Equal Treatment of Refugees
and Beneficiaries of Complementary Protection,” (2010) 34 Melbourne University Law
Review 181, at 206.
606
Vuolanne v. Finland, HRC Comm. No. 265/1987, decided Apr. 7, 1989, at [9.6].
607
B d. B v. Netherlands, HRC Comm. No. 273/1989, decided Mar. 30, 1989, at [6.7].
608
Pohl v. Austria, HRC Comm. No. 1160/2003, decided July 9, 2004, at [9.4].
609
Fredman, Discrimination, at 109. See generally Chapter 1.5.5.
610
In one case, the Human Rights Committee has suggested that it would apply its “objective
and reasonable” framework (see Chapter 1.5.5) to the definition of which forms of identity
attract the duty of non-discrimination: Gueye v. France, HRC Comm. No. 196/1985,
decided Apr. 3, 1989, at [9.4] (“A differentiation based on reasonable and objective criteria
does not amount to prohibited discrimination within the meaning of article 26”).
611
See Chapter 4.2. The Refugee Convention is appropriately considered in the application of
the Civil and Political Covenant to refugees as part of the legal “context” of the Covenant:
see Chapter 2.2 at note 88.
612
See text at note 516. It has been argued by some that Australia’s policy is essentially driven by
considerations of race. “Boat people are predominantly South-East Asian asylum-seekers
who come to Australia by sea without authority . . . They are all unlawful non-citizens . . .
Although Australia had a detention policy, it had been used only for specific cases and only
for individuals until the arrival of the boat people. It was activated to incarcerate this
particular group. This discriminatory response arose out of the fear of Australia’s ‘significant

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 288 3 e ntitlement under the refugee c onvention

Canada613 that stigmatize a subset of refugees for doing only what inter-
national law expressly allows them to do – arriving without pre-
authorization to seek protection – ought not only to be scrutinized as discrim-
ination based on “other status,” but should not survive scrutiny as reasonable
policies given their flaunting of international legal duties. The New Zealand
system – imposing differential treatment only on “mass arrivals”614 – also
treats some refugees differently based simply upon their mode of arrival, and
therefore also raises an issue of differentiation based on “other status.” In
contrast to the unlawful stigmatization of “irregular arrivals” by Australia
and Canada, however, the New Zealand policy may well be adjudged “reason-
able” and thus non-discriminatory. Both the drafting history of the Refugee
Convention and relevant UNHCR Executive Committee standards provide
support for granting states some flexibility to engage in categorical differenti-
ation in the context of a true “mass influx,”615 though of course the extent of
the differentiation based on that category would itself still need to be shown to
be objective and reasonable.616
Just as Art. 31 of the Refugee Convention sensibly informs an understand-
ing of impermissible differentiation based on “other status,” so too Art. 3 of the
Refugee Convention is helpful as an interpretive aid to Art. 26 of the Civil and
Political Covenant, assisting in tackling the central question in non-
discrimination analysis of whether a differential allocation of refugee rights
may be found to be “reasonable.” In answering this question, reliance should
be placed on the fact that Art. 3 of the Refugee Convention defines a series of
entitlements that are presumptively to follow from refugee status. These
include not only rights that mirror those found in the Covenants and elsewhere
(e.g. freedom of movement, right to work), but also other rights uniquely
relevant to the situation of refugees (e.g. non-penalization for illegal entry,

other’: Asia”: D. McMaster, Asylum Seekers: Australia’s Response to Refugees (2001), at 2–3.
Alternatively, Fonteyne suggests that the underlying basis for discrimination might be the
region (or countries) of origin. “[T]he policy in effect violate[d] the non-discrimination
standard mandated by Article 3 of the Refugee Convention (as only boat people, and not on-
shore applicants are routinely detained, and boat people in reality predominantly come from
particular geographic regions)”: J.-P. Fonteyne, “Illegal Refugees or Illegal Policy?,” in
Australian National University Department of International Relations ed., Refugees and
the Myth of the Borderless World 16 (2002), at 16. The issue of whether discrimination
against “boat people” was a violation of the duty of non-discrimination on the basis of “other
status” was not adjudicated by the Human Rights Committee in A v. Australia, HRC Comm.
No. 560/1993, UN Doc. CCPR/C/59/D/560/1993, decided April 30, 1997. Australia’s deten-
tion of the “boat people” was, however, found to violate Arts. 9(1), 9(4), and 2(3) of the Civil
and Political Covenant.
613
See text at notes 517–518. 614 See text at note 519.
615
See Chapter 4.1.5. UNHCR Executive Committee Conclusions on International
Protection are properly understood to be interstate agreements that form part of the
context for interpretive purposes: see Chapter 2.2. at note 80 ff.
616
See Chapter 1.5.5 at note 468.

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 3.4 p r o hib i t i o n o f d i s c r i m i n a t i o n b e t w e e n r e f u g e e s 289

non-refoulement, and access to identity documents). A state party seeking to

justify differential protection of some part of the refugee population on any
status-based ground therefore faces a particular hurdle when the subject matter
of the differentiation is a right expressly guaranteed in the Refugee Convention
itself: because these are rights that are explicitly intended to inhere in persons
who are refugees simply because they are refugees, the government withholding
these rights should be expected to overcome that presumption in seeking to
demonstrate the reasonableness of its failure to treat all refugees equally.
Despite both its direct and indirect value to contesting discrimination
against subsets of the refugee population, the efficacy of Art. 3 is nonetheless
sometimes questioned on the grounds that it appears to be overridden by Art. 5
of the Refugee Convention, which provides that “[n]othing in this Convention
shall be deemed to impair any rights and benefits granted by a Contracting
State to refugees apart from this Convention.”617 Because “nothing” in the
Convention impairs Art. 5, it is arguable that the article entitles states to grant
superior rights to preferred categories of refugees, so long as no class receives
treatment below the minimum standard of treatment required by the
Convention.618 Particularly because Art. 5 was originally incorporated in the
Convention immediately after the duty of non-discrimination,619 it may there-
fore be read to authorize governments to depart from the principle of Art. 3 if
a subset of the refugee population is thereby benefitted.620
Importantly, though, there is nothing in Art. 5 that requires a reading that
abrogates Art. 3’s duty of non-discrimination. Moreover, construing Art. 5 in
a way that would allow discrimination might reasonably be contested by
reliance on the duty to interpret a treaty in a manner that avoids internal
conflict.621 On the other hand, no conflict arises if Art. 5 is understood simply
as an invitation to governments to agree to higher standards than those
mandated by the Refugee Convention,622 not as countenancing the granting
of privileges to only a select subset of refugees. The latter result is in any event

617
See generally Chapter 1.4.5.
618
See e.g. S. Blay and M. Tsamenyi, “Reservations and Declarations under the 1951
Convention and the 1967 Protocol relating to the Status of Refugees,” (1990) 2(4)
International Journal of Refugee Law 527 (Blay and Tsamenyi, “Reservations”), at 556–557.
619
UN Doc. E/AC.32/SR.43, Sept. 28, 1950, at 14.
620
See Weis, Travaux, at 44; Robinson, History, at 76; Marx and Staff, “Article 3,” at 648.
621
“The terms of a treaty norm must, first of all, be interpreted ‘in their context’ (Art. 31(1) of
the Vienna Convention). This context includes, particularly, all the other terms of the
treaty in which the norm is set out . . .. Only if one of . . . two norms explicitly goes against
the other norm is the presumption against conflict rebutted”: J. Pauwelyn, Conflict of
Norms in Public International Law (2003), at 247. See also Chapter 2.2 at note 57.
622
There was clearly interest in encouraging states to grant protections that exceed those
stipulated by the Refugee Convention. See e.g. the exchange between Mr. Warren of the
United States and Mr. Herment of Belgium: UN Doc. A/CONF.2/SR.5, July 4, 1951, at 8.
See generally Chapter 1.4.5.

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 290 3 e n t i t l e m e n t u n d e r th e r e f u g e e co nv en t i o n

now compelled by Art. 26 of the Civil and Political Covenant, which as

previously noted requires equal protection of the law without discrimination
“in any field regulated and protected by public authorities.”623 Thus, for
example, if access to the labor market on terms of parity with nationals is
granted immediately to any subset of the refugee population, it must be
extended to all absent a showing of differing capabilities and potentialities
sufficient to justify the preferred treatment of only a subset of the refugee
population.
So, what is the present day net value of Art. 3 of the Refugee Convention?
There is no doubt that the Covenants today are now the most critical source
of relevant protection,624 setting a critical guarantee of non-discrimination in
relation to rights not guaranteed under the Refugee Convention, as well as
significantly expanding the list of grounds on which discrimination is not
allowed. Art. 26 of the Civil and Political Covenant is of particular importance,
setting a broad-ranging duty of equal protection of the law in relation to any
matter regulated by a state – including, therefore, a state’s refugee protection
system.
Yet the Refugee Convention remains relevant. Most importantly, Art. 3 of
the Refugee Convention plays a complementary role to the Covenants by
defining a core sphere of interests in regard to which the allocation of differ-
ential rights to refugees or subsets of the refugee population should be pre-
sumed not to be justifiable – making it clear, for example, that refugee-specific
concerns such as immunity from penalization for unlawful entry or presence,
the issuance of identity and travel documents, protection from expulsion or
refoulement, and access to naturalization must be implemented without dis-
crimination. Indeed, even where cognate rights are protected under both
general human rights law and the Refugee Convention, the often greater
specificity of Convention rights allows Art. 3 to expand or clarify the scope
of a protected interest – for example, that non-discriminatory access to the
general right to food includes non-discriminatory access to rationing
systems,625 and that non-discriminatory access to the courts includes non-
discriminatory access to legal assistance.626
In addition to Art. 3, the Refugee Convention as a whole is of value in
applying generic non-discrimination norms to refugees. As shown above,627
for example, the Refugee Convention helps in the refugee-specific analysis of
the scope of protected categories – for example, looking to Art. 31 of the

623
UN Human Rights Committee, “General Comment No. 18: Non-discrimination” (1989),
UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [12]. See Chapter 1.5.5 at note 455.
624
There is much force in the view that “Article 3 of the Geneva Convention has . . . largely –
if not totally – been neutralized by Article 26 of the Covenant” (Chetail, “Are Refugee
Rights Human Rights?,” at 49), though as described below the Refugee Convention plays
a critical complementary role to the general non-discrimination norms.
625
See Chapter 4.4.1. 626 See Chapters 4.10 and 5.5. 627 See text at note 610 ff.

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 3.5 r e s t r i c t i o n s on re f u g e e r i g ht s 291

Convention to conclude that the prohibition of discrimination based on “other

status” should include discrimination based on a refugee’s mode of arrival. The
Convention’s levels of attachment628 can also be of real value in understanding
what forms of differentiation should be understood to be “reasonable” and
hence non-discriminatory – meaning, for example, that any attempt to treat
refugee children less well than citizens in terms of access to basic education629
or rules on the employment of some or all refugees that fall short of most-
favored-national standards630 should, because they fall below the Refugee
Convention’s minimum standard of treatment, be understood to fall short of
what is reasonable and thus be deemed presumptively discriminatory.
In each of these ways, Art. 3 and companion provisions of the Refugee
Convention serve as an important contextual check on the possibility of
interpretations that might undermine the value to refugees of the general
duty of non-discrimination.

3.5 Restrictions on Refugee Rights

A state that makes no reservation to the terms of the Convention, and which does
not avail itself of the formal option to limit its obligations temporally631 or
geographically,632 may validly restrict refugee rights under only very narrow
circumstances. The Refugee Convention – in contrast, for example, to the Civil
and Political Covenant – does not grant governments a general right to suspend or
withhold Convention rights, even in emergency situations. Apart from a small
number of Convention rights specifically subject to limitations for reasons of
security or criminality,633 the only lawful restrictions on refugee rights are those

628
See Chapter 3.1. 629 See Chapter 4.8. 630 See Chapter 6.1.
631
This can be achieved by acceding to the Refugee Convention, without also acceding to the
Refugee Protocol. See Chapter 1.4.3 at note 88.
632
A state may restrict its obligations to persons who became refugees as the result of events
occurring in Europe by acceding to the Refugee Convention, but not to the Refugee
Protocol, and making a declaration at the time of signature, ratification, or accession
specifying that it is governed by the interpretation of the refugee definition set out in Art.
1(B)(1)(a) of the Refugee Convention. Those states which became parties to the Refugee
Convention and which elected to adopt the interpretation set out in Art. 1(B)(1)(a) prior
to 1967 may also validly retain that geographical limitation, even while broadening the
temporal scope of their obligations by accession to the Refugee Protocol. Other govern-
ments that opt to bind themselves to refugees without temporal limitation by accession
to the Refugee Protocol must, however, also accept obligations without geographical
limitation. See Chapter 1.4.3 at notes 89–90.
633
These include Art. 33 (non-refoulement: “may not, however, be claimed . . . [if] danger to
the security of the country . . . or who, having been convicted by a final judgment of
a particularly serious crime, constitutes a danger to the community of that country”); Art.
32 (freedom from expulsion: “save on grounds of national security or public order”); and
Art. 28 (travel documents: “unless compelling reasons of national security or public order
otherwise require”). See generally Chapters 4.1.4, 5.1, and 6.6.

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 292 3 e ntitlement un der the refugee c onvention

taken in accordance with Art. 9 of the Convention, providing for the provisional
suspension of refugee rights on national security grounds during a war or other
grave emergency – and even these measures must come to an end once refugee
status is verified. Nor may refugees be subject to peacetime measures of retaliation
or retorsion imposed on the grounds of their formal nationality.

3.5.1 Suspension of Rights for Reasons of National Security

Refugee Convention, Art. 9 Provisional Measures
Nothing in this Convention shall prevent a Contracting State, in
time of war or other grave and exceptional circumstances, from
taking provisionally measures which it considers to be essential to
the national security in the case of a particular person, pending
a determination by the Contracting State that that person is in fact
a refugee and that the continuance of such measures is necessary in
his case in the interests of national security.
The drafters of the Convention considered, but did not adopt, an all-embracing
power of derogation in time of national crisis.634 The British proponent of the
derogation clause wanted governments to be in a position to withhold rights
from refugees if faced with a mass influx during wartime or other crisis.
Because it would be impossible immediately to verify whether each person
should be excluded from refugee status on security grounds,635 he argued that
governments required some breathing space in order to avoid granting rights
to persons who might be found to represent a danger to the host state.636
His concern was valid, since a significant number of rights accrue to
refugees even before their status has been formally determined.637 Yet, as the

634
“A contracting State may at a time of national crisis derogate from any particular provision
of this Convention to such extent only as is necessary in the interests of national security”:
Proposal of the United Kingdom, UN Doc. E/AC/32/L.41, Aug. 15, 1950.
635
Refugee Convention, at Art. 1(F). The exclusion clauses which form an integral part of the
definition of refugee status also provide critical safeguards for governments. On this topic,
see generally Grahl-Madsen, Status of Refugees I, at 262–304; and Hathaway and Foster,
Refugee Status, at 524–598.
636
“He recalled the critical days of May and June 1940, when the United Kingdom had found itself
in a most hazardous position; any of the refugees within its borders might have been fifth
columnists, masquerading as refugees, and it could not afford to take chances with them. It was
not impossible that such a situation could be reproduced in the future”: Statement of Sir Leslie
Brass of the United Kingdom, UN Doc. E/AC.32/SR.21, Feb. 2, 1950, at 8. See also the
comments of Mr. Theodoli of Italy, UN Doc. E/AC.32/SR.34, Aug. 14, 1950, at 20: “[T]he
main concern was to know whether at a time of crisis the Contracting States could resort to
exceptional measures. He referred to the situation of Italy at the outset of the war when
thousands of refugees had flocked to the frontiers of Italy.”
637
See generally Chapters 3.1.1, 3.1.2, and 3.1.3. The assurance of the representative of the
United States that “the doubts of the United Kingdom representative might be resolved by

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 3.5 restricti ons on r efugee rights 293

American delegate insisted, it was equally important that any exception to the
duties owed refugees be limited to “very special cases.”638 The focus of atten-
tion therefore became how to ensure that states faced with a critical emergency
could protect vital national security interests during the time required to
investigate particular claims to refugee status.639 The resultant Art. 9 is care-
fully circumscribed,640 reflecting the desire to strike a balance between the
legitimate concerns of war-torn states and those of the refugees who fled to
them.641 As the sole general provision on derogation in the Convention,
a government must either meet the requirements of Art. 9 or “the whole
Refugee Convention remains plainly applicable even in times of armed
conflict.”642

the fact that any Government would be free to hold that any individual was not a bona fide
refugee, in which case none of the provisions of the convention would apply to him” failed
to recognize this critical point: Statement of Mr. Henkin of the United States, UN Doc. E/
AC.32/SR.21, Feb. 2, 1950, at 8. See also UN Doc. E/AC.32/SR.34, Aug. 14, 1950, at 19.
638
Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.34, Aug. 14, 1950, at
21. In particular, Mr. Henkin agreed that the Convention “ought not to prevent
Governments in time of war from screening refugees to weed out those who were posing
as such for subversive purposes.” His concern was simply that “any limitation . . . ought to
be defined more precisely than had been proposed, rather than leaving it open to countries
to make far-reaching reservations. He would like the limitation to be as narrow as was
possible”: Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.35, Aug.
15, 1950, at 6.
639
“The President recalled that . . . there had been no doubt that dangerous persons, such as
spies, had to be dealt with under national laws. The question had then been raised as to the
action to be taken in respect of refugees on the declaration of a state of war between two
countries, which would make it impossible for a particular State to make an immediate
distinction between enemy nationals, in the country, supporting the enemy government,
and those persons who had fled from the territory of that enemy country. The Ad Hoc
Committee had come to the conclusion that, while a government should not be in
a position to treat persons in the latter category as enemies, it would need time to screen
them”: Statement of the President, Mr. Larsen, UN Doc. A/CONF.2/SR.6, July 4, 1951,
at 15.
640
Art. 9 is thus not in any sense the “carte blanche” suggested by Davy: U. Davy, “Article 9,”
in A. Zimmermann ed., The 1951 Convention Relating to the Status of Refugees and its 1967
Protocol: A Commentary 781 (2011) (Davy, “Article 9”), at 784.
641
Art. 9 contrasts, for example, with the cognate provision in the Civil and Political
Covenant, which allows for the ongoing suspension of rights in the context of the broader
category of a “public emergency which threatens the life of the nation and the existence of
which is officially proclaimed”: Civil and Political Covenant, at Art. 4(1). As separate
treaties, the Refugee Convention and other applicable human rights treaties must be
independently implemented in good faith. It is therefore not the case that “[t]he limita-
tions deriving from human rights law also delineate the State powers under Art. 9 of the
1951 Convention if and when the measures interfere with relevant human rights” in
consequence of which “provisional measures under Art. 9 have, over time, become
outdated by human rights law”: Davy, “Article 9,” at 791, 803.
642
V. Chetail, “Armed Conflict and Forced Migration: A Systematic Approach to
International Humanitarian Law, Refugee Law, and International Human Rights Law,”

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In line with its limited objective, Art. 9 does not authorize generalized
derogation on an ongoing basis,643 but only as a provisional measure “pending
a determination by the Contracting State that that person is in fact
a refugee.”644 A state that wishes to avail itself of the provisional measures
authority must therefore proceed to verify the claims to refugee status of all

in A. Clapham and P. Gaeta eds., The Oxford Handbook of International Law in Armed
Conflict 700 (2014), at 713. See also D. Cantor, “Laws of Unintended Consequence:
Nationality, Allegiance and the Removal of Refugees during Wartime,” in D. Cantor
and J. Durieux eds., Refuge from Inhumanity: War Refugees and International
Humanitarian Law 345 (2014) (Cantor, “Unintended Consequence”), at 366 (“[W]e
should be clear that the existence of a set of circumstances triggering the threshold
provisions of [international humanitarian law] does not serve to displace en masse the
legal effect of international refugee law . . . [T]he fact that the Refugee Convention already
takes into account the factor of military necessity in times of war shows clearly that it is
not, as a body of law, subject to derogation but rather continues to apply during armed
conflict”). Edwards in contrast makes a far-reaching claim that there is an implied right of
derogation borne of state practice ( A. Edwards, “Temporary Protection, Derogation and
the 1951 Refugee Convention,” (2012) 13(2) Melbourne Journal of International Law 595
(Edwards, “Temporary Protection”), at 624), a case based on the dubious assumption that
state practice under the Convention amounting to subsequent agreement can establish,
rather than simply interpret, law: see Chapter 2.4. Conversely, Durieux and McAdam
argue for a treaty-based right to derogate from refugee obligations that takes no account of
the role of Art. 9: J.-F. Durieux and J. McAdam, “Non-refoulement through Time: The
Case for a Derogation Clause to the Refugee Convention in Mass Influx Emergencies,”
(2004) 16(1) International Journal of Refugee Law 4.
643
Nor may states rely on their domestic laws to deny refugee rights based on security
concerns on an ongoing (rather than provisional) basis. As the Court of Justice of the
European Union observed in response to the withholding of a residence permit from
a refugee believed to support the Turkish PKK, “[a]s those rights conferred on refugees
result from the granting of refugee status and not from the issue of the residence permit,
the refugee, as long as he holds that status, must benefit from [refugee] rights”: HT v. Land
Baden-Württemberg, Dec. No. C-373/13 (CJEU, June 24, 2015), at [97]. See also M v.
Czech Republic, X and X v. Belgium, Dec. Nos. C-391/16, C-77/17, and C-78/17 (CJEU,
May 14, 2019), at [108], finding that “there is no way of interpreting [EU law] as having the
effect of encouraging . . . States to shirk their international obligations as resulting from
the Geneva Convention by restricting the rights that those persons derive from that
convention.”
644
Convention, at Art. 9. Despite the clear language of this provision, it has been suggested
that a “determination . . . that that person is in fact a refugee” does not mean what it says;
rather, “[t]he ultimate aim of the determination under Art. 9 is not to clarify refugee status
according to the criteria in Art. 1, but to find out whether the individuals concerned –
bound via their nationality to a country engaged in severe hostilities against their host
country – are (still) loyal to their country of nationality and, hence, a security risk for their
host country”: Davy, “Article 9,” at 800. This approach is not only contrary to the plain
language and drafting history of the article, but would allow a state effectively to suspend
its obligations in perpetuity. Yet even the Australian representative – who argued perhaps
most strenuously for a wide-ranging power of derogation – made clear “that it was never
his delegation’s intention to open the way to an indefinite extension of the circumstances
in which states could take exceptional measures”: Statement of Mr. Shaw of Australia, UN
Doc. A/CONF.2/SR.6, July 4, 1951, at 14.

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 3.5 restricti ons on r efugee rights 295

persons whose rights are thereby suspended.645 If a particular person is found

not to be a Convention refugee, including on the basis of criminal or other
exclusion under Art. 1(F), no rights under the Refugee Convention accrue, and
removal from the territory or the imposition of other restrictions is allowed.646
If, on the other hand, an individual is found to satisfy the Convention refugee
definition,647 Art. 9 establishes a presumption that the provisional measures
shall come to an end.648
The duty to terminate provisional measures upon refugee status recognition
does not mean, however, that the government of the asylum country is
prevented from protecting itself against risks to its national security. It must,
however, ground its actions in the authority of a particular article of the
Convention, rather than relying on the generic authority of Art. 9.649 The
drafters moreover made provision for the possibility that in some cases security
concerns might not be fully investigated even by the time of status recognition,
an understandable possibility in the context of war or other exceptional
circumstances. Concerned that if the authorities of an asylum state were denied
the ability to investigate even late-breaking security risks in a specific case they
might take a less generous attitude toward the admission of refugees,650 the
645
“During the war . . . [i]t was impossible to give all persons entering the country as refugees
a thorough security examination, which had to be deferred till exceptional circumstances
made it necessary”: Statement of Sir Leslie Brass of the United Kingdom, UN Doc. E/
AC.32/SR.35, Aug. 15, 1950, at 8. As Robinson observes, “[t]he purpose of Art. 9 is to
permit the wholesale provisional internment of refugees in time of war, followed by
a screening process”: Robinson, History, at 95.
646
Countervailing domestic or international legal obligations, for example duties to avoid
removal under the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, 1465 UNTS 85 (UNTS 24841), adopted Dec. 10, 1984, entered
into force June 26, 1987, may operate independently to prevent removal from the asylum
country.
647
Robinson argues that the provisional measures “have to be suspended if the person
involved can prove conclusively his status as a refugee”: Robinson, History, at 95. The
literal meaning of Art. 9 cannot, however, sustain this interpretation. The requirement
that in the case of a refugee “the continuance of such measures [must be] necessary in his
case in the interests of national security” is, however, a sufficient basis to argue that absent
such a finding, provisional measures must be terminated.
648
Contrary to both the express language and drafting history of Art. 9, Davy argues that
provisional measures may be applied not only to refugees who have not yet been recog-
nized, but also to “individuals who have – on the basis of a formal determination or just
informally – been admitted as refugees. They might all be subjected to provisional
measures”: Davy, “Article 9,” at 801.
649
See text at note 644.
650
“In his country refugees were granted legal status after a previous examination on their
entering the country; later information obtained sometimes threw new light on their
possible danger to the community. If the State were not permitted to take measures against
refugees in the light of such later information, it would be less willing to accord them
citizen status”: Statement of Mr. Winter of Canada, UN Doc. E/AC.32/SR.35, Aug. 15,
1950, at 10.

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drafters approved an exception to the presumption that a positive determin-

ation of refugee status ends the application of provisional measures.651 If there
is a specific finding in regard to a particular refugee “that such measures are still
necessary in his case in the interests of national security [emphasis added],”652
provisional measures may be continued for the time it takes to investigate
those concerns. As an exception to the general purpose of Art. 9, however, this
authority must be restrictively construed. In particular, it authorizes only the
continuance of provisional measures, not the establishment of indefinite
restrictions in the interests of national security.653 Nor does it provide any
general authority to limit the rights of persons already recognized to be
Convention refugees.654
As noted above,655 the primary concern of the drafters was to enable states
at war to intern refugee claimants pending status assessment.656 As adopted,
however, Art. 9 authorizes the suspension of rights other than freedom of
movement.657 Indeed, the plain language of Art. 9 suggests that in an appro-
priate case a state might suspend any of the rights set by the Refugee
Convention.658 Cantor nonetheless sensibly argues that because the goal is to

651
Edwards’ view (pace Davy, “Article 9,” at 800) that “[t]he suspension of rights continues
until refugee status is granted, or if recognized as a refugee, the measures can remain in
place as long as they are necessary [emphasis added]” (Edwards, “Temporary Protection,”
at 622–623) seems to take no account of the clear language of Art. 9 mandating a specific
determination that individuated continuation of measures post-recognition remains
necessary.
652
UN Doc. E/1850, Aug. 25, 1950, at 16. There is no indication that the rephrasing of the
provision (“that the continuance of such measures is necessary in his case”) was intended
to effect a substantive change of any kind. Quaere therefore the logic of Edwards’ invoca-
tion of unspecified parts of the travaux préparatoires to justify her rejection of
a presumptive duty to terminate special measures upon recognition: Edwards,
“Temporary Protection,” at 623, n. 156.
653
This is clear both from the reference to the continuance of “such measures,” and from the
inclusion of the provision as part of an article expressly dedicated to provisional measures.
654
Art. 9 authorizes the “continuance” of provisional measures in exceptional cases, but not
their initiation or reestablishment.
655
See note 636.
656
“Everyone would agree that a Government in time of crisis might be forced to intern
refugees in order to investigate whether they were genuine or not and therefore a possible
danger to the security of the country”: Statement of Mr. Bienenfeld of the World Jewish
Congress, UN Doc. E/AC.32/SR.34, Aug. 14, 1950, at 18. See also Statement of Mr. Hoare
of the United Kingdom, UN Doc. A/CONF.2/SR.28, July 19, 1951, at 6: “The kind of action
which he envisaged States might take under the provisions of [Art. 9] would be, for
example, the wholesale immediate internment of refugees in time of war, followed by
a screening process, after which many could be released.”
657
“Nothing in this Convention shall prevent a Contracting State . . . from taking provision-
ally measures which it considers to be essential”: Refugee Convention, at Art. 9.
658
For example, the British representative to the Ad Hoc Committee had “wished to explain
that the term ‘exceptional measures’ covered not only internment but such measures as
restrictions on the possession of wireless apparatus, in order to prevent the reception of

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 3.5 re s t r i c t i o n s on r ef u g ee r i g h ts 297

enable provisional measures, suspension of protection against expulsion or

refoulement – the consequence of which would ordinarily be permanent – is
not permissible by reliance on Art. 9.659
Just as the purport of Art. 9 is not limited to the drafters’ main concern to
enable states to detain refugees, neither is the triggering event for Art. 9 limited
to the drafters’ primary preoccupation with granting flexibility to states at
“war.” Art. 9 rather grants state parties the discretion to withhold rights from
refugees “in time of war or other grave and exceptional circumstances [emphasis
added].” This is not to suggest, for example, that serious economic difficulties
warrant a suspension of rights.660 Nor was it intended that this general
language would allow a government to invoke “public order” concerns,661 or
even general national security “interests.”662 It was understood that more than

code messages and the conversion of receiving into transmitting apparatus”: Statement of
Sir Leslie Brass of the United Kingdom, UN Doc. E/AC.32/SR.35, Aug. 15, 1950, at 8.
659
Cantor, “Unintended Consequence,” at 368; see also C. Wouters, International Legal
Standards for the Protection from Refoulement (2009), at 132. Cantor’s other reason for
adopting this position – that each of Arts. 32 and 33 (on expulsion and refoulement
respectively) contains an endogenous provision enabling states to deny protection for
reasons of national security – is less persuasive, as the drafters might well have sought to
liberate states from the strictures of those internal provisions when an asylum state is faced
with war or a comparable situation. Edwards takes a different view, arguing “that the text
reflects merely that nothing in the Convention prohibits derogation. It does not follow that
derogation is permissible against all of the rights in the Convention”: Edwards,
“Temporary Protection,” at 623. This leads her to contend that “non-discrimination
provisions” and “the most fundamental of rights” (she mentions Arts. 3, 4, 8, and 33 as
possible candidates) are not derogable under Art. 9: 624, 631. Davy in contrast opines that
“Article 9 does not specify the articles of the 1951 Convention from which the contracting
States may derogate. And Art. 9 does not contain a list of certain ‘core rights’ deemed non-
derogable”: Davy, “Article 9,” at 783.
660
Statement of Mr. Robinson of Israel, UN Doc. E/AC.32/SR.34, Aug. 14, 1950, at 21.
661
A suggestion to adopt this traditional formulation made by Mr. Perez Perozo of Venezuela
was not taken up by the drafters: UN Doc. E/AC.32/SR.35, Aug. 15, 1950, at 10. Thus, for
example, the suggestion by Zimbabwe that it would “round up” urban refugees not
employed or attending school in urban centers and remove them to refugee camps because
“[s]ome of the refugees could end up being destitute or getting involved in illegal activities
or prostitution for survival” would not be justified under Art. 9: see Daily News (Harare),
May 20, 2002. But see Edwards, “Temporary Protection,” at 623.
662
This language was suggested by Mr. Shaw of Australia: UN Doc. A/CONF.2/SR.6, July 4,
1951, at 13. It was, however, “felt that there might be reasonable grounds for objecting to
the Australian proposal that the phrase ‘or in the interests of national security’ should be
inserted, since it would enable a State to take exceptional measures at any time, and not
only in time of war or a national emergency”: Statement of Mr. Hoare of the United
Kingdom, ibid. at 14. See also Statements of Mr. Chance of Canada and Baron van
Boetzelaer of the Netherlands, ibid. In the result, only a subset of national security
concerns, namely those that arise during war or other grave and exceptional circum-
stances, were deemed sufficient to justify provisional measures. Kenya’s forcible removal
of refugees from urban areas to designated camps because of “security challenges in . . ..
urban centres and the need to streamline the management of refugees” (Kenya, Cabinet

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 298 3 e n t i t l emen t un der the refu gee c onvention

just “grave tension”663 is required; the circumstances must also truly be

“exceptional.”664
It is surely true that there is a “grave and exceptional circumstance” affecting
national security if the government of the asylum state is faced with the risk of
overthrow by illegal means.665 There is also little doubt that national security
may also be at risk where there is a fundamental threat to a state’s citizens,
wherever they may be located.666 But as Lord Slynn observed for the House of
Lords in Rehman, “I do not accept that these are the only examples of action
which makes it in the interests of national security to deport a person.”667

Secretary for Interior and Coordination of National Government, “Press Statement:

Refugees and National Security Issues,” Mar. 20, 2014; see also “Kenya Orders All
Refugees Back into Camps,” Al Jazeera, Mar. 26, 2014) therefore fails to demonstrate
attention to the truly exceptional circumstances required by Art. 9.
663
Yet the Conference of Plenipotentiaries noted that “the expression ‘national emergency’
seemed unduly restrictive”: Statement of Mr. Rochefort of France, UN Doc. A/CONF.2/
SR.6, July 4, 1951, at 14. The Australian delegate proposed the language “time of grave
tension, national or international,” which was explicitly rejected by the Conference of
Plenipotentiaries: UN Doc. A/CONF.2/SR.6, July 4, 1951, at 16. The French view that
derogation should be allowed in the event of “cold war, approximating to a state of war,
tension, a state of emergency or an international crisis calling for certain precautions”
must therefore also be taken to have been impliedly rejected: ibid. at 14.
664
This language was proposed by the representative of the Netherlands, and adopted by the
British delegate in the motion which ultimately was approved at the Conference of
Plenipotentiaries: ibid. at 16.
665
“It must be borne in mind that . . . each government had become more keenly aware of the
current dangers to its national security. Among the great mass of refugees it was inevitable
that some persons should be tempted to engage in activities on behalf of a foreign Power
against the country of their asylum, and it would be unreasonable to expect the latter not to
safeguard itself against such a contingency”: Statement of Mr. Hoare of the United
Kingdom, UN Doc. A/CONF.2/SR.16, July 11, 1951, at 8. See also Statement of
Mr. Chance of Canada, ibid.: “In drafting [Art. 33], members of [the Ad Hoc] Committee
had kept their eyes on the stars but their feet on the ground. Since that time, however, the
international situation had deteriorated, and it must be recognized, albeit with reluctance,
that at present many governments would find difficulty in accepting unconditionally the
principle [of non-refoulement].” This is in line with the classic concern that “[i]f a refugee is
spying against his country of residence, he is threatening the national security of that
country . . . The same applies if he is engaged in activities directed at the overthrow by
force or other illegal means of the government of his country of residence, or in activities
which are directed against a foreign government, which as a result threatens the government
of the country of residence with intervention of a serious nature”: A. Grahl-Madsen,
“Expulsion of Refugees,” in P. Macalister-Smith and G. Alfredsson eds., The Land
Beyond: Collected Essays on Refugee Law and Policy by Atle Grahl-Madsen 7 (2001), at 8.
666
This was accepted even at the initial hearing level: Rehman v. Secretary of State for the Home
Department, [1999] INLR 517 (UK SIAC, Sept. 7, 1999), per Potts J., at 528. This decision
was subsequently considered in Secretary of State for the Home Department v. Rehman,
[2000] 3 WLR 1240 (Eng. CA, May 23, 2000); and in Secretary of State for the Home
Department v. Rehman, [2001] UKHL 47 (UK HL, Oct. 11, 2001), discussed below.
667
Secretary of State for the Home Department v. Rehman, [2001] UKHL 47 (UK HL, Oct. 11,
2001), per Lord Slynn of Hadley, at [16].

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 3.5 res t r i ct i o n s on r ef ugee rights 299

In line with greater contemporary concern about the risks of terrorism,668

senior courts have embraced a more ample understanding of national
security.669 They have expressed concern that the traditional definition of
national security, under which there was a requirement to show the risk of
a direct impact on the host state,
limits too tightly the discretion of the executive in deciding how the interests
of the state, including not merely military defense but democracy, the legal
and constitutional systems of the state, need to be protected. I accept that
there must be a real possibility of an adverse effect on the [host state] for
what is done by the individual under inquiry, but I do not accept that it has
to be direct or immediate.670

668
“It seems to me that, in contemporary world conditions, action against a foreign state may
be capable indirectly of affecting the security of the United Kingdom. The means open to
terrorists both in attacking another state and attacking international or global activity by
the community of nations, whatever the objectives of the terrorist, may be capable of
reflecting on the safety and well-being of the United Kingdom or its citizens. The
sophistication of means available, the speed of movement of persons and goods, the
speed of modern communication, are all factors which may have to be taken into account
in deciding whether there is a real possibility that the national security of the United
Kingdom may immediately or subsequently be put at risk by the action of others”: ibid. On
the other hand, Davy advocates a restrictive understanding of national security, leading
her to opine that “threats pertaining to international terrorism do not qualify as ‘other
grave and exceptional circumstances’ within the meaning of Art. 9, at least as long as the
threats do not coincide clearly with inter-State hostilities”: Davy, “Article 9,” at 794–795.
669
Interpreting the similar notion of “public security,” the Court of Justice of the European
Union recently determined that “this concept covers both the internal and external
security of a Member State . . . Internal security may be affected by, inter alia, a direct
threat to the peace of mind and physical security of the population of the Member State
concerned . . . As regards external security, this may be affected by, inter alia, the risk of
a serious disturbance to the foreign relations of that Member State or to the peaceful
coexistence of nations”: K v. Netherlands, Dec. No. C-331/16 (CJEU, May 2, 2018), at [42].
See also JN v. Staatssecretaris voor Veiligheid en Justitie, Dec. No. C-601/15 PPU (CJEU,
Feb. 15, 2016), at [66]; and HT v. Land Baden-Württemberg, Dec. No. C-373/13 (CJEU,
June 24, 2015), at [78]. Scholarly opinion is divided on this question, with for example
Davy arguing for “keeping the meaning of the term narrow,” specifically limited to “the
integrity of the State only” (Davy, “Article 9,” at 797), while Edwards would include even
“serious disturbances to public order” as within the scope of national security: Edwards,
“Temporary Protection,” at 623.
670
Secretary of State for the Home Department v. Rehman, [2001] UKHL 47 (UK HL, Oct. 11,
2001), per Lord Slynn of Hadley, at [16]. See also Attorney General v. Zaoui, Dec. No.
CA20/04 (NZ CA, Oct. 1, 2004), at [135]: “It is clear from the travaux préparatoires for the
Refugee Convention that there was intended to be a margin of appreciation for States in
the interpretation of that phrase . . . Indeed, one would expect that views on security could
well differ between States, depending on the particular circumstances of those States . . .
Views as to what would constitute a danger to national security can also legitimately
change over time.”

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Thus, the House of Lords in Rehman expressly authorized the executive to

adopt a “preventative or precautionary” approach to the assessment of risks to
national security,671 finding that “[t]he United Kingdom is not obliged to
harbour a terrorist who is currently taking action against some other state
(or even in relation to a contested area of land claimed by another state) if that
other state could realistically be seen by the [executive] as likely to take action
against the United Kingdom and its citizens.”672
The Supreme Court of Canada not only endorsed the logic of the Rehman
decision, but defined a relatively liberal evidentiary framework for meeting the
broadened test of a risk to national security. In Suresh, the Court first acknow-
ledged that not every danger to the public of a host state rises to the level of a threat
to national security,673 and that it was generally accepted that “under international
law the state must prove a connection between the terrorist activity and the
security of the deporting country.”674 In line with the House of Lords, it held
that “possible future risks must be considered,”675 and that the risk to national
security “may be grounded in distant events that indirectly have a real possibility
of harming Canadian security.”676 But in defining how the ultimate question of
a “real and serious possibility of adverse effect [on] Canada”677 should be proved,
the Supreme Court of Canada went beyond the approach of the House of Lords to
endorse what appears to be an evidentiary presumption grounded in modern
global interdependence, namely that proof of a risk to the security of another
country is generally probative of a threat to Canadian national security:
International conventions must be interpreted in the light of current
conditions. It may once have made sense to suggest that terrorism in one
country did not necessarily implicate other countries. But after the year
2001, that approach is no longer valid [emphasis added].678
The implied assertion that terrorism in one country necessarily implicates the
security of other countries is surely an empirical overstatement. But if under-
stood to suggest simply that a connection is more likely than not, there are
good grounds to accept the notion of a (rebuttable) presumption, namely that
proof of risk to the most basic interests of one state by reason of the refugee’s
actions justifies a prima facie belief that the refugee poses a risk to the national

671
Secretary of State for the Home Department v. Rehman, [2001] UKHL 47 (UK HL, Oct. 11,
2001), per Lord Slynn of Hadley at [17].
672
Ibid. at [19]. 673 Suresh v. Canada, [2002] 1 SCR 3 (Can. SC, Jan. 11, 2002), at [84].
674
Ibid. at [85], citing J. Hathaway and C. Harvey, “Framing Refugee Protection in the New
World Disorder,” (2001) 34(2) Cornell International Law Journal 257, at 289–290.
675
Suresh v. Canada, [2002] 1 SCR 3 (Can. SC, Jan. 11, 2002), at [88].
676
Ibid. The views of the House of Lords and Supreme Court of Canada on this point were
adopted by the New Zealand Court of Appeal in Attorney General v. Zaoui, Dec. No.
CA20/04 (NZ CA, Oct. 1, 2004), at [147].
677
Suresh v. Canada, [2002] 1 SCR 3 (Can. SC, Jan. 11, 2002), at [88]. 678 Ibid. at [87].

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 3.5 r e s t r i c t i o n s on re f u g e e r i g ht s 301

security of his or her host state. This more moderate notion seems to infuse the
Court’s summary of the meaning of national security:
[A] person constitutes a “danger to the security of Canada” if he or she
poses a serious threat to the security of Canada, whether direct or indirect,
and bearing in mind the fact that the security of one country is often
dependent on the security of other nations. The threat must be “serious,” in
the sense that it must be grounded on objectively reasonable suspicion
based on evidence and in the sense that the threatened harm must be
substantial rather than negligible [emphasis added].679
In sum, a refugee poses a risk to the host state’s national security if his or her
presence or actions give rise to an objectively reasonable, real possibility of
directly or indirectly inflicted substantial harm to the host state’s most basic
interests, including the risk of an armed attack on its territory or its citizens, or
the destruction of its democratic institutions.680
Importantly, though, even where a risk to national security is shown, Art. 9
authorizes officials to take only “measures which [the state] considers to be
essential to the national security in the case of a particular person [emphasis
added].” While this language makes clear that states are entitled to make this
assessment for themselves, the right of self-judgement must still be exercised in
good faith.681 While provisional measures may be taken collectively against all
refugees, or in relation to a national or other subset of the refugee
679
Ibid. at [90].
680
While the drafters were primarily concerned to enable nationality-based withholding of
rights, Davy’s position that only nationality-based measures are authorized by Art. 9 is not
in keeping with the much more general language adopted: see Davy, “Article 9,” at 792,
794, 802. Edwards arguably goes too far in the opposite direction, suggesting that
“derogations must be applied on an individual basis, based on the merits of that case,
and they cannot be taken solely on the basis of nationality (per arts. 3 and 8)”: Edwards,
“Temporary Protection,” at 622. This approach is not only at odds with the intentions of
the drafters, but seems mistakenly to assume that all nationality-based differential treat-
ment is discriminatory. In fact, only such treatment that is not objective and reasonable is
discriminatory, a point conceded by Edwards herself: ibid. at 622.
681
“[I]nternational practice, in particular the jurisprudence of the ICJ in . . . Djibouti
v. France, supports the conclusion that self-judging treaty exceptions, unless they are
clearly framed otherwise, do not constitute a bar to jurisdiction but merely modify the
standard of review . . . This standard, as widely agreed, is whether the state in question has
relied on a self-judging clause in good faith”: S. Schill and R. Briese, “‘If the State
Considers’: Self-Judging Clauses in International Dispute Settlement,” (2009) 13(1) Max
Planck Yearbook of United Nations Law 61, at 139. As the British drafter observed, “[i]t
had therefore been decided that there should be a blanket provision whereby, in strictly
defined circumstances of emergency, derogation from any of the provisions of the
Convention would be permitted in the interests of national security [emphasis added]”:
Statement of Mr. Hoare of the United Kingdom, UN Doc. A/CONF.2/SR.28, July 19, 1951,
at 6. See also Davy, “Article 9,” at 798 (“Although Art. 9 explicitly accords discretion to
States, their discretion is not unlimited. [They must] use their powers under Art. 9 in good
faith”).

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 302 3 e ntitlement under the refugee c onvention

population,682 a wholesale suspension of rights will only be justifiable as

“essential” in response to an extremely compelling threat to national security.
More generally, a restriction will only be “essential” if it is clearly framed and
implemented in a manner that truly responds to the threat to national
security.683 As observed by the High Court of Kenya in a challenge to the
government’s order requiring all refugees to live in camps for reasons of
national security,
it is incumbent upon the State to demonstrate that in the circumstances . . .
a specific person’s presence or activity in the urban areas is causing danger
to the country and that his or her encampment would alleviate the
menace . . . A real connection must be established between the affected
persons and the danger to national security posed and how the indiscrim-
inate removal of all urban refugees would alleviate the insecurity threats in
those areas.684
In sum, provisional measures suspending refugee rights may only be taken
in time of war or comparable exceptional circumstances, and on the basis of
a good faith assessment that they are essential to protection of the receiving
state’s most vital national interests. The specific actions authorized are broad-
ranging, though they must be logically connected to eradication of the security

682
The reference to measures “in the case of a particular person” was agreed to without any
substantive discussion, apparently on the grounds that the original reference to “any
person” was unduly general relative to the usual reference in the Convention to “refugees”:
UN Doc. A/CONF.2/SR.6, July 4, 1951, at 13. Grahl-Madsen advocates a literal interpret-
ation, under which a state should “restrict the applicability of provisional measures to
individual persons, thus ruling out large scale measures against groups of refugees”: Grahl-
Madsen, Commentary, at 45. The concern, however, is that the drafters clearly did intend
to give states leeway to take provisional measures against whole groups, including in
particular large-scale provisional internment of persons arriving as part of a mass influx
during a war or comparably grave circumstances: see text at notes 635–636. See also Davy,
“Article 9,” at 800; and Edwards, “Temporary Protection,” at 624. An interpretation in line
with this object and purpose can align with the text, since measures are taken in the case of
a particular person whether they are directed against a particular person, or simply define
the treatment of a particular person on the basis of a generalized assessment.
683
The requirement that the provisional “measures . . . be essential . . . in the case of
a particular person [emphasis added]” suggests that the government in question should
satisfy itself that the consequential violation of the human rights of particular refugees is
an unavoidable necessity to avert the security risks occasioned by war or other exceptional
circumstances. A refusal to sanction resort to “avoidable” provisional measures is consist-
ent with the insistence of the drafters that this authority be “exceptional” and reserved for
“very special cases”: see text at notes 637–639. Davy suggests that the threshold test should
be whether “ordinary measures, i.e. non-derogating measures, proved or are plainly
inadequate for the maintenance of national security”: Davy, “Article 9,” at 794.
684
Kituo Cha Sheria et al. v. Attorney General, Petitions Nos. 19 and 115 of 2013 (Ken. HC,
July 26, 2013), at [87]. The result in this case was later overturned on different grounds in
Samow Mumin Mohamed et al. v. Cabinet Secretary, Ministry of Interior, Dec. No. 206-
2011 (Ken. HC, June 30, 2014).

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 3.5 restrictions on r efugee rights 303

concern and be justifiable as essential, taking full account of the particularized

harms consequentially occasioned. Provisional measures may not be of indef-
inite duration, but instead normally come to an end if and when an individual’s
refugee status is formally verified. While they may exceptionally be continued
where case-specific national security concerns have not been resolved by the
time refugee status is formally determined, provisional measures may not
otherwise be applied against persons recognized as Convention refugees.

3.5.2 Exemption from Exceptional Measures

Refugee Convention, Art. 8 Exemption from Exceptional Measures
With regard to exceptional measures which may be taken against the
person, property or interests of nationals of a foreign State, the
Contracting States shall not apply such measures to a refugee who
is formally a national of the said State solely on account of such
nationality. Contracting States which, under their legislation, are
prevented from applying the general principle expressed in this
article, shall, in appropriate cases, grant exemptions in favour of
such refugees.
Outside the context of war or comparable crisis – addressed by Art. 9685 – the
drafters of the Refugee Convention opposed any general right of states to
suspend refugee rights.686 Of particular concern was the practice following
the Second World War of subjecting refugees to confiscatory and other penal-
ties imposed on enemy aliens:
After the Second World War, many refugees who had been persecuted by
the Governments of the Axis countries were subjected to exceptional
measures taken against the nationals of enemy countries (internment,
sequestration of property, blocking of assets, etc.) because of the fact that
formally they were still de jure nationals of those countries. The injustice of
such treatment was finally recognized and many administrative measures
(screening boards, special tribunals, creation of a special category of “non-
enemy” refugees, etc.) were used to mitigate the practice.687
To ensure that refugees would not be stigmatized by the fact of their
formal nationality,688 the International Refugee Organization played an

685
See Chapter 3.5.1. Because Art. 9 clearly provides that “[n]othing in this Convention [emphasis
added]” prevents a state from taking provisional measures “in time or war or other grave and
exceptional circumstances,” that clause ousts the general rules of Art. 8 where applicable.
686
See Chapter 3.5.1 at notes 643–644. 687 Secretary-General, “Memorandum,” at 48.
688
The nature of the dilemma is neatly summarized in Ad Hoc Committee, “First Session
Report,” at 42: “Unless a refugee has been deprived of the nationality of his country of
origin he retains that nationality. Since his nationality is retained, exceptional measures
applied . . . to such nationals would be applied to him. The article provides therefore that

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 304 3 e n t i t l emen t un der the refu gee c onvention

instrumental role in persuading governments to adopt Art. 44 of the 1949

Geneva Convention relative to the Protection of Civilian Persons in Time
of War:
[T]he Detaining Power shall not treat as enemy aliens exclusively on the
basis of their nationality de jure of an enemy State, refugees who do not, in
fact, enjoy the protection of any Government.689
As the Secretary-General convincingly argued, “[i]f this rule is to be applied in
time of war, a similar rule must a fortiori be applied in time of peace. The object
of Art. [8] is to remove both the person and property and interest of refugees
from the scope of exceptional measures.”690
Nor was the concern of the drafters restricted to the particular measures
that had been taken at the end of the Second World War. The French
representative to the Ad Hoc Committee observed that refugees were some-
times penalized during peacetime on the grounds of their formal nationality
by subjection to both retaliatory measures and restrictions resulting from
economic or financial crisis.691 While states required a margin of discretion
to withhold rights from persons claiming refugee status during wartime,
Mr. Juvigny insisted that there was no basis to assert a comparable preroga-
tive during peacetime.692 The decision was therefore taken to separate the
rules relating to exceptional measures applicable only during war or

exceptional measures shall not be applied only on the grounds of his nationality.” The
French delegate to the Ad Hoc Committee indicated that “the word ‘formally’ meant
‘legally’”: Statement of Mr. Juvigny, UN Doc. E/AC.32/SR.35, Aug. 15, 1950, at 7. Grahl-
Madsen concludes that “[t]he word ‘formally’ means ‘legally’ or de jure, that is to say,
according to the municipal law of the State concerned”: Grahl-Madsen, Commentary,
at 40.
689
Geneva Convention relative to the Protection of Civilian Persons in Time of War, 75 UNTS
287 (UNTS 973), done Aug. 12, 1949, entered into force Oct. 21, 1950, at Art. 44. The Red
Cross has affirmed that Art. 8 of the Refugee Convention “clearly reflects Article 44 of the
Fourth Geneva Convention”: “Humanitarian Debate: Law, Policy, Action,” (2001) 83(843)
International Review of the Red Cross 633.
690
Secretary-General, “Memorandum,” at 48. “[T]he assumption of the Article is that, under
certain circumstances, international law permits exceptional measures, defined as (puni-
tive, preventive, or formally wrongful) measures employed by a State vis-à-vis another
State or the nationals of another State, especially in times of conflict or dispute”: U. Davy,
“Article 8,” in A. Zimmermann ed., The 1951 Convention Relating to the Status of Refugees
and its 1967 Protocol: A Commentary 755 (2011) (Davy, “Article 8”), at 757; see also
Edwards, “Temporary Protection,” at 621 (“[A]rt. 8 actually carves out an exception to the
generally accepted position at international law”).
691
Statement of Mr. Juvigny of France, UN Doc. E/AC.32/SR.35, Aug. 15, 1950, at 5.
692
The French representative noted the importance of “making a distinction between two types
of exceptional measures . . . namely: on the one hand, measures taken in peacetime or during
crises of a non-military type . . . and, on the other hand, measures taken in exceptional
circumstances which affected peace or national security. The provisions relating to the latter
type of measures would naturally be more severe than the former”: ibid.

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 3.5 restrictions on r efugee rights 305

comparable emergencies (Art. 9) from those governing measures which

might be taken at any time (Art. 8).693
The logic of exempting refugees from measures of retaliation or retorsion is
fairly straightforward. The sorts of penalties sometimes applied against the
citizens of a particular nationality during peacetime – for example, freezing or
blocking of assets, the denial of visas, or curbing of civil liberties694 – are
intended to punish or pressure the state of nationality to act or refrain from
acting in a particular way. As observed above in the discussion of
reciprocity,695 there is little reason to believe that a state which is the target
of acts of retaliation or retorsion would be influenced by the suffering of
persons who have rejected its protection by the act of seeking refugee status.
The injustice of including refugees in the scope of exceptional measures is
therefore clear.
The context governed by Art. 8 is quite broad.696 It was agreed, for example,
that Art. 8 governs resort to exceptional measures during a “cold war, approxi-
mating a state of war, tension, a state of emergency or an international crisis
calling for certain internal precautions.”697 There could also be a temporary
dispute between states, for example in consequence of trade concerns or the
failure to pay damages.698 Diplomatic relations may have been suspended or
693
“The measures referred to in article [8] were not designed only for times of emergency.
A second paragraph should be added to cover the particular case of emergency in which
the rights of refugees could be restricted, but only as little as was absolutely necessary”:
Statement of Mr. Robinson of Israel, UN Doc. E/AC.32/SR.34, Aug. 14, 1950, at 22. In the
Report of the Ad Hoc Committee, the two concerns were therefore addressed in different
paragraphs of the same article. The Report notes simply that “the Committee thought it
advisable to add a paragraph in order to clarify the application of this article in regard to
measures related to national security in time of war and national emergency”: Ad Hoc
Committee, “Second Session Report,” at 12. The Conference of Plenipotentiaries adopted
a British proposal (UN Doc. A/CONF.2/26) to separate the two paragraphs into distinct
articles of the Convention: UN Doc. A/CONF.2/SR.6, July 4, 1951, at 16.
694
In historical context, exceptional measures have included “the duty of certain foreign
nationals to register, internment, deportation, the prohibition to land or to embark, the
assignment of residence, restrictions on the changing of names, restrictions with respect to
professions or employment, restrictions with respect to communications or associations,
or restrictions with respect to property (appointment of custodians) and to transactions in
foreign currency, gold, or silver”: Davy, “Article 8,” at 772.
695
See Chapter 3.2.2 at note 263.
696
“[I]t was impossible to legislate for future possible contingencies . . . It was, therefore,
important that [Art. 8] should be made as flexible as possible”: Statement of Mr. Petren of
Sweden, UN Doc. A/CONF.2/SR.26, July 19, 1951, at 9. It is not textually limited to
peacetime, though it can clearly be ousted by the more specific language of Art. 9 during
time of war or other critical national emergency: see Chapter 3.5.1.
697
Statement of Mr. Rochefort of France, UN Doc. A/CONF.2/SR.6, July 4, 1951, at 14.
698
In the Ad Hoc Committee, the Israeli representative “inquired whether the article was
broad enough to include possible retaliation and retorsion by countries against subjects of
States with which they had a temporary disagreement. He did not think that exceptional
measures of that kind should apply to refugees from countries against whose subjects such

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 306 3 e n t i t l emen t un der the refu gee c onvention

broken off completely. In all such circumstances, whatever measures may be

taken en bloc against the citizens of the offending state may not be applied
against refugees,699 irrespective of the duration and character of a particular
refugee’s presence.700
There are two important qualifications to this general rule.
First, the duty to exempt refugees from exceptional measures governs only
measures taken solely on the grounds of nationality.701 Because the objective of
Art. 8 is to avoid unfairly stigmatizing refugees on the basis of their possession of
a formal, but de facto ineffective, nationality,702 only “wholesale measures”703
defined by nationality contravene Art. 8. Robinson observes that

measures were directed”: Statement of Mr. Robinson of Israel, UN Doc. E/AC.32/SR.21,

Feb. 2, 1950, at 7. The Chairman, Mr. Chance of Canada, confirmed that such measures
would be precluded by Art. 8: ibid. at 8.
699
The claim that “[e]xceptional measures within the meaning of Art. 8 of the 1951
Convention must be individualized” (Davy, “Article 8,” at 772) is odd, given both the
class-based nature of the historical exceptional measures that motivated the drafting of
Art. 8 and the fact that Art. 8 refers to “measures which may be taken against the person,
property or interests of nationals of a foreign State [emphasis added]”: Refugee
Convention, at Art. 8.
700
Indeed, as Grahl-Madsen suggests, because Art. 8 is not framed to require territorial
attachment it likely operates to exempt a refugee from nationality-based exceptional
measures in any country that exercises jurisdiction over him or her. “There can be no
doubt that the Article applies to all Convention refugees, irrespective of whether they are
present in the territory of the Contracting State concerned, and irrespective of the
duration and character of their presence (legal or illegal). Consequently country A may
not apply exceptional measures (for example sequestration of property) to a refugee from
country B who has found asylum and is living in country C”: Grahl-Madsen, Commentary,
at 40. Davy’s criticism of Grahl-Madsen’s position (see Davy, “Article 8,” at 769) needlessly
invokes the notion of “special title” at international law, rather than focusing on the more
clearly applicable notion of the level of attachment for Art. 8 rights.
701
“[T]he word ‘solely’ . . . indicated that, while exceptional measures could be taken against
refugees, they could not be taken on the grounds of nationality alone”: Statement of
Mr. Henkin of the United States, UN Doc. E/AC.32/SR.21, Feb. 2, 1950, at 7. This
understanding was affirmed by both the Turkish representative, ibid., and by the
Chairman, Mr. Chance of Canada, ibid. at 8: “[T]he article would prevent exceptional
measures of retaliation or retorsion from being applied to refugees solely on the grounds
of their nationality.”
702
“Article 8 does not mention former nationals of a foreign State. If, however, measures are
taken against persons solely because they are, or have been (at any time) or are suspected
of being, nationals of a certain State, it goes without saying that the case will fall within the
scope of Article 8”: Grahl-Madsen, Commentary, at 40. See also Statement of the President,
Mr. Larsen of Denmark, UN Doc. E/AC.32/SR.35, Aug. 15, 1950, at 6; and Robinson,
History, at 93–94: “[I]n practice denaturalized citizens of an enemy state or persons whose
origin was in such a state were frequently subjected to all or some of the measures taken
against nationals. A proper interpretation of Art. 8 would lead us to the conclusion that
mere former citizenship or origin in such a state cannot a fortiori be a reason for the
application of exceptional measures to a refugee.”
703
Weis, Travaux, at 75.

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 3.5 re s t r i c t i o n s on r ef u g ee r i g h ts 307

a state is free to apply to a refugee exceptional measures if they are taken on

grounds other than his [formal] nationality. Thus Art. 8 . . . would not
hinder the application of exceptional measures on account of the eco-
nomic or political activity or special unwanted contacts of a refugee, if such
activity or contacts are, in general, a reason for applying all or some of the
exceptional measures.704
As this analysis suggests, the critical issue is the generality of the measure in
question.705 So long as the exceptional measure is not aimed simply at persons
of a particular nationality, but is instead applicable to all persons who meet the
contingent standard that governs the right suspended, then refugees cannot
complain when they too are subject to its impact.706 For example, refugees are
entitled to property rights on terms “not less favourable than [those] accorded
to aliens generally in the same circumstances.”707 Confiscatory exceptional
measures applied to all aliens (whatever their nationality) would thus not
contravene Art. 8. On the other hand, refugees are entitled to access rationing
systems on terms of equality with nationals of the asylum state.708 Exceptional
measures directed to aliens generally cannot therefore lawfully be applied
against refugees, since refugees are outside the scope of the group legally
subject to the measures. Importantly, though, even exceptional measures that
do not contravene Art. 8 may nonetheless be challenged on the basis of the
general duty of non-discrimination,709 though the margin of appreciation
usually accorded states may undercut the utility of that remedy.710
Second, the goal of Art. 8 is to ensure that exceptional measures defined by
nationality do not, in practice, result in the denial of rights to refugees. The

704
Robinson, History, at 91.
705
See Grahl-Madsen, Commentary, at 39: “The reference to ‘nationals of a foreign State’
considerably restricts the applicability of the Article. It does not apply to measures which
may be taken against stateless persons as such, or against aliens generally, not to speak of
measures which are directed at one’s nationals and aliens without discrimination.”
706
“The Belgian representative appeared to be opposed to any possibility of interning
refugees; the text however only prohibited such internment if it were effected simply on
account of the refugees’ nationality. In 1939–40, and at later periods, the French author-
ities had interned not only aliens, but also a few French nationals suspected of fifth-
column activities. Such a measure, which only conditions of crisis could justify, could not
be prohibited under article [8]”: Statement of Mr. Juvigny of France, UN Doc. E/AC.32/
SR.35, Aug. 15, 1950, at 7.
707
Refugee Convention, at Art. 13. 708 Ibid. at Art. 20.
709
The general duty to ensure equal protection of the law without discrimination under Art.
26 of the Civil and Political Covenant applies to all laws and policies: see Chapter 1.5.5.
Davy’s concerns about the salience of non-discrimination law do not take account of this
broader obligation: Davy, “Article 8,” at 765. In any event, and contrary to Davy’s claim
that Art. 8 conflicts with the endogenous guarantee of non-discrimination in Art. 3, Art. 8
“is a non-discrimination principle, reemphasizing the non-discrimination clause in art. 3”:
Edwards, “Temporary Protection,” at 621.
710
See Chapter 1.5.5 at note 484 ff.

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 308 3 e ntitlement un der the refugee c onvention

Swedish government waged a determined battle at the Conference of

Plenipotentiaries to ensure that Art. 8 was not understood to require govern-
ments to rewrite domestic laws that fail to codify an exemption from excep-
tional measures in the case of refugees. Originally, the Swedish objective
seemed to be to grant states a near-complete right to decide for themselves
when refugees should benefit from an exemption from exceptional
measures.711 But as the Belgian representative noted, the validation of state
discretion to define the circumstances in which exemption is warranted
“would considerably reduce the rights accorded to refugees by the
Convention.”712 More specifically:
It was . . . to be feared that [the Swedish approach] would result in a regime
of arbitrary decisions, since countries of residence would be at liberty
either not to apply to a refugee the exceptional measures which they
might be obliged to take against the person, property or interests of
other nationals of his country of origin, or to grant certain exemptions
in the case of such refugees. Refugees would therefore have no absolute
right to exemption from the application of those measures, and decisions
as to the cases in which exemption was appropriate would be left to
Governments.713
Even more emphatically, the Canadian representative asserted that the
Swedish initiative resulted in an approach to Art. 8 that was “guilty of the
unhappy fault of, so to speak, taking away with one hand what it gave with the
other. In its original form, and before an attempt had been made to take into
account the circumstances and laws of a certain country, the article had
consisted of a simple and straightforward statement.”714
Confronted with such direct attacks, the Swedish government sought to
downplay the significance of the amendment it had sponsored to the text of

711
Sweden asserted that “[o]ne could easily imagine cases in which it would appear fully
justified to maintain the confiscation of the property of a refugee even if that property, in
his hands, did not constitute a menace to national security. A person might for instance
have fled from Nazi Germany at a very late stage of the Second World War after having
been a militant Nazi up to then. Should States decide to take certain measures against the
nationals of another State, it would have to be left to their administrations to decide
whether refugees from the country in question could be exempted from them”: Statement
of Mr. Petren of Sweden, UN Doc. A.CONF.2/SR.27, July 18, 1951, at 28–29. Yet, as the
British representative subsequently observed (UN Doc. A/CONF.2/SR.28, July 19, 1951,
at 8), each state party would first have to determine whether or not the individual in
question even qualified as a refugee. In the case cited by the Swedish delegate, there is good
reason to believe that exclusion from refugee status under Art. 1(F)(a) is a real possibility.
In any event, it is unclear that a militant Nazi fleeing Nazi Germany would in any sense
have a well-founded fear of being persecuted in Nazi Germany.
712
Statement of Mr. Herment of Belgium, UN Doc. A/CONF.2/SR.27, July 18, 1951, at 31.
713
Statement of Mr. Herment of Belgium, UN Doc. A/CONF.2/SR.28, July 19, 1951, at 8.
714
Statement of Mr. Chance of Canada, UN Doc. A/CONF.2/SR.34, July 25, 1951, at 18.

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 3. 5 res t r i ct i o n s on r ef ugee rights 309

Art. 8. It insisted that the addition of the words “or shall provide for appropri-
ate exemptions in respect of such refugees”715 was simply intended to allow
governments the option of meeting their Art. 8 obligation either by way of
a generic exemption for refugees from exceptional measures, or by extending
case-specific exemptions to all refugees.716 Whichever option is taken, the result
is the same, namely, a mandatory duty to exempt refugees from exceptional
measures.717 As the President of the Conference concluded, “the problem turned
on the question of whether the application of certain measures should be
ensured by means of automatic legislation or by means of exemptions. In either
case the obligations of the State would be the same [emphasis added].”718
In a last-minute effort to capture the essence of this consensus,719 the
Canadian representative persuaded delegates to accept an oral amendment to
the previously accepted Swedish phrasing of Art. 8. Sadly, the precise language
chosen can be construed in a way that gives rise to the very concern that both
the Canadian delegate and the Conference as a whole appeared determined to
avoid.720 Instead of the Swedish language “or shall provide for appropriate
exemptions in respect of such refugees,”721 the Canadian amendment adopted
by the Conference provides that state parties whose domestic legislation
prevents the granting of en bloc exemption from exceptional measures to

715
UN Doc. A/CONF.2/37.
716
The French representative’s view of the Swedish approach was that it “was very far from
suggesting measures of an illiberal nature. It laid upon states the obligation to grant certain
exemptions at the time when they were unable to observe the general principle enunciated
in the article. If that principle was not acceptable to States, they would enter a general
reservation to the article. He would interpret the words ‘ou accorderont’ as imposing an
obligation to grant exemptions”: Statement of Mr. Rochefort of France, UN Doc. A/
CONF.2/SR.34, July 25, 1951, at 20.
717
“Either legislation could be passed exempting certain categories of aliens from the application
of the enemy property act, or some arrangement could be made to enable such persons to
claim the return of their property provided they could substantiate their right to restoration.
Those two possibilities must both be allowed for, or administrative difficulties would arise”:
Statement of Mr. Petren of Sweden, UN Doc. A/CONF.2/SR.28, July 19, 1951, at 8.
718
Statement of the President, Mr. Larsen of Denmark, UN Doc. A/CONF.2/SR.34, July 25,
1951, at 19.
719
“[H]e believed that the meeting was on the brink of agreement. There was no objection to
the general principle that no exceptional measures should be applied to a refugee solely on
account of his nationality”: Statement of Mr. Chance of Canada, ibid. at 22.
720
“The Conference posed the question whether the word ‘shall’ should be interpreted as being
mandatory or permissive and came out firmly in favor of the first interpretation[]. With
regard to substance if not to form, the obligations of the Contracting States would be the
same whether they based themselves on the first or the second sentence”: Grahl-Madsen,
Commentary, at 41. Robinson, however, takes the view that “the second sentence (included
by the Conference) considerably restricts the import of this article . . . It is obvious that the
sentence was included in order to ‘appease’ states which are not or would not be willing to
accept the general rule as expressed in the first sentence”: Robinson, History, at 90–91.
721
UN Doc. A/CONF.2/37.

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 310 3 e n t i t l e m e n t u n d e r t h e r e f u g e e co n v e n t i o n

refugees “shall, in appropriate cases, grant [exemptions] in favour of such refugees

[emphasis added].”722 Thus, even though the Swedish government had been
content with language that appeared quite clearly to impose a mandatory duty
to exempt all refugees (albeit via a process of particularized exemptions), the literal
text of the Canadian amendment – which includes the qualifying phrase “in
appropriate cases” – may be read to suggest that there will be some cases in
which exemption will not be appropriate, and hence not necessary.723
This is clearly a case in which reliance simply on the plain language of the
treaty would result in an interpretation that is inconsistent not only with the
general purpose of the Refugee Convention, but moreover with the express
intention of every state that addressed the intended scope of Art. 8 at the
Conference of Plenipotentiaries.724 This unhappy result can easily be avoided,
however, by seeing the reference to “appropriate cases” not as an invitation to
deny exemption to some refugees, but as a shorthand reference to “refugees
who would otherwise have been caught by nationality-based exceptional
measures.” The second sentence of Art. 9 does make clear, however, that states
need not formally enact exemptions from exceptional measures that accrue to
the benefit of refugees, so long as they are prepared in practice dependably to
grant refugees exemption from such measures.725
Art. 8 sadly remains of contemporary relevance to refugees. While states
impose nationality-based exceptional measures much less frequently than
in the past,726 the ability effectively to contest any such measures based only
on the general duty not to discriminate in international law remains
722
The oral amendment proposed by Canada referred to “exceptions” rather than “exemp-
tions”: Statement of Mr. Chance of Canada, UN Doc. A/CONF.2/SR.34, July 25, 1951,
at 22.
723
See e.g. Robinson, History, at 93: “What these cases are depends on what the law provides;
in other words, by domestic legislation the state can fix the instances in which exemption is
granted but the limits cannot be such as to refuse exemption when it would not threaten
the proper application of the measures and their contemplated effects.”
724
Despite the clear drafting history and context, Davy seems to rely on bald text erroneously
to suggest that the second clause of Art. 8 is an “escape clause,” “allow[ing] for
a derogation . . . from the principle laid down in the first sentence”: Davy, “Article 8,” at
768, 765. This is not so. The second clause merely enables the duties under the first
sentence to be met by dependably and routinely granting refugees exemptions from
exceptional measures rather than by legislating generally to exempt refugees from all
such measures, as the first clause assumes.
725
Robinson argues that “[i]f, as seems to be the case, ‘legislation’ refers not only to past but
also to future laws, the second sentence is an ‘invitation’ to enact [legislation prohibiting
en bloc exemption from exceptional measures for refugees], wherever it does not yet exist.
From the viewpoint of a state it is undoubtedly more prudent not to be bound by a general
rule of exemption”: Robinson, History, at 93. It is unclear that this is so. Given the
consensus in favor of a duty to exercise discretion in favor of refugees, the net result
may simply be increased processing costs for the asylum country.
726
Yet as Davy rightly observes, “[i]n the United States, exceptional measures are still an issue
today, now coined ‘emergency economic powers’”: Davy, “Article 8,” at 772.

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 3.5 re s t r i c t i o n s on r ef u g ee r i g h ts 311

unclear.727 As analyzed in detail above, the drafters of the Civil and Political
Covenant recognized that states enjoy latitude to allocate some rights differen-
tially without engaging in discriminatory conduct.728 This ambiguity is reflected
in the jurisprudence of the UN Human Rights Committee related to non-
citizens: even as the Committee has insisted that nationality-based differenti-
ation cannot be assumed to be reasonable and hence non-discriminatory, it
nonetheless takes the view that “it is necessary to judge every case on its own
facts.”729 Under this approach, for example, the Committee has found
nationality-based differentiation under bilateral treaties, in national regulations
governing access to administrative appeals, and under domestic processes for
security assessment to be reasonable and thus not discriminatory.730 An espe-
cially worrisome signal is moreover sent by the fact that while the fungible
emergency derogation authority under the Covenant prohibits discrimination
on a number of grounds, nationality is not among them.731
In this context, the unambiguous guarantee in Art. 8 of the Convention – that
refugees must always be exempted from nationality-based exceptional measures,
whether that exemption is achieved by general enactment or by the routine and
dependable granting of exceptions – is a powerful bulwark against refugees being
disfranchised in the context of interstate strife between their country of origin
and their asylum state.732

727
“The extent to which refugees are presently privileged by the article depends on the
permissibility of exceptional measures under international law in general. The more
human rights law or humanitarian law undermine the legitimacy of exceptional measures,
the fewer the privileges [that] derive from the provisions of Art. 8”: Davy, “Article 8,”
at 758.
728
See Chapter 1.5.5 at note 450.
729
Ibid. at note 483. The conclusion that exceptional measures always violate Art. 26 of the
Covenant is thus overly optimistic: see Davy, “Article 8,” at 777.
730
See Chapter 1.5.5 at note 471 ff.
731
Civil and Political Covenant, Art. 4(1) (which prohibits discrimination under emergency
derogation authority only to the extent that it is “solely on the grounds of race, colour, sex,
language, religion or social origin”). Even the more specialized Racial Discrimination
Convention, which disallows race-based discrimination (said to include “national origin”)
during even an emergency, nonetheless allows nationality-based differentiation that is
adjudged non-discriminatory – i.e. that is found to be objective and reasonable, raising the
specter of deference to state understandings of what is required in a particular circum-
stance: International Convention on the Elimination of All Forms of Racial
Discrimination, 60 UNTS 195 (UNTS 9464), Dec. 21, 1965, entered into force Jan. 4,
1969, at Arts. 1(3), 2, 5.
732
There is no basis for Edwards’ view that “Article 8 does not, however, exempt entirely
refugees from exceptional measures; only if the measures are discriminatory in nature”:
Edwards, “Temporary Protection,” at 622. To the contrary, whereas international human
rights law does require evidence of discrimination, Art. 8 makes no reference to discrim-
ination but instead requires simply that “the Contracting States shall not apply such
measures to a refugee who is formally a national of the said State solely on account of
such nationality”: Refugee Convention, at Art. 8.

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 4

Rights of Refugees Physically Present

This chapter addresses those rights that follow automatically and immediately
from the simple fact of being a Convention refugee within the effective
jurisdiction of a state party. These primary protection rights must continue
to be respected throughout the duration of refugee status, with additional
rights accruing once the asylum-seeker’s presence is regularized, and again
when a refugee is allowed to stay or reside in the asylum country.
Convention rights can obviously not be claimed until all the requirements of
the Convention refugee definition are satisfied, including departure from one’s
own state.1 But since refugee rights are defined to inhere by virtue of refugee
status alone, they must be respected by state parties until and unless a negative
determination of the refugee’s claim to protection is rendered. This is because
refugee status under the Convention arises from the nature of one’s predica-
ment rather than from a formal determination of status.2 Refugee rights,
however, remain inchoate until the refugee comes under the de jure or de
facto jurisdiction of a state party to the Convention since the Convention binds
particular state parties, each of which is required to meet obligations only
within its own sphere of authority.3
Assuming that these two conditions are met, what rights ought refugees to
be able to invoke as matters of basic entitlement, whether or not their status has
1
“For the purposes of the present Convention, the term ‘refugee’ shall apply to any person
who . . . is outside the country of his nationality and is unable or . . . is unwilling to avail
himself of the protection of that country; or who, not having a nationality and being outside
the country of his former habitual residence . . . is unable or . . . unwilling to return to it
[emphasis added]”: Convention relating to the Status of Refugees, 189 UNTS 2545 (UNTS
2545), done July 28, 1951, entered into force Apr. 22, 1954 (Refugee Convention), at Art.
1(A)(2). See generally J. Hathaway and M. Foster, The Law of Refugee Status (2014)
(Hathaway and Foster, Refugee Status), at 17–90.
2
“A person is a refugee within the meaning of the 1951 Convention as soon as he fulfils the
criteria contained in the definition. This would necessarily occur prior to the time at which
his refugee status is formally determined. Recognition of his refugee status does not
therefore make him a refugee but declares him to be one. He does not become a refugee
because of recognition, but is recognized because he is a refugee”: UNHCR, Handbook on
Procedures and Criteria for Determining Refugee Status (1979, re-issued 1992 and 2019)
(UNHCR, Handbook), at 9. See Chapter 3.1 at note 28 ff.
3
See Chapter 3.1.1 at note 56.
312

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 4.1 r ight to enter and remain in an asylum state 313

been formally assessed? While the extension of some rights can logically be
delayed until a refugee’s status has been regularized, for example by admission
to a procedure for verification of refugee status, which refugee interests should
be immediately and unconditionally recognized?
Six categories of rights inhere immediately upon accessing a state party’s
jurisdiction. First, persons who claim to be refugees are generally entitled to
enter and remain in the territory of a state party until and unless they are
found not to be Convention refugees. Second, they should not be arbitrarily
detained or otherwise penalized for seeking protection. Third, it should be
possible to meet essential security and economic subsistence needs while the
host state takes whatever measures it deems necessary to verify their claim to
Convention refugee status. Fourth, basic human dignity is to be respected,
including by acknowledging property and related rights, preserving family
unity, honoring freedom of thought, conscience, and religion, and providing
primary education to refugee children. Fifth, authoritative documentation of
identity and status in the host state should be made available. Sixth, asylum-
seekers must have access to a meaningful remedy to enforce their rights,
including to seek a remedy for breach of any of these primary protection
rights.

4.1 Right to Enter and Remain in an Asylum State

(Non-refoulement)
The most urgent need of refugees is to secure entry into a territory in which
they are sheltered from the risk of being persecuted. This fundamental concern
must somehow be reconciled to the fact that nearly all of the earth’s territory is
controlled or claimed by governments which, to a greater or lesser extent,
restrict access by non-citizens. This clash of priorities has led to proposals to
lease4 or purchase5 land from states on which to shelter refugees. There have
even been attempts to establish internationally supervised sanctuaries for
would-be refugees within the territory of their home states including, for
example, a plea from Bangladesh in 2017 that the international community
establish a “safe zone” for at-risk Rohingya inside Burma.6 To date, however,
limited international authority and resources have prevented these options
from replacing entry into a foreign state as the most logical means to access

4
E. Burton, “Leasing Rights: A New International Instrument for Protecting Refugees and
Compensating Host Countries,” (1987) 19(1) Columbia Human Rights Law Review 307.
5
In 2015, two wealthy individuals proposed purchasing islands on which refugees could live:
A. Taylor, “A Silicon Valley Mogul Wants to Solve the Global Refugee Crisis by Creating a
New Country,” Washington Post, July 23, 2015; CNN, “Egyptian Billionaire Offers to Buy
Island for Refugees,” Sept. 10, 2015.
6
“The Solution Lies in Myanmar: Bangladesh Wants ‘Safe Zones’ set up to Protect Rohingya,”
South China Morning Post, Sept. 8, 2017.

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 314 4 r i g h t s of r ef u g e e s p h y s i c a l l y p r e s e n t

safety.7 The stakes are high: refugees denied admission to a foreign country are
likely either to be returned to the risk of persecution in their home state, or to
be thrown into perpetual “orbit” in search of a state willing to authorize entry.8
There are many historical cases which illustrate the potentially grave conse-
quences of a failure to recognize this need of refugees to be able to enter
another state. A particularly notorious example involved 907 German Jews
who fled persecution in their homeland aboard the ocean liner St. Louis. After
the Cuban government refused to recognize their entrance visas, these refugees
were denied permission to land by every country in Latin America. The United
States dispatched a gunboat to ensure that the St. Louis remained at a distance
which prevented its passengers from swimming ashore. Canada argued that
the passengers of the St. Louis were not a Canadian problem. As Abella and
Troper observe, “the Jews of the St. Louis returned to Europe, where many
would die in the gas chambers and crematoria of the Third Reich.”9
Modern refugees may similarly face the complete closure of borders. In
April 1991, Kurdish Iraqis fleeing reprisals following a failed uprising against
Saddam Hussein confronted a closed border with Turkey, leaving them
stranded and unprotected.10 Both Zaïre and Tanzania at times simply closed
their borders to refugees attempting to flee the brutal conflict for dominance
between Hutus and Tutsis in northeastern Africa.11 Macedonia admitted

7
These regimes are effectively critiqued in B. Frelick, “Preventive Protection and the Right to
Seek Asylum: A Preliminary Look at Bosnia and Croatia,” (1992) 4(4) International Journal
of Refugee Law 439; and A. Shacknove, “From Asylum to Containment,” (1993) 5(4)
International Journal of Refugee Law 516.
8
See C. Pastore, Refugees in Orbit: The Problem of Refugees Without a Country of Asylum
(1986).
9
I. Abella and H. Troper, None is Too Many: Canada and the Jews in Europe 1933–1948
(1992), at 64.
10
“The reluctance to accommodate the Kurds was political rather than capacity-based, as
evidenced by the willingness of the Turkish state to receive 350,000 Bulgarian Turks for
permanent settlement in 1989”: K. Long, “No Entry! A Review of UNHCR’s Response to
Border Closures in Situations of Mass Refugee Influx,” UNHCR Policy Development and
Evaluation Service, June 2010 (Long, “Review of UNHCR’s Response”), at [103].
11
On August 19, 1994, Deputy Prime Minister Malumba Mbangula of Zaïre declared that no
refugees would be allowed to cross from Rwanda into Zaïre. Immediately prior to his
announcement, 120 refugees per minute had been crossing into Zaïre at the frontier post of
Bakavu: “Le Zaïre ferme ses frontières aux réfugiés,” Le Monde, Aug. 22, 1994, at 4. As some
50,000 refugees attempted to flee ethnic clashes in Burundi, the Tanzanian government
officially closed its border with Burundi on March 31, 1995: US Agency for International
Development, “Rwanda: Civil Strife/Displaced Persons Situation Report No. 4,” Apr. 5,
1995, at 4. The Tanzanian Prime Minister told Parliament that “[t]he gravity of the
situation, especially for those coming from Burundi and Rwanda, has made it inevitable
for Tanzania to take appropriate security measures by closing her border with Burundi and
Rwanda”: Speech by the Prime Minister to the Parliament of Tanzania, June 15, 1999, at 5,
on file at the library of the Oxford University Refugee Studies Centre. Tanzania’s Foreign
Minister reportedly told his Parliament that “[e]nough is enough. Let us tell the refugees

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 4.1 r ight to enter and remain in an asylum state 315

Kosovar refugees until the end of March 1999, at which time it commenced a
policy of deliberately obstructing their entry.12 Frustrated by international
funding shortfalls and the continuing arrival of hundreds of thousands of
Afghan refugees, Pakistan and Tajikistan closed their borders to Afghan
arrivals in November 2000.13 Kenya closed its border with Somalia in 2007,
citing both national security concerns and the difficulties it faced hosting more
than 200,000 refugees already within its territory.14 Uzbekistan closed its borders
after some 100,000 Kyrgyz refugees arrived over a four-day period.15 Despite
providing a haven for many refugees from Syria’s civil war, the Jordanian
government closed its borders to Palestinian refugees in 2012;16 Syrian refugees
more generally were blocked by Jordan from 2014, and by Lebanon and Turkey
starting in 2015.17 Following the warming of Cuba–United States relations in

that the time has come for them to return home, and no more should come”: “Border
Closure Triggers Debate,” Guardian, July 19, 1995. See also Long, “Review of UNHCR’s
Response,” at 25.
12
Long, “Review of UNHCR’s Response,” at 33. 13 Ibid. at 43–44.
14
“Kenyans Close Border with Somalia,” BBC, Jan. 3, 2007. “Kenya’s concerns about an
Islamist threat were combined with more general security concerns about the porous
nature of the 1,200 kilometre Kenya-Somali border and its effects on organized crime . . .
Some observers, however, consider that other factors were also at play . . . Although ethnic
Somali citizens constitute only a small percentage of Kenya’s population, some observers
believe that the concern to halt the flow of Somalis across the border is motivated by a fear
of the growing size of the ethnic Somali population in Kenya as a whole”: Long, “Review of
UNHCR’s Response,” at [314]–[316].
15
Stressing the need for humanitarian aid to cope with the numbers arriving, Deputy Prime
Minister Abdullah Aripov stated that “[t]oday we will stop accepting refugees from the
Kyrgyz side because we have no place to accommodate them and no capacity to cope with
them . . . If we have the ability to help them and to treat them of course we will open the
border”: “Kyrgyzstan Violence: Uzbekistan Closes Border to Refugees,” Telegraph, June 15,
2010.
16
“In declaring the policy, Jordanian Prime Minister Abdullah Ensour argued that
Palestinians from Syria should be allowed to return to their places of origin in Israel and
Palestine . . . The head of Jordan’s Royal Hashemite Court told Human Rights Watch in
May 2013 that the influx of Palestinians would alter Jordan’s demographic balance and
potentially lead to instability. In accordance with this policy, Jordanian security forces turn
away Palestinians from Syria at Jordan’s borders, and seek to detain and deport back to
Syria those who enter at unofficial border crossings using forged Syrian identity docu-
ments, or those who enter illegally via smuggling networks”: Human Rights Watch, “Not
Welcome: Jordan’s Treatment of Palestinians Escaping Syria,” Aug. 7, 2014.
17
Human Rights Watch, “Jordan: Syrians Blocked, Stranded in Desert,” June 3, 2015. Jordan
fully closed its last remaining point of entry in June 2016 following a car bombing that
killed six in the buffer zone that separated the two countries: R. Sweis, “Jordan Closes
Border to Syrian Refugees After Suicide Car Bomb Kills 6,” New York Times, June 21, 2016.
“Lebanon ended its open-door policy for Syrians in January 2015 when it introduced new
regulations requiring them to apply for difficult-to-obtain visas or a Lebanese sponsor
before being admitted. And then in January 2016, the Turkish government began to require
visas for Syrians arriving by land or sea, effectively cutting off Lebanon as a route to Europe.
Other options are bleak. The heavily militarised and UN-patrolled border with Israel leads

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 316 4 r i gh t s of ref ug ees physic ally present

late 2014,18 Nicaragua closed its southern border to Cuban refugees traveling
north;19 within months both Costa Rica and Panama followed suit.20
Macedonia, Serbia, Croatia, and Slovenia similarly closed their borders in a
concerted effort to stem the flow of Syrian and other refugees into northern
Europe via the “Balkan route.”21
Barriers to entry can serve much the same end as complete border closures.
During the apartheid era, South Africa erected a 3,000 volt electrified, razor-
wire fence to prevent the entry of refugees from Mozambique.22 Increased
flows of refugees to Europe in 2016 led to the erection by Hungary of razor-
wire fences along its borders, explicitly acknowledged to be a means of
preventing the arrival of refugees.23 France and the United Kingdom have

to the contested Golan Heights. Asylum seekers cannot cross. Iraq, particularly the semi-
autonomous Kurdistan region, saw an influx of Syrian refugees in 2013. The borders are
now mostly closed to asylum seekers”: E. Vio, “No Way Out: How Syrians Are Struggling to
Find an Exit,” IRIN News, Mar. 10, 2016. See also Human Rights Watch, “Iraq/Jordan/
Turkey: Syrians Blocked from Fleeing War,” July 1, 2013.
18
See The White House Office of the Press Secretary, Fact Sheet, Charting a New Course on
Cuba, Dec. 17, 2014; G. Allen, “Cuban Immigrants Flow into the US, Fearing the Rules Will
Change,” National Public Radio, Dec. 29, 2015.
19
The measure was reportedly in response to Costa Rica’s issuance of transit visas to more
than 1,000 Cubans detained at its border with Panama, a decision Nicaragua’s government
accused of “sparking a ‘humanitarian crisis’”: O. Rivas, “Nicaragua Closes Border to Cuban
Migrants, Rebukes Costa Rica,” Reuters, Nov. 15, 2015. However, the border closure also
prevented the entry of refugees arriving from Africa: R. Reichard, “Nicaragua’s Closed-
Border Policy Keeps Thousands of African Migrants Stranded,” Latina, Oct. 13, 2016.
20
“In November, Nicaragua closed its borders to Cubans, creating a backlog of islanders in
neighboring Costa Rica. That country ultimately shut its border to new arrivals in May,
creating swelling numbers in Panama. In June, Panama shut down its southern border,
forcing Colombia to address the issue”: J. Wyss, “Colombia Denies Airlift for Cuban
Migrants, to Begin Deportations,” Miami Herald, Aug. 2, 2016.
21
P. Kingsley, “Balkan Countries Shut Borders as Attention Turns to New Refugee Routes,”
Guardian, Mar. 9, 2016; see also “Europe Migrant Crisis: Balkans Route Shuts Down as
EU–Turkey Deal Fails to Deter Asylum Seekers,” ABC, Mar. 9, 2016. A year after the
closure of the Balkan route, tens of thousands of refugees still traversed this route through
Central Europe, and reports claimed that the closure had simply made the journey “more
difficult, expensive, and brutal” without truly stemming the flow: A. Dernbach and
D. Tagesspiegel, “Balkan Migration Route is ‘Not Closed,’” Euractiv, Mar. 13, 2017.
22
As of 1990, official statistics reported that ninety-four refugees had been killed trying to get
through the fence: C. Nettleton, “Across the Fence of Fire,” (1990) 78 Refugees 27, at 27–28.
But observers report that the toll was likely much higher. “On the 9th of July 1988, while on
a visit to the fence . . . a soldier on the border assured me that while patrolling the fence he
used to find between 4–5 bodies per week (in the fence) which, if true, would then mean an
average of 200 casualties per year on the southern section of the fence”: South African
Bishops’ Conference, Bureau for Refugees, “The Snake of Fire: Memorandum on the
Electric Fence between Mozambique and South Africa” (1989), at 2–3.
23
Prime Minister Viktor Orbán was unequivocal about the purpose of the razor-wire fences
along the border with Serbia, saying “[i]f it doesn’t work with nice words, we’ll have to stop
them with force, and we will do so”: “Hungary to Build Second Border Fence to Stop

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 4.1 right to enter and remain in an asylum state 317

installed a permanent concrete barrier along the port of Calais to deter asylum-
seekers from reaching Britain.24
Perhaps most alarmingly, refugees have sometimes been fired upon in order
to drive them away. Namibia imposed a dusk-to-dawn curfew – with soldiers
being ordered to shoot violators – along a 450 km stretch of the Kavango river
in late 2001. This effectively prevented Angolan refugees seeking to escape
violence in that country’s Cuando Cuban Province from being able to seek
asylum, since Angolan government and UNITA patrols could be safely avoided
only at night.25 Syrians seeking protection have been attacked by Turkish
border guards,26 African refugees have been killed by Egyptian security forces
as they attempted to cross into Israel,27 and rubber bullets and five smoke
canisters were fired by the Spanish Guardia Civil at refugees swimming to
Ceuta from Morocco in 2015.28
Interdiction efforts are at times undertaken with a view to driving refu-
gees back to their home country. The United States not only interdicted
Haitians fleeing the murderous Cedrás dictatorship on the high seas, but
forced the asylum-seekers to board its Coast Guard vessels, destroyed their
boats, and delivered the refugee claimants directly into the arms of their

Refugees,” Al Jazeera, Aug. 26, 2016. Parts of the southern border have been reinforced
with electricity: M. Dunai, “Hungary Builds New High-tech Border Fence – With Few
Migrants in Sight,” Reuters, Mar. 2, 2017. The Hungarian action was moreover not firmly
condemned by the European Union. In his letter of invitation to discuss the closure in an
EU-wide summit, EU Council President Donald Tusk wrote that “[w]e will close the
Western Balkans route, which was the main entry point for migrants with 880,000 entering
in 2015 alone and 128,000 in the first two months of this year . . . This will mean an end to
the so-called wave-through policy of migrants. It will not solve the crisis but it is a necessary
pre-condition for a European consensus”: E. Zalan, “EU Leaders to Declare Balkan Migrant
Route Closed,” EU Observer, Mar. 7, 2016.
24
A. Breeden, “Britain and France to Begin Work on Wall Near Calais to Keep Migrants from
Channel Tunnel,” New York Times, Sept. 7, 2016.
25
“Curfew Could Trap Angolan Refugees, says UNHCR,” UN Integrated Regional
Information Networks, Oct. 30, 2001.
26
As reported by Human Rights Watch, “between the first week of March and April 17
[2016] . . . Turkish border guards shot dead three asylum seekers (one man, one woman,
and a 15-year-old boy) and one smuggler; beat to death one smuggler; shot and injured
eight asylum seekers, including three children, aged 3, 5, and 9; and severely assaulted six
asylum seekers. Syrians living near the border also described the aftermaths of the
shootings and beatings, including Turkish border guards firing at them as they tried to
recover bodies at the border wall”: Human Rights Watch, “Turkey: Border Guards Kill
and Injure Asylum Seekers,” May 10, 2016.
27
Amnesty International, “Egypt: ‘Enough is Enough’, Says Amnesty on Border Killings,”
Press Release, Sept. 10, 2009; see also Human Rights Watch, “Sinai Perils: Risks to
Migrants, Refugees, and Asylum Seekers in Egypt and Israel,” Nov. 2008, at 34–38.
28
A. Senante, “Spain/Morocco: A Tragedy at the Border,” Feb. 6, 2015. The incident resulted
in the recovery of “[f]ourteen corpses, . . . five in Spanish waters and nine in Moroccan
waters”: Human Rights Watch, “Spain: A Year On, No Justice for Migrant Deaths,” Feb. 4,
2015.

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 318 4 r igh ts of r efug ee s ph ys ica lly p r es en t

persecutors.29 While justified as an effort to counter illegal smuggling,30 the

United States continues to engage in interdiction and forcible repatriation of
Haitian, Cuban, and other refugees in international waters,31 conducting
only a cursory review of protection needs onboard the interdicting ship.32
The Thai, Malaysian, and Indonesian governments similarly used their naval
forces to repel Rohingya refugees arriving by boat, many of whom were
abandoned without food or water.33 Australia also turns away refugees in
international waters before they can reach its territory, though it does not
normally return them directly to their country of origin.34 It has, however,
sometimes paid the crews of intercepted vessels to pilot their ships back to
their place of embarkation.35 Although Australia casts its increasingly

29
Tang Thanh Trai Le, International Academy of Comparative Law National Report for the
United States (1994), at 11. This was not the first attempt by the United States to exercise
authority over asylum-seekers in international waters. In 1993, three boats carrying 659
Chinese asylum-seekers were intercepted by the United States in international waters off
the coast of Mexico. Based on cursory Immigration and Naturalization Service and
UNHCR screening, one person was accepted for protection in the United States, while
the rest were handed over to Mexico for return to China: ibid. at 13.
30
“Thousands of people try to enter [the United States] illegally every year by sea, many via
highly dangerous and illegal smuggling operations . . . The Coast Guard maintains its
humanitarian responsibility to prevent the loss of life at sea, since the majority of migrant
vessels are dangerously overloaded, unseaworthy or otherwise unsafe”: US Coast Guard,
“Enforcing Immigration Laws,” www.gocoastguard.com/about-the-coast-guard/discover-
our-roles-missions/migrant-interdiction, accessed Feb. 5, 2020.
31
Response of US Coast Guard to Freedom of Information Act (FOIA) Request, June 15,
2017, https://migrantsatsea.files.wordpress.com/2017/06/2017–06-15_uscg-foia-rspns_a
mio-data-fy-1982_2017–02-01_2017-cgfo-02153.pdf, accessed Feb. 5, 2020.
32
“The Obama Administration has continued high seas interdictions and cursory shipboard
screening. Those found to have ‘credible fears’ are brought to Guantánamo where they
undergo a refugee status determination without the benefit of legal representation. The few
who are recognized as refugees are held at Guantánamo pending third country resettle-
ment; they are not considered for resettlement to the United States”: B. Frelick et al., “The
Impact of Externalization of Migration Controls on the Rights of Asylum Seekers and
Other Migrants,” Dec. 6, 2016 (Frelick, “Externalization”).
33
“In Search of a Regional Rohingya Solution,” IRIN News, July 26, 2013; Human Rights
Watch, “Southeast Asia: End Rohingya Boat Pushbacks,” May 14, 2015.
34
It was reported that over a sixteen-year period, “several thousand irregular migrants,
mostly asylum seekers from Afghanistan, Iran, Iraq, Pakistan, and Sri Lanka, have arrived
in Australia, usually travelling from Indonesia by boat with the aid of migrant smugglers”:
A. Schloenhardt and C. Craig, “Turning Back the Boats: Australia’s Interdiction of
Irregular Migrants at Sea,” (2015) 27(4) International Journal of Refugee Law 536
(Schloenhardt and Craig, “Turning Back the Boats”), at 536. For a detailed description of
Australia’s turn-back operations, see generally ibid. at 536–558.
35
“Beginning on 22 May, over the course of about nine days, Australian officials escorted the
asylum-seekers’ boat to Australian waters, paid the crew 32,000 USD, detained most of the
passengers on an Australian ship, transferred all the passengers and crew into two small
boats, and directed the crew to bring everyone back to Indonesia. The boat landed in
Indonesia on 31 May. Indonesian officials took the asylum-seekers into immigration

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 4.1 right to enter a nd remain in an asylum state 319

militarized operations as life-saving rescue missions,36 its policies are openly

oriented toward the deterrence of those who would seek protection within its
territory.37
Interdiction increasingly occurs on a bilateral or multilateral basis.38 Under
a series of agreements negotiated with the Gadhafi regime,39 Italy worked with
Libya to return boats to that country despite the well-documented human
rights violations there;40 Spain has concluded similar agreements with Senegal,
Cabo Verde, and Mauritania.41 The United States assists Mexico to intercept
refugees traveling through its territory from Central American countries.42
Funding and training were similarly provided by the US to Honduran law
enforcement officials, who began intercepting national citizens attempting to
cross the border into Guatemala.43 The extent of US involvement has been

detention, and confined the crew to police custody”: Amnesty International, “By Hook or
By Crook: Australia’s Abuse of Asylum-Seekers at Sea,” Oct. 2015, at 14.
36
R. Ryan, “Tony Abbott, Scott Morrison Announce New ‘Regional Deterrence Framework’
to Stop Asylum Seekers,” ABC News, Aug. 23, 2013.
37
Deterrence efforts include a government-sponsored video, translated into twelve lan-
guages, of the commander of Operation Sovereign Borders warning asylum-seekers that
they “will not make Australia home” and that “the Australian government has introduced
the toughest border protection measures ever”: O. Laughland, “Angus Campbell Warns
Asylum Seekers not to Travel to Australia by Boat,” Guardian, Apr. 11, 2014. It has also
published a digital graphic novel depicting refugees suffering medical problems in offshore
detention facilities: O. Laughland, “Australian Government Targets Asylum Seekers with
Graphic Campaign,” Guardian, Feb. 11, 2014.
38
Portions of the analysis that follows are drawn from T. Gammeltoft-Hansen and
J. Hathaway, “Non-refoulement in a World of Cooperative Deterrence,” (2015) 53(2)
Columbia Journal of Transnational Law 235 (Gammeltoft-Hansen and Hathaway,
“Cooperative Deterence”), at 251 ff.
39
See generally M. Giuffré, “State Responsibility Beyond Borders: What Legal Basis for Italy’s
Push-backs to Libya?” (2012) 24(4) International Journal of Refugee Law 692, at 700–703.
40
Human Rights Watch, “Pushed Back Pushed Around: Italy’s Forced Return of Boat
Migrants and Asylum Seekers, Libya’s Mistreatment of Migrants and Asylum Seekers,”
Sept. 2009, at 23–26; see also UNHCR, “Press Release: UNHCR Deeply Concerned over
Returns from Italy to Libya,” May 7, 2009.
41
N. Klein, “Assessing Australia’s Push Back the Boats Policy under International Law:
Legality and Accountability for Maritime Interceptions of Irregular Migrants,” (2014) 15
Melbourne Journal of International Law 414, at 424.
42
“Apprehensions of non-Mexican migrants along the southwestern border fell by 57 percent
between October 2014 and April 2015 compared to the same months the previous year,
from 162,700 to 70,400. As early as September 2014, when the number of Central
Americans appearing at the US border decreased, US Secretary of Homeland Security
Jeh Johnson issued a press release showing the statistical drop and saying that the US
government is ‘pleased that the Mexican government has itself taken a number of import-
ant steps to interdict the flow of illegal migrants from Central America bound for the
United States’”: Frelick, “Externalization.”
43
“In June of 2014, Honduran law enforcement units which had received funding and
training from the US State Department’s Bureau of International Narcotics and Law
Enforcement (INL) ‘launched an operation to intercept children and families attempting

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 320 4 ri g ht s of re f u g e e s p hy s i c a l l y p r e s e n t

substantial, including even the deployment of security officials as part of its

effort to stem the flow of refugee children from Central American states.44 In
defending this initiative, Secretary of Homeland Security Jeh Johnson stressed
that the “[US] message is clear to those who try to illegally cross our borders:
you will be sent back home.”45
The European Union has been especially active in establishing shared
interdiction arrangements, including agreements with key Mediterranean
and Eastern European states to combat “irregular” migration by the establish-
ment or intensification of exit controls.46 On a larger scale, the European
Union has sought to deter the arrival of refugees by permitting its Frontex
agency to disembark persons intercepted on the high seas in third countries.47
Indeed, a NATO mission was tasked with “conduct[ing] reconnaissance,
monitoring and surveillance of illegal crossings in the Aegean,” including
taking boats intercepted to Turkey without regard to non-refoulement obliga-
tions.48 And under its controversial agreement with Turkey, the European

to cross the border from Honduras into Guatemala’. Three such Honduran units appar-
ently collaborated on two tactical operations, Operation Rescue Angel and Operation
Coyote. According to reports, all three units received equipment and special training
from US Border Patrol, US Immigration and Customs Enforcement or other US migration
control and law enforcement entities”: ibid.
44
“In direct response to the summer 2014 surge in unaccompanied Central Americans
arriving at the US border, the US Department of Homeland Security (DHS) launched
Operation Coyote, which it said was ‘designed to stem the flow of illegal Central American
migration.’ The operation involved the deployment of DHS investigators to Mexico and
Central America ‘to share criminal intelligence with foreign partners and build capacity in
human smuggling and human trafficking enforcement.’ By the end of May 2015, this effort
had resulted in 1,037 criminal arrests in Mexico and the region”: ibid.
45
“Statement by Secretary of Homeland Security Jeh Johnson Before the Senate Committee
on Appropriations,” DHS Press Release, July 10, 2014.
46
A. Adepoju et al., “Europe’s Migration Agreements with Migrant Sending Countries in the
Global South: A Critical Review,” (2010) 48(3) International Migration 42; D. Lutterbeck,
“Policing Migration in the Mediterranean,” (2006) 11(1) Mediterranean Politics 59;
I. Gatev, “Border Security in the Eastern Neighbourhood: Where Biopolitics and
Geopolitics Meet,” (2008) 13 European Affairs Review 97.
47
See M. den Heijer, “How the Frontex Sea Borders Regulation Avoids the Hot Potatoes,” and
S. Keller, “New Rules on Frontex Operations at Sea,” LIBE Special, April 2014 for an
extensive critique of the deficiencies of Regulation No. 656/2014, May 15, 2014, intended to
implement the standards set by the decision of Hirsi Jamaa v. Italy, (2012) 55 EHRR 21
(ECtHR [GC], Feb. 23, 2012) into Frontex operations.
48
V. Moreno-Lax, “The Interdiction of Asylum Seekers at Sea: Law and (Mal)practice in
Europe and Australia,” Kaldor Centre for International Refugee Law Policy Brief 4, May
2017, at 3. Despite the Secretary-General’s insistence that the mission was “not about
stopping or pushing back refugee boats” (North Atlantic Treaty Organization, “NATO
Defense Ministers Agree on NATO Support to Assist with the Refugee and Migrant Crisis,”
Feb. 11, 2016), he later clarified that “[i]n case of rescue at sea of persons coming via
Turkey, they will be taken back to Turkey”: J. Stoltenberg, “NATO and Europe’s Refugee
and Migrant Crisis,” Feb. 26, 2016. Statements by British and German defense ministers

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 4.1 right to enter a nd remain in an asylum state 321

Union has similarly promised funding and other political concessions in

exchange for Turkey’s cooperation in preventing the onward transit through
its territory of persons who might otherwise seek protection in Europe.49
In some cases, the destination country may actually engage in interdiction
from within the territory of a cooperating state. Agreements have been signed
to transport third-country authorities on European ships so that they can carry
out interceptions inside the territorial waters of such states as Libya,
Mauritania, and Senegal.50 Immigration officials of the destination country
may be deployed to assist authorities in countries of transit, as evidenced by
Australia’s network of Airline Immigration Officers (ALOs) in overseas air-
ports.51 In one extreme case, the United Kingdom actually attempted interdic-
tion from within the state of origin, establishing a pre-clearance procedure at
Prague Airport under which its immigration officers screened passengers
bound for Britain deemed likely to seek refugee protection there. As was
made clear in evidence considered by the House of Lords, a significant number
of Roma seeking recognition of their refugee status were in fact deterred by this
procedure.52
Even those who manage to cross an asylum state’s border may still face
summary ejection by officials. After the Andijan uprising in 2005, Kyrgyzstan

confirm this understanding: E. MacAskill and E. Graham-Harrison, “Nato Launches Naval

Patrols to Return Migrants to Turkey,” Guardian, Feb. 11, 2016.
49
“Turkey will take any necessary measures to prevent new sea or land routes for illegal
migration opening from Turkey to the EU, and will cooperate with neighbouring states as
well as the EU to this effect”: EU–Turkey Statement, Mar. 18, 2016, www.consilium.europa
.eu/en/press/press-releases/2016/03/18/eu-turkey-statement/#, accessed Feb. 5, 2020.
50
T. Gammeltoft-Hansen, Access to Asylum: International Refugee Law and the Globalisation
of Migration Control (2011) (Gammeltoft-Hansen, Access to Asylum), at 126; D. Guilfoyle,
Shipping Interdiction and the Law of the Sea (2009) (Guilfoyle, Shipping Interdiction), at
218; J. Rijpma, “Building Borders: The Regulatory Framework for the Management of the
External Border of the European Union”, doctoral dissertation, European University
Institute, Florence, 2009. While relevant European Union guidelines make express refer-
ence to the importance of respect for the duty of non-refoulement, interdicted persons have
in practice often been returned without any assessment of their protection needs:
Gammeltoft-Hansen, Access to Asylum, at 126; see also Guilfoyle, Shipping Interdiction,
at 218.
51
“DIMIA has increased its Airline Liaison Officer network to seventeen, located at twelve
(12) key hub international airports with direct flights to Australia and/or last ports of
embarkation for inadmissible passengers to Australia: Bangkok, Denpasar, Hong Kong,
Jakarta, Kuala Lumpur, Manila, Port Moresby, Mumbai, Nadi, Seoul, Singapore, and Taipei
. . . The presence of ALOs at last ports of embarkation for travel to Australia deters the
activities of people smugglers and persons of concern”: Department of Immigration and
Multicultural and Indigenous Affairs (Australia), “Submission to the Joint Committee of
Public Accounts and Audit Review of Aviation Security in Australia,” www.aph.gov.au,
accessed Feb. 5, 2020, at [16], [19].
52
European Roma Rights Centre v. Immigration Officer at Prague Airport, [2004] UKHL 55
(UK HL, Dec. 9, 2004), at [4], [92].

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 322 4 r i g ht s of re f u g e e s p hy s i c a l l y p r e s e n t

summarily returned Uzbek refugees, some of whom were previously recog-

nized as refugees by UNHCR;53 Ukraine followed suit in 2006, refusing to
assess the well-documented risk of persecution they might face upon return.54
Ugandan authorities lured more than 1,700 Rwandans, including refugees, into
trucks under the guise of receiving food and information about how to pursue
asylum appeals; once inside, the refugees were returned to the Rwandan
border.55 In 2015, Australian naval forces towed a boat carrying asylum-
seekers back to Indonesia, despite the fact that the boat was already inside
Australian territory near Christmas Island.56 In the summer of 2017, Greek
police intercepted asylum-seeking Turks attempting to escape President
Erdoğan’s campaign of persecution against critics and opponents. They were
turned over to unidentified armed men who forcibly and violently removed
them to the Turkish side of the border where the Turkish gendarmerie was
waiting for them.57
Some such returns are in response to pressure from the country of origin
itself. For instance, Tajikistan has requested the extradition of a number of
political activists who sought protection in Russia, Moldova, and Belarus.58

53
Organization for Security and Co-operation in Europe, “OSCE Chairman Criticizes
Kyrgyzstan for Extraditions, Calls on Russian Authorities Not to Deport Refugees to
Uzbekistan,” Aug. 10, 2006. “For several years, the Uzbek government has pressured
Kyrgyzstan and other countries in the region to force Uzbek refugees and asylum seekers
to return to Uzbekistan. In some cases, the other countries have complied with extradition
or deportation proceedings. In others . . . refugees are abducted, ‘disappear,’ and reappear
in custody in Uzbekistan”: Human Rights Watch, “Uzbekistan: Abducted Refugee on
Trial,” Feb. 5, 2009.
54
N. Paton and W. Moscow, “UN Condemns Ukraine’s Return of Asylum Seekers,”
Guardian, Feb. 17, 2006. “Uzbek authorities had been pressing the Kiev government for
their return, alleging the men were involved in the uprising in Andijan last May in which
human rights advocates say hundreds of civilians were killed by Uzbek security forces . . . In
a written statement, State Department Deputy Spokesman Adam Ereli said the 10 Uzbeks
were returned without passing through the full asylum process under Ukrainian law,
including the ability to appeal their status”: “US Condemns Ukraine for Returning
Uzbek Asylum-Seekers,” Voice of America, Oct. 31, 2009.
55
“[W]itnesses to the operation said that no effort was made to distinguish among those
forced onto the trucks, and that those sent back included individuals who had gained
refugee status. The UN High Commissioner for Refugees issued a statement confirming
that ‘recognized refugees were among those returned’”: Human Rights Watch, “Uganda/
Rwanda: Halt Forced Returns of Refugees,” July 17, 2010.
56
M. Safi and B. Doherty, “Asylum Seeker Boat Towed Away After Coming within 200m of
Christmas Island,” Guardian, Nov. 20, 2015.
57
Stockholm Center for Freedom, “Greece has Adopted Illegal Border Push-Back for
Erdoğan Critics,” June 4, 2017.
58
“Tajiks fleeing persecution are wary of seeking protection in Russia and other CIS countries
given the precedent of extra-judicial extraditions [and] the close cooperation between Russian
and Tajik security services . . . In November 2014, [Tajikistan-born] Maksud Ibragimov – the
leader of the Russian-based ‘Youth of Tajikistan for Revival’ organization – was stabbed
outside his Moscow home before being arrested by Russian authorities and subsequently

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 4.1 ri g ht t o e nt e r a n d r e m a i n i n a n a s y l u m s t a t e 323

China has issued a mix of ultimatums and promises to Cambodia, Kazakhstan,

and Thailand to force them to repatriate Uighur refugees;59 similar efforts have
resulted in the return to China of Tibetans by Nepal.60 China has permitted
North Korean officials to enter its territory to repatriate refugees it deems
“defectors.”61

smuggled out of the country and back to Dushanbe in the baggage hold of an aircraft”:
Y. Matusevich, “The Quiet Tajik Refugee Crisis,” Diplomat, Aug. 11, 2016.
59
A. Wolman, “Chinese Pressure to Repatriate Asylum Seekers: An International Law
Analysis,” (2017) 29(1) International Journal of Refugee Law 84. For the most part, China
relied on diplomatic pressure to procure the forced repatriation of Uighur refugees:
M. Schiavenza, “Why Thailand Forced Uighurs to Return to China,” Atlantic, July 12,
2015. But at least in the case of the repatriations from Cambodia and Thailand, China also
sent government officials and charter planes to forcibly transport the refugees back to its
territory: “Uighurs ‘On Way to Jihad’ Returned to China in Hoods,” Reuters, July 11, 2015.
Perhaps the most notorious “smoking gun” of Chinese tactics was the approval by China
and Cambodia of fourteen investment deals, estimated at $1.2 billion, only two days after
the expulsion of twenty Uighur refugees by the latter state: S. Mydans, “After Expelling
Uighurs, Cambodia Approves Chinese Investments,” New York Times, Dec. 21, 2009.
Concessions offered to other allies included trade deals, training and financial assistance,
and diplomatic support: “China to Neighbours: Send Us Your Uighurs,” Al Jazeera, Feb. 16,
2015. Conversely, the decision by Turkey – which shares religious and linguistic ties with
the ethnic minority – not to repatriate Uighurs in its territory earned it a rebuke from
Beijing: “China Rebukes Turkey for Offer to Shelter Uighur Refugees,” Reuters, Nov. 28,
2014.
60
Human Rights Watch, “Under China’s Shadow: Mistreatment of Tibetans in Nepal,” Apr.
1, 2014, at 35–36. Such efforts are in violation of a decades-old agreement with UNHCR to
facilitate the travel of Tibetans through Nepal to India; as communicated in a 2010 US
embassy cable published by WikiLeaks, China “rewards [Nepalese forces] by providing
financial incentives to officers who hand over Tibetans attempting to exit China.” Another
cable stated, “Beijing has asked Kathmandu to step up patrols . . . and make it more difficult
for Tibetans to enter Nepal”: J. Krakauer, “Why is Nepal Cracking Down on Tibetan
Refugees?” New Yorker, Dec. 28, 2011. These and similar actions led the UN Human Rights
Committee to call on Nepal to “guarantee access to its territory to all Tibetans who may
have a valid refugee claim and refer them to the Office of the United Nations High
Commissioner for Refugees”: Human Rights Committee, Concluding Observations on
the Second Periodic Report of Nepal, UN Doc. CCPR/C/NPL/CO/2, Apr. 15, 2014, at [14].
61
“Since 1986, China has had a treaty arrangement with North Korea by which it agrees to
return ‘defectors’. Although for a number of years China informally tolerated the presence
of North Koreans, in 1999 it began returning large numbers of them, claiming that they
were not refugees but ‘food migrants.’ By 2004, China had removed at least 5,000 North
Koreans, and was reported as permitting North Korean security forces periodically to enter
China to abduct refugees”: G. Goodwin-Gill and J. McAdam, The Refugee in International
Law (2007) (Goodwin-Gill and McAdam, Refugee in International Law), at 231–232. More
recently, “abduction teams consisting of North Korean [Ministry of State Security] agents
and some Chinese Public Security officials are conducting large-scale operations in the
border areas. The abduction teams are known to be monitoring persons of interest while
staying at hotels or restaurants in the border areas and receiving information on the
movements of defectors by paying bribes to Chinese Public Security agents”: K. Young,
“MSS Abduction Units Monitor North Korean Defectors in China,” Daily NK, July 27,

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The ejection of refugees has at times been a matter of formal policy, and truly
massive in scope. Following Interior Minister Nduwimana’s declaration in 2009
that newly arriving Rwandan nationals be “rapidly expelled” from the country,
Burundian officials forcibly returned refugees to the border without regard to
their protection claims.62 When several thousand Tunisian nationals sought
protection in Italy in the wake of the Arab Spring, Italian Foreign Minister
Franco Frattini reportedly requested the EU’s assistance in forming a blockade of
Tunisian ports specifically for the purpose of “mobilis[ing] patrols and refoule-
ment.”63 The result was joint sea and air patrols with France64 and a repatriation
agreement with Tunisia.65 In 2015, Niger summarily removed thousands of
Nigerian refugees in the wake of an attack on its forces by Boko Haram.66
Later that year Venezuela’s President Maduro declared a state of emergency
and returned hundreds of Colombian refugees to their country of origin.67 The
following year, Algerian authorities forced hundreds of sub-Saharan asylum-
seekers onto buses for forcible transport across its southern border.68

2017; see also D. Hurst, “South Korea Investigating ‘Abduction’ of North Korean Defector
and TV Star,” Guardian, July 19, 2017.
62
Human Rights Watch reports that some of the returned were falsely informed that UNHCR
had determined they were not refugees: Human Rights Watch, “Burundi: Stop Deporting
Rwandan Asylum Seekers,” Dec. 2, 2009. “An official from Burundi’s refugee agency,
National Office for the Protection of Refugees and Stateless Persons (ONPRA), told
Human Rights Watch that the decision was intended to prevent further influxes of
Rwanda’s ‘peasant masses’”: ibid.
63
J. Hooper, “Italy Seeks EU Help to Cope with Tunisian Influx,” Guardian, Feb. 13, 2011.
64
R. Donadio, “France to Help Italy Block Tunisian Migrants,” New York Times, Apr. 8, 2011.
65
“On 5 April 2011, Italy signed a technical agreement with Tunisia with the objective of
strengthening border controls and facilitating the return of Tunisians who arrived to Italy.
The Italian Government issued temporary residence permits for humanitarian reasons and
travel documents to persons who arrived in Italy before 5 April 2011. For persons who
arrived at Lampedusa after this date, the repatriation process was initiated. It is, however,
not clear whether the asylum claims of all Tunisians and Libyans who arrived at Lampedusa
after 5 April 2011 were duly considered and processed by the Italian authorities”: M. Ineli-
Ciger, “Has the Temporary Protection Directive Become Obsolete? An Examination of the
Directive and its Lack of Implementation in View of the Recent Asylum Crisis in the
Mediterranean,” in C. Bauloz et al. eds., Seeking Asylum in the European Union: Selected
Protection Issues Raised by the Second Phase of the Common Asylum System 225 (2015),
at 238.
66
C. Stein, “UNHCR Concerned as Niger Forces Out Nigerians,” Voice of America, May 7,
2015; K. Sieff, “They Fled Boko Haram and Famine – And Then They Were Forced Back,”
Washington Post, June 28, 2017.
67
C. Kraul and M. Mogollon, “Venezuela Pushing Resident Colombian Nationals Back
Across the Border,” Los Angeles Times, Sept. 9, 2015. Those who were not deported
“were forced to leave after Venezuelan authorities marked their homes with a ‘D’ for
‘demolition’”: G. Gupta, “Distraught Colombians Flee Venezuela as Border Dispute
Intensifies,” Reuters, Aug. 26, 2015.
68
Human Rights Watch, “Algeria: Stop Summary Deportations,” Dec. 9, 2016. “[T]he
authorities did not screen [those detained] to ascertain their situation or refugee status,

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Ejections are sometimes carried out by non-state actors with the encour-
agement or toleration of authorities. One of the most notorious cases was the
“push-back” order issued by the Thai Ministry of the Interior in 1988. The
government rejected offers of support from the United States to build and
operate camps to receive Vietnamese refugees, opting instead to deputize
fishermen in Khlong Yai to prevent entry of any boats which might be carrying
refugees – an order interpreted by fishermen “as a mandate to abuse defence-
less boat people. Smugglers, fearing prosecution or vigilante attack, dumped
their human cargo into the gulf.”69 When Liberian and Sierra Leonean refugees
fled to Guinea in late 2000, President Lansana Conté encouraged citizens to
form militia groups70 with a view to forcing refugees to “go home.”71 Malaysia
deputized a volunteer corps in 2005 to apprehend undocumented persons,
with no effort made to distinguish those with claims to protection from
migrants generally,72 while Hungary more recently conscripted over 1,000
“border hunters”73 specifically for the purpose of turning back refugees arriv-
ing at the border.

provide information about their rights, or allow them to contact the United Nations High
Commissioner for Refugees or consular representatives of their country of origin”: ibid.
69
A. Helton, “Asylum and Refugee Protection in Thailand,” (1989) 1(1) International Journal
of Refugee Law 20 (Helton, “Thailand”), at 27–30.
70
D. Farah, “For Refugees, Hazardous Haven in Guinea,” Washington Post, Nov. 6, 2000, at
A-24.
71
“Over 400 refugees arrived in Monrovia on 12 October following a two-day sea voyage.
Many complained of being beaten and raped by Guineans”: (2000) 80 JRS Dispatches (Oct.
16, 2000).
72
“In 2005, the government transformed a volunteer self-defense corps, created in the 1960s
to guard against Communists, into a strike force deputized to hunt down illegal immi-
grants. This force, called Rela, now numbers nearly half a million mostly untrained
volunteers – more than the total number of Malaysia’s military and police in this nation
of 27 million. Its leaders are armed and have the right to enter a home or search a person on
the street without a warrant. By an official count, its uniformed volunteers carry out 30 to
40 raids a night”: S. Mydans, “A Growing Source of Fear for Migrants in Malaysia,” New
York Times, Dec. 10, 2007. Human Rights Watch reports that, in carrying out their duties,
Rela members “have failed to distinguish or deliberately ignored the distinctions between
undocumented migrants, and refugees and asylum seekers”: Human Rights Watch,
“Malaysia: Disband Abusive Volunteer Corps,” May 9, 2007.
73
“Recruits, who must be between 18 and 55 years old, are given training similar to police and
learn other skills such as guarding a border fence, detaining large groups of migrants and
tracking their paths . . . Like police officers, border hunters will carry pistols with live
ammunition, batons, pepper spray and handcuffs, and will also be equipped with night-
vision goggles if needed”: K. Than, “Hungary to Arm New ‘Border Hunters’ after Six-
Month Crash Course,” Reuters, Mar. 9, 2017. “There is no lack of interest in joining the new
‘border-hunters’ unit. But police officers admit privately that the name is part of the
problem, as it attracts the wrong kind of applicant. Only 1,000 of the 2,700 people who
applied from last August to January this year were accepted. Nearly 400 failed the
psychology test”: N. Thorpe, “Hungary Hits Snags with Squad to Stop Migrants,” BBC,
Feb. 15, 2017.

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Beyond rejection at the border or being physically forced back to their

country of origin, refugees may be subject to removal when refused access
to a procedure to verify their refugee status. For example, Japan declined to
consider the refugee claims of Chinese pro-democracy dissidents in the imme-
diate post-Tiananmen era, and forced many of them back to China.74
Malaysian police have waited outside the local UNHCR office to arrest and
deport Indonesians waiting to make appointments to have their refugee status
claims processed.75 Spain has summarily classified refugees attempting to enter
Ceuta and Melilla as “illegal immigrants” subject to removal, giving them no
opportunity to apply for asylum.76 Saudi Arabia has returned thousands of
Somalis without affording them an opportunity to claim refugee status and
denies UNHCR access to persons detained.77 Israel delays the processing of
protection claims by Eritrean and Sudanese nationals and recognizes nearly
none of them as refugees, hoping effectively to discourage claimants suffi-
ciently that they will leave the country.78
Refugees may also face removal because of practical weaknesses in the
operation of asylum systems. The system itself may simply be unsound, as is
the case in the United States where border guards play an often decisive role in
the registration and adjudication of Central American asylum claims,79 or in
74
Asia Watch, “Japan: Harassment of Chinese Dissidents” (1990), at 1. “In a number of cases,
the authorities refused to renew visas which were about to expire and individual Chinese
students were told to return home, including some who had played a prominent part in the
pro-democracy movement and who were clearly at risk of serious human rights violations
in China”: Amnesty International, “Japan: Inadequate Protection for Refugees and Asylum
Seekers” (1993), at 8.
75
“The UN High Commissioner for Refugees (UNHCR) has designated all Acehnese in
Malaysia as ‘persons of concern’ and is issuing protection letters for those who are able to
register at their Kuala Lumpur office. However, in August 2003 Malaysian police arrested
almost 250 asylum seekers, many of them Acehnese, outside the UNHCR office in Kuala
Lumpur. Fearing arrest and deportation, Acehnese refugees have since been reluctant to
approach the UN agency to make an asylum claim or acquire a protection letter”: Human
Rights Watch, “Malaysia: Stop Deportations of Acehnese Refugees,” Jan. 1, 2004.
76
“Foreigners detected while ‘illegally crossing’ the Spanish–Moroccan border . . . may be
automatically rejected to prevent their illegal entry into Spain, without going through the
legal procedures, thus not being properly identified, not having the right to get legal advice
or apply for asylum . . . [I]n practice it is impossible to respect human rights with these so
called ‘fast-track repatriations’ (devoluciones en caliente). By not identifying the people
crossing the border and proceeding to their rejection and return to Morocco, Spain is
failing to fulfill its duties, as these people might be potential asylum applicants, victims of
human trafficking or minors, whose lives might be at risk if returned to Morocco”: Issues
Without Borders, “Summary of the National Legislation on Refugees,” Sept. 21, 2015; see
also Amnesty International, “Spain: Two-pronged Assault Targets Rights and Freedoms of
Spanish Citizens, Migrants and Refugees,” Mar. 26, 2015.
77
Human Rights Watch, “Saudi Arabia: 12,000 Somalis Expelled,” Feb. 18, 2014.
78
I. Lior, “Nearly 15,000 Asylum Requests Still Pending – Israel yet to Approve Single One in
2016,” Haaretz, July 21, 2016.
79
C. Long, “The Other Refugee Crisis, from Central America to the US,” Sept. 21, 2015.

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 4.1 right to enter and remai n in an asylum state 327

South Africa where officers sometimes demand bribes in exchange for swifter
service or documentation.80 The risk may also follow from failure of even a
carefully designed procedure to take notice of the most accurate human rights
data. In January 2002, for example, the UK government summarily deported
members of opposition parties to Zimbabwe, relying on dated Home Office
risk assessments rather than on updated Foreign Office warnings of a serious
deterioration of conditions there.81
An especially serious operational risk can occur when refugees are forced to
undergo extraterritorial processing in countries without the experience or
resources reliably to assess refugee status and consequent duties of protection.
As practiced by the United States with Jamaica and the Turks and Caicos
Islands during the 1990s82 and more recently by Australia with Nauru and
Papua New Guinea,83 such schemes entail the transfer of refugees to a third
state that assumes primary or shared control of the status determination
procedure.
Refugees may be forcibly returned even after their status is formally
recognized. An especially pernicious tactic is the promotion of “voluntary
repatriation” in circumstances that amount to a thinly disguised withdrawal
of protection from refugees. In August 2002, for example, Rwanda not only
allowed members of a Congolese rebel group backed by it to meet with
refugees from the Democratic Republic of Congo in order to promote their
return home, but advised the refugees that both camp services and the offer of

80
V. Talane, “Corrupt Officials Make Life Tough for Refugees,” Corruption Watch, June 27,
2014. “Almost a third of asylum seekers and refugees have to pay bribes for correct
documentation violating the Refugees Act that stipulates that they are not required to
pay any fees for documentation . . . Corruption is most pervasive at the office in
Marabastad, Pretoria with over two-thirds of applicants experiencing graft. If you cannot
pay, rejection is almost guaranteed. Over half of respondents at Marabastad experienced
corruption while standing in queues and a third were denied entry to the office because they
could not pay bribes”: G. Parker, “Corruption Hurts Refugees in South Africa,” Voice of
America, July 28, 2015.
81
“They were waiting for him at the airport, just as he feared. Gerald Mukwetiwa was still
recovering from the eight-hour flight to Harare when British immigration officers handed
him over to their Zimbabwean counterparts. But the airport officials were not what they
seemed. They were members of Zimbabwe’s feared Central Intelligence Organisation . . .
[A]n Observer investigation has discovered that scores of members of opposition parties in
Zimbabwe face being sent back to President Mugabe’s regime with little regard for their
safety”: P. Harris and M. Bright, “Crisis in Zimbabwe: Special Investigation: They Flee Here
for Safety but are Sent Back to Face Death,” Observer (London), Jan. 13, 2002, at 8.
82
A. Francis, “Bringing Protection Home: Healing the Schism between International
Obligations and National Safeguards Created by Extraterritorial Processing,” (2008)
20(2) International Journal of Refugee Law 273 (Francis, “Bringing Protection Home”),
at 285–286.
83
A. Liguori, “Some Observations on the Legal Responsibility of States and International
Organizations in the Extraterritorial Processing of Asylum Claims,” (2015) 25 Italian
Yearbook of International Law 135 (Liguori, “Extraterritorial Processing”), at 153.

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 328 4 r i g ht s o f re f u g e e s p hy s i c a l l y p r e s e n t

transportation home would soon be withdrawn from those who did not
choose to repatriate.84 Roma refugees from Kosovo similarly felt compelled
to leave Macedonia after being denied basic sanitary facilities and services
there.85 Refugees International determined that Bangladesh, working in
concert with UNHCR, was promoting the repatriation of Rohingya refugees
from Bangladesh to Burma by “creat[ing] an environment in which protec-
tion for the Rohingya is virtually untenable . . . Methods of coercion . . .
include a reduction in certain basic entitlements, including food, withholding
of medical services or pharmaceuticals, forced relocation within camps to
poorer housing, beatings, and, most commonly, threats of and actual jail
sentences.”86 In seeking to persuade Afghan refugees to return to their
country, Pakistani officials restricted the renewal of identification docu-
ments, extorted those whose documents had expired,87 and closed Afghan
refugee schools.88 In 2011, Egyptian guards at the al-Shalal prison “beat 118
men, including 40 who already have refugee status, to force them to sign
papers for their ‘voluntary’ return to Eritrea.”89 At times, the pressure to
“choose” to go home may be less blunt, but nonetheless real. UNHCR has, for
example, offered a $400 incentive to persuade Afghan refugees to go home
from Pakistan.90 Australia offered Rohingya, Somali, and Sudanese refugees
detained at Manus Island the option to return home in exchange for a
payment of up to A$10,000 – accompanied by a warning from Papua New

84
US Committee for Refugees, “The Forced Repatriation of Congolese Refugees Living in
Rwanda,” Nov. 13, 2002. See also “Opening Statement by Mr. Ruud Lubbers, United Nations
High Commissioner for Refugees, at the Fifty-Third Session of the Executive Committee of the
High Commissioner’s Programme,” Sept. 30, 2002, at 4: “In Rwanda I remain concerned about
the imposed return of Congolese refugees, and I have taken this up with the Rwandan
government.”
85
(2003) 133 JRS Dispatches (May 30, 2003).
86
Refugees International, “Lack of Protection Plagues Burma’s Rohingya Refugees in
Bangladesh,” May 30, 2003.
87
Human Rights Watch, “Pakistan Coercion, UN Complicity: The Mass Forced Return of
Afghan Refugees,” Feb. 13, 2017, at 3–4. “Before 2016, Pakistan renewed Afghans’ refugee
status for between 18 months and three years at a time. By extending refugee status for only
12 months or less after that time, and by refusing to re-issue refugees’ expired cards after
December 2015, Pakistani authorities increased the pressure to return . . . Almost every
Afghan interviewed for this report described how beginning in July 2016, Pakistani police
repeatedly stopped and extorted from them between 100 and 3,000 rupees [US$1–US$30]
each time. In many cases the police used the fact that refugees’ Proof of Registration (PoR)
cards had expired at the end of December 2015 as an excuse to demand money and
threatened to confiscate their cards or deport them if they didn’t pay”: ibid. at 4, 15.
88
Ibid. at 24–25.
89
Human Rights Watch, “Egypt: Don’t Deport Eritreans,” Nov. 15, 2011.
90
“For many, the June 2016 decision of UNHCR – under significant pressure from Pakistan
seeking increased repatriation rates – to double its cash grant to returnees from US$200 to US
$400 per person was a critical factor in persuading them to escape Pakistan’s abuses”: ibid. at 4.

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 4.1 r ight to enter and remain in an asylum state 329

Guinea that “police would be called in to force ‘the movement of those who
refuse to cooperate.’”91
The most sophisticated means of denying protection, however, is to avoid
the arrival of refugees altogether by the adoption of relatively invisible non-
entrée policies.92 In essence, the goal of these mechanisms is to implement
legal norms which have the effect of preventing refugees from even reaching
the point of being able to present their case for protection to asylum state
authorities.
The classic mechanism of non-entrée is to impose a visa requirement on the
nationals of genuine refugee-producing countries, enforced by sanctions against
any carrier that agrees to transport a person without a visa. Nationals of countries
likely to produce refugees have long been required to obtain a visa before
boarding a plane or otherwise coming to Canada.93 Because a visa will not be
issued for the purpose of seeking refugee protection, only those who lie about
their intentions or secure forged documentation are able successfully to satisfy the
inquiries of the transportation company employees who effectively administer
Canadian law abroad.94 In 2015, Ecuador reversed its policy of not requiring visas
from Cuban nationals “in order to discourage the flow of people seeking to reach
the United States.”95 Lebanon similarly sought to deter the arrival of Syrians by
imposing a visa requirement, albeit only after it became host to more than 1

91
B. Doherty, “‘It’s Simply Coercion’: Manus Island, Immigration Policy and the Men with
no Future,” Guardian, Sept. 28, 2016. Incredibly, Australia repeated the offer to Rohingya
refugees in September 2017 in the midst of a widely reported series of attacks on the
Rohingya by Burmese authorities: O. Holmes and B. Doherty, “Australia Offers to Pay
Rohingya Refugees to Return to Myanmar,” Guardian, Sept. 18, 2017.
92
Non-entrée is a term coined to describe the array of legalized policies adopted by states to
stymie access by refugees to their territories. See J. Hathaway, “The Emerging Politics of
Non-entrée,” (1992) 91 Refugees 40 (Hathaway, “Non-entrée”).
93
“Imposing visa requirements on countries that generate refugees often results in substantial
drops in asylum claims. In July 2009, for example, the Canadian government imposed visa
requirements on Mexico and the Czech Republic, and was candid in its position that
imposing such requirements would help stem refugee flows from these source countries.
This move was widely criticized as an attempt to create ‘obstacles in the path of people who
genuinely have a fear of persecution in their country of origin.’ Canada’s imposition of visa
requirements on the Czech Republic was also criticized as an attempt to dissuade Roma
peoples of Czech nationality from seeking asylum in Canada, despite evidence of anti-
Roma persecution in the Czech Republic. These 2009 visa requirements triggered a sharp
decline in the number of asylum claims made from Mexico and the Czech Republic, so
much so that Canada dropped in UNHCR’s ranking of top refugee receiving countries”:
E. Arbel and A. Brenner, “Bordering on Failure: Canada–US Border Policy and the Politics
of Refugee Exclusion,” Nov. 2013, at 40–41.
94
See generally E. Feller, “Carrier Sanctions and International Law,” (1989) 1(1) International
Journal of Refugee Law 48 (Feller, “Sanctions”); and Danish Refugee Council and Danish
Center of Human Rights, “The Effect of Carrier Sanctions on the Asylum System” (1991).
95
J. Hamre, “Cubans Protest New Ecuador Visa Regulation,” Reuters, Nov. 27, 2015.

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 330 4 ri g ht s o f re f u g e e s p hy s i c a l l y p r e s e n t

million Syrian refugees.96 The European Union has adopted a sweeping visa
control policy, with member states required to impose visas on the nationals
of over 100 countries – including, for example, such refugee-producing
countries as Afghanistan, Iraq, Somalia, Sudan, and Syria.97
A second mechanism of non-entrée is the deportation chain that can be set
in motion by interstate arrangements to share responsibility for refugee
protection. The “first country of arrival” principle purports to collectivize
responsibility to protect refugees among a select group of participating states.
The most important harmonization regime thus far established – that predi-
cated on the Dublin Regulation in Europe98 – generally assigns protective
responsibility to the first partner state in which a given refugee arrives,99 as
does the agreement between the United States and Canada.100 The risk of
refoulement arises because these agreements assume, rather than require an
investigation of, the partner state’s ability and willingness to protect refu-
gees.101 While the Court of Justice of the European Union has recently
insisted that refugees may not be returned to a foreseeable risk of refoule-
ment,102 its foundational jurisprudence requires evidence of a “systemic
deficiency”103 to forestall removal – clearly leaving open the risk of

96
According to a spokesman for the General Security Directorate, the new rules were
intended as “enhanced measures to exert ‘control over Syrian refugee activities in
Lebanon’”: H. Haylor and S. Haidamous, “Syrian Refugees become Less Welcome in
Lebanon, as New Entry Rules take Effect,” Washington Post, Jan. 5, 2015.
97
EU Reg. 2018/1806 of the European Parliament and of the Council listing the third
countries whose nationals must be in possession of visas when crossing the external borders
and those whose nationals are exempt from that requirement (Nov. 14, 2018), at Annex I.
98
European Council Reg. EC 604/2013, June 26, 2013 (Dublin Regulation (recast)).
99
This is subject to several criteria, such as prior authorization to travel or issues of family
unity, provided for in the Regulation: Dublin Regulation (recast), at Arts. 7–15.
100
Agreement between the Government of Canada and the Government of the United States
for Cooperation in the Examination of Refugee Status Claims from Nationals of Third
Countries, adopted Dec. 5, 2002, entered into force Dec. 29, 2004, US State Dept. No. 05-
35, 2004 WL 3269854.
101
The Inter-American Commission on Human Rights found Canada to be in breach of the
duty of non-refoulement for having enacted a “direct back” process requiring asylum appli-
cants entering Canada via the United States to go back to the United States to await refugee
hearings in Canada. The Commission found that the process impermissibly presumed safety
in the United States rather than being based on an individualized risk assessment: John Doe et
al. v. Canada, Case 712.586, Report 78/11 (IAComHR, July 21, 2011).
102
CK et al. v. Republic of Slovenia, Dec. No. C-578/16 PPU (CJEU, Feb. 16, 2017), at [44].
103
NS v. Secretary of State for the Home Department, Dec. No. C-411/10 (CJEU, Dec. 21, 2011). In
this decision, the Court observed – seemingly contrary to its own position taken in CK et al. v.
Republic of Slovenia, Dec. No. C-578/16 PPU (CJEU, Feb. 16, 2017), at [44] – that “[t]he . . .
argument that . . . only the existence of systemic flaws in the Member State responsible is
capable of affecting the obligation to transfer an asylum seeker to that Member State is
unfounded”: ibid. at [91]. These cases are discussed in more detail at note 314.

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 4.1 r ight to enter and remain in an asylum state 331

individuated refoulement.104 Worse still, the Canadian Federal Court of

Appeal refused to invalidate the partnership agreement with the United
States despite the fact that multiple breaches of international law, includ-
ing several posing the risk of refoulement, had been identified at the trial
court level.105
The “first country of arrival” principle has sometimes been informally
invoked even in the less developed world. For example, persons seeking asylum
in Kenya were told by UNHCR to go back to Uganda or Tanzania, through
which some had already passed.106 Ugandan officials, in turn, refused to
consider the claims of Rwandan refugees previously present in Tanzania,
even as Tanzania was threatening the refugees with forced repatriation to
Rwanda.107 South Africa ordered its border officials to turn back or detain
refugees who traveled to that country via safe neighboring countries. Though

104
As the UK Supreme Court pointedly observed, “[t]he presumption [of partner state
respect for refugee rights] should not operate to stifle the presentation and
consideration of evidence . . . [regarding] the consequences of enforced return.
Nor should it be required that, in order to rebut it, it must be shown, as a first
and indispensable requirement, that there is a systemic deficiency in the procedure
and reception conditions provided for the asylum seeker”: R (EM, Eritrea) v.
Secretary of State for the Home Department, [2014] UKSC 12 (UK SC, Feb. 19,
2014), at [41].
105
The Queen v. Canadian Council for Refugees, [2008] FCA 229 (Can. FCA, June 27,
2008), reversing Canadian Council for Refugees et al. v. The Queen, [2007] FC 1262
(Can. FC, Nov. 29, 2007). The Federal Court of Appeal avoided substantive engage-
ment with the allegations, basing its decision on the language of the enabling statute
that required only that the Canadian government have considered the risk of
refoulement before designating a state as a partner state, not that it have satisfied
itself that in fact there was not a risk of refoulement. The US “asylum” system
unlawfully circumscribes the beneficiary class by inter alia imposing a one-year
cutoff for protection, barring recognition of those deemed to have failed to avail
themselves of a protection opportunity before arriving in the US, requiring evidence
of direct intent to persecute, and setting a sweeping category of excluded persons
(beyond what Art. 1(F) of the Convention authorizes). The US “withholding” system
does not respect the “well-founded fear” test for refugee status, but requires instead
evidence of a “clear probability” of persecution. In the result, even the combination
of the two systems does not comply with US responsibilities to grant all persons who
are in fact Convention refugees protection against refoulement (much less the full
range of rights set by Arts. 2–34 of the Convention). See generally D. Anker, The
Law of Asylum in the United States (2018).
106
(1999) 53 JRS Dispatches (July 16, 1999).
107
“Ethnic Rwandese asylum-seekers entering [Uganda] from Tanzania are no longer recog-
nised by this government, Minister for Disaster Preparedness Brg. Moses Ali has said. ‘On
advice of UNHCR, the government stopped recognising Rwandese asylum-seekers from
Tanzania since they were already accessing international protection,’ Ali said”:
“Government No Longer Recognises Rwanda Asylum-Seekers,” Monitor (Kampala),
Oct. 7, 2002.

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 332 4 r i gh t s of ref ug ees physic ally present

that policy was ordered withdrawn when challenged in the High Court,108 it
has continued to be applied in practice.109
A related concept is the notion of a “safe third country,” pursuant to which
a person claiming refugee status may be sent to some other country deemed
able and willing to protect refugees. The proliferation of various types of
readmission arrangements, whether formal or ad hoc,110 has facilitated the
(often summary) return of third-country nationals to the states through which
they have transited, many times without regard to rights obligations or track
records in the receiving countries.111 The European Union, for example, felt it
appropriate to enter into an arrangement to force refugees back to Turkey – a
country that has no legal obligation to protect modern refugees, and which
itself has agreements to send refugees back to such countries as Syria, Pakistan,
and Nigeria.112 Italy brokered readmission with several North African states in

108
“Department of Home Affairs Backs Down on Asylum Policy,” Business Day, May 10, 2001.
See e.g. Katambayi and Lawyers for Human Rights v. Minister of Home Affairs et al., Dec.
No. 02/5312 (SA HC, Witwatersrand Local Division, Mar. 24, 2002), in which the court
intervened to stop the removal of a refugee claimant in transit at Johannesburg Airport,
ordering the government “to allow [the applicant] to apply for asylum in South Africa.”
109
“In the following years, the Department has made repeated efforts to introduce the
concepts, often referring to them as principles of international law, and, in practice,
officials have used the concepts as a means to deny asylum seekers physical access at
border posts and [Refugee Reception Centres], as well as a means to reject asylum seekers’
claims to refugee status in status determination hearings”: C. Johnson and S. Carciotto,
“The State of the Asylum System in South Africa”, in M. O’Sullivan and D. Stevens eds.,
States, the Law and Access to Refugee Protection: Fortresses and Fairness 167 (2017), at
176–177.
110
More than 300 bilateral agreements linked to readmission have been concluded by
European nations alone: J.-P. Cassarino, “A Reappraisal of the EU’s Expanding
Readmission System,” (2014) 49(4) The International Spectator 130. Not all such agree-
ments are formalized or instituted at a state level; instead, readmission policies are often
given effect through police cooperation agreements, administrative arrangements, partner-
ship agreements, and exchanges of letters and memoranda of understanding. As Mariagiulia
Giuffré notes, these latter instruments “do not generally contain the same safeguards of
readmission agreements, and are also not subjected to public scrutiny and monitoring”:
M. Giuffré, “Readmission Agreements and Refugee Rights: From a Critique to a Proposal,”
(2013) 32(3) Refugee Survey Quarterly 79 (Giuffré, “Readmission Agreements”), at 92.
111
Such pacts also risk the direct return of refugees to their countries of origin. See e.g. “UN
Envoy Says Russia–North Korea Deportation Pact puts Refugees at Risk,” Reuters, Nov.
26, 2015; J. Ryall, “After 20 Years On Run in Russia, North Korean Defector Facing
Repatriation and ‘Execution,’” Telegraph, Feb. 7, 2017.
112
M. Rais, “European Union Readmission Agreements,” (Jan. 2016) Forced Migration
Review. Further countries for which Turkey has sought readmission agreements report-
edly include Afghanistan, Algeria, Bangladesh, Burma, Cameroon, Eritrea, Ghana, Iran,
Iraq, Morocco, the Republic of Congo, Somalia, Sudan, and Tunisia: E. Kart, “Turkey
Seeks Readmission Deals with Iraq, Iran,” Hürriyet Daily News, Apr. 12, 2016.
Interestingly, to qualify as a “safe third country” under EU law there must be a determin-
ation that the destination country is prepared to consider the applicant’s refugee claim,
and will not expose the claimant to persecution, (generalized) risk of torture or related ill-

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 4.1 right to enter a nd remain in an asylum state 333

the wake of the Arab Spring.113 Australia has been especially aggressive in
entering into such arrangements with neighboring countries.114 Those arriving
by boat are relocated to Nauru and Papua New Guinea for external processing
of claims,115 forcing refugees already under Australian jurisdiction to accept
the increased risk of refoulement that arises from extreme deficiencies in these
partner states’ asylum procedures.116 Notably, the Australian variant of the
“safe third country” rule, in contrast to that adopted by the European Union,
requires no more than a bare bones assessment of the actual protection
available in the destination country;117 nor is the destination country limited

treatment, or refoulement – a standard that Turkey would seem unable to meet: Council
Directive on common procedures for granting and withdrawing international protection
(recast), Doc. 2013/32/EU, (June 26, 2013) (EU Procedures Directive (recast)), at Art.
38(1).
113
Thousands of Tunisian and Egyptian nationals were hastily repatriated in 2011 pursuant
to readmission agreements with Italy: Giuffré, “Readmission Agreements,” at 90. See also
Y. Maccanico, “The EU’s Self-Interested Response to Unrest in North Africa: The
Meaning of Treaties and Readmission Agreements between Italy and North African
States,” Statewatch Analysis, Dec. 2011.
114
Such arrangements are often hastily reached and lack adequate safeguards. Agreements
with the governments of Nauru and Papua New Guinea were criticized for the rushed
fashion in which they were formed, which left little time for proper consideration or public
comment, and for the inability of Australia to ensure the obligations were met under the
1951 Refugee Convention as well as other human rights treaties to which the receiving
states were not party: A. Warbrooke, “Australia’s ‘Pacific Solution’: Issues for the Pacific
Islands,” (2014) 1(2) Asia and the Pacific Policy Studies 337, at 338, 339–340. The
Australia–Malaysia agreement was also criticized and ultimately rejected for its vague
and non-binding nature, the inability of affected individuals to submit complaints to the
monitoring bodies for treaties such as the International Covenant on Civil and Political
Rights (to which Australia, but not Malaysia, was party), and the lack of means of
enforcing the parties’ obligations under the arrangement: T. Wood and J. McAdam,
“Australian Asylum Policy All at Sea: An Analysis of Plaintiff M70/2011 v. Minister for
Immigration and Citizenship and the Australia–Malaysia Arrangement,” (2012) 61(1)
International and Comparative Law Quarterly 274 (Wood and McAdam, “Australia–
Malaysia Arrangement”), at 291–293.
115
“Australia experimented with extraterritorial processing during two time periods, from
2001 to 2008 and again from 2012 onward, by outsourcing to Nauru and Papua New
Guinea the examination of asylum claims of individuals, intercepting them before they
reached Australia or sending them to offshore centres after initial identity and health
screening in Australia . . . In most public interviews, Australian Government representa-
tives denied any responsibility, affirming that ‘[the] regional processing centres are a
matter for the Nauru and Papua New Guinea governments as these centres are located in
their sovereign territory’, and arguing that Australia ‘does not have the “very high level” of
effective control necessary to establish its jurisdiction over asylum seekers and refugees
offshore’”: Liguori, “Extraterritorial Processing,” at 153.
116
See e.g. Committee Against Torture, “Concluding Observations on the fourth and fifth
periodic reports of Australia,” UN Doc. CAT/C/AUS/4–5, Nov. 26, 2014, at [17].
117
Australia sends intercepted refugees to “regional processing countries” pursuant to
Section 198AB(1) of the Migration Act, which provides the authority to designate par-
ticular countries as such if “the Minister thinks that it is in the national interest” to do so.

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 334 4 r i gh t s of ref ug ees physic ally present

to a state through which the applicant passed en route to Australia. It has been
suggested that this inattention to risk is intentional, in that the Australian
government “relied on Malaysia being perceived as an inhospitable host
country for asylum seekers . . . ‘to make sure that [it] sent the maximum
message of deterrence.’”118 The United States has recently emulated the
Australian model, claiming the right to force refugee claimants to have their
claims adjudicated in any of El Salvador, Guatemala, or Honduras, even if they
have never passed through the designated country.119
A third variant of non-entrée is the designation of safe countries of origin,
claimants from which are entitled to less than the usual consideration for refugee
status. Canada’s “designated country of origin” – struck down by the Federal
Court in 2016120 – gave truncated procedural rights to the nationals of some
forty-two “designated countries of origin,” including all but one EU member
state as well as the United States and Mexico.121 Other countries presume safety
but with specific carve-outs; for example, the United Kingdom designates
Gambia, Ghana, Kenya, Liberia, Malawi, Mali, Nigeria, and Sierra Leone as
“safe” for men, but not for women.122 The safe country of origin principle has
been codified in European Union law, albeit with an explicit safeguard

In considering this interest, the Minister need only be satisfied that the country will not
violate the duty of non-refoulement and that the applicant will be permitted the opportun-
ity to prove his or her refugee status: Migration Act 1958, s. 198AB(1). As interpreted by
the High Court, the designation of a country is “largely a political question,” the resolution
of which may be determined by reference to assurances provided by the receiving
government and which do not require further evaluation as to whether such assurances
would be fulfilled: see Plaintiff S156/2013 v. Minister for Immigration and Border
Protection, [2014] HCA 22 (Aus. HC, June 18, 2014), at [40], [46]. For a historical account,
see also Francis, “Bringing Protection Home,” at 286–290.
118
Wood and McAdam, “Australia–Malaysia Arrangement,” at 274.
119
M. Hackman and J. Montes, “Asylum Seekers at US Southern Border Can Now Be Sent to
Guatemala Instead,” Wall Street Journal, Nov. 19, 2019.
120
YZ v. Canada, [2016] 1 FCR 575, 2015 FC 892 (Can. FC, July 23, 2015). See text at note 352.
121
Immigration and Refugee Protection Act, SC 2001, s. 109.1(2)(a); see www.canada.ca/en/
immigration-refugees-citizenship/services/refugees/claim-protection-inside-canada/
apply/designated-countries-policy.html, accessed Feb. 5, 2020, for the historical list of
“designated countries of origin.” As originally conceived, the designation of a country as a
DCO entailed “a shortened timeframe for submitting evidence; no right to appeal a
negative decision, and no right to remain in Canada while the Federal Court processed
a request for judicial review of an unreasonable/unjust IRB decision; a faster timeline for a
removal order after a negative decision; and no access to a Pre-Removal Risk Assessment
(PRRA) for the first 36 months after a negative decision”: C. Costello, “Safe Country? Says
Who?” (2016) 28(4) International Journal of Refugee Law 601 (Costello, “Safe Country?”),
at 618.
122
Refugee Council, “Safe Country of Origin: United Kingdom,” Asylum Information
Database, available at www.asylumineurope.org/reports/country/united-kingdom/asy
lum-procedure/safe-country-concepts/safe-country-origin#footnote3_8kcrett, accessed
Feb. 5, 2020. The UK previously designated Jamaica as “safe” except for lesbian or gay
persons; this provision was struck down after a successful judicial challenge: ibid.

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 4.1 right to enter a nd remain in an asylum state 335

provision:123 asylum states are entitled to assume that all nationals of listed
countries are not refugees, though applicants must be allowed to attempt to
rebut the presumption that their claims are unfounded in the context of an
accelerated procedure.124 But the safe country of origin rule applies as among
European Union states in a significantly more aggressive way, since European
Union law explicitly disqualifies all citizens of member states from recognition as
refugees.125 Thus, for example, at-risk members of the Roma community in EU
states have no effective means of securing refugee status within Europe.126 Indeed,
even those fleeing most states neighboring the EU – including for example
Belarus and Russia – may be denied access to EU state asylum systems on the
basis of what has come to be known as the “super safe third country” system.127

123
A high-profile decision by Sweden in 2001 to refuse protection to a US citizen on the grounds
that the US was a “safe country” may have accounted for some of the pressure to constrain the
applicability of the principle. The applicant was a justice of the peace who had campaigned to
make US law enforcement officials more accountable, leading to vicious reprisals which
authorities were apparently powerless either to prevent or redress. The Swedish decision
that the claim was “manifestly unfounded” because the United States is “an internationally
recognized democracy” was criticized by Members of the European Parliament, who observed
“that his case raises serious questions about the EU’s proposed common asylum policy”:
J. Henley, “Swedes Face Call for Asylum U-Turn,” Guardian, June 21, 2001, at 14.
124
EU Procedures Directive (recast), at Art. 37.
125
“‘Refugee’ means a third-country national or a stateless person who fulfils the require-
ments of Article 2(d) of Directive 2011/95/EU [emphasis added]”: EU Procedures
Directive (recast), at Art. 2(g). Moreover, under the Protocol on Asylum for Nationals
of Member States of the European Union, annexed to the Treaty establishing the European
Community, OJ 1997 C340/1, at 103 (Nov. 10, 1997), it is agreed that “Member States shall
be regarded as constituting safe countries of origin in respect of each other for all legal and
practical purposes in relation to asylum matters.” It is further agreed that asylum applica-
tions are only receivable from a European national where the European Council is engaged
in action against the country of origin, where the country of origin has derogated from the
European Convention on Human Rights, or with the exceptional consent of the destin-
ation country – though the European Council must be informed of such a decision, and
the claim must in any event be treated as “manifestly unfounded.” See discussion of this
discriminatory denial of protection in Chapter 3.4 at note 566 ff.
126
Nor is it an answer that free movement within the Union permits would-be refugees to
seek protection elsewhere. As Stern notes, “[t]o regard the right of free movement of
Union citizens and their families as an acceptable alternative to protection is deeply
problematic on at least two counts. One is that the right to freedom of movement is in
practice not accessible or correctly applied to all EU citizens, as illustrated by the much-
criticised French expulsions in 2010 of Romanian and Bulgarian citizens of Roma origin.
In addition . . . the right of residence for longer than 3 months is reserved for certain
categories of migrants fulfilling certain conditions and thus not applicable to everyone
without exception. The right to seek asylum as understood in international law, on the
other hand, is not limited to a person’s occupation or social status”: R. Stern, “At a
Crossroad? Reflections on the Right to Asylum for European Union Citizens,” (2014)
33(2) Refugee Survey Quarterly 54, at 72–73.
127
EU Procedures Directive (recast), at Art. 39(2) (requiring only that a “safe state” have
ratified relevant refugee and human rights instruments and “ha[ve] in place an asylum

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 336 4 r i g ht s of re f u g e e s p hy s i c a l l y p r e s e n t

The determination to rely on non-entrée policies has reached new heights in

recent years, with some states enacting formal excision policies that deem
parts of their own territory to be “outside” their jurisdiction, hoping thereby to
avoid protection responsibilities to persons present therein. A particularly
insidious mechanism of non-entrée is the designation by some states of part
of their airports, coastlines, or borders as a so-called “transit zone,” in which
neither domestic nor international law is said to apply. Hungary, for example,
has summarily expelled or turned away persons in transit areas seeking
recognition of their refugee status without any examination of their need for
protection.128 President Putin adopted a similar position when confronted
with the presence of whistle-blower Edward Snowden in the “transit zone” of
Moscow’s Sheremetyevo Airport.129 Even more creatively, the Australian
government “excised” more than 3,500 of its islands from Australia’s self-
declared “migration zone” in 2001, declaring that it had no protection obliga-
tions to refugees arriving in an excised part of Australian territory.130 The
excision policy has since been expanded to exclude the entire mainland of
Australia, with the result that refugees arriving by boat are routinely removed
from areas of Australian jurisdiction to overseas detention facilities.131

procedure prescribed by law”). See generally C. Costello, The Human Rights of Refugees
and Migrants in European Law (2016) (Costello, Human Rights of Refugees), at 254.
128
M. Robinson and G. Szakacs, “Hungary’s ‘Transit’ Zones Will Send Refugees on a U-
Turn,” Reuters, Sept. 9, 2015. According to one report on Hungarian practices, “[t]he
official government position, as communicated in the press, is that asylum seekers
admitted to the transit zone are on ‘no man’s land’, and that persons who were admitted
and later ‘pushed back’ in the direction of Serbia have never really entered the territory of
Hungary. Consequently, such ‘push backs’ do not qualify as acts of forced return . . . [But]
[t]he transit zone and the fence are on Hungarian territory and even those queuing in front
of the transit zone’s door are standing on Hungarian soil – as also evidenced by border
stones clearly indicating the exact border between the two states”: Hungarian Helsinki
Committee, “Border Procedure (Border and Transit Zones): Hungary,” Asylum
Information Database, 2017.
129
A. Arutunyan, K. Hjelmgaard, and Z. Coleman, “Putin Says Snowden is Not Technically in
Russia,” USA Today, June 25, 2013.
130
Migration Act 1958, as amended, ss. 5(1) and 7. “Any person without a valid visa (an
‘unlawful non-citizen’), who first reached Australian territory at ‘an excised offshore place’
by sea was classified as an ‘offshore entry person.’ The key consequence of the Act was that
‘offshore entry persons’ were prevented from applying for a visa under Australia’s existing
application process. ‘Offshore entry persons’ were also to be barred from access to existing
independent administrative and judicial review of migration decisions. Crucially, ‘off-
shore entry persons’ could be transferred to third countries for processing and they were
precluded from initiating legal proceedings against the government challenging their
designation as ‘unlawful non-citizens’, their potential transfer offshore for processing
and the lawfulness of detention”: A. Vogl, “Over the Borderline: A Critical Inquiry into
the Geography of Territorial Excision and the Securitisation of the Australian Border,”
(2015) 38(1) University of New South Wales Law Journal 114, at 124.
131
Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Act 2013. In
truth, provisions purporting to exclude territory from Australia’s migration zone are

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 4.1 right to enter a nd remain in an asylum state 337

In sum, refugees face a broad array of practices and policies that may prevent
them from entering and remaining in an asylum state. Some efforts are direct
physical interventions that deny refugees access to a state’s territory altogether,
including complete closure of borders, the erection of barriers to entry, and
interdiction efforts. Alternatively the risk may arise after a refugee has already
arrived, including summary ejection, refusal of access to an assessment proced-
ure, practical weaknesses in the operation of asylum systems, extraterritorial
processing, and “voluntary” repatriation. A third set of non-entrée mechanisms
excludes refugees in a less direct way, relying on legal or other formal norms or
arrangements to insulate an asylum state from the arrival or continued presence
of refugees by, for example, the imposition of a visa requirement, invocation of
“first country of arrival,” “safe third country,” or “safe country of origin”
concepts, or even by the formal excision of territory.

Refugee Convention, Art. 33 Prohibition of Expulsion or Return

(“Refoulement”)
1. No Contracting State shall expel or return (“refouler”) a refugee in
any manner whatsoever to the frontiers of territories where his life
or freedom would be threatened on account of his race, religion,
nationality, membership of a particular social group or political
opinion.
2. The benefit of the present provision may not, however, be claimed
by a refugee whom there are reasonable grounds for regarding as a
danger to the security of the country in which he is, or who, having
been convicted by a final judgment of a particularly serious crime,
constitutes a danger to the community of that country.

Art. 33 of the Refugee Convention is the primary response of the international

community to the need of refugees to enter and remain in an asylum state.132

“internationally incapable of excluding [the duty of non-refoulement] . . . As the 1969 Vienna

Convention on the Law of Treaties (Article 27) expressly indicates, domestic legislation cannot
be used to escape treaty obligations”: Jean Pierre Fonteyne, “Skulduggery on the High Seas,”
Canberra Times, Sept. 11, 2001, at A-9. See also J. Phippen, “Australia’s Controversial Migration
Policy,” Atlantic, Apr. 29, 2016.
132
The ambiguous relationship between non-refoulement and a right of entry is clear from the
remark of Justices McHugh and Gummow of the High Court of Australia that “[a]lthough
none of the provisions in Chapter V [of the Refugee Convention] gives to refugees a right to
enter the territory of a contracting state, in conjunction they provide some measure of
protection”: Minister for Immigration and Multicultural Affairs v. Khawar, [2002] HCA 14
(Aus. HC, Apr. 11, 2002), per McHugh and Gummow JJ. Indeed, the duty of non-refoulement
“preserves a subtle – and sometimes insecure – compromise between, on the one hand, the
inescapable right of states to control access to their territory and, on the other, the imperious
protection of refugees whose lives and liberty are threatened”: V. Chetail, “Are Refugee Rights
Human Rights? An Unorthodox Questioning of the Relations between Refugee Law and

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 338 4 r i gh t s of ref ug ees physic ally present

The duty of non-refoulement is not, however, the same as a right to asylum from
persecution,133 in at least two ways.
First and most critically, the duty of non-refoulement only prohibits meas-
ures that cause refugees to “be pushed back into the arms of their persecu-
tors”;134 it does not affirmatively establish a duty on the part of states to receive
refugees.135 As an obligation “couched in negative terms,”136 it constrains, but
does not fundamentally challenge, the usual prerogative of states to regulate

Human Rights Law,” in R. Rubio-Marín ed., Human Rights and Immigration 19 (2014)
(Chetail, “Are Refugee Rights Human Rights?”), at 33. Importantly, however, non-refoulement
adds critical value since the duty of non-expulsion does not include a duty of non-exclusion:
International Law Commission, “Draft Articles on the Expulsion of Aliens,” [2011] 2(2)
Yearbook of the International Law Commission, at Art. 1, Comment 3.
133
Interestingly, even the (non-binding) Universal Declaration of Human Rights provides
only that “[e]veryone has the right to seek and to enjoy in other countries asylum from
persecution” – a formulation which stops distinctly short of requiring states to grant
asylum: Universal Declaration of Human Rights, UNGA Res. 217A(III), Dec. 10, 1948
(Universal Declaration), at Art. 14(1). Perhaps most tellingly, not even a vague formula-
tion of this kind made its way into the (binding) Covenant on Civil and Political Rights.
This treaty provides only that “[e]veryone shall be free to leave any country, including his
own”: International Covenant on Civil and Political Rights, 999 UNTS 172 (UNTS 14668),
adopted Dec. 16, 1966, entered into force Mar. 23, 1976 (Civil and Political Covenant), at
Art. 12(2). Yet given these provisions and the Refugee Convention itself, the House of
Lords erred in observing that “a person has no right to live elsewhere than in his country of
nationality, and has no right to claim asylum”: Januzi and Hamid v. Secretary of State for
the Home Department, [2006] UKHL 5 (UK HL, Feb. 15, 2006), at [6].
134
Statement of Mr. Chance of Canada, UN Doc. E/AC.32/SR.21, Feb. 2, 1950, at 7. In line
with this understanding, the Court of Justice of the European Union determined that
cognate duties under the European Convention on Human Rights “do[] not, however,
imply a general duty for a Contracting State . . . to bring persons who are under the
jurisdiction of another State within its own jurisdiction”: ND and NT v. Spain, Dec. Nos.
8675/15 and 8697/15 (ECtHR, Feb. 13, 2020), at [221].
135
Art. 33 was said to be “a negative duty forbidding the expulsion of any refugee to certain
territories but [which] did not impose the obligation to allow a refugee to take up residence”:
Statement of Mr. Weis of the International Refugee Organization, UN Doc. E/AC.32/SR.40,
Aug. 22, 1950, at 33. See E. Lauterpacht and D. Bethlehem, “The Scope and Content of the
Principle of Non-refoulement,” in E. Feller et al. eds., Refugee Protection in International Law
87 (Lauterpacht and Bethlehem, “Non-refoulement”), at [76]: “[T]he 1951 Convention and
international law generally do not contain a right to asylum . . . [W]here States are not
prepared to grant asylum to persons who have a well-founded fear of persecution, they must
adopt a course of action which does not amount to refoulement. This may involve removal to
a safe third country or some other solution such as temporary protection or refuge.” The
English Court of Appeal thus correctly observed that “the key prohibition against refoule-
ment . . . app[lies] only to persons who are within the territory (or at least the control) of a
contracting state, and there is no obligation on a contracting state to admit asylum seekers to
its territory”: R (AB) v. Secretary of State for the Home Department, [2018] EWCA Civ 383
(Eng. CA, Mar. 6, 2018), at [23].
136
M38/2002 v. Minister for Immigration and Multicultural and Indigenous Affairs, [2003]
FCAFC 131 (Aus. FFC, June 13, 2003). See also NBMZ v. Minister for Immigration and
Border Protection, [2014] FCAFC 38 (Aus. FFC, Apr. 9, 2014), at [12], in which the Full

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 4.1 right to enter and remai n in an asylum state 339

the entry into their territory of non-citizens.137 State parties may therefore
deny entry to refugees so long as there is no real chance that their refusal will
result in the return of the refugee to face the risk of being persecuted.138 This is
so even if the refugee has not previously been recognized as a refugee by any
other country.139 But where there is a real risk that rejection will expose the
refugee “in any manner whatsoever” to the risk of being persecuted for a
Convention ground, Art. 33 amounts to a de facto duty to admit the refugee,
since admission is normally the only means of avoiding the alternative, imper-
missible consequence of exposure to risk.140

Federal Court observed that Art. 33 “does not create a right to asylum, but it comprises a
negative obligation to refrain from acts that would risk return to persecution.” It was
similarly observed in the Canadian Federal Court of Appeal that “Article 33 of the Refugee
Convention . . . impose[s] a negative obligation not to refoule, not a positive obligation to
receive potential claimants”: Her Majesty the Queen v. Canadian Council for Refugees et al.,
[2008] FCA 229 (Can. FCA, June 27, 2008), at [114], per Evans J. (concurring). But in a
case contesting Belgium’s refusal to issue a Syrian refugee family in Lebanon with a visa to
come to Belgium in order to seek asylum, the Advocate General opined that the European
Charter of Fundamental Rights “implies the existence of a positive obligation on the part
of Member States, which must require them to issue a visa with limited territorial validity
where there are substantial grounds to believe that the refusal to issue that document will
have the direct consequence of exposing persons seeking international protection to
torture or inhumane or degrading treatment”: X and X v. Belgium, Case No. C-636/16
PPU (CJEU, Opinion of Advocate General Mengozzi, Feb. 7, 2017), at [3]. A Grand
Chamber of the Court, however, decided the case on jurisdictional grounds without
addressing the merits of the Advocate General’s views: X and X v. Belgium, Case No. C-
636/16 PPU (CJEU, Mar. 7, 2017).
137
“Apart from any limitations which may be imposed by specific treaties, states have been
adamant in maintaining that the question of whether or not a right of entry should be
afforded an individual, or to a group of individuals, is something which falls to each nation
to resolve for itself”: Minister for Immigration and Multicultural Affairs v. Khawar, [2002]
HCA 14 (Aus. HC, Apr. 11, 2002), per McHugh and Gummow JJ. This formulation was
endorsed in R v. Immigration Officer at Prague Airport et al., ex parte European Roma
Rights Centre et al., [2004] UKHL 55 (UK HL, Dec. 9, 2004), at [19]. In practice, of course,
“the right of a state to grant or refuse asylum shall be exercised in accordance with its duty
of non-refoulement,” meaning that “asylum is generally the only practical means to respect
and ensure respect for Article 33”: V. Chetail, International Migration Law (2019)
(Chetail, International Migration Law), at 192.
138
In defining the relevant evidentiary standard for sending a refugee to another state in line
with Art. 33, the Full Federal Court of Australia has helpfully insisted that the destination
country must be one in which “the applicant will not face a real chance of persecution for a
Convention reason,” and that there is not “a real chance that the person might be refouled
[from the state of immediate destination] to a country where there will be a real risk of
persecution [emphasis added]”: V872/00A v. Minister for Immigration and Multicultural
Affairs, [2002] FCAFC 185 (Aus. FFC, June 18, 2002).
139
Rajendran v. Minister for Immigration and Multicultural Affairs, (1998) 166 ALR 619
(Aus. FFC, Sept. 4, 1998).
140
“While the principle does not oblige States to grant refugees asylum, it ensures that such
persons must be allowed to stay, even if denied asylum, unless they can be sent to a third
country where they are safe from persecution and from being returned to the country of

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 340 4 ri g h t s of r e f u g e es ph y s i c a l l y p r e s e nt

The second critical distinction between non-refoulement and a right of asylum

follows directly from the purely consequential nature of the implied duty to admit
refugees under Art. 33. Because the right of entry that flows from the duty of non-
refoulement is entirely a function of the existence of a risk of being persecuted, it
does not compel a state to allow a refugee to remain in its territory if and when that
risk has ended. Thus, “[r]efugee status is a temporary status for as long as the risk of
persecution remains.”141 Indeed, as the High Court of Australia has observed,
“[t]he term ‘asylum’ does not appear in the main body of the text of the
[Refugee] Convention; the Convention does not impose an obligation upon
contracting states to grant asylum or a right to settle in those states to refugees
arriving at their borders.”142

4.1.1 Beneficiaries of Protection

The original prohibition of refoulement, contained in the 1933 Convention,
could be claimed only by “refugees who have been authorized to reside [in the
state party] regularly.”143 In line with this precedent, the original drafts144 of
the duty of non-refoulement in the 1951 Refugee Convention extended
protection only to refugees whose arrival was sanctioned by the asylum
state. Yet both the Secretary-General’s and French drafts of the Convention
also contained an additional sub-paragraph not conditioned on authorized
entry, providing for a duty “in any case not to turn back refugees to the

persecution”: W. Kälin, M. Caroni, and L. Heim, “Article 33, para. 1,” in A. Zimmermann
ed., The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A
Commentary 1327 (2011) (Kälin, “Article 33, para. 1”), at 1335.
141
R v. Secretary of State for the Home Department, ex parte Yogathas, [2002] UKHL 36 (UK
HL, Oct. 17, 2002), per Lord Scott.
142
Minister for Immigration and Multicultural Affairs v. Khawar, [2002] HCA 14 (Aus. HC, Apr.
11, 2002), per McHugh and Gummow JJ. See also Ruddock v. Vadarlis, (2001) 110 FCR 491
(Aus. FFC, Sept. 18, 2001), at 521: “By Art. 33, a person who has established refugee status may
not be expelled to a territory where his life and freedom would be threatened for a Convention
reason. Again, there is no obligation on the coastal state to resettle in its own territory.”
Similarly, the European Court of Human Rights has insisted that “neither the [European
Convention on Human Rights] nor its Protocols protect, as such, the right to asylum”: ND and
NT v. Spain, Dec. Nos. 8675/15 and 8697/15 (ECtHR, Feb. 13, 2020), at [188].
143
Convention relating to the International Status of Refugees, 159 LNTS 3663, done Oct. 28,
1933, entered into force June 13, 1935 (1933 Refugee Convention), at Art. 3.
144
The drafts prepared by both the Secretary-General and France that were before the Ad
Hoc Committee on Statelessness and Related Problems in February 1950 accorded
protection against refoulement only to refugees “who have been authorized to reside [in
the state party] regularly”: United Nations, “Proposal for a Draft Convention,” UN Doc. E/
AC.32/2, Jan. 17, 1950 (United Nations, “Draft Convention”), at 45 (draft Art. 24(1)); and
France, “Proposal for a Draft Convention,” UN Doc. E/AC.32/L.3, Jan. 17, 1950 (France,
“Draft Convention”), at 9 (draft Art. 19(1)).

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 4.1 right to enter a nd remain in an asylum state 341

frontiers of their country of origin, or to territories where their life or

freedom would be threatened.”145
A non-governmental text submitted by the Agudas Israel World
Organization was, however, selected over the two official drafts as the basis
for this part of the work of the Ad Hoc Committee on Statelessness and Related
Problems.146 Under the Agudas approach as modified by the delegates, the
distinct provisions addressing non-refoulement and non-return to the risk of
persecution were collapsed into a single provision applicable to all refugees,
with no mention of the need for authorized arrival.147 This critical conceptual
shift attracted no comment.148 The drafting process thereafter proceeded on
the assumption that prior permission to reside in the asylum state was not a
relevant issue.149 This decision to protect all refugees from the risk of

145
United Nations, “Draft Convention,” at 45 (draft Art. 24(3)); and France, “Draft
Convention,” at 9 (draft Art. 19(3)).
146
UN Doc. E/AC.32/SR.20, Feb. 1, 1950, at 3. The representative of the United Kingdom
argued that this text “presented the question of expulsion and non-admittance in a more
logical form than did the others”: ibid.
147
“Each of the High Contracting Parties undertakes not to expel or to turn back refugees to
the frontiers of territories where their life or freedom would be threatened on account of
their race, religion, nationality or political opinions”: UN Doc. E/AC.32/L.22, Feb. 1, 1950.
148
Indeed, an exchange between the Venezuelan, French, and Canadian representatives
makes clear that the provision was not to be limited to refugees lawfully admitted to
residency. “The Chairman, speaking as the representative of Canada, said that his country
was in a similar situation to that of Venezuela in that shiploads of emigrants were often
landed far away from any port control authorities. The difficulties entailed by such
practices were, however, very small compared with those facing European countries.
That was why he wanted to achieve unanimity on article [33], which gave refugees the
minimum guarantees to which they were entitled”: Statement of Mr. Chance of Canada,
UN Doc. E/AC.32/SR.22, Feb. 2, 1950, at 22. Ben-Nun’s analysis of the drafting history
thus sensibly concludes “that in all probability, non-refoulement did indeed apply to
refugees on the high seas, which had been a well-known phenomenon since the late
1930s”: G. Ben-Nun, “The British-Jewish Roots of Non-refoulement and its True
Meaning for the Drafters of the 1951 Refugee Convention,” (2014) 28(1) Journal of
Refugee Studies 93 (Ben-Nun, “British-Jewish Roots”), at 113.
149
A Swiss protest that the article “concerned only refugees lawfully resident in a country and
not those who applied for admission or entered the country without authorization”
evoked an immediate answer from the Israeli representative that in fact “[t]he Swiss
observer was apparently under a misapprehension with regard to the application of article
[33]. In the discussions at the first session it had been agreed that article [33] referred both
to refugees legally resident in a country and those who were granted asylum for humani-
tarian reasons. Apparently the Swiss Government was prepared to accept the provisions of
the article with regard to lawfully resident refugees but not to those entering illegally and
granted asylum. He feared that the Swiss Government might find its interpretation in
conflict with the general feeling which had prevailed in the Committee when it had drafted
the article”: Statements of Mr. Schurch and Mr. Robinson, UN Doc. E/AC.32/SR.40, Aug.
22, 1950, at 32–33. But see Kälin, “Article 33, para. 1,” at 1341, contending that “[w]hether
the prohibition of refoulement would apply to individual cases of refugees arriving at the
border was not discussed.”

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 342 4 ri g ht s o f re f u g e e s p hy s i c a l l y p r e s e n t

refoulement is clearly of huge importance to most contemporary refugees, since

they have generally not been authorized to travel to, much less to reside in, the
state from which they request protection. Indeed, as the Full Federal Court of
Australia insisted in the context of an Iranian refugee denied a visa by the
Minister, “the protection obligations in Article 33 of the Refugee Convention
applied to the applicant because he is a refugee even though he has been
refused a visa.”150
On a related point, it has previously been explained that the duty of non-
refoulement inheres on a provisional basis even before refugee status has been
formally assessed by a state party.151 In brief, because it is one’s de facto
circumstances, not the official validation of those circumstances, that give
rise to Convention refugee status,152 genuine refugees may be fundamentally
disadvantaged by the withholding of rights pending status assessment. Unless
status assessment were virtually immediate, refugees who are rights holders
under international law could be precluded from exercising their legal rights
during the often protracted domestic processes by which their entitlement to
protection is verified by officials.153 Not only do Convention rights clearly
inhere (albeit provisionally) on the basis of satisfaction of the relevant attach-
ment requirement, but the duty of non-refoulement is one of a small number of
rights that is not contingent even on arrival at a state’s territory, much less on
the formal adjudication of status.154 The duty therefore applies whether or not
refugee status has been formally recognized and as soon as a refugee comes
under the jurisdiction of a state party.155

150
NBMZ v. Minister for Immigration and Border Protection, [2014] FCAFC 38 (Aus. FFC,
Apr. 9, 2014), at [115].
151
See Chapter 3.1 at note 34 ff. Thus, “all asylum seekers are protected by the principle of
non-refoulement, and the protection applies as long as the claim to refugee status has not
been finally rejected after a proper procedure”: Alex Ruta v. Minister of Home Affairs,
[2018] ZACC 52 (SA CC, Dec. 20, 2018), at [29].
152
See Chapter 3.1 at note 28. The South African High Court thus correctly determined that
the making of a claim to refugee status on new grounds after an original claim was
dismissed “will in some cases [give rise to] an obligation on the Department to reconsider
that application . . . The principle of non-refoulement is binding on our country . . . It
imposes an obligation not to surrender persons . . . where there are substantial grounds for
believing that the person would . . . face persecution in the receiving state”: Esnat Maureen
Makumba v. Minister of Home Affairs, Case No. 6183/14 (SA HC, Dec. 3, 2014), at [20].
153
“Article 33 protects ‘refugees’ against return . . . [T]his notion has to be understood in a
wide sense, encompassing e.g. asylum seekers whose claims to be refugees have not been
refuted by a final decision”: Kälin, “Article 33, para. 1,” at 1360.
154
See Chapter 3.1.1 at note 40. Similarly, in the context of European asylum law, “the fact
that the parties concerned had failed to expressly request asylum did not exempt Italy from
fulfilling its [non-refoulement] obligations”: F. Cherubini, Asylum Law in the European
Union (2015), at 224.
155
ND and NT v. Spain, Dec. Nos. 8675/15 and 8697/15 (ECtHR, Feb. 13, 2020), at [179]. See
generally Chapter 3.1.1 and Chetail, International Migration Law, at 187, 189.

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 4.1 right to enter and remai n in an asylum state 343

A somewhat more contentious question is whether the beneficiary class for

protection against refoulement under the terms of Art. 33 is the same as the
class of refugees defined by Art. 1 of the Refugee Convention. On the one hand,
a narrow textual analysis of the kind embraced by the Supreme Court of the
United States might lead one to believe that not all refugees are guaranteed Art.
33 rights, since the text of the provision prohibits only the return of refugees to
places where their “life or freedom would be threatened” for a Convention
reason.156 As Weis affirms, however, the drafters of the Convention had no
desire to limit protection against refoulement to only a subset of refugees.157
Rather, the reference to “life or freedom” was intended to function as a
shorthand for the risks that give rise to refugee status under the terms of Art.
1.158 The drafting history affords no evidence whatever for the contrary thesis
that this choice of language was intended fundamentally to limit the ability to
claim the Convention’s most basic right.159 As the High Court of Kenya
recently concluded,

156
In a misguided effort to reconcile then prevailing domestic US law to the requirements of
international law (since amended by 8 USC 1158(c)(1)(A)), the US Supreme Court seized
on the “life or freedom” language in Art. 33 to validate the more limited American
approach. The Court thus determined that “those who can only show a well-founded
fear of persecution are not entitled to anything, but are eligible for the discretionary relief
of asylum”: Immigration and Naturalization Service v. Cardoza Fonseca, (1987) 480 US
421 (US SC, Mar. 9, 1987). This approach has recently been emphasized by the US
Attorney General, who insisted that “[a]sylum is a discretionary form of relief from
removal . . . I remind all asylum adjudicators that a favorable exercise of discretion is a
discrete requirement for the granting of asylum and should not be presumed or glossed
over solely because an applicant otherwise meets the burden of proof for asylum eligibility
[emphasis added]”: Matter of AB, Dec. No. 3929, 27 I&N Dec. 316 (US AG, June 11, 2018),
at 345. But see generally J. Hathaway and A. Cusick, “Refugee Rights Are Not Negotiable,”
(2000) 14(2) Georgetown Immigration Law Journal 481.
157
“The words ‘where their life or freedom was threatened’ may give the impression that
another standard is required than for refugee status in Article 1. This is, however, not the
case. The Secretariat draft referred to refugees ‘escaping from persecution’ and to the
obligation not to turn back refugees ‘to the frontier of their country of origin, or to
territories where their life or freedom would be threatened on account of their race,
religion, nationality, or political opinions.’ In the course of drafting the words ‘country
of origin,’ ‘territories where their life or freedom was threatened’ and ‘country in which he
is persecuted’ were used interchangeably. The reference to Article 1 of the Convention was
introduced mainly to refer to the dateline of 1 January 1951 but it also indicated that there
was no intention to introduce more restrictive criteria than that of ‘well-founded fear of
persecution’ used in Article 1(A)(ii)”: P. Weis, The Refugee Convention, 1951: The Travaux
Préparatoires Analysed with a Commentary by Dr. Paul Weis (posthumously pub’d., 1995)
(Weis, Travaux), at 303, 341.
158
See Chapter 4.2.1 at note 1003 for discussion of the choice of comparable language for Art.
31(1).
159
As Grahl-Madsen observes, “it was quite unwittingly that the concept of ‘life [or] freedom’
was introduced [into] Article 31, and it seems that the widening of [the] scope of the
provision . . . must not lead us to restrict its meaning with regard to the kinds of

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As to the words “where his life or freedom would be threatened,” it appears

from the travaux préparatoires that they were not intended to lay down a
stricter criterion than the words “well-founded fear of persecution” figuring
in the definition of the term “refugee” in Article 1(A)(2). The different
wording was introduced for another reason, namely to make it clear that
the principle of non-refoulement applies not only in respect of the country of
origin but to any country where a person has reason to fear persecution.160

Diametrically opposed to the approach of the US Supreme Court,

Lauterpacht and Bethlehem argue that “the threat contemplated in Article 33(1)
[may be] broader than simply the risk of persecution . . . [including] a threat to life
or freedom [that] may arise other than in consequence of persecution.”161 In
support of this thesis, they rely on the broadening of UNHCR’s competence as an
agency, on the humanitarian objectives of the Refugee Convention, and on the
fact that various regional human rights instruments are now understood to
provide for more broadly applicable forms of protection against refoulement.
This leads them to conclude that “a broad reading of the threat contemplated by
Article 33(1) is warranted [emphasis added],”162 and specifically that:

[T]he words “where his life or freedom would be threatened” must be

construed to encompass circumstances in which a refugee or asylum-
seeker (a) has a well-founded fear of being persecuted, (b) faces a real
risk of torture or cruel, inhuman or degrading treatment or punishment,
or (c) faces other threats to life, physical integrity, or liberty.163

Putting to one side the question of whether there is today a broader duty of
non-refoulement under customary international law,164 and recognizing that
the threats noted in (b) and (c) are in any event likely to fall within modern
understandings of a risk of “being persecuted,”165 the analysis presented is
persecution which warrant exemption from penalties. It is likewise inadmissible to use the
language of Articles 31 and 33 to restrict the meaning of ‘persecution’ in Article 1. The
word ‘freedom’ must be understood in its widest sense”: A. Grahl-Madsen, Commentary
on the Refugee Convention 1951 (1963, pub’d. 1997) (Grahl-Madsen, Commentary), at 175.
See also Kälin, “Article 33, para. 1,” at 1342 (“Every person encompassed by the refugee
definition according to Art. 1 is automatically protected by Art. 33, provided none of the
exclusion clauses of Art. 1F applies”).
160
Kenya National Commission on Human Rights v. Attorney General, Constitutional
Petition No. 227 of 2016 (Ken. HC, Feb. 9, 2017), at 14.
161
Lauterpacht and Bethlehem, “Non-refoulement,” at [127]. 162 Ibid. at [128]–[132].
163
Ibid. at [133]. 164 See Chapter 4.1.6.
165
Justice Kirby of the High Court of Australia has observed that “decision-makers in several other
jurisdictions [have approached] the meaning of the word ‘persecuted’ by reference to the
purpose for which, and the context in which, it appears rather than strictly by reference to local
dictionaries . . . [The Refugee Convention’s] meaning should be ascertained having regard to its
object, bearing in mind that the Convention is one of several important international treaties
designed to redress ‘violation[s] of basic human rights, demonstrative of a failure of state
protection’”: Minister for Immigration and Multicultural Affairs v. Khawar, [2002] HCA 14

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 4.1 right to enter and remai n in an asylum state 345

simply unsustainable as a matter of law. The fact that there has been an
expansion of UNHCR’s agency mandate and of the duty of non-return
under international human rights law more generally cannot be invoked to
determine the meaning of Art. 33(1) of the Refugee Convention. While refer-
ence can, of course, be made to understandings of these more general devel-
opments in order to interpret cognate ambiguous language,166 evolution
outside refugee law cannot be relied upon to override the explicit textual
linkage between the risks described in Art. 33(1) and entitlement to recogni-
tion of refugee status under Art. 1.167
A sensible middle-ground between the extremes of the US Supreme Court and
that of Lauterpacht and Bethlehem was taken by Lord Goff in the House of Lords
decision of Sivakumaran – namely that Art. 33’s guarantee against refoulement
where “life or freedom would be threatened” for a Convention ground extends to
situations where there is a risk of “being persecuted” for a Convention ground:
It is, I consider, plain, as indeed was reinforced in argument by counsel for
the High Commissioner with reference to the travaux préparatoires, that
the non-refoulement provision in Article 33 was intended to apply to all
persons determined to be refugees under Article 1 of the Convention.168
The approach has also been routinely endorsed in the Australian jurispru-
dence,169 is affirmed in the more recent English case law,170 has been adopted
(Aus. HC, Apr. 11, 2002), per Kirby J. The Canadian Supreme Court has held that “[u]nderlying
the Convention is the international community’s commitment to the assurance of basic human
rights without discrimination . . . Persecution, for example, undefined in the Convention, has
been ascribed the meaning of sustained or systemic violation of basic human rights demon-
strative of a failure of state protection”: Canada v. Ward, (1993) 103 DLR 4th 1 (Can. SC, June
30, 1993). It has similarly been determined in the United Kingdom that “core entitlements
[relevant to the meaning of ‘being persecuted’] . . . may be found by reference either to
obligations under international law (obligations between states), or by reference to the
human rights of individuals, for example pursuant to the conventions on human rights, or as
recognized by the international community at large”: Sepet v. Secretary of State for the Home
Department, [2001] EWCA Civ 681 (Eng. CA, May 11, 2001), per Waller L.J., appeal to the
House of Lords rejected in Sepet and Bulbul v. Secretary of State for the Home Department,
[2003] UKHL 15 (UK HL, Mar. 20, 2003).
166
See Chapter 2.3 at note 137. 167 See Chapter 2.1 at note 42.
168
R v. Secretary of State for the Home Department, ex parte Sivakumaran, [1988] 1 All ER 193
(UK HL, Dec. 16, 1987), per Lord Goff at 202–203.
169
“Article 33 states the principle of non-refoulement, which applies to persons who are
refugees within the meaning of Article 1. Although the definition of ‘refugee’ in Article 1
and the identification of persons subject to the non-refoulement obligation in Article 33
differ, it is clear that the obligation against [refoulement] applies to persons who are
determined to be refugees under Article 1”: M38/2002 v. Minister for Immigration and
Multicultural and Indigenous Affairs, [2003] FCAFC 131 (Aus. FFC, June 13, 2003). See
also Minister for Immigration and Multicultural Affairs v. Savvin, (2000) 171 ALR 483
(Aus. FFC, Apr. 12, 2000).
170
“In my judgment it is Art. 1 . . . which must govern the scope of Art. 33 rather than the
other way round”: Adan v. Secretary of State for the Home Department, [1997] 1 WLR 1107

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 346 4 ri g ht s of re f u g e es p hy s i c a l l y p r e s e n t

in New Zealand,171 and was found to be compelling by the Supreme Court of

Canada.172 Not only is it a position that is firmly rooted in the actual intentions of
the drafters, but it most effectively meshes with the internal structure of the
Convention itself.173 In contrast, the conservative view championed by the
American Supreme Court174 implies that at least some persons with a well-
founded fear of being persecuted may nonetheless be forced back to persecution
unless the risk they face is particularly egregious – surely an interpretation at odds
with the Convention’s basic purpose of ensuring that refugees are granted the
Convention’s protections.175 Equally of concern, the expansionist optic contended
for by Lauterpacht and Bethlehem176 seems designed effectively to require state
parties to the Refugee Convention to implement duties that in fact follow from

(Eng. CA, Feb. 13, 1997), per Simon Brown L.J. While the House of Lords reversed the
result reached in the Court of Appeal, four members of the House of Lords (Lord Lloyd of
Berwick, Lord Goff of Chieveley, Lord Nolan, and Lord Hope of Craighead) nonetheless
specifically endorsed the views of Simon Brown L.J. on this point: R v. Secretary of State for
the Home Department, ex parte Adan, [1999] 1 AC 293 (UK HL, Apr. 2, 1998), at 306, 301,
312, and 312. The English Court of Appeal expressly approved of the Sivakumaran
approach, noting that “the non-refoulement provision was intended to apply to all persons
determined to be refugees under Article 1 of the Convention”: AA v. Secretary of State for
the Home Department, [2006] EWCA Civ 401 (Eng. CA, Apr. 12, 2006), at [93].
171
The New Zealand Court of Appeal has determined that the scope of prohibited return
under Art. 33(1) “is usually interpreted as covering all situations where the refugee risks
any type of persecution for a Convention reason”: Attorney General v. Zaoui, [2005] 1
NZLR 690 (NZ CA, Sept. 30, 2004), at [36]; varied on other grounds in Attorney-General v.
Zaoui, [2005] NZSC 38 (NZ SC, June 21, 2005).
172
“The different words used in Articles 1 and 33 give rise to the question of whether all
persons who meet the definition of refugee in Article 1 . . . are entitled to protection under
Article 33, or whether some different or higher standard is required to be entitled to that
protection. There is a strong case to be made that the thresholds are in fact the same under
both provisions . . . There are, however, opinions to the contrary in the United States . . .
[But even the majority position of the US Supreme Court in Cardoza-Fonseca] was not
accepted by three members of the Court. Given the fundamental human rights character
of the Refugee Convention and the centrality to refugee law of the principle of non-
refoulement, I, with respect, find the views of the commentators and the judicial opinions
from other jurisdictions . . . more persuasive on this point”: Jószek Németh v. Minister of
Justice of Canada, [2010] SCC 56 (Can. SC, Nov. 25, 2010), at [99]–[101].
173
Wouters agrees that such an interpretation is required for reasons of internal coherence,
noting that any other view “would lead to incomprehensible consequences”: C. Wouters,
International Legal Standards for the Protection from Refoulement (2009) (Wouters,
Refoulement), at 57.
174
See note 156, noting that the US Supreme Court’s finding that a risk to “life or freedom” is
a more demanding notion than a risk of “being persecuted.”
175
“The High Contracting Parties . . . [c]onsidering that it is desirable to revise and consoli-
date previous international agreements . . . and to extend the scope of and the protection
accorded by such instruments by means of a new agreement . . . [h]ave agreed as follows”:
Refugee Convention, at Preamble. The Convention then provides a definition of refugee
status in Art. 1, and defines the rights that follow from refugee status in Arts. 2–34.
176
See text at note 161.

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 4.1 ri ght to enter and remain in an asylum state 347

other human rights conventions – even if states are not actually parties to those
other accords. The middle-ground position on Art. 33 contended for here, in
contrast, ensures that all persons who are refugees are protected from return to the
risks which gave rise to that status: no more, and no less.
It follows from this endorsement of a coordinated understanding of Arts. 1 and
33 that there is at least one, quite fundamental, limitation on the scope of Art. 33’s
duty of non-refoulement. If the duty of non-refoulement under Art. 33 of the
Refugee Convention can be claimed only by persons who are, in fact, refugees,
then it is not a right that inheres in persons who have yet to leave their own
country. This is because Art. 1 of the Convention defines a refugee as a person who
“is outside the country of his nationality.”177 Art. 33 is not therefore a constraint on
actions which deny would-be refugees the ability to leave their own state.
This issue was thoroughly considered in the English European Roma Rights
Centre case.178 One of the arguments advanced was that the pre-entry clear-
ance procedure operated by British authorities at Prague Airport was in breach
of Art. 33. It was agreed that the system was “aimed principally at stemming the
flow of asylum-seekers from the Czech Republic, the vast majority of these
being of Romani ethnic origin (Roma), and that in this it has plainly had some
considerable success.”179 Moreover, it was also understood that “[t]he object of
these controls . . . so far as asylum countries are concerned, is to prevent
[refugees] from reaching [British] shores.”180 The key issue was therefore
“whether a scheme designed to prevent any such asylum claims (whether
genuine or otherwise) being made in the United Kingdom is inconsistent
with the United Kingdom’s obligations in international law, in particular
under the Convention.”181 The Court of Appeal determined that it was not:

That Article 33 of the Convention has no direct application to the Prague

operation is plain . . . [I]t applies in terms only to refugees, and a refugee is
defined . . . as someone necessarily “outside the country of his nationality” . . .
For good measure, Article 33 forbids “refoulement” to “frontiers” and, what-
ever precise meaning is given to the former term, it cannot comprehend action
which causes someone to remain on the same side of the frontier as they began;
nor indeed could such a person be said to have been returned to any frontier.182

177
Refugee Convention, at Art. 1(A)(2). In the case of persons who are stateless, Art. 1
requires that they be “outside the country of [their] former habitual residence”: ibid.
178
R (European Roma Rights Centre and Others) v. Immigration Officer at Prague Airport, [2003]
EWCA Civ 666 (Eng. CA, May 20, 2003), rev’d on other grounds at [2004] UKHL 55 (UK HL,
Dec. 9, 2004).
179
R (European Roma Rights Centre and Others) v. Immigration Officer at Prague Airport,
[2003] EWCA Civ 666 (Eng. CA, May 20, 2003), at [3].
180
Ibid. at [1]. 181 Ibid. at [18].
182
Ibid. at [31]. The House of Lords agreed, noting succinctly that “[t]he requirement that a foreign
national applying for refugee status must, to qualify as a refugee, be outside his country of
nationality is unambiguously expressed in the Convention definition of refugee”: R v.

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This conclusion is legally sound, even as it clearly points to a serious

protection risk that arises by virtue of the gap between the duty of non-
refoulement and a broader notion of access to asylum.183 In truth, in-country
interdiction schemes are more effectively challenged as violations by the
home state of Art. 12(2) of the Civil and Political Covenant, which provides
that “[e]veryone shall be free to leave any country, including his own.”184 The
Human Rights Committee has determined that
Freedom to leave the territory of a State may not be made dependent on
any specific purpose or on the period of time the individual chooses to stay
outside the country. Thus traveling abroad is covered, as well as departure
for permanent emigration. Likewise, the right of the individual to deter-
mine the State of destination is part of the legal guarantee.185

This right may only be limited for a reason deemed legitimate under the
Covenant,186 and may in any event not be limited on a discriminatory
Immigration Officer at Prague Airport et al., ex parte European Roma Rights Centre et al., [2004]
UKHL 55 (UK HL, Dec. 9, 2004), at [16].
183
In the High Court decision, it is recorded that counsel advanced the argument that the Prague
pre-screening system is “if not in breach of an express term or obligation under the Convention,
yet a breach of the obligation of good faith owed by a signatory state, in that it would be
preventing those seeking asylum from gaining international protection”: European Roma
Rights Centre v. Immigration Officer at Prague Airport, [2002] EWCA 1989 (Eng. HC, Oct. 8,
2002), at [34]. In response, the court noted that “[t]he UNHCR has, it seems, reservations about
a pre-clearance system, but it does not explain either how in practice it is to be distinguished
from a visa system, and whether that system too is to be regarded as objectionable, and if so on
what basis, or how the position it takes . . . is consistent with its own Handbook”: ibid. at [49].
The House of Lords emphatically rejected the notion that the duty of good faith treaty
interpretation could effectively result in the imposition of duties at odds with the text of the
treaty, finding that “there is no want of good faith if a state interprets a treaty as meaning what it
says and declines to do anything significantly greater than or different from what it has agreed
to do”: R v. Immigration Officer at Prague Airport et al., ex parte European Roma Rights Centre et
al., [2004] UKHL 55 (UK HL, Dec. 9, 2004), per Lord Bingham at [19]. See generally the
discussion of the implications of the duty of good faith interpretation in the opinion of Lord
Hope, ibid. at [57]–[64], leading to the conclusion that “[w]hat the Convention does is assure
refugees of the rights and freedoms set out in chapters I to V when they are in countries that are
not their own. It does not require the state to abstain from controlling the movements of people
outside its border who wish to travel to it in order to claim asylum”: ibid. at [64].
184
Civil and Political Covenant, at Art. 12(2). “Refugees, like all persons, are free to leave any
country pursuant to Art. 12(2) of the ICCPR. In accordance with Art. 12(3), the freedom
to depart may be subjected only to limitations provided by law, implemented consistently
with other ICCPR rights, and shown to be necessary to safeguard a state’s national
security, public order (ordre public), public health or morals, or the rights and freedoms
of others”: “The Michigan Guidelines on Refugee Freedom of Movement,” (2017) 39
Michigan Journal of International Law 1, at [4].
185
UN Human Rights Committee, “General Comment No. 27: Freedom of Movement”
(1999), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [8].
186
This right is subject only to “restrictions . . . provided by law, [and which] are necessary to
protect national security, public order (ordre public), public health or morals or the rights

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 4.1 r ight to enter and remain in an asylum state 349

basis.187 Thus, at least in a situation akin to the Prague Airport case – where the
prohibition of seeking protection abroad is unlikely to be deemed a legitimate
reason for denial of the right to leave one’s country, and where the prohibition
was, at least in practice, implemented on a race-specific basis188 – the home state
should be found in breach of the Covenant.189 Indeed, both the home state and
any foreign countries with which it chooses to share jurisdiction over departure
from its territory should be held jointly liable for a breach of Art. 12(2).190 But this
does not change the fact that prohibitions on departure operated from within the
territory of one’s own state, and which preclude exit altogether, cannot breach
rights under the Refugee Convention, including to protection against refoulement:
Article 33 . . . is concerned only with where a person must not be sent, not
with where he is trying to escape from. The Convention could have, but
chose not to, concern itself also with enabling people to escape their

and freedoms of others, and are consistent with the other rights recognized in the present
Covenant”: Civil and Political Covenant, at Art. 12(3). The scope of these permissible
limitations is discussed in Chapter 6.6 at note 1123.
187
Art. 12(3) requires that restrictions be “consistent with the other rights recognized in the
present Covenant”; if discriminatory, e.g. on grounds of race, there would be a breach of
both Arts. 2(1) and 26 of the Covenant, thus disqualifying them from meeting the
requirements of Art. 12(3): Civil and Political Covenant, at Art. 12.
188
The House of Lords struck down the British pre-screening system at Prague Airport
precisely on the grounds that “[a]ll the evidence before us, other than that of the intentions
of those in charge of the operation, which intentions were not conveyed to the officers on
the ground, supports the inference that Roma were, simply because they were Roma,
routinely treated with more suspicion and subjected to more intensive and intrusive
questioning than non-Roma . . . [S]etting up an operation like this, prompted by an influx
of asylum seekers who are overwhelmingly from one comparatively easily identifiable
racial or ethnic group, requires enormous care if it is to be done without discrimination.
That did not happen. The inevitable conclusion was that the operation was inherently and
systematically discriminatory and unlawful”: R v. Immigration Officer at Prague Airport et
al., ex parte European Roma Rights Centre et al., [2004] UKHL 55 (UK HL, Dec. 9, 2004),
per Baroness Hale at [97].
189
Indeed, “[s]o long as an individual seeking to leave a state’s territory does so freely,
meaning that he or she has made an autonomous decision to do so, the state of departure
may not lawfully restrict the right to leave on the basis of concerns about risk to the
individual’s life or safety during the process of leaving or traveling”: “The Michigan
Guidelines on Refugee Freedom of Movement,” (2017) 39 Michigan Journal of
International Law 1, at [6].
190
Short of exercising territorial control, shared jurisdiction may be established on the basis
of either authority over individuals or the exercise of public powers: see generally Chapter
3.1.1. The UN Human Rights Committee has read Art. 2(1) of the Civil and Political
Covenant disjunctively, finding that the obligation to respect rights “within [a state’s]
territory and to all persons subject to [its] jurisdiction” means that “a State party must
respect and ensure the rights laid down in the Covenant to anyone within the power or
effective control of that State Party, even if not situated within the territory of the State
Party”: UN Human Rights Committee, “General Comment No. 31: The Nature of the
General Legal Obligation Imposed on States Parties to the Covenant” (2004), UN Doc.
HRI/GEN/1/Rev.7, May 12, 2004, at [10].

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country by providing for a right of admission to another country to allow

them to do so . . .
In an ideal world there would no doubt be provision for states to
facilitate the escape of persecuted minorities . . . I am satisfied, however,
that on no view of the Convention is this within its scope. The distinction
between, on the one hand, a state preventing an aspiring asylum-seeker
from gaining access from his own country to its territory, and on the other
hand returning such a person to his own country . . . can be made to seem a
narrow and unsatisfactory one. In my judgment, however, it is a crucial
distinction to make and it is supported by both the text of the Convention
and by the authorities dictating its scope.191

Art. 33 is similarly incapable of invalidating the classic tool of non-entrée:

visa controls imposed on the nationals of refugee-producing states,192 enforced
by carrier sanctions.193 Visa control policies are generally enforced in countries
of origin by airline and other common carriers, aware that failure to do so
could result in penalties or prosecution by the destination country.194 Because
countries generally do not issue visas for the purpose of entering their asylum
systems, most travelers who honestly state that they intend to claim refugee
status upon arrival will in practice be turned back at the port of departure.
191
R (European Roma Rights Centre and Others) v. Immigration Officer at Prague Airport,
[2003] EWCA Civ 666 (Eng. CA, May 20, 2003), at [37], [43], affirmed in this regard in R v.
Immigration Officer at Prague Airport et al., ex parte European Roma Rights Centre et al.,
[2004] UKHL 55 (UK HL, Dec. 9, 2004), at [13]–[17].
192
In many cases, of course, visa requirements are imposed for general migration control
reasons, with no intent to stop the departure of refugees. Yet it remains that visa controls
are unquestionably crude mechanisms that fail to distinguish between persons at risk of
persecution and others, or between those at-risk persons who can safely access protection
in other countries, and those who have no options.
193
UNHCR has traditionally seemed unwilling to confront the fact that the denial of access to
refugees by the imposition of visa controls is not simply the inadvertent consequence of a
general policy of migration control, but can actually be a policy targeted at those who wish
to claim protection. For example, the only mention of visa controls in UNHCR’s position
paper on interception notes that “[s]tates have a legitimate interest in controlling irregular
migration. Unfortunately, existing controls, such as visa requirements and the imposition
of carrier sanctions . . . often do not differentiate between genuine asylum-seekers and
economic migrants. National authorities, including immigration and airline officials
posted abroad, are frequently not aware of the paramount distinction between refugees,
who are entitled to international protection, and other migrants, who are able to rely on
national protection”: UNHCR, “Interception of Asylum-Seekers and Refugees: The
International Framework and Recommendations for a Comprehensive Approach,” UN
Doc. EC/50/SC/CRP.17, June 9, 2000 (UNHCR, “Interception”), at [17].
194
Greater reliance by refugees on smugglers and traffickers in order to circumvent increas-
ingly sophisticated border controls has, however, arguably reduced the efficacy of visa
controls as a mechanism of non-entrée. Smugglers and traffickers have strong economic
incentives to produce false travel documents that are often difficult to detect; they also
secure access for their clients by bribing border officials and adapting travel routes. See
Gammeltoft-Hansen and Hathaway, “Cooperative Deterrence,” at 246.

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 4.1 r ight to enter and remain in an asylum state 351

Countries of origin are normally aware of such practices, or could readily

inform themselves with minimal effort.195
In contrast to in-country interception of the kind implemented by the
United Kingdom at Prague Airport, however, most visa controls – including,
for example, those routinely imposed by Canada196 and now required by
European Union law197 – operate passively, with no need for the state impos-
ing the controls to establish a physical presence in the would-be refugee’s
country of origin. UNHCR argued before the English courts that reliance
could be placed on this distinction in order to strike down the Prague system
without simultaneously invalidating visa control systems that operate to keep
refugees inside their own countries. It suggested “that there is a distinction to
be made between ‘the active interdiction or interception of persons seeking
refuge from persecution’ on the one hand and ‘passive regimes, such as visa
controls and carrier sanctions’ on the other.” The Court of Appeal sensibly
found this distinction to be without merit:198
In my judgment, there is nothing in these criticisms and indeed the Prague
scheme seems to me to constitute if anything a less, rather than more,
serious problem for would-be asylum-seekers than visa control . . .
. . . [Objections] to visa controls . . . do not sound in international law.
Rather one must hope that when in truth acute humanitarian concerns
arise states will respond beyond the strict call of their international obliga-
tions. This, I believe, is the only answer the Court is entitled to give when
[counsel] conjures up the spectre of a fresh holocaust. Visa controls are, in
short, clearly not outlawed under the Convention or under international
law generally.199
195
See Feller, “Sanctions”; and J. Hathaway and J. Dent, Refugee Rights: Report on a
Comparative Survey (1995), at 13–14.
196
See text at notes 93–94. 197 See text at note 97.
198
R (European Roma Rights Centre and Others) v. Immigration Officer at Prague Airport,
[2003] EWCA Civ 666 (Eng. CA, May 20, 2003), at [48]. In another context, though,
UNHCR seemed to argue that visa controls can breach Art. 33. “Immigration control
measures, although aimed principally at combatting irregular migration, can seriously
jeopardize the ability of persons at risk of persecution to gain access to safety and asylum.
As pointed out by UNHCR in the past, the exclusive resort to measures to combat abuse,
without balancing them by adequate means to identify genuine cases, may result in the
refoulement of refugees [emphasis added]”: UNHCR, “Interception,” at [18]. See also
UNHCR, “UNHCR Position: Visa Requirements and Carrier Sanctions,” Sept. 1995
(noting in particular that when efforts to control unauthorized migration generally
“interfere with the ability of persons at risk of persecution to gain access to safety and
obtain asylum in other countries, then States act inconsistently with their international
obligations towards refugees”).
199
R (European Roma Rights Centre and Others) v. Immigration Officer at Prague Airport,
[2003] EWCA Civ 666 (Eng. CA, May 20, 2003), at [49]–[50]. The House of Lords was in
full agreement on this point, noting that “[h]ad a visa regime been imposed, the effect on
the appellants, so far as concerned their applications for asylum, would have been no
different. But it could not plausibly be argued that a visa regime would have been contrary

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 352 4 r i gh t s of ref ug ees physic ally present

The Court is quite right that visa controls, which operate routinely and in
many places, actually pose a greater risk to refugees than do in-country
interception schemes, which tend to be more selective and less routinely
operationalized.200 And the Court is equally correct that “[o]n the basis of
the [Refugee] Convention as it stands at present, there is no obligation on a
signatory state not to introduce or continue a system of immigration control,
whether by way of a requirement for visas or by the operation of a pre-
clearance system.”201
As in the case of in-country interdiction schemes described above, the most
plausible legal avenue to challenge visa control systems of this sort is to invoke
Art. 12 of the Civil and Political Covenant, in this case in order to hold the
home state liable for its complicity in efforts conducted under its jurisdiction to
stymie the departure of at-risk persons who wish to claim refugee status
abroad.202 The UN Human Rights Committee has indicated its view that, in

to the practice of nations”: R v. Immigration Officer at Prague Airport et al., ex parte

European Roma Rights Centre et al., [2004] UKHL 55 (UK HL, Dec. 9, 2004), at [28].
200
See also R v. Uxbridge Magistrates Court, ex parte Adimi, [1999] 4 All ER 520 (Eng. HC, July 29,
1999), per Simon Brown L.J.: “Although under the Convention subscribing states must give
sanctuary to any refugee who seeks asylum (subject only to removal to a safe third country),
they are by no means bound to facilitate his arrival. Rather they strive increasingly to prevent it.
The combined effect of visa requirements and carrier’s liability has made it well nigh impos-
sible for refugees to travel to countries of refuge without false documents.”
201
R (European Roma Rights Centre and Others) v. Immigration Officer at Prague Airport,
[2003] EWCA Civ 666 (Eng. CA, May 20, 2003), at [49], affirmed in this regard in R v.
Immigration Officer at Prague Airport et al., ex parte European Roma Rights Centre et al.,
[2004] UKHL 55 (UK HL, Dec. 9, 2004), at [34].
202
See text at note 184. In addition to reliance on Art. 12(2) of the Civil and Political Covenant,
it has also been contended that where visa controls are applied after a refugee’s departure
from his or her own country – for example, in a transit country – this may amount to a
breach of the Refugee Convention’s Art. 31, which prohibits the imposition of penalties on
refugees for illegal entry or presence: see Chapter 4.2. This possibility was raised by the
English High Court in relation to refugees interdicted in the United Kingdom because they
did not have the required Canadian visas for onward travel. In R v. Uxbridge Magistrates
Court, ex parte Adimi, [1999] 4 All ER 520 (Eng. HC, July 29, 1999), Simon Brown L.J.
observed, “If I am right in saying that refugees are ordinarily entitled to choose where to
claim asylum and that a short stopover en route in a country where a traveller’s status is in no
way regularized will not break the requisite directness of flight, then it must follow that these
applicants would have been entitled to the benefit of Article 31 had they reached Canada and
made their asylum claims there. If Article 31 would have availed them in Canada, then
logically its protection cannot be denied to them [in the United Kingdom] merely because
they have been apprehended en route.” Indeed, on the basis of this argument, it might even
be possible to find the state which established the visa controls to be liable for breach of Art.
31 where it exercises shared jurisdiction with the transit state – for example, by staffing or
overseeing the personnel who enforce the visa controls. The real difficulty in relying on Art.
31 as an alternative to the (substantively inadequate) Art. 33, however, is that it does not
prohibit the classic result of a visa control, namely return to the country of origin. As is
detailed below, the drafters were clear that expulsion or return are not to be considered
“penalties” for the purposes of Art. 31 protection: see Chapter 4.2.3.

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 4.1 right to enter a nd remain in an asylum state 353

at least some cases, the operation of a system of visa controls and carrier
sanctions will put a state party in breach of the duty to respect the right of
persons to leave their own country, and more generally to enjoy freedom of
international movement:

The practice of States often shows that legal rules and administrative
measures adversely affect the right to leave, in particular, a person’s own
country. It is therefore of the utmost importance that States parties report
on all legal and practical restrictions on the right to leave which they apply
both to nationals and to foreigners, in order to enable the Committee to
assess the conformity of these rules and practices with article 12, paragraph
3 [which defines permissible limitations on this right]. States parties
should also include information in their reports on measures that impose
sanctions on international carriers which bring to their territory persons
without required documents, where those measures affect the right to
leave another country.203

The case for finding a breach of Art. 12 would seem particularly strong
where the visa requirement which the state of origin allows to be enforced
in areas under its jurisdiction is intended explicitly to avoid the departure
of at-risk persons. There is more generally a real question about the
legitimacy of even visas set to regulate non-coerced migration, but
which are known in practice also to preclude the freedom of movement
of would-be refugees, for example generic rules said to be necessary to
avoid smuggling or trafficking.204

203
UN Human Rights Committee, “General Comment No. 27: Freedom of Movement”
(1999), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [10].
204
“International law requires states to prosecute and punish transnational and other organ-
ized criminals who engage in human smuggling, that is the procurement of unauthorized
entry of a person into another state for a financial or other material benefit. The deterrence
of human smuggling may not, however, be invoked to justify a restriction on the right of
persons seeking to leave any country. This is because the avoidance of breach of another
state’s migration laws or policies does not fall within the scope of the public order (ordre
public) exception authorized by ICCPR Art. 12(3), which speaks to an interest of the state
invoking the restriction rather than to an interest of another state. International law also
requires states to combat human trafficking. In contrast to smuggling, human trafficking is
by definition an exploitative practice that harms individuals under the departure state’s
jurisdiction. It may thus prima facie engage an interest under ICCPR Art. 12(3). But
because the right of everyone to leave a country may only be lawfully restricted if that is the
least intrusive means available to pursue even a clearly legitimate interest, state efforts
must focus on interrupting the work of traffickers rather than on seeking to stop the
departure of would-be refugees and others. This approach aligns with Art. 14 of the UN
Trafficking Protocol, requiring anti-trafficking commitments to be pursued in a manner
that ensures respect for refugee and other international human rights”: “The Michigan
Guidelines on Refugee Freedom of Movement,” (2017) 39 Michigan Journal of
International Law 1, at [7]–[8].

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 354 4 r i gh t s of ref ug ees physic ally present

In contrast, finding a breach of Art. 12(2) of the Covenant by the destination

country actually imposing the visa – for example, Lebanon’s visa on Syrians
seeking to escape their country205 – may be more difficult. This is because, in
contrast to situations in which that country actually operates an in-country
interdiction scheme, it is not clear that the state that establishes the visa
controls is in any sense exercising (even shared) jurisdiction over the place of
departure – jurisdiction being the sine qua non for holding states liable for the
extraterritorial actions of their agents.206 The International Court of Justice has
affirmed that “the International Covenant on Civil and Political Rights is
applicable in respect of acts done by a State in the exercise of its jurisdiction
outside its own territory”:207
The travaux préparatoires of the Covenant confirm the [UN Human
Rights] Committee’s interpretation of Article 2 of that instrument. These
show that, in adopting the wording chosen, the drafters of the Covenant
did not intend to allow States to escape from their obligations when they
exercise jurisdiction outside their national territory. They only intended to
prevent persons residing abroad from asserting, vis-à-vis their State of
origin, rights that do not fall within the competence of that State, but of
that of the State of residence.208

In essence, liability for extraterritorial actions follows where a state party

exercises “effective jurisdiction.”209 While this will be a question of fact in each
case, it is far from clear that a state can be said to exercise jurisdiction by the
simple issuance of policies intended to apply extraterritorially, but which are
wholly implemented by third parties operating inside the sovereign territory of
another state.210 The same jurisdictional concerns likely preclude a finding of
205
See text at note 96.
206
See e.g. Casariego v. Uruguay, HRC Comm. No. 56/1979, UN Doc. CCPR/C/OP/1 at 92,
decided July 29, 1981, at [10.1]–[10.3]: “Article 2(1) of the Covenant places an obligation
upon a state party to respect and to ensure rights ‘to all individuals within its territory and
subject to its jurisdiction,’ but it does not imply that the state party concerned cannot be
held accountable for violation of rights under the Covenant which its agents commit upon
the territory of another state, whether with the acquiescence of the government of that
state or in opposition to it . . . [I]t would be unconscionable to so interpret the responsi-
bility under Article 2 of the Covenant, as to permit a state party to perpetrate violations of
the Covenant on the territory of another state, which violations it could not perpetrate on
its own territory.”
207
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
[2004] ICJ Rep 136, decided July 9, 2004, at [111].
208
Ibid. at [109].
209
Ibid. at [110]. The scope of modern understandings of jurisdiction – including that based
on any of effective territorial control, being under a state’s authority and personal control,
or subject to a state’s exercise of public powers abroad – is discussed in detail in
Chapter 3.1.1.
210
In Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
ibid., for example, the analysis of the International Court of Justice seems to have given

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 4.1 right to enter a nd remain in an asylum state 355

liability for visa controls set by a putative transit state – for example, the 2015
visas imposed by Ecuador on Cubans seeking to use Ecuador as a stepping
stone to seeking protection in the United States.211 Because a transit state – like
a country of destination – does not exercise jurisdiction over the would-be
refugee who has yet to depart her home country, the condition precedent for
invocation of Art. 12(2) is normally absent. If, however, there were evidence
that the transit or destination state imposing a visa requirement thereby
contributed significantly to an effort by the country of origin to stymie depart-
ure, emerging law suggests that those states could in some circumstances be
held responsible for aiding or assisting the country of origin to breach its duty
under Art. 12(2).212

4.1.2 Nature of the Duty of Non-refoulement

The weakness of the duty of non-refoulement as an answer to measures that
trap would-be refugees inside their own countries aside,213 Art. 33 is otherwise
quite a robust form of protection.214 In particular, the duty of non-refoulement
has ordinarily been understood to constrain not simply ejection from within a
state’s territory, but also non-admittance at its frontiers.215 Indeed, the 1933

real weight to the Israeli physical presence in the Occupied Territories. “The [Human
Rights] Committee, in its concluding observations after examination of the report,
expressed concern at Israel’s attitude and pointed ‘to the long-standing presence of
Israel in [the occupied] territories, Israel’s ambiguous attitude towards their future status,
as well as the exercise of effective jurisdiction by Israeli security forces therein’ (CCPR/C/
79/Add.93, at [10]). In 2003 in face of Israel’s consistent position, to the effect that ‘the
Covenant does not apply beyond its own territory, notably in the West Bank and Gaza . . .,’
the Committee reached the following conclusion: ‘in the current circumstances, the
provisions of the Covenant apply to the benefit of the population of the Occupied
Territories, for all conduct by the State party’s authorities or agents in those territories
that affect the enjoyment of rights enshrined in the Covenant and fall within the ambit of
State responsibility of Israel under the principles of public international law’ (CCPR/CO/
78/ISR, at [11]). In conclusion, the Court considers that the International Covenant on
Civil and Political Rights is applicable in respect of acts done by a State in the exercise of its
jurisdiction outside its own territory”: ibid. at [110]–[111].
211
See text at note 96.
212
The relevant legal arguments, drawing on Art. 16 of the International Law
Commission’s Articles on State Responsibility, are outlined in detail below at notes
440–472.
213
See Chapter 4.1.1.
214
“This is a remarkable provision. Perhaps it is unprecedented in the history of our country’s
enactments. It places the prohibition it enacts above any contrary provision . . . That is a
powerful decree”: Alex Ruta v. Minister of Home Affairs, [2018] ZACC 52 (SA CC, Dec. 20,
2018), at [24].
215
See e.g. UNHCR Executive Committee Conclusion No. 6, “Non-refoulement” (1977), at
[(c)], acknowledging “the fundamental importance of the observance of the principle of
non-refoulement – both at the border and within the territory of a State.” “Today, there

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 356 4 r i g ht s of re f u g e e s p hy s i c a l l y p r e s e n t

Convention – from which the present duty of non-refoulement was derived –

explicitly codified non-admittance as an aspect of refoulement.216 This com-
prehensive definition corresponds to the authority enjoyed by police in some
states summarily to remove aliens or to refuse them entry (refoulement) under
a process distinct from formal expulsion (addressed by Art. 32217 of the
Convention).218 It was clear to the drafters that summary refusals (refoule-
ment) and formally sanctioned removals (expulsion or deportation) could
equally undermine the sheltering of refugees from forcible return.219
The original purpose of the prohibition of refoulement was therefore to
ensure that those states in which summary removal or denial of access was
authorized by law not be allowed to rely on such provisions to subvert the
general limitations on the expulsion of refugees.220 If the minority of countries
that authorized refoulement were required to temper the application of such
systems in relation to refugees, all governments would face comparable obli-
gations: refugees would be able to access the state’s territory, and their removal

appears to be ample support for the conclusion that Article 33(1) of the Refugee
Convention is applicable to rejection at the frontier of a potential host state”: G. Noll et
al., “Study on the Feasibility of Processing Asylum Claims Outside the EU Against the
Background of the Common European Asylum System and the Goal of a Common
Asylum Procedure” (2002), at 36. See generally P. Mathew, “Australian Refugee
Protection in the Wake of the Tampa,” (2002) 96(3) American Journal of International
Law 661 (Mathew, “Tampa”), at 667, drawing support for this proposition from the
General Assembly’s Declaration on Territorial Asylum; and Lauterpacht and Bethlehem,
“Non-refoulement,” at [76]–[86].
216
1933 Refugee Convention, at Art. 3. 217 See Chapter 5.1.
218
“[T]he term ‘expulsion’ was used when the refugee concerned had committed some
criminal offence, whereas the term ‘refoulement’ was used in cases when the refugee was
deported or refused admittance because his presence in the country was considered
undesirable”: Statement of Mr. Cuvelier of Belgium, UN Doc. E/AC.32/SR.21, Feb. 2,
1950, at 5. See also Goodwin-Gill and McAdam, Refugee in International Law, at 201: “In
the context of immigration control in continental Europe, refoulement is a term of art
covering, in particular, summary reconduction to the frontier of those discovered to have
entered illegally and summary refusal of admission to those without valid papers.”
219
“The legal nature of the prohibited act is . . . not relevant, whether it is labeled deportation,
extradition, non-admission at the border, maritime interception, transfer, or rendition”:
Chetail, International Migration Law, at 187.
220
“Sir Leslie Brass (United Kingdom) concluded from the discussion that the notion of
refoulement could apply to (a) refugees seeking admission, (b) refugees illegally present in
a country, and (c) refugees admitted temporarily or conditionally. Referring to the practice
followed in his own country, Sir Leslie stated that refugees who had been allowed to enter
the United Kingdom could be sent out of the country only by expulsion or deportation.
There was no concept in these cases corresponding to that of refoulement . . . Mr.
Ordonneau (France) considered that the inclusion in the draft convention of a reference
to the concept of refoulement would not in any way interfere with the administrative
practices of countries such as the United Kingdom, which did not employ it, but that its
exclusion from the draft convention would place countries like France and Belgium in a
very difficult position”: UN Doc. E/AC.32/SR.21, Feb. 2, 1950, at 5.

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 4.1 right to enter a nd remain in an asylum state 357

could only be effected in accordance with the general rules governing the
expulsion or deportation of refugees.221

4.1.2.1 Non-admittance
In line with this general understanding, the debates of the Ad Hoc Committee
on Statelessness and Related Problems show a clear commitment to the basic
principle that peremptory non-admittance or ejection is normally impermis-
sible. The United States vigorously argued that
[w]hether it was a question of closing the frontier to a refugee who asked
admittance, or of turning him back after he had crossed the frontier, or
even of expelling him after he had been admitted to residence in the
territory, the problem was more or less the same. Whatever the case
might be, whether or not the refugee was in a regular position, he must
not be turned back to a country where his life or freedom could be
threatened.222

While the English translation of non-refoulement varied from “undertakes not

to turn back” to “undertakes not to expel or turn back,”223 and ultimately to
“undertakes not to expel or return,” the intention to proscribe both non-
admittance and ejection from within a state’s territory was constant.224
Indeed, the Belgian co-sponsor of the text adopted by the Committee empha-
sized that the duty had been expanded to an undertaking “not to expel or in any
way [return] refugees [emphasis added]”225 precisely to ensure that it was
understood that the article “referred to various methods by which refugees
could be expelled, refused admittance or removed.”226 As observed by the High
Court of Kenya,
221
“The Chairman suspended the discussion, observing that it had indicated agreement on
the principle that refugees fleeing from persecution . . . should not be pushed back to the
arms of their persecutors”: Statement of Mr. Chance of Canada, ibid. at 7. See generally
Chapter 5.1 on the question of the prohibition of formal expulsion or deportation of
refugees.
222
Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.20, Feb. 1, 1950, at
11–12. See also Statement of Mr. Robinson of Israel, ibid. at 12–13: “The article must, in
fact, apply to all refugees, whether or not they were admitted to residence; it must deal with
both expulsion and non-admittance.”
223
Ibid. at 12.
224
The substitution of “return” for “turn back” was intended to be a matter of style only:
Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.22, Feb. 2, 1950, at 20.
225
UN Doc. E/AC.32/L.25, Feb. 2, 1950, at 1. In the draft convention finalized by the Working
Group, the undertaking was rephrased to require states not to “expel or return, in any
manner whatsoever, a refugee to the frontiers of territories where his life or freedom would
be threatened [emphasis added]”: UN Doc. E/AC.32/L.32, Feb. 9, 1950, at 12.
226
Statement of Mr. Cuvelier of Belgium, UN Doc. E/AC.32/SR.22, Feb. 2, 1950, at 20. Thus,
“[i]f a refugee arrives directly from the country of persecution it does not make any
difference whether he or she is ejected at the land border of a country adjacent to the
country of persecution, sent there by plane from the airport after arrival, or sent back after

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 358 4 r i gh t s of ref ug ees physic ally present

The prohibition of refoulement to a danger of persecution under inter-

national refugee law is applicable to any form of forcible removal, includ-
ing deportation, expulsion, extradition, informal transfer or “renditions,”
and non-admission at the border . . . This is evident from the wording of
Article 33(1) . . . which refers to expulsion or return (refoulement) “in any
manner whatsoever.”227

The European Court of Human Rights has similarly noted that “[i]t is crucial to
observe . . . that the prohibition of refoulement includes the protection of
asylum-seekers in cases of both non-admission and rejection at the border.”228
As such, the duty of non-refoulement is infringed by the actions of government
officials which are intended to force refugees back to their country of origin.
This includes formal policies authorizing force to deny entry to refugees, such
as the Namibian policy of shooting at Angolan refugees seeking to enter its
territory.229 Even if not part of a formal policy, a government is moreover
responsible for actions taken by its agents at the border, including for example
the attacks on Syrian refugees by Turkish border guards,230 the shots fired at
African refugees by Egyptian security forces,231 and the launching of smoke
canisters and rubber bullets at refugees swimming toward Spain’s Ceuta
enclave by the Spanish Guardia Civil.232 Indeed, the same is true when a
state encourages private citizens to drive refugees away, as was the case when
Hungary conscripted “border hunters” to threaten refugees arriving at its
frontiers.233
While less immediately deadly, the decisions by Zaïre and Tanzania to close
their borders to refugees fleeing conflicts between Hutus and Tutsis;234 the
more recent decisions of Nicaragua, Costa Rica, and Panama to close their
borders to Cubans seeking to travel in search of protection in the United
States;235 as well as the Macedonian, Serbian, Croatian, and Slovenian border
closures in order to shut down the “Balkan route” to asylum,236 all engage the

admission to the territory and subsequent expulsion or removal. In each of these cases, the
result is the same: the refugee will be sent back to the country of persecution and thus
returned ‘to the frontiers’ of such country”: Kälin, “Article 33, para. 1,” at 1367.
227
Kenya National Commission on Human Rights v. Attorney General, Constitutional
Petition No. 227 of 2016 (Ken. HC, Feb. 9, 2017), at 18.
228
ND and NT v. Spain, Dec. Nos. 8675/15 and 8697/15 (ECtHR, Feb. 13, 2020), at [178].
229
See text at note 25. 230 See text at note 26. 231 See text at note 27.
232
See text at note 28. Speaking more generally to practices at this Spanish enclave, the
European Court of Human Rights insisted that “[w]ith regard to Contracting States like
Spain whose borders coincide, at least partly, with external borders of the Schengen area, the
effectiveness of Convention rights requires that these States make available genuine and
effective access to means of legal entry, in particular border procedures for those who have
arrived at the border”: ND and NT v. Spain, Dec. Nos. 8675/15 and 8697/15 (ECtHR, Feb. 13,
2020), at [209].
233
See text at note 73. 234 See text at note 11. 235 See text at notes 18–20.
236
See text at note 21.

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 4.1 right to enter and remai n in an asylum state 359

prohibition of refoulement. Efforts short of complete border closures that have

the same effect – for example, the erection by South Africa237 and Hungary238
of razor-wire fences – can also run up against the requirements of Art. 33. In all
of these cases,
[a] good faith understanding of the duty of non-refoulement requires states
to provide reasonable access and opportunity for a protection claim to be
made. While the mere existence of a natural barrier (e.g. a mountain range
or river) does not in and of itself amount to an act of refoulement, a state
may not lawfully construct or maintain a man-made barrier that fails to
provide for reasonable access to its territory by refugees.239

In short, because the duty of non-refoulement requires states to refrain from

turning back refugees “in any manner whatsoever,” it is the consequence of
exposing a refugee to the risk of being persecuted that matters – not how a
state’s actions give rise to that prohibited risk. On the other hand, the actions
undertaken must in fact pose the risk of return to persecution in order to fall
afoul of Art. 33. As such, the erection of the Calais barrier between the UK and
France,240 which simply compels refugees to have their claims assessed in
France or elsewhere in Europe, was not an act of refoulement.241

4.1.2.2 Ejection

While efforts to push refugees back at the frontier are perhaps the more
common variant of refoulement, states today continue to expel refugees already
inside their borders. The forced return of recognized Uzbek refugees from both
Kyrgyzstan242 and Ukraine,243 the luring of refugees into trucks that took them
back to Rwanda,244 the 2009 “rapid expulsion” of Rwandan refugees by Burundi
without any assessment of protection needs,245 and the busing by Algeria of sub-
Saharan refugee claimants across its southern border246 are blatant examples of
refoulement by way of ejection. And while the risk was less immediate, the towing of
a boat with refugees aboard by Australia back from its territorial waters to
Indonesia, knowing that Indonesia has no mechanism to identify or protect
refugees,247 was simply an indirect means of engaging in the same prohibited
conduct. The fact that an increasing number of such ejections results from the
application of pressure by the refugees’ country of origin – in particular, by China in
237
See text at note 22. 238 See text at note 23.
239
“The Michigan Guidelines on Refugee Freedom of Movement,” (2017) 39 Michigan
Journal of International Law 1, at [10].
240
See text at note 24.
241
The fact that many unaccompanied minor refugees seeking reunification with family
members in the United Kingdom were present in the Calais “jungle” raises a distinct
legal concern: see Chapter 4.6.
242
See text at note 53. 243 See text at note 54. 244 See text at note 55.
245
See text at note 62. 246 See text at note 68. 247 See text at note 56.

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 360 4 ri g h t s of r e f u g e es ph y s i c a l l y p r e s e nt

relation to Tibetan and Uighur refugees,248 but also Tajik abuse of extradition
procedures in order to secure the return of activists who had sought protec-
tion in Russia, Moldova, and Belarus249 – makes the reality of risk especially
clear.
Nor is a government insulated from liability when, rather than taking action
through its own officials, it engages or encourages non-state actors to drive
refugees back to their countries of origin. Sometimes such private actions are
merely accessories to traditional migration enforcement systems abridging the
duty of non-refoulement – as was the case, for example, when Malaysia
deputized a volunteer corps to apprehend undocumented persons, including
refugees,250 or when Greek police handed Turkish asylum-seekers over to
armed men who violently removed them to the Turkish side of the border.251
In other instances, however, the non-state actors are themselves the direct
enforcers. Because governments are liable for the actions they promote and
support, Art. 33 was clearly infringed when Thailand encouraged fishermen to
push back Vietnamese refugees,252 and when Guinean President Conté
encouraged his citizens to form militia groups to force refugees from Liberia
and Sierra Leone to go home.253 Indeed, as the Supreme Court of India has
affirmed, governments have an affirmative duty to take such action as is
necessary to avoid the refoulement of refugees instigated and carried out by
third parties. Faced with a complaint that Chakma refugees were being sub-
jected to an economic blockade by a student vigilante group intended to drive
them out, the Court issued an unambiguous and comprehensive order to both
state and national authorities to take whatever action was required to bring the
student actions to an end.254

4.1.2.3 “Voluntary Repatriation”

Nor is it the case that an act amounts to refoulement only if it is clearly designed
to block the arrival, or to bring about the return, of refugees. Refoulement may
also be effected by a very wide range of actions taken which indirectly achieve

248
See text at note 59. 249 See text at note 58. 250 See text at note 72.
251
See text at note 57. 252 See text at note 69. 253 See text at notes 70–71.
254
While India is not a party to the Refugee Convention or Protocol, the Court relied on Art.
21 of the Indian Constitution which establishes a guarantee of life and personal liberty for
all. Its order was that “the State of Arunachal Pradesh shall ensure that the life and
personal liberty of each and every Chakma residing within the State shall be protected
and any attempt to forcibly evict or drive them out of the State by organised groups, such
as the [student vigilante group], shall be repelled, if necessary by requisitioning the service
of paramilitary or police force, and if additional forces are considered necessary to carry
out this direction, the [State] will request the . . . Union of India to provide such additional
force, and [the national government] shall provide such additional force as is necessary to
protect the lives and liberty of the Chakmas”: National Human Rights Commission v. State
of Arunachal Pradesh, (1996) 83 AIR 1234 (In. SC, Jan. 9, 1996), at [21].

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 4.1 ri g h t t o en t er a n d r emai n i n an asylu m state 361

the same prohibited results. This is because the duty under Art. 33 is to avoid
certain consequences (namely, return to the risk of being persecuted), whatever
the nature of the actions that lead to that result.255 For example, the Hong
Kong High Court has observed that denial to refugees of the right to work “if
carried out to extreme and without meaningful exception . . . could even
amount to constructive refoulement.”256
Of particular concern, refoulement frequently arises in practice when refu-
gees are coerced to accept “voluntary repatriation.”257 At least where refugees
are left with no real option but to leave, de facto enforced departure is a form of
refoulement. As such, Egypt engaged in blatant refoulement when its prisoner
guards beat refugees in their custody to “persuade” them to agree to be
“voluntarily” repatriated to Eritrea.258 More commonly, states “promote”
repatriation by denying the necessities of life to refugees, effectively starving
them out – as was the case when Rwanda threatened to withdraw camp services
from Congolese refugees who failed to “choose” to repatriate,259 when
Macedonia cut off basic sanitary facilities and services to induce Kosovar
refugees to go home,260 and when Bangladesh in collaboration with the
UNHCR cut off food and medical services to Rohingya refugees – often
accompanied by threats of beatings or jail time – until they “agreed” to go
back to Burma.261 Neither the indirectness of the removals consequent to such
deprivations of core rights nor the too-frequent acquiescence of the UNHCR
or other international agencies in such programs alters the fundamentally
involuntary nature of much so-called “voluntary” repatriation, making it the
most common ejection-based form of refugee refoulement. As courts in the
United States held in enjoining American threats and subterfuge undertaken to
force Salvadoran refugees to go home, the formal and legalized nature of acts
which are in substance coercive does not in any sense render them lawful.262

255
See R v. Secretary of State for the Home Department, ex parte Yogathas, [2002] UKHL
36 (UK HL, Oct. 17, 2002), per Lord Hope at [47]. Thus, for example, the right of a state
to effect the extradition of a refugee is subject to compliance with the duty of non-
refoulement: Lauterpacht and Bethlehem, “Non-refoulement,” at [71]–[75].
256
MA v. Director of Immigration, Dec. No. HCAL 10/2010, Constitutional and
Administrative Law List No. 73 of 2010 (HK HC, Jan. 6, 2011), at [82]. See generally
P. Mathew, Reworking the Relationship between Asylum and Employment (2012).
257
This term of art, derived from Art. 8(c) of the Statute of the UNHCR (GA Res. 428(V),
Dec. 14, 1950), is not a basis for the cessation of refugee status, but only a constraint on the
actions which the UN refugee agency may itself undertake: see Chapter 7.2 and Hathaway
and Foster, Refugee Status, at 472 ff. Sadly, the frequent conflation of the agency’s mandate
with state responsibilities under the Refugee Convention has created a space within which
protection is in practice withdrawn for reasons not authorized by the Convention: ibid.
258
See text at note 89. 259 See text at note 84. 260 See text at note 85.
261
See text at note 86.
262
In Orantes-Hernandez v. Meese, (1988) 685 F. Supp. 1488 (US DCCa, Apr. 29, 1988),
affirmed as Orantes-Hernandez v. Thornburgh, (1990) 919 F. 2d 549 (US CA9, Nov. 29,
1990), the Immigration and Naturalization Service was found to have engaged in a

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On the other hand, the UNHCR and Pakistan were not acting contrary to Art.
33 when they offered Afghan families the option to leave protection in Pakistan
in exchange for a $400 cash payment.263 Despite the resemblance to blackmail,
the voluntariness of return consequent to such an offer of compensation was
only clearly compromised when Pakistan followed up on the offer by closing
Afghan schools and restricting the renewal of identity documents264 – thereby
effectively leaving many refugees with no real choice but to repatriate. The
Australian offer of $A10,000 to Rohingya, Somali, and Sudanese refugees
detained on Manus Island who were “willing” to go home265 was similarly
compromised; not only had those refugees been denied any meaningful protec-
tion option, but the offer of financial support was accompanied by a threat from
the government of Papua New Guinea that action would be taken to drive out
those who refused to cooperate.266 As such, what might at first glance appear to
have been simply a (lawful) incentive was tainted by being part of an overall plan
that left refugees with no meaningful choice about whether to remain or go
home – thereby constituting a component of a plan of orchestrated refoulement.

4.1.2.4 Failure to Identify Refugees

Art. 33 may be infringed not only by fairly blunt measures of the kind
considered to this point, but also by “any measure, whether judicial or admin-
istrative, which secures the departure of an alien.”267 In particular, the duty of
non-refoulement can be infringed by the refusal to consider a claim to refugee
status, knowing that such a refusal leaves the refugee exposed to removal on
general immigration grounds.268 States sometimes simply refuse to assess
refugee status, as was the case for pro-democracy Chinese dissidents barred
from assessment procedures in Japan,269 for Indonesians arrested and

persistent pattern of illegal conduct and enjoined from further harassment of Salvadoran
refugees.
263
See text at note 90. 264 See text at notes 87–88. 265 See text at note 91.
266
See text at note 91.
267
G. Goodwin-Gill, The Refugee in International Law (1996), at 122, adopted in Re S, [2002]
EWCA Civ 843 (Eng. CA, May 28, 2002). The same language is contained in Goodwin-Gill
and McAdam, Refugee in International Law, at 206.
268
See e.g. UNHCR Executive Committee Conclusion No. 6, “Non-refoulement” (1977), at
[(c)]: “The Executive Committee . . . [r]eaffirms the fundamental importance of the
observance of the principle of non-refoulement . . . of persons who may be subjected to
persecution if returned to their country of origin irrespective of whether or not they have
been formally recognized as refugees.” See also UNHCR Executive Committee
Conclusions Nos. 79, “General Conclusion on International Protection” (1996), at [(j)],
and 81, “General Conclusion on International Protection” (1997), at [(i)], ibid., insisting
that the duty of non-refoulement inheres “whether or not they have been formally granted
refugee status.” The notion that access to Art. 33 could be limited to persons formally
recognized as refugees has been described simply as “devoid of merit”: Lauterpacht and
Bethlehem, “Non-refoulement,” at [89].
269
See text at note 74.

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 4.1 ri g h t t o en t er an d r emai n i n an asylu m state 363

deported by Malaysian police while waiting to make refugee status appoint-

ments at the office of the UNHCR,270 and for Somalis sent home by Saudi
Arabia with no consideration of their claims to refugee status.271 A risk of
refoulement also arises where, as in the United States272 and South Africa,273
responsibility to identify refugees is entrusted to officials such as border guards
or detention center officers who do not reliably carry out those responsibilities.
Nor can states avoid the risk of refoulement by reclassifying persons who are in
fact refugees without individuated assessment on the merits, as Spain has
attempted to do by labeling of persons arriving at Ceuta and Melilla as
“economic migrants” with no right to lodge a protection request,274 as Israel
does by branding Eritrean and Sudanese refugees as “infiltrators” with only a
truncated ability to access protection,275 or under the Chinese policy of
classifying all North Korean refugees as “defectors” not entitled to
protection.276
There is also no basis for a refusal to consider the independent refugee status
of children on the grounds that children should be treated simply as wards of
their parents.277 To the contrary, as the English Court of Appeal has observed,
the duty to protect refugees – including children who are refugees – may well
trump other considerations, including the enforcement of child custody
orders.278 And while the failure to establish an appeal or review of a negative

270
See text at note 75. 271 See text at note 77. 272 See text at note 79.
273
See text at note 80. 274 See text at note 76. 275 See text at note 78.
276
See text at note 61. In response to China’s refusal to address the refugee claims of North
Koreans, the United States Senate passed a resolution in which it called upon China to
make “genuine efforts to identify and protect the refugees among the North Korean
migrants encountered by Chinese authorities, including providing the refugees with a
reasonable opportunity to petition for asylum”: S. Con. Res. 114, 107th Congress (2002), at
para. 1(A), cited in S. Murphy, “Contemporary Practice of the United States relating to
International Law,” (2002) 96(3) American Journal of International Law 706.
277
As Pobjoy observes, “[t]here has been a general reluctance amongst states to assess
individually the protection claims of children, particularly where the child arrives as
part of a family. This is despite the fact that as a matter of principle a child, irrespective
of age, and irrespective of whether accompanied or unaccompanied, is entitled to have her
claim for Convention refugee status adjudicated prior to removal”: J. Pobjoy, The Child in
International Refugee Law (2017) (Pobjoy, Child in Refugee Law), at 52.
278
“Having regard to the rule as to the paramountcy of the child’s interests . . . I would
respectfully suppose that a family judge would at the very least pay very careful attention
to any credible suggestion that a child might be persecuted if he were returned to his country
of origin or habitual residence before making any order that such a return should be
effected”: Re S, [2002] EWCA Civ 843 (Eng. CA, May 28, 2002). To similar effect,
UNHCR is of the view that “[t]he child should not be refused entry or returned at the
point of entry . . . As soon as a separated child is identified, a suitably qualified guardian or
adviser should be appointed to assist him/her at all stages. Interviews should be carried out
by specially trained personnel”: UNHCR, “Asylum Processes,” UN Doc. EC/GC/01/12, May
31, 2001 (UNHCR, “Asylum Processes”), at [46]. See generally Convention on the Rights of
the Child, 1577 UNTS 3 (UNTS 27531), adopted Nov. 20, 1989, entered into force Sept. 2,

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 364 4 ri g ht s of re f u g e es p hy s i c a l l y p r e s e n t

refugee status determination does not necessarily infringe Art. 33, the fact that
the duty of non-refoulement is binding right up to the actual moment of
return279 requires that the system have the capacity to take account of new
or previously unrecognized facts280 before return is effected.281 It was thus
inappropriate for the United Kingdom to persist in the removal of refugee
claimants from Zimbabwe, even as its own Foreign Office warned of emerging
risks there.282 Most important, as the South African Constitutional Court has
made clear, there must be a dependable mechanism to guard against removal
until the appeal or review is considered:

1990, at Art. 22(1): “States Parties shall take appropriate measures to ensure that a child who
is seeking refugee status or who is considered a refugee in accordance with applicable
international or domestic law and procedures shall, whether unaccompanied or accompan-
ied by his or her parents or by any other person, receive appropriate protection and
humanitarian assistance in the enjoyment of applicable rights.”
279
The duty of non-refoulement “continues so long as a refugee (defined by reference to a
well-founded fear of being persecuted for a reason specified in the Convention) is in the
United Kingdom. If a claim for asylum is made by a person, that is to say a claim that it
would be contrary to the United Kingdom’s obligations for him to be removed from or
required to leave the United Kingdom, that person cannot be removed from or required to
leave the United Kingdom pending a decision on his claim, and, even if his asylum claim is
refused, so long as an appeal is being pursued”: R (Senkoy) v. Secretary of State for the
Home Department, [2001] EWCA Civ 328 (Eng. CA, Mar. 2, 2001), at [15].
280
“The obligation of the United Kingdom under the Convention is not to return a refugee . . . to
a country where his life or freedom would be threatened for any reason specified in the
Convention. That obligation remains binding until the moment of return . . . It would in my
judgment undermine the beneficial object of the Convention and the measures giving effect
to it in this country if the making of an unsuccessful application for asylum were to be treated
as modifying the obligation of the United Kingdom or depriving a person of the right to make
a fresh claim for asylum . . . Any other consideration would in my view be offensive to
common sense. However rarely they may arise in practice, it is not hard to imagine cases in
which an initial claim for asylum might be made on insubstantial, or even bogus, grounds,
and be rightly rejected, but in which circumstances would arise or come to light showing a
clear and serious threat of a kind recognised by the Convention . . . A scheme of legal
protection which could not accommodate that possibility would in my view be seriously
defective”: R v. Secretary of State for the Home Department, ex parte Onibiyo, [1996] QB 768
(Eng. QBD, Mar. 5, 1996), cited with approval in R v. Secretary of State for the Home
Department, ex parte Nassir, The Times (Dec. 11, 1998) (Eng. CA, Nov. 23, 1998).
281
Thus, it was determined that the duty of non-refoulement would be infringed if consider-
ation were not given to new grounds of claim advanced after rejection of the original
claim: Esnat Maureen Makumba v. Minister of Home Affairs, Dec. No. 6183/14 (SA HC,
Dec. 3, 2014). In considering a change of rules pursuant to which persons assigned to the
UK’s “fast track” system would be able to pursue an appeal from outside the country, the
Court of Appeal noted that “[i]t is the prospect of removal that is [the refugees’] principal
concern. If their fears are well-founded, the fact that they can appeal after they have been
returned to the country where they fear persecution is scant consolation”: R (L) v.
Secretary of State for the Home Department, [2003] EWCA Civ 25 (Eng. CA, Jan. 24,
2003), at [54].
282
See text at note 81.

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 4.1 ri g h t t o en t er an d r emai n i n an asylu m state 365

If the asylum seeker was returned, and if it was later determined in the
judicial review that the asylum seeker had met the requirements for
refugee status . . . the principle of non-refoulement would have been
transgressed . . .
It is cold comfort to say – between the exhaustion of internal remedies and
the outcome of judicial review – [that] an asylum seeker may seek and obtain
interim protection by means of an urgent application to court. Litigation
being what it is, there is no guarantee that the approach to court will succeed;
the urgent application may be dismissed on a technicality or any other legally
cognisable basis. That would then expose the asylum seeker to the risk of
return . . . That is a breach of the principle of non-refoulement.283

More generally, the risk of refoulement can arise from the simple inadequacy
of assessment procedures. For example, the English Court of Appeal found a
British expedited asylum procedure to set “time limits [that] are so tight as to
make it impossible for there to be a fair hearing of appeals in a significant number
of cases . . . The system is therefore structurally unfair and unjust”284 – raising, of
course, the specter of the wrongful rejection of claims as “unfounded.” The
evolving practice of contracting out status assessment to less well-resourced
and relatively inexperienced third countries – as the United States did with
Jamaica and the Turks and Caicos Islands during the 1990s,285 and as Australia
has done with Nauru and Papua New Guinea286 – magnifies the risk of refoule-
ment. Because such cooperation is designed to “prevent and deter access to
statutory and judicial asylum safeguards in the country responsible,”287 foreign
processing mechanisms often fail to ensure protection of the refugees’ acquired
rights and at times result in their return to the country of origin.288

4.1.2.5 International Zones and Excision

Art. 33 may also be breached when a state creates a legal ruse in order to avoid
formal acknowledgment of the arrival of a refugee.289 Some states persist in
283
Cishahayo Saidi v. Minister of Home Affairs, Dec. No. CCT 107/17 (SA CC, Apr. 24, 2018),
at [25], [30]. Similarly, the Court of Justice of the European Union determined that the
duty to provide an effective remedy required “automatic suspension of enforcement of the
measure authorising [the refugee claimant’s] removal” while review of a negative decision
in his case was sought from the Council of State: X v. Netherlands, Dec. No. C-175/17
(CJEU, Sept. 26, 2018), at [32].
284
Lord Chancellor v. Detention Action, [2015] EWCA Civ 840 (Eng. CA, July 29, 2015), at
[45]; see also Refugee Council, “Accelerated Procedure: United Kingdom,” Asylum
Information Database.
285
See text at note 82. 286 See text at note 83.
287
A. Francis, “Bringing Protection Home: Healing the Schism between International
Obligations and National Safeguards Created by Extraterritorial Processing,” (2008)
20(2) International Journal of Refugee Law 273, at 275; see also ibid. at 280–281.
288
Ibid. at 273.
289
“As a matter of fact, anyone presenting themselves at a frontier post, port, or airport will
already be within State territory and jurisdiction; for this reason, and the better to retain

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 366 4 ri g ht s of r e f u g e es p hy s i c a l l y p r e s e n t

establishing so-called “international zones” in which they purport to be able to

act without regard for their international legal duties – for example, in the
transit area of Moscow’s Sheremetyevo Airport,290 or at the so-called “no
man’s land” just inside Hungary’s border with Serbia.291 An even more poign-
ant example is provided by Australia’s refusal to consider the refugee status of
persons present in islands or other parts of its territory on the grounds that its
domestic law deems that territory to have been “excised” or otherwise rendered
outside Australian immigration jurisdiction.
In truth, all such places – and indeed the state’s territorial sea – are clearly
part of a state’s territory.292 No form of words, and no domestic law, can
change that fact293 – as was affirmed by the European Court of Human Rights
in the seminal Amuur decision.294 There is thus no international legal differ-
ence between opting not to consider the refugee status of persons present in
“international zones” or “excised territory” and refusing to consider the refu-
gee status of persons clearly acknowledged to be on the state’s territory. Where
the refusal to process a refugee claim results, directly or indirectly, in the
refugee’s removal to face the risk of being persecuted, Art. 33 has been
contravened.

“Protection Elsewhere” (“First Country of Arrival”

4.1.2.6
and “Safe Third Country”) Regimes
Refoulement may also result from the application of “protection elsewhere”295
rules. These rules constrain the traditional prerogative of refugees to decide
where they wish to seek protection,296 whatever the particular circumstances

sovereign control, States have devised fictions to keep even the physically present alien
technically, legally, unadmitted”: Goodwin-Gill and McAdam, Refugee in International
Law, at 207.
290
See text at note 129. 291 See text at note 128. 292 See Chapter 3.1.2.
293
As noted by the House of Lords in the case of a refugee claimant bound for the United
States but intercepted at London’s Heathrow Airport, it would be “artificial in the extreme
to deny [the claimant] the protection to which she would have been entitled had she
reached the United States just because she was detected at Heathrow before she boarded
her flight to Washington. The situation is one where the United Kingdom, having asserted
jurisdiction over her because she was present here, must assume responsibility for afford-
ing her the benefit of [refugee protection]”: R v. Asfaw, [2008] UKHL 31 (UK HL, May 21,
2008), at [58].
294
“The Court notes that even though the applicants were not in France within the meaning
of the Ordinance of 2 November 1945, holding them in the international zone of Paris-
Orly Airport made them subject to French law. Despite its name, the international zone
does not have extraterritorial status”: Amuur v. France, [1996] ECHR 25 (ECtHR, June 25,
1996), at [52].
295
This term originates in the “Michigan Guidelines on Protection Elsewhere,” (2007) 28
Michigan Journal of International Law 207.
296
See e.g. UNHCR Executive Committee Conclusions Nos. 15, “Refugees Without an
Asylum Country” (1979), and 58, “Problem of Refugees and Asylum-Seekers Who

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 4.1 r ight to enter and remain in an asylum state 367

or preferences of the refugee. Under both the European Dublin Regulation and
the Canada–US Memorandum of Understanding, for example, the “first coun-
try of arrival” for a given refugee assumes all responsibility for assessment of
the claim and delivery of protection. Indeed, under so-called “safe third
country” rules – a cousin of the “first country of arrival” notion – a refugee
may be required to have his or her claim to refugee status assessed in a
designated third country, even if the refugee has never passed through that
state. The country to which removal is effected, and that country alone, is
deemed responsible to evaluate the refugee claim and to provide protection as
required.
Interestingly, the risk inherent in such measures was explicitly considered
by the drafters of the Convention. At the Conference of Plenipotentiaries, the
Swedish representative introduced a proposal to frame the duty of non-
refoulement in a way that would “cover cases where refugees were expelled
to a country where their life would not be directly threatened, but where they
would be threatened by further expulsion to a country where they would be in
danger.”297 A consensus evolved in opposition to the proposal, for two basic
reasons.
First, states rejected the Swedish initiative because they wanted to remain free
to expel refugees to countries in which there was no danger of being perse-
cuted,298 at least insofar as the state to which removal would be effected had
adhered to the Convention.299 But second, they felt that the Swedish amendment
was not necessary, since “if such expulsion presented a threat of subsequent
forcible return to the country of origin, the life and liberty of the refugee in
question were endangered” by the removal to the intermediate state – thus
clearly abridging the duty of non-refoulement. The relevant issue was said to

Move in an Irregular Manner from a Country in Which They Had Already Found
Protection” (1989).
297
Statement of Mr. Petren of Sweden, UN Doc. A/CONF.2/SR.16, July 11, 1951, at 4.
Specifically, the proposal was that “[n]o Contracting States shall expel or return a refugee
in any manner whatsoever to the frontiers of territories where his life or freedom would be
threatened on account of his race, religion, nationality, membership of a particular social
group, or political opinion, or where he would be exposed to the risk of being sent to a
territory where his life or freedom would thereby be endangered [emphasis added]”: UN
Doc. A/CONF.2/70, July 11, 1951.
298
“It should, however, be pointed out that the paragraph was concerned with a special case,
namely the expulsion or turning back into a territory where the refugee’s life or liberty was
in danger. The general case was that of expulsion to any country other than that in which
the refugee would be threatened”: Statement of Mr. Ordonneau of France, UN Doc. E/
AC.32/SR.20, Feb. 1, 1950, at 13.
299
“The Swedish amendment did not state that it related to countries which did not grant the
right of asylum. Such countries were not necessarily those in which persecution occurred.
If the States in question were signatories to the Convention, the question would not arise,
because refugees would not be returned to countries where they risked being persecuted”:
Statement of Mr. Rochefort of France, UN Doc. A/CONF.2/SR.16, July 11, 1951, at 10.

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 368 4 ri g ht s of re f u g e e s p hy s i c a l l y p r e s e n t

be the foreseeability of the ultimate consequences of the initial expulsion.300 This

clear prohibition of indirect refoulement has been neatly explained by the House
of Lords:
Suppose it is well-known that country A, although a signatory to the
Convention, regularly sends back to its totalitarian and oppressive neigh-
bour, country B, those opponents of the regime in country B who are
apprehended in country A following the escape across the border. Against
that background, if a person arriving in [a state party] from country A
sought asylum as a refugee from country B, assuming he could establish his
well-founded fear of persecution there, it would, it seems to me, be as
much a breach of Article 33 of the Convention to return him to country A
as to country B. The one course would effect indirectly, the other directly,
the prohibited result, i.e. his return “to the frontiers of territories where his
life or freedom would be threatened.”301

Taking account of these understandings, application of the so-called “first

country of arrival” or “safe third country” principles, while not anchored in
the requirements of the Refugee Convention,302 is also not necessarily in
breach of it.303 States declined to assume particularized responsibility for all
who arrive at their borders, and insisted that they retain the liberty to send
refugees onward to a country in which there is no threat of being persecuted.304
The position of the UNHCR on shared protection arrangements has been
somewhat mercurial: initially insisting that “[t]he intentions of the asylum-seeker
300
Statement of Mr. Larsen of Denmark, ibid. at 9–10. This is consistent with the concern of
the French delegation to avoid the imposition of an unduly subjective duty on states: ibid.
at 4.
301
R v. Secretary of State for the Home Department, ex parte Bugdaycay, [1987] AC 514 (UK
HL, Feb. 19, 1987), per Lord Bridge of Harwich at 532D. This approach has been affirmed
in R v. Secretary of State for the Home Department, ex parte Yogathas, [2002] UKHL 36
(UK HL, Oct. 17, 2002).
302
UNHCR, “Summary Conclusions on the Concept of ‘Effective Protection’ in the Context
of Secondary Movements of Refugees and Asylum-Seekers,” Lisbon, Dec. 9–10, 2002,
at [11].
303
As observed in the House of Lords, the Refugee Convention “did not lay down any rules as
to which State ought to provide protection”: R v. Secretary of State for the Home
Department, ex parte Yogathas, [2002] UKHL 36 (UK HL, Oct. 17, 2002), per Lord
Hope at [22].
304
“Article 33(1) cannot . . . be read as precluding removal to a ‘safe’ third country, i.e. one in
which there is no danger . . . The prohibition of refoulement applies only in respect of
territories where the refugee or asylum-seeker would be at risk, not more generally. It does,
however, require that a State proposing to remove a refugee or asylum-seeker undertake a
proper assessment as to whether the third country concerned is indeed safe”: Lauterpacht
and Bethlehem, “Non-refoulement,” at [116]. Importantly, courts have insisted on clear
analysis of the safety of the destination state: NBMZ v. Minister for Immigration and
Border Protection, [2014] FCAFC 38 (Aus. FFC, Apr. 9, 2014) (expressing concern with the
government’s lax undertaking that it “will not necessarily remove a person . . . to the
country in respect of which the non-refoulement obligation exists”: ibid. at [15], [136]).

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 4.1 r ight to enter and remain in an asylum state 369

as regards the country in which he wishes to request asylum should as far as

possible be taken into account,”305 and most specifically “that asylum should not
be refused solely on the ground that it could be sought from another State”;306
softening its view over the years307 to include encouragement of governments to
give “consideration . . . to the possibility of concluding other multilateral or
bilateral Dublin-type agreements” on the grounds that “[s]uch agreements
would serve to enhance predictability, and address concerns regarding unilateral
returns”;308 and more recently, seeming to revert to its original position “that
asylum-seekers and refugees should ordinarily be processed in the territory of the
State where they arrive . . . The primary responsibility to provide protection rests
with the State where asylum is sought.”309 Indeed, the agency has now helpfully
made clear that in its view lawful transfers may only occur between states that are

305
UNHCR Executive Committee Conclusion No. 15, “Refugees Without an Asylum
Country” (1979), at [(h)(iii)].
306
Ibid. at [(h)(iv)].
307
See UNHCR Executive Committee Conclusion No. 58, “Problem of Refugees and Asylum-
Seekers Who Move in an Irregular Manner from a Country in Which They Have Already
Found Protection” (1989), making an exception to the general right of refugees to choose
where to seek protection where they have already found protection in some other state;
UNHCR Executive Committee Conclusion No. 71, “General Conclusion on International
Protection” (1993), acknowledging the value of designated states of protection where
needed to avoid “refugee in orbit” situations; and, in particular, UNHCR Executive
Committee Conclusion No. 74, “General Conclusion on International Protection”
(1994), at [(p)], which “[a]cknowledges the value of regional harmonization of national
policies to ensure that persons who are in need of international protection actually
receive it.”
308
UNHCR, “Asylum Processes,” at [18]. There is reason to believe, however, that there is a
less-than-unanimous consensus favoring this shift. The conclusions of one of UNHCR’s
Global Consultations expert roundtables, for example, posit that “[t]here is no obligation
under international law for a person to seek international protection at the first effective
opportunity. On the other hand, asylum-seekers and refugees do not have an unfettered
right to choose the country that will determine their asylum claim in substance and
provide asylum. Their intentions, however, ought to be taken into account”: UNHCR,
“Summary Conclusions on the Concept of ‘Effective Protection’ in the Context of
Secondary Movements of Refugees and Asylum-Seekers,” Dec. 10, 2002, at [11]. This
Conclusion cites UNHCR Executive Committee Conclusion No. 15, in support; it makes
no reference to UNHCR Executive Committee Conclusions Nos. 58, “Problem of Refugees
and Asylum-Seekers Who Move in an Irregular Manner from a Country in Which They
Have Already Found Protection” (1989); 71, “General Conclusion on International
Protection” (1993); or 74, “General Conclusion on International Protection” (1994).
309
UNHCR, “Guidance Note on bilateral and/or multilateral transfer arrangements of
asylum-seekers,” May 2013. See also UNHCR Regional Representation Canberra,
“Position paper: Bilateral and/or Multilateral Arrangements for Processing Claims for
International Protection and Finding Durable Solutions for Refugees,” Apr. 20, 2016
(relating to the Southeast Asian region); and UNHCR, “Legal considerations on the return
of asylum-seekers and refugees from Greece to Turkey as part of the EU–Turkey
Cooperation in Tackling the Migration Crisis under the safe third country and first
country of asylum concept,” Mar. 23, 2016.

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 370 4 ri g ht s of re f u g e e s p hy s i c a l l y p r e s e n t

bound by relevant refugee and human rights instruments310 and which live up to
their duties in practice, including scrupulous respect for the duty of non-
refoulement.311
As the focus of the most recent UNHCR advice suggests, the main concern
with “first country of arrival” or “safe third country” rules is that the duty of
non-refoulement set by Art. 33 can too easily be compromised by risks arising
from the relatively mechanical way in which shared responsibility is sometimes
implemented.312 While the risk is perhaps higher under the relatively fluid
“safe third country” rules than under formalized responsibility-sharing part-
nerships relying on the “first country of arrival” principle, even the latter can
present the threat of refoulement, as was made clear by the European Court of
Human Rights:
Nor can [a state] rely automatically . . . on the arrangement made in the
Dublin Convention concerning attribution of responsibility between
European countries for deciding asylum claims. Where states establish
international organizations, or mutatis mutandis international agree-
ments, to pursue cooperation in certain fields of activities, there may be
implications for the protection of fundamental rights. It would be incom-
patible with the purpose and object of the Convention if contracting states
were thereby absolved from their responsibility under the Convention . . .
The Court notes the comments of the UNHCR that, while the Dublin
Convention may pursue laudable objectives, its effectiveness may be
undermined in practice by the differing approaches adopted by
Contracting States to the scope of protection offered.313

Keenly aware of this risk, courts have taken the view that while governments
may legitimately begin from the position that partner states will carry out their
responsibilities in good faith,314 this prerogative is balanced against the duty of
310
UNHCR, “Guidance Note on bilateral and/or multilateral transfer arrangements of
asylum-seekers,” May 2013, at [3(iii)].
311
Ibid. at [3(vi)], [4].
312
See e.g. Giuffré, “Readmission Agreements”; and E. Guild, “Asylum and refugees in the
EU: A practitioner’s view of developments,” European Information Service (Dec. 2000), at
215, cited with approval by Lord Hope in R v. Secretary of State for the Home Department,
ex parte Yogathas, [2002] UKHL 36 (UK HL, Oct. 17, 2002).
313
TI v. United Kingdom, [2000] INLR 211 (ECtHR, Mar. 7, 2000). See also R v. Secretary of
State for the Home Department, ex parte Yogathas, [2002] UKHL 36 (UK HL, Oct. 17,
2002), per Lord Hutton, observing that the duty under Art. 33 to avoid the risk of indirect
return to the risk of being persecuted “is applicable . . . notwithstanding that the person is
removed from the United Kingdom to another country pursuant to the arrangements
made in the Dublin Convention concerning the attribution of responsibility between
European countries for deciding asylum claims.”
314
Indeed, the Court of Justice of the European Union initially took the view that only
“systemic flaws” in a partner state’s system would justify failure to assign refugees on the
basis of first country of arrival rules: NS v. Secretary of State for the Home Department, Dec.
Nos. C-411/10 and C-493/10 (CJEU, Dec. 21, 2011); affirmed in Shamso Abdullahi v.

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 4.1 right to enter and remain in an asylum state 371

the sending state to refuse removal where there is a real risk that the partner
state will not grant protection where warranted.315
First and most fundamentally, courts have insisted that there be a clear
ability lawfully to enter and remain in the partner or other designated state
while the claim to protection is assessed,316 not just “a practical capacity to

Austria, Dec. No. C-394/12 (CJEU, Dec. 10, 2013), at [60]. The Supreme Court of the
United Kingdom, however, expressed concern about this approach, noting that “[t]he
presumption [of partner state respect for refugee rights] should not operate to stifle the
presentation and consideration of evidence . . . [regarding] the consequences of enforced
return. Nor should it be required that, in order to rebut it, it must be shown, as a first and
indispensable requirement, that there is a systemic deficiency in the procedure and
reception conditions provided for the asylum seeker”: R (EM, Eritrea) v. Secretary of
State for the Home Department, [2014] UKSC 12 (UK SC, Feb. 19, 2014), at [41]. The
European Court of Human Rights was similarly disinclined to adopt the “systemic
deficiency” threshold, insisting instead on an analysis of particularized risks: Tarakhel v.
Switzerland, (2015) 60 EHRR 28 (ECtHR [GC], Nov. 4, 2014). The Court of Justice seems
now to have taken this concern onboard, determining more recently that “[t]he . . .
argument that . . . only the existence of systemic flaws in the Member State responsible
is capable of affecting the obligation to transfer an asylum seeker to that Member State is
unfounded”: CK v. Slovenia, Dec. No. C-578/16 PPU (CJEU, Feb. 16, 2017), at [91].
315
While the analysis here is restricted to the duty of non-refoulement, courts have increas-
ingly constrained removals on grounds of other rights violations that may occur in the
destination state, and more generally on whether there can be an expectation of compli-
ance with duties owed to refugees: see Hathaway and Foster, Refugee Status, at 39–49.
Contrary to the approach adopted by the European Court of Human Rights in Hirsi Jamaa
v. Italy, (2012) 55 EHRR 21 (ECtHR [GC], Feb. 23, 2012), at [211], it is not enough to have
“assurances” from the government of the destination country that rights will be respected;
the real facts on the ground must be considered. Thus, Costello correctly insists that “Italy
was not entitled to rely on assurances from Libya . . . in the face of evidence from ‘reliable
sources’ of ‘practices . . . manifestly contrary to the principles of the Convention’”:
Costello, Human Rights of Migrants, at 263.
316
This requirement may be satisfied “if the person has a legally enforceable right to enter that
territory . . . Likewise, if the person in fact is permitted to enter, then the principle of
international comity, whether or not actually infringed, is not material and could be taken
to be waived at least once entry is permitted. When these matters are put together with
Article 33, it can be concluded that Australia would have no protection obligations where
the safe third country consents to admit the refugee, where the refugee has a legally
enforceable right to enter the safe third country, or where as a matter of fact the safe third
country . . . admits the refugee”: V872/00A v. Minister for Immigration and Multicultural
Affairs, [2002] FCAFC 185 (Aus. FFC, June 18, 2002). But “the Tribunal must consider
whether it is satisfied that the third country will permit entry so that the applicant will not
be left at the border and denied admission. In deciding whether it is satisfied the Tribunal
will take into account the important matters of international obligation and comity . . . as
well as the significance of the decision to the individual whose life or liberty may be at risk.
Where there is doubt, that doubt should be resolved in favour of the applicant”: ibid. For
example, the court observed in Tharmalingam v. Minister for Immigration and
Multicultural Affairs, Dec. No. BC9905456 (Aus. FFC, Aug. 26, 1999) that “the material
in the present case does indicate that the appellant now faces a risk of refoulement to Sri
Lanka because he can apparently no longer return to France as of right.”

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 372 4 r i gh t s of ref ug ees physic ally present

bring about a lawful permission to enter and reside legally in the relevant
country.”317 The sending state moreover breaches Art. 33 if there is a real
chance that the destination country will remove the refugee claimant to
another state in which the risk of onward refoulement exists.318 In these
circumstances, there can be no question of the first state avoiding responsibil-
ity for a breach of Art. 33 simply because it does not itself directly effect the
removal to the place of risk:
[F]or a country to return a refugee to a state from which he will then be
returned by the government of that state to a territory where his life or
freedom will be threatened will be as much a breach of Article 33 as if the
first country had itself returned him there direct. This is the effect of
Article 33.319
Indeed, as the Supreme Court of Canada has affirmed,
At least where Canada’s participation is a necessary precondition for the
deprivation, and where the deprivation is an entirely foreseeable conse-
quence of Canada’s participation, the government does not avoid [respon-
sibility] because the deprivation in question would be effected by someone
else’s hand . . . [W]e cannot pretend that Canada is merely a passive
participant.320

As such, when Kenya and the UNHCR forced refugees back to Uganda and
Tanzania, knowing that Uganda would not assess their claims and that
317
Minister for Immigration and Multicultural Affairs v. Applicant “C,” [2001] FCA 1332
(Aus. FFC, Sept. 18, 2001). In interpreting the language of Australian domestic legislation,
the same court has more recently determined that a “liberty or privilege lawfully given” is
sufficient, “albeit [a liberty or privilege] capable of withdrawal and not capable of enforce-
ment”: Minister for Immigration and Border Protection v. SZUSU, [2016] FCAFC 50 (Aus.
FFC, Mar. 31, 2016), at [12], [23]. While the Court is correct that the inquiry is funda-
mentally practical, the ability of an offer of entry to be withdrawn without any remedy
surely calls for extraordinarily careful scrutiny of the real risk of such a withdrawal. As
such, the Full Federal Court’s determination in this case that a mere announcement on a
government website forecloses the need for any factual inquiry into the right of entry (ibid.
at [38]) is not sound. To be preferred is the reasoning of North J. in MZZXS v. Minister for
Immigration and Border Protection, [2015] FCA 1384 (Aus. FC, Dec. 4, 2015), at [14],
requiring substantive scrutiny of the reality of the advertised right of entry. Indeed, the
Court of Justice of the European Union has recently insisted that claimants may be sent to
a non-EU “safe third country” only where authorities have affirmatively satisfied them-
selves that the duty of non-refoulement and other Refugee Convention duties will be
respected there: LH v. Hungary, Dec. No. C-564/18 (CJEU, Mar. 19, 2020), at [37].
318
Kälin, “Article 33, para. 1,” at [155].
319
R v. Secretary of State for the Home Department, ex parte Adan and Aitseguer, [2001] 2
WLR 143 (UK HL, Dec. 19, 2000), per Lord Hobhouse.
320
Suresh v. Canada, [2002] 1 SCR 3 (Can. SC, Jan. 11, 2002). While the focus of the court’s
analysis here was the indirect breach of the domestic duty to guarantee fundamental
justice, the analysis is helpful in understanding a broader range of indirect risks initiated
by the sending away of an individual from a state’s territory.

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 4.1 right to enter a nd remain in an asylum state 373

Tanzania was threatening to return them to their home country,321 they

violated the duty of non-refoulement. Similarly, the decision of South African
border guards summarily to force refugees back to “safe” neighboring states
without any assessment of whether protection was truly available there322
amounted to the very sort of willful blindness that engages Art. 33 of the
Convention. Equally clearly, the decision of European Union states to force
refugees back to Turkey, knowing that refugees are returned from that country
to Nigeria, Pakistan, and Syria,323 poses the risk of indirect refoulement of such
refugees.
Second, care must be taken to avert the risk of refoulement that would arise if
there were reason to believe that the laws or practices of the partner state could
not be relied upon accurately to recognize the refugee status of persons who are
in fact Convention refugees. Thus, the House of Lords disallowed automatic
reliance on the Dublin Convention’s “first country of arrival” rule to remove
refugees fleeing non-state agents of persecution to France and Germany,
reasoning that the understanding of the refugee definition then embraced in
those two states (which at that time excluded such cases) did not meet the
requirements of international law.324 While minor differences of interpret-
ation were found not to give rise to the risk of indirect refoulement,325 state
parties are bound – precisely in line with the intentions of the Convention’s
drafters – to engage in a “rigorous examination” of the laws and practices of the
proposed destination state, with “anxious scrutiny” of their duty of non-
refoulement.326 If it is known (or could reasonably become known) that the
understanding of the Convention refugee definition in the “country of first
arrival” or “safe third country” is deficient – in consequence of which there is a
real chance of eventual refoulement – it follows that sending a refugee to that
country is a breach of the duty to avoid the refoulement of a refugee “in any
manner whatsoever.” The EU’s “super-safe third country” approach, which
authorizes the turning away of refugee claimants to neighboring states based

321
See text at notes 106–107. 322 See text at notes 108–109. 323 See text at note 112.
324
“[T]he enquiry must be into the meaning of the Refugee Convention approached as an
international instrument created by the agreement of contracting states as opposed to
regulatory regimes established by national institutions. It is necessary to determine the
autonomous meaning of the relevant treaty provision”: R v. Secretary of State for the Home
Department, ex parte Adan and Aitseguer, [2001] 2 WLR 143 (UK HL, Dec. 19, 2000), per
Lord Steyn.
325
Lord Bingham noted that only “significant differences” of interpretation would make
removal unlawful because of the importance of what he defined as “the humane objective
of the Convention . . . to establish an orderly and internationally agreed regime for
handling asylum applications”: R v. Secretary of State for the Home Department, ex parte
Yogathas, [2002] UKHL 36 (UK HL, Oct. 17, 2002).
326
Ibid., per Lord Hutton at [74]; and at [58], per Lord Hope, citing to the holding of Lord
Bridge of Harwich in R v. Secretary of State for the Home Department, ex parte Bugdaycay,
[1987] AC 514 (UK HL, Feb. 19, 1987).

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 374 4 ri g ht s o f re f u g e e s p hy s i c a l l y p r e s e n t

only on their having established an asylum procedure and acceded to relevant

instruments (with no scrutiny of de facto compliance with relevant obliga-
tions)327 is an example of a system that is willfully blind to the risk of refoule-
ment in the destination state. Nor may Canada lawfully force all refugees back
to the United States under the Canada–US safe country agreement:328 because
the peculiarities of American law result in only a subset of Convention refugees
being granted protection against refoulement,329 there is a foreseeable risk of
indirect refoulement from the United States for many refugees.
Third, the risk of refoulement may arise not only from the risk of onward
removal or substantive error in the assessment of refugee status, but rather
because the procedures in the destination country are inadequate to identify
and protect genuine refugees.330 In the seminal case on point, the European
Court of Human Rights determined that Belgium could not return a person
seeking recognition of refugee status to the overwhelmed and failing Greek
asylum system since “[w]hen they apply the Dublin Regulation . . . [s]tates
must make sure that the intermediary country’s asylum procedure affords
sufficient guarantees to avoid an asylum seeker being removed, directly or
indirectly, to his country of origin without any evaluation of the risks he
faces.”331 In line with the result-oriented duty of non-refoulement, it is of
course irrelevant whether the risk of removal to persecution arises from the
threat of onward expulsion, material disagreement on the substance of refugee
status, or the simple inability or unwillingness carefully to scrutinize asylum
claims. In each case, the end result is the same:
[T]he focus . . . is on the end result rather than the precise procedures by
which the result was achieved. The question is whether the government of
the third country “would not” send the person to another country or
territory otherwise than in accordance with the Geneva Convention. The
concern is essentially a practical one rather than one which is
theoretical.332

As such, when the United States requires asylum applicants to have their claims
assessed in El Salvador, Guatemala, or Honduras333and when Australia forces
refugees into refugee status systems in Nauru and Papua and New Guinea
despite knowledge of the inadequacy of the systems in those countries to
327
See text at note 127. 328 See text at note 100. 329
See Chapter 4.1.1, note 156.
330
The Netherlands thus declined to transfer an Afghan refugee claimant to Hungary, noting
that Hungary’s asylum procedure provided no remedy against negative first instance
decisions, did not ensure legal assistance, lacked interpreters, and imposed inappropri-
ately short deadlines: Rechtbank Den Haag AWB Dec. No. 15/2751 (Neth. DC, Oct. 16,
2015).
331
MSS v. Belgium and Greece, (2011) 53 EHRR 28 (ECtHR, Jan. 21, 2011), at 342.
332
R v. Secretary of State for the Home Department, ex parte Yogathas, [2002] UKHL 36 (UK
HL, Oct. 17, 2002), per Lord Hope.
333
See text at note 119.

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 4.1 right to enter a nd remain in an asylum state 375

identify genuine refugees,334 they create the risk of refoulement and are
thus liable for any such consequence. Indeed, the fact that Australia has
at times explicitly defended its actions as designed to create an inhospit-
able climate that will deter refugees from arriving to seek protection335
is an extraordinary “smoking gun,” making clear that it is prepared to
tolerate the risk of refoulement in order to achieve its preferred migra-
tion management goals.

4.1.2.7 “Safe Country of Origin” Rules

In some cases, governments make blanket determinations of safety with regard
to a particular country of origin without examination of individuated circum-
stances, limiting or denying access to the usual refugee assessment procedures
to nationals of listed states.336 In principle, this approach conflicts with the
individuated nature of the Convention refugee definition: even if nearly all
persons from a given country cannot qualify for refugee status, this fact may
not lawfully impede recognition of refugee status to the small minority who are
in fact Convention refugees.337 For example, the decision of the United
Kingdom to designate Pakistan as presumptively safe was characterized by a
reviewing court as simply “irrational” in view of that country’s fundamental
disfranchisement of its Ahmadi minority338 – leading, no doubt, to the UK’s
recent shift to a more constrained approach in which the presumption of safety
makes clear which minorities of a given nationality are not to be caught by the
“safe country of origin” rule.339 An assessment of the legality of designating
“safe countries of origin” therefore hinges on whether it can dependably ensure
the protection of genuine refugees coming from those states.
Most clearly, there can be no question of automatically refusing all claims
from any country: an approach of this kind will inevitably force away at least
some refugees.340 Nor is it an answer to this concern to suggest that only
334
See text at notes 114–116. 335 See text at note 118.
336
See generally M. Hunt, “The Safe Country of Origin Concept in European Asylum Law:
Past, Present and Future,” (2014) 26(4) International Journal of Refugee Law 500 (Hunt,
“Safe Country of Origin Concept”) and Costello, “Safe Country?.”
337
NS v. Secretary of State for the Home Department, Dec. Nos. C-411/10 and C-493/10
(CJEU, Dec. 21, 2011), at [99]–[101]; CK v. Slovenia, Dec. No. C-578/16 PPU (CJEU, Feb.
16, 2017).
338
R v. Secretary of State for the Home Department, ex parte Javed, [2001] EWCA Civ 789
(Eng. CA, May 17, 2001).
339
See text at note 122. Given the greater logic of rules that exclude known at-risk sub-
populations from safe country designations, the decision of the European Union to
eliminate Art. 30(3) of the original Asylum Procedures Directive, Council Directive
2005/85/EC, OJ 2005 L326/13, which allowed states to designate partial and group-specific
safe countries of origin, may have been a counterproductive move.
340
UNHCR takes an equivocal position on the legality of designating whole countries of
origin as presumptively safe, noting without comment that “[s]ome states have drawn up
extensive lists of such countries, sometimes applying them as an automatic bar to access to

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 376 4 ri g ht s o f re f u g e e s p hy s i c a l l y p r e s e n t

countries which adhere to the Refugee Convention or other human rights

instruments will be designated as “safe countries of origin.” Sadly, even coun-
tries considered democracies and defenders of human rights have generated –
at some times, and in some circumstances – persons who are in fact
Convention refugees.341 As UNHCR has made clear, account needs to be
taken “not simply of international instruments ratified and relevant legislation
enacted there, but also of the actual degree of respect for human rights and the
rule of law, of the country’s record of not producing refugees, of its compliance
with human rights instruments, and of its accessibility to national or inter-
national organizations for the purpose of verifying human rights issues.”342 It
thus follows that the European Union’s effective bar on the reception of refugee
claims from EU citizens343 – even as, for example, European citizens of Roma
ethnicity are being recognized in other state parties as refugees344 – makes it
impossible for member states to honor their duties under Art. 33.
More commonly, however, designation of a country of origin as “safe”
operates not as a bar on seeking protection as such, but rather as a procedural
device which requires an applicant to establish his or her refugee status under
an accelerated or otherwise truncated procedure, often with the requirement to
rebut a presumption against recognition of refugee status.345 In a particularly

the asylum procedures”: UNHCR, “Asylum Processes,” at [39]. More ominously, UNHCR
refers to the need to give attention to individuated concerns as “best state practice,” rather
than a clear duty: ibid. at [39]. Thus, in the context of advising on the Canadian “safe
country of origin” rule, UNHCR did not condemn the proposal (since struck down in part
by the Canadian Federal Court: See text at note 352), but simply called for designation to
be based on “objective, reliable and up-to-date information and [to] be decided by a panel
of experts” and for that designation to be amenable to challenge in court: UNHCR,
“UNHCR Submission on Bill C-31: Protecting Canada’s Immigration System Act,” May
2012, at 12.
341
For example, in Roszkowski v. Special Adjudicator, [2001] EWCA Civ 650 (Eng. CA, May
9, 2001), the court did not question the designation of Poland as a safe country of origin
despite the fact that the Special Adjudicator had accepted that the Polish Roma applicants
had not only experienced demands for money and beatings, but had been subjected to
attacks by anti-Roma vigilantes on their apartment – including physical assaults – on three
separate occasions.
342
UNHCR, “Asylum Processes,” at [39]. 343 See notes 125–126.
344
See C. Levine-Rasky, “Designating Safety, Denying Persecution: Implications for Roma
Refugee Claimants in Canada,” (2017) 16 Journal of Immigrant and Refugee Studies 1.
345
UNHCR offers some support for this approach, suggesting that “a proper designation of a
country as a ‘safe country of origin’ does not, by that fact alone, serve as a declaration of
cessation of refugee status in regard to refugees from that country. It should serve merely
as a procedural tool to expedite processing of refugee claims”: UNHCR, “Note on the
Cessation Clauses,” UN Doc. EC/47/SC/CRP.30 (1997) (UNHCR, “Cessation”), at [7].
The concern, though, is that while apparently just altering procedural norms, safe country
of origin rules “seem to be fatal in practice. EASO reports that 90 per cent of asylum claims
that are dealt with in accelerated procedures are rejected”: Costello, “Safe Country?,”
at 609.

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 4.1 right to enter and remain in an asylum state 377

helpful judgment, the English Court of Appeal insisted that such a procedure
can be operated without breach of the duty of non-refoulement only if it
delivers a “fair hearing,” including access to legal counsel.346 The procedure
may begin from a presumption of safety in the country of origin, but must give
“careful consideration to the facts of the individual case.”347 For example, it
must be possible for an applicant to adduce expert medical evidence where
relevant.348 Perhaps most critically, where it becomes clear that credibility is at
the heart of the case, protection should not ordinarily be refused without access
to a more traditional refugee status inquiry.349 The European Union’s rules,
which insist the refugee claimants originating in a non-EU designated safe
country be entitled to rebut a presumption of safety,350 thus seek to align state
practice with these understandings.
Yet even if procedural safeguards like those set by the European Union avert
most risks of a breach of the duty of non-refoulement, there is surely still a
principled objection to deeming whole countries to be “safe countries of
origin.” Since the very point of such a designation is to deny rights to a
group of refugee claimants based on their national origin rather than on the
particularized merits of their claim to protection, the risk of prohibited stereo-
typing at the heart of the duty of non-discrimination is clearly real.351 Indeed,
the Canadian Federal Court struck down a Canadian law denying appeal rights
to persons from “designated countries of origin” (DCOs) on precisely that
basis:
The distinction drawn between the procedural advantage now accorded to
non-DCO refugee claimants and the disadvantage suffered by DCO refugee
claimants . . . is discriminatory on its face. It also serves to further marginal-
ize, prejudice, and stereotype refugee claimants from DCO countries which
are generally considered safe and “non-refugee producing.” Moreover, it
346
R (L) v. Secretary of State for the Home Department, [2003] EWCA Civ 25 (Eng. CA, Jan.
24, 2003), at [30], [38].
347
Ibid. at [45]. 348 Ibid. at [49].
349
“Where an applicant’s case does turn on an issue of credibility, the fact that the interviewer
does not believe the applicant will not, of itself, justify a finding that the claim is clearly
unfounded. In many immigration cases, findings on credibility have been reversed on
appeal. Only where the interviewing officer is satisfied that nobody could believe the
applicant’s story will it be appropriate to certify the claim as clearly unfounded on the
ground of lack of credibility alone”: ibid. at [60].
350
See text at notes 123–124.
351
See Chapter 3.4. The risk that designation as a “safe country of origin” amounts to
nationality-based discrimination is intensified where the criteria relied upon for designa-
tion do not accurately focus on the reality of risk for a Convention reason. Costello, for
example, criticizes the EU proposal of 2015 for a common safe country of origin list that
would have been based on a quantitative assessment of the country’s record before the
European Court of Human Rights and whether the country was or was not a candidate for
EU membership, rightly said to be “weak proxies for the actual human rights situation”:
Costello, “Safe Country?,” at 611.

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 378 4 r i g ht s of re f u g e e s p hy s i c a l l y p r e s e n t

perpetuates a stereotype that refugee claimants from DCO countries are

somehow queue-jumpers or “bogus” claimants who only come here to take
advantage of Canada’s refugee system and its generosity . . .
This [rule] draws a clear and discriminatory distinction between refugee
claimants from DCO-countries and those from non-DCO countries, by
denying the former a right to appeal a decision of the RPD and allowing
the latter to make such an appeal. This is a denial of substantive equality to
claimants from DCO countries based upon the national origin of such
claimants.352

As Costello poignantly observes, this judgment makes clear why “safe country
of origin” rules are as unnecessary as they are ethically suspect:

The finding [of the Canadian Federal Court] is startling in its clarity. There
was no justification for disadvantaging claimants from particular coun-
tries. If there were weak or fraudulent asylum claims, adjudicators were
assumed to be capable of doing their job and rejecting such claims. While
evidence of weak claims could be used as a reason to accelerate adminis-
trative processes, it provided no basis for limited appeal rights.353

In sum, the duty of non-refoulement – because of its broad ambit and

consequence-defined nature – is a powerful means of ensuring access to
protection for at-risk persons able to reach the jurisdiction of a state party to
the Convention. It prohibits non-admittance of refugees by way of force,
border closures, or the erection of unresponsive barriers to access. It proscribes
ejection from a state party’s territory, whether by formal policy, acquiescence,
or the implementation of so-called “voluntary repatriation” arrangements
which are in fact coercive. The duty of non-refoulement is engaged in the
event of the removal of a refugee consequent to refusal to consider a claim or
because of inadequate procedures, as well as by virtue of reliance on such
legally fictitious notions as “international zones” or “excision.” And “protec-
tion elsewhere” rules – including so-called “first country of arrival” and “safe
third country” rules that fail to ensure the right of a refugee to enter and remain
in the designated partner state, or which otherwise create gaps in the ability of a
refugee to secure recognition and protection, as well as “safe country of origin”
designations that stigmatize all (or many) citizens of a given state as unworthy
of the usual procedures for investigation of their refugee claims – may similarly
result in the removal of genuine refugees, thus violating the duty not to return a
refugee to the risk of being persecuted “in any manner whatsoever.”
352
YZ v. Canada, [2016] 1 FCR 575, 2015 FC 892 (Can. FC, July 23, 2015), at [124], [130]. The
Belgian Court of Arbitration similarly ruled that the so-called “double 5%” rule relied
upon by Belgium to devise its safe country of origin list was discriminatory: Hunt, “Safe
Country of Origin Concept,” at 510, citing to Belgian Court of Arbitration Judgment 20/93
of Mar. 25, 1993, at 6392.
353
Costello, “Safe Country?,” at 619.

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 4.1 ri ght to enter and remain in an asylum state 379

4.1.3 Extraterritorial Refoulement

Analysis to this point has focused on the implications of the duty of non-
refoulement for refugees at a state’s borders or within its territory. Increasingly,
however, states are inclined to take action in areas beyond their own territory
(including beyond their territorial sea) with a view to forcing refugees back to
their place of origin, or at least toward some other state. They seek to ensure
that refugees never arrive,354 and hence cannot claim the protection to which
they are in principle entitled. Because the deterrent measures are premised on
denial to the refugee of any direct contact with the destination state, the
question arises whether a state party that engages in arm’s-length actions
that lead ultimately to refugees being forced back to their country of origin
has breached the duty of non-refoulement.

4.1.3.1 Unilateral Extraterritorial Deterrence

It is generally understood that measures undertaken by a state to prevent
refugees from crossing its border are acts of refoulement. For example, the
European Court of Human Rights was called upon to assess the legality of
measures taken by Spain at the frontier of its African enclave in Melilla.355
Spain argued that the Malian and Ivorian nationals turned back in the maze
between two six-meter high external barriers and a three-meter high internal
barrier dividing Melilla from Morocco had not entered Spanish territory, and
could therefore not be said to be under Spanish jurisdiction. The Court insisted
that even if the asylum-seekers were not “in” Spain at the time of the push-
backs, Spain was nonetheless responsible for their rejection because the true
lynchpin for liability – jurisdiction, not territory – was clearly established by its
continuous control over the area in question.356
In taking this view,357 the Court drew upon the approach pioneered in its
Grand Chamber ruling in Hirsi358 that Italy had jurisdiction over migrants
turned back on the high seas:
The Court observes that in the instant case the events took place entirely
on board ships of the Italian armed forces, the crews of which were
composed exclusively of Italian military personnel. In the Court’s opinion,
in the period between boarding the ships of the Italian armed forces and
354
See generally Hathaway, “Non-entrée.” Whereas refugee law is predicated on the duty of
non-refoulement, the politics of non-entrée is based on a commitment to ensuring that
refugees not be allowed to arrive.
355
ND and NT v. Spain, Dec. Nos. 8675/15 and 8697/15 (ECtHR, Feb. 13, 2020).
356
Ibid. at [49]–[51].
357
Much of the analysis that follows draws on Gammeltoft-Hansen and Hathaway,
“Cooperative Deterrence.”
358
Hirsi Jamaa v. Italy, (2012) 55 EHRR 21 (ECtHR [GC], Feb. 23, 2012). The same principle
was recently affirmed in ND and NT v. Spain, Dec. Nos. 8675/15 and 8697/15 (ECtHR,
Feb. 13, 2020), at [110].

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 380 4 ri g ht s of re f u g e es p hy s i c a l l y p r e s e n t

being handed over to the Libyan authorities, the applicants were under the
continuous and exclusive de jure and de facto control of the Italian
authorities.359

Given the lack of protection for refugees in Libya and the risk of persecution
in the applicants’ countries of origin (Eritrea and Somalia), the Court found
Italy in breach of its human rights obligations, including the duty of non-
refoulement.360 This holding aligns with the dominant understanding of
jurisdiction, previously analyzed in detail.361 As the International Court of
Justice itself has made clear, human rights obligations presumptively apply
within any area under the effective control of a state party.362
An outlier position was, however, adopted by the majority of the Supreme
Court of the United States in the decision of Sale v. Haitian Centers Council,363
a challenge to the American policy of interdicting Haitians in search of
protection in international waters and returning them to Haiti.364 The Court
observed that “the text and negotiating history of Article 33 . . . are both
completely silent with respect to the Article’s possible application to actions
taken by a country outside its own borders.”365 Moreover, it was noted that the
original continental European understanding of refoulement – which spoke to
rejections which occurred at, or from within, a state’s borders – was in line with
the textual reference in Art. 33 to the duty to avoid “return,” said by the Court
to denote “a defensive act of resistance or exclusion at a border rather than an
act of transporting someone to [their home state, or some other country] . . . In
the context of the Convention, to ‘return’ means to ‘repulse’ rather than to
‘reinstate.’”366 Indeed, it was determined by the Court that only a territory-
based understanding would allow the primary duty set by Art. 33(1) to be read
in consonance with the right of states under Art. 33(2) to deny protection
against refoulement to persons who pose a danger to the security “of the

359
Hirsi Jamaa v. Italy, (2012) 55 EHRR 21 (ECtHR [GC], Feb. 23, 2012), at [81].
360
Ibid. at [122]–[138], [146]–[158], [183]–[186]. 361 See Chapter 3.1.1 at note 58 ff.
362
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
[2004] ICJ Rep 136, at [110].
363
Sale, Acting Commissioner, Immigration and Naturalization Service, et al., Petitioners v.
Haitian Centers Council, Inc., et al., 509 US 155 (US SC, Jan. 12, 1993).
364
The analysis here focuses on issues of international refugee law taken up by the Court. It
has been observed, however, that the Court’s approach to relevant US law – in particular
its finding that the statutory language was addressed only to the Attorney General, not to
the President or the Coast Guard, and its invocation of the presumption against extrater-
ritorial application of American law – was equally flawed. See S. Legomsky, “The USA and
the Caribbean Interdiction Program,” (2006) 18(3–4) International Journal of Refugee Law
677 (Legomsky, “Caribbean Interdiction”), at 687–689.
365
Sale, Acting Commissioner, Immigration and Naturalization Service, et al., Petitioners v.
Haitian Centers Council, Inc., et al., 509 US 155 (US SC, Jan. 12, 1993), at 178.
366
Ibid. at 182. Ironically, the Court reached this conclusion based on the difference between
“return” and “exclude” as codified in US domestic law.

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 4.1 right to enter a nd remain in an asylum state 381

country in which he is [emphasis added].” In the view of the American

Supreme Court, reading Art. 33(1) to apply to extraterritorial deterrence
“would create an absurd anomaly: dangerous aliens on the high seas would
be entitled to the benefits of Art. 33(1) while those residing in the country that
sought to expel them would not. It seems more reasonable to assume that the
coverage of Art. 33(2) was limited to those already in the country because it was
understood that Art. 33(1) obligated the signatory states only with respect to
aliens within its territory.”367 Thus, the prohibition against refoulement was
determined to accrue to the benefit only of persons “on the threshold of initial
entry.”368
These arguments have little merit. Perhaps most spurious is the construc-
tion of Art. 33(1) based on the need for consistency with Art. 33(2). Since a
refugee can be ejected under Art. 33(2) on national security grounds only
where his or her presence or actions are shown to give rise to an objectively
reasonable, real possibility of direct or indirect substantial harm to the host
state’s most basic interests,369 it is difficult to conceive in practice of a situation
in which a refugee not yet at or within a state’s territory could be subject to such
exclusion. It is thus perfectly logical that this very limited prerogative to avoid
the fundamental duty of non-refoulement would be textually constrained to
situations in which a clear and critical risk could, in fact, arise.370 As Justice
Blackmun noted in his dissenting opinion in Sale, “[t]he tautological observa-
tion that only a refugee already in a country can pose a danger to the country
‘in which he is’ proves nothing.”371
Second, the fact that the drafters assumed that refoulement was likely to occur
at, or from within, a state’s borders – and therefore did not expressly proscribe
extraterritorial acts which lead to a refugee’s return to be persecuted – simply
reflects the empirical reality that when the Convention was drafted there was
little evidence of countries seeking to deter refugees other than from within, or
at, their own borders.372 As the American representative to the Ad Hoc

367
Ibid. at 180. 368 Ibid. at 187. 369 See Chapter 4.1.4 at note 512 ff.
370
“[I]n UNHCR’s opinion [the US Supreme Court’s] view is contradicted by the clear
wording of Article 33(1) and 33(2), respectively, which address different concerns, as
well as [by] the fact that the territorial scope of a number of other provisions of the 1951
Convention is made explicit”: UNHCR, “Advisory Opinion on the Extraterritorial
Application of Non-refoulement Obligations under the 1951 Convention relating to the
Status of Refugees and its 1967 Protocol,” Jan. 26, 2007, at [28]. See also Hirsi Jamaa v.
Italy, (2012) 55 EHRR 21 (ECtHR [GC], Feb. 23, 2012) (separate opinion of Judge Pinto de
Albuquerque), at 68 (“The scope of application of a rule beneficial to refugees should not
be limited by a territorial reference foreseen in the exception to the rule”).
371
Sale, Acting Commissioner, Immigration and Naturalization Service, et al., Petitioners v.
Haitian Centers Council, Inc., et al., 509 US 155 (US SC, Jan. 12, 1993), at 194.
372
This is not to say, of course, that no such practices had occurred (see the discussion of the
turning away of the St. Louis, described in Chapter 4.1 at note 9). Indeed, Ben-Nun’s analysis
of the drafting history leads him to conclude “that in all probability, non-refoulement did

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 382 4 r i g ht s o f re f u g e e s p hy s i c a l l y p r e s e n t

Committee that prepared the Refugee Convention observed in the aftermath of

the Sale decision, “[i]t is incredible that states that had agreed not to force any
human being back into the hands of his/her oppressors intended to leave
themselves – and each other – free to reach out beyond their territory to seize
a refugee and to return him/her to the country from which he sought to
escape.”373 There is simply no basis whatever to maintain that the drafters
envisaged, let alone would have sanctioned, interdiction and return as practiced
on the high seas by the United States. There was certainly no historical precedent
of a policy of proactive deterrence, encompassing affirmative actions intended
specifically to take jurisdiction over refugees (such as forcing them onto US ships
and destroying their boats), without a concomitant assumption of responsibility.
This leaves us with the Court’s fairly basic literal proposition374 that
because a state cannot “expel or return” someone who has yet to arrive at
its territory, the duty to avoid “return” speaks only to “a defensive act of
resistance or exclusion at a border,” and not to the act of actually sending
them home. Of all the Court’s arguments, this is perhaps the most
disingenuous. Not only does the word “return” not have the plain mean-
ing attributed to it,375 but a construction that excludes actions that would
actually deliver a refugee back to his or her persecutors – rather than
simply resisting or excluding them – is in fact the plainest and most
obvious breach of the object and purpose of the duty conceived by the

indeed apply to refugees on the high seas, which had been a well-known phenomenon since
the late 1930s”: Ben-Nun, “British-Jewish Roots,” at 113.
373
L. Henkin, “Notes from the President,” [1993] 5 American Society of International Law
Newsletter 1.
374
As the House of Lords has insisted, “[i]t is of course true that in construing any document
the literal meaning of the words used must be the starting point. But the words must be
construed in context, and an instrument such as the Refugee Convention must be given a
purposive construction consistent with its humanitarian aims”: R v. Asfaw, [2008] UKHL
31 (UK HL, May 21, 2008), at [11]. This passage was more recently approved by the UK
Supreme Court in SXH v. Crown Prosecution Service, [2017] UKSC 30 (UK SC, Apr. 11,
2017), at [7]. See generally Chapter 2.1.
375
The primary definition of “return” is “[t]he act of coming back to or from a place, person,
or condition”: The Oxford English Dictionary, 2nd ed. (1989), Vol. XXX, at 802; “come or
go back to a place”: Concise Oxford English Dictionary, 12th ed. (2011), at 1230. Moreover,
as UNHCR argued before the Supreme Court, “the definition of ‘refouler’ upon which the
government relies to render the term ‘return’ ambiguous simultaneously renders it
redundant. Under [the US government’s] reading, the phrase ‘expel or return’ is trans-
formed into ‘expel or expel’”: UNHCR, “Brief as Amicus Curiae,” filed Dec. 21, 1992 in
McNary v. Haitian Centers Council Inc., Case No. 92-344, at 10 (Sale v. Haitian Centers
Council, 509 US 155 (US SC, June 21, 1993)), reprinted in (1994) 6(1) International
Journal of Refugee Law 85. As Legomsky observes, “that argument assumes the treaty
drafters meant to describe the prohibition [of refoulement] by using terminology unique to
United States law – a highly unlikely premise”: Legomsky, “Caribbean Interdiction,”
at 688.

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 4.1 right to enter and remain in an asylum state 383

drafters: namely, to prohibit measures which would cause refugees to be

“pushed back into the arms of their persecutors.”376
More generally, the US Supreme Court’s approach takes no account of the
previously noted decision of the drafters to amend Art. 33 in order to stipulate
that the duty of non-refoulement prohibits return to the risk of being perse-
cuted “in any manner whatsoever,”377 said to “refer to various methods by
which refugees could be expelled, refused admittance, or removed.”378 Much
less does it give any consideration to the fact that the essential purpose of the
Refugee Convention is to provide rights to seriously at-risk persons able to
escape from their own countries – a goal that would clearly be undermined by
an approach to Art. 33 which effectively authorized governments to deny them
all rights by forcing them back home before the refugees reached a state party’s
territory.379 Equally important is the policy concern expressed by the UNHCR
in its amicus curiae brief filed in the Sale case:

[The US government’s] interpretation of Article 33 . . . extinguishes the

most basic right enshrined in the treaty – the right of non-return – for an
entire class of refugees, those who have fled their own countries but have
not yet entered the territory of another State. Under [the US govern-
ment’s] reading, the availability of the most fundamental protection
afforded refugees turns not on the refugee’s need for protection, but on
his or her own ability to enter clandestinely the territory of another
country.380

376
Statement of the Chairman, Mr. Chance of Canada, UN Doc. E/AC.32/SR.21, Feb. 2, 1950,
at 7. It is also an interpretation fundamentally at odds with the most central goal of the
Refugee Convention itself, namely “to assure refugees the widest possible exercise of . . .
fundamental rights and freedoms”: Refugee Convention, at Preamble, [2].
377
See Chapter 4.1.2, note 225.
378
Statement of Mr. Cuvelier of Belgium, UN Doc. E/AC.32/SR.22, Feb. 2, 1950, at 20. See
also UNHCR, “Advisory Opinion on the Extraterritorial Application of Non-refoulement
Obligations under the 1951 Convention relating to the Status of Refugees and its 1967
Protocol,” Jan. 26, 2007, at [29] (“[A]ny interpretation which construes the scope of
Article 33(1) of the 1951 Convention as not extending to measures whereby a State, acting
outside its territory, returns or otherwise transfers refugees to a country where they are at
risk of persecution would be fundamentally inconsistent with the humanitarian object and
purpose of the 1951 Convention and its 1967 Protocol”). The UNHCR adopts much the
same understanding of the drafting history as described here: ibid. at [30]–[31].
379
See UNHCR, “Interception,” at [23]: “The principle of non-refoulement does not imply
any geographical limitation. In UNHCR’s understanding, the resulting obligations extend
to all government agents acting in an official capacity, within or outside national territory.
Given the practice of States to intercept persons at great distance from their own territory,
the international refugee protection regime would be rendered ineffective if States’ agents
abroad were free to act at variance with obligations under international refugee law and
human rights law.”
380
UNHCR, “Brief as Amicus Curiae,” filed Dec. 21, 1992 in McNary v. Haitian Centers
Council Inc., Case No. 92-344 (US SC), at 18, reprinted in (1994) 6(1) International Journal
of Refugee Law 85. The US Supreme Court invoked arguments by both Robinson and

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 384 4 ri g ht s of re f u g e e s p hy s i c a l l y p r e s e n t

Perhaps most fundamentally, the American Supreme Court’s analysis seems

erroneously to assume that international rights can apply only in a state’s
territory: no account whatever was taken of the fact that some Convention
rights are explicitly not subject to a territorial or other level of attachment –
including, of course, Art. 33’s duty of non-refoulement. As analyzed in detail
above,381 under international law the duty of non-refoulement is owed to any
refugee under the jurisdiction of a state party. A state party exercises jurisdic-
tion and is thereby bound to respect the duty of non-refoulement if, inter alia,
the refugees themselves are subject to that state party’s effective authority and
control (whether lawfully or not), even if outside that state’s territory.382 There
can be no doubt that interception and detention by officials aboard a United
States military vessel in international waters easily qualifies as such an exercise
of de facto jurisdiction.
Much the same conclusion was reached by the English Court of Appeal.
Noting that the Inter-American Commission on Human Rights383 was
“fiercely critical of the majority decision of the Supreme Court,”384 the Court
treated the Sale decision as “wrongly decided; it certainly offends one’s sense of
fairness.”385 It concluded that “it is impermissible to return refugees from the
high seas to their country of origin.”386 All in all, the textual and historical

Grahl-Madsen in support of its conclusion that Art. 33 only applies once persons reach a
state party’s territory. Yet both writers impliedly acknowledge the illogical policy implica-
tions of distinguishing between refugees located on either side of a border. Robinson
commented that “if a refugee has succeeded in eluding the frontier guards, he is safe; if he
has not, it is his hard luck”: N. Robinson, Convention relating to the Status of Refugees: Its
History, Contents and Interpretation (1953) (Robinson, History), at 163. Grahl-Madsen
posited the scenario of a refugee approaching a frontier post some distance inside the
actual frontier, who may be refused permission to proceed farther inland, but must be
allowed to stay in the bit of territory situated between the actual frontier line and the
control post, because any other course of action would violate Art. 33: Grahl-Madsen,
Commentary, at 229–230.
381
See Chapter 3.1.1. “In view of the purposes and objects of human rights treaties, there is no
a priori reason to limit a state’s obligation to respect human rights to its national territory.
Where agents of the state, whether military or civilian, exercise power and authority
(jurisdiction, or de facto jurisdiction) over persons outside national territory, the pre-
sumption should be that the state’s obligation to respect the pertinent human rights
continues. That presumption could be rebutted only when the nature and content of a
particular right or treaty language suggest otherwise”: T. Meron, “Extraterritoriality of
Human Rights Treaties,” (1995) 89(1) American Journal of International Law 78, at 80–81.
382
See Chapter 3.1.1 at note 58 ff.
383
Haitian Centre for Human Rights et al. v. United States, Case No. 10.675, Report No. 51/96,
IAComHR Doc. OEA/Ser.L/V/II.95 Doc. 7 rev., at 550 (IAComHR, Mar. 13, 1997).
384
R (European Roma Rights Centre and Others) v. Immigration Officer at Prague Airport,
[2003] EWCA Civ 666 (Eng. CA, May 20, 2003), at [34].
385
Ibid.
386
R (European Roma Rights Centre and Others) v. Immigration Officer at Prague Airport,
[2003] EWCA Civ 666 (Eng. CA, May 20, 2003), at [35].

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 4.1 right to enter and remain in an asylum state 385

arguments for reading Art. 33 in the narrow way posited by the Supreme Court
of the United States are simply not compelling. As Justice Blackmun concluded
in his dissenting opinion in Sale,

Today’s majority . . . decides that the forced repatriation of the Haitian

refugees is perfectly legal because the word “return” does not mean return
[and] because the opposite of “within the United States” is not outside the
United States . . .
The Convention . . . was enacted largely in response to the experience of
Jewish refugees in Europe during the period of World War II. The tragic
consequences of the world’s indifference at that time are well known. The
resulting ban on refoulement, as broad as the humanitarian purpose that
inspired it, is easily applicable here, the Court’s protestations of impotence
and regret notwithstanding.387

There are, however, some judicial opinions that approve of the US Supreme
Court’s approach. In the House of Lords Roma Rights Centre decision,388 Lord
Hope made clear in obiter dicta that he did “not, with respect, think that the
Sale case was wrongly decided . . . The majority recognised the moral weight of
the argument that a nation should be prevented from repatriating refugees to their
potential oppressors whether or not the refugees were within that nation’s borders
. . . But in their opinion both the text and the negotiating history of article 33
affirmatively indicated that it was not intended to have extraterritorial effect.”389
Two judges of the High Court of Australia have also offered some support for the
approach of the US Supreme Court.390 Yet as UNHCR correctly observes, the small
387
Sale, Acting Commissioner, Immigration and Naturalization Service, et al., Petitioners v.
Haitian Centers Council, Inc., et al., 509 US 155 (US SC, Jan. 12, 1993), at 207–208.
388
R (European Roma Rights Centre) v. Immigration Officer at Prague Airport, [2005] 2 AC 1
(UK HL, Dec. 9, 2004).
389
Ibid. at [68], per Lord Hope. See also the views of Lord Bingham, ibid. at [17].
390
Noting both the approach taken in Sale and Lord Hope’s remarks in Roma Rights, as well
as some comparable remarks in two earlier Australian decisions (Minister for Immigration
and Multicultural Affairs v. Haji Ibrahim, [2000] HCA 55 (Aus. HC, Oct. 26, 2000), at
[136], per Gummow J.; Minister for Immigration and Multicultural Affairs v. Khawar,
[2002] HCA 14 at [42], per McHugh and Gummow JJ.), Justice Keane found that
“[j]udicial authority in Australia, the United Kingdom, and the United States of America
suggests that a state’s obligations under the Convention arise only with respect to persons
who are within that state’s territory”: CPCF v. Minister for Immigration and Border
Protection, [2015] HCA 1 (Aus. HC, Jan. 28, 2015), at [461], per Keane J. Only somewhat
more cautiously, Chief Justice French observed that “[t]he defendants argued that the non-
refoulement obligation under the Refugee Convention only applied to receiving states in
respect of refugees within their territories. There is support for that view in some decisions of
this court, the House of Lords and the Supreme Court of the United States”: ibid. at [10], per
French C.J. The majority of the Court nonetheless seemed to assume that the duty of non-
refoulement does apply extraterritorially, but felt no need to grapple with that question given
the duty under Australian domestic law to ensure “that it is safe for the person to be in
that place” before disembarking a refugee claimant in a foreign jurisdiction: ibid. at [12].

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 386 4 ri g ht s of re f u g e e s p hy s i c a l l y p r e s e n t

number of judicial opinions favoring the Sale approach are found in cases that were
actually decided on the basis of domestic, rather than international, law.391
Moreover, after considering not only the US Supreme Court’s reasoning, but also
the endorsements of that approach in some British and Australian jurisprudence,
Judge Pinto de Albuquerque of the European Court of Human Rights concluded:

With all due respect, the United States Supreme Court’s interpretation contra-
dicts the literal and ordinary meaning of the language of Article 33 of the
United Nations Convention relating to the Status of Refugees, and departs
from the common rules of treaty interpretation . . . Unlike other provisions of
the [Refugee Convention], the applicability of Article 33(1) does not depend on
the presence of the refugee in the territory of a State . . . [T]he French term of
refoulement includes the removal, transfer, rejection, or refusal of admission of
a person. The deliberate insertion of the French word in the English version has
no other possible meaning than to stress the linguistic equivalence between the
verb return and the verb refouler. Furthermore, the preamble of the
Convention states that it endeavors to “assure refugees the widest possible
exercise of these fundamental rights and freedoms” and this purpose is
reflected in the text of Article 33 itself through the clear expression “in any
manner whatsoever” (de quelque manière que ce soit).392

The joint decision of Justices Hayne and Bell noted that “Section 74 precluded taking
him to [his country of origin, namely] Sri Lanka without asking at least whether he
feared for his personal safety in that place . . . By acceding to the Refugee[] Convention,
Australia has undertaken to other parties to the Convention obligations with respect to
certain persons . . . It is unnecessary to decide whether these obligations are relevant to
the construction of the [Australian] Act”: ibid. at [110]–[112]. Justice Crennan assumed
the relevance of Refugee Convention obligations, but determined that “no such issues
arose on the facts in the special case”: ibid. at [219]. Justice Kiefel similarly clearly
acknowledged the non-refoulement obligation, but agreed that relevant inquiries were
subsumed under the Australian “safety” inquiry: ibid. at [297]–[299]. Justice Gageler
took the view that it was “uncontroversial” that “the exercise of maritime powers over
persons on board a foreign vessel in the Australian contiguous zone is subject to
international law” (ibid. at [383]), but was of the view that amendments to Australian
law made that fact irrelevant for purposes of domestic adjudication: ibid. at [390].
391
“[I]t is important to stress that, at international law, the principle of non-refoulement . . .
applies wherever and however a state exercises jurisdiction . . . UNHCR considers that
there is only one superior court decision [citing to Sale in the US Supreme Court] that is at
variance with this understanding and that decision . . . was based on an interpretation of
national rather than international law.” UNHCR, “UNHCR Legal Position: Despite court
ruling on Sri Lankans detained at sea, Australia bound by international obligations,” Feb.
4, 2015. This position paper was issued in response to the decision of the High Court of
Australia in CPCF v. Minister for Immigration and Border Protection, [2015] HCA 1 (Aus.
HC, Jan. 28, 2015), in which it was determined that detention at sea was permissible under
Australian law subject to limitations involving, for example, safety. The Court did not,
however, decide on the scope of Australia’s non-refoulement obligations, finding reso-
lution of that issue unnecessary to decide the case before it.
392
Hirsi Jamaa v. Italy, (2012) 55 EHRR 21 (ECtHR [GC], Feb. 23, 2012) (separate opinion of
Judge Pinto de Albuquerque), at 67–68. As Goldenziel opines in her analysis of these cases,

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 4.1 ri g h t t o en t er an d r emai n i n an asylu m state 387

As such, the American interdiction and return of Haitians seeking protec-

tion,393 as well as more recent efforts by Indonesia, Thailand, and Malaysia
to drive Rohingya refugees back to Burma,394 should be understood to have
amounted to unlawful refoulement.
Given the presumptive illegality of extraterritorial deterrence, it is increas-
ingly common for states to justify efforts to turn back refugees on the high seas
on the grounds that such action is necessary in order to deter refugees from
risking their lives in the search for protection. This argument has been made by
the United States in support of its interdiction and repatriation efforts in the
Caribbean395 and most especially by Australia, which routinely refuses admis-
sion to any refugee arriving by sea.396 There is, of course, no doubt both that
many asylum journeys are very risky,397 and that saving lives is an eminently
noble goal. In addition, many countries have undertaken obligations to deter
human trafficking and smuggling which arguably afford legitimate cause to
intercept non-citizens in areas beyond their territorial jurisdiction.398 For
example, state parties to the Smuggling Protocol399 may rely on that treaty to
assert this authority in some circumstances:

the European Court of Human Rights’ “more expansive interpretation of non-refoulement

can . . . be explained by its unique position as a tribunal. Unlike any courts in the US and
Australia, [it] is a supranational court that is explicitly charged with enforcing and
implementing a human rights convention”: J. Goldenziel, “When Law Migrates:
Refugees in Comparative International Law,” in A. Roberts et al. eds., Comparative
International Law (2018), at 22. Martin advances a series of instrumentalist arguments
against this approach, arguing most intriguingly that understanding the duty of non-
refoulement to prohibit extraterritorial deflection efforts will simply “drive[e] control
measures into the shadows”: D. Martin, “Interdiction of Asylum Seekers: The Realms of
Policy and Law in Refugee Protection,” Virginia Public Law and Legal Theory Research
Paper No. 2014-57 (Sept. 1, 2014). This plea to avoid an understanding of the duty of non-
refoulement that some states would find inimical to their general migration management
goals comes perilously close to a bald endorsement of state practice as determinative of the
meaning of a treaty, an approach not justified under norms of treaty interpretation: see
Chapter 2.4.
393
See text at note 29. 394 See text at note 33. 395 See text at notes 30–31.
396
See text at note 36. See generally R. Rothfield ed., The Drownings’ Argument (2014); and
Schloenhardt and Craig, “Turning Back the Boats.”
397
UNHCR, “Desperate Journeys: Refugees and migrants entering and crossing Europe via
the Mediterranean and Western Balkans Routes,” Feb. 2017. Yet there is reason to doubt
the effectiveness of deterrence as a life-saving measure: see Schloenhardt and Craig,
“Turning Back the Boats.”
398
For a detailed analysis of the relationship between refugee law duties and responsibilities
to combat human trafficking and smuggling see J. Hathaway, “The Human Rights
Quagmire of ‘Human Trafficking,’” (2008) 49(1) Virginia Journal of International Law
1–49; republished in M. Segrave ed., Human Trafficking (2013).
399
Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the
United Nations Convention against Transnational Organized Crime, 2241 UNTS 507
(UNTS 39574), adopted Nov. 15, 2000, entered into force Jan. 28, 2004 (Smuggling
Protocol).

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 388 4 ri g ht s o f re f u g e e s p hy s i c a l l y p r e s e n t

A State Party that has reasonable grounds to suspect that a vessel is

engaged in the smuggling of migrants by sea and is without nationality
or may be assimilated to a vessel without nationality may board and search
the vessel. If evidence confirming the suspicion is found, that State Party
shall take appropriate measures in accordance with relevant domestic and
international law.400

Thus, at least when the vessel in question does not have a flag state,401 state
parties to the Smuggling Protocol enjoy a presumptive right to board and
search vessels reasonably suspected of smuggling migrants.
But neither the cause of saving lives nor the responsibility to combat
trafficking or smuggling justifies a state acting in ways that are at odds with
the ability simultaneously to respect obligations under the Refugee
Convention, including the duty of non-refoulement.402 Because a refugee
subject to the de facto control of a state – including, for example, a refugee
on a vessel that has been boarded or intercepted by the agents of that state403 –
is entitled to protection against refoulement, governments engaged in life-
saving or anti-trafficking/smuggling operations are required to conduct their
operations in a way that enables refugees to seek and secure protection.404 In
contrast, the rough-and-ready approach of US authorities intercepting Haitian
refugees in international waters – granting them access to an assessment
procedure only if they somehow demonstrate a “physical manifestation” of
400
Ibid. at Art. 8(7).
401
Where the vessel suspected of engaging in people smuggling has a flag state, that country’s
cooperation is normally to be sought before boarding or searching the vessel: ibid. at Art.
8(2).
402
“States have a legitimate interest in controlling irregular migration. Unfortunately, exist-
ing control tools, such as visa requirements and the imposition of carrier sanctions, as well
as interception measures, often do not differentiate between genuine asylum-seekers and
economic migrants. National authorities, including immigration and airlines officials
posted abroad, are frequently not aware of the paramount distinction between refugees,
who are entitled to international protection, and other migrants, who are able to rely on
national protection”: UNHCR, “Interception,” at [17].
403
See Chapter 3.1.1 at note 73.
404
“A good faith understanding of the duty of non-refoulement requires states to provide
reasonable access and opportunity for a protection claim to be made”: “The Michigan
Guidelines on Refugee Freedom of Movement,” (2017) 39 Michigan Journal of
International Law 1, at [10]. Indeed, the UNHCR has suggested that “States should
avoid the categorization of interception operations as search and rescue operations,
because this can lead to confusion with respect to disembarkation responsibilities . . .
Measures to combat smuggling and trafficking of persons must not adversely affect the
human rights and dignity of persons and must not undermine international refugee
protection responsibilities”: Report of the Office of the United Nations High
Commissioner for Refugees, “The treatment of persons rescued at sea: conclusions and
recommendations from recent meetings and expert round tables convened by the Office of
the United Nations High Commissioner for Refugees,” UN Doc. A/AC.259/17, June 23–
27, 2008, at [20], [47].

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 4.1 r ight to enter and remain in an asylum state 389

fear405 – offers only the form rather than the substance of access to protec-
tion.406 And while the duty of non-refoulement does not require that all
refugees be admitted to the territory of the intercepting state,407 neither does
it allow willful blindness to the foreseeable consequences of taking refugees to
countries that do not have an adequate procedure to identify and protect
refugees408 – including, for example, disembarkations by Australia of inter-
cepted refugees in Indonesia.409
Nor may a state avoid liability for refoulement by subcontracting its deter-
rent strategy to transportation companies or other private actors. Under
principles of state responsibility, governments are responsible inter alia for
“the conduct of a person or group of persons in fact acting on the instruction
of, or under the direction or control of, the State,”410 as well as for “conduct

405
See Chapter 4.1 at note 32.
406
“During the last three decades, US Coast Guard has returned all Haitians who do not
demonstrate a ‘physical manifestation’ of a fear of return. Those that pass this ‘shout test’
or ‘sweat test’ may be referred for an asylum screening. The shout test does not pass the
smell test. It is ineffective as a refugee screening tool and makes a mockery of international
legal standards. No Haitian has been granted asylum after having been ‘screened’ in this
careless and arbitrary fashion. The US Coast Guard has subsequently identified one
Haitian as having a manifestation of fear, and that person did not pass the credible fear
screening. In contrast, in 2010, 55 percent of Haitians who applied for asylum in the US
after arriving by air or land were granted asylum”: Hebrew Immigrant Aid Society,
“Refugees Must Be Protected, Even at Sea,” Dec. 2014. As Legomsky opines, “in theory a
fair refugee status determination could possibly be made outside the country’s territory . . .
[H]owever, the practical obstacles to a fair procedure in conjunction with interdiction are
formidable”: Legomsky, “Caribbean Interdiction,” at 686, n. 58.
407
See Chapter 4.1 at notes 134–135.
408
The UNHCR has issued helpful analyses of duties in the context of extraterritorial
processing: UNHCR, “Maritime interception operations and the processing of inter-
national protection claims: legal standards and policy considerations with respect to
extraterritorial processing,” Nov. 2010; UNHCR, “Guidance Note on bilateral and/or
multilateral transfer arrangements of asylum-seekers,” May 2013. See also A. Francis,
“Bringing Protection Home: Healing the Schism between International Obligations and
National Safeguards Created by Extraterritorial Processing,” (2008) 20(2) International
Journal of Refugee Law 273; and S. Hamood, “EU–Libya Cooperation on Migration: A Raw
Deal for Refugees and Migrants?,” (2008) 21(1) Journal of Refugee Studies 19.
409
See Chapter 4.1 at note 35. Sadly, the High Court of Australia felt constrained by domestic
legislation allowing refugees to be sent to countries such as Papua New Guinea on the basis
of a designation that “need not be [made] by reference to the international obligations or
domestic law of that country” to find that while “[t]here may be some doubt whether the
provisions . . . can be said to respond to Australia’s obligations under the Refugee
Convention . . . However, there was no statutory requirement that the Minister be satisfied
of these matters in order to exercise the relevant power”: Plaintiff S156/2013 v. Minister for
Immigration and Border Protection, [2014] HCA 22 (Aus. HC, June 18, 2014), at [10],
[44]–[46].
410
International Law Commission, “Articles on the Responsibility of States for
Internationally Wrongful Acts,” UN Doc. A/56/10; GAOR, 56th Sess., Supp. No. 10
(2001), at Art. 8.

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 390 4 ri g h t s of r e f u g e es ph y s i c a l l y p r e s e nt

which is . . . acknowledged and adopted by the State as its own.”411 Where these
requirements are met, an act that would amount to an exercise of extraterri-
torial jurisdiction is no less so because it is committed by an entity such as a
private corporation at the behest of a government than if committed directly by
officials of the state party itself.

4.1.3.2 Cooperative Extraterritorial Deterrence

No doubt prompted by the realization that significant obligations flow from the
duty of non-refoulement, wealthier countries have turned to cooperative variants
of deterrence in the hope of circumventing their duties of protection. Rather than
relying solely on unilateral deterrent strategies, wealthy countries now increas-
ingly conscript poorer buffer states to do much of the work of interception for
them412 – as in the case of Italian agreements with Libya,413 US arrangements with
Mexico,414 and Spanish accords with Cabo Verde, Mauritania, and Senegal.415
This geographical reorientation is thought to be legally instrumental because even
as international law has evolved to make clear that liability under the non-
refoulement norm ensues for actions taken by a state outside its borders, govern-
ments have assumed that actions undertaken under the jurisdiction of the author-
ities of other countries are legally risk-free. With poorer states often willing for
economic, political, and other reasons to serve as the gatekeepers to the developed
world,416 wealthier countries have therefore sought to insulate themselves from
liability for refugee deterrence by having such action take place under the sover-
eign authority of another country. Ad hoc and bilateral arrangements have now
spawned a series of more comprehensive arrangements. Under the American-led
Merida Initiative,417 the Bali Process co-chaired by Australia and Indonesia,418
and the European Union’s “external dimension,”419 developed states are crafting
regional platforms that embed asylum and migration questions into the main-
stream of their foreign policy.

411
Ibid. at Art. 11. 412 See generally Gammeltoft-Hansen, Access to Asylum.
413
See text at note 39. 414 See text at note 42. 415 See text at note 41.
416
See e.g. J. Niessen and Y. Schibel eds., International Migration and Relations with Third
Countries: European and US Approaches (2004); S. Lavenex, “Shifting Up and Out: The
Foreign Policy of European Immigration Control,” (2006) 29 Western European Politics
329, at 330–333; A. Geddes, “Migration as Foreign Policy? The External Dimension of EU
Action on Migration and Asylum,” (2009) 2 Swedish Inst. European Policy Studies 1, at 16.
417
The Merida Initiative is a multi-year agreement between the United States and Mexico to
combat drug smuggling, transnational crime, and illegal immigration. See generally
I. Vaughne ed., The Merida Initiative: US Counterdrug and Anticrime Assistance for
Mexico (2010).
418
S. Kneebone, “The Bali Process and Global Refugee Policy in the Asia-Pacific Region,”
(2014) 27 Journal of Refugee Studies 596, at 599–610.
419
C. Boswell, “The ‘External Dimension’ of EU Immigration and Asylum Policy,” (2003) 79
International Affairs 619; see also Tampere European Council, European Parliament,
Presidency Conclusions (1999), at [15]–[16].

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 4.1 right to enter a nd remain in an asylum state 391

These strategies might seem capable of enabling states to evade legal liabil-
ity, at least where the collaboration is with a partner state, such as Indonesia or
Libya, that is itself not bound by Art. 33’s duty of non-refoulement. This is
because the primary form of jurisdiction – and the lynchpin to liability for
refoulement – is control over territory, and such control is normally exclusive.
But neither of the alternative bases for establishing jurisdiction (authority over
individuals nor the exercise of public powers)420 necessarily preempts the
simultaneous jurisdiction of a territorial or cooperating state. The question
thus arises whether the state acting extraterritorially may be held to exercise
jurisdiction in the case of such non-exclusivity.
Under general norms of public international law, the fact that more than
one state has jurisdiction does not diminish the individual responsibility of any
particular state.421 Human rights jurisprudence has aligned with this approach,
expressly rejecting an “all or nothing” approach, and finding that “rights can be
‘divided and tailored.’”422 Thus, for example, the European Court of Human
Rights found that both Moldova and Russia had exercised jurisdiction over
individuals detained in the Transnistrian region – Russia due to its decisive
influence over the local regime, and Moldova through its de jure sovereignty
over the area – and determined that simultaneous yet differentiated human
rights responsibility followed.423 The European Court of Human Rights has
also rejected the view that the Netherlands had no jurisdiction over a com-
mand checkpoint in Iraq manned by its troops simply because the United
Kingdom – as a formal occupying power – might also have jurisdiction there.
To the contrary, the Court found that a party “is not divested of its ‘jurisdic-
tion’ . . . solely by dint of having accepted the operational control of . . . a
United Kingdom officer.”424
The same principle was found to apply where distinct actions by more than
one state result in a common harm. In the case of MSS v. Belgium and Greece it
was determined that Belgium was in breach for returning the applicant to
Greece contrary to the duty of non-refoulement, even as Greece was found
liable for the failure to establish adequate asylum procedures and to avoid the
ill-treatment of those seeking its protection.425 As such, depending on the
nature of the role, the stationing of officials in a transit state may amount to

420
See Chapter 3.1.1 at note 69 ff. and note 80 ff.
421
Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, [1992]
ICJ Rep 240, at 261–262; East Timor (Portugal v. Australia), [1995] ICJ Rep 90, at 104–105;
Corfu Channel (United Kingdom v. Albania), [1949] ICJ Rep 4, at 36.
422
Al-Skeini v. United Kingdom, (2011) 53 EHRR 589 (ECtHR, July 7, 2011), at [137]; Hirsi
Jamaa v. Italy, (2012) 55 EHRR 21 (ECtHR [GC], Feb. 23, 2012), at [74].
423
Ilaşcu v. Moldova, Dec. No. 48787/99 (ECtHR, July 8, 2004), at [376]–[394]; see also Drozd
v. France, [1992] ECHR 52 (ECtHR, July 26, 1992), at [91]–[96].
424
Jaloud v. Netherlands, Dec. No. 47708/08 (ECtHR, Nov. 20, 2014), at [143].
425
MSS v. Belgium, Dec. No. 30696/96 (ECtHR, Jan. 21, 2011).

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 392 4 ri g ht s o f re f u g e e s p hy s i c a l l y p r e s e n t

shared jurisdiction by virtue of authority over individuals; that was almost

certainly the case when UK officials stationed in Prague Airport made deci-
sions about who would be allowed to board UK-bound flights426 (though as
previously noted, Czech nationals trapped by this policy were not yet refugees,
meaning there was no breach of Art. 33’s duty of non-refoulement).427 Whether
liability arises from placing Australian Airline Immigration Officers in refugee
transit states428 is, however, less clear: while the mere giving of support and
advice to local officials does not amount to de facto control over the refugees, it
would be otherwise if shown that transit state officials simply executed the
turn-back decisions dictated by the Australian officials.429
Importantly, particularized liability may ensue even when not all of the states
exercising jurisdiction are bound by the same international legal obligations. In Al-
Skeini, the United Kingdom was held responsible under the European Convention
on Human Rights even though it shared its jurisdiction in Iraq with the United
States and other non-party states making up the Coalition Provisional Authority
following the removal of the Ba’ath regime.430 Similarly, the active assistance of
Kenyan authorities in the arrest of the PKK leader in Nairobi was considered in
Öcalan; yet this did not detract from a finding of Turkish jurisdiction once Turkish
authorities took him into custody.431 Accordingly, the fact that a partner state is
not a party to the Refugee Convention (for example, Libya, which has entered into
cooperation agreements with Italy)432 is no bar to finding the sponsoring state
party exercising jurisdiction to be liable.
Nor does it matter whether shared jurisdiction exists directly among the states
in question or is achieved by the delegation of authority to an agency or organ.433
In TI v. United Kingdom,434 the European Court of Human Rights determined that

where States establish international organisations, or mutatis mutandis

international agreements, to pursue co-operation in certain fields of activ-
ities, there may be implications for the protection of fundamental rights. It
would be incompatible with the purpose and object of the Convention if
Contracting States were thereby absolved from their responsibility under
the Convention in relation to the field of activity covered by such
attribution.435
426
See text at note 52. 427 See Chapter 4.1.1 at note 182. 428 See text at note 51.
429
Engagement of this kind may, however, amount to unlawfully aiding or assisting another
state to breach its legal obligations: See text at note 442 ff.
430
Al-Skeini v. United Kingdom, (2011) 53 EHRR 589 (ECtHR, July 7, 2011), at [144]–[150].
431
Öcalan v. Turkey, Dec. No. 46221/99 (ECtHR, May 12, 2005), at [93].
432
See text at note 51.
433
International Law Commission, “Articles on the Responsibility of States for
Internationally Wrongful Acts,” UN Doc. A/56/10; GAOR, 56th Sess., Supp. No. 10
(2001), at art. 47, comment 125. This is corroborated by International Law Commission,
“Draft Articles on the Responsibility of International Organisations,” UN Doc. A/66/10;
GAOR, 63rd Sess., Supp. No. 10 (2011), at arts. 58–62, comments 89–90.
434
TI v. United Kingdom, Dec. No. 43844/98 (ECtHR, Mar. 7, 2000). 435 Ibid. at 15.

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 4.1 right to enter and remai n in an asylum state 393

Because legal liability is not avoided when authority is delegated to an inter-

national organization,436 patrols conducted under the auspices of such entities
as the European Union’s Frontex agency (and its successor European Border
and Coast Guard Agency)437 still engage the liability of each participating state
whose officials or agents have taken part in an action that gives rise to
jurisdiction, and which leads to refoulement or another human rights breach.
So too does the entrusting to NATO of the duty to intercept boats carrying
refugees in the Aegean without regard to non-refoulement obligations.438
It is thus clear that the notion of shared jurisdiction – allowing more than
one state to be held liable for a given breach of human rights as a function of its
own actions, whatever the liability of other states – is an important bulwark
against cooperation-based forms of non-entrée that purport to leave partner
states holding the bag for the refoulement of refugees. As the European Court
of Human Rights noted succinctly in Xhavara, the “Italian–Albanian
Agreement cannot, by itself, engage the responsibility of [Albania] under the
Convention for any action taken by Italian authorities in the implementation
of this agreement.”439
But what of the situation where the involvement of the sponsoring state falls
short of establishing jurisdiction, even under one of the expanded notions of
jurisdiction?440 For example, states are clearly not exercising jurisdiction when

436
D. Sarooshi, International Organisations and their Exercise of Sovereign Powers (2007), at
64; O. de Schutter, International Human Rights Law: Cases, Materials, Commentary
(2010), at 216–238. State responsibility for acts committed by states acting under the
authority of the UN Security Council remains a special case: Behrami v. France, (2007) 45
EHRR 85 (ECtHR, May 31, 2007).
437
Regulation (EU) 2016/1624 of the European Parliament and of the Council of 14 September
2016 on the European Border and Coast Guard and amending Regulation (EU) 2016/399 of
the European Parliament and of the Council and repealing Regulation (EC) No 863/2007 of
the European Parliament and of the Council, Council Regulation (EC) No 2007/2004 and
Council Decision 2005/267/EC (OJ 2016 L251/1).
438
See text at note 48.
439
Xhavara v. Italy, Dec. No. 39473/98 (ECtHR, Jan. 11, 2001). The European Court of
Human Rights further considered the impact of bilateral agreements in Al-Saadoon, in
which the United Kingdom argued that since United Kingdom forces operated in Iraq
subject to a memorandum of understanding establishing Iraqi jurisdiction, the United
Kingdom was under a legal obligation to transfer the applicants to the Iraqi authorities
despite a known risk that this might subject the applicants to the death penalty. Recalling
the Soering principle that such a transfer would constitute refoulement, the Court held that
“a Contracting Party is responsible under Article 1 of the Convention for all acts and
omissions of its organs regardless of whether the act or omission in question was a
consequence of domestic law or of the necessity to comply with international legal
obligations. Article 1 makes no distinction as to the type of rule or measure concerned
and does not exclude any part of the Contracting Party’s ‘jurisdiction’ from scrutiny under
the Convention”: Al-Saadoon v. United Kingdom, Dec. No. 61498/08 (ECtHR, June 30,
2009), at [128].
440
See Chapter 3.1.1.

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 394 4 ri g ht s of re f u g e e s p hy s i c a l l y p r e s e n t

they provide only training or material assistance to a partner state. Even when
immigration officers or other officials are posted to another country as advis-
ers, there will be no exercise of jurisdiction unless the authorities of the
territorial state can be shown to act under the direction and control of the
sponsoring state. There is nonetheless an emerging consensus that inter-
national law will hold states responsible for aiding or assisting another state’s
wrongful conduct441 even where the sponsoring state is not exercising juris-
diction. This understanding is most clearly set out in Article 16 of the
International Law Commission’s Articles on State Responsibility:

A State which aids or assists another State in the commission of an

internationally wrongful act by the latter is internationally responsible
for doing so if: (a) That State does so with knowledge of the circumstances
of the internationally wrongful act; and (b) The act would be internation-
ally wrongful if committed by that State.442

While the ILC Articles are not, of course, formally binding, Article 16 has
garnered wide support as a matter of state practice and opinio juris.443 In the
Bosnian Genocide case, for example, the International Court of Justice drew on
Article 16, noting that it considered the article to be an expression of customary
international law.444 The Venice Commission of the Council of Europe similarly
referred to Article 16 as applicable to European states contributing to instances of
refoulement and other human rights abuses in the context of the US-led
441
See e.g. H. Aust, Complicity and the Law of State Responsibility (2013) (Aust, Complicity);
J. Crawford, State Responsibility: The General Part (2013) (Crawford, State Responsibility);
M. Gibney, K. Tomaševski, and J. Vedsted-Hansen, “Transnational State Responsibility
for Violations of Human Rights,” (1999) 12 Harvard Human Rights Journal 267.
442
International Law Commission, “Articles on the Responsibility of States for
Internationally Wrongful Acts,” UN Doc. A/56/10; GAOR, 56th Sess., Supp. No. 10
(2001), at art. 16. Earlier drafts of the ILC Articles equally referred to “complicity” and
“accessory” responsibility, but “aid and assistance” was eventually chosen as a more
neutral-sounding term: G. Nolte and H. Aust, “Equivocal Helpers – Complicit States,
Mixed Messages and International Law,” (2009) 58 International and Comparative Law
Quarterly 1. As Milanovic has pointed out, “aid and assistance” may perhaps best be
thought of as a particular kind of complicity, involving a degree of material assistance
beyond mere instigation. M. Milanovic, “State Responsibility for Genocide: A Follow-Up,”
(2007) 18 European Journal of International Law 669 (Milanovic, “State Responsibility for
Genocide”), at 682.
443
Aust, Complicity, at 107–191 (providing an overview in this area). As Aust concludes,
“[t]he number of positive statements available allows us to ascribe the necessary opinio
juris to the elements of practice we have assembled to a degree that is seldom found in
international law . . . [N]ot only can we point towards a significant amount of practice
here, but we can underline its legal significance with the amount of support Article 16 ASR
[ILC Articles on State Responsibility] has found in the deliberations of States in the United
Nations”: ibid. at 186.
444
Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia), [2007] ICJ Rep 43, at [420].

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 4.1 right to enter and remai n in an asylum state 395

extraordinary rendition program,445 as did Judge Pinto de Albuquerque in his

separate opinion in Hirsi.446 This approach is moreover very much in line with the
general view of the European Court of Human Rights that international human
rights law is to be interpreted in the light of the law on state responsibility:

[P]rinciples underlying the Convention cannot be interpreted and applied

in a vacuum. The Court must also take into account any relevant rules of
international law when examining questions concerning its jurisdiction
and, consequently, determine State responsibility in conformity with the
governing principles of international law.447

The commentary to Article 16 notes moreover that the assistance need not be
essential to performing the illegal act, so long as it contributes significantly
thereto448 – suggesting, at the very least, that action beyond mere instigation is
required.449 State responsibility does however arise where a state provides
“material aid to a State that uses the aid to commit human rights violations.”450
The ICJ thus sensibly determined in the Bosnian Genocide case that the supply
of weapons, military equipment, and financial resources amounted to “aid and
assistance” by the Federal Republic of Yugoslavia to the army of Republika
Srpska.451
445
European Commission for Democracy Through Law (Venice Commission), “On the
International Legal Obligations of Council of Europe Member States in Respect of
Secret Detention Facilities and Inter-State Transport of Prisoners,” Op. No. 363/2005,
CDL-AD(2006)009 (2006), at [44]–[45].
446
Hirsi Jamaa v. Italy, (2012) 55 EHRR 21 (ECtHR [GC], Feb. 23, 2012), at [97] (separate
opinion of Judge Pinto de Albuquerque).
447
Banković v. Belgium, Dec. No. 52207/99 (ECtHR, Dec. 12, 2001), at [57]. Indeed, Article 6
of the ILC Articles on State Responsibility was applied in Jaloud to determine questions of
attribution between the Netherlands and the United Kingdom: Jaloud v. Netherlands, Dec.
No. 47708/08 (ECtHR, Nov. 20, 2014), at [151]. Similarly, the Court has applied Article 5
of the parallel Draft Articles on the Responsibility of International Organizations to
determine the question of attribution between the United Kingdom and the United
Nations: Al-Jedda v. United Kingdom, Dec. No. 27021/08 (ECtHR, July 7, 2011), at [84].
448
“There is no requirement that the aid or assistance should have been essential to the
performance of the internationally wrongful act; it is sufficient if it contributed signifi-
cantly to that act”: International Law Commission, “Articles on the Responsibility of States
for Internationally Wrongful Acts,” UN Doc. A/56/10; GAOR, 56th Sess., Supp. No. 10
(2001), Art. 16, at [5].
449
Aust, Complicity, at 209; Crawford, State Responsibility, at 403; Milanovic, “State
Responsibility for Genocide,” at 682.
450
International Law Commission, “Articles on the Responsibility of States for
Internationally Wrongful Acts,” UN Doc. A/56/10; GAOR, 56th Sess., Supp. No. 10
(2001), Art. 16, at [9].
451
Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia), [2007] ICJ Rep 43, at [239]–[241], [422]. See also
International Law Commission, “Articles on the Responsibility of States for
Internationally Wrongful Acts,” UN Doc. A/56/10; GAOR, 56th Sess., Supp. No. 10
(2001), Art. 16, at [7].

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 396 4 ri g ht s of re f u g e es p hy s i c a l l y p r e s e n t

In line with these understandings, a state which takes steps such as provid-
ing maritime patrol vessels or border control equipment, which seconds
border officials, or which shares relevant intelligence or directly funds migra-
tion control efforts that assist another country to breach its non-refoulement
obligations is taking action that can fairly be characterized as within the ambit
of aiding or assisting. A clear example would be the transporting of Libyan,
Mauritanian, and Senegalese officials aboard European ships in order to enable
those officials to conduct refugee interceptions,452 or France’s provision of aid
to Italy specifically to blockade Italian ports and force North African refugees
away.453 Equally clearly, US collaboration with Central American states –
including not only funding and training for officials, but even the deployment
of US security officials to assist with interceptions of US-bound refugees454 –
amounts to unlawful aiding or assisting in the push-backs of those refugees.
The massive financial investment of the European Union in forcing refugees to
remain in Turkey,455 from which country the refoulement of Syrian and other
refugees has been documented,456 also likely meets this threshold. On the other
hand, merely applying diplomatic pressure to introduce or enforce exit migra-
tion controls or to sign readmission agreements – while undoubtedly creating a
climate within which refoulement may occur – is likely too remote from the
harm to be deemed aiding or assisting the commission of refoulement.457 Nor
does a pure act of omission by, for example, failing to step in to prevent an
instance of refoulement by another state, rise to the level of aiding or assisting
that country to breach its obligations.458
Even where the sponsoring state takes more direct forms of action, however,
Article 16 provides that the assisting state must also have “knowledge of the
circumstances of the internationally wrongful act.”459 As such, liability does

452
See text at note 50. 453 See text at notes 63–65. 454 See text at notes 43–44.
455
See text at note 49. 456 See text at note 112.
457
R. Byrne et al. eds., New Asylum Countries: Migration Control and Refugee Protection in an
Enlarged European Union (2002), at 16.
458
Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia), [2007] ICJ Rep 43, at [222]–[223]; Crawford, State
Responsibility, at 403–405.
459
International Law Commission, “Articles on the Responsibility of States for
Internationally Wrongful Acts,” UN Doc. A/56/10; GAOR, 56th Sess., Supp. No. 10
(2001), Art. 16. Indeed, the commentary goes further, suggesting both an intention and
a consummation requirement, namely that aid or assistance must be given “with a view to
facilitating the [internationally] wrongful act, and must actually do so”: ibid. at [5]. The
interpretation of this requirement has been an issue of some contestation both within and
outside the ILC. On the one hand, it could be taken to imply that the assisting state must
share the wrongful intent of the principal state, effectively narrowing the scope of
application: Aust, Complicity, at 239–240; Milanovic, “State Responsibility for
Genocide,” at 682–684. The International Court of Justice raised this question in the
Genocide case, but ultimately left it unanswered: “Before the Court turns to an examin-
ation of the facts, one further comment is required. It concerns the link between the

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 4.1 ri ght to enter and remain in an asylum state 397

not follow where aid or assistance given in good faith is subsequently misused by
another country; thus a state providing development aid is not responsible if,
unbeknownst to it, that aid is used to implement border controls that lead to the
refoulement of refugees. It is otherwise, however, where the sponsoring state has
at least constructive knowledge that its contributions will aid or assist another
country to breach its obligations and chooses to aid or assist despite such
knowledge. For example, in Hirsi, Italy argued that it reasonably considered
Libya to be a “safe host country” based on its ratification of several human rights
treaties and the African Union’s regional refugee treaty, coupled with the express
stipulation in the Italian–Libyan agreement requiring Libya to comply with
international human rights law.460 Relying on these formal commitments, Italy
argued that it “had no reason to believe that Libya would evade its commit-
ments.”461 This argument was, however, rejected by the Court:

[T]he Court is bound to observe that the existence of domestic laws and the
ratification of international treaties guaranteeing respect for fundamental
rights are not in themselves sufficient to ensure adequate protection against
the risk of ill-treatment where, as in the present case, reliable sources have
reported practices resorted to or tolerated by the authorities . . .
The Court notes again that [this] situation was well known and easy to
verify on the basis of multiple sources. It therefore considers that when the
applicants were removed, the Italian authorities knew or should have
known that, as irregular migrants, they would be exposed in Libya to
treatment in breach of the Convention and that they would not be given
any kind of protection in that country.462

This holding aligns neatly with the general refusal of courts to countenance
willful blindness to readily ascertainable facts.463

specific intent (dolus specialis) which characterizes the crime of genocide and the motives
which inspire the actions of an accomplice (meaning a person providing aid or assistance
to the direct perpetrators of the crime): the question arises whether complicity presup-
poses that the accomplice shares the specific intent (dolus specialis) of the principal
perpetrator. But whatever the reply to this question, there is no doubt that the conduct
of an organ or a person furnishing aid or assistance to a perpetrator of the crime of
genocide cannot be treated as complicity in genocide unless at the least that organ or
person acted knowingly, that is to say, in particular, was aware of the specific intent (dolus
specialis) of the principal perpetrator. If that condition is not fulfilled, that is sufficient to
exclude categorization as complicity. The Court will thus first consider whether this latter
condition is met in the present case. It is only if it replies to that question of fact in the
affirmative that it will need to determine the legal point referred to above”: Application of
the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia), [2007] ICJ Rep 43, at [421].
460
Hirsi Jamaa v. Italy, (2012) 55 EHRR 21 (ECtHR [GC], Feb. 23, 2012).
461
Ibid. at [98]. 462 Ibid. at [128], [131].
463
See e.g. Aust, Complicity, at 244–249; I. Brownlie, System of the Law of Nations: State
Responsibility Part 1 (1983), at 12. This would align the knowledge requirement for

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 398 4 ri g ht s of re f u g e e s p hy s i c a l l y p r e s e n t

Beyond the requirement of knowledge, liability for aiding or assisting can be

imposed only where the act “would be internationally wrongful” if committed
by both the principal state actor and the state said to be aiding or assisting that
country.464 The starting point is therefore to ascertain whether the conduct in
question is in breach of an international obligation of the principal state – not a
minor matter when, as is often the case, non-entrée cooperation is undertaken
with a state that is not bound by the Refugee Convention or Protocol, including
such key partner states as Libya, Indonesia, and Malaysia.465 Some would no
doubt seek to locate the required unlawfulness in the alleged existence of a
customary legal duty of non-refoulement.466 The better approach, however, is
to draw on Crawford’s view that Article 16(b) “merely requires that the
conduct in question would have been internationally wrongful if committed
by the assisting state and says nothing about the identity of norms or
sources,”467 thus opening the possibility of liability for aiding or assisting
where the act in question is unlawful for both the principal and sponsoring
states, albeit on the basis of distinct legal norms.468 Many partner states not
bound by the Refugee Convention or Protocol are nonetheless parties to other
human rights instruments that contain a cognate duty of non-refoulement
(though the scope of the same may not in all cases be identical),469 many of
which provide the required basis for a finding of international wrongfulness.
For example, Libya and Indonesia have both ratified the International
Covenant on Civil and Political Rights (which has been interpreted to impose
a duty of non-refoulement at least in cases involving risk of the breach of
Articles 6 and 7)470 as well as the Convention against Torture (which

complicity with that ordinarily applied in the context of non-refoulement. But see
Crawford, State Responsibility, at 406.
464
This is a reflection of the pacta tertii principle that no state is bound by the obligations of
another state vis-à-vis third states. See Vienna Convention on the Law of Treaties, 1155
UNTS 331 (UNTS 18232), at Arts. 34–35.
465
See T. Gammeltoft-Hansen, “The Externalisation of European Migration Control and the
Reach of International Refugee Law,” in E. Guild and P. Minderhoud eds., The First
Decade of EU Migration and Asylum Law 273 (2012).
466
The arguments against this view are detailed in J. Hathaway, “Leveraging Asylum,” (2010)
45(3) Texas International Law Journal 503; see also Chapter 4.1.6.
467
Crawford, State Responsibility, at 410.
468
Notably, the International Court of Justice, when considering that Article 16 could be
applied analogously to state complicity under the Genocide Convention, did not consider
the equal obligations requirement to be essential since the Bosnian Serb forces committing
the genocide did not constitute a state: Application of the Convention on the Prevention
and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia), [2007] ICJ
Rep 43.
469
These alternative duties of non-refoulement are described in Chapter 4.1.6. at note 815 ff.
470
UN Human Rights Committee, “General Comment 20: Prohibition of Torture or Other
Cruel, Inhuman or Degrading Treatment or Punishment (Article 7),” UN Doc. HRI/GEN/
1/Rev.1 at 30, 44th Sess. 1992 (1994), at [9].

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 4.1 r ight to enter and remain in an asylum state 399

proscribes return to torture in Article 3).471 Indeed, it may even be the case that
it would be “internationally wrongful” for a partner state to breach the terms of
an international non-entrée cooperation agreement of the kind favored by the
European Union with Mediterranean and Eastern European states,472 which
commonly condition such cooperation on respect for refugee and other rights.
In sum, three evolving areas of international law – jurisdiction, shared
responsibility, and liability for aiding or assisting – are likely to stymie many
if not all of the new forms of cooperative deterrence of refugees. The fact that
jurisdiction, and hence liability, is now understood to flow not just from
territory, but also from authority over individuals in areas beyond a state’s
jurisdiction and indeed from the exercise of public powers abroad, has
expanded the scope of accountability for core refugee rights, including in
particular the duty of non-refoulement. Particularized liability may moreover
ensue even where more than one state is liable for the violation of human
rights. And even when no case can be made for the exercise of jurisdiction, the
emerging law on liability for aiding or assisting another state to breach its
duties under international law has enormous potential to close the account-
ability gaps that the new generation of cooperative deterrence practices seeks to
exploit.

4.1.4 Individuated Exceptions

States are not bound to honor the Refugee Convention’s duty of non-
refoulement473 in the case of refugees who are individually determined to
pose a fundamental threat to the receiving state.474 Critically, Art. 33(2) does

471
See B. Gorlick, “The Convention and the Committee against Torture: A Complementary
Protection Regime for Refugees,” (1999) 11 International Journal of Refugee Law 479.
472
See text at note 46.
473
“The benefit of the present provision may not, however, be claimed by a refugee whom
there are reasonable grounds for regarding as a danger to the security of the country in
which he is, or who, having been convicted by a final judgment of a particularly serious
crime, constitutes a danger to the community of that country [emphasis added]”: Refugee
Convention, at Art. 33(2). States also bound by Art. II(3) of the Convention Governing the
Specific Aspects of Refugee Problems in Africa, 1001 UNTS 45 (UNTS 14691), done Sept.
10, 1969, entered into force June 20, 1974 (“AU Refugee Convention”) enjoy no right to
engage in refoulement of a refugee, as that treaty’s non-refoulement duty is framed without
qualification. See generally Chapter 1.5.3 at note 262.
474
Despite the prerogative afforded by Art. 33(2), state parties to other human rights treaties –
for example, to the European Convention on Human Rights, to the Convention against
Torture, and to the International Covenant on Civil and Political Rights – will be subject to
additional constraints on removal as a result of these other treaty obligations: see Chapter
4.1.6 at note 815 ff. Lauterpacht and Bethlehem go much farther, suggesting that – the clear
language of Art. 33(2) notwithstanding – there is today a basis for understanding the duty of
non-refoulement to include no exceptions whatever: Lauterpacht and Bethlehem, “Non-
refoulement,” at [151]–[158]. The argument is based on an unsound construction of Art.

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 400 4 r i gh t s of ref ug ees physic ally present

not exclude persons from refugee status,475 but rather provides the means for
states to expel or return two categories of refugees.476 First, it authorizes the
refoulement of any refugee whom there are reasonable grounds for regarding as
a danger to the security of the asylum country, whether or not there is an
allegation of criminality. Second, Art. 33(2) sanctions the removal of refugees
adjudged to endanger the safety of the community of the asylum country
because of particularly serious crimes committed in the state of refuge or
elsewhere, whether or not those crimes remain justiciable. While Art. 33(2)
thus affords asylum states the means to protect their most basic interests, it is –
as described in detail below – a provision that is carefully framed to ensure that
a refugee’s right to protection can be forfeited only in cases of clearly demon-
strated and very substantial risk to the host country or its people.
There is, however, frequently confusion between the right of a state to
expel or return dangerous refugees pursuant to Art. 33(2) and the exclusion
of fugitives from justice under Art. 1(F)(b) of the Convention.477 Art.

33(2) which draws on a mix of regional norms, norms derived from other instruments,
and policy positions of international agencies. While the authors “are not ultimately
persuaded that there is a sufficiently clear consensus opposed to exceptions to non-
refoulement to warrant reading the 1951 Convention without them,” they nonetheless
insist that the exceptions “must be read subject to very clear limitations”: ibid. at [158].
475
“The 1951 Convention foresees that . . . refugees . . . can be subject to . . . expulsion
proceedings in accordance with Article 32 and, in exceptional cases, to removal under
Article 33(2). Neither action per se involves revocation of refugee status . . . [On the other
hand] [w]here the [Art. 1(F)] exclusion clauses apply, the individual cannot be recognised
as a refugee and benefit from protection under the 1951 Convention. Nor can the
individual fall within the UNHCR’s mandate”: UNHCR, “Background Note on the
Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the
Status of Refugees,” Sept. 4, 2003, at [17], [21]. It has thus been determined that invocation
of provisions under EU law implementing Art. 33(2) “cannot be interpreted as meaning
that . . . [the person concerned] is no longer a refugee for purposes of . . . the Geneva
Convention . . . [It] in no way means that he or she ceases to satisfy the material condi-
tions, relating to a well-founded fear of persecution in his or her country of origin, on
which his or her being a refugee depends”: M v. Czech Republic, X and X v. Belgium, Dec.
Nos. C-391/16, C-77/17, and C-78/17 (CJEU, May 14, 2019), at [97]–[98].
476
See e.g. MS and MBT v. Secretary of State for the Home Department, [2017] EWCA Civ
1190 (Eng. CA, July 31, 2017), at [7] (noting that but for the countervailing requirements
of the European Convention on Human Rights, Art. 33(2) allows “a person guilty of acts of
the kind specified [to] . . . be refused asylum and returned to a country where he is at
serious risk of persecution or other serious harm”).
477
See generally Hathaway and Foster, Refugee Status, at 537–543. See e.g. decisions of the
Supreme Court of Canada effectively treating the domestic incorporation of Art. 1(F)
exclusion as the basis for permissible refoulement in Jószef Németh v. Minister of Justice of
Canada, [2010] SCC 56 (Can. SC, Nov. 25, 2010), at [23], [108], and Tiberiu Gavrila v.
Minister of Justice of Canada, [2010] SCC 57 (Can. SC, Nov. 25, 2010), at [12]. European
Union law shows that the confusion can also run in the opposite direction, with refusal of
refugee status purportedly authorized in relation to persons in fact subject only to
particularized refoulement under Art. 33(2), but who actually remain refugees under the

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 4.1 r ight to enter and remain in an asylum state 401

1(F)(b),478 inserted at the insistence of countries that perceived themselves to be

vulnerable to large flows of refugees,479 was designed to afford the possibility of
pre-admission exclusion from refugee status without recourse to a formal trial to
assess the criminal charge. But it is a provision that applies in only very narrowly
defined circumstances,480 specifically only to persons believed to have com-
mitted serious, pre-entry crimes which remain justiciable.481 While the
complete exclusion of such persons from refugee status may appear

Convention: Directive 2011/95/EU of the European Parliament and of the Council of 13

December 2011 on standards for the qualification of third-country nationals or stateless
persons as beneficiaries of international protection, for a uniform status for refugees or for
persons eligible for subsidiary protection, and for the content of the protection granted
(recast) (“EU Qualification Directive”), at Art. 14(4)–(5). This point was argued, but not
resolved, in EN (Serbia) and KC (South Africa) v. Secretary of State for the Home
Department, [2009] EWCA Civ 630 (Eng. CA, June 26, 2009), at [63]. The UK Home
Office nonetheless takes the view that the Qualification Directive entitles it to rely on the
equivalent of Art. 33(2) in “cases where a decision is yet to be made on an asylum claim”:
UK Home Office, “Exclusion (Article 1F) and Article 33(2) of the Refugee Convention,”
July 1, 2016, at 5. See generally A. Zimmermann and P. Wennholz, “Article 1 F,” in
A. Zimmermann ed., The 1951 Convention Relating to the Status of Refugees and its 1967
Protocol: A Commentary 579 (2011) (Zimmermann and Wennholz, “Article 1F”), at
590–591.
478
“The provisions of this Convention shall not apply to any person with respect to whom
there are serious reasons for considering that . . . he has committed a serious non-political
crime outside the country of refuge prior to this admission to that country as a refugee”:
Refugee Convention, at Art. 1(F)(b).
479
“France’s reason for taking such a firm stand on the subject lay in the fact that she had to
administer the right of asylum under much more difficult conditions than did countries
which were in a position to screen immigrants carefully at their frontiers”: Statement of
Mr. Rochefort of France, UN Doc. A/CONF.2/SR.24, July 17, 1951, at 13. See also
Statement of Mr. Makiedo of Yugoslavia, ibid. at 18. These states were concerned not to
undermine the possibilities for resettlement of the refugees admitted: “If refugee status was
to be granted to criminals, immigration countries could not fail to question its value”:
Statement of Mr. Rochefort of France, UN Doc. A/CONF.2/SR.19, July 13, 1951, at 7.
480
Indeed, because of the generality of Art. 33(2) it was argued by the United Kingdom that
there was no need for a criminality exclusion clause in Art. 1(F)(b): Statement of Mr.
Hoare of the United Kingdom, UN Doc. A/CONF.2/SR.24, July 17, 1951, at 4. See also
Statement of Baron van Boetzelaer of the Netherlands, UN Doc. A/CONF.2/SR.29, July 19,
1951, at 12: “Common criminals should not enjoy the right of asylum; but that consider-
ation had already been taken care of in article [33] of the draft Convention.”
481
“There is little doubt that the primary purpose of Article 1(F)(b) was to exclude those
individuals who would abuse the status of refugee by avoiding accountability through
prosecution or punishment for a serious crime committed outside the country of refuge.
For the clause to apply, the crime must have been committed ‘outside the country of refuge
prior to his [or her] admission to that country as a refugee.’ This territorial limitation has
been relied on as a strong indication that Article 1(F)(b) was intended to exclude those
individuals who seek to abuse the status of being a refugee by evading prosecution in
another jurisdiction”: Luis Alberto Hernandez Febles v. Minister for Citizenship and
Immigration, [2014] SCC 68 (Can. SC, Oct. 30, 2014), at [101], per Abella and
Cromwell JJ. in dissent.

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 402 4 righ t s of r ef ug ee s ph y sica lly p r es en t

harsh,482 it was understood to be the only means available to ensure that refugee
law did not provide shelter to fugitives from justice.483 Because ordinary crimes
cannot normally be prosecuted in other than the country where they were
committed, any response short of the exclusion of common law criminals
from the refugee protection system (and consequential amenability to deport-
ation) was believed by the drafters to risk undermining international comity in
the fight against crime, thereby bringing the refugee system into disrepute.484
If, in contrast, the concern is not complicity in the avoidance of criminal
responsibility, but instead protection of the core interests of the host state or of
its citizenry, there is no need for the peremptory denial of refugee status.485
Criminality in the host state can, of course, be tried and punished. And even if a
convicted refugee poses a clear risk to the host community, there is no need to
strip him of his refugee status; rather it is sufficient, as Art. 33(2) provides, to
authorize the host government to divest itself of its particularized protective
responsibilities. The individual in question remains a refugee,486 and is there-
fore entitled both to UNHCR institutional assistance and to the protection of
any other state party the safety and security of which is not infringed by the
refugee’s presence within its territory.487 As described in more detail below, the
criminality branch of Art. 33(2) requires conviction by a final judgment of a
particularly serious crime.488 Beyond this, Art. 33(2) requires an additional

482
As framed by Justice Bastarache in a foundational decision of the Supreme Court of
Canada, “persons falling within Art. 1(F) of the Convention are automatically excluded
from the protections of the [Convention]. Not only may they be returned to the country
from which they have sought refuge without any determination . . . that they pose a threat
to public safety or national security, but their substantive claim to refugee status will not be
considered. The practical implications of such an automatic exclusion, relative to the
safeguards of the [Art. 33(2)] procedure, are profound”: Pushpanathan v. Minister of
Citizenship and Immigration, [1998] 1 SCR 982 (Can. SC, June 4, 1998), at [13].
483
“There is little doubt that the primary purpose of Article 1(F)(b) was to exclude those
individuals who would abuse the status of a refugee by avoiding accountability through
prosecution or punishment for a serious crime outside the country of refuge”: Luis Alberto
Hernandez Febles v. Minister for Citizenship and Immigration, [2014] SCC 68 (Can. SC,
Oct. 30, 2014), at [101].
484
See generally Hathaway and Foster, Refugee Status, at 543–544.
485
See NBMZ v. Minister for Immigration and Border Protection, [2014] FCAFC 38 (Aus.
FFC, Apr. 9, 2014), at [21], per Allsop C.J. and Katzmann J. concurring: “Article 33(2) and
the circumstances within it reflect the balance contained within the Refugee[] Convention
between protection of those who need it, and the legitimate entitlement of Contracting
States not to be required to give protection to those who pose a danger to the host State and
its people.”
486
UNHCR, “Background Note on the Application of the Exclusion Clauses: Article 1F of the
1951 Convention relating to the Status of Refugees,” Sept. 4, 2003, at [17].
487
See generally A. Zimmermann and P. Wennholz, “Article 33, para. 2,” in A. Zimmermann
ed., The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A
Commentary 1397 (2011) (Zimmermann and Wennholz, “Article 33, para. 2”), at 1413.
488
See text at note 551.

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 4.1 r i g h t t o en t er an d r emai n i n an asylu m state 403

determination that the offender “constitutes a danger to the community.” This

distinction was clearly enunciated in the Supreme Court of Canada’s
Pushpanathan decision:

The purpose of Article 1 is to define who is a refugee. Article 1(F) then

establishes categories of persons who are specifically excluded from that
definition. The purpose of Article 33 of the Convention, by contrast, is not
to define who is and who is not a refugee, but rather to allow for the
refoulement of a bona fide refugee to his or her native country where he or
she poses a danger to the security of the country of refuge, or to the safety
of the community . . . Thus, the general purpose of Article 1(F) is not the
protection of the society of refuge from dangerous refugees, whether
because of acts committed before or after the presentation of a refugee
claim; that purpose is served by Article 33 of the Convention.489

More generally, as the Court of Justice of the European Union has observed, the
highly exceptional nature of the particularized refoulement authority means that
it can be resorted to only where “no other measure is possible or is sufficient for
dealing with the threat that the refugee poses to the security or to the public of
that Member State”;490 thus, for example, Art. 33 should be read in consonance
with Arts. 31 and 32 to allow refugees the opportunity to seek entry into a non-
persecutory state as an alternative to being returned to their home country.491
The genesis of the confusion between the functions of Art. 33(2) and Art.
1(F)(b) is a passage in the UNHCR’s Handbook suggesting that Art. 1(F)(b) is
concerned both to exclude fugitives from justice and to protect the security of
the asylum state492 – thus attributing to Art. 1(F)(b) some of the work that is
meant to be done by Art. 33(2). While more recently recognizing the import-
ance of avoiding this overlap,493 UNHCR nonetheless continues to argue for an
understanding of Art. 1(F)(b) that strays beyond the drafters’ goal of ensuring

489
Pushpanathan v. Minister of Citizenship and Immigration, [1998] 1 SCR 982 (Can. SC,
June 4, 1998), at [58]. To similar effect, the New Zealand Court of Appeal determined that
“Art. 1(F) is concerned with past acts. Art. 33(2) is only concerned with past acts to the
extent that they may serve as an indication of the behaviour one may expect from the
refugee in the future. The danger that the refugee constitutes must be a present or future
danger”: Attorney General v. Zaoui, [2005] 1 NZLR 690 (NZ CA, Sept. 30, 2004), at [166];
varied on other grounds in Attorney-General v. Zaoui, [2005] NZSC 38 (NZ SC, June 21,
2005).
490
HT v. Land Baden-Württemberg, Dec. No. C-373/13 (CJEU, June 24, 2015), at [71].
491
See Weis, Travaux, at 343. 492 UNHCR, Handbook, at [151].
493
UNHCR observed that “Article 1F should not be confused with Article 33(2)”; they are
“two provisions serving very different purposes”: UNHCR, “Background Note on the
Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the
Status of Refugees,” Sept. 4, 2003, at [10]. The agency has helpfully clarified that “[w]hile
Article 1F is aimed at preserving the integrity of the refugee protection regime, Article
33(2) concerns protection of the national security of the host country”: UNHCR,
“Statement on Article 1F of the 1951 Convention,” July 2009, at 8.

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 404 4 r igh ts of r efug ee s ph ys ica lly p r es en t

that the integrity of the refugee regime not be compromised by the admission
to asylum of criminals seeking to avoid legitimate prosecution or punish-
ment.494 Before the Supreme Court of Canada, for example, the agency
asserted that exclusion under Art. 1(F)(b) requires consideration of not only
the gravity of the crime “but [also] of how long ago the offence was committed,
the conduct of the claimant since the commission of the offence, whether the
claimant has expressed regret or renounced criminal activities, and whether
the claimant poses a threat to the security of Canada at the present time.”495
Similarly, in the United Kingdom Supreme Court, UNHCR advocated a
“twofold purpose of Article 1(F)(b), that is, denial of refugee status (a) to
those unworthy of international protection and (b) to fugitive criminals.”496
In arguing for these overly broad constructions of Art. 1(F)(b), UNHCR
regrettably subverted its own admonition not to confuse the roles of Art.
1(F)(b) and Art. 33(2) – with both the Canadian and British Supreme Courts
ruling that even refugees who were not fugitives from justice in any sense were
nonetheless subject to peremptory exclusion.497 This confusion is sadly under-
standable: if Art. 1(F)(b) allows states to exclude anyone who is unworthy of
protection because he has at some point committed a serious crime – as
UNHCR seems to suggest – why contend with the more demanding require-
ments of seeking to protect a state’s security interests against criminals by
means of authorized refoulement under Art. 33(2)?
The response usually given498 – that the role of Art. 33(2) is meant to
address post-admission criminality (because Art. 1(F)(b) is limited to crimes
committed “outside” the asylum state) – is deeply unsatisfactory. As explained
in more detail below,499 Art. 33(2) only authorizes removal at a higher

494
See Hathaway and Foster, Refugee Status, at 541–542.
495
Luis Alberto Hernandez Febles v. Minister for Citizenship and Immigration, [2014] SCC 68
(Can. SC, Oct. 30, 2014), at [4].
496
AH (Algeria) v. Secretary of State for the Home Department, [2015] EWCA Civ 1003 (Eng.
CA, Oct. 14, 2015), at [31].
497
Luis Alberto Hernandez Febles v. Minister for Citizenship and Immigration, [2014] SCC 68
(Can. SC, Oct. 30, 2014), at [35]–[36]; AH (Algeria) v. Secretary of State for the Home
Department, [2015] EWCA Civ 1003 (Eng. CA, Oct. 14, 2015), at [28]–[32].
498
“The exclusion clause now refers to crimes committed ‘prior to his (the refugee’s) admis-
sion to that country (i.e. the country of asylum) as a refugee’ while persons who have
committed a serious crime in the country of residence remain refugees, but may in certain
conditions be denied asylum and returned to their country of origin (Article 33(2) of the
Convention)”: P. Weis, “The Concept of the Refugee in International Law,” (1960) 87
Journal du droit international 928, at 984. This approach has been adopted in e.g. Luis
Alberto Hernandez Febles v. Minister for Citizenship and Immigration, [2014] SCC 68
(Can. SC, Oct. 30, 2014), at [24]–[25]; UK Home Office, “Exclusion (Article 1F) and
Article 33(2) of the Refugee Convention,” July 1, 2016, at 5–6; UNHCR, “Background
Note on the Application of the Exclusion Clauses: Article 1F of the 1951 Convention
relating to the Status of Refugees,” Sept. 4, 2003, at [10].
499
See text at note 541 ff.

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 4.1 r i g h t t o en t er an d r emai n i n an asylu m state 405

standard (“particularly serious crime” and “having been convicted by a final

judgment”) than that governing Art. 1(F)(b). As such, this account of the role
of Art. 33(2) would make sense only if it is assumed that the drafters saw those
who committed a crime on asylum state territory as “less unworthy” of
protection than those who committed a crime outside it – a proposition that
is both implausible and unsupported.500 Such concerns do not, however, arise
if the drafters’ vision of Art. 1(F)(b) – requiring only the exclusion of fugitives
from justice501 – is adopted. The comparatively relaxed standard of Art.
1(F)(b) can in this context be seen as a sensible response to the challenges of
assessing the nature of common crimes committed abroad and, in particular,
the vagaries of prosecution and punishment in a foreign state. This more
circumscribed understanding of Art. 1(F)(b) is moreover confirmed by the
Refugee Convention’s context,502 as only fugitives from justice are excluded
under the cognate provision in all predecessor refugee treaties, the contem-
poraneously drafted UNHCR Statute, and the Universal Declaration of
Human Rights upon which the Refugee Convention was based.503
In practice, however, the invitation to transmute Art. 1(F)(b) into a provi-
sion that allows states peremptorily to exclude anyone whose past criminality
makes them somehow unworthy can prove nearly irresistible to states. Indeed,
the majority of the Supreme Court of Canada departed from its own prece-
dent504 to hold that the mere fact of past criminality justifies summary exclu-
sion under Art. 1(F)(b) because such persons are to be assumed to be
“undeserving” of protection:

Article 1(F)(b) is not directed solely at fugitives and neither is it directed

solely at some subset of serious criminals who are undeserving at the time
of the refugee application. Rather, in excluding all claimants who have
committed serious non-political crimes, Article 1(F)(b) expresses the
contracting states’ agreement that such persons by definition would be
undeserving of refugee protection by reason of their serious criminality.505

This sweeping reinterpretation506 essentially allows asylum countries to refuse

protection to refugees believed to have committed a serious crime, including
500
See Hathaway and Foster, Refugee Status, at 541. 501 Ibid. at 541–542.
502
See generally Chapter 2.2. 503 See Hathaway and Foster, Refugee Status, at 541.
504
Pushpanathan v. Minister of Citizenship and Immigration, [1998] 1 SCR 982 (Can. SC,
June 4, 1998), at [58].
505
Luis Alberto Hernandez Febles v. Minister for Citizenship and Immigration, [2014] SCC 68
(Can. SC, Oct. 30, 2014), at [35].
506
The decision of the Court’s majority was based largely on the perceived absence of a
textual toehold for restricting Art. 1(F)(b) to extraditable criminals: Luis Alberto
Hernandez Febles v. Minister for Citizenship and Immigration, [2014] SCC 68 (Can. SC,
Oct. 30, 2014), at [35]–[36], an argument also made by Zimmermann and Wennholz,
“Article 1 F,” at 597 (“It remains, however, to be considered that the ordinary meaning of
the provision provides no indication of any such limitation”). Yet as the dissenting judges

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 406 4 r ights of r efugees p hysically present

those who have already been prosecuted and punished, and to do so without
any showing that they pose a risk of any kind to the host country. It thus invites
governments to do an end run on the carefully framed provisions of Art. 33(2),
which authorizes a state to divest itself of protection responsibilities to persons
who have been found guilty of serious crimes, but only if safety and security
concerns are shown to arise. In avoiding these strictures, the Canadian Supreme
Court took comfort in a throwaway comment by the Court of Justice of the
European Union that Art. 1(F)(b) operates as “a penalty for acts committed in
the past,”507 leading the Canadian court to insist that protection may be
summarily denied to anyone “who has ever committed”508 a serious crime.
It would, of course, be antithetical to the purposes of refugee protection to
send a person back to persecution as some sort of “penalty.” There is also no
basis to expand Art. 1(F)(b) beyond fugitives from justice (and only fugitives
from justice) since, for reasons described above,509 only their admission poses
a risk to the systemic integrity of refugee law – that being the rationale for
exclusion under Art. 1(F).510 While there is a critical need also to ensure that
asylum states are not left defenseless against refugees who threaten their safety
or security, that is the role of the exceptions to the duty of non-refoulement
codified in Art. 33(2).

4.1.4.1 Danger to National Security

The first category of persons legitimately subject to refoulement comprises
those “whom there are reasonable grounds for regarding as a danger to the
security of the [reception] country.” The notion of “reasonable grounds”

in Febles observed, the textual reference to persons who have committed crimes “outside”
the country of asylum is in fact consistent with such a limitation (and not with a focus on
host state security): ibid. at [105]. In any event, rules of treaty interpretation do not allow
deference to literal construction, a point also recognized by the dissenting judges: ibid. at
[101]–[116]. See generally Chapter 2.1.
507
B and D v. Germany, Dec. Nos. C-57/09 and C-101/09 (CJEU, Nov. 9, 2010), at [103]. The
CJEU nonetheless insisted that Art. 1(F)(b) should not be subverted to address “any
danger which a refugee currently poses to the Member State,” since it is “Article 33(2)
of the 1951 Geneva Convention [that allows a state to] refoule a refugee where there are
reasonable grounds for considering him to be a danger to the community of that Member
State”: ibid. at [101].
508
Luis Alberto Hernandez Febles v. Minister for Citizenship and Immigration, [2014] SCC 68
(Can. SC, Oct. 30, 2014), at [54].
509
See text at notes 478–484.
510
A risk to systemic integrity was agreed to exist in only two other cases: international
criminals and persons who have violated the principles and purposes of the United
Nations: Refugee Convention, at Arts. 1(F)(a) and 1(F)(c). See generally Hathaway and
Foster, Refugee Status, at 567–598. Drawing on the views of the UNHCR, the Supreme
Court of the United Kingdom correctly observed that Art. 1(F) should be “interpreted
restrictively and applied with caution”: Al-Sirri v. Secretary of State for the Home
Department, [2012] 3 WLR 1265 (UK SC, Nov. 21, 2012), at [16].

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 4.1 r ight to enter and remain in an asylum state 407

requires “objective”511 evidence; thus “the State concerned cannot act either
arbitrarily or capriciously and . . . it must specifically address the question of
whether there is a future risk and the conclusion on the matter must be
supported by evidence.”512 There is more generally a strong argument that
this evidentiary standard should be interpreted to align with the “serious
reasons for considering” threshold used in Art. 1(F): while there is a
variation in the English text, the original513 French version is identical in
both Art. 1(F) and Art. 33(2).514 Under this approach, there are “reasonable
grounds” for regarding a particular refugee as a danger to national security
only when “clear and convincing”515 or “clear and credible . . . strong”516
evidence has been adduced. More than just “compelling reasons” are
required.517 As the English Court of Appeal observed, this test “imposes a
demanding hurdle.”518
The drafters did not agree to a precise definition of national security, though
it is clear that delegates to the Conference of Plenipotentiaries were particularly
concerned about the possibility of Communist infiltration.519 Under the

511
Attorney-General v. Zaoui, [2005] NZSC 38 (NZ SC, June 21, 2005), at [45].
512
Attorney General v. Zaoui, [2005] 1 NZLR 690 (NZ CA, Sept. 30, 2004), at [133], per
Glazebrook J.; varied on other grounds in Attorney-General v. Zaoui, [2005] NZSC 38 (NZ
SC, June 21, 2005). In his concurring opinion, Young J. observed that “these words must
be interpreted so as to ensure that [the state party] conforms to its obligations under the
Refugee Convention and thus in light of the international understanding of what they
mean (or imply)”: ibid. at [198]. It is nonetheless true that this standard is, for example,
“less stringent than preponderance of the evidence”: In re AH, 2005 BIA Lexis 11 (US AG,
Jan. 26, 2005).
513
Ben-Nun, “British-Jewish Roots,” at 111–112.
514
Zimmermann and Wennholz, “Article 33, para. 2,” at 1413.
515
Cardenas v. Canada (Minister of Employment and Immigration), [1994] FCJ 139 (Can.
FCTD, Feb. 4, 1994), at [24]; adopted in WAKN v. Minister for Immigration and
Multicultural and Indigenous Affairs, (2004) 138 FCR 579 (Aus. FC, Sept. 23 2004), at [52].
516
Al-Sirri v. Secretary of State for the Home Department, [2012] 3 WLR 1263 (UK SC, Nov.
21, 2012), at [75].
517
HT v. Land Baden-Württemberg, Dec. No. C-373/13 (CJEU, June 24, 2015), at [75].
518
AH (Algeria) v. Secretary of State for the Home Department, [2015] EWCA Civ 1003 (Eng.
CA, Oct. 14, 2015), at [26]. The Court of Justice of the European Union has noted the logic
of a relatively demanding standard in view of the “potentially very drastic” consequences
of falling under Art. 33(2): HT v. Land Baden-Württemberg, Dec. No. C-373/13 (CJEU,
June 24, 2015), at [81].
519
“It must be borne in mind that . . . each government had become more keenly aware of the
current dangers to its national security. Among the great mass of refugees it was inevitable
that some persons should be tempted to engage in activities on behalf of a foreign Power
against the country of their asylum, and it would be unreasonable to expect the latter not to
safeguard itself against such a contingency”: Statement of Mr. Hoare of the United
Kingdom, UN Doc. A/CONF.2/SR.16, July 11, 1951, at 8. See also Statement of Mr.
Chance of Canada, ibid.: “In drafting [Art. 33], members of [the Ad Hoc] Committee
had kept their eyes on the stars but their feet on the ground. Since that time, however, the
international situation had deteriorated, and it must be recognized, albeit with reluctance,

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 408 4 righ t s of r efug ee s ph y sica lly p r es en t

modern jurisprudential views analyzed earlier,520 however, invocation of a

national security argument is appropriate where a refugee’s presence or actions
give rise to an objectively reasonable, real possibility of directly or indirectly
inflicted substantial harm to the host state’s most basic interests, including the
risk of an armed attack on its territory or its citizens, or the destruction of its
democratic institutions.
A risk to national security is by definition a grave threat.521 It is not
sufficient, for example, to assert the importance of safeguarding international
relations522 or avoiding political tension523 as the basis for excluding refugees
on national security grounds.524 Nor is there any basis in international law for
deeming a refugee to pose a threat to national security because property or
economic interests might be adversely impacted by his or her presence525 or

that at present many governments would find difficulty in accepting unconditionally the
principle [of non-refoulement].” See Ben-Nun, “British-Jewish Roots,” at 110.
520
See Chapter 3.5.1 at note 680. National security thus does not speak to health-related
concerns, which should instead be managed by mandatory treatment, quarantine, or other
proportionate constraints on freedom of movement: see note 1161. “[S]tates have a
legitimate right under international and EU law to manage their borders, including
through measures aimed at curbing risks to public health in the context of the coronavirus
pandemic. However, such measures may not prevent non-nationals from seeking protec-
tion from persecution . . . States must therefore respect the right to asylum . . . and the
principle of non-refoulement vis-à-vis persons who have arrived at their borders seeking
international protection”: European Parliament, “Tackling the Coronavirus Outbreak:
Impact on Asylum-Seekers in the EU” (2020), at 3.
521
“It must constitute a serious danger rather than a danger of some lesser order”:
Zimmermann and Wennholz, “Article 33, para. 2,” at 1417. The US, however, seems to
embrace a more sweeping definition, opining that “[a]ny level of danger to national
security is deemed unacceptable; it need not be a ‘serious,’ ‘significant,’ or ‘grave’ danger
. . . [A]ny nontrivial degree of risk [suffices to] bar eligibility”: In re AH, [2005] BIA Lexis
11 (US AG), Jan. 26, 2005.
522
The Canadian Federal Court of Appeal thus went too far in suggesting that national
security encompasses “domestic and international interests of keeping good relations with
international partners”: Minister of Public Safety and Preparedness v. Nawal Haj Khalil,
[2014] FCA 213 (Can. FCA, Sept. 30, 2014), at [35].
523
UNHCR, “Advisory Opinion regarding the scope of the national security exception under
Article 33(2) of the 1951 Convention,” Jan. 6, 2006, at 5.
524
“Concerns about New Zealand’s reputation can be taken into account [under Art. 33(2)]
only if they impinge to such a serious extent on national security that they could fairly be
said to constitute a danger to national security”: Attorney General v. Zaoui, [2005] 1 NZLR
690 (NZ CA, Sept. 30, 2004), at [141]; varied on other grounds in Attorney-General v.
Zaoui, [2005] NZSC 38 (NZ SC, June 21, 2005). But see Suresh v. Minister of Citizenship
and Immigration, 2000 DLR Lexis 49 (Can. FCA, Jan. 18, 2000), reversed on appeal in
Suresh v. Canada, [2002] 1 SCR 3 (Can. SC, Jan. 11, 2002). “[T]he ‘security of Canada’ . . .
logically extends to situations where the integrity of Canada’s international relations and
obligations are affected.”
525
The decision of Venezuelan President Maduro to order the return of Colombian refugees
on the grounds of an economic “national emergency” (See text at note 67) thus fails to
meet the required international standard. On the other hand, the court in Cheema v.

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 4.1 right to enter a nd remain in an asylum state 409

because a refugee has arrived in a disorderly way rather than availing himself or
herself of legal procedures.526 Much less can national security be said to justify
the denial of protection in order to discourage the departure of other persons
from the refugee’s country of origin.527
On the other hand, there is no good reason to limit national security
concerns to risks aimed directly at the asylum country rather than, for example,
to include also a threat against a partner state or community of states that
indirectly affects the security of the host country.528 While “under international
law the state must prove a connection between the [threatening] activity and
the security of the [asylum] country,”529 the traditional notion that national
security can be implicated only by evidence of direct impact “limits too tightly

Immigration and Naturalization Service, Dec. No. 02-71311 (US CA9, Dec. 1, 2003) simply
adopted without any analysis a nearly unbounded test of “national security” posited by the
Board of Appeals, namely that there is a risk to national security where the individual
concerned “(1) endangers the lives, property or welfare of United States citizens; (2)
compromises the national defense of the United States; or (3) materially damages the
foreign relations or economic interests of the United States [emphasis added].”
526
There is therefore reason to be concerned by the reasoning of the European Court of
Human Rights that a state might be justified in summarily expelling refugees who failed
without “cogent reasons” to take advantage of “genuine and effective access to means of
legal entry, in particular border procedures”: ND and NT v. Spain, Dec. Nos. 8675/15 and
8697/15 (ECtHR, Feb. 13, 2020), at [209], [218]. Nor do arguments tantamount to violenti
non fit injuria (“the Court considers that it was in fact the applicants who placed
themselves in jeopardy by participating in the storming of the Melilla border fences”:
ibid. at [231]) resonate with the permissible grounds for exclusion from protection against
refoulement authorized by Art. 33(2) of the Convention. On the salience of the court’s
reasoning based on “large numbers and using force” see Chapter 4.1.5 at notes 636–649.
527
In overruling a decision of the Board of Immigration Appeals that no national security
threat had been shown in the case of an unauthorized entrant from Haiti, the Attorney
General took the unusual step of issuing a “binding determination,” specifically said to be
treated as a precedent in future cases, that national security would be compromised by the
release on bail of Haitian entrants because this “would tend to encourage further surges of
mass migrations from Haiti by sea, with attendant strains on national and homeland
security resources”: In re DJ, 2003 BIA Lexis 3 (US AG, Apr. 17, 2003). Incredibly, the
Attorney General explicitly advanced a deterrent rationale for his decision, asserting that
“surges in such illegal migration by sea injure national security by diverting valuable Coast
Guard and DOD resources from counter-terrorism and homeland security responsibil-
ities”: ibid.
528
Lauterpacht and Bethlehem argue that an interpretation of this kind would be “inconsist-
ent with the nature of [the] compromise [between state and individual interests], and with
the humanitarian and fundamental character of the prohibition of refoulement,” in
consequence of which the national security exemption set by Art. 33(2) “does not address
circumstances in which there is a possibility of danger to the security of other countries or
to the international community more generally”: Lauterpacht and Bethlehem, “Non-
refoulement,” at [165].
529
Suresh v. Canada, [2002] 1 SCR 3 (Can. SC, Jan. 11, 2002), at [88]. The general approach of
the Canadian Supreme Court was endorsed by the Supreme Court of New Zealand:
Attorney-General v. Zaoui, [2005] NZSC 38 (NZ SC, June 21, 2005), at [45].

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 410 4 ri g ht s o f re f u g e e s p hy s i c a l l y p r e s e n t

the discretion of the executive in deciding how the interests of the state,
including not merely military defense but democracy, the legal and constitu-
tional systems of the state, need to be protected.”530 As Zimmermann and
Wennholz have noted,

[I]f . . . a danger manifestly affects a collectivity of States, such as . . .

member states of the EU or of NATO, with a real threat being directed
against common institutions created to safeguard vital interests, it is only
logical to consider this danger as constituting a potential harm to the most
basic interests of every individual member State. In times of globalization,
growing interdependence, and striving for multilateral solutions for com-
mon security problems, it would appear too narrow to restrict dangers to
national security to imminent dangers to the territory, national institu-
tions, and population of a specific single country.531

A more difficult question arises when the threat to the asylum country’s
national security takes the form of retaliation by the agent of persecution. The
US Board of Immigration Appeals has emphatically asserted that refoulement
in order to protect national security is not lawful in such a circumstance:

The immigration judge did not find that the applicant himself would seek
to undermine the security of the United States. Instead, she found that the
decision of the United States to offer [asylum to] the applicant, a high
profile person involved in a violent political crisis . . . might involve the
United States in that crisis or cause this country to become the target of
violent conflict. If our country shelters him, foreign violent opponents of
his may well consider our territory an appropriate battleground.
We conclude that the immigration judge’s interpretation . . . is flawed.
The case law establishes that an alien would properly be considered a
danger to the security of the United States when the alien himself poses the
danger . . . We have found no authority to support the immigration judge’s
interpretation . . . that an alien would properly be considered a danger to
the security of the United States when the decision of the United States to
grant the alien asylum might encourage others to commit violence against
the United States in retaliation for that decision. The purpose of asylum is
to protect an individual who is in danger based on, among other things, his
political opinion. This purpose would be severely undermined if we denied
asylum because some third party who opposed the alien’s political opinion

530
Secretary of State for the Home Department v. Rehman, [2001] UKHL 47 (UK HL, Oct. 11,
2001), at [17], per Lord Slynn of Hadley. See generally Chapter 3.5.1 at note 673 ff.
531
Zimmermann and Wennholz, “Article 33, para. 2,” at 1416. In contrast, UNHCR appears
more tightly wedded to the traditional view, having observed that “Article 33(2) makes no
reference to the security of other countries. To justify refoulement under article 33(2), the
danger must therefore be a danger to the security of the country of refuge”: UNHCR,
“Advisory Opinion regarding the scope of the national security exception under Article
33(2) of the 1951 Convention,” Jan. 6, 2006, at 6.

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 4.1 r ight to enter and remain in an asylum state 411

contemplated violence against the United States (or the alien himself) in
retaliation for granting him the protective relief of asylum.532

While a highly principled position with some support in the drafting history of the
Convention,533 on balance this interpretation takes an overly narrow view of the
notion of the national security exception to the duty of non-refoulement. It is of
course literally true that the refugee is merely the instrumentality triggering the risk
to national security, rather than the immediate source of that risk.534 But unlike the
exclusion clauses of the Convention, Art. 33(2) is not predicated on any evidence of
blameworthiness; it exists rather to enable states to reconcile the duty to protect
refugees to their more general obligation to ensure the security of their country and
its citizens. As such, if the demanding standard of a true risk to national security is
met,535 it is legally irrelevant whether the refugee to be removed voluntarily
contributed to the risk or not. For purposes of Art. 33(2), the only question is
whether there genuinely is a real chance of a retaliation that poses a risk of
substantial harm to the host state’s most basic interests – such as an armed attack
on its territory or its citizens, or the destruction of its democratic institutions.536 If
these strict criteria are satisfied, the national security exception to the Refugee
Convention’s duty of non-refoulement may in principle be invoked, and the refugee
required to leave the host state if no less intrusive means of protecting the host
country exists.
Even where truly vital interests are at stake, a state seeking to rely on the national
security exception to the duty of non-refoulement must, of course, undertake a
careful assessment of the security threat actually posed by the presence of the
particular refugee whose refoulement is being contemplated.537 As the Supreme
532
In re Anwar Haddam, 2000 BIA Lexis 20 (US BIA, Dec. 1, 2000).
533
Concern about excluding a refugee whose presence might give rise to home state retaliation
was voiced by the Danish representative to the Conference of Plenipotentiaries (Statement of
Mr. Hoeg of Denmark, UN Doc. A/CONF.2/SR.16, July 11, 1951, at 10–11), leading the
British delegate to respond without explanation that such a circumstance was not contem-
plated by Art. 33(2): Statement of Mr. Hoare of the United Kingdom, ibid., at 13.
534
“The national security exception . . . cannot – even in extreme cases – be invoked in order
to avoid the risk of retaliation by those who would persecute a refugee . . . In this case it is
not, as required by the explicit wording of Art. 33, para. 2, the refugee who constitutes a
danger to the national security of the State of refuge, but rather his or her State of origin”:
Zimmermann and Wennholz, “Article 33, para. 2,” at 1414. The writers nonetheless
concede that general principles of necessity might in cases of grave and imminent peril
be invoked to allow the refoulement of a refugee: ibid. at 1415.
535
As Ben-Nun rightly observes, “[n]ational security was never meant to be used as a ‘basket
clause’ masking other purposes such as demographic or political considerations. ‘National
security’ must not be employed as a tool against perceived threats stemming from
ethnicity, skin colour, religion, or changes in the demographic composition of one’s
state”: Ben-Nun, “British-Jewish Roots,” at 113.
536
See also Chetail, International Migration Law, at 189.
537
In a cognate context – namely, in response to national security and public order arguments
made to avoid refugee responsibility sharing duties under EU law – the Court of Justice of the

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 412 4 r i gh t s of ref ug ees physic ally present

Court of Canada has insisted, it cannot be assumed that a person poses a risk to
national security based on the fact of group membership or other affiliation alone;
the risk must rather be proved on the basis of fair procedures.538 Because resort to
refoulement is a particularized and highly exceptional form of protection for states,
a restrictive approach is clearly called for, with the state asserting the danger posed
by the refugee logically expected to establish a case for the refugee to answer.539 As

European Union rightly insisted that “a danger to national security or public order can be
invoked by the authorities . . . only if there is consistent, objective and specific evidence that
provides grounds for suspecting that the applicant in question actually or potentially repre-
sents such a danger . . . and not until those authorities, in respect of each applicant . . . have
made an assessment of the facts within their knowledge with a view to determining whether, in
the light of an overall examination of all the circumstances of the individual case concerned,
such reasonable grounds exist [emphasis added]”: European Commission v. Republic of Poland,
Dec. Nos. C-715/17, C-718/17, and C-719/17 (CJEU, Apr. 2, 2020), at [159]. As such, Niger’s
summary expulsion of whole groups of Nigerian refugees fleeing Boko Haram – after Boko
Haram attacked Niger in retaliation for hosting the refugees (See text at note 66) – was not
lawful despite the reality of the threat to national security.
538
“[C]ontrary to the government’s submission, [we would] distinguish ‘danger to the security of
Canada’ from ‘danger to the public,’ although we recognize that the two phrases may overlap.
The latter phrase clearly is intended to address threats to individuals in Canada, but its
application is restricted by requiring that any individual who is declared to be a ‘danger to
the public’ have been convicted of a serious offence . . . The government’s suggested reading of
‘danger to the security of Canada’ effectively does an end-run around the requirements of
Article 33(2) of the Refugee Convention that no one may be refouled as a danger to the
community of the country unless he has first been convicted by a final judgment of a
particularly serious crime”: Suresh v. Canada, [2002] 1 SCR 3 (Can. SC, Jan. 11, 2002), at
[84]. Despite this guidance, the Canadian Federal Court of Appeal has effectively authorized the
refoulement on national security grounds of refugees stigmatized on the basis of no more than
their membership of subversive or terrorist groups: see Minister of Public Safety and Emergency
Preparedness v. Nawal Haj Khalil, [2014] FCA 213 (Can. FCA, Sept. 30, 2014); Behzad Najafi v.
Minister of Public Safety and Emergency Preparedness, [2014] FCA 262 (Can. FCA, Nov. 7,
2014). To avoid such errors, there is wisdom in the advice of the Supreme Court of Canada that
it will often make more sense to consider the permissibility of refoulement not on the basis of the
national security leg of Art. 33(2), but rather on the basis of the other branch of Art. 33(2), which
authorizes refoulement in the case of persons who are shown to pose a danger to the community
of their intended host state, but only after final conviction of a particularly serious crime.
539
In NSH v. Secretary of State for the Home Department, [1988] Imm AR 410 (Eng. CA, Mar. 23,
1988), the English Court of Appeal held that the grounds for determining an applicant to be a
risk to the national security of a country must in fact be reasonable before protection against
refoulement may validly be denied. While the courts cannot expect all evidence to be placed
before them, the assertion of risk must be “sufficiently particularized” to substantiate the
reasonableness of exclusion. In the view of the New Zealand Court of Appeal, “it is incumbent
upon the [state party] to provide as much information as is possible, without risking the
disclosure of the classified security information itself”: Attorney General v. Zaoui, [2005] 1
NZLR 690 (NZ CA, Sept. 30, 2004), at [72]; varied on other grounds in Attorney-General v.
Zaoui, [2005] NZSC 38 (NZ SC, June 21, 2005). In general terms, “[t]he relevant authorities
must specifically address the question of whether there is a future risk [to national security]; and
their conclusion on the matter must be supported by evidence”: Lauterpacht and Bethlehem,
“Non-refoulement,” at [168].

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 4.1 right to enter a nd remain in an asylum state 413

recently observed by the Kenyan High Court in rejecting an effort by that country’s
government to expel all Somali refugees on national security grounds,
The application of Article 33(2) requires an individualized determination by
the country in which the refugee is that he or she comes within one of the
two categories provided for under Article 33(2) of the 1951 Convention.
Thus, this rules out group or generalized application or collective condem-
nation. Unfortunately, the averment by the Government that the two
exceptions . . . are applicable [is] not based on individual consideration or
determination to each affected refugee but [is] dangerously generalized in a
manner that is akin to collective punishment.540

4.1.4.2 Danger to the Asylum State Community

In addition to cases where there is a demonstrable risk to national security,
refoulement is also allowed in the case of a refugee who has been “convicted by
a final judgment of a particularly serious crime,” and who is determined to
constitute “a danger to the community” of the asylum state. In contrast to Art.
1(F)(b) of the Refugee Convention, the purpose of which is to ensure the
integrity of the refugee regime by denying extraditable criminals the ability
to avoid prosecution and punishment,541 the criminality exclusion set by Art.
33(2) exists to enable host states to protect the safety of their own communities
from criminal refugees who are shown to be dangerous.542 This right to engage
in the refoulement of dangerous criminals is, however, carefully constrained.
First, the gravity of criminality which justifies refoulement under Art. 33(2) – “a
particularly serious crime” – is higher than that which justifies the exclusion of
fugitives from justice under the “serious” non-political crime rule set by Art. 1(F)(b)
of the Convention.543 Only an extraditable crime is appropriately adjudged

540
Kenya National Commission on Human Rights v. Attorney General, Constitutional
Petition No. 227 of 2016 (Ken. HC, Feb. 9, 2017), at 19.
541
See text at notes 509–510.
542
See J. Hathaway and C. Harvey, “Framing Refugee Protection in the New World
Disorder,” (2001) 34(2) Cornell International Law Journal 257. In describing the different
functions of Art. 1(F)(b) and Art. 33(2) of the Refugee Convention, Lord Mustill observed
that the argument that Art. 1(F)(b) should be used to exclude dangerous refugees
“overlooks Article 33(2) of the 1951 Convention . . . The state of refuge has sufficient
means to protect itself against harbouring dangerous criminals without forcing on an
offence, which either is or is not a political crime when and where committed, a different
character according to the opinions of those in the receiving state about whether the
refugee is an undesirable alien”: T v. Secretary of State for the Home Department, [1996] 2
All ER 865 (UK HL, May 22, 1996), per Lord Mustill. See also Pushpanathan v. Minister of
Citizenship and Immigration, [1998] 1 SCR 982 (Can. SC, June 4, 1998), at [73].
543
Refugee Convention, at Art. 1(F)(b). See generally A. Grahl-Madsen, The Status of
Refugees in International Law (vol. I, 1966) (Grahl-Madsen, Status of Refugees I), at
289–304; Hathaway and Foster, Refugee Status, at 537–562; and Goodwin-Gill and
McAdam, Refugee in International Law, at 171–184.

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“serious”;544 examples commonly given include acts that involve violence against
persons, such as homicide, rape, child molesting, wounding, arson, drugs traffick-
ing, and armed robbery.545 The gravity of harm necessary to justify the refoulement
of a person who qualifies for refugee status – expressly framed as a “particularly”
serious crime – is clearly higher still,546 and has been interpreted to require that
even when the refugee has committed a serious crime, refoulement is only war-
ranted when account has been taken of all mitigating and other circumstances
surrounding commission of the offense.547
For example, the Australian Full Federal Court was called upon to consider
whether Art. 33(2) was appropriately applied in the case of a person who had been
detained by Australia for more than two years before his Convention refugee
status was confirmed. By reason of his protracted detention, he began to experi-
ence severe paranoid delusions. After his release, and while in a delusional state,
he went to an acquaintance’s home armed with a knife and threatened to kill her.
He subsequently made further threats against the woman’s life, ultimately result-
ing in his arrest on one count of aggravated burglary and five counts of threats to
kill. He was convicted of those charges and sentenced to a term of three-and-a-half
years’ imprisonment. The Court reviewing the decision that refoulement was
justified held that the offenses ought not to have been deemed “particularly
serious” without consideration of “the fact that it was the appellant’s psycho-
logical illness that led to the commission of the offenses. It should have taken
into account that the appellant’s conduct was directed to a person whom he
believed, as a consequence of his psychological illness, had been conspiring to
cause him harm. The Tribunal should have considered the extent to which
the psychological illness reduced the moral culpability of the appellant in
much the same way as his psychological illness was taken into account in
sentencing the appellant for having committed those offenses.” As a general
principle, the Court concluded:
On its proper construction, Article 33(2) does not contemplate that a
crime will be characterized as particularly serious or not particularly
serious merely by reference to the nature of the crime that has been
committed, although this may suffice in some cases. The reason is that
544
To constitute a “serious crime” for purposes of Art. 1(F)(b), the facts must show that the
act was criminal both where committed and in the asylum state and that it is an extradit-
able crime as defined by reference to international minimum standards: Hathaway and
Foster, Refugee Status, at 549–551.
545
Grahl-Madsen, Status of Refugees I, at 297; Goodwin-Gill and McAdam, Refugee in
International Law, at 176–177.
546
The conclusion of a US appellate court that “the offense need not necessarily involve violence
in order to qualify” (Lizbeth Patricia Valerio Ramirez v. Attorney General, 882 F. 3d 289 (US
CA1, Feb. 18, 2018) thus adopts an overly broad reading of a “particularly serious crime.”
547
Betkoshabeh v. Minister for Immigration and Multicultural Affairs, (1998) 157 ALR 95 (Aus.
FC, July 29, 1998), at 102, reversed on grounds of mootness at (1999) 55 ALD 609 (Aus. FFC,
July 20, 1999).

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 4.1 right to enter a nd remain in an asylum state 415

there are very many crimes where it is just not possible to determine
whether they are particularly serious without regard to the circumstances
surrounding their commission.548

Much the same approach has been adopted in the United Kingdom, where
the Asylum and Immigration Tribunal has insisted that “in applying Art. 33(2)
to a specific individual, consideration must be taken of the individual circum-
stances of the commission of the offense.”549 Thus, “Art. 33(2) can only be
applied in a fact-sensitive way taking account of all the circumstances of the
offence including its nature, gravity and consequences and of the offender,
including any aggravating or mitigating factors.”550
Second, while refugee status is to be withheld from persons reasonably suspected
of justiciable criminal conduct under Art. 1(F)(b), the refoulement of refugees
under Art. 33(2) is permissible only when there has actually been conviction by a
final judgment. Appeal rights should therefore have expired or been exhausted,551

548
Ibid. A finding that remediable psychological illness was at the root of criminal acts may also
lead to a finding that the additional requirement to show a “danger to the community” (see text
at note 553 ff.) is not satisfied. In the case of a Zimbabwean refugee whose violent tendencies
were attributable to schizophrenia that “was fully under control with medication” and whose
evidence made it clear that “he was motivated to ensure he continued to receive that medica-
tion,” it was determined that “he does not represent a danger to the community in the United
Kingdom for the purpose of . . . Article 33(2) of the Refugee Convention”: Secretary of State for
the Home Department v. MM (Zimbabwe), [2017] EWCA Civ 797 (Eng. CA, June 22, 2017),
at [15].
549
IH v. Secretary of State for the Home Department, [2009] UKAIT 00012 (UK AIT, Mar. 9,
2009), at [73].
550
Ibid. at [76]. In contrast to this thoughtful analysis, the US Court of Appeals for the 9th Circuit
upheld the view that the conviction for drunk driving of a Mexican transgender woman –
whose alcoholism stemmed from years of relentless beatings, sexual assaults, and rape – was a
“particularly serious crime”: Edin Carey Avendano Hernandez v. Attorney General, 800 F. 3d
1072 (US CA9, Sept. 3, 2015). In truth, it is highly doubtful that this offense (which resulted in
only a term of incarceration of 364 days) was appropriately defined as even a “serious” crime,
much less a “particularly serious” crime. More shockingly, the US Board of Immigration
Appeals was “not persuaded that any inconsistency exist[ed]” between US and international
law on permissible refoulement of serious criminals in finding that the Art. 33(2) exception to
the duty of non-refoulement applied to a crime committed under duress (acceding to extortion
demands from the Colombian FARC, the proceeds of which funded “terrorism,” after having
been attacked by them): Matter of MHZ, 26 I&N Dec. 757 (US BIA, June 9, 2016). Even if this
action could somehow be treated as criminal – a doubtful proposition given clear evidence of
duress – the failure even to consider the truly extreme circumstances under which funds were
provided to FARC is inconsistent with the notion of a “particularly serious” crime, the standard
for refoulement under Art. 33(2). As the English Court of Appeal has correctly observed, simple
deference to asylum standards of “particularly serious criminality” is not warranted, as “the
expression ‘particularly serious crime,’ in an international treaty . . . has autonomous meaning”:
EN (Serbia) and KC (South Africa) v. Secretary of State for the Home Department, [2009] EWCA
Civ 630 (Eng. CA, June 26, 2009), at [40].
551
Statement of Mr. Hoare of the United Kingdom, UN Doc. A/CONF.2/SR.16, July 11, 1951,
at 14. See also Lauterpacht and Bethlehem, “Non-refoulement,” at [188]: “‘Final judgment’

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 416 4 r i g ht s o f re f u g e e s p hy s i c a l l y p r e s e n t

limiting the risk of refoulement strictly to those whose criminality has been
definitively established in accordance with accepted, general legal norms. As
such, if authorities are able to “show that a person who has not been convicted of
a particularly serious crime is nonetheless a danger to the community [they] cannot
rely on Article 33(2).”552
Third and most important, the nature of the conviction and other circum-
stances must be found to justify the conclusion that the refugee in fact constitutes
a danger to the community553 in which protection is sought.554 The simple fact
of conviction does not suffice; rather, as the English Court of Appeal made clear,

[I]t is clear that Article 33(2) imposes two requirements on a state wishing
to refoule a refugee . . . his conviction by a final judgment of a particularly
serious crime and his constituting a danger to the community.555

must be construed as meaning a judgment from which there remains no possibility of

appeal. It goes without saying that the procedure leading to the conviction must have
complied with minimum international standards.”
552
EN (Serbia) and KC (South Africa) v. Secretary of State for the Home Department, [2009]
EWCA Civ 630 (Eng. CA, June 26, 2009), at [39]. If the crime alleged is serious and the
individual concerned has not expiated that criminality, exclusion under Art. 1(F) would
nonetheless be available: see text at note 478 ff.
553
See e.g. Ragupathy v. Canada, [2006] FCJ 654 (Can. FCA, Apr. 26, 2006), at [13]. “[I]t is evident
that [the word ‘community’] is intended as a reference to the safety and well-being of the
population in general, in contrast to the national security exception which is focused on the
larger interests of the State”: Lauterpacht and Bethlehem, “Non-refoulement,” at [192].
554
For example, a proposal to authorize the refoulement of habitual offenders convicted of a
series of less serious crimes was not accepted: Statements of Mr. Theodoli of Italy and Mr.
Hoare of the United Kingdom, UN Doc. A/CONF.2/SR.16, July 11, 1951, at 16–17.
555
EN (Serbia) and KC (South Africa) v. Secretary of State for the Home Department, [2009] EWCA
Civ 630 (Eng. CA, June 26, 2009), at [39]. The Court nonetheless approved of a rebuttable
presumption of danger following from a relevant conviction, determining that “once the State
has established that a person has been convicted of what is on the face of it a particularly serious
crime, it will be for [the refugee] to show either that it was not in fact particularly serious,
because of mitigating factors associated with its commission, or that because there is no danger
of its repetition he does not constitute a danger to the community”: ibid. at [66]. See also
Jeevakaran Ramanthan v. Minister of Immigration, Refugees and Citizenship and Minister of
Public Safety and Emergency Preparedness, [2017] FC 834 (Can. FC, Sept. 22, 2017), at [41],
finding that “conviction of a serious criminal offence is not, alone, sufficient to conclude that the
individual poses a danger to the public.” In contrast, the practice of the United States of
automatically equating conviction for a given category of crime with a finding of “dangerous-
ness” (approved in Edson Flores v. Attorney General, 779 F. 3d 159 (US CA2, Feb. 26, 2015), at
[13]; and in Lizbeth Patricia Valerio Ramirez v. Attorney General, 882 F. 3d 289 (US CA1, Feb.
15, 2018)) is not sound, as it elides two distinct inquiries. See e.g. Jose Hernandez Nolasco v.
Attorney General, 807 F. 3d 95 (US CA4, Dec. 4, 2015), finding that “an alien who has been
convicted of a ‘particularly serious crime’ and, thus, ‘is a danger to the community’ is not eligible
for withholding of removal” and upholding domestic US law that makes conviction of an
“aggravated felony” an automatic basis for the application of Art. 33(2). The “aggravated
felony” category in the US can be astoundingly inclusive, resulting, for example, in a finding
of removability against a Somali refugee who had fraudulently used food stamp benefits: Jeylani
Mowlana v. Attorney General, 2015 US App. Lexis 17182 (US CA8, Sept. 30, 2015).

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 4.1 ri g ht t o e nt e r a n d r e m a i n i n a n a s y l u m s t a t e 417

The focus of analysis must always be on whether the refugee “is a possible re-
offender whose presence . . . creates an unacceptable risk to the public.”556 It
thus follows, as observed by the Kenyan High Court, that “the possibilities of
rehabilitation and reintegration within society”557 must be considered, as they
may negate the required forward-looking assessment of danger to the host
community.558 Similarly, where there is evidence that the crime committed
was strictly situation-specific and that comparable circumstances do not exist
in the host country – for example, the use of a weapon to escape unlawful
detention or other persecution – refoulement ought not to be authorized.559
Because danger follows from the refugee’s criminal character, it does not
matter whether the crime was committed in the state of origin, an intermediate
state, or the asylum state.560 Nor is it relevant whether the claimant has or has
not served a penal sentence or otherwise been punished.561 On the other hand,
refoulement is appropriately authorized only as a last resort562 where there is no
alternative mechanism to protect the community in the country of asylum

556
Jeevakaran Ramanthan v. Minister of Immigration, Refugees and Citizenship and Minister of
Public Safety and Emergency Preparedness, [2017] FC 834 (Can. FC, Sept. 22, 2017), at [40].
557
Kenya National Commission on Human Rights v. Attorney General, Constitutional
Petition No. 227 of 2016 (Ken. HC, Feb. 9, 2017), at [19].
558
Accord Zimmermann and Wennholz, “Article 33, para. 2,” at 1421.
559
The English Court of Appeal determined that once evidence of conviction of a particularly
serious crime has been presented, the refugee can nonetheless avoid refoulement by
showing inter alia “that because there is no danger of its repetition, he does not constitute
a danger to the community”: EN (Serbia) and KC (South Africa) v. Secretary of State for the
Home Department, [2009] EWCA Civ 630 (Eng. CA, June 26, 2009), at [66].
560
“Moreover, the possibility of a refugee committing a crime in a country other than his country
of origin or his country of asylum could not be ignored. No matter where a crime was
committed, it reflected upon the personality of the guilty individual, and the perpetrator was
always a criminal . . . The President pointed out that paragraph 2 [of Article 33] afforded a
safeguard for States, by means of which they could rid themselves of common criminals or
persons who had been convicted of particularly serious crimes in other countries”: Statements
of Mr. Rochefort of France and Mr. Larsen of Denmark, UN Doc. A/CONF.2/SR.35, July 25,
1951, at 24. But see Lauterpacht and Bethlehem, “Non-refoulement,” at [149]. Because the
authors do not recognize Art. 1(F)(b) as restricted to justiciable criminality, they argue that the
need to avoid overlap between Arts. 1(F)(b) and 33(2) compels the conclusion that the latter
speaks only to crimes committed after admission to a state party as a refugee.
561
Accord Zimmermann and Wennholz, “Article 33, para. 2,” at 1421.
562
Thus, “the danger involved is not a present or future danger that a person may commit a crime
as that can be dealt with by the ordinary criminal law”: Attorney General v. Zaoui, [2005] 1
NZLR 690 (NZ CA, Sept. 30, 2004), at [167]; varied on other grounds in Attorney-General v.
Zaoui, [2005] NZSC 38 (NZ SC, June 21, 2005). This is in line with the view of the drafters of the
Refugee Convention. For example, “the Swiss Government wished to reserve the right in quite
exceptional circumstances to expel an undesirable alien, even if he was unable to proceed to a
country other than the one from which he had fled, since the Federal Government might easily
find itself so placed that there was no other means of getting rid of an alien who had seriously
compromised himself”: Statement of Mr. Schurch of Switzerland, UN Doc. E/AC.32/SR.40,
Aug. 22, 1950, at 32.

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 418 4 r i gh t s of ref ug ees physic ally present

from an unacceptably high risk of harm.563 The practice of some states to give
dangerous refugees the option of indefinite incarceration in the asylum state as
an alternative to refoulement is therefore one mechanism to be considered,
since it protects the host community, yet averts the risk of being persecuted.564
In the end, however, the Refugee Convention accepts that in extreme and
genuinely exceptional cases, the usual considerations of humanity must yield
to the critical security interests of the receiving state.565 As observed in the Full
Federal Court of Australia, Article 33(2)
describes the serious conditions that justify the return of a refugee to a
place where he or she may face persecution. Article 33(2) and the circum-
stances within it reflect the balance contained within the Refugee
Convention between protection of those who need it, and the legitimate
entitlement of Contracting States not to be required to give protection to
those who pose a danger to the host state and its people.566

4.1.4.3 No Balancing Requirement

Because Art. 33(2) allows states to contemplate refoulement in only clear and
extreme cases,567 there is no additional proportionality requirement to be met: by
563
HT v. Land Baden-Württemberg, Dec. No. C-373/13 (CJEU, June 24, 2015), at [71].
564
The drafters of the Convention, however, assumed this option to be no better than refoulement.
“To condemn such persons to lifelong imprisonment, even if that were a practicable course,
would be no better solution”: Statement of Mr. Hoare of the United Kingdom, UN Doc. A/
CONF.2/SR.16, July 11, 1951, at 8. This option has moreover been opposed by Zimmermann
and Wennholz, who observe that “indefinite detention . . . is a means not provided for in the
1951 Convention. As such a measure would severely affect personal liberty . . . it appears hardly
conceivable to apply it as a ‘minus’ to refoulement . . . Establishing it as a ‘voluntary’ alternative
option to permitted refoulement . . . would hardly be a solution . . . since justification of an
encroachment upon personal liberty by consent presupposes a decision based on free will”:
Zimmermann and Wennholz, “Article 33, para. 2,” at 1422. While it is of course true that opting
for detention as an alternative to refoulement (for the duration of risk in the country of origin,
unless the refugee subsequently opts instead for refoulement) is far from ideal, the net result of
the Zimmermann and Wennholz critique seems to be that the asylum state would be effectively
left with no choice under the Refugee Convention but to proceed to refoulement (at least, unless
some other state proves willing to receive the criminal refugee). From a human rights optic this
seems a worse result than offering even a less-than-truly-voluntary option of detention in the
asylum country. Any ongoing detention would, of course, have to meet the requirements of
applicable international human rights law, including in particular the prohibition of arbitrary
detention under Art. 9 and the duty to treat persons deprived of their liberty with humanity and
dignity under Art. 10 of the Civil and Political Covenant: see Chapter 4.2.4.
565
“A State would always be in a position to protect itself against refugees who constituted a
danger to national security or public order”: Statement of Msgr. Comte of the Holy See,
UN Doc. E/CONF.2/SR.16, July 11, 1951, at 5.
566
NBMZ v. Minister for Immigration and Border Protection, [2014] FCAFC 38 (Aus. FFC,
Apr. 9, 2014), at [21], per Allsop C.J. and Katzmann J. concurring.
567
“The Chairman realized that the presence of particularly intractable refugees might cause
certain difficulties in certain reception countries. Nevertheless, it was for the governments

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 4.1 ri g h t t o en t er an d r emai n i n an asylu m state 419

definition, no purely individuated risk of persecution can offset a real threat to

such critical interests of the receiving state. So long as national security or danger
arising from particularly serious criminality is conceived in line with the admon-
ition of the drafters to interpret those notions restrictively “so as not to prejudice
the efficiency of the article as a whole,”568 a clear risk to such vital collective
interests defeats the refugee’s right to invoke the duty of non-refoulement.
Most writers have taken a contrary position,569 relying largely on a single
comment of the British co-sponsor of the particularized refoulement provi-
sion.570 Yet the British reference to the importance of letting states weigh
relative risks was actually an answer to a proposal to restrict states’ margin of
appreciation,571 not an argument for a super-added proportionality test. Indeed,
the British representative associated himself with his French co-sponsor’s
explanation of the rationale for the particularized refoulement clause:

The French and United Kingdom delegations had submitted their amend-
ment in order to make it possible for states to punish activities . . . directed
against national security or constituting a danger to the community . . . The
right of asylum rested on moral and humanitarian considerations which were
freely recognised by receiving countries, but it had certain essential limita-
tions. A country could not contract an unconditional obligation towards

of those countries to find the means of making reservations to meet special cases, while
accepting the principle, which applied to all civilized nations, of not expelling refugees to
territories where they would meet certain death”: Statement of the Chairman, Mr. Chance
of Canada, UN Doc. E/AC.32/SR.20, Feb. 1, 1950, at 15.
568
Statement of Mr. Hoare of the United Kingdom, UN Doc. A/CONF.2/SR.16, July 11, 1951,
at 8.
569
See Robinson, History, at 164; Weis, Travaux, at 342; UNHCR, “Advisory Opinion regarding
the scope of the national security exception under Article 33(2) of the 1951 Convention,” Jan.
6, 2006, at 6–8; Zimmermann and Wennholz, “Article 33, para. 2,” at 1419–1420.
570
“It must be left to States to decide whether the danger entailed to refugees by expulsion
outweighed the menace to public security that would arise if they were permitted to stay”:
Statement of Mr. Hoare of the United Kingdom, UN Doc. A/CONF.2/SR.16, July 11, 1951, at
8. Rather than invoking this comment, Zimmermann and Wennholz ground their plea for
proportionality in part on the fact that other human rights duties may preclude removal:
Zimmermann and Wennholz, “Article 33, para. 2,” at 1419–1420. In the (more limited)
circumstances in which a countervailing human rights duty (e.g. the prohibition of return to
torture under Art. 3 of the Torture Convention) applies, a state party must of course comply
with that additional duty notwithstanding whatever rights it has under Art. 33(2) of the
Refugee Convention. It is thus not accurate to suggest that the approach advanced here “leaves
no room for taking into account the refugee’s rights . . . [and] is in any case at odds with basic
principles of human rights protection”: ibid. at 1420. But the existence of these other
obligations is not the basis for asserting that “basic principles of human rights protection”
(ibid.) justify any such additional test being deemed part of Art. 33(2).
571
“What was meant for example by the words ‘reasonable grounds’? He considered that the
wording: ‘may not, however, be claimed by a refugee who constitutes a danger to the
security of the country’ would be preferable [emphasis in original]”: Statement of Msgr.
Comte of the Holy See, ibid. at 7–8.

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 420 4 righ t s of r ef ug ee s ph y sica lly p r es en t

persons over whom it was difficult to exercise any control, and into the ranks
of whom undesirable elements might well infiltrate. The problem was a moral
and psychological one, and in order to solve it, it would be necessary to take
into account the possible reactions of public opinion.572

This conviction that the establishment and maintenance of a relatively open

refugee protection system requires a strong safeguard of the basic security
interests of receiving states was precisely the reason that the Conference of
Plenipotentiaries rejected the Ad Hoc Committee’s unconditional insistence
on strict observance of the duty of non-refoulement.573
Appearances notwithstanding, insistence that risks to national security or
dangers to the host community be “balanced” against the consequences of
returning a refugee has in any event actually worked against the interests of
many refugees concerned. This is because, in practice, the suggestion that there
are some individuated forms of harm that could be more compelling than national
security or danger to the community of reception has trivialized the significance of
the latter two concepts and justified an unacceptably broad reading of the scope of
Art. 33(2). In holding a “balancing test” to be mandated by Art. 33(2), the English
Court of Appeal, for example, authorized the government to construe relatively
minor concerns as matters of national security or communal danger:

[T]he Secretary of State argues that on the plain wording of the Article a
refugee may be expelled or returned even to a country where his life or
freedom would be threatened, and that no balancing exercise is necessary;
expulsion or return is permitted even where the threat to life or freedom is
much more serious than the danger to the security of the country . . .
Despite the literal meaning of Article 33, it would seem to me quite
wrong that some trivial danger to national security should allow expulsion
or return in a case where there was a present threat to the life of the refugee
if that took place [emphasis added].574

572
Statement of Mr. Rochefort of France, ibid. at 7.
573
“The President thought that the Ad Hoc Committee, in drafting article [33], had, perhaps,
established a standard which could not be accepted. That Committee, as could be seen
from its report on its second session, had felt that the principle inherent in article [33] was
fundamental, and that it could not consider any exceptions to the article”: Statement of the
President, Mr. Larsen of Denmark, ibid. at 13.
574
Secretary of State for the Home Department, ex parte Chahal, [1994] Imm AR 107 (Eng.
CA, Oct. 22, 1993), per Straughton L.J., violation found in Chahal v. United Kingdom,
(1996) 23 EHRR 413 (ECtHR, Nov. 15, 1996). The decision of the Court of Appeal
unfortunately rejected the earlier reasoning of the same court in NSH v. Secretary of
State for the Home Department, [1988] Imm AR 410 (Eng. CA, Mar. 23, 1988): “It may be
that in many cases, particularly where a case is near the borderline, the Secretary of State
will weigh in the balance all the compassionate circumstances, including the fact that the
person is a refugee. But where national security is concerned I do not see that there is any
legal requirement to take this course. Indeed Article 33(2) of the Convention provides that

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 4.1 right to enter and remain in an asylum state 421

The very notion that there could be any such thing as a “trivial danger to
national security” to be balanced against purely individuated interests is
disturbing.575 This decision shows how assertion of the importance of a
“balancing test” inadvertently legitimates an unwarranted extension of the
scope of the security-based exception to the duty of non-refoulement.576 If, in
contrast, national security and danger to the community are more carefully
constrained as described here, it is readily apparent that they would always
trump purely individuated risks, in consequence of which no super-added
balancing test is required or appropriate.
Jurisprudence on cognate obligations affirms the view that Art. 33(2) is to be
interpreted without importation of a “balancing” test. The European Court of
Human Rights, for example, rejected the UK’s plea to balance in the opposite
direction – specifically, that the duty of non-return under Art. 3 of the
European Convention on Human Rights should be balanced against the risk
to its security interests – pointing out the intellectual incoherence of balancing
metaphorical “apples and oranges”:

The concepts of “risk” and “dangerousness” in this context do not lend

themselves to a balancing test because they are notions that can only be
assessed independently of each other. Either the evidence adduced before
the Court reveals that there is a substantial risk if the person is sent back or
it does not. The prospect that he may pose a serious threat to the commu-
nity if not returned does not reduce in any way the degree of risk of ill
treatment that the person may be subject to on return.577

In the specific context of the Refugee Convention, virtually all leading courts
have similarly rejected the argument that the right of states to exclude refugees
under Art. 1(F)(b) is subject to a duty to “balance” the degree of a refugee’s

a refugee cannot claim the benefit of Article 33(1) where there are reasonable grounds for
regarding him ‘as a danger to the security of the country in which he is.’”
575
Zimmermann and Wennholz concur, noting that “anything such as a minor or trivial
danger to national security is hardly imaginable”: Zimmermann and Wennholz, “Article
33, para. 2,” at 1417.
576
Indeed, in arguing for a proportionality test, Zimmermann and Wennholz fall into
precisely this trap, arguing that otherwise the presence of a person who had only engaged
in “fundraising” for terrorist purposes might be found to “constitute a danger to national
security,” leading to his return to the risk of being persecuted: ibid. at 1420. It is, however,
difficult to imagine how the presence of such a person could give rise to an objectively
reasonable, real possibility of directly or indirectly inflicted substantial harm to the host
state’s most basic interests, including the risk of an armed attack on its territory or its
citizens, or the destruction of its democratic institutions. To the contrary, a positive
contribution to security might follow from the refugee’s removal from the sphere in
which he was able to raise funds to support terrorism (and if he were to engage in such
activities in the asylum state, he could readily be prosecuted and imprisoned if found
guilty).
577
Saadi v. Italy, (2009) 49 EHRR 30 (ECtHR [GC], Feb. 28, 2008), at [139].

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 422 4 ri g ht s of re f u g e es p hy s i c a l l y p r e s e n t

criminality against the gravity of the persecution feared.578 Drawing on early

Canadian case law that simply rejected any duty to balance579 and comments in
the House of Lords suggesting that the character of a crime “cannot depend on
the consequences which the offender may afterwards suffer if he is
returned,”580 the New Zealand Court of Appeal determined that the notion
of a duty to balance criminality with the degree of persecution anticipated is
both illogical and unfair:
It is not easy to grasp the concept that the same offending may or may not
be serious depending upon the level or degree of persecution expected to
be suffered in the homeland. Acceptance of the concept would mean that
in some circumstances Applicant A would be excluded from the
Convention provisions . . . but Applicant B, who had committed an iden-
tical crime and bears the same culpability in the eyes of the law, would
not . . .
Whether a crime is to be categorised as serious is to be determined by
reference to the nature and details of the particular offending, and its likely
penal consequences. It does not depend upon, nor does it involve, a
comparative assessment of its own gravity with the gravity of the perceived
persecution if return to the homeland eventuates.581

Similarly, the US Supreme Court determined that “[a]s a matter of plain

language, it is not obvious that an already-completed crime is somehow
rendered less serious by considering the further circumstance that the alien
may be subject to persecution if returned to his home country.”582 The Full
Federal Court of Australia chimed in, finding that “[t]here is no textual or
contextual basis for reading into Art. 1(F)(b) an additional requirement of a
balancing test nor would such a requirement be justified on the basis that it is
giving effect to the purpose or object of Art. 1(F)(b).”583 And most recently the
Court of Justice of the European Union agreed, finding that “[s]ince the
competent authority has already, in its assessment of the seriousness of the
acts committed by the person concerned and of that person’s individual
responsibility, taken into account all the circumstances surrounding those
578
See generally Hathaway and Foster, Refugee Status, at 562–567.
579
Malouf v. Canada, [1995] 1 FC 537 (Can. FCTD, Oct. 31, 1994); affirmed in Xie v. Canada,
[2005] 1 FCR 304 (Can. FCA, June 30, 2004); affirmed in obiter dicta in Pushpanathan v.
Minister of Citizenship and Immigration, [1998] 1 SCR 982 (Can. SC, June 4, 1998).
580
T v. Immigration Officer, [1996] AC 742 (UK HL, May 22, 1996), at 769, per Lord Mustill.
581
S v. Refugee Status Appeals Authority, [1998] 2 NZLR 291 (NZ CA, Apr. 2, 1998), at 296,
300. The New Zealand Supreme Court has more recently affirmed this view, finding that
“the gravity of the offending [is not] to be balanced against the risk of persecution if the
claimant is returned home”: Attorney General v. Tamil X, [2011] 1 NZLR 721 (NZ SC,
Aug. 27, 2010), at [87].
582
INS v. Aguirre Aguirre, (1999) 526 US 415 (US SC, May 3, 1999), at 426.
583
NABD of 2001 v. Minister for Immigration and Multicultural Affairs, [2002] FCAFC 326
(Aus. FFC, Oct. 31, 2002), at [41].

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 4.1 r ight to enter and remain in an asylum state 423

acts and the situation of the person, it cannot . . . be required . . . to undertake

an assessment of proportionality, implying as it does a fresh assessment of the
level of seriousness of the acts committed.”584
The Supreme Court of New Zealand has led the way in applying much the
same reasoning to reject an argument for a balancing requirement to be
required under Art. 33(2). The Court began by observing the same logical
challenge identified in responding to arguments for “balancing” in other
contexts:
The decision-maker would have to measure against one another two
matters which are very difficult to relate: the level of threat to the life or
liberty of an individual, on the one side, and, on the other, the level of
reasonably perceived danger to the security of the State. While the law may
sometimes appear to require such weighing, such an interpretation is to be
avoided unless it is plainly called for.585

After a detailed review of plain meaning, context, state practice, relevant rules
of international law, the drafting history, and scholarly commentaries, the
Supreme Court concluded succinctly – and in line with the views taken in
relation to similar arguments in cognate contexts –
that the judgment or assessment to be made under article 33.2 is to be
made in its own terms, by reference to danger to the security, in this case,
of New Zealand, and without any balancing or weighing or proportional
reference to the matter dealt with in article 33.1, the threat, were [the
refugee] to be expelled or returned, to his life or freedom on the proscribed
grounds . . .586

4.1.5 Qualified Duty in the Case of Mass Influx?

Every few years, an asylum state closes its borders to refugees on the grounds
that it is faced with a “mass influx”587 with which it cannot cope. Turkey closed
584
B and D v. Germany, Dec. Nos. C-57/09 and C-101/09 (CJEU, Nov. 9, 2010), at
[108]–[109].
585
Attorney-General v. Zaoui, [2005] NZSC 38 (NZ SC, June 21, 2005), at [27].
586
Ibid. at [42].
587
“[M]ass influx is a phenomenon that has not been defined, but . . . for the purposes of this
Conclusion, mass influx situations may, inter alia, have some or all of the following
characteristics: (i) considerable numbers of people arriving over an international border;
(ii) a rapid rate of arrival; (iii) inadequate absorption or response capacity in host States,
particularly during the emergency; (iv) individual asylum procedures, where they exist,
which are unable to deal with the assessment of such large numbers”: UNHCR Executive
Committee Conclusion No. 100, “Conclusion on International Cooperation and Burden
and Responsibility Sharing in Mass Influx Situations” (2004), at [(a)]. This is actually quite
a fungible standard since “[t]here is neither a minimum number, nor speed of arrival, for a
‘mass influx’”: A. Edwards, “Temporary Protection, Derogation and the 1951 Refugee

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 424 4 ri g h t s of r e f u g e es ph y s i c a l l y p r e s e nt

its border to Kurdish refugees from Iraq in 1991;588 first Zaïre, and then
Tanzania, closed their borders in 1994–1995 to refugees in flight from Hutu–
Tutsi conflict;589 Macedonia closed its border to refugees attempting to flee
Kosovo in 1999;590 Pakistan closed its borders to Afghan refugees in 2000;591
Kenya closed its border to refugees fleeing war in Somalia in 2007;592 despite
admitting hundreds of thousands of refugees from Syria, Jordan closed its
border to Palestinians fleeing Syria in 2012;593 and Croatia, Hungary,
Macedonia, Serbia, and Slovenia closed their borders to Syrian and other
refugees in 2016.594 This pattern suggests that states believe that they are
entitled to take what is clearly a draconian measure in order to safeguard
their national interests. Yet in truth, such generalized border closures are
irreconcilable to the two bases for permissible refoulement set by Art.
33(2),595 each of which requires an individuated assessment of risk – a logistical
impossibility for a state confronted with truly massive numbers of refugees. As
a report prepared for the UNHCR observes, “[t]he obligation to offer asylum
may . . . directly conflict with a state’s claim to sovereignty, especially if the
claim is made that a mass influx will threaten the security (even the very
survival) of the nation-state.”596
One answer is that border closures in the face of a mass influx are simply
illegal:597 Art. 33(2) provides two exceptions to a fundamental norm of inter-
national refugee law and must therefore be understood to speak exhaustively to
the scope of lawful refoulement. This is essentially the position of the UNHCR,
which invokes Executive Committee Conclusion No. 22 as authority for the
view that even in situations of mass influx, “the fundamental principle of non-
refoulement – including non-rejection at the frontier – must be scrupulously
observed.”598 Conclusion No. 22 nonetheless seeks to soften the blow by
offering states faced with a mass influx the authority to suspend some
Convention rights. Specifically, it purports to bless an indefinite delay of the
regularization of status599 and, therefore, access to the rights that accrue upon

Convention,” (2012) 13(2) Melbourne Journal of International Law 595 (Edwards,

“Temporary Protection”), at 603.
588 589 590
See text at note 10. See text at note 11. See text at note 12.
591 592 593
See text at note 13. See text at note 14. See text at note 16.
594
See text at note 21.
595
See text at note 511 ff. (regarding danger to national security) and at note 541 ff.
(regarding danger to the security of the community of the asylum state).
596
Long, “Review of UNHCR’s Response,” at [7].
597
Goodwin-Gill and McAdam, for example, suggest that the duty of non-refoulement must
be respected “no matter how debilitating a sudden influx of refugees might be on a State’s
resources, economy, or political situation”: Goodwin-Gill and McAdam, Refugee in
International Law, at 336.
598
UNHCR Executive Committee Conclusion No. 22, “Protection of Asylum-Seekers in
Situations of Large-Scale Influx” (1981), at [II(A)(2)].
599
Ibid. at [II(B)(2)].

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 4.1 r ight to enter and remain in an asylum state 425

lawful presence – including, for example, the right to undertake self-

employment. Even more seriously, Conclusion No. 22 seems to take away
even some rights owed to refugees as soon as they come under the jurisdic-
tion of a state party600 – for example, the right to access courts and for
refugee children to receive elementary education. Refugees arriving as part
of a mass influx are essentially treated as a class apart.601
The problem with this answer to the challenges of mass influx is that while
Executive Committee Conclusion No. 22 is properly regarded as context to be
taken into account in interpreting the Refugee Convention,602 it actually does
more than simply interpret the Convention; it purports instead tacitly to
amend the Convention by authorizing the withholding of rights on terms
not authorized by the treaty – a course of action that is not lawful.603
The UNHCR has consistently hewed closely to the “indefinite suspension of
some rights” approach proposed in Conclusion No. 22.604 But in tacit recogni-
tion that the Executive Committee’s list of rights that can be suspended by a
state faced with a mass influx is not in line with Convention requirements, the
agency has elaborated guidelines defining an expanded list of “minimum
standards of treatment.”605 This list of the rights due to persons subject to
what UNHCR calls “temporary protection,”606 while clearly an improvement
on the approach of Conclusion No. 22, is unfortunately framed in exceedingly

600
Ibid. at [II(B)(2)].
601
A UNHCR discussion paper concedes that “[t]emporary protection is not a protection
scheme replacing the 1951 Convention or obligations arising thereunder (except in crisis/
mass influx situations in the initial phases) [emphasis added]”: UNHCR, “Roundtable on
Temporary Protection: Discussion Paper, Division of International Protection,” July 7,
2012, at 12. Indeed, the Executive Committee has determined that as temporary protection
is “a specific provisional protection response to situations of mass influx providing
immediate emergency protection from refoulement, [it] should be clearly distinguished
from other forms of international protection”: UNHCR Executive Committee Conclusion
No. 103 (2005), at [l].
602
See Chapter 2.2 at note 80.
603
While it is sometimes suggested that Conclusion No. 22 was initially meant to speak only
to non-party states, “it has been recalled on many subsequent occasions to apply to
refugees in the territories of both [party] and non-party states”: Edwards, “Temporary
Protection,” at 625.
604
UNHCR, “Guidelines on Temporary Protection or Stay Arrangements,” Feb. 2014, at [16].
605
Ibid.
606
The label is in truth a misnomer since the proposed status has no clear endpoint and is
thus not truly defined by its temporariness. The alternate regime proposed by UNHCR is
more accurately defined by subjection to a qualitatively inferior regime – hence perhaps
“minimal” or “alternative” protection would be a more candid label than “temporary”
protection. This approach has been taken since 2004: UNHCR, “Protection and
Cooperation in Mass Influx Situations,” UN Doc. EC/54/SC/CRP.11, at [6]. For a history
of the agency’s use of the “temporary protection” term, see UNHCR, “Roundtable on
Temporary Protection: Discussion Paper, Division of International Protection,” July 7,
2012, at [1]–[4].

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 426 4 rights of r efugees physically present

vague language.607 Nor is there any guarantee that the suspension of access to
regularization must at some point come to an end; rather, the Guidelines
simply observe that “[i]n cases of extended stay, or where transition to solu-
tions is delayed, the standards of treatment would need to be gradually
improved.”608
The UNHCR’s approach is problematic in at least two key ways. First, the
agency’s principled effort to attenuate the risks to refugees that reliance on
Conclusion No. 22 entails has ironically resulted in a catalog of duties for states
faced with a mass influx that, even if short of compliance with the Convention,
is nonetheless quite daunting – including not only the duty of non-refoulement,
but more than a dozen other rights.609 As such, it is difficult to see how this
approach meets the concerns of states that have been demonstrably prepared
simply to close their borders to a mass influx of refugees. Second, the agency is
even less well-placed than the Executive Committee to authorize states to
ignore or suspend any obligation under the Convention; it may supervise the
application of the Convention,610 but it is not entrusted with the power to vary
the obligations of states, no matter how dire the circumstances.
Edwards has proposed an answer to this legal conundrum by drawing on
Art. 9 of the Refugee Convention which, as previously analyzed,611 allows a
state to take essential measures to protect national security “in time of war or
other grave and exceptional circumstances.”612 While intended primarily to
enable states at war to intern refugee claimants until their status could be
assessed, the textual scope of Art. 9 is broad – suggesting that in an appropriate
case a state might suspend any of the rights in the Convention. Edwards thus
contends that Art. 9 might be the place613 to ground the right of states to

607
For example, there is no more than a general reference to “self-sufficiency or work
opportunities” and to “education,” standards that are a far cry from the specificity of
cognate duties under the Refugee Convention. There is moreover no provision for access
to the courts; rather there is only “access to UNHCR and, as appropriate, other relevant
international organizations and non-governmental organizations and civil society”:
UNHCR, “Guidelines on Temporary Protection or Stay Arrangements,” Feb. 2014, at
[16]. Despite the agency’s insistence that temporary protection is “without prejudice to
the obligations of States under international law, including particularly the 1951 Refugee
Convention” (ibid. at [8]) it is difficult to see these standards as compliant with the
Convention.
608
Ibid. at [17]. See also UNHCR, “Roundtable on Temporary Protection: Discussion Paper,
Division of International Protection,” July 7, 2012, at [15] (“Rights should improve over
time”).
609
UNHCR, “Guidelines on Temporary Protection or Stay Arrangements,” Feb. 2014, at [16].
See also UNHCR, “Roundtable on Temporary Protection: Discussion Paper, Division of
International Protection,” July 7, 2012, at [12]–[13].
610
See Chapter 1.5.2 at note 212 ff. and Chapter 2.2 at note 86. 611 See Chapter 3.5.1.
612
Refugee Convention, at Art. 9.
613
Edwards, “Temporary Protection,” at 624. Edwards also invokes Art. 8 (“exemption from
exceptional measures”). Art. 8 is not, however, a source of state discretion over refugees but a

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 4.1 r ight to enter and remain in an asylum state 427

derogate from Convention duties when confronted with a mass influx.614

There are, however, problems with this approach. First, Art. 9 authority
must be exercised on an individuated basis (“which it considers to be essential
in the case of a particular person”).615 Second, Art. 9 is explicitly provisional
(“pending a determination by the Contracting State that that person is in fact a
refugee”), thus requiring the state invoking it to proceed to assess status –
precisely what countries faced with a mass influx allege the circumstances
prevent them from doing.616
Painfully aware of the prisoner’s dilemma that the arrival of a “mass influx”
could pose for asylum countries, the drafters debated how best to accommo-
date the critical public order and national security concerns that might arise.617

prohibition of applying to refugees general measures that would be imposed on foreign

nationals. It requires that refugees always be exempted from such general measures, and is
not predicated on any showing that the exceptional measures be discriminatory (but see ibid.
at 622). Nor is her appeal to various ways in which states have acquiesced in rights suspension
by other countries in the context of a mass influx demonstrative of “subsequent agreement . . .
that the Convention impliedly permits the derogation of certain rights” (ibid. at 627–628)
convincing. As observed by Judge Winiarski, “[i]t is sometimes difficult to attribute any
precise legal significance to the conduct of the contracting parties, because it is not always
possible to know with certainty whether they have acted in a certain manner because they
consider that the law so requires or allows, or for reasons of expediency”: Certain Expenses of
the United Nations, [1962] ICJ Rep 151, at 232 (Dissenting Opinion – on another proposition
– of Judge Winiarski). See generally Chapter 2.4.
614
Edwards excludes suspension of the duty of non-refoulement under Art. 9 on the basis of the
non-derogable character of Art. 33: Edwards, “Temporary Protection,” at 624. The same result
is reached on an arguably more solid ground by Cantor, who contends that the provisional
nature of the Art. 9 authority makes it an unwieldy basis to inflict the permanent harm of
refoulement: D. Cantor, “Laws of Unintended Consequence: Nationality, Allegiance, and the
Removal of Refugees during Wartime,” in D. Cantor and J. Durieux eds., Refuge from
Inhumanity: War Refugees and International Humanitarian Law 345 (2014), at 368.
615
Edwards’ effort to read away this language on the grounds that many Convention rights that
accrue to individuals are in practice granted on a group basis is unconvincing since there is of
course no protection downside in such cases. The only example she cites of a putative group-
based disfranchisement is the cessation clause of Art. 1(C)(5)–(6) which she contends “ha[s]
most commonly been applied to groups of refugees”: Edwards, “Temporary Protection,” at
624. This example does not, however, support Edwards’ position. While a state may lawfully
require refugees to respond to prima facie evidence of a fundamental and durable change that
restores protection, cessation may not lawfully be imposed on a group basis: see Hathaway
and Foster, Refugee Status, at 485; and Chapter 7.1.
616
UNHCR has observed that in large-scale influxes, “individual status determination is
either not applicable or feasible, or both”: UNHCR, “Guidelines on Temporary Protection
or Stay Arrangements,” Feb. 2014, at [10].
617
The Swiss and French delegations to the Conference of Plenipotentiaries appear initially to
have argued that non-refoulement proscribes the expulsion of refugees from within a state’s
territory, but not the refusal of admission: Statement of Mr. Zutter of Switzerland, UN Doc. A/
CONF.2/SR.16, July 11, 1951, at 6; and Statement of Mr. Rochefort of France, ibid. On closer
examination, however, it is clear that their intention was not to endorse the routine refoule-
ment of refugees, but rather only to authorize states to defend their frontiers in the event of a

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 428 4 ri g ht s of r e f u g e es p hy s i c a l l y p r e s e n t

The British618 and Swiss619 delegates to the Ad Hoc Committee argued that the
Convention should recognize the traditional prerogative of states to engage in
refoulement where required by vital national security interests.620 In contrast,
France621 and the United States asserted that “it would be highly undesirable to
suggest in the text . . . that there might be cases, even highly exceptional cases,
where a [refugee] might be sent to death or persecution.”622 The latter view
prevailed in the Ad Hoc Committee, resulting in a draft article that made no
mention of any right to engage in refoulement under any circumstances.623
At the Conference of Plenipotentiaries, however, the President observed
that the work of the preparatory Ad Hoc Committee had set perhaps too
absolute a standard of respect for non-refoulement.624 Switzerland and the

threat to their national security engendered by a mass migration of refugees: “The Swiss
Government considered that in the present instance the word [‘return’] applied solely to
refugees who had already entered a country, but were not yet resident there. According to that
interpretation, States were not compelled to allow large groups of persons claiming refugee
status to cross [their] frontiers [emphasis added]”: Statement of Mr. Zutter of Switzerland,
ibid. See also Statement of Baron van Boetzelaer of the Netherlands, ibid. at 11: “He appreci-
ated the importance of the basic principles underlying article [33] but, as a country bordering
on others, was somewhat diffident about assuming unconditional obligations so far as mass
influxes of refugees were concerned [emphasis added].”
618
“National security was a consideration which should take precedence over all others”:
Statement of Sir Leslie Brass of the United Kingdom, UN Doc. E/AC.32/SR.20, Feb. 1,
1950, at 4. “The United Kingdom Government had no thought of acting harshly in such
cases and hoped indeed that the mere existence of the power to expel a man making
trouble might serve to keep his behaviour within reasonable bounds”: Statement of Sir
Leslie Brass, UN Doc. E/AC.32/SR.40, Aug. 22, 1950, at 30.
619
Statement of Mr. Schurch of Switzerland, UN Doc. E/AC.32/SR.40, Aug. 22, 1950, at 32.
620
Similar concerns were raised by Venezuela, which “had experienced disturbances, accom-
panied by violence, in which refugees from various countries had taken part; the people of
Venezuela had suffered a great deal during and following those upheavals and they would not
accept a convention for refugees which contained any provisions that would prevent them
from defending their own institutions. It should be possible to expel all aliens, whether
refugees or not, from the territory of a State [if] public order in that State was threatened”:
Statement of Mr. Perez Perozo of Venezuela, UN Doc. E/AC.32/SR.20, Feb. 1, 1950, at 8.
621
“[A]ny possibility, even in exceptional circumstances, of a genuine refugee . . . being
returned to his country of origin would not only be absolutely inhuman, but was contrary
to the very purposes of the Convention”: Statement of Mr. Juvigny of France, UN Doc. E/
AC.32/SR.40, Aug. 22, 1950, at 33.
622
Statement of Mr. Henkin of the United States, ibid. at 31.
623
UN Doc. E/1850, Aug. 25, 1950, at 25.
624
“The President thought that the Ad Hoc Committee, in drafting article [33], had, perhaps,
established a standard that could not be accepted. That Committee, as could be seen from
its report on its second session, had felt that the principle inherent in article [33] was
fundamental, and that it could not consider any exceptions to the article [emphasis added]”:
Statement of Mr. Larsen of Denmark, UN Doc. A/CONF.2/SR.16, July 11, 1951, at 13. As
is clear from this statement, however, the absolutism of concern to the President was the
unwillingness to consider exceptions to the duty of non-refoulement, as for example were
argued to be necessary in the event of mass influx. The President did not take issue with the

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 4.1 r i g h t t o e n t e r an d r e m a i n i n a n a s y l u m s t a t e 429

Netherlands reasserted the customary understanding that a comprehensive

and absolute duty of non-refoulement was untenable in the face of a mass
influx.625 The President agreed, ruling that “the possibility of mass migrations
across frontiers or of attempted mass migrations was not covered by article
33.”626 To codify this understanding, the French term “refoulement” was added
to the English text of the article following the word “return,” the goal being to
ensure that it was understood that the duty of non-return under Art. 33 would
have “no wider meaning”627 than the French expression, which was agreed not
to apply in the event that national security or public order was genuinely
threatened by a mass influx.
The view that there is an implied limitation on the scope of the duty of non-
refoulement where a state is at grave risk owing to a mass influx is, however,
generally resisted.628 Indeed, Lauterpacht and Bethlehem dismiss this position
out of hand: “Although by reference to passing comments in the travaux
préparatoires of the 1951 Convention, it has on occasion been argued that
the principle does not apply to [mass influx] situations, this is not a view that
has any merit. It is neither supported by the text as adopted nor by subsequent
practice.”629 At the level of text, this position ignores the explicit decision to
add the French language word “refoulement” to the English language version of
Art. 33 in order to ensure that the traditional civil law understanding of that
term (which did not govern in a mass influx) would be formally recognized.630
Moreover, most of the “state practice” invoked by these writers against the
mass influx exception is not properly considered to be state practice at all.631

general scope of the prohibition of refoulement as elaborated by the Ad Hoc Committee as

including both ejection and non-admittance at the frontier.
625
“According to [the Swiss] interpretation, article [33] would not have involved any obliga-
tions in the possible case of mass migrations across frontiers or of attempted mass migra-
tions . . . The Netherlands could not accept any legal obligation in respect of large groups of
refugees seeking access to its territory [emphasis added]”: Statement of Baron van
Boetzelaer of the Netherlands, UN Doc. A/CONF.2/SR.35, July 25, 1951, at 21.
626
Statement of Mr. Larsen of Denmark, ibid.
627
Statement of Mr. Hoare of the United Kingdom, ibid.
628
See e.g. Kälin, “Article 33, para. 1,” at 1377–1379; Wouters, Refoulement, at 156;
J.-F. Durieux and J. McAdam, “Non-refoulement through Time: The Case for a
Derogation Clause to the Refugee Convention in Mass Influx Emergencies,” (2004)
16(1) International Journal of Refugee Law 4 (Durieux and McAdam, “Case for a
Derogation Clause”), at 9–10; Edwards, “Temporary Protection,” at 632–634.
629
Lauterpacht and Bethlehem, “Non-refoulement,” at [103]. 630 See text at note 627.
631
Various memoranda and position papers authored by regional and international agencies
are cobbled together as evidence of state practice in Lauterpacht and Bethlehem, “Non-
refoulement,” at [108]–[110]. Kälin similarly opines that “[i]t is sometimes argued that the
prohibition of refoulement, at least regarding rejection at the frontier, does not apply in
situations of mass influx. Support for this position can be found, to a certain extent, in the
drafting history. Subsequent and uniform practice . . . however, prevails over any drafting
history, [and] evidences . . . that states regularly admit large numbers of refugees to cross
international borders in that in the relatively few cases of push-backs at the border, other

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 430 4 ri g h t s of r e f u g e es ph y s i c a l l y p r e s e nt

Beyond the historical record and textual toehold, there is also a logic – borne
out in much relevant state practice – to allowing states faced with truly extreme
domestic consequences the ability to refuse to admit refugees.632 In the context of
routine, individuated applications for protection, it is of course feasible for states
scrupulously to avoid peremptory acts of refoulement. The applicant can be
admitted to the state’s territory and removed if ultimately adjudged to constitute
a serious risk to either national security or the safety of the community.633 In
contrast, it is not usually practical for a country overwhelmed by a mass influx of
refugees to engage in this kind of detailed, case-by-case analysis of risks to its own
well-being. Insisting that they nonetheless allow all refugees in would, in this
extreme context, be tantamount to demanding that they sacrifice their own most
vital interests in order to protect refugees. It is thus perhaps not surprising that, as
Martin reminds us, the states that adopted the 1967 Declaration on Territorial
Asylum made clear even as they affirmed a comprehensive understanding of the
duty of non-refoulement, “[e]xception may be made to the foregoing principle
only for overriding reasons of national security or in order to safeguard the
population, as in the case of a mass influx of persons.”634 Indeed, this sense that
states cannot be expected to ignore real threats arising from the arrival of large
numbers of refugees was evident in the recent suggestion of the European Court
of Human Rights that large groups of refugees arriving in a disorderly way (rather
than availing themselves of meaningful protection options) might not be entitled
to claim protection against removal.635
That said, it is nonetheless indisputable that the textual basis for a mass influx
exception to the duty of non-refoulement is oblique at best. More importantly,
reliance on an implied exception to limit the duty of non-refoulement where

states have protested such behaviour [emphasis added]”: W. Kälin, “Towards a Concept of
‘Temporary Protection’: A Study Commissioned by the UNHCR Division of International
Protection,” unpublished paper, Nov. 12, 1996, at 13–14. A more circumspect approach to
the definition of state practice relevant to treaty interpretation is, however, called for in the
context of human rights treaties: see Chapter 2.4.
632
A report for UNHCR notes that “this exchange [during the Convention’s drafting] is certainly
proof of states’ anxiety about [the] prospect that observing non-refoulement could require a
state to admit large numbers of refugees”: Long, “Review of UNHCR’s Response,” at [71].
633
Refugee Convention, at Art. 1(F).
634
UNGA Res. 2312 (XXII), 22 UNGAOR Supp. No. 16, at 81, Art. 3(2), cited in D. Martin,
“Interdiction of Asylum Seekers: The Realms of Policy and Law in Refugee Protection,”
University of Virginia School of Law Public Law and Legal Theory Research Paper Series
2014-57 (Sept. 2014), at 2.
635
Noting “the importance of managing and protecting borders,” the Court took the view that
while states “cannot justify recourse to practices which are not compatible with the
Convention,” nor may refugees complain of unlawful expulsion where they “deliberately take
advantage of their large numbers and use force . . . such as to create a clearly disruptive situation
which is difficult to control and endangers public safety” insofar as they have “genuine and
effective access to means of legal entry, in particular border procedures”: ND and NT v. Spain,
Dec. Nos. 8675/15 and 8697/15 (ECtHR, Feb. 13, 2020), at [168], [170], [201].

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 4.1 right to enter a nd remain in an asylum state 431

critical interests are at stake in a mass influx is not a happy solution. It is

unsatisfactory not only because it leaves refugees without protection, but also
because it affords states only a very blunt tool to respond to difficult circum-
stances. The efforts of the UNHCR and its Executive Committee to define an
alternative response thus make good sense, even if the precise way in which the
alternatives have been elaborated does not.
The seeds of a more honest and genuinely effective response to the dilemma
posed by mass influx are, however, suggested by Executive Committee
Conclusion No. 22 itself. Read as a whole, it is clear that Conclusion No. 22
argues for a much less one-sided responsibility than is typically suggested.636
The duty of state parties to respect the principle of non-refoulement (“at least
on a temporary basis”) is in fact balanced against a duty of international
solidarity owed by other state parties to the receiving country:

A mass influx may place unduly heavy burdens on certain countries; a

satisfactory solution of a problem, international in scope and nature,
cannot be achieved without international cooperation. States shall, within
the framework of international solidarity and burden-sharing, take all
necessary measures to assist, at their request, States which have admitted
asylum-seekers in large-scale influx situations [emphasis added].637

This approach draws directly on the language of the Preamble to the Refugee
Convention, itself a part of the context of the treaty for interpretive purposes.638 In
the result, Executive Committee Conclusion No. 22 actually suggests an under-
standing of the duty of non-refoulement that disallows state parties any prerogative
to deny entry to refugees in a mass influx situation so long as there is reason to
believe that the risk to their critical national interests occasioned by the mass
influx will be countered by timely assistance from other states.639 Indeed, much
the same conclusion flows from the limited scope of the mass influx exception as
636
See Lauterpacht and Bethlehem, “Non-refoulement,” at [105], suggesting that by virtue of
UNHCR Executive Committee Conclusion No. 22, “[t]he applicability of the principle [of non-
refoulement] to [mass influx] situations has . . . been affirmed unambiguously by the Executive
Committee.”
637
UNHCR Executive Committee Conclusion No. 22, “Protection of Asylum-Seekers in
Situations of Large-Scale Influx” (1981), at [IV(1)].
638
“Considering that the grant of asylum may place unduly heavy burdens on certain
countries, and that a satisfactory solution of a problem of which the United Nations has
recognized the international scope and nature cannot therefore be achieved without
international co-operation”: Refugee Convention, at Preamble. See Chapter 2.2 at note
63 regarding the importance of a treaty’s preamble as a reference point for interpretation.
639
Although Long has suggested that there should be a “presumption that . . . the burden will
be shared between states” (Long, “Review of UNHCR’s Response,” at [81]) there is clearly
no empirical basis for such a position. In any event, as she herself acknowledges, even if
such a presumption could somehow be justified, it would still not be “a legal obligation,
leaving us with another lopsided commitment shoring up the contemporary refugee
protection regime”: ibid. at [82].

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 432 4 ri g ht s o f re f u g e e s p hy s i c a l l y p r e s e n t

conceived by the drafters of the Convention: states are allowed to deny entry to
refugees only in truly exceptional circumstances, and even then only to the extent
truly necessary to protect their most critical national interests.640 The real answer
is thus an optional protocol or other agreement that binds other state parties to
come to the aid of a country experiencing a mass influx by way of both burden and
responsibility sharing; in return, the receiving state so aided should be required to
respect all applicable refugee and other international human rights. With the
benefit of such a system, no state could legitimately invoke a mass influx exception
to the duty of non-refoulement since the support received would negate the in
extremis argument which is an essential condition for its application.641
Until and unless a speedy and reliable system of international burden and
responsibility sharing is in place, how ought international law to engage state
practice suggesting that the duty of non-refoulement does not apply in the context
of a mass influx? Since none of the usual approaches – arguing that mass influx is
simply legally irrelevant, leveraging soft law or institutional power indirectly to
amend the Convention, squeezing mass influx into a provision intended for
individuated application, or relying on a modest textual amendment to authorize
a major suspension of a core right – is really satisfactory, is there an alternative legal
basis upon which to ground analysis?642
640
The Executive Committee has since taken a more absolutist approach, albeit without
explicit reference to the duty of non-refoulement. “[A]ccess to asylum and the meeting by
all States of their international protection obligations should not be dependent on burden
and responsibility sharing arrangements first being in place, particularly because respect
for human rights and humanitarian principles is a responsibility for all members of the
international community”: UNHCR Executive Committee Conclusion No. 100,
“Conclusion on International Cooperation and Burden and Responsibility Sharing in Mass
Influx Situations” (2004), at Preamble. The same Conclusion, however, “[r]eaffirm[s], in
regard to mass influx, the guidance on reinforcing burden and responsibility sharing, includ-
ing in particular that set out in Conclusion No. 22 (XXXII) of 1981 on the protection of
asylum-seekers in situations of large-scale influx”: ibid. at Preamble.
641
The prospects for such a commitment appear tragically remote. The New York Refugee
Declaration of 2016 proclaimed that “[t]o address the needs of refugees and receiving States,
we commit to a more equitable sharing of the burden and responsibility for hosting and
supporting the world’s refugees, while taking account of existing contributions and the
differing capacities and resources among States”: “New York Declaration for Refugees and
Migrants,” UN Doc. A/RES/71/1, Sept. 19, 2016, at [68]. The operational “Comprehensive
Refugee Response Framework,” however, promised only that “States, in cooperation with
multilateral donors and private sector partners, as appropriate, would, in coordination with
receiving States . . . [m]obilize adequate financial and other resources to cover the humanitar-
ian needs identified within the comprehensive refugee response framework”: ibid. at
Annex, [6a].
642
A proposal has been made to amend the Refugee Convention to include an emergency
derogation clause that could be activated in the context of a mass influx: see Durieux and
McAdam, “Case for a Derogation Clause.” While such a codification would, as argued, present
the opportunity to clarify both normative and procedural expectations, reopening treaty
obligations would, of course, also afford the opportunity for a significant retreat from duties
owed to refugees (including, but in no sense limited to, the duty of non-refoulement).

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 4.1 right to enter and remai n in an asylum state 433

International experts attending the Eighth Colloquium on Challenges in

International Refugee Law in 2017 determined that there was: the doctrine of
necessity. A state of necessity exists when a country is threatened by a grave and
imminent peril and has no means of safeguarding an essential interest but to act
in a manner that is not in conformity with its international legal obligations.643
In such a situation, so long as the actions taken are “the only way”644 to protect
an essential interest and the state in question has “not contributed to the
situation of necessity,”645 no internationally wrongful act is committed. As
succinctly framed by Crawford and Olleson, “[a] State is not required to sacrifice
human life or to suffer inordinate damage to its interests in order to fulfil its
international obligations.”646 Invocation of necessity is not, however, a simple
matter of making a relevant declaration;647 to the contrary, the onus falls on the
state invoking necessity to demonstrate that the conditions and requirements of
necessity are fulfilled in the particular case.648 Applying the principle to the mass
influx context, agreement was reached at the Colloquium that:

The existence of a mass influx of refugees, defined as a situation in which the

number of refugees arriving at a state’s frontiers clearly exceeds the capacity of
that state to receive and to protect them, may, in an extreme case, justify
derogation from one or more Convention or other rights on the basis of the
principle of necessity. Derogation based upon necessity may be invoked only if
the state faces a grave and imminent peril and must derogate in order to
safeguard an essential interest.
A state may, however, only invoke necessity where it has not contributed
to the peril. It must also continuously assess that peril and its response
thereto in order to ensure that the derogation undertaken remains neces-
sary. Because derogation is necessary only if it is the least intrusive response
capable of safeguarding the essential interest, the refoulement of refugees will
almost invariably be impermissible. More generally, if and when a depend-
able system of burden and responsibility sharing as envisaged by the

643
J. Crawford, The International Law Commission’s Articles on State Responsibility:
Introduction, Text and Commentaries (2002), at 178. The doctrine has been approved by
the International Court of Justice in Gabčíkovo–Nagymaros Project (Hungary v. Slovakia),
[1997] ICJ Rep 40, at [51]; and Legal Consequences of the Construction of a Wall in the
Occupied Palestinian Territory, Advisory Opinion, [2004] ICJ Rep 136, at [140].
644
International Law Commission, “Articles on the Responsibility of States for
Internationally Wrongful Acts,” annexed to UNGA Res. 56/83 (2002), Dec. 12, 2001, at
Art. 25(1)(a).
645
Ibid. at Art. 25(1)(b).
646
J. Crawford and S. Olleson, “The Nature and Forms of International Responsibility,” in
M. Evans ed., International Law 446 (2003), at 464.
647
This is one of the real problems with the malleable “mass influx” approach. As Edwards
observes, “states have been able to call a particular situation a mass influx and to adopt
special arrangements for refugees in response, when objectively it may be clear that the
situation is not . . . a mass influx”: Edwards, “Temporary Protection,” at 604.
648
Gabčíkovo–Nagymaros Project (Hungary v. Slovakia), [1997] ICJ Rep 40, at [51].

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 434 4 ri g ht s of re f u g e e s p hy s i c a l l y p r e s e n t

Convention’s Preamble is implemented, the conditions precedent for lawful

resort to necessity-based derogation are unlikely to be satisfied.649

Drawing on this approach, most recent invocations of a “mass influx exception”

to the duty of non-refoulement can be adjudged unjustified. For example, Turkey’s
1991 refusal of entry to Kurdish refugees650 was not capacity-based, but rather a
response to political sensitivities about adding to the strength of its own domestic
Kurdish population. Concerns about demographic change also largely fueled
Kenya’s 2007 decision to refuse entry to ethnic Somalis651 and, even more clearly,
Jordan’s 2014 denial of entry to ethnic Palestinian refugees arriving from Syria.652
Despite the fact that each of these countries had already made significant contri-
butions to refugee protection, the border closures were not dictated by imminent
peril, but rather reflected ethnic discrimination closely linked to domestic politics.
Nor can a credible case of necessity be made out when real offers of inter-
national assistance exist. Thailand, for example, had effectively put itself in a
position of administrative incapacity to respond to Vietnamese refugees653 by
refusing an offer from the United States to build new facilities to provide for the
arriving refugees; similarly, Croatia, Macedonia, Serbia, and Slovenia chose to take
blunt deterrent measures notwithstanding Germany’s offer to receive the refugees
arriving at their borders and European Union assurances of support.654 Because
the existence of such external support would have answered any allegation of
insufficient reception capacity, a claim grounded in necessity would fail. While no
doubt a closer case,655 Macedonia’s 1999 closure of its border to Kosovo Albanian
refugees656 appears to have been less a truly unavoidable act premised on necessity
than a bargaining chip to garner increased support from other countries to cope
with the refugee flow. As Eggli has concluded, Macedonia was “playing politics
with refugees,”657 making it difficult to see its actions as limited to strictly what
was required in order to avoid fundamental risk to its own most basic interests.
Two other recent cases, however, present more arguable claims for a necessity-
based exception to at least some significant Convention obligations. Pakistan’s
closure of its border to Afghan refugees in 2000658 came only after it had already
received, and hosted, millions of Afghan refugees for many years. The decision to
649
“The Michigan Guidelines on Refugee Freedom of Movement,” (2017) 39 Michigan
Journal of International Law 1, at [12]–[13].
650 651 652
See text at note 10. See text at note 14. See text at note 17.
653 654
See text at note 69. See text at note 21.
655
There is no doubt that the security situation for Macedonia was grave: the number of
refugees seeking entry was nearly 20 percent of the host country’s population, and would –
if admitted more than strictly temporarily – seriously exacerbate an already volatile political
situation by fundamentally changing Macedonia’s ethnic balance. See M. Barutciski and
A. Suhrke, “Lessons from the Kosovo Refugee Crisis: Innovations in Protection and
Burden-Sharing,” (2001) 14(2) Journal of Refugee Studies 95.
656
See text at note 12.
657
A. Eggli, Mass Refugee Influx and the Limits of Public International Law (2001), at 225.
658
See text at note 13.

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 4.1 right to enter and remai n in an asylum state 435

close the border was made only after a marked increase in arrivals and against the
backdrop of UNHCR and the World Food Programme having ended food aid and
other assistance programs for refugees due to funding shortfalls. As a study for
UNHCR observed, “[t]he act of closing signaled a cumulative frustration with the
failures of international refugee policy.”659 An even more compelling case can be
made in the context of the 1994 border closings by Zaïre and Tanzania to refugee
flows from Rwanda and Burundi.660 Both states had been overwhelmed by hun-
dreds of thousands of refugees, and were faced with the imminent prospect of
additional flows at the time of the border closures. At least in the case of Zaïre, there
was also good reason to believe that internal security could be threatened by the
entry of refugees, many of whom were suspected of having committed serious
criminal offenses. The decisions to suspend border crossings were moreover of
limited duration, while efforts to secure international resources to protect refugees
were being pursued.
While opinions may differ about whether the clearly dire circumstances of
Pakistan, Tanzania, and Zaïre truly warranted refoulement or perhaps only some
lesser suspension of duties owed to refugees, the necessity framework seems the
right place for the debate. Not only is this approach firmly anchored in general
international law, but it is neatly predicated on enabling asylum states to preserve
their own vital interests in a manner that does not subject refugees to rights
deprivations in other than an extreme and truly unavoidable situation, and only
to the extent that these are demonstrably required.661 The necessity doctrine does
not rule out the possibility of a genuinely exceptional resort to refoulement in the
case of mass influx, though it tightly constrains that possibility. And perhaps most
important, it makes clear that once a solid and reliable burden and responsibility
sharing mechanism is in place, there will be no need for even this exceedingly
narrow implied exception to the duty of non-refoulement.

4.1.6 An Expanded Concept of Non-refoulement?

It is frequently argued that the duty to avoid the refoulement of refugees has evolved
at the universal level beyond the scope of Art. 33 of the Refugee Convention.662 In
two important scholarly studies – a foundational analysis prepared in 2003 for the
659
Long, “Review of UNHCR’s Response,” at [268]. 660 See text at note 11.
661
Most fundamentally, there can be no question of avoiding the duty of non-refoulement under
this implied exception where the numbers arriving and the resources of the receiving state are
such that security concerns can be addressed under the individuated exceptions set by Art.
33(2).
662
See e.g. Kälin, “Article 33, para. 1,” at 1342; Goodwin-Gill and McAdam, Refugee in
International Law, at 354; J. Allain, “The Jus Cogens Nature of Non-refoulement,” (2001) 13
International Journal of Refugee Law 533, at 538. But see K. Hailbronner, “Non-refoulement and
‘Humanitarian’ Refugees: Customary International Law or Wishful Legal Thinking?,” (1986)
26 Virginia Journal of International Law 857 (Hailbronner, “Wishful Legal Thinking?”), at
861–867.

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UNHCR by Lauterpacht and Bethlehem663 and a more recent and probing analysis
by Costello and Foster in 2016664 – the argument is made that even states not bound
by the Refugee Convention (or any other treaty) are required by customary
international law to protect refugees against refoulement. Indeed, Lauterpacht
and Bethlehem say that the customary duty of non-refoulement is owed not only
to any refugee, but also to any potential victim of torture, cruel or inhuman or
degrading treatment or punishment (“torture”), as well as to most persons facing
risk to “life, physical integrity, or liberty.”665 Costello and Foster go farther still,
claiming that the customary duty of non-refoulement applies to anyone who faces
“return to serious human rights violations, unless the risk in question is not
sufficiently ‘real’ [emphasis added]”;666 and further that this duty is a jus cogens
norm667 – that is, a “super norm” that trumps any conflicting claim.668

663
Lauterpacht and Bethlehem, “Non-refoulement”.
664
C. Costello and M. Foster, “Non-refoulement as Custom and Jus Cogens? Putting the
Prohibition to the Test,” in M. den Heijer and H. van der Wilt eds., [2016] Netherlands
Yearbook of International Law 273 (Costello and Foster, “Custom and Jus Cogens”).
665
Lauterpacht and Bethlehem, “Non-refoulement,” at [253]. They argue, however, that the duty of
non-refoulement in relation to persons who face a threat to “life, physical security, or liberty” not
rising to the level of a risk of “torture or cruel, inhuman or degrading treatment or punishment”
can be trumped by “overriding reasons of national security or public safety”: ibid. at [253(c)].
666
Costello and Foster, “Custom and Jus Cogens,” at 285.
667
This claim fails for several reasons. Even on the test proposed by Costello and Foster –
namely whether “there is sufficiently widespread opinio [juris]” (Costello and Foster,
“Custom and Jus Cogens”, at 307) – the analysis at note 701 ff. shows that there is not.
They also attempt to read away the minimum condition for jus cogens status (non-
derogability: see Vienna Convention on the Law of Treaties, 1155 UNTS 331 (UNTS
18232), done May 23, 1969, at Art. 53), suggesting that Moore’s more forthright analysis
that Art. 33(2) exceptions to the duty of non-refoulement be taken into account “is a wrong
move”: Costello and Foster, “Custom and Jus Cogens”, at 312, rejecting J. Moore,
“Protection against the Forced Return of War Refugees: An Interdisciplinary Consensus
on Humanitarian Non-refoulement,” in D. Cantor and J.-F. Durieux eds., Refuge from
Inhumanity? War Refugees and International Humanitarian Law 411 (2014), at 416. See
also Edwards, “Temporary Protection,” at 632, indicating that the exceptions to the duty of
non-refoulement set by Art. 33(2) “speak[] against art. 33 being able to achieve the status of
a jus cogens norm, against which no derogation is permitted.” Indeed, Goodwin-Gill and
McAdam opine that the claim that non-refoulement is a jus cogens norm “is far less certain
[than its customary law status], and it may be that little is likely to be achieved by insisting
on its status as such”: Goodwin-Gill and McAdam, Refugee in International Law, at 346, n.
421. The Supreme Court of Canada noted the claim that non-refoulement is jus cogens, but
declined to determine it, noting that the claim “is controversial among international
scholars”: Jószek Németh v. Minister of Justice of Canada, [2010] SCC 56 (Can. SC, Nov.
25, 2010), at [104]. See also C v. Director of Immigration, Dec. No. HCAL 132/2006 (HK
HC, Feb. 18, 2008), at [133]–[135] (“I think it goes too far to hold – at this time – that the
[non-refoulement] rule has acquired the status of a peremptory norm. Put another way, the
ideal does not accord with present reality and, if the ideal is to prevail, it may bring the
norm itself into disrepute”).
668
Costello and Foster, “Custom and Jus Cogens,” at 309. The attribution of status as “higher
law” derives from the intersection of a given norm with the general principle of law

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 4.1 ri ght to enter and remain in an asylum state 437

On the core question of whether there is today a customary international

legal duty binding all states to avoid the refoulement of refugees, the two
analyses are largely in sync. The essence of their reasoning is that the frequency
with which some sort of duty of non-refoulement has been agreed – albeit in
different contexts, arising under different treaties, and for different beneficiar-
ies – means that it has become a norm of such generality that it is now the case
that all states – even those that have accepted not a single treaty-based obliga-
tion of non-refoulement – are now legally obligated to honor that duty.669
Lauterpacht and Bethlehem invoke the decision of the International Court of
Justice (ICJ) in the North Sea Continental Shelf Cases670 for the view that
treaties “may influence the creation of . . . a rule of custom.”671 They argue
that because the treaty-based principle of non-refoulement is of norm-creating
character,672 enjoys widespread and representative state support,673 and has
stimulated consistent relevant practice,674 “non-refoulement must be regarded
as a principle of customary international law.”675 Costello and Foster676 simi-
larly contend that “[t]he principle of non-refoulement embodied in a wide
range of treaties has the same fundamental core, albeit expressed in slightly
different terms across different instruments.”677
This argument has proven quite seductive, garnering the support not only of
the UNHCR678 but also of the only top court explicitly to analyze the claim, the
Hong Kong Court of Final Appeal:

prohibiting agreements that are inconsistent with the most basic values of the inter-
national community: F. Domb, “Jus Cogens and Human Rights,” (1976) 6 Israeli
Yearbook of Human Rights 104.
669
Yet “the concordance of even a considerable number of treaties per se constitutes neither
sufficient evidence nor even a sufficient presumption that the international community as
a whole considers such treaties as evidence of general customary law”: International Law
Commission, “Third Report on Identification of Customary International Law,” UN Doc.
A/CN.4/682, Mar. 27, 2015, at [42], quoting K. Wolfke, “Treaties and Custom: Aspects of
Interrelation,” in J. Klabbers and R. Lefeber eds., Essays on the Law of Treaties: A Collection
of Essays in Honour of Bert Vierdag 31 (1998), at 35.
670
North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal
Republic of Germany/Netherlands), [1969] ICJ Rep 3, cited in Lauterpacht and
Bethlehem, “Non-refoulement,” at [198].
671
Lauterpacht and Bethlehem, “Non-refoulement,” at [198].
672
Ibid. at [201]–[208]. They add for good measure, that there is an “evident lack of expressed
objection by any state to the normative character of the principle of non-refoulement”:
ibid. at [216].
673
Ibid. at [209]–[210]. 674 Ibid. at [211]–[215].
675
Ibid. at [216]. Somewhat confusingly, the authors also seem to suggest that non-refoulement is
a general principle of international law, though they provide no analysis in support of that
view: ibid. Their analysis is largely adopted in Kälin, “Article 33, para. 1,” at 1344.
676
Costello and Foster, “Custom and Jus Cogens,” at 283–285. 677 Ibid. at 284.
678
UNHCR, Intervention before the Court of Final Appeal of the Hong Kong Special
Administrative Region in the case between C, KMF, BF (Applicants) and Director of
Immigration, Secretary for Security (Respondents), Civil Appeals Nos. 18, 19 and 20 of

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 438 4 ri g ht s of re f u g e e s p hy s i c a l l y p r e s e n t

The principle of non-refoulement developed under international refugee

and human rights law stems from a single unified value: States must not
exercise their right to remove, in any manner whatsoever, people from
their territory and/or jurisdiction, where they face a threat to their lives or
freedoms.679

Yet this approach raises both a logical and a legal challenge.

At the level of logic, while non-refoulement is commonly referred to as a
principle or a norm, in fact it is neither. It is rather a mechanism – that is, a
means by which a principle or norm may be effectuated, not a principle or
norm itself. As applied to refugees, it precludes return to the risk of being
persecuted.680 The same mechanism exists in the Torture Convention to
benefit a different group of persons – those who face the probability of
torture.681 The mechanism has been found to be implicit in the Civil and
Political Covenant, this time operating to stop states from returning individ-
uals subject to arbitrary deprivation of life, as well as those who face cruel,
inhuman, or degrading treatment or punishment or torture.682 Multiple other
variants exist: there is a duty of non-refoulement to stop people from being
“disappeared,”683 to prevent civilians from being forced back into ongoing
armed conflict,684 to prevent removals at odds with the best interests of the

2011, Jan. 31, 2013, at [18]–[27]; UNHCR, “Advisory Opinion on the Extraterritorial
Application of Non-refoulement Obligations under the 1951 Convention relating to the
Status of Refugees and its 1967 Protocol,” Jan. 26, 2007, at [14]–[22].
679
C v. Director of Immigration, Dec. No. FACV 18, 19 and 20/2011 (HK CFA, Jan. 31, 2013),
at [17]. The same conclusion was also reached in Kenya National Commission on Human
Rights v. Attorney General, Constitutional Petition No. 227 of 2016 (Ken. HC, Feb. 9,
2017), at 15–16. The International Criminal Court has moreover noted that “[t]he ‘non-
refoulement’ principle is considered to be a norm of customary international law,” though
it offered no analysis on point: Situation en Republique Democratique du Congo: Le
Procureur c. Germain Katanga et Mathieu Ngudjolo Chui, Dec. ICC-01/04-01/07 (ICC,
June 9, 2011), at [68].
680
Refugee Convention, at Art. 33(1). See Chapter 4.1.1.
681
Torture Convention, at Art. 3. See text at note 816.
682
UN Human Rights Committee, “General Comment No. 31: The Nature of the General
Legal Obligation Imposed on States Parties to the Covenant” (2004), UN Doc. HRI/GEN/
1/Rev.7, May 12, 2004, at [12]; UN Human Rights Committee, “General Comment No. 36
on Article 6 of the International Covenant on Civil and Political Rights, on the Right to
Life,” Revised draft prepared by the Rapporteur, UN Doc. CCPR/C/GC/R.36/Rev.5, July
26, 2016, at [34]. See text at notes 819–821.
683
International Convention for the Protection of All Persons against Enforced
Disappearance, 2716 UNTS 3 (UNTS 48088), adopted Dec. 20, 2006, entered into force
Dec. 23, 2010, at Art. 16(1). See text at note 817.
684
R. Ziegler, “Non-refoulement between ‘Common Article 1’ and ‘Common Article 3,’” in
D. Cantor and J.-F. Durieux eds., Refuge from Inhumanity: War Refugees and International
Humanitarian Law 386 (2014) (Ziegler, “‘Common Article 1’ and ‘Common Article 3’”).
See text at note 817.

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 4.1 r ight to enter and remain in an asylum state 439

child,685 and – at least in Europe – to avoid a whole host of possible rights

infringements, including at least some cases of enslavement, loss of liberty and
security, subjection to an unfair trial, unlawful punishment, breach of privacy and
family rights, and denial of the freedom of thought, conscience, and religion.686
Because the non-refoulement mechanism operates to achieve a different end
in each different treaty-based context, to say that nearly all states accept at least
some duty of non-refoulement is not to say anything with substantive mean-
ing.687 How could the existence of this panoply of different duties operational-
ized at least in part by a common mechanism be said to give rise to a common
duty? The only thing in common is the means to a variety of different ends; that
fact simply does not result in a shared substantive obligation.688
By way of analogy, the courts of virtually all states authorize resort to the
mechanism of injunctive relief in at least some circumstances. Yet it would be
meaningless to claim a normative consensus on a duty “to issue injunctions”
without evidence of substantive accord on the circumstances in which the
remedy is to be granted. Costello and Foster misunderstand this concern,689
invoking the International Law Commission’s sensible view that “the repetition
of similar or identical provisions in a large number of bilateral treaties may give
rise to a rule of customary international law or attest to its existence.”690 That is
of course true – but this principle would be relevant only if non-refoulement did
“similar or identical” work under the various treaties – for example, if five
treaties all required states to grant torture victims protection against refoulement.
There is simply no basis to apply this principle to substantively divergent duties
sharing no more than an implementation mechanism. Nor is the fact of multiple
treaties sharing a common mechanism more relevant when framed as evidence

685
J. Pobjoy, “The Best Interests of the Child Principle as an Independent Source of
International Protection,” (2015) 64(2) International and Comparative Law Quarterly
327 (Pobjoy, “Best Interests”). See text at note 818.
686
A succinct summary of key case law establishing these implied duties of non-refoulement is
provided in Costello and Foster, “Custom and Jus Cogens,” at 285. For a more detailed
analysis, see K. Greenman, “A Castle Built on Sand? Article 3 ECHR and the Source of Risk
in Non-refoulement Obligations in International Law,” (2015) 27(2) International Journal
of Refugee Law 264 (Greenman, “Castle Built on Sand?”).
687
Indeed, Costello and Foster concede that “[t]he key challenge is that there is often no
definition of the beneficiary class in the numerous General Assembly resolutions or
Executive Committee Conclusions on this point, and many of the sources relied upon . . .
are similarly imprecise”: Costello and Foster, “Custom and Jus Cogens,” at 305.
688
Costello and Foster acknowledge that “[a]lthough the texts differ in terms of the focal
harms, the duty of non-refoulement is similar in all cases. It prohibits return to serious
human rights violations”: ibid. at 285. This passage makes clear that it is really only the
operational mechanism – the thing that “prohibits return” – that is shared.
689
The concern is not, as has been suggested, that “the various treaties cited are not identical”:
but see ibid. at 284.
690
Ibid., citing M. Wood, “Third Report on Identification of Customary International Law,”
UN Doc. A/CN.4/682, Mar. 27, 2015, at [42].

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 440 4 r igh ts of r efug ee s ph ys ica lly p r es en t

of opinio juris, the approach taken by Lauterpacht and Bethlehem. Precisely what
is it that states can be said to feel bound to do by reason of scholars having
cobbled together disparate commitments with only the veneer of a remedial
mechanism – non-refoulement – in common?
Not only can no unifying principle be identified, but the logic of the assertion
is baffling. State “A” signs a treaty proscribing the refoulement of refugees; State
“B” commits to no refoulement of people at risk of torture; State “C” signs on to a
treaty pursuant to which it must avoid the refoulement of civilians into armed
conflict; and State “D” refuses to sign any treaty at all. Under the approach
championed in particular by Costello and Foster,691 all four states would –
irrespective of their treaty obligations or lack thereof – be legally required to
avoid the refoulement of the combined class of refugees, those who might be
tortured, civilians fleeing armed conflict, and perhaps more.692 Their consent to
be bound by one or more treaties would effectively be rendered irrelevant.
Given the gravity of an assertion that customary international law arising
from the existence of treaties overrides the specificity of treaty obligations, any
such claim must be approached with real caution. The basic notion that
customary law may emerge from a treaty-based norm is of course well
accepted. At least since the Asylum case,693 it has been recognized that the
tree of customary international law can grow from the acorn of specific
treaties.694 Importantly, though, the focus must be mainly on the practice of
states not already bound by the treaty to act in accordance with the norm, as
what “States do in pursuance of their treaty obligations is prima facie referable
only to the treaty, and therefore does not count towards the formation of a
customary rule.”695 It must moreover be recognized that the role of the treaty-
based norm is essentially auxiliary:696 it crystallizes the content of the putative
norm697 and provides a context within which the two essential elements of a

691
Costello and Foster, “Custom and Jus Cogens,” at 285. 692 Ibid.
693
Asylum Case (Colombia v. Peru), [1950] ICJ Rep 266. 694 Ibid. at 277.
695
M. Mendelson and R. Mullerson, “Final Report, International Law Association, Statement
of Principles Applicable to the Formation of General Customary International Law”
(2000) (ILA, “General Custom”), at 758. The main exception is “the conduct of parties
to a treaty in relation to non-parties [since that] is not practice under the treaty, and
therefore counts towards the formation of customary law”: ibid.
696
“It is of course axiomatic that the material of customary international law is to be looked
for primarily in the actual practice and opinio juris of States, even though multilateral
conventions may have an important role to play in recording and defining rules deriving
from custom, or indeed in developing them”: Continental Shelf (Libyan Arab Jamahiriya v.
Malta), Judgment, [1985] ICJ Rep 13, at [27]. See also Military and Paramilitary Activities
in and against Nicaragua (Nicaragua v. United States), Merits, [1986] ICJ Rep 14, at [183];
and Legality of the Threat or Use of Nuclear Weapons, [1996] ICJ Rep 226, at [64].
697
Thus, the norm must “be of a fundamentally norm-creating character such as could be
regarded as forming the basis of a general rule of law”: North Sea Continental Shelf Cases
(Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands),
[1969] ICJ Rep 3, at [72].

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 4.1 ri g h t t o en t er an d r emai n i n an asylu m state 441

customary norm – opinio juris and consistent state practice698 – can be

located.699 In the case of the putative customary duty of non-refoulement,
these two essential requirements for the emergence of customary international
law are simply not clearly established,700 especially not as regards states that
have yet to agree to be bound by the Refugee Convention’s duty of non-
refoulement.

4.1.6.1 Opinio Juris?

To begin – even if we can somehow get over the basic challenge that non-
refoulement is a mechanism to implement norms rather than a norm itself – is
there opinio juris sufficient to justify the putative norm?701 The rigid traditional
understanding of opinio juris sive necessitatis – requiring that the observed
uniformity of practice be a consequence of a sense of legal obligation702 – has of
course given way to the less demanding requirement “of an express, or most
often presumed, acceptance of the practice as law by all interested states.”703 It

698
Ibid. at [209]–[215]. “[T]he substance of [customary] law must be ‘looked for primarily in
the actual practice and opinio juris of States’”: Military and Paramilitary Activities in and
against Nicaragua (Nicaragua v. United States), Merits, [1986] ICJ Rep 14, at [64]. Accord
ILA, “General Custom,” at [9].
699
“At best, the recommendation made by the Council constitutes the point of departure of
an administrative practice”: Reservations to the Convention on the Prevention and
Punishment of the Crime of Genocide, [1951] ICJ Rep 15, at 25.
700
To be fair, customary international law is notoriously murky terrain. As Goldsmith and
Posner write, “[i]t is unclear which state acts count as evidence of a custom, or how broad
consistent state practice must be to satisfy the custom requirement. It is also unclear what
it means for a nation to follow a custom from a sense of legal obligation, or how one
determines whether such an obligation exists”: J. Goldsmith and E. Posner, “A Theory of
Customary International Law,” (1999) 66 University of Chicago Law Review 1113, at 1114.
In the result, “international law arguments based on custom always suffer from a consid-
erable degree of arbitrariness”: N. Petersen, “Customary Law Without Custom? Rules,
Principles, and the Role of State Practice in International Norm Creation,” (2007) 23(2)
American University International Law Review 275, at 277.
701
Anthony D’Amato has strongly criticized the ICJ for commencing with analysis of opinio
juris (rather than with analysis of whether there is consistent relevant state practice) in the
Nicaragua case: A. D’Amato, “Trashing Customary International Law,” (1987) 81
American Journal of International Law 101 (D’Amato, “Trashing”), at 102. But as Oscar
Schachter has observed, “[e]ven if the [reversal] seemed to place the cart before the horse,
it did not depart in principle from the basic postulate that binding custom was the result of
the two elements: State practice and opinio juris”: O. Schachter, “New Custom: Power,
Opinio Juris and Contrary Practice,” in J. Makarczyk ed., Theory of International Law at
the Threshold of the 21st Century: Essays in Honour of Krzysztof Skubiszewski 531 (1996)
(Schachter, “New Custom”), at 534.
702
Only if relevant state actions are “based on their being conscious of having a duty to [act in
a particular way] would it be possible to speak of an international custom”: The Case of the
SS “Lotus,” [1927] PCIJ Rep, Series A, No. 10, at 28.
703
K. Wolfke, Custom in Present International Law (1993) (“Wolfke, Custom”), at 51. See also
ILA, “General Custom,” at 10: “[T]he main function of the subjective elements is to

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 442 4 ri g h t s of r e f u g e es ph y s i c a l l y p r e s e nt

is sufficient to show that states presently regard the putative norm as legally
compelled, even if their concordant actions in keeping with the norm were not
induced by a sense of legal duty. There is moreover good authority that opinio
juris can be shown in many different ways. In its Nicaragua decision, for
example, the ICJ held that “opinio juris may, though with all due caution, be
deduced from, inter alia, the attitude of . . . States towards certain General
Assembly resolutions . . . support of [regional conference] resolutions . . . [and]
statements by State representatives.”704
Despite this very flexible approach to the material basis for identification of
opinio juris, the specific facts relied upon by Lauterpacht and Bethlehem fall
short. They ground their claim of opinio juris for a universally binding duty of
non-refoulement on a combination of, first, the “near-universal acceptance”705
of a non-refoulement duty in various UN and regional treaties; and second, the
unanimous adoption by the General Assembly of the 1967 Declaration on
Territorial Asylum, coupled with the absence of express opposition to the
principle of non-refoulement by the states which neither signed a relevant
treaty nor were present in the General Assembly when the 1967 declaration
was adopted.706 Costello and Foster take a more credible but still challenging
tack, drawing on a broader range of General Assembly resolutions,707 and the
Conclusions on International Protection of the UNHCR’s Executive
Committee.708
For reasons noted above,709 the core of Lauterpacht and Bethlehem’s opinio
juris claim is substantively rickety. For a single rule of customary international

indicate what practice counts (or, more precisely, does not count) towards the formation
of a customary rule.” As Kammerhofer writes, “[t]he concept of opinio juris is arguably the
centrepiece of customary international law. It is the most disputed, least comprehended
component of the workings of customary international law. At the heart of the debate lies
an important conflict: on the one hand, customary law-making seems by nature indirect
and unintentional. On the other hand, law-making normally requires some form of
intentional activity, an act of will. In the international legal system, great value has
traditionally been placed in the states’ agreement or consent to create legal obligations
binding on them” : J. Kammerhofer, “Uncertainty in the Formal Sources of International
Law: Customary International Law and Some of Its Problems,” (2004) 15 European
Journal of International Law 523 (Kammerhofer, “Uncertainty”), at 532.
704
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States),
Merits, [1986] ICJ Rep 14, at [188]–[190]. A similar position is taken by J. Crawford,
Brownlie’s Principles of Public International Law (2012) (Crawford, Brownlie’s Public
International Law), at 24. But see J. Kelly, “The Twilight of Customary International
Law,” (2000) 40 Virginia Journal of International Law 449 (Kelly, “Twilight”), at 487:
“Aspirational or recommendatory instruments, enacted while states remain unwilling to
sign concrete treaties, provide compelling evidence that states lack the normative convic-
tion necessary to create customary obligations, rather than evidence that states believe
these norms are binding.”
705
Lauterpacht and Bethlehem, “Non-refoulement,” at [209]. 706 Ibid. at [209].
707
Costello and Foster, “Custom and Jus Cogens,” at 287–289. 708 Ibid. at 290–291.
709
See text at note 690.

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 4.1 r ight to enter and remain in an asylum state 443

law to emerge, the indicia of opinio juris must clearly relate to the same putative
rule.710 In contrast, Lauterpacht and Bethlehem weave together disparate bits of
opinio juris arising from distinct treaties dealing with distinct issues to locate
opinio juris for a principle that is more comprehensive than any of the underlying
commitments. Specifically, they argue that because nearly all UN member states
“participat[e] in some or other conventional arrangement embodying non-
refoulement”711 – that is, they have all agreed to be bound by at least one of
Art. 33 of the Refugee Convention, Art. 3 of the Torture Convention, Arts. 6 and 7
of the Civil and Political Covenant, or by a comparable provision under a relevant
regional treaty – it is now possible to conclude that there is a sufficiently wide-
spread and representative opinio juris for an overarching principle that “non-
refoulement must be regarded as a principle of customary international law.”712
But because non-refoulement is merely a means to a protection end, it can
only be the subject of general acceptance within a particular context. That is,
the assertion that all states accept the duty of protection against refoulement
assumes some agreement about the circumstances in which the duty is owed.
Yet there is no such agreement, since the evidence of opinio juris relied upon by
Lauterpacht and Bethlehem sometimes relates to persons who have a well-
founded fear of being persecuted; in other cases, to persons at risk of torture;
and in still other circumstances, to persons at risk of other forms of human
rights abuse. There is, in short, no common acceptance of the duty of non-
refoulement related to any particular class of persons or type of risk, much less
to their combined beneficiary class.713 Costello and Foster sensibly decline to
assert that the existence of various treaties embodying the non-refoulement
mechanism amounts to opinio juris of the broader norm they favor,714 though
they resuscitate the argument indirectly in an awkward effort to prove that
states that have not acceded to the Refugee Convention nonetheless accept the
duty to avoid the refoulement of refugees.715
710
Writing in relation to the practice component of customary law, Villiger observes that “the
condition of uniform practice requires that the instances of practice of individual States
and of States in general circumscribe, apply, or refer to, and thereby express, the same
customary rule”: M. Villiger, Customary International Law and Treaties: A Manual of
Theory and Practice of the Interrelation of Sources (1997) (Villiger, Interrelation of
Sources), at 43.
711
Lauterpacht and Bethlehem, “Non-refoulement,” at [210]. 712 Ibid. at [216].
713
Considering the combined effect of Art. 33 of the Refugee Convention and the duty of
non-return arising from the European Convention on Human Rights, the English Court
of Appeal sensibly described the Refugee Convention norm as “overlain by the provisions
of the ECHR” (MS and MBT v. Secretary of State for the Home Department, [2017] EWCA
Civ 1190 (Eng. CA, July 31, 2017), at [7]) – thus recognizing the independent if overlap-
ping nature of the duties arising under the two treaties.
714
Costello and Foster, “Custom and Jus Cogens,” at 285–286.
715
Despite the fact that many states in Asia and the Middle East have declined to sign the
Refugee Convention, it is suggested by Costello and Foster that the failure to do so does
not “equate[] to a rejection of the norm of non-refoulement” as applied to refugees given

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 444 4 righ t s of r ef ug ee s ph y sica lly p r es en t

The second form of evidence of opinio juris relied upon by Lauterpacht and
Bethlehem, the unanimous adoption by the General Assembly of the 1967
Declaration on Territorial Asylum,716 does have a common substantive core.
Unfortunately for their project, the common core is limited to persons seeking
“asylum from persecution,”717 a group far smaller than that said by them to
benefit from the customary norm.718 More fundamentally, General Assembly
resolutions cannot be relied upon in abstracto as evidence of universal opinio
juris.719 As the ICJ observed in Nicaragua, the opinio juris is instead to be
deduced from “the attitude of . . . States towards certain General Assembly
resolutions [emphasis added].”720 The Court noted that while General
Assembly resolutions may be the basis for opinio juris,721 they have to be

the fact that many such states have agreed to treaties that require them to avoid refoule-
ment of other categories of persons: ibid. at 294–295. For reasons previously set out (see
text at note 680 ff.) this is not persuasive: the fact that a state has agreed not to send back
torture victims, for example, cannot be seen as evidence that it has also agreed not to send
back other categories of persons, including refugees.
716
UNGA Res. 2312 (XXII), adopted Dec. 14, 1967. 717 Ibid. at Art. 1(1) and Preamble.
718
Specifically, persons threatened with persecution are one of the three groups said by
Lauterpacht and Bethlehem to be entitled to protection against refoulement under a
general customary duty. The other two are persons who face “a real risk of torture or
cruel, inhuman or degrading treatment or punishment” and persons who face “a threat to
life, physical integrity, or liberty”: Lauterpacht and Bethlehem, “Non-refoulement,”
at [218].
719
There is a not-insignificant policy concern, noted by Thomas Franck. “The effect of [an]
enlarged concept of the lawmaking force of General Assembly resolutions may well be to
caution states to vote against ‘aspirational’ instruments if they do not intend to embrace
them totally and at once, regardless of circumstances. That would be unfortunate.
Aspirational resolutions have long occupied, however uncomfortably, a twilight zone
between ‘hard’ treaty law and the normative void. Even if passed with a degree of cynicism,
they may still have a bearing on the direction of normative evolution. By seeking to harden
this ‘soft’ law prematurely, however, the [ICJ] advises prudent states to vote against such
resolutions, or at least to abstain”: T. Franck, “Some Observations on the ICJ’s Procedural
and Substantive Innovations,” (1987) 81 American Journal of International Law 116
(Franck, “Innovations”), at 119.
720
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States),
Merits, [1986] ICJ Rep 14, at [188].
721
Some commentators take strong objection to this holding. “[A] customary rule arises out
of state practice; it is not necessarily to be found in UN resolutions and other majoritarian
political documents . . . If voting for a UN resolution means investing it with opinio juris,
then the latter has no independent content: one may simply apply the UN resolution as it is
and mislabel it ‘customary law’”: D’Amato, “Trashing,” at 102. This critique is overstated,
as the ICJ merely held that General Assembly resolutions could contribute to opinio juris;
consistent state practice must also be identified. D’Amato no doubt makes his charge in
view of the Court’s regrettable assumption (rather than interrogation) of consistent state
practice. The judgment is, however, clear that consistent state practice remains an essential
element of customary international law formation: Military and Paramilitary Activities in
and against Nicaragua (Nicaragua v. United States), Merits, [1986] ICJ Rep 14, at [184].
Accord ILA, General Custom, at 63: “Given that General Assembly resolutions are not, in

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 4.1 r ight to enter and remain in an asylum state 445

considered “in their totality.”722 A critical part of that totality is the fact that a
United Nations conference convened in 1977 with the specific intention of
transforming the 1967 declaration into binding law was a failure.723 Lapenna
notes that “the Committee met for [more than] four weeks, and only three of
the ten articles of the experts’ draft were discussed and voted on . . . [T]he
preoccupation of the majority of the states was that of safeguarding, to exas-
peration point, the sovereign right of a state to grant asylum.”724 There has
moreover been no subsequent effort to revisit the asylum convention pro-
ject.725 To rely on the 1967 asylum declaration as an indication of state parties’
acceptance of a comprehensive duty of non-refoulement – much less to isolate
the nineteen abstaining countries and deem their failure to protest to be
implied support – is disingenuous given the totality of the evidence of state
attitudes.
The more plausible basis for General Assembly-based opinio juris – ironic-
ally, not invoked by Lauterpacht and Bethlehem, but drawn upon by Costello
and Foster726 – is the line of subsequent General Assembly calls to respect the

principle, binding, something more is needed to establish [opinio juris] than a mere
affirmative vote (or failure to oppose a resolution adopted by consensus).”
722
Legality of the Threat or Use of Nuclear Weapons, [1996] ICJ Rep 226, at [71]. “[I]t is
necessary to look at its content and the conditions of its adoption; it is also necessary to see
whether an opinio juris exists as to its normative character. Or a series of resolutions may
show the gradual evolution of the opinio juris required for the establishment of a new
rule”: ibid. An extreme interpretation is that “[t]his decision goes much farther than its
predecessors in transforming [General Assembly resolutions] from exhortations or ‘soft
law’ principles into ‘hard law’ prescriptions, at least in the eyes of the Court . . . Every
resolution that purports to express a legal norm, even a ‘soft law’ exhortation or aspiration,
has the potential of being recognized by the Court as a binding and strictly enforceable
obligation, at least for those states which did not expressly dissent from it”: F. Morrison,
“Legal Issues in the Nicaragua Opinion,” (1987) 81 American Journal of International Law
160, at 161. As James Crawford helpfully reminds us, “[o]f course, the General Assembly is
not a legislature. Mostly its resolutions are only recommendations, and it has no capacity
to impose new legal obligations on states”: J. Crawford, The Creation of States in
International Law (2006) (Crawford, Creation of States), at 113.
723
See generally A. Grahl-Madsen, Territorial Asylum (1980).
724
E. Lapenna, “Territorial Asylum – Developments from 1961 to 1977 – Comments on the
Conference of Plenipotentiaries,” (1978) 16 AWR Bulletin 1, at 4.
725
A helpful contrast is provided by the facts of the Fisheries Jurisdiction Case (United
Kingdom v. Iceland), [1974] ICJ Rep 3, at [56], noting that the opinio juris contended for
by Iceland – a provision for special treatment of states overwhelmingly dependent on
fishing – initially “failed to obtain the majority required, but a resolution was adopted at
the 1958 Conference concerning the situation of countries or territories whose people are
overwhelmingly dependent upon coastal fisheries for their livelihood or economic
development.”
726
Costello and Foster, “Custom and Jus Cogens,” at 287–289. This argument has also been
made by the UNHCR. “The principle of non-refoulement has been consistently referred to
by the United Nations General Assembly in its various resolutions on the High
Commissioner’s Annual Report. The Office of UNHCR considers that these references

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 446 4 righ t s of r efug ee s ph y sica lly p r es en t

duty of non-refoulement, often said to apply to “asylum-seekers” as well as to

refugees.727 The regularity of the endorsement of non-refoulement in the
General Assembly728 is noteworthy and goes some distance in support of the
claim that there is opinio juris for a duty of non-refoulement owed to more than
just Convention refugees. On the other hand, it is important not to overstate
the import of these resolutions: the General Assembly has never declared there
to be a customary legal duty of non-refoulement;729 the closest it has come was
once to “welcome” a resolution of state parties to the Refugee Convention in
which it was said that “the core principle of non-refoulement . . . is embedded in
customary international law.”730 More commonly, however, the General
Assembly ties its advocacy of non-refoulement to a call to states to accede to,
or to honor duties under, specific treaties that contain a non-refoulement

to the principle of non-refoulement, taken together with the . . . Conclusions of the

[UNHCR] Executive Committee[,] constitute further evidence of its acceptance as a
basic normative principle”: UNHCR, “The Principle of Non-refoulement as a Norm of
Customary International Law: Response to the Questions Posed to UNHCR by the Federal
Constitutional Court of the Federal Republic of Germany in Cases 2 BvR 1938/93, 2 BvR
1953/93, 2 BvR 1954/93,” Jan. 31, 1994, at [43].
727
See e.g. the references to non-refoulement in resolutions adopted routinely by the General
Assembly upon receiving the High Commissioner’s annual report: UNGA Res. 38/121,
adopted Dec. 16, 1983; UNGA Res. 39/140, adopted Dec. 14, 1984; UNGA Res. 40/118,
adopted Dec. 13, 1985; UNGA Res. 41/124, adopted Dec. 4, 1986; UNGA Res. 42/109,
adopted Dec. 7, 1987; UNGA Res. 43/117, adopted Dec. 8, 1988; UNGA Res. 44/137,
adopted Dec. 15, 1989; UNGA Res. 45/140, adopted Dec. 14, 1990; UNGA Res. 46/106,
adopted Dec. 16, 1991; UNGA Res. 47/105, adopted Dec. 16, 1992; UNGA Res. 48/116,
adopted Dec. 20, 1993; UNGA Res. 49/169, adopted Dec. 23, 1994; UNGA Res. 50/152,
adopted Dec. 21, 1995; UNGA Res. 51/75, adopted Dec. 12, 1996; UNGA Res. 52/103,
adopted Dec. 12, 1997; UNGA Res. 53/125, adopted Dec. 9, 1998; UNGA Res. 54/146,
adopted Dec. 17, 1999; UNGA Res. 55/74, adopted Dec. 4, 2000; UNGA Res. 56/137,
adopted Dec. 19, 2001; UNGA Res. 57/187, adopted Dec. 18, 2002; UNGA Res. 58/151,
adopted Dec. 22, 2003; UNGA Res. 59/170, adopted Dec. 20, 2004; UNGA Res. 60/129,
adopted Dec. 16, 2005; UNGA Res. 61/137, adopted Dec. 19, 2006; UNGA Res. 62/124,
adopted Dec. 18, 2007; UNGA Res. 63/127, adopted Dec. 11, 2008; UNGA Res. 63/148,
adopted Dec. 18, 2008; UNGA Res. 64/127, adopted Dec. 16, 2009; UNGA Res. 65/194,
adopted Dec. 21, 2010; UNGA Res. 66/133, adopted Dec. 19, 2011; UNGA Res. 67/149,
adopted Dec. 20, 2012; UNGA Res. 68/141, adopted Dec. 18, 2013; UNGA Res. 69/152,
adopted Dec. 18, 2014; UNGA Res. 71/1, adopted Oct. 3, 2016; UNGA Res. 71/72, adopted
Dec. 19, 2016; and UNGA Res. 73/151, adopted Dec. 17, 2018.
728
There is moreover no pattern of substantial negative votes or abstentions of a kind that
would negate the opinio juris value of the resolutions: Legality of the Threat or Use of
Nuclear Weapons, [1996] ICJ Rep 226, at [71].
729
Costello and Foster are correct, of course, that the absence of specific language does not
render the resolutions irrelevant to the opinio juris claim: Costello and Foster, “Custom
and Jus Cogens,” at 287.
730
UNGA Res. 57/187 (2011), at [4]. Given the neutral “welcome” language, it surely
overstates the case to claim that “its endorsement by the General Assembly ensures that
it has the approval and agreement of all members of the United Nations [emphasis
added]”: Costello and Foster, “Custom and Jus Cogens,” at 289.

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 4.1 r i g h t t o en t er an d r emai n i n an asylu m state 447

duty731 – hardly the basis for arguing an agreed sense of obligation beyond
those treaties.
Costello and Foster bolster their opinio juris claim by drawing on the work
of the UNHCR’s Executive Committee, comprised mainly but not exclusively
of state parties to the Refugee Convention. They quite rightly note the regular-
ity of this body’s calls for observance of the duty of non-refoulement, though
the fact that the duty is never framed by the Executive Committee as a
customary international legal duty is surely noteworthy.732 More generally,
though, caution is warranted since the Executive Committee – while a clear
factor in identifying context relevant to interpretation of the Refugee
Convention733 – is not a body charged with undertaking interstate deliber-
ations on the scope of broad, global human rights obligations.
Most fundamentally, though, such resolutions are merely one factor to
consider in the assessment of opinio juris.734 They must be weighed up against
contrary indications,735 in particular those emanating from states not already
bound by treaty to avoid the refoulement of refugees.736 Apart from the failure
of (and failure to resuscitate over the ensuing forty years) the territorial asylum
initiative described above,737 the major contraindication is the persistent
refusal of states outside the Refugee Convention regime – predominantly in
Asia and the Middle East – to voice support for the view that they are legally
obligated to avoid the refoulement of refugees.738 Indeed, what is perhaps most

731
Costello and Foster, “Custom and Jus Cogens,” at 288.
732
Ibid. at 290–291. The authors inexplicably invoke the frequency of the Executive
Committee’s rather bland call on “all States to abide by their international obligations in
this respect” (ibid. at 291); this phrasing merely calls on states to honor whatever duties
they have, rather than suggesting that the Executive Committee believes there is some
broader duty arising by custom.
733
See Chapter 2.2.
734
“A resolution adopted by an international organization or at an intergovernmental
conference cannot, of itself, create a rule of customary international law”: International
Law Commission, “Identification of Customary International Law,” UN Doc. A/CN.4/
L.872, May 30, 2016, at draft conclusion 12(1).
735
“Caution is required when seeking through written texts, such as treaties and resolutions, to
identify rules of customary international law . . . [A]ll of the surrounding circumstances need
to be considered and weighed”: International Law Commission, “Third Report on
Identification of Customary International Law,” UN Doc. A/CN.4/682, Mar. 27, 2015, at [29].
736
“To begin with, over half the States concerned, whether acting unilaterally or conjointly,
were or shortly [afterward] became parties to the Geneva Convention, and were therefore
presumably, so far as they were concerned, acting actually or potentially in the application
of the Convention. From their action no inference could legitimately be drawn as to the
existence of a rule of customary international law in favour of the equidistance principle”:
North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal
Republic of Germany/Netherlands), [1969] ICJ Rep 3, at [76].
737
See text at note 723.
738
As much is impliedly conceded by the UNHCR, which observed that when it has made
representations to non-party states that they are bound to avoid the refoulement of

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 448 4 rights of r efugees physically present

striking is that many of these same states have legally bound themselves to
other non-refoulement obligations, in particular to avoid the return of those at
risk of torture.739 Their reluctance to agree to guarantee refugees access to the
same mechanism of protection is thus unlikely to be an accident.740 The
unwillingness of most states in Asia and the Middle East to accept a legal
obligation to avoid the refoulement of refugees is moreover borne out in the
facts that the Arab Refugee Convention is still not in force a quarter century
after its adoption741 and that Asian states have to date agreed to adopt only
non-binding initiatives in relation to refugee protection.742 While it is of
course true that such states have often agreed to admit refugees and
other human rights victims and have also negotiated context-specific arrange-
ments with UNHCR,743 there is no evidence that the openness they have

refugees, “the Governments approached have almost invariably reacted in a manner

indicating that they accept the principle of non-refoulement as a guide for their action
[emphasis added]”: UNHCR, “The Principle of Non-refoulement as a Norm of Customary
International Law: Response to the Questions Posed to UNHCR by the Federal
Constitutional Court of the Federal Republic of Germany in Cases 2 BvR 1938/93, 2
BvR 1953/93, 2 BvR 1954/93, Jan. 31, 1994,” at [5]. Accepting something as a “guide for
action” is a far cry from the required standard of accepting it as legally obligatory.
739
Participation in both the Torture Convention (containing an express duty of non-refoulement
in Art. 3) and the Civil and Political Covenant (containing an implied duty of non-refoulement
in relation to Arts. 6 and 7) is reasonably strong. 60% of Asia/Pacific states and 90% of Middle
Eastern/North African countries are parties to the Torture Convention, while 63% of Asia/
Pacific countries and 81% of Middle Eastern/North African nations are parties to the Civil and
Political Covenant: Office of the High Commissioner on Human Rights (OHCHR), https://
treaties.un.org, accessed Dec. 21, 2020. Calculations for each category were based on
OHCHR’s classifications for the MENA and Asia-Pacific regions, with two modifications:
Central and Western Asian nations were also referenced, and Iran and Afghanistan were
counted as falling in the MENA region rather than in the Asia-Pacific.
740
Fewer than half of the states in each region have accepted a treaty-based duty of non-
refoulement vis-à-vis refugees. Only about 40 percent of Asian and Middle Eastern/North
African states have acceded to either the Refugee Convention or Protocol: UNHCR, “State
Parties to the 1951 Convention relating to the Status of Refugees and the 1967 Protocol,”
www.unhcr.org, accessed Feb. 5, 2020. Calculations for each category were based on
OHCHR’s classifications for the MENA and Asia-Pacific regions, with two modifications:
Central and Western Asian nations were also referenced, and Iran and Afghanistan were
counted as falling in the MENA region rather than in the Asia-Pacific. This refusal
formally to be bound by the duty to avoid the refoulement of refugees is moreover long-
standing: see Hailbronner, “Wishful Legal Thinking?,” at 128–129.
741
See Chapter 1.5.3 at note 356.
742
See Chapter 1.5.3 at note 369. Indeed, the only recent non-binding pact is the sub-regional
ASEAN Declaration (see Chapter 1.5.3 at note 357). The single pan-Asian statement has
not generated a binding treaty more than fifty years after its adoption: Asian-African Legal
Consultative Organization, “Bangkok Principles on the Status and Treatment of
Refugees,” adopted Dec. 31, 1966.
743
Reliance is sometimes placed on express acknowledgments of the duty of non-refoulement
in bilateral arrangements between regional states and the UNHCR. While cooperation
agreements can be a source of protection for refugees (see generally M. Zieck, UNHCR’s

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 4.1 r i g h t t o en t er an d r emai n i n an asylu m state 449

shown – often partial, and usually highly conditional744 – has been influenced
by a sense of legal obligation745 (rather than, for example, following simply
from political or economic calculus, social or cultural affiliation, or a sense of
moral responsibility).746 A former Chief Justice of India, for example,
affirmed that while courts in his country “have stepped in” on occasion to
prevent refugee deportations, “most often these are ad hoc orders. And an ad
hoc order certainly does not advance the law. It does not form part of the law,
and it certainly does not make the area clear.”747 As the ICJ noted in the North

Worldwide Presence in the Field: A Legal Analysis of UNHCR’s Cooperation Agreements

(2006), at 322), they are not really a dependable indicator of opinio juris in relation to non-
refoulement. For example, despite having executed such an agreement Jordan simply
closed its borders to Palestinian and Iranian Kurdish refugees in 2006 on the basis of
capacity and concerns that the refugees would not depart even when the risk abated:
Human Rights Watch, “Nowhere to Flee: The Perilous Situation of Palestinians in Iraq,”
Sept. 2006 (Human Rights Watch, “Nowhere to Flee”), at 38.
744
In the case of Lebanon, for example, a government representative explained to a UN
human rights supervisory committee that “[t]he direct and indirect losses incurred by the
Lebanese economy had been estimated at US$13 billion. The unemployment rate had
risen and investment indicators had declined. Repeated terrorist attacks on the borders
and within the country had seriously challenged the security forces. The Government had
therefore decided in late 2014 to regulate the entry of Syrians into Lebanon with a view to
preventing the collapse of the host country. Syrians were not prohibited from entering
Lebanon. They were admitted if they sought temporary residence in accordance with the
existing legislation. However, if they sought permanent residence as refugees or immi-
grants, each case was studied separately and an appropriate decision was taken”: Statement
of Ms. Assaker to the UN Committee on the Elimination of Racial Discrimination, UN
Doc. CERD/C/SR.2463, Aug. 11, 2016, at [5], reported in M. Janmyr, “No Country of
Asylum: ‘Legitimizing’ Lebanon’s Rejection of the 1951 Refugee Convention,” (2017)
29(3) International Journal of Refugee Law 438, at 454. See generally M. Kagan, “The
Beleagured Gatekeeper: Protection Challenges Posed by UNHCR Refugee Status
Determination,” (2006) 18(2) International Journal of Refugee Law 1.
745
“[T]he general practice . . . must be undertaken with a sense of legal right or obligation”:
International Law Commission, “Identification of Customary International Law,” UN
Doc. A/CN.4/L.872, May 30, 2016, at draft conclusion 9(1).
746
For this reason, it is insufficient to say simply that the fact that “[s]ome specially affected
States [that] have acceded to neither the 1951 Convention nor the 1967 Protocol . . . have
hosted large numbers of refugees for many years indicates that their behaviour is in line
with the principle of non-refoulement” (Kälin, “Article 33, para. 1,” at 1343–1344. While
self-interest can coexist with a sense of legal obligation (see G. Norman and J. Trachtman,
“The Customary International Law Game,” (2005) 99 American Journal of International
Law 541, at 571), proponents of a customary norm must be able to identify some evidence
that relevant and consistent state actions are taken out of a sense of legal obligation.
747
J. Verma, “Inaugural Address,” in UNHCR and SAARCLAW eds., Seminar Report:
Refugees in the SAARC Region: Building a Legal Framework (1997), at 13–18. Accord
P. Saxena, “Creating Legal Space for Refugees in India: The Milestones Crossed and the
Roadmap for the Future,” (2007) 19(2) International Journal of Refugee Law 246, at 255:
“A plethora of unreported cases demonstrates that the courts have treated these matters on
purely technical grounds; no pronouncements of law are made nor are any general
guidelines laid. This explains why the majority of these cases do not find a place in law

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 450 4 ri g h t s of r e f u g e es ph y s i c a l l y p r e s e nt

Sea Continental Shelf Cases, such actions do not support a finding of opinio
juris.748

4.1.6.2 Consistent State Practice?

Even if opinio juris could be located, the next question that must be
addressed is whether there is evidence of consistent and relatively uniform
state practice that aligns with the putative norm (the second essential
element for establishment of a customary law).749 Sadly, there is in fact
very significant empirical evidence that does exactly the opposite. As the
analysis earlier in the chapter makes clear, there is a long-standing and
extensive pattern of refoulement across the world, including complete

reports. Interim non-speaking orders may provide relief in individual cases, but their
contribution to jurisprudence is negligible, even negative at times. Ranabir Samaddar has
agreed that the judicial reasoning has been mainly humanitarian and not rights based,
dispensing kindness and not justice, and that the Court has nothing to say on the ‘refugee-
situation.’” See also O. Chaudhary, “Turning Back: An Assessment of Non-refoulement
under Indian Law,” (2004) 39 Economic and Political Weekly 3257. But see
V. Vijayakumar, “Judicial Responses to Refugee Protection in India,” (2000) 12(2)
International Journal of Refugee Law 235, at 235–236, arguing that Indian court decisions
have provided “a series of rights to the millions of refugees who had to cross the
internationally recognized borders and continue to stay in India.”
748
“As regards those States, on the other hand, which were not, and have not become parties
to the Convention, the basis of their action can only be problematical and must remain
entirely speculative. Clearly, they were not applying the Convention. But from that no
inference could justifiably be drawn that they believed themselves to be applying a
mandatory rule of customary international law. There is not a shred of evidence that
they did and . . . there is no lack of other reasons for using the equidistance method, so that
acting, or agreeing to act in a certain way, does not of itself demonstrate anything of a
juridical nature . . . The frequency, or even habitual character of the acts is not itself
enough”: North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark;
Federal Republic of Germany/Netherlands), [1969] ICJ Rep 3, at [76]–[77].
749
Hudson’s classic definition speaks of four elements, including “(a) concordant practice by
a number of States with reference to a type of situation falling within the domain of
international relations; (b) continuation or repetition of the practice over a considerable
period of time; (c) conception that the practice is required by, or consistent with, prevail-
ing international law; and (d) general acquiescence in the practice by other States”:
M. Hudson, [1950] 2 Year Book of the International Law Commission 26, UN Doc. A/
CN.4/SER.A/1950/Add.1. Elements (a), (b), and (d) have converged over time in the
requirement to demonstrate that “the conduct of States should, in general, be consistent
with [the putative norm]”: Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States), Merits, [1986] ICJ Rep 14, at [186]. Yet “[i]t is not to be
expected that in the practice of States the application of the rules in question should have
been perfect, in the sense that States should have refrained, with complete consistency,
from [actions prohibited by the putative norm]”: ibid. at [185]. Hudson’s element (c)
remains a second and independent criterion for recognition of a rule of customary
international law. “It is of course axiomatic that the material of customary international
law is to be looked for primarily in the actual practice and opinio juris of States”:
Continental Shelf (Libyan Arab Jamahiriya v. Malta), Judgment, [1985] ICJ Rep 13, at [27].

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 4.1 right to enter a nd remain in an asylum state 451

border closures;750 the erection of barriers to entry;751 unilateral, bilateral,

and multilateral interdiction efforts;752 summary ejection of refugees from
asylum state territory, both as formal policy and informally;753 refusal of
access to protection procedures;754 removal of refugees in consequence of
practical deficiencies in processing systems;755 thinly disguised refoulement
under the guise of “voluntary” repatriation;756 the creation of protection
gaps by adoption of non-entrée policies, including visa requirements, first
country of arrival rules, safe third country systems, and designation of
countries of origin as presumptively safe;757 and formal excision of terri-
tory so as to avoid protection obligations.758
There is, in short, pervasive state practice that denies in one way or another
the right to be protected against refoulement; indeed, as the informal survey at
the start of this chapter makes clear, in recent years nearly sixty countries have
participated in acts amounting to refoulement.759 And while this pattern of
disrespect is tragically global in scale, for purposes of customary international
lawmaking it is especially noteworthy that fully one-quarter of the states that
have not signed the Refugee Convention or Protocol have engaged in the
refoulement of refugees.760 How, then, can it be argued that there is relatively
consistent state practice – especially in non-party states – that conforms to the
putative universal duty to protect refugees and other human rights victims
against refoulement?
First, some argue that the depth and consistency of state practice required
for the establishment of customary international law should not be overstated.
So long as respect for non-refoulement remains the norm, it is suggested that
750 751 752
See text at note 10 ff. See text at note 22 ff. See text at note 29 ff.
753 754 755
See text at note 53 ff. See text at note 74 ff. See text at note 79 ff.
756 757 758
See text at note 84 ff. See text at note 92 ff. See text at note 128 ff.
759
See text at notes 10–131. This evidence of non-conforming state practice is moreover
restricted to the comparatively well-protected category of “refugees”; it is likely that the
refoulement of the broader categories of human rights victims claimed by Lauterpacht/
Bethlehem and Costello/Foster to be part of the beneficiary class of the customary norm is
even more pervasive.
760
These include Bangladesh, Indonesia, Jordan, Libya, Malaysia, Nepal, Pakistan, Saudi
Arabia, Thailand, Turkey (being effectively a non-party due to its geographical reserva-
tion: see Chapter 1.4.3), and Uzbekistan: See text at notes 10–131. Costello and Foster
seek to downplay the significance of discordant practice by these countries, arguing that it
is not clear that they meet the definition of “specially affected” states said to be of
particular importance by the ICJ in North Sea Continental Shelf Cases (Federal Republic
of Germany/Denmark; Federal Republic of Germany/Netherlands), [1969] ICJ Rep 3, at
[74]. In truth, each of the possible measures of “specially affected” they propose – refugee
hosting in “gross terms, per capita, or relative to GDP” (Costello and Foster, “Custom and
Jus Cogens,” at 292) – would result in most of the states named here being deemed
specially affected by refugee arrivals. They also question the general notion of “quantita-
tive assessment” as the basis for being “specially affected” altogether: ibid. But see e.g.
Kälin, “Article 33, para. 1,” at 1343, n. 84 (in which “specially affected” states analyzed are
those “among the top 10 refugee hosting countries”).

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 452 4 ri g ht s o f re f u g e e s p hy s i c a l l y p r e s e n t

the state practice requirement is met. Second, and impliedly conceding the
inadequacy of an empirical record of concordant practice, there is authority for
the view that so long as there is an effort to justify acts of refoulement as
permissible exceptions to the alleged norm, practice that is on its face violative
of the norm is in fact supportive of it. And third and most significantly, it is
claimed that while state practice is required, real state action on the ground
may be overcome by alternative “practice” in the form of verbal commitments
to protect refugees against refoulement. Each of these claims fails in the context
of the putative customary duty of non-refoulement.
First, what of the view that the depth and consistency of state practice required
for the establishment of customary international law should not be overstated?
There has certainly been a trend in the ICJ jurisprudence to soften the standard of
uniformity required. While the 1950 Asylum decision spoke of “constant and
uniform usage,”761 the 1969 North Sea Continental Shelf cases stated the test as
“extensive and virtually uniform”762 practice, and the Nicaragua decision of 1986
determined that “absolutely rigorous conformity”763 is not required. It is thus easy
to see why scholars are disinclined to set an overly demanding threshold of
consistency of state practice. Crawford, for example, opined that consistency of
state practice “is very much a matter of appreciation.”764
That having been said, there is little doubt that clearly predominant global
practice remains a requirement for the establishment of a customary legal duty.
The ICJ’s exhortation in the Asylum decision that “fluctuation and discrep-
ancy”765 in practice undermines the argument for custom is a helpful, and
surely not overstated, indicator of the circumstances in which consensus
through action is simply not present.766 While those seeking to downplay the
relevance of practice often rely on the Court’s statement in Nicaragua that
custom can arise despite “not infrequent”767 inconsistent practice, this obiter
dictum768 must be balanced against the same judgment’s insistence that a
761
Asylum Case (Colombia v. Peru), [1950] ICJ Rep 266, at 276.
762
North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal
Republic of Germany/Netherlands), [1969] ICJ Rep 3, at [74].
763
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States),
Merits, [1986] ICJ Rep 14, at [186].
764
Crawford, Brownlie’s Public International Law, at 24. Hersch Lauterpacht cautions, however,
that “because of the underlying requirement of consent, the condition of constancy and
uniformity is liable on occasion to be interpreted with some rigidity when there is a question
of ascertaining a customary rule of general validity”: E. Lauterpacht ed., International Law: The
Collected Papers of Hersch Lauterpacht 62 (1970).
765
Asylum Case (Colombia v. Peru), [1950] ICJ Rep 266, at 277.
766
“State practice, the material element, provides the concrete evidence of normative convic-
tion”: Kelly, “Twilight,” at 500.
767
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States),
Merits, [1986] ICJ Rep 14, at [202].
768
In the same paragraph, the Court found that “[t]he existence in the opinio juris of States of
the principle of non-intervention is backed by established and substantial practice”: ibid.

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 4.1 right to enter and remai n in an asylum state 453

“settled practice”769 be identified. More specifically, as Villiger writes, state

practice for a customary norm binding all states must at least be “general” in
the sense “that common and widespread practice among many States is
required. While universal practice is not necessary, practice should be ‘repre-
sentative,’ at least of all major political and socio-economic systems.”770
Assessed against even this relatively low benchmark, the case for identification
of consistent state practice in line with a broadly inclusive duty of non-
refoulement fails. To suggest that there is anything approaching a “settled
practice” of non-refoulement defies the facts.771
Nor is the case for a settled practice in line with the duty of non-refoulement
assisted by a second argument, namely that breaches can sometimes support a
finding of consistent state practice.772 The ICJ’s Nicaragua judgment, generally
regarded as the most authoritative statement of this rule,773 is at pains carefully
to explain the basis for its holding that “instances of State conduct inconsistent
with a given rule . . . treated as breaches of that rule”774 contribute to a finding
of consistent state practice in support of the norm:
If a State acts in a way prima facie incompatible with a recognized rule, but
defends its conduct by appealing to exceptions or justifications contained
within the rule itself, then whether or not the State’s conduct is in fact
justifiable on that basis, the significance of that attitude is to confirm rather
than to weaken the rule.775

In that case, the question was whether instances of foreign intervention in

support of an internal opposition group espousing “worthy . . . political or
moral values”776 – at least prima facie in breach of the putative norm of non-
intervention – had been defended on the basis of justifications or exceptions
said to be part of the putative norm itself. The manner in which the argument
was rejected is instructive:
[T]he Court finds that States have not justified their conduct by reference
to a new right of intervention or a new exception to the principle of its
prohibition. The United States authorities have on some occasions clearly
stated their grounds for intervening in the affairs of a foreign State for
769
Ibid. at [207]. 770 Villiger, Interrelation of Sources, at 29.
771
In recent years, at least sixty states have participated in acts amounting to refoulement: see
text at note 759. Moreover one-quarter of non-party states have engaged in refoulement:
see note 160.
772
It is of course correct that the existence of a customary norm “does not depend on the
absence of any violation”: Kälin, “Article 33, para. 1,” at 1345. But such violations must be
comparatively infrequent, and certainly not as pervasive as the ongoing pattern of
breaches of the duty of non-refoulement in all parts of the world summarized here.
773
Villiger, Interrelation of Sources, at 44.
774
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States),
Merits, [1986] ICJ Rep 14, at [186].
775
Ibid. 776 Ibid. at [206].

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reasons concerned with, for example, the domestic policies of that country,
its ideology, the level of its armaments, or the direction of its foreign
policy. But these were statements of international policy, and not an
assertion of rules of existing international law. In particular, as regards
the conduct towards Nicaragua which is the subject of the present case, the
United States has not claimed that its intervention, which it justified in this
way on the political level, was also justified on the legal level, alleging the
exercise of a new right of intervention.777

Much the same concerns arise from an examination of state practice of

refoulement. To begin with, many instances of refoulement appear not to be
justified at all – they simply occur.778 And where an effort to justify refoulement
is made, states tend to offer only blunt and unsubstantiated assertions that
those seeking protection are not refugees or that the political cost of protection
is too high.779 There is, in short, rarely an effort made to justify turn-backs and
other acts of refoulement by reference to the norm of non-refoulement itself,
much less by arguing the applicability of the internal limitations to that duty.780

777
Ibid. at [207]–[208].
778
For example, Uganda provided no explanation for luring Rwandan refugees into trucks
and returning them to the border: See text at note 55. Egypt summarily sent Sudanese
refugees back to Sudan in 2007, as well as Eritrean refugees to Eritrea in 2008 with no
explanation or justification given: Amnesty International, “Egypt/Israel: Fear For Safety,”
Doc. MED 15/038/2008/UA/241/08, Sept. 3, 2008. And US President Bush simply
declared, “We will turn back any refugees that attempt to reach our shore, and that
message needs to be very clear as well to the Haitian people”: Human Rights Watch,
“US: Don’t Turn Away Haitian Refugees,” Feb. 26, 2004. As Kelly observes, “[n]ations do
not regularly explain the legal basis of their actions, nor is it clear how to determine the
normative belief of hundreds of states, many of whom have never had the opportunity or
need to express their opinion on a particular principle”: Kelly, “Twilight,” at 470.
779
For example, Greece has asserted that whole groups of persons seeking protection are not
refugees, treating them simply as unauthorized migrants: USCRI, World Refugee Survey
2008; see also S. Troller, “Greece does EU’s Migration Dirty Work,” Guardian (Jan. 25,
2009). Other examples of unsubstantiated categorical reclassification of refugees to avoid
the duty of non-refoulement include Spain’s summary classification of refugees arriving at
Ceuta and Melilla as “illegal migrants” subject to removal (See text at note 77); China’s
claim that all North Korean refugees are merely “food migrants” or “defectors” who
should be returned (see note 61); and Burundi’s reclassification of persons found to be
refugees by UNHCR as mere migrants subject to deportation (see note 62). Broad-brush
allegations that protection would not be considered because the costs or risks were deemed
too high include Niger’s summary removal of Nigerian refugees after attacks by Boko
Haram (See text at note 66); and the return to China of Uighur and other refugees after
pressure was put on Cambodia, Kazakhstan, Nepal, and Thailand (See text at notes
59–60).
780
Lauterpacht and Bethlehem argue that the only internal limitation to the putative custom-
ary norm is where a state demonstrates “[o]verriding reasons of national security or safety
. . . in circumstances in which the threat of persecution does not equate to and would not
be regarded as being on par with a danger of torture or cruel, inhuman or degrading
treatment or punishment and would not come within the scope of other non-derogable

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 4.1 right to enter and remai n in an asylum state 455

As such, inconsistent practice is just that – inconsistent, and hence at odds with the
assertion of a customary legal duty. There is in any event an unanswered founda-
tional question: while non-conforming conduct might be treated as a breach of the
rule rather than undermining it if routinely treated as such,781 there must still have
been some moment when the practice of non-refoulement met the foundational
standard of being consistently aligned with the putative norm. Yet no advocate of
ignoring inconsistent practice has ever identified the moment at which the requis-
ite respect for non-refoulement existed, allowing the norm to crystallize.
This analysis leaves us, then, with one final argument in support of state
practice sufficient to ground a broad duty of non-refoulement in customary
international law. The essence of the argument is that a very broad reading of
“state practice” is justified under which words alone may amount to “practice.”
The proponents of this position look to many of the same statements relied upon
to show opinio juris as the relevant practice in support of the norm, and thereby
arrive at the conclusion that consistent state “practice” can be located despite the
evidence of non-conforming “practice on the ground” identified above.782
It is in regard to this issue that the rules of customary law formation are
most contested.783 As Kammerhofer explains, there is a tendency among many
academics to define “practice” in a way that obviates the distinction between
practice and opinio juris:

Behind the apparent dichotomy of “acts” and “statements” lies a more

important distinction: that between one argument that sees practice as the
exercise of the right claimed and the other that includes the claims

customary principles of human rights. The application of these exceptions is conditional

on the strict compliance with principles of due process of law and the requirements that all
reasonable steps must first be taken to secure the admission of the individual concerned to
a safe third country”: Lauterpacht and Bethlehem, “Non-refoulement,” at [253].
781
It is sadly not accurate to suggest that “acts of refoulement are virtually always condemned
by States” (UNHCR, Intervention before the Court of Final Appeal of the Hong Kong
Special Administrative Region in the case between C, KMF, BF (Applicants) and Director
of Immigration, Secretary for Security (Respondents), Civil Appeals Nos. 18, 19, and 20 of
2011, Jan. 31, 2013, at [67]). To the contrary, specific condemnation by other states or
interstate bodies is rare; most engagement with refoulement is at the level of vague
generality only.
782
Yet “[w]hen seeking to identify the existence of a rule of customary international law,
evidence of the relevant practice should . . . generally not serve as evidence of opinio juris
as well: such ‘double counting’ (repeat referencing) is to be avoided”: International Law
Commission, “Third Report on Identification of Customary International Law,” UN Doc.
A/CN.4/682, Mar. 27, 2015, at [15].
783
Examples of the classic opposition are those who assert that only physical acts count as
practice, e.g. A. D’Amato, The Concept of Custom in International Law (1971); and,
arguing that custom may be based on verbal acts alone, B. Cheng, “Custom: The Future
of General State Practice in a Divided World,” in R. Macdonald and D. Johnston eds., The
Structure and Process of International Law: Essays in Legal Philosophy Doctrine and Theory
532 (1983).

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 456 4 ri g ht s of re f u g e es p hy s i c a l l y p r e s e n t

themselves and thus blurs the border between the concept of “state
practice” and “opinio juris.”784
This is indeed the nub of the controversy: despite the continued insistence of
the ICJ that there are two, not one, essential elements to the formation of
customary international law,785 there seems to be a determined academic effort
to downplay that requirement. The Final Report of the International Law
Association (ILA) Committee on Formation of Customary (General)
International Law786 provides a classic example of this propensity to confuse:
The Court has not in fact said in so many words that just because there are
(allegedly) distinct elements in customary law the same conduct cannot
manifest both. It is in fact often difficult or even impossible to disentangle
the two elements.787
The language used is quite extraordinary: note that the ILA does not say that
the International Court of Justice has held that both elements of custom may be
manifested by the same, presumably purely verbal, evidence, but rather simply
that it “has not . . . said in so many words” that it cannot!
This cautious, if convoluted, framing is to some extent understandable given
the actual state of ICJ jurisprudence. The decision in Nicaragua, while often
cited as the leading source of the notion that words alone can constitute state
practice,788 did not actually reach that conclusion. The focus of the dispute was
whether there was a customary norm prohibiting the threat or use of force
against the territorial integrity or political independence of a state that parallels
the treaty-based rule in Art. 2(4) of the UN Charter.789 The Court was insistent
that a customary norm could arise only upon proof of “the actual practice and
opinio juris of States.”790 For good measure, it added:
The mere fact that States declare their recognition of certain rules is not
sufficient for the Court to consider these as being part of customary
international law . . . [I]n the field of customary international law, the
shared view of the Parties as to the content of what they regard as the rule is
not enough. The Court must satisfy itself that the existence of the rule in
the opinio juris of States is confirmed by practice.791
784
Kammerhofer, “Uncertainty,” at 525. 785 See text at note 698.
786
ILA, “General Custom.” 787 Ibid. at [10(c)].
788
See e.g. Franck, “Innovations,” at 118–119; S. Donaghue, “Normative Habits, Genuine
Beliefs and Evolving Law: Nicaragua and the Theory of Customary International Law,”
(1995) 16 Australian Year Book of International Law 327 (Donaghue, “Normative
Habits”), at 338; Villiger, Interrelation of Sources, at 20.
789
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States),
Merits, [1986] ICJ Rep 14, at [188].
790
Ibid. at [183], quoting from Continental Shelf (Libyan Arab Jamahiriya v. Malta),
Judgment, [1985] ICJ Rep 13, at [27].
791
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States),
Merits, [1986] ICJ Rep 14, at [184].

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 4.1 ri ght to enter and remain in an asylum state 457

The common confusion about just what the Court decided arises from the fact
that it took what can only be described as a fairly slipshod approach to the
assessment of state practice before focusing on the issue of opinio juris.792
Implicit in its analysis that “[i]t is not to be expected that in the practice of
States the application of the rules in question should have been perfect,”793 that
“rigorous conformity”794 is too high a standard, and that prima facie violations
justified by reference to the rule itself “confirm rather than weaken the rule”795 is
an assumption – admittedly, an empirically suspect assumption796 – that one
could reasonably assume evidence of relatively consistent state practice of non-
intervention other than as authorized by the Charter.797 Because the parties
chose not to contest the issue of state practice, the Court understandably focused
its analysis on the opinio juris question, finding (as previously noted)798 that a
wide-ranging set of verbal acts could give rise to opinio juris.799
The Court is, however, explicit that these verbal acts are approved strictly as
forms of opinio juris, not state practice.800 As such, and despite the failure of
the Court clearly to interrogate the state practice dimension of the claim, it is
disingenuous to suggest that its lack of precision in this regard amounts to an
endorsement of a new theory of customary international law formation in
which state practice is rendered virtually identical to opinio juris. If this had
been the Court’s intention, why would it have been at such pains to confirm the
traditional two-part test and address the sufficiency of imperfect state practice?
Nor is it the case that the International Law Commission has sought to roll
back the International Court of Justice’s affirmation that words should not be

792
“In Nicaragua . . . the ICJ discussed the requirement of state practice, but neither analyzed,
nor cited examples of this element”: Kelly, “Twilight,” at 476, n. 112. See also Franck,
“Innovations,” at 118–119, and F. Kirgis, “Custom on a Sliding Scale,” (1987) 81 American
Journal of International Law 146 (Kirgis, “Sliding Scale”), at 147.
793
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States),
Merits, [1986] ICJ Rep 14, at [186].
794
Ibid. 795 Ibid. 796 Franck, “Innovations,” at 118–119; Kirgis, “Sliding Scale,” at 147.
797
Having found there to be “abstention” from the use of force other than as authorized by
the UN Charter, the Court turned to the issue of opinio juris: Military and Paramilitary
Activities in and against Nicaragua (Nicaragua v. United States), Merits, [1986] ICJ Rep 14,
at [188].
798
See text at note 704.
799
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States),
Merits, [1986] ICJ Rep 14, at [188]–[190].
800
“The Court has however to be satisfied that there exists in customary international law an
opinio juris as to the binding character of such abstention. This opinio juris may, though with
all due caution, be deduced from, inter alia, the attitude of the Parties and the attitude of States
towards certain General Assembly resolutions . . . It would therefore seem apparent that the
attitude referred to expresses an opinio juris respecting such rules (or set of rules), to be
thenceforth treated separately from the provisions, especially those of an institutional kind, to
which it is subject on the treaty-law plane of the Charter”: ibid. at [188].

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 458 4 ri g ht s of re f u g e e s p hy s i c a l l y p r e s e n t

double-counted as both opinio juris and practice.801 In its 2016 report on

identification of customary international law,802 the Commission did agree
that relevant practice may include “both physical and verbal acts.”803 Critically,
however, in its list of relevant examples of practice it cites only three purely
verbal forms of practice – diplomatic acts and correspondence, legislative and
administrative acts, and decisions of national courts804 – none of which is
remotely controversial. Beyond this short list, however, practice is not purely
verbal, but consists rather of executive conduct, including operational conduct
on the ground; conduct in connection with resolutions adopted by an inter-
national organization or at an intergovernmental conference; and conduct in
connection with treaties.805
It follows that the notion that verbiage without concordant state practice
gives rise to customary law is at best de lege ferenda rather than settled law.
Indeed, the approach might well be seen to amount to a disingenuous circum-
vention of the requirements of lawmaking by treaty.806 Customary law is not
simply a matter of words, wherever spoken and however frequently recited:
custom can evolve only through practice in which governments effectively
agree to be bound through the medium of their conduct. To treat words not
simply as opinio juris807 but as binding in and of themselves would, as Kelly
rightly asserts, be to “constitute a new legislative form of lawmaking, not
customary international law based on state behavior accepted as law.”808
Proponents of an exaggerated definition of state “practice” deny the most
elementary distinction between treaties and custom: custom is not simply
about words, but is a function of what is happening in the real world;809 it is
801
But see Costello and Foster, “Custom and Jus Cogens,” at 298: “As is evident from [the ILC]
list, some factors are considered relevant both to establishing opinio juris and state practice.”
802
International Law Commission, “Identification of Customary International Law,” UN
Doc. A/CN.4/L.872, May 30, 2016.
803
Ibid. at Draft conclusion 6(1). 804 Ibid. at Draft conclusion 6(2).
805
Ibid. at Draft conclusion 6(2).
806
“[T]hat customary international law furnishes a means to develop universal norms when
actual agreement is difficult or inconvenient cannot justify norms when there is no
genuine acceptance”: Kelly, “Twilight,” at 537.
807
See text at note 701 ff. 808 Kelly, “Twilight,” at 486.
809
The International Court of Justice has, however, taken the position that “[w]hen it is the
intention of the State making [a] declaration that it should become bound according to its
terms, that intention confers on the declaration the character of a legal undertaking, the State
being thenceforth legally required to follow a course of conduct consistent with that declar-
ation. An undertaking of this kind, if given publicly, and with an intent to be bound, even
though not made within the context of international negotiations, is binding”: Nuclear Tests
(Australia v. France), [1974] ICJ Rep 253, at 267; endorsed in Military and Paramilitary
Activities in and against Nicaragua (Nicaragua v. United States), Merits, [1986] ICJ Rep 14, at
[39]–[40]. It seems clearly to have been the Court’s intention to constrain this doctrine;
however, the same result could readily have been avoided by reliance on such general
principles of law as acquiescence or estoppel. A WTO panel has appropriately urged caution
in the application of this approach, noting that “[a]ttributing international legal significance to

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 4.1 r ight to enter and remain in an asylum state 459

about negotiation via practice.810 The effective obliteration of the consistent

practice requirement advocated by many scholars is thus conceptually
flawed.811 As Wolfke has acerbically observed, “repeated verbal acts are also
acts of conduct . . . but only to customs of making such declarations . . . and not
to customs of the conduct described in the content of the verbal acts.”812
The claim that there is today a customary international legal duty pursuant
to which all refugees, whether in a state party or not, are entitled to protection
against refoulement is thus not sound.813 While there is growing evidence of
opinio juris, it remains far from conclusive and is not, in any event, matched by
concordant and generalized state practice as customary lawmaking requires.

4.1.6.3 Other Duties of Non-refoulement

While beyond the scope of this book, the discussion above has noted814 that
evolution in treaties outside international refugee law provides important
support to the Refugee Convention’s duty of non-refoulement as a means of
facilitating entry of at least those at-risk persons able to exit their own state.815
Art. 3(1) of the United Nations Convention against Torture, for example,
explicitly prohibits the return of a person to another state where there are
substantial grounds to perceive a risk of subjection to torture;816 Art. 16(1) of
unilateral statements made by a State should not be done lightly and should be subject to strict
conditions”: WTO Panel Report, United States – Sections 301–310 of the Trade Act of 1974,
Dec. No. WT/DS152/R (WTO Panel, Jan. 27, 2000), at [7.118].
810
“The misunderstanding resulting from such a broad interpretation [of state practice]
arises from the fact that it neglects the very essence of every kind of custom, which for
centuries has been based upon material deeds and not words”: Wolfke, Custom, at 41–42.
811
“The strategic advantage of elevating customary international law to a rule of recognition
is that it allows the theorist to redefine the requirements of customary international law
from empirical law to a preferred process while retaining its formal authority”: Kelly,
“Twilight,” at 494.
812
Wolfke, Custom, at 42.
813
The fact that an increasing number of states guarantee non-refoulement of some kind in
their domestic laws may at some point give rise to at least a lowest common denominator
claim based on a new general principle of law: see Lauterpacht and Bethlehem, “Non-
refoulement,” at Annex 2.2, indicating that at the time of writing some 125 states had
incorporated some aspect of a duty of non-refoulement in their domestic law.
814
See text at notes 681–686.
815
See Lauterpacht and Bethlehem, “Non-refoulement,” at [5]–[9], [220]–[253]. See generally
Chetail, International Migration Law, at 194–199.
816
“The Committee recalls that the prohibition of torture, as defined in Article 1 of the
Convention, is absolute”: UN Committee Against Torture, “General Comment No. 4:
Implementation of Article 3 of the Convention in the Context of Article 22,” UN Doc.
CAT/C/GC/4, adopted Sept. 4, 2018, at [8]. As regards a risk of “cruel, inhuman or
degrading treatment or punishment (ill-treatment), which do not amount to torture as
defined in Article 1 of the Convention . . . States parties should consider whether other
forms of ill-treatment that a person facing deportation is at risk of experiencing could
likely change so as to constitute torture before making an assessment on each case relating
to the principle of non-refoulement”: ibid. at [15]–[16]. UNHCR has taken the view that

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 460 4 r ights of r efugees p hysically present

the Convention on Enforced Disappearance does the same for those who face
the risk of being “disappeared,”817 and the Convention on the Rights of the
Child may be understood to prohibit the removal of a child in circumstances
where that is not in the child’s best interests.818 Arts. 6 and 7 of the
International Covenant on Civil and Political Rights, which respectively
require state parties to avert the arbitrary deprivation of life and to ensure
that nobody is subject to cruel, inhuman or degrading treatment or punish-
ment, have similarly been interpreted by the Human Rights Committee819 to
prohibit removal of individuals from a state’s territory to face a relevant risk:

[T]he article 2 obligation requiring that States Parties respect and ensure
the Covenant rights for all persons in their territory and all persons under
their control entails an obligation not to extradite, deport, expel or other-
wise remove a person from their territory, where there are substantial
grounds for believing that there is a real risk of irreparable harm, such as
that contemplated by articles 6 and 7 of the Covenant, either in the country
to which removal is to be effected or in any country to which the person
may subsequently be removed. The relevant judicial and administrative
authorities should be made aware of the need to ensure compliance with
the Covenant obligations in such matters.820

the Torture Convention’s duty of non-refoulement “is in the process of becoming custom-
ary international law, at the very least at regional level”: UNHCR, “Advisory Opinion on
the Extraterritorial Application of Non-refoulement Obligations under the 1951
Convention relating to the Status of Refugees and its 1967 Protocol,” Jan. 26, 2007, at [21].
817
“No State Party shall expel, return (‘refouler’), surrender or extradite a person to another
State where there are substantial grounds for believing that he or she would be in danger of
being subjected to enforced disappearance. For the purpose of determining whether there
are such grounds, the competent authorities shall take into account all relevant consider-
ations, including, where applicable, the existence in the State concerned of a consistent
pattern of gross, flagrant or mass violations of human rights or of serious violations of
international humanitarian law”: International Convention for the Protection of All
Persons against Enforced Disappearance, 2716 UNTS 3 (UNTS 48088), adopted Dec.
20, 2006, entered into force Dec. 23, 2010, at Art. 16(1). See generally M. Vermeulen,
Enforced Disappearance: Determining State Responsibility under the International
Convention for the Protection of All Persons from Enforced Disappearance (2012).
818
Drawing on the self-executing nature of Art. 3(1) of the Convention on the Rights of the
Child, 1577 UNTS 3 (UNTS 27531), entered into force Sept. 2, 1990, “[t]he relevant
inquiry in these cases is whether the removal of the child is in the child’s best interests.
If removal is contrary to those interests, there will be a strong presumption against
removing the child, subject only to a tightly circumscribed range of considerations that
may in certain circumstances override the child’s best interests”: J. Pobjoy, “Best
Interests,” at 333; see generally Pobjoy, Child in Refugee Law, at chapter 6.
819
“Even though treaty bodies have remained surprisingly evasive about the exact basis of
their praetorian construction, this implicit duty of non-refoulement is anchored in the
theory of positive obligations”: Chetail, International Migration Law, at 196.
820
UN Human Rights Committee, “General Comment No. 31: The Nature of the General
Legal Obligation Imposed on States Parties to the Covenant” (2004), UN Doc. HRI/GEN/
1/Rev.7, May 12, 2004, at [12]. With respect to Art. 6, “the right to life requires State Parties

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 4.1 ri g h t t o en t er an d r emai n i n an asylu m state 461

Indeed, the Committee has recently opined that environmental degradation

may in some circumstances engage risks under Arts. 6 and 7, thus mandating
protection against refoulement.821
In addition to a clear duty not to return anyone to face grave risks to their
physical security, there is nascent support for the view that state parties to the
European Convention on Human Rights and Fundamental Freedoms will not
be allowed to remove persons who face the risk of a particularly serious
violation of a fairly wide range of human rights.822 Beyond norms of non-

to refrain from deporting, extraditing or otherwise transferring individuals to countries in

which there are substantial grounds for believing that a real risk exists that they would be
deprived of their life in violation of article 6”: UN Human Rights Committee, “General
Comment No. 36 on article 6 of the International Covenant on Civil and Political Rights,
on the right to life,” Revised draft prepared by the Rapporteur, UN Doc. CCPR/C/GC/
R.36/Rev.5, July 26, 2016, at [34]. A concurring opinion in the UN Human Rights
Committee suggests that some caution is warranted before interpreting other obligations
to contain an implied duty of non-refoulement: X v. Denmark, HRC Comm. No. 2007/
2010, UN Doc. CCPR/C/110/D/2007/2010, decided Mar. 26, 2014, per G. Neuman (noting
“the fallacy of the abstract argument that a State’s duty not to violate a right always entails
an obligation not to send an individual to a second State where there is a real risk that the
second State will violate the right. The Committee’s general comment No. 31 speaks of
‘irreparable harm . . . ’ as the kind of injury that is severe enough to justify a non-
refoulement obligation. Some violations of the Covenant have only financial consequences
and are easily reparable; but beyond that, the language of the general comment suggests
that it is referring to irreparability in a deeper sense”). Some caution about the scope of
these duties is, however, suggested by the determination of the High Court of Australia
that there is a “high hurdle” to benefit from the implied duty of non-refoulement under
Arts. 6 and 7 of the Civil and Political Covenant, including in particular a duty to avoid
that risk by “reasonable relocation within the applicant’s country of nationality”:
CR1026 v. Republic of Nauru, [2018] HCA 19 (Aus. HC, May 16, 2018), at [24].
821
“The obligation not to extradite, deport or otherwise transfer pursuant to article 6 of the
Covenant may be broader than the scope of the principle of non-refoulement under
international refugee law, since it may also require the protection of aliens not entitled
to refugee status . . . The Committee also observes that it, in addition to regional human
rights tribunals, ha[s] established that environmental degradation can compromise effect-
ive enjoyment of the right to life, and that severe environmental degradation can adversely
affect an individual’s well-being and lead to a violation of the right to life . . . The
Committee is of the view that without robust national and international efforts, the effects
of climate change in receiving states may expose individuals to a violation of their rights
under articles 6 or 7 of the Covenant, thereby triggering the non-refoulement obligations of
sending states. Furthermore, given that the risk of an entire country becoming submerged
under water is such an extreme risk, the conditions of life in such a country may become
incompatible with the right to life with dignity before the risk is realized”: Ioane Teitiota v.
New Zealand, HRC Comm. No. 2728/2016, UN Doc. CCPR/C/127/D/2728/2016, decided
Oct. 24, 2019, at [9.3], [9.5], [9.11].
822
See Costello and Foster, “Custom and Jus Cogens,” at 284–285. In a very thoughtful
analysis, Greenman argues that “there will and must be some limits on the scope of the
principle of non-refoulement,” positing that a choice will have to be made between
retaining the principle’s absolute status but constraining its scope to acts that engage
state responsibility or defining it broadly but allowing resource constraints to be taken into

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 462 4 rights of r efugees physically present

return derived from human rights law, there is tentative judicial authority for
the view that international humanitarian law should be construed to preclude
the forcible repatriation of non-combatants who have fled generalized violence
or other threats to their security arising out of armed conflict in their state of
nationality.823
For at least some refugees in non-party states, the inability to invoke Art. 33
of the Refugee Convention is thus effectively remedied by the ability to invoke
other standards of international law.824 These additional duties of non-refoulement
are also relevant for at least some refugees in state parties since where a state is
bound by a duty of non-return external to the Refugee Convention, the state
concerned may not invoke the flexibility afforded by Art. 33 in order to counter its
other legal responsibilities.825

account: Greenman, “Castle Built on Sand?,” at 294. The European Court of Human
Rights has carefully summarized its approach to non-refoulement duties in JK v. Sweden,
Dec. No. 59166/12 (ECtHR, Aug. 23, 2016), at [77]–[105].
823
See e.g. Orelien v. Canada, [1992] 1 FC 592 (Can. FCA, Nov. 22, 1991); and In re Santos,
Dec. No. A29-564-781 (US IC, Aug. 24, 1990). These decisions related to Common Article
3 of the Geneva Conventions, textually restricted to persons in flight from non-
international conflict. It has, however, been argued that the broadly applicable obligation
in Common Article 1 to “respect and to ensure respect” for the Conventions “in all
circumstances” should be read to include Common Article 3 as a “minimum yardstick,”
with the result that non-combatants from either internal or international conflict are
similarly entitled to protection against refoulement from non-belligerent states: Ziegler, “
‘Common Article 1’ and ‘Common Article 3.’”
824
For example, since “EU law provides more extensive international protection,” it follows
in some cases that “the member state concerned may not derogate from the principle of
non-refoulement [by invoking] article 33(2) of the Geneva Convention”: M v. Czech
Republic, X and X v. Belgium, Dec. Nos. C-391/16, C-77/17, and C-78/17 (CJEU, May
14, 2019), at [95]–[96]. See generally Chetail, “Are Refugee Rights Human Rights?,” at 36–
37 (outlining ways in which human rights law may provide non-refoulement protections
that go beyond those of refugee law).
825
The genesis of this understanding is Chahal v. United Kingdom, (1996) 23 EHRR 413
(ECtHR, Nov. 15, 1996), in which the Court rejected the state party’s argument that
account should be taken of considerations of international security of the kind recognized
as valid constraints on refoulement under Art. 33 of the Refugee Convention in order to
determine obligations under Art. 3 of the European Convention. Much the same approach
was taken by the Supreme Court of Canada in Suresh v. Canada, [2002] 1 SCR 3 (Can. SC,
Jan. 11, 2002): “In our view, the prohibition in the Civil and Political Covenant and the
[Convention Against Torture] on returning a refugee to face the risk of torture reflects the
prevailing international norm. Article 33 of the Refugee Convention protects, in a limited
way, refugees from threats to life and freedom from all sources. By contrast, the CAT
protects everyone, without derogation, from state-sponsored torture. Moreover, the
Refugee Convention itself expresses a ‘profound concern for refugees’ and its principal
purpose is to ‘assure refugees the widest possible exercise of . . . fundamental rights and
freedoms.’ This negates the suggestion that the provisions of the Refugee Convention
should be used to deny rights that other legal instruments make universally available to
everyone.” The UN Human Rights Committee has moreover found even the minimal
discretion to remove a person at risk of torture identified by the Supreme Court of Canada

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 4.1 r ight to enter and remain in an asylum state 463

In sum, most threats to the ability of refugees to enter and remain in an

asylum state are in fact answered by a good faith interpretation of the Refugee
Convention’s prohibition of refoulement. There are, however, three significant
gaps in the protective ambit of Art. 33.
First and most fundamentally, the duty of non-refoulement does not con-
strain policies such as visa controls implemented in countries of origin, or
interstate agreements to deter migration. Until and unless refugees actually
leave their own state, they are not legally entitled to protection against refoule-
ment, or to any other refugee rights. Second, individuals who are refugees, but
who pose a risk to the national security of the state of reception, or who are
particularly serious criminals who endanger its community, cannot claim
protection against refoulement by virtue of the express exceptions set by Art.
33(2). Third, the duty of non-refoulement can be trumped by a claim of
necessity in the case of a state faced with a mass influx of refugees insofar as
the arrival of refugees truly threatens its ability to protect its most basic
national interests.
The last of these gaps could be answered by more effective international
burden and responsibility sharing arrangements. The second concern might
similarly be remedied by a combination of responsibility sharing to relocate
refugees to states in which they do not constitute a security risk, and burden
sharing to finance the cost of allowing criminal refugees the option of incar-
ceration or other appropriate custodial arrangements as an alternative to
refoulement. The first dilemma is, however, the most challenging – though
reliance on the right of “everyone to leave any country” set by Art. 12(2) of the
Civil and Political Covenant certainly has real potential value.826 But with the

in Suresh to be viable under Canadian domestic law to be of doubtful legality. “The

Committee does however refer, in conclusion, to the Supreme Court’s holding in Suresh
that deportation of an individual where a substantial risk of torture had been found to exist
was not necessarily precluded in all circumstances. While it has neither been determined
by the State party’s domestic courts nor by the Committee that a substantial risk of torture
did exist in the author’s case, the Committee expresses no further view on this issue other
than to note that the prohibition on torture, including as expressed in article 7 of the
Covenant, is an absolute one that is not subject to countervailing considerations”: Ahani v.
Canada, HRC Comm. No. 1051/2002, UN Doc. CCPR/C/80/D/1051/2002, decided Mar.
29, 2004, at [10.10]. See generally Kälin, “Article 33, para. 1,” at 1346–1357; and
Zimmermann and Wennholz, “Article 1 F,” at 1407–1412.
826
“Refugees, like all persons, are free to leave any country pursuant to Art. 12(2) of the
ICCPR. In accordance with Art. 12(3), the freedom to depart may be subjected only to
limitations provided by law, implemented consistently with other ICCPR rights, and
shown to be necessary to safeguard a state’s national security, public order (ordre public),
public health or morals, or the rights and freedoms of others. A limitation is only necessary
if shown to be the least intrusive means to safeguard the protected interest. So long as an
individual seeking to leave a state’s territory does so freely, meaning that he or she has
made an autonomous decision to do so, the state of departure may not lawfully restrict the
right to leave on the basis of concerns about risk to the individual’s life or safety during the

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 464 4 righ t s of r efug ee s ph y sica lly p r es en t

dissipation of the political and economic concerns that once sustained the
commitment to refugee protection, we can unfortunately expect to see an
exacerbation of the tendency to endorse visa controls, carrier sanctions, and
migration control agreements as exclusionary mechanisms. As a practical
matter, only a fundamental recasting of the objectives and modalities of
refugee protection has any realistic chance of persuading states to relinquish
their tools of refugee deterrence.827

4.2 Freedom from Arbitrary Detention and Penalization

for Illegal Entry
The ability simply to enter and remain in an asylum state is cold comfort for
many refugees. As UNHCR observes, “it frequently occurs that the necessary
distinction is not made either in law or in administrative practice between
asylum-seekers and ordinary aliens seeking to enter the territory. The absence
of such a distinction may, and in many cases does, lead to asylum-seekers being
punished and detained for illegal entry in the same manner as illegal aliens.”828
In some cases, there simply has been no effort to enact specific protections
for refugees. For example, under the Thai Immigration Act refugees without
valid passports and visas are not distinguished from other illegal immigrants
and are therefore subject to arrest, detention, and deportation absent an
exercise of ministerial discretion.829 Similarly, Libya has long resisted calls to
reform its system of mandatory detention for migrants and refugees alike;830 its
reliance on arbitrary and indefinite detention831 is exacerbated by agreements

process of leaving or traveling”: “The Michigan Guidelines on Refugee Freedom of

Movement,” (2017) 39 Michigan Journal of International Law 1, at [4]–[6].
827
See J. Hathaway and A. Neve, “Making International Refugee Law Relevant Again: A
Proposal for Collectivized and Solution-Oriented Protection,” (1997) 10 Harvard Human
Rights Journal 115; and J. Hathaway ed., Reconceiving International Refugee Law (1997).
828
UNHCR, “Note on Accession to International Instruments and the Detention of Refugees
and Asylum Seekers,” UN Doc. EC/SCP/44, Aug. 19, 1986 (UNHCR, “Detention Note”),
at [33].
829
“The Thai Immigration Act of 1979 (B.E. 2522) makes no exception for refugees when it
says anyone who enters Thailand without authorization ‘shall be punished by an impris-
onment not exceeding two years and a fine not exceeding 20,000 Baht [about US$600]’
(section 62), and that any foreigner who ‘stays in the Kingdom without permission or with
permission expired or revoked shall be punished with imprisonment not exceeding two
years or a fine not exceeding 20,000 Baht or both’ (section 81)”: Human Rights Watch, “Ad
Hoc and Inadequate: Thailand’s Treatment of Refugees and Asylum Seekers,” Sept. 12,
2012, at 99.
830
Human Rights Watch, “Libya: Carry Out UN Calls for Reform,” Nov. 17, 2010.
831
UN Support Mission in Libya and UN Human Rights Office of the High Commissioner,
“‘Detained and Dehumanized’: Report on Human Rights Abuses against Migrants in
Libya,” Dec. 13, 2016, at 11–13. Indeed, several detention centers are controlled by non-
state armed groups: United Nations Support Mission in Libya, “Desperate and Dangerous:

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 4.2 f reedom from detention a nd penalization 465

with third countries to receive those intercepted after transiting through its
territory.832 Malaysia detains Rohingya and other refugees entering without
documentation and restricts NGO access to detention sites.833 The UNHCR
intervened in 2001 when Malawi threatened to deny protection to refugees
from the Democratic Republic of Congo on the grounds that they did not have
the required documentation to enter the country.834 Lebanon treats Syrians
not registered with UNHCR as illegally present, yet simultaneously directs the
agency to refrain from registering them as refugees.835 In Kenya, even refugees
who were issued UNHCR documentation have been arrested and detained
unless able to pay a bribe to officials.836
Even in states with refugee-specific legislation, the laws may not clearly pre-
empt inconsistent immigration laws. Thus, many arriving refugees are in practice
subject to the same penalties for illegal entry as other aliens in Bulgaria837 and in

Report on the Human Rights Situation of Migrants and Refugees in Libya” (Dec. 20, 2018),
at 38–39.
832
See e.g. D. Nakache and J. Losier, “The European Union Immigration Agreement with
Libya: Out of Sight, Out of Mind?” E-International Relations, July 25, 2017.
833
L. Barron, “Refugees Describe Death and Despair in Malaysian Detention Centres,”
Guardian, May 15, 2017; Asia Pacific Refugee Rights Network, “Malaysia,” Mar. 2017.
834
“[T]he UNHCR chief in Malawi, Michael Owor, accused the government of flouting
international conventions on refugees . . . ‘Refugees don’t need papers. What sort of
papers do they want?,’ he said”: SAPA-SFP (Blantyre), Apr. 17, 2001.
835
Despite a recently relaxed residence policy for recognized refugees, the reforms “exclude[]
an estimated 500,000 Syrians not registered with UNHCR . . . even though the government
directed UNHCR to stop registering Syrians as refugees in May 2015. It also excludes
anyone who has used a Lebanese sponsor to maintain legal residency, even though General
Security officers have required many Syrians to secure sponsors – in contravention of
Lebanese policies”: B. Khawaja, “The Gaps in Lebanon’s New Refugee Policy,” Mar. 14,
2017. The Lebanese government recently noted that while “[t]he UN characterizes the
flight of civilians from Syria as a refugee movement, and considers that these Syrians are
seeking international protection and are likely to meet the refugee definition,” it would
persist in referring to refugees fleeing Syria into Lebanon after March 2011 simply as
“temporarily displaced individuals”: Lebanon, “Lebanon Crisis Response Plan” (2019),
at 4.
836
According to Human Rights Watch, “security forces have routinely confiscated or des-
troyed documentation, and frequently extorted large sums of money in exchange for
release. Residents of Eastleigh . . . paid between KES500 to 5,000 (US$5.88 to $8.80) to
avoid being detained, or up to KES40,000 ($470) to secure their release. Police have
confiscated both expired and valid UN refugee documents, and in some cases have torn
them up. Some refugees moved from Nairobi to the remote refugee camps as the only way
to avoid paying bribes to stay out of detention”: Human Rights Watch, “Kenya: End
Abusive Round-Ups,” May 12, 2014.
837
“In practice, detention of third-country nationals is ordered by the border or immigration
police on account of their unauthorised entry, irregular residence or lack of valid identity
documents. After the amendments of the [Law amending the Law on Aliens in the
Republic of Bulgaria] in the end of 2016, these authorities can initially order a detention
of 30 calendar days within which period the immigration police should decide on follow-
ing detention grounds and period or on referral of the individual to an open reception

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 466 4 righ ts of r efug ee s ph y sica lly p r es en t

South Africa.838 Russian police have rounded up and detained asylum-seekers –

including those with valid documents – as part of general operations to catch
illegal immigrants.839 Refugees arriving at or traveling through the United
Kingdom are subject to criminal penalties for producing invalid travel documents
or arriving without passports. Despite the enactment of an amendment recogniz-
ing a defense specifically for refugees, many continued to be convicted of the
offense.840 Danish law authorizes the prosecution of refugee claimants who seek
protection there in reliance on false identity documents, but only once they are
determined not to be refugees.841 Argentina, in contrast, provides for the suspen-
sion of any criminal proceedings pending the outcome of refugee status assess-
ment.842 Though short of criminal prosecution, US law provides for the summary

centre, if he or she has applied for asylum”: Asylum Information Database, “Country
Report: Bulgaria” (2016), at 53.
838
C. Costello, “Article 31 of the 1951 Convention Relating to the Status of Refugees,” July
2017, at 56–57 (Costello, “Article 31”).
839
“At the end of July, Moscow police opened a massive campaign in Russia’s capital against
irregular migrants, sweeping through street markets and other places where many
migrants gather, and detaining people based on their non-Slavic appearance. According
to media reports, over 4,000 people have been taken into custody, including nationals of
Vietnam, Syria, Afghanistan, Egypt, Morocco, Kyrgyzstan, Uzbekistan, and Tajikistan . . .
Migrants detained during police raids typically have had no access to legal counsel or
translators. They have not been able to inform family members of their fate and where-
abouts, and were not allowed to pack any belongings or retrieve documents they were not
carrying at the time they were detained. Some who are awaiting deportation are asylum
seekers or have lawful residence permits, and thus have a legal right to be in Russia”:
Human Rights Watch, “Russia: Mass Detention of Migrants,” Aug. 8, 2013.
840
Despite the enactment of s. 31 of the 1999 Immigration and Asylum Appeals Act as a
defense to both crimes of arriving without travel documents and producing invalid
documents, a 2012 report found that the “relevant prosecution offices that service airports,
ports and immigration offices may have been prosecuting offences of this kind without
any regard to Article 31, Refugee Convention or the defences in domestic legislation for
several years. Defence lawyers appear to have advised asylum seekers/refugees in these
cases to plead guilty when there were potential defences available to them”: Criminal Cases
Review Commission, “Annual Report and Accounts 2011/12,” July 2012, at 15–16.
According to one estimate, there were about fifty cases of wrongful convictions of refugees
over a ten-year period in two courts alone: A. Aliverti, “Prosecuting Refugees: Wrongful
Convictions, Unlawful Practices,” Border Criminologies Blog, Mar. 20, 2017.
841
Guidelines issued by the Danish Director of Public Prosecutions instruct that asylum-
seekers be exempted from prosecution pending assessment of the claim. In addition, “[i]f a
falsified passport is presented, the authorities do not require the asylum seeker to confess
that the passport is falsified simultaneously while handing it over . . . Only asylum seekers
who are determined to be convention refugees are exempted from penalisation. Those
who are granted a subsidiary form of protection are not”: M. Linha and A. Møkkelgjerd,
“Analysis of Norway’s International Obligations, Domestic Law and Practice: Detention of
Asylum Seekers” (2014), at 69.
842
Ley general de reconocimiento y protección al refugiado, Law No. 26.165, at Art. 40 (Nov.
8, 2006).

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 4. 2 f r e edo m f r o m d et e n t i o n a n d p en a l i za t i o n 467

removal of persons arriving without proper immigration documentation.843

While refugee claimants are given a hearing to determine whether they have a
“credible fear” of persecution in their country of origin844 and may appeal negative
assessments,845 they are often encouraged by immigration judges to withdraw
their asylum claims in exchange for a grant of bare-bones withholding of
removal.846 The US also bars persons previously removed from that country
from applying for asylum; such refugees may only seek withholding of removal,
which does not entitle its beneficiaries to receive full Convention rights.847
Some countries consider time spent in an intermediate country to negate
entitlement to refugee protection. Canada denies refugee status if there is an
absence of “subjective fear,” which it understands to require demonstration of
urgency on the part of the refugee that is often said not to be shown by those
arriving indirectly.848 While applicants are generally afforded the opportunity
to explain the failure to apply for asylum in an intermediate state, “the
underlying presumption remains that only a particularly persuasive explan-
ation can rebut the usual inference that delay is indicative of a lack of subjective
fear.”849 A variant of the principle is implicit in US law, which denies asylum to

843
Immigration and Nationality Act, 8 USCA § 1225(b)(1)(A)(i). More recently, the United
States has taken steps to expand the use of expedited removal: “Border security and
immigration enforcement improvements,” US Executive Order 13767, Jan. 25, 2017. In
issuing preliminary guidance on the implementation of the order, Department of Homeland
Security Secretary John Kelly noted the “surge of illegal immigration at the southern border
has overwhelmed federal agencies and resources and has created a significant national
security vulnerability to the United States. Thousands of aliens apprehended at the border,
placed in removal proceedings, and released from custody have absconded and failed to
appear at their removal hearings.” In addressing the numerous cases pending review before
immigration judges, Kelly further noted that “[t]his unacceptable delay affords removable
aliens with no plausible claim for relief to remain unlawfully in the United States for many
years”: Memorandum from J. Kelly, Secretary, US Department of Homeland Security on
implementing the president’s border security and immigration enforcement improvements
policies, Feb. 20, 2017, at 6–7, regarding implementing “Executive Order: Border Security
and Immigration Enforcement Improvements,” Jan. 25, 2017, at s. 7.
844
Immigration and Nationality Act, 8 USCA § 1225(b)(1)(A)(ii), (B).
845
Ibid. § 1225(b)(1)(B)(iii)(II)–(III).
846
As Legomsky aptly notes, “[t]hose kinds of plea-bargaining offers can cause anguish. By
accepting the offer, the applicant avoids being returned to his or her persecutors but does
not receive permission to remain in the United States or to reunite with his or her spouse
or minor children. If the applicant declines the offer, he or she runs the risk of receiving no
protection at all and being returned to the country of persecution”: S. Legomsky, “The
New Path of Immigration Law: Asymmetric Incorporation of Criminal Justice Norms,”
(2007) 64 Washington and Lee Law Review 469, at 495.
847
Immigration and Nationality Act, 8 USCA § 1231(a)(5).
848
See Maria del Pilar Bravo v. Minister of Citizenship and Immigration, [2014] FC 1099
(Can. FC, Nov. 20, 2014), at [18]–[19]; Erkan Karakaya v. Canada, [2014] FC 777 (Can.
FC, Aug. 5, 2014), at [17].
849
Hathaway and Foster, Refugee Status, at 98.

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 468 4 righ t s of r e f ugee s ph y sica lly pr es en t

persons it deems to have been “firmly resettled” in another asylum state even if
there is no reason to believe that the refugee can, in fact, return there.850
Refugees may also confront deadlines for the receipt of an application for
protection as a refugee. Immediately after acceding to the Refugee Convention
in 2000, for example, Mexico passed regulations under which it generally
refuses to consider claims lodged more than fifteen days after the refugee’s
arrival in the country.851 Spain implemented a similar regime, requiring
refugees to seek protection within one month of arrival or of the occurrence
of the events giving rise to the request.852 Turkey and Ecuador imposed a five-
day filing deadline (subsequently extended to a ten-day and a fifteen-day
deadline respectively), though these rules were ultimately struck down by
courts.853 Even without such rigid rules, much the same result can follow
from administrative practice that penalizes refugees who “delay” in making

850
“An applicant’s loss of the right to return to a country in which he or she was firmly
resettled after becoming a refugee does not necessarily remove the firm resettlement bar”:
US Citizenship and Immigration Services, “Refugee, Asylum, and International
Operations Directorate – Officer Training: Firm Resettlement” (May 23, 2013), at 15.
Courts have applied this bar to refugees notwithstanding the expiration of travel docu-
ments and residence permits issued by the countries in which they were found to be
“firmly” resettled: see e.g. Maharaj v. Gonzales, 450 F. 3d 961 (US CA9, 2006), at 969. More
recently, the US Board of Immigration Appeals has taken the position that even a
fraudulently obtained residence permit may be considered prima facie evidence that the
applicant was firmly resettled: Matter of D-X- & Y-Z-, 25 I&N Dec. 664 (US BIA, 2012), at
667. Noting the lack of clarity as to whether the permits were facially fraudulent (in
addition to being fraudulently obtained), the Board nonetheless regarded the permits as
“facially valid. Even if the respondents used some form of fraud or bribery through a
middleman to obtain them, there has been no showing that they were not issued by the
Belize Government”: ibid. at 666.
851
Under Art. 18 of the Law on Refugees, Complementary Protection and Political Asylum
(2011), the deadline was subsequently extended to thirty working days. Notwithstanding
the extension, “[t]his is an absurdly unrealistic deadline for most migrants, especially
families filing more than one application and anyone learning about this option once they
arrive at the northern border (since the journey from the southern border usually takes
longer than a month, sometimes as long as a year or two). . . Moreover, eligible asylum
seekers at the northern border find themselves far from COMAR offices, are evaluated
through phone rather than in-person interviews, and must remain in the location where
they submitted their application for months while their case is pending”: Kino Border
Initiative, “Asylum Seekers in Mexico,” Sept. 12, 2017. Human Rights First further reports
that “[w]hile awaiting a decision, [applicants] cannot travel or work and must report
weekly to local authorities. There is currently no mechanism to appeal a negative asylum
decision issued by COMAR, meaning that those who are incorrectly denied asylum will be
blocked from protection”: B. Drake et al., “Crossing the Line: US Border Agents Illegally
Reject Asylum Seekers,” May 2017, at 19.
852
Ley No 12/2009, Reguladora del Derecho de Asilo y de la Protección Subsidiaria (2009),
Art. 17(2).
853
K. Kirisci, “UNHCR and Turkey: Nudging towards a Better Implementation of the 1951
Convention on the Status of Refugees” (2001), at 11–12; Asylum Access, Press Release,
“Ecuador Advances the Protection of Refugees,” Sept. 15, 2014.

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 4.2 f r e e d o m f r o m d et e n t i o n an d p en a l i z a t i o n 469

their claim. Finland, for example, declined to exempt an arriving refugee from
penalization for use of a forged passport because the individual had waited one
day before filing an asylum claim.854
By far the most common consequence of a refugee’s unauthorized arrival in
an asylum country is that he or she will be detained or otherwise denied
internal freedom of movement.855 In January 2001, India began detaining
refugees coming from Sri Lanka in order to deter further arrivals.856
Tajikistan prohibits refugees from residing in urban areas including the capital,
allowing them to settle only in rural areas.857 Despite its High Court’s invali-
dation of a similar relocation plan the year before, in 2014 Kenya forcibly
removed refugees from their urban dwellings to remote refugee camps,858
departure from which requires special permission.859 Refugees released from
Indonesian camps are assigned to residential areas; strict geographic restric-
tions impede the ability to travel and to access ports of entry.860
The detention of refugees is often the result of the application of general
laws which permit detention of any unauthorized migrant. Japan, for example,

854
Finland invoked its Aliens Act (378/91), Art. 64b. See UNHCR, “Comments by the
UNHCR Regional Representation for the Baltic and Nordic Countries on the Finnish
Ministry of Justice’s proposal for amendments to the Criminal Code’s provision on
Arrangement of Illegal Immigration,” Mar. 28, 2013, at [16]; see also Costello, “Article
31,” at 29.
855
“Although State Members of the Executive Committee adopted [Conclusion No. 44
(XXXVII)] by consensus, the recommendations contained therein appear to have had
very little impact on the practice of a number of states as regards detention of refugees and
asylum-seekers. On the contrary, detention under harsh conditions, for long periods and
without justifiable cause has recently increased”: UNHCR, “Note on International
Protection,” UN Doc. A/AC.96/713, Aug. 15, 1988, at [21]. See also UNHCR, “Press
briefing notes of Mr. Adrian Edwards,” Sept. 21, 2012: “We are disappointed that many
countries continue to hold asylum-seekers in detention, sometimes for long periods and in
poor conditions, including in some cases in prisons together with common criminals.
UNHCR is particularly concerned that detention is in growing use in a number of
countries. Our research shows that irregular migration is not deterred even by stringent
detention practises, and that practical alternatives to detention do exist. In addition, there
are well-known negative and at times serious physical and psychological consequences for
asylum-seekers in detention.”
856
“In another attempt to deter refugees coming from the island’s war zones in the north, the
Indian government is detaining new arrivals in an area in the transit camp, which has been
converted into a mini-jail. Conditions are appalling, as men, women and children are
holed up in this overcrowded space”: (2001) 85 JRS Dispatches (Jan. 17. 2001).
857
Resolution No. 325, “On the list of Tajik settlements prohibited for temporary residence of
asylum-seekers and refugees,” July 26, 2000. See also US Department of State, “Tajikistan
2016 Human Rights Report,” at 16.
858
Human Rights Watch, “Kenya: End Abusive Round-Ups,” May 12, 2014; Human Rights
Watch, “Kenya: Halt Crackdown on Somalis,” Apr. 11, 2014.
859
Human Rights Watch, “Kenya: Police Abuse Somali Refugees,” June 17, 2010.
860
Human Rights Watch, “Barely Surviving: Detention, Abuse, and Neglect of Migrant
Children in Indonesia,” June 2013, at 68–70.

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 470 4 righ t s of r e f ugee s ph y sica lly pr es en t

provides for the discretionary (and possibly indefinite)861 detention of

persons subject to deportation on a broad range of grounds.862 Under
Hungarian law, commission of the offense of unauthorized entry may
result in imprisonment of up to three years.863 Since 2012, Israel has
enacted several measures for the prolonged detention of African refu-
gees, labeled “infiltrators.”864 Originally authorized for three years, the
law now allows detention at a former military base in the Negev desert
for up to twelve months.865 Indonesia authorizes the detention of
asylum-seekers for up to ten years without judicial review.866 Under
Australian law, refugees are subject to general rules providing for the

861
D. Kikuchi, “Backers of Immigration Detainees Blast Prolonged Stays as Violation of
Human Rights,” Japan Times, May 25, 2017, quoting Lawyers Network for Foreign
Workers representative Shoichi Ibusuki as “explaining that when the immigration bureau
issues an exclusion order, it still has the right to detain a person indefinitely – theoretically
for 100 years.”
862
Immigration Control and Refugee Recognition Act, Arts. 39(1), 24. Grounds for deport-
ation (and therefore detention) include, inter alia, lack of possession of a valid passport,
entry into Japan “without obtaining permission for landing from an immigration
inspector,” and the forging or alteration of a travel document or use thereof to secure
entry: Art. 24(i)–(iii).
863
Amnesty International, “Fenced Out: Hungary’s Violations of the Rights of Refugees and
Migrants,” Oct. 2015, at 20. Longer sentences may be imposed depending on extenuating
circumstances: “If committed armed, or with the use of weapons, or while part of a riot . . .
the sentence will range between 1–5 years; the sentence ranges from 2–8 years if commit-
ted armed, with the use of weapons and as part of a riot. If the act results in a death the
sentence ranges between 2–10 years”: Hungarian Helsinki Committee, “The Hungarian
Helsinki Committee’s opinion on the government’s amendments to criminal law related
to the sealed border,” Sept. 16, 2015, at 3.
864
Law for the Prevention of Infiltration (Crimes and Jurisdiction) (Amendment No 3 and
Temporary Order) 5772-2012 (Amendment No 3); Law for the Prevention of Infiltration
(Crimes and Jurisdiction) (Amendment No 4 and Temporary Order) 5774-2013
(Amendment No 4); and Law for the Prevention of Infiltration and Securing the
Departure of Infiltrators from Israel (Legislative Amendments and Temporary Orders)
5775-2014 (Amendment No 5). For further details on these measures and their challenges
in the Israeli High Court, see R. Ziegler, “No Asylum for ‘Infiltrators’: The Legal
Predicament of Eritrean and Sudanese Nationals in Israel,” (2015) 29(2) Journal of
Immigration, Asylum and Nationality Law 172 (Ziegler, “No Asylum for ‘Infiltrators’”),
184–188.
865
See R. Ziegler, Case Comment, (2015) 27(4) International Journal of Refugee Law 675,
678–679.
866
“Under the Immigration Law (2011, Article 85), irregular migrants must be detained until
they are deported, or if this cannot be implemented, detention is limited to a maximum of
10 years. There is no provision for immigration detainees to challenge their incarceration.
Most detained asylum seekers are held until their refugee status determination has been
completed, a process that can take a year or longer. In fact, even UNHCR-determined
refugees are routinely detained, with Indonesian authorities refusing to secure their
release”: A. Nethery and S. Silverman eds., Immigration Detention: The Migration of a
Policy and its Human Impact (2015).

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 4.2 f r e e do m f r o m det en t i o n and penalization 471

indefinite detention of non-citizens arriving without authorization.867

Although discretionary release via a bridging visa is possible for those
found to pose no risk pending the determination of their claim,868 recipients
of such visas are often refused permission to work and other rights.869 The
routine resort to the detention of persons seeking refugee status is officially
justified in order “to ensure that they do not enter the Australian community
until their claims to do so have been properly assessed and found to justify
entry.”870 Others, however, suggest that the real motive is to deter refugees
and others from traveling to Australia.871
867
“According to the Migration Act, Division 7, [Section] 189 an officer must detain a person
in the ‘migration zone’ if the officer knows or reasonably suspects that the person is an
‘unlawful non-citizen’ . . . Detention is also mandated for a person who is unable to supply
proper documentation or tries to avoid showing proper documentation that they are a
lawful non-citizen . . . Under the law, the period of detention is indeterminate”: F. Motta,
“‘Between a Rock and a Hard Place’: Australia’s Mandatory Detention of Asylum Seekers,”
(2002) 20(3) Refuge 12, at 16.
868
“The visa has existed in a number of forms since its introduction, with asylum seekers
entitled to different work and healthcare rights. At present, those who arrived before 13
August 2012 have work and Medicare rights. Those who arrived after 13 August 2012 only
have Medicare rights. While on a BVE, asylum seekers are provided with casework and
accommodation assistance during the first six weeks, and income is provided at 89% of
Centrelink payments. After six weeks, the need for ongoing assistance is assessed and
assistance can be provided under a number of schemes if the asylum seeker has serious
physical or mental health issues, is elderly and unable to support themselves or has serious
family issues. For those who are accepted as needing ongoing support, pharmaceuticals are
further subsidised and ongoing casework is provided”: R. Essex, “Asylum Seeker Health
and Bridging Visas: History Repeating,” (2013) 37(6) Australian and New Zealand Journal
of Public Health 506.
869
B. Doherty and A. Karim Hekmat, “‘We are the Forgotten People’: The Anguish of
Australia’s ‘Invisible’ Asylum Seekers,” Guardian, Apr. 12, 2016.
870
“Response of the Australian Government to the Views of the [UN Human Rights]
Committee in Communication No. 560/1993, A v. Australia,” June 25, 1998, at [5]. The
Immigration Minister stated that he was committed to a policy of detaining persons
seeking refugee status “because no-one had invented an alternative monitoring system
that worked . . . ‘From our point of view, our system ensures that people are available for
processing and removal if required,’ he said”: Canberra Times, Jan. 26, 2002, at C-1,
quoting Immigration Minister Philip Ruddock. More recently, the Department of
Immigration and Border Protection has taken the view that “only orderly, safe and well-
managed migration policies allow a nation to realise its full positive economic, social and
cultural rewards of immigration” and that “strong border security measures, including
mandatory detention, ensures the integrity of Australia’s migration programmes”:
Department of Immigration and Border Protection, “Statement on UN Special
Rapporteur’s visit,” Nov. 18, 2016.
871
Prime Minister Abbott suggested a deterrent motive, observing that “Australia will do
absolutely nothing that gives any encouragement to anyone to think that they can get on a
boat, that they can work with people smugglers to start a new life. I’m sorry. If you want to
start a new life, you come through the front door, not through the back door”: S. Medhora,
“‘Nope, Nope, Nope’: Tony Abbott says Australia will take no Rohingya Refugees,”
Guardian, May 20, 2015, quoting Prime Minister Tony Abbott. In the context of an

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Other countries’ detention laws may target refugees specifically. Prior to a

series of challenges leading to the program’s suspension in 2015, the United
Kingdom’s Detained Fast Track system was used to achieve the confinement of
large numbers of refugee applicants pending the processing of their claims,
including during appeals.872 Even more appalling was Hungary’s criminaliza-
tion in 2015 of not only entering without authorization, but also of anyone who
had damaged or obstructed construction of the fences along its border with
Serbia.873 More recently, the provision for automatic and mandatory detention
of all asylum-seekers within its borders874 earned Hungary a rebuke from the
UNHCR and prompted several EU member states to suspend Dublin transfers
to its territory.875
Even in countries where the detention of refugees is in principle more
selective, it may in practice be quite routine. For example, refugees
arriving in the United States have commonly been detained since the

unsuccessful bid to ban refugees detained at Nauru and Manus Island from ever traveling
to Australia, Prime Minister Turnbull commented that “[t]his will send the strongest
possible signal to the people smugglers . . . It is incredibly important that we send the
clearest message . . . They must know that the door to Australia is closed to those who seek
to come here by boat with a people smuggler. It is closed. Those passengers will never settle
in this country”: D. Conifer, “Manus Island, Nauru Refugees to be Banned from Entering
Australia, Malcom Turnbull says,” ABC News, Oct. 30, 2016.
872
J. Brokenshire, Written Statement HCWS83, July 2, 2015.
873
“In addition, special, fast-track criminal procedures were introduced (which in themselves
raised concern[s] about the fairness of the criminal trials conducted). Under these new
provisions, between 2015 and 2016, thousands of asylum-seekers were convicted of
criminal offences relating to the border fence. Attempts to rely on Article 31 in these
cases apparently failed, including because asylum-seekers were deemed not to have ‘come
directly’ to Hungary . . . [T]he new criminal measures were also combined with changes to
the asylum legislation to deflect asylum-seekers back to Serbia using a quasi-automatic
safe third country rule, in defiance of a clear ruling by the Hungarian Supreme Court, and
more recently the ECtHR”: Costello, “Article 31,” at 59–60. See also Hungarian Helsinki
Committee, “The Hungarian Helsinki Committee’s opinion on the government’s
admendments to criminal law related to the sealed border,” Sept. 16, 2015.
874
Amendment of certain acts to tighten the procedures conducted on the border (entered
into force Mar. 28, 2017). Under the new law, “individuals could be detained anywhere
inside Hungarian territory and escorted to Serbia without having an opportunity to
present a claim for asylum. All asylum seekers – including families with children and
unaccompanied minors over the age of 14 – will be detained in a closed camp along the
border while their cases are reviewed”: L. Bayer, “Hungary Approves Mandatory
Detention of all Asylum Seekers,” Politico, Mar. 8, 2017. See also “Hungary: Law on
automatic detention of all asylum seekers in border transit zones enters into force, despite
breaching human rights and EU law,” Hungarian Helsinki Committee, Mar. 28, 2017.
875
“UNHCR deeply concerned by Hungary plans to detain all asylum seekers,” Mar. 7, 2017.
See also J. Suder, “Switzerland Court Denies Deportation of Asylum Seeker to Hungary,”
Jurist, June 11, 2017; Asylum Information Database, “Denmark: Refugee Appeals Board
suspends transfers to Hungary,” May 4, 2017; Asylum Information Database, “Hungary:
Dublin transfers suspended by Germany,” Aug. 29, 2017.

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 4.2 f r ee d o m f r o m d e t en t i o n an d p e n a l i z a t i o n 473

early 1980s.876 Despite provision to release refugees who pass the “cred-
ible fear” pre-screening process,877 legislation passed in 2004 mandated
doubling of detention bed space878 and the 2010 prioritization of remov-
ing “recent entrants of the United States who do not have valid immigra-
tion documents”879 means that in practice most refugees are detained
pending a final adjudication of their protection claim.880 Though the
recast Dublin Regulation provides for pre-removal detention of only
those posing a “significant risk of absconding,”881 states implementing
this requirement have drawn on overly broad factors in identifying such
876
While historically refugee claimants were not detained, the practice of the Immigration
and Naturalization Service from 1982 has been to detain all asylum-seekers arriving
without proper documentation pending status verification: M. Taylor, “The 1996
Immigration Act: The Detention Provisions,” (1997) 74(5) Interpreter Releases 209. This
pattern is distinct from the precedent of 1954 to 1982, during which time the government
“paroled most asylum seekers into the country while they awaited adjudication of their
claims”; in contrast, between 1996 and 2006, “the United States imprisoned 65% of the
detained non-citizen population for non-violent criminal offenses”: V. Woodman de
Lazo, “The Morton Memo and Asylum Seekers: An Overview of the US Mandatory
Detention Policy,” (2013–2014) 48 New England Law Review 775 (Woodman de Lazo,
“Morton Memo”), at 783–784.
877
An asylum-seeker who is not “clearly and beyond a doubt entitled to be admitted shall be
detained for a [removal] proceeding”: Immigration and Nationality Act, s. 235(b)(2)(A).
Undocumented aliens who apply for asylum may be released from detention only “to meet
a medical emergency or [when release] is necessary for a legitimate law enforcement
activity”: ibid. at s. 235.3(b)(4)(ii).
878
See Intelligence Reform and Terrorism Prevention Act of 2004. “This Act authorized the
construction of approximately 40,000 additional detention bed spaces, which doubled the
average bed space used at the time. Predictions estimated this construction would increase
detention costs by $3.2 million per day”: Woodman de Lazo, “Morton Memo,” at 782–783.
More recently, the renewal and extension of contracts with various for-profit prison
companies mark continued efforts to expand detention capacity: American Civil
Liberties Union, “ACLU Calls on HSAC to Urge Immediate Moratorium on Expansion
of Immigration Detention,” Oct. 26, 2016; see also C. Harlan, “Inside the Administration’s
$1 Billion Deal to Detain Central American Asylum Seekers,” Washington Post, Aug. 14,
2016.
879
Memorandum from John Morton, Assistant Secretary, ICE, on Civil Immigration
Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens, June
30, 2010.
880
“Pursuant to the regulations, asylum seekers arriving at the US border without the proper
documentation are placed into expedited removal proceedings. During this time, asylum
seekers will almost inevitably remain in a US detention facility awaiting a credible fear
interview and final adjudication of their claims. The time that asylum seekers spend in
detention facilities varies from several months to several years, depending on the merits
and procedural intricacies of their claims”: Woodman de Lazo, “Morton Memo,” at 783.
881
European Council Reg. EC 604/2013, June 26, 2013 (Dublin Regulation (recast)), at Art.
28(1). The Regulation defines the concept of “risk of absconding” as “the existence of
reasons in an individual case, which are based on objective criteria defined by law, to
believe that an applicant or a third-country national or a stateless person who is subject to
a transfer procedure may abscond”: Dublin Regulation (recast), at Art. 2(n). The

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 474 4 ri g h t s of r e f u g e es ph y s i c a l l y p r e s e nt

persons.882 In particular, Lithuania deemed persons applying for asylum

following pre-trial investigation for illegal entry to pose such a risk;883
until its High Administrative Court determined otherwise,884 Austria
similarly considered a risk to exist where another EU member state was
responsible for the claim’s examination.885 Despite the introduction of
reforms to replace automatic detention of unauthorized arrivals in
Malta,886 those arriving irregularly by plane continue to be detained in
practice.887
In contrast, some states prioritize alternatives to the detention of refugees in
jails or prisons. For instance, the United Kingdom permits release upon bail or
provision of surety,888 while Canada offers assistance in meeting bail

Regulation prevents States from detaining applicants solely on the basis of their subjection
to a Dublin procedure: Dublin Regulation (recast), at Art. 28(1).
882
A comparative study on policies in Austria, Belgium, Lithuania, Sweden, and the United
Kingdom revealed the problematic nature of the criteria identified, as highlighted in the
following factors: “non-cooperative behaviour regarding obligations to leave the territory;
previous criminal convictions; lack of documents; insufficient means of subsistence;
insufficient ties to the country of residence”: European Council on Refugees and Exiles,
“The legality of detention of asylum seekers under the Dublin III Regulation,” AIDA Legal
Briefing No. 1, June 2015, at 4. The findings led the authors to conclude that “[t]he criteria
determining ‘risk of absconding’ . . . tend to be overly broad, unclear and in some cases
tenuously connected to factors conducive to determining the applicant’s future conduct”:
ibid.
883
Odysseus Network, “Alternatives to Immigration and Asylum Detention in the EU: Time
for Implementation,” Jan. 2015, at 71.
884
European Council on Refugees and Exiles, “Austrian court finds detention of asylum
seekers subject to a ‘Dublin’ return currently unlawful,” Apr. 9, 2015.
885
Odysseus Network, “Alternatives to Immigration and Asylum Detention in the EU: Time
for Implementation,” Jan. 2015, at 71.
886
“Before the Ministry of Home Affairs and National Security adopted the 2015 ‘Strategy for
the Reception of Asylum Seekers and Irregular Migrants,’ asylum seekers were detained on
the same grounds as other categories of non-citizens, with the only difference being that
asylum seekers faced a maximum detention period of 12 months. Legal notice 417 of 2015
provided a new regulation for reception regulations, which establishes [the] following
grounds for the detention of asylum seekers: a) to determine or verify identity or
nationality; b) to determine those elements on which the application is based which
could not be obtained in the absence of detention, in particular when there is a risk of
absconding on part of the applicant; c) to decide on the applicant’s right to enter Maltese
territory; d) when the applicant is subject to a return procedure and there are reasonable
grounds to believe that the application for international protection was made merely to
delay or frustrate a[n] enforcement of a return decision; e) to protect national security or
public order; f) to determine the member state responsible for the examining of the
application”: Global Detention Project, “Malta Immigration Detention Profile,” Aug.
2017, at 5–6.
887
Aditus, Jesuit Refugee Service, and European Council for Refugees and Exiles, “AIDA
Country Profile: Malta,” 2016, at 14.
888
Detained refugee claimants may be required to produce a surety, but this requirement is
not automatic: UNHCR, “Options Paper 2: Options for governments on open reception

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 4.2 f r ee d o m f r o m d e t en t i o n an d p e n a l i z a t i o n 475

requirements as well as community supervision upon release.889 Other coun-

tries avoid the risk of imprisonment by routinely assigning unauthorized
refugees to live in reception centers, where housing and other basic needs are
met. Under German law, for example, all refugee applicants are assigned to live
in a reception center based upon a distribution quota agreed to by the federal
and Länder governments. Though those with relatives present may apply to be
relocated in order to join them, refugees must stay in the assigned reception
center in principle for three months; compulsory accommodation ends when
protection is granted.890 In Bulgaria891 and Ireland,892 refugees seeking pro-
tection may reside outside a reception center, but only if they submit a waiver
of their right to benefit from social assistance. France employs a system of
house arrest and surveillance for up to six months, but resorts to detention
where such arrangements prove ineffective.893

and alternatives to detention” (2015) (UNHCR, “Options Paper 2”), at 8. Under the
Immigration Act 2016, bail may be granted by an immigration officer or a judge of the
First-Tier Tribunal and may be subject to conditions such as living at a specific address,
reporting to the Immigration Service, undertaking only permitted employment and
studies, and wearing an electronic monitoring device: Immigration Law Practitioners’
Association, “Bail and Detention in the Immigration Act 2016,” Sept. 7, 2016, at 7–8. For
those who do not apply for bail themselves or whose applications are denied, the UK
Home Office must arrange hearings after four months and every four months thereafter:
Immigration Law Practitioners’ Association, “Immigration Act 2016: Immigration Bail,”
Aug. 1, 2016. The Act also retroactively renders lawful the imposition of bail conditions on
persons released but who cannot lawfully be detained again: ibid.
889
Support is provided by the Toronto Bail Program (TBP), a non-profit entity that acts as
“bondsperson” for those lacking family or other eligible guarantors: UNHCR, “Options
Paper 2,” at 8. “Under the TBP, no payment is made, rather asylum-seekers are released on
the basis of the TBP’s guarantee . . . As per the contract signed between the asylum-seeker
and the TBP, they agree to appear for all appointments, to notify the TBP of a change of
address and to participate in meaningful activities while in Canada (e.g. education,
vocational training, work) . . . Failure to comply with reporting obligations may result in
TBP informing the provincial authorities, in which case the person would be placed under
a Canada-wide arrest warrant. TBP makes it explicit that failure to report may result in
return to detention”: ibid. at 7.
890
Ibid. at 9.
891
Asylum-seekers are allowed to reside outside the reception centers at so-called “external
addresses” contingent on submitting a formal waiver from their right to accommodation and
social assistance and agreeing to cover rent and other related costs at their own expense:
Bulgarian Helsinki Committee, “Types of Accommodation: Bulgaria,” in ECRE Asylum
Information Database, Dec. 31, 2016, in www.asylumineurope.org, accessed Feb. 10, 2020.
892
Asylum-seekers are not obliged to use RIA (Reception and Integration Agency) accom-
modation and may source their own accommodation or stay with relatives or friends.
However, to do so means that the individual is not entitled to state social welfare supports,
e.g. medical card, rent allowance, etc.: Irish Refugee Council, “Criteria and Restrictions to
Access Reception Conditions: Republic of Ireland,” in ECRE Asylum Information
Database, Apr. 27, 2017, in www.asylumineurope.org, accessed Feb. 10, 2020.
893
European Council on Refugees and Exiles, “The Detention of Asylum Seekers in Europe:
Constructed on Shaky Ground?” June 2017, at 11.

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Hong Kong, by contrast, does not require refugee claimants to reside in a

reception center, but permits them to live in the community pending the
processing of their claims; this arrangement may be revoked for those who
fail to report to monthly meetings scheduled with immigration officials.894
Sweden similarly requires that non-detained claimants meet regularly with
their assigned caseworkers, but reserves the right to confiscate passports and
other identity documents for the duration of the program.895 Danish law,
which provides for a variety of conditions that may be imposed to retain the
privilege of non-detention, authorizes the use of an electronic monitoring
device for those who fail to abide by them.896 The United States has employed
phone reporting as an alternative to such devices.897
Even if there is no general commitment to the detention of all asylum-
seekers, detention may be routine for a subset of refugees, defined by the place
or manner of entry into the asylum country. In Germany, asylum-seekers who
apply at airports are routinely detained in transit zones, though only pending a
decision on whether their claim to be a refugee is manifestly unfounded.898 A
Canadian law allows for the designation of refugees smuggled into Canada as
part of a group as “designated foreign nationals” subject to mandatory deten-
tion and delayed access to permanent residence.899 In a measure purportedly
894
All claimants “are required to report in person to the HKID once a month as scheduled.
Failure to report is tantamount to absconding and consequently results in an investigation
and potential arrest”: UNHCR, “Options Paper 2,” at 7.
895
Global Detention Project, “Sweden Immigration Detention,” Mar. 2016, www.globalde
tentionproject.org/countries/europe/sweden, accessed Feb. 10, 2020. See also UNHCR,
“Options Paper 2,” at 7.
896
“Until a decision is made as to whether or not an alien is to be expelled, refused entry,
transferred or retransferred or returned from Denmark on the grounds that . . . he is not
entitled to stay in Denmark, and until such decision can be enforced, provided that it is
found necessary for ensuring the presence of the alien concerned, the police may order the
alien to – (i) deposit his passport, other travel documents and ticket with the police; (ii)
provide bail in an amount determined by the police; (iii) stay at an address determined by
the police; and (iv) report to the police at specified times”: Denmark, 1983 Aliens Act
(Consolidation Act No. 863 of June 25, 2013), Art. 34(1). If the individual fails to abide by
these measures he or she can be forced to wear an electronic monitoring device: ibid. at
Art. 36(1).
897
According to a UNHCR report on the subject, “[i]ndividuals can ‘check-in’ with US
immigration enforcement authorities over the phone via the contractor’s biometric
voice recognition software. The frequency of the call-in is based on an assessment of
risk and may be increased or decreased depending on the stage of an individual’s case. If
the individual does not call-in at the appropriate intervals, reporting may be escalated or
they may subject to re-detention”: UNHCR, “Options Paper 2,” at 7.
898
Asylum Procedure Act, s. 18(a), “Procedure in case of entry by air” (as amended Mar. 11,
2016). See also Informationsverbund Asyl und Migration, “Border Procedure (Border and
Transit Zones): Germany,” Asylum Information Database; “Refugee Accommodation in
the Airport no Deprivation of Liberty,” MiGAZIN, May 9, 2017.
899
Persons over the age of sixteen arriving who are “irregular arrivals” are deemed to be
“designated foreign nationals” subject to automatic and mandatory detention for at least

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 4.2 f reedom from detention a nd penalization 477

aimed at weeding out “fake refugees,” Australia announced that it would refuse
to consider claims lodged after Oct. 1, 2017 for persons arriving by boat.900 An
appellate court in the United States has upheld the denial of refugee status on
the basis of mode of arrival. In a case in which the refugee arrived hidden in a
“metal box that was welded to the bottom of a car and driven across the border
in the desert heat,” the Court determined that “to grant asylum in this case
would encourage other individuals . . . to enter the United States by risking
their lives by cramming themselves into these boxes.”901
The most common situation-specific reason for ordering the detention of
refugees, particularly in the less developed world, is the existence of a “mass
influx” of asylum-seekers.902 For example, Thailand imposed a strict policy of
detention in closed camps on Cambodian refugees, reportedly enforced by the
extrajudicial execution of persons discovered outside the camp boundaries.903
Uganda confined over 1,000 Rwandan refugees arriving in 2005 in very

two weeks, renewable twice for six months each time. Moreover, designated refugee
claimants are not considered to be “lawfully present” in Canada; nor are those recognized
as refugees considered to be lawfully staying: Protecting Canada’s Immigration System Act
2012, at ss. 20.1 (on power/authority to designate), 31.1 (lawfully staying), 55(3.1) (man-
datory detention), 57.1 (timeline for detention); and 11(1), 20.2, 24(5)–(7), 25(1) (on
constraints on access to permanent residence).
900
The measure targeted refugees arriving by sea between August 2012 and January 2014 and
whose claims were barred until December 2016 by the “no advantage” rule, which
purported to ensure that they did not benefit over persons already waiting within refugee
camps: B. Doherty, “Peter Dutton Gives Asylum Seekers in Australia Deadline to Apply
for Refugee Status,” Guardian, May 20, 2017. In addressing the issue of maritime arrivals,
the Immigration Minister reportedly stated that “[w]e aren’t going to tolerate that any
longer . . . If people think they can rip the Australian taxpayer off, if people think that they
can con the Australian taxpayer, then I’m sorry, the game’s up and we won’t allow people
to take Australian taxpayers for a ride”: C. Brinsden, “Dutton says ‘the Game’s Up’ for
Fake Refugees,” Australian Associated Press, May 21, 2017.
901
Junming Li v. Holder, 656 F. 3d 898, 899, 900 (US CA9, Sept. 1, 2011). The deterrent
rationale was upheld by the Court of Appeals, which noted that “[w]hile there is a sense of
unfairness in singling out Li for the purpose of sending a message to the other potential
asylum seekers, the BIA is not required to grant asylum to every qualified applicant”: ibid.
at 906.
902
“Problems relating to detention have also arisen in large-scale influx situations where
States frequently find it necessary to place asylum-seekers in camps or reception centres
due to concerns for community welfare, national security and the need to provide
accommodation to large numbers of persons. In certain instances, however, asylum-
seekers have been placed in ‘closed camps’ for unduly long periods under harsh conditions
as part of a policy of ‘humane deterrence’ adopted as a result of a decline in resettlement
prospects. In such cases refugees are required to remain in closed camps indefinitely
without any immediate prospect of a solution”: UNHCR, “Detention Note,” at [39].
903
Amnesty International, “Thailand: Extrajudicial Execution of Kampuchean Refugees”
(1988). More generally, “[t]he authorities treat refugees who leave the camps as illegal
immigrants, subject to arrest. Thai police, soldiers, or paramilitaries who apprehend camp
residents outside the camps either send them back, often after exacting forced labor or
requiring bribes, or send them to one of Thailand’s Immigration Detention Centers, from

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 478 4 ri g ht s of re f u g e es p hy s i c a l l y p r e s e n t

difficult conditions at the Nakivale settlement on the basis that “it would
prevent double registration” of their protection claims.904 Following a
“surge” of unauthorized arrivals at its southern border in 2014, the United
States adopted an extended no-release policy for Honduran, Salvadoran, and
Guatemalan families and unaccompanied children found to have a “credible
fear” of persecution; the aim of the measure was to “send a message that such
immigrants, coming en masse, are unwelcome.”905 Following the implementa-
tion of the EU–Turkey agreement, Greece applied a policy of “automatic de
facto detention” for those arriving at Reception and Identification Centers;906
this practice was supplemented in mid-2016 by the transfer of refugees accused
of “law-breaking conduct” from the Greek islands to pre-removal centers on
the mainland.907 Even UNHCR has been involved in the establishment and
administration of temporary holding areas for refugees arriving in a mass
influx situation,908 including for example those for Rwandan and Burundian
refugees in Tanzania in 1996.909 Perhaps most notoriously, it collaborated in
the detention of Vietnamese asylum-seekers arriving in Hong Kong after 1982.
Persons seeking protection were held in prison-like conditions, most for more
than two years, pending a determination of their claims to refugee status under
UNHCR auspices. Hong Kong’s Secretary of State proclaimed that “[t]his

which they are deported to Burma”: Human Rights Watch, “Thailand: Refugee Policies Ad
Hoc and Inadequate,” Sept. 13, 2012.
904
(2005) 175 JRS Dispatches (July 11, 2005).
905
RIL-R v. Johnson, 80 F. Supp. 3d 164 (US DCDC, Feb. 20, 2015), at 172.
906
“More precisely, people arriving after the implementation of the statement are subject to a
3-day restriction on their ‘freedom of movement’, as described by law, within the premises
of the Reception and Identification Centres (RIC), which can be further extended by a
maximum of 25 days if reception and identification procedures have not been completed.
Taking into consideration that people are not allowed to leave the RIC, the so-called
restriction of movement is tantamount to a de facto detention measure of all newly arrived
persons”: Greek Council for Refugees, “Place of Detention: Greece,” Asylum Information
Database, 2017. See also Human Rights Watch, “Greece: Asylum Seekers Locked Up,”
Apr. 14, 2016.
907
Greek Council for Refugees, “Greece,” Asylum Information Database, 2016; see also
European Council on Refugees and Exiles, “The detention of asylum seekers in Europe:
Constructed on shaky ground?” June 2017, at 8.
908
“There is a trend towards camp-like solutions on the part of UNHCR in the Horn of Africa . . .
The increasing permanence of UNHCR’s camp operations in locations like Dadaab, however,
where UNHCR protects over 100,000 mostly Somali refugees, is problematic. UNHCR tends
to maintain refugees in camps, at the Kenyan government’s insistence, at the expense of basic
human rights including freedom of movement and the right to employment”: J. Hyndman and
B. Nylund, “UNHCR and the Status of Prima Facie Refugees in Kenya,” (1998) 10(3)
International Journal of Refugee Law 21, at 45–46.
909
Information provided by UNHCR Ngara, Feb. 6, 1996; personal interview with Mr. Jean-
Marc Mangin of CARE USA, Sept. 12, 1996. Even at the end of 2000, “approximately
490,000 refugees . . . remained under the responsibility of UNHCR”: S. van Hoyweghen,
“Mobility, Territoriality and Sovereignty in Post-Colonial Tanzania,” (2002) 21(1–2)
Refugee Survey Quarterly 300, at 300.

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 4. 2 f r e edo m f r o m d et e n t i o n a n d p e n a l i z a t i o n 479

move should make Hong Kong less attractive for refugees. When the message
gets back to Vietnam, it should help to deter people from setting out . . . It is
urgent that word gets back to Vietnam at once that those who come will be
greeted by closed camps.”910
The conditions in which refugees are detained are often appalling. Detention
facilities for refugees in Hungary, for example, were reported to lack heat and
other necessities; persons suffering from distress or mental disorders moreover
lack access to adequate healthcare.911 In the United States, refugees may be
detained in jails and facilities contracted through private security firms, includ-
ing institutions built to house criminals.912 Thailand came under attack from
human rights groups in 2014 for detaining asylum-seekers arriving at its borders
in conditions “which do[] not allow detainees to lie down to sleep”;913 in one
extreme case, journalists discovered 276 Rohingya refugees in two “cages”
designed for only fifteen people.914 Refugee detention facilities in Libya are
910
Cited in Amnesty International, “Hong Kong: Arbitrary Detention of Vietnamese Asylum
Seekers” (1994), at 1.
911
According to one report on the Nyírbátor detention center, “conditions are awful. Beds are
infested by bed bugs because they haven’t been fumigated properly, which is made worse
by the decision made by the directors of the camp not to replace the mattresses because of
the costly charge. As a result, people are contracting bad skin rashes and gruesome bites . . .
People are facing near freezing conditions as they sit in flip-flops and t-shirts . . . It is the
responsibility of Hungarian authorities to clothe people, but they refuse to help”: N. Ilsley,
“HRW says Refugees ‘Treated Like Criminals’ in Hungarian Detention Center,”
Newsweek, Dec. 3, 2015, quoting Lydia Gall, Human Rights Watch researcher for
Eastern Europe and the Western Balkans.
912
From October 2015 to June 2018, “ICE paid contractors operating the 106 detention
facilities . . . more than $3 billion . . . Despite documentation of thousands of deficiencies
and instances of serious harm to detainees that occurred at these detention facilities, ICE
rarely imposed financial penalties”: Office of the Inspector General, US Homeland
Security, “ICE Does Not Fully Use Contracting Tools to Hold Detention Facility
Contractors Accountable for Failing to Meet Performance Standards,” Jan. 29, 2019. It
was earlier reported by the American Civil Liberties Union that “[b]eyond increasing
direct contracts with private prisons, [Department of Homeland Security] officials have
been trying to buy more county jail space for immigration detention purposes. In at least a
few cases, ICE is seeking to contract with a county which in turn will subcontract with a
for-profit prison company. There is even discussion of waiving ICE national detention
standards and 2003 Prison Rape Elimination Act requirements for these beds. As one
official put it, ‘They’re scraping the bottom looking for beds’”: American Civil Liberties
Union, “ACLU calls on HSAC to urge immediate moratorium on expansion of immigra-
tion detention,” Oct. 26, 2016, at 4.
913
“According to a 2014 Amnesty International report, official regulations in Thailand allow
for cell sizes in detention centres to be a minimum of 1.19 metres per person . . . [Human
Rights Watch] has also reported on the abysmal conditions in detention centres, ‘includ-
ing severe overcrowding, putrid sanitation, and an atmosphere of violence.’ Detainees
have repeatedly complained of overcrowding and extremely poor hygiene”: Global
Detention Project, “Thailand Immigration Detention Profile,” Feb. 2016, at 2–3.
914
“At the time, Thai authorities acknowledged that they were ‘aware of the overcrowding
issue at the existing immigration facilities’ and that alternative arrangements were being

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 480 4 righ t s of r efug ee s ph y sica lly p r es en t

similarly overcrowded, unsanitary, and without sufficient food or medical

care.915 Overcrowding, disease, and poor sanitation in Malaysia’s detention
centers resulted in 118 deaths over a two-year period.916 Conditions in
Australia’s offshore detention camps on Papua New Guinea’s Manus Island,
much of which have been intentionally withheld from the public eye,917 were
repeatedly condemned by UN officials.918 The severity of circumstances at
Manus Island led not only to a settlement of A$70 million for those held

made. According to the journalists, the head of Thailand’s parliamentary Border Affairs
Committee commented that ‘The conditions you have seen would even be difficult for
animals’”: Global Detention Project, “Thailand Immigration Detention Profile,” Feb.
2016, at 3.
915
“Conditions of detention in Libya have long been a source of deep concern to the
international community. The former director of the Italian secret service told the
Italian Parliament in 2005 that ‘undocumented migrants in Libya are caught like dogs’
and placed in overcrowded facilities that are in such a poor state of repair that ‘policemen
must wear a dust mask on the mouth because of the nauseating odours’ . . . Since the onset
of civil war, conditions of detention have worsened as a result of fighting in all parts of the
country and the related breakdown in public services. Recurrent criticisms include
overcrowding, scarcity of food and drinking water, limited or inexistent access to health
(leading to the spread of skin diseases and other medical problems), lack of access to fresh
air, and poor hygienic conditions. Observers have said that the situation in immigration
detention facilities is considerably worse than that of facilities used by the Judicial Police”:
Global Detention Project, “Libya Immigration Detention Profile,” Feb. 2015.
916
Causes of death were provided for only 68 of the deceased: “Pneumonia and lung
infections led to 19 deaths, at least 10 were the result of various heart-related conditions,
and five died from the bacterial disease leptospirosis, which is often spread through the
urine of infected animals, including rodents. Sepsis, or septic shock, a condition usually
triggered by other illnesses, claimed 21 victims, including some who were suffering from
pneumonia or leptospirosis, various forms of tuberculosis led to three deaths, and one
Filipino woman committed suicide”: A. Ananthalakshmi, “More than 100 Die in
Malaysian Immigration Detention Camps in Two Years,” Reuters, Mar. 30, 2017.
917
Since the adoption of its more militarized Operation Sovereign Borders, the Australian
government has engaged in what critics term “an increasing culture of secrecy”: “The
government ended its weekly briefings and began to invoke ‘on-water matters’ in refusing
to answer questions about incidents or policy decisions. Journalists had not been allowed
inside the centres for some time, but in January 2014 the Nauruan government, which
would become increasingly hostile to media attention on issues with its facility, raised the
application fee for a media visa to the country to a non-refundable $8,000. In 2015 the
government introduced the Border Force Act which made the disclosure of information
about conditions inside offshore centres by employees punishable with up to two years in
prison”: H. Davidson, “Offshore Detention: Australia’s Recent Immigration History a
‘Human Rights Catastrophe,’” Guardian, Nov. 12, 2016.
918
See e.g. F. Crépeau, “UN Special Rapporteur on the human rights of migrants concludes
his official visit to Australia, Nov. 1–18” (2016); UNHCR, “Submission by the Office of the
United Nations High Commissioner for Refugees on the Inquiry into the serious allega-
tions of abuse, self-harm and neglect of asylum-seekers in relation to the Nauru Regional
Processing Centre, and any like allegations in relation to the Manus Regional Processing
Centre,” referred to the Senate Legal and Constitutional Affairs Committee, Nov. 15, 2016.

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there,919 but also to the filing of a complaint with the International Criminal Court
that Australia’s immigration program amounted to a crime against humanity.920
As the complaint reported in relation to those confined to the island,

Refugees and asylum seekers are detained behind razor wire, and staff
crowd 50 people to a tent, with the majority of men sleeping in bunk-beds.
The top bunks press against the ceiling of the tent; one individual recalls it
being so hot that people “could not sleep there” and instead slept on the
floor . . . In 2014, a spokesman for the Refugee Action Coalition noted that
in the Manus camps, “[s]kin and fungal infect[ion]s are endemic. The
toilets are often blocked and have to be hosed out, so sewage gets on the
floor. If the tide is high, the raw sewage also comes back up. The floors in
all the facilities were constantly wet and there was a strong smell of sewage
around the centre at all times.”921

Of particular concern, children – both the dependents of adults seeking

protection, and child refugees themselves – may not be exempted from deten-
tion regimes. At the peak of Australia’s practice in mid-2013, for example,
nearly 2,000 refugee children were being detained in closed facilities, for an
average period of over fourteen months.922 Mexico has also drawn criticism for
confining unaccompanied children in facilities shared with adults pending the
processing of their claims,923 while the United Kingdom reportedly paid over
919
B. Doherty, “Manus Island: Judge Approves $70m Compensation for Detainees,”
Guardian, Sept. 5, 2017.
920
“Australian governments have attempted to contract-out the detention facilities, and
thereby avoid responsibility, by concluding agreements with Nauru and Papua New
Guinea and by contracting with private corporations to run the facilities. Nevertheless,
that liability for international crimes can be traced not only to direct perpetrators on the
ground, but also to public officials and corporate officers and directors. Such individuals
are participating and essentially contributing to an overall common plan. That plan
includes a critical element of criminality. The structures of government and corporate
effective control over the camps further establish the superior responsibility of high-level
public officials and corporate officers”: J. Cavallaro et al., Communiqué to the Office of the
Prosecutor of the International Criminal Court under Article 15 of the Rome Statute, “The
Situation in Nauru and Manus Island: Liability for crimes against humanity in the
detention of refugees and asylum seekers,” Feb. 14, 2017, at 6.
921
Ibid. at 41–42. As Papua New Guinea prepared for the closure of the facility in the wake of
a ruling as to its illegality, Australia remained firm in its insistence that none of those
detained would be resettled in its territory. However, the refusal of over 600 refugees to
leave the facility amid increasing attacks by the local community culminated in a nearly
month-long standoff followed by their forcible removal: D. Cave, “Closing Manus Island
Center would Hurt Refugees, Australia is told,” New York Times, Oct. 25, 2017;
B. Doherty, “Manus Detention Centre Cleared of all Refugees and Asylum Seekers,”
Guardian, Nov. 24, 2017.
922
M. Bochenek, “Australia’s Detaining of Migrant Children Denounced Again,” Sydney
Morning Herald, Apr. 9, 2015.
923
Human Rights Watch, “Closed Doors: Mexico’s Failure to Protect Central American
Refugee and Migrant Children,” Mar. 2016, at 80–91; see also V. Fernández, “On the

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£1 million to a group of forty children – some of whom were detained with

adults – whose ages it failed to recognize.924 Detention of children in other
areas has become the rule rather than the exception: in Malaysia, Indonesia,
and Thailand, refugee children are detained for indefinite and sometimes
lengthy periods without judicial oversight. Children are detained in cells
housing dozens of unrelated adults, frequently separated from their family
members along age and gender lines, with cramped and substandard sleeping
facilities, no privacy from unrelated adults, little or no educational opportun-
ities, little or no recreational space or activities, extremely limited access to
healthcare and at risk of sexual and other forms of violence and exploitation.925
They are held twenty-four hours a day, seven days a week in overcrowded
conditions with inadequate hygiene and lack of access to adequate and timely
medical treatment, leading to a number of reports of children in detention
dying from treatable illnesses in recent years.
Beyond penalties imposed directly on refugees themselves, many countries
also impose criminal or other sanctions on persons or organizations respon-
sible for assisting them to seek protection. Under Canadian law, any person or
organization transporting a non-citizen contrary to visa requirements is liable
to prosecution under the Protecting Canada’s Immigration System Act926
(though in practice, the government has limited prosecution to those involved
in commercial operations).927 A similar policy underlay Italy’s arrest, deten-
tion, and prosecution of seven Tunisian fishermen for rescuing forty-four

Way to the US, Children Seeking Asylum are often put in Mexico’s Detention Centers,”
Public Radio International, Jan. 3, 2017.
924
D. Taylor, “Council Wrongly Classed Asylum Seeker Children as Adults,” Guardian, May
16, 2013.
925
Save the Children and Asia Pacific Refugee Rights Network, “Unlocking Childhood:
Current Immigration Detention Practices and Alternatives for Child Asylum Seekers
and Refugees in Asia and the Pacific,” May 2017, at 2.
926
“No person shall organize, induce, aid or abet the coming into Canada of one or more
persons knowing that, or being reckless as to whether, their coming into Canada is or
would be in contravention of this Act”: Immigration and Refugee Protection Act 2001, at
s. 117(1) (as amended Oct. 18, 2017). A previous version of this law was invalidated in
2015: R v. Appulonappa, [2015] SCC 59 (Can. SC, Nov. 27, 2015), at [85]. Fines of up to
$1,000,000 and/or life imprisonment are possible for breach of the law: ibid. at s. 117(3).
There is no exemption from this provision if the persons transported are genuine refugees;
such factors as motive and profit are relevant only to the penalty to be imposed: ibid. at s.
121. The refugees themselves, however, may claim the benefit of s. 133 of the Act, which
provides that “[a] person who has claimed refugee protection, and who came to Canada
directly or indirectly from the country in respect of which the claim is made, may not be
charged with an offence . . . in relation to the coming into Canada of the person, pending
disposition of their claim for refugee protection or if refugee protection is conferred.”
927
In 2007, smuggling charges were brought against a refugee aid worker for assisting twelve
Haitian nationals, including children, who wished to claim refugee status in Canada. The
charges were dropped less than two months later following public outcry by former
government officials and local and international rights groups: Canadian Council for

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 4.2 f r ee d o m f r o m d e t en t i o n an d p e n a l i z a t i o n 483

refugees from a sinking dinghy off the coast of Lampedusa.928 Another com-
mon practice is for destination countries to impose sanctions against airlines
and other commercial carriers that transport undocumented refugees to asy-
lum states.929 Australian law imposes fines of up to A$18,000930 and provides
for no exemption for the transport of those whose protection claims are found
to be genuine;931 furthermore, the cost of detaining refugee claimants may be
passed on to the owner of the vessel on which they arrived.932 While the Carrier
Sanctions Directive encourages EU member states not to impose penalties for
the transport of persons seeking protection, its mandated fines for bringing
undocumented aliens to Europe933 give rise to situations in which “carrier

Refugees, “‘Proud to Aid and Abet Refugees’ Campaign,” Jan. 2008; see also U. Gandhi,
“Crown Drops Human Smuggling Charges,” Globe and Mail, Nov. 9, 2007.
928
P. Popham, “Tunisian Fishermen Face 15 years’ Jail in Italy for Saving Migrants from
Rough Seas,” Independent, Sept. 19, 2007. “The two captains and their crew members were
arrested and criminally charged with facilitating illegal immigration and resisting public
officers after they landed at Lampedusa to disembark the rescued migrants . . . In
November 2009 the captains and their five crew members were acquitted by the Court
of Agrigento of the charges relating to facilitating illegal immigration, but the two captains
were convicted of charges of resisting a public officer and committing violence against a
warship . . . in connection with their refusal to turn their boats around and not enter the
harbour. The captains were required to forfeit their fishing vessels and were sentenced to
prison”: N. Frenzen, “Italian Appeals Court Acquits 2 Tunisian Fishing Boat Captains who
Rescued Migrants in 2007,” Migrants at Sea, Sept. 29, 2011.
929
“Carrier sanctions, in their broader meaning, consist of three components: first, the duty
of a carrier to remove an undocumented migrant brought to a country; second, the duty of
the carrier to bear all expenses (including detention or accommodation) until the undocu-
mented migrant is removed; and, third, a fine imposed on the carrier for bringing an
undocumented migrant to the frontier of a state”: T. Rodenhäuser, “Another Brick in the
Wall: Carrier Sanctions and the Privatization of Immigration Control,” (2014) 26(2)
International Journal of Refugee Law 223 (Rodenhäuser, “Carrier Sanctions”), at 226. A
detailed account of the ways in which carrier sanctions operate to prevent access to asylum
is found in Amnesty International, “Cell Culture: The Detention and Imprisonment of
Asylum-Seekers in the United Kingdom” (1996), at 26–37.
930
Migration Act, s. 229(2) provides for a fine “not exceeding 100 penalty units” in the event
of a conviction; in July 2015, the government increased the single penalty unit value to
A$180: E. Dale, Department of Immigration and Border Protection Notice No. 2015/28,
Oct. 23, 2015. See also A. Hirsch, “To Stop Boat Deaths, Abolish Carrier Sanctions and Let
Asylum Seekers Travel by Plane,” RightNow.org, Dec. 8, 2016.
931
Migration Act, s. 228B(2). This policy makes Australia “the only country in the world to
impose a universal visa requirement on non-citizens”: A. Hirsch, “To Stop Boat Deaths,
Abolish Carrier Sanctions and Let Asylum Seekers Travel by Plane,” RightNow.org, Dec. 8,
2016.
932
Migration Act, s. 213. This general provision does not appear to exempt those persons who
are later found to be genuine refugees or who are granted a substantive visa: see A. North
and P. Decle, “Courts and Immigration Detention: ‘Once a Jolly Swagman Camped by a
Billabong,’” (2002) 10(1) Australian Journal of Administrative Law 5.
933
EU Council Directive 2001/51/EC (June 28, 2001), supplementing the provisions of Art. 26
of the Convention implementing the Schengen Agreement of June 14, 1985, at Arts. 4(2) and

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personnel are de facto required to determine whether a person has a valid claim
for international protection.”934 This is evident in measures enacted by Austria
and France, which provide for an exemption from fines only if a protection
claim is ultimately determined to be well-founded,935 and in the Swedish
Minister of Justice’s statement that it would be “juridically impossible” to
grant the airline industry’s request for an exemption in relation to Syrian
refugees.936 In contrast, Uganda imposes penalties against only those who
knowingly carry or transport persons without valid documents; in addition, it
exempts penalties for transporting a refugee “whom [the carrier] has reason-
able grounds to believe is genuinely seeking asylum.”937

Refugee Convention, Art. 31 Refugees Unlawfully in the Country

of Refuge
1. The Contracting States shall not impose penalties, on account
of their illegal entry or presence, on refugees who, coming
directly from a territory where their life or freedom was threat-
ened in the sense of article 1, enter or are present in their
territory without authorization, provided they present them-
selves without delay to the authorities and show good cause for
their illegal entry or presence.
3. The expectation of exemption from prosecution where the person transported applies for
asylum is set by the Preamble, rather than codified in an express requirement.
934
Rodenhäuser, “Carrier Sanctions,” at 229. The European Council on Refugees and Exiles
reports that “given the discretion left to Member States by the Directive, there are
substantial differences amongst them, with some States providing for exemptions only
for those who are subsequently recognised as refugees and others providing for exemp-
tions also when the third country national is granted a subsidiary form of protection”:
S. Sirtori and P. Coelho, “Defending Refugees’ Access to Protection in Europe” (Dec.
2007), at 29.
935
In Austria, carriers may be fined up to €15,000 for transporting a foreigner without the
required travel documents; such fines may be voided, however, where the foreigner
“receives asylum or subsidiary protection or cannot be sent back to his country of origin
for reasons of non-refoulement”: European Migration Network, “Ad Hoc Query on
implementing Council Directive 2001/51/EC,” Dec. 13, 2012, at 2. Carriers are exempt
from penalties in France if the passenger submits an asylum application which is not
manifestly unfounded: ibid. at 6.
936
In response to a request from the Swedish airline industry to relax carrier liability for
transporting refugees from Syria’s neighboring countries, “Justice Minister Morgan
Johansson told Swedish Radio News that it is juridically impossible for a single country
to temporarily suspend Carriers Liability, since the basis is an EU directive”: “Swedish
Airline Industry Wants to be able to Fly Refugees to Sweden,” Radio Sweden, Sept. 10,
2015. However, one study found that Swedish authorities had imposed a total of only ten
fines at Stockholm Arlanda Airport during the preceding ten-year period, a finding which
the author attributed to a national openness to receiving immigrants generally: T. Baird,
“Carrier Sanctions in Europe: A Comparison of Trends in 10 Countries,” (2017) 19(3)
European Journal of Migration 307, 330–331.
937
Uganda Refugee Act 2006, s. 47.

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2. The Contracting States shall not apply to the movements of

such refugees restrictions other than those which are necessary
and such restrictions shall only be applied until their status in
the country is regularized or they obtain admission into
another country. The Contracting States shall allow such refu-
gees a reasonable period and all the necessary facilities to
obtain admission into another country.
Civil and Political Covenant, Art. 9(1)
Everyone has the right to liberty and security of person. No one
shall be subjected to arbitrary arrest or detention. No one shall be
deprived of his liberty except on such grounds and in accordance
with such procedure as are established by law.

Civil and Political Covenant, Art. 10(1)

All persons deprived of their liberty shall be treated with
humanity and with respect for the inherent dignity of the
human person.
Perhaps the most important innovation of the 1951 Refugee Convention is
its commitment to the protection of refugees who travel to a state party without
authorization.938 For the first time, the duty of non-refoulement was conceived
as the entitlement of all refugees, including those who arrive without permis-
sion to enter the territory of an asylum country.939 This decision to grant
protection against refoulement to all refugees, whether authorized or
unauthorized, closed the most critical protection gap that had initially
prompted the drafting of a specific duty of non-penalization.940 Because even
938
Lord Bingham has characterized Art. 31 as embodying one of the Refugee Convention’s
“three broad humanitarian aims . . . to protect refugees from the imposition of criminal
penalties for breaches of the law reasonably or necessarily committed in the course of flight
from persecution or threatened persecution”: R v. Asfaw, [2008] UKHL 31 (UK HL, May
21, 2008), at [9].
939
See Chapter 4.1.1.
940
The initial drafts of the Refugee Convention were unclear in their commitment to grant
protection against refoulement to refugees who arrived without authorization. The
Secretary-General’s draft Art. 24(1) would have guaranteed that refugees “who have
been authorized to reside [in the asylum country] regularly” would benefit from a
guarantee that states would “not . . . remove or keep [them] from [their] territory, by
application of police measures, such as expulsions or non-admittance at the frontier
(refoulement)”: United Nations, “Draft Convention,” at 46. Draft Art. 19(1) of the
French draft was essentially the same, though an exception was included to protect the
right to take measures “dictated by reasons of national security”: France, “Draft
Convention,” at 9. The language of the more general obligation, not textually restricted
to authorized refugees, was less explicit. Draft Art. 24(3) provided that “[e]ach of the High
Contracting Parties undertakes in any case not to turn back refugees to the frontiers of
their country of origin, or to territories where their life or freedom would be threatened on
account of their race, religion, nationality or political opinion”: United Nations, “Draft

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 486 4 righ t s of r e f ugee s ph y sica lly pr es en t

“irregular” refugees are now shielded from return in any manner whatsoever to
a place in which they are at risk, Art. 33 can be relied upon to counter penalties
which raise this prospect.941
Thus, for example, both Malawi’s attempt to send refugees lacking docu-
mentation back to the Democratic Republic of Congo942 and Thailand’s
continuing refusal to distinguish refugees from illegal immigrants subject to
deportation943 raise the specter of refoulement. The same is true of the policies
of such countries as Ecuador,944 Mexico,945 Spain,946 and Turkey947 to refuse
even to consider claims to refugee status which are not lodged within a fixed
timeframe after arrival. There was also a breach of the duty of non-refoulement
when Australia refused to consider the refugee claims of persons arriving by
boat in order to weed out “fake refugees,”948 or when an American court
denied protection to a refugee who arrived hidden in a metal box welded to
the bottom of a car in order to deter others from taking such a risk.949 Laws that
deny protection to refugees who have passed through other countries – for
example, Canada’s use of a “subjective fear” requirement to refuse the claims of
those who failed to seek asylum elsewhere950 or the US “firm resettlement” bar
that is actually a penalty for failure to seek protection elsewhere951 – may also
result in the failure to identify and protect genuine refugees.952 To the extent
such practices expose persons who are in fact refugees (whether or not recog-
nized as such) to the risk of return to persecution, they violate the duty of non-
refoulement.953
Yet if only penalties that force refugees back to the risk of persecution were
prohibited, there would still be a risk of unfairness since refugees often have
few options but to enter an asylum country without valid documentation or

Convention,” at 45 (draft Art. 24(3)). The French draft was identical, but added a
qualification regarding the permissible scope of relevant political opinions (“provided
these opinions are not contrary to the principles of the United Nations as set forth in the
Preamble to the United Nations Charter”): France, “Draft Convention,” at 9 (draft Art.
19(3)).
941
See UNHCR Executive Committee Conclusion No. 15, “Refugees Without an Asylum
Country” (1979), at [(i)]: “While asylum-seekers may be required to submit their asylum
request within a certain time limit, failure to do so, or the non-fulfilment of other formal
requirements, should not lead to an asylum request being excluded from consideration.”
942
See text at note 834. 943 See text at note 829. 944 See text at note 853.
945
See text at note 851. 946 See text at note 852. 947 See text at note 853.
948
See note 900. 949 See text at note 901. 950 See text at note 848.
951
See text at note 850.
952
Similarly, the exclusion of a refugee claimant from eligibility for a protection visa on
grounds that he had provided false identity documents to Australian authorities (AIB16 v.
Minister for Immigration and Border Protection, [2017] FCAFC 163 (Aus. FFC, Oct. 16,
2017)) raises precisely the specter of refoulement.
953
Persons are refugees when they meet the requirements of the refugee definition in fact, not
simply when they are recognized as such: UNHCR, Handbook, at [28]. See Chapter 3.1 at
note 28.

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 4.2 f reedom from detention a nd penalization 487

otherwise in breach of its migration laws.954 As noted by the Constitutional

Court of South Africa, “[a]sylum seekers do not arrive only where they should,
nor do they always have the opportunities and agency to claim what they
should. This, both international refugee law and international human rights
law recognise.”955 The need for Art. 31 is perhaps greater today than ever
before since, as Costello points out, states have both increased the range of
general deterrent measures and subjected unauthorized entrants “to a range of
diverse criminal and repressive measures.”956 Thus, as Lord Justice Simon
Brown observed in the Adimi case,

The need for Article 31 has not diminished. Quite the contrary. Although
under the Convention subscribing states must give sanctuary to any
refugee who seeks asylum (subject only to removal to a safe third country),
they are by no means bound to facilitate his arrival. Rather they strive
increasingly to prevent it. The combined effect of visa requirements and
carrier’s liability has made it well nigh impossible for refugees to travel to
countries of refuge without false documents . . .
Self-evidently, [the purpose of Art. 31] was to provide immunity for
genuine refugees whose quest for asylum reasonably involved them in
breaching the law.957

While Art. 31 thus embodies a principled commitment to ensuring that

refugees are not penalized for doing what international law authorizes –
namely, seeking protection – that commitment is codified in a manner that
advances a second, more instrumentalist, goal. States valued an orderly system
for the processing of refugee claims, and realized that the threat of prosecution
954
Courts have taken the view that Art. 31 is a response to “the difficulty of gaining access to a
friendly shore. Escapes from persecution have long been characterized by subterfuge and
false papers . . . Thus it was that Article 31(1) found its way into the 1951 UN Convention”:
R v. Uxbridge Magistrates’ Court, ex parte Adimi, [1999] 4 All ER 520 (Eng. HC, July 29,
1999), per Simon Brown L.J., at 523. See also Attorney General v. Refugee Council of New
Zealand Inc., [2003] 2 NZLR 577 (NZ CA, Apr. 16, 2003), at [6]: “In practice, refugee status
claimants often arrive at a border without appropriate documentation or with documen-
tation which appears to be false. This may be because they have fled without papers, or are
travelling on forged documents, or have destroyed their travel documents when approach-
ing the border in order to impede their being removed on arrival”; and Akinmade v.
Immigration and Naturalization Service, 196 F. 3d 951 (US CA9, Nov. 5, 1999), finding
that “we recognize that a genuine refugee escaping persecution may lie about his citizen-
ship to immigration officials in order to flee his place of persecution or secure entry into
the United States.” The court adopted a helpful distinction between the (inappropriate and
illegal) use of false documents falsely to secure recognition of refugee status, and the
(understandable and lawful) use of false documents to escape danger or enter an asylum
country: ibid.
955
Alex Ruta v. Minister of Home Affairs, [2018] ZACC 52 (SA CC, Dec. 20, 2018), at [50].
956
Costello, “Article 31,” at 7.
957
R v. Uxbridge Magistrates Court, ex parte Adimi, [1999] 4 All ER 520 (Eng. HC, July 29,
1999), per Simon Brown L.J. at 523, 527.

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 488 4 ri g h t s of r e f u g e es ph y s i c a l l y p r e s e nt

and punishment for the breach of general immigration laws would undoubt-
edly deter many unauthorized refugees from seeking to regularize their status.
As observed in the Secretary-General’s background study,

In actual fact, the [refugee], since he cannot enter the territory of a State
lawfully, often does so clandestinely. He will then lead an illegal existence,
avoiding all contact with the authorities and living under the constant threat of
discovery and expulsion. The disadvantages of this state of affairs, both for
himself and for the country on whose territory he happens to be, are
obvious.958

With this concern in mind, Art. 31’s duty of non-penalization was framed with
an explicit quid pro quo. Of the view that “[i]t would be in keeping with the
notion of asylum to exempt from penalties a refugee, escaping from persecu-
tion, who after crossing the border clandestinely, presents himself as soon as
possible to the authorities of the country and is recognized as a bona fide
refugee,”959 the exemption from penalization is framed with two critical
limitations. First, it requires good faith on the part of the refugee: he or she
must come forward in a timely way and submit to the asylum state’s procedure
for regularization of status. Second, the refugee must provide a credible
explanation for why, in his or her particular circumstances, illegal entry or
presence was required in order to secure access to protection.

4.2.1 Beneficiaries of Protection

Because the risks associated with penalties on account of illegal entry or presence
arise immediately upon arrival, the drafters agreed that no more than physical
presence is required to invoke the protections of Art. 31.960 The provisional
benefit of this right to be exempted from penalties on account of illegal entry or
presence, including from detention or other restrictions on freedom of move-
ment,961 must therefore be granted to all persons who claim refugee status, until
and unless they are finally determined not to be Convention refugees:962

958
United Nations Department of Social Affairs, “A Study of Statelessness,” UN Doc. E/1112,
Feb. 1, 1949 (United Nations, “Statelessness”), at 20.
959
United Nations, “Memorandum by the Secretary-General to the Ad Hoc Committee on
Statelessness and Related Problems,” UN Doc. E/AC.32/2, Jan. 3, 1950 (Secretary-General,
“Memorandum”), at 46.
960
See Chapter 3.1.2. In the context of prosecution for illegal entry or presence, therefore, the
accused person “must provide sufficient evidence in support of his claim for refugee status
to raise the issue, but thereafter the prosecution bears the burden of proving – to the
criminal standard – that the defendant was not a refugee”: R v. Mateta, [2013] EWCA
Crim 1372 (Eng. CA, July 30, 2013), at [9].
961
The beneficiary class for Art. 31(2) is that defined in Art. 31(1): see Chapter 4.2.4 at note 1146.
962
See e.g. Dec. No. 179/2011(Dmk. SC, Feb. 3, 2012); Dec. Nos. BO2913–BO2915, ECLI:NL:
HR:2011:BO2913 (Neth. SC, Mar. 8, 2011); Arse v. Minister of Home Affairs, [2010] ZASCA 9

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 4. 2 f r e ed o m f r o m d et e n t i o n a n d p en a l i za t i o n 489

That Article 31 extends not merely to those ultimately accorded refugee

status but also to those claiming asylum in good faith (presumptive
refugees) is not in doubt.963
Indeed, the English High Court of Justice determined that states must put in
place procedures to ensure that Art. 31 protection is afforded even to “travel-
lers recognizable as refugees, whether or not they have actually claimed
asylum.”964 Three preliminary questions nonetheless arise regarding when
this right is engaged.
First, what of situations in which an asylum country externalizes its border
control regime such that an immigration penalty can be imposed on a refugee
even before physical arrival? While the language of Art. 31(1) speaks of
refugees who “enter or are present in their territory without authorization,”
Noll sensibly suggests that “the contemporary statecraft of extraterritorial
border control” – something not contemplated when the Convention was
drafted – is an element of context that must be taken into account in interpret-
ing the provision.965 Given both the drafters’ unambiguous intention that
immigration penalties not be allowed effectively to negate access to protec-
tion966 and their recognition that exemption from penalization should apply as
soon as a refugee was physically present at the border,967 Art. 31 should be
conceived in a purposive way that recognizes that states have often changed the
way they define the “border” of state territory.968 To do otherwise would

(SA SCA, Mar. 12, 2010); Bula v. Minister of Home Affairs, [2011] ZASCA 209 (SA SCA, Mar.
28, 2012). “Admittedly there may be an interim period between the claim to refugee status and
recognition as a refugee when it may beg the question to say that the claimant is entitled to be
treated as a refugee. Equally, however, it will not be possible during this period to say that the
claimant is not entitled to be treated as a refugee. In those circumstances the risk of an
undeserved penalty cannot be disregarded”: Attorney General v. E, [2000] 3 NZLR 257 (NZ
CA, July 11, 2000, appeal to PC refused at [2000] 3 NZLR 637).
963
R v. Uxbridge Magistrates Court, ex parte Adimi, [1999] 4 All ER 520 (Eng. HC, July 29,
1999), per Simon Brown L.J., at 527. See also Khaboka v. Secretary of State for the Home
Department, [1993] Imm AR 484 (Eng. CA, Mar. 25, 1993), at 489.
964
R v. Uxbridge Magistrates Court, ex parte Adimi, [1999] 4 All ER 520 (Eng. HC, July 29,
1999), per Simon Brown L.J., at 533.
965
G. Noll, “Article 31,” in A. Zimmermann ed., The 1951 Convention Relating to the Status of
Refugees and its 1967 Protocol: A Commentary 1243 (2011) (Noll, “Article 31”), at 1247.
With regard to the importance of interpreting text in the light of context, see Chapter 2.2.
966
See text at note 959.
967
See text at notes 962–963. The Full Federal Court of Australia has affirmed that “lawful
presence” is not required to benefit from Art. 31: NBMZ v. Minister for Immigration and
Border Protection, [2014] FCAFC 38 (Aus. FFC, Apr. 9, 2014), at [78].
968
Costello seems to adopt the more literal view, writing that “[i]t is now well-established that
non-refoulement applies extraterritorially, as long as States are exercising ‘jurisdiction.’
However, the formulation of Article 31 is different. The formulation ‘enter . . . their
territory’ seems only to embrace a narrow range of extraterritorial acts where the State
encounters refugees seeking to enter. However, beyond some specific contexts where the
refugee is unambiguously entering the State in question, Article 31 does not have the

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 490 4 r igh ts of r efug ee s ph ys ica lly p r es en t

encourage states to avoid their obligations under Art. 31 by means of subter-

fuge – an option surely at odds with the duty to promote a treaty’s effectiveness
conceived in line with its object and purpose.969
A second issue is whether Art. 31 immunizes refugees in transit from
penalties imposed by a state through which they pass, rather than by the
destination country. In the two leading cases, for example, false travel docu-
ments of refugees in transit to North America were detected by officials at
Heathrow Airport, resulting in denial of boarding and prosecution in Britain
for use of fraudulent travel documents.970 The reviewing courts sensibly
determined that a purposive construction of the eligibility requirements for
Art. 31 required immunity from penalization in such transit cases.971 The basic
point is that Art. 31 – a provision intended to enable refugees to exercise their
right to seek asylum – should be construed in a manner that takes account of
the practical logistics of modern travel by air.972 The recognition that Art. 31
applies to safeguard refugees in transit follows also from the fact that it
prohibits penalties not just on account of illegal entry (which may not describe
the situation of those purely in transit), but also for illegal presence. Courts
elsewhere have embraced the British approach to this question.973

extraterritorial reach of Article 33 (non-refoulement)”: Costello, “Article 31,” at 23–24.

Costello does not define the exceptional “specific contexts where the refugee is unambigu-
ously entering the State.” On the other hand, she does indicate that Art. 31 applies where a
state acts “extraterritorially in the vicinity of borders” (ibid. at 23) and notes that the
(European) prohibition of collective expulsion’s applicability on the high seas may suggest
that “those who are interdicted should be equated with those who have entered” (ibid.
at 24).
969
See Chapter 2.3. By way of analogy, the High Court of Australia determined that a duty of
procedural fairness applied to detention at an “excised offshore place” because to “draw [a
distinction] between destruction, defeat or prejudice of a right, on the one hand, and a
discretionary power to confer a right, on the other, proceeds from too narrow a conception
of the circumstances in which an obligation to afford procedural fairness might arise”:
M61/2010 and M69/2010 v. Commonwealth of Australia, [2010] HCA 41 (Aus. HC, Nov.
11, 2010), at [75].
970
R v. Uxbridge Magistrates Court, ex parte Adimi, [1999] 4 All ER 520 (Eng. HC, July 29,
1999) and R v. Asfaw, [2008] UKHL 31 (UK HL, May 21, 2008).
971
This approach was affirmed in R v. Mateta, [2013] EWCA Crim 1372 (Eng. CA, July 30,
2013), at [16]. The Asfaw and Adimi precedents were approved in MIF v. International
Protection Appeals Tribunal, [2018] IECA 36 (Ir. CA, Feb. 19, 2018), at [26].
972
R v. Asfaw, [2008] UKHL 31 (UK HL, May 21, 2008), at [12].
973
Costello cites Dec. No. KKO:2013:21 (Fin. SC, Apr. 5, 2013) and Dec. Nos. BY4310, ECLI:
NL:HR:2013:BY4310 and BY4238, ECLI:NL:HR:2013:BY4238 (Neth. SC, May 28, 2013):
Costello, “Article 31,” at 26–27. In line with this optic, the Netherlands Supreme Court has
in particular determined that refugees need only admit their use of false documents once
they have reached their intended destination: Dec. No. BP7855, ECLI:NL:HR:2011:
BP7855 (Neth. SC, July 5, 2011), at [16]. But despite acknowledging that “[i]mposing
penalties . . . in a situation where the primary intent is to leave the transit country obviates
the logic of Art. 31,” Noll adopts the more conservative view that “Art. 31 para. 1 does not

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 4.2 f r e e d o m f r o m d e t en t i o n an d p e n a l i z a t i o n 491

A third question is whether exemption from penalization is a right inhering

only in persons ultimately found to qualify as “refugees” or rather, as the
English High Court put it, “to those claiming asylum in good faith (presump-
tive refugees).”974 While some courts have taken the view that penalties may be
retroactively applied if refugee status is not recognized,975 this approach sets
too high a bar. It presupposes that a refugee should be able to self-evaluate vis-
à-vis the complex criteria of the refugee definition and only seek asylum if
convinced that his or her circumstances map onto that legal standard.976
Related to this, it presumes that state parties embrace a common understand-
ing of all components of the refugee definition, which they do not. Most
fundamentally, though, risk of retroactive imposition of penalties if a protec-
tion claim ultimately fails would disincline those seeking protection from
coming forward and declaring their presence to authorities – thus working
against the drafters’ intention of ensuring that everyone submits to authorities
rather than going underground.977
Art. 31 does not, however, prohibit the imposition of immigration penalties
on all refugees. Because of the drafters’ instrumentalist orientation,978 protec-
tion against penalization for illegal entry or presence is only granted to those
refugees who meet two conditions. First, they must take affirmative steps to
make themselves known to officials of the asylum country within a reasonable
period of time. And second, they must satisfy authorities that their breach of
immigration laws was necessitated by the urgency of their search for protec-
tion. If either of these requirements is not met, there is no exemption from
forms of penalization that fall short of refoulement.979

go as far as to cover the use of [false or fraudulent] travel documents for onward travel”:
Noll, “Article 31,” at 1260, 1266.
974
R v. Uxbridge Magistrates Court, ex parte Adimi, [1999] 4 All ER 520 (Eng. HC, July 29,
1999), per Simon Brown L.J. at 527; affirmed in R v. Bei Bei Wang, [2005] EWCA Crim.
293 (Eng. CA, Feb. 3, 2005), at [6]. This proposition was conceded by counsel for the
government in the House of Lords decision of R v. Asfaw, [2008] UKHL 31 (UK HL, May
21, 2008), at [7]. Costello opines that the application of Art. 31 to those claiming asylum in
good faith is now widely regarded “as well-settled”: Costello, “Article 31,” at 15.
975
The “good cause” requirement was more explicitly invoked by the New Zealand High
Court to find that the benefit of Art. 31(1) accrues only to refugees who are ultimately able
to prove their claim to Convention refugee status: Jiao v. Refugee Status Appeals Authority,
[2002] NZAR 845 (NZ HC, July 29, 2002). See also R v. Liliane Makuwa, [2006] EWCA
Crim 175 (Eng. CA, Feb. 23, 2006), at [20], finding that Art. 31 protection was owed to “a
refugee . . . not simply . . . a person who has claimed asylum.” Austria and France exempt
refugees from penalization only if and when they are formally assessed to qualify for
refugee status: See text at note 935.
976
Costello thus sensibly suggests that Art. 31 protection is owed not only to persons
ultimately determined not to be refugees, but also to those whose claims are determined
to be inadmissible: Costello, “Article 31,” at 15–17.
977
See text at notes 980–981. 978 See text at notes 958–959.
979
Even permissible penalization must not, however, cause refugees to be “pushed back into
the arms of their persecutors”: see Chapter 4.1.2.

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 492 4 ri g h t s of r e f u g e es ph y s i c a l l y p r e s e nt

4.2.1.1 Presentation to Authorities within a Reasonable Period

of Time
The first of the two eligibility criteria is the more straightforward. Art. 31
provides that refugees must “present themselves without delay to the author-
ities.” The goal of this clause is to establish an incentive for unauthorized
entrants to make their protection claims within the framework established by
the asylum state:
The requirement for a refugee to present himself to authorities without
delay is quite specifically designed to ensure that refugees regularize their
position and obtain official assistance rather than proceeding by illegal
stratagems and using the illegal services of shady agents.980

As such, only refugees who come forward of their own initiative, thereby
demonstrating their good faith, are immune from penalization for breach of
immigration laws.981 Exemption from penalization should not, of course, be
denied to a refugee who mistakenly reports to officials of the wrong level or
branch of government. For example, an asylum-seeker who advises officials of
the city where he is staying of his situation has discharged his duty to present
himself to “the authorities,” even if only national authorities have jurisdiction
to regulate immigration or refugee protection.982 Nor should exemption be
withheld from refugees who are prevented from coming forward to authorities,
for example because their movements are tightly controlled by smugglers or
traffickers.983 In neither of these cases is there any evidence of bad faith on the
part of the refugee.
On the other hand, the duty to present oneself to authorities in order to
claim Art. 31 protection is not usually met by an individual who claims refugee
status only after being apprehended or detained by authorities,984 as there
980
R v. Asfaw, (2008) UKHL 31 (UK HL, May 21, 2008), at [113].
981
“It is fairly obvious that authorities have a basic interest in the early identification of aliens
lacking authorization for entry or presence as refugees. Article 31, para. 1 provides an
incentive for those aliens seeing themselves as refugees to reveal themselves, and, conse-
quently, renders the control of the movements of such aliens more effective. The criterion
features an element of voluntary subjection to the authorities of the State of destination”:
Noll, “Article 31,” at 1259.
982
Indeed, the Belgian representative clearly considered that local authorities were the
officials who ought logically to be approached by refugees who had entered without
authorization: Statement of Mr. Herment of Belgium, UN Doc. E/AC.32/SR.40, Aug. 22,
1950, at 6.
983
Pest Central District Court Dec. No. 7.B.VIII.20.776/2013/34 (Hun. DC, Sept. 11 and Dec.
3, 2013), cited in Costello, “Article 31,” at 27.
984
At the second session of the Ad Hoc Committee, the Belgian representative voiced his
concern about the logic of exemption from immigration penalties in the case of a refugee
who “[t]he moment he was discovered . . . could present himself to the local authorities,
explaining the reasons he had taken refuge in that territory”: Statement of Mr. Herment of
Belgium, UN Doc. E/AC.32/SR.40, Aug. 22, 1950, at 6. The French representative replied

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 4.2 f reedom from detention a nd penalization 493

would in such a case be no good faith submission to authorities on the part of

the refugee.985 As Grahl-Madsen observed, however, there is an interrelation-
ship between the volitional and temporal components of the duty to come
forward.986 Since exemption from penalization is owed so long as the refugee
presents himself “without delay,” the benefit of Art. 31 should not be denied in
circumstances where a refugee is arrested or detained before he or she could
reasonably have been expected to seek to regularize status with authorities.987
In general, unless the refugee has truly “been in the territory a long time”988
before presenting herself to authorities,989 the duty to come forward “without

that “in the case mentioned by the Belgian representative, the act was no longer voluntary,
since the refugee who had entered illegally had been brought before the authorities by the
police who discovered him. The refugee could therefore no longer benefit by the provi-
sions of article [31]”: Statement of Mr. Juvigny of France, ibid. at 7. See also Statement of
Mr. Henkin of the United States, ibid.
985
Exemption from penalties was said to be contingent upon “a voluntary act. A person who
presented himself to the authorities of a country after crossing its frontiers without
authorization was performing a voluntary act”: Statement of Mr. Juvigny of France, UN
Doc. E/AC.32/SR.40, Aug. 22, 1950, at 7. See also Statement of Mr. Winter of Canada,
ibid.: “If a refugee presented himself to the authorities involuntarily, namely, only when he
had been detained, he would naturally come under the law of the country.” As Noll writes,
“the present criterion is linked to the refugee’s genuine intent, a form of good faith. The
refugee’s conduct and due diligence serve as indications of such intent”: Noll, “Article 31,”
at 1259.
986
Grahl-Madsen, Commentary, at 176. This approach was embraced by the Supreme Court
of Norway, which held that “assessment of whether the refugee had good cause for his
infractions must also apply to the time frame of the violation. In cases involving the
presentation of forged document to passport control especially, this assessment would, in
practice, easily merge with the assessment of whether the person has informed authorities
‘without delay’”: A v. Public Prosecuting Authority, Case No. 2014/220, HR-2014-01323-A
(Nor. SC, June 24, 2014), at [16].
987
See R v. Uxbridge Magistrates Court, ex parte Adimi, [1999] 4 All ER 520 (Eng. HC, July 29,
1999), per Simon Brown L.J. at 528–529, indicating that the requirement of a “voluntary
exonerating act” ought not to be applied in order to deny the protection of Art. 31 to a
person whose “intention was to claim asylum within a short time of his arrival,” but who
was detained by authorities virtually as soon as he arrived in the asylum state.
988
Statement of Mr. Juvigny of France, UN Doc. E/AC.32/SR.40, Aug. 22, 1950, at 5. Indeed,
it is arguable that even a refugee whose prolonged illegal presence is the result of fear or
trauma might still qualify for the benefit of Art. 31. “There is force in the applicant’s
argument that to employ . . . the bright line of safe entry as the point at which a refugee
must be sufficiently composed and confident to trust public officials, when in terms of the
Convention his qualification for that status derives from the reverse experience, could
work injustice”: Ghuman v. Registrar of the Auckland District Court, [2003] NZAR Lexis
49 (NZ HC, Dec. 16, 2003), at [63].
989
It is important not to conflate ineligibility for exemption from penalties under Art. 31 with
ineligibility for refugee status. For example, the facts of a case that came before the
Canadian Federal Court – involving a Coptic Christian from Egypt who had been in
Canada lawfully for more than six months, and who filed her asylum claim only three
weeks before her lawful status ended – suggest an instance in which Art. 31 protection
would not be owed because the applicant did not come forward “without delay.” The view

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 494 4 righ t s of r ef ug ee s ph y sica lly p r es en t

delay” amounts to a reasonableness requirement.990 The flexible language of

the Convention requires a non-mechanistic assessment of bona fides, with the
standard necessarily varying from person to person.991 A more generous
interpretation is appropriate in the case of, for example, refugees who face
linguistic or cultural barriers, who are uncertain about how best to seek
protection, or who are traumatized or otherwise not in a position immediately
to make their need for protection known.992 As noted by the Supreme Court of
Norway,

The protection objective behind Article 31 . . . indicates [the need for] a

more concrete assessment of what constitutes “without delay” in each
individual case. In this assessment, one must take into account not only
the refugee’s circumstances, objectively speaking, but also how the refugee,

of the Court that refugee status might be denied altogether because these facts suggested
an absence of “subjective fear” is, however, legally unwarranted: Mary George v. Minister of
Citizenship and Immigration, [2014] FC 535 (Can. FC, June 3, 2014), at [10]. On the
reasons that “subjective fear” is not properly understood to be a requirement of refugee
status, see Hathaway and Foster, Refugee Status, at 91–105.
990
While the Belgian representative initially suggested that this clause contemplated “an
unauthorized stay of three or four days,” even he subsequently agreed that only situations
of “prolonged illegal presence” were clearly excluded: Statements of Mr. Herment of
Belgium, UN Doc. E/AC.32/SR.40, Aug. 22, 1950, at 4–6. The American delegate was
the only representative who took the view that the “without delay” requirement imposes a
duty to seek protection “immediately on entry into a country”: Statement of Mr. Henkin,
ibid. at 7.
991
Thus, “[i]t is easy to imagine scenarios where refugees have lived for considerable periods
in a country without approaching the authorities, genuinely unaware that international
protection was available to them. In such circumstances, a purposive interpretation would
still afford such refugees the protection of Article 31, interpreting ‘without delay’ in light of
their individual circumstances”: Costello, “Article 31,” at 28. Indeed, the UK Supreme
Court invoked the importance of “a purposive interpretation consistent with [its] humani-
tarian aims” to suggest that a Somali applicant who had spent a year in Yemen and then
passed through two European cities before arriving to claim asylum in Britain might still
claim the benefit of Art. 31: SXH v. Crown Prosecution Service, [2017] UKSC 30 (UK SC,
Apr. 11, 2017), at [7].
992
“No strict time limit can be applied to the concept ‘coming directly’ and each case must be
judged on its merits. Similarly, given the special situation of asylum-seekers, in particular
the effects of trauma, language problems, lack of information, previous experiences which
often result in a suspicion of those in authority, feelings of insecurity, and the fact that
these and other circumstances may vary enormously from one asylum-seeker to another,
there is no time limit which can be mechanically applied or associated with the expression
‘without delay’”: UNHCR, “Revised Guidelines on Applicable Criteria and Standards
Relating to the Detention of Asylum Seekers,” Feb. 1999 (UNHCR, “Detention
Guidelines 1999”), at [4]. Regrettably this issue is not addressed in the latest iteration of
the Detention Guidelines, though the duty to give attention to the “special circumstances
and needs of particular asylum seekers,” e.g. on the basis of gender, sexuality, age, and
disability, is noted: UNHCR, “Guidelines on Applicable Criteria and Standards relating to
the Detention of Asylum Seekers” (2012) (UNHCR, “Detention Guidelines 2012”).

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 4.2 f reedom from detention a nd penalization 495

given his or her capacities and background, had reason to perceive such
circumstances.993

Most fundamentally, because the objective of this clause is simply to ensure that
asylum-seekers regularize their status “as soon as possible,”994 it cannot be relied
upon to impose arbitrary deadlines for an asylum claim to be lodged.995 The firm
five-day deadlines to seek refugee status set by Ecuador996 and Turkey997 are
therefore not in compliance with Art. 31; indeed, the Turkish rule was found to
breach the European Convention on Human Rights, precisely because of its
inflexibility.998 While the extremely short deadline set by these states made their
practices particularly problematic,999 the more general rule is that any deadline
for reporting must be administered with flexibility to take account of relevant
claimant-specific circumstances.1000 As such, even a less exigent deadline within
which to seek protection without being subjected to migration penalties – for
example, Mexico’s fifteen-day rule1001 or even Spain’s one-month deadline1002 –
will also breach Art. 31 if mechanistically applied.

4.2.1.2 Breach Necessitated by Urgency of Search for Protection

The second and more complex requirement to benefit from Art. 31 is that the
refugee must be “coming directly from a territory where their life or freedom
993
A v. Public Prosecuting Authority, Case No. 2014/220, HR-2014-01323-A (Nor. SC, June
24, 2014), at [14].
994
Secretary-General, “Memorandum,” at 46. It has been suggested that there is simply a
duty to present onself “within a short time of [one’s] arrival” in order to benefit from Art.
31 protection: see R v. Uxbridge Magistrates Court, ex parte Adimi, [1999] 4 All ER 520
(Eng. HC, July 29, 1999), at 529. This test has specifically been determined not to require a
refugee to claim protection “while clearing immigration controls at the port of entry”: UK
Soc. Sec. Comm. Dec. No. CIS/4439/1998 (Nov. 25, 1999).
995
See UNHCR Executive Committee Conclusion No. 15, “Refugees Without an Asylum
Country” (1979), at [(i)]: “While asylum-seekers may be required to submit their asylum
request within a certain time limit, failure to do so, or the non-fulfilment of other formal
requirements, should not lead to an asylum request being excluded from consideration.”
996
See text at note 853. 997 See text at note 853.
998
“In the Court’s opinion, the automatic and mechanical application of such a short time-
limit for submitting an asylum application must be considered at variance with the
protection of the fundamental values embodied in Article 3 of the [European]
Convention”: Jabari v. Turkey, [2000] ECHR 368 (ECtHR, July 11, 2000), at [40].
999
Finland’s administrative decision that a delay of just one day (See text at note 854) is not
“without delay” adopted a clearly unreasonably short deadline.
1000
As UNHCR has observed, “[g]iven . . . the effects of trauma, language problems, lack of
information, previous experiences which often result in a suspicion of those in authority,
feelings of insecurity, and the fact that these and other circumstances may vary enor-
mously from one asylum-seeker to another, there is no time limit which can be mechan-
ically applied or associated with the expression ‘without delay’”: UNHCR, “Response to
request for UNHCR’s guidance on the interpretation of Article 31 of the 1951
Convention Relating to the Status of Refugees,” Mar. 11, 2014, at [13].
1001
See text at note 851. 1002 See text at note 852.

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 496 4 righ t s of r efug ee s ph y sica lly p r es en t

was threatened in the sense of Article 1” and “show good cause for their illegal
entry or presence.” While these clauses are traditionally analyzed separ-
ately,1003 the two notions are actually deeply intertwined and hence most
sensibly treated as setting a single requirement: that exemption from penalties,
including from detention, is a function of whether the refugee is reasonably
seen to have breached ordinary migration rules because of the urgency of flight.
Viewed through this prism, the risk of technical error in interpretation of Art.
31 is minimized.
As this formulation suggests, the core of the requirement is the refugee’s
ability to “show good cause for their illegal entry or presence.” The underlying
premise of the “good cause” requirement is that exemption from immigration
penalties should be reserved for refugees whose illegal entry is the result of
some form of compulsion.1004 The drafters expected refugees to present
evidence that “owing to outside pressure, [they] had been obliged to enter or
re-enter particular countries illegally.”1005 Clearly, “[t]he fact that a refugee was
fleeing from persecution was [in and of itself] good cause,”1006 as refugees
seeking to escape the risk of persecution cannot be expected to satisfy

1003
Costello, for example, speaks of “three qualifying conditions . . . directness, promptness,
and good cause”: Costello, “Article 31,” at 10. Noll takes a more literal tack, suggesting that
“[t]he personal scope of Art. 31, para. 1 is determined by five criteria . . . (1) a refugee . . . (2)
coming directly . . . (3) enters or is present . . . (4) presents . . . without delay and (5) shows
good cause”: Noll, “Article 31,” at 1253.
1004
While the requirement to show “good cause” was at one stage omitted from the draft of
Art. 31 (see UN Doc. E/AC.32/L.26, Feb. 2, 1950), its importance was repeatedly asserted
by delegates. See Statement of the Chairman, Mr. Larsen of Denmark, UN Doc. E/AC.32/
SR.22, Feb. 2, 1950, at 25; Statement of Mr. Weis of the IRO, UN Doc. E/AC.32/SR.24,
Feb. 3, 1950, at 7 (proposing the language “and producing valid reasons to justify their
illegal entry”); and Statement of Mr. Winter of Canada, UN Doc. E/AC.32/SR.40, Aug. 22,
1950, at 5. The representative of the Netherlands suggested that the “good cause”
language would, for example, deny exemption from penalization to a refugee who entered
without authorization to visit a sick relative: Statement of Baron van Boetzelaer of the
Netherlands, UN Doc. A/CONF.2/SR.14, July 10, 1951, at 8.
1005
Statement of Mr. Juvigny of France, UN Doc. E/AC.32/SR.40, Aug. 22, 1950, at 6.
1006
Statement of Mr. Hoare of the United Kingdom, UN Doc. A/CONF.2/SR.14, July 10,
1951, at 7. See also Statement of Mr. van Heuven Goedhart of UNHCR, ibid. at 5.
UNHCR agrees, opining that “[h]aving a well-founded fear of persecution is recognized
in itself as ‘good cause’ for illegal entry”: UNHCR, “Letter to legal counsel re guidance on
the interpretation of article 31 of the 1951 Convention relating to the Status of Refugees,”
Mar. 11, 2014, at [16]. Noll worries that this approach renders the “good cause” require-
ment mere surplusage (Noll, “Article 31,” at 1260; analysis adopted in Costello, “Article
31,” at 30). To avoid this concern it is appropriate that the presumption be limited to
refugees in flight from risk, thus allowing the clause to play a meaningful role by
excluding pure secondary movers. In any event, Noll concedes that it would be enough
to show “that authorized entry or presence is . . . impossible to attain, e.g. due to visa
requirements” (Noll, “Article 31,” at 1261) – an essentially universal circumstance since
virtually no country offers visas for refugees to travel and make an asylum claim.

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 4. 2 f r e edo m f r o m d et e n t i o n a n d p e n a l i z a t i o n 497

immigration formalities before fleeing to safety.1007 Indeed, much the same

sense of urgency and precariousness may drive refugees to disguise their true
intentions until safely inside the asylum country. The Swiss Federal Court has
thus sensibly determined that fear of summary rejection at the Swiss border
also constituted good cause for illegal entry into that country, entitling the
asylum-seeker to benefit from Art. 31.1008
Why then add the companion requirement that the refugee be “coming
directly” from a place in which there is a risk of being persecuted? The intended
“coming directly” inquiry is actually a fairly straightforward application of the
goals animating the more general “good cause” requirement, not a distinct or
different requirement. The specific concern motivating this additional lan-
guage was that refugees should not be exempted from penalties if they elected
to move onward simply because they had been refused the right to settle in their
original country of refuge.1009 Delegates agreed that it made sense to exempt

1007
“Nor is it said that they had committed unlawful activities in other countries, even though
they had arrived in this country concealed in the back of a lorry, a course understandable
in view of the conditions and the risk of persecution under which some would-be asylum-
seekers lived”: R (Saadi) v. Secretary of State for the Home Department, [2002] UKHL 41
(UK HL, Oct. 31, 2002), at [21].
1008
Dec. 6S.737/1998/bue, ASYL 99/2, at 21 (Sw. FAC, Mar. 17, 1999). A similar understand-
ing was more recently adopted in Norway, the Supreme Court there finding that because
“not all countries treat asylum seekers stopped with false documents at passport control
the same way Norway does, . . . the fear of not getting through passport control is likely
legitimate”: A v. Public Prosecuting Authority, Case No. 2014/220, HR-2014-01323-A
(Nor. SC, June 24, 2014), at [22]. A more rigid view was, however, taken by the German
Federal Constitutional Court in Dec. No. 2 BvR 450/11, Dec. 8, 2014 (suggesting a duty
on refugees to present themselves at the time of clearing immigration controls) and by the
Supreme Court of New Zealand in Zanzoul v. R, [2008] NZSC 44, at [11] (NZ SC, June 10,
2008) (indicating that use of a false passport upon arrival in New Zealand was not
necessary). These perspectives, while no doubt objectively sound, nonetheless fail to
take account of the reasonable apprehensions of non-expert asylum-seekers who may
well have reason to distrust authorities and not understand that they are protected from
immediate turnback when presenting a false passport: see note 1000.
1009
Statement of Mr. van Heuven Goedhart of UNHCR, UN Doc. A.CONF.2/SR.14, July 10,
1951, at 4–5. France advocated a more stringent limitation. “[W]hile his delegation felt
that it was right to exempt from any penalties imposed for illegal crossing of the frontier
refugees coming directly from their countries of origin, it did not see any justification for
granting them similar exemption in respect of their subsequent movements. The initial
exemption was the direct corollary of the right of asylum, but once a refugee had found
asylum, article [31] in its present form would allow him to move freely from one country
to another without having to comply with frontier formalities. Actually, however, there
was no major reason why a refugee should not comply with those formalities”: Statement
of Mr. Colemar of France, ibid. Its approach (UN Doc. A/CONF.2/62) was softened to
include not just refugees coming from their country of origin, but also those needing to
flee the first receiving country: Statement of Mr. Del Drago of Italy, UN Doc. A/CONF.2/
SR.13, July 10, 1951, at 13; Statement of Mr. von Trutzschler of the Federal Republic of
Germany, UN Doc. A/CONF.2/SR.14, July 10, 1951, at 7.

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 498 4 rights of r efugees physically present

not only those coming directly from their country of origin but also those
refugees who had been able “to find asylum even temporarily”1010 in another
country where they had spent time. The logic was that a refugee who has been
denied temporary asylum is no less at risk than a refugee coming from the
country of origin1011 and therefore cannot be expected to comply with immi-
gration formalities before relocating. But if a refugee had been granted at least
temporary asylum (and was therefore not imminently at risk) there was no
good reason to exempt him from immigration penalties,1012 assuming of
course that the penalties did not result in refoulement directly or indirectly to
the country in which persecution was feared.
Importantly, then, the only intended retrenchment from the general goal of
exempting refugees from penalties was with regard to those who had “found
asylum”1013 – that is, those who had chosen to give up a secure (even if not
permanent) home1014 – not those who had failed to seek asylum.1015 Indeed,
1010
UN Doc. A/CONF.2/SR.14, July 10, 1951, at 13.
1011
The representative of Greece went farther, suggesting “that there could be no doubt that
the case where a country prescribed temporary residence for a refugee and thus deprived
him of his freedom of residence did constitute a case where no penalty could be imposed
on him by another country into whose territory he had illegally entered or in which he
was illegally present”: Statement of Mr. Philon of Greece, UN Doc. A/CONF.2/SR.14, July
10, 1951, at 12.
1012
“To admit without any reservation that a refugee who had settled temporarily in a
receiving country was free to enter another, would be to grant him a right of immigration
which might be exercised for reasons of mere personal convenience. It was normal in
such cases that he should apply for a visa to the authorities of the country in question”:
Statement of Mr. Colemar of France, ibid. at 10.
1013
“In order to illustrate his own point, [the French representative] would give a concrete
example – that of a refugee who, having found asylum in France, tried to make his way
unlawfully into Belgium. It was obviously impossible for the Belgian government to
acquiesce in that illegal entry, since the life and liberty of the refugee would be in no way
in danger at the time”: Statement of Mr. Colemar of France, UN Doc. A/CONF.2/SR.13,
July 10, 1951, at 14–15. The language was subsequently amended to make it clear that the
inquiry into the availability of asylum was forward-looking, not retrospective.
Specifically, the French proposed wording “having been unable to find” temporary
asylum was replaced by a formulation in the present tense, “being unable to find asylum
even temporarily [emphasis added]”: Statement of Mr. Herment of Belgium, UN Doc. A/
CONF.2/SR.14, July 10, 1951, at 13.
1014
“[T]here is strong support for the view that all refugees are to be regarded as ‘coming
directly’ except those who have found secure asylum elsewhere”: Costello, “Article 31,” at
18; “The delegates were particularly preoccupied with secondary movements of refugees
once they reached safety”: Noll, “Article 31,” at 1249. On the other hand, the Irish Court
of Appeal determined that “a sojourn of eighteen months (such as occurred in the present
case) in another safe country such as the United Kingdom is an entirely different matter”:
MIF v. International Protection Appeals Tribunal, [2018] IECA 36 (Ir. CA, Feb. 19, 2018),
at [26].
1015
The concern expressed by Lord Rodger (dissenting) in Asfaw – that an Ethiopian refugee
who transited at Heathrow Airport en route to the United States to claim asylum might
not be able to show good cause for illegal entry into the US for failure to seek asylum in

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 4.2 f r e e d o m f r o m d et e n t i o n an d p en a l i z a t i o n 499

the British representative successfully argued that the reference to “being

unable to find asylum even temporarily” should be eliminated,1016 since it
might be taken to mean that “a refugee would have to establish not merely his
refugee status, but also that he was unable to find asylum in any country other
than the one in which he applied to settle. Thus the onus of proving a negative
would be placed on the refugee himself.”1017 Eliminating this language would
“relieve the refugee of the onus of proving that he was unable to enter any other
country where he would not be persecuted. The refugee would still have to
show good cause to justify his illegal entry or presence.”1018 The language as
agreed means that there can be no question of insisting that refugees demon-
strate their inability to secure asylum elsewhere as a condition of immunity
from immigration penalties.1019

the United Kingdom – should not in principle arise: R v. Asfaw, [2008] UKHL 31 (UK
HL, May 21, 2008), at [112]. Sadly, however, the concern might well arise in practice given
the instruction of the US Attorney General to consider denying asylum to refugees who
have “passed through any other countries” without “attempt[ing] to seek asylum before
coming to the United States” (Matter of AB, Dec. No. 3929, 27 I&N Rep. 316 (US AG,
June 11, 2018), at note 12) – an unlawful penalty (since it relegates such refugees to the
less generous remedy of withholding of removal).
1016
Specifically, the UK argued in favor of language proposed by UNHCR: “The Contracting
States shall not impose penalties, on account of his illegal entry or presence, on a refugee
who enters or who is present in their territory without authorization, provided he
presents himself without delay to the authorities and shows good cause for believing
that his illegal entry or presence is due to the fact that his life or freedom would otherwise
be threatened”: UN Doc. A/CONF.2/SR.35, July 25, 1951, at 11–12.
1017
UN Doc. A/CONF.2/SR.14, July 10, 1951, at 11.
1018
Statement of Mr. van Heuven Goedhart of UNHCR, ibid. at 12. According to Grahl-
Madsen, “the main objective of the ‘good cause’ proviso [is] to prevent . . . the obligation
to exempt refugees from penalties [from being] extended to such ‘refugees who wished to
change their country of asylum for purely personal reasons.’ However, the requirement to
‘show good cause for their illegal entry or presence’ cannot wholly be ignored. It seems
that in view of the wording chosen, a refugee may be obliged to explain – not why he has
chosen any particular country – but why his entry or presence was illegal and not
regularized beforehand. Thus the requirement to show ‘good cause’ in the present text
is closely related to the requirement of presenting oneself without delay”: Grahl-Madsen,
Commentary, at 178–179.
1019
UNHCR convinced representatives that Art. 31 should not be framed in a way that
“would place on refugees the very unfair onus of proving that [they] were unable to find
even temporary asylum anywhere outside the country or countries in which [their] life or
freedom was threatened. As there were some eighty States in the world, the difficulty of
such a task required no emphasis”: Statement of Mr. van Heuven Goedhart of UNHCR,
UN Doc. A/CONF.2/SR.35, July 25, 1951, at 10–11. Despite the historical record suggest-
ing that the words “coming directly” are actually surplusage (see text at note 1009 ff.) with
the only goal being to exclude secondary movers, a misreading of the drafting history of
the Refugee Convention led an American court to precisely the opposite conclusion. The
case involved the claims of Afghan mujahideen or “freedom fighters,” who initially fled
Afghanistan to Pakistan and India, where they were threatened and attacked by agents of
the Afghan government and Pakistani Communists. The Afghans then traveled to the

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 500 4 righ t s of r e f ugee s ph y sica lly pr es en t

Much less was there any intention to allow penalties to be imposed in

relation to refugees who had simply passed through another country. In
response to Belgian concerns that the “coming directly” language might be
inappropriately relied upon to impose penalties against “a refugee who had
stayed in another country for a week or a fortnight, and had then been obliged
to seek asylum in the territory of the Contracting State in question,”1020 it was
agreed that Art. 31 ought not to be relied upon to “exclude from the benefit of
[Art. 31] any refugee who had managed to find a few days’ asylum in any
country through which he had passed.”1021 Courts interpreting this language
have thus generally been appropriately disinclined to allow the penalization of
refugees who spent limited amounts of time in a safe country before arriving to
seek asylum.1022 It follows that the practice of deeming refugees who pass
through a “safe country” without seeking asylum there not to have “come
directly”1023 is unjustified.
Yet another unfortunate interpretive challenge arises from the phrase read
in its totality – “coming directly from a territory where their life or freedom was

United States; some came directly from India and Pakistan, others traveled via England,
Holland, and Romania. Rather than inquiring into the reasons that prompted the asylum-
seekers to continue onward to the United States, and indeed with no concern for the
purely transitory presence of the Afghans in countries where they were not clearly at risk,
the court asserted that “petitioners may not invoke Article 31 of the Protocol because it
applies only to ‘refugees who come directly from a territory where their life or freedom
was threatened.’ In this case, all petitioners came to the United States from various
countries. Not one came directly from Afghanistan . . . The debates at the United
Nations General Assembly Conference on the Status of Refugees and Stateless Persons
that drafted the Convention indicate that exemption from the consequences of an illegal
entry should be considered only in the case of the first receiving country”: Singh v. Nelson,
623 F. Supp. 545 (US DCNY, Dec. 12, 1985), at 42. See also early Austrian jurisprudence
ruling that Art. 31 was inapplicable to any refugee who has even transited through
another country en route to Austria: Dec. No. VwGH 91/19/0187 (Au. HC, Nov. 25,
1991).
1020
Statement of Mr. Herment of Belgium, UN Doc. A/CONF.2/SR.14, July 10, 1951, at 12.
1021
Statement of Mr. Herment of Belgium, ibid. at 12.
1022
See e.g. R v. Asfaw, [2008] UKHL 31 (UK HL, May 21, 2008); R v. Navabi, [2005] EWCA
Crim 2865 (Eng. CA, Nov. 11, 2005), at [4]; Dec. No. 2 BvR 450/11 (Ger. FCC, Dec. 8,
2014); Dec. No. KKO:2013:21 (Fin. SC, Apr. 5, 2013). The Swiss Federal Administrative
Court has held, for example, that an Afghan asylum-seeker who spent one month in
Pakistan and two days in Italy before arriving in Switzerland had nonetheless come
“directly” to Switzerland: Dec. 6S.737/1998/bue, ASYL 99/2 (Sw. FAC, Mar. 17, 1999). In
contrast, Art. 31 does not generally apply where the stays en route are prolonged. Absent
evidence of risk in the intermediate countries, there is no reason to question the decision
of the New Zealand High Court that a refugee from Ghana was not “coming directly” to
New Zealand because she had spent two weeks in Swaziland, and ten months in South
Africa: Abu v. Superintendent of Mount Eden Women’s Prison, 199 NZAR Lexis 58 (NZ
HC, Dec. 24, 1999).
1023
More generally, so-called “safe country” rules pose a real risk of refoulement: see Chapter
4.1.2 at note 295 ff.

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 4.2 f r e e do m f r o m det en t i o n and penalization 501

threatened in the sense of Article 1.” Notwithstanding the overarching goal of

denying exemption from penalization only to those refugees who move
onward by choice rather than because of compulsion,1024 the incorporation
by reference in this phrase of Art. 1’s refugee definition has at times been
thought to imply, first, that the only relevant risk is a risk in the country of
origin; second, that the risk must be coupled with a Convention nexus ground
to suffice; and/or third, that only an extreme form of compulsion – that is, the
risk of being persecuted – qualifies a refugee for exemption from penalties for
unlawful entry or presence.
On the first concern, the drafters specifically rejected the view that immun-
ity from penalties should be limited to refugees coming directly “from their
country of origin.”1025 A refugee who confronts a serious risk in a country of
asylum would, like a refugee coming from his or her state of origin, not be able
safely to delay departure until immigration formalities had been completed.
Just as in the case of refugees coming directly from their country of origin, the
need to escape logically trumps the usual duty to respect immigration laws. The
President of the Conference of Plenipotentiaries therefore suggested that the
Convention should exempt from penalties any refugee “coming direct[ly] from
a territory where his life or freedom was threatened [emphasis added].”1026 No
state opposed the extension of Art. 31 protection to refugees in secondary flight
from serious risks.1027 On reflection, however, the French delegate expressed
concern that the precise language proposed by the President (“coming

1024
See text at note 1004.
1025
“The term ‘coming directly’ refers, of course, to persons who have come directly from
their country of origin or a country where their life or freedom was threatened, but also to
persons who have been in an intermediary country for a short time without having
received asylum there”: Weis, Travaux, at 302.
1026
Statement of the President, Mr. Larsen of Denmark, UN Doc. A/CONF.2/SR.13, July 10,
1951, at 15. This approach was initially embraced as a friendly amendment by France:
Statement of Mr. Colemar of France, ibid. See also Statement of Mr. van Heuven
Goedhart of UNHCR, UN Doc. A/CONF.2/SR.14, July 10, 1951, at 5. No special signifi-
cance should be attached to the reference to refugees coming from a “territory” (as
opposed to a “country”) in which they face a risk of being persecuted. The choice of
language was not explained, though it is likely that it was simply intended to track the
formulation of Art. 33’s duty of non-refoulement. UNHCR had earlier suggested that the
language of Art. 31 should mirror the duty of non-refoulement, which refers to “territor-
ies” where life or freedom would be threatened: Statement of Mr. van Heuven Goedhart
of UNHCR, UN Doc. A/CONF.2/SR.14, July 10, 1951, at 5. “In the course of drafting the
words ‘country of origin,’ ‘territories where their life or freedom was threatened’ and
‘country in which he is persecuted’ were used interchangeably”: Weis, Travaux, at 303.
1027
“[H]e thought there had been no objection to the High Commissioner’s interpretation,
namely, that the refugee’s illegal entry or presence must be proved to be due to the fact
that his life or freedom would otherwise have been threatened. He (the President)
considered that the French point of view should be acceptable to the other delegations,
and that there need be no difference of opinion on that question”: Statement of the
President, Mr. Larsen of Denmark, UN Doc. A/CONF.2/SR.35, July 25, 1951, at 13. No

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 502 4 ri g ht s of re f u g e e s p hy s i c a l l y p r e s e n t

direct[ly] from a country where his life or freedom was threatened”) might
undermine the finite obligation of states originally secured by the
Convention’s January 1, 1951 cut-off date.1028 While a refugee whose initial
flight was due to post-1951 causes would not be entitled to protection under
the then-prevailing temporal limit,1029 there would be no way to predict
how many refugees would need to move due to risks in asylum states that
might arise only after 1951.1030
The goal of the ensuing discussion at the Conference of Plenipotentiaries
was therefore to find a means to grant exemption from penalization to refugees
in secondary flight that would respect the Convention’s temporal limita-
tion.1031 The French representative felt that this goal could be achieved by
“wording, which would be in accordance with Article 1.”1032 His favored
formulation, “coming directly from a territory in which his life or freedom
would be threatened within the meaning of article 1, paragraph A, of this
Convention”1033 derived from a determination to limit Art. 31 protection to
persons in flight from a pre-1951 phenomenon.1034 The text as finally adopted

special significance should be attributed to the language requiring a threat to “life or

freedom,” instead of to a “well-founded fear of being persecuted.”
1028
This dateline has been prospectively eliminated by the adoption of the 1967 Protocol
relating to the Status of Refugees: see Chapter 1.5.1. The French concern therefore has no
contemporary relevance for the overwhelming majority of state parties to the
Convention, which are also parties to the Protocol.
1029
See Chapter 1.4.3.
1030
“As he understood the present text, a person who was the victim of events occurring in a
neighbouring country after [January 1, 1951] would not come within the terms of the
Convention if he crossed the border into France, whereas those who had already been
authorized to take refuge in the neighbouring country as a result of events occurring
before 1 January 1951 would be able to claim the benefit of the present provision. Thus
there might easily be an influx of refugees who had been authorized to stay in a
neighbouring country, but who, because their lives were threatened as a result of events
occurring in that country after 1 January 1951, would be entitled to avail themselves of the
clause to move into France. Thus the ceiling on commitments provided by the date of 1
January 1951 would be largely nullified [emphasis added]”: Statement of Mr. Rochefort of
France, UN Doc. A/CONF.2/SR.35, July 25, 1951, at 14.
1031
See Chapter 1.4.3.
1032
Statement of Mr. Rochefort of France, UN Doc. A/CONF.2/SR.35, July 25, 1951, at
15–16.
1033
Ibid. at 17.
1034
The British representative “felt that the time factor was already covered by the definition
of the term ‘refugee’ in article 1. Article 31 could not therefore relate to any refugee fleeing
from a country as a result of events occurring after 1 January, 1951”: Statement of Mr.
Hoare of the United Kingdom, ibid. at 17. The French representative insisted on the need
for an additional qualification in Art. 31 “since a refugee might be a refugee under the
terms of the Statute of the High Commissioner’s Office [and also that] [t]he definition in
article 1 did not cover conditions of admission, but only the rights to be accorded
refugees”: Statement of Mr. Rochefort of France, ibid.

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 4.2 f r ee d o m f r o m d e t en t i o n an d p e n a l i z a t i o n 503

was intended to achieve precisely this goal.1035 But with the Refugee Protocol’s
prospective abolition of the January 1, 1951 cut-off date for refugee status,1036
the original basis for inserting the reference to persons whose life or freedom
was threatened “in the sense of Article 1” has now been rendered largely moot.
Because state parties to the Protocol are required to apply the Convention
refugee definition without reference to the temporal limitation,1037 all refugees
whose illegal entry or presence is due to risk in an intermediate country of
asylum are today entitled to exemption from penalization. This is, of course, a
sensible result: if a serious risk emerges in the first country of refuge, then the
same considerations of urgency of flight that dictated exemption from migra-
tion penalties initially would again apply.
A second argument has, however, been advanced that the comments of two
delegates to the Conference of Plenipotentiaries suggest that the phrase “in the
sense of Article 1” may also restrict access to Art. 31 protection on the grounds
that it requires a refugee in secondary flight to show that the risk in the country
from which secondary flight originated is on account of “race, religion, nation-
ality, membership of a particular social group, or political opinion.” The
suggestion is that Art. 31 protection would therefore not inhere where depart-
ure is the result of a generalized risk of being persecuted there.1038 Taken in
1035
A competing British amendment was withdrawn because “the French representative
found it unacceptable”: Statement of Mr. Hoare of the United Kingdom, ibid. at 19.
Immediately prior to the 20–0 (2 abstentions) vote to approve the final text, the French
representative reiterated that the reason for the reference to Art. 1 of the Convention in
the text of Art. 31 was that France, “[a]s a country of second reception . . . could not bind
itself to accept refugees from all other European countries of first reception. There had to
be some limit, such as that of events occurring before 1 January 1951”: Statement of Mr.
Rochefort of France, ibid. at 19.
1036
See Chapter 1.5.1.
1037
Protocol relating to the Status of Refugees, 606 UNTS 8791 (UNTS 8791), done Jan. 31,
1967, entered into force Oct. 4, 1967 (Refugee Protocol), at Art. I(2).
1038
Statements of Mr. Petren of Sweden, UN Doc. A/CONF.2/SR.35, July 25, 1951, at 14–15;
and of the President, Mr. Larsen of Denmark, ibid. at 18: “It might also happen, as the
Swedish representative had indicated, that a refugee, as defined in article 1, escaped to a
second country where his life or liberty was again in danger, but not for the reasons
specified in article 1, and that for those irrelevant reasons he fled to a third country. The
French representative was, presumably, concerned with the possibility of such cases
coming within the terms of Article 31.” In fact, as described above, this was not the
concern of the French delegate. Yet the language adopted (“in the sense of Article 1”) is
certainly broad enough to encompass this requirement. It was also likely in the minds of
the drafters, given this statement by the President just prior to the final vote on the text of
Art. 31. The implications of this requirement are, however, unclear. Since the original
recognition of refugee status was premised on a nexus to one of the five Convention
grounds, it might reasonably be said that “but for” that initial, nexus-defined flight the
refugee would not have been compelled to seek secondary protection. That is, he or she is
only exposed to the risk of persecution in the asylum country because of an initial flight
prompted by race, religion, nationality, membership of a particular social group, or
political opinion.

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context, however, the better view is that these interventions at the Conference
were intended simply to ensure that Art. 31 protection is limited to persons
whose secondary movement is motivated by a need for protection. The
Swedish representative, for example, suggested that the reason that the benefit
of Art. 31 should be restricted to persons able to show the risk of persecution
for an enumerated ground was that “otherwise a refugee who had committed a
theft might maintain that his freedom was in danger”1039 – in other words, that
Art. 31 ought not to benefit persons whose illegal entry or presence was
unconnected to their refugee status. This broader reading is in keeping with
the more general concern to limit Art. 31 protection to refugees whose
secondary movement was prompted by the need for protection.1040
This leaves the third and most important concern arising from the “in the
sense of Article 1” language. What if the risk in the country of first asylum does
not rise to the level of a risk of being persecuted, but is nonetheless in breach of
the requirements of refugee law and related human rights norms? The textual
reference in Art. 31 to exempting persons at risk “in the sense of Article 1”
seems to argue for the narrower interpretation that only a risk of persecution,
not of some lesser human rights infringement, suffices to secure exemption
from penalization.1041 Yet if account is taken of the drafters’ overarching
concern to exempt persons from penalties for unlawful entry or presence so
long as their onward movement is truly the result of compulsion rather than
choice,1042 the case for exempting refugees who enter a second state without
authorization after being treated badly in the first asylum country is compel-
ling. The drafters seem to have paid little attention to the narrower reference to
“in the sense of Article 1” (i.e. a risk of being persecuted), focusing instead on
whether “the life and liberty of the refugee would be . . . in danger at the
time.”1043 Indeed, in answering a query from the French delegate, the
Chairman of the Conference of Plenipotentiaries drew explicitly on the over-
arching “show good cause” language to suggest that exemption from penalties

1039
Statement of Mr. Petren of Sweden, UN Doc. A/CONF.2/SR.35, July 25, 1951, at 14–15.
1040
“What France wished to avoid was having to accept any refugee from a neighbouring
country who voluntarily decided to move into France, perhaps on the pretext that the
neighbouring country would no longer give him permission to reside there [emphasis
added]”: Statement of Mr. Rochefort of France, UN Doc. A/CONF.2/SR.35, July 25, 1951,
at 11.
1041
While the growing acceptance that a risk of “being persecuted” is to be measured by
reference to a risk to human rights (see Hathaway and Foster, Refugee Status, at 182–287)
attenuates this concern, there remains live debate about, for example, whether the threat
must be to a subset of internationally recognized rights, and about whether the correct
measure is a risk to the core of a recognized right or a serious infringement of any aspect
of the right.
1042
See text at note 1004.
1043
Statement of Mr. Colemar of France, UN Doc. A/CONF.2/SR.13, July 10, 1951, at 15.

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 4.2 f r ee d o m f r o m d e t en t i o n an d p e n a l i z a t i o n 505

is appropriate where the refugee faces a serious risk in the country of first
asylum, albeit a risk perhaps not rising to the level of persecution:
A refugee in a particular country of asylum, for example a Hungarian refugee
living in Germany, might, without actually being persecuted, feel obliged to
seek refuge in another country; if he then entered Denmark illegally, it was
reasonable to expect that the Danish authorities would not inflict penalties on
him for such illegal entry, provided he could show good cause for it . . .
[R]eliance should be placed on the phrase “show good cause.”1044

This seems quite right. At least insofar as the risk in the first country of refuge
bespeaks a failure to honor international protection standards,1045 a refugee
thereby compelled to move onward is in no meaningful sense a “secondary
mover.”1046 As such, so long as he is able to show that waiting in the first
country for permission to enter another asylum state was not reasonable given
the nature of the risk and his own circumstances, he should be exempted from
penalties arising from his unlawful entry into or presence in the destination
state. In line with this understanding, courts have found that refugees arriving
from “unstable”1047 situations or from places in which protection was not
reliably on offer1048 – not just those who would be “persecuted” there – should
be exempted from penalties.
It can thus be seen that the “coming directly” gloss is largely an unnecessary
distraction, adding no clear value to the core criterion to show “good cause for
their illegal entry or presence.” As much is acknowledged by the analytical
approach to Art. 31 pioneered by the English Court of Appeal in Adimi –
proposing “touchstones” of eligibility based on length of stay in the intermediate
1044
Statement of the Chairman, Mr. Larsen of Denmark, UN Doc. A/CONF.2/SR.13, July 10,
1951, at 15.
1045
“[T]here is strong support for the view that all refugees are to be regarded as ‘coming
directly’ except those who have found secure asylum elsewhere”: Costello, “Article 31,” at
18. See also UNHCR, “Response to request for UNHCR’s guidance on the interpretation
of Article 31 of the 1951 Convention Relating to the Status of Refugees,” Mar. 11, 2014, at
[12]: “The term ‘coming directly’ covers the situation of a person who enters the country
in which asylum is sought directly from his/her country of origin, or from another
country where his/her protection, safety and security could not be assured.”
1046
See text at notes 1009–1012.
1047
R v. Mateta, [2013] EWCA Crim 1372 (Eng. CA, July 30, 2013), at [55].
1048
See e.g. Pest Central District Court Dec. No. 7.B.VIII.20.776/2013/34 (Hun. DC, Dec. 3,
2013), at [4.1] (finding the applicant to have come directly despite time spent in Russia
and Ukraine where it was held protection was not available); and Dec. No. BO1587, ECLI:
NL:HR:2011:BO1587 (Neth. SC, May 24, 2011), at [2.4.3] (finding that a person came
directly if coming via a country where protection, safety, and security could not be
secured). Even in a rare case in which a refugee was found not to have “come directly”
(because he had lived for long periods in Kenya and Ethiopia), it was noted that the same
result might not have been reached if there were evidence that his “protection, safety and
security” were compromised in those countries: Hassan v. Department of Labour, Dec.
No. CRI 2006-485-101 (NZ HC, Apr. 4, 2007), at [39].

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 506 4 ri g h t s of r e f u g e es ph y s i c a l l y p r e s e nt

country, reasons for delaying there, and whether or not protection was sought and
found there1049 – and thus helpfully directing the mind to the basic question of
whether the refugee should be seen as a secondary mover (whose unlawful entry
or presence can be penalized) or an individual whose departure from the inter-
mediate country was part of a search for protection (in which case penalization is
not justified).1050 Indeed, the Court’s explicit finding that a refugee is entitled to
the benefit of Art. 31 despite being forced to endure “even a substantial delay . . .
spent trying to acquire the means of travelling on”1051 makes clear that little
attention should be given to assessment of the directness or otherwise of the
journey itself – an inquiry that can moreover easily be confused with a so-called
“safe country” inquiry.1052 The open-ended Adimi test helpfully enables decision-
makers genuinely to grapple with the specificity of the particular refugee’s cir-
cumstances in order to decide whether there truly were good reasons to see
onward movement as compelled rather than voluntary.1053 A sound application
1049
R v. Uxbridge Magistrates Court, ex parte Adimi, [1999] 4 All ER 520 (Eng. HC, July 29,
1999), at [18].
1050
See comments of the representatives of the United Kingdom, Switzerland, Australia, and
Belgium at UN Doc. A/CONF.2/SR.14, July 10, 1951, at 7–10. Indeed, “the requirement
in Article 31(1) . . . that the refugee must show ‘good cause’ for his illegal entry or
presence . . . may not present an onerous requirement given that in Adimi the
Divisional Court affirmed that this condition has only a limited role to play and it will
be satisfied by a genuine refugee showing that he was reasonably travelling on false
papers”: R v. Mateta, [2013] EWCA Crim 1372 (Eng. CA, July 30, 2013), at [20].
1051
R v. Uxbridge Magistrates Court, ex parte Adimi, [1999] 4 All ER 520 (Eng. HC, July 29, 1999),
at [18].
1052
Not only is this approach without historical support, but it is more fundamentally difficult to
reconcile to the presumptive right of refugees to choose for themselves where to ask for
protection – a principle built into the structure of the Convention itself: see generally
Hathaway and Foster, Refugee Status, at 30–33. Specifically, as Arts. 1(D) and 1(E) exclude
individuals from refugee status on the grounds of (very specific) possibility of seeking
protection elsewhere, “[t]he expressio unius principle, providing that explicit mention of
certain exceptions operates so as to exclude others, forecloses the argument that refugee
status is lost because of failure to take up some other (and lesser) opportunity to seek
protection”: ibid. at 32–33. The right of refugees ordinarily to choose where to seek protec-
tion has been affirmed by the UNHCR’s Executive Committee Conclusion No. 15 which
provides that “[t]he intentions of the asylum-seeker as regards the country in which he
wishes to request asylum should as far as possible be taken into account. Regard should be
had to the concept that asylum should not be refused solely on the ground that it could be
sought from another state”: UNHCR Executive Committee Conclusion No. 15, “Refugees
Without an Asylum Country” (1979), at [h(iii)]. Costello has reached much the same
conclusion, suggesting “that questions of safe third country, and whether it may be permis-
sible to return an asylum-seeker to another country to have her claim assessed, are best kept
separate from the question of non-penalization”: Costello, “Article 31,” at 19.
1053
Noll’s concern that consideration of the refugee’s intent under the Adimi approach
should be rejected as amounting to “a separate test of personal credibility” (Noll,
“Article 31,” at 1256) is not convincing: rather, failure to take account of the refugee’s
intentions would undermine attentiveness to the refugee’s understanding of factors that
go to the required showing of compulsion. More generally, as Costello insists, the Adimi

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 4.2 f reedom from detention a nd penalization 507

of the test thus conforms to Noll’s view that “[l]ogically there would only be one
category of refugees whose behaviour could be rationally targeted and altered with
penalties. It is the group of refugees who, already having secured lawful presence
and international protection as refugees in a transit State, nonetheless violate the
law governing entry and stay of another State.”1054
In sum, there are really only two requirements for a refugee to be exempted
from detention and other penalties on account of illegal entry or presence.
First, the refugee must show good faith by coming forward to authorities and
explaining her circumstances within a reasonable time of arrival. And second,
the refugee must show good cause for her unlawful entry or presence, the core
question being whether her failure to comply with migration rules was because
of the urgency of her search for protection. Despite all of the complexity that
often characterizes debates about Article 31, the true inquiry is thus actually
quite simple. As the Belgian representative to the Conference of
Plenipotentiaries put it,
The purpose . . . was to exempt refugees from the application of the
penalties imposable for the unlawful crossing of a frontier, provided they
presented themselves of their own free will to the authorities and explained
their case to them.1055

4.2.1.3 Persons or Organizations Assisting Refugees

This leaves one final question to be resolved: can Art. 31 be invoked by
persons or organizations that assist refugees in flight from serious risk to
enter an asylum country without authorization? The importance of such
protection was voiced by the Swiss representative to the Ad Hoc
Committee:
Swiss federal law did not regard any person assisting [a refugee] as
liable to punishment, provided his motives were above board. The
provision was of some importance for voluntary organizations for aid
to refugees. Article [31] did not include any such provision, and he
thought the omission should be made good. It was quite possible that
in domestic law, assistance to a foreigner crossing a frontier illegally
might be regarded as a separate offence punishable even if the refugee
was not.1056

There was general agreement that “a refugee organization should not be penalized
for having helped a refugee applying to it. That was an obvious humanitarian
test is contextually sound since “[t]he touchstones are . . . sensitized to the complex flight
routes of refugees, under the current conditions whereby refugees’ mobility is often
particularly suppressed”: Costello, “Article 31,” at 20.
1054
Noll, “Article 31,” at 1256.
1055
Statement of Mr. Herment of Belgium, UN Doc. A/CONF.2/SR.13, July 10, 1951, at 14.
1056
Statement of Mr. Schurch of Switzerland, UN Doc. E/AC.32/SR.40, Aug. 22, 1950, at 8.

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 508 4 ri g ht s of re f u g e es p hy s i c a l l y p r e s e n t

duty.”1057 Yet no state endorsed the Swiss proposal to amend the Convention to
provide for such an exemption. Concern was expressed that any such amendment
might encourage organizations actually to organize or promote the illegal entry of
refugees (rather than simply to respond to requests for assistance). Indeed, the
French representative successfully urged his colleagues to leave states the freedom
to penalize “corporate bodies” that might exploit asylum-seekers.1058 The final
consensus was that “it would be sufficient to make mention of the problem in the
summary record of the meeting, in the hope that Governments would take note of
the very liberal outlook embodied in the Swiss federal laws and follow that
example.”1059
This discussion confirms that there is no explicit legal obligation to exempt
even individuals or organizations with purely humanitarian motives from
penalties for assisting refugees to cross frontiers without authorization.1060
As the text of Art. 31 makes clear, the duty of states is simply to avoid the
imposition of penalties “on refugees.” Yet because of this same language,
immunity must be granted where refugees organize themselves and work
collectively to flee persecution. So long as a refugee is seeking to ensure his
or her own access to protection, the incidental entry or presence of others
arising from the same actions should be viewed simply as that: incidental to the
primary and legally protected goal of ensuring that migration control laws do
not impede a refugee from accessing protection:
[A]rt. 31(1) of the Refugee Convention seeks to provide immunity for
genuine refugees who enter illegally in order to seek refuge. For that protec-
tion to be effective, the law must recognize that persons often seek refuge in
groups and work together to enter a country illegally. To comply with Art.
31(1), a state cannot impose a criminal sanction on refugees solely because
they have aided others to enter illegally in their collective flight to safety.1061

Yet even with this important safeguard, the conceptual incongruity of penal-
izing non-refugee individuals, organizations, or corporations for facilitating
1057
Statement of Mr. Juvigny of France, ibid. at 9. See also Statements of Mr. Henkin of the
United States, Mr. Perez-Perozo of Venezuela, and the Chairman, Mr. Larsen of
Denmark, ibid. at 8–9.
1058
“But assistance to refugees might go beyond the national territory, and in certain
circumstances refugee organizations might literally become organizations for the illegal
crossing of frontiers. He wondered whether it would be in the interests of refugees
themselves that organizations of this kind, whose activities were likely to come under
very much more general laws, should exist inside national territories”: Statement of Mr.
Juvigny of France, ibid. at 9.
1059
Statement of Mr. Juvigny of France, ibid. at 9. See also Statement of Mr. Henkin of the
United States, ibid. at 8; and Statement of the Chairman, Mr. Larsen of Denmark, ibid.
at 9.
1060
See also Noll, “Article 31,” at 1253, concluding that “the provision does not lend itself to
an argument on the unlawfulness of carrier sanctions.”
1061
R v. Appulonappa, [2015] 3 SCR 754 (Can. SC, Nov. 27, 2015), at [43].

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 4. 2 f r e edo m f r o m d et e n t i o n a n d p e n a l i z a t i o n 509

precisely the irregular entry that Art. 31 allows is surely self-evident. Recognizing
that the drafters’ reluctance to amend the text of Art. 31 stemmed from concern
to avoid the exploitation of refugees, asylum countries should thus be slow to
impose immigration-related penalties on innocent agents of entry.1062 As the
Supreme Court of Canada has suggested, the third parties most sensibly refused
immunity from penalties are those “who assist in obtaining illegal entry for
financial or other material benefit.”1063
The Canadian Supreme Court’s views seem largely to align with Canadian
government practice to restrict prosecution to only those engaged in commer-
cial operations,1064 the much broader scope of legislative authority notwith-
standing.1065 The European Union has gone even farther beyond the strict
requirements of Art. 31, calling on member states not to penalize even com-
mercial carriers transporting refugees.1066 But because there is sadly no legal
duty to exempt non-refugees from penalization, Sweden’s flat-out refusal even
to attempt to align its policy toward those bringing Syrian refugees to its
territory with the EU recommendation1067 is not in breach of Art. 31. Nor is
Australia’s decision to impose sanctions on carriers whether or not refugee

1062
The English Court of Appeal found that rules which imposed a mandatory £2,000 fine on
truck drivers and others for each unauthorized entrant brought to the United Kingdom
by them as the result of either intent or negligence were in breach of the requirements of
the European Convention on Human Rights. “[E]ven assuming, as I do, that the scheme
is directed towards punishing carriers for some fault, it cannot to my mind be right to
impose so high a fixed penalty without possibility of mitigation. The hallowed principle
that the punishment must fit the crime is irreconcilable with the notion of a substantial
fixed penalty. It is essentially, therefore, on this account rather than because of the
reversed burden of proof that I would regard the scheme as incompatible with Article
6. What in particular it offends is the carrier’s right to have his penalty determined by an
independent tribunal. To my mind there surely is such a right . . . if . . . contrary to my
belief, the scale and inflexibility of the penalty, taken in conjunction with the other
features of this scheme, are not such as to deprive the carriers of a fair trial under
Article 6, then I would hold them instead to impose an excessive burden on the carriers
such as to violate Article 1. Even acknowledging, as I do, the great importance of the
social goal which the scheme seeks to promote, there are nevertheless limits to how far the
state is entitled to go in imposing obligations of vigilance on drivers (and vicarious
liability on employers and hirers) to achieve it and in penalising any breach. Obviously,
were the penalty heavier still and the discouragement of carelessness correspondingly
greater, the scheme would be yet more effective and the policy objective fulfilled to an
even higher degree. There comes a point, however, when what is achieved is achieved
only at the cost of basic fairness. The price in Convention terms becomes just too high.
That in my judgment is the position here”: Secretary of State for the Home Department v.
International Transport Roth GmbH, [2002] 1 CMLR 52 (Eng. CA, Feb. 22, 2002), at [47],
[53], per Simon Brown L.J. Interestingly, neither the issue of the impact on refugees nor
the possible relevance of Art. 31 of the Refugee Convention seems to have been argued.
1063
B010 v. Minister of Citizenship and Immigration, [2015] 3 SCR 704 (Can. SC, Nov. 27,
2015), at [63].
1064
See text at note 927. 1065 See text at note 926. 1066 See text at note 933.
1067
See text at note 936.

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 510 4 r i gh t s of ref ug ees physic ally present

claims are found to be genuine1068 or even Italy’s harsh decision to prosecute

the Tunisian fishermen who rescued forty-four refugees off the coast of
Lampedusa1069 – despite the fact that all of these actions or policies may clearly
have a chilling effect on the willingness of third parties to help refugees reach
protection. And while the position of states such as Austria and France –
providing for the non-penalization of carriers bringing refugees whose claims
are subsequently determined to be well founded1070 – might seem compara-
tively enlightened, that approach gives rise indirectly to risk that carriers are
effectively put in the position of serving as inexpert and involuntary adjudica-
tors of refugee status, thus posing a serious risk of refoulement and/or denial of
the right to leave one’s own country.1071 Uganda seems to have recognized and
responded to this very serious concern, granting an explicit exemption from
penalties for transporting someone whom a carrier had “reasonable grounds to
believe is genuinely seeking asylum [emphasis added].”1072 While very much
beyond the requirements of Art. 31, this approach is an effective means of
realizing the hope of the drafters that ordinary migration control rules not
stand in the way of refugees accessing protection.
To summarize, a refugee may invoke Art. 31 to avoid detention and other
penalties for illegal entry or presence so long as he or she voluntarily reports
to asylum state authorities within a reasonable time after crossing the fron-
tier. The refugee must show “good cause” for illegal entry or presence, a
requirement which will always be met where the breach of migration control
laws is the result of flight from a risk of being persecuted, but includes also
flight from other serious risks, in particular those that bespeak a violation of
refugee or international human rights law. The risk may exist either in the
refugee’s country of origin or in a state in which protection was previously
offered or afforded. Because the Convention provides protection from pen-
alization only for refugees themselves, those who transport or otherwise
assist refugees to enter asylum states without authorization are not protected
from amenability to the usual regulatory or criminal penalties for such
actions. The drafters assumed, however, that governments would not exer-
cise their authority to penalize those assisting refugees to enter an asylum
country absent evidence that they had acted in an exploitative way, or
otherwise in bad faith.

1068
See text at note 931. 1069 See text at note 928.
1070
See text at note 935. This approach is advocated in G. Goodwin-Gill, “Article 31 of the
1951 Convention relating to the Status of Refugees: Non-Penalization, Detention, and
Protection,” in E. Feller et al. eds., Refugee Protection in International Law 185 (2003)
(Goodwin-Gill, “Article 31”), at 219: “As a matter of principle . . . a carrier should not be
penalized for bringing in an ‘undocumented’ passenger, where that person is subsequently
determined to be in need of international protection [emphasis added].”
1071
See Chapter 4.1.1. 1072 See text at note 937.

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 4.2 f reedom from detention a nd penalization 511

4.2.2 Non-penalization
The substance of the duty of non-penalization was not extensively discussed by
the drafters of the Refugee Convention. The core concern is to exempt refugees
in flight from serious harm from sanctions that might ordinarily be
imposed1073 for breach of the asylum state’s general migration control
laws.1074 The Secretary-General’s background study, for example, observed
that while countries commonly require non-citizens to present a valid passport
and visa to be legally admitted, a refugee “is rarely in a position to comply with
the requirements for legal entry.”1075 Equally apparent is the need of many
refugees to cross borders clandestinely in order to access protection.1076 So
long as a refugee’s failure to present valid travel documents or to comply with
the usual immigration formalities is purely incidental to his or her flight from
the risk of serious harm, he or she should not be sanctioned “on a charge of
illegal entry.”1077
There is therefore no basis in international law for the practice in
Bulgaria1078 and South Africa1079 of subjecting refugees to the usual penalties
for illegal entry, nor for Russia’s1080 reliance on its right to arrest illegal

1073
“The Belgian representative had urged that the penalties mentioned in the article . . .
should be confined to judicial penalties only. Surely that was precisely what the article
stated. A judicial penalty, at least as interpreted in the code law of the Latin countries, was
a penalty pronounced by the courts, not an administrative penalty”: Statement of Mr.
Juvigny of France, UN Doc. E/AC.32/SR.40, Aug. 22, 1950, at 5. Because the goal of the
French position was to ensure that purely administrative actions were not subject to Art.
31, Grahl-Madsen logically suggests that “[t]he term ‘penalties’ includes imprisonment
and fines, meted out as punishment by a judicial or semi-judicial body”: Grahl-Madsen,
Commentary, at 169.
1074
“The meaning of ‘illegal entry or presence’ has not generally raised any difficult issue of
interpretation. The former would include arriving or securing entry through the use of
false or falsified documents, the use of other methods of deception, clandestine entry (for
example, as a stowaway), and entry into State territory with the assistance of smugglers or
traffickers . . . ‘Illegal presence’ would cover unlawful arriving and remaining, for
instance, after the elapse of a short, permitted period of stay”: Goodwin-Gill, “Article
31,” at 196.
1075
Secretary-General, “Memorandum,” at 46.
1076
Reliance on false travel documents “is a commonplace occurrence for those who are
fleeing their countries”: R v. Lu Zhu Ai, [2005] EWCA Crim 936 (Eng. CA, Apr. 15, 2005),
at [7].
1077
Statement of Mr. Hoare of the United Kingdom, UN Doc. A/CONF.2/SR.13, July 10,
1951, at 14. See also Statements of Mr. Colemar of France, ibid. at 13 (“any penalties
imposed for illegal crossing of the frontier”); Mr. Del Drago of Italy, ibid. at 13 (“from the
consequences of irregular entry”); Mr. Herment of Belgium, ibid. at 14 (“penalties
imposable for the unlawful crossing of a frontier”); the President, Mr. Larsen of
Denmark, ibid. at 15 (“penalties . . . for such illegal entry”); and Mr. van Heuven
Goedhart of UNHCR, UN Doc. A/CONF.2/SR.35, July 25, 1951, at 12 (“punished for
such illegal entry”).
1078
See text at note 837 1079 See text at note 838. 1080 See text at note 839.

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 512 4 righ ts of r efug ee s ph y sica lly p r es en t

entrants to penalize refugees caught up in its more general efforts. It is equally

wrong to impose such penalties by subterfuge as Hungary did when penalizing
refugees seeking asylum for “damaging border fences.”1081 Similarly, the
Canadian Federal Court countenanced a breach of Art. 31 when it determined
that there was no need even to assess the protection claim of a Guinean
applicant who “obtained fake identity documents to leave his country.”1082
Because the false identity documents with which he arrived in Canada “con-
tained multiple inconsistencies which the applicant had been unable to
adequately explain,”1083 the Court determined that “the refugee protection
claim could have been rejected at the identification stage, without going any
farther.”1084 In taking this position the court not only effectively nullified the
value of the protection set by Art. 31(1), but also exposed the claimant to the
risk of refoulement.1085
Interestingly, Art. 31 does not require state parties formally to incorporate
an exemption for refugees from general immigration penalties. Indeed, there is
not even a duty to refrain from launching a prosecution against refugees for
breach of immigration laws.1086 As much was arguably evident even in the
original formulation of Art. 31, which would have required states not to
“apply” penalties against refugees.1087 But the final language, in which the

1081
See text at note 873.
1082
Mamadou Saidou Diallo v. Minister of Citizenship and Immigration, [2014] FC 471 (Can.
FC, May 14, 2014), at [6].
1083
Ibid. at [9]. 1084 Ibid. at [17].
1085
Indeed, in Choudhary v. Canada, HRC Comm. No. 1898/2009, UN Doc. CCPR/C/109/D/
1898/2009, decided Oct. 28, 2013, the UN Human Rights Committee found a breach of
Arts. 6 and 7 of the Civil and Political Covenant where the Canadian tribunal rejected
applicants for failure to establish their identity. On the shared duty of fact-finding
between an applicant and the authorities of the asylum country, see Hathaway and
Foster, Refugee Status, at 118–121.
1086
See R v. Uxbridge Magistrates Court, ex parte Adimi, [1999] 4 All ER 520 (Eng. HC, July
29, 1999), at 533: “[I]t would seem to me clearly preferable if possible to avoid any
prosecution at all rather merely than look to the remedy of a stay once it appears that
immunity may arise under art. 31. I do not go so far as to say that the very fact of
prosecution must itself be regarded as a penalty under art. 31 . . . But there is not the least
doubt that a conviction constitutes a penalty and that art. 31 impunity is not afforded . . .
by granting an absolute discharge . . . Provided that the [government] henceforth recog-
nizes the true reach of art. 31 as we are declaring it to be, and puts in place procedures that
those entitled to its protection . . . are not prosecuted, at any rate to conviction, . . . I am
inclined to conclude that . . . the abuse of due process jurisdiction is able to provide a
sufficient safety net for those wrongly prosecuted [emphasis added].”
1087
Secretary-General, “Memorandum,” at 45. Costello makes a creative argument in favor of
a duty not even to launch a prosecution, suggesting that the mere fact of having to “appear
in court” will be “materially disadvantageous” and hence a prohibited penalty (her other
concern about the risk of detention is governed by Art. 31(2), not Art. 31(1) for reasons
described at Chapter 4.2.4): Costello, “Article 31,” at 34. While plausible as a literal
construction of the notion of a penalty, the clear language of Art. 31(1) requiring only that

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 4. 2 f r e ed o m f r o m d et e n t i o n a n d p en a l i za t i o n 513

only obligation is not to “impose” such penalties,1088 makes this point quite
clearly. Indeed, the Belgian representative to the Ad Hoc Committee observed
that the immunity of a particular refugee from immigration penalties is a
question to be submitted to the courts, implying the ability to lay charges in
the first place.1089 It is therefore lawful for a government to charge an asylum-
seeker with an immigration offense, and even to commence a prosecution,1090
though no conviction may be entered without consideration being given to the
applicability of Art. 31(1) as a defense to the charge. If the court determines
that the person seeking protection voluntarily reported to asylum state author-
ities within a reasonable time after crossing the frontier and has shown good
cause for her illegal entry or presence (including the use of false documents),
Art. 31(1) should be understood to provide a complete defense to the criminal
charge.1091 This is true whether or not the individual is finally determined to
qualify as a Convention refugee: for reasons elaborated above,1092 it would be
both unfair and counterproductive to limit exemption to those persons able
accurately to self-assess as meeting the technical requirements of the refugee
definition. It follows that the practice in Argentina1093 and Denmark1094 of
exempting from conviction only those ultimately found to qualify as refugees is
not in line with Art. 31(1).
Nor is it the case that Art. 31(1) provides exemption only from the usual
sanctions imposed on persons who cross a border without permission.1095 It is
true that the original draft of Art. 31 would have supported a narrow construc-
tion of the notion of relevant “penalties.” The Secretary-General’s proposed
wording called on states not to apply to refugees “[t]he penalties enacted

a penalty not be “imposed” (in substitution for the earlier language of “applied”) argues
against her approach.
1088
This shift of language can be traced to a joint proposal of Belgium and the United States,
UN Doc. E/AC.32/L.25, Feb. 2, 1950. To “impose” is to “enforce compliance with”:
Concise Oxford Dictionary 682 (9th ed., 1995).
1089
Statement of Mr. Herment of Belgium, UN Doc. A/CONF.2/SR.14, July 10, 1951, at 10.
1090
There is, of course, no international legal duty to launch such a prosecution. The
decisions of Canada and South Africa to prohibit prosecution of asylum-seekers for
illegal entry or presence (see Costello, “Article 31,” at 35–36) thus represent best practice
that goes beyond the strict requirements of Art. 31(1).
1091
Seeing Art. 31(1) as a defense to prosecution “strikes a balance between the interests of the
State and those of the refugee . . . It follows that a conviction in itself is to be seen as a
‘penalty’ imposed in the sense of Art. 31”: Noll, “Article 31,” at 1264–1265. In considering
the circumstances of an Iranian refugee claimant who was charged with possession of a
fraudulent French passport, the New Zealand High Court observed “[i]f it is, indeed, the
case that he is found to be a true refugee then the probabilities are that the charge will be
withdrawn. In any event, his claim to refugee status may well result in a reasonable excuse
defence being successful if the case proceeds to trial [emphasis added]”: AHK v. Police,
[2002] NZAR 531 (NZ HC, Dec. 11, 2001), at [12].
1092
See Chapter 4.2.1 at note 974 ff. 1093 See text at note 842.
1094
See text at note 841. 1095 This position is also taken in Costello, “Article 31,” at 33.

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 514 4 r i g h t s of r ef u g e e s p h y s i c a l l y p r e s e n t

against foreigners entering the territory of the Contracting Party without

permission.”1096 At this stage of the drafting, clearly only one kind of penalty
was contemplated, namely general sanctions for having entered the territory
unlawfully.1097 Simultaneously on the table at the first session of the Ad Hoc
Committee, however, was a joint Belgian–American proposal for Art. 31. It
prefaced its requirement that states “shall not impose penalties on [refugees]
on account of their illegal entry or residence” with the affirmation of a duty to
afford irregularly entering refugees “treatment compatible, from both the
moral and material point of view, with human dignity.”1098 While the language
that would have ensured that refugees could “lead as normal a life as pos-
sible”1099 was dropped because it was deemed “too ambitious,”1100 the
Belgian–American approach nonetheless inspired a subtle, but important,
reframing of Art. 31.
Specifically, the Chairman of the Ad Hoc Committee recommended that
“the article should be re-drafted to read: ‘The High Contracting Parties under-
take not to impose penalties on refugees who enter or are present in their
territory without prior or legal authorization.’”1101 That is, instead of prohibit-
ing the imposition of a particular kind of penalty as had earlier formulations
(“the penalties applied against foreigners entering the territory . . . without
prior permission”), Art. 31 would instead prohibit simply “penalties” imposed
on a particular group of persons, namely “refugees who enter or are present in
their territory without prior or legal authorization.” As adopted by the Ad Hoc
Committee, the text provided that:

The Contracting States shall not impose penalties, on account of his illegal
entry or presence, on a refugee.1102

By moving the reference to “illegal entry or presence” into a subordinate

clause, the spirit of the Chairman’s proposal was maintained, and the
textual meaning of Art. 31 changed from that first proposed by the
Secretary-General. Instead of immunizing refugees from a particular kind
of penalty, the purport of Art. 31 is that penalties (in general) are prohib-
ited if imposed in a particular context, namely as the result of unlawful
1096
Secretary-General, “Memorandum,” at 45.
1097
See Chapter 4.2 at note 954; and text at note 1074.
1098
UN Doc. E/AC.32/L.25, Feb. 2, 1950, at 1.
1099
Statement of Mr. Weis of the International Refugee Organization, UN Doc. E/AC.32/
SR.22, Feb. 2, 1950, at 25.
1100
Statement of the Chairman, Mr. Chance of Canada, ibid. The general spirit of the
Belgian–American amendment was adopted in what became Art. 31(2), expressly
addressing the circumstances in which freedom of movement may be lawfully denied
to irregularly entering refugees.
1101
Statement of the Chairman, Mr. Chance of Canada, ibid.
1102
“Report of the Ad Hoc Committee on Statelessness and Related Problems,” UN Doc. E/
1618, Feb. 17, 1950 (Ad Hoc Committee, “First Session Report”), at 7.

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 4. 2 f r e ed o m f r o m d et e n t i o n a n d p en a l i za t i o n 515

entry or presence.1103 In the French language formulation as well, the

reference to irregular entry or presence defines the reason or context for
the imposition of penalties, not their substance.1104 Taking into account the
plain meaning1105 of a “penalty” as a “loss, disability, or disadvantage”
inflicted for breach of a law or rule,1106 Art. 31 denies governments the
right to subject refugees to any detriment for reasons of their unauthorized
entry or presence in the asylum country.1107

1103
Because of this context-specific limitation, Art. 31(1) is not infringed by the Canadian
practice of sanctioning indirect arrival by deeming it evidence of absence of “subjective
fear” and hence as the basis to refuse refugee protection altogether (see text at note 848) or
by the US “firm resettlement” rule that denies protection on the basis of no more than a
prior offer of protection even if not subsisting (see text at note 850). Because both these
practices focus on the (indirect) mode of arrival rather than the illegality of entry or
presence, Art. 31(1) is not engaged. The practices are nonetheless unlawful as they pose
the risk of refoulement contrary to Art. 33, amounting as they do to procedures that fail
accurately to identify and protect Convention refugees for reasons not foreseen by the
Convention: see Chapter 4.1.2 at note 267.
1104
“Les Etats contractants n’appliqueront pas de sanctions pénales, du fait de leur entrée ou
de leur séjour irréguliers, aux réfugiés qui, arrivant directement du territoire où leur vie
ou leur liberté était menacée au sens prévu par l’article premier, entrent ou se trouvent sur
leur territoire sans autorisation, sous la réserve qu’ils se présentent sans délai aux
autorités et leur exposent des raisons reconnues valables de leur entrée ou présence
irrégulières [emphasis added]”: Refugee Convention, at Art. 31(1). Despite the logic of
seeing a reasonably broad range of practices resulting in a loss as “penalties” as that term
is commonly understood, objection may be taken to such a broad reading on the grounds
that it is at odds with the equally authoritative French language text of Art. 31 which
provides for immunity only from “sanctions pénales” – thus seeming to restrict the ambit
of Art. 31 to penalties understood in the narrower, criminal law sense. To counter this
interpretation, Goodwin-Gill rightly points to the fact that the Human Rights Committee
has refused to restrict the notion of a “penalty” in the Civil and Political Covenant’s
prohibition of ex post facto criminality in such a narrow way – even though this is a
provision with a decidedly criminal law orientation. “In seeking the most appropriate
interpretation, the deliberations of the Human Rights Committee or scholars relating to
the interpretation of the term ‘penalty’ in Article 15(1) of the Civil and Political Covenant
can be of assistance”: Goodwin-Gill, “Article 31,” at 194. The propriety of referencing the
authoritative interpretation of similar terms under cognate treaties is discussed in
Chapters 2.2 at note 88 and 2.3 at note 141.
1105
See Vienna Convention on the Law of Treaties, 1155 UNTS 331 (UNTS 18232), done
May 23, 1969, entered into force Jan. 27, 1980 (Vienna Convention), at Art. 31(1).
1106
Oxford English Dictionary (2nd edn., 1989), Vol. XIII, at 461.
1107
A broad reading of the notion of a “penalty” in Art. 31 is moreover consistent with the
approach of the UN Human Rights Committee, which has determined that “[w]hether
the word ‘penalty’ . . . should be interpreted narrowly or widely, and whether it applies to
different kinds of penalties, ‘criminal’ and ‘administrative,’ . . . must depend on other
factors. Apart from the text . . . regard must be had, inter alia, to its object and purpose”:
Van Duzen v. Canada, HRC Comm. No. 50/1979, UN Doc. CCPR/C/15/D/50/1979,
decided Apr. 7, 1982, at [10.2]. The Committee has since affirmed this basic understand-
ing of a “penalty,” noting in particular that the “terms and concepts in the Covenant are
independent of any national legal system and that . . . [they have] an autonomous

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 516 4 r i gh t s of ref ug ees physic ally present

For example, the assignment of refugees who arrive irregularly to abbreviated

procedures is in essence a penalty inflicted for unlawful entry. When a summary
procedure is resorted to not on the grounds of the substantive insufficiency of a
claim,1108 but rather to sanction a refugee for his or her mode of entry, such
procedures take on a decidedly punitive character. Because the essential purpose
of Art. 31 is to insulate refugees from penalties for the act of crossing a border
without authorization, a refugee may not lawfully be denied access to the
ordinary legal entitlement to a complete refugee status inquiry simply because
he or she has used false documents to enter the country, or otherwise entered in
contravention of migration control laws. As the Supreme Court of Canada
observed, “obstructed or delayed access to the refugee process is a ‘penalty’
within the meaning of Art. 31(1) of the Refugee Convention.”1109
For this reason, US rules that prohibit refugee claimants subject to
reinstated removal orders from applying for asylum (limiting them to seeking
only bare-bones withholding of removal) are in substance a penalty applied for
unlawful entry.1110 Even inadvertent procedural penalties may breach Art. 31,
as in the case of the American practice of diverting all refugees and others
arriving without proper documents into an “expedited removal” process in
which they enjoy significantly reduced due process rights and no appeal
rights.1111 Although persons able to show a “credible fear” of being persecuted

meaning”: Sayadi and Vinck v. Belgium, HRC Comm. No. 1472/2006, UN Doc. CCPR/C/
94/D/1472/2006, decided Oct 22, 2008, at [10.11]. Taking account of the decision
recounted above explicitly to conceive Art. 31 not as a prohibition of a particular kind
of penalty, but instead as a prohibition of penalties imposed on a particular group of
persons, namely “refugees who enter or are present in their territory without prior or legal
authorization,” there is no sound basis to interpret the notion of a “penalty” narrowly.
1108
Summary procedures are allowable under international law in the case of persons who,
for example, make no arguable claim to refugee status: UNHCR Executive Committee
Conclusion No. 30, “The Problem of Manifestly Unfounded or Abusive Applications for
Refugee Status or Asylum” (1983), at [d].
1109
B010 v. Canada, [2015] SCC 58 (Can. SC, Nov. 27, 2015), at [57]. The Court moreover
quoted with approval the observation of Gallagher and David (The International Law of
Migrant Smuggling (2014), at 165) that “an individual cannot be denied refugee status –
or, most important, the opportunity to make a claim for such status through fair
assessment procedures – solely because of the way in which that person sought or secured
entry into the country of destination”: ibid.
1110
A dissenting opinion in an unsuccessful challenge to this policy observed that “[b]ecause
of the importance of [Art. 31], ‘penalties’ cannot be interpreted as merely the assessment
of a fine or imprisonment, but must be applied flexibly to assess whether a state party is
denying the full scope of refugee protection to a particular individual on account of his or
her illegal entry . . . [B]ecause the majority’s approach categorically prevents an alien in
Garcia’s situation from applying for relief that would be available to other aliens, I would
consider this administrative roadblock to constitute an impermissible ‘penalty’ that is
imposed on Garcia, likely triggering a violation of Article 31”: Victor Garcia Garcia v.
Attorney General, 856 F. 3d 27 (US CA1, May 3, 2017), per Stahl J. in dissent.
1111
See text at note 843.

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 4.2 f r e e d o m f r o m d et e n t i o n an d p en a l i z a t i o n 517

are in principle exempted from the expedited removal system, in practice the
procedure to assess exemption from this penalty is subject to myriad deficien-
cies,1112 resulting in the severe truncation of due process rights. The British
rule that imposes criminal penalties for producing invalid travel documents or
arriving without passports is similarly problematic. Despite the enactment of
an amendment recognizing a defense specifically for refugees,1113 many refu-
gees continue in practice to be convicted of the offense.1114 In the case of both
the US expedited removal system and the British penalties for use of false
documents Art. 31 is infringed not by specific intention, but rather by virtue of
the inadequacy of the procedural mechanisms put in place dependably to
exempt refugees from general forms of penalization.
In contrast, a breach of Art. 31 may be avoided where, as under
European Union rules, the nature of the abbreviated procedure to which
persons using false documents are subjected1115 is required to meet all of
the usual procedural requirements for the fair assessment of a claim to

1112
See text at notes 843–846. The tendency of some immigration judges to encourage the
withdrawal of asylum claims in exchange for a grant of bare-bones withholding of
removal (see text at note 846) is especially worrisome. Problems with this procedure
are long standing. At the end of the last century it was reported that “[d]ifficulties were
experienced in the process with translation, with access to detainees, and with notifica-
tion of material developments in the cases. These cases suggest that such problems can
impact the substantive determinations made during the credible fear process”: Hastings
College of the Law Center for Human Rights and International Justice, “Report on the
Second Year of Implementation of Expedited Removal” (1999), at 120. Ironically, if the
nature of the penalty imposed by the United States for illegal entry is defined by reference
to the result of the denial of due process rights – that is, expulsion – it would follow that
the American law does not contravene Art. 31: see Chapter 4.2.3. It would of course be
otherwise if the removal led to refoulement: see Chapter 4.1.2.
1113
The evolution of the statutory defense is discussed in R v. Abdalla Mohamed, [2010]
EWCA Civ 2400 (Eng. CA, Oct. 19, 2010), at [5]–[10].
1114
Despite the enactment of s. 31 of the 1999 Immigration and Asylum Appeals Act as a
defense to both crimes of arriving without travel documents and producing invalid
documents, a 2012 report found that the “relevant prosecution offices that service
airports, ports and immigration offices may have been prosecuting offences of this kind
without any regard to Article 31, Refugee Convention or the defences in domestic
legislation for several years. Defence lawyers appear to have advised asylum seekers/
refugees in these cases to plead guilty when there were potential defences available to
them”: Criminal Cases Review Commission, “Annual Report and Accounts 2011/12,”
July 2012, at 15–16. According to one estimate, there were about fifty cases of wrongful
convictions of refugees over a ten-year period in two courts alone: A. Aliverti,
“Prosecuting Refugees: Wrongful Convictions, Unlawful Practices,” Border
Criminologies Blog, Mar. 20, 2017. The disturbing propensity of lawyers to fail even to
advise refugee clients of the defense was noted in R v. Koshi Pitshou Mateta, [2013]
EWCA Crim 1372 (Eng. CA, July 30, 2013), at [56]; see also R v. Arash Zaredar, [2016]
EWCA Crim 877 (Eng. CA, May 19, 2016), at [12]–[16] (reversing a guilty plea of a
refugee claimant whose lawyer failed to advise him of the s. 31 defense).
1115
EU Procedures Directive, at Art. 31(8)(c)–(d).

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 518 4 r igh ts of r efug ee s ph ys ica lly p r es en t

refugee status.1116 Indeed, even under earlier European practice only

refugee claimants who continued to insist on the validity of the false
documentation employed to secure entry, and who actually based their
claims on the false identity, could be assigned to an abbreviated proced-
ure.1117 As such, the penalty was in essence imposed for deliberate and
calculated post-arrival deception, not on account of illegal entry or
presence.1118
Also prohibited is the punitive denial of economic or social benefits to
refugees who arrive without documents or otherwise in contravention of
immigration rules.1119 The Canadian rule that penalizes those arriving as
part of a smuggled group by delaying access to permanent residence1120
imposes a “loss, disability, or disadvantage” based solely on the fact of an
unlawful mode of arrival – thus falling afoul of Art. 31. A British tribunal
similarly determined that rules denying the usual refugee income support to
those failing to claim asylum at immigration control was a penalty prohibited
by Art. 31.1121 Because such a denial is both a serious loss (indeed, on the facts
of the British case it was subsequently determined to pose the risk of inhuman
and degrading treatment)1122 and imposed by reason of failure to conform to
the domestic policy requiring a refugee to regularize his status immediately
upon reaching the border, it amounted to a penalty for illegal entry or
presence. As the tribunal considering the matter observed, however, the
response required to align the rule with Art. 31 was actually quite simple:

1116
“Member States may prioritise any examination in accordance with the basic principles
and guarantees of Chapter II in particular . . . where the application is likely to be well-
founded; [or] where the applicant is vulnerable . . . or is in need of special procedural
guarantees, in particular unaccompanied minors”: ibid. at Art. 31(7).
1117
Resolution on Manifestly Unfounded Applications for Asylum, Doc. COM(2002) 326, at
[9(a)].
1118
Ibid. at [9(b), (f)]. This conclusion is reinforced by the fact that refugees who arrived
legally could also be relegated to a truncated procedure if they deliberately made false
representations, or otherwise failed to comply with their substantive legal obligations.
1119
This position is also adopted in Noll, “Article 31,” at 1264, and Costello, “Article 31,”
at 37.
1120
See note 899.
1121
“In Adimi, it was unsurprisingly held that convictions by criminal courts were penalties
under Article 31. [Counsel for the government] did not dispute that civil penalties would
also fall within Article 31, but he submitted that a penalty involved a removal of a right
that a person previously had. [Counsel for the claimant], on the other hand, submitted
that any treatment that was less favourable than that accorded to others and was imposed
on account of illegal entry was a penalty within Article 31 unless objectively justifiable on
administrative grounds. I prefer [the claimant’s] submission. It seems to me that [the
government’s] approach puts form above substance and would enable contracting states
to evade Article 31 by the use of one form of words in domestic legislation rather than
another”: UK Soc. Sec. Comm. Dec. No. CIS/4439/1998 (Nov. 25, 1999), at [16].
1122
R (Limbuela) v. Secretary of State for the Home Department, [2005] UKHL 66 (UK HL,
Nov. 3, 2005).

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 4.2 f r e e do m f r o m det en t i o n and penalization 519

eliminate the duty to claim asylum “while clearing immigration control at

the port of entry” in favor of a duty to seek protection only “without
delay,”1123 thereby allowing the context-sensitive inquiry required by the
Refugee Convention to proceed.1124 Under this approach, the refugee is
still incentivized to come forward and make his protection claim to
authorities, but that incentive operates in a way that takes real account
of the imperatives and uncertainties of coerced flight to safety – precisely
as the drafters intended.

4.2.3 Expulsion
There are two exceptions to the general rule that Art. 31 bars the imposition of
penalties on refugees for illegal entry or presence. First, Art. 31 in no way
constrains a state’s prerogative to expel an unauthorized refugee from its
territory. And second, as discussed below,1125 some restrictions on the freedom
of movement of irregularly entering asylum-seekers are allowed pending
regularization of status.
It may seem ironic that an asylum country which is generally prohibited from
imposing penalties on refugees may nonetheless expel them. The drafters were,
however, unambiguous on this point,1126 with Colombia going so far as to
suggest an amendment that would have formally disavowed any duty to grant
territorial asylum to refugees.1127 The Canadian representative successfully
argued that no modification of the text was required, since “the consensus of
opinion was that the right [to expel refugees who illegally enter a state’s territory]
would not be prejudiced by adoption of Article [31].”1128 His suggestion that “he

1123
“Article 31 does not prohibit the imposition of such a penalty on a refugee who enters the
United Kingdom illegally and then fails to present himself to authorities ‘without delay.’
If, therefore, the phrase ‘on his arrival’ in regulation 70(3A)(a) is construed in a manner
which gives it the same effect as the phrase ‘without delay’ in Article 31, there is no
conflict between the provisions. Construing the former phrase as meaning ‘while clearing
immigration control at the port of entry’ is clearly not consistent with the construction of
the latter phrase . . . I therefore accept . . . that Article 31 provides an additional reason for
not construing ‘on . . . arrival’ . . . narrowly”: UK Soc. Sec. Comm. Dec. No. CIS/4439/
1998 (Nov. 25, 1999), at [18]. On the facts of the case, it was determined that unless the
statutory requirement to seek protection “on his arrival” was construed to include
applications made subsequent to the initial clearing of immigration control, the denial
of income support benefits on that ground would amount to a penalty imposed for
reasons of illegal entry, contrary to Art. 31 of the Refugee Convention.
1124
See Chapter 4.2.1 at note 990. 1125 See Chapter 4.2.4.
1126
See e.g. Statement of Mr. Fritzler of Austria, UN Doc. A/CONF.2/SR.13, July 10, 1951, at
12; and Statement of Mr. Herment of Belgium, ibid. at 14.
1127
UN Doc. A/CONF.2/55. “[T]erritorial asylum could not be regarded as a duty incumbent
on states”: Statement of Mr. Giraldo-Jaramillo of Colombia, UN Doc. A/CONF.2/SR.13,
July 10, 1951, at 12.
1128
Statement of Mr. Chance of Canada, UN Doc. A/CONF.2/SR.13, July 10, 1951, at 12–13.

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would even regard silence on the part of the Conference as endorsement of

his point of view”1129 led Colombia to withdraw its amendment.1130 Indeed,
the Netherlands representative remarked that “in view of the Canadian
representative’s statement . . . that he would interpret the silence of represen-
tatives as tacit approval of the Canadian Government’s interpretation of
article [31], he would remain silent.”1131 As such, the Irish Court of
Appeal’s worry that Art. 31 might interfere with the operation of an orderly
system to allocate asylum responsibilities1132 is in fact answered by that
article itself: a “first country of arrival” rule cannot be successfully attacked
under Art. 31, as the sanction imposed under such systems is precisely
expulsion to another non-persecutory state.1133
The potentially devastating impact of the clear decision not to pre-
clude expulsion under Art. 31 is mitigated by two key factors. First,
whatever right governments have to expel refugees is constrained by Art.
33’s duty of non-refoulement.1134 Any expulsion of a refugee must there-
fore not expose the refugee, directly or indirectly, to a risk of being
persecuted.
Second, in contrast to the situation in 1951, the laws of most state parties
today explicitly or implicitly authorize refugees in flight from persecution to
enter their territory in search of protection. Refugees arriving to seek protec-
tion who have complied with reasonable formalities for the assessment of
their claims in such states are “lawfully in” their territory,1135 and accordingly
benefit from Art. 32’s constraints on expulsion until and unless fairly deter-
mined not to qualify as refugees. As described below,1136 this means that
states must base any expulsion of a refugee (or refugee claimant) on national
security or public order grounds, and that any decision to expel must be
reached on the basis of a fair determination process. Thus, even expulsion
practices immune from scrutiny under Art. 31 will often be foreclosed by
Art. 32.

1129
Ibid. at 13.
1130
“[I]n the light of the foregoing discussion, the Colombian delegation would not oppose
paragraph 1 of Article [31] . . . Since it seemed to be the general feeling of all delegations
that the granting of asylum remained a matter for the discretion of individual States, the
Colombian delegation, which shared that view, would not press its amendment”:
Statement of Mr. Giraldo-Jaramillo of Colombia, ibid. at 14.
1131
Statement of Baron van Boetzelaer of the Netherlands, UN Doc. A/CONF.2/SR.14, July
10, 1951, at 8.
1132
BMIF v. International Protection Appeals Tribunal, [2018] IECA 36 (Ir. CA, Feb. 19,
2018), at [18].
1133
“The drafters . . . emphasized that expulsion does not fall under the prohibition of
penalties in Art. 31, para. 1. Given that the provision is situated in the context of
immigration control, this caveat is hardly surprising”: Noll, “Article 31,” at 1263.
1134
See Chapter 4.1. 1135 See Chapter 3.1.3 at note 133. 1136 See Chapter 5.1.

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4.2.4 Provisional Detention and Other Restrictions on Freedom

of Movement
States commonly respond to the illegal entry or presence of refugees by detaining
them on the basis of the exception to the duty of non-penalization foreseen by Art.
31(2).1137 This provision reflects the view of the drafters of the Convention that
governments required the discretion to detain unauthorized refugees “before they
had reached an understanding with the authorities of the recipient countries.”1138
The right to detain refugees arriving unlawfully is, however, subject to two
key constraints.
First, in accordance with Art. 9 of the Civil and Political Covenant, no
person under a state’s jurisdiction, including a refugee, may be subjected to
arbitrary arrest or detention.1139 As detailed below,1140 Art. 9 does not prohibit
detention, but rather sets substantive and procedural requirements for resort to
detention.1141 This guarantee applies wherever a state party exercises

1137
UNHCR defines detention as “the deprivation of liberty or confinement in a closed place
which an asylum-seeker is not permitted to leave at will, including, though not limited to,
prisons or purpose-built detention, closed reception or holding centres or facilities”:
UNHCR, “Guidelines on the Applicable Criteria and Standards Relating to the Detention
of Asylum Seekers and Alternatives to Detention” (2012), at [5]. All detention imposed
for unlawful entry or presence is a penalty under Art. 31, and is expressly regulated by
para. 2 thereof; see e.g. UNHCR, “Global Roundtable on Alternatives to Detention of
Asylum-Seekers, Refugees, Migrants and Stateless Persons: Summary Conclusions,” May
11–12, 2011, at [5] (“[T]he 1951 Convention relating to the Status of Refugees prohibits
penalties – such as detention – from being imposed on refugees on account of their illegal
entry or presence”). See also Aivazov v. Refugee Status Appeals Authority, [2005] NZAR
740 (NZ HC, Aug. 26, 2005), at [33]. But see Costello, “Article 31,” at 38, arguing that “a
distinction must be drawn between punitive and non-punitive detention,” with the
former in breach of Art. 31(1). This seems unnecessarily to complicate analysis since
detention that is punitive will never satisfy the requirement that detention can be
adjudged lawful only if it serves a legitimate purpose: see text at notes 1159–1162.
1138
Statement of Mr. Rain of France, UN Doc. E/AC.32/SR.15, Jan. 27, 1950, at 15. As Noll
rightly observes, “Article 31, para. 2 both legitimates and curtails States’ right to impose
restrictions on the movement of refugees unlawfully present”: Noll, “Article 31,” at 1266.
1139
UNHCR, “Guidelines on the Applicable Criteria and Standards Relating to the Detention
of Asylum Seekers and Alternatives to Detention” (2012), at [12]. “The right to personal
liberty is fundamental and extends to all persons, including . . . asylum seekers, irrespect-
ive of citizenship, nationality or migratory status”: UN Working Group on Arbitrary
Detention, “Revised Deliberation No. 5 on Deprivation of Liberty of Migrants,” Advance
Edited Version, Feb. 7, 2018, at [7]. As such, “[r]efugees entering a state party are
immediately entitled to the protection of Art. 9 of the ICCPR, stipulating that everyone
has the right to liberty and security of person, and may not be subjected to arbitrary arrest
or detention”: “The Michigan Guidelines on Refugee Freedom of Movement,” (2017) 39
Michigan Journal of International Law 1, at [14].
1140
See text at note 1156 ff.
1141
“Article 9 recognizes that sometimes deprivation of liberty is justified, for example, in the
enforcement of criminal laws. Paragraph 1 requires that deprivation of liberty must not
be arbitrary, and must be carried out with respect for the rule of law”: UN Human Rights

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jurisdiction – including, for example, at a state’s border or in a so-called transit

zone.1142 The German Federal Court of Justice therefore erred as a matter of
international law in treating detention of a refugee in a transit zone1143 as
exempt from the legal duty to avoid a deprivation or limitation of liberty.1144
As UNHCR rightly insists, “[r]egardless of the name given to a particular place
of detention, the important questions are whether an asylum-seeker is being
deprived of his or her liberty de facto and whether this deprivation is lawful
according to international law.”1145
Second, the subset of unlawfully arriving refugees meeting the requirements
of Art. 31(1) of the Refugee Convention1146 – that is, those who voluntarily

Committee, “General Comment No. 35: Article 9 (Liberty and Security of Person)”
(2014), UN Doc. CCPR/C/GC/35, Dec. 16, 2014, at [10]. Thus, “the human right of
personal liberty does not strive toward the ideal of a complete abolition of State measures
that deprive liberty; rather, it merely represents a procedural guarantee”: W. Schabas, UN
International Covenant on Civil and Political Rights: Nowak’s CCPR Commentary (2019)
(Schabas, Nowak’s CCPR Commentary), at 238.
1142
See Chapter 3.1.1. 1143 See text at note 898.
1144
Dec. No. V ZB 170/16 (Ger. FCJ (Bundesgerichtshof), Mar. 16, 2017), unofficial transla-
tion provided by Prof. Nora Markard.
1145
UNHCR, “Guidelines on the Applicable Criteria and Standards Relating to the Detention
of Asylum Seekers and Alternatives to Detention” (2012), at [7].
1146
Noll, relying on the generality of the “heading” of Art. 31 (“refugees unlawfully in the country
of origin”) and the instrumentalist concern to grant as many refugees as possible the benefits
of Art. 31(2), suggests that Art. 31(2) applies to a broader class than that defined in Art. 31(1):
Noll, “Article 31,” at 1267–1268; analysis adopted in Costello, “Article 31,” at 44. This view
aligns with the position first taken by Grahl-Madsen, based on his concern not to delay access
to Art. 31(2) while the criteria for entitlement set by Art. 31(1) are assessed: A. Grahl-
Madsen, The Status of Refugees in International Law (vol. II, 1972) (Grahl-Madsen, Status of
Refugees II), at 419–421. The interpretation advanced here, in contrast, is that the provisos
stipulated in Art. 31(1) also govern entitlement to freedom from general norms of detention
for unauthorized entry, set by Art. 31(2); this view is shared by e.g. Robinson, History, at 151–
154; Weis, Travaux, at 303–304; and UNHCR, “Global Consultations on International
Protection: Summary Conclusions on Article 31 of the 1951 Convention” (Nov. 2001), at
[5]. The linkage between the class defined by Art. 31(1) and rights set by Art. 31(2) is clear
from the literal meaning of the reference to “such refugees” found twice in Art. 31(2), and is
affirmed by the last antecedent rule of construction. Indeed, the French text “ces réfugiés,”
contrasting with “tels réfugiés” used in Arts. 8 and 19 of the Convention, points to an
especially proximate connection. While it is true that Art. 31(2) achieved its final form before
the Conference of Plenipotentiaries adopted the references in Art. 31(1) to refugees “coming
directly from a territory where their life or freedom was threatened in the sense of Article 1,”
it is clear that the Ad Hoc Committee intended a comparable restriction of entitlement to
Art. 31(2) rights. Under the joint Belgian–American redrafting of Art. 31 considered by the
Ad Hoc Committee, UN Doc. E/AC.32/L.25, Feb. 2, 1950, the relevant text read: “Provided
that such refugees present themselves without delay to the authorities and show good cause
for their entry, the High Contracting Parties shall not impose penalties on them on account
of their illegal entry or presence. The High Contracting Parties nonetheless reserve the right
to apply to such refugees necessary police measures regarding their accommodation, resi-
dence, and movement in the territory until such time as it is possible to take a decision
regarding their legal admission to the country of reception or their admission to another

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 4.2 f r e e do m f r o m det en t i o n and penalization 523

report to asylum state authorities within a reasonable time after crossing the
frontier and who satisfy authorities that their unlawful entry or presence was
necessitated by the urgency of their search for protection1147 – are not only
immune from arbitrary detention, but more generally from any other unneces-
sary “restrictions” on “movement.”1148 Art. 31(2) of the Refugee Convention
also requires that such refugees be released from any refugee-specific detention
or other restriction on freedom of movement as soon as they are formally
admitted to the asylum state’s refugee status verification procedure or other-
wise expressly or impliedly authorized to remain at least temporarily in that
state’s territory.1149 At this point, the refugee is “lawfully in” the asylum state
(though not yet “lawfully staying” there) and thus has the right to move freely
and to choose his or her place of residence in the asylum state subject only to
regulations that apply to aliens generally.1150

4.2.4.1 Freedom from Arbitrary Detention

The basic requirement in Art. 31(2) of the Refugee Convention is that any
provisional detention of a refugee be “necessary.”1151 This was unquestionably
country [emphasis added].” The draft adopted by the Ad Hoc Committee on the same day
(UN Doc. E/AC.32/L.26, Feb. 2, 1950) split this formulation into two paragraphs, retaining
the reference in the second paragraph (governing restrictions on movement) to “such
refugees.” The view that the beneficiary class for all of Art. 31 is the same is not only a
function of plain language as confirmed by the drafting history, but moreover advances the
instrumentalist goal of the drafters (see Chapter 4.2.1 at note 980) to incentivize refugees to
come forward rather than going underground as only these refugees would secure access to
the presumption against detention set by Art. 31(2). Nor is it the case that failure to meet the
general beneficiary class definition of Art. 31 leaves other refugees unlawfully present without
legal rights. To the contrary, as explained below, they remain entitled to the protections of, in
particular, Art. 9(1) of the Civil and Political Covenant, pursuant to which states must justify
constraints on freedom of movement.
1147
See Chapter 4.1.1. 1148 Refugee Convention, at Art. 31(2).
1149
See generally Chapter 3.1.3.
1150
As described in Chapter 5.2, Art. 12 of the Civil and Political Covenant provides for a cognate
right to liberty of movement and freedom to choose one’s residence once an individual is
“lawfully within the territory.” It does not, however, require the termination of refugee-
specific constraints as such, but rather requires only that constraints on movement and
residence be provided by law and be necessary to protect one of five enumerated objectives.
The right to full freedom of movement under Art. 12 of the Civil and Political Covenant also
inheres with “lawful presence,” providing much the same entitlements as Art. 26 of the
Refugee Convention. The main difference is that Art. 31(2) explicitly requires the shift (“and
such restrictions shall only be applied until their status is regularized”) whereas the Civil and
Political Covenant simply requires the shift to a more comprehensive understanding of
liberty of movement and choice of residence once lawful presence (not stay) is established.
1151
The meaning of “necessary” restrictions on freedom of movement can be difficult to discern.
The traditional approach of UNHCR was to deem only certain reasons for detention to meet
the necessity criterion – specifically, to deal with issues of identity, elements of the claim,
document destruction, national security, or public order: see UNHCR, “Revised Guidelines
on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers,” Feb.

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an important bulwark against abuse of the power to detain refugees when the
Convention was adopted in 1951. But with the subsequent entry into force of Art.
9(1) of the Civil and Political Covenant, much of the core value of Art. 31(2) has
been eclipsed by the Covenant’s broad-ranging prohibition of “arbitrary arrest or
detention.”1152 Because, as detailed below, detention is only non-arbitrary1153 if
shown to be not only “necessary” (in the sense that there is no “less invasive means
of achieving the same ends”)1154 but also conceived and implemented to take
account of “elements of inappropriateness, injustice, lack of predictability, and due
process of law,”1155 it is the higher Covenant standard that must be met. Indeed,
Art. 9 of the Covenant not only sets a substantive benchmark for lawful detention,
but also requires that the detained person have the ability “to take proceedings
before a court, in order that that court may decide without delay on the lawfulness
of his detention and order his release if the detention is not lawful.”1156 Given the
comprehensive nature of Art. 9 of the Covenant, there is no need for a refugee to
fall within the beneficiary class of Art. 31 of the Refugee Convention in order to
benefit from these most fundamental forms of protection.1157

1999, at Guideline 3. As described below, the Covenant’s focus on “arbitrariness” may

facilitate a more broad-ranging inquiry.
1152
Civil and Political Covenant, at Art. 9(1).
1153
“[T]he prohibition of arbitrariness was adopted by the [drafters] as an alternative to an
exhaustive listing of all permissible cases of deprivation of liberty . . . [T]he majority [of the
drafters of the Covenant] stressed that its meaning . . . contained elements of injustice,
unpredictability, unreasonableness, capriciousness and disproportionality, as well as the
Anglo-American principle of due process of law”: Schabas, Nowak’s CCPR Commentary,
at 249.
1154
UN Human Rights Committee, “General Comment No. 35: Article 9 (Liberty and
Security of Person)” (2014), UN Doc. CCPR/C/GC/35, Dec. 16, 2014, at [18].
1155
Ibid. at [12].
1156
Civil and Political Covenant, at Art. 9(4). As the Human Rights Committee determined in
the context of a review of the detention of asylum-seekers, this requirement is only met
where the court review “is, in its effects, real and not merely formal.” In particular, the
court’s authority “must include the possibility of ordering release, [and not be] limited to
[consideration of] mere compliance with domestic law”: A v. Australia, HRC Comm. No.
560/1993, UN Doc. CCPR/C/59/D/560/1993, decided April 30, 1997, at [9.5]. The
Human Rights Committee has noted that in the case of Australia’s detention system,
“[j]udicial review of detention would have been restricted to an assessment of whether the
author was a non-citizen without valid entry documentation, and, by direct operation of
the relevant legislation, the relevant courts would not have been able to consider argu-
ments that the individual detention was unlawful in terms of the Covenant. Judicial
review of the lawfulness of detention under article 9, paragraph 4, is not limited to mere
compliance of the detention with domestic law but must include the possibility to order
release if the detention is incompatible with the requirements of the Covenant, in
particular those of article 9, paragraph 1”: Baban v. Australia, HRC Comm. No. 1014/
2001, UN Doc. CCPR/C/78/D/1014/2001, decided Aug. 6, 2003, at [7.2].
1157
“Article 9 guarantees [rights] to everyone. ‘Everyone’ includes, among others . . . aliens,
refugees and asylum seekers”: UN Human Rights Committee, “General Comment No.
35: Article 9 (Liberty and Security of Person)” (2014), UN Doc. CCPR/C/GC/35, Dec. 16,

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 4.2 f r e e do m f r o m det en t i o n and penalization 525

The UN Human Rights Committee has helpfully summarized the role of

Art. 9 of the Covenant as it relates to immigration detention:
Detention in the course of proceedings for the control of immigration is
not per se arbitrary, but the detention must be justified as reasonable,
necessary, and proportionate in the light of the circumstances and
reassessed as it extends in time. Asylum seekers who unlawfully enter a
State party’s territory may be detained for a brief initial period in order to
document their entry, record their claims and determine their identity if it
is in doubt. To detain them further while their claims are being resolved
would be arbitrary in the absence of particular reasons specific to the
individual, such as an individualized likelihood of absconding, a danger
of crimes against others or a risk of acts against national security. The
decision must consider relevant factors case by case and not be based on a
mandatory rule for a broad category; must take into account less invasive
means of achieving the same ends, such as reporting obligations, sureties
or other conditions to prevent absconding; and must be subject to periodic
re-evaluation and judicial review.1158
As this formulation makes clear, the most fundamental constraint set by Art.
9 is that the detention must be in pursuit of a legitimate goal.1159 Because
detention “is not an end in itself,”1160 its reasonableness is “limited by the
2014, at [3]. Indeed, “[t]he fundamental guarantee against arbitrary detention is non-
derogable, insofar as even situations covered by article 4 [of the Covenant] cannot justify
a deprivation of liberty that is unreasonable or unnecessary under the circumstances”:
ibid. at [66]. See “Report of the Special Rapporteur, submitted pursuant to Commission
on Human Rights Resolution 2002/62,” UN Doc. E/CN.4/2003/85 (Dec. 30, 2002) for a
detailed examination of the various ways in which non-citizens are subjected to
detention.
1158
UN Human Rights Committee, “General Comment No. 35: Article 9 (Liberty and
Security of Person)” (2014), UN Doc. CCPR/C/GC/35, Dec. 16, 2014, at [18]. The
Human Rights Committee’s reference to the propriety of detention to prevent a refugee
from absconding is, of course, based upon the requirements of the Civil and Political
Covenant rather than the Refugee Convention. A similar approach has been taken under
the European Convention on Human Rights. In Amuur v. France, [1996] ECHR 25
(ECtHR, June 25, 1996), the European Court of Human Rights determined that
“[h]olding aliens in the international zone does indeed involve a restriction upon liberty
. . . Such confinement, accompanied by suitable safeguards for the persons concerned, is
acceptable only to enable States to prevent unlawful immigration while complying with
their international obligations, particularly under the 1951 Geneva Convention relating
to the Status of Refugees and the European Convention on Human Rights. States’
legitimate immigration restrictions must not deprive asylum-seekers of the protection
afforded by these conventions”: ibid. at [43].
1159
It should be noted, however, that “[t]he Covenant does not provide an enumeration of the
permissible reasons for depriving a person of liberty”: UN Human Rights Committee,
“General Comment No. 35: Article 9 (Liberty and Security of Person)” (2014), UN Doc.
CCPR/C/GC/35, Dec. 16, 2014, at [14].
1160
Plaintiff S4/2014 v. Minister for Immigration and Border Protection, [2014] HCA 34 (Aus.
HC, Sept. 11, 2014), at [26].

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purposes for which the detention is being effected.”1161 Some goals are simply
illegitimate; in particular, detention may not be resorted to in order to punish
refugees for seeking asylum or to deter other refugees from doing so.1162 As
concluded by the Supreme Court of Papua New Guinea,

treating [refugees] as prisoners irrespective of their circumstances or their

status save only as asylum seekers is to offend against their rights and freedoms
as guaranteed by the various conventions on human rights at international
law.1163

Because refugees have a clear right to arrive and to seek protection, the US
District Court for the District of Columbia rightly refused to approve the
government’s “no release policy” adopted in response to the arrival of
Central American refugees during the summer of 2014:1164
1161
Ibid. “Detention can only be exceptionally resorted to for a legitimate purpose. Without such a
purpose, detention will be considered arbitrary, even if entry was illegal”: UNHCR,
“Guidelines on the Applicable Criteria and Standards Relating to the Detention of Asylum
Seekers and Alternatives to Detention” (2012), at [21]. Malta’s practice of detaining refugees
only if they arrive by air (see text at note 887) does not even present a plausible rational basis for
detention. In the context of a pandemic or other health emergency, “[q]uarantine measures
may, for example, be a legitimate restriction on the right to freedom of movement provided
they meet international human rights standards. By contrast, health concerns do not justify the
systematic or arbitrary use of immigration detention”: UNHCR, “Beware Long-Term Damage
to Human Rights and Refugee Rights from the Coronavirus Pandemic,” Apr. 22, 2020.
1162
“Detention for the purposes of deterrence is impermissible”: Attorney General v. Refugee
Council of New Zealand Inc., [2003] 2 NZLR 577 (NZ CA, Apr. 16, 2003), at [101]. UNHCR’s
analysis that “detention policies aimed at deterrence are generally unlawful under inter-
national human rights law as they are not based on an individual assessment as to the necessity
to detain [emphasis added]” thus arguably reaches the right conclusion for the wrong reason:
UNHCR, “Guidelines on the Applicable Criteria and Standards Relating to the Detention of
Asylum Seekers and Alternatives to Detention” (2012), at [3]. To be preferred is the more
straightforward view that “[s]eeking asylum is a universal human right, the exercise of which
must not be criminalized”: UN Working Group on Arbitrary Detention, “Revised
Deliberation No. 5 on Deprivation of Liberty of Migrants,” Advance Edited Version, Feb. 7,
2018, at [9].
1163
Belden Norman Namah v. Minister for Foreign Affairs and Immigration, Dec. No. SC1497
(PNG SCJ, Apr. 26, 2016), at [69]. As observed by the High Court of Australia, the Namah
decision “plainly held that treatment . . . contravened provisions of the Constitution of PNG
and was unsupported by PNG law. The Supreme Court might also be interpreted as having
held that the forceful bringing of [refugees] to the Manus RPC under the purported authority
of PNG law contravened provisions of the Constitution of PNG and was unsupported by
PNG law”: Plaintiff S195/2016 v. Minister for Immigration and Border Protection, [2017]
HCA 31 (Aus. HC, Aug. 17, 2017), at [25]. The Court of Justice of the European Union has
similarly determined that a state “may not hold a person in detention for the sole reason that
he has made an application for international protection”: JN v. Staatssecretaris voor Veiligheid
en Justitie, Case No. C-601/15 PPU (CJEU, Feb. 15, 2016), at [61].
1164
The use of detention by the United States in order to deter refugees has a long history. In
an earlier decision involving the routine detention of Haitians arriving by boat, the
Attorney General determined that “there is a concern that the release of aliens . . .

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The Government here . . . claims that, in determining whether an

individual claiming asylum should be released, [officials] can consider
the effect of release on others not present in the United States. Put
another way, it maintains that one particular individual may be civilly
detained for the sake of sending a message of deterrence to other
Central American individuals who may be considering immigration.
This appears out of line with analogous Supreme Court decisions. In
discussing civil commitment more broadly, the Court has declared
such “general deterrence” justifications impermissible . . . In addition,
a general deterrence rationale seems less applicable where . . . neither
those being detained nor those being deterred are certain wrongdoers,
but rather individuals who may have legitimate claims to asylum in
this country.1165

It follows, therefore, that punitive detention designed to deter the arrival of

other refugees of the kind exemplified by India’s mass arrest of Sri Lankan
refugees,1166 Australia’s indefinite incarceration of refugee claimants,1167 or
Hungary’s automatic detention of all persons seeking asylum1168 is simply
unlawful.1169
Indeed, even where the reason advanced for detention is facially legitimate,
its substantive reasonableness requires that it be based on solid facts rather
than simple assertions.1170 As the DC District Court insisted, “[i]ncantation of

would tend to encourage further surges of mass migrations from Haiti by sea, with
attendant strains on national and homeland security resources . . . Encouraging such
unlawful mass migrations is inconsistent with immigration policy . . . While the exped-
ited removal policy may reduce the incidence of sea-going Haitian migrants being
released on bond pending removal, it hardly provides airtight assurances against future
successful migrants through legal and extra-legal maneuvers, or the encouragement of
additional maritime migrations likely to arise from such entries”: In re DJ, 2003 BIA Lexis
3 (US AG, Apr. 17, 2003). Almost as a footnote, the Attorney General observed that
because the Refugee Protocol “is not self-executing,” it “does not afford respondent any
rights beyond what he is afforded under the federal immigration laws”: ibid. Yet the
Attorney General failed to acknowledge that the government of the United States is
bound by Art. 31 of the Refugee Convention. His decision here to deem the reversal of the
Board of Immigration Appeals’ decision a “precedent binding in all future cases” there-
fore amounted to a clear refusal of the United States to abide by its international legal
obligations.
1165
RIL-R v. Johnson, 80 F. Supp. 3d 164 (US DCDC, Feb. 20, 2015), at 188–189.
1166
See text at note 856. 1167 See text at notes 870–871. 1168 See text at note 874.
1169
“Detention that is imposed in order to deter future asylum-seekers, or to dissuade those
who have commenced their claims from pursuing them, is inconsistent with inter-
national norms”: UNHCR, “Guidelines on the Applicable Criteria and Standards
Relating to the Detention of Asylum Seekers and Alternatives to Detention” (2012),
at [32].
1170
The English Court of Appeal thus expressed its concern that the argument for the UK’s
fast track detention system “does not provide the sort of substantial fact-based justifica-
tion that the Supreme Court . . . indicated would be needed to justify an interference with
a fundamental right”: The Queen (Detention Action) v. Secretary of State for the Home

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the magic words ‘national security’ without further substantiation is simply not
enough to justify significant deprivations of liberty.”1171 Nor may public order
simply be invoked on a general basis in order to ensure that refugee claimants
do not go underground, as is the practice in Lithuania1172 and until recently in
Austria.1173 Rather, as the Court of Justice of the European Union has made
clear,

placing or keeping an applicant in detention . . . is, in view of the require-

ment of necessity, justified on the ground of a threat to national security or
public order only if the applicant’s individual conduct represents a genu-
ine, present and sufficiently serious threat, affecting a fundamental interest
of society or the internal or external security of the Member State
concerned.1174

Second, even if a response to a legitimate and substantiated concern, deten-

tion of persons claiming refugee status can only be said to be demonstrably
necessary where it is based on examination of the particular individual’s case.
While the Human Rights Committee has adopted the view that an extremely
limited form of refugee detention – “in order to document their entry, record
their claims and determine their identity if it is in doubt”1175 – is not arbitrary
even if applied on a general basis, it has insisted that this is so only if that
detention is “for a brief initial period.”1176 Any detention beyond this very

Department, [2014] EWCA Civ 1634 (Eng. CA, Dec. 16, 2014), at [94]. See also Hamadie
Al-Gertani v. Bosnia and Herzegovina, HRC Comm. No. 1955/2010, UN Doc. CCPR/C/
109/D/1955/2010, decided Nov. 1, 2013, at [10.4] (requiring evidence to substantiate the
government’s assertion that the individual’s detention was required in order to avert a
threat to public order or the peace and security of the state).
1171
RIL-R v. Johnson, 80 F. Supp. 3d 164 (US DCDC, Feb. 20, 2015), at 190.
1172
See text at notes 883–884. 1173 See text at note 885.
1174
JN v. Staatssecretaris voor Veiligheid en Justitie, Dec. No. C-601/15 PPU (CJEU, Feb. 15,
2016), at [67]. The Court sensibly insisted that detention on grounds of national security
or public order may be undertaken “only insofar as [it] is strictly necessary” and that state
parties must therefore comply “with a series of conditions whose aim is to create a strictly
circumscribed framework in which such a measure may be used”: ibid. at [56]–[57]. See
generally European Council on Refugees and Exiles, “The Detention of Asylum Seekers in
Europe: Constructed on Shaky Ground?,” June 2017.
1175
UN Human Rights Committee, “General Comment No. 35: Article 9 (Liberty and
Security of Person)” (2014), UN Doc. CCPR/C/GC/35, Dec. 16, 2014, at [18]. See also
“The Michigan Guidelines on Refugee Freedom of Movement,” (2017) 39 Michigan
Journal of International Law 1, at [15]; and UNHCR, “Guidelines on the Applicable
Criteria and Standards Relating to the Detention of Asylum Seekers and Alternatives to
Detention” (2012), at [24].
1176
UN Human Rights Committee, “General Comment No. 35: Article 9 (Liberty and
Security of Person)” (2014), UN Doc. CCPR/C/GC/35, Dec. 16, 2014, at [18]. For an
argument that even this may be conceding too much see C. Costello, “Immigration
Detention: The Grounds Beneath Our Feet,” (2015) 68(1) Current Legal Problems 143
(Costello “Immigration Detention”), at 172–176.

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 4.2 f r ee d o m f r o m d e t en t i o n an d p e n a l i z a t i o n 529

short period would be non-arbitrary only if predicated on a particularized

assessment of the need for detention.1177 As observed by the High Court of
Kenya, a “real connection must be established between the affected persons
and the danger”1178 said to require detention. It follows from this rule that any
automatic detention1179 – for example, the routine detention of unauthorized
entrants including refugees as authorized by Hungary,1180 Japan,1181 and
Libya1182 – cannot meet the Covenant’s duty to avoid arbitrary detention.
Indeed, the same conclusion follows from the stipulation in Art. 31(2) of the
Refugee Convention that the exercise of the right of provisional detention must
be demonstrably “necessary.”1183 In the original draft submitted by the
Secretary-General, a state was authorized to apply such measures “as it may
deem necessary [emphasis added].”1184 The final language, which authorizes
only restrictions on freedom movement “which are necessary [emphasis
added]” was adopted to embrace the spirit of a joint Belgian–American
proposal to allow states provisionally to take only “necessary police measures
regarding their accommodation, residence and movement in their terri-
tory.”1185 The importance of a broad but purposive understanding of the

1177
Indeed, UNHCR has sensibly insisted that “[t]he inability to produce documentation
should not automatically be interpreted as an unwillingness to cooperate, or lead to an
adverse security assessment. Asylum-seekers who arrive without documentation because
they are unable to obtain any in their country of origin should not be detained solely for
that reason. Rather, what needs to be assessed is whether the asylum-seeker has a
plausible explanation for the absence or destruction of documentation or the possession
of false documentation, whether he or she had an intention to mislead the authorities, or
whether he or she refuses to cooperate with the identity verification process”: UNHCR,
“Guidelines on Applicable Criteria and Standards relating to the Detention of Asylum
Seekers” (2012), at [25].
1178
Kituo Cha Sheria v. Attorney General, Petitions Nos. 19 and 115 of 2013 (Ken. HC, July
26, 2013), at [87].
1179
Nor is this characterization inapposite simply because an individual could opt to with-
draw her protection claim. As observed by McHugh J., “a regime which authorizes the
mandatory detention of unlawful non-citizens may be arbitrary notwithstanding that the
regime may allow for the detainee to request removal at any time”: Re Woolley; Ex parte
Applicant M276/2003, [2004] HCA 49, (Aus. HC, Oct. 7, 2004), at [114].
1180
See text at note 863. 1181 See text at notes 861–862.
1182
See text at notes 830–831.
1183
“The starting point is that New Zealand’s obligations under the Refugee Convention . . .
include a duty to ensure that detention is not automatic for arriving persons claiming the
status of refugees [citing the court’s earlier decision in Attorney General v. E, [2000] 3
NZLR 257 (NZ CA, July 11, 2000, appeal to PC refused at [2000] 3 NZLR 637)]”: Attorney
General v. Refugee Council of New Zealand Inc., [2003] 2 NZLR 577 (NZ CA, Apr. 16,
2003), at [97].
1184
Secretary-General, “Memorandum,” at 45. The French proposal used the same expres-
sion: France, “Draft Convention,” at 9.
1185
UN Doc. E/AC.32/L.25, Feb. 2, 1950, at 2. The American representative observed that
“although the substance of the . . . article was satisfactory, its form left much to be
desired”: Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.22, Feb.

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 530 4 ri g ht s o f re f u g e e s p hy s i c a l l y p r e s e n t

right of provisional detention was emphasized by the President of the

Conference of Plenipotentiaries, who asserted that “by inserting the words
‘other than those which are necessary’ . . . the Ad Hoc Committee had intended
to cover considerations of security, special circumstances, such as a great and
sudden influx of refugees, or any other reasons which might necessitate
restrictions of their movement.”1186 Not only must detention be initially
justified in order to be non-arbitrary, but it must moreover continue to be
justified.
Because it cannot be presumed that a once-legitimate reason remains so
indefinitely,1187 any detention that is ongoing without periodic review to
ensure that the initial justification remains valid is unlawful.1188 Both
Indonesia’s practice of subjecting refugees to up to ten years’ imprisonment
with no access to judicial review1189 and the US practice of long-term confine-
ment of refugees without regular review1190 infringe this rule.1191
More generally, the duty to take account of the individual’s particular
circumstances means that states face a heavy burden if they wish to detain
vulnerable persons, including unaccompanied older persons, women, mem-
bers of sexual minorities, torture, trauma, or trafficking victims, and persons
with a mental or physical disability.1192 In particular, it is clear that children

2, 1950, at 25. This led the Danish delegate, Mr. Larsen, to propose the language upon
which the present formulation of Art. 31(2) is based: ibid.
1186
Statement of the President, Mr. Larsen of Denmark, UN Doc. A/CONF.2/SR.14, July 10,
1951, at 16. See also UNHCR Executive Committee Conclusion No. 44, “Detention of
Refugees and Asylum-Seekers” (1986), at [(b)].
1187
As noted by the High Court of Australia, “[t]he duration of any form of detention, and
thus its lawfulness, must be capable of being determined at any time and from time to
time”: Plaintiff S4/2014 v. Minister for Immigration and Border Protection, [2014] HCA
34 (Aus. HC, Sept. 11, 2014), at [29]; see also NBMZ v. Minister for Immigration and
Border Protection, [2014] FCAFC 38 (Aus. FFC, Apr. 9, 2014), at [114], [177]–[178],
making clear that indefinite detention is unlawful. Thus, “[a]ny further detention must be
continuously justified on an individuated basis”: “The Michigan Guidelines on Refugee
Freedom of Movement,” (2017) 39 Michigan Journal of International Law 1, at [16].
1188
“Aside from judicially imposed sentences for a fixed period of time, the decision to keep a
person in any form of detention is arbitrary if it is not subject to periodic re-evaluation of
the justification for continuing the detention”: UN Human Rights Committee, “General
Comment No. 35: Article 9 (Liberty and Security of Person)” (2014), UN Doc. CCPR/C/
GC/35, Dec. 16, 2014, at [12].
1189
See text at note 866. 1190 See text at notes 876–880.
1191
“Indefinite detention of individuals in the course of migration proceedings cannot be
justified and is arbitrary”: UN Working Group on Arbitrary Detention, “Revised
Deliberation No. 5 on Deprivation of Liberty of Migrants,” Advance Edited Version,
Feb. 7, 2018, at [26]. Sadly, therefore, as a matter of international law the US Supreme
Court erred in upholding the legality of this regime: Jennings v. Rodriguez, 804 F. 3d 1060
(US SC, Feb. 27, 2018).
1192
See UNHCR, “Guidelines on the Applicable Criteria and Standards Relating to the
Detention of Asylum Seekers and Alternatives to Detention” (2012), at [49]–[65].

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 4. 2 f r e ed o m f r o m d et e n t i o n a n d p en a l i za t i o n 531

may be lawfully detained only as a “measure of last resort.”1193 The

Australian,1194 Indonesian,1195 Malaysian,1196 and Thai1197 practices of detain-
ing refugee children on a fairly routine basis are therefore unlikely to meet the
requirements of Art. 31(2), or of Art. 9 of the Civil and Political Covenant. And
while the United Kingdom’s reservation to the Convention on the Rights of the
Child insulates it from responsibility under that treaty for the detention of
refugee children,1198 it remains independently accountable under the Civil and

1193
“No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest,
detention or imprisonment of a child shall be in conformity with the law and shall be used
only as a measure of last resort and for the shortest appropriate period of time”:
Convention on the Rights of the Child, 1577 UNTS 3 (UNTS 27531), adopted Nov. 20,
1989, entered into force Sept. 2, 1990 (Rights of the Child Convention), at Art. 37(b). In
line with this understanding, the Inter-American Court of Human Rights has determined
that “the deprivation of liberty of children based exclusively on migratory reasons exceeds
the requirements of necessity, because this measure is not absolutely essential in order to
ensure their appearance at the immigration proceedings or to guarantee the implemen-
tation of a deportation order”: Rights and Guarantees of Children in the Context of
Migration and/or in Need of International Protection (Advisory Opinion OC-21/14)
(IACtHR, Aug. 19, 2014), at [154]. See also UN Human Rights Committee, “General
Comment No. 35: Article 9 (Liberty and Security of Person)” (2014), UN Doc. CCPR/C/
GC/35, Dec. 16, 2014, at [18]: “Children should not be deprived of liberty, except as a
measure of last resort and for the shortest period of time, taking into account their best
interests as a primary consideration with regard to the duration and conditions of
detention, and also taking into account the extreme vulnerability and need for care of
unaccompanied minors.” In the view of UNHCR, “[a]s a general rule, unaccompanied or
separated children should not be detained. Detention cannot be justified based solely on
the fact that the child is unaccompanied or separated, or on the basis of his or her
migration or residence status”: UNHCR, “Guidelines on the Applicable Criteria and
Standards Relating to the Detention of Asylum Seekers and Alternatives to Detention”
(2012), at [54]. Indeed, UNHCR has more recently taken the more emphatic view that
“children should not be detained for immigration related purposes, irrespective of their
legal/migratory status or that of their parents, and detention is never in their best
interests”: UNHCR, “UNHCR’s position regarding the detention of refugee and migrant
children in the migration context,” Jan. 2017, at 2. This stronger position echoes a joint
general comment espousing the view that “child and family immigration detention
should be prohibited by law and its abolishment ensured in policy and practice”: UN
Committee on the Protection of the Rights of All Migrant Workers and Members of Their
Families and UN Committee on the Rights of the Child, “Joint General Comment No. 4
(2017) of the Committee on the Protection of the Rights of All Migrant Workers and
Members of Their Families and No. 23 (2017) of the Committee on the Rights of the
Child on State obligations regarding the human rights of children in the context of
international migration in countries of origin, transit, destination and return,” (2017),
UN Doc. CMW/C/GC/4-CRC/C/GC/23, Nov. 16, 2017, at [12]. But this approach has
been criticized as “poorly thought out” by a former member of the UN Human Rights
Committee: G. Neuman, “Detention as a Last Resort: The Implications of the Human
Rights Committee’s General Comment No. 35,” in M. Crock and L. Benson eds.,
Protecting the Migrant Child 381 (2018).
1194
See text at note 922. 1195 See text at note 925. 1196 See text at note 925.
1197
See text at note 925. 1198 See text at note 924.

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Political Covenant to overcome the presumption against the necessity of such

measures.1199
Third, even if detention is in pursuit of a legitimate purpose and shown to be
necessary in the applicant’s specific circumstances, the detention is non-
arbitrary only if the particular form of constraint imposed is shown to be a
proportionate response to the risk demonstrated.1200 In the words of the Court
of Justice of the European Union, there must be no “other less coercive
alternative measures”1201 that provide an adequate response to the risk
shown. The Supreme Court of Israel thus refused to approve a law authorizing
the detention of refugee claimants for up to twenty months,1202 finding that
length of time to be disproportionate to the concerns advanced by the govern-
ment.1203 More generally, the Full Federal Court of Australia interpreted the
Covenant’s obligations in the context of the detention of refugee claimants to
mean that detention must be subject to the claimant’s right “not to be detained
in circumstances which, in the individual case, are ‘unproportional’ or
unjust.”1204 This duty of minimal impairment was also clearly endorsed by
the Human Rights Committee in the context of a complaint of arbitrary
detention made by an Afghan refugee woman and her five young children:

Concerning Mrs Bakhtiyari and her children, the Committee observes that
Mrs Bakhtiyari has been detained in immigration detention for two years
and ten months, and continues to be detained, while the children
1199
“A child may be deprived of liberty only as a last resort and for the shortest appropriate
period of time . . . [T]he best interests of the child must be a primary consideration in
every decision to initiate or continue this deprivation”: UN Human Rights Committee,
“General Comment No. 35: Article 9 (Liberty and Security of Person)” (2014), UN Doc.
CCPR/C/GC/35, Dec. 16, 2014, at [62].
1200
“It is not enough for detention to promote a legitimate government objective, such as
ensuring national security, public order (ordre public), public health or morals, or the
rights and freedoms of others. Because any limitation on the right to liberty must be
demonstrably the least intrusive means available to secure a permissible objective,
detention is lawful only if lesser restrictions on liberty – such as reporting requirements
or sureties – are incapable of ensuring the permissible objective”: “The Michigan
Guidelines on Refugee Freedom of Movement,” (2017) 39 Michigan Journal of
International Law 1, at [16].
1201
JN v. Staatssecretaris voor Veiligheid en Justitie, Dec. No. C-601/15 PPU (CJEU, Feb. 15,
2016), at [61]. See also Salah Al Chodor v. Czech Republic, Dec. No. C-528/15 (CJEU, Mar.
15, 2017), at [25] (finding that detention to obviate the risk of absconding was lawful
“only in so far as the detention is proportional and where other less coercive alternative
measures cannot be applied effectively”).
1202
See text at note 864.
1203
Desete v. Minister of Interior, Dec. No. HCJ 8665/14 (Isr. SC, Aug. 11, 2015). Regrettably,
and without clear explanation, the Court determined that detention for up to twelve
months would not be disproportionate. See generally Ziegler, “No Asylum for
‘Infiltrators’.”
1204
Minister for Immigration and Multicultural and Indigenous Affairs v. Al Masri, (2003) 197
ALR 241 (Aus. FFC, Apr. 15, 2003).

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 4.2 f r e e d o m f r o m d e t e n t i o n an d p e na l i z a t i o n 533

remained in immigration detention for two years and eight months until
their release on interim orders of the Family Court. Whatever justification
there may have been for an initial detention for the purposes of ascertain-
ing identity and other issues, the State party has not, in the Committee’s
view, demonstrated that their detention was justified for such an extended
period.
Taking into account in particular the composition of the Bakhtiyari
family, the State party has not demonstrated that other, less intrusive,
measures could not have achieved the same end of compliance with the
State party’s immigration policies by, for example, imposition of reporting
obligations, sureties or other conditions which would take into account the
family’s particular circumstances. As a result, the continuation of immi-
gration detention for Mrs Bakhtiyari and her children for the length of
time described above, without appropriate justification, was arbitrary and
contrary to article 9, paragraph 1, of the Covenant.1205

In a helpful judgment interpreting Art. 31 of the Refugee Convention,

Justice Glazebrook (then of the New Zealand Court of Appeal) suggested an
approach that takes account of both “the extent of any restrictions imposed and
the reasons for such restrictions”:1206

It is implicit . . . that restrictions on freedom of movement that are less

restrictive than detention should be able to be imposed more freely . . .
[T]he necessity standard is variable depending on the nature of the
restriction on freedom of movement to be applied . . .
. . . [T]he greater restriction there is to be on a claimant’s freedom of
movement, the more scrutiny should be given to the reasons for
1205
Bakhtiyari v. Australia, HRC Comm. No. 1069/2002, UN Doc. CCPR/C/79/D/1069/2002,
decided Oct. 29, 2003, at [9.3]. See also C v. Australia, HRC Comm. No. 900/1999, UN Doc.
CCPR/C/76/D/900/1999, decided Oct. 28, 2002, at [8.2]; MGO v. Australia, HRC Comm.
No. 1875/2009, UN Doc. CCPR/C/113/D/1875/2009, decided Mar. 26, 2015, at [11.6];
MMM v. Australia, HRC Comm. No. 2136/2012, UN Doc. CCPR/C/108/D/2136/2012,
decided July 25, 2013, at [10.4]; FKAG v. Australia, HRC Comm. No. 2094/2011, UN Doc.
CCPR/C/108/D/2094/2011, decided July 26, 2013, at [9.4]; and FJ v. Australia, HRC
Comm. No. 2233/2013, UN Doc. CCPR/C/116/D/2233/2013, decided Mar. 22, 2016, at
[10.3]–[10.4]. Indeed, the international illegality of Australia’s policy of refugee detention
has been noted by the High Court of Australia, even as it found itself jurisdictionally
constrained to apply that law: Re Woolley; ex parte Applicants M276/2003, [2004] HCA 49
(Aus. HC, Oct. 7, 2004), in particular the reasons of Kirby J. at [201] and of McHugh J. at
[114]. In an earlier decision, Justice Kirby observed, “[m]andatory detention of unlawful
non-citizens who are children is the will of the Parliament of Australia . . . In the face of
such clear [domestic statutory] provisions, the requirements of international law . . . cannot
be given effect by a court such as this. This Court can note and call attention to the issue.
However, it cannot invoke international law to override clear and valid provisions of
Australian national law”: Minister of Immigration and Multicultural Affairs v. B and B,
[2004] HCA 20 (Aus. HC, Apr. 29, 2004), at [171].
1206
Attorney General v. Refugee Council of New Zealand Inc., [2003] 2 NZLR 577 (NZ CA,
Apr. 16, 2003), at [257].

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 534 4 r i gh t s of ref ug ees physic ally present

detention . . . [A] major restriction on the freedom of movement through

detention . . . appear[s] to require an element of “fault” on the part of the
claimant.1207

This framework effectively compels states to give primary consideration to

constraints on freedom of movement short of detention, since such less intru-
sive measures will be much more readily deemed justified.1208 While there can
be no question of even routine resort to such measures as residence restrictions
or reporting requirements,1209 the view that detention should ordinarily be
contemplated as a last resort1210 and normally only where there is some
evidence of mala fides or risk associated with the liberty of the refugee claimant
is a sound point of departure.1211 It drives governments meaningfully to honor
the presumptive right of refugees to enjoy freedom of movement, even as it

1207
Ibid. at [265], [275].
1208
In a decision successfully appealed to the Court of Appeal, the New Zealand High Court
determined that “[d]etention is warranted only where ‘necessary.’ I would have thought
that the possibility of lesser forms of control would need to be addressed before the more
drastic steps of full detention could be justified . . . Open centers may or may not be
available in New Zealand at present. However, it is certainly commonplace in the
analogous system of criminal prosecutions that persons on remand are granted bail
subject to stringent conditions including daily reporting requirements, residence at a
nominated address, geographical limitations upon movement, surrender of passports,
curfews, and other restrictions of that nature”: E v. Attorney General, [2000] NZAR 354
(NZ HC, Nov. 29, 1999), appeal allowed in Attorney General v. E, [2000] 3 NZLR 257 (NZ
CA, July 11, 2000, appeal to PC refused at [2000] 3 NZLR 637). See text at note 1232 ff. for
a more detailed analysis of alternatives to detention.
1209
“It is significant that Article 31(2) applies to restrictions on freedom of movement
generally, and not just to detention”: Attorney General v. Refugee Council of New
Zealand Inc., [2003] 2 NZLR 577 (NZ CA, Apr. 16, 2003), at [259].
1210
“[T]here should be a strong, although rebuttable, presumption in favor of granting
temporary permits to refugee claimants pending the determination of their refugee
status”: E v. Attorney General, [2000] NZAR 354 (NZ HC, Nov. 29, 1999), appeal allowed
in Attorney General v. E, [2000] 3 NZLR 257 (NZ CA, July 11, 2000, appeal to PC refused
at [2000] 3 NZLR 637).
1211
See e.g. Jalloh v. Netherlands, HRC Comm. No. 794/1998, UN Doc. CCPR/C/74/D/794/
1998, decided Mar. 26, 2002, at [8.2]: “[T]he author had his detention reviewed by the
courts on two occasions, once twelve days after the beginning of his detention, and again
two months later. On both occasions, the Court found that the author’s continued
detention was lawful, because he had evaded expulsion before, because there were doubts
as to his identity, and because there were reasonable prospects for expulsion, as an
identity investigation was still ongoing. The question remains therefore as to whether
his detention was arbitrary. Recalling its previous jurisprudence the Committee notes
that ‘arbitrariness’ must be interpreted more broadly than ‘against the law’ to include
elements of unreasonableness. Considering the author’s flight from the open facility at
which he was accommodated from the time of his arrival for around 11 months, the
Committee considers that it was not unreasonable to have detained the author for a
limited time until the administrative procedure relating to his case was completed
[emphasis added].”

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affords them a flexible framework within which to respond to legitimate

concerns.1212
An issue of real contemporary concern is whether provisional detention can
be adjudged an appropriate response in order to ensure the efficient assessment
of claims to refugee status. While not included in UNHCR’s “list” of approved
reasons for provisional detention,1213 courts have taken the view that short-
term detention dictated by important administrative reasons may be accept-
able.1214 For example, the House of Lords gave consideration in Saadi1215 to
the legality of the detention of refugee claimants adjudged to have “straight-
forward asylum claims” for seven to ten days, allowing their claims quickly to
be adjudicated. Their Lordships took real account of both the practical need to
deal expeditiously with a mounting volume of claims,1216 and of the quality of
the detention (which included, for example, access to legal advice)1217 to arrive
at the decision that detention for a few days could be ruled necessary:

There is obviously force in the argument . . . that if there is no suggestion

that [the claimants] might run away, then it cannot be strictly necessary to
detain them as opposed to requiring them to comply with the fixed regime
enabling detailed examinations to take place. This, however, ignores the
reality – large numbers of applications have to be considered intensively in
a short period. If people failed to arrive on time or at all the Programme
would be disrupted and delays caused not only to the individual case, but

1212
“The word ‘necessary’ limits both the extent of any restrictions imposed and the reasons
for such restrictions”: Attorney General v. Refugee Council of New Zealand Inc., [2003] 2
NZLR 577 (NZ CA, Apr. 16, 2003), at [259].
1213
UNHCR, “Guidelines on the Applicable Criteria and Standards Relating to the Detention
of Asylum Seekers and Alternatives to Detention” (2012), at [21]–[30]. Indeed, the
agency suggests that “[a]ny detention in connection with accelerated procedures should
only be applied to cases that are determined to be ‘manifestly unfounded’ or ‘clearly
abusive’”: ibid. at [23].
1214
The New Zealand High Court, for example, determined that detention might be neces-
sary “to allow the [government] to be able to perform their functions”: Refugee Council of
New Zealand et al. and “D” v. Attorney General, [2002] NZAR 717 (NZ HC, May 31,
2002). But see Costello, “Immigration Detention,” at 164.
1215
R (Saadi) v. Secretary of State for the Home Department, [2002] UKHL 41 (UK HL, Oct.
31, 2002).
1216
“The number of persons arriving in the United Kingdom and seeking asylum has grown
considerably in recent years. Thus your Lordships were told that from July to September
1999 the average number of applications was 7,000 a month, a 60% increase on the
previous year . . . This obviously placed a considerable strain on the immigration ser-
vices”: ibid. at [10].
1217
“There is obviously a deprivation of liberty in detaining people at Oakington. They cannot
leave the centre, they must conform to the rules as to meal times and to being in their rooms
at night. On the other hand, it is not suggested that the physical conditions – the state of the
rooms, sanitation, meals – are in themselves open to criticism. Moreover, there are
provisions not only for legal advice, but for medical advice, for recreation and for religious
practice”: ibid. at [17].

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 536 4 r i g ht s of re f u g e e s p hy s i c a l l y p r e s e n t

to dealing with the whole problem. If conditions in the centre were less
acceptable than they are taken to be, there might be more room for doubt,
but it seems to me that the need for speed justifies detention for a short
period in acceptable physical conditions as being reasonably necessary.1218

Thus, very much in line with the approach of New Zealand’s Justice
Glazebrook, the House of Lords adopted what amounts to a proportionality
analysis in which quite short-term detention in conditions of a high standard
might be deemed a fair response to the need quickly to process a large number
of asylum claims. The clear implication of the judgment, however, is that the
restriction on freedom of movement was only deemed valid because its dur-
ation was both short and finite, and the conditions of detention clearly rights-
regarding – in other words, the intrusion on the rights of the persons seeking
protection had been kept to a proportionate minimum.1219
This three-part understanding of lawful detention under Art. 9 of the
Covenant – requiring that detention be in pursuit of a legitimate goal, indi-
vidually assessed on a continuing basis, and proportionate – aligns neatly with
traditional understandings of restrictions on movement that are “necessary”
1218
Ibid. at [24]. In reviewing the facts of this case, a Grand Chamber of the European Court
of Human Rights found no violation of regional human rights norms, noting that
detention is not arbitrary if (1) carried out in good faith; (2) closely connected to the
purpose of preventing unauthorised entry to the country; (3) the place and conditions of
detention were appropriate bearing in mind that the detainee was an asylum-seeker
rather than a suspected criminal; (4) the length of the detention did not exceed that
reasonably required for the purpose pursued: Saadi v. United Kingdom, Dec. No. 13229/
03 (ECtHR, Jan. 29, 2008).
1219
In subsequent litigation, the Court of Appeal approved of a finding that as initially
implemented the system had “created an unacceptable risk of unfair determinations for
those vulnerable or potentially vulnerable applicants . . . who did not have access to
lawyers sufficiently soon after induction to enable instructions to be taken and advice to
be given before the substantive interview and was to that extent being operated unlaw-
fully”: The Queen (Detention Action) v. Secretary of State for the Home Department,
[2014] EWCA Civ 1270 (Eng. CA, Sept. 10, 2014), at [5]. The Court of Appeal later also
rejected the government’s argument that detention at the fast track appeal stage was
administratively necessary. “The assumption is made on behalf of the Secretary of State
that, because there is a need to process approximately 2,000 appeals per annum in the fast
track at eight fast track courts at three hearing centres, Saadi’s reasoning applies to the
appeals stage. Why is this so although the reasoning in Saadi was tied to the need for on-
the-spot availability for interviews and the much shorter period? . . . There is no evidence
from the Tribunal that it would be unable to deal with appellants as quickly without them
being in detention and no evidence from the Home Office that it is not possible to place
those released near centres with fast-track appeal tribunals”: The Queen (Detention
Action) v. Secretary of State for the Home Department, [2014] EWCA Civ 1634 (Eng.
CA, Dec. 16, 2014), at [85], [87]. Both the original 2005 fast track rules and a revised 2014
version thereof were determined to be ultra vires, it having been found that there was no
material difference between the empowering statutory provisions or the rules themselves:
The Queen (TN (Vietnam) and US (Pakistan)) v. Secretary of State for the Home
Department, [2017] EWHC 59 (Eng. HC, Jan. 20, 2017).

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 4.2 f r e edo m f r o m det en t i o n and penalization 537

under Art. 31(2) of the Refugee Convention.1220 But the Covenant adds net
value by requiring not only that detention be non-arbitrary, but also ordered
“in accordance with such procedure as [is] established by law.”1221 As such,
even justifiable and proportionate detention may not simply be ordered at the
discretion of officials, but must rather “be prescribed by law and . . . defined
with sufficient precision to avoid overly broad or arbitrary interpretation or
application.”1222 This point was recognized by the Greek Council of State,
which struck down geographical restrictions imposed on refugees arriving at
six Greek islands because the relevant order failed to provide legal justification
for the constraints on refugee freedom of movement.1223 More generally, the
European Court of Justice has determined that detention of refugee claimants
must be based on legislative standards since “only a provision of general
application could meet the requirements of clarity, predictability, accessibility
and, in particular, protection against arbitrariness.”1224 Perhaps most import-
ant, Art. 9(4) of the Covenant “enshrines the principle of habeas corpus,”1225
meaning that “anyone who is deprived of liberty [is entitled] to take proceed-
ings before a court, in order that the court may decide without delay the
lawfulness of detention and order release if the detention is not lawful.”1226

4.2.4.2 Other Restrictions on Movement

The main shortcoming of Art. 9 of the Covenant is that it requires protection
only of “liberty and security of person,”1227 including specifically freedom from
“arbitrary arrest or detention.”1228 Liberty of person “concerns freedom from
confinement of the body, not a general freedom of action.”1229 As the Human
Rights Committee has affirmed, “[d]eprivation of liberty involves more severe
restriction of motion within a narrower space than mere interference with

1220
See text at note 1151 ff. 1221 Civil and Political Covenant, at Art. 9(1).
1222
UN Human Rights Committee, “General Comment No. 35: Article 9 (Liberty and
Security of Person)” (2014), UN Doc. CCPR/C/GC/35, Dec. 16, 2014, at [22]. See e.g.
Clifford McLawrence v. Jamaica, HRC Comm. No. 702/1996, UN Doc. CCPR/C/60/D/
702/1996, decided Apr. 26, 1996, at [5.5].
1223
Dec. No. 805/2018 (Gr. CS, Apr. 17, 2018) (based on unofficial translation provided by
the ECRE Asylum Information Database).
1224
Salah Al Chodor v. Czech Republic, Dec. No. C-528/15 (CJEU, Mar. 15, 2017), at [43].
1225
UN Human Rights Committee, “General Comment No. 35: Article 9 (Liberty and
Security of Person)” (2014), UN Doc. CCPR/C/GC/35, Dec. 16, 2014, at [39].
1226
Ibid. This right to seek habeas corpus is said explicitly to apply to “immigration deten-
tion”: ibid. at [40]. The applicability of Art. 9(4) to the detention of refugees and migrants
was affirmed in e.g. FJ v. Australia, HRC Comm. No. 2233/2013, UN Doc. CCPR/C/116/
D/2233/2013, decided Mar. 22, 2016, at [10.5]; and FKAG v. Australia, HRC Comm. No.
2094/2011, UN Doc. CCPR/C/108/D/2094/2011, decided July 26, 2013, at [9.6].
1227
Civil and Political Covenant, at Art. 9(1). 1228 Ibid.
1229
UN Human Rights Committee, “General Comment No. 35: Article 9 (Liberty and
Security of Person)” (2014), UN Doc. CCPR/C/GC/35, Dec. 16, 2014, at [2].

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 538 4 r i gh t s of ref ug ees physic ally present

liberty of movement”1230 – the latter, more ample, freedom of movement

accruing under the Covenant only with lawful presence.1231
In contrast, even unlawfully present refugees entitled to the benefit of Art.
31(2) must be exempted not only from unnecessary detention, but also from
any “restrictions other than those which are necessary”1232 on their “move-
ments.”1233 So long as a refugee voluntarily reports to asylum state authorities
within a reasonable time after crossing the frontier and satisfies them that her
unlawful entry or presence was necessitated by the urgency of her search for
protection,1234 Art. 31(2) provides that the onus is on the receiving state to
demonstrate that any restriction on her movement is “necessary.”1235 This
means that many of the same criteria informing the meaning of “necessity”
discussed above1236 – pursuit of a legitimate goal, individuated assessment on a
continuing basis, and proportionality – apply to assessment of the legality of
any restriction on movement, not just to full-blown detention.1237
Given this framing of Art. 31(2) of the Refugee Convention, even alterna-
tives to detention that might suffice to avoid liability under Art. 9 of the
Covenant may nonetheless be impermissible. As UNHCR has helpfully
insisted, “alternatives to detention should not be used as alternative forms of
detention; nor should alternatives to detention become alternatives to
release.”1238 While some alternatives are likely to be found to be minimally

1230
Ibid. at [5]. 1231 Civil and Political Covenant, at Art. 12(1).
1232
Refugee Convention, at Art. 31(2). 1233 Ibid. 1234 See Chapter 4.2.1.
1235
Refugee Convention, at Art. 31(2). “Nor may a state routinely subject all refugees to
restrictions on liberty that are less intrusive than detention. Under Convention Art. 31(2),
a refugee . . . is presumptively exempt from any restriction on freedom of movement
unless that restriction is shown to be necessary – that is, that it is the least intrusive means
available to secure a permissible objective. The requirements of Art. 31(2) must be
interpreted in a broad, non-mechanistic, and purposive way”: “The Michigan
Guidelines on Refugee Freedom of Movement,” (2017) 39 Michigan Journal of
International Law 1, at [17].
1236
See text at note 1183.
1237
An interesting argument advanced before the Irish High Court was that the breadth of
Art. 31(2) means that it regulates interstate restriction of refugee freedom of movement of
the kind inherent in the allocation system of the Dublin Regulation. While the Court
rejected the argument on the ground that “the element of choice afforded by the Geneva
Convention as asserted by the applicant is unreasonably overstated” (MAH v.
International Protection Appeals Tribunal, [2017] IEHC 462 (Ir. HC, July 17, 2017), at
[10]), the more compelling answer would be that the context of Art. 31(2) includes the
more general Art. 31(1) which, as noted above, allows expulsion to a non-persecutory
country: see Chapter 4.2.2.
1238
UNHCR, “Guidelines on the Applicable Criteria and Standards Relating to the Detention
of Asylum Seekers and Alternatives to Detention” (2012), at [38]. Indeed, “automatic
recourse to alternatives to detention as a general means of migration control becomes all
the more problematic when used as a gateway to detention . . . [M]isinterpreting alterna-
tives to detention as systematic measures of migration control risks turning the legal
constraints to detention of asylum seekers on their head. Rather than a last-resort

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 4.2 f r e e d o m f r o m d e t en t i o n an d p e n a l i z a t i o n 539

invasive and hence proportionate – for example, a community supervision

arrangement of the kind commonly used in Canada,1239 the use of an electronic
monitoring device by Denmark,1240 or telephone reporting as sometimes relied
upon in the United States1241 – other alternatives to detention are likely to face a
tougher challenge. Practices such as the United Kingdom’s reliance on guaran-
tors or sureties1242 or the duty in Sweden to deposit or surrender documenta-
tion1243 constrain freedom of movement in a more significant way, and will thus
require more compelling evidence of necessity on the facts of the particular case.
Art. 31(2) is most commonly contravened when persons claiming refugee
status are required to live on an ongoing basis in a particular location – for
example, the Greek system of assigning refugees presenting themselves to author-
ities to a reception center or hostel,1244 the practice of directed residence as occurs
in France,1245 or mandatory residence at open or semi-open reception or asylum
centers as mandated in Germany.1246 Such highly invasive regimes are unlikely to
be deemed proportionate measures satisfying the necessity requirement of Art.
31(2). The clearest cases in which Art. 31(2) is violated, however, involve strict and
broad-ranging geographical restrictions of the kind imposed by Indonesia,1247
Kenya,1248 and Tajikistan1249 – effectively denying refugees the ability to live in
urban areas and to travel. Similarly, Germany’s assignment of refugee claimants to
live in a particular Land1250 is likely to fall afoul of this provision unless the
government is able clearly to demonstrate that responsibility-sharing among that
country’s regions cannot be achieved by a less intrusive means.
Practices such as those of Bulgaria1251 and Ireland1252 – which allow refugee
claimants to live outside the reception center only if they are prepared to give
up state welfare benefits – are, however, less clearly in breach of Art. 31(2). In
pith and substance, such policies seem less a constraint on freedom of move-
ment giving rise to a concern under Art. 31(2) than a restriction on access to
public benefits. This restriction is in most cases lawful since, at least until and
unless an issue of denial of access to the necessities of life arises,1253 states are

measure permissible on strictly circumscribed grounds, detention seems to be increas-

ingly legitimised as a punitive measure per se, justified by the individual’s failure to
comply with an alternative”: European Council on Refugees and Exiles, “The detention of
asylum seekers in Europe: Constructed on shaky ground,” June 2017, at 11.
1239
See text at note 889. 1240 See text at note 896. 1241 See text at note 897.
1242
See text at note 888. “Alternatives to detention should be realistic and must not depend
upon the ability of the individual to pay for these”: UN Working Group on Arbitrary
Detention, “Revised Deliberation No. 5 on Deprivation of Liberty of Migrants,” Advance
Edited Version, Feb. 7, 2018, at [17].
1243
See text at note 895. 1244 See text at notes 906–907. 1245 See text at note 893.
1246
See text at note 890. 1247 See text at note 860. 1248 See text at notes 858–859.
1249
See text at note 857. 1250 See text at note 890. 1251 See text at note 891.
1252
See text at note 892.
1253
States are obliged under international human rights law to ensure the necessities of life to
persons under their jurisdiction: see Chapter 4.4.

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 540 4 ri g h t s of r e f u g e es ph y s i c a l l y p r e s e nt

only under a duty to grant refugees access to public relief systems once the
refugee establishes an ongoing presence in the asylum country (whether or not
there has been a formal declaration of refugee status, grant of the right of
permanent residence, or establishment of domicile there).1254 As such, a
decision to condition earlier access to welfare benefits on residence in a
reception center is effectively a constraint on access to a privilege, which a
refugee may choose to accept or not. The issue of whether the policy amounts
to a necessary constraint on freedom of internal movement therefore does not
arise.1255
The duty to avoid other than truly necessary constraints on the freedom of
movement of refugees who meet the good faith criteria of Art. 31 was insisted
upon by the drafters of the Refugee Convention. For example, the representa-
tive of the International Refugee Organization observed that the reference to
“necessary” measures “implied that the refugee should not be subjected to
irksome restrictions, that he should be permitted to move outside the reception
camp to the greatest extent possible, and that he should lead as normal a life as
possible.”1256 The logic of this special exemption from even less invasive
constraints on movement stems from the drafters’ determination to provide
an incentive for refugees to come forward and submit their claims to author-
ities:1257 having shown good faith by doing so, this subset of unlawfully
arriving refugees has established their reliability, and ought not therefore to
have their movements constrained in any fashion that is not demonstrably
necessary – a practice generally followed by Hong Kong, for example.1258

4.2.4.3
Mandatory Termination of Refugee Detention and Other
Restrictions on Movement
In addition to its value as a means of broadening the reach of protection
beyond simply “detention” to include all constraints on movement, Art.
31(2) of the Refugee Convention also sets an unambiguous duty to terminate
even demonstrably necessary refugee-specific detention or other constraints
on movement, namely that “such restrictions shall only be applied until their

1254
See Chapter 6.3.
1255
However, once a refugee is in an asylum country on an ongoing basis, including once
admitted to a temporary protection regime in the asylum state, there is a duty to
assimilate him or her to nationals for the purpose of access to public relief: see Chapter
3.1.4. If in such circumstances a state party persists in a policy of denying welfare benefits
to refugees who refuse to reside in a reception center, its actions more clearly amount to a
denial of freedom of internal movement (since the choice being offered amounts to losing
one right, or losing another). The state would then be required to justify its policy by
reference to Art. 26 of the Refugee Convention and, more generally, to meet the require-
ments of Art. 12 of the Civil and Political Covenant: see Chapter 5.2.
1256
Statement of Mr. Weis of the IRO, UN Doc. E/AC.32/SR.22, Feb. 2, 1950, at 24–25.
1257
See Chapter 4.2.1 at note 980. 1258 See text at note 894.

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 4.2 f r e e do m f r o m det en t i o n and penalization 541

status in the country is regularized or they obtain admission into another

country.”1259
In the case of refugees not being considered for a more durable status in the
asylum country, but who have instead applied to travel to some other state, the
drafters took the view that Art. 31(2) authorizes detention up to the time of
departure for that other state. At the urging of the Danish representative, the
Ad Hoc Committee amended the applicable part of Art. 31(2) to allow deten-
tion to continue until refugees “obtain admission into another country.” It was
felt that the phrasing in an earlier draft, “until such time as it is possible to make
a decision regarding their legal admission to . . . another country,”1260 could
have been misinterpreted to require release once formal permission to travel
onward had been received. The concern was that release pending removal to
the other state might have allowed refugees the opportunity to abscond.1261 On
the basis of Art. 31 standing alone, then, the initial decision to detain
Vietnamese refugees in Hong Kong pending their relocation to other states
under the Comprehensive Plan of Action1262 was arguably justified by Art.
31(2).1263 Yet because refugees awaiting departure for an alternate asylum state
are “lawfully within” the asylum country and thus entitled also to the benefit of
Art. 12 of the Civil and Political Covenant1264 – guaranteeing them mobility
rights subject only to constraints necessary to protect an interest enumerated
in Art. 12(3)1265 – the state in which they are waiting has the onus to show that
interim detention (or any other constraint on free movement) is in fact
“necessary” in line with the considerations outlined above.1266 Whatever
flexibility the drafters of Art. 31(2) of the Refugee Convention sought to afford
1259
Refugee Convention, at Art. 31(2). 1260 UN Doc. E/AC.32/L.26, Feb. 2, 1950, at 2.
1261
“He wondered whether . . . a country would be obliged to release the refugees as soon as
they had obtained entry visas to another country. Some refugees might possibly use such
an opportunity to remain in the country illegally”: Statement of Mr. Larsen of Denmark,
UN Doc. E/AC.32/SR.24, Feb. 3, 1950, at 6.
1262
See text at note 910.
1263
But when it became clear that Hong Kong was using detention not simply as a practical
means to implement the overseas relocation of refugees (see note 910), but rather as an
explicit mechanism of deterrence, the legality of detention came to an end. This is because
the right to detain refugees under Art. 31(2) must, as analyzed above, pursue a legitimate
end (which deterrence is not). Rather, in the context of refugees opting to seek protection
elsewhere the only restrictions on freedom of movement that are plausibly necessary are
those related to effecting the goal of external relocation. See text at note 1159.
1264
Art. 12 rights inhere to “[e]veryone lawfully within the territory of a State”: Civil and
Political Covenant, Art. 12(1). The Human Rights Committee has, for example, deter-
mined that even a rejected asylum applicant ordered deported but not removed on
humanitarian grounds was lawfully present: Celepli v. Sweden, HRC Comm. No. 456/
1991, UN Doc. CCPR/C/51/D/456/1991, decided Mar. 19, 1993. See generally
Chapter 3.1.3.
1265
These include “national security, public order (ordre public), public health or morals or
the rights and freedoms of others”: Civil and Political Covenant, at Art. 12(3).
1266
See text at note 1220.

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 542 4 ri g ht s o f re f u g e e s p hy s i c a l l y p r e s e n t

states in this regard has, with the entry into force of the Covenant, now been
superseded.1267
The more common question is when the power to constrain movement via
detention or otherwise under Art. 31(2) ceases in relation to refugees who wish
to remain in the asylum country, but whose claims to refugee status have not
yet been verified. Discussion in the Conference of Plenipotentiaries showed an
intention to defer to the views of the Ad Hoc Committee about the meaning of
the agreed cutoff point – “regularization” of status.1268 As described in detail
above,1269 the Committee determined that once an individual was admitted to
a process intended to assess his entitlement to protection, his status had been
“regularized.”1270
More specifically, in response to a French proposal to regulate the freedom
of movement of refugees “authorized to reside within a territory”1271 (which
became Art. 26), the American representative proposed that the Refugee
Convention also include a specific provision to regulate the right to detain
refugees “who had not yet been regularly admitted into a country”1272 (which
became Art. 31(2)). This led the British representative to inquire how “regu-
larly admitted” should be interpreted.1273 The French delegate answered him
by giving a detailed description of the French asylum system, under which an
immediate but provisional (and sometimes geographically limited) right to
remain in France was granted to asylum-seekers.1274 Clearly concerned to
maximize the protection of refugees admitted to systems of this kind that

1267
There is therefore no need to attempt a revisionist view of Art. 31(2) in order to ensure the
presumptive freedom of movement of refugees awaiting resettlement or other authorized
relocation to a third state: but see Noll, “Article 31,” at 1273.
1268
Statement of Mr. Hoare of the United Kingdom, UN Doc. A/CONF.2/SR.14, July 10,
1951, at 16.
1269
See Chapter 3.1.3. This understanding is adopted in Costello, “Article 31,” at 44.
1270
In the view of the Ad Hoc Committee, “regularization” under Art. 31(2) was not
predicated on formal recognition as a refugee. At one point, the Committee provisionally
adopted language for Art. 31(2) that would have allowed refugee-specific detention to
continue until a decision was reached on refugee status. “The High Contracting Parties
nevertheless reserve the right to apply to such refugees necessary police measures . . . until
such time as it is possible to take a decision regarding their legal admission to the country
of reception”: UN Doc. E/AC.32/L.25, Feb. 2, 1950, at 2. This language was proposed
jointly by Belgium and the United States. It was provisionally adopted on February 2,
1950: UN Doc. E/AC.32/L.26, Feb. 2, 1950, at 2. But the very next day, the Chairman
successfully proposed a version of Art. 31(2) that restored the original reference to
“regularization”: Statement of the Chairman, Mr. Chance of Canada, UN Doc. E/
AC.32/SR.24, Feb. 3, 1950, at 6. Even the British representative, who had earlier voiced
concern about this language, expressly “accepted that form of words”: Statement of Sir
Leslie Brass of the United Kingdom, ibid.
1271
Statement of Mr. Rain of France, UN Doc. E/AC.32/SR.15, Jan. 27, 1950, at 17.
1272
Statement of Mr. Henkin of the United States, ibid. at 18.
1273
Statement of Sir Leslie Brass of the United Kingdom, ibid. at 18.
1274
Statement of Mr. Rain of France, ibid. at 18.

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 4.2 f r e e d o m f r o m d e t en t i o n an d p e n a l i z a t i o n 543

bestow rights on refugees only incrementally, the representative of the United

States asserted “that persons subject to these restrictions should nevertheless be
considered, for purposes of the future convention, to have been regularly
admitted.”1275 Critically, the French delegate agreed, noting that “[a]ny person
in possession of a residence permit was in a regular position. In fact, the same
was true of a person who was not yet in possession of a residence permit but
who had applied for it and had the receipt for that application. Only those
persons who had not applied, or whose applications had been refused, were in an
irregular position [emphasis added].”1276
As this passage suggests, a refugee is only lawfully present when he has
submitted himself to all necessary investigations of his claim to protection, and
filed whatever documentation or statements are reasonably required to verify
the claim to refugee status. But once any such prerequisite obligations have
been discharged, the refugee’s presence has been regularized in the receiving
state, and refugee-specific restrictions on freedom of movement must come to
an end. Kenya’s practice of detaining even formally documented asylum-
seekers1277 thus clearly abridges this requirement.
Importantly, neither of the key reasons advanced to justify the drafting of
Art. 31(2) can logically be invoked in support of ongoing detention while
awaiting a final decision on status verification. The primary concern of the
drafters was to have some means, short of expulsion, to respond to the arrival
of a mass influx of refugees. As stated by the Danish representative,

A country which was receiving large numbers of refugees could not

contemplate making them re-cross the frontier or handing them over to
the authorities which had persecuted them. Such refugees were often
placed in camps, but it would be desirable to ensure them more normal
and humane living conditions, for which purpose a certain number of
fairly simple rules for the treatment of refugees not yet authorized to reside
in a country should be drawn up.1278

Art. 31(2) is therefore addressed to the rights of “refugees admitted provision-

ally as an emergency measure.”1279 In recognition of the “real danger, on both
economic and security grounds,”1280 posed by “a great and sudden influx of
refugees,”1281 Art. 31(2) affords governments some breathing space to
1275
Statement of Mr. Henkin of the United States, ibid. at 20.
1276
Statement of Mr. Rain of France, ibid. at 20. 1277 See text at note 836.
1278
Statement of Mr. Larsen of Denmark, UN Doc. E/AC.32/SR.15, Jan. 27, 1950, at 22. Mr.
Larsen’s reference to refugees not yet authorized to “reside” in the asylum country should
be understood in the context of his earlier remarks, in which persons admitted provi-
sionally to Denmark were nonetheless said to “reside” in that country: ibid. at 16–17.
1279
Statement of Mr. Weis of the IRO, UN Doc. E/AC.32.SR.21, Feb. 2, 1950, at 3.
1280
Statement of Mr. Herment of Belgium, UN Doc. E/AC.32/SR.40, Aug. 22, 1950, at 4.
1281
Statement of the President, Mr. Larsen of Denmark, UN Doc. A/CONF.2/SR.14, July 10,
1951, at 16.

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 544 4 ri g ht s of re f u g e e s p hy s i c a l l y p r e s e n t

determine how best to minimize the risks associated with their arrival.1282 As
the French representative to the Ad Hoc Committee explained,

The Secretariat had in mind the case of the Spanish refugees who had
presented themselves in large numbers at the French frontier towards the
end of the Spanish Civil War and for whom it had been necessary to set up
reception camps to meet their immediate needs before regularizing their
position and arranging for their dispersal throughout the country. The
obligation to remain in those camps was clearly a considerable limitation
of the right of movement . . . Such a practice might, however, prove
essential in certain circumstances.1283

Thus, objection cannot ordinarily be taken to the strictly provisional deten-

tion of refugees arriving in the context of a mass influx until more durable
arrangements can be made. On the other hand, detention even in the context of
a mass influx cannot continue once the refugees’ presence has been rendered
lawful, including by the passage of time1284 – thus making Tanzanian and
Ugandan long-term detention of Rwandan and Burundian refugees1285 legally
problematic.1286 Where countries such as these opt neither to expel refugees
nor to authenticate their Convention refugee status, they must be taken to have
acquiesced in the asylum-seekers’ assertion of entitlement to refugee rights
after a reasonable period of time has passed, in consequence of which the
refugees enjoy the presumptive right to freedom of internal movement under
Art. 26 of the Convention.1287 Nor does the fact of a mass influx provide legal
support for the Thai use of violence to enforce detention in response to a mass
influx of refugees.1288 As discussed above,1289 restrictions on freedom of
movement, even in the context of a mass influx, must be substantively reason-
able – including a duty to implement them in a manner that does not infringe
other norms of international human rights law. Brutality to impose or to
enforce detention clearly fails this test.
Beyond enabling governments to cope with a mass influx, the second and
more general objective of Art. 31(2) was to allow host states time to complete a
basic inquiry into the identity and circumstances of unauthorized asylum-
seekers before releasing them into the community. At the Conference of
1282
“If there are few illegal entrants, strict measures such as detention will be less easily
justified than in the case of a mass influx, in which case the task of authorities may become
overwhelming and necessitate a special ad hoc screening procedure”: Grahl-Madsen,
Status of Refugees II, at 419.
1283
Statement of Mr. Rain of France, UN Doc. E/AC.32/SR.15, Jan. 27, 1950, at 14.
1284
See Chapter 3.1.3 at note 169. 1285 See text at notes 909 and 904.
1286
The fact that the UNHCR sometimes cooperates with countries imposing such long-term
detentions (as in Tanzania, see text at notes 908–909) does not affect the legality or lack
thereof of the detention, as the agency has no authority to suspend Convention duties or
authorize deviations from same.
1287
See Chapter 3.1.3 at note 169. 1288 See text at note 903. 1289 See text at note 1159.

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 4.2 f r e e d o m f r o m d e t en t i o n an d p e n a l i z a t i o n 545

Plenipotentiaries, Sweden and Greece asserted the importance of allowing

governments to satisfy themselves that an unauthorized entrant does not
pose a threat to their national security.1290 France expressed a more general
concern to be in a position to investigate the identity of irregularly arriving
refugees. It argued that governments should be allowed to detain asylum-
seekers “for a few days, to obtain information on them. The French
Government’s aim in the question under discussion was that their authorities
should be able to detain for a few days completely unknown persons
unattached to any territory.”1291 Britain also thought that Art. 31(2) should
be understood to authorize “provisional detention that might be necessary to
investigate the circumstances in which a refugee had entered a country.”1292
This led the President of the Conference to conclude that “there was general
agreement with the French representative’s point of view that every State was
fully entitled to investigate the case of each refugee who clandestinely crossed
its frontier, and to ascertain whether he met the necessary entry
requirements.”1293
This exchange makes clear that Art. 31(2) establishes only a “provi-
sional” right of detention “for a few days,” while the government of the
asylum country completes a basic investigation of the asylum-seeker’s
identity and circumstances1294 – a position that is mirrored in the
Human Rights Committee’s interpretation of Art. 9 of the Covenant,
allowing “[a]sylum seekers who unlawfully enter a State party’s territory
[to] be detained for a brief initial period in order to document their entry,
record their claims and determine their identity if it is in doubt.”1295 After
1290
Statements of Mr. Petren of Sweden and of Mr. Philon of Greece, UN Doc. A/CONF.2/
SR.14, July 10, 1951, at 15–16. The Swedish delegate had earlier tabled an amendment
that would expressly authorize refugee-specific detention on national security grounds
pending a formal decision on refugee status: UN Doc. A/CONF.2/65. See also Statement
of Mr. van Heuven Goedhart of UNHCR, UN Doc. A/CONF.2/SR.35, July 25, 1951, at 13:
“Each State was, of course, entitled to make the investigations necessary to safeguard its
security.”
1291
Statement of Mr. Rochefort of France, UN Doc. A/CONF.2/SR.35, July 25, 1951, at 11.
1292
Statement of Mr. Hoare of the United Kingdom, ibid. at 12.
1293
Statement of the President, Mr. Larsen of Denmark, ibid. at 13.
1294
See generally UNHCR, “Guidelines on the Applicable Criteria and Standards Relating to
the Detention of Asylum Seekers and Alternatives to Detention” (2012), at [24]–[27]. In
Singh v. Nelson, 623 F. Supp. 545 (US DCNY, Dec. 12, 1985), the US District Court failed
to recognize the need strictly to limit the duration of the right to detain refugees under
Art. 31(2). Noting simply that “[i]t was also contemplated that in aid of its efforts to
investigate the circumstances in which a refugee had entered a country, the government
could detain and keep him in custody,” the Court refused to deem the incarceration of
Afghan claimants for more than a year to be outside the scope of Art. 31(2).
1295
UN Human Rights Committee, “General Comment No. 35: Article 9 (Liberty and
Security of Person)” (2014), UN Doc. CCPR/C/GC/35, Dec. 16, 2014, at [18]. Indeed,
UNHCR takes a somewhat more cautious approach, suggesting that “[i]t is permissible to
detain an asylum-seeker for a limited initial period for the purpose of recording, within

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 546 4 ri g ht s of re f u g e es p hy s i c a l l y p r e s e n t

that point, any ongoing detention will have to meet the requirements of
Art. 26, which authorizes the detention of refugees only on the same
grounds as are applied to aliens generally.1296 Not only is this under-
standing historically sound, but it clearly advances the overarching pur-
pose of Art. 31 as a whole – to provide refugees with an incentive to
comply with the asylum laws of host states, rather than avoid contact with
authorities1297 – since that critical objective is achieved as soon as the
asylum-seeker submits to the laws of the host state. It also aligns with the
interpretation of cognate duties under international human rights law
and, critically, avoids conflict with the other Convention rule on freedom
of movement, Art. 261298 – a general right to freedom of movement that
inheres in refugees “lawfully in” an asylum state.1299 Understanding
“regularization” to occur upon admission to a status assessment procedure
thus establishes a clear and workable delineation of precisely the kind
intended by the drafters between situations in which freedom of move-
ment is governed by Art. 31(2), and those in which Art. 26 applies.1300

the context of a preliminary interview, the elements of their claim to international

protection. However, such detention can only be justified where that information could
not be obtained in the absence of detention”: UNHCR, “Guidelines on the Applicable
Criteria and Standards Relating to the Detention of Asylum Seekers and Alternatives to
Detention” (2012), at [28].
1296
See Chapter 5.2. The only situation in which provisional detention may continue is that
set by Art. 9 of the Convention. Where the asylum country faces a “war or other grave and
exceptional circumstances,” provisional detention may be continued right up to the point
of status verification in the case of an asylum-seeker found to present a risk to national
security: see Chapter 3.5.1. Any generally applicable rules on the detention of aliens who
pose a threat to national security may, of course, be applied in relation to refugees in
conformity with Art. 26.
1297
See Chapter 4.2 at note 980.
1298
See Vienna Convention, at Art. 31(3)(c) and generally Chapter 2.2.
1299
In determining that “an alien who entered the State illegally, but whose status has been
regularized, must be considered to be lawfully within the territory [emphasis added],” the
UN Human Rights Committee cited as authority its finding that a rejected refugee
claimant against whom an expulsion order had been issued but who was allowed to
remain in a state party’s territory on humanitarian grounds met the definition of “lawful
presence”: UN Human Rights Committee, “General Comment No. 27: Freedom of
Movement” (1999), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [4], citing the decision
in Celepli v. Sweden, HRC Comm. No. 456/1991, UN Doc. CCPR/C/51/D/456/1991,
decided Mar. 19, 1993. If a state’s decision to authorize continued presence despite the
issuance of a valid expulsion order amounts to regularization of status, there can surely be
no doubt that authorization to remain in a state’s territory for the duration of a refugee
status verification procedure also amounts to a form of regularization of status giving rise
to lawful, if provisional, presence in that country.
1300
The decision to draft what became Art. 31(2) derived from the conviction that “certain
provisions should also be included for refugees who had not yet been regularly admitted
into a country”: Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.15,
Jan. 27, 1950, at 18.

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 4.2 f r ee d o m f r o m d e t en t i o n an d p e n a l i z a t i o n 547

4.2.4.4 Conditions of Detention

While the Refugee Convention does not set standards for the conditions of
detention, Art. 10 of the Civil and Political Covenant requires that all detained
persons “be treated with humanity and with respect for the inherent dignity of
the human person.”1301 This duty extends to any person “deprived of liberty
under the laws and authority of the State.”1302 Art. 10 requires states to meet a
higher standard than simply the avoidance of the “cruel and inhuman” treat-
ment prohibited by Art. 7 of the Civil and Political Covenant.1303 The Human
Rights Committee has determined, for example, that Art. 10 was breached
when an individual was returned to immigration detention contrary to expert
medical advice.1304 It has also found a violation where a detained person was
forced to sleep on the floor of a small cell without medical attention or family
contact,1305 as well as in the case of a detainee given only five minutes per day
for personal hygiene and five minutes per day of outside exercise.1306
The severe and prolonged overcrowding experienced by refugees detained
in, for example, Libya,1307 Malaysia,1308 Papua New Guinea,1309 and
Thailand1310 is clearly at odds with this obligation. The relatively detailed
attention to specific conditions of detention follows logically from the fact
that persons detained by a government are essentially at the complete mercy of
the state. Because their vulnerability to harm results specifically from an official

1301
Civil and Political Covenant, at Art. 10(1).
1302
UN Human Rights Committee, “General Comment No. 21: Humane Treatment of
Persons Deprived of their Liberty” (1992), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004,
at [2].
1303
Schabas, Nowak’s CCPR Commentary, at 275–276. Some cases alleging unacceptable
conditions of detention of refugees and migrants have been brought on the basis of
Art. 7’s prohibition of cruel, inhuman and degrading treatment or punishment: see e.g.
FKAG v. Australia, HRC Comm. No. 2094/2011, UN Doc. CCPR/C/108/D/2094/2011,
decided July 26, 2013.
1304
“[T]his form of detention was contrary to the advice of various doctors and psychiatrists,
consulted by the State party, who all advised that a further period of placement in an
immigration detention centre would risk further deterioration of Mr. Madafferi’s mental
health. Against the backdrop of such advice and given the eventual involuntary admission
of Mr. Madafferi to a psychiatric hospital, the Committee finds that the State party’s
decision to return Mr. Madafferi to Maribyrnong and the manner in which that transfer
was [e]ffected was not based on a proper assessment of the circumstances of the case but
was, as such, disproportionate. Consequently, the Committee finds that this decision and
the resulting detention was in violation of article 10, paragraph 1, of the Covenant”:
Madafferi v. Australia, HRC Comm. No. 1011/2001, UN Doc. CCPR/C/81/D/1011/2001,
decided July 26, 2004, at [9.3].
1305
Luyeye v. Zaïre, HRC Comm. No. 90/1981, UN Doc. CCPR/C/OP/2 at 124, decided July
21, 1983.
1306
Párkányi v. Hungary, HRC Comm. No. 410/1990, UN Doc. CCPR/C/41/D/410/1990,
decided Mar. 22, 1991.
1307
See text at note 915. 1308 See text at note 916. 1309 See text at notes 917–921.
1310
See text at note 913.

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 548 4 ri g ht s of re f u g e e s p hy s i c a l l y p r e s e n t

decision to detain them, the state responsible for the detention owes detainees
a “positive obligation” of care.1311 In particular, a state that elects to detain an
individual may not invoke resource insufficiency as a reason for failure to meet
the standards of Art. 10.1312 If, for whatever reason, a government is not in a
position to ensure that persons denied their liberty are treated with humanity
and respect for their inherent dignity, then it may not lawfully order their
detention.
In keeping with this affirmative obligation to ensure the protection of
detainees, UNHCR’s Executive Committee has determined that “refugees
and asylum-seekers shall, whenever possible, not be accommodated with
persons detained as common criminals, and shall not be located in areas
where their physical safety is endangered”1313 – a standard that calls into
question the US practice of detaining refugees in ordinary jails in which
some facilities are shared by refugees and criminals.1314 More generally, the
Executive Committee has concluded that “conditions of detention of refugees
and asylum-seekers must be humane.”1315 UNHCR’s guidelines on the deten-
tion of asylum-seekers offer a detailed list of specific standards to govern
provisional detention,1316 largely derived from the jurisprudence under Art.
1311
UN Human Rights Committee, “General Comment No. 21: Humane Treatment of
Persons Deprived of their Liberty” (1992), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004,
at [3].
1312
Art. 10 is “a fundamental and universally applicable rule . . . [T]he application of this rule,
as a minimum, cannot be dependent on the material resources available in the State
party”: ibid. at [4].
1313
UNHCR Executive Committee Conclusion No. 44, “Detention of Refugees and Asylum-
Seekers” (1986), at [(f)]. See also UNHCR Executive Committee Conclusion No. 85,
“Conclusion on International Protection” (1998), at [(ee)], in which the Executive
Committee “[n]ote[d] with concern that asylum-seekers detained only because of their
illegal entry or presence are often held together with persons detained as common
criminals, and reiterate[d] that this is undesirable and must be avoided whenever
possible, and that asylum-seekers shall not be located in areas where their physical safety
is in danger”; and UNHCR, “Guidelines on the Applicable Criteria and Standards
Relating to the Detention of Asylum Seekers and Alternatives to Detention” (2012), at
[48] (“The use of prisons, jails, and facilities designed or operated as prisons or jails,
should be avoided. If the asylum-seekers are held in such facilities, they should be
separated from the general prison population”).
1314
See text at note 912. Indeed, under the Civil and Political Covenant, not even accused
criminals may lawfully be detained together with convicted criminals: Civil and Political
Covenant, at Art. 10(2)(a). See also Report of the United Nations Working Group on
Arbitrary Detention, UN Doc. E/CN.4/1999/63, Dec. 18, 1998: “Custody of [refugees and
asylum-seekers shall be] effected in public premises intended for this purpose; otherwise,
the individual in custody shall be separated from persons imprisoned under crim-
inal law.”
1315
UNHCR Executive Committee Conclusion No. 44, “Detention of Refugees and Asylum-
Seekers” (1986), at [(f)].
1316
UNHCR, “Guidelines on the Applicable Criteria and Standards Relating to the Detention
of Asylum Seekers and Alternatives to Detention” (2012), at [48].

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 4.2 f reedom from detention a nd penalization 549

10(1) of the Civil and Political Covenant,1317 and from the United Nations’
Body of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment.1318 Taken together, these standards require that
detained refugees have the right to be in regular contact with persons outside
the detention facility1319 (a duty breached by Malaysia’s refusal to allow
Rohingya refugees to contact non-governmental organizations);1320 to consult
with legal counsel;1321 to receive basic medical care and other necessities of life

1317
“All persons deprived of their liberty shall be treated with humanity and with respect for
the inherent dignity of the human person”: Civil and Political Covenant, at Art. 10(1). As
affirmed by the Human Rights Committee, “Article 10, paragraph 1 . . . applies to anyone
deprived of liberty under the laws and authority of the State who is held in prisons,
hospitals – particularly psychiatric hospitals – detention camps or correctional institu-
tions or elsewhere. State parties should ensure that the principle stipulated therein is
observed in all institutions and establishments within their jurisdiction where persons are
being held”: UN Human Rights Committee, “General Comment No. 21: Humane
Treatment of Persons Deprived of their Liberty” (1992), UN Doc. HRI/GEN/1/Rev.7,
May 12, 2004, at [2]. Schabas summarizes the Human Rights Committee’s jurisprudence
on Art. 10(1) as establishing a “positive obligation to ensure human dignity. Regardless of
economic difficulties, the State must establish a minimum standard for humane condi-
tions of detention . . . In other words, it must provide detainees and prisoners with a
minimum of services to satisfy their basic needs (food, clothing, medical care, sanitary
facilities, education, work, recreation, communication, light, opportunity to move about,
privacy, etc.)”: Schabas, Nowak’s CCPR Commentary, at 276.
1318
UNGA Res. 47/173, Dec. 9, 1988, Annex (UN Detention Principles). As Schabas observes,
the report proposing what became Art. 10 of the Covenant “made express reference to the
Standard Minimum Rules for the Treatment of Prisoners”: Schabas, Nowak’s CCPR
Commentary, at 271.
1319
“A detained or imprisoned person shall have the right to be visited by and to correspond
with, in particular, members of his family and shall be given adequate opportunity to
communicate with the outside world, subject to reasonable conditions and restrictions as
specified by law or lawful regulations”: UN Detention Principles, at Principle No. 19. See also
Principles Nos. 15 and 16, ibid. The UNHCR elaborates that “[f]acilities should be made
available to enable such visits. Such visits should take place in private unless there are
compelling reasons to warrant otherwise”: UNHCR, “Guidelines on the Applicable
Criteria and Standards Relating to the Detention of Asylum Seekers and Alternatives to
Detention” (2012), at [48(vii)].
1320
See text at note 833.
1321
“A detained person shall be entitled to have the assistance of a legal counsel. He shall be
informed of his right by the competent authority promptly after arrest and shall be provided
with reasonable facilities for exercising it . . . If a detained person does not have a legal
counsel of his own choice, he shall be entitled to have a legal counsel assigned to him by a
judicial or other authority in all cases where the interests of justice so require and without
payment by him if he does not have sufficient means to pay”: UN Detention Principles, at
Principle No. 17. Furthermore, “[a] detained or imprisoned person shall be entitled to
communicate and consult with his legal counsel . . . A detained or imprisoned person shall
be allowed adequate time and facilities for consultations with his legal counsel . . . The right
of a detained or imprisoned person to be visited by and to consult and communicate, without
delay or censorship and in full confidentiality, with his legal counsel may not be suspended or
restricted save in exceptional circumstances, to be specified by law or lawful regulations,

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 550 4 ri g ht s o f re f u g e e s p hy s i c a l l y p r e s e n t

(a standard not respected when, for example, Hungary failed to provide

heating1322 in refugee detention facilities);1323 to benefit from opportunities
for exercise and recreation;1324 to enjoy religious freedom;1325 to access educa-
tion, culture, and information;1326 and to be assured of assistance to dependent
family members.1327 These basic qualitative standards must, of course, be
interpreted with due regard to the particular needs of children, women, sexual
minorities, and others who may be particularly vulnerable to harm while in
detention1328 – a duty breached by Mexico1329 and the United Kingdom1330
when they detained children seeking asylum in a shared facility with adults.

4.3 Physical Security

Those who enjoyed relative privilege and safety before becoming refugees usually
find their security diminished as a result of the refugee experience itself. For those
who were already disfranchised, refugeehood likely exposes them to even greater

when it is considered indispensable by a judicial or other authority in order to maintain

security and good order”: UN Detention Principles, at Principle No. 18. See also UNHCR,
“Guidelines on the Applicable Criteria and Standards Relating to the Detention of Asylum
Seekers and Alternatives to Detention” (2012), at [47(ii)].
1322
See text at note 911.
1323
“A proper medical examination shall be offered to a detained or imprisoned person as
promptly as possible after his admission to the place of detention or imprisonment, and
thereafter medical care and treatment shall be provided whenever necessary. This care and
treatment shall be provided free of charge”: UN Detention Principles, at Principle No. 24. See
also Principles Nos. 25 and 26: ibid. UNHCR suggests that the basic necessities to which
asylum-seekers should have access include “beds, climate-appropriate bedding, shower
facilities, basic toiletries, and clean clothing”: UNHCR, “Guidelines on the Applicable
Criteria and Standards Relating to the Detention of Asylum Seekers and Alternatives to
Detention” (2012), at [48(x)].
1324
“The opportunity to conduct some form of physical exercise through daily indoor and
outdoor recreational activities needs to be available; as well as access to suitable outdoor
space, including fresh air and natural light. Activities tailored to women and children, and
which take account of cultural factors, are also needed”: UNHCR, “Guidelines on the
Applicable Criteria and Standards Relating to the Detention of Asylum Seekers and
Alternatives to Detention” (2012), at [48(viii)].
1325
“The right to practice one’s religion needs to be observed”: ibid. at [48(ix)].
1326
“A detained or imprisoned person shall have the right to obtain within the limits of available
resources, if from public sources, reasonable quantities of educational, cultural and informa-
tional material, subject to reasonable conditions to ensure security and good order in the
place of detention or imprisonment”: UN Detention Principles, at Principle No. 28.
1327
“The appropriate authorities shall endeavour to ensure, according to domestic law, assistance
when needed to dependent and, in particular, minor members of the families of detained or
imprisoned persons and shall devote a particular measure of care to the appropriate custody
of children left without supervision”: UN Detention Principles, at Principle No. 31.
1328
UNHCR, “Guidelines on the Applicable Criteria and Standards Relating to the Detention
of Asylum Seekers and Alternatives to Detention” (2012), at [49]–[65].
1329
See text at note 923. 1330 See text at note 924.

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 4.3 p hysical security 551

risks of physical harm.1331 As Human Rights Watch observed, “[w]omen refugees

are raped because they are refugees, . . . and because they are women.”1332
Physical security is frequently jeopardized during the process of flight to a
state of refuge. A military helicopter off the Yemeni coastline killed more than
forty Somali refugees traveling by boat.1333 Many Central American refugees
traveling overland to North America have been subjected to extortion, kidnap-
ing, and physical abuse in transit countries, particularly in Mexico.1334 An
especially notorious case was the series of attacks between 1980 and 1984
perpetrated by Thai pirates on Vietnamese “boat people” attempting to pass
through the Gulf of Thailand and South China Sea en route to Hong Kong, the
Philippines, and other asylum countries. In the words of one eyewitness,

While all the men were confined to the hold of the refugee boat . . . some, if
not all of the approximately 15–20 women and young girls who were kept in

1331
Some persons who were already vulnerable – typically women, children, older persons,
the disabled, and the poor – may find that becoming a refugee is a source of enhanced
protection, particularly in cases where they are received in a society that is more socially
inclusive. It may also be the case that the actual conditions of life for asylum-seekers may
result in a revaluation of the relative importance of the skills and abilities of traditionally
marginalized groups. For example, success in coping with camp life frequently puts a
premium on activities within the traditional realm of “women’s work,” such as food-
gathering, cooking, and the establishment and maintenance of living quarters. In such
circumstances, women refugees have reported that the relative insecurity of life as an
asylum-seeker has, perhaps ironically, been a source of personal empowerment for them.
See e.g. G. Garcia Hernandez and N. Garcia, “Mama Maquin Refugee Women:
Participation and Organization,” in W. Giles et al. eds., Development and Diaspora:
Gender and the Refugee Experience 258 (1996), at 262.
1332
Human Rights Watch, Human Rights Watch Global Report on Women’s Human Rights
(1995), at 101. The same report notes that “[s]trong cultural stigma attached to rape
further intensifies the rape victims’ physical and psychological trauma. Women in
refugee and displaced persons camps who acknowledge being raped may be ostracized,
or even punished, by their families”: ibid. at 103.
1333
A. Zeyad, “Somalis Fleeing Yemen War Caught in Nighttime Sea Attack,” Reuters, Mar.
30, 2017.
1334
In highlighting the particular vulnerability of persons transiting through Mexico, the
Inter-American Commission on Human Rights noted “multiple cases in which migrants
are abducted, driven into forced labor, murdered, disappeared and, in the case of women,
frequently the victims of rape and sexual exploitation by organized crime . . . [I]n a
considerable number of cases, State agents – members of the various police forces or
personnel of the National Institute of Migration – have been directly involved in the
commission of the crimes and human rights violations listed above.” The scale and
systemic nature of the attacks led the Commission to conclude that “[a]t the present
time, the extreme vulnerability of migrants and other persons to the heightened risks of
human mobility in Mexico is one of [the worst] human tragedies in the region”: Inter-
American Commission on Human Rights, Human Rights of Migrants and Other Persons
in the Context of Human Mobility in Mexico, OEA/Ser.L/V/II., Doc. 48/13 (2013), at [5].
See also “Report of the Special Rapporteur of the Human Rights Council on Extrajudicial,
Summary or Arbitrary Executions,” UN Doc. A/72/335, Aug. 15, 2017, at [24], [44].

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 552 4 r i gh t s of ref ug ees physic ally present

the cabin of the boat were raped. The youngest of these girls was around 12
years old. Soon afterwards, the pirates set the boat on fire with all the
Vietnamese on board. In the ensuing panic, the Vietnamese grabbed
buoys, cans and floats, and plunged into the sea. The crews of the pirate
boats then used sticks to prevent them from clinging to floating objects.1335

Smuggling and trafficking networks “at the core of the mass movement of
people” also pose great risk to refugees’ physical security.1336 Egyptian and
Sudanese traffickers have employed torture methods to extract exorbitant sums
from the relatives of refugees traveling to seek protection;1337 those whose families
are unable to pay may be held for months or even killed.1338 Indeed, “[i]n some
cases, these crimes are facilitated by collusion between traffickers and Sudanese
and Egyptian police and the military who hand victims over to traffickers in police
stations, turn a blind eye at checkpoints, and return escaped trafficking victims to
traffickers.”1339 Mass graves discovered in Malaysia1340 and Thailand1341 demon-
strate the perils of such practices.

1335
“A Tale of Horror,” (1989) 65 Refugees 25.
1336
“Report of the Special Rapporteur of the Human Rights Council on Extrajudicial,
Summary or Arbitrary Executions,” UN Doc. A/72/335, Aug. 15, 2017, at [43].
“Smugglers and traffickers are an integral component of this movement; without them,
refugees and migrants are generally unable to navigate the barriers many States erect to
deter entry. Some smugglers are linked to transnational criminal networks while many
are not. With the multiplication of predatory actors, the risks are increasing. There are
reports of abductions; people being detained or kidnapped for ransom; forced labour;
torture, including rape; and people being thrown off boats or left behind in deserts”:
“Report of the Special Rapporteur of the Human Rights Council on Extrajudicial,
Summary or Arbitrary Executions,” UN Doc. A/72/335, Aug. 15, 2017, at [9].
1337
“A common technique traffickers use is to hold a mobile phone line open to their hostages’
relatives as they physically abuse their victims. The relatives hear the screams and the
kidnappers demand the ransom for the victims’ release. Many Eritreans have told the UN,
non-governmental refugee organizations, activists, and journalists of their experiences of
rape, burning, mutilation and deformation of limbs, electric shocks, and other forms of
violence”: Human Rights Watch, “‘I Wanted to Lie Down and Die’: Trafficking and Torture
of Eritreans in Sudan and Egypt,” Feb. 11, 2014, at 1; see also ibid. at 22–49.
1338
Ibid. at 37. 1339 Ibid. at 4.
1340
B. Lih Yi, “Malaysia Mass Graves: Villagers Tell of Migrants Emerging from Secret Jungle
Camps,” Guardian, May 26, 2015. Malaysia has delayed investigating these deaths until
recently. “Malaysia will investigate allegations of a police cover-up in the 2015 discovery of
mass graves that held corpses of scores of Rohingya Muslims from Myanmar and
Bangladeshi migrants at human-trafficking camps in the jungle, a senior government official
said Thursday. Deputy Home Minister Nur Jazlan Mohamad spoke to BenarNews, an RFA-
affiliated online news service, after a local newspaper, the New Straits Times (NST),
published an exposé alleging that Malaysian authorities had known about the graves and
camps close to Wang Kelian, a town near the Thai border in the northern state of Perlis,
months before police publicly revealed the grim discovery”: “Malaysia Will Probe Alleged
Cover-Up in Discovery of Mass Graves, Minister says,” Radio Free Asia, Dec. 22, 2017.
1341
T. Fredrickson, “Thailand: Mass Graves of Rohingya found in Trafficking Camp,”
Bangkok Post, May 1, 2015. Thailand held trials for, and convicted, traffickers (and a

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 4.3 p hysical s ecurity 553

Even refugees who manage to reach the border of an asylum country are not
spared physical abuse.1342 Sometimes border guards take advantage of the
refugees’ predicament and vulnerability.1343 For example, refugees attempting
to enter Bulgaria have faced beatings and robberies at the hands of border
police before being turned away.1344 US border officials have employed such
tactics as the “chase and scatter” method,1345 the sabotage of humanitarian
supplies placed near the border,1346 and, for those who succeed in entering its
territory, lateral repatriation to dangerous or unfamiliar areas.1347 Turkish

senior army general) for involvement in the mass killings: O. Holmes, “Thailand Convicts
Traffickers after 2015 Mass Graves Discovery,” Guardian, July 19, 2017.
1342
The United Nations Special Rapporteur on the Rights of Non-Citizens has determined
that “[t]here are reliable reports of . . . police violence, intimidation, and bullying of
asylum-seekers”: “Final Report of the Special Rapporteur on the Rights of Non-Citizens:
Addendum: Examples of Practice in Regard to Non-Citizens,” UN Doc. E/CN.4/Sub.2/
2003/23/Add.3, May 26, 2003, at [10].
1343
As UNHCR has observed, women and girls are particularly at risk in these circumstances.
“Border guards in some countries have detained refugee women or girls for weeks for
their sexual use. Women have been raped by soldiers while crossing a border, and in some
cases abducted and prostituted by them . . . Unaccompanied women asylum-seekers
arriving by air in a country of asylum, forced to spend extended periods of time in the
holding area of an airport before being transferred to a hotel where they were guarded
around the clock, have been raped by their guards while the authorities were deciding to
which country to expel them”: UNHCR, “Note on Certain Aspects of Violence Against
Women,” UN Doc. A/AC.96/822, Oct. 12, 1993, at 7.
1344
R. Lyman, “Bulgarian Border Police Accused of Abusing Refugees,” New York Times,
Dec. 23, 2015.
1345
According to one report detailing the plight of those attempting to cross in wilderness
regions, “Border Patrol agents chase border crossers through the remote terrain and
utilize the landscape as a weapon to slow down, injure, and apprehend them . . . [Such]
chase[s] lead to heat exhaustion and dehydration, blisters and sprains, injuries due to
falls, and drownings”: La Coalicion de Derechos Humanos and No More Deaths, “Part I:
Deadly Apprehension Methods: The Consequences of Chase and Scatter in the
Wilderness,” Dec. 2016, at 3. The agents also “regularly assault border crossers at the
culmination of a chase. Assault then contributes to a violent cycle in which border
crossers flee from both interdiction and potential serious injury and death and agents,
in turn, often respond with escalating aggression . . . [C]hase in remote areas commonly
results in excessive use of force. In our survey, tackles, beatings, Tasers, dog attacks, and
assault with vehicles were all reportedly employed by the Border Patrol against border
crossers during chase”: ibid. at 3. “If found, the disappeared turn up in detention centers,
in morgues, or skeletonized on the desert floor; many human remains are never identi-
fied. Thousands more are never located”: ibid. at 4. The group estimates that in the 2015
calendar year alone, it opened or investigated over 1,200 cases of missing persons
attempting to cross the border.
1346
S. Lemons, “Border Patrol Agent Steals Blankets, Provisions Meant for Migrants, says No
More Deaths,” Phoenix New Times, Jan. 17, 2013.
1347
No More Deaths, “A Culture of Cruelty: Abuse and Impunity in Short-Term US Border
Patrol Custody,” 2011, at 29–32. See also N. Miroff, “Lateral Deportation: Migrants
Crossing the Mexican Border Fear a Trip Sideways,” Washington Post, Feb. 12, 2013.

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 554 4 r i gh t s of ref ug ees physic ally present

officials have shot and killed refugees who were attempting to escape northern
Syria,1348 while Hungarian border guards posed for “selfies” with arriving
refugees before taking their clothes and using dogs to chase them back across
the border.1349 And the Malaysian government paid handsome bonuses to its
officials to cane arriving refugees as punishment for their illegal entry.1350
Yet the evidence suggests that the greatest risk of physical abuse actually
arises once refugees reach the camps where they are in principle to be pro-
tected. Sometimes camp officials or employees are directly responsible. Iranian
refugees in Camp Ashraf were repeatedly attacked by Iraqi security forces and
suffered dozens of deaths and injuries.1351 Many Cambodian refugees in camps
along the Thai–Cambodian border were tortured and killed with impunity by

1348
Human Rights Watch, “Turkey: Border Guards Kill and Injure Asylum Seekers,” May 10,
2016. See also J. Dettmer, “Monitoring Group Accuses Turkish Border Guards of Killing
163 Syrian Refugees,” Voice of America, Dec. 6, 2016.
1349
According to a researcher for Human Rights Watch, the guards “‘made people stand in
front of a camera holding up a piece of paper listing that they had irregularly crossed into
Hungary . . . Part of that statement on film would say police officers have behaved nicely
and appropriately. Once they stopped filming, a lot of migrants said the beatings would
ensue so there would be no marking on the official video.’ She said the ‘staged’ filming was
allowing the Hungarian government to refuse to properly investigate the allegations,
adding: ‘The fact nothing is being done to stop it is completely unacceptable’”:
L. Dearden, “Hungarian Border Guards ‘Taking Selfies with Beaten Migrants’ as
Crackdown against Refugees Intensifies,” Independent, Mar. 4, 2017. When temperatures
reached -20°C in early 2017, “a new form of torment was reported. Refugees said border
police would take their drinking water and pour it over them before abandoning them in
the snow, sometimes taking coats, clothes and shoes.” Those apprehended were then
returned to Serbia, from which they had entered, sometimes completely naked: ibid.
1350
“In a response to a parliamentary question on 9 March, Home Minister Hishammuddin
Hussein disclosed that Malaysia had caned 29,759 foreigners between 2005 and 2010 for
immigration offences alone . . . Since 2002, when Parliament amended the Immigration
Act 1959/63 to make immigration violations such as illegal entry subject to caning, tens of
thousands of refugees and migrant workers have been caned”: Amnesty International,
“Malaysia: Government Reveals Nearly 30,000 Foreigners Caned,” Mar. 10, 2011.
Amnesty International also reports a robust system of financial incentives that result in
bonuses and bribing: “In 2005, the government increased the bonus paid to caning
officers to 10 ringgit (US$3.20) a stroke, up from 3 ringgit previously . . . By executing
200 strokes a month, a caning officer can supplement his base salary by 24,000 ringgit (US
$7,680), or roughly equivalent to Malaysia’s annual per capita GDP . . . According to ex-
prisoners interviewed by Amnesty International, caning officers exploit a loophole in the
caning procedure: a stroke that misses is still counted as a stroke. For a bribe, prisoners
said, some caning officers will agree to miss a stroke . . . The “fee” charged, however, may
also depend on the victim’s ability to pay. The sister of a wealthy businessman in Kuala
Lumpur told Amnesty International that she paid US$6,000 to reduce the caning of her
brother after he was convicted for criminal breach of trust. In comparison, prisoners such
as refugees, migrants and drug users have little money. As a result, they said they could
not afford to mitigate their caning through bribery”: Amnesty International, “A Blow to
Humanity: Torture by Judicial Caning in Malaysia” (Dec. 2010), at 29.
1351
“Iraq Raid on Iranian Exiles’ Camp Ashraf Killed 34,” BBC, Apr. 14, 2011.

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 4.3 p hysical s ecurity 555

Thai military officers or the Khmer Rouge officials to whom the Thais
entrusted responsibility for running some camps.1352 In five extrajudicial
killings of refugees reported by Amnesty International in 1988, “the victims
were apparently executed . . . simply because they were found outside the camp
boundaries where they had gone to collect food, firewood or building mater-
ials, or to engage in barter with Thai farmers or merchants for needed com-
modities.”1353 Hundreds of Rwandan Hutu refugees were beaten or killed by
Congolese security forces in 2009.1354 And a series of Lebanese raids on refugee
camps led to four deaths under questionable circumstances; officials later
attributed the deaths to “pre-existing conditions.”1355 In 2016, a leaked cache
of documents from Australia’s offshore processing center on Nauru revealed
security misconduct ranging from threatening to kill a young boy to condi-
tioning certain privileges on sexual favors.1356 So dire were the conditions that
desperate refugees sewed their lips shut, partook in hunger strikes, and
engaged in various forms of self-harm.1357
Perhaps the most prevalent form of abuse by officials administering refugee
camps is rape and sexual assault. For example, members of Angolan security
forces have routinely engaged in sexual violence against Congolese refugee
1352
“Many of the human rights abuses that characterized the population removals appear to
be regular occurrences inside the refugee camps administered by the Khmer Rouge:
forced labor, denial of medical care, denial of food as a means of coercion, use of civilians
against their will for military purposes, and harsh penalties, including execution, for those
who disobey orders”: Asia Watch, “Khmer Rouge Abuses Along the Thai–Cambodian
Border” (1989), at 23.
1353
Amnesty International, “Thailand: Extrajudicial Executions of Kampuchean Refugees”
(1988), at 1. See also T. Banbury, “Kampuchean Displaced Persons in Thailand: Between
the Devil and the Deep Blue Sea” (1988), at 27, in which the author details murders, rapes,
robberies, and beatings carried out by both the Khmer Rouge forces in charge of some of
the refugee camps and by the Thai military forces.
1354
US Department of State, “2009 Human Rights Report: Democratic Republic of the
Congo,” Mar. 11, 2010. Such attacks continued; in 2017, for example, members of the
national army shot to death thirty-nine Burundian refugees protesting the detainment
and possible repatriation of four members of their community: A. Essa and S. Wembi,
“Why were 39 Burundian Refugees Shot Dead in the DRC?” Al Jazeera, Sept. 19, 2017.
1355
According to the Interior Minister, the arrests were made as part of a security sweep in
response to recent attacks on the city of Arsal. As part of his explanation, he emphasized
that the operation was not a “‘campaign against the displaced and refugees,’ but against
the terrorists” and insisted that “‘all security precautions are taken to prevent any terrorist
plot from occurring. The fear of sleeper cells is present all over the world’”: Al Arabiya
English, “Lebanese Interior Minister: Our Army is not Targeting Syrian Refugees,” July 4,
2017. See also “Five Suicide Blasts Shake Lebanese Border Town of Arsal,” TRT World,
June 30, 2017.
1356
P. Farrell, N. Evershed, and H. Davidson, “The Nauru Files: Cache of 2,000 Leaked
Reports Reveal Scale of Abuse of Children in Australia Offshore Detention,” Guardian,
Aug. 10, 2016.
1357
L. Dearden, “Leaked Documents Reveal ‘Abuse and Mistreatment’ of Refugees at
Australian Offshore Detention Centre,” Independent, Aug. 10, 2016.

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women, often in the presence of their children and others.1358 Sexual abuse has
also occurred at the hands of relief workers. In a 2002 report on sexual exploit-
ation throughout Western Africa, UNHCR and Save the Children (UK) found
that workers were able to abuse their power in large measure because of the
endemic scarcity of food and other resources that characterizes life in so many
refugee camps.1359 Although NGOs have since been held to higher account for
the actions of their workers – as is evidenced, for example, by the European
Commission’s suspension of funding to a US aid agency pending an investiga-
tion of two employees accused of sexual exploitation in Greek camps1360 –
survivors continue to face difficulties in receiving adequate protection.1361
1358
According to Human Rights Watch, “members of the security forces – including border
police, rapid intervention police, and immigration officials – routinely commit violence
against female Congolese migrants in a number of transit prison facilities where migrants
are detained before deportation, particularly in the border provinces of Cabinda and
Lunda Norte. Corroborated abuses targeting women include rape, sexual coercion,
beatings, deprivation of food and water, and – in some cases – sexual abuse in the
presence of children and other female inmates. In a positive step since 2011, the govern-
ment has undertaken efforts to build new transit prisons with more humane conditions
for migrants. However, Human Rights Watch is not aware of any credible and thorough
investigation and prosecution of those security forces officials who were responsible for
serious human rights violations against Congolese migrants during expulsions from
Angola”: Human Rights Watch, “Universal Periodic Review: Angola,” Feb. 17, 2014.
1359
UNHCR and Save the Children (UK), “Note for Implementing and Operational Partners
on Sexual Violence and Exploitation: The Experience of Refugee Children in Guinea,
Liberia and Sierra Leone based on Initial Findings and Recommendations from
Assessment Mission, 22 October – 30 November 2001,” Feb. 2002.
1360
A. Vogt, “Aid Agency’s Funding Suspended after Staff are Accused of Sexually Exploiting
Refugees,” Telegraph, June 2, 2017.
1361
A 2008 study by Humanitarian Accountability Partnership International found that “‘[t]o
complain or not to complain’ is still a conundrum for most of the beneficiaries with
whom we spoke. Beneficiaries felt they had few channels through which to complain.
Options of complaints mechanisms are limited to dropping a note in a complaints box or
reporting to an individual or chain of people, each of whom will have to choose to take the
complaint seriously and pass it ‘up’ for action. Beneficiaries worry particularly about the
lack both of confidentiality and of security assurances should they complain. Many do not
want to make problems for fellow refugees and actually see the complainant as the
troublemaker who risks creating conflict within their community by complaining.
Others stated they feared losing aid if they complained about humanitarian agencies’
actions. Humanitarian staff (volunteer, incentive and salaried) expressed reluctance to
report on fellow aid workers. Fear of retaliation is pervasive and prohibits most would-be
complainants. Some, although very few, participants were willing and ready to report
alleged sexual exploitation and abuse related misconduct by humanitarian workers (local,
national or international)”: Kirsti Lattu, “To complain or not to complain: Still the
question,” Humanitarian Accountability Partnership International, June 2008, at 3.
Save the Children identifies three protection gaps contributing to this problem: inad-
equate support and encouragement to speak out about abuse, the need for stronger
leadership in implementing new procedures, and the lack of investment in addressing
abuse at all levels: C. Csáky, “No One to Turn to: The Under-reporting of Child Sexual
Exploitation and Abuse by Aid Workers and Peacekeepers” (2008), at 1.

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 4.3 p hysical s ecurity 557

Until its closure in 2016, sexual abuse at the hands of unpaid charity workers was
rife in the Calais “jungle,” enabled by the lack of monitoring or enforcement in a
place described as a “black hole in one of the largest economies on the
planet.”1362
Yet much of the danger within refugee camps emanates not from author-
ities, but from fellow camp residents. One of the most horrifying examples was
the reign of terror that persisted for Rwandan refugees inside Zaïre (now the
Democratic Republic of Congo), where armed refugees continued their vio-
lence and extermination of Tutsis and moderate Hutus from within the
borders of the camps themselves.1363 Risks to physical security can also be
the by-product of conditions of confinement. Overcrowding, failure to treat
refugees with dignity, and the absence of meaningful work or study opportun-
ities often set the stage for sexual and other forms of violence. For example,
violence between Afghans and Kurds in an overcrowded French refugee camp
ended with a fire that forced over 1,500 to flee.1364 Those who identify as
members of sexual minorities may face heightened violence and vulnerability.
As observed in one report on Bhutanese refugees in Nepal, “[s]exual abuse is
common, but often goes unreported because the right questions are not being
asked, and because survivors of sexual violence are reluctant to report events
1362
According to one charity leader, aid organizations often find themselves unable to expel
unaffiliated volunteers. When speaking of one such volunteer, she observed that “[h]e
initially worked with another charity called Auberge des Migrants. But when he was
reported for inappropriate behaviour with female refugees they told him to leave. He then
came here for a day and they phoned us up and warned us. So we told him to leave, but
then he went to the camp on his own and we had no power to force him out. Luckily a
couple of our male volunteers went and spoke to him and persuaded him to leave. So he’s
gone now. But it’s extremely difficult for us to control. A fifth of the volunteers are here
independent of any organization”: M. Bulman, “Calais Jungle Volunteers Accused of
‘Sexually Exploiting’ Camp’s Refugees,” Independent, Sept. 21, 2016, quoting Clare
Mosely, founder of Care4Calais. Further difficulties stem from the camp’s informal status
and its resulting lack of monitoring: “The policing in refugee camps is generally down to
the state or UNHCR on the ground. But in the case of Calais, in the informal, irregular
setting, this all gets more difficult . . . There’s lack of monitoring. It all stems from the fact
that the Jungle has been this ignored black hole in one of the largest economies on the
planet”: ibid., quoting Ruairidh Valler, international media manager of Save the
Children.
1363
African Rights, Rwanda: Death, Despair and Defiance (1994) (African Rights, Rwanda),
at 656–657.
1364
According to government employees, the fight broke out following the closure of the
camp in Calais: “until November, [the Grande-Synthe camp’s] population had consisted
mainly of Iraqis, Kurds and Syrians. The closing of the Calais camp led to the arrival of
Afghans in Grande-Synthe, creating overpopulation and tensions with the Kurds. ‘In the
last two months, we noticed several incidents between the two communities,’ Mr.
Caremelle said. ‘The Afghans were housed in the kitchen quarters of the camp, and
they started to transform the kitchen into their dormitories. That’s what yesterday’s fight
was about’”: M. Schreuer, “A Fight, and a Fire, Roll through a Migrant Camp in France,”
New York Times, Apr. 11, 2017.

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 558 4 r i gh t s of ref ug ees physic ally present

that will ‘out’ them to legal authorities.”1365 Widespread reports of violence in

camps have prompted at least two European states to open shelters specifically
for gay, lesbian and other sexual minority refugees.1366
Faulty design and management of the camps can exacerbate protection prob-
lems. There is increased likelihood of attack where communal latrines are sited far
from living quarters, where there is poor lighting, and where night patrols are
inadequate.1367 Shelters lacking gender-separated toilets and sleeping quarters in
Germany and Sweden have led to rape and other forms of sexual violence,
whether at the hands of fellow residents or the personnel tasked with protecting
them.1368 At one such camp in France, adult diapers were the product most in
demand by women seeking to avoid the bathrooms at night.1369 Refugee women
from Darfur have also faced rape and assault when venturing outside camps in
eastern Chad to search for firewood, water, straw, and other necessities.1370 Those
fetching wood at Tanzania’s Nduta camp are similarly vulnerable to violence, both
1365
K. Knight, “The Plight of LGBTI Asylum Seekers, Refugees,” IRIN News, May 7, 2013.
1366
“Gay Rights Group to Open Center for GLBT Asylum Seekers in Berlin,” Reuters, Jan. 22,
2016; see also L. D. Veron, “Bologna Opens First Italian Center for LGBT Refugees,
following German Example,” Towleroad, Jan. 10, 2017.
1367
S. Forbes Martin, Refugee Women (1991) (Forbes Martin, Refugee Women), at 21.
1368
According to one study, “reception and accommodation centers in both Germany and
Sweden have severe problems related to overcrowding. Often there is a lack of any private
spaces for individuals or families, leaving women and girls unable to change their clothes
in private or remove their hijabs. The [Women’s Refugee Commission] also noted that
not all accommodation centers offer sex-separated toilets and shower facilities with
locking doors to ensure privacy and safety for women and girls. One female asylum-
seeker in Stockholm described living for a month in a large hall with many other asylum-
seekers, with only pieces of cardboard between beds. The [Commission] was told of other
centers where there are no walls or dividers of any kind”: Women’s Refugee Commission,
“Falling through the Cracks: Refugee Women and Girls in Germany and Sweden,” Mar.
2016, at 6–7. Risk of attack increases during the night, as reported one study on shelter
conditions in Berlin: “At night, the volunteers and social workers go home, leaving
behind only security guards. But many women view the guards as a threat rather than a
form of protection. Even in shelters with separate rooms for women, they said they did
not feel safe, since security workers and shelter managers have master keys that give them
access to all the rooms. The official reason for this is fire safety, but women said the keys
are used to enter rooms even when there is no immediate danger. All of the women IRIN
spoke to were scared of going to the toilet at night. Zina, 49, a resident of the Tempelhof
shelter, said: ‘I often have strong pain because I do not use the toilet at night. I am
frightened.’ Both Zina and Sally felt intimidated by guards who made inappropriate
noises or gestures when they passed them on their way to the toilets. On one occasion, a
guard even followed Sally in”: P. Müller, D. Sukharchuk, and Y. Polat, “Women Refugees
at Risk of Sexual Assault in Berlin Shelters,” IRIN News, May 10, 2017.
1369
M. Townsend, “Women and Children ‘Endure Rape, Beatings and Abuse’ inside
Dunkirk’s Refugee Camp,” Guardian, Feb. 11, 2017.
1370
Amnesty International, “‘No Place for us Here’: Violence against Refugee Women in
Eastern Chad,” Sept. 2009, at 11–12. “Beyond the widespread silence of rape survivors
and the difficulties in identifying the perpetrators, there is a lack of accountability and
impunity for sexual violence committed against refugee women in and outside the camps.

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 4.3 p hysical security 559

from fellow Burundian refugees and the locals who wait for them in the
woods.1371
Closed detention facilities are particularly likely to give rise to risks to
physical security, with women and children the least protected and most
vulnerable portion of the population.1372 As Susan Forbes Martin explains,
“[t]here is evidence that psychological strains for husbands unable to assume
normal cultural, social and economic roles can result in aggressive behavior
towards wives and children. The enforced idleness, boredom and despair that
permeate many camps are natural breeding grounds for such violence.”1373 At
the Zaatari camp in Jordan, for example, the inability of men to provide for
their families and lack of physical space have been cited as triggering a “rapid
escalation” in domestic violence.1374
Beyond physical security risks from officials and fellow refugees, refugees
living in camps are frequently “sitting ducks” for armed attacks. Refugees may
simply be caught up in the horrors of an ongoing war, as was the case when
Islamic State militants attacked Iraqi refugees and others near the Al Hol
refugee camp in Syria, leading to the deaths of dozens, including children.1375
But refugees may also be the direct objects of attack by their country of origin.
For example, an Antonov plane from Sudan bombed the Yida refugee camp in
South Sudan.1376 Such attacks are especially common when refugee camps are
located near insecure border areas.1377 Perhaps most notoriously, refugee
camps and settlements across Southern Africa were often attacked by agents
of the apartheid-era South African government. Between 1974 and 1986, more
than 5,000 refugees from South Africa were systematically killed in camps
inside Mozambique and Zambia, as well as in their homes in Botswana,
Lesotho, Swaziland, and Zimbabwe.1378 Rebels fighting the Liberian

Some victims allege that some local authorities and camp leaders do not take cases of rape
and other violence against women and girls seriously”: ibid. at 12.
1371
R. Sanghani, “I Became a Child Refugee to Escape Rape. It Didn’t Work,” Telegraph, Oct.
12, 2016.
1372
Lawyers’ Committee for Human Rights, Inhumane Deterrence: The Treatment of
Vietnamese Boat People in Hong Kong (1989), at 14–18.
1373
Forbes Martin, Refugee Women, at 21. See also Helton, “Thailand,” at 33: “Overcrowding,
shortages of food and water, stress and the constant fear of harassment of resistance
elements within the camp, have created a deteriorating social situation. Incidents of
domestic violence and suicide attempts have risen dramatically.”
1374
K. Leigh, “Domestic Violence on the Rise among Syrian Refugees,” New York Times, Aug.
29, 2014.
1375
A. Barnard, “Islamic State Attack Kills Dozens Near Syria Refugee Camp,” New York
Times, May 2, 2017.
1376
“Sudan ‘Bombs Refugees’ in South Sudan’s Unity State,” BBC, Nov. 11, 2011.
1377
R. Gorman, Mitigating Misery (1993), at 173–174.
1378
E. Mtango, “Military and Armed Attacks on Refugee Camps,” in G. Loescher and
L. Monahan eds., Refugees and International Relations 92 (1990) (Mtango, “Armed
Attacks”), at 93.

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 560 4 ri g h t s of r e f u g e es ph y s i c a l l y p r e s e nt

government attacked Liberian refugees left unprotected just inside the border
of Côte d’Ivoire.1379 Hundreds of thousands of refugees from Sierra Leone
were required to live in isolated camps in Guinea near the border with their
country of origin. Those camps frequently came under attack in cross-border
excursions by rebels and government-sponsored militias,1380 forcing the UN
drastically to cut back the delivery of vital supplies. As one refugee remarked,
“It is better to die at home than die in Guinea . . . We are caught in a death
trap here. Both sides use us as human shields. We are surrounded by
guns.”1381
The risk of attack may come from bandits or armed bands, particularly where
refugees are located in remote areas.1382 Armed combatants, many of them
members of the National Liberation Forces, killed over 150 Congolese refugees
at a camp next to the Burundian capital; five years later, none of the attackers had
been held accountable.1383 Nigerian refugees in western Chad have suffered
suicide bombings claimed by Boko Haram,1384 and efforts to relocate those in
Cameroon away from the border were hampered by Nigerian insurgents.1385
The Ugandan rebel group “Lord’s Resistance Army” massacred Sudanese

1379
“In June 1995, the worst single cross-border attack took place at Guiglo, where 32 people
died . . . UNHCR appears to have made no effort to persuade the Ivorian authorities that
border settlements are unsafe for refugees, and apparently supports the policy that they
should not receive assistance outside the border zone d’accueil”: Lawyers’ Committee for
Human Rights, African Exodus (1995), at 75. Renewed fighting has since led to compar-
able concerns. “Liberian refugees are being indiscriminately associated with the armed
opposition in Côte d’Ivoire . . . They are being killed both by Ivorian security forces and
groups of civilians, some of them armed by the government”: Amnesty International,
“Côte d’Ivoire: Liberian Refugees at Imminent Risk,” Feb. 20, 2003.
1380
(1999) 50 JRS Dispatches (May 31, 1999).
1381
D. Farah, “For Refugees, Hazardous Haven in Guinea,” Washington Post, Nov. 6, 2000,
quoting Ibrahim Suri Jollah, who had lived at Kaliah II camp for three years.
1382
UNHCR, “Note on Certain Aspects of Violence Against Refugee Women,” UN Doc. A/
AC.96/822, Oct. 12, 1993, at 8.
1383
“Tutsis Massacred in Burundi Camp,” BBC, Aug. 14, 2004. On the fifth anniversary of the
Gatumba massacre, Human Rights Watch reported that “[t]he government has shown little
political will to hold accountable those alleged to have committed these crimes. The vast
majority of rebels and soldiers who were arrested at various times during the conflict –
including some suspected of murder – were released without trial by presidential decrees in
2006 and 2009 granting ‘provisional immunity’ to perpetrators of ‘political crimes.’
Burundian and UN representatives have been trying since March 2006 to agree on plans
first set forth by the Arusha Peace Accord in 2000 to establish the truth and reconciliation
commission and a special tribunal within the Burundian judicial system. Despite commit-
ments made to high-ranking UN officials . . . Burundian officials continue to reject the
UN’s call for an independent prosecutor for the tribunal”: Human Rights Watch, “Burundi:
Seek Justice for War Crimes Victims,” Aug. 13, 2009.
1384
“Suicide Bombers Kill at least 38 at Market and Refugee Camp in Chad,” New York Times,
Oct. 10, 2015.
1385
“Cross-Border Raids Hinder Relocation of Nigerian Refugees in Cameroon,” UNHCR,
Nov. 4, 2014.

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 4.3 p hysical s ecurity 561

refugees in northern Uganda.1386 Bandits attacked Burundian refugees at the

remote Mtabila refugee camp in Tanzania. They targeted both the Tanzanian
police working there and the refugees responsible for security, as well as their
family members.1387 The Mukhtar Army was responsible for the deaths of
twenty-three Iranians when it fired rockets at the Camp Liberty facilities near
Baghdad in 2015.1388A far-right mob in Greece hurled rocks and Molotov
cocktails at a camp in Chios, forcing dozens to flee.1389
While refugee camps, particularly those located near insecure borders,
present the greatest risk to the physical security of refugees, even refugees
allowed to move freely within asylum countries often remain at risk of physical
attack. Refugees in Russia, particularly those with non-Slavic features, have
been regularly beaten by police and neo-Nazis; rather than seeking to hold the
attackers accountable, authorities have usually either failed to prosecute or
sought minimal sentences.1390 There have been numerous reports of

1386
“At Achol Pii, home to more than 16,000 people fleeing the war zones of southern Sudan,
refugees were shot at point-blank range or cruelly hacked to death with machetes. Food
was looted and more than 300 huts burned down”: Amnesty International, “Sudan:
Amnesty International Condemns ‘Callous and Calculated’ Killings by Ugandan
Rebels,” July 18, 1996. Such attacks continued for years; for example “[i]n early July
[2003], LRA forces attacked a refugee camp in Adjumani, killing six refugees, and causing
over half of the twelve thousand inhabitants to flee. On August 5, an LRA raid on the
Achol Pii settlement in Pader district resulted in the deaths of about sixty people. The
rebels looted all the recently-delivered food, and burned what they could not carry. They
forced the camp’s twenty-four thousand refugees and relief staff to flee the site”: Human
Rights Watch, World Report 2003 (2003), at 89. More generally, the continued brutality of
the group led UN Secretary-General Ban Ki-moon to declare in 2013 that it was respon-
sible for the deaths of over 100,000 during its twenty-five-year reign: “LRA Has Killed
over 100,000,” New Vision, May 21, 2013.
1387
“Curfew Continues at Refugee Camps,” UN Integrated Regional Information Networks,
Apr. 3, 2003. Similar concerns arose at refugee camps in the Kakuma area: (2003) 127 JRS
Dispatches (Feb. 28, 2003).
1388
O. Al-Jawoshy and M. R. Gordon, “Iran-Backed Militia Claims Responsibility for Attack
on Iraqi Camp,” New York Times, Oct. 30, 2015; see also K. Schwartz, “Rocket Attack Kills
20 Iranian Refugees in Iraqi Camp,” Voice of America, Oct. 30, 2015.
1389
H. Smith and P. Kingsley, “Far-Right Group Attacks Refugee Camp on Greek Island of
Chios,” Guardian, Nov. 18, 2016.
1390
“Xenophobia and racism in Russia are increasing rapidly. In many cases, the police are
more sympathetic to extremist youth groups (skinheads) which commit crimes against
Chechens or Africans than to the victims. Often, the authorities do not want to prosecute
these cases at all. If a case does go to court, the authorities do their best to get reduced
sentences and decrease the time of imprisonment or the level of punishment”: ACCORD/
UNHCR, “Eighth European Country of Origin Information Seminar, Vienna, 28–29 June
2002 – Final Report: Russian Federation” (2002), at 216. Nor have such attacks abated in
recent years; instead, those who report their attackers to police often face arrest them-
selves for lacking proper documentation or are otherwise met with indifference: A.
Simmons, “African Migrants in Russia Describe ‘Hell on Earth,’” Los Angeles Times,
Nov. 2, 2014.

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generalized violence against refugees who are members of sexual minorities in

Mexico, with some hiding themselves to avoid detection by the Central
American gangs from which they fled.1391 Moroccan police have beaten sub-
Saharan refugees and other non-citizens and set their tents on fire during raids
on informal communities.1392 Following a bus bombing later attributed to Al-
Shabaab, Kenyan authorities commenced a campaign of rape against Somali
refugees residing in Nairobi.1393 Disregarding (and sometimes destroying)
official UNHCR refugee status documentation, the police then held refugee
women and men until they paid bribes to secure their release.1394
Even when authorities are not directly responsible for the violence faced by
refugees, they frequently create the conditions which make refugees vulnerable
to attack. For example, to avoid detection by Chinese authorities intent on
removing them without consideration of their protection needs, North Korean
refugees are often forced to secure private protection by becoming slave laborers
or prostitutes.1395 Similarly, Australian authorities cut off food and electricity to
force refugees on Manus Island’s prison center to move to alternative facilities at
Lorengau, even though it was well known that anti-foreigner sentiment in the
area was high and that refugees had been attacked there before.1396 Because of
France’s demolition of the camps at Calais and the confiscation of tents and
sleeping bags, those who remain are left with few options but to sleep in the
woods or in unsafe shelters where they are vulnerable to the cold and to
violence.1397 In March 2015, South African Zulu King Goodwill Zwelithini
made a speech likening foreign nationals to “head lice” and “ticks,”1398 leading
1391
Amnesty International, “No Safe Place: Salvadorans, Guatemalans, and Hondurans
Seeking Asylum in Mexico based on their Sexual Orientation and/or Gender Identity,”
Nov. 2017, at 20–21.
1392
O. Anyadike, “Morocco: The Forgotten Frontline of the Migrant Crisis,” IRIN News, July 29,
2015.
1393
Human Rights Watch, “‘You are All Terrorists’: Kenyan Police Abuse of Refugees in
Nairobi,” May 2013, at 18–23.
1394
Ibid. at 28–32.
1395
“There are between 10,000 and 300,000 refugees hiding in China, and monitors for
Human Rights Watch found those they spoke to were resigned to a sub-human existence
in China. Many fear they will be captured and sent home to serve a life sentence in one of
North Korea’s notorious prison camps, where inmates are reportedly experimented on
with chemicals, starved or shot”: J. Palmer, “Starving Refugees Sold as Sex Slaves to
Chinese Men,” Independent, Nov. 19, 2002, at 13.
1396
B. Doherty, “Manus Detention Centre Cleared of all Refugees and Asylum Seekers,”
Guardian, Nov. 24, 2017.
1397
M. Bulman, “Police Brutality and Rape: The Terrifying Plight of Women and Girls in
Calais,” Nov. 12, 2017; see also “Calais: Hundreds of Migrants Remain a Year after Razing
of Camp,” Guardian, Oct. 22, 2017.
1398
E. Gatten, “South Africa Violence: Zulu King Denies Inciting Racist Attacks and Appeals for
Calm,” Independent, Apr. 20, 2015; see also O. Quist-Arcton, “South Africa’s Xenophobic
Attacks ‘Vile,’ says Zulu King Accused of Inciting them,” National Public Radio, Apr. 26,
2015.

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 4.3 p h y s i c a l se c u r i t y 563

to a wave of attacks against refugees living in Durban.1399 Statements by Israeli

Prime Minister Benjamin Netanyahu and other officials – that “illegal infiltrators
[are] flooding the country” and that “the Sudanese are a cancer in our body” –
sparked similar attacks in 2012.1400
Increasingly, anti-refugee vigilantes in asylum countries have engaged in
attacks on refugees. Syrian refugees have been the objects of “migrant hunting”
in Bulgaria, with self-described “patriots” assaulting them with machetes and
guns.1401 Greek “citizens’ groups” have perpetrated assaults against foreigners
that include beatings with clubs or glass bottles, stabbings, and general cam-
paigns of intimidation.1402 Those who complained to the police were asked for
their immigration paperwork and sometimes jailed; in other instances, victims
could not file a complaint without first paying a €100 fee.1403
Finally, physical abuse is at times employed as part of a strategy to encour-
age refugees “voluntarily” to repatriate. Rohingya refugees were coerced to
return to Burma by physical and sexual abuse at the hands of the Bangladeshi
military and paramilitary forces in charge of reception camps.1404 Kenya
forcibly recruited hundreds of Somali refugees, including children, to fight
Al-Shabaab in their country of origin;1405 as part of a campaign to close the
camps, Kenya later ordered the Red Cross to suspend its services.1406 Though
1399
D. Mavhinga, “Dispatches: Xenophobic Violence Rages in Durban, South Africa,” Apr.
14, 2015.
1400
H. Sherwood, “Israelis Attack African Migrants during Protest against Refugees,”
Guardian, May 24, 2012.
1401
I. Mihailova, “Bulgaria: With Quads and Machetes Hunting for Migrants, Irregular
Militia Patrol the Borders,” Servizio Informazione Religiosa, Apr. 22, 2016; M. Bishop,
“Bulgarian Vigilantes Patrol Turkey Border to Keep Migrants Out,” NBC News, Mar. 10,
2017.
1402
Human Rights Watch, “Hate on the Streets: Xenophobic Violence in Greece,” July 2012,
at 4, 6–7, 10.
1403
Ibid. at 78–87.
1404
Human Rights Watch, Human Rights Watch Global Report on Women’s Human Rights
(1995), at 115–118. “[O]n July 20 [1997], the Bangladeshi security forces forcibly returned
187 refugees from Nayapara camp across the Naaf River to Burma. Apparently no one
volunteered for repatriation, so the authorities picked mostly women and children to be
sent back”: Amnesty International, “Rohingyas: The Search for Safety,” Doc. ASA/13/07/97
(Sept. 1, 1997).
1405
“Somali Refugees Recruited to Fight Islamists,” Washington Post, Apr. 6, 2010. According to a
Human Rights Watch report, “hundreds of young men and boys from the Dadaab refugee
camps have been secretly recruited for the force, lured with false promises of lavish pay and
claims of backing from the United Nations and the United States. By the time the refugees
learn their pay will be a fraction of what they were promised, and that they will be hastily
trained for frontline combat, their cell phones and identity papers have been confiscated”:
C. Albin-Lackey, “Kenya Recruits Somali Refugees to Fight Islamists Back Home in Somalia,”
Nov. 10, 2009.
1406
“On March 17, 2011, Kenyan authorities forced the Kenya Red Cross to stop providing
services at a temporary refugee camp in Mandera, in northeast Kenya, which was housing
13,000 people, many of them Somalis who had recently fled fighting across the border in

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not returning refugees directly to their country of origin, Iran’s promises of

citizenship and financial incentives to those Afghans who would agree to fight
in Syria (and threats of deportation to those who would refuse) confirm a
“creative” approach to securing the departure of unwelcome refugees.1407
Civil and Political Covenant, Art. 6(1)
Every human being has the inherent right to life. This right shall be
protected by law. No one shall be arbitrarily deprived of his life.
Civil and Political Covenant, Art. 7
No one shall be subjected to torture or to cruel, inhuman or
degrading treatment or punishment . . .
Civil and Political Covenant, Art. 9(1)
Everyone has the right to liberty and security of person . . .
Even though physical security is clearly fundamental to any notion of
refugee protection, the Refugee Convention is silent on this issue. At one
point, Belgium and the United States tabled a proposal that would have
required states to grant refugees arriving without pre-authorization “treatment
compatible, from both the moral and material view, with human dignity.”1408
The Belgian co-sponsor explained that this clause would “grant the refugee the
means of livelihood and . . . prevent his ill-treatment.”1409 This language was
not approved on the grounds that it was “too ambitious,”1410 the drafters
opting instead to define with greater precision precisely which rights refugees
would receive. No right to physical security was proposed or adopted.
Mtango suggests that this omission may follow from the primary concern of
the drafters to ensure the economic and social well-being of refugees, the
assumption being that physical safety would follow from the enforcement of
norms derived from the international law of armed conflict and national
asylum laws.1411 An alternative explanation is that refugee law, like the
Bula Hawo. District authorities, who had given the Red Cross permission to establish the
camp, abruptly changed course, ordering the Red Cross to stop providing services and
close the camp. That evening, according to several organizations working in Mandera,
government officials accompanied by armed Kenyan security forces intimidated camp
residents, telling them to leave the camp and return to Somalia by noon the next day:”
Human Rights Watch, “Kenya: Stop Deporting Somalis Fleeing Conflict,” March 31,
2011.
1407
A. Latifi, “How Iran Recruited Afghan Refugees to Fight Assad’s War,” New York Times,
June 30, 2017. Other sources report that such incentives as “promises of Iranian citizen-
ship and improved living standards for their families” are often offered in exchange for
military service: “Iran Deported Nearly 130,000 Afghan Refugees in 2017,” MSNBC
International, May 22, 2017.
1408
UN Doc. E/AC.32/L.25, Feb. 2, 1950, at Art. 3(1).
1409
Statement of Mr. Cuvelier of Belgium, UN Doc. E/AC.32/SR.22, Feb. 2, 1950, at 24.
1410
Statement of the Chairman, Mr. Chance of Canada, ibid. at 25.
1411
Mtango, “Armed Attacks”, at 97.

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 4.3 p h y s i c a l se c u r i t y 565

international human rights standards being contemporaneously developed,

reflects a masculinist assumption that protection from physical attack need
not be codified as a human right. Because the standards of both refugee law and
international human rights law were nearly exclusively drafted by men, and
because men presumed themselves to be independently able to ensure their
own physical security (except, for example, during a war or while incarcer-
ated), there was no need to draft a general right to physical security.1412
Whatever the historical reason, we are today required to ground a right to
physical security for refugees not in the Refugee Convention itself, but instead
in what has been described as “a criss-cross of rules which have some bearing
on the subject.”1413 For example, child refugees may rely on Arts. 19, 20, 22, 34,
35, 36, and 37 of the Convention on the Rights of the Child.1414 Refugees who
are threatened by armed conflict may invoke the protections of the Geneva
Conventions on the Law of Armed Conflict and their Protocols, in particular
Common Article 3, which prohibits acts of violence directed against persons
not taking active part in hostilities.1415 Those for whom the risk to physical
security rises to the level of torture or cruel, inhuman or degrading treatment
may invoke the duties under Arts. 2 and 16 of the Torture Convention.1416

1412
See generally H. Charlesworth and C. Chinkin, Boundaries of International Law: A
Feminist Analysis (2000), at 280–287; V. Peterson, “Security and Sovereign States:
What is at Stake in Taking Feminism Seriously?,” in V. Peterson ed., Gendered States:
Feminist (Re)visions of International Relations Theory (1992), at 31. Belated recognition
of the importance of the right to physical security, including in a gender-specific context,
has been forthcoming: see e.g. UN Human Rights Council, Res. 7/24, “Elimination of
violence against women,” Mar. 28, 2008; and UN Human Rights Council, Res. 32/2,
“Protection against violence and discrimination based on sexual orientation and gender
identity,” July 15, 2016.
1413
M. Othman-Chande, “International Law and Armed Attacks in Refugee Camps,” [1990]
Nordic Journal of International Law 153, at 153.
1414
These provisions address protection from physical or mental violence (Art. 19); special
protection for children deprived of their family (Art. 20); special protection for children
seeking refugee status (Art. 22); protection from sexual exploitation (Art. 34); protection
from abduction or trafficking (Art. 35); protection against any form of exploitation (Art.
36); and protection against cruel, inhuman, or degrading treatment (Art. 37): Rights of
the Child Convention.
1415
“In the case of armed conflict not of an international character occurring in the territory
of one of the High Contracting Parties, each Party to the conflict shall be bound to apply,
at a minimum, the following provisions: (1) Persons taking no active part in the hostilities
. . . shall in all circumstances be treated humanely, without any adverse distinction,
founded on race, colour, religion or faith, sex, birth or wealth, or any other similar
criteria”: Geneva Convention relative to the Protection of Civilian Persons in Time of
War, 75 UNTS 287 (UNTS 973), done Aug. 12, 1949, entered into force Oct. 21, 1950, at
Art. 3. See Mtango, “Armed Attacks,” at 103–106.
1416
“Each State Party shall take effective legislative, administrative, judicial or other measures
to prevent acts of torture in any territory under its jurisdiction”: Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1465 UNTS

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But unless a refugee is able to invoke a specialized obligation of this kind, he

or she must rely on the guarantee set by Art. 7(1) of the Refugee Convention,
which confirms that refugees are to enjoy at least the same treatment as is
afforded aliens in general – most importantly, the guarantees of physical
security set by the Human Rights Covenants.1417 The Human Rights
Committee has made clear that the benefit of Arts. 6, 7, and 9 of the Civil
and Political Covenant may be directly invoked by non-citizens under the
effective jurisdiction of a state party.1418

4.3.1 Right to Life

The right to life is defined by Art. 6 of the Civil and Political Covenant to be an
“inherent right,” meaning that “one’s right to life cannot be taken away by the
state or waived, surrendered or renounced by [the individual concerned], since

85 (UNTS 24841), adopted Dec. 10, 1984, entered into force June 26, 1987 (Torture
Convention), at Art. 2. The duty under Art. 16 extends also to the prevention of “acts of
cruel, inhuman, or degrading treatment or punishment which do not amount to torture,”
though only if such acts “are committed by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an official capacity”: ibid. at Art.
16(1). The Committee Against Torture has specifically concluded that “asylum seekers
[and] refugees” are entitled to claim protection under the treaty: Committee Against
Torture, “General Comment No. 2: Implementation of Article 2 by States Parties,” UN
Doc. CAT/C/GC/2, Jan. 24, 2008, at [21].
1417
“In general, the rights set forth in the Covenant apply to everyone, irrespective of
reciprocity, and irrespective of his or her nationality or statelessness. Thus, the general
rule is that each one of the rights of the Covenant must be guaranteed without discrim-
ination between citizens and aliens”: UN Human Rights Committee, “General Comment
No. 15: The Position of Aliens under the Covenant” (1986), UN Doc. HRI/GEN/1/Rev.7,
May 12, 2004, at [1]–[2]. More specifically, state parties are required to ensure that the
protection of the Covenant is “available to all individuals, regardless of nationality or
statelessness, such as asylum-seekers [and] refugees”: UN Human Rights Committee,
“General Comment No. 31: The Nature of the General Legal Obligation Imposed on
States Parties to the Covenant” (2004), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at
[10]. Art. 9’s guarantee of security of person has been expressly acknowledged to apply to
“aliens, refugees and asylum seekers”: UN Human Rights Committee, “General
Comment No. 35: Article 9 (Liberty and Security of Person),” UN Doc. CCPR/C/GC/
35, Dec. 16, 2014, at [3]. See generally Chapter 1.5.4.
1418
“Aliens thus have an inherent right to life, protected by law, and may not be arbitrarily
deprived of life. They must not be subjected to torture or to cruel, inhuman or degrading
treatment or punishment . . . Aliens have the full right to liberty and security of the
person”: UN Human Rights Committee, “General Comment No. 15: The Position of
Aliens under the Covenant” (1986), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [7].
State parties are moreover “obliged not to hinder access to the [UN Human Rights]
Committee and to prevent any retaliatory measures against any person who has
addressed a communication to the Committee”: UN Human Rights Committee,
“General Comment No. 33: The Obligations of States Parties under the Optional
Protocol to the International Covenant on Civil and Political Rights,” UN Doc. CCPR/
C/GC/33, Nov. 5, 2008, at [4].

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 4.3 ph y s i c a l se c u r i t y 567

a human being cannot be divested, nor can he divest himself, of his human-
ity.”1419 The right to life has been said by the International Court of Justice to
be part of “the irreducible core of human rights,”1420 and by the Human Rights
Committee to be “the supreme right . . . [and] the prerequisite for the enjoy-
ment of all other human rights.”1421 The fundamental nature of this right is
echoed at the regional level, with the African Commission identifying the right
to life as the “fulcrum of all other rights,”1422 and the Inter-American Court
referring to it as “the essential presumption for the exercise of . . . other
rights.”1423
At its core, the right to life stipulates that “[n]o one shall be arbitrarily
deprived of his life.”1424 This duty prohibits acts of intentional killing by state
authorities under other than the strictest controls, and in carefully limited
circumstances required by law. As the Human Rights Committee has affirmed,
States parties are expected to take all necessary measures intended to
prevent arbitrary deprivations of life by their law enforcement officials,
including soldiers charged with law enforcement missions. These meas-
ures include appropriate legislation controlling the use of lethal force by
law enforcement officials [and] procedures designed to ensure that law
enforcement actions are adequately planned in a manner consistent with
the need to minimize the risk they pose to human life.1425

The gunning down of Somali refugees off the coast of Yemen,1426 the killing
of Syrian refugees seeking to enter Turkey by that country’s border
guards,1427 the firing of rockets at a refugee camp in Iraq by an Iranian-
backed militia,1428 and the Sudanese bombing of refugees in the Yida camp in
1419
N. Jayawickrama, The Judicial Application of Human Rights Law (2017) (Jayawickrama,
Judicial Application), at 226.
1420
Legality of the Threat or Use of Nuclear Weapons, [1996] ICJ Rep 226, at 506, per Judge
Weeramantry.
1421
UN Human Rights Committee, “General Comment No. 36 (2018) on Article 6 of the
International Covenant on Civil and Political Rights, on the Right to Life,” UN Doc.
CCPR/C/GC/36, adopted Oct. 30, 2018, at [2].
1422
African Commission on Human and Peoples’ Rights, “General Comment No. 3 on the
African Charter on Human and Peoples’ Rights: The Right to Life (Article 4),” adopted
during the 57th Ordinary Session, Nov. 2015, at [1].
1423
Santo Domingo Massacre v. Colombia, Ser. C No. 259 (IACtHR, Nov. 30, 2012),
at [190].
1424
Civil and Political Covenant, at Art. 6(1). While “[t]here is, to date, no standardized
interpretation of the meaning of ‘arbitrary,’” core components can be identified: “Report
of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions on a
Gender-Sensitive Approach to Arbitrary Killings,” UN Doc. A/HRC/35/23, June 6,
2017, at [27].
1425
UN Human Rights Committee, “General Comment No. 36 (2018) on Article 6 of the
International Covenant on Civil and Political Rights, on the Right to Life,” UN Doc.
CCPR/C/GC/36, adopted Oct. 30, 2018, at [13].
1426
See text at note 1333. 1427 See text at note 1348. 1428 See text at note 1388.

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South Sudan1429 were all clearly violations of this most fundamental of all
human rights.1430 Liability also inheres where a government puts agents in a
position of control over refugees, and then turns a blind eye to murders
committed by those to whom it has entrusted authority. Because a govern-
ment may not do indirectly what Art. 6 prohibits it from doing directly, the
failure to take action in the face of the killing of Iranian refugees by security
forces in Iraq’s Camp Ashraf1431 and the repeated shootings with apparent
impunity by DRC soldiers of Rwandan and Burundian refugees engaged in
protests1432 amounted to unlawful deprivations of life.
There is, however, no need for evidence of “deliberate intent” to kill on the
part of the state or its agents.1433 Rather, the clear disregard for the life of
refugees evident in the way in which Lebanese security forces conducted anti-
terrorist security sweeps,1434 the Iranian combination of bribes and threats to
induce Afghan refugees to risk their lives fighting in Syria,1435 or the failure by
the United States firmly to end various enforcement tactics against refugees
and others, including sabotaging humanitarian supplies and allowing border
agents to engage in violent chases likely to inflict injury or death1436 all showed
sufficient disregard for the lives of refugees to infringe Art. 6. Nor does liability
follow only when state agents are involved. By entrusting the operation of some
of its camps for Cambodian refugees to the notorious Khmer Rouge, Thailand
bears responsibility for the killings of refugees inflicted there by the Khmer
Rouge.1437 Much the same disregard for the lives of refugees was apparent in
the decision by Kenya to allow recruiters into Dadaab refugee camp for the
purpose of luring inadequately trained young men back into frontline combat
against Al-Shabaab.1438 Indeed, the Thai and Kenyan examples are especially
grave breaches of Art. 6 given that there is a “heightened duty” of care where a

1429
See text at note 1376.
1430
“The Human Rights Committee has required states to take specific and effective measures
to prevent the disappearance of individuals. After a person is reported to have disap-
peared, the state continues to have an obligation under ICCPR 2(3) to conduct diligent
and serious enquiries to determine what has happened to that person, what his present
status is as a human being and whether he is dead or alive: Jayawickrama, Judicial
Application, at 257.
1431
See text at note 1351. 1432 See text at note 1354.
1433
“Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions on
a Gender-Sensitive Approach to Arbitrary Killings,” UN Doc. A/HRC/35/23, June 6,
2017, at [34]. Indeed, “[l]oss of life occurring in custody, in unnatural circumstances,
creates a presumption of arbitrary deprivation of life by State authorities, which can only
be rebutted on the basis of a proper investigation which establishes the State’s compliance
with its obligations under article 6”: UN Human Rights Committee, “General Comment
No. 36 (2018) on Article 6 of the International Covenant on Civil and Political Rights, on
the Right to Life,” UN Doc. CCPR/C/GC/36, adopted Oct. 30, 2018, at [29].
1434
See text at note 1355. 1435 See text at note 1407. 1436 See text at notes 1345–1346.
1437
See text at note 1352. 1438 See text at note 1405.

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 4. 3 ph y sic al se c ur it y 569

government deprives individuals of their liberty, including, for example, where

they are assigned to “refugee camps.”1439
More generally, the right to life imposes an obligation on states to take
measures to prevent and punish arbitrary deprivation of life.1440 In the words
of the Inter-American Court:
The State has a legal duty to take reasonable steps to prevent human rights
violations and to use measures at its disposal to carry out a serious
investigation of violations committed within its jurisdiction, to identify
those responsible, to impose the appropriate punishment and to ensure
the victim adequate compensation.1441

As such, even where killings are not the result of direct or indirect official acts,
they nonetheless infringe Art. 6 if the state fails to take appropriate steps to
protect persons whose lives are known to be at risk from non-state actors.1442
This is because there is “a due diligence obligation to undertake reasonable
positive measures, which do not impose on them disproportionate burdens, in
response to reasonably foreseeable threats to life originating from private
persons and entities, whose conduct is not attributable to the State.”1443
When Uganda left Sudanese refugees exposed to killings by the Lord’s
Resistance Army rebels whose objectives were clear,1444 and when no serious
1439
“A heightened duty to protect the right to life . . . applies to individuals quartered in . . .
refugee camps”: UN Human Rights Committee, “General Comment No. 36 (2018) on
Article 6 of the International Covenant on Civil and Political Rights, on the Right to Life,”
UN Doc. CCPR/C/GC/36, adopted Oct. 30, 2018, at [25].
1440
Indeed, “States parties may be in violation of article 6 even if such threats . . . do not result
in loss of life”: ibid. at [7].
1441
Velásquez Rodríguez v. Honduras, Ser. C No. 4 (IACtHR, July 29, 1988), at [174]; affirmed
in Santo Domingo Massacre v. Colombia, Ser. C No. 259 (IACtHR, Nov. 30, 2012), at
[189] in the context of the right to life. On the duty to investigate, see Office of the United
Nations High Commissioner for Human Rights, “Minnesota Protocol on the investiga-
tion of potentially unlawful death” (2017), at [15]–[21].
1442
“It is the duty of the state to take appropriate steps to safeguard the lives of those within its
jurisdiction. This requires the state to establish a framework of laws containing procedures,
penalties and means of enforcement which will, to the extent reasonably practicable, deter
the commission of offences against the person and thereby protect life. The duty to protect
the right to life also implies, in certain circumstances, a positive obligation to take preventive
operational measures to protect an individual or individuals whose life is at risk from the
criminal acts of another individual”: Jayawickrama, Judicial Application, at 228–229.
1443
UN Human Rights Committee, “General Comment No. 36 (2018) on Article 6 of the
International Covenant on Civil and Political Rights, on the Right to Life,” UN Doc.
CCPR/C/GC/36, adopted Oct. 30, 2018, at [21]. This duty is violated “whenever States fail
to act with due diligence, which requires an assessment of . . . how much the State knew or
should have known; . . . the risks or likelihood of harm; and . . . the seriousness of the
harm”: “Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary
Executions on a Gender-Sensitive Approach to Arbitrary Killings,” UN Doc. A/HRC/
35/23, June 6, 2017, at [58].
1444
See text at note 1386.

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 570 4 ri g ht s of re f u g e e s p hy s i c a l l y p r e s e n t

effort was made by Zaïre (now the Democratic Republic of Congo) to ensure
that violent genocidaires and weapons were kept out of the Rwandan refugee
camps,1445 the resultant slaughter inside the camps was in breach of the duty to
ensure the right to life. In contrast, Art. 6 was not disregarded when Chad
proved unable to shelter Nigerian refugees from attacks by Boko Haram
despite good faith efforts to relocate the refugees to safe areas away from the
border as well as to Cameroon.1446
As the last example suggests, the presence of refugees in areas adjacent to the
frontier with their country of origin frequently exposes them to cross-border raids
and killings by their enemies.1447 The refusal of Côte d’Ivoire to relocate refugees
away from the Liberian border1448 and Guinea’s comparable determination to
keep refugees from Sierra Leone near the border with that country1449 – in each
case precipitating cross-border armed attacks on refugees – were both contrary to
the affirmative duty to protect life from foreseeable threats under Art. 6. UNHCR’s
Executive Committee has affirmed the duty of governments to mitigate the
possibility of non-combatant refugees becoming the objects of armed attack,1450
as Cameroon attempted in good faith to do despite strong resistance from Nigerian
insurgents.1451 Protection of physical security thus normally entails ensuring that
refugees not be required to remain in an area which may be affected by the conflict
they have fled, or by any other conflict in the country of asylum.1452
The state of refuge is also liable under Art. 6 where it fails to establish a
“protective legal framework”1453 or “to investigate and prosecute”1454 either

1445
See text at note 1363. 1446 See text at notes 1384–1385.
1447
The prohibition of arbitrary deprivation of life continues during armed conflict: see e.g.
African Commission on Human and Peoples’ Rights, “General Comment No. 3 on the
African Charter on Human and Peoples’ Rights: The Right to Life (Article 4),” adopted
during the 57th Ordinary Session, Nov. 2015, at [32]. In that context, the meaning of
“arbitrariness” should be interpreted to take account of relevant norms of international
humanitarian law: V. Todeschini, “The Relationship between International Humanitarian
Law and Human Rights Law in the African Commission’s General Comment on the Right to
Life,” EJIL: Talk!, June 7, 2016, at 3.
1448
See text at note 1379. 1449 See text at notes 1380–1381.
1450
UNHCR Executive Committee Conclusion No. 48, “Military or Armed Attacks on Refugee
Camps and Settlements” (1987). See also UNHCR Executive Committee Conclusions Nos.
27, “Military Attacks on Refugee Camps and Settlements in Southern Africa and Elsewhere”
(1982), 32, “Military Attacks on Refugee Camps and Settlements in Southern Africa and
Elsewhere” (1983), and 45, “Military and Armed Attacks on Refugee Camps and Settlements”
(1986).
1451
See text at note 1446.
1452
The duty to assist refugees is not tantamount to a right forcibly to relocate them away
from border areas. But see AU Refugee Convention, at Art. II(6), discussed at Chapter
1.5.3 at notes 272–273.
1453
UN Human Rights Committee, “General Comment No. 36 (2018) on Article 6 of the
International Covenant on Civil and Political Rights, on the Right to Life,” UN Doc.
CCPR/C/GC/36, adopted Oct. 30, 2018, at [20].
1454
Ibid. at [27].

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 4.3 p hysical security 571

unofficial killings or disappearances in territory under its jurisdiction.1455

Malaysia’s delay in launching a credible investigation after discovering mass
graves containing the bodies of refugees and others smuggled into their terri-
tory1456 and the failure of Burundi to investigate and prosecute the killing of
over 150 Congolese refugees1457 thus violated Art. 6.
The right to life is not, however, infringed simply because refugees die. Most
Southern African states, for example, allowed refugees from the South African
apartheid regime to move away from border areas, and took serious efforts to
protect them from killings at the hands of extremely sophisticated covert
incursions by the military and other agents of South Africa.1458 Nor is it
clear that Syria bears legal responsibility for the death of Iraqi refugees after
attacks by Islamic State militants.1459 The relevant inquiry is whether the
authorities of the asylum state intend to kill the refugee – either directly, or
indirectly, as by starvation, or exposure to illness or violence – or whether they
show a lack of determination effectively to respond to known risks to life, or to
pursue and prosecute those responsible for risk to, or loss of, life.1460 Because
the right to life can be infringed by either act or omission, and because it
focuses broadly on whether death results from a situation characterized by
“elements of unlawfulness and injustice, as well as those of capriciousness and
unreasonableness,”1461 it is an important means of holding governments
accountable for intentional or foreseeable threats to the lives of refugees.

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

Many of the risks to the physical security of refugees, of course, fall short of a
risk to life. Art. 7 of the Civil and Political Covenant, however, prohibits also
actions which amount to torture, or to cruel, inhuman, or degrading
1455
In the broader context of migrant deaths, a UN special rapporteur opined that “[t]he
world-wide failures to investigate these deaths are themselves additional violations of the
right to life. This contributes to an international regime of impunity; deepens the
invisibility of the violations; hides their victims, and makes for ill-informed policy-
decisions related to migration which may result in even further deprivations of life”:
UN Human Rights Office of the High Commissioner, “UN Special Rapporteur Attacks
‘International Regime of Impunity’ over Migrant Deaths,” Oct. 27, 2017.
1456
See text at note 1340. Malaysia’s delay in investigating and prosecuting these deaths
contrasts markedly with the Thai response to comparable discoveries: See text at note
1341.
1457
See text at note 1383. 1458 See text at note 1378. 1459 See text at note 1375.
1460
“What is decisive is whether a violation . . . has occurred with the support or the
acquiescence of the government, or whether the State has allowed the act to take place
without taking measures to prevent it or to punish those responsible”: Velásquez
Rodríguez v. Honduras, Ser. C No. 4 (IACtHR, July 29, 1988), at [173].
1461
Schabas, Nowak’s CCPR Commentary, at 137, citing the Council of Europe’s invocation of
the comments of the Chilean representative to the Commission on Human Rights during
the drafting of the Civil and Political Covenant.

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 572 4 r i gh t s of ref ug ees physic ally present

treatment.1462 Like the guarantee of the right to life, Art. 7 not only prohibits
negative state conduct, but requires governments to take affirmative steps to
protect everyone under their authority from relevant risks.1463 Equally import-
ant, a state may never justify its failure to protect all persons from torture, or
from cruel, inhuman, or degrading treatment, on the grounds of an exceptional
or emergency situation:

The text of article 7 allows of no limitation . . . [E]ven in situations of

public emergency . . . no derogation from the provisions of article 7 is
allowed and its provisions must remain in force . . . [N]o justification or
extenuating circumstances may be invoked to excuse a violation of article 7
for any reasons, including those based on an order from a superior officer
or public authority.1464

The definition of “torture” is relatively demanding. An act may be described

as torture only if four criteria are satisfied.1465 First, the act in question must
result in severe physical or mental pain or suffering. Second, the act which
causes the pain or suffering must be intentional.1466 Third, there must be a

1462
The applicability of these protections to “asylum-seekers [and] refugees” was affirmed by
the Committee Against Torture: UN Committee Against Torture, “General Comment
No. 2: Implementation of Article 2 by States Parties,” UN Doc. CAT/C/GC/2, Jan. 24,
2008, at [21].
1463
“It is the duty of the State party to afford everyone protection through legislative and
other measures as may be necessary against the acts prohibited by article 7, whether
inflicted by people acting in their official capacity, outside their official capacity or in a
private capacity”: UN Human Rights Committee, “General Comment No. 20:
Prohibition of Torture, or Other Cruel, Inhuman or Degrading Treatment or
Punishment” (1992), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [2].
1464
Ibid. at [3].
1465
The UN Human Rights Committee, considering claims of torture under the Civil and
Political Covenant, “is guided by the definition of torture found in the Convention
against Torture”: Giri v. Nepal, HRC Comm. No. 1761/08, UN Doc. CCPR/C/101/D/
1761/2008, decided Mar. 24, 2011, at [7.5]. The definition of “torture” in the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1465
UNTS 85 (UNTS 24841), adopted Dec. 10, 1984, entered into force June 26, 1987
(Torture Convention), at Art. 1(1) is: “For the purposes of this Convention, the term
‘torture’ means any act by which severe pain or suffering, whether physical or mental, is
intentionally inflicted on a person for such purposes as obtaining from him or a third
person information or a confession, punishing him for an act he or a third person has
committed or is suspected of having committed, or intimidating or coercing him or a
third person, or for any reason based on discrimination of any kind, when such pain or
suffering is inflicted by or at the instigation of or with the consent or acquiescence of a
public official or other person acting in an official capacity. It does not include pain or
suffering arising only from, inherent in or incidental to lawful sanctions.”
1466
“Torture can never be inflicted by negligent or even reckless behaviour”: M. Nowak,
“Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment,” in
A. Clapham and P. Gaeta eds., The Oxford Handbook of International Law in Armed
Conflict 387 (2014) (Nowak, “Torture”), at 394.

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 4.3 p hysical s ecurity 573

specific motivation for the intentional infliction of harm, such as the extraction
of a confession, intimidation, punishment, or discrimination (but not includ-
ing lawful punishment). Fourth, the act must be committed by or under the
authority of a public official. By way of example, all of these criteria were met
when Kenyan authorities undertook a campaign of rape and kidnaping for
ransom of Somali refugee women living in Nairobi.1467 The suffering of rape
was severe, the rapes (and kidnapings) were intentionally inflicted by public
officials, and the goal was to punish and intimidate refugees falsely stigmatized
as Al-Shabaab terrorists. There was also torture when Egyptian and Sudanese
officials colluded with traffickers engaged in the brutalizing and killing of their
victims:1468 what might otherwise have been a purely private criminal act
became torture once “committed under the authority” of the police.1469
While refugees are sometimes the victims of torture, they more commonly
face the risk of treatment that is inhuman or cruel.1470 The prohibition of
“inhuman or cruel treatment or punishment” is treated as a unified con-
cept.1471 That is, a clear distinction is not generally drawn between actions
which are cruel, and those which are inhuman. In general, actions are
“inhuman or cruel” if they meet most, but not all, of the criteria for torture.1472

1467
See text at note 1393. 1468 See text at notes 1337–1339.
1469
“Since the failure of the State to exercise due diligence to intervene to stop, sanction and
provide remedies to victims of torture facilitates and enables non-State actors to commit
acts impermissible . . . with impunity, the State’s indifference or inaction provides a form
of encouragement and/or de facto permission”: UN Committee Against Torture,
“General Comment No. 2: Implementation of Article 2 by States Parties” (2008), UN
Doc. CAT/C/GC/2, Jan. 24, 2008, at [18].
1470
Importantly, “[s]ince all three types of ill treatment are absolutely prohibited, even in
times of war and emergency, there is no need to consider legal distinctions between
them”: Nowak, “Torture,” at 390. The only salient difference is that some specific duties
under the Torture Convention – including the duty of non-refoulement established by its
Art. 3 (see Chapter 4.1.6) – apply only where the risk is properly defined as amounting to
“torture”: ibid. at 391.
1471
The European Court of Human Rights seems, however, to see “inhuman” conduct as
largely premeditated and lengthy infliction of intense suffering. It has distinguished
“inhuman” conduct from “degrading” conduct on the basis that the latter is characterized
by its acute effect on human dignity, “arous[ing] feelings of fear, anguish, or inferiority
capable of breaking an individual’s moral and physical resistance”: MSS v. Belgium and
Greece, (2011) 53 EHRR 28 (ECtHR, Jan. 21, 2011), at [220]. See also Bouyid v. Belgium,
[2015] ECHR 819 (ECtHR [GC], Sept. 28, 2015), at [87].
1472
There is debate about whether the distinguishing feature of “torture” is the severity of the
pain inflicted or whether severe pain and suffering is required for both “torture” and
“cruel and inhuman” treatment, with the distinction focusing instead on for example
intentionality: Nowak, “Torture,” at 391. The UN Human Rights Committee has adopted
the latter view, finding that “the critical distinction between torture on the one hand, and
other cruel, inhuman or degrading treatment or punishment, on the other, will be the
presence or otherwise of a relevant purposive element”: Giri v. Nepal, HRC Comm. No.
1761/08, UN Doc. CCPR/C/101/D/1761/2008, decided Mar. 24, 2011, at [7.5].

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 574 4 ri g ht s o f re f u g e e s p hy s i c a l l y p r e s e n t

Thus, violent abuses committed by state officials even if not accompanied by

the specific intent required to establish torture – for example, the all-too-
frequent rapes by police or camp officials of refugee women – are appropriately
deemed to be forms of cruel and inhuman treatment. Similarly, the intentional
act of a public official intended to punish a refugee may not be “torture” if the
consequent harm does not rise to the level of “severe” pain or suffering. Lesser
pain or suffering, in the context of such an intentional, official, and punitive
action would, however, still amount to inhuman or cruel punishment.1473
Thus, for example, the prohibition of cruel and inhuman treatment was
breached when Moroccan police beat sub-Saharan refugees and set their
tents on fire during raids on informal communities1474 and when Malaysian
officials caned refugees for having arrived to seek protection.1475 And because
an action is no less official when implemented by private parties encouraged by
the state,1476 the unleashing of violent attacks when the South African Zulu
King likened foreign nationals to “head lice” and “ticks”1477 and after Israeli
Prime Minister Benjamin Netanyahu referred to Sudanese refugees as “illegal
infiltrators flooding this country”1478 also gave rise to a breach of the duty to
refrain from cruel and inhuman treatment or punishment.
A state may moreover be found to have engaged in cruel or inhuman
treatment where its officials fail to respond appropriately to known grave
risks.1479 For example, the Human Rights Committee found a breach of Art.
7 of the Covenant where Australia continued to detain an Iranian refugee
claimant even after it was clear that the prolonged detention would result in
irreversible psychiatric illness:

As to the author’s allegations that his first period of detention amounted to

a breach of article 7, the Committee notes that the psychiatric evidence

1473
“The distinction between torture and inhuman treatment is derived principally from a
difference in the intensity of the suffering inflicted”: Jayawickrama, Judicial Application,
at 296.
1474
See text at note 1392. 1475 See text at note 1350.
1476
“States bear international responsibility for the acts and omissions of their officials and
others, including . . . where the failure of the State to intervene encourages and enhances
the danger of privately inflicted harm”: UN Committee Against Torture, “General
Comment No. 2: Implementation of Article 2 by States Parties”(2008), UN Doc. CAT/
C/GC/2, Jan. 24, 2008, at [15].
1477
See text at note 1398. The king serves as constitutional monarch under the Traditional
Leadership Clause of the Constitution of South Africa; while required to act on the advice
of the provincial premier, there is no indication that the government reprimanded or
otherwise distanced itself from his remarks.
1478
See text at note 1400.
1479
“The obligation to prevent ill-treatment in practice overlaps with and is largely congruent
with the obligation to prevent torture”: UN Committee Against Torture, “General
Comment No. 2: Implementation of Article 2 by States Parties”(2008), UN Doc. CAT/
C/GC/2, Jan. 24, 2008, at [3].

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 4.3 p hysical s ecurity 575

emerging from examinations of the author over an extended period, which

was accepted by the State party’s courts and tribunals, was essentially
unanimous that the author’s psychiatric illness developed as a result of
the protracted period of immigration detention. The Committee notes
that the State party was aware, at least from August 1992 when he was
prescribed tranquillizers, of psychiatric difficulties the author faced.
Indeed, by August 1993, it was evident that there was a conflict between
the author’s continued detention and his sanity.
Despite increasingly serious assessments of the author’s conditions in
February and June 1994 (and a suicide attempt), it was only in August 1994
that the Minister exercised his exceptional power to release him from
immigration detention on medical grounds (while legally he remained in
detention). As subsequent events showed, by that point the author’s illness
had reached such a level of severity that irreversible consequences were to
follow. In the Committee’s view, the continued detention of the author
when the State party was aware of the author’s mental condition and failed
to take the steps necessary to ameliorate the author’s mental deterioration
constituted a violation of his rights under article 7 of the Covenant.1480

The known risk of serious harm at the heart of the notion of cruel and inhuman
treatment need not emanate from state officials themselves, so long as the official
actions contribute in a material way to the exposure to harm. Thus, Nepal’s refusal
to take measures to protect sexual minority refugees against the known risk of
violence at the hands of other refugees,1481 Russia’s refusal to prosecute or punish
those attacking non-Slavic refugees,1482 as well as Tanzania’s decision to require
refugees to live in the remote Mtabila camp where they could not be meaningfully
protected against banditry and other attacks1483 are all examples of cruel and
inhuman treatment. Similarly, China may be held liable for cruel and inhuman
treatment in view of its awareness that refusal to protect North Korean refugees
left them no option but to seek informal “protection” purchased by submission to
sexual or other exploitation.1484 It follows also that Chad1485 and Tanzania1486

1480
C v. Australia, HRC Comm. No. 900/1999, UN Doc. CCPR/C/76/D/900/1999, decided
Oct. 28, 2002, at [8.4]. Australia’s indefinite detention of refugees has been found to
breach Art. 7 of the Covenant on multiple occasions, the Human Rights Committee
taking the view that the existence of “health care and mental support services” cannot take
away from the “combination of the arbitrary character of the . . . detention, its protracted
and/or indefinite duration, the refusal to provide information and procedural rights to
the [refugees] and the difficult conditions of detention [which] are cumulatively inflicting
serious psychological harm upon them, and constitute treatment contrary to article 7 of
the Covenant”: FKAG et al. v. Australia, HRC Comm. No. 2094/2011, UN Doc. CCPR/C/
108/D/2094/2011, decided July 26, 2013, at [9.8]; see also MMM et al. v. Australia, HRC
Comm. No. 2136/2012, UN Doc. CCPR/C/108/D/2136/2012, decided July 25, 2013; and
FJ et al. v. Australia, HRC Comm. No. 2233/2013, UN Doc. CCPR/C/116/D/2233/2013,
decided Mar. 22, 2016.
1481
See text at note 1365. 1482 See text at note 1390. 1483 See text at note 1387.
1484
See text at note 1395. 1485 See text at note 1370. 1486 See text at note 1371.

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were responsible for the cruel and inhuman treatment of refugee women when
their camp officials refused to provide materials for cooking fires even after
learning of the rapes of women in the adjacent forests where they were compelled
to forage for wood. While there may have been no specific, invidious motivation
behind these governments’ actions, the failure to make alternative arrangements
for the provision of fuel exhibited a willful disregard for what authorities knew was
the exposure of refugee women to the severe pain and suffering of rape.
Importantly, the notion of inhuman conduct must take account of context.
In considering the refusal of UK authorities to provide income support to
refugee claimants who delayed in making their claims even as it refused them
the right to work, the House of Lords insisted that
this is not a country in which it is generally possible to live off the land, in
an indefinite state of rooflessness and cashlessness . . . It might be possible
to endure cashlessness for some time if one had a roof and basic meals and
hygiene facilities provided. But to have to endure the indefinite prospect of
both, unless one is in a place where it is both possible and legal to live off
the land, is in today’s society both inhuman and degrading.1487

On the facts of the case, and noting the explicitly punitive nature of the
government’s policy, the House of Lords determined that the case for inhuman
treatment had been made out:
It seems one thing to say . . . that within the Contracting States there are
unfortunately many homeless people and whether to provide funds for
them is a political, not judicial, issue; quite another for a comparatively
rich (not to say northerly) country like the UK to single out a particular
group to be left utterly destitute on the streets as a matter of policy . . .
[A]sylum seekers, it should be remembered, are exercising their vital rights
to claim refugee status and meantime are entitled to be here.1488

Beyond acts which are torture or cruel and inhuman, Art. 7 also prohibits
treatment or punishment which is “degrading.” As the European Court of
Human Rights opined, “degrading” treatment
humiliates or debases an individual showing a lack of respect for, or
diminishing, his or her human dignity or arouses feelings of fear, anguish
or inferiority capable of breaking an individual’s moral and physical
resistance.1489

In line with this understanding, the first type of act considered degrading is
conduct intended to humiliate the victim. Tactics such as insistence on forced
1487
R (Limbuela) v. Secretary of State for the Home Department, [2005] UKHL 66 (UK HL,
Nov. 3, 2005), at [78].
1488
Ibid. at [99]–[100].
1489
Pretty v. United Kingdom, (2002) 35 EHRR 1 (ECtHR, Apr. 29, 2002), at [52].

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 4.3 p hysical security 577

nudity or insulting the religion of a detainee are generally understood to fall

within this category.1490 When Hungarian border guards stripped arriving
refugees of their clothes and used dogs to chase them back across the border1491
and when Angolan security forces not only raped refugee women (cruel and
inhuman treatment), but did so in full view of their children and others,1492 the
clear intention to humiliate their victims required for degrading treatment was
thus established.1493 Indeed, the High Court of Ireland acknowledged that in
principle the exclusion of refugee claimants from the usual welfare system under
a refugee-specific “direct provision” system could amount to degrading treat-
ment if it were shown that such differentiation “either humiliates or debases
[refugees] in a manner which shows a lack of respect for human dignity, or that
direct provision arouses feelings of anguish or inferiority capable of breaking
their moral and physical resistance.”1494
Alternatively, treatment may be degrading because it shows an egregious
disregard for an individual’s humanity – for example, sexual harassment,
subjection to bad hygienic conditions, slapping, or hair pulling.1495 Thus, the
European Court of Human Rights has determined that “where overcrowding
reaches a certain level, the lack of space in an institution may constitute the key
factor to be taken into account . . . Extreme lack of space in prison cells weighs
heavily as an aspect to be taken into account for the purpose of establishing
whether the impugned detention conditions were ‘degrading.’”1496
Importantly, account must be taken of the potential for detention to exacerbate
pre-existing psychological or other vulnerabilities.1497
More generally, “any recourse to physical force which has not been made
strictly necessary by [the individual’s] own conduct diminishes human dig-
nity” and therefore is degrading treatment1498 – thus including, for example,
the robbing and beating of desperate refugees by Bulgarian border guards

1490
Nowak, “Torture,” at 392. 1491 See text at note 1349. 1492 See text at note 1358.
1493
Indeed, “[i]t may well suffice for the victim to be humiliated in his own eyes, even if not in
the eyes of others”: Khlaifia and Others v. Italy, Case No. 16483/12 (ECtHR [GC], Dec. 15,
2016), at [169].
1494
CA v. Minister for Justice and Equality, [2014] IEHC 532 (Ir. HC, Nov. 14, 2014), at [7.25].
There was determined, however, to be a “want of evidence” that this standard was met:
ibid. at [7.26].
1495
Nowak, “Torture,” at 392.
1496
Khlaifia and Others v. Italy, Case No. 16483/12 (ECtHR [GC], Dec. 15, 2016), at [164].
The Court noted as well “that other aspects of detention conditions had to be taken into
account in examining compliance . . . Those aspects include the possibility of using toilets
with respect for privacy, ventilation, access to natural air and light, quality of heating and
compliance with basic hygiene requirements”: ibid. at [167].
1497
R (S) v. Secretary of State for the Home Department, [2014] EWHC 50 (Eng. QBD, Admin.
Ct., Jan. 28, 2014), at [192]. See also R (Limbuela) v. Secretary of State for the Home
Department, [2005] UKHL 66 (UK HL, Nov. 3, 2005), at [8].
1498
Bouyid v. Belgium, [2015] ECHR 819 (ECtHR [GC], Sept. 28, 2015), at [88].

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before summarily ejecting them.1499 An act is also to be considered degrading

where it “drives [an individual] to act against his will or conscience.”1500 As
such, the demanding of sexual favors from refugees housed by Australia on
Nauru1501 and similar abuses by refugee relief workers in much of Western
Africa,1502 effectively forcing individuals to submit to sex as a condition of
access to basic necessities or other rights, are appropriately understood to be
forms of degrading treatment. When there is evidence of such conduct, states
have a duty to take decisive action as the European Union did when it
suspended funding to an aid agency pending an investigation of two employees
accused of sexual exploitation in Greek camps.1503 In contrast, the fact that the
sexual abuse of refugees by aid workers at Calais took place in an effective “legal
black hole”1504 bespeaks an unlawful failure by France to take action commen-
surate with a known risk of clearly degrading treatment.

4.3.3 Security of Person

The third article of the Civil and Political Covenant with a bearing on the
physical security of refugees is Art. 9(1). It provides that “[e]veryone has the
right to liberty and security of person.” While subsequent paragraphs of Art. 9
define the ways in which the right to “liberty” informs the treatment of
detained persons, Sieghart sensibly argued that independent meaning should
be given to the guarantee of “security of person,”1505 even though its content is
not textually elaborated. This approach conforms to the principle of treaty
interpretation requiring a good faith effort to give meaning to all parts of a
treaty as codified.1506
The drafting history confirms that these words are not mere surplusage.
Reference to “security of person” was added to the text of Art. 9(1) on the basis
of a British proposal to the eighth session of the Commission on Human
Rights,1507 apparently motivated by a desire to conform to the formulation
of the predecessor Art. 3 of the Universal Declaration of Human Rights.1508
During the drafting of Art. 3 of the Universal Declaration, a Cuban proposal

1499
See text at note 1344.
1500
Greek Case, [1969] Yearbook of the European Convention on Human Rights
(EComHR) 186.
1501
See text at notes 1356–1357. 1502 See text at note 1359.
1503
See text at notes 1360–1361. 1504 See text at note 1362.
1505
P. Sieghart, The International Law of Human Rights (1983), at 139.
1506
Vienna Convention, at Art. 31(1). See Chapter 2.1 at note 32.
1507
UN Doc. E/CN.4/L.137 (1952). A Polish proposal to reframe this guarantee (UN Doc. E/
CN.4/L.183) was adopted by a vote of 7–5 (5 abstentions): UN Doc. E/CN.4/SR.314, at 10.
See M. Bossuyt, Guide to the “Travaux Préparatoires” of the International Covenant on
Civil and Political Rights (1987), at 196–197.
1508
Schabas, Nowak’s CCPR Commentary, at 241. Art. 3 of the Universal Declaration of
Human Rights provides that: “[e]veryone has the right to life, liberty and security of

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 4.3 ph y s i c a l se c u r i t y 579

expressly to add a guarantee of physical integrity was turned down after

discussion suggesting that the right to “security of person” already encom-
passed this concern.1509 Specifically, Chairperson Eleanor Roosevelt concluded
that “the words ‘security of person’ had been chosen after lengthy discussion
because they were more comprehensive than any other expression. The French
representative had especially noted that they included the idea of physical
integrity.”1510
There is therefore a textual and historical basis to argue that state parties
have an independent duty under Art. 9(1) of the Civil and Political Covenant to
take affirmative measures to protect all persons under their authority1511 from
attacks that might lead to injury:
The right to security of persons protects individuals against intentional
infliction of bodily or mental injury, regardless of whether the victim is
detained or non-detained . . . [It] also obliges States parties to take appro-
priate measures in response to death threats against persons in the public
sphere, and more generally to protect individuals from foreseeable threats
to life or bodily integrity proceeding from any governmental or private
actors.1512

Thus, for example, the Human Rights Committee determined that Art. 9(1)
was infringed when the Colombian government failed to respond in a mean-
ingful way to death threats made against a teacher who was ultimately forced to
flee the country:
Although in the Covenant the only reference to the right to security of
person is to be found in article 9, there is no evidence that it was intended
to narrow the concept of the right to security only to situations of formal
deprivation of liberty . . . States are under an obligation to take reasonable
and appropriate measures to protect [persons under their jurisdiction]. An
interpretation of article 9 which would allow a State party to ignore threats
to the personal security of non-detained persons within its jurisdiction
would render totally ineffective the guarantees of the Covenant.1513

The failure of the Mexican government to respond to the abduction, murder,

and disappearance of refugees and other migrants transiting through Mexico –
person.” See also UN Human Rights Committee, “General Comment No. 35: Article 9
(Liberty and Security of Person)” (2014), UN Doc. CCPR/C/GC/35, Dec. 16, 2014, at [2].
1509
L. Rehof, “Article 3,” in A. Eide et al. eds., The Universal Declaration of Human Rights: A
Commentary 73 (1992) (Rehof, “Article 3”), at 77.
1510
UNGAOR (1948), Part I (Third Committee), at 189–190, cited in Rehof, “Article 3,” at 77.
1511
The duty has been specifically determined to apply to “aliens, refugees and asylum
seekers”: UN Human Rights Committee, “General Comment No. 35: Article 9 (Liberty
and Security of Person)” (2014), UN Doc. CCPR/C/GC/35, Dec. 16, 2014, at [3].
1512
Ibid. at [9].
1513
Delgado Paéz v. Colombia, HRC Comm. No. 195/1985, UN Doc. CCPR/C/39/D/195/
1985, decided July 12, 1990, at [5.5]–[5.6].

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rightly described by the Inter-American Commission on Human Rights as

“one of [the worst] human tragedies in the region”1514 – clearly breaches this
duty to take reasonable and appropriate protective measures. The refusal of
Greek police to take action despite clear evidence of stabbings and assaults on
refugees by vigilantes armed with clubs and glass bottles1515 unless first paid a
€100 fee similarly amounts to a refusal to honor that country’s duty to protect
persons under their jurisdiction from risk to physical integrity.
The duty to take “appropriate”1516 measures to guard against risks to the
physical security of refugees calls into question the general policy of closed
refugee camps, clearly proven to be breeding grounds for violence, in particular
against refugee women and children. Jordan’s confinement of refugees at the
Zaatari camp, triggering a “rapid escalation” in domestic violence,1517 makes
the point in a tragic way. The duty to avoid known risks to physical security is
also grounds for contesting the legality of the refusal of Greece to authorize
refugees to live outside the Chios camp, thereby making them easy targets for
the far-right mobs known to be intent on assaulting them there.1518
Conversely, Australia failed in its duty to ensure security of person by denying
refugees on Manus Island the possibility of remaining inside the camp where
they felt safe, forcing them instead to move to a part of the island where it was
well known that anti-foreigner sentiment was high and where refugees had
been previously attacked.1519 France’s demolition of the Calais camps, occu-
pied predominantly by Afghan refugees, effectively forced Afghan and Kurdish
refugees into shared facilities.1520 By not considering the risk of violence
inherent in forcing culturally dissonant groups into grossly overcrowded
conditions, the government failed to exercise the forward-looking vigilance
that Art. 9 requires.
The Human Rights Committee’s insistence on the importance of taking
“appropriate” steps to avert known risks to physical security moreover requires
real attention to the risks of vulnerable groups, including women – thereby
calling into question, for example, failures by Sweden and Germany to provide
gender-separated toilets and sleeping quarters in refugee shelters1521 and by
France to read the meaning of refugee women in its reception centers request-
ing diapers in order to avoid having to go to the toilet at night.1522 Mexico’s
unwillingness to assist gay refugees to avoid detection by the Central American
gangs from which they fled1523 also bespeaks a breach of the duty to ensure
security of person, contrasting markedly with the exemplary decision of

1514
See text at note 1334. 1515 See text at notes 1402–1403.
1516
UN Human Rights Committee, “General Comment No. 35: Article 9 (Liberty and
Security of Person)” (2014), UN Doc. CCPR/C/GC/35, Dec. 16, 2014, at [9].
1517
See text at note 1374. 1518 See text at note 1389. 1519 See text at note 1396.
1520
See text at notes 1364, 1397. 1521 See text at note 1368. 1522 See text at note 1369.
1523
See text at note 1391.

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 4.4 n ecessities of life 581

Germany and Italy to open shelters specifically designed to meet the needs and
concerns of sexual minority refugees.1524
Art. 9(1) would not, however, be a sufficient source of protection for the
Vietnamese asylum-seekers attacked by Thai pirates.1525 While Art. 9(1) would
require Thailand to protect refugees passing through its territorial waters, and
arguably through any contiguous zone declared by it,1526 human rights law
does not impose an obligation to reach out to refugees attacked in adjacent
portions of the high seas. Because no state is bound to afford protection of
human rights in parts of the res communis unless it has appropriated jurisdic-
tion over that international territory, even the broad-ranging protection of Art.
9(1) cannot establish state responsibility for all threats to the physical security
of refugees in search of asylum.1527
With the exception of this critical territorial gap, Arts. 6, 7, and 9 of the Civil
and Political Covenant taken together provide a relatively sound foundation
for protection of the physical security of refugees. While these duties do not, of
course, insulate refugees from risks to their physical security, they can be
invoked by refugees to require governments of transit and asylum countries
both to avoid negative acts, and to take affirmative steps to counter privately
inflicted risks to their well-being.

4.4 Necessities of Life

Most refugees are not immediately able to meet their own needs for food,
water, shelter, and healthcare. Because the flight to safety cannot always be
planned, and because the logistics of travel often make it impossible for
refugees to bring significant resources or provisions with them, even refugees
who were self-sufficient in their homeland typically depend on the generosity
of the asylum country for survival. Yet there is a strong case that refugees can
often achieve a measure of self-sufficiency fairly quickly through farming,
small-scale business, or wage-labor. The case of Mozambican refugees who
went to Swaziland shows the ability of refugees to meet their own basic needs
when provided with opportunities for self-sufficiency by the host community:
These refugees began to arrive in Swaziland in late 1984. The majority did
not receive any international aid, relying instead on their own economic

1524
See text at note 1366. 1525 See text at note 1335.
1526
See generally Chapter 3.1.1 and Chapter 3.1.2 at notes 109–110.
1527
Thus, for example, UNHCR’s response to the attacks on Vietnamese refugees was to
address “an urgent call to all interested Governments to take appropriate action to
prevent such criminal attacks whether occurring on the high seas or in their territorial
waters” by, for example, undertaking increased sea and air patrols, identifying and
prosecuting those responsible, and implementing fully the rules of general international
law relating to the suppression of piracy: UNHCR Executive Committee Conclusion No.
20, “Protection of Asylum-Seekers at Sea” (1980), at [(c)–(e)].

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activities and on assistance from local villagers . . . While the refugees did
not own land, some received the use of small plots from Swazi farmers who
played host to them. In order to meet all their needs, refugees undertook a
variety of work. They worked for small farmers, or on large commercial
farms, or set themselves up as artisans or traders.1528

Particularly when start-up assistance is made available, refugees can quickly

become self-sufficient. This was the case, for example, when the international
humanitarian agency AfriCare assisted refugees from Angola and the
Democratic Republic of Congo to establish and run enterprises in a
Namibian refugee camp:

The refugees, mostly women, work as volunteers in an agro-forestry

project in the camp, planting trees and growing vegetables . . . [T]he
project was developed to educate refugees and also to help them grow
their own food to supplement their diet. The refugees have planted fruit
trees, mostly papayas . . . Although it is a refugee camp for more than
20,000 refugees . . . there is an open market . . . Items sold at the market are
fish, baked cakes, cooking oil, vegetables and various other consumables.
Besides the open market, the camp features a “guesthouse” and a number
of restaurants and shops owned and run by the refugees themselves.1529

Similarly, in Zambia, farming lessons and “agro-loans” – in which fertilizer and

other materials provided during the planting season are repaid in harvested
crops – enabled residents of the Meheba camp to sell their leftover produce to a
nearby mining community.1530 A similar program in Mozambique, which
emphasized vocational skills in a variety of areas such as agriculture, welding,
and carpentry, facilitated the employment of refugee residents in local
cities.1531
In truth, refugees may actually prove to be agents for development of local
economies.1532 A study of two settlements in Uganda found that

1528
D. Keen, Refugees: Rationing the Right to Life (1992) (Keen, Right to Life), at 60–61.
1529
“Self-Help Initiative at Osire Refugee Camp,” Namibian Economist, June 7, 2002.
1530
D. Kaunda, “Refugees Zambia: Making a Home for Themselves,” Inter Press Service, Aug.
19, 2008; see also K. Shimo et al., “Refugees in Zambia Receive the Skills to be Self-
sufficient,” Feb. 13, 2008.
1531
“The programme’s goal is to have families operate independently in six months, assisting
with marketing but leaving the purchase of feed to them. The start-up resources – repaid
by participants in the programme – can then be used for other families”: J. Redden and
R. Redmond, “UNHCR Gives Refugees in Mozambique the Skills to be Self-sufficient,”
Jan. 2, 2007.
1532
Refugees arriving in developed countries are also net economic contributors. A study in
the United States, for example, showed that between 2005 and 2014 refugees contributed
$63 billion more to the US economy than they cost: J. Hirschfeld Davis and S. Sengupta,
“Trump Administration Rejects Study Showing Positive Impact of Refugees,” New York
Times, Sept. 18, 2017.

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 4 .4 ne c es sit ies of life 583

[f]or every refugee household in Uganda receiving cash aid from the
[World Food Program], the local economy was boosted by more than
$1,100 dollars a year . . . These families [who received plots of land]
contributed more positively to the local economy than those not given
their own land, boosting it by an additional $220 a year, as they hire
agricultural labour from other households and purchase tools and supplies
from local businesses.1533

Indeed, Betts and Collier report that “in Kampala, 21% of refugees run a
business that creates jobs, and, of their employees, 40% are citizens of the
host country. In other words, refugees are making jobs not just for one another
but also for host nationals.”1534 Regrettably, states too often fail to capitalize on
the ability of refugees to make real contributions to meeting their own needs.
Under Ireland’s direct provision program, for example, persons seeking pro-
tection receive bed and board, a weekly allowance,1535 medical cards, and other
discretionary payments, but may not work or pursue self-employment.1536 In
reviewing the program’s performance since its introduction as a temporary
measure in 2000,1537 one study found that it “fosters social exclusion, creates
and exacerbates mental health problems, causes food poverty, has a deleterious
impact on family life and on the rights of the child, and creates dependency and
prevents integration.”1538

1533
A. Withnall, “Welcoming Refugees with Plots of Land and Cash ‘Gives Boost to Local
Economy,’” Independent, Oct. 28, 2016.
1534
A. Betts and P. Collier, Refuge: Transforming a Broken Refugee System (2017), at 165. See
also A. Betts et al., Refugee Economies: Forced Displacement and Development (2017).
1535
The weekly direct provision allowance (now termed a “daily expenses allowance”) is €29.80
for children and €38.80 for adults as of March 2019: “Services and entitlements for people
seeking asylum,” www.citizensinformation.ie/en/moving_country/asylum_seekers_and_re
fugees/services_for_asylum_seekers_in_ireland/direct_provision.html, accessed Feb. 10,
2020.
1536
C. Smyth, “Chronicle of a Reform Process: The Irish Working Group on Protection,”
(2016) 29(3) Journal of Refugee Studies 388, at 391–392.
1537
“Direct provision was introduced in 2000 as a short-term response to a rapidly increasing
number of asylum seekers which threatened to overwhelm the social welfare system at that
time. However, 15 years on and despite a sharp decline in the number of persons seeking
asylum in Ireland, mentioned earlier, direct provision has become an institution . . . [W]hat
distinguishes direct provision from reception conditions in other EU Member States is the
length of time persons are required to reside there. Owing to the delays in the protection and
associated immigration procedure, outlined above, the average length of stay in direct
provision is four years, with some people living in direct provision for more than 10
years:” ibid. at 392.
1538
Ibid. at 392. A recent report found that when in receipt of direct provision, “[y]ou have
forfeited not only agency but also privacy. You regress”: M. Gessen, “Ireland’s Strange,
Cruel System for Asylum Seekers,” The New Yorker, June 14, 2019. Indeed, the High
Court of Ireland determined that “[u]nduly lengthy exposure to ‘direct provision’ may
well be injurious and thus unlawful”: CA v. Minister for Justice and Equality, [2014] IEHC
532 (Ir. HC, Nov. 14, 2014), at [10.8].

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4.4.1 Freedom from Deprivation

Even where there are few if any surplus resources available, countries may
make heroic efforts to receive refugees in dignity. In 1984, for example, acute
food shortages forced Nicaragua to introduce a national rationing system for
its own citizens. Each household was allowed to buy only a fixed quantity of
sugar, cooking oil, rice, laundry soap, beans, and salt, at prices fixed by the
government.1539 Yet when 20,000 largely destitute Salvadoran refugees arrived
to seek protection in Nicaragua, they were assimilated to nationals for purposes
of participation in the rationing scheme.
Other governments have, however, reacted less generously to the challenge
of protecting refugees in difficult circumstances. Faced with a critical shortfall
in donor aid during a drought in the late 1980s,1540 the Ethiopian government
refused to allow deliveries of food aid to refugees living in areas under rebel
control.1541 Colombian refugees in Venezuela were effectively denied food
rations when the government instituted a quota system based on residents’
national identification numbers. The refugees’ lack of official documents
translated into an inability “to access official food lines. Even for those with
papers, being a Colombian can prove problematic; guards pick[ed] out for-
eigners based on their ID number and force[d] them out of the queue.”1542
In extreme cases, states may seek literally to starve refugees out of their
territory. In one of the worst examples, in November 2000 the Pakistani
government decided that it would refuse international aid for its massive
Afghan refugee population as part of its strategy to drive the refugees back
home. It even denied the UN access to one of the main refugee camps, where
conditions had become predictably horrific:

Tens of thousands have been camped in the open since January [2001] and
the government has refused to let the UN High Commissioner for
Refugees provide basic amenities for the new arrivals. The UNHCR said
that more than 80,000 were squatting in squalid conditions on a strip of

1539
J. Collins et al., Nicaragua: What Difference Could a Revolution Make? (1985) (Collins et
al., Nicaragua), at 228–229.
1540
UNHCR, “Feeding the Hungry,” (1996) 105 Refugees 16. International relief programs
have generally been plagued by budget reductions since the early 1980s, even as the size of
the world refugee population was increasing. “A smaller pie divided into an ever larger
number of pieces has meant that, on average, each refugee receives fewer resources”:
Keen, Right to Life, at 36–37.
1541
US Committee for Refugees, World Refugee Survey 1991 (1992), at 41. Some food aid
nonetheless managed to reach rebel-held areas when donor governments rerouted their
assistance to NGOs, which organized a cross-border operation to reach starving persons
in Eritrea and Tigray, coordinated by Norwegian Church Aid and the Relief Society of
Tigray: D. Turton, personal communication to the author, Aug. 25, 1999.
1542
E. Dickinson, “Colombia Preps Contingency Plans for Arrivals from Venezuela,” Devex,
Aug. 19, 2016.

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 4 .4 ne c es sit ies of life 585

land in Jalozai, and more were arriving each day. The camp is known to aid
workers as “Plastic City,” because of the cheap plastic bags being used as
tents. Faced with overflowing latrines and limited drinking water, the
refugees, particularly the children, are dying almost daily.1543

Sadly, the actions of the Pakistani government are not unique. Other govern-
ments have also denied refugees the necessities of life in order to force them home
or to deter other refugees from arriving. When refugees from the Democratic
Republic of Congo, Rwanda, and Somalia protested the decision of Swaziland to
stop paying them support allowances – their only means of supporting
themselves – the government responded by arresting them and ordering their
expulsion from the country.1544 Citing the Thai military’s restriction of food and
medical services for Lao Hmong refugees, Médecins Sans Frontières was compelled
to cease operations in the Huay Nam Khao camp in 2009.1545 In an effort to make
life unbearable, Malaysian officials confined Vietnamese refugees to longhouses in
which they had only two square meters of living space per person. Of the sixty-one
longhouses used to shelter refugees, ten were moreover declared structurally
unsound by the Malaysian Red Crescent Society.1546 When refugees from Cuba
protested in Quito, the Ecuadoran government responded by withholding access to
food and water before ordering their expulsion.1547
Essentials may also be withheld from refugees out of ethnic, religious, or other
antagonism. For example, Iraqi Kurds in Turkey were forced to live in camps
1543
E. MacAskill, “Pakistan Keeps Annan from ‘World’s Worst’ Camp,” Guardian, Mar. 13,
2001, at 14. “Although refugees continued to slip in, at year’s end the border remained
officially closed to them. The Pakistan government was labeling all new arrivals ‘illegal
immigrants.’ It continued to refuse UNHCR permission to create new camps to accommo-
date arriving refugees, and insisted that Afghanistan is now peaceful and that Afghan
refugees must return home”: US Committee for Refugees, World Refugee Survey 2001
(2001), at 163. In January 2015 the Government of Pakistan announced that the repatriation
of all Afghans by the end of 2015 was a key plank of its antiterrorism plan: Z. Siddiqui, “For
Afghan Refugees, Pakistan is a Nightmare – but Also Home,” Foreign Policy, May 19, 2019.
1544
“Swaziland Deports 65 Refugees,” Mail & Guardian, Sept. 4, 2002.
1545
“Aid Group Withdraws,” Radio Free Asia, May 20, 2009. “The army has hindered access to the
aid group’s facilities, including its clinic, and has added checkpoints throughout the camp,
intimidating both refugees and workers . . . [T]he military has tried several tactics to pressure
the refugees to return to their homeland, including asking the group to restrict food handouts
and jailing some camp leaders on flimsy pretexts.” The policies also placed the health of
refugees in jeopardy, as was the case with one woman “who had to be pulled through a barbed
wire fence to get to the clinic to give birth . . . [A]nother almost died in childbirth because of
delays”: G. Peck, “French Aid Group Stops Work at Thai Refugee Camp,” San Diego Union-
Tribune, May 20, 2009, citing Gilles Isard, director in Thailand of Médecins Sans Frontières. In
a one-day operation, the Thai government later evicted and returned the camp population of
over 4,000 refugees to Laos: S. Mydans, “Thailand Evicts 4,000 Hmong to Laos,” New York
Times, Dec. 28, 2009.
1546
US Government Accounting Office, “Refugees: Living Conditions are Marginal,” Doc.
No. UNGAO/NSIA-91-258 (1991) (US, “Living Conditions”), at 42–43.
1547
J. Miguel Vivanco, “Dispatches: Dozens of Cubans Expelled from Ecuador,” July 11, 2016.

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which had open privies infested with flies and insects.1548 The necessities of life
may also be denied to refugees as part of a strategy to punish them for actual or
perceived misdeeds. Kenya revoked the licenses of several remittance firms – a
primary source of Somali refugees’ livelihood – following Al-Shabaab’s attack on
university students in Garissa.1549 Similarly, Nigerian refugees in Cameroon’s
Minawao camp faced food restrictions and physical abuse following attacks by
Boko Haram;1550 refugees in other parts of the country were forcibly returned to
Nigeria.1551

Refugee Convention, Art. 20 Rationing

Where a rationing system exists, which applies to the population at
large and regulates the general distribution of products in short
supply, refugees shall be accorded the same treatment as nationals.

Civil and Political Covenant, Art. 6(1)

Every human being has the inherent right to life. This right shall be
protected by law. No one shall be arbitrarily deprived of his life.
1548
“Privies are situated in full sunlight, without any possibility of flushing them with water . . . In
the privies, faeces and other filth are piled up in the open air, covered with countless flies and
other insects . . . The drainage of the camp runs off in small ditches that have been dug
provisionally between the tents and along the paths. The stench is ferocious, and here too
there are countless swarms of flies”: German Bundestag Member Angelika Beer, June 12,
1989, cited in Initiative for Human Rights in Kurdistan, “Silence is Killing Them: A Report on
the Situation of the Kurdish Refugees in Turkey” (1990) (IHRK, “Kurdish Refugees”), at 15.
1549
Although the measure was purportedly designed to “curb the financing of terrorism,” its
effect was heavily felt by refugees forcibly removed to the Dadaab camps in the days
following the attack: “In Dadaab, which consists of several separate camps, there are some
30 remittance outlets, outside of which hundreds of customers queue every day to collect
money sent by friends and relatives abroad. Recipients spend the money on food, clothes,
medicine and education. Even firms not on the list have now suspended their businesses,
for fear of harassment by police”: “Somali Refugees Feel Remittance Pain after Kenya
Attack,” IRIN News, April 10, 2015.
1550
“Since May 2015, according to a UNHCR official, the camp has been ‘operating beyond
maximum capacity’ and ‘the congestion makes it challenging to provide sufficient quantities
of potable water, prevent outbreaks of diseases, and provide services and assistance that are in
line with minimal international humanitarian standards.’ . . . Cameroon has repeatedly
rejected UNHCR’s proposals since 2016 to set up a second camp for Nigerian refugees”:
Human Rights Watch, “‘They Forced Us onto Trucks like Animals’: Cameroon’s Mass
Forced Return and Abuse of Nigerian Refugees,” Sept. 2017, at 17. Conditions attending
the camp included severe shortages in food and limited or no access to potable water and
healthcare: “Some said they believed camp officials were misappropriating food and that
refugees were given considerably less food than the official ration. Others described how rice
rations were replaced with corn rations, which made many sick. Refugees also told Human
Rights Watch an exodus of thousands of refugees from the camp in April and May 2017 was
in protest of the food shortages in the camp at that time and the lack of hope in rectifying
long-term food shortages”: ibid. at 18.
1551
R. Maclean, “Tortured, Abused, Deported: Cameroon Accused of Driving Out
Nigerians,” Guardian, Sept. 27, 2017.

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 4.4 n ecessities of life 587

Civil and Political Covenant, Art. 7

No one shall be subjected to torture or to cruel, inhuman or
degrading treatment or punishment . . .
Civil and Political Covenant, Art. 9(1)
Everyone has the right to liberty and security of person . . .
Civil and Political Covenant, Art. 10(1)
All persons deprived of their liberty shall be treated with humanity
and with respect for the inherent dignity of the human person.
In some cases, depriving refugees of the necessities of life may give rise to a
breach of the duty of non-refoulement. Repatriation under coercion, including
situations in which refugees are left with no real option but to leave, is in breach
of Art. 33 of the Refugee Convention.1552 As such, Swaziland’s decision to deny
refugees any means of support, then to arrest and remove them when they
protested their situation,1553 was in substance an act of refoulement.
Even when repatriation does not in fact result, core norms of the Civil and
Political Covenant already examined may be contravened by such depriv-
ations.1554 Because the right to life set by Art. 6(1) of the Civil and Political
Covenant “is the supreme right . . . [and] should not be interpreted nar-
rowly,”1555 it prohibits threats to human life brought about not just by inten-
tional killing, but also by foreseeable malnutrition and life-threatening
illness.1556 Ecuador’s withholding of food and water from Cuban refugees in
order to prevent them from engaging in peaceful free speech1557 was thus in
breach of the duty under Art. 6(1) to protect the right to life. So too was the
decision of the Thai government expressly to cut off all food deliveries to
refugees held in their camps in the hope of deterring further arrivals;1558
indeed, this action also breached Art. 10(1)’s duty to treat all detained persons
with humanity and respect.1559 Nor is Art. 6(1) simply a prohibition of
negative conduct; it rather requires states to ensure a minimal standard of
positive action to protect the right to life.1560 While governments enjoy broad
discretion to decide how to implement Art. 6(1), they fail to meet their
obligation if whatever measures taken are manifestly insufficient relative to
known risks to life.1561
1552
See Chapter 4.1.2 at notes 257–261. 1553 See text at note 1544.
1554
The implications of Arts. 6 (life), 7 (torture, cruel, inhuman, degrading treatment or
punishment), 9 (physical security), and 10 (rights of detainees) of the Civil and Political
Covenant are discussed in detail in Chapter 4.3.
1555
UN Human Rights Committee, “General Comment No. 36 (2018) on Article 6 of the
International Covenant on Civil and Political Rights, on the Right to Life,” UN Doc.
CCPR/C/GC/36, adopted Oct. 30, 2018, at [2]–[3].
1556
Schabas, Nowak’s CCPR Commentary, at 126–127. 1557 See text at note 1547.
1558
See text at note 1545. 1559 See discussion of Art. 10(1) in Chapter 4.2.4, note 1317.
1560
See Chapter 4.3.1. 1561 Schabas, Nowak’s CCPR Commentary, at 125.

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 588 4 ri g ht s o f re f u g e e s p hy s i c a l l y p r e s e n t

Where the known risk is less clearly linked to immediate survival, actions to
deprive refugees of the necessities of life may still violate the duty to respect
physical security under Art. 9 of the Civil and Political Covenant.1562 For
example, the determined effort of Pakistan to create near-complete misery in
Afghan refugee camps by refusing foreign aid1563 should be seen as a breach of
Art. 9. Art. 9 also prohibits the sort of collective punishment by deprivation of
the necessities of life imposed by Kenya1564 and Cameroon1565 on refugees
ethnically linked to perceived security risks. More generally, Art. 9’s guarantee
of security of person requires governments to take reasonable and appropriate
measures to respond to known threats to basic personal well-being. A situation
in which food rations provided to refugees are known to be so qualitatively
deficient in terms of providing essential vitamins and nutrients that life-
threatening illness is the predictable result would therefore also logically fall
afoul of the duty to ensure the physical security of refugees.
Denial to refugees of the necessities of life may moreover contravene Art. 7’s
prohibition of cruel, inhuman, or degrading treatment or punishment.1566 In
refusing to allow return by Belgium of a refugee to Greece, for example, the
European Court of Human Rights noted that

[w]ith no means of subsistence, [the claimant], like many other Afghan

asylum seekers, has lived in a park in the middle of Athens for many
months. He spent his days looking for food. Occasionally he received
material aid from local people in the church. He had no access to any
sanitary facilities. At night he lived in permanent fear of being attacked
and robbed. He submitted that the resulting situation of vulnerability and
material and psychological deprivation amounted to [inhuman or degrad-
ing treatment or punishment].1567

Similarly, the UN Human Rights Committee determined that imprisonment in

a tiny space of virtually the exact size allocated to each Vietnamese refugee in
Malaysian longhouses1568 was a form of inhuman treatment.1569 As the House
of Lords determined, there is a positive duty on the state to intervene

when it appears on a fair and objective assessment of all relevant facts and
circumstances that an individual applicant faces an imminent prospect of
serious suffering caused or materially aggravated by denial of shelter, food

1562
See Chapter 4.3.3. 1563 See text at note 1543. 1564 See text at note 1549.
1565
See text at notes 1550–1551. 1566 See generally Chapter 4.3.2.
1567
MSS v. Belgium and Greece, Dec. No. 30696/09 (ECtHR, Jan. 21, 2011), at [238]–[239].
1568
See text at note 1546.
1569
Exacerbating factors in the cases considered by the Human Rights Committee included
the absence of light and incommunicado detention: Marais v. Madagascar, HRC Comm.
No. 49/1979, UN Doc. CCPR/C/18/D/49/1979, decided Mar. 24, 1983; Wight v.
Madagascar, HRC Comm. No. 115/1982, UN Doc. Supp. No. 40 (A/40/40), at 171,
decided Apr. 1, 1985.

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 4.4 necessities of life 589

or the most basic necessities of life. Many factors may affect that judge-
ment, including age, gender, mental and physical health and condition,
any facilities or sources of support available to the applicant, the weather
and time of year, and the period for which the applicant has already
suffered or is likely to continue to suffer privation.1570

Even less egregious denials of adequate accommodation may violate the Civil
and Political Covenant. Because of the special duty of care owed to detainees
under Art. 10(1), the extraordinarily unhygienic conditions to which Iraqi
Kurds were subjected in Turkish camps1571 would likely be seen as a form of
inhuman treatment.1572 And because Art. 7 also prohibits degrading treat-
ment, it is contravened by conduct outside the context of enforced detention
which shows a fundamental disregard for the refugee as a person.1573 For
example, where food is withheld from refugees in order to extort sexual favors,
officials demonstrate the willingness to demean and objectify their victim that
is the essence of degrading treatment. As Eide has observed,
The essential point is that everyone shall be able, without shame and
without unreasonable obstacles, to be a full participant in ordinary, every-
day interaction with other people. This means, inter alia, that they shall be
able to enjoy their basic needs under conditions of dignity. No one shall
have to live under conditions whereby the only way to satisfy their needs is
by degrading or depriving themselves of their basic freedoms, such as
through begging, prostitution or bonded labour.1574

The drafters of the Refugee Convention, however, paid surprisingly little

attention to the importance of meeting the basic needs of refugees who arrive
to seek protection. While they gave detailed attention to a variety of relatively
sophisticated socioeconomic rights (for example, access to social security, fair
treatment under tax laws, and even the protection of refugees’ intellectual
1570
R (Limbuela) v. Secretary of State for the Home Department, [2005] UKHL 66 (UK HL,
Nov. 3, 2005), at [8], per Bingham L.J. As Baroness Hale insisted, whatever the govern-
ment’s objectives, “it is of the essence of the State’s obligations not to subject any person
to suffering which [amounts to inhuman or degrading treatment] that the ends cannot
justify the means”: ibid. at [77].
1571
See text at note 1548.
1572
See e.g. Cabal and Pasini Bertran v. Australia, HRC Comm. No. 1020/02, UN Doc.
CCPR/C/78/D/1020/2001, decided Aug. 7, 2003 (one-hour placement in a holding cell
resembling small cage breached Art. 10(1)); Brough v. Australia, HRC Comm. No. 1184/
03, UN Doc. CCPR/C/86/D/1184/2003, decided Mar. 17, 2006 (extended solitary con-
finement in a “safe cell” for seventeen-year-old Aboriginal inmate with mental disability,
exposure to artificial light for prolonged periods, removal of clothes and blanket violated
Art. 10(1)).
1573
See Chapter 4.3.2.
1574
A. Eide, “The Right to an Adequate Standard of Living, Including the Right to Food,” in
A. Eide et al. eds., Economic, Social and Cultural Rights: A Textbook 133 (2001)(Eide,
“Standard of Living”), at 133.

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 590 4 ri g h t s of r e f u g e es ph y s i c a l l y p r e s e nt

property), the Convention does not address rights to food, water, or healthcare,
and only regulates access to public housing for refugees once they are lawfully
staying in a given country.
A variety of explanations may be offered. Most of the European states that
drafted the Convention were accustomed to receiving refugees under orderly
entry arrangements. Such refugees, who were immediately authorized to enter
either permanently or for an extended stay, would automatically enjoy the
right to engage in wage-earning or professional work. As refugees were almost
always fellow Europeans, they normally possessed compatible skills, and could
therefore be expected to meet basic needs from their own income. Even when
refugees arrived without pre-authorization, governments in the 1940s and
1950s were still able to process these irregular entrants fairly quickly. The
refugees’ own assets could therefore usually see them through until their claims
were recognized and work authorization granted.
More generally, the Refugee Convention predates the advent of the Western
social welfare state. So long as refugees could earn their own living and benefit
from basic property rights, they enjoyed essentially as much protection as did
most nationals. And in any event, it was assumed that UNHCR would take the
lead on such issues given its institutional responsibility to administer public
and private funds for material assistance to refugees.1575
The one relevant concern addressed, however, was access by refugees to
essential goods not distributed on the open market.1576 Because so many key
goods had been rationed during the just-concluded Second World War, the
drafters were concerned to ensure that all refugees, whether arriving with or
without authorization,1577 and whether present only temporarily or indefin-
itely,1578 be included in any state-managed distribution systems that might be
set up by asylum countries. While far from a guarantee that even basic
necessities will in fact be provided to refugees, Art. 20 of the Convention

1575
Statute of the Office of the United Nations High Commissioner for Refugees, UNGA Res.
428(V), adopted Dec. 14, 1950, at [10]. The United Nations had agreed to establish
UNHCR in December 1949: UNGA Res. 319(IV).
1576
Robinson suggests that the value of Art. 20 is really quite modest. “It is rather unusual to
treat aliens in the matter of rationing differently than nationals. Thus, the Convention
only sanctions the general usage but, at the same time, strives to prevent a less favorable
trend in any Contracting State”: Robinson, History, at 119.
1577
In a critical exchange, the American representative observed “that some of the articles did
not specifically indicate to which refugees they applied. He presumed that the mention of
‘refugees’ without any qualifying phrase was intended to include all refugees, whether
lawfully or unlawfully in a territory”: Statement of Mr. Henkin of the United States, UN
Doc. E/AC.32/SR.41, Aug. 23, 1950, at 18. The immediate and unchallenged response of
the Chairman was “that the United States representative’s presumption was correct”:
Statement of the Chairman, Mr. Larsen of Denmark, ibid.
1578
“If a national were passing through a town for a day and received a day’s rations, so would
a refugee”: Statement of Sir Leslie Brass of the United Kingdom, ibid. at 19.

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 4 .4 n e c es siti es of life 591

ensures that refugees are assimilated to citizens for purposes of receiving

allocations under rationing systems. If the rationing system provides that
citizens receive vital goods free of charge, then so too must similarly situated
refugees. But if the rationing system merely allocates quantities of goods that
may be purchased, then the only right of refugees is to purchase goods through
that allocation scheme.
There was discussion in the Ad Hoc Committee regarding the type of
rationing systems in which refugees should have a right to participate. The
Secretary-General’s draft spoke only of systems to distribute items “of prime
necessity.”1579 There was agreement among the drafters that any system for the
rationing of accommodation would be exempt from Art. 20, since housing is
separately addressed by Art. 21 of the Convention.1580 It was also agreed that
refugees were only to have equal access to systems for the rationing of con-
sumer goods, not products of all kinds. An American proposal that Art. 20
should apply to all “commodities in short supply”1581 was criticized by the
French representative as “too far-reaching. Governments might be encouraged
to ration commodities in short supply, such as common or precious metals,
because they were of particular use to the country. The text of the article should
make it clear that it concerned essential goods for individual use.”1582 The Ad
Hoc Committee’s recommendation therefore referred to the rationing of
“products” (rather than commodities).1583
Suggestions were made to further circumscribe the scope of Art. 20 by
limiting its scope to rationing systems for “foodstuffs” and related items,1584
or to exclude gasoline rationing systems.1585 But the comments forwarded to
the Conference of Plenipotentiaries endorsed neither of these proposed limi-
tations.1586 In order to bring the text of Art. 20 into alignment with the

1579
Secretary-General, “Memorandum,” at 38 (draft Art. 18).
1580
While the American representative voiced concern that the housing needs of refugees be
addressed (Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.15, Jan.
27, 1950, at 4), the notion that housing allocation schemes should be deemed “rationing
systems” was successfully opposed by the French representative (Statement of Mr. Rain of
France, ibid. at 3). The Chairman concluded from the debate “that provisions regarding
housing should not be included in the article on rationing; it would be better to state these
in a separate article”: Statement of the Chairman, Mr. Chance of Canada, ibid. at 4.
1581
Statement of Mr. Henkin of the United States, ibid. at 5.
1582
Statement of Mr. Rain of France, ibid. at 5.
1583
“This article applies to the generally recognized systems of rationing, which apply to the
population at large and regulate the general distribution of products in short supply”:
“Comments of the Committee on the Draft Convention relating to the Status of
Refugees,” Annex II to Ad Hoc Committee, “First Session Report,” at 4.
1584
Statement of Mr. Cuvelier of Belgium, UN Doc. E/AC.32/SR.15, Jan. 27, 1950, at 5.
1585
Statement of Sir Leslie Brass of the United Kingdom, ibid.
1586
But see Weis, Travaux, at 160: “It follows from the debate that it refers to consumer goods
in short supply, not to commodities for commercial or industrial use. Petrol was also
mentioned as not being included.”

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 592 4 ri g ht s o f re f u g e e s p hy s i c a l l y p r e s e n t

explanatory comments,1587 the Conference determined that refugees would be

entitled to benefit as equals from rationing systems established for all “products
in short supply.”1588 The absence of any qualification suggests that refugees are
entitled fully to participate in any system for the rationing of any consumer
good.1589
Nicaragua’s decision fully to enfranchise refugees for purposes of access to its
national rationing program is therefore a stellar example of compliance with Art.
20. Even though Nicaragua experienced extraordinary difficulty in meeting the
basic needs of its own population (due to a combination of absolute shortages,
production and transportation difficulties, and the American government’s
policy of economic destabilization),1590 refugee households were given access
to its rationing system on terms of equality with nationals. On the other hand,
Venezuela’s refusal to grant Colombian refugees access to rationing based on the
formalist argument that they did not have a national identity card1591 – which
the government would not provide them – was in breach of Art. 20.
One concern expressed was that Art. 20 might inadvertently require the
abolition of preferential rationing systems for refugees. As the Chinese repre-
sentative explained, his government had treated refugees and Chinese citizens
differently under rationing systems in force during the Second World War.
China had provided the Jewish and other European refugees with food rations
more appropriate to their own dietary requirements and preferences. These
refugees received more flour and sugar than did Chinese citizens, while the
Chinese received more rice than the refugees.1592 The Chairman replied that
the original language of Art. 20, requiring that refugees be dealt with under
rationing systems “on the same footing as nationals,”1593 meant only that
refugees “would not be treated less favorably than nationals.”1594 Without

1587
Statement of Mr. Robinson of Israel, UN Doc. E/AC.32/SR.37, Aug. 16, 1950, at 21.
1588
This language was drafted by the Style Committee (UN Doc. A/CONF.2/102, July 24,
1951, at 11), and adopted by the Conference without discussion: UN Doc. A/CONF.2/
SR.35, July 25, 1951, at 5.
1589
The French representative observed that “[I]n practice, rationing did apply principally to
foodstuffs; that, however, was a question of usage which could not affect the etymological
meaning of the word ‘rationing.’ He pointed out that, during the Second World War,
products other than foodstuffs – textiles, soap, petrol and so forth – had been rationed in
France”: Statement of Mr. Rain of France, UN Doc. E/AC.32/SR.15, Jan. 27, 1950, at 3.
1590
See text at note 1539; and generally Collins et al., Nicaragua, at 218–219.
1591
See text at note 1542.
1592
Statement of Mr. Cha of China, UN Doc. E/AC.32/SR.15, Jan. 27, 1950, at 3. See also
Statement of Mr. Cha of China, UN Doc. E/AC.32/SR.41, Aug. 23, 1950, at 19: “He hoped
that the use of the words adopted would not mean that Governments would not give
rations to refugees in accordance with their needs, even if such rations were larger than
those given to nationals.”
1593
Secretary-General, “Memorandum,” at 38.
1594
Statement of the Chairman, Mr. Chance of Canada, UN Doc. E/AC.32/SR.15, Jan. 27,
1950, at 3.

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 4.4 n ecessities of life 593

any discussion, however, the Conference of Plenipotentiaries opted to delete

the reference to treatment “on the same footing” as nationals in favor of a
recommendation from its Style Committee that refugees receive “the same
treatment” as nationals under rationing systems.1595
It is possible that the drafters intended to insist on formal equality of rations
between refugees and nationals to avert the possibility of abuse under the guise
of recognition of cultural or other differences. The more likely scenario,
however, is that the phrase “on the same footing as nationals” was simply
viewed as out of keeping with the ways in which standards of treatment are
defined elsewhere in the Convention.1596 In view of the general practice in
international law of defining equality to mean substantive equality,1597 Art. 20
should therefore be understood to authorize some measure of operational
flexibility to ensure that refugees are in fact dealt with no less favorably than
nationals.1598
While Art. 20 governs access only to a rationing system “which applies to the
population at large,” this does not exclude comparably situated refugees from
accessing domestic rationing systems set up for particular sub-populations. The
intention of the drafters was that refugee status (or non-citizenship) not be a
basis for withholding rations from refugees. Thus, the American representative
noted that Art. 20 applies to systems under which “different rations [are estab-
lished] for different categories of people, for example, for children.”1599 A
rationing system that provides goods only for children is a system which applies
to a designated part of “the population at large,” in consequence of which refugee
children should receive the same rations as citizen children. But if the rationing
program is designed only to benefit children, adult refugees have no claim to
entitlement under it.1600

1595
UN Doc. A/CONF.2/SR.35, July 25, 1951, at 5.
1596
Even the American representative to the Ad Hoc Committee, who had championed the
logic of the phrase “on the same footing as nationals,” conceded that “[h]e had no
particular brief for the use of such a wording”: Statement of Mr. Henkin of the United
States, UN Doc. E/AC.32/SR.41, Aug. 23, 1950, at 19. See generally Chapter 3.3.2.
1597
See Chapter 1.5.5.
1598
See also E. Lester, “Article 20,” in A. Zimmermann ed., The 1951 Convention Relating to
the Status of Refugees and its 1967 Protocol: A Commentary 993 (2011) (Lester, “Article
20”), at 996 (“These exchanges suggest that a sufficient degree of flexibility was intended
in the text to accommodate variations in rations for different categories of person[s], such
as children, and to accommodate the particular needs of refugee populations”).
1599
Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.41, Aug. 23, 1950,
at 19.
1600
Robinson reaches the same result, but on the basis of a different analysis. He suggests that
“Art. 20 is not applicable to allocation of certain items in favor of restricted groups or to
products which are generally available in sufficient quantities but are allocated to certain
groups, for instance, indigent persons, large families, at or on more favorable prices or
conditions. In such circumstances, Art. 7(1) would apply”: Robinson, History, at 119–120.

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 594 4 ri g ht s of re f u g e e s p hy s i c a l l y p r e s e n t

Art. 20 of the Refugee Convention governs only access to rationing systems,

that is, schemes established to distribute goods because those goods are in short
supply. It is therefore not a basis for refugees to assert a right of access to public
welfare or comparable systems which allocate basic necessities (or the funds to
acquire them) on the basis of economic need, rather than because of the
scarcity of the products themselves.1601 Most fundamentally, Art. 20 does not
require the establishment of any kind of rationing system for refugees, no
matter how extreme their needs. The only obligation is to ensure that refugees
benefit on terms of equality with nationals under any rationing system that is
established. If neither refugees nor citizens are provided with access to a
rationing system – as was the case for those in rebel-held areas of Ethiopia,
to which the government denied aid agencies access1602 – then Art. 20 of the
Refugee Convention is not breached.1603 The more broadly applicable duty to
provide refugees with the basic necessities of life must therefore be established
under general norms of international human rights law as described below,1604
rather than by reliance on any specific requirement of the Refugee Convention
itself.1605

4.4.2 Access to Food and Shelter

Even where there is a willingness to help refugees meet their most basic needs,
it is often impossible for local economies already facing shortages of land and
jobs simply to accommodate all refugees who arrive. The problem is most
critical in poorer countries of the South, where there tend to be larger refugee
movements with fewer local resources to provide for them.1606 The challenge is
of course most acute when host countries are themselves facing a crisis – as was

This result is, in any event, compelled by the duty of non-discrimination under Art. 26 of
the Civil and Political Covenant: see Chapter 1.5.5 at note 453.
1601
The right of refugees to access public welfare systems is discussed at Chapter 6.3.
1602
See text at notes 1540–1541. Despite the clear applicability of these more general norms to
refugees (see Chapter 1.5.4) it is not sound to invoke the principle of lex lata to argue that
such standards change the content or substance of Art. 20 of the Refugee Convention. But
see Lester, “Article 20,” at 998–999.
1603
The denial of aid to these areas likely violated Art. 11 of the Economic Covenant,
however. See Chapter 4.4.2.
1604
See text at note 1696 ff. 1605 See Chapters 4.4.2 and 4.4.3.
1606
As Castles has observed, in order to assess “the weight of the ‘refugee burden,’ [it is most]
instructive . . . to relate refugee populations to the wealth of the receiving country . . .
Refugees are overwhelmingly concentrated in the poorest countries. This puts the
frequent Northern claims of being unfairly burdened by refugees in perspective”:
S. Castles, “The International Politics of Forced Migration,” in L. Panitch and C. Leys
eds., Fighting Identities: Race, Religion, and Ethno-Nationalism 172 (2002), at 174. As of
2019, “[c]ountries in developed regions hosted 16 per cent of refugees, while one third of
the global refugee population (6.7 million people) were in the Least Developed
Countries”: UNHCR, “Global Trends: Forced Displacement in 2018” (2019), at 2.

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 4.4 n ecessities of life 595

the case during the 2017 droughts in South Sudan, Yemen, Somalia, and
Nigeria, subjecting refugees and citizens alike to starvation.1607 In such cir-
cumstances, the survival of refugees has usually depended on international
agencies providing a substantial supplement to local efforts.1608 Yet as UNHCR
has acknowledged, “the rhetoric on international solidarity and burden-
sharing rarely translates into tangible support to refugee-affected areas. The
international response has been uneven and often driven by political and
economic considerations on the part of many donors.”1609
Because international refugee relief efforts are funded by voluntary
state contributions, there is no guarantee that aid will be able to meet
needs. For example, in 2001 a funding shortfall for the 20,000 Angolan
refugees in Namibia’s Osire refugee camp resulted in severe food
reductions:

The funds available are only enough to buy 30% of the food needed . . .
Food rations have already been reduced to 80% of the recommended basic
monthly diet of 2,100 (17 kg) kilocalories. Due to the cut in rations,
refugees now get only 8–10 kg of maize, their staple food.1610

Beyond inadequate food, the camp was home to more than ten times the
number of refugees for which it had been constructed, resulting in shortages
of all kinds:

[T]he refugee camp . . . urgently needs at least 500 more family pit latrines
because existing facilities have clogged up. And although . . . there are
adequate water points at present . . . the rate at which refugees are arriving
in the country makes it impossible to guarantee a steady supply [of water] . . .
Apart from the scarcity of tents and kerosene for cooking food, the clinic at

1607
“In all, more than 20 million people in Nigeria, South Sudan, Somalia and Yemen are
experiencing famine or are at risk. The regions in which these countries sit, including the
Lake Chad basin, Great Lakes, East, Horn of Africa and Yemen together host well over 4
million refugees and asylum seekers. Consecutive harvests have failed, conflict in South
Sudan coupled with drought is leading to famine and outflows of refugees, insecurity in
Somalia is leading to rising internal displacement, and rates of malnutrition are high,
especially among children and lactating mothers. In the Dollo Ado area of southeast
Ethiopia for example, acute malnutrition rates among newly arriving Somali refugee
children aged between 6 months and five years are now running at 50–79 percent”:
UNHCR, “UNHCR says Death Risk from Starvation in Horn of Africa, Yemen, Nigeria
Growing, Displacement already Rising,” Apr. 11, 2017.
1608
“Almost half of the world’s refugees are totally dependent on international assistance for
the basic needs of food, shelter, water, and health care”: Forbes Martin, Refugee Women,
at 33.
1609
UNHCR Executive Committee, “Social and Economic Impact of Massive Refugee
Populations on Host Developing Countries, as well as Other Countries: Addressing the
Gaps,” UN Doc. EC/49/SC/CRP.24, Sept. 3, 1999, at para. 2.
1610
Namibian, May 2, 2001.

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 596 4 ri g ht s of re f u g e es p hy s i c a l l y p r e s e n t

Osire has been strenuously overstretched and more medical equipment and
drugs are needed to combat possible disease outbreaks.1611

True disaster was thankfully averted at Osire because of a last-minute response

from the Swedish and American governments.1612 But resort to cutbacks on
even the most basic forms of assistance remains tragically common. A severe
funding crisis forced the UN to cut food aid to Syrian refugees throughout the
Middle East and North Africa in 2015,1613 and to reduce cereal rations to South
Sudanese refugees in Uganda in 2017.1614 Similarly, once a peace process was
underway in Burundi, UNHCR’s budget to operate refugee camps for
Burundians in Tanzania was cut by 55 percent.1615 UNHCR was unable to
persuade donors to make funds available to meet even basic needs in the camps
of Tanzania’s Kibondo district, which continued to receive more than 100
Burundian refugees each day.1616 As the local UNICEF chief observed, “[w]hen
things fizzle out in terms of CNN coverage, the funding starts to disappear.”1617

1611
Namibian, Dec. 1, 2000.
1612
Namibian, May 17, 2001; US Committee for Refugees, World Refugee Survey 2002 (2003),
at 87.
1613
Z. Yun Tan, “Syrian Refugees Face Hunger amidst Humanitarian Funding Crisis,” Inter
Press Service, July 2, 2015; “Funding Shorfall Forces UN Agency to Make Cuts in Food
Aid to Syrian Refugees,” UN News Centre, July 1, 2015. Nor have such funding shortfalls
abated. According to a 2017 report, sustained conflicts and hunger crises have led to
rations cuts of 20 percent in Ethiopia and 10 percent in Rwanda, among other countries
affected: P. Schemm, “A Widening Budget Gap is Forcing the UN to Slash Food Aid to
Refugees,” Washington Post, Jan. 1, 2017.
1614
The shortcoming was attributed to an “inability to secure adequate cereal stocks, together
with an average of more than 2,000 new arrivals fleeing from South Sudan daily, as well as
a significant funding shortfall . . . The move, which took effect May 22, will see the
monthly cereal rations cut in half for more than 800,000 South Sudanese refugees in
Yumbe, Adjumani, Koboko, Arua and Moyo districts . . . Previously, all refugees were
receiving 12 kg of cereals (maize, sorghum) every month. Due to severely limited stocks,
demands from crises in South Sudan, Somalia, and Kenya, and the inability to resource
additional supplies within the region, cereal rations have now been reduced by 50
percent. This has created anxiety amongst refugees as there is no clarity on when they
will receive their next balanced ration. This reduction in ration size means that an active
adult female will now receive the same amount of cereal recommended for an active
three-year-old child”: L. Fisher, “Government of Uganda and World Food Program
Forced to Reduce Food Rations for Nearly 800,000 Refugees,” May 28, 2017.
1615
“The Burundi peace talks in Tanzania last year, brokered by Nelson Mandela and visited
by Bill Clinton, have done the refugees more harm than good. Most of the Hutu rebel
groups were excluded and the initiative has come to nothing. But it was enough to send
many donors elsewhere”: J. Astill, “UN Refugee Work in Crisis as World Ignores
Burundi,” Guardian, Feb. 14, 2001, at 18.
1616
“Several operations in the refugee camps . . . have been severely curtailed or suspended
altogether as a result of UNHCR’s funding problems . . . Fuel has been cut by 50%, soap
distribution to refugees has been suspended, and all construction and training programs
have been cancelled”: (2001) 85 JRS Dispatches (Jan. 17, 2001).
1617
Ibid., quoting Mr. Bjorn Lungqvist of UNICEF.

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 4.4 necessities of life 597

Indeed, even as a massive effort was underway to assist refugees in flight from
Kosovo, UNHCR reported that donations to existing operations had “stag-
nated,” meaning, for example, that funds were not available even to provide
Somali refugees in Kenya with firewood for cooking.1618 A reporter wrote, “Far
from safe havens, the camps [in Kenya] are so dangerous that aid workers
venture into them only with armed escorts. And if the plight of ethnic
Albanians has reintroduced the word ‘refugee’ to discourse around the
world, no overflow of compassion has reached the dusty Somali settlements
here.”1619
Yet financial shortfalls cannot always explain cuts in the provision of food
aid, which may rather be the result of the political agendas. For example, the
decision to reduce the nourishment received by Burundian refugees in
Tanzanian camps to only 62 percent of the 2,100 recommended daily kilo-
calories1620 coincided suspiciously with the Tanzanian president’s call for the
refugees to go home.1621 And a cut in food aid to Kenya’s Dadaab camp in 2017
meant Somali refugees who bought food on credit were increasingly forced to
accept the UNHCR’s offer of $150 “voluntarily” to return to their country.1622

1618
“‘I cannot tell you for a fact that the contributions to Kosovo have affected the contribu-
tions to the rest,’ said Michel Gabaudon, chief fund-raiser for the UN High
Commissioner for Refugees . . . But donations to existing operations have ‘stagnated’
since the outpouring for the Balkans, Gabaudon reported, and ‘I have had donors say,
“Where can you make cuts?’” ‘If funds are cut,’ he added, ‘your bottom line is water and
food’”: K. Vick, “For Somali Refugees, No Safe Haven,” Washington Post, June 3, 1999,
at A19.
1619
Ibid. The cuts were particularly tragic because the firewood program had obviated the
need for women to scavenge for firewood in the bush, where they had been subjected to
rape at a rate seventy-five times higher than would be expected in a community of that
size: ibid.
1620
“WFP Cut Refugee Food Ration over Funding Constraints,” The Citizen, Aug. 28, 2017.
1621
As part of this strategy, President Magufuli also ordered the suspension of registration
and naturalization of Burundian refugees: “‘It’s not that I am expelling Burundian
refugees. I am just advising them to voluntarily return home,’ said Magufuli. ‘I urge
Burundians to remain in their country, I have been assured, the place is now calm.’ But
Joseph Siegle, director at the Africa Center for Strategic Studies in Washington, said
Magufuli’s comments were ‘at odds with the situation on the ground, as all available
reports on Burundi by the East African Community, African Union and UN demonstrate
that the situation is getting worse and refugee numbers are increasing’. Tanzania hosts
241,687 Burundian refugees and asylum seekers, according to the latest statistics from the
UN High Commissioner for Refugees, and Siegle said: ‘Magufuli’s desire for the
Burundian refugees to return home reflects the strains that hosting the approximately
240,000 registered refugees is having on Tanzania. Indeed, Tanzania hosts more
Burundian refugees than any other country’”: S. Okiror, “Tanzania President Under
Fire for Urging Refugees to Return to ‘Stable’ Burundi,” Guardian, July 29, 2017.
1622
Before departing, refugees repaid their creditors with UNHCR repatriation funds so as to
avoid further threats or harassment. Far from oblivious, “[t]he UN officials knew what
was going on; they had even allowed a money changer onto the airstrip, so that the
refugees could pay their debts in the local currency”: K. Sieff, “Crushed by Debt, Refugees

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 598 4 ri g ht s of re f u g e e s p hy s i c a l l y p r e s e n t

Even when adequate resources are in principle provided to meet refugee

needs, refugees may nonetheless face food and other shortages because of
logistical barriers to the delivery of aid, especially when refugee camps are
situated in remote regions. Food deliveries to the indigenous Nicaraguan
refugees living in Honduras, for example, had to be suspended during the
rainy season as their settlements could only be reached by canoe.1623 Rohingya
refugees arriving in Bangladesh in 2017 experienced delays due to difficulty
accessing their communities, which could be reached only via a narrow and
over-traveled road.1624 Getting aid to refugees may also be difficult when they
are located in areas surrounded by hostile forces. For example, insecurity and
fighting along supply routes hindered aid access to Sudanese refugees in South
Sudan, resulting in continuous food shortages affecting numerous camps.1625
And even when supplies do get through, theft and other calamities may mean
that the aid may still not reach the refugees – as was the case when flooding in
2015 resulted in the loss of 85,000 food rations soon after they were delivered to
Sahrawi refugees in Algeria.1626
Malnutrition may also stem from the rigid application by host states of
general rules. For example, while shortfalls in international assistance
accounted for much suffering at the Osire refugee camp in Namibia, the
problems there were compounded by the host state’s initial refusal to waive
its long-standing ban on importing the refugees’ staple food, maize meal.1627

have Little Choice but to Return to War-Torn Somalia,” Washington Post, Dec. 15, 2017.
Making clear its true goal, the Kenyan government persisted in efforts to close the Dadaab
camp even after the High Court blocked that policy in 2017: N. Bhalla, “Kenya Orders
Closure of Dadaab Refugee Camp this Year, according to Leaked UN Document,”
Reuters, Mar. 29, 2019.
1623
US Government Accounting Office, “Central America: Conditions of Refugees and
Displaced Persons,” Doc. No. UNGAO/NSIAD-89-54 (1989) (US, “Central America”),
at 22.
1624
“Access to humanitarian aid is one of the biggest challenges. Most refugees live along the
road bordering the district estuary. The narrow road, where most aid is distributed, is
already congested with humanitarian convoys at certain points. Many refugees live
further back from the road and find it difficult to access aid distributions. People with
reduced mobility, such as older people or people with disabilities, also find it hard to
reach assistance”: Handicap International, “80% of Rohingya Refugees Lack Food Aid,”
Oct. 13, 2017.
1625
P. Rulashe, “Food Shortages in South Sudan Refugee Camps Stoke Mounting Anger,”
May 7, 2014.
1626
UNHCR, “Algeria Refugee Response Plan for Flood Damage in Camps,” Nov. 2, 2015,
at 7.
1627
Namibian, May 2, 2001. Because local maize prices were nearly double those of maize on
the international market, the World Food Program (WFP) objected to the requirement.
Yet again in 2003, “[a] request to the Namibian Agronomic Board to be excused from the
import restrictions has been refused. The WFP has now requested the intervention of the
Home Affairs Ministry to plead for this decision to be reconsidered”: “Food Shortage
Looms for Osire Refugees,” Namibian, July 18, 2003. “The government imposed the ban

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 4.4 necessities of life 599

Similarly, the Bangladeshi government refused to allow the UN to assist the

400,000 refugees arriving outside its two designated camps of operation.1628 In
other circumstances, food shortages result from the failure of camp or other
administrators to plan for and properly to oversee the distribution of aid.1629 In
Ethiopia, for example, the diversion of food to both Sudanese and Somali rebel
movements was considered widespread.1630 Budget cuts had reduced the
number of UNHCR staff assigned to monitor food distribution, in conse-
quence of which “there was no assurance that needy refugees actually received
their food allotments.”1631
The fair distribution of aid is often a particular problem for refugee women
and children.1632 In some camps where food supplies are limited, women and
children have been inadequately fed because cultural norms dictate that they
should not eat until men have had all they wish to eat.1633 Even more egre-
giously, some Bhutanese refugee women in Nepal were unable to secure access
to food and other aid because Nepal’s system of registration required all rations
to be distributed through male heads of household. In the result, women in

to encourage the buying of maize from local farmers during the harvest period”:
Namibian Economist, Aug. 1, 2003.
1628
J. Rowlatt, “Rohingya Crisis: Why Aid is Slow to Reach Refugees,” BBC, Sept. 14, 2017.
1629
“Pressing food shortages are looming at Kakuma camp in Northern Kenya . . . The
medical coordinator claims that many children will die if food is not rushed to the
camp. It seems that the authorities have known about the looming shortage for a long
time but they took no measures to prevent it”: (2000) 76 JRS Dispatches (Aug. 31, 2000).
1630
“Looting and diversion of food continued to be a problem in several SPLA zones. Action
Against Hunger, a French non-governmental agency, claimed that it was expelled by the
SPLA because it was about to investigate why a high rate of malnutrition existed in
Labone despite adequate supplies of relief food for the civilian population. It was
suspected that the SPLA deliberately kept some children in a thin and sickly state to
justify continued high levels of relief food the SPLA could divert”: Human Rights Watch,
World Report 1998 (1998), at 76.
1631
US, “Living Conditions,” at 11.
1632
“Access to food may be problematic for refugee women. International organizations
and host countries generally make decisions about food distribution. They may or
may not consult with refugees. Even where there is consultation, the aid agencies
often confer with refugee leaders, who may exclude women from membership in
key organizations. Male refugees may have very limited knowledge about the issues
and needs of refugee women and their children. For example, they may not know
that certain foods that are distributed cannot be readily prepared in the camp
setting:” S. Martin, “Refugee Women,” in D. Elliott and U. Segal, eds., Refugees
Worldwide: A Global Perspective 207 (2012), at 219.
1633
Forbes Martin, Refugee Women, at 35. See also G. Camus-Jacques, “Refugee Women: The
Forgotten Majority,” in G. Loescher and L. Monahan eds., Refugees and International
Relations (1990) (Camus-Jacques, “Forgotten Majority”), at 148: “This [type of discrim-
inatory practice] vividly demonstrates how refugee policies for the administration of
material assistance are insufficient when such biased practices against women are allowed
to develop and persist.” See also UNHCR, “Note on Refugee Women and International
Protection,” UN Doc. EC/SCP/59, Aug. 28, 1990, at [30].

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 600 4 r i gh t s of ref ugees physic ally present

abusive relationships “must stay in violent relationships, leave their relation-

ships (and thus relinquish their full share of aid packages), or marry another
man, in which case they lose legal custody of their children.”1634
For all these reasons, inadequate access to food is the leading cause of death
among refugees.1635 As UNHCR has observed, “[m]alnutrition is both a
primary and secondary cause of death. There is a direct causal relationship
between malnutrition and mortality in refugee sites, and this is most pro-
nounced among children under five years of age.”1636 Sadly, the death rate for
Somalis fleeing civil war actually peaked a year after reaching the “safety” of the
Hartisheik camp in Ethiopia. Because of inadequate food, 46 out of every 1,000
adults died, with the death rate for children reaching a staggering 150 per
1,000.1637 Similarly, Somali refugees fleeing to Kenya in 2011 experienced
mortality rates of 7.4 per 10,000, more than fifteen times the sub-Saharan
baseline rate.1638 More than one million refugees in the Horn of Africa,
Ethiopia, and Nigeria were at risk in 2017 because of the combination of
drought and a long-standing shortfall in funding of aid agencies.1639 Afghan
refugees in Pakistan were “faced with a no-win situation . . . They can either
move to the camps nearer the border with Afghanistan, where their security
cannot be guaranteed, or they can stay in Peshawar, where their food supply
and winter shelter cannot be guaranteed.”1640 Conditions may even be so bad
that refugees return home to face the risk of being persecuted rather than starve
in an asylum country. Starvation-induced repatriation was documented, for
example, in the case of Uzbek refugees who had been forced to sort through
insect-infested grains in Kyrgyzstan in order to survive.1641
1634
Human Rights Watch, “Nepal/Bhutan: Refugee Women Face Abuses,” Sept. 24, 2003.
1635
Forbes Martin, Refugee Women, at 33.
1636
UNHCR Executive Committee, “Refugee Health,” UN Doc. EC/1995/SC.2/CRP.29, Sept.
11, 1995.
1637
Keen, Right to Life, at 7–8.
1638
UNHCR, “Somali Refugee Death Rate at 15 Times Norm,” Yahoo! News, July 19, 2011.
1639
“Children account for the majority of refugees (62 per cent, for instance, in the case of
refugees fleeing South Sudan) and in common with other refugees nearly all are depend-
ent on food assistance via our sister-agency WFP. With no money to buy food, rations
however are being cut. In Djibouti rations have been cut by 12 per cent, in Ethiopia,
Tanzania, and Rwanda by between 20 and 50 per cent, and in Uganda by up to 75 per
cent. Many refugees are without full access to livelihoods and agriculture or food
production and their ability to take matters into their own hands and help themselves
is limited”: UNHCR, “UNHCR says Death Risk from Starvation in Horn of Africa,
Yemen, Nigeria Growing, Displacement already Rising,” Apr. 11, 2017.
1640
Human Rights Watch, “Pakistan: Refugees Not Moving Voluntarily,” Dec. 5, 2001.
1641
Following the arrival of more than 500 Uzbek citizens fleeing their homes in Andijan, the
Kyrgyz governor of the hosting province reportedly stated, “It is in our tradition to treat
strangers as guests for only the first three days, but no more. These people should live in
their own country”: Human Rights Watch, “Kyrgyzstan: Say No to Return of Uzbek
Refugees,” May 26, 2005. During a visit to the camp, Human Rights Watch “found harsh
conditions and infrastructure that was insufficient to meet people’s needs. For instance,

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 4.4 necessities of life 601

Even where inadequate food rations do not lead directly to death or forced
return, they may cause serious illness. Rations for some Somali refugees in
Ethiopia included no vegetables and little iron, resulting in high anemia rates
among women and children,1642 while refugees from the Democratic Republic
of Congo were refused any fish or meat at the Dukwe refugee camp in
Botswana.1643 Potentially fatal diseases long eradicated in the North, such as
scurvy, xerophthalmia, anemia, and beriberi, have made comebacks in the
refugee camps of the South because of acute vitamin deficiencies.1644 For
example, a shortage of niacin in food baskets led to an outbreak of pellagra
among Mozambican refugees in Malawi.1645 Emergency-level malnutrition
also accompanied cholera, measles, meningitis, and polio in children under
the age of five in Kenya’s Dadaab and Kakuma camps.1646 In other situations,
the only food provided may be culturally foreign or simply bad. For Congolese
refugees fleeing to Cameroon, for instance, the unavailability of food aid until

there were only 10 tents available to shelter more than 500 Uzbek refugees, as well as
insufficient supplies of food and water. Staff watched the camp residents picking through
grain infested with insects in order to gather some edible food”: ibid.
1642
“A number of issues of concern related to food security were identified by UNHCR and
WFP in the refugee camps in Ethiopia. First, the refugee diet is both monotonous and
does not meet the full micronutrient needs of the population. Almost 90 per cent of the
refugees have been living in Ethiopia for more than 15 years, and these protracted
refugees depend fully on food aid, which means they have been receiving the same
kind of food commodities all this time: cereals (wheat and/or maize), vegetable oil, salt
and sugar (together amounting to 1750 to 2100 kcal/day/person). Second, the dietary
diversity is very poor, due to lack of affordable fresh foods (which are also scarce in the
region). UNHCR is not able to provide fresh vegetables in many refugee camps, while the
hosting government’s current land policy does not allow the refugees to cultivate crops
themselves outside the camps. Third, it was found that children and pregnant women are
especially vulnerable. Anaemia rates among children and women of childbearing age are
high. Although these rates were reduced from 35–67 per cent in 2007 to 34–38 per cent in
2008, they are still too high and a public health concern”: M. Tsadik, “Enhancing
Household Food Security in Refugee Camps in Ethiopia,” Urban Agriculture, Jan. 2009,
at 16.
1643
It is reported that the UNHCR regional representative viewed the refugees’ request as
“unreasonable . . . If we are looking at the kilo-calories content of the food, it is in
accordance with international standards”: Namibian, Feb. 7, 2001, quoting Mangesha
Kebede of the UNHCR’s Regional Office in Pretoria.
1644
Keen, Right to Life, at 17–19; United States, “Outbreak of Beriberi Among Illegal
Mainland Chinese Immigrants at a Detention Center in Taiwan,” (2003) 118 Public
Health Reports 59.
1645
US, “Living Conditions,” at 41–42. See also Centers for Disease Control, “International
Notes: Outbreak of Pellagra Among Mozambican Refugees – Malawi, 1990,” (1991) 40
(13) Morbidity and Mortality Weekly Report 209.
1646
Further exacerbating the situation was the shortage of firewood and other non-food
essentials: “‘If refugees don’t get firewood, or soap, they have to sell their general food
rations to buy it,’ said [World Food Program] deputy country director Marian Read.
‘When there isn’t enough to go around, it’s the children and women who suffer most’”:
“Agencies Seek Help to Stem Malnutrition in Refugee Camps,” IRIN News, Feb. 23, 2016.

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 602 4 righ t s of r efug ee s ph y sica lly p r es en t

late 2007 meant that refugees relied almost exclusively on cassava – a cheap
staple food that, when insufficiently processed and combined with a protein-
deficient diet, can result in permanent paralysis of the lower limbs, hearing and
sight problems, and even death.1647
Access to clean drinking water is also a frequent concern for refugees.1648
Refugees given responsibility to collect water (typically women) are often vul-
nerable to sleeping sickness, malaria, yellow fever, and river blindness.1649 While
UNHCR guidelines recommend 15–20 liters of water per day for each person,
refugees in one camp in western Ethiopia were reported to receive less than 1
liter of water.1650 At the Maheba camp in Zambia, the death rate among Angolan
refugees tripled in less than three months because the camp had only one
functioning borehole, rather than the twenty required for its population.1651 A
lack of toilets or latrines can also lead to the contamination of water sources. For
example, Rohingya refugees in a makeshift Bangladeshi camp were forced to
drink and bathe from a river littered with human feces.1652 And the mixing of
milk powder with unclean water can cause severe diarrhea and even death
among infants and young children.1653

1647
Known as “konzo,” the disease affected primarily women and children refugees: “The
high numbers of new konzo cases, together with the high mortality rate in the general
population, both show the very precarious situation [of] refugees during this period.
General food distribution became only available in August 2007. Until then most of the
patients reported a diet consisting almost exclusively of cassava. Most of the refugees were
pastoralists who had lost their cattle in CAR [Central African Republic]. They were
relying on cassava from the local community and it is likely that the preparation of
cassava had changed while demand increased”: I. Ciglenečki et al., “Konzo Outbreak
Among Refugees from Central African Republic in Eastern Region, Cameroon,” 49
(2011) Food and Chemical Toxicology 579, at 581. See also “CAR Refugees in
Cameroon Diseased, Malnourished, Lack Water,” IRIN News, Dec. 3, 2007.
1648
Access to clean water may indeed be the single most important means of saving refugee
lives: Keen, Right to Life, at 21. Keen reports that when clean water was provided to
refugees in eastern Sudan, “there was a 1% death rate among those who contracted
cholera in refugee camps, whereas in nearby Sudanese villages the proportion reached
20%. Non-governmental organizations realized what was happening and began to give
assistance to Sudanese health centres, though this effort was impeded by lack of
resources”: ibid.
1649
Forbes Martin, Refugee Women, at 38.
1650
US, “Living Conditions,” at 12. The same problem occurred, though to a less drastic
extent, at the Nyarugusu camp in Tanzania, where a camp designed for 50,000 persons
was in fact used by more than 120,000 refugees, resulting in access to no more than 3 liters
of water per day per person: A. Rowan, “Improving Access to Water for Refugees in
Tanzania,” July 9, 2015.
1651
(2000) 82 JRS Dispatches (Nov. 10, 2000).
1652
J. Bennett, “Rohingya Face Hunger and Disease in Bangladesh Refugee Camp after
Escaping Myanmar Violence,” Australia Broadcasting Corporation, Sept. 24, 2017.
1653
“Formula use in refugee camps is dangerous because when the supply is unstable women
will dilute the milk – they add water to it and the babies don’t get enough nutrients. Often
the powdered milk, which is not sterile, can’t be heated properly. Just as you don’t eat raw

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 4.4 necessities of life 603

Beyond food and water, refugee survival usually depends on access to

adequate shelter. Although shelter is a crucial determinant of refugee
health,1654 particularly in extreme climatic conditions, it is frequently treated
as an afterthought to other necessities of life. For example, more than 60,000
Kosovar refugees arriving in northern Albania were forced to sleep outside in
what UNHCR described as “unsanitary, open-air . . . massive sick bays.”1655
When Iraqi Kurds arriving at the Jordanian border were not allowed by
officials to cross, they were forced to dig holes covered with plastic sheets to
protect themselves from the rain and cold.1656 And while Bangladeshi author-
ities did construct a camp for Rohingya refugees, their decision to do so in an
area frequented by elephant herds led to the trampling of tents on multiple
occasions.1657
At times, persons seeking protection find themselves denied shelter because of
delays in refugee status assessments, as was the case for refugees from the Central
African Republic arriving in Chad who were denied camp access while their
registration was pending and thus left to survive by squatting in a forest.1658 In

chicken, you can’t drink formula without using boiling water. The formula is often out of
date – I have seen some that is two years past its ‘use by’ date, or volunteers put it in bags
to hand out so there is no clue of how old it is”: B. Bauer, “Breastfeeding: How One Group
Fought the Spread of Formula Milk in Refugee Camps,” Guardian, Nov. 30, 2016.
Insufficient or contaminated water sources exacerbate the problem: “Insufficient water
means that containers and utensils used for mixing milk are often dirty, thus making
secondary contamination highly probable . . . The immune system of a child below two
years of age is not yet fully developed and consequently, is less able to resist the effects of
high bacterial food contamination. Acute diarrhoea and dehydration are the inevitable
results of ingesting contaminated milk, contributing to malnutrition, and increased
morbidity and mortality”: UNHCR, “UNHCR Policy related to the Acceptable
Distribution and Use of Milk Products in Refugee Settings” (2006), at 5.
1654
J. Rivers and G. Brown, “Physiological Aspects of Shelter Deprivation,” in I. Davis ed.,
Disasters and the Small Dwelling 11 (1981).
1655
“The deep, chest-heaving cough can be heard all throughout the night . . . [A]s the flow of
refugees has slowed, medical personnel have turned their attention from life-threatening
trauma to the respiratory and gastrointestinal ailments”: UNHCR, Refugees Daily, May 6,
1999.
1656
“Refugees Insist on Staying Put at Border Crossing,” IRIN News, Mar. 20, 2006.
1657
“Wild Elephants Attack Rohingya Camp, Killing 4 in Bangladesh,” Chicago Tribune, Oct.
15, 2017.
1658
“Life for the squatters is hard, even by local standards, in a region where few can afford
even the basics, and low prices for cotton, the region’s main crop, has devastated incomes
this year. As the rainy season sets in, the refugees’ only shelters are flimsy huts they have
hastily built out of dry leaves, rubbish and debris found in the forest. And many of the
youngest are barely surviving on the occasional handouts from villagers, gifts from
passing Central African traders, and plants they find to eat in the forest. A total 63
children from around Bekoningka and two other crossing points for CAR refugees have
been diagnosed with malnutrition in the last three weeks, according to health workers”:
“Would-Be Refugees Going Hungry in Forest,” IRIN News, May 29, 2006. According to
UNHCR, the problem is “purely administrative”: “The local authorities at Bekoningka

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 604 4 r ights of r efugees p hysically present

other instances, persons afforded protection are later forced from their homes
with little notice or justification. Several hundred Syrians in the Lebanese town of
Miziara, for example, were evicted following a woman’s suspected murder by a
Syrian refugee.1659 Colombian refugees in Venezuela were similarly forced to flee
their homes when President Maduro called for their removal; their only warning
came in the form of a large “D” painted on homes marked for “demolition.”1660
Even when refugees receive housing, overcrowding is a frequent problem.
Central American refugees in Mexico’s Siglo XXI detention center faced the
specter of up to fifteen people being housed in a single unit.1661 Syrians at Iraq’s
Domiz camp were forced to share tents with newly arriving refugees, as “almost
3,500 families do not have their own shelters.”1662 Refugee housing also fre-
quently lacks adequate sanitation. Conditions across the Greek islands have been
severe: refugees in tent cities struggled with sewage overflows and wild snakes in
bathrooms, while those in abandoned warehouses reported nitrate-contaminated
water.1663 South Sudanese refugees in Uganda reportedly chose “open defecation”
over the long lines and distances to the few communal lavatories available to
them.1664 The overcrowding and lack of sanitation in the Italian reception facilities
in Pozzallo were so bad that the volunteer doctors working there suspended their
service in protest over the conditions.1665

must send a note to the regional prefect at Gore, 40 kilometres away. A Chadian
government organisation – CENU – must then accompany UNHCR to assess the number
of refugees. An unwieldy process that could take weeks in itself, after which the refugees
will still have to wait through another month of interviews to weed out Chadians, soldiers,
and other non-refugees, according to UNHCR staff. The squatters in Bekoningka are
oblivious to the bureaucratic nuances of their status”: ibid.
1659
“Woman’s Murder Prompts Mass Eviction of Syrians from Lebanese Town,” Reuters,
Oct. 5, 2017.
1660
G. Gupta, “Distraught Colombians Flee Venezuela as Border Dispute Intensifies,”
Reuters, Aug. 26, 2015; W. Neuman, “Colombians Flee Venezuela’s Crackdown on
Immigrants,” Aug. 27, 2015.
1661
L. Weiss, “Central American Refugees Struggle for Protection in Southern Mexico,”
North American Congress on Latin America, Sept. 19, 2016.
1662
“The crowding is in turn having an impact on sanitation, which is already below
humanitarian standards. Congestion and warmer temperatures are increasing vulner-
ability to outbreaks of diseases as well as to tension between camp residents. The number
of children below 5 years of age suffering from diarrhoea in the camp has doubled in
recent weeks: Since February, on average nine children out of every hundred suffer from
diarrhoea per week. Additionally, there have been 62 cases of Hepatitis A since the
beginning of [2013]”: UNHCR, “UNHCR Appealing for More Space and Support for
Syrian Refugees in Iraq,” Apr. 2, 2013.
1663
R. Banning-Lover, “Greek Refugee Camps Remain Dangerous and Inadequate, say Aid
Workers,” Guardian, Feb. 10, 2017.
1664
Lutheran World Federation, “Combating Open Defecation in Palorinya Settlement,” Oct.
31, 2017.
1665
Médecins Sans Frontières, “Italy: MSF Ends Activities in Pozzallo Reception Centre,”
Dec. 30, 2015; see also Statewatch, “Briefing: Italy: MSF Report on Reception Conditions
in Pozzallo” (2015).

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 4.4 necessities of life 605

In general, the minority of refugees that seek asylum in the developed world
are much less likely to be denied access to the basic necessities of life. Some
countries, including Canada,1666 Greece, Norway, Portugal, and Sweden,1667
allow refugees subject to status verification to engage in wage-earning employ-
ment. Other European countries either deny asylum-seekers the right to seek
employment altogether or do so for a period of time.1668 For example, refugees
undergoing status verification in Ireland may not work at all,1669 while
Germany bars them from accessing employment for the duration of their
stay in a reception center.1670 Switzerland allows refugees to work after a
three-month waiting period;1671 in Spain, the waiting period is six months.1672
The Netherlands generally allows refugee claimants to work, though the
duration of the work permit is a maximum of twenty-four weeks per
annum.1673 And while US law permits applicants to work 180 days after filing,

1666
V. Stevenson, “What Refugee Claimants Receive from the Government,” CBC News, Aug.
18, 2017.
1667
European Commission Policy Observatory (EEPO), “Challenges in the Labour Market
Integration of Asylum Seekers and Refugees,” May 2016 (EEPO, “Challenges in Labour
Market Integration”), at 7.
1668
Members of the European Union are obliged to “ensure that applicants have access to the
labour market no later than 9 months from the date when the application for inter-
national protection was lodged if a first instance decision by the competent authority has
not been taken and the delay cannot be attributed to the applicant”: Council Directive
laying down standards for the reception of applicants for international protection
(recast), Doc. 2013/33/EU (June 26, 2013) (EU Reception Conditions Directive (recast)),
at Art. 15(1).
1669
EEPO, “Challenges in Labour Market Integration,” at 7.
1670
Beginning in October 2015, new regulations barred refugees from accessing the labor
market for the duration of their stay in an initial reception center, the maximum period of
which is six months: AIDA, “Country Report: Germany 2018” (2019), at 82, www
.asylumineurope.org/reports/country/germany, accessed Feb. 10, 2020. As of August
2019, the period of mandatory stay in a reception center was increased to eighteen
months, and exclusion from the labor market increased to nine months: Mixed
Migration Centre, “Germany’s New Migration and Asylum Legislation: Extraordinary
Opening, Shrinking Protection Space, or Both?,” Aug. 20, 2019.
1671
“According to national legislation, asylum seekers cannot engage in any gainful employ-
ment during the first 3 months after filing an application for asylum. The canton of
attribution may extend this restriction for a further 3 months if the asylum application is
rejected at the first instance within the first 3-month period”: AIDA, “Country Report:
Switzerland 2018” (2019), at 80, www.asylumineurope.org/reports/country/switzerland,
accessed Feb. 10, 2020.
1672
“Asylum seekers are legally entitled to start working 6 months after their application for
asylum is officially accepted, while their application is being examined”: AIDA, “Country
Report: Spain 2018” (2019), at 62, www.asylumineurope.org/reports/country/spain,
accessed Feb. 10, 2020.
1673
“Despite having the right to work, asylum seekers can only work limited time, namely a
maximum of 24 weeks each 12 months”: AIDA, “Country Report: Netherlands 2018”
(2019), at 66, www.asylumineurope.org/reports/country/netherlands, accessed Feb. 10,
2020.

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 606 4 r i g h t s of r ef u g e e s p h y s i c a l l y p r e s e n t

the practice of “stopping the clock” for court delays has led to an inability to
work for months or even years.1674
In most cases, refugees allowed to work in industrialized countries can meet
basic needs from their own income. This is less likely to be the case, however, in
states that impose bureaucratic obstacles to receipt of a work permit, or where
the administrative burden lies with potential employers.1675 In Malta, for
example, employers who must apply for short-term licenses on behalf of
refugee claimants are in practice deterred from hiring them.1676 Many refugees
also face language difficulties, educational differences, certification require-
ments, cultural barriers, and xenophobic or racist barriers to work.1677 Thus,
even in asylum countries in which refugees are in principle entitled to work,
they may be either channeled into low-paying, insecure jobs, or simply unable
to find work at all.
Refugees in the developed world who are either prevented from working or
who cannot find work must therefore turn to public or private assistance to
meet their basic needs. Many countries in Western Europe have established
specialized reception centers to accommodate asylum-seekers which provide
residents with not only shelter, but also food or cooking facilities, as well as on-
site medical assistance. Some states such as Germany and Ireland have trad-
itionally met the needs of refugees only by way of a mandatory stay in a
reception center.1678 Bulgaria has more recently adopted this policy: though

1674
Human Rights Watch, “At Least Let them Work: The Denial of Work Authorization and
Assistance for Asylum Seekers in the United States,” Nov. 2013, at 17–26. Government
data acquired in 2012 showed that “between 2007 and May 2011 there were 285,101
pending cases before the immigration courts. Of those pending cases, 262,025, or 91.9%,
had stopped clocks at some point during the case”: ibid. at 18. Further delays are now
occurring by reason of the policy to schedule asylum interviews for recent asylum
applicants in priority to those whose applications have been pending for some time: US
Citizenship and Immigration Services, “Affirmative Asylum Interview Scheduling,” Jan.
26, 2018.
1675
See e.g. OECD and UNHCR, “Migration Policy Debates No. 10: Hiring Refugees – What
are the Opportunities and Challenges for Employers?,” Sept. 2016 (OECD and UNHCR,
“Hiring Refugees”), at 3–4.
1676
EEPO, “Challenges in Labour Market Integration,” at 8.
1677
See e.g. OECD and UNHCR, “Hiring Refugees,” at 4–5.
1678
“Asylum seekers are entitled to reception conditions as defined in the Asylum Seekers’
Benefits Act (Asylbewerberleistungsgesetz) from the moment they arrive at the reception
centre to which they have been assigned and where they are issued an “arrival certificate”
(Ankunftsnachweis). They remain entitled to these reception conditions as long as they
have the status of an asylum seeker and are entitled to a permission to stay
(Aufenthaltsgestattung) . . . As a rule, asylum seekers are required to stay in the initial
reception centre hosting the BAMF branch office where they lodge their application for a
period up to 6 weeks but not exceeding 6 months”: AIDA, “Country Report: Germany
2018” (2019), at 67, 73, www.asylumineurope.org/reports/country/germany, accessed
Feb. 10, 2020. In Ireland, “[a]sylum seekers are not obliged to use RIA accommodation
and may source their own accommodation or stay with relatives or friends. However, to

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 4. 4 n eces s i t i es o f life 607

refugee claimants may reside outside the centers, they must first waive the right
to accommodation and to the monthly social allowance.1679 Conversely, indi-
viduals in other countries may face barriers in accessing reception centers. In
Belgium, for example, nationality-based preferences in practice led to the
accommodation of Syrian refugees at the expense of their Afghan and Iraqi
counterparts.1680
Alternatively, refugees awaiting status verification may be granted access to
social assistance schemes that provide them with the funds needed to meet
their own basic needs. Refugee claimants in most EU member states may access
social welfare, but have the usual social benefit amount reduced to account for
the value of accommodation provided in reception centers.1681 The United
Kingdom provides asylum applicants with just over 50 percent of the income
support paid to citizens.1682 Until 2004, Britain also barred refugees from
receiving public assistance unless they made their claim to be a refugee

do so means that the individual is not entitled to material reception conditions or State
social welfare supports, e.g. medical card, rent allowance, etc.”: AIDA, “Country Report:
Ireland 2018” (2019), at 53, www.asylumineurope.org/reports/country/republic-ireland,
accessed Feb. 10, 2020.
1679
While refugee claimants may in principle reside outside the centers, the requirement to
waive a formal right to accommodation and other forms of social assistance in practice
leaves them with few options: AIDA, “Country Report: Bulgaria 2018” (2019), at 45,
www.asylumineurope.org/reports/country/bulgaria, accessed Feb. 10, 2020.
1680
“In Belgium, collective accommodation – which is generally applied during the first stages of
reception of an asylum seeker before he or she is transferred to individual structures – does
not apply to those with a high chance of receiving protection status, i.e. Syrians, since the
summer of 2015. Conversely, Iraqi and Afghan nationals were not able to quickly secure
accommodation due to the authorities’ deterrence tactics, involving written communications
discouraging potential applicants from entering the procedure, and delays of more than two
weeks in registering them. This has led to at least one judgment by the Labour Court,
condemning Fedasil, the Belgian reception agency, to provide accommodation to an Afghan
asylum seeker”: European Council on Refugees and Exiles, “Wrong Counts and Closing
Doors: The Reception Refugees and Asylum Seekers in Europe,” Mar. 2016, at 40.
1681
E. Poptcheva et al., “Work and Social Welfare for Asylum-Seekers and Refugees: Selected EU
Member States”, Dec. 2015 (Poptcheva, “Work and Social Welfare”), at 13–14 (France), 16
(Germany), 24 (Poland), 26–27 (Spain), 28 (Sweden). Even with such a seemingly flexible
standard, however, the allowances provided have often been insufficient. For persons
without accommodation in France, for example, only an additional €4.20 was added to the
base amount of €6.80 to account for housing, an amount the French Council of State found
to be “manifestly insufficient” under the recast Reception Conditions Directive: Asylum
Information Database, “France: Allowance Insufficient for Asylum Seekers without
Accommodation,” Jan. 2, 2017. Similar concerns have been raised with regard to practices
in Poland: Poptcheva, “Work and Social Welfare”, Dec. 2015, at 24–25.
1682
“Basic Needs Unmet for UK Asylum-Seekers,” IRIN News, Oct. 1, 2014. Following an
increase of just 33 pence between 2011 and 2015 (British Refugee Council, “Asylum
Support,” Feb. 2017, at 1, 4), the payment was increased another 88 pence in 2018 to
£37.75 per person each week. These payments are expected to cover the cost of food,
clothing, and toiletries: A. Travis, “Destitute UK Asylum Seekers get 80p Rise in
Subsistence Payments,” Guardian, Jan. 15, 2018.

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forthwith upon arrival in the United Kingdom,1683 depriving many refugee

claimants of income supplements, housing benefits, and disability allow-
ances.1684 Combined with Britain’s twelve-month ban on the employment of
persons seeking recognition of refugee status, the limited income support
available to claimants translated into an extraordinarily difficult position.1685
Generalized shortages of affordable housing in Western Europe have led to
congestion in refugee reception centers.1686 Thus, the Committee on
Economic, Social and Cultural Rights noted its concern with regard to Italy
about “the insufficient number of reception centres . . . and the substandard
conditions therein”1687 – meaning that homelessness among refugees is a not
uncommon phenomenon.1688 Those refugees not admitted to centers often

1683
These changes were brought in by the Social Security (Persons from Abroad)
Miscellaneous Amendment Regulations 1996 (Feb. 5, 1996), and were incorporated in
the Asylum and Immigration Act on July 24, 1996. They are, in essence, a penalty on
account of illegal entry or presence: see Chapter 4.2.2. This approach appears to have
been the model for the European Union’s Council Directive laying down minimum
standards for the reception of asylum-seekers, Doc. 2003/9/EC (Jan. 27, 2003) (EU
Reception Directive), at Art. 16(2) (now Art. 20(2) of Directive 2013/33/EU), which
authorized states to “refuse [reception] conditions” where a claim is not made as soon as
reasonably practicable after arrival: Immigration Law Practitioners’ Association, [June
2004] European Update 10.
1684
It was estimated that about 65 percent of refugees did not apply for recognition of refugee
status to an immigration officer immediately upon arrival: A. Travis, “Thousands of
Asylum-Seekers Face ‘Destitution,’” Guardian, Dec. 27, 2002, at 1. More recently, the
government has applied s. 55 of the Nationality, Immigration and Asylum Act 2002 more
flexibly to account for persons claiming refugee status within three days of arrival in the
United Kingdom: UK Visas & Immigration, “Section 55 Guidance,” at 6–8, www.gov.uk/
government/uploads/system/uploads/attachment_data/file/431346/Section_55_v12.pdf,
accessed Feb. 10, 2020.
1685
The United Kingdom previously allowed refugees who had not received an adjudication
of their claim within six months to secure work authorization at that time; that policy was
rescinded in July 2002. At present, permission to work is granted only twelve months
after filing their claim: EEPO, “Challenges in Labour Market Integration,” at 5–6.
1686
See e.g. K. Connolly, “Damning Report Exposes Europe’s Escalating Housing Crisis,”
Guardian, Nov. 19, 2015. As one commenter put it, “[w]e don’t have a refugee crisis, we
have a housing crisis”: J. Dullroy, “Housing for Refugees takes Center Stage at Venice
Architecture Biennale,” Reuters, May 31, 2016, quoting Director of the Deutsches
Architekturmuseum Peter Cachola Schmal.
1687
Committee on Economic, Social and Cultural Rights, “Concluding Observations on the
Fifth Periodic Report of Italy,” UN Doc. E/C.12/ITA/CO/5 (2015), at [18]. Nor are the
problems limited to reception centers. Chronic housing shortages have led refugees to
seek shelter in abandoned buildings and warehouses, sometimes for years, as they wait for
public housing to become available. Refugees recently evicted from one such shelter in
Rome later congregated in the gardens by Piazza Venezia, only to face dispersal at the
hands of riot police armed with water cannons: E. Povoledo, “In Rome, Violent Eviction
of Migrants ‘Touched a Nerve,’” New York Times, Sept. 4, 2017.
1688
See e.g. European Council on Refugees and Exiles, “Wrong Counts and Closing Doors:
The Reception Refugees and Asylum Seekers in Europe,” Mar. 2016, at 32–34.

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 4 .4 n e c es siti es of life 609

end up in boarding houses, or sharing dwellings with strangers. In France, for

example, chronic shortages in accommodation have forced refugees awaiting
the outcomes of their claims to sleep on the streets, sometimes in frigid
conditions.1689 And refugees sleeping on the streets or in abandoned buildings
during January 2017 faced temperatures well below freezing, leading to several
deaths across Europe.1690 Under the British government’s controversial dis-
persal policy, asylum-seekers have been given free access to public housing. But
the assigned destinations are often arbitrarily selected,1691 remote from critical
services,1692 of a poor standard,1693 and sometimes in neighborhoods where
1689
“France has built new processing centers and accelerated asylum decisions, but the
authorities have not kept pace with the steady stream of new arrivals, and emergency
housing for migrants is limited. There are only 400 beds available for single men in Paris,
and each man is limited to 10 nights . . . But even those who get a place risk losing it over
minor infractions. Information in migrants’ native languages is scarce, and the rules at
asylum hostels – like curfews and visiting policies – change constantly”: E. Brown, “On
Paris’s Icy Streets, Migrants Wait for Word on Refuge,” New York Times, Jan. 21, 2018.
1690
L. Dearden and N. McIntyre, “Refugees Freezing to Death across Europe after ‘Continued
Failure’ on Crisis Leaves Thousands at Risk,” Independent, Jan. 11, 2017. Rather than
assisting those suffering to find shelter, police in Paris reportedly stole blankets to deter
refugees from sleeping on the streets: L. Pasha-Robinson, “French Police ‘Stealing
Blankets from Migrants,’ Charity warns,” Independent, Jan. 8, 2017. In Serbia, refugees
taking shelter in abandoned warehouses, many of them children, resorted to burning
toxic materials to keep warm: N. Slawson, “Thousands of Refugee Children Sleeping
Rough in Sub-zero Serbia, says UN,” Guardian, Jan. 23, 2017.
1691
According to the chair of the Home Affairs Select Committee, “the problems stemmed
from a change of policy in 2012 by the Conservatives, which saw the contracts for housing
asylum seekers privatised and given to G4S, Serco and Clearsprings. She said these
contracts, and the reduced money they were given to execute them, inevitably meant
that companies sought to procure cheap housing in poor parts of the country”: K. Lyons
and P. Duncan, “‘It’s a Shambles’: Data Shows Most Asylum Seekers put in Poorest Parts
of Britain,” Guardian, Apr. 9, 2017. As a result, “more than half of all asylum seekers
(57%) housed by the government are done so in the poorest third of the country. The
richest third of the country houses 10% of all asylum seekers, basing calculations on the
median income in each local authority for which income data is available”: ibid.
Exacerbating the problem is the lack of additional funding available to the councils,
which must continue to host those whose protection claims are ultimately approved: ibid.
1692
Persons placed in temporary accommodation “have little choice over what food is
available, receive no financial support and can have difficulties accessing third sector
and advocacy networks. We were told that Providers did not always fulfil obligations to
provide transport to medical appointments, that many people in hotel accommodation
have no idea how they can get to see a [general practitioner] and that they lack the HC2
certificates necessary to get free prescriptions, glasses or dental treatment”: House of
Commons Home Affairs Committee, “Asylum Accommodation,” Twelfth report of
session 2016–2017, Jan. 31, 2017, at [51].
1693
In reaching its conclusion that “people are being placed in accommodation that is unfit
for habitation” (ibid. at 26), the UK House of Commons Home Affairs Committee
considered evidence of vermin and insect infestations; known asbestos risks, water
leaks, and mold; rotten, broken, or missing furniture; and failing heating systems: ibid.
at [59]–[71].

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 610 4 ri g ht s of re f u g e e s p hy s i c a l l y p r e s e n t

there was a known risk to the physical security of refugees and other foreign-
ers.1694 Those whose applications are ultimately approved are granted only a
twenty-eight-day “grace period” to find accommodation and employment, and
are restricted to the dispersal area to which they were originally assigned. The
government also imposed a penalty under which those who fail to travel to
their new residence within the allotted time are deemed to be “intentionally
homeless.”1695

Economic, Social and Cultural Covenant, Art. 11

1. The States Parties to the present Covenant recognize the right of
everyone to an adequate standard of living for himself and his
family, including adequate food, clothing and housing, and to
the continuous improvement of living conditions. The States
Parties will take appropriate steps to ensure the realization of
this right, recognizing to this effect the essential importance of
international co-operation based on free consent.
2. The States Parties to the present Covenant . . . recogniz[e] the
fundamental right of everyone to be free from hunger . . .

Economic, Social and Cultural Covenant, Art. 2(1)

Each State Party to the present Covenant undertakes to take steps,
individually and through international assistance and co-oper-
ation, especially economic and technical . . . with a view to achiev-
ing progressively the full realization of the rights recognized in
the present Covenant by all appropriate means . . .

1694
A. Travis, “Warning on Shifting Asylum Seekers to Dangerous Areas is Revealed,”
Guardian, Mar. 15, 2007.
1695
“Once an individual gains refugee status, there are two regulations that impact on
subsequent experiences of housing and integration. First, refugees have 28 days to vacate
NASS accommodation, after which time they become homeless. Second, Section 11 of the
Asylum and Immigration (Treatment of Claimants etc.) Act 2004 implemented the ‘local
connection’ rule, meaning that when an asylum seeker is granted refugee status and
becomes homeless (e.g. in Cardiff), a housing application can be made only to the local
authority of the original dispersal area and not elsewhere in the UK, such as Manchester
or London. Along with dispersal policy, this legislation aims to reduce refugee onward
movement”: E. Stewart and M. Shaffer, “Moving On? Dispersal Policy, Onward
Migration and Integration of Refugees in the UK,” Dec. 2015, at 58–59. “As an example,
the local connection rule requires an asylum seeker who is dispersed to Cardiff to apply
for local authority housing only in Cardiff at the end of the 28 days after being granted
refugee status. If the individual decides to migrate onwards to London or Manchester,
they are regarded as being ‘intentionally homeless’ and cannot apply for local authority
housing for the first six months because their ‘local connection’ is with Cardiff”: ibid. at
14. In addition to these challenges, the brevity of the twenty-eight-day period has itself
sparked an increase in poverty and homelessness: K. Lyons, “‘Destitution is Routine’:
Refugees Face Homelessness even after Gaining Asylum,” Guardian, Sept. 8, 2017.

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 4. 4 n eces s i t i es o f life 611

The most broadly framed guarantee of access to the necessities of life is Art.
11 of the Economic Covenant.1696 Its inclusive nature is both a source of
strength and a challenge:

As befits such a grave matter as the very subsistence of life, the capacity of
Article 11 is wide and deep. But while this scope is both necessary and
desirable, it undoubtedly presents a challenge to encapsulate in an instru-
ment designed to bind parties by way of legal obligation.1697

Art. 11 establishes what is now understood to be an immediate obligation to

alleviate hunger, as well as a duty progressively to implement the right to an
adequate standard of living. Art. 12, addressed below,1698 focuses more specif-
ically on the intimately related right to physical and mental healthcare.1699
As earlier noted,1700 the rights in the Economic Covenant, including those
established by Arts. 11 and 12, explicitly inhere in “everyone.”1701 They are also
1696
Interestingly, the High Court of Ireland found such an obligation to be implied by the
right to seek asylum itself. “[T]he State accepts that it has a legal and moral responsibility
to shelter and give material support to destitute protection applicants . . . [I]t seems that
the legal obligation derives from the State’s primary legal obligation to facilitate applica-
tions for asylum . . . To refuse applicants shelter and food would prevent applications for
protection from being made and this would violate Ireland’s international legal obliga-
tions”: CA v. Minister for Justice and Equality, [2014] IEHC 532 (Ir. HC, Nov. 14, 2014),
at [9.4].
1697
B. Saul et al., The International Covenant on Economic, Social and Cultural Rights:
Commentary, Cases, and Materials (2014) (Saul, ICESCR Commentary), at 863.
1698
See Chapter 4.4.3.
1699
Art. 9, establishing the right of “everyone to social security,” has also been interpreted to
require the provision of healthcare and family support: see UN Committee on Economic,
Social and Cultural Rights, “General Comment No. 19: The Right to Social Security,” UN
Doc. E/C.12/GC/19, Feb. 4, 2008. “In monitoring states, the [Committee] has highlighted
the right of refugees in both developed and developing states and including asylum
seekers awaiting a decision”: Saul, ICESCR Commentary, at 674. Art. 9 has been relied
upon, for example, to insist that Albania “amend legislation on social welfare to ensure
that asylum seekers . . . have access to comprehensive integration programmes and social
assistance and services”: UN Committee on Economic, Social and Cultural Rights,
“Concluding Observations: Albania,” UN Doc. E/C.12/ALB/CO/2–3, Dec. 18, 2013, at
[14]. See generally Chapter 6.3.
1700
See Chapter 1.5.4 at note 401.
1701
For example, the Committee on Economic, Social and Cultural Rights has made clear that
“[t]he right to adequate housing applies to everyone. While the reference to ‘himself and
his family’ reflects assumptions as to gender roles and economic activity patterns com-
monly accepted in 1966 when the Covenant was adopted, the phrase cannot be read today
as implying any limitations upon the applicability of the right to individuals or to female-
headed households or other such groups”: UN Committee on Economic, Social and
Cultural Rights, “General Comment No. 4: The Right to Adequate Housing” (1991), UN
Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [6]. See also UN Committee on Economic,
Social and Cultural Rights, “General Comment No. 12: The Right to Adequate Food”
(1999), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [1]: “The human right to adequate
food is of crucial importance for the enjoyment of all rights. It applies to everyone; thus

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 612 4 r i gh t s of ref ug ees physic ally present

to be implemented without discrimination “of any kind as to . . . national or

social origin . . . or other status.”1702 Refugees, whatever their formal status,
must enjoy these rights without discrimination:

All people under the jurisdiction of the State concerned enjoy Covenant
rights. That includes asylum seekers and refugees, as well as other migrants,
even when their situation in the country concerned is irregular . . . [P]rotec-
tion from discrimination cannot be made conditional upon an individual
having a regular status in the host country.1703

In relation to the right to food, for example, the Committee on

Economic, Social and Cultural Rights has stressed that “any discrimination
in access to food, as well as to means and entitlements for its procurement,
on the grounds of race, color, sex, language, age, religion, political or other
opinion, national or social origin, property, birth or other status with the
purpose or effect of nullifying or impairing the equal enjoyment or exercise
of economic, social and cultural rights constitutes a violation of the

the reference in article 11.1 to ‘himself and his family’ does not imply any limitation upon
the applicability of this right to individuals or to female-headed households.”
1702
International Covenant on Economic, Social and Cultural Rights, 993 UNTS 3 (UNTS
14531), adopted Dec. 16, 1966, entered into force Jan. 3, 1976 (Economic, Social and
Cultural Covenant), at Art. 2(2). One commentator has argued that the enumerated
grounds on which discrimination is prohibited are exhaustive: A. Bayefsky, “The
Principle of Equality or Non-Discrimination in International Law,” (1990) Human
Rights Law Journal 1, at 5. The better position notes the clearly open-ended nature of
the reference to “discrimination of any kind as to . . . other status,” and concludes that the
list of prohibited grounds is illustrative: M. Craven, The International Covenant on
Economic, Social and Cultural Rights: A Perspective on its Development (1995) (Craven,
ICESCR Commentary), at 168. See also A. Chapman, “A ‘Violations Approach’ for
Monitoring the International Covenant on Economic, Social and Cultural Rights,”
(1996) 18 Human Rights Quarterly 23, at 54–55: “It is notable that in a world which
offers few protections of ‘illegal immigrants,’ the [Economic, Social and Cultural Rights]
Committee has disagreed with the interpretation of at least one government (the govern-
ment of Hong Kong) that asylum-seekers are not entitled to enjoy . . . rights in view of
their status as ‘illegal immigrants.’”
1703
UN Committee on Economic, Social and Cultural Rights, “Duties of States towards
Refugees and Migrants under the International Covenant on Economic, Social and
Cultural Rights,” UN Doc. E/C.12/2017/1, Mar. 13, 2017, at [3], [6]. Indeed, “a lack of
available resoures cannot be considered as an objective and reasonable justification for
difference in treatment ‘unless every effort has been made to use all resources that are at
the State party’s disposition in an effort to address and eliminate the discrimination, as a
matter of priority’”: ibid. at [5]. See also UN Committee on Economic, Social and Cultural
Rights, “General Comment No. 20: Non-discrimination in Economic, Social and Cultural
Rights” (2009), UN Doc. E/C.12/GC/20, July 2, 2009, at [30] (“The Covenant rights apply
to everyone including non-nationals, such as refugees [and] asylum seekers”); and UN
Committee on Economic, Social and Cultural Rights, “General Comment No. 15: The
Right to Water” (2002), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [16], noting the
duty to meet the needs of refugees for water on terms of equality with those of citizens.

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 4 .4 n e c es sit ies of life 613

Covenant.”1704 Similarly, “[t]he right to adequate housing applies to every-

one.”1705 Because of their discriminatory character, the decision of the
United Kingdom to provide refugees with less than the domestic standard
of what is needed to meet basic needs1706 as well as Belgium’s nationality-
based discrimination in access to accommodation1707 are in breach of their
duties under the Economic Covenant.
Similarly, because retrogression is presumptively in breach of the duty
progressively to implement rights,1708 Kenya1709 and Tanzania1710 may be
held to account under this standard for the starvation-induced repatriation
of refugees from their territory, as may countries such as Kyrgyzstan1711 in
which refugees felt no option but to leave when they were given grossly
inadequate access to food. Nor does a state meet its obligations under Art. 11
when an adequate standard of living is available only to refugees who renounce
other rights. The Bulgarian,1712 German,1713 and Irish1714 policies of meeting
basic needs only in the case of refugees who agree to stay in a reception center –
despite their right to enjoy internal freedom of movement once identity is
verified and a refugee claim duly lodged1715 – are examples of a policy that sets
an unlawful barrier to realization of Art. 11 duties.
On the other hand, because duties under the Economic Covenant are not
framed as obligations of result but rather as setting a duty of progressive
implementation,1716 there would be no breach of the Economic Covenant if
real logistical impossibility precluded the delivery of food and other essentials

1704
UN Committee on Economic, Social and Cultural Rights, “General Comment No. 12:
The Right to Adequate Food” (1999), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [18].
See also UN Committee on Economic, Social and Cultural Rights, “General Comment
No. 14: The Right to the Highest Attainable Standard of Health” (2000), UN Doc. HRI/
GEN/1/Rev.7, May 12, 2004, at [18]: “By virtue of article 2.2 and article 3, the Covenant
proscribes any discrimination in access to health care and underlying determinants of
health, as well as to means and entitlements for their procurement, on the grounds of
race, color, sex, language, religion, political or other opinion, national or social origin,
property, birth, physical or mental disability, health status (including HIV/AIDS), sexual
orientation and civil, political, social or other status, which has the intention or effect of
nullifying or impairing the equal enjoyment or exercise of the right to health.”
1705
UN Committee on Economic, Social and Cultural Rights, “General Comment No. 4: The
Right to Adequate Housing” (1991), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [6].
1706
See text at note 1682. 1707 See text at note 1680.
1708
See Chapter 1.5.4 at note 408.
1709
See text at note 1622. While the existence of a UNHCR offer of cash aid “voluntarily” to
repatriate in such circumstances was arguably a necessary condition, it remains that
Kenya had jurisdiction over the refugees and therefore liability under the Refugee
Convention.
1710
See text at notes 1620–1621. 1711 See text at note 1641. 1712 See text at note 1679.
1713
See text at note 1678. 1714 See text at note 1678. 1715 See Chapter 4.2.4.
1716
See Chapter 1.5.4 at note 405 ff.

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 614 4 r i g ht s o f re f u g e e s p hy s i c a l l y p r e s e n t

to refugees in remote parts of Honduras during the rainy season1717 or via

overly traveled narrow roads in Bangladesh.1718
Yet despite its fungibility, the duty of progressive implementation is subject
to the presumptive duty always to ensure the “core content” of every Covenant
right.1719 The Committee has specifically insisted on this duty in relation to the
right to shelter1720 and, most emphatically, the right to food:
In determining which actions or omissions amount to a violation of the
right to food, it is important to distinguish the inability from the unwill-
ingness of a State party to comply. Should a State party argue that resource
constraints make it impossible to provide access to food for those who are
unable by themselves to secure such access, the State has to demonstrate
that every effort has been made to use all the resources at its disposal in an
effort to satisfy, as a matter of priority, those minimum obligations. This
follows from article 2.1 of the Covenant, which obliges a State party to take
the necessary steps to the maximum of its available resources, as previously
pointed out by the Committee in its General Comment No. 3, paragraph
10. A State claiming that it is unable to carry out its obligation for reasons
beyond its control therefore has the burden of proving that this is the case
and that it has unsuccessfully sought to obtain international support to
ensure the availability and accessibility of the necessary food [emphasis
added].1721

The notion of core content provides a solid foundation from which to argue
that all states have a duty to provide refugees under their jurisdiction with the
necessities of life, including at least access to basic food, water, clothing, shelter,
and physical and mental healthcare.
If necessary to meet these responsibilities, poorer host countries are more-
over legally required to seek assistance from wealthier states.1722 Yet because
there is no reciprocal duty to in fact provide the needed assistance,1723
1717
See text at note 1623. 1718 See text at note 1624.
1719
See Chapter 1.5.4 at note 437 ff.
1720
“As recognized in the Global Strategy for Shelter and in other international analyses,
many of the measures required to promote the right to housing would only require the
abstention by the Government from certain practices and a commitment to facilitating
‘self-help’ by affected groups. To the extent that any such steps are considered to be
beyond the maximum resources available to a State party, it is appropriate that a request
be made as soon as possible for international cooperation in accordance with articles
11(1), 22 and 23 of the Covenant, and that the Committee be informed thereof”: UN
Committee on Economic, Social and Cultural Rights, “General Comment No. 4: The
Right to Adequate Housing” (1991), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [10].
1721
UN Committee on Economic, Social and Cultural Rights, “General Comment No. 12:
The Right to Adequate Food” (1999), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [17].
The Commission on Human Rights voted 52–1 to endorse the understanding of the right
to food set out in General Comment No. 12 as authoritative: UN Commission on Human
Rights Res. 2001/25, Apr. 20, 2001.
1722
See Chapter 1.5.4 at note 412. 1723 Ibid. at note 413 ff.

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 4 .4 n e c es sit ies of life 615

wealthier countries were not bound to assist Namibia to provide for the 20,000
Angolan refugees it hosted in the Osire refugee camp,1724 to respond to the
starvation of both refugees and nationals in South Sudan,1725 to fund the
World Food Program’s essential aid to Syrian refugees in the Middle
East,1726 or to reverse cuts to life-sustaining cereal rations to South Sudanese
refugees in Uganda.1727 While the aid ultimately given by Sweden and the
United States to provide for Angolan refugees in Namibia1728 was a commend-
able example of principled implementation of the Covenant, neither country
would have breached the Economic Covenant had it failed to respond.
The clearest duty on aid-giving states is to avoid discrimination in the provision
of assistance.1729 In light of this duty the decisions of donor states to cut critical aid
to Burundian refugees in Tanzania1730 and to Somali refugees in Kenya1731 in
order to redirect funds to meet the needs of less desperate refugees from Kosovo
arriving in European states1732 seem to fall afoul of the duty of non-discrimination.
Yet even this minimal constraint may be undermined by the practice of the
Human Rights Committee to afford states an exceedingly broad margin of
appreciation before a given resource allocation is deemed to be unreasonable
and hence potentially discriminatory.1733 To date, the Committee has given no
indication that it would find a state in breach because of a politically inspired
decision to shift aid resources from one group of refugees to another.
In contrast to the possible risk for refugees arising from the fluid duty of
progressive implementation under the Economic Covenant, the Covenant’s
authorization for developing countries in some circumstances to withhold eco-
nomic right from non-citizens1734 ought not to be an impediment for refugees to
secure access to the necessities of life. The Committee on Economic, Social and
Cultural Rights has made clear that “economic” rights are limited to those rights
“that enable a person to earn a living or that relate to that process,”1735 meaning

1724
See text at note 1627. 1725 See text at note 1625. 1726 See text at note 1613.
1727
See text at note 1614. 1728 See text at note 1612.
1729
See Chapter 1.5.4 at note 416 ff. 1730 See text at notes 1615–1617.
1731
See text at notes 1618–1619. 1732 See text at note 1618.
1733
See Chapter 1.5.5 at note 469 ff. The Committee on Economic, Social and Cultural Rights
has conceded that “[e]ach State Party is left with a certain margin of appreciation to
decide what measures it should adopt to progressively realize the rights under the
Covenant, provided such steps are deliberate, concrete and targeted as clearly as possible
towards meeting the obligations recognized in the Covenant”: UN Committee on
Economic, Social and Cultural Rights, “Duties of States towards Refugees and Migrants
under the International Covenant on Economic, Social and Cultural Rights,” UN Doc. E/
C.12/2017/1, Mar. 13, 2017, at [5].
1734
See Chapter 1.5.4 at note 432 ff.
1735
E. Dankwa, “Working Paper on Article 2(3) of the International Covenant on Economic,
Social and Cultural Rights,” (1987) 9 Human Rights Quarterly 230, at 240. See also Saul,
ICESCR Commentary, at 217.

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 616 4 ri g ht s o f re f u g e e s p hy s i c a l l y p r e s e n t

that even very poor states have a duty to enable refugees to secure the necessities of
life under Arts. 11 and 12.
Normally a state is considered to be in breach of its obligations under the
Economic Covenant only where there is evidence that it has prevented access
to a right, failed to stop private actions from denying access to a right,1736 or
neglected to facilitate efforts by individuals to secure their rights.1737 In all of
these cases, there is an underlying expectation of individual initiative which
allows the state’s duty to be conceived as secondary. The assumption of states
such as Canada,1738 Greece,1739 Norway,1740 Portugal,1741 and Sweden1742 that
asylum-seekers will ordinarily meet their own needs by earning money
through engagement in employment – which the government authorizes – is
therefore precisely in line with the spirit of the Economic Covenant.1743
Conversely, the Dutch system, under which asylum-seekers may work for no
more than twenty-four weeks each year,1744 is not oriented to meeting the
Covenant’s expectation that individuals be allowed to do what they can to meet
their own needs. As such, it – like the bars on employment imposed by
Germany on refugees in reception centers,1745 by Ireland’s prohibition on
refugees undergoing status verification engaging in work,1746 and the delays
in access to employment set by Spain1747 and Switzerland1748 – would breach

1736
On this issue, see Saul, ICESCR Commentary, at 872.
1737
See e.g. UN Committee on Economic, Social and Cultural Rights, “General Comment No.
12: The Right to Adequate Food” (1999), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at
[15]: “The right to adequate food, like any other human right, imposes three types or
levels of obligations on States parties: the obligations to respect, to protect and to fulfil. In
turn, the obligation to fulfil incorporates both an obligation to facilitate and an obligation
to provide. The obligation to respect existing access to adequate food requires States
parties not to take any measures that result in preventing such access. The obligation to
protect requires measures by the State to ensure that enterprises or individuals do not
deprive individuals of their access to adequate food. The obligation to fulfil (facilitate)
means the State must pro-actively engage in activities intended to strengthen people’s
access to and utilization of resources and means to ensure their livelihood, including food
security.” As Eide points out, “this is the most important aspect of the right to food and
other survival rights: not the State as provider, but as protector. This is a function similar
to the role of the State as protector in regard to civil and political rights: protecting the
right to life, to freedom from slavery and servitude, from violence and maltreatment by
third parties”: A. Eide, “Article 25,” in A. Eide et al. eds., The Universal Declaration of
Human Rights: A Commentary 385 (1992) (Eide, “Article 25”), at 388.
1738
See text at note 1666. 1739 See text at note 1667. 1740 Ibid. 1741 Ibid.
1742
Ibid.
1743
“[A]ccess to education and to employment are important channels for integration within
the host country and will reduce the dependence of refugees or migrants on public
support or private charity”: UN Committee on Economic, Social and Cultural Rights,
“Duties of States towards Refugees and Migrants under the International Covenant on
Economic, Social and Cultural Rights,” UN Doc. E/C.12/2017/1, Mar. 13, 2017, at [6].
1744
See text at note 1673. 1745 See text at note 1670. 1746 See text at note 1669.
1747
See text at note 1672. 1748 See text at note 1671.

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 4 .4 ne c es sit ies of life 617

Art. 11 of the Covenant if refugee claimants are not provided with alternative
means of support.1749 Nor may states lawfully impose bureaucratic hurdles
that they know indirectly undermine the ability in practice to survive through
work,1750 such as Malta’s insistence that potential employers of refugees secure
licenses to hire them,1751 or the “stop the clock” system in the United States
which can delay access to work for months or years.1752 Much less is it legal to
condition the ability to work on a refugee’s willingness to renounce other
human rights, including to freedom of movement and residence.1753
More generally, the South African Supreme Court of Appeal has determined
that the denial of the right to work can in some circumstances amount to
degrading treatment:

[W]here employment is the only reasonable means for the person’s

support other considerations arise. What is then in issue is not merely
a restriction upon the person’s capacity for self-fulfilment, but a restric-
tion upon his or her ability to live without positive humiliation and
degradation. For it is not disputed that this country, unlike some other
countries that receive refugees, offers no State support to applicants for
asylum . . .
Thus a person who exercises his or her right to apply for asylum, but
who is destitute, will have no alternative but to turn to crime, or to begging,
or to foraging. I do not suggest that in such circumstances the State has an
obligation to provide employment . . . but only that the deprivation of the
freedom to work assumes a different dimension when it threatens

1749
This conclusion is in line with the view of the English Court of Appeal that regulations
which denied some refugee claimants access both to work and to social support “neces-
sarily contemplate for some a life so destitute that . . . no civilised nation can tolerate it . . .
[S]ome basic provision should be made, sufficient for genuine claimants to survive and
pursue their claims . . . Parliament cannot have intended a significant number of genuine
asylum-seekers to be impaled on the horns of so intolerable a dilemma: the need either to
abandon their claims to refugee status or alternatively to maintain them as best they can
but in a state of utter destitution”: R v. Secretary of State for Social Security, ex parte Joint
Council for the Welfare of Immigrants, [1996] 4 All ER 385 (Eng. CA, June 21, 1996), per
Simon Brown L.J. at 401–402. As subsequently affirmed, “[t]he ratio of the Joint Council
case was . . . that asylum-seekers were being deprived of their right to appeal . . . and to
remain in the country meanwhile since the impugned regulations made those rights
nugatory; they inevitably not merely prejudiced but on occasion defeated those rights, and
made the exercise of those rights not merely difficult but totally impossible [emphasis in
original]”: Secretary of State for the Home Department v. Jammeh, [1999] Imm AR 1 (Eng.
CA, July 30, 1998), per Hobhouse L.J. at 7.
1750
“Pending a decision on their claim to be recognized as refugees, asylum seekers should be
granted a temporary status, allowing them to enjoy economic, social and cultural rights
without discrimination”: UN Committee on Economic, Social and Cultural Rights,
“Duties of States towards Refugees and Migrants under the International Covenant on
Economic, Social and Cultural Rights,” UN Doc. E/C.12/2017/1, Mar. 13, 2017, at [11].
1751
See text at note 1676. 1752 See text at note 1674. 1753 See Chapters 4.2.4 and 5.2.

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 618 4 r i gh t s of ref ug ees physic ally present

positively to degrade rather than merely to inhibit the realisation of the

potential for self-fulfilment.1754

In line with this reasoning, the refusal of Namibia to waive their food import
restrictions in order to allow international agencies to feed desperate refu-
gees1755 and of Bangladesh to grant UNHCR access to feed and maintain the
400,000 refugees living outside designated camps1756 were not only violations
of the core content of the right to food, but also examples of degrading
treatment.
But the obligations of states go beyond simply duties to respect and to
protect access to the necessities of life. The Committee on Economic, Social
and Cultural Rights has also recognized an explicit duty on states to take steps
to fulfill this right, particularly where marginalized individuals and social
groups are concerned.1757 Because vulnerable individuals and groups cannot
always meet their basic needs by independent action, state parties are under a
legal duty to take affirmative steps1758 to realize their rights:

States parties are also obliged to fulfil (provide) a specific right contained
in the Covenant when individuals or a group are unable, for reasons

1754
Minister of Home Affairs v. Watchenuka, (2004) 1 All SA 21 (SA SCA, Nov. 28, 2003), at [32],
per Nugent J.A. This reasoning has been applied to require the granting of trading licenses.
“[W]here persons have no other means to support themselves and will as a result be left
destitute, the constitutional right to dignity is implicated . . . Put differently, if, because of
circumstances, a refugee or asylum seeker is unable to obtain wage-earning employment and
is on the brink of starvation, which brings with it humiliation and degradation, and that
person can only sustain him- or herself by engaging in trade, that . . . person ought to be able
to rely on the constitutional right to dignity in order to advance a case for the granting of a
license to trade”: Somali Association of South Africa v. Limpopo Department of Economic
Development, Environment, and Tourism, Dec. No. 48/2014 (SA SCA, Sept. 26, 2014), at [43].
1755
See text at note 1627. 1756 See text at note 1628.
1757
“The approach of the Committee towards the realization of the rights in the Covenant is
marked by its insistence upon a process of equalization. As an initial step towards the
realization of the rights in the Covenant, States are required to identify the disadvantaged
sectors of the population. Those groups should be the focus of positive State action aimed
at securing the full realization of their rights”: Craven, ICESCR Commentary, at 159.
1758
The English Court of Appeal has thus recognized that refugee claimants “can as a result of
their predicament after they arrive in this country reach a state where they qualify [for
government support] because of the effect upon them of the problems under which they
are labouring. In addition to the lack of food and accommodation is to be added their
inability to speak the language, their ignorance of this country and the fact that they have
been subject to the stress of coming to this country in circumstances which at least
involve their contending to be refugees. Inevitably the combined effect of these factors
with the passage of time will produce one or more of the [qualifying] conditions [for
government support]”: R v. Hammersmith and Fulham London Borough Council, ex parte
M, (1997) 30 HLR 10 (Eng. CA, Feb. 17, 1997), at 20. This passage was described as
“uncontroversial” by the House of Lords in R (on the application of M) v. Slough Borough
Council, [2008] UKHL 52 (UK HL, July 30, 2008), at [21].

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 4.4 necessities of life 619

beyond their control, to realize that right themselves by the means at their
disposal.1759

In relation to the right to healthcare, for example, the Committee has noted
that

[v]iolations of the obligation to fulfil occur through the failure of States

parties to take all necessary steps to ensure the realization of the right to
health. Examples include . . . insufficient expenditure or misallocation of
public resources which results in the non-enjoyment of the right to health
by individuals or groups, particularly the vulnerable or marginalized.1760

Similarly, the duty to ensure access to housing requires “States parties [to] give
due priority to those social groups living in unfavourable conditions by giving
them particular consideration.”1761 Refugees are frequently a clear example of
such a group:

Asylum-seekers, refugees, and displaced persons do not have the same

opportunity as others to achieve an adequate standard of living on the
basis of their own efforts. They therefore require, to a larger extent than the
ordinary public, direct provisions, until conditions are established in
which they can obtain their own entitlements.1762

1759
UN Committee on Economic, Social and Cultural Rights, “General Comment No. 14:
The Right to the Highest Attainable Standard of Health” (2000), UN Doc. HRI/GEN/1/
Rev.7, May 12, 2004, at [37]. See also Committee on Economic, Social and Cultural
Rights, “General Comment No. 12: The Right to Adequate Food” (1999), UN Doc. HRI/
GEN/1/Rev.7, May 12, 2004, at [15]: “Finally, whenever an individual or group is unable,
for reasons beyond their control, to enjoy the right to adequate food by the means at their
disposal, States have the obligation to fulfil (provide) that right directly. This obligation
also applies for persons who are victims of natural or other disasters”; and UN Committee
on Economic, Social and Cultural Rights, “General Comment No. 15: The Right to
Water” (2002), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [37(b)], which defines
the core content of the right to water to include the obligation “[t]o ensure the right of
access to water and water facilities and services on a non-discriminatory basis, especially
for disadvantaged or marginalized groups.”
1760
UN Committee on Economic, Social and Cultural Rights, “General Comment No. 14:
The Right to the Highest Attainable Standard of Health” (2000), UN Doc. HRI/GEN/1/
Rev.7, May 12, 2004, at [52].
1761
UN Committee on Economic, Social and Cultural Rights, “General Comment No. 4: The
Right to Adequate Housing” (1991), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [11].
1762
Eide, “Standard of Living,” at 105. Thus, for example, the Committee on Economic, Social
and Cultural Rights has observed that “[w]hereas the right to water applies to everyone,
States parties should give special attention to those individuals and groups who have
traditionally faced difficulties in exercising this right, including . . . refugees [and]
asylum-seekers”: UN Committee on Economic, Social and Cultural Rights, “General
Comment No. 15: The Right to Water” (2002), UN Doc. HRI/GEN/1/Rev.7, May 12,
2004, at [16].

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 620 4 righ t s of r efug ee s ph y sica lly p r es en t

This direct obligation of states to provide the substance of basic survival

rights to the most vulnerable – what Eide termed an obligation of “last
recourse”1763 – inheres even when a state is faced with extraordinary resource
constraints.1764 It should moreover be interpreted to apply once a state
becomes aware of an imminent risk to vulnerable persons, not simply once
the necessities of life have already been denied. In interpreting a comparable
affirmative duty under European human rights law in a case that successfully
challenged the United Kingdom’s policy of denying income support to persons
who failed to claim refugee status immediately upon arrival,1765 the Supreme
Court of the United Kingdom insisted that
[i]t is not just a question of “wait and see” . . . [A]s soon as the asylum-
seeker makes it clear that there is an imminent prospect that a breach . . .
will occur because the conditions which he or she is having to endure are
on the verge of reaching the necessary degree of severity, the Secretary of
State has the . . . duty . . . to act to avoid it.1766

In sum, the rights set out in the Covenant on Economic, Social and Cultural
Rights – including to the necessities of life, and to physical and mental
healthcare – inhere in everyone under a state’s jurisdiction, including refugees.
1763
Eide, “Article 25,” at 388.
1764
“[T]he Committee underlines the fact that even in times of severe resources constraints,
whether caused by a process of adjustment, of economic recession, or by other factors, the
vulnerable members of society can and indeed must be protected by the adoption of
relatively low-cost targeted programmes”: UN Committee on Economic, Social and
Cultural Rights, “General Comment No. 3: The Nature of States Parties’ Obligations”
(1990), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [12]. See also UN Committee on
Economic, Social and Cultural Rights, “General Comment No. 12: The Right to Adequate
Food” (1999), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [28]: “Even where a State
faces severe resource constraints, whether caused by a process of economic adjustment,
economic recession, climatic conditions or other factors, measures should be undertaken
to ensure that the right to adequate food is especially fulfilled for vulnerable population
groups and individuals.”
1765
See text at notes 1683–1684.
1766
R (Limbuela) v. Secretary of State for the Home Department, [2005] UKHL 66 (UK HL,
Nov. 3, 2005), at [62], per Lord Hope. All of the judges speaking to the issue agreed that
“sleeping rough” was ordinarily persuasive evidence that that point had been reached:
ibid. at [9], [60], [72]. In the decision under review, the Court of Appeal had observed that
“[t]he obligation ‘to take measures’ [under the European Convention on Human Rights]
seems to me to imply more than simply acting as a long-stop in individual cases as they
arise. That may be sufficient if the alternative system of charitable support is able to cope
with the generality of cases, so that . . . suffering . . . is truly the exception. However, if on
the available information, the scale of the problem is such that the system is unable to
cope, then it is the responsibility of the State to take reasonable measures to ensure that it
can cope. How that is done, for example whether by direct support or by financial
assistance to charities working in the field, is a policy matter for the State”: R
(Limbuela) v. Secretary of State for the Home Department, [2004] EWCA Civ 540 (Eng.
CA, May 21, 2004), per Carnwath L.J. at [121].

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 4.4 ne c e s s i t i e s o f l i f e 621

Any discrimination in the allocation of the enumerated rights is automatically

a violation of the Covenant. The essential duty of states is to implement the
rights in the Covenant progressively and as a matter of priority, though it is
understood that genuine resource constraints may preclude full realization of all
rights immediately in some countries. Retrogression is, however, presumptively
in breach of the Covenant, as is the failure to implement rights in accordance
with human rights standards and with real accountability. Less developed
countries may determine the extent to which they will extend “economic” rights
to non-citizens, including refugees. But that flexibility does not apply to the core
content of the most basic rights set by the Covenant:1767 non-fulfillment of the
core content of these rights on economic grounds by even the poorest states is in
breach of the Covenant unless the government is able to demonstrate that it has
unsuccessfully made best efforts to secure international aid to implement these
rights, and has distributed whatever resources are available without discrimin-
ation. This obligation to respect the core content of basic rights in virtually all
circumstances includes a duty of affirmative implementation, at least where it is
foreseeable that individuals and groups are unlikely to be able to secure their
rights by autonomous effort.

4.4.2.1 Food
Turning first to the specific content of the right to food, paragraph 2 of Art. 11
establishes the right of everyone to be free from hunger as a “fundamental right,”
the only right so defined in either Covenant.1768 The most basic goal of ensuring
“that individuals have a right not to die from hunger and not to suffer (either
physically or mentally) from malnutrition”1769 is undisputed,1770 as is clear from
the view of the Committee on Economic, Social and Cultural Rights that “a State
party in which any significant number of individuals is deprived of essential
foodstuffs . . . is, prima facie, failing to discharge its obligations under the
Covenant.”1771

1767
Thus, “in so far as the Covenant establishes the rights of ‘everyone,’ non-nationals would
have a right to the enjoyment of the minimum core content of those rights . . . [I]n
practice, the Committee will censure situations where aliens enjoy few rights and are the
objects of exploitation”: Craven, ICESCR Commentary, at 174.
1768
P. Alston, “International Law and the Human Right to Food,” in P. Alston and
K. Tomasevski eds., International Law and the Human Right to Food 10 (1984) (Alston,
“Right to Food”), at 32.
1769
Ibid. at 13–14.
1770
“[A]ny proposed limitations on the right to food which could result in death by starvation
are clearly unacceptable. Apart from violating the right to food provisions, such limita-
tions would also violate the right to life which, according to the Human Rights
Committee, is ‘the supreme right from which no derogation is permitted even in times
of public emergency which threatens the life of the nation’”: ibid. at 21.
1771
UN Committee on Economic, Social and Cultural Rights, “General Comment No. 3: The
Nature of States Parties’ Obligations” (1990), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at

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 622 4 ri g ht s of r e f u g e es p hy s i c a l l y p r e s e n t

In accordance with the general approach to economic and social rights set
out above, the core right to food may be breached “through the direct action of
States or other entities insufficiently regulated by States,” including by “the
prevention of access to humanitarian food aid in internal conflicts or other
emergency situations.”1772 Moreover, “whenever an individual or group is
unable, for reasons beyond their control, to enjoy the right to adequate food
by the means at their disposal, States have the obligation to fulfil (provide) that
right directly.”1773 There is therefore little doubt that the Ethiopian diversion of
refugee food aid to rebel soldiers1774 was in breach of the core right to food.
There was, however, no comparable act of “prevention” of food delivery when
insecurity and fighting stymied South Sudan’s efforts to effectuate food deliv-
eries to refugees,1775 or when massive floods destroyed food rations intended
for Sahrawi refugees in Algeria.1776 Where failure to deliver the core content of
the right to food stems not from unwillingness but rather from simple inability
to comply with the Covenant, the state is not in breach so long as it is able to
show that every reasonable effort was taken to meet its duties.1777
The Committee has defined the core content of the right to food to include
“[t]he availability of food in a quantity and quality sufficient to satisfy the
dietary needs of individuals, free from adverse substances, and acceptable
within a given culture [as well as] [t]he accessibility of such food in ways that
are sustainable and that do not interfere with the enjoyment of other human
rights.”1778 The accessibility branch of this core duty means that failure to

[10]. See also UN Committee on Economic, Social and Cultural Rights, “General Comment
No. 12: The Right to Adequate Food” (1999), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at
[17]: “Violations of the Covenant occur when a State fails to ensure the satisfaction of, at the
very least, the minimum essential level required to be free from hunger.”
1772
UN Committee on Economic, Social and Cultural Rights, “General Comment No. 12:
The Right to Adequate Food” (1999), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [19].
The African Commission on Human and Peoples’ Rights observed that the core content
of the right to food could be violated by, for example, government actions which destroy
or contaminate food sources (or which allow private parties to do so), as well as by the
promotion of terror which poses a significant obstacle to the efforts of individuals to feed
themselves: Social and Economic Rights Action Center and Center for Economic and Social
Rights v. Nigeria, Dec. ACPHR/COMM/A044/1 (May 27, 2002), at [65], summarized at
(2002) 96(4) American Journal of International Law 937.
1773
UN Committee on Economic, Social and Cultural Rights, “General Comment No. 12:
The Right to Adequate Food” (1999), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [15].
In addition, however, all states “have a joint and individual responsibility . . . to cooperate
in providing disaster relief and humanitarian assistance in times of emergency, including
assistance to refugees and internally displaced persons”: ibid. at [38].
1774
See text at notes 1630–1631. 1775 See text at note 1625. 1776 See text at note 1626.
1777
Saul, ICESCR Commentary, at 872, drawing on UN Committee on Economic, Social and
Cultural Rights, “General Comment No. 12: The Right to Adequate Food” (1999), UN
Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [17].
1778
UN Committee on Economic, Social and Cultural Rights, “General Comment No. 12:
The Right to Adequate Food” (1999), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [8].

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 4.4 necessities of life 623

supervise food distribution adequately in camps where cultural norms dictate

that men should eat their fill before women and children are fed1779 is in breach
of the Covenant. The requirement that food be provided in a way that does not
infringe other human rights was violated by Nepal when its discriminatory
distribution system effectively kept women in abusive relationships.1780
Equally clearly, the requirement of dietary sufficiency suggests a failure to
meet Covenant requirements when niacin shortages in food caused
Mozambican refugees in Malawi to develop pellagra1781 and when Ethiopia’s
failure to provide vegetables and food containing adequate iron led to anemia
among refugee women and children.1782 And because cultural acceptability is
also an aspect of the core duty, Botswana’s refusal to provide refugees from the
Democratic Republic of Congo with either fish or meat1783 was also of doubtful
legality. Conversely, it is unlikely that the Covenant was breached when
Congolese refugees in Cameroon were forced to subsist on the local staple of
cassava due to the failure of the international community to provide culturally
appropriate food aid to assist an impoverished host country.1784
Second and more generally, states are under a duty to promote a more
complete right to “adequate food” under Art. 11(1). This branch of the right to
food goes beyond concerns of immediate access to quantities of food required
for survival,1785 focusing instead on the sufficiency of diet over time to main-
tain health and to enable individuals to lead a normal, active life,1786 including
the establishment of food security for the medium to long term.1787 This
broader right to adequate food is not, however, part of the core content of

1779
See text at note 1633. “Women are often denied equal enjoyment of their human rights, in
particular by virtue of the lesser status ascribed to them by tradition and custom, or as a
result of overt or covert discrimination”: UN Committee on Economic, Social and
Cultural Rights, “General Comment No. 16: The Equal Right of Men and Women to
the Enjoyment of all Economic, Social and Cultural Rights” (2005), UN Doc. E/C.12/
2005/4, at [5]. In the result, state parties have a duty “to ensure that women have access to
or control over means of food production, and actively to address customary practices
under which women are not allowed to eat until the men are fully fed, or are only allowed
less nutritious food”: ibid. at [28].
1780
See text at note 1634. 1781 See text at note 1645. 1782 See text at note 1642.
1783
See text at note 1643. 1784 See text at note 1647.
1785
“The right to adequate food . . . shall . . . not be interpreted in a narrow or restrictive sense
which equates it with a minimum package of calories, proteins and other specific
nutrients”: ibid at [6].
1786
Alston, “Right to Food,” at 22–23.
1787
“The notion of sustainability is intrinsically linked to the notion of adequate food or food
security, implying food being accessible for both present and future generations. The
precise meaning of ‘adequacy’ is to a large extent determined by prevailing social,
economic, cultural, climatic, ecological and other conditions, while ‘sustainability’
incorporates the notion of long-term availability and accessibility”: UN Committee on
Economic, Social and Cultural Rights, “General Comment No. 12: The Right to Adequate
Food” (1999), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [7].

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 624 4 rights of r efugees physically present

the right to food. A state therefore breaches its more general obligations under
Art. 11(1) only when it fails to give priority in the allocation of available
resources to the progressive and non-discriminatory realization of the
right.1788

4.4.2.2 Water
The Committee on Economic, Social and Cultural Rights has set out detailed
standards relating specifically to the right to water,1789 determined to be a
component of the duties set by both Arts. 11 and 12 of the Covenant.1790 In line
with its approach to the right to food, the right to water is defined as the
entitlement of “everyone to sufficient, safe, acceptable, physically accessible
and affordable water for personal and domestic uses.”1791 More specifically, it
has been determined that “[r]efugees and asylum-seekers should be granted
the right to water on the same conditions as granted to nationals.”1792
The core content of the right to water, specifically said to be opposable even
in relation to the poorest states,1793 includes a number of components of
frequent relevance to refugees. Most basically, it includes the duty “[t]o ensure
access to the minimum essential amount of water, that is sufficient and safe for
personal and domestic uses to prevent disease [and] [t]o ensure the right of
access to water and water facilities and services on a non-discriminatory basis,
especially for disadvantaged or marginalized groups.”1794 The provision to
1788
In practice, however, the Committee is reported not to have directed much of its attention
to non-core concerns. “That Committee members have only rarely requested informa-
tion about the nutritional status of the population, or about food quality and safety, may
be criticized as being unduly cautious. However, the Committee does face considerable
problems in assessing the level of enjoyment of the right to food even in so far as it relates
even to malnutrition”: Craven, ICESCR Commentary, at 309.
1789
UN Committee on Economic, Social and Cultural Rights, “General Comment No. 15:
The Right to Water” (2002), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004.
1790
Ibid. at [3]. It seems that the Committee on Economic, Social and Cultural Rights “has
taken the silence on the part of ICESCR states parties in the face of [the Committee’s]
criticisms of their domestic implementation (or violation) of the human right to water as
tacit assent by states to the fact that the ICESCR contains the human right to water”:
T. Soboka Bulto, “The Emergence of the Human Right to Water in International Human
Rights Law: Invention or Discovery?,” (2011) 12 Melbourne Journal of International Law
290, at 306.
1791
UN Committee on Economic, Social and Cultural Rights, “General Comment No. 15:
The Right to Water” (2002), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [2].
1792
Ibid. at [16(f)].
1793
“A State which is unwilling to use the maximum of its available resources for the
realization of the right to water is in violation of its obligations under the Covenant. If
resource constraints render it impossible for a State party to comply fully with its
Covenant obligations, it has the burden of justifying that every effort has nevertheless
been made to use all available resources at its disposal in order to satisfy, as a matter of
priority, the obligations outlined above”: ibid. at [41].
1794
Ibid. at [37(a), (b)].

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 4.4 necessities of life 625

refugees in western Ethiopia of less than 1 liter of water per day therefore
amounted to a presumptive breach of the Covenant. More explicitly, at least in
the case of vulnerable populations, states are required to ensure that there are
“a sufficient number of water outlets to avoid prohibitive waiting times; and
that are at a reasonable distance from the household”1795 – a standard not met
when there was only one borehole for all the Angolan refugees at the Maheba
camp in Zambia.1796 The duty to provide access to safe water was abridged
when Bangladesh left refugees no option but to drink water polluted by a
nearby latrine,1797 and when refugees living in abandoned warehouses in
Greece were forced to drink nitrate-contaminated water.1798
The core content of the right to water also comprises the obligation “[t]o ensure
[that] personal security is not threatened when having to physically access
water.”1799 This standard is clearly not met when state parties require refugee
women to collect water in circumstances that risk their physical security1800 or
their health by exposure to such diseases as malaria or yellow fever.1801

4.4.2.3 Clothing
The right to adequate clothing has not been authoritatively elaborated. In
drafting the predecessor Universal Declaration of Human Rights,1802 the specific
reference to adequate food and clothing was the result of a well-received
amendment by China to give substance to the notion of an “adequate standard
of living.”1803 The language appears simply to have been carried forward into the
Economic Covenant.1804 In practice, however, the right to clothing has been
treated as something of a “poor cousin” to the other components of Art. 11:

[T]he right to clothing has largely failed to maintain an independent

status, being either overlooked or effectively subsumed within the right
to shelter generally and the right to housing specifically. The need for
people to be adequately clothed has not diminished, rather the instance of
its lack is no longer considered widespread or critical, at least in relation to
the other deprivations that are typically endured by the poor and destitute.
Notably, while there now exist separate UN agencies for the rights of food,
water and housing, there is none for the right to clothing.1805

1795
Ibid. at [37(c)]. 1796 See text at note 1651. 1797 See text at note 1652.
1798
See text at note 1663.
1799
UN Committee on Economic, Social and Cultural Rights, “General Comment No. 15:
The Right to Water” (2002), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [37(d)].
1800
See Chapter 4.3 at note 1370. 1801 See text at note 1649.
1802
“Everyone has the right to a standard of living adequate for the health and well-being of
himself and of his family, including food, clothing, housing and medical care and
necessary social services”: Universal Declaration, at Art. 25(1).
1803
Eide, “Article 25,” at 394. 1804 Eide, “Standard of Living,” at 89.
1805
Saul, ICESCR Commentary, at 924.

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 626 4 righ t s of r e f ugee s ph y sica lly pr es en t

The right to adequate clothing was, however, briefly considered by the

Committee on Economic, Social and Cultural Rights in preparing its general
comment on the rights of persons with disabilities. The Committee interpreted
Art. 11 to require access to clothing that allows disabled persons “to function
fully and effectively in society,”1806 suggesting a purposive and contextualized
understanding of adequacy.1807 In line with this approach, Art. 11 should be
understood to require that refugees have access to clothing which is, for
example, suited to the climate and to the work and other roles which they
undertake in the host country. They should also not be compelled to wear
clothing which stigmatizes them as foreign to the host society, since this may
amount to an invitation to discrimination,1808 or which impedes their ability to
function in the asylum state. The right of refugees to choose to wear the
clothing of their society or country of origin is moreover logically protected
by the right to cultural expression under Art. 27 of the Civil and Political
Covenant1809 unless there are reasonable countervailing concerns, such as for
the safety and well-being of the refugee.1810

1806
“The right to adequate clothing also assumes a special significance in the context of
persons with disabilities who have particular clothing needs, so as to enable them to
function fully and effectively in society. Wherever possible, appropriate personal assist-
ance should also be provided in this connection. Such assistance should be undertaken in
a manner and spirit which fully respect the human rights of the person(s) concerned”:
UN Committee on Economic, Social and Cultural Rights, “General Comment No. 5:
Persons with Disabilities” (1994), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [33].
1807
The Committee has thus far declined to issue a general definition of “adequacy,” prefer-
ring to provide context-specific interpretive guidance (but the right to adequate clothing
has not yet been the subject of a general comment).
1808
In another context, the Committee has seen a commitment to non-discrimination as
relevant to the notion of “adequacy.” In considering the right to education under Art. 13,
the Committee held that “[t]he requirement that ‘an adequate fellowship system shall be
established’ should be read with the Covenant’s non-discrimination and equality provi-
sions; the fellowship system should enhance equality of educational access for individuals
from disadvantaged groups”: UN Committee on Economic, Social and Cultural Rights,
“General Comment No. 13: The Right to Education” (1999), UN Doc. HRI/GEN/1/Rev.7,
May 12, 2004, at [26].
1809
“In those cases where aliens constitute a minority within the meaning of article 27, they
shall not be denied the right, in community with other members of their group, to enjoy
their own culture, to profess and practise their own religion and to use their own
language. Aliens are entitled to equal protection by the law. There shall be no discrimin-
ation between aliens and citizens in the application of these rights. These rights of aliens
may be qualified only by such limitations as may be lawfully imposed under the
Covenant”: UN Human Rights Committee, “General Comment No. 15: The Position of
Aliens under the Covenant” (1986), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [7].
1810
In its decision in Bhinder v. Canada, HRC Comm. No. 208/1986, UN Doc. CCPR/C/37/
D/208/1986, decided Nov. 9, 1989, the Human Rights Committee considered the case of a
Sikh who, by reason of his religion, refused to wear safety headgear at work. Arguing that
any safety risk was confined to himself, the Sikh claimed his freedom of religion was
violated. The government countered that it was obliged by Art. 7(b) of the Economic

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 4.4 necessities of life 627

4.4.2.4 Housing
Like the right to food, the Committee has identified the duty to provide “basic
shelter and housing” as a core obligation of all state parties, whatever their
circumstances.1811 It has not, however, gone on specifically to elaborate the
substance of that minimum obligation, except in a negative sense.1812 The
Committee determined in 1990 “that instances of forced eviction are prima
facie incompatible with the requirements of the Covenant and can only be
justified in the most exceptional circumstances, and in accordance with the
relevant principles of international law,”1813 and subsequently developed this
position in a free-standing general comment.1814 Forced eviction is to be an
option of last resort,1815 carefully regulated by law,1816 and “should not result

Covenant to ensure a safe working environment for all. In dismissing the claim as
inadmissible, the Human Rights Committee held that “[i]f the requirement that a hard
hat be worn is seen as a discrimination de facto against persons of the Sikh religion . . .
then, applying criteria now well established in the jurisprudence of the Committee, the
legislation requiring that workers in federal employment be protected from injury and
electric shock by the wearing of hard hats is to be regarded as reasonable and directed
towards objective purposes that are compatible with the Covenant”: ibid. at [62].
1811
UN Committee on Economic, Social and Cultural Rights, “General Comment No. 3: The
Nature of States Parties’ Obligations” (1990), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004,
at [10]. See generally Chapter 1.4.5 at note 437.
1812
For example, the Committee has criticized the housing of refugees and migrants “in
geographically segregated areas”: UN Committee on Economic, Social and Cultural
Rights, “Duties of States towards Refugees and Migrants under the International
Covenant on Economic, Social and Cultural Rights,” UN Doc. E/C.12/2017/1, Mar. 13,
2017, at [14].
1813
UN Committee on Economic, Social and Cultural Rights, “General Comment No. 3: The
Nature of States Parties’ Obligations” (1990), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004,
at [18].
1814
UN Committee on Economic, Social and Cultural Rights, “General Comment No. 7: The
Right to Adequate Housing (Forced Evictions)” (1997), UN Doc. HRI/GEN/1/Rev.7,
May 12, 2004. Interestingly, the African Commission on Human and Peoples’ Rights
relied on General Comment No. 7 in a complaint brought on behalf of the people of
Ogoniland against Nigeria: Social and Economic Rights Action Center and Center for
Economic and Social Rights v. Nigeria, Dec. ACPHR/COMM/A044/1 (May 27, 2002), at
[63], summarized at (2002) 96(4) American Journal of International Law 937.
1815
“States parties shall ensure, prior to carrying out any evictions, and particularly those
involving large groups, that all feasible alternatives are explored in consultation with the
affected persons, with a view to avoiding, or at least minimizing, the need to use force”:
UN Committee on Economic, Social and Cultural Rights, “General Comment No. 7: The
Right to Adequate Housing (Forced Evictions)” (1997), UN Doc. HRI/GEN/1/Rev.7,
May 12, 2004, at [13].
1816
“Although the Committee has indicated in its General Comment No. 3 (1990) that such
measures may not be indispensable in relation to all rights, it is clear that legislation
against forced evictions is an essential basis upon which to build a system of effective
protection . . . The legislation must also apply to all agents acting under the authority of
the State or who are accountable to it. Moreover, in view of the increasing trend in some
States towards the Government greatly reducing its responsibilities in the housing sector,

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 628 4 ri g h t s of r e f u g e es ph y s i c a l l y p r e s e nt

in individuals being rendered homeless or vulnerable to the violation of other

human rights.”1817 The right to be protected against forced eviction is more-
over specifically said to inhere in refugees and other involuntary migrants:

[T]he practice of forced evictions . . . also takes place in connection with

forced population transfers, internal displacement, forced relocations in
the context of armed conflict, mass exoduses and refugee movements. In
all of these contexts, the right to adequate housing and not to be subjected
to forced eviction may be violated through a wide range of acts or
omissions attributable to States parties. Even in situations where it may
be necessary to impose limitations on such a right, full compliance with
article 4 of the Covenant is required so that any limitations imposed must
be “determined by law” only insofar as this may be compatible with the
nature of these [i.e. economic, social, and cultural] rights and solely for the
purpose of promoting the general welfare in a democratic society.1818

As such, the decision of Venezuelan President Maduro to order the demolition

of the homes of Colombian refugees to compel their departure1819 was both a
breach of the Economic Covenant and an act of refoulement. Similarly, because
“[f]orced eviction and house demolition as a punitive measure are . . . incon-
sistent with the norms of the Covenant,”1820 Lebanon’s forced eviction of
several hundred Syrian refugees after the murder of a local woman1821 was
an unlawful act.
Beyond the core duty stringently to curb resort to forced eviction, the
affirmative content of the right to adequate housing “should not be interpreted
in a narrow or restrictive sense which equates it with, for example, the shelter
provided by merely having a roof over one’s head or views shelter exclusively as
a commodity. Rather it should be seen as the right to live somewhere in
security, peace and dignity.”1822 This fundamental standard was clearly not

States parties must ensure that legislative and other measures are adequate to prevent
and, if appropriate, punish forced evictions carried out, without appropriate safeguards,
by private persons or bodies”: ibid. at [9].
1817
Ibid. at [16]. 1818 Ibid. at [5]. 1819 See text at note 1660.
1820
UN Committee on Economic, Social and Cultural Rights, “General Comment No. 7: The
Right to Adequate Housing (Forced Evictions)” (1997), UN Doc. HRI/GEN/1/Rev.7,
May 12, 2004, at [12]. The Committee observes that this right is grounded not only in Art.
11 of the Economic Covenant, but also in “the Geneva Conventions of 1949 and Protocols
thereto of 1977 concerning prohibitions on the displacement of the civilian population
and the destruction of private property”: ibid.
1821
See text at note 1659.
1822
UN Committee on Economic, Social and Cultural Rights, “General Comment No. 4: The
Right to Adequate Housing” (1991), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [7].
The Committee has elaborated seven factors which are the benchmarks for compliance:
legal security of tenure; availability of services, materials, facilities, and infrastructure;
affordability; habitability; accessibility; location; and cultural adequacy: ibid. at Annex III,
at [6]–[8].

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 4.4 necessities of life 629

met when Kosovar refugees were left without shelter in Albania,1823 when
Jordanian officials gave refugees no option but to dig holes and cover them-
selves with plastic sheets after refusing to allow them entry,1824 or when Chad
left refugees awaiting registration to squat in the forest with no more than
flimsy huts as shelter.1825 Nor was secure access to housing available when
Pakistan effectively forced Afghan refugees to choose between living in a place
where their right to physical security could be respected (but where they would
be given no rations) or moving to a place where they were at risk (but would be
given food and other key supplies).1826 The “security, peace and dignity”
dimension of the right moreover means that the right to housing was also
infringed when Bangladesh ordered the placement of refugee tents in areas
known to be frequented by elephants, resulting in deaths by trampling.1827
The “adequacy” of housing is moreover determined not only “by social,
economic, cultural, climatic, ecological and other factors,”1828 but also by
reference to legal security of tenure, the availability of facilities and infrastruc-
ture, affordability, habitability, accessibility, location, and cultural
adequacy.1829 The obligation of states to take affirmative action to ensure
access to adequate housing applies with particular stringency in relation to
marginalized or disadvantaged individuals and groups.1830 This standard was
not met when chronic housing shortages in Greece led refugees to seek shelter
in abandoned buildings and warehouses, sometimes for years,1831 or when Iraq
left Syrian refugees to squeeze into a manifestly inadequate number of tents,
leading to severe sanitation issues.1832 Nor was it respected when France failed
to find shelters for refugees early in 2017, leading to deaths by freezing.1833
Among the matters most vital to refugees, adequate shelter

must contain certain facilities essential for health, security, comfort and
nutrition. All beneficiaries of the right to adequate housing should have
sustainable access to natural and common resources, safe drinking water,

1823
See text at note 1655. 1824 See text at note 1656. 1825 See text at note 1658.
1826
See text at note 1640. 1827 See text at note 1657.
1828
UN Committee on Economic, Social and Cultural Rights, “General Comment No. 4: The
Right to Adequate Housing” (1991), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [8].
1829
Ibid. at [8(a)–(g)]. The Committee’s general comment specifically endorses the conclu-
sion of the Commission on Human Settlements and the Global Strategy for Shelter that
“[a]dequate shelter means . . . adequate privacy, adequate space, adequate security,
adequate lighting and ventilation, adequate basic infrastructure and adequate location
with regard to work and basic facilities – all at a reasonable cost”: ibid. at [7].
1830
“States parties must give due priority to those social groups living in unfavourable
conditions by giving them particular consideration. Policies and legislation should
correspondingly not be designed to benefit already advantaged social groups at the
expense of others”: UN Committee on Economic, Social and Cultural Rights, “General
Comment No. 4: The Right to Adequate Housing” (1991), UN Doc. HRI/GEN/1/Rev.7,
May 12, 2004, at [11].
1831
See text at note 1798. 1832 See text at note 1662. 1833 See text at note 1689.

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energy for cooking, heating and lighting, sanitation and washing facilities,
means of food storage, refuse disposal, site drainage and emergency
services.1834

It must also be habitable, in the sense that it provides the inhabitants “with
adequate space and protect[s] them from cold, damp, heat, rain, wind or other
threats to health, structural hazards, and disease vectors. The physical safety of
occupants must be guaranteed as well.”1835 These standards were not met when
Mexico forced up to fifteen Central American refugees to share a single small
housing unit,1836 when Uganda provided refugees with so few latrines that they
were compelled to defecate outside1837 or when Greece left refugees in tent
cities to contend with sewage overflows and wild snakes in bathrooms.1838 The
decision of Médecins Sans Frontières to withdraw from serving refugees at an
Italian reception center in protest over the extremely unsanitary conditions
there1839 similarly attests to the extent to which refugees – even in wealthy
countries – are at times forced to contend with woefully inadequate housing.
Nor was the duty to ensure access to housing that is adequate in the sense of
ensuring access to facilities essential for health and security respected when the
United Kingdom dispersed refugees to remote areas far from medical, psycho-
logical, and other basic support services.1840 The adequacy of housing also
requires that account be taken of psychological impacts. Thus, in a case in
which a refugee complained that the public housing assigned exacerbated her
post-traumatic stress disorder because it was reminiscent of the prison she had
endured before fleeing to seek asylum, the UK Supreme Court rightly insisted
on an assessment that would “consider[] her mental state against the back-
ground of her imprisonment in Iran.”1841

4.4.3 Access to Healthcare

In thinking about how best to secure the necessities of life for refugees, it is
critical to focus on the interrelationship between food, shelter, and health. As
David Keen cogently observed,

Filling the refugees’ bowls may not keep them alive. Typically, it is not
simply hunger that kills refugees, but a complicated interaction between
hunger and disease. Disease prevention and treatment has a critical role to
play. This need not cost the earth. In fact, simple health initiatives can save
more lives than high-tech medical treatments – in part because they focus

1834
UN Committee on Economic, Social and Cultural Rights, “General Comment No. 4: The
Right to Adequate Housing” (1991), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [8(b)].
1835
Ibid. at [8(d)]. 1836 See text at note 1661. 1837 See text at note 1664.
1838
See text at note 1663. 1839 See text at note 1665. 1840 See text at note 1692.
1841
Poshteh v. Royal Borough of Kensington and Chelsea, [2017] UKSC 36 (UK SC, Feb. 14,
2017), at [39].

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 4 .4 n e c es sit ies of life 631

on prevention and in part because they can reach much larger

numbers.1842

In one particularly tragic case, the leading cause of death among children
under the age of five in Tanzania’s Lukole refugee camp was found to be
acute respiratory tract infection. UNHCR’s medical coordinator determined
that the children’s respiratory infections were the result of exposure to the cold,
which usually took place because mothers who needed to go farming early in
the morning were forced to take their children with them due to a lack of
alternative care.1843
Successful refugee primary healthcare initiatives, such as that undertaken in
Somalia during the late 1980s, therefore focus on providing food, water, and
shelter, as well as on immunizing refugees against common diseases, and
treating at least the most prevalent post-flight health concerns.1844 Thailand
extended access to its national health service to all persons in its territory
regardless of status, ensuring that refugees received the same services as
citizens.1845 Some asylum countries have been especially quick to respond to
the need of refugees for access to medical care. For example, when confronted
with millions of Afghan refugees, Iranian authorities wisely minimized the risk
of epidemic by mobilizing doctors and medicine to treat the refugees for
malaria, tuberculosis, and other diseases upon arrival, and by granting them
completely free access to their own hospitals.1846
In stark contrast, until 2009 Botswana deliberately withheld access to HIV
treatment from non-citizens, including refugees, on the basis that such a
program “would attract more refugees to the country, and they were already
1842
Keen, Right to Life, at 20. 1843 (2001) 86 JRS Dispatches (Feb. 3, 2001).
1844
N. Van Hear and B. Harrell-Bond, “Refugees and Displaced People: Health Issues,” in UN
Institute for Training and Research ed., The Challenge of African Disasters (1991) (Van
Hear and Harrell-Bond, “Health Issues”), at 69. See also World Health Organization and
UNICEF, Primary Health Care (1978) and UNHCR, Handbook for Emergencies (1982).
1845
W. Yan, “Only One Country Offers Universal Health Care to all Migrants,” National
Public Radio, Mar. 31, 2016.
1846
A. Billard, “Afghan Refugees: Health the Number One Concern,” (1986) 26 Refugees 12.
Immunization efforts were pursued in other areas as well, albeit with mixed results:
“Tibetan refugees in India were provided routine childhood immunizations according to
the national EPI [expanded program on immunization] schedule of the India Ministry of
Health. The program reported challenges in delivery of vaccine to the target population,
with less than half of the Tibetan refugee children reported as fully vaccinated. As a
solution to improve routine immunization coverage among displaced populations, the
Macedonian Ministry of Health delivered vaccines to Albanian Kosovar refugees living in
camps and the surrounding communities through weekly mobile immunization clinics.
In Guinea, more than 90% of Liberian and Sierra Leonean refugee mothers knew about
tetanus vaccination during pregnancy, though only 11–42% utilized the free antenatal
care in government facilities sponsored by UNHCR”: E. Lam et al., “Vaccine-Preventable
Diseases in Humanitarian Emergencies among Refugee and Internally-Displaced
Populations,” (2011) 11(11) Human Vaccines & Immunotherapeutics 2627, at 2633.

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 632 4 ri g ht s of re f u g e e s p hy s i c a l l y p r e s e n t

struggling to provide treatment to their own people.”1847 The 16,200 refugees

in Uganda’s Kyaka II camp had access to only a single doctor, with emergency
surgical facilities some 140 kilometers away.1848 Shortages of drugs and other
medical supplies were also prevalent in refugee camps inside Kenya;1849 the
failure to immunize refugees in 2009 resulted in outbreaks of H1N1/A, polio,
and measles among those in the Dadaab camps.1850 In 2014, South Africa
enacted guidelines requiring non-citizens – including refugees and asylum-
seekers – to pay a means-tested fee before being treated.1851 The introduction
of user fees on services by Jordan for those living outside refugee camps
required many refugees to pay the much higher “foreigner’s rate” for access
to medical services.1852

1847
Providers were quick to point out the flaws in this justification: “Botswana hosts the
smallest number of refugees in the region, and has one of the largest ARV programmes.
Neighbouring South Africa, Zambia and Namibia have all extended ARV access to their
refugee populations, while other countries in the region provide access on an unofficial
basis”: “HIV Treatment for Refugees, but for How Long?” IRIN News, July 7, 2010; see
also “No Refuge from HIV/AIDS in Dukwi Camp,” IRIN News, June 12, 2006. Although
treatment was extended to refugees in 2009, its continued availability is subject to the
availability of funding by the United States (“HIV Treatment for Refugees, but for How
Long?” IRIN News, July 7, 2010); as of June 2014, such funding was confirmed for
extension for an additional five years: G. Williams, “Refugees have to Abide by Laws –
Makgonatsotlhe,” Botswana Daily News, June 22, 2014.
1848
“For emergency services such as caesarean sections, minor surgery and blood transfu-
sions, patients must go to Kyegegwa Health Centre 15km away. Patients requiring major
surgery are referred to Fort Portal, a government hospital about 140km from the
settlement. Because Kyaka II sprawls over 209sqkm, some residents end up walking for
hours to reach the facilities. Moreover, there is only one ambulance serving the whole
settlement, complicating and delaying emergency services”: “One Doctor for 16,200
Refugees,” IRIN News, Mar. 11, 2010.
1849
“Forgotten Refugees Face Epidemics, Food Cuts,” IRIN News, June 22, 2006; “Where Life
can be Brutal and Short,” IRIN News, Dec. 18, 2009.
1850
“Where Life can be Brutal and Short,” IRIN News, Dec. 18, 2009.
1851
“National health policy guarantees asylum seekers, refugees and undocumented migrants
from other SADC (Southern African Development Community) countries, the same
rights to treatment at public sector hospitals as South African citizens. They are supposed
to pay only what they can afford, based on their income. However, last August, Gauteng’s
provincial health department distributed a draft set of guidelines for managing non-
South African patients that appears to have sowed confusion among healthcare providers
and resulted in patients . . . being denied critical care. The root of the confusion seems to
stem from the guidelines’ definition of foreign patients as including refugees and asylum
seekers. Such patients, according to the guidelines, should be charged in full before being
treated. Lower down, it lists refugees and asylum seekers (but not SADC citizens) as
among the categories of foreign patients who should in fact be charged according to
income means testing”: K. Siegfried, “South Africa’s Health System Shuns Asylum
Seekers,” Oct. 31, 2014.
1852
“Between 2011 and November 2014, Syrians with MoI [Ministry of Interior] service cards
could access health care in Ministry of Health facilities for free, and were treated in the
same way as insured Jordanians. In November 2014, the government changed its policy

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 4.4 n ecessities of life 633

Even when healthcare is available in principle, it may be provided in ways

that fail to take account of linguistic, cultural, and social barriers. For example,
the failure of Turkish hospital call centers to offer services in Arabic has made it
difficult for Syrian refugees even to secure an appointment.1853 In contrast,
Tanzania’s decision to offer cholera immunization in the evening hours to
Muslim refugees observing Ramadan contributed to the program’s realization
of a coverage rate of 93 percent.1854
The health needs of women refugees are perhaps most frequently neglected. In
order to secure some income, urban refugee women in Kenya often turn to
prostitution.1855 Yet Kenya’s HIV policy guarantees free services only to those
with permanent resident status, effectively denying treatment to urban refu-
gees.1856 Female Afghan refugees in Pakistan were unable to visit doctors in public
health units because of the need to respect purdah rules (requiring the seclusion of
females). Instead, a male relative was sent to explain the female’s ailment to a
doctor.1857 In Lebanon, Syrian refugee women seeking antenatal care were faced
with an impossible dilemma: with humanitarian field hospitals prohibited by the
government,1858 refugees unable to pay for services at public hospitals and clinics
faced the confiscation of identity papers or the detention of newborns.1859

and required Syrian refugees holding MoI cards to pay the same rates as uninsured
Jordanians. Syrian refugees with MoI cards therefore are still partly subsidized by the
state and have to pay around 35–60% of the user fees paid by other foreigners in Jordan.
However, Syrians without MoI service cards are treated like other foreigners accessing
public services and required to pay a ‘foreigners rate,’ which is up to 60% higher than the
uninsured Jordanian rate”: Amnesty International, “Living on the margins: Syrian refu-
gees in Jordan struggle to access health care,” Mar. 2016, at 18; see also ibid. at 5–6.
1853
“The language barrier remains the predominant problem encountered by asylum seekers
in seeking to access . . . health care services. Hospitals in Turkey give appointments to
patients over the telephone. Since hospital appointment call centres do not serve pro-
spective patients in any language other than Turkish, foreign nationals need the assist-
ance of a Turkish speaker already at appointment stage. There is no nationwide system
for the provision of interpretation assistance to international protection applicants and
beneficiaries”: AIDA, “Country Report: Turkey 2018” (2019), at 72, www.asylumineu
rope.org/reports/country/turkey, accessed Feb. 10, 2020.
1854
UNHCR, “More than 100,000 refugees vaccinated against cholera in Tanzania,” June 26,
2015.
1855
“Illegal Refugees Miss Out on HIV Services,” IRIN News, Apr. 8, 2010.
1856
Ibid.; see also S. Pavanello et al., “Hidden and Exposed: Urban Refugees in Nairobi,” Mar.
2010, at 25–26.
1857
US, “Living Conditions,” at 51. In response to this problem, a system of home visits by
“lady health visitors” was successfully established: D. Wulf, Refugee Women and
Reproductive Health Care: Reassessing Priorities (1994), at 41.
1858
G. Samari, “The Response to Syrian Refugee Women’s Health Needs in Lebanon, Turkey
and Jordan and Recommendations for Improved Practice,” Humanity in Action, 2015;
see also T. Karas, “For Refugees in Lebanon, Giving Birth comes at a High Price,” Refugees
Deeply, July 7, 2017.
1859
T. Karas, “For Refugees in Lebanon, Giving Birth comes at a High Price,” Refugees Deeply,
July 7, 2017.

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 634 4 ri g ht s of re f u g e es p hy s i c a l l y p r e s e n t

Access to healthcare also varies considerably for refugee claimants across

developed states. Some countries, including France,1860 Italy,1861 and
Norway,1862 provide refugees with full access to their national healthcare
systems. While Canadian policy was traditionally to provide access to health-
care only once a refugee was found eligible to file a protection claim, it began
providing access upon arrival in 2017 due to months-long delays in eligibility
interviews.1863 Britain in principle provides healthcare to refugee claimants,
but hospitals have at times charged for services from which asylum-seekers
should be exempt, and have at times even refused treatment.1864 In Germany,
access to public health services is granted mainly for emergencies.1865 Despite
the enactment of the Affordable Care Act in the United States, the level of care
afforded asylum-seekers is left to the discretion of each state.1866 Nor are

1860
Forum Réfugiés – Cosi, “Health Care: France,” Asylum Information Database, Apr. 26,
2017; see also European Network to Reduce Vulnerabilities in Health, “Legal Report on
Access to Healthcare in 17 Countries,” Nov. 15, 2016, at 40–41.
1861
AIDA, “Country Report: Italy 2018” (2019), www.asylumineurope.org/news/16-04-2019/
aida-2018-update-italy, accessed Feb. 20, 2020.
1862
European Network to Reduce Vulnerabilities in Health, “Legal Report on Access to
Healthcare in 17 Countries,” Nov. 15, 2016, at 101–102.
1863
L. Young, “Asylum Seekers get Health-Care Benefits First, Eligibility Questions Later,”
Global News, Aug. 23, 2017.
1864
M. Bulman, “Thousands of Asylum Seekers and Migrants Wrongly Denied NHS
Healthcare,” Independent, Apr. 16, 2017; J. Meikle, “Migrants on the NHS: ‘You’re
Targeted because you have an Accent,’” Guardian, Mar. 6, 2016. The confusion appears
to stem from the introduction in 2015 of charges for those patients with no leave to
remain in the United Kingdom: Immigration Act 2014, s. 38; National Health Service
(Charges to Overseas Visitors) Regulations 2015 No. 238, at Regulation 15. Although
refugees and asylum-seekers are explicitly exempted from such fees, additional require-
ments – firstly, that hospitals (rather than the NHS) verify patient eligibility for NHS
coverage, and secondly, that ineligible patients pay 150 percent of the estimated cost of
treatment upfront – have led to the denial of service to asylum-seekers lacking documen-
tation: see Regulations 2, 3, and 7 of the National Health Service (Charges to Overseas
Visitors) Regulations 2015 No. 238, as amended in 2017. For an overview of the effects of
these requirements, see Immigration Law Practitioners’ Association, “The National
Health Service (Charges to Overseas Visitors) (Amendment) Regulations 2017” (2017);
see also D. Gayle, “Rules Allowing Upfront Charges for Foreign Users of NHS Come into
Force,” Guardian, Oct. 23, 2017.
1865
“The [German] law restricts health care for asylum seekers to instances ‘of acute diseases
or pain,’ in which ‘necessary medical or dental treatment has to be provided including
medication, bandages and other benefits necessary for convalescence, recovery, or allevi-
ation of disease or necessary services addressing consequences of illnesses.’ The law
further contains a special provision for pregnant women and for women who have
recently given birth”: AIDA, “Country Report: Germany 2018” (2019), www.asylumineu
rope.org/reports/country/germany, accessed Feb. 20, 2020.
1866
“US refugee resettlement involves coordination of services between federal agencies,
nongovernmental organizations, and local service delivery organizations. As a result of
the substantial variability in state social services provided to refugees, resettlement
services have been described as a ‘lottery.’ Passage of the Patient Protection and

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 4.4 n ecessities of life 635

refugees in the United States exempted from most effects of the 1996 welfare
law reform, under which lawful immigrants have only limited access to health,
nutrition, and other public benefits.1867

Economic, Social and Cultural Covenant, Art. 12(1)

The States Parties to the present Covenant recognize the right of
everyone to the enjoyment of the highest attainable standard of
physical and mental health.

Art. 12 of the Economic Covenant is not, of course, a right to “be healthy,”

in the sense of imposing a duty to eradicate all disease or infirmity.1868 Art. 12
defines a more limited right, consisting of certain immediately applicable
freedoms from interference – for example, to non-interference with sexual
and reproductive choices, as well as not to be subjected to medical experimen-
tation1869 – and also an affirmative entitlement to a system of health protec-
tion which is both of good quality and respectful of cultural and individual

Affordable Care Act was intended to expand access to comprehensive health insurance
among vulnerable populations, particularly through the Medicaid program for eligible
adult refugees and health insurance marketplaces (exchanges) for those not eligible for
Medicaid. However, implementation of Medicaid expansion and the creation of
exchanges have varied markedly between states, resulting in unanticipated gaps in health
insurance access among refugees. The substantial variability in insurance premium costs
among state-based exchanges has been cited as further impeding access to health care”:
P. Agrawal and A. Venkatesh, “Refugee Resettlement Patterns and State-Level Health
Care Insurance Access in the United States,” (2016) 106(4) American Journal of Public
Health 662, at 662. See also National Conference of State Legislatures, “Immigrant
Eligibility for Health Care Programs in the United States,” Oct. 19, 2017; National
Conference of State Legislatures, “Chart of Immigrant Eligibility for Federal
Programs,” Feb. 24, 2014.
1867
William Branigin, “‘Chilling Effects’ seen from Welfare Reform: Caseload Drops Sharper
among Immigrants,” Washington Post, Mar. 9, 1999, at A-06. See generally T. Broder et
al., “Overview of Immigrant Eligibility for Federal Programs,” Dec. 2015. Refugees are,
however, eligible for Medicaid and the Children’s Health Insurance Program.
1868
A broader understanding of “health” is endorsed by the World Health Organization: see
Saul, ICESCR Commentary, at 978–979. But as the Committee on Economic, Social and
Cultural Rights has confirmed, “[i]n drafting article 12 of the Covenant, the Third
Committee of the United Nations General Assembly did not adopt the definition of
health contained in the preamble to the Constitution of WHO, which conceptualizes
health as ‘a state of complete physical, mental and social well-being and not merely the
absence of disease or infirmity’”: UN Committee on Economic, Social and Cultural
Rights, “General Comment No. 14: The Right to the Highest Attainable Standard of
Health” (2000), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [4]. Thus, “while the right-
holder’s claim encompasses sufficiency in a host of wider socio-economic determinants
of health . . . it is not a claim to assurance of the existential circumstances of being
healthy”: Saul, ICESCR Commentary, at 983.
1869
UN Committee on Economic, Social and Cultural Rights, “General Comment No. 14:
The Right to the Highest Attainable Standard of Health” (2000), UN Doc. HRI/GEN/1/
Rev.7, May 12, 2004, at [8].

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 636 4 ri g ht s of r e f u g e es p hy s i c a l l y p r e s e n t

concerns.1870 Art. 12(2) sets out a non-exhaustive list of steps to be taken by

states in implementing the affirmative dimensions of the right to health,
including the improvement of infant and child healthcare, environmental
and industrial hygiene, prevention and control of epidemics and disease,
and medical service in the event of sickness.1871
The affirmative element of the right to health is by and large subject
to the usual duty of progressive, non-discriminatory implementation. 1872
The Committee on Economic, Social and Cultural Rights has accord-
ingly held that “[t]he notion of ‘the highest attainable standard of health’
in article 12.1 takes into account both the individual’s biological and
socio-economic preconditions and a State’s available resources.”1873
State parties with the resources to implement the right to health thus
may not lawfully decide simply to refrain from taking the necessary
steps fully to implement Art. 12.1874 As a country with a mid-rank

1870
The elements of availability, accessibility, acceptability, and quality are defined in some
detail: ibid. at [12(a)–(d)].
1871
“The non-exhaustive catalogue of examples in article 12.2 provides guidance in defining
the action to be taken by States. It gives specific generic examples of measures arising
from the broad definition of the right to health contained in article 12.1, thereby
illustrating the content of that right”: ibid. at [13].
1872
See Chapter 1.5.4 at note 405 ff.
1873
UN Committee on Economic, Social and Cultural Rights, “General Comment No. 14:
The Right to the Highest Attainable Standard of Health” (2000), UN Doc. HRI/GEN/1/
Rev.7, May 12, 2004, at [9]. This flexibility has led two commentators to the perhaps
overstated conclusion that “the amount a nation can afford to spend on the pursuit of
health is what it chooses to spend”: P. Townsend and N. Davidson, “The Black Report:
Inequalities in Health” (1982), at 27. In fact, the Committee on Economic, Social and
Cultural Rights has made clear that “[t]he central obligation in relation to the Covenant is
for States parties to give effect to the rights recognized therein. By requiring Governments
to do so ‘by all appropriate means,’ the Covenant adopts a broad and flexible approach
which enables the particularities of the legal and administrative systems of each State, as
well as other relevant considerations, to be taken into account . . . But this flexibility
coexists with the obligation upon each State party to use all the means at its disposal to
give effect to the rights recognized in the Covenant”: UN Committee on Economic, Social
and Cultural Rights, “General Comment No. 9: The Domestic Application of the
Covenant” (1998), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [1]–[2]. Interestingly,
in interpreting the right to health found to be embedded in its domestic constitution’s
right to life, the Supreme Court of India has found resource constraints to be irrelevant:
Kapila Hingorani v. State of Bihar, [2005] InSC 35 (In. SC, Jan. 13, 2005). A somewhat
more cautious approach to this issue has been adopted by the Constitutional Court of
South Africa: Soobramoney v. Minister of Health of KwaZulu Natal, (1998) 1 SA 765 (SA
CC, Nov. 27, 1997).
1874
“A State which is unwilling to use the maximum of its available resources for the
realization of the right to health is in violation of its obligations under article 12”: UN
Committee on Economic, Social and Cultural Rights, “General Comment No. 14: The
Right to the Highest Attainable Standard of Health” (2000), UN Doc. HRI/GEN/1/Rev.7,
May 12, 2004, at [47].

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 4.4 necessities of life 637

economy,1875 Uganda presumptively breached this duty when it pro-

vided only one doctor to address the needs of the 16,200 refugees at
the Kyaka II camp.1876 Much less is it open to rich states1877 such as
Germany to deny refugees access to other than emergency health-
care,1878 nor to the United States to avoid its responsibility to treat
healthcare for refugees and others as an essential public service.1879
Indeed, the European Union’s requirement that refugee claimants
“receive the necessary health care which shall include, at least, emer-
gency care and essential treatment of illnesses and of serious mental
disorders” significantly understates the true extent of state parties’ obli-
gations at international law.1880 Nor may there be discrimination in the
design of healthcare systems in a way that sets up barriers for refugees
seeking essential medical services. The United Kingdom was thus
obliged to take effective remedial steps to ensure that the exemption of
refugees from overseas visitor fees for medical care1881 was clearly
understood and implemented in practice. In contrast, the long-standing
commitment of France, Italy, and Norway fully to enfranchise refugees
within their healthcare systems1882 shows real respect for what the
Covenant requires, as did Canada’s preparedness to amend its rules to
extend healthcare to refugees even before their admission to the status
assessment procedure1883 and the decision of Thailand to amend its laws
to extend national health services to all persons on its territory, whatever
their immigration status.1884
The progressive implementation standard does, of course, provide some-
what greater breathing room for poorer countries. Yet the ability of poorer
countries to invoke their economic circumstances to justify failing to provide
at least some core healthcare has been significantly circumscribed by the
decision of the Committee on Economic, Social and Cultural Rights that
“essential primary health care” is one of the four core entitlements set by the

1875
Uganda ranks eighty-sixth out of 190 states on gross domestic product ranked by
reference to purchasing power parity: International Monetary Fund, “Report for
Selected Country Groups and Subjects (PPP valuation of country GDP),” May 9, 2018.
1876
See text at note 1848. There is moreover a heightened duty to provide for the critical
healthcare needs of persons detained by a state: Malawi African Association et al. v.
Mauritania, Comm. No. 4/9 (AComHPR, May 11, 2000), at [122].
1877
“For those states whose resources are more abundant . . . the expectations are corres-
pondingly higher”: Saul, ICESCR Commentary, at 999.
1878
See text at note 1865. 1879 See text at notes 1866–1867.
1880
Directive 2013/33/EU of the European Parliament and of the Council laying down
standards for the reception of applicants for international protection (recast), June 26,
2013, at Art. 19(1); affirmed in CK v. Slovenia, Dec. No. C-578/16PPU (CJEU, Feb. 16,
2017), at [70].
1881
See text at note 1864. 1882 See text at notes 1860–1862. 1883 Ibid.
1884
See text at note 1845.

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Economic Covenant owed to all persons under a state’s jurisdiction.1885 Under

this understanding, the policies in Botswana1886 that denied HIV treatment to
refugees and other non-citizens1887 were in breach of obligations under the
Covenant. Much less can even dire circumstances justify the approach taken by
Lebanon, which reacted to the inability of refugees to pay for services at public
hospitals and clinics by confiscating identity papers and detaining children.1888
More generally, core obligations must always be implemented without
discrimination.1889 Indeed, the Committee on Economic, Social and Cultural
Rights has specifically determined that governments are under an “obligation
to respect the right to health by, inter alia, refraining from denying or limiting
equal access [to healthcare] for all persons, including . . . asylum-seekers and
illegal immigrants.”1890 This duty to provide access to core healthcare services
does not, however, require universal free healthcare – meaning that South
Africa’s decision to charge refugees a means-based fee for medical services1891
was in principle lawful. But because even the poorest states must respect the
duty of non-discrimination in access to healthcare, the more absolutist
Jordanian approach – in which refugees, whatever their means, are forced to

1885
See Chapter 4.4.2 at note 437 ff. 1886 See text at note 1847.
1887
The right to essential primary healthcare binds all state parties to “provide essential drugs,
as from time to time defined under the WHO Action Program on Essential Drugs”: UN
Committee on Economic, Social and Cultural Rights, “General Comment No. 14: The
Right to the Highest Attainable Standard of Health” (2000), UN Doc. HRI/GEN/1/Rev.7,
May 12, 2004, at [43(d)]. See also UN Committee on Economic, Social and Cultural
Rights, “Duties of States towards Refugees and Migrants under the International
Covenant on Economic, Social and Cultural Rights,” UN Doc. E/C.12/2017/1, Mar. 13,
2017, at [9]. The right to access new medicines may also be grounded in Art. 15(1)(b) of
the Economic Covenant which establishes the right of “everyone” to “enjoy the benefits of
scientific progress and its applications”: Economic Covenant, at Art. 15(1)(b).
1888
See text at notes 1858–1859.
1889
“While the Covenant provides for progressive realization and acknowledges the con-
straints due to the limits of available resources, it also imposes on States parties various
obligations which are of immediate effect. States parties have immediate obligations in
relation to the right to health, such as the guarantee that the right will be exercised
without discrimination of any kind (art. 2.2) and the obligation to take steps (art. 2.1)
towards the full realization of article 12. Such steps must be deliberate, concrete and
targeted towards the full realization of the right to health”: UN Committee on Economic,
Social and Cultural Rights, “General Comment No. 14: The Right to the Highest
Attainable Standard of Health” (2000), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at
[30]. Importantly, “access can . . . critically be denied through [both] direct and indirect
discrimination against particular sectors of society”: Saul, ICESCR Commentary, at 1007.
1890
UN Committee on Economic, Social and Cultural Rights, “General Comment No. 14:
The Right to the Highest Attainable Standard of Health” (2000), UN Doc. HRI/GEN/1/
Rev.7, May 12, 2004, at [34].
1891
See text at note 1851. The evidence of administrative confusion (see note 1851) in the
application of the guidelines, however, suggested that the government may not have fully
complied with its responsibility to operationalize the system in a way that complied with
its human rights obligations.

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 4.4 necessities of life 639

pay the significantly higher “foreigners’ rate” for healthcare unless able to
navigate a daunting set of administrative requirements to secure exempting
documentation1892 – is in contrast an example of impermissible discrimin-
ation, in addition to falling afoul of the Refugee Convention’s duty to exempt
refugees from insurmountable administrative requirements.1893
The Committee has also established what amounts to a policy of strict
scrutiny of another set of steps, defined as being of “comparable priority” to
the non-derogable duties within the core of the duty to provide all with
essential primary healthcare. These presumptive duties of immediate imple-
mentation include the provision of reproductive, pre-natal, and maternal
healthcare; immunization against prevalent diseases; the control of epidemic
and endemic diseases; and education and training on the prevention and
control of disease and on health and human rights more generally.1894 While
a state is not held to an absolute standard of achievement in relation to these
rights, non-implementation can be justified only on the basis of a true resource
insufficiency.1895 Kenya’s failure to immunize refugees against major polio and
measles outbreaks1896 was thus presumptively in breach of the Economic
Covenant, as was Lebanon’s prohibition on the establishment of humanitarian
field hospitals to meet refugee needs for antenatal and other care even as it
made it impossible for impoverished refugees to access public hospitals and
clinics.1897
Finally and most generally, the right to health requires all governments to
enact and implement a transparent and socially inclusive public health strat-
egy,1898 which must give priority to meeting the needs of vulnerable or
1892
See text at note 1852. 1893 See Chapter 3.2.3.
1894
“The Committee also confirms that the following are obligations of comparable priority:
(a) To ensure reproductive, maternal (pre-natal as well as post-natal) and child health
care; (b) To provide immunization against the major infectious diseases occurring in the
community; (c) To take measures to prevent, treat and control epidemic and endemic
diseases; (d) To provide education and access to information concerning the main health
problems in the community, including methods of preventing and controlling them; (e)
To provide appropriate training for health personnel, including education on health and
human rights”: UN Committee on Economic, Social and Cultural Rights, “General
Comment No. 14: The Right to the Highest Attainable Standard of Health” (2000), UN
Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [44].
1895
“If resource constraints render it impossible for a State to comply fully with its Covenant
obligations, it has the burden of justifying that every effort has nevertheless been made to
use all available resources at its disposal in order to satisfy, as a matter of priority, the
obligations outlined above”: ibid. at [47]. See generally UN Committee on Economic,
Social and Cultural Rights, “An Evaluation of the Obligation to Take Steps to the
‘Maximum of Available Resources’ under an Optional Protocol to the Covenant,” UN
Doc. E/C.12/2007/1, Sept. 21, 2007, at [8].
1896
See text at note 1850. 1897 See text at notes 1858–1859.
1898
“Perhaps the most abiding message . . . is . . . the insistence on what might be called good
governance. States must recognize the right to health in their political and legal systems,
are required to institute national health care policies of universal application, establish

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 640 4 r ights of r efugees p hysically present

marginalized groups.1899 Somalia’s commitment to treating refugees for key

post-flight health concerns,1900 Iran’s mobilization of doctors to immunize
refugees immediately upon arrival,1901 and Tanzania’s preparedness to time
the availability of cholera vaccine administration so that those Muslim refugees
observing Ramadan were able to benefit from the program1902 are examples of
sound practice that respects the importance of giving priority to meeting the
needs of refugees and other marginalized groups.
In contrast, Turkey’s unwillingness to provide Syrian refugees with the
ability to make medical appointments in Arabic1903 was a policy at odds
with this duty to enfranchise the disadvantaged.1904 Perhaps most import-
ant, the special duty to enfranchise the marginalized leaves no room to
argue that the right to healthcare is respected when little or no attention
is given to the specific reproductive and other health needs of women.
There was thus a clear duty on Pakistan to make female doctors available
to female Afghan refugees who otherwise were culturally barred from any
direct access to healthcare.1905 And Kenya’s denial of HIV-related services
to urban refugee women engaged in sex work1906 was an especially
invidious breach of Art. 12 given the gravity of the risk faced by these
extremely marginalized refugees.

appropriate institutions to manage and dispense health care, and regulate third-party
health providers, especially following privatization or the establishment of public-private
partnerships in the sector”: Saul, ICESCR Commentary, at 1001–1002.
1899
“[T]hese core obligations include at least the following obligations . . . (f) To adopt and
implement a national public health strategy and plan of action, on the basis of epidemio-
logical evidence, addressing the health concerns of the whole population; the strategy and
plan of action shall be devised, and periodically reviewed, on the basis of a participatory
and transparent process; they shall include methods, such as right to health indicators
and benchmarks, by which progress can be closely monitored; the process by which the
strategy and plan of action are devised, as well as their content, shall give particular
attention to all vulnerable or marginalized groups”: UN Committee on Economic, Social
and Cultural Rights, “General Comment No. 14: The Right to the Highest Attainable
Standard of Health” (2000), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [43(f)].
1900
See text at note 1844. 1901 See text at note 1846. 1902 See text at note 1854.
1903
See text at note 1853.
1904
“[A]dequate information should be made available in the languages commonly spoken by
migrants in the host country, in order to ensure that such situations do not result in
migrants avoiding seeking and obtaining health care”: UN Committee on Economic,
Social and Cultural Rights, “Duties of States towards Refugees and Migrants under the
International Covenant on Economic, Social and Cultural Rights,” UN Doc. E/C.12/
2017/1, Mar. 13, 2017, at [12].
1905
See text at note 1857.
1906
See text at note 1856. “Sex workers remain subject to stigma and marginalization”:
“Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the
Highest Attainable Standard of Physical and Mental Health,” UN Doc. A/HRC/14/20,
Apr. 27, 2010, at [27].

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 4.5 p ro pe r ty rig ht s 641

4.5 Property Rights

On occasion, refugees may be the victims of confiscation of their property. For
example, refugee-specific legislation in Swaziland and Tanzania provides for
the discretionary confinement and slaughter of any animal brought into the
country by a refugee.1907 The net proceeds, if any, from the sale of the
slaughtered animal are to be paid to the refugee if possible, and otherwise
used for the support of refugees in general.1908 The laws of both of these
countries also provide that any vehicle in which a refugee arrives may be
commandeered by authorities to move refugees or stores or equipment for
their use. No compensation is payable either for use of the vehicle, or for any
consequential damage to it.1909
Several European countries have authorized the seizure of cash and other assets
from refugees arriving to seek protection as a means of financing the cost of
hosting refugees. Danish law allows the police to search refugees and to confiscate
any cash or asset worth more than about $1,500, with the exception of wedding
rings and other items of sentimental value.1910 Switzerland seizes only cash.1911 In
1907
Tanzania, Refugees Act 1998, at Art. 13(1); Swaziland, The Refugees Control Order 1978,
at Art. 8(1). Similar laws in Uganda and Zambia were repealed in 2006 and 2017
respectively: see Uganda, Refugee Act 2006, repealing the Control of Alien Refugees
Act of 1960; Zambia, The Refugee Act 2017, repealing the Refugees (Control) Act of 1970.
1908
Tanzania, Refugees Act 1998, at Art. 13(2)–(3); Swaziland, The Refugees Control Order
1978, at Art. 8(2). This procedure is distinct from the right of authorities to slaughter
diseased animals, in which case no compensation is payable to the refugee: Tanzania,
Refugees Act 1998, at Art. 13(4).
1909
Tanzania, Refugees Act 1998, at Art. 14; Swaziland, The Refugees Control Order 1978, at
Art. 9.
1910
See Danish Aliens Act, as amended by Act No. 102 of Feb. 3, 2016. Even prior to the
enactment of the “Jewelry Law,” the Aliens Act “stated that asylum seekers could be
required to contribute to expenses associated with their stay. The law, however, only
allowed asylum seekers to be charged for 90 days and . . . was never enforced. Danish
police also had the power to search asylum seekers, in order to find items or documents
that could be of importance when processing asylum claims. But Danish police were not
allowed to confiscate valuables during such searches. The recent amendment to the law
has bestowed this power upon the police and removed existing time limitations. The new
and controversial feature of the Danish Aliens Act, therefore, is not that asylum seekers
can be asked to contribute to the expenses associated with their stay in Denmark, or that
they can be searched. Rather, the recent amendment gives the police the power to search
asylum seekers with the aim of confiscating property”: J. Hartmann and N. Tan, “The
Danish Law on Seizing Asylum Seekers’ Assets,” EJIL Talk!, Jan. 27, 2016. The law
permits the seizure of cash “over 10,000 kroner (€1,340, $1,450) as well as any individual
items valued at more than that amount, such as watches, mobile phones and computers”;
exempted are wedding rings and other items of sentimental value, as well as savings and
funds in bank accounts: J. Coleman, “Migrant Crisis: Why are Countries Taking
Refugees’ Valuables?,” BBC, Jan. 26, 2016.
1911
“Swiss legislation requires asylum seekers who enter the country with more than 1,000 Swiss
francs [to] report and hand over the surplus to the Swiss authorities. The rule only covers
money, not other valuables such as personal jewellery. Of the 45,000 asylum seekers coming

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 642 4 rights of r efugees physically present

both the Netherlands1912 and Switzerland1913 a deduction is subtracted directly

from refugee wages to offset the cost of their reception while seeking asylum.
Tanzania requires that refugees who repatriate or otherwise permanently leave the
country surrender all personal property to the government for compensation.1914
While confiscation of the personal property of refugees is not widespread,
refugees may still face restrictions on their ability to acquire and deal with
personal property while in asylum states by virtue of general limitations on the
acquisition of personal property applied to all foreigners. In the United States,
for example, non-citizens may not own atomic energy facilities1915 and may
not acquire federal mineral rights.1916

to Switzerland in 2015, only 112 had to hand in a surplus, totalling around €150,000 that
year”: K. Groenendijk and S. Peers, “Can Member States Seize Asylum-Seekers’ Assets?” EU
Law Analysis, Jan. 24, 2016; see also “Migrant Crisis: Switzerland Defends Asset Seizure
Law,” BBC, Jan. 15, 2016. According to a spokeswoman for the Swiss state secretariat for
migration, refugees who leave voluntarily within seven months may reclaim seized assets.
“Otherwise the money covers costs they [refugees] generate”: “Switzerland Seizing Assets
from Refugees to Cover Costs,” Guardian, Jan. 15, 2016. Unlike Denmark’s law, which
authorizes officials to search refugees, the Swiss legislation permits confiscation only of items
that have been declared: K. Reilly, “Switzerland Criticized for Law Allowing Refugees’ Money
and Valuables to be Seized,” Time, Jan. 16, 2016.
1912
“The Regulation for Personal Contributions by Asylum Seekers allows the state to charge
asylum seekers for their food and living costs – €196 a month – if they earn more than €185
a week . . . Most of the money was reclaimed from the income of working refugees . . .
Asylum seekers are allowed to work for up to 24 weeks a year once they have been in the
country longer than six months”: “Dutch Charged Asylum Seekers €700,000 in Four Years
for Living Expenses,” DutchNews.nl, Jan. 25, 2016. In addition, “[a]sylum seekers are also
required to declare any savings or valuables they bring into the country to the COA, the
organisation that runs Dutch refugee centres. Deductions can be made if the holdings
amount to more than €5,895 for an individual or €11,790 for a family. Personal possessions
are included, though exceptions are made for items such as computers, mobile phones and
wedding rings”: G. Darroch, “Netherlands Claimed more than £500,000 from Refugees in
Four Years,” Guardian, Jan. 25, 2016.
1913
Under Swiss law, for example, “beneficiaries of protection with income from employment
have to pay 10% of that income” over the course of a ten-year period: K. Groenendijk and
S. Peers, “Can Member States Seize Asylum-Seekers’ Assets?” EU Law Analysis, Jan. 24,
2016.
1914
“Any movable property or immovable property belonging to any asylum seeker or
refugee who leaves the country permanently or on voluntary repatriation at the time of
his departure shall be left to be disposed off lawfully and be deemed to be left under the
safe custody and control of the Director and the Government shall pay fair and adequate
compensation to the owner of the property prior to the time of his departure”: Tanzania,
Refugees Act 1998, at Art. 34(3).
1915
“No license may be issued to an alien or any corporation or other entity if the [Atomic
Energy] Commission knows or has reason to believe it is owned, controlled, or domin-
ated by an alien”: 42 USC § 2133(d). This prohibition applies even in the case of non-
citizens seeking an atomic energy license for medical therapy purposes: 42 USC §
2134(d).
1916
“Except as otherwise provided, all valuable mineral deposits in lands belonging to the
United States . . . shall be free and open to exploration and purchase, and the lands in

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 4.5 pr o p er ty r i g ht s 643

Land ownership and tenure is undoubtedly the most sensitive area of all. In
rare cases, refugees may be subject to general rules that deny everyone the right
to own land: in Nigeria, for example, ownership of all land is vested in each
state’s governor, who issues certificates of occupancy for the right to occupy plots
for defined periods of time.1917 More commonly, refugees are disfranchised
under rules that prohibit non-citizens from owning land – as is the law in
Kenya1918 and Thailand.1919 In South Africa, the bar on purchasing land specif-
ically targets undocumented migrants.1920 In Singapore, non-citizens are barred
from buying land until they have resided in the country for at least five years.1921
Even if not denied the ability to buy land, refugees and other non-citizens may
still be subject to special restrictions or limitations. In Mexico, for example,
foreigners are not allowed to buy land in border regions or on the sea coast,1922
while in Lebanon1923 it is unlawful to sell land to a non-citizen without specific

which they are found to occupation and purchase, by citizens of the United States and
those who have declared their intention to become such”: 30 USC § 22.
1917
O. Adebimpe, “Property Rights in Nigeria; an Untapped Tool for Economic Growth,”
Sept. 15, 2017; see also T. Ogunlesi, “Africa Check Factsheet: Who Owns the Land in
Nigeria,?” Nov. 23, 2015.
1918
In Kenya, “land is not granted to foreigners irrespective of status because of the sensitivity
of the land issue”: “Implementation of the OAU/UN Conventions and Domestic
Legislation Concerning the Rights and Obligations of Refugees in Africa,” Final Report
of a Conference sponsored by the Refugee Studies Programme, Oxford University, Sept.
14–28, 1986, at 33. Under Kenya’s 2010 Constitution, “[a] person who is not a citizen may
hold land on the basis of leasehold tenure only, and any such lease, however granted, shall
not exceed ninety-nine years”: Art. 65(1).
1919
Although the Land Code Act B.E. 2497 (1954) prohibits aliens from acquiring land
ownership, individual foreigners can acquire property of up to 1 rai (1,600 square meters)
in particular areas for residential purposes subject to their fulfillment of a 40-million baht
investment requirement in specified assets or government bonds beneficial to the Thai
community: Land Code Amendment Act 1999 (No. 8), s. 96 bis.
1920
Smith Tabata Buchanan Boyes, “Buying Property in South Africa as a Resident or Non-
resident,” 2015/2016, at 14, www.stbb.co.za/wp-content/uploads/2014/09/Buying-
Property-in-South-Africa-as-a-resident-or-non-resident.pdf, accessed Feb. 15, 2020.
1921
Singapore Land Authority, “Foreign Ownership of Properties,” www.sla.gov.sg/property-
boundary-n-ownership/foreign-ownership-of-property, accessed Feb. 15, 2020. But non-
citizens may purchase condominium units and other non-landed property without
government approval: ibid.
1922
The Mexican constitution establishes that “in a zone of 100 km along the border or 50 km
along the coast, a foreigner cannot acquire direct domain of the land and waters”: Mexico
Constitution, 1917, at Art. 27. Although an amendment proposed in 2013 would have
permitted aliens to acquire direct title in the prohibited zones, the bill stalled in the
Senate: A. López Cruzado, “Foreign Buyers Face Familiar Restrictions in Mexico,” May
22, 2015; see also D. Dehler, “Buying Property in Mexico’s ‘Restricted Zone’: The Missed
Opportunity that was the 2013 Beltrones Proposal to Amend Article 27 of the Mexican
Constitution,” (2015) 32(1) Arizona Journal of International and Comparative Law 309,
at 328–330.
1923
“No person of non-Lebanese origin and no person considered by the law as a foreigner
may acquire real property rights through contract or any legal action between living

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 644 4 righ t s of r efug ee s ph y sica lly p r es en t

approval from the government. Namibia prohibits the sale of agricultural land to
non-citizens,1924 while New Zealand allows foreign investment in farmland of
over five hectares only if it can be proved to result in “substantial and identifi-
able” benefits to New Zealand.1925
Refugees may face difficulties even in leasing land. Officials in both
Honduras and Mexico, for example, often prevented refugees from renting
land during the late 1980s.1926 In Ghana, the security of land tenure for non-
citizens is limited to fifty years, and refugees have faced threats of evictions
from landowners.1927 Other African countries have limited the maximum plot
size allocated to refugees to an economically unviable size1928 or conditioned
access to land on agreement to grow particular crops.1929 Discrimination

people except after receiving a permit given by a Decree issued by the Council of
Ministers upon the proposal of the Minister of Finance. No one shall be exempt from
this law unless it is clearly written in this law or any other text”: Law No. 296/2001, at Art.
1(1) (unofficial translation cited in “Palestinian refugees’ right to inherit under the 2001
amendment law – Beirut test case,” Norwegian Refugee Council and Information,
Counselling and Legal Assistance Programme, Jan. 2016, at 1 n. 2). “The amendment
was interpreted to specifically prohibit Palestinian refugees in Lebanon from acquiring
real estate property rights . . . as they may be considered as a group of people who do not
hold citizenship issued by a ‘recognised’ state, and/or their acquisition to real rights may
lead to permanent settlement (Tawteen)”: “Palestinian Refugees’ Right to Inherit under
the 2001 Amendment Law – Beirut Test Case,” Norwegian Refugee Council and
Information, Counselling and Legal Assistance Programme, Jan. 2016, at 1.
1924
“The person who sold or otherwise disposed of that agricultural land to the foreign
national or nominee owner shall . . . be guilty of an offence and be liable on conviction to
a fine not exceeding N$100,000 or to imprisonment for a term not exceeding five years or
to both”: Namibia, Agricultural (Commercial) Land Reform Act 6 of 1995, at Art.
60A(1)(b). Although the National Assembly tabled an amendment in 2016 that would
have forced foreigners desiring to sell their property to first offer it to a local authority or
Namibian citizen, the amendment was ultimately withdrawn: S. Immanuel, “Namibia:
Property Ban for Foreigners,” Namibian, Nov. 6, 2015; see also W. Werner, “The 2016
Land Bill: Making Law without Consultation and Policy Review,” Democracy Report,
Special Briefing Report No. 16, Feb. 2017, at 1–2, 12–13.
1925
Land Information New Zealand, “Benefit to New Zealand Test,” www.linz.govt.nz/
overseas-investment/applying-for-consent-purchase-new-zealand-assets/preparing-
your-application-oio/benefit-new-zealand-test, accessed Feb. 15, 2020. See also “NZ
Orders Regulator to Scrutinise Foreign Investment in Farms, Forests,” Reuters, Nov.
28, 2017.
1926
Keen, Right to Life, at 56.
1927
“[T]he Constitution categorically barred foreigners from any freehold interest in land or
any lease greater than 50 years. Nevertheless, several legal residents leased land for 99-
year periods. In Buduburam, some refugees leased property from Ghanaians on build,
operate, and transfer agreements. At the end of their timeshare, some landowners
threatened to evict them”: US Committee for Refugees and Immigrants, World Refugee
Survey 2007: Ghana (2007).
1928
Keen, Right to Life, at 56.
1929
“[I]n the Sudan’s New Halfa scheme . . . tenancies were distributed to the newcomers to grow
compulsory crops of cotton, wheat and ground-nuts. Lack of control over their allocated

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 4.5 pr o p er ty r i g ht s 645

against refugees seeking to lease property also occurs in urban settings.

Landlords in Germany,1930 Ireland,1931 and Pakistan1932 have embraced dis-
criminatory rental policies to avoid renting to refugees and other foreigners.

4.5.1 Movable and Immovable Property Rights

Refugee Convention, Art. 13 Movable and Immovable Property
The Contracting States shall accord to a refugee treatment as favour-
able as possible and, in any event, not less favourable than that
accorded to aliens generally in the same circumstances, as regards the
acquisition of movable and immovable property and other rights
pertaining thereto, and to leases and other contracts relating to mov-
able and immovable property.
The human right to own and to possess property enjoys a tenuous place in
international law.1933 It is usually said that the failure to codify a clear right to
property was the result of a capitalist–socialist philosophical divide at the time
international human rights law was developed,1934 with the right to property

farms discourages settlers from fully committing themselves to agricultural production”:

V. Lassailly-Jacob, “Government-Sponsored Agricultural Schemes for Involuntary Migrants
in Africa: Some Key Obstacles to Their Economic Viability,” in H. Adelman and J. Sorenson
eds., African Refugees: Development Aid and Repatriation 209 (1994), at 217.
1930
D. Heinrich, “Foreigners Not Welcome: Racism in Germany’s Housing Market,”
Deutsche Welle, Nov. 13, 2013.
1931
K. Holland, “Refugees Face Discrimination from Landlords,” Irish Times, Mar. 1, 2004;
see also M. Hilliard, “Discrimination in Renting Most Common Rights Issue Raised,”
Irish Times, June 29, 2017.
1932
“Numerous Afghans said landlords evicted them from, or refused to rent, apartments or
business premises after the Pakistani authorities announced in newspapers and on television
that it was illegal to rent to Afghans. Others said that beginning in July [2016], landlords
started doubling or tripling their rent, thereby forcing them out of their homes and
businesses and leaving them destitute”: Human Rights Watch, “Pakistan Coercion, UN
Complicity: The Mass Forced Return of Afghan Refugees,” Feb. 2017, at 26–27.
1933
“International lawyers, including human rights advocates, are ambivalent and sometimes
hostile about recognizing a ‘human right’ to property protection”: J. Alvarez, “The
Human Right of Property,” (2018) 72 University of Miami Law Review 580 (Alvarez,
“Human Right of Property”), at 584.
1934
See e.g. C. Krause, “The Right to Property,” in A. Eide et al. eds, Economic, Social and Cultural
Rights: A Textbook 191 (2001) (Krause, “Right to Property”), at 192–193: “Many Western
countries, with the United States in the forefront, have tended to proclaim a strong protection
of the right to property, whereas the socialist countries and the Third World countries have
emphasized the social function of property, allowing for interference with property rights in
the name of public interest . . . In spite of the decreasing ideological and political tensions
concerning property rights, the protection of property rights will remain a matter of contro-
versy . . . Property rights are closely connected with the social and economic policies of States
and thus there will always be a certain amount of reluctance towards international supervision
of these rights.”

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 646 4 righ ts of r efug ee s ph y sica lly p r es en t

championed predominantly by Western countries.1935 It is also certainly true

that the status of property rights remains highly contested even today in much
of the less developed world. As Gudmundur Alfredsson has observed,

Property rights have been criticized as standing in the way of progress:

from the owning of slaves to the exploitation of others through apartheid
and transnational corporations. The importance of property rights is often
deemed to pale against the background of other problems, such as hunger,
poverty and misery . . . The overall concentration of most of the world’s
property in the hands of a comparative few, especially in times of popula-
tion growth and scarcity of resources, makes property rights seem more
part of the problem than an interest entitled to protection.1936

Indeed, when the assets of just eight men exceed those of half of the world’s
population,1937 it is difficult to question this deep-seated skepticism about the
value of private property rights.
Most countries nonetheless do have some form of property right in their
domestic constitution.1938 Property rights are also established by each of the
three regional human rights regimes – though not in a particularly robust
way.1939 The European Convention on Human Rights and Fundamental
1935
See A. Rosas, “Property Rights,” in A. Rosas and J. Helgesen, The Strength of Diversity:
Human Rights and Pluralist Democracy 133 (1992), at 146. “The Constitution and basic
laws of most if not all Western countries have long guaranteed the right to property. This
right is part and parcel of their very form of government”: G. Alfredsson, “Article 17,” in
A. Eide et al. eds., The Universal Declaration of Human Rights: A Commentary 255 (1992)
(Alfredsson, “Article 17”), at 255.
1936
Alfredsson, “Article 17,” at 260.
1937
Oxfam, “An Economy for the 99%,” Jan. 2017, at 1. “If the realization of property rights
only entails a right to own property and a protection against arbitrary interference in
these existing property rights, it is difficult, at least morally to justify the right to
property”: Krause, “Right to Property,” at 209.
1938
As of 2013, 85 percent of states constitutionally protect property rights in some form:
Z. Elkins et al., “Imagining a World Without the Universal Declaration of Human Rights”
(2014), at Table A1, papers.ssrn.com/sol3/papers.cfm?abstract_id=2469194, accessed
Feb. 15, 2020. Yet “[t]he absence of a definition of the concept of property in international
conventions is not surprising, as the exact content of property varies in different legal
systems”: Krause, “Right to Property,” at 198.
1939
This reticence stands in stark contrast to Locke’s classic notion that the advancement of
property rights is at the core of a state’s responsibility. “The great and chief end . . . of
men’s uniting into commonwealths, and putting themselves under government, is the
preservation of their property; to which in the state of nature there are many things
wanting . . . The reason why men enter into society, is the preservation of their property;
and the end why they choose and authorize a legislative, is, that there may be laws made,
and rules set, as guards and fences to the properties of all the members of the society, to
limit the power, and to moderate the dominion, of every part and member of the society:
for since it can never be supposed to be the will of the society, that the legislative should
have the power to destroy that which every one desires to secure, by entering into society,
and for which the people submitted themselves to the legislators of their own making”:

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 4. 5 pr o p er ty r i g h ts 647

Freedoms, for example, did not originally speak to property rights at all.1940
When ultimately enacted as part of Protocol No. 1 to the European
Convention, the right to property was meekly framed as a right of “[e]very
natural or legal person . . . to the peaceful enjoyment of his possessions. No one
shall be deprived of his possessions except in the public interest and subject to
the conditions of international law.”1941 And even this minimal right to
peaceful enjoyment of property can be trumped by “the right of a State
to enforce such laws as it deems necessary to control the use of property in
accordance with the general interest.”1942 Art. 21 of the American Convention
on Human Rights similarly protects only “the use and enjoyment of . . .
property,” though it adds explicit protection from confiscation without com-
pensation; as in Europe, however, “[t]he law may subordinate such use and
enjoyment to the interest of society.”1943 The African regional human rights
convention is perhaps the most vague of all, providing only that “[t]he right to
property shall be guaranteed,” though in line with its European and American
counterparts, the right to property may be “encroached upon in the interest of
public need or in the general interest of the community and in accordance with
the provisions of appropriate laws.”1944 In their interpretation of these norms,
moreover, regional human rights courts have failed to “produc[e] harmonious
property rights jurisprudence, and those courts’ respective case law cannot be

J. Locke, The Second Treatise on Civil Government and a Letter Concerning Toleration
(1690), at ss. 124, 222.
1940
Krause notes that “[t]he right to property was included in the draft text passed by the
Consultative Assembly. However, the Committee of Ministers felt . . . that the inclusion
of the right to property would delay the entering into force of the Convention”: Krause,
“Right to Property,” at 195, n. 14.
1941
Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental
Freedoms, done Mar. 20, 1952, incorporated in the European Convention for the
Protection of Human Rights and Fundamental Freedoms, 213 UNTS 221 (UNTS
2889), done Nov. 4, 1950, entered into force Sept. 3, 1953 (ECHR Protocol No. 1), at
Art. 1. As elaborated in the case law of the European Court of Human Rights, however,
the notion of “possessions” includes the full range of property interests, and the right of
peaceful enjoyment has been held to constrain even de facto expropriation: Krause,
“Right to Property,” at 198–200.
1942
ECHR Protocol No. 1, at Art. 1(2).
1943
American Convention on Human Rights, 1144 UNTS 123 (UNTS 17955), entered into
force July 18, 1978, at Art. 21. As interpreted by the Inter-American Court, “undefined
‘property’ given protection under Article 21 has been seen as extending to ‘sacred’ lands
farmed (but not formally owned) by identified indigenous peoples, some forms of
intellectual property, certain rights held by corporate shareholders, tangible assets seized
from individuals in the course of law enforcement and civil forfeiture, and forms of
‘acquired rights’ established under national laws (such as pensions)”: Alvarez, “Human
Right of Property,” at 645.
1944
African Charter on Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3 rev. 5,
entered into force Oct. 21, 1986, at Art. 14.

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 648 4 righ t s of r e f ugee s ph y sica lly pr es en t

presumed to indicate the parameters of ‘the international law of property’

applicable to the world.”1945
The only general and universal formulation of the right to property1946 is
found in Art. 17 of the non-binding Universal Declaration of Human Rights,
which proclaims a right both to own property individually and collectively, and
to be protected against the arbitrary deprivation of property1947 – a formula-
tion referred to by one commentator as “purposely vague.”1948 In contrast to
regional norms, this one general and universal standard does not specifically
require undisturbed enjoyment of property. Nor does it take a position on the
historically contentious issue of the standard of compensation that must be
paid in the event of confiscation.1949 Indeed, in part because agreement could
not be reached on these more specific concerns that would have to be
addressed before the right to property could be made legally enforceable, the
right to property was one of only two standards1950 in the Universal
Declaration that failed to attract support for codification as a binding legal
standard in either of the two Covenants on Human Rights.1951
Nor has the end of the Cold War resolved these tensions. The centrality of
property to each state’s understanding of its basic political and social values1952
continues to make it exceedingly difficult to arrive at a universally binding

1945
Alvarez, “Human Right of Property,” at 649.
1946
Alvarez has, however, identified thirty-five international instruments that speak to
property rights in some fashion: ibid. at 690ff. “But apart from these discrete regimes,
attention to property rights as part of international human rights law lags”: ibid. at 587.
1947
“Everyone has the right to own property alone as well as in association with others. No
one shall be arbitrarily deprived of his property”: Universal Declaration, at Art. 17.
1948
Alvarez, “Human Right of Property,” at 584.
1949
The essential difference of view has been between those (mostly capitalist) states which
assert the right to “prompt, adequate and effective compensation,” and the preference of
other (mostly developing) countries for a less rigorous standard of compensation. See
generally R. Higgins, “The Taking of Property by the State,” (1982) 176 Recueil des
Cours 259.
1950
The other right that was not made binding is the right to be protected against unemploy-
ment, found in Art. 23 of the Universal Declaration of Human Rights.
1951
“Notwithstanding several proposals, no such article was adopted. In lengthy debates there
was disagreement on practically every aspect of the topic . . . including such issues as the
scope of property, conformity with State laws, expropriation and other allowable limita-
tions, due process of law, compensation and indeed the very inclusion of the right”:
Alfredsson, “Article 17,” at 259.
1952
“The importance of the concept of property goes far beyond the legal sphere, as it
constitutes the basic factor in the prevailing economic system within a specific society
and the most fundamental variable of its social order. Its links with the political pro-
gramme accepted within that society are therefore manifest. Furthermore, its philosoph-
ical and ethical implications are obvious”: “The right of everyone to own property alone
as well as in association with others, completed final report submitted by Mr. Luis
Valencia Rodríguez, Independent Expert, to the United Nations Commission on
Human Rights,” UN Doc. E/CN.4/1994/19, Nov. 25, 1993, at [63].

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 4.5 p roperty r ights 649

standard acceptable to all. The jurisprudence of the Human Rights Committee

has thus confirmed that property rights are not a specifically protected interest
under the Civil and Political Covenant,1953 and an initiative in the Commission
on Human Rights to promote property rights within a socioeconomic con-
text1954 did not result in any new normative consensus.1955
Despite this absence of global agreement on the value of a right to property
as such, international human rights treaties do require respect for the principle
of non-discrimination in relation to whatever property rights may be enacted
by a given state.1956 This general guarantee of non-discrimination can, in

1953
“The right to property . . . is not protected by the International Covenant on Civil and
Political Rights”: OJ v. Finland, HRC Comm. No. 419/1990, UN Doc. CCPR/C/40/D/419/
1990, decided Nov. 6, 1990, at [3.2]. Property rights may, however, be indirectly protected
by virtue of the duty of non-discrimination: see Chapter 1.5.5.
1954
The Commission on Human Rights advocated treating property rights as an issue of the
realization in all countries of economic, social, and cultural rights, in line with General
Assembly resolution 45/98 of December 1991: “The right of everyone to own property
alone as well as in association with others, completed final report submitted by Mr. Luis
Valencia Rodríguez, Independent Expert, to the United Nations Commission on Human
Rights,” UN Doc. E/CN.4/1994/19, Nov. 25, 1993, at [98].
1955
In response to the final report submitted by the independent expert (see note 1954), the
Commission on Human Rights “[r]ecommend[ed] that all relevant United Nations
bodies take into consideration the recommendations of the independent expert . . . and
[c]onclude[d] its consideration of this matter”: UN Doc. E/CN.4/1994/19, Nov. 25, 1993,
at [4]–[5]. This may not be a surprising result, since “the human right of property . . . will
remain a viable proposition . . . only to the extent that it remains subject to distinct
contextualized interpretations in international regimes and diverse international adjudi-
cative forums”: Alvarez, “Human Right of Property,” at 588.
1956
“The non-regional human rights treaties . . . encompass only non-discrimination guar-
antees with respect to property”: Alvarez, “Human Right of Property,” at 650. See
Convention on the Elimination of All Forms of Discrimination Against Women, 1249
UNTS 13 (UNTS 20378), adopted Dec. 18, 1979, entered into force Sept. 3, 1981
(Discrimination Against Women Convention), at Art. 16; International Convention on
the Protection of the Rights of All Migrant Workers and Members of their Families, 2220
UNTS 3 (UNTS 39481), UN Doc. A/45/49 (1990), adopted Dec. 18, 1990, entered into
force July 1, 2003, at Art. 15. Of the several non-discrimination standards, the guarantee
in the Racial Discrimination Convention, in which “the right to own property alone as
well in association with others” and “the right to inherit” are both subject to a guarantee
of non-discrimination on the basis of “national or ethnic origin,” is potentially of greatest
relevance to the whole refugee class, so long as the state of asylum is a party to that
agreement: Racial Discrimination Convention, at Arts. 1(1) and 5(d)(v). In the context of
refugee repatriation, the Committee on the Elimination of Racial Discrimination has
relied on Art. 5 in order to reach the conclusion that “refugees . . . have, after their return
to their homes of origin, the right to be restored to them property of which they were
deprived in the course of the conflict and to be compensated for any such property that
cannot be restored to them. Any commitments or statements relating to such property
made under duress are null and void”: UN Committee on the Elimination of Racial
Discrimination, “General Recommendation No. XXII: Refugees and Displaced Persons”
(1996), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [2(c)].

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 650 4 ri g h t s of r e f u g e es ph y s i c a l l y p r e s e nt

practice, be an important means to contest the legal validity of restrictions on

property rights imposed on aliens generally, or on refugees specifically. Of
particular importance, Art. 26 of the Civil and Political Covenant governs the
allocation of all rights, and prohibits discrimination on the basis of both
“national origin” and “other status.”1957
As interpreted by the Human Rights Committee, Art. 26 presumes the
illegitimacy of any rights allocation made on the basis of any form of status,
specifically understood to include alien status.1958 As such, legal distinctions
between citizens and non-citizens must be justifiable on the basis of real
differences of capability or potentiality to pass muster under the Covenant’s
guarantee of equal protection of the law. Under this framework, while some
exclusions on property ownership by aliens may be deemed “reasonable”
under international law,1959 others will not. A case might be made that
Mexican restrictions on alien property ownership along its borders,1960 the
US bar on non-citizen purchases of atomic energy facilities,1961 and perhaps
even South Africa’s bar on land purchase by the subset of non-citizens who are
illegally present in that country1962 (assuming, of course, that persons claiming
asylum are properly understood to be lawfully present)1963 are reasonable
measures taken in support of national security.1964 The preservation of agri-
cultural land is similarly likely to be thought a reasonable limitation given a
state’s duty to ensure food security,1965 though the case is less solid for
upholding Namibia’s sweeping duty to seek ministerial approval for any sale
of farmland to a non-citizen1966 than for New Zealand’s more narrowly
tailored restriction on non-citizen ownership of agricultural land.1967
On the other hand, the sort of absolute denial to non-citizens of broadly
framed property rights found in Kenya1968 and Thailand1969 is unlikely to be
found justifiable. Even less far-reaching prohibitions, such as the decision of
Lebanon to require government authorization for any purchase of real prop-
erty by a non-citizen,1970 Singapore’s withholding of real property purchase
rights from any non-citizen who has not resided there for at least five years,1971
and the US refusal to hold federal mineral rights1972 seem difficult to justify as

1957
See Chapter 1.5.5 at note 453 ff. 1958 Ibid. at note 462. 1959 Ibid. at note 467 ff.
1960
See text at note 1922. 1961 See text at note 1915. 1962 See text at note 1920.
1963
See Chapter 3.1.3.
1964
The IRO was prepared to recognize that “special regulations excluding aliens, based on
security considerations, e.g. [from] property in frontier or strategic areas” were reason-
able: Comments of the International Refugee Organization, UN Doc. E/AC.32/L.40, Aug.
10, 1940, at 40. The drafters of the Refugee Convention did not, however, choose to
restrict the scope of property rights on the basis of such considerations, opting instead to
guarantee refugees whatever property rights are granted to “aliens generally in the same
circumstances.”
1965
See Chapter 4.4.2, note 1737. 1966 See text at note 1924. 1967 See text at note 1925.
1968
See text at note 1918. 1969 See text at note 1919. 1970 See text at note 1923.
1971
See text at note 1921. 1972 See text at note 1916.

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 4.5 p roperty rights 651

reasonable limitations on the duty not to discriminate on grounds of alien

status. The denial of some key property rights to refugees may therefore be
most effectively challenged on the grounds of unreasonable differentiation in
relation to the generic class of non-citizens.
Beyond international human rights law’s general protection of non-citizens
against discrimination in relation to property rights, the Refugee Convention
adds net value in at least three ways.
First, Art. 13 – which applies to all refugees under a state’s jurisdiction,
even if not in its territory1973 – makes clear that any property rights
deprivation that targets refugees specifically is unlawful. Because refugees
must receive property rights that are at least as good as those afforded
aliens generally, any deprivation of property rights that sets refugees apart
from other non-citizens is presumptively in breach. Art. 13 moreover
makes clear that this prohibition of refugee-specific denials of “property”

1973
One of the real strengths of Art. 13 is that it is a right that inheres in all refugees, even
those not physically present in a state’s territory. Perhaps because the primary goal of
withholding certain rights for citizens and most-favored foreigners was met by the use of
the low contingent standard for property rights, the initial limitations on the scope of the
beneficiary class by reference to level of attachment fell by the wayside, with the Ad Hoc
Committee’s Working Group recommending the extension of property rights to “a
refugee” without qualification: “Decisions of the Working Group Taken on 9 February
1950,” UN Doc. E/AC.32/L.32, Feb. 9, 1950, at 5, adopted by the Ad Hoc Committee at
UN Doc. E/AC.32/SR.25, Feb. 10, 1950, at 5. In the result, the benefits of Art. 13 can now
be invoked by any refugee under a state’s authority, including those not yet formally
recognized as refugees: see Chapter 3.1.1. Indeed, no objection was voiced to the conclu-
sion of the Chairman of the Ad Hoc Committee that Art. 13 “make[s] no distinction
between refugees in countries adhering to the Convention and refugees resident else-
where . . . [S]ome countries whose laws imposed restrictions on the property rights of
aliens might feel some apprehension that article [13] would give the same rights to
refugees living in other countries as to aliens living in the country where the property
was”: Statement of the Chairman, Mr. Larsen of Denmark, UN Doc. E/AC.32/SR.36, Aug.
15, 1950, at 19–20. The only recorded response was the affirmation of the British
representative that “[a] refugee abroad would presumably receive the same treatment
as an alien abroad” (Statement of Sir Leslie Brass of the United Kingdom, ibid. at 20).
Thus, non-resident refugees are entitled to the same protection of property rights as is
afforded comparably situated non-resident aliens. See Robinson, History, at 105: “Article
13 does not contain a requirement of domicile or residence for the enjoyment of the
rights conferred by it on refugees. In other words, it applies to refugees regardless of
whether they have their domicile or residence in the country in which they wish to
acquire property or elsewhere”; and Weis, Travaux, at 116: “The provision applies to all
refugees, whether resident in the territory of the Contracting State or not.” The notion of
“‘in the same circumstances’ implies that any requirements (including requirements as to
length and conditions of sojourn or residence) which the particular individual would
have to fulfil for the enjoyment of the right in question, if he were not a refugee, must be
fulfilled by him, with the exception of requirements which by their nature a refugee is
incapable of fulfilling”: Refugee Convention, at Art. 6. See generally Chapter 3.2.3.

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 652 4 ri g ht s of re f u g e e s p hy s i c a l l y p r e s e n t

rights is quite broad-ranging.1974 The text of Art. 13 specifically addresses

the right to acquire both movable (personal) and immovable (real) prop-
erty, including acquisition by lease.1975 Specific reference was made during
the drafting debates to the importance of enabling refugees to purchase
securities (stocks)1976 and land,1977 to acquire a home,1978 and to lease
premises for accommodation or in which to carry on a business.1979
Robinson and Weis logically add that Art. 13 encompasses the right to
hold money, and to establish bank accounts.1980

1974
A broad reading of the scope of “property” is consistent with (though not expressly
codified in) the general approach in international human rights law. “The absence of a
definition of the concept of property in international conventions is not surprising, as the
exact content of property varies in different legal systems. None of the conventions limit
the protection of property to any particular kind of property. In practice, the Strasbourg
organs have given ‘possessions’ under Protocol No. 1 to the [European Convention on
Human Rights and Fundamental Freedoms] a wide interpretation and held that it covers
both immovable and movable property, including immaterial rights, such as contractual
rights with economic value, various economic interests, goodwill, as well as still pending
compensation claims against the state provided that there is a legitimate expectation for
the claims to be decided in the applicant’s favour”: Krause, “The Right to Property,” at
198–199.
1975
In view of the fact that Art. 17 of the Universal Declaration of Human Rights had been
approved by the General Assembly just over one year before the preparation of the
Secretary-General’s draft of the Refugee Convention, it is surprising that no express
reference is made in the Refugee Convention to the right of property “ownership.” While
the focus on the right to “acquire” property in the Refugee Convention might be argued to
exclude protection of rights of ownership in property brought into the asylum country,
the express language of Art. 30 (which permits refugees to transfer “assets which they
have brought into [the asylum country’s] territory”) must negate that interpretation. In
the result, the right to acquire property “and other rights pertaining thereto” should be
understood in context to include protection of the rights of ownership in all property
brought into, and acquired within, the asylum state. This position is endorsed in S. Leckie
and E. Simperingham, “Article 13,” in A. Zimmermann ed., The 1951 Convention
Relating to the Status of Refugees and its 1967 Protocol: A Commentary 883 (2011), at 891.
1976
Secretary-General, “Memorandum,” at 26.
1977
Statement of Sir Leslie Brass of the United Kingdom, UN Doc. E/AC.32/SR.36, Aug. 15,
1950, at 13.
1978
In response to an American proposal to insert a new right of refugees to “housing
accommodation,” the Chairman of the Ad Hoc Committee advised that in the view of
the Secretariat “the provisionally adopted article [13] might be considered to cover the
question in a certain sense”: Statement of the Chairman, Mr. Chance of Canada, UN Doc.
E/AC.32/SR.15, Jan. 27, 1950, at 11. The representative of the United States “replied that
article [13] dealt with the rights of refugees regarding immovable property and leases,”
leading him to constrain the scope of what became Art. 21 to “social welfare matters taken
by States with a view to providing housing accommodation for certain categories of
persons”: Statement of Mr. Henkin of the United States, ibid. See generally Chapter 6.4
with respect to the latter issue.
1979
Secretary-General, “Memorandum,” at 26.
1980
Robinson, History, at 106; Weis, Travaux, at 116.

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 4.5 p ro perty rig hts 653

As such, the refusal of Honduran1981 and Mexican1982 officials to allow

refugees to rent land was in violation of Art. 13, as are the refugee-specific
prohibitions on the leasing of plots of an economically viable size found in
parts of Africa.1983 So too would be any discrimination against refugees in the
administration of the Nigerian system under which all ownership of land is
vested in the state with only certificates of occupancy issued to particular
persons.1984 The Pakistani government’s announcement that it was illegal to
rent to refugees – leading many landlords to evict refugees1985 – was also
clearly in breach of Art. 13. And because Art. 13 obliges states “to accord” –
that is, not simply to promise, but to deliver – refugees the stipulated property
rights, the failures of Germany1986 and Ireland1987 to take effective steps to
confront the refusal of private landlords to rent to refugees were also arguably
at odds with the duty set by Art. 13.
Indeed, Art. 13 of the Refugee Convention not only protects the right to
acquire all forms of property, but also prohibits refugee-specific discrimination
in regard to “other rights pertaining thereto,” specifically including related
contractual interests. Robinson elaborates this notion by suggesting that such
related activities as “sale, exchange, mortgaging, pawning, administration,
[and] income”1988 are protected interests. Another example of “rights pertain-
ing” to property mentioned during the drafting debates is the ability of refugees
to benefit from rent controls.1989 Logically, then, the practice of some host
states to impose a refugee-specific requirement that only certain crops may be
grown on rented land1990 infringes this component of Art. 13.
A second value-add of Art. 13 is that it is not simply a duty to enfranchise
refugees within the ranks of other non-citizens. The actual duty under Art. 13
is rather to accord to a refugee “treatment as favourable as possible,” though in
no case less favorable than that afforded aliens generally.1991 As noted

1981
See text at note 1926. 1982 Ibid. 1983 See text at note 1928.
1984
See text at note 1917. 1985 See text at note 1932. 1986 See text at note 1930.
1987
See text at note 1931. 1988 Robinson, History, at 105–106.
1989
“It may be noted that in certain countries foreigners are not covered by rent laws for the
protection of tenants, save by virtue of treaties. If, therefore, refugees, who are usually
destitute, are not to enjoy the treatment accorded under treaty to foreigners, they will be
debarred from the benefits of such laws, which will spell disaster for them”: Secretary-
General, “Memorandum,” at 27. The representative of the IRO suggested that rent
controls might be a form of property to be excluded from the protection of Art. 13, a
view expressed in the hope of persuading delegates to adopt a national treatment
standard for property rights: Statement of Mr. Weis of the International Refugee
Organization, UN Doc. E/AC.32/SR.36, Aug. 15, 1950, at 11. States opted instead for a
broad definition of relevant property interests (presumably rejecting the IRO’s bid to
exclude some interests), but the standard of treatment was set as “aliens generally in the
same circumstances.”
1990
See text at note 1929.
1991
The original drafts of Art. 13 suggested that property rights might be guaranteed either at
the level of “the most favorable treatments accorded under treaty to foreigners”

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 654 4 ri g ht s of re f u g e es p hy s i c a l l y p r e s e n t

above,1992 this standard of treatment imposes a duty on states to consider in

good faith the exemption of refugees from even rules applied generally to non-
citizens. Limitations imposed on non-citizens may in any event be validly
applied only to such refugees who are “in the same circumstances” as other
aliens.1993 This proviso requires states to exempt refugees from requirements
which may simply not be appropriate in view of impediments that follow from
the refugee’s uprooting and dislocation.1994 Taking both of these duties into
account, Ghana ought reasonably to have considered exempting refugees from
its general policy of restricting land tenure for all non-citizens to fifty years1995
since refugees – unlike other non-citizens – are not usually in a position to own
and enjoy land in their home country.

(Secretary-General, “Memorandum,” at 26; a bracketed alternative form of words would

allow states to commit themselves only to “the treatment accorded to foreigners gener-
ally”: ibid.) or even to require “treatment similar to that accorded to their nationals”
(France, “Draft Convention,” at 4). But the drafters rejected pleas fully to enfranchise
refugees in order to promote their speedy assimilation (“In view of the desirability that
refugees should be assimilated as quickly as possible into the economic life of their
country of residence, refugees should be granted the same property rights as nationals
subject to any special regulations excluding aliens, e.g. property in frontier or strategic
areas, government or central bank bonds, shares of shipping companies, mines, etc.”:
Comments of the International Refugee Organization, UN Doc. E/AC.32/L.40, Aug. 10,
1950, at 40. See also Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/
SR.36, Aug. 15, 1950, at 10). Some states took the view that there was no good reason to
privilege refugees relative to other non-citizens (Statement of Mr. Kural of Turkey, UN
Doc. E/AC.32/SR.10, Jan. 24, 1950, at 4. See also Statement of Sir Leslie Brass of the
United Kingdom, ibid. at 7: “[W]hile the Committee was trying as it should to protect
refugees against discrimination, it should not go to the other extreme of establishing
discrimination in favour of refugees. He shared the uneasiness of other members regard-
ing the most-favoured-nation clause”). Others simply wanted to be able to reserve some
property rights for either their own citizens (Statement of Mr. Rain of France, ibid. at 6–7)
or for the citizens of states with which they were allied in an economic or political
association (“Belgium . . . placed nationals of the Benelux countries for certain purposes
on a quasi-equal footing with Belgian citizens. It was not the intention of the article under
consideration, he hoped, to ask the same treatment for refugees”: Statement of Mr.
Cuvelier of Belgium, ibid. at 5. See also Statement of Mr. Larsen of Denmark, ibid. at 5:
“[T]he Scandinavian countries . . . did accord special treatment to Scandinavian nationals
which they would not be prepared to give to other foreigners, including refugees”). In
keeping with the traditional deference afforded states to define their own notions of
property, Art. 13 requires only that refugees enjoy protected interests at a low contingent
standard of treatment, namely treatment “as favourable as possible and, in any event, not
less favourable than that accorded to aliens generally in the same circumstances”:
“Decisions of the Working Group Taken on 9 February 1950,” UN Doc. E/AC.32/L.32,
Feb. 9, 1950, at 5. This standard was adopted without further debate by the Ad Hoc
Committee on a 5–1 (5 abstentions) vote: UN Doc. E/AC.32/SR.25, Feb. 10, 1950, at 5. So
long as restrictions are of general application (or at least applied to all other non-citizens),
they may in most cases govern the rights of refugees as well. See Chapter 3.2.1.
1992
See Chapter 3.2.1 at note 258. 1993 See Chapter 3.2.3. 1994 Ibid. at note 311 ff.
1995
See text at note 1927.

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 4.5 p ro perty rig hts 655

Beyond Art. 13’s value as a prohibition of refugee-specific property rights

discrimination and as setting a duty to consider in good faith the exemption of
refugees from general rules and in any event from those inconsistent with a
refugee’s circumstances, a third net benefit of the Refugee Convention is that it
establishes a right to fair compensation in the event of property confiscation
via its Art. 7(1)1996 – a protection which, as noted above,1997 is not yet codified
in general international human rights law.1998 Because Art. 7(1)’s overarching
duty to accord refugees “the same treatment as is accorded to aliens generally”
is not limited to the rights specifically set out in the Refugee Convention,1999
Art. 7(1) incorporates by reference the duty to adhere to customary norms of
international aliens law.2000 Of particular relevance, this includes the clear
obligation to provide non-citizens with adequate compensation for any denial
of property rights.2001
In essence, Art. 7(1) ensures that refugees are not denied the benefit of the
protection of international aliens law simply because their own state of nation-
ality cannot be counted on to exercise its formal responsibility to undertake
enforcement action.2002 Under Art. 7(1), the duty to provide fair compensation
rather falls upon state parties, meaning that alien-specific confiscatory regimes,
including those applied simply against refugees, must fairly compensate refu-
gees. The laws of Denmark2003 and Switzerland2004 authorizing the search and
seizure without compensation of refugee assets, as well as the Dutch2005 and
Swiss2006 systems of seizing a portion of refugee earnings owed by employers,
are thus in breach of this duty. Nor is it an answer to argue that the assets
confiscated are essentially reimbursement for the costs incurred by those states
to operate refugee reception centers: because it is not legal to require refugees
awaiting status assessment to live in such a center,2007 any cost reimbursement
must be freely agreed to by a refugee who chooses to avail herself of such a
facility.
Despite the real value of this guarantee of fair compensation in the event of
property confiscation, it is important to recognize that the duties under
international aliens law incorporated into the duty of states under Art. 7(1)
of the Convention do not establish a right to be free from property deprivation
as such (but only to be fairly compensated for any such loss).2008 Art. 7(1)
1996
The scope and meaning of Art. 7(1) are addressed in detail at Chapter 3.2.
1997
See text at note 1949.
1998
Even as among regional human rights treaties, such a guarantee is codified only in Art.
21(2) of the American Convention on Human Rights: see text at note 1943.
1999
See Chapter 3.2.1. 2000 Ibid. 2001 See Chapter 1.1 at note 7.
2002
Ibid. at note 12. 2003 See text at note 1910. 2004 See text at note 1911.
2005
See text at note 1912. 2006 See text at note 1913.
2007
See Chapter 4.2.4 at note 1244 ff.
2008
For example, even the strongest advocates of the protection of refugee property rights
conceded the logic of exceptions “based on security considerations”: Comments of the
International Refugee Organization, UN Doc. E/AC.32/L.40, Aug. 10, 1940, at 40.

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 656 4 ri g ht s of r e f u g e es p hy s i c a l l y p r e s e n t

duties therefore do not prohibit Tanzania from requiring refugees to surrender

personal property upon repatriation2009 or the slaughter of all animals brought
into Swaziland and Tanzania by refugees2010 since fair compensation is pro-
vided under those regimes. In contrast, when Swaziland and Tanzania
authorize officials to commandeer refugee vehicles without compensation,2011
they presumptively breach their duties under Art. 7(1) of the Refugee
Convention.2012
In sum, while refugee law – like general international human rights law –
establishes no clear affirmative right of refugees to have property in the first
place, it does add to general human rights law’s prohibition of discrimination
based on non-citizen status in three ways. First, Art. 13 of the Refugee
Convention makes clear that refugee-specific deprivation of a broad range of
both movable (personal) and immovable (real) property, including acquisition
by lease and related contractual interests, is unlawful. Second, the contingent
standard of treatment that governs Art. 13 sets a duty to consider in good faith
the exemption of refugees from general restrictions that limit property rights,
and in any event to be free of limitations that are inconsistent with a refugee’s
circumstances. And third, Art. 7(1) of the Refugee Convention incorporates by
reference the duty to provide refugees with fair compensation in the event of
property confiscation.

4.5.2 Tax Equity

Countries of refuge rarely apply special rules for the taxation of refugees. When
states do treat refugees differently for tax purposes, the goal may be to assist
them. For example, UNHCR reported that refugees are occasionally exempted
from customs duties on the importation of their personal effects.2013 Less
formal dispensation from taxation may also occur, particularly for those living
in camps.2014 For example, refugees arriving in the Qala en Nahal settlement in
Sudan “were exempted from all taxes, and tractor service charges were also

2009
See text at note 1914. 2010 See text at note 1907. 2011 See text at note 1909.
2012
There is an argument that general principles of law now authorize the subordination of
property rights to important social or public needs: see e.g. Krause, “Right to Property,” at
202 (“All three [regional human rights] conventions require that the interference must be
taken in the public interest and it must be provided for by law. The formulations vary
slightly, but in terms of substance there appear to be no major differences. The question
of public interest is indeed a question where the state is given a wide margin of appreci-
ation”). But confiscation imposed only on refugees (or indeed on aliens generally) is
discriminatory, thus vitiating any such justification: See text at note 1956.
2013
UNHCR, “Information Note on Implementation of the 1951 Convention and the 1967
Protocol relating to the Status of Refugees,” prepared for the Sub-Committee of the
Whole on International Protection, Forty-second Session, July 22, 1991, at [94].
2014
E. Werker, “Refugee Camp Economies,” (2007) 20(3) Journal of Refugee Studies 461
(Werker, “Camp Economies”), at 471.

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 4.5 p r o pe r ty ri g ht s 657

waived,”2015 while Afghan truckers in Pakistan were not subject to the licensing
fees otherwise required of nationals.2016 Similarly, Somali and Sudanese refu-
gees living in Kukuma camp in Kenya were allowed to conduct business free of
taxation until the local business community put pressure on the government to
end what was perceived as an unfair advantage.2017
The imposition of an extra tax burden on refugees is not, however, unheard
of. As part of its Law for the Prevention of Infiltration and to Ensure the
Departure of Infiltrators, Israel imposes a 20 percent tax on refugee wages
(matched by a 16 percent employer contribution). The monies collected are
deposited into a government-managed fund2018 and made available to the
refugee only when he or she leaves Israel. In addition, “[t]he State may
expropriate up to 33% of the total accumulated sum [if] the ‘infiltrator’ does
not leave by the end of his authorized stay period in Israel.”2019
Refugees living in camps may also be subject to taxes of dubious utility. In
Uganda’s Kyangwali camp, for example, refugees faced three types of levy:

The first type was a market participation fee for market days held inside
the [refugee] settlement; approximately USh200 per seller per market day
was being paid, supposedly to the [Refugee Welfare Council (“RWC”)].
The second type apparently also went to the RWC. This taxed the traders a
certain amount per bag of agricultural produce that they had purchased
from the refugees, and was administered upon the lorry’s departure from
Kyangwali. The third type of tax was an annual fee of USh10,000 on each
business being run inside the camp. According to the settlement com-
mander, this “licence fee” was being collected by the mayor of the business

2015
G. Kibreab, Refugees and Development in Africa: The Case of Eritrea (1987), at 83.
2016
Werker, “Camp Economies,” at 471.
2017
G. Verdirame, “Human Rights and Refugees: The Case of Kenya,” (1999) 12(1) Journal of
Refugees Studies 54 (Verdirame, “Kenya”), at 68–69.
2018
UNHCR, “Response by UNHCR to the legal representative on the scheme for the ‘deposit
of funds for the benefit of the foreign worker and ensuring his departure from Israel,’”
July 2017, at [2]. See also “New Tax in Israel Leaves African Migrants Feeling Unwanted
and Unwelcome,” Jerusalem Post, July 3, 2017; E. Kamisher, “Asylum-Seekers Protest
20% Wage Deduction Law,” Jerusalem Post, April 27, 2017.
2019
UNHCR, “Response by UNHCR to the legal representative on the scheme for the ‘deposit
of funds for the benefit of the foreign worker and ensuring his departure from Israel,’”
July 2017, at [3]. “According to the Explanatory Note of the 2014 Draft Law on Departure
of Infiltrators, this law serves two main purposes: to ensure the labour and social rights of
‘infiltrators’ and ‘to create a significant incentive for “infiltrators” to depart Israel on time
(when this is possible) and to prevent their integration in Israel’. An additional objective
is to increase the cost of employment of ‘infiltrators,’ thereby ‘preventing the dismissal of
Israeli workers out of preference for foreign workers whose cost of employment is
currently lower’”: UNHCR, “Response by UNHCR to the legal representative on the
scheme for the ‘deposit of funds for the benefit of the foreign worker and ensuring his
departure from Israel,’” July 2017, at [4].

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 658 4 ri g ht s of re f u g e e s p hy s i c a l l y p r e s e n t

community, and it purportedly allows the business community to main-

tain the trading centre.2020

Sadly, researchers determined that these taxes presented “greater potential for
embezzlement than for community improvement.”2021
There may also be differences in taxation based upon citizenship (rather
than specifically tied to refugee status). For example, since 2017 Saudi Arabia
has levied a tax of 100 riyals per month for each dependent of resident foreign
workers.2022 Differential taxation based on citizenship is less common than it
once was, however, reflecting the pervasive influence of Art. 24 of the OECD
Model Tax Convention on Income and on Capital, mirrored in the United
Nations Model Double Taxation Convention between Developed and
Developing Countries,2023 requiring that resident aliens and resident citizens
be taxed identically, and that non-resident aliens and non-resident citizens be
subject to the same tax burdens. But not all interstate tax treaties incorporate
this principle. For example, Australia has refused to include an article prohib-
iting non-discrimination on the basis of residence in most of its tax treaties.2024
Even when tax laws are facially non-discriminatory, refugees are frequently
differently situated from citizens in ways that may expose them to increased tax

2020
Werker, “Camp Economies,” at 467. 2021 Ibid.
2022
“Rights Group Criticises Saudi Expat Tax for Refugees,” Al Jazeera, July 5, 2017. “The fees
will be levied annually in advance against any dependent or companion of an expatriate
worker in the private sector at the time of issuance or renewal of ‘Resident’ (muqeem)
identity or issuance of an exit and re-entry visa or a final exit visa. The fee will be non-
refundable. The payment of the fee is applicable to all nationalities but there will be an
exemption for those who already enjoy exemption from payment of iqama fee. The
monthly fee per head is SR100 effective from July 2017 and this will be increased to
SR200, SR300, and SR400 from the first day of July 2018, 2019 and 2020 respectively”:
H. Cheruppa, “Dependent Fee to be Paid in Advance and is Not Refundable,” Saudi
Gazette, July 6, 2017.
2023
“Nationals of a Contracting State shall not be subjected in the other Contracting State to any
taxation or any requirement connected therewith which is other or more burdensome than
the taxation and connected requirements to which nationals of that other State in the same
circumstances, in particular with respect to residence, are or may be subjected. This provision
shall, notwithstanding the provisions of Article 1, also apply to persons who are not residents
of one or both of the Contracting States”: Organization for Economic Cooperation and
Development, Model Tax Convention on Income and on Capital (2017), at Art. 24(1)
(“OECD Tax Treaty”), read.oecd-ilibrary.org/taxation/model-tax-convention-on-income-
and-on-capital-2017-full-version_g2g972ee-en#page94, accessed Feb. 15, 2020. See also
United Nations, “Model Double Taxation Convention between Developed and Developing
Countries” (2017 updated version) (“UN Tax Treaty”), www.un.org/esa/ffd/wp-content/
uploads/2018/05/MDT_2017.pdf, accessed Feb. 15, 2020, at Art. 24(1).
2024
B. Arnold, Tax Discrimination Against Aliens, Non-Residents, and Foreign Activities:
Canada, Australia, New Zealand, the United Kingdom, and the United States (1991)
(Arnold, Tax Discrimination), at 258. See also B. Arnold, International Tax Primer
(2016) (Arnold, Tax Primer), at 71–87, 166–167.

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 4.5 pr o p er ty r i g ht s 659

liability. For example, most treaties modeled on the OECD draft do not
provide any protection against tax discrimination on the basis of the geograph-
ical location of property, expenditures, or activities.2025 A refugee who has
spent most of his or her life in a state other than the asylum country will often
have their primary asset base abroad. To the extent that refugees are more
likely than citizens to derive a substantial share of their income from overseas
property, they will be more adversely impacted than citizens by the failure of
most tax treaties to proscribe discrimination on the basis of the geographical
source of income.2026

Refugee Convention, Art. 29 Fiscal Charges

1. The Contracting States shall not impose upon refugees duties,
charges or taxes, of any description whatsoever, other or higher
than those which are or may be levied on their nationals in
similar situations.
2. Nothing in the above paragraph shall prevent the application
to refugees of the laws and regulations concerning charges in
respect of the issue to aliens of administrative documents
including identity papers.
Art. 29 continues the pattern set by earlier treaties2027 of protecting refugees
against the possibility of “special taxes, duties and charges.”2028 Most non-
citizens avoid the prospect of differential tax2029 by reliance on the near-

2025
Arnold, Tax Discrimination, at 46.
2026
Nagy rightly observes that with many refugees now fleeing non-state persecution, “the
likelihood that refugees will legally acquire income from the country of origin will
increase”: B. Nagy, “Article 29,” in A. Zimmermann ed., The 1951 Convention Relating
to the Status of Refugees and its 1967 Protocol: A Commentary 1215 (2011) (Nagy, “Article
29”), at 1226.
2027
Arrangement concerning the Extension to Other Categories of Refugees of Certain
Measures taken in favour of Russian and Armenian Refugees, 2006 LNTS 65, done
June 30, 1928, at Art. 8; Convention relating to the International Status of Refugees,
159 LNTS 3663, done Oct. 28, 1933, at Art. 13; Convention concerning the Status of
Refugees Coming from Germany, 4461 LNTS 61, done Feb. 10, 1938, at Art. 16.
2028
“In principle foreigners residing in a country are subject to the duties, taxes and charges
to which nationals are liable. They may also be subject to special taxes, duties and charges.
A large number of bilateral treaties concluded on the basis of reciprocity stipulate that
nationals of the co-contracting country shall enjoy the same treatment in fiscal matters as
nationals. Stateless persons cannot invoke these treaties”: United Nations, “Statelessness,”
at 31. Thus, “Art. 29 aims at putting the refugee in no worse conditions than those of
nationals in similar situations”: Nagy, “Article 29,” at 1216.
2029
Brian Arnold, for example, argues that “domestic and customary international law do not
constrain a country’s power to discriminate for tax purposes. In this respect, aliens . . . are
fair game for a legislature with protectionist tendencies”: Arnold, Tax Discrimination,
at 23.

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 660 4 r i g h t s of r ef u g e e s p h y s i c a l l y p r e s e n t

universal provision in bilateral tax treaties assimilating citizens and non-

citizens for purposes of fiscal liability.2030
In the case of refugees, however, a protection void might arise from either of
two circumstances. First, there might simply be no tax treaty with the refugee’s
country of citizenship, or that treaty might not include the usual guarantee of
non-discrimination based on citizenship. Second, as tax treaties are typically
enforced on the basis of reciprocity, refugees might be denied tax equality
because of the actions of the very government from which they had fled.2031
The goal of the Refugee Convention is to put refugees in the same position as
the nationals of a contracting state which is in compliance with its duties under
a tax treaty prohibiting discrimination based on nationality.2032
Art. 29 is broadly framed.2033 Refugees must receive national treatment with
respect to “duties, charges or taxes, of any description whatsoever.” This
expansive language clearly includes2034 at a minimum taxes as defined under
the model tax treaties, comprising “taxes on income, on total capital, or on
elements of income or of capital, including taxes on gains from the alienation
of movable or immovable property, taxes on the total amounts of wages or
salaries paid by enterprises, as well as taxes on capital appreciation.”2035 Art. 29
would thus prohibit the imposition on refugees of the 100 riyals per month tax
levied by Saudi Arabia for each dependent of a non-citizen.2036

2030
This rule is contained in the two most influential model tax treaties: OECD Tax Treaty, at
Art. 24; and UN Tax Treaty, at Art. 24. The text of the two rules is identical. “[M]ost
countries tax their residents on their worldwide income and nonresidents on their
domestic source income”: Arnold, Tax Primer, at 71.
2031
This risk is, however, attenuated by Art. 7(2) of the Refugee Convention, which exempts
refugees who have lived in an asylum country for three years from requirements of
legislative reciprocity. See generally Chapter 3.2.2.
2032
Refugees are therefore “not obliged to pay taxes or other charges levied on aliens only”:
Weis, Travaux, at 272.
2033
It is also emphatic. As Nagy notes, “[t]he phrase is categorical, allowing for no exception”:
Nagy, “Article 29,” at 1221.
2034
The one area in which there is a sound argument not to incorporate general understand-
ing of non-discrimination based on citizenship into the duty under Art. 29 of the Refugee
Convention is with regard to taxes assessed by political sub-units of an asylum state. The
general rule is that the duty to tax citizens and non-citizens equally applies not only to
relevant charges made by the national government, but also to “taxes imposed by their
political subdivisions or local authorities”: UN Tax Treaty, at 47. On the other hand, Art.
41 of the Refugee Convention expressly provides that “[i]n the case of a Federal or non-
unitary State . . . [w]ith respect to those articles of this Convention that come within the
legislative jurisdiction of [sub-units] . . . the Federal Government shall bring such articles
with a favourable recommendation to the notice of the appropriate authorities of States,
provinces or cantons at the earliest possible moment”: Refugee Convention, at Art. 41(b).
2035
OECD Tax Treaty, at Art. 2; UN Tax Treaty, at Art. 2.
2036
See text at note 2036. Indeed, there is an argument that even if the dependents are not
themselves refugees, “the Conference of Plenipotentiaries in 1951 adopted Recommendation
B . . . in which the delegates noted with satisfaction that ‘according to the official commentary

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 4.5 p r o pe r ty ri g ht s 661

Because of its expansive framing, however, Robinson argues that the duty
under Art. 29 extends also to “every kind of public assessment, be it of a general
nature (taxes and duties) or for specific services rendered by the authorities to a
given person (charges).”2037 There is support for this broad reading not only in
the unusually sweeping language of the article itself, but also in the rejection by
the Conference of Plenipotentiaries of a proposed exception that would have
allowed governments to continue to impose a refugee-specific stamp duty to
issue identity cards, residence permits, and travel documents. Even though
such levies were to be “wholly applied for the relief of refugees,”2038 the drafters
viewed them as an unacceptable infringement of the duty to tax refugees and
nationals on the same basis.2039 It is thus clear that the various levies assessed
against refugees in Uganda’s Kyangwali Camp2040 are regulated by Art. 29.2041

of the ad hoc Committee on Statelessness and Related Problems the rights granted to a
refugee are extended to members of his family’ . . . [I]t is legitimate to assume that members
of the family of the refugee should benefit from the same rights as the refugee under Art. 29,
unless their stay or residence in the country of asylum is based on another ground, i.e. not on
their membership of the refugee’s family”: Nagy, “Article 29,” at 1221.
2037
Robinson, History, at 148. Drawing on this formulation, Nagy opines that Art. 29
proscribes differential “capital gains, consumption, corporation, income, inheritance,
property, transfer, value added, and wealth taxes [as well as] the so-called ‘poll tax’ (per
capita tax), tolls, and excises, which are not related to the market value of the asset or
service or income taxed or charged, but constitute a fixed sum. Naturally it also extends to
the duties levied by a government on imported goods”: Nagy, “Article 29,” at 1222.
2038
Secretary-General, “Memorandum,” at 31.
2039
“[R]efugees had already been assimilated to nationals in respect of public assistance and
labour legislation and social security. Was it therefore absolutely necessary also to
contemplate imposing a tax to provide relief for refugees? He thought not [emphasis
added]”: Statement of Mr. Miras of Turkey, UN Doc. A/CONF.2/SR.12, July 9, 1951, at
14. In earlier discussion in the Ad Hoc Committee, the Chinese representative had
observed that “[r]efugees are not especially wealthy persons, and if the only intention
. . . was to help them, it would be better to approach the rich”: Statement of Mr. Cha of
China, UN Doc. E/AC.32/SR.39, Aug. 21, 1950, at 23.
2040
See text at note 2020.
2041
The duty to assimilate refugees to nationals does not, of course, prevent governments
from assessing fees for services not required by nationals. In particular, para. 2 of Art. 29
confirms that refugees may be required to pay a modest amount to cover the actual costs
of delivering documentation required by non-citizens, such as identity papers.
“[P]aragraph 2 . . . state[d] expressly that identity papers were included. He would
therefore interpret it as applying to all the documents, including identity papers, referred
to in the draft Convention. There might be other articles necessitating the issue of other
administrative documents, and Contracting States should reserve the right to charge a
small fee for delivering them [emphasis added]”: Statement of the President, Mr. Larsen of
Denmark, UN Doc. A/CONF.2/SR.12, July 9, 1951, at 15. As Weis observes, “[p]aragraph
2 must be read in conjunction with Article 25, paragraph 4 and paragraphs 3 and 10 of the
Schedule. The documents referred to are those mentioned in Articles 25 and 27, but also
other documents required under the Convention”: Weis, Travaux, at 272. Specifically,
para. 3 of the Schedule requires that “[t]he fees charged for issue of the [travel] document
shall not exceed the lowest scale of charges for national passports”; and para. 10 stipulates

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 662 4 righ t s of r e f ugee s ph y sica lly pr es en t

Not only may refugees not be subjected to different assessments than

nationals, but they must not be treated less well than nationals in relation to
any given charge. This is clear from the textual prohibition of both “other or
higher” charges or taxes.2042 The decisions of Kenya,2043 Pakistan,2044 and
Sudan2045 to exempt refugees from some general taxes in order to facilitate
their reestablishment are thus acts that align with the spirit of Art. 292046 (since
exemption is neither an “other” nor a “higher” charge or tax). The parallel
phrase in model tax treaties, which prohibits “other or more burdensome”
taxation, requires “that when a tax is imposed on nationals and foreigners in
the same circumstances, it must be in the same form as regards both the basis of
charge and the method of assessment, its rate must be the same and, finally, the
formalities connected with the taxation (returns, payment, prescribed times,
etc.) must not be more onerous for foreigners than for nationals.”2047 Israel
contravenes this duty by imposing its “infiltrator” tax on refugees predomin-
antly from Eritrea and Sudan.2048 Not only are the deduction rates higher than
those for Israelis engaged in comparable employment,2049 but the inability to
access those funds other than by agreeing to give up one’s claim to asylum in
Israel2050 and the government’s right to expropriate up to 33 percent of the
accumulated sum2051 clearly make it a “more onerous” regime than the general
employment savings tax applied to non-refugees.2052
The duty to treat refugees on terms of equality with nationals applies,
however, only to the extent that refugees and nationals can be said to be “in
similar situations.” In Robinson’s view, differences in tax liability between

that “[t]he fees for the issue of exit, entry or transit visas shall not exceed the lowest scale
of charges for visas on foreign passports”: Refugee Convention, at Schedule.
2042
Accord Nagy, “Article 29,” at 1223. 2043 See text at note 2017.
2044
See text at note 2016. 2045 See text at note 2015.
2046
“Naturally, States may – as a gesture – give preferential treatment in [tax] matters to
refugees”: Nagy, “Article 29,” at 1216. To avoid an allegation of discrimination against
citizens, such dispensations are most sensibly understood as designed to ensure substan-
tive equality given the additional hardships faced by refugees: see Chapter 3.4.
2047
OECD Tax Treaty, at Art. 24(1) commentary; UN Tax Treaty, at Art. 24(1) commen-
tary [15].
2048
See text at note 2018.
2049
UNHCR, “Response by UNHCR to the legal representative on the scheme for the ‘deposit
of funds for the benefit of the foreign worker and ensuring his departure from Israel,’”
July 2017, at [2].
2050
Indeed, the government’s own explanatory note indicated that the goal of the differential
tax was “to create a significant incentive for ‘infiltrators’ to depart Israel on time (when
this is possible) and to prevent their integration in Israel [emphasis added]”: ibid. at [4].
2051
See text at note 2019.
2052
The tax is also in violation of the duty not to penalize refugees for illegal entry (see
Chapter 4.2.2) and not to discriminate between or among refugees (see Chapter 3.4).
These and other concerns are canvassed in UNHCR, “Response by UNHCR to the legal
representative on the scheme for the ‘deposit of funds for the benefit of the foreign worker
and ensuring his departure from Israel,’” July 2017.

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 4.5 pr o p er ty r i g h ts 663

citizens and refugees that are attributable to “deriving a certain amount of

income, having income abroad, [or] having special income sources”2053 do not
infringe Art. 29. The equality guaranteed by this article of the Refugee
Convention is, in other words, formal equality. There is no violation of Art.
29 if refugees in practice pay more tax than citizens not because they are
refugees or non-citizens, but instead because their primary source of income
is universally taxed in the asylum country at a higher rate than other sources of
income. Thus, even though refugees are more likely than others to derive
income from overseas property, Art. 29 would not prohibit a regime that
taxes income from overseas property (for all) more severely than it does
income from domestic property.
Similarly, if nationals who are not residents are taxed differently from
nationals who are residents, there can be no complaint if non-resident refugees
are taxed differently from resident refugees2054 – as is the case, for example, in
Australia.2055 But any attempt to treat non-resident citizens and non-resident
aliens differently for income tax purposes would run afoul of the Refugee
Convention. The 1951 Refugee Convention, unlike its predecessors, does not
limit the duty of tax equality only to resident refugees.2056 Every person who is
2053
Robinson, History, at 148.
2054
This is clear from an exchange at the Conference of Plenipotentiaries. In response to the
Swedish representative’s comment that his country taxed non-citizen commercial travel-
ers and performing artists differently from nationals, the President of the Conference
affirmed that only differences grounded in substance, not in nationality, would be
allowed under Art. 29. “[T]he problem referred to by the Swedish representative, which
was a question of domicile or habitual residence rather than nationality, could be solved
within the framework of paragraph 1. For example, if a Swedish artiste resident in
Denmark went back to Sweden to perform for a short period, he would be subject to
the same taxes as, for instance, a Danish artiste in the same position”: Statement of the
President, Mr. Larsen of Denmark, UN Doc. A/CONF.2/SR.12, July 9, 1951, at 16. The
principle is also endorsed in the Commentary to the UN model tax treaty. “Consequently
if a Contracting State, in giving relief from taxation on account of family responsibilities,
distinguishes between its own nationals according to whether they reside in its territory
or not, that State cannot be obliged to give nationals of the other State who do not reside
in its territory the same treatment as it gives its resident nationals [so long as it]
undertakes to extend to them the same treatment as is available to its non-resident
nationals”: UN Tax Treaty, at 208.
2055
See text at note 2024.
2056
As initially proposed, the Convention continued the traditional practice of reserving the
benefit of the tax equality rule for resident refugees. “The High Contracting Parties
undertake not to impose upon refugees (or stateless persons) residing in their territory
duties, charges or taxes, under any denomination whatsoever, other or higher than those
which are or may be levied on their nationals in similar situations”: Secretary-General,
“Memorandum,” at 31. As reframed by the Ad Hoc Committee, however, the residency
requirement was deleted. “The Contracting States shall not impose upon refugees in their
territory duties, charges or taxes”: Ad Hoc Committee, “First Session Report,” at 7. With
no explicit discussion of the matter, the Conference of Plenipotentiaries deleted the
reference to “refugees in their territory” in favor of “refugees.” Theoretically, then, even

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 664 4 righ ts of r efug ee s ph y sica lly p r es en t

in fact a refugee, even if his or her presence in a state party is only transient,
must be equated to citizens for purposes of the imposition of taxes and related
charges. While most forms of tax do not apply to non-residents, duties on
imports or exports are examples of charges which are assessed against non-
residents, in relation to which non-resident refugees must be treated on terms
of equality with non-resident citizens.2057

4.6 Family Rights

A critical imperative for most refugees is to avoid separation from their
families. As UNHCR has observed, “family members together have more
strength to face adversity than those apart.”2058 While family relations are
important means of satisfying physical and psychological needs during normal
times, these attachments take on even greater significance when involuntary
migration deprives refugees of their traditional support networks.2059 The
more threatening the environment, the more family members will look to
each other for intimacy and security.2060
Yet the very crises that force refugees to flee often shatter the unity of their
families. Family members may not be able to leave together,2061 or may be
separated in the chaos of flight.2062 Refugees separated from their families are
not only less equipped to cope with life in an asylum state, but are often prone
to loneliness, despair, and anxiety over the fate of their loved ones left behind in
dangerous situations.2063 As Dixon-Fyle writes, “[t]heir relief at having

refugees not in a state party’s territory, but who are nonetheless under its authority for tax
purposes, must be granted the benefit of Art. 29. See generally Chapter 3.1.1. See also
Nagy, “Article 29,” at 1222.
2057
“Art. 29 deals with refugees in general; in other words, to enjoy equal status with nationals
‘in similar circumstances’ of the country where the fiscal charges are payable, the refugees
need not reside in either the state concerned or in another Contracting State”: Robinson,
History, at 148.
2058
UNHCR, “Families in Exile: Reflections from the Experience of UNHCR” (1995)
(UNHCR, “Families”), at 3.
2059
H. Williams, “Families in Refugee Camps,” [Summer 1990] Human Organization 103.
2060
J. Barudy, “The Therapeutic Value of Solidarity and Hope,” in D. Miserz ed., Refugees –
The Trauma of Exile 142 (1988). In particular, children have an increased need for
physical contact with their parents, and often fear separation from their family above
all else: E. Ressler et al., Unaccompanied Children: Care and Protection in Wars, Natural
Disasters and Refugee Movements (1988) (Ressler et al., Unaccompanied Children), at 133,
147, and 150.
2061
“Facing persecution and often death, refugee families are frequently forced to separate
while fleeing amid mass destruction, spraying bullets, bombs, and guerilla warfare”:
UNHCR, “Families,” at 1.
2062
Missing person notices have cropped up across Europe, as “people lose each other amid
misunderstandings, blocked borders, and overwhelmed officials and aid workers”:
L. Gall, “Dispatches: Losing Family Members at Europe’s Borders,” Sept. 24, 2015.
2063
UNHCR, “Year of the Family,” (1994) 95 Refugees 3, at 5.

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 4.6 f amily rights 665

reached safety may be so overshadowed by distress, guilt and worry about

those who remain behind that the chances of their settling down and becoming
fully integrated in their host country may be seriously reduced.”2064
There are few legal impediments to the maintenance of family unity in most
less developed asylum states. Because these countries normally rely on group
status determination of refugees, the acceptance of members of refugee fam-
ilies able to reach their territory tends to occur as a matter of course, with no
differentiation made between the arrival of some family members as part of an
initial influx and the subsequent arrival of others.2065 In the global South, the
more serious obstacle to refugee family unity results from practical difficulties
in tracing family members who may be in another camp, or even in another
country.
Most critically, there are often large numbers of unaccompanied children in
massive refugee flows.2066 Part or all of a child’s family may be separated or
even killed. Children may be sent out of the country, sometimes with siblings
and sometimes alone, while the parents remain. Alternatively, children may
remain behind temporarily while part of the family leaves to get established in a
new land; they may also have been separated from their family after being
abducted by an army or militia.2067 In some truly extreme situations, parents
are compelled voluntarily to become separated from their children as part of a
survival strategy,2068 or to enable their children to take advantage of superior
opportunities often available to unaccompanied minors.2069 In addition to
such emergency-related circumstances, refugee families may become separated
because of the same sorts of social, psychological, and cultural problems that
arise generally in families. In other situations, “the separations are the
unplanned result of the way relief assistance is provided. For example, relief
workers have sometimes removed children from a dangerous area or to a
medical facility without notifying the family or others in the vicinity.”2070
When resource constraints or logistical concerns conspire to keep family

2064
K. Dixon-Fyle, “Reunification: Putting the Family First,” (1994) 95 Refugees 6 (Dixon-
Fyle, “Reunification”), at 9.
2065
Ibid. at 7.
2066
For example, more than 20 percent of refugees who sought asylum in Europe in 2015
were unaccompanied children: “IOM and UNICEF Data Brief: Migration of Children to
Europe,” Nov. 20, 2015, at 1. On a global scale, UNICEF estimates the total number of
refugee children traveling alone to have increased fivefold since 2010: “UNICEF: Number
of Unaccompanied Refugee Children Reaches ‘Record High,’” Deutsche Welle, May 18,
2017.
2067
F. Ahearn and J. Athey, Refugee Children: Theory, Research, and Services (1991), at 11.
2068
For example, older boys may be encouraged to fend for themselves, and older girls “to
attach themselves to more prosperous and safe families as helpers”: L. Bonnerjea,
“Disasters, Family Tracing and Children’s Rights: Some Questions About the Best
Interests of Separated Children,” (1994) 18 Disasters 277, at 278.
2069
Ressler et al., Unaccompanied Children, at 119. 2070 Ibid. at 118–119.

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 666 4 r igh ts of r efug ee s ph ys ica lly p r es en t

members apart – and particularly when children are missing – there is always a
fear that “[s]ome family members [will] spontaneously repatriate to their
homeland in precarious political circumstances to find their loved ones –
and never return.”2071
In the developed world, family unity concerns most commonly arise in
relation to reunification efforts, rather than as refusals of entry at the bor-
der.2072 In contrast to the situation in poorer states, however, much of the
difficulty faced by refugees seeking to reunite their families tends to result from
the application of administrative requirements governing such issues as the
point at which refugees should be allowed to sponsor the admission of their
family members, which family members may be admitted, and what criteria
must be met.
Virtually all Northern states decline family reunification to refugees await-
ing the results of status determination.2073 On the other hand, once claimants
are formally recognized as Convention refugees, most developed countries
grant them a formal legal right to be reunited with family members. There is
more ambiguity where a refugee is granted some alternative status, rather than
full Convention refugee status. In Australia, for example, refugees who arrive
by sea or air without a valid visa are granted only temporary protected status,
which does not entitle them to family reunification.2074 Canadian law with-
holds the right to sponsor family members for five years from refugees who are

2071
UNHCR, “Families,” at 3.
2072
See also G. Fourlanos, Sovereignty and the Ingress of Aliens (1986) (Fourlanos,
Sovereignty), at 111: “When it comes to immigration rights deriving from the principle
of family unity, the situation is rather obscure. A specific right to enter and/or to reside is
not very often mentioned in international agreements, but it seems that, in practice,
States understand the individual right to family unity as including the right to enter their
territory and to reside there (i.e. not to be expelled).”
2073
The European Union standards on family reunification are explicitly stated not to apply
to “a third-country national applying for recognition of refugee status whose application
has not yet given rise to a final decision”: Council Directive on the Right to Family
Reunification, Doc. 2003/86/EC (Sept. 22, 2003) (EU Family Reunification Directive), at
Art. 3(2)(a).
2074
“Refugees who arrived in Australia by boat and have yet to achieve citizenship have
virtually no opportunities for family reunion. While they can be technically eligible to
apply to sponsor family members in some situations, their family reunion applications
are given ‘lowest processing priority’ unless there are special circumstances of a compas-
sionate nature or where processing of applications would otherwise be unreasonably
delayed. The ‘special circumstances of a compassionate nature’ or reasonable timeframe
are not defined in the Ministerial Directive [No. 72]. It effectively means for the vast
majority of applicants, their applications have very little chance of success. TPV
[Temporary Protection Visa] and SHEV [Safe Haven Enterprise Visa] holders cannot
sponsor family members under any program and will not have the opportunity to become
citizens unless the Minister for Immigration grants them permanent residency or they are
able to satisfy the eligibility criteria for a permanent Australian visa (for SHEV holders):
Refugee Council of Australia, “Recent changes in Australian refugee policy,” June 8, 2017.

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 4.6 f a m i l y ri g h t s 667

part of a group deemed to have arrived in Canada irregularly;2075 New Zealand

similarly imposes a three-year waiting period for refugees deemed part of a
“mass arrival.”2076 Comparable practices occur in relation to persons granted
alternative forms of protected status in much of Europe.2077 Following the
arrival of nearly one million refugees in 2015, Germany postponed family
reunification for persons granted subsidiary protection for more than two
years; this policy coincided with a sharp rise in the granting of subsidiary

2075
“Applications or requests from ‘designated foreign nationals’ will not be considered for at
least five years . . . and the processing of these applications or requests will be suspended if
a foreign national becomes a ‘designated foreign national’ after his or her application or
request is made. The practical consequence of these waiting periods is that a ‘designated
foreign national’ can obtain refugee status or the status of a person in need of protection
but will need to wait five years before being able to apply for permanent residence. A
second practical consequence is that ‘designated foreign nationals’ will not be able to
sponsor their family members to come to Canada as they must have acquired permanent
residence status to do so”: Canada, Library of Parliament, “Bill C-31: An act to amend the
Immigration and Refugee Protection Act, the Balanced Refugee Reform Act, the Marine
Transportation Security Act and the Department of Citizenship and Immigration Act,”
Legislative Summary, Publication No. 41-1-C31-E, Feb. 29, 2012, at 15.
2076
“In 2013, laws were passed to address ‘mass arrivals’ of asylum seekers (that is, asylum
seekers arriving in NZ in a group of 30 or more). As part of the changes, asylum seekers
who arrive in NZ as part of a ‘mass arrival’ and who are found to be refugees are to be
granted temporary visas and to have their status reassessed after three years before they
are eligible for permanent residence. Under the changes, immediate family members
may be sponsored only after residence has been granted, and extended family members
are ineligible for sponsorship. According to the Immigration Minister Michael
Woodhouse: ‘These policy changes are considered to be an important deterrent to a
mass arrival. Asylum seekers may be less likely to endanger their lives by attempting to
travel to New Zealand by sea if they know they must wait for three years and have their
claim reassessed before they can apply for residence, and if they are unable to reunite
with extended family members’”: Andrew & Renata Kaldor Centre for International
Refugee Law, “Factsheet: Temporary Protection Visas and Safe Haven Enterprise
Visas,” May 27, 2017, at 8.
2077
The EU Family Reunification Directive excludes beneficiaries of temporary and subsid-
iary protection from the scope of its protection: EU Family Reunification Directive, at
Art. 3(2)(b)–(c); but see Communication from the Commission to the European
Parliament and the Council on Guidance for the Application of Directive 2003/86/EC
on the Right to Family Reunification, Doc. COM/2014/2010/FINAL (Apr. 3, 2014), at 24–
25 (urging states to “adopt rules that grant similar rights to refugees and beneficiaries of
temporary or subsidiary protection”). Although the 2001 Directive on Temporary
Protection contains a clear right to family reunification for the beneficiaries of temporary
protection in member states (EU Temporary Protection Directive, at Art. 15), in practice,
its provisions have not yet been invoked. “Nonetheless it is noteworthy that the TPD . . .
sets three conditions, namely that the family ties existed already in the country of origin,
that the ties were disrupted due to circumstances surrounding the mass influx, and that
the family members must be either beneficiaries of temporary protection themselves (but
present in another member state) or in need of protection”: C. Costello et al., “Realising
the Right to Family Reunification of Refugees in Europe,” Issue paper, Council of Europe,
June 2017 (Costello, “Family Reunification”), at 31.

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protection rather than refugee status.2078 Delays in family reunification were

also implemented by Denmark, Sweden, Austria, and Switzerland with regard
to beneficiaries of subsidiary and temporary protection;2079 Cyprus and Greece
removed the right from the former group altogether.2080
Even if entitled to sponsor the entry of family members, a second question
arises with the definition of the specific relationships which qualify as family
members for purposes of reunification. Some states resist any understanding of
“family” that goes beyond an opposite-sex partner2081 and minor, dependent
children.2082 In Europe, difficulties often arise if a refugee is not formally
married to his or her spouse, as each state is left to decide for itself whether
or not to recognize the relationship;2083 a second or subsequent spouse in a
polygamous marriage cannot be sponsored at all.2084 A number of states have
also taken the liberty of confining family reunification to persons whose
relationships predate their arrival to seek protection.2085
2078
“After the new restriction on family reunification entered into force in March 2016, there
was a sharp rise in subsidiary protection grants. These subsidiary protection beneficiaries
would not be entitled to file an application for family reunification until after March 2018.
Notably too, of those granted subsidiary protection, almost 26,000 persons (29%) filed an
appeal against this decision, creating a large additional burden for the administration and
the courts. Of the 2,365 appeals decided by the end of October 2016, three quarters
resulted in the appellant being recognised as a 1951 Convention refugee. Among appel-
lants from Syria, the rate of success on appeal (that is, when the outcome was that the
appellant ought to have been recognised as a 1951 Convention refugee) was 81%”:
Costello, “Family Reunification,” at 34. The policy was later extended until the end of
July 2018.
2079
Costello, “Family Reunification,” at 18, 35, 40, 41. 2080 Ibid. at 34.
2081
Even in states that recognize same-sex unions, refugees seeking reunification may
nonetheless face barriers in the type and extent of evidence required to establish such a
relationship, as well as the fact that “most refugees flee states where this status [civil
partnership] is not legally available”: ibid. at 37.
2082
Some states recognize additional conditions for even these categories. In the United
Kingdom, for example, “the definition of ‘child’ adds additional criteria beyond minority
– in addition the child must be ‘not leading an independent life’ and must have been ‘part
of the family unit of the refugee or person with humanitarian protection (i.e. a subsidiary
protection beneficiary) at the time when the refugee fled.’ At one point, this latter
requirement was interpreted to mean that children born post-flight (even if conceived
pre-flight) were not eligible for reunion, but the practice on this matter has changed”:
ibid., at 38. Beyond this narrow category of family members, even the discretionary
authority of European Union states is limited. They may only elect to admit other first-
degree relatives who are dependent on the refugee, and adult unmarried children who are
incapacitated: EU Family Reunification Directive, at Art. 4(2).
2083
EU Family Reunification Directive, at Art. 4(3).
2084
Ibid. at Art. 4(4). See also Communication from the Commission to the European
Parliament and the Council on Guidance for the Application of Directive 2003/86/EC
on the Right to Family Reunification, Doc. COM/2014/2010/FINAL (Apr. 3, 2014), at 22.
2085
This option is explicitly provided for in the EU Family Reunification Directive, at Art.
9(2). See also Communication from the Commission to the European Parliament and the
Council on Guidance for the Application of Directive 2003/86/EC on the Right to Family

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 4.6 f a m i l y ri g h t s 669

Even where a refugee is in principle entitled to reunification with particular

family members, there may be additional criteria to be met. The United
Kingdom2086 and Australia,2087 for example, require some refugees to prove
their financial ability to meet the needs of sponsored family members hoping to
join them from abroad. European Union law, in contrast, does not condition
family reunification on such considerations so long as the application is filed
within three months of the formal recognition of refugee status.2088 After that
time, however, family reunification may be subject to the sponsoring refugee’s
ability to provide his or her family with accommodation and health insurance,
and to meet their other financial needs.2089 More generally, the European
Union also authorizes the rejection of any application for family reunification
on the sweeping basis of “public policy, public security or public health.”2090

Reunification, Doc. COM/2014/2010/FINAL (Apr. 3, 2014), at 21; and Costello, “Family

Reunification,” at 39–40.
2086
Relevant rules under the “Minimum Income Requirement” dictate that sponsors have a
“gross annual income of at least £18,600, with an additional £3,800 for the first dependent
non-EEA national child and £2,400 for each additional child. Only the sponsor’s earnings
are to be taken into account: the prospective earnings of an entering partner, and any
support from third parties, are ignored”: R (MM Lebanon) v. Secretary of State for the
Home Department, [2017] UKSC 10 (UK SC, Feb. 22, 2017), at [1]. An exception is made,
however, for persons who were family members prior to the refugee’s departure from his
or her country of origin in order to seek asylum: UK Immigration Rules, paras.
352(A)–(F).
2087
Under Australia’s family stream of the Migration Program, sponsors must agree to meet
the needs of family members for ten years, and provide a bond of A$10,000 for the
principal applicant and A$4,000 for any additional adult applicant. This is in addition to
the sponsorship fees, which begin at A$6,865 for partners and, according to one study,
could amount to nearly A$100,000 for both parents: Refugee Council of Australia,
“Addressing the Pain of Separation for Refugee Families,” Nov. 2016, at 5.
2088
EU Family Reunification Directive, at Art. 12(1). See also Communication from the
Commission to the European Parliament and the Council on Guidance for the
Application of Directive 2003/86/EC on the Right to Family Reunification, Doc. COM/
2014/2010/FINAL (Apr. 3, 2014), at 21.
2089
EU Family Reunification Directive, at Arts. 7(1), 12(1); see also Communication from the
Commission to the European Parliament and the Council on Guidance for the
Application of Directive 2003/86/EC on the Right to Family Reunification, Doc. COM/
2014/2010/FINAL (Apr. 3, 2014), at 21. “In 2012, UNHCR noted that most states did not
make use of the facility in the FRD to limit refugees’ preferential access to family
reunification using this three-month time limit . . . Since 2012, an increasing number of
states apply the short time limit of three months”: Costello, “Family Reunification,”at 41.
Countries that have since imposed restrictions include Germany, Luxembourg, Sweden,
and Hungary; Norway permits exemption from these requirements for those who apply
within one year following the grant of permanent residence: ibid. at 41–42.
2090
EU Family Reunification Directive, at Art. 6(1). Somewhat ominously, a footnote to this
provision makes clear that “[t]he notion of public policy and public security covers also
cases in which a third-country national belongs to an association which supports
international terrorism, supports such an association or has [extremist] aspirations”:
ibid. See also Communication from the Commission to the European Parliament and the

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Finally, there are often prolonged delays in authorizing family reunification

in developed states. Complex procedures absorb tremendous amounts of time
and energy, and “keep refugees’ minds riveted to the past and to trauma,
instead of allowing them and their families to start thinking of the future and
rebuilding their lives.”2091 In Australia, exorbitant costs associated with the
official family sponsorship program have led refugees to seek reunification
through the Special Humanitarian Program. But because of this program’s low
numerical cap, a backlog means that applications take years to process.2092
Many Guatemalan and Salvadoran refugees in the United States were kept
waiting for as long as twenty years after their arrival before being granted the
formal status that entitled them to sponsor the arrival of close family mem-
bers.2093 The EU Family Reunification Directive explicitly provides for delays
of up to three years before sponsors residing in EU Member States may apply
on behalf of their family members.2094 In some cases, delays may defeat the
very possibility or logic of reunification, as children reach the age of majority

Council on Guidance for the Application of Directive 2003/86/EC on the Right to Family
Reunification, Doc. COM/2014/2010/FINAL (Apr. 3, 2014), at 10–11.
2091
Dixon-Fyle, “Reunification,” at 9.
2092
Refugee Council of Australia, “Australia’s Refugee and Humanitarian Program 2017–18:
Community Views on Current Challenges and Future Directions,” May 2017, at 43. Nor
are waiting periods for sponsorship through the family stream of the Migration Program
any shorter. Due to restrictive quotas for various immigrant sub-classes, it was estimated
that “applications for Carer visas that were lodged in 2014 are likely to take 4.5 years to be
finalised, while the applications for Remaining Relative and Aged Dependent Relative
lodged in 2014 are likely to take approximately 50 years to be finalised. As Joe Caputo, the
Chairperson of the Federation of Ethnic Communities’ Councils of Australia (FECCA),
said on 30 September 2016: ‘The waiting lists for those visas are [so] obnoxiously long,
that often people die waiting for their visas’”: Refugee Council of Australia, “Addressing
the Pain of Separation for Refugee Families,” Nov. 2016, at 6.
2093
“Until recently, [Immigration and Naturalization Service] officials were estimating that it
could take as many as 20 more years to process thousands of Salvadorans and
Guatemalans . . . who fled their homelands in the 1980s and have lived for years in
legal limbo . . . The hardest moment [for Salvadoran refugee Juana Fuentes] occurred in
1996, when her daughter, who lived with her grandmother, needed a stomach operation.
Intensely worried, Fuentes considered going back to El Salvador. ‘I could go to the
operation,’ Fuentes said. ‘But then I couldn’t come back . . . ’ The daughter tried to obtain
a visa to visit her in Washington but was turned down”: M. Sheridan, “For Many Seeking
Asylum, a Long Wait; Immigration and Naturalization Service Pledges Faster Processing
of Cases,” Washington Post, Jan. 17, 2002, at T-09.
2094
“Member States may require the sponsor to have stayed lawfully in their territory for a
period not exceeding two years, before having his/her family members join him/her. By
way of derogation, where the legislation of a Member State relating to family reunification
in force on the date of adoption of this Directive takes into account its reception capacity,
the Member State may provide for a waiting period of no more than three years between
submission of the application for family reunification and the issue of a residence permit
to the family members”: EU Family Reunification Directive, at Art. 8.

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 4.6 f amily r ights 671

and are no longer eligible for admission,2095 parents die, or marital relation-
ships break down under the strain of separation.
Even once admitted to a state of refuge, family unity may on occasion be
forcibly disrupted by the application of formal state policy. For example,
hundreds of male refugees from Bosnia and Croatia were taken from their
families in informal conscription “raids” conducted by the Serbian govern-
ment during the mid-1990s.2096 Government-backed military recruiters in
Kenya similarly lured young Somalis – including boys under eighteen – from
refugee camps to fight extremists in their home country.2097 Parents who
sought to find their sons “were not able to do so because they lack Kenyan
government permission to leave the camps.”2098 Another extreme example was
the en masse detention and expulsion in 2006 of Burundian and Rwandan
refugees by Tanzanian forces,2099 forcing those who had married Tanzanian

2095
Policies giving rise to this effect have been identified in Sweden and Austria (UNHCR and
Council of Europe, “Unaccompanied and Separated Asylum-Seeking and Refugee
Children turning Eighteen: What to Celebrate?” Mar. 2014, at 21), as well as Finland
and the Netherlands (Costello, “Family Reunification,” at 36–37).
2096
“The Serbian Ministry of the Interior ran the conscription-by-force operation, with
assistance from the Yugoslav army and . . . [sometimes] with that of the military police
from Krajina. Serb refugees from Bosnia and Croatia have been the main targets of the
mass conscription . . . Men have been taken off the streets, from farmers’ markets,
restaurants and university dormitories; they have been taken off buses, from work,
even from high school proms”: Humanitarian Law Center, “Spotlight Report No. 18:
The Conscription of Refugees in Serbia” (1995), at 1. Forcible conscription has also been a
risk for Liberian refugees in Guinea: Médecins Sans Frontières USA, “A Voice from the
Field: Liberian Refugees Pay a High Price for Crossing into Guinea” (Dec. 2002); and for
refugees in Pakistan living near the border with Afghanistan: Human Rights Watch,
“Letter to General Pervez Musharraf,” Oct. 26, 2001.
2097
Human Rights Watch, “Kenya: Stop Recruitment of Somalis in Refugee Camps,” Oct. 22,
2009.
2098
Ibid.
2099
“Between May 2006 and May 2007, Tanzania expelled roughly 15,000 Rwandans and
several thousand Burundians including some registered refugees, some of whom had
lived in Tanzania since the early 1960s. Officials reported that the deportees had declined
offers of permanent residence or citizenship. According to the US State Department,
UNHCR and the Tanzanian Government ‘strongly encouraged’ Burundian and
Congolese refugees to repatriate, by closing 20 schools in the camps and stopping refugee
income projects. During the year, five camps closed and 38,300 Burundian refugees and
19,500 Congolese repatriated with UNHCR assistance”: US Committee for Refugees and
Immigrants, World Refugee Survey 2008: Tanzania, June 19, 2008. According to Human
Rights Watch, Tanzanian officials also targeted persons who had naturalized: “Tanzanian
soldiers, police and militia have beaten and threatened people whom they wanted to expel
and have looted and destroyed their property. In some places, these roundups have
resulted in parents being separated from children, including infants being separated
from their mothers. In addition, police have confiscated and destroyed documents
proving that the targeted persons were naturalized Tanzanian citizens”: Human Rights
Watch, “Tanzania: Expulsions Put Vulnerable People at Risk,” May 8, 2007.

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citizens to leave their spouses and children behind.2100 And in the United States,
refugee children have been sent to separate detention facilities – sometimes
hundreds of miles from their parents – while their claims were being assessed.2101
Less egregiously, family unity may also be adversely affected by host country
policies which are simply not carefully designed or administered. For example,
families may become permanently separated by policies designed to guard against
“marriages of convenience,” as when a state requires spouses to reside under the
same roof following entry into the country of refuge.2102 In such circumstances, the
failure to account for such issues as shortage of available housing, employment
location, or health issues as possible grounds for separate residences risks unduly

2100
“Burundi Refugee Families Split Up,” BBC, Aug. 14, 2006; see also “Expelled Burundians
are Illegal Immigrants, Government says,” IRIN News, Aug. 16, 2006.
2101
The change in policy, which previously permitted the detention of minors together with
their parents, stemmed from an announcement by US Attorney General Jeff Sessions to
subject persons arriving irregularly – including refugee claimants – to criminal prosecu-
tion: A. Jenkins, “Jeff Sessions: Parents and Children Illegally Crossing the Border will be
Separated,” Time, May 7, 2018. Under the policy, “[a]nyone who crosses the border
illegally is subject to federal criminal prosecution. As is the case in criminal proceedings –
regardless of the immigration status of the criminal offender – the individual being
prosecuted will be transferred to federal criminal custody for breaking United States
law. Therefore, families with children that enter into the United States illegally will be
separated when the parent is transferred to federal custody for breaking United States
law”: Statement by Health and Human Services Deputy Secretary on Unaccompanied
Alien Children Program, May 28, 2018, www.hhs.gov/about/news/2018/05/28/
statement-hhs-deputy-secretary-unaccompanied-alien-children-program.html, accessed
Feb. 20, 2020. While the officially stated aim of the policy was to address the trafficking of
minors, comments by authorities confirm the use of family separation as a “tough deter-
rent” and “[a] much faster turnaround on asylum seekers”: Transcript: White House Chief
of Staff John Kelly’s Interview with NPR, May 11, 2018; see also J. Hirschfeld and M. Shear,
“How Trump came to Enforce a Practice of Separating Migrant Families,” New York Times,
June 16, 2018. The family separation policy was in principle suspended on June 20, 2018
(www.whitehouse.gov/presidential-actions/affording-congress-opportunity-address-fam
ily-separation/, accessed Feb. 20, 2020). But an exception allowing family separation where
there is a “determination that the parent is unfit or presents a danger to the child” has been
aggressively relied upon to separate a further 1,100 families since then: J. Washington, “The
Government has Taken at Least 1,100 Children from their Parents since Family Separations
Officially Ended,” The Intercept, Dec. 9, 2019.
2102
In Belgium, for instance, “one of the conditions for family reunification is that the family
member who joins a sponsor must come and live together (under the same roof) as the
sponsor. The right of residence of the family member may be withdrawn, within five years
following the granting of the residence right, if the family member doesn’t live together
with the sponsor anymore”: European Migration Network, “Ad-hoc Query on Family
Migration: Not Living Together as a Possible Ground for Withdrawing the Right of
Residence of Family Members,” July 5, 2017. In contrast, Austria, the Czech Republic,
Italy, Lithuania, Luxembourg, Slovenia, and the United Kingdom are among states that
do not oblige beneficiaries of family reunification to reside with their sponsors, though
some take beneficiaries’ physical residence into account in determining the existence of a
bona fide marriage: ibid.

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 4.6 f amily r ights 673

separating families whose relationships are otherwise intact.2103 Bureaucratic inter-

ference with family unity may also follow from the mechanistic administration of
superficially reasonable policies. At the Ukwimi refugee settlement in Zambia, even
close family members were prevented from living near each other by the rigid
application of a policy that land parcels should be allocated strictly according to
time of arrival.2104 Those processed for resettlement elsewhere have also faced
barriers to their continued union, as demonstrated by the availability of relocation
overseas to Bhutanese refugees in Nepal, but not to their Nepalese citizen
spouses.2105 And while refugee families at Australia’s offshore processing center
in Nauru are in principle eligible for resettlement to the United States, those with
relatives receiving medical care on the Australian mainland face the threat of
permanent separation.2106
Recommendation “B”, Final Act of the Conference
of Plenipotentiaries
The Conference, [c]onsidering that the unity of the family, the
natural and fundamental group of society, is an essential right of
2103
States taking these issues into account include Croatia, Estonia, France, Germany, and the
Netherlands: ibid.
2104
“[O]ne refugee woman commented that when she came to Ukwimi, the lorry was full, so
that her mother, father, four uncles and two brothers ended up in different villages”:
R. Black and T. Mabwe, “Planning for Refugees in Zambia: The Settlement Approach to
Food Self-Sufficiency,” (1992) 14(1) Third World Planning Review 14.
2105
While Bhutanese refugees are in principle eligible for resettlement to seven countries – the
United States, Canada, Australia, New Zealand, the Netherlands, Denmark, and Norway –
their Nepalese spouses are not: “Heartache for Wives of Bhutanese Refugees,” IRIN News, July
2, 2009.
2106
At the core of the conflict is Australia’s suspension of resettlement eligibility for those who
travel to the mainland for medical treatment: “Dutton said the government’s policy was that
nobody brought to Australia from offshore for medical treatment could be considered for
resettlement in the United States. ‘We have been clear on people who have received medical
advice here: it was the reality for people on Nauru that if people left and came to Australia then
consideration of their file would be suspended until they returned back to Nauru’”: B. Doherty,
“Peter Dutton Defends Nauru Policy after Refugees Told to Separate from Family,” Guardian,
Dec. 6, 2017. In the case of an offshore refugee whose wife was flown to Australia to give birth
and who had not yet returned due to medical reasons, “[h]e has been told by the ABF
[Australian Border Force] that he has two choices: either separate from his wife and relinquish
all rights to his child in order to apply for resettlement in the US as a single man; or bring his
family, including his Australian-born child, to Nauru to apply for a chance – but with no
guarantee – of American resettlement together. The US has, so far, preferred to take single
people rather than families for its resettlement places and Shirmohamadi’s wife has been
advised by doctors not to return to Nauru because of ongoing complex health issues . . . Several
department sources, and sources on Nauru, have confirmed to the Guardian that it is
‘unofficial policy’ to use family separation as a coercive measure to encourage refugees to
agree to return to Nauru, or even to abandon their protection claims altogether. The depart-
ment has said in public statements that families are separated to keep the number of people
being brought to Australia as low as possible”: B. Doherty, “Border Force Tells Nauru Refugees
to Separate from Family if they want to Settle in US,” Guardian, Dec. 5, 2017.

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 674 4 ri g h t s of r e f u g e es ph y s i c a l l y p r e s e nt

the refugee, and that such unity is constantly threatened, and

[n]oting with satisfaction that, according to the official commentary
of the Ad Hoc Committee on Statelessness and Related Problems the
rights granted to a refugee are extended to members of his family,
[r]ecommends Governments to take the necessary measures for the
protection of the refugee’s family, especially with a view to: (1)
[e]nsuring that the unity of the refugee’s family is maintained par-
ticularly in cases where the head of the family has fulfilled the
necessary conditions for admission to a particular country, [and]
(2) [t]he protection of refugees who are minors, in particular
unaccompanied children and girls, with special reference to guard-
ianship and adoption.
Civil and Political Covenant, Art. 17
No one shall be subjected to arbitrary or unlawful interference
with his privacy, family, home or correspondence, nor to
unlawful attacks on his honour and reputation. Everyone has
the right to the protection of the law against such interference
or attacks.
Civil and Political Covenant, Art. 23(1)–(2)
The family is the natural and fundamental group unit of society
and is entitled to protection by society and the State. The right of
men and women of marriageable age to marry and to found a
family shall be recognized.
Civil and Political Covenant, Art. 24(1)
Every child shall have, without any discrimination as to race, colour,
sex, language, religion, national or social origin, property or birth,
the right to such measures of protection as are required by his status
as a minor, on the part of his family, society and the State.
Economic, Social and Cultural Covenant, Art. 10(1)
The States Parties to the present Covenant recognize that . . .
[t]he widest possible protection and assistance should be
accorded to the family, which is the natural and fundamental
group unit of society, particularly for its establishment and
while it is responsible for the care and education of dependent
children . . .
The drafters of the Refugee Convention assumed that the family members of
a refugee would benefit from the protection of the Refugee Convention, even if
not able themselves to show a “well-founded fear of being persecuted.” Under
earlier refugee accords, there had been a consistent pattern of assimilating
family members to the “head of the family” for purposes of defining

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 4.6 f amily r ights 675

entitlement to the benefits of refugee status.2107 That practice was affirmed and
broadened by the Conference of Plenipotentiaries, but only as a commitment
in principle, not as a matter of clearly binding law.
Specifically, the Report of the Ad Hoc Committee observed that “[m]embers
of the immediate family of a refugee should, in general, be considered as
refugees if the head of the family is a refugee as here defined. Also, such
members are to be regarded as refugees if the conditions set forth . . . apply
to them, even if the head of the family is not a refugee.”2108 This view not only
affirmed traditional practice, but moreover eliminated the possibility of apply-
ing the notion of “family unity with a vengeance.” That is, the novation of the
Ad Hoc Committee’s formulation was the ability of a dependent family
member to claim refugee status in his or her own right, whether or not the
“head of the family” was entitled to refugee status.2109 Yet it was subject to no
formal debate or discussion in the Ad Hoc Committee, with the result that no
relevant article was proposed for the Convention itself.
At the Conference of Plenipotentiaries, however, a declaration was inserted into
the Final Act of the Conference. On the initiative of the Holy See, the Conference
agreed without dissent to recommend that governments take “the necessary
measures for the protection of the refugee’s family especially with a view to . . .
[e]nsuring that the unity of the refugee’s family is maintained.”2110 They expressly
affirmed the “essential right of the refugee” to family unity, and endorsed the
understanding of that principle stated by the Ad Hoc Committee.2111
This declaration is a powerful, if non-binding, affirmation of the responsi-
bility of states to avoid actions that might disturb the unity of a refugee’s family.
The language originally proposed2112 was twice strengthened in order to avoid
any impression of diluting the “categorical view of the Ad Hoc Committee that
governments were under an obligation to take such action in respect of the
refugee’s family . . . [I]t would be regrettable if governments were to take the
2107
Even as the approach of refugee law became more individualized with the advent of the
IRO Constitution, respect for family unity continued. “[F]or reasons of equity as well as
administrative convenience, families – not individuals – were considered the basic units
with respect to determining who [was] within the Organization’s mandate. Thus, if the
head of a family was found to be within (or without) the mandate, the members of his
family were also so considered, unless they fell under some constitutional provisions not
applicable to the head of the family”: Grahl-Madsen, Status of Refugees I, at 413.
2108
“Comments of the Committee on the Draft Convention relating to the Status of
Refugees,” Annex II to Ad Hoc Committee, “First Session Report,” at 2.
2109
This aligns with the finding of the Court of Justice of the European Union that there is
nothing to “preclude several family members . . . from each lodging his or her own
application for international protection, nor from one of them lodging his or her own
application also on behalf of a minor family member”: Nigyar Rauf Kaza Ahmedbekova et
al. v. Bulgaria, Dec. No. C-652/16 (CJEU, Oct. 4, 2018), at [55].
2110
“Comments of the Committee on the Draft Convention relating to the Status of
Refugees,” Annex II to Ad Hoc Committee, “First Session Report,” at 2.
2111
See text of Recommendation “B” at note 2106. 2112 UN Doc. A/CONF.2/103.

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 676 4 rights of r efugees physically present

action therein proposed only when they considered that circumstances enabled
them to do so.”2113 Indeed, at least the German representative was of the view
that the responsibility of states was not simply to avoid disrupting family unity,
but also to facilitate the reunion of divided families.2114 Yet it is also undeniable
that – for reasons not explained by the drafters – they viewed the issue of the
responsibility to respect family unity as “naturally not of a contractual
nature.”2115 The High Court of Australia has thus accurately determined that
a domestic system which considers, but does not guarantee, the admission of a
refugee’s spouse and children amounts to “implementation in Australian law
of Recommendation B . . . [that goes] beyond observance of the international
obligations imposed by the Refugees Convention.”2116
Despite its essentially hortatory nature,2117 Recommendation B has inspired
many resolutions of the UNHCR’s Executive Committee. In particular, the
centrality of the family has been said to require that “family unity should be
respected,”2118 “maintained,”2119 and “protected.”2120 There should be a “pri-
oritization of family unity issues at an early stage in all refugee operations,”2121

2113
Statement of Mr. Hoare of the United Kingdom, UN Doc. A/CONF.2/SR.34, July 25,
1951, at 7. The language had earlier been strengthened at the suggestion of Mr. Robinson
of Israel, ibid. at 6.
2114
“He felt it was appropriate that the Conference should emphasize the principle of the unity of
the refugee’s family, a principle of particular importance in a country like Germany where, by
force of political circumstance, many German families had been split asunder. The German
Government was making every effort to facilitate the reunion of such families”: Statement of
Mr. von Trutzschler of the Federal Republic of Germany, ibid. at 5–6.
2115
Statement of Msgr. Comte of the Holy See, ibid. at 4.
2116
Re Minister for Immigration and Multicultural and Indigenous Affairs, ex parte Applicant
S134/2002, (2003) 195 ALR 1 (Aus. HC, Feb. 4, 2003). When this case was reviewed by the
United Nations Human Rights Committee, however, it was determined that “to separate
a spouse and children arriving in a State from a spouse validly resident in a State may give
rise to issues under articles 17 and 23 of the Covenant”: Bakhtiyari v. Australia, HRC
Comm. No. 1069/2002, UN Doc. CCPR/C/79/D/1069/2002, decided Oct. 29, 2003, at
[9.6]. See discussion of relevant Covenant obligations at note 2132 ff.
2117
“The 1951 Convention does little more than recommend measures to ensure family unity and
protection”: Goodwin-Gill and McAdam, Refugee in International Law, at 475. Nonetheless
the European Court of Justice has determined that “it must be found that . . . the possibility of
granting refugee status or subsidiary protection status . . . on account of [the applicant’s]
refugee status would, due to the need to maintain the family unity of those concerned, be
consistent with the rationale of international protection underlying the grant of that status”:
Nigyar Rauf Kaza Ahmedbekova et al. v. Bulgaria, Dec. No. C-652/16 (CJEU, Oct. 4, 2018),
at [73].
2118
UNHCR Executive Committee Conclusion No. 22, “Protection of Asylum-Seekers in
Situations of Large-Scale Influx” (1981), at [II(B)(2)(h)].
2119
UNHCR Executive Committee Conclusion No. 85, “Conclusion on International
Protection” (1998), at [(v)].
2120
UNHCR Executive Committee Conclusion No. 88, “Protection of the Refugee’s Family”
(1999), at [(b)].
2121
Ibid. at [(b)(iv)].

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 4.6 f a m i l y ri g h t s 677

and “all action taken on behalf of refugee children must be guided by the
principle of the best interests of the child as well as by the principle of family
unity.”2122 And of most direct relevance to the question of the admission of
family members, the Executive Committee has

[u]nderline[d] the need for the unity of the refugee’s family to be pro-
tected, inter alia by . . . provisions and/or practice allowing that when the
principal applicant is recognized as a refugee, other members of the family
unit should normally also be recognized as refugees, and by providing each
family member with the possibility of separately submitting any refugee
claims that he or she may have.2123

Beyond the expectation that family members will be assimilated to the

refugee for purposes of protection, “every effort should be made to ensure
the reunification of separated refugee families.”2124 States have been “exhort[ed]”
to pursue family reunification “in a positive and humanitarian spirit, and
without delay,”2125 and even to “consider[] . . . liberal criteria in identifying
those family members who can be admitted, with a view to promoting a
comprehensive reunification of the family.”2126 Most generally, the Executive
Committee has called upon states to consolidate their procedures for family
unity and reunification in a “legal framework to give effect at the national level to
a right to family unity for all refugees, taking into account the human rights of
the refugees and their families.”2127
But because the Refugee Convention does not impose clear duties
with regard to family unity, the locus of attention has sensibly been
international human rights law.2128 The pervasively ratified Convention
on the Rights of the Child, for example, prohibits the separation of
children from their parents “except when competent authorities subject
to judicial review determine, in accordance with the applicable law and
procedures, that such separation is necessary for the best interests of the

2122
UNHCR Executive Committee Conclusion No. 47, “Refugee Children” (1987), at [(d)].
2123
UNHCR Executive Committee Conclusion No. 88, “Protection of the Refugee’s Family”
(1999), at [(b)(iii)]. To similar effect, see UNHCR Executive Committee Conclusion No.
85, “Conclusion on International Protection” (1998), at [(v)].
2124
UNHCR Executive Committee Conclusion No. 24, “Family Reunification” (1981), at [1].
2125
UNHCR Executive Committee Conclusion No. 85, “Conclusion on International
Protection” (1998), at [(w)].
2126
UNHCR Executive Committee Conclusion No. 88, “Protection of the Refugee’s Family”
(1999), at [(b)(ii)].
2127
UNHCR Executive Committee Conclusion No. 85, “Conclusion on International
Protection” (1998), at [(x)].
2128
For a very helpful analysis of both refugee-specific and general human rights obligations,
see F. Nicholson and UNHCR, “The Right to Family Life and Family Unity of Refugees
and Others in need of International Protection and the Family Definition Applied,” Jan.
2018.

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 678 4 ri g ht s of r e f u g e es p hy s i c a l l y p r e s e n t

child.”2129 Pobjoy correctly characterizes this obligation as providing “an

unprecedented level of protection . . . The unambiguous limitation in art. 9
makes plain that no public interest, including immigration control measures,
can be invoked to justify the separation of a parent and child.”2130 The practice
in the United States of sending refugee children to separate detention facilities
while their claims are being evaluated – sometimes hundreds of miles from
their parents2131 – is thus clearly in breach of this duty.
More generally, both Covenants affirm the central place of the family in
international law,2132 and require governments to take affirmative legislative
steps to “protect” the family.2133 It is also clear that refugees may not be denied
protection of their familial rights on grounds of their status as non-citizens:
The Covenant [on Civil and Political Rights] does not recognize the right
of aliens to enter or reside in the territory of a State party. However, in
certain circumstances an alien may enjoy the protection of the Covenant in
relation to entry or residence, for example, when considerations of . . .
respect for family life arise . . . [Non-citizens] may not be subjected to
arbitrary or unlawful interference with their privacy, family, home, or
correspondence [emphasis added].2134

But what relationships are comprised within a “family”? For many refugees,
the challenge is that an asylum country does not recognize their families2135 – for
2129
Rights of the Child Convention, at Art. 9(1). The right has been explicitly determined to
apply without “any discrimination on the basis of the status of the child as being
unaccompanied or separated, or as being a refugee, asylum-seeker or migrant”: UN
Committee on the Rights of the Child, “General Comment No. 6: Treatment of
Unaccompanied and Separated Children Outside their Country of Origin,” UN Doc.
CRC/GC/2005/6, Sept. 1, 2005, at [18].
2130
Pobjoy, Child in Refugee Law, at 70. 2131 See text at note 2101.
2132
Civil and Political Covenant, Art. 23(1); Economic, Social and Cultural Covenant, Art.
10(1). No independent analysis is made here of the latter provision since “[t]he CESCR
has seldom addressed the protection of the family in an immigration context. Reference
may be made instead to the [Human Rights Committee’s] practice under Articles 17 . . .
23 . . . and 13 of the ICCPR, provisions of the [Convention on the Rights of the Child] and
principles of general international law”: Saul, ICESCR Commentary, at 743.
2133
Civil and Political Covenant, Arts. 17(2), 23(1), 23(4), and 24(1); Economic, Social and
Cultural Covenant, Art. 10(1).
2134
UN Human Rights Committee, “General Comment No. 15: The Position of Aliens under
the Covenant” (1986), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [5], [7]. See also UN
Human Rights Committee, “General Comment No. 17: Rights of the Child” (1989), UN
Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [5]: “The Covenant requires that children
should be protected against discrimination on any grounds . . . Reports by States parties
should indicate how legislation and practice ensure that measures of protection are aimed
at removing all discrimination in every field . . . particularly as between children who are
nationals and children who are aliens.”
2135
“It is this absence of a cross-cultural definition of ‘family’ in international law that makes
the right to family life (including family unity and family reunifications) illusory for
migrants, and the right to respect for family life the subject of constant judicial

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 4.6 f amily rights 679

example, the family of a refugee in a polygamous marriage or same-sex relation-

ship, or an extended refugee family seeking protection from a society in which
the nuclear family is the norm.2136 The Human Rights Committee has essentially
conceded the impossibility of arriving at a universal definition of family, and
determined instead only that “the objectives of the Covenant require that . . . this
term be given a broad interpretation to include all those comprising the family as
understood in the society of the State party concerned.”2137 This discretion is
moreover only minimally constrained by other duties under international law.
First, there is a presumptive duty of states arising from Art. 24 of the
Covenant,2138 significantly amplified by the Convention on the Rights of the
Child,2139 to recognize children under the age of eighteen as part of the parents’

intervention”: H. Lambert, “Family Unity in Migration Law: The Evolution of a More

Unified Approach in Europe,” in V. Chetail and C. Bauloz eds., Research Handbook on
International Law and Migration 194 (2014) (Lambert, “Family Unity”), at 201.
2136
“A stricto sensu universality in international law hardly exists. There is always room for
variations, and this is even more the case when it comes to culturally conditioned
institutions, such as family. The differences from one region to another can be so big
that what is normal and, thus, allowed in one society (e.g. a polygamous marriage), may
be strongly disapproved of and legally forbidden somewhere else”: Fourlanos,
Sovereignty, at 92. On the related issue of the need for flexibility in the documentation
of family relationships, see the helpful approach adopted by the Supreme Court of Ireland
in Hassan and Saeed v. Minister for Justice, Equality, and Law Reform, [2013] IESC 8 (Ir.
SC, Feb. 20, 2013) (relating specifically to alternative means of verifying a marriage).
2137
UN Human Rights Committee, “General Comment No. 16: Right to Privacy” (1988), UN
Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [5].
2138
“Article 24 . . . entails the adoption of special measures to protect children . . . The
Covenant requires that children should be protected against discrimination on any
grounds such as . . . national or social origin, property or birth . . . Reports by States
parties should indicate how legislation and practice ensure that measures of protection
are aimed at removing all discrimination in every field . . . particularly as between
children who are nationals and children who are aliens”: UN Human Rights
Committee, “General Comment No. 17: Rights of the Child” (1989), UN Doc. HRI/
GEN/1/Rev.7, May 12, 2004, at [1], [5]. Schabas thus suggests that “[e]very child within a
State party’s sovereign territory has a right as against this State to acquire nationality. This
right, of course, comes into play only in a subsidiary manner, i.e., when the child does not
already have a claim – e.g. due to filiation or to a declaration by his or her parents – to
some other nationality”: Schabas, Nowak’s CCPR Commentary, at 695. Notably, in
considering the deportation of the parent of an Australian-born child, Justice Gaudron
of the High Court of Australia commented that “it is arguable that citizenship carries with
it a common law right on the part of children and their parents to have a child’s best
interest taken into account, at least as a primary consideration, in all discretionary
decisions by governments, and government agencies which directly affect that child’s
individual welfare, particularly decisions which affect children as dramatically and as
fundamentally as those involved in this case”: Minister for Immigration and Ethnic Affairs
v. Teoh, (1995) 183 CLR 273 (Aus. HC, Apr. 7, 1995), per Gaudron J. at 304.
2139
“States Parties shall respect the right of the child who is separated from one or both
parents to maintain personal relations and direct contact with both parents on a regular
basis, except if it is contrary to the child’s best interests . . . [A]pplications by a child or his

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 680 4 righ ts of r efug ee s ph y sica lly p r es en t

family unit.2140 Second, the Committee on the Rights of the Child has adopted
the view that the presumptive duty to avoid the separation of children from
their parents “must be interpreted in a broad sense to include biological,
adoptive or foster parents or, where applicable, the members of the extended
family or community as provided for by local custom,”2141 and that the duty
extends “to any person holding custody rights, legal or customary, primary
caregivers, foster parents and persons with whom the child has a strong
personal relationship.”2142 And third, it may also be argued that the agreement
in principle of state parties to the International Covenant on Economic, Social
and Cultural Rights that there is a special responsibility to meet the needs of
aged family members2143 should be read to compel the inclusion of such
persons in the definition of the family unit.
Beyond these limited constraints, however, the asylum state has broad
autonomy to interpret who qualifies as a member of a “family as understood
in the society of the State party concerned”2144 and is thus entitled to “live
together.” The duty under international human rights law is simply to apply

or her parents to enter or leave a State Party for the purpose of family reunification shall
be dealt with by States Parties in a positive, humane and expeditious manner. States
Parties shall further ensure that the submission of such a request shall entail no adverse
consequences for the applicants and for the members of their family”: Rights of the Child
Convention, at Arts. 9(3) and 10(1).
2140
“[T]he Covenant does not indicate the age at which [a child] attains his majority. This is
to be determined by each State party in the light of the relevant social and cultural
conditions. In this respect, States should indicate in their reports the age at which the
child attains his majority in civil matters and assumes criminal responsibility. States
should also indicate the age at which a child is legally entitled to work and the age at which
he is treated as an adult under labour law . . . However, the Committee notes that the age
for the above purposes should not be set unreasonably low and that in any case a State
party cannot absolve itself from its obligations under the Covenant regarding persons
under the age of 18, notwithstanding that they have reached the age of majority under
domestic law”: UN Human Rights Committee, “General Comment No. 17: Rights of the
Child” (1989), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [4].
2141
UN Committee on the Rights of the Child, “General Comment No. 14: The Right of the
Child to have His or Her Best Interests taken as a Primary Consideration,” UN Doc. CRC/
C/GC/14, May 29, 2013, at [59]. See e.g. E v. Netherlands, Dec. No. C-635/17 (CJEU, Mar.
13, 2019).
2142
UN Committee on the Rights of the Child, “General Comment No. 14: The Right of the
Child to have His or Her Best Interests taken as a Primary Consideration,” UN Doc. CRC/
C/GC/14, May 29, 2013, at [60].
2143
“State parties should make all the necessary efforts to support, protect and strengthen the
family and help it, in accordance with each society’s system of cultural values, to respond
to the needs of its dependent ageing members”: UN Committee on Economic, Social and
Cultural Rights, “General Comment No. 6: The Economic, Social and Cultural Rights of
Older Persons” (1995), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [31].
2144
UN Human Rights Committee, “General Comment No. 16: Right to Privacy” (1988), UN
Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [5].

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 4. 6 f ami l y r igh ts 681

the same definition of “family” to all persons without discrimination,2145

including when making decisions regarding the reunification of refugee fam-
ilies.2146 This duty to treat all families the same is thus infringed by the
provision of European Union law authorizing the differential treatment of
families formed before arrival to seek asylum and those formed after protection
has been claimed.2147 On the other hand, international human rights law
cannot be relied upon to contest the EU’s rule that family reunification need
not be granted to a second or subsequent spouse in a polygamous marriage2148
since such marriages are not allowed in the Union.2149 That said, the Irish
Supreme Court showed remarkable sensitivity in adopting the view that “in the
area of immigration, to refuse admission to a spouse simply because the
marriage was potentially polygamous would damage the policy of family
reunification with the aim of successful integration into the State.”2150
Responding to the petition of a Lebanese refugee who had validly married
two women in his country of origin – both marriages subsisting, and both
having produced children – the Court found that the one wife with whom the
refugee intended to live was entitled to entry;2151 that all of the refugee’s
children, born of either wife, were similarly to be admitted;2152 and even
recommended that the second wife be considered for discretionary entry,
though not as a spouse.2153

2145
This follows from the duty to ensure the equal protection of the law without discrimin-
ation to all persons under a state’s jurisdiction pursuant to Art. 26 of the Covenant. See
generally Chapter 1.5.5.
2146
“[T]he concept of the family may differ in some respects from State to State, and even
from region to region within a State, and it is therefore not possible to give the concept a
standard definition. However . . . when a group of persons is regarded as a family under
the legislation and practice of a State, it must be given the protection”: UN Human Rights
Committee, “General Comment No. 19: The Family” (1990), UN Doc. HRI/GEN/1/
Rev.7, May 12, 2004, at [2]. Comparable deference to national understandings is evident
in, for example, UN Committee on the Elimination of Discrimination Against Women,
“General Recommendation No. 21: Equality in Marriage and Family Relations” (1994),
UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [13]: “The form and concept of the family
can vary from State to State, and even between regions within a State. Whatever form it
takes, and whatever the legal system, religion, or custom within the country, the treat-
ment of women . . . must accord with the principles of equality and justice for all people.”
2147
See text at note 2085. See also UNHCR and Odysseus Network, “Discussion Paper
Prepared for the Expert Roundtable on the Right to Family Life and Family Unity in
the Context of Family Reunification,” Dec. 4, 2017, at [42].
2148
See text at note 2084.
2149
Indeed, polygamous marriages have been determined to breach the duty of equality
under Art. 3 of the Civil and Political Covenant: UN Human Rights Committee, “General
Comment No. 28: Article 3 (The Equality of Rights between Men and Women)” (2000),
UN Doc. CCPR/C/21/Rev.1/Add.10, at [24].
2150
HAH v. SAA, [2017] IESC 40 (Ir. SC, June 15, 2017), at [107]. 2151 Ibid. at [105].
2152
Ibid. at [118]. 2153 Ibid. at [118].

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 682 4 ri g h t s of r e f u g e es ph y s i c a l l y p r e s e nt

UNHCR has argued for a broader approach to family unity, urging states to
give “positive consideration to the inclusion of family members – regardless of
age, level of education, marital status or legal status – whose economic and
social viability remains dependent on the nuclear family.”2154 This approach
has elicited some support in the Human Rights Committee2155 and in national
and regional courts. The Supreme Court of Ireland, for example, called for the
admission of a Somali refugee’s sisters and brothers as part of her family: “[i]n
light of the fact that special and enhanced application status is given to
dependent family members, the weight to be attached to the general entitle-
ment of the State to exercise immigration control must be significantly less in a
case such as this than in an ordinary case.”2156 And in an advisory opinion, the
Inter-American Court of Human Rights advocated an even more inclusive
understanding of the scope of family protection at international law:

[T]here is no single model for a family. Accordingly, the definition of

family should not be restricted to the traditional notion of a couple and
their children, because other relatives may also be entitled to the right to
family life, such as uncles and aunts, cousins, and grandparents, to name
but a few of the possible members of the extended family, provided they
have close personal ties. In addition, in many families the person or
persons in charge of the legal or habitual maintenance, care and develop-
ment of a child are not the biological parents. Furthermore, in the migra-
tory context, “family ties” may have been established between individuals
who are not necessarily family members in the legal sense, especially when,
as regards children, they have not been accompanied by their parents in
these processes.2157

2154
UNHCR, Resettlement Handbook (2011), at 180.
2155
For example, in its Concluding Observations on Austria’s periodic report, the Human
Rights Committee noted that it was “concerned that the [Austrian legislation] foresees
family reunification only for nuclear family members . . . and that the exclusion of
dependent adult children, minor orphan siblings and other persons with whom persons
granted international protection enjoyed family life in the country of origin can result in
hardship situations (arts. 13, 17, and 23(1))”: “Concluding Observations of the Human
Rights Committee: Austria,” UN Doc. CCPR/C/AUT/CO/4, Oct. 30, 2007, at [19]. The
Committee has also insisted upon a context-specific approach to the definition of
acceptable evidence of a family relationship: Nimo Mohamed Aden and Liban
Muhammed Hassan v. Denmark, HRC Comm. No. 2351/2015, UN Doc. CCPR/C/126/
D/2531/2015, decided July 25, 2019, at [10.6].
2156
AMS v. Minister for Justice and Equality, [2014] IESC 65 (Ir. SC, Nov. 20, 2014), at [7.15].
2157
Rights and Guarantees of Children in the Context of Migration and/or in Need of
International Protection (Advisory Opinion OC-21/14) (IACtHR, Aug. 19, 2014), at
[22]. The same court has also determined that same-sex couples are included within
the concept of a protected family: Riffo v. Chile (Merits Judgment), Ser. C No. 239 (Feb. 24,
2012). But see e.g. Secretary of State for the Home Department v. Aga, [2005] EWCA Civ
1574 (Eng. CA, Nov. 29, 2005), in which the Court gave short shrift to the argument of an
individual who had arrived from Kosovo as a child refugee that he should not be subject

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 4.6 f amily rights 683

Against the backdrop of this understanding of the scope of family life protected
under the Covenant, the two key questions are, first, the nature of the duty to
states to avoid disturbing family relationships and, second, whether and to
what extent state parties must affirmatively enable the reunification of separ-
ated families.

4.6.1 Family Unity

The most unambiguously framed protection of family unity is Art. 17 of the
Civil and Political Covenant, which proscribes “arbitrary or unlawful interfer-
ence with . . . family” and grants “[e]veryone . . . the right to the protection of
the law against such interference or attacks.” As the Human Rights Committee
has explained, the first component of the duty is that “[i]nterference by States
can only take place on the basis of law,”2158 meaning that any interference with
an individual’s family unity not carried out on the basis of legal authority is a
violation of the Covenant. As such, both the Serbian break-up of refugee
families from Bosnia and Croatia by informal conscription “raids” in which
male family members were dragged away without any semblance of due
process2159 and Tanzania’s en masse expulsion without any hearing of thou-
sands of long-term refugees from Rwanda and Burundi, separating many of
them from spouses and children,2160 amounted to violations of this aspect of
the duty under Art. 17.
Second, even if ostensibly conducted with legal authority, an interference
with family is only lawful if it complies “with the provisions, aims and object-
ives of the Covenant.”2161 Kenya’s practice of backing recruiters to lure young
Somali refugees – including many underage boys – to return to fight in their
home country2162 was thus a serious breach of Art. 17, since it knowingly
exposed the young recruits to loss of life.2163 When Kenyan authorities pre-
vented distraught parents from leaving refugee camps to search for their sons,
they again acted unlawfully – thereby exacerbating the intensity of their
interference with family unity.
Third, even if in principle authorized by and in accordance with law, actions
that interfere with family unity are still prohibited by Art. 17 if they are
“arbitrary.” Most obviously, an interference is arbitrary if it is “taken at the

to the usual removal due to cessation of refugee status on the basis of his deep bond with
his brother and sister-in-law who cared for him during several years in exile.
2158
“The term ‘unlawful’ means that no interference can take place except in cases envisaged
by the law”: UN Human Rights Committee, “General Comment No. 16: Right to
Privacy,” UN Doc. HRI/GEN/1/Rev.7, Apr. 8, 1988, at [3].
2159
See text at note 2096. 2160 See text at note 2099.
2161
UN Human Rights Committee, “General Comment No. 16: Right to Privacy,” UN Doc.
HRI/GEN/1/Rev.7, Apr. 8, 1988, at [3].
2162
See text at note 2097. 2163 See generally Chapter 4.3.1.

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 684 4 righ t s of r e f ugee s ph y sica lly pr es en t

will and pleasure of some person who could not be called upon to show just
cause for it.”2164 As the drafters of the Covenant insisted, “‘arbitrary’ clearly
went beyond ‘unlawful’ and contained an element of ‘capriciousness.’”2165 The
Human Rights Committee has, for example, determined that politically
motivated family separation – specifically, to avoid interstate tension that
might threaten bilateral aid – was arbitrary and thus in violation of Art. 17.2166
Under the jurisprudence of the Human Rights Committee, the main ques-
tion to be addressed in the assessment of arbitrariness is whether the interfer-
ence is “reasonable in the particular circumstances.”2167 The notion that an
“unreasonable” interference with family is “arbitrary” has been relied upon, for
example, to prevent the deportation of the family members of a refugee whose
claim had not yet been finally determined.2168 In the case, the husband had
initially been recognized as a Convention refugee, though the basis for that
decision was under review. The Human Rights Committee determined that
removal of the wife and children in such circumstances would amount to an
arbitrary interference with family:

Taking into account the specific circumstances of the case, namely the
number and age of the children, including a newborn, the traumatic
experiences Mrs. Bakhtiyari and her children would face if returned to
Pakistan and the absence of arguments by the State party to justify removal
in these circumstances, the Committee takes the view that removing Mrs.
Bakhtiyari and her children without awaiting the final determination of
Mr. Bakhtiyari’s proceedings would constitute arbitrary interference in the
family of the authors, in violation of articles 17, paragraph 1, and 23,
paragraph 1, of the Covenant.2169

2164
L. Rehof, “Article 12,” in A. Eide et al. eds., The Universal Declaration of Human Rights: A
Commentary 187, at 190, quoting from the British representative, Mrs. Corbet.
2165
Schabas, Nowak’s CCPR Commentary, at 464.
2166
Patricia Angela Gonzalez v. Guyana, HRC Comm. No. 1246/2004, UN Doc. CCPR/C/98/
D/1246/2004, decided May 21, 2010, at [14.4]. This approach accords with the view that
arbitrariness includes consideration of “inappropriateness”: Zeyad Khalaf Hamadie Al-
Gertani v. Bosnia and Herzegovina, HRC Comm. No. 1955/2010, UN Doc. CCPR/C/109/
D/1955/2010, decided Nov. 1, 2013, at [10.3].
2167
UN Human Rights Committee, “General Comment No. 16: Right to Privacy,” UN Doc.
HRI/GEN/1/Rev.7, Apr. 8, 1988, at [4]. “Reasonableness” analysis can of course be risky,
importing as it does significant space for subjective assessment: see e.g. ABM v. Minister
for Justice and Equality, [2016] IEHC 449 (Ir. HC, July 29, 2016) in which the notion of
“voluntary assumption of risk” was invoked to question the logic of a claim to family
unity advanced by two individuals who became a couple at a time when they were aware
that neither had durable long-term status in Ireland.
2168
Bakhtiyari v. Australia, HRC Comm. No. 1069/2002, UN Doc. CCPR/C/79/D/1069/2002,
decided Oct. 29, 2003.
2169
Ibid. at [9.6].

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 4.6 f amily rights 685

Nor even may states simply assert their right to enforce general immigration
rules as a justification for separating family members. At least where there are
“extraordinary circumstances” or “exceptional factors,”2170 ordinary immigra-
tion rules must yield to considerations of family unity:
[T]here is significant scope for States parties to enforce their immigration
policy and to require departure of unlawful persons. That discretion is,
however, not unlimited and may come to be exercised arbitrarily in certain
circumstances. In the present case, both [parents] have been in Australia
[overstaying visitor’s/student visas] for over fourteen years. The authors’
[Australian citizen] son has grown in Australia from his birth 13 years
ago, attending Australian schools as an ordinary child would and devel-
oping the social relationships inherent in that. In view of this duration of
time, it is incumbent on the State party to demonstrate additional factors
justifying the removal of both parents that go beyond the simple enforce-
ment of its immigration law in order to avoid a characterization of
arbitrariness.2171

As these decisions suggest, the fact-specific nature of the inquiry into

unreasonableness means that Art. 17 will be most readily breached when a
state’s interference with family unity follows from the rigid application of law
or policy that ignores particularized needs and circumstances – for example,
when seven resettlement states refused to even consider allowing the Nepalese
spouses of Bhutanese refugees to accompany them to their new homes
abroad.2172 Unacceptable rigidity is similarly evident in the decision by
Australia and the United States that any refugee on Nauru selected for resettle-
ment to the United States must abandon a spouse evacuated to Australia for
medical reasons.2173 The refusal of Zambian authorities to take any account of
family relationships in the assignment of refugees at Ukwimi to particular land
parcels, insisting instead on an uncompromising application of a system of
allocating plots based on the date of arrival, is similarly demonstrative of the
refusal to take account of particular circumstances that taints even a system
authorized by law as “arbitrary.”2174 Belgium’s automatic withdrawal of
2170
Mohammed Sahid v. New Zealand, HRC Comm. No. 893/1999, UN Doc. CCPR/C/77/D/
893/1999, decided Apr. 11, 2003, at [8.2].
2171
Hendrik Winata v. Australia, HRC Comm. No. 930/2000, UN Doc. CCPR/C/72/D/930/
2000, decided July 26, 2001, at [7.3]. The Committee has, however, insisted that the mere
fact that minor children are citizens of the state seeking to deport is not sufficient in and
of itself to render the removal of the parents arbitrary: Rajan and Rajan v. New Zealand,
HRC Comm. No. 820/1998, UN Doc. CCPR/C/78/DR/820/1998, decided Aug. 6, 2003, at
[7.3]. More generally, absent “extraordinary circumstances” the usual immigration rules
are likely to prevail (“It is certainly unobjectionable under the Covenant that a State party
may require, under its laws, the departure of persons who remain in its territory beyond
limited duration periods”: Winata v. Australia, HRC Comm. No. 930/2000, UN Doc.
CCPR/C/72/D/930/2000, decided July 26, 2001, at [7.3]).
2172
See text at note 2105. 2173 See text at note 2106. 2174 See text at note 2104.

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 686 4 righ t s of r ef ug ee s ph y sica lly p r es en t

residence rights from a non-cohabiting refugee spouse – in contrast to practice

in most other EU states that recognizes the possibility of extenuating circum-
stances such as health or employment issues that might make cohabitation
unworkable2175 – also shows clearly the risk of arbitrariness that can follow
from the failure to take account of particular circumstances. Much the same
risk of arbitrary interference with family unity arises from the European
Union’s authorization simply to ignore family relationships that arise post-
arrival.2176
The Human Rights Committee’s understanding of an “arbitrary” interfer-
ence with privacy rights has at times included2177 not just an action that is
capricious or which evinces a rigidity that fails to take account of particular
needs and circumstances, but also an interference adjudged not to be
proportionate:

The Committee interprets the requirement of reasonableness to imply that

any interference with privacy must be proportional to the end sought and
be necessary in the circumstances of any given case.2178

In the case of a Somali national brought to Canada as the child of a refugee

mother and who was convicted in Canada of several assaults and robberies, for
example, the Committee found “that the interference with the author’s family
life, which would lead to irreparably severing his ties with his mother and
2175
See text at note 2102.
2176
See note 2085. Indeed, the European Commission itself has insisted on the need for
“more leniency . . . in recognition of the particular plight of refugees and the difficulties
they often face in applying for family reunification”: European Commission,
“Communication from the Commission to the European Parliament and the Council
on guidance for application of Directive 2003/86/EC on the right to family reunification,”
Doc. COM(2014)210 final, Apr. 3, 2014, at 21.
2177
In its relevant general comment, however, the Human Rights Committee makes no
mention of proportionality. “The expression ‘arbitrary interference’ is also relevant to
the protection of the right provided for in article 17. In the Committee’s view the
expression ‘arbitrary interference’ can also extend to interference provided for under
the law. The introduction of the concept of arbitrariness is intended to guarantee that
even interference provided for by law should be in accordance with the provisions, aims
and objectives of the Covenant and should be, in any event, reasonable in the particular
circumstances”: UN Human Rights Committee, “General Comment No. 16: Right to
Privacy,” UN Doc. HRI/GEN/1/Rev.7, Apr. 8, 1988, at [4].
2178
Toonen v. Australia, HRC Comm. No. 488/1992, UN Doc. CCPR/C/50/D/488/1992,
decided Mar. 31, 1994, at [8.3]. “[R]egardless of its lawfulness, arbitrary interference
contains elements of injustice, unpredictability and unreasonableness . . . In evaluating
whether interference . . . by a State enforcement organ represents a violation of Art. 17, it
must especially be reviewed whether, in addition to conformity with national law, the
specific act of enforcement had a purpose that seems legitimate on the basis of the
Covenant in its entirety, whether it was predictable in the sense of rule of law and, in
particular, whether it was reasonable (proportional) in relation to the purpose to be
achieved [emphasis added]”: Schabas, Nowak’s CCPR Commentary, at 465.

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 4.6 f amily rights 687

sisters in Canada[,] would be disproportionate to the legitimate aim of pre-

venting the commission of future crimes.”2179

4.6.2 Family Reunification

As important as Art. 17 is as a means of contesting actions which disrupt family
unity, the superficially less robust protection of Art. 23 of the Civil and Political
Covenant may actually be of greater value to refugees2180 seeking to compel
states to take affirmative steps to unify their families.2181 The key clause is in
section 2, which requires states to recognize “[t]he right of men and women of
marriageable age to marry and to found a family [emphasis added].” In its
General Comment on Art. 23, the Human Rights Committee determined that

[t]he right to found a family implies, in principle, the possibility to

procreate and live together . . . [T]he possibility to live together implies
the adoption of appropriate measures, both at the internal level and as the
case may be, in cooperation with other States, to ensure the unity or
2179
Jama Warsame v. Canada, HRC Comm. No. 1959/2010, UN Doc. CCPR/C/102/D/1959/
2010, decided July 21, 2011, at [8.10]. Much the same approach was taken in Dauphin v.
Canada, HRC Comm. No. 1792/2008, UN Doc. CCPR/C/96/D/ 1792/2008, decided July
28, 2009, at [8.4]. As a general matter, it has recently been suggested that “[s]eparating a
family by deporting or removing a family member from a State party’s territory, or
otherwise refusing to allow a family member to enter or remain in the territory, may
amount to arbitrary or unlawful interference with family life. The Committees are of the
view that the rupture of the family unit by the expulsion of one or both parents based on a
breach of immigration laws related to entry or stay is disproportionate [emphasis added]”:
UN Committee on the Protection of the Rights of All Migrant Workers and Members of
Their Families and UN Committee on the Rights of the Child, “Joint General Comment
No. 4 on State Obligations regarding the Human Rights of Children in the Context of
International Migration in Countries of Origin, Transit, Destination and Return,” UN
Doc. CMW/C/GC/4 and CRC/C/GC/23, Nov. 16, 2017, at [28]–[29].
2180
Beyond Art. 23 of the Civil and Political Covenant, applications for family reunification
that involve children must be treated “in a positive, humane and expeditious manner”:
Rights of the Child Convention, at Art. 10. In the European Union, the right of an
unaccompanied child refugee to sponsor the admission of his or her family applies to an
individual who was under age eighteen as of the date on which the asylum application was
lodged: A and S v. Staatssecretaris van Veiligheid en Justitie, Dec. No. C-550/16 (CJEU,
Apr. 12, 2018), at [64].
2181
See Schabas, Nowak’s CCPR Commentary, at 634, 639: “As an institutional guarantee, Art. 23
differs from protection against interference with private and family life guaranteed by Art. 17.
The claim possessed by the institution ‘family’ under Art. 23 to protection by society and the
State is stronger than that in Art. 12 of the [European Convention on Human Rights], which
merely sets forth the right to marry and found a family . . . [I]nstitutional guarantees always
imply certain privileges on the part of the individuals affected by them. Since life together is
an essential criterion for the existence of a family, members of a family are entitled to a
stronger right to live together than other persons.” See also S. Joseph and M. Castan, The
International Covenant on Civil and Political Rights: Cases, Materials, and Commentary
(2013) (Joseph and Castan, ICCPR), at 667.

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 688 4 ri g h t s of r e f u g e es ph y s i c a l l y p r e s e nt

reunification of families, particularly when their members are separated for

political, economic or similar reasons [emphasis added].2182

Clearly, the sorts of forces which cause refugee families to become separated are
paradigmatic examples of “political . . . or similar reasons.”2183 Refugee status
manifestly precludes the family exercising its right to live together in the country
of origin;2184 indeed, the Committee has determined that a refugee “cannot reason-
ably be expected to return to his country of origin”2185 in order to enjoy his or her
right to family unity.2186 In practice, this usually means that measures to ensure the
unity or reunification of refugee families must be taken by the state of asylum.2187
Drawing on this understanding that Art. 23(2) establishes the right of
families to “live together,” the Human Rights Committee has determined
that states are under a duty to take measures to “ensure the unity or reunifica-
tion of [refugee] families.”2188 The question of when such affirmative efforts
are sufficient will likely be measured in relation to the usual (and fungible)
“reasonableness” standard,2189 meaning that a policy such as that of the
2182
UN Human Rights Committee, “General Comment No. 19: The Family,” UN Doc. HRI/
GEN/1/Rev.7, July 27, 1990, at [5].
2183
Indeed, “the risk of persecution may be such that the need for protection for family
members is particularly stark”: ZN (Afghanistan) v. Entry Clearance Officer, [2010] UKSC
21 (UK SC, May 12, 2010), at [35].
2184
The European Court of Human Rights has recognized the inability of refugee families to
live together in the country of origin in e.g. Tuquabo Takle v. Netherlands, Dec. No.
60665/00 (ECtHR, Dec. 1, 2005), at [47]–[50].
2185
Farag El Dernawi v. Libya, HRC Comm. No. 1143/2002, UN Doc. CCPR/C/98/D/1143/
2002, decided July 20, 2007, at [6.3].
2186
The European Court of Human Rights has determined that family reunification proced-
ures must take account of the disruptions caused by the events that give rise to refugee
status: Tanda-Muzinga v. France, Dec. No. 2260/10 (ECtHR, July 10, 2014), at [73];
Mugenzi v. France, Dec. No. 22251/07 (ECtHR, Jan. 10, 2012), at [52].
2187
See e.g. Mohamed El-Hichou v. Denmark, HRC Comm. No. 1554/2007, UN Doc. CCPR/
C/99/D/1554/2007, decided July 22, 2010, at [7.4]–[8] (finding that Denmark, the country
of residence for the father of a Moroccan boy with no remaining family in that country,
had a duty under Art. 23 of the Covenant to admit the boy under the “very special
circumstances” of the case); see also Patricia Angela Gonzalez v. Guyana, HRC Comm.
No. 1246/2004, UN Doc. CCPR/C/98/D/1246/2004, decided May 21, 2010, at [14.4].
Indeed, the UK Supreme Court has opined that in the case of refugee and non-refugee
relationships, if “there were nowhere else for them to go, it would be necessary to weigh
up the ‘precariousness’ aspect against the extent to which the couple would, in fact, be
able to support themselves”: R (MM Lebanon) v. Secretary of State for the Home
Department, [2017] UKSC 10 (UK SC, Feb. 22, 2017), at [105].
2188
UN Human Rights Committee, “General Comment No. 19: The Family,” UN Doc. HRI/
GEN/1/Rev.7, May 12, 2004, at [5]. This indirect approach to establishing a right to family
is necessary because “none of [the rules of international human rights law] constitute a
right to family reunification as such”: Lambert, “Family Unity,” at 196.
2189
“Problems with the positive obligation approach arise in establishing its scope. The point
at which a State is obligated to act affirmatively to protect the right to family unity is
unclear. Moreover, the interpretations of this notion also have a potential for ambiguity

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 4.6 f a m i l y ri g h t s 689

European Union that entitles refugees to sponsor the admission of their family
members within three months of status recognition without regard to financial
circumstances2190 is likely to be found acceptable.2191 Even the EU’s policy of
denying family reunification where public security or public health concerns
are raised is probably justifiable, so long as those notions are interpreted in line
with international standards.2192 The potential breadth of the “public policy”
exception, on the other hand, raises the specter of measures that border on
infringement of the prohibition of arbitrary conduct, and which therefore
could not be considered reasonable limitations.2193
One type of policy that likely infringes the duty to enable family reunifica-
tion is the imposition of burdensome fees or other administrative require-
ments.2194 The Court of Justice of the European Union has insisted, for

. . . Such standards leave much in the hands of individual judicial opinion”:

C. Anderfuhren-Wayne, “Family Unity in Immigration and Refugee Matters: United
States and European Approaches,” (1996) 8(3) International Journal of Refugee Law 347,
at 380.
2190
See text at note 2088.
2191
In a cognate case on family reunification rules (but not involving refugees) the Court of
Justice determined that “a waiting period cannot be imposed without taking into account,
in specific cases, all the relevant factors,” including for example the best interests of
children: European Parliament v. Council of the European Union, Dec. No C-540/03
(CJEU, June 27, 2006), at [99].
2192
See text at note 2090. Compare Civil and Political Covenant, at Arts. 12(3), 19(3), 22(2).
But as the Human Rights Committee has insisted, “[i]n the absence of clear explanation
from the State party as to why the author constitutes a threat to the security of the country
or why this information cannot be transmitted . . . the State party has failed to show that
the interference with family life is justified by serious and objective reasons”: Zeyad
Khalaf Hamadie Al-Gertani v. Bosnia and Herzegovina, HRC Comm. No. 1955/2010, UN
Doc. CCPR/C/109/D/1955/2010, decided Nov. 1, 2013, at [10.9]. See also Mansour
Leghaei v. Australia, HRC Comm. No. 1937/2010, UN Doc. CCPR/C/113/D/1937/
2010, decided Mar. 26, 2015, at [10.5], insisting on respect for “due process of law” in
such cases.
2193
With respect to the potential breadth of the traditional notion of ordre public, this being
the French-language equivalent of “public policy,” see Chapter 1.4.4 at note 133; Chapter
5.1 at note 225; Chapter 5.2 at note 396; and Chapter 6.6 at note 1091.
2194
See e.g. GR v. Netherlands, Dec. No. 22251/07 (ECtHR, Jan. 10, 2012), at [55]. The
European Court of Justice has found that unless the applicant fails to cooperate in
documenting family status, “the lack of official documentary evidence of the family
relationship and the potential implausibility of the explanations provided in this regard
must be regarded as mere elements to be taken into account in the case-by-case assess-
ment of all of the elements of the specific case and do not free the competent national
authorities from the obligation . . . to take other evidence into account . . . [The fact that]
documentary evidence [is] . . . lacking cannot be the sole reason for rejecting an applica-
tion”: E v. Netherlands, Dec. No. C-635/17 (CJEU, Mar. 13, 2019), at [68]–[69]. Indeed,
the duty of administrative assistance under Art. 25 of the Refugee Convention may
require state parties actively to assist refugees to overcome documentary and other
hurdles in the family reunification context. See UNHCR and Odysseus Network,
“Discussion Paper Prepared for the Expert Roundtable on the Right to Family Life and

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 690 4 r ights of r efugees p hysically present

example, that “the level at which those costs are determined must not aim, nor
have the effect of, making family reunification impossible or excessively diffi-
cult.”2195 This understanding raises concerns about the practice of the United
Kingdom to condition some refugee family reunification on demonstrated
financial capacity, particularly since British rules direct that the earning cap-
acity of sponsored family members or support available from third parties be
excluded from that calculus.2196 Indeed, the latter practice recently came under
criticism from the UK Supreme Court:
[A] broader approach may be required . . . [Immigration officers] are
entitled to take account of the Secretary of State’s policy objectives, but
in judging whether they are met, they are not precluded from taking
account of other reliable sources of earnings or finance . . . [T]here are
aspects of the instructions to entry clearance officers which require
revision.2197

Australia’s rules – requiring the payment of family sponsorship fees that can
amount to tens of thousands of dollars in addition to the posting of bonds to
ensure that family members’ needs are met2198 – even more clearly raise the
real specter of being unreasonable impediments to the duty to enable refugee
families to “live together.”
Most susceptible of all to successful challenge are limitations imposed on the
right to family reunification based strictly on an individual’s status.2199 Both
New Zealand’s policy of imposing a three-year delay on family reunification
for refugees who come as part of a “mass arrival”2200 and the Canadian refusal
to allow family reunification for five years to refugees who are deemed to be
Family Unity in the Context of Family Reunification,” Dec. 4, 2017, at [74]–[76]. On the
nature of the duty of administrative assistance, see generally Chapter 4.10.
2195
Minister van Buitenlandse Zaken v. K and A, Dec. No. C-153/14 (CJEU, July 9, 2015), at
[64], [71].
2196
See note 2086.
2197
R (MM Lebanon) v. Secretary of State for the Home Department, [2017] UKSC 10 (UK SC,
Feb. 22, 2017), at [100]–[101]. The Supreme Court had earlier taken a comparable
position in relation to then-prevailing rules, asking “[a]re rich and devoted uncles (or,
indeed, large supportive immigrant communities such as often assist those seeking entry)
really to be ignored in this way?”: Mahad v. Entry Clearance Officer, [2009] UKSC 16 (UK
SC, Dec. 16, 2009), at [19].
2198
See note 2087.
2199
By way of analogy, the European Court of Justice has determined that “the imposition by
such rules of a residence condition on a beneficiary of subsidiary protection status in
receipt of welfare benefits is precluded . . . only where beneficiaries of subsidiary protec-
tion status are in a situation that is, so far as concerns the objective pursued by those rules,
objectively comparable with the situation of third-country nationals legally resident in
Germany on grounds that are not humanitarian or political or based on international
law”: Kreis Warendorf v. Ibrahim Alo and Amira Osso v. Region Hanover, Dec. Nos. C-
443/14 and C-444/13 (CJEU, Mar. 1, 2016), at [61].
2200
See text at note 2076.

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 4.6 f amily r ights 691

part of a group that has arrived irregularly2201 are status-based exclusions that
likely fall afoul of Art. 23(2). Of particular concern, many persons who are in
fact Convention refugees are nonetheless assigned “subsidiary protection” or
other status by asylum countries, and denied full family reunification rights on
that basis.2202 For example, Cyprus and Greece deny family reunification to all
beneficiaries of subsidiary protection;2203 while Austria, Denmark, and
Switzerland delay family reunification for those granted only “subsidiary
protection” status.2204 The fairness of this status-based differentiation is par-
ticularly suspect where, as in the case of Germany, it was implemented
contemporaneously with a sharp rise in the recognition of subsidiary pro-
tected, rather than full Convention refugee, status.2205
It might be thought that it would be more reasonable to deny or delay
family reunification to refugees found entitled only to “temporary pro-
tected” status. After all, if the stay in the asylum country is short, the
imperative to reunite families might be thought less strong. Yet despite its
obvious connotation of limited duration, the “temporarily protected” label
has in practice not been routinely indicative of the actual duration of the
refugees’ stay in the asylum state.2206 To the contrary, many “temporarily
protected” refugees have been compelled to remain in protection abroad
for very long periods of time, even as some persons recognized as full
Convention refugees have been able to repatriate in a short space of
time.2207 A particularly clear example of this concern was the American
delay of more than twenty years to process the claims of “temporarily
protected” Guatemalan and Salvadoran refugees, during which time they
2201
See text at note 2075.
2202
The European Commission has, however, insisted that “the [family reunification] direct-
ive [2003/86/EC] should not be interpreted as obliging [member states] to deny benefi-
ciaries of temporary or subsidiary protection the right to family reunification”: European
Commission, “Communication from the Commission to the European Parliament and
the Council on guidance for application of Directive 2003/86/EC on the right to family
reunification,” Doc. COM(2014)210 final, Apr. 3, 2014, at 24.
2203
See text at note 2080. 2204 See text at note 2079.
2205
See text at note 2078. In a case decided on Nov. 14, 2018, the Swedish Migration Court of
Appeal determined that Sweden’s three-year delay before beneficiaries of subsidiary
protection could seek family reunification was a disproportionate response to state
concerns to reduce asylum numbers and was inconsistent with respect for family unity
and the principle of the best interests of the child: M. Nyman, “Sweden – Migration Court
of Appeal Rules in a Case of Family Reunification of Subsidiary Protection Beneficiary,”
ELENA Weekly Legal Update, Nov. 17, 2018.
2206
“As the European Commission has noted, when subsidiary protection was introduced in
the EU, ‘it was assumed that this status was of a temporary nature,’ but ‘practical
experience . . . has shown that this initial assumption was not accurate’”: UNHCR and
Odysseus Network, “Discussion Paper Prepared for the Expert Roundtable on the Right
to Family Life and Family Unity in the Context of Family Reunification,” Dec. 4, 2017,
at [95].
2207
See J. Hathaway, “What’s in a Label?,” (2003) 5 European Journal of Migration and Law 1.

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 692 4 rights of r efugees physically present

were denied the right of family reunification.2208 Indeed, even the label
“asylum-seeker” employed by some countries as the basis for delaying
refugee rights, including to family reunification, is similarly problematic.
Because of the time which status verification may take in some systems –
often stretching to several years – not even this label can be relied upon as
a clear indicator of a short-term, transient position in the host state.
Perhaps the most egregious example of a status-based breach of the duty to
reunite families is the Australian decision to assign “temporary protected”
status to all refugees arriving without a valid visa, and to rely on that status to
prohibit such refugees from being reunited with their family members.2209 In
view of the legal right of refugees to seek protection without advance permis-
sion2210 and the duty of states to protect all refugees under their de jure or de
facto jurisdiction,2211 it is difficult to imagine any plausible basis for stigmatiz-
ing all refugees arriving in these circumstances as entitled only to limited
protection rights, and particularly to be denied any right of reunion with
their families. Indeed, the temporary status assigned these refugees does not
even purport to have any relationship to the anticipated duration of the need
for protection in Australia – it is rather a punitively assigned label, earned on
the basis of the refugee’s internationally lawful, but domestically disapproved,
actions. In such circumstances, the denial of all facilities for family reunifica-
tion cannot be said to be reasonable under international law, meaning that
Australia should be found in breach of its duties under Art. 23(2) of the Civil
and Political Covenant.
It follows that to the extent that a government relies strictly upon the label
assigned a given individual – for example, “asylum-seeker” or “temporarily
protected” person – to grant or to withhold rights to family reunification, it
does not implement the right to family reunification in a reasonable way. To be
clear, the argument here is not that the duty to act reasonably compels an
immediate right of all refugees to family reunification; rather, it is simply that
any delay in allowing refugees to access family reunification facilities must be
based on rational, substantive considerations rather than simply on the basis of
the formal status assigned to them. For example, assuming the existence of
discretion to take account of the special psychological or other circumstances
of the persons concerned, the Human Rights Committee’s understandings
would likely sanction an incremental approach under which a refugee (what-
ever his or her formal status) would be entitled to be reunited with a spouse and
children after one year in the asylum state, and with other dependent family
members after two years there. Under such a model, states would have ample
time to avoid the reunification of families where the primary claim to protec-
tion is clearly unfounded, or where the need for protection is really short-lived.

2208 2209 2210

See text at note 2093. See text at note 2074. See Chapter 4.2.
2211
See Chapter 3.1.1.

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 4.6 f a m i l y ri g h t s 693

Yet refugees would not be indefinitely denied their right to family unity simply
on the basis of a formal label assigned to them.
A potential weakness of Art. 23(2) as the basis for a duty of refugee family
reunification is that its duty to reunify families is textually embedded in “[t]he
right of men and women of marriageable age to marry and to found a family
[emphasis added].”2212 In a slimly reasoned decision, the Human Rights
Committee determined that this provision did not entitle a lesbian couple to
marry because “[u]se of the term ‘men and women,’ rather than the general
terms used elsewhere in . . . the Covenant, has been consistently and uniformly
understood as indicating that the treaty obligation of States parties stemming
from article 23, paragraph 2, of the Covenant is to recognize as marriage only the
union between a man and a woman wishing to marry each other.”2213 Nowak’s
analysis of this decision suggested that persons in a same-sex relationship or
unmarried persons with children do not qualify to benefit from the right to
“found a family” (including the right to unity and to reunification of family):

Since the right of “men and women” to marry, according to the jurispru-
dence of the Committee, only applies to heterosexual couples, this
restricted scope of application of Art. 23(2) presumably also applies to
the right to found a family. Same-sex couples who live together with or
without children, or women or men who live alone with their children, are,
therefore, not protected by the right to found a family. This does not mean
that such persons do not constitute a family within the meaning of Art. 17
(1) and Art. 23(1).2214

On this reading, single persons with children or same-sex couples (with or

without children) are protected from capricious or unpredictable interference
with family unity (Art. 17)2215 and are “entitled to protection by society and the
State” (Art. 23(1)), but are nonetheless excluded from the affirmative right to
“found a family”– and hence to family reunification – contained in Art. 23(2).
This seems an unduly restrictive interpretation.
First, the language of the Human Rights Committee in this decision suggests
an intention strictly to limit its ambit, with the Committee finding only that
“the treaty obligation of States parties stemming from article 23, paragraph 2, of
the Covenant is to recognize as marriage only the union between a man and a
woman wishing to marry each other [emphasis added].”2216 The use of the

2212
Civil and Political Covenant, at Art. 23(2).
2213
Joslin v. New Zealand, HRC Comm. No. 902/1999, UN Doc. CCPR/C/75/D/902/1999,
decided July 17, 2002, at [8.2].
2214
Nowak, UN Covenant on Civil and Political Rights (2005), at 532–533. This analysis is not
found in Schabas, Nowak’s CCPR Commentary (2019).
2215
See text at note 2158 ff.
2216
Joslin v. New Zealand, HRC Comm. No. 902/1999, UN Doc. CCPR/C/75/D/902/1999,
decided July 17, 2002, at [8.2].

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 694 4 righ t s of r efug ee s ph y sica lly p r es en t

singular (rather than speaking to the several obligations which the Committee
had previously recognized as flowing from Art. 23(2))2217 suggests a determin-
ation narrowly to speak only to the issue of access to marriage as such.2218
Indeed, the Committee has previously determined that actual marriage is not
required to invoke the broader right to protection of family life set by Art. 23,
including the right to family reunification.2219
Second, two members of the Committee specifically noted that facts that
might substantiate a breach of the right to equal protection of the law under
Art. 26 of the Covenant2220 had not been argued in the case.2221 In the view of
these concurring members,

Contrary to what was asserted by the State party . . . it is the established

view of the Committee that prohibition against discrimination on the
grounds of “sex” in article 26 comprises also discrimination based on
sexual orientation. And when the Committee has held that certain differ-
ences in the treatment of married couples and unmarried heterosexual

2217
UN Human Rights Committee, “General Comment No. 19: The Family,” UN Doc. HRI/
GEN/1/Rev.7, July 27, 1990, at [5].
2218
Even on this more narrow point it is not clear that the Joslin decision is sound. As Schabas
has written, “[t]he phrase ‘men and women’ in Art. 23(4) can be traced to Art. 16(1) of the
Universal Declaration of Human Rights. Inspection of the travaux préparatoires of the
Universal Declaration of Human Rights indicates that ‘men and women’ was inserted
into Art. 16(1) not to confirm the ‘traditional’ view of marriage, as the Committee has
implied, but rather to stress the equal position of women within the marriage . . . The
wording of Art. 23(2) does not rule out broader interpretation taking into account the
rapidly evolving views in many societies in this respect”: Schabas, Nowak’s CCPR
Commentary, at 647–648.
2219
In the context of its rejection of an argument by France that a refugee from Cameroon
forfeited the right to be reunited with his wife by virtue of the absence of evidence of
conjugal relations with her, and proof of his sexual infidelity with another woman, the
Committee held that “Article 23 of the Covenant guarantees the protection of family life
including the interest in family reunification. The Committee recalls that the term
‘family,’ for purposes of the Covenant, must be understood broadly [so] as to include
all those comprising a family in the society concerned. The protection of such family is
not necessarily obviated, in any particular case, by the absence of formal marriage bonds,
especially where there is a local practice of customary or common law marriage. Nor is
the right to protection of family life necessarily displaced by geographical separation,
infidelity, or the absence of conjugal relations”: Ngambi and Nébol v. France, HRC
Comm. No. 1179/2003, UN Doc. CCPR/C/81/D/1179/2003, decided July 16, 2004,
at [6.4].
2220
See generally Chapter 3.4 for a detailed analysis of Art. 26.
2221
“[I]n the current case we find that the authors failed, perhaps intentionally, to demon-
strate that they were personally affected in relation to certain rights not necessarily related
to the institution of marriage, by any such distinction between married and unmarried
persons that would amount to discrimination under article 26”: Joslin v. New Zealand,
HRC Comm. No. 902/1999, UN Doc. CCPR/C/75/D/902/1999, decided July 17, 2002,
Individual opinion of Committee members Mr. Rajsoomer Lallah and Mr. Martin
Scheinin (concurring).

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 4.6 f a m i l y ri g h t s 695

couples were based on reasonable and objective criteria and hence not
discriminatory, the rationale of this approach was in the ability of the
couples in question to choose whether to marry or not to marry, with all
the entailing consequences. No such possibility of choice exists for same-
sex couples in countries where the law does not allow for same-sex
marriage or other types of same-sex partnership with consequences simi-
lar to or identical with those of marriage. Therefore, a denial of certain
rights or benefits that are available to married couples may amount to
discrimination prohibited under article 26, unless otherwise justified on
reasonable and objective criteria.2222

This reasoning is both helpful and yet also unduly circumscribed.

On the positive side of the ledger, the concurring members make clear that
states are under a duty to implement the broader content of Art. 23(2) in a
manner that comports with the duty to ensure equal protection of the law
without discrimination, in particular on the basis of sexual orientation. This
understanding aligns with the views of the Inter-American Court of Human
Rights that the differential treatment of opposite-sex and same-sex couples is
presumptively discriminatory,2223 and the more specific determination of the
European Court of Human Rights that a state must implement a right to family
reunification without discrimination based on sexual orientation.2224 And
critically, as the Court of Justice of the European Union recently determined
in a challenge to Romania’s refusal to grant a residence permit to the same-sex
husband of a citizen lawfully married in Brussels, this is so whatever the
definition of marriage that is adopted by a given state.2225 This reasoning
2222
Ibid.
2223
“Establecer un trato diferente entre las parejas heterosexuales y aquellas del mismo sexo
en la forma en que puedan fundar una familia – sea por una unión marital de hecho o un
matrimonio civil – no logra superar un test estricto de igualdad . . . Pues, a juicio del
Tribunal, no existe una finalidad que sea convencionalmente aceptable para que esta
distinción sea considerada necesaria o proporcional”: Advisory Opinion OC-24/17
(IACtHR, Nov. 24, 2017), at [220].
2224
Pajić v. Croatia, Dec. No. 68453/13 (ECtHR, May 23, 2016), at [74], [77]. This decision
builds on the ruling in Schalk and Kopf v. Austria, Dec. No. 30141/04 (ECtHR, June 24,
2010) that “a cohabiting same-sex couple living in a stable de facto partnership falls
within the notion of ‘family life,’ just as the relationship of a different-sex couple in the
same situation would”: ibid. at [94].
2225
“[T]he obligation for a Member State to recognise a marriage between persons of the
same sex concluded in another Member State in accordance with the law of that state, for
the sole purpose of granting a derived right of residence to a third-country national, does
not undermine the institution of marriage in the first Member State . . . Such recognition
does not require that Member State to provide, in its national law, for the institution of
marriage between persons of the same sex. It is confined to the obligation to recognise
such marriages, concluded in another Member State in accordance with the law of that
state, for the sole purpose of enabling such persons to exercise the rights they enjoy under
EU law. Accordingly, an obligation to recognise such marriages for the sole purpose of
granting a derived right of residence to a third-country national does not undermine the

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 696 4 righ ts of r efug ee s ph y sica lly p r es en t

makes clear, for example, that Art. 4 of the European Union’s Family
Reunification Directive2226 should be understood to grant a refugee the right
to be reunited with his or her same-sex spouse.
The unfortunate part of the reasoning of the concurring members of the
Human Rights Committee, however, is that their warning of potential discrim-
ination was predicated on the inability of same-sex couples to marry.2227 If the
applicants had been a heterosexual couple who chose not to marry, or indeed a
same-sex couple opting not to marry in a country that allows them that option,
this reasoning – supported by other decisions of the Human Rights
Committee2228 – suggests that there would be no impermissible discrimin-
ation. This means that while the first part of Nowak’s reasoning2229 (that same-
sex couples are outside the right to found a family) is trumped by the duty of
non-discrimination under Art. 26, his second conclusion (that women or men
who live alone with their children are not protected by the right to found a
family) may be accurate. And of course it leaves couples who choose to form a
life together but not to exercise an option formally to marry completely out in
the cold.
This is an unsound approach. Art. 26 does not simply protect persons on the
grounds of “sex” (including sexual orientation), but proscribes discrimination
“on any ground,” including “other status.”2230 An individual who chooses to
cohabit with an unmarried partner (with or without children), or a single
person who lives with his or her children, should be understood to enjoy rights
of family protection by virtue of the right under Art. 26 not to be discriminated
against on the grounds of their unmarried status – including to enjoy the same
right to family reunification which the Human Rights Committee has deter-
mined to fall under Art. 23(2).2231 In line with the approach of the European

national identity or pose a threat to the public policy of the Member State concerned”:
Coman and Hamilton v. Romania, Dec. No. C-673/16 (CJEU, June 5, 2018), at [39].
2226
See text at note 2083.
2227
“No such possibility of choice exists for same-sex couples in countries where the law does
not allow for same-sex marriage or other types of same-sex partnership with conse-
quences similar to or identical with those of marriage. Therefore, a denial of certain rights
or benefits that are available to married couples may amount to discrimination”: Joslin v.
New Zealand, HRC Comm. No. 902/1999, UN Doc. CCPR/C/75/D/902/1999, decided
July 17, 2002, Individual opinion of Committee members Mr. Rajsoomer Lallah and Mr.
Martin Scheinin (concurring).
2228
See e.g. LG Danning v. Netherlands, HRC Comm. No. 180/1984, UN Doc. CCPR/C/OP/2
at 205, decided Apr. 9, 1987; Young v. Australia, HRC Comm. No. 941/2000, UN Doc.
CCPR/C/78/D/941/2000, decided Aug. 6, 2003, at [10.4] (“[I]n previous communications
the Committee found that differences in the receipt of benefits between married couples
and heterosexual unmarried couples were reasonable and objective, as the couples in
question had the choice to marry with all the entailing consequences”); and X v.
Colombia, HRC Dec. No. 1361/2005, UN Doc. CCPR/C/89/D/1361/2005, decided Mar.
30, 2007, at [7.2].
2229
See text at note 2214. 2230 See Chapter 1.5.5. 2231 See text at note 2188.

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 4.7 f r e e d o m o f t h o ug h t , co n s ci e nc e, and religion 697

Court of Justice, analysis should focus simply on “the extent of economic or

physical dependence and the degree of relationship” for purposes of under-
standing when family members are entitled to reunification.2232 In contrast,
the notion that any purely status-based differentiation (heterosexual or homo-
sexual, married or unmarried, single or coupled) should be the basis to
withhold such a critical right from refugees and others ought simply to be
rejected.
In sum, Art. 23(2) of the Civil and Political Covenant – in contrast to the
legal duty to avoid unlawful or arbitrary interference with a refugee’s family as
elaborated in Art. 17 – is a standard against which the sufficiency of an asylum
state’s affirmative efforts to ensure refugee family unity, including by way of
reunification efforts, may legitimately be measured.2233 At the very least,
authoritative interpretations of Art. 23(2) make it clear that an asylum state
which refuses either to admit or to facilitate the reunification of a refugee’s
“family” – albeit as defined by the asylum country’s own understanding of
relevant relationships, though subject to respect for the duty of non-
discrimination at international law – is in breach of its international legal
obligations.2234

4.7 Freedom of Thought, Conscience, and Religion

Refugees whose religious faith is foreign to an asylum state are at times denied
the right freely to practice their religion there. In Chad, for example, Nigerian
and Senegalese members of the Faydal Djaria Muslim community were
arrested at the behest of the Chadian Higher Council of Islamic Affairs,
which took umbrage at this community’s alleged failure to conform to the

2232
Secretary of State for the Home Department v. Muhammad Sazzadur Rahman, Dec. No.
C-83/11 (CJEU, Sept. 5, 2012), at [23]. The UNHCR also invokes “dependency” in aid of a
“flexible and expansive” approach to family reunification: UNHCR, “Protecting the
Family: Challenges in Implementing Policy in the Resettlement Context,” June 2001, at
[1c]; and UNHCR and Odysseus Network, “Discussion Paper Prepared for the Expert
Roundtable on the Right to Family Life and Family Unity in the Context of Family
Reunification,” Dec. 4, 2017, at [40]. The arguments in favor of reliance on interdepend-
ency as the basis for family class admissions are canvassed in J. Hathaway, Toward a
Contextualized System of Family Class Immigration: A Study for the Government of
Canada (1994).
2233
Fourlanos reaches a comparable conclusion on the basis of Art. 10(1) of the Economic,
Social and Cultural Covenant. “If a State grants many kinds of protection to a family (e.g.
financial, practical, education), but fails to ensure family unity, then that State has not
complied with Article 10(1) of [the Economic, Social and Cultural] Covenant. This is
especially so when minor children are living with the family”: Fourlanos, Sovereignty, 99.
2234
“Obviously, by imposing such duties on States, the principle of family unity limits the
State exclusionary power with regard to admission of aliens. A State refusing admission to
a family member will probably find itself in contravention of international law, unless
there is a reason to justify such a deviation”: Fourlanos, Sovereignty, at 110.

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 698 4 righ t s of r e f ugee s ph y sica lly pr es en t

principles of Islam.2235 Refugees of a minority religion may also experience

pressure from other refugees to conform to dominant beliefs, as was the case
for many Afghan refugees living in Pakistani camps controlled by conservative
religious groups committed to strict enforcement of Islamic codes.2236 In still
other cases, pressure to change religious ways comes from groups that administer
aid. Syrian Muslim refugees were the objects of proselytization by Christian aid
workers in Greece during the month of Ramadan,2237 Bosnian Muslim refugees in
Austria were accused of religious laxity by a Saudi-run relief agency when they
refused to accept scarves for the women refugees to cover their heads,2238 and an
Anglican aid group assisting Muslim refugees in Lebanon conditioned a monthly
stipend on attendance at weekly Bible groups.2239 Restrictions on the practice of
religion may also follow from efforts to foster neutrality, as when asylum centers
in Denmark banned religious practice in public areas.2240
More commonly, however, the religious freedom of refugees is constrained
by limits which apply, at least in principle, to all persons in the asylum country
rather than being targeted at refugees as such. Restrictions on belief or action
directed at those who profess minority religions are, however, more likely to
have a disproportionate impact on refugees and other aliens since most citizens
will by definition be a part of the majority in their own country.2241 Moreover,
2235
“Report of the Special Rapporteur on the Elimination of All Forms of Intolerance and of
Discrimination Based on Religion or Belief,” UN Doc. E/CN.4/2001/63, Feb. 13, 2001,
at [130].
2236
Some refugees compelled to live in those camps were thus required to abide by religious
standards in which they did not believe, and to which they had not subscribed in their
home country: N. Ahmad, International Academy of Comparative Law National Report
for Pakistan (1994), at 9, citing as an example the required use of purdah (veil covering a
woman’s face). “Daily life in the camps strongly reflects the greater Islamification of
society. There is peer pressure to conform and also pressure from the Mujahadeen”:
K. Clark, “Islamic Fundamentalism in the Afghan Camps in Peshawar,” (1992) 3(1)
Women Against Fundamentalism Journal 15, at 15.
2237
P. Kingsley, “Aid Workers Accused of Trying to Convert Muslim Refugees at Greek
Camp,” Guardian, Aug. 2, 2016.
2238
K. Durán and J. Devon, “Saudi Relief Hypocrisy: How the Kingdom Uses and Abuses
‘Charity,’” National Review Online, May 13, 2003.
2239
J. Ensor, “The Muslim Refugees Converting to Christianity ‘to Find Safety,’” Telegraph,
Jan. 30, 2017.
2240
“[T]hose in charge of the [asylum] centres sometimes follow an excessively cautious
approach towards religion . . . to the extent that they ban any religious practice in the
public areas of the asylum centre. While a certain level of regulation is required to ensure
cohabitation in such centres, the complete ban of prayer in collective areas seems an
unduly restrictive measure that might amount to a violation of freedom of religion if no
alternative space is offered for collective prayer”: “Report of the Special Rapporteur on
Freedom of Religion and Belief on his Mission to Denmark,” UN Doc. A/HRC/34/50/
Add.1, Dec. 28, 2016, at [49].
2241
“An issue that merits special mention is increasing intolerance of refugees and asylum
seekers of a particular religious affiliation in order to, for example, maintain the trad-
itional religious make-up of a State or to appease populist responses to the ‘other’. It must

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 4. 7 f r e ed om of tho ug ht, cons cience, and r elig ion 699

the vulnerability of refugees to loss of religious freedom may be heightened by

the denial in some states of even formal guarantees of religious freedom to
non-citizens. The government of the Maldives, for instance, “prohibit[s] resi-
dent foreigners and foreign tourists from practicing any religion other than
Islam in public . . . [I]t continued to permit foreigners to raise their children to
follow any religious teaching they wished, but only in private.”2242 Azerbaijan
prohibits proselytizing by foreign residents, but not by its own citizens.2243
Aliens may also face unique immigration-related barriers and penalties for
prohibited acts. Until recently, Canada required persons receiving its citizen-
ship to remove face-covering attire to ensure proper recitation of the oath of
allegiance.2244 And in the United Arab Emirates, the penalty for foreign
residents found guilty of transgressions such as black magic, sorcery, and
incantations is deportation, a penalty obviously not capable of being applied
against citizens.2245
Refugees may face particular difficulties when they are received in a theo-
cratic state, in which all are expected to abide by a particular set of beliefs. For
example, Taliban authorities in Afghanistan required all Muslims to adhere to
an interpretation of Islam under which virtually all human rights of women
were denied.2246 The same is true when the host country is hostile to religious

be emphasized that this action amounts to a ‘territorialization’ of religion or belief, which

goes against both the spirit and the letter of the right to freedom of religion or belief”:
“Report of the Special Rapporteur on Freedom of Religion and Belief,” UN Doc. A/HRC/
34/50, Jan. 17, 2017, at [53].
2242
US Department of State, “International Religious Freedom Report for 2018: Maldives,” www
.state.gov/reports/2018-report-on-international-religious-freedom/maldives/, accessed Feb.
20, 2020.
2243
“The law prohibits proselytizing by foreigners but does not prohibit citizens from doing
so. In cases of proselytization by foreigners and stateless persons, the law sets a punish-
ment of one to two years in prison”: US Department of State, “International Religious
Freedom Report for 2018: Azerbaijan,” www.state.gov/reports/2018-report-on-inter
national-religious-freedom/azerbaijan/, accessed Feb. 20, 2020.
2244
Pew Research Center, “Restrictions on women’s religious attire,” Apr. 5, 2016, at 7. The
ban on the wearing of the niqab was struck down by the Federal Court of Appeal: Canada
v. Ishaq, [2015] FCA 194 (Can. FCA, Sept. 15, 2015).
2245
US Department of State, “International Religious Freedom Report for 2018: United Arab
Emirates,” www.state.gov/reports/2018-report-on-international-religious-freedom/
united-arab-emirates/, accessed Feb. 20, 2020.
2246
“[T]he Taliban’s policy of intolerance and discrimination in the name of religion . . . affects
Afghan society as a whole and women and Shiite Muslims in particular. Two communica-
tions reveal that the Taliban has introduced what is in point of fact a system of apartheid in
respect of women, based on its interpretation of Islam: exclusion of women from society,
employment and schools, obligation for women to wear the burqa in public and restrictions
on travel with men other than members of the family . . . The Special Rapporteur believes
that the maintenance, openly and publicly, of an apartheid policy of this nature is abnormal,
from the standpoint of human rights”: “Report of the Special Rapporteur on the Elimination
of All Forms of Intolerance and of Discrimination Based on Religion or Belief,” UN Doc. E/
CN.4/1999/58, Jan. 11, 1999, at [26]. Even now, “[t]here continued to be reports of the

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 700 4 righ ts of r efug ee s ph y sica lly p r es en t

practice of any kind. Uighur migrants to China have been among the more
than 2 million Uighurs, ethnic Kazhaks and members of other Muslim groups
who have been subjected to disappearance, physical abuse, and prolonged
detention without trial2247 because of their religion.2248 And in Uzbekistan, a
stringent approach to the registration of religions – which requires the appli-
cation of at least 100 adult Uzbek citizens and criminalizes unregistered
religious activity – similarly suppresses a broad-ranging class of minority
religious communities.2249
Many states impose restrictions that target the adherents of minority reli-
gions. For example, the Jehovah’s Witness refugees who fled from
Mozambique to Malawi found that the Witnesses were one of five religious

Taliban and ISKP monitoring the social habits of local populations in areas under their
control and imposing punishments on residents according to their respective interpretations
of Islamic law”: US Department of State, “International Religious Freedom Report for 2018:
Afghanistan,” www.state.gov/reports/2018-report-on-international-religious-freedom/
afghanistan/, accessed Feb. 20, 2020.
2247
“Multiple media and NGOs estimated that since April 2017, the government detained at
least 800,000 and up to possibly more than 2 million Uighurs, in specially built or
converted detention centers in Xinjiang . . . The government sought the forcible repatri-
ation of Uighur Muslims from foreign countries and detained some of those who
returned”: US Department of State, “International Religious Freedom Report for 2018:
China,” www.state.gov/reports/2018-report-on-international-religious-freedom/china-
includes-tibet-xinjiang-hong-kong-and-macau/, accessed Feb. 20, 2020.
2248
Strict limits on religious freedom are justified by the Chinese government on the grounds that
religious adherents in that country are “duty-bound to undergo patriotic reeducation . . .
[R]eligion must adapt to the local society and to its development and operate within the
confines of the Constitution and laws”: “Report of the Special Rapporteur on the Elimination
of All Forms of Intolerance and of Discrimination Based on Religion or Belief,” UN Doc. E/
CN.4/1999/58, Jan. 11, 1999, at [48]. Indeed, the Chinese government has continued to place
persons “who are easily influenced by religious extremism” in “political education” centers:
“Detainees are required to learn the Chinese language, and recite Chinese and Xinjiang laws
and policies. They are compelled to watch pro-government propaganda videos, and to
renounce their ethnic and religious identities, reciting slogans such as ‘religion is harmful,’
and ‘learning Chinese is part of patriotism’”: Human Rights Watch, “China: Free Xinjiang
‘Political Education’ Detainees,” Sept. 10, 2017.
2249
A. Shaheed, “Report of the Special Rapporteur on Freedom of Religion or Belief on his
Mission to Uzbekistan,” UN Doc. A/HRC/37/49/Add.2, Feb. 22, 2018, at [23]–[25]; see
also [39]–[40]. “The limitations occasioned by the registration requirement leave reli-
gious communities trapped in a vicious cycle of violations of the law. In order to be
registered, religious communities need to have a certain number of believers. However,
without the right to share their religion freely with others, it is difficult for religious
communities to increase the membership, hence almost impossible to be registered.
Without the required registration, religious communities cannot carry out religious
activities in groups or in public, neither can they establish a central administrative
body to set up religious institutions to allow their members to learn about their religion
or be trained as religious personnel. In short, these limitations seriously violate the right
to freedom of religion or belief”: ibid. at [48].

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 4.7 f reedom of thought, conscience, a nd religion 701

groups whose religious practice was outlawed by that country during the reign
of President Hastings Banda.2250 Russia similarly lists Jehovah’s Witnesses as a
group banned “in connection with the carrying out of extremist activities”; this
designation places them alongside such groups as Al Qaeda and the Islamic
State.2251 Egypt2252 and Iran2253 are among the states which have criminalized
practice of the Baha’i faith, while Pakistan relies on far-reaching blasphemy
laws2254 to target Ahmadis and other minority faiths.2255 In Vietnam, police

2250
Due to their precarious situation in Malawi, the Jehovah’s Witnesses “have taken advan-
tage of any chance to leave Malawi”: D. Cammack, “Protection in a ‘Model Program’:
Mozambican Refugees in Malawi” (1993), at 16–17. The one-party regime of President
Hastings Banda ended in 1994, and religious freedom for minorities has now been
restored, including provision for the payment of damages to persons dismissed from
official employment on grounds of religion: US Department of State, Annual Report on
International Religious Freedom for 2002 (2002), at 60–61.
2251
This designation resulted in members’ placement on a list of “terrorists and extremists”:
A. Higgins, “Russia Moves to Ban Jehovah’s Witnesses as ‘Extremists,’” New York Times,
Apr. 4, 2017. The Russian Supreme Court’s rejection of a challenge to the measure,
moreover, confirmed the “closure of the group’s Russian headquarters, local chapters and
the seizure of its property by the state”: L. Dearden, “Jehovah’s Witnesses Ban Comes into
Force in Russia after Supreme Court Dismisses Appeal,” Independent, July 18, 2017.
2252
“The law does not recognize the Baha’i Faith or its religious laws and bans Baha’i
institutions and community activities . . . The government did not prevent Baha’is,
members of the Church of Jesus Christ, and Jehovah’s Witnesses from worshiping
privately in small numbers. However, Baha’i sources said the government refused
requests for public religious gatherings”: US Department of State, “International
Religious Freedom Report for 2018: Egypt,” www.state.gov/reports/2018-report-on-inter
national-religious-freedom/egypt/, accessed Feb. 20, 2020.
2253
“[A]pproximately 90 Baha’is were in prison as of November. The BIC stated that all arrests
and detentions were directly linked to the individual’s professed faith and religious identity.
Charges brought against Baha’is included ‘insulting religious sanctities,’ ‘corruption on
earth,’ ‘propaganda against the system,’ espionage and collaboration with foreign entities,
and actions against national security. Charges also included involvement with the Baha’i
Institute for Higher Education (BIHE), a university-level educational institution the govern-
ment considered illegal. According to the BIC, in many cases, the authorities made arrests in
conjunction with raids on Baha’i homes, during which they confiscated personal belongings,
particularly religious books and writings”: US Department of State, International Religious
Freedom Report for 2018: Iran,” www.state.gov/reports/2018-report-on-international-reli
gious-freedom/iran/, accessed Feb. 20, 2020.
2254
“The courts continued to enforce blasphemy laws, punishment for which ranges from life in
prison to execution for a range of charges, including ‘defiling the Prophet Muhammad.’
According to civil society reports, there were at least 77 individuals imprisoned on blasphemy
charges, at least 28 of whom had received death sentences, although the government has never
executed anyone specifically for blasphemy”: US Department of State, “International
Religious Freedom Report for 2018: Pakistan,” www.state.gov/reports/2018-report-on-inter
national-religious-freedom/pakistan/, accessed Feb. 20, 2020.
2255
“Ahmadis are some of the most common defendants in criminal charges of blasphemy, which
in Pakistan can carry the death penalty. By law they cannot call their place of worship mosques
or distribute religious literature, recite the Koran or use traditional Islamic greetings, measures

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 702 4 ri g h t s of r e f u g e es ph y s i c a l l y p r e s e nt

beat a Montagnard leader for failing to renounce his faith;2256 Saudi Arabia
expelled an Indian Christian for distributing a Christian videotape.2257
The precise focus of efforts to repress religious practice varies considerably.
In some states, the goal is to prohibit the actual holding of particular religious
views, whether or not these views are put into practice. For example, Eritrea
recognizes only four state-approved religions and holds adherents of unregis-
tered groups in detention, sometimes for years or even decades.2258 Officials in
Laos have evicted Christians for failing to renounce their faith.2259 Some states,

that they say criminalize their daily lives”: S. Sayeed, “Pakistan’s Long-Persecuted Ahmadi
Minority Fear Becoming Election Scapegoat,” Reuters, Nov. 15, 2017.
2256
The pastor later died from his injuries: US Department of State, “International Religious
Freedom Report for 2015: Vietnam,” www.state.gov/documents/organization/269024
.pdf, accessed Feb. 20, 2020. Even now, “[m]embers of various ethnic minority groups
in the Central Highlands collectively known as Montagnards stated government officials
continued to assault, monitor, interrogate, arbitrarily arrest, and discriminate against
them, in part because of their religious practices”: US Department of State, “International
Religious Freedom Report for 2018: Vietnam,” www.state.gov/reports/2018-report-on-
international-religious-freedom/vietnam/, visited Feb. 20, 2020.
2257
“Saudi Arabia replied that George Joseph had been arrested for having engaged in activities
that created a disturbance and in response to complaints from persons living in his neigh-
bourhood. Mr. Joseph was allegedly distributing a video that was illegal, being contrary to the
values and rules in force in Saudi Arabia”: “Report of the Special Rapporteur on the
Elimination of All Forms of Intolerance and of Discrimination Based on Religion or
Belief,” UN Doc. E/CN.4/2001/63, Feb. 13, 2001, at [10]–[11]. More recently, “[t]he govern-
ment continued to set policy aimed at enforcing Islamic norms; for example, the government
threatened to expel foreigners who did not refrain from eating, drinking, or smoking in public
during Ramadan”: US Department of State, “International Religious Freedom Report for
2018: Saudi Arabia,” www.state.gov/reports/2018-report-on-international-religious-free
dom/saudi-arabia/, accessed Feb. 20, 2020.
2258
“The government recognizes four officially registered religious groups: the Eritrean Orthodox
Church, Sunni Islam, the Roman Catholic Church, and the Evangelical Lutheran Church of
Eritrea. Unregistered groups lack the privileges of registered groups, and their members can be
subjected to additional security service scrutiny . . . International nongovernmental organiza-
tions (NGOs) and media continued to report members of all religious groups were, to varying
degrees, subjected to government abuses and restrictions. Members of unrecognized religious
groups reported instances of imprisonment and deaths in custody due to mistreatment and
harsh prison conditions, and detention without explanation of individuals observing the
recognized faiths”: US Department of State, “International Religious Freedom Report for
2018: Eritrea,” www.state.gov/reports/2018-report-on-international-religious-freedom/eri
trea/, accessed Feb. 20, 2020.
2259
A. Jahangir, “Report of the Special Rapporteur on Freedom of Religion or Belief on his
Mission to the Lao People’s Democratic Republic,” UN Doc. A/HRC/13/40/Add.4, Jan. 27,
2010, at [40]. “The advocacy group Human Rights Watch for Lao Religious Freedom
(HRWLRF) reported that on November 18 three police officers in Keovilia village,
Vilabouly District, Savannakhet Province, arrested three men and one elderly woman for
being Christian . . . According to HRWLRF, the police held the men in handcuffs and feet
stocks. Police released the four, but evicted them from their homes and confiscated their
property. According to HRWLRF, police threatened them with unspecified criminal charges
if they did not renounce Christianity”: US Department of State, “International Religious

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 4.7 f r ee d o m o f th o u g h t , c o n s c i e nc e , a n d r e l i g i o n 703

including Saudi Arabia, have punished atheism, agnosticism, and other irreli-
gious beliefs by subjecting proponents to capital punishment and lashings on
charges of blasphemy and apostasy.2260 Sudan2261 and Yemen similarly impose
capital punishment for conversion from Islam to virtually any other religion.
In one case, the Yemeni government agreed not to carry out a death sentence
imposed for apostasy on a Somali refugee who had converted from Islam to
Christianity; the “solution” arrived at in cooperation with UNHCR was to
expel the refugee from the country to Djibouti.2262

Freedom Report for 2018: Laos,” www.state.gov/reports/2018-report-on-international-reli

gious-freedom/laos/, accessed Feb. 20, 2020.
2260
“There were numerous reports of government authorities calling for the prosecution of
atheists, and during the year [2015], there were two known cases of courts prosecuting
accused atheists. In February national media reported the General Court in Hafr al-Batin
sentenced an individual to death on charges of apostasy related to renouncing his Muslim
faith and desecrating a Quran on video, although his execution had not been carried out at
year’s end. In November media and local sources reported that the General Court in Abha
had sentenced Palestinian poet Ashraf Fayadh to death for apostasy, overturning a previous
sentence of four years’ imprisonment and 800 lashes. Officials from the CPVPV
[Commission for the Promotion of Virtue and Prevention of Vice] initially arrested
Fayadh in August 2013 after reports that he had made disparaging remarks about Islam.
Fayadh was initially charged with blasphemy, spreading atheism in public places, and having
illicit relationships with women”: US Department of State, “International Religious Freedom
Report for 2015: Saudi Arabia,” https://2009-2017.state.gov/j/drl/rls/irf/religiousfreedom/
index.htm?year=2015&dlid=256287#wrapper, accessed Feb. 20, 2020. A reviewing court
later reduced the latter punishment from death to “eight years in prison, 800 lashes and
public repentance”: B. Hubbard, “Saudi Court Spares Poet’s Life but Gives Him 8 Years and
800 Lashes,” New York Times, Feb. 2, 2016. “The courts [have] continued to enforce
blasphemy laws, punishment for which ranges from life in prison to execution for a range
of charges, including ‘defiling the Prophet Muhammad.’ According to civil society reports,
there were at least 77 individuals imprisoned on blasphemy charges, at least 28 of whom had
received death sentences, although the government has never executed anyone specifically
for blasphemy”: US Department of State, “International Religious Freedom Report for 2018:
Saudi Arabia,” www.state.gov/reports/2018-report-on-international-religious-freedom/
saudi-arabia/, accessed Feb. 20, 2020.
2261
“The [Sudanese] criminal code does not explicitly mention proselytizing, but it criminalizes
both conversion from Islam to any other faith (apostasy) and acts that encourage conversion
from Islam. Those who convert from Islam to another religion as well as any Muslim who
questions or criticizes the teachings of the Quran, the Sahaba (the Companions of the
Prophet), or the wives of the Prophet may also be considered guilty of apostasy and sentenced
to death. Those charged with apostasy are allowed to repent within a period decided by the
court but may still face up to five years in prison”: US Department of State, “International
Religious Freedom Report for 2018: Sudan,” www.state.gov/reports/2018-report-on-inter
national-religious-freedom/sudan/, accessed Feb. 20, 2020. In 2015, for example, twenty-five
Muslims – including three teenagers – were charged with apostasy for adhering to an
interpretation of Islam other than that sanctioned by the government: Z. Salih, “Sudan
Threatens 25 Muslims with Death on Charges of Apostasy,” Guardian, Dec. 16, 2015.
2262
“On 16 January 2000, Mohammed Omer Hadji, a Somali refugee resident in Yemen, was
reportedly arrested and held at Tawahi police station on account of his conversion to
Christianity. Following his release on 13 March 2000, he was allegedly beaten by the police

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 704 4 righ t s of r e f ugee s ph y sica lly pr es en t

Even in asylum countries where there are no formal limits on religious

belief, true freedom of religion may not exist. Simple adherence to (or refusal to
adopt) a religion may not be prohibited, but religious worship or communal
prayer may be barred or otherwise disturbed. In India, Christian services have
been disrupted and those attending arrested,2263 while Bangladeshi officials
were slow to prosecute participants in mobs that ransacked and destroyed
more than twenty Buddhist temples.2264 Police have raided mosques for
weapons in Germany2265 and forced the closure of unregistered mosques in

and told that he would be killed unless he returned to the Muslim faith. He was reportedly
rearrested two months later and condemned to death by a court for apostasy, although the
court stated that the death sentence would not be carried out if he reconverted to Islam . . .
[T]he Government replied to the UN Special Rapporteur that ‘ . . . such conduct constitutes
an offence under Yemeni laws and legislation.’ Accordingly, the said person was arrested and
referred for trial on the charge of apostasy from Islam to another religion. However, in view
of his status as a refugee in Yemen, the Yemeni Government decided that it would be more
appropriate to expel him from the territory of Yemen in collaboration and coordination with
the UNHCR office in Sana’a. This decision was put into effect and the said person was
expelled to Djibouti on Friday, 25 August, as an alternative to the continuation of the trial
proceedings”: “Report of the Special Rapporteur on the Elimination of All Forms of
Intolerance and of Discrimination Based on Religion or Belief,” UN Doc. E/CN.4/2001/63,
Feb. 13, 2001, at [147]–[148].
2263
“On April 7, the radical nationalist youth brigade Hindu Yuva Vahini, created in 2002 by
Yogi Adityanath, the current chief minister of Uttar Pradesh, raided a Dadhauli church in
Maharajganj district (Uttar Pradesh), and interrupted the church service. There were
about 150 faithful in the church at that time, including 10 American tourists. All
Christians, including the pastor Yuhanna Adam, were arrested by police on charges of
forced conversions to Christianity”: S. Digal and N. Carvalho, “Masses Interupted,
Pastors Arrested, Allegations of Forced Conversions: Easter Plight of India’s
Christians,” Asia News, Apr. 11, 2017. See also “Police Stops Church Event after Yogi
Adityanath’s Hindu Yuva Vahini Alleges Conversion,” Times of India, Apr. 8, 2017.
2264
Known as the 2012 Ramu incident, “more than 20 historic Buddhist temples were
ransacked, torched and finally destroyed. At the same time, a number of houses owned
by Buddhists burned down to ashes. In that case, the Government reacted promptly and
restored the destroyed temples, thus sending a much-needed message that such acts
would not be tolerated. However, none of the perpetrators of the Ramu violence has been
held accountable yet. According to the Government, the police have submitted charges in
eighteen cases, and eleven trials have commenced. The Special Rapporteur notes the
reported progress but urges for prompt justice to be delivered. Many members of
religious minorities, who shared their experiences, remembered such acts of violence,
including lootings, vandalism, torching of houses of worship and even killings. Some
expressed frustration about inadequate reactions of the police and the judiciary, which
they said created a climate of impunity”: “Report of the Special Rapporteur on Freedom
of Religion or Belief on his Mission to Bangladesh,” UN Doc. A/HRC/31/18/Add.2, Jan.
22, 2016, at [50].
2265
“[I]n February of 2015, German police raided the mosque of the Islamic Cultural Center
in Bremen; the police said they suspected that the mosque supported Salafist groups and
that a person associated with the mosque was distributing automatic weapons for a terror
attack. Police broke down the front door of the mosque, handcuffed worshippers and
forced some to lie on the floor for hours. No weapons were found in the mosque. In July, a

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 4.7 f r ee d o m o f th o u g h t , c o n s c i e nc e , a n d r e l i g i o n 705

Angola.2266 To counter “incitement to violence” in the aftermath of the 2016 Nice

attack, France issued emergency orders to close twenty Salafist mosques2267 and
deported a number of foreign Salafi imams suspected of incitement.2268 And
religious services of all kinds were suspended in Zambia during a cholera
outbreak.2269

Bremen regional court ruled that the search was unlawful”: Pew Research Center, “Global
Restrictions on Religion Rise Modestly in 2015, Reversing Downward Trend,” Apr. 11,
2017, at 8. See also US Department of State, “International Religious Freedom Report for
2015: Germany,” at 6, https://2009-2017.state.gov/j/drl/rls/irf/religiousfreedom/index
.htm#wrapper, accessed Feb. 20, 2020.
2266
“Under Angolan law, a religious group needs more than 100,000 members and to be present
in 12 of the 18 provinces to gain legal status, giving them the right to construct schools and
places of worship. There are only an estimated 90,000 Muslims among Angola’s population
of about 18 million”: A. Cabeche and D. Smith, “Angola Accused of ‘Banning’ Islam as
Mosques Closed,” Guardian, Nov. 28, 2013. “The government continued not to recognize
any Muslim groups officially or issue any licenses to Muslim groups to practice their religion
legally . . . The Baha’i Faith and the Global Messianic Church remained the only two non-
Christian organizations legally registered”: US Department of State, “International Religious
Freedom Report for 2018: Angola,” www.state.gov/reports/2018-report-on-international-
religious-freedom/angola/, accessed Feb. 20, 2020.
2267
“Interior Minister Bernard Cazeneuve announced that closure orders had been issued for 20
Salafist mosques. The orders were issued in keeping with the law against incitement, which
states that when incitement is present in a sermon, the authorities close the mosque where it
was delivered”: D. Alfon, “France’s Mosques Envious of Churches after Foreign Funding
Ban,” Haaretz, Aug. 10, 2016. “The mosque closures follow several high-profile attacks by
Islamic extremists in the country in less than two years . . . France has been under a
nationwide state of emergency since the ISIS attacks in Paris in 2015, which grants the
state the ability to enforce tougher measures, including shutting down places of worship
suspected of promoting radical views”: Y. Serhan, “France’s Disappearing Mosques,”
Atlantic, Aug. 1, 2016. After extending the nationwide state of emergency several times
over a three-year period, France transferred much of the order’s policing power – including
the ability to close places of worship – into permanent law: S. Qazi, “French Parliament
Approves New Anti-Terrorism Law,” Al Jazeera, Oct. 3, 2017.
2268
Due to suspicions that the Islamic State attempts to “exert influence mainly through small
Salafist mosques” and the high number of imams ordained overseas, French authorities
“prefer to focus on the clerics who lead the mosques. Of the 2,500 heads of official mosques,
an astounding 2,100 are foreign citizens and 2,350 were ordained outside of France. Only 50
are French citizens ordained in France . . . [Prime Minister] Valls said this week that the
authorities have so far deported 80 clerics suspected of incitement”: D. Alfon, “France’s
Mosques Envious of Churches after Foreign Funding Ban,” Haaretz, Aug. 10, 2016.
However, a Senate committee report indicating that only two French centers are qualified
to train imams, with the result that “some 300 imams are hired from abroad, including many
‘whose French language skills are poor,’” calls into question the legitimacy of considering
ordainment overseas as such a factor: B. Dodman, “Will Banning Foreign Funds for French
Mosques Help Combat Terrorism?” France 24, July 29, 2016.
2269
“Zambian government ministers said Jan. 7 that all gatherings of every nature, including
church services, were banned in areas most affected by the epidemic. The ministers said the
ban is aimed at curbing the spread of the disease and making current treatment measures
more effective”: M. Pintu, “Zambia Bans Church Services as Cholera Epidemic Hits Nation,”
Crux, Jan. 10, 2018. In another province, officials mandated that “all religious meetings . . .

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 706 4 righ t s of r ef ug ee s ph y sica lly p r es en t

Perhaps most commonly, authorities constrain religious practice by limiting

the ability of minority religious organizations to establish a physical presence.
For example, Indian officials have invoked land use rulings to justify the
demolition of unauthorized religious structures.2270 Only Muslim mosques
may be built in the Maldives,2271 while mosques were effectively prohibited in
Athens until 2000.2272 Evangelical churches have been destroyed by the gov-
ernment of Sudan.2273 Officials in Indonesia refused to intervene to prevent the

should be reduced to less than two hours and ensure that all congrega[nts] leave the meeting
place immediately. [Copperbelt Province Permanent Secretary] Mr. Nundwe advised
churches to meet other requirements such as providing soap for hand washing, clean up
the surroundings, provide clean sanitary facilities, avoid handshakes and sensitize congre-
gants on the epidemic. He warned religious organizations who do not meet the set standards
will have their religious facilities closed”: “Copperbelt PS Order Churches to Limit Hours of
Services to Less than 2 Hours,” Lusaka Times, Jan. 11, 2018.
2270
In 2009, the Supreme Court instituted an interim ban on the construction of religious
structures encroaching on public roads, pavements, and sidewalks, and requested that states
identify such pre-2009 structures for demolition or relocation on a case-by-case basis:
D. Mahapatral, “We Will Not Differentiate between Illegal Temple or Mosque: SC,” Times
of India, May 11, 2011. In its 2013 confirmation of the order, the Court extended this rule to
statues, though not to street lights or other public utility services; in addition, the Court
specified its ruling would apply to temples, mosques, churches, and gurudwaras “on public
places abutting roads which significantly restrict movement of vehicles leading to long traffic
snarls”: D. Mahapatral, “Supreme Court Bans Shrines, Statues on Public Roads,” Times of
India, Jan. 19, 2013. In relation to existing unauthorized religious structures, “the bench took
a nuanced position recognizing that removal of such construction is not an easy task for
either municipal authorities or police. It said these could be removed without creating a law
and order problem. ‘Public road is not anyone’s property. Each citizen had a right to use the
road and that right cannot be interfered with or impeded by constructing a temple, mosque,
church or gurudwara or by installing the statue of a public figure,’ said Justices Lodha and
Mukhopadhaya”: ibid. See also “SC Pulls Up States for Not Removing Illegal Roadside
Religious Structures,” LiveLaw, Apr. 20, 2016.
2271
“By law, mosques and prayer houses remain under the control of the MIA rather than the
country’s island councils. The law prohibits the establishment of places of worship for
non-Islamic religious groups”: US Department of State, “International Religious
Freedom Report for 2018: Maldives,” www.state.gov/reports/2018-report-on-inter
national-religious-freedom/maldives/, accessed Feb. 20, 2020.
2272
M. Petronoti, “Greece as a Place for Refugees: An Anthropological Approach to Constraints
Pertaining to Religious Practices,” paper presented to the Conference on War, Exile and
Everyday Life, Institute of Ethnology and Folklore Research, Zagreb, 1995. “In 2000, the
Parliament approved a bill allowing construction for the first Islamic cultural center and
mosque in the Athens area . . . Members of the Orthodox Church oppose the cultural center,
claiming it may ‘spread the ideology of Islam and the Arab world’”: US Department of State,
Annual Report on International Religious Freedom for 2002 (2002), at 385.
2273
The demolition team reportedly arrived “a day after authorities sent a letter saying they
would demolish the church”: “Witnesses: Sudan Demolishes Church in Latest
Persecution of Christians,” CNN, July 1, 2014. In the more recent demolition of a
Presbyterian church, “the police trucks arrived after the church service and demolished
the building of the church . . . ‘No prior notice had been given and a court case is ongoing
contesting the scheduled demolition of this church, first announced in 2016,’ said the

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 4.7 f reedom of thought, conscience, and religi on 707

forcible eviction of several thousand members of a newly established religious

community from the farming compound in which they had settled.2274 Other
tactics are more subtle, if equally effective. In 2009, Switzerland enacted a constitu-
tional ban on the construction of minarets, the prayer towers of mosques.2275
Applications to construct Islamic centers and places of worship in the United
States have faced efforts to block required zoning permits in Kentucky, Maine,
New York, and elsewhere.2276 And Hungary deregistered more than 300 “incorp-
orated churches” – a status that provides for tax benefits and other forms of
support.2277

group. The Sudanese authorities say the removal of a number of churches in Khartoum
state comes as a result of the violated zoning regulations[;] also they say they are not
officially recognised as churches”: “Sudanese Authorities Demolish Evangelical Church
in Khartoum Suburb,” Sudan Tribune, Feb. 14, 2018.
2274
“Indonesian officials and security forces have been complicit in the violent forced eviction of
more than 7,000 members of the Gafatar religious community from their homes on
Kalimantan island since January 2016 . . . Human Rights Watch research in West and East
Kalimantan provinces found that security forces failed to protect members of Gerakan Fajar
Nusantara, known as Gafatar, standing by while mobs from the ethnic Malay and Dayak
communities looted and destroyed properties owned by the group’s members . . . The
security forces prevented physical assaults on Gafatar members, but only by forcibly evacuat-
ing them from Kalimantan . . . Authorities then arbitrarily detained and interrogated them
and threatened them with criminal charges”: Human Rights Watch, “Indonesia: Persecution
of Gafatar Religious Group,” Mar. 29, 2016. Known as Gafatar, “[t]he group, which was
founded in 2012 and claims about 50,000 followers, is a back-to-the-land movement based on
the idea that materialism and cities corrupt spiritual life. It does not call itself a religion. Most
of its members, however, subscribe to Millah Abraham, a new messianic faith that draws on
elements of Islam, Judaism and Christianity. Because it is illegal to establish a new religion in
Indonesia, the government has also banned Gafatar, accusing it of peddling heresies to the
weak-minded, and deploying imams, psychologists and soldiers to ‘rehabilitate’ recruits.
Many, though, refuse to return to a state-approved version of Islam”: J. Emont, “Back-to-
the-Land Spiritual Movement in Indonesia Sparks Government Crackdown,” June 28, 2016.
2275
N. Cumming-Bruce and S. Erlanger, “Swiss Ban Building of Minarets on Mosques,” New
York Times, Nov. 29, 2009.
2276
See ACLU, “Mosques and Community Centers,” www.aclu.org/other/mosques-and-commu
nity-centers, accessed Feb. 20, 2020. According to a 2016 Department of Justice report, “15
percent of the agency’s investigations into religion-related zoning disputes between 2000 and
mid-2010 involved mosques or Islamic schools. Between mid-2010 and mid-2016, that
number jumped to 38 percent. Cases involving Christian denominations still account for
the greatest share of DOJ investigations, but the share of Muslim-related cases is wildly
disproportionate to the religious minority’s size: Roughly 70 percent of American adults
identify as Christians, according to Pew Research Center, while less than 1 percent identify
as Muslims”: E. Green, “The Quiet Religious-Freedom Fight that is Remaking America,”
Atlantic, Nov. 5, 2017.
2277
US Department of State, “International Religious Freedom Report for 2016: Hungary,”
www.state.gov/reports/2016-report-on-international-religious-freedom/hungary/,
accessed Feb. 20, 2020. “Parliament must approve by a two-thirds majority the applica-
tion of a religious organization to function as an incorporated church, a status which
provides for tax benefits and government support. The previous deregistration of more
than 350 incorporated churches remained in effect despite Constitutional Court rulings

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 708 4 ri g h t s of r e f u g e es ph y s i c a l l y p r e s e nt

Even if worship and the presence of organized religious institutions are not
constrained, practices closely connected to religious belief may be restricted or
prohibited. Proselytization is proscribed or heavily regulated in Greece,2278
Malaysia,2279 and Nepal.2280 China defended its refusal to allow children to

during the year that certain provisions of the religion law were unconstitutional or in
breach of the European Convention on Human Rights, and a 2014 ruling of the European
Court of Human Rights (ECHR) declaring the underlying law violated the right to
freedom of association read in light of the freedom of religion”: US Department of
State, “International Religious Freedom Report for 2015: Hungary,” https://2009-2017
.state.gov/j/drl/rls/irf/religiousfreedom/index.htm#wrapper, accessed Feb. 20, 2020. See
also OSCE Forum for Religious Freedom, “Hungary: Two Years after Ruling by ECtHR
Church Law Remains Unaltered,” Sept. 27, 2016, www.osce.org/odihr/268711?down
load=true, accessed Feb. 20, 2020.
2278
“The [Greek] constitution prohibits ‘proselytizing,’ defined by law as ‘any direct or
indirect attempt to intrude on the religious beliefs of a person of a different religious
persuasion with the aim of undermining those beliefs through inducement, fraudulent
means, or taking advantage of the other person’s inexperience, trust, need, low intellect,
or naivete.’ The constitution prohibits worship that ‘disturbs public order or offends
moral principles.’ It allows prosecutors to seize publications that ‘offend Christianity’ or
other ‘known religions’”: US Department of State, “International Religious Freedom
Report for 2018: Greece,” www.state.gov/reports/2018-report-on-international-reli
gious-freedom/greece/, accessed Feb. 20, 2020. The prohibition on proselytizing has
been enforced primarily against members of religious minorities such as Mormons and
Jehovah’s Witnesses. Although enforcement efforts have decreased in recent years, it was
reported in relation to Jehovah’s Witnesses that as recently as 2016, “police in Athens and
in provincial towns attempted to intimidate and discourage preaching or distributing and
displaying information and religious material in public, citing prohibition of proselytism
by the constitution”: US Department of State, “International Religious Freedom Report
for 2016: Greece,” www.state.gov/reports/2016-report-on-international-religious-free
dom/greece/, accessed Feb. 20, 2020.
2279
“The federal constitution states, ‘every person has the right to profess and practice his
religion,’ but gives federal and state governments the power to control or restrict
proselytization to Muslims”: US Department of State, “International Religious Freedom
Report for 2018: Malaysia,” www.state.gov/reports/2018-report-on-international-reli
gious-freedom/malaysia/, accessed Feb. 20, 2020. As part of its approach to the issue of
proselytizing, the National Council for Islamic Religious Affairs issued a fatwa banning
the use of the term “Allah” by non-Muslims: “The Arabic word ‘Allah’ is commonly used
in the Malay language to refer to God by Christians in Malaysia, as it is in other languages
in parts of the Muslim world. But the Malaysian government insists that ‘Allah’ should be
reserved for the country’s 60% Muslim majority out of concerns that its use by others
would confuse Muslims and could be used to convert them”: “Malaysian Court Bans Use
of ‘Allah’ by non-Muslims,” Al Jazeera, Oct. 14, 2013. Malay-language Bibles (which also
employ the term) “are banned everywhere except inside churches” and have been the
target of government seizure: T. Fuller, “The Right to say ‘God’ Divides a Diverse
Nation,” New York Times, Nov. 3, 2014.
2280
“On August 8, 2017 the parliament passed a new criminal code, which reduces the
punishment for converting – or encouraging the conversion of – the religion of another
person or for engaging in any act, including the propagating of religion, that undermines
the religion, faith, or belief of any caste, ethnic group, or community, from six years to five
years’ imprisonment. The law will take effect in August 2018. It also stipulates a fine of up

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 4.7 f r e e d o m o f t h o ug h t , co n s ci e nc e, and religion 709

attend Christian summer camps as necessary “to protect the health and safety
of teenagers during the hot summer days.”2281 Similarly, the diet and attire
associated with certain faiths have increasingly been subject to restriction.
Some French mayors, for instance, have prohibited alternatives to pork in
school cafeterias;2282 others have sought to ban “burkinis,” or the full-body
swimwear preferred by some Muslim women, as posing a threat to public
order.2283 In other areas, restrictions target clothing that covers the face or
the head: Mozambique, for instance, bans face-covering veils in public

to Nepali Rupees (NRs) 50,000 (US $500) and subjects foreign nationals convicted of
these crimes to deportation. The new criminal code also imposes punishments of up to
two years’ imprisonment and a fine of up to NRs 20,000 (US $200) for harming the
religious sentiment of any caste, ethnic community, or class, either in speech or writing”:
US Department of State Diplomatic Security, “Proselytizing Abroad: Where is it Legal
and Illegal?” www.brigada.org/wp-content/uploads/2018/02/OSAC-Proselytizing-
Report-Country-List.pdf, accessed Feb. 20, 2020.
2281
“[A] notice in Wenzhou, capital of Zhejiang province, suggested a different motive.
‘Minors receiving religious education and formation too early in churches would ser-
iously affect the normal implementation of the education system,’ the notice said . . .
Children were banned from summer camps in Zhejiang, Jiangsu, Henan and Inner
Mongolia, while in Fuzhou, the provincial capital of Fujian, churches from the state-
sanctioned Three-Self Patriotic Movement (TSPM) were told to report any activity held
in registered religious venues, or obtain permission to hold events in un-registered
venues”: “China Bans Children – and their Teachers – from Churches,” World Watch
Monitor, Sept. 8, 2017. The ban also applied to churches and Sunday schools in some
areas: C. Shepherd and S. Qiu, “In ‘China’s Jerusalem’, Christians say Faith Trumps
Official Sunday School Ban,” Reuters, Dec. 23, 2017.
2282
Such measures predominantly affect members of the Muslim and Jewish communities. In
addition, the Washington Post notes that “[t]here is an important socioeconomic issue at
play . . . Many Muslim students are among the poorest in the local community, and
requiring that pork be served means forcing them to forgo a ‘wholesome, balanced meal’
one day a week. For school meals, students in Beaucaire have to pay 2.40 euros ($2.95) per
day, which means that Muslim students will now be paying for food they cannot eat”:
J. McAuley, “French Mayor Bans Pork Substitutes in School Meals, saying he’s Defending
Secularism,” Washington Post, Jan. 15, 2018. A similar measure enacted in a town in
Burgundy was later annulled on the grounds that such a restriction was not in the best
interest of children: K. Willsher, “Non-Pork Meals must be Available for School Lunch,
Rules French Court,” Guardian, Aug. 28, 2017.
2283
“Last week, Nice became the latest French resort to ban the burkini. Using language
similar to the bans imposed earlier at other locations, the city barred clothing that ‘overtly
manifests adherence to a religion at a time when France and places of worship are the
target of terrorist attacks.’ The Nice ban refers specifically to the truck attack in the city on
14 July [2016] that claimed 86 lives, as well as the murder 12 days later of a Catholic priest
near the northern city of Rouen”: B. Quinn, “French Police make Woman Remove
Clothing on Nice Beach following Burkini Ban,” Guardian, Aug. 23, 2016. Multiple
French courts later ruled that the attack did not constitute sufficient grounds to justify
such a ban: A. Breeden and L. Blaise, “Court Overturns ‘Burkini’ Ban in French Town,”
New York Times, Aug. 26, 2016; “Burkini Ban Suspended by Nice Court, Dismissing
Claim of Public Order Risk,” Guardian, Sept. 1, 2016.

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 710 4 r i gh t s of ref ug ees physic ally present

schools.2284 In still other cases, the opposite is true. Women in the Russian
republic of Chechnya were forced to wear headscarves in public places as part
of President Kadyrov’s so-called “virtue campaign”; in the capital of Grozny,
several women were attacked with paintball guns when they appeared in
public without headscarves.2285 At times, long-held ancestral traditions – for
instance, the performance of livestock sacrifices and use of opium by
Animists in Laos – have also come under scrutiny by authorities.2286
A particular concern is freedom of religious education. Uzbekistan, for
example, denies parents the right to ensure the religious and moral education
of their children.2287 Norway has insisted on the teaching of a religious ethics
course that emphasizes Christianity in its schools,2288 Turkey mandates reli-
gious instruction for all but Christians and Jews,2289 and some mayors in Italy

2284
Headscarves may also be ordered removed for official photographs for identification
documents: Pew Research Center, “Restrictions on Women’s Religious Attire,” Apr. 5,
2016, at 7.
2285
Ibid. at 12. In other parts of Russia, women are forbidden from donning religious attire:
ibid. at 2.
2286
A. Jahangir, “Report of the Special Rapporteur on Freedom of Religion or Belief on his
Mission to the Lao People’s Democratic Republic,” UN Doc. A/HRC/13/40/Add.4, Jan.
27, 2010, at [56], [59]. The Special Rapporteur also highlighted the belief, predominant
among some ethnic minorities, that “twins are demons or ghost children who have to be
killed instantly after birth” as particularly problematic: ibid. at [58].
2287
A. Shaheed, “Report of the Special Rapporteur on Freedom of Religion or Belief on his
Mission to Uzbekistan,” UN Doc. A/HRC/37/49/Add.2, Feb. 22, 2018, at [37], [44]–[46].
2288
As explained to the Council of Europe by Norway, “[t]he Education Act stipulates that
teaching should be objective, critical and pluralistic. The content should not involve
preaching or religious practice. The same educational principles should be applied so that
all religions and beliefs are treated in a factual and objective manner with respect for their
individuality and diversity. The subject is meant to impart knowledge of Christianity,
other world religions and philosophies of life, and of ethical and philosophical topics. It
should also provide knowledge of the significance of Christianity as part of Norway’s
cultural heritage, and for this reason, Christianity will account for the quantitative larger
part of the teaching material . . . In the spring of 2015, the Storting changed the name of
the subject to Christianity, Religion, Philosophies of Life and Ethics (KRLE), and decided
that knowledge of Christianity shall constitute around half of the syllabus”: Norwegian
Ministry of Local Government and Modernisation, “Fourth Periodic Report on the
Implementation of the Council of Europe’s Framework Convention for the Protection
of National Minorities” (2015), at 22–23.
2289
“The constitution establishes compulsory religious and moral instruction in public and
private primary, middle, and high schools, with content determined by the Ministry of
National Education’s Department of Religious Instruction . . . Religion classes are two
hours per week for students in grades four through 12. Only students who marked
‘Christian’ or ‘Jewish’ on their national identity cards may apply for an exemption
from religion classes. Atheists, agnostics, Alevis or other non-Sunni Muslims, Baha’is,
Yezidis, or those who left the religion section blank on their national identity card are not
exempt from the classes”: US Department of State, “International Religious Freedom
Report for 2018: Turkey,” www.state.gov/reports/2018-report-on-international-reli
gious-freedom/turkey/, accessed Feb. 20, 2020.

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 4.7 f reedom of thought, conscience, and religi on 711

have mandated the in-school display of crucifixes2290 and observation of Easter

benedictions.2291 In Malaysia, restrictions on freedom of religious education have
been applied even to some adults. In 2001, the UN Special Rapporteur on Religious
Intolerance observed that all Muslim civil servants were expected to attend con-
tinuing Islamic education courses. Malaysia defended its position on the grounds
that “[w]hile civil servants are required to be politically neutral, all Malaysians are
expected to play their role in the promotion of religious and cultural harmony . . .
[A]s Islam exhorts its believers to be fair and just to all regardless of religious and
political belief, rather than impairing the neutrality of civil servants, these classes
may in the end emphasize the principle of neutrality.”2292 Conversely, though
Paraguay eliminated religion from its curriculum in public schools, the predomin-
ance of Mennonite and Catholic private schools in particular regions gives rise to a
“de facto monopoly” on families’ choice of education.2293

Refugee Convention, Art. 4 Religion

The Contracting States shall accord to refugees within their terri-
tories treatment at least as favourable as that accorded to their
nationals with respect to freedom to practise their religion and
freedom as regards the religious education of their children.

Civil and Political Covenant, Art. 18

1. Everyone shall have the right to freedom of thought, conscience
and religion. This right shall include freedom to have or to adopt
a religion or belief of his choice, and freedom, either individually
or in community with others and in public or private, to manifest

2290
“‘Crucifixes are Obligatory in Schools and Offices,’” Local, June 26, 2014; see also “Italian
Atheists Vow to Fight pro-Crucifix Court Ruling,” Crux, June 9, 2017.
2291
“Bologna Schools Told to Reinstate Easter Blessings,” Local, Mar. 9, 2016.
2292
“Report of the Special Rapporteur on the Elimination of All Forms of Intolerance and of
Discrimination Based on Religion or Belief,” UN Doc. E/CN.4/2001/63, Feb. 13, 2001, at [97].
2293
“Problems may . . . arise when private schools with a specific religious orientation have a de
facto monopoly in a particular locality or region. In such situations, some parents and pupils
might have no option but to avoid school education based on a denomination different from
their own religious or philosophical convictions. This, however, would amount to an infringe-
ment of their freedom of religion or belief. When visiting Filadelfia, in the Chaco region, the
Special Rapporteur actually learned that the vast majority of schools in that district were run by
the Mennonites, who generally place great importance on biblical teachings as part of their
school education. In other regions, Catholic schools may be predominant to a degree border-
ing on a de facto monopoly. In such situations, it is up to the State, as guarantor of human
rights, to ensure that the freedom of religion or belief of everyone is effectively respected in the
private school sector; this includes the right of pupils not to be exposed to religious instruction
against their will, as well as the right of parents or legal guardians to ensure a religious and
moral education of their children in conformity with their own convictions”: H. Bielefeldt,
“Report of the Special Rapporteur on Freedom of Religion or Belief on his Mission to
Paraguay,” UN Doc. A/HRC/19/60/Add.1, Jan. 26, 2012, at [40]–[41].

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 712 4 r i g h t s of r ef u g e e s p h y s i c a l l y p r e s e n t

his religion or belief in worship, observance, practice and

teaching.
2. No one shall be subject to coercion which would impair his
freedom to have or to adopt a religion or belief of his choice.
3. Freedom to manifest one’s religion or beliefs may be subject
only to such limitations as are prescribed by law and are
necessary to protect public safety, order, health, or morals or
the fundamental rights and freedoms of others.
4. The States Parties to the present Covenant undertake to have
respect for the liberty of parents and, when applicable, legal
guardians to ensure the religious and moral education of their
children in conformity with their own convictions.

Economic, Social and Cultural Covenant, Art. 13(3)

The States Parties to the present Covenant undertake to have
respect for the liberty of parents and, when applicable, legal
guardians, to . . . ensure the religious and moral education of
their children in conformity with their own convictions.

No predecessor refugee treaty included a specific reference to the right of

refugees to enjoy religious freedom, and no such provision was contained in the
working drafts of the Refugee Convention.2294 The oversight seems to have been
based on a belief in the Ad Hoc Committee that “no useful purpose”2295 could be
served by codifying a right so clearly understood to be inalienable.2296 Not only
was the right affirmed in the Universal Declaration of Human Rights, but even
under traditional aliens law there was a well-established duty to respect the non-
citizen’s “personal and spiritual liberty within socially bearable limits.”2297
There was nonetheless overwhelming support at the Conference of
Plenipotentiaries for the contrary view that “the text should impose a contractual

2294
Robinson, History, at 77.
2295
Statement of Mr. Guerreiro of Brazil, UN Doc. E/AC.32/SR.11, Jan. 25, 1950, at 8. See also
Statement of Sir Leslie Brass of the United Kingdom, ibid.: “[A] convention relating to
refugees could not include an outline of all the articles of the Universal Declaration of
Human Rights . . . [B]y its universal character, the Declaration applied to all human groups
without exception and it was pointless to specify that its provisions applied also to refugees.”
2296
“The call for freedom of religion was undoubtedly one of the most important elements that led
to the overcoming of medieval views of the world and the development of modern perceptions
of human rights and fundamental freedoms. Therefore, it is not surprising that freedom of
religion was set down in early, modern-day national and international documents . . .
[F]reedom of thought and religion is not infrequently termed, along with freedom of opinion,
the core of the Covenant . . . based on the philosophical assumption that the individual as a
rational being is master of his or her own destiny”: Schabas, Nowak’s CCPR Commentary,
at 498.
2297
See Chapter 1.1 at note 7.

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 4. 7 f r e ed om of tho ug ht, cons cience, and r elig ion 713

obligation on states”2298 to respect the religious liberties of refugees.2299 In part, a

formal obligation of this kind was felt to be warranted as a basic matter of
principle, since lack of religious freedom was frequently a cause of refugee
flight.2300 But the delegates were also persuaded that “the spiritual and religious
factor was of special significance, having regard to the material and moral distress
prevailing among the majority of refugees.”2301 It would clearly be unacceptable if
refugees forced to flee religious persecution were to be required to accept as
“protection” conditions of life which denied them the very freedom which forced
them abroad – a predicament still faced by some refugees today, as was the case for
the Jehovah’s Witness refugees who fled to Malawi only to find their religion
banned in that country.2302 Such was the importance attached to religious freedom
that the relevant article was given pride of place by locating it immediately after the
duty of non-discrimination, prior to any other substantive rights.2303
Indeed, the right to religious freedom is the only article in the Convention
which comprises a principled obligation on states to take steps for the benefit of
refugees beyond even what is done for their own citizens. The standard of
treatment for the right of refugees to religious freedom is defined as “treatment
at least as favourable as that accorded to their nationals [emphasis
2298
Statement of Msgr. Comte of the Holy See, UN Doc. A/CONF.2/SR.30, July 20, 1951, at
11. See also Grahl-Madsen, Commentary, at 15: “The words ‘shall accord’ indicate a legal
obligation. The right is due to all refugees within the territory, i.e. [it] is not conditioned
on the presence of the refugee being lawful.”
2299
The Ad Hoc Committee deferred consideration of the issue, and ultimately failed to
recommend an article on freedom of religion: UN Doc. E/AC.32/SR.11, Jan. 25, 1950, at
9. The idea was, however, resuscitated by a non-governmental observer, Pax Romana, at
the Conference of Plenipotentiaries: Statement of Mr. Buensod of Pax Romana, UN Doc.
A/CONF.2/SR.11, July 9, 1951, at 9–10.
2300
“He believed that some of the pertinent provisions of the [Universal] Declaration had been
overlooked and that it would be advisable to include . . . two articles reproducing as closely as
possible articles 18 and 19 . . . which related to freedom of thought, conscience and religion,
and freedom of opinion respectively. In his opinion, provisions relating to freedom of
opinion would be most appropriate in a convention on refugees, as the latter, as a rule,
had abandoned their country of origin because they no longer enjoyed that freedom there”:
Statement of Mr. Cuvelier of Belgium, UN Doc. E/AC.32/SR.11, Jan. 25, 1950, at 8.
2301
Statement of Mr. Buensod of Pax Romana, UN Doc. A/CONF.2/SR.11, July 9, 1951, at 10.
The representatives of Austria, Belgium, Canada, Colombia, Egypt, France, Germany, the
Holy See, Luxembourg, the Netherlands, Sweden, the United Kingdom, and Venezuela spoke
in favor of the adoption in principle of an article on the right of refugees to religious freedom:
UN Doc. A/CONF.2/SR.11, July 20, 1951, at 10–18. The view of the Ad Hoc Committee that
reference was not warranted because religious freedom was so obviously a core interest did
not prevail, since there was evidence that in practice even core rights were not always
respected: Statement of Mr. Rain of France, UN Doc. E/AC.32/SR.11, Jan. 25, 1950, at 9.
2302
See text at note 2250.
2303
As initially proposed by Luxembourg, the provision on religious freedom would have
been Art. 17(a): UN Doc. A/CONF.2/SR.30, July 20, 1951, at 10. The representatives of
the Holy See, Venezuela, and Belgium advocated its placement at the start of the
substantive rights in the Refugee Convention: ibid. at 11–12.

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 714 4 r i gh t s of ref ug ees physic ally present

added].”2304 This means that refugees may under no circumstance be

afforded fewer religious rights than citizens – making the practice of the
United Arab Emirates of deporting non-citizens for perceived religious
transgressions (a penalty obviously not capable of being applied against
citizens)2305clearly unlawful.
But the drafters intended more, adopting the “at least as favourable” lan-
guage to set what amounts to a principled commitment to go beyond simple
formal equality in order to recognize “that, precisely on account of their
position as refugees, they were frequently handicapped in the practice of
their religion.”2306 The proponent of this unique standard of treatment did
not clearly define the substance of this duty of states to go beyond a “national
treatment” standard,2307 though there appears to have been agreement in
principle that states should seek to provide what amounts to substantive
equality of religious freedom for refugees. Recognizing that “religious freedom
as an abstract principle might be of little value if divorced from the practical
means of ensuring it,”2308 governments accepted that they would in some
circumstances need to make special efforts to enable refugees to practice
their religion. As Weis observes, simple formal equality of treatment with
nationals would be insufficient “particularly [in] countries in which there is a
State religion to which the refugees do not belong or where the refugees’
religion is not represented in the local population.”2309 As such, even if it
were lawful to limit land use in ways that constrain the construction of
mosques as occurs in parts of the United States2310 or to use tax laws to benefit
only traditional religions as does Hungary,2311 the Refugee Convention
2304
See Chapter 3.3.2 at notes 461–462 and 479 ff.
2305
See text at note 2245. The Human Rights Committee has determined that “deportation
and the resulting loss of [a] residence permit constitute[d] limitations” on Art. 18 rights
in the case of an individual who was removed for conducting missionary activity: Viktor
Leven v. Kazakhstan, HRC Comm. No. 2131/2012, UN Doc. CCPR/C/112/D/2131/2012,
decided Oct. 21, 2014, at [9.2].
2306
Statement of Msgr. Comte of the Holy See, UN Doc. A/CONF.2/SR.33, July 24, 1951, at 8.
“It is the only provision where the 1951 Convention suggests that States parties should
take measures which go beyond what they provide for their own nationals”: C. Walter,
“Article 4,” in A. Zimmermann ed., The 1951 Convention Relating to the Status of Refugees
and its 1967 Protocol: A Commentary 1657 (2011) (Walter, “Article 4”), at 662.
2307
The representative of the Holy See initially argued that assimilation to the nationals of the
asylum state was an inadequate standard of treatment, since “[t]here was . . . a danger that
in countries where religious liberty was circumscribed, refugees would suffer”: Statement
of Msgr. Comte of the Holy See, UN Doc. A/CONF.2/SR.33, July 24, 1951, at 7. Yet he
later insisted that he was not “pressing for preferential treatment of refugees”: ibid. at 8.
2308
Statement of Mr. Petren of Sweden, ibid. at 9. 2309 Weis, Travaux, at 43.
2310
See text at note 2276.
2311
See text at note 2277. In assessing these measures, the European Court of Human Rights
determined that under Art. 9 of the European regional human rights convention, “in
treating the applicants differently from the incorporated Churches not only with regard
to the possibilities for cooperation but also with regard to entitlement to benefits for the

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 4. 7 f r e ed om of tho ug ht, cons cience, and r elig ion 715

requires asylum states to take account of the specificity of the religious needs of
refugees in implementing such policies, rather than simply applying general
rules without attention to the situation of refugees.
This duty to go beyond the standard of treatment afforded citizens was,
however, conceived as “a moral principle . . . somewhat in the nature of an
abstract recommendation, but one which was nevertheless entirely consonant
with the Universal Declaration of Human Rights.”2312 There was no question
of requiring asylum states to dismantle state churches,2313 amend their consti-
tutions,2314 or even to commit financial resources to assist refugees to practice
their religion.2315 Thus, the responsibility to make accommodation for the

purposes of faith-related activities, the [Hungarian] authorities disregarded their duty of

neutrality vis-à-vis the applicant communities”: Magyar Keresztény Mennonita Egyház v.
Hungary, Dec. No. 41463/12 (ECtHR, Sept. 8, 2014), at [115].
2312
Statement of Mr. Rochefort of France, UN Doc. A/CONF.2/SR.33, July 24, 1951, at 7–8.
2313
In calling for modifications to the original draft of Art. 4 tabled by Luxembourg, the
French representative noted that “[t]he difficulty, however, lay in the precise form to be
given to such a declaration of principle . . . The problem also had a bearing on the
question of the national church”: Statement of Mr. Rochefort of France, UN Doc. A/
CONF.2/SR.30, July 20, 1951, at 13. This matter was of particular concern to the Swedish
representative, who referred “to the position in his own country, where there was an
Established Church – the Lutheran Church – supported by the state . . . Quite clearly, if
there was a large influx of, for example, Roman Catholic refugees, Sweden could not be
expected to give them the same treatment as members of the Lutheran Church. He
presumed that under the provisions of article 4 such refugees would receive the same
treatment as Swedish Roman Catholics”: Statement of Mr. Petren of Sweden, UN Doc. A/
CONF.2/SR.33, July 24, 1951, at 8. In line with this view, Walter suggests that “[r]equiring
assimilation to the legal position of a State church would compromise the concept of a
State church as such . . . National treatment in this situation can only mean a treatment
similar to the one that would be given to a religious group that is in a largely similar
situation”: Walter, “Article 4,” at 662. But in light of the duty to ensure equal protection of
the law under Art. 26 of the Civil and Political Covenant (see Chapter 1.5.5), it might be
questioned whether it is “reasonable” for a state to maintain laws that privilege the
position of a particular religion: see e.g. “Concluding Observations: Argentina,” UN
Doc. CCPR/CO/70/ARG, Nov. 15, 2000, at [16] (“The Committee reiterates its concern
that the preferential treatment, including financial subsidies, accorded to the Catholic
Church over other religious denominations constitutes religious discrimination under
article 26 of the Covenant”).
2314
“The text would have to be couched in such terms as would make allowance for the
constitutional procedures providing for religious liberty in each country”: Statement of
Mr. Hoare of the United Kingdom, UN Doc. A/CONF.2/SR.30, July 20, 1951, at 15. See
also concern in this regard expressed by Mr. Rochefort of France, ibid. at 13.
2315
“Material facilities and economic assistance fell entirely outside the scope of the article”:
Statement of Mr. Hoare of the United Kingdom, UN Doc. A/CONF/2/SR.33, July 24,
1951, at 9. See also Statement of Mr. Petren of Sweden and Msgr. Comte of the Holy See,
ibid. Earlier in the debate, the Canadian representative had proposed “that the provision
might be drafted negatively in such terms that Contracting States would undertake not to
restrict in any respect the freedom of refugees within their territories to practise their
religion”: Statement of Mr. Chance of Canada, UN Doc. A/CONF.2/SR.30, July 20, 1951,
at 17.

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 716 4 r i gh t s of ref ug ees physic ally present

special disadvantages faced by refugees in practicing their religion really

imposes a duty of good faith consideration, not a duty of result. The only
clearly binding obligation is that the right of refugees to religious freedom
“must be in no way inferior to that accorded to nationals.”2316 Measured
against this standard, the inferior protection of religious freedom for non-
citizens found in Azerbaijan (which prohibits proselytizing by foreigners, but
not by citizens),2317 the Maldives (which disallows the public practice of
religion by foreigners),2318 and Uzbekistan (which restricts registration of a
religion to citizens)2319 is, to the extent such policies impact refugees, in breach
of the Convention.
The substantive scope of the right of refugees “to practise their religion” is
not spelled out in the Refugee Convention.2320 The original formulation tabled
by France on the initiative of the non-governmental organization Pax Romana
stipulated that refugees should enjoy “full freedom to continue to practice and
manifest their religion . . . individually or jointly, in public and in private,
through education, instruction, religious observance, worship and the carrying
out of rites.”2321 The Working Party’s reformulation deleted this catalog of
protected religious interests in favor of a succinct reference to “complete”
freedom of religious practice,2322 which was in turn amended by the Style
Committee to refer simply to “freedom to practice their religion.” Importantly,
however, nothing in the Conference discussion suggests an interpretation of
the scope of religious freedom less robust than the original list proposed by Pax
Romana.2323 To the contrary, the representatives confirmed their intention to

2316
Grahl-Madsen, Commentary, at 16. 2317 See text at note 2243.
2318
See text at note 2242.
2319
See text at note 2249. In the context of a complaint under Art. 18 of the Civil and Political
Covenant, the Human Rights Committee noted that “the State party has not advanced
any argument as to why it is necessary . . . for the author, in order to engage in prayer
together with his associates from the same church, in conducting a meeting between them
in the church and in preaching, to first register as a foreign missionary”: Viktor Leven v.
Kazakhstan, HRC Comm. No. 2131/2012, UN Doc. CCPR/C/112/D/2131/2012, decided
Oct. 21, 2014, at [9.4].
2320
Indeed, Walter makes the critical observation that “[i]n contrast to other international
human rights instruments, Art. 4 of the 1951 Convention does not expressly mention any
guarantee related to the so-called forum internum, e.g. the right to have or adopt a religion
or, more generally, the right to freedom of thought”: Walter, “Article 4,” at 665.
2321
Statement of Mr. Buensod of Pax Romana, UN Doc. A/CONF.2/SR.11, July 9, 1951, at 10.
Mr. Rochefort of France agreed that this commitment should “be examined in principle”:
ibid. at 11, in consequence of which the proposal was referred to a working party.
2322
UN Doc. A/CONF.2/94, introduced by the representative of Luxembourg, UN Doc. A/
CONF.2/SR.30, July 20, 1951, at 10.
2323
Grahl-Madsen suggests that the absence of a list of protected religious interests in Art. 4
“does not necessarily call for a more restrictive interpretation”: Grahl-Madsen,
Commentary, at 16.

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 4. 7 f reedom of tho ught, cons cience, and r e ligion 717

secure for refugees “a substantial measure of protection and the exercise of

inalienable rights,”2324 and “full freedom in the practice of religion.”2325
An arguably even broader protection is in any event now guaranteed by Art.
18 of the Civil and Political Covenant2326 – which, like nearly all rights set by
general international human rights law, accrues to the benefit of non-
citizens,2327 including refugees.2328 This article of the Covenant establishes a
protected interest in “thought, conscience and religion”:

Although no definition of “thought” or “conscience” is provided, taken

together with “religion” they include all possible attitudes of the individual
toward the world, toward society, and toward that which determines his
fate and the destiny of the world, be it a divinity, some superior being or
just reason and rationalism, or chance.2329

2324
Statement of Msgr. Comte of the Holy See, UN Doc. A/CONF.2/SR.30, July 20, 1951,
at 11.
2325
Statement of Mr. Montoya of Venezuela, ibid. at 12.
2326
The Human Rights Committee refers to Art. 18(1) as “far-reaching and profound”: UN
Human Rights Committee, “General Comment No. 22: Freedom of Thought, Conscience
or Religion” (1993), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [1].
2327
Indeed, Schabas argues that the guarantee to “everyone” of the right to religious practice
“individually or in community with others” in Art. 18 “means that religious societies as
juridical persons are entitled to a human right to the exercise of their belief, enabling
them to submit an individual communication in the event this is violated”: Schabas,
Nowak’s CCPR Commentary, at 502. This position may be overstated since the relevant
language arguably simply describes the ways in which individuals, as rights-holders, may
choose to exercise their right to freedom of thought, conscience and religion.
2328
See Chapter 1.5.4 at notes 388–390. “Asylum seekers . . . must benefit from the right to
freedom of religion or belief and other human rights guarantees not only because they
enjoy the same protections as others, but because they are in a particularly vulnerable
position and often at a disadvantage in asserting these rights owing to displacement or
migration, or lack of familiarity with the host language and political, social and legal
context”: UN Human Rights Council, “Report of the Special Rapporteur on Freedom of
Religion and Belief,” UN Doc. A/HRC/34/50, Jan. 17, 2017, at [52]. Even refugees subject
to provisional or other detention enjoy the right to freedom of religion. “Persons already
subject to certain legitimate constraints, such as prisoners, continue to enjoy their rights
to manifest their religion or belief to the fullest extent compatible with the specific nature
of the constraint”: UN Human Rights Committee, “General Comment No. 22: Freedom
of Thought, Conscience or Religion” (1993), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004,
at [8].
2329
K. Partsch, “Freedom of Conscience and Expression, and Political Freedoms,” in
L. Henkin ed., The International Bill of Rights 208 (1981) (Partsch, “Freedom of
Conscience”), at 213. The decision not to provide a detailed definition may follow from
the fact that Art. 18(1) protects not simply religion, but “thought, conscience, and
religion” – arguably making irrelevant “such factors as: numbers of adherents, truth or
falsity of the relevant belief, and historical foundation of the relevant movement”: Joseph
and Castan, ICCPR, at 563. This guarantee is, however, understood to include “the
negative freedom not to belong to any such group or to live without religious confession”:
Schabas, Nowak’s CCPR Commentary, at 507.

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 718 4 r i gh t s of ref ug ees physic ally present

Art. 18(1) is absolutely clear that the actual decision about whether to hold or
not to hold a religion or belief is itself a protected interest:

The right . . . is far-reaching and profound; it encompasses freedom of

thought on all matters, personal conviction and the commitment to reli-
gion or belief, whether manifested individually or in community with
others . . . Article 18 protects theistic, non-theistic and atheistic beliefs,
as well as the right not to profess any religion or belief. The terms belief
and religion are to be broadly construed.2330

There is thus no question that the Laotian insistence on renunciation of

Christianity by converts,2331 Sudan’s prohibition of conversion from Islam to
any other faith,2332 the criminalization of the Baha’i faith in Egypt2333 and
Iran,2334 and Eritrea’s refusal to recognize other than four religions2335 are all
violations of the Civil and Political Covenant. Under the inclusive duty set by
Art. 18(1), there can also be no question of excluding from protection actions
taken within what is arguably a single “religious” tradition – for example, the
arrest by Chad of Nigerian and Senegalese members of a minority Islamic sect
on grounds of non-conformism with dominant understandings of Islam2336 –
since any variations in the scope of belief are clearly within the realm of the
broadly framed freedom of thought, conscience, and religion. The right to
believe or not to believe set by Art. 18(1) is moreover not subject to derogation,
even in time of extreme national emergency,2337 thus making clear the illegality
of Russia’s wholesale ban on adherence to the Jehovah’s Witness faith on the
basis of a vague allegation of risk following from “extremism.”2338

2330
UN Human Rights Committee, “General Comment No. 22: Freedom of Thought,
Conscience or Religion” (1993), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [1]–[2].
2331
See text at note 2259. “[T]here can be no doubt that the freedom to adopt a religion of
one’s choice includes the right to withdraw one’s membership in one religious society and
join another”: Schabas, Nowak’s CCPR Commentary, at 504.
2332
See text at note 2261. 2333 See text at note 2252. 2334 See text at note 2253.
2335
See text at note 2258. “[T]he right to freedom of religion is not contingent upon
recognition or registration by the State”: UN Human Rights Council, “Report of the
Special Rapporteur on Freedom of Religion and Belief,” UN Doc. A/HRC/34/50, Jan. 17,
2017, at [25].
2336
See text at note 2235.
2337
Civil and Political Covenant, at Art. 4(2). “[T]he internal dimension of freedom of
thought, conscience, religion or belief . . . enjoys unconditional and unqualified protec-
tion and cannot be restricted, limited, interfered with or derogated from under any
circumstances, including during times of public emergency”: UN Human Rights
Council, “Report of the Special Rapporteur on Freedom of Religion and Belief,” UN
Doc. A/HRC/34/50, Jan. 17, 2017, at [27]. See also Schabas, Nowak’s CCPR Commentary,
at 503. The freedom to “manifest one’s religion or beliefs” (as opposed to the right to have
or to adopt a religion or belief) may, however, be subject to certain limitations, pursuant
to Art. 18(3). See text at note 2373 ff.
2338
See text at note 2251.

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 4.7 f reedom of thought, conscience, and religion 719

Of particular relevance to refugees, Art. 18(2) of the Civil and Political

Covenant provides that “[n]o one shall be subject to coercion which would
impair his freedom to have or to adopt a religion or belief of his choice.”2339 This
duty was breached by Vietnam’s beating of a Montagnard leader who would not
renounce his Christianity,2340 Saudi Arabia’s lashing and execution of atheists
and agnostics,2341 Chechnya’s encouragement of attacks on women refusing to
wear headscarves,2342 and Indonesia’s refusal to intervene to prevent the forcible
eviction of several thousand members of a newly established religious commu-
nity from the farming compound in which they had settled.2343 And while
Yemen’s expulsion of a Somali refugee who had converted to Christianity was
clearly less vile than the execution it had intended for him,2344 it was still an act
manifestly in aid of a fundamental denial of religious freedom.
Illicit forms of coercion are not, however, limited to just “the use of physical
force or penal sanctions to compel believers or non-believers to adhere to their
religious beliefs and congregations, to recant their religion or belief or to con-
vert.2345 Policies or practices having the same intention or effect, such as for
example those restricting access to education, medical care, [and] employment . . .
are similarly inconsistent with article 18(2).”2346 The requirement that Malaysian
civil servants attend continuing Islamic education courses2347 is an example of a
clearly coercive policy that abridges the right to respect for differences of religious
belief. Similarly, Mozambique’s refusal to allow girls wearing face-covering veils to
attend school2348 and even the insistence in parts of Italy that crucifixes be
displayed in classrooms and that Catholic blessings be offered there2349 may
also be objected to on the grounds that they effectively coerce children to either
renounce their access to education or accept an infringement of their right to be
free from religious compulsion.2350

2339
“[T]he word ‘impair’ (‘porter atteinte’) was [chosen instead of] the word ‘deprive’”:
Schabas, Nowak’s CCPR Commentary, at 508.
2340
See text at note 2256. 2341 See text at note 2260. 2342 See text at note 2285.
2343
See text at note 2274. In this regard, “Nowak [2nd edition of CCPR Commentary at 412–413]
argues that articles 18(1) and (2) require States to prevent private coercion of another to have
or adopt a religion, belief, conscience or opinion. This is correct, as ICCPR rights have been
interpreted to have ‘horizontal effect’”: Joseph and Castan, ICCPR, at 569.
2344
See text at note 2262.
2345
Joseph and Castan caution, however, that “[f]reedom of religion does not seem to include
the right not to have one’s religion disparaged”: Joseph and Castan, ICCPR, at 566.
2346
UN Human Rights Committee, “General Comment No. 22: Freedom of Thought,
Conscience or Religion” (1993), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [5].
2347
See text at note 2292.
2348
See text at note 2284. See also Raihon Hudoyberganova v. Uzbekistan, HRC Comm. No.
931/2000, UN Doc. CCPR/C/82/D/931/2000, decided Nov. 5, 2004, at [6.2].
2349
See text at notes 2290–2291.
2350
See UN Human Rights Council, “Report of the Special Rapporteur on Freedom of
Religion and Belief,” UN Doc. A/HRC/34/50, Jan. 17, 2017, at [28]. Yet as Schabas
observes, “[t]he delineation between (impermissible) interference with freedom of

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 720 4 ri g h t s of r e f u g e es ph y s i c a l l y p r e s e nt

Coercion is a particular risk in the context of desperate refugees confined to

camps or settlements, who may feel compelled to repress their own religious
views in the face of demands for compliance with divergent beliefs advocated
by those with the power to control their access to food and other resources
essential to their survival. This duty to avoid religious coercion was infringed
when Syrian refugees in Greece were subjected to proselytization by Christian
aid workers,2351 when Bosnian refugee women in Austria were coerced to wear
headscarves by Saudi aid workers,2352 when Anglican assistance to Muslim
refugees in Lebanon was conditioned on attendance at weekly bible study
classes,2353 and when Pakistani officials acquiesced in strict enforcement of
Islamic precepts in Afghan refugee camps on its territory (albeit organized by
refugee leaders themselves).2354
The religious freedom guaranteed by the Refugee Convention was under-
stood by the drafters explicitly to include the right to “public worship,” for
example in a church or mosque.2355 As such, the Convention is violated when
refugees are subject to the formal or de facto prohibition of minority worship –
for example, the disruption of Christian services in the Indian state of Uttar
Pradesh,2356 or Angola’s closure of Islamic mosques.2357 The drafters of the
Refugee Convention made clear that the right to “public worship” inherent in
Art. 4 need not be understood to require governments to authorize the
performance by refugees of “external [religious] acts”2358 – meaning that the
Refugee Convention might not, for example, prohibit constraints on proselyt-
ization of the kind imposed by Greece,2359 Malaysia,2360 and Nepal.2361
This is an instance in which the cognate guarantee of religious freedom in
the Civil and Political Covenant now provides an answer. Beyond simply the
right to believe or not to believe, religious freedom also includes a practice
dimension. The Civil and Political Covenant protects not simply the right to
have (or not to have) a religious belief, but also the “freedom individually or

thought and conscience and the (permissible) influencing to which we are exposed daily
by the media, private advertising or State propaganda is not easily made”: Schabas,
Nowak’s CCPR Commentary, at 503. Perhaps for this reason the approach of the
European Court of Human Rights to this issue has been much more deferential to state
preferences, in particular by reliance on the margin of appreciation doctrine: European
Court of Human Rights, “Factsheet: Religious Symbols and Clothing,” Dec. 2017.
2351
See text at note 2236. 2352 See text at note 2238. 2353 See text at note 2239.
2354
See text at note 2235.
2355
Statement of Msgr. Comte of the Holy See, UN Doc. A/CONF.2/SR.30, July 20, 1951,
at 13.
2356
See text at note 2263. 2357 See text at note 2266.
2358
“There was, in fact, a difference between external acts of worship and public worship.
Public worship was not necessarily performed by external acts; while it did not exclude
external acts of worship, it did not necessarily imply them, but it was possible to bring the
two together”: Statement of Msgr. Comte of the Holy See, UN Doc. A/CONF.2/SR.30,
July 20, 1951, at 13.
2359
See text at note 2278. 2360 See text at note 2279. 2361 See text at note 2280.

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 4.7 f reedom of thought, co ns cience, and religion 721

in community with others, and in public or private, to manifest his religion or

belief in worship, observance, practice and teaching.”2362 This practice com-
ponent of religious freedom has been interpreted by the Human Rights
Committee to include, for example, the distribution of religious litera-
ture.2363 More generally the scope of protected religious practice

extends to ritual and ceremonial acts giving direct expression to belief, as well
as various practices integral to such acts, including the building of places of
worship, the use of ritual formulae and objects, the display of symbols, and
the observance of holidays and days of rest. The observance and practice of
religion or belief may include not only ceremonial acts but also such customs
as the observance of dietary regulations, the wearing of distinctive clothing or
head coverings, participation in rituals associated with certain stages of life,
. . . the use of a particular language customarily spoken by a group . . . [and]
acts integral to the conduct by religious groups of their basic affairs, such as,
inter alia, the freedom to choose their religious leaders, priests and teachers,
the freedom to establish seminaries or religious schools and the freedom to
prepare and distribute religious texts or publications.2364

Under this understanding, Greece’s past practice of refusing to allow mosques

to be built in Athens,2365 the continuing refusal of the Maldives to permit the
construction of religious buildings other than mosques,2366 the destruction of
evangelical churches in Sudan,2367 and the Bangladeshi government’s delays in
prosecuting mobs that destroyed Buddhist temples2368 are all actions in viola-
tion of the right of freedom to practice the religion of one’s choice. While less
egregious, even the Swiss constitutional amendment banning the construction
of minarets2369 is – given their spiritual significance2370 – likely also in breach

2362
Civil and Political Covenant, at Art. 18(1).
2363
See text at note 2364. In relying on the Covenant, however, the refugee would face the
possibility of the various forms of limitation deemed permissible under Art. 18(3), even if
these would not apply to constrain rights under Art. 4 of the Refugee Convention: See text
at note 2373 ff.
2364
UN Human Rights Committee, “General Comment No. 22: Freedom of Thought,
Conscience or Religion” (1993), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [4].
2365
See text at note 2272. 2366 See text at note 2271. 2367 See text at note 2273.
2368
See text at note 2264. “The threat to the right comes not only from those operating with
impunity in failed or poorly governed States; it can also emanate from laws and policies
that discriminate against religious minorities and dissenters and empower non-State
actors to ‘punish’ them without fear of reprisal”: UN Human Rights Council, “Report of
the Special Rapporteur on Freedom of Religion and Belief,” UN Doc. A/HRC/34/50, Jan.
17, 2017, at [48].
2369
See text at note 2275.
2370
“Minarets are more than just technical devices although they always fulfill an architec-
tural function. Beyond their function, they fulfill another role of even greater significance,
which is to remind man through their symbolic aspect of the spiritual principles”:
A. Kamal, The Significance of the Minaret as the Symbol of the Official Religion (1994).

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 722 4 ri g ht s o f re f u g e e s p hy s i c a l l y p r e s e n t

of the practice component of Art. 18,2371 as is the prohibition by some French

mayors on the serving in school cafeterias of alternatives to pork.2372
This is not to say that religious practice is protected in absolute terms. While
the drafters of the Refugee Convention rejected the prerogative of states to
limit religious freedom in the interest of “public morality,”2373 they affirmed, in
line with Art. 2 of the Refugee Convention,2374 that states could validly curtail
activities which refugees might argue to be of a religious nature under general
limitations required to ensure “public order.”2375 With the advent of the Civil

2371
Indeed, the UN Human Rights Committee earlier expressed its “concern[] about the
referendum initiative aimed at prohibiting the construction of minarets . . . [I]f adopted,
[the referendum] would bring the State party into non-compliance with its obligations
under the Covenant”: UN Human Rights Committee, “Concluding Observations of the
Human Rights Committee: Switzerland,” UN Doc. CCPR/C/CHE/CO/3, Nov. 3, 2009,
at [8].
2372
See text at note 2282. “Although they do not target a specific community openly . . . rules
can amount to discrimination against persons belonging to a religious minority if those
persons (often women) follow their conscience in following a particular dress code.
Similar problems may arise with regard to dietary rules”: UN Human Rights Council,
“Report of the Special Rapporteur on Freedom of Religion and Belief,” UN Doc. A/HRC/
34/50, Jan. 17, 2017, at [46].
2373
The Colombian representative urged that the religious freedom of refugees should be
subject to the requirements of “public morality”: Statement of Mr. Giraldo-Jaramillo of
Colombia, UN Doc. A/CONF.2/SR.30, July 20, 1951, at 15. This proposal was not
pursued after the intervention of the French representative, Mr. Rochefort, ibid. at 16:
“[I]t would be undesirable to introduce into the text the words . . . ‘and of public
morality,’ proposed by the Colombian representative, for clearly the practice of religion
went hand in hand with morality.”
2374
See Chapter 1.4.4.
2375
The Egyptian delegate proposed that the religious freedom of refugees should be “limited
by the requirements of national law”: Statement of Mr. Mostafa of Egypt, UN Doc. A/
CONF.2/SR.30, July 20, 1951, at 14. The representative of the Netherlands was initially
disposed to this limitation, though he preferred the language “subject to the laws and
regulations and measures adopted to maintain public order”: Statement of Baron van
Boetzelaer of the Netherlands, ibid. The Belgian representative was, however, worried
“that the phrase suggested by the Netherlands representative might prove restrictive.
Laws might be promulgated or regulations applied which would nullify the provisions of
the proposed new article. He would prefer the formula ‘subject to the requirements of
public order’ [emphasis added]”: Statement of Mr. Herment of Belgium, ibid. With the
support of the representative of the Holy See, the delegate of the Netherlands was
persuaded that the Belgian formulation – predicated not just on the invocation of public
order reasons, but on the necessity for their invocation – was indeed to be preferred:
Statement of Baron van Boetzelaer of the Netherlands, ibid. In the end, however, not even
this more cautious language was inserted into Art. 4 based on the recommendation of
Msgr. Comte of the Holy See that “it was unnecessary to include the words ‘subject to the
requirements of public order.’ Article 2 of the draft Convention already laid down that a
refugee had the particular duty of conforming with measures taken for the maintenance
of public order in the country of refuge; that provision was of a general nature, applicable
to all the succeeding articles”: ibid. at 17. Thus, only public order measures which
conform to the general requirements of Art. 2 (see Chapter 1.4.4) are lawful limitations

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 4.7 f reedom of thought, conscience, a nd religion 723

and Political Covenant, however, even the right of states to limit religious
freedom in the interest of promoting public order is now significantly
constrained.
Under the Covenant, the practice dimension of protected religion and belief
(as distinguished from the right to believe or not to believe itself) is subject to
“such limitations as are prescribed by law and are necessary to protect public
safety, order, health, or morals or the fundamental rights and freedoms of
others.”2376 Importantly, the right of states under the Covenant to limit reli-
gious practice where necessary to protect order is not the same as the broad-
ranging “concept of ordre public under French civil law, but [is] rather only [a
right] to avoid disturbances to public order in the narrow sense.”2377 Because
the drafters of the Covenant chose to deviate from precedent by avoiding
reference to the broader civil law construct of public order, the scope for
limitation is significantly reduced, as Partsch explains:

Article 18(3) permits limitations to protect “public safety, order, health or

morals.” Presumably “public” modifies “order” as well as “safety,” but here
it is used without the interpretative addition of the French term ordre
public. Indeed, here even the French text does not speak of “ordre public”
but of la protection de l’ordre. This clearly suggests that limitations on
freedom to manifest one’s religion cannot be imposed to protect ordre
public with its general connotations of national public policy, but only
where necessary to protect public order narrowly construed, i.e. to prevent
public disorder. A state whose public policy is atheism, for example,
cannot invoke Article 18(3) to suppress manifestations of religion or
beliefs.2378

As such, so long as the risk to the public is real and the steps taken are
focused and proportional, some intrusion on religious practice in the
interest of preventing serious disorder is permissible2379 – but the restor-
ation of order must not become a pretext for overly broad intrusions on
the right to religious practice. China’s vague invocation of “public
on the religious freedoms of refugees. In particular, “public order” cannot be invoked to
eliminate religious practice altogether as this would effectively render Art. 4 of no force or
effect: see Walter, “Article 4,” at 665.
2376
Civil and Political Covenant, at Art. 18(3). Critically, “[t]his means the measures must be
delineated in accessible legal instruments or decisions”: Joseph and Castan, ICCPR,
at 572.
2377
Schabas, Nowak’s CCPR Commentary, at 527.
2378
Partsch, “Freedom of Conscience,” at 212–213. See also Schabas, Nowak’s CCPR
Commentary, at 525: “[T]he ground of national security is lacking altogether, that of
public order (ordre public) was substituted with the less far-reaching ‘protection of order,’
and interference in the interest of the rights of others is permissible only to protect their
fundamental rights and freedoms.”
2379
UN Human Rights Council, “Report of the Special Rapporteur on Freedom of Religion
and Belief,” UN Doc. A/HRC/34/50, Jan. 17, 2017, at [30].

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 724 4 ri g ht s of re f u g e e s p hy s i c a l l y p r e s e n t

order”2380 to justify its harsh efforts to minimize the influence of religion

in its society is thus not within the realm of acceptable limitation.2381
While Germany’s targeted raids on mosques to search for automatic
weapons used in a terrorist attack2382 and France’s deportation of imams
inciting violence2383 would more comfortably fall within the realm of the
public order exception to religious freedom, the means employed –
Germany forcing some worshipers to lay on the ground for hours during
the raids2384 and France not just deporting the imams but closing down
the Salafist mosques altogether2385 – strayed into the realm of dispropor-
tionality and thus likely failed the necessity test.2386 Of critical importance
to refugees, “the non-discriminatory nature of the right ensures that
nationality cannot form a basis for imposing restrictions on minorities,
migrants or non-nationals.”2387
Interestingly, even as the duty simultaneously to respect obligations under
the Covenant has effectively narrowed the scope for invocation of a public
order limitation on religious practice allowed under the Refugee Convention,
the Covenant standing alone sanctions forms of limitation not permissible
under the Refugee Convention2388 – specifically those based on public safety,
health, and respect for the fundamental rights and freedom of others.2389 The
2380
See text at notes 2247–2248. See e.g. the defense offered by the Chinese government to the
Special Rapporteur on Religious Intolerance. “On 23 August 1999, Zhang Rongliang,
Feng Jianguo, Wang Xincai and some other key members of cult organizations, flaunting
the banner of ‘unification of churches,’ called together some people to set up a new cult
organization in Tanghe county, Henan Province, and disturbed the public order there.
The local public security department, acting on the local people’s reports, banned their
illegal activities according to law”: “Report of the Special Rapporteur on the Elimination
of All Forms of Intolerance and of Discrimination Based on Religion or Belief,” UN Doc.
E/CN.4/2001/63, Feb. 13, 2001, at [150].
2381
“The limitation clause contains an exhaustive list of all grounds for limitation”: Schabas,
Nowak’s CCPR Commentary, at 524.
2382
See text at note 2265. 2383 See text at note 2268. 2384 See note 2265.
2385
See text at note 2367.
2386
“[T]he limiting measures must be ‘necessary’ to achieve the relevant purpose. This means
that the law should be ‘proportionate’ to the specific need upon which it is predicated”:
Joseph and Castan, ICCPR, at 573. See generally the discussion of “necessity” in
Chapter 3.4.
2387
UN Human Rights Council, “Report of the Special Rapporteur on Freedom of Religion
and Belief,” UN Doc. A/HRC/34/50, Jan. 17, 2017, at [30].
2388
Importantly, however, “national security” is not among the sanctioned reasons for
limiting the right to religious freedom: UN Human Rights Committee, “General
Comment No. 22: Freedom of Thought, Conscience or Religion” (1993), UN Doc.
HRI/GEN/1/Rev.7, May 12, 2004, at [8].
2389
The Human Rights Committee has insisted, however, that “[i]n interpreting the scope of
permissible limitation clauses, States parties should proceed from the need to protect the
rights guaranteed under the Covenant, including the right to equality and non-
discrimination on all grounds specified in articles 2, 3 and 26. Limitations imposed
must be established by law and must not be applied in a manner that would vitiate the

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 4.7 f reedom of thought, conscience, a nd religion 725

“safety” branch of this principle would, for example, likely justify India’s
demolition of small shrines built in places such as the middle of roads that
compromised public safety.2390 The importance of ensuring “health” would be
a sound basis for Zambia’s decision to impose constraints on church services
and other public gatherings during a cholera epidemic2391 and Laos’ refusal to
allow Animist practices including animal sacrifice, the use of opium, and the
killing of twins.2392 And respect for “the fundamental rights and freedoms of
others”2393 might be a basis to approve of both Canada’s former rule requiring
that face-covering attire be removed when an oath of citizenship is taken in
order to ensure that the oath is in fact properly recited2394 and Denmark’s
prohibition of holding particular religious services in the shared communal
areas of asylum centers2395 (at least so long as a more private alternative space
is provided).
Of greater concern, the Covenant seems also to have validated one form of
limitation specifically rejected by the drafters of the Refugee Convention –
namely, restrictions based on “public morals.” At first glance, then, the expul-
sion by Saudi Arabia of the Indian who distributed a Christian videotape
contrary to host country “values,”2396 and even the rigid enforcement of an

rights guaranteed in article 18. The Committee observes that paragraph 3 of article 18 is
to be strictly interpreted”: ibid. Moreover, “[t]he fact that a religion is recognized as a state
religion or that it is established as official or traditional or that its followers comprise the
majority of the population, shall not result in any impairment of the enjoyment of any of
the rights under the Covenant, including articles 18 and 27, nor in any discrimination
against adherents to other religions or non-believers”: ibid. at [9].
2390
See text at note 2270. The public safety limitation could also justify a constraint on
religious ceremonies which, if conducted, would engender a hostile confrontation:
Schabas, Nowak’s CCPR Commentary, at 526.
2391
See text at note 2269. The public health limitation might include, for example, the right to
require persons to be vaccinated against contagious diseases, religious convictions not-
withstanding: ibid. at 527.
2392
See text at note 2286. See e.g. Prince v. South Africa, HRC Comm. No. 1474/2006, UN
Doc. CCPR/C/91/D/1474/2006, decided Oct. 31, 2007, at [7.2]–[7.3].
2393
“Thus, States parties may . . . limit freedom of religion for the protection of one of the
other rights of others guaranteed in the two Covenants”: Schabas, Nowak’s CCPR
Commentary, at 528. The view that limitation is also possible to limit religion based
upon the need to uphold “those rights of others that have the character of fundamental
rights and freedoms in [that country’s] legal system” (ibid.) is, however, questionable
since as Schabas himself insists, there is a need for “an international minimum standard
for human rights”: ibid.
2394
See text at note 2244. See e.g. Singh v. France, HRC Comm. No. 1876/2000, UN Doc.
CCPR/C/102/D/1876/2009, decided July 22, 2011, at [8.4], in which a violation was found
in the case of a Sikh forced to remove his turban for a residence permit photo because,
inter alia, the State could not show how this would aid its ability to identify the applicant
and would not be simply a one-time requirement given the continuing use of the identity
card. Neither of these concerns applies to a policy intended to ensure that an oath is
properly recited on a single occasion.
2395
See text at note 2240. 2396 See text at note 2257.

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extreme version of Islam by the Taliban in Afghanistan,2397 might appear to be

consistent with the understanding of religious freedom codified in the
Covenant. There are, however, two answers to this dilemma.
First, the potential risk stemming from the prerogative of states to limit
religious freedom on grounds of public morals under the Covenant is in fact
less serious than the treaty’s broad language might suggest.2398 As the
Human Rights Committee has explained, “the concept of morals derives
from many social, philosophical and religious traditions: consequently,
limitations on the freedom to manifest a religion or belief for the purpose
of protecting morals must be based on principles not deriving from a single
tradition.”2399 This criterion makes Saudi Arabia’s seizure of the Christian
videotape,2400 grounded in the promotion of only an Islamic understanding
of morals, not justified; it also prohibits Pakistan’s reliance on collective
morality to give legitimacy to its abuse of blasphemy laws to target the
Ahmadis, a minority Muslim sect.2401 A limitation for reasons of morals
must also be “directly related and proportionate to the specific need on
which [it is] predicated.”2402 Thus, the decision of the Taliban in
Afghanistan massively to violate the human rights of women in pursuit of
its vision of a morally defined society2403 – even if had not been (impermis-
sibly) based on a single vision of morality – could not in any event have been
justified.

2397
See text at note 2246.
2398
“A Soviet proposal to make freedom of thought and religion subject to a mere formal legal
proviso in accordance with ‘the dictates of public morality’ was defeated by the [Human
Rights Commission] by a vote of 9:4, with 3 abstentions. Instead, agreement was reached
on a limitation clause in Art. 18(3) listing all reasons for restriction. It relates only to
public freedom of religion and belief and is narrower than comparable limitations clauses
in the Covenant”: Schabas, Nowak’s CCPR Commentary, at 501.
2399
UN Human Rights Committee, “General Comment No. 22: Freedom of Thought,
Conscience or Religion” (1993), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [8].
Thus, “‘public morals’ measures should reflect a pluralistic view of society, rather than
a single religious culture”: Joseph and Castan, ICCPR, at 577.
2400
See text at note 2260.
2401
See text at note 2255. More specifically, “[p]rohibitions of displays of lack of respect for a
religion or other belief system, including blasphemy laws, are incompatible with the
Covenant, except in the specific circumstances envisaged in article 20, paragraph 2, of the
Covenant [involving advocacy of hatred] . . . Thus, for instance, it would be impermis-
sible for any such laws to discriminate in favour of or against one or certain religions or
belief systems, or their adherents over another, or religious believers over non-believers.
Nor would it be permissible for such prohibitions to be used to prevent or punish
criticism of religious leaders or commentary on religious doctrine and tenets of faith”:
UN Human Rights Committee, “General Comment No. 34: Article 19: Freedoms of
Opinion and Expression,” UN Doc. CCPR/C/GC/34, Sept. 12, 2011, at [48].
2402
UN Human Rights Committee, “General Comment No. 22: Freedom of Thought,
Conscience or Religion” (1993), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [8].
2403
See text at note 2246.

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 4.7 f reedom of thought, conscience, a nd religion 727

Second, at least to the extent that the form of religious freedom at issue falls
also within the arguably narrower ambit of Art. 4 of the Refugee Convention, a
refugee can avoid the impact of the Covenant’s public morality limitations on
religious freedom by invoking the Refugee Convention’s right to practice one’s
religion which, as explained above, does not admit of limitation for reasons of
morals.2404 This would be an answer, for example, if the French policy against
the wearing of modest, religiously required swimming attire2405 were to be
applied against a refugee woman. Even if subject to limitation under the
Covenant, a refugee’s right to practice her religion, including by the wearing
of sanctioned attire, is guaranteed by the Refugee Convention.
The most specific form of religious liberty protected by the Refugee
Convention is the “freedom [of refugees] as regards the religious education
of their children.”2406 This right, presented to the Conference of
Plenipotentiaries as the right of refugees “to ensure that their children are
taught the religion they profess,”2407 was the subject of substantial debate.
The main concern of states, in line with their view that their principled
responsibility to facilitate the religious freedom of refugees should not entail
a duty to fund such activities,2408 was that the phrasing proposed “implied
that the State would be committed to providing at its own expense facilities
for teaching the religion of the refugee.”2409 To avoid this interpretation, it
was agreed that the only obligation of states was “to grant refugees . . .
freedom to ensure that their children were taught in the religion they
professed.”2410 The duty was “permissive on [refugee] parents and not
mandatory on governments.”2411 The implications of this understanding
of the right to freedom of religious education are perhaps best understood in
relation to a description of the Swedish approach to education, as given by
that country’s representative to the Conference of Plenipotentiaries:

Primary education was compulsory in Sweden, and parents who could not
afford to send their children to a private school were obliged to send them
to a State school, where religious instruction was given according to the
Lutheran faith. If a refugee belonged to a church other than the Lutheran

2404
See text at note 2373. A refugee relying on the Covenant’s protection of the right to
manifest religion or beliefs could, however, face restrictions prescribed by law and shown
to be necessary “to protect public safety, order, health, or the fundamental rights and
freedoms of others”: See text at note 2376 ff.
2405
See text at note 2283. 2406 Refugee Convention, at Art. 4.
2407
UN Doc. A/CONF.2/94. 2408 See text at note 2315.
2409
Statement of Mr. Fritzer of Austria, UN Doc. A/CONF.2/SR.30, July 20, 1951, at 14–15.
2410
Statement of Mr. van Heuven Goedhart of UNHCR, ibid. at 15.
2411
Statement of Mr. Rees of the Commission of the Churches on International Affairs, ibid.
at 17. See also Statements of Mr. Herment of Belgium and Mr. Fritzer of Austria, ibid.
at 15.

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 728 4 ri g ht s of re f u g e e s p hy s i c a l l y p r e s e n t

church, he had full freedom to withdraw his children from the classes in
religious instruction.2412

While this drafting history thus suggests a purely permissive approach to Art. 4 –
ensuring that parents are free on the same terms as nationals (if they have the
resources) to enrol their children in schools which provide their preferred form
of religious instruction and, if they are not able to fund education of that kind, to
withdraw their children from any non-preferred form of religious instruction
provided within the public school system – Walter correctly observes that the
national treatment standard governing Art. 4 actually requires more:
Where [religious] education is offered in State schools, refugee children
have the same right to access as all other children. Where no religious
education in the specific religion of the refugee children is offered, the
State would be under an obligation to introduce such education only
under the conditions in which it would have to provide for such education
under its national law in general.2413

In addition, educational freedoms under the Covenant on Economic,

Social and Cultural Rights are now understood to include the right of parents
and guardians “to ensure the religious and moral education of their children
in conformity with their own convictions [emphasis added].”2414 And while
the right to religious education set by Art. 18(4) of the Civil and Political
Covenant provides for duties comparable to those under the Refugee
2412
Statement of Mr. Petren of Sweden, ibid. at 12. Mr. Petren went on to say that atheist
parents did not enjoy the same right to withdraw their children from mandatory
Lutheran education classes, a position now clearly inconsistent with the accepted position
that freedom of religion includes the right to hold or not to hold particular convictions.
See UN Human Rights Committee, “General Comment No. 22: Freedom of Thought,
Conscience or Religion” (1993), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [2], [6]:
“Article 18 protects theistic, non-theistic and atheistic beliefs, as well as the right not to
profess any religion or belief.”
2413
Walter, “Article 4,” at 666. This result would in any event now be compelled by the duty of
equal protection of the law under Art. 26 of the Civil and Political Covenant: see
Chapter 1.5.5.
2414
Economic, Social and Cultural Covenant, at Art. 13(3). Under this provision, “[t]he State
. . . is obliged merely to refrain from placing obstacles in the way of parents wishing to
exercise this right”: Craven, ICESCR Commentary, at 110. In its General Comment on the
right to education, the Committee on Economic, Social and Cultural Rights noted that
“[t]he second element of article 13(3) is the liberty of parents and guardians to choose
other than public schools for their children, provided the schools conform to ‘such
minimum educational standards as may be laid down or approved by the State.’ This
has to be read with the complementary provision, article 13(4), which affirms ‘the liberty
of individuals and bodies to establish and direct educational institutions,’ provided the
institutions conform to the educational objectives set out in article 13(1) and certain
minimum standards”: UN Committee on Economic, Social and Cultural Rights, “General
Comment No. 13: The Right to Education” (1999), UN Doc. HRI/GEN/1/Rev.7, May 12,
2004, at [29].

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 4.7 f r e e d o m o f t h o ug h t , co n s ci e nc e, a nd religio n 729

Convention,2415 the Human Rights Committee has determined also that

states may not discriminate in the funding of religious education2416 – a
clear and important advance on the right as guaranteed in the Refugee
Convention.
Taking account of these obligations, the right to religious education is
clearly violated by Uzbekistan’s denial to parents of the right to have a say in
the moral and religious education of their children,2417 as well as by Turkey’s
insistence that only Christians and Jews may be exempted from Islamic
religious instruction.2418 As the UN Special Rapporteur on Religious
Intolerance has noted, even a “de facto monopoly”2419 of religiously oriented
education may impair this freedom – for example, the predominance of
Mennonite and Catholic schools in parts of Paraguay.2420 On the other
hand, while Norway’s amended mandatory religion curriculum emphasizes
Christianity for reasons of historical significance, the fact that the class must
be taught in a way that is “objective, critical and pluralistic . . . [and] not
involve preaching or religious practice”2421 means that it probably complies

2415
In particular, “[t]he Covenant does not oblige States parties to fund private or religious
schools”: Schabas, Nowak’s CCPR Commentary, at 533. In respect to Art. 18(4) of the
Civil and Political Covenant, the Human Rights Committee has observed simply that
“[t]he liberty of parents or legal guardians to ensure that their children receive a religious
and moral education in conformity with their own convictions . . . is related to the
guarantees of the freedom to teach a religion or belief stated in article 18(1)”: UN
Human Rights Committee, “General Comment No. 22: Freedom of Thought,
Conscience or Religion” (1993), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [6].
Indeed, the Convention on the Rights of the Child may actually have narrowed the
scope of the parental prerogative, as the parental role is now conceived as auxiliary to the
primary right of children to decide on the nature of their own religious or moral
upbringing. “States Parties shall respect the right of the child to freedom of thought,
conscience and religion. States Parties shall respect the rights and duties of the parents
and, when applicable, legal guardians, to provide direction to the child in the exercise of
his or her right in a manner consistent with the evolving capacities of the child”: Rights of
the Child Convention, at Art. 14(1)–(2).
2416
“[T]he Committee observes that the Covenant does not oblige States parties to fund
schools which are established on a religious basis. However, if a State party chooses to
provide public funding to religious schools, it should make this funding available without
discrimination. This means that providing funding for the schools of one religious group
and not for another must be based on reasonable and objective criteria. In the instant
case, the Committee concludes that the material before it does not show that the
differential treatment between the Roman Catholic faith and the author’s religious
denomination is based on such criteria. Consequently, there has been a violation of the
author’s rights under article 26 of the Covenant to equal and effective protection against
discrimination”: Waldman v. Canada, HRC Comm. No. 694/1996, UN Doc. CCPR/C/
67/D/694/1996, decided Nov. 3, 1999, at [10.6].
2417
See text at note 2287. 2418 See text at note 2289.
2419
H. Bielefeldt, “Report of the Special Rapporteur on Freedom of Religion or Belief on his
Mission to Paraguay,” UN Doc. A/HRC/19/60/Add.1, Jan. 26, 2012, at [40].
2420
See text at note 2293. 2421 See text at note 2288.

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 730 4 ri g ht s of re f u g e e s p hy s i c a l l y p r e s e n t

with legal obligations.2422 Nor is there likely a breach in China’s decision to

ban Christian “summer camps” – including Sunday schools2423 – since this
could reasonably be deemed too peripheral to amount to an interference with
the right to religious education, at least insofar as parents have alternative
means to provide their children with instruction in their religious values.

4.8 Education
The importance with which refugees view education is often evident during
even their very earliest days in an asylum country.2424 Anxious for their
children’s studies to resume before knowledge is lost, or simply to restore a
sense of purpose in a situation otherwise without hope, refugees frequently
establish classes for their children immediately upon reaching safety, using
whatever resources are available to them.2425 Whether refugees anticipate
repatriation or resettlement, resumption of the education of their children is

2422
While finding fault with the unduly cumbersome process for securing exemption from
the Norwegian curriculum, the Human Rights Committee observed as a general matter
that “[t]he scope of article 18 covers not only protection of traditional religions, but also
philosophies of life, such as those held by the authors. Instruction in religion and ethics
may in the Committee’s view be in compliance with article 18, if carried out under the
terms expressed in the Committee’s General Comment No. 22”: Unn and Ben Leirvåg v.
Norway, HRC Comm. No. 1155/2003, UN Doc. CCPR/C/82/D/1155/2003, decided Nov.
3, 2004, at [14.2]. In that decision, the Committee recalled its earlier finding that there is
no conflict with Art. 18(4) if instruction is “given in a neutral and objective way and
respects the convictions of parents and guardians who do not believe in any religion”:
Erkki Hartikainen v. Finland, HRC Comm. No. 40/1978, UN Doc. CCPR/C/OP/1,
decided Apr. 9, 1981, at [10.4]. Joseph and Castan thus conclude that “[c]ompulsory
religious or moral education does not conflict with article 18(4) if it provides for a
pluralistic depiction of religion”: Joseph and Castan, ICCPR, at 586.
2423
See text at note 2281.
2424
International Extension College and World University Service (UK), “Refugee
Education: The Case for International Action” (1986) (IEC and WUS, “Refugee
Education”), at 8.
2425
“Gathering primary school age children together and organizing some kind of educa-
tional activity for them immediately improves the morale of the community. It also gives
parents, often single parents, the relief and time they need to carry out their other urgent
responsibilities. Such ‘schools’ may be in tents or under trees or in any form of shelter, at
least to start with”: ibid. at 13. This may be the case particularly for refugees restricted to
camps. “From the start, [Burmese refugees in Thailand] were proactive in setting up their
own schools and the accompanying structures to administer them. All the teachers,
principals, caretakers, teacher trainers, school committee members and camp education
committee members are drawn from the community. This was the result of the refugees’
belief in the importance of education as well as the Thai government’s restrictions on
foreigners living in the camps. As a result, there is a high level of community ownership
over the education system”: S. Oh, “Education in Refugee Camps in Thailand: Policy,
Practice and Paucity,” Background paper prepared for the Education for All Global
Monitoring Report 2011, at 5.

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 4.8 e duca tion 731

also critical to providing them with a sense of continuity and to enabling the
children to retain their cultural identity, which may be challenged by life in the
host country. But while the importance of refugee education is nearly univer-
sally recognized, only 61 percent of refugee children attend primary school,
compared to 92 percent of children globally.2426
The inability of many refugee children to access education is perhaps not
surprising in a world where the vast majority of refugees are the responsibility
of its poorest states.2427 Unable in many cases to meet the educational needs of
their own citizens, these countries simply lack the resources to provide
adequate educational opportunities for refugees, whether within the national
school system or through separate institutions. Cambodia, for example, has
taken the view that because of its lack of resources it must prioritize the
education of its own children over that of urban refugee children living in
and around Phnom Penh.2428 Malaysia does not provide access to public
education to Rohingya and other refugees; the NGO-run “learning centers”
intended to serve as a parallel system are unaccredited and offer only primary
education.2429 In other cases, lack of access to education may result from legal
or practical barriers. Until 2016, for instance, Jordanian regulations barred
enrollment of students three or more years older than those at their grade level,
posing a significant obstacle for refugee children whose education had been
interrupted during flight.2430 And generally applicable fees for admission,

2426
UNHCR, “Four Million Refugee Children go without Schooling,” Aug. 29, 2018. Indeed,
“[a]s refugee children get older, this gap grows. Nearly two thirds of refugee children who
go to primary school do not make it to secondary school. In total, 23 per cent of refugee
children attend secondary school, compared to 84 per cent of children globally”: ibid.
2427
“80 per cent of all refugees are hosted by countries of the South, which shows that a
disproportionate burden is carried by those least able to afford it”: V. Muñoz, “The Right
to Education of Migrants, Refugees and Asylum-Seekers: Report of the Special
Rapporteur on the Right to Education,” UN Doc. A/HRC/14/25, Apr. 16, 2010, at [16].
2428
“Public education is also inaccessible to refugee children. The UNHCR has been pushing
for more rights for refugees though Cambodia, being a very poor country, prioritizes its
own citizens’ economic betterment over the enforcement of international treaty obliga-
tions relating to immigrants and asylum-seekers”: “Cambodia: Precarious Position of
Refugees,” (2002) 114 JRS Dispatches (June 28, 2002).
2429
D. Sullivan, “Still Adrift: Failure to Protect Rohingya in Malaysia and Thailand,” Nov.
2016, at 7–8; see also Asia Pacific Refugee Rights Network, “Malaysia,” Mar. 2017, at 2.
2430
Human Rights Watch, “‘We’re Afraid for their Future’: Barriers to Education for Syrian
Refugee Children in Jordan,” Aug. 2016, at 37–40. “With donor support, in the fall of
2016 Jordan plans to establish an accredited non-formal curriculum for up to 25,000
Syrian children ages 8 to 12 who would otherwise have been barred by the ‘three-year
rule’; for children ages 13 and older, the Education Ministry has accredited a nongovern-
mental group to provide non-formal education. While donors are supporting the group
to expand its program, access remains limited, and it has reached only a few thousand
Syrian children since the Syria conflict began”: Human Rights Watch, “Education for
Syrian Refugee Children: What Donors and Host Countries Should Do,” Sept. 16, 2016.

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 732 4 r i gh t s of ref ug ees physic ally present

tuition, and school uniforms have kept many urban refugees in Kampala from
attending primary school.2431
Education is sometimes denied as a means of discouraging refugee flows, or
encouraging premature repatriation. During the mid-1990s, for example, the
Iranian government withdrew access to education from Afghan refugees,
which had formerly been provided for free on the same terms as for nation-
als.2432 General policies of withholding access to education from undocu-
mented Afghans, charging tuition for admission to those who were
documented, and shutting down Afghan schools it refused to license continued
in various forms until 2015,2433 when the Iranian Supreme Leader issued a
decree ordering schools to admit all Afghan children.2434 Similarly, the Thai
government was initially reluctant to approve any educational programs for
Cambodian refugees in order “to prevent the institutionalization and perpetu-
ation of the camps and the attendant likelihood of attracting more refugees
from Cambodia.”2435 And South Africa has criminalized the provision of
instruction to any “illegal foreigner,”2436 a policy that has forced the return
home of Zimbabweans and others the government does not recognize as
refugees.2437
2431
“Of school-aged children and youth not enrolled in formal education, 82.7% reported the
primary reason to be a lack of financial resources. Focus groups corroborated this finding,
citing the high cost of living in Kampala, tuition fees, uniform costs, and other fees
associated with enrolment have led to such low enrolment”: D. Boze, “Free Yet
Unaffordable: The Figures behind Low Refugee Enrolment in Kampala,” Urban
Refugees, Dec. 15, 2015.
2432
“In the 1980s, most Afghans in Iran were able to obtain residence and work permits that
effectively entitled them to the same entitlements, including free education, health care,
and food subsidies, as Iranian citizens. By the mid-nineties, Iranian policies aimed at
stemming the flow of Afghan refugees and asylum seekers and encouraging repatriation
had made many Afghan migrants undocumented, which in practice cut off their access to
education, health care, and government subsidies. By 1998, UN figures indicated that
only a third of Afghan children in Iran were enrolled in Iranian public schools”: Human
Rights Watch, “Unwelcome Guests: Iran’s Violation of Afghan Refugee and Migrant
Rights,” Nov. 2013, at 62.
2433
Ibid. at 61–66.
2434
F. Bezhan, “Class Act: Iranians Campaign to Allow Afghan Refugee Kids into School,”
Radio Free Europe, Sept. 2, 2017.
2435
P. Gyallay-Pap, “Reclaiming a Shattered Past: Education for the Displaced Khmer in
Thailand,” (1989) 2(2) Journal of Refugee Studies 257 (Gyallay-Pap, “Shattered Past”),
at 265.
2436
J. Crush and G. Tawodzera, “Right to the Classroom: Educational Barriers for
Zimbabweans in South Africa,” Southern African Migration Programme, Migration
Policy Series No. 56 (2011), at 6–7.
2437
Ibid. at 9–10, 21. Thus, in addition to the general requirement that national and non-
national children alike produce birth certificates and immunization records in order to
access enrollment, Zimbabweans are subject to the same condition as other undocu-
mented migrants – that “[p]ersons classified as illegal aliens must, when they apply for
admission [to public schools] for their children or for themselves, show evidence that

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 4.8 e duca tio n 733

When support for refugee education is provided, it often comes only after
considerable delay,2438 and is frequently inadequate.2439 While refugee com-
munities have at times proved capable of organizing their own education
programs almost immediately upon reaching refuge,2440 gaps in support
from host states and aid agencies sometimes result in inadequate materials
and teacher training. For example, Thailand’s insistence that only local and
Burmese teachers may work in refugee camps has resulted in a scarcity of
trained instructors and the assignment of multiple grade levels to a single
classroom.2441 Shortages of qualified teachers for Mozambican refugees in
Malawi prevented teacher–student ratios from improving beyond 1:100.2442

they have applied to the Department of Home Affairs to legalise their stay in the country”:
ibid. at 7, 12–14. Furthermore, even if refugee children could travel home to obtain a birth
certificate, “they risk being declared ‘undesirable’ upon exiting the country with no
permit – so they are almost trapped in a Catch-22 situation”: M. Ncube, “Why South
Africa’s Undocumented Teens are Dropping Out of School,” Refugees Deeply, Mar. 7,
2018.
2438
It is reported that education is often a low priority among organizations assisting
refugees, considered a luxury by agencies that “optimistically ignore the fact that most
short-term refugee situations become long term”: IEC and WUS, “Refugee Education,” at
8. As a result, “[t]here are no examples where education has been provided to refugees in
the early stage of their exile, along with emergency relief services, except where refugees
themselves have mobilized what limited resources they have to set up schools and literacy
classes”: ibid. at 36.
2439
“We are now reaching the stage where some budget restrictions may simply prove too
severe to sustain . . . In the educational sector, substantial cutbacks in the construction of
new facilities and provision of materials will mean that many refugee children are denied
access to schooling”: Forbes Martin, Refugee Women, at 46, quoting from the UNHCR
Head of Program Management Services.
2440
Refugee-initiated schools were established, for example, in Djibouti, Thailand, Pakistan,
and Sudan. “The spontaneity of such refugee self-help projects makes for speed . . . They
may have very few or no resources, but they are unhampered by bureaucratic delays and
they thus provide the very first community development activities and the first injections
of hope in the future which are so vital in the emergency stages of a refugee crisis”: IEC
and WUS, “Refugee Education,” at 13.
2441
“The Thai government insists that expatriate staff members do not work as teachers in the
camps. The unanticipated benefit of this policy is that there is a high degree of community
ownership over the education system. However, this has meant that teacher training is
not as extensive and effective as it could be. [NGO ZOA Refugee Care Thailand’s]
external teacher trainers travel to all seven camps throughout the year to train teachers
and camp-based teacher trainers. However, this is not enough, given the high rates of
teacher turnover and the low subject and skill base of the newer teachers. Further, there
are not enough qualified people in camp to work as camp-based teacher trainers”: S. Oh,
“Education in Refugee Camps in Thailand: Policy, Practice and Paucity,” Background
paper prepared for the Education for All Global Monitoring Report 2011, at 8. See also
C. Johnston, “A Model of Education in Hard-to-Reach Areas: The KTWG Model” (2016),
at 44.
2442
This ratio was considered a great success, and was only achieved after the hiring of
hundreds of additional teachers: D. Tolfree, “Refugee Children in Malawi: A Study of the
Implementation of the UNHCR Guidelines on Refugee Children” (1991), at 20–21.

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South Sudanese refugees in Uganda, restricted to their camp’s makeshift

school, suffered particularly from a lack of teaching supplies and basic equip-
ment such as notebooks and pencils. A general shortage of both schools and
teachers has moreover given rise to overcrowded classrooms, with some
reporting a ratio of one teacher per 200 students.2443
The nature of refugee education provided in parts of the global South is also
sometimes contentious. Whereas UNHCR once favored “education for repat-
riation,” with the curriculum to be based on that in the refugees’ country of
origin,2444 the agency has more recently advocated the opposite approach
where the prospect of returning home is diminished.2445 The shift in policy
was adopted, for example, for Sudanese refugees in Chad when it became
apparent from the ongoing conflict in Darfur that refugees would not soon be
repatriating.2446 But conflict may arise between the refugee community and
host government when there is a divergence of views about whether repatri-
ation, integration, or resettlement is the most appropriate goal. For instance,
the Tanzanian government of the mid-1980s believed that it made most sense
to attempt to integrate Burundian refugees into the Tanzanian national cul-
ture. The priority of the refugees themselves, however, was to be prepared for
repatriation to Burundi.2447 Differences in approach to education can also arise

2443
“In Uganda’s Refugee Schools, Books and Pencils are Luxuries,” Washington Post, June
14, 2017.
2444
A. Avery, “Education: The Least of UNHCR’s Priorities? UNHCR Responds,” [Apr.
1996] Refugee Participation Network (Avery, “UNHCR Responds”). Particular import-
ance was given to preservation by children of facility in the language of the country of
origin: UNHCR, “Refugee Children: Guidelines on Protection and Care” (1994), at 113.
2445
“Use of country of asylum curriculum provides access to accredited, supervised and
accountable education services. It is generally the most sustainable and protective option
in the medium to long term, ensuring safe access to examinations and certification, access
to teaching and learning materials, quality assurance and improved access to national
education services including options to continue education at higher levels”: UNHCR,
“Issue Brief 3: Curriculum Choices in Refugee Settings,” July 2015, at 2. These consider-
ations led the agency to conclude that the advantages associated with national systems
“outweigh the benefits of using the country of origin curriculum”: ibid.
2446
“Although the approach of using the Sudanese curriculum seemed like the most logical
approach in 2003 when the camps were established, time proved that it was no longer the
most efficient or sustainable for 2012 and beyond . . . Refugee teachers did not have access
to qualified teacher training, materials were expensive and difficult to procure, and access
to examinations was problematic, leading to many protection and financial concerns. In
addition, UNHCR was unable to tap into development funding for education, nor to
benefit from the deployment of qualified teachers, training or the distribution of mater-
ials by the [Ministry of Education]. The lack of quality control and proper oversight of
education delivered in the camps resulted in a parallel education system offering ques-
tionable quality education that was effectively isolated from the services and resources
available in Chad”: ibid. at 5.
2447
A. Ayok Chol, “Reflections on the Policies and Practices of Refugee Education in
Tanzania,” paper presented at the University of Dar es Salaam, Tanzania, July 29, 1987.

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 4.8 e duca tio n 735

between refugees and international agencies. The curriculum developed by

UNBRO for Cambodian refugees in the Thai border camps, for example, was
based on Western methodology and Western industrialized standards, without
reference to Khmer Buddhist culture and their traditional agrarian lifestyle. As
Gyallay-Pap observed,

The question [is] . . . whether an education system based largely on

western industrial development norms, with its emphasis on productivity
and consumption (or “raising the standard of living”), is appropriate for a
people who have steadfastly remained agriculturalists attached to the land
and traditional culture. The disparity between the modern Khmer school
curriculum and the realities of Khmer culture and society is seen in the
near absence of artistic, religious, and other traditional cultural subjects
through which the Khmer have traditionally self-understood
themselves.2448

More recently, a review of the curriculum in the Kenyan Baraka school for
Sudanese refugees found that the academic-oriented focus was ill-suited for
children in need of practical knowledge and survival skills, whether in Kenya
or Sudan.2449
In developed countries, in contrast, recognized refugee children are nearly
universally integrated into the national school systems of the asylum state.2450
But until refugee status is formally recognized, refugee children may face
barriers to accessing education. For example, refugee children held in Greek
First Reception and Identification Centers (hotspots) are not permitted to
attend regular courses pending the processing of their claims;2451 children
arriving in Hungary are similarly restricted to transit zones in which formal
classes are unavailable.2452 Under the British government’s policy in place
since 2002, children of refugee claimants are not entitled to attend local
schools.2453 Nor are classes necessarily available in the accommodation centers
2448
Gyallay-Pap, “Shattered Past,” at 273.
2449
L. Karanja, “The Educational Pursuits and Obstacles for Urban Refugee Students in
Kenya,” (2010) 1(3) International Journal for Cross-Disciplinary Subjects in Education
147, at 153.
2450
In the European Union it is now agreed that “[m]ember states shall grant full access to the
education system to all minors granted international protection, under the same condi-
tions as nationals”: Council Directive on minimum standards for the qualification and
status of third country nationals or stateless persons as refugees or as persons who
otherwise need international protection and the content of the protection granted,
Doc. 2011/95/EU (Dec. 13, 2011) (EU Qualification Directive (recast)), at Art. 27(1).
2451
European Union Agency for Fundamental Rights, “Current Migration Situation in the
EU: Education,” May 2017, at 8.
2452
Only unaccompanied children under the age of fourteen are eligible to attend local public
schools: ibid. at 8.
2453
“For the purposes of section 13 of the Education Act 1996 (c. 56) (general responsibility of
local education authority) a resident of an accommodation centre shall not be treated as

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 736 4 ri g ht s o f re f u g e e s p hy s i c a l l y p r e s e n t

that house them; to the contrary, some children are reported to wait up to five
months to attend regular classes.2454 Refugees and refugee claimants distrib-
uted across German Länder have faced even longer waits: those assigned to
large cities have reported delays of up to one year for placement in public
schools,2455 and some local schools are entitled to decide whether to accept the
children of refugee claimants into their programs.2456 In principle, however,
the European Union’s Reception Directive of 2013 requires that the minor
children of refugee applicants receive education “under similar conditions as
[the member state’s] own nationals” beginning not later than three months
after the filing of an application for protection by either the child or his or her
parents.2457
Another contentious issue is the language of instruction for refugee chil-
dren. Whereas most jurisdictions in Canada2458 and some European states,
including Denmark and Sweden,2459 do provide mother tongue instruction to

part of the population of a local education authority’s area”: UK Nationality, Immigration

and Asylum Act 2002, c. 41, at s. 36(1).
2454
Even those awaiting dispersal face barriers accessing education within their initial
accommodation centers. According to one Cardiff council spokesperson, “[t]he Home
Office is responsible for initial accommodation centres, including the one in Cardiff . . .
There is no legal requirement for local authorities to provide education for children
waiting for dispersal from initial accommodation by the Home Office”: D. Taylor,
“Children Seeking Asylum in UK Denied Access to Education,” Guardian, Feb. 2, 2016.
2455
European Union Agency for Fundamental Rights, “Current Migration Situation in the
EU: Education,” May 2017, at 10.
2456
Ibid. at 8. 2457 EU Reception Directive (recast), at Art. 14(1)–(2).
2458
Initially about half of the provinces of Canada (Quebec, Ontario, Manitoba,
Saskatchewan, and Alberta) supported heritage language programs, to which refugee
children had access: Canadian Education Association, “Heritage Language Programs in
Canadian School Boards” (1991). In 2016, however, the Ministry of Education refused to
renew a grant it had provided for twenty-five years to Heritage schools in Saskatchewan.
“The [Saskatchewan Organization for Heritage Languages] is questioning the timing of
the decision, when Canada is bringing in more refugees. It said the heritage classes are
crucial support for newcomers searching for a way to feel at home in their new surround-
ings . . . [Minister of Education Don Morgan] said the heritage language and schools
make the province a ‘culturally rich and diverse place,’ but said the decision to cut
funding was made for economic reasons”: “Funding Pulled from Heritage Language
Schools in Saskatchewan,” CBC News, Mar. 6, 2016.
2459
“In Sweden, refugees and asylum-seekers aged from 7 to 16 are legally entitled to bilingual
education, and municipalities are obliged to offer mother-tongue tuition and Swedish as a
second-language course. Denmark promotes a co-education policy in which bilingual
and monolingual children learn together. Migrant children receive up to two years of
basic instruction in Danish as a second language in separate teams or classes until they are
ready for mainstream classes. ‘Compulsory language stimulation’ for bilingual children
starts at age 3 and is supported by free materials provided at the municipal level”:
V. Muñoz, “The Right to Education of Migrants, Refugees and Asylum-Seekers: Report
of the Special Rapporteur on the Right to Education,” UN Doc. A/HRC/14/25, Apr. 16,
2010, at [45].

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 4.8 e duc ati on 737

refugee children, other states offer little or no such instruction. In Ireland, for
example, the decision was made that Vietnamese refugee children should be
“left to either sink or swim”2460 in English-language education. And Lebanese
schools at both the primary and secondary levels increasingly teach courses
entirely in English or French, which may be unfamiliar to Syrian refugee
children.2461 Turkey, in contrast, addressed the challenge of Syrian students’
inability to understand the host country language by contracting with UNICEF
to pay the salaries of about 13,000 Syrian teachers who otherwise lacked
permission to work.2462
Secondary and post-secondary education is normally even less easily
accessed by refugees. Most refugees in the global South have no access what-
ever to advanced formal education;2463 those who do may face bureaucratic
barriers in practice.2464 For instance, Syrian refugees in Turkey must present

2460
F. McGovern, “The Education of a Linguistic and Cultural Minority: Vietnamese
Children in Irish Schools, 1979–1989,” (1993) 12 Irish Education Studies 92, at 95. “No
special language provision was made for the Vietnamese children of school-going age in
the mainstream system . . . The belief was that if children were submerged in the
mainstream schooling system, they would pick up English language and somehow
survive”: ibid.
2461
“Beginning in grade 7, Lebanese public schools teach most morning shift classes entirely
in English or French – unfamiliar languages for many Syrian children. In afternoon shifts
at primary schools, most classes are supposed to be taught in Arabic, but science and
math classes are also taught in English or French, and in practice some teachers are
teaching all classes in those languages. There are no Arabic language shifts at the
secondary school level. Families also report inattentive teachers and a lack of textbooks
in some schools”: Human Rights Watch, “Education for Syrian Refugee Children: What
Donors and Host Countries Should Do,” Sept. 16, 2016.
2462
H. al-Jablawi, “Analysis: Turkey’s Underpaid Syrian Teachers Now Fearing being Phased
Out,” News Deeply, Mar. 23, 2018. Prior to the 2016 contract with UNICEF, many Syrian
teachers worked for meager stipends or as volunteers: Human Rights Watch, “‘When I
Picture my Future, I See Nothing’: Barriers to Education for Syrian Refugee Children in
Turkey,” Nov. 2015, at 48–49.
2463
Much of the restricted access is due to a lack of funding: “Of the limited funds available
for education, primary education receives the lion’s share, with secondary an after-
thought, even though it often costs more due to the need for more highly-qualified
teachers, more textbooks and classrooms, and specialized equipment and infrastructure.
In 2015, for example, UNHCR allocated just 13 percent of its education budget to
secondary education, one-third of what it spent on primary”: B. Khawaja et al., “The
Lost Years: Secondary Education for Children in Emergencies” (2017) (Khawaja, “Lost
Years”). See also “Report of the Special Rapporteur on the Right to Education,” UN Doc.
A/HRC/14/25, Apr. 16, 2010, at [69].
2464
“In Lebanon, the Ministry of Education and the United Nations High Commissioner for
Refugees (UNHCR) set a target last year of enrolling nearly 200,000 Syrian refugee
children in public primary schools, but just 2,080 in public secondary schools. And
while a back-to-school public outreach campaign advertised free and easy enrollment
for refugee and Lebanese children in grades 1–9, it did not include higher grades”:
Khawaja, “Lost Years”.

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an identity document to enroll, but the introduction in 2016 of a pre-screening

procedure for “temporary protection status” applicants to receive the card
generated months-long delays.2465 Moreover, the principal means for refugees
in the less developed world to access secondary and university education has
been through international funding; when their aid sources prove insufficient,
the costs are often shifted to refugees. In the Kakuma refugee camp in Kenya,
for example, secondary schools were forced to close when few students could
afford the $10 fees imposed for attendance for each term.2466 Even in states
where refugees are formally entitled to have access to higher education,
authorities sometimes restrict opportunities out of fear that the admission of
a refugee effectively deprives a citizen of access to higher education. For example,
Tanzania once set a limit of 2 percent non-citizens in post-elementary
educational institutions.2467 The requirement in some cases to submit ori-
ginal certifications from Syria to enroll in Jordanian secondary schools,2468
the high cost of transcript accreditation for university attendance in South
Africa,2469 and the requirement that Afghans renounce refugee status to

2465
Dutch Council for Refugees and European Council on Refugees and Exiles, “The DCR/
ECRE Desk Research on Application of a Safe Third Country and a First Country of
Asylum Concepts to Turkey,” May 2016, at [26]. “The Kimlik is theoretically available to
any Syrian who arrives in Turkey with an accepted form of Syrian ID – even a student ID
will do. However, the Kimlik system is extremely slow in providing Syrian refugees with
this document, and Turkish officials acknowledge the system is overwhelmed with
requests”: C. Gentile and N. Nalbandian, “Turkish Rules Leave Syrian Refugee
Children in Limbo,” National Public Radio, Aug. 24, 2016. “In some areas, Turkish public
school administrators refused to allow Syrian children to enroll even if they had the
identification cards, or the school officials demanded other documents”: Human Rights
Watch, “Education for Syrian Refugee Children: What Donors and Host Countries
Should Do,” Sept. 16, 2016. The identification document is required for accessing
primary and secondary education as well as public healthcare: I. Leghtas and
D. Sullivan, “‘Except God, we have no one’: Lack of Durable Solutions for Non-Syrian
Refugees in Turkey” (Feb. 2016), at 6.
2466
The introduction of the fees was attributed to a shortage of international funding:
O. Emmanuel, “Kakuma Secondary Schools Closed after Students’ Protest over Fees,”
Eye Radio, Feb. 20, 2018.
2467
Forbes Martin, Refugee Women, at 47.
2468
“Syrian adolescents in Jordan described giving up trying to re-enroll in secondary school
after spending years trying to meet inflexible requirements for school certification. Amal,
20, said she had completed all her high school exams ‘except the very last one’ before her
family fled Syria, but when she tried to finish her exams in Jordan, Ministry of Education
officials refused. ‘They said they needed proof I had passed 11th grade, but they wouldn’t
accept my faxed form, and told me I needed to send in the original.’ She would have to
return to Syria to obtain it, ‘but the border is closed, and anyway it is dangerous for me to
go back’”: Khawaja, “Lost Years”.
2469
“[R]eports from the Western Cape detail the process of accredidation of their original
transcripts as prohibitively expensive, rendering them ineligible to pursue employment
or access to University education for which they are otherwise eligible. It currently costs
R700 for transcripts to be accredited The process can take up to a year with awaiting

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 4. 8 e duc at ion 739

study a restricted range of subjects in Iran2470 illustrate further difficulties

faced by refugee student populations.
While generally insufficiently funded in the less developed world, non-
formal education can offer a useful alternative for those who face overcrowding
in public schools or otherwise lack access to formal education.2471 Tensions
over who should provide non-formal education, however, may result in limited
access even to these opportunities. This was the case in Lebanon, in which it
was determined that the non-formal programs previously established for
Syrian refugees must operate only as a bridge to the formal sector; as a result
of this policy, “any NGOs operating outside of this framework could be shut
down.”2472 Moreover, educational programs designed to impart basic skills to
adult refugees, including literacy and numeracy training, have been in short
supply due to a generalized lack of funding.2473
Vocational programs tend to be more adequately funded than are basic
educational initiatives,2474 but are generally “not a legal right and are often
geographically and temporally limited, with more remote refugee camp set-
tings being particularly underserved.”2475 Such programs are often funded by
NGOs rather than states: the provision of health-worker education and teacher
training in Burma, of language and other skills in South Africa, and of

migrants not being able to study or work during that time”: I. Baatjes et al., “The
Education Rights of Migrants, Refugees and Asylum Seekers in South Africa: Report to
the Foundation for Human Rights,” University of Johannesburg Center for Education
Rights and Transformation, June 2012, at 29.
2470
“In 2012 the Iranian government introduced a regulation that required that Afghan
refugees wishing to attend university in Iran first renounce their refugee status and obtain
an Afghan passport and student visa . . . Additionally, there are restrictions on the fields
of study that Afghans can pursue in universities. In June 2012, foreigners including
Afghans were banned from studying 30 subjects at Iranian universities, including atomic
physics, nuclear engineering, aerospace engineering, and chemical engineering. It was
unclear whether foreign students already enrolled in programs in those areas would be
permitted to complete their studies. The Iranian government’s declaration of ‘no go areas’
for in-country Afghan migrants and refugees also prevents them from attending univer-
sities in those areas”: Human Rights Watch, “Unwelcome Guests: Iran’s Violation of
Afghan Refugee and Migrant Rights,” Nov. 2013, at 66–67.
2471
M. Mendenhall et al., “Urban Refugee Education: Strengthening Policies and Practices for
Access, Quality, and Inclusion” (Mar. 2017), at 43.
2472
Ibid. at 25–26.
2473
IEC and WUS, “Refugee Education,” at 31. An innovative success story is the Education
Program for Sudanese Refugees (EPSR) established by Makerere University which
provided refugees with library, reading, and training facilities, all at a location easily
reached by foot from the area where more than half of the refugees lived: B. Sesnan, “Push
and Pull: Education for Southern Sudanese in Exile, 1986–1996,” in G. Retamal and
R. Aedo-Richmond eds., Education as a Humanitarian Response 59 (1998), at 69–70.
2474
IEC and WUS, “Refugee Education,” at 32.
2475
V. Muñoz, “The Right to Education of Migrants, Refugees and Asylum-Seekers: Report of
the Special Rapporteur on the Right to Education,” UN Doc. A/HRC/14/25, Apr. 16,
2010, at [65].

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information technology courses in Morocco serve as positive examples in this

regard.2476 Without adequate oversight or coordination, however, services
implemented by participating NGOs sometimes result in duplication or gaps
in the types of courses offered.2477 In other cases, the implementation of
training programs by private providers may pose other barriers to refugees
wishing to participate. In Pakistan, for example, the state’s lack of oversight of
such providers was found to result in exorbitant fees for courses that would not
necessarily lead to official certification.2478
In the developed world, access to secondary and post-secondary education,
as well as to language courses, continuing education courses, and informal
orientation courses is generally provided to recognized refugees on at least the
same terms as that afforded other long-term lawful residents. In the European
Union, for example, refugees and recipients of subsidiary protection status
benefit from access to the general education system, including training, under
the same conditions as lawfully resident third-country nationals.2479 In con-
trast, the diversion of refugee students with limited English ability and no
academic records into an inferior, privately operated school in the United
States can deny a quality education to those affected.2480
The most serious challenge for refugees seeking to avail themselves of
educational opportunities in the developed world is the distinction sometimes
drawn between recognized refugees and those whose asylum claims have yet to

2476
Ibid. at [64].
2477
K. Jacobsen and S. Fratzke, “Building Livelihood Opportunities for Refugee Populations:
Lessons from Past Practice,” Sept. 2016, at 10.
2478
G. Nyangweso, “Factors Influencing Urban Refugee Youth Access to Technical and
Vocational Education and Training Programmes in Nairobi County, Kenya,”
University of Nairobi Research Paper (2014), at 17.
2479
In the European Union, for example, “Member States shall allow adults granted inter-
national protection access to the general education system, further training or retraining,
under the same conditions as third country nationals legally resident”: EU Qualification
Directive (recast), at Art. 27(2).
2480
At issue was the district’s forced diversion of students aged seventeen to twenty-one to a
private school with an accelerated curriculum on the basis of their limited English
proficiency: “[T]he school district has refused to enroll the plaintiffs at McCaskey, the
regular public high school, even though it has a transitional program called the
‘International School,’ which is specifically designed to address the needs of [limited
English proficiency] students who are new to the country. Instead, the district rejects their
enrollment completely or, if they persist, assigns them to Phoenix Academy, an alterna-
tive high school for ‘underachieving’ students run by a private company, Camelot
Education”: ACLU Pennsylvania, “Issa v. School District of Lancaster,” www.aclupa.org/
our-work/legal/legaldocket/issa-v-school-district-lancaster/, accessed Feb. 20, 2020.
Following an injunction ordering the district to permit the affected students to enroll
in McCaskey’s International Program (Issa et al. v. School District of Lancaster, 847 F. 3d
121 (US CA3, Jan. 30, 2017)), a settlement was reached to provide for future access to the
program for all: ACLU Pennsylvania, “Lancaster School District Settlement will give all
Future Immigrant Students Access to an Appropriate Education,” Mar. 29, 2017.

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 4.8 e duca tio n 741

be formally determined, or who are granted an alternative form of status. The

European Union treats access to vocational training for refugees awaiting
status verification as a matter of pure discretion for state parties.2481 In the
result, basic orientation programs, continuing education classes, and even
language programs are denied to refugee claimants in some countries. For
example, in 2007 Britain withdrew its automatic fee remission for all refugee
claimants,2482 replacing it with a six-month residency requirement that must
be met to access English language courses at 50 percent of the usual cost.2483
Refugee claimants in Canada, Sweden, and the Netherlands are not eligible for
language instruction at all, while those in France and Norway must comply
with accommodation requirements in order to retain eligibility.2484
Much the same pattern of differentiation holds for more formal sorts of
advanced education. While recognized refugees in the global North are for the
most part assimilated to long-term residents for purposes of eligibility for
grants and bursaries to attend university as well as recognition of their creden-
tials,2485 refugees whose claims have not yet been formally assessed may be

2481
“Member States may allow applicants access to vocational training irrespective of
whether they have access to the labour market”: EU Reception Directive (recast), at
Art. 16. In contrast, the EU Qualification Directive (recast) obliges Member States to
“ensure that activities such as employment-related education opportunities for adults,
vocational training, including training courses for upgrading skills, practical workplace
experience and counselling services afforded by employment offices, are offered to
beneficiaries of international protection, under equivalent conditions as nationals”: at
Art. 26(2).
2482
“Esol (English for speakers of other languages), as all teaching of English as a
foreign language has become known in recent years, ‘will no longer attract auto-
matic fee remission,’ the Learning and Skills Council (LSC) has announced. From
next year, only the unemployed and people receiving income-based benefits will
have their fees waived if they want to learn English. Adult asylum seekers who are
awaiting the outcome of applications to stay in Britain will not qualify for free Esol,
or indeed subsidised further education of any kind. ‘Only those who are granted
refugee status, humanitarian protection or discretionary leave by the government
will be eligible,’ says the LSC. Asylum seekers aged under 18 will still be able to get
free Esol and further education”: P. Kingston, “Too Expensive in Any Language:
Demand for Free English Classes is Too High – So Now Asylum Seekers and Others
will have to Pay to Learn,” Guardian, Oct. 23, 2006.
2483
Refugee Action, “Let Refugees Learn: Challenges and Opportunities to Improve
Language Provision to Refugees in England,” May 2016, at 10.
2484
Ibid. at 13–14.
2485
Art. 28(1) provides for equal treatment “between beneficiaries of international protection
and nationals in the context of the existing recognition procedures for foreign diplomas,
certificates and other evidence of formal qualifications,” whereas Art. 28(2) obliges
Member States to “endeavour to facilitate full access for beneficiaries of international
protection who cannot provide documentary evidence of their qualifications to appro-
priate schemes for the assessment, validation and accreditation of their prior learning”:
EU Qualification Directive (recast), at Art. 28.

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denied such access.2486 In the United Kingdom, for instance, refugee claimants
are likened to overseas applicants for purposes of tuition and student fees,
though some universities choose to regard them on the same terms as nation-
als.2487 Restrictions in Australia are so severe that even recognized refugees
may be barred from accepting scholarships by virtue of their temporary visa
status.2488 In other areas, barriers faced in accessing tertiary education include
the difficulty of producing (and even non-recognition of) school diplomas or
exam results, exorbitant fees, and enrollment quotas giving preference to
nationals over foreign residents.2489

Refugee Convention, Art. 22 Public Education

1. The Contracting States shall accord to refugees the same
treatment as is accorded to nationals with respect to elemen-
tary education.
2. The Contracting States shall accord to refugees treatment as
favourable as possible, and, in any event, not less favourable
than that accorded to aliens generally in the same circum-
stances, with respect to education other than elementary educa-
tion and, in particular, as regards access to studies, the
recognition of foreign school certificates, diplomas and degrees,
the remission of fees and charges and the award of scholarships.
Economic, Social and Cultural Covenant, Art. 13(1)–(2)
1. The States Parties to the present Covenant recognize the right of
everyone to education. They agree that education shall be dir-
ected to the full development of the human personality and the
sense of its dignity, and shall strengthen the respect for human
rights and fundamental freedoms. They further agree that

2486
With the exception of minor children of refugees, access to advanced forms of education
by persons seeking refugee status is simply not addressed by the European Union, leaving
the matter to the discretion of state parties: EU Reception Directive (recast), at Art. 14(1).
2487
Refugees into Teaching Information, “Fees and Funding,” 2013, at 1–2.
2488
Refugee Council of Australia, “Barriers to Education for People Seeking Asylum and
Refugees on Temporary Visas,” Dec. 2015, at 4–5.
2489
“Application processes typically require documentation that refugees may not have,
including birth certificates, school diplomas, and examination results. In countries of
first asylum, refugees who seek to access higher education are often treated by national
institutions as foreign students, with the exorbitant fees that this status usually entails. In
addition, some universities have enrolment quotas, giving priority to nationals. Further,
there are sometimes matriculation restrictions that serve to limit enrolment by certain
refugee groups such as in the case of Makerere University in Uganda, which in 2005 did
not accept translations of high school diplomas, making it impossible for anyone edu-
cated in DRC with a French-language diploma, for example, to enter the university”:
S. Dryden-Peterson, “The Politics of Higher Education for Refugees in a Global
Movement for Primary Education,” (2010) 27(2) Refuge 13.

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 4. 8 e duc at ion 743

education shall enable all persons to participate effectively in a

free society, promote understanding, tolerance and friendship
among all nations and all racial, ethnic or religious groups, and
further the activities of the United Nations for the maintenance
of peace.
2. The States Parties to the present Covenant recognize that, with
a view to achieving the full realization of this right:
(a) Primary education shall be compulsory and available free
to all;
(b) Secondary education in its different forms, including
technical and vocational secondary education, shall be
made generally available and accessible to all by every
appropriate means, and in particular by the progressive
introduction of free education;
(c) Higher education shall be made equally accessible to all, on
the basis of capacity, by every appropriate means, and in
particular by the progressive introduction of free education;
(d) Fundamental education shall be encouraged or intensified
as far as possible for those persons who have not received or
completed the whole period of their primary education;
(e) The development of a system of schools at all levels shall
be actively pursued, an adequate fellowship system shall
be established, and the material conditions of teaching
staff shall be continuously improved.
The Refugee Convention broke with precedent by making a clear commitment
to provide at least the most basic forms of education to refugees (and their
children)2490 on terms of equality with nationals. While the predecessor treaties
of 1933 and 1938 required only that educational rights be granted to refugees to the
extent enjoyed by aliens in general,2491 the drafters of the current Refugee
Convention were firmly committed to the belief that public elementary education
2490
As Grahl-Madsen observes, “the present paragraph will on the whole only be meaningful if it
is interpreted to give children of refugees the rights for which it provides, unless they have
greater rights in their own right, i.e. as nationals of the country of residence”: Grahl-Madsen,
Commentary, at 86. Grahl-Madsen refers in this regard to Recommendation B of the Final
Act of the Conference of Plenipotentiaries, in which the state representatives “[n]ot[ed] with
satisfaction that, according to the official commentary of the Ad Hoc Committee on
Statelessness and Related Problems, the rights granted to a refugee are extended to members
of his family”: ibid. See also, for example, the comment of the French representative in
relation to Art. 22(2) that “[t]he fundamental purpose of article [22] was to prevent the son of
a refugee from being forbidden to enter a given faculty [emphasis added]”: Statement of Mr.
Juvigny of France, UN Doc. E/AC.32/SR.37, Aug. 16, 1950, at 26.
2491
The relevant provision in these earlier treaties stipulated that “[r]efugees shall enjoy in the
schools, courses, faculties and universities of each of the Contracting Parties, treatment as
favorable as other foreigners in general. They shall benefit in particular . . . by the total or

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 744 4 ri g h t s of r e f u g e es ph y s i c a l l y p r e s e nt

– meaning “elementary education over which the Contracting State concerned had
direct control, whether financial or other”2492 – should be made available to all
refugees without qualification, and on terms of equality with citizens of the host
state.
The decision of the drafters that all refugees should have immediate and
unconditional access to the same forms of public elementary education as nation-
als was in part the product of an awareness that “schools are the most rapid and
most effective instruments of assimilation.”2493 But most fundamentally, as the
South African Supreme Court of Appeal has pointedly observed, there was an
understanding that “[t]he freedom to study is . . . inherent in human dignity, for
without it a person is deprived of the potential for human fulfilment.”2494 This
strong position of principle explains why the Universal Declaration’s duty to
provide elementary education to “everyone” is restricted neither to nationals,
nor even to children.2495

partial remission of fees and charges and the award of scholarships”: United Nations,
“Statelessness,” at 58.
2492
Statement of Mr. Hoare of the United Kingdom, UN Doc. A/CONF.2/SR.35, July 25, 1951, at
8. Mr. Hoare’s position followed from the clarification of the American representative to the
Ad Hoc Committee that “the words ‘public education’ . . . were intended to apply not only to
State-owned schools but also to private schools receiving Government subsidies”: Statement of
Mr. Henkin of the United States, UN Doc. E/AC.32/SR.23, Feb. 10, 1950, at 7. Indeed, while
the general rule agreed to was that the headings for articles in the Convention should not have
independent legal force, the President of the Conference of Plenipotentiaries noted that an
exception should be made “in the case of article 22, ‘Public education’”: Statement of the
President, Mr. Larsen of Denmark, UN Doc. A/CONF.2/SR.35, July 25, 1951, at 37. As
Zimmermann and Dörschner conclude, “the drafters . . . stated their intention to limit the
scope of the provision to cover only access to public institutions and to any education
subsidized, in whole or in part, by public funds”: A. Zimmermann and J. Dörschner,
“Article 22,” in A. Zimmermann ed., The 1951 Convention Relating to the Status of Refugees
and its 1967 Protocol: A Commentary 1019 (2011) (Zimmermann and Dörschner, “Article
22”), at 1031.
2493
Secretary-General, “Memorandum,” at 40.
2494
Minister of Home Affairs v. Watchenuka, (2004) 1 All SA 21 (SA SCA, Nov. 28, 2003), per
Nugent J.A. at [36]. The same court was clear that while the right to education could not be
universally guaranteed by any state to all who might wish to live in it, “where, for example, the
person concerned is a child who is lawfully in this country to seek asylum (there might be other
circumstances as well), I can see no justification for limiting that right so as to deprive him or
her of the opportunity for human fulfilment at a critical period . . . A general prohibition that
does not allow for study to be permitted in appropriate circumstances is in my view unlawful”:
ibid.
2495
This approach is consistent with the recent affirmation by the Committee on Economic, Social
and Cultural Rights that the duty to provide education “to everyone” includes, for example, a
duty towards the elderly. “Article 13, paragraph 1, of the Covenant recognizes the right of
everyone to education. In the case of the elderly, this right must be approached from two
different and complementary points of view: (a) the right of elderly persons to benefit from
educational programmes; and (b) making the know-how and experience of elderly persons

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 4. 8 e duc at ion 745

4.8.1 Elementary Education

The Convention does not, however, offer a clear definition of “elementary”
education.2496 Based on concordance with the equally authoritative French-
language text – which refers to “l’enseignement primaire” (and not, for
example, “l’enseignement élémentaire”) – it might reasonably be thought
that Art. 22(1) of the Refugee Convention governs only access to primary, as
distinguished from secondary or tertiary, education.2497 Under this interpret-
ation, Art. 22(1) regulates only the right of children to participate in pre-
secondary, grade school education.2498
On the other hand, analysis of the only cognate norm in existence at the time
of the Refugee Convention’s drafting – Art. 26 of the Universal Declaration of
Human Rights – suggests that “[t]here is no fixed border between elementary
and fundamental education. Elementary education includes fundamental edu-
cation such as literacy, arithmetic and basic orientation into society.”2499

available to younger generations”: UN Committee on Economic, Social and Cultural Rights,

“General Comment No. 6: The Economic, Social and Cultural Rights of Older Persons”
(1995), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [36].
2496
See S. Blay and M. Tsamenyi, “Reservations and Declarations under the 1951 Convention and
the 1967 Protocol relating to the Status of Refugees,” (1990) 2(4) International Journal of
Refugee Law 527 (Blay and Tsamenyi, “Reservations”), at 547: “The difficulty with Article
22(1) is that the Convention does not define what is ‘elementary education.’ Thus in the case
of States where primary education stretches from primary school through to high school and
therefore covers education before tertiary studies, Article 22(1) imposes a significant burden.”
2497
Indeed, in a draft submitted to the Ad Hoc Committee, the French representative suggested
that the term “primary education” ought to be employed in the English-language text: France,
“Draft Convention,” at 7. The French government appears to have seen no substantive
divergence between its language and that proposed by the United Nations draft referring to
“elementary education,” and therefore withdrew its proposal: UN Doc. E/AC.32/SR.15, Jan.
27, 1950, at 9. In line with this view, Grahl-Madsen suggests that “‘[e]ducation other than
elementary education’ is normally understood as education beyond the grade school”: Grahl-
Madsen, Commentary, at 87. The term “elementary school” is moreover commonly used in
the United States to mean what is usually referred to as “primary school” in most other
English-speaking countries (“a school including usually the first four to the first eight grades
and often a kindergarten”): Merriam-Webster Dictionary, www.merriam-webster.com/dic
tionary/elementary%20school, accessed Feb. 20, 2020.
2498
See e.g. Zimmermann and Dörschner, “Article 22,” at 1035–1037. The authors argue that
because the drafters of the Refugee Convention saw no difference between “primary” and
“elementary” education and given that Art. 13 of the Economic Covenant distinguishes
between “primary” and “fundamental” education with the former applying only to children,
“mutatis mutandis . . . it follows that the concept of ‘elementary’ education [in] Art. 22, para. 1
refers to the education of children only”: ibid. at 1037. While plausible at least as a construc-
tion of the French-language text of Art. 22(1), the equation is not quite as simple as suggested
given that the Economic Covenant conceives of education as a four-part (not two-part, as
under the Refugee Convention) notion – primary, secondary, higher, and fundamental – with
no reference at all to “elementary” education: Economic Covenant, at Art. 13.
2499
P. Arajäravi, “Article 26,” in A. Eide et al. eds., The Universal Declaration of Human
Rights: A Commentary 405 (1992) (Arajäravi, “Article 26”), at 408–409. On the other

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 746 4 ri g h t s of r e f u g e es ph y s i c a l l y p r e s e nt

Under this more inclusive understanding, Art. 22(1)’s guarantee of access to

elementary education requires not just that refugee children have access to
primary education, but also that fundamental education be open to adult
refugees. This broader approach moreover aligns with the view of the
Committee on Economic, Social and Cultural Rights that primary and funda-
mental education are essentially aspects of the same notion;2500 indeed, Art.
13(2)(d) of the Economic Covenant expressly provides that “fundamental
education” is education “for those persons who have not received or completed
the whole period of their primary education [emphasis added].”2501 Read in
this context,2502 in a manner that best advances the Convention’s effective-
ness2503 and which avoids age-based discrimination,2504 Art. 22(1)’s guarantee
of access to public “elementary education” is thus most sensibly understood to
include both primary education and fundamental education, with the latter
compris[ing] both essential learning tools (such as literacy, oral
expression, numeracy, and problem solving) and the basic learning
content (such as knowledge, skills, values, and attitudes) required by
human beings to be able to survive, to develop their full capacities, to
live and work in dignity, to participate fully in development, to
improve the quality of their lives, to make informed decisions, and
to continue learning.2505
This interpretation is also consistent with the textual framing of the beneficiary
class for Art. 22(1) – namely “refugees,” rather than, for example, “refugee
children” as would have been appropriate if only access to primary education
had been envisaged.
Indeed, the beneficiary class for rights under Art. 22(1) is intentionally
broad,2506 not limited, for example, only to refugees lawfully “present” or “staying”
hand, it must be acknowledged that Art. 26 does textually distinguish “elementary” from
“fundamental” education, with only the former said to be “compulsory”: Universal
Declaration, at Art. 26.
2500
“While primary education is not synonymous with basic education, there is a close
correspondence between the two. In this regard, the Committee endorses the position
taken by UNICEF [that] [‘p]rimary education is the most important component of basic
education’”: UN Committee on Economic, Social and Cultural Rights, “General
Comment No. 13: The Right to Education” (1999), UN Doc. HRI/GEN/1/Rev.7, May
12, 2004, at [9]. The Committee on Economic, Social and Cultural Rights uses the terms
“basic” and “fundamental” education interchangeably: ibid. at [22].
2501
Economic Covenant, at Art. 13(2)(d). 2502 See Chapter 2.2. 2503 See Chapter 2.3.
2504
This concern arises from the interpretation advanced by Zimmermann and Dörschner
(see note 2498) that limits Art. 22(1) to children.
2505
The Committee on Economic, Social and Cultural Rights adopted this definition of
“fundamental education” set by Art. 1 of the 1990 World Declaration on Education for
All: UN Committee on Economic, Social and Cultural Rights, “General Comment No. 13:
The Right to Education” (1999), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [22].
2506
This interpretation is borne out in state practice. For example, in formulating their
reservations to Art. 22(1) of the Convention, Egypt, Mozambique, Zambia, and

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 4 .8 educ at ion 747

in a state party – meaning that states are “under a duty to fulfil their obligations
under Art. 22 with regard to refugees not (yet) present on their territory.”2507 As
such, the denial of access to elementary education to children detained in Greek
First Reception and Identification Centers (hotspots)2508 and in Hungarian transit
zones2509 is in violation of Art. 22(1). Nor is it lawful for South Africa to stigmatize
the children of Zimbabwean refugee claimants as “illegal foreigners” and to deny
them education on that basis.2510 Germany similarly breached its duties when it
acquiesced in protracted delays in accessing education and especially when it
failed to countermand local decisions to exclude refugee children from public
schools altogether.2511 And Turkey was wrong to deny refugee children access to
elementary education on the grounds that they did not possess an identity card
that the government conceded it was incapable of providing in a timely way.2512
Nor even may education be delayed until formal status determination procedures
are commenced or concluded2513 – meaning that the decision of the European
Union to condition access to education on the lodging of a protection application,
and even then to authorize a delay of as much as three months,2514 is out of line
with the requirements of Art. 22(1).2515

Zimbabwe each noted their inability to assimilate refugees to their own citizens for
purposes of access to public elementary education.
2507
Zimmermann and Dörschner, “Article 22,” at 1030. See also Robinson, History, at 123 (“It
must be assumed that paragraph 1 is equally applicable to both resident and non-resident
refugees, in view of the generally accepted nature of public elementary education”); Weis,
Travaux, at 170 (“The Article refers to ‘refugees’ without qualification such as ‘lawfully
stay[ing]’”); and Grahl-Madsen, Commentary, at 86 (“Article 22 applies to ‘refugees’ – there
is no condition as to residence, lawfulness of presence in territory, etc.”). The English Court
of Appeal has thus correctly recognized that “[a]ll asylum seekers . . . require to be housed
and fed while their claims are being processed. Likewise their children require to be educated
during that interim period”: Hannah Blakesley v. Secretary of State for the Home Department,
[2015] EWCA Civ 141 (Eng. CA, Feb. 26, 2015), at [40].
2508
See text at note 2451. 2509 See text at note 2452. 2510 See text at note 2436.
2511
See text at notes 2455–2456.
2512
See text at note 2465. Noteworthy in this regard is the encouragement of two UN
supervisory bodies for states “to expeditiously reform regulations and practices that
prevent migrant children, in particular undocumented children, from registering at
schools and educational institutions”: UN Committee on the Protection of the Rights
of All Migrant Workers and Members of Their Families and UN Committee on the
Rights of the Child, “Joint General Comment No. 4: State Obligations regarding the
Human Rights of Children in the Context of International Migration in Countries of
Origin, Transit, Destination and Return,” UN Doc. CMW/C/GC/4-CRC/C/GC/23, Nov.
16, 2017, at [60].
2513
“Paragraph 1 was inspired by Art. 26(1) of the Universal Declaration of Human Rights
which proclaimed that elementary education should be compulsory and free. It is obvious
that in compulsory and free education refugees cannot be treated differently from
nationals”: Robinson, History, at 122.
2514
See text at note 2457.
2515
Even under arguably difficult circumstances, there has been little tolerance of delay in
ensuring that refugee children are granted access to education. For example, in its

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Equally important, the right guaranteed is not simply to access elementary

education in some vague sense, but rather to receive “the same treatment as is
accorded to nationals with respect to elementary education [emphasis
added].”2516 While the specific linguistic or psychosocial needs of refugees
should be catered for,2517 equivalent qualitative benchmarks must be respected
and “separate schooling for refugees may exist for a limited period only and
must be based on reasons other than mere organizational convenience.”2518
For this reason, Uganda’s insistence that South Sudanese refugee children have
access only to makeshift refugee-specific schools that were both overcrowded
and under-resourced,2519 Malaysia’s relegation of Rohingya refugee children to
unaccredited, parallel NGO-run “learning centers,”2520 the assignment by the
United States of refugees with limited English-language skills to inferior,
privately operated schools,2521 and the British rule forcing the children of
asylum applicants to endure long delays to access schooling in a reception
center rather than being allowed to attend local schools2522 are all policies
unlikely to pass muster under Art. 22(1). Indeed, the EU’s decision to guaran-
tee refugee children access to education only under “similar conditions as
nationals”2523 – rather than, as the Refugee Convention requires, to guarantee
“the same treatment as is accorded to nationals” – is not in accordance with
Convention requirements.

scrutiny of the report of Poland, the Committee on the Rights of the Child expressed its
“concern[] that children waiting for their refugee claims to be processed do not have
opportunities for education if they are housed in emergency blocks”: UN Committee on
the Rights of the Child, “Concluding Observations on the Report of Poland,” UN Doc.
CRC/C/121 (2002), at [539].
2516
Indeed, states are likely under a duty to make any elementary education which is
generally mandatory for citizens also mandatory for refugees: Zimmermann and
Dörschner, “Article 22,” at 1033.
2517
“The principle of equality of treatment requires States to . . . [adopt], where necessary,
targeted measures . . . including additional language education, additional staff and other
intercultural support”: UN Committee on the Protection of the Rights of All Migrant
Workers and Members of Their Families and UN Committee on the Rights of the Child,
“Joint General Comment No. 4: State Obligations regarding the Human Rights of
Children in the Context of International Migration in Countries of Origin, Transit,
Destination and Return,” UN Doc. CMW/C/GC/4-CRC/C/GC/23, Nov. 16, 2017, at [62].
2518
Zimmermann and Dörschner, “Article 22,” at 1033–1034. As two UN supervisory
committees have correctly insisted, “States should take measures aimed at prohibiting
and preventing any kind of educational segregation”: UN Committee on the Protection of
the Rights of All Migrant Workers and Members of Their Families and UN Committee
on the Rights of the Child, “Joint General Comment No. 4: State Obligations regarding
the Human Rights of Children in the Context of International Migration in Countries of
Origin, Transit, Destination and Return,” UN Doc. CMW/C/GC/4-CRC/C/GC/23, Nov.
16, 2017, at [62].
2519
See text at note 2443. 2520 See text at note 2429. 2521 See text at note 2480.
2522
See text at notes 2453–2454. 2523 See text at note 2457.

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 4 .8 ed uc at ion 749

It is also likely that at least some of the adult refugee claimants denied access
to fundamental education programs pending verification of their status are not
being granted their full rights under Art. 22(1). While limitations may be
validly placed on access to the broader range of adult education programs,2524
any initiative that provides adult citizens with elementary education (e.g. in
literacy, oral expression, numeracy, and problem solving) must be available to
refugees, whether formally recognized as such or not,2525 on terms of equality
with nationals. The indeterminate and status-based bar on access to language
education set by Canada, the Netherlands, and Sweden (refusing funded
language training until formal verification of refugee status is complete),2526
as well as the British decision to delay subsidized language training for refugees
for six months2527 would thus breach Art. 22(1) of the Refugee Convention
since citizens seeking comparable elementary education would be subject to no
such constraints. The decisions of France and Norway to condition access to
free language training on the unlawful2528 requirement to reside in an accom-
modation center2529 are also self-evidently and impermissibly conditioned on a
requirement not applicable to citizens.
That said, it is important to avoid an interpretation of Art. 22(1) that would
result in “equality with a vengeance.” For example, Jordan’s past insistence on
applying its general policy disallowing the enrollment of children who are three
or more years older than those at their grade level2530 failed to take account of
the unique circumstances of many refugee children who may not have been
able to attend school due to war or persecution in the home country, and whose
education was often delayed by the process of flight and reestablishment – thus
raising concerns about substantive equality of treatment. Similarly, Thailand’s
seemingly compliant policy of requiring that local (rather than expatriate)
teachers run classes for refugee children living in camps also raises concerns
about substantive equality of treatment given that the acute shortage of local
teachers means that, at best, only poorly trained teachers were made available
to educate refugee children.2531
Importantly, the Refugee Convention’s guarantee of access to elementary
education is more comprehensive than the cognate right under Art. 13(2)(a) of
the Covenant on Economic, Social and Cultural Rights. Under the Covenant,
some flexibility in achieving elementary education for all is available, at least to
poorer states,2532 as rights under that treaty need only be implemented

2524
See text at note 2570 ff.
2525
The declaratory nature of refugee status is discussed at Chapter 3.1.
2526
See text at note 2484. 2527 See text at notes 2482–2483. 2528 See Chapter 4.2.4.
2529
See text at note 2484. 2530 See text at note 2430. 2531 See text at note 2441.
2532
For developed countries, on the other hand, the duties to provide elementary education
under the Refugee Convention and the Economic Covenant are essentially indistinguish-
able as wealthier states cannot easily meet the test for valid failure to satisfy such a core
right. As Craven has written, “[a]lthough economic considerations will always play a part

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 750 4 ri g ht s of re f u g e e s p hy s i c a l l y p r e s e n t

progressively,2533 albeit without discrimination.2534 Even though “the most

basic forms of education” have been recognized as a “core” entitlement,2535

in any calculation relating to the implementation of the rights, the presumption is that
developed States are under an obligation to implement the provisions of the Covenant
immediately, the progressive nature of the obligations applying only to those States that
lack sufficient resources to do so themselves”: Craven, ICESCR Commentary, at 132–133.
See also UN Committee on Economic, Social and Cultural Rights, “General Comment
No. 3: The Nature of States Parties’ Obligations” (1990), UN Doc. HRI/GEN/1/Rev.7,
May 12, 2004, at [5] (“[T]here are a number of other provisions in the International
Covenant on Economic, Social and Cultural Rights, including article . . . 13(2)(a) . . .
which would seem to be capable of immediate application by judicial and other organs in
many national legal systems. Any suggestion that the provisions indicated are inherently
non-self-executing would seem to be difficult to sustain”).
2533
“The term ‘progressive realization’ is often used to describe the intent of this phrase. The
concept of progressive realization constitutes a recognition of the fact that full realization
of all economic, social and cultural rights will generally not be able to be achieved in a
short period of time. In this sense the obligation differs significantly from that contained
in article 2 of the International Covenant on Civil and Political Rights which embodies an
immediate obligation to respect and ensure all of the relevant rights. Nevertheless, the fact
that realization over time, or in other words progressively, is foreseen under the Covenant
should not be misinterpreted as depriving the obligation of all meaningful content. It is
on the one hand a necessary flexibility device, reflecting the realities of the real world and
the difficulties involved for any country in ensuring full realization of economic, social
and cultural rights. On the other hand, the phrase must be read in the light of the overall
objective, indeed the raison d’être, of the Covenant which is to establish clear obligations
for States parties in respect of the full realization of the rights in question. It thus imposes
an obligation to move as expeditiously and effectively as possible towards that goal.
Moreover, any deliberately retrogressive measures in that regard would require the most
careful consideration and would need to be fully justified by reference to the totality of the
rights provided for in the Covenant and in the context of the full use of the maximum
available resources”: UN Committee on Economic, Social and Cultural Rights, “General
Comment No. 3: The Nature of States Parties’ Obligations” (1990), UN Doc. HRI/GEN/
1/Rev.7, May 12, 2004, at [9]. See generally Chapter 1.5.4 at note 405 ff.
2534
The flexibility to implement the right to primary education is, however, significantly
constrained by Art. 14 of the Covenant. This provision requires state parties which do not
offer free and compulsory primary education upon accession to the Covenant to prepare
and file – within two years – a “detailed plan of action for the progressive implementation,
within a reasonable number of years, to be fixed in the plan, of the principle of compulsory
education free of charge for all [emphasis added]”: Economic, Social and Cultural
Covenant, at Art. 14. The supervisory committee has therefore held that “the plan must
specifically set out a series of targeted implementation dates for each stage of the
progressive implementation of the plan. This underscores both the importance and the
relative inflexibility of the obligation in question. Moreover, it needs to be stressed in this
regard that the State party’s other obligations, such as non-discrimination, are required to
be implemented fully and immediately”: UN Committee on Economic, Social and
Cultural Rights, “General Comment No. 11: Plans of Action for Primary Education”
(1999), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [10].
2535
“In its General Comment 3, the Committee confirmed that States parties have ‘a min-
imum core obligation to ensure the satisfaction of, at the very least, minimum essential
levels’ of each of the rights enunciated in the Covenant, including ‘the most basic forms of

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 4.8 e duca tion 751

meaning that any generalized failure to ensure access to them is prima facie
evidence of a breach of the Covenant,2536 poorer states may nonetheless seek to
justify their failure to provide elementary education by reference to a true lack
of resources.2537

education.’ In the context of article 13, this core includes an obligation: to ensure the right
of access to public educational institutions and programmes on a non-discriminatory
basis; to ensure that education conforms to the objectives set out in article 13(1); [and] to
provide primary education for all in accordance with article 13(2)(a)”: UN Committee on
Economic, Social and Cultural Rights, “General Comment No. 13: The Right to
Education” (1999), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [57].
2536
“Thus, for example, a State party in which any significant number of individuals is
deprived of essential foodstuffs, of essential primary health care, of basic shelter and
housing, or of the most basic forms of education is, prima facie, failing to discharge its
obligations under the Covenant. If the Covenant were to be read in such a way as not to
establish such a minimum core obligation, it would be largely deprived of its raison
d’être”: UN Committee on Economic, Social and Cultural Rights, “General Comment
No. 3: The Nature of States Parties’ Obligations” (1990), UN Doc. HRI/GEN/1/Rev.7,
May 12, 2004, at [10]. See generally Chapter 1.5.4 at note 440. Thus, for example, “[w]hen
discussing, for example, the report of Zaïre, the Committee made it clear that charging
fees for primary education is contrary to article 13, paragraph 2(a). A State party cannot
justify such a measure by referring to severe economic circumstances”: “The Right to
Education as a Human Right: An Analysis of Key Aspects: Background Paper submitted
by Fons Coomans,” UN Doc. E/C.12/1998/16, Sept. 29, 1998, at [5].
2537
“In order for a State party to be able to attribute its failure to meet at least its minimum
core obligations to a lack of available resources it must demonstrate that every effort has
been made to use all resources that are at its disposition in an effort to satisfy, as a matter
of priority, those minimum obligations. The Committee wishes to emphasize, however,
that even where the available resources are demonstrably inadequate, the obligation
remains for a State party to strive to ensure the widest possible enjoyment of the relevant
rights under the prevailing circumstances. Moreover, the obligations to monitor the
extent of the realization, or more especially of the non-realization, of economic, social
and cultural rights, and to devise strategies and programmes for their promotion, are not
in any way eliminated as a result of resource constraints”: UN Committee on Economic,
Social and Cultural Rights, “General Comment No. 3: The Nature of States Parties’
Obligations” (1990), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [10]–[11]. See gener-
ally Chapter 1.5.4 at note 441. The argument is sometimes also made that the Covenant’s
duty to provide primary education is an “economic right,” thus allowing less developed
countries legitimately to withhold it from non-citizens pursuant to Art. 2(3) of the
Covenant (“Developing countries, with due regard to human rights and their national
economy, may determine to what extent they would guarantee the economic rights
recognized in the present Covenant to non-nationals”: Economic, Social and Cultural
Covenant, at Art. 2(3)). In truth, the right to education ought not to be understood to be
only an economic right and would therefore not be subject to derogation by less devel-
oped countries under Art. 2(3). “The right to education . . . is the most outstanding
example of the ‘cultural rights’ category, although some scholars maintain that it is a
social right”: M. Nowak, “The Right to Education,” in A. Eide et al. eds., The Universal
Declaration of Human Rights: A Commentary 189 (1992), at 196. Yet the Committee on
Economic, Social and Cultural Rights has muddied the waters by asserting that the right
to education “has been variously classified as an economic right, a social right and a
cultural right. It is all of these”: UN Committee on Economic, Social and Cultural Rights,

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 752 4 r i gh t s of ref ug ees physic ally present

This flexibility would not, however, suffice to justify the Thai government’s
reluctance to educate Khmer refugees2538 or Iran’s pre-2015 policy of refusing
to allow the education of Afghan refugee children.2539 Because these policies
were intended to discourage refugee arrivals – and perhaps even indirectly to
refoule refugees already present – they failed to meet the stringent criteria for
justifiable non-compliance based purely on a genuine resource insuffi-
ciency.2540 But despite the clear recognition by the Committee on Economic,
Social and Cultural Rights that discrimination in accessing primary education
on the grounds of refugee (or “asylum-seeker”) status is impermissible,2541 a

“General Comment No. 11: Plans of Action for Primary Education” (1999), UN Doc.
HRI/GEN/1/Rev.7, May 12, 2004, at [2]. Nor has the Committee clarified its views, noting
ambiguously in 2017 “that whereas education has sometimes been described as an
economic right, the right of each child to education should be recognized by States
independently of the nationality or the legal status of his or her parents”: UN Committee
on Economic, Social and Cultural Rights, “Duties of States toward Refugees and Migrants
under the International Covenant on Economic, Social and Cultural Rights,” UN Doc. E/
C.12/2017/1, Mar. 13, 2017, at [8]. See Chapter 1.5.4 at note 432 ff. regarding the general
import of Art. 2(3) of the Economic Covenant.
2538
See text at note 2435. 2539 See text at notes 2433–2434.
2540
The truly exceptional nature of a legitimate failure to provide primary education can be
seen in the Committee on Economic, Social and Cultural Rights’ approach to Art. 14 of
the Covenant, under which states which do not already have universal and free primary
education are “required to adopt a plan of action within two years . . . This obligation is a
continuing one and States parties to which the provision is relevant by virtue of the
prevailing situation are not absolved from the obligation as a result of their past failure to
act within the two-year limit. The plan must cover all of the actions which are necessary in
order to secure each of the requisite component parts of the right and must be sufficiently
detailed so as to ensure the comprehensive realization of the right . . . A State party cannot
escape the unequivocal obligation to adopt a plan of action on the grounds that the
necessary resources are not available. If the obligation could be avoided in this way, there
would be no justification for the unique requirement contained in article 14 which
applies, almost by definition, to situations characterized by inadequate financial
resources”: UN Committee on Economic, Social and Cultural Rights, “General
Comment No. 11: Plans of Action for Primary Education” (1999), UN Doc. HRI/GEN/
1/Rev.7, May 12, 2004, at [8]–[9].
2541
“The Committee is deeply concerned by the information it has received concerning the
treatment of Vietnamese asylum-seekers in Hong Kong. It is particularly concerned
about the situation of the children and is alarmed by the statements made by the
Government that these children have no entitlement to the enjoyment of the right to
education or to other rights in view of their status as ‘illegal immigrants.’ The Committee
considers the situation inconsistent with obligations set forth in the Covenant”:
“Concluding Observations of the Committee on Economic, Social and Cultural Rights:
United Kingdom of Great Britain and Northern Ireland,” UN Doc. E/C.12/1994/19, Dec.
21, 1994. This is in line with the general position of the Committee that non-citizen status
is not usually to be understood as a legitimate ground for discrimination. “[T]he State
party’s other obligations, such as non-discrimination, are required to be implemented
fully and immediately”: UN Committee on Economic, Social and Cultural Rights,
“General Comment No. 11: Plans of Action for Primary Education” (1999), UN Doc.
HRI/GEN/1/Rev.7, May 12, 2004, at [10]. The content of this duty of non-discrimination

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 4.8 e duca tio n 753

differentiation between citizens and others found to be “objective and reason-

able” would not amount to discrimination2542 – thus opening up in principle
the possibility of a resource-based denial to refugee children of the educational
opportunities afforded citizens.
Under Art. 22 of the Refugee Convention, in contrast, there is no such
fungibility: the right of refugees to access elementary education is rather a
simple duty of result. While refugees are entitled to no greater access to
elementary education than is afforded nationals of the host country, they
may not be denied access to education on the grounds that nationals are
entitled to be admitted before any refugees are provided for. Unless an express
reservation of the kind entered by only eight states – Egypt, Ethiopia,
Malawi,2543 Monaco, Mozambique, Timor-Leste, Zambia, and Zimbabwe –
is in place, the duty to assimilate refugees to nationals under Art. 22(1) means
that the receiving country must share out whatever facilities and resources for
elementary education it has on terms of equality between refugees and citizens.
Thus, Cambodia’s refusal to provide any education facilities to urban refugee
children arguing the need first to meet the needs of citizen children2544
contravened the Refugee Convention. Under the theory of the Refugee
Convention, refugee children are not to be made to pay the price for resource
insufficiency in the host state. Whatever financial insufficiencies are present
are instead to be addressed by burden-sharing among states.2545

was subsequently elaborated to include access “to all, especially the most vulnerable
groups, in law and fact, without discrimination on any of the prohibited grounds . . .
The prohibition against discrimination enshrined in article 2(2) of the Covenant . . .
encompasses all internationally prohibited grounds of discrimination. The Committee
interprets articles 2(2) and 3 in the light of the UNESCO Convention against
Discrimination in Education, the relevant provisions of the Convention on the
Elimination of All Forms of Discrimination against Women, the International
Convention on the Elimination of All Forms of Racial Discrimination, the Convention
on the Rights of the Child and the ILO Indigenous and Tribal Peoples Convention, 1989
(Convention No. 169)”: UN Committee on Economic, Social and Cultural Rights,
“General Comment No. 13: The Right to Education” (1999), UN Doc. HRI/GEN/1/
Rev.7, May 12, 2004, at [6(b)(i)] and [31]. The Committee on Economic, Social and
Cultural Rights has moreover traditionally treated nationality as a prohibited ground of
discrimination. “Certainly, in so far as the Covenant establishes the rights of ‘everyone,’
non-nationals would have a right to the enjoyment of the minimum content of those
rights. Thus, in practice, the Committee will censure situations where aliens enjoy few
rights and are the object of exploitation”: Craven, ICESCR Commentary, at 174.
2542
See Chapter 1.5.5.
2543
Only Malawi’s reservation saved it from being in breach of Art. 22(1) when the number of
primary school teachers made available for Mozambican refugees resulted in a 1:100
teacher–student ratio: See text at note 2442.
2544
See text at note 2428.
2545
See in particular UNHCR Executive Committee Conclusion No. 59, “Refugee Children”
(1989), at [(f)], in which the Executive Committee “encouraged UNHCR to strengthen its
efforts in assisting host country governments to ensure the access of refugee children to

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 754 4 ri g ht s o f re f u g e e s p hy s i c a l l y p r e s e n t

In two respects, however, the Economic Covenant does add net value to the
duties set by Art. 22(1) of the Refugee Convention. First, it makes clear that
primary education must be free for all:

The nature of this requirement is unequivocal. The right is expressly

formulated so as to ensure the availability of primary education without
charge to the child, parents or guardians. Fees imposed by the
Government, the local authorities or the school, and other direct costs,
constitute disincentives to the enjoyment of the right and may jeopardize
its realization. They are also often highly regressive in effect. Their elimi-
nation is a matter which must be addressed by the required plan of action.
Indirect costs, such as compulsory levies on parents (sometimes portrayed
as being voluntary, when in fact they are not), or the obligation to wear a
relatively expensive school uniform, can also fall into the same
category.2546

Under this understanding, the barrier to accessing primary education posed by

the need for refugees (and others) in Kampala to fund tuition, uniforms, and
admission fees2547 is at odds with the requirements of Art. 13(2)(a) of the
Economic Covenant.
Second, the Committee has determined that “the form and substance of
education, including curricula and teaching methods, have to be acceptable (e.g.
relevant, culturally appropriate and of good quality) to students . . . [E]ducation
has to be flexible so it can adapt to the needs of changing societies and communi-
ties and respond to the needs of students within their diverse social and cultural
settings.”2548 This requirement might be invoked to question the purely academic
orientation of classes provided by Kenya to Sudanese refugee children given their
urgent need to learn basic survival skills and other practical matters2549

education, inter alia through the involvement of new organizations and governmental
and non-governmental donors, and where necessary through the incorporation of
appropriate arrangements in its programmes of assistance”; and Executive Committee
Conclusion No. 100 (2004), at [l], calling for “burden and responsibility sharing . . . to
improve primary education for refugees, achieve gender parity in education, and secure
funding, including through the private sector, to expand secondary, vocational and
tertiary education opportunities for refugees, especially adolescents.” The problem, of
course, is that developed countries have not always met this ethical responsibility in a
complete or timely way. UNHCR assembled advice on how best to meet this challenge in
J. Crisp et al. eds., Learning for a Future: Refugee Education in Developing Countries
(2001).
2546
UN Committee on Economic, Social and Cultural Rights, “General Comment No. 11:
Plans of Action for Primary Education” (1999), UN Doc. HRI/GEN/1/Rev.7, May 12,
2004, at [7].
2547
See text at note 2431.
2548
UN Committee on Economic, Social and Cultural Rights, “General Comment No. 13:
The Right to Education” (1999), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [6(c)–(d)].
2549
See text at note 2449.

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 4.8 e duca tio n 755

It is, however, more difficult to know the implications of the Committee’s

approach for how best to orient the curriculum when the refugee’s ultimate place
of residence is unknown. The UN has in some cases implemented a Western
curriculum – as in the case of Cambodian refugees in Thailand – in order to
prepare refugees for resettlement.2550 UNHCR traditionally advocated teaching
oriented to repatriation,2551 a policy favored by the parents of Burundian refugee
children in Tanzania.2552 But it arguably makes good sense to immerse refugees
in the culture and society of the host country at least where, as in the case of
refugees from Darfur in Chad,2553 there seems little likelihood of imminent
return. Indeed, recognizing that the majority of refugees are today unable to
return home within five years of departure, the UNHCR recently shifted away
from its traditional repatriation-oriented view to embrace a presumption in
favor of teaching based on the curriculum of the host country:

Use of country of asylum curriculum provides access to accredited, super-

vised and accountable education services. It is generally the most sustain-
able and protective option in the medium to long term, ensuring safe
access to examinations and certification, access to teaching and learning
materials, quality assurance and improved access to national education
services, including options to continue education at higher levels.2554

This agency policy weighs the pros and cons of reliance on each of the country
of origin and country of asylum curriculum,2555 and concludes that education
for return is not only inapposite to the needs of most modern refugees but also
that the practical challenges of attempting to orient teaching to the standards of
a foreign country may significantly compromise the quality of the education
offered.2556 Given the impossibility of knowing which solution – repatriation,
reestablishment, local integration, or resettlement – will ultimately eventuate,
the UNHCR’s recommendation that “the advantages of sustainable, safe access
to accredited certification and services associated with national systems out-
weigh the benefits of using the country of origin curriculum”2557 is compelling.
Indeed, as a matter of law, since short-term repatriation is statistically unlikely,

2550
See text at note 2448. 2551 Avery, “UNHCR Responds.” 2552 See text at note 2447.
2553
See text at note 2446.
2554
UNHCR, “Curriculum Choices in Refugee Settings,” July 2015, at 2. 2555 Ibid. at 3.
2556
See also in this regard UN Human Rights Council, “Right to education in emergency
situations,” UN Doc. A/HRC/8/10, May 20, 2008, at [90]–[91]: “The aim of bringing
about successful repatriation and reintegration . . . has led to an emphasis in the study
plans on all those aspects that recall the country of origin. This approach is not always
possible, as the relevant teaching material is often unobtainable or unsuitable . . . Poor use
of teaching materials may create problems relating to the accreditation of the teaching
received, with refugees . . . being accepted neither by the national education system of
their host country nor by that of their country of origin, creating a source of social
tension.”
2557
UNHCR, “Curriculum Choices in Refugee Settings,” July 2015, at 3.

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 756 4 ri g ht s o f re f u g e e s p hy s i c a l l y p r e s e n t

a focus on integration is very much adapted “to the changing societies and
communities and respon[sive] to the needs of students within their diverse
social and cultural settings.”2558 In line with Art. 13(3)–(4) of the Covenant,2559
however, refugee parents should be allowed to establish alternative
(repatriation-oriented) primary schools for their children if they wish, so
long as minimum qualitative standards are met and the host state is not
expected to fund those schools.
Given both the impossibility of knowing where refugees will ultimately live
and the frequent stress of being required immediately to undertake education
in a new language, there is a powerful logic to the provision of at least some
education in the refugees’ native language2560 – as is done in parts of Canada
and in some European countries, including Denmark and Sweden.2561
Turkey’s decision to authorize some 13,000 Syrian refugee teachers to teach
Syrian refugee children in their own language2562 was an especially laudable
policy shift, showing flexibility in a way that ensured the ability of children
quickly to resume their studies. There is, however, no consensus that govern-
ments have a duty to fund minority-language education.2563 While there would

2558
UN Committee on Economic, Social and Cultural Rights, “General Comment No. 13:
The Right to Education” (1999), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [6(c)–(d)].
2559
“The States Parties to the present Covenant undertake to have respect for the liberty of
parents and, when applicable, legal guardians to choose for their children schools, other
than those established by the public authorities, which conform to such minimum
educational standards as may be laid down or approved by the State . . . No part of this
article shall be construed so as to interfere with the liberty of individuals and bodies to
establish and direct educational institutions, subject always to the observance of the
principles set forth in paragraph 1 of this article and to the requirement that the education
given in such institutions shall conform to such minimum standards as may be laid down
by the State”: Economic, Social and Cultural Covenant, at Art. 13(3)–(4). More generally,
“States parties should not prevent migrants from maintaining their cultural links with
their countries of origin”: UN Committee on Economic, Social and Cultural Rights,
“General Comment No. 21: Right of Everyone to Take Part in Cultural Life (Art. 15, para.
1),” UN Doc. E/C.12/GC/21, Dec. 21, 2009, at [34].
2560
“[E]ducation must be culturally appropriate . . . [and] enable children to develop their
personality and cultural identity and to learn and understand cultural values and prac-
tices of the communities to which they belong, as well as those of other communities and
societies . . . States parties should pay particular attention to the protection of the cultural
identities of migrants, as well as their language”: UN Committee on Economic, Social and
Cultural Rights, “General Comment No. 21: Right of Everyone to Take Part in Cultural
Life (Art. 15, para. 1),” UN Doc. E/C.12/GC/21, Dec. 21, 2009, at [26], [34].
2561
See text at note 2458. 2562 See text at note 2459.
2563
“[A] State must respect the freedom of individuals to teach, for instance, a minority
language in schools established and directed by members of that minority. This does not
imply, however, that a State must allow the use of this language as the only medium of
instruction; this would be dependent on the educational policy of the State. As a
minimum, however, States must not frustrate the right of members of national, ethnic
or linguistic minorities to be taught in their mother tongue at institutions outside the
official system of public education. However, there is no State obligation to fund these

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 4.8 e duc ati on 757

arguably be such a duty if repatriation were probable,2564 the very nature of

refugee status (in which there is usually no such certainty, given the duty to
protect refugees for as long as there is a real chance of being persecuted in the
home state) argues against this being a universal position. As such, neither the
Irish decision to immerse Vietnamese refugee children in English-only
instruction2565 nor Lebanon’s provision of education to Syrian refugees in
only French or English2566 can be said to have contravened duties under the
Covenant.

4.8.2 Secondary and Other Education

While there was ready agreement that refugees should have unconditional
access to elementary education, the drafters of the Refugee Convention
debated at some length the extent to which refugees ought to be assisted to
access public secondary and other non-elementary forms of education. The
initial proposal on this issue assumed that refugees were already entitled to
enter higher institutions of learning, and thus needed only to be assimilated to
the citizens of most-favored states in order to have access to scholarship and
other funds to pay their tuition and fees.2567 The drafters were made aware of
“the difficulties which might arise in connection with the award of scholarships
to refugees. It seemed that most scholarships were administered by a founda-
tion and granted according to special provisions.”2568 Thus, the UN’s strategy
coming into the drafting process was predicated on the de jure accessibility of
non-elementary education to refugees, and sought simply to overcome the
practical impediments to higher education by enfranchising refugees within
the ranks of privileged non-citizens.
Sadly, most governments took a distinctly less liberal view of the right of
refugees’ access to advanced forms of education than they had with respect to
elementary education. While the German and Yugoslav delegations proposed

institutions”: “The Right to Education as a Human Right: An Analysis of Key Aspects:

Background Paper submitted by Fons Coomans,” UN Doc. E/C.12/1998/16, Sept. 29,
1998, at [15].
2564
See text at note 2548. 2565 See text at note 2460. 2566 See text at note 2461.
2567
“The [non-elementary] grades of education are generally speaking open to foreigners;
refugees will therefore receive the benefit of this circumstance if they are placed on the
same footing as other foreigners. [But] [s]ince refugees are in a precarious economic
position and the Government of their country of origin takes no interest in them, it would
be desirable to do more than merely accord them the ordinary rights enjoyed by
foreigners; otherwise in practice although secondary and higher education is open to
them, they will be unable, for want of money, to take advantage of it. For this reason it is
proposed to grant refugees the most favourable treatment accorded to nationals of a
foreign country”: Secretary-General, “Memorandum,” at 40.
2568
Statement of the Chairman, Mr. Chance of Canada, UN Doc. E/AC.32/SR.15, Jan. 27,
1950, at 9.

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 758 4 r i g ht s of re f u g e e s p hy s i c a l l y p r e s e n t

sweeping amendments that would have granted refugees full national treat-
ment in regard to advanced education,2569 the majority of representatives were
determined to limit the scope of entitlement. First, as in regard to elementary
education, it was made clear that only public forms of post-elementary educa-
tion are regulated by Art. 22(2)2570 – meaning, for example, that the issue of
access by refugees to informal, non-state-based programs in Lebanon2571 or to
NGO-operated vocational training in Burma,2572 Morocco,2573 Pakistan,2574
and South Africa2575 is not regulated by Art. 22(2). Second, while it was agreed
that the Refugee Convention should specifically regulate “access to stud-
ies,”2576 it was acknowledged that post-elementary educational institutions
would retain significant autonomy to make merit-based evaluations of a
refugee applicant’s qualifications for admission,2577 including the assessment

2569
Comparable proposals were tabled by Yugoslavia (UN Doc. A/CONF.2/31) and Germany
(UN Doc. A/CONF.2/45). “[T]he purpose of his amendment . . . was to grant refugees
facilities in higher as well as in elementary education. Such generosity would not only
benefit refugees, but also the countries in which they resided. Indeed, there was a kind of
moral obligation on public authority to help young people who, through no fault of their
own, had been placed in unfavourable conditions. Moreover, although assimilation was
difficult for the elderly, everything should be done to make it possible and easy for young
people to share fully in the life of the country of their adoption. They should consequently
be allowed access to all educational opportunities in their new homeland”: Statement of
Mr. von Trutzschler of the Federal Republic of Germany, UN Doc. A/CONF.2/SR.10, July
6, 1951, at 11.
2570
“In the United Kingdom, higher education was in the hands of schools and universities,
which were for the most part private institutions with their own regulations which could
not be overruled by a Convention, particularly where fees were concerned. If it was
understood that the provisions of paragraph 2 applied to public education only, his
delegation would see no objection to accepting that text”: Statement of Sir Leslie Brass of
the United Kingdom, UN Doc. E/AC.32/SR.15, Jan. 27, 1950, at 9. See also the remarks of
the representatives of Canada, France, Israel, and Belgium, ibid. at 9–10. The French
delegate thus concluded “that there could not be any doubt concerning the interpretation
of paragraph 2: it referred solely to public education and State scholarships. Private
institutions could obviously not be compelled against their will to admit refugees or to
grant them reduced rates”: Statement of Mr. Rain of France, ibid. at 10. At the Conference
of Plenipotentiaries, the British representative insisted that “[w]hat the Conference must
do was to bind states to give equality of treatment to refugees in the institutions over
which the State had control”: Statement of Mr. Hoare of the United Kingdom, UN Doc.
A/CONF.2/SR.10, July 6, 1951, at 14.
2571
See text at notes 2472–2473. 2572 See text at note 2476. 2573 Ibid.
2574
See text at note 2478. 2575 See text at note 2476.
2576
The Belgian representative to the Ad Hoc Committee “suggested that the words ‘access to
education’ be inserted . . . since access to education was a matter of considerable import-
ance”: Statement of Mr. Herment of Belgium, UN Doc. E/AC.32/SR.38, Aug. 17, 1950,
at 9.
2577
This was a matter of particular concern to the Belgian representative, who was anxious to
safeguard “the distinction [in Belgium] that study abroad qualified the candidate for
admission to schools of a certain grade only if such study was recognized by an examining
board as being equivalent to Belgian elementary or secondary education”: Statement of

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 4. 8 e duc at ion 759

of foreign credentials on the usual basis.2578 And third, governments were

emphatic that the right of access to post-elementary education could not be
invoked as an indirect means to insist on admission to a trade or profession for
which the education acquired is the usual prerequisite. As the French repre-
sentative explained,

[T]he two questions should not be linked together, since the practice of a
profession was dealt with in other articles. A scientific standpoint had to be
adopted in the present case, whereas the question of exercising a profes-
sion should be decided on a non-scientific basis. The fundamental purpose
of article [22(2)] was to prevent the son of a refugee from being forbidden
to enter a given faculty. For example, a student who became a refugee after
completing two years of medical studies should be allowed to continue
those studies.2579

Concluding the discussion on this point, the Chairman of the Ad Hoc

Committee observed that

it would seem to him an unhappy solution if the State of residence were to

refuse a refugee the right to obtain an education only on the ground that he
would be unable as an alien to practice his profession. He might wish to get
an education merely for his private scientific enjoyment, or he might wish
to emigrate to another country and there to practice his profession. It was
also possible that a person studying some science was not eligible for
citizenship at the time when he was a student, for instance because he
was not able to support himself; but he might nevertheless be interested in
getting an education and a degree, hoping to be naturalized afterwards,
whereupon he would be able to use the degree. So, in any event, the
question of education and degrees covered by article [22(2)] should not

Mr. Herment of Belgium, UN Doc. E/AC.32/SR.37, Aug. 16, 1950, at 25. In response, the
French representative opined that “the instances cited by the Belgian representative were
of minor importance and an explicit reservation could not in any way reflect badly upon
the country making it”: Statement of Mr. Juvigny of France, ibid. at 26. But in the end, it
was agreed that so long as the assessment “was one not of nationality but rather of
qualifications,” it did not infringe the Convention: Statement of the Chairman, Mr.
Larsen of Denmark, ibid. at 25.
2578
Statement of Mr. van Heuven Goedhart of UNHCR, UN Doc. A/CONF.2/SR.35, July 25,
1951, at 6. The General Comment on the cognate right in the Economic, Social and
Cultural Covenant allows for screening “by reference to all their relevant expertise and
experience”: UN Committee on Economic, Social and Cultural Rights, “General
Comment No. 13: The Right to Education” (1999), UN Doc. HRI/GEN/1/Rev.7, May
12, 2004, at [19].
2579
Statement of Mr. Juvigny of France, UN Doc. E/AC.32/SR.37, Aug. 16, 1950, at 26. Thus,
Grahl-Madsen concludes that “[o]nce a child of a refugee has been given the benefit of
Article 22(2), he should continue to [enjoy that right] until he has finished the school to
which he has been admitted, and until his diploma etc. has been superseded by another
one of higher standing”: Grahl-Madsen, Commentary, at 86.

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be combined with the exercise of liberal professions dealt with in article

[19].2580

But by far the most significant decision taken was to reject the duty to
assimilate refugees to most-favored foreigners, and instead to grant them
post-elementary education rights only to the extent these are enjoyed by “aliens
generally.” Because Art. 22(2) regulates “the remission of fees and charges and
the award of scholarships,” governments attending the Conference of
Plenipotentiaries resurrected concerns which had been overcome in the Ad
Hoc Committee2581 that the provision would require the assimilation of
refugees to students for whom special arrangements had been made under
bilateral funding agreements.2582 For example, the United Kingdom had made
special provision to grant scholarships to Polish citizens,2583 while Venezuela
had particular scholarship arrangements with the “Bolivar countries, with
which it was linked by ties of history and consanguinity.”2584 The general
sense was that states should be free to make such special arrangements without
fear that they were thereby indirectly assuming significant obligations to fund
the education of refugees. On the initiative of the British government,2585 the
2580
Statement of the Chairman, Mr. Larsen of Denmark, UN Doc. E/AC.32/SR.37, Aug. 16,
1950, at 27–28. See also Statement of Mr. Henkin of the United States, ibid. at 28: “[I]t was
better to allow an opportunity for study to a refugee, even if afterwards he could not
practise a liberal profession, rather than prevent him from obtaining an education at all.”
2581
In response to arguments for redrafting to accommodate states anxious to preserve the right
to award special bilateral and other scholarships, the United States’ representative insisted that
“he did not think that preferential treatment had been excluded from the most favourable
treatment clause and would not like that interpretation adopted. If the Benelux countries, for
example, were not prepared to accord their special treatment to refugees, he would prefer it to
be stated in the form of a reservation”: Statement of Mr. Henkin of the United States, ibid. at
24. See also Statement of Mr. Weis of the IRO, ibid.; and the Chairman, Mr. Larsen of
Denmark, ibid. This led to the adoption of the more generous standard, under which states
agreed to “accord to refugees the most favorable treatment accorded to nationals of a foreign
country with respect to education other than elementary education and, in particular, as
regards access to studies, the remission of fees and charges and the award of scholarships”:
“Report of the Ad Hoc Committee on Refugees and Stateless Persons, Second Session,” UN
Doc. E/1850, Aug. 25, 1950 (Ad Hoc Committee, “Second Session Report”), at 21.
2582
“[I]n France there was a distinction between scholarships awarded under bilateral
treaties, and those by which refugees could benefit . . . [A]lthough the French
Government was prepared to give refugees all possible assistance in that direction, it
would not go beyond the measures already taken”: Statement of Mr. Rochefort of France,
UN Doc. A/CONF/2/SR.10, July 6, 1951, at 14.
2583
Statement of Sir Leslie Brass of the United Kingdom, UN Doc. E/AC.32/SR.37, Aug. 16,
1950, at 23; repeated in the Statement of Mr. Hoare of the United Kingdom, UN Doc. A/
CONF.2/SR.10, July 6, 1951, at 14.
2584
Statement of Mr. Perez Perozo of Venezuela, UN Doc. E/AC.32/SR.37, Aug. 16, 1950,
at 23.
2585
“In the United Kingdom Government’s view the legal effect of paragraph 2 would be to
impose upon it the obligation of treating all refugees as favourably as it had done one
particular group. The countries linked by the Brussels Treaty were also endeavouring to

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 4.8 e duc atio n 761

required standard of treatment was therefore reduced to “treatment as favor-

able as possible, and, in any event, not less favorable than that accorded to
aliens generally in the same circumstances.”2586 Moreover, while there is
nothing in the drafting history to suggest an intention by states to apply this
lower standard of treatment to the other matters regulated by Art. 22(2) –
specifically, access to post-elementary education and the recognition of aca-
demic credentials2587 – the text as adopted nonetheless makes clear that on
these questions also, the duty of states is simply to treat refugees at least as well
as they do aliens in general.
Under the Refugee Convention, then, there is no basis to contest Tanzania’s
requirement that refugees be admitted to post-elementary education only as part
of the overall 2 percent of places assigned to non-citizens,2588 South Africa’s high
transcript accreditation fees, applicable to all whose qualifying education was
acquired abroad,2589 or the British rule that assimilates refugee claimants to
overseas applicants for the purposes of assessing university tuition fees.2590 On

extend reciprocal arrangements between them to a large number of fields. It might be that
schemes for the exchange of students and for scholarships would be developed. There
again, such special arrangements would be inapplicable to refugees . . . [H]e could not
help but feel that it would be preferable to redraft the text so as to make it generally
acceptable rather than to adopt it as it stood and oblige a number of governments to enter
reservations”: Statement of Mr. Hoare of the United Kingdom, UN Doc. A/CONF.2/
SR.10, July 6, 1951, at 14–15.
2586
Indeed, it was only when reminded by the UNHCR of the way in which this level of
attachment had ordinarily been framed elsewhere in the Convention that the reference to
“treatment as favourable as possible” was included in Art. 22(2): Statement of Mr. van
Heuven Goedhart of UNHCR, UN Doc. A/CONF.2/SR.35, July 25, 1951, at 5.
2587
The French representative, for example, had made clear that “[t]he reservations made by
his delegation concerned the award of scholarships to aliens, and in that connection it
should be noted that in France all aliens had access to all educational establishments,
except for certain large schools which prepared candidates for posts from which aliens
were excluded . . . although they might, in certain conditions, be admitted with alien
status”: Statement of Mr. Rochefort of France, UN Doc. A/CONF.2/SR.10, July 6, 1951,
at 17.
2588
See text at note 2467. It has been argued that “[g]iven that by virtue of Art. 22, para. 2
refugees have to be granted treatment as favourable as possible, no quota [may] be
applied with regard to refugees where otherwise the capacity of universities would not
be fully used, i.e. quotas [may] not be applied vis-à-vis refugees with the sole aim of
limiting the number of foreigners at a given university or faculty [emphasis added]”:
Zimmermann and Dörschner, “Article 22,” at 1039. If the quotas target refugees, this is
quite correct. If aimed at non-citizens in general, however, Art. 22(2) would be unlikely to
provide any relief to refugees simply caught by the broader net; at most, states would need
specifically to consider their exemption in good faith from the general quota. A quota
system aimed at non-citizens in general would, however, have to pass muster under Arts.
13(2)(c) of the Economic Covenant and 26 of the Civil and Political Covenant.
2589
See text at note 2469.
2590
See text at note 2487. The view that the provisions of Art. 22(2) on remission of fees and
charges are trumped by Art. 29’s general duty to treat refugees on par with nationals in

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the other hand, Jordan’s inflexible insistence on original documentation for

enrollment by Syrian refugees in secondary schools2591 may well breach Art.
22(2) since the “treatment . . . not less favorable than that accorded to aliens
generally in the same circumstances [emphasis added]” standard requires that
refugees be exempted from general requirements which by virtue of their refugee-
hood they are not able to fulfill2592 – a real prospect given the inability to secure
original documents in the context of urgent flight and inability to access home
country services from abroad. Australia’s policy of denying tuition or fee sup-
port2593 to recognized refugees granted a “temporary protection” visa, but not to
other refugees (or to resident non-citizens in general),2594 is an even clearer
example of breach given the duty to grant all persons who are in fact
Convention refugees at least the same access to education (other than elementary
education) as is enjoyed by aliens generally. And Iran’s policy of requiring Afghan
refugees to renounce their refugee status in order to access university2595 is an
especially egregious contravention of Art. 22(2), though the ban on refugees
studying some thirty subjects if admitted2596 – because that ban applies to all
non-citizens – is not at odds with Convention requirements.
Because of the various limitations inherent in Art. 22 of the Refugee
Convention,2597 refugees seeking to benefit from other than elementary edu-
cation will in many cases do well to invoke Art. 13(2) of the Economic
Covenant.2598 Under clauses (b) and (c), “secondary” and “higher” education

relation to fiscal charges (see Zimmermann and Dörschner, “Article 22,” at 1040) may be
questioned in light of the much more specific nature of Art. 22(2).
2591
See text at note 2468. 2592 Refugee Convention, at Art. 6. See Chapter 3.2.3.
2593
“The broad term ‘scholarships’ [in Art. 22(2)] includes generalised State sponsored
financial aid programmes for students. This is confirmed by the equally authentic
French term ‘bourses d’études’ which is generally understood to encompass such pro-
grammes. Thus, where such financial aid is generally granted to aliens in the same
circumstances, refugees are also entitled to have access to them”: Zimmermann and
Dörschner, “Article 22,” at 1041.
2594
See text at notes 2488–2489. 2595 See text at note 2470. 2596 Ibid.
2597
The weakness of the Refugee Convention on this point is clear from the framing of
UNHCR Executive Committee Conclusion No. 37, “Central American Refugees and the
Cartagena Declaration” (1985), at [(p)], in which the Executive Committee “[r]ecognized
the need of refugee children to pursue further levels of education and recommended that
the High Commissioner consider the provision of post-primary education within the
general Program of assistance [emphasis added].”
2598
“All people under the jurisdiction of the State concerned should enjoy Covenant rights.
That includes asylum seekers and refugees”: UN Committee on Economic, Social and
Cultural Rights, “Duties of states toward refugees and migrants under the International
Covenant on Economic, Social and Cultural Rights,” UN Doc. E/C.12/2017/1, Mar. 13,
2017, at [3]; see also UN Committee on Economic, Social and Cultural Rights, “General
Comment No. 20: Non-discrimination in Economic, Social and Cultural Rights (Art. 2,
para. 2),” UN Doc. E/C.12/GC/20, July 2, 2009, at [3], [30] (“The preamble stresses the
‘equal and inalienable rights of all’ and the Covenant expressly recognizes the right of
‘everyone’ to the various Covenant rights such as . . . the right to . . . education . . . The

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 4 .8 e duc at ion 763

must be made “generally available and accessible to all [emphasis added]” –

meaning, for example, that the European Union’s decision to grant adult
refugees educational opportunities only to the same extent provided to “third
country nationals legally resident”2599 is of doubtful legality. Less developed
countries enjoy more leeway in this regard since they may rely on the
Economic Covenant’s general duty of non-discriminatory2600 progressive
implementation to justify their failure fully to enfranchise refugees and other
non-citizens2601 – thus arguably legitimating Kenya’s decision when faced with
a decline in international funding to charge refugees at Kakuma Camp a fee of
$10 per month to attend secondary school.2602 More generally, because educa-
tion at these levels (in contrast to elementary education) need not be immedi-
ately free of charge,2603 an equitable system of cost-recovery from non-citizens
who have yet to contribute to the public funding base for advanced education
might be found to be justifiable.2604
In addition to its main value for refugees as setting the general rule that post-
elementary education must be made “generally available and accessible to all,”
the formulation of post-elementary education rights in the Economic
Covenant is helpful to refugees in three other ways. First, it makes clear that
technical and vocational education is within the scope of guaranteed “second-
ary education”2605 – thus calling into question the logic of the European

Covenant rights apply to everyone including non-nationals, such as refugees [and]

asylum-seekers”).
2599
See text at note 2479.
2600
“[E]ducational institutions and programmes have to be accessible to everyone, without
discrimination, within the jurisdiction of the State party”: UN Committee on Economic,
Social and Cultural Rights, “General Comment No. 13: The Right to Education” (1999),
UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [6(b)]. On the duty of progressive imple-
mentation, see generally Chapter 1.5.4.
2601
Note, however, that “[t]he realization of the right to education over time, that is
‘progressively,’ should not be interpreted as depriving States parties’ obligations of all
meaningful content. Progressive realization means that States parties have a specific and
continuing obligation ‘to move as expeditiously and effectively as possible’ towards the
full realization of article 13”: UN Committee on Economic, Social and Cultural Rights,
“General Comment No. 13: The Right to Education” (1999), UN Doc. HRI/GEN/1/Rev.7,
May 12, 2004, at [44].
2602
See text at note 2466.
2603
In regard to secondary and higher education, the relevant obligation is simply to increase
accessibility “by the progressive introduction of free education [emphasis added].” While
this duty does not allow for inaction, neither does it set an immediate obligation of result.
2604
See Chapter 1.5.5 at note 468 ff. If, however, tuition or similar educational fees are
deductible expenses or otherwise wholly or partially rebated to citizens of the asylum
state, refugees must receive the same benefit by virtue of Art. 29 of the Refugee
Convention: see Chapter 4.5.2.
2605
“Technical and vocational education (TVE) forms part of both the right to education and
the right to work (art. 6(2)). Article 13(2)(b) presents TVE as part of secondary education,
reflecting the particular importance of TVE at this level of education”: UN Committee on

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 764 4 ri g h t s of r e f u g e es ph y s i c a l l y p r e s e nt

Union’s decision to grant states complete discretion about whether or not to

give refugees awaiting status verification access to vocational training.2606
Second, whereas the Refugee Convention authorizes merit-based assessments
to govern access to all post-elementary education, Art. 13(2)(b) of the
Covenant requires that access to secondary education – as distinguished
from higher (e.g. college and university) education2607 – be subject to no
such evaluations. The Committee on Economic, Social and Cultural Rights
has made clear that “[t]he phrase ‘generally available’ signifies . . . that
secondary education is not dependent on a student’s apparent capacity or
ability.”2608 And third, it is particularly interesting that Art. 13(2)(e) goes
some distance to meeting the original concern of the drafters of the Refugee
Convention, namely that legal access to education would be meaningless to
most refugees if not provided with the financial wherewithal to pay their
tuition and other fees.2609 Under the Economic Covenant, governments
commit themselves (“shall”) to establish “an adequate fellowship system”
applicable at all levels of education – primary, secondary, higher, and funda-
mental. Of critical importance to refugees, “[t]he requirement that ‘an
adequate fellowship system shall be established’ should be read together
with the Covenant’s non-discrimination and equality provisions, meaning
that the fellowship system should enhance equality of educational access for
individuals from disadvantaged groups.”2610 As such, to the extent that
refugees are forced to rely on an inferior scholarship system in order to
access any level of education, they may invoke Art. 13(2)(e) to contest their
exclusion.2611 Because whatever education a state chooses to offer or subsid-
ize – including, for example, vocational training – must be offered in a way
that complies with the duty of non-discrimination, it is not open to a state to

Economic, Social and Cultural Rights, “General Comment No. 13: The Right to
Education” (1999), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [15]. Such education
is not clearly excluded from the requirements of the Refugee Convention, though it is not
explicitly referenced there. In Grahl-Madsen’s view, “[t]he phrase [‘education other than
elementary education’ in the Refugee Convention] comprises general higher education as
well as vocational training”: Grahl-Madsen, Commentary, at 87.
2606
See text at note 2481.
2607
Access to higher education is governed by Art. 13(2)(c), which does allow restrictions to
access “on the basis of capacity.”
2608
UN Committee on Economic, Social and Cultural Rights, “General Comment No. 13:
The Right to Education” (1999), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [13].
2609
See text at note 2567 ff.
2610
UN Committee on Economic, Social and Cultural Rights, “General Comment No. 13:
The Right to Education” (1999), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [26].
2611
Thus, for example, the Committee on Economic, Social and Cultural Rights critiqued the
Canadian practice of excluding refugees not yet in receipt of permanent resident status
from eligibility for post-secondary education loan programs: “Concluding Observations:
Canada,” UN Doc. E/C.12/1/Add.31 (1998), at [37], [39], [49].

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 4. 9 do c u m e n tat i o n o f i d en t i t y a n d st a t u s 765

deny such a benefit unless it complies with the usual “objective and reason-
able” differentiation standard.2612

4.9 Documentation of Identity and Status

Whatever rights are held by refugees may be of little value if their refugee status
cannot be proved. Documentary proof of a refugee’s lawful presence in a state
party is often critical to ensuring even such basic interests as freedom from
detention and refoulement:

For a refugee, the lack of identity documents may be far more than a source of
inconvenience. In almost all countries an alien must be able to prove not only
his identity, but also that his presence in the country is lawful. In some
countries aliens without appropriate documentation are subject to detention
and sometimes even to summary expulsion. Such measures are particularly
serious for a refugee, for whom they could involve the risk of being returned
to his country of origin. Even where the consequences of being without
documentation are less drastic, the refugee, in order to benefit from treatment
in accordance with internationally accepted standards, needs to be able to
establish vis-à-vis government officials not only his identity, but also his
refugee character. Due to circumstances in which they are sometimes forced
to leave their home country, refugees are perhaps more likely than other
aliens to find themselves without identity documents. Moreover, while other
aliens can turn to the authorities of their country of origin for help in
obtaining documents, refugees do not have this option.2613

Recognizing this concern, Rwanda is an example of a state that has worked

with UNHCR to issue identity documents to refugees in both camps and cities
as a means of enhancing their access to employment, financial institutions, and
other services that were previously restricted.2614 While most refugees do have
access to state-issued documentation that confirms both their personal identity
and legal status,2615 there are three major types of exception.
First, some host states refuse to issue identity documents to disfavored
groups of refugees. Thailand, for example, does not issue “asylum seeker
certificates” to Burmese, Lao Hmong, and North Korean refugees who are
treated simply as “displaced persons” entitled to no documentation of their
refugee status.2616 Yemen’s provision of identity documents to Somali but not
2612
See Chapter 1.5.5.
2613
UNHCR, “Identity Documents for Refugees,” UN Doc. EC/SCP/33, July 20, 1984
(UNHCR, “Identity Documents”), at [2]–[3].
2614
Relief Web, “Joint Verification Exercise of Refugees and Asylum Seekers Residing in
Rwanda Launched,” Feb. 12, 2018.
2615
UNHCR, “Identity Documents,” at [12].
2616
Human Rights Watch, “Ad Hoc and Inadequate: Thailand’s Treatment of Refugees and
Asylum Seekers,” Sept. 2012, at 87.

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 766 4 rights of r efugees physically present

Ethiopian refugees has prevented the latter population from traveling freely
without risking extortion and arbitrary arrest at the hands of security
forces.2617 Nepal similarly refuses to provide identity documents to Tibetan
refugees, with the result that the majority of the Tibetan refugee population
remains “at risk of financial penalties . . . for irregular entry or presence in the
State party, detention, deportation, and refoulement.”2618 More generally,
authorities in some states fail to provide identity documentation until and
unless an asylum-seeker’s refugee status has been formally verified.2619
Second and more commonly, asylum states may set administrative require-
ments that in substance make it difficult if not impossible for refugees to obtain
documentation of their identity and status. The system that prevailed in
Pakistan until 1992 required Afghan refugees who wished to procure an
identity document (“Shanakti pass”) to provide a recommendation from one
of seven registered Afghan political parties – resulting in the denial of docu-
mentation to many non-partisan Afghan refugees in Pakistan.2620 While
Pakistan has more recently issued Proof of Registration cards to refugees
registered with the UNHCR, the continuous cycle of expiration and short-
term extensions of the documents has generated uncertainty and attracted
accusations of forced rather than voluntary repatriation.2621 Mali has failed to

2617
Although many non-Somalis did receive UNHCR-issued documents certifying their
status as refugees, such documents have been described as protecting against refoulement
but “good for little else. The lack of any valid government-issued identification docu-
ments severely limits non-Somali refugees’ ability to assert basic entitlements as recog-
nized refugees in Yemen. As one Ethiopian refugee in Sana’a told Human Rights Watch,
‘The UNHCR ID has no value. The police look at it and say, ‘What is this? It is just paper,’
and throw it away. We can do nothing with it. Anything you need an ID card for, they do
not accept it’”: Human Rights Watch, “Hostile Shores: Abuse and Refoulement of Asylum
Seekers and Refugees in Yemen,” Dec. 2009, at 41–42.
2618
UN Human Rights Committee, Concluding Observations on the Second Periodic Report
of Nepal, UN Doc. CCPR/C/NPL/CO/2, Apr. 15, 2014, at [14].
2619
UNHCR, “Information Note on Implementation of the 1951 Convention and the 1967
Protocol relating to the Status of Refugees,” UN Doc. EC/SCP/66, July 22, 1991, at [38].
2620
Letter from Mr. Ray Fell of UNHCR Islamabad to Ms. Nausheen Ahmad of Shirkat Gah,
Aug. 18, 1994, cited in N. Ahmad, International Academy of Comparative Law National
Report for Pakistan (1994).
2621
Following the most recent expiration (and repatriation deadline) on December 31, 2017,
the government granted a last-minute thirty-day extension of the validity of Proof of
Registration (PoR) cards. A sixty-day extension followed this expiration, and then, two
further extensions through June and September 2018. The UNHCR assists in repatriating
Afghan refugees pursuant to a trilateral agreement between the agency, Pakistan, and
Afghanistan; those who agree to return are provided US$200: A. Gul, “Pakistan Extends
Afghan Refugees’ Stay for a Month,” Voice of America, Jan. 3, 2018; S. Shalmani,
“Uncertainty Grips Afghan Refugees in Pakistan as Repatriation Deadline Nears,” Arab
News, Jan. 18, 2018; A. Shahzad, “Pakistan Extends Afghan Refugees’ Stay for only 60
Days,” Reuters, Feb. 1, 2018; “Pakistan Grants ‘Interim’ Extension of Three Months to 1.4
million Afghan Refugees,” Tehran Times, July 3, 2018.

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 4.9 do cumenta tion o f identit y and st at us 767

register untold numbers of Mauritanian refugees born in Mali by insisting on

the speedy registration of births – a requirement that is often difficult for
refugees living in remote communities to meet.2622 In Lebanon, Syrian refu-
gees registered with UNHCR must pay a $200 annual renewal fee to maintain
their documentation that enables them to avoid arrest and deportation, as well
as to access critical rights, including healthcare. Refugees who cannot afford
the registration fee2623 may remain in the country only if able to find a
Lebanese sponsor,2624 a situation that exposes them to sexual and other
forms of exploitation at the hands of their employers.2625 And while South
African law provides for the issuance of a formal “asylum-seeker permit” to all
refugees arriving in its territory, the closure of half of its Refugee Reception
Centres has put those unable to travel to the remaining facilities at risk of
detention, deportation, and refoulement.2626

2622
This is despite the fact that the parents of those affected have been recognized as refugees:
“‘When a child is born [in Mali], the birth needs to be declared within one month . . .
After one month, it becomes complicated and has to go through the courts,’ . . . But
because these children were born to refugee parents, many of whom live in remote
communities, they never went through this legal process”: K. Höije, “Stateless in the
Sahel,” IRIN News, June 18, 2015. The failure to issue proper identity documents not only
renders affected refugees unable to receive state services such as healthcare and other
social protection services, but also impacts on access to education and even the right to
marry: ibid.
2623
Only 22 percent of Syrian refugees in Lebanon over age fifteen are formally registered:
UNICEF, UNHCR, and WFP, “Vulnerability Assessment of Syrian Refugees in Lebanon”
(2019), at 32.
2624
Human Rights Watch, “Lebanon: Residency Rules put Syrians at Risk,” Jan. 12, 2016.
2625
H. Haid, “Lack of Legal Status is a Nightmare for Syrians in Lebanon,” Middle East Eye,
Feb. 27, 2018. See also Norwegian Refugee Council, “Syrian Refugees’ Right to Legal
Identity: Implications for Return,” Jan. 2017.
2626
“As at the beginning of 2011 there were six [Refugee Reception Centres] in the country,
namely Johannesburg, Pretoria, Cape Town, Durban, Musina and Port Elizabeth. Since
then three of those six – Johannesburg, Port Elizabeth and Cape Town – have been closed
either completely or to new applications by the Department of Home Affairs (DHA)”:
Minister of Home Affairs v. Somali Association of South Africa Eastern Cape, Dec. No.
831/2013 (SA SCA, Mar. 25, 2015), at [5]. As a result, persons seeking to renew their
permits (which expire every three to six months) must travel hundreds (or at times,
thousands) of kilometers to one of the three remaining centers. Moreover, due to an
endemic lack of resources and the resulting backlogs in processing times, the time
required to process a claim to refugee status may take five years or longer: L. Hamilton,
“How Home Affairs has been Ignoring 2 Court Orders, Putting Asylum Seekers at Risk,”
News24, Apr. 4, 2018. Officials have moreover at times declined to extend permits for
those seeking judicial review of the rejection of their claims. The officials in question took
the view that after the exhaustion of internal, departmental remedies and pending an
exhaustion of judicial review, a Refugee Reception Officer had no power to extend a
temporary permit: Cishahayo Saidi v. Minister of Home Affairs, [2018] ZACC 9 (SA CC,
Apr. 24, 2018), at [4]. The Constitutional Court ordered that this discretion be exercised
in order to protect refugees: ibid.

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 768 4 ri g ht s of r e f u g e es p hy s i c a l l y p r e s e n t

A third concern is that even where some form of documentation is provided

to refugee claimants, it may not be generally recognized within the community.
In Norway, for example, even though the Schengen uniform-format residence
cards issued to refugee claimants are “proof of lawful residence,”2627 they do
not facilitate access to a driver’s license or bank cards; nor do they enable
recipients to “purchase real property, raise bank loans [or] have jobs requiring
a certificate of good conduct.”2628 The documentation issued by Ecuador to
refugee claimants lacks the usual National Civil Registry identification num-
ber, and is thus often rejected by potential employers.2629 Similarly, Jamaica’s
failure to issue identification documents except for the Convention Travel
Document, which is “not well known” to the population, has been credited
with creating obstacles to being able to seek work.2630 In Kenya, not even
government officials have always respected refugee identification cards.
During a police campaign of mass arrests of refugees and foreigners in 2014,
security forces “confiscated both expired and valid UN refugee documents, and
in some cases have torn them up.”2631 Forced to pay exorbitant sums for release
following the destruction of their documents, many urban refugees were
compelled to return to the remote camps to avoid subjection to further
bribes.2632 Thai “asylum seeker certificates” are similarly “of limited value,
providing no employment authorization and carrying no legal weight when
police stop certificate holders on the street or in their home.”2633
Perhaps ironically, problems of rights abuse may also be facilitated by the
issuance of documentation of identity and status to refugees. Of particular
concern, Bangladesh has partnered with UNHCR to implement a digital
system to issue refugee identity cards to Rohingya refugees. But the system
has raised concerns that the collection of biometric and other data may
facilitate discrimination against the refugees, including insistence on unlawful
detention and the denial of basic services2634 – and perhaps even their unlawful
2627
Immigration Appeals Board v. A, B, and C, Case No. 2017/260, HR-2017-2078-A (Nor.
SC, Oct. 31, 2017), at [48].
2628
Such privileges are afforded only upon issuance of a Convention travel document
pursuant to Art. 28: ibid. at [45].
2629
R. Zetter and H. Ruaudel, “Refugees’ Right to Work and Access to Labor Markets: An
Assessment: Part II: Country Cases (Preliminary),” Sept. 2016, at 25.
2630
Committee on Economic, Social and Cultural Rights, Concluding Observations on the
Combined Third and Fourth Periodic Reports of Jamaica, adopted by the Committee at
its fiftieth session (29 April–17 May 2013), UN Doc. E/C.12/JAM/CO/3-4, June 10, 2013,
at [10]; UN Human Rights Committee, Concluding Observations of the Human Rights
Committee, 103rd session, UN Doc. CCPR/C/JAM/CO/13, Nov. 17, 2011, at [12].
2631
Human Rights Watch, “Kenya: End Abusive Round-Ups,” May 12, 2014. 2632 Ibid.
2633
Human Rights Watch, “Ad Hoc and Inadequate: Thailand’s Treatment of Refugees and
Asylum Seekers,” Sept. 2012, at 87.
2634
“[The collection of biometric data for online use] can digitally enable discrimination.
Rohingya have to follow a ‘code of conduct’ that forces them to stay inside the camps and
limits their interaction with locals. If the database of Rohingya people were to be leaked,

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 4.9 d ocumenta tio n of identit y and st at us 769

expulsion. Indeed, the Bangladeshi Minister of Industry has openly proclaimed

that his country “has no plan to give any refugee status to Rohingya,” and that
“the reason behind the biometric process is to keep record of Rohingya. We
want them to go back to their own place.”2635

Refugee Convention, Art. 27 Identity Papers

The Contracting States shall issue identity papers to any refugee
in their territory who does not possess a valid travel document.

Under the early generations of refugee treaties, refugees were issued a single
identity document – originally known as a “Nansen passport” in honor of the
first High Commissioner for Refugees, later simply as a “travel document” –
which served both to facilitate international travel by refugees, and also to
identify its holder as a refugee authorized to reside in the asylum country.2636
For reasons elaborated below,2637 the drafters of the 1951 Refugee Convention
elected to provide themselves with some discretion to refuse to issue refugees
with international travel documents on national security or public order
grounds, as well as to standardize the format of those documents. A separate
draft article was therefore proposed to stipulate the duty to provide refugees
with a more general form of identification, essentially for use within the asylum
country.2638
The working drafts of what became Art. 27 assumed that the general identity
document would, as under the earlier treaties, only be issued to “refugees
authorized to reside” in the state party, in consequence of which the duty
under Art. 27 would ordinarily be met by issuance of a residence card to the
refugee.2639 This proposal did not survive the scrutiny of the Ad Hoc

hacked, or shared (for example, with the Myanmar government), it could make it easier
to deny Rohingya access to basic services, or target them, or discriminate against them.
For example, Bangladeshi mobile phone operators have been banned from selling SIM
cards to Rohingya refugees. Biometric data could in theory be shared with mobile phone
operators to enforce the ban. Thirdly, errors and omissions can be harder to resolve.
Unlike passwords, fingerprints can’t be changed. Once collected, it may be virtually
impossible to get rid of them or correct them. Biometric devices are not 100 percent
accurate – and it’s unclear what action could be taken if mistakes are made”: Z. Rahman,
“Irresponsible Data? The Risks of Registering the Rohingya,” IRIN News, Oct. 23, 2017.
2635
Ibid., quoting Minister of Industry Amir Hossain Amu.
2636
UNHCR, “Identity Documents,” at [4]. 2637 See Chapter 6.6.
2638
“The ‘identity papers’ with which Art. 27 deals are for internal use, as contrasted with
‘travel documents’ to be used for journeys abroad. It is a paper certifying the identity of a
refugee”: Robinson, History, at 133.
2639
“The High Contracting Parties undertake to issue identity papers (residence card, identity
card, etc.) to refugees (and stateless persons) authorized to reside in their territory”:
Secretary-General, “Memorandum,” at 41. The commentary noted that “[i]t is the
practice to issue identity papers, under various designations, which serve both as identity
cards and residence permits. This practice, which meets an essential requirement, should

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 770 4 ri g ht s of r e f u g e es p hy s i c a l l y p r e s e n t

Committee, however, which insisted that not all refugees would necessarily be
granted a right of residence in the state party2640 (and indeed, no binding duty
to grant permanent residence was made part of the Convention).2641 Yet, as the
French representative observed, there was nonetheless a need to document the
status of persons
whose presence was merely tolerated on a temporary basis following
an illegal crossing of the frontier. The latter only enjoyed the right of
asylum until such time as their position had been regularized by the
issuance of a temporary and later of a permanent residence permit.
While . . . such permits would in practice serve them primarily as
identity cards, there was a secondary aspect of the problem, since a
variety of documents could serve as proof of identity. The residence
permit was thus only secondarily an identity card; it primarily consti-
tuted permission to reside in the reception country [emphasis
added].2642
As this makes clear, the purpose of what became Art. 27 was not to document
identity in some abstract sense,2643 but rather to document – albeit on a
provisional basis – the refugee status of the person concerned.2644 Indeed,
be generalized”: ibid. The relevant provision in the French working draft for the
Convention (draft Art. 16) was identical: France, “Draft Convention,” at 7.
2640
“Mr. Rain [of France] urged that the Committee could not decide on a text for the
question of residence permits until a satisfactory formula on the right of residence had
been adopted”: Statement of Mr. Rain of France, UN Doc. E/AC.32/SR.15, Jan. 27, 1950,
at 13. See also Statement of Mr. Henkin of the United States, ibid. at 14, who went so far as
to propose “that in order to avoid any misinterpretation the first part of the article should
be drafted to read: ‘Without prejudice to the right of the High Contracting Parties to
regulate the right of entry for permanent residence in the country.’” The same view
prevailed at the Conference of Plenipotentiaries, where the Dutch representative insisted
that the official record confirm that “[t]he High Commissioner had made it clear that the
duty imposed on States by article [27] in no way impaired their right to control the
admission and sojourn of refugees”: Statement of Baron van Boetzelaer of the
Netherlands, UN Doc. A/CONF.2/SR.11, July 9, 1951, at 17.
2641
See Chapter 7.4.
2642
Statement of Mr. Rain of France, UN Doc. E/AC.32/SR.15, Jan. 27, 1950, at 13.
2643
The Canadian representative, for example, initially expressed some discomfort at Art.
27’s duty to issue a certificate “guaranteeing re-admission to its territory”: Statement of
Mr. Winter of Canada, UN Doc. E/AC.32/SR.38, Aug. 17, 1950, at 23. Canada agreed at
the Conference of Plenipotentiaries that it would meet its Art. 27 obligations by issuance
of an “immigrant’s record of landing,” reflecting the then-prevailing practice of assimi-
lating refugees immediately upon arrival: Statement of Mr. Chance of Canada, UN Doc.
A/CONF.2/SR.11, July 9, 1951, at 17.
2644
But see J. Vedsted-Hansen, “Article 27,” in A. Zimmermann ed., The 1951 Convention
Relating to the Status of Refugees and its 1967 Protocol: A Commentary 1165 (2011)
(Vedsted-Hansen, “Article 27”), at 1176: “Protection will be . . . better safeguarded if the
identity document includes information about the holder’s refugee status; however, Art.
27 does not require the inclusion of status information in the identity papers issued to
refugees.”

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 4.9 d ocumentation of identity and s tatus 771

the revised formula which emerged from a Working Group of the Committee
seems explicitly to have been based on the French delegate’s approach:
The Contracting States shall issue identity papers to any refugee in their
territory who does not possess a valid passport issued pursuant to Article
[28, i.e. a Convention Travel Document].2645
This formula, which was adopted by the Ad Hoc Committee without com-
ment,2646 is noteworthy in two respects.
First, in contrast both to the working drafts and to all prior refugee treaties,
the identity document in question is not to be withheld until a refugee is
“lawfully staying” in the asylum country. The drafting history leaves no room
for doubt that this formulation was intended to enfranchise asylum-seekers
immediately upon their arrival.2647 Indeed, at the Second Session of the Ad
Hoc Committee, the Belgian representative questioned the intent behind the
amendment of Art. 27 to require the issuance of an identity certificate to “any
refugee in their territory.” He inquired

whether the authors of the draft Convention would have any objection to
the insertion of the word “lawfully” before the words “in their territory.”
He failed to see how any contracting party could agree to issue identity
papers to refugees who were unlawfully in its territory or who were there
on an essentially temporary basis. He assumed that the text referred to
refugees who had been granted permission to reside in a country.2648

The response was swift and unequivocal. The American representative

observed that “the Committee had agreed to extend the provisions of article
2645
“Decisions of the Working Group Taken on 9 February 1950,” UN Doc. E/AC.32/L.32,
Feb. 9, 1950, at 10.
2646
UN Doc. E/AC.32/SR.23, Feb. 10, 1950, at 8.
2647
See Robinson, History, at 134: “Contrary to other articles, Art. 27 deals with ‘any refugee
in their territory,’ thus indicating verbally that neither residence nor even lawful presence
is required. All that is necessary is that the refugee be physically in the territory of the
given state”; Weis, Travaux, at 213: “The provision applies to all refugees physically
present in the territory, whether legally or illegally there”; and Grahl-Madsen,
Commentary, at 115: “The identity papers envisaged in Article 27 shall not only be
available to refugees lawfully in the territory, but also to those whose entry was illegal
or whose position has not been regularized, however temporary their stay”; Vedsted-
Hansen, “Article 27,” at 1172: “States are required to issue identity papers under [Art. 27]
to every refugee who is physically present in their territory, regardless of the formal basis or
the temporary nature of the refugee’s presence . . . Thus, refugees are entitled to have an
identity document issued under Art. 27, whether their presence in the territory is legal or
illegal, and whether or not they have regularized their position with respect to the
authorities of that country.” Yet despite this clear and correct position, Vedsted-
Hansen suggests that the duty to provide documents to “asylum applicants” is “more
complex”: ibid. – a view that is difficult to reconcile to both his and the general view that
only physical presence is required, and that legality/illegality of presence is not relevant.
2648
Statement of Mr. Herment of Belgium, UN Doc. E/AC.32.SR.38, Aug. 17, 1950, at 23.

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 772 4 ri g ht s o f re f u g e e s p hy s i c a l l y p r e s e n t

[27] to all refugees, so that a refugee illegally present in any country, though
still subject to expulsion, would be free from the extra hardships of a person in
possession of no papers at all.”2649 Mr. Weis of the IRO insisted that “the
intention of the Committee had been that every refugee should be provided
with some sort of document certifying his identity, without prejudice to the
right of the Government of any country in which he might be illegally present
to expel him.”2650 And most forcefully of all, the French representative

thought that was undoubtedly what the members of the Committee had in
mind. When an alien whose position was irregular entered a country and
the authorities of that country decided not to expel him immediately, he
would be given a provisional document which he could produce if, say, he
were stopped in the street; such a document would be purely provisional
and its owner’s stated identity might even prove to be false, but he would
not be entirely an outcast and he would hold a provisional document
enabling him to be identified.2651

The Belgian delegate accepted these explanations.2652 The scope of the benefi-
ciary class for Art. 27 was only once more alluded to during the drafting
debates, resulting in a confirmation that the duty to issue identity papers
“could not be refused to anyone, whatever his status or the legality of his
presence in a given territory . . . [T]he identity papers . . . were not a legal
document, but merely a temporary certificate of identity, in no way prejudging
the future position of a refugee, or even his actual status as a refugee.”2653 It is
thus not permissible for states to withhold issuance of the certificate of identity
until refugee status assessment is completed.2654 A state party must rather
provide a refugee claimant without delay identification that attests to her
lawful, if still provisional, status in the country.
Art. 27’s goal of ensuring that all refugees2655 arriving in a state party receive
provisional proof of their refugee status is affirmed by the second important
change adopted by the Ad Hoc Committee. Rather than positing a general duty
to issue identity documents, the text as adopted by the Committee required
states to provide such papers only to refugees not in possession of a
Convention Travel Document (CTD) (“to any refugee in their territory who

2649
Statement of Mr. Henkin of the United States, ibid. at 24.
2650
Statement of Mr. Weis of the IRO, ibid. at 24.
2651
Statement of Mr. Juvigny of France, ibid. at 24.
2652
Statement of Mr. Herment of Belgium, ibid. at 24.
2653
Statement of Mr. Juvigny of France, UN Doc. E/AC.32/SR.42, Aug. 24, 1950, at 23.
2654
See text at note 2619.
2655
“[E]very refugee was intended to benefit from this provision”: UNHCR, “Amicus curiae
of the United Nations High Commissioner for Refugees (UNHCR) on the interpretation
and application of Article 25, Article 27 and Article 28 of the 1951 Convention relating to
the Status of Refugees,” Dec. 22, 2016, at [27].

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 4.9 d ocumentation of id entity and status 773

does not possess a valid passport issued pursuant to Article [28]”).2656 A CTD,
issued under Art. 28, need only be issued to refugees “lawfully staying in their
territory,”2657 meaning in most cases refugees whose status has been verified
and who have been granted the right to remain in the asylum country.2658 Once
in possession of the more authoritative CTD, the need for provisional docu-
mentation of refugee status would logically disappear – the holder of the CTD
could use the document for travel, but it is also more than sufficient to
substantiate the individual’s status as a refugee for all domestic purposes, in
line with pre-Second World War practice.2659 Jamaica’s decision to rely on
CTDs as the sole official form of refugee identification2660 is thus lawful only if
it exercises its discretion under Art. 28(1) of the Convention2661 to provide a
CTD also to refugees not yet lawfully staying in its territory.
At the Conference of Plenipotentiaries, however, a drafting change was
made that, if construed literally and out of context, has the potential to obscure
the true purpose of Art. 27. On the motion of the delegate from France, the
phrase “issued pursuant to article 28” was deleted as “superfluous in view of
paragraph 2 of article 28.”2662 The latter paragraph requires that travel docu-
ments issued to refugees under earlier refugee treaties “be recognized and
treated by the Contracting States in the same way as if they had been issued
pursuant to this article.”2663 The evident concern of the French representative
was to avoid the need to provide identity documents to the large number of
refugees who already held a travel document certifying their refugee status,
albeit not one issued under the 1951 Refugee Convention.
But the text as adopted has been considered by some commentators to have
much more drastic consequences. Specifically, because Art. 27 now requires
identity documents to be issued only to refugees “who do not possess a valid
travel document,” it is sometimes argued that the only duty is to provide

2656
UN Doc. E/AC.32/SR.23, Feb. 10, 1950, at 8. But “[i]f the Contracting State declines to
issue CTDs referring to the exceptions in Article 28, the state nonetheless remains obliged
to issue identity papers in accordance with Article 27”: UNHCR, “Amicus curiae of the
United Nations High Commissioner for Refugees (UNHCR) on the interpretation and
application of Article 25, Article 27 and Article 28 of the 1951 Convention relating to the
Status of Refugees,” Dec. 22, 2016, at [55].
2657
See generally Chapter 6.6. 2658 See Chapter 3.1.4 at note 202.
2659
See text at note 2636. There is, however, one circumstance in which this analysis may not
hold. Because a state has the discretion (but not the duty) to provide even persons whose
refugee status has not been formally verified with a CTD (see Chapter 6.6), some persons
in possession of a CTD may not, in fact, be recognized by the granting state as
Convention refugees. In practical terms, however, it is unlikely that a state would both
grant an individual a refugee travel document and simultaneously treat him or her as a
non-refugee.
2660
See text at note 2630. 2661 See Chapter 6.6 at note 1024 ff.
2662
Statement of Mr. Rochefort of France, UN Doc. A/CONF.2/SR.35, July 25, 1951, at 9.
2663
Refugee Convention, at Art. 28(2).

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 774 4 ri g ht s of re f u g e e s p hy s i c a l l y p r e s e n t

documentation of identity, not of identity as a refugee.2664 Thus, it is said that a

refugee who still possesses the passport of his or her country of origin, or who
holds a visa from a third state, need not be provided with identity documenta-
tion under Art. 27.2665 Yet it is manifestly clear that documents of this kind – in
contrast to either the CTD or equivalent refugee travel documents issued
under earlier treaties intended by the drafters to limit the Art. 27 duty – in
no way serve the purpose of Art. 27, namely to establish the refugee’s provi-
sional entitlement to be treated as a refugee. As the UNHCR has insisted, “[t]he
purpose of Article 27 . . . is to safeguard the interests of refugees and . . . [to]
document the refugee status of the person concerned.”2666
Yet the linguistic confusion is such that it has at times been suggested even
by UNHCR itself that “[i]dentity papers which show only the name, the date
and place of birth, and the current address of the refugee would satisfy the
literal requirements of Article 27.”2667 The agency clearly understands that
documents of this kind have little if any value as a tool of international

2664
See Grahl-Madsen, Commentary, at 113: “The identity papers to which Article 27 refers
. . . are simply papers which show the identity of the refugee[], without conferring on him
any rights at all”; and Vedsted-Hansen, “Article 27,” at 1166–1167, suggesting that Art. 27
is intended simply to respond to the “hardship of having no identity document at all” and
as “an element of registration programmes,” though noting obliquely that in the latter
context “whether the identity paper issued provides specific information about the
refugee status of the holder may have particular relevance.”
2665
“The provision applies only if the refugee does not possess a valid travel document,
whether issued by the State in which he or she finds themself or by another State; it may
even be their national passport”: Weis, Travaux, at 213. “The expression [‘travel docu-
ments’] – as used in Article 27 – probably also applies to aliens’ passports, if duly visaed. It
is important to note that Article 27 does not require that the travel document must be
issued by the State in whose territory the refugee is present, and upon whom the duty to
issue an identity paper would devolve if the refugee possessed no valid travel document.
In other words, the State in whose territory a refugee finds himself is not obliged to issue
identity papers if the refugee possesses a valid travel document, issued by the authorities
of that State or of a foreign State”: Grahl-Madsen, Commentary, at 116. “[A]ny travel
document held by the refugee may exclude the application of Art. 27, whether that travel
document has been issued by the host State or by another State . . . It has been argued that
even a national passport issued by the refugee’s country of origin may disqualify the
holder from being entitled to identity papers under Art. 27”: Vedsted-Hansen, “Article
27,” at 1173.
2666
UNHCR, “Amicus curiae of the United Nations High Commissioner for Refugees
(UNHCR) on the interpretation and application of Article 25, Article 27 and Article 28
of the 1951 Convention relating to the Status of Refugees,” Dec. 22, 2016, at [22]. See also
UNHCR Executive Committee Conclusion No. 93, “Conclusion on Reception of
Asylum-Seekers in the Context of Individual Asylum Systems” (2002), at [b] (“both
male and female asylum-seekers should be registered and be issued appropriate docu-
mentation reflecting their status as asylum-seeker, which should remain valid until the
final decision is taken on the asylum application”).
2667
UNHCR, “Identity Documents,” at [9].

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 4.9 d ocumentation of id entity and status 775

protection,2668 and appreciates the vital importance of the real purpose of Art.
27 – namely, documenting on an interim basis the holder’s status as an asylum-
seeker.2669 Yet because of its failure to interpret the text in its context, UNHCR
feels compelled to state its case as a recommendation,2670 rather than an
assertion of legal entitlement under Art. 27. In its Conclusion No. 35, the
Executive Committee
Recommended that asylum applicants whose applications cannot be decided
without delay be provided with provisional documentation sufficient to
ensure that they are protected against expulsion or refoulement until a decision
has been taken by the competent authorities with regard to their
application.2671
Similarly, in Conclusion No. 91, the Executive Committee merely
[r]equests States, which have not yet done so, to take all necessary measures to
register and document refugees and asylum-seekers on their territory as
quickly as possible upon their arrival, bearing in mind the resources available,
and where appropriate to seek the support and co-operation of UNHCR.2672

2668
“For purposes of international protection, however, it is often essential that such identity
papers also indicate the holder’s refugee status. Proof of refugee status may be of vital
importance, for example, in situations where refugees are caught up in police operations
directed against aliens whose presence in the country is considered unlawful”: ibid. More
generally, the Executive Committee has “[a]cknowledge[d] the importance of registration
as a tool of protection, including protection against refoulement, protection against
forcible recruitment, protection of access to basic rights, family reunification of refugees
and identification of those in need of special assistance, and as a means to enable the
quantification and assessment of needs and to implement the appropriate durable solu-
tions”: UNHCR Executive Committee Conclusion No. 91, “Conclusion on Registration
of Refugees and Asylum-Seekers” (2001), at [(a)].
2669
“During the period preceding the determination of refugee status, asylum applicants
clearly have the same need for appropriate identity documents as recognized refugees”:
UNHCR, “Identity Documents,” at [18]. And expressly recalling Executive Committee
Conclusion No. 91, the Executive Committee “note[d] the many forms of harassment
faced by refugees and asylum seekers who remain without any form of documentation
attesting to their status [emphasis added]”: UNHCR Executive Committee Conclusion
No. 102, “General Conclusion on International Protection” (2005), at [(v)].
2670
“The risk of expulsion or refoulement may indeed be greater for the asylum applicant –
whose status has not yet been regularized and whose entitlement to refugee status has yet
to be determined – than for the recognized refugee. It follows therefore that the asylum-
seeker should be provided with documentation adequate to ensure that his provisional
right to protection against refoulement will be respected and that he will be treated in
accordance with his status as a person who may in fact be a refugee [emphasis added]”:
UNHCR, “Identity Documents,” at [18].
2671
UNHCR Executive Committee Conclusion No. 35, “Identity Documents for Refugees”
(1984), at [(d)].
2672
UNHCR Executive Committee Conclusion No. 91, “Conclusion on Registration of
Refugees and Asylum-Seekers” (2001), at [g]. The Executive Committee has called for
interstate cooperation for “the provision of support to host countries, especially

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 776 4 ri g ht s of re f u g e e s p hy s i c a l l y p r e s e n t

In truth, however, these statements largely reflect the essence of the legal
duty of states pursuant to Art. 27. There was absolutely no intention at the
Conference of Plenipotentiaries to depart from the purposive interpretation
adopted by the Ad Hoc Committee; to the contrary, the French representative’s
suggestion to amend the language to its present form was explicitly predicated
solely on concern to take account of “travel documents issued by countries
which, though non-Contracting States, nevertheless wished to accept refugees
outside the framework of the Convention.”2673 In other words, provisional
refugee identification would not be required by persons in possession of a
travel document issued to refugees (under the Convention or otherwise), since
a person in possession of a refugee travel document already had sufficient
proof of his status as a refugee. But asylum-seekers – whether present legally or
illegally, whether their claims were verified or not – are entitled to certification
of their provisional right to be treated as refugees. This duty is equally applic-
able to states that do not routinely assess refugee status, requiring the issuance
of documentation to all those treated by domestic law as refugees – including,
for example, Mauritian refugees born on Malian territory.2674 This obligation
must, of course, be implemented without discrimination2675 – meaning that
Nepal’s denial of identification to Tibetan refugees,2676 Yemen’s withholding
of documentation from Ethiopian refugees,2677 and Thailand’s rule against
documenting refugees from Burma, Laos, and North Korea2678 are unlawful.
There is no particular form which the identity document must take.2679
Thus, it is perfectly lawful for Norway to choose simply to issue generic
Schengen cards to refugees, since these cards document the holder’s lawful
presence as a refugee in the country.2680 But because the duty to issue refugee
status identification under Art. 27 is mandatory (“shall issue . . . to any refugee

developing countries, to assist the early and effective registration and documentation of
refugees and asylum seekers”: UNHCR Executive Committee Conclusion No. 100,
“Conclusion on International Cooperation and Burden and Responsibility Sharing in
Mass Influx Situations” (2004), at [(j)].
2673
Statement of Mr. Rochefort of France, UN Doc. A/CONF.2/SR.35, July 25, 1951, at 9.
2674
See text at note 2622. Of note, the UNHCR’s Executive Committee “encourages States to
make accessible civil registration,” including by “putting in place measures, as appropri-
ate, to ensure that rural or remote locations are reached”: UNHCR, Executive Committee
Conclusion No. 111, “Conclusion on Civil Registration” (2013), at [d].
2675
See Chapter 3.4. 2676 See text at note 2618. 2677 See text at note 2617.
2678
See text at note 2616.
2679
“Identity cards did not necessarily mean identity cards like those issued in European
countries; they might simply consist of a document showing the identity of the refugee”:
Statement of Mr. Herment of Belgium, UN Doc. A/CONF.2/SR.11, July 9, 1951, at 17.
The Canadian government, for example, indicated that it planned simply to use its
ordinary immigrant landing documents for this purpose: Statement of Mr. Chance of
Canada, ibid.
2680
See text at note 2627. See also Immigration Appeals Board v. A, B, and C, Case No. 2017/
670, HR-2017-2078-A (Nor. SC, Oct. 31, 2017), at [48].

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 4. 9 do c u m e n tat i o n o f i d en t i t y a n d st a tus 777

in their territory”),2681 each state must conceive of a fair and functional process
for the issuance of refugee identification documents.2682 As such, when South
Africa closed many of its Refugee Reception Centres, forcing refugees to travel
hundreds, and in some cases, thousands of kilometers to secure documenta-
tion,2683 it failed to honor its Convention obligations. So too did Lebanon
when it imposed a fee for the issuance of documentation that is beyond the
means of many refugees, knowing that the only alternative is the often abusive
and exploitative process of private sponsorship.2684 And both Pakistan’s for-
mer process of conditioning the issuance of refugee documentation to Afghan
refugees on an affirmative recommendation from an Afghan political party2685
and even its current system of issuing constantly expiring, short-term docu-
mentation to refugees place unwarranted barriers to securing the documents
that refugees are owed.
Perhaps most important, whatever documentation a state issues to refugees
must be effective in practice as a means of identifying refugees as rights-
holders, and in particular as being entitled to be present and to enjoy other
refugee rights in the country.2686 As observed by the South African Supreme
Court of Appeal,

Until the issuance of . . . as asylum seeker permit . . . a person is considered

an illegal foreigner and subject to apprehension, detention, and deport-
ation . . . [N]o person may employ . . . or save for humanitarian assistance
and aid, abet, assist, enable or in any manner help an illegal foreigner . . .
An asylum seeker permit is thus essential to enable an asylum seeker to
live, work and function in South Africa prior to the determination of his or
her status.2687

While the sort of refugee identification card issued by Rwanda – generally

understood to entitle the bearer to access the full range of services and
2681
Cishahayo Saidi v. Minister of Home Affairs, [2018] ZACC 9 (SA CC, Apr. 24, 2018), at
[42]–[43].
2682
“[T]he format and content of the identity papers issued to refugees must be such as to
comply with the documentary requirements generally prevailing in the country in which
the refugee is present”: Vedsted-Hansen, “Article 27,” at 1174.
2683
See text at note 2626. 2684 See text at note 2623. 2685 See text at note 2620.
2686
“According to the travaux préparatoires on Article 27, the identity card primarily
constitutes permission to reside in the reception country. Its real purpose is to ensure
the practical exercise of this right where such right already exists”: UNHCR, “Amicus
curiae of the United Nations High Commissioner for Refugees (UNHCR) on the inter-
pretation and application of Article 25, Article 27 and Article 28 of the 1951 Convention
relating to the Status of Refugees,” Dec. 22, 2016, at [22].
2687
Minister of Home Affairs v. Somali Association of South Africa Eastern Cape, Dec. No.
831/2013 (SA SCA, Mar. 25, 2015), at [3]. While making a somewhat narrower point, the
Constitutional Court agreed that “[w]ithout a temporary permit, there is no protection.
This runs counter [to] the very principle of non-refoulement”: Cishahayo Saidi v. Minister
of Home Affairs, [2018] ZACC 9 (SA CC, Apr. 24, 2018), at [30].

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 778 4 ri g ht s o f re f u g e e s p hy s i c a l l y p r e s e n t

employment2688 – is ideal, the core duty is simply to ensure that the documen-
tation enables a refugee to access whatever rights are in fact owed to her. As
such, it is not impermissible for Ecuador to issue refugee claimants with
documents bearing identity numbers not in the National Civil Registry and
which potential employers are thus often reluctant to accept,2689 since refugees
only acquire the right to engage in employment once they are “lawfully
staying” in the host country.2690 On the other hand, Art. 27 is not respected
in Kenya or Thailand, where the documentation issued to refugees does not
protect them from frequent arrests at the hands of the police.2691 Much less, of
course, is there any warrant for Bangladesh to treat the issuance of documen-
tation to Rohingya refugees as a means to facilitate governmental efforts to
force them back to Burma.2692
In sum, any person claiming refugee status in the territory of a state party
and not in possession of a refugee travel document is, pursuant to Art. 27,
entitled to receive a provisional refugee identity certificate to use until his or
her claim to refugee status is finally refused, or until it is accepted and
entitlement to a refugee travel document established. This is consistent with
the basic approach of the Convention under which a state party has essentially
two choices when an asylum-seeker arrives on its territory. It may exercise its
right under Art. 32 to expel an asylum-seeker not yet “lawfully in” its terri-
tory,2693 if this can be done consistent with its duty to respect a refugee’s
acquired rights – including most importantly the duty to avoid the prospect of
refoulement, directly or indirectly;2694 or it may provide the asylum-seeker with
provisional documentation of refugee status, which entitles that person to be
treated as a refugee pending the completion of any procedures established to
verify claims to refugee status. Precisely because some refugee rights inhere by
virtue of either simple physical presence,2695 or lawful or habitual presence
(e.g. while undergoing status determination or in receipt of temporary protec-
tion), yet before refugee status is formally acknowledged,2696 Art. 27 is the vital
link between theory and reality. If a person legally entitled to the benefit of
refugee rights cannot document his or her entitlement to same, the Refugee
Convention is of little practical value. The right to receive provisional refugee
identification set out in Art. 27 is therefore the essential key to enabling
2688
See text at note 2614. 2689 See text at note 2629. 2690 See Chapter 6.1.1.
2691
See text at notes 2631 and 2633. 2692 See text at notes 2634–2635.
2693
See Chapters 3.1.3 and 5.1. 2694 See Chapter 4.1.
2695
These include the rights elaborated in this chapter: protection from refoulement; freedom
from arbitrary detention or penalization for illegal entry; physical security rights; access
to the necessities of life; basic property rights; the right to family unity; freedom of
thought, conscience, and religion; access to basic primary education; and the right to
administrative assistance from host state authorities.
2696
These rights are elaborated in Chapter 5, and include protection from expulsion; internal
freedom of movement; the right to engage in self-employment; protection of intellectual
property rights; and assistance to access the courts.

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 4.10 judicial and administrative assistance 779

refugees to in fact benefit from the protections which states have determined
should be their due.

4.10 Judicial and Administrative Assistance

As important as it is to insist that persons claiming to be refugees are both
identified and provisionally treated as entitled to the protection of the
Convention, the practical reality is that refugees will often be unable to enforce
their rights without assistance from state or international authorities. As
described above,2697 the early generations of refugee accords were predicated
on a recognition that “the characteristic and essential feature of the problem
was that persons classed as ‘refugees’ have no regular nationality and are
therefore deprived of the normal protection accorded to the regular citizens
of a State.”2698 Like all non-citizens, refugees were essentially at the mercy of
the institutions of a foreign state. In contrast to other foreigners, however,
refugees clearly were not in a position to seek the traditional remedy of
diplomatic protection from their country of nationality.
The High Commissioners appointed by the League of Nations were there-
fore authorized to name the equivalent of consular representatives to state
parties.2699 These representatives not only issued a variety of forms of documen-
tation required by refugees to effectuate their rights, but also “[s]upport[ed] the
various requests submitted by refugees to the authorities of their place of
residence.”2700 While the formal system of internationally rendered diplo-
matic protection for refugees came to an end with the onset of the Second
World War, “in a number of countries certain quasi-consular functions . . .
continued to be rendered to refugees and displaced persons, first by repre-
sentatives of the PCIRO, and subsequently by the IRO. If such persons came
within the mandate of IRO, the representatives of IRO, where necessary, lent
2697
See Chapter 1.3.
2698
“Report by the Secretary-General on the Future Organisation of Refugee Work,” LN
Doc.1930.XIII.2 (1930), at 3.
2699
Weis writes that “the question of administrative assistance to refugees arose with the
establishment of the Soviet Union. As long as the Soviet Union was not recognized, the
Czarist consuls continued to render administrative assistance to Russian nationals and
refugees. With the recognition of the Soviet Union, these consuls lost their official
character. They continued, however, to render assistance to refugees and it was then
required that the documents and certifications issued by them should be countersigned
by the local representative of the League of Nations High Commissioner for Refugees.
The Arrangement concerning the Legal Status of Russian and Armenian Refugees of 30
June 1928 recommended that the League of Nations High Commissioner for Refugees
[should], by appointing representatives in the greatest possible number of countries,
render the services enumerated in the Arrangement, in so far as such services [did] not
come within the exclusive competence of the national authorities”: Weis, Travaux, at
203–204.
2700
United Nations, “Statelessness,” at 44.

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 780 4 ri g h t s of r e f u g e es ph y s i c a l l y p r e s e nt

them assistance in a variety of forms, ranging from material aid to interven-

tion with the authorities of the country of residence or with the Consuls of the
countries of immigration.”2701
In contrast, the Statute of the United Nations High Commissioner for
Refugees, drafted contemporaneously with the Refugee Convention,2702 does
not mandate the organization to provide refugees with consular assistance of
this kind. More generally, the Statute does not grant UNHCR any clear power
to champion the enforcement of refugee rights. The agency is authorized to
engage in the “promotion” of “the admission of refugees”;2703 it may moreover
seek authority from specific states to engage in consular-type work under its
mandate to “promot[e] through special agreements with Governments the
execution of any measures calculated to improve the situation of refugees . . .
[and to] assist[] governmental and private efforts to promote . . . assimilation
within new national communities.”2704 At most, the agency may assert its
general responsibility to “supervise the application” of the Refugee
Convention.2705 But unlike its institutional predecessors, UNHCR is not
specifically tasked to act as agent for the enforcement of refugee rights.2706 It
was rather the expectation of the drafters of the Refugee Convention that
primary responsibility to assist refugees to enforce their rights should fall to
the state parties themselves:

[E]ven if the Government of the country of asylum grants the refugee a

status which ensures him treatment equivalent to or better than that
enjoyed by foreigners, it does not follow that on that account alone he
will be allowed to enjoy the rights granted to him. If the refugee is actually
to enjoy these rights, he must obtain the assistance of an authority which
will perform for him the services performed by national authorities in the
case of persons with a nationality. In the absence of an international
authority, the High Contracting Parties must appoint a national authority
which will furnish its assistance to refugees and deliver the documents they
require.2707

2701
Ibid. at 46.
2702
The UNHCR Statute was adopted by the General Assembly as Res. 428(V), Dec. 14, 1950
(UNHCR Statute).
2703
UNHCR Statute, at Art. 8(d). 2704 Ibid. at Art. 8(b)–(c).
2705
Ibid. at Art. 8(a), and Refugee Convention, Art. 35. This authority was not, however,
intended to displace the primary role of states in oversight of the Refugee Convention. See
J. Hathaway, “Who Should Watch Over Refugee Law?,” (2002) 14 Forced Migration
Review 23, and more generally Chapter 1.5.2.
2706
Thus, for example, when Swaziland threatened the (unlawful) deportation of refugees
because they had exercised their international legal entitlement to internal freedom of
movement, UNHCR could do little more than request “an extended grace period” within
which to arrange alternative protection for the refugees: “Unhappy Refugees to Stay a
Little Longer,” Times of Swaziland, Aug. 2, 2002.
2707
Secretary-General, “Memorandum,” at 43–44.

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 4.10 j u di ci al an d admi n i s t r ative assistanc e 781

In practice, refugees have often looked to their host country’s courts to

secure respect for their rights. Even in states where the courts have no clear role
in refugee status determination, judges have at times intervened to ensure the
protection of refugees. In one Japanese decision, for example, the court initially
ordered the government to pay ¥9,500,000 in damages to a Burmese refugee in
respect of what it determined to have been his unlawful detention subsequent
to a legally erroneous rejection of his protection claim.2708 While the decision
was successfully appealed on the basis that the required standard of wrongful-
ness for the award of damages against the state had not been proved,2709 the
underlying finding that the detention was in breach of the refugee’s rights was
not disturbed. And in India, despite that country’s failure to accede to the
Refugee Convention or Protocol, judges have shown remarkable creativity in
crafting remedies for refugees that effectively vindicate Convention rights.2710
In other contexts, however, host governments may deny refugees access to
their legal system. Verdirame reported an extreme case, in which the Kenyan
government, acting through UNHCR and its implementing partner, simply
left a refugee community to administer justice for itself, effectively ignoring its
responsibility to ensure that the rights of refugees on its territory were
respected:

In theory, Kenyan law applies to Kakuma Camp. In practice, this seldom

happens. In Kakuma, refugees have been allowed to establish their own
“court” system which is funded by [UNHCR’s implementing partner],
Lutheran World Federation . . .
Punishment meted out by these courts in camps . . . includes flogging.
During a visit in July 1997, the obvious human rights implications of such
decisions were brought to the attention of agency staff. This concern was
dismissed with the observation that “this is their culture” . . .
The population of Kakuma Camp, although living on the territory of
Kenya, is administered by humanitarian organizations, independently of

2708
The award included ¥8,000,000 in respect of emotional distress suffered during the period
of unlawful detention, and a further ¥1,500,000 to cover his legal fees: Z v. Japan, 1819
HANREI JIHO 24 (Jp. Tokyo DC, Apr. 9, 2003).
2709
Specifically, it was determined that while the detention was itself unlawful, a stricter
standard of illegality is required before damages may be awarded in accordance with the
terms of the State Redress Act: Japan v. Z, No. Heisei 16 Gho Ko 131 (Jp. Tokyo HC, Jan.
14, 2004), appeal denied No. Heisei 16 Gyo Tsu 106, Heisei 16 Gyo Hi 115 (Jp. SC, May
16, 2004).
2710
See e.g. the foundational decision in National Human Rights Commission v. State of
Arunachal Pradesh, (1996) 83 AIR 1234 (In. SC, Jan. 9, 1996) finding that a “clear and
present danger” to the lives of Chakma refugees from Bangladesh entitled them to
protection under Art. 21 of the Constitution of India. The history of Indian judicial
engagement with refugee rights is surveyed in N. Ahmad, “The Constitution-Based
Approach of Indian Judiciary to the Refugee Rights and Global Standards of the UN
Convention,” (2017) 8 King’s Students Law Review 30.

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 782 4 ri g ht s of re f u g e e s p hy s i c a l l y p r e s e n t

the government, outside its judicial system, with no checks on powers and,
in effect, without legal remedies against abuses.2711

In other contexts refugees may in principle be entitled to access the justice

system, but in practice not realistically be able to do so. For example, while
Georgia’s Law on Refugees purports to grant refugees the right to equal
protection under the law without discrimination, shortcomings in the law’s
practical implementation led many Chechen refugees to seek dispute reso-
lution instead from their traditional Council of Elders, comprised of men over
the age of fifty – a body with no transparency, and in which women are often
disadvantaged.2712 And in South Africa, the closure of three of six Refugee
Reception Centres has meant that refugee claimants unable to traverse hun-
dreds of kilometers to a remaining office have in practice been unable to secure
access to that country’s legal system.2713
Clearly, judicial assistance may be of greatest value to a refugee seeking
recognition of his or her status as a refugee: unless refugee status is acknow-
ledged by the host state, a fair assessment of refugee status is the indispensable
means by which to vindicate Convention rights.2714 Yet even on this vitally
important question, refugees do not always enjoy clear access to the courts. In
Canada, for example, national security concerns have been invoked to justify
the non-disclosure of some evidence to refugee claimants in inadmissibility
hearings, detention reviews, and appeals;2715 designated judges moreover are
2711
Verdirame, “Kenya,” at 62–64.
2712
“Their decisions are informed by long held traditions and practices and do not necessarily
respect the human rights of those involved. It is difficult to understand how the Council
of Elders works as it operates in a traditional manner and is closed to outsiders”: UNHCR,
“Georgia: Analysis of Gaps in the Protection of Refugees,” April 2008, at 39.
2713
“Timely access to a [Refugee Reception Centre] is . . . critical not just for asylum seekers to
legalize their stay in this country, but also for the effective protection of their rights. In
terms of s. 27 of the Act, a refugee has a range of rights, including full legal protection, the
right to remain in the Republic and the entitlement to: (a) apply for an immigration
permit, an identity document and a travel document; and (b) the same basic health
services and primary education which inhabitants of the Republic receive from time to
time. In practice, however, there are usually significant obstacles in the path of asylum
seekers and refugees”: Minister of Home Affairs v. Somali Association of South African
Eastern Cape, Dec. No. 831/2013 (SA SCA, Mar. 25, 2015), at [4].
2714
See W. Kälin, “Temporary Protection in the EC: Refugee Law, Human Rights, and the
Temptations of Pragmatism,” (2001) 44 German Yearbook of International Law 221
(Kälin, “Temporary Protection”), at 218: “Although the 1951 Convention does not
contain any provisions relating to national status determination procedures, the principle
of good faith in fulfilling treaty obligations requires, as has been stressed by the German
Constitutional Court [citing the case of EZAR 208, 2 BvR 1938/93; 2 BvR 2315/93 (Ger.
FCC, May 14, 1996), abstracted in (1997) 9 International Journal of Refugee Law 292], that
States Parties to the Convention institute a procedure which allows for a determination of
who is entitled to the guarantees of that treaty.”
2715
Immigration and Refugee Protection Act, s. 86. See also Canadian Council for Refugees,
“Comments on Bill C-51, the Anti-Terrorism Act, 2015,” Mar. 11, 2015, at 1–2.

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 4.10 j udi ci al an d admi n i s t r ative assistanc e 783

not allowed to review the full file, but only evidence that is “relevant to the
ground of inadmissibility stated.”2716 In the United States, refugee claimants
seeking withholding of removal are no longer entitled to a full evidentiary
hearing on the merits of their claims.2717 Nor is an administrative decision to
detain a refugee claimant for the duration of the status assessment process
subject to appeal or review by American courts.2718 Angola has been criticized
by the UN Human Rights Committee for its practice of detaining refugees and
other undocumented migrants without recourse to a court to pronounce on
the legality of that detention.2719 Australia has gone farther still, actually
“excising” all of its territory from what it calls its “migration zone,” meaning
that any refugee arriving by boat can be sent to offshore detention facilities
without having had any access to Australian courts.2720
The ability of refugees to seek an appeal or review of a negative decision on
status determination is even more frequently stymied. Refugees arriving “irregu-
larly” to Canada and who are classified as “designated foreign nationals,” for
example, must prove their claims while in prison and with limited access to legal

2716
Prior to the enactment of the 2015 amendments, decision-makers were entitled to review
the entire file rather than only evidence deemed “relevant” to the alleged ground of
inadmissibility: Immigration and Refugee Protection Act, Division 90. See also
G. Hudson, “As Good as it Gets? Security, Asylum, and the Rule of Law after the
Certificate Trilogy,” (2016) Osgoode Legal Studies Research Paper Series, at 4–5.
2717
See Matter of EFHL, 27 I&N Dec. 226 (US AG, Mar. 5, 2018), vacating Matter of EFHL, 26
I&N Dec. 319 (US BIA, June 12, 2014).
2718
“The decision whether or not to detain an asylum seeker apprehended at or near the
border occurs at two stages. First, for individuals whom [Customs and Border Protection]
officers have decided to enter into summary removal under section 212(a)(6)(c) or
212(a)(7) [of the Immigration and Nationality Act], detention is automatic. The
[Immigration and Nationality Act] does not require judicial review of this period of
detention . . . Second, once an individual passes the credible fear screening, the decision
to detain is, by statute, discretionary. In practice, however, a combination of
[Immigration and Customs Enforcement]’s inconsistent application of custody deter-
mination criteria and the setting of high bond amounts has caused asylum seekers to
‘languish in detention for months, if not years’”: L. Dominguez et al., “US Detention and
Removal of Asylum Seekers: An International Human Rights Law Analysis,” Allard K.
Lowenstein International Human Rights Clinic of Yale Law School, June 20, 2016, at 33.
2719
“The Committee is concerned . . . at reports that undocumented migrants may be
subjected to detention without recourse to a court to pronounce on its legality.
Moreover, the Committee is concerned at the fact that the State party has stopped its
registration procedure for asylum seekers who may therefore be under threat of refoule-
ment”: Concluding Observations on the Initial Report of Angola, adopted by the
Committee at its 107th session (11–28 March 2013), UN Doc. CCPR/C/AGO/CO/1,
Apr. 29, 2013, at [16].
2720
J. Phippen, “Australia’s Controversial Migration Policy,” Atlantic, Apr. 29, 2016. While
the claims of refugees arriving by air are processed in Australia, a “capping” regulation
limits the number of protection visas authorized in a given year. In the result, refugees
may remain in detention for months or even years: Plaintiff M150/2013 v. Minister for
Immigration and Border Protection, [2014] HCA 25 (Aus. HC, June 20, 2014), at [31].

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 784 4 ri g ht s of re f u g e es p hy s i c a l l y p r e s e n t

counsel, interpreters, and community support. If their claims are denied, they
have no right of access to the Refugee Appeal Division and are subject to
immediate removal.2721 A similar scheme restricts access to appeals for persons
arriving via the United States or from “designated” countries of origin.2722
Even where appeals are in principle available, the review of rejected refugee
claims may be foreclosed in practice by the setting of rigid deadlines within
which an individual is required to seek judicial intervention. Britain’s infamous
“fast track” procedures resulted in a seven-day appeal deadline deemed “so tight
that many asylum seekers [were] denied the opportunity to present their appeals
effectively.”2723 Under European Union law, states may opt not to grant suspen-
sive recourse to those whose applications are considered unfounded, manifestly
unfounded, or inadmissible.2724 Perhaps most notoriously, Hungary’s 2018
reduction of the filing deadline to appeal negative admissibility determinations
from seven to three days,2725 combined with the removal of appellants to transit
zones and denial of access to food therein, was said to have the “aim of
dissuading them from pursuing court appeals against inadmissibility decisions.
The goal of the Hungarian government . . . is to make these people abandon their
asylum applications by leaving the transit zones and returning to Serbia.”2726

Refugee Convention, Art. 16(1) Access to Courts

A refugee shall have free access to the courts of law on the
territory of all Contracting States.

Civil and Political Covenant, Art. 14(1)

All persons shall be equal before the courts and tribunals. In the
determination . . . of his rights and obligations in a suit at law,
everyone shall be entitled to a fair and public hearing by a compe-
tent, independent and impartial tribunal established by law . . .
2721
See A. Grant and S. Rehaag, “Unappealing: An Assessment of the Limits on Appeal Rights
in Canada’s New Refugee Determination System,” (2016) 49(1) University of British
Columbia Law Review 203, at 257–258.
2722
Ibid. at 224.
2723
The Lord Chancellor v. Detention Action, [2015] EWCA Civ 840 (Eng. CA, July 29, 2015),
at [24].
2724
EU Procedures Directive (recast), at Art. 46(6) and (7).
2725
“Asylum seekers have the right to request judicial review of a Dublin decision before the
competent Regional Administrative and Labour Court within 3 days. The extremely short
time limit of 3 days for challenging a Dublin transfer does not appear to reflect the
‘reasonable’ deadline for appeal under Article 27(2) of the Dublin III Regulation or the
right to an effective remedy under Article 13 ECHR”: Asylum Information Database,
“Country Report: Hungary 2018,” www.asylumineurope.org/reports/country/hungary,
accessed Feb. 20, 2020, at 39.
2726
“NGO says Hungary Denies Food to Asylum Seekers,” Infomigrants.net, Aug. 23, 2018.
See also Hungarian Helsinki Committee, “Asylum-Seekers with Inadmissible Claims are
Denied Food in Transit Zones at Border,” Aug. 17, 2018.

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 4.10 j udi ci al an d admi n i s t r ative assistanc e 785

Refugee Convention, Art. 25 Administrative Assistance

1. When the exercise of a right by a refugee would normally require
the assistance of authorities of a foreign country to whom he
cannot have recourse, the Contracting States in whose territory he
is residing shall arrange that such assistance be afforded to him by
their own authorities or by an international authority.
2. The authority or authorities mentioned in paragraph 1 shall
deliver or cause to be delivered under their supervision to
refugees such documents or certifications as would normally
be delivered to aliens by or through their national authorities.
3. Documents or certifications so delivered shall stand in the
stead of the official instruments delivered to aliens by or
through their national authorities, and shall be given credence
in the absence of proof to the contrary.
4. Subject to such exceptional treatment as may be granted to
indigent persons, fees may be charged for the services men-
tioned herein, but such fees shall be moderate and commen-
surate with those charged to nationals for similar services.
5. The provisions of this article shall be without prejudice to
articles 27 and 28.
One possible means of assisting refugees to vindicate their rights would have
been to return to the pre-Second World War precedent of empowering the
international supervisory agency, presently the UNHCR, to undertake quasi-
consular representation on behalf of refugees. Yet in line with the more general
determination of states to decentralize authority for the implementation of
refugee protection,2727 no such proposal was tabled.2728
The failure to grant UNHCR a general responsibility to assist refugees to
vindicate their rights largely reflects a deference to the decision of the General
Assembly not specifically to include this responsibility in the agency’s man-
date.2729 There was also a clear disinclination to tie the hands of the future
2727
See J. Hathaway, “A Reconsideration of the Underlying Premise of Refugee Law,” (1990)
31(1) Harvard International Law Journal 129, at 166–168.
2728
The strongest endorsement of an international mechanism for effectuating the exercise of
refugee rights was contained in the French draft of Art. 25, under which UNHCR would
have had automatic residual authority to provide administrative assistance to refugees –
but only if a state failed to devise its own system for facilitating the implementation of
refugee rights. “In all cases in which the exercise of a right by the foreigner normally
requires the administrative assistance of the authorities of his country or of its represen-
tatives abroad, the High Contracting Parties undertake either to appoint a national
authority or, failing that, to empower the High Commissioner for Refugees to furnish
assistance to refugees”: France, “Draft Convention,” at 8.
2729
The relevant discussions occurred in the Ad Hoc Committee several months before
UNHCR was established, and the representatives were understandably reluctant to
usurp the jurisdiction of the General Assembly to define the agency’s role. “The High

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 786 4 ri g ht s of r e f u g e es p hy s i c a l l y p r e s e n t

Office of the High Commissioner, which might not wish to undertake protec-
tion work in precisely the same way as had its predecessors.2730 Because of
these operational uncertainties, the drafters insisted that states assume the
basic responsibility to facilitate the exercise of rights by refugees. While a
government might validly delegate its duty to provide administrative assistance
to a willing international agency, the government ultimately remains respon-
sible to ensure that refugees actually receive the assistance they require.2731 As
framed by the American representative,

There was a danger that some countries might seek to relieve their own
agencies of administrative responsibility by referring refugees to an inter-
national authority . . . In order to eliminate the risk of leaving refugees
unprotected, it seemed advisable to make it mandatory upon

Commissioner had not yet been appointed, the nature of his functions was not known,
and it was still not clear whether he would administer them through offices in various
countries or through a central agency”: Statement of Mr. Henkin of the United States, UN
Doc. E/AC.32/SR.19, Feb. 1, 1950, at 2. See also Statement of Sir Leslie Brass of the United
Kingdom, ibid. at 3: “[I]t was beyond the competence of this Committee to attribute
functions to the High Commissioner or to imply that his office would exercise functions
in various countries.” At the meeting of the Conference of Plenipotentiaries – which
occurred after the enactment of the UNHCR Statute – one delegate expressed resignation
that nothing could be done to reverse the decision of the General Assembly not to entrust
UNHCR with the duty to render administrative assistance to refugees. “The Belgian
Government regretted that a task of this nature had not been entrusted exclusively to an
international authority. Under his mandate, the High Commissioner could protect only
groups of refugees, and that was where the tragedy lay in certain cases, where the refugee
needed not only the protection which the relations established between the High
Commissioner and national authorities afforded him, but individual protection as
well”: Statement of Mr. Herment of Belgium, UN Doc. A/CONF.2/SR.11, July 9, 1951,
at 12.
2730
“[T]he language still appeared to retain a certain weakness inasmuch as it might be
interpreted as granting a country the right, if it so desired, to designate an international
authority to furnish assistance to refugees, regardless of the wishes of the international
authority concerned”: Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/
SR.19, Feb. 1, 1950, at 6. The immediate reply of the Israeli delegate – which the drafters
agreed “should be incorporated into the Committee’s report in order to meet the point of
the United States representative” – was that “[o]bviously [states] could not arbitrarily
designate an international body as the authority in question against its wishes. The
reference to international authorities could be invoked only if an appropriate inter-
national organ existed and was willing to assume the obligation envisaged in the para-
graph. Where no such organization existed, the Contracting Party would have to
designate an authority to furnish requisite assistance to refugees”: Statement of Mr.
Robinson of Israel, ibid. at 7.
2731
At the commencement of debate on this issue, the French delegate quickly assured his
colleagues that even the French proposal “would leave each state free to decide whether
administrative assistance should be furnished by its own national authorities or by an
international authority, if such authority existed. It was not intended to impose duties
upon the High Commissioner nor to give him exclusive competence in the matter”:
Statement of Mr. Ordonneau of France, ibid. at 2.

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 4.10 judicial a nd administrative assistance 787

Governments to assume responsibility except when an international

authority functioning in their territory was in a position to do so. In the
latter event, States should retain the option of accepting the authority of an
international organ.2732

In line with this perspective, the Refugee Convention requires each state
party to conceive an administrative mechanism that enables all refugees in its
territory to exercise their Convention rights.2733 The precise content of the
duty of administrative “assistance” to be provided by a refugee’s country of
residence under Art. 25(1) is not, however, set out in the Convention. While
the Committee deleted a parenthetical reference to consular assistance as an
unnecessary refinement,2734 it indicated no intention to vary the sorts of
administrative assistance traditionally provided to refugees. As Grahl-
Madsen suggests, the duty to provide administrative assistance to refugees
under paragraph 1 of Art. 25 therefore goes beyond the responsibility to issue
documents set out in paragraph 2, and logically includes “correspondence,
investigations, recommendations, counseling, [and] personal assistance”2735
needed to enable refugees to benefit from their Convention rights.2736 In line
2732
Statement of Mr. Henkin of the United States, ibid. at 2–3. Sir Leslie Brass of the United
Kingdom, ibid. at 3, also emphasized that a consular role for an international agency on
behalf of refugees “was not contemplated by the United Kingdom government.” See also
Statements of the Chairman, Mr. Chance of Canada, and Mr. Perez Perozo of Venezuela,
ibid.
2733
The Constitutional Court of Ecuador has thus ruled that by virtue of duties at inter-
national law authorities must ensure that the right to asylum is made real and effective:
Dec. No. 1567-13-EP (Ec. CC, Mar. 25, 2015), at [17]. “[T]he central purpose of Art. 25
. . . is to ensure that refugees are able in practice to enjoy the rights for which the 1951
Convention provides; in many ways, this epitomizes the ‘surrogate protection’ that
international refugee law is intended to be”: E. Lester, “Article 25,” in A. Zimmermann
ed., The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A
Commentary 1129 (2011) (Lester, “Article 25”), at 1131.
2734
The original draft provided that “[i]n all cases in which the exercise of a right by a
foreigner requires the assistance of the authorities of his country (in particular of the
consular authorities) the High Contracting Parties shall designate an authority which
shall furnish assistance to refugees”: Secretary-General, “Memorandum,” at 43. The
reference to consular assistance was said by the Belgian representative to lack “clarity,”
leading the Brazilian delegate to suggest its deletion on the grounds that “the introductory
clause of paragraph 1 was sufficiently clear in that respect”: Statements of Mr. Cuvelier of
Belgium and Mr. Guerreiro of Brazil, UN Doc. E/AC.32/SR.19, Feb. 1, 1950, at 4.
2735
Grahl-Madsen, Commentary, at 103. Weis asserts at least as broad an understanding,
noting that “[t]he term ‘administrative assistance’ is wider than the functions enumerated
in the Arrangement of 1928. It may include investigations, counseling and personal
assistance. It includes the functions normally exercised by consuls”: Weis, Travaux,
at 204.
2736
The Belgian representative to the Conference of Plenipotentiaries stressed the import-
ance of Art. 25 as mandating a mechanism to provide “individual protection” to refugees
beyond the group-based protection role granted to UNHCR under its Statute: Statement
of Mr. Herment of Belgium, UN Doc. A/CONF.2/SR.11, July 9, 1951, at 12.

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 788 4 ri g ht s of re f u g e e s p hy s i c a l l y p r e s e n t

with this broad understanding, the High Court of Australia struck down a law
allowing the government to refuse to issue a protection visa to persons found to
be refugees. As the Chief Justice noted,
Protection visas are a mechanism, albeit not the only mechanism, by which
Australia can discharge its international obligations . . . A construction . . .
which would permit the deferral of a decision about an application for a
protection visa by a person in respect of whom Australia has been found to
owe protection obligations . . . would be at odds with the purposes of the
statutory scheme of which protection visas are a central part.2737

Nor may a state party validly limit respect for refugee rights to only such
refugees as are somehow able to advance those rights independently;2738
governments instead have an affirmative responsibility under Art. 25(1) to
establish a mechanism by which refugees may benefit in practice from their
legal entitlements.2739 This duty was infringed by South Africa when it closed
half of its Refugee Reception Centres, thus leaving many refugees unable to
travel hundreds of kilometers with no practical means to claim their rights.2740
In issuing an order of mandamus to reopen the reception center in Port
Elizabeth, the South African Supreme Court of Appeal held that
The condition of being a refugee connotes a “special vulnerability as
refugees by definition are persons in flight from the threat of serious
human rights abuse” . . . Timely access to [a Refugee Reception Centre]
is . . . critical not just for asylum seekers to legalise their stay in this
country, but also for the effective protection of their rights.2741
2737
Plaintiff M150/2013 v. Minister for Immigration and Border Protection, [2014] HCA 25
(Aus. HC, June 20, 2014), at [36]–[38]. An earlier decision of the Australian Full Federal
Court similarly took umbrage at the decision of the Minister not to grant a protection visa
to a recognized refugee, observing “that refusal of a protection visa to a person found to
be a refugee would involve refusal of many of Australia’s protection obligations with
respect to that person . . . [S]ome account has to be paid to the acknowledgment that he
was a refugee in respect of whom Australia had voluntarily accepted protection obliga-
tions”: NBMZ v. Minister for Immigration and Border Protection, [2014] FCAFC 38 (Aus.
FFC, Apr. 9, 2014), at [138], [189].
2738
“States [must] take positive steps to provide administrative assistance, or to ensure that
administrative assistance is provided”: Lester, “Article 25,” at 1140.
2739
“[T]he language of article [25] [is] mandatory, rather than permissive. It placed upon
Governments the obligation to provide administrative assistance to refugees who could
not obtain it through normal consular channels since they no longer enjoyed the protec-
tion of their country of origin”: Statement of Mr. Robinson of Israel, UN Doc. E/AC.32/
SR.19, Feb. 1, 1950, at 4. At the first session of the Ad Hoc Committee, the text of Art.
25(1) was amended to make this affirmative duty clear by adding the words “shall
arrange” (so that it read, “The Contracting State . . . shall arrange that such assistance
be afforded”): Ad Hoc Committee, “First Session Report,” at Annex I.
2740
See text at note 2713.
2741
Minister of Home Affairs v. Somali Association of South Africa Eastern Cape, Dec. No.
831/2013 (SA SCA, Mar. 25, 2015), at [2], [4]. The European Court of Human Rights has

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 4.10 judicial and administrative assistance 789

States may implement the duty of administrative assistance directly, for

example by establishing or empowering an independent national authority to
assist refugees,2742 or including refugee protection within the mandate of one
or more2743 existing governmental agencies.2744 Alternatively, they may make
arrangements with UNHCR or another international agency2745 to act as
intermediary in assisting refugees to secure their rights.2746 In view of the
explicit language of Art. 25(1),2747 however, it would not be sufficient to entrust
the provision of administrative assistance to a non-governmental organization
unless that organization receives delegated power from the state, or from an
international organization acting at the state’s behest.2748 The critical concern

similarly insisted “that the accessibility of a remedy in practice is decisive when assessing
its effectiveness”: MSS v. Belgium, Dec. No. 30696/09 (ECtHR, Jan. 21, 2011), at [318].
2742
“In some countries, such as the United Kingdom, no special machinery had been set up.
In others, however, special offices had been established for that purpose. In fact, the
provision was based on the practice of Belgium and France”: Statement of Mr. Robinson
of Israel, UN Doc. E/AC.32/SR.19, Feb. 1, 1950, at 4.
2743
“[I]nasmuch as refugees might have to apply to several authorities in order to secure
administrative documents, the words ‘an authority’ in the final clause of the paragraph
should be in the plural”: Statement of Mr. Cha of China, ibid. at 4. See also Statements of
Mr. Kural of Turkey, ibid., and Mr. Perez Perozo of Venezuela, ibid. at 5.
2744
“[T]he word ‘designate’ did not imply that an authority to furnish assistance to refugees was
necessarily to be established; such authority or authorities might already exist in certain
countries, in which case they need merely be designated”: Statement of Mr. Cuvelier of
Belgium, ibid. at 5. See also Statement of Mr. Robinson of Israel, ibid.: “[T]he reference [in
the Secretary-General’s draft] to the Arrangement of 30 January 1928 [under which the
responsibility to provide administrative assistance was entrusted to a High Commissioner for
Refugees] would in itself appear to make the creation rather than the mere designation of a
special authority mandatory; as that was not the intention of the Committee, the reference to
the Arrangement of 1928 should be deleted.”
2745
“Article 25 does not specify any particular international authority. A Contracting State is
therefore free to choose any international authority it likes, which is able and willing to
carry out the task. It is, however, clear that the drafters of the Convention had in
particular the Office of the High Commissioner for Refugees in mind. It was decided,
however, not to mention this Office by name, because it was felt that the Contracting
States should not impose any tasks on it, this being a matter for the United Nations to
decide, and because there was a possibility that the Convention would survive the Office”:
Grahl-Madsen, Commentary, at 105.
2746
“A Government may itself provide such assistance by creating an authority to do so or by
assigning the task to an existing national authority, or a country may prefer to make
arrangements for an international authority to render such assistance. If, for example, the
United Nations High Commissioner for Refugees should deal with administrative assist-
ance, a country may arrange with the High Commissioner to have such assistance
rendered in its territory. In any event, however, there is an obligation on the
Contracting State to see that such assistance is provided”: Ad Hoc Committee, “First
Session Report,” at Annex I.
2747
It is the duty of states to “arrange that such assistance be afforded . . . by their own
authorities or by an international authority”: Refugee Convention, at Art. 25(1).
2748
“[T]he contracting State would nonetheless remain accountable”: Lester, “Article 25,” at
1141. As determined by the Hong Kong Court of First Instance, “UNHCR is not

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 790 4 righ t s of r e f ugee s ph y sica lly pr es en t

is to ensure that the entity charged with assisting refugees be genuinely in a

position to act authoritatively.2749
All refugees, whether or not their status has been formally verified, are
entitled to benefit from administrative assistance.2750 Some confusion on this
point could arise from the fact that this duty falls on a refugee’s state of
“residence,” which might suggest that only refugees who meet one of the
higher degrees of attachment (e.g. lawful or habitual presence, or lawful stay)
may assert a right to assistance.2751 This conclusion is not, however, justified.
Not only does the text not qualify the beneficiary class by reference to a level
of attachment, but the drafters generally used the phrase “residence” (as
opposed to habitual residence, or domicile)2752 in a way that implied no
more than transient presence in a state party.2753 Significantly, the original

unaccountable. It is accountable to the Director [of Immigration] himself . . . If [counsel

for the appellants] is correct [in suggesting that UNHCR actions are immune from
judicial scrutiny], it means that the Director may not lawfully seek the assistance of any
international body that is not subject to the supervisory jurisdiction of the Hong Kong
courts . . . That, in my view, would lead to an absurdity”: C v. Director of Immigration,
Dec. No. HCAL 132/2006 (HK HC, Feb. 18, 2008), at [189]–[190].
2749
“If the refugee is actually to enjoy these rights, he must obtain the assistance of an
authority which will perform for him the services performed by national authorities in
the case of persons with a nationality. In the absence of an international authority, the
High Contracting Parties must appoint a national authority which will furnish its
assistance to refugees”: Secretary-General, “Memorandum,” at 43–44. See also
Statement of Mr. Herment of Belgium, UN Doc. A/CONF.2/SR.11, July 9, 1951, at 12,
who “stressed the importance of article [25], which was designed to meet one of the most
constant and essential needs of refugees . . . In many European countries refugees . . .
would like to be able to get into direct touch with someone who was responsible for
protecting them [emphasis added].”
2750
The text of Art. 25 grants “refugees” without qualification the right to a state’s adminis-
trative assistance. See generally Chapter 3.1.1. See also Lester, “Article 25,” at 1137
(“Given that refugee status is a declaratory status, the provision may also be taken to
apply to asylum seekers entering or seeking to enter a refugee status determination
procedure and to prima facie refugees in situations of mass influx”).
2751
See generally Chapter 3.1.
2752
“The word ‘habitual’ (Arts. 14, 16(2)) is not used, indicating that a permanent residence is
not required”: Robinson, History, at 131. See also Grahl-Madsen, Commentary, at 104:
“The State ‘in whose territory he is residing,’ or the country of residence, is not the same
as the country where a refugee has domicile or where he is ‘lawfully staying’ or allowed to
settle.”
2753
See generally Chapter 3.1.3. For example, in debate on Art. 12 of the Convention, the
Belgian representative expressed his concern about how to deal with the case of “a refugee
domiciled in China, where he had his family and his business, [but] who might visit
Belgium on a business trip. If he should happen to die in Belgium, it would be ludicrous to
determine his status on the basis of the law of the country of residence. He would normally
be subject to the law of China, his country of domicile [emphasis added]”: Statement of
Mr. Cuvelier of Belgium, UN Doc. E/AC.32/SR.8, Jan. 23, 1950, at 7. Significantly, it was
also a representative of Belgium who introduced the notion of “residence” into Art. 25 at
the Conference of Plenipotentiaries: See text at notes 2757–2758.

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 4.10 judici al and administrative as sistance 791

draft text imposed the duty of administrative assistance simply on “the High
Contracting Parties.”2754 The Ad Hoc Committee amended this formulation to
assign the duty to “[t]he Contracting State in whose territory the exercise of a
right by aliens would normally require the assistance of the authorities of the
country of nationality”2755 in order to make clear that there was a duty to assist
refugees not just in their asylum country, but also in any country to which the
refugee might travel or have dealings.2756 At the Conference of
Plenipotentiaries, however, the Belgian representative observed that it would
make more sense to assign the duty of administrative assistance to a single
state.2757 Because a refugee might need to exercise a right in a non-contracting
state, “the country of residence should lend its good offices. The concept of
territory should, for those reasons, be omitted from the provisions governing
the exercise of a right by refugees.”2758
Thus, the amendment of the text of Art. 25 to assign responsibility for the
provision of administrative assistance to a refugee’s country of residence was in
no sense an effort to restrict the beneficiary class of Art. 25, but was rather
intended simply to make clear that the country in which the refugee is staying
should assist him or her, even when necessary for the exercise of a right outside
that state’s jurisdiction.2759 This interpretation most readily advances the

2754
Secretary-General, “Memorandum,” at 43.
2755
Ad Hoc Committee, “First Session Report,” at Annex I.
2756
“Refugees do not enjoy the protection and assistance of the authorities of their country of
origin. Consequently, even if the government of the country of asylum grants the refugee
a status which ensures him treatment equivalent to or better than that enjoyed by aliens,
he may not in some countries be in a position to enjoy the rights granted him. Often he will
require the assistance of an authority which will perform for him the services performed
by national authorities in the case of persons with a nationality. In this article, govern-
ments undertake to assure that refugees obtain required assistance . . . [T]here is an
obligation on the Contracting States to see that such assistance is provided [emphasis
added]”: Ad Hoc Committee, “First Session Report,” at Annex II.
2757
“He did not consider that the obligation on Contracting States to afford refugees the
necessary administrative assistance was brought out with sufficient clarity in that para-
graph . . . In the opinion of the Belgian delegation . . . the responsibility should be placed
squarely on the authorities of the country of residence, who were better able to come to
the assistance of refugees”: Statement of Mr. Herment of Belgium, UN Doc. A/CONF.2/
SR.11, July 9, 1951, at 12–13.
2758
Statement of Mr. Herment of Belgium, ibid. at 13. Both the Colombian delegate and the
High Commissioner for Refugees voiced their approval of this change (see Statements of
Mr. Giraldo-Jaramillo of Colombia and of Mr. van Heuven Goedhart of UNHCR, ibid. at
14), which was adopted by the Conference without further debate: ibid. at 15.
2759
Weis notes that “[a]dministrative assistance is not limited to the territorial authorities of
the country of residence. Diplomatic or consular authorities may be designated to render
this assistance to refugees while abroad or they may furnish such assistance provided it is
furnished ‘under the supervision’ of the designated authority”: Weis, Travaux, at 204.
Lester’s view that “the obligation to provide administrative assistance is not territorially
constrained” (Lester, “Article 25,” at 1138) should thus be understood to refer to the

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purposes of the Refugee Convention: since there is no doubt that some rights
inhere in refugees prior to their being granted a more durable status in an
asylum country,2760 it would be nonsensical to allow states effectively to avoid
their reciprocal duties toward refugees by refusing refugees the assistance
required to invoke their rights.

4.10.1 Documentation
One of the most basic concerns of refugees is to acquire the sorts of official
documentation often required to function in the asylum country. Art. 25(2) is
expressly addressed to this matter.2761 It requires the state in which a refugee is
presently residing to provide the refugee with “such documents or certifica-
tions as would normally be delivered to aliens by or through their national
authorities.”2762 The explanatory note to the Secretary-General’s original pro-
posal for Art. 25(2) provides a helpful sense of both the scope of the duty, and
the rationale for such a provision:

In order to perform the acts of civil life (marriage, divorce, adoption,

settlement of succession, naturalization, acquisition of immovable prop-
erty, constitution of associations, opening of bank accounts, etc.), a person
must produce documents to certify his identity, position, civil status,
nationality, etc., and if he is a foreigner, to testify to the provisions of his
former or present national law and the conformity of instruments exe-
cuted in his country of origin with the legislation of that country . . .

It is easy for a foreigner to obtain such documents. He merely has to apply

to the national services which operate in his country of origin or which are
accredited abroad and they will deliver the documents which he requires.
A refugee whose links with his country of origin are broken cannot obtain
such papers from the authorities of that country. In the absence of any
international authority, a national authority designated for the purpose
will be required to issue to refugees all the documents of which they stand
in need.2763

scope of the single designated state’s responsibilities, not to suggest that multiple states
are obliged to provide a refugee with administrative assistance.
2760
See Chapter 3.1.
2761
“‘[D]ocuments or certifications’ is narrower than the broader concept of ‘administrative
assistance’”: Lester, “Article 25,” at 1143.
2762
“The words ‘by or through’ (their national authorities) . . . indicate that it is either the
local authority which ordinarily renders the service or the consula[r] authorities through
which the documents or certifications are procured or delivered”: Robinson, History, at
130. See also Grahl-Madsen, Commentary, at 105: “Paragraph 2 allows a flexible system to
be established, on the [sole] condition that there is some supervision by a competent
authority.”
2763
Secretary-General, “Memorandum,” at 44. Note, however, that the substance of a refu-
gee’s personal status is governed by the rules which pertain in his or her country of

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 4.10 judicial a nd administrative assistance 793

This responsibility does not, however, include the issuance of either refugee
identity or travel documents, matters regulated by Arts. 27 and 28 of the
Convention respectively.2764 Nor does it amount to a duty to issue documents
which the refugee could readily acquire by independent effort,2765 or which are
not genuinely necessary to the conduct of daily life or for the vindication of a
refugee’s rights. For example, it was noted by the drafters that in most common
law states, non-citizens were allowed to rely on an affidavit attesting to relevant
facts, rather than securing official documentation from governmental

domicile, in accordance with Art. 12 of the Refugee Convention. See generally

Chapter 3.2.4.
2764
These matters are expressly excluded by Art. 25(5). The duty to issue identity documents
is discussed at Chapter 4.9; the issuance of travel documents is considered in Chapter 6.6.
Art. 25(5) was added to the text to respond to concerns of some representatives that its
scope might otherwise appear to be overly broad. The American delegate, for example,
credited the Swiss observer “for pointing out that article [25] might appear to cover travel
documents, which were properly the subject of article [28]. The Drafting Committee
might wish to make some change to remove the possibility of confusion”: Statement of
Mr. Henkin of the United States, UN Doc. E/AC.32/SR.38, Aug. 17, 1950, at 21. Similarly,
the Chairman of the Ad Hoc Committee confirmed that “the ‘certifications’ referred to in
article [25] were not identity papers but evidence of such matters as marital status or
medical proficiency”: Statement of the Chairman, Mr. Larsen of Denmark, ibid. As
UNHCR has noted, Arts. 25, 27, and 28 “may need to be read together . . . as part of a
single system of protection of the refugee’s entitlement to identity and documentation”:
UNHCR, “Amicus curiae of the United Nations High Commissioner for Refugees
(UNHCR) on the interpretation and application of Article 25, Article 27 and Article 28
of the 1951 Convention Relating to the Status of Refugees,” Dec. 22, 2016, at [21].
2765
For example, the British delegate asked whether “if a Spanish refugee currently in
England required a birth certificate, would the United Kingdom Government be obliged
to attempt to procure the certificate for him, although in such a case the refugee might
presumably obtain the document simply by requesting it from the Spanish Government’s
Registrar of Births?”: Statement of Sir Leslie Brass of the United Kingdom, UN Doc. E/
AC.32/SR.19, Feb. 1, 1950, at 6. The response was “that the hypothesis just mentioned by
the United Kingdom representative automatically fell outside the scope of paragraph 1
which would operate only in the case of a refugee unable to secure the necessary
documents from the authorities of his country”: Statement of Mr. Cuvelier of Belgium,
ibid. As this exchange makes clear, the duty to provide refugees with documents under
Art. 25(2) is appropriately considered a subset of the more general duty of administrative
assistance set out in Art. 25(1). See Grahl-Madsen, Commentary, at 106: “Whereas
Paragraph 1 deals with administrative assistance of any description, Paragraph 2 is
restricted to ‘documents or certifications.’” But as Grahl-Madsen insists, “[a] refugee
cannot be expected to ask the authorities of his country of origin for assistance, and the
authorities of the country of residence consequently cannot refuse to afford assistance on
the ground that the refugee has not first tried [to see] if the former can help him. The same
must apply if the refugee needs documentation relating to acts which have taken place in
countries with a regime similar to that prevailing in [the refugee’s] country of origin, e.g.
if a refugee from Hungary needs a certificate from Czechoslovakia or Romania. If, on the
other hand, administrative assistance is required from some other country where a
refugee cannot fear any persecution, e.g. a country where he formerly enjoyed asylum,
the refugee must try [to] get what he needs from that country”: ibid. at 103.

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 794 4 ri g h t s of r e f u g e es ph y s i c a l l y p r e s e nt

authorities. Refugees could, of course, do the same.2766 But where official

documentation is required, a commitment from the authorities of the refugee’s
host state to provide the refugee with substitute documentation is often
critical.2767 As observed by the Belgian delegate to the Conference of
Plenipotentiaries, “[t]he object of paragraph 2 of article [25] was to enable
refugees to procure documents which they would not be able to obtain from
the countries which would normally provide them . . . That was a most
important provision, and it was therefore right that it should be safeguarded
to the greatest possible extent.”2768 The drafters therefore agreed that states
should enjoy no latitude to refrain from issuing such documents or certifica-
tions as are truly required by a refugee.2769 As the earlier discussion of the
beneficiary class of Art. 25 makes clear, it is the responsibility of the refugee’s
state of residence to issue these documents, even if they are required by the
refugee for purposes outside its borders.2770
2766
“No difficulties arose in countries of common law, where the affidavit system was
applied”: Statement of Mr. van Heuven Goedhart of UNHCR, A/CONF.2/SR.11, July 9,
1951, at 14. As confirmed by the representative of the United Kingdom, Art. 25(2) would
“in point of fact have no practical effect in the United Kingdom”: Statement of Mr. Hoare
of the United Kingdom, ibid. at 15. He later amplified this position, noting that he
“wished to make it clear that the Government of the United Kingdom, where the system
envisaged in paragraph 2 of article 25 did not exist, would not interpret the paragraph as
mandatory in the sense that it would require the United Kingdom Government to invent
and introduce a system for supplying documents of the type which would be supplied by
other countries. The United Kingdom Government would, however, render every assist-
ance to refugees by continuing to apply its own system – which was based on the personal
affidavit – and to other countries by seeing that documents of that type were duly
legalized if required by refugees for transmission to other countries”: Statement of Mr.
Hoare of the United Kingdom, UN Doc. A/CONF.2/SR.35, July 25, 1951, at 9.
2767
The concern is, of course, documentation related to matters which occurred outside the
asylum country. “If an act has taken place in the country of residence, the refugee will be
able to get a certificate from the appropriate authority just like anybody else”: Grahl-
Madsen, Commentary, at 103.
2768
Statement of Mr. Herment of Belgium, UN Doc. A/CONF.2/SR.11, July 9, 1951, at 13.
Thus, in response to an Austrian amendment which would have made the duty to provide
refugees with substitute documentation purely an optional matter, the High
Commissioner for Refugees replied that he “would very much regret it if the
Conference were to adopt the Austrian amendment, which would so weaken article
[25] as to deprive it of all significance”: Statement of Mr. van Heuven Goedhart of
UNHCR, ibid. at 14. The Austrian government thereupon withdrew its proposal: ibid.
2769
The Chairman of the Ad Hoc Committee, in his capacity as representative of Canada,
proposed that the duty under Art. 25(2) should inhere only “as far as possible” or “when
possible”: Statement of the Chairman, Mr. Chance of Canada, UN Doc. E/AC.32/SR.19,
Feb. 1, 1950, at 7, 8. He subsequently withdrew his suggestions: UN Doc. E/AC.32/SR.25,
Feb. 10, 1950, at 8.
2770
“If a refugee resident in the territory of country A happened to marry, and so exercised a
right in the territory of country B, the question would arise as to which authorities were
responsible for giving him the administrative assistance which he required. In the
opinion of the Belgian delegation, as expressed in its amendment . . . the responsibility

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 4.10 judicial a nd administrative assistance 795

What sorts of documentation does Art. 25(2) envisage? A decision was taken
not to enumerate specific categories of documents, but rather to leave it to each
state to provide refugees with whatever documents are “required in the perform-
ance of the acts of civil life.”2771 The list of documents in the Secretary-General’s
original draft, itself based on the sorts of documents provided to refugees by
international authorities under earlier treaties,2772 was recommended by the
drafters as illustrative of the scope of the duty under Art. 25(2).2773 It includes
documents certifying “the position” of the refugees or their “family position and
civil status,” attestations of “the regularity” of documents issued in the refugee’s
home country, certifications to “the good character and conduct of the individual
refugee, to his previous record, to his professional qualifications2774 and to his
university degrees or academic diplomas,” and even recommendations “with a
view to obtaining visas, permits to reside in the country, admission to schools,
libraries, etc.”2775 The duty under Art. 25(2) extends to all documents and
certifications typically issued “either by the judicial or administrative authorities
of [the refugee’s] country of nationality or by its consular authorities,”2776 includ-
ing those “relating to material and legal rights.”2777
Documents issued pursuant to Art. 25(2) “shall be given credence in the
absence of proof to the contrary.”2778 The initial drafts of Art. 25 had been

should be placed squarely on the authorities of the country of residence”: Statement of

Mr. Herment of Belgium, UN Doc. A/CONF.2/SR.11, July 9, 1951, at 13. See text at note
2755. Robinson adds that “[a]lthough par. 3 does not say so, it must be assumed that such
documents or certifications are valid in all Contracting States even if delivered by the
authorities of one Contracting State (not an international authority). This conclusion is
based on the equal force of documents or certifications issued by either the international
authority or the local authorities”: Robinson, History, at 132.
2771
Statement of Mr. Cuvelier of Belgium, UN Doc. E/AC.32/SR.19, Feb. 1, 1950, at 8.
2772
Statement of Mr. Weis of the International Refugee Organization, ibid. at 8.
2773
“As an indication of the types of document which refugees may require according to the
varying practices of countries, a list is given below. This list is not intended to be
exhaustive, nor does it imply that these documents are necessary to refugees in all
countries”: Ad Hoc Committee, “First Session Report,” at Annex II.
2774
The Chairman of the Ad Hoc Committee also specifically mentioned documentation of
“medical proficiency” as an example of the type of documentation within the scope of Art.
25(2): Statement of the Chairman, Mr. Larsen of Denmark, UN Doc. E/AC.32/SR.38,
Aug. 17, 1950, at 21.
2775
Secretary-General, “Memorandum,” at 43.
2776
Ad Hoc Committee, “First Session Report,” at Annex II. Robinson goes farther, arguing
that under Art. 25(2) “Contracting States would be called upon to deliver also documents
and certifications which are to be supplied by authorities other than those of the country
of nationality of the refugee (for instance, if the refugee was born outside the country of
his nationality or married there) because in such instances the documents and certifica-
tions are usually provided through the authorities of a person’s home country which
act[s] as intermediar[y]”: Robinson, History, at 130.
2777
Statement of Mr. Fritzer of Austria, UN Doc. A/CONF.2/SR.11, July 9, 1951, at 11.
2778
Refugee Convention, at Art. 25(3).

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 796 4 ri g h t s of r e f u g e es ph y s i c a l l y p r e s e nt

framed in more emphatic terms. Under the Secretary-General’s draft, “certifi-

cates so delivered shall take the place of the original acts and documents and
shall be accorded the same validity.”2779 The French proposal went even
further, proposing that Art. 25 documents “shall rank as authentic documents
and shall take the place of the acts and documents issued in the refugee’s
country of origin.”2780 However, as a consensus emerged in the Ad Hoc
Committee that even the English affidavit system would meet the requirements
of Art. 25(2),2781 the French representative expressed his unwillingness to
accept at face value the authenticity of all such documents.2782 The
Committee’s conclusions note as well that documents issued under Art. 25
could not really be said to have the same validity as original documents; the
point was rather that they were as authentic as the secondary certifications or
attestations that would ordinarily be issued to a non-citizen by his or her
consular authorities.2783 Thus, “[s]uch documents would be accepted as evi-
dence of the facts or acts certified, in accordance with the laws of the country in
which the document is presented.”2784 In positing this clarification, the report
notes that “the Committee in no way intended to reduce the value which such
documents have under existing arrangements.”2785
This equivocation was nonetheless clearly of concern to the Belgian delegate
to the Conference of Plenipotentiaries who introduced the final wording of
Art. 25(3). He insisted that the Ad Hoc Committee’s draft should be replaced
“by some text easily capable of dispelling any doubts arising out of such
documents; that was why [Belgium] had suggested that they should be
regarded as authentic in the absence of proof to the contrary.”2786 His proposal
was adopted without opposition,2787 in consequence of which the onus must be

2779
Secretary-General, “Memorandum,” at 43. 2780 France, “Draft Convention,” at 8.
2781
See text at note 2766.
2782
“[I]n inserting the provision that the certificates delivered should rank as authentic
documents, his delegation had intended to give them the highest possible value. On
considering the type of certificates envisaged, however, he had come to the conclusion
that they could not all rank as authentic documents in the accepted meaning of that term
under French law . . . He therefore withdrew the French version of paragraph 3 in favor of
the Secretariat draft”: Statement of Mr. Ordonneau of France, UN Doc. E/AC.32/SR.19,
Feb. 1, 1950, at 8–9.
2783
“The purpose of this clause is to have the Contracting States give documents issued to
refugees the same validity as if the documents had been issued by the competent authority
of the country of nationality (within the country or by a consular agent abroad) of an
alien, or as if the act had been certified by such authority”: Ad Hoc Committee, “First
Session Report,” at Annex II.
2784
Ibid. 2785 Ibid.
2786
Statement of Mr. Herment of Belgium, UN Doc. A/CONF.2/SR.11, July 9, 1951, at 14.
2787
Both the representative of Colombia and the High Commissioner for Refugees expressed
their support for the Belgian amendment: Statements of Mr. Giraldo-Jaramillo of
Colombia and Mr. van Heuven Goedhart of UNHCR, ibid. at 14. The Belgian amend-
ment was adopted without dissent on a 17–0 (5 abstentions) vote: ibid. at 15.

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 4.10 judicial and administrative assistance 797

understood to fall squarely on a government to whom an Art. 25 document is

presented to show why it ought not to be relied upon.2788 As Robinson
concludes, “such documents or certifications possess a lesser degree of validity
than ordinary documents (which is inherent in the circumstance that their
delivery is often based on insufficient proofs) and may be annulled or modified
by contrary evidence. However, as long as such contrary evidence is not
available, the documents and certifications are to serve the same purpose as
official instruments of the national authorities.”2789

4.10.2 Access to Courts

Despite the importance of each state party’s commitment to provide administra-
tive assistance to refugees, the downside of this approach – as cogently observed
by Mr. Herment of Belgium – is that “when the authorities of the receiving
country were called upon to consider a complaint or a protest from a refugee,
they would always be both judge and party to the dispute.”2790 In view of this
potential conflict of interest, it was to be expected that refugees would in at least
some instances turn to the courts of a state party to enforce their rights, whether
based specifically on Convention entitlements or on Art. 7(1)’s attribution to
refugees of the rights inhering in aliens generally.2791 To this end, there was
general agreement to adopt Art. 16(1), derived almost literally from the guarantee
in both the 1933 and 1938 treaties of “free and ready access to the courts of
law”2792 in the territory of any state party.2793 Situations such as that in Georgia –
where deficiencies in accessing the general legal system leave refugees with only
their own traditional dispute resolution mechanisms2794 – clearly deprive refugees
of the intended mechanism to bring Convention rights to bear.
Importantly, Art. 16(1) is not limited to a right to access the courts of the
country in which the refugee is located.2795 In the words of the President of the
2788
Lester takes the view that “[s]uch credence is only rebuttable if there is proof, not just
evidence, to the contrary”: Lester, “Article 25,” at 1145.
2789
Robinson, History, at 132. See also Grahl-Madsen, who notes that “[t]aking into consid-
eration the basis on which the documents . . . often shall have to be issued (corroborated
or uncorroborated statements by the persons concerned) it seems that the Conference has
made a sound ruling”: Grahl-Madsen, Commentary, at 108.
2790
Statement of Mr. Herment of Belgium, UN Doc. A/CONF.2/SR.11, July 9, 1951, at 12.
2791
See Chapter 3.2.
2792
An American court has, however, ruled in a case brought by a resident refugee against his
country of origin that the requirements of the Refugee Convention do not amount to a
waiver of foreign sovereign immunity: Peter George Odhiambo v. Republic of Kenya,
[2014] WL 4251156 (US CADC, Aug. 29, 2014), at [4].
2793
Ad Hoc Committee, “First Session Report,” at Annex I. This right is, in any event, part of
customary international law on the protection of aliens: see Chapter 1.1 at note 7.
2794
See text at note 2712.
2795
“[D]espite the reference to territory, Art. 16, para. 1 does not require physical presence of
the refugee on the territory of the State whose courts he or she wishes to access”:

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 798 4 ri g ht s of re f u g e es p hy s i c a l l y p r e s e n t

Conference of Plenipotentiaries, Art. 16(1) “stipulated that a refugee should

not only have free access to the courts in the country where he resided, but to
the courts in the territory of all contracting States.”2796 Nor do rights inhere
only in refugees once they are granted a right to enter or remain in a given state.
To the contrary, the drafting history makes quite clear that Art. 16(1) rights
inhere in all refugees, whether or not they have been admitted to a state.2797 As
the American representative noted, “persons who had only recently become
refugees and therefore had no habitual residence were . . . covered by the
provisions of . . . paragraph 1.”2798 Indeed, as the English High Court observed,
any other interpretation might well frustrate the essential purposes of the
Convention:

The use of the word “refugee” [in Art. 16(1)] is apt to include the aspirant,
for were that not so, if in fact it had to be established that he did fall within
the definition of “refugee” in article 1, he might find that he could have no
right of audience before the court because the means of establishing his
status would not be available to him.2799

Thus, subject only to the issue of subject-matter jurisdiction noted below,2800

the efforts of an increasing number of countries to deny access to their courts
to refugees seeking the review or appeal of a negative assessment of refugee
status – for example, the refusal of Canada to allow appeals by claimants from
“designated” countries2801 – are prima facie incompatible with Art. 16(1) of the
Convention.2802

B. Elberling, “Article 16,” in A. Zimmermann ed., The 1951 Convention Relating to the
Status of Refugees and its 1967 Protocol: A Commentary 931 (2011) (Elberling, “Article
16”), at 938.
2796
Statement of the President, Mr. Larsen of Denmark, UN Doc. A/CONF.2/SR.8, July 5,
1951, at 13. The mechanics of this duty were explained in comments by the Israeli
representative, Mr. Robinson, ibid. at 12: “Assuming, for instance, that the
Governments of the United Kingdom and Yugoslavia were both parties to the
Convention, and that a refugee resident in the United Kingdom wished to sue a debtor
in Yugoslavia, the legal authorities in the latter country would ask the United Kingdom
authorities whether the claimant was a refugee. If the answer was in the affirmative, the
problem would be solved for the Yugoslav Court. It seemed to him that the issue was
perfectly straightforward.”
2797
As framed in the Secretary General’s original proposal, “[r]efugees are to have free access
to justice, not only in their own country of residence, but in any other country party to the
Convention”: Secretary-General, “Memorandum,” at 30.
2798
Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.25, Feb. 10, 1950,
at 6.
2799
R v. Secretary of State for the Home Department, ex parte Jahangeer et al., [1993] Imm AR
564 (Eng. QBD, June 11, 1993), per Jowitt J. at 566.
2800
See text at note 2816. 2801 See text at note 2721.
2802
Elberling takes a more benign view of “manifestly unfounded” and “safe country”
regimes, suggesting that “generally speaking they can more easily be construed as relating
to the specifics of the substance matter and the case at hand and thus falling on the

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 4.10 judicial and administrative assistance 799

Only two, fairly modest, amendments were made to the original proposal
for what became Art. 16(1).2803 First, the English-language text was altered to
refer only to “free access” to the courts (rather than “free and ready access”) on
the grounds that “in English, the words ‘free’ and ‘ready’ were synonymous in
the context if used alone, but in conjunction ‘free’ might mean without
payment of court fees.”2804 The clear intention, affirmed by the decision not
to amend the French-language text (which continues to refer to “libre et facile
accès devant les tribunaux”),2805 is that while refugees may be expected to pay
the usual fees to access the courts,2806 state parties must not seek in any way to
impede their resort to the courts. As Elberling concludes, this duty both
“precludes any restrictions that are imposed upon them on account of their
refugee status [and] . . . requires some measure of effectiveness of access –
where access to court is formally granted, but in fact made impossible by, e.g.,
overly stringent formal requirements, it cannot be considered ‘free.’”2807 The
effective denial of any access to domestic courts by Kenya to refugees living in
Kakuma camp2808 was therefore clearly an infringement of Art. 16(1).
The second amendment made by the drafters was to vary the title of Art. 16
to the more general “access to the courts,” rather than the arguably more
constrained “right to appear before the courts as plaintiff or defendant.”2809
While this change of title does not appear to have been formally debated by the
Ad Hoc Committee,2810 the new title nonetheless neatly affirms the ordinary
meaning of the language used in Art. 16(1). The provision clearly entitles
refugees to engage in private litigation as a means of enforcing their rights –
specific reference was made, for example, to the right of refugees to sue for

‘substantive law/subject-matter side of the . . . divide’”: Elberling, “Article 16,” at 946.

While this categorization is of course arguable, subject-matter jurisdiction generally
refers to the type of case or controversy at hand, e.g. refugee status assessment or judicial
review of detention, rather than to specific rules about how sub-types of such claims are to
be addressed.
2803
France, “Draft Convention,” at 4. The members of the Ad Hoc Committee preferred this
draft to that presented by the Secretary-General: UN Doc. E/AC.32/SR.11, Jan. 25, 1950,
at 7–8.
2804
Statement of Sir Leslie Brass of the United Kingdom, ibid. at 7.
2805
On the motion of the Israeli representative, the English version of Art. 16(1) was
amended to meet the British delegate’s concerns, though the French-language text was
explicitly left unamended: Statement of Mr. Robinson of Israel, ibid. at 7.
2806
The fees assessed may not be higher than those assessed to nationals: Refugee
Convention, at Art. 29. Refugees who have established “habitual residence” in a state
party may claim the right to dispensation from some of the usual financial barriers to
accessing the courts, in particular the duty to post security for costs and to receive legal
aid. These matters are addressed by Art. 16(2)–(3) of the Convention: see Chapter 5.5.
2807
Elberling, “Article 16,” at 939. 2808 See text at note 2711.
2809
France, “Draft Convention,” at 4. The title proposed in the Secretary-General’s draft was
even more narrow (“the right to sue and be sued”): Secretary-General, “Memorandum,”
at 29.
2810
The change first appears in Ad Hoc Committee, “First Session Report,” at Annex I.

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 800 4 r ights of r efugees p hysically present

divorce2811 or to recover a debt.2812 But the right of access to the courts is

framed as a general right,2813 in no sense limited to access for purposes of
launching or defending a civil suit. In principle, Art. 16(1) therefore governs
when refugees seek to litigate their Convention or any other rights before
domestic courts.2814
The challenge, however, is that Art. 16(1) is only a guarantee that refugees
may access whatever judicial remedies exist in the state party. The Refugee
Convention does not stipulate the subject-matter jurisdiction of a state’s
courts, but requires simply that whenever the courts have competence over a
given matter, refugees must have unimpeded access to the courts to enforce
relevant claims.2815 As such, where the courts lack subject-matter jurisdiction
to entertain claims of the kind being advanced by refugees, Art. 16(1) does not
provide a remedy.2816 The failure of laws in Angola2817 and the United
States2818 to authorize the judicial review of an administrative decision to
detain a refugee claimant thus deprives refugees of the ability to invoke Art.

2811
Statement of Mr. Larsen of Denmark, UN Doc. E/AC.32/SR.11, Jan. 25, 1950, at 7.
2812
Statement of Mr. Robinson of Israel, UN Doc. A/CONF.2/SR.8, July 5, 1951, at 12.
2813
Art. 16(1) “applies . . . to any type of legal proceedings”: Elberling, “Article 16,” at 939.
2814
In line with the approach, the Court of Justice of the European Union has determined that
“the protection inherent in the right to an effective remedy and in the principle of non-
refoulement requires that [an] applicant should have available to him a remedy enabling
automatic suspension of enforcement of the measure authorising his removal” in order
that he may seek protection “before at least one judicial body”: X v. Netherlands, Dec. No.
C-175/17 (CJEU, Sept. 26, 2018), at [32]–[33]. The same court has more recently
disallowed the mechanical application of a strict time limit for review of protection
requests, insisting on the primary importance of respect for the procedural and substan-
tive requirements of access to effective judicial protection: PG v. Hungary, Dec. No. C-406
(CJEU, Mar. 19, 2020), at [37]; LH v. Hungary, Dec. No. C-564/18 (CJEU, Mar. 19, 2020),
at [77].
2815
Cantor goes somewhat farther, suggesting that “Article 16(1) may require that States not
withdraw existing rights of access to the courts by putative refugees to challenge negative
administrative decisions on refugee status”: D. Cantor, “Reframing Relationships:
Revisiting the Procedural Standards for Refugee Status Determination in Light of
Recent Human Rights Treaty Body Jurisprudence,” (2015) 34 Refugee Survey Quarterly
79 (Cantor, “Reframing Relationships”), at 85.
2816
UNHCR nonetheless significantly overstates the challenge posed by the need to establish
subject-matter jurisdiction when it opines that the “[p]rovisions [of the Convention] that
define the legal status of refugees and their rights . . . have no influence on the process of
determination of refugee status [emphasis added]”: UNHCR, Handbook, at [12(ii)].
UNHCR provides no argument in support of this overly broad position which is, for
reasons set out here, at odds with the general ambit of Art. 16(1) of the Convention. At
least one court, however, has taken note of UNHCR’s views on this subject: Krishnapillai
v. Minister of Citizenship and Immigration, [2002] 3(1) FC 74 (Can. FCA, Dec. 6, 2001), at
[26] – though it nonetheless proceeded to analyze whether Canadian refugee procedures
met the Art. 16(1) standard: ibid. at [30]–[32]. See also R v. Secretary of State for the Home
Department, ex parte Jahangeer et al., [1993] Imm AR 564 (Eng. QBD, June 11, 1993).
2817
See text at note 2719. 2818 See text at note 2718.

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 4.10 j udi ci al an d admi n i s t r ative assistanc e 801

16 in aid of any effort to contest their indefinite detention before that country’s
courts.
On its face, the Civil and Political Covenant might seem to offer relief
against this jurisdictional gap. In both criminal proceedings and “in a suit at
law,”2819 the second sentence of Art. 14(1) requires that “everyone shall be
entitled to a fair and public hearing by a competent, independent and impartial
tribunal established by law,”2820 thus effectively setting a duty to make provi-
sion for jurisdiction in such cases.2821 The Human Rights Committee has
adopted the view that whether a matter is a suit at law giving rise to the
entitlement to access to a fair hearing follows from analysis of “the nature of
the right in question rather than on the status of one of the parties or the
particular forum,”2822 and includes not only the determination of private law
rights and obligations, but also “equivalent notions in the area of administra-
tive law”2823 and “other procedures . . . assessed on a case by case basis in the
light of the nature of the right in question.”2824 While the case law of the
Human Rights Committee is less than clear,2825 the critical question seems to
be whether a right, rather than a privilege, is at stake.2826 As such, and because
the policies of ongoing detention of refugee claimants by Angola and the
United States described above2827 raise issues of clearly protected core liberties,
a challenge to those policies should be deemed a suit at law, thus giving rise to
an entitlement to a “fair and public hearing by a competent, independent and
impartial tribunal established by law”2828 – effectively overriding the failure of
domestic law to provide for such a hearing.
Whether refugee status assessment is also a suit at law subject to the due
process guarantees in the second sentence of Art. 14 has, however, proved
more contentious. The traditional position was that they are:

2819
Civil and Political Covenant, at Art. 14(1). 2820 Ibid.
2821
“In certain circumstances the failure of a State party to establish a competent court to
determine rights and obligations may amount to a violation of article 14(1)”: Apirana
Mahuika et al. v. New Zealand, HRC Comm. No. 547/1993, UN Doc. CCPR/C/70/D/547/
1993, decided Oct. 27, 2000, at [9.11].
2822
UN Human Rights Committee, “General Comment No. 32: Right to Equality before
Courts and Tribunals and to a Fair Trial” (2007), UN Doc. CCPR/C/GC/32, Aug. 23,
2007, at [13].
2823
Ibid. 2824 Ibid.
2825
“The cases do not provide clear guidance as to the definition of a ‘suit at law’”: Joseph and
Castan, ICCPR, at 439.
2826
“[T]he right to access a court or tribunal as provided for by article 14, paragraph 1, second
sentence, does not apply where domestic law does not grant any entitlement to the person
concerned”: UN Human Rights Committee, “General Comment No. 32: Right to
Equality before Courts and Tribunals and to a Fair Trial” (2007), UN Doc. CCPR/C/
GC/32, Aug. 23, 2007, at [17].
2827
See text at notes 2718–2719.
2828
Civil and Political Covenant, at Art. 14(1), second sentence.

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 802 4 rights of r efugees physically present

Immigration hearings and deportation proceedings may be suits at law.

The [UN Human Rights] Committee considered a Salvadoran’s claim
that Canada violated his right to a fair hearing in deportation proceed-
ings. Canada argued that deportation proceedings were not suits at law
and thus not subject to Article 14(1). The Committee did not accept
Canada’s argument and stated explicitly that such proceedings were suits
at law.2829

In line with this understanding, as recently as 2006 the Human Rights

Committee engaged the merits of a claim that Australia’s Refugee Review
Tribunal lacked independence – a claim that would only have been relevant
if that tribunal’s refugee status assessments were understood to be “suits at law”
subject to the requirements of the second sentence of Art. 14.2830
2829
UN Sub-Commission on Prevention of Discrimination and Protection of Minorities,
“The Right to a Fair Trial: Current Recognition and Measures Necessary for its
Strengthening,” UN Doc. E/CN.4/Sub.2/1991/29, July 5, 1991, at [80], citing the decision
of the Committee on Human Rights in VMRB v. Canada, decided July 18, 1988, Annex
VIII.F. A follow-up report containing a draft Body of Principles to promote the right to a
fair trial similarly indicated that because the relevant consideration is “the character of the
rights at issue,” the right to a fair trial inheres not just in the context of formal judicial
action, but also in “proceedings before administrative tribunals”: UN Sub-Commission
on Prevention of Discrimination and Protection of Minorities, UN Doc. E/CN.4/Sub.2/
1994/24, June 3, 1994, at Annex II, [74(b)]. More generally, the same follow-up report
concluded that “[i]f a person’s rights and obligations may be adversely affected in a suit at
law or by particularized actions or inactions taken or proposed by a public authority, the
court or the public authority shall give the person . . . a fair and public hearing by a
competent, independent and impartial tribunal established by law”: ibid. at Annex II, [4].
The expert reports by Special Rapporteurs Chernichenko and Treat were endorsed by the
Sub-Commission in Res. 1994/35, Aug. 26, 1994; and subsequently by the Commission
on Human Rights, UN Doc. E/CN.4/1997/2, Nov. 25, 1996, at [5].
2830
Olga Dranichnikov v. Australia, HRC Comm. No. 1291/2004, UN Doc. CCPR/C/88/D/
1291/2004, decided Oct. 20, 2006, at [7.2]. See also Adu v. Canada, HRC Comm. No. 654/
1995, UN Doc. CCPR/C/60/D/654/1995, decided July 18, 1997, at [6.3]: “The author
claims that the hearing was not fair, as one of the two Commissioners who participated
was of Ghanaian origin and a member of the Ewe tribe whose hostile attitude towards
Ghanaian refugees was said to be well known among members of the Ghanaian commu-
nity in Montreal. However, neither the author nor his counsel raised objections to the
participation of the Commissioner in the hearing until after the author’s application for
refugee status had been dismissed despite the fact that the grounds for bias were known to
the author and/or his counsel at the beginning of the hearing. The Committee is therefore
of the opinion that the author has failed to substantiate, for purposes of admissibility, his
claim that his right to a fair hearing by an impartial tribunal was violated.” Similarly, the
Committee Against Torture determined in its review of Venezuela’s compliance with that
treaty that “[t]he State party should regulate procedures for dealing with and deciding on
applications for asylum and refugee status which envisage the opportunity for the
applicant to attend a formal hearing and to make such submissions as may be relevant
to the right which he invokes, including pertinent evidence, with protection of the
characteristics of due process of law”: UN Committee Against Torture, “Concluding
Observations on the Report of Venezuela,” UN Doc. A/54/44 (1999), at [147].

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 4.10 judicial and administrative assistance 803

This inclusive approach to understanding a suit at law came to a grinding

halt in 2007. In an uncharacteristically opaque new general comment, the
Human Rights Committee – despite affirming its traditional view of the
basic features of a suit at law requiring access to a fair hearing2831 – opted to
treat “extradition, expulsion and deportation procedures” as inherently
excluded from the notion of “suits at law.”2832 No reasoning was provided
for this volte-face,2833 though a footnote referencing two contemporaneous
decisions of the Committee suggests a rather simplistic rationale: because
expulsion is governed by Art. 13 of the Covenant, that provision should be
treated as the sole source of relevant rights.2834 Subsequent decisions sadly
seem to affirm this rationale, finding, for example, in the case of a Pakistani
woman alleging risk of sexual assault and murder after she defected from and

2831
UN Human Rights Committee, “General Comment No. 32: Right to Equality before
Courts and Tribunals and to a Fair Trial” (2007), UN Doc. CCPR/C/GC/32, Aug. 23,
2007, at [16].
2832
Ibid. at [17]. See generally Cantor, “Reframing Relationships,” 87. In the much narrower
circumstance of a risk to rights guaranteed by Arts. 6 or 7 of the Covenant, there is likely a
duty to provide an effective remedy against removal: ibid. at 88.
2833
The jurisprudence under Art. 6 of the European Convention on Human Rights may be of
influence, as suggested by the government’s submission in Diene Kaba v. Canada, HRC
Comm. No. 1465/2006, UN Doc. CCPR/C/98/D/1465/2006, decided May 21, 2010, at
[4.12], n. 14. This would be regrettable since the scope of Art. 6 of the regional treaty is
much more limited. Rather than governing “suits at law,” it sets due process guarantees
only in the context of a “determination of [one’s] civil rights and obligations or of any
criminal charge”: European Convention on Human Rights, at Art. 6(1).
2834
In the first case cited, it was held that “[i]n the present case, the proceedings relate to the
right of the author, who was a lawful permanent resident, to continue residing in the State
party’s territory. The Committee considers that proceedings relating to an alien’s expul-
sion, the guarantees of which are governed by Article 13 of the Covenant, do not also fall
within the ambit of a determination of ‘rights and obligations in a suit at law,’ within the
meaning of article 14, paragraph 1”: Ernst Zundel v. Canada, HRC Comm. No. 1341/
2005, UN Doc. CCPR/C/89/D/1341/2005, decided Mar. 20, 2007, at [6.8]. The Zundel
decision itself drew only on earlier decisions that a claim for a disability pension (YL v.
Canada, 1986) and contesting employment dismissal (Casanovas v. France, 1994) were
suits at law, whereas a complaint of failure to confer an academic title (Dimitrov v.
Bulgaria, 2005) was not. This dichotomy seems actually to argue against the logic of the
Human Rights Committee’s new position, since the cases recognized as suits at law
involved contestation about rights whereas the one rejected concerned a situation in
which there was “no information before the Committee to show that the author had any
right to have the title of professor conferred on him or that the Presidium was under any
obligation to endorse his candidature”: Dimitar Atanasov Dimitrov v. Bulgaria, HRC
Comm. No. 1030/2001, UN Doc. CCPR/C/85/D/1030/2001, decided Oct. 28, 2005, at
[8.3]. Clearly refugee protection (and indeed “extradition, expulsion, and deportation”)
involves rights, not just privileges. The second case cited by the Human Rights
Committee in support of the new position (Mario Esposito v. Spain, HRC Comm. No.
1359/2005, UN Doc. CCPR/C/89/D/1359/2005, decided Mar. 20, 2007, at [7.6]) actually
has no relevance to the shift in understanding of a “suit at law,” but speaks instead to the
scope of “determination of a criminal charge.”

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 804 4 righ t s of r efug ee s ph y sica lly p r es en t

denounced the governing party that “the proceedings relate to the author’s
right to receive protection in the State party’s detention. The Committee
considers that proceedings relating to an alien’s expulsion, the guarantees in
regard to which are governed by article 13 of the Covenant, do not also fall
within the ambit of a determination of ‘rights and obligations in a suit at law,’
within the meaning of article 14, paragraph 1.”2835 On the basis of such
reasoning, it is, for example, doubtful that Art. 14 could be successfully invoked
to contest the refusal of the United States to grant all refugee claimants a full
evidentiary hearing on the merits of their claims to withholding of removal.2836
This is a very unfortunate construction of a “suit at law” for a number of
reasons. First, the categorical ruling out of all claims concerning extradition,
expulsion, and deportation is at odds with the Committee’s own commitment
to making the suit at law determination on a “case by case basis in the light of
the nature of the right in question.”2837 Second, since extradition, expulsion,
and deportation all involve the adjudication of rights that have typically been
domesticated in the state party, the Committee’s approach falls afoul of its
position that the core attribute of a suit at law is whether “domestic law . . .
grant[s] any entitlement to the person concerned,”2838 rather than being
simply an issue of privilege or discretion. Third, the Committee does not in
other contexts take the view that the fact that a given matter is regulated by one
provision of the Covenant means that other provisions are thereby rendered
inapplicable; to the contrary, its jurisprudence routinely finds multiple
breaches arising from a single set of facts. And fourth and most specifically,
even if it is somehow correct that Art. 13 is the only provision of the Covenant
governing expulsion procedures, it would still make no sense to rule out all

2835
PK v. Canada, HRC Comm. No. 1234/2003, UN Doc. CCPR/C/89/D/1234/2003, decided
Mar. 20, 2007, at [7.5]. See also Arusjak Chadzjian v. Netherlands, HRC Comm. No. 1494/
2006, UN Doc. CCPR/C/93/D/1494/2006, decided July 22, 2008, at [8.4]; Surinder Kaur v.
Canada, HRC Comm. No. 1455/2006, UN Doc. CCPR/C/94/D/1455/2006, decided Oct.
30, 2008, at [7.5]; X v. Denmark, HRC Comm. No. 2007/2010, UN Doc. CCPR/C/110/D/
2007/2010, decided May 12, 2014, at [8.5]; and Osayi Omo-Amenaghawon v. Denmark,
HRC Comm. No. 2288/2013, UN Doc. CCPR/C/114/D/2288/2013, decided Sept. 15,
2015, at [6.4].
2836
See text at note 2717.
2837
UN Human Rights Committee, “General Comment No. 32: Right to Equality before
Courts and Tribunals and to a Fair Trial” (2007), UN Doc. CCPR/C/GC/32, Aug. 23,
2007, at [16].
2838
UN Human Rights Committee, “General Comment No. 32: Right to Equality before
Courts and Tribunals and to a Fair Trial” (2007), UN Doc. CCPR/C/GC/32, Aug. 23,
2007, at [17]. The early jurisprudence of the Human Rights Committee had found, for
example, that a claim for a disability pension (YL v. Canada, HRC Comm. No. 112/1981,
decided Apr. 8, 1986), an application to dissolve a labor contract (Van Meurs v.
Netherlands, HRC Comm. No. 215/1986, decided July 13, 1990), and professional
conduct regulation (JL v. Australia, HRC Comm. No. 491/1992, UN Doc. CCPR/C/45/
D/491/1992, decided July 29, 1992) were all suits at law.

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 4.10 judicial and administrative assistance 805

refugee protection claims on this basis:2839 while non-removal is of course a

key consequence of refugee status recognition, the bulk of Convention refugee
status is addressed to other issues, including in particular access to critical
socioeconomic and other rights.
It remains, though, that until and unless the Human Rights Committee can
be persuaded to revisit its unfortunate understanding of a suit at law, the most
critical benefit of Art. 14 of the Covenant – to secure access to a fair and public
hearing by a competent, independent and impartial tribunal established by
law2840 – is likely to be found inapplicable to refugee status determination.2841
In the result Art. 14 as presently understood provides no basis to contest
Canada’s truncated procedures where refugee claims raise national security
concerns,2842 or even Australia’s refusal to allow its courts or tribunals any
jurisdiction to engage with the claims of refugees under its jurisdiction slated
for transfer to Nauru or Papua New Guinea.2843
Equally of concern, the Human Rights Committee’s view of a suit at law
under Art. 14 means that refugee status assessment is subject to only the
limited guarantees in the first sentence of Art. 142844 which “concern[] access
to first instance procedures and do[] not address the issue of the right to appeal
or other remedies.”2845 In consequence refugees cannot rely on Art. 14 to
2839
“Overall . . . it is evident that the Committee views refugee status determination as
intrinsically related to expulsion”: Cantor, “Reframing Relationships,” at 89.
2840
Civil and Political Covenant, at Art. 14(1).
2841
In contrast, the Court of Justice of the European Union has affirmed that European
Union law requires an oral hearing except in relation to manifestly unfounded cases, i.e.
“where the case does not raise any questions of fact or law that cannot be adequately
resolved by referring to the file and the written submissions of the parties”: Moussa Sacko
v. Italy, Dec. No. C-348/16 (CJEU, July 26, 2017), at [46]–[47].
2842
See text at notes 2715–2716.
2843
See text at note 2720. While Elberling suggests that such regimes fall afoul of Art. 16(1) of
the Refugee Convention, this view is difficult to reconcile to his (correct) position that
under that provision states remain free to determine the subject-matter jurisdiction of
their courts: Elberling, “Article 16,” at 944–945.
2844
Refugees seeking the fair assessment of their status would still be able to claim the more
basic guarantees in the first sentence of Art. 14 (not limited to suits at law and criminal
proceedings), at least insofar as they invoke a domestic law that entrusts “a judicial body
with a judicial task”: UN Human Rights Committee, “General Comment No. 32: Right to
Equality before Courts and Tribunals and to a Fair Trial” (2007), UN Doc. CCPR/C/GC/
32, Aug. 23, 2007, at [7]. This entitlement is, however, quite basic as it includes only the
rights to equal access, equality of arms, and to be treated without discrimination: ibid. at
[8]. As Schabas explains, “[t]he right to equality before the courts in the first sentence of
Art. 14(1) is a specific manifestation of the general right of equality (Art. 26)”: Schabas,
Nowak’s CCPR Commentary, at 353. Insofar as the refugee seeks to resist expulsion (now
conceived to include extradition, expulsion, or deportation) the procedural guarantees of
Art. 13 analyzed at Chapter 5.1 also apply.
2845
UN Human Rights Committee, “General Comment No. 32: Right to Equality before
Courts and Tribunals and to a Fair Trial” (2007), UN Doc. CCPR/C/GC/32, Aug. 23,
2007, at [12].

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 806 4 righ ts of r efug ee s ph y sica lly p r es en t

challenge the European Union rules allowing deportations to proceed before

appeals are heard,2846 the British seven-day limit to appeal a fast track deci-
sion,2847 or even Hungary’s three-day appeal deadline accompanied by
removal to a transit zone.2848
The Human Rights Committee’s position means moreover that the
Covenant is now misaligned with the insistence of senior courts that access
to a review or appeal of negative refugee status assessments is vital. For
example, in considering a challenge to sweeping privative legislation in relation
to the review of refugee claims, the High Court of Australia determined that “if
read literally, . . . [the new law] would purport to oust the jurisdiction of this
court.”2849 In rejecting such an interpretation, the High Court noted that “[i]f
tribunals were to be at liberty to exceed their jurisdiction without any check by
the courts, the rule of law would be at an end.”2850 Much the same view is
reflected in the decision of the European Union to codify the right of refugee
claimants to “an effective remedy,” including in particular the right to apply to
a court or tribunal to review a refusal or withdrawal of refugee status.2851 Nor is
access to the courts by refugees required only to contest a denial of protected
status; rather, as the English Court of Appeal has determined, it must be
provided whenever Refugee Convention rights are at stake:

The Convention requires [state parties] to grant certain rights to refugees,

who have fled from their home countries . . . Refugees who arrive in this
country are anxious to have their status as refugees established. This is not
merely because recognition of their refugee status will carry with it the
entitlement to remain here, but because it will ensure they are accorded
Convention rights while they are here . . . There is no doubt that this

2846
See text at note 2724. Yet French accelerated “priority” procedures providing for appeals
without suspensive effect drew a rebuke from the UN Committee Against Torture:
“Concluding Observations by the Committee against Torture – France,” UN Doc.
CAT/C/FRA/CO/4–6, May 20, 2010, at [14]; see also AEDH et al., “‘Safe’ Countries: A
Denial of the Right to Asylum,” May 2016, at 9–10.
2847
See text at note 2723. Yet in declaring the procedure to be ultra vires, the English Court of
Appeal found the system “structurally unfair and unjust. The scheme does not adequately
take account of the complexity and difficulty of many asylum appeals, the gravity of the
issues that are raised by them and the measure of the task that faces legal representatives
in taking instructions from their clients who are in detention”: The Lord Chancellor v.
Detention Action, [2015] EWCA Civ 840 (Eng. CA, July 29, 2015), at [45].
2848
See text at note 2725. The right to an effective judicial remedy under European Union law
is, however, likely infringed where there is a tight deadline of this kind: LH v. Hungary,
Dec. No. C-564/18 (CJEU, Mar. 19, 2020), at [73].
2849
S157/2002 v. Commonwealth of Australia, [2003] HCA 2 (Aus. HC, Feb. 4, 2003), per
Gleeson C.J.
2850
Ibid.
2851
EU Procedures Directive (recast), at Art. 46; X v. Netherlands, Dec. No. C-175/17 (CJEU,
Sept. 26, 2018), at [32]–[33].

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 4.10 judi cial and administrati ve assi stance 807

country is under an obligation under international law to enable those who

are in truth refugees to exercise their Convention rights . . .
An interpretation of the Rules which permitted the Secretary of State to
refuse asylum to a refugee on the ground that he had been granted
[permission to remain] would . . . be in conflict with the UK’s obligations
under the Convention in relation to the treatment of refugees living within
this country.2852

This recognition that there must be an ability to appeal a decision to decline

recognition of refugee status may, of course, be subject to a fairly administered
requirement to seek leave or permission to present one’s case to a court. As the
Canadian Federal Court of Appeal helpfully observed in an analysis of Art. 16
of the Refugee Convention,

Article 16 does not define a special procedure nor does it provide for
special procedures for refugees. Quite to the contrary: in granting refugees
the right to equal treatment before the courts, it implicitly recognizes that
refugees are subject to the procedures available in the country in which
[they reside]. Article 16 does not impose on the state the obligation to
make available to refugees because they are refugees the most favorable
procedures that can be put in place.
There is no doubt that the right to apply for leave is a right of access to
courts. Leave requirement is a usual procedure in Canadian law and it is, in
Canadian terms, an accepted form of access to the courts of the
country.2853

In sum, Art. 25 of the Refugee Convention requires each state party to

establish a mechanism that enables refugees – including those seeking recog-
nition of their status – to access their Convention rights. One aspect of this
duty of administrative assistance is to provide refugees with the documentation
required both for the vindication of their rights and more generally to engage
in civil life. Recognizing that refugees might at times require a means to enforce
their claims, Art. 16 of the Refugee Convention further provides that a refugee
must be allowed freely to access the courts in the country where he or she is
living or in any other state party in order to vindicate rights or to pursue civil
suits. This is true, however, only insofar as those courts have relevant subject-
2852
Saad v. Secretary of State for the Home Department, [2001] EWCA Civ 2008 (Eng. CA,
Dec. 19, 2001), per Lord Phillips MR at [1], [2], [11], [65]. Under European Union law, an
appeal or review of the denial or withdrawal of refugee status need not be provided
“[w]here the subsidiary protection status granted by a Member State offers the same
rights and benefits as those offered by the refugee status under Union and national law”:
EU Procedures Directive, at Art. 46(2). Reliance on this provision is lawful so long as the
rights and benefits “under Union and national law” are in fact no less generous than those
which must be provided under the Refugee Convention.
2853
Krishnapillai v. Minister of Citizenship and Immigration, [2002] 3(1) FC 74 (Can. FCA,
Dec. 6, 2001), at [31]–[32], per Décary J.A.

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 808 4 righ t s of r e f ugee s ph y sica lly pr es en t

matter jurisdiction. This potential jurisdictional deficit may be overcome by

invocation of Art. 14(1) of the Civil and Political Covenant insofar as the claim
in question is a “suit at law” – likely including, for example, the contestation of
matters such as unlawful detention, but – on the basis of recent unfortunate
guidance from the Human Rights Committee – likely not the process of
refugee status assessment itself or access to a review or appeal of same.
Even where a refugee is entitled to access the courts of a state party, the
invocation of international legal duties may of course remain a challenge. Most
fundamentally, international legal duties may not be directly incorporated into
the laws of the state in question; in common law countries, for example, in the
absence of domestication of the treaty courts may therefore be able to take
account of international law only indirectly by reliance on principles of
statutory interpretation. In addition, litigation is often a very expensive pro-
cess. While the drafters of the Refugee Convention did ultimately agree to help
refugees overcome some of the practical impediments to accessing the courts
(including by assimilating them to nationals for purposes of the duty to post
security for costs, and under legal aid schemes), these more sophisticated rights
are reserved for refugees who have established habitual residence in a state
party.2854

2854
See Chapter 5.5.

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 5

Rights of Refugees Lawfully or Habitually Present

As the degree of attachment between a refugee and a state party increases, so

too do the rights which the refugee may claim. All of the rights acquired by
simple physical presence – to enter and remain in the asylum state; freedom
from arbitrary detention or penalization for illegal entry; protection of physical
security; access to the necessities of life; protection of property; respect for
family unity; free exercise of thought, conscience, and religion; access to basic
education; documentation of identity and status; and to benefit from adminis-
trative assistance and access to the courts – continue for the duration of refugee
status. But once a refugee is not only in fact under the jurisdiction of a state
party to the Convention, but also lawfully present in that country, he or she
acquires several additional rights.
First, a refugee who is lawfully present enjoys both substantive and proced-
ural protections against expulsion. These guarantees govern any effort to
remove the refugee to any country, and are in addition to the right not to be
sent to a country in which there is a risk of being persecuted.1
Second, lawfully present refugees enjoy a presumptive right to freedom of
internal movement. As previously observed, the Refugee Convention grants
states only a limited prerogative to detain a person seeking refugee status until
his or her identity is established, basic security concerns are investigated, and
the asylum-seeker’s cooperation is secured for purposes of conducting all
necessary investigations into his or her claim to protection. Once these con-
cerns have been addressed, the refugee’s presence has been regularized in the
receiving state, and refugee-specific restrictions on freedom of movement must
come to an end.2
Third and finally, refugees who are lawfully present are explicitly entitled to
engage in self-employment. While permission to engage in employment or
professional practice may be withheld until the refugee is authorized to remain
in the asylum state (for example, consequent to the formal recognition of
refugee status), mere lawful presence entitles the refugee to engage in inde-
pendent income-generating activities. This right is a pragmatic means by
which to allow refugees to fund their own necessities of life,3 but without

1 2 3
See Chapter 4.1. See Chapter 4.2.4. See Chapter 4.4.
809

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 810 5 r i g h t s of r ef u g e e s l a wf u l l y p r e s e n t

thereby sanctioning integration into the more organized structures of the

asylum state’s economic life.
In addition to rights that apply once a refugee is lawfully present, two
Convention rights – to enjoy protection of intellectual property rights4 and
to benefit from assistance to access the courts5 – are framed as inhering in
refugees who are “habitually resident” in a state party. The meaning of this
term derives from private international law, with a focus on identifying the
individual’s center of interests – normally the state where they are presently
staying after having claimed refugee status.6 While in theory habitual residence
might embrace also refugees who have yet to regularize their status by seeking
asylum,7 it is generally agreed that illegality of presence is a strong proxy
against a finding of habitual residence.8 As such, habitually present refugees
are normally also lawfully present refugees, with the combined notion of lawful
or habitual presence fairly describing refugees who are present with the per-
mission or acquiescence of the state but whose refugee status may not yet have
been formally recognized.
As addressed earlier,9 a refugee is lawfully present in any of three circum-
stances. First, a refugee is lawfully present for the duration of any period of
time for which his or her admission is authorized, even if only for a few
hours.10 Second, and of greater contemporary relevance, a refugee is lawfully
present while his or her claim to refugee status is being verified, including the
time required for exhaustion of any appeals or reviews.11 Third, a refugee is
lawfully present if the reception state opts not to verify his or her refugee status,
including when formal status determination procedures are suspended in favor
of so-called temporary protection regimes.12
It is important briefly to repeat the logic behind this critical third point.
Simply put, a government cannot avoid its duty to grant refugees the benefit of
rights which accrue upon “lawful presence” by failing to establish a procedure
to verify their claims to be refugees.13 While a state may decide that it does not
wish, either generally or as an exceptional measure, to engage in formal status
assessment, that decision not to authenticate refugee status exists against the
backdrop of the government’s legal duty to grant Convention rights to all
persons in its territory who are in fact refugees, whether or not their status has

4 5
Refugee Convention, at Art. 14. Ibid. at Art. 16(2).
6
See Chapter 3.1.3 at note 186.
7
A. Metzger, “Article 14,” in A. Zimmermann ed., The 1951 Convention Relating to the
Status of Refugees and its 1967 Protocol: A Commentary 895 (2011) (Metzger, “Article 14”),
at 905.
8
B. Rentsch, Der gewöhnliche Aufenthalt im System des Europäischen Kollisionsrechts (2017)
(noting that while illegality does not preclude the establishment of habitual residence, it is
treated in most European states as a strong proxy against it).
9
See Chapter 3.1.3. 10 Ibid. at note 124 ff. 11 Ibid. at note 129 ff.
12
Ibid. at note 169 ff. 13 Ibid. at notes 173–174.

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 5.1 p rotection f rom e xpulsion 811

been assessed. The nature of those rights increases as the refugee’s attachment
to the receiving state increases over time.14
The fundamental expectation that a refugee will either be resettled or have
his or her status somehow normalized in the receiving state is particularly clear
from the text of Art. 31(2) of the Refugee Convention. This article authorizes
host states to impose constraints on a refugee’s freedom of movement only
“until their status in the country is regularized or they obtain admission into
another country.”15 But if no inquiry is ever undertaken into refugee status,
a refugee will never be able to escape what are expressly stated to be purely
provisional constraints.16 As such, the state’s legal obligation to implement its
treaty duties in good faith can be reconciled to its decision not to assess refugee
status only if the latter decision does not prejudice enjoyment by the refugee
claimant, at least on a provisional basis, of those rights that require no more
than lawful presence. As Grahl-Madsen has explained,
It has never been envisaged that there should be any group of under-
privileged refugees, subject to the whims of the authorities. Quite to the
contrary, so many of the provisions of the Refugee Convention . . . are based
on the appreciation of the very special situation of refugees . . . as aliens
incapable of gaining admission to any other country than the one in which
they find themselves . . . After a time, the humanitarian considerations
underlying the Refugee Convention and similar instruments must be held
to override other considerations of a more traditional legal nature.17

5.1 Protection from Expulsion

During the early part of the twentieth century, refugees allowed to enter an
asylum state nonetheless often found themselves vulnerable to expulsion on
grounds that they had committed even minor criminal offenses, or were
deemed “public charges” because they were unable to meet their own needs
due to indigence or ill health. As Grahl-Madsen describes the problem,
[I]t became the habit of certain States to expel refugees . . . and to push
those so expelled across the frontier to a neighbouring country. This
practice caused considerable hardship to the refugees, who were often
pushed back and forth between two or more countries and punished each
14
See generally Chapter 3.1. 15 See Chapter 4.2.4.
16
The logic of this system led the European Court of Human Rights to hold that a person
claiming to be a refugee has “the right to gain effective access to the procedure for
determining refugee status”: Amuur v. France, [1996] ECHR 25 (ECtHR, June 25, 1996),
at [43]. While not technically true, this conclusion would nonetheless be accurate in those
states which condition access to refugee rights on a formal process of refugee status
determination.
17
A. Grahl-Madsen, The Status of Refugees in International Law (vol. II, 1972) (Grahl-
Madsen, Status of Refugees II), at 442–443.

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 812 5 ri gh t s of r ef ugees l awfu lly present

time for illegal entry, but it also caused considerable inconvenience for the
countries into whose territory the expelled refugees were sent in the first
place. It [was] therefore quite natural that expulsion of refugees became
a matter of concern to the international community. The question has
been dealt with in all international instruments relating to the status of
refugees [since 1928].18
In essence, the concern is that unlike other aliens, refugees subject to expulsion
generally have no safe place to go.19 Yet this principled concern has continued
to run up against the determination of some states to rid themselves of refugees
whose continued presence is adjudged incompatible with their own interests.
For example, the United States authorizes the expulsion of aliens, including
refugees, on the basis of criminal convictions and outstanding removal orders,
including for dated and relatively minor infractions.20 In reliance on this
authority, the US government expelled scores of Cambodian refugees;21 the
same policy would have seen the return of Burmese and Lao Hmong refugees
but for the refusal of their countries of origin to issue the travel documents
necessary to facilitate such returns.22 The United Kingdom authorizes the
Secretary of State for the Home Department to expel an alien whose continued
presence is deemed not conducive to the public good. In reliance on this
authority, the British government attempted to force a Saudi asylum-seeker
whose activities threatened British commercial interests to accept residence on
the Caribbean island of Dominica.23 In 2018, Israel’s top court temporarily
halted a covert plan to remove some 40,000 Eritrean and Sudanese refugees to
18
A. Grahl-Madsen, Commentary on the Refugee Convention 1951 (1963, pub’d. 1997)
(Grahl-Madsen, Commentary), at 185–186.
19
The evolution of treaty-based protection against the expulsion of refugees is described in
U. Davy, “Article 32,” in A. Zimmermann ed., The 1951 Convention Relating to the Status of
Refugees and its 1967 Protocol: A Commentary 1277 (2011) (Davy, “Article 32”), at
1284–1285.
20
Particularly following the issuance of Executive Order 13768, “Enhancing public safety in
the interior of the United States,” Jan. 25, 2017, enforcement priorities have shifted to those
with traffic offenses, immigration-related offenses such as unlawful entry or reentry, and
nonviolent drug offenses such as possession of marijuana: see e.g. American Immigration
Council, “Fact Sheet: The End of Immigration Enforcement Priorities under the Trump
Administration,” Mar. 7, 2018.
21
K. Yam, “The US Just Quietly Deported the Largest Group of Cambodians Ever,”
Huffington Post, Apr. 6, 2018.
22
Burma, Laos, and a host of other “recalcitrant countries,” as they have been labeled under
US policy, face increasing pressure in the form of visa sanctions for their refusal to accept
persons – including those previously recognized as refugees – the US deems deportable due
to criminal convictions: Immigrant Law Center of Minnesota, “Alert to Immigrants from
Burma and Laos,” July 12, 2018.
23
“The British government . . . bowed to pressure from the Saudi regime, the United States
government and British arms companies when it ordered the deportation of Saudi Arabia’s
most prominent dissident to a tiny Caribbean island. Mohammed al-Mas’ari, leader of the
influential London-based Islamic opposition group, the Committee for the Defence of

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 5 .1 p r o te c ti o n f r o m e xp u l s i o n 813

Uganda and Rwanda, though not before thousands had already been pressured
to depart.24
The expulsion of refugees by states of the developed world is at times
resorted to as a provisional measure. For example, the United States “remain
in Mexico” policy expels refugee claimants to Mexico where they are required
to wait there until called for an asylum hearing in the US.25 Most commonly,
expulsion from wealthier states occurs under the rubric of the “first country
of arrival” regime – for example, the European Union’s Dublin Regulation26
or the Canada–US Agreement.27 Under these systems, refugee claimants are
routinely subject to expulsion from the state in which protection is claimed to
a partner state deemed responsible to assess status. Alternatively, expulsion
may be effected on a more ad hoc basis to a “safe third country” deemed able
and willing to afford protection.28 Australia has designed an amalgam of
these two approaches in order routinely to expel refugee claimants coming
under its maritime jurisdiction to a partner state which, in exchange for often
substantial development assistance and other payments, agrees to receive

Legitimate Rights – who last year applied for political asylum in Britain – was given 10 days
to appeal against his removal to Dominica . . . Mr. Mas’ari’s removal would be an enormous
relief to the Foreign Office, which has found his presence in Britain an embarrassment in
relations with Saudi Arabia, a key export market and political ally in the region”: S. Milne
and I. Black, “UK Bows to Pressure over Dissident,” Guardian Weekly, Jan. 14, 1996, at 1.
But the Chief Immigration Adjudicator overturned the deportation order, citing concerns
about his safety in Dominica and the inappropriateness of the government’s decision to
refuse to consider his refugee claim: S. Milne, “Mas’ari’s Victory Humiliates Howard,”
Guardian Weekly, Mar. 17, 1996, at 9.
24
A. Dahir, “Israel has Halted a Plan to Expel African Migrants – For Now,” Quartz Africa,
Mar. 16, 2018; T. Staff, “Outed by Netanyahu as ‘Third-Party Country,’ Rwanda Denies
Migrant Agreement,” Times of Israel, Apr. 3, 2018. “Asylum seekers sent to Uganda and
Rwanda with Israeli travel documents are not guaranteed legal status there. They receive
the Israeli travel documents, valid for three months, at Ben Gurion International Airport,
along with a confirmation of their visit. By all accounts, the Israeli travel documents are
taken from deported asylum seekers as soon as they arrive at Kigali, Rwanda, or Entebbe,
Uganda, by local representatives coordinated by the Israeli Immigration Authority. The
fees for two nights’ stay at a local hotel in Uganda are paid for by the State of Israel. After
that, the asylum seekers are asked to leave, with no identification documents and no
possibility of proving where they have come from. Asylum seekers who arrived in
Rwanda recount questionable practices by the representatives receiving them at the airport:
They were allegedly required to pay 100 to 150 dollars a night for the two nights at a local
hotel, a sum large enough to cover a month’s stay at such an establishment”: Hotline for
Refugees and Migrants, “Where there is No Free Will,” Apr. 2015, at 23; see also 24–30.
25
US Department of Homeland Security, “Policy Guidance for Implementation of the
Migrant Protection Protocols,” Jan. 25, 2019, www.dhs.gov/sites/default/files/publica
tions/19_0129_OPA_migrant-protection-protocols-policy-guidance.pdf, accessed Feb.
25, 2020. By the beginning of 2020, some 60,000 persons had been expelled from the US
under this policy: Human Rights Watch, “Q&A: Trump Administration’s ‘Remain in
Mexico’ Program,” Jan. 29, 2020.
26
See Chapter 4.1 at note 98. 27 Ibid. at note 100. 28
Ibid. at note 110.

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 814 5 ri gh t s of r ef ugees l awfu lly present

them.29 While each of these policies has already been considered in detail in
relation to the duty of non-refoulement,30 their common core operational mech-
anism is expulsion.
In the less developed world, refugee expulsion is less likely to be carried
out under formal legal procedures. For example, many refugees were
among the thousands of Rwandans “chased” from Uganda in an outbreak
of government-sanctioned anti-Rwandan hostility in 1982–1983.31
Arguing that “Uganda was for Ugandans,” local government officials insti-
gated public antipathy through accusations that Rwandans had displaced
locals economically, engaged in cattle thefts, participated in paramilitary
groups, and supported anti-government guerrillas.32 In the aftermath of
the first Gulf War, Kuwait ordered the expulsion of foreigners from
countries deemed sympathetic to Iraq, including Palestinian and Iraqi
refugees; it was reported that “even those who were cleared of charges
without trial or were acquitted by martial law courts [were] deported.”33 In
2014, Malaysia expelled several ethnic Sri Lankan Tamil refugees on the
grounds of alleged ties to the Liberation Tigers of Tamil Eelam (LTTE).
They were returned to Sri Lanka on the order of the Inspector General of
Police without any evidence having been presented to substantiate the
allegations.34 Zambian authorities expelled some thirty-six refugees to
the Democratic Republic of Congo following demonstrations over govern-
ment corruption at the country’s northwestern Meheba camp. In address-
ing the reasons for this decision, the Refugee Commissioner stated that the
deportations “were necessary to guarantee security at Meheba camp, and to
ensure that a protesting group of 200 people did not compromise essential
services to the 14,000 refugee population.”35 In 2018, Algeria expelled
more than 13,000 people over a fourteen-month period to the Sahara
Desert.36 Left without food or water and with at least a 15-kilometer trek
to the nearest town in Niger, untold numbers perished prior to the policy’s

29
Ibid. at note 114. 30 See Chapter 4.1.2 at note 295 ff.
31
E. Khiddu-Makubuya, International Academy of Comparative Law National Report for
Uganda (1994), at 14.
32
Ibid.
33
Middle East Watch, “A Victory Turned Sour: Human Rights in Kuwait Since Liberation”
(1991), at 43.
34
Human Rights Watch, “Sri Lanka: Refugees Returned from Malaysia at Grave Risk,”
May 27, 2014.
35
According to the same spokesperson, Zambia’s 1970 Refugee Control Act “gives the
minister the power to deal with refugees that are believed to [undermine] our quest to
host the larger population of refugees . . . particularly if what they are doing is threatening
our capacity to provide security for the larger community of refugees”: “Unruly Refugees
Sent Home,” IRIN News, Apr. 15, 2010.
36
“Walk or Die: Algeria Abandons 13,000 Refugees in the Sahara,” Al Jazeera, June 25, 2018.

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 5 .1 p r o te c ti o n f r o m e xp u l s i o n 815

suspension.37 Jordan engaged in a campaign of collectively and summarily

deporting Syrian refugees, generally following detention and questioning
by the Mukhabarat security forces.38 Although aid workers believe such
actions were motivated by ISIS attacks on security forces, Jordanian
authorities “have neither provided evidence that any deportees were
involved in any of these attacks nor publicly alleged that they were
involved.”39 Officials also did not give an opportunity for those removed
to contest their removal or seek legal help.40
Particularly in Africa, the expulsion of refugees is often linked to fear that their
presence will embroil the host state in armed conflict. For example, the threat of
military attacks from apartheid-era South Africa led some neighboring countries,
including Botswana, Mozambique, and Swaziland, to expel South African refu-
gees. As Mtango observed, “because of their inability to defend themselves [from
armed attack by South Africa], they [were] inclined instead to return refugees to
South Africa or force them to seek resettlement in other countries.”41 In the early
months of 2001, Zimbabwean police ordered the expulsion of some thirty Central
African refugees suspected of being rebels from the Democratic Republic of Congo
sent to assassinate senior Zimbabwean officials, including President Mugabe.42 In
2015, Cameroonian security forces began forcibly expelling Nigerian refugees
living along its border on the grounds that they could have ties to Boko Haram,
which was responsible for recent suicide bombings and other deadly attacks in the
region.43 According to one government spokesperson, the expulsions were “for the

37
“Migrants filmed videos of themselves fanning out across the open desert, stumbling
through heat that reaches above 50 degrees Celsius in the summer as armed Algerian
gendarmes ensured they did not turn back. Of the more than two dozen migrants who AP
journalists interviewed in Niger, nearly all reported seeing deaths during the forced march,
which sometimes lasted days”: “Algeria Halts Refugee Expulsions to Sahara after Outrage,”
Al Jazeera, July 13, 2018.
38
B. Finch, “The Case that Exposes Jordan’s Deportation Double Standards,” IRIN News,
May 25, 2015.
39
Human Rights Watch, “I have No Idea Why They Sent Us Back: Jordanian Deportations
and Expulsions of Syrian Refugees,” Oct. 2, 2017.
40
According to deportees interviewed by Human Rights Watch, those subject to expulsions
“were not taken before a judge or any other civil authority prior to being removed, but rather
were deported within a day or two of arrest and only after having been interrogated by police
and security officials . . . Many of them said that they were completely ignorant of the reasons
why they were forcibly returned. ‘Rouqiya,’ a 30-year-old mother of three, ages 6, 7, and 6
months, who struggles with serious health issues, said Jordan deported her in March 2017
while US authorities were still reviewing her eligibility for resettlement. She said that her family
was neither informed why they were being deported nor even told that they were being
deported”: ibid.
41
E. Mtango, “Military and Armed Attacks on Refugee Camps,” in G. Loescher and
L. Monahan eds., Refugees and International Relations 92 (1990), at 95. See also J. Molefi,
“Few Safe Havens for Apartheid’s Exiles,” (1984) 29(1) Africa Report 14, at 15.
42
Independent Online (Harare), Feb. 1, 2001.
43
S. Tetchiada, “Nigerians Who Fled Boko Haram Forced Home,” IRIN News, Aug. 21, 2015.

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 816 5 r ights of r efugees l awful l y p resent

good of the country.”44 Kenya adopted a similar approach with respect to Somali
refugees following attacks on its forces by Somali-linked militants.45
Refugee Convention, Art. 32 Expulsion
1. The Contracting States shall not expel a refugee lawfully in
their territory save on grounds of national security or public
order.
2. The expulsion of such a refugee shall be only in pursuance
of a decision reached in accordance with due process of law.
Except where compelling reasons of national security other-
wise require, the refugee shall be allowed to submit evidence
to clear himself, and to appeal to and be represented for the
purpose before competent authority or a person or persons
specially designated by the competent authority.
3. The Contracting States shall allow such a refugee a reasonable
period within which to seek legal admission into another coun-
try. The Contracting States reserve the right to apply during that
period such internal measures as they may deem necessary.
Civil and Political Covenant, Art. 13
An alien lawfully in the territory of a State Party to the present
Covenant may be expelled therefrom only in pursuance of
a decision reached in accordance with law and shall, except
where compelling reasons of national security otherwise require,
be allowed to submit the reasons against his expulsion and to have
his case reviewed by, and be represented for the purpose before,
the competent authority or a person or persons especially desig-
nated by the competent authority.
When a refugee first arrives in search of protection, he or she enjoys only
a limited right to be protected from expulsion.46 At this stage, the main

44
“We are protecting ourselves . . . We are preventing penetration into our territory of
anyone who does not inspire confidence in us. If, within our territory, we realize that
there are accomplices, disguised as Boko Haram, our responsibility is to send them back to
their own country”: ibid.
45
H. Malalo, “Kenya Deports Somalis, Arrests Hundreds in Crackdown after Attacks,” Reuters,
Apr. 9, 2014; see also Human Rights Watch, “Kenya: Mass Deportation of Somalis: 359
Deported without Access to Lawyers, Court, UN Refugee Agency,” May 23, 2014.
46
Davy notes that “[i]nternational law usually just adopts the English and French term ‘expul-
sion,’ leaving it to the interpreter to infer its main elements from context. International refugee
law is no exception”: Davy, “Article 32,” at 1307. She posits “three features” of expulsion: an
administrative or judicial decision; not including the enforcement of the decision; and not
including simplified removal procedures: ibid. at 1307–1308. This seems quite a narrow
definition, contrasting for example with the view of the UN Human Rights Committee that
expulsion includes “all procedures aimed at the obligatory departure of an alien, whether
described in national law as expulsion or otherwise”: UN Human Rights Committee, “General

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 5.1 pr o t e c t i o n f r o m e x p u l s i o n 817

safeguard is the duty of non-refoulement set by Art. 33. As previously analyzed

in depth,47 this means that there must be no real chance that the expulsion will
lead, directly or indirectly, to the refugee being returned to the risk of being
persecuted – a clear problem for the American “remain in Mexico policy”48
since “approximately 1 out of every 3 asylum seekers returned to Mexico . . .
will likely be threatened with violence while waiting in Mexico before they
make it to their immigration court dates.”49 Beyond this inquiry, expulsion
prior to lawful presence is constrained only by the general duty under inter-
national law to avoid stripping the refugee of his or her acquired rights50 and
by the obligation not to aid or assist the destination country to breach its
international legal duties.51 So long as these requirements are met, a state party
may expel a refugee claimant from its territory during the very earliest phases
of refugee reception.52 This is because the more general duty to avoid expulsion
only arises once the refugee claimant is “lawfully present” in a state party.53 As
explained by the UK Supreme Court,
Every refugee has the protection of article 33. The protection of article 32 is
more generous. Its effect is that, once a refugee has been admitted or his
presence has been legalised and so long as entitlement to refugee status
continues, he is entitled to stay indefinitely in the receiving state. He can
only forfeit that right by becoming a risk to national security or by
disturbing the public order. But he requires to have been afforded
a certain degree of attachment to the receiving state before this privilege
becomes available.54

Comment No. 15: The Position of Aliens under the Covenant” (1986), UN Doc. HRI/GEN/1/
Rev.7, May 12, 2004, at [9]. The International Law Commission adopts a similar view, defining
expulsion as simply “a formal act or conduct attributable to a State, by which an alien is
compelled to leave the territory of that State”: International Law Commission, “Draft Articles
on the Expulsion of Aliens,” [2014] 2(2) Yearbook of the International Law Commission, at Art.
2(a). In line with these views, Weis encourages a consequence-driven understanding, opining
that “[e]xpulsion means any measure which obliges the refugee to leave the territory of
a Contracting State, for instance, a residence ban”: P. Weis, The Refugee Convention, 1951:
The Travaux Préparatoires Analysed with a Commentary by Dr. Paul Weis (posthumously
pub’d., 1995) (Weis, Travaux), at 322.
47
See Chapter 4.1. 48 See text at note 25.
49
UC San Diego News Center, “‘Remain in Mexico’ Asylum Seekers Face Numerous Risks,”
Oct. 29, 2019, ucsdnews.ucsd.edu/pressrelease/remain-in-mexico-asylum-seekers-face-
numerous-risks, accessed Feb. 25, 2020.
50
See text at note 71. 51 See text at note 104. 52 See Chapter 4.2.3.
53
See text at note 114.
54
R (ST, Eritrea) v. Secretary of State for the Home Department, [2012] UKSC 12 (UK SC,
Mar. 21, 2012), at [1]. The views of the Supreme Court on the precise meaning of lawful
presence are, however, more contentious: see Chapter 3.1.3 at note 144 ff.

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 818 5 righ t s of r e f ug ee s l aw fully p r es en t

5.1.1 Constraints before Lawful Presence

In principle, then, an expulsion decision taken before lawful presence is
established55 – for example, as part of an admissibility inquiry under first
country of arrival regimes such as the EU’s Dublin Regulation56 and the
Canada–US Agreement,57 or by reliance on a safe third country arrangement
such as those Australia has negotiated with Nauru and other neighboring
states58 – is lawful so long as it respects the duty of non-refoulement and does
not strip the refugee claimant of such international rights as he or she may
already have provisionally acquired or aid or assist the destination country to
breach such rights as remain inchoate.59
The duties of non-refoulement and non-expulsion were never conceived as
mutually exclusive;60 indeed, they were originally proposed as two aspects of
a common obligation.61 Thus, in describing the protection that refugees lawfully

55
The drafters recognized that refugees who travel without pre-authorization to a state party, but
who are admitted to a process intended to assess their suitability for admission to that state,
should “be considered, for purposes of the future convention, to have been regularly admitted”:
Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.15, Jan. 27, 1950, at 20.
Referring to this drafting history, UNHCR helpfully observes that “[w]hilst the term ‘regularly
admitted’ did not eventually find its way into the 1951 Convention it informed the concept of
‘lawfully in’”: UNHCR, Handbook on Protection of Stateless Persons (2014), at 48, n. 81. Thus,
“[g]iven the declaratory nature of refugee status, Article 32 is . . . applicable to asylum-seekers,
including those who have entered the country illegally but have since entered the asylum
procedures and may therefore be considered as ‘authorized’ to be present in the territory of
the country and lawfully therein”: UNHCR, “Response to the Constitutional Court of Ecuador
query regarding International Treaty No. 0030-13-TI,” Apr. 17, 2015, at 8; see also UNHCR,
“Observations on the proposed amendments to the Danish Aliens legislation,” Oct. 31, 2016, at
3. See generally Chapter 3.1.3.
56
See Chapter 4.1 at notes 98–99. 57 Ibid. at note 100. 58
Ibid. at note 83.
59
See also the discussion of the consonance of such regimes with the duty of non-refoulement
at Chapter 4.1.
60
This is not to say, however, that the two duties are the same. As the International Law
Commission has correctly insisted, the non-admission of an alien to a state is one of three
exclusions from the general notion of expulsion as “a formal act or conduct attributable to
a State, by which an alien is compelled to leave the territory of that State”: International Law
Commission, “Draft Articles on the Expulsion of Aliens,” [2014] 2(2) Yearbook of the
International Law Commission, at Art. 2(a). This point was acknowledged in ND and NT
v. Spain, Dec. Nos. 8675/15 and 8697/15 (ECtHR, Feb. 13, 2020), at [174].
61
See United Nations, “Memorandum by the Secretary-General to the Ad Hoc Committee on
Statelessness and Related Problems,” UN Doc. E/AC.32/2, Jan. 3, 1950 (Secretary-General,
“Memorandum”), at 45. This approach was modeled on Art. 3 of the 1933 Convention, under
which each state party agreed to protect refugees against efforts “to remove or keep [them]
from its territory by application of police measures, such as expulsion or non-admittance at the
frontier (refoulement)”: Convention relating to the International Status of Refugees, 159 LNTS
3663, done Oct. 28, 1933, entered into force June 13, 1935 (1933 Refugee Convention). The
decision to separate the duties of non-refoulement and non-expulsion into separate articles was
reached by the Ad Hoc Committee without clear explanation. It may, however, have followed
from the decision to broaden the class of persons entitled to protection against refoulement to

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 5 .1 pr ot ec ti on f rom e x pul si on 819

present would receive by virtue of Art. 32’s protection against expulsion, the
American representative referred to it as a “supplement” to the duty of non-
refoulement.62 Israel similarly insisted that the foundation for discussion of the
duty of non-expulsion was that “[t]he Committee had already settled the humani-
tarian question of sending any refugee whatever back to a territory where his life
or liberty might be in danger.”63 The official comments of states on the Ad Hoc
Committee’s draft are equally clear. Both the Chilean and British governments
argued for a generous interpretation of the scope of permissible expulsion pre-
cisely because the duty of non-refoulement had already limited their removal
options.64 And perhaps most emphatically, the Canadian representative to the
Conference of Plenipotentiaries (and former chairman of the Ad Hoc Committee)
affirmed that “the exercise of [expulsion] powers would be tempered with com-
passion, and never be at variance with the spirit of the Convention or with the
terms of article [33], which related to the prohibition of expulsion to territories
where the life or freedom of a refugee was threatened.”65 Because the duty of non-
refoulement is not displaced once a refugee is lawfully present in a state party, even
a state which has entered a reservation to Art. 32 cannot expel a refugee without
consideration of the consequences of that act. Thus, while Uganda’s purported
reservation of its “unfettered right to expel any refugee in [its] territory” means

encompass all refugees, including those not yet admitted to an asylum country (in contrast to
the more limited beneficiary class for protection against expulsion): see “Report of the Ad Hoc
Committee on Statelessness and Related Problems,” UN Doc. E/1618, Feb. 17, 1950 (Ad Hoc
Committee, “First Session Report”), at Annex II. The British representative, for example, had
made clear that “the notion of refoulement could apply to (a) refugees seeking admission, (b)
refugees illegally present in a country, and (c) refugees admitted temporarily or conditionally”:
Statement of Sir Leslie Brass of the United Kingdom, Doc. E/AC.32/SR.21, Feb. 2, 1950, at 5.
62
Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.20, Feb. 1, 1950, at 12.
“Whatever the case might be, whether or not the refugee was in a regular position, he must
not be turned back to a country where his life or freedom could be threatened. No
consideration of public order should be allowed to overrule that guarantee, for if the
State concerned wished to get rid of the refugee at all costs, it could send him to another
country or place him in an internment camp”: ibid.
63
Statement of Mr. Robinson of Israel, ibid. at 13. See also Statement of Mr. Guerreiro of
Brazil, UN Doc. E/AC.32/SR.21, Feb. 2, 1950, at 7, who felt that amendment of Art. 32 to
establish protections against expulsion was not necessary because the duty of non-
refoulement “covered the fundamental aspect of the problem and its provisions were
applicable to all refugees.”
64
“It should also be taken into consideration that Article [33] limits the countries to which the
expelled person may be sent, since it provides, and rightly so, that he may not be expelled to
countries where he might be persecuted for political, social, or religious reasons”: United
Nations, “Compilation of the Comments of Governments and Specialized Agencies on the
Report of the Ad Hoc Committee on Statelessness and Related Problems,” UN Doc. E/
AC.32/L.40, Aug. 10, 1950 (United Nations, “Compilation of Comments”), at 55 (Chile).
See also comments of the British government, which made clear that it sought greater
operational flexibility in relation to expulsion only “[i]n any case where a refugee is
returnable to a country where he has no reason to fear persecution”: ibid. at 57.
65
Statement of Mr. Chance of Canada, UN Doc. A/CONF.2/SR.15, July 11, 1951, at 8.

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 820 5 ri g ht s o f re f u g e e s l a w f u l l y p r e s e n t

that it did not violate Art. 32 when it “chased” Rwandans back to their country of
origin, its actions were nonetheless in breach of Art. 33.66
While the duty of non-refoulement is the core constraint on a state’s right to
expel a refugee before lawful presence is established, it is not the only limitation.67
Just as a refugee claimant is entitled to invoke Art. 33 because it is a protection the
benefit of which has already accrued to the refugee claimant under the jurisdiction
(and normally also within the territory) of the state party concerned,68 so too the
exercise of jurisdiction or fact of simple territorial presence makes the refugee
claimant also the provisional holder of a number of other Convention rights.69
Specifically, even before lawful presence is established the refugee claimant also
benefits from Arts. 3 (non-discrimination), 4 (religious freedom), 12 (respect for
personal status), 13 (preservation of property rights), 16(1) (access to the courts),
20 (access to rationing systems), 22 (primary education), 25 (access to adminis-
trative assistance), 27 (identity papers), 29 (fiscal equity), 31 (non-penalization for
illegal entry and freedom from arbitrary detention), and 34 (consideration for
naturalization).70 These basic refugee rights, just like the duty of non-refoulement,
are owed until and unless a final decision is made that refugee status is not
warranted on the facts of the case.
As such, there is no legal basis to distinguish the right of a refugee to claim the
benefit of Art. 33 from his or her right to benefit from the protection of Arts. 3, 4, 12,
13, 16(1), 20, 22, 25, 27, 29, 31, and 34. As acquired rights, the state that wishes to

66
This is in fact acknowledged in the text of Uganda’s reservation, which provides that “[w]ithout
recourse to legal process the Government of the Republic of Uganda shall, in the public
interest, have the unfettered right to expel any refugee in her territory and may at any time
apply such internal measures as the Government may deem necessary in the circumstances; so
however that, any action taken by the Government of the Republic of Uganda in this regard
shall not operate to the prejudice of the provisions of article 33 of this Convention”: https://
treaties.un.org, accessed Dec. 21, 2020. Blay and Tsamenyi argue further that summary
expulsion by Uganda violated Art. 16(1) of the Convention requiring that refugees have access
to the courts of law of all state parties: S. Blay and M. Tsamenyi, “Reservations and Declarations
under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees,” (1990)
2(4) International Journal of Refugee Law 527 (Blay and Tsamenyi, “Reservations”), at 544–545.
67
As such, the plea to interpret the beneficiary class for Art. 32 rights narrowly in order to
facilitate “compulsory secondary movement” is unlikely to be productive. But see Y. Livnat,
“Compulsory Secondary Movement and Article 32 of the Refugee Convention,” reflaw.org,
Aug. 28, 2019.
68
See Chapter 4.1.1.
69
As earlier analyzed (see Chapter 3.1), refugee status determination does not make a person
a refugee. Rather, positive assessment by a state party simply confirms the status already
held by a person who meets the requirements of the refugee definition. Because the text of
the Convention expressly guarantees some rights even before refugee status assessment,
persons who have claimed refugee status, including those being considered for removal to
a third state that will consider their protection needs, are provisional rights-holders. While
not yet lawfully present in any country, they are both under a state party’s jurisdiction and
physically present within its territory.
70
See generally Chapter 4.

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 5.1 pr o t e c t i o n f r o m e x p u l s i o n 821

expel the refugee to another country has a duty of “anxious scrutiny”71 to avoid
rights-stripping, ensuring that each of these entitlements is honored upon arrival in
the destination country – not just that there is protection against the risk of
refoulement there.72 Thus in response to the Australian government’s claim that
it had no “protection obligations” to refugees slated for removal to a country in
which they would not be exposed to a risk of refoulement, the High Court of
Australia demurred:
Counsel for the Minister submits that the Minister has no “protection
obligation” in the nature of providing asylum to the appellants because the
implication of that positive obligation does not flow from Art. 33(1) . . .
[However] . . . a perusal of the Convention shows that, Art. 33 apart, there is
a range of requirements imposed upon Contracting States with respect to
refugees some of which can fairly be characterised as “protection
obligations.”73

71
R (Yogathas) v. Secretary of State for the Home Department, [2003] 1 AC 920 (UK HL, Oct.
17, 2002), at [58], per Lord Hope.
72
In the view of Judge Weeramantry of the International Court of Justice, there is support for
a broad theory mandating respect for acquired rights. “Another possible line of enquiry . . .
is the analogy between a treaty vesting human rights, and a dispositive treaty vesting
property rights. From the time of Vattel, such a dispositive treaty, as for example a treaty
recognizing a servitude, has been looked upon as vesting rights irrevocably in the party to
whom they were granted; and those rights, once vested, could not be taken away. Perhaps in
comparable fashion, human rights, once granted, become vested in the persons enjoying
them in a manner comparable, in their irrevocable character, to vested rights in
a dispositive treaty”: Application of the Convention on the Prevention and Punishment of
the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections,
[1996] ICJ Rep 595 (ICJ, July 11, 1996), at 652 (Judge Weeramantry). The duty to respect
acquired rights has been most thoroughly adumbrated in the context of a change of
sovereignty: see R. Mullerson, “The Continuity and Succession of States, by Reference to
the Former USSR and Yugoslavia,” (1993) 42 International and Comparative Law
Quarterly 473, at 490; Human Rights Committee Decision on State Succession to the
Obligations of the Former Yugoslavia under the International Covenant on Civil and
Political Rights, (1993) 15 EHRR 233; UN Commission on Human Rights, “Succession of
States in respect of International Human Rights Treaties,” UN Doc. E/CN.4/1995/80 (Nov.
28, 1994), at 3.
73
NAGV and NAGW of 2002 v. Minister for Immigration and Multicultural and
Indigenous Affairs, [2005] HCA 6 (Aus. HC, Mar. 2, 2005), at [27]–[31], per
Gleeson C.J., McHugh, Gummow, Hayne, Callinan, and Heydon JJ. Unfortunately,
the High Court proceeds to identify three “examples” of “protection obligations” in
the treaty, thereby giving unwarranted credence to the view that some Convention
duties are not to be understood as “protection obligations”: ibid. at [31]. But as the
Preamble to the Convention itself makes clear, the Convention as a whole is a means
“to revise and consolidate previous international agreements relating to the status of
refugees and to extend the scope of and protection accorded by such instruments”:
Refugee Convention, Preamble, at [3]. There is thus no division in the Convention
between “protection” and “other” obligations.

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This recognition that international refugee law obligations are in no sense

limited to ensuring respect for the duty of non-refoulement74 was elaborated by
the same court in the context of a challenge to legislation authorizing the
blanket transfer of refugee claimants to a country deemed safe.75 Rejecting the
Australian government’s assertion that refugees could be forcibly transferred
to Malaysia by reference only to the fact that they would be immune from
refoulement there, the court observed that if that construction were adopted,
the transferred refugee
may have none of the other rights which Australia is bound to accord to
persons found to be refugees . . . Thus when [the Act] speaks of a country
that “provides protection . . . ” it refers to provision of protections of all the
kinds which parties to the Refugees Convention and the Refugees Protocol
are bound to provide to such persons. Those protections include, but are
not limited to, protection against refoulement.76
While declining to specify the precise content of requisite protection, the High
Court noted in particular that attention must be paid to the existence in the
destination country of legally binding protection against discrimination, and
of affirmative protection of religious freedom, access to the courts, entitlement
to engage in wage-earning employment, access to primary education, and
freedom of internal movement.77
The Australian High Court’s clear insistence that expulsion be conditioned on
more than just compliance with the duty of non-refoulement is mirrored in
European human rights jurisprudence. Rejecting a narrow78 approach, a Grand

74
“[T]he protection obligations imposed by the Convention upon Contracting States concern
the status and civil rights to be afforded to refugees who are within Contracting States”:
Minister for Immigration and Multicultural Affairs v. Khawar, [2002] HCA 14 (Aus. HC,
Apr. 11, 2002), at [42], per McHugh and Gummow JJ. “[N]on-refoulement constitutes part
only of the benefits attaching to refugee status and . . . [is] the part presently least important
to these applicants who cannot be removed anyway. Their concern rather is not to remain
here in limbo – without benefits, without security, unable to travel, unable to bring in their
families – but instead to enjoy the specific advantages to which refugees are entitled under
both international and domestic law. They seek, in essence, the protection of this country
and a new home here”: Adan v. Secretary of State for the Home Department, [1997] 1 WLR
1107 (Eng. CA, Feb. 13, 1997), at 1116, per Simon Brown L.J. See also K. Hailbronner, “The
Concept of ‘Safe Country’ and Expeditious Asylum Procedures: A Western European
Perspective,” (1993) 5 International Journal of Refugee Law 31, at 59: “A casual connection
with a country that respects the principle of refoulement and does not persecute the asylum
seeker is not usually considered as adequate protection.”
75
Migration Act 1958 (Cth), s. 198(A), introduced by the 2001 Excision Consequential
Provisions Act, July 25, 2011.
76
Plaintiff M70/2011 v. Minister for Immigration and Citizenship, [2011] HCA 32 (Aus. HC,
Aug. 31, 2011), at [119], per Gummow, Hayne, Crennan, and Bell JJ.
77
Ibid., at [117], per Gummow, Hayne, Crennan, and Bell JJ.
78
For example, responding to evidence that a refugee claimant returned to Italy would face
“destitution and homelessness” an English court observed that “there is no general right to

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 5.1 pr o t e c t i o n f r o m ex p u l s i o n 823

Chamber of the European Court of Human Rights ruled in 2011 that Belgium was
prohibited from returning an Afghan refugee claimant to Greece – his “first
country of arrival” in Europe. The Court determined inter alia that the state of
extreme poverty to which refugees were subjected in Greece amounted to inhuman
or degrading treatment, thus imposing a bar to transfers to that country.79 Later
that same year, the Court of Justice of the European Union reached much the same
conclusion, finding that evidence of risk in a partner state amounting to torture or
inhuman or degrading treatment or punishment would preclude removal to
a partner state80 – a standard more recently said might be met even where
appropriate medical treatment for acute illness is not available in the destination
state.81 These judgments signal that the duty to scrutinize the realities of protection
in a partner state is not to be narrowly conceived.
Indeed, civil law courts in Europe have explicitly acknowledged that the
Refugee Convention itself imposes a duty to consider more than simply the risk
of refoulement. The French Conseil d’État, for example, invoked the Refugee
Convention and Protocol to prevent the return of a refugee family to Greece,
their country of first arrival. Noting specifically that evidence of the conditions
to which the family was subjected upon arrival in Greece failed to meet “the
guarantees required by asylum law,” and that return to Greece would therefore

accommodation or a minimum standard of living that can be drawn from the [European
Convention for the Protection of Human Rights] or the Directives, or from elsewhere in the
European or our domestic human rights, social or other legislation. The setting of such
a minimum standard – no matter how low – is a matter for social legislation, not the courts.
Therefore, given that the claimant’s case is based upon the premise that there is a risk that, if
returned to Italy, ‘he will be destitute and homeless on the street,’ a cautious approach is
required by this court to ensure that it does not inappropriately encroach into areas
reserved to the political decision of the executive government”: R (EW) v. Secretary of
State for the Home Department, [2009] EWHC 2957 (Eng. HC, Nov. 18, 2009), at [23], per
Hickinbottom J.
79
MSS v. Belgium and Greece, (2011) 53 EHRR 28 (ECtHR, Jan. 21, 2011).
80
NS v. Secretary of State for the Home Department, Dec. Nos. C-411/10 and C-493/10 (CJEU,
Dec. 21, 2011). While the court determined that there could be a presumption that partner
states would honor their legal obligations to refugees sent to them (at [84]), it nonetheless found
that awareness of systemic deficiencies that amount to substantial grounds for believing that
conditions in the partner state amount to violation of Art. 4 of the European Charter of
Fundamental Rights (which prohibits torture or inhuman or degrading treatment or punish-
ment) rebutted that presumption: at [94]. Regrettably, the court did not take the opportunity to
determine whether a broader range of legal constraints also governs removal to a partner state.
In particular, the right to asylum guaranteed by Art. 18 of the European Charter providing that
“[t]he right to asylum shall be guaranteed with due respect for the rules of the Geneva
Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of
refugees” provides a clear basis for conditioning removal on compliance with the duties
assumed under Arts. 2–34 of the Refugee Convention, not just on risk of torture or inhuman
or degrading treatment or punishment: Charter of Fundamental Rights of the European Union,
OJ 2000 C326/02 (Dec. 7, 2000), at Art. 18.
81
CK v. Slovenia, Dec. No. C-578/16PPU (CJEU, Feb. 16, 2017), at [72].

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 824 5 r i g ht s of re f u g e e s l a w f u l l y p r e s e n t

pose the risk of “a grave and manifestly unlawful deprivation of the fundamen-
tal liberty that comprises the right to asylum,” the court refused to sanction the
family’s removal.82 A German court similarly overturned a removal order
made against an Iranian refugee who had arrived in Germany via Greece.
Observing that returns under the Dublin Regulation are contingent on respect
by the destination country for the “right to asylum binding on all member
states,” the court required the government to exercise its discretion to withhold
removal in view of the failure of Greece to meet regional standards for
processing and reception of refugee claimants,83 which standards are expressly
to be interpreted in line with international refugee law requirements.84
This robust approach to scrutiny of even pre-admissibility expulsion is in
keeping with the approach recommended by the UNHCR’s Executive
Committee. In its Conclusion No. 85,85 the Executive Committee noted that
[a]s regards the return to a third country of an asylum-seeker whose claim
has yet to be determined from the territory of the country where the claim
has been submitted, including pursuant to bilateral or multilateral
readmission agreements, it should be established that the third country
will treat the asylum-seeker (asylum-seekers) in accordance with accepted
international standards, will ensure effective protection against

82
Dec. 339478 (Fr. CE [French Council of State], May 20, 2010) (unofficial translation).
83
Transfer of Asylum Applicants to Greece, [2009] BeckRS 36287 (Ger. AC, Frankfurt-am-
Main, July 8, 2009) (unofficial translation). The English High Court’s criticism of this
decision – that it “seems to reason from ‘a right to asylum binding [on] all Member
States . . . ’ [that] cannot constitute a basis for reasoning in this type of case since the
Dublin Regulation is expressly drafted on the basis of that right” (R (Saeedi) v. Secretary of
State for the Home Department, [2010] EWHC 705 (Eng. HC, Mar. 31, 2010), at [154], per
Cranston J.) – is not sound. The Dublin Regulation is subordinate to international refugee
law obligations, but was not intended to implement the whole of those obligations. To the
contrary, the Dublin Regulation is directed only to the process by which an allocation of
refugee protection responsibilities is to occur, and does not address at all the core questions
of qualification for status or the rights of persons who are refugees. The judgment of the
German court appropriately recognizes that the Dublin Regulation cannot operate in a way
that breaches these binding norms of international refugee law.
84
“The Union shall develop a common policy on asylum, subsidiary protection and tempor-
ary protection with a view to offering appropriate status to any third-country national
requiring international protection and ensuring compliance with the principle of non-
refoulement. This policy must be in accordance with the Geneva Convention of 28 July 1951
and the Protocol of 31 January 1967 relating to the status of refugees, and other relevant
treaties”: Treaty on the Functioning of the European Union, adopted Feb. 7, 1992, entered
into force Nov. 1, 1993, OJ 2010 C83/47, at Art. 78(1) (emphasis added). The Court of
Justice of the European Union has affirmed that the Refugee Convention is the cornerstone
of regional refugee protection norms, and that the regional regime must be implemented in
line with requirements of the Refugee Convention: see Chapter 1.5.3 at note 290.
85
UNHCR Executive Committee Conclusion No. 85 (XLIX), “Conclusion on International
Protection,” UN Doc. A/53/12/Add.1 (Oct. 9, 1998). The legal status of Executive
Committee Conclusions is discussed at Chapter 1.5.2.

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 5.1 pr o t e c t i o n f r o m ex p u l s i o n 825

refoulement, and will provide the asylum-seeker (asylum-seekers) with the

possibility to seek and enjoy asylum.86
This view aligns with the Executive Committee’s traditional insistence on the
importance of states having a duty to ensure “that persons who are in need of
international protection actually receive it.”87 Perhaps most important,
Conclusion No. 85 makes absolutely clear that the scrutiny of circumstances in
the destination country may not be restricted to whether there is a risk of
refoulement there; it must also evaluate whether that country “will provide the
asylum-seeker (asylum-seekers) with the possibility to seek and enjoy asylum.”88
Access to “asylum,” defined to include “the obligation to treat asylum-seekers
and refugees in accordance with applicable human rights and refugee law
standards as set out in relevant international instruments,”89 is thus as relevant
as the basic question of whether there is a risk of removal to persecution.
Both Executive Committee guidance and the emerging national and regional
jurisprudence thus affirm the balance struck in the Convention between permis-
sible expulsion prior to lawful presence and the treaty’s commitment to provi-
sional rights acquisition prior to formal status assessment. Nothing in the
Refugee Convention authorizes rights deprivation in pursuit of a refugee respon-
sibility-sharing or any expulsion.90 Indeed, the notion that states may expel
refugees at will, thereby stripping them of rights already acquired, is manifestly
incompatible with the duty to apply the Refugee Convention in a way that
ensures its effectiveness.91 While the Convention does not impose obligations
on states to deliver rights to refugees in the abstract, state parties have assumed
obligations to refugees with whom they have a connection, in some cases based

86
Ibid. at [(aa)].
87
UNHCR Executive Committee Conclusion No. 74 (LXV), “General Conclusion on
International Protection,” UN Doc. A/49/12/Add.1, Oct. 7, 1994, at [(p)].
88
UNHCR Executive Committee Conclusion No. 85 (XLIX), “Conclusion on International
Protection,” UN Doc. A/53/12/Add.1 (Oct. 9, 1998), at [(aa)] (emphasis added).
89
UNHCR Executive Committee Conclusion No. 82 (XLVIII), “Safeguarding Asylum,” UN
Doc. A/52/12/Add.1 (Oct. 17, 1997), at [(d)(vi)].
90
“Because there is nothing in the Convention, either expressly or by implication, to
remove . . . protection obligations with respect to the appellants . . . in circumstances
where, although the Convention is engaged in the State to which the applicant has had
recourse, the applicant might have obtained protection elsewhere, such obligations con-
tinue to exist”: NAGV and NAGW of 2002 v. Minister for Immigration and Multicultural
and Indigenous Affairs, [2005] HCA 6 (Aus. HC, Mar. 2, 2005), at [90], per Kirby J.
91
The duty to ensure a treaty’s effectiveness derives from the more general obligation of good faith
treaty interpretation: M. Bos, “Theory and Practice of Treaty Interpretation,” (1980) 27
Netherlands International Law Review 135, at 150. As observed by Judge Lauterpacht, “[t]he
preponderant practice of the Court itself has . . . been based on principles of interpretation
which render the treaty effective rather than ineffective. These principles are not easily
reconcilable with restrictive interpretation conceived as the governing rule of construction”:
H. Lauterpacht, The Development of International Law by the International Court (1958), at 305.
See generally C. Tomuschat, Human Rights: Between Idealism and Realism (2003), at 104.

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 826 5 r i g ht s o f re f u g e e s l a w f u l l y p r e s e n t

simply on their exercise of jurisdiction. If it were possible to circumvent the

considerable range of obligations imposed on state parties by the simple expedi-
ent of transferring a refugee to another state, this would defeat the very raison
d’être of the Convention. As cogently observed by the Full Federal Court of
Australia,
[t]he Convention does not provide that the incurring of obligations to
a refugee to whom the Convention applies is at the option or discretion of
a Contracting State and nor does it provide that a Contracting State will
not incur obligations to a refugee under the Convention if the refugee has
had, or has, the opportunity to seek protection from another country or
Contracting State.92
It is important to emphasize, however, that the duty to ensure respect for
acquired rights is not tantamount to conditioning removal on evidence that the
refugee would enjoy the same overall quality of life in the destination country
as in the sending state. This distinction has not always been clearly understood
by courts.93 For example, in the decision of Januzi94 the House of Lords
mistakenly assumed that assessment of respect for refugee rights in
a destination state entails a comparison of the quality of life in the sending
and destination countries.95 This is not so: the measure of respect for each right

92
WAGH v. Minister for Immigration and Multicultural and Indigenous Affairs, (2003) 131
FCR 269 (Aus. FFC, Aug. 27, 2003), at [25].
93
As early as 2002, the House of Lords expressed the view that “the Convention is directed to
a very important but very simple and very practical end, preventing the return of applicants
to places where they will or may suffer persecution. Legal niceties and refinements should
not be allowed to obstruct that purpose. It can never, save in extreme circumstances, be
appropriate to compare an applicant’s living conditions in different countries if, in each of
them, he will be safe from persecution or the risk of it”: R (Yogathas) v. Secretary of State for
the Home Department, [2003] 1 AC 920 (UK HL, Oct. 17, 2002), at [9], per Lord Bingham.
The concern is that the vague reference to “living conditions” inappropriately collapses the
legally cognizable duty to implement Arts. 2–34 with other, legally irrelevant,
considerations.
94
Januzi v. Secretary of State for the Home Department, [2006] 2 AC 426 (UK HL, Feb. 15,
2006). This case was concerned with the internal protection alternative, in which context
the limits on the scope of permissible return by the United Kingdom were considered.
95
“Suppose a person is subject to persecution for Convention reasons in the country of his
nationality. It is a poor country. Standards of social provision are low. There is a high level
of deprivation and want. Respect for human rights is scant. He escapes to a rich country
where, if recognised as a refugee, he would enjoy all the rights guaranteed to refugees in that
country. He could, with no fear of persecution, live elsewhere in his country of nationality,
but would there suffer all the drawbacks of living in a poor and backward country. It would
be strange if the accident of persecution were to entitle him to escape, not only from that
persecution, but from the deprivation to which his home country is subject. It would, of
course, be different if the lack of respect for human rights posed threats to his life or
exposed him to the risk of inhuman or degrading treatment or punishment”: Januzi
v. Secretary of State for the Home Department, [2006] 2 AC 426 (UK HL, Feb. 15, 2006),
at [19], per Lord Bingham.

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 5.1 p rotection f ro m ex p uls ion 827

set by the Refugee Convention is rather defined by either an absolute or contin-

gent standard of attainment, which is the sole measure of compliance.96 The
standard varies from right to right. For example, the refugee must receive the
same protection as nationals of the destination country with regard to religious
freedom (Art. 4), access to rationing systems (Art. 20), ability to undertake
primary education (Art. 22), and fiscal equity (Art. 29).97 But he or she need
only be granted the same rights as aliens generally in the destination country as
regards property rights (Art. 13) and access to post-primary education (Art.
22).98 Only a small number of rights owed by virtue of subjection to jurisdiction
or physical presence – non-discrimination as among refugees (Art. 3), respect
for personal status (Art. 12), access to the courts (Art. 16), access to administra-
tive assistance (Art. 25), issuance of identity documents (Art. 27), non-
penalization for illegal entry or presence and freedom from arbitrary detention
(Art. 31), non-refoulement (Art. 33) and consideration for assimilation or nat-
uralization (Art. 34) – are defined in absolute terms, either because the drafters
deemed them fundamental to the most basic definition of protection, or because
a contingent standard of respect is unviable given their refugee-specific nature.99
As this structure makes clear, the duty to undertake “anxious scrutiny” of
the destination state’s record of respect for acquired refugee rights as
a condition of lawful expulsion is in no sense benchmarked against the condi-
tions that prevail in the state contemplating expulsion. With the exception of
core, refugee-specific rights, the highest standard of respect demanded by the
Refugee Convention is instead whatever the destination country guarantees to
its own citizens. The pre-removal question is simply whether the requirements
of the Refugee Convention are met, with that assessment based on the stand-
ards set by the Convention. The primary focus of the pre-expulsion inquiry will
thus be whether the state party to which removal is contemplated can be relied
upon to respect the refugee’s already acquired rights – that is, those rights that
inhere in refugees who are simply under a state’s jurisdiction, or within its
territory.100 Any deprivation of such rights is, for the reasons previously
described,101 attributable to the sending state itself.
Beyond the duty to ensure respect for acquired rights, international law also
holds a state responsible if it knowingly removes a refugee to a state party that will
not respect those refugee rights that remain inchoate102 – that is, those that may be

96 97 98
See Chapters 3.2–3.3.3. See Chapter 3.3.2. See Chapter 3.2.1.
99 100 101
See Chapter 3.3.3. See Chapter 4. See text at note 72.
102
“[R]emoval or transfer of a person from the territory or jurisdiction of one state to another
does not also transfer legal obligations to that other state”: M. Foster, “Protection
Elsewhere: The Legal Implications of Requiring Refugees to Seek Protection in Another
State,” (2007) 28 Michigan Journal of International Law 223 (Foster, “Protection
Elsewhere”), at 268 (emphasis in original). See also J. Vedsted-Hansen, “Non-Admission
Policies and the Right to Protection: Refugees’ Choice Versus States’ Exclusion?,” in
F. Nicholson and P. Twomey (eds.), Refugee Rights and Realities: Evolving International

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invoked only once the refugee has established lawful presence, lawful stay, or
durable residence.103 Specifically, the removing state has a duty not to “aid or
assist” another state party to breach its legal obligations104 – in this case, to honor
all refugee rights at such time as they are owed. International law would deem
a removal to be “assistance” if it is “clearly and unequivocally connected to the
subsequent wrongful act”105 and, most important, if it is carried out “with a view
to facilitating the commission of the wrongful act.”106 Thus, removal of a refugee
to a state known indefinitely to deny refugees the right to work or to access public
relief and assistance (both owed once “lawful stay” is established)107 in furtherance
of a policy of deterring the arrival of refugees would demonstrate the requisite
specific intent, and hence be internationally unlawful.108

Concepts and Regimes 269 (1999), at 279 (emphasis in original): “Taking into account the
content and structure of the [Refugee] Convention, as well as the declaratory nature of the
determination of refugee status, it must follow that, in order to be considered an adequate
country of first asylum, the relevant state has to provide refugee protection of a quality,
and at a level, in conformity with the protection scheme laid down in the Convention.” But
Legomsky suggests a somewhat lower duty, that being only to avoid “knowingly” sending
the refugee to a place where Convention rights will not be respected, with the degree of
certainty required by the term “knowingly” to vary inversely with the importance of the
particular right: S. Legomsky, “Secondary Refugee Movements and the Return of Asylum
Seekers to Third Countries: The Meaning of Effective Protection,” (2003) 15 International
Journal of Refugee Law 567, at 624. While a helpful acknowledgment of the duty to ensure
respect for acquired rights, this analysis is problematic since there is no formal hierarchy
among refugee rights, leading to divergent views among state parties about which rights
are thought to be “important.” See generally Foster, “Protection Elsewhere,” at 270–275.
103
See Chapters 3.1.3–3.1.5.
104
“A State which aids or assists another State in the commission of an internationally wrongful
act by the latter is internationally responsible for doing so if: (a) that State does so with
knowledge of the circumstances of the internationally wrongful act; and (b) the act would be
internationally wrongful if committed by that State”: International Law Commission, “Report
of the International Law Commission on the Work of its Fifty-Third Session (23 April –
1 June and 2 July – 10 August 2001),” UN Doc. A/56/10 (2001), at 27 (Art. 16); endorsed by
“Responsibility of States for Internationally Wrongful Acts”, UN General Assembly Res. 56/
83, UNGAOR, 56th sess., 85th plen. mtg., Agenda Item 162, Supp. No. 49, UN Doc. A/RES/
56/83 (Dec. 12, 2001), at [3]; approved in Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro),
Judgment, [2007] ICJ Rep 43 (ICJ, Feb. 26, 2007), at [420].
105
International Law Commission, “Second Report on State Responsibility by Mr. James
Crawford, Special Rapporteur,” 51st sess., UN Doc A/CN.4/498/Add.1 (Apr. 1, 1999),
at [178].
106
International Law Commission, “Report of the International Law Commission on the
Work of its Fifty-Third Session (23 April – 1 June and 2 July – 10 August 2001),” UN Doc.
A/56/10 (2001), at [5]. “A State is not responsible for aid or assistance under Article 16
unless the relevant state intended, by the aid or assistance given, to facilitate the occur-
rence of the internationally wrongful conduct”: ibid.
107
Refugee Convention, at Arts. 17, 23. See Chapters 6.1 and 6.3.
108
Absent evidence of such specific intent, however, the simple fact of removal to a country in
which international rights owed at some future point will not be fully honored does not

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 5.1 p rotection f rom e xpulsion 829

More generally, even absent evidence of such specific intent, a sending state
which has actual or constructive knowledge that the destination country will
not grant Convention rights on the terms mandated by international law may
violate the duty of pacta sunt servanda – the duty to interpret a treaty in good
faith.109 If the manner in which a treaty is interpreted, including through
application, leads to a result that is manifestly unreasonable in light of that
treaty’s context, object and purpose, then that interpretation is impermissible
as a matter of international law.110 Given that the Refugee Convention is
expressly founded on the conviction that states are committed to “assur[ing]
refugees the widest possible exercise of . . . fundamental rights and
freedoms,”111 and that its language and structure are designed to grant
a clear catalog of rights to refugees, it would surely be antithetical to the
Convention’s very essence to read it as allowing a state party forcibly to expel
a refugee to a state known not to deliver those rights.
In sum, even before a refugee is lawfully present and thus entitled to the
protections of Art. 32, expulsion is constrained by the duty of the expelling
state to engage in anxious scrutiny not only of the risk of refoulement, but also
of the ability and willingness of the destination country to honor the refugee
claimant’s acquired rights. The sending state must also not aid or assist the
destination country to breach its duty to honor still inchoate rights (those
rights associated with lawful or habitual presence, lawful stay, or durable
residence). While a state only aids or assists if it seeks to facilitate an unlawful
act, that requirement is arguably satisfied where the expulsion is in aid of

amount to aiding or assisting the destination state to breach its obligations and cannot
therefore be deemed a condition precedent to removal under a protection elsewhere rule.
It would, of course, be possible to argue that the sending state is subject to an implied duty
of non-refoulement with respect to all refugee rights, that is, that it must never remove
anyone to a state where the refugee rights associated with lawful presence and higher levels
of attachment are not respected. To this point, however, courts have been prepared to
impose liability to avert extraterritorial harms only where the risk abroad reaches a level of
acute gravity – as, for example, the risk of torture or cruel and inhuman treatment. Thus
the House of Lords has determined that while a range of substantive harms may be
relevant, only the threat of a harm that amounts to a “flagrant denial or gross violation”
will be sufficient to impose responsibility to avert an extraterritorial harm: R (Ullah)
v. Special Adjudicator, [2004] 2 AC 323 (UK HL, June 17, 2004), at 352 [24], per Lord
Bingham. See e.g. Mamatkulov v. Turkey, Dec. Nos. 46827/99 and 46951/99 (ECtHR, Feb.
4, 2005). Indeed, this understanding of Strasbourg jurisprudence may go beyond what the
European Court of Human Rights has been prepared to acknowledge by way of the
breadth of the implied duty of non-return, at least where the destination state is also
bound by the European Convention for the Protection of Human Rights: see e.g. KRS
v. United Kingdom, Dec. No. 32733/08 (ECtHR, Dec. 2, 2008).
109
Vienna Convention on the Law of Treaties, adopted May 23, 1969, entered into force Jan.
27, 1980, 1155 UNTS 331 (UNTS 18232) (“Vienna Convention”), at Art. 31(1).
110
A. Aust, Modern Treaty Law and Practice (2013), at 208–209.
111
Refugee Convention, at Preamble, [2].

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a policy intended to deter the arrival of refugees by exposing them to unlawful

risks in the destination country.

5.1.2 Constraints after Lawful Presence

As originally conceived, the supplementary protection against expulsion set by
Art. 32 – which prohibits removal of a refugee to any country, even if not
a place where there is a risk of being persecuted – would only have been
granted to refugees who were “authorized to reside regularly in the territory”
of a state party.112 If subject to this level of attachment, protection against
expulsion would inhere only in refugees who benefit from some form of
officially sanctioned, ongoing presence in a state party; refugees undergoing
status verification as well as those present only for a limited period of time or
arriving in a state that declines to assess status would be excluded from the
beneficiary class.113 The drafters of Art. 32, however, opted to delete the
requirement for refugees to have a right of ongoing residence in a state party
in order to benefit from protection against expulsion. Instead, Art. 32 rights
now inhere in all refugees “lawfully in [a state party’s] territory,” which
includes those undergoing status verification, admitted for a set period of
time, or whose claim to refugee status the asylum state has opted not to
assess.114
The change seems to have been motivated by an effort to bring Art. 32 into
line with the draft version of Art. 13 of the Civil and Political Covenant, which
proposed granting all non-citizens a less robust form of protection against
expulsion once they are “lawfully in the territory of a State Party.”115 The
Report of the Ad Hoc Committee’s first session made the change to grant Art.
32 protection to refugees “lawfully in their territory,”116 with only a footnoted
explanation citing the language proposed by the Commission on Human
Rights for the draft Covenant.117
The drafters were well aware that they were providing protection against
expulsion to refugees who had yet to be recognized as refugees entitled to stay
on an ongoing basis in their territory. At the Conference of Plenipotentiaries,
the Swedish representative made reference to the “difficulty” of extending
protection against expulsion to all refugees lawfully in a state’s territory:

112
Secretary-General, “Memorandum,” at 45. As recently confirmed by the UK Supreme
Court, Art. 32 “gives a remedy against forced removal from the relevant territory,”
interpreted to include the UK sovereign base area on Cyprus: R (Tag Eldin Ramadan
Bashir) v. Secretary of State for the Home Department, [2018] UKSC 45 (UK SC, July 30,
2018), at [88].
113
See Chapter 3.1.4. 114 See Chapter 3.1.3.
115
Civil and Political Covenant, at Art. 13.
116
Ad Hoc Committee, “First Session Report,” at Annex I. 117 Ibid. at Annex II.

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 5 .1 p r o te c ti o n f r o m e xp u l s i o n 831

What criterion would in fact be applied to decide whether a refugee was

indeed lawfully in a territory? Sweden distinguished between aliens to
whom a right of establishment had been granted, and aliens possessing
only a right of temporary residence. The question did not arise in respect
of the former, but, in respect of the latter, the Swedish Government wished
to be able to expel them if it so decided when the authorization granted to
them expired.118
Despite this clear warning that the language of Art. 32 would include refugees
who had not been granted permission to stay in the asylum state, no amend-
ment was made to Art. 32 to accommodate the Swedish concern.
The most significant indication that Art. 32’s beneficiary class was intended
to include persons not yet authorized to stay in the asylum country occurred
on second reading of the Convention at the Conference of Plenipotentiaries.
The Swedish delegate this time pointed out the inconsistency between the
English language title of Art. 32 (“Expulsion of refugees lawfully admitted”)
and the French language equivalent, which used the phrase “résidant
régulièrement au pays d’accueil.” Referring to an earlier decision of the Style
Committee which had defined the equivalent English- and French-language
terms for the various levels of attachment,119 Mr. Petren observed that the
English title did not correspond to the French title (indeed, “lawfully admitted”
had not been accepted by the Style Committee at all as a relevant term of
art).120 Acknowledging the discrepancy, the Conference deleted the reference
to the level of attachment in Art. 32’s title without making any change to the
corresponding language of the text.121 Art. 32 was therefore approved on the
basis that protection against expulsion inheres in refugees “lawfully in their
territory” (in French, “se trouvant régulièrement sur leur territoire”). Because
this vote was taken immediately after attention had been drawn by the Swedish
delegate to the fact that the personal scope of Art. 32 required clarification,
with explicit reference to the fact that being “lawfully in the territory” implies
a lesser attachment to the asylum state than does “lawfully staying in the
territory,”122 it is difficult to imagine that there was any doubt among the
drafters about the significance of the Conference’s decision.123
118
Statement of Mr. Petren of Sweden, UN Doc. A/CONF.2/SR.14, July 10, 1951, at 21.
119
“Draft Convention relating to the Status of Refugees, Report of the Style Committee,” UN
Doc. A/CONF.2/102, July 24, 1951, at [5].
120
Statement of Mr. Petren of Sweden, UN Doc. A/CONF.2/SR.35, July 25, 1951, at 20.
121
The vote in favor was 21–0 (1 abstention): ibid.
122
“Draft Convention relating to the Status of Refugees, Report of the Style Committee,” UN
Doc. A/CONF.2/102, July 24, 1951, at [5]. The attention of delegates was expressly drawn
to this report immediately prior to the vote on Art. 32: Statement of Mr. Petren of Sweden,
UN Doc. A/CONF.2/SR.35, July 25, 1951, at 20.
123
See G. Stenberg, Non-expulsion and Non-refoulement (1989) (Stenberg, Non-expulsion), at
92: “Based on the fact that the drafters intended that a refugee should be regarded as
lawfully in the territory regardless of the period of time for which his sojourn has been

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There is moreover a particular logic to granting Art. 32 protection against

expulsion to refugees who have been admitted to a status assessment process,
but who are awaiting the results of that inquiry. Once the refugee has been
allowed to enter a refugee status determination procedure and has acquitted
himself or herself of all responsibilities to contribute to the inquiry into his or
her claim (thereby regularizing his or her presence, and becoming “lawfully
present” – though not yet “lawfully staying” – in the state), it would be harsh to
force him or her away before a final answer is given. If the asylum state is
genuinely overwhelmed, it may of course exercise the option initially to
redirect refugees to other states where their rights will be respected, and in
which there is no direct or indirect risk of being persecuted.124 And if the
concern is rather to ensure that the refugee’s presence does not pose
a particularized risk, then the right under Art. 32 to expel a refugee on national
security or public order grounds, as described below,125 surely suffices. In any
event, the duty under Art. 32 to desist from expulsion is purely provisional
since the refugee’s “lawful presence” normally comes to an end if and when
refugee status is denied or other provisional status comes to an end.
The basic rationale for going beyond the duty of non-refoulement to impose
limits on the right of states to expel lawfully present refugees to even non-
persecutory countries was elegantly stated in the Secretary-General’s back-
ground study for the Convention:
There is little likelihood that a foreign country will consent to receive
a refugee whose expulsion has been ordered and who is thereby stamped as
undesirable. As every frontier is barred to a refugee whose expulsion has
been ordered, only two possibilities are open to him, either not to obey the
order and go into hiding to avoid being caught or to cross a frontier
illegally and clandestinely enter the territory of a neighbouring country.
In that country, too, he must go into hiding to avoid being caught. In either
case, after a certain time he is discovered, arrested, prosecuted, sentenced
and escorted to the frontier after serving his sentence. Caught between two
sovereign orders, one ordering him to leave the country and the other
forbidding his entry into the neighbouring country, he leads the life of an
outlaw and may in the end become a public danger. In this way measures
of expulsion, . . . intended to protect law and order, achieve opposite
results when an attempt is made to apply them to refugees without taking
account of their particular position.126

authorized it may nevertheless tentatively be submitted that neither did the drafters intend
that protection in accordance with Article 32 should be extended only to those whose
refugee status had already been recognized by the expelling State and not to those refugees
whose status had not yet been recognized.”
124
See text at note 55. 125 See text at note 174 ff.
126
Secretary-General, “Memorandum,” at 46.

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 5.1 protection f rom e xpulsi on 833

There were, however, differences of view about just how best to effect the
protection of lawfully present refugees from expulsion. The Secretary-General’s
draft of the combined duty of non-refoulement and non-expulsion disallowed
either act unless “dictated by reasons of national security or public order”127 and
would have authorized only “a judicial authority”128 to expel a refugee. The
competing French draft for Art. 32, on the other hand, would have imposed no
substantive limits on the right to expel refugees and offered no guarantee of an
opportunity to appear in court. It would be enough if the refugee were allowed “to
submit evidence to clear himself, and to be represented before the competent
judicial or administrative authority.”129 A third approach suggested by a non-
governmental organization, the Agudas Israel World Organization, presented
states with a middle ground approach: they would agree to constrain the expulsion
of refugees, but could elect to do so either on substantive grounds (limited to
“national security”) or procedurally (by requiring that any expulsion decision be
reached “in pursuance of a decision of a judicial authority,” presumably for
a broader range of reasons).130 Ultimately the delegates opted for a more flexible
version of the approach initially proposed by the Secretary-General, that being
that the expulsion of refugees would be subject to both procedural and substantive
limits. But not only courts, but also administrative decision-makers, could be
entrusted to afford the refugee the necessary procedural guarantees. And
a broader range of substantive concerns would suffice to justify expulsion – either
national security or public order grounds could be invoked.

5.1.3 Procedural Constraints on Expulsion

The procedure by which refugees could be expelled was the first concern of the
drafters. While acknowledging the general right of states to remove non-
citizens from their territory,131 safeguards were felt necessary because
127
Ibid. at 45.
128
Ibid. This right to contest expulsion before a court was based on a generous interpretation
of the draft of what became Art. 13 of the International Covenant on Civil and Political
Rights, 999 UNTS 172 (UNTS 14668), adopted Dec. 16, 1966, entered into force Mar. 23,
1976 (Civil and Political Covenant), then framed to require the expulsion of any alien to be
ordered “according to such procedure and safeguards as are provided by law”: Secretary-
General, “Memorandum,” at 47.
129
France, “Proposal for a Draft Convention,” UN Doc. E/AC.32/L.3, Jan. 17, 1950 (France,
“Draft Convention”), at 9.
130
“Communication from the Agudas Israel World Organization,” UN Doc. E/C.2/242, Feb.
1, 1950, at [2]. This approach was selected as the basis for the working draft of Art. 32 on
the basis of a proposal from the British representative, who found that it “presented the
question of expulsion and non-admittance in a more logical form than did the others”:
Statement of Sir Leslie Brass of the United Kingdom, UN Doc. E/AC.32/SR.20, Feb. 1,
1950, at 2–3.
131
“The sovereign right of a State to remove . . . from its territory foreigners regarded as
undesirable cannot be challenged”: Secretary-General, “Memorandum,” at 45.

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[e]xperience had shown that a large number of expulsion orders are due to
false accusations and the malice of ousted competitors. Sometimes the
orders are due to an error de persona. So long as expulsion proceedings are
secret and so long as the expelled person is deprived of any means of
presenting his case, mistaken decisions are inevitable.132
As noted above,133 the Secretary-General’s view was that entrusting all
expulsion cases to the courts would be the best means of ensuring due
process. The American representative championed this approach; he was
adamant that allowing lesser tribunals or authorities to expel a refugee
“would deprive the refugee of the safeguards which every individual was
entitled to expect from judicial authority. He would be left to the discretion of
police measures.”134 It was soon clear, however, that most governments were
unwilling to guarantee judicial oversight of refugee expulsion.135 The
American representative thus acquiesced in a Canadian compromise,136
under which governments could entrust expulsion decisions to administra-
tive authorities but would formally commit themselves to ensure that expul-
sion would be ordered “only in pursuance of a decision reached by due
process of law.”137 This most basic standard was clearly not respected, for
example, when Algeria simply expelled thousands of refugees at gunpoint
into the Sahara Desert.138
Not only must the initial decision be made in accordance with due
process, but Art. 32 also explicitly entitles refugees “to appeal to . . . compe-
tent authority or . . . persons specially designated by the competent authority
[emphasis added]”139 – a duty clearly ignored when Jordan allowed its
security forces to expel Syrian refugees without affording them an oppor-
tunity to contest their removal or to seek legal assistance.140 A simple
administrative review by the supervisor of a border guard will not
132
Ibid. at 47. See also Ad Hoc Committee, “First Session Report,” at Annex II.
133
See text at note 128.
134
Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.20, Feb. 1, 1950, at 6.
135
See comments of the representatives of Canada, Turkey, France, and Belgium, ibid. at 6–7;
and comments of the government of Austria in United Nations, “Compilation of
Comments,” at 55.
136
“The essential thing was that it should not be possible to expel refugees other than in
accordance with a regular procedure provided by the law, whether administrative or
judicial”: Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.20, Feb.
1, 1950, at 12.
137
Statement of the Chairman, Mr. Chance of Canada, ibid. at 7. 138 See text at note 36.
139
In contrast, under the more generally applicable Art. 13 of the Civil and Political Covenant
aliens enjoy only a right to have their case “reviewed by” the competent authority or its
designate. Schabas nonetheless contends that Art. 13 “is clearly inspired by Art. 32(2) of
the 1951 Refugee Convention”: W. Schabas, UN International Covenant on Civil and
Political Rights: Nowak’s CCPR Commentary (2019) (Schabas, Nowak’s CCPR
Commentary), at 344.
140
See text at note 40.

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 5.1 protection f rom e xpulsi on 835

suffice;141 the appeal provided should rather be a formal reevaluation of the

kind implied by the notion of the right to “présenter un recours.”142 While
the language was not intended to require access to a formal appellate
court143 or even directly to the ultimate decision-maker,144 there was
141
In the Ad Hoc Committee, the French representative reacted to the original wording of the
Canadian amendment by observing that “he had not grasped the exact meaning of the
words ‘final decision.’ In France an expulsion order was issued by the Prefect, and no
administrative authority could usurp his right. His order was therefore final”: Statement of
Mr. Ordonneau of France, UN Doc. E/AC.32/SR.20, Feb. 1, 1950, at 18. The Chairman
responded that the amendment had, in fact, been intended to ensure that the ultimate
decision could not be made by a police officer: Statement of the Chairman, Mr. Chance of
Canada, ibid. At its second session, the Ad Hoc Committee dropped the (arguably
ambiguous) reference to a “final decision” in favor of an explicit requirement to allow
a refugee to “appeal,” noting that “[t]he procedural safeguards accorded to refugees were
clarified and are now contained wholly in paragraph 2”: “Report of the Ad Hoc Committee
on Refugees and Stateless Persons, Second Session,” UN Doc. E/1850, Aug. 25, 1950 (Ad
Hoc Committee, “Second Session Report”), at 13.
142
The authoritative nature of the French text is clear from the remarks of the British
representative, who had been the most ardent opponent of access to an appellate court
in cases of expulsion. The French representative suggested that the French notion of
“présenter un recours” could most readily be translated into English as “to lodge an
appeal”: Statement of Mr. Rochefort of France, UN Doc. A/CONF.2/SR.15, July 11,
1951, at 14. The British representative replied that the notion of “présenter un recours”
“was in fact equivalent to the English word ‘appeal’”: Statement of Mr. Hoare of the United
Kingdom, ibid. The decision to employ the term “appeal” in Art. 32(2) should therefore be
understood in context to require access to a procedure of reevaluation of the kind implied
by the French concept of “présenter un recours.”
143
“The position of the United Kingdom was similar to that of Italy, since there was no
specially constituted appeals tribunal. But the reference to the procedure of appeal, at least
in the English version . . . was not so specific as to make the text unacceptable to the United
Kingdom Government”: Statement of Mr. Hoare of the United Kingdom, UN Doc. A/
CONF.2/SR.15, July 11, 1951, at 13. In some circumstances, however, it was recognized
that appeal to a court might be required. At the Conference of Plenipotentiaries, the
Danish Chairman asked, “How, for example, would an appeal be possible if the decision
had been taken by the King in Council? He assumed that the meaning of the text was that,
in the event of expulsion pronounced by the highest authority, the refugee would be given
the chance of having his case re-examined. In countries where such a sentence would have
been passed by local authority, the appeal would be addressed to a court of higher
instance”: Statement of the Chairman, Mr. Larsen of Denmark, ibid. at 14–15. Schabas
is thus technically correct to argue that what is meant by Art. 32(2) “is the review of an
administrative decision . . . and not a judicial appeal from an earlier decision of a tribunal”
(Schabas, Nowak’s CCPR Commentary, at 345). It remains, though, that more is required
by Art. 32(2) than simply the ability, per Art. 13 of the Covenant, to submit reasons against
expulsion and to have these “reviewed by a competent authority” (ibid. at 345). The appeal
must rather be more than a simple administrative review, and it must be to an authority
that is not just competent but also both of some seniority and with the practical capacity to
prevent expulsion. Art. 32(2) also imposes other more demanding procedural standards
than does Art. 13 of the Covenant: see text at note 151 ff.
144
The British delegate was insistent that there could be no question of requiring the personal
involvement of the ultimate decision-maker on expulsion cases, that being the Home

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agreement that a refugee must be entitled to appeal his or her case to an

authority of some seniority.145 Most importantly,“[w]hat mattered was that
a refugee should have full opportunity of presenting his case to the proper
authority.”146 Thus, the appellate authority should, at the very least, be explicitly
empowered to take account of all the circumstances of the case, including the
special vulnerabilities and rights of refugees, and must, of course, have real
authority over the expulsion process – as for example was the case when the
Israeli Supreme Court ordered a suspension of the plan to expel some 40,000
refugees to Uganda in 2018.147 In contrast, Kuwait’s expulsion of refugees
suspected of collaboration with Iraq – even though the charges against them
had either been withdrawn or dismissed148 – makes clear that its courts did not,
in fact, possess the degree of authority required by Art. 32.
Like all aliens, refugees are entitled to claim the benefit of the Civil and
Political Covenant’s right to a “review” of a decision to expel them, including to
submit reasons against their expulsion149 and to be represented.150 But Art.

Secretary in the United Kingdom: Statement of Sir Leslie Brass of the United Kingdom,
UN Doc. E/AC.32/SR.20, Feb. 1, 1950, at 20. His government introduced an amendment
adopted at the Conference of Plenipotentiaries, which resulted in the clarification in Art.
32(2) that the appeal could be to “competent authority or a person or persons specially
designated by the competent authority”: UN Doc. A/CONF.2/60.
145
Davy offers, but does not develop, the view that “[g]iven the affinities between refugee law and
human rights law and given the developments in human rights law over the past decades . . .
due process of law is served only if the complaints raised by refugees under the prospect of an
expulsion order are scrutinized by an independent and impartial body authorized to assess
their complaints from the perspective of abuse of power”: Davy, “Article 32,” at 1318.
146
Statement of Mr. Hoare of the United Kingdom, ibid. at 13. 147 See text at note 24.
148
See text at note 33.
149
Schabas observes that “[e]ven though the reasons against a pending expulsion should, as
a rule, be asserted in an oral hearing, Art. 13 does not . . . give rise to a right to personal
appearance”: Schabas, Nowak’s CCPR Commentary, at 344–345. Importantly, however, the
individuated nature of the requisite procedural rights means that “mass expulsions cannot
satisfy the procedural requirements of article 13, which compel consideration of each
prospective deportee’s case. This demonstrates how procedural guarantees import at least
some degree of substantive accountability”: S. Joseph and M. Castan, The International
Covenant on Civil and Political Rights: Cases, Materials, and Commentary (2013) (Joseph
and Castan, ICCPR), at 419, referencing UN Human Rights Committee, “General Comment
No. 15: The Position of Aliens under the Covenant” (1986), UN Doc. HRI/GEN/1/Rev.7,
May 12, 2004, at [10]. It may also be the case that the guarantee of Covenant Art. 2(3) to
provide an effective remedy for human rights violations requires – at least where a risk to Art.
6 or 7 interests is at stake – “that asylum-seekers be able to appeal first-instance decisions to an
independent body” and that “such appeals must not be subject to unduly short time limits,
even in accelerated asylum procedures, and must have suspensive effective vis-à-vis the
expulsion of the asylum-seekers”: D. Cantor, “Reframing Relationships: Revisiting the
Procedural Standards for Refugee Status Determination in Light of Recent Human Rights
Treaty Body Jurisprudence,” (2015) 34 Refugee Survey Quarterly 79, at 88.
150
“[A] person threatened with expulsion is not entitled to legal counsel or to the appoint-
ment of an attorney”: Schabas, Nowak’s CCPR Commentary, at 346. The jurisprudence of

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 5.1 pr o t e c t i o n f r o m ex p u l s i o n 837

32’s more explicit language goes farther, unambiguously affirming the right of
refugees to “submit evidence” in support of their case, not merely to state their
reasons for resisting expulsion.151 The breadth of relevant evidence moreover
includes any evidence which may assist the refugee to “clear himself,” not just
evidence “against expulsion.”152 There can therefore be no question that the
person or body considering a refugee’s appeal against expulsion must consider
evidence relevant to, for example, the soundness of a criminal conviction
which underpins the expulsion order, rather than limiting itself simply to the
consideration of evidence about the propriety of the expulsion order itself.
Most important of all, Art. 32 of the Refugee Convention expressly requires
that the decision to expel a refugee “shall be only in pursuance of a decision
reached in accordance with due process of law.” The more general formulation
in Art. 13 of the Civil and Political Covenant – stipulating simply that the
expulsion decision be “reached in accordance with law”153 – requires only that
“such a decision must be made by a court or an administrative authority on the
basis of a law affording protection against arbitrary expulsion through the
establishment of corresponding procedural guarantees.”154 In contrast,
the drafters of the Refugee Convention were emphatic that a stronger guaran-
tee of safeguards was required155 in order to ensure a meaningful “legal check
on the powers of the administration.”156 The Israeli delegate, in particular,
insisted that the specific protection needs of refugees justified stronger protec-
tions against expulsion than those afforded aliens generally:

the Human Rights Committee, in particular Ahani v. Canada, HRC Comm. No. 1051/
2002, decided June 15, 2004, may nonetheless be read to provide “that aliens are expected,
under the Covenant, to receive a hearing accompanied by basic due process rights of
notice, disclosure, representation, and an opportunity to be heard”: G. Heckman, “Ahani
v. Canada,” (2005) 99(3) American Journal of International Law 669, at 673–674.
151
For example, only two dissenting members of the Human Rights Committee found
a breach of Art. 13 of the Civil and Political Covenant in a case involving an Iranian
expelled by Australia, arguing that the applicant “should have been given the opportunity
to comment on the information submitted to [authorities], at least in summary form”:
Mansour Leghaei v. Australia, HRC Comm. No. 1937/2010, UN Doc. CCPR/C/113/D/
1937/2010, decided Mar. 26, 2015, at Appendix, [5].
152
While Schabas may be right that the more constrained language of the Civil and Political
Covenant “did not change the substance of the right” as conceived in the Refugee
Convention (Schabas, Nowak’s CCPR Commentary, at 344) the greater precision of Art.
32 of the Refugee Convention more readily forecloses debate on these points. Nor do
Joseph and Castan share Schabas’ optimism, their analysis finding that “[i]t is possible that
the alien’s right of review simply means a review of the initial expulsion decision, which
may have been made without the furnishing of an opportunity for the alien to present
counter-arguments”: Joseph and Castan, ICCPR, at 424.
153
Civil and Political Covenant, at Art. 13.
154
Schabas, Nowak’s CCPR Commentary, at 340.
155
Statement of Mr. Weis of the International Refugee Organization, UN Doc. E/AC.32/
SR.40, Aug. 22, 1950, at 15.
156
Statement of Mr. Juvigny of France, ibid. at 12.

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[T]here should be a great distinction between the treatment of aliens in

general and the treatment of refugees. The stage had now been reached in
social legislation when social cases could be spoken of, and the great
problem was, who was responsible for the social cases represented by the
refugee. In the case of aliens, the answer was their own country; in the case
of refugees, the answer was no country. If refugees were not nationals in
the political sense of the country where they were resident, however, they
were in a moral sense. It seemed to him that countries should accept
refugees as human beings, with all the infirmities and weaknesses inherent
in the human condition, and treat them accordingly when they offended
against national laws.157
To this end, the Chinese representative endorsed the Canadian proposal to
require respect for due process,158 remarking that “[t]he concept of due
process, familiar to those who understood Anglo-American common law,
would be easily acceptable.”159 At its most basic level, due process embraces
a duty to respect a range of technical, procedural requirements associated with
basic fairness. For example, the High Commissioner for Refugees noted during
the Conference of Plenipotentiaries that he “assumed that it was understood
that a refugee would not be expelled while his case was sub judice.”160 But as
Weis has correctly observed, due process also has a fundamental substantive
dimension which “means that the [expulsion] decision must be based on law,
that it may not be unreasonable, arbitrary or capricious and must have a real
and substantive relation to its object.”161 This is a marked advance on the
general requirement set by Art. 13 of the Civil and Political Covenant which
sadly “is not even a comprehensive guarantee against arbitrary expulsion.”162
Nor did the drafters of Art. 32 simply agree that adherence to due process
norms was desirable; they rather formally bound themselves to respect these
standards.163 There was no enthusiasm for a French proposal that decisions be

157
Statement of Mr. Robinson of Israel, ibid. at 16.
158
Statement of the Chairman, Mr. Chance of Canada, UN Doc. E/AC.32/SR.20, Feb. 1, 1950,
at 7.
159
Statement of Mr. Cha of China, UN Doc. E/AC.32/SR.40, Aug. 22, 1950, at 24.
160
Statement of Mr. van Heuven Goedhart of UNHCR, UN Doc. A/CONF.2/SR.15, July 11,
1951, at 16.
161
Weis, Travaux, at 322.
162
Joseph and Castan, ICCPR, at 429. An argument may, however, be made that any
“arbitrary” expulsion is, given the other requirements of the Covenant, necessarily not
“in accordance with law”: Schabas, Nowak’s CCPR Commentary, at 341.
163
There was little support for an effort by Italy to delete the reference to respect for due
process: UN Doc. A/CONF.2/57. Italy withdrew its proposal: Statement of Mr. Theodoli of
Italy, UN Doc. A/CONF.2/SR.15, July 11, 1951, at 13. Davy takes the view that these
procedural requirements are “imperfect,” arguing that “Article 32, para. 2 . . . establishes
State obligations, but no immediate enforceable subjective rights of the refugees con-
cerned. Exercisable rights require that legislative steps be taken by the domestic parlia-
ments”: Davy, “Article 32,” at 1300. While it is of course true that domestication is

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 5.1 p rotection f ro m ex p uls ion 839

reached only “with regard for” (rather than “in accordance with”) due process
of law.164 Nor even was there agreement to a Belgian proposal that the three
specific aspects of due process mentioned in Art. 32(2) – the right to submit
evidence, to appeal, and to be represented – would be mandatory only
“[i]nsofar as national security permits.”165 Baron van Boetzelaer of the
Netherlands successfully persuaded the Conference that limitations on the
three stipulated due process rights should not be possible simply because
national security was involved, but rather only when “imperative” national
security concerns so required.166 The text of Art. 32 was thus amended to allow
state parties exceptionally to justify limits on three aspects of a refugee’s due
process rights – to submit evidence, to appeal, and to be represented – but only
“where compelling reasons of national security [so] require.”
Three key notions therefore circumscribe the possibility of procedural
constraints on the applicability of Art. 32(2).
First, there is no general right to avoid respect for due process norms even
when compelling national security concerns require derogation: only the three
rights set out in the second sentence of Art. 32(2) may be constrained.167 Thus,
for example, not even compelling national security concerns can justify the
expulsion of a refugee under a procedure that is unreasonable, arbitrary, or
capricious. In line with this approach, whatever the suspicions of Kenya that
Somali refugees had been involved in attacks on its forces,168 summary en
masse expulsion is arbitrary and thus always a breach of Art. 32(2).
Second, because Art. 32(2) is a highly constrained, necessity-based excep-
tion (“where compelling reasons of national security otherwise require”) to
a fundamental norm, the state party seeking to avoid its usual due process

required, this critique may be somewhat overstated, as international law could not
simultaneously mandate rules of real specificity and still retain its relevance across all
legal systems.
164
Statement of Mr. Juvigny of France, UN Doc. E/AC.32/SR.40, Aug. 22, 1950, at 29. France
had formally tabled comments to similar effect, observing that “[t]his modification would
make the text more flexible and cover urgent cases which might require a simpler
procedure”: Comments of France in United Nations, “Compilation of Comments,” at
56. It had also tabled a formal amendment to this end (see UN Doc. A/CONF.2/63), which
it subsequently withdrew: Statement of Mr. Rochefort of France, UN Doc. A/CONF.2/
SR.15, July 11, 1951, at 13.
165
UN Doc. A/CONF.2/68. The Belgian representative “understood the motives that had
prompted the French and Italian delegations to submit their amendments . . . He won-
dered whether a reservation concerning national security would not meet the points that
the French and Italian delegations had in mind”: Statement of Mr. Herment of Belgium,
UN Doc. A/CONF.2/SR.15, July 11, 1951, at 12.
166
Statement of Baron van Boetzelaer of the Netherlands, UN Doc. A/CONF.2/SR.15, July 11,
1951, at 15.
167
“Total secrecy, total exclusion of review, or a pro forma review by a court imply an
unjustifiable denial of individual rights”: Davy, “Article 32,” at 1320.
168
See text at note 45.

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responsibilities must establish that respect for one or more of the three listed
due process rights cannot be reconciled to the national security risk at issue.169
The asylum state must thus limit its restrictions on the due process right in
question to only what is objectively necessary to safeguard its compelling
security interest. This approach is comparable to that adopted by the
European Court of Human Rights in the case of Chahal v. United Kingdom,
in which the Court found that limitations on due process even when consider-
ing the expulsion of an alleged terrorist asylum-seeker must be conceived in
the least intrusive fashion possible.170 As such, Malaysia’s expulsion of Tamil
refugees on the grounds of terrorism concerns – relying on secret evidence and
with no process or opportunity whatever to answer those charges171 – would be
unlikely to meet the bar of Art. 32(2).
Third, the exception to Art. 32(2) is logically difficult to invoke outside the
more formal judicial arena. As Grahl-Madsen has observed,
It is difficult to see that this exception is of much relevance in
a system where the power to expel lies exclusively with administrative
authorities. Even if they have reached their decision on the basis of
confidential material, the nature of which may not be disclosed
without endangering national security, there is hardly any reason
why the refugee should not be allowed to submit evidence, appeal
or be represented. This will, after all, not force the authorities to
disclose their sources of information.
If, on the other hand, the law provides for hearings before or
appeals to a judicial or semi-judicial authority, it may be necessary
for the administration to plead that certain evidence, an appeal or
presentations by counsel are non-receivable by the tribunal, because if
the latter received such pleas, the administration would be forced to

169
“The adjective ‘compelling’ was meant to better preserve the interests of refugees in case
a contracting State moved to restrict their rights for the sake of national security”: Davy,
“Article 32,” at 1319.
170
“The Court recognises that the use of confidential material may be unavoidable where
national security is at stake. This does not mean, however, that the national authorities can
be free from effective control by the domestic courts whenever they choose to assert that
national security and terrorism are involved . . . The Court attaches significance to the fact
that . . . in Canada a more effective form of judicial control has been developed in cases of
this type. This example illustrates that there are techniques which can be employed which
both accommodate legitimate security concerns about the nature and sources of intelli-
gence information and yet accord the individual a substantial measure of procedural
justice”: Chahal v. United Kingdom, (1996) 23 EHRR 413 (ECtHR, Nov. 15, 1996), at [131].
Sadly, however, the UN Human Rights Committee determined in one case that it was
sufficient for a state to show “plausible grounds” for invocation of the national security
exception to the right to appeal an expulsion decision: Mohammed Alzery v. Sweden,
Comm. No. 1416/2005, UN Doc. CCPR/C/88/D/1416/2005, decided Oct. 25, 2006, at
[11.10].
171
See text at note 34.

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 5 .1 pr ot ec ti on f rom e x pul si on 841

counter them by submitting classified material. Being an exception,

this provision is subject to restrictive interpretation.172

5.1.4 Substantive Constraints on Expulsion

While the Refugee Convention’s insistence on due process before expul-
sion is clearly important, the most significant advantage of the Refugee
Convention is that – in contrast to Article 13 of the Civil and Political
Covenant173 – it goes beyond procedural rules to mandate the presump-
tive immunity from expulsion of refugees lawfully in an asylum state.174
The expulsion of a refugee may be lawfully pursued in only two cases,
namely when either “national security” or “public order” grounds
require such action.
As successfully argued by the representative of the International Refugee
Organization, substantive limits on refugee expulsion make ethical and practical
good sense:
Several representatives had said that there was no reason for granting
special privileges to refugees [in relation to expulsion]. He submitted
that there were strong grounds for doing so, above all the ground that
aliens possessing an effective nationality could return to their country of
nationality in case of expulsion, whereas for a refugee it was a matter of life
and death, as he had no other country to go to.175

172
Grahl-Madsen, Commentary, at 222.
173
“[T]he Covenant contains . . . [no] general prohibition of expulsion . . . Residency abroad
is not a right but rather a privilege . . . Art. 13 does not provide for a prohibition of
expulsion, but it does set forth certain procedural guarantees”: Schabas, Nowak’s CCPR
Commentary, at 335–336. He notes that “proposals for an exhaustive listing of substantive
grounds for expulsion met with little acceptance” in the drafting of the Civil and Political
Covenant: ibid. at 337. Indeed, one commentary on the Covenant gives its analysis of Art.
13 the title “Procedural Rights Against Expulsion”: Joseph and Castan, ICCPR, at 418. This
is because “Article 13 does not provide for substantive freedom from expulsion”: ibid.
174
This is perhaps the most important reason to reject Chetail’s view that Art. 32 of the
Refugee Convention has been eclipsed by Art. 13 of the Civil and Political Covenant:
V. Chetail, “Are Refugee Rights Human Rights? An Unorthodox Questioning of the
Relations between Refugee Law and Human Rights Law,” in R. Rubio-Marin ed.,
Human Rights and Immigration 19 (2014), at 58. His position that the existence in the
Refugee Convention of substantive grounds for expulsion not found in the Covenant is
a “negligible [difference] because national security and public order are relatively broad
notions” (ibid.) is not sound, as the two grounds are in fact more limited than they might
first appear, as described below. In any event, even fungible grounds are better than no
grounds at all – the reality under Art. 13 of the Civil and Political Covenant: see Joseph and
Castan, ICCPR, at 429.
175
Statement of Mr. Weis of the IRO, UN Doc. E/AC.32/SR.40, Aug. 22, 1950, at 15.

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The drafters therefore agreed that refugees would be entitled to assert both
procedural and substantive limitations on the usual right of states to expel non-
citizens:
[T]he measure of expulsion should be decreed only after regular proced-
ure. Such a safeguard did not, however, appear to be sufficient, for
a refugee could then be expelled in due and proper form for even a slight
offence. States would have to undertake not to resort to the ultima ratio of
expulsion except for very grave reasons, namely, actions endangering
national security or public order. Thus the refugee would be protected
both in the matter of procedure and in that of grounds, which was not the
least important consideration.176
Because an expulsion is lawful only where based on national security or public
order grounds, the British effort to expel the Saudi dissident asylum-seeker
Mohammed al-Mas’ari in order to safeguard its trade links or to promote
international comity177 was in contravention of Art. 32.
Only a removal affirmatively grounded in national security or public order
concerns, as described below,178 is compatible with the requirements of the
Refugee Convention.
The clearest situation in which a refugee may lawfully be expelled is when
his or her presence in the asylum state poses a risk to that country’s national
security.179 Because a threat to national security is also grounds for refoulement
under Art. 33(2),180 a refugee expelled on national security grounds may be
removed even to his or her country of origin if no alternative destination can be
identified.181 The core meaning of “national security” has already been dis-
cussed at some length in the context of the right of asylum states to take
provisional measures under Art. 9 of the Refugee Convention,182 and noted
in relation to the right of states to engage in individuated refoulement.183 The
cases most readily identified as justifying expulsion on grounds of national

176
Statement of Mr. Robinson of Israel, UN Doc. E/AC.32/SR.20, Feb. 1, 1950, at 10.
177
See text at note 23.
178
See text at note 179 (national security) and note 193 (public order).
179
“When the drafters of the 1951 Convention discussed what was to become Art. 32, para. 1,
they scarcely reflected upon the meaning of the term ‘national security’”: Davy, “Article
32,” at 1308.
180
See Chapter 4.1.4 at note 510 ff.
181
There are, however, often legal obligations beyond those set by the Refugee Convention
which limit the right of a state to return an individual to the risk of persecution: see, in
particular, Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, 1465 UNTS 85 (UNTS 24841), adopted Dec. 10, 1984, entered
into force June 26, 1987 (Torture Convention), at Art. 3; the Civil and Political Covenant,
at Arts. 6 and 7; and the European Convention for the Protection of Human Rights and
Fundamental Freedoms, 213 UNTS 221 (UNTS 2889), done Nov. 4, 1950, entered into
force Sept. 3, 1953, at Art. 3.
182
See Chapter 3.5.1 at note 669 ff. 183 See Chapter 4.1.4 at note 520.

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 5.1 p rotection f ro m ex p uls ion 843

security are those involving a refugee who seeks directly to attack the political
integrity of the host state. For example, in the discussions leading to the
adoption of Art. 32, the Venezuelan representative was emphatic that “young
countries . . . subject to internal upheavals and revolutions” would be unlikely
to sign the Convention unless guaranteed the right to expel refugees who
attacked their basic democratic institutions:
Venezuela had experienced disturbances, accompanied by violence, in
which refugees from various countries had taken part; the people of
Venezuela had suffered a great deal during and following those upheavals
and they would not accept a convention for refugees which contained any
provisions that would prevent them from defending their own
institutions.184
Thus, if Zimbabwe had followed the required procedures before expelling the
Central African refugees who were intending to murder key political
leaders,185 expulsion on national security grounds may have been reconcilable
to Art. 32.
Under modern conceptions endorsed by senior courts, the threat to national
security need be neither direct nor immediate. Instead, a refugee is understood
to pose a risk to the host state’s national security if his or her presence or
actions give rise to an objectively reasonable, real possibility of directly or
indirectly inflicted substantial harm to the host state’s most basic interests,
including the risk of an armed attack on its territory or its citizens, or the
destruction of its democratic institutions.186 As such, if Cameroon had
respected relevant due process norms (which it sadly did not), it would likely
have been entitled to expel any Boko Haram infiltrator in the Nigerian refugee
population found to have been engaged in suicide bombings and other deadly
attacks on its residents.187
While this test clearly leaves states a substantial margin of appreciation,
a threat to national security must be capable of objective justification.188 As the
Supreme Court of Canada has put it, the threat to a state’s most basic interests
must be “grounded on objectively reasonable suspicion.”189 There is no
requirement, though, that the refugee already have been convicted or even
charged with a criminal offense. Indeed, as Grahl-Madsen notes, “an alien may
offend against national security even if he cannot be considered guilty of any

184
Statement of Mr. Perez Perozo of Venezuela, UN Doc. E/AC.32/SR.20, Feb. 1, 1950, at 8.
185
See text at note 42. 186 See Chapter 3.5.1 at note 680. 187 See text at note 43.
188
The American representative to the Ad Hoc Committee was of the view, for example, that
there was a difference between the simple declaration of a national emergency by a head of
state and what was required to establish national security grounds for the expulsion of
a refugee: Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.40, Aug. 22,
1950, at 14.
189
Suresh v. Canada, [2002] 1 SCR 3 (Can. SC, Jan. 11, 2002), at [90].

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crime.”190 Under this approach, and assuming the credibility of the apartheid-
era South African government’s threats to invade neighboring states which
provided asylum to ANC and other refugees,191 their expulsion in line with due
process guarantees would not have violated Art. 32.192 Similarly, objection
could also not be taken to the expulsion of a refugee whose terrorist acts against
other states indirectly pose a credible threat to the security of the host state.
The majority of states also favored the inclusion of a second, more fluid
ground for expulsion: “public order.” The core concern of the drafters was to
allow an asylum state to expel a refugee whose presence posed a risk to the
safety and security of citizens. Whereas national security primarily addresses
threats emanating from outside the host state’s borders, public order was
understood as a general category of concerns focusing on the importance of
maintaining basic internal security.193 Refugees who committed serious
crimes,194 or who “obstinately refused to abide by the laws,”195 were the
190
Grahl-Madsen, Commentary, at 203. 191 See text at note 41.
192
As Maluwa wrote in relation to one such neighboring state, “Botswana’s commitment and
bona fides with regard to the protection of refugees from other States in the region, and in
particular those from South Africa, cannot be doubted. Nor, judging from its official
pronouncements, can one charge Botswana with a failure to appreciate the duties and
obligations incumbent upon it under international law with regard to the granting of
asylum and protection to South African and other refugees. Responsibility for the breach
of international law in this regard, therefore, must be placed squarely upon South Africa
alone”: T. Maluwa, “The Concept of Asylum and the Protection of Refugees in Botswana:
Some Legal and Political Aspects,” (1990) 2(4) International Journal of Refugee Law 587,
at 607.
193
“[I]n [Venezuela], ‘public order’ was synonymous with internal order, while ‘national
security’ implied ‘international order’ . . . [T]he two ideas complemented each other and
were closely linked”: Statement of Mr. Perez Perozo of Venezuela, UN Doc. E/AC.32/
SR.20, Feb. 1, 1950, at 18. This led the Israeli delegate to propose “the adoption of the
words ‘internal and external national security’ as the words ‘public order’ could in fact give
rise to different interpretations”: Statement of Mr. Robinson of Israel, ibid. at 19. This
suggestion was not taken up, however, as there was a strong preference among delegates
not to abandon the traditional term of art, “public policy.” Even the British representative
supported retention of this civil law construct. He “objected to the introduction of new,
and hitherto unknown, terms”: Statement of Sir Leslie Brass of the United Kingdom, ibid.
194
Some references to the right of states to expel refugees on public order grounds were not
clearly limited to serious offenses. Belgium “pointed out that a refugee who broke the laws
also undermined public order”: Statement of Mr. Cuvelier of Belgium, ibid. at 16. Sir Leslie
Brass advised that “[i]n the United Kingdom, deportations were ordered on grounds of
national security or public order only, which included offences against the law”: Statement
of Sir Leslie Brass of the United Kingdom, ibid. at 17. Yet the importance of not
authorizing expulsion for “even a slight offence” was insisted upon by the Israeli repre-
sentative: Statement of Mr. Robinson of Israel, ibid. at 10. See also text at notes 198–203, in
which concern was expressed about the potential over-breadth of substitute language that
would have authorized the expulsion of refugees for “commission of illegal acts” rather
than on public policy grounds.
195
Statement of Sir Leslie Brass of the United Kingdom, UN Doc. E/AC.32/SR.20, Feb. 1,
1950, at 14.

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 5.1 p rotection f ro m ex p uls ion 845

main objects of public order exclusion under Art. 32. Reference was made, for
example, to the right of states to expel a refugee who had committed larceny196
or trafficked in narcotics.197 But there was resistance to limiting the ground
only to concerns arising from criminality rather than incorporating the trad-
itional civil law notion of public order.198 In the view of most representatives,
a simple entitlement to expel refugees for the “commission of illegal acts”199
was both too broad, and too narrow.
It would have been too broad in that some criminal acts really do not pose
a serious risk to the peace and stability of the state:200 the Chairman of the Ad
196
In explaining why he preferred reference to persons who had committed criminal acts to
a proposal from the Chairman to replace “public order” by “public safety” expulsion, the
American representative noted that “in the United States of America, the term ‘public
safety’ was closely related to the term ‘national security,’ and could therefore not be made
to cover even such serious offences as larceny”: Statement of Mr. Henkin of the United
States, UN Doc. E/AC.32/SR.40, Aug. 22, 1950, at 20.
197
Replying to a Canadian concern, the Chairman of the Ad Hoc Committee insisted that
“the term ‘public order’ would certainly cover the deportation of aliens convicted under
the [Canadian] Opium and Narcotic Drugs Act. In view of the public injury which resulted
from traffic in drugs, there could be no possible objection to that interpretation”:
Statement of the Chairman, Mr. Larsen of Denmark, ibid. at 22. The Canadian preoccu-
pation was repeated at the Conference of Plenipotentiaries: Statement of Mr. Chance of
Canada, UN Doc. A/CONF.2/SR.14, July 10, 1951, at 18.
198
The British representative, for example, responded to a proposal for deletion of the
reference to “public order” in favor of “internal and external national security” by stating
that “neither the Chairman nor he himself could accept [that language], as they both had
criminal offences in mind”: Statement of Sir Leslie Brass of the United Kingdom, UN Doc.
E/AC.32/SR.20, Feb. 1, 1950, at 19. The IRO’s representative then “advised the Committee
that if it had in mind criminal offences, it should say so clearly”: Statement of Mr. Weis of
the International Refugee Organization, ibid. at 19. This led various delegations, including
those of Venezuela, Turkey, and Belgium, to insist that there was no need for additional
clarity, as the meaning of “public order” was not in doubt: Statements of Mr. Perez Perozo
of Venezuela, Mr. Kural of Turkey, and Mr. Cuvelier of Belgium: ibid.
199
Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.40, Aug. 22, 1950, at
19. In the view of the American representative, refugees “should be expelled only on the
grounds that they had committed crimes, which should be as explicitly defined as
possible”: Statement of Mr. Henkin of the United States, ibid. at 14.
200
“So far as his own government was concerned, ‘public order’ was directly related to the
maintenance of the peace and stability of the State”: Statement of Mr. Perez Perozo of
Venezuela, ibid. at 13. Grahl-Madsen suggests that the focus of public order exclusion on
grounds of criminality should be persons who have committed crimes which “are particu-
larly dangerous, because they demonstrate contempt for normal human and social values
or at least a clear antisocial or reckless attitude on the part of its perpetrators, e.g.
poisoning, arson. One may also have to draw a distinction between wilful and negligent
acts”: Grahl-Madsen, Commentary, at 214. In line with this approach, UNHCR has opined
that “the concept of ‘public order’ in Article 32 . . . does not automatically justify the
expulsion of a refugee who has committed or has been convicted of a crime, however
serious. The offence has to be sufficiently serious as to constitute a violation of public order
and, consequently, a separate finding is required to the effect that the continued presence
of the offender is prejudicial to the maintenance of [the] public order of the host State”:

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 846 5 ri g ht s of re f u g e e s l a w f u l l y p r e s e n t

Hoc Committee mentioned the case of a refugee convicted for “riding a bicycle
on a footpath” as an example of a “smaller illegal act”201 that could not justify
expulsion on public order grounds.202 The agreement reached on this point
calls into question the propriety of the American practice of expelling refugees
for having committed even minor crimes such as marijuana possession and
traffic offenses.203
On the other hand, it was thought that states ought to be allowed to expel
a refugee who had not engaged in criminal activity, but who refused to
conform his or her conduct to the basic manners and customs of the host
state. Mention was made, for example, of refugees who engaged in political
activism against the asylum country,204 though the American delegation
thought such concerns would have to amount to a threat to national security
before they justified expulsion.205 The Chinese representative, however,

UNHCR, “Observations on the proposed amendments to the Danish Aliens Act,” Oct. 31,
2016, at [10(ii)].
201
“It would be better to change the term ‘public order’ to ‘public safety,’ which was also
a vague term, and would fail to cover extreme cases on both sides, but would not, like the
wording proposed by the representative of the United States of America, cover both
extremes and permit the deportation of any refugee who had committed the smallest
illegal act”: Statement of the Chairman, Mr. Larsen of Denmark, UN Doc. E/AC.32/SR.40,
Aug. 22, 1950, at 19. This suggestion was rejected by the American delegate on the grounds
that some forms of criminal conduct which did not endanger public safety (e.g. larceny)
should nonetheless be grounds for expulsion: Statement of Mr. Henkin of the United
States, ibid. at 20.
202
“But just as a conviction does not . . . in itself justify expulsion, a criminal conviction
cannot be considered a condition sine qua non for expulsion”: Grahl-Madsen,
Commentary, at 217.
203
See text at note 20.
204
“[T]he political activity of a refugee might also be regarded as undesirable for reasons of
‘public order’”: Statement of Mr. Herment of Belgium, UN Doc. E/AC.32/SR.40, Aug. 22,
1950, at 11. More bluntly, the Venezuelan representative felt that the possibility of
expulsion on public order grounds “could be considered as a warning to refugees not to
indulge in political activities against the State. It was essential that the term should be
retained”: Statement of Mr. Perez Perozo of Venezuela, ibid. at 13.
205
“The representative of Venezuela, who had implied that ‘public order’ in his country
meant something related to national emergency, could feel assured that in the opinion of
the United States delegation, the requirements of national emergency were taken into
account in the term ‘national security’”: Statement of Mr. Henkin of the United States,
ibid. at 18. At the Conference of Plenipotentiaries, the delegate of the Netherlands also
opposed an understanding of public order expulsion based on “activities of a subversive
nature”: Statement of Baron van Boetzelaer of the Netherlands, UN Doc. A/CONF.2/
SR.14, July 10, 1951, at 23. By way of parallel, it is interesting that the New Zealand Court
of Appeal determined that “[i]t is also important that the interpretation of the term
‘danger to the security of the country’ takes account of a person’s right to freedom of
association and expression”: Attorney General v. Zaoui, [2005] 1 NZLR 690 (NZ CA, Sept.
30, 2004), at [151]; varied on other grounds in Attorney-General v. Zaoui, [2005] NZSC 38
(NZ SC, June 21, 2005).

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 5.1 p rotection f rom e xpulsion 847

offered a particularly striking example of what he viewed as a circumstance in

which it would be permissible to expel a refugee on public order grounds:
[T]he concept of public order was important to China where manners and
customs differed greatly from those of other countries, and also differed
from one region to another. He himself came from a mountainous area
where husbands were obliged to travel great distances to work, and were
able to visit their wives only once in three years. Wives generally remained
extremely faithful to their absent husbands, and if any one were to receive
a visit from a stranger it would cause a considerable sensation. The concept
of public order was important in relation to such peculiarities of circum-
stance and custom.206
This example was apparently welcomed by the French representative, who
“remarked that the observation of the representative of China showed what
different interpretations might be given to the notion of public order.”207 The
Chairman also stated that “there would be general agreement that, owing to
differences of custom, what would be a question of public order in one country
would not in another.”208 He offered the additional example of “illegal distilla-
tion of spirits, [which] was in some countries merely a fiscal problem, but in
others a problem of public order.”209
The various efforts to justify reliance on the traditional, civil law under-
standing of public order expulsion met with strong opposition from the
American representative, Mr. Henkin, who observed that “[h]is main fear
was that the term ‘public order’ might mean much more than what it appeared
to mean on the surface.”210 He worried that the right to expel a refugee based
on public order concerns was so vague that some states would undoubtedly
abuse this authority,211 a fear clearly held by the non-governmental commu-
nity as well.212 Henkin was blunt in asserting that the explanations provided of
the content of public order expulsion in civil law states “had not dispelled his

206
Statement of Mr. Cha of China, UN Doc. E/AC.32/SR.40, Aug. 22, 1950, at 24.
207
Statement of Mr. Juvigny of France, ibid.
208
Statement of the Chairman, Mr. Larsen of Denmark, ibid.
209
Statement of the Chairman, Mr. Larsen of Denmark, ibid.
210
Statement of Mr. Henkin of the United States, ibid. at 14.
211
“He was glad to hear that, vague though the concept of public order was, it was not liable to
abuse, at least in France, Belgium, and Venezuela. He would make no invidious remarks
about the possibility of a less liberal application of the term in other countries, but would
merely point to the importance of defining legal notions exactly in a legal instrument”:
Statement of Mr. Henkin of the United States, ibid. at 18.
212
“[T]he proviso contained in article [32] relating to ‘national security’ and especially that
relating to ‘public order’ seemed to his organization to be far too vague, and consequently
harmful to the interests of refugees . . . Moreover, the Commission on Human Rights had
on several occasions noted that the term ‘public order’ was vague and general and – as
indeed history testified – capable of serving as a justification for glaring abuse”: Statement
of Mr. Braun of Caritas International, UN Doc. A/CONF.2/SR.15, July 11, 1951, at 5.

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 848 5 r i g ht s o f re f u g e e s l a w f u l l y p r e s e n t

doubts, but had in fact increased them, because of the examples . . . given. It
seemed that the term ‘public order’ could be used as a pretext for getting rid of
any refugee on the ground that he was, for one reason or another, an undesir-
able person.”213 While representatives had asserted that there was a clear
meaning attached to “public order” in the civil law world,214 the American
representative was skeptical that there really was much agreement on the
substance of the concept outside a small number of European states.215 It
most certainly was a notion that had no resonance in common law states.216
Interestingly, the French delegation conceded the accuracy of much of
Mr. Henkin’s concern about the definition of “public order.” France “admitted
the contention of the United States representative that the notion of public
order might stir up unpleasant memories, since it was on that notion that
certain totalitarian States had based their claim to absolute discretionary
powers.”217 Moreover, while the civil law states of Europe could look to
detailed jurisprudential understandings of the term,218 “the expression ‘public
order’ was not interpreted in all countries in the same way . . . Consequently
the inclusion of that expression would not . . . restrict the right of expulsion to
any considerable extent.”219 Yet it was generally felt that the notion of public
order provided states with a necessary source of reassurance, and gave them

213
Statement of Mr. Henkin of the United States, ibid. at 12.
214
Typical of the bald assurances was the statement of the representative of the Netherlands
to the Conference of Plenipotentiaries, who “said that the term ordre publique was
acceptable to the Netherlands government as its meaning was perfectly clear”: Statement
of Baron van Boetzelaer of the Netherlands, UN Doc. A/CONF.2/SR.14, July 10, 1951,
at 23.
215
“[C]ontrary to the impression he had formed in earlier discussions in the Committee, the
term ‘public order,’ which in British and American law was more or less equivalent to
‘public policy,’ was not so understood in certain other countries”: Statement of
Mr. Henkin of the United States, ibid. at 18.
216
The American representative “confessed that his delegation still felt concern at the use of
the term ‘public order,’ partly because of its ambiguity, partly because it feared that it
embraced too much”: Statement of Mr. Henkin of the United States, ibid. at 11. At the
Conference of Plenipotentiaries, the Canadian delegate stated that his government “found
some difficulty with regard to the expression ‘public order,’ which was a term which had
a more precise legal connotation in continental countries than in common law countries”:
Statement of Mr. Chance of Canada, UN Doc. A/CONF.2/SR.14, July 10, 1951, at 18. Even
the British government, which had supported use of the ‘public order’ language at the Ad
Hoc Committee, took the position at the Conference that “the expression ‘public order’
presented definite difficulties to common law countries, where it did not possess the legal
connotation it bore in continental jurisprudence”: Statement of Mr. Hoare of the United
Kingdom, ibid. at 24.
217
Statement of Mr. Juvigny of France, UN Doc. E/AC.32/SR.40, Aug. 22, 1950, at 17.
218
“[A]n administrative and judicial case law had been developed such as enabled jurists and
even public opinion to know what was meant by ‘public order’”: Statement of Mr. Juvigny
of France, ibid. at 17–18.
219
Statement of Mr. Ordonneau of France, UN Doc. E/AC.32/SR.20, Feb. 1, 1950, at 18.

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 5.1 p rotection f rom e xpulsion 849

the flexibility required to accommodate their unique social concerns, as well as

to meet future contingencies.220 And in any event, the inclusion of a power to
expel on public order grounds was effectively a deal-breaker:
[Mr. Herment of Belgium] wondered whether the discussion was not
animated by a spirit of mistrust of Governments. After all, the States
which would sign and ratify the Convention would undoubtedly have
the intention of according reasonably favourable treatment to refugees.
He would like to urge that the long accepted notion of public order
should not be set aside . . . Powers of expulsion should be left to
Governments, even in cases the circumstances of which could not be
foreseen, since such might in fact arise. If that were not done, the article
would only be accepted with a number of reservations which would
deprive it of all value.221
The French representative was, if anything, even more candid. The civil law
states with a long tradition of expelling non-citizens on public order grounds
simply would not agree to be bound by a treaty that did not allow them to
continue these practices:
There were laws in existence in which threats or actions prejudicial to
public order were explicitly cited as grounds for expulsion. It was naturally
not the intention of the Committee that States should be required to alter
their legislation on so important a subject, especially at the present time.
Accordingly, whatever formula was adopted, the notion of public order
would inevitably raise its head in those code law countries where it was
traditionally accepted. Any other formula the Committee might endeav-
our to evolve would therefore run the risk of proving illusory.222
In the end, those who opposed the “public order” clause appear simply to
have given in to the impossibility of persuading civil law states to abandon their
traditional attachment to public order expulsion.223 Yet it is equally clear that
220
“There might possibly – though he hoped not – be countries where it was considered to be
a man’s private affair if he chose to poison himself with drugs. It would be impossible
therefore to define precisely questions of public order for all countries”: Statement of the
Chairman, Mr. Larsen of Denmark, UN Doc. E/AC.32/SR.40, Aug. 22, 1950, at 25.
221
Statement of Mr. Herment of Belgium, ibid. at 20.
222
Statement of Mr. Juvigny of France, ibid. at 21.
223
“[S]ince it appeared that in certain countries there was a provision of law that an alien
could be expelled on grounds of public order, the only solution to the present difficulties of
the Committee would be to retain the present text . . . and perhaps add thereto a number of
specific exclusions, stating, for example, that a refugee might not be expelled on grounds of
indigency or ill health”: Statement of Mr. Henkin of the United States, ibid. at 21. As Davy
notes, “[f]rom the perspective of their differing legal traditions, the American quest for
clarity as well as the resistance of the European countries are both understandable: the
American delegation was used to immigration laws meticulously enumerating certain
classes of excludable and deportable aliens. The delegations of the French-speaking
countries, on the other hand, were used to brief statutory provisions based on broad

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 850 5 r i g h t s of re f u g e e s l a wf u l l y p r e s e n t

the right to expel a refugee based on public order concerns was intended to be
conservatively invoked. Not only did the drafters reject Australia’s proposal to
amend the English-language version of Art. 32 in order to refer to the broader
notion of “public policy”224 – which the Secretariat made clear was the real
equivalent of the traditional, broad-ranging civil law notion of “ordre
public”225 – but in a spirit of compromise, there was general agreement that
public order should be given a narrow interpretation,226 with the travaux
préparatoires serving as a definitive point of reference for state parties in
interpreting their authority to expel refugees on public order grounds.227

and vague language, leaving expulsion basically to the discretion of the administrative
authorities in charge”: Davy, “Article 32,” at 1288.
224
Statement of Mr. Shaw of Australia, UN Doc. A/CONF.2/SR.14, July 10, 1951, at 22.
225
As such, when Ireland acceded to the Convention in 1956, it quite rightly felt the need to
enter a formal understanding that it “understands the words ‘public order’ in article
32(1) . . . to mean . . . ‘public policy’” in order to avoid the strictures on its expulsion
authority otherwise implied by the narrower notion of “public order”: https://treaties.un
.org, accessed Dec. 21, 2020. “In civil law countries, the concept of ‘l’ordre public’ is
a fundamental legal notion used principally as a basis for negating or restricting private
agreements, the exercise of police power, or the application of foreign law. The common
law counterpart of ‘l’ordre public’ is not ‘public order,’ but rather ‘public policy.’ It is this
concept which is employed in common law countries to invalidate or limit private
agreements of the application of law. In contrast to this concept of public policy, the
English expression ‘public order’ is not a recognized legal concept. In its ordinary English
sense, it would presumably mean merely the absence of public disorder. This notion is
obviously far removed from the concept of ‘l’ordre public’ or ‘public policy’”: UN Doc. E/
L.68, tabled at the Conference of Plenipotentiaries by its Executive Secretary, UN Doc. A/
CONF.2/SR.14, July 10, 1951, at 19–20.
226
Mr. Robinson of Israel made the point that “it had to be remembered that considerations
of national security and public order were interpreted differently in different countries. In
the sense of a narrow interpretation, however, there could be no argument in favour of
treating refugees differently from other aliens”: Statement of Mr. Robinson of Israel, ibid.
at 16. His speech was hailed by the French representative as a “brilliant statement”:
Statement of Mr. Juvigny of France, ibid. at 17. Interestingly, Davy’s analysis of relevant
jurisprudence concludes that “when domestic courts are asked to interpret domestic
provisions implementing the concept of [public order] . . . the answers are less colourful
and diverse than one would expect,” focused mainly on persons convicted of serious
crimes: Davy, “Article 32,” at 1311. She concludes “that the vagueness of the term is
a concern for academics, not for practitioners in immigration law”: ibid. at 1312.
227
At the first session of the Ad Hoc Committee, the Belgian representative “asked that the
discussion should be recorded in the summary record of the meeting so as to make clear
what the Committee understood by the concept of public order”: Statement of
Mr. Cuvelier of Belgium, UN Doc. E/AC.32/SR.20, Feb. 1, 1950, at 19. Similarly, at the
Conference of Plenipotentiaries, the British representative noted that “if any difficulty
occurred as to the meaning of [‘public order’], it would presumably arise in connexion
with some specific case and the court concerned would have the records of the proceedings
leading up to the adoption of the Convention. It would therefore be in a position to
ascertain the interpretation placed on those words”: Statement of Mr. Hoare of the United
Kingdom, UN Doc. A/CONF.2/SR.14, July 10, 1951, at 24.

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 5 .1 p r o te c ti o n f r o m e xp u l s i o n 851

Of particular importance in this regard, it was agreed that basic affronts to

public morality or social norms of the asylum country228 are to be deemed
grounds for expulsion only in truly grave cases.229 In Grahl-Madsen’s words,
“it was obviously the intention of the drafters that expulsion should only be
resorted to where the continued presence of the refugee would to some extent
upset the very equilibrium of society.”230
Most specifically, there is no doubt that an effort to expel a refugee on
grounds of poverty or ill health – matters felt by some to fall within the
traditional civil law ordre public expulsion authority – cannot be reconciled
to the requirements of the Convention.231 At the first session of the Ad Hoc
Committee, the Danish representative insisted that it must be clear that “social
considerations, such as destitution, should not come under the heading of
public order.”232 Mr. Cuvelier of Belgium agreed, explaining that “it was
naturally impossible to expel a refugee for economic reasons, as in the case
of destitution he could not be returned to his country of origin as could an
ordinary emigrant.”233 The rationale for a distinctive approach to the expul-
sion of refugees was eloquently explained by the Israeli representative:

228
While an Egyptian draft which made specific reference to expulsion on grounds of “public
morals” was not pursued (UN Doc. A/CONF.2/44), and the representative of the
Netherlands voiced his concern with any refugee expulsion predicated on moral concerns
(Statement of Baron van Boetzelaer of the Netherlands, UN Doc. A/CONF.2/SR.14,
July 10, 1951, at 23), the British representative to the Conference of Plenipotentiaries
affirmed that “the United Kingdom had accepted the words ‘public order’ in international
instruments, while making a reservation that they were deemed to include matters relating
to crime and public morals. That interpretation had not so far been challenged”: Statement
of Mr. Hoare of the United Kingdom, ibid. at 24.
229
“States would have to undertake not to resort to the ultima ratio of expulsion except for
very grave reasons, namely, actions endangering national security or public order. Thus
the refugee would be protected both in the matter of procedure and in that of grounds,
which was not the least important consideration”: Statement of Mr. Robinson of Israel,
UN Doc. E/AC.32/SR.20, Feb. 1, 1950, at 10.
230
Grahl-Madsen, Commentary, at 209.
231
As Grahl-Madsen notes, “[t]he drafters . . . were on the whole keenly aware of the
vagueness of the term ‘public order’ in general. However, they expressed clearly their
desire to delimit[] the meaning of the term as used in Article 32. Mr. Rochefort’s emphatic
statement in the Conference of Plenipotentiaries, to the effect that it would not be
worthwhile to take part in the work of the Conference if it were not clear that ‘public
order’ could not justify expulsion of indigent refugees [see text at note 242] is clear proof
that [it was] desired to give the term a technical meaning, without regard to the interpret-
ation given the term in the municipal law of various countries”: ibid. at 205. Davy thus
sensibly concludes that public order concerns do “not come into play when the individuals
concerned [are] sick, unemployed, or poor, and thus in need of social assistance or other
social benefits”: Davy, “Article 32,” at 1311.
232
Statement of Mr. Larsen of Denmark, UN Doc. E/AC.32/SR.20, Feb. 1, 1950, at 16.
233
Statement of Mr. Cuvelier of Belgium, ibid.

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 852 5 r i g h t s of r ef u g e e s l a wf u l l y p r e s e n t

If refugees were not nationals in the political sense of the country where
they were resident, however, they were in a moral sense . . . [C]ountries
should accept refugees as human beings, with all the infirmities and
weaknesses inherent in the human condition.234
All the members of the Ad Hoc Committee who spoke to the question agreed
with the view that no refugee should ever be expelled “on grounds of indigency
or ill health.”235 But because of concern that a formal limitation to this effect in
Art. 32 could encourage states to take an aggressive attitude toward forms of
public order expulsion not expressly disallowed,236 it was decided simply to
note this implied limitation in the Committee’s report.237
The importance of protecting refugees from public order expulsion on social
grounds was emphasized again at the Conference of Plenipotentiaries. Every
attempt to assert the propriety of public order expulsion by reason of ill health
or poverty was soundly denounced by, in particular, the French representative. An
Egyptian amendment that would have authorized the expulsion of a refugee
“because he is indigent and is a charge on the State”238 led Mr. Rochefort to assert
that “[p]overty was not a vice, and indigence could not be considered a crime.”239
234
Statement of Mr. Robinson of Israel, UN Doc. E/AC.32/SR.40, Aug. 22, 1950, at 16.
235
Statement of Mr. Henkin of the United States, ibid. at 21. See also Statement of Mr. Juvigny
of France, ibid.; Statement of Sir Leslie Brass of the United Kingdom, ibid. at 23; and
Statement of Mr. Giraud of the Secretariat, ibid. at 26.
236
“If . . . a country really had the intention of expelling refugees because, by reason of their state
of health, for instance, they were a burden on the public purse, such a country would of
necessity be obliged, when ratifying the Convention, to make reservations with regard to
article [32] . . . [H]e considered that however vague the notion of public order might be, it . . .
offer[ed] greater safeguards for refugees than would be given by a hastily drafted formula
which would not cover all possible cases and which, moreover, would lend itself to interpret-
ation a contrario”: Statement of Mr. Juvigny of France, ibid. at 22. See also Statement of the
Chairman, Mr. Larsen of Denmark, ibid. at 26, who expressed his concern “that the
Committee might be considering the inclusion in an international convention of
a provision which appeared to suggest that ‘social reasons’ were a question of public order.”
237
“[S]ince there was obvious agreement that ‘social reasons’ should not be grounds [for]
expulsion, the only question which remained was whether to provide specifically for such
exclusion, or to let the records of the Committee indicate that interpretation of ‘public order.’
He felt that the Drafting Committee should take that decision”: Statement of Mr. Henkin of
the United States, ibid. at 26. With the proposal for an explicit reservation defeated on a 5–2 (4
abstentions) vote (ibid. at 27), the Committee’s report stipulated that “[t]he phrase ‘public
order’ would not . . . permit the deportation of aliens on ‘social grounds’ such as indigence or
illness”: Ad Hoc Committee, “Second Session Report,” at 13.
238
UN Doc. A/CONF.2/44.
239
Statement of Mr. Rochefort of France, UN Doc. A/CONF.2/SR.14, July 10, 1951, at 21. See
also the remarks of Baron van Boetzelaer of the Netherlands, ibid. at 23: “He hoped the
Conference would not adopt the Egyptian amendment which introduced somewhat
indefinite concepts . . . He feared the adoption of such an amendment would excessively
restrict the freedom of refugees.” (In addition to its provisions on expulsion for reasons of
indigence, the Egyptian amendment would have authorized expulsion on grounds of, for
example, subversion, public morality, and health.)

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 5.1 protection f rom e xpulsi on 853

The Egyptian proposal was swiftly withdrawn.240 The Canadian government’s

rather apologetic effort to safeguard its domestic laws authorizing the discretion-
ary expulsion of refugees who became public charges or who were committed to
psychiatric institutions241 prompted a similarly emphatic rebuke:
The French delegation could not admit that the indigence of a refugee could
constitute one of those reasons [for expulsion], and, if the idea of indigence
was to be interpreted as a factor detrimental to public order, would no
longer consider it worthwhile to take part in the work of the Conference. In
France, indeed, refugees and persons who were a charge on the State were
frequently synonymous terms. Tens of thousands of people were in receipt
of assistance of that kind . . . If there was neither the desire nor the courage
on the part of governments to embark upon the legislative changes required
by the application of the Convention, it seemed pointless to draft it.242
Canada, like Egypt, readily conceded the force of the French government’s
argument.243 Undeterred, the Australian delegate insisted that states should be
allowed to expel refugees “for instance, when the alien became an inmate of
a charitable institution or a mental asylum.”244 Once more, the French represen-
tative replied caustically that “the fact that a refugee was penniless should most
certainly not constitute one of the reasons which . . . would justify the expulsion of
a refugee; on the contrary, the French Government felt it was a fundamental
reason for showing greater leniency.”245 Australia did not press its point.
In the end, there was a general recognition that sanctioning a right to expel
refugees on grounds of poverty would create a vicious circle that could deter
a state party from meeting its duty to provide refugees with basic social
assistance.246 Taking account of the prevailing view that not even aliens in general

240
The Egyptian representative “noted with regret that his amendment did not seem to
command general support . . . He therefore withdrew it”: Statement of Mr. Mostafa of
Egypt, ibid. at 25.
241
“In all frankness, however, he must state that Canadian law – and probably the laws of
other countries too – provided in . . . discretionary clauses for deportation on the grounds
that the person concerned had become a public charge or was an inmate of a mental
asylum or a public charitable institution”: Statement of Mr. Chance of Canada, UN Doc.
A/CONF.2/SR.15, July 11, 1951, at 8.
242
Statement of Mr. Rochefort of France, ibid. at 8–9.
243
The Canadian representative “heartily endorsed the French view that expulsion on the
grounds of indigency alone would be entirely out of keeping with the ideals and hopes
entertained by the Conference. He had merely pointed out how difficult it would be to
amend the relevant Canadian legislation, and could only repeat that he could conceive of
no circumstances in which the Canadian authorities would expel a refugee on grounds of
indigency alone”: Statement of Mr. Chance of Canada, ibid. at 9.
244
Statement of Mr. Shaw of Australia, ibid. at 11.
245
Statement of Mr. Rochefort of France, ibid. at 11.
246
The French representative “apologized if he had expressed himself too forcefully; but he
nevertheless wished to emphasize that the French delegation had no intention of conclud-
ing a one-sided bargain which, for the French Government, would mean the assumption

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 854 5 r i g h t s of re f u g e e s l a wf u l l y p r e s e n t

should be expelled on grounds of indigence247 and of the legal obligation to meet

at least the basic needs of refugees,248 the British representative aptly concluded
that “[t]he discussion had been useful in making it clear that the words ‘public
order’ could not be construed as including mere indigency.”249
Even if the drafters had not been clear that a conservative understanding of the
public order basis for expulsion should govern, modern European understandings
of public order have in any event evolved in a comparably restrictive fashion. Most
important, it is now clear that the mere commission of a crime without additional
evidence of a fundamental threat is not grounds for expulsion.250 Rather, as the
Court of Justice of the European Union determined, a risk to ordre public
presupposes, in any event, the existence, in addition to the perturbation of
the social order which any infringement of the law involves, of a genuine,
present and sufficiently serious threat affecting one of the fundamental
interests of society [emphasis added].251

of multilateral obligations with respect to countries the legislation of which would not
grant refugees rights equivalent to those which the French Government would undertake
to guarantee them upon signing the Convention. It was by no means a theoretical
consideration, since France very frequently had to take in refugees who had been expelled
from other countries simply because they were penniless, or possibly, stateless”: Statement
of Mr. Rochefort of France, ibid. at 12. This led the Canadian delegate to reply that he
“regretted that he had caused so much trouble”: Statement of Mr. Chance of Canada, ibid.
247
The President referred to resolutions of the Economic and Social Council which recom-
mended against expulsion based on indigency: Statement of the President, Mr. Larsen of
Denmark, ibid. at 9–10.
248
See Chapters 4.4 and 6.3.
249
Statement of Mr. Hoare of the United Kingdom, UN Doc. A/CONF.2/SR.15, July 11, 1951, at
10. One possible exception, noted by Grahl-Madsen, is the situation where a refugee sets out
explicitly to make himself or herself a public charge. “The refugee who is able to work and still
continually refuses to do so with the clear intent of living off public funds may, under certain
circumstances, set such a bad example that it might seem necessary to apply sanctions of some
kind or another. But it goes without saying that the situation must be nothing short of
extraordinary in order to justify the invoking of public order – as understood in the Refugee
Convention – in such a case”: Grahl-Madsen, Commentary, at 211.
250
Belgium, for example, insisted that only refugees “convicted of a fairly serious offence” should
be subject to public order expulsion: Statement of Mr. Herment of Belgium, UN Doc. E/
AC.32/SR.40, Aug. 22, 1950, at 11. Most important, the report of the second session of the Ad
Hoc Committee records the view that Art. 32 “would permit the deportation of aliens who
had been convicted of certain serious crimes where in that country such crimes are considered
violations of ‘public order’”: Ad Hoc Committee, “Second Session Report,” at 13. See also
details of the objections voiced to the American proposal which would have allowed for the
expulsion of refugees who had committed any criminal act: text at notes 198–203. Grahl-
Madsen helpfully concludes that “only where normal punishment could not save the main-
tenance of public order or help to restore it would one resort to the measure of expulsion”:
Grahl-Madsen, Commentary, at 208.
251
HT v. Land Baden-Württemberg, Dec. No. C-373/13 (CJEU, June 24, 2015), at [79]; JN
v. Netherlands, Dec. No. C-601/15 PPU (CJEU, Feb. 15, 2016), at [65]; K v. Netherlands,
Dec. No. C-331/16 (CJEU, May 2, 2018), at [41].

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 5.1 protection f rom e xpulsi on 855

This understanding that there needs to be a “genuine” threat to “one of the

fundamental interests of society” makes clear why Zambia was not entitled to
expel the refugees protesting government corruption at the Meheba camp.252
Not only would it be extremely difficult to show that the protest posed
a sufficiently grave social risk, but there is surely nothing “genuine” about
a perceived threat arising only from the expelling government’s unhappiness
about its corrupt practices having been exposed.
Just how salient must the reasons of national security or public order be in
order to justify the expulsion of a refugee? The Secretary-General’s draft of Art.
32 recommended the standard from the 1933 Refugee Convention, namely
that expulsion be “dictated by” reasons of national security or public order.253
The alternative formulation proposed by the Agudas Israel World
Organization, which was selected as the Ad Hoc Committee’s working
draft,254 used what may on first impression appear to be less demanding
language: “save on” grounds of national security.255 It is the latter formulation
(“save on”) that was adopted.256 Yet both Grahl-Madsen257 and Stenberg258
take the view that there is no reason to suggest that the use of this form of
words was intended to deviate from the traditional understanding that the host
state must show some imperative or genuine necessity for expulsion, rather
than simply that there is a plausible case for removal on grounds of national
security or public order.

252
See text at note 35. 253 Secretary-General, “Memorandum,” at 45.
254
See text at note 130.
255
As previously described (see text at note 130), the recommendation of the Agudas Israel
World Organization was that the expulsion of refugees be subject to either procedural or
substantive limitations. The latter option provided that a refugee could not be expelled
“save on grounds of national security”: “Communication from the Agudas Israel World
Organization,” UN Doc. E/C.2/242, Feb. 1, 1950, at [2].
256
Given the history of the drafting of Art. 32, it is probable that when the Chairman of the
Ad Hoc Committee recommended what became the final language of Art. 32 (“save on
grounds of national security or public order”: Statement of the Chairman, Mr. Chance of
Canada, UN Doc. E/AC.32/SR.20, Feb. 1, 1950, at 17) he was simply following the
phrasing of the Agudas draft from which the Committee had been working, and which
had not been said to posit any shift from traditional evidentiary standards.
257
“[T]here was hardly any intention behind the change of wording. And in view of the
meaning of the terms ‘national security’ and ‘public order,’ it seems possible to submit that
the change of wording has not caused any change of meaning. If the concepts of national
security and public order are to be understood in the sense that they imply a public
necessity to rid oneself of the objectionable person, it is clear that it does not make any
difference whether one uses the words ‘dictated by’ or simply says ‘on grounds of’”: Grahl-
Madsen, Commentary, at 199.
258
“The words ‘are dictated by’ in the 1933 Convention serve, much more than the corres-
ponding wording of Article 32(1) of the 1951 Convention, to stress the ultima ratio
character of the exceptions. Nevertheless, it is quite clear, on the basis of the preparatory
work of the 1951 Convention, that the change of wording in Article 32(1) was not
intentional”: Stenberg, Non-expulsion, at 132.

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In any event, the words “save on” surely imply an evidentiary imperative,
albeit one that might be thought somewhat less demanding than the “dictated
by” alternative. As Grahl-Madsen observes, under Art. 32(1) “expulsion is not
justified unless it will have a salutary effect with regard to [national security or
public order]. It is not something to which one [should] resort lightly, but
rather . . . one must consider whether the measure will serve its end – in other
words, that it is necessary.”259 In line with modern understandings of necessity,
Davy thus sensibly calls for a proportionality analysis to give effect to the fact
that “the delegates consistently thought of weighty reasons justifying
expulsion.”260 These interpretations are in line with the view of UNHCR’s
Executive Committee that “expulsion measures against a refugee should only
be taken in very exceptional circumstances and after due consideration of all
the circumstances.”261

5.1.5 Right to Non-coercive Departure

Even if a determination is made that reasons of national security or public
order require a refugee’s expulsion, it does not follow that the host state may
immediately effect the refugee’s removal. First and most critically, the safe-
guards against refoulement described above continue to apply unless the more
exacting standards of Art. 33(2) for removal to a country where there is a risk of
being persecuted have been met.262 While this constraint is unlikely to pose
a difficulty in national security cases,263 the combined effect of Arts. 33(2) and
32 is that all but the most egregious forms of public order expulsion are
effectively proscribed unless removal can be effected to a non-persecutory
state.264 Because it is ordinarily only the refugee’s country of origin (in which

259
Grahl-Madsen, Commentary, at 200. 260 Davy, “Article 32,” at 1312.
261
UNHCR Executive Committee Conclusion No. 7, “Expulsion” (1977), at [(c)].
262
See text at note 46 ff. Indeed, the French representative to the Ad Hoc Committee
remarked that the provisions of what became Art. 32(3), allowing refugees subject to
expulsion a reasonable period within which to identify a state willing to accept them, were
a useful practical means of meeting the duty of non-refoulement in such circumstances. “It
had, in fact, been agreed that a refugee could not be sent back to a country where his life
would be threatened. But a refugee who had been expelled from one country had little
chance of being admitted elsewhere”: Statement of Mr. Ordonneau of France, UN Doc. E/
AC.32/SR.20, Feb. 1, 1950, at 21.
263
This is because Art. 33(2) authorizes particularized refoulement in the case of a refugee
“whom there are reasonable grounds for regarding as a danger to the security of the
country in which he is,” a test which is essentially indistinguishable from Art. 32’s
authorization for the expulsion of a refugee “on grounds of national security” so long as
due process norms are respected (including the substantive due process norm prohibiting
unreasonable or arbitrary action). See Chapter 4.1.4 at note 511.
264
This is because Art. 33(2), unlike Art. 32(1), does not allow particularized refoulement on
grounds of public order per se. Only a subset of public order concerns – namely, those
relating to a person who “having been convicted by a final judgment of a particularly

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 5.1 pr o t e c t i o n f r o m ex p u l s i o n 857

the risk of being persecuted exists) to which return may be effected as of right,
the ability to expel a refugee found to pose a lesser public order risk may
therefore be foreclosed as a practical matter.265
Second, in line with the position that the expulsion of a refugee must clearly
be a matter of final recourse, Art. 32(3) expressly requires the state contem-
plating expulsion to grant the refugee a “reasonable” reprieve for purposes of
organizing his or her own admission to some other (presumably safe) country.
This provision is innovative in two ways. In contrast to earlier conventions, it
imposes a duty on state parties to delay expulsion while the refugee pursues his
or her own options, rather than simply acknowledging the logic of delay.266 In
addition, while the Secretary-General’s draft had predicated the right to secure
a delay of expulsion solely on non-receipt of the authorizations or visas needed
to enter another country,267 Art. 32(3) as adopted is not limited in this way.268
Its broader scope is rather intended to recognize that even when permission to
enter another state has been received, an additional delay in departure may be
required to take account of compelling personal reasons, such as “a pregnant
wife or a sick child.”269 Thus, as Davy suggests,

serious crime, constitutes a danger to the community of [the host] country” – is a basis for
refoulement. See Chapter 4.1.4 at note 542 ff.
265
See Weis, Travaux, at 323: “No expulsion order may be carried out unless another country
is willing to admit [the] refugee.”
266
The Belgian representative had observed that the wording proposed by the Secretary-
General “afforded no guarantee to refugees, and left governments free to act as they
pleased, in so far as the refugees were concerned”: Statement of Mr. Cuvelier of
Belgium, UN Doc. E/AC.32/SR.20, Feb. 1, 1950, at 22. The final wording of the paragraph
as ultimately adopted was proposed by the American representative to the Ad Hoc
Committee who “asked whether the Committee thought it advisable to include in article
[32] certain words which, without placing any obligation on the High Contracting Parties,
would express the hope that any refugee . . . would have the opportunity of trying to obtain
legal admission into another country before the expulsion order was put into effect”:
Statement of Mr. Henkin of the United States, ibid. at 23. The proposal which Mr. Henkin
then drafted (UN Doc. E/AC.32/L.23) actually went farther, using the mandatory form
“shall” to define the duty to allow a refugee to seek admission to another state. The
approach advocated by the Secretary-General’s draft had provided simply for the right
of states to impose constraints on refugees allowed to remain in the country while
exploring options to expulsion. See Secretary-General, “Memorandum,” at 45.
267
The relevant part of the draft defined the beneficiary class as refugees “who are unable to
leave its territory because they have not received, at their request or through the interven-
tion of Governments or through the High Commissioner for Refugees or nongovernmen-
tal agencies, the necessary authorizations and visas permitting them legally to proceed to
another country”: Secretary-General, “Memorandum,” at 45.
268
The Danish and French representatives took the view that this limitation was superfluous:
Statements of Mr. Larsen of Denmark and Mr. Ordonneau of France, UN Doc. E/AC.32/
SR.20, Feb. 1, 1950, at 21.
269
Statement of Mr. Larsen of Denmark, ibid.

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Reasonableness is primarily to be judged against the conditions and

prospects for gaining admission to another country . . . [R]easonableness
mostly depends on three questions: Within what timeframes can the
applicants realistically expect to get an answer from the authorities of
other States? How many applications are they allowed to launch? Are
there any personal circumstances militating against a speedy departure?270
In line with this formulation, Art. 32(3) should be interpreted in light of its
primary purpose to enable refugees to pursue non-coercive departure
options.271 Thus, the American drafter of the paragraph readily conceded the
logic of the British representative’s point that states were under no obligation
to grant refugees a stay of expulsion if the refugee had already sought and
secured valid documentation for entry into a safe country to which expulsion
could be effected.272 Nor is there a duty to grant refugees such a prolonged
delay that their travel documents expire, making their expulsion a practical
impossibility.273
During a delay in effecting expulsion, state parties may “apply . . . such
internal measures as they deem necessary.”274 It is clear that the drafters were

270
Davy, “Article 32,” at 1322.
271
“Art. 32 obliges States to respect preferences and arrangements brokered by the individual
[refugee] concerned: refugees under an order of expulsion must be allowed to avoid
forcible removal by searching for, and possibly, securing their admission into another
country”: ibid. at 1282.
272
The British representative had expressed his concern that “the wording of the
proposed new paragraph was slightly too sweeping. For example, in some cases
when a refugee left a country it had been agreed that he could return if he wished
within a certain time limit. If the country where he went decided to expel him and
had to allow a ‘reasonable period’ to elapse before enforcing that decision, the time
limit within which he was allowed to return to the first country might have expired in
the interval”: Statement of Sir Leslie Brass of the United Kingdom, UN Doc. E/AC.32/
SR.21, Feb. 2, 1950, at 3. The American representative replied succinctly that “when
there was a country prepared to admit the refugee, it would be unnecessary to grant
him a reasonable period within which to seek legal admission”: Statement of
Mr. Henkin of the United States, ibid.
273
“It was obvious that if the travel document of a refugee returnable to another country had
almost expired, he could not be given the same opportunity to find another country willing
to receive him as a refugee whose travel document was still valid for a considerable
period”: Statement of Sir Leslie Brass of the United Kingdom, UN Doc. E/AC.32/SR.40,
Aug. 22, 1950, at 30.
274
States are granted a substantial margin of appreciation in deciding what internal
measures should be taken. “The second sentence of para. 3 is less liberal than Art.
31, para. 2, first sentence: the former speaks of measures as ‘they may deem
necessary’ . . . while the latter mentions measures ‘which are necessary’ . . . The
difference is in the subjective appraisal of the measures: in the case of Art. 31, they
must appear to be necessary to an objective observer . . . [Under] Art. 32, it suffices if
the competent authorities consider them to be required”: N. Robinson, Convention
relating to the Status of Refugees: Its History, Contents and Interpretation (1953)
(Robinson, History), at 159–160.

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 5.1 p rotection f ro m ex p uls ion 859

of the view that such measures might include detention.275 But since a refugee
availing himself or herself of the limited rights set by Art. 32(3) “may, for at
least some time, be considered to be ‘lawfully in’ the territory of the host
country,”276 constraints would be lawful only if aliens generally in the same
circumstances would have their freedom of movement comparably con-
strained; under Art. 26 of the Refugee Convention, no refugee-specific con-
straints on freedom of movement may be imposed.277 More generally, Art.
32(3) would be contravened if the constraints imposed would effectively negate
the refugee’s ability to pursue his or her applications for onward travel as an
alternative to expulsion.278
To summarize, Art. 32 is a supplement to the protection against refoulement
set by Art. 33. It is intended to limit the right of states to expel refugees to even
non-persecutory states on both procedural and substantive grounds. At
a procedural level, the expulsion of a refugee may be ordered by an adminis-
trative agency, but the refugee must be guaranteed the right to appeal that
decision to an authority of some seniority which has the power to consider all
the circumstances of the case, including the refugee’s special vulnerabilities
and rights, and to issue an authoritative decision governing expulsion. The
appeal must moreover be conducted in line with norms of due process,
including both the requirements of procedural fairness and substantive pro-
tections against a result not based on law, not related to the true objects of Art.
32, or which is otherwise unreasonable, arbitrary, or capricious. Even where
compelling reasons of national security are demonstrated, only some due
process rights – to submit evidence, to appeal, or to be represented – may be
constrained, and even then only to the extent truly necessary.
Substantively, the expulsion of a refugee is lawful only if shown to be
required by considerations of national security or public order. Expulsion on
the basis of national security requires the host state to show an objective,
reasonable possibility that the refugee’s actions or presence expose the host

275
The Chairman of the Ad Hoc Committee expressed his worry that “temporary detention
might constitute a punitive measure for deported refugees who could not proceed
elsewhere”: Statement of the Chairman, Mr. Chance of Canada, UN Doc. E/AC.32/
SR.20, Feb. 1, 1950, at 22. The representative of the IRO pointedly responded “that
a refugee would not regard a period in prison or in an internment camp as a punitive
measure, as he might otherwise run the risk of being sent back to a country where his life
would be threatened”: Statement of Mr. Weis of the International Refugee Organization,
ibid. While Mr. Weis’ assertion is not legally correct in view of the continuing force of Art.
33, his essential point – that detention while arranging a preferred departure option is
likely to be seen by a refugee as preferable to expulsion – is nonetheless sound.
276
Davy, “Article 32,” at 1324. 277 See Chapter 5.2.
278
Robinson notes that the restrictions “cannot be of such nature as to make it impossible for
the refugee to secure admission elsewhere because the Convention considers expulsion
a measure to be taken only if the refugee is unable to leave the country on his own motion”:
Robinson, History, at 160.

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 860 5 ri g ht s of re f u g e es l a w f u l l y p r e s e nt

state to the risk of direct or indirect substantial harm to its most basic interests.
This test would be met, for example, where there is a real risk of an armed
attack on that state’s territory or its citizens, or of the destruction of its essential
democratic institutions. Expulsion may also be based on public order con-
cerns – a term of art not synonymous with the wide-ranging historical civil law
notion of ordre public. Under the Refugee Convention, relevant public order
concerns are those which bespeak a threat to the internal security of the host
country. Public order concerns may be based, for example, on the fact that
a refugee poses an ongoing threat because he or she has committed a serious
crime or is a recidivist, or that he or she has engaged in activity which amounts
to a truly grave affront to public morality or social norms. But social concerns
such as poverty or ill health are not to be invoked as public order grounds to
expel a refugee.
Ultimately, even a refugee found amenable to expulsion may not be imme-
diately removed: if he or she wishes an opportunity to organize onward
movement, a reasonable reprieve must be granted to enable the refugee to
make the necessary arrangements.

5.2 Freedom of Residence and Internal Movement

The range of constraints on freedom of movement to which refugees may be
subjected immediately upon arrival in any asylum state has been addressed in
Chapter 4.279 Detention upon arrival is particularly common in the case of
refugees who come as part of a mass influx.280 In addition, governments
sometimes provisionally detain arriving refugee claimants believed to pose
a risk to their own safety or security, whose identity is unclear, or who have yet
to provide authorities with the basic information needed in order to begin the
process of verifying their claim to refugee status.
The focus in this section is instead on limitations on freedom of residence
and internal movement that may be imposed not at the moment of arrival, but
rather once the refugee is admitted to procedure to verify his or her refugee
status, is granted some form of time-limited permission to stay in the host
state, or – as in many less developed countries – is simply allowed to remain.
Despite the explicit or tacit authorization granted to stay in the reception
country in each of these circumstances, limits on the right to decide where to
live or on internal travel are still at times imposed. Indeed, so pervasive is the
belief that refugees may lawfully be confined away from local populations that
279
See Chapter 4.2.4.
280
Regrettably, however, “[c]amps that were initially set up as temporary responses to mass
influx often evolve into permanent settlements, where new refugees are also expected to
live”: N. Maple, “Rights at Risk: A Thematic Investigation into how States Restrict the
Freedom of Movement of Refugees on the African Continent,” UNHCR: Research Paper
No. 281, Oct. 2016 (Maple, “Rights at Risk”), at 2.

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 5.2 f r e e d o m o f r e s i d e n c e an d i n t e r n a l m o v e m en t 861

outrage has at times been expressed when refugees seek even a modicum of
mobility. For example, the US President described the practice of releasing
refugees and other non-citizens from detention pending court proceedings as
“ridiculous. If they touch our property, if they touch our country, essentially,
you catch them and you release them into our country. That’s not acceptable to
anybody.”281
In the result, some developed countries – including both the United
States282 and Australia283 – routinely continue the imprisonment of many
refugees even after they have complied with all formalities required to investi-
gate their claims to protection. Refugees submitting their claims in Ceuta and
Melilla have been detained even after passing the admissibility phase, some-
times for years, despite the Spanish courts’ rejection of that policy.284 Refugees
arriving in Hungary have been confined to converted shipping containers for
the duration of the status determination process, including appeals.285
In many parts of the less developed world, even long-staying refugees may
be indefinitely confined to camps. Kenya and Sudan, for example, generally

281
J. Timm, “Fact Check: Trump’s Misleading Claims about ‘Catch and Release,’” NBC News,
May 2, 2018.
282
See Chapter 4.2 at note 876. The 2004 Intelligence Reform and Terrorist Prevention Act
“authorized the construction of approximately 40,000 additional detention bed spaces . . .
[A]sylum seekers will almost inevitably remain in a US detention facility awaiting
a credible fear interview and final adjudication of their claims”: V. Woodman de Lazo,
“The Morton Memo and Asylum Seekers: An Overview of the US Mandatory Detention
Policy,” (2013–2014) 48 New England Law Review 775, at 782–783.
283
See Chapter 4.2 at note 867. The Australian practice of holding refugee claimants indefi-
nitely in both onshore and offshore detention centers has repeatedly come under fire from,
in particular, the UN Working Group on Arbitrary Detention: B. Doherty, “UN Body
Condemns Australia for Illegal Detention of Asylum Seekers and Refugees,” Guardian,
July 7, 2018.
284
“Due to the interpretation that the administration gives to the special regime of the two
autonomous cities [of Ceuta and Melilla], these applicants have to wait for the decision
regarding the admissibility of their claim in order to be transferred to the Spanish
peninsula and its asylum reception system, together with an authorisation issued by the
National Police allowing them to be transferred to the mainland. Limitations are also
applied to asylum applicants who pass the admissibility phase, who are entitled to free-
[dom] of movement in the rest of the Spanish territory. These limitations are informally
imposed on asylum seekers. This limitation has been declared unlawful by Spanish courts,
affirming the right to freedom of movement of all asylum seekers within the Spanish
territory on more than 18 occasions since 2010. Following on from established case law,
the Superior Court (TSJ) of Madrid delivered three new interim measure orders in 2018,
holding again once asylum seekers pass the admissibility phase, they must be considered as
documented, and for this reason their freedom of movement cannot be restricted. Until
now, however, no measure has been taken regarding this issue”: Asylum Information
Database, “Country Report: Spain 2018” (2018), at 58 (footnotes omitted), in www
.asylumineurope.org, accessed Mar. 1, 2020.
285
See P. Wintour, “Hungary to Detain all Asylum Seekers in Container Camps,” Guardian,
Mar. 7, 2017.

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restrict refugees to camps and criminalize any attempt to escape from them.286
Indeed, Kenya has gone so far as to engage in mass round-ups of Somali
refugees living in Nairobi on the pretext that those targeted were responsible
for attacks on civilians by unknown perpetrators.287 Authorities then relocated
those detained to its already overcrowded camps, despite the High Court’s
rejection of a similar plan just one year prior to the operation.288 Burmese
refugees have been forced to remain in camps along Thailand’s border for
decades; many are born there and never leave.289 Persons apprehended outside
designated camps are sent to immigration detention centers where those who
cannot afford to pay their way out may languish indefinitely or, worse, be
returned to their country of origin.290 Even in countries that traditionally allow
refugees to live where they wish, security concerns may result in the forced
relocation of refugees to camps – invoked, for example, by Liberia when it
opted to detain some 10,000 refugees in camps in 2012.291
Forcible residence in, or relocation to, refugee camps is not always the result
of direct coercion, but may sometimes be achieved indirectly. For example,
South Sudanese officials used their control of relief supplies, particularly food,
as a means of inducing reluctant Sudanese refugees in the border town of Yida
to “accept” relocation to its official camp in Ajuong Thonk. Arguing that
relocation was necessary because of Yida’s proximity to border fighting, the
policy was supported and facilitated by UNHCR and other humanitarian
organizations.292 Upon the official closure of the Manus Island offshore deten-
tion facility used to house refugees apprehended by Australia, the withdrawal
of food, water, and other essentials eventually forced resistant detainees to
relocate to their new facility near Lorengau town,293 despite repeated attacks by
the local population.294 Far from the “open” accommodation they were

286
Maple, “Rights at Risk,” at 23.
287
Human Rights Watch, “Kenya: Halt Crackdown on Somalis,” Apr. 11, 2014.
288
Ibid.; Human Rights Watch, “Kenya: End Abusive Round-Ups,” May 12, 2014.
289
BurmaLink, “Refugee Camps,” Apr. 27, 2015. “Authorities continued to treat refugees and
asylum seekers from Burma who lived outside of designated border camps, including
Rohingya boat arrivals, as illegal migrants . . . Persons categorized as illegal migrants are
legally subject to arrest and detention”: United States Department of State, 2016 Country
Reports on Human Rights Practices: Thailand, Mar. 3, 2017.
290
Human Rights Watch, “Ad Hoc and Inadequate: Thailand’s Treatment of Refugees and
Asylum Seekers,” Sept. 2012, at 37–42, 108.
291
Maple, “Rights at Risk,” at 22.
292
A. Gonzalez Farran, “Books Not Bombs for Sudan Refugees,” IRIN News, Feb. 9, 2016;
W. Babiker, “Humanitarian Deadlock in Yida,” May 23, 2013.
293
H. Davidson and C. Wahlquist, “Power Shut Off to Final Manus Compounds as 600 Men
Refuse to Leave,” Guardian, Oct. 31, 2017.
294
“Several refugees have been violently attacked by locals in recent years on Manus Island, in
cases that did not result in any prosecutions. The newer facilities offer even less protection
than the previous centre – they are not only closer to Lorengau town, but also lack basic
security infrastructure like fences. Many refugees told Amnesty International that they

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 5 .2 f reedom of residence a nd interna l movement 863

promised, the newer placement proved dangerous and restrictive, due in part
to neglect by the authorities:
Refugees remain subject to severe restrictions on their freedom of
movement. Most are unable to leave designated accommodation facil-
ities on Manus Island or in Port Moresby. They are reduced to
surviving on a basic living allowance that is insufficient to cover
their food, medicine and other expenses. PNG authorities have failed
to provide refugees with regular status, access to travel and identity
documents or the ability to obtain work long-term that is essential for
the meaningful integration of refugees. Settlement in Papua New
Guinea has proven near impossible for those refugees who have
attempted it, given the difficulties of earning a living and the constant
threat of violence.295
Conditions are especially difficult for refugees sent to “closed” camp
settings.296 For example, Tanzanian law formally prohibits refugees from
residing outside a designated refugee camp without a government-issued
permit.297 Although residents are in practice permitted to move within
a 4-kilometer radius outside their camps to collect necessities such as
firewood, the lack of a demarcation line means that those who unwittingly
stray too far may nonetheless be subject to penalties.298 Even in so-called
“open” camp settings, there can be very little real freedom of movement.
After the High Court’s 2013 ruling that Israel’s Saharonim Detention
Center violated the right to liberty, the Knesset responded by introducing
legislation authorizing the transfer of refugee claimants to the Holot

were too afraid to leave the centres due to the risk of violent attacks or robberies by locals.
The police’s repeated failures to investigate attacks or hold those responsible to account
has further undermined trust in the authorities and created a climate of impunity . . . On
21 January 2018, the UN Refugee Agency (UNHCR) also noted ‘while no formal curfew is
in place, local police have advised all refugees and asylum-seekers to return to their
accommodation by 6pm each evening to mitigate security risks’”: K. Schuetze, “Manus
Island: Australia Abandons Refugees to a Life of Uncertainty and Peril,” Feb. 1, 2018.
295
Ibid.
296
“[This] type of restriction is the most extreme, whereby a state, either in legislation or
government policy[,] restricts refugees to camps and severely restricts their freedom of
movement by operating a closed camp, or by allowing only small sections of the refugee
population to leave the camp on day passes. For example, in Mozambique persons with
specific education or training, such as lawyers or nurses[,] are allowed to work outside the
camp. Other states, such as Malawi, effectively create closed camps by charging high fees
for work permits, which refugees are generally unable to pay, meaning they cannot leave
the camp for employment. These types of restrictions can be found in either national
legislation, such as in Tanzania, or they can be governmental policy, for example in the
case of Rwanda”: Maple, “Rights at Risk,” at 23 (internal citations omitted).
297
Tanzania: Refugees Act 1998, ss. 16–17.
298
S. Chiasson, “The State of Freedom of Movement for Refugees in Tanzania: An Overview,”
Sept. 1, 2015.

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 864 5 ri g ht s of re f u g e e s l a w f u l l y p r e s e n t

Center for Residents.299 Constructed by Israel’s Defense Ministry, guarded

by the Prison Service, and surrounded by a 13-foot fence and the Negev
Desert, the Holot Center served as an “open” camp for thousands:
Asylum seekers must register there three times a day, to prove they are . . .
there. No one may leave between sundown and sunrise. If an asylum
seeker breaches, or is even suspected of planning to breach, the center’s
rules or threatens the “security of the state” or “public safety,” an Interior
Ministry official can order the person’s return to Saharonim for up to 12
months.300
Refugees not detained in prisons or refugee camps may still be relocated or
confined to a location not of their choosing. In the early 1970s, the government
of Sudan worked with UNHCR to relocate Eritrean refugees from border
camps to new, permanent settlements in the Qala en Nahal area. The relocation
was justified as requisite to enabling the refugees to become self-sufficient by
taking advantage of underutilized agricultural land. But it was opposed by the
refugees themselves as incompatible with their desire to repatriate.301 Much
the same rationale was given for Mozambique’s decision to force refugees to
abandon their homes near Maputo and to relocate them thousands of kilo-
meters away in the northern provinces, where there was access to arable land
for agricultural purposes.302 Greece insisted that its indefinite and automatic
confinement of refugee claimants to its territorial islands was necessary to
fulfill its commitment to return them to Turkey under the 2016 EU–Turkey
deal.303 Although the country’s highest administrative court determined that

299
G. Simpson, “Detention? What Detention?,” Dec. 26, 2013 (Simpson, “Detention?”);
W. Booth, “Israeli Government to Refugees: Go Back to Africa or Go to Prison,”
Washington Post, May 14, 2015.
300
Simpson, “Detention?”
301
G. Kibreab, Refugees and Development in Africa: The Case of Eritrea (1987), at 80–83. See
also A. Karadawi, Refugee Policy in Sudan, 1967–1984 (1999), at 138: “This was thought to
be an appropriate political option that minimised the security risk created by the presence
of the refugees inside Sudan and the political tensions between Sudan and Ethiopia.” The
duty of refugees to live in camps is codified in Sudanese law, with “[n]on-compliance . . .
punishable with imprisonment not exceeding one year . . . Camps and settlements in the
Sudan are thus established to perpetuate, rather than to bring to an end, refugee status and
to block the incorporation of refugees into Sudanese society”: G. Kibreab, “Resistance,
Displacement, and Identity: The Case of Eritrean Refugees in Sudan,” (2000) 34(2)
Canadian Journal of African Studies 249, at 268–270.
302
The Mozambican Foreign Minister responded to protests by indicating “that he thought
some of [the refugees] had an exaggerated idea of their rights. ‘There have been frequent
cases of demands that go beyond the obligations that states have towards them,’ he said.
[Minister] Simao explained that the decision to transfer the refugees to northern provinces
was taken to allow them space to carry out self-support activities”: Agencia de Informaçao
de Mozambique, “Mozambique Committed to Assisting Refugees,” Mar. 27, 2003.
303
Human Rights Watch, “Greece: Government Defies Court on Asylum Seekers,” Apr. 25,
2018. “Asylum seekers subject to the EU–Turkey statement are issued a geographical

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 5 .2 f reedom of residence a nd interna l movement 865

there were no “serious or overriding reasons of public interest” to justify the

measure,304 the policy was reinstated just days later305 despite evidence of
severe overcrowding, poor sanitation, and food and water insecurity.306
While not confining refugees to prisons or camps, Germany’s Residence Act
provides that asylum-seekers “shall be obliged to take up their habitual resi-
dence (place of residence) for a period of three years as from recognition or
issuance of the temporary residence permit in the Land to which they have
been allocated for the purposes of their asylum procedure.”307 Indeed, “[i]n
order to promote their lasting integration into the way of life in the Federal
Republic of Germany, foreigners who are subject to [this] obligation shall be
obliged, within six months of recognition or the first issuance of a temporary
residence permit . . . to take up residence in a specific place if this can help
them” secure accommodation, master the German language, or engage in
employment.308
More generally, European Union law authorizes tough restrictions on
refugee freedom of residence and movement. Under the European Union’s
recast Reception Directive, EU states enjoy the right to “decide on the resi-
dence of the applicant [for asylum] for reasons of public interest, public order
or, when necessary, for the swift processing and effective monitoring of his or

restriction, ordering them not to leave the respective island until the end of the asylum
procedure. The practice of geographical restriction has led to a significant overcrowding of
the facilities on the islands and thus to the deterioration of reception conditions. On
17 April 2018, following an action brought by GCR, the Council of State annulled the
Decision of the Director of the Asylum Service regarding the imposition of the geograph-
ical limitation. A new Decision of the Director of the Asylum Service was issued three days
after the judgment and restored the geographical restriction on the Eastern Aegean
islands”: Asylum Information Database, “Country Report: Greece 2018” (2019), at 17, in
www.asylumineurope.org, accessed Mar. 1, 2020.
304
N. Kitsantonis, “Greek Court Upends Rules Limiting Migrants’ Movements,” New York
Times, Apr. 19, 2018.
305
Human Rights Watch, “Greece: Government Defies Court on Asylum Seekers,” Apr. 25,
2018.
306
“Reception facilities on the islands remain substandard and may reach the threshold of
inhuman and degrading treatment, as it has been widely documented. Overcrowding, lack
of basic services, including medical care, limited sanitary facilities, and violence and lack of
security poses significant protection risks. The mental health of the applicants on the
islands is reported aggravating”: Asylum Information Database, “Country Report: Greece
2018” (2019), at 17, in www.asylumineurope.org, accessed Mar. 1, 2020.
307
Act on the Residence, Economic Activity and Integration of Foreigners in the Federal
Territory, as amended by Art. 10(4) of the Act of 30 October 2017 (Federal Law Gazette
I p. 3618), at s. 12a(1). While introduced as a temporary provision due to expire in 2019,
the provision has since been made a permanent part of German law: Communication
from C. Hruschka, Mar. 20, 2020 (on file with the author).
308
Act on the Residence, Economic Activity and Integration of Foreigners in the Federal
Territory, as amended by Art. 10(4) of the Act of 30 October 2017 (Federal Law Gazette
I p. 3618), at s. 12a(3).

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 866 5 ri g ht s of re f u g e e s l a w f u l l y p r e s e n t

her application for international protection.”309 If a refugee abandons the

assigned place of residence without permission, the Directive authorizes the
host state to “reduce or . . . withdraw material reception conditions”310 –
a euphemism for “housing, food and clothing provided in kind, or as financial
allowances or in vouchers, or a combination of the three, and a daily expenses
allowance.”311
While not formally limiting freedom of movement, some states impose de
facto constraints on the mobility of refugees by tying access to public housing
or income support to residence in designated areas or facilities. Under the
United Kingdom’s dispersal policy, persons found to be refugees must remain
in the dispersal area to which they were assigned upon arrival or face ineligi-
bility for housing assistance for a period of six months.312 Zimbabwe, Tunisia,
and Kenya impose a “‘choice’ between living in a camp and receiving aid from
international organizations, or leaving and fending for themselves without the
ability to legally work.”313 The role of UNHCR and other humanitarian
organizations in facilitating these policies has drawn scrutiny:

309
The relevant portions of Art. 7 provide that “[a]sylum seekers may move freely within the
territory of the host Member State or within an area assigned to them by that Member
State . . . Member States may decide on the residence of the applicant for reasons of public
interest, public order or, when necessary, for the swift processing and effective monitoring
of his or her application for international protection [emphasis added]”: Council Directive
laying down standards for the reception of applicants for international protection (recast),
Doc. 2013/33/EU (June 26, 2013) (EU Reception Conditions Directive (recast)), at Art.
7(1)–(2).
310
EU Reception Conditions Directive (recast), at Art. 20(1)(a). Beyond concerns of freedom
of movement and residence, the withdrawal of rights as punishment is inconsistent with
decisions taken in drafting Art. 2 of the Refugee Convention. See Chapter 1.4.4 at note 150.
311
EU Reception Conditions Directive (recast), at Art. 2(g). Critically, however, “Member
States shall under all circumstances ensure access to health care . . . and shall ensure
a dignified standard of living for all applicants”: ibid. at Art. 20(5).
312
“Once an individual is granted asylum and gains refugee status, those fully supported must
leave their dispersal accommodation within 28 days. Section 11 of the Asylum and
Immigration (Treatment of Claimants etc.) Act 2004 provides that asylum seekers estab-
lish a local connection to the dispersal site where they were provided accommodation.
This means that refugees who require local authority housing must apply in the same area
to which they were dispersed and is known as the ‘local connection rule.’ Local authorities
can therefore refer individuals to the original dispersal area for housing claims. As an
example, the local connection rule requires an asylum seeker who is dispersed to Cardiff to
apply for local authority housing only in Cardiff at the end of the 28 days after being
granted refugee status. If the individual decides to migrate onwards to London or
Manchester, they are regarded as being ‘intentionally homeless’ and cannot apply for
local authority housing for the first six months because their ‘local connection’ is with
Cardiff”: E. Stewart and M. Shaffer, “Moving On? Dispersal Policy, Onward Migration and
Integration of Refugees in the UK,” Dec. 2015, at 14.
313
Maple, “Rights at Risk,” at 24.

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 5.2 f r e e do m o f r es i den ce a n d i nternal m ovem ent 867

UNHCR has a long history of using care and maintenance programmes in

camps in Africa, which has at times reduced or substituted the role of
states in the protection of refugees within their borders and prolonged the
length of time refugees are confined within camps . . . [T]hrough these
programmes, UNHCR [is] assisting in creating de facto restrictions. By
only making programmes available in camps UNHCR [is] creating impos-
sible choices for refugees, who may wish to be self-sufficient, but for
whom, without initial assistance from the host government or the inter-
national community, will find living in urban settings unsustainable.314
Even where refugees are not subject to efforts to confine them in camps or
particular regions, they may still not enjoy real freedom of movement within the
whole of the territory of the host country. Non-citizens in Tajikistan, for instance,
may not travel within 15 miles of the borders with Afghanistan and China without
a permit from the Ministry of Foreign Affairs.315 Moreover, a refugee-specific ban
on residing in the capital or any major cities has forced the country’s predomin-
antly Afghan refugee population into rural areas with limited access to education
and employment; those who violate the prohibition are subject to deportation.316
Malawi charges high fees for work permits which most refugees are not able to pay,
thus effectively confining them to camps where their subsistence needs can be
met.317 Bangladesh has imposed roadblocks to check the movement of Rohingya
refugees who are confined to overcrowded rural camps along the border in order
to prevent them from integrating in cities and towns.318
A softer form of constraint on refugee freedom of movement exists in the
Netherlands. Those who choose to live in a reception center, or
Asielzoekerscentrum, are free to come and go as they please, but must report
in person on a weekly basis in order to benefit from material assistance
programs.319 Beneficiaries may moreover refuse an accommodation placement
offer; in such cases, the refugee agency assesses whether the refusal is justifiable
and, if so, offers a new placement option. If the refusal is determined to be
unjustified, the beneficiary is given twenty-four hours to accept the offer before
its expiration.320
Refugee Convention, Art. 26 Freedom of Movement
Each Contracting State shall accord to refugees lawfully in its
territory the right to choose their place of residence and to

314
Maple, “Rights at Risk,” at 25–26.
315
US Department of State, “2017 Human Rights Report: Tajikistan,” at 14–15.
316
Ibid. at 15–17. 317 Maple, “Rights at Risk,” at 23.
318
“Bangladesh Imposes Mobile Phone Ban on Rohingya Refugees,” Agence France-Presse,
Sept. 24, 2017; see also M. Bearak, “One Month on, Bleak New Reality Emerges for 436,000
Rohingya Refugees,” Washington Post, Sept. 25, 2017.
319
Asylum Information Database, “Country Report 2018: Netherlands” (2019), at 63, in
www.asylumineurope.org, accessed Mar. 1, 2020.
320
Ibid. at 94.

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 868 5 r i g ht s o f re f u g e e s l a w f u l l y p r e s e n t

move freely within its territory, subject to any regulations applic-

able to aliens generally in the same circumstances.

Civil and Political Covenant, Art. 12

1. Everyone lawfully within the territory of a State shall, within
that territory, have the right to liberty of movement and
freedom to choose his residence.
...
3. The above-mentioned rights shall not be subject to any
restrictions except those which are provided by law, are
necessary to protect national security, public order
(ordre public), public health or morals or the rights
and freedoms of others, and are consistent with the
other rights recognized in the present Covenant.
...
The drafters of the Refugee Convention were firmly committed to the view
that once lawfully in the territory of a state party, refugees should be subject
only to whatever restrictions govern the freedom of internal movement and
residence of other non-citizens. The presumptive right of refugees to be
assimilated to other aliens for purposes of freedom of movement can be
constrained in only the two circumstances covered by Art. 31(2): during the
early days of a mass influx, or while investigating the identity of, and possible
security threat posed by, an individual seeking recognition of refugee status.
The more general rule set by Art. 26 prohibits refugee-specific policies or
practices which curtail the ability of refugees to choose the place where they
wish to live, or to move about the territory of a state party.321
This compromise position was awkwardly arrived at. Despite the precedent
of the 1938 Convention, which expressly provided for the right of refugees to
enjoy freedom of internal movement,322 the working draft for the 1951
321
The UK Supreme Court rejected the view that refugees living in British Sovereign Base
Areas on Cyprus could rely on the Art. 26 right to “move freely within its territory” to
secure resettlement to the metropolitan area of the United Kingdom, finding that “the
metropolitan territory and its dependent territories are to be treated as separate units . . .
Each territory for the international relations of which the State is responsible must in this
context be treated separately”: R (Tag Eldin Ramadan Bashir) v. Secretary of State for the
Home Department, [2018] UKSC 45 (UK SC, July 30, 2018), at [80]–[81]. Reasoning by
reliance on Arts. 19(2) and 40 of the Refugee Convention, the Court determined that Art.
26 freedom of movement “is directed to movement by a refugee within whichever territory
they may be, whether it be the metropolitan territory, if that is where they are, or any
overseas dependent territory, if they are there . . . It cannot have been directed to confer-
ring on a refugee a right to move between all or any of a State’s metropolitan and overseas
territories, subject only to such constraints as might affect an alien”: ibid. at [83].
322
“Without prejudice to the power of any High Contracting State to regulate the right of
sojourn and residence, a refugee shall be entitled to move about freely, to sojourn or reside
in the territory the present Convention applies to, in accordance with the laws and internal

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 5.2 f r ee d o m o f r e s i d e n c e a n d i n t e r n a l m o v e m e n t 869

Convention did not even mention the issue. This omission was noted during
discussion of the right of refugees to receive identity papers, when the Belgian
and French representatives suggested that the failure to codify freedom of
internal movement would amount to “a gap in the draft.”323 It emerged that the
reason for the omission had been to avoid the suggestion that states could not
impose restrictions on freedom of movement during a mass influx:
The Secretariat had had in mind the case of the Spanish refugees who
presented themselves in large numbers at the French frontier towards the
end of the Spanish Civil War and for whom it had been necessary to set up
reception camps to meet their immediate needs before regularizing their
position and arranging for their dispersal throughout the country. The
obligation to remain in these camps was clearly a considerable limitation
on the right of movement . . . Such a practice might, however, prove
essential in certain circumstances.324
Elaborating this concern later in the debate, the representative of the
International Refugee Organization implored representatives who favored an
article that would codify the right of refugees to enjoy freedom of movement to
be realistic:
Realities must be faced and it must be remembered that the problem which
had arisen in France when vast numbers of Spanish refugees had arrived
was reappearing, or was liable to reappear in other countries, such as
Switzerland, Italy, and so forth.325
In addition to the need to be able lawfully to restrict freedom of movement
while organizing the reception of a mass influx of refugees, the Danish repre-
sentative to the Ad Hoc Committee argued that governments should also be
entitled to detain dangerous refugees. Mr. Larsen was concerned about “the
case of refugees who, having been admitted to a country, had to be expelled
from it but could not leave immediately. It was clear that the two situations had
certain points in common.”326 He therefore proposed an amendment that

regulations applying therein”: Convention governing the Status of Refugees coming from
Germany, 4461 LNTS 61, done Feb. 10, 1938 (1938 Refugee Convention), at Art. 2.
323
Statement of Mr. Rain of France, UN Doc. E/AC.32/SR.15, Jan. 27, 1950, at 12. See also
Statement of Mr. Cuvelier of Belgium, ibid. at 11: “Such a provision was included in article
2 of the 1938 Convention, which gave refugees the right to move about freely, to sojourn
and to reside in the territory to which they had been admitted. He would like to know why
the Secretariat had omitted to include those provisions in its draft, and also whether the
Committee would be prepared to have them in the Convention.”
324
Statement of Mr. Rain of France, ibid. at 14.
325
Statement of Mr. Weis of the IRO, ibid. at 18.
326
Statement of Mr. Larsen of Denmark, ibid. at 22. The original concern of the Danish
representative really does not raise an issue of concern to refugee law. If it is determined
that the person seeking recognition of refugee status is subject to exclusion on the grounds
of, for example, having committed an extraditable crime or posing a threat to national

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 870 5 r i g ht s o f re f u g e e s l a w f u l l y p r e s e n t

Internment and restricted residence may be enforced only in individual

cases and for imperative reasons of national security and order. The
conditions of internment and the treatment of interned refugees shall,
both morally and materially, be consistent with human dignity.327
In the end, it was agreed that the right of states to detain refugees who pose
a threat to host state security, as well as to resort to provisional detention
during a mass influx, should be addressed in the context of what became Art.
31(2),328 which grants states some flexibility to limit the freedom of movement
of refugees in both situations of concern.329 As previously described,330 Art.
31(2) authorizes the provisional detention of refugees arriving in the context of
a mass influx for a short time to enable the receiving state to organize the
logistics of emergency reception and dispersal in a way that minimizes

security, he or she is not a refugee and is therefore subject to the state’s general immigra-
tion detention rules. But because of the declaratory nature of refugee status, an exception
to the general right to freedom of movement was required to authorize detention while the
circumstances which might justify exclusion from refugee status are being investigated.
This is a function of Art. 31(2): see Chapter 4.2.4.
327
Statement of Mr. Larsen of Denmark, ibid. at 23.
328
Statements of Mr. Henkin of the United States and Mr. Rain of France, ibid. at 23–24.
329
This understanding is adopted by R. Marx, “Article 26,” in A. Zimmermann ed., The 1951
Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary 1147
(2011) (Marx, “Article 26”), at 1160.
330
See Chapter 4.2.4 at notes 1278–1300. The French representative insisted that any right to
detain refugees arriving in a mass influx not be included as a limitation on the
Convention’s right of freedom of movement, but instead be carefully placed within the
article addressing the question of expulsion and admittance (now Art. 31). He observed
that “[t]he admission that refugees could be placed in camps was only due to the fact that
such measures were sometimes inevitable if the refugees were in such vast numbers that
a State felt that to allow them to scatter throughout its territory might be detrimental to
public order”: Statement of Mr. Rain of France, UN Doc. E/AC.32/SR.15, Jan. 27, 1950, at
24. In introducing the right of states to restrict freedom of movement under Art. 31(2), the
representative of the International Refugee Organization confirmed that it “concerned
primarily the position of refugees admitted provisionally as an emergency measure. He
recognized that it was sometimes impossible for Governments to allow such refugees full
freedom of movement and the paragraphs proposed were intended to define the restric-
tions which might be necessary and to reduce them to the minimum”: Statement of
Mr. Weis of the IRO, UN Doc. E/AC.32/SR.21, Feb. 2, 1950, at 3. Robinson observes in
a footnote that “Art. 26 would also not conflict with special situations where refugees have
to be accommodated in special camps or in special areas even if this does not apply to
aliens generally [emphasis added]”: Robinson, History, at 133, n. 207. Goodwin-Gill cites
Robinson’s position without analysis, noting simply that “[s]uch measures are now the
usual response, especially on the occasion of large-scale influx [emphasis added]”:
G. Goodwin-Gill, “International Law and the Detention of Refugees,” (1986) 20(2)
International Migration Review 193, at 207. But in light of the drafting history and context
of Arts. 31(2) and 26 described here, the exceptional right to detain should be understood
to be fully codified in Art. 31(2). Otherwise refugees may be confined to camps only in
accordance with rules applicable to aliens generally, and which meet the requirements of
Art. 12 of the Civil and Political Covenant: see text at note 383 ff.

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 5. 2 f r e edo m o f r es i d en c e an d i n t er n a l m o v em e n t 871

disruptions to public order. More generally, it also allows host states to limit
freedom of movement during the time needed to ensure that an individual
seeking entry as a refugee does not pose a threat to national security, for
example while investigating his or her identity and circumstances of arrival.331
Importantly, however, the right of a state to limit a refugee’s freedom of
movement on either ground comes to an end once a refugee’s status is
“regularized.” As previously analyzed, regularization is not synonymous with
recognition of refugee status.332 To the contrary, “[a]ny person in possession of
a residence permit was in a regular position. In fact, the same was true of
a person who was not yet in possession of a residence permit but who had
applied for it and had the receipt for the application. Only those persons who
had not applied, or whose application had been refused, were in an irregular
position [emphasis added].”333 Once status is regularized, including by the
lodging of an application for recognition of refugee status and completion by
the individual concerned of the necessary steps to enable a state to assess his or
her claim,334 all refugee-specific restrictions on the right to move freely and to
choose one’s residence must end in accordance with Art. 26.335 As such, while
Bangladesh would have been initially justified in confining the mass influx of
Rohingya refugees while their claims were registered, its decision indefinitely

331
See UNHCR Executive Committee Conclusion No. 44, “Detention of Refugees and
Asylum-Seekers” (1986), at [(a)], which “[n]oted with deep concern that large numbers
of refugees and asylum-seekers in different areas of the world are currently the subject of
detention or similar measures by reason of their illegal entry or presence in search of
asylum, pending resolution of their situation.” The Executive Committee then agreed that
“detention should normally be avoided. If necessary, detention may be resorted to only on
grounds prescribed by law to verify identity; to determine the elements on which the claim
to refugee status or asylum is based; to deal with cases where refugees or asylum-seekers
have destroyed their travel and/or identity documents in order to mislead the authorities
of the State in which they intend to claim asylum; or to protect the national security or
public order”: ibid. at [(b)]. While the reference to public order is not justified under Art.
31(2), the balance of this formulation is a helpful summary of the scope of permissible
provisional denial of freedom of movement.
332
See Chapter 3.1.3 at note 129.
333
This statement of the representative of France was made during the course of the discus-
sion on the right of refugees to enjoy freedom of internal movement and choice of
residence: Statement of Mr. Rain of France, UN Doc. E/AC.32/SR.15, Jan. 27, 1950, at 20.
334
See generally Chapter 3.1.3 in which the logical and legal reasons for endorsing this
understanding are set out in detail.
335
“Article 26 makes it clear beyond doubt that a contracting State may not impose . . .
restrictions applicable only to refugees”: Marx, “Article 26,” at 1149. “The freedom of
movement as [defined] by Article 26 is not dependent on any particular purpose. The
refugee may move around for business or for pleasure”: Grahl-Madsen, Commentary, at
111. See generally “The Michigan Guidelines on Refugee Freedom of Movement,” (2018)
39 Michigan Journal of International Law 1, at [19]; and M. Zieck, “Refugees and the Right
to Freedom of Movement: From Flight to Return,” (2018) 39(1) Michigan Journal of
International Law 19 (Zieck, “Freedom of Movement”).

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 872 5 r i g h t s of re f u g e e s l a wf u l l y p r e s e n t

to maintain roadblocks to prevent the refugees from seeking shelter in cities

and towns336 is at odds with duties under Art. 26.
Because all refugee-specific constraints must end as soon as the individual
concerned has regularized her status by complying with her obligations to
provide authorities with the information needed to assess the claim to be
a refugee, ongoing mandatory refugee encampment is never legal. The High
Court of Kenya determined as much, finding that a mandatory encampment
policy “which targets refugees and asylum seekers in urban centres is a threat to
their right to freedom of movement enshrined in Article 26 of the 1951
Convention.”337 Indeed, UNHCR – historically a proponent of refugee
camps – adopted in 2014 what has been referred to as a paradigm shift in
refugee protection,338 acknowledging that it was critical to remove the “limita-
tion on the rights and freedoms of refugees”339 inherent in practices of routine
refugee encampment. In line with this view, the Supreme Court of Justice of
Papua New Guinea struck down the system under which asylum-seekers
expelled by Australia were held “against their will [in a center] enclosed with
razor wire and manned by security officers to prevent the asylum-seekers from
leaving the centre”:340
The only reason why the asylum seekers are detained . . . is for the
purposes of processing their asylum claims . . . [T]reating those required
to remain in the relocation centre as prisoners irrespective of their

336
See text at note 318.
337
Kituo Cha Sheria v. Attorney General, Petition No. 19 of 2013 (Ken. HC, July 26, 2013), at
[59]. In its brief filed in the case, UNHCR rightly insisted that “Article 9 . . . applies only to
‘particular persons,’ [meaning that] any measures pursued under Article 9 must be
directed against specific individuals – not collectively – on account of the particular threat
they pose themselves”: UNHCR, “Brief of the 1st Amicus Curiae in Petition No. 115 of
2013,” Mar. 12, 2013, at 15–16. In a subsequent decision, the government’s plan was sadly
affirmed on the basis that “the petitioners’ refugee status is in doubt” and that the
government agreed that it would not undertake “a security operation where urban
refugees were to be rounded up”: Samow Mumin Mohamed v. Cabinet Secretary,
Ministry of Interior, Petition No. 206 of 2011 (Ken. HC, June 30, 2014), at [25], [21].
The latter decision nonetheless affirmed that “[i]t is not in dispute that refugees are
entitled to the full panoply of rights and fundamental freedoms guaranteed by the
Constitution . . . and international treaties and conventions governing refugees” (ibid.
at [15]).
338
L. Hovil, “With Camps Limiting Many Refugees, the UNHCR’s Policy Change is
Welcome,” Guardian, Oct. 2, 2014.
339
UNHCR, “Policy on Alternatives to Camps,” UN Doc. UNHCR/HCP/2014/9, July 22,
2014. A more recent analysis warns, however, that “moving policy away from decades of
operational work within camps will be a seismic shift in how UNHCR operates . . . [A]
great deal will depend on successful implementation on the ground”: Maple, “Rights at
Risk,” at 15.
340
Belden Norman Namah v. Minister for Foreign Affairs and Immigration, Dec. No. SC1497
(PNG SCJ, Apr. 26, 2016), at [20].

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 5.2 f reedom of residence and internal movement 873

circumstances or their status save only as asylum seekers is to offend

against their rights and freedoms as guaranteed by the various conven-
tions on human rights at international law.341
The decisions of Sudan to criminalize refugees found outside camps342 and of
Thai authorities to force Burmese refugees to languish in camps for decades343
are thus simply unlawful.
While formally designated refugee camps are less common in the
developed world, Hungary’s decision to confine refugees in compounds
of converted shipping containers well past the point of regularization of
status – including for the duration of any appeals344 – amounts in
substance to the establishment of an unlawful camp. Indeed, because
Art. 26 is not simply a prohibition of indefinite confinement to camps,
but rather a duty to ensure that refugees enjoy an affirmative right to
freedom of movement as well as to choose their place of residence, it is
also breached by generalized policies of post-regularization detention of
refugee claimants such as those implemented by Australia and the United
States.345 As the European Court of Justice has affirmed, a state “may not
hold a person in detention for the sole reason that he has made an
application for international protection.”346
This prohibition on refugee-specific constraints on choice of residence is no
less offended when the approach of authorities is indirect,347 such as the
manipulation of access to relief supplies by South Sudanese officials to force
341
Ibid. at [59], [69]. See also Plaintiff S195/2016 v. Minister for Immigration and Border
Protection, [2017] HCA 31 (Aus. HC, Aug. 17, 2017), at [25], noting that the Namah decision
“plainly held that treatment [of refugees] . . . contravened provisions of the Constitution of
PNG and was unsupported by PNG law.” A complaint was subsequently filed with the
Prosecutor of the International Criminal Court alleging that Australia’s policy of removing
refugees to unlawful detention in Papua New Guinea amounted to participation in actions
prohibited by Art. 7 of the Rome Statute: Communiqué to the Office of the Prosecutor of the
International Criminal Court, Feb. 15, 2017. On Feb. 12, 2020, the Office of the Prosecutor
determined that the “conditions of detention appear to have constituted cruel, inhuman, or
degrading treatment . . . and the gravity of the alleged conduct thus appears to have been such
that it was in violation of fundamental rules of international law” but that “there is insufficient
information at this stage to indicate that the multiple acts of imprisonment or severe
deprivation of liberty were committed pursuant to or in furtherance of a State (or organisa-
tional) policy to commit an attack against migrants or asylum seekers seeking to enter
Australia by sea, as required by article 7(2)(a) of the Statute”: Letter from Phakiso
Mochochoko, Director, Jurisdiction, Complementarity and Cooperation Division,
International Criminal Court to the Office of Andrew Wilkie MP, Feb. 12, 2020, Doc. OTP-
CR-322/14/00, uploads.guim.co.uk/, accessed Feb. 25, 2020.
342
See text at note 286. 343 See text at note 289. 344 See text at note 285.
345
See text at notes 282–283.
346
JN v. Staatssecretaris voor Veiligheid en Justitie, Dec. No. C-601/15 PPU (CJEU, Feb. 15,
2016), at [61].
347
“The travaux are . . . clear: refugee-specific constraints, including indirect ones such as terms
and conditions of admission (e.g. residence in return for work in a specific location and for

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 874 5 r i g h t s of re f u g e e s l a wf u l l y p r e s e n t

refugees into the Ajuong Thonk camp,348 or the withdrawal from refugees in
Papua New Guinea of food, water, and other necessities to compel them to
accept relocation to facilities in Lorengau.349 When Zimbabwe, Tunisia, and
Kenya imposed a “choice” between agreeing to live in a camp and leaving
with no support and no right to work350 they effectively gave refugees no
option but to sacrifice their right to freedom to choose their place of resi-
dence. The United Kingdom’s policy that renders refugees ineligible for
housing assistance for six months if they move beyond their assigned disper-
sal area351 is similarly problematic. Because no state may lawfully withhold
the essentials of life from refugees,352 there is no legal difference between the
use of such threats to compel a refugee to reside in a place not of his or her
choosing and a direct order of confinement. As observed by Lord Justice
Sedley in a challenge to the British dispersal policy, the system has the “harsh
effect of restricting – but not necessarily excluding – the ability [of refugees]
to settle in a place of their choice.”353 In contrast, the Dutch system – under
which basic income support is provided to all refugees awaiting the results of
status verification, but superior benefits are offered to those willing to live in
a refugee reception center354 – is not legally problematic. By offering an
enhanced level of support to those who agree to reside in a designated
place, the Netherlands promotes the reception center option without any
unlawful coercion.
Nor may a state lawfully withhold documentation from a refugee with
knowledge that doing so prevents the refugee from enjoying his or her
right to freedom of movement – for example, the refusal of Spanish
authorities to issue documents to post-admissibility refugee claimants
who sought protection in the Spanish enclaves of Ceuta and Melilla.355
As the Chief Justice of Australia determined in a case in which domestic
“visa capping power” was relied upon by the government to withhold
a protection visa from an Ethiopian recognized as a refugee,
the application of [the capping regulations] would have the conse-
quence that the date of decision could be indefinitely deferred . . . thus
prolonging the period that the applicant would remain in
detention . . . That consequence, extending as it necessarily would to
persons who, like the plaintiff, . . . are persons in respect of whom

a specific amount of time)[,] were explicitly rejected by the drafters”: Zieck, “Freedom of
Movement,” at 84.
348
See text at note 292. 349 See text at note 293. 350 See text at note 313.
351
See text at note 312. 352 See Chapter 4.4.
353
Ozbek v. Ipswich Borough Council, [2006] EWCA Civ 534 (Eng. CA, May 4, 2006), at [67], per
Sedley L.J. concurring. Lady Justice Arden agreed “that there is, as Sedley L.J. holds, a restriction
on his freedom to settle in a place of his choice”: ibid. at [68], per Arden L.J. concurring.
354
See text at note 319. 355 See text at note 284.

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 5.2 f reedom of residence and internal movement 875

Australia has protection obligations under the Refugee Convention . . .

is at odds with . . . Australia’s obligations under the Convention and
the purpose of protection visas as a mechanism for meeting those
international obligations.356
In a similar vein, governments may not lawfully rely on the terms of
refugee resettlement or temporary admission in order indirectly to limit
the freedom of movement and choice of residence of refugees. This
possibility was raised by the representative of Venezuela to the Ad Hoc
Committee, who noted that granting refugees complete freedom to
choose their residence might allow them to ignore the terms of resettle-
ment agreements under which refugees were admitted to residence in
return for agreeing to work on a particular farm for a period of years.357
Similarly, the Danish delegate sought to safeguard systems under which
refugees were required to live in a particular location while acquiring the
skills that would enable them to be resettled.358 The example given was
Denmark’s decision during the Nazi era to admit to its territory “certain
young German Jews on the condition that after they had completed their
agricultural training there, they would leave for other countries, Israel for
example, in order to follow their occupation.”359 In a bid to accommo-
date concerns of this kind, the Chairman of the Ad Hoc Committee
proposed that the right of refugees to enjoy freedom of internal move-
ment and residence be “subject to the conditions under which they were
admitted.”360
The Chairman’s proposal was, however, rejected on the grounds that it
could be seen as a justification for other refugee-specific constraints. Because
“such an addition would provide few safeguards for refugees,”361 the
Committee voted to prohibit all refugee-specific limitations on freedom of
movement or residence, including those implemented indirectly by terms

356
Plaintiff M150/2013 v. Minister for Immigration and Border Protection, [2014] HCA 25
(Aus. HC, June 20, 2014), at [31], per French C.J.
357
The Venezuelan representative “drew attention to the problem with which the
authorities of a signatory State might be faced in the event of the article’s adoption,
if, for example, refugees admitted as agricultural workers were to leave the farms to
which they had been assigned and engage in trade in the towns, refusing to return
to agricultural work. Although the refugees would thereby have infringed the
conditions of their admission to the territory, the reception State might find itself
powerless to take any action against them by virtue of the provisions of the article
which the Committee was proposing to adopt”: Statement of Mr. Perez Perozo of
Venezuela, UN Doc. E/AC.32/SR.15, Jan. 27, 1950, at 15.
358
Statement of Mr. Larsen of Denmark, ibid. at 16. 359 Ibid. at 16.
360
Statement of the Chairman, Mr. Chance of Canada, ibid. at 21.
361
Statement of Sir Leslie Brass of the United Kingdom, ibid. at 21.

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 876 5 r i g ht s of re f u g e e s l a w f u l l y p r e s e n t

and conditions of admission,362 unless generally applied to all non-

citizens:363
If new restrictions were introduced into a provision which was intended to
grant refugees simple equality of treatment with aliens – an equality which,
it seemed to him, should be taken for granted – it would look as though
States were being invited to treat the refugees with less consideration than
was accorded to aliens.364

362
The use of indirect limitations was identified as problematic by the American representa-
tive early in the discussions. In response to a Belgian proposal to incorporate the rule on
freedom of movement from the 1938 Convention, Mr. Henkin “pointed out that the first
phrase of that article, ‘Without prejudice to the power of any High Contracting Party to
regulate the right of sojourn and residence’ appeared to nullify in advance the rights
granted to refugees in the latter part of the text”: Statement of Mr. Henkin of the United
States, ibid. at 13. Interestingly, even though the discussions noted above had clearly
resulted in a decision that terms and conditions of admission could not be relied upon to
restrict freedom of movement, the draft adopted by the First Session of the Ad Hoc
Committee still contained the reference to “the conditions under which such refugees
were admitted”: Ad Hoc Committee, “First Session Report,” at Annex I, Art. 21. Without
any recorded debate, however, the report of the Second Session of the Ad Hoc Committee
deleted the reference, allowing only “regulations applicable to aliens generally in the same
circumstances” to delimit a refugee’s freedom of movement and residence: Ad Hoc
Committee, “Second Session Report,” at Annex I, Art. 21. But see Weis, Travaux, at
210: “Article 26 . . . does not affect the conditions imposed on refugees for their
admission.”
363
At the Conference of Plenipotentiaries, it was suggested by Canada and Australia that
requiring refugees admitted under general immigration schemes to remain in a given job
for a period of time should not be understood to violate Art. 26: Statements of Mr. Shaw of
Australia and Mr. Chance of Canada, UN Doc. A/CONF.2/SR.11, July 9, 1951, at 16. This
is a plausible interpretation, since refugees resettled as immigrants would only face the
same (indirect) constraints on freedom of movement as any other non-citizen admitted
under the general program. As Grahl-Madsen observed, Art. 26 “does not relate to
employment. The rules regulating employment are found in Articles 17 through 19 [see
Chapters 5.3, 6.1, and 6.2]. It will be appreciated that in so far as there are restrictions on
the freedom to seek whatever employment one might desire, the right to choose one’s
place of residence may be restricted in fact though not in law”: Grahl-Madsen,
Commentary, at 111. It would be otherwise, however, if a resettlement program were
directed only to refugees, or if a variant of a general program addressed to refugees
imposed more significant limitations on freedom of movement or residence than the
general scheme for non-citizens wishing to immigrate. Indeed, Australia recognized as
much by entering a reservation (since withdrawn), providing that Art. 26 would not be
understood to preclude “the imposition of conditions upon which a refugee may enter the
Commonwealth . . . [or] the making of arrangements with a refugee under which he is
required to undertake employment under the direction of the Government”: 189 UNTS
200–202.
364
Statement of Mr. Rain of France, UN Doc. E/AC.32/SR.15, Jan. 27, 1950, at 21. See also
Statements of Mr. Guerreiro of Brazil and Mr. Cuvelier of Belgium, ibid. Providing an
example of a limit which appears to have been found acceptable by the Committee, the
Brazilian delegate pointed out that “it was true that refugees authorized to enter Brazil as

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 5.2 f reedom of residence and internal movement 877

In line with this firm commitment to assimilate refugees to other non-

citizens,365 not even a proposal introduced at the Conference of
Plenipotentiaries to authorize refugee-specific constraints on place of resi-
dence where necessary to avoid friction between states was pursued.366 There
is, of course, no legal impediment to the promotion of residence in areas safe
from border incursion or incitement to hostility, so long as refugees are not
forcibly moved or confined to their new homes. As such, Art. II(6) of the AU
Refugee Convention – providing that “[for] reasons of security, countries of
asylum shall, as far as possible, settle refugees at a reasonable distance from the
frontier of their country of origin [emphasis added]”367 – is capable of being
lawfully implemented. But this is so only insofar as coercion is scrupulously
avoided – thus calling into question Liberia’s security-based mandatory
encampment of 10,000 refugees in 2012.368 If enforced constraints on freedom
of residence are deemed essential, they must be directed to all non-citizens (or
to all persons). Even Art. 9 of the Convention, which does allow strictly
provisional and genuinely essential restrictions on freedom of movement
and residence in response to “war or other grave and exceptional circum-
stances,” does not authorize a general policy of refugee-specific constraints
after the verification of refugee status.369
As the preceding analysis suggests, there can be some limits on the freedom
of movement or choice of residence of lawfully present refugees (including
those awaiting a decision on their application for recognition of refugee status).

farm workers were required to remain so for a certain number of years, [but] the same
provisions applied equally to aliens”: Statement of Mr. Guerreiro of Brazil, ibid.
365
“Article 26 makes it clear beyond doubt that a Contracting State may not impose such
restrictions applicable only to refugees”: Grahl-Madsen, Commentary, at 110.
366
“[T]he Yugoslav delegation had submitted an amendment . . . to cover cases where the fact
that refugees resided near the frontier of their country of origin might cause friction
between the States. Contracting States should be empowered to prescribe zones in which
residence would be forbidden to refugees”: Statement of Mr. Makeido of Yugoslavia, UN
Doc. A/CONF.2/SR.11, July 9, 1951, at 16. The proposal was, however, withdrawn: ibid.
One country – Burundi – has made a reservation to prohibit refugees from residing “in
a region bordering on their country of origin”: https://treaties.un.org, accessed Dec. 21,
2020.
367
Convention Governing the Specific Aspects of Refugee Problems in Africa, 1001 UNTS 45
(UNTS 14691), done Sept. 10, 1969, entered into force June 20, 1974, at Art. II(6). See
Chapter 1.5.3 at note 272.
368
See text at note 291.
369
More specifically, any decision to invoke Art. 9 must be predicated on a good faith
assessment that restrictive measures are essential to protection of the receiving state’s
most vital national interests. The steps taken must be logically connected to eradication of
the security concern, may not be of indefinite duration, and may be continued after an
individual’s refugee status is affirmatively verified only on the basis of unresolved case-
specific security concerns. In order to avail itself of even this discretion, a state must
proceed in good faith to investigate the security concerns and to verify refugee status. See
generally Chapter 3.5.1.

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Art. 26 allows state parties to subject refugees to “any regulations applicable to

aliens generally in the same circumstances.”370 Tajikistan’s ban on travel
within 15 miles of its borders with Afghanistan and China371 – applying not
just to refugees, but to all non-citizens – is thus not in breach. Similarly the
subjection of a particular refugee to security-based constraints on internal
movement under a law of general application is not problematic. This under-
standing is implicit in the CJEU Advocate General’s position that a Kurdish
refugee found to have provided support for terrorist causes could be subject to
general rules disallowing movement outside his town of residence and requir-
ing twice weekly reporting to police because “the Geneva Convention . . .
confirms that refugees have obligations to conform to the laws and regulations
of the State in which they seek protection.”372 Because the internal movement
of refugees was limited only by a measure that is generally applied to all non-
citizens,373 the requirements of Art. 26 were met.374 In contrast, Israel’s
invocation of security and safety concerns to detain only asylum-seekers375
was unlawful since the policy was not applicable to all foreign citizens.
It was in particular noted by the drafters that refugees would be required to
respect “the existence in most countries of frontier or strategic zones, access to
which [is] forbidden to aliens.”376 As Grahl-Madsen suggests, refugees may

370
Art. 26 “does not . . . indicate whether particular restrictions are compatible with the rights
granted in article 26 as long as they apply, in essence, in a non-discriminatory manner to
refugees and other aliens alike”: Zieck, “Freedom of Movement,” at 83.
371
See text at note 315.
372
HT v. Land Baden-Württemberg, Dec. No. C-373/13 (CJEU, June 24, 2015), Opinion of the
Advocate General, at [109].
373
See Chapter 3.2.1.
374
The Turkish representative to the Ad Hoc Committee posed a question of direct contem-
porary relevance to many states. He “wondered what the position would be in the case of
a State which, having adopted a very liberal attitude with regard to aliens, who were subject
to no restrictions of time or place, received refugees and wished in some way to restrict the
conditions of residence of those refugees. Such a State might be prompted to modify its
legislation concerning aliens, which would be a highly regrettable measure”: Statement of
Mr. Kural of Turkey, UN Doc. E/AC.32/SR.15, Jan. 27, 1950, at 19. No reply was offered.
While the risk posed was real at the time of the Convention’s drafting, the subsequently
enacted Art. 12 of the Civil and Political Covenant constrains the risk of downgrading the
mobility rights of non-citizens generally in order to be able lawfully to restrict the
movements of refugees: see text at note 383 ff. Mr. Kural’s intervention is helpful as
a clear indication that it was understood by the drafters that the approach taken to Art. 26
would allow no room for refugee-specific limitations.
375
See text at notes 299–300.
376
Statement of Mr. Kural of Turkey, UN Doc. E/AC.32/SR.15, Jan. 27, 1950, at 14.
A limitation of this kind can also be applied to refugees, assuming that it is not itself
found to infringe the general duty not to discriminate against non-citizens, including
refugees: see Chapter 1.5.5. Marx thus views it as unexceptional that a refugee might be
subject to rules that aliens generally “may need a special license to move to overcrowded
places or to go to restricted areas”: Marx, “Article 26,” at 1149.

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 5.2 f reedom of residence a nd interna l movement 879

also be subject to general rules which impose limits on freedom of movement

“because of a natural catastrophe, or because of a rebellion, civil war or large
scale police operation, that is to say areas where strangers may be in the way, or
where their safety cannot be guaranteed.”377 But again, the constraints must
not be targeted solely at refugees. The lawfulness of any effort to exclude
refugees from border areas prone to armed conflict thus depends on the
scope of the prohibition. So long as all persons, or at least all non-citizens,
are excluded from that area, refugees may similarly be barred from entry. But if
the prohibition is targeted solely at refugees, it is in breach of the Refugee
Convention. As a matter of logic and fairness, this duty not to stigmatize
refugees makes good sense. While there are often good reasons for
a government to deny a right of entry into, or residence in, a given place, it is
difficult to see how the fact of being a refugee – as contrasted with simply being
a person, or at least a non-citizen – can be relevant to the imposition of
a categorical exclusion of this very fundamental freedom.378
While the general rule is thus that lawfully present refugees may be subject
to the same limits on freedom of movement and residence as other non-
citizens, there are two constraints on that principle.
First, because freedom of movement and residence may be limited under
Art. 26 only in accordance with “any regulations applicable to aliens generally
in the same circumstances [emphasis added],” the Refugee Convention requires
the non-mechanistic application to refugees of even limits routinely applied to
other non-citizens. This form of words requires states to temper the applica-
tion to refugees of generally applicable rules in order to compensate for any
disadvantages faced by refugees in consequence of their refugeehood – for
example, because of the urgency of flight, the severing of ties with the home
state, or the inability to plan for relocation.379 Thus, if a reception country
normally limits the freedom of internal movement to aliens able to produce
a satisfactory security attestation from their country of origin, or grants non-
citizens the right to choose their place of residence only after a certain period of
residence or sojourn in the host state, it must make some dispensation in
administering those rules for refugees whose situation makes perfect compli-
ance an untenable proposition. Malawi’s rule requiring possession of a (very
expensive) permit to be able to work380 – thus effectively confining most
refugees to camps in order to access the necessities of life – is a clear example

377
Grahl-Madsen, Commentary, at 111.
378
“Without the freedom to move and to take up residence without official permission,
personal freedom would indeed be curtailed”: A. Grahl-Madsen, “Article 13,” in A. Eide
et al. eds., The Universal Declaration of Human Rights: A Commentary 203 (1992), at 205.
In particular, any distinction in the freedom of movement enjoyed by citizens and that
allowed aliens would have to be consistent with the duty of non-discrimination: See text at
note 419.
379
See Chapter 3.2.3. 380 See text at note 317.

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of a general norm which, if strictly applied, would fail to take account of the
general inability of refugees (relative to other non-citizens) to have planned
and saved funds in anticipation of their new circumstances. Indeed, the UN
Human Rights Committee has “express[ed] . . . concern that restrictions are
imposed on the freedom of movement of asylum-seekers with temporary
refugee status,”381 and thus “condemned blanket rules which restrict the
movement of all asylum-seekers, indicating that such restrictions can be
imposed only after consideration of each particular asylum-seeker’s
situation.”382
Second and more generally, Art. 12 of the Civil and Political Covenant
delimits the general right of states to control the freedom of internal movement
and residence of non-citizens lawfully inside a state’s territory.383 This is a right
that “relates to the whole of the territory of a state, including all parts of
a federal state,”384 and which imposes both positive and negative duties such
that “[t]he state must ensure that [free movement] rights are protected not only
from public but also from private interference.”385 The Human Rights
Committee has insisted on a broad understanding386 of the right to move
and to choose one’s residence freely, finding for example that a “system of
mandatory registration at the place of residence which is a prerequisite for
residence, employment, acquisition of real estate and access to health
services . . . may interfere with the enjoyment of rights under Article 12.”387
Because most aliens cannot insist on a right of entry into a foreign state,388 it
is sometimes suggested that non-citizens may “bargain away” their rights
under Art. 12 by assenting to conditions of entry which deny them freedom
381
UN Human Rights Committee, “Concluding Observations: Lithuania,” UN Doc. CCPR/
C/79/Add.87, Nov. 6, 1997, at [15].
382
Joseph and Castan, ICCPR, at 399.
383
See generally UN Human Rights Committee, “General Comment No. 27: Freedom of
Movement” (1999), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at 173.
384
N. Jayawickrama, The Judicial Application of Human Rights (2017) (Jayawickrama,
Judicial Application), at 456.
385
Ibid. at 453.
386
The Committee has determined, however, that Art. 12 “does not have extraterritorial
application . . . [T]he State party cannot therefore be held responsible for [its] violation if
committed outside the territory and jurisdiction by another State”: ZH v. Denmark, HRC
Comm. No. 2602/2015, UN Doc. CCPR/C/119/D/2602/2015, decided Mar. 27, 2017,
at [6.4].
387
UN Human Rights Committee, “Concluding Observations: Turkmenistan,” UN Doc.
CCPR/C/TKM/CO/1, Apr. 19, 2012, at [12].
388
But persons who “because of [their] special ties to or claims in relation to a given country
cannot be considered to be a mere alien,” including in particular “long-term residents,
including but not limited to stateless persons arbitrarily deprived of the right to acquire the
nationality of the country of such residence,” may invoke the right to enter their “own
country” under Art. 12(4) of the Civil and Political Covenant: UN Human Rights
Committee, “General Comment No. 27: Freedom of Movement” (1999), UN Doc. HRI/
GEN/1/Rev.7, May 12, 2004, at [20].

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 5.2 f reedom of res idence and internal movement 881

of internal movement or residence.389 This is a difficult position to justify in

law, based as it is on the notion that individuals may somehow elect to decline
rights which are explicitly defined to be inalienable.390 But this logic would in
any event not apply to refugees:391 by virtue of the non-negotiability of access
for refugees392 and the presumptive lawfulness of a refugee who has met a state
party’s procedural requirements for verification of refugee status393 any limits
on a refugee’s freedom of movement or residence derived from rules generally
applicable to all aliens must meet the requirements of Art. 12 of the Civil and
Political Covenant.
While the constraints on permissible limitation set by Art. 12 of the
Covenant are broad, they are not limitless.394 For example, a limitation may
be imposed where necessary “to protect national security,” now understood to
include measures necessary to avoid an objectively reasonable, real possibility
of directly or indirectly inflicted substantial harm to the host state’s most basic
389
Schabas suggests, without any analysis, that “the lawful residency of non-nationals may be
limited to a part of a State’s territory, such that the freedom of movement and residency is
locally restricted”: Schabas, Nowak’s CCPR Commentary, at 304. The view of the UN
Human Rights Committee on this issue is awkwardly framed. “Consent for entry may be
given subject to conditions relating, for example, to movement, residence and employ-
ment. A State may also impose general conditions upon an alien who is in transit.
However, once aliens are allowed to enter the territory of a State party they are entitled
to the rights set out in the Covenant”: UN Human Rights Committee, “The Position of
Aliens under the Covenant” (1986), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [6].
This formulation could be read to suggest that the non-citizen (once allowed to enter the
state’s territory) is able to refuse to comply with terms or conditions of admission which
conflict with Art. 12.
390
“The States Parties to the present Covenant, considering that, in accordance with the
principles proclaimed in the Charter of the United Nations, recognition of the inherent
dignity and of the equal and inalienable rights of all members of the human family is the
foundation of freedom, justice and peace in the world . . . [a]gree upon the following
articles [emphasis added]”: Civil and Political Covenant, at Preamble. It is difficult to
imagine anyone making the argument that a non-citizen could agree to become a slave, or
to be subjected to cruel or inhuman treatment, in exchange for permission to enter
a foreign state’s territory. Yet under the Covenant, the only legal difference between
these rights and Art. 12 is that the latter is derogable during time of national emergency,
not a distinction which is relevant to the question of renouncing inalienable rights.
391
Any effort to condition access to protection on the refugee’s preparedness to accept
constraints on freedom of movement or residence is unlawful because refugees, unlike
most non-citizens, have a legal right to claim protection in a state party under the terms of
the Refugee Convention: see Chapter 4.1 at note 132.
392
See Chapter 4.1.2 at note 215.
393
Refugees, including those awaiting the results of verification of their status, are by
definition “lawfully in” the reception state: see Chapter 3.1.3 at note 129 ff.
394
“The following common measures most likely constitute permissible restrictions on
freedom of movement: traffic safety rules, reasonable restrictions on access to nature
reserves or animal sanctuaries, earthquake or avalanche zones, quarantine zones, or areas
of civil unrest, and, of course, prohibitions on unlicensed access to private property”:
Joseph and Castan, ICCPR, at 407.

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interests, including the risk of an armed attack on its territory or its citizens, or
the destruction of its democratic institutions.395
Restrictions on freedom of movement may also be imposed where necessary
to protect public order, a notion that – while historically quite fungible396 – has
been determined by the Court of Justice of the European Union to “presuppose[],
in any event, the existence, in addition to the perturbation of the social order
which any infringement of the law involves, of a genuine, present and suffi-
ciently serious threat affecting one of the fundamental interests of society
[emphasis added].”397 In considering the permissibility of the German system
of assigning persons seeking protection to live in a specific region,398 argued
by the government to be a critical means of distributing fiscal burdens and of
avoiding social tensions,399 the Court rejected the sufficiency of the fiscal
argument even as it left the door open to the argument that the facilitation
of social integration might suffice as a justification in some circumstances to
impose a constraint on the presumptive right to choose one’s place of
residence.400 Under this interpretation, the Sudanese401 and Mozambican402
decisions to relocate refugees from camps where they had lived for many years
to a place where self-sufficiency was possible403 might be justifiable on public
order grounds.404 But Greece’s indefinite confinement of refugees arriving at
395
See Chapter 3.5.1 at note 668 ff. For example, the Danish delegate to the Ad Hoc Committee
which drafted the Refugee Convention noted that “Denmark and Czechoslovakia, for
example, would undoubtedly have hesitated to admit German refugees in 1938 if they had
been obliged to allow them to settle in areas already inhabited by minorities, whose ranks
would, in the first place, have been swelled by the refugees and in whose political activity
against the unity of the country the refugees might subsequently have participated”: Statement
of Mr. Larsen of Denmark, UN Doc. E/AC.32/SR.15, Jan. 27, 1950, at 16.
396
See Schabas, Nowak’s CCPR Commentary, at 319–321.
397
HT v. Land Baden-Württemberg, Dec. No. C-373/13 (CJEU, June 24, 2015), at [79]; JN
v. Netherlands, Dec. No. C-601/15 PPU (CJEU, Feb. 15, 2016), at [65]; K v. Netherlands,
Dec. No. C-331/16 (CJEU, May 2, 2018), at [41]. But “the purpose for interference does
not relate to the specific ‘ordre public’ of the state concerned but rather to an international
standard of the democratic society. For instance, the far-reaching restrictions on freedom
of internal movement and residency for reasons of apartheid that were proposed by South
Africa . . . not only contravened the prohibition of discrimination under Arts. 2(1) and 26
in conjunction with Art. 12, but also the international ‘ordre public’ under Art. 12(3)”:
Schabas, Nowak’s CCPR Commentary, at 319.
398
See text at note 307.
399
Kreis Warendorf v. Ibrahim Alo and Amira Osso v. Region Hannover, Dec. Nos. C-443/14
and C-444/14 (CJEU, Mar. 1, 2016), at [12], [21].
400
Ibid. at [56], [62]–[64]. 401 See text at note 292. 402 See text at note 302.
403
Ibid.
404
Beyond national security and public order concerns, states may also limit freedom of
movement where required by considerations of “public health or morals or the rights and
freedoms of others.” Thus, a poor country like Sudan might alternatively suggest that the
forcible relocation of refugees to areas where they could meet their own subsistence needs
was dictated by the need to avoid a huge drain on their resources, thus enabling them to
meet the basic needs of their own citizens.

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its islands in order to bolster the viability of their relocation to Turkey or

another country405 would be difficult to see as addressing a serious threat to
Greece, much less one that impacts a fundamental interest of society.
Beyond national security and public order, Art. 12(3) allows limitations only
where necessary to protect “public health or morals or the rights and freedoms
of others.”406 It is thus difficult to see how European Union restrictions on the
residence and movement of refugee claimants in order simply to advance the
“public interest,” much less to enhance “swift processing and effective moni-
toring” of refugees,407 can be brought within its scope. Such overly broad
formulations may in any event well infringe the duty to ensure
that the restrictions . . . not impair the essence of the right; the relation
between right and restriction, between norm and exception must not be
reversed. The laws authorizing the application of restrictions should use
precise criteria and may not confer unfettered discretion on those charged
with their execution.408
Critically, even if the goals of a given restriction on movement or residence can
be linked to one of the approved purposes defined by the Covenant, the
restriction must still meet Art. 12(3)’s quite demanding legal provisos.
First and most basic, a restriction is valid only if it is “provided in law.” As the
Human Rights Committee has held, “[t]he law itself has to establish the conditions
under which the rights may be limited.”409 This is in line with the appraisal that
“restrictions under Art. 12(3) must be set down by the legislature itself . . . Mere
administrative provisions are insufficient.”410 As such, the informality of the mass
“round-ups” and removals of Somali refugees living in Nairobi411 would, even if
otherwise lawful, not meet the standard of the Civil and Political Covenant.
Second, the legal restriction must be substantively justifiable as “necessary”
to meet one of the listed goals. This language, intended by the drafters of the
Covenant to be intentionally strict, requires that a restriction on freedom of
movement or residence be objectively justifiable as essential to one of the
approved purposes:412

405
See text at note 303. 406 Civil and Political Covenant, at Art. 12(3).
407
See text at note 309.
408
UN Human Rights Committee, “General Comment No. 27: Freedom of Movement”
(1999), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [13].
409
Ibid. at [12].
410
Schabas, Nowak’s CCPR Commentary, at 314. He concludes that “[a] broad interpretation
that . . . seeks to sweep so-called ‘executive legislation’ or administrative provisions under
the term [‘prescribed by law’] would . . . correspond with neither the purpose of
a limitation clause nor the intentions of its drafters”: ibid. at 315.
411
See text at note 287.
412
“A restriction on this right is . . . consistent with the limitation clause in Art. 12(3) not
when the State concerned believes it serves one of the listed purposes for interference but
rather when it is necessary for achieving this purpose. Despite the broad discretion

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 884 5 r i g ht s o f re f u g e e s l a w f u l l y p r e s e n t

Article 12, paragraph 3, clearly indicates that it is not sufficient that the
restrictions serve the permissible purposes; they must also be necessary to
protect them. Restrictive measures must conform to the principle of
proportionality; they must be appropriate to achieve their protective
function; they must be the least intrusive instrument amongst those
which might achieve the desired result; and they must be proportionate
to the interest to be protected.
The principle of proportionality has to be respected not only in the law
that frames the restrictions, but also by the administrative and judicial
authorities in applying the law.413
The highly circumscribed nature of the right to apply restrictions has also been
insisted upon by the Court of Justice of the European Union. The Court
determined that even restrictions on freedom of movement for reasons of
national security or public order must truly be “strictly necessary”414 and a “last
resort,”415 meaning that an “individual assessment of each case . . . [makes
clear that] other less coercive alternative measures cannot be applied
effectively.”416 As such, the rigidly operated Israeli “open” detention center
at Holot417 – even if it were not already unlawful because it is aimed specifically
at refugees, and even if the national security justification could somehow be
established – would still fail the necessity requirement since constraints are
applied generically and without regard to the risks (or lack thereof) posed by
a particular refugee.
Third, the restriction must be one that is consistent with the general rights
regime established by the Covenant (“and are consistent with the other rights
recognized in the present Covenant”).418 The drafters were particularly con-
cerned that any limitation on freedom of movement – even if legally sanc-
tioned and objectively justifiable as necessary to meet one of the approved

accorded the national legislature, the requirement of necessity is subject to an objective

minimum standard, which may be subsequently reviewed by the [UN Human Rights]
Committee”: Schabas, Nowak’s CCPR Commentary, at 317.
413
UN Human Rights Committee, “General Comment No. 27: Freedom of Movement”
(1999), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [14]–[15]. Indeed, the Committee
has recently insisted that the assessment of proportionality “requires a value assessment,
weighing the nature and detrimental impact of the interference on the exercise of the right
against the resultant benefit to one of the grounds for interfering. If the detriment
outweighs the benefit, the restriction is disproportionate and thus not permissible”: UN
Human Rights Committee, “General Comment No. 37: Article 21, Right of Peaceful
Assembly,” UN Doc. CCPR/C/GC/37, July 23, 2020, at [40].
414
JN v. Netherlands, Dec. No. C-601/15 PPU (CJEU, Feb. 15, 2016), at [56].
415
Ibid. at [63]. 416 Ibid. at [61]. 417 See text at notes 299–300.
418
“The permissible limitations which may be imposed on the rights protected under article
12 . . . are governed . . . by the need for consistency with the other rights recognized in the
Covenant . . . [T]o be permissible, restrictions must . . . be consistent with all other rights
recognized in the Covenant”: UN Human Rights Committee, “General Comment No. 27:
Freedom of Movement” (1999), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [2], [11].

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 5.2 f r e e d o m o f r e s i d e n c e an d i nt e r n a l m o v e m en t 885

goals – must nonetheless not violate the duty of non-discrimination.419 This

preoccupation has been affirmed by the Human Rights Committee:
[I]t would be a clear violation of the Covenant if the rights enshrined in
article 12, paragraphs 1 and 2, were restricted by making distinctions of
any kind, such as race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status.420
The general duty to ensure internal freedom of movement to all lawfully
present persons, including refugees, is thus nicely balanced by permissible
limitations that may be relied upon to ensure the host state’s safety and
security. For example, the Human Rights Committee considered the applica-
tion of Art. 12 of the Covenant in the context of a complaint by a Tunisian
refugee in France. The complainant was co-founder of the political movement
Ennahdha, and fled Tunisia where he was sentenced to death by trial in
absentia. After having his status recognized by France, it came to light that
the refugee was an active supporter of groups which engaged in violence
against civilian populations. Rather than seeking to expel him on public
security grounds, the decision was made to confine him to the Digne-les-
Bains region, and to require him to report daily to police there. This limitation
on his internal freedom of movement was upheld by the Committee, though
clearly only on the basis of a determination that it was a restriction that was not
unduly broad, and which was open to careful scrutiny by national courts:
[T]he State party produced evidence to the domestic courts that
Mr. Karker was an active supporter of a movement which advocates
violent action. It should also be noted that the restrictions of movement
on Mr. Karker allowed him to reside in a comparatively wide area.
Moreover, the restrictions on Mr. Karker’s freedom of movement were
examined by the domestic courts which, after reviewing all the evidence,
held them to be necessary for reasons of national security.421

419
Schabas, Nowak’s CCPR Commentary, at 319. The meaning of the duty of non-
discrimination is canvassed in depth in Chapter 2.5.5. For example, “EU law is far from
being in conformity with . . . Art. 26 [of the Refugee Convention], since Art. 7, para. 1 of
the Reception Directive, although it accords to asylum seekers the right to ‘move freely
within the territory,’ additionally, entitles Member States to limit such right to ‘an area
assigned to them’ by the Member State . . . This provision can thus hardly be perceived to
be in accordance with Art. 26 of the 1951 Convention”: Marx, “Article 26,” at 1163.
420
UN Human Rights Committee, “General Comment No. 27: Freedom of Movement”
(1999), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [18].
421
Karker v. France, HRC Comm. No. 833/1998, UN Doc. CCPR/C/70/D/833/1998, decided
Oct. 26, 2000, at [9.2]. See also Celepli v. Sweden, HRC Comm. No. 456/1991, UN Doc.
CCPR/C/51/D/456/1991, decided Mar. 19, 1993, in which it was determined that it was
reasonable to confine a non-citizen terrorist suspect to his home town of 10,000 persons,
and to require him to report to the police three times weekly.

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In sum, host governments enjoy reasonable latitude lawfully to limit the

freedom of movement and residence of refugees arriving in their territory.
Under Art. 31(2), both persons arriving as part of a mass influx and individuals
seeking recognition of refugee status whose identity and circumstances of
arrival are under investigation may lawfully be detained on a strictly provi-
sional basis. But once the refugee is lawfully present – which includes admis-
sion to a procedure for verification of refugee status, as well as so-called
temporary admission and failure to establish a system to vet refugee status –
Art. 26 requires the termination of all refugee-specific limits on choice of
residence and freedom of movement. From that point, only constraints applied
to aliens generally may be enforced against refugees, and even then only in
a way that takes account of the specificity of the refugee’s predicament. Any
such limits are moreover only validly enforced to the extent they are based on
unambiguous legislative authority, are objectively necessary to attain one of the
purposes defined by the Civil and Political Covenant, and are administered in
a non-discriminatory way that is consistent with respect for civil and political
rights.

5.3 Self-Employment
There is little doubt that the trauma of the refugee experience can be exacer-
bated by enforced idleness and dependence.422 Ohaegbulom has written of the
refugee’s need “to become a whole person again, one who earns his own living
and the respect of those around him.”423 Simply put, “[s]elf-reliance can
improve the refugee’s self-image and therefore his or her ability to cope with
being a refugee.”424 More fundamentally, the refugee’s ability to engage in
productive economic activity in the asylum country may also be critical to
survival. While international human rights law has evolved to recognize the
duty of states affirmatively to assist all persons under their authority – includ-
ing refugees – to access the necessities of life,425 refugees too often find that in
practice they must fend for themselves.

422
Gorman has argued against what he calls the “Palestinization” of refugees who are forced
to remain in dependent situations and are denied the opportunity to pursue self-reliance
through economic activity, resulting in their alienation, resentment, and exasperation:
R. Gorman ed., Refugee Aid and Development (1993), at 8. See also D. Miserz ed.,
Refugees – The Trauma of Exile: The Humanitarian Role of the Red Cross and the Red
Crescent (1987), at 92.
423
F. Ohaegbulom, “Human Rights and the Refugee Situation in Africa,” in G. Shepherd and
V. Nanda eds., Human Rights and Third World Development (1985), at 197.
424
S. Forbes Martin and E. Copeland, Making Ends Meet? Refugee Women and Income
Generation (1988), at 3. See generally A. Betts et al., Refugee Economies: Forced
Displacement and Development (2016).
425
See Chapter 4.4.

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 5.3 se l f - e m p l o y m e n t 887

The focus of this section is the right of refugees to engage in independent

economic activity. Under the Refugee Convention’s structure of incremental
entitlement, this right accrues at an earlier stage than the right of refugees
either to be employed, or to engage in professional practice.426 Because these
two means of earning a livelihood may lawfully be withheld from refugees for
a period of time, the ability of refugees to survive through their own efforts –
for example, by raising food for consumption or sale, trading, or launching
their own business – takes on a particular importance for refugees awaiting
a decision on refugee status recognition or on access to some alternative
mechanism of durable protection. For example, Colombian refugees arriving
to seek protection in Venezuela frequently self-settled in border areas from
which they could engage in cross-border trade as a means of survival.427
In the less developed world, the right to engage in agricultural activities is
usually the most pressing concern. There are sometimes blunt refusals to allow
refugees to farm. Sudan, for example, not only denied refugees the right to own
land or other property, but imposed strict restrictions on freedom of move-
ment, making it difficult to “access . . . rural labor markets and land, causing
inadequate livelihood options and increasing [refugees’] dependency on
aid.”428 Kenya confines refugees to camps, refusing them the right to work or
to establish businesses. A 2017 bill would have reversed this policy by author-
izing the use of land for farming and business by refugees, but was vetoed by
the President due to a lack of “public input” from local farmers living near the
camps.429 In Turkey, restricted access to land ownership430 has contributed to

426
Each of these rights accrues only once a refugee is “lawfully staying” in the country of
reception, while the right to engage in self-employment is owed to refugees who are simply
“lawfully in” a state party. See generally Chapters 3.1.3 and 3.1.4 for an elaboration of the
meaning of these terms. The substance of the rights to engage in employment and
professional practice is detailed in Chapters 6.1 and 6.2.
427
See R. Zetter and H. Ruaudel, “Refugees’ Right to Work and Access to Labor Markets – An
Assessment: Part I, Synthesis,” Knomad, Sept. 2016 (Zetter and Ruaudel, “Right to Work:
Part I”), at 24.
428
R. Zetter and H. Ruaudel, “Refugees’ Right to Work and Access to Labor Markets – An
Assessment: Part II, Country Cases,” Knomad, Sept. 2016 (Zetter and Ruaudel, “Right to
Work: Part II”), at 164. As a result, “[i]n eastern Sudan, employment opportunities and
income sources outside the agricultural sector are few. Camp refugees lack employment,
and while some opportunities exist in farms, access to agricultural lands remains limited,
and refugees are subject to movement restrictions. Furthermore, poorer households,
particularly women and youth, tend to lack the capacity to sustain profitable activities
because of lack of access to land; unreliable rainfall and insufficient water resources; lack of
adequate tools, equipment, and technologies; and limited coverage of extension services”:
ibid. at 167.
429
“Uhuru Rejects Bill Giving Refugees Right to Jobs and Land,” Business Daily, Nov. 8, 2017.
430
See e.g. O. Kadkoy, “‘You Shall Not Buy’: Syrians and Real Estate Ownership in Turkey,”
Hurriyet Daily News, Nov. 21, 2016.

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precarious squatting practices among Syrian refugees and exploitative labor at

the hands of local farm owners in the agriculture industry.431
In contrast, Guinea allowed traditional land allocation systems – under
which land is made available by appeal to a village “friend,” with no govern-
ment or other involvement – to function as Liberian refugees arrived in that
country, leading to a net increase in overall food production.432 More affirma-
tive efforts have been undertaken by Uganda: as part of its initiative to promote
refugee self-sufficiency and economic growth, the government provides refu-
gees with small plots of land on which to live and farm, imposes no restrictions
on movement, and supports courses on agriculture and other skills.433 Chad
has similarly promoted efforts to engage in income-generating and agricultural
activities by issuing plots of land to refugees in Koutoufou.434 Such efforts align
with the UNHCR’s “graduation model”:
The model supports refugees’ immediate needs while building the foun-
dation for longer-term human-capital investments. Developed in rural
Bangladesh, the model is now being introduced into urban environments
in Ecuador, Egypt, and Costa Rica. The graduation model begins by
targeting the stress caused by conditions of extreme poverty, such as
food insecurity. In the second stage, participants develop financial disci-
pline by creating a specific savings plan and learning about financial
service providers. They then receive training focused on asset preservation
and entrepreneurial skills, as well as health and social issues. Finally,
participants are matched with sustainable economic activities based on
their qualifications, existing market conditions, and assets (including
available microloans).435
Some countries have taken a similarly open view of the right of refugees to
engage in handicrafts and various forms of trading or commerce. The right of
self-employment has explicitly been recognized in relation to refugee claimants
in Ecuador,436 though in practice, limited access to loans and other financial
support often restrict their ability to embark on independent ventures.437

431
E. Reidy, “Syrian Refugees in Turkey Face Uncertain Future in Informal Encampments,”
Huffington Post, Apr. 22, 2016.
432
R. Black and M. Sessay, “Forced Migration, Land-Use Change and Political Economy in
the Forest Region of Guinea,” (1997) 96 African Affairs 587, at 602–604.
433
E. Ohanusi, “Uganda Farming Classes Transform Refugees into Entrepreneurs,” Oct. 28,
2016.
434
“Called Seeds for Solutions, the programme was developed by UNHCR, the UN Refugee
Agency, and the Lutheran World Federation (LWF). It helps find the farmland and
provides tools, seeds and advice, so that the farmers can grow their own crops to sell at
market and to eat at home”: I. Diane, “Chad Farming Project Empowers Sudanese
Refugees and Locals,” Aug. 16, 2016.
435
T. Aleinikoff, “From Dependence to Self-Reliance: Changing the Paradigm in Protracted
Refugee Situations,” Transatlantic Council on Migration Policy Brief, May 2015, at 5.
436
Zetter and Ruaudel, “Right to Work: Part II,” at 24. 437 Ibid. at 25.

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France438 and Spain439 have adopted self-employment projects tailored to

refugees. Following its Supreme Court’s invalidation of an absolute prohibition
on refugee claimants engaging in work, Ireland began accepting applications
for work authorization in 2018 – but eligibility is limited to those who have
been present in Ireland for a period of at least nine months while awaiting
refugee status determination. Once granted, the permits allow employment,
including self-employment, pending a final decision on their claim.440
In contrast, other countries have taken a hard line on refugee self-employment.
Costa Rica will allow refugees to undertake self-employment, but only if the
applicant has relevant prior experience and can show that Costa Rican citizens
will not be displaced by the refugee’s business.441 Thailand subjects refugees to its
general rules prohibiting non-citizens from engaging in thirty-nine occupations,
including critical forms of self-employment such as carpentry, weaving, stone-
work, and dressmaking.442 Refugees in Botswana have complained that there are
no funds available to start up independent enterprises.443 Indeed, Botswana issued
by-laws in 2002 which deny all non-citizens the right to operate hair salons and
barber shops in the Central District – thereby depriving refugees and others of
access to one of the few successful options for self-support.444 Refugee claimants
in Tanzania are barred from undertaking even limited forms of self-employment,
and those who wish to engage in large-scale business must, like all foreigners, pay
fees ranging from US$1,000 to 3,000 for a “Class A” resident permit.445 Refugees
in India have few opportunities for entrepreneurship as grant programs are
generally “too small to help refugees establish their own businesses and cover
equipment start-up needs.”446 Zambia has made it practically impossible for
refugees lawfully to start a business:

438
K. Foti and A. Fromm, “Approaches to the Labour Market Integration of Refugees and
Asylum Seekers,” (2016) Eurofound 31–32 (Foti and Fromm, “Labour Market
Integration”).
439
Ibid.
440
C. Finn, “Asylum Seekers will be Allowed to Work in Ireland under New Rules,” The
Journal, June 27, 2018.
441
“To assess this displacement factor, a refugee official must make a geographical recon-
naissance of the barrio in which the refugee lives, and generally works, to see if there are
Costa Ricans engaged in the same trade. Where there are Costa Rican businesses (usually
small workshops attached to living quarters) of the type requested by the refugee, the
government may deny the work permit. This procedure ensures that the refugee business
does not compete with Costa Rican business”: E. Larson, “Costa Rican Government Policy
on Refugee Employment and Integration, 1980–1990,” (1992) 4(3) International Journal
of Refugee Law 326, at 338.
442
Joint Foreign Chambers of Commerce in Thailand, “Occupations and Professions
Prohibited for Foreign Workers.”
443
Botswana Daily News, Sept. 13, 2000. 444 Gazette (Gabarone), July 3, 2002.
445
Asylum Access, “United Republic of Tanzania Universal Periodic Review – 2nd Cycle,”
Sept. 21, 2015, at 5–6.
446
Zetter and Ruaudel, “Right to Work: Part II,” at 53.

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 890 5 ri g ht s of re f u g e e s l a w f u l l y p r e s e nt

The Immigration Department, the Department of Labour and the Zambia

Development Agency (ZDA) further requires refugees and other non-
nationals who wish to pursue self-employment as private sector
investors . . . to demonstrate proof to invest up to US$250,000 if they are
starting a new company and US$150,000 if they are joining an existing
company in Zambia. These are tough conditions for most refugees to meet
given the fact that most of them left their respective countries under
unplanned and very difficult conditions. To ameliorate the situation,
Zambia Immigration Department, through administrative action, have
moderated the minimum investment threshold for refugees to, at least,
K150,000 (i.e. about US$15,000 at current exchange rates).447
Similarly prohibitive registration costs in South Africa led to the establishment
of businesses under less formal arrangements, usually in urban areas.448 The
2012 crackdown on “illegal” businesses belonging to Limpopo’s refugee popu-
lation – an operation that was carried out without regard to whether the
targeted businesses were in fact licensed – has been, in part, attributed to this
government-imposed hardship.449 Even more bluntly, Bangladesh insists that
refugees and foreigners have no right to establish or to operate businesses,
engage in trade, or own property.450 Officials have even halted the implemen-
tation of self-sufficiency projects by humanitarian organizations in an effort to
deter new arrivals from Burma.451
447
M. Nyamazana et al., “Zambia Refugees Economies: Livelihoods and Challenges,” Study
commissioned by the UNHCR Zambia (2017), at 11.
448
“The cost of registering a business under the regular immigration procedures for business
visas is prohibitively expensive. Businesses, other than vendors, must demonstrate they
have access to about US$350,000 in cash or capital, employ at least five permanent
residents, and have proper legal documentation. To avoid such costs, some businesses
have set up semi-formally, obtaining only a business license, for a cost of about
US$225 per year”: Zetter and Ruaudel, “Right to Work: Part II,” at 151.
449
Ibid. at 152. “According to the information available to UNHCR . . . refugees and asylum-
seekers have been singled out for business closures, and their goods and produce have
been confiscated and destroyed”: UNHCR, “Expert opinion of UNHCR on issues of the
right to work for refugees and asylum-seekers,” filed in the case of South African Somali
Association v. Limpopo Department of Economic Development, Environment and Tourism,
North Gauteng High Court (South Africa), Mar. 14, 2013, at 2.
450
Zetter and Ruaudel, “Right to Work: Part II,” at 5.
451
“Although registered refugees have been provided with training opportunities to start up
small businesses in the camps, this training has offered limited prospects. In an attempt to
promote self-reliance, in 2009 the UNHCR and the International Labour Organization
conducted a joint livelihood assessment of refugees in the Kutupalong and Nayapara
refugee camps, which led to the development of a detailed self-reliance road map. This
strategy was, however, never effectively implemented because the authorities halted or
suspended projects and activities that could enable the refugees to earn an income and
acquire skills. By 2011, with the exception of rickshaw repair, income-generating activities
within the camps were banned; the authorities also closed the majority of small shops run
by the refugees and allowed only limited skills development and training opportunities to
continue. In 2012, no new training subjects were allowed despite advocacy by the UNHCR

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 5.3 self-employment 891

Under rules applicable in the European Union, states are required to allow
refugees to undertake “self-employed activities subject to rules generally
applicable to the profession and to the public service,” but only once refugee
status “has been granted.”452 There is thus no European Union rule specifically
safeguarding any right to pursue independent economic activity while
a refugee awaits adjudication of his or her asylum claim. Instead, regional
law provides only that “Member States shall ensure that applicants have access
to the labour market no later than 9 months from the date when the application
for international protection was lodged if a first instance decision by the
competent authority has not been taken and the delay cannot be attributed
to the applicant.”453 Unsurprisingly, many states have declined to provide
refugees undergoing status assessment with the right to undertake self employ-
ment. While persons awaiting status verification are in principle eligible for
self-employment in Austria and Greece, administrative and other barriers
make it difficult to secure this right in practice.454 In Switzerland, persons
awaiting status determination must wait up to 140 days to undertake self-
employment or other work.455 Denmark, France, Germany, and the United

and partners, and in 2013 the government refused permission for grants to be provided to
support refugees’ small businesses. These policies, combined with insufficient levels of
assistance, have caused malnutrition in camps”: ibid. at 5–6.
452
EU Qualification Directive (recast), Art. 26(1).
453
EU Reception Directive (recast), at Art. 15.
454
According to one report, refugee claimants in Austria “are allowed to work under
a specific ‘contract for work’ (that is, freelance jobs without a qualifying certificate or
trade license). For activities where a business license is needed, specific commercial and
occupational provisions prevail.” As a result, “[t]here is hardly any self-employment in
a regulated trade”: Foti and Fromm, “Labour Market Integration,” at 19. In Greece, “access
to the labour market is seriously hampered by the economic conditions prevailing in
Greece, the high unemployment rate, further obstacles posed by competition with Greek-
speaking employees, and administrative obstacle in order to obtain necessary document,
which may lead to undeclared employment with severe repercussions on the enjoyment of
basic social rights . . . In 2017, in order to reduce administrative obstacles to the access of
asylum seekers to the labour market, and more precisely obstacles with regards [to] the
provision of the Tax Registration Number (AFM), without which one cannot legally work,
the General Secretary of Migration Policy addressed a letter to the competent authorities,
giving instructions for a proper implementation of the law. Moreover, in February 2018,
following a decision of the Hellenic Manpower Employment Organisation (OAED), the
possibility to provide a certification from the reception facility has been added for asylum
seekers willing to register themselves at the OAED registry. Despite these positive devel-
opments, difficulties in obtaining an AFM number and unemployment cards from OAED
are still reported”: Asylum Information Database, “Country Report: Greece 2018” (2019),
at 134–135, www.asylumineurope.org, accessed Mar. 1, 2020.
455
Asylum Information Database, “Country Report: Switzerland 2018” (2019), at 80, www
.asylumineurope.org, accessed Mar. 1, 2020. Effective March 1, 2019, Art. 43 was amended
to provide that the ban lasts for the duration of the required stay in a federal reception
center, which may be as long as 140 days: Communication from C. Hrushka, Mar. 21, 2020
(on file with the author).

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 892 5 r i g ht s of re f u g e e s l a w f u l l y p r e s e n t

Kingdom simply refuse to allow refugees awaiting the results of status verifica-
tion to engage in any form of self-employment.456
Refugee Convention, Art. 18 Self-employment
The Contracting States shall accord to a refugee lawfully in their
territory treatment as favourable as possible and, in any event, not
less favourable than that accorded to aliens generally in the same
circumstances, as regards the right to engage on his own account
in agriculture, industry, handicrafts and commerce and to estab-
lish commercial and industrial companies.
This rarely invoked article of the Refugee Convention is in several respects
quite extraordinary.457 First, it is not derived from either of the usual sources,
those being prior refugee conventions and the Universal Declaration of Human
Rights. The 1951 Refugee Convention was the first international instrument to
speak to the right of refugees to undertake independent economic activity,
a notion not even explicitly codified in the subsequently drafted Human Rights
Covenants.458 Second, particularly in view of its legal novelty, it is astonishing
that the drafters of the Refugee Convention viewed it as essentially uncontrover-
sial, confining most of their discussions on Art. 18 to the question of the
appropriate contingent standard for measuring compliance with the right. Yet
as an explicit acknowledgment of the right to participate in entrepreneurial
activities at the heart of the market economy, this provision is of potentially
enormous importance to refugees. It is, in this sense, a critical complement to the
right of refugees to acquire, and to deal with, both movable and immovable forms
of private property, and to be treated fairly under host state taxation schemes.459

456
I. Martin et al., “From Refugees to Workers: Mapping Labour-Market Integration Support
Measures for Asylum Seekers and Refugees in EU Member States, Volume I: Comparative
Analysis and Policy Findings,” Bertelsmann Stiftung (2016), at 23, 40. See also A. Fink and
K. Kappner, “Asylum Migration and Barriers to Labor Market Entry: Policy
Recommendations for Easier Access,” IREF Policy Paper No. 2015-1, Dec. 2015, at 11–14.
457
“Of the three [Refugee Convention] rights relating to gainful employment, Art. 18 is the
most favourable in terms of the fact that it is, in most instances, granted earlier than the
other rights and further that it requires States parties to provide ‘as favourable [treatment]
as possible’”: A. Edwards, “Article 18,” in A. Zimmermann ed., The 1951 Convention
Relating to the Status of Refugees and its 1967 Protocol: A Commentary 973 (2011)
(Edwards, “Article 18”), at 974.
458
The closest provision is Art. 6 of the Economic, Social and Cultural Covenant, which
affirms “the right of everyone to the opportunity to gain his living by work which he freely
chooses or accepts”: International Covenant on Economic, Social and Cultural Rights, 993
UNTS 3 (UNTS 14531), adopted Dec. 16, 1966, entered into force Jan. 3, 1976 (Economic,
Social and Cultural Covenant), at Art. 6(1). Importantly, in 2005 the Committee on
Economic, Social and Cultural Rights adopted the view that “work” includes self-
employment: See text at note 503.
459
The rights of refugees to own property and to be dealt with equitably under taxation
schemes are canvassed at Chapters 4.5.1 and 4.5.2.

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 5.3 se l f - e m p l o y m e n t 893

The rationale for the novel provision was blandly said to be that “a certain
number of refugees are handicraft workers with special knowledge and occu-
pational skills, or manufacturers familiar with manufacturing processes pecu-
liar to their country of origin.”460 The case for allowing refugees to make use of
their entrepreneurial talents appears to have been considered self-evident.461
Nor was there any real consideration given to the substantive scope of Art. 18,
including not only the right of refugees to participate in “agriculture, industry,
handicrafts and commerce” but also “to establish commercial and industrial
companies.” The latter provision clearly grants refugees the right to incorpor-
ate their enterprises, thereby securing the usual benefits of limited liability.
This list is precisely the same as that proposed in the Secretary-General’s initial
draft,462 and was not even debated by the drafters.463 The competing French
version of Art. 18, which would have omitted the right of refugees to engage in
agricultural self-employment,464 was withdrawn even before debate
commenced.465 There can therefore be no question of excluding agriculture
from the range of permissible self-employment for refugees. Yet this is effectively
the case in Sudan, where refugee-specific prohibitions on land ownership466 –
themselves of questionable legality under Art. 13467 – mean that refugees are de
facto unable to start farms. Kenya’s refusal to allow refugees to farm468 and
Turkey’s bar on land ownership by Syrians469 are similarly problematic. Indeed,
because Turkey’s bar on Syrian land ownership is based on concerns about the
territorial ambitions of the very state the refugees have fled,470 it raises concerns
that Turkey has also failed to respect the prohibition on exceptional measures set
by Art. 8 of the Refugee Convention.471 Guinea’s decision to allow refugees access
to the traditional land allocation system472 is, in contrast, very much in line with
what the drafters intended.

460
Secretary-General, “Memorandum,” at 35.
461
Edwards suggests that “[a] separate right was necessary because in some jurisdictions the
right to engage in self-employment was reserved only to nationals or restrictions were
imposed, such as the passage of time or the length of visa”: Edwards, “Article 18,” at 975.
462
Secretary-General, “Memorandum,” at 35.
463
Grahl-Madsen suggests only that “[i]t is apparent that the expression used [‘self-employment’]
must be given the widest possible interpretation”: Grahl-Madsen, Commentary, at 76.
464
France, “Draft Convention,” at 6.
465
Statement of the Chairman, Mr. Chance of Canada, UN Doc. E/AC.32/SR.13, Jan. 26,
1950, at 13.
466
See text at note 428. 467 See Chapter 4.5.1. 468 See text at note 429.
469
See text at note 430.
470
“Turkey . . . felt that Syria might try to stir up instability . . . The law banning Syrian land
purchases in Turkey was therefore put in place to prevent Syrians from buying back land
in Hanay and somehow trying to reassert sovereignty over the province in that way”:
O. Kadkoy, “‘You Shall Not Buy’: Syrians and Real Estate Ownership in Turkey,” Hurriyet
Daily News, Nov. 21, 2016.
471
See Chapter 3.5.2. 472 See text at note 432.

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The drafting history of Art. 18 is especially helpful to understand the level of

attachment at which the right to engage in self-employment inheres. The proposal
was initially that only refugees “regularly resident” (résidant régulièrement) in
a state would be entitled to undertake independent economic activity.473 While
that level of attachment, subsequently translated into English as “lawfully
staying,”474 still governs the rights to undertake employment and to engage in
professional practice,475 the text of Art. 18 was amended by the Ad Hoc
Committee to grant the right to self-employment at an earlier stage, namely
when a refugee is simply “lawfully in” (se trouvant régulièrement sur) the territory
of a state party.476 In view of this clear, if unremarked, change, there can be little
doubt that all refugees who have regularized their presence in the host state –
including those whose short-term presence is authorized, who have been admitted
into a process for refugee status verification, or who are present in a state party
which elects not to verify status477 – may rely on Art. 18.478 As Robinson writes,
The expression “lawfully in their [territory]” cannot be only verbally
different from “lawfully staying in the country.” It must mean in substance
something else, viz. the mere fact of lawfully being in the territory, even
without any intention of permanence, must suffice.479
In line with this understanding, the right of refugee claimants to undertake
self-employment is, for example, expressly recognized by Ecuador.480 In con-
trast, much European practice aligns with the EU Qualification Directive’s
authorization to withhold the right to engage in independent economic activity
until status has been recognized481 – a practice followed by, for example,
473
Secretary-General, “Memorandum,” at 35. 474 See Chapter 3.1.4.
475
See Chapters 6.1 and 6.2.
476
There is no record of debate on this point, the revised text having appeared for the first
time in Ad Hoc Committee, “First Session Report,” at Annex I. The point was not dealt
with in the subsequent session of the Ad Hoc Committee, nor at the Conference of
Plenipotentiaries.
477
See Chapter 3.1.3.
478
Robinson accurately observes, however, that “Art. 18 is not applicable to refugees residing
outside the country where the self-employed activity is to be exercised; applicable in such
cases is Art. 7(1), i.e. refugees not residing in the country in which they want to engage in
self-employment or establish commercial or industrial companies will be permitted to do
so only if, under the laws of the country, aliens in general, residing abroad, are authorized
to do so and under the same conditions”: Robinson, History, at 116–117.
479
Ibid. at 117. See also Weis, Travaux, at 152: “[P]hysical presence, even a temporary stay or
visit, [is] sufficient, in distinction to ‘lawfully staying,’ the terminology used in other
Articles.”
480
See text at note 436.
481
See text at note 452. It is thus not correct that “Articles 16(1) and (3) of the Qualification
Directive . . . reflect Articles 17, 18, 19 and 22(2) of the Geneva Convention”: European
Union Fundamental Rights Agency, Handbook on European Law relating to Asylum,
Borders and Immigration (2014), at [8.2.7]. The same misunderstanding was adopted by
the High Court of Ireland, which determined that “[t]he Convention does not contain any

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 5.3 se l f - e m p l o y m e n t 895

Denmark,482 France,483 Germany,484 Ireland,485 and the United Kingdom.486

Even Swiss practice, which imposes only a maximum 140-day delay on access
by refugees to self-employment,487 fails to ensure access to self-employment as
soon as lawful presence is attained.488
There is a real logic to the drafters’ decision to grant refugees early access to
independent economic activity since, absent some means of enabling refugees
to survive economically in the asylum state while awaiting a formal decision on
refugee status or other durable protection, it is clear that extraordinary hard-
ship would be inflicted on the many destitute refugees. The Refugee
Convention was, of course, drafted prior to the advent of modern social welfare
systems, and even before the elaboration of the Economic Covenant’s duty to
provide the essentials of life to all persons unable to meet their own basic
needs.489 Yet the absence of meaningful support systems for refugee claimants
continues today in many places, as noted by the South African Supreme Court
of Appeal in a case overturning the denial to asylum-seekers of the permits
needed to operate small businesses in Limpopo:490
[If] . . . a refugee or asylum seeker is unable to obtain wage-earning employ-
ment and is on the brink of starvation, which brings with it humiliation and
degradation, and that person can only sustain him- or herself by engaging in
trade, . . . such a person ought to be able to rely on the constitutional right to
dignity in order to advance a case for the granting of a license to trade.491

provision regarding access to the labour market during the asylum process, nor did the
state assume any obligation in that regard under the Convention”: NHV v. Minister for
Justice and Equality, [2015] IEHC 246 (Ir. HC, Apr. 17, 2015), at [17].
482
See text at note 456. 483 Ibid. 484 Ibid. 485 See text at note 440.
486
See text at note 456. 487 See text at note 455.
488
It is sometimes suggested that because of the “aliens generally” contingent standard
adopted (see text at note 496), refugees may be subjected to generally applicable (non-
refugee-specific) waiting periods to be eligible to engage in self-employment: see e.g.
Edwards, “Article 18,” at 980, arguing that “restrictions may be imposed requiring a pre-
determined length of stay, provided this is a requirement for all aliens generally in the
same circumstances.” While plausible, the better view is that because this type of general
condition conflicts with the explicit language in the Convention entitling refugees to
undertake self-employment once lawful presence is achieved its application would be in
breach of Art. 18. Indeed, the contingent standard for Art. 18 was adopted despite the
objection of the British representative, who had sought to subject refugees to the general
British rule under which self-employment rights might be delayed “for a certain time”
(Statements of Sir Leslie Brass of the United Kingdom, UN Doc. E/AC.32/SR.13, Jan. 26,
1950, at 13, 15, the latter indicating that given the amendment he “thought his
Government would be obliged to make a reservation”). The rejection of this approach
suggests that the article as adopted does not authorize any delay for refugees in accessing
self-employment rights once lawful presence is established.
489
See generally Chapter 4.4.1. 490 See text at note 449.
491
Somali Association of South Africa v. Limpopo Department of Economic Development,
Environment and Tourism, Dec. No. 48/2014 (SA SCA, Sept. 26, 2014), at [43]. The Court
noted, but did not base its judgment on, Art. 18 of the Refugee Convention: ibid. at [37].

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Yet the drafters were also profoundly concerned not to provide for the
economic needs of refugees at the expense of the citizenry of reception states.
The British delegate, for example, insisted that refugee rights could not com-
promise the “planned economy” of his country.492 The drafters achieved
a workable compromise of interests by authorizing governments to postpone
refugees’ access to both employment and professional practice – areas in which
the potential for conflict with the domestic labor market is probably both most
acute and most visible – while at the same time agreeing to allow refugees to
survive economically through their own entrepreneurship. In essence, refugees
are allowed to meet their needs by the generation of new economic activity,
even as they may initially be barred from competing with citizens for a share of
extant employment opportunities.493 This determination to ensure that refu-
gees have early access only to self-generated economic activity is borne out in
the only amendment to Art. 18 made at the Conference of Plenipotentiaries. At
the suggestion of the Dutch and British representatives, it was agreed that
a refugee would have the right to engage in self-employment only “on his own
account,”494 thereby clearly distinguishing this right from a right to undertake
activities approximating either employment or investment in a concern estab-
lished or operated by others.495
A true balance between respecting the need of refugees to survive econom-
ically and not subjecting the host community to immediate competition from
refugees was, however, never really established. While it was agreed that the
right to engage in self-employment would inhere at an early stage, the value to
refugees of the right was compromised by the decision to define the standard
for compliance as simply “treatment as favourable as possible and, in any
event, not less favourable than that accorded to aliens generally in the same
circumstances.” This contingent standard builds on the residual minimum
standard in Art. 7 (“the same treatment as is accorded to aliens generally”).496
It clearly disallows any restrictions on self-employment aimed strictly at

492
Statement of Sir Leslie Brass of the United Kingdom, UN Doc. E/AC.32/SR.13, Jan. 26,
1950, at 13.
493
Edwards suggests, but does not provide support for, an alternative thesis that “[a]s Art. 18
was considered to impose the least financial or other burdens on the State of the employment-
related provisions, a lower [attachment] standard was agreed [emphasis added]”: Edwards,
“Article 18,” at 978. She later acknowledges, however, that “[a]t the time of drafting, there was
concern that the economic needs of refugees not be at the expense of citizens of host States”:
ibid. at 979.
494
UN Doc. A/CONF.2/SR.9, July 6, 1951, at 19.
495
The right of refugee claimants (as persons holding rights only provisionally) to undertake
self-employment may of course give rise to practical challenges, e.g. “taking out bank
loans, employing workers, and engaging in business transactions” without a durable
status: Edwards, “Article 18,” at 978. Yet as Edwards rightly notes, these problems are
“not [problems] necessarily for refugee law, however”: ibid.
496
See Chapter 3.2.1.

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 5.3 se l f - e m p l o y m e n t 897

refugees, rather than at non-citizens generally. Thus, Art. 18 was infringed by

the Costa Rican regime under which refugees alone were denied the right to
self-employment if their activities were deemed likely to compete with indi-
genous enterprises. More generally, where there is truly generality of access by
non-citizens to self-employment or other independent economic activity – as
evinced by, for example, relevant domestic laws or practices, a pervasive
pattern of bilateral or multilateral agreements, or de facto enjoyment of the
right by most aliens – the right to engage in self-employment automatically
accrues to refugees as well.497
On the other hand, if non-citizens are only rarely allowed to engage in self-
employment, or if self-employment is strictly a special right genuinely associ-
ated with unique bilateral or similar arrangements, it is not a right that
necessarily inheres in refugees pursuant to Art. 18 of the Refugee
Convention. Thus, Botswana’s refusal to allow any non-citizen to operate
a hair salon or barber shop498 may not infringe Art. 18, since refugees are
caught by what appears to be a rule generally applicable to all non-citizens.
Under this standard, it is also clear that refugees should normally be expected
to comply with routine requirements to undertake self-employment, such as
the acquisition of a license, and be subject to the normal constraints on the
scope of such activity.499 As such, Thai rules barring non-citizens generally
from self-employment in certain fields500 may reasonably be applied to refu-
gees as well (though many forms of activity on the prohibited list – such as
carpentry, weaving, stonework, and dressmaking – would likely be difficult to
sustain as reasonable constraints in keeping with the duty of non-
discrimination).501 On the other hand, Art. 18 is not respected by the
Bangladeshi decision not only to apply to refugees the general rule prohibiting
non-citizens from trading or operating a business, but to do so in tandem with
the prohibition of externally funded self-help projects for refugees as a means
of deterring new refugee arrivals.502 Refugees may only be subject to the usual
rules governing the treatment of non-citizens, applied in the usual way – not
when leveraged in order to achieve a punitive end.
The negative consequence for refugees of assimilation to “aliens generally” –
that states may lawfully exclude non-citizens and hence indirectly also refugees
from self-employment – may, however, be less grave than it would seem. The
UN Committee on Economic, Social and Cultural Rights determined in 2005
that the right to work codified in Art. 6 of the Economic Covenant “encom-
passes all forms of work, whether independent work or dependent wage-paid
work [emphasis added].”503 Read in tandem with its more general position that
497
Ibid. 498 See text at note 444. 499 See Robinson, History, at 117.
500
See text at note 442. 501 See Chapter 1.5.5. 502 See text at notes 450–451.
503
UN Committee on Economic, Social and Cultural Rights, “General Comment No. 18: The
Right to Work,” UN Doc. E/C.12/GC/18, Nov. 24, 2005, at [6]. See also Elisabeth de Blok
v. Netherlands, CEDAW Comm. No. 36/2012, UN Doc. CEDAW/C/57/D/36/2012,

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 898 5 r i g ht s o f re f u g e e s l a w f u l l y p r e s e n t

“[a]ll persons under the jurisdiction of the State concerned should enjoy
Covenant rights . . . includ[ing] asylum seekers and refugees, as well as other
migrants, even when their situation in the country is irregular,”504 it is possible
now to argue that non-citizens – including refugees – are generally entitled to
undertake self-employment (as well as other forms of work) without
constraints.505 It would then follow that the contingent standard of the
Refugee Convention’s Art. 18 has been rendered irrelevant as a practical
matter, since refugees would under general human rights law have the same
presumptive right to undertake self-employment as citizens.506
But until and unless this novel understanding of non-citizen work rights,
including the right to self-employment, is embraced, Art. 18 of the Refugee
Convention affords critical relief from the dominant practice of excluding
non-citizens from some or all forms of self-employment. This is because Art.
18 of the Refugee Convention goes beyond requiring simple equality between
refugees and aliens generally. The drafters instead opted for what they intended
to be an intermediate contingent standard between the baseline of Art. 7 and
the assimilation of refugees to either nationals or the citizens of most-favored
states. This decision followed from the intervention of the American represen-
tative, who had criticized reliance simply on the residual contingent standard,
noting that granting refugees the same right to engage in self-employment as
foreigners generally “would confer no real benefit on refugees.”507 He therefore
“wondered whether it might not be possible to find a third solution, whereby
refugees would be granted not the most favourable treatment, but a treatment
more favourable than that given to foreigners generally.”508 The proposal met

decided Feb. 17, 2014, at [8.4], determining that “the notion of ‘all employed women’
cover[s] not only women in an employment relationship, but also those self-employed.”
504
UN Committee on Economic, Social and Cultural Rights, “Duties of States towards
Refugees and Migrants under the International Covenant on Economic, Social and
Cultural Rights,” UN Doc. E/C.12/2017/1, Mar. 13, 2017, at [3].
505
This issue is addressed in detail in Chapter 6.1.1 at note 43 ff.
506
A narrower view of the implications of the standards set by the Committee on Economic,
Social and Cultural Rights may, however, be taken. Focusing on the Committee’s view that
the only “immediate duty [is] to ensure that the essential minimum content of the
Covenant rights [is] guaranteed to all refugees and migrants under their jurisdiction”
(UN Committee on Economic, Social and Cultural Rights, “Duties of States towards
Refugees and Migrants under the International Covenant on Economic, Social and
Cultural Rights,” UN Doc. E/C.12/2017/1, Mar. 13, 2017, at [11]), the only pertinent
“core obligation” under Art. 6 is framed to require “access to employment,” not to “work”
generally, thus an immediate right to self-employment may not be guaranteed: UN
Committee on Economic, Social and Cultural Rights, “General Comment No. 18: The
Right to Work,” UN Doc. E/C.12/GC/18, Nov. 24, 2005, at [31(a)]. The implication would
then be that access to self-employment may be secured more gradually on the basis of the
usual progressive implementation standard: see generally Chapter 1.5.4 at note 405 ff.
507
Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.13, Jan. 26, 1950,
at 14.
508
Ibid.

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 5.3 s elf-employment 899

with general agreement,509 resulting in amendment of the draft article in two

ways.
First, states must extend to lawfully present refugees “treatment as favorable
as possible” as regards access to self-employment. As earlier set out,510 this
duty requires a state party to give consideration in good faith to the non-
application to refugees of even limits on self-employment generally applied to
other aliens. At the very least, this means that refugees should clearly not be
barred from independent economic activity in a mechanistic or absolutist way.
More generally, “[t]his implies a positive effort on the part of the State to
facilitate self-employment and lift restrictions from refugees,”511 as exempli-
fied by Malta’s decision not to apply its usual rules restricting self-employment
by non-citizens to refugees.512 Indeed, the standard would ideally inspire states
to undertake affirmative measures, such as start-up funds and other forms of
compensatory assistance to refugees wishing to establish businesses – as Chad
and Uganda did by providing refugees with land for cultivation.513 But because
Art. 18 requires only that states give consideration in good faith to the non-
application to refugees of limits generally applied to aliens, a decision fairly
reached not to provide refugees with affirmative assistance – for example,
India’s decision that it would not fund grant programs at a level sufficient to
enable refugees to embark on entrepreneurial ventures514 – is not per se in
breach of this Convention duty.515 It follows that the decisions by France and
Spain to adopt self-employment projects tailored to refugees516 – while laud-
able – cannot be said to have been required by Art. 18.517

509
Mr. Kural of Turkey “appreciated the humanitarian motives of the United States repre-
sentative and felt that a formula should be found urging States to accord to refugees
treatment more favourable than that given to foreigners generally”: Statement of
Mr. Kural of Turkey, ibid. at 15. Indeed, the Brazilian representative would have preferred
an even stronger standard: ibid.
510
See Chapter 3.2.1.
511
R. da Costa, “Rights of Refugees in the Context of Integration: Legal Standards and
Recommendations,” UNHCR Legal and Protection Policy Research Series, UN Doc.
POLAS/2006/02, June 2006 (da Costa, “Rights of Refugees in the Context of
Integration”), at 54.
512
See text at note 438. 513 See text at notes 432–444. 514 See text at note 446.
515
It may of course be possible to demonstrate that the failure to enfranchise refugees in such
affirmative programs is discriminatory and thus contrary to the broadly applicable duty to
ensure equal protection of the law under Art. 26 of the Civil and Political Covenant: see
Chapter 1.5.5. But there is no legal basis to insist that the “in the same circumstances”
language effectively requires the provision to refugees of affirmative self-employment
benefits reserved for most-favored foreigners or citizens: cf. Edwards, “Article 18,” at
980. As Edwards concedes, “[t]he emphasis on ‘on their own accord’ . . . indicates that
States parties wanted minimal commitment on their behalf”: ibid.
516
Foti and Fromm, “Labour Market Integration,” at 31–32.
517
At least for developed states, however, it may be that the duty of progressive implementa-
tion under Art. 2(1) of the Economic Covenant can fairly be read to require the adoption

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 900 5 ri g h t s of r ef ugees l awfu lly present

Second, the obligation under Art. 18 is not simply to grant refugees whatever
access to self-employment non-citizens generally receive, but rather to ensure that
refugees are assimilated to aliens generally “in the same circumstances.” As
previously described,518 this means that there is a duty to exempt refugees from
general requirements which the refugee cannot meet by virtue of his or her
refugeehood – for example, because of the urgency of flight, the severing of ties
with the home state, or the inability to plan for relocation.519 A refugee’s circum-
stances might therefore require that he or she be exempted from “fulfilling the
same documentation requirements as other aliens, or presenting evidence of past
income levels, to which a refugee may not have access; or exemptions from high
fees for obtaining such documentation,”520 for example as related to such matters
as “business licenses, registration for income tax, [and] filing of accounts.”521
Greece’s failure to resolve the impasse for refugee claimants to receive tax
registration numbers required to engage in self-employment522 is an example of
a practice that is at odds with this standard.
The “in the same circumstances” language more generally requires states to
tailor generally applicable requirements which fail to take account of the
hardships already endured by refugees, logically including a responsibility to
minimize the usual barriers to undertaking independent economic activity –
meaning that Austria ought to less rigidly apply its business licensing rules to
refugees,523 and Tanzania should give serious consideration to exempting
refugees from paying the usual US$1,000–3,000 fee for a self-employment
permit.524 Zambia’s rules that authorize self-employment permits only for
refugees with a net worth of US$15,000 – roughly ten times the average per
capita income in that country525 – are similarly problematic. As the Jesuit
Refugee Service explained, “[t]his condition is insurmountable for most refu-
gees, who have lost their previously accumulated capital in the process of
fleeing their country.”526 While Zambia clearly understands the importance
of charging refugees a reduced self-employment fee compared to others, the
reduction made is insufficient to take real account of the disadvantages that
accrue from involuntary alienage.527

of such measures now that self-employment has been determined to be a form of “work”
guaranteed by Art. 6 of the Covenant. See generally text at note 503 and Chapter 1.5.4.
518
See Chapter 3.2.3. 519 Ibid. at note 309. 520 Edwards, “Article 18,” at 979.
521
UNHCR, “Expert opinion of UNHCR on issues of the right to work for refugees and
asylum-seekers,” filed in the case of South African Somali Association v. Limpopo
Department of Economic Development, Environment and Tourism, North Gauteng High
Court (South Africa), Mar. 14, 2013, at 3.
522
See text at note 454. 523 Ibid. 524 See text at note 445.
525
See text at note 447. Average per capita GDP in Zambia is approximately US$1,500:
countryeconomy.com/gdp/zambia, accessed Sept. 1, 2020.
526
(2001) 90 JRS Dispatches (Apr. 7, 2001).
527
Indeed, restrictions such as the Zambian regulations, which are aimed solely at refugees,
are even more flagrant violations of the Refugee Convention. Whatever the flexibility

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 5. 4 in t el l e c tu a l pr o p er t y r i g h ts 901

In sum, under the compromise reached by the Convention’s drafters,

lawfully present refugees – including, for example, those awaiting a decision
on recognition of refugee status – are entitled to engage in self-employment
(though not yet to undertake professional or other employment). Importantly,
this critical means of ensuring refugees’ ability to sustain themselves econom-
ically includes not just the right to engage in trade or commerce, but also the
right to undertake agriculture and to establish companies. While the right of
lawfully present refugees to be self-employed is subject to rules applicable to
aliens generally, such rules must not be mechanistically applied to refugees.
Rather, states are obliged by Art. 18 both to consider in good faith the non-
application to refugees of even generally applicable limits on self-employment,
and in any event to exempt refugees from administrative or other burdens
which the refugee cannot readily meet by virtue of his or her refugeehood – for
example, because of the urgency of flight, the severing of ties with the home
state, or the inability to plan for relocation.

5.4 Intellectual Property Rights

No prior refugee treaty expressly dealt with the issue of intellectual property
rights. This is likely because such protection was thought to have been unneces-
sary. Refugees would not typically have encountered any difficulty claiming
intellectual property rights, since non-citizens have routinely been understood
to be entitled to assert such interests. And while some states condition access to
their courts for the enforcement of intellectual property rights by non-citizens on
the existence of reciprocity – meaning that the citizens of the state in which
enforcement is sought can claim comparable protections in the refugee’s country
of citizenship – these barriers to enforcement abroad of intellectual property
claims did not apply to refugees. This is because earlier refugee treaties included
a general duty to exempt refugees from any requirements of reciprocity.528
But the 1951 Convention ended this blanket exemption of refugees from
reciprocity requirements (diplomatic reciprocity requirements now being pre-
served, and even legislative and de facto reciprocity requirements being waived
only after three years’ residence in a state party).529 Without the benefit of an
exemption from reciprocity rules, many refugees would, in practice, have been
unable to protect their intellectual property rights outside their country of
origin.530

granted states by virtue of Art. 18’s comparatively low contingent standard of treatment, it
simply cannot be read to authorize refugee-specific constraints of any kind: See text at
note 496.
528
See Chapter 3.2.2 at note 266. 529 See Chapters 3.2.1 and 3.2.2.
530
There was agreement that this would be inequitable, since intellectual property “is the
creation of the human mind and recognition is not a favour”: Secretary-General,
“Memorandum,” at 27.

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 902 5 ri g ht s of re f u g e e s l a w f u l l y p r e s e n t

Refugee Convention, Art. 14 Artistic Rights and Industrial

Property
In respect of the protection of industrial property, such as inven-
tions, designs or models, trade marks, trade names, and of rights in
literary, artistic and scientific works, a refugee shall be accorded in
the country in which he has his habitual residence the same protec-
tion as is accorded to nationals of that country. In the territory of
any other Contracting State, he shall be accorded the same protec-
tion as is accorded in that territory to nationals of the country in
which he has his habitual residence.
Economic, Social and Cultural Covenant, Art. 15(1)(c)
The States Parties to the present Covenant recognize the right of
everyone . . . to benefit from the protection of the moral and
material interests resulting from any scientific, literary or artistic
production of which he is the author.
The drafts prepared by each of the Secretary-General and the French
government proposed avoiding the effect of reciprocity requirements by man-
dating the assimilation of refugees to most-favored foreigners for purposes of
enforcing intellectual property rights.531 That is, under these proposals refu-
gees present in any state party would have been automatically entitled to
invoke whatever mechanisms to protect intellectual property that country
was willing to make available to the citizens of any foreign country “by treaty
or usage,”532 including procedures open only to the nationals of countries
united in special economic or other associations. This rule would not have
imposed any particular model on a given state party, but would have required
that every refugee be granted the best protection afforded any non-citizen.
Even at the first session of the Ad Hoc Committee, however, the British
delegate expressed concern about this approach. Despite his acceptance of the
need to exempt refugees from reciprocity requirements in the enforcement of
intellectual property rights, he questioned whether the assimilation of refugees
to most-favored foreigners was the right mechanism to adopt.533 Additional
531
“In respect of industrial and intellectual property (copyright, industrial property, patents,
licences, trademarks, designs and models, trade names, etc.), refugees (and stateless persons)
shall enjoy the most favourable treatment accorded to nationals of foreign countries”: ibid.
at 27. The French draft of the convention took essentially the same approach, though with
a slightly different list of the interests to be protected. Specifically, the French proposal
omitted the protection of “licences” found in the Secretary-General’s draft and added
a reference to “scientific property”: France, “Draft Convention,” at 4.
532
Ad Hoc Committee, “First Session Report,” at Annex II.
533
“[W]hile the Committee was trying, as it should, to protect refugees against discrimination, it
should not go to the other extreme of establishing discrimination in favour of refugees. He
shared the uneasiness of other members regarding the most-favoured-nation clause”: Statement
of Sir Leslie Brass of the United Kingdom, UN Doc. E/AC.32/SR.10, Jan. 24, 1950, at 7.

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 5 .4 in t e l l e c t u a l p r o p e r t y ri g h t s 903

force was given to this argument when the Chairman of the Ad Hoc
Committee drew the attention of representatives to an expert report addressing
the Berne Convention on the Protection of Literary and Artistic Works.534 The
gist of this analysis was that the Berne Convention, the main treaty regulating
the transnational enforcement of copyright in literary and artistic property, did
not provide for the enfranchisement of non-citizens on the same terms as the
nationals of most-favored countries.535 Instead, it established a uniform stand-
ard for the enforcement of intellectual property claims abroad, based on
whether the individual seeking enforcement was a citizen of a state party to
the relevant treaty:
Taking Denmark as an example, any Dane who wrote a book had the
Danish copyright wherever the book might be published. The same was
true if the author was a national of a country adhering to the Berne
Convention. If the author was a national of a country not adhering to
the Convention, his rights were safeguarded in Denmark only if the book
was first published there. Finally, the rights of a stateless author had no
protection anywhere. With regard to the last of those situations, some
change was certainly needed; but supposing that a national of a country
not adhering to the Berne Convention became a refugee and fled to
another country not adhering to that Convention, it would be unfair if
merely by becoming a refugee he were to receive better treatment than
a citizen of his country of refuge.536
Concern about fairness arose because if a refugee’s asylum country were not
itself a party to the Berne Convention, its nationals would have no guarantee of
most-favored-national treatment when seeking to enforce intellectual property
rights in a third country. But a refugee residing in that asylum state, if entitled
to most-favored-national treatment in any state party to the Refugee
Convention, would be able to claim preferred rights in the third country and,
to that extent, would enjoy a benefit not open to the citizens of his or her host
state. It was generally felt that the Refugee Convention should compensate for
the disadvantages of refugeehood, but not operate in a way that was signifi-
cantly different from the general approach under the Berne Convention.537
534
828 UNTS 221 (UNTS 11850), revised in Stockholm, July 14, 1967 (Berne Convention).
The Berne Convention is today subscribed to by 178 states: www.wipo.int/treaties/en,
accessed Mar. 1, 2020. The Berne Convention regulates “all literary and artistic works,
including photography, films, software, databases, all types of internet content, etc.”:
Metzger, “Article 14,” at 900.
535
“[E]xisting conventions on the subject . . . applied to nationals rather than to refugees,
hence such a clause was needed for the protection of the latter”: Statement of Mr. Weis of
the International Refugee Organization, UN Doc. E/AC.32/SR.10, Jan. 24, 1950, at 8.
536
Statement of the Chairman, Mr. Larsen of Denmark, UN Doc. E/AC.32/SR.36, Aug. 15,
1950, at 20–21.
537
The United Kingdom, for example, “cannot agree to accord refugees in respect of these
matters the most favourable treatment accorded to nationals of foreign countries. They

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 904 5 ri g ht s of r e f u g e es l a w f u l l y p r e s e nt

The Ad Hoc Committee agreed that it was entirely reasonable to avoid the
penalization of a refugee because of the failure of his or her country of origin to
assist other countries to enforce the intellectual property rights of their citizens –
after all, since a refugee is by definition a person who no longer enjoys the
protection of the home state, there is little logic to holding him or her hostage to
the whims of that country. On this basic point, the drafters went beyond what the
Secretary-General and France had proposed, deciding that in the asylum state
refugees should be assimilated to citizens (not just most-favored foreigners) for
purposes of enforcing their intellectual property rights. It was felt, though, that
refugees should not be able to avoid the essential premise of the Berne
Convention, namely that the enforcement abroad of intellectual property rights
was generally contingent on the individual coming from a state party to the
intellectual property treaty regime.538 Justice could be done to refugees simply by
substituting the country in which they were residing for their country of
citizenship in determining where, and to what extent, they could enforce their
intellectual property claims in foreign countries.539 The Drafting Committee
therefore recommended a text based on these points of consensus,540 which
provided the essential model approved for the Convention:541

would, however, be prepared to consider sympathetically the possibility of according

refugees the same protection as the nationals of the country in which they are resident,
subject to the same conditions and formalities as apply to such nationals”: United Nations,
“Compilation of Comments,” at 41.
538
“If a book was first published in the United Kingdom, any author could secure the United
Kingdom copyright; if it was published in a country adhering to the Berne Convention, the
author could also secure that copyright . . . The United Kingdom proposal was therefore that
refugees in their country of residence should receive the rights normally accorded to nationals
of that country . . . The rights they would receive for books first published in other countries
would not depend on whether those countries were signatories to the Convention or not”:
Statement of Sir Leslie Brass of the United Kingdom, UN Doc. E/AC.32/SR.36, Aug. 15, 1950,
at 21–22. See also Statement of Mr. Herment of Belgium, ibid. at 22: “[T]he difficulties
referred to could perhaps be avoided by according a refugee the same treatment as was
accorded to nationals of the country in which he found himself (‘national treatment’).”
539
“‘[N]ational treatment’ should not . . . apply to refugees resident in a country not
a signatory to the Convention”: Statement of Mr. Herment of Belgium, ibid. at 22.
While the Chairman based his remarks on the assumption that the Berne Convention
was designed to protect the rights of publishers as well as those of authors, his analysis is
comparable. “The fairest solution would be to provide for ‘national treatment’ in the
country where the publisher was resident, and in other countries for the same treatment as
was normally accorded to citizens of that country, and also to provide for protection of the
copyright in any country where the book might first be published”: Statement of the
Chairman, Mr. Larsen of Denmark, ibid.
540
“Article [14] was revised by the Committee to bring this provision into conformity with
existing Conventions on the subject”: Ad Hoc Committee, “Second Session Report,” at 12.
541
The President of the Conference of Plenipotentiaries observed that “[t]he question of
nationality entered into the matter, inasmuch as the recognition, for example, of a person’s
rights in his literary, scientific or artistic works depended on whether the country of which
he was a national or in which he resided had signed the relevant international convention.

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 5 .4 in t e l l e c t u a l p r o p e r t y ri g h t s 905

In respect of the protection of industrial property, such as inventions,

designs of models, trade marks, trade names, etc., and of rights in literary,
scientific and artistic works, a refugee shall be accorded in the country in
which he is resident, the same protection as is accorded to nationals of that
country. In the territory of another Contracting State, he shall be accorded
the same protection as is accorded in that territory to nationals of the
country in which he is resident.542
Art. 14 thus entitles a refugee to enforce intellectual property rights, whether in the
asylum country or in another state party to the Refugee Convention, to exactly the
same extent as a citizen of his or her asylum country.543 In essence, it effected an
indirect amendment of the Berne Convention for state parties to the Refugee
Convention, requiring those states to assimilate refugees living in their country to
their own citizens for purposes of the enforcement of intellectual property rights.
The substantive scope of the interests protected by Art. 14 is not, however,
restricted to the issue of literary and artistic rights on which debate focused.544
To the contrary, the Refugee Convention also protects “industrial property,”
and was amended to add a reference to “inventions.”545 More generally, the
nature of the interests protected includes the refugee’s “literary, artistic and
scientific rights [emphasis added].”546 The only substantive reduction from the
scope of protection originally proposed by the Secretary-General was to elim-
inate the references to “licences,”547 “copyright,”548 and “patents,”549 decisions

To quote an example, it might reasonably be asked why a refugee from a country which
had not acceded to such a convention and who resided in a country of asylum which had
also not signed the convention should, when residing in Switzerland for a few days, be
given the same protection in that respect as a Swiss national”: Statement of the President,
Mr. Larsen of Denmark, UN Doc. A/CONF.2/SR.7, July 5, 1951, at 21.
542
“Report of the Drafting Committee,” UN Doc. E/AC.32/L.40, Aug. 10, 1950, at Art. 9.
543
As Weis concludes, “[t]he scope of the rights depends on the municipal law of the country
concerned and the international conventions to which it is a party”: Weis, Travaux, at 122.
544
“The scope of Art. 14 does not produce any doubts: it is the totality of creations of the
human mind”: Robinson, History, at 108.
545
The addition of this reference was not formally debated, but was included in the draft
adopted at the second session of the Ad Hoc Committee: Ad Hoc Committee, “Second
Session Report,” at 18.
546
Ad Hoc Committee, “First Session Report,” at Annex I.
547
No reference to “licenses” was made in the French government’s initial proposal for what
became Art. 14: see note 531 above. While there was no debate specifically on this point,
the reference was omitted from the text as adopted at the second session of the Ad Hoc
Committee: Ad Hoc Committee, “Second Session Report,” at 18.
548
The British representative “reserved the position of his government regarding copyright
provisions in the article” at the first session of the Ad Hoc Committee: Statement of Sir
Leslie Brass, UN Doc. E/AC.32/SR.10, Jan. 24, 1950, at 8. While not the subject of
a recorded discussion, the reference to copyright was omitted in the text adopted at that
first session: Ad Hoc Committee, “First Session Report,” at Annex I.
549
The French representative expressed some concern at the decision of the Drafting
Committee to delete the express reference to patents: Statement of Mr. Juvigny of

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 906 5 rights of r efugees l awfully present

prompted by a desire to refer only to “the thing protected” and not to “a

method of protection.”550 Instead of guaranteeing refugees access simply to
these particular modes of protecting intellectual property rights, the drafters
opted to insert a more comprehensive duty to grant refugees “the same
protection” as enjoyed by citizens of the host country. Thus, refugees are
entitled to protect and assert their intellectual property rights via licenses,
patents, or copyright, in addition to any other means of protecting their
interests which may be made available to nationals.551
The net utility of Art. 14 in assisting refugees to enforce their industrial
property rights was nonetheless, at least initially, quite limited.552 This is
because the provisions of Berne’s parallel treaty on issues of industrial prop-
erty, the Paris Convention for the Protection of Industrial Property,553 already
provided protection superior to that granted by Art. 14 at the time of the
Refugee Convention’s adoption:
Persons within the jurisdiction of each of the countries of the Union shall,
as regards the protection of industrial property, enjoy in all other countries
of the Union the advantages that their respective laws now grant, or may
hereafter grant, to their nationals [emphasis added].554
In contrast, Art. 14 of the Refugee Convention only provides an exemption
from reciprocity for refugees who are “habitually resident” in a state party.555
France, UN Doc. E/AC.32/SR.41, Aug. 23, 1950, at 8. The American representative agreed
with this concern: Statement of Mr. Henkin, ibid.
550
Statement of Sir Leslie Brass of the United Kingdom, ibid. at 9. In response to the French
and American proposal to reinsert a reference to patents, “[t]he Chairman felt that such an
insertion would be illogical, since article [14] made no reference to the means of affording
protection. In English, a ‘patent’ was a means of protecting an invention”: Statement of the
Chairman, Mr. Larsen of Denmark, ibid. at 8.
551
For example, the British representative noted that “[i]n the case of a trademark, it was the
registration which afforded protection and in the case of an invention it was the patent”:
Statement of Sir Leslie Brass of the United Kingdom, ibid. at 9.
552
The debates of the Ad Hoc Committee were suspended on the motion of the Israeli
delegate to obtain expert advice on the best way to protect intellectual property interests
beyond those covered by the Berne Convention, but there is no indication of any effort
substantively to tailor Art. 14 to address the broader range of issues: UN Doc. E/AC.32/
SR.36, Aug. 15, 1950, at 23.
553
828 UNTS 305 (UNTS 11851), revised in Stockholm July 14, 1967 (Paris Convention). The
Paris Convention has been subscribed to by 188 states: www.wipo.int/treaties/en, accessed
Mar. 1, 2020.
554
This is the language of the treaty as it existed at the time of the Refugee Convention’s
drafting, subsequent to the London Amendment of June 2, 1934: LNTS 4459, at Art. 2(1).
555
The claim that “the lawful presence or staying of the refugee is without significance for the
application of Art. 14. Intellectual property protection is granted both to legal and illegal
refugees” (Metzger, “Article 14,” at 905) is important, though somewhat overstated. As
analyzed at Chapter 3.1.3, illegal presence does not per se mean that habitual residence
cannot be established. It is, however, generally understood to be a strong proxy against the
establishment of habitual residence.

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 5 .4 in t e l l e c t u a l p r o p e r t y ri g h t s 907

While this term of art is a flexible notion that does not focus on legality of status
alone but rather seeks to define the individual’s center of interests in a holistic
way,556 it nonetheless requires more than the fact of physical presence, the
standard under the Paris Convention. At least in 1951, then, the only net
benefit of Art. 14 for refugees living in a state party to the Paris Convention
would have been the Refugee Convention’s insistence that the asylum country
itself protect resident refugees’ industrial property rights domestically on the
same terms as it did those of its own citizens (though this was not generally
a problem in any event).
The ground reality has, however, changed in the years since the Refugee
Convention came into force. The Berne Convention was amended in 1967 to
provide that “[a]uthors who are not nationals of one of the countries of the
Union but who have their habitual residence in one of them shall, for the
purposes of this Convention, be assimilated to nationals of that country.”557
Art. 14 of the Refugee Convention therefore does not really improve upon this
general language for purposes of enabling refugees to enforce their literary and
artistic claims either domestically or abroad.
On the other hand, amendments to the Paris Convention tended in the
opposite direction. The earlier language of that treaty, under which it was
sufficient simply to be “within the jurisdiction” of a state party to claim
exemption from reciprocity in other countries, was deleted. Non-citizens
must today be “domiciled . . . in the territory of one of the countries of the
Union” to be treated as a citizen for purposes of enforcing their industrial
property rights abroad – a seemingly more exacting requirement than the
Refugee Convention’s rule that Art. 14 rights inhere in refugees who are
“habitually resident” in a state party.
Yet even here the utility of the Refugee Convention’s Art. 14 may be more
apparent than real. As described above,558 the modern understanding of
“domicile”559 is the state where the refugee is both physically present and in

556
See Chapter 3.1.3 at note 183 ff. 557 Berne Convention, at Art. 3(2).
558
See Chapter 3.2.4 at note 362 ff.
559
There was, however, much more concern about the narrowness of “domicile” at the time
of the Convention’s drafting. Sweden pressed for the incorporation of the notion of
domicile (see Statement of Mr. Petren of Sweden, UN Doc. A/CONF.2/SR.7, July 5,
1951, at 19), but the French government objected that “the concept of ‘domicile,’ entailing
as it did certain disadvantages from the legal point of view, involved difficulties”:
Statement of Mr. Rochefort of France, ibid. at 20. The Belgian representative similarly
argued that “it would not be possible to require of a refugee that he possess a domicile”:
Statement of Mr. Herment of Belgium, UN Doc. A/CONF.2/SR.8, July 5, 1951, at 5. More
fundamentally, the representative of Colombia provided a principled rationale for refer-
ring to habitual residence rather than to domicile in the context of Art. 14. “There was
a difference between rights dependent on personal status and other civil rights, for
example, property rights such as those under discussion. In the former case, the concept
of ‘domicile’ might be suitable, but the concept of ‘residence’ was preferable so far as

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 908 5 ri g ht s of re f u g e e s l a w f u l l y p r e s e nt

which he or she intends to reside on an indefinite basis – thus ordinarily the

country of asylum. Given developments in the law of domicile – that the
intention to remain can emerge post-arrival,560 that there need be no intention
to remain permanently,561 and that an indeterminate contingency to depart
does not undermine the intention to remain on an indefinite basis562 – the
Paris Convention’s reliance on domicile rather than habitual residence563 is
unlikely to pose any real disadvantage for refugees.564 And since the Paris
Convention also extends the right to enforcement abroad to non-domiciled
non-citizens with a “real and effective industrial or commercial establishment”
in a state party, Metzger is surely right to conclude that “it is hardly likely to

artistic rights and industrial property were concerned”: Statement of Mr. Giraldo-
Jaramillo of Colombia, UN Doc. A/CONF.2/SR.7, July 5, 1951, at 20. This reasoning
was endorsed by the representative of the United Kingdom, who observed that “[t]he use
of the well-known and clearly defined term ‘domicile’ was appropriate in article [12], as it
constituted a criterion for determining the laws that should apply in respect of the
personal status of a refugee. As, however, the restriction aimed at in article [14] was
merely in respect of the period of residence in a receiving country, he considered it would
be wrong to introduce the term ‘domicile’ into the text of that article”: Statement of
Mr. Hoare of the United Kingdom, UN Doc. A/CONF.2/SR.8, July 5, 1951, at 6. Thus,
Robinson concludes that “the exercise of the right was not made dependent on ‘permanent
residence’ or ‘domicile’ because it was felt that it was too far-reaching [a] concept for the
enjoyment of civil rights”: Robinson, History, at 107.
560
See Chapter 3.2.4 at note 366. 561 Ibid. at note 368. 562 Ibid. at note 369.
563
“The term ‘habitual residence’ was introduced to distinguish it from purely temporary
residence”: Weis, Travaux, at 123. See also Robinson, History, at 107: “The change [to refer
to ‘habitual residence’] was made to denote that a stay of short duration was not
sufficient.”
564
The drafters of Art. 14 of the Refugee Convention sought to ensure that intellectual
property rights be protected as soon as the refugee had established some form of de
facto ongoing presence in a state party. “[I]f ‘domicile’ seemed too narrow, and ‘residence’
too wide a concept, ‘habitual residence’ constituted a happy medium . . . While it was true
that [the phrase] might lack legal precision, it should be remembered that refugees found
themselves in a de facto position before they enjoyed a de jure position”: Statement of
Mr. Rochefort of France, UN Doc. A/CONF.2/SR.8, July 5, 1951, at 7–8. See also Statement
of Mr. Hoare of the United Kingdom, ibid. at 6: “[T]he restriction aimed at in Article [14]
was merely in respect of the period of residence in a receiving country.” Even the Swedish
representative, who had argued for the alternative language of “domicile,” acknowledged
that “the Swedish delegation was mainly concerned with eliminating the idea of residence
pure and simply,” in consequence of which it could accept the Austrian reference to
“habitual residence”: Statement of Mr. Petren of Sweden, ibid. at 5. In line with these
understandings, Grahl-Madsen concludes that “refugees do not have to have a permanent
residence or domicile. With the exception of new refugees who have not yet habitual
residence anywhere, it is difficult to envisage a refugee having no habitual residence”:
Grahl-Madsen, Commentary, at 60. Robinson notes simply that “‘[h]abitual residence’
means residence of a certain duration, but it implies much less than permanent residence”:
Robinson, History, at 107. This leads him logically to conclude that “it is difficult to
envisage a refugee having no habitual residence except new refugees who did not yet
succeed in establishing ‘habitual residence’ anywhere”: ibid.

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 5 .4 intellectual p ro perty rig hts 909

find real cases in which [industrial property] rights holder will fall back on Art.
14 of the [Refugee] Convention.”565
It follows that as regards either of the two classic forms of intellectual
property rights – literary and artistic rights (governed by the Berne
Convention) and industrial property rights (governed by the Paris
Convention) – Art. 14 of the Refugee Convention is most important as
a clear recognition that habitually present refugees must benefit in the asylum
state from the same protections as nationals of anything broadly understood to
be intellectual property rights. But on the more complex question of the
capacity to enforce those rights abroad, the provisions of Art. 14 today add
no real value to the general systems of enforcement set by the Berne and Paris
Conventions.
Importantly, however, the general language of Art. 14 ensures that it applies
not just to the regimes that existed in 1951, but also to subsequently established
systems for the protection of intellectual property. Perhaps the most important
of these is the specialized treaty regime for the protection of the performers and
producers of “phonograms” (audio recordings). Under the 1961 Rome
Convention,566 the ability of producers and performers to enforce abroad
their intellectual property interests in phonograms – that is, in the perform-
ance itself, rather than in the musical score on which the performance was
based – is reserved for persons who are “nationals” of a contracting state party.
The same is true of the more specialized treaties which build upon the Rome
Convention, including the 1971 accord prohibiting the unauthorized duplica-
tion of phonograms567 and the 1996 World International Property
Organization treaty on the same subject.568 Yet in any state party to the

565
Metzger, “Article 14,” at 901. It is, however, less clear that as a general matter “[t]oday,
protection of refugees is often more easily available under the intellectual property treaties
than under Art. 14 [emphasis added]”: ibid. at 897. While Art. 14 rights are much the same
as those under the Berne and Paris Conventions, they are more favorable than those set by
the Rome Convention and the general rule under the WIPO regime: see text at notes 566
and 570.
566
International Convention for the Protection of Performers [and] Producers of
Phonograms and Broadcasting Organisations, entered into force May 18, 1964 (Rome
Convention), 496 UNTS 43 (UNTS 7247), at Art. 2(1). There are ninety-four state parties
to this treaty: www.wipo.int/treaties/en, accessed Mar. 1, 2020.
567
“Each Contracting State shall protect producers of phonograms who are nationals of other
Contracting States against the making of duplicates without the consent of the producer
and against the importation of such duplicates, provided that any such making or
importation is for the purpose of distribution to the public, and against the distribution
of such duplicates to the public”: Convention for the Protection of Producers of
Phonograms Against Unauthorized Duplication of their Phonograms, done Oct. 29,
1971, at Art. 2.
568
“Contracting Parties shall accord the protection provided under this Treaty to the
performers and producers of phonograms who are nationals of other Contracting
Parties”: WIPO Performances and Phonograms Treaty, done Dec. 20, 1996, at Art. 3(1).

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 910 5 r i g h t s of re f u g e e s l a wf u l l y p r e s e n t

Refugee Convention, Art. 14 requires that refugees be treated as citizens of the

state where they are habitually present – meaning that they are entitled to
enforce their phonogram rights in a country that is also a party to the Rome
Convention on the same terms as a national of their host country. As such,
even though Art. 14 is now only of minimal relevance in the spheres of concern
to the drafters, its open-ended framing has given it a new contemporary
application.569
More generally, Art. 14 is also an important bulwark against retrogression
that might seek to disfranchise refugees or non-citizens in general. Arguably
the most important contemporary intellectual property treaty, the World
Trade Organization’s Agreement on Trade-Related Aspects of Intellectual
Property Rights, Including Trade in Counterfeit Goods (“TRIPS
Agreement”),570 requires only that the “nationals” of state parties be guaran-
teed the right to enforce their intellectual property rights abroad,571 except to
the extent that one of the core predecessor intellectual property treaties – such
as the Berne, Paris, and Rome Conventions – contains rules that require the
assimilation of non-citizen residents.572 As the example of the Rome
Convention on phonograms makes tragically clear,573 there is a continuing
risk that non-citizens (including refugees) will not be included in the scope of
569
“The list of examples [in Art. 14] . . . is not exhaustive. The scope of interests protected by
Art. 14 . . . must be interpreted extensively as comprising all forms of protection granted
by the State of habitual residence for ‘creations of the human mind’ . . . Therefore the
scope of protection afforded by the 1951 Convention should not fall behind the scope of
protection established by the existing conventions and should expand national treatment
to refugees . . . The 1951 Convention may be of particular importance for intellectual
property rights that are new and have not yet found acceptance by the international
intellectual property treaties”: Metzger, “Article 14,” at 903–904.
570
33 ILM 81, Dec. 15, 1993 (TRIPS Agreement). “TRIPS expands the scope of GATT’s most-
favored nation and national-treatment principles to intellectual property rights as they
affect the trade in products protected by such rights. Most-favored nation treatment
requires that any protection and rights granted to nationals of any Member must be
accorded to nationals of all Members [emphasis added]”: N. Telecki, “The Role of Special
301 in the Development of International Protection of Intellectual Property Rights After
the Uruguay Round,” (1996) 14 Boston University International Law Journal 187, at 193.
All member states of the World Trade Organization (WTO) are bound by the TRIPS
Agreement.
571
“Each Member shall accord to the nationals of other Members treatment no less favour-
able than that it accords to its own nationals with regard to the protection of intellectual
property”: TRIPS Agreement, at Art. 3.
572
Ibid. at Art. 1(3). As such, “assimilation of non-citizen residents under TRIPS is only
provided if the respective older convention contains a rule on assimilation and if the
requirements of assimilation under the older convention are met”: Metzger, “Article 14,”
at 902–903. Despite the presumption that only citizens are protected, “Article 3 of the
TRIPS Agreement allows for reverse discrimination, which means that foreign rights
holders may receive more favourable treatment than nationals”: A. Sanders, The
Principle of National Treatment in International Economic Law (2014), at 290.
573
See text at note 566.

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 5 .4 in t e l l e c t u a l p r o p e r t y ri g h t s 911

protection in emerging intellectual property agreements and that the WIPO

presumption in favor of nationality only will thus apply – a risk that can be
countered by reliance on Art. 14 of the Refugee Convention.
Beyond refugee law, Art. 15(1)(c) of the Economic Covenant also speaks to
the question of intellectual property rights in the human rights context.
Codified as part of a single right574 on participation in cultural life, enjoyment
of the benefits of scientific progress, and “[t]o benefit from the protection of the
moral and material interests resulting from any scientific, literary, or artistic
production of which he is an author,” Art. 15 is only partly addressed to the
same commercial interests that are the focus of the general intellectual prop-
erty system575 (and to which the Refugee Convention’s Art. 14 is attuned).576
The core area of overlap is in regard to what may be referred to as “creators’
rights,”577 and specifically the protection of creators’ “material interests.”578
Importantly, while the Committee on Economic, Social and Cultural Rights
has recognized that Art. 15(1)(c) “requires the protection of the moral and
material interests of the authors in their works,”579 “these intellectual property
rights must be balanced with the right to take part in cultural life and to enjoy the
benefits of scientific progress and its applications.”580 To this end, the
Committee has taken the view that the Covenant mandates an understanding
of intellectual property rights grounded in the premise that “intellectual property
is a social product and should have a social function. The end which intellectual
property should serve is the objective of human well-being.”581

574
“The specific textual context . . . does make it clear that creator’s rights are linked with – if
not intrinsically tied to – the right to culture and the right to benefit from scientific
progress”: H. Ruse-Khan, The Protection of Intellectual Property in International Law
(2016) (Ruse-Khan, Protection of Intellectual Property), at 215.
575
“It is . . . important not to equate intellectual property rights with the human right recognized
in article 15, paragraph 1(c)”: UN Committee on Economic, Social and Cultural Rights,
“General Comment No. 17: The Right of Everyone to Benefit from the Protection of the Moral
and Material Interests Resulting from any Scientific, Literary or Artistic Production of which
He or She is the Author,” UN Doc. E/C.12/GC/17, Jan. 12, 2006, at [3].
576
As one commentator frames it, “Article 15, para. 1(c) . . . recognizes [such rights] more
cautiously”: Metzger, “Article 14,” at 899.
577
L. Helfer and G. Austin, Intellectual Property and Human Rights – Mapping Global
Interfaces (2011), at 173.
578
Three distinct ways to understand the relationship between human rights and classic
intellectual property norms – human rights as a limit; intellectual property as a means to
implement human rights; and human rights as an alternative means to protect creators –
are discussed in Ruse-Khan, Protection of Intellectual Property, at 211–212.
579
UN Committee on Economic, Social and Cultural Rights, “General Comment No. 17: The
Right of Everyone to Benefit from the Protection of the Moral and Material Interests
Resulting from any Scientific, Literary or Artistic Production of which He or She is the
Author,” UN Doc. E/C.12/GC/17, Jan. 12, 2006, at [4].
580
Ibid. at [4].
581
Ibid. at [4]. “It follows that other human rights a priori determine the scope and content of
creator’s rights. Regardless of how an adequate balance is implemented in practice, this is

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 912 5 righ t s of r efug ee s l aw fully p re s en t

Specifically, a human-rights-based understanding of intellectual property

“promote[s] creators’ ability to earn a livelihood and to protect their scientific
and creative freedom, the integrity of their work, and their right to
attribution,”582 but not in the relatively single-minded fashion of traditional
rules on the protection of intellectual property.583 Most fundamentally, human
rights protection of intellectual property inheres only in “natural persons . . .
[including] groups of individuals” but not “legal entities” such as
corporations.584 Nearly as important, the scope of protected “material” (eco-
nomic) interests “need not necessarily reflect the level and means of protection
found in present copyright, patent and other intellectual property regimes.”585
While creators are entitled to “just remuneration of their labour”586 and “to be
recognized as the creators”587 of their works, there is no duty under the
Economic Covenant588 to guarantee that relevant economic benefits “extend
over the entire lifetime of an author”:589
Rather, the purpose of enabling authors to enjoy an adequate standard of
living can also be achieved through one-time payments or by vesting an
author, for a limited period of time, with the exclusive right to exploit his
scientific, literary, or artistic production.590

an essential feature that distinguishes creator’s rights under the [Economic Covenant] . . .
from [intellectual property] rights regulated in the international IP system”: Ruse-Khan,
Protection of Intellectual Property, at 220.
582
UN Human Rights Council, “Report of the Special Rapporteur in the Field of Cultural
Rights,” UN Doc. A/HRC/28/57, Dec. 24, 2014, at [100].
583
“It is clear that while links between the promotion and protection of human rights, on the
one hand, and the [IP] rights covered by the TRIPS Agreement, on the other, exist, there
remain fundamental differences of approach. First of all, the overall thrust of the TRIPS
Agreement is the promotion of innovation through the provision of commercial incen-
tives”: UN Commission on Human Rights, “The Impact of the Agreement on Trade-
Related Aspects of Intellectual Property Rights on Human Rights: Report of the High
Commissioner,” UN Doc. E/CN.4/Sub.2/2001/13, June 27, 2001, at [22]. A UN special
rapporteur has thus suggested “reconsidering the current maximalist intellectual property
approach [in favor of] explor[ing] the virtues of a minimalist approach to IP protection”:
UN Human Rights Council, “Report of the Special Rapporteur in the Field of Cultural
Rights: The Right to Enjoy the Benefit of Scientific Progress and its Applications,” UN
Doc. A/HRC/20/26, May 14, 2012, at [65].
584
UN Committee on Economic, Social and Cultural Rights, “General Comment No. 17: The
Right of Everyone to Benefit from the Protection of the Moral and Material Interests
Resulting from any Scientific, Literary or Artistic Production of which He or She is the
Author,” UN Doc. E/C.12/GC/17, Jan. 12, 2006, at [7].
585
Ibid. at [10]. 586 Ibid. at [12]. 587 Ibid. at [13].
588
But Art. 15(1)(c) “by no means prevents States parties from adopting higher protection
standards in international treaties on the protection of the moral and material interests of
authors or in their domestic laws, provided that these standards do not unjustifiably limit
the enjoyment by others of their rights under the Covenant”: ibid. at [11].
589
Ibid. at [16]. 590 Ibid. at [16].

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 5.4 in t e l l e c t u a l p r o p e r t y ri g h t s 913

The attenuation of economic entitlements – most relevantly as regards indus-

trial property rights – in this way591 represents, of course, a challenge to the
core of the traditional intellectual property regimes which were not conceived
in the human rights context. To its credit, however, the World Intellectual
Property Organization (WIPO) not only contributed to the drafting of the
Economic Committee’s seminal general comment on point,592 but has
included some (admittedly vague) references to the importance of human
rights in aspects of its specialized work.593
For refugees, the most immediate import of the human-rights-based under-
standing embodied in Art. 15(1)(c) is that it extends to “everyone” whatever
rights are fairly understood to be protected under the Covenant’s notion of
creators’ rights594 and makes these subject to the general duty of state parties to
“prohibit any discrimination in the access to an effective protection of the
moral and material interests of authors, including administrative, judicial and
other remedies, on the grounds of . . . national or social origin . . . [or] other
status, which has the intention or effect of nullifying the equal enjoyment or
exercise of the right.”595 Indeed, one of the “core obligations” under Art.
15(1)(c), not subject to the usual duty only progressively to implement
Covenant rights, is the duty “of immediate effect . . . [t]o ensure equal access
for authors belonging to disadvantaged and marginalized groups”596 to such
remedies. At the very least, then, the Art. 15(1)(c) duty thus extends whatever
creators’ rights fall under its scope to refugees who might not be deemed to
meet the Refugee Convention’s habitual residence requirement. It also unam-
biguously affirms that the means to enforce rights – as much as the rights
themselves – are very much a part of the protected interest.
In sum, the duty under Art. 14 of the Refugee Convention to enfranchise
refugees within the asylum country’s domestic system for the protection of
industrial property rights remains of value, at least because its requirements
591
“[T[he clear distinctions between human rights and intellectual property rights might be
relevant to describe what was previously termed ‘industrial property rights.’ Such distinc-
tions, however, are less evident in the realm of copyrights, especially in the common law
tradition, which integrates a strong moral justification for the protection of the works of
the authors”: H. Haugen, “General Comment No. 17 on ‘Authors’ Rights,’” (2007) 10(1)
Journal of World Intellectual Property 53 (Haugen, “General Comment No. 17”), at 58.
592
Ibid. at 56. 593 Ibid. at 64.
594
But as Ruse-Khan observes, “it seems doubtful that trademarks (as functional indicators of
commercial origin – even if created by humans) are included”: Ruse-Khan, Protection of
Intellectual Property, at 222. Similarly, Haugen opines that “[s]uch distinctions are easier
in the field of patent rights than in the field of copyrights”: Haugen, “General Comment
No. 17,” at 58.
595
UN Committee on Economic, Social and Cultural Rights, “General Comment No. 17: The
Right of Everyone to Benefit from the Protection of the Moral and Material Interests
Resulting from any Scientific, Literary or Artistic Production of which He or She is the
Author,” UN Doc. E/C.12/GC/17, Jan. 12, 2006, at [19].
596
Ibid. at [39].

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 914 5 r ights of r efugees l awfully present

guarantee to refugees greater material protection (as codified in treaties on

intellectual property law, and more broadly) than do the cognate provisions of
general human rights law. Art. 14 expressly precludes any effort by an asylum
state to deny habitually resident refugees – that is, refugees whose present
center of interest is the asylum country, whether or not refugee status has been
formally recognized – access to any system it offers its own citizens for
enforcing their intellectual property rights. This avoids the need for refugees
to claim protection by reliance on more fungible non-discrimination rules597 –
still the framework within which even the progressive understanding of the
Economic Covenant’s Art. 15(1)(c) is implemented.
Art. 14’s contribution to the matter primarily of concern to the drafters – to
allow refugees to enforce their literary and artistic rights outside their country
of citizenship despite the prevalence of reciprocity requirements – varies with
the context. In the realm of artistic and literary rights, the amended Berne
Convention now replicates the Refugee Convention’s duty to assimilate habit-
ually present refugees to nationals. Much the same is true of protection of
industrial property rights under the Paris Convention since – despite its
amendment to withdraw protection from all persons “within the jurisdiction”
of a state party – its protections now extend to domiciled non-citizens (includ-
ing refugees), a notion that under contemporary interpretation is at least as
inclusive as Art. 14’s habitual residence requirement. On the other hand, Art.
14 does overcome the limitation in the Rome Convention on performance
rights (phonograms) that excludes refugees and other non-citizens. As new
forms of intellectual property are devised and regulated under the WIPO
regime’s presumption mandating that only citizens receive reciprocal privil-
eges, this bulwark function of Art. 14 may prove of enduring importance in
ensuring that refugees are always able to claim rights under emerging regimes.
Perhaps the most interesting question is what is likely to result from the
interaction between the general intellectual property regimes – including the
Berne, Paris, and Rome treaties, as well as the WIPO accords that defer to their
definitions of the beneficiary class – and less exclusively economic interpret-
ations of authors’ rights under the Economic Covenant.598 To the extent that
the project of attenuating intellectual property rights in order to advance
broader social objectives is successful, Art. 14 of the Refugee Convention –
framed in a way that is very much anchored in, and draws on, the generalist
tradition – may be of less concrete value in guaranteeing the immediate
economic interests of refugee creators, in particular of industrial property.
597
See Chapter 1.5.5.
598
“[T]he distinction between authors’ rights as recognized in article 15, paragraph 1(c) and
established intellectual property rights is difficult to draw. No state has yet provided these
mechanisms and institutions as part of their human rights regimes, and therefore they
need to rely upon existing intellectual property institutions and legislation to ensure that
authors can enjoy their human rights”: Haugen, “General Comment No. 17,” at 61.

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 5.5 assis tance to access the courts 915

On the other hand, that same evolution may well advantage most refugees
given its commitment to spread the benefits of scientific and other creations to
all,599 and in particular to those who are presently disadvantaged.

5.5 Assistance to Access the Courts

As earlier described,600 refugees are entitled to assert their rights before the
courts of any state party,601 including prior to being admitted to a status
determination procedure.602 The drafters agreed that even “persons who had
only recently become refugees and therefore had no habitual residence were . . .
covered by the provisions of . . . paragraph 1 [of Art. 16].”603 Both suits at law
and criminal proceedings are moreover now subject to the qualitative require-
ments set by Art. 14(1) of the Civil and Political Covenant.604 In brief, courts
and tribunals must be established by law, jurisdictionally competent, inde-
pendent, and impartial. They must moreover be positioned to deliver a fair and
public hearing, meaning that access is reasonably expeditious, the rules of
natural justice are respected, there is procedural equality between the parties, it

599
“State parties should . . . ensure that their legal and other regimes for the protection of the
moral and material interests resulting from one’s scientific, literary or artistic production
constitute no impediment to their ability to comply with their core obligations in relation
to food, health and education, as well as to take part in cultural life and to enjoy the benefits
of scientific progress and its applications, or any other right enshrined in the Covenant”:
UN Committee on Economic, Social and Cultural Rights, “General Comment No. 17: The
Right of Everyone to Benefit from the Protection of the Moral and Material Interests
Resulting from any Scientific, Literary or Artistic Production of which He or She is the
Author,” UN Doc. E/C.12/GC/17, Jan. 12, 2006, at [35].
600
See Chapter 4.10.
601
“[A]rticle [16] stipulated that a refugee should not only have free access to the courts in the
country where he resided, but to the courts of all contracting states”: Statement of the
President, Mr. Larsen of Denmark, UN Doc. A/CONF.2/SR.8, July 5, 1951, at 13. As
drafted, refugees are to have the right of access to courts, even if the citizens of the host
state do not. Thus, Grahl-Madsen observes that “[t]he rule is interesting because it is of an
absolute character and does not refer to any standard relating to nationals or most
favoured aliens or any other group or category of aliens”: Grahl-Madsen, Commentary,
at 66.
602
“Paragraph 1 applies to any refugee . . . If he has his habitual residence in a non-
Contracting State, he shall nevertheless have access to courts of law in any of the
Contracting States, subject only to the rule that each Contracting State must determine
for its own purposes whether a person is to be considered as a refugee or not”: Grahl-
Madsen, Commentary, at 64.
603
Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.25, Feb. 10, 1950, at 6.
This position was thought largely uncontroversial, since “[u]nder present day practice
foreigners are usually granted the right to appear before courts of law as plaintiffs or
defendants . . . [But] [t]o avoid difficulties in such countries where free access to courts is
not granted to all foreigners, the Convention explicitly imposes such an obligation on the
Contracting States”: Robinson, History, at 112. See Chapter 4.10 at note 2748.
604
See Chapter 4.10 at note 2818 ff.

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is possible reasonably to present one’s case, and the hearing (or at least the
judgment, where special circumstances exist) is accessible to all.
Yet the drafters were keenly aware that the basic guarantee of the right to
bring a case to court could often prove illusive in practical terms:
Although in principle the right of a refugee to sue and be sued is not
challenged, in practice there are insurmountable difficulties to the exercise
of this right by needy refugees: the obligation to furnish cautio judicatum
solvi and the refusal to grant refugees the benefit of legal assistance makes
the right illusory. In many countries, legal assistance is available solely to
nationals and only foreigners who can invoke a treaty of reciprocity are
granted the benefit of such assistance. Refugees should therefore be
exempted, as was done in the Conventions of 1933 and 1938, from the
obligation to furnish cautio judicatum solvi and should enjoy the benefit of
legal assistance on the same conditions as nationals.605
In the context of civil claims, some states – including Belgium,606 the
Netherlands,607 Croatia, Slovenia,608 and Turkey609 – still authorize defend-
ants to claim security for costs against foreign national residents (including
refugees) in at least some circumstances under the doctrine of cautio judicatum
605
Secretary-General, “Memorandum,” at 30.
606
“The Belgian Constitutional Court declared in 2018 that Article 851 of the Code judiciaire
was unconstitutional as it focused on nationality rather than residence. In order not to
create havoc with on-going proceedings . . . Cautio judicatum solvi is therefore likely to
remain in Belgium, albeit based on the residence rather than nationality criterion (coupled
with the absence of sufficient assets in the country)”: E. Guinchard, “Cautio Judicatum
Solvi in Belgium: Towards a Reform,” Nov. 10, 2018.
607
Under Article 224, Section 1 of the Dutch Code of Civil Procedure, “all claimants who are
not residents of the Netherlands who bring a claim before a Dutch court will, at the request
of the defendant(s), have to provide security for the trial costs and/or damages which they
might have to pay in the event the court awards those costs to the defendant(s). This
obligation to provide security does not exist . . . when: (a) This follows from a treaty or EU
regulation, (b) A cost and/or damage award against the claimant can be enforced in the
country where the claimant has his residence, either on the basis of the Statute of the
Kingdom of the Netherlands (relevant when the defendant has his residence in the
Netherlands Antilles), on the basis of a treaty or on the basis of an EU regulation, (c) It
can be reasonably expected that recourse for a cost and/or damage award against the
claimant payment will be possible within the Netherlands (for example, when the claimant
has assets in the Netherlands), or (d) This rule would effectively render it impossible for
the foreign claimant to get access to the Dutch court”: T. Claassens, “Litigation in the
Netherlands: A Practitioner’s Guide” (2013), at 40 (internal citations omitted).
608
Unlike persons designated “tourists” or as belonging to other classes of foreign nationals,
refugees are exempt from the duty to provide security for costs in Croatia and Slovenia:
Council on General Affairs and Policy of the Conference, “Report of the Experts’ Group
on the Co-operation and Access to Justice for International Tourists (Tourism Project),”
Hague Conference on Private International Law, March 2019, at xl, note 29.
609
See A. Güzeloğlu and T. Kurban, “The Obligation of Depositing Guarantee for Foreigners
and Turkish Citizens who has not any Habitual Residence in Turkey (Cautio Judicatum
Solvi),” Sept. 15, 2017.

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 5.5 as s i s t a n c e t o ac c e s s th e c o u r t s 917

solvi.610 The relatively small number of state parties to the 1980 Hague
Convention on International Access to Justice, on the other hand, have agreed
not to apply this doctrine against citizens and persons habitually resident in
other contracting states:
No security, bond or deposit of any kind may be required, by reason only
of their foreign nationality or of their not being domiciled or resident in
the State in which proceedings are commenced, from persons (including
legal persons) habitually resident in a Contracting State who are plaintiffs
or parties intervening in proceedings before the courts or tribunals of
another Contracting State.611
Some states have gone even farther, with France,612 Algeria,613 and the
Dominican Republic614 being examples of states that have opted formally to
exempt all non-citizens, including refugees, from the requirement to post
security for costs.
But the predominant concern of refugees today is not general assistance to
access the courts, but rather assistance to engage the courts in order to
vindicate their right to be protected as refugees. In Uganda, for example, it
has been reported that “asylum-seekers are not allowed legal representation in

610
According to a survey of state practice, most states do not follow the WTO’s recommen-
dation to exempt refugees and other specific classes of non-nationals from the legal
definition of “tourists”; where no refugee-specific exemption otherwise exists, the permis-
sibility of requiring security for costs persists: see Council on General Affairs and Policy of
the Conference, “Report of the Experts’ Group on the Co-operation and Access to Justice
for International Tourists (Tourism Project),” Hague Conference on Private International
Law, March 2019, at xi, xxxvii–xl.
611
Convention on International Access to Justice, UNTS 26112, done Oct. 25, 1980, at
Art. 14.
612
N. Guimezanes, International Academy of Comparative Law National Report for France
(1994), at 18.
613
It was reported by the delegation of Algeria that “non-nationals in a regular situation with
insufficient resources were entitled to free legal aid, which was also offered as a matter of
law to victims of trafficking and smuggling of migrants without any conditions regarding
their resources or residency. The cautio judicatum solvi had been removed from the Code
of Civil and Administrative Procedure enacted in 2008. Legislation also provided for
recourse to interpretation services (including into sign language, if needed) when required
during civil, administrative, contentious, non-contentious or criminal proceedings”: UN
Committee on the Elimination of Racial Discrimination, “Consideration of reports,
comments and information submitted by States parties under article 9 of the
Convention (continued),” May 23, 2013, UN Doc. CERD/C/SR.2210, at [4].
614
“Any Haitian or other national is legally entitled to appeal to the Dominican justice system
if his or her rights have been violated and to receive compensation. Several years ago, the
Supreme Court ruled that foreign nationals seeking redress in the courts, no matter what
their migration status might be, need not pay a cautio judicatum solvi”: UN Human Rights
Committee, “Consideration of reports submitted by States parties under article 40 of the
Covenant: Fifth Periodic Report, Dominican Republic,” UN Doc. CCPR/C/DOM/5, Jan.
22, 2010, at [41].

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 918 5 ri gh t s of r ef ugees l awfu lly present

presenting their case. It has been argued by UNHCR that legal representation
would infringe upon the confidentiality of the asylum-seeker.”615 Nor are
refugee claimants entitled to assistance in presenting their claims for protec-
tion status in Afghanistan,616 though they may have a broader right to legal aid
in certain criminal and civil matters.617 Britain’s decision to reimburse legal aid
providers on a flat fee rather than hourly basis resulted in a 64 percent decrease
in non-profit providers assisting refugee claimants over a thirteen-year
period.618 Funding cuts to legal aid programs in the Canadian province of
Ontario mean that “legal assistance . . . is now limited to filling out the
administrative forms for filing a refugee claim . . . But the most essential part
of the refugee process, the hearing, is no longer covered and claimants are now
having to walk into courtrooms unrepresented.”619 Under the European
Union’s Procedures Directive, in contrast, state parties are required to provide
free “legal assistance and/or representation” for purposes of at least the first
review or appeal of a negative status determination.620 They may, however,
limit access to such assistance on the basis of financial need; limit its applic-
ability to designated counsel; set monetary and/or time limits; and deny such
assistance altogether where authorities determine that the appeal or review has
“no tangible prospect of success.”621
Refugee Convention, Art. 16 Access to Courts
...
2. A refugee shall enjoy in the Contracting State in which he
has his habitual residence the same treatment as a national
in matters pertaining to access to the courts, including legal
assistance and exemption from cautio judicatum solvi.

615
Refugee Law Project, “Refugees in the City: Status Determination, Resettlement, and the
Changing Nature of Forced Migration in Uganda,” Working Paper No. 6, July 2002, at 15.
616
UN Office on Drugs and Crime and UN Development Programme, “Global Study on
Legal Aid: Country Profiles”(2016), at 11.
617
Ibid. at 15.
618
“As a result, ‘legal aid deserts’ have emerged in different parts of the country due to a 56%
drop in the number of providers offering legal aid representation for immigration and
asylum cases since 2005 . . . There was an even greater reduction in the number of not-for-
profit providers, with only 36% remaining in 2018 compared with the number in 2005”:
J. Grierson, “Lack of Legal Aid puts Asylum Seekers’ Lives at Risk, Charity Warns,”
Guardian, July 19, 2018; see also Refugee Action, “Tipping the Scales: Access to Justice
in the Asylum System” (2018), at 5.
619
C. Lieberman and R. Stewart-Johnson, “Cuts to Legal Aid Ontario mean Asylum Seekers
are on their own, Refugee Lawyer says,” Global News, June 4, 2019.
620
EU Procedures Directive (2013), at Arts. 20–21.
621
Ibid. at Arts. 21(2)–(4), 20(3). Member states are directed, however, to ensure that access
to legal assistance “is not arbitrarily restricted and that the applicant’s effective access to
justice is not hindered”: ibid. at Art. 20(3).

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 5 .5 as s i s t a n ce t o ac ce s s t he c o u r t s 919

3. A refugee shall be accorded in the matters referred to in

paragraph 2 in countries other than that in which he has his
habitual residence the treatment granted to a national of the
country of his habitual residence.
Over the course of the drafting debates, it was decided that while all refugees
should have free access to the courts in all state parties, the more sophisticated
right to national treatment on all “matters pertaining to accessing the
courts”622 – in particular, eligibility for legal assistance, and exemption from
cautio judicatum solvi – would be extended to refugees on the basis of private
international law’s test of having established a “habitual residence.” This is
a standard that requires more than simple physical presence yet which is less
demanding than lawful stay.623 As under private international law, “residence”
means the place that is in fact the center of one’s interests624 – the state with
which the refugee “has the most real connexion.”625 But it is only “habitual”
once that presence becomes ongoing.626 Some time will in most cases be
required for a refugee to develop the sorts of personal and social linkages in
the asylum state that are evidence of the required connection, including such
factors as “family situation; the reasons which have led him to move; the length
and continuity of his residence; the fact that he is in stable employment; and his
intention as it appear[s] from all the circumstances.”627 Lawfulness of presence
as demonstrated by admission to a status assessment procedure is generally
622
“Free access” to the courts, as required by Art. 16(1), does not imply a right of refugees to
access courts without the payment of the usual court fees. In the French government’s
proposal for the Convention, adopted as the working model for Art. 16, refugees were to
have received “free and ready” access to the courts of law: France, “Draft Convention,” at
4. This led the British representative to observe that “the first paragraph of the French draft
spoke of ‘free and ready access’; . . . in English the words ‘free’ and ‘ready’ were synony-
mous in the context if used alone, but in conjunction ‘free’ might mean without payment
of court fees”: Statement of Sir Leslie Brass of the United Kingdom, UN Doc. E/AC.32/
SR.11, Jan. 25, 1950, at 7. On the motion of the Israeli delegate, the English-language text
was amended to refer solely to “free” access in order to avoid this interpretation: Statement
of Mr. Robinson of Israel, ibid. However, “Article 16 should . . . be read in conjunction
with Article 29, according to which refugees shall not be obliged to pay higher or other
charges than nationals of the State concerned”: Grahl-Madsen, Commentary, at 64. Thus,
“‘free access’ to courts does not mean that a refugee is free from the payment of any fees
which nationals have to pay in the same circumstances . . . [S]uch fees and charges may not
be higher than those levied on nationals”: Weis, Travaux, at 134.
623
The language of “habitual residence” was debated in the context of Art. 14, which
establishes artistic rights and rights to industrial property: see Chapter 5.4 at note 555 ff.
As Robinson affirms, “[t]he scope of the rights accorded to refugees under para. 2 is the
same as in Art. 14”: Robinson, History, at 113. See also Weis, Travaux, at 134.
624
See Chapter 3.1.3 at note 186.
625
Law Reform Commission of Ireland, “Domicile and Habitual Residence as Connecting
Factors in the Conflict of Laws” (1981), at [21].
626
See Chapter 3.1.3 at note 186.
627
Robin Swaddling v. Adjudication Officer, Dec. No. C-90/97 (CJEU, Feb. 25, 1999), at [29].

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 920 5 ri g ht s of re f u g e e s l a w f u l l y p r e s e n t

agreed to be an indicator of the required connection, though it is neither

mandatory nor sufficient.628 Fundamentally, habitual residence – like the
Refugee Convention’s notion of lawful presence – defines a middle ground
between simply having arrived in an asylum country and having been formally
authorized to stay there on an ongoing basis.
Despite the flexibility of the habitual residence standard, there will clearly be
some refugees who – especially shortly after arrival to seek asylum – will not yet
be habitually present in the asylum country.629 These refugees are only entitled
to claim the benefit of Art. 16(1) in addition to whatever access to the courts is
afforded non-citizens generally.630 They may, for example, bring an action to
secure a divorce631 or recover a debt,632 but need not be granted the forms of
practical assistance in accessing the courts envisaged by paras. 2 and 3 of Art.
16.633
Once a refugee is habitually present, however – which will in many cases be
long before a decision is reached on refugee status verification634 – he or she is
entitled also to receive “the same treatment as nationals in matters pertaining to
access to the Courts [emphasis added]”635 Art. 16(2)–(3) is a critical comple-
ment to Art. 14 of the Civil and Political Covenant, which, despite setting out
628
See Chapter 3.1.3 at note 192. “This right . . . is granted independently of recognition of
refugee status”: B. Elberling, “Article 16,” in A. Zimmermann ed., The 1951 Convention
Relating to the Status of Refugees and its 1967 Protocol: A Commentary 931 (2011)
(Elberling, “Article 16”), at 940.
629
“With the exception of new refugees who have not yet habitual residence anywhere, it is
difficult to envisage a refugee having no habitual residence”: Grahl-Madsen, Commentary,
at 60.
630
See generally Chapter 4.10. At this point, the operative provisions of the Refugee
Convention are Arts. 16(1) and 7(1), the latter stipulating that “[e]xcept where this
Convention contains more favourable provisions, a Contracting State shall accord to
refugees the same treatment as is accorded to aliens generally.” See Chapter 3.2.1.
631
Statement of Mr. Larsen of Denmark, UN Doc. E/AC.32/SR.11, Jan. 25, 1950, at 7.
632
Statement of Mr. Robinson of Israel, UN Doc. A/CONF.2/SR.8, July 5, 1951, at 12.
633
“[R]efugees who have not established habitual residence in any country will not benefit
from the provisions of paragraphs 2 and 3”: Grahl-Madsen, Commentary, at 67.
634
The drafters rejected the early draft which granted rights under Art. 16(2) and (3) on the
basis of “domicile or regular residence” in favor of the present language of “habitual
residence” based upon the view of the British representative that “the aim was to give
refugees the right to sue and be sued in the country of their residence whether it was the
country of their domicile or not”: Statement of Sir Leslie Brass of the United Kingdom, UN
Doc. E/AC.32/SR.11, Jan. 25, 1950, at 7. The revised draft adopted at the first session of the
Ad Hoc Committee refers only to “habitual residence”: Ad Hoc Committee, “First Session
Report,” at Annex I. Robinson observes that the “habitual residence” language was chosen
“to denote that a stay of short duration was not sufficient. On the other hand, the exercise
of the right was not made dependent on ‘permanent residence’ or on ‘domicile’ because it
was felt that it was a too far-reaching concept for the enjoyment of civil rights. ‘Habitual
residence’ means residence of a certain duration, but it implies much less than permanent
residence”: Robinson, History, at 107.
635
Refugee Convention, at Art. 16(2).

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 5.5 as s i s t a n c e t o ac c e s s th e c o u r t s 921

principles of fairness applicable to all persons (including refugees and other

non-citizens)636 who are before courts on criminal charges or in the context of
suits at law,637 does not explicitly address the practicalities of securing access to
courts.638
The Refugee Convention’s rule moreover has both an internal and an
external dimension.639 Within the country of habitual residence, refugees are
to enjoy the same practical means of accessing the courts as do citizens of that
country.640 In other countries, refugees are to be treated as citizens of their host
country.641 Thus, whatever dispensations are afforded citizens of the asylum
state, including by virtue of treaties of reciprocity, must be extended to refugees
in that country as well.642 This duty inheres even if the refugee seeking access to
the courts is habitually resident in a state which is not a party to the Refugee
Convention.643
The enhanced obligations under paras. 2 and 3 are general in scope,644
meaning, for example, that they require the provision to refugees of an inter-
preter to the extent necessary to ensure real access to judicial proceedings.645 The

636
See Chapter 4.10 at note 2819 ff.
637
The meaning attributed by the Human Rights Committee to a “suit at law” and in
particular its application to refugee status assessment are discussed in Chapter 4.10 at
note 2818 ff.
638
But “[a]lthough the right to free legal aid in civil cases is not expressly guaranteed, its
denial may, in certain circumstances, infringe the principle of ‘equality of arms’ and
[therefore] constitute a violation of the right to a fair hearing”: Jayawickrama, Judicial
Application, at 526.
639
The external dimension, found in para. 3, is a net addition over the cognate protections
established by the 1933 and 1938 refugee conventions: Robinson, History, at 112.
640
Refugees are to be “subject to the same conditions as nationals”: Statement of Sir Leslie
Brass of the United Kingdom, UN Doc. E/AC.32/SR.11, Jan. 25, 1950, at 7. Thus, “they will
be considered more favourably than aliens who are not enjoying such favourable treat-
ment”: Grahl-Madsen, Commentary, at 67.
641
“Refugees are to have free access to justice, not only in their country of residence but in any
other country party to the convention”: Secretary-General, “Memorandum,” at 30.
642
“They would be entitled in this respect to benefit under the system applied to nationals of
the country of asylum in pursuance of the treaties in force”: ibid.
643
“Just as in paragraph 1, this paragraph also applies to refugees residing in non-Contracting
States”: Grahl-Madsen, Commentary, at 64.
644
The Belgian representative, for example, observed that “the exemption from cautio
judicatum solvi was already provided for under the first sentence of paragraph 2, which
provided that a refugee should enjoy in that respect the same rights and privileges as
a national”: Statement of Mr. Herment of Belgium, UN Doc. A/CONF.2/SR.8, July 5, 1951,
at 13. See also Elberling, “Article 16,” at 942, noting that “Article 16, para. 2 is not . . .
limited to these two aspects, but refers to all ‘matters pertaining to access to the Courts.’”
645
By way of analogy, in the criminal law context the Human Rights Committee has
determined that an interpreter must only be made available if the accused or defense
witnesses have difficulty in understanding or in expressing themselves: Guesdon v. France,
HRC Comm. No. 219/1986, UN Doc. A/45/40, Vol. 2, decided July 25, 1990), at [10.2]–
[10.4], [11].

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two practical impediments of greatest concern to the drafters – the need for
exemption from cautio judicatum solvi, and access to legal assistance – are
expressly referenced in the text of Art. 16. First, under the rules of cautio judicatum
solvi some “countries admit foreigners to their courts of law, but request them, in
the absence of reciprocity, to deposit an amount at the court’s discretion [which] is
sufficient to cover the costs he will be compelled to pay the other party if he loses
the case.”646 Thus, if treated on par with other non-citizens, refugees could be
required to post security for costs in a civil action under a procedure not applicable
to citizens of the host state. By virtue of Art. 16(2) and (3), however, no such rule
may be invoked against habitually present refugees647 – meaning that continued
application of the cautio judicatum solvi regime648 until refugee status is formally
recognized, as occurs in Belgium, Croatia, the Netherlands, Slovenia, and
Turkey,649 is at odds with the requirement of Art. 16(2). Happily, though, this
concern is of ever-decreasing relevance. Even in 1951, the Belgian representative
to the Conference of Plenipotentiaries observed that “the practice of demanding
cautio judicatum solvi was dying out,”650 a view affirmed by more recent
developments,651 including the decisions of Algeria, the Dominican Republic,
and France652 to end this requirement for all non-citizens.
Second, and of greater contemporary importance, Art. 16(2) requires that
refugees be assimilated to nationals of their country of residence with respect
to “legal assistance.”653 This right to equal treatment is, of course, of no
practical utility to refugees where not even nationals benefit from a legal aid
program.654 But where legal aid is generally available, Art. 16(2) overcomes the
challenge of having to rely on the very general language of Art. 14 of the Civil
646
Grahl-Madsen, Commentary, at 63.
647
The result under Art. 14(1) of the Civil and Political Covenant would be less clear, it being
suggested only that “[t]he deposit of security in an unreasonable amount” would be
incompatible with the right of access to a court: Jayawickrama, Judicial Application, at
500. The duty to post security for costs is not, therefore, impermissible per se. Whether an
otherwise valid requirement applied only to non-citizens is allowable would be deter-
mined by reference to the duty of non-discrimination. See Chapter 1.5.5 at note 484 ff. for
a discussion of the tendency of the Human Rights Committee to defer to state assertions of
reasonable differentiation.
648
See text at note 646. 649 See text at notes 606–609.
650
Statement of Mr. Herment of Belgium, UN Doc. A/CONF.2/SR.8, July 5, 1951, at 13.
651
The ALI/UNIDROIT Principles of Transnational Civil Procedure (Sept. 27, 2016) provide
at Principle 3.3 that “[a] person should not be required to provide security for costs, or
security for liability for pursuing provisional measures, solely because that person is not
a national or resident of the forum state.”
652
See text at notes 612–614.
653
“With regard to legal aid or legal assistance, it is clear that the Article can only apply to
such benefits which are granted by the State under a State-supported scheme. In countries
where legal aid is solely granted by bar associations, the Article will certainly not apply”:
Grahl-Madsen, Commentary, at 67.
654
See also Elberling, “Article 16,” at 941(“[A] State which does not grant legal assistance to
its nationals is not obliged to instal such a system for the benefit of refugees either”).

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 5.5 assistance t o a ccess t he courts 923

and Political Covenant,655 understood to mean that “[a] state has a free choice
of the means to be used towards guaranteeing to litigants an effective right of
access to the courts. While the institution of a legal aid scheme constitutes one
of those means, other means that might be used include a simplification of
procedures.”656 Because the Refugee Convention requires the same treatment
as nationals as regards legal assistance before the courts, the decision of the
United Kingdom to reduce legal aid funding for refugee cases by setting a flat
fee (in contrast to the hourly billing system that is generally applicable)657 is an
example of a practice that is at odds with Art. 16(2).
As this example suggests, the most pressing practical question is whether
Art. 16(2) requires the provision to habitually present refugees of forms of
assistance to access the courts that are refugee-specific – most critically, of legal
assistance in the context of refugee status assessment. As initial assessments are
generally conducted by officials or administrative tribunals rather than by
“courts,”658 Art. 16 does not apply at this stage659 – meaning that neither the
Canadian province of Ontario’s refusal to fund appearances before the refugee
tribunal660 nor even the bar on legal representation before officials charged
with initial status assessment in Afghanistan and Uganda661 amounts to
a breach of Art. 16(2).662 But in the context of judicial review or another
form of appeal or reassessment conducted by a court of either general or
subject-matter-specific jurisdiction,663 Art. 16(2) is presumptively applicable –
meaning that “legal assistance” must in principle be provided at this level.

655
See Chapter 4.10 at note 2818. “[I]n contrast to the provision in the [Civil and Political
Covenant], article 16 of the 1951 Convention does not specifically restrict the right to legal
aid to criminal cases. Where States offer more generous terms to their nationals, such as
the provision of legal aid and interpreter services in civil cases too, refugees can invoke the
provisions of the 1951 Convention granting them the national standard of treatment”: da
Costa, “Rights of Refugees in the Context of Integration,” at 138.
656
Jayawickrama, Judicial Application, at 503–504, citing in support the decision of the
European Court of Human Rights in Andronicou and Constantinou v. Cyprus, (1997) 25
EHRR 491 (ECtHR, Oct. 9, 1997).
657
See text at note 618.
658
“[T]he extent to which [Art. 16] protects asylum seekers in the context of status determin-
ation procedures may well depend on the peculiarities of the legal system of the State of
refuge – or, a cynic might add, on the skill of that State in drafting and defending its
restrictive regime”: Elberling, “Article 16,” at 945.
659
“The paragraph is limited to courts of law and does, therefore, not apply to access to
administrative authorities”: Grahl-Madsen, Commentary, at 66; see also da Costa, “Rights
of Refugees in the Context of Integration,” at 135.
660
See text at note 619. 661 See text at notes 615–617.
662
But see Elberling, “Article 16,” at 940, arguing more generally that “systems which only
grant refugees access to legal aid for matters other than status determination are in violation
of Art. 16, para. 2.”
663
As Elberling rightly observes, Art. 16 “only requires that the State allow refugees to bring
their claims to the courts . . . not that it should provide the courts with subject-matter
jurisdiction or enact substantive law provisions which would allow these claims to be

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It might nonetheless be objected that under Art. 16 refugees need only

receive “the same treatment as nationals” in relation to legal assistance. On
a narrow reading, nationals would never seek legal assistance in relation to
a review or appeal of a negative assessment of refugee status (since nationals
cannot be refugees in their own country).664 Approached in this way, refugees
would not need to be granted legal aid either. But the better tack is to identify
the underlying factual predicate for the provision of legal aid in a given
jurisdiction – for example, whether it is limited only to certain types of cases
(e.g. criminal or family law), or whether it is instead provided to citizens more
broadly in situations where there is a significant risk of loss of liberty – and
then to apply that premise in a non-discriminatory way to the situation of
someone seeking the review or appeal of a negative refugee status assessment
before the courts.665 If nationals would receive legal aid when faced with a risk
of comparable gravity, then so too should habitually present refugees.666 In
view of the serious implications of a refusal to recognize refugee status, the
general thrust of the European Union rule mandating free legal aid on a review
or appeal667 thus aligns with the requirements of Art. 16(2).

successful. It follows that any restrictive measure which can be construed as only restrict-
ing the latter aspect of judicial remedies is not in violation of Art. 16”: ibid. at 944. The
importance of subject-matter jurisdiction for the invocation of Art. 16 is discussed in
Chapter 4.10 at note 2813.
664
By definition, a Convention refugee must be “outside the country of his nationality”:
Refugee Convention, at Art. 1(A)(2).
665
Another way of reaching much the same conclusion would be to recognize that “[t]he
structure of Art. 16, para. 2, which provides for equal treatment of two groups of persons,
along with the humanitarian aim of the 1951 Convention, invites its interpretation as
a prohibition of discrimination, which would also cover the kind of ‘indirect’ discrimi-
nation that arises from treating proceedings differently from proceedings used by people
in general”: Elberling, “Article 16,” at 945. Importantly, until and unless there has been
a fair and final determination that an individual does not in fact qualify as a refugee, the
declaratory nature of refugee status requires that she or he be treated as a refugee, in
particular by the provisional respect for relevant refugee rights. See Chapter 3.1 at note
34 ff.
666
There is, in contrast, a risk of error if reliance is placed simply on categorical distinctions,
e.g. between criminal and civil cases. For example, the New Zealand High Court deter-
mined that Art. 16 was complied with when the refusal of legal aid in the context of refugee
status assessment was based on the general rules applicable to civil cases: Aivazov
v. Refugee Status Appeals Authority, [2005] NZAR 740 (NZ HC, Aug. 26, 2005), at [22],
[24], [27].
667
See text at note 620.

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 6

Rights of Refugees Lawfully Staying

A significant number of important rights accrue to refugees only once they are
“lawfully staying” in a state party. These include the rights to engage in wage-
earning employment and to practice a profession, freedom of association,
access to housing and welfare, to benefit from labor and social security legisla-
tion, and to receive travel documentation.
As previously described,1 a refugee is lawfully staying (résidant régulièrement)
when his or her presence in a given state is ongoing in practical terms. This may
be because he or she has been granted asylum consequent to formal recognition
of refugee status. But refugees admitted to a so-called “temporary protection”
system or other durable protection regime are also lawfully staying. So long as
the refugee enjoys officially sanctioned, ongoing presence in a state party, he or
she is lawfully staying in the host country; there is no requirement of a formal
declaration of refugee status, grant of the right of permanent residence, or
establishment of domicile. On the other hand, rights which require lawful stay
do not accrue to refugees awaiting the results of a formal process of status
verification, as the purely provisional nature of such persons’ presence in the
host state is at odds with the Convention’s reservation of these more integration-
oriented rights for those who are expected to remain in the state party for
a significant period of time.

6.1 Right to Work

In much of the less developed world, access by refugees to the national labor
market is either denied altogether or extremely limited. Host states are often
concerned that allowing refugees to work will drive down wages for their own
citizens, thereby creating tensions between refugees and their hosts. As
UNHCR has observed,
The arrival of large numbers of asylum-seekers and the absorption of some
or even all of them as refugees, even on a temporary basis, can create
serious strains for host countries. This is particularly the case for poorer
communities where the ability of the people and the inclination of the
government to shoulder the resultant burden may be severely diminished

1
See Chapter 3.1.4 at note 202 ff.
925

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 926 6 r ights of r efugees l awfully staying

by economic difficulties, high unemployment, declining living standard,

and shortages in housing and land . . . Inevitably there are tensions
between international obligations and national responsibilities in such
circumstances, with the result, in a number of States, that priority is
accorded to nationals over all aliens, including refugees, in fields such as
employment.2
Thus, for example, refugees in Cambodia are granted no work authorizations,
“reducing them to little more than illegal immigrants.”3 Rohingya refugees in
Thailand are similarly considered “illegal immigrants,” and granted no right to
work whatsoever.4
In other cases, the employment of refugees may not be formally barred, but
there are de facto barriers that seriously restrict access to the labor market.
Sudan’s confinement of refugees to enclosed camps has made it difficult for
them to access urban labor markets, such as those in Kassala and Khartoum.5
Sri Lankan refugees in India were subject to evening curfews and only permit-
ted to leave the camps to work during certain hours of the day; those who
needed to be away for extended periods could only do so if their request was
supported by a letter from their employer.6 Under Zambian law, access by
refugees to the job market is both expensive and logistically complex:
The law requires refugees to apply for and obtain a job offer from an
employer before they can receive a work permit, which costs about
US$230. To obtain a permit, refugees must submit an application to the
Labor Department of the Office of Immigration with a letter from the
[Office of the Commissioner for Refugees]. The Chief Immigration Officer
(CIO) is able to issue permits provided that the persons are already in the
country and have a sufficient level of education, qualifications, skills, and
financial resources, and that no Zambian is qualified for the job. The
permits may specify conditions regarding the area in which the bearers
can work and the kind of work they can do “as the CIO think[s] fit.” The
length of the work permit, which can be renewed to a maximum duration
of five years (from its issuance), is also at the discretion of the CIO.7

2
UNHCR, “Implementation of the 1951 Convention and the 1967 Protocol relating to the
Status of Refugees,” UN Doc. EC/SCP/54, July 7, 1989, at [11].
3
“Cambodia: Precarious Position of Refugees,” (2002) 114 JRS Dispatches (June 28, 2002).
4
Thailand deems Rohingya to be illegal migrants, without considering the circumstances at
their point of origin. Persons arriving from Cambodia, Laos, and Burma are allowed to work
after national verification and registration, but Rohingya are not eligible even if they are not
in detention: S. Ganjanakhundee, “Thailand’s Refusal to Recognise Rohingya as Refugees
Leaves them in Illegal Limbo,” The Nation, Mar. 5, 2018.
5
R. Zetter and H. Ruaudel, “Refugees’ Right to Work and Access to Labor Markets – An
Assessment: Part II, Country Cases,” Knomad, Sept. 2016 (Zetter and Ruaudel, “Right to
Work: Part II”), at 164.
6
Ibid. at 54. 7 Ibid. at 225–226.

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 6.1 right to work 927

Similarly demanding requirements must be met by refugees seeking employ-

ment in Egypt.8
Due to formal or informal barriers, refugees are often forced to work
illegally in order to survive. Rohingya refugees in Bangladesh have been driven
to obtain (fraudulent) Bangladeshi identification cards, birth or school certifi-
cates, and other documents to avoid discrimination and attain access to
employment that is otherwise prohibited.9 Colombian refugees in Ecuador
have been relegated to work in jobs outside the country’s social security
system.10 Refugees in Chad barred from taking employment nonetheless
often leave their camps in order to seek work in established settlements, local
villages, and urban areas. Because this work is illegal, refugees are at the mercy
of their employers;11 Sudanese women refugees working in Chadian villages
have, for example, faced abuse and exploitation at the hands of employers or
even resorted to “survival sex” as a way to make ends meet.12 In other cases, the
existence of heavy penalties for employing irregular workers, including refu-
gees, has deterred employers from hiring refugees. In Iran, for example, “the
Ministry of Labour and Social Affairs subjected employers to heavy fines and
imprisonment and shut down many small businesses that employed undocu-
mented Afghan refugees.”13
There are, however, important exceptions to the exclusion of refugees from
authorized employment, even in poorer countries facing their own employ-
ment market challenges. Zimbabwean law provides that refugees “shall, in
respect of wage-earning employment, be entitled to the same rights and subject
to the same restrictions, if any, as are conferred or imposed generally on
persons who are not citizens of Zimbabwe.”14 Judicial intervention in South
Africa has resulted in even persons awaiting refugee status verification being
allowed to work,15 though employment in one of the most viable fields – the
private security industry – is ordinarily restricted to refugees who secure
8
“Article 53 of the Egyptian Constitution provides that foreigners who have been granted
political asylum may be eligible for work permits. In practice, however, obtaining a work
permit is difficult for most recognized refugees. Work permits are costly, the foreigner must
find an employer to sponsor her and pay all fees. The refugee must also fulfill the
requirement that no Egyptian be available to fill the same job”: Asylum Access and
Refugee Work Rights Coalition, “Global Refugee Work Rights Report” (2014), at 26.
9
R. Zetter and H. Ruaudel, “Refugees’ Right to Work and Access to Labor Markets – An
Assessment: Part I, Synthesis,” Knomad, Sept. 2016 (Zetter and Ruaudel, “Right to Work:
Part I”), at 25.
10
See ibid. at 16; J. Acero et al., “Plan de acción de Brasil: Evaluación del grupo articulador
regional del plan de acción de Brasil, 2014–2017” (Feb. 2018), at 46.
11
Zetter and Ruaudel, “Right to Work: Part II,” at 15. 12 Ibid. at 15.
13
Zetter and Ruaudel, “Right to Work: Part I,” at 16.
14
Zimbabwe Refugees Act (Law No. 13, 1983), at s. 12(3), cited in Lawyers’ Committee for
Human Rights, African Exodus (1995) (LCHR, African Exodus), at 104.
15
Watchenuka Case, Dec. No. 1486/02 (SA HC, Nov. 18, 2002); affirmed in Minister of Home
Affairs v. Watchenuka, (2004) 1 All SA 21 (SA SCA, Nov. 28, 2003).

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 928 6 ri gh t s of r ef ugees l awfu lly staying

permanent resident status.16 Lebanon allows refugees to seek employment, but

in line with a policy to “protect the Lebanese in their places of work and
employment as a whole” now restricts them to the construction, administra-
tion, and small crafts sectors.17
Some developed states also place restrictions on the right to work, albeit in
varied forms. In Japan, refugees whose claims are pending are barred from
work.18 Purportedly aimed at protecting Japanese jobs,19 this restriction applies
without regard to duration of presence or whether a refugee has Japanese-born
children.20 In 2013, Israel closed all but four of the immigration offices respon-
sible for the renewal of “conditional release permits,” which serve as informal
work permits for refugees. Given the need to renew such permits every few
months, the sudden closures caused widespread chaos for the 50,000 people for
whom the failure to renew would result not only in loss of their livelihoods, but
also in subjection to arrest and detention.21 Syrian refugees in Turkey may only
apply for work permits through prospective employers and after a six-month
period; work authorization is moreover limited to the province in which they
first registered for temporary protection. Furthermore, “the proportion of refu-
gees and asylum-seekers cannot exceed 10% of a company’s workforce, and each
individual’s work permit is tied to a single place of employment.”22 The
European Union authorizes a somewhat longer delay, requiring only that
member states authorize refugees to engage in employment “immediately
after . . . protection has been granted,”23 though subject to the caveat that work
rights must in any event be granted if the status assessment procedure is still
underway nine months after the protection claim was lodged.24
16
See Zetter and Ruaudel, “Right to Work: Part II,” at 150; see also Section 23(1)(a) of the
Private Security Industry Regulation Act of 2001.
17
L. Al-Arian, “In Lebanon, Palestinians Protest New Employment Restrictions,” NPR,
July 26, 2019.
18
M. Funakoshi et al., “Born in Limbo: Japan Forces a Harsh Choice on Children of Migrant
Families,” Reuters, Nov. 22, 2016 (Funakoshi, “Born in Limbo”).
19
According to one lawmaker and special adviser to Japanese Prime Minister Shinzo Abe, the
restrictions are in response to “an allergy towards the word ‘immigration’ . . . People are
worried about public security. They worry that foreign workers would eat up Japanese
jobs”: T. Wilson et al., “Banned from Working, Asylum Seekers are Building Japan’s Roads
and Sewers,” Reuters, Aug. 8, 2016.
20
Funakoshi, “Born in Limbo.”
21
Human Rights Watch, “Make Their Lives Miserable: Israel’s Coercion of Eritrean and
Sudanese Asylum Seekers to Leave Israel,” Sept. 2014, at 8, 55–59.
22
Amnesty International, “No Safe Refuge: Asylum-Seekers and Refugees Denied Effective
Protection in Turkey,” Mar. 2016, at 29–30.
23
EU Qualification Directive (2011), at Art. 26(1).
24
EU Reception Directive (2013), at Art. 15(1). In practice, there is a significant diversity of
practice among EU states. “[I]n Sweden a refugee is allowed to work immediately upon
applying for asylum, in Germany after three months, in the Netherlands after six months,
and in France after nine months”: M. den Heijer et al., “Coercion, Prohibition, and Great
Expectations: The Continuing Failure of the Common European Asylum System,” (2016)

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 6 .1 righ t to wor k 929

Refugees channeled into so-called “temporary protection” systems have often

had access only to truncated work rights. Australia allows temporary protection
visa (TPV) holders to work, but its renewal of TPV status in three-year incre-
ments has sometimes impeded beneficiaries’ ability to find dependable
employment.25 New Zealand requires applicants for temporary protection
visas – the designated visa category for refugees in a “mass arrival group” of
thirty persons or more – to apply for a work, student, or visitor visa as
a condition of eligibility; the applicable regulations do not, however, permit
the issuance of more than one work visa per family absent “exceptional
circumstances.”26 The European Union’s Temporary Protection Directive, in
contrast, requires that “persons enjoying temporary protection [shall be author-
ized] to engage in employed or self-employed activities,”27 though it authorizes
priority to be given to EU citizens and other most-favored foreigners.28
Even where refugees in developed countries do not face legal barriers to seeking
work, they may nonetheless encounter bureaucratic and regulatory barriers to
securing employment. Until 2019, for instance, Germany required refugee claim-
ants applying for work permits to produce an employment offer containing
a detailed job description. For the first fifteen months following registration of
the asylum application, authorities in some regions conducted an examination to
determine whether there were other job-seekers – in particular, German citizens
and foreigners with residence permits – who might take the available position.29
In addition, refugees often face many of the same obstacles to securing work
experienced by other foreigners. In Portugal, for example, refugees are subject

53(3) Common Market Law Review 607 (den Heijer, “Common European Asylum
System”). See generally E. Poptcheva et al., “Work and Social Welfare for Asylum-
Seekers and Refugees: Selected EU Member States,” Dec. 2015.
25
Andrew & Renata Kaldor Centre for International Refugee Law, “Research Brief:
Temporary Protection Visas (TPVs) and Safe Haven Enterprise Visas (SHEVs),” Aug.
2018, at 4.
26
New Zealand Immigration Operational Manual at ss. C8.10.1, C8.10.5, www
.immigration.govt.nz/opsmanual/#46723.htm, accessed Mar. 1, 2020.
27
Council Directive on minimum standards for giving protection in the event of a mass influx
of displaced persons and on the measures promoting a balance of efforts between Member
States in receiving such persons and bearing the consequences thereof, Doc. 2001/55/EC
(July 20, 2001) (EU Temporary Protection Directive), at Art. 12.
28
Ibid.
29
“[F]or a period of 15 months following the registration of the asylum application and the
issuance of the Aufenthaltsgestattung, the job centre usually has to carry out a ‘priority
review,’ i.e. an examination of whether there is another job seeker who is suited for the
offered position and who has a better status in terms of employment regulations, in
particular German citizens or foreigners with a secure residence permit. As of
August 2016, following an addendum to the Employment Regulation
(Beschäftigungsverordnung), this ‘priority review’ has been suspended for three years in
most parts of Germany . . . In any case, the priority review is not mandatory after 15 months
of stay”: Asylum Information Database, “Country Report: Germany 2018” (2019), at 83,
www.asylumineurope.org, accessed Mar. 1, 2020.

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 930 6 ri g h t s of r ef ugees lawfu lly staying

to general rules regarding the presentation of original diplomas or, in the

absence of these, a statement from an embassy or other entity representing
the country of origin.30 More generally, while differences of culture and
language, local unemployment, and discrimination may all work against any
migrant’s success in the job market, there is evidence that refugees may be
more adversely impacted and thus more likely to be both underemployed and
overqualified than even other migrants:31
Compared to other third-country migrants, refugees face a number of
particular barriers to accessing the labour market. These obstacles include
the loss of identity documentation and qualification certificates, non-
acceptance of qualifications or educational attainment, trauma and uncer-
tainty, anxiety over family separation, the long period of inactivity in the
asylum system, and limited social networks. These problems usually lead
to their strong underemployment in the host countries. As a result, the
employment rate amongst those third-country migrants who came to the
EU seeking international protection is much lower than for all migrants.32
In response, many developed host states have established programs designed to
assist refugees to adapt to local labor markets. Employment schemes involving
subsidies and other benefits to those who employ refugees have, for example, been
established in Denmark, Sweden, and Finland,33 while vocational training pro-
grams are available in Austria and Belgium to both recognized refugees and those
whose claims are under consideration.34 The United States has traditionally placed
tremendous emphasis on early employment for refugees; indeed, some arrange-
ments between government and voluntary agency partners require refugees to
accept any reasonable job offer to remain eligible for public assistance.35

30
While a 2016 legislative order of the Directorate-General for Education (DGE) addressed
the exemption of these requirements for refugee claimants and others in exceptional
circumstances, “the guidelines are applicable only to children and young adults, given
that in accordance to the law the competences of the DGE are limited to the preschool,
basic and secondary education levels”: “Access to the Labour Market: Portugal,” Asylum
Information Database, “Country Report: Portugal 2018” (2019), at 80, www
.asylumineurope.org, accessed Mar. 1, 2020.
31
F. Tanay et al.,“How are Refugees Faring on the Labour Market in Europe? A First
Evaluation based on the 2014 EU Labour Force Survey Ad Hoc Module,” OECD and
European Commission Working Paper 1/2016, at 27. See also Zetter and Ruaudel, “Right to
Work: Part II,” at 128.
32
J. Peschner et al., “Mobility and Migration in the EU: Opportunities and Challenges”
(2015), at 193.
33
K. Foti and A. Fromm, “Approaches to the Labour Market Integration of Refugees and
Asylum Seekers” (2016), at 32–33.
34
Ibid. at 30.
35
States generally have broad discretion in their use and implementation of federal funds for such
arrangements. Those administering one program in particular, the Refugee Cash Assistance
(RCA) program, establish their own income requirements and other conditions of eligibility,
duration, and level of benefits, as well as sanctions for non-compliance: B. Boland and

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 6.1 ri g ht t o w o r k 931

6.1.1 Wage-Earning Employment

Refugee Convention, Art. 17 Wage-Earning Employment
1. The Contracting States shall accord to refugees lawfully
staying in their territory the most favourable treatment
accorded to nationals of a foreign country in the same circum-
stances, as regards the right to engage in wage-earning
employment.
2. In any case, restrictive measures imposed on aliens or
the employment of aliens for the protection of the national
labour market shall not be applied to a refugee who was
already exempt from them at the date of entry into force of
the Convention for the Contracting State concerned, or
who fulfils one of the following conditions:
(a) He has completed three years’ residence in the country;
(b) He has a spouse possessing the nationality of the country
of residence. A refugee may not invoke the benefit of this
provision if he has abandoned his spouse;
(c) He has one or more children possessing the nationality of
the country of residence.
3. The Contracting States shall give sympathetic consideration
to assimilating the rights of all refugees with regard to wage-
earning employment to those of nationals, and in particular
of those refugees who have entered their territory pursuant to
programmes of labour recruitment or under immigration
schemes.
Economic, Social and Cultural Covenant, Art. 6
1. The States Parties to the present Covenant recognize the
right to work, which includes the right of everyone to the
opportunity to gain his living by work which he freely chooses

A. Gaffney, “Understanding the Intersection between TANF and Refugee Cash Assistance
Services: Findings from a Survey of State Refugee Coordinators,” TANF-RCA Brief, OPRE
Report No. 2017-75, Sept. 2017, at 1, 3. To receive RCA and similar benefits, many states such as
Oklahoma, Minnesota, and Texas require refugees to accept “appropriate” offers of employ-
ment, as determined by the service provider, as a condition of eligibility: see Oklahoma
Department of Human Resources, 340:60-1-6 Program eligibility and procedures, Sept. 17,
2018, www.okdhs.org/library/policy/Pages/oac34006001-6000.aspx, accessed Mar. 1, 2020
(providing that refugee cash assistance benefits are “closed” for the entire household when
a qualifying household member “refuses or fails to accept appropriate employment” without
good cause); Minnesota Department of Human Services, Combined Manual, 0030.03 Refugee
Cash Assistance, www.ymcahouston.org/, accessed Mar. 1, 2020 (requiring recipients of refugee
cash assistance to “accept appropriate job offers”).

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 932 6 rights of r efugees l awfully staying

or accepts, and will take appropriate steps to safeguard this

right.
2. The steps to be taken by a State Party to the present Covenant
to achieve the full realization of this right shall include
technical and vocational guidance and training pro-
grammes, policies and techniques to achieve steady eco-
nomic, social and cultural development and full and
productive employment under conditions safeguarding
fundamental political and economic freedoms to the
individual.
Given the breadth of work rights protected under general human rights
law, it might seem unnecessary to give the Refugee Convention’s Art. 17 much
attention. The contemporary value of Art. 17 – limited as it is to refugees
“lawfully staying,” and even then presumptively subject to whatever conditions
are imposed by the asylum state on the employment of most-favored non-
citizens – seems at first glance to compare unfavorably with the wonderfully
simple requirement of Art. 6 of the Economic Covenant, establishing “the right
of everyone to the opportunity to gain his living by work which he freely
chooses or accepts.” Since refugees are part of “everyone”36 and everyone can
“gain his living by work” in any state party to the Covenant, might it not be the
case – at least since the entry into force of the Economic Covenant in 1976, and
in particular given the pervasive overlap of accession to the two treaties37 – that
a refugee-specific right to work is now largely superfluous?38 Why would
a refugee ever choose or need to navigate the more complex requirements of
Art. 17 of the Refugee Convention?
The traditional answer was that Art. 17 remained critical because, despite
the Economic Covenant’s sweeping language, the supervisory Committee on
Economic, Social and Cultural Rights had treated the right to work as mainly

36
UN Committee on Economic, Social and Cultural Rights, “General Comment No. 20: Non-
discrimination in Economic, Social and Cultural Rights,” UN Doc. E/C.12/GC/20, July 2,
2009, at [30]. See text at note 42.
37
See Chapter 1.5.4 at note 387.
38
“In most [human rights] instruments, the right to work is expressed as a universal entitle-
ment, unhindered by the concept of citizenship or any other ground of distinction. By
contrast . . . the 1951 Convention relating to the Status of Refugees limits its . . . right to
work by requiring some level of attachment . . . and the standard of protection is not the
same as that enjoyed by citizens”: P. Mathew, Reworking the Relationship between Asylum
and Employment (2012) (Mathew, Asylum and Employment), at 54. See also A. Edwards,
“Article 17,” in A. Zimmermann ed., The 1951 Convention Relating to the Status of Refugees
and its 1967 Protocol: A Commentary 951 (2011) (Edwards, “Article 17”), at 972 (“In many
ways . . . Art. 17 [of the Refugee Convention] . . . has been surpassed by developments in
international human rights law”).

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 6.1 r i g ht t o w o r k 933

a prohibition of unjust denial of work and subjection to forced labor39 – matters

of much less immediate salience to refugees than simply being able freely to look
for and accept offers of employment in the first place. And at least as important,
except in fairly extreme cases bordering on exploitation, the Committee on
Economic, Social and Cultural Rights was traditionally slow to critique exclu-
sions from employment based on citizenship.40 Craven attributes this reluctance
to the overwhelming weight of state practice, noting that “it is somewhat unlikely
that States would consider themselves bound by a provision forcing them to
eliminate any restrictions on the employment of aliens.”41
But in 2005 the UN’s Committee on Economic, Social and Cultural Rights
adopted an interpretation of Art. 6 requiring that “[t]he labour market must be
open to everyone under [a state’s] jurisdiction.”42 This was followed in 2009 by an
explicit determination that “[t]he ground of nationality should not bar access to
Covenant rights”:43
The Covenant rights apply to everyone including non-nationals, such as
refugees, asylum-seekers, stateless persons, migrant workers and victims
of international trafficking, regardless of legal status and documentation
[emphasis added].44
Indeed, the Committee has recently been even more emphatic, determining
that “[a]ll persons under the jurisdiction of the State concerned should enjoy

39
M. Craven, The International Covenant on Economic, Social and Cultural Rights:
A Perspective on its Development (1995) (Craven, ICESCR Commentary), at 205.
40
The Committee has been described as exhibiting a “[r]eluctance . . . to be unequivocal in its
defence of the equal treatment of aliens”: Craven, ICESCR Commentary, at 173. The
Human Rights Committee has shown a comparable preparedness to assume the legitimacy
of distinctions in the allocation of rights based on citizenship: see Chapter 1.5.5 at note 471
ff. More generally, “job requirements may not in themselves be deemed to be
discrimination . . . [I]t is not an easy task to establish a clear line making it legitimate to
resort to ‘inherent requirements’ or ‘security of the State’”: K. Drzewicki, “The Right to
Work and Rights in Work,” in A. Eide et al. eds., Economic, Social and Cultural Rights:
A Textbook 169 (1995), at 178.
41
Craven, ICESCR Commentary, at 174. It is possible, however, that the argument against
discrimination would be better received if predicated on the overarching obligation set by
Art. 26 of the Civil and Political Covenant: see generally Chapter 1.5.5 at note 453 ff. On the
other hand, “close to 50 of the [domestic] constitutions that recognise a right to work
appear to recognise a constitutional right to work for all persons that is not conditioned on
citizenship”: Mathew, Asylum and Employment, at 57–58.
42
UN Committee on Economic and Social Rights, “General Comment No. 18: The Right to
Work,” UN Doc. E/C.12/GC.18, Feb. 6, 2006, at [12b].
43
UN Committee on Economic, Social and Cultural Rights, “General Comment No. 20: Non-
discrimination in Economic, Social and Cultural Rights,” UN Doc. E/C.12/GC/20, July 2,
2009, at [30].
44
Ibid. See also UN Committee on Economic, Social, and Cultural Rights, “General
Comment No. 23: Right to Just and Favourable Conditions of Work,” UN Doc. E/C.12/
GC/23, Apr. 27, 2016, at [5].

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 934 6 ri gh t s of r ef ugees l awfu lly staying

Covenant rights . . . includ[ing] asylum seekers and refugees, as well as other

migrants, even when their situation in the country is irregular [emphasis
added].”45 It has also been made clear that refugees and asylum-seekers are
examples of disadvantaged and marginalized populations,46 thus benefitting
from the rule that “even in times of severe resource constraints, [the work
rights of] disadvantaged and marginalized individuals and groups must be
protected by the adoption of relatively low-cost targeted programmes.”47
These interpretive commitments are potentially very significant, suggesting as
they do that all state parties to the Economic Covenant must grant work rights to
all non-citizens, including refugees. In reviewing state compliance, the Committee
has moreover frequently expressed its “concern” about the lack of access to
employment opportunities for asylum-seekers and refugees.48 On occasion it

45
UN Committee on Economic, Social and Cultural Rights, “Duties of States towards
Refugees and Migrants under the International Covenant on Economic, Social and
Cultural Rights,” UN Doc. E/C.12/2017/1, Mar. 13, 2017, at [3].
46
“In monitoring states, the [Committee] has identified many groups as vulnerable,
including . . . migrants [and] refugees”: B. Saul et al., The International Covenant on
Economic, Social and Cultural Rights: Commentary, Cases, and Materials (2014) (Saul,
ICESCR Commentary), at 290. Specifically, “[b]ecause of their often precarious status, refugee
workers remain vulnerable to exploitation, discrimination and abuse in the workplace, may
be less well paid than nationals, and have longer working hours and more dangerous working
conditions. States parties should enact legislation enabling refugees to work and under
conditions no less favourable than for nationals”: UN Committee on Economic, Social,
and Cultural Rights, “General Comment No. 23: Right to Just and Favourable Conditions
of Work,” UN Doc. E/C.12/GC/23, Apr. 27, 2016, at [13(i)]. See also UN Committee on
Economic, Social, and Cultural Rights, “General Comment No. 24: State Obligations under
the International Covenant on Economic, Social and Cultural Rights in the Context of
Business Activities,” UN Doc. E/C.12/GC/24, Aug. 10, 2017, at [8]. The Committee has
also explicitly recognized that women refugees face intersectional discrimination by virtue of
the combination of sex and refugee status: UN Committee on Economic, Social, and Cultural
Rights, “General Comment No. 16: The Equal Rights of Men and Women in the Enjoyment
of all Economic, Social and Cultural Rights,” UN Doc. E/C.12/2005/4, Aug. 11, 2005, at [5].
47
UN Committee on Economic and Social Rights, “General Comment No. 18: The Right to
Work,” UN Doc. E/C.12/GC.18, Feb. 6, 2006, at [12(b)(ii)].
48
See e.g. “Concluding Observations on the Combined Fifth and Sixth Periodic Reports of
Mexico,” UN Doc. E/C.12/MEX/CO/5–6, Apr. 17, 2018, at [24]; “Concluding Observations
on the Fifth Periodic Report of Australia,” UN Doc. E/C.12/AUS/CO/5, July 11, 2017, at
[24]; “Concluding Observations on the Sixth Periodic Report of Cyprus,” UN Doc. E/C.12/
CYP/CO/6, Oct. 28, 2016, at [15]; “Concluding Observations on the Second Periodic
Report of Lebanon,” UN Doc. E/C.12/LBN/CO/2, Oct. 24, 2016, at [23]; “Concluding
Observations on the Fifth Periodic Report of Costa Rica,” UN Doc. E/C.12/CRI/CO/5, Oct.
21, 2016, at [25]; “Concluding Observations on the Combined Initial and Second Periodic
Reports of Thailand,” UN Doc. E/C.12/THA/CO/1–2, June 19, 2015, at [15]; “Concluding
Observations on the Second Periodic Report of China,” UN Doc. E/C.12/CHN/CO/2,
June 13, 2014, at [42]; “Concluding Observations on the Second to Fourth Periodic
Reports of Rwanda,” UN Doc. E/C.12/RWA/CO/2–4, June 10, 2013, at [11]; and
“Concluding Observations on the Third Periodic Report of Azerbaijan,” UN Doc. E/
C.12/AZE/CO/3, June 5, 2013, at [9].

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 6.1 r i g ht t o w o r k 935

has gone farther – for example, inviting Germany, Morocco, Sri Lanka, and the
United Kingdom specifically to “ensure” or “provide” refugees with access to
employment,49 suggesting that Serbia needed to “intensify” its efforts to combat
employment discrimination against refugees,50 and advising Uzbekistan that it
needed to “take practical steps” to enable refugees to work legally.51
It is, however, striking that although most countries systematically prohibit or
at least significantly constrain the ability of non-citizens to work, the Committee
has never called for the dismantling of such laws. This very cautious approach52
may suggest that despite all of its otherwise inclusive thinking on refugee work
rights, the Committee on Economic, Social and Cultural Rights acknowledges that
the concrete reality [is] that most states impose labour market restrictions
on foreigners; they do so because they believe international law entitles
them to do so; and most states have not sought to formally interpret or
reserve their Article 6 obligations because it is not understood as requiring
them to guarantee the right to work to any non-citizen.53
In other words, the duty to grant work rights to all set by Art. 6 of the Covenant
is assumed by states to be constrained by their overarching sovereign right to
exclude non-citizens from their territory, or in the alternative to admit them
only under such conditions as they choose – including the denial of work
rights. In truth, the very notion that rights can be “traded away” in order to
secure admission to a state might sensibly be contested. After all, if rights are
truly inalienable, on what basis may they lawfully be renounced? And why in
particular is it assumed to be fair to ask non-citizens to give up work rights as
a condition of admission but not, for example, to renounce the right to equality
before courts and tribunals or to security of person?
The legality of the assumed right of states to withhold work rights from non-
citizens in return for admission has been thoughtfully challenged by Mathew, who

49
“Concluding Observations of the Committee on Economic, Social and Cultural Rights:
Germany,” UN Doc. E/C.12/DEU/CO/5, July 12, 2011, at [13]; “Concluding Observations
on the Fourth Periodic Report of Morocco,” UN Doc. E/C.12/MAR/CO/4, Oct. 22, 2015, at
[14]; “Concluding Observations on the Fifth Periodic Report of Sri Lanka,” UN Doc. E/
C.12/LKA/CO/5, Aug. 4, 2017, at [20]; and “Concluding Observations on the Sixth
Periodic Report of the United Kingdom of Great Britain and Northern Ireland,” UN
Doc. E/C.12/GBR/CO/6, July 14, 2016, at [24].
50
“Concluding Observations on the Second Periodic Report of Serbia,” UN Doc. E/C.12/
SRB/CO/2, July 10, 2014, at [11].
51
“Concluding Observations on the Second Periodic Report of Uzbekistan,” UN Doc. E/
C.12/UZB/CO/2, June 13, 2014, at [9].
52
Mathew accurately captures this tentativeness, observing that “[m]any concluding obser-
vations touch on the question of the right to work for refugees and asylum seekers”; that the
supervisory committee “has also recommended that specific laws be introduced” and at
times “expressed concern” or “was alarmed” at denials of refugee work rights [emphasis
added]”: Mathew, Asylum and Employment, at 107–108.
53
Saul, ICESCR Commentary, at 317.

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 936 6 ri gh t s of r ef ug ees l awfu lly staying

argues that this approach infringes Art. 5(1) of the Economic Covenant which
disallows limitations “to a greater extent than is provided for in the present
Covenant”54 and may even amount to a reservation incompatible with the funda-
mental object and purpose of the Economic Covenant.55 She further contends that
whatever the salience of the implied sovereign authority point as a general
proposition,56 at least for refugees “in relation to whom it is clear that non-
refoulement applies on an indefinite, ongoing basis, the objective of immigration
control is largely irrelevant.”57 That is, even if it is conceded that states normally
have the sovereign authority to exclude non-citizens for such reasons as they elect
or in the alternative to set conditions on access (including the denial of work rights)
for those non-citizens that they allow to enter, refugees cannot sensibly be subject
to those general norms. This is because by virtue of having voluntarily and
explicitly agreed to allow refugees to enter at least provisionally in line with the
non-derogable duty of non-refoulement codified in Art. 33 of the Refugee
Convention,58 states have already chosen to attenuate their sovereign authority
over migration control. Mathew thus suggests that because sovereign authority can
no longer be invoked to justify limitation of refugee work rights, “refugees and
asylum-seekers who, by law, cannot be returned to their countries of origin must
be allowed to work.”59
This is a compelling argument. But even if this reading ultimately finds
acceptance it does not follow that an inclusive understanding of work rights in
Art. 6 of the Economic Covenant has eclipsed the admittedly more constrained
duties under the Refugee Convention.60
54
Economic Covenant, at Art. 5(1). 55 Mathew, Asylum and Employment, at 116.
56
Mathew concedes that “international human rights law is superimposed upon and inter-
related with the international state system and is in practice limited by border control . . .
Those states which ensure the right to work to ‘everyone’ obviously do not accept that
everyone can therefore enter in order to work in that state”: ibid. at 1, 58. Situations in
which there is no alternative means to access the necessities of life raise a distinct legal claim
under Art. 11 of the Covenant (see Chapter 4.4.1). This distinct duty has been relied on in
e.g. “Concluding Observations on the Fourth Periodic Report of Austria,” UN Doc. E/C.12/
AUT/CO/4, Dec. 13, 2013, at [13].
57
Mathew, Asylum and Employment, at 115–116. This view may be what animates Edwards’
position that “[w]hen it comes to whether asylum seekers and refugees benefit from the
rights conferred in Art. 6 . . . the real issue here is where one can enjoy that right and which
State is responsible for it”: Edwards, “Article 17,” at 959.
58
See Chapter 4.1.2 at note 222 ff.
59
Mathew, Asylum and Employment, at 60. “Refugees are non-citizens, but unlike most non-
citizens they cannot return and must not be returned to their country of origin. This is
a significant difference . . . which should unlock many rights for refugees on the basis that
the comparator group should be citizens or a category of resident foreigners similar to
citizens, namely permanent residents”: ibid. at 126.
60
“The work rights recognized under Article 17 . . . of the Refugee Convention . . . are . . .
obligations of immediate result and not subject to progressive realization, thus raising the
bar for implementation compared with the general position under the ICESCR. In this
respect, the Refugee Convention standards arguably operate as lex specialis in determining

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 6. 1 r igh t t o w ork 937

First, the Committee on Economic, Social and Cultural Rights has defined the
accessibility dimension of the right to work set by Art. 6 of the Covenant to focus
on the avoidance of “discrimination in access to and maintenance of
employment.”61 Even the core obligation “[t]o ensure the right of access to
employment, especially for disadvantaged and marginalized individuals and
groups”62 is framed in tandem with duties to avoid “any measure that results
in discrimination”63 and to adopt an affirmative action strategy for those who are
disadvantaged and marginalized.64 It is thus difficult to read Art. 6 as necessarily
requiring parity of refugee access to work with that enjoyed by citizens or any
other group.65 While it is clear that refugee and non-citizen status more generally
are impermissible grounds for discrimination in accessing work,66 so long as
differential access to work for refugees (or non-citizens generally) is found to be
“objective and reasonable” it is not discriminatory and hence does not fall afoul
of the Covenant.67 And as Saul notes, this raises once again the thorny question
of the presumed sovereign right of states to limit access to work by foreigners:
In relation to the right to work of non-citizens, general international law
provides an objective and reasonable basis for differentiating between citizens
and non-citizens, on the basis that it permits states to restrict labour market
access by foreigners (unless there are specific commitments allowing access).
In the alternative, labour restrictions on non-nationals may be justified by the
general limitations clause in Article 4 of the ICESCR, again on the basis of
a permissive international rule . . . [S]tates enjoy a sovereign discretion
whether to permit labour market access by foreigners, [and] such choices
may be regarded as “objective and reasonable” differentiations on the basis of
national origin or foreign citizenship status for various reasons.68

the right to work of refugees under Article 6 of the ICESCR, placing them in a more
advantageous position than other foreign nationals in certain circumstances. Refugees are
not entitled to the same rights as nationals, but nor are their rights as limited as those of
foreigners generally”: Saul, ICESCR Commentary, at 321.
61
UN Committee on Economic and Social Rights, “General Comment No. 18: The Right to
Work,” UN Doc. E/C.12/GC.18, Feb. 6, 2006, at [12(b)(i)].
62
Ibid. at [31(a)]. 63 Ibid. at [31(b)]. 64 Ibid. at [31(c)].
65
But see Edwards, “Article 17,” at 961, arguing that “[t]he right to work under Art. 6
ICESCR . . . [requires] treatment equal to that enjoyed by nationals (unless exceptions
could be read into the provisions).”
66
“The anti-discrimination focus of human rights law is not up to the task of defeating, as
opposed to softening, sovereignty”: Mathew, Asylum and Employment, at 60.
67
“Freedom from discrimination in work is subject to the usual test for permissible ‘reason-
able and objective,’ and proportionate, differential treatment under non-discrimination
law . . . In monitoring states, the [Committee] has seldom identified specific measures
which involve discrimination or unequal treatment and has instead tended to more
generally urge the state to prevent discrimination and to ensure equal treatment”: Saul,
ICESCR Commentary, at 290–291. See generally Chapter 1.5.5.
68
Saul, ICESCR Commentary, at 315–316. He further notes that “[n]either the drafting
history nor subsequent state practice suggests that the ICESCR modifies the general
position under international law”: ibid. at 316. In any event,“[i]n monitoring states, the

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 938 6 rights of r efugees l awfully staying

While as noted above69 there are good reasons to reject this view in relation to
refugees, it remains that the Committee on Economic, Social and Cultural
Rights has yet to say as much. This means that, at least for the time being, it
would be necessary to ground the fallback discrimination argument by refer-
ence to the question of proportionality – for example, that there is discrimin-
ation where denial of access to work is “unduly prolonged,”70 if it implicates
“los[s] [of refugee] self-esteem and struggle to participate in the longer term,”71
or cannot be justified by reference to the need to “promote the general welfare
of society.”72 These points are all arguable, of course; but none is remotely
watertight. Indeed, even as it took note of the requirements of the Economic
Covenant in striking down an absolute bar on the employment of refugee
claimants,73 the Supreme Court of Ireland opined that there might be “legit-
imate considerations justifying a distinction between citizens and non-citizens
who are asylum seekers and in particular permitting a policy of restriction on
employment,” including concerns regarding a possible “pull factor,” the
“limited basis” upon which the refugee claimant is present, and the need to
avoid any policy “which makes it more difficult to remove the unsuccessful
applicant from the State.”74 The Court concluded:
Even if some employment is permitted after some time, it does not follow
that any employment should be permitted: it may be legitimate to limit
that to defined areas of the economy, perhaps where there is
a demonstrated need.75

[Committee] has seldom identified specific measures which involve discrimination or

unequal treatment and has instead tended to more generally urge the state to prevent
discrimination and ensure equal treatment”: ibid. at 291.
69
See text at note 57.
70
Mathew, Asylum and Employment, at 117. The alternative “proportionality” argument
Mathew makes – “preventing asylum-seekers from working may be disproportionate
because, unlike other aliens, they cannot be sent elsewhere” (ibid. at 119) – is not really
a proportionality argument at all, but rather a reiteration of her earlier important point that
the inability lawfully to refuse provisional entry to refugees is in substance an attenuation of
any sovereign right to exclude non-citizens generally.
71
A. Bloch, Making it Work: Refugee Empowerment in the UK (2004), at 5.
72
A. Edwards, “Human Rights, Refugees, and the Right ‘to Enjoy’ Asylum,” (2005) 17(2)
International Journal of Refugee Law 293, at 327. This point may overlap with an argument
made by Mathew, namely that “economic evidence does not support the imposition of
restrictions on asylum-seekers’ rights to work as a protective measure for citizens, even
those citizens who are most vulnerable and thought to be in competition with refugees and
asylum-seekers”: Mathew, Asylum and Employment, at 119.
73
“[W]here there is no temporal limit on the asylum process, then the absolute prohibition
on seeking of employment . . . is contrary to the constitutional right to seek employment”:
NHV v. Minister for Justice and Equality, [2017] IESC 35 (Ir. SC, May 30, 2017), at [21].
74
Ibid. at [18].
75
Ibid. at [18]. It is moreover unclear how the restriction of refugee workers to particular
sectors or the imposition of a demonstrated need requirement might amount to
a proportionate response to the three specific concerns raised by the Court. As the South

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 6.1 right to work 939

Art. 17 of the Refugee Convention, in contrast, avoids this murky inquiry

altogether, since it does not merely prohibit discrimination but rather sets an
unambiguous standard that must be achieved – namely that refugees must be
granted work rights at least as good as those of the most-favored categories of
non-citizens,76 and must also be exempted from certain general limitations on
access imposed on other non-nationals.77
Second, under Art. 6 of the Economic Covenant “[t]he principal obligation of
States parties is to ensure the progressive realization of the exercise of the right to
work.”78 The Committee has focused on the duty of non-discrimination and the
obligation “to take steps”79 toward realization of the right by adoption and imple-
mentation of a strategy and plan of action as relevant duties of immediate result80 –
meaning that while access to work for refugees is something to be pursued in
a “deliberate, concrete and targeted” manner,81 the Covenant does not require that
it be achieved by any particular point in time.82 Under the Refugee Convention, on
the other hand, access to work must be granted as soon as lawful stay is achieved.83

African Supreme Court of Appeal put it, “differentiation between citizens and permanent
residents on the one hand, and all other foreigners on the other, [must have] a rational
foundation and serve[] a legitimate governmental purpose”: Somali Association of South
Africa v. Limpopo Department of Economic Development, Environment and Tourism, Dec.
No. 48/2014 (SA SCA, Sept. 26, 2014), at [24].
76 77
See text at notes 100 and 166 ff. See text at note 181.
78
UN Committee on Economic and Social Rights, “General Comment No. 18: The Right to
Work,” UN Doc. E/C.12/GC.18, Feb. 6, 2006, at [19].
79
The most straightforward implication of this duty is that it bars retrogression: ibid. at [21].
See Saul, ICESCR Commentary, at 363.
80
UN Committee on Economic and Social Rights, “General Comment No. 18: The Right to
Work,” UN Doc. E/C.12/GC.18, Feb. 6, 2006, at [19], [31], [33]. “[T]here is no obligation
on states to immediately guarantee full employment, [but] they must adopt a national
employment policy directed towards the progressive expansion over time of the quantity
and quality of employment opportunities . . . prioritizing the needs of the most vulnerable
or disadvantaged groups”: Saul, ICESCR Commentary, at 280. See Chapter 1.5.4 at note
409 ff. While not directly relevant here, Saul takes the view that the prohibition of forced
labor and of unjustified dismissal are also duties of immediate result: ibid.
81
UN Committee on Economic and Social Rights, “General Comment No. 18: The Right to
Work,” UN Doc. E/C.12/GC.18, Feb. 6, 2006, at [19]. “[E]ven in situations of severe
economic constraints, the [Committee] has conceded little to states”: Saul, ICESCR
Commentary, at 364.
82
At some extreme point, of course, it will be difficult for a state to make the case that it is truly
taking steps to achieve the right to work. As Edwards notes, “[p]rotracted refugee situations in
which refugees are housed in camps for extended periods without right to work or to engage
in self-employment activities, would [call into] question the fulfilment of Art. 6 ICESCR”:
Edwards, “Article 17,” at 960. Under Art. 17 of the Refugee Convention, in contrast, entitle-
ment to work would be achieved much earlier: the right to undertake employment as soon as
a refugee’s presence is ongoing in practical terms (see text at note 120) and the right to
undertake self-employment even earlier, namely as soon as the individual has satisfied any
requirements for assessment of status (see Chapter 5.3 at note 476).
83
See text at note 120.

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 940 6 r i g h t s of ref ugees lawfu lly staying

Third, as earlier noted,84 Art. 2(3) of the Economic Covenant allows developing
countries “with due regard to human rights and their national economy . . . [to]
determine to what extent they would guarantee . . . economic rights . . . to non-
nationals.”85 Scholars have at times sought to downplay the rather straightforward
language of this clause by appealing to historical context,86 reading-in
a requirement of “necessity, reasonableness and proportionality,”87 or invoking
broad-brush overarching principles such as the need to ensure “human dignity.”88
Relying on all of these arguments, for example, Mathew argues:
It is apparent . . . that where a non-national is either not returnable (because
of the presumptive application of the norm of non-refoulement) or his or her
stay on state territory is tolerated regardless of legal status, then developing
states should not be able to deny the right to work altogether. Asylum-
seekers should have access to the employment market, both in order to
survive and for other reasons connected with human dignity.89

84
See Chapter 1.5.4 at note 432 ff. 85 Economic Covenant, at Art. 2(3).
86
While conceding the “admittedly significant limitations of the [Economic] Covenant” and that
it is “not clear what Art. 2(3) means,” Mathew nonetheless provides a thoughtful argument that
vulnerable groups such as refugees ought not to be caught by the Art. 2(3) limitation because it
was conceived simply “to ameliorate the impact of colonialism upon independence,” specifically
to allow newly independent states to deny economic rights to “non-nationals who, as a result of
colonialism, control certain aspects of the economy in developing states”: Mathew, Asylum and
Employment, at 112–113. See also Edwards, “Article 17,” at 960 (“While ambiguously worded,
the purpose of Art. 2, para. 3 was to end the domination of certain economic groups of non-
nationals during colonial times. For this reason it ought to be interpreted narrowly in the
context of asylum seekers and refugees”); and E. Lester, “Work, the Right to Work, and Durable
Solutions: A Study on Sierra Leonean Refugees in The Gambia,” (2005) 17(2) International
Journal of Refugee Law 331, at 350. A contrary view is, however, taken in e.g. W. McKean,
Equality and Discrimination under International Law (1983), at 201.
87
Edwards, “Article 17,” at 960; adopted in Mathew, Asylum and Employment, at 111
(“Article 2(3) should, like any other limitations clause, be read subject to the requirements
of necessity, reasonableness and proportionality”); see also ibid. at 115. Edwards, however,
provides no support for her position. Mathew invokes the general rule in Art. 4 of the
Economic Covenant (ibid. at 114), a doubtful basis to override the more specific language
of Art. 2(3). But even if Art. 4 is applicable, Mathew ignores the fact that Art. 4 requires only
that the limitations be “determined by law,” “compatible with the nature of these rights,”
and “solely for the purpose of promoting the general welfare in a democratic society.” She
instead awkwardly seeks to leverage a Human Rights Committee interpretation of the word
“necessary” – a term not found in Art. 4 of the Economic Covenant – in order to justify her
insistence on “necessity, reasonableness and proportionality”: ibid. at 115, n. 57.
88
Edwards, “Article 17,” at 960. “Dignity” is, for example, a norm of regional European law
(see in particular Charter of Fundamental Rights of the European Union, Doc. 2000/C 364/
01, adopted Dec. 18, 2000, at Art. 1). But respect for the amorphous notion of “dignity” is
not a duty under the UN Covenants, which focus instead on ensuring specific entitlements
that are agreed to comprise the aspects of human dignity appropriate for protection at
international law.
89
Mathew, Asylum and Employment, at 111–112.

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 6. 1 r ight t o w ork 941

It is of course true that access to work may in practice be required if there is no

other means for an individual to secure access to the necessities of life90 – an
argument that is in practical terms especially compelling for refugees who, as
Mathew rightly observes, are not in a position to meet their survival needs by
departing the country. It is also correct that “dignity” claims have resonance in
some national legal systems,91 and that such arguments have proved especially
successful in advancing refugee work rights in South Africa.92 The difficulty,
however, is that neither of these points is the basis to contend for a general rule
that Art. 2(3) does not mean what it says.93 It is also surely telling that none of the
arguments advanced as constraints on Art. 2(3) has been embraced by the
Committee on Economic, Social and Cultural Rights.94 As such it remains the
case that with the vast majority of the world’s refugees living in the less developed
world, the Art. 2(3) prerogative could amount to a death knell for any global
commitment to ensuring the ability of refugees to access work. In contrast, as
Chetail notes, Art. 2(3) “cannot be used to avoid article[] 17 . . . of the Refugee
Convention governing access to employment.”95

90
See Chapter 4.4.
91
The notion of “dignity” was, for example, invoked in support of recognizing asylum-seeker
work rights by the UK Supreme Court in R (ZO, Somalia) v. Secretary of State for the Home
Department, [2010] UKSC 36 (UK SC, July 28, 2010), at [31].
92
“Dignity” as codified in South African constitutional law has been invoked to safeguard the
work rights of “applicants for asylum who have no reasonable means of support other than
through employment. A prohibition against employment in those circumstances is
a material invasion of human dignity”: Minister of Home Affairs v. Watchenuka, (2004) 1
All SA 21 (SA SCA, Nov. 28, 2003), at [33]. More generally, the Court observed that “[t]he
freedom to engage in productive work – even where that is not required in order to
survive – is indeed an important part of human dignity . . . for mankind is pre-eminently
a social species with an instinct for meaningful association. Self-esteem and the sense of
self-worth – the fulfilment of what it is to be human – is most often bound up with being
accepted as socially useful”: ibid. at [27].
93
An argument that might provide sufficient textual ambiguity to require greater reliance on
context, object and purpose for interpretive purposes is that the notion of “developing
countries” is anachronistic and hence an unwieldy basis upon which to deny economic
rights to non-nationals. For example, the World Bank model is that “[e]conomies are
currently divided into four income groupings: low, lower-middle, upper-middle, and
high”: World Bank, “Data,” datahelpdesk.worldbank.org/knowledgebase/articles/378834-
how-does-the-world-bank-classify-countries, accessed Mar. 1, 2020.
94
Nor is there much force to the rather creative argument that the flip side of Art. 2(3) is
logically a presumption that states of the developed world do have a duty to allow non-
citizens to work: even though some countries have entered reservations to guard against
such an interpretation, neither state practice nor the pattern of inquiry before supervisory
bodies is in line with such a construction. See Saul, ICESCR Commentary, at 316–317.
95
V. Chetail, “The Human Rights of Migrants in General International Law: From Minimum
Standards to Fundamental Rights,” (2013) 28(1) Georgetown Immigration Law Journal 225,
at 249–250. See also Edwards, “Article 17,” at 961: “[G]iven the distinct status that refugees
enjoy vis-à-vis other migrants . . . Art. 2, para. 3 should not be applied to ‘dilute’ rights to
which refugees are duly entitled.”

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 942 6 r ights of r efugees l awful l y s taying

To be clear, the point being made here is emphatically not that Art. 6 of the
Economic Covenant has no value to refugees. It might for example be deter-
mined that the US policy of requiring a refugee to accept “any available job” in
order to remain eligible for assistance payments96 breaches the Economic
Covenant’s prohibition of unlawful forced labor, assuming the assistance scheme
is critical to enabling the refugee to secure access to the necessities of life.97
Similarly, Chad’s denial to refugees of the right to undertake lawful work –
knowing that this forces many refugee women into offering “survival sex” in
order to make ends meet98 – is clearly at odds with the right of those refugee
women “freely [to] choose[] or accept[]” employment as sex workers – and is
likely also a form of inhuman or degrading treatment.99
It remains, though, that there are immense uncertainties about the ability truly
to rely on Art. 6 of the Economic Covenant to ensure that refugees receive the right
to work. The uncertainty arises not only from the foundational question of how to
reconcile Art. 6 to the right of states to limit non-citizen work rights as an incident
of the presumed sovereign authority to exclude non-citizens, but also from the fact
that Art. 6 focuses on non-discrimination rather than setting a clear obligation;
that the duty to provide access is in any event framed as requiring only progressive
implementation, rather than subject to a clear duty to deliver work rights at any
particular moment in time; and that Art. 2(3) could deny work rights altogether to
refugees and other non-citizens in countries of the less developed world where
most refugees live. For these reasons, Art. 17 of the Refugee Convention retains
real value. As Saul concludes, Art. 17 “rais[es] the bar for implementation com-
pared with the general position under the [Economic Covenant].”100
First, the right to work guaranteed by Art. 17 of the Refugee Convention does
not merely require non-discrimination, but affirmatively enfranchises refugees at
the same level of entitlement to work as the most-favored categories of non-citizens.
Second, it is not conceived as a duty of progressive implementation: once its
requirements are met, the obligation to allow refugees to work accrues immediately.
Third and most important, Art. 17 binds all state parties, whatever their level of
economic development. Only five countries of the less developed world –
Botswana, Burundi, Iran, Papua New Guinea, and Sierra Leone – maintain

96
See text at note 35.
97
This is because there is a binding duty under international law to provide particularly
vulnerable populations with at least the most basic necessities of life: see Chapter 4.4.1 at
note 1562 ff.
98 99
See text at note 12. See Chapter 4.3.2.
100
Saul, ICESCR Commentary, at 321. “The phrase ‘wage-earning employment’ is to be
interpreted in its widest sense to apply to every case in which a person is in paid
employment. Self-employment and the liberal professions are excluded”: Edwards,
“Article 17,” at 968. While this might seem narrower than the cognate term “work” in
Art. 6 of the Economic Covenant, the Committee on Economic, Social and Cultural Rights
“seems to confine the notion of work to paid work”: Saul, ICESCR Commentary, at 281.

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 6.1 right to work 943

reservations to Art. 17 of the Refugee Convention which are broad enough to allow
them to enforce a general policy of excluding refugees from wage-earning employ-
ment altogether.101 For all other less developed state parties, the possible right to
exclude refugees from work under Art. 2(3) of the Economic Covenant102 is
effectively trumped by Art. 17 of the Refugee Convention.
The strength of Art. 17 follows from the determination of the drafters of the
Refugee Convention to provide refugees with better than the lowest common
denominator of state practice, under which non-citizens are often excluded from
the labor market.103 The drafters clearly recognized, and intended, that Art. 17
would require states to grant refugees preferential access to work opportunities,
even though this had not been the case under earlier refugee treaties.104 As the
American delegate observed, “the mere fact that the provisions of a convention
required a change in the existing laws of any country was not a valid argument
against them. If all national laws were to remain unchanged, why should there be
a convention?”105
This is not to say that Art. 17 was conceived in naïveté. Then as now,
governments were keenly aware of the domestic political and other risks of
allowing refugees to compete with their own citizens for employment oppor-
tunities. The Austrian representative, for example, insisted that “[e]very state
had the duty of giving its own nationals priority consideration.”106 While it
might be reasonable to enfranchise refugees in the domestic labor market
during times of economic expansion,107 the same was not true when host

101
See reservations and declarations of state parties, available at https://treaties.un.org, accessed
Dec. 21, 2020. Indeed, one of these states – Papua New Guinea – withdrew its reservation to
Art. 17(1) in relation to refugees transferred to its territory by Australia (though not more
generally). Three other less developed countries – Malawi, Zambia, and Zimbabwe – have
entered reservations requiring only treatment at the same level as is afforded aliens generally
which, in the light of Art. 2(3) of the Economic Covenant, may be no access to work at all. In
each of these countries, however, the more specific duties under Art. 17(2) still apply, subject to
the reservation to that paragraph entered by all three countries requiring that refugees entitled
to the benefit of Art. 17(2) secure a work permit. Austria and Latvia maintain a blanket
reservation to Art. 17 of the Refugee Convention, but as developed countries are bound by the
duty progressively to implement the right to work under Art. 6 of the Economic Covenant. The
nature of that duty is described in Chapter 1.5.4 at note 405 ff.
102
See Chapter 1.5.4 at note 432 ff.
103
“[I]f the Committee merely granted to refugees the treatment granted to foreigners
generally, it would actually bring about no improvement in their lot”: Statement of
Mr. Henkin of the United States, UN Doc. E/AC.32/SR.13, Jan. 26, 1950, at 3.
104
“Article 17 is a more generous provision than those of the earlier [refugee] treaties”:
Edwards, “Article 17,” at 954.
105
Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.37, Aug. 16, 1950, at
15. See also Statement of Mr. Weis of the IRO, ibid. at 16.
106
Statement of Mr. Fritzer of Austria, UN Doc. A/CONF.2/SR.9, July 6, 1951, at 8.
107
“Refugees must be guaranteed normal living conditions, which implied freedom to engage
in work. The existing state of the labour market allowed the country to observe that

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 944 6 r i g h t s of ref ugees lawfu lly staying

countries were confronted with high domestic unemployment.108 As the

Italian government explained,
A country such as Italy, which was over-populated and therefore had
a great deal of unemployment, and whose frontiers and Adriatic coast
lay adjacent to areas which formed an inexhaustible source of refugees,
could definitely not consider assuming commitments regarding the
employment . . . of foreign refugees, which could only add to the difficul-
ties already confronting the Italian economy.109
The French and Belgian representatives worried that a generous approach to
the right of refugees to work “would be unfavourably received by the trade
unions concerned in the country of reception and that, in fact, might work
against the refugees.”110 Indeed, the observer from the American Federation of
Labor explicitly invoked the importance for workers of a “defense of their
rights against foreign competition.”111 His organization therefore pressed for
language that made refugee rights subject to “the laws and regulations for the
protection of the national labour market.”112
More generally, governments just recovering from the Second World War were
anxious not to jeopardize their plans for economic recovery by allowing the free
entry of refugees into the workforce. The situation of the United Kingdom was
typical of that faced by many European countries. While emphasizing that Britain
had previously authorized refugees to work and “that the favourable treatment
provided for them had caused no serious hardship for British workers,”113 Sir
Leslie Brass nonetheless explained the salience of changed circumstances:
[T]he war had altered the economic situation of the United Kingdom which
was currently facing serious difficulties resulting both from the material

principle. Nevertheless his country could not undertake to apply the provisions [of Art.
17(2)] for an indefinite period”: Statement of Mr. Schurch of Switzerland, ibid. at 6.
108
“It should not be forgotten that a large number of Swiss nationals were obliged to leave their
own country to find work”: Statement of Mr. Schurch of Switzerland, ibid. at 6. See also
Statement of Mr. Juvigny of France, UN Doc. E/AC.32/SR.37, Aug. 16, 1950, at 14: “France . . .
desired to be able to control the movement of labour, and the refusal to permit a refugee to take
employment in an overcrowded branch of activity in which there were already thousands of
French subjects unemployed did not amount to a denial of the right to work.”
109
Statement of Mr. Del Drago of Italy, UN Doc. A/CONF.2/SR.9, July 6, 1961, at 9. Earlier in
the drafting process, Italy had expressed its willingness to allow refugees to work “as soon
as unemployment has fallen back to the average figure recorded for a certain number of
pre-war years to be determined”: United Nations, “Compilation of the Comments of
Governments and Specialized Agencies on the Report of the Ad Hoc Committee on
Statelessness and Related Problems,” UN Doc. E/AC.32/L.40, Aug. 10, 1950 (United
Nations, “Compilation of Comments”), at 14.
110
Statement of Mr. Rain of France, UN Doc. E/AC.32/SR.13, Jan. 26, 1950, at 4. Mr. Cuvelier
of Belgium “shared the view of the representative of France”: ibid.
111
Statement of Mr. Stolz of the American Federation of Labor, ibid. at 12. 112 Ibid.
113
Statement of Sir Leslie Brass of the United Kingdom, ibid. at 5.

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 6.1 right to work 945

damages it had sustained and from the fact that its economy had been geared to
war production over a period of several years. To remedy the situation, the
United Kingdom, in agreement with the employers and trade union represen-
tatives concerned, and for the common good of the people, had had to adopt
a system of planned economy. The United Kingdom had had, for example, to
subject wage-earners who were its own nationals to certain restrictions.114
In other countries, recovery efforts had been pursued by strategies more
directly targeted at the regulation of non-citizen labor. French law, for
example, “authorized the fixing of a maximum percentage of aliens employable
in each branch of activity,”115 while Sweden “had been obliged for domestic
reasons to introduce a system of labour permits for all aliens which, at the
present juncture, it was unable to abandon.”116
Concerns such as these could very easily have resulted in either the failure to
guarantee refugees the right to work, or no more than a minimalist commitment at
the lowest common denominator. But the opposite occurred. To begin, the drafters
decided not to work from the draft article proposed by the Secretary-General,
under which a full right to work would ordinarily be denied during the refugee’s
first three years in the host state, and even then would be only a right to claim
exemption from the full “severity” of general limits on the employment of non-
citizens.117 Instead, they selected as their model the competing French proposal,118
which began with a much stronger, affirmative statement of entitlement. Once
a refugee was “regularly resident” in a state party, he or she would be entitled to
benefit from “the most favourable treatment given in the country in question to
nationals of a foreign country as regards the right to engage in wage-earning
employment.”119 The difference of approach is key: not only did the French
model provide that the right to work would accrue on the basis of a more flexible
(and usually earlier attained) level of attachment,120 but the right was conceived as
having affirmative content at a fairly high contingent level, namely the same right to
work as enjoyed by “most-favored foreigners.”121 Despite all of their concerns

114
Ibid. See also Statement of Mr. Larsen of Denmark, ibid. at 6–7.
115
Statement of Mr. Juvigny of France, UN Doc. E/AC.32/SR.37, Aug. 16, 1950, at 13.
116
Statement of Mr. Petren of Sweden, UN Doc. A/CONF.2/SR.9, July 6, 1951, at 6.
117
United Nations, “Memorandum by the Secretary-General to the Ad Hoc Committee on
Statelessness and Related Problems,” UN Doc. E/AC.32/2, Jan. 3, 1950 (Secretary-General,
“Memorandum”), at 34. This approach was based on that previously adopted in earlier refugee
conventions.
118
Reliance on the French draft was proposed by the Chairman of the Ad Hoc Committee,
Mr. Chance of Canada, UN Doc. E/AC.32/SR.13, Jan. 26, 1950, at 2.
119
France, “Proposal for a Draft Convention,” UN Doc. E/AC.32/L.3, Jan. 17, 1950 (France,
“Draft Convention”), at 6.
120
Under neither proposal, however, was there a suggestion that most refugees should be
allowed to work from the beginning of their time in a host country.
121
Under the Secretary-General’s standard, in contrast, refugees would only have been
entitled to relief from restrictions on the employment of non-citizens. This would not

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 946 6 r i g h t s of ref ugees lawfu lly staying

about domestic unemployment and the requirements of their planned economies,

the drafters did not depart from these two baseline principles in fleshing out the
content of Art. 17.
What accounts for this apparently courageous stand? Fundamentally, there
seems to have been a clear awareness among the drafters that there are few
rights more central to refugee self-sufficiency than the right to work. As the
American representative observed, “without the right to work all other rights
were meaningless. Without that right no refugee could ever become assimi-
lated in his country of residence.”122 It was therefore decided that it made more
sense to set the right to work at a meaningfully high level, recognizing that
states not yet in a position to enfranchise refugees within their domestic labor
market would feel compelled to enter a reservation to the treaty.123 As the
Chairman of the Ad Hoc Committee explained,
It had, of course, been realised that the inclusion of provisions which, without
representing ideals to strive for, were too generous for some Governments to
accept, would lead to their making reservations, but it had been thought that
such a course might in the long run have a good effect even on Governments
which felt themselves unable to accord the treatment prescribed in the
Convention upon signing it. Other such cases had arisen in the past where
refugees and those who had the interests of refugees at heart had addressed
appeals to Governments applying low standards, pointing to the higher
standards applied by other Governments, and so had gradually produced an
improvement in their policies.124
This strategy of setting a relatively high standard with awareness that some
reservations would initially be likely was affirmed by the President of the
Conference of Plenipotentiaries:

have entitled them to the special privileges often enjoyed by the citizens of most-favored
countries. The general meaning of this contingent standard is set out in detail at Chapter
3.3.1, and analyzed in relation to the right to work at note 160 ff.
122
Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.37, Aug. 16, 1950, at
12. This thinking is shared by Craven, who writes that “[n]ot only is [work] crucial to the
enjoyment of ‘survival rights’ such as food, clothing, or housing, [but] it affects the level of
satisfaction of many other human rights such as the rights to education, culture, and
health . . . [W]ork is an element integral to the maintenance of the dignity and self-respect
of the individual”: Craven, ICESCR Commentary, at 194.
123
In response to a suggestion by the Chairman of the Ad Hoc Committee that “the question
was whether article [17] should remain unchanged, thereby risking numerous reserva-
tions, or, with a view to obviating reservations, . . . an attempt should be made to restrict
the provisions concerning wage-earning employment to a minimum,” the Belgian repre-
sentative answered that he “was in favour of the first alternative”: Statements of the
Chairman, Mr. Larsen of Denmark, and of Mr. Herment of Belgium, UN Doc. E/AC.32/
SR.37, Aug. 16, 1950, at 17. See also Statement of Mr. Robinson of Israel, ibid. at 18.
124
Statement of the Chairman, Mr. Larsen of Denmark, ibid. at 11–12.

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 6 .1 r igh t to wor k 947

[T]he Conference . . . could aim either at perfection or at reaching the

lowest common denominator of agreement. If the latter course were
adopted, the government which insisted on the most restrictive condi-
tions would be in a position to dictate the final form that the provisions of
the draft Convention should take. If, on the other hand, the former
course was followed, many governments would probably be obliged to
enter reservations . . . Neither of these solutions seemed very desirable,
and he therefore appealed to representatives to seek the golden mean,
and, if possible, by precept and example, to encourage others to withdraw
their reservations at a later stage. If the Conference worked along those
lines, he believed it might be possible to arrive at a just and effective
instrument.125
With the benefit of hindsight, this strategy was extraordinarily wise.126
While Art. 17 has attracted many reservations, roughly 80 percent of state
parties have accepted Art. 17 without qualification of any kind,127 with most
reservations moreover fairly tightly conceived:128 only six states (Austria,
Botswana, Burundi, Iran, Latvia, and Sierra Leone) maintain what amounts
to a blanket reservation denying the applicability of the article as a whole.

125
Statement of the President, Mr. Larsen of Denmark, UN Doc. A/CONF.2/SR.9, July 6, 1951, at
14. In response, the British representative to the Conference of Plenipotentiaries withdrew an
amendment that would have constrained the scope of Art. 17, noting that “the aim of the
Conference should be to frame as liberal a text as could be achieved in the light of practical
possibilities”: Statement of Mr. Hoare of the United Kingdom, ibid. at 14–15.
126
“[I]t would be better to incorporate in the convention a clause providing for a real improvement
in refugees’ situation . . . even if that clause were to result in reservations, which, it might be
hoped, would be neither very numerous [n]or extensive”: Statement of Mr. Henkin of the
United States, UN Doc. E/AC.32/SR.13, Jan. 26, 1950, at 8. Weis has noted that “[a] number of
States made reservations to Article 17. They either withdrew them later, however, or put its
provisions into force in spite of the reservation. Thus, the provisions of Article 17 can today be
regarded as the general standard as regards the right of refugees to engage in wage-earning
employment”: P. Weis, The Refugee Convention, 1951: The Travaux Préparatoires Analysed
with a Commentary by Dr. Paul Weis (posthumously pub’d., 1995) (Weis, Travaux), at 149.
127
Specifically, only 33 of the 148 state parties maintain any reservation or qualification with
respect to Art. 17: see text of reservations and declarations of state parties available at
https://treaties.un.org, accessed Dec. 21, 2020. This fact bears out the intuition of the
drafters that a simple cost–benefit analysis would prove the value of setting a relatively
high standard. As the French delegate to the Ad Hoc Committee put it, “[i]f it was thought
that ‘x’ States would accede and that ‘x-2’ States would express reservations . . . it would be
preferable to modify [the article]. If, on the other hand, the majority of states would accept
article [17] . . . without any reservations, it would make sense to retain the article”:
Statement of Mr. Juvigny of France, UN Doc. E/AC.32/SR.37, Aug. 16, 1950, at 14.
128
This tendency to enter fairly specific reservations was predicted by the American repre-
sentative to the Ad Hoc Committee, who observed that “an article to which all or most
countries made reservations would be pointless. However, if only some countries, even
four or five, made reservations, those reservations would not all be equal in their nature
and scope”: Statement of Mr. Henkin of the United States, ibid. at 15.

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 948 6 r ights of r efugees l awfully staying

Equally important, nine countries which originally constrained their accept-

ance of Art. 17 – Australia, Brazil, Denmark, Greece, Italy, Liechtenstein,
Malta, Papua New Guinea, and Switzerland – have either withdrawn or
significantly narrowed the scope of their reservations,129 just as the drafters
hoped would occur. Because no new reservations can be made after a country
has ratified the Convention,130 the decision to adopt a realistically high stand-
ard has resulted in what amounts to the strongest guarantee at the universal
level of the right of any group of non-citizens to undertake employment.
The duty to grant refugees work rights may be violated directly – as in the case
of Cambodia’s decision to treat refugees simply as illegal immigrants not allowed
to work at all,131 New Zealand’s rule that only one person in a given refugee family
with temporary protected status may be issued a work visa,132 or the policy of
Bangladesh133 and Ecuador134 not to issue refugees with the documentation
needed to access legal employment. Art. 17 may also be breached indirectly, as
by the refusal to allow refugees to leave camps in order to work in India135 and
Sudan,136 or by the Egyptian137 and Zambian138 rules imposing a prohibitively
expensive fee to secure the registration needed lawfully to approach employers.
Nor does it make any substantive difference whether a denial of refugee work
rights is implemented by action against refugees themselves or against those who
would employ them139 – meaning that Iran’s policy of subjecting employers to

129
See reservations and declarations of state parties, https://treaties.un.org, accessed Dec. 21,
2020. On Aug. 20, 2013, Papua New Guinea withdrew its reservation to Art. 17 in relation
to refugees transferred to its territory by Australia – the overwhelming majority of its
refugee population. It nonetheless maintains the reservation more generally.
130
Refugee Convention, at Art. 42(1). This understanding was affirmed at the Conference of
Plenipotentiaries: Statement of the President, Mr. Larsen of Denmark, UN Doc. A/
CONF.2/SR.9, July 6, 1951, at 13.
131
See text at note 3. 132 See text at note 26. 133 See text at note 9.
134 135 136
See text at note 10. See text at note 6. See text at note 5.
137
See text at note 8.
138
See text at note 7. With regard to the duty of states to provide refugees with documentation of
their identity and status, see Chapter 4.9. Nor may the failure to provide refugees with
documentation be based on the refusal of refugees to comply with restrictions on internal
freedom of movement, since the latter are presumptively invalid: see Chapter 5.2. The
Committee on Economic, Social and Cultural Rights has taken view that states must provide
refugees with documentation that is recognized as entitling them to work: “Concluding
Observations on the Combined Second to Fourth Periodic Reports of the former Yugoslav
Republic of Macedonia,” UN Doc. C/C.12/MKD/CO/2–4, July 15, 2016, at [21]; “Concluding
Observations on the Sixth Periodic Report of Finland,” UN Doc. E/C.12/FIN/CO/6, Dec. 17,
2014, at [14]; and “Concluding Observations on the Combined Third and Fourth Periodic
Reports of Jamaica,” UN Doc. E/C.12/JAM/CO/3–4, June 10, 2013, at [10].
139
“The first category may relate to measures taken by the authorities directly against the
foreigner . . . The second group apparently deals with restrictions imposed on the employer:
he may be prohibited from hiring foreigners, who are generally permitted to do the work in
question, unless he can prove that no national is available for the position or he may be
permitted to accept only a certain number or percentage of alien employees or only such who

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 6 .1 righ t to wor k 949

heavy fines and imprisonment for hiring Afghan refugees140 and Turkey’s rule
that refugees cannot exceed more than 10 percent of a company’s workforce141 are
at odds with Art. 17. Nor was the nature of the right of refugees to work fully
appreciated when the Israeli Supreme Court determined that “the state’s interest
to prevent ‘employment immigration’ should be considered” and that the govern-
ment’s willingness to impose a moratorium on enforcement of sanctions against
those employing refugees struck “a proper balance.”142 To the contrary, the
impermissible chilling effect on work opportunities for refugees would clearly
persist, even if sanctions would not be immediate.143
In substantive terms, the essence of the obligation to allow refugees to work,
contained in the first paragraph of Art. 17, is “of a more categorical nature”144
than that found in any of the predecessor refugee conventions. While the
drafters did not elaborate the scope of “wage-earning employment,” Grahl-
Madsen concludes that taking account of both the plain meaning of the term
and the fact that self-employment and professional practice are the only types
of work addressed elsewhere in the Convention,145
there can be no doubt that [the term “wage-earning employment”] must
be understood in its broadest sense, so as to include all kinds of employ-
ment which cannot properly be described as self-employment, or [profes-
sional practice] . . . It . . . comprises employment as factory workers,
farmhands, office workers, salesmen, domestics and any other kind of
work the remuneration for which is in the form of a salary as opposed to

are not engaged elsewhere. In order to cover all the possibilities, the authors of the Convention
combined both cases of restrictions”: N. Robinson, Convention relating to the Status of Refugees:
Its History, Contents and Interpretation (1953) (Robinson, History), at 115.
140
See text at note 13. 141 See text at note 22.
142
Kav LaOved v. The Government, Dec. No. 6312/10 (Isr. HCJ, Jan. 16, 2011). Eritrean and
Sudanese refugees admitted to a “temporary protection regime” were lawfully staying in
Israel (see Chapter 3.1.4 at note 203) and hence entitled to engage in employment under
Art. 17. The “required balance” referenced by the Court is to be struck (in line with the
intention of the drafters) by the delay in acquisition of refugee employment rights until
lawful stay (or the three-year cutoff) is achieved. See generally Y. Livnat, “Israeli Supreme
Court Rules: Taxation and Employment Restrictions on Employers of ‘Foreign Workers’
Apply to Employers of Asylum Seekers too,” reflaw.org, Oct. 2017.
143
Indeed, it has been reported “that Interior Ministry officials have taken a number of steps
to deter employers from hiring permit holders, including telling employers inquiring
about whom they can hire that they may not hire any permit holders, visiting businesses
and telling employers not to employ permit holders, and telling municipalities not to hire
them”: Human Rights Watch, “‘Make Their Lives Miserable’: Israel’s Coercion of Eritrean
and Sudanese Asylum Seekers to Leave Israel” (2014), at 76, citing Kav LaOved.
144
Robinson, History, at 114.
145
See Chapter 5.3 regarding the right to engage in self-employment, and Chapter 6.2
regarding the right to engage in professional practice.

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 950 6 ri gh t s of r ef ugees l awfu lly staying

fees or profits. It seems reasonable to include waiters, salesmen and others

who are remunerated to a greater or smaller extent in the form of tips,
commissions or percentages; the crucial point is apparently whether they
may be said to have an employer and are not free agents.146
In view of the breadth of this definition, Lebanon’s refusal to let Syrian refugees
work in other than limited sectors147 is an example of a policy that is clearly in
breach of Art. 17.148
The right of refugees freely to seek wage-earning employment is not, of course,
tantamount to an entitlement of refugees to secure whatever employment they
prefer. As Craven explains in the context of Art. 6 of the Economic Covenant,
In theory, the concept of freely chosen employment extends to ensuring the
fullest opportunity for each worker to use his or her skills in a suitable job.
There is a possible tension here between absolute individual choice and the
limited options that might be open to him or her in the employment market. It
is not realistic to suggest, for example, that the State has to create work
opportunities that correspond entirely to the wishes of individuals seeking
work.149
As such, while policies such as those of Austria150 and Belgium151 that provide
refugees with training to facilitate their access to the job market, or the subsidies
paid to those who employ refugees by Denmark, Finland, and Sweden152 are
commendable,153 the fact that refugees face linguistic, cultural, or other barriers
to effective competition in the domestic labor market154 does not per se bespeak
a violation of the Refugee Convention.155 On the other hand, the right freely to

146
A. Grahl-Madsen, Commentary on the Refugee Convention 1951 (1963, pub’d. 1997)
(Grahl-Madsen, Commentary), at 70. See also Robinson, History, at 114; and Weis,
Travaux, at 147.
147
See text at note 17.
148
Concern has also been expressed by the Committee on Economic, Social and Cultural
Rights that mobility restrictions may interfere with the ability of refugees to work, contrary
to Art. 6 of the Covenant: “Concluding Observations on the Sixth Periodic Report of
Cyprus,” UN Doc. E/C.12/CYP/CO/6, Oct. 28, 2016, at [15]; “Concluding Observations
on the Combined Second and Third Periodic Reports of Tajikistan,” UN Doc. E/C.12/
TJK/CO/2–3, Mar. 25, 2015, at [15].
149
Craven, ICESCR Commentary, at 217–218. 150 See text at note 35. 151 Ibid.
152
See text at note 34.
153
It is, however, arguable that such initiatives may be required under Art. 6 of the Economic
Covenant given the duty “to take steps” toward realization of the right to work for all by
adoption and implementation of a strategy and plan of action, and to give particular
attention to the needs of disadvantaged groups, including refugees. See text at note 79.
154
See text at notes 31–32.
155
Refugees may in some cases, however, be entitled to invoke the duty of non-discrimination,
including in particular the responsibility of states to “guarantee to all persons equal and
effective protection against discrimination on any ground,” in order to contest such exclusions:
see Chapter 1.5.5. States also have a duty under Art. 6(2) of the Covenant progressively to take

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 6.1 ri g ht t o w o r k 951

seek employment does mean that refugees must not face especially cumbersome
procedures for accessing their work rights:
Article 17 of the Convention . . . is essentially a requirement to grant
refugees the unrestricted right to work . . . Yet . . . [US] withholding of
removal status requires the periodic refiling of work applications . . .
Because states parties are obliged to extend the most favorable treatment
to refugees . . . the imposition of a more cumbersome work permit pro-
gram for aliens in withholding of removal status who are seeking employ-
ment likely violates the spirit, if not the letter, of Article 17.156
Indeed, as noted by the Constitutional Court of South Africa in a case in which
refugees confronted an administratively opaque and rigid procedure to access
the right to work in the highly regulated security industry,157
the Authority must exercise a reasonable measure of flexibility. This will
avoid a blanket exclusion of refugee applicants without properly weighing
whether their employment is likely to frustrate the objects of the Security
Act. Should the Authority fail to do so, it would be acting in a manner
inconsistent with the power given to it.158
It follows that the Israeli system of requiring refugees to renew their work
permits each month even as it closed most of the immigration offices with
authority to process those renewals159 is not in compliance with Art. 17.
The contingent standard by which enjoyment of the right to work is to be
measured – namely “the most favourable treatment accorded to nationals of
a foreign country in the same circumstances” – amounts to a particularly import-
ant advance over earlier treaties. To be sure, not all states felt it was appropriate to
enfranchise refugees in the ranks of most-favored foreigners. Austria argued that
“[t]he number of persons to whom the most favoured nation clause applies is as
a rule relatively small. Since Austria has hundreds of thousands of refugees, their
automatic inclusion in a most favoured nation clause . . . would make it impossible
for Austria to conclude such agreements in the future.”160 On the other hand,
Yugoslavia would have gone beyond the most-favored foreigner standard, advo-
cating a national treatment contingent standard because “in most countries the
number of refugees was smaller than the number of unemployed . . . [U]nless the

affirmative steps within the bounds of their available resources to promote “full and productive
employment” of all persons under their jurisdiction.
156
Victor Garcia Garcia v. Attorney General, 856 F. 3d 27 (US CA1, May 3, 2017), per Stahl
J. dissenting.
157
See text at note 16.
158
Union of Refugee Women v. Director of the Private Security Industry Regulatory Authority,
Dec. No. CCT 39/06 (SA CC, Dec. 12, 2006), at [86].
159
See text at note 21. 160 United Nations, “Compilation of Comments,” at 43.

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 952 6 rights of r efugees l awfully staying

former were accorded the freedom to seek employment on equal terms with the
nationals of the country concerned, they would be unable to find work.”161
Each of these positions was rejected. While France congratulated the
Yugoslav delegation for its “generous display of liberalism,”162 there was nearly
universal consensus that it would be unrealistic to ask reception states to
assimilate refugees to their own citizens for purposes of access to employment
opportunities.163 Canada therefore “urged the Yugoslav representative not to
press his amendment; otherwise the Conference would probably find itself
involved in an endless discussion.”164 Even UNHCR argued against the more
generous Yugoslav approach, insisting that “certain delegations would then be
obliged to enter reservations to the entire article.”165
At the same time, however, there was surprisingly strong support for the
view that unless refugees benefitted from at least most-favored-national treat-
ment, Art. 17 would be of little practical value.166 In responding to a Belgian
query whether the most-favored-national standard might not be too generous,
the French representative was emphatic that no less could be granted to
refugees:
[I]t was legitimate and desirable to accord the most favourable treatment to
refugees as regards the right to engage in wage-earning employment, and not
only the treatment accorded to foreigners generally because refugees by their
very nature were denied the support of their Governments and could not hope
for governmental intervention in their favour in obtaining exceptions to the
general rule by means of conventions. France was therefore merely being
faithful to the spirit which had heretofore guided United Nations action in
favour of refugees: the purpose of that action was to obtain for refugees the

161
Statement of Mr. Makiedo of Yugoslavia, UN Doc. A/CONF.2/SR.9, July 6, 1951, at 15.
162
Statement of Mr. Rochefort of France, ibid. at 10.
163
For example, Norway “could not agree to put refugees on the same footing as its own
nationals in respect of wage-earning employment”: Statement of Mr. Anker of Norway,
ibid. at 13. The French reaction was more blunt, asserting that “[t]he Yugoslav amend-
ment jeopardized the very existence of [the right to asylum], and did not therefore reflect
a very realistic attitude”: Statement of Mr. Rochefort of France, ibid. at 10. Interestingly,
Germany – which today maintains perhaps the least generous policy in Europe on the
right of refugees to work – voiced the strongest support for the Yugoslav initiative, noting
that a clause “similar in purport to the Yugoslav amendment had been incorporated in the
legislation of the Federal Republic of Germany”: Statement of Mr. von Trutzschler of the
Federal Republic of Germany, ibid. at 4.
164
Statement of Mr. Chance of Canada, ibid. at 8.
165
Statement of Mr. van Heuven Goedhart of UNHCR, ibid. at 12. The Yugoslav amendment
was soundly defeated on a 16–1 (4 abstentions) vote: ibid. at 16.
166
“[I]f the Committee merely granted to refugees the treatment granted to foreigners
generally, it would actually bring about no improvement in their lot because it was
impossible to give them less than that general treatment”: Statement of Mr. Henkin of
the United States, UN Doc. E/AC.32/SR.13, Jan. 26, 1950, at 3.

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 6.1 r i g ht t o w o r k 953

advantages which Governments sought to have granted to their own

subjects.167
In the end, even those countries that were uncomfortable with the higher
contingent standard were persuaded to accept it, and to make whatever
reservation was deemed necessary to accommodate their particular national
circumstances. Belgium, for example, “considered the right to work as one of
the fundamental rights to be accorded to refugees and, despite the amount of
unemployment in Belgium, it accepted article [17].”168
The drafting history therefore leaves no room for doubt that the most-
favored-national standard is intended to secure for refugees the same right to
seek employment as is enjoyed by the nationals of states with which the host
country has a regional economic or customs union,169 or other special form of
association.170 As Grahl-Madsen concluded,
If a country concludes an international agreement, passes a law or institutes
a practice, whereby nationals of a certain foreign State are entitled to an
especially favourable treatment with regard to wage-earning employment,
refugees shall be entitled to the same treatment. It does not matter if there
are special ties between the two States, as long as they both are States in the
eyes of international law.171

167
Statement of Mr. Rain of France, ibid. at 2–3.
168
Statement of Mr. Herment of Belgium, UN Doc. E/AC.32/SR.37, Aug. 16, 1950, at 16. See also
Statement of Mr. Anker of Norway, UN Doc. A/CONF.2/SR.9, July 6, 1951, at 13, in which he
indicated “that Norway accepted the principle [of most-favored-national treatment] laid
down in article [17] of the draft Convention. It could do so all the more readily in that its
labour legislation granted refugees more favourable treatment than aliens in general.”
169
The South African Constitutional Court has, however, determined that Art. 17’s contin-
gent standard does not require the assimilation of refugees to those holding permanent
resident status: Union of Refugee Women v. Director of the Private Security Industry
Regulatory Authority, Dec. No. CCT 39/06 (SA CC, Dec. 12, 2006), at [65].
170
Consensus on this point is particularly clear from the fact that during the drafting process,
Belgium, Norway, and Sweden all expressed their intention to enter reservations to protect
their special regional arrangements from the language of Art. 17: Statements of Mr. Herment
of Belgium, UN Doc. E/AC.32/SR.37, Aug. 16, 1950, at 16 (“[H]e would, however, like to
express a reservation relating to countries members of a regional union”), and UN Doc. A/
CONF.2/SR.9, July 6, 1951, at 8 (“However, the Belgian delegation would have to enter
reservations in respect of paragraph 1 of that article in view of the economic and customs
agreements between Belgium and certain neighbouring countries”); Statement of Mr. Petren
of Sweden, ibid. at 6 (Sweden “could not undertake to extend to refugees the preferential
treatment granted to nationals of other Scandinavian countries under existing special treat-
ies”); and Statement of Mr. Anker of Norway, ibid. at 14 (“He desired to associate himself with
the statements made by the Swedish and Danish representatives on the regional policy of the
Scandinavian countries in respect of the labour market. Accordingly, he would be compelled
to enter reservations on article [17] when the Convention was signed”).
171
Grahl-Madsen, Commentary, at 70. See also Robinson, History, at 109–110: “Most favorable
treatment includes also rights granted under bilateral or multilateral conventions whether on
the basis of specific conventional provisions or on that of the ‘most favored nation’ clause. This

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 954 6 ri g h t s of r ef ugees lawfu lly staying

The import of the Art. 17 duty is clear from the fact that a significant number of
countries have entered reservations to avoid the duty to grant refugees the
same right to work as the citizens of partner states: in addition to six countries
which grant refugees only the same employment rights as aliens generally,172
a further sixteen have accepted the general standard but denied refugees work
benefits associated with particular customs, economic, or political unions.173
It follows, therefore, that all state parties that are members of the European
Union – excepting only Austria and Latvia (which have entered a blanket reserva-
tion to Art. 17), and Belgium, Luxembourg, and the Netherlands (which have
entered a relevant reservation)174 – must grant refugees lawfully staying in their
territory the same access to employment as is provided to citizens of other
European Union countries.175 This requirement does not impact the position of
refugees awaiting status verification (who are in most cases merely lawfully
present,176 not yet lawfully staying), meaning that Germany’s former policy that
preference in employment was to be given to nationals and others with residence
permits over refugee claimants177 was not in breach of the Convention. But Art. 17
does govern the entitlement of refugees present on an ongoing basis, including both
those recognized as refugees and those admitted to a temporary protection regime.
While this duty is respected by the provisions of the European Union’s
Qualification Directive with respect to recognized refugees,178 the rule in the

was made clear by the Belgian representative, who proclaimed that his country would have to
enter a reservation to [Art. 17] in view of the economic and customs agreements existing
between Belgium and certain neighboring countries”; and Weis, Travaux, at 129–130: “Most
favourable treatment means the best treatment which is accorded to nationals of another
country by treaty or usage. It also includes rights granted under bilateral or multilateral treaties
on the basis of special provisions or the ‘most favoured nation’ clause.”
172
The six countries are the Bahamas, Ireland, Malawi, Mexico, Zambia, and Zimbabwe: see
reservations and declarations of state parties, https://treaties.un.org, accessed Dec. 21,
2020. Because of this reservation, the legislation of Zimbabwe (see text at note 14), which
grants refugees only the same right to work as enjoyed by aliens generally, is not in
violation of the Convention.
173
These countries are Angola, Belgium, Brazil, Burundi, Cabo Verde, Denmark, Finland, Iran,
Luxembourg, Netherlands, Norway, Portugal, Spain, Sweden, Uganda, and Venezuela: see
reservations and declarations of state parties, https://treaties.un.org, accessed Dec. 21, 2020.
174
None of the reservations entered by other EU states to preserve privileges granted to
citizens of special partner states (Denmark, Finland, Norway, Portugal, Spain, and
Sweden) purports to deny to refugees the special privileges afforded the citizens of EU
states; all are rather of a more limited character: see reservations and declarations of state
parties, https://treaties.un.org, accessed Dec. 21, 2020.
175
The same position is adopted by Edwards, “Article 17,” at 966, who notes that in addition
to the duty of EU states to treat refugees on par with EU nationals, “similar arguments can
be made in relation to other regional treaties, such as ECOWAS.”
176
See Chapter 3.1.3 at note 129 ff. 177 See text at note 30.
178
EU Qualification Directive (2011), at Art. 26(1). Indeed, under the EU Reception Directive
(2013), at Art. 15(1), “Member States shall ensure that applicants have access to the labour
market no later than 9 months from the date when the application for international

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 6.1 r i g ht t o w o r k 955

EU’s Temporary Protection Directive allowing the right to work of refugees

admitted to a temporary protection regime to be subordinated to the claims of
European Union and European Economic Area citizens, as well as to those of
legally resident third-country nationals,179 is in breach of the Refugee Convention.
Once a refugee is lawfully staying, he or she must be treated on par with the citizens
of most-favored states, not ranked hierarchically after them – a duty recognized, for
example, by the work permit rules of the Australian temporary protection
system.180
Importantly, though, because the contingent standard for the right to work is
framed not simply as most-favored-national treatment, but rather as “the most
favourable treatment accorded to nationals of a foreign country in the same
circumstances [emphasis added],” refugees must generally qualify for the right to
work in the same way as do most-favored non-citizens, unless the general require-
ments are effectively insurmountable for refugees because of the uniqueness of
their circumstances.181 It was logically suggested, for example, that this language
means that a refugee may not legitimately refuse to comply with the terms of
a resettlement program182 under which the beneficiary (whether a refugee, or
simply an immigrant) agrees to undertake particular employment for a period of
years in the host country in return for preferential admission, transportation
assistance, or comparable immigration benefits.183 (The drafters did, however,

protection was lodged if a first instance decision by the competent authority has not been
taken and the delay cannot be attributed to the applicant.”
179
EU Temporary Protection Directive (2001), at Art. 12. 180 See text at note 25.
181
See generally Chapter 3.2.3.
182
“IRO had concluded agreements with certain countries of reception providing for a mass
influx of refugees into those countries under a special scheme for manpower recruitment.
Those agreements stipulated that after completion of their original contracts, refugees
would be entitled to the same conditions as nationals as regards the right to engage in
wage-earning employment”: Statement of Mr. Weis of the IRO, UN Doc. E/AC.32/SR.13,
Jan. 26, 1950, at 3–4.
183
At the Conference of Plenipotentiaries, the Australian representative expressed grave
concerns regarding his country’s ability to enforce the terms of labor restrictions under
resettlement agreements if Art. 17 were adopted. “He also had his doubts about the words
‘in the same circumstances’ in the third line of paragraph 1, and in that connexion, recalled
his earlier statement regarding Australia’s position as a country of immigration . . .
Australia’s aim was to assimilate the refugees within its territory, but its immigration
scheme provided for labour contracts for certain types of migrants . . . It had been asserted
by some representatives that the Australian delegation’s reservations would be covered by
the words ‘in the same circumstances,’ those words being taken to mean that refugees
should have the same treatment as other aliens in the same circumstances, in the sense that
the refugees would have to satisfy the requirements prescribed for nationals of foreign
States resident in Australia”: Statement of Mr. Shaw of Australia, UN Doc. A/CONF.2/
SR.9, July 6, 1951, at 11. Indeed, because a refugee who is admitted under an immigration-
style relocation scheme (often providing affirmative assistance to travel and becoming
reestablished) is in essentially the same position as an immigrant in receipt of the same
benefits, it is not unreasonable to treat the immigrant and the refugee comparably.

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 956 6 ri gh t s of r ef ug ees lawfu lly staying

incorporate language in Art. 17(3) which affirms their hope that at least
upon conclusion of the period of assigned work, refugees admitted under
immigration-based schemes would be assimilated to citizens for purposes
of access to the full range of employment opportunities.)184 More gener-
ally, the “in the same circumstances” language of Art. 17(1) easily accom-
modates the concerns of some states that refugees should obtain work
permits, or otherwise satisfy routine administrative requirements for the
employment of non-citizens.185 But it is otherwise where, as in the case of
Tanzania186 and Egypt,187 the exorbitant fee imposed to secure a work
permit amounts to a de facto bar on access to work by virtually all
refugees. The duty under Art. 6 to exempt refugees from insurmountable
requirements applies in such a case,188 meaning that refugees must receive
administrative dispensation sufficient to offset the disadvantages they face
in meeting the requirement to secure a work permit.189 For the same
reason, Portugal’s failure to devise alternatives for adult refugees to its
rules requiring non-citizens to provide certification of educational and

184
The representative of the International Refugee Organization expressed his desire to see “a
clause in the convention safeguarding [the] position in the future” of “refugees in special
categories which fell within the framework of plans for the recruiting of foreign manpower and
of immigration plans”: Statement of Mr. Weis of the IRO, UN Doc. E/AC.32/SR.13, Jan. 26,
1950, at 9–10. Specifically, he had sought to ensure that once the terms of the labor contract
were completed, refugees would automatically receive the same right to compete for jobs as
citizens: ibid. at 4. The French representative was among those who felt such a rigid prescription
“would go beyond the intentions of his Government”: Statement of Mr. Rain of France, ibid. at
4. Thus, the American delegate proposed a middle ground position under which states would
agree simply to give “favourable consideration” to the assimilation of refugees who had
honored the terms of their immigration contracts to nationals for purposes of work:
Statement of Mr. Henkin of the United States, ibid. at 5. Paragraph 3 of Art. 17 was drafted
by the US representative, and requires that “sympathetic consideration” be given to granting
national treatment to refugees, “in particular . . . those refugees who have entered their territory
pursuant to programmes of labour recruitment or under immigration schemes.”
185
In general international human rights law as well, “[i]t is readily accepted that foreign
workers may be required to obtain special authorizations (or permits) in order to be able
to work”: Craven, ICESCR Commentary, at 213. Interestingly, several states – Malawi,
Mexico, Mozambique, Sweden, Zambia, and Zimbabwe – nonetheless felt it necessary to
enter a reservation to Art. 17 of the Refugee Convention to safeguard their right to require
refugees to secure a work permit: see reservations and declarations of state parties, https://
treaties.un.org, accessed Dec. 21, 2020. Because these reservations do not indicate an
intention to deviate from the substantive requirements of Art. 17, they should be inter-
preted simply to require refugees to comply with the state’s administrative requirements.
That is, the reservations cannot be relied upon as a means of indirectly avoiding the
substantive obligations set by Art. 17, absent specific words to that effect.
186
See text at note 8.
187
See text at note 7. Zambia has, however, entered a reservation to duties under Art. 17.
188
See generally Chapter 3.2.3. See also Edwards, “Article 17,” at 966.
189
Zambia’s justification for its policy – namely, as a means of “pushing back” refugees – may also
be a basis for challenging the policy as an indirect tool of refoulement. See Chapter 4.1.2 .

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 6. 1 r igh t t o w ork 957

employment qualifications from their home country190 is at odds with this

contingent standard.191
The right to be assimilated to most-favored non-citizens as regards a broad-
ranging right to seek wage-earning employment is not, however, immediate.
Rather, it inheres only in refugees once they are “lawfully staying” in the host
country. At one point during the Convention’s drafting it had been agreed that
a lower level of attachment – simply being “lawfully in” a state party – ought to
suffice to have access to employment.192 But in keeping with the general decision to
translate rights defined in the French text to inhere in refugees “résidant
régulièrement”193 as requiring “lawful stay,”194 the text as finally adopted requires
a refugee to show de facto ongoing residence in a state (whether or not domicile or
a right of permanent residence has been acquired) before claiming Art. 17(1)
rights.195 Thus, the President of the Conference of Plenipotentiaries accurately
concluded that a refugee temporarily visiting a country “should not be accorded the
right to engage in wage-earning employment to any greater extent than other
aliens.”196
An important contemporary concern addressed by this level of attachment
is the perceived need to deter the filing of unfounded refugee claims in order
simply to gain access, albeit only provisionally, to employment opportunities
in the host country. As the English Court of Appeal has noted, “[p]art of the
purpose of immigration policy is to exclude economic migrants: the removal of
the restriction upon the right to work merely because someone has claimed
asylum would jeopardize that policy.”197 Because the right to undertake wage-
earning employment does not ordinarily inhere in persons who have simply
claimed refugee status, a failure immediately to authorize refugees to work

190
See text at note 31.
191
This practice also raises issues of compliance with the duties under Art. 25: see
Chapter 4.10.
192
“Report of the Ad Hoc Committee on Statelessness and Related Problems,” UN Doc. E/
1618, Feb. 17, 1950 (Ad Hoc Committee, “First Session Report”), at Annex I.
193
“[I]n the first paragraph of the French text, the expression ‘refugiés résidant habituelle-
ment’ should be replaced by the phrase already accepted: ‘refugiés résidant
régulièrement’”: Statement of Mr. Cuvelier of Belgium, UN Doc. E/AC.32/SR.13, Jan.
26, 1950, at 10.
194
See Chapter 3.1.4 at note 195. 195 Ibid. at note 197.
196
Statement of the President, Mr. Larsen of Denmark, UN Doc. A/CONF.2/SR.9, July 6,
1951, at 14.
197
Secretary of State for the Home Department v. Jammeh, [1999] Imm AR 1 (Eng. CA,
July 30, 1998). The same decision less accurately suggests the lawfulness of withholding the
right to work until “status has been established.” Art. 17 of the Refugee Convention
requires simply that a refugee be “lawfully staying” in the state party in order to acquire
the right to work. While a person recognized as a refugee clearly meets this standard,
a refugee may also be lawfully staying in some circumstances prior to formal recognition
of refugee status. See Chapter 3.1.4.

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 958 6 rights of r efugees l awfully staying

while undergoing refugee status verification (assuming those procedures are

not unduly prolonged)198 is not in breach of the Convention.199
There are, however, some circumstances in which even refugees not yet
lawfully staying in a state party may claim a right of exemption from a critical
subset of the limits imposed by many states on the employment of non-
citizens. Indeed, these specific exemptions may be of value to refugees lawfully
staying in a country where even most-favored nationals face real constraints on
access to wage-earning employment.200 Under Art. 17(2), refugees in any of
four situations described below – whether or not they are also “lawfully
staying” in the host state – must not be subjected to “restrictive measures . . .
for the protection of the national labour market.”
In general terms, the grounds for entitlement to invoke Art. 17(2) identify
“refugees who ha[ve] already established some ties with a country.”201 First and
most straightforward, the opening clause of Art. 17(2) makes clear that refugees
who already enjoyed exemption from labor restrictions in the host state before the
Convention entered into force continued to benefit from such exemption.202
Second and of greater contemporary relevance, any refugee who has been “resi-
dent” in a host state for three years,203 even if it cannot yet be said that he or she is
198
The Committee on Economic, Social and Cultural Rights seems to have set one year as the
presumptive maximum time that an asylum-seeker’s ability to work may be delayed:
“Concluding Obervations on the Combined Third to Fifth Periodic Reports of
Romania,” UN Doc. E/C.12/ROU/CO/3–5, Dec. 9, 2014, at [12]; “Concluding
Observations on the Combined Fourth and Fifth Reports of Bulgaria,” UN Doc. E/C.12/
BGR/CO/4–5, Dec. 11, 2012, at [9]; “Concluding Observations of the Committee on
Economic, Social and Cultural Rights: Slovakia,” UN Doc. E/C.12/SVK/CO/2, June 8,
2012, at [13].
199
If, however, these procedures do not result in a decision within three years, there is
nonetheless a duty under Art. 17(2)(a) to provide at least exemption from labor-market-
based restrictions on access to employment. See text at note 203. Under general human
rights law, there may be an implied duty to grant access to work at an earlier time unless
the necessities of life are otherwise provided to the refugee: see Chapter 4.4.
200
Arts. 17(1) and 17(2) are not, in other words, alternative provisions. A refugee who is
lawfully staying in a state party and therefore entitled to the benefit of Art. 17(1) may also
claim rights under Art. 17(2). Conversely, a refugee who has met one of the conditions for
relief from labor-market-based employment restrictions under Art. 17(2) also acquires
rights under Art. 17(1) at such time as he or she is lawfully staying in the country.
201
Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.37, Aug. 16, 1950,
at 12.
202
As Robinson explains, “the purpose of this provision is to bind the Contracting States to
continue applying . . . favourable treatment”: Robinson, History, at 115.
203
As originally framed, Art. 17(2)(a) required “at least” three years’ residence: France, “Draft
Convention,” at 6. The text was amended by France at the suggestion of the representative
of the IRO, who feared that “the expression ‘at least’ might lead to misunderstanding. It
might be understood to mean that what was involved was a period of undetermined
duration that was, however, in excess of three years”: Statement of Mr. Weis of the IRO,
UN Doc. E/AC.32/SR.13, Jan. 26, 1950, at 3. The French representative “saw no objection
to the deletion of the expression ‘at least,’ if its retention might lead to debate”: Statement

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 6.1 right to work 959

lawfully staying there, is entitled to exemption from labor-market-based restric-

tions. Because the term “residence” is used in the Convention to refer to de facto
ongoing presence rather than to legal notions such as the establishment of
domicile,204 time spent in the reception state since the lodging of an application
for refugee status verification should be understood to count toward satisfaction of
the three-year threshold.205 So conceived, Art. 17(2) provides an important safe-
guard for refugees: while it may offer less protection than the most-favored-
national treatment which refugees lawfully staying receive under Art. 17(1),206
Art. 17(2) rights at least accrue both automatically and at an earlier stage (even if
provisionally),207 thereby mitigating to some extent the hardship which can follow
when status assessment procedures are prolonged. The European Union’s
Qualification Directive allowing persons awaiting the results of a refugee status
determination procedure the right to work after having lived in the asylum state for
nine months208 reflects a commitment to the purpose advanced by Art. 17(2)(a),
and implements it at an earlier time than the Refugee Convention requires – albeit
regrettably with less than complete respect for the other rules of Art. 17(2).209

of Mr. Rain of France, ibid. On the basis of this exchange, it is clear that states have no
discretion to prolong the three-year delay set by Art. 17(2)(a).
204
“It seems that the term ‘residence’ must be interpreted as liberally as possible, so as to
include anyone who has been physically present in the country for a period of three years,
irrespective of whether his presence has been lawful or not. The period of residence will
not be interrupted by short periods spent in traveling or visiting other countries”: Grahl-
Madsen, Commentary, at 72. Weis takes a similarly broad approach, arguing that “[t]he
term ‘residence’ . . . is not qualified and might, therefore, include residence which may
have been illegal for a certain time but which was subsequently legalized; short absences
should not be taken into account”: Weis, Travaux, at 148. See Chapter 3.1.4 at note 196.
205
The same view is taken in Edwards, “Article 17,” at 969.
206
For example, “the consensus is that other restrictions – for national security, for example –
are permitted” under Art. 17(2): Mathew, Asylum and Employment, at 90. Had the drafters
intended that all constraints on the right to work be prohibited in the circumstances
described they would surely not have framed the duty as specifically requiring exemption
from restrictive measures imposed “for the protection of the national labour market.”
While the words of a treaty may not be read in isolation from context, object and purpose,
neither may they simply be read away. As noted by the Supreme Court of the United
Kingdom, “the starting point of the construction exercise should be the text of the
Convention itself . . . There is no want of good faith if the Convention is interpreted as
meaning what it says and the contracting states decline to do something that its language
does not require them to do”: R (ST, Eritrea) v. Secretary of State for the Home Department,
[2012] UKSC 12 (UK SC, Mar. 21, 2012), at [30]–[31]. See generally Chapter 2.1.
207
In contrast, lawful stay is most commonly associated with status recognition in countries
with a formal recognition process: see Chapter 3.1.4.
208
See text at notes 23–24.
209
There are, however, two concerns with the approach adopted by the European Union.
First, as described below, no provision is made for earlier access to the right to work
required by paras. (b) and (c) of Art. 17(2): see text at note 210 ff. Second, to the extent that
a given refugee is entitled to the benefit of any part of Art. 17(2), the European Union
standard unlawfully makes access by refugees subordinate to that afforded European

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 960 6 r i g h t s of ref ug ees lawfu lly staying

Significantly greater debate was elicited in regard to the third and fourth
exceptions, contained in paragraphs (b) and (c) of Art. 17(2).
Under Art. 17(2)(b), a refugee who is married to a citizen of the host country
is immediately entitled to relief from employment restrictions based on labor
market considerations. There was little support for the view that an immediate
exemption should be withheld unless the refugee automatically acquires the host
state’s nationality by marriage.210 To the contrary, the dominant view was that
the fact of marriage was itself a sufficient pragmatic basis for exemption, since it
clearly showed that the refugee had “some roots in the country, whatever might
be the basis of these roots under the nationality laws of that country.”211 The only
limitation, reflected in the explicit caveat to Art. 17(2)(b), is that abandonment of
the citizen spouse deprives a refugee of the benefit of this provision. An effort
was made to authorize the withdrawal of Art. 17(2)(b) benefits also for violation
of family obligations falling short of abandonment,212 but the complexity of
defining the relevant circumstances with precision appears to have led the
drafters to forsake that effort.213 Thus, the best view is that a refugee may rely
on Art. 17(2)(b) even if he or she does not in fact cohabit with his or her
spouse.214 Indeed, taking account of the recognition that the clause should not

citizens and long-term residents. The freedom from “restrictive measures imposed on
aliens” set by Art. 17(2) is framed in general terms, not simply as freedom from restrictive
measures imposed on “all but most favored” non-citizens.
210
This concern was raised by the Chinese representative, who objected to Art. 17(2)(b) on
the grounds that “China applied the jus sanguinis [principle] . . . under which the nation-
ality of the spouse was not changed by marriage. There was, therefore, no reason in law to
favour a refugee who married a person of Chinese nationality”: Statement of Mr. Cha of
China, UN Doc. E/AC.32/SR.13, Jan. 26, 1950, at 8.
211
Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.37, Aug. 16, 1950, at 13.
212
The Belgian representative to the Conference of Plenipotentiaries “said that it was known
that marriages were at times contracted solely with a view to securing certain advantages.
It would be paradoxical if a refugee was able to benefit from his marital status without
observing his marital obligations”: Statement of Mr. Herment of Belgium, UN Doc. A/
CONF.2/SR.9, July 6, 1951, at 17–18. The precise form of the Belgian amendment was
rephrased by the French representative to focus on either abandonment or failure “to
honour their family obligations”: Statement of Mr. Rochefort of France, ibid. at 18, and
adopted by the Conference on a 6–5 (9 abstentions) vote “subject to appropriate drafting
changes by the Style Committee”: ibid. As finally presented and adopted, however, the text
of Art. 17(2)(b) refers only to abandonment.
213
The remarks of the British representative make clear the difficulty of a complete definition
of the circumstances in which Art. 17(2)(b) benefits should be withdrawn. “The French
representative’s attempt to improve on the Belgian amendment raised difficulties of its
own. For example, a refugee might not abandon his wife, but he might treat her with such
cruelty that she was forced to leave him . . . It would be extremely difficult to allow for all
possible contingencies”: Statement of Mr. Hoare of the United Kingdom, ibid. at 17.
214
Belgium took the view that “a stipulation obviously had to be made that, in order to be
exempt from the application of the restrictions imposed on aliens, the refugee must reside
with the spouse . . . on whose account he or she enjoyed that exemption”: Statement of
Mr. Herment of Belgium, ibid. at 8. But he later withdrew this suggestion on the basis of

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 6. 1 r igh t t o w ork 961

be interpreted so as to deprive the citizen spouse of practical access to support

payments ordered by a court upon marital breakdown,215 it makes sense to
embrace Grahl-Madsen’s view that a refugee who is separated (but not yet
divorced) may also rely upon Art. 17(2)(b).216 As he suggests, a purposive under-
standing of the notion of abandonment should focus on “whether there is still
a community of interests between [the refugee and his or her spouse] e.g. that the
refugee supports the spouse.”217 More generally, “principles of non-discrimination
could narrow the interpretation given to this provision so as to avoid situations of
destitution, dependency, or women remaining in violent relationships.”218
Finally, Art. 17(2)(c) allows the parent of a child who is a citizen of the host
country also to claim exemption from labor-market-based employment restric-
tions. Opposition to this clause came primarily219 from the United Kingdom,
which initially opposed the rule on the grounds that it would result in “capricious
discrimination”220 in countries where nationality is acquired in accordance with
the principle of jus soli. Because a refugee’s child born on the territory of such
a state would automatically be a citizen, whereas a child born to the same parents
before arrival in the host state would not, clause (c) would “favour[] those who had
children born after their arrival.”221 Yet as the delegate from the United States (also

the French delegate’s comment that “[i]t might be physically impossible for the refugee to
reside with his wife, in which case the wording of the Belgian amendment, if adopted,
would be unfair to him”: Statement of Mr. Rochefort of France, ibid. at 16. Most obviously,
for example, the refugee might be able to secure employment only by living apart from his
or her spouse for some or much of the time; it would defeat the purpose of Art. 17(2)(b)
were the refugee to be prevented from supporting his or her family in such circumstances.
215
“Moreover, if the wife were able to obtain from the courts a maintenance order against her
husband, it would clearly be desirable that the husband should continue to enjoy rights in
relation to employment so as to be able to support her”: Statement of Mr. Hoare of the
United Kingdom, ibid. at 17.
216
“[A] refugee may invoke Article 17(2)(b) if he is married to a national of the country
concerned, also if they live apart, and even if they are factually or legally separated; but not
after a divorce, for in that case he (she) has no spouse any longer”: Grahl-Madsen,
Commentary, at 73.
217
Ibid. 218 Edwards, “Article 17,” at 970.
219
China also opposed the clause, though probably not for sound reasons. “With regard to
children, only those who were born of a Chinese mother or father became Chinese. It was
therefore unlikely that sub-paragraph (c) would be applied frequently in [China] and the
Chinese Government could not be expected to alter its legislation on nationality merely to
improve the situation of refugees. The Chinese delegation would therefore find it hard to
accept [clause (c)]”: Statement of Mr. Cha of China, UN Doc. E/AC.32/SR.13, Jan. 26, 1950, at
8. This intervention suggests that the Chinese representative really did not understand the
purport of Art. 17(2)(c) since, if the children of a refugee did not in fact acquire Chinese
citizenship under its laws, the refugee parent would receive no exemption from employment
restrictions.
220
Statement of Sir Leslie Brass of the United Kingdom, ibid. at 6. 221 Ibid.

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 962 6 r ights of r efugees l awfully staying

a jus soli state) countered, the preferred treatment was logical because the bond of
citizenship gave rise to a greater attachment between at least part of the refugee
family and the host country.222 This led the British representative to adopt
a somewhat different (and arguably more candid) tack. He expressed his worry
that refugees might exploit Art. 17(2)(c) by timing their arrival in the United
Kingdom to coincide with the birth of a child, thereby indirectly securing
immediate access to the labor market.223 The Danish chairman provocatively
“wondered whether that was the fault of the draft Convention or of jus soli,”224
and suggested that such concerns should logically be addressed by reservation225
(a position ultimately accepted by the United Kingdom). But the American
representative was adamant in defense of the principled logic of allowing the
refugee parent of a child citizen to avoid labor market restrictions: “The capri-
ciousness of the provision in question . . . was not as real as it might appear . . . [I]t
was clearly in the national interest that the mother of a citizen of the country
should have some means of sustenance.”226 The British effort to delete clause (c)
was thereupon defeated in the Ad Hoc Committee.227
Despite efforts by the United Kingdom again to press its concerns at the
Conference of Plenipotentiaries,228 clause (c) was maintained – meaning, for
example, that Japan’s failure to provide for the issuance of work authorizations
to refugee claimants with Japanese-born children229 is in breach of Art. 17(2).

222
Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.37, Aug. 16, 1950,
at 13.
223
“A case which had arisen recently would answer the question of the United States
representative. A woman who had come to the United Kingdom with a permit to engage
in one particular sort of employment had given birth to a child two days after arrival. If the
United Kingdom accepted article [17] with no reservations, such a woman would be free
of all the restrictions imposed by her work permit since her child would be a citizen of the
United Kingdom. That was why it was fair to say that in countries whose nationality laws
were based on jus soli the principle in paragraph 2(c) would operate very oddly”:
Statement of Sir Leslie Brass of the United Kingdom, ibid. at 15. He later continued that
“[i]t was hardly necessary to point out that to relieve a woman, who entered the country
and later gave birth to a child, of all restrictions with regard to employment might be an
inducement to such conduct”: ibid. at 17. Yet as the Belgian representative immediately
noted, it was doubtful that “the example quoted by the United Kingdom was well chosen.
The lady in question had a labour contract and, after the birth of her child, the authorities
might have insisted on the contract being respected”: Statement of Mr. Herment of
Belgium, ibid. at 16. This is clearly right: See text at note 182.
224
Statement of the Chairman, Mr. Larsen of Denmark, ibid. at 15. 225 Ibid. at 16.
226
Statement of Mr. Henkin of the United States, ibid. at 17. 227 Ibid. at 19.
228
“Although he recognized that the purpose of sub-paragraph 2(c) was to ensure that
a refugee with a family, who was firmly established in his country of refuge, should be
accorded his due rights, he could not accept the arbitrary conditions stipulated in that sub-
paragraph”: Statement of Mr. Hoare of the United Kingdom, UN Doc. A/CONF.2/SR.9,
July 6, 1951, at 5. The United Kingdom has, however, entered and maintained
a reservation to Art. 17(2)(c): https://treaties.un.org, accessed Dec. 21, 2020.
229
See text at note 20.

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 6.1 r ight to work 963

The scope of the provision was moreover clarified in response to a suggestion

from the President of the Conference that he assumed that Art. 17(2)(c)
“covered illegitimate as well as legitimate children, in view of the provisions
contained in Article 25(2) of the Universal Declaration of Human Rights.”230
While the Israeli representative believed that absent an amendment only the
parents of children born in wedlock would be covered by Art. 17(2)(c),231 the
majority of representatives appear to have been persuaded by the French
delegate’s assurance “that the existing text of the sub-paragraph was satisfac-
tory. It would be difficult to make it clearer.”232 This seems clearly to be correct,
since the ordinary meaning of “children” is not limited to the offspring of
a married couple.
Where a refugee meets the requirements of any of these exceptions – he or
she has been present in the asylum state for at least three years, or has a spouse
or children with the host state’s nationality – “restrictive measures imposed on
aliens or the employment of aliens for the protection of the national labour
market” are prohibited, whether or not the refugee in question is also lawfully
staying in the state party.233 The European Union’s Reception Directive, in
contrast, makes no provision for more immediate access to work by the
230
Statement of the President, Mr. Larsen of Denmark, UN Doc. A/CONF.2/SR.9, July 6,
1951, at 15. The relevant part of the Universal Declaration provides that “[a]ll children,
whether born in or out of wedlock, shall enjoy the same social protection”: Universal
Declaration of Human Rights, UNGA Res. 217A(III), Dec. 10, 1948 (Universal
Declaration), at Art. 25(2).
231
“[A]s sub-paragraph 2(c) opened with the word ‘He’ it could only apply to legitimate children.
He would suggest that if the intention was that the provision should be applicable to
illegitimate children as well, the words ‘or she’ should be inserted after the word ‘He’ in this
particular case”: Statement of Mr. Robinson of Israel, UN Doc. A/CONF.2/SR.9, July 6, 1951,
at 15. The implication seems to be that a man cannot have an “illegitimate” child. As a factual
matter, this is clearly not true. If, on the other hand, this position is taken because the father of
a child born out of wedlock has no parental rights, then the argument is anachronistic.
232
Statement of Mr. Rochefort of France, ibid.
233
As the French drafter acknowledged, Art. 17(2) meant that France could not lawfully subject
all refugees to its system of issuing restricted work authorizations based on labor market
conditions in particular fields. “If article [17] remained as it stood, France would be obliged to
enter a reservation to . . . part of paragraph 2 . . . [Its domestic law], enacted in 1932 in view of
the economic situation, and in 1946 in order to regulate the labour market, did not have the
effect of denying refugees the right to work . . . All [France] desired was to be able to control
the movement of labour, and the refusal to permit a refugee to take employment in any
overcrowded branch of activity in which there were already thousands of French subjects
unemployed”: Statement of Mr. Juvigny of France, UN Doc. E/AC.32/SR.37, Aug. 16, 1950, at
13–14. France did enter such a reservation, which it maintains: see reservations and declar-
ations of state parties, https://treaties.un.org, accessed Dec. 21, 2020. Interestingly, though
Venezuela suggested that it had a comparable system in place (Statement of Mr. Perez Perozo
of Venezuela, UN Doc. E/AC.32/SR.37, Aug. 16, 1950, at 19), it did not enter a reservation to
protect its domestic regime. Grahl-Madsen argues for an implied restriction on access to Art.
17(2)(c) exemption in the case of “a father, who has never made any attempt to support his
illegitimate child, and [who may] never [have] shown any interest in it”: Grahl-Madsen,

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 964 6 r i g h t s of ref ugees lawfu lly staying

spouses and parents of host-country minor citizens, subjecting them to the

usual delay of up to nine months, as well as subordinating their entitlement to
work to that of European citizens and resident third-country nationals.234
On the other hand, as was the case for Art. 17(1), Art. 17(2) provides no
relief against the duty to respect the terms of resettlement agreements;235 much
less does it excuse refugees from compliance with restrictive measures that
bind most-favored non-citizens or nationals.236 More generally, there is no
exemption from measures which have a purpose other than the protection of
national workers.237 As the French representative insisted, “the measures in
question were the result of laws and regulations for the protection of the labour
market. It was therefore only a question of restrictive measures to protect
national labour against foreign competition. There could be no possible doubts
on that point.”238 Grahl-Madsen concurs, observing that Art. 17(2) “only deals

Commentary, at 73. But Grahl-Madsen’s conclusion fails to take account of the fact that para.
(c), unlike para. (b), does not provide for the withdrawal of entitlement consequent to
abandonment. While it would clearly be undesirable in policy terms for a father who provides
no support to his citizen child to rely upon his status as father to secure exemption from
employment restrictions, it is nonetheless difficult to find a textual basis for the approach
suggested by Grahl-Madsen. Moreover, in view of the legal duty in most countries for the
father of a child born out of wedlock to provide support for his child, application of Grahl-
Madsen’s interpretation might also defeat the ability of the child’s mother to secure access to
the funds she requires in order to support the child.
234
EU Reception Directive (2013), at Art. 15.
235
“[T]he restrictions referred to in the second paragraph were certainly not those stipulated in
agreements between certain countries and IRO. They were restrictions deriving from the
domestic law of various countries”: Statement of Mr. Rain of France, UN Doc. E/AC.32/SR.13,
Jan. 26, 1950, at 9. See also Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/
SR.37, Aug. 16, 1950, at 13; Statement of Mr. Herment of Belgium, ibid. at 16; and Weis,
Travaux, at 148: “The preoccupation of Australia about refugees who had been admitted with
a work contract obliging them to perform specific work for two years was not well-founded.”
236
In response to concerns expressed by the United Kingdom regarding its right to apply
measures imposed on its own citizens “in agreement with the employers and trade union
organizations concerned . . . for the common good of the people” (Statement of Sir Leslie
Brass of the United Kingdom, UN Doc. E/AC.32/SR.13, Jan. 26, 1950, at 5), the represen-
tative of the IRO was unambiguous. “[T]he French text was, in fact, identical with that of
the Convention of 1933 which was designed to ensure equal treatment for refugees and
nationals. At that time, no restrictive measures had been applied against refugees in the
matter of employment. The situation had since changed and it was obvious that the text to
be adopted should indicate that restrictive measures which were applicable in the case of
nationals, applied equally to refugees”: Statement of Mr. Weis of the IRO, ibid. at 11.
237
This is not to say that restrictions on the right to work for any other reason are valid. The
policy of Côte d’Ivoire of taking away a refugee’s right to work if he or she moves without
authorization is, for example, not valid because it is predicated on enforcement of an
illegal constraint on internal freedom of movement: see Chapter 5.2.
238
Statement of Mr. Rain of France, UN Doc. E/AC.32/SR.13, Jan. 26, 1950, at 11. See also
Statements of Mr. Cuvelier of Belgium, Mr. Stolz of the American Federation of Labor, and
Mr. Metall of the International Labor Organization: ibid. at 11–12. Indeed, the British
representative proposed a more direct formulation of the purpose of Art. 17(2), namely to

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 6.1 r ight to work 965

with measures for the protection of the national labour market. Measures
which have another purpose, e.g. prohibition of employment of aliens in
industries working for the national defence, based on considerations of
national security, are not affected.”239
The last paragraph of Art. 17 – Art. 17(3) – requires the governments of state
parties to “give sympathetic consideration to assimilating the rights of all
refugees with regard to wage-earning employment to those of nationals
[emphasis added].” It mandates a process of “sympathetic consideration” – in
other words, a duty to consider the issue in good faith240 – which may, or may
not, ultimately provide refugees with a full-fledged right to work.241 While the
primary goal of Art. 17(3) as initially conceived was to provide some relief to
refugees admitted under immigration schemes or labor contracts once the terms
of their initial agreements are satisfied,242 its scope is not narrowly conceived. In
light of the debates on Art. 17 taken as a whole, the third paragraph seems very
much to be a principled recognition of the centrality of employment to the
ability of refugees to reestablish their lives,243 which states regrettably felt unable
fully to permit in the context of their own difficult domestic circumstances.

ensure the “protection of national workers”: Statement of Sir Leslie Brass of the United
Kingdom, ibid. at 12.
239
Grahl-Madsen, Commentary, at 71. See also Edwards, “Article 17,” at 968, noting that
“[r]estrictions that are not related to the protection of the national labour force, such as
those reserving civil service positions for nationals on national security grounds, are not
affected by this provision”; and Saul, ICESCR Commentary, at 288.
240
The existence of a duty of good faith consideration is perhaps even more clear in the
equally authoritative French-language text (“Les Etats Contractants envisageront avec
bienveillance”). By way of analogy, the phrase “sympathetic consideration” governing
the entry and sojourn of non-citizens in the investment treaty context is understood to
require contracting states to “give favorable consideration to requests for entry” by the
subjects of the treaties: J. Salacuse, The Law of Investment Treaties (2015), at 426.
241
Significantly, para. 3 does not take the approach initially advocated in the Secretary-
General’s draft, under which state parties simply “reserve[d] the right to accord the
treatment given to national wage-earners to specified categories of refugees”: Secretary-
General, “Memorandum,” at 34. Rather, as proposed by the American representative, it
requires states to give favorable consideration to the assimilation of refugees to citizens for
purposes of work, instead of just allowing them to do so: Statement of Mr. Henkin of the
United States, UN Doc. E/AC.32/SR.13, Jan. 26, 1950, at 5.
242
See text at note 182. Edwards sensibly suggests that “[t]oday, this provision ought to
include refugees who are resettled under general refugee resettlement criteria as well as
those admitted under non-refugee-specific criteria, such as humanitarian or other cri-
teria”: Edwards, “Article 17,” at 971.
243
See e.g. UNHCR Executive Committee Conclusion No. 104, “General Conclusion on
Local Integration” (2005), at [(m)(ii)], calling on “all States hosting refugees to consider
ways in which refugee employment and active participation in the economic life of the
host country can be facilitated . . . with a view to identifying and removing, to the extent
possible, existing obstacles to refugee employment; and, in this regard, affirms the
relevance of the 1951 Convention in providing a framework for the creation of conditions
conducive to the self-reliance of refugees.”

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 966 6 r i g h t s of ref ugees lawfu lly staying

As its terms make clear, however, Art. 17(3) does not impose a duty of
result.244 There is in particular no basis for treating the restrictions set by Art.
17 for access to employment (including satisfaction of the requisite level of
attachment and definition of access owed at a contingent standard) as “justi-
fied, on an exceptional basis only, according to severe financial or economic
conditions equivalent to the post-Second World War environment as an
implied term of Art. 17.”245 To the contrary, the duty under Art. 17 remains
very much as codified and fairly interpreted by reference to accepted principles
of treaty interpretation.246 Art. 17(3) nonetheless stands as a principled recog-
nition that the constrained approach taken by the drafters to definition of the
right of refugees to work was never promoted on grounds of lack of need or
merit, but simply on the grounds that state parties could not do better by
refugees without sacrificing their own critical national interests. When and if
conditions allow, Art. 17(3) signals the commitment in principle of govern-
ments to allowing refugees both earlier and more complete access to the full
range of wage-earning opportunities.

6.1.2 Fair Working Conditions

Refugee Convention, Art. 24 Labour Legislation and Social
Security
1. The Contracting States shall accord to refugees lawfully
staying in their territory the same treatment as is
accorded to nationals in respect of the following matters:

244
Indeed, it was opposed by the Netherlands for precisely this reason. The Dutch represen-
tative to the Conference of Plenipotentiaries “considered that the provisions of paragraph
3 of article [17] constituted a recommendation to, rather than an obligation on,
Contracting States. It was undesirable to make recommendations in a convention. It
would therefore be desirable to relegate voeux [aspirations] and recommendations appear-
ing in the draft Convention as it then stood to a separate draft resolution, which the
Conference could adopt later when the instrument itself was signed”: Statement of Baron
van Boetzelaer of the Netherlands, UN Doc. A/CONF.2/SR.9, July 6, 1951, at 15.
245
Edwards, “Article 17,” at 967.
246
In contrast, Edwards effectively deems the modern context of the Refugee Convention to
trump its clear terms, concluding that “applying the 1951 Convention to its modern day
circumstances, outside the context of exceptional economic hardship or particular situ-
ations that necessitate strict distinctions between nationals and non-nationals, it is argu-
able that the obligations of the 1951 Convention extend beyond a strict literal (and
therefore historical) reading of the text [emphasis added]”: ibid. For reasons analyzed in
detail in Chapter 2, this approach is not consistent with the rules of treaty interpretation.
Edwards is on more solid ground when she suggests that “where a contracting State is
a party to relevant human rights treaties, it is obliged to provide to refugees the enjoyment
of those rights on most favourable terms” (ibid.), though the duty is simply to honor those
rights in relation to refugees as to all others within the beneficiary class. Such additional
obligations do not, of course, impact the nature of the Refugee Convention obligation.

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 6 .1 righ t to wor k 967

(a) In so far as such matters are governed by laws or regulations or

are subject to the control of administrative authorities: remu-
neration, including family allowances where these form part
of remuneration, hours of work, overtime arrangements, holi-
days with pay, restrictions on home work, minimum age of
employment, apprenticeship and training, women’s work and
the work of young persons, and the enjoyment of the benefits
of collective bargaining.
...

Economic, Social and Cultural Covenant, Art. 7

The States Parties to the present Covenant recognize the right of
everyone to the enjoyment of just and favourable conditions of
work, which ensure, in particular:
(a) remuneration which provides all workers, as a minimum, with:
(i) fair wages and equal remuneration for work of equal value
without distinction of any kind, in particular women
being guaranteed conditions of work not inferior to
those enjoyed by men, with equal pay for equal work;
(ii) a decent living for themselves and their families in
accordance with the provisions of the present Covenant;
(b) safe and healthy working conditions;
(c) equal opportunity for everyone to be promoted in his employ-
ment to an appropriate higher level, subject to no consider-
ations other than those of seniority and competence;
(d) rest, leisure and reasonable limitation of working hours and
periodic holidays with pay, as well as remuneration for public
holidays.
The right of refugees to enjoy fair working conditions is a novel feature of the
1951 Refugee Convention. It was not guaranteed in any of the predecessor refugee
treaties, nor was it proposed in the French government’s draft of the 1951
Convention. The decision of the Secretary-General to promote such a right was
likely inspired by the contemporaneously drafted Arts. 23 and 24 of the Universal
Declaration of Human Rights247 which, in turn, were based upon the detailed work
of the International Labor Organization.248 In presenting his proposal for what
247
Art. 23 of the Universal Declaration refers inter alia to “just and favourable conditions of
work,” to “equal pay for equal work” without discrimination, to “just and favourable
remuneration ensuring for [the worker] and his family an existence worthy of human
dignity,” and to the right “to form and to join trade unions.” This is complemented by Art.
24 which posits “the right to rest and leisure, including reasonable limitation of working
hours and periodic holidays with pay.”
248
“The rights mentioned in article 24 are among the original concerns of the labour
movement and among the early standards established by international labour law”:

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 968 6 r ights of r efugees lawfully staying

became Art. 24 of the Refugee Convention, the Secretary-General insisted that it

was justified not only as a matter of principle,249 but also for pragmatic reasons:
The placing of foreigners and national workers on the same footing not
only met the demands of equity but was in the interests of national wage-
earners who might have been afraid that foreign labour, being cheaper
than their own, would have been preferred.250
In line with this thinking, it was proposed that refugees – at least once they are
“lawfully staying” in the host country251 – should be entitled to insist upon
guarantees of fair working conditions not simply on par with those extended to
aliens generally or even to most-favored foreigners, but rather at a level of
equivalency with the protections enjoyed by citizens of the asylum state itself.

G. Melander, “Article 24,” in A. Eide et al. eds., The Universal Declaration of Human
Rights: A Commentary 379 (1992) (Melander, “Article 24”), at 379. See generally
K. Källström, “Article 23,” in ibid. at 373.
249
Craven neatly captures the ethical dimension, arguing that “[i]f, on the one hand, work is
seen as a necessary evil, then humanity requires that the conditions under which it is
undertaken are as tolerable as possible”: Craven, ICESCR Commentary, at 226. The
Committee on Economic, Social and Cultural Rights has more recently noted that
“[b]ecause of their often precarious status, refugee workers remain vulnerable to exploit-
ation, discrimination and abuse in the workplace, may be less well paid than nationals, and
have longer working hours and more dangerous working conditions”: UN Committee on
Economic, Social and Cultural Rights, “General Comment No. 23: Right to Just and
Favourable Conditions of Work,” UN Doc. E/C.12/GC/23, Apr. 27, 2016, at [47(i)].
250
Secretary-General, “Memorandum,” at 37. The Ad Hoc Committee specifically referenced
these considerations as underpinning para. 1(a): Ad Hoc Committee, “First Session
Report,” at Annex II.
251
This level of attachment was implied in the original draft prepared by the Secretary-
General, which made Art. 24 “subject to the provisions of Article [17, on wage-earning
employment]”: Secretary-General, “Memorandum,” at 37. The Ad Hoc Committee,
however, proposed a more relaxed standard based on the approach of the cognate
provision of the ILO’s Migration for Employment Convention of 1949, which granted
labor protections to migrants “lawfully within [the state party’s] territory.” It therefore
agreed that Art. 24 rights be granted to refugees “lawfully in their territory”: Ad Hoc
Committee, “First Session Report,” at Annex I. Without engaging in any plenary debate on
the issue, the Conference of Plenipotentiaries reverted to the present, more restrictive
formulation. The timing of entitlement to access wage-earning employment and to the
protection and labor standards is in principle the same, namely when the refugee is
lawfully staying in the state party. But it is arguable that in the event access to employment
is granted at an earlier time than required by the Convention, the state party may still
refuse to grant refugees the benefit of Art. 24(1)(a) until lawful stay is established. If it were
to do so, it would of course create precisely the competitive advantage for refugee workers
over nationals which the drafters sought to avoid. In addition, refugees working in such
circumstances would still be entitled to assert the right to basic labor protections under
Art. 7 of the Economic Covenant: see text at note 253 ff. An argument could also be made
that the refusal to refugees authorized to work of the protection of labor laws would breach
the general duty of non-discrimination set by Art. 26 of the Civil and Political Covenant,
since it would be difficult to justify as a reasonable exclusion: see Chapter 1.5.5.

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 6 .1 righ t to wo rk 969

Art. 7 of the Covenant on Economic, Social and Cultural Rights takes

a somewhat different tack to the definition of workers’ rights. It goes beyond
the Refugee Convention by stipulating that relevant rights inhere in “every-
one” – a phrase understood by the supervisory Committee on Economic, Social
and Cultural Rights to embrace refugees,252 including “asylum-seekers”253 –
thus making clear that its protections inhere long before the “lawful stay”
requirement of the Refugee Convention’s Art. 24 is met.254 The Covenant also
goes beyond Art. 24’s closed list of worker protections, explicitly providing for
an open-ended approach that can readily evolve to regulate new forms of
worker protection over time.255
Yet even as Art. 7 of the Covenant helpfully expands the protective scope of
Art. 24 of the Refugee Convention in some ways, it offers less in other respects.
First, a number of forms of protection that would have to be read into the
general language of the Covenant are explicitly required by the Refugee
Convention, thus helpfully foreclosing debate on whether they must be guar-
anteed or not.256 Second, the Refugee Convention imposes a duty of result, not
just an obligation of progressive implementation as under the Covenant.
Third, Art. 24 sets an unequivocal and high required standard of treatment,
that being the same as nationals receive – in contrast to the looser duty only to
ensure rights without discrimination under the Covenant. And fourth, the
absolute duty set by the Refugee Convention avoids the debate about whether
at least some aspects of working condition guarantees – in particular, the
regulation of wages and the duty to provides workers with paid holidays –
are “economic” rights that less developed countries might lawfully choose to
deny to non-citizens under the Art. 2(3) exception provided for in the
Covenant. It is thus clear that refugee workers are better protected by the

252
UN Committee on Economic, Social and Cultural Rights, “General Comment No. 23:
Right to Just and Favourable Conditions of Work,” UN Doc. E/C.12/GC/23, Apr. 27, 2016,
at [4], [47(1)].
253
See e.g. “Concluding Observations on the Third Periodic Report of Japan,” UN Doc. E/
C.12/JPN/CO/3, June 10, 2013, at [21].
254
The Inter-American Court of Human Rights determined that while states may deny non-
citizens the right to work, once an employment relationship is initiated non-citizen
workers are equally entitled to all workplace rights: Juridical Condition and Rights of
Undocumented Workers (Advisory Opinion OC-18/03) (IACtHR, Sept. 17, 2003).
255
“Article 7 identifies a non-exhaustive list of fundamental elements to guarantee just and
favourable conditions of work. The reference to the term ‘in particular’ indicates that other
elements, not explicitly referred to, are also relevant. In this context, the Committee has
systematically underlined factors such as the following: prohibition of forced labour and social
and economic exploitation of children and young persons; freedom from violence and
harassment, including sexual harassment; and paid maternity, paternity and parental leave”:
UN Committee on Economic, Social and Cultural Rights, “General Comment No. 23: Right to
Just and Favourable Conditions of Work,” UN Doc. E/C.12/GC/23, Apr. 27, 2016, at [5].
256
See text at note 258.

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 970 6 r ights of r efugees lawfully staying

fused obligation arising from Art. 24 of the Refugee Convention and Art. 7 of
the Economic Covenant than by either norm standing alone.
To understand the substantive scope of protected interests, it makes sense to
begin with the list of eleven specific entitlements set by Art. 24(1)(a) of the
Refugee Convention, namely “remuneration, including family allowances
where these form part of remuneration, hours of work, overtime arrange-
ments, holidays with pay, restrictions on home work, minimum age of employ-
ment, apprenticeship and training, women’s work and the work of young
persons, and the enjoyment of the benefits of collective bargaining.” Despite
the breadth of this list, the scope of Art. 24 is actually more limited than that
proposed by the Secretary-General. This is because the Secretary-General’s
draft was reframed in order to bring it into line with the approach taken in the
Migration for Employment Convention, drafted by the International Labor
Organization in 1949.257 As explained by the Belgian representative, who had
also chaired the conference that produced the ILO’s convention, that treaty
“had been prepared by experts after long and careful study. They had been
guided by a desire to apply to migrant workers or refugees the same regulations
which governed nationals.”258 Because not all states that would sign the
Refugee Convention were also members of the ILO, “the draft convention on
refugees would lose nothing by duplicating the provisions of the ILO conven-
tion, with the drafting changes required to adapt the latter to refugees.”259
As the Danish representative feared,260 however, the decision to follow the
ILO’s approach meant that some protections proposed by the Secretary-
General fell by the wayside.
First, the Secretary-General had proposed that governments grant refugees
the benefit of “all the labour regulations applicable to nationals,”261 whereas
Art. 24(1)(a) follows the ILO’s lead of requiring respect for only a finite – if
nonetheless quite extensive – list of protections.262 This weakness has, how-
ever, now been largely remedied by Art. 7 of the Economic Covenant, which
provides that its list of entitlements is merely intended to provide examples of
what should be done to promote the more general obligation to provide
workers with “just and favourable conditions of work.”263
257
Convention concerning Migration for Employment (Revised) (ILO Conv. 97), 120 UNTS
70 (UNTS 1616), done July 1, 1949, entered into force Jan. 22, 1952, at Art. 6.
258
Statement of Mr. Cuvelier of Belgium, UN Doc. A/AC.32/SR.14, Jan. 26, 1950, at 5.
259
Statement of Mr. Metall of the International Labor Organization, ibid. at 6.
260
“[T]he draft convention on refugees was intended to deal specifically with that particular
category of persons and the special circumstances in which they found themselves. It
seemed pointless to copy the provisions of a convention applicable to foreigners in
general”: Statement of Mr. Larsen of Denmark, ibid. at 5.
261
Secretary-General, “Memorandum,” at 37. 262 See text at note 257.
263
See note 255. Saul cautions, however, that “informal work (including subsistence liveli-
hoods outside the modern cash economy), or work in the family, risks exclusion [from the
scope of Art. 7]”: Saul, ICESCR Commentary, at 394.

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 6.1 ri g ht t o w o r k 971

Second and more specifically, two types of standard mentioned in the

Secretary-General’s draft as examples of laws from which refugees would
benefit were not found in the ILO’s list, and were therefore not included in
the Refugee Convention.264 These are standards directed to “health and
safety in employment”265 and “guarantees of employment.” The former
concern is now addressed by the duty under Art. 7(b) of the Economic
Covenant to ensure that everyone enjoys “safe and healthy working
conditions.”266 The drafting history of Art. 7(b) makes clear only that
there was a commitment that workers be protected from conditions “injuri-
ous to health,”267 though the Committee on Economic, Social and Cultural
Rights has in practice required states to demonstrate both non-exclusion of
various categories of workers from protection and progressive achievement
in advancing the standards of worker health and safety.268 But the second
right that was omitted from Art. 24 of the Refugee Convention – the right to
be treated as a citizen in enforcing guarantees of employment, a matter of
particular concern to refugees resettled under a labor migration program –
is less clearly remedied by Art. 7 of the Economic Covenant.269 The decision
to omit any explicit reference to this right to enforce a private arrangement
follows from another shift occasioned by the decision to follow the ILO’s
approach: it explicitly grants access to the listed forms of labor protection
only “in so far as such matters are governed by laws or regulations or are
subject to the control of administrative authorities.” This clause, now
included in Art. 24(1)(a) of the Refugee Convention, makes it clear that
only public domain labor protection must be extended to refugees. As such,
where particular forms of labor protection are granted and governed solely

264
One right included in the Convention, but not mentioned in the original draft by the
Secretary-General, is the right to benefit from “overtime arrangements.” It might, how-
ever, be argued that this entitlement is implied in the duty to grant refugees protections
related to wages and working hours.
265
Secretary-General, “Memorandum,” at 37. 266 Economic Covenant, at Art. 7(b).
267
Craven, ICESCR Commentary, at 230, citing the Statement of the Yugoslav representative,
UN Doc. E/CN.4/AC.14/Add.2, at 2.
268
Craven, ICESCR Commentary, at 142.
269
Under parallel provisions of the Economic Covenant, “[i]n the case of those States that
operated a system of collective bargaining, it would be impossible for the State to assume
responsibility for matters that were negotiated by the trade unions”: ibid. at 227, quoting
from the statement of a British drafter of the Covenant at UN Doc. E/CN.4/SR.206 (1951),
at 10. Yet a relevant duty may arise under the Economic Covenant since it “requires States
parties to take measures to ensure that third parties, such as private sector employers and
enterprises, do not interfere with the enjoyment of the right” to just and favourable
conditions of work “and comply with their obligations,” to be achieved by “effective
laws and policies and adjudication”: UN Committee on Economic, Social and Cultural
Rights, “General Comment No. 23: Right to Just and Favourable Conditions of Work,”
UN Doc. E/C.12/GC/23, Apr. 27, 2016, at [59].

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 972 6 ri gh t s of r ef ugees l awfu lly staying

by private agreement between employer and employee, there is no duty to

provide refugees the same rights as nationals.270
Even as refugees were denied some of the rights proposed by the Secretary-
General in order to align Art. 24 with the ILO precedent, two of the rights
contained in the ILO’s treaty were also withheld from refugees.
First, the drafters of the Refugee Convention omitted the ILO Convention’s
protection of “membership of trade unions and enjoyment of the benefits of
collective bargaining.” The focus of concern was the first part of the clause,
which conflicted with the lower standard of treatment (assimilation to most-
favored nationals) granted to refugees by Art. 15’s guarantee of the right of
association (including trade unions).271 If the ILO’s precedent of assimilating
refugees to nationals were followed, France feared that refugees might be
entitled to establish and run trade unions:
[The French] Government . . . would be unable to accept a provision
which would make it possible for refugees to participate in the adminis-
tration or management of unions comprising French nationals and aliens,
or which would, by implication, make it possible to organize unions of
workers or employees consisting entirely of aliens . . . His Government was
prepared to accord refugees most-favoured-nation treatment, but was not
prepared to accord them treatment equal to that accorded to its own
nationals.272
The ILO’s observer accurately insisted, however, that his organization’s treaty
actually spoke only to “membership of trade unions; it was not a question of
providing in the Convention for equal treatment with regard to the organiza-
tion of trade unions and participation in their administration.”273 Nonetheless,
some states clearly objected to even allowing refugees the same right as citizens
to join trade unions. China, for instance, asserted that “because of the presence
of surplus labour in [that] country, there was no question of any alien joining
a trade union there.”274 It was therefore agreed that while Art. 24(1)(a) would
assimilate refugees to nationals for purposes of enjoying the benefits of collect-
ive bargaining,275 the right to join and participate in the work of trade unions
270
“The State could not intervene, for example, where agreements existed between employees
and employers”: Statement of Mr. Cuvelier of Belgium, UN Doc. E/AC.32/SR.14, Jan. 26,
1950, at 5.
271
See Chapter 6.5.
272
Statement of Mr. Juvigny of France, UN Doc. E/AC.32/SR.38, Aug. 17, 1950, at 10.
273
Statement of Mr. Oblath of the International Labor Organization, ibid. at 11.
274
Statement of Mr. Cha of China, ibid. at 10. China was, however, prepared to accept the
most-favored-national level of attachment provided for in Art. 15’s guarantee of freedom
of association, presumably because it did not intend to grant the nationals of any country
the right to join trade unions: ibid.
275
The American representative had earlier proposed “that the words ‘enjoyment of the
benefits of collective bargaining’ . . . should be added at the end of sub-paragraph 1(a)(i)”:
Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.14, Jan. 26, 1950, at 8.

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 6. 1 r igh t t o w ork 973

would be governed by the more general rules of Art. 15. This omission is,
however, now of little moment as it is countered by the more comprehensive
trade union rights set not only by Art. 8 of the Economic Covenant, but also by
Art. 22 of the Civil and Political Covenant.276
Second, Art. 24 of the Refugee Convention does not include the ILO
Convention’s commitment to ensure migrant workers equality of treatment
with nationals with regard to worker “accommodation.”277 The Belgian represen-
tative to the Ad Hoc Committee proposed the deletion of this protection for
purposes of the Refugee Convention,278 a move supported in particular by the
British representative who worried that “it would be difficult to guarantee exactly
equal treatment for refugees in the matter of housing, since the housing shortage
was acute and the matter had to be dealt with on the basis of need. It was also felt
that a certain degree of preference as regards housing should be given to some
categories of nationals, such as ex-servicemen.”279 The drafters therefore declined
to grant refugee workers any special housing rights, meaning that they benefit
only from the general entitlement of refugees to access housing on the same terms
as aliens generally set by Arts. 13 and 21 of the Refugee Convention.280
On the other hand, in “adapting” the ILO Convention to meet the particular
circumstances of refugees, the drafters enhanced the scope of protection in
some respects. Neither the Secretary-General’s original draft for the Refugee
Convention nor Art. 7 of the Economic Covenant explicitly required that
refugees benefit from overtime arrangements, restrictions on home work,
minimum age of employment rules, opportunities for apprenticeship and
training, and rules governing the work of young persons – all matters explicitly
governed by Art. 24(1)(a) of the Refugee Convention.
As the preceding analysis suggests, the subsequent advent of Art. 7 of the
Economic Covenant has enhanced the worker protections owed to refugees. In
addition to the two critical changes already noted – the adoption of an open-
ended approach to the relevant scope of worker protection281 and the specific

276
See Chapter 6.5 at note 867 ff.
277
One of the concerns was whether, in fact, the ILO Convention required equal treatment
only with respect to worker accommodation, or with regard to accommodation in general:
Statements of Mr. Henkin of the United States and Mr. Rain of France, ibid. at 9.
278
Statement of Mr. Cuvelier of Belgium, ibid. at 8.
279
Statement of Sir Leslie Brass of the United Kingdom, ibid. at 8. See also Statement of
Mr. Cha of China, ibid. at 9–10: “His own country, devastated by war and suffering from
a grave shortage of housing, had taken urgent measures, following the end of the Second
World War, to relieve the suffering of the refugees; those measures had often placed the
refugees in a more advantageous position, from the point of view of housing, than many
Chinese nationals. He felt that the matter of housing should be left to the initiative and
control of the individual Governments.”
280
See Chapters 4.5.1 and 6.4. This conflict was noted by the Chairman, Mr. Larsen of
Denmark, UN Doc. E/AC.32/SR.38, Aug. 17, 1950, at 9.
281
See text at note 255.

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 974 6 ri gh t s of r ef ugees l awfu lly staying

guarantee of safe and healthy working conditions282 – the Covenant also

guarantees equal opportunity “for everyone to be promoted in his employ-
ment,” with no criteria other than seniority and competence deemed
relevant.283 By virtue of this clause, a refugee worker may not ordinarily be
passed over for advancement in favor of a citizen of the host state on grounds
of his refugee (or non-citizen) status.284
So, what does this ability of refugee workers to invoke an amalgam of rights
drawn from Art. 24 of the Refugee Convention and Art. 7 of the Economic
Covenant mean in practice?
First, until “lawful stay” is achieved only Economic Covenant rights may be
claimed. This means that an interpretive exercise under Art. 7 of the Covenant
will be required to secure entitlement to those rights explicitly protected only
in the Refugee Convention – to overtime arrangements, restrictions on home
work, minimum age of employment rules, opportunities for apprenticeship
and training, and rules governing the work of young persons. Second, it means
that worker rights at this early stage are subject only to the Covenant’s duty
progressively to implement the rights without discrimination,285 in conse-
quence of which the Covenant’s presumption of a duty to achieve parity with
the rights afforded citizens286 may be displaced if differential progress on

282
See text at note 266.
283
“All workers have the right to equal opportunity for promotion through fair, merit-based
and transparent processes that respect human rights . . . Equality in promotion requires
analysis of direct and indirect obstacles to promotion”: UN Committee on Economic,
Social and Cultural Rights, “General Comment No. 23: Right to Just and Favourable
Conditions of Work,” UN Doc. E/C.12/GC/23, Apr. 27, 2016, at [31]–[32]. The
Committee on Economic, Social and Cultural Rights has held that Art. 7(c) imposes
a duty on state parties to establish objective norms for promotion in the public sector,
as well as legislation to counter private sector discrimination in promotion: ibid. at
[31]–[33].
284
That is, there would be a duty to show the reasonableness of the differential treatment on
objective grounds. While it might be possible to make this argument in relation to
security-sensitive fields of work, it would be difficult to justify why lack of citizenship
makes an otherwise employable refugee ineligible for promotion on the basis of compe-
tence and seniority. See Chapter 1.5.5.
285
“States parties must comply with their core obligations and take deliberate, concrete and
targeted steps towards the progressive realization of the right to just and favourable
conditions of work, using maximum available resources . . . States parties must move as
expeditiously and effectively as possible towards the full implementation of the right to
just and favourable conditions of work”: UN Committee on Economic, Social and Cultural
Rights, “General Comment No. 23: Right to Just and Favourable Conditions of Work,”
UN Doc. E/C.12/GC/23, Apr. 27, 2016, at [50]–[51]. The “core obligations” largely focus
on non-discrimination, but include also “minimum essential levels” of protection in
regard to minimum wages, occupational health and safety, prevention of workplace
harassment, and rest and leisure: ibid. at [65].
286
“States Parties should enact legislation enabling refugees to work and under conditions no
less favourable than for nationals [emphasis added]”: UN Committee on Economic, Social

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 6. 1 r igh t t o w ork 975

achieving protection standards is shown to be objective and reasonable.287 And

third, and potentially most serious of all, it means that in less developed
countries refugee workers not yet lawfully staying may in some cases be denied
any protections deemed “economic” – for example, to regulation of wages and to
paid holidays – under the Art. 2(3) exception set by the Economic Covenant.288
Once the “lawful stay” requirement for entitlement to rights under Art. 24 of the
Refugee Convention is met by the process of refugee status recognition or the
granting of another durable form of status,289 refugee workers are much more
solidly protected. Any right that is found in both the Convention and Covenant – as
most are – is then owed as a duty of result (not just subject to progressive
implementation), and must moreover be implemented on terms of equality with
nationals (not just without discrimination). The Art. 2(3) exception for less devel-
oped countries is also trumped by the fact that, under Art. 24 of the Refugee
Convention, all states are subject to the same duty to protect refugee workers.
Lawfully staying refugee workers are also entitled to claim – albeit subject to the
progressive implementation290 and less developed state constraints291 built into the
Economic Covenant – the net additions to the range of protected interests set by
Art. 7 of the Economic Covenant, including most critically its open-ended scope,
but also its specific entitlements to health and safety protections and to fairness in
promotion.
Three areas of substantive overlap between Art. 24 of the Refugee
Convention and Art. 7 of the Economic Covenant helpfully illustrate the
potential for positive synergy between these two core sources of protection
for refugee workers.
First, Art. 24(1)(a) of the Refugee Convention requires that refugees be
treated as citizens for purposes of the regulation of “remuneration, including
family allowances where these form part of remuneration.” The parallel right
in the Economic Covenant is more explicit, requiring governments to commit
themselves to a minimum qualitative standard of remuneration – sufficient to
provide for a “decent living for themselves and their families,” at least to the
level guaranteed by Art. 11 of the Covenant;292 and, in any event, “fair wages

and Cultural Rights, “General Comment No. 23: Right to Just and Favourable Conditions
of Work,” UN Doc. E/C.12/GC/23, Apr. 27, 2016, at [47(i)].
287
“In assessing whether States parties have complied with their obligation to take [steps to
the maximum of their available resources], the Committee examines whether steps taken
are reasonable and proportionate and whether they comply with human rights standards
and democratic principles”: UN Committee on Economic, Social and Cultural Rights,
“General Comment No. 23: Right to Just and Favourable Conditions of Work,” UN Doc.
E/C.12/GC/23, Apr. 27, 2016, at [77]. See generally Chapter 1.5.4 at note 468 ff.
288
See Chapter 1.5.4 at note 432 ff. 289 See Chapter 3.1.4.
290
See Chapter 1.5.4 at note 404 ff. 291 Ibid. at note 432 ff.
292
“The text indicates that the term ‘decent living’ is to be read in the light of the other
provisions of the Covenant. Particular reference could be made to article 11 which refers to
‘an adequate standard of living.’ More specifically, however, the phrase ‘a decent living’

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 976 6 r ights of r efugees l awful l y s taying

and equal remuneration for work of equal value without distinction of any kind
[emphasis added].” This guarantee of equal pay for equal work logically
imports a theory of comparable worth,293 and leaves no room for the applica-
tion of a margin of appreciation which might defeat the claims of refugees
brought under general duties of non-discrimination.294
Second, the Refugee Convention requires that refugee workers be treated as
nationals where there are protections addressed to “hours of work . . . [and]
holidays with pay.” The Economic Covenant requires further that hours of
work be subject to “reasonable limitations,” a standard which is now under-
stood to approximate a forty-hour week.295 The Covenant also requires that
work be constrained to allow for “rest [and] leisure,” said by one expert to
impose a bifurcated duty:
The word “rest” . . . is intended to guarantee a real cessation of activities,
giving the individual [the] possibility to regain his strength. “Leisure” on
the other hand should make it possible for the individual to cultivate his
mind and interests.296
The Committee also interprets Art. 7 to require a limit on daily and weekly
work hours, as well as daily and weekly rest periods, paid annual leave and
public holidays, and fair consideration for flexible working arrangements.297

appears to refer to those rights that depend for their enjoyment upon personal income
such as rights to housing, food, clothing, and perhaps health, education, and culture”:
Craven, ICESCR Commentary, at 235. See also Saul, ICESCR Commentary, at 393; and UN
Committee on Economic, Social and Cultural Rights, “General Comment No. 23: Right to
Just and Favourable Conditions of Work,” UN Doc. E/C.12/GC/23, Apr. 27, 2016, at [18].
The requirements of Art. 11 of the Economic Covenant are discussed in some detail in
Chapter 4.4.2.
293
See Craven, ICESCR Commentary, at 237. Indeed, “[n]ot only should workers receive
equal remuneration when they perform the same or similar jobs, but their remuneration
should also be equal even when their work is completely different but nonetheless of equal
value when assessed by objective criteria”: UN Committee on Economic, Social and
Cultural Rights, “General Comment No. 23: Right to Just and Favourable Conditions of
Work,” UN Doc. E/C.12/GC/23, Apr. 27, 2016, at [11].
294
See Chapter 1.5.5 at note 471 ff. “The requirement of equal remuneration in the Covenant
is broader than that found in other instruments . . . First, whereas the ILO Convention No.
100 and article 119 of the Treaty of Rome provide for equal pay only in relation to men and
women, article 7(1) applies to ‘all workers . . . without distinction of any kind’”: Craven,
ICESCR Commentary, at 238.
295
UN Committee on Economic, Social and Cultural Rights, “General Comment No. 23:
Right to Just and Favourable Conditions of Work,” UN Doc. E/C.12/GC/23, Apr. 27, 2016,
at [37].
296
Melander, “Article 24,” at 380.
297
UN Committee on Economic, Social and Cultural Rights, “General Comment No. 23:
Right to Just and Favourable Conditions of Work,” UN Doc. E/C.12/GC/23, Apr. 27, 2016,
at [34]–[46].

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 6.1 right to work 977

A third area of overlap between the Refugee Convention and the Economic
Covenant is the regulation of “women’s work.” While the drafters of the
Refugee Convention likely had in mind regulations which traditionally limited
the hours or conditions of work of women to enable them to meet family and
other responsibilities, in contemporary context the duty to enable workers to
cope with parenting and related responsibilities is more broadly conceived:
Measures aimed at assisting workers to reconcile work with family respon-
sibilities should not reinforce stereotyped assumptions that men are the
main breadwinners and that women should bear the main responsibility
for the household. If substantive equality is to be achieved, both male and
female workers with family responsibilities should benefit from the meas-
ures on an equal footing.298
More generally, refugees are entitled to benefit from the Economic Covenant’s
commitment to “women being guaranteed conditions of work not inferior to
those enjoyed by men, with equal pay for equal work.”299 As the supervisory
Committee has insisted, a sophisticated analysis is required, since “[i]ntersec-
tional discrimination and the absence of a life-cycle approach regarding the
needs of women lead to accumulated disadvantages that have a negative impact
on the right to just and favourable conditions of work and other rights.”300 It is
also noteworthy that the Committee has taken a particular interest in the plight
of migrant women, insisting that they must benefit from this duty to promote
sex equality in the workplace in the same way as citizens.301
In sum, the scope of the guarantee of fair working conditions for lawfully
staying refugees may be said to derive from a fusion of refugee-specific and
general human rights norms – the best of both worlds, since each of the Refugee
Convention and Economic Covenant provides for some rights not set by the
other. Most important, the generality of the duty under the Economic Covenant
implied in its recognition of the “right of everyone to the enjoyment of just and
favourable conditions of work” means that refugees may in principle immedi-
ately claim the benefit of any protection of workplace fairness, whether or not it
is of a type specifically mentioned in Art. 24(1)(a) of the Refugee Convention.
Art. 24(1)(a) of the Refugee Convention nonetheless remains of real import-
ance for at least three reasons.
First, the substantive ambit of the Refugee Convention’s guarantees of
workplace fairness is in some ways more explicitly broad than that of the
Economic Covenant, including the right to benefit from rules and procedures
related to overtime arrangements, restrictions on home work, minimum age of

298
Ibid. at [36]. 299 Economic Covenant, at Art. 7(a)(i).
300
UN Committee on Economic, Social and Cultural Rights, “General Comment No. 23:
Right to Just and Favourable Conditions of Work,” UN Doc. E/C.12/GC/23, Apr. 27, 2016,
at [47(a)].
301
See Craven, ICESCR Commentary, at 240.

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 978 6 ri gh t s of r ef ug ees l awfu lly staying

employment, apprenticeship and training, the work of young persons, and

enjoyment of the benefits of collective bargaining.
Second, even where much the same substantive rights are specified, the duties
set by the Refugee Convention are duties of result, not subject to the Economic
Covenant’s less exacting requirement of progressive, non-discriminatory imple-
mentation to the maximum of a state’s available resources. The required stand-
ard of treatment is moreover explicitly whatever is owed to nationals of the
asylum state, with no flexibility to argue for reasonable and objective differenti-
ation, as is allowed under the Economic Covenant.
Third, while less developed states may normally elect not to extend an economic
right set by the Covenant to non-citizens by invoking Art. 2(3) of that treaty, they
enjoy no such discretion where the same right also appears in the Refugee
Convention. The fact that Art. 24(1)(a) guarantees refugees the same public domain
safeguards of fair treatment in the workplace as accrue to citizens of the host
country – whatever that country’s economic circumstances – is potentially of
enormous importance to the majority of the world’s refugees who live outside
the developed world. Indeed, because the Refugee Convention repeats three of the
most critical forms of protection required by the Economic Covenant (namely
those related to remuneration, hours of work and holidays, and the employment of
women), the Refugee Convention effectively trumps Art. 2(3) of the Covenant to
the extent of that overlap.

6.1.3 Social Security

Refugee Convention, Art. 24 Labour Legislation and Social
Security
1. The Contracting States shall accord to refugees lawfully
staying in their territory the same treatment as is
accorded to nationals in respect of the following
matters: . . .
(b) Social security (legal provisions in respect of employment
injury, occupational diseases, maternity, sickness, disabil-
ity, old age, death, unemployment, family responsibilities
and any other contingency which, according to national
laws or regulations, is covered by a social security scheme),
subject to the following limitations.
(i) There may be appropriate arrangements for the mainten-
ance of acquired rights and rights in course of acquisition;
(ii) National laws or regulations of the country of residence
may prescribe special arrangements concerning benefits or
portions of benefits which are payable wholly out of public
funds, and concerning allowances paid to persons who do

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 6 .1 r igh t to wor k 979

not fulfil the contribution conditions prescribed for the

award of a normal pension.
2. The right to compensation for the death of a refugee
resulting from employment injury or from occupational dis-
ease shall not be affected by the fact that the residence of the
beneficiary is outside the territory of the Contracting State.
3. The Contracting States shall extend to refugees the benefits
of agreements concluded between them, or which may be
concluded between them in the future, concerning the main-
tenance of acquired rights and rights in the process of acquisi-
tion in regard to social security, subject only to the conditions
which apply to nationals of the States signatory to the agree-
ments in question.
4. The Contracting States will give sympathetic consideration
to extending to refugees so far as possible the benefits of
similar agreements which may at any time be in force between
such Contracting States and non-contracting States.
Economic, Social and Cultural Covenant, Art. 9
The States Parties to the present Covenant recognize the right of
everyone to . . . social insurance.
While the structure of the Refugee Convention anticipates that refugees
lawfully staying in an asylum country will support themselves by undertaking
work, the drafters logically took account of the possibility that refugees, like
citizens, might sometimes be prevented by circumstances beyond their control
from earning their own living. Most of the states that prepared the Refugee
Convention had established social security systems funded largely by
contributions from workers and employers to compensate persons unable to
work for more than strictly temporary reasons.302 But refugees were not always
in a position meaningfully to benefit from these social security systems. In
Switzerland, for example,
With regard to old-age and widows’ and orphans’ insurance, refugees were
treated as favourably as aliens generally. They had to be insured if they
carried on any gainful activity, but were entitled to a grant only if they had
paid contributions for at least 10 years, and the grant they received was

302
“A distinction is often made between social security and social welfare. Through such
a classification one wishes to separate between the ‘earned’ social security benefits of
workers and their families, and any individual or group receiving need-based assistance
from public funds, raised through tax revenues”: M. Scheinin, “The Right to Social
Security,” in A. Eide et al. eds., Economic, Social and Cultural Rights: A Textbook 159
(1995) (Scheinin, “Social Security”), at 159. The issue of access to need-based (publicly
funded) social assistance is addressed at Chapter 6.3.

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 980 6 r i g h t s of ref ugees lawfu lly staying

only two-thirds of that received by Swiss nationals. In addition, they were

not entitled to temporary grants.303
In many other countries, the situation was worse still, as non-citizens frequently
had no right to access social security at all unless a treaty was in place between the
host state and the non-citizen’s country of origin.304 An injured or incapacitated
refugee worker might therefore be left with no means of support, based simply on
the failure of his or her country of origin to sign an agreement with the new country
of residence. In line with their general commitment to compensate refugees for the
disadvantages of involuntary alienage, and their particular concern that the welfare
of refugees should not be held hostage to the whims of the states they had been
compelled to flee, the drafts presented by both the Secretary-General305 and the
French government306 proposed the assimilation of refugees lawfully staying in
a state party to citizens of the host country for purposes of entitlement to social
security. Subject only to the understanding that the actual mechanisms by which
social security benefits are delivered to refugees might be distinct,307 this basic
principle was never called into question during the drafting process.308

303
Statement of Mr. Schurch of Switzerland, UN Doc. E/AC.32/SR.38, Aug. 17, 1950, at 11.
304
“A number of bilateral treaties and certain international treaties, notably those concluded
under the auspices of the International Labour Office, place foreigners who are nationals
of State Parties to the Agreements on the same footing as nationals in respect of social
security . . . In these circumstances, the same equality should be ensured to refugees”:
Secretary-General, “Memorandum,” at 38.
305
The Secretary-General’s draft contained two separate articles. The first, Art. 16(2), pro-
vided that States would “accord to the victims of industrial accidents or their beneficiaries
the same treatment that is granted to their nationals.” The second and more general
provision, Art. 17, required further that refugees would receive national treatment “in
respect of social security . . . (sickness, maternity, invalidity, old-age insurance, insurance
against the death of the breadwinner, and unemployment insurance)”: ibid. at 37–38.
306
“While regularly resident in the territory of one of the High Contracting Parties, refugees
shall receive the same treatment as nationals in respect of insurance and social security
(including industrial accident compensation)”: France, “Draft Convention,” at 7.
307
“[I]n Denmark an insured person only made a formal contribution to the social security
scheme . . . [so] that it was in reality the State that contributed to the various funds. The
Danish Government was prepared to extend social security to refugees, but under the
Danish system it would be necessary for the benefits to be paid to refugees on that count to
come from funds other than the old age pension fund and the like”: Statement of
Mr. Larsen of Denmark, UN Doc. A/CONF.2/SR.10, July 6, 1951, at 19. See also
Statement of Mr. Hoare of the United Kingdom, ibid.: “[A] similar situation arose in the
United Kingdom. There were certain old age pensions for which foreigners were not
eligible, but their grant depended on the applicants’ means, and a foreigner whose means
were the same would get the equivalent under the general social security legislation. He
had assumed that article [24] could be interpreted broadly enough to meet the require-
ments of Denmark and the United Kingdom in that respect.”
308
Some countries, including Switzerland, maintained the view that certain social security
payments would be made to refugees only on the same terms as granted to aliens generally:
see Statement of Mr. Zutter of Switzerland, ibid. at 20. The Swiss reservation to this effect has

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 6.1 ri g ht t o w o r k 981

As in the case of guarantees of workplace fairness,309 the members of the Ad

Hoc Committee were persuaded to model the social security rules of the Refugee
Convention on the precedent of the ILO’s Migration for Employment
Convention.310 The substantive reach of Art. 24(1)(b) is therefore quite broad,
extending to legal schemes to provide for assistance in the event of “employment
injury, occupational diseases, maternity, sickness, disability, old age, death,
unemployment, family responsibilities and any other contingency which,
according to national laws or regulations, is covered by a social security scheme.”
The notion of “social security,” in other words, includes the full range of
contribution-based initiatives designed to compensate workers unable to con-
tinue working. As the intervention of the International Labor Organization
made clear, the label assigned to the program is not determinative since
“[p]resent-day legislation and treaties made no distinction between industrial
accidents and social security and it would be difficult to discuss the two matters
separately.”311 Subsequent exchanges, for example, establish that any scheme to
provide compensation for employment injury – whether called “social security”
or something else – is covered by the terms of Art. 24(1)(b).312
The only form of social security protection which elicited any significant
discussion by the drafters was assistance to be paid in the event of “disability.”
The ILO precedent used the term “invalidity,” said by that organization to mean
“permanent disability, while ‘disability’ also covers temporary disability.”313

since been withdrawn, though several other countries maintain comparable reservations: see
reservations and declarations of state parties, https://treaties.un.org, accessed Dec. 21, 2020.
309
See Chapter 6.1.2.
310
See Chapter 6.1.2 at note 248. Not all countries supported this approach. The British
representative, for example, “did not feel satisfied that the ILO text under consideration
entirely covered, or could be made to cover, the situation of refugees”: Statement of Sir
Leslie Brass of the United Kingdom, UN Doc. E/AC.32/SR.14, Jan. 26, 1950, at 7. Even the
Belgian representative who had chaired the conference that produced the ILO Convention was
cautious in his endorsement of using that treaty as the model for the Refugee Convention. He
“wished to make it clear that he did not advocate the adoption of article 6 of the Migration for
Employment Convention as it stood; he merely felt that it would be a more useful basis for
discussion than the Secretariat’s text”: Statement of Mr. Cuvelier of Belgium, ibid.
311
Statement of Mr. Metall of the International Labor Organization, UN Doc. E/AC.32/
SR.14, ibid. at 4.
312
The Belgian delegate insisted that the Refugee Convention should be understood to give
“refugees general security against social and other risks”: Statement of Mr. Cuvelier of Belgium,
UN Doc. E/AC.32/SR.24, Feb. 3, 1950, at 3. The American representative suggested that an
amendment to clarify this point was not required “as Mr. Cuvelier’s explanation would appear
in the summary record”: Statement of Mr. Henkin of the United States, ibid. That report notes
explicitly that “[t]his article includes provision for payment in cases of employment injury even
if in a particular country such payments do not constitute a part of a social security system”: Ad
Hoc Committee, “First Session Report,” at Annex II.
313
“Comments submitted by the Director-General of the International Labour Office on the
Draft Convention relating to the Status of Refugees,” UN Doc. E/AC.32/7, Aug. 15, 1950,
at 3.

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 982 6 ri gh t s of r ef ugees l awfu lly staying

Despite the ILO’s plea to incorporate the narrower term (“invalidity”) in the
Refugee Convention, the drafters were content to allow refugees to benefit from
a more comprehensive duty:
[T]he reason for the change to the word “disability” was that “invalidity”
apparently had no connection in English with the state of being an invalid.
As “disability” was in any event wider in its meaning than what was meant
by “invalidity,” [the representative of the United States] saw no reason why
the International Labour Office should object to it.314
It was thereupon agreed that the broader meaning of social security in the event
of disability – including programs to provide compensation in the event of either
permanent or temporary incapacity – should be recorded as authoritative.315
The core of what the drafters of the Refugee Convention referred to as “social
security” is today most appropriately called “social insurance,” as Saul explains:
The earliest modern form of social security was social insurance, by which
workers and employers paid co-contributions with employers to finance
sickness insurance and workers’ compensation, occasionally supple-
mented by the state. Social insurance was thus originally linked to labour
force participation and insurance-based funding . . . The nature and avail-
ability of social security gradually widened over time to include need-
based social welfare or social assistance, such as old age pensions and
unemployment benefits, which were decoupled from employment or
insurance and funded by general taxation.316
The distinction between contributory and employment-related benefits (social
insurance) and non-contributory and more general benefits (social welfare or
social assistance) is of course far from clear-cut – as is apparent both from the
scope of interests listed in Art. 24 and from the decision taken when drafting
the Economic Covenant to consolidate both types of support317 in that treaty’s
314
Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.38, Aug. 17, 1950, at
9. As Mr. Henkin suggested, the word “invalidity” simply does not have a relevant
meaning in English. See also Statement of Sir Leslie Brass of the United Kingdom, ibid.
at 16: “[T]he word ‘invalidity’ had no connection with health. If it was desired to indicate
that the disability was permanent, then the words ‘permanent disability’ should be used.
‘Invalidity’ was obviously a mistranslation of a French term, which had crept into previous
instruments.” The Chairman then proposed the use of the term “permanent disability” in
Art. 24(1)(b), but abandoned that notion when no support was expressed for the idea: ibid.
315
The Canadian representative “supported the proposal previously made by the United
States representative that the Committee’s interpretation . . . quoted by the International
Labour Office in paragraph 5 of its comments should be included in that article”:
Statement of Mr. Winter of Canada, ibid. at 15. This proposal was supported by the
representatives of the United Kingdom, Denmark, and France: ibid.
316
Saul, ICESCR Commentary, at 609.
317
The Committee on Economic, Social and Cultural Rights distinguishes between “con-
tributory or insurance-based schemes such as social insurance” and “non-contributory
schemes such as universal schemes,” both of which are addressed by Art. 9 of the

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 6. 1 r igh t t o w or k 983

Art. 9.318 Because nothing much turns on the distinction319 – lawfully staying
refugees are also entitled to access non-contributory and more general forms of
social welfare or assistance on the same terms as citizens under Refugee
Convention Art. 23, discussed below320 – this chapter focuses on the narrower
question of social insurance-type social security benefits which are more often
subject to the sorts of complex, contribution-based rules that Art. 24 seeks to
regulate.
Art. 24(1)(b) not only requires that refugees be assimilated to citizens for
purposes of benefitting from all contributory forms of social security
protection,321 but it also sets one duty to assist refugees in a way that may

Covenant. Indeed, that provision also contemplates “privately run schemes” and “self-help
or other measures, such as community-based or mutual schemes”: UN Committee on
Economic, Social, and Cultural Rights, “General Comment No. 19: The Right to Social
Security,” UN Doc. E/C.12/GC/19, Feb. 4, 2008, at [4]–[5].
318
Under Art. 9 of the Economic Covenant “the term ‘social security’ implicitly covers all the
risks involved in the loss of subsistence for reasons beyond a person’s control”:
N. Jayawickrama, The Judicial Application of Human Rights Law (2017) (Jayawickrama,
Judicial Application), at 1017–1018. The terminological confusion goes back even to the
1948 Universal Declaration of Human Rights under which “the rights to food, clothing,
housing, medical care, and social services were merged into another article that until then
had only dealt with matters of social security . . . The drafters had a great deal of trouble
with and spent far more time on the label they were to use to introduce the list of items
than on the individual items themselves”: J. Morsink, The Universal Declaration of Human
Rights (1999), at 199.
319
“In combination with Art. 23 (public relief), Art. 24 (labour legislation and social security)
enables the 1951 Convention to provide a comprehensive framework of social assistance
protection to refugees who are lawfully staying in the territory of a contracting State”:
E. Lester, “Article 24,” in A. Zimmermann ed., The 1951 Convention Relating to the Status
of Refugees and its 1967 Protocol: A Commentary 1058 (2011) (Lester, “Article 24”), at
1060. Given the clear textual reference in Art. 24 to some programs more typically treated
as social welfare or assistance – for example, benefits for old age or family responsibilities –
it of course remains open to refugees to claim the net benefit of Art. 24 in relation to those
benefits, as for example the special rule (see text at note 321) allowing refugees’ non-
resident survivors to claim benefits even if nationals are not similarly entitled.
320
See Chapter 6.3.
321
In consequence of this duty, for example, the United States is in prima facie breach by
opting to deny social security benefits to refugees who failed to acquire US citizenship
within seven years of arrival in that country: “Thousands of Refugees Face Loss of US
Benefits,” Seattle Post-Intelligencer, Nov. 12, 2003. While refugees are to be assimilated to
citizens for purposes of determining their entitlement to social security, states enjoy no
right to require refugees to become citizens in order to participate in social security
schemes. In the case of the United States, however, a finding of non-compliance is
probably avoided by the terms of a US reservation to Art. 24(1)(b) which provide that
the obligation is accepted “except insofar as that paragraph may conflict in certain
instances with any provisions of title II (old age, survivors’ and disability insurance) or
title XVIII (hospital and medical insurance for the aged) of the Social Security Act. As to
any such provision, the United States will accord to refugees lawfully staying in its territory
treatment no less favorable than is accorded aliens generally in the same circumstances”:

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 984 6 r ights of r efugees l awfully staying

not be open to nationals. As several delegates confirmed, their general laws or

regulatory practices normally prohibited the payment of a social security
survivor benefit to a non-resident. The President of the Conference of
Plenipotentiaries, for example, noted that “Danes were not allowed to draw
pensions when resident abroad, so that it would not be possible, for instance, to
allow the compensation payable on the death of a refugee to be transferred to
his widow resident outside the country.”322 Similar rules existed in the United
Kingdom, Germany, and Norway.323 Even though a rule of general application,
the refusal to pay social security to a non-resident surviving spouse or child was
said by the International Refugee Organization to have a disproportionate
impact on the survivors of refugee workers:
Difficulties had arisen in cases of fatal accidents to refugees whose benefi-
ciaries resided abroad. Since those beneficiaries were not regular residents
of the country where the accident had occurred, they had not received the
benefits.324
As such, “[t]he dispensation of a residential qualification is of particular
importance to refugees whose families are often split in their search for re-
establishment in a country other than their country of origin.”325
Art. 24(2) provides precisely that dispensation. It sets an absolute duty,
whatever the host state’s general rules, to pay any compensation due in the
event of the death of a refugee worker occasioned by employment injury or
occupational disease to the refugee’s survivors whether they live in the host
country or elsewhere.326 Importantly, none of the governments which voiced
concern about their non-conforming social security laws actually opposed this
provision, agreeing instead simply to enter a reservation on point.327 In the
result, “[p]aragraph 2 of Article 24 . . . goes beyond national treatment. Even if
the [surviving] dependants of nationals are not entitled to benefit if they stay
outside the country concerned, surviving dependants of refugees shall be

see reservations and declarations of state parties, https://treaties.un.org, accessed Dec. 21,
2020.
322
Statement of Mr. Larsen of Denmark, UN Doc. A/CONF.2/SR.10, July 6, 1951, at 21.
323
Statements of Mr. Hoare of the United Kingdom, Mr. von Trutzschler of the Federal
Republic of Germany, and Mr. Anker of Norway, ibid. at 21–22.
324
Statement of Mr. Weis of the International Refugee Organization, UN Doc. E/AC.32/
SR.14, Jan. 26, 1950, at 6.
325
United Nations, “Compilation of Comments,” at 49.
326
Weis notes, however, that “[a]s to the actual transfer of the compensation, currency
regulations are preserved but they should, as far as possible, be interpreted in such
a way as to make transfer possible”: Weis, Travaux, at 192.
327
Germany did not, in fact, enter a relevant reservation; Denmark and Norway initially
reserved on this point, but have since withdrawn their reservations to Art. 24(2). In
addition to the United Kingdom (which maintains its reservation), New Zealand and
Poland have also entered a reservation specifically to Art. 24(2): see reservations and
declarations of state parties, https://treaties.un.org, accessed Dec. 21, 2020.

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 6. 1 r igh t t o w or k 985

allowed to enjoy such benefits and have them transferred out of the
country.”328 In at least this one way, the Convention’s rules on social security
clearly accommodate the specificity of the refugee predicament.329
Apart from this one enhancement, the refugee is generally entitled to receive
only the same access to contributory forms of social security as is enjoyed by
citizens of the host country. And even this general principle is attenuated by
the rules set out in clauses (i) and (ii) of Art. 24(1)(b), read in conjunction with
Arts. 24(3) and (4).330 These rules are in response to the general expectation of
states that where an individual has contributed to the social security system of
more than one country, certain benefits (such as an old age or retirement
benefit) are routinely cost-shared by the various governments in which some
measure of entitlement has accrued. As the representative of the International
Labor Organization explained, “agreements were often concluded in order to
enable workers who moved from one country to another to accumulate the
insurance benefits earned in both countries. The two countries concerned
would each agree to pay their share according to the time worked in their
territory.”331 This is the case for nearly all refugees, who have generally spent
part of their working life in their country of origin, and the rest in one or more
asylum states. But because of their status as refugees, there is the possibility that
partner states will not in fact be willing to cost-share the social security to be
paid by the asylum country.
Most obviously, the ruptured relationship between the refugee and his or
her country of origin means that there is no guarantee that the country of
origin will be willing to make its contribution to the refugee’s social security
benefit.332 But it is also frequently the case that refugees have worked in

328
Grahl-Madsen, Commentary, at 96–97.
329
Art. 9 of the Economic Covenant has more recently been interpreted along similar lines to
provide that “[w]here non-nationals, including migrant workers, have contributed to
a social security scheme, they should be able to benefit from that contribution or retrieve
their contributions if they leave the country”: UN Committee on Economic, Social, and
Cultural Rights, “General Comment No. 19: The Right to Social Security,” UN Doc. E/
C.12/GC/19, Feb. 4, 2008, at [36].
330
Importantly, any constraints on treating refugees on terms of equality with nationals –
including those set by the Refugee Convention – would, in line with Art. 26 of the Civil and
Political Covenant, need also to pass muster as “reasonable and objective” forms of
differentiation: see Chapter 1.5.5 and Saul, ICESCR Commentary, at 676–678.
Adjudicating a case under domestic constitutional law, the South African Constitutional
Court – even as it found differentiation between citizens and permanent residents to be
unjustifiable – also suggested that the exclusion of some other categories of non-citizens
would be “reasonable”: Louis Khosa v. Minister of Social Development, [2004] ZACC 11
(SA CC, Mar. 4, 2004), at [59].
331
Statement of Mr. Metall of the ILO, UN Doc. E/AC.32/SR.14, Jan. 26, 1950, at 11.
332
“Such agreements could benefit the nationals of the countries concerned but it was
difficult to see how they could benefit a refugee who had lost the protection of his
Government and had cut himself off from the social security system of his country of

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 986 6 r ights of r efugees lawfully staying

a country of transit or first asylum which may be similarly disinclined to

contribute to the social security benefit.333 In either of these situations, and
unless express provision were made in the text of Art. 24, the drafters were
concerned that the asylum state might be in the unhappy position of being
asked to pay a full social security benefit to the refugee, but being unable to
recover any contribution from the governments of other states where the
refugee had accrued social security entitlements.334 As Grahl-Madsen explains,
this predicament could arise because
[i]t follows from sub-paragraph [(1)(b)] that a refugee shall as a rule
receive national treatment with regard to social security in the country
where he is lawfully staying. That is to say, if nationals, by virtue of being
nationals, are entitled to the full benefit of a social security scheme even if
they have spent most of their life abroad and only resided in the country
for a marginal period, whereas aliens must have resided in the country and
contributed to the scheme for a considerable period of time in order to
become eligible, refugees shall be assimilated to the former.335
The essential goal of clauses (i) and (ii) of Art. 24(1)(b), read together with
paragraphs (3) and (4) of the same article, is therefore to delimit the general
right of refugees to be treated as citizens for purposes of entitlement to social
security by authorizing state parties to reduce the refugee’s social security
benefit to the extent of any unfunded contribution which should in principle
have been made by one or more other countries in which the refugee has
worked. The Belgian delegate to the Ad Hoc Committee provided a simple
example of the approach ultimately adopted:
He took as an example the case of a Polish miner in France. If the miner
had worked ten years in Poland and twenty years in France, under the
existing bilateral agreement Poland would pay one-third and France two-

origin”: Statement of Mr. Metall of the ILO, ibid. See also Statement of Mr. Cuvelier of
Belgium, ibid. at 12: “[S]uch arrangements were always the result of special
arrangements . . . [R]efugees could not expect to receive any insurance benefits from
their countries of origin.”
333
This situation was raised by the observer from the American Federation of Labor.
“[A]lthough refugees could not expect to benefit from any rights acquired in their
countries of origin, some of them had acquired rights in Germany before moving to
some other country for resettlement. Arrangements were being made to obtain recogni-
tion for those rights. He fully agreed with the representative of Belgium that it was essential
to mention the limitation [in para. 14(1)(b)(i)] since all the arrangements were the result
of special agreements”: Statement of Mr. Stolz of the American Federation of Labor, ibid.
at 12.
334
This can be seen in the blunt response of the American representative to an amendment
proposed by the American Federation of Labor: “Mr. Stolz’s amendment would ensure
a refugee the rights he had acquired by virtue of bilateral agreements before becoming
a refugee. He did not consider it possible to adopt such a proposal.”
335
Grahl-Madsen, Commentary, at 94.

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 6.1 r ight to work 987

thirds of his pension. If the miner became a refugee, however, Poland

could hardly be asked to pay the share which normally ought to have been
paid by Poland. The miner would therefore receive in France only the two-
thirds which that country had originally undertaken to pay.336
The text which implements this principle is somewhat awkwardly drafted, but
is actually quite sensible if its various parts are viewed as a whole.337
First, and in line with the Belgian representative’s example just cited, it was
agreed that there could be no question of denying refugees such social security
benefits as are owed them under the general rules of the host state, taking into
account relevant requirements based on such factors as the time spent working
and/or contributions made while working in the asylum state. On the basis of
a firm assurance that “even in the absence of bilateral agreements, [a refugee’s]
acquired rights would be safeguarded,”338 a nongovernmental amendment to
Art. 24(1)(b) designed explicitly to safeguard the portion of a social security
benefit payable under the host state’s own laws was withdrawn.339
Second, clause (i) is predicated on the understanding that refugees should in
principle receive the benefit of any bilateral or other arrangements in place to
preserve their “acquired rights and rights in course of acquisition.”340 As the
Belgian representative explained, “[a] Polish miner residing in France would
normally receive the insurance benefits he had accumulated in both countries,
assuming there was close cooperation between the two countries in respect of
insurance.”341 But the fact that clause (i) is a limitation clause makes clear that
336
Statement of Mr. Cuvelier of Belgium, UN Doc. E/AC.32/SR.24, Feb. 3, 1950, at 4.
337
One commentator nonetheless suggests that this provision “operates as a limitation on the
obligation of States to treat refugees as their own nationals only where acquired rights or rights
in the process of acquisition are indeed maintained through ‘appropriate arrangements’”:
Lester, “Article 24,” at 1072. Not only is this understanding a poor fit with clauses (3) and (4)
of Art. 24, but it would seem to lead to the odd result that benefits to a refugee might be limited
if cost-sharing did occur, precisely the opposite of the concern voiced by the drafters. Nor is it
sound to argue that this counter-intuitive interpretation is compelled by the duty to ensure all
persons “the rights to an adequate standard of living and to life, and [to respect the]
prohibition on inhuman or degrading treatment” (ibid.), though of course those free-
standing duties must in all cases be respected: see Chapters 4.3.2 and 4.4.
338
Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.14, Jan. 26, 1950,
at 12.
339
In response to Mr. Henkin’s assurance (see text at note 338), the representative of the
American Federation of Labor withdrew his amendment, noting that he had proposed it
“only because he had feared that becoming a refugee might deprive a person of the share to
be paid by the country of reception”: Statement of Mr. Stolz of the American Federation of
Labor, UN Doc. E/AC.32/SR.24, Feb. 3, 1950, at 4.
340
“Maintenance of ‘acquired rights’ relates to rights to social security benefits acquired in one
country and to be recognized, within the existing accumulation, by another country; main-
tenance of ‘rights in [course] of acquisition’ refers to a partial accumulation of rights which in
itself is not sufficient to grant benefits and which represents part of the necessary amount of
accumulation required for the enjoyment of benefits”: Robinson, History, at 126.
341
Statement of Mr. Cuvelier of Belgium, UN Doc. E/AC.32/SR.23, Feb. 3, 1950, at 12.

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 988 6 ri gh t s of r ef ugees l awfu lly staying

where there are no such arrangements in place, the country in which the
refugee is staying cannot be expected to pay a benefit to the extent it is owed
as the result of work not carried out on its territory, or for which worker or
other contributions have not been made to its coffers. As Robinson writes,
these rights acquired abroad “may either be disregarded or recognized in part
only.”342
It was also agreed that governments could lawfully exclude refugees from
certain special arrangements funded by the state and designed to “top up”
contribution-based social security payments to their own citizens.343 But the
right of governments to deny refugees access to such additional benefits is
limited to circumstances in which the supplementary benefit is paid entirely
from state funds, that is, from a fund not based even in part on contributions
from workers or employers. This restriction is clear from the text of Art.
24(1)(b)(ii), which resulted from the defeat of an Austrian proposal that refugees
not receive the benefit of special arrangements funded “wholly or partially out of
public funds.”344 While sympathetic to the right of a state to provide special
support to its citizens, the drafters feared that if any leeway were granted states to
exclude refugees from special payments funded even in part from employer and
worker contributions, “refugees would lose certain rights deriving from their
contributions.”345 As the French government insisted,
It was . . . possible that under certain social security systems the contribu-
tions paid by employers and workers were not sufficient to ensure financial
stability; in such cases there was often a system of State assistance to
redress the balance. If the Austrian proposal were accepted, in countries
where the system was financed partly by the State but mainly by

342
Robinson, History, at 126. Grahl-Madsen takes a more extreme position, arguing that
a refugee who is subject to a treaty pertaining to a social security scheme is excluded from
the general right to be assimilated to nationals for purposes of entitlement to social
security: Grahl-Madsen, Commentary, at 94. There was, however, no discussion among
the drafters that supports this view. Moreover, if the goal of clause (i) had been to exclude
refugees covered by interstate social security treaties from the scope of the basic duty to
assimilate refugees to nationals, it is surprising that it was framed merely in descriptive
terms (“There may be appropriate agreements . . .”) rather than as a definitive exclusion
from the basic duty set by Art. 24(1)(b).
343
Grahl-Madsen clarifies that this clause normally refers to “allowances paid over and above
the partial pension to which a person may be entitled by virtue of contributions paid, so
that his total benefit shall be equal to a normal (or only slightly less than a normal)
pension”: Grahl-Madsen, Commentary, at 96. But see Lester, “Article 24,” at 1073,
suggesting to the contrary that this clause “does not absolve contracting States of the
responsibility of ensuring that special arrangements are made to cover those refugees
whose situation cannot be adequately covered by the usual arrangements that are in place
for nationals generally.”
344
United Nations, “Compilation of Comments,” at 48.
345
Statement of Mr. Oblath of the International Labor Organization, UN Doc. E/AC.32/
SR.38, Aug. 17, 1950, at 17.

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 6 .1 righ t to wor k 989

contributions from the persons insured, wage-earning refugees who paid

contributions might find themselves deprived of all right to benefits, that
was to say, of the counterpart of the contributions they had paid.346
Because it could be seen that the Austrian approach was open to an interpret-
ation that might deprive a refugee worker “of the benefits of his own or his
employer’s contributions,”347 sub-paragraph (ii) of Art. 24(1)(b) disallows any
exclusion of refugees from special arrangements funded in whole or in part
from such contributions.
One of the most important protections of Art. 24 is the guarantee in paragraph
(3) that refugees benefit automatically from any social security arrangements
made between or among state parties to the Refugee Convention. As conceived
by the Ad Hoc Committee, Art. 24(3) would have gone farther still, entitling
refugees to claim the benefit of any interstate agreement binding their host
country, including one with a state not bound by the Refugee Convention.348
There was, however, concern that such a broadly framed duty could effectively
compel state parties to pay out a combined social security benefit even when the
partner country refused to cost-share the benefit. Governments were willing to
commit themselves fully to enfranchise refugees only where there was
a sufficiently solid guarantee that cost-sharing rules would apply also to benefits
paid to refugees – and only state parties to the Refugee Convention would clearly
be bound in this regard.349 As explained by the British representative to the
Conference of Plenipotentiaries:
He had no objection to the principle that those agreements [on transfer of
social security rights] . . . should apply equally to refugees and to nationals,
but the text . . . [should not] permit of the possibility that, under a bilateral
agreement concluded between a State Party and a State non-Party to the
Convention, the former would be required to apply to refugees from the
latter the same conditions as it would apply to its own nationals. Such
a unilateral obligation would be an unjustifiable burden on the State Party
to the Convention, and he doubted whether it would be practicable
without the co-operation of the non-Contracting State. He believed the

346
Statement of Mr. Juvigny of France, ibid. at 17–18.
347
Statement of Sir Leslie Brass of the United Kingdom, ibid. at 18.
348
“The Contracting States whose nationals enjoy the benefits of agreements for the main-
tenance of acquired rights and rights in the process of acquisition in regard to social
security, shall extend the benefits of such agreements to refugees subject only to the
conditions which apply to their nationals”: “Report of the Ad Hoc Committee on
Refugees and Stateless Persons, Second Session,” UN Doc. E/1850, Aug. 25, 1950 (Ad
Hoc Committee, “Second Session Report”), at 22.
349
Lester thus rightly observes that “[i]f country A were to default, the host government
would still be bound to pay the refugees the whole of any combined benefit due to them
pursuant to its arrangement with the defaulting State. Country B would then have to rely
on its right to seek redress from the defaulting government of country A based on its Art.
24, para. 3 duty”: Lester, “Article 24,” at 1075.

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 990 6 r i g h t s of ref ugees lawfu lly staying

original intention had been that where such agreements existed between
Contracting States, they should automatically be applied to refugees from
both countries.350
The text of Art. 24(3) was therefore amended to limit the legal duty of states
to enfranchise refugees under interstate arrangements for the protection of
social security benefits to such agreements as are made between or among state
parties to the Refugee Convention.351 This provision clearly responds to one of
the two circumstances of initial concern to the drafters, namely the case of
refugees who had worked in one or more countries of asylum before ultimately
settling in a different state party:352
Taking the case of the social security agreement between France and
Belgium, and assuming that there was no additional protocol extending
the benefits of that agreement to refugees, and further assuming that both
France and Belgium ratified the draft Convention at present before the
Conference, refugees moving from France to Belgium and vice versa would
enjoy the benefits accruing to nationals even though there was no special
agreement to that effect.
Consequently, benefits enjoyed by nationals would be extended to
refugees whose countries of domicile or of habitual residence were parties
to the Convention and to a bilateral agreement relating to the maintenance
of acquired rights and rights in the process of acquisition for their nation-
als, provided such refugees were able to fulfil the requirements to which
such benefits were subject so far as nationals were concerned.353
Moreover, refugees are entitled to benefit not only from contributory arrange-
ments which are in place between state parties when the refugee arrives in the

350
Statement of Mr. Hoare of the United Kingdom, UN Doc. A/CONF.2/SR.10, July 6, 1951,
at 22.
351
Grahl-Madsen takes the view that para. 3 applies also where two or more contracting states
are parties to a multilateral treaty to which non-contracting states are also parties, but only
as regards “rights acquired or in the process of acquisition in countries parties to the
[Refugee] Convention”: Grahl-Madsen, Commentary, at 97. This is a sensible inter-
pretation, as the mutuality of obligation to enfranchise refugees upon which para. 3 is
based would exist in such circumstances.
352
Robinson argues that para. 3 “refers only to rights which a refugee accumulated in
a Contracting State where he first found asylum and which he would like to make use of
in another such country [emphasis added]”: Robinson, History, at 127. While this was
clearly the focus of concern to the drafters, there is no basis in the language adopted or
purposes pursued to exclude a similar approach to, for example, social security entitle-
ment acquired by a refugee in respect of work undertaken in a state party different from
that in which he or she has established residence. See also Lester, “Article 24,” at 1076.
353
Statement of Mr. Robinson of Israel, UN Doc. A/CONF.2/SR.11, July 9, 1951, at 5. This
statement was made in response to a request from the Conference that Mr. Robinson
review the drafting records of the Ad Hoc Committee on this point, and “enlighten the
Conference at its next meeting”: Statement of the President, Mr. Larsen of Denmark, UN
Doc. A/CONF.2/SR.10, July 6, 1951, at 24.

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 6. 1 r ight t o w ork 991

asylum country, but also from any future arrangements which may come into
force.354 No special measures are required to enfranchise refugees, since “[t]he
intention of paragraph 3 of article [24] was, of course, to extend such benefits
to refugees ipso facto, without any special provisions to that end.”355
States were, however, unwilling to undertake a comparable legal commit-
ment where combined social security benefits should in principle be cost-
shared with a state that is not a party to the Refugee Convention, including
the refugee’s country of origin. In these circumstances, governments were
prepared to agree only that, as a matter of principle,356 they would endeavor
to provide refugees with the benefits stipulated under relevant social security
agreements. Thus, paragraph 4 speaks to the situation of an individual
who, having accumulated certain social security rights in his home country
and having moved to another country which had a social security benefits
agreement with the former, then renounced the protection of his country
of origin and became a refugee. Under what circumstances the contractual
right to the benefits accruing under the bilateral agreement would be
forfeited was a matter that could only be determined by the parties to
the agreement in the light of its letter and of its spirit. A State, granting
asylum to a refugee of the nature just described, would, however, not be
prevented from granting benefits of its own free will to a person towards
whom it might have no contractual obligations. The purpose of paragraph
4 was to provide for such a contingency, but, unlike paragraph 3, it took
the form, not of a binding provision but of a recommendation.357

354
Speaking to his amendment, which was adopted by the Conference (UN Doc. A/CONF.2/
SR.11, July 9, 1951, at 7), the Belgian representative affirmed that his goal in proposing an
amendment to para. 3 to include agreements “which may be concluded between them in the
future” was “to enable refugees to benefit not only from existing social security measures, but
also from any subsequent arrangements”: Statement of Mr. Herment of Belgium, ibid. at 6.
355
Statement of Mr. Robinson of Israel, ibid. at 7. This clarification was offered in response to
a question from the Belgian delegate who wished to know “whether [the Israeli] representative
thought that the agreements referred to should become automatically applicable to refugees as
soon as the Convention had been ratified”: Statement of Mr. Herment of Belgium, ibid. at 6.
Upon receiving the quoted response from Mr. Robinson, the Belgian delegate “accepted the
Israeli representative’s interpretation”: ibid. at 7. The fact that no specific mention of refugees
in a relevant interstate agreement is required to enfranchise refugees does not, however, mean
that the international agreement is automatically enforceable in domestic law. As Weis
observes, “[w]hether the provision of [para.] 3 is self-executing depends on the national law
of the Contracting State concerned. Where the provision is not self-executing, the Contracting
State is obliged to take the necessary measures to extend the benefits of the agreement to
refugees, be it by arrangement with the other Party to the agreement or by measures on the
national level”: Weis, Travaux, at 192–193.
356
The American representative referred to para. 4 as “merely a recommendation, [and
therefore] . . . not [a matter] in respect of which a reservation was justified”: Statement
of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.38, Aug. 17, 1950, at 9.
357
Statement of Mr. Robinson of Israel, UN Doc. A/CONF.2/SR.11, July 9, 1951, at 6.

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 992 6 r ights of r efugees l awful l y s taying

In contrast to the form in which it was proposed by the Ad Hoc Committee,

paragraph 4 as adopted is not restricted only to agreements which may exist
with a refugee’s country of origin,358 but extends also to agreements between
the host country and any “non-contracting State.” Thus, for example,
a refugee’s country of residence should make best efforts to secure additional
social security benefits for the refugee based on work and social security
contributions in a country of first asylum that is not a party to the
Convention.359 Also in contrast to the Ad Hoc Committee’s approach, such
efforts are expected to be made on behalf of all refugees similarly situated, not
simply in individual cases.360
In sum, the general rule is that refugees lawfully staying in a state party are to
be assimilated to that country’s citizens for purposes of entitlement to all forms
of contributory social security. Indeed, refugees are entitled to better than
national treatment where necessary to ensure that a social security death
benefit is paid out to non-resident dependents. The major limitation on the
right of refugees to national treatment in regard to social security involves the
situation where a portion of the benefit due a refugee would ordinarily be paid
at least in part by another country in which the refugee has accrued some
measure of social security entitlement. Where there is no arrangement in place
between the relevant governments to combine the entitlements to social
security of persons who have worked and contributed in each jurisdiction,
the refugee is entitled only to receive whatever benefits are owed under the
domestic rules of the host country.
On the other hand, where there is a cost-sharing arrangement in place
between the refugee’s host state and the other country in which entitlement
has accrued, the refugee should in principle receive the combined benefit. But
if in fact the other country refuses to pay its share, the host state is liable to pay
out only the part of the social security benefit to which the refugee is entitled
under its domestic laws. This is so even if the citizens of the host country

358
“The Contracting States will give sympathetic consideration to extending to individual
refugees so far as possible the benefits of similar agreements which may have been
concluded by such Contracting States with the country of the individual’s nationality or
former nationality”: Ad Hoc Committee, “Second Session Report,” at 22.
359
Indeed, Robinson sees this as the primary purpose of para. 4. “Para. 4 deals with rights
accumulated in the refugee’s first country of asylum, a non-Contracting State, to be
exercised in his second country of asylum, a Contracting State. In such instances the
Convention does not impose on the Contracting State an obligation to treat the refugee as
if he were a national of the non-Contracting State, but only recommends such a treatment
to the parties to the Convention”: Robinson, History, at 127.
360
The amendment approved by the Ad Hoc Committee occurred in response to the proposal
of Mr. Robinson of Israel, UN Doc. A/CONF.2/SR.11, July 9, 1951, at 8–9: “[T]he Style
Committee might consider the desirability of deleting the word ‘individual’ before the
word ‘refugees’ in the second line of paragraph 4, particularly if there was any risk of the
retention of that word leading to discrimination between one refugee and another.”

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 6.2 p rof es sional p ra ctice 993

would, in similar circumstances, receive a supplementary payment funded by the

government to “top up” the domestic portion – thus amounting to a departure
from the basic principle of Art. 24 that refugees should be afforded national
treatment. The only circumstance in which a refugee is effectively insulated
against the prospect of a reduced social security benefit based on the default of
a country under an agreement for shared social security responsibility is where
that other country is also a party to the Refugee Convention. If so, the host
government must pay the refugee the whole of any combined benefit due to the
refugee pursuant to its arrangement with the defaulting state, then rely on its
right to seek redress from the defaulting government based on the latter’s duty to
extend the benefit of the arrangement to refugees under Art. 24 of the Refugee
Convention. Where, however, the defaulting government is not a party to the
Refugee Convention (and therefore may not be legally required to extend the
benefit of social security cooperation agreements to refugees), the host state is
under no legal duty to make up the shortfall. Art. 24(4) encourages, but does not
require, state parties to do what they can to assist refugees in such a predicament.

6.2 Professional Practice

In Jordan, refugees and other non-citizens are barred from working in
a number of fields, including law and accounting.361 While not outright
barring non-citizens from practicing their professions, South Africa prohibits
recruitment of professionals from its less developed neighbors, “officially out
of an anti–brain drain principled position.”362 The difficulty in obtaining
recognition of their professional qualifications has pushed most refugees into
the South African informal labor market, where their skills are underutilized or
irrelevant.363 Such refusals to allow refugees to work as professionals may have
truly grave consequences – as when Turkey denied Iraqi Kurdish doctors
permission to work in the Kurdish refugee camps.364
More generally, refugees with professional qualifications in the less devel-
oped world often confront generalized barriers on access to work by non-
citizens365 – as is the case in Iran366 – or may be confined to camps or
361
R. Faek, “Syrian Refugees are Often Steered into Illegal Jobs,” Al-Fanar Media, Oct. 9, 2018.
362
Zetter and Ruaudel, “Right to Work: Part II,” at 151. 363 Ibid.
364
Initiative for Human Rights in Kurdistan, “Silence is Killing Them: A Report on the
Situation of the Kurdish Refugees in Turkey” (1990), at 12.
365
See Chapter 6.1 at notes 30–32.
366
“[Refugees] can only engage in a limited number of occupations, a provision that clearly
limits their options for employment. They are only permitted to work in 16 professional
categories, including plaster manufacture, making acid for batteries, digging, brick-
making, laying asphalt and concrete, herding sheep, slaughtering animals, burning gar-
bage, loading and unloading trucks, stone cutting, road building, mining, and farming.
Most of these jobs are heavy manual labor, mainly menial and potentially dangerous jobs
that have been selected based on labor market demands and to ensure that Afghans do not

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 994 6 r i g h t s of ref ugees lawfu lly staying

settlements where the opportunities for professional practice may simply not
exist.367 For example, despite Sudan’s formal recognition of the right of
refugees to work as professionals,368 restrictions on freedom of movement
have hindered access to this right in practice.369
Some states of the developed world also bar non-citizens from engaging in
certain professions, most commonly including the civil service and military, but
sometimes including also the legal profession, judiciary, law enforcement, medi-
cine, engineering, architecture, and teaching.370 France also prohibits non-
citizens from working as veterinarians or public accountants.371 The Supreme
Court of the United States has upheld bars on the employment of non-citizens as
public school teachers,372 police officers,373 and deputy probation officers,374 but
struck down citizenship requirements for lawyers, engineers, and notaries.375 EU
states grant refugees automatic access to regulated professions if they have been
licensed by states of the Union, but not otherwise.376

take jobs away from Iranian citizens. Refugees found working in unauthorized occupa-
tions are considered to have violated the terms of their refugee status under the Amayesh
system and could be subject to deportation to Afghanistan. However, in practice a number
of refugees engage in business activities and are employed in jobs other than those stated
on their work permits”: Zetter and Ruaudel, “Right to Work: Part II,” at 115.
367
See Chapter 5.2 at notes 286–290.
368
Section 13(2)(d) of the Asylum (Organisation) Act 2014, cited in Zetter and Ruaudel,
“Right to Work: Part II,” at 162–163.
369
Ibid. at 162, 164.
370
UNHCR, “Information Note on Implementation of the 1951 Convention and the 1967
Protocol relating to the Status of Refugees,” UN Doc. EC/SCP/66, July 22, 1991, at [82], [84].
371
Other professions limited to French nationals include civil servants, solicitors, lawyers,
court bailiffs, and tobacco dealers: I. Martin et al., “From Refugees to Workers: Mapping
Labour-Market Integration Support Measures for Asylum Seekers and Refugees in EU
Member States: Volume II – Literature Review and Country Case Studies,” Bertelsmann
Stiftung, 2018 (Martin, “Mapping Labour-Market Integration Support Measures”), at 54.
Moreover, “a number of occupations – including medical professions, travel agents, and
funeral directors – are regulated (reglementées), that is their practice is conditional on
authorization from a professional association (ordre professionnel) and to a diploma
obtained in France. If a refugee wants to practice one of these professions, he/she has
either to retake the diploma in France or to pass a test”: ibid.
372
Ambach v. Norwick, 441 US 68 (US SC, Apr. 17, 1979).
373
Foley v. Connelie, 435 US 291 (US SC, Mar. 22, 1978).
374
Cabell v. Chavez-Salido, 454 US 432 (US SC, Jan. 12, 1982).
375
In re Griffiths, 413 US 717 (US SC, June 25, 1973), re lawyers; Examining Board of
Engineers v. Flores de Otero, 426 US 572 (US SC, June 17, 1976), re engineers; Bernal
v. Fainter, 467 US 216 (US SC, May 30, 1984), re notaries public.
376
Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005
on the recognition of professional qualifications established the principle that qualifying
architects, dentists, doctors, midwives, nurses, pharmacists, and veterinary surgeons are
entitled to practice their profession in the EU member state of their choice: Directive 2013/
55/EU of the European Parliament and of the Council of 20 November 2013 amending
Directive 2005/36/EC on the recognition of professional qualifications.

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 6.2 p rof es sional p ra ctice 995

Even where formal bars do not exist, the nearly universal practice of profes-
sional accreditation poses a significant barrier in practical terms for refugees who
wish to resume their professional life in an asylum state. Professions may refuse
to recognize certifications obtained outside the reception country, require sub-
stantial apprenticeship in the host state, subject foreign-trained individuals to
certification examinations not required of citizens, or require that candidates be
licensed in the particular discipline in their country of origin – effectively
excluding applications from refugees whose home states did not regulate their
profession.377 The result of these many requirements is that professional refu-
gees “often cannot practice because there is no equivalence of degrees and
qualifications, and they experience severe downward social mobility.”378
By way of example, while Australia permits resettled Iraqi and Syrian refugees to
work, dentists, engineers, pharmacists, and other professionals have faced “two key
employment issues: the recognition of qualifications, and the catch-22: they need
Australia employment experience before they can get a job in Australia, but they
first need that job to get that experience.”379 Despite a growing shortage of doctors,
most medical licenses obtained overseas are not recognized in the United States;
instead, refugee doctors with years or even decades of experience must study for
costly exams and compete with graduates of US medical schools for first-year
residency slots.380
In principle, states of the European Union have committed themselves to
“ensure equal treatment between beneficiaries of international protection and
nationals in the context of the existing recognition procedures for foreign dip-
lomas, certificates and other evidence of formal qualifications.”381 They have
moreover agreed to “endeavour to facilitate full access for beneficiaries of inter-
national protection who cannot provide documentary evidence of their qualifica-
tions to appropriate schemes for the assessment, validation and accreditation of
their prior learning.”382 Yet in practice European states have taken a variety of
approaches to the recognition of refugee qualifications obtained overseas: Italy
requires original certificates for professional qualifications originating outside the
EU,383 Belgium offers validation for only a few occupations and may require
additional training prior to accessing the job market,384 and Hungary conducts

377
P. Cumming, Access: Task Force on Access to Professions and Trades in Ontario (1989).
378
D. Joly, Refugees: Asylum in Europe? (1992), at 58.
379
B. Doherty, “‘The Catch-22’: Refugees to Australia Struggle to Find Work,” Guardian, Mar.
19, 2018.
380
M. Nedelman, “Why Refugee Doctors become Taxi Drivers,” CNN, Aug. 9, 2017.
381
EU Qualification Directive (2011), at Art. 28(1). 382 Ibid. at Art. 28(2).
383
Zetter and Ruaudel, “Right to Work: Part II,” at 72–73.
384
“European Employment Policy Observatory Synthesis: Challenges Faced by Asylum
Seekers and Refugees in Successfully Integrating into the Labour Market,” European
Employment Policy Observatory, May 2016, at 16.

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 996 6 r i g h t s of ref ugees lawfu lly staying

recognition of foreign qualifications in Hungarian and “requires a relatively high

level of command of the language.”385
Aware of the barriers such requirements present, some states have taken
affirmative steps to assist their refugee populations to overcome them. Sweden,
for instance, has instituted a “fast track” program to facilitate accelerated access
of refugees to targeted industries and occupations experiencing labor short-
ages – including social scientists, teachers, health and medical professionals,
and pharmacists.386 Scotland provides English and medical courses, as well as
professional placements with practitioners and hospitals.387 The United
Kingdom similarly provides a “bridging program” designed to facilitate the
integration of refugee doctors into the UK medical profession.388 Since 2012
Germany has required not only timely evaluations of foreign credentials, but
also “‘a written positive assessment of skills and qualifications’ in cases where
formal recognition is not possible. Both regulated and non-regulated profes-
sions are covered by this system. As part of the law, other means can be used to
assess the credentials of refugees who lack documents (through no fault of their
own), such as ‘assessment tests, expert interviews, and practical and/or theor-
etical tests.’”389 Similarly, Norway’s centralized foreign credentials assessment
program, through which refugees’ backgrounds and qualifications are recon-
structed by experts in the relevant fields, has attracted international acclaim for
its ability to facilitate the return to their professions of those without verifiable
licenses or other documentation.390
Refugee Convention, Art. 19 Liberal Professions
1. Each Contracting State shall accord to refugees lawfully
staying in their territory who hold diplomas recognized by
the competent authorities of that State, and who are desir-
ous of practising a liberal profession, treatment as favour-
able as possible and, in any event, not less favourable than
that accorded to aliens generally in the same circumstances.

385
Ibid.
386
“Engaging with Employers in the Hiring of Refugees,” UNHCR and OECD (2018), at 15;
see also Sweden Ministry of Employment, “Fast Track – A Quicker Introduction of Newly
Arrived Immigrants,” www.government.se/articles/2015/12/fast-track---a-quicker-intro
duction-of-newly-arrived-immigrants/, accessed Mar. 5, 2020.
387
C. Nye and J. Furst, “The Refugee Doctors Learning to Speak Glaswegian,” BBC, Sept. 6,
2017.
388
See UK Refugee Council, “Refugee Health Professionals – Building Bridges Programme:
PLAB and Clinical Attachment Project for Refugee Doctors,” www.refugeecouncil.org.uk
/what_we_do/refugee_services/refugees_into_jobs/refugee_health_professionals/, accessed
Mar. 5, 2020.
389
B. Loo, “Recognizing Refugee Qualifications: Practical Tips for Credential Assessment,”
World Education Services, May 2016, at 6.
390
Ibid. at 18–19.

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 6. 2 p r o f es s i o n al p r a c tic e 997

2. The Contracting States shall use their best endeavours

consistently with their laws and constitutions to secure
the settlement of such refugees in the territories, other
than the metropolitan territory, for whose international
relations they are responsible.
It seems clear that the Secretary-General’s draft of what became Art. 19 was
motivated by a genuine concern for the predicament of refugees who found
themselves in reception states where they could not exercise the only livelihood
familiar to them:
Access to the liberal professions, which are the most highly regulated of all
and generally speaking, overcrowded in European countries, is, in prin-
ciple, barred to foreigners. Where, however, treaty provisions exist, these
professions are open to foreigners to some extent. It should be noted that
there is a high proportion of members of the liberal professions among the
refugees, including qualified and experienced scientists, engineers, archi-
tects and doctors holding diplomas equivalent to those required in the
reception country. Such professional men, moreover, are not suited to any
other occupation than their own.391
It was therefore recommended that professionally qualified refugees be assimi-
lated to most-favored foreigners, allowing them access to at least those profes-
sional opportunities open to the citizens of partner and other closely affiliated
countries.392
The drafters, however, showed little enthusiasm to guarantee even this fairly
narrow opportunity for refugees to have privileged access to professional practice.
To begin with, they decided not to work from the Secretary-General’s proposal for
Art. 19, but instead to base their drafting on a proposal from the French govern-
ment. The latter did not recommend most-favored-national treatment, but stipu-
lated simply that governments would provide refugees with “as favourable
treatment as possible” in accessing the professions.393 The only concession
made by France was that whatever treatment was granted would “be in no case
inferior to the treatment afforded to foreigners generally.”394 This approach was
contrary to the advice of the Secretary-General, who had noted that granting
refugees only the same access to professions as aliens generally “would in practice
be of little help to refugees, since in point of fact access to the professions is
normally only accorded to foreigners – and even then with reservations – by virtue
of treaty provisions.”395 The International Refugee Organization also opposed the

391
Secretary-General, “Memorandum,” at 35–36.
392
The Secretary-General recognized that the alternative would be simply to grant refugees the
same treatment as afforded aliens generally, but warned against that approach: ibid. at 36.
393
France, “Draft Convention,” at 6–7.
394
Statement of Mr. Rain of France, UN Doc. E/AC.32/SR.13, Jan. 26, 1950, at 16.
395
Secretary-General, “Memorandum,” at 36.

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 998 6 r ights of r efugees l awfully staying

“aliens generally” standard, arguing that “[i]n countries where the rights of
aliens . . . depend on reciprocity arising out of treaty arrangements it is doubtful
that the formula as it now stands would ensure any rights for refugees”396 –
a concern borne out, for example, by Iran’s policy of limiting refugees to working
in the same, largely manual labor-focused and often dangerous, jobs as other non-
citizens.397
In what can only be described as an extraordinary contrast with discussion of
the appropriate contingent standard for access to wage-earning employment,398
no state representative at any stage of the drafting process advocated moving
beyond the baseline (“aliens generally”) standard of treatment. As the Chairman
of the Ad Hoc Committee observed, “there was no question of according
refugees the most favourable treatment given to foreigners by virtue of treaties,
but merely the most favourable treatment possible”399 – meaning that the
European Union’s failure to extend the special rights of EU-accredited profes-
sionals to refugees400 is not presumptively at odds with the Art. 19 duty. Much
less was there any interest in giving refugees the same rights as citizens to
practice a profession: the Conference of Plenipotentiaries even rejected an
Egyptian amendment that would have made explicit that refugees were not
entitled to access professions reserved for citizens on the grounds that “it
might be dangerous to refer to rights which could be covered by special
regulations . . . inasmuch as it might suggest to States the possibility of taking
such action in respect of refugees.”401 As the Belgian representative to the
Conference of Plenipotentiaries concluded, “the draft Convention gave refugees
[only] the status of aliens”402 with regard to the right to engage in professional
practice. The duty to assimilate refugees only to aliens generally requires,
however, that if access to professional practice is only formally reserved for
citizens (or subject to reciprocity arrangements) but in fact is generally granted
to non-citizens, such access must be extended also to refugees.403
On the other hand, the “treatment as favourable as possible” component of
Art. 19 does require state parties at least to give consideration in good faith to
the non-application to refugees of limits generally applied to aliens.404 This is,

396
United Nations, “Compilation of Comments,” at 39, 45. 397 See text at note 366.
398
See Chapter 6.1.1 at note 121.
399
Statement of the Chairman, Mr. Chance of Canada, UN Doc. E/AC.32/SR.13, Jan. 26,
1950, at 17.
400
See text at note 376.
401
Statement of Mr. Hoare of the United Kingdom, UN Doc. A/CONF.2/SR.9, July 6, 1951,
at 21.
402
Statement of Mr. Herment of Belgium, ibid. at 21. 403 See Chapter 3.2.1.
404
Ibid. at note 256. There is therefore “an obligation for states to make a positive effort to
minimize the restrictions imposed on refugees wishing to practice their profession”:
UNHCR Bureau for Europe, “Integration Rights and Practices with Regard to
Recognised Refugees in the Central European Countries,” (2000) 5(1) European Series
(UNHCR Bureau for Europe, “Integration Rights”), at 69.

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 6.2 professional practice 999

of course, only an obligation of process, not a duty of result405 – meaning that

Art. 19 provides no clear right of access to professional practice to refugees in
asylum states where only nationals (or privileged non-citizens) are authorized
to work as professionals.406 But the duty of states to give good faith consider-
ation to exemption of refugees from general constraints on the ability of non-
citizens to undertake professional work means that any application to refugees
of the rules applicable to non-citizens generally must be based on a decision
that is carefully reached and justified – calling into question, for example,
Jordan’s decision simply to extend to refugees the general bar on non-citizens
engaging in such professions as law and accounting407 and France’s refusal to
let refugees work as accountants or veterinarians.408 It might even be suggested
that Sudan’s formal recognition of the right of refugee professionals to work
knowing that other laws would deny them the freedom of movement needed
actually to undertake such professional work409 fails the “good faith” require-
ment. The bar for good faith consideration will, of course, be especially high
where, as in Turkey,410 refugees were in urgent need of medical assistance that
the host state did not provide them.411 And because it is a duty to consider the
question in good faith, even a real concern – such as South Africa’s laudable
policy not to encourage a brain drain of professionals from neighboring
states412 – must be implemented in a rational and proportionate way, recog-
nizing the real needs of refugee professionals left with no choice but to flee their
home countries. Decisions of the kind taken in England,413 Scotland,414 and
Sweden415 to ease or facilitate the ability of refugee professionals to work in
their fields of expertise via fast track or bridging programs, in contrast, exem-
plify not only good faith consideration of the refugee professionals’ plight, but
a smart and principled response to it.
The Refugee Convention provides no more than minimal relief from the
most common impediment faced by non-citizens wishing to engage in
405
As the Chinese representative insisted, “the provisions of article [19] as proposed by
France had been applied in China already. It had done so of its own free will, but would
hesitate to accept such provisions if they were imposed on it by a convention”: Statement
of Mr. Cha of China, UN Doc. E/AC.32/SR.13, Jan. 26, 1950, at 17.
406
It is therefore an overstatement to suggest that “refugees should be accorded a special
dispensation from the restrictions on employment often imposed on aliens, and granted in
principle the same rights as regards . . . liberal professions as permanent residents or
nationals”: R. da Costa, “Rights of Refugees in the Context of Integration: Legal Standards
and Recommendations,” UNHCR Legal and Protection Policy Research Series Doc.
POLAS/2006/02, June 2006 (da Costa, “Rights of Refugees in the Context of
Integration”), at 57.
407
See text at note 361. 408 See text at note 371. 409 See text at note 368.
410
See text at note 364.
411
Given the failure of the host states to provide medical attention in truly extreme cases, it is
also likely that Turkey breached Art. 12 of the Economic Covenant: see Chapter 4.4.3.
412
See text at note 362. 413 See text at note 388. 414 See text at note 387.
415
See text at note 386.

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 1000 6 righ t s of r e f uge es l aw f ul l y sta yin g

a profession, that being the need to meet often quite exacting standards for
licensing or accreditation.416 These rules are frequently administered by pro-
fessional associations authorized by the government to regulate access to
professional life. A non-citizen wishing to continue his or her professional
life in a new country may be required to meet a variety of standards, including
possession of particular academic qualifications, a positive assessment of
experience or standing in the applicant’s home country, and satisfactory
completion of a period of local training or testing417 – for example,
Belgium’s requirement of additional training before a professional may access
the job market,418 or the US insistence that refugee and other foreign doctors
undertake residencies before being allowed to practice.419
The drafters of the Refugee Convention recognized that not all accreditation
requirements were really designed to protect the public interest. Indeed, the
Chairman of the Ad Hoc Committee candidly conceded that “in the United
Kingdom and Canada liberal profession bodies admitted holders of local
diplomas only . . . [T]hat was because they wished to maintain a certain level
of tradition . . . [I]t was true, of course, that such a requirement reflected too
rigid a spirit of exclusiveness.”420 But in contrast to the approach taken to
wage-earning employment,421 the drafters showed no interest in exempting
refugees from even accreditation requirements designed simply to avoid com-
petition with domestic professionals.422 To the contrary, they made access to

416
“Given the difficulties usually faced by refugees in gaining access to the liberal professions
in their country of asylum, [Art. 19] is not considered particularly helpful, not least
because it sets a low minimum standard of treatment and leaves the recognition of their
qualifications at the discretion of the state concerned”: UNHCR Bureau for Europe,
“Integration Rights,” at 70.
417
“There is no denial of the right [to work] where a person does not satisfy the inherent
requirements of a job, or meet other objective criteria such as considerations of security”:
Saul, ICESCR Commentary, at 280. There is, however, some room for challenge since
“[e]ven if the regulation [regulating access to professional practice] is rational, if it is so
invasive that it constitutes a material barrier to the right to practise the profession, the
regulation will be an infringement of that right”: Jayawickrama, Judicial Application, at
1011.
418
See text at note 384. 419 See text at note 380.
420
Statement of the Chairman, Mr. Chance of Canada, UN Doc. E/AC.32/SR.13, Jan. 26,
1950, at 16.
421
See Chapter 6.1 at note 100 ff.
422
“The Italian Government could not agree to a clause which might aggravate the existing
internal situation caused by over-population and unemployment”: Statement of
Mr. Theodoli of Italy, UN Doc. E/AC.32/SR.37, Aug. 16, 1950, at 20. Earlier, the French
representative had similarly remarked “that the question gave rise to grave difficulties in
France where there was a considerable number of refugees belonging to the liberal
professions . . . It should be understood that there were two types of interests: on the
one hand, national interests which tended to reserve for some nationals exclusively, or to
a very large extent, the exercise of liberal professions; on the other hand, the material
interests of persons exercising those professions who were stubbornly defending their

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 6. 2 pr of e ssion al pr ac tic e 1001

Art. 19 rights contingent on the refugee possessing a “diploma[] recognized by

the competent authorities of [the host] state,”423 thereby sanctioning the
practice in many states of leaving such decisions to the professional bodies
themselves. More generally, they adopted language under which Art. 19 rights
inhere in “refugees . . . desirous of practising a liberal profession” in order to
signal that the mere possession of formal qualifications could under no cir-
cumstance give rise to an international legal entitlement to engage in profes-
sional life:424
[T]he form of words was vague, but . . . it should remain so. The
Committee was faced with two separate considerations: on the one hand,
the recognition of diplomas and, on the other, the exercise of the profes-
sions. In Belgium a foreigner could practise medicine if he held a Belgian
diploma or a diploma recognized as equivalent; on the other hand, no
foreigner, no matter what his diploma, was allowed to practise as a lawyer.

positions. It was the Committee’s duty to see that States accorded refugees the most
favourable treatment possible provided it did not conflict with national interests”:
Statement of Mr. Rain of France, UN Doc. E/AC.32/SR.13, Jan. 26, 1950, at 17–18.
423
It was clarified, however, that the refugee need not arrive in the asylum state with
a relevant diploma in order to benefit from Art. 19, but could invoke his or her rights
once in possession of a diploma acquired in the host country or elsewhere: Statement of
Mr. Cuvelier of Belgium, UN Doc. E/AC.32/SR.13, Jan. 26, 1950, at 16. The duty of state
parties under Art. 25 (see Chapter 4.10) may also be invoked to secure the assistance of the
asylum state to “provide refugees with facilitated access to the liberal professions through
for example the provision of documents verifying education and qualifications”: UNHCR,
“Draft comments on the draft General Comment on the Right to Just and Favourable
Conditions of Work,” May 2015, at [17]. This duty is important because refugees “may
have had to leave their personal belongings and papers behind. There may be no way to
communicate safely with the institution(s) where their qualifications were earned, or
relevant files and archives may have been destroyed in acts of war or violence”:
UNHCR, “Note on the Integration of Refugees in the European Union,” May 2007, at [27].
424
The UNHCR’s Executive Committee accordingly employed hortatory language in which
it “encourages States, wherever possible, to recognize the equivalency of academic, profes-
sional and vocational diplomas, certificates and degrees acquired by refugees prior to entry
into the host country”: UNHCR Executive Committee Conclusion No. 104, “Local
Integration” (2005), at [(m)(iii)]. As such, it is not correct that the “shall accord” language
of Art. 19 gives refugees “the right to have their diplomas recognized and to practice in the
liberal professions. This is not a discretionary provision, but a binding treaty obligation”:
A. Edwards, “Article 19,” in A. Zimmermann ed., The 1951 Convention Relating to the
Status of Refugees and its 1967 Protocol: A Commentary 983 (2011) (Edwards, “Article
19”), at 987; see also da Costa, “Rights of Refugees in the Context of Integration,” at 55
(“[A] diploma may be required and must, in that case, be recognized by the receiving
State”). To the contrary, the object of the “shall accord” language is simply “treatment as
favourable as possible,” not a duty of result. In light of its object and purpose, Art. 19
grants refugees a right to the assessment in good faith of their professional qualifications,
but not a right to practice a liberal profession as such – as Edwards herself later acknow-
ledges: ibid. at 989.

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 1002 6 rig ht s of re f uge e s l aw f ul l y st ay ing

It would be impossible therefore to adopt a definite form of words, as it

could not be applied to all cases.425
At best, some value was secured by the obligation to assimilate refugees to
aliens generally “in the same circumstances,” which requires those undertaking an
examination of professional qualifications to exempt refugees from general
requirements which the refugee’s particular circumstances render effectively
insurmountable.426 The duty to exempt refugees from general requirements
which the particular circumstances of refugeehood make unrealistic means that
a state which ordinarily requires proof that a non-citizen has been licensed in his
or her discipline in the country of origin would be required to waive this
requirement in the case of a refugee forced to flee from a state in which no system
of professional regulation exists, or where professional registration was not open
to the refugee for reasons related to his or her need for protection.427 It thus raises
questions about the legality of Italy’s requirement of original professional certifi-
cates from refugees,428 and even more clearly about Hungary’s insistence on
a high level of fluency in the Hungarian language for any form of professional
accreditation.429 In contrast, the European Union’s decision to grant refugee
professionals equality of treatment in procedures for the recognition of credentials
as well as assistance where relevant documentation is lacking,430 Germany’s
innovative system for the alternative assessment of professional qualifications
for refugees and others lacking documents by means of assessment tests, expert
interviews, and practical or theoretical tests,431 and Norway’s centralized creden-
tial assessment program that reconstructs refugees’ professional backgrounds and
qualifications432 are examples of action that is very much in accord with the spirit
of the “in the same circumstances” dispensation required by Art. 19.
As if these several constraints were not enough, it was ultimately determined
that Art. 19 could not be invoked by a refugee until he or she is “lawfully
staying” in the territory of a state party. Interestingly, neither of the original
drafts proposed any delay in the right to access professional practice based on
attachment.433 The report of the first session of the Ad Hoc Committee,
425
Statement of Mr. Cuvelier of Belgium, ibid. at 18. The Chairman of the Ad Hoc Committee
immediately concurred, noting that he “also thought that it was impossible to adopt
a more definite formula; the High Contracting Parties should simply be invited to do
their best to make the most liberal provisions possible”: Statement of the Chairman,
Mr. Chance of Canada, ibid.
426
See Chapter 3.2.3.
427
UNHCR has sensibly encouraged states to employ “flexible assessment measures to
refugee qualifications”: UNHCR, “Note on the Integration of Refugees in the European
Union,” May 2007, at [30].
428
See text at note 383. 429 See text at note 385. 430 See text at note 381.
431
See text at note 389. 432 See text at note 390.
433
The drafts prepared by the Secretary-General and by France simply granted Art. 19 rights
to “refugees” without qualification: Secretary-General, “Memorandum,” at 35; France,
“Draft Convention,” at 6.

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 6 .2 pr of e ssion a l p rac tic e 1003

however, limited professional practice to refugees “lawfully resident in their

territory.”434 The only substantive debate on this question occurred at the
Committee’s second session, where it was provisionally agreed to revise the
level of attachment downward simply to “lawfully in their territory”435 in order
to ensure that the right could be invoked by “persons entering a territory even
for a few hours, provided that they had been duly authorized to enter.”436 As
the American representative insisted, “his delegation wished to cover all
refugees for however short a time they were lawfully in a territory.”437 Under
this approach, Art. 19 could have been invoked, for example, by “a German
refugee lawyer who periodically traveled from Sweden to Denmark to give
consultations in a hotel for a period of three hours.”438
In the end, however, the more restrictive view prevailed. While not formally
debated there, the Conference of Plenipotentiaries reversed the Ad Hoc
Committee’s approach, deciding that Art. 19 rights would accrue only once
a refugee is “lawfully staying” in a state party. In adopting this level of attach-
ment, the Conference was probably influenced by the French view that the
purpose of Art. 19 should be “to protect refugees residing in foreign territory,
not merely staying there for a few hours.”439 But the more exacting level of
attachment adopted allows the right of professional practice to be denied not
only to refugees present on a short-term basis, but also to most refugees
awaiting the results of their refugee status claim and to refugees present in
a state which opts not to assess refugee status,440 at least until an ongoing
presence is established in practical terms by the passage of time.441
It is therefore difficult to see Art. 19 as having any significant positive value
for refugees. If no specific rule on access to the liberal professions had been
included in the Refugee Convention, the ability of refugees to work in
a professional capacity would presumably have been regulated by either the
rule on self-employment, or by that dealing with wage-earning employment.
Either of these approaches would have been more beneficial to refugees. Under
Art. 18’s provisions on self-employment, the refugee professional would have
received no better standard of treatment than that now granted by Art. 19
(“treatment as favourable as possible and, in any event, not less favourable than
that accorded to aliens generally in the same circumstances”), but that right
434
Ad Hoc Committee, “First Session Report,” at Annex I.
435
Ad Hoc Committee, “Second Session Report,” at Annex I.
436
Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.41, Aug. 23, 1950, at
14. The Chairman gave the example of “a person travelling through a country on his way
back to his own country” who would be lawfully in the country of transit, and therefore
entitled to exercise his or her profession there: Statement of the Chairman, Mr. Larsen of
Denmark, ibid. at 15.
437
Statement of Mr. Henkin of the United States, ibid. at 15.
438
Statement of the Chairman, Mr. Larsen of Denmark, ibid. at 18.
439
Statement of Mr. Juvigny of France, ibid. at 15. 440 See Chapter 3.1.3.
441
See Chapter 3.1.4 at note 211.

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 1004 6 rig ht s of re f uge es l aw f ul l y sta yin g

would have accrued at an earlier point in time, namely when the refugee was
simply “lawfully in” (rather than “lawfully staying” in) a state party.442 If, on
the other hand, the refugee professional’s right to work had been governed by
Art. 17’s general rules on wage-earning employment, he or she would have
been faced with the same contingent standard as that which governs Art. 19
(“lawfully staying”), but once qualified he or she would at least have been
entitled to a higher standard of treatment, namely assimilation to the nationals
of most-favored countries.443 Under Art. 19, in contrast, the refugee profes-
sional is faced with the worst of both worlds: the point at which entitlement
accrues is significantly delayed, and the right which is ultimately received is of
little value. In pith and substance, then, Art. 19 is most appropriately under-
stood not so much as a source of refugee entitlement, but as a clawback
provision444 directed to a subset of refugees who would otherwise have been
able to invoke the more generous provisions of either Art. 17 on wage-earning
employment or Art. 18 on self-employment.445
The disinterest of the drafters in committing themselves to the mean-
ingful enfranchisement of refugee professionals is perhaps most clear from
the second paragraph of Art. 19, requiring governments to “use their best
endeavours”446 to secure the resettlement of professionally qualified refu-
gees in affiliated territories. This approach seems to have been considered
something of a “win–win” approach for both refugees447 and their host
countries:

442
See Chapter 5.3. 443 See Chapter 6.1.
444
Edwards’ contention that “there appears to have been no intention on the part of the
drafters of Art. 19 for it to operate in the manner suggested by Hathaway” (Edwards,
“Article 19,” at 985) ignores the decisions taken by the drafters both to refuse to adopt the
Secretary-General’s “most favoured foreigner” contingent standard (see text at note 392)
that applies to wage-earning employment and to limit the right to practice a profession to
refugees “lawfully staying” rather than simply to refugees “in” their territory as governs the
right to self-employment. In any event, the point made here is not that there is evidence of
mala fides, but simply that the article as adopted clearly disadvantages refugee profes-
sionals relative to the treatment they would have received under either of the other two
Convention provisions on work rights (and that would have applied absent Art. 19) and is
therefore in substance a clawback of rights that would otherwise have been owed.
445
Robinson reaches a comparable conclusion, at least in part. “It will make little difference
(except for the diploma) whether a person is labelled a ‘professional’ or ‘self-employed’
because the treatment is the same. But it would make a considerable difference if he were
classified as wage-earner instead of professional or vice versa”: Robinson, History, at 118.
The first part of Robinson’s conclusion is, for reasons set out above, not accurate: the fact
that self-employment rights accrue at a lower level of attachment than does the right to
practice a liberal profession is a significant difference in many cases, e.g. refugees awaiting
the results of status verification or present in a country that does not formally verify
refugee status.
446
“It is an obligation of process, rather than result”: Edwards, “Article 19,” at 989.
447
Edwards is, however, right to observe that “it is noticeable that this provision does not
appear to provide for any degree of choice or autonomy on the part of the refugee,” though

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 6 .2 pr of e ssion a l p rac tic e 1005

Many countries were under pressure not to admit to their metropolitan

territories refugees who might compete with professional workers resident
there. In some colonial areas, however, there was an urgent need for qualified
persons, and nationals of the metropolitan country were often reluctant to
respond to that need. Colonial Governments which would not be willing to
give refugees the opportunity of gainful employment in their profession in the
metropolitan country might be quite prepared to send them into overseas
territories.448
While the drafters rejected both a British effort to delete the paragraph
altogether449 and a French effort to frame Art. 19 as no more than vaguely
hortatory,450 not even this part of Art. 19 provides professional refugees with
any significant benefit.
First, the duty under Art. 19(2) is really only to do whatever can already be
done under the asylum country’s own laws and policies.451 While even the
Secretary-General’s draft did not attempt to require resettlement other than in
accordance with national laws,452 the British government persuaded govern-
ments to narrow the duty to require only such efforts as are “consistent[] with
their laws and constitutional practices.”453 This language was further modified
to refer simply to consistency with national laws and “constitutions” in order to
make clear that no effort at odds with “constitutional usage”454 would be

subsequently codified human rights norms would likely require the refugee’s consent: ibid.
at 990.
448
Statement of Mr. Robinson of Israel, UN Doc. E/AC.32/SR.14, Jan. 26, 1950, at 3. See also
Statement of Mr. Guerreiro of Brazil, ibid., who “agreed that the need for such qualified
workers justified the settlement in colonial areas of refugees practising liberal professions.”
449
The British concern was that the duty amounted to an intrusion on the autonomy of
subordinate territories: Statements of Sir Leslie Brass of the United Kingdom, UN Doc. E/
AC.32/SR.13, Jan. 26, 1950, at 19; and at UN Doc. E/AC.32/SR.14, Jan. 26, 1950, at 2.
450
The original language of the Secretary-General’s proposal (Secretary-General,
“Memorandum,” at 35) required governments to “promote” resettlement, while a much
softer approach was taken in the French draft (France, “Draft Convention,” at 7), namely
“as far as possible [to] facilitate” resettlement. The United States then advanced an intermedi-
ate view, under which the duty would have been to “encourage” resettlement: Statement of
Mr. Henkin of the United States, UN Doc. E/AC.32/SR.13, Jan. 26, 1950, at 20. While this
proposal was adopted by the Ad Hoc Committee, ibid., the language used by the Ad Hoc
Committee is based on the subsequent suggestion of the representative of the United
Kingdom that governments commit themselves to “use their best endeavours . . . to secure
the settlement of such refugees”: Statement of Sir Leslie Brass of the United Kingdom, UN
Doc. E/AC.32/SR.14, Jan. 26, 1950, at 2, adopted by the Committee, ibid. at 4.
451
“It imposes upon [states] the moral obligation to try to secure such employment but only
within the limits of existing legislation and the special rules governing the rights of the
Contracting State in the dependent territory”: Robinson, History, at 118.
452
Secretary-General, “Memorandum,” at 35.
453
Statement of Sir Leslie Brass of the United Kingdom, UN Doc. E/AC.32/SR.14, Jan. 26,
1950, at 2.
454
Statement of Mr. Cuvelier of Belgium, ibid. at 3. This understanding was agreed to by the
proponent of the amendment, Sir Leslie Brass of the United Kingdom, ibid. at 4.

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expected. These changes were based on concern that “care should be taken not
to offend the local authorities”455 who in most cases were said to enjoy
substantial autonomy in making immigration decisions. In the end, the duty
of state parties under Art. 19(2) is really only to “do their best to convince the
administrations of overseas territories that it [is] in their interest to attract
refugees belonging to the liberal professions.”456
Second, this duty to attempt to persuade does not apply to all subordinate
territories of a state party. The broad approach taken by the Ad Hoc
Committee,457 based on the Secretary-General’s rather expansive list of the
entities which state parties should seek to influence,458 was significantly con-
strained by the Conference of Plenipotentiaries. In keeping with the under-
standable concern not to infringe the autonomy of administrators in
subordinate territories, Art. 19(2) was reframed to refer only to a duty to
exercise influence in relation to “territories for whose international relations
[the state party is] responsible.”459 Even this formula was narrowed, based on
British unwillingness to promote the establishment of professional refugees in
subordinate territories located near to the state party, and from which they
might pose a competitive threat to nationals. Specifically, the British represen-
tative objected to any duty which might see more refugee professionals in
“adjacent territories, like the Channel Islands, where the settlement of [profes-
sional] refugees must of necessity be governed by the same conditions as those
obtaining in the United Kingdom itself.”460 The text as agreed therefore sets no
duty to promote the settlement of refugee professionals in even dependent
territories which might broadly be considered part of the state party’s “metro-
politan territory.”
In sum, and despite its recent characterization by the UK Supreme Court as
an “exceptional privilege,”461 Art. 19(2) is really no more than a minimalist
form of compensation for the exclusion of refugee professionals from the
benefit of the usual rules on either self-employment or wage-earning employ-
ment. It imposes only a duty to exercise suasion in line with existing national
laws and constitutional usage, taking account in particular of the largely
autonomous authority which many dependent territories enjoy over
455
Statement of Mr. Rain of France, UN Doc. E/AC.32/SR.13, Jan. 26, 1950, at 20. See also
Statement of Sir Leslie Brass of the United Kingdom, ibid. at 19.
456
Statement of Mr. Rain of France, ibid. at 20.
457
The obligation of states was to encourage the resettlement of professional refugees to
“colonies, protectorates or in Trust Territories under their administration”: Ad Hoc
Committee, “Second Session Report,” at 20.
458
The original proposal extended to “colonies, protectorates and overseas territories, and . . .
mandated or trust territories”: Secretary-General, “Memorandum,” at 35.
459
Statement of Mr. Rochefort of France, UN Doc. A/CONF.2/SR.34, July 25, 1951, at 24–25.
460
Statement of Mr. Hoare of the United Kingdom, ibid. at 25.
461
R (Tag Eldin Ramadan Bashir) v. Secretary of State for the Home Department, [2018]
UKSC 45 (UK SC, July 30, 2018), at [86].

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 6 .2 p rof e ssio na l p rac t ice 1007

immigration. Even that duty of process applies only to those dependent

territories whose international relations are under the authority of the state
party, and which are not sufficiently proximate to the main territory of the state
party to be considered part of its metropolitan territory.
There are potentially three means by which the rather bleak implications of
Art. 19 may be challenged, or at least avoided.
First, the limits of Art. 19 do not speak to all refugee professionals, but only
to refugees who wish to practice a “liberal profession.” While the notion of
a “profession” as a branch of work is itself rather vague,462 there is even less
consensus on which professions may be said to be “liberal.” Under the
Secretary-General’s proposal, for example, the term included, at a minimum,
“qualified and experienced scientists, engineers, architects and doctors.”463
The drafters referred to lawyers and medical doctors as examples of persons
who exercise a liberal profession,464 but otherwise did not elucidate the term.
Robinson, Weis, and Grahl-Madsen agree on a list of six liberal professions –
physicians, dentists, veterinarians, lawyers, engineers, and architects – but
otherwise disagree on the ambit of the term.465
As a general principle, Grahl-Madsen suggests a fairly generous under-
standing of a liberal profession, focusing on two basic criteria. First,
a “profession” is a type of work which requires formal qualification “normally
confirmed by a diploma from a university, or a similar institution, or a licence
from a State agency, a chartered society or some other legally competent body
allowing him to practise.”466 Second, a “liberal” profession is one in which the
individual “acts on his own, not as an agent of the State or as a salaried
employee.”467 As he clearly insists, it would not make sense to classify an
individual as a member of a liberal profession if, despite the possession of
relevant formal qualifications, the work he or she proposes to undertake is not
characterized by the independence of action which marks a liberal profession.
462
For example, a profession may be defined simply as “a paid occupation, especially one
involving training and a formal qualification”: Concise Oxford Dictionary 11141 (10th edn,
2002).
463
Secretary-General, “Memorandum,” at 36.
464
See e.g. Statements of Mr. Cha of China, UN Doc. E/AC.32/SR.13, Jan. 26, 1950, at 17;
Mr. Cuvelier of Belgium, ibid. at 18; and the Chairman, Mr. Larsen of Denmark, UN Doc.
E/AC.32/SR.41, Aug. 23, 1950, at 18.
465
Specifically, Robinson and Weis would add pharmacists and artists to the list of liberal
professions, in at least some circumstances; Weis and Grahl-Madsen would include
accountants; Robinson alone would include teachers; and Grahl-Madsen alone would
treat interpreters and translators as members of a liberal profession: Robinson, History, at
118; Weis, Travaux, at 158; and Grahl-Madsen, Commentary, at 78. Weis would also
include the salaried assistants to members of a liberal profession as liberal professionals
themselves, while Grahl-Madsen would do so only if there are certain qualifications set by
the state for undertaking such work: Weis, Travaux, at 158; Grahl-Madsen, Commentary,
at 78–79.
466
Grahl-Madsen, Commentary, at 78. 467 Ibid.

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Thus, “certain holders of academic diplomas are excluded from the application
of the term, e.g. the clergy, judges, teachers, [and] scientists.”468
Grahl-Madsen’s relatively broad definition of a liberal profession was likely
inspired by his desire to read Art. 19 in a way that would allow professional
refugees “to receive the benefit of Article 19.”469 However, since Art. 19 is more
accurately understood not as conferring a substantive benefit, but rather as
limiting access to more generous rights which would otherwise accrue under
Arts. 17 or 18, the human rights context of the Refugee Convention actually
argues against giving this exception a broad reading.
Helpful guidance on a somewhat more constrained approach to the definition
of a “liberal profession” has been provided in a leading tax law decision of the
European Court of Justice. In the Court’s view, a liberal profession is an activity
(1) of a marked intellectual character, (2) requiring a high-level qualification, (3)
normally subject to clear and strict professional regulation, and (4) incorporat-
ing a personal element and a significant level of independence.470 An expert
study commissioned by the European Economic and Social Committee in
contrast found that there was not a sufficient foundation for the European
Court’s third criterion (“clear and strict professional regulation”),471 and offered
its own five-factor framework definition of a liberal profession as focusing on
the public interest aspect of the service; the professionally and economically
independent performance of tasks; the independent and personal execution
of services; the existence of a special relationship of trust between client and
contractor; and the restraint of the profit-maximisation motive.472
Perhaps the most straightforward definition – taking account of the guidance of
the European Court but seeking to apply its core concepts to a broader context –
is codified in the European Commission’s view that a liberal profession is one
“practised on the basis of relevant professional qualifications in a personal,
responsible and professionally independent capacity by those providing intellec-
tual and conceptual services in the interest of the client and the public.”473

468
Ibid. 469 Ibid. at 79.
470
Urbing-Adam v. Administration de l’Enregistrement et des Domaines, Dec. No. C-267/99
(CJEU, Oct. 11, 2001).
471
European Centre for Liberal Professions, “The State of Liberal Professions Concerning
their Functions and Relevance to European Civil Society,” Report for the European
Economic and Social Committee (2014), at 10.
472
Ibid. at 10. Applying this standard and seeking to identify occupations “that counted
among the liberal professions in the vast majority of [EU] Member States and were capable
of being subsumed under the ECJ’s definition without difficulty,” the Report suggests that
eight “typical examples” of a liberal profession would be “lawyers, tax advisors, auditors,
notaries, engineers, architects, dentists, and pharmacists”: ibid. at 11.
473
Directive 2013/55/EU of the European Parliament and of the Council of
20 November 2013 amending Directive 2005/36/EC on the recognition of professional
qualifications, at Preamble [43].

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 6.2 p rof e ss ion al p ra ct ice 1009

To the extent that reasoning of this kind is adopted, it may help limit the risk
that any form of work requiring advanced education and involving largely
independent activity is, for those reasons alone, deemed a liberal profession,
thereby depriving the refugee of the more favorable treatment set out in Arts.
17 and 18. For example, the refusal in parts of the United States474 to hire
refugees and other non-citizens as teachers could not, on this reading, be
justified on the basis of Art. 19. As wage-earners, refugees hired as teachers
would be entitled to benefit from the same treatment afforded most-favored
foreigners, including the citizens of partner states.475
Second, given the recent evolution in thinking that the right to work under
the Economic Covenant476 “encompasses all forms of work, [including] inde-
pendent work”477 and the determination that the right to work must be
guaranteed to “everyone,”478 including non-citizens,479 it ought now in prin-
ciple to be possible for refugees to undertake professional work immediately
upon arrival in the asylum country on the same basis as nationals.480 But as
described in detail above,481 several fundamental constraints – that a state will
not breach its duties if the differential treatment of refugees or non-citizens
generally is deemed “objective and reasonable” and thus non-discriminatory;
that the Covenant requires only “progressive implementation” of the right, not
its immediate application in full; and especially that the less developed coun-
tries where most refugees live may elect not to extend work rights to non-
citizens – likely limit the ability of Art. 6 of the Economic Covenant to
overcome the shortcomings of Art. 19. It is nonetheless true that the “core
obligation” under Art. 6 of the Economic Covenant to adopt and implement an
employment plan of action that “target[s] disadvantaged and marginalized
individuals and groups in particular”482 may provide at least a partial answer to
the conundrum of refugee professionals in Australia who, despite benefitting
from a formal entitlement to work as professionals, continue to face the

474
See text at note 372. 475 See Chapter 6.1. 476 Ibid. at note 42.
477
UN Committee on Economic and Social Rights, “General Comment No. 18: The Right to
Work,” UN Doc. E/C.12/GC/18, Feb. 6, 2006, at [6]. Thus, “Article 6 defines the right to
work in a general and non-exhaustive manner”: Saul, ICESCR Commentary, at 279.
478
UN Committee on Economic, Social and Cultural Rights, “General Comment No. 20:
Non-discrimination in Economic, Social and Cultural Rights,” UN Doc. E/C.12/GC/20,
July 2, 2009, at [30].
479
UN Committee on Economic, Social and Cultural Rights, “Duties of States towards
Refugees and Migrants under the International Covenant on Economic, Social and
Cultural Rights,” UN Doc. E/C.12/2017/1, Mar. 13, 2017, at [3].
480
“By contrast with the Refugee Convention, the Covenant protects all persons within
a state’s territory or jurisdiction, whether lawfully staying or not”: Mathew, Asylum and
Employment, at 115.
481
See Chapter 6.1 at notes 61–95.
482
UN Committee on Economic and Social Rights, “General Comment No. 18: The Right to
Work,” UN Doc. E/C.12/GC/18, Feb. 6, 2006, at [31(c)].

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practical challenge of being passed over by those with Australian work

experience.483
Third and likely most promising, even if the work which the refugee wishes
to pursue cannot be classified as other than a liberal profession nor be over-
come by reliance on Art. 6 of the Economic Covenant, domestic laws or
practices based on Art. 19 might be argued to breach the general duty of non-
discrimination set by Art. 26 of the Civil and Political Covenant.484 Art. 26
speaks to distinctions based on any form of status, and governs in any field
regulated (directly or indirectly) by public authorities.485 Its guarantee of equal
protection of the law essentially requires that any distinction in the allocation
of rights based on status be grounded in reasonable criteria. Thus, unless it can
be shown that it is reasonable to disfranchise refugees who are liberal profes-
sionals relative to all other refugees,486 the guarantee of equal protection of the
law should operate to invalidate their exclusion from the more generous rules
on access to work set by Arts. 17 and 18.487
It would likely be difficult for a government to show the reasonableness of
this sort of exclusion. As Robinson warned, “[t]here is no clear-cut distinction
between certain liberal professions (for instance,