Redundant or Essential? How Politics Shaped the Outcome of the 1967 Protocol

The 1967 Protocol Relating to the Status of Refugees has beendescribed as an unnecessary addendum to the 1951 ConventionRelating to the Status of Refugees. However, if the 1967 Protocolwas superfluous, why did the United Nations High Commissionerfor Refugees in the early 1960s insist on its development? Thisarticle seeks to establish that the 1967 Protocol was originallyintended to encompass the broader concerns of African and Asianstates concerning refugee populations in their region. However,the political influence upon the development of internationalrefugee law radically altered the UNHCR's endeavour to makethe 1951 Convention universally accessible.     

The Legal Status of Afghan Refugees in Pakistan, a Story of Eight Agreements and Two Suppressed Premises

Over 25 per cent of present day refugees enjoy asylum in Pakistan,most of them having been there for more than a quarter of acentury. Pakistan is not, however, a party to either the 1951Convention relating to the Status of Refugees or the 1967 Protocolrelating to the Status of Refugees. The legal status of theAfghan refugees it hosts is therefore not a foregone conclusion,even though they were considered to be refugees on a prima faciebasis during the first two decades of their exile in Pakistan.This article identifies the legal status of the Afghan refugeeson the basis of a series of agreements Pakistan concluded withUNHCR and also occasionally with Afghanistan. By virtue of thelast of the series of agreements, Afghan refugees can returnto Afghanistan under a UNHCR-assisted voluntary repatriationprogramme until December 2009. In view of the fact that allAfghans have been granted leave to stay in Pakistan until thesame date, many are expected to stay in Pakistan rather thanreturn with the assistance of UNHCR. Unlike the preceding agreements,the last one does not address the fate of those who will stillbe in Pakistan upon completion of the voluntary repatriationprogramme. It seems therefore imperative to identify the legalstatus and corresponding entitlements of the Afghan refugees.It is argued that the prima facie recognition of refugee statuscan be sustained on the basis of the agreements referred to.In addition it is argued that the current ‘profiling’exercise of UNHCR, even while presumably beneficial for themost vulnerable refugees, is irreconcilable with the statusand entitlements of the Afghan refugees, and the same holdstrue with respect to the usual practice of ‘screening’those refugees who have opted not to return under a voluntaryrepatriation programme. An alternative that would be reconcilableis a collective cessation of refugee status if and when thesituation in the country of origin so warrants, provided individualrefugees may contest this.     

Human Rights, Refugees, and The Right 'To Enjoy' Asylum

Increasingly hard-line and restrictive asylum policies and practicesof many governments call into question the scope of protectionsoffered by the 1951 Convention relating to the Status of Refugees.Has the focus on the 1951 Convention been to the detriment andsubordination of other rights and standards of treatment owedto refugees and asylum-seekers under international human rightslaw? Which standard applies in the event that there is a clashor inconsistency between the two bodies of law? In analysingthe interface between international refugee law and internationalhuman rights law, this article looks at the right to familylife and the right to work. Through this examination, contentand meaning is offered to the almost forgotten component ofthe right ‘to enjoy’ asylum in Article 14(1) ofthe Universal Declaration of Human Rights 1948.     

The UNHCR's Guidelines on Human Trafficking

In April 2006 the UNHCR published Guidelines on the applicationof the Refugees Convention to people who have been trafficked.While there is little doubt that trafficked people are subjectedto serious violations of their basic rights and interests, theapplicability of the Convention is problematic because theydo not fit easily into any of the categories recognised by theConvention as giving rise to an entitlement to refugee status.The Guidelines adopt the definition of trafficking containedin the Palermo Protocol to the UN Convention on TransnationalOrganised Crime 2000. The various elements of the refugee definitionare then analysed for their relevance to trafficking. The Guidelinesshow that the Refugees Convention may be applicable, but inlimited cases, particularly through the possibility of victimsof trafficking being members of a particular social group.     

Rohingya Boat Refugees at Bay of Bengal and Obligations of the South East Asian States Under Soft Law

Liverpool Law Review - The 1951 Refugee Convention and the 1967 Protocol are the only binding international instruments under which the parties of the instruments agree to protect refugees....     

Examining Sexual Violence in the Military Within the Context of Eritrean Asylum Claims Presented in Norway

Discussion of rape by soldiers as a form of persecution haslargely been directed towards the context of war or actual conflict.Nevertheless, there is a need for attention to be directed towardsthe phenomenon of rape within the military in the post-conflictperiod. This article discusses asylum claims presented in Norwayby Eritrean female soldiers claiming risk of persecution inthe form of sexual violence, rape, or torture within the military.First, presentation is made of the history of Eritrean women'sparticipation in the war of independence and the ensuing politicaland legislative gains won at the end of the war against Ethiopia.Review of Eritrea's report and responses to the Committee onthe Elimination of Discrimination Against Women (CEDAW) reveala state of backlash against women in the post-conflict period.Second, examination of how rape within the military and desertionmay fall under the criteria of the definition of a refugee accordingthe 1951 Convention on the Status of Refugees is pursued. Comparisonis drawn to instances of rape of women soldiers in the US andIsrael, as well as sexual violence by United Nations Missionin Ethiopia and Eritrea (UNMEE) peacekeepers, revealing commonchallenges affecting prevention and protection strategies. Third,a comparative review is conducted of evidentiary standards inorder to highlight the importance of maintaining a flexibleapproach responsive to the special circumstances of sexual violence.The Norwegian practice indicated a tendency to provide protectionfor compassionate grounds or humanitarian protection, ratherthan asylum. This resulted in non-recognition of the legitimacyof claims based on gender related persecution as requiring legalprotection under the 1951 Convention on the Status of Refugees.     

The Implications of the ASLEF Case

The decision of the European Court of Human Rights in ASLEFv United Kingdom (27 February 2007) will require the governmentto re-visit the law relating to the right of trade unions toexclude and expel individuals because of their membership ofpolitical organisations perceived by trade unions to be hostileto their interests. It is now clear—as was pointed outat the time—that the changes made by the Employment RelationsAct 2004 do not go far enough to meet obligations under theEuropean Convention on Human Rights (ECHR). However, the casealso raises much wider questions about the compatibility ofother statutory restraints on trade union autonomy with Article11 of the ECHR, notably ss 64–67 (on unjustifiable discipline)and 174–177 (on exclusion and expulsion as a whole, andnot only the measures relating to membership of hostile politicalparties). This article considers both the immediate and thewider implications of the ASLEF decision for British trade unionlaw, in the context of what appears to be a greater willingnessof the Strasbourg Court to listen more carefully to trade uniongrievances than in the past. The article also draws attentionto the role of litigation as a trade union strategy to recoverlost rights, and again emphasises the importance of InternationalLabour Organisation Convention 87 and the Council of Europe'sSocial Charter of 1961 (as well as the jurisprudence thereunder)as important sources in the construction of the ECHR, Article11.     

International Law and Detention of US Asylum Seekers: Contrasting Matter of D-J- with the United Nations Refugee Convention

US refugee law reflects an ever-increasing conception that theapplication of international standards would constitute an unacceptablerisk to national security. CSR Article 31(2)’s requirementthat refugees ‘shall not’ be detained unless ‘necessary’appears among the chief casualties of such suspicions. US jurisprudenceremains strikingly devoid of reference to Article 31, and 2003’sMatter of D-J- is a prime example. D-J- was an administrativedecision in which the US Attorney General held that nationalsecurity required all US asylum seekers who successfully arrivevia boat must be subject to mandatory detention throughout thecourse of removal proceedings. Despite US accession to the Protocol,Article 31(2) was not mentioned. This article explores what might have happened to D-J- if theRefugee Convention had indeed been applied to his case. Utilizingthe international methodology for treaty interpretation, itapplies Article 31(2) to various aspects of the Attorney General'sdecision. Part 2 argues that under the Supreme Court's CharmingBetsy rule, statutory discretion to detain must be interpretedconsistently with US international obligations. Part 3 concludesthat Article 31(2) of the Refugee Convention grants asylum seekersa right to release whenever their detention is not ‘necessary’.Part 4 proposes a three-part ‘pyramid’ approachto explain the elemental phases of the decision to detain anasylum seeker and examines necessity at each stage. Finally,Part 5 discusses Article 31(2)’s implications regardingevidence and proportion. The premise throughout is that, hadit been applied, the Refugee Convention could have protectedthe interests of both D-J- and ‘national security’.     

Fear of lack of adequate medical care not well-founded fear of persecution

The Federal Court-Trial Division refused to set aside the Immigration and Refugee Board's (IRB) decision that a refugee claimant was not a Convention refugee because she had not proven a well-founded fear of persecution based on her HIV status or AIDS diagnosis. The court emphasized that the fear of a lack of adequate medical treatment, without a clear link to a ground under the United Nations Convention relating to the Status of Refugees, does not constitute a well-founded fear of persecution.     

Trade marks are 'possessions'--but applications are not (yet)

In its decision of 11 October 2005 the European Court of HumanRights (ECHR) ruled that a registered trade mark was a ‘possession’within the meaning of Article 1 of the First Protocol to theEuropean Convention on Human Rights. The ECHR failed, however,to extend this level of protection to the particular trade markapplication at issue, thereby leaving the protection of intellectualproperty rights as fundamental rights somewhat incomplete forthe time being.     

EU Refugee Qualification Directive: a Brave New World?

This article aims to map some of the major implications forasylum–related law in Europe of the Refugee QualificationDirective, which twenty-four EU Member States were requiredto implement by 10 October 2006. It seeks to build on importantstudies of the Directive completed by, among others, Hemme Battjes,in his book European Asylum Law and International Law, Nijhoff2006, and Jane McAdam, in her book Complementary Protectionin International Refugee Law, OUP 2007, albeit it takes a differentview of some key questions. Part 2 deals with the impact of the Directive on the applicationand interpretation of the 1951 Refugee Convention and its 1967Protocol. It is argued that, even read simply as a set of provisionsgiving interpretive guidelines on the application of the RefugeeConvention, it affects many things concerned with refugee eligibility,since these provisions cover key elements of the refugee definition. Part 3 deals with the impact of the Directive on the asylum-relatedhuman rights jurisdiction that currently prevails in Europein one form or another.¹ It is argued that the effect of theDirective is and must be to render Article 3 ECHR protection– or its domestic equivalent – a largely residualcategory, save in exclusion cases. Part 4 addresses to what extent, if at all, the Directive containsmandatory provisions and how, post-implementation, these canbe integrated into the national law of Member States. It isargued that, considered in purely textual terms, the key definitionaland interpretive provisions of the Directive are mostly in mandatoryform. Further, that whilst, by virtue of being a minimum standardsdirective, the Directive allows Member States to introduce orretain more favourable standards (A3), the same article stipulatesthat such standards must be compatible with the Directive. Thatproviso is of some importance given that the Directive’spreamble (at R7) identifies as one objective the avoidance ofsecondary movements. In relation to articles of the Directivewhich specify in mandatory terms how elements of the refugeedefinition are to be applied, Member States cannot be free tointroduce or retain differing standards. Parts 5 and 6 analyse suggested differences, first, betweenthe Directive’s refugee definition and the Refugee Convention(it is argued that the only potential difference of real significanceconcerns the Directive’s rendering of the Article 1F exclusionclauses of the Refugee Convention) and, secondly, between theDirective’s subsidiary protection definition and Article3 ECHR. The extent of symmetry between the new subsidiary protectioncriteria and ECHR protection under Article 3 is explored, inparticular, arguing that, whilst there are three respects inwhich subsidiary protection criteria are narrower (relatingto personal scope; the existence of cessation and exclusionclauses; and limited application to ‘health cases’),there may be limited respects in which it may be broader inscope than Article 3 ECHR. Part 7 examines patterns of implementation in the light of earlyevidence to hand from, for example, the November 2007 UNHCRsurvey of five Member States. The UK is considered as a furtherexample, that of a member state where, despite it being seenas unnecessary to make any substantial changes, the implementingmeasures have required important changes in method of approachand in conceptual language.     

Chinese Practice in Public International Law: 2006 (III)

Continued from Part II published last year, this part of theSurvey covers materials reflecting Chinese practice in 2006relating to: XI. Outer Space Law (Definition and Delimitationof Outer Space; Draft Protocol on Matters Specific to SpaceAssets to the Convention on International Interests in MobileEquipment; The Status and Application of Five UN Treaties onOuter Space; Practice of States and International Organizationsin Registering Space Objects; The Establishment of the DisasterManagement International Space Coordination Organization; ThePolicy of Peaceful Use of Outer Space; The Cooperative Approachto the Peaceful Use of Outer Space; The Convention of Asia-PacificSpace Cooperation Organization); XII. International Law on Diplomaticand Consular Relation (Preconditions for the Establishment ofDiplomatic Relation; Vienna Convention on the Consular Relations;Diplomatic Protection and Consular Assistance); XIII. InternationalCriminal Law (Universal Jurisdiction in Absentia; Treaty andJudicial Practice on Extradition and Criminal Judicial Assistance;The "East Turkistan" Terrorists in Guantanamo Bay; The LAI CheongSing (LAI Changxing) Case in Canada; The Position Towards TokyoTrial; Illegal Migrants; Trafficking of Persons; Anti-Corruption);XIV. International Law on Environment (Environment and Development;Climate Change; Dam-building on International Rivers; SonghuajiangRiver Pollution Accident; Tropical Rain Forest in SoutheastAsia; Animal Fur Trade; Auction of Dinosaur Egg); XV. InternationalOrganization (United Nations; World Health Organization; ShanghaiCooperation Organization); XVI. International Economic Law (InternationalTrade Law; International Protection of Intellectual PropertyRights; International Financial Law); XVII. International Lawon Energy (Energy and Development; Energy Policy); XVIII. InternationalLaw on Natural Disaster (Tsunami Warning System; InternationalHumanitarian Donation and Assistance); XIX. International Lawon Health (The Issue of SARS; the Issue of Avian and Human PandemicInfluenza).     

Creating Legal Space for Refugees in India: the Milestones Crossed and the Roadmap for the Future

The whole of South Asia is devoid of any standards and normson any dimension of refugee reception, determination and protection.The fact that a quarter of the world's refugees find themselvesin a non-standardized, if not hostile, refugee regime is a situationwhich does not augur well for either the mandate of UNHCR orfor any civilized society. The South Asian nations have theirown apprehensions, real or imaginary, about the utility of CSR1951 to their situations. Because of historical mishaps, politicalignorance, unstable democracies and exaggerated concern overnational security, there is hardly any motivation for, or anyenvironment in which there is a possibility for, the enactmentof national legislation. Non-governmental agencies, in their own way, have been tryingto influence the States to accede to the Convention and, also,to promulgate national laws. The most noticeable contributionis the draft national law for India, ‘Refugees and AsylumSeekers Act’, discussed and approved by the Fourth InformalConsultations on Refugees and Migratory Movement Sessions intheir Dacca Session. The draft legislation has been under considerationby the Indian government for some time but the issue, nonetheless,remains both important and urgent. There is an almost completeabsence of discussion about it in any forum, even the media.This paper is an attempt to examine the provisions of the draftlaw, insofar as it conforms to the international standards,and to show where it is found wanting. The paper also evaluatesthe competence of the draft law to answer security considerationsafter 9/11. The paper suggests suitable amendments that maymake the enactment of national law a reality, so that the voidin the international regime of refugee protection can be filledeffectively and fast.     

论朝鲜“脱北者”的国际法地位及我国的对策

近年来,朝鲜"脱北者"问题逐渐成为地区乃至国际热点问题,中国在该问题上以遣返为主的政策也日益面临来自其他国家的压力。从1951年《关于难民地位的公约》的规定和相关国际实践来看,"脱北者"是否具有难民地位不能一概而论,而是要具体问题具体分析;我国的现有政策总体上无可非议,同时可以考虑按照国际条约,给予那些确因政治原因出逃的"脱北者"们国际法上的难民地位。此外,我国还有必要建立健全处理难民及相关问题的机制。     

Computer-related inventions: from CFPH to Macrossan

Legal context: The recent joint decision of the Court of Appeal in AerotelLtd v Telco Holdings Ltd and othersand Patent Application byNeal William Macrossan concerns the proper application of theexclusions to patentability under Article 52 of the EuropeanPatent Convention (EPC) and in particular the exclusions concerningcomputer implemented inventions and methods of doing business. Key points: Before this decision, the proper approach to this area of thelaw had been thoroughly discussed and reformulated by DeputyJudge Prescott QC in CFPH followed by a string of first instancecases. There were also numerous decisions of the European PatentOffice, not all of which were consistent. Accordingly, thisis an area fraught with difficulty where it has been difficultto find an overreaching rationale to exclusions based on individualpolicy. The Court of Appeal has now set a new four stage test by whichcomputer implemented inventions should be approached, as wellas patents to which the other exclusions might apply. Practical significance: This new test may not reduce the difficulty of assessing inventionson a case by case basis, but it provides one source of authoritythat can now be followed. Furthermore, it may also prove helpfulthat each of the cases featured in this decision falls on eitherside of Article 52. As such the decision provides a useful,if sketchy, illustration of the dividing line between patentableand non-patentable subject matter.     

Asylum Claims and Drug Offences: the Seriousness Threshold of Article 1F(b) of the 1951 Convention Relating to the Status of Refugees and the UN Drug Conventions

Asylum claims lodged by individuals who were involved in drugactivities prior to their entry into the country of asylum raisecomplex questions as to whether they have committed a seriousnon-political crime under Article 1F(b) of the 1951 Conventionand thus shall be excluded from refugee protection. The 1988 UN Convention against Illicit Traffic in Narcotic Drugsand Psychotropic Substances (Trafficking Convention) —which is the relevant international framework for drugs in thefield of international criminal law — indiscriminatelyconsiders all forms of supply related drug offences as ‘seriouscriminal offences’, irrespective of individual criminalresponsibility. This conflicts with the complex nature of thedrug industry particularly in countries affected by armed conflictand proportionality considerations inherent to Article 1F(b). Articles 31 and 32 of the Vienna Convention on the Law of Treatiesprovide a possibility to reconcile the ambiguous wording ofthe Trafficking convention with Article 1F(b) by means of interpretation.Offences for personal consumption as the least serious drugoffences do not reach the seriousness threshold of Article 1F(b).Trafficking offences in turn attain the seriousness thresholdonly if aggravating circumstances prevail over mitigating circumstances,and if there are no grounds for rejecting individual responsibilityor defenses to criminal liability. International, large-scaleactivities carried out by transnational organized criminal groupsare factors that make drug offences most serious.     

Expulsion to Face Torture? Non-refoulement in International Law

Non-refoulement is a principle of international law that precludesstates from returning a person to a place where he or she mightbe tortured or face persecution. The principle, codified inArticle 33 of the 1951 Refugee Convention, is subject to a numberof exceptions. This article examines the status of non-refoulementin international law in respect to three key areas: refugeelaw, human rights law and international customary law. The findingssuggest that while a prohibition on refoulement is part of internationalhuman rights law and international customary law, the evidencethat non-refoulement has acquired the status of a jus cogensnorm is less than convincing.     

Who controls the Naomi Campbell information flow? A practical analysis of the law of privacy

Legal context. The House of Lords held that the medical privacyof the glamorous supermodel Naomi Campbell was violated by publicationof details of her drug addiction treatment and a paparazzi picture.English law is developing under the influence of Article 8 (theright of privacy) and Article 10 (the right of freedom of expression)of the European Convention of Human Rights. The court explainedhow the action for breach of confidence protects privacy. So,who controls the Naomi Campbell information flow? Key points. Primarily, the courts control the flow of privateinformation. They do so through the cause of action of breachof confidence and remedies. In deciding liability, the courtsshould ask whether the benefit of publication is proportionateto the harm done by the invasion of privacy. To answer the question,they must balance the public interest in the right of privacyagainst the public interest in the right of freedom of expression.They may settle on a Reynolds type test by considering a numberof non-exhaustive factors. The article examines seven suggestedfactors and the remedies which can be deployed by the courts.Judgments from the English courts and the European Court ofHuman Rights are considered, including Campbell v MGN (HL),Douglas v Hello! (CA), McKennitt v Ash (HC), Peck v UK (ECtHR),Édition Plon v France (ECtHR), and Von Hannover v Germany(ECtHR). Practical significance. There are an increasing number of privacyclaims against the media. The article includes a checklist ofseven factors to help determine where the balance lies betweenprivacy and freedom of expression.     

The Mexico Declaration and Plan of Action: Reaffirming Latin America's Generous Tradition of Asylum and Innovative Solutions

The ‘Foreword to the Mexico Declaration and Plan of Action’written by Philippe Lavanchy, Director of the Americas Bureauat UNHCR, should have appeared in Volume 17:4 and should stillbe read with the documents there. In late 2005, UNHCR sent alarge set of materials relating to the Americas, but, due toannual page limits for the IJRL, they had to be split across17:4 and 18:1. For     

Incorporation of the European Convention on Human Rights into UK Law: Implications for education

This article focuses on the UK government's proposal to incorporate the European Convention on Human Rights into UK law, and the consequences of incorporation for the individual in the context of education. The first part of the article explores the mechanisms proposed for bringing about incorporation, and stresses in particular the importance attached by the government to upholding the fundamental principle of the sovereignty of the UK Parliament. In this context it emphasises the government's decision to deny to the British courts the capacity to strike down legislative provisions as being incompatible with Convention rights. The second part of the article goes on to explore (highly selectively) a number of key areas in which incorporation of the ECHR has the potential to enhance individual rights in the field of education, including parental choice of school, collective worship and religious education, and aspects of the secular curriculum. The discussion emphasises strongly the likely significance of the UK government's reservation to the second sentence of Article 2 of the First Protocol to the ECHR. Broadly, the conclusion drawn is that the incorporation of the Convention will have only a very marginal impact on the reality of individual rights to education.