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TEMPORARY REFUGE FROM WAR: CUSTOMARY INTERNATIONAL LAW AND THE SYRIAN CONFLICT

  • Hélène Lambert (a1)
Abstract
Abstract

The rule of temporary refuge forms the cornerstone of the response of States to large-scale influx of refugees. In the context of civilians fleeing armed conflict, this legal rule imposes a positive obligation on all States to admit and not to return anyone to a situation where there is a risk to life, and to provide basic rights commensurate with human dignity. Also implicit in the rule is the expectation of shared responsibility for large numbers of refugees and of international cooperation towards finding durable solutions. This article examines the customary international law of temporary refuge (also known as temporary protection) in relation to the Syrian conflict. It discusses implementation of the rule in the practice of three countries neighbouring Syria, and in the EU. It finds that the practice of Turkey, Lebanon and Jordan has been consistent with the rule of temporary refuge. However, the EU has decided not to use the Temporary Protection Directive; instead individual Member States have relied on the Refugee Convention and EU law, combined with various other measures not pertinent to temporary protection. It is concluded that shared responsibility is the linchpin of temporary refuge. Absent this keystone, the rule of temporary refuge is likely to continue to be implemented primarily in a regional context by those countries nearest to the country affected by the conflict, as in the case of Syria.

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1 Gatrell P, The Making of the Modern Refugee (Oxford University Press 2013).

2 189 UNTS 150. The Convention was updated by the 1967 Protocol Relating to the Status of Refugees (606 UNTS 267).

3 This is not the case in countries with a procedure for refugee status determination that uses prima facie as ‘a specific rule of evidence’, Durieux J-F and Hurwitz A, ‘How many is too many? African and European legal responses to mass influxes of refugees’ (2004) 47 German Yearbook of International Law 105, 119 .

4 Art 1C, Refugee Convention.

5 Fitzpatrick talks about refugee law becoming ‘increasingly irrelevant as a solution, especially in situation of mass influx’, Fitzpatrick J, ‘Flight from Asylum: Trends Toward Temporary “Refuge” and Local Responses to Forced Migration’ (1995) 16 Immigration and Nationality Law Review 407, 410 .

6 eg States may refuse entry to stowaways and refugees rescued at sea or by application of the ‘safe third country’ concept without necessarily breaching the principle of non-refoulement in art 33 of the Refugee Convention; Goodwin-Gill GS and McAdam J, The Refugee in International Law (3rd edn, Oxford University Press 2007) 267 . See also Coles GJL, ‘Temporary Refuge and the Large Scale of Influx of Refugees’ (1980) 8 AustYBIL 189 at 195 arguing that ‘admission on a temporary basis facilitates the implementations of the principle of non-refoulement’ (196).

7 The Convention defines a refugee as a person with a ‘well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion’ (art 1A(2)). According to the UNHCR, the violence characterizing most modern conflicts is motivated by or conducted along lines of race, ethnicity, religion, politics or social group ground, or impacts people for the same reasons. However, national decision-makers regularly fail to see it that way. UNHCR Guidelines on International Protection No 12, HCR/GIP/16/12 (2 December 2016), paras1, 35, 36.

8 Final Act of the Conference of Plenipotentiaries, para E.

9 Preamble, 1951 Refugee Convention, Recital 4.

10 Goodwin-Gill GS, ‘ Non-Refoulement, Temporary Refuge, and the ‘‘New’’ Asylum Seekers’ in Cantor DJ and Durieux J-F (eds), Refuge from Inhumanity? War Refugees and International Humanitarian Law (Brill/Nijhoff 2014) 441–2.

11 Gibney MJ, ‘Between Control and Humanitarianism: Temporary Protection in Contemporary Europe’ (2000) 14 GeoImmigrLJ 689, at 690 arguing that European States may have been motivated by two main objectives: the ‘humanitarian objective’ and the ‘control objective’, when offering temporary protection.

12 Weis P, ‘The International Protection of Refugees’ (1954) 48 AJIL 193, 196 . Goodwin-Gill and McAdam (n 6) 289.

13 Gibney (n 11) 689.

14 eg the conflict in Afghanistan since 1979 that has resulted in temporary protection being offered for an indefinite duration by Pakistan. Perluss D and Hartman JF, ‘Temporary Refuge: Emergence of a Customary Norm’ (1986) 26 VaJIntlL 551, 564 and 598.

15 ibid 551—a shorter version of this article, with a more US focus, was published by Hartman JF, ‘The Principle and Practice of Temporary Refuge: A Customary Norm Protecting Civilians Fleeing Internal Armed Conflict’ in Martin DA (ed), The New Asylum Seekers: Refugee Law in the 1980s (Martinus Nijhoff 1988) 87 ; GS Goodwin-Gill (n 10) 897—reproduced in Martin ibid 103.

16 Kerber K, ‘Temporary Protection in the European Union: Chronology’ (2000) 14 GeoImmigrLJ 35 ; Luca D, ‘Questioning Temporary Protection’ (1994) 6 IJRL 535 .

17 Gibney (n 11) 692.

18 eg in Central African Republic, Democratic Republic of the Congo, Iraq, Libya, Nigeria, South Sudan, Ukraine, Yemen etc. UNHCR currently estimates over 60 million people as forcibly displaced; the highest number since WWII. ECRE interviews V Türk, ‘We Should Not Forget History When Addressing Current Challenges’ ECRE Weekly Bulletin (23 October 2015).

19 Of a total population of approximately 22 million before April 2011, over five million refugees are now living outside Syria, and seven million persons are internally displaced. UNHCR, ‘International Protection Considerations with Regard to People Felling the Syrian Arab Republic – Update IV’ (November 2015) para 8.

20 Gibney (n 11) 690.

21 For a discussion on non-EU countries but close to the EU, such as Albania, Armenia, Azerbaijan, Belarus, Bosnia-Herzegovina, Georgia, Montenegro, the Republic of Moldova, the Russian Federation, the former Yugoslav Republic of Macedonia, Serbia, Kosovo, and Ukraine, see UNHCR, Syrian Refugees in Europe: What Europe Can Do to Ensure Protection and Solidarity (July 2014) 29–33.

22 Coles (n 6) 191.

23 Goodwin-Gill (n 10) 433.

24 J Fitzpatrick (n 5) 462. Note that the present article leaves out the issue of so-called ‘safety zones’, regarded as highly controversial (eg the Allied forces Kurdish safe zone in Iraq, the UNSC safe areas in Bosnia-Herzegovina, and the UNSC secure humanitarian area in South-West Rwanda).

25 Robinson WC, ‘The Comprehensive Plan of Action for Indochinese Refugees, 1989–1997: Sharing the Burden and Passing the Buck’ (2004) 17 Journal of Refugee Studies 319 . See also UNHCR, The State of the World's Refugees 2000: Fifty Years of Humanitarian Action 79–103.

26 Coles (n 6) 192–4.

27 UNHCR EXCOM Conclusion 19 (XXXI) Temporary Refuge (1980); Goodwin-Gill and McAdam (n 6) 290; Coles (n 6) 189; Chandrahasan N, ‘Precarious Refuge: A Study of the Reception of Tamil Asylum Seekers into Europe, North American and India’ (1989) 2 HarvHumRtsJ 55 (arguing that India's response towards Tamil asylum seekers in the late 1980s found legal basis in the norm of non-refoulement); Luca D, ‘Questioning Temporary Protection’ (1994) 6 IJRL 535–7.

28 Perluss and Hartman (n 14) 551; Goodwin-Gill (n 10) 897; Hartman J Fitzpatrick, ‘Temporary Refuge and Central American Refugees’ in In Defense of the Alien (Centre Migration Studies 1987) 171 .

29 Mushkat R, ‘Hong Kong as a Country of Temporary Refuge: An Interim Analysis’ (1982) 12 HKLJ 157 .

30 Mushkat ibid 159–60. See also Goodwin-Gill (n 10) 433.

31 Mushkat, ‘Hong Kong as a Country of Temporary Refuge’, at 161–162.

32 Perluss and Hartman (n 14) 584.

33 ibid 602.

34 ibid 553. See also Durieux JF, ‘Three Asylum Paradigms’ (2013) 20 International Journal of Minority and Group Rights 165 ; Goodwin-Gill (n 10) 448; J Moore, ‘Protection against the Forced Return of War Refugees’ in Cantor and Durieux (n 10) 413, referring to ‘humanitarian non-refoulement’.

35 Perluss and Hartman (n 14) 607.

36 Durieux JF, ‘The Duty to Rescue Refugees’ (2016) 28 IJRL 637, 640–1.

37 ibid 643.

38 Goodwin-Gill and McAdam (n 6) 279. See also Durieux (n 36) 643.

39 Hurwitz A, The Collective Responsibility of States to Protect Refugees (Oxford University Press 2009).

40 Perluss and Hartman (n 14) 557 and 572. For a review of sceptical views on the rule, see Goodwin-Gill (n 10) 433–59.

41 Council Directive 2004/83/EC of 29 April 2004 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, OJEU L 304/12 (30 September 2004), and 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), OJEU L 337/9 (20 December) 2011.

42 Convention for the Protection of Human Rights and Fundamental Freedoms, Rome (4 October 1950) E.T.S. No 5.

43 Goodwin-Gill (n 10) 458. For a discussion of non-refoulement as customary international law and jus cogens, see Costello C and Foster M, ‘Non-Refoulement as Custom and Jus Cogens? Putting the Prohibition to the Test46 (2016) Netherlands Yearbook of International Law 2015 273 .

44 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, 1001 UNTS 45, art II(5) (emphasis added).

45 Art III(8).

46 T Wood, ‘The African War Refugee: Using IHL to Interpret the 1969 African Refugee Convention's Expanded Refugee Definition’ in Cantor and Durieux (n 10) 179ff.

47 D Cantor and D Mora, ‘A Simple Solution to War Refugees? The Latin American Expanded Definition and its Relationship to IHL’ in Cantor and Durieux (n 10) 204.

48 N Chandrahasan, ‘Precarious Refuge: A Study of the Reception of Tamil Asylum Seekers into Europe, North American and India’ (1989) 2 HarvHumRtsJ 55. See now, Asian-African Legal Consultative Organization (AALCO), ‘Bangkok Principles on the Status and Treatment of Refugees’ (Bangkok Principles), 31 December 1966, adopted on 24 June 2001 at the AALCO's 40th Session, New Delhi.

49 Fitzpatrick (n 5) 438–43.

50 Martin S, Schoenholtz A and Meyers D Waller, ‘Temporary Protection: Towards a New Regional and Domestic Framework’ (1998) 12 GeoImmigrLJ 543 .

51 Gibney (n 11) 689. See also Lambert H, Seeking Asylum: Comparative Law and Practice in Selected European Countries (Martinus Nijhoff 1995) 126 .

52 eg Council of Europe Parliamentary Assembly Recommendation 773 (1976).

53 Loescher G, The UNHCR and World Politics: A Perilous Path (Oxford University Press 2001) 315 .

54 Thorburn J, ‘Transcending Boundaries: Temporary Protection and Burden-Sharing in Europe’ (1995) 7 IJRL 459 .

55 Council Directive 2001/55/EC of 20 July 2001 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 (OJEU L 212, 7 August 2001).

56 According to Perluss and Hartman, the norm of temporary refuge itself ‘does not require a regularization of legal status’, for example through permanent asylum and the acquisition of nationality (at 597–8). However, should the armed conflict last, ‘the norm of temporary refuge may result in a de facto permanent resettlement in the refuge State’ through integration, ie, asylum, or resettlement elsewhere (at 598).

57 Goodwin-Gill and McAdam (n 6) 340–1. See also Gibney ‘Between Control and Humanitarianism’. Thorburn too has questioned Europe's focus on return in its formulation of policies to manage refugees from former Yugoslavia, ie, on the ‘temporary’ rather than the ‘protection’ aspect of the phenomenon, in Thorburn J, ‘Transcending Boundaries: Temporary Protection and Burden-Sharing in Europe’ (1995) 7 IJRL 459, 459–60.

58 Art 1C(5) of the Refugee Convention and arts 11 and 16 of the Qualification Directive; see also Proposal for a Qualification Regulation introducing a ‘compulsory status review’ mechanism that would lead to increased cases of return to countries of origin COM(2016) 466 final, 13 July 2016, 2016/0223 (COD) at 14.

59 Note that UNGA resolutions on temporary refuge related matters were all adopted without vote.

60 UNHCR EXCOM members currently total 98 States, including Jordan, Lebanon, Turkey, and most EU countries; hence ratification of the Refugee Convention/Protocol is not a requirement. The EU has observer status.

61 ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, para 70. See also International Law Commission (ILC), Identification of customary international law, Text of the draft conclusions provisionally adopted by the Drafting Committee, 67th Session of the ILC, UN Doc A/CN.4/L.869 (14 July 2015) draft conclusion 12.

62 Art 3(3), UN General Assembly, Declaration on Territorial Asylum (14 December 1967) A/RES/2312(XXII); UNGA Res 37/195, OP4 (18 December 1982) para 4, adopted without vote; UNGA Res 49/169, OP7 (23 December 1994) para 7, adopted without vote.

63 UNGA Resolution 69/152, OP39 (18 December 2014) (emphasis added), adopted without a vote.

64 UNHCR's role is ‘one of guidance, supervisions, co-ordination and oversight’ to help States manage large numbers of refugees. Lewis C, UNHCR and International Refugee Law: From Treaties to Innovation (Routledge 2012) 22 .

65 EXCOM Conclusion 5 (XXVI) Asylum (1977) (b); and again in EXCOM Conclusion 11 (XXIX) General (1978) (d) and EXCOM Conclusion 14 (XXX) General (1979) (c). Conclusions of the Executive Committee (EXCOM) of the UNHCR relating to temporary refuge constitute ‘expressions of opinion which are broadly representative of the views of the international community’ – these conclusions are taken by consensus.

66 EXCOM Conclusion 15 (XXX) Refugees without an Asylum Country (1979) (f). The first conclusion to refer to ‘temporary refuge’, it was adopted in the aftermath of the Indochina crisis. See also UNHCR, ‘Protection of Persons of Concern to UNHCR Who Fall outside the 1951 Convention: A Discussion Note’, UN Doc EC/1992/SCP.CRP.5 (2 April 1992).

67 EXCOM Conclusion 19 (XXXI) Temporary Refuge (1980) (c) and (e).

68 EXCOM Conclusion 22 (XXXII) Protection of Asylum-Seekers in Situations of Large-Scale Influx (1981).

69 EXCOM Conclusion 23 (XXXII) Problems Related to the Rescue of Asylum-Seekers in Distress at Sea (1981).

70 Fitzpatrick (n 5) 436.

71 EXCOM Conclusion 68 (XLIII) General (1992) (u).

72 EXCOM Conclusion 71 (XLIV) General (1993) (m).

73 With protection meaning ‘admission to safety, respect for basic human rights, protection against refoulement, and safe return when conditions permit to the country of origin’. EXCOM Conclusion 74 (XLV) General (1994) (r).

74 UNHCR, The State of the World's Refugees: The Challenge of Protection (Penguin 1993) 41 .

75 EXCOM Conclusion 100 (LV) International Cooperation and Burden and Responsibility Sharing in Mass Influx Situations (2004).

76 UNHCR, Roundtable on Temporary Protection (19–20 July 2012) International Institute of Humanitarian Law, San Remo, Italy, Discussion Paper, para 1.

77 ibid ‘Discussion Paper’ and ‘Summary Conclusions’; and UNHCR, Roundtable on Temporary Protection (15–16 July 2013) San Remo, Italy, ‘Concept Note’. Note that these were preceded by a UNHCR, Expert Meeting on International Cooperation to Share Burdens and Responsibilities (28 June 2011) Amman, Jordan.

78 UNHCR, Guidelines on Temporary Protection or Stay Arrangements (2014), reproduced in (2015) 27 IJRL 157 (with Introductory Note at 154).

79 UNGA New York Declaration, A/71/L.1 (13 September 2016) para 11. See also Volker Türk, ‘A Minor Miracle: A New Global Compact on Refugees’, Address at the Andrew & Renata Kaldor Centre for International Refugee Law, University of New South Wales, Sydney (18 November 2016).

80 UNGA New York Declaration, A/71/L.1 (13 September 2016) para 7.

81 ibid para 68.

82 ILC, Identification of customary international law, Text of the draft conclusions provisionally adopted by the Drafting Committee, 67th Session of the ILC, UN Doc A/CN.4/L.869 (14 July 2015) draft conclusion 13.

83 NA v United Kingdom, App No 25904/07, Judgment of 17 July 2008; Sufi and Elmi v United Kingdom, App Nos 8319/07 and 11449/07, Judgment of 28 June 2011. See H Lambert, ‘The Next Frontier: Expanding Protection in Europe for Victims of Armed Conflict and Indiscriminate Violence’ (2013) 23 IJRL 207 (also discussing the Court of Justice of the European Union case law).

84 LM and others v Russia, App Nos 40081/14, 40088/14 and 40127/14, European Court of Human Rights, First Section, Judgment of 15 October 2015.

85 para 110.

86 para 126. See also, SK v Russia, App No 52722/15, European Court of Human Rights, Third Section, Judgment of14 February 2017.

87 para 80.

88 MSS v Belgium and Greece, App No 30696/09, Grand Chamber, Judgment of 21 January 2011; and Sufi and Elmi v United Kingdom, App Nos 8319/07 and 11449/07, Fourth Section, Judgment of 28 June 2011.

89 Art 38(1)(b), Statute of the International Court of Justice. See also for a recent pronouncement, ICJ, Jurisdictional Immunities of the State (Germany v Italy), Greece Intervening, Judgment of 3 February 2012, para 55.

90 ILC, Identification of customary international law, Text of the draft conclusions provisionally adopted by the Drafting Committee, 67th Session of the ILC, UN Doc A/CN.4/L.869 (14 July 2015) draft conclusion 3(2). See also ICJ, North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), Judgment of 20 February 1969, paras 74, and 77; ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Merits, Judgment of 27 June 1986, para 207; and M Wood (Special Rapporteur to the International Law Commission), ‘Second report on Identification of Customary International Law’ (UNGA 22 May 2014) A/CN.4/672, paras 3 and 23.

91 M Wood (Special Rapporteur to the ILC), ‘Third Report on Identification of Customary International Law’ (UNGA 27 March 2015) A/CN.4/682, para.18.

92 ICJ, North Sea Continental Shelf Cases, para 74. See also Jennings R and Watts A (eds), Oppenheim's International Law Vol.1 (9th edn, Longman 1996) 26 .

93 Note that there are no decisions of national courts on temporary refuge (or temporary protection), in contrast with the large number of decisions on refugee protection or subsidiary/complementary protection.

94 M Wood (Special Rapporteur to the ILC), ‘First Report on Formation and Evidence of Customary International Law’ (UNGA 17 May 2013) A/CN.4/663, at 51, fn 245 referring to Wouters J and Ryngaert C, ‘Impact on the Process of the Formation of Customary International Law’ in Kamminga MT and Scheinin M (eds), The Impact of Human Rights Law on General International Law (Oxford University Press 2009).

95 For a full discussion, see Wood, First Report, 52–53. ILC draft conclusion 9(1) refers to State practice being ‘undertaken with a sense of legal right or obligation’ and does not elaborate on the place of morality.

96 T Gerety, ‘Sanctuary: A Comment on the Ironic Relation between Law and Morality’ in Martin (n 15) 159, at 174—discussing the 1982 US law making the sanctuary of an alien, not lawfully entitled to enter or reside within the US, a federal crime.

97 High Commissioner's Dialogue on Protection Challenges, ‘Understanding and addressing root causes of displacement’, Preliminary Concept Paper, Geneva (7 August 2015) para 3.

98 Between April 2011 and October 2016, 884,461 Syrians have claimed asylum in 37 European countries. <http://data.unhcr.org/syrianrefugees/regional.php>.

99 By January 2016, more than 250,000 Syrians had been killed and 1.2 million injured (Co-host Declaration of the Supporting Syria and the Region Conference, London, 4 February 2016).

100 UNSC, Report of the Secretary-General on the Implementation of Security Council Resolutions 2139 (2014), 2165 (2014) and 2191 (2014) and 2258 (2015), S/2016/1057 (14 December 2016) 17.

101 K Kirisçi, ‘Syrian Refugees and Turkey's Challenges: Going beyond Hospitality’ (Brookings Institution 2014) 14.

102 Republic of Turkey, Prime Ministry Office of Public Diplomacy, ‘Turkey as the Long-Standing Safe Harbour on the World Refugee Day’ (2010) 3, available at <http://kdk.gov.tr//en/haber/turkey-as-the-long-standing-safe-harbour-on-the-world-refugee-day/494>.

105 Art 3 ECHR, art 3 CAT and art 7 ICCPR have all been interpreted as guaranteeing non-refoulement; see H Lambert, ‘Protection against Refoulement from Europe: Human Rights Law Comes to the Rescue’ 48 (1999) ICLQ 515.

106 It may also be based on the customary international law rule of non-refoulement; see Lauterpacht E and Bethlehem D, ‘The Scope and Content of the Principle of Non-Refoulement: Opinion’ in Feller E, Turk V and Nicholson F (eds), Refugee Protection in International Law – UNHCR's Global Consultations on International Protection (Cambridge 2003) 87 (arguing for non-refoulement to have become a rule of customary international law).

107 Reliance on the UNHCR Statute does not change this conclusion because although the Statute provides a definition of refugees akin to that in art 1A(2) of the Refugee Convention (as revised by the 1967 Protocol), it is not a treaty but ‘the defining document for the organization's structure and powers’. Lewis (n 64) 13.

108 The Law does not affect Turkey's geographical limitation to the Refugee Convention, which therefore remains.

109 Law No 6458, Official Gazette, No 28615 (11 April 2013) <http://www.resmigazete.gov.tr/eskiler/2013/04/20130411-2.htm>. The Law entered into force on 11 April 2014. A newly set up General Directorate of Migration Management (within the Ministry of the Interior) is responsible for its implementation, and therefore for granting Temporary Protection.

110 Regulation (‘by-law’) No 29153 on Temporary Protection—the Regulation entered into force on 22 October 2014.

111 Ineli-Ciger M, ‘Implications for the New Turkish Law on Foreigners and International Protection and Regulation No. 29153 on Temporary Protection for Syrians Seeking Protection in Turkey’ (2014) 4(2) Oxford Monitor of Forced Migration 32–3.

112 3RP Regional Refugee and Resilience Plan 2016–2017 in Response to the Syria Crisis, Turkey. The Regional Refugee and Resilience Plan is a new global initiative for the UN, the first of its kind, in terms of its response to crises; it was launched in Ankara in December 2014. ‘It is an inclusive model for delivering an effective, comprehensive, and coordinated response which addresses, through national plans, immediate vulnerabilities, strengthens social cohesion, and builds the resilience of people, communities and national system’ at <http://www.bmdergi.org/en/the-regional-refugee-and-resilience-plan-3rp-launched-in-ankara/>.

113 The EU–Turkey deal provides that for every Syrian being returned to Turkey from the Greek islands, another Syrian will be resettled to the EU—EU-Turkey statement (8 March 2016) Press Release 144/16, 18/03/3016 <http://www.consilium.europa.eu/press-releases-pdf/2016/3/40802210113_en.pdf>. See also Council of Europe Parliamentary Assembly, Resolution 2109 (2016), adopted on 20 April 2016.

115 International Labour Organisation, Regional Office for Arab States, ‘Access to Work for Syrian refugees in Jordan: A Discussion Paper on Labour and Refugee Laws and Policies’ (30 March 2015) 12.

116 Memorandum of Understanding between the UNHCR and the Government of Lebanon (2003). See also M Janmyr, ‘Legal Status of Syrian Refugees in Lebanon’, Working Paper 33 Issam Fares Institute for Public Policy and Internal Affairs, Beirut (March 2016) at 7.

117 However, Jordan is not a party to the Optional Protocol to the Convention Against Torture and neither Jordan nor Lebanon are parties to First Optional Protocol to the International Covenant on Civil and Political Rights.

118 Naufal H, Syrian Refugees in Lebanon: The Humanitarian Approach under Political Divisions (Migration Policy Centre Research Report 2012/13 (24 September 2012)) 12 ; C Thibos, ‘One Million Syrians in Lebanon: A Milestone Quickly Passed’ (Migration Policy Centre, European University Institute (2014)) at 1; L Achilli, ‘Syrian Refugees in Jordan: A Reality Check’ (Migration Policy Centre, European University Institute, February 2015) at 3.

119 Lebanon's policy of not setting formal camps for Syrian refugees has meant that the great majority of refugees live in some of the poorest neighbourhoods, where opportunities for employment are almost inexistent; ECHO Factsheet – Lebanon: Syrian crisis – May 2016, at 2. In Jordan, approximately half of Syrian refugees are registered with UNHCR and receive humanitarian assistance and shelter from the organization; the other half live outside camps, in some of the poorest parts of the country; UNHCR Operational Update – Jordan – May 2016.

120 J Abisaab et al., ‘Syrian Refugees in Jordan: Urgent Issues and Recommendations’ (FXB Center for Health and Human Rights and Harvard School of Public Health, November 2014) at 7–8.

121 Human Rights Watch, ‘Not Welcome: Jordan's Treatment of Palestinians Escaping Syria’ (7 August 2014) 31–3.

122 Khalil A, ‘Socioeconomic Rights of Palestinian Refugees in Arab Countries’ (2011) 23 IJRL 680, 693 .

123 New Circular (entered into force 5 January 2015) and regulations on entry, residency and regularization of 13 January, 3 and 23 February 2015. See Janmyr (n 116) 13.

124 Amnesty International (Jordan), ‘Time to Live up to International Human Rights Commitments’, Submission to the UN Universal Periodic Review, October–November 2013, at 5; Achilli (n 118) 4.

125 Care International, ‘Five Years into Exile: The challenges faced by Syrian refugees outside camps in Jordan and how they and their host communities are coping’ (30 June 2015) 2. On the positive side, in 2016, the UNHCR launched, and subsequently expanded, the ‘Cash for Health’ scheme to allow an increase in the number receiving essential health care by channelling funds directly to refugees, thereby making health care cheaper to afford. UNHCR, Jordan Factsheet, May 2016.

126 Aranki D and Kalis O, ‘Limited Legal Status for Refugees from Syria in Lebanon’ (2014) 47 Forced Migration Review 1718 ; Stevens D, ‘Rights, Needs or Assistance? The Role of the UNHCR in Refugee Protection in the Middle East’ (2015) IntJHRts 1 .

127 UNHCR, Jordan Factsheet, May 2016. One notable exception is UNHCR submission (in 2016) of 15,000 Syrians to the US for fast-track resettlement.

128 EU Commission Press Release, Commission Announces New Migration Partnership Framework: Reinforced Cooperation with Third Countries to Better Manage Migration’, Strasbourg, 7 June 2016.

129 3RP Regional Refugee and Resilience Plan 2016–2017 in response to the Syria crisis – Regional Strategic Overview, at 13.

130 UNHCR Operational Update – Jordan – May 2016.

131 Al-Monitor, ‘Lebanese Foreign Minister: We Cannot Be the Only Ones Receiving Refugees’ (25 September 2015) <http://www.al-monitor.com/pulse/originals/2015/09/lebanon-foreign-minister-bassil-interview-syria-refugees.html> and UN News Service, ‘Lebanese President appeals for support to assist hundreds of thousands of Syrian refugees’ (24 September 2013) available at <http://www.refworld.org/docid/524956ae4.html>.

132 Communication from the Commission to the European Parliament and the Council, ‘Towards a Reform of the Common European Asylum System and Enhancing Legal Avenues to Europe’, COM(2016) 197 final, Brussels (6 April 2016).

133 Council Directive 2001/55/EC of 20 July 2001 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, OJEU L 212 (7 August 2001) 12–23.

134 OJEU C 326 (26 October 2012) 47–390.

135 ie residence permit, emergency health care, shelter, social benefits, children education, limited right to family reunification, guaranteed access to the normal asylum procedure on the basis of art 2(e) QD (refugee status) or art 2(g) QD (subsidiary protection status), and limited access to employment on a temporary basis (up to three years).

136 C Orchard and D Chatty, ‘High Time for Europe to Offer Temporary Protection to Refugees from Syria’ Oxford Human Rights Hub Blog (27 October 2014). <http://ohrh.law.ox.ac.uk/high-time-for-europe-to-offer-temporary-protection-to-refugees-from-syria/>

137 M Ineli-Ciger, ‘Time to Activate the Temporary Protection Directive: Why the Directive Can Play a Key Role in Solving the Migration Crisis in Europe’ (2016) 18 European Journal of Migration and Law 1, 14–19; J Walsh, ‘Is Temporary Protection the Answer to Europe's Refugee Crisis?’ 19 (2015) The Researcher 31–4.

138 Under art 15c of the EU Qualification Directive. eg in Bulgaria, Syrian nationals who are able to prove their identity and nationality with original Syrian documents have been automatically granted subsidiary status as a prioritized group (Law on Asylum and Refugees, Article 15, State Gazette No. 54/31.05.2002, last amended and supplemented, SG No. 82/16.10.2009).

139 Under Chapters II and III of the EU Qualification Directive incorporating art 1A(2) of the Refugee Convention). See UNHCR, ‘International Protection Considerations with regard to people fleeing the Syrian Arab Republic – Update IV’ (November 2015) para 36—referring to Eurostat, Asylum Quarterly Report – First Instance Decisions in the EU-28 by Outcome, Selected Citizenships, 2nd Quarter 2015 (16 September 2015); and European Asylum Support Office (EASO), Newsletter September 2015 (October 2015) 3.

140 This was adopted in May 2015 by the European Commission—COM(2015) 240 final, European Agenda on Migration, Brussels 13.5.2015.

141 COM(2015) 490 final/2, Managing the refugee crisis: immediate operational, budgetary and legal measures under the European Agenda on Migration, Brussels 29.9.2015.

142 Art 2(e) of the Qualification Directive.

143 Art 2(g) of the Qualification Directive.

144 Humanitarian admission programmes are ad hoc processes whereby a Member State admits a number of non-EU nationals to stay on its territory for a temporary period of time in order to protect them from urgent immediate humanitarian crises due to events such as conflicts. See Regulation (EU) No 516/2014 of the European Parliament and of the Council of 16 April 2014 establishing the Asylum, Migration and Integration, Official Journal 20.5.2014 L 150/168, art 2(b).

145 By 6 December 2016, 13,887 people had been resettled from Turkey, Jordan and Lebanon, to 21 resettling countries of the Council of Europe, out of the 22,504 agreed under the resettlement scheme of July 2015 (European Commission, Eighth Report on Relocation and Resettlement, Brussels (8 December 2016) COM(2016) 791 final.

146 Austria, France, Germany, the UK and Ireland are all countries operating humanitarian admission programmes.

147 As in the case of Germany and Ireland.

148 As offered by Portugal.

149 As offered in the United Kingdom.

150 In place in Switzerland.

151 <http://www.resettlement.eu/country-situation-syria/france>. Since 2012, France has provided 2,622 asylum visas for Syrians. UNHCR, ‘Resettlement and Other Forms of Legal Admissions for Syrian Refugees’ (18 March 2016) available at <http://reliefweb.int/report/syrian-arab-republic/resettlement-and-other-forms-admission-syrian-refugees-18-march-2016>.

152 eg in France, see <http://www.resettlement.eu/country-situation-syria/france>; in Austria, see <http://www.resettlement.eu/country-situation-syria/austria>; in the UK, the ‘Syrian Vulnerable Person Resettlement Programme’ provides for Humanitarian Protection status (ie subsidiary protection status), see House of Commons Briefing Paper No 06805 (10 June 2016) ‘Syrian refugees and the UK response’.

153 Speech by Minister David Stanton at a UNHCR National Conference on Refugee Sponsorship Programmes and Students Scholarship Schemes (9 September 2016) at <http://www.inis.gov.ie/en/INIS/Pages/speech-09092016>.

155 A Arnold and E Quinn, ‘Resettlement of Refugees and Private Sponsorship in Ireland’ ESRI Research Series No 55 (December 2016) 50.

156 <http://www.resettlement.eu/country-situation-syria/germany>. These programmes were adopted at a time when Germany fell the ‘responsibility’ to accept as much as 800,000 refugees from Syria and Iraq in 2015, the largest number in the history of Germany; The Federal Chancellor, Meeting of Federal and State Governments on Refugees, ‘‘‘A Good Day for Local Authorities’’, Says Chancellor’ (24 September 2015) <http://www.bundeskanzlerin.de/Content/EN/Artikel/2015/09_en/2015-09-24-fluechtlinge-kanzleramt_en.html>.

157 European Commission Press Release, ‘Completing the Reform of the Common European Asylum System: Towards an Efficient, Fair and Humane Asylum Policy’, Brussels (13 July 2016) IP/16/2433.

158 A first set of proposals was adopted by the European Commission on 4 May 2016 (‘Towards a sustainable and fair Common European Asylum System’, IP/16/1620); these were completed by a further set on 13 July 2016 (IP/16/2433).

159 W Kälin, ‘Reconceptualizing Durable Solutions for Refugees as a Protection Challenge’, Distinguished Keynote, Refugee Law Initiative 1st Annual Conference (30 June 2016). It would be desirable if the rule could evolve into encompassing a legal obligation not to render anyone stateless following displacement as a result of an armed conflict (eg, a temporary relaxation of the rules on acquisition of nationality for newborn babies); see Lambert H, ‘Comparative Perspectives on Arbitrary Deprivation of Nationality and Refugee Status’ (2015) 64(1) ICQL 1 ; or to combat forced marriages during displacement—see F Dionigi, ‘Do We Need a Regional Compact for Refugee Protection in the Middle East?’ LSE Middle East Centre Blog (30 October 2015).

I am grateful to Ella Gunn (MSc in Refugee Studies, Oxford) for her research assistance, to the participants of the Refugee Law Initiative 1st Annual Conference for their feedback, and to the anonymous reviewers for their detailed and helpful comments.

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International & Comparative Law Quarterly
  • ISSN: 0020-5893
  • EISSN: 1471-6895
  • URL: /core/journals/international-and-comparative-law-quarterly
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