TEMPORARY REFUGE FROM WAR: CUSTOMARY INTERNATIONAL LAW AND THE SYRIAN CONFLICT | International & Comparative Law Quarterly

This section reviews academic authorities on relevant State practice, before considering the position of international organizations and international courts concerning the rule. Its current application in relation to Syrian refugees is examined in sections III and IV.

A. Doctrine

Temporary refuge has been described by Coles as a practice ‘to facilitate admission and the obtaining of satisfactory solutions’ in situations where the scale of such influx is such that problems of a humanitarian nature, of public order, of national security or even of international peace and security may be at stake.Footnote
22
[1] It emerged at a time when State practice indicated that ‘the only sort of refuge was permanent asylum’.Footnote
23
[2]

From the start, it was premised on ‘polite or explicit quid pro quos’ that other countries than the countries of temporary refuge would screen and grant resettlement to a large proportion of the population concerned; ‘[t]he promise of resettlement was the defining “temporary” element in the refuge offered by the States of first asylum, because the causes of flight were often of indefinite duration’.Footnote
24
[3] For instance, in South Asia, the 1979 Agreement provided for temporary asylum to be given to refugees from Indochina on condition of resettlement in a third country; it was replaced by the Comprehensive Plan of Action in 1989.Footnote
25
[4] In other instances, temporary refuge was provided (short-term) until voluntary repatriation could start, eg, in Eastern Pakistan in 1971, following events which resulted in the sudden arrival in India of some ten million refugees (‘evacuees’).Footnote
26
[5] Should voluntary return not be possible, or offers of resettlement not be forthcoming from the international community, material assistance to the countries of temporary refuge was expected and was generally given.

It has often been argued by scholars that the obligation to provide temporary refuge in cases of mass influx finds its roots in the principle of non-refoulement (Article 33, Refugee Convention), which covers persons fleeing armed conflict.Footnote
27
[6] Less noted is the origin of this legal obligation in an emerging rule of customary international law of temporary refuge, distinct from refugee law and finding authority in a considerable amount of relevant State practice accepted as law.Footnote
28
[7]

Mushkat, for instance, one of the first scholars to have written about temporary refuge in 1982, considered Hong Kong to be a country-colony of temporary refuge for Vietnamese refugees, unlike its Asian neighbours, and pointed to the challenges of having ‘to cater’ for their needs on a long-term basis when the situation becomes protracted.Footnote
29
[8] She explained that non-refoulement and temporary refuge both entail ‘an obligation of states to permit entry’ but they differ significantly in that temporary refuge ‘appears to impose additional obligations on receiving countries and is a more tangible step towards a durable solution’.Footnote
30
[9] She further noted that, despite the practice having ‘found expression – whether explicit or implicit – in a number of legal instruments’, there exists among States a ‘reluctance to institutionalise the phenomenon’, which she described as ‘avoidance of self-conscious choice’ so as not to undermine non-refoulement and permanent asylum.Footnote
31
[10]

Four years later, Perluss and Hartman argued that ‘as a norm of customary humanitarian law, temporary refuge is far better equipped than current codified law to deal with situations of mass influx’ for practical and juridical reasons; it circumvents individualized determination of refugee status and it does not require the same level of factual evidence of persecution as under the Refugee Convention.Footnote
32
[11] They explained that the norm ‘has emerged out of the essential principle of humanitarian law: the balance between necessity and humanity’Footnote
33
[12] and it exists ‘at the point of intersection of … international humanitarian law, refugee law, and human rights law’.Footnote
34
[13] The norm ‘resides within that portion of humanitarian law which remains uncodified’,Footnote
35
[14] ie, the humanitarian law of rescue.

Durieux develops the ‘rescue paradigm’ by reference to the discourse of disaster and emergency. For Durieux ‘the primary duty of frontline States’ must be conceptually separated from the duty of non-refoulement for reasons of fundamental fairness.Footnote
36
[15] He proposes instead thinking about large refugee influxes as ‘complex emergencies’, in which the victims of the disaster are not just the refugees themselves but also the frontline States and their populations, and the ‘rescuer’ becomes all other States.Footnote
37
[16] This idea resonates with the duty imposed by international law for the nearest country to provide a ‘place of safety’ to those persons rescued at sea,Footnote
38
[17] and the customary international law rule of temporary refuge, which is rooted in international cooperation and understandings of shared responsibility (see section IIB below).Footnote
39
[18]

To be sure, State practice provides numerous instances where countries have obstructed access to protection (eg, through push-back policies), but as Perluss and Hartman have argued, these must be seen as mere examples of States evading meeting their obligations under the rule, nothing more.Footnote
40
[19] Thus, temporary refuge is clearly distinguished and detached from treaty law, that is, the Refugee Convention, and in Europe the EU Qualification DirectiveFootnote
41
[20] and the European Convention on Human Rights (ECHR).Footnote
42
[21] The rule may (on occasion) overlap with the principle of non-refoulement but the two are distinct.Footnote
43
[22]

Independently from its customary nature, the rule of temporary refuge has ‘crystallized’ in other sources of international law, reinforcing its normative character. The Organization of African Unity Convention, which extends protection to persons fleeing events such as external aggression or occupation, provides that

Where a refugee has not received the right to reside in any country of asylum, he may be granted temporary residence in any country of asylum in which he first presented himself as a refugee pending arrangement for his resettlement.Footnote
44
[23]

The Cartagena Declaration, which also extends protection to persons fleeing situations of generalized violence, internal conflicts, or massive violations of human rights, emphasizes consideration of UNHCR EXCOM conclusions, particularly No 22 on the Protection of Asylum Seekers in Situations of Large-Scale Influx (see section IIB below).Footnote
45
[24] As a result, there is considerable practice relating to temporary refuge in AfricaFootnote
46
[25] and Latin AmericaFootnote
47
[26] where there have been large-scale influxes from armed conflict and where group determination of prima facie refugee status is the norm. This has also been the case in India and other Asian countries.Footnote
48
[27]

The United States too has afforded protection against the return of large numbers of people fleeing armed conflict or natural disaster, be they from Haiti, Cuba, El Salvador, or Nicaragua.Footnote
49
[28] These ad hoc responses resulted in the adoption of Temporary Protected Status in 1990, which has even been granted in the context of environmental disasters, eg, the earthquake in Haiti in 2010 or the volcanic eruptions in Montserrat in 1995 and 1997. This involved both admission and temporary status being provided to Haitian and Montserratian refugees by the United States, and a decision by other countries not to forcibly return those already within their territories.Footnote
50
[29]

Finally, in Europe, States have long afforded some form of protection on a temporary basis to persons fleeing armed conflict who fall outside the framework of the Refugee Convention (de facto refugees). For instance, Austria temporarily hosted large numbers of refugees from Czechoslovakia in 1968 while solutions for permanent settlement in Western countries were found.Footnote
51
[30] The practice of de facto humanitarian status increased significantly in the late 1970s and 1980sFootnote
52
[31] and reached a considerable magnitude in the 1990s following the conflicts in the former Yugoslavia and Kosovo. Some countries introduced a policy of temporary protection as a way to cope with ‘an all-time high’ number of asylum seekers.Footnote
53
[32] Over half a million received temporary protection in Germany, with large numbers also going to Austria, Sweden and Switzerland, pending their return home after the conflict. The great disparity between EU countries in the numbers of refugees received prompted numerous calls for ‘burden sharing’ from the most affected countries, the European Union, and the Council of Europe,Footnote
54
[33] leading eventually to the adoption of a EU Directive on Temporary Protection.Footnote
55
[34]

Because it has developed from general practice accepted as law, the exact contours and content of temporary refuge have never been entirely clear as some countries confine beneficiaries of temporary refuge to camps, whereas other countries offer far more, even in some cases refugee status or a status akin to it.Footnote
56
[35] The premise of temporary refuge (in terms of durable solutions) has also varied, namely eventual return to the country of origin (the model in Europe during the 1990s) in contrast with resettlement in a third country and only later repatriation (the model used in the case of Indochina).Footnote
57
[36]

As will be apparent from section IV below, EU countries have been reluctant to provide large-scale resettlement, and return is likely to remain the model in Europe given that cessation provisions are now increasingly invoked and proposals have been brought forward for a systematic and ‘compulsory status review’ mechanism of international protection statuses.Footnote
58
[37] The practices of countries neighbouring Syria, on the other hand, show temporary refuge being applied.

B. International Organizations

International organizations have long recognized the imperative for States to offer temporary refuge for large numbers of people fleeing armed conflict. This imperative is reflected in UN General Assembly (UNGA) resolutionsFootnote
59
[38] and UNHCR Executive Committee (EXCOM) conclusions.Footnote
60
[39] Whilst this body of work does not constitute custom, it nonetheless provides evidence of the normative character of such practice.Footnote
61
[40]

A snapshot of UNGA instruments reveals several instances where the General Assembly recommended States to offer provisional asylum or temporary refuge as a collective measure of solidarity.Footnote
62
[41] For instance, UNGA Resolution 69/152 (2014)

Urges all States and relevant non-governmental and other organizations, in conjunction with the Office of the High Commissioner, in a spirit of international solidarity and burden-sharing, to cooperate and to mobilize resources, including through financial and in-kind assistance, as well as direct aid to host countries, refugee populations and the communities hosting them, with a view to enhancing the capacity of and reducing the heavy burden borne by countries and communities hosting refugees, in particular those that have received large numbers of refugees and asylum seekers, and whose generosity is appreciated.Footnote
63
[42]

Pursuant to these policy directives, the UNHCR has played a leading role in fostering the growing interest of States in temporary refuge.Footnote
64
[43] The UNHCR referred to ‘temporary asylum’ for the first time in 1977,Footnote
65
[44] but the first explicit reference to temporary refuge in the context of mass-influx appears in EXCOM Conclusion 15 (XXX) in 1979: ‘In cases of large-scale influx, persons seeking asylum should always receive at least temporary refuge.’Footnote
66
[45] The point was reaffirmed a few months later in EXCOM Conclusion 19 (XXXI), which also called for further study of the practice.Footnote
67
[46] Following a Group of Experts meeting on temporary refuge, EXCOM Conclusion 22 (XXXII) was adopted which provided detailed provisions concerning protection and international solidarity, burden sharing and the duties of States.Footnote
68
[47] EXCOM Conclusion 23 (XXXII) is the last to refer to ‘temporary refuge’,Footnote
69
[48] leading Fitzpatrick to write that ‘By 1985 the UNHCR had almost assimilated the norm of temporary refuge into the fundamental protection regime for refugees.’Footnote
70
[49]

The shift in label from temporary refuge to temporary protection dates back to 1992,Footnote
71
[50] but the importance of temporary refuge, as expressed in EXCOM Conclusion 22 (XXXII), has continued to be reaffirmed ever since.Footnote
72
[51] By the early 1990s, temporary refuge was recognized ‘as a legitimate tool of international protection’,Footnote
73
[52] a strategy for asylum clearly distinct from other forms of protection, such as complementary (or subsidiary) protection.Footnote
74
[53] It was essentially aimed at unburdening asylum procedures in cases of mass influx and, for UNHCR it was clearly anchored in international cooperation and responsibility sharing.Footnote
75
[54]

Notwithstanding this level of interest and involvement, by 2012, UNHCR conceded that ‘No consensus has however been reached on the situation in which temporary protection could be applied or its minimum content’.Footnote
76
[55] Following two Roundtables on Temporary Protection,Footnote
77
[56] the UNHCR adopted Guidelines elaborating on the duty of States to cooperate, to protect against refoulement, and to provide basic minimum treatment pending the finding of a durable solution.Footnote
78
[57]

The acknowledgement of ‘shared responsibility to manage large movements of refugees and migrants … through international cooperation’ was again made explicit in the New York Declaration for Refugees and Migrants, signed by 193 Member States at the first UN Summit on Refugees and Migrants on 19 September 2016.Footnote
79
[58] Although not expressly about temporary refuge, the Declaration acknowledges the disproportionate burden that protracted refugee crises and the resulting large movements of refugees place on countries of refuge and their communities.Footnote
80
[59] The Declaration enshrines the commitment of States ‘to a more equitable sharing of the burden and responsibility for hosting and supporting the world’s refugees’, and empowers the UNHCR to develop and initiate a comprehensive response.Footnote
81
[60]

C. The Case Law of International Courts

Decisions of international and national courts are subsidiary means for the determination of rules of customary law.Footnote
82
[61] Decisions by International courts on the issue of temporary refuge are scarce. The International Court of Justice, although in theory competent to interpret the Refugee Convention, has never been called upon to do so; neither has it been seized to pronounce on a matter relating to temporary refuge.

It is nevertheless worth noting that in the last decade, the European Court of Human Rights has extended its protective role to persons fleeing an armed conflict and for whom ‘substantial grounds’ exist for believing that they would face a ‘real risk’ of treatment contrary to Article 3 of the ECHR.Footnote
83
[62] The European Court of Human Rights recently ruled unanimously that the forced return of three asylum applicants (one stateless Palestinian from Syria and two Syrian nationals) to Syria would violate their right to life and lead to a real risk of torture or of inhuman or degrading treatment under the ECHR.Footnote
84
[63] This was the first judgment by the European Court of Human Rights in the context of the Syrian conflict (since most European countries do not at present carry out involuntary returns to Syria but process Syrian claims). The Court accepted that the applicants ‘originated from Aleppo and Damascus, where heavy and indiscriminate fighting has been raging since 2012’Footnote
85
[64] and concluded that ‘if the applicants were expelled to Syria, it would be in breach of Articles 2 and/or 3 of the Convention’.Footnote
86
[65]

The Court also referred to a policy summary published by the UK Home Office in 2014 according to which ‘Internal relocation within Syria to escape any risk from indiscriminate violence is extremely unlikely to be possible or reasonable’ due to the unpredictability of the violence, the humanitarian situation for internally displaced, and the very limited ability to move safely within Syria.Footnote
87
[66]

Whilst only safeguarding the applicants against their refoulement to Syria, it may be argued that, read in conjunction with other judgments of the European Court of Human Rights on minimum standards of protection expected to be provided to asylum seekers in the country of return,Footnote
88
[67] this finding requires contracting parties to guarantee admission to their territory and access to certain basic rights (both of which are also core elements of the rule of temporary refuge).

In conclusion, the analysis above indicates that temporary refuge has become a cornerstone of the response of States in cases of large-scale influx of refugees. The rule is rooted in shared responsibility and the search for durable solutions through international cooperation. Its scope includes a duty on all States to offer immediate admission to territory for a limited duration (usually the duration of the conflict). It also includes an obligation to provide certain minimum rights, including non-refoulement and basic socio-economic rights, until a more durable solution is found (eg, asylum, resettlement, or voluntary repatriation). Its normative value (and clear roots in shared responsibility) is further set out in UNGA declarations and resolutions UNHCR EXCOM conclusions, and regional instruments. That there is only scant authority in the case law of international courts does not undermine this conclusion.

References

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