Chapter 6 - Lack of Protection in the Country of Origin

Summary

INTRODUCTION

International refugee protection is surrogate protection in cases in which the country of origin fails to provide protection from persecution for one of the Refugee Convention grounds. Thus, international refugee protection is premised on the absence of national protection. This chapter examines such lack of protection in countries of origin which are experiencing an armed conflict.

LACK OF PROTECTION

TEXTUAL AND CONCEPTUAL BASES

The refugee definition in Article 1A(2) Refugee Convention states that a refugee claimant must be outside the country of his or her nationality or, in the case of stateless persons, the country of habitual residence and must be unable or, owing to such well-founded fear, unwilling to avail him- or herself of the protection of that country. Thus, a refugee claimant must lack the protection of the country of origin, either because such protection is unavailable or because of an unwillingness to avail him- or herself of such protection. The requirement of lack of protection in the country of origin is linked to the well-founded fear of persecution clause because the existence of a well-founded fear of persecution presupposes the lack of national protection from persecution. The context of Article 1A(2) Refugee Convention further emphasises the requirement of lack of protection by the country of origin: Article 1C addresses cessation of refugee status in cases where protection by the country of origin becomes available again, thereby showing that refugee protection presupposes the lack of national protection. Moreover, the Refugee Convention's object and purpose of providing for international protection imply that States parties to the Refugee Convention are only obliged to provide refugee protection if adequate national protection is lacking. Hence, the textual and conceptual bases of the requirement that a refugee must lack the protection of the country of origin can be found in the refugee definition's wording, context and object and purpose.

It is important to distinguish between refugee protection claims which concern persecution at the hands of the country of origin and claims that relate to persecution by non-State actors. In cases in which persecution emanates from the State, the State's unwillingness to provide protection is presumed.