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Temporary Protection of Refugees: Elements of a Formalized Regime

Published online by Cambridge University Press:  27 February 2017

Joan Fitzpatrick
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Extract

Temporary protection of refugees (TP) gained surprising prominence during the 1990s as a response to forced migration, at times seeming poised to displace the regime based on the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol. The unprecedented Humanitarian Evacuation Programme to airlift Kosovar refugees to temporary safety in European and more distant states exemplifies TP’s appeal and adaptability. The Kosovo experience, by restoring faith that some mass influxes are genuinely temporary, may reinvigorate enthusiasm for TP, which had flagged during the endgame to the Bosnian refugee crisis.

Type
Research Article
Information
American Journal of International Law , Volume 94 , Issue 2 , April 2000 , pp. 279 - 306
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Copyright © American Society of International Law 2000

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References

* Jeffrey & Susan Brotman Professor of Law, University of Washington School of Law. I wish to thank the University of Washington Law School Foundation for research support.

1 Convention Relating to the Status of Refugees, July 28, 1951, 189 UNTS 150 (entered into force Apr. 22, 1954). In 1967 a Protocol was adopted to extend the Convention temporally and geographically. Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 UST 6223, 606 UNTS 267 (entered into force Oct. 4, 1967). For proposals to reformulate refugee protection with primary emphasis on regional temporary protection, see James C. Hathaway & R. Alexander Neve, Making International Refugee Law Relevant Again: A Proposal for Collectivized and Solution-Oriented Protection, 10 Harv. Hum. Rts. J. 115 (1997); Peter H. Schuck, Refugee Burden-Sharing: A Modest Proposal, 22 Yale J. Int’l L. 243 (1997).

2 This program was coordinated by the United Nations High Commissioner for Refugees (UNHCR) and the International Organization for Migration (IOM), with the aim of relieving Macedonia. The high commissioner observed to the Security Council that this program has “no precedent in UNHCR’s history.” Briefing by Mrs. Sadako Ogata, United Nations High Commissioner for Refugees [hereinafter UNHCR], to the Security Council (May 5, 1999) (visited May 6, 1999).

3 By August 5, 1999, nearly 750,000 Kosovars had been repatriated, including 33,500 from countries outside the region (of whom half were among the 90,000 evacuated by UNHCR-IOM). UNHCR, KOSOVO Crisis Update (Aug. 6, 1999) . On the trend toward durable asylum for Bosnian TP beneficiaries in Europe, see text infra at notes 76, 130–32, 191. On the inability of the Council of the European Union to agree on proposed joint action on TP following the Bosnian crisis, see text infra at notes 19, 122.

4 Organization of African Unity, Convention on the Specific Aspects of Refugee Problems in Africa, opened for signature Sept. 10, 1969, 1000 UNTS 46 (entered into force June 20, 1974) [hereinafter OAU Convention].

5 See Executive Committee of the High Commissioner’s Programme, Conclusion No. 19 (XXXI) on Temporary Refuge (1980) [hereinafter Conclusion No. 19].

6 See generally The New Asylum-Seekers (David A. Martin ed., 1988).

7 See text infra at notes 121–22 for a description of informal consultations coordinated by UNHCR and draft standards proposed by the European Commission.

8 U.S. Will Accept 20,000 Refugees, Gore Says in Speech at Ellis Island; Kosovars Are to Be Paired with Volunteers, Relatives Already Living in U.S., Balto. Sun, Apr. 22, 1999, available in LEXIS, News Library, Majpap File. One factor in the selection of Kosovar refugees for evacuation to the United States was local family ties. Immigration and Naturalization Service, U.S. Dep’t of Justice, INS Fact Sheet: INS Processing for Kosovar Albanians (May 5, 1999).

9 Admission as a refugee under §207 of the Immigration and Nationality Act (INA), 8 U.S.C. §1157, brings with it a potential opportunity to adjust one’s status to lawful permanent resident after one year. INA §209, 8 U.S.C. §1159 (1994 & Supp. IV 1999).

10 Temporary protected status (TPS) was adopted in 1990. Immigration Act of 1990, Pub. L. No. 101-649, §302, 104 Stat. 4978, 5030 (codified at 8 U.S.C. §1254a (1994 & Supp. IV 1999)). Congress indicated a strong disinclination to treat TPS as an admissions device. 8 U.S.C. §1254a(c) (5) provides: “Nothing in this section shall be construed as authorizing an alien to apply for admission to, or to be admitted to, the United States in order to apply for temporary protected status under this section.”

11 Amnesty International surveyed 20 states receiving Kosovar evacuees and noted that leave to remain ranged from the indefinite (Canada and the United States) to renewable three-month permits (Australia, France, and Germany). The report also indicated that “some will be allowed to work, [and entitled] to family reunification, to schooling and to social assistance. In other host countries, freedom of movement will be restricted to living in refugee camps or settlements, and no other fundamental rights such as the right to work will be granted.” Amnesty International, Former Yugoslav Republic of Macedonia: The Protection of Kosovo Albanian Refugees 18 (AI Index No. EUR 65/03/99, 1999).

12 Article 1A(2) of the 1951 Convention, supra note 1, defines a refugee as a person, outside his or her country of nationality or habitual residence, who has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, and is unable or unwilling to return to that country as a result of that fear.

13 The 1951 Convention is the subject of frequent interpretation and application by national courts and administrative agencies charged with refugee status determination. Implementation occurs within domestic legal systems and is not supervised by a treaty body or international court. For examples of application of the 1951 Convention by national courts, see infra notes 107 (UK House of Lords) and 101, 104 (U.S. Supreme Court).

14 An absolute sovereign power to control the presence of foreigners and its roots in pre-20th-century public international law are described at length in Fong Yue Ting v. United States, 149 U.S. 698 (1893).

15 Mainstream human rights law is developing norms for non-refoulement that replicate this aspect of refugee protection, especially in relation to antitorture provisions. See Chahal v. United Kingdom, 1996-V Eur. Ct. H.R. 1831 (violation of Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms), summarized in 92 AJIL 70 (1998).

16 See Gregor Noll, Prisoner’s Dilemma in Fortress Europe: On the Prospects for Equitable Burden-Sharing in the European Union, 1997 Germ. Y.B. Int’l L. 405. Astri Suhrke notes, however, that states are not generally prisoners of refugee crises, as even weak states manage to deflect refugee flows. Astri Suhrke, Burden-Sharing During Refugee Emergencies: The Logic of Collective Versus National Action, 11 J. Refugee Stud. 396, 401–03 (1998).

17 In Switzerland a tightening of the asylum law was approved in a June 1999 referendum by a vote of 70%. Hardening of Asylum Policy Is Approved by a Large Majority, Migration News Sheet, No. 196/99-07, July 1999, at 13. A survey of Swiss public opinion in 1999 indicated that asylum was the primary issue of concern to 46% of the respondents, up from 15% in 1988 and higher than the percentage primarily concerned with unemployment. Majority of Swiss People Want Kosovars to Leave Before the End of This Year, id., No. 197/99-08, Aug. 1999, at 11.

18 Following study of normative gaps regarding the treatment of internally displaced persons, the United Nations Commission on Human Rights adopted this relatively soft approach. See Guiding Principles on Internal Displacement, UN Doc. E/CN.4/1998/53/Add.2. The unhcr has tentatively floated the possibility of guiding principles on temporary protection. UNHCR, Note on International Protection, UN Doc. A/AC.96/830, para. 54 (1994) [hereinafter UNHCR 1994 Note].

19 In June 1998, the Commission submitted a draft proposal concerning temporary protection, which has not yet been adopted by the Council of the European Union. Amended Proposal for a Joint Action concerning Temporary Protection of Displaced Persons, COM(98) 372 final [hereinafter Amended Proposal]. For discussion of the background to this proposal, see text infra at note 122.

20 Consolidated Version of the Treaty on European Union and Consolidated Version of the Treaty Establishing the European Community, Feb. 7, 1992, Mar. 25, 1957, Oct. 2, 1997, Art 63(2) (a) (ex-Art.73k), 37 ILM 56, 90 (1998) [hereinafter Treaty of Amsterdam].

21 Id., Art. 63(2) (b) (the Treaty avoids the terms “burden sharing” and “responsibility sharing,” referring instead to “a balance of effort between Member States in receiving and bearing the consequences of receiving refugees and displaced persons”).

22 Id., Art. 63.

23 See Gil Loescher, Beyond Charity: International Cooperation and the Global Refugee Crisis 68–71 (1993).

24 See text infra at notes 29–34.

25 See supra note 2 and corresponding text.

26 OAU Convention, supra note 4, Art. 1(2).

27 The pushbacks of Liberian refugees in 1996 and the mass refoulements in unsafe conditions from Tanzania and the former Zaire to Rwanda and Burundi signaled a shift in African attitudes, apparently influenced by the failure of northern states to respond toward refugees in a generous spirit. See Liberian Refugee Crisis: Africa Reconsidering Its Tradition of Hospitality, Refugee Rep., July 31, 1996, at 1; Amnesty International, Rwanda: Human Rights Overlooked in Mass Repatriation 17 (AI Index No. AFR 47/02/97, 1997); Amnesty International, Great Lakes Region: Still in Need of Protection: Repatriation, Refoulement and the Safety of Refugees and the Internally Displaced (AI Index No. AFR 02/07/97, 1997); Ray Wilkinson, Thirty Years After … The OAU Refugee Convention Was a Model of Generosity, but Times Have Changed, Refugees, No. 115, 1999, at 4.

28 However, persons subject to prima facie status determination may be required to live in camps, while persons completing individualized status determination may enjoy more freedom of movement in states such as Kenya. See Jennifer Hyndman & Bo Viktor Nylund, UNHCR and the Status of Prima Facie Refugees in Kenya, 10 Int’l J. Refugee L. 21, 35–37 (1998).

29 See Conclusion No. 19, supra note 5; Executive Committee of the High Commissioner’s Programme, Conclusion No. 22 (XXXII) on Protection of Asylum Seekers in Situations of Large-Scale Influx (1981) [hereinafter Conclusion No. 22].

30 See Pirkko Kourula, Broadening the Edges: Refugee Definition and International Protection Revisited 104–06 (1997).

31 See id. at 102–03; see also UNHCR 1994 Note, supra note 18, para. 38.

32 See Kourula, supra note 30, at 104–06.

33 The terminology favored at the time was “temporary refuge.” See Conclusion No. 19, supra note 5.

34 See Guy Goodwin-Gill, The Refugee in International Law 200–02 (2d ed. 1996).

35 The declaration was adopted at the conclusion of a colloquium organized by the National University of Colombia and the Centro Regional de Estudios del Tercer Mundo in Cartagena in November 1984. Cartagena Declaration on Refugees, Nov. 1984, reprinted in 2 UNHCR, Collection of International Instruments and Other Legal Texts Concerning Refugees and Displaced Persons: Regional Instruments 206, UN Sales No. GV.E.96.0.2 (1995) [hereinafter Cartagena Declaration].

36 Id., pt. III, para. 3 states:

[The Colloquium reiterates] that, in view of the experience gained from the massive flows of refugees in the Central American area, it is necessary to consider enlarging the concept of a refugee, bearing in mind, as far as appropriate and in the light of the situation prevailing in the region, the precedent of the OAU Convention (article I, paragraph 2) and the doctrine employed in the reports of the Inter-American Commission on Human Rights. Hence the definition or concept 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.

37 1984–1985 Inter-Am. C.H.R. Ann. Rep., OEA/Ser.L/II.66, doc.10 rev.1, at 190–93 (1985).

38 See generally Kourula, supra note 30.

39 For a description of European practice prior to the crisis in the former Yugoslavia, see Johan Cels, Responses of European States to de facto Refugees, in Refugees and International Relations 187 (Gil Loescher & Laila Monahan eds., 1989). See also Joan Fitzpatrick, Flight from Asylum: Trends Toward Temporary “Refuge” and Local Responses to Forced Migrations, 35 Va. J. Int’l L. 13, 18–22 (1994).

40 In Germany, for example, a duldung is a tolerated residence, approved by the local Aliens Office. It does not provide access to education, language lessons, family unification, or travel documents; the recipient may receive a work permit for a specific job for which no Germans or EU citizens are available. See Karsten Lüthke, Asylum in Germany 16–17 (1994).

41 Extended voluntary departure was an administrative practice permitting selected groups to avoid deportation, and was vulnerable to criticism for political bias. See Fitzpatrick, supra note 39, at 44–49.

42 Termination of refugee status under Article 1C(5) of the 1951 Convention requires proof of changed circumstances that are fundamental, stable, durable, and effective. See Executive Committee of the High Commissioner’s Programme, Conclusion No. 69 (XLIII) on Cessation of Status (1992) [hereinafter Conclusion No. 69].

43 See Volker Türk, The Role of the United Nations High Commissioner for Refugees (UNHCR) in the Development of International Refugee Law (paper presented at University of Nottingham, Nov. 1996).

44 See Goodwin-Gill, supra note 34, at 9.

45 In 1959 the General Assembly authorized the unhcr to use its “good offices” to assist “refugees who do not come within the competence of the United Nations.” GA Res. 1388, UN GAOR, 14th Sess., Supp. No. 16, at 20, UN Doc. A/4354 (1959). In 1961 the General Assembly requested that the unhcr seek protection for civilians fleeing African countries engaged in struggles for independence. GA Res. 1673, UN GAOR, 16th Sess., Supp. No. 17, at 28, UN Doc. A/5100 (1961). The General Assembly in 1975 authorized the unhcr to act on behalf of mass influxes of persons who fell outside the Convention definition but who were in “analogous” situations as a result of man-made events. GA Res. 3454, UN GAOR, 30th Sess., Supp. No. 34, at 92, UN Doc. A/10034 (1975).

46 unhcr Report, UN GAOR, 40th Sess., Supp. No. 12, para. 22, UN Doc. A/40/12 (1985).

47 unhcr 1994 Note, supra note 18, para. 31.

48 In 1990 Congress decided to codify a form of nationality-based relief as TPS, extending it statutorily to nationals of El Salvador and otherwise granting discretion to the Attorney General to designate certain other nationals to receive temporary leave to remain. See supra note 10.

49 TPS is granted in fixed increments of time, such as 6, 12, or 18 months, to nationals of the designated state who have arrived in the United States as of a certain date prior to the grant of TPS. At the end of a period of TPS, the Attorney General will decide whether to renew protection for those already covered (and in rare cases to extend protection to nationals arriving after the initial cutoff date), or whether to permit TPS to expire for a particular group. See Susan Forbes Martin, Andy Schoenholtz, & Deborah Waller Myers, Temporary Protection: Towards a New Regional and Domestic Framework, 12 Geo. Immigr. L.J. 543, 550 tbl. 1 (1998).

50 Pursuant to §209 of the U.S. Immigration and Nationality Act, 8 U.S.C. §1159 (1994 & Supp. TV 1999), for example, recipients of asylum may apply for permanent residence one year after receiving a grant of asylum.

51 Congress mandated that time spent as a beneficiary of TPS would not generally count toward the satisfaction of the required period of residence to qualify for an important form of relief from deportation for long-time nonimmigrant residents of the United States (now termed cancellation of removal, defined at INA §240A(b), 8 U.S.C. §1229b(b) (1994 & Supp. IV 1999)). INA §244(e), 8 U.S.C. §1254a(e) (1994 & Supp. TV 1999).

52 The Attorney General is authorized by 8 U.S.C. §1254a(b) (1) (A), (B), and (C) (1994 & Supp. IV 1999) to designate a foreign state for TPS if she finds that “there is an ongoing armed conflict within the state and, due to such conflict, requiring the return of aliens who are nationals of that state … would pose a serious threat to their personal safety”; that “there has been an earthquake, flood, drought, epidemic, or other environmental disaster in the state resulting in a substantial, but temporary, disruption of living conditions in the area affected” and the foreign state is unable temporarily to handle the return of its nationals or has requested TPS designation; or that “extraordinary and temporary conditions” in the state “prevent aliens who are nationals of the state from returning to the state in safety, unless the Attorney General finds that permitting the aliens to remain temporarily in the United States is contrary to the national interest of the United States.”

53 1951 Convention, supra note 1, Art. 3.

54 See T. Alexander Aleinikoff, Safe Haven: Pragmatics and Prospects, 35 Va. J. Int’l L. 71 (1994).

55 See text supra at note 9 (evacuation of Kosovars).

56 See Fitzpatrick, supra note 39, at 27–40.

57 Communication from the Commission to the Council and the European Parliament on Immigration and Asylum Policies, COM (94) 23 at 7.

58 Humanitarian Issues Working Group of the International Conference on the Former Yugoslavia, Survey on the Implementation of Temporary Protection (Mar. 8,1995) [hereinafter Survey on TP]. See generally Joanne van Selm-Thorburn, Refugee Protection in Europe: Lessons from the Yugoslav Crisis (1998).

59 See van Selm-Thorburn, supra note 58, at 122–25.

60 See Joanne Thorburn, Transcending Boundaries: Temporary Protection and Burden-Sharing in Europe, 7 Int’l J. Refugee L. 459, 469–70 (1995).

61 See Fitzpatrick, supra note 39, at 27–40.

62 TP was recognized as a “flexible and pragmatic means of affording needed protection to large numbers of people fleeing human rights abuses and armed conflict …, who might otherwise have overwhelmed asylum procedures.” unhcr, Note on International Protection, UN Doc. A/AC.96/815, para. 25 (1993).

63 In its Resolution of 25 September 1995 on Burden-sharing with Regard to the Admission and Residence of Displaced Persons on a Temporary Basis, the Council of the European Union singled out as persons of particular concern those held in a prisoner-of-war or internment camp and facing a threat to life or limb; those injured or seriously ill and lacking access to necessary medical care; those under a direct threat to life or limb who could not find safety in their region of origin; those subjected to sexual assault and lacking appropriate treatment; and those coming directly from zones of combat and unable to return safely to homes of origin. 1995 O.J. (C 262) 1, 2, para. 1 (a) [hereinafter 1995 Council Resolution].

64 unhcr 1994 Note, supra note 18, para. 42.

65 See unhcr, The State of the World’s Refugees 1997–98: A Humanitarian Agenda fig. 5.6 (1997) [hereinafter World’s Refugees 1997–98] (stating that as of March 1997, refugees from Bosnia-Herzegovina ranged in numbers from 345,000 in Germany, 253,377 in Yugoslavia, 288,000 in Croatia, 80,012 in Austria, 63,530 in Sweden, 26,667 in Switzerland, 23,500 in the Netherlands, 15,000 in France, 12,000 in Norway, and 8,430 in Italy, to 6,000 in the United Kingdom).

66 See id.

67 A majority of the Serb population has fled from Kosovo, as NATO and the United Nations have been unable to provide adequate protection against reprisals. See Steven Erlanger, After Slow Start, U.N. Asserts Role in Running Kosovo, N.Y. Times, Aug. 11, 1999, at A1 (160,000 ethnic Serbs had left Kosovo in the past year, while 20,000–25,000 remained).

68 See text infra at note 143 (regional emphasis by European Commission).

69 See supra note 15.

70 Dennis Gallagher, Susan Forbes Martin, & Patricia Weiss-Fagen, Temporary Safe Haven: The Need for North American–European Responses, in Refugees and International Relations, supra note 39, at 333; Aristide R. Zolberg, Astri Suhrke, & Sergio Aguayo, Escape from Violence: Conflict and the Refugee Crisis in the Developing World (1989); Deborah Perluss & Joan F. Hartman, Temporary Refuge: Emergence of a Customary Norm, 26 Va. J. Int’l L. 551 (1986) (arguing that protection of forced migrants displaced by armed conflict is mandated by customary law); Janina W. Dacyl, Europe Needs a New Protection System for “Non-Convention” Refugees, 7 Int’l J. Refugee L. 579 (1995).

71 E.g., Kai Hailbronner, Non-Refoulement and “Humanitarian” Refugees: Customary International Law or Wishful Legal Thinking?26 VA. J. Int’l L. 857 (1986).

72 E.g., In re Medina, 19 I & N Dec. 136 (BIA 1988) (no enforceable legal right to non-refoulement for persons fleeing armed conflict who are not recognized as satisfying statutory definition of refugee drawn from 1951 Convention and 1967 Protocol).

73 European Council on Refugees and Exiles [hereinafter ECRE], Position of the European Council on Refugees and Exiles on Temporary Protection in the Context of the Need for a Supplementary Refugee Definition (1997). The Commission separately plans to propose Community legislation on temporary protection and complementary/subsidiary forms of protection, which will likely encompass both humanitarian leave to remain and human rights bars to deportation. Towards Common Standards on Asylum Procedures, paras. 5(6), 5(7), Commission Working Doc. SEC(1999)271 final.

74 ECRE, supra note 73, paras. 2, 4, 8, 10. The European Parliament agrees that temporary protection “is only applicable to crises and massive inflows of displaced persons” and that “forms of protection complementary to refugee status … must … be distinguished from the temporary protection regime.” Resolution on the Harmonisation of Forms of Protection Complementing Refugee Status in the European Union at pmbl. para. M, & para. 18, 1999 O.J. (C 150) 203.

75 See Hyndman & Nylund, supra note 28, at 30–33.

76 See Khalid Koser, Martha Walsh, & Richard Black, Temporary Protection and the Assisted Return of Refugees from the European Union, 10 Int’l J. Refugee L. 444 (1998).

77 See text supra at note 65.

78 Hathaway & Neve, supra note 1.

79 Suhrke, supra note 16, at 408–09, notes that Austria, Germany, and Sweden, the Western European states that were proportionately the most burdened by Bosnian arrivals, led the responsibility-sharing discussion in the early 1990s, and were met with opposition from lightly burdened France and the United Kingdom.

80 Three terms are in use to denote this concept: “burden sharing,” “responsibility sharing,” and “international solidarity.” As “burden sharing” has a pejorative ring and “international solidarity” is vague, I will primarily use the term “responsibility sharing.”

81 unhcr, International Solidarity and Burden-Sharing in All Its Aspects: National, Regional and International Responsibilities for Refugees, UN Doc. A/AC.96/904, paras. 3–6 (1998).

82 See text infra at notes 94–95 for discussion of the EU resolution and decision on burden sharing.

83 See Noll, supra note 16, at 422–23; Suhrke, supra note 16, at 399, 413.

84 UN Charter Art. 1 (3), (4).

85 1951 Convention, supra note 1, pmbl. para. 4.

86 United Nations Declaration on Territorial Asylum, GA Res. 2312, UN GAOR, 22d Sess., Supp. No. 16, at 81, Art. 2(2), UN Doc. A/6716 (1967).

87 OAU Convention, supra note 4, Art. 11(4).

88 Conclusion No. 22, supranote 29, paras. I(3), II(B)(2)(c).

89 Id., para. IV.

90 The Executive Committee of the High Commissioner’s Programme, Conclusion No. 52 (XXXIX) on International Solidarity and Refugee Protection (1988), calls on states to assist the UNHCR in its protection functions and to abide by their own obligations to safeguard the right to seek and enjoy asylum and to respect the norm of non-refoulement.

91 International Conference on Indo-Chinese Refugees, Geneva, 13–14 June 1989, Declaration and Comprehensive Plan of Action, in Note by the Secretary-General, UN Doc. A/CONF.148/2 (1989) [hereinafter Comprehensive Plan of Action]; see Suhrke, supra note 16, at 405–06.

92 Cirefca is the Spanish acronym for the International Conference on Central American Refugees, convened in May 1989 and concluded in 1994. See Kourula, supra note 30, at 152–53.

95 Suhrke, supra note 16, at 399–403.

94 1995 Council Resolution, supra note 63.

95 Council Decision of 4 March 1996 on an Alert and Emergency Procedure for Burden-sharing with Regard to the Admission and Residence of Displaced Persons on a Temporary Basis, 1996 O.J. (L 63) 10.

96 ECRE, Comments from theEuropean Council on Refugees and Exiles on the 1995 “Burden-Sharing” Resolution and Decision Adopted by the Council of the European Union, para. 3, conclusions iii-vi (June 1996) (visited Feb. 11, 1999).

97 See text supra at notes 21–22.

98 See Hathaway & Neve, supra note 1, at 116–17, 119–23; Fitzpatrick, supra note 39, at 18–22, 27–40.

99 The Commission’s Explanatory Memorandum, infra note 122, para. 8, states:

One very relevant and fundamental characteristic of temporary protection is that it is not a right established by any international instrument: States grant it as an autonomous act, and for the most part national legislation is carefully worded to keep it that way. The proposed joint action does not seek to introduce a new right to seek temporary protection in addition to the existing right to seek asylum. This approach is realistic and takes into account the history of temporary protection in Europe, and stresses the exceptional character of any temporary protection regime.

100 Treaty of Amsterdam, supra note 20, Art. 63(1).

101 Some confused passages in the travaux préparatories of the 1951 Convention concerning mass influx figured in the U.S. Supreme Court’s decision in Sale v. Haitian Centers Council, 509 U.S. 155 (1993). The 1967 Declaration on Territorial Asylum, supra note 86, in its Article 3(2), suggests that the principles of nonrejection at the frontier and non-refoulement might be compromised for “overriding reasons of national security or in order to safeguard the population, as in the case of a mass influx of persons.”

102 For a description of such a mechanism in the United States known as temporary protected status, see text supra at notes 10, 48–52.

103 Grants of humanitarian leave to remain often dramatically outnumber successful claims to Convention refugee status. See World’s Refugees 1997–98, supra note 65, tbl. 2 (for example, in 1996 Norway granted Convention status to 6 applicants and humanitarian status to 1,198).

104 The unhcr issued a Handbook in 1979 to guide interpretation, but states do not consistently follow it. Hand-book on Procedures and Criteria for Determining Refugee Status, UN Doc. HCR/PRO/4 (1979) [hereinafter unhcr Handbook]. The U.S. Supreme Court recently reiterated its view that, while the Handbook provides useful guidance, it is not binding on administrative or judicial authorities in the United States. INS v. Aguirre-Aguirre, 119 S.Ct. 1439, 1446–47 (1999) (concerning interpretation of Convention Article 1F(b), the exclusion ground for serious nonpolitical crimes).

105 Asylum claims filed by Algerians in France in 1994 were successful in only 1% of the cases. See ECRE, ECRE Recommendations on the Treatment of Algerian Refugees and Asylum Seekers in Europe (June 1995) (visited Feb. 11, 1999). During a period of great political trauma in Haiti between 1989 and 1997, only 9.3% of asylum applications by Haitians, decided by U.S. immigration judges, were granted. See Asylum Cases Decided by Immigration Judges Approved or Denied, by Selected Country of Origin, FY 89–97, Refugee Rep., Dec. 31, 1997, at 7. Of 20,347 asylum applications filed by Liberians in 15 Western European states between 1991 and 1995, only 214 succeeded. World’s Refugees 1997–98, supra note 65, at 184.

106 There are approximately 19 high-intensity (in excess of 1,000 annual casualties) and 40 low-intensity (annual casualties between 100 and 1,000) internal armed conflicts. See Minimum humanitarian standards: Analytical report of the Secretary-General submitted pursuant to Commission on Human Rights resolution 1997/21, UN Doc. E/CN.4/1998/87, para. 18. The central governmental structures in states such as Somalia, Liberia, Afghanistan, and the former Zaire in recent years have been extremely unstable or nonexistent.

107 See, e.g., a decision by the UK House of Lords holding that clan warfare in Somalia posed only generalized danger to a member of a particular clan. Regina v. Secretary of State for the Home Department ex parte Adan, [1999] 1 App. Cas. 293, reprinted in 37 ILM 1090 (1998). The House of Lords affirmed the denial of refugee status but noted that Adan and his family had received a grant of humanitarian leave to remain. 37 ILM at 1100.

108 See Goodwin-Gill, supra note 34, at 77.

109 See Walter Kälin, Refugees and Civil Wars: Only a Matter of Interpretation? 3 Int’l J. Refugee L. 435 (1991); Mark R. von Sternberg, The Plight of the Non-Combatant in Civil War and the New Criteria for Refugee Status, 9 Int’l J. Refugee L. 169 (1997) (discussing narrow and liberal interpretations of refugee definition in the context of internal armed conflict).

110 See Council Joint Position of 4 March 1996 on the basis of Article K.3 of the Treaty on European Union on the Harmonized Application of the Definition of the Term “Refugee” in Article 1 of the Geneva Convention of 28 July 1951 Relating to the Status of Refugees, 1996 O.J. (L 63) 2, 5, paras. 5.2, 6 (generally excluding persecution by non-state actors unless “encouraged or permitted” by the state; persecution may be committed during armed conflict by de facto authorities who are in control of territory where the state cannot afford protection). The unhcr Handbook, supra note 104, para. 65, stresses a lack of effective protection by the state of origin as the basis for refugee status, rather than the formal status of the persecutor. The United Kingdom Court of Appeal ruled that several asylum seekers could not be returned to France or Germany, because those states would fail to recognize meritorious claims of persecution by nongovernmental forces. Regina v. Secretary of State for the Home Department ex parte Adan/Subskaran/Aitseguer, [1999] 3 W.L.R. 1274.

111 See Stella Tandai Makanya, Voluntary Repatriation in Africa in the 1990s: Issues and Challenges, Int’l J. Refugee L., July 1995, at 172 (spec, issue); World’s Refugees 1997–98, supra note 65, at 143–47.

112 1951 Convention, supra note 1, Art. 1C(5).

113 See World’s Refugees 1997–98, supra note 65, at 59–61.

114 Id. at 155; see also U.S. Committee for Refugees, World Refugee Survey 1998, at 83 (1998).

115 Interestingly, a 1978 proposal to codify asylum in the United States, introduced by the influential Senator Edward Kennedy, would have encompassed within the statutory refugee definition not only persons meeting the criteria of Article 1A(2) of the Refugee Convention, but also “displaced persons” uprooted by catastrophic natural calamity, civil disturbance, or military operations. Refugee and Displaced Persons Act of 1978, S. 2751, 95th Cong. §2 (a). Such persons were not included in the definitional provisions of the Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102.

116 See Kourula, supra note 30, at 157–62, 177–83.

117 See Goodwin-Gill, supra note 34, at 199–202; Morten Kjaerum, Temporary Protection in Europe in the 1990s, 6 Int’l J. Refugee L. 444 (1994).

118 See Goodwin-Gill, supra note 34, at 200; Van Selm-Thorburn, supra note 58.

119 See text infra at notes 121–22.

120 UNHCR 1994 Note, supra note 18, para. 47.

121 Executive Committee of the High Commissioner’s Programme, Progress Report on Informal Consultations on the Provision of International Protection to All Who Need It, UN Doc. EC/47/SC/CRP.27, para. 4(f) (1997) [hereinafter Progress Report].

122 Amended Proposal, supra note 19. An earlier version had been circulated in March 1997, with an accompanying Explanatory Memorandum. Proposal to the Council for ajoint Action based on Article K.3(2)(b) of the Treaty on European Union Concerning Temporary Protection of Displaced Persons, COM (97) 93 final.

123 Amended Proposal, supra note 19, Art. 1(b).

124 The inclusion of natural disasters might prove controversial, as it distances TP from the refugee law paradigm.

125 The last category would include persons subject to the exclusion clauses of the 1951 Convention, supra note 1, such as those who have committed war crimes, crimes against humanity, or particularly serious nonpolitical crimes within the meaning of Article 1F(a) and (b).

126 See text supra at note 74.

127 Article 1(c) defines “mass flight” as “the sudden arrival within the Union of a significant number of persons from a given country or geographical region who request international protection, or a strong probability that such a situation may soon arise.” Amended Proposal, supra note 19, Art. 1 (c). Moreover, the existence or imminence of a mass influx is determined by the Council, a political body, rather than by objective criteria. Id., Art. 3(1).

128 Conclusion No. 22, supra note 29, para. II(B) (2), thus stressed nonrejection at the frontier and certain “minimum basic human standards.”

129 See Kourula, supra note 30, at 106–09; see also Marjoleine Zieck, unhcr and Voluntary Repatriation of Refugees: A Legal Analysis 463–68 (1997).

130 See Koser, Walsh, & Black, supra note 76 (most EU states, with the exception of Germany, have not mandated repatriation for Bosnian beneficiaries of TP and have granted more durable status).

131 U.S. refugee admission numbers, for example, have been redirected toward Bosnians in recent years. Of 70,085 refugees admitted for resettlement in fiscal year 1997, 21,357 were Bosnian. Refugees Admitted to the United States by Nationality, FY 84–97, Refugee Rep., Dec. 31, 1997, at 10–11. As of March 1997, 24,000 Bosnian refugees were in Australia. World’s Refugees, 1997–98, supra note 65, fig. 5.6.

132 See Koser, Walsh, & Black, supra note 76, at 449–53.

133 The preamble to the European Commission’s Amended Proposal, supra note 19, states in part: “Whereas it is also necessary to lay down the minimum content of the rights relating to the status of the displaced persons who will be placed under such a regime of temporary protection ….”

134 See supra note 101 (discussing Sale v. Haitian Centers Council); see also Goodwin-Gill, supra note 34, at 121–24, 139–45.

135 Declaration on Territorial Asylum, supra note 86, Art. 3(2).

136 See Goodwin-Gill, supra note 34, at 140–41.

137 Conclusion No. 22, supra note 29, para. II(A)(1)–(2); UNHCR 1994 Note, supra note 18, paras. 30–57; Progress Report, supra note 121, para. 4(k).

138 The Humanitarian Evacuation Programme instituted by the UNHCR was consciously designed to induce frondine states, particularly Macedonia, to keep their borders open to Kosovar refugees. See text supra at note 2.

139 See supra note 10.

140 See Martin, Schoenholtz, & Myers, supra note 49, at 549.

141 See Goodwin-Gill, supra note 34, at 121–37.

142 Progress Report, supra note 121, para. 4(k).

143 1995 Council Resolution, supra note 63, pmbl. (referring to a UNHCR “principle of regionalization”), para. 2 (noting that harmonized action may be necessary “if help and adequate protection are not available in the region of origin or if the European Union is so close to the region concerned that it could itself be considered as belonging to the region of origin”).

144 Beneficiaries have included nationals of Rwanda, Sierra Leone, and Bosnia-Herzegovina, as well as closer-by Montserrat. See Martin, Schoenholtz, & Myers, supra note 49, at 550.

145 Thus, Congress mandated TPS for Salvadorans, after a long and highly politicized controversy, in the original TPS legislation. Pub. L. No. 101-649, supra note 10. The Attorney General never extended TPS to Haitians, who are present in the United States in substantial numbers. When certain Haitian asylum seekers were granted a special adjustment of status to lawful permanent residents in 1998, it was estimated that 50,000 persons would benefit. See Haitian Refugee Immigration Fairness Act of 1998, Pub. L. No. 105-277, §§901–904, 112 Stat. 2681, 2681-538 to 2681-542; INS Extends Work Authorization for Haitians Granted Deferred Enforced Departure, 75 Interpreter Releases 1725, 1725 (1998).

146 From April 5 through June 29, 1999, 90,298 Kosovars were evacuated to 29 states, including such distant locales as Australia, Canada, Iceland, Israel, and the United States. unhcr, Kosovo Crisis Update (June 30, 1999), supra note 3. Evacuations initially proceeded slowly; while European states had pledged to relocate 85,000 Kosovars, by May 5, 1999, only 28,000 had been evacuated. As a result, the high commissioner requested that non-European states activate their quotas. Briefing by Mrs. Sadako Ogata, supra note 2.

147 For example, international aid officials found it necessary to institute “go-and-see” helicopter visits to refugee camps in southern Albania for village leaders among the refugees in Albania, in order to induce groups of refugees to leave the unsafe border area. unhcr, Kosovo Crisis Update (Apr. 28, 1999), supra note 3.

148 The role of the Hutu militants and former Rwandese military in the camps of the former Zaire and Tanzania has received much attention, but militarization of refugee camps has been widely experienced in other regions, including Asia and Latin America. The general problem was addressed by the Executive Committee of the High Commissioner’s Programme in Conclusion No. 48 (XXXVIII) on Military or Armed Attacks on Refugee Camps and Settlements (1987).

149 Kosovar refugees were subjected to repeated abuse by Macedonian authorities, including a reported incident on May 5, 1999, during which 1000 refugees were forcibly returned by Macedonian border guards from the Macedonian border to Kosovo, where they were seen being beaten by Serbian troops. unhcr, Kosovo Crisis Update (May 6, 1999), supra note 3. Macedonian authorities also engaged in chaotic evacuations of Kosovars from the border region, separating many families. See John Daniszewski & Elizabeth Shogren, Crisis in Yugoslavia; A Silence Settles Along Borders as Refugees Vanish, L.A. Times, Apr. 8, 1999, available in lexis, News Library, Majpap File.

150 See Amnesty International, supra note 11, at 1–7; Davis Rohde, Macedonian Troops Said to Push 1,000 Refugees Back, N.Y. Times, May 7, 1999, at A12 (quoting Macedonian Defense Minister Nikola Kljusev as saying, “There can be a balance established between a number who are evacuated and the number of refugees who are allowed into our country.”).

151 See, e.g., Hathaway & Neve, supra note 1; Schuck, supra note 1. For a critique of these approaches, see Deborah Anker, Joan Fitzpatrick, & Andrew Shacknove, Crisis and Cure: A Reply to Hathaway/Neve and Schuck, 11 Harv.Hum. Rts. J. 295 (1998).

152 Substantial electoral gains were achieved by far right, anti-immigrant political parties in 1999 in Austria and Switzerland. See Anne Swandson, Anxieties over Immigration Are Reflected in Election Results, Seattle Times, Oct. 30, 1999, at A3.

153 See text supra at notes 63, 94–95 (EU resolution and decision on burden sharing). However, the European Union was unable to agree on a coordinated response or common standards of treatment for Kosovar evacuees. See ECRE, Europe Far from United in This Hour of Deepest Need, News Release (Apr. 9, 1999).

154 See Hathaway & Neve, supra note 1; Schuck, supra note 1.

155 Amended Proposal, supra note 19.

156 Treaty of Amsterdam, supra note 20.

157 See supra note 122.

158 1951 Convention, supra note 1, Arts. 1C, 1A(2), 33(1). Conclusion No. 69, supra note 42, para, (e), nevertheless urges that local settlement be extended to hardship cases involving compelling reasons arising out of past persecution.

159 In 1996, for example, Congress amended the asylum provisions of the INA to emphasize that” [a]sylum … does not convey a right to remain permanendy in die United States, and may be terminated” under certain conditions. INA §208(c)(2), 8 U.S.C. §1158(c)(2) (1994 & Supp. IV 1999).

160 Termination of TP can be governed by standards similar to cessation of Convention refugee status. See Joan Fitzpatrick, The End of Protection: Legal Standards for Cessation of Refugee Status and Withdrawal of Temporary Protection, 13 Geo. Immigr. L.J. 343 (1999).

161 See Walter Kälin, Towards a Concept of Temporary Protection, annex (unpublished study for unhcr, 1996) (list of 107 conflicts between 1949 and 1994 of less than a five-year duration) (on file with author).

162 See World’s Refugees 1997–98, supra note 65, at 143–64.

163 Germany has managed to induce the majority of its Bosnian TP beneficiaries to be repatriated. unhcr, The World: Germany (of the 320,000 Bosnian TP beneficiaries sheltered by Germany, 200,000 were voluntarily repatriated, 26,000 were resetded (mainly to the United States), and 2,900 were deported, as of March 1999) <> (visited May 6,1999). Reliable statistics on repatriation by recognized refugees are not available.

164 See Goodwin-Gill, supra note 34, at 184; World’s Refugees 1997–98, supra note 65, at 218–19.

165 For example, under the Comprehensive Plan of Action, supra note 91.

166 See Survey on TP, supra note 58, at 60–62.

167 See Amended Proposal, supra note 19, Arts. 4, 10.

168 TPS in the United States is subject to such periodic extensions. See Martin, Schoenholtz, & Myers, supra note 49, at 547–50.

169 See supra note 27 (repatriation of Rwandese Hutus from the former Zaire and Tanzania).

170 The Commission would draw its information from its own delegations, as well as from external sources such as international organizations and NGOs. Explanatory Memorandum, supra note 122, para. 16.

171 Amended Proposal, supra note 19, Art. 4.

172 The Commission noted in March 1997 that “safe return under humane conditions” was intended to be the equivalent to “return in safety and with dignity,” as defined in the unhcr’s 1996 Handbook on Voluntary Repatriation. The Commission suggests that respect for the following rights would permit safe return:

— the right to return freely to homes of origin;

— physical and legal safety;

— nondiscrimination and respect for fundamental rights such as freedom of movement, respect for family life, freedom of opinion and religion, and property rights;

— assistance and shelter to meet basic needs and reintegration of returnees, who often require international assistance;

— a process for monitoring the condition of returnees and for protection at the national and international levels of their human rights.

Explanatory Memorandum, supra note 122, para. 19.

173 Amended Proposal, supra note 19, Art. 13.

174 Explanatory Memorandum, supra note 122, paras. 18–19.

175 Amended Proposal, supra note 19, Art. 4; Explanatory Memorandum, supra note 122, para. 20.

176 Progress Report, supra note 121, para. 4(n).

177 ECRE, supra note 73, para. 17.

178 ECRE’s proposed supplemental definition would encompass:

a) persons who have fled their country, and/or who are unable or unwilling to return there because their lives, safety or freedom are threatened by generalised violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order; and

b) persons who have fled their country, and/or are unwilling to return there, owing to a well-founded fear of being tortured or of being subjected to inhuman and degrading treatment or punishment or violations of other fundamental human rights.

Id., para. 3 (emphasis omitted).

179 Id., para. 17.

180 Id., para. 3.

181 Explanatory Memorandum, supra note 122, para. 19.

182 Progress Report, supra note 121, para. 4(o).

183 See unhcr Handbook, supra note 104, para. 91.

184 The right to return to homes of origin, especially those in areas dominated by a rival ethnic group, has not been effectively implemented under the Dayton Peace Agreement. See International Crisis Group, Going Nowhere Fast: Refugees and Internally Displaced Persons in Bosnia (Apr. 30, 1997) <>; Eric Rosand, The Right to Return Under International Law Following Mass Displacement: The Bosnia Precedent ? 19 Mich. J. Int’l L. 1091 (1998).

185 TPS, for example, is terminated by the U.S. Attorney General on the basis of information provided by the Departments of State and Justice concerning conditions in the state of origin. The quality of this review is questionable, however, and it is not a transparent process in which NGOs have a clearly defined role. See United States Designates Three African Countries for TPS, Refugee Rep., Nov. 30, 1997, at 12.

186 See, e.g., the standards suggested by the Executive Committee of the High Commissioner’s Programme in Conclusion No. 69, supra note 42.

187 Amended Proposal, supra note 122, Art. 13.

188 Progress Report, supra note 121, para. 4(r).

189 ECRE, supra note 73, para. 17.

190 The Commission’s Amended Proposal, supra note 122, Article 13, states: “If, five years after the introduction of a temporary protection regime die Council has not adopted a decision to phase out the regime in accordance with Article 4, Member States should examine whether long-term measures should be introduced for beneficiaries of temporary protection.”

The UNHCR’s Progress Report, supra note 121, paragraph 4 (r), provides: “If return remains impossible after a prolonged stay of not more than five years, States should review the situation of temporarily protected persons, with a view to reducing their psychological uncertainty and to identify long-term solutions, while ensuring that satisfactory standards are maintained.”

191 For example, Van Selm-Thorburn, supra note 58, at 224–25, describes the conversion of provisional permission to remain (the form of TP granted to Bosnians) to permanent residence for humanitarian reasons in the Netherlands after a duration of three years. Koser, Walsh, & Black, supra note 76, at 459–60, found that most European states that granted TP to Bosnians have moved toward regularization of their status, though some have continued to provide inducements for voluntary repatriation.

192 See Kälin, supra note 161, at 19–21.

193 See Survey on TP, supra note 58; Amnesty International, supra note 11.

194 For example, in the Netherlands no work was permitted in the first year and only seasonal work in the second year. See Van Selm-Thorburn, supra note 58, at 231.

195 See Amended Proposal, supra note 122.

196 Id., Art. 6.

197 Id., Art. 7(1) (providing a right to unification with spouses and minor and dependent children), Art. 7(2) (providing for flexible criteria for proof of family relationships).

198 Id., Art. 8 (requiring member states to grant permission to engage in gainful employment, equivalent to that enjoyed by recognized refugees, and equality of treatment between TP beneficiaries and Convention refugees in matters of remuneration, social security, and other working conditions).

199 Id., Art. 9(1) (requiring member states that provide temporary housing to recognized refugees to endeavor to provide equivalent housing to TP beneficiaries).

200 Id., Art. 9(2) (requiring member states to ensure necessary subsistence and medical care, taking into account any earnings).

201 Id., Art. 9(3) (requiring access to public education under the same conditions as recognized refugees).

202 The Amended Proposal, id., Art. 6, adds two caveats to the earlier March 1997 draft of Article 6 (residence authorization), supra note 122: it specifies that residence authorization will be granted “in accordance with the provisions of … national law” and that such authorization may be withheld “on grounds of public policy or public security.” The caveat concerning national law recurs at Article 7 (family reunification) and Article 8 (employment and social security).

203 Progress Report, supra note 121, para. 4(l).

204 Kälin, supra note 161, at 19–21, 34–43.

205 Amended Proposal, supra note 122, Art. 7(1).

206 See Van Selm-Thorburn, supra note 58, at 231 (indicating no right of family reunification under Dutch TP scheme for Bosnians).

207 Progress Report, supra note 121, para. 4(m).

208 The unhcr’s informal consultations include a provision requiring that TP beneficiaries be given access to refugee status determination prior to repatriation on the basis of changed circumstances. Id., para. 4(p). Articles 4 and 10 of the European Commission’s Amended Proposal, supra note 122, are less explicit on this point. Article 10 refers to suspension of access to asylum during the duration of a TP regime. Presumably, when the regime has actually been phased out, the suspension would be lifted and the beneficiaries would be eligible to apply for asylum prior to their repatriation.

209 See Conclusion No. 69, supra note 42, para. (d).

210 The European Commission’s Amended Proposal, supra note 122, Art. 10(1), provides that access to the asylum system may be delayed for a period of three years and may be delayed a further two years if the Council has adopted measures to phase out the TP regime.

211 Conclusion No. 69, supra note 42, para. (e) (referring, however, to cessation of Convention status rather than TP).

212 Id.

213 See generally Ann Sherlock, Deportation of Aliens and Article 8 ECHR, 23 Eur. L. Rev. 62 (1998).

214 See text supra at notes 20–22.

216 OAU Convention, supra note 4.

216 Cartagena Declaration, supra note 35.