Luisa Chaloub
Doutoranda em Direito Constitucional Comparado na Masaryk University (MUNI). Mestra em Direito Internacional pela Charles University (CUNI). Pesquisadora no Núcleo de Estudos e Pesquisa de Direito Internacional (NEPEDI). Pesquisadora do NEPEDI/UERJ, GPDI/UFRJ e LEPADIA/UFRJ. Membro da European Law Student Association - ELSA (Praga). Especialista em Direito Público e Privado pela Escola da Magistratura do Estado do Rio de Janeiro (EMERJ). Graduada em Direito pela Universidade Federal do Rio de Janeiro (UFRJ), instituição pela qual foi bolsista de iniciação científica do CNPq e obteve o Diploma Magna cum Laude. Foi professora substituta do departamento de Direito Civil e Internacional Privado na UFRJ e orientadora no programa de monitoria acadêmica. Atua como professora convidada em cursos jurídicos. É professora conteudista do programa de pós-graduação da Universidade Cândido Mendes (UCAM). Membro do conselho de pareceristas da Revista da EMERJ e da Revista Cálamo (Quito, Equador). Possui formação complementar pelo EU-South American School on Global Governance of the Jean Monnet Center of Excellence (CEJM), Fundação Getúlio Vargas (FGV) e pelo International Institute of Humanitarian Law (IIHL), Sanremo-IT, tendo atuado no ano de 2020 como palestrante no último instituto. Fellow no Teaching Human Rights Fellowship Program (Human Projects Inc.). Advogada. Organiza eventos e desenvolve pesquisas e publicações na área jurídica.
18
Setembro
2024
Refugees' temporal aspect
In the 1951 Convention, the refugee status is inherently temporary as it serves to address the disruption caused by the breakdown of the traditional ties between citizen and state by offering international protection until these ties can be reinstated, either with the individual's original state of nationality or with an alternative state[1]. In this context, the element "time" unfolds in two different legal dimensions: "time as attachment" and "time as a deadline"[2]. Therefore, this topic delves into the intricate dynamics surrounding the refugees' temporal aspect, focusing on the two different refugees' "times" correlated with the ideas of protracted situations and long-lasting solutions.
The first one is connected to the passage of time, leading to the consequent gradual extension of refugee rights into the host society and an increasing level of integration. The refugee protection logic is one of progressive accrual of rights over time. Because refugees cannot return to their countries of origin, they must be given a chance to start a new life and become part of a new community. Hence, the longer they stay, the deeper their social connectedness is and the stronger their claim for inclusion in the host society. In other words, in this “assimilative path”, over time, they should get gradually closer to citizens of the host state in terms of rights and obligations, with naturalisation as the recommended outcome[3].
In contrast, the second aspect is tethered to the termination of refugee status and, consequently, the forfeiture of associated rights. Even though the 1951 Convention has traditionally been interpreted to provide longer-term refugees protection, granting them progressive rights[4] (time as attachment), those are not necessarily unlimited on time (time as a deadline). According to Article 1 (C), the convention shall cease to apply under certain cases if the circumstances in connection with which the recognition of the refugee status happened have ceased to exist, if this person voluntarily re-established himself in the country which had left, naturalisation, among others[5].
Thus, the refugee status ceases to exist, either because of the reinstallation of the original ties or the creation of new ones. Although the Convention refugee status may appear stable, it is still ultimately temporary, and once the refugee protection outlined is not perpetual, the refugee status, per se,, gives rise to a certain degree of instability[6].
Even temporarily, the 1951 Conventions' ambition is huge, granting every refugee worldwide access to asylum at any given time with no specific timeframe. This ambitious commitment requires states to have some time to adjust their procedures and redistribute resources, especially when faced with a substantial influx of refugees, potentially necessitating additional support. Nevertheless, this ambition came without the introduction of any new legal instruments, and no specific formula was proposed to delineate how states should share responsibilities and cooperate, not only in providing asylum but, even more importantly, in seeking enduring solutions to the refugee challenge[7] and not relying solely on perpetuating temporal protection.
In order to secure long-lasting solutions to the problems faced by refugees and assure them to leave the instability brought by their refugee status behind, according to the UNHCR, there are three main solutions: voluntary repatriation, meaning the return home when it is safe to do so; local integration based on settled status in the country of asylum; and the third-country resettlement[8]. More recently, those three forms of durable solutions have been allied with the complementary pathways for admission to third countries, which, according to UNHCR, could be defined as safe and regulated avenues for persons in need of international protection that provide for a lawful stay in a third country where the international protection needs of the beneficiaries are met[9]. Although these outcomes are not specified in the Convention[10], they are an integral part of the practice of refugees[11]. Other than that, they are considered key elements to avoiding protracted situations[12] and reducing the instability and precarity of refugee protection that "permanent temporariness" might cause.
In addition to the temporal safeguards provided by the 1951 Convention, states offer supplementary forms of protection to refugees[13] who might not meet convention criteria but still confront significant risks if sent back to their home countries or when the recognition of those factors would take so long that would challenge the protection of their rights.
[1] Durieux, J. (2014). Temporary protection: Hovering at the edges of refugee law.Netherlands Yearbook of International Law, 45, 221-253. doi:https://doi.org/10.1007/978-94-6265-060-2_9.
[2] Idem.
[3] Shachar A (2009) The Birthright Lottery: Citizenship and Global Inequality. Cambridge, MA: Harvard University Press.
[4] See, for example, the right stated at Articles 17 and 34 of the 1951 Convention.
[5] Convention relating to the Status of Refugees.
[6] Buxton, R. (2023). Justice in waiting: The harms and wrongs of temporary refugee protection. European Journal of Political Theory, 22(1), 51-72. https://doi.org/10.1177/1474885120973578
[7] Ibid.
[8] UN. UNHCR. UNHCR Global Appeal 2018-2019 - Building better futures. Available at: https://www.unhcr.org/media/unhcr-global-appeal-2018-2019-building-better-futures. Access in: 13/11/2023. P. 23.
[9] Op. Cit. P. 23.
[10] Nevertheless, in Article 34, the convention does mention the expression “assimilation” and throughout its text some of the integration rights such as public education in Article 22, right to work and social security, article 24, among others.
[11] Jessica Schultz. An end to asylum? Temporary protection and the erosion of refugee status. In: Christine M. Jacobsen, Marry-Anne Karlsen and Shahram Khosravi. Waiting and the temporalities of irregular migration. Abingdon, Oxon ; New York, NY : Routledge, 2020. P. 171.
[12] According to UNHCR protracted refugee situation is the “protracted refugee situations are those in which at least 25,000 refugees from the same country have been living in exile for more than five consecutive years. Refugees in these situations often find themselves trapped in a state of limbo: while it is not safe for them to return home, they also have not been granted permanent residence to stay in another country either.” UN. UNHCR. Protracted Refugee Situations Explained. 2020. Available at: https://www.unrefugees.org/news/protracted-refugee-situations-explained/ Access in: 11/11/2023.
[13] Jens Vedsted-Hansen. Complementary or subsidiary protection?Offering an appropriate status without undermining refugee protection. New issues in refugee research. Working Paper No. 52. Available at: https://www.refworld.org/pdfid/4ff550682.pdf. Access in: 08/12/2023.
12
Junho
2024
From protected to protracted: the relationship between the temporary protection mechanisms and refugees' different times
If, on one side, the temporary protection mechanism holds a distinct appeal for certain governments due to its return-oriented nature and its avoidance of a perceived long-term commitment[1], on the other side, the application of refugee law should, as far as possible, reduce the precarity of life in exile or as a "returnee" in the country of origin. This is achieved by providing those who qualify with durable solutions, which include a stable legal status, protection and opportunities for productive activity in the country of residence, bringing into effect "other frameworks with their own logic where temporariness might not be pursued or might be even considered as injurious"[2].
While there is already some instability in a decision to grant refugee status as this situation is not necessarily unlimited in time, considering the Convention's aim to establish a stable, if not enduring, refugee status, cessation should be cautiously and specifically invoked only when durable protection is unequivocally established. The political perspective within the migration governance framework emphasises that durability not only aligns cessation practices (“time as a deadline”) with the broader solution-oriented goals of refugee protection but also with commitments outlined in the Global Compact on Refugees. At the same time, the UNHCR has already affirmed that the admission rules into the host territory “can be seen as integration starting points which set crucially important conditions for the integration process”[3]; therefore, the correlation between the TPMs and the direct impact on “time as attachment” through the integration policies cannot be disregarded. Nevertheless, the TPMs many times do not follow this logic and exacerbate the insecurity for its beneficiaries, putting a deadline on most basic rights and subjecting them to a state of "permanent temporariness" within their current country of residence[4]. In that scenario, those groups are mostly granted states’ unstable “concessions” rather than permanent human rights.
Therefore, time plays a crucial role in the refugee regime, as its ultimate goal is to guide refugees and the states involved towards lasting solutions. The temporal aspect permeates the regime's norms and processes, from emergency provisions to temporary protection, asylum, cessation of status, and eventually to durable solutions[5], setting a new legal value of "time while temporary"[6].
The situation is especially worrying when one comes across the premise of temporary protection, that is, over time, refugees return home[7]. Suppose this does not happen; one could see the resumption of squabbles about where responsibility should lie and end and witness the renewed appeal of nationalist politics and anti-refugee sentiment globally that endangers the integrity of the international protection regime and international law at large. This logic leads to protracted temporariness and prioritises returns or repatriation at the expense of meaningful access to long-term and "durable solutions" for the individuals concerned.
The continuous increase of the use of TPMs without focusing on avenues for permanent solutions disrupts the delicate legal balance between the two aspects of "refugee time": the gradual integration into the host community ("time as attachment") and the potential for return when/if conditions improve or when the temporary protection ceases ("time as a deadline"). This model of protection creates protracted situations for refugees who do not have enough time either to reestablish the bond with their origin country safely or time to integrate and, therefore, establish a new bond with the host society.
Scholars[8] in the field argue that there are at least four arguments against the abuse of temporary protection. First, one could mention the "plan argument", stating that to be able to enjoy a minimally decent human life, individuals need to be able to make plans for their own future. Secondly, the "reciprocity argument" defends that refugees possess the fundamental right to engage in reciprocal relationships with citizens within the State of asylum however the uncertainty surrounding their temporary protection status impedes their capacity to establish and maintain these relationships, undermining their ability to fully integrate and contribute to their host communities. The third argument is the "dominant argument", based on the idea that even though the possibility of domination (understood as when one agent holds a certain power over another, in particular power that can be exercised on an arbitrary basis) could happen to any refugee, the temporary refugee is more likely to be subject to arbitrary power than someone with permanent residence. Lastly, the "injustice argument" understands that the "temporariness of such protection needlessly exacerbates and prolongs the harm that displacement causes such that it constitutes an injustice"[9].
In that scenario, one should be aware that states require time to adapt their procedures and reallocate resources when confronted with a significant influx of refugees, potentially seeking additional support. Denying or downplaying the refugee status of the influx is counterproductive, as it would disconnect them from the assistance available through the regime. However, allowing reluctant host states to keep refugees in a state of uncertainty undermines the integrity of the international legal framework as a whole. In those cases, international law should recognise that refugee influxes can create emergency situations and provide regulation for such circumstances by permitting a lawful temporary derogation of the 1951 Convention within specified, verifiable limits[10].
[1] UN. UNHCR. Roundtable on Temporary Protection. 2014.
[2] Stoyanova, V. (2022). Temporariness of refugee protection: For what and in whose interest Cessation of status as related to revocation of residence permits. Maastricht Journal of European and Comparative Law, 29(5), 527-549. https://doi.org/10.1177/1023263X221138957
[3] UN. UNHCR. UNHCR Note on Refugee Integration in Central Europe. 2013. Available at: https://www.refworld.org/pdfid/4bfe70d72.pdf Access in: 11/11/2023.
[4] Jessica Schultz. The end of protection? Cessation and the ‘return turn’ in refugee law. 2017. P. 170.
[5] Jean-François Durieux, Protection Where? – or When? First asylum, deflection policies and the significance of time, International Journal of Refugee Law, Volume 21, Issue 1, March 2009, Pages 75–80, https://doi.org/10.1093/ijrl/een043
[6] Idem.
[7] European Union. European Commission. Speech by President von der Leyen at the EP Plenary on the social and economic consequences for the EU of the Russian war in Ukraine – reinforcing the EU's capacity to act. 4 May 2022. Available at: https://ec.europa.eu/commission/presscorner/detail/en/speech_22_2785. Access in: 13/05/2022.
[8] Buxton, R. (2023). Justice in waiting: The harms and wrongs of temporary refugee protection. European Journal of Political Theory, 22(1), 51-72. https://doi.org/10.1177/1474885120973578
[9] Idem.
[10] Durieux, J. (2014). Temporary protection: Hovering at the edges of refugee law.Netherlands Yearbook of International Law, 45, 221-253. doi:https://doi.org/10.1007/978-94-6265-060-2_9
21
Fevereiro
2024
The key concepts of migrants and refugees
Even though the issue of migration has become increasingly central in the transformations of both originating and receiving societies and has also become a strategic topic of interest in the 21st century, there is no universally accepted definition for the term "migration".
The International Organization for Migration (IOM) classifies this phenomenon as an "umbrella term" in relation to destination (international or national), time (temporary or permanent) and voluntary nature or forced. "umbrella term" in relation to destination (international or national), time (temporary or permanent) and voluntary nature or forced. The migrant current definition encompasses the "common lay understanding of a person who moves away from his or her place of usual residence, whether within a country or across an international border, temporarily or permanently, and for a variety of reasons"[1]. Considering this concept, there are three crucial elements outlined by the IOM: border, time, and nature.
Relating to the nature of migration, when understanding the willingness of the movements, one should notice that among those who do not make the free decision to migrate, who have, through displacement, a form of survival, fall under the classification of forced migration[2]. Refugees are a particular category of migrants under the forced migration subclassification, defined by the 1951 Geneva Convention as someone who, due to the events occurring in Europe before 1 January 1951, "is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion"[3].
Later, the 1967 Protocol removed the Refugee Convention's temporal and geographical restrictions so that the Convention would apply universally, and Article 1 of the Protocol says that countries that ratify it agree to abide by the Refugee Convention as well – even if they are not a party to it[4]. Instruments adopted at the regional level build upon the Convention and Protocol definition by including specific reference to a number of objective circumstances which may compel a person to leave their country. For example, Article 1(2) of the Convention Governing Specific Aspects of Refugee Problems in Africa[5] includes in the definition of refugees also any person compelled to leave his or her country "owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country or origin or nationality". Similarly, the 1984 Cartagena Declaration states that refugees also include persons who flee their country "because their lives, security or freedom have been threatened by generalised violence, foreign aggression, internal conflicts, massive violations of human rights or other circumstances which have seriously disturbed public order"[6].
It is worth noting that, although the definition of a refugee has been expanded, not every person undergoing forced migration (internally displaced people, environmentally displaced people, displaced people due to humanitarian crises, among others) is considered a refugee. Therefore, such characterization is reserved only for those who meet specific requirements defined by objective and subjective criteria of international treaties[7].
Furthermore, it is interesting to highlight that under international refugee law, the recognition as a refugee is declaratory and not constitutive. According to the UNHCR Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status, a person is a refugee within the meaning of the 1951 Convention as soon as he fulfils the criteria contained in the definition, which necessarily occurs prior to the time at which the refugee status is formally determined. Thus, the recognition of the refugee status does not make that person a refugee but declares to be one as "he does not become a refugee because of recognition, but is recognized because he is a refugee"[8].
[1] UN. IOM. Glossary on Migration. N 34. Available at: https://publications.iom.int/system/files/pdf/iml_34_glossary.pdf. Access in: 13/11/2023.
[2] Denise Marini. Humanitarismo e Militarismos : o protagonismo das Forças Armadas na resposta do Estado brasileiro às migrações venezuelanas (2018-2022). Doctoral Thesis. Universidade Federal Fluminense, Instituto de Estudos Estratégicos, Niterói, 2023. P. 124.
[3] Convention relating to the Status of Refugees. Adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137. Art. 1A(2). Available at: https://www.unhcr.org/media/convention-and-protocol-relating-status-refugees. Access in: 13/11/2023.
[4] Protocol relating to the Status of Refugees. Adopted 16 December 1966 by the General Assembly in resolution 2198 (XXI), entry into force 4 October 1967. Available at: https://www.unhcr.org/media/convention-and-protocol-relating-status-refugees. Access in: 13/11/2023.
[5] Convention Governing Specific Aspects of Refugee Problems in Africa. Adopted 10 September 1969, entered into force 20 June 1974. 1001 UNTS 45. Available at: https://www.unhcr.org/fr-fr/en/media/oau-convention-governing-specific-aspects-refugee-problems-africa-adopted-assembly-heads. Access in: 13/11/2023.
[6] Cartagena Declaration on Refugees, adopted by the Colloquium on the International Protection of Refugees in Central America, Mexico and Panama, Cartagena de Indias, Colombia, 22 November 1984. Available at: https://www.unhcr.org/fr-fr/en/media/cartagena-declaration-refugees-adopted-colloquium-international-protection-refugees-central. Access in: 13/11/2023.
[7] Denise Marini. Op. Cit. P. 125.
[8] UN. United Nations High Commissioner for Refugees, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status (2011) HCR/1P/4/enG/Rev. 3, para. 9). Available at: https://www.unhcr.org/fr-fr/en/media/handbook-procedures-and-criteria-determining-refugee-status-under-1951-convention-and-1967. Access in: 13/11/2023.