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Conflict Displacement and
Legal Protection

While the 21st century bears witness to several conflicts leading to mass dis-
placement, the conflict in Syria has again crystallised the need for a solid legal
framework and legal certainty.
This book analyses the relevant legal instruments for the provision of a pro-
tection status for persons fleeing to Europe from conflict and violence. It focuses
on the conceptualisation of conflict and violence in the countries of origin and
the different approaches taken in the interpretation of them in the 1951 ­Refugee
Convention, the Recast Qualification Directive of the European Union and the
European Convention on Human Rights. It traces the hierarchical order of pro-
tection granted, starting with refugee protection status, to subsidiary p ­ rotection
status and finally with the negative protection of non-refoulement. Recent case
law and asylum status determination practices of European countries i­llustrate
the obstacles in the interpretation as well as the divergence in the application of
the legal instruments.
The book fills an important gap in examining the current practices of key
actors, including the United Nations High Commissioner for Refugees and
­European states, tracing changes in national and international policies and re-
vealing discrepancies towards contemporary approaches to conflicts. It refines
the interaction and cross-fertilisation of the different relevant fields of European
asylum law, human rights law and the laws of armed conflict in order to fur-
ther the development of a harmonised protection regime for conflict-induced
displacement.

Charlotte Lülf works as a researcher at the Higher Administrative Court of the

State of North Rhine-Westphalia. Prior to that she was a postdoctoral researcher
at the Institute for International Law of Peace and Armed Conflict in Bochum.
Law and Migration
Series Editor
Satvinder S. Juss, King’s College London, UK

Migration and its subsets of refugee and asylum policy are rising up the policy
agenda at national and international levels. Current controversies underline the
need for rational and informed debate of this widely misrepresented and little
understood area.
Law and Migration contributes to this debate by establishing a monograph
series to encourage discussion and help to inform policy in this area. The series
provides a forum for leading new research principally from the Law and Legal
Studies area but also from related social sciences. The series is broad in scope,
covering a wide range of subjects and perspectives.
Other titles in this series:

Children’s Rights and Refugee Law

Conceptualising Children within the Refugee Convention
Samantha Arnold

Law and Asylum

Space, Subject, Resistance
Simon Behrman

Ethical, Legal and Social Aspects of Healthcare for Migrants

Perspectives from the UK and Germany
Edited by Katja Kuehlmeyer, Corinna Klingler and Richard Huxtable

Environmental Change, Forced Displacement and International Law

From Legal Protection Gaps to Protection Solutions
Isabel M. Borges

Conflict Displacement and Legal Protection

Understanding Asylum, Human Rights and Refugee Law
Charlotte Lülf

For more information about this series, please visit:

www.routledge.com/Law-and-Migration/book-series/LAWANDMIG
Conflict Displacement and
Legal Protection
Understanding Asylum, Human Rights
and Refugee Law

Charlotte Lülf
First published 2019
by Routledge
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
and by Routledge
52 Vanderbilt Avenue, New York, NY 10017
Routledge is an imprint of the Taylor & Francis Group, an informa
business
© 2019 Charlotte Lülf
The right of Charlotte Lülf to be identified as author of this work has
been asserted by her in accordance with sections 77 and 78 of the
Copyright, Designs and Patents Act 1988.
All rights reserved. No part of this book may be reprinted or reproduced
or utilised in any form or by any electronic, mechanical, or other means,
now known or hereafter invented, including photocopying and recording,
or in any information storage or retrieval system, without permission in
writing from the publishers.
Trademark notice: Product or corporate names may be trademarks
or registered trademarks, and are used only for identification and
explanation without intent to infringe.
British Library Cataloguing-in-Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloging-in-Publication Data
A catalog record has been requested for this book

ISBN: 978-1-138-32683-5 (hbk)

ISBN: 978-0-429-44962-8 (ebk)
Typeset in Galliard
by codeMantra
Contents

List of abbreviations and acronyms vii

1 Introduction 1
1.1 A first glance at the book 1
1.2 Context considerations 3
1.3 The European struggle with asylum realities 8
1.4 The structure and the applicable law 11

2 Refugee protection in the context of conflict and violence 18

2.1 An introduction to the 1951 Convention as the primary
refugee protection instrument 19
2.2 T he 1951 Convention and the regional extended
instruments 22
2.3 UNHCR – the mechanism of implementation and
its position on persons fleeing conflict 26
2.4 Interpreting the 1951 Convention criteria of a conflict-
displaced refugee 61
2.5 Intermediate conclusion on the 1951 Convention and
persons fleeing conflict and violence 107

3 European Union asylum law and persons fleeing

conflict and violence 129
3.1 T he historical development of a CEAS 131
3.2 Union law instruments and the protection of persons
fleeing conflict and violence 134
3.3 Adjudicating asylum law on the supranational level –
the role of the CJEU and subsidiary protection 142
3.4 An interpretative overhaul – the (Recast)
QD and international humanitarian law 146
3.5 Intermediate conclusion on the (Recast) QD and
subsidiary protection for persons fleeing conflict and violence 176
vi Contents
4 European human rights law protection for persons
fleeing conflict and violence 187
4.1 Complementary protection in Europe – turning
to the ECHR 188
4.2 T he scope of the Convention’s Article 3 of
non-refoulement 191
4.3 Extraterritorial application of European human
rights law 220
4.4 Intermediate conclusion on the ECHR’ s non-
refoulement and countries in conflict 228

5 Conclusion 239
5.1 Conflict displacement and the challenge of
status determination 239
5.2 Refugee law, Europe’s complementary
Protection scheme and the role of international
humanitarian law 241
5.3 Concluding remarks 249

Index 253
Abbreviations and acronyms

AALCO Asian-African Legal Consultative Organisation

ACHPR African Charter on Human and Peoples’ Rights
AMISOM African Union Mission in Somalia
AP Additional Protocol to the Geneva Conventions
APD Asylum Procedures Directive
AU African Union
CEAS Common European Asylum System
CERD Convention on the Elimination of Racial Discrimination
CJEU Court of Justice of the European Union
CNDA Court Nationale des Droits d’Asile
COI Country of Origin Information
DIP Division of International Protection
EASO European Asylum Support Office
ECB European Central Bank
EC European Community
ECC European Economic Community
ECHR European Convention on Human Rights
ECJ European Court of Justice
ECommHR European Commission on Human Rights
ECOSOC Economic and Social Council
ECRE European Council on Refugees and Exiles
ECT Treaty Establishing the European Community
ECtHR European Court of Human Rights
ENDF Ethiopian National Defense Forces
EU European Union
EURODAC European Dactyloscopy
IAC International Armed Conflict
ICC International Criminal Court
ICCPR  International Covenant on Civil and Political Rights
ICESCR International Covenant on Economic, Social and Cultural
Rights
ICJ International Court of Justice
ICL International Criminal Law
viii Abbreviations and acronyms
ICTR International Criminal Tribunal for Rwanda
ICRC International Committee of the Red Cross
ICTY International Criminal Tribunal for the former Yugoslavia
IDP Internally Displaced Person
IFA Internal Flight Alternative
IHL International Humanitarian Law
ILC International Law Commission
IO International Organisation
IOM International Organisation for Migration
IRO International Refugee Organisation
IS Islamic State
KFOR Kosovo Force
LGBTI Lesbian, gay, bisexual, transgender and intersexual
MPSG Membership of a Particular Social Group
NATO North Atlantic Treaty Organisation
NGO Non-governmental organisation
NIAC Non-International Armed Conflict
OAS Organisation of African States
OAU Organisation of African Unity
OFR A Office Francais de Protection des Refugies et Apartides
OHCHR Office of the High Commissioner for Human Rights
PKK Partiya Karkerên Kurdistanê
PPLA Protection Policy and Legal Advice
PYD Partiya Yekitîya Demokrat
QD Qualification Directive
RCD Reception Conditions Directive
RSD Refugee Status Determination
TEU Treaty of the European Union
TFEU Treaty on the Functioning of the European Union
TFG Transitional Federal Government
TPD Temporary Protection Directive
UDHR Universal Declaration of Human Rights
UK United Kingdom
UN United Nations
UNCLOS United Nations Convention on the Law of the Sea
UNGA United Nations General Assembly
UNHCR United Nations High Commissioner for Refugees
UNMIK United Nations Mission in Kosovo
UNO United Nations Organisation
UNRWA United Nations Relief and Work Agency
US United States (of America)
VCLT Vienna Convention on the Law of Treaties
YPG Yekîneyên Parastina Gel
1 Introduction

1.1 A first glance at the book

Protracted humanitarian crises, failing states, natural disasters and recent armed
conflicts such as those in Syria, Afghanistan, Iraq or Libya have led to extensive
mixed migration movements to neighbouring countries and prominent regions
of destination. The total number of forcibly displaced persons reached a record
high of 68.5 million at the end of 2017.1 Some of the affected persons flee per-
secution, some flee the violence of conflict, while others leave for a variety of
­d ifferent reasons. More often than not, they leave because of a combination of
these various driving factors. A highly fragmented legal framework attempts to
deliver regulation and protection 2 for those displaced in today’s world of inter-
nal, cross-border and intercontinental mobility. The diverse reasons for flight,
however, hinder the application of pertinent legal regimes. To complicate m­ atters

1 Currently the newest overall number for global forced displacement, United Nations High Com-
missioner for Refugees, Global Trends. Forced Displacement in 2017 (2018), available online at
http://www.unhcr.org/5b27be547.pdf (last visited 1 August 2018).
2 In this book, the term ‘protection’ is not used with a broader operational understanding but is
understood as the allocation of a protection status. This usage reflects the definition of protec-
tion in Article 2 of Recast Qualification Directive 2011/95/EU of the European Parliament
and of the Council of 13 December 2011 on standards for the qualification of third-country
nationals or stateless persons as beneficiaries of international protection, for a uniform status
for refugees or for persons eligible for subsidiary protection, and for the content of the pro-
tection granted (recast), 20 December 2011: “For the purposes of this Directive the following
definitions shall apply: (a) ‘international protection’ means refugee status and subsidiary protec-
tion status as defined in points (e) and (g); (b) ‘beneficiary of international protection’ means a
­person who has been granted refugee status or subsidiary protection status as defined in points
(e) and (g).” See for a further discussion on the broader concept of protection in refugee related
matters, Fortin, Antonio, ‘The Meaning of “Protection” in the Refugee Definition’, 12 Inter-
national Journal of Refugee Law (2000) 548. Goodwin-Gill, Guy S., ‘International Protection
and ­A ssistance for Refugees and the Displaced: Institutional Challenges and United Nations
Reform’ (Paper Presented at the Refugees Studies Centre Workshop, 2006). United Nations
High ­Commissioner for Refugees, Agenda for Protection (2003), available online at http://
www.unhcr.org/protection/globalconsult/3e637b194/agenda-protection-third-edition.html
(last visited 1 August 2018). Steiner, Niklaus, Gibney, Mark and Loescher, Gil (eds.), Problems of
Protection. The UNHCR, Refugees, and Human Rights (2003).
2 Introduction
further, the legal status of those individuals arriving in receiving countries is far
from clear-cut or consistent.3
While the 21st century bears witness to several armed conflicts resulting in dis-
placement within the affected country or region or across the globe, the ongoing
conflict in Syria is the most recent example and source of forced displacement. It
has exposed and highlighted the need for a solid legal framework and legal cer-
tainty in the application of protection provisions. By mid-2017, over 5.6 ­million
people had fled Syria and been registered as refugees by the United Nations
(UN) High Commissioner for Refugees (UNHCR) in the five neighbouring
countries alone.4 Former High Commissioner António Guterres deemed the
displacement caused by the Syrian armed conflict “a refugee outflow […] at such
a frightening rate [not seen] since the Rwandan genocide almost 20 years ago”,
“the largest crisis of forcible displacement in the world, and […] a growing threat
to regional peace and security”.5 Due to the challenging combination of high
displacement numbers and, in particular, inconsistent and changing determina-
tion practices concerning Syrians seeking protection in Europe, this analysis uses
both this conflict and other situations of violence as examples to illustrate the
relevant legal bases for status determination.
The 1951 Convention Relating to the Status of Refugees (hereafter the 1951
Convention) and its 1967 Protocol, the fundamental pillars of international ref-
ugee law, establish protection for individuals who have crossed an international
border, fearing persecution based on religion, race, nationality, political opin-
ion or membership of a social group. The existing legal framework, established
in the aftermath of the Second World War, is, however, perceived as failing to
address the size, scale and character of modern forced displacement, particu-
larly displacement from conflict and violence.6 The individualistic focus of the
1951 Convention seems contradictory and inappropriate when applied to mass
displacement of citizens from countries in conflict. The occurrence of conflict
alone does not trigger the application of the 1951 Convention and its protection
framework. It excludes those who are not persecuted individually for the dis-
criminatory reasons codified in the Convention. Does this affect persons fleeing
generalised situations of violence?7 One has to question whether this generally
excludes the application of refugee law to situations of conflict. Further, it must

3 Karatani, Rieko, ‘How History Separated Refugee and Migrant Regimes. In Search of Their
Institutional Origins’, 17 International Journal of Refugee Law (2005) 517, at 518f.
4 These countries are Egypt, Iraq, Jordan, Lebanon, and Turkey, United Nations High Com-
missioner for Refugees, UNHCR Syria Regional Refugee Response (2017), available online at
http://data.unhcr.org/syrianrefugees/regional.php (last visited 1 August 2018).
5 United Nations High Commissioner for Refugees, UNHCR Chief Urges States to Maintain
Open Access for Fleeing Syrians (2013), available online at http://www.unhcr.org/51e55cf96.
html (last visited 1 August 2018). United Nations High Commissioner for Refugees, Ministerial
Coordination Meeting of Major Host Countries for Syrian Refugees in Jordan (2014), available
online at http://www.unhcr.org/536652a39.html (last visited 1 August 2018).
6 United Nations High Commissioner for Refugees, supra note 5.
7 United Nations High Commissioner for Refugees, Summary Conclusions on International
­Protection of Persons Fleeing Armed Conflict and Other Situations of Violence. Roundtable 13 and
 Introduction 3
be addressed to what extent other legal fields trigger protection. Despite the
1951 Convention’s salient position in refugee protection, the broader protection
framework has evolved through its interrelationship with neighbouring fields of
law, such as human rights law, humanitarian law and developing asylum schemes.
Their influence and application are particularly relevant for persons fleeing the
consequences of conflict in their countries of origin.

1.2 Context considerations

Flight from conflict is one major component of the larger phenomenon of forced
displacement and forced migration movements, both internally, i.e. within the
affected state’s borders, and across the globe. With its increasing effects, not only
for the neighbouring region but also for other prominent states of destination,8
mirrored in increasing numbers of asylum applications, forced displacement is
now a significant item both on the international community’s agenda and in
public and academic discourse.

1.2.1 “Who is Who”? The complexity of mixed migration

movements
Migration may be a reaction to deteriorating circumstances in the country of or-
igin, such as ‘sudden’ disasters, whether natural or man-made. While it may take
the form of forced displacement, anticipatory voluntary movement can, but need
not, be the reaction to negative changes in living conditions, such as slow onset
disasters.9 International migration is “[u]sually termed regular or authorised mi-
gration and principally a voluntary movement of people seeking better economic
and social opportunities, as well as different life experiences and lifestyles”.10
However, migration movements are prone to change; drivers of displacement are
not constant and patterns of dislocation change rapidly.11 “[P]eople flee because
of multiple causes of violence, exclusion, environmental degradation, competi-
tion for scarce resources and economic hardship caused by dysfunctional states.
Some leave voluntarily, some flee because there is no other choice.”12

14 September 2012 (2012), available online at http://www.refworld.org/docid/50d32e5e2.html

(last visited 1 August 2018).
8 United Nations High Commissioner for Refugees, Asylum Trends 2014. Level and Trends in In-
dustrialized Countries (2015), available online at http://www.unhcr.org/551128679.html (last
visited 1 August 2018), at 7.
9 OCHA, ‘OCHA and Slow Onset Emergencies’, 6 OCHA Occassional Policy Briefing Series
(2011), at 3f.
10 Zetter, Roger, ‘Protecting Forced Migrants. A State of the Art Report of Concepts, Challenges
and Ways Forward’ (Federal Commission on Migration, 2014), at 20.
11 International Federation of Red Cross and Red Crescent Societies, World Disasters Report 2012
(International Federation of Red Cross and Red Crescent Societies, 2012), at chapter 1, 13f.
12 Parliamentary Assembly of the Council of Europe, ‘Environmentally Induced Migration and
Displacement: A 21st Century Challenge’ (Doc. 11785, 2008), at 2.
4 Introduction
Institutionally, as well as legally, the traditional approach to leaving one’s coun-
try is twofold. One is persecuted for certain reasons and qualifies as a Convention
refugee, or one cannot qualify as such and is treated as a migrant instead. The
legally clear distinction between refugees and migrants and the need for inter-
national protection for the former, in particular, were institutionalised after the
Second World War. It was mirrored in the establishment of the UNHCR and
the International Organisation for Migration (IOM) and codified in the clearly
demarcated regime of refugee protection, excluding the category of voluntary mi-
grants and other categories of forced migrants.13 The legal distinction between
these different types of displaced persons is enshrined in a detailed framework of
status determination procedures that aims at ensuring the correct attribution of a
specific legal status and an attached set of rights for its legitimate owner: “Refugee
law is anchored in a belief in status. It is reflective of the idea that individuals and
groups can be identified by falling within a carefully defined legal construct.”14
The reality of migration and flight movements, however, does not follow such
clear-cut and distinguishable legal categories. The complexity of forms of perse-
cution and ill-treatment, together with rights violations ranging from civil and
political to socio-economic, blurs the lines separating the artificially construed
categories of persons. The status determination process is further aggravated by
the flight and migration patterns, which are characterised by mixed migration
movements.15 “The increasingly ‘mixed’ nature of migratory movements, that is
of movements whose participants have differing motivations, objectives and needs,
necessarily means that refugees and migrants will often be travelling together.”16
Despite differences in their entitlements, refugees and conflict-displaced
persons enjoy no additional access rights or legal channels to enter countries
of asylum than migrants. This practice has become apparent in the ­European
states over the last years. Recognition rates for persons originating from certain

13 Bast, Jürgen, ‘International Organization for Migration (IOM)’ (Max Planck Encyclopedia of
Public International Law, 2010). Kugelmann, Dieter, ‘Migration’ (Max Planck Encyclopedia of
Public International Law, 2009).
14 Juss, Satvinder and Harvey, Colin, ‘Critical Reflections on Refugee Law’, 20 International Jour-
nal on Minority and Group Rights (2013) 143, at 143.
15 United Nations High Commissioner for Refugees, Refugee Protection and Mixed Migration: A
10-Point Plan of Action (2007), available online at http://www.refworld.org/docid/45b0c09b2.html
(last visited 1 August 2018). For matters of implementation, United Nations High Commissioner for
Refugees, UNHCR’s 10 Point Plan in Central America, Western Africa, Eastern Africa and S­ outhern
Asia – A Two Year Project (2008), available online at http://www.unhcr.org/4aa7a4bd9.pdf (last vis-
ited 1 August 2018). Regional conferences were held in Yemen (2008), Senegal (2008), Costa Rica
(2009), Tanzania (2010), Kazakhstan (2011) and expert roundtables in Geneva (2008), Tunis (2009),
Geneva (2009), Manila (2010). See for a detailed assessment of the UNHCRs work in this regard,
Howe, Tim, Refugee Protection and International Migration: Achievements, Challenges and Lessons
Learned from UNHCR’s 10-Point Plan Project (2012), available online at http://www.refworld.org/
docid/4f2654362.html (last visited 1 August 2018).
16 United Nations High Commissioner for Refugees, Refugee Protection and International Migra-
tion in West Africa Statement by the Assistant High Commissioner – Protection, UNHCR Regional
Conference on Refugee Protection and International Migration in West Africa (2008), available
online at http://www.unhcr.org/en-au/admin/dipstatements/4937e7742/refugee-­protection-
international-migration-west-africa-statement-assistant.html (last visited 1 August 2018).
 Introduction 5
countries in conflict have risen, and some European countries have used their
discretionary powers to decide that Syrians, for instance, are to be granted pro-
tection. However, legal access to Europe, such as with visas issued by embassies,
remains closed.17 This is in line with the increasingly draconian approach of
states to the management of immigration, expressed through the restriction of
visa applications, enforcement of carrier sanctions and continuous strengthening
of external border controls. Refugees and other forced migrants, therefore, have
to resort to irregular migration routes to get to Europe and entering without the
necessary authorisation. The death toll of the last years is symptomatic of these
developments18: “Irrespective of the cause of displacement, [people] use similar
routes, modes of travel and aim for similar destinations; increasingly resort to
organised movement and the assistance of people smugglers”.19
The current context of mass displacement and mixed mass movements to po-
tential host countries challenges the application of the pertinent legal instru-
ments. Lacking legal access opportunities, refugees and those displaced due to
conflict mix with other migrants on their flight routes and further aggravate
tensions in the application of the already disputed protection status.

1.2.2 Forced displacement by violence and conflict – challenges

to a legal framework
Displacement is rooted in conflict but also begets conflict itself.20 Sadako Ogata,
former High Commissioner for Refugees, emphasised in 1998:

The root causes of refugee displacement are inextricably linked to conflict,

persecution and the denial of human rights. The very existence of refugees
and other forcibly displaced people is therefore a barometer of a society’s
incapacity to resolve its differences by peaceful, rather than violent, means.21

17 European Union Agency for Fundamental Rights, Legal Entry Channels to the EU for Persons
in Need of International Protection: A Tool Box (2015), available online at http://fra.europa.
eu/sites/default/files/fra-focus_02-2015_legal-entry-to-the-eu.pdf (last visited 1 August 2018).
­European Council on Refugees and Exiles, ‘Europe: Safe and Legal Access Channels. Ecre’s
Vision of Europe’s Role in the Global Protection Regime’ (2017).
18 Zetter, Roger, supra note 10, at 25.
19 Id., at 39.
20 The terminology concerning the legal protection of people fleeing violence and conflict must be
used with caution as it is characterised by linguistic and interpretative ambiguity. Both on a polit-
ical level as well as in the pertinent jurisprudence, classifications of situations in the countries of
origin vary in the use and meaning of terms of civil war, armed conflict, conflict, or widespread
disorder. In this regard, the book starts from the assumption that the term conflict, as used in
asylum law matters, is not limited by the terminology and attached conceptualisation of the laws
of armed conflict. When necessary in the determination of the scope of legal instruments, the
understanding of the term ‚conflict’ is analysed in the respective parts of the chapters to mark
differences and commonalities from the perspective of the different legal fields applied.
21 United Nations High Commissioner for Refugees, Statement by Mrs. Sadako Ogata, United Na-
tions High Commissioner for Refugees, to the 54th Session of the United Nations Commission on
Human Rights (1998), available online at http://www.unhcr.org/3ae68fd48.html (last visited 1
August 2018).
6 Introduction
UN Security Council resolutions concerning the conflicts of the 2010s have
expressed equally the Council’s awareness of conflict-induced displacement and
its potential to exacerbate violence in both the country and the region.22 To
leave one’s home and one’s country is a decision seldom taken lightly, even in
the case of conflict. The dynamics of displacement reportedly change during
the continuation of conflict. The hope of having to leave only temporarily often
results in internal displacement or displacement to directly neighbouring coun-
tries. With the increasingly protracted character of conflicts, people are forced
to seek more permanent or more promising solutions.23 This results in onward
or secondary movement of displaced persons from the region to hopeful coun-
tries of destination.24 The international and regional framework governing these
movements, however, struggles to keep up.
The conceptualisation of a refugee and refugee law as such disrupts the gen-
erally clear separation between, on the one hand, a state and its citizens and, on
the other hand, other states and their distinct sovereign spheres. The concept
of ‘refugeehood’ is based on the flight from one sovereign state into the power
and jurisdiction of another and thereby across the borders that normally sepa-
rate inclusion and exclusion of membership. While the primary responsibility for
nationals theoretically remains with the state of origin, the refugee is unwilling
or unable to avail her- or himself of protection of the country of origin, which is
either the persecutor itself or incapable of protecting its citizens from harm. The
first commentary to the 1951 Convention characterised refugeehood primarily
through this ruptured bond between a state and its citizens.25 This ruptured
bond makes the refugee a specific kind of foreigner to whom the new destination
society owes specific duties.26 As such, refugee status has and still “represents a
privileged form of migration”.27
Flight from violence and conflict has a distinct and disputed place in the evo-
lution of international refugee and asylum law. Since the 1950s, both the field
of law and the notion of who is worthy of protection have expanded. The 1951
Convention was adopted decades ago, and contemporary shortcomings in its

22 United Nations Security Council, ‘Resolution 688’ (UN Doc. S/RES/688, 1991). United
­Nations Security Council, ‘Resolution 1008’ (UN Doc. S/RES/1008, 1995). United Nations
Security Council, ‘Resolution 1199, The Situation in Kosovo’ (UN Doc. S/RES/1199, 1998).
23 Aranki, Dalia and Kalis, Olivia, ‘Limited Legal Status for Refugees from Syria in Lebanon’, 47
Forced Migration Review (2011) 17, at 17.
24 Phillips, Melissa and Starup, Kathrine, ‘Protection Challenges of Mobility’, 47 Forced Migration
Review (2011) 27, at 28. For UNHCR’s definition of ‘protracted refugee situations’, see United
Nations High Commissioner for Refugees, UNHCR Global Trends 2014: World at War (2015),
available online at http://www.unhcr.org/556725e69.pdf (last visited 1 August 2018), at 11.
25 Grahl-Madsen, Atle, Commentary of the Refugee Convention 1951 (Articles 2–11, 13–37) (1997),
available online at http://www.refworld.org/docid/4785ee9d2.html (last visited 1 August
2018), at 73ff. Shacknove, Andrew E., ‘Who Is a Refugee?’, 95 Ethics (1985) 274, at 275.
26 Durieux, Jean-François, ‘Three Asylum Paradigms’, 20 International Journal on Minority and
Group Rights (2013) 147, at 148.
27 Zolberg, Aristide R., Suhrke, Astri and Aguayo, Sergio, Escape from Violence. Conflict and the
Refugee Crisis in the Developing World (Oxford University Press, 1992), at 9.
 Introduction 7
application might stem from being outdated. While the Convention is still at
the centre of global refugee protection, regional refugee instruments have de-
veloped and expanded the exclusive concept of the Convention refugee. UN-
HCR’s mandate has broadened in this regard and now covers many more persons
of concern – including other de facto but not de jure refugees. Persecution by
reason of the Convention grounds is no longer the essential criterion to distin-
guish a refugee from other forced migrants in many African, Latin American
and Asian countries. The extended refugee definitions specifically cover persons
fleeing generalised situations of violence – at least in legal theory. In contrast to
those regional instruments containing broader refugee definitions, the EU has
preserved the 1951 Convention’s terminological distinction between refugees
and others. Also, in the EU asylum law scheme, an EU-specific protection status
for other categories of forced migrants was constituted in the form of subsidiary
protection. Over the last decade, the substantive rights attached to subsidiary
protection were constantly aligned with those of refugee protection – ­reducing
the difference between the protection statuses to nearly mere terminology.
With the Syrian conflict becoming more protracted, displacement numbers have
­increased. The receiving host states in the EU, fearing its consequences, have
reversed this development.
Nonetheless, beneficiaries of subsidiary protection, sometimes referred to as
‘survival migrants’ or “persons who are outside their country of origin because
of an existential threat for which they have no access to a domestic remedy or res-
olution”, 28 are still – in protection terms – in line behind Convention refugees.
Persons fleeing climate change, other forms of natural disasters or economic
downfall are clearly at the end of the protection queue. However, once they have
reached Europe, their return is equally restricted by the regime of human rights
law, while the hardship that would be endured on return is measured by regional
human rights law standards.

States have been gradually trying to fill some of these gaps. But they have
been doing so in very particular rather than overarching ways. […] Sources
of ‘complementary protection’ have emerged to address the grey area be-
tween these extremes of ‘voluntary, economic migrant’ and ‘refugee’. 29

The various existing protection regimes for asylum seekers,30 including refugees,
beneficiaries of subsidiary protection and protégés of non-­refoulement, ­struggle
with both their own legal status and their application to the contemporary factual

28 To relate to the notion created by Betts, Alexander, ‘Survival Migration: Conflicting Refugee
Identities in Africa’, in S. Kneebone, D. Stevens and L. Baldassar (eds.), Refugee Protection and
the Role of Law: Conflicting Identities (Routledge, 2014), 174, at 178.
29 Ibid., at 177.
30 Following UNHCR’s definition, an “asylum-seeker is someone whose request for sanctuary
has yet to be processed”, see http://www.unhcr.org/asylum-seekers.html (accessed: 10 March
2017).
8 Introduction
displacement situation.31 The context of violence poses an additional challenge
to the application of relevant laws. The determination of status depends on the
characterisation of the violence that claimants of protection have encountered.32
One has to assess whether generalised violence affects civilians as extensive collat-
eral damage and brings about negative consequences of indiscriminate violence
occurring during the conflict. Alternatively, such violence may be persecutory
and target specific individuals directly, even if it is covered and concealed by
the general situation of conflict. Contemporary conflicts and the legal reactions
mirror this ‘war flaw’33 – namely the uncertainty in the legal assessment of the
conflict and its resulting displacement.
A major challenge in the application of the legal framework remains the
complexity and availability of information in conflict contexts. The complexity
of conflicts, the multitude of actors involved and their varying composition,
motivation and power blur the assessment of military tactics, their objectives
and their targets. One, however, needs to have a clear determination, as the
distinction between the applications of refugee status or complementary forms
of protection depends solely on this distinction between the individual perse-
cuted for certain reasons and the individual affected by general violence in the
country.

1.3 The European struggle with asylum realities

Refugees, people in need of international protection and migrants cross bor-
ders, the high seas, and travel through different jurisdictions and, accordingly,
varying legal cultures. European asylum statistics illustrate that once they have
reached the borders of Europe, most people fleeing conflict become involuntary
participants in an asylum lottery.34 It is the result of diverging interpretations
of the applicable legislation relating to the question of which instrument to en-
gage and which status to grant. Legal uncertainties are further increased due
to the individual Member States’ different political incentives and approaches.

31 “[T]here has been no new treaty-based response to the changing refugee situation”, Corkery,
Allison, ‘The Contribution of the UNHCR Executive Committee to the Development of Inter-
national Refugee Law’, 13 Australian International Law Journal (2006) 97, at 98.
32 UNHCR: Farrell and Schmitt, ‘The Causes, Character and Conduct of Armed Conflict, and the
Effects on Civilian Populations, 1990–2010’ (UN Doc. PPLA/2012/03, 2012).
33 “The ‘war-flaw’ is seen to consist in the failure of international protection to analyse claims
by persons fleeing armed conflict by reference to the correct international law framework.”
Storey, Hugo, ‘Armed Conflict in Asylum Law: The “War-Flaw”’, 31 Refugee Survey Quarterly
(2012) 1, at 1. See also, Storey, Hugo, ‘The “War Flaw” and Why it Matters’, in D. Cantor and
J.-F. Durieux (eds.), Refuge from Inhumanity? War Refugees and International Humanitarian
Law (Brill, 2014).
34 Asylum Information Database, Not there Yet: An NGO Perspective on Challenges to a Fair and
Effective Common European Asylum System. Annual Report 2012/2013 (2013), available online at
http://www.asylumineurope.org/sites/default/files/shadow-reports/not_there_yet_02102013.
pdf (last visited 1 August 2018).
 Introduction 9
This directly causes inconsistent recognition rates and divergence in the material
scope of rights, even for people from the same country of origin.35

While […] States have abided by their international duty not to deport peo-
ple to certain conditions, they have tended to be less diligent in looking to
international law to define what legal status those people should be given.
Accordingly, protection has varied over time from identical rights to Con-
vention refugees, to a tolerated status with protection from refoulement but
little more.36

Contemporary conflicts, such as in Syria, are chosen as examples and points of

reference. They illustrate the diverging interpretations of and state practice in
the application of the different fields of law and the obstacles inherent in a sys-
tem lacking commitment to solidarity between affected states. These conflicts
not only challenged the interpretation of the 1951 Convention, the relatively
young EU asylum system and their application in the domestic setting, but also
marked a shift in the application of the Convention’s legal framework and com-
plementary forms of protection. Syrian applications were the first to be subjected
to a real distinction between refugee status and, at that time, still quite newly
transposed, subsidiary protection status.37 Since 2013, Syrians have ranked as
the number one distinct displaced group from a common country of origin and,
since 1992, have likewise constituted the largest group of asylum applicants in
Europe.38 Following the outbreak of the conflict, the alignment of the differ-
ent status and legal instruments has changed.39 While at the beginning of the

35 O’Sullivan, Maria, ‘The Intersection between the International, the Regional and the Domestic:
Seeking Asylum in the UK’, in S. Kneebone (ed.), Refugees, Asylum Seekers and the Rule of Law:
Comparative Perspectives (Cambridge University Press, 2009), 228, at 275. Battjes, Hemme,
European Asylum Law and International Law (Martinus Nijhoff Publishers, 2006), at 609ff.
36 McAdam, Jane, Complementary Protection in International Refugee Law (Oxford University
Press, 2007), at 5.
37 European Legal Network on Asylum & European Council on Refugees and Exiles, Information
Note on Syrian Asylum Seekers and Refugees in Europe (2013), available online at http://www.
ecre.org/wp-content/uploads/2016/05/Information-Note-on-Syrian-Refugees-in-­Europe-
29112013-final_website.pdf (last visited 1 August 2018). Ostrand, Nicole, ‘The Syrian Refugee
Crisis. A Comparison of Responses by Germany, Sweden, the United Kingdom, and the United
States’, 3 Journal on Migration and Human Security (2015) 255.
38 United Nations High Commissioner for Refugees, Wars in Syria and Iraq Drive Highest A ­ sylum
Numbers in 22 Years (2015), available online at http://www.unhcr-centraleurope.org/en/
news/2015/wars-in-syria-and-iraq-drive-highest-asylum-numbers-in-22-years.html (last visited
1 August 2018).
39 Subsidiary protection rates for Syrians in 2015 in Cyprus were 97.8%, 92.7% in Malta, 90.1% in
Spain, and 87.5% in Sweden. Compared to a subsidiary protection rate of 0.06% in 2015, ­Germany’s
subsidiary protection rate for Syrian applicants increased to 4.2% in April 2016: ­Bundesamt für
Migration und Flüchtlinge, Asylgeschäftsstatistik für den Monat Dezember 2015 (2016), available
online at https://www.bamf.de/SharedDocs/Anlagen/DE/Downloads/­I nfothek/Statistik/
Asyl/201512-statistik-anlage-asyl-geschaeftsbericht.pdf?__blob=publicationFile (last visited 1
August 2018). Bundesamt für Migration und Flüchtlinge, Asylgeschäftsstatistik für den Monat
10 Introduction
conflict, subsidiary protection status was granted widely, the authorities later
granted refugee status in a majority of cases. Germany offers one example of a
changing interpretation, in which the swing of applicable status determination
from subsidiary protection to refugee protection was made. Interestingly, since
2016, this development has been reversed. During the first phase of the conflict,
the response pointed to a quick allocation of the newly transposed subsidiary
protection status: the first instance decisions in the EU28 for Syrian applicants
in 2013 allocated to 62% of the successful applicants subsidiary protection status
and refugee status to 27%.40 Throughout the conflict, the assessment changed
in favour of an application of the 1951 Convention also to conflict-induced
displacement. In 2014, Germany afforded refugee protection to the majority
(20,505 Syrian applicants), while only 3,245 received subsidiary protection.41
The political tension surrounding the Common European Asylum System
(CEAS), the Syrian conflict and concerns about future developments and asylum
numbers have evidently resulted in policy change. Looking at recent statistics
from 2016 to 2018, the high number of Syrian applicants afforded subsidiary
protection status rather than refugee status becomes apparent. Across the EU28,
62% of successful applicants were granted subsidiary protection, and only 32%
were granted refugee status. In Germany, 24,620 Syrians were granted refugee
status, but 46,965 were granted subsidiary protection at the end of 2016. This
increased in 2017, when 55,697 received subsidiary protection, while 34,880
were granted refugee protection.42 Currently, this trend leaves for instance
­German courts with large numbers of appeals from Syrian applicants contesting
their subsidiary protection status.43 While these data do not claim to provide a

April 2016 (2016), available online at https://www.bamf.de/SharedDocs/Anlagen/DE/­

Downloads/Infothek/Statistik/Asyl/201604-statistik-anlage-asyl-geschaeftsbericht.pdf?__
blob=publicationFile (last visited 1 August 2018).
40 Bitoulas, Alexandros, Asylum Applicants and First Instance Decisions on Asylum Applications:
2013 (2014), available online at http://ec.europa.eu/eurostat/documents/4168041/5948933/
KS-QA-14-003-EN.PDF/3309ae42-431c-42d7-99a3-534ed5b93294 (last visited 1 August
2018). That amounted to 9,920 applicants from Syria receiving refugee protection while 22,635
Syrians were granted subsidiary protection.
41 For the EU-28, Syrians were granted 66% refugee status and only 29% subsidiary protection
status in first instance decisions in the 4th quarter of 2014, see id., at 20.
42 Eurostat, First Instance Decisions by Citizenship and Outcome, Selected Member States, 4th Quarter
2016 (2017), available online at http://ec.europa.eu/eurostat/statistics-explained/index.php/
File:First_instance_decisions_by_citizenship_and_outcome,_selected_Member_States,_4th_
quarter_2016.png (last visited 1 August 2018). BAMF, ‘Asylgeschäftsbericht’, 2017, at 2, availa-
ble online at http://www.bamf.de/SharedDocs/Anlagen/DE/Downloads/Infothek/Statistik/
Asyl/201712-statistik-anlage-asyl-geschaeftsbericht.pdf (last visited 1 August 2018).
43 See further PRO ASYL, Neue Asylpraxis beim BAMF: Immer mehr Syrerinnen und Syrer
­kriegen „nur“ subsidiären Schutz (2016), available online at https://www.proasyl.de/news/
neue-­a sylpraxis-beim-bamf-immer-mehr-syrerinnen-und-syrer-kriegen-nur-subsidiaeren-
schutz/ (last visited 1 August 2018). Legal Tribune Online, Wei-terhin voller Flüchtlingsschutz
für Syrer. VG Münster widerspricht OVG (2017), available online at http://www.lto.de/recht/­
nachrichten/n/vg-muenster-urteil-14-a-2316-16-a-syrer-fluechtlingsstatus-widerspricht-ovg
(last visited 1 A
­ ugust 2018). On the ‘upgrade-appeals’: Informationsverbund Asyl und Migration,
 Introduction 11
valid statistical analysis of the overall application outcomes, it reflects the trend
in status determination and changes in the allocation of protection status. The
need to consistently address conflict-induced displacement, on the one hand,
and the evident change and evolution of the applicable laws, on the other hand,
highlight the relevance of this book’s topic.

1.4 The structure and the applicable law

Most ambiguity in the assessment of claims from persons fleeing countries in
conflict is caused by uncertainty regarding the general application of the various
pertinent protection instruments, as well as the interpretation of their respective
status determination provisions. For this reason, the book employs treaty inter-
pretation of the instruments applicable to people fleeing violence and conflict in
accordance with the 1969 Vienna Convention on the Law of Treaties (VCLT),
particularly regarding the interpretation of the 1951 Convention and its defi-
nition of a refugee. Divergent interpretative practices in the application of the
instruments are highlighted in this book in order to question whether one can
identify a progressive interpretation of the instruments. In this regard, subse-
quent state practice in relation to the international and regional instruments
and their transposing legislation is examined.44 The diverging interpretations in
the domestic setting, especially by asylum determining authorities and national
courts, are illustrative of the deficiencies in the interpretation of the legal bases.
Since this book does not aim to provide a comprehensive picture of subsequent
state practice, but puts in focus the primary means of treaty interpretation, and
the analysis of jurisprudence of the regional courts, reference to domestic juris-
prudence is given to illustrate the application of the different interpretations, but
not as evidence of uniform practice.45 When turning to the supranational and
European levels, the jurisprudence of a) the Court of Justice of the EU (CJEU)
and b) the European Court of Human Rights (ECtHR) must be put in focus.
In contrast to domestic jurisprudence, the two courts play a decisive role in the
interpretation of the pertinent legal instruments, as they are mandated to lead
the interpretation of EU secondary law instruments and regional human rights,
respectively. The CJEU, by means of a preliminary ruling, provides binding

Differential Treatment of Specific Nationalities in the Procedure (2018), available online at http://
www.­a sylumineurope.org/reports/country/germany/asylum-procedure/­t reatment-specific-
nationalities (last visited 1 August 2018).
44 “Times have changed. To an extent almost unimaginable even thirty years ago, national courts
in this and other countries are called upon to consider and resolve issues turning on the correct
understanding and application of international law, not on an occasional basis, now and then,
but routinely, and often in cases of great importance.” Lord Bingham, ‘Foreword’, in S. Fatima
(ed.), Using International Law in Domestic Courts (Hart, 2005).
45 For these reasons, the book also refrains from a breakdown of the different pillars of state prac-
tice in asylum matters, for instance by balancing the role of the different determining authorities,
ministries involved and asylum courts or chambers and their position in the domestic hierarchy
of the judiciary and the state.
12 Introduction
interpretative guidance on the Union law instrument in question, while the
­ECtHR, when delivering a binding judgement against a Member State, evolves
the interpretation of the European Convention on Human Rights and Fun-
damental Freedoms (ECHR).46 This book provides a comprehensive coverage
of the legal developments concerning the protection of people fleeing conflict.
Highlighting the changes in the interpretation and the current state of the art in
the interpretation and application of the three individual protection pillars is the
primary goal of this research.
The structure of this book reflects the hierarchy47 of the available protection
instruments in Europe and the scope of the entitlement of individual claimants
from countries affected by conflict and violence. The first legal point of reference
in this book is the detailed and most exclusive international refugee law frame-
work. Its application to situations of conflict has been rejected for a considerable
time, and only in recent years has this evaluation been subject to change, albeit
falling short of eradicating all obstacles pertaining to claimants from countries in
conflict. Refugee law and refugee status offer not only the best-established legal
framework but also the one with the most substantive protection. The major
question at issue is whether the instrument created nearly 70 years ago applies at
all and, if so, what hurdles have to be cleared in interpreting its eligibility criteria.
The UNHCR, as a subsidiary organ of the UN General Assembly, is the primary
protection actor, and its role includes the monitoring of the 1951 Convention.48
Therefore, its legal nature, as well as the content of its interpretative guidance
concerning conflict-induced displacement, is reviewed. The second part of the
first chapter concerns the interpretation of the 1951 Convention in the context
of conflict. The application of the Convention in general to conflict-induced
displacement is considered first. Second, the conflict-sensitive interpretation of

46 As an additional subsidiary means of interpretation, this book examines the position of the UN-
HCR and its interpretative guidance, and debates whether guidance from neighbouring fields
of law, specifically international humanitarian law (IHL), can be drawn to interpret the three
eligibility clauses. Further literature review, reference to legal debates as well as reports of inter-
national organisations (IOs) and non-governmental organisations (NGOs) are essential to allow
for a comprehensive analysis and put the current legal developments into context.
47 This book considers the hierarchy of the three pertinent fields of law regarding their scope of
protection and aligned substantive rights. It does not understand these three fields of law as
being in a hierarchical relationship, as such. Furthermore, it is beyond the scope of this book
to analyse the relationship between the three fields of law in depth and their interaction is only
referred to if essential in the conflict-context.
48 While the UNHCR takes the lead in refugee protection matters, human rights bodies have also
engaged in the field when it comes to fundamental obligations, see United Nations Committee
Against Torture, ‘Question of Western Sahara Views of the Committee against Torture under
Article 22, Concerning Communication No. 13/1993 submitted by Mr. Balabou Mutombo
(Annual Report 1994)’ (UN Doc. A/49/44, 1995), at 45. Human Rights Committee, ‘General
Comment No. 20: Article 7’ (UN Doc. HRI\GEN\1\Rev.1, 1994), at 30. Similarly, Human
Rights Committee, ‘Views of the Human Rights Committee in respect of communication No.
469/1991, Charles Chitat Ng v. Canada, adopted on 5 November 1993, paras. 14.2 (Annual
Report 1994, Vol. II)’ (UN Doc. A/49/40, 1993), at 189.
 Introduction 13
its inclusion clause, the eligibility criteria for refugee protection of Article 1 A(2)
are addressed: first and foremost, persecution, its nexus requirement and the
discriminatory Convention grounds, which are relevant to distinguish between
persons considered eligible for international protection in accordance with the
1951 Convention and those who are not.
The second chapter examines the relevant and evolving asylum law framework
in the EU. Compared to developments in Africa and Latin America, the EU
has established a new and harmonised form of complementary protection, one
that still needs to be clarified in its application. Following the experiences of the
Balkan conflicts of the mid-1990s, the EU set the goal of establishing a com-
mon asylum system with harmonised standards and procedures in 1999 and has
since then communitarised asylum law. In the course of creating the CEAS, EU
Member States established a complementary protection mechanism, based on
the Qualification Directive (QD) (2004/83/EC) and the Recast Qualification
Directive (2011/95/EU), namely the so-called subsidiary protection status.
Following the transposition of the QD into national laws, subsidiary protection
status has, however, been applied incoherently in EU Member States and their
asylum and judicial systems, due to ambiguity in its terminology and scope of
application. Only in the past few years has the CJEU reviewed those matters in
an attempt to guide the Member States’ implementation of Union law and to
clarify the scope of the QD, its relation to refugee law and human rights law, as
well as specific terms of its provisions.49
The field of European human rights is analysed in the third main chapter of
this book using two separate approaches. The first part of the chapter exam-
ines the ECHR’s principle of non-refoulement as it can be considered protection
of last resort for those fleeing a conflict or a certain level of violence in their
countries of origin. In the case that no primary or secondary protection status,
i.e. refugee or subsidiary protection, is granted to the individuals concerned,
human rights law delivers minimum protection from being forcibly returned to
a country of origin. The second part of the chapter turns to the extraterritorial
application of the ECHR and the principle of non-refoulement. In this analysis,
the principle acts as first protection mechanisms for persons who are travelling
to Europe but have not yet entered European territory. Recent jurisprudential
developments are put in focus to determine the limitations of the EU’s external
immigration management and border controls.

49 Excluded from the scope of this book are contemporary considerations on the functioning of
the CEAS, in particular the current malfunctions of the Dublin system. Burden-sharing and
commitment to solidarity among the EU states is essential for the proper functioning of the sys-
tem and indicative of its current failing. The distribution of asylum seekers and the allocation of
responsibilities, however, is of no relevance for the interpretation of the eligibility criteria and the
inclusion clause of Article 15 (c) (Recast) QD in the context of violence and conflict. While it will
be decisive to revise the current EU migration policies, create a new mechanism of distribution
and clarify the existing mechanism of burden-sharing, this topic is left for another examination.
14 Introduction
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16 Introduction
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OCHA, ‘OCHA and Slow Onset Emergencies’, 6 OCHA Occassional Policy Briefing
Series (2011).
Ostrand, Nicole, ‘The Syrian Refugee Crisis. A Comparison of Responses by Germany,
Sweden, the United Kingdom, and the United States’, 3 (3) Journal on Migration and
Human Security 255 (2015).
O’Sullivan, Maria, ‘The Intersection between the International, the Regional and the
Domestic: Seeking Asylum in the UK’, in S. Kneebone (ed.), Refugees, Asylum Seekers
and the Rule of Law: Comparative Perspectives (Cambridge University Press, 2009).
Parliamentary Assembly of the Council of Europe, ‘Environmentally Induced Migration
and Displacement: A 21st Century Challenge’ (Doc. 11785, 2008).
Phillips, Melissa and Starup, Kathrine, ‘Protection Challenges of Mobility’, 47 Forced
Migration Review 27 (2011).
PRO ASYL, ‘Neue Asylpraxis beim BAMF: Immer mehr Syrerinnen und Syrer k­ riegen
„nur” subsidiären Schutz’, 19 May 2016, available online at https://www.proasyl.
de/news/neue-asylpraxis-beim-bamf-immer-mehr-syrerinnen-und-syrer-kriegen-nur-­
subsidiaeren-schutz/ (last visited 1 August 2018).
Shacknove, Andrew E., ‘Who Is a Refugee?’, 95 (2) Ethics 274 (1985).
Steiner, Niklaus, Gibney, Mark and Loescher, Gil (eds.), Problems of Protection. The
­U NHCR, Refugees, and Human Rights (Routledge, 2003).
Storey, Hugo, ‘Armed Conflict in Asylum Law: The “War-Flaw”’, 31 (2) Refugee Survey
Quarterly 1 (2012).
Storey, Hugo, ‘The “War Flaw” and Why it Matters’, in D. Cantor and J.-F. Durieux
(eds.), Refuge from Inhumanity? War Refugees and International Humanitarian Law
(Brill, 2014).
UNHCR: Farrell and Schmitt, ‘The Causes, Character and Conduct of Armed C ­ onflict,
and the Effects on Civilian Populations, 1990–2010’ (UN Doc. PPLA/2012/03, 2012).
United Nations Committee Against Torture, ‘Question of Western Sahara Views of
the Committee against Torture under Article 22, Concerning Communication
No. 13/1993 submitted by Mr. Balabou Mutombo (Annual Report 1994)’ (UN Doc.
A/49/44, 1995).
United Nations High Commissioner for Refugees, ‘Statement by Mrs. Sadako Ogata,
United Nations High Commissioner for Refugees, to the 54th Session of the United
Nations Commission on Human Rights’, 19 March 1998, available online at http://
www.unhcr.org/3ae68fd48.html (last visited 1 August 2018).
United Nations High Commissioner for Refugees, ‘Agenda for Protection’, October 2003,
available online at http://www.unhcr.org/protection/globalconsult/3e637b194/
agenda-protection-third-edition.html (last visited 1 August 2018).
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­M igration: A 10-Point Plan of Action’, January 2007, available online at http://www.
refworld.org/docid/45b0c09b2.html (last visited 1 August 2018).
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America, Western Africa, Eastern Africa and Southern Asia - A Two Year Project’,
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August 2018).
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migration in West Africa Statement by the Assistant High Commissioner – P ­ rotection,
UNHCR Regional Conference on Refugee Protection and International Migration in
 Introduction 17
West Africa’, 13 November 2008, available online at http://www.unhcr.org/en-au/­
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africa-statement-assistant.html (last visited 1 August 2018).
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tional Protection of Persons Fleeing Armed Conflict and Other Situations of Violence.
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www.refworld.org/docid/50d32e5e2.html (last visited 1 August 2018).
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Maintain Open Access for Fleeing Syrians’, 16 July 2013, available online at http://
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Major Host Countries for Syrian Refugees in Jordan’, 4 May 2014, available online at
http://www.unhcr.org/536652a39.html (last visited 1 August 2018).
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Trends in Industrialized Countries’, 26 March 2015, available online at http://www.
unhcr.org/551128679.html (last visited 1 August 2018).
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Asylum Numbers in 22 Years’, 26 March 2015, available online at http://www.­u nhcr-
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numbers-in-22-years.html (last visited 1 August 2018).
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at War’, 18 June 2015, available online at http://www.unhcr.org/556725e69.pdf (last
visited 1 August 2018).
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ment in 2015’, 20 June 2016, available online at http://www.unhcr.org/statistics/­
unhcrstats/576408cd7/unhcr-global-trends-2015.html (last visited 1 August 2018).
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and the Refugee Crisis in the Developing World (Oxford University Press, 1992).
2 Refugee protection in
the context of conflict
and violence

The international legal framework for the protection of refugees, in its current
form, developed after the Second World War. As a universal instrument, the
1951 Convention has been subsequently underpinned by the adoption of re-
gional refugee instruments and the creation of various complementary protection
mechanisms. Since extensive research has already been conducted concerning
international refugee law and its protection regime,1 the following analysis pro-
ceeds without a general overview of the field of refugee law and focuses specifi-
cally on the protection of persons fleeing violence and conflict.
Divergence in the application of the 1951 Convention indicates the existence
of implementation gaps in the wider refugee protection regime in Europe and
beyond. That has attracted and will continue to attract attention from research-
ers from various disciplines. However, before addressing implementation mat-
ters, clarity on the legal applicability of the respective instrument to the situation
in question must be provided. If there is no legal basis for any implementation
at all, then the focus must be shifted to protection offered by other legal instru-
ments. Therefore, if the 1951 Convention is not applicable to conflict-induced
displacement, implementation gaps are not an issue.
This analysis primarily examines the normative foundation as to whether
the 1951 Convention is generally designed to cover and protect persons fleeing

1 The most prominent ones being, Goodwin-Gill, Guy S. and McAdam, Jane, The Refugee in
­International Law (3rd ed., Oxford University Press, 2007). Hathaway, James C. and ­Foster,
­M ichelle, The Law of Refugee Status (2nd ed., Cambridge University Press, 2014). Betts, A ­ lexander
and Loescher, Gil (eds.), Refugees in International Relations (2010). Costello, Cathryn, The ­Human
Rights of Migrants and Refugees in European Law (Oxford University Press, 2016). Feller, Erika,
Türk, Volker and Nicholson, Frances (eds.), Refugee Protection in International Law. ­UNHCR’s
Global Consultations on International Protection (2003). Brownlie, Ian and Goodwin-Gill, Guy S.
(eds.), ­Basic Documents on Human Rights (5th ed., 2006). Gammeltoft-Hansen, Thomas, Access to
Asylum: International Refugee Law and the Globalisation of Migration C ­ ontrol (Cambridge Univer-
sity Press, 2011). Heijer, Maarten d., Europe and Extraterritorial Asylum (Hart, 2012). Kugelmann,
Dieter, ‘Refugees’ (Max Planck Encyclopedia of Public International Law, 2010). Zimmermann,
­A ndreas (ed.), The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol. A Com-
mentary (2011). Weis, Paul, The Refugee Convention, 1951: The Travaux Préparatoires Analysed,
with a Commentary by the Late Dr Paul Weis (Cambridge University Press, 1995). ­Hailbronner, Kay
and Thym, Daniel (eds.), EU Immigration and Asylum Law. A Commentary (2016).
 International refugee law 19
situations of conflict. For this purpose, the chapter firstly introduces the broader
field of protection, including the extended refugee definitions, to take compre-
hensive account of refugee and regional protection explicitly addressing flight
from conflict and to highlight the centrality of the 1951 Convention. Secondly,
the focus of the chapter shifts to the United Nations High Commissioner for
Refugees (UNHCR). As the UN’s designated organ for the protection of ref-
ugees mandated to oversee implementation, including the interpretation of the
Convention, its interpretative approach to the Convention has greatly influenced
treaty interpretation by (national) bodies as well as state practice. Following an
elaboration of its mandate, particularly concerning the legal instruments, the
changing policy of the Office is highlighted and examined on the basis of vari-
ous output documents. Its prominent role in the interpretation and supervision
of the Convention, however, only goes so far. Therefore, the main part of the
­chapter covers a detailed analysis of the 1951 Convention and its refugee defini-
tion in Article 1 A (2). Employing the traditional means of treaty interpretation
and embedding it in state practice and scholarly literature, the question to be an-
swered is whether the conflict context changes the application of the definition.
Due to the existing literature on general refugee law and the special attention
paid to conflict and violence, only the pertinent parts of the refugee definition
that are relevant for conflict-induced status determination are analysed. In a last
step, international refugee law is embedded in the EU asylum law framework, as
the geographical scope of this analysis centres around persons fleeing to Europe
to escape from conflict and violence.

2.1 An introduction to the 1951 Convention as the

primary refugee protection instrument
The 1951 Convention has constituted the cornerstone of the international pro-
tection regime since its entry into force on 22 April 1954.2 State parties have
affirmed their commitment to the Convention in 1967:

[w]e, representatives of States Parties to the 1951 Convention relating to

the Status of Refugees and/or its 1967 Protocol […] [r]eaffirm […] that the
1951 Convention, as amended by the 1967 Protocol, has a central place in
the international refugee protection regime […] Solemnly reaffirm our com-
mitment to implement our obligations under the 1951 Convention and/
or its 1967 Protocol fully and effectively in accordance with the object and
purpose of these instruments […],3

2 United Nations General Assembly, ‘Report of the Forty-Fifth Session of the Executive Commit-
tee of the High Commissioner’s Programme’ (UN Doc. A/AC.96/839, 1994), at 19 (d).
3 United Nations High Commissioner for Refugees, Declaration Reaffirming Principles of 1951
Refugee Convention Adopted (2001), available online at http://www.unhcr.org/3c18e6054.html
(last visited 1 August 2018), at preambular paragraph.
20 International refugee law
and in 2011:

[w]e reaffirm that the 1951 Convention relating to the Status of Refugees
and its 1967 Protocol are the foundation of the international refugee pro-
tection regime and have enduring value and relevance in the twenty-first
century.4

The 1951 Convention provides the legal basis for the well-developed protection
regime for refugees. The regime has a narrow personal scope of application,
meaning that only a clearly defined and limited group of individuals falls within
its ambit.5 Its definition of ‘refugee’ demarcates between de jure refugee status,
migrants and forced de facto refugees. Although it was created after the Second
World War against a background of massive, post-war displacement flows, the
application of the 1951 Convention to conflict-induced displacement had, for
quite some time, been rejected and is still disputed – not only on political but
also on legal grounds.6 In the 1950s, when the Convention was adopted, it
addressed more than one million persons displaced by the conflict caused by
National Socialism and by the 1990s had garnered new addressees displaced by
the dissolution of Communist states.7 And yet, the Convention was designed to
protect individuals persecuted in the context of the 1940s and did not include a
group-based approach to displacement. The tension still remains. The political
background then and today explains the restraints concerning the definition of
a Convention refugee in the context of conflict. Given the unmatched numbers
of conflict-induced displaced persons in recent years and no reasons to expect a
significant decline in these numbers in the near future, the adequacy of the 1951
Convention in addressing contemporary challenges is again called into question.
Like any other international treaty, in order to maintain its legitimacy for
contemporary and future developments, the application of the 1951 Convention
requires a balancing exercise between the original interpretation of the treaty
text and adaptation to changing realities. In this respect, caution should be ex-
ercised so as not to apply the Convention “in an improperly or overly restrictive
manner (but based on) a purposive and dynamic interpretation”.8 In particular,
the human rights law movement has paved the way for a more sensitive and

4 United Nations High Commissioner for Refugees, ‘Ministerial Communiqué’ (UN Doc. HCR/
MINCOMMS/2011/6, 2011), at paragraph 2.
5 “In contrast to other destitute people the refugee is eligible for many forms of international as-
sistance, including material relief, asylum, and permanent resettlement”, Shacknove, Andrew E.,
‘Who Is a Refugee?’, 95 Ethics (1985) 274, at 277.
6 Goodwin-Gill, Guy S. and McAdam, Jane, supra note 1, at 126.
7 Feller, Erika, ‘The Evolution of the International Refugee Protection Regime’, 5 Washington
University Journal of Law & Policy (2001) 129, at 129.
8 AC (Syria), [2011] NZIPT 800035, New Zealand: Immigration and Protection Tribunal (2011),
at para. 62. And Refugee Appeal No. 74665, RSSA per Haines QDC, New Zealand: Refugee Sta-
tus Appeals Authority (2004), at 56.
 International refugee law 21
comprehensive interpretation which addresses contemporary challenges9 beyond
the traditional understanding of the treaty terminology. Prominent examples
of such awareness that have been ‘borrowed’ from human rights law by refugee
law include the role of non-state armed groups and actors as persecutors, sen-
sitive interpretations of gender issues, sexual orientation or the discriminatory
Convention ground of membership of a particular social group (MPSG).10 An
evolutive interpretation11 is mostly linked to the treaty’s object and purpose
that is indicative of the states’ commitment to “a programme of progressive
development”.12 This evolutive interpretation, nonetheless, remains restricted
and conditioned by the general rules of treaty interpretation as laid down in
the Vienna Convention on the Law of Treaties (VCLT), Article 31 and in sup-
plement Article 32 and yet is endorsed by it.13 However, even evolutive treaty
interpretation can only go so far and the terms of the Convention need thorough
and careful interpretation.
Refugee law has been criticised explicitly for protection gaps concerning its ap-
plicability to current realities. “[T]he adaptation of protection norms and instru-
ments has been insufficient to keep pace with the changing dynamics of forced
displacement.”14 In this regard, one has to distinguish between a) normative
protection gaps that result from the inapplicability of the Convention to cer-
tain groups of de facto refugees with a simultaneous absence of other protection
instruments; and b) implementation gaps that result from the inadequate prac-
tical application of an otherwise pertinent instrument. Before taking a stand,
it must be assessed whether the convention applies at all to conflict-induced

9 Nolte states in his work for the ILC in this regard that treaties can “change over time”, “evolve
according to the needs of the international community”, however, there is always some form
of tensions between “the requirements of stability and change in the law of treaties” in: N ­ olte,
Georg, ‘Treaties Over Time in Particular; Subsequent Agreement and Practice’, in United
­Nations Organisation (ed.), Report of the International Law Commission (2008), at 365, para. 1f.
10 Fitzpatrick, Joan, ‘Revitalizing the 1951 Convention’, 9 Harvard Human Rights Journal
(1996), at 230f.
11 See in a detailed analysis, Arato, Julian, ‘Subsequent Practice and Evolutive Interpretation. Tech-
niques of Treaty Interpretation over Time and Their Diverse Consequences’, 9 The Law & Prac-
tice of International Courts and Tribunals (2010) 443.
12 Koskenniemi, Martti, ‘Fragmentation of International Law: Difficulties Arising from the Di-
versification and Expansion of International Law, in: Report of the Study Group of the Interna-
tional Law Commission’ (UN Doc. A/CN.4/L.682, 2006).
13 Advisory Opinion: The Right to Information on Consular Assistance in the Framework of the Guar-
antees of the Due Process of Law, OC-16/99, Inter-American Court of Human Rights (1999), at
114. “[E]volutive interpretation is consistent with the general rule of treaty interpretation estab-
lished in the 1969 Vienna Convention”, Rietiker, Daniel, ‘The Principle of “Effectiveness” in the
Recent Jurisprudence of the European Court of Human Rights. Its Different Dimensions and Its
Consistency with Public International Law – No Need for the Concept of Treaty Sui Generis’, 79
Nordic Journal of International Law (2010) 245, at 255.
14 Zetter, Roger, ‘Protecting Forced Migrants. A State of the Art Report of Concepts, Chal-
lenges and Ways Forward’ (Federal Commission on Migration, 2014), at 27. Cantor, David
and Durieux, Jean-François, ‘Introduction’, in D. Cantor and J.-F. Durieux (eds.), Refuge from
In-humanity? War Refugees and International Humanitarian Law (Brill, 2014), at 5.
22 International refugee law
displacement. Either the Convention explicitly rejects persons fleeing conflict
from its scope of protection and from the de jure refugee status, or alternatively,
one rather encounters implementation gaps, the result of misconceptions of the
Convention and inconsistencies in its application by state parties.

2.2 The 1951 Convention and the regional

extended instruments
The 1951 Convention is the primary universal instrument of refugee law, but
since its adoption, additional regional refugee law instruments have been cod-
ified. Further, while the protection of persons fleeing conflict and situations of
general violence is disputed under the 1951 Convention, the regional refugee
conventions have, on paper, extended their scope. These instruments were de-
veloped some decades after the 1951 Convention in order to cover the specific
and different characteristics of regional displacement in Africa, Latin America,
Asia and the Arab states. They have incorporated risks stemming from indis-
criminate and widespread situations of violence into their framework of refugee
protection and, as such, go beyond the definition of refugee enshrined in the
1951 Convention. For this analysis, the normative characteristics of the regional
instruments are of relevance and are displayed in the following. Nonetheless, a
report of the actual practice of and politics behind the regional instruments is
beyond the scope of this book.
The binding Organisation of African Unity (OAU) Refugee Convention en-
tered into force in 1974. Article 1 encompasses both the 1951 refugee definition
and an extended definition, unique to Africa.15 Paragraph 2 adds:

The term ‘refugee’ shall also apply to every person who, owing to external
aggression, occupation, foreign domination or events seriously disturbing
public order in either part or the whole of his country of origin or nation-
ality, is compelled to leave his place of habitual residence in order to seek
refuge in another place outside his country of origin or nationality.

The 1984 Cartagena Declaration is the second regional refugee instrument that
extends protection explicitly to people fleeing generalised situations of violence.
It is considered the regional response of Latin American states to the drafting
and entry into force of the OAU Convention. Its refugee definition in conclusion
III (3) states:

[…] 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

15 Doutum, M. H., ‘Opening Statement at the OAU/UNHCR meeting of Government and

Non-Government Technical Experts on the 30th Anniversary of the 1969 OAU Convention
Governing the Specific Aspects of the Refugee Problem in Africa, 27–29 March, h.E. ­A mbassador
Doutum’ (Conakry, Guinea, UN Doc. CONF.P/OAU/30th/Report Annex IV), at 48.
 International refugee law 23
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 seri-
ously disturbed public order.

Although the Cartagena Declaration is not a legally binding document, its ref-
ugee definition has extensively influenced or was incorporated into the national
legislation of Latin American states, which, for the most part, previously did not
have specific refugee regulations.16 Due to its incorporation into some states’
national laws, the extended refugee definition has become binding. It now pro-
vides the basis for status determination in some Latin American states, while
remaining a non-binding proposal in others.17
Similar developments resulting in non-binding instruments can be traced to
the Bangkok Principles on the Status and Treatment of Refugees, drafted by the
Asian-African Legal Consultative Organization and the 1994 Arab Convention
on Regulating Status of Refugees in the Arab Countries. Both contain extended
definitions encompassing persons fleeing generalised situations of v­ iolence.
­A rticle 1 (2) of the Bangkok Principles covers:

every person, who owing to external aggression, occupation, foreign domi-

nation or events seriously disturbing public order in either part of the whole
of his country of origin or nationality, is compelled to leave his place of ha-
bitual residence in order to seek refuge in another place outside his country
of origin or nationality,18

while the Arab Convention in Article 1 adds to the 1951 Convention definition
a broad extension of the refugee, as follows:

any person who unwillingly takes refuge in a country other than his
country of origin or his habitual place of residence because of sustained
aggression against, occupation and foreign domination of such country

16 Reed-Hurtado, Michael, The Cartagena Declaration on Refugees and the Protection of People
fleeing Armed Conflict and Other Situations of Violence in Latin America. Division of Interna-
tional Protection (2013), available online at http://www.refworld.org/docid/51c801934.html
(last visited 1 August 2018), at 4. Brazil Declaration. A Framework for Cooperation and Re-
gional Solidarity to Strengthen the International Protection of Refugees, Displaced and Stateless
Persons in Latin America and the Caribbean (2014), available online at http://www.refworld.
org/docid/5487065b4.html (last visited 1 August 2018). United Nations High Commissioner
for Refugees, ‘The Refugee Situation in Latin America: Protection and Solutions Based on the
Pragmatic Approach of the Cartagena Declaration on Refugees of 1984. Discussion Document
UNHCR November 2004’, 18 International Journal of Refugee Law (2006) 252.
17 Despite the incorporation practice, it has been reported that the “[d]eclaration has been seldom
applied in practice, guidance on its interpretation is underdeveloped and national authorities
rarely consult its provisions when providing international refugee protection”, Reed-Hurtado,
Michael, supra note 16, at 5.
18 Asian-African Legal Consultative Organization, ‘Bangkok Principles on the Status and Treat-
ment of Refugees (“Bangkok Principles”)’ (1966).
24 International refugee law
or because of the occurrence of natural disasters or grave events result-
ing in major disruption of public order in the whole country or any part
thereof.19

One can ask whether the creation of these regional extended refugee instru-
ments hints at dissatisfaction with the 1951 Convention in the context of
conflict, or were they simply intended as regional counterparts to supplement
the universal instrument?20 Generally, regional instruments are designed to
­accommodate special regional developments. Furthermore, they do not re-
quire such extensive universal negotiations and, as such, are often a more
straightforward and suitable legal reaction to existing needs. The regional
­focus is highly welcomed by the UN. 21 For refugee status determination
(RSD) and the procedural order in assessing such protection claims, it is, how-
ever, essential to establish a strict hierarchy among the existing legal bases.
The non-binding regional instruments, due to their voluntary nature, do not
challenge the primary role of the universal instrument or question procedural
­order in status determination. The binding OAU Convention and the national
laws implementing the Cartagena Declaration, with their extended refugee
definitions could, theoretically, endanger this primacy. However, the treaty
itself, as well as its travaux préparatoires, directly addresses the relationship
between the regional and the universal Refugee Convention, emphasising the
primacy of the latter and the complementary character of the former. The
OAU, in its preamble,

[r]ecogniz[es] that the United Nations Convention of 28 July 1951, as mod-

ified by the Protocol of 31 January 1967, constitutes the basic and universal
instrument relating to the status of refugees and reflects the deep concern of
States for refugees and their desire to establish common standards for their
treatment 22

and underlines:

that the efficiency of the measures recommended by the present Convention

to solve the problem of refugees in Africa necessitates close and continuous
collaboration between the Organization of African Unity and the Office of
the United Nations High Commissioner for Refugees.23

19 The Arab Convention, adopted in 1994 by the League of Arab States, has still not been ratified.
20 See more on the discussion in UNHCR: Sharpe, ‘The 1969 OAU Refugee Convention and the
Protection of People fleeing Armed Conflict and Other Situations of Violence in the Context of
Individual Refugee Status Determination’ (UN Doc. PPLA/2013/01, 2013).
21 UN Charter, Chapter VIII on Regional Arrangements.
22 1969 OAU Convention, Preamble, para. 9.
23 1969 OAU Convention, Preamble, para. 11.
 International refugee law 25
The OAU Council of Ministers emphasised, furthermore, their attempt to
adapt a regional specific instrument and not a universal replacement: “[T]he
African instrument should govern the specifically African aspects of the refugee
problem and it should therefore be the effective regional complement […]”24
Comparably, the Cartagena Declaration, in its preamble, 25 refers to the pro-
tection regime as established by the 1951 Convention and the 1967 Protocol,
as well as the outstanding role of the UNHCR as the Office responsible for
pursuing the protection of refugees in Latin America. The following conclu-
sions of the Colloquium in part III firstly acknowledge the status of the 1951
Convention and the Protocol by calling all remaining countries to facilitate the
application by adopting or revising their respective national laws and procedures
and to harmonise those laws and procedures with the principles and criteria of
the universal instrument.26 Furthermore, they call upon Latin American coun-
tries to ensure the ratification of the instrument and/or to withdraw existing
reservations so as not to limit its scope of application. Only then, following this
confirmation of the position of the 1951 Convention and the 1967 Protocol
and reflecting on the special characteristics of Latin American displacement, the
Declaration encourages the signatories to reflect upon a broader, extended ref-
ugee definition.27
From both texts, as well as their drafting contexts, one can determine that
the regional instruments were designed as complementary instruments to
­supplement, but not replace, the 1951 Convention. Their focus on persons
fleeing generalised violence is therefore no indication that the 1951 Conven-
tion itself was considered inapplicable in the context of violence or conflict
per se. Also, in this regard, the UNHCR’s guidance for status determination
holds that

The criteria for refugee status in the 1951 Convention need to be inter-
preted in such a manner that individuals or groups of persons who meet
these criteria are duly recognized and protected under that instrument.
Only when an asylum-seeker is found not to meet the refugee criteria in the
1951 Convention should broader international protection criteria as con-
tained in UNHCR’s mandate and regional instruments be examined.28

The effectiveness of the regional extended refugee instruments and the imple-
mentation of the obligations is subject to criticism, as is the actual scope of

24 ‘Resolution on the Adoption of a Draft Convention on the Status of Refugees in Africa, Addis
Ababa, 31 October - 4 November 1966’ (CM/Res.88 (IVV), 1966), at preamble.
25 See Part II, paragraphs (a)-(p).
26 See Part III of the Cartagena Declaration, paragraphs 1, 2, 3, 8, 17.
27 See Part III, Conclusion I, II, III.
28 United Nations High Commissioner for Refugees, ‘UNHCR Eligibility Guidelines for Assess-
ing the International Protection Needs of Asylum-seekers from Afghanistan’ (UN Doc. HCR/
EG/AFG/13/01, 2013), at 7.
26 International refugee law
protection attached to the status.29 Furthermore, displacement realities in Africa
and Asia are distinct from those in Europe creating different drafting histo-
ries for the respective Conventions. Nonetheless, their codification of extended
refugee definitions illustrates the legal differences with regard to the universal
instrument and offers an overview and inventory of the existing various legal
approaches to conflict-induced displacement.
The regional instruments and varying state practice of countries of origin,
transit and host countries constitute the broader framework of refugee protec-
tion. Meanwhile, the context of conflict adds additional layers of complexity and
uncertainty to the interpretation of the pertinent instruments. What they all
have in common, however, is that the UNHCR plays a prominent role in their
interpretation in particular and their application in general.

2.3 UNHCR – the mechanism of implementation and

its position on persons fleeing conflict
The UNHCR is the designated UN organ with responsibility for refugee
protection matters, both in terms of operations and legal oversight. Since its
­establishment, the Office has expanded both institutionally and in regards to
its protection mandate.30 This expansion is reflected in the Office’s position to-
wards persons fleeing conflict. When considering what influence the UNHCR
can exert over states and their interpretation of the refugee law instruments, one
firstly has to consider the legal basis for the UNHCR’s authority to act.
The Statute of the Office enshrines the mandate of UNHCR as well as some
of the obligations of states to cooperate. Additional obligations are contained
in the UN Charter, the 1951 Convention itself and the other regional refugee
instruments. In the following, firstly, the general mandate of the UNHCR, rele-
vant for conflict-induced displacement, is laid out, as this is the legal basis of the
Office’s engagement in interpretative processes. Secondly, to establish a basis for
the relationship between the UNHCR and states, the obligations to cooperate
with the Office are analysed, in order to evaluate the influence that the UNHCR

29Sharpe, Marina, ‘Engaging with Refugee Protection? The Organization of African Unity and A ­ frican
Union since 1963’ (UNHCR Research Paper No 226, 2011). Rankin, Micah B., ‘Extending the
Limits or Narrowing Down the Scope? Deconstructing the OAU Refugee Definition Thirty Years
on’, 21 South African Journal of Human Rights (2005) 406, at 430f. Edwin Odhiambo-Abuya, E.,
‘Past Reflections, Future Insights: African Asylum Law and Policy in Historical Perspective’, 19 In-
ternational Journal of Refugee Law (2007) 51. Davies, Sara E., ‘The Asian Rejection? International
Refugee Law in Asia’, 52 Australian Journal of Politics & History (2006) 562.
30 In the ECOSOC key document “A Study of Statelessness”, the main elements of the later drafted
1951 Convention, which were taken over by pre-war predecessors, were carved out, including
the assumption that the provision of status is not a standalone pillar of refugee protection: “The
conferment of a status is not sufficient in itself to regularize the standing of stateless persons and
bring them into the orbit of law; they must also be linked to an independent organ which would to
some extent make up for the absence of national protection […]”, (emphasis added by the author)
Chapter 2 (1), United Nations Economic and Social Council, ‘A Study of Statelessness’ (UN
Doc. E/1112, E/1112/Add.1, 1949), at 56.
 International refugee law 27
can exert over states, especially when interpreting the terms of the Convention.
This evaluation provides clarity on the legal nature of UNHCR’s output. Only
then, the evolution of the UNHCR’s position concerning persons fleeing con-
flict is brought into focus. While the Office has clearly included persons fleeing
conflict under its operational umbrella, its legal assessment concerning conflict-­
induced displacement has changed over time. The UNHCR has made substan-
tial revisions which are reflected in its different guidance documents, such as the
Handbook, Notes on International Protection and the Eligibility Guidelines.
The subsequent chapter, therefore, analyses the Office’s legal and policy develop-
ment concerning persons fleeing conflict under the 1951 Convention definition
of refugee. In these documents, the (changing) position of the Office towards
the application of the Convention for persons fleeing conflict is illustrated.

2.3.1 The nature of the UNHCR

The UNHCR is a subsidiary organ of the UN and was created to advance the
goals set forth in the UN Charter. The humanitarian and non-political Office31
has been established by a UN principal organ, the United Nations General As-
sembly (UNGA), in accordance with Articles 7 (2) and 22 of the UN Charter
and generally remains under its principal’s authority and control.32 Its powers
and authority in refugee protection derive from its own founding Statute, as
adopted by the UNGA, as well as responsibilities acquired later. Although a
subsidiary organ of the UN and despite the fact that the Secretary General re-
tains competencies such as to ensure proper administration,33 the UNHCR has
considerable independence, including through its almost independent budget,
which is mainly based on voluntary contributions, and its own working secretar-
iat. The authority to negotiate and conclude international treaties directly with
single or multiple states further illustrates its semi-autonomous character.34

31 Paragraph 2 of the UNHCR Statute.

32 UN Charter, Article 7 (1): “There are established as principal organs of the United Nations: a General
Assembly, a Security Council, an Economic and Social Council, a Trusteeship Council, an Interna-
tional Court of Justice and a Secretariat. (2) Such subsidiary organs as may be found necessary may be
established in accordance with the present Charter”, Article 22 “The General Assembly may ­establish
such subsidiary organs as it deems necessary for the performance of its functions.” United
­Nations Organisation, Official Records of the General Assembly, Ninth Session, Annexes, Agenda
Item 67 (1954), available online at http://unbisnet.un.org:8080/ipac20/ipac.jsp?go_sort_
limit.x=5&go_sort_limit.y=5&npp=50&ipp=20&spp=20&profile=bib&aspect=alpha&term=
​G eneral+Assembly.+Official+Records.+Annexes&index=YTIAUAL&uindex=&oper=&session​=
J4871B85T 9373.13 437& menu= sea rch& a spect=a lpha& npp = 50& ipp =20& spp =20&
profile =bib&ri=1​& source=%7E%21horizon&sort=3100053 (last visited 1 August 2018), at 13.
33 UNHCR Statute, para. 13, 15 (c), 17, 18, 21, 22.
34 Feller, Erika and Klug, Anja, ‘Refugees, United Nations High Commissioner for (UNHCR)’
(Max Planck Encyclopedia of Public International Law, 2013). In particular, as both the ­Statute,
in para. 8 (a), as well as the Convention in Article 31 (1), assign the Office a role in the further
evolvement of refugee law, see also Goodwin-Gill, Guy S., ‘Refugee Identity and Protection’s
Fading Prospects’, in F. Nicholson and P. M. Twomey (eds.), Refugee Rights and Realities:
­Evolving International Concepts and Regimes (Cambridge University Press, 1999), at 132.
28 International refugee law
2.3.2 UNHCR’s protection mandate
The UNGA, as a principal organ of the UN, delegates the task of refugee pro-
tection to the UNHCR, its subsidiary organ established solely for this purpose.
The Office’s mandate and the resulting field of cooperation contains two main
functions: to protect refugees and to promote sustainable solutions. Paragraph 1
of the UNHCR Statute enshrines these functions:

the United Nations High Commissioner for Refugees, acting under the
authority of the General Assembly, shall assume the function of providing
international protection, under the auspices of the United Nations, to refu-
gees who fall within the scope of the present Statute and of seeking perma-
nent solutions for the problem of refugees.35

The mandate and focus of the Office have grown and expanded since its
creation in the 1950s, adapting to the new challenges arising in refugee
protection, concerning persons in need and expanding geographically. Fur-
thermore, the protection mandate includes a variety of tasks. While the Of-
fice’s first focus was on the resettlement of the Second World War refugees,
the provision of material assistance in developing countries beyond Europe
shaped the end of the 1950s and early 1960s. The UNGA has repeatedly au-
thorised the UNHCR to establish various budgeting programmes, including
emergency funds, and to lend its good offices to address situations arising
in different countries, primarily following the decolonisation processes in
Africa. 36 Since then, the UNHCR has further expanded, addressing newly
erupting or stagnating wider displacement issues around the world, including
those in Europe since the 1990s and the conflict in the former Yugoslavia as
well as more recently. 37
The Office tackles its protection mandate in a twofold manner, consisting of its
operational functions and of doctrinal oversight over the pertinent legal frame-
work. The core protection function encompasses tasks ranging from “ensuring
the basic rights of refugees, and increasingly their physical safety and security”38
and “securing their admission, asylum, and respect for basic human rights […]”,39

35 1950 UNHCR Statute, para. 6 A (II).

36 Feller, Erika and Klug, Anja, supra note 34.
37 Ibid. See more also United Nations High Commissioner for Refugees, Partnership: An Opera-
tions Management Handbook for UNHCR’s Partners (2003), available online at http://spanish.­
careemergencytoolkit.org/Assets/Files/cae7a393-d68f-46c6-bc08-cad16ba8dc61.pdf (last ­visited
1 August 2018), at 5f.
38 United Nations General Assembly, ‘Note on International Protection’ (UN Doc. A/AC.96/930,
2000b), at para. 2. United Nations General Assembly, ‘Note on International Protection’ (UN
Doc. A/AC.96/830, 1994a), at para. 12.
39 United Nations General Assembly, supra note 38, at para. 9. United Nations General Assembly,
supra note 38, at para. 12.
 International refugee law 29
to finding and providing for durable solutions.40 Paragraph 8 of the UNHCR
Statute lays out a non-exhaustive list of protection tasks, which reflect the UN-
HCR’s primary responsibilities such as the promotion of refugee law treaties and
special agreements, supervision and assistance in developing national laws, ad-
vancing durable solutions and assisting in their implementation.41
In contrast to other international organisations, the UNHCR is authorised
to “promote the conclusion and ratification of international conventions for the
protection of refugees”, as listed firstly under paragraph 8 (a) of its Statute. As
such, it has an overall role in the development of international refugee law.42
The concrete design of this function is mirrored in the involvement of the Office
in the drafting and conclusion of regional refugee treaties, amendment proce-
dures, the interaction with courts and determining authorities, all of which are
discussed further below.
Key terminology, such as “supervising the application of the Convention” in
paragraph 8 (a), remains undetermined, which can lead to uncertainty around
the given tasks of the Office. On the other hand, the open and future-orientated
phrasing of Articles 8 and 9 are also the basis for any expanding role and activi-
ties taken on by the Office.43 In particular, the UNHCR Executive Committee
has prioritised and, according to protection needs, clarified tasks falling under

40 United Nations High Commissioner for Refugees, Framework for Durable Solutions for Refugees and
Persons of Concern (2003), available online at http://www.refworld.org/docid/4124b6a04.html
(last visited 1 August 2018). United Nations High Commissioner for Refugees, ‘Finding Dura-
ble Solutions’ (UNHCR GLOBAL APPEAL 2014–2015).
41 “8. The High Commissioner shall provide for the protection of refugees falling under the
competence of his Office by:
a Promoting the conclusion and ratification of international conventions for the protection of
refugees, supervising their application and proposing amendments thereto;
b Promoting through special agreements with governments the execution of any measures
­calculated to improve the situation of refugees and to reduce the number requiring protection;
c Assisting governmental and private efforts to promote voluntary repatriation or assimilation
within new national communities;
d Promoting the admission of refugees, not excluding those in the most destitute categories, to
the territories of States;
e Endeavouring to obtain permission for refugees to transfer their assets and especially those
necessary for their resettlement;
f Obtaining from governments information concerning the number and conditions of refugees
in their territories and the laws and regulations concerning them;
g Keeping in close touch with the governments and inter-governmental organizations concerned;
h Establishing contact in such manner as he may think best with private organizations dealing
with refugee questions;
i Facilitating the co-ordination of the efforts of private organizations concerned with the wel-
fare of refugees.” Paragraph 9 expands the list of tasks to include competences that are to be
determined in the future (...).
42 Feller, Erika and Klug, Anja, supra note 34. UNHCR: ExCom, Conclusion No. 51 (XXXIX)
Promotion and Dissemination of Refugee Law (1988) (last visited 1 August 2018). UNHCR:
ExCom, Conclusion No. 87 (L) - General (1999) (last visited 1 August 2018).
43 “[F]rom the beginning the practice of the UNHCR has been to ignore the obscurities of para. 8
and to rely instead on the broad phrasing of the paragraph and the general tenor of the Statute
30 International refugee law
the Office’s mandate.44 The UNGA has furthermore expanded the Office’s
mandate with subsequent resolutions. One might therefore argue that the open
phrasing of the Statute and its terms are also representative of the Office’s role,
being a tool of states on the one hand and an advocate for refugees and a surro-
gate for lacking state protection on the other. In regard to the legal and policy
focus this chapter pursues, the supervisory functions45 of the Office are of the
greatest relevance for the interpretation of refugee law matters. Its supervisory
role encompasses, most prominently, the interpretation of the 1951 Convention
as well as monitoring and intervening in refugee protection. These tasks may be
considered an interference with domestic legal and policy frameworks and are
thus highly politicised.

2.3.2.1 UNHCR, the states and refugee law

A first indication of the UNHCR’s influential position vis-à-vis states is found in
the relationship between the UNHCR, the 1951 Convention and the Conven-
tion’s state parties. In contrast to the auspices of the Office of the High Com-
missioner for Human Rights (OHCHR) which oversees the nine core human
rights conventions, the UNHCR was established prior to the 1951 Convention.
States became contracting parties to the Convention, consenting to work to-
gether with the already established refugee protection Office.46 To bind states
to cooperate with the UNHCR and ultimately follow its interpretation, it is
necessary to identify and assess the value of clear legally binding provisions that
entail a duty to cooperate.47

to support its contention that international protection should be interpreted broadly”, Holborn,
Louise W., Refugees, a Problem Of Our Time (Scarecrow Press, 1975), at 100.
44 Examples are, UNHCR: ExCom Standing Committee, Overview of Regional Developments
(October to December 1995) (1996), available online at http://www.unhcr.org/3ae68d2c0.pdf
(last visited 1 August 2018), at para. 2f. United Nations General Assembly, supra note 38, at
paras. 10–29. UNHCR: ExCom, Conclusion No. 29 (XXXIV) General (1983), available online
at http://www.refworld.org/pdfid/4b28bf1f2.pdf (last visited 1 August 2018), at paras. b and j.
UNHCR: ExCom, Conclusion No. 22 (XXXII) Protection of Asylum-Seekers in Situations of
Large- Scale Influx (1981), available online at http://www.refworld.org/pdfid/4b28bf1f2.pdf
(last visited 1 August 2018), at para. III.
45 See more on the supervisory function in subchapter 2.3.2.2.
46 For a detailed analysis, Kälin, Walter, ‘Supervising the 1951 Convention on the Status of Ref-
ugees: Article 35 and Beyond’ (UNHCR Background paper commissioned for the 2nd Expert
Roundtable in the context of the 50th anniversary of the 1951 Convention, 2001).
47 To exert its influence over the state parties, the UNHCR can fall back on state obligations
arising from different legal sources, including those arising from international treaties, or
bilateral agreements. In this regard, various agreements can be adopted including on transfer
arrangements. United Nations High Commissioner for Refugees, Guidance Note on Bilat-
eral and/or Multilateral Transfer Arrangements of Asylum-Seekers (2013), available online at
http://www.­refworld.org/pdfid/51af82794.pdf (last visited 1 August 2018). For examples
of repatriation, see among others the United Nations High Commissioner for Refugees,
Government of ­Pakistan & Government of Afghanistan, Tripartite Repatriation Agreement
between ­UNHCR and the Governments of Pakistan and Afghanistan (2003), available online
 International refugee law 31
2.3.2.1.1 The duty to cooperate by virtue of the UNHCR
Statute and the 1951 Convention

For the fulfilment of the functions of UNHCR, the Statute48 contains the
states’ primary obligation to cooperate with the Office. UNGA Resolution 428
(V) adopting the UNHCR Statute on 14 December 1950, a formal expression
of the UN member states’ opinion, reflects the general obligation of states “to
cooperate with the United Nations High Commissioner for Refugees in the
performance of its functions”.49 Apart from this broad and general terminology,
this duty is not elaborated further in the Statute.
More concrete, specific and binding state obligations to cooperate with UN-
HCR are enshrined in the pertinent and legally binding refugee treaties. The
obligations of interest for this book are, however, not those between states, but
those between states and the UNHCR, as these lay the foundations for the
Office’s influence in state implementation of the Convention. Of considerable
interest is the preamble of the 1951 Convention, paragraph 6,

the grant of asylum may place unduly heavy burden on certain countries,
and that a satisfactory solution of a problem of which the United Nations has
recognized the international scope and nature cannot therefore be achieved
without international cooperation,

which, in relation to the obligation to cooperate, states:

that the United Nation’s High Commissioner for Refugees is charged with
the task of supervising international conventions providing for the protec-
tion of refugees, and recognizing that the effective co-ordination of meas-
ures taken to deal with the problem will depend upon the co-operation of
States with the High Commissioner.

Article 35 (1) of the 1951 Convention and, respectively, Article II (1) of the
1967 Protocol then codify the single primary obligation towards the UNHCR,

at http://www.refworld.org/docid/55e6a5324.html (last visited 1 August 2018). Agree-

ments for resettlement operations, among others, the United Nations High Commissioner
for Refugees, Government of Romania & International Organization for Migration, Agree-
ment between the Government of Romania and the Office of the United Nations High Commis-
sioner for Refugees and the International Organization for Migration Regarding Temporary
Evacuation to Romania of Persons in Urgent Need of International Protection and their On-
ward Resettlement (2008), available online at http://www.refworld.org/docid/4a7c221c2.
html (last visited 1 August 2018).
48 A general obligation to cooperate with the UN arises from the UN Charter itself. Concerning
the obligation to cooperate and assist with specialised UN organs, see Karrenstein, Daniela,
Der Menschenrechtsrat der Vereinten Nationen (Mohr Siebeck, 2011), at 69ff. Article 56 lays
down this duty, Grahl-Madsen, Atle, Commentary of the Refugee Convention 1951 (Articles 2–11,
13–37) (1997), available online at http://www.refworld.org/docid/4785ee9d2.html (last visited
1 August 2018), at 252.
49 United Nations General Assembly, ‘Resolution 428 (V)’ (UN Doc. A/RES/428 (V), 1950).
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