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date: 16 July 2018

Protection Gaps

Abstract and Keywords

This chapter examines a number of critical gaps or shortcomings in the existing international refugee protection regime and offers a series of suggestions on how to address these protection gaps. It argues that international protection of refugees and other victims of forced displacement must have a solid legal and institutional foundation, as well as the genuine commitment of states to implement international and regional legal instruments for the protection of refugees, both individually and through international cooperation. It also looks at the role of the Office of the United Nations High Commissioner for Refugees (UNHCR) as the world’s primary global refugee institution.

Keywords: protection, refugees, legal instruments, international cooperation, United Nations High Commissioner for Refugees, protection gaps, displacement


For it to be effective, the international protection of refugees and other forcibly displaced people requires a solid legal and institutional underpinning, which is reflected primarily in international and regional legal instruments for the protection of refugees, notably the 1951 Convention and 1967 Protocol relating to the Status of Refugees. Effective protection also greatly depends on the genuine commitment of states to implement these instruments, both individually and through international cooperation. At the institutional level, the United Nations High Commissioner for Refugees (UNHCR) was established as the main global refugee institution in the wake of the Second World War. Given the particular character of refugees as people who lack the protection of their own countries, UNHCR was created as the legal entity able to intercede on their behalf, as best illustrated by its supervisory responsibilities in respect of international refugee and statelessness instruments. The effective exercise of UNHCR’s mandate both presupposes and is underpinned by the commitment from states to cooperate with it. From the outset, one of the main challenges has been addressing gaps in protection both as regards the legal regime and how it operates in practice.

Protection Gaps and Responses

Against this background, ‘protection gaps’ is a term that has generally been used to describe inadequacies in the protection afforded to refugees and other forcibly displaced persons1 where existing provisions of international law, notably international refugee law, are either not applicable, non-existent, or inadequate in scope, or are not interpreted and/or applied in an appropriate manner. In 1994, UNHCR observed that ‘[s]ignificant numbers of people who are in need of international protection are outside the effective (p. 279) scope of the principal international instruments for the protection of refugees.’2 Almost 20 years later, and 60 years after the 1951 Convention was adopted, there are still critical gaps in the ‘effective scope’ of the international refugee protection regime. The following analysis groups these into three areas: application gaps, implementation gaps and normative gaps, and includes examples of steps taken by the international community to fill them.

Application Gaps

As noted in UNHCR’s 2012 State of the World’s Refugees, ‘[t]he refugee protection system is weakened by its less than universal application.’3 The most significant application gap early on in refugee law concerned the geographic and temporal limitations contained in the refugee definition of the 1951 Convention. This was filled with the adoption of the 1967 Protocol which removed both limitations. The most apparent gap today lies in the non-applicability of international refugee instruments where a country has either not acceded to them, or maintains reservations to its provisions. One hundred and forty-eight states are currently party to the 1951 Convention and/or its 1967 Protocol. There is significant regional variation in their applicability, with the majority of non-states parties situated in the developing world. Yet this is not necessarily mirrored in the actual provision of protection: in 2011, more than 40 per cent of refugees under UNHCR’s mandate were hosted by states that had not acceded to either instrument, notably in Asia and the Middle East.4

For decades, UNHCR has periodically encouraged countries to accede to the international and regional refugee instruments and to remove reservations. States have made similar appeals through the United Nations General Assembly,5 UNHCR’s Executive Committee,6 and in the outcome documents of ministerial-level events organized by UNHCR.7 Over time, the number of states parties has steadily increased. International and regional human rights law,8 regional refugee law instruments,9 and the recognition of the principle of non-refoulement as a norm of customary international law by the international community at large have, to some extent at least, helped fill gaps linked to the non-applicability of the international refugee instruments. However, accession to the international refugee instruments or withdrawal of reservations would ensure that these gaps are filled in a comprehensive and predictable manner.

Implementation Gaps

In 1989, UNHCR’s Executive Committee adopted a Conclusion specifically on implementation of the 1951 Convention and its 1967 Protocol, which underlined ‘again’ the need for full and effective implementation and called on states to take ‘a positive and (p. 280) humanitarian approach’ in a manner fully compatible with their object and purposes.10 Yet in 2014, significant discrepancies remain in the ways in which states interpret and implement their obligations under the 1951 Convention and 1967 Protocol, both in terms of determining who comes within their scope and the rights and entitlements of recognized refugees. Serious differences can lead to lower standards of protection for fewer people, which can in turn affect asylum flows and cause secondary movements of refugees.

Consistent with the Vienna Convention on the Law of Treaties, the 1951 Convention needs to be interpreted in good faith in accordance with the ordinary meaning of its terms in their context and in light of its object and purpose.11 The Preamble to the 1951 Convention makes clear its purpose—to ensure that refugees enjoy the widest possible exercise of their fundamental rights and freedoms without discrimination. As is the case with international human rights treaties, the 1951 Convention is a living instrument which ‘must be interpreted in light of present-day conditions’.12 The UK House of Lords, for example, has explained that ‘while its meaning does not change over time its application will,’13 noting that ‘[i]t is clear that the signatory states intended that the Convention should afford continuing protection for refugees in the changing circumstances of the present and future world.’14 The Supreme Court of Canada has similarly recognized that ‘[i]nternational conventions must be interpreted in the light of current conditions.’15 In construing the term ‘particular social group’, an Australian High Court judge explained that ‘[i]t would be an error to construe the [refugee] definition so as to ignore the changing circumstances of the world in which the Convention now operates.’16 A recent New Zealand case also emphasized that the 1951 Convention ‘should not be applied in an improperly or overly restrictive manner’, noting that it should be given ‘a purposive and dynamic interpretation’.17

Indeed, over the past 60 years, the 1951 Convention and its 1967 Protocol have afforded refugee protection to people fleeing a wide range of risks and threats in their countries of origin. Examples include draft evaders and deserters, persons who fear persecution by non-state actors,18 women as members of a particular social group, persons who fear persecution on the grounds of sexual orientation or gender identity,19 victims of trafficking, and victims of organized gangs. Yet a number of decision makers continue to exploit the ambiguities in the Convention definition, meticulously dissecting its terms and interpreting them narrowly so as to minimize the scope of their protection obligations. Some states, for example, do not accept obligations on grounds not explicitly listed in Article 1A(2) of the Convention, such as gender. A recent study on the ‘particular social group’ ground concludes that analysis ‘has largely become more stringent and presents a greater hurdle for applicants wishing to rely on [this] ground alone’.20 Another example of divergent and at times restrictive interpretations relates to refugees fleeing armed conflict and the indiscriminate effects of generalized violence. Approaches vary markedly between states that have accepted a wider refugee definition in regional instruments, states parties to the 1951 Convention that interpret its definition broadly to encompass some in this group, states that offer complementary/subsidiary forms of protection to persons fleeing generalized violence, and states that deny any entitlement to international protection to such persons.

(p. 281) Discordant views on different elements of the refugee definition give rise to varying rates of refugee recognition among states, with asylum seekers subjecting their futures to what has been described as an ‘asylum lottery’.21 In relation to Afghan asylum seekers, for example, refugee recognition rates in 2011 among eight European countries ranged from 3 per cent in the Netherlands to 33 per cent in Austria. When other forms of protection such as complementary protection, subsidiary protection, and humanitarian status are included in this equation, the gap is even more drastic, ranging from 11 per cent in Greece to 73 per cent in Sweden.22 This is despite the ongoing development of a Common European Asylum System, which was set in place to ensure that any person seeking protection in Europe would be treated in the same way irrespective of where they apply. Despite some positive progress towards this goal, a 2010 evaluation of the implementation of the European Qualification Directive found that ‘the objective of creating a level playing field with respect to the qualification and status of beneficiaries of international protection and to the content of the protection granted has not been fully achieved during the first phase of harmonization.’23

UNHCR strives, pursuant to its supervisory responsibility, to fill implementation gaps relating inter alia to interpretation and implementation of the refugee definition. This supervisory responsibility is laid down explicitly in paragraph 8(a) of the UNHCR Statute and is mirrored in Articles 35 and 36 of the 1951 Convention and Article II of the 1967 Protocol. UNHCR is therefore competent qua its Statute and international treaty law to supervise all conventions relevant to refugee protection. Moreover, most regional refugee instruments also explicitly establish a link to UNHCR’s supervisory function as regards the application of their provisions.24 In essence, states parties to regional and international refugee instruments undertake to cooperate with UNHCR in the exercise of its functions, and in particular to facilitate its duty of supervising these instruments. In some country operations UNHCR has been directly involved in national status determination procedures and national decision making: at present, UNHCR itself conducts more than 1 in 11 of the world’s individual refugee status determinations. UNHCR has also worked closely with the judiciary by providing amicus curiae briefs on leading cases, and has set out the Office’s legal and protection position through the issuance of Guidelines on International Protection on various aspects of Article 1A(2), or Eligibility Guidelines in respect of particular country situations. In addition, soft law conclusions adopted by UNHCR’s Executive Committee serve an important role in providing clarity and building consensus on key aspects of the 1951 Convention, including its definition.

In relation to the implementation of states’ obligations towards recognized 1951 Convention refugees, the gaps are manifold, and the quality of protection offered in different parts of the world varies considerably. A number of states parties to the 1951 Convention have not fully incorporated their obligations into domestic law or, where they have, do not always comply with them. A particular gap has arisen in situations where asylum seekers and refugees are deterred from reaching a territory, including when travelling by sea. Measures to deter or prevent the arrival of asylum seekers include tightened entry controls, border closures, restrictive visa requirements, offshore border controls, interception at sea, mandatory detention on immigration grounds with (p. 282) few protection safeguards, and even in some instances push-backs and refoulement. Where asylum seekers are able to access the territories of states, they often lack meaningful access to asylum systems due to practical issues such as cost, language barriers, or huge case backlogs, or where decision makers are not sufficiently sensitive to the situation they have fled and/or their particular needs.

Many refugees are unable to enjoy basic rights to documentation, education, and protection against sexual and gender-based violence, particularly in urban settings. There is also often a gap in meeting fundamental needs in areas such as nutrition, access to clean water, and primary healthcare. In addition, the particular protection needs of women, children, older persons, LGBTI individuals, and persons with disabilities are not always adequately responded to. These issues can be linked to the legal framework in place in a given state, which may perpetuate or fail to address certain types of discrimination, to a lack of resources or capacity, and/or to political unwillingness to provide protection and assistance to certain groups. In response, UNHCR and other humanitarian actors often step in operationally, even de facto replacing state structures, both in convention and non-convention states. Activities range from setting up camps, to providing assistance and protection interventions in urban areas, to working on solutions. UNHCR’s supervisory role in relation to states’ compliance with their international obligations towards refugees and asylum seekers (as well as stateless persons) is an integral part of its core mandate and directly linked to ensuring a principled application of the international protection regime. A direct emanation of this responsibility is, inter alia, that UNHCR has prompt and unhindered access to asylum seekers and refugees, wherever they are,25 and is allowed to supervise their well-being.26

Normative Gaps

The extent to which the existing international refugee law framework is capable of responding to the needs of persons forcibly displaced outside a more classic refugee context, is the subject of ongoing debate. As early as 1996, UNHCR’s Executive Committee observed that ‘the underlying causes of large-scale involuntary population displacements are complex and interrelated and encompass gross violations of human rights, including in armed conflict, poverty and economic disruption, political conflicts, ethnic and inter-communal tensions and environmental degradation, and that there is a need for the international community to address these causes in a concerted and holistic manner.’27 Forced displacement today is being further impacted by the global economic crisis, the effects of climate change, and large-scale complex emergencies and natural disasters. An increasing number of people are forced to move—more frequently within, but also across, state borders—for a complex mix of reasons. Among them will often be economic migrants in search of a better life, but also persons for whom leaving their country was not a choice, but a necessity. Often, they also travel alongside refugees.

(p. 283) Where persecution is one reason for their displacement, irrespective of others, such persons are entitled to protection under the 1951 Convention. There may also be circumstances in which some persons displaced in the context of climate change, natural disaster, severe deprivation or a combination of these—in the absence of more ‘traditional’ forms of persecution—may fall within the scope of the 1951 Convention.28 However, it is well known that even the most flexible and principled application of the Convention will exclude some forcibly displaced persons who may have a legitimate need for protection. The main obstacle to obtaining 1951 Convention protection is the requirement that a claim be linked to one of five grounds, which more often than not precludes its application to claims based on generalized, indiscriminate suffering, or threats that are not human made.

Normative gaps may also emerge in the case of persons whose need for protection arises when they are already outside their country of origin. Stranded migrants, for example, can be vulnerable to abuse, exploitation, and human rights violations/deprivations during their journey and following arrival.29 They are often left in a situation of ‘legal limbo’ and have been described as ‘fall[ing] into a protection and human rights gap’.30 The plight of displaced migrant workers has also come into the spotlight following the displacement of hundreds of thousands from Libya to Egypt and Tunisia in 2011. They, too, fall into a ‘legal grey zone’.31

Various initiatives at the national, regional, and international levels have served to fill a number of normative gaps. In the context of environmental or natural disaster, for example, some national legislation provides for the grant of temporary protected status,32 stays of removal,33 subsidiary protection,34 temporary protection,35 special temporary residence status,36 or residence permits.37 At the regional level, some normative gaps—notably for persons fleeing situations of generalized violence—were filled through the adoption of region-specific instruments, such as the 1969 OAU Refugee Convention in Africa and the 1984 Cartagena Declaration in Latin America. As mentioned, over the last ten years the European Union has also codified a legal framework covering asylum, reception conditions, asylum procedures, and temporary protection applicable to the member states. Existing protections against refoulement in regional and international human rights law instruments can protect some persons against return, but do not provide for a right of stay or a legal status, even if only on a temporary basis. Further, the scope of non-refoulement in such circumstances is not clearly defined. Specifically in relation to climate change, states have reached agreements38 and made pledges39 to inter alia improve understanding with regard to climate change and displacement, enhance coordination and cooperation, identify best practices, and work towards a more coherent and consistent approach on how best to assist and protect affected people.

There are also substantive gaps in the 1951 Convention that go beyond its refugee definition. Critically, the Convention is not explicit on admission to territory or access to asylum procedures. In fact, asylum seekers are not explicitly covered by the 1951 Convention, even though some of its most fundamental protections equally apply to them. Further, the 1951 Convention does not include a framework for addressing some of the key protection challenges that have confronted the international community for (p. 284) decades, such as protracted situations, large-scale influxes, maritime protection, or secondary movements of refugees. While the Convention is predicated on international solidarity, there are no agreed parameters for predictable burden and responsibility sharing. This is compounded by the fact that the majority of refugees are situated in countries without the resources to adequately meet their needs. The Convention also does not provide standards for the timely realization of durable solutions. Besides the OAU Convention, there is currently no hard law on voluntary repatriation, local integration, or resettlement.

Such normative gaps have often been addressed in Executive Committee Conclusions40 and General Assembly resolutions,41 and also through the adoption of signed documents of a contractual nature or non-signed documents of a declaratory nature. Agreements that are not legally binding per se may still reflect important political commitments of states to act in a predictable manner. Traditionally, special agreements have been used in the context of promoting voluntary repatriation42 and agreeing on the implementation of its operational modalities. Arrangements have, however, gone beyond this aspect. By way of examples, the final document of the Comprehensive Plan of Action for Indo-Chinese Refugees was agreed upon at an international conference in 1989. While the agreed plan did not contain normative or interpretative guidelines, it established roles and responsibilities on how to address a particular refugee situation. Another example is the CIREFCA process. A 1989 conference agreed on measures to resolve the mass displacements caused by the long-running conflicts in Central America. Following the outbreak of the crisis in the former Yugoslavia, UNHCR convened an international conference in 1992 and presented a comprehensive plan of action that was endorsed by the international community. The document was a policy framework dealing with elements, such as temporary protection and solutions, and proved instrumental in steering the humanitarian response for years. Similarly, a CIS Conference, held in Geneva in May 1996, adopted a Programme of Action covering a broad range of migration and displacement issues resulting from the demise of the Soviet Union.43

UNHCR has undertaken a number of high-level initiatives over the years to analyse gaps—application, implementation, and normative—and explore ways to respond. A particularly important process was the Global Consultations on International Protection in 2001–2, which focused on the tools available to the international community and those in need of development, and resulted in the adoption of an Agenda for Protection.44 In the wake of the Global Consultations, UNHCR launched the Convention Plus initiative in 2003 to promote the development of multilateral agreements to complement the 1951 Convention, which led to the adoption of a Multilateral Framework of Understandings on Resettlement in 2004. Since 2007, the High Commissioner’s annual Dialogues on Protection Challenges have provided a forum to discuss both normative and operational gaps, leading mostly to action plans at various levels. In 2011, UNHCR organized a series of expert events45 in the context of the 60th anniversary of the 1951 Convention, culminating in a Ministerial Meeting at which states made a number of concrete pledges to fill protection gaps.46

(p. 285) Way Forward

The 1951 Convention and 1967 Protocol remain the foundation of the international refugee protection regime, as reaffirmed by states on both the 50th and 60th anniversaries of the Convention.47 However, while these instruments remain an essential governance framework, they do not alone suffice. This, too, has long been recognized. Twenty years ago, UNHCR acknowledged in relation to normative gaps that ‘the present system of ad hoc international responses and domestic national arrangements to protect persons in need, but outside any existing international regime, needs to be strengthened.’48 In 2001, states similarly recognized that the international refugee protection regime should be developed further, as appropriate, and in this connection called on UNHCR to explore areas that would benefit from further standard setting, such as Executive Committee Conclusions or other instruments to be identified at a later stage.49 In 2011, states again acknowledged the need to deepen their understanding of ‘evolving patterns of displacement’ and agree upon ways to respond to the challenges they present.50

Considerable work has been done in recent years to identify the most pertinent normative and implementation gaps in the international refugee protection regime. The international community now needs to build strong consensus around these gaps, and make a concerted effort to fill them. The identification of good practices at national and regional levels has proven useful, and should continue to inform the way forward. There is also a need to clarify the role of UNHCR and other actors in addressing forms of cross-border displacement that fall outside the scope of the existing international refugee protection framework. Numerous recommendations have been made to address protection gaps, such as the development of a global guiding framework on normative gaps, guiding principles on displacement in the context of natural disasters, a tool to introduce greater predictability and foreseeability to burden and responsibility sharing, temporary or interim protection arrangements, or the strengthening of human rights protection in the context of non-refoulement and other refugee rights.

Ultimately, the feasibility of suggestions to fill protection gaps will depend on the commitment of states. However, it is clear that the effectiveness of measures to address protection gaps would be limited if conceived in only abstract, conceptual, and theoretical terms. If such measures are not tied to specific, concrete problems or situations, which elicit a measure of political interest and a willingness to cooperate, their feasibility would be doubtful. It is likely that states would be reluctant to commit themselves to models or mechanisms in the abstract. If at all, these would then remain vague, and thus add little as a tool or to increase predictability of responses.


Chairperson’s Summary (2011) The Nansen Conference on Climate Change and Displacement in the 21st Century. Oslo, 6–7 June.Find this resource:

Dowd, R. (2008) ‘Trapped in Transit: The Plight and Human Rights of Stranded Migrants’. UNHCR New Issues in Refugee Research. Research paper No. 156, June.Find this resource:

European Commission (2010) Report from the Commission to the European Parliament and the Council on the Application of Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection.

(p. 289) European Council on Refugees and Exile (2008) The Impact of the EU Qualification Directive on International Protection.

Foster, M. (2007) International Refugee Law and Socio-Economic Right. Cambridge: Cambridge University Press.Find this resource:

Foster, M. (2012) The ‘Ground with the Least Clarity’: A Comparative Study of Jurisprudential Developments Relating to ‘Membership of a Particular Social Group. Geneva: UNHCR Legal and Protection Policy Research Series.Find this resource:

Global Migration Group (2010) ‘Building Partnerships for Identifying, Protecting, Assisting and Resolving the Situation of Stranded and Vulnerable Migrants’. Practitioners Symposium, Geneva, 27–8 May 2010.Find this resource:

Türk, V. (2002) ‘Non-State Agents of Persecution’. Pp. 95–109 in V. Chetail and V. Gowlland-Debbas (eds.), Switzerland and the International Protection of Refugees. The Hague: Kluwer Law International.Find this resource:

UNFCC (2010) ‘Report of the Ad Hoc Working Group on Long-term Cooperative Action under the Convention’. Cancun Climate Change Conference. Cancún, Mexico, December 2009.Find this resource:

UNHCR (1992a) Persons covered by the OAU Convention Governing the Specific Aspects of Refugee Problems in Africa and by the Cartagena Declaration on Refugees (Submitted by the African Group and the Latin American Group), EC/1992/SCP/CRP.6, 6 April.

UNHCR (1992b) Protection of Persons of Concern to UNHCR who Fall Outside the 1951 Convention: A Discussion Note. EC/1992/SCP/CRP.5, 2 April.

UNHCR (1994) Note on International Protection, A/AC.96/830, Executive Committee of the High Commissioner’s Programme, 45th Session, 7 September.Find this resource:

UNHCR (2002) Declaration of States Parties to the 1951 Convention and or its 1967 Protocol Relating to the Status of Refugees, HCR/MMSP/2001/09, 16 January, Geneva.Find this resource:

UNHCR (2007) Asylum in the European Union: A Study of the Implementation of the EC Qualification Directive.Find this resource:

UNHCR (2009) Forced Displacement in the Context of Climate Change: Challenges for States under International Law, Submission to the 6th Session of the Ad Hoc Working Group on Long-Term Cooperative Action under the Convention, Cancun Climate Change Conference, Cancún, Mexico, 20 May.Find this resource:

UNHCR (2010) High Commissioner’s Closing Remarks, Dialogue on Protection Challenges: Protection Gaps and Responses. Geneva: Palais des Nations, 9 December.Find this resource:

UNHCR (2011) Ministerial Communiqué, HCR/MINCOMMS/2011/6, 8 December, Geneva.Find this resource:

UNHCR (2012a) Pledges 2011: Ministerial Intergovernmental Event on Refugees and Stateless Persons. Geneva.Find this resource:

UNHCR (2012b) The State of the World’s Refugees: In Search of Solidarity. Geneva.Find this resource:

UNHCR (2012c) Pledges 2012: Ministerial Intergovernmental Event on Refugees and Stateless Persons. Geneva.Find this resource:

United Nations (2012) General Assembly Resolution 66/133: Office of the United Nations High Commissioner for Refugees, 19 March.Find this resource:


(1) . Whilst protection gaps do exist in relation to internally displaced persons and stateless people, this chapter focuses on cross-border displacement.

(2) . UNHCR (1994: para. 68).

(3) . UNHCR (2012b: 9).

(4) . UNHCR (2012b: 9).

(5) . See, for example, General Assembly Resolution 66/133, 19 March 2012.

(6) . See, for example, UNHCR Executive Committee General Conclusion on International Protection No. 108/2008. In 1986, the Executive Committee adopted Conclusion No. 42 (XXXVI) specifically on accession.

(7) . Ministerial Communiqué, 8 December 2011, HCR/MINCOMMS/2011/6; Declaration of States Parties, 16 January 2002, HCR/MMSP/2001/09.

(8) . See, for example, Article 22 of the 1989 UN Convention on the Rights of the Child. See also the 1969 American Convention on Human Rights ‘Pact of San José, Costa Rica’, 1144 UNTS 123, Article 22(8). Explicit or implicit protections against refoulement are included in a number of human rights instruments, including the 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the 1966 International Covenant on Civil and Political Rights, and the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms.

(9) . See, for example, the OAU Convention Governing Specific Aspects of Refugee Problems in Africa, 1969, 1001 UNTS 45 and the Cartagena Declaration on Refugees, 22 November 1984, Annual Report of the Inter-American Commission on Human Rights, OAS Doc. OEA/Ser.L/V/II.66/doc.10.

(10) . See UNHCR Executive Committee, Conclusion No. 57 (XL) on Implementation of the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, 1989.

(11) . Article 31(1).

(12) . Hirsi Jamaa and Others v Italy, Application no. 27765/09, Council of Europe: European Court of Human Rights, 23 February 2012, para. 175. See also Tyrer v United Kingdom (1979–80) 2 EHRR 1, para. 31.

(13) . Sepet (FC) and Another (FC) (Appellants) v Secretary of State for the Home Department (Respondent) [2003] UKHL 15.

(14) . R v Secretary of State for the Home Department, Ex p Adan [2001] 2 AC 477, 500, per Laws LJ. [NB: This is a classic error of citation. The quotation in the text is rightly attributed to Lord Justice Laws (Laws LJ). Laws LJ is not now and was not then a member of the House of Lords; he is a judge in the Court of Appeal. The error arises from the fact that the judgment of the Court of Appeal in the cited case is reproduced in [2001] 2 AC 477 at 481–504; the judgment of the House of Lords itself begins at 507].

(15) . Suresh v Canada (Minister of Citizenship and Immigration) [2002] 1 SCR 3 (Canada), para. 87.

(16) . A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225, para. 227.

(17) . AC (Syria), [2011] NZIPT 800035, New Zealand: Immigration and Protection Tribunal, 27 May 2011, para. 62. See also Refugee Appeal No 74665 [2005] NZAR 60; [2005] INLR 68 at [56] (RSAA) per Haines QC.

(19) . UNHCR, ‘The Protection of Lesbian, Gay, Bisexual, Transgender and Intersex Asylum-Seekers and Refugees: Discussion Paper prepared for a UNHCR Roundtable on Asylum-Seekers and Refugees Seeking Protection on Account of Their Sexual Orientation and Gender Identity’, Geneva, Switzerland, 22 September 2010.

(21) . See the website of the European Council on Refugees and Exiles <>.

(22) . UNHCR, Global Trends 2011, 18 June 2012.

(23) . European Commission, Report from the Commission to the European Parliament and the Council on the Application of Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection, 16 June 2010.

(24) . See, for instance, Article VIII of the OAU Convention (n. 9). A reflection of UNHCR’s supervisory responsibility can also be found in recommendation (e) of the 1984 Cartagena Declaration and the Preamble to the 1957 Agreement Relating to Refugee Seamen. Furthermore, European Union law also demonstrates the commitment of its member states to cooperate with UNHCR in the implementation of the international refugee instruments, which extends to UNHCR’s supervisory role. For example, Article 78(1) of the Treaty on the Functionings of the European Union stipulates that a common policy on asylum, subsidiary protection, and temporary protection must be in accordance with the 1951 Convention. Further, Declaration 17 to the Final Act of the 1997 Treaty of Amsterdam, which foresees consultations with UNHCR in the area of harmonization of refugee law and policies, can be seen as a concrete implementation by European Union member states of their responsibility to cooperate with UNHCR. UNHCR is also specifically mentioned in the EU Qualification Directive and the EU Procedures Directive.

(25) . See also UNHCR Executive Committee Conclusions No. 22(III), 33(h), 72(b), 73(b)(iii), 77(q), 79(p).

(26) . See UNHCR Executive Committee Conclusions No. 22(III), 48(4)(d).

(27) . UNHCR Executive Committee Conclusion No. 80 (XLVII) 1996, ‘Comprehensive and Regional Approaches within a Protection Framework’, Preamble. See also UNHCR, Note on International Protection, 9 September 1991, A/AC.96/777, para. 5, which observes that ‘population movements are compelled by persecution, other forms of human rights violation and conflict, but are also caused by natural or ecological disaster, extreme poverty, or by a mix of these reasons’.

(28) . In relation to climate change, see, for example, UNHCR 2009: 9–10. In relation to economic deprivation, see the UNHCR Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, as reissued in 2011(<>), para. 63, and Foster 2007: 13.

(29) . See Dowd 2008.

(30) . Global Migration Group, ‘Building Partnerships for Identifying, protecting, Assisting and Resolving the Situation of Stranded and Vulnerable Migrants’, Background Paper, Session 2, Parallel Working Group B, Practitioners Symposium, Geneva, 27–8 May 2010.

(31) . K. Koser, ‘Migration, Displacement and the Arab Spring: Lessons to Learn’, Brookings, 22 March 2012.

(32) . Immigration and Nationality Act, United States of America (last amended March 2010), s. 244(b)(1)(B)(i).

(33) . Immigration and Refugee Protection Regulations (SOR/2002-227), Canada (last amended 10 April 2012), s. 230(1)(b).

(34) . Aliens Act, 2005, Chapter 5, Section 1(2).

(35) . Act No. 221/2003 Coll. on Temporary Protection of Aliens of 26 June 2003, Czech Republic, Articles 2 and 3.

(36) . Decree 616/2010—Regulation of Migration Law No. 25.871 and amendments, Argentina, 6 May 2010, Title II, Chapter I, Article 24(3)(h).

(37) . Aliens Act 301/2004, Finland, s. 88a (323/2009), para. (1).

(38) . Nansen Conference on Climate Change and Displacement in the 21st Century, Oslo, 6–7 June 2011, Nansen Principles, Principle IX; Outcome of the Ad-Hoc Working Group on Long-Term Cooperative Action under the Convention, Cancún, December 2009.

(39) . See the pledge made by Norway and Switzerland, and joined by Germany and Mexico. UNHCR, ‘Pledges 2011: Ministerial Intergovernmental Event on Refugees and Stateless Persons’, Geneva, May 2012.

(40) . A recent example is UNHCR Executive Committee Conclusion on Protracted Refugee Situations, No. 109 (LXI), 2009.

(41) . See, for example, UN General Assembly, Declaration on Territorial Asylum, 14 December 1967, A/RES/2312(XXII).

(42) . A quick review of UNHCR’s organizational practice reveals that there have been some 24 special agreements dealing with voluntary repatriation.

(43) . ‘Regional Conference to Address the Problems of Refugees, Displaced Persons, Other Forms of Involuntary Displacement and Returnees in the Countries of the Commonwealth of Independent States and Relevant Neighbouring States’, 11 June 1996, CISCONF/1996/5.

(44) . UNHCR, ‘Agenda for Protection’ (3rd edn.), October 2003.

(45) . Documentation from a series of expert events in 2011, on topics such as climate change and displacement and international cooperation, is available at <>.

(47) . See n. 7.

(48) . UNHCR, ‘Protection of persons of concern to UNHCR who fall outside the 1951 Convention: a discussion note,’ EC/1992/SCP/CRP.5, 2 April 1992.

(49) . Declaration of States Parties (n. 7).

(50) . Ministerial Communiqué (n. 7).