Protecting Recognized Geneva Convention Refugees outside their States of Asylum

This article highlights the particular predicament of persons recognized as refugees according to the Convention Relating to the Status of Refugees (CSR1951 refugees) when they travel outside their state of asylum. Their status entails ipso facto that, if they are ill-treated by a third state, they cannot turn to representatives of their state of nationality and request its protection abroad. It is submitted that a state of asylum should be entitled and expected to extend the scope of protection that it offers CSR1951 refugees residing in its territory, and to provide them with diplomatic protection and consular assistance when they travel abroad as if they were its nationals. The argument proceeds in four steps: First, the advent of human rights treaties has not rendered obsolete the protection of nationals abroad, nor has the practice fallen into disuse. On the contrary, protection abroad retains its pedigree and significance, as is illustrated by the recently adopted International Law Commission's Draft Articles on Diplomatic Protection and by provision of consular assistance. Secondly, while states previously enjoyed unfettered discretion concerning whether and when to protect their nationals abroad, recent developments in domestic jurisdictions, as well as recent developments in European Union (EU) treaties, point to the potential emergence of a qualified duty to exercise state protection or to be willing to provide justifications for its refusal. These developments call special attention to the vulnerability of CSR1951 refugees: the professed aim of the EU treaty regime is that EU citizens should enjoy effective protection wherever they travel; by contrast, CSR1951 refugees are in need of protection whenever they travel. Thirdly, according to CSR1951, states of asylum are required to issue Convention Travel Documents (CTDs) to recognized refugees lawfully staying in their territory. While CTDs do not in and of themselves authorize states of asylum to provide protection abroad to their CSR1951 refugees, they reflect partial recognition of the instrumental role of these states in facilitating safe refugee travel. Fourthly, while the 'nationality of claims' requirement remains pivotal to the institution of diplomatic protection, and efforts to effectuate its general relaxation have thus far failed, the International Law Commission (ILC) has 'carved out' an exception authorizing states of asylum to provide protection abroad to their recognized refugees. The ILC's protection-enhancing agenda, reflecting progressive development of the law, is laudable, even though it has opted for a rather cautious approach.