TEMPORARY PROTECTION, DEROGATION AND THE 1951 REFUGEE CONVENTION

Temporary protection is generally associated with protection of limited duration and standards of treatment lower than those envisaged in the 1951 Convention relating to the Status of Refugees ('1951 Refugee Convention' or 'Convention'). In some mass influx situations, Convention rights have been suspended pending the resolution of the cause of such movement. The United Nations High Commissioner for Refugees has both acknowledged and called for temporary protection in such situations, including in respect of states parties to the 1951 Refugee Convention and thus for persons who would customarily benefit from Convention protection. The Executive Committee of the High Commissioner's Programme recommends it as the minimum protection every asylum seeker should receive. A longstanding question provoked by the granting of temporary protection instead of Convention rights in such situations, which this article seeks to answer, is whether states parties to the 1951 Refugee Convention can justify - as a matter of law rather than pragmatism - suspending Convention rights to asylum seekers and/or refugees in mass influxes? In answering this question, this article examines in particular the technique of derogation. Even though the 1951 Refugee Convention does not include a general derogation clause equivalent to those in international human rights treaties, it is argued that two provisions of the Convention - arts 8 and 9 - nonetheless provide for derogation. In the alternative, it is posited that via subsequent agreement of states parties, implied derogation allowing for temporary protection in mass influx situations is now an accepted feature of the Convention regime. Even in recognising the legal power to derogate from Convention rights in mass influx situations, this article sets out the limits on derogation under international law and argues that these limits equally apply to derogation under the 1951 Refugee Convention.