TY - JOUR
AU - Storey,, Hugo
AB - At last, a book on the Internal Protection Alternative (IPA)! Given how much the issue has vexed refugee law, a monograph devoted to this subject is long overdue. Few issues have exercised decision makers and scholars as much, with even the name of the test being often contentious. Schultz’s choice of title will perhaps prove the last word – consigning the ‘Internal Flight Alternative’ (IFA), the ‘Internal Relocation Alternative’ (IRA), and other formulations to mere historical record. It is worthwhile setting out her reasons for rejecting other formulations. She writes: Compared to the IFA, which suggests a backward-looking (only) inquiry, the IPA more clearly captures the fact that state or state-like protection must be presently, and durably, available. Further, ‘IPA’ seems more accurate than ‘internal relocation’ for a few reasons. First, the latter phrase has been historically used in some states to describe a subset of situations that are covered by the IPA concept. Second, the term ‘relocation’ today is also used to refer to the EU-administered programs to transfer protection claimants away from Greece and Italy to other member states. And finally, the neutral connotation of the word ‘relocation’ – which also refers to voluntary migration – camouflages the fact that IPA practice always involves forced displacement. (p 16) Not least of the reasons why this subject has needed a book is that its status in refugee law remains unsettled. On the one hand, the IPA is widely regarded as a well-established element of the refugee definition. On the other hand, unlike other key elements, the text of article 1A(2) of the 1951 Refugee Convention does not refer expressly to it, and application of a context, objects and purposes approach has yielded – and continues to yield – diverse interpretations of its status. The basic dilemma at the heart of the IPA is that it is only applied to persons who have already gone a long way to making out their claim; they have normally been found to be credible, and they have established that they have a well-founded fear of persecution for a Convention reason in their home area. Yet on widely accepted principles, they can still fail in their claim if it is found they can live safely and reasonably in an alternative part or parts of their country of origin. Schultz’s analysis begins with a chapter on ‘Methodology’ (chapter 2), which describes the sources and methods used to clarify both the treaty basis for IPA application and its scope of application. Chapters 3 and 4 address the question: ‘What is the treaty basis for IPA practice under the Refugee Convention?’. Chapters 5–7 explore the substantive and procedural parameters for IPA application. In chapter 8, Schultz’s focus shifts to IPA practice in complementary protection regimes. In chapter 9, she uses the example of Norway to ask how factors like legal traditions, politics, and administrative efficiency shape IPA practice. Chapter 10 draws the various threads of argument together into her conclusions. Readers of a book on the IPA must expect two things: a clear account of the state of the law as it is, and a coherent normative treatment, setting out the author’s own views. Schultz’s treatment of the state of the law as it is, is excellent. She traces the history and origins of the concept, noting that the travaux préparatoires do not obviously refer to it; that the treaty deliberations did ‘not obviously exclude persons with a localised fear of persecution’ (p 44); that State practice over the first three decades did not refer to it; that it was not addressed in early expert commentaries by Robinson, Weis, and Grahl-Madsen; that the reference to it in paragraph 91 of the 1979 United Nations High Commissioner for Refugees (UNHCR) Handbook was not intended to give it wide legitimation; and that the subsequent UNHCR Guidelines on International Protection: ‘Internal Flight or Relocation Alternative’ within the Context of Article 1A(2) of the 1951 Refugee Convention and/or 1967 Protocol relating to the Status of Refugees of 2003 still treat it as an optional test (p 67), as does article 8 of the 2011 European Union (EU) Qualification Directive (recast). For Schultz, the IPA is ‘an innovation in refugee status determination that emerged from state practice in northern Europe and has since spread to other parts of the world’ (p 60). Schultz’s treatment of the possible treaty bases for the IPA is helpful descriptively. She identifies four possible bases: (1) in the ‘well-founded fear …’ limb of the definition (which is where UNHCR and most senior courts have located it); (2) in the availment or protection limb (which is where the Michigan Guidelines on the Internal Protection Alternative (1999) and Hathaway and Foster in The Law of Refugee Status (2nd edition, 2014) locate it); (3) as an ‘unwritten exclusion clause’; and finally (4) (Schultz’s own preferred location), as ‘an implied limit on the right to refugee status’. Under bases (3) and (4), the IPA is not an integral part of the refugee definition. But her normative treatment of these four possible bases is disappointing. Despite highlighting in her chapter on methodology the importance of UNHCR legal guidance and of State practice as valid sources for treaty interpretation of the Refugee Convention, she appears to reject basis (1) for relatively tenuous reasons based on the principle of good faith and the fact that the existing jurisprudence strongly in favour of this basis emanates only from States that operate individualized refugee status determination systems. (She herself argues persuasively (pp 84–85) that the criticisms mounted by Hathaway and Foster of basis (1) do not really attack its inherent qualities, only misapplications in practice.) She ends up rejecting the two strongest candidates (bases (1) and (2)) in favour of what can only be described as a far-fetched basis (basis (4), which has virtually no support either in State practice or jurisprudence or academic authority. For Schultz, only a ‘narrow scope for IPA exists under certain circumstances’, either where it can be shown that the refugee is unwilling, owing to a well-founded fear of being persecuted, to avail him- or herself of home State protection, or where the IPA is an implied limit on the application of article 1A(2). Under basis (4), the claimant’s right to refugee status can be established under article 1A(2) regardless of whether there is a viable IPA, but the State must demonstrate that IPA application would be a proportionate interference in this right, considering the State’s interests in extending efficient Convention protection. Any limit on the claimant’s right to refugee status must involve, in Schultz’s view, a careful balancing of the impact of continued displacement against the State’s interest in preserving its restricted protection resources. She considers that this approach best safeguards against any overly broad application of the IPA, best preserves the rights of returnees and ensures that they can relocate in a safe and dignified manner. When one looks for the reasons why Schultz considers that the IPA is not an integral part of the refugee definition, and why she herself favours basis (4), one is left scratching one’s head. She rightly identifies that the strongest argument for treating it as being an inherent element derives from the principle of surrogacy, according to which international protection only comes into play when national protection in the country of origin is unavailable. She also rightly identifies that this principle locates the IPA as a condition for refugee status (p 210). However, having labelled this the ‘thick surrogacy’ view, she then seeks to argue that all the Convention justifies is a ‘thin surrogacy’ view, which treats lack of protection not as a condition of refugee status but as a ‘characteristic of a person who meets the Convention criteria’. Citing writings by Kälin and Kneebone, she argues that this view ‘better preserves the purpose of the Convention regime, which is to provide secure conditions of refuge for persons with a well-founded fear of relevant harm inside their countries of origin’ (p 123). Schultz then concludes that, whilst the Convention’s purpose is to provide substitute protection, ‘the need for such protection is not triggered by the absence of a domestic alternative’ (p 135). This reviewer, for one, is left struggling to understand Schultz’s argumentation. Obviously, if lack of protection is not a condition of refugee status, her argument has force, but her reasons for stating that it is not such a condition are hard to pin down. Despite their committing her to reject the well-established view that protection is part of the definition of ‘being persecuted’, she does not undertake any real engagement with this view. To the question, ‘[i]f there is protection available in part of the country of origin, then what is the basis for a grant of international protection?’, her only answer seems to be the rather circular one that the refugee definition is made out if a person has established a well-founded fear in his or her home area. For this proposition, her main argument appears to be that the term ‘country’ in article 1A(2) is not a term denoting territory but a legal relationship between the State and its nationals and that thus: There is no inherent reason why a single failure by the state of origin in one area is inconsistent with the grant of refugee status. Quite the contrary: the claimant’s lack of protection somewhere demonstrates the state’s inability to fulfill its basic duties to provide security for nationals countrywide, and to ensure their freedom of movement. (p 125) Assuming she is right (and this reviewer thinks she is) in stating that the term ‘country’ in article 1A(2) denotes a legal relationship, it is far from clear that it necessarily follows that protection by the State is unavailable or ineffective if it is only lacking in a part of the country. At the very least, there are significant arguments against her position which are not grappled with. True, if a person has established a well-founded fear of persecution in his or her home area, he or she does not enjoy freedom of movement throughout his or her country, but freedom of movement is not a requirement of the basic duty of a State to protect its nationals. Given that Schultz prefaces her own analysis by citing the leading cases that disagree with her view (for example, Rasaratnam v MIEA [1992] 1 FC 706, 709–11 (Federal Court of Canada)), one could expect more engagement and less mere assertion of the opposite. Schultz’s book contains an able treatment of the substantive and procedural requirements of the IPA notion. In chapters 5–7, she describes a range of approaches: (i) the ‘returnability’ model, focused solely on protection from refoulement (return to risk of persecution); (ii) the ‘flexible reasonableness’ model, advocated by UNHCR, among others; (iii) various proposals to strengthen the reasonableness criteria with objective standards derived mostly from international human rights law (although she includes here the espousal by Hathaway and Foster and other signatories of the Michigan Guidelines of 1999 of the ‘endogenous’ standards contained in articles 2–33 of the Refugee Convention); and (iv) a proportionality analysis. Schultz proposes a framework which uses factors drawn from human rights treaties and refugee law: breadth and depth of displacement; general security; access to rights on a non-discriminatory basis; best interests of the child; potential for family life; special needs, including mental or physical disabilities; lack of nationality; and experience of past persecution. Her coverage of procedural criteria identifies, inter alia, a requirement on the State to give notice of a proposed IPA, a burden of proof resting on the State, and a warning against treatment of an IPA case in accelerated procedures. Schultz accurately chronicles the way in which, in recent decades, States have treated the IPA as a restrictionist tool of refugee flow management, but is less convincing in arguing that there is an ‘integral link’ between the IPA and ‘protection elsewhere’ approaches (p 119). Schultz’s chapter 8 contains valuable insights into the interrelationship between the IPA within the refugee definition and the IPA within complementary protection regimes. She is clearly of the view that it would be best if the concept had the same core elements under both regimes (as it does under article 8 of the EU Qualification Directive (recast)), at least when exclusion provisions do not apply. Given the shortcomings she identifies in the application of the IPA in human rights courts, the European Court of Human Rights context in particular, her view that the Refugee Convention should be treated as a lex specialis in this area providing relevant operational parameters (p 318) has cogency. Her own treatment of the human rights approach to the IPA within the refugee definition is, however, less targeted. One is left with the feeling that, because Schultz sets so much store by her own (far-fetched) view that the IPA should be regarded as an implied limit on refugee status (basis (4)), she does not take seriously enough the criticisms made of the approaches to the substantive criteria that disavow a human rights approach. It is also difficult to follow why she thinks that the subjective aspects ‘tend to get lost’ in the human rights approach (p 115), given that in international human rights law, for example, the jurisprudence on article 3 of the European Convention on Human Rights strongly recognizes subjective aspects. Refugee law literature is much richer for this book. As mentioned already, it furnishes an excellent account of the state of the law as it is. The fact that the author’s own normative treatment adopts a view of the IPA significantly at variance with State practice, UNHCR guidance, and the bulk of the jurisprudence and scholarship, is not a problem as such. But one would have hoped for more systematic analysis of why she felt driven to reject more established views. Author notes Judge of the Upper Tribunal (UK); President IARLJ, Europe The views expressed here are the author’s own. © The Author(s) (2019). Published by Oxford University Press. All rights reserved. For Permissions please email: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model)
TI - The Internal Protection Alternative in Refugee Law: Treaty Basis and Scope of Application under the 1951 Convention Relating to the Status of Refugees and Its 1967 Protocol
JO - International Journal of Refugee Law
DO - 10.1093/ijrl/eez033
DA - 2019-12-24
UR - https://www.deepdyve.com/lp/oxford-university-press/the-internal-protection-alternative-in-refugee-law-treaty-basis-and-5W935wFm3o
SP - 404
VL - 31
IS - 2-3
DP - DeepDyve
ER -