Relevant law:

PRIMARY DOCUMENT - 1951 Refugee Convention and Protocol

PRIMARY DOCUMENT - OAU Convention Governing the Specific Aspects of Refugee
Problems in Africa
PRIMARY DOCUMENT - Cartagena Declaration on Refugees (the Americas)
PRIMARY DOCUMENT - EU qualification directive

Case-law:
READING - AF Kiribati 2013 NZ Immigration and Protection Tribunal - refugee
convention considerations paras 53-59, 65 and 75.pdf

Syllabus:
Climate refugee?
READING - McAdam Chapter 2: The Relevance of Refugee Law (13 pages)
READING - 2016 - Scott - Applying the Refugee Convention in the context of Climate
Change.pdf
READING - UNCHR: Persons in need of international protection (6 pages)
SKIM READ - 2009 - McNamara and Gibson - Pacific Island Ambassadors at the UN
do not want to be called "climate refugees" (9 pages)
Optional - UNHCR Handbook on Procedures and Criteria for Determining
Refugee Status.pdf
Groundswell Part 2: Acting on Internal Climate Migration1

Regional Refugee Protections

READING - 2020 - UNHCR legal considerations paper - read from page 7 to end (5
pages).pdf
READING - Wood: Developing Temporary Protection in Africa (3 pages)
HIGHLY RECOMMENDED - Wood - Regional Refugee Protections.pdf
Optional: Tabucanon: Association of South East Asian Nations and environmental
migration in the Pacific
Optional - Sharpe Chapter 3: The 1969 Convention (African region)

Case studies:
READING - UNHCR: In Harm's way (summary report)

1
Viviane Clement and others, ‘Groundswell Part 2: Acting on Internal Climate Migration’ (World Bank 2021)
<https://openknowledge.worldbank.org/handle/10986/36248> accessed 20 December 2021.
Parts of this will be read during class for an exercise: World Bank Report on Climate
Vulnerability in Haiti.pdf
Goodwin-Gill - Article 31 of the 1951 Convention relating to the Status of Refugees (see
especially pages 33-34 "summary and tentative conclusions")

Articles:
The Global Mobility Infrastructure: Reconceptualising the Externalisation of
Migration Control2

Environmental Protection, I. Brownlie (2003)3

Sustainable Development, Sands & Peel (2012)4

Is International Law Really ‘Law ’?5

Powerpoint by Miriam:
LECTURE 3 - Refugee law and catch up from last time - as presented.pdf
210930 - Haiti case study and intro to human rights system - lecture slides.pdf

Analysis:
Definition of “refugee” broken down
• Well-founded fear
• Of persecution
• On the basis of race, religion, nationality, membership
of a particular social group, or political opinion
• Is outside his country of nationality
• Unable to avail himself of the protection of that country
• Or, owing to the fear, unwilling to

Fear (subjective element)

2
Thomas Spijkerboer, ‘The Global Mobility Infrastructure: Reconceptualising the Externalisation of Migration
Control’ (2018) 20 European Journal of Migration and Law 452.
3
‘Environmental Protection, I. Brownlie (2003).Pdf’.
4
‘Sustainable Development, Sands & Peel (2012)-1.Pdf’.
5
Anthony D Amato, ‘Is International Law Really “Law”?’ (1984) 79 Northwestern University law review 1293.
• The fear does not have to be the reason the person left the country
• Personal to the individual and impossible to quantify externally
For example, strong political or religious convictions are relevant and may make one person’s
fear different to another’s

Well-founded (objective element)

Whether there are sufficient facts to find that the applicant, in their own circumstances, faces
a serious possibility of persecution
• Can consider: the laws of the country; the way it treats other members of his/her “group”;
experiences of friends and family; someone well-known might be at greater risk.
• Each case must be determined on its own merits “Group determinations” or ”prima facie
approach”: where all persons of a particular group are regarded as refugees. (Often
considered to be informed by this objective test)

What is “persecution”?
No universally accepted definition
UNHCR: “serious human rights violations, including a threat to life or freedom as well as
other kinds of serious harm”
• Requires discriminatory intent (on a Convention ground)

Article 31(1)
The Contracting States shall not impose penalties, on account of their illegal entry or
presence, on refugees who, coming directly from a territory where their life or freedom was
threatened in the sense of Article 1, enter or are present in their territory without
authorization, provided they present themselves without delay to the authorities and show
good cause for their illegal entry or presence (Art 31(1) – see reading by Goodwin-Gill on
absalon too)

Although expressed in terms of the ‘refugee’, Article 31(1) applies also to

asylum seekers and ‘presumptive refugees’.
• Without delay’ is a matter of fact and degree as well; it depends on the
circumstances of the case, including the availability of advice
• “good cause” =
• to come directly from the country in which the claimant has a well -founded fear of
persecution
• to ‘come directly’ from such country via another country or countries in which he or
she is at risk or in which generally no protection is available, is also accepted as ‘good
cause’ for illegal entry.
• Other factual circumstances, such as close family links in the country of refuge, may
also constitute ‘good cause’.
• The criterion of ‘good cause’ is flexible enough to allow the elements of individual
cases to be taken into account.

AF Kiribati:
Write notes to this, para. 55 is very important. Para. 65 explains para. 55
See READING - 2016 - Scott - Applying the Refugee Convention in the context of
Climate Change.pdf.

The evolving interpretation of “social group”

To be a “social group” the people must be connected by a “fundamental immutable
characteristic other than the risk of persecution itself”
Sexual orientation or gender identity is now a recognised social group (in some places and by
UNHCR) but it was definitely not a conception of refugee when the Convention was drafted
- What are the distinctions between “sexual orientation and gender identity” on one hand, and
“climate displaced people” on the other hand, that would make it difficult to argue the case
for climate refugees?

Art. 31 of the refugee convention

The refugee can’t be punished for entering illegally. See Goodwin-Gill - Article 31 of the
1951 Convention relating to the Status of Refugees (see especially pages 33-34
"summary and tentative conclusions")
 Criteria of good cause for the refugee to enter illegally

OAU Convention
 No persecution requirement
 No requirement of moving to a safe part of a country, Art I (2)
 There are four main ways in which the expanded refugee definition, contained in article
1(2) of the 1969 Convention, is frequently said to be more expansive than its interna-
tional counterpart. First, the expanded refugee definition comprises a purely objective
set of criteria, focusing on general conditions in the refugee's country of origin rather than
his or her individual, or subjective, fear of persecution. Second, the generalized nature of
the refugee-generating events - external aggression, occupation, foreign domination and
events seriously disturbing public order - means that the definition provides better
protection to persons fleeing widespread or indiscriminate forms of harm, such as civil
war. Third, the requirement that the relevant event occur only ‘in the whole or part’ of the
refugee’s country of origin removes the 1951 definition's so-called ‘internal flight
alternative, meaning that the refugee is not required to first seek protection within in their
own country before qualifying for refugee status elsewhere. Finally, and deriving largely
from the first three features, the expanded refugee definition is said to be particularly
suited to group-based RSD and the provision of protection in situations of mass influx." -
copied

Cartagena definition:
Cartagena Declaration: “...persons who 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 seriously disturbed
public order”