Temporary Protection and Temporary Refuge

Abstract

Abstract Unlike ‘complementary protection’, the concepts of ‘temporary refuge’ and ‘temporary protection’ represent challenges to the Refugee Convention, exposing a real or perceived flaw in the way the Convention articulates immediate protection with longer-term solutions. This flaw tends to come to light mainly within the context of large-scale influxes of refugees, situations in which another ‘broken link’ all too often surfaces, namely between the principle of non-refoulement and the principle of international solidarity. Despite significant differences dictated by the time at which, and the space within which, they appeared in the law and practice of States, temporary refuge and temporary protection regimes share the ambition of regulating the continuum from admission and immediate relief to international (or regional) mobilization towards durable solutions. While temporary refuge was first conceptualized in the Asia-Pacific region, temporary protection reached a higher degree of formalization on the European continent, to the point of becoming a term of art in European Union law. It was originally conceived as a return-oriented protection mechanism, largely outside the Refugee Convention regime, before being recognized as a procedure of exceptional character and a prelude to the full operation of Convention standards. Regrettably, the only binding instrument covering all aspects of temporary protection—a 2001 EU directive—has never been implemented and may soon be repealed. While scholarly and policy debates over temporary refuge and/or temporary protection have creatively explored the outer limits of international refugee law, they have thus far failed to dispel ambiguities regarding the scope of ‘regimes of exception’ in refugee law and their relationship to the Refugee Convention-based regime. The time may have come to unpack the varied issues which temporary refuge and temporary protection have come to represent, in order to address them within known legal frameworks.