From Dependence to Self-Reliance: Changing the Paradigm in Protracted Refugee Situations

Written by February 25, 2015 0 Comments
I’ve drafted a new policy brief on Changing the Paradigm in Protracted Refugee Situations. This brief was prepared for the December 2014 meeting of the Migration Policy Institute’s (MPI) Transatlantic Council on Migration.  MPI will publish a full version, including five other reports prepared for the meeting, in spring 2015.


I.       Introduction

Let us begin with two facts: (1) more than 51 million persons are displaced because of conflict and violence in the world today;[1] and (2) the majority of the world’s forced migrants—refugees and internally displaced persons (IDPs)—are in protracted situations, with little chance that their displacement will end anytime soon. Taken together, these facts paint a deeply disturbing picture. Millions of persons have not only borne the injuries and costs of being forced from their homes; they continue to suffer those harms, their lives essentially placed on long-term hold.


These are unhappy facts, too, for host and donor states. The vast majority of the world’s forced migrants reside in developing countries, which expect and rely on the international community to help provide assistance to the displaced. This is particularly so for refugees who, unlike IDPs, are not citizens of the states that have provided them asylum. While emergencies may attract a significant amount of funding,[2] support tends to diminish over time. Long-standing situations are perceived to have neither the urgency nor likelihood of resolution that draws heightened donor interest. Funds are disbursed year after year with little enthusiasm, amid beliefs that not much more can, or should, be done.


Viewed with a modicum of perspective, it should seem curious that assistance provided to refugees several decades after their displacement is categorized as “humanitarian” by governments and multilateral international organizations. Humanitarian relief is usually associated with emergency relief—tents, blankets, food, and medical care for those who have been forced from their homes after a cataclysmic event (earthquake, tsunami, civil war, targeted persecution, threatened genocide). As the United Nations (UN) guidance goes, humanitarian relief should give way—in fairly short order—to reconstruction; as the flood waters recede, people should leave their emergency shelters and begin to rebuild their homes and their communities.


The relief-to-development mantra can make sense in cases of natural disaster, when a temporary shock has taken a community off its normal development course. And this logic links to the mot-de-jour: “resilience.” A resilient society is able to withstand shock and begin rebuilding more quickly. But these concepts are more difficult to apply in situations of long-term displacement. Refugee camps and settlements persist in host communities, usually as isolated, unproductive islands sustained largely by the international community—or neglected altogether. Host states are not likely to include refugees in their national development plans, meant for their own citizens, and are not likely to want international funders to divert development dollars to non-nationals. As a result, international assistance to displaced communities continues to be sourced from “humanitarian” baskets no matter how long the displacement continues. A hallmark of such funding is that it usually bypasses host states—although state refugee agencies may receive financial support and host communities may benefit from some local services, such as schools and water, sanitation, and health (WASH) projects. Development funding, meanwhile, is generally bilateral and provided to states according to their development plans.


Federal Judge Issues Preliminary Injunction Against U.S. Department of Homeland Security Border Practices

Written by February 22, 2015 0 Comments

Judge James E. Boasberg of the U.S. District Court for the District of Columbia has issued a preliminary injunction against the Department of Homeland Security, stopping the Department’s policy of detaining asylum seekers. The full order can be read here.

The injunction is another example of how domestic laws and courts play an important role in protecting refugee rights.

“What if Manhattan…”

Written by December 17, 2014 0 Comments

The Hamdi Foundation has released a powerful new video that reminds us of the crisis of Syrian refugee children. Watch below.

Some more information about the Hamdi Foundation: The Hamdi Foundation works to support the world’s most vulnerable people affected by violence, war, poverty and discrimination. Through advocacy efforts and collaboration with major and innovative international humanitarian organizations and governments, the Foundation provides resources and mobilizes additional resources to help with relief and survival efforts in regions around the world. The Foundation was founded by Hamdi Ulukaya, a Turkish born entrepreneur and Founder and CEO of Chobani.

When UNHCR Does the State’s Job: Coping with the Reality of Mandate Status Determination

Written by December 11, 2014 0 Comments

Earlier this year, UNHCR Policy Development and Evaluation Services (PDES) published the first comprehensive report examining UNHCR’s policy assisting governments to establish their own refugee status determination (RSD) systems. The topic could not be more timely: from 2012 to 2013, the number of people applying for RSD at UNHCR offices climbed 61 percent, making UNHCR the largest RSD adjudicator in the world.  With this surge, UNHCR offices were able to decide just 35 RSD applications for every 100 submitted.

In order to cope with the strain, UNHCR has encouraged governments to re-assume responsibility for RSD. The PDES report offers considerable insight into the components of a successful transition from UNHCR to government RSD. But the overarching point is that such transitions are likely to be rare because they require a high degree of political will and sustained commitment.

In other words, the primary solution, state responsibility, that UNHCR has put forth to address the shortcomings of its own RSD operations is viable only in a few countries for the foreseeable future. The reality is that UNHCR will continue to do RSD in many countries. Thus, while transitions to government RSD should happen when feasible, UNHCR should also be working to ensure that its own RSD operations are as strong as they can be.

Yet, one of the most interesting insights of the PDES report lies in its suggestion that UNHCR’s singular focus on state responsibility may have contributed to a longstanding tendency to neglect its own RSD operations. To improve its refugee status determination, UNHCR needs a new paradigm to incorporate the fact that states do not always do everything they are supposed to. UNHCR offices often fill the gap, and refugees are usually much better off because of it.

The Refugee Convention does not stipulate who should conduct RSD. It defines refugees, and sets out the rights that they should enjoy. This silence offers the possibility for flexibility about how refugees’ rights can be protected. There is no legal reason why a state cannot fulfill its obligations to protect refugees by requesting UNHCR assistance in adjudicating refugee status. Indeed, UNHCR first started to do RSD because a government requested its assistance.

Some host governments actually prefer to shift responsibility for refugee policy to UNHCR. In a previous paper, Amy Slaughter and Jeff Crisp described the reasons why UNHCR operations sometimes develop into a  “surrogate state” for refugees. I have tried to build on their work using Arab states as a case study to identify why refugees and host governments sometimes prefer UNHCR to fulfill surrogate state functions, including RSD. I argued that in difficult protection contexts, a limited UNHCR surrogate state may be the best available political foundation for refugee protection.

Without question, states have capacities that UNHCR does not. Among other things, they have police, military, the ability to impose taxes, and legal sovereignty over territory. Host governments still bear final accountability for ensuring the protection of refugee rights. UNHCR can assist states, but it cannot do things that are beyond its capacity, like provide physical security or give refugees the right to work. Lines of responsibility need to be clear.

The point is that meeting refugee protection challenges may require states and UNHCR to take advantage of the flexibility built into international law. To say, “How can we get governments to set up their own RSD systems?” is to ask the wrong question. Instead, we should ask, “How can we best make sure that refugees are protected?” If the best way to do this is to have the government do RSD, then that’s what we should do. But if refugees are better off with UNHCR doing RSD, then UNHCR should be applauded for doing so.

Today, UNHCR faces an RSD crisis. The rapid growth in applications has strained offices beyond their capacity. These strains are likely to lead to ever more urgent calls for UNHCR to pull back, or cut corners in how it conducts RSD. Instead, this crisis should be an opportunity to take stock of UNHCR’s considerable accomplishments in RSD. Around the world, there are many refugees who have avoided deportation or detention because they went through a UNHCR RSD process. UNHCR RSD is often the gateway to protection, and many times the only gateway available.

Urban IDPs: A Useful Concept?

Written by November 28, 2014 0 Comments

During the past five years, growing attention has been given to the situation of urban refugees, much of it stimulated by the release of UNHCR’s 2009 policy on refugee protection and solutions in urban areas. But now, the spotlight is being turned on another phenomenon, that of internally displaced people (IDPs) in urban areas. In October 2013, for example, the Brookings LSE Project on Internal Displacement published a report on this issue, observing that “while urban environments often provide a conducive setting for internally displaced persons to rebuild their lives, they also present important protection, development and security challenges.”

In many senses, this is a very logical and progressive development. It is well known that in war-torn countries such as Afghanistan, Colombia and Somalia, large numbers of people flee from the violence that is taking place in the countryside and take up residence in cities and towns in order to find better security and alternative livelihoods opportunities.

The Afghan capital of Kabul, for example, has been growing at a rate of almost five per cent in recent years, and much of that growth is the result of an influx of people displaced by armed conflict. Many of them live in dire conditions in informal settlements dotted around the outskirts of the city, deprived of the basic necessities of life.

In February 2012, the New York Times revealed that more than 20 IDP children, all of them less than five years old, had frozen to death in Kabul, where they lived in tents and mud-walled shacks with plastic roofs.

Humanitarian officials in Afghanistan explained how this situation had arisen. The IDP settlements did not qualify for development aid because they were regarded as temporary facilities, and because many Afghan officials were opposed to their presence. Providing assistance to their residents, it was thought, would simply encourage the IDPs to remain there and attract new arrivals from rural Afghanistan.

At the same time, and because the settlements had been established a decade previously, they did not qualify for emergency assistance. According to the head of one local NGO, “they don’t have access to anything: health, education, food, sanitation, water. They don’t even have an opportunity for survival.”

There is an evident need to ensure that such scenarios are not repeated, whether in Afghanistan or in any other war-affected country. But there is also a need for a degree of care when targeting programs at urban IDPs.

It is not always easy to differentiate urban IDPs from other poor rural-to-urban migrants. Indeed, many of the people who are described as urban IDPs in cities such as Kabul, Bogota (Colombia) and Mogadishu (Somalia) have moved not only to escape from armed conflict, but also because their livelihoods have become unsustainable and because they have been affected by natural disasters such as floods and drought.

In cities such as these, very large numbers of people, whether displaced are not, are living side-by-side, confronted with the same daily challenge of eking out a living in the informal sector of the economy. At the same time, there is evidence to suggest that displaced people are confronted with some specific challenges.

According to the Norwegian Refugee Council, for example, IDPs in the Congolese city of Goma, “cite greater housing safety and security as a reason to move to the city, but their actual accommodation status in the city is often precarious. IDPs frequently have low tenure security in Goma. Low rates of property ownership, lack of  written lease agreements and an often indeterminate contract duration means that the tenure arrangements of IDPs are highly insecure, leaving IDPs at risk of forced  eviction, harassment and other threats.”

A further dilemma derives from the fact that some of the people who feel obliged to move from rural to urban areas, especially those from minority groups and those associated with particular political factions, may not wish to be identified as ‘urban IDPs’. In Colombia, for example, such people are often stigmatized, and so they prefer to remain anonymous rather than being labeled as a displaced person.

Given these complexities, how can humanitarian organizations address the phenomenon of urban displacement?

First, emergency assistance must be available to the most vulnerable IDPs, host families and other urban residents. And as a matter of principle, the concern that such assistance might act as a ‘pull factor’ for additional IDPs and rural-to-urban migrants should not be an obstacle to action. It is clearly unconscionable for babies and toddlers to be dying because their parents cannot afford to buy fuel wood or erect weatherproof shelters.

Second, community-based development assistance is required, so as to ensure that all urban residents, irrespective of whether they have been displaced or not, are able to benefit from adequate services, infrastructure and livelihoods opportunities, especially those living in slums, shanty towns and informal settlements.

Third, targeted interventions are required to address the specific protection risks encountered by urban IDPs, such as those that have arisen in the case of Goma.

And finally, there must be full respect for the wishes of those people who have moved to cities and towns in order to escape from armed conflict and other forms of violence, but who prefer not to be categorized as an IDP.


Tarakhel v. Switzerland: The ECtHR Takes Another Look at the Dublin Protocols

Written by November 24, 2014 0 Comments
European Court of Human Rights, Strasbourg, France

European Court of Human Rights, Strasbourg, France

Good news from Strasbourg: the European Court of Human Rights (ECtHR) has again allowed asylum seekers in Europe to challenge their removals within the EU under the Dublin regulation.

The decision in Tarakhel v. Switzerland involves a family from Afghanistan that originally sought asylum in Italy in 2011. After several days in an Italian center for asylum seekers, the family left Italy, claiming asylum again in Austria and then again in Switzerland a few months later. But Switzerland moved to send the family back to Italy under the Dublin regulation, which controls where asylum claims are examined. In most cases under the Dublin system, this is the first EU member state asylum seekers reach. If they claim asylum in a second member state, this second country may deport them back to the first for their claim’s adjudication. (For more on Dublin II in the Bulgarian context, see Colson Lin’s post on this blog).

Tarakhel argued that removing the family back to Italy, where they might be split up and made to wait for a long period before a decision, would subject them to inhuman treatment. Such treatment would violate their rights under Article 3 of the European Convention on Human Rights (ECHR), which prohibits torture and degrading and inhuman treatment, as well as Article 13 rights to an effective remedy.

The court rejected the Article 13 claim. But it held, given the deficiencies in parts of the Italian asylum system, that Swiss authorities would violate Article 3 were they to send the Tarakhels back to Italy without guarantees that special consideration would be given to the children and the family’s wellbeing.

The decision joins a growing body of case law from the Strasbourg court regarding the Dublin system. In 2011, in M.S.S. v. Belgium and Greece, the court held that Belgium should not return an Afghan national to Greece under the Dublin regulation. It found that Greece had violated the applicant’s Article 3 and 13 due to the risk he’d be deported back to Afghanistan without a serious adjudication of the merits of his claim. And if Belgium sent the individual back to Greece, the court said, it would violate his Article 3 rights in light of concerns raised by the UNHCR and others about the lack of effective protection measures in Greece.

The court in this case did not go as far as M.S.S., saying that Italy’s asylum facilities are much more robust than those in Greece and “the most extreme poverty” did not exist on a large scale among asylum seekers in Italy. Still, the court argued that young asylum seekers demand “special protection” and that facilities must be adapted to take into account the age of the children, their specific needs, as well as their extreme vulnerability. In this particular case, therefore, the court concluded that Swiss authorities should not return the family without first receiving “individual guarantees from the Italian authorities that the applicants would be taken charge of in a manner adapted to the age of the children and that the family would be kept together.” Without these assurances, the Swiss government might be violating Tarakhel’s Article 3 rights.

The underlying presumption of the Dublin system is that, despite differences in form and procedure, EU member states can each  protect equally the rights of asylum seekers. It is not an idle consideration: with grant rates, reception conditions and support levels varying greatly among EU member states, the location where applicants make an asylum claim can greatly affect its result.

But the court is closely watching the Dublin approach. In this case, building on the M.S.S. decision, the court held that “the presumption that a State participating in the ‘Dublin’ system will respect the fundamental rights laid down by the [ECHR] is not irrebuttable.”

By implicitly linking failures of individual member state’s asylum procedures and reception conditions with one of the most fundamental protections in the ECHR, the Tarakhel decision clearly demonstrates that where — and how — asylum applications are adjudicated constitutes a fundamental rights issue. In so doing, the court appears willing to provide an important avenue for asylum seekers to challenge any rote implementation of the Dublin regulation without regard to its effects on substantive rights.



Climate Change: Failing to Plan is Planning to Fail

Written by November 16, 2014 0 Comments

Few issues have such far-reaching global implications as climate change. Climate-related displacement is a pressing issue that is increasing in scope and challenge every year. Between 2008 and 2012, sudden-onset disasters displaced an estimated 144 million people.[1] In 2013 only, 22 million people were displaced by disasters brought on by natural hazard events. Developing countries bear the brunt, accounting for more than 85 percent of displacement.

In 2010, the Conference of Parties (COP) to the United Nations Framework Convention on Climate Change (UNFCCC) invited Parties “to enhance action on adaptation under the Cancun Adaptation Framework. . .by undertaking. . . [m]easures to enhance understanding, coordination and cooperation with regard to climate change induced displacement, migration and planned relocation, where appropriate, at national, regional and international levels.” [2]

While people should be allowed to remain in their original settlements, governments may determine through vulnerability and risk-assessment activities that a community needs to be physically resettled to be protected from the effects of climate change. States will increasingly use this policy option as a last resort to move populations out of harm’s way in the face of foreseeable hazards.

In March 2014, UNHCR joined with the Brookings-LSE Project on Internal Displacement and Georgetown University’s Institute for the Study of International Migration to organize an expert consultation on planned relocations in the context of climate change. The consultation brought together 43 experts from 21 countries and produced a report that identifies preliminary guidance and remaining gaps. Planning for relocation requires the consultation and participation of affected communities, including both host and relocating communities. It also requires creating an enabling environment for a legal basis for undertaking planned relocation, capacity-building, institutionalization, and a whole-of-government approach to ensure a human rights-based approach to this process.

For more information on what UNHCR is doing in this area, please visit UNHCR’s thematic web page and download the new overview on UNHCR, the environment and climate change.


[1] IDMC. Global Estimates 2014: People displaced by disasters, September 2014, available at:

[2] UNFCCC, Paragraph 14 (f) of Decision 1 CP/16, 2010, available here :


Humanitarian Emergencies: An Innovative Funding Formula?

Written by October 30, 2014 0 Comments

In a recent speech to his governing board, UN High Commissioner for Refugees Antonio Guterres made an intriguing but little-noticed proposal — that the humanitarian response to major emergencies should be partly funded in the future by assessed rather than voluntary contributions.

But what exactly did he mean by that?

Since its establishment in 1951, UNHCR, the UN’s refugee agency, has had to beg for almost every dollar that it spends in protecting, assisting and finding lasting solutions for the world’s displaced people. Each year, the organization issues a Global Appeal, asking governments and other donors to contribute to the UNHCR budget. When new and unexpected crises erupt, UNHCR is obliged to launch an emergency appeal, hoping that donor states are willing and able to provide UNHCR with additional resources.

There are a number of reasons why this longstanding system of resource mobilization has become an increasingly inadequate one.

First, emergency appeals are almost never fully funded, and in many cases the response falls well short of what is required to provide refugees and other displaced people with their basic needs. The current refugee emergency prompted by the armed conflict in the Central African Republic, for example, has received only one third of the funding requested by UNHCR. At a time when so many other crises have erupted — Iraq, South Sudan, Syria, Ukraine — humanitarian funds seem certain to become even more tightly stretched.

Second, the voluntary system of funding encourages states to earmark their contributions to UNHCR. Rather than providing the organization with core funds that it can use in the way it thinks best, donor states are able to specify the countries and activities they wish to support. In 2012, for example, only a quarter of the funds received by UNHCR came in the ‘unrestricted’ category. The evident disadvantage of this arrangement is that some countries and activities are more popular with donors than others, leaving UNHCR unable to prioritize those activities which it considers to be the most urgent.

A third reason for considering alternative ways of humanitarian funding relates to the very limited number of states that make significant contributions to the UNHCR budget. According to the data from 2012, more than 70 per cent of the organization’s budget was provided by just 10 donor states, led by the United States, member states of the European Union and Japan. While the Syria crisis has prompted ‘non-traditional’ donor states in the Middle East to increase their contributions to UNHCR, the organization’s funding base remains a very narrow one.

Fourth, the voluntary system of funding for emergency operations inevitably leads to inter-agency competition within the UN system, with UNHCR vying for resources with organizations such as UNICEF and the World Food Program. While such competition arguably acts as a stimulus for operational efficiency — donor states are always looking for the best value for money from the agencies they fund — it can also hinder coordination and encourage humanitarian agencies to spend considerable amounts of time and money in the effort to gain greater visibility.

As a result of these issues, recent years have witnessed some significant developments with respect to humanitarian financing in general, especially with the establishment of ‘pooled funding’ arrangements such as the Central Emergency Response Fund (CERF). Managed by the UN’s Office for the Coordination of Humanitarian Assistance, CERF collects funds from donors on a continual basis, setting them aside for the immediate use by humanitarian agencies when new emergencies strike. As well as disbursing funds very rapidly, CERF is also able to target resources at the world’s most neglected and underfunded crises.

In his recent speech, Antonio Guterres suggested that the UN should now consider the establishment of a ‘super-CERF’ which would provide UNHCR and other humanitarian agencies with immediate funding when particularly large-scale crises erupt. As with the UN’s peacekeeping operations and other core functions of the world body, the super-CERF would be funded not by voluntary contributions, but by levies on member states based on their national income.

Such a fund would not be a panacea to the problem of humanitarian financing. As one analysis concludes, “arrears are a chronic problem for the United Nations. Many poorer nations cannot afford their full assessment. Other countries…have delayed or withheld payments for reasons unrelated to their ability to pay.”

Even so, the Guterres proposal has a number of important attractions. It would help to improve the quantity and timeliness of humanitarian funding. It would make such funding more predictable and enable the most urgent humanitarian needs to be met. And it would increase the number of states contributing to major emergency operations, thereby reinforcing the principle that the international community as a whole has a responsibility towards  people whose lives and livelihoods are at grave risk.


Camp Currency and Local Economies

Written by October 28, 2014 1 Comment

In a recent article in the Journal of Refugee Studies, Brent Ranalli confronts a persistent problem facing global refugee camps: the lack of hard currency. As Ranalli notes, the dearth of currency causes a shortage of needed and desired goods, exacerbates inefficient camp economies, and perpetuates divisions between refugees living in the camps and locals living in neighboring communities.

Ranalli proposes introducing local camp currencies to address these problems. He posits that, if officials could create a well-regulated camp currency and convince both camp service-providers and neighboring residents to accept it, local demand could be met with local supply and barriers between refugees and neighboring communities might even be surmounted. Finally, pride among camp residents would increase. Indeed, Ranalli points to successful instances of new currency introduction in similarly cash-strapped, localized contexts, though he notes that there has never been a pilot program introduced in a refugee-camp context.

Ranalli’s idea is precisely the type of innovation project that UNHCR and this blog have championed and his proposal is both thoughtful and novel. I am concerned, however, that this is an untested and imperfect resolution to a crippling problem when a simpler and better solution may exist. There have been several instances of the successful introduction of cash grants (in the form of the host country’s currency), which seems far preferable to the creation of local currency.

Ranalli’s idea is predicated on both the regulation of local currency and the acceptance of the currency by camp and host country residents.  The regulation alone is problematic: printing currency and taking anti-counterfeiting measures presents an unnecessary cost and could be quite inefficient. That inefficiency is only compounded by the need to sensitize potential participants to accept camp currency. My concern is that until a critical mass of acceptance is achieved, the use of a distinct “refugee” currency might only serve to perpetuate stigmas and divisions between refugees and locals. Finally, there may be legal obstacles to introducing a localized currency that would compete with host country currency; not every host country would be amenable to Ranalli’s proposal.

Ranalli does raise an important point about host country currency flowing outside of the camps rather than circulating within them. However, the concept of local currency does not strike me as a solution to this problem. Until local currency becomes widely accepted by service-providers outside of the camp, it will function a lot like an imperfect voucher system, redeemable only for certain goods at certain places. Further, once it is widely accepted at businesses outside of the community, it becomes vulnerable to the same “capital flight” as host country currency, albeit in a more concentrated area immediately surrounding the camp.

I encourage readers to revisit Alexander Betts’s post and the corresponding report by Betts’s Refugee Studies Centre, which present a compelling case for integrating refugees into the real local economy, for the benefit of both the refugees and the local community. The idea of cash grants – which have worked well in Lebanon and Congo – coupled with further refugee integration into the local economy, seems like a more efficient and desirable way of addressing the problems Ranalli identifies.

Domestic Laws and Refugee Protection

Written by October 5, 2014 0 Comments

On September 22, a nine-judge panel of the Supreme Court of Israel issued a groundbreaking decision, ruling that the Israeli policy towards asylum-seekers and migrant workers violated the constitutional guarantees of the country’s Basic Law on Human Dignity and Freedom. The decision mirrors a judgment by the same panel last year and has its origin in originates with a recent influx of refugees and migrant workers from Africa. In 2012, the Knesset (Israel’s Parliament) amended the country’s so-called Anti-Infiltration Law to allow the state to detain undocumented migrant workers – many of them potential asylum seekers – for up to three years, and implemented harsh new penalties for aiding such individuals. In September 2013, the Court struck down the law, ruling it a violation of the Basic Law to hold asylum seekers for prolonged periods, and rejecting the use of detention policy as a deterrent for others seeking asylum. In the 2013 decision, the Court asserted, “Hard as the task with which Israel is forced to contend might be, we must remember that those who are already within our gates – are present among us. They are entitled to the right to freedom and right to dignity conferred by the Basic Laws to every person.”

In response to that decision, the Knesset passed a law allowing migrants to be held for up to a year in an open facility, and the state established the Holot facility in the Negev desert for this purpose. Holot currently houses about 2,200 asylum seekers from Eritrea and Sudan, each of whom must be present for three daily counts and none of whom may work. The Court’s recent ruling soundly rejected the Knesset’s revised approach and ordered that Holot be closed within 90 days. One of the Justices noted that “Many legal solutions can be considered — but they must be constitutional… A constitutional solution must reflect the balance between the general welfare and the individual’s welfare.”

(Stock Flickr Creative Commons)

(Stock Flickr Creative Commons)

The decision is notable for its use of domestic law to protect the refugees: while it may be safe to assume that international human rights and refugee protection principles played into the Court’s reasoning, the crux of the opinion seemingly grows out of Israel’s own domestic law and jurisprudence. In this regard, the case is reminiscent of the European Court of Human Rights (ECHR) decision in Hirsi Jamaa and Others v. Italy. In upholding the rights of Libyan asylum seekers intercepted at sea, the Court closely considered the Refugee Convention, but ultimately decided on the basis of Italy’s domestic law and the European Convention on Human Rights. The ECHR noted “Refugees attempting to escape Africa do not claim a right of admission to Europe. They demand only that Europe, the cradle of human rights idealism and the birthplace of the rule of law, cease closing its doors to people in despair who have fled from arbitrariness and brutality. That is a very modest plea, vindicated by the European Convention on Human Rights.”

Several months ago, James Hathaway wrote on this blog of states’ resistance to compliance with various provisions of the Refugee Convention. He pointed out the severe negative consequences of this reticence, and they are certainly troubling. Nevertheless, Israel’s recent decision and the Hirsi Jamaa case are welcome reminders that sometimes domestic and regional laws can do the trick. Domestic laws protect refugees, and – while it is desirable for states to fully embrace the Refugee Convention – their failure to do so does not leave asylum-seekers without rights or courts without the power to enforce those rights.

Of course, courts have sometimes ruled the other way. The Israeli Court’s decision and Hirsi Jamaa stand in stark contrast to the U.S. Supreme Court’s 1993 decision in Sale v. Haitian Centers Council, which upheld the President’s executive authority to repatriate intercepted Haitians seeking asylum following a bloody coup. The Sale case does, however, demonstrate the far reach of domestic courts’ decisions in cases regarding refugees. As discussed at a recent conference, the Sale case had global implications and was used to justify repatriation of asylum seekers worldwide. One can hope that more decisions protecting refugee rights through domestic law would have a similar impact.