DIVERGING INTERPRETATION OF ARTICLE 1D OF THE 1951 REFUGEE CONVENTION AND THE PLIGHT OF PALESTINIAN REFUGEES FLEEING SYRIA AND NEIGHBOURING HOST NATIONS (Research Paper Sample)

DIVERGING INTERPRETATION OF ARTICLE 1D OF THE 1951 REFUGEE CONVENTION AND THE PLIGHT OF PALESTINIAN REFUGEES FLEEING SYRIA AND NEIGHBOURING HOST NATIONS NAME DATE "[M]ost national authorities have not to date implemented the proper interpretation of Article 1D, despite the repeated and numerous recommendations of UNHCR - for example, in the Revised Note (see further Section III). This means that Palestinian refugees are often in practice denied the rights and protection to which they are entitled according to the legal framework set out in Article 1D."   Prof. Susan Akram Table of Contents TOC \o "1-3" \h \z \u 1.Scope PAGEREF _Toc59990058 \h 3 2.Introduction PAGEREF _Toc59990059 \h 3 3.The Recommended Interpretation of Article 1D by UNHCR PAGEREF _Toc59990060 \h 4 4.Interpretation of Article 1D PAGEREF _Toc59990061 \h 6 4.1.Non-Application of 1D PAGEREF _Toc59990062 \h 7 4.2.Non-application of 1D for Reasons Incorrect PAGEREF _Toc59990063 \h 7 4.3.The Correct Interpretation of Article 1D PAGEREF _Toc59990064 \h 11 4.4.The Decision of Ms Bolbol – Incorrect EU Interpretation PAGEREF _Toc59990065 \h 12 4.5.New Hope in EU interpretation – El Kott PAGEREF _Toc59990066 \h 14 4.6.The US Factor and Implications on Palestinian Refugees PAGEREF _Toc59990067 \h 15 5.Does Article 1D Misinterpretation Impacts the Palestinian Refugees Today – Practical Implications PAGEREF _Toc59990068 \h 15 6.Conclusion PAGEREF _Toc59990069 \h 17 References PAGEREF _Toc59990070 \h 19 Scope Under Art. 1D of the 1951 Refugee Convention, individuals who receive aid from UN agencies are singled out. The clause applies to the refugees in Palestine who receive aid from the UN Refugee and Works Agency (UNRWA). Even though this clause was enacted to afford the refugees in Palestine high measures of protection, many national courts and government has ended up interpreting the same in a manner that leaves them without protection. The application of the Article to the modern-day Palestine crisis and the crisis in Syria is also one area which is blurred and unclear. The scope of this paper argues that the interpretation of Article 1D has been highly restrictive by nations. The same Article has also seen varied definitions and interpretations by the courts of member states. Introduction The Convention on the Status of Refugees (Convention) applied initially to persons who found themselves outside their states before the events in 1951. After the 1967 Protocol was passed, the geographical limitation was removed, and the Convention applied to anyone who was a refugee because of persecution on grounds of race, religion, nationality, etc. Under Article 1D, the Convention provides for an exception to cater for Palestinians due to their unique nature of being stateless. Providing that: This Convention shall not apply to persons who are at present receiving from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees protection or assistance. When such protection or assistance has ceased for any reason, without the position of such persons being definitively settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations, these persons shall ipso facto be entitled to the benefits of this Convention. Under 1D persons who were receiving assistance or protection from a UN agency, particularly the UN Refugee and Works Agency (UNRWA), were automatically not included in the Convention. The same also provides a caveat, such that if the protection stops, the person should fall within the protection of the Convention. The consequences and implications of the provision have been diverse and overreaching. Also, the Article has posed many questions and challenges in determining who qualifies as a refugee in areas where UNRWA operates. The first question that comes to mind is who is affected by this clause, given that UNRWA operates in many areas like Gaza, Syria, Jordan, Lebanon, and the West Bank and not in other areas, hence the question of when does assistance and protection of UNRWA end. Secondly, there is the issue of multiple political crises where UNRWA operates and Palestinian secondary displacement. Given that the Palestinians are registered under the organisation, the major question which often arises is whether they fall within 1D and not if they meet the requirement of a refugee under the Convention. Given that there is no authority on the number of displaced Palestine the diverging status recognition and implementation of 1D has had negative impacts. The Recommended Interpretation of Article 1D by UNHCR The agency emphasises two key elements – first, the prevention of overlapping mandates and competencies. And secondly, to ensure continued protection long term continued protection of Palestinian refugees. The interpretation which is recommended is that Article 1D applies to Palestinians displaced at the time of the 1948 and 1967 hostilities and also their descendants. Because of Palestinians receiving aid from UNRWA, they were generally prevented from the protection of the Convention. They had to meet the conditions set in the 2nd paragraph of 1D, and their status determination will be pegged on Article 1A (2). In the decision of Bolbol v. Bevándorlási és Állampolgársági Hivatal The CJEU held that only those Palestinians who had availed themselves of UNRWA for assistance meet the criteria for Article 1D, and not generally those who are eligible. The UNHCR has insisted that 1D has a dual purpose, and hence, eligibility does not depend on availing oneself of. The goal is to ensure that Palestinians who are not protected under 1D can get protected under the Convention. This wider status ensures that the refugee character of the Palestinians is recognised, reducing the chances of denial of protection or the creation of a gap. There is a call for the reconciliation of the interpretation of 1D under Article 3 of the Qualification Directive. Member states are mandated to have favourable standards for the determination of refugee qualifications. Also, under the second paragraph ‘cease for any reason’, the UNHCR has argued that the terms must not be restrictively constructed. And hence the phrase will be deemed to include the termination of UNRWA, discontinuing its activities. UNHCR proposal implies that if a Palestinian fails to meet the requirement of 1D, for instance, he is unable to return to UNRWA-operated regions for a reason like being denied travel documents, then he is a refugee for the purpose of Article 1D and the Convention. ‘Receiving protection or assistance’ must be interpreted to mean those Palestinians displaced with both the 1948 and the 1967 hostilities. The same must include the descendants, too. Besides, the UN has outlined how ‘cessation of protection or assistance’ must be interpreted. ‘For any reason’ must be interpreted in line with the purpose of the Convention to ensure continued protection. Palestinians within the areas of UNRWA operation cannot claim the protection ceased generally unless they meet El-Kott standards (discussed later on). But for those who have left such areas, then ‘ipso facto’ are entitled to Convention benefits. Moving outside UNRWA and returning means that the person will be moving back and forth between paragraphs 1 and 2, irrespective of the reasons for leaving. On determining the ‘benefits of the directive’, the same means standards of treatment which the Convention members are mandated to accord the refugees under Article 2-34 of the Convention. Thus, Palestinians must be treated just like other refugees and not be treated as if they were UNRWA. Interpretation of Article 1D Most countries in the EU and other areas have interpreted Article 1D in a manner which offers no protection to the Palestinians. Some do not recognise the application of 1D in their asylum law and hence use Article 1A (2) or equivalent provisions. Secondly, some recognise 1D but interpret the law differently and inconsistently. There are thus four approaches: non-incorporation of 1D into national law, non-application, failed application due to interpretation error and proper application of 1D. Non-Application of 1D There are countries which believe that Article 1D only applies in areas which are operated by UNRWA and hence do not apply to those outside the UNRWA areas. Therefore, if the refugee is outside such areas, their status is determined by Article 1A (2). Austria is one such country. All Palestinian asylum cases are determined using 1A (2). One case is Decision 220.450/0-IX/27/00. In this case, the Review Board decided that 1D was not part of the Austrian asylum laws. Austria is a single procedure country; even in some decisions, the Review Board rejects the application of 1D based on the fact that the Palestinian refugee had met the conditions in Article 1A (2). The same procedure applies in Switzerland and Belgium. The determination of refugees is standard for all. And a Syrian refugee will be treated equally as a Palestinian refugee, for instance. Non-application of 1D for Reasons Incorrect Not all countries operate like Switzerland or Austria. Many other countries recognise and apply the clause. Theoretically, it is argued that the same ends up becoming inapplicable due to the misinterpretation of the clause. In Germany, the Netherlands, and France, the courts agree that refugees need to meet all conditions of Article 1A (2); at the same time, they also believe that special events must trigger Article 1D, creating different approaches. In Germany, the courts have found that the motive for leaving UNRWA areas of operation must be external factors. Thus, the behaviours of the refugees were key in determining whether the Palestinians would be considered refugees. Thus, if one leaves such a protected area ‘voluntarily’, then the 1D and 1A (2) will not be applicable. The second clause, that dealing wi...