What Do We Mean by Protection?

in International Journal on Minority and Group Rights
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Protection is arguably the raison-d’être of refugee policy. Yet, surprisingly, the meaning of protection is not without ambiguity. ‘Domestic protection’ can be distinguished from ‘international protection’; the sense attributed to protection within the 1951 Refugee Convention contrasts with that of the 1950 United Nations High Commissioner for Refugees (UNHCR) Statute. Equally, how the state interprets its protective obligations departs frequently from the practice of humanitarian organisations. Alongside such differences, there has been a proliferation of protection concepts in recent years which, far from improving understanding, have added unnecessary confusion and undermined the fundamental purpose of protection. This article considers the language of ‘protection’ within the refugee field and argues that protection proliferation must now be addressed and reversed.




Geneva, 28 October 1933, League of Nations, Treaty Series Vol. CLIX No. 3663.


Geneva, 10 February 1938, League of Nations Treaty Series, Vol. CXCII, No. 4461.


Hathaway, supra note 26, p. 8.


Fortin, supra note 38, pp. 569–570.


134408/08 ASIM 72, 24 September 2008.


Hathaway, supra note 26, p. 94.


2004/83/EC, OJ L304/12, 29 April 2004, Article 2(e); 2011/95/EU, OJ L 337/9, 13 December 2011, Article 2(f). Article 15(c) sets out the criteria for qualification for subsidiary protection.


McAdam, supra note 81, p. 110, see especially ch. 2.


Hathaway, supra note 28, pp. 104–105.


Hathaway, supra note 28, p. 133.


Hathaway, supra note 28, p. 134.


Per Lord Brown, AH (Sudan) & Others v. Secretary of State for the Home Department [2007] UKHL 49, para. 42. In AH(Sudan), it was held that the claimants from rural Darfur could be returned to what were accepted as “appalling” conditions of IDP and squatter camps around Khartoum.


In Case C-465/07, Elgafaji v. Staatssecretaris van Justitie [2009] ECR 1-921, para. 39, the European Court of Justice held that “the more the applicant is able to show that he is specifically affected by reason of factors particular to his personal circumstances, the lower the level of indiscriminate violence required for him to be eligible for subsidiary protection”.


Hathaway, supra note 28, pp. 105–106.



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