Protecting human rights defenders at risk: asylum and temporary international relocation

Abstract

The response of the international community and civil society to human rights defenders at risk has thus far failed to take adequate account of the international refugee regime. The refugee regime can offer a meaningful remedy to human rights defenders at risk. More specifically, human rights defenders at risk seeking asylum abroad can qualify as refugees and receive meaningful protection from the international refugee regime. In a more organised manner, temporary international relocation initiatives (TIRIs) for human rights defenders at risk provide good examples of the emerging regime of protection for human rights defenders intersecting with the international refugee regime. Human rights defenders at risk within and those who manage TIRIs frequently grapple with issues concerning asylum – and the fundamental tension between TIRIs and asylum seeking. However, TIRIs also reveal a set of similarities between the two regimes: their shared recognition of the failure of states to fulfil their human rights obligations; their shared focus on (and contestation) of risk; a similarly shared focus (and contestation) of who is and within and outside each regime; and similar attempts to translate political sympathy into protection. These similarities can assist in charting a more productive, and explicit, engagement between the two regimes in the future that provides for better protection for human rights defenders at risk.

Keywords:

• human rights defender
• risk
• refugee
• UNHCR
• international protection
• asylum
• temporary international relocation initiatives

Acknowledgements

A previous version of this article was presented at a workshop on human rights defenders at risk hosted by CAHR, Amnesty International UK, and the Human Rights and Social Justice Institute. The author wishes to thank the organisers and participants in that workshop for their comments and suggestions that have improved this article, including in particular James Savage, Alice Nah and Lars Waldorf. He also wishes to thank the reviewer of this article [Lutz Oette] whose suggestions concerning its restructuring have produced a more focused article. Of course, any errors remain the responsibility of the author.

Disclosure statement

No potential conflict of interest was reported by the author.

Notes on contributor

Martin Jones is Lecturer in International Human Rights Law at the Centre for Applied Human Rights of the University of York.

ORCID

Martin Jones http://orcid.org/0000-0003-3786-3259

Notes

1. Nelson Mandela, ‘Address at the Conference of the Pan-African Freedom Movement of East and Central Africa' (Addis Ababa, 1962). Mandela's speech was his first international public statement and arguably his first as a refugee.

2. ‘Report of the Special Rapporteur on Human Rights Defenders: Situation of Human Rights Defenders', UN Document Number A/69/259 (14 August 2014).

3. This range of current tactics can be mapped to the traditional taxonomy of tactics set out before the coining of the term ‘human rights defender': Lauri Wiseberg, ‘Protecting Human Rights Activists and NGOs: What More Can Be Done?’, Human Rights Quarterly 13, no. 4 (1991): 525–44.

4. The use of the term ‘remedy' to describe what is offered by the international refugee regime underscores the gap between the two regimes. The term has become a legal term of art in international human rights law, typically including access to justice; reparation for harm suffered; and, access to information (see for example, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, UN General Assembly Resolution Number 60/147 (16 December 2005)). In contrast, the refugee regime has historically used the term in a more pragmatic way: ‘[Refugee law] is the only international human rights remedy which can be engaged directly and immediately by at-risk persons themselves. Most important of all, it is a fundamentally practical remedy which can be reconciled to the most basic interests of states.' (James Hathaway, ‘Why Refugee Law Still Matters', Melbourne Journal of International Law 8 (2007): 89 at 103. See also Justice A.M. North and Nehal Bhuta ‘The Future of Protection – The Role of the Judge’, Georgetown Immigration Law Journal 15 (2001): 479 at 486.

5. These initiatives have been known by a variety of names in the academic and policy literature, including ‘protective fellowship schemes’, ‘sanctuary' initiatives, and programmes of ‘international relocation'. The current term is chosen because it highlights the organised, time-limited and international movement of human rights defenders at risk.

6. Regime is understood as the explicit and implicit ‘principles, norms, rules, and decision-making procedures around which actor expectations converge’, Stephen D. Krasner, ‘Structural Causes and Consequences: Regimes as Intervening Variables', in International Regimes, ed. Stephen D. Krasner (Ithaca, NY: Cornell University Press, 1983), 1. This approach is consistent with the definition adopted by Karen Bennett et al. in ‘Critical Perspectives on the Security and Protection of Human Rights Defenders', The International Journal of Human Rights 19, no. 7 (2015): 883–895, (this issue).

7. The idea that these treaties are ‘human rights treaties’ is of recent origin. As Tom Clark and Francois Crepeau wrote in 1999, ‘[f]or too long, the [Refugee Convention] has been treated as a piece of international legislation that could only be interpreted according to its own internal logic and objectives in isolation from international human rights law’. ‘Mainstreaming Refugee Rights: The 1951 Refugee Convention and International Human Rights Law’, Netherlands Quarterly of Human Rights 17, no. 4 (1999): 389–410. For a more recent articulation of the Refugee Convention as being part of broader international human rights law see Vincent Chetail, ‘Are Refugee Rights Human Rights? An Unorthodox Questioning of the Relations between Refugee Law and Human Rights Law’, in Human Rights and Immigration, ed. Ruth Rubio-Marín (Oxford: Oxford University Press, 2014); and Colin Harvey, ‘Time for Reform? Refugees, Asylum-seekers, and Protection Under International Human Rights Law’, Refugee Survey Quarterly 34, no. 1 (2015): 43–60.

8. 89 U.N.T.S. 150, entered into force 22 April 1954 [the ‘Refugee Convention']

9. 606 U.N.T.S. 267, entered into force 4 October 1967 [the ‘Refugee Protocol']. The Refugee Protocol effectively removed the temporal (pre-1951 refugees) and geographic (European only) limitations on the definition of refugee allowed under the Refugee Convention.

10. One hundred and forty seven states are party to either the Refugee Convention or the Refugee Protocol.

11. Gil Loescher, The UNHCR and World Politics: A Perilous Path (Oxford: Oxford University Press, 2001), 7.

12. Erika Feller, ‘Evolution of the International Refugee Protection Regime’, Washington University Journal of Law and Policy 5 (2001): 129; Katie Long, ‘In Search of Sanctuary: Border Closures, “Safe” Zones and Refugee Protection’, Journal of Refugee Studies 26, no. 3 (2013): 458–76.

13. UNOHCHR, ‘Human Rights Defenders: Protecting the Right to Defend Human Rights’ (Fact Sheet 29, n.d.), 2 (n. 2).

14. For an overview of the negotiation of the declaration see ‘Breaking the Walls of Silence: Issues at Stake in the Draft Declaration on Human Rights Defenders’ (Amnesty International, IOR 40/07/95, August 1995); and Michel Forst, ‘Background to the Declaration on Human Rights Defenders: Human Rights Defenders’ (Amnesty International, n.d.).

15. The UNDHR (and its 50th anniversary) were explicitly referenced in the UN General Assembly resolution that accompanied the Declaration on Human Rights Defenders and in a preambular paragraphs of the Declaration on Human Rights Defenders itself.

16. The negotiation of the declaration began with the formation of an open-ended working group to negotiate a text by the UN Human Rights Commission in 1984 (Resolution 116/1984 of 16 March 1984).

17. A similar argument could be made about the emerging regime of protection of international criminal law. See for example Markus Eikel, ‘Witness Protection Measures at the International Criminal Court: Legal Framework and Emerging Practice’, Criminal Law Forum 23, no. 1–3 (2012): 97–133.

18. For example, none of the ‘country information and guidance reports’ published in UK Visas and Immigration in 2014 (used by its officials to make decisions in asylum and human rights applications) identified ‘human rights defender' as a discrete actor or category of risk.

19. The only determination of refugee status based explicitly on being a ‘human rights defender' found in a search of reported decisions in Australia, Canada, the United Kingdom and the United States, was the decision of the Refugee Appeal Division of the Canadian Immigration and Refugee Board in MB4-02097 [2014] CanLII 64251 (Maria De Andrade, 9 September 2014).

20. A notable exception is discussed in Katie McQuaid, ‘“We Raise Up the Voice of the Voiceless”: Voice, Rights and Resistance amongst Congolese Human Rights Defenders in Uganda’, Refuge (forthcoming). A historic reason for this is the very recent embrace of the language of rights by those within the refugee regime, whose actors have traditionally understood their endeavour as humanitarian in nature. Perhaps the relative novelty of the category of ‘human rights defender' also reduces the likelihood that activists for refugees will self-identify as and rely in advocacy upon being human rights defenders. See Guglielmo Verdirame and Barbara Harrell-Bond, Rights in Exile: Janus-Faced Humanitarianism (Oxford: Berghahn, 2005); and Barbara Harrell-Bond, ‘Can Humanitarian Work with Refugees be Humane?’, Human Rights Quarterly 51 (2002): 51–85.

21. Lauri Wiseberg, ‘Protecting Human Rights Activists and NGOs: What More Can Be Done?’, Human Rights Quarterly 13, no. 4 (1991): 525–44.

22. Alice M. Nah, Karen Bennett, Danna Ingleton, and James Savage, ‘A Research Agenda for the Protection of Human Rights Defenders', Journal of Human Rights Practice 5, no. 3 (2013): 401–20 at 402.

23. A good example of this is the first report of the current Special Rapporteur which highlighted the need for greater coordination and cooperation (as quoted in the second epigraph) but which focused in its concrete examples exclusively on ‘[s]trengthening cooperation with other [Human Rights Council] mandate holders’.

24. Nah et al., ‘A Research Agenda for the Protection of Human Rights Defenders', 401. More generally see Journal of Human Rights Practice 5, no. 3 (2013). Notwithstanding its lack of mention in the publication, the report of the practitioner-academic workshop at which the papers were discussed lists the following question as part of its suggested research agenda: ‘What is the effectiveness of protection mechanisms, instruments and methods such as … refugee protection?' Centre for Applied Human Rights, A Research Agenda on Human Rights Defenders at Risk (3 February 2012), 4.

25. The exception to this proposition is the recent OSCE (Organization for Security and Co-operation in Europe) Guidelines on the Protection of Human Rights Defenders (Warsaw: OSCE, 2014), which repeatedly mentions the particular risks facing human rights defenders who are refugees or who work on refugee issues.

26. The analysis in this section owes a great debt to the analysis within the recently impressively updated edition of James Hathaway's very influential Law of Refugee Status (Toronto: Butterworths, 1991); James Hathaway and Michelle Foster, The Law of Refugee Status, 2nd ed. (Cambridge: Cambridge University Press, 2014).

27. It is beyond the scope of this article to conduct a systematic analysis, especially given that notwithstanding the convergence of interpretations of the term refugee there remain interpretative lacuna that complicate the analysis. However, the prima facie analysis conducted here can both suggest a provisional conclusion as well as highlight areas for future, more detailed, analysis.

28. While the Statute of the UNHCR defines ‘refugee' using slightly different terms, state and UNHCR practice is to treat differences as historical anomalies and to interpret the earlier definition of refugee in the Statute as identical to the definition in the Refugee Convention. Regional refugee instruments have also expanded the core definition of refugee. The beneficiaries of these ‘expanded definitions’ vary from region to region and the requirements of these new definitions are generally seen as more lenient than those found in the Refugee Convention.

29. The definition of refugee also applies to stateless persons. In the case of stateless persons, the country of reference is her ‘country of former habitual residence' and there is no requirement to establish that the state is unable or unwilling to offer protection (the fourth element of the definition outlined).

30. Hathaway and Foster, The Law of Refugee Status, 74. See also UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, UN Doc. HCR/IP/4/Eng/REV.1 (1992), at ¶ 94 et seq; Minister for Immigration and Citizenship v. SZJGV (2009) 238 CLR 642 (Australian High Court, 30 September 2009); Win Win v. Canada (Minister for Citizenship and Immigration) [2008] FC 398 (Canadian Federal Court, 28 March 2008).

31. The government of the United Kingdom famously stationed immigration officers at the airport in Prague to prevent Czech nationals of Roma descent from boarding flights to the United Kingdom. See Regina v. Immigration Officer at Prague Airport and Another, Ex parte European Roma Rights Centre and Others, [2004] UKHL 55 (United Kingdom House of Lords, 9 December 2004). For further information about the broader trend towards restricting access to asylum (including its relationship to the securitisation of borders), see Idil Atak and François Crépeau, ‘The Securitization of Asylum and Human Rights in Canada and the European Union’, in Contemporary Issues in Refugee Law, ed. Satvinder Singh Juss and Colin Harvey (London: Elgar Publishing, 2013): 227–257.

32. The jurisprudence and scholarship has generally rejected attempts to link the two components (for example, to allow a lower level of risk to suffice when the gravity of the feared persecution is greater): ‘We were referred to no authority nor any writing on the subject which indicates that the gravity of the risk is to be considered in the balance when determining whether the asylum seeker has a well-founded fear of persecution’, Puerta v. Minister for Immigration and Multicultural Affairs [2001] FCA 309 (Australian Full Federal Court, 29 March 2001), at ¶ 11.

33. The traditional refugee law analysis bifurcates the ‘well-founded fear' element into a subjective and objective component. The current analysis foregoes, for reasons of length and simplicity, explicit attention to ‘subjective fear' (which examines the state of mind of the refugee) and incorporates relevant issues that arise in the context of human rights defenders at risk into its discussion of the practical issues in the proof of the two noted elements (risk and persecution) of the objective fear. However, this approach is also consistent with recent scholarship which takes issue with the bifurcation of fear, see for example Bridgette A. Carr, ‘We Don't Need To See Them Cry: Eliminating the Subjective Apprehension Element of the Well-Founded Fear Analysis for Child Refugee Applicants’, Pepperdine Law Review 33, no. 3 (2006): 535–74; and James Hathaway and W.S. Hicks, ‘Is there a Subjective Element in the Refugee Convention's Requirement of “Well-founded Fear”?’, Michigan Journal of International Law 26 (2005): 505.

34. Chan Yee Kin v. Minister for Immigration and Ethnic Affairs 169 CLR 232 (Australian High Court, 9 December 1989).

35. Chan v. Canada [1995] 3 SCR 593 (Canadian Supreme Court, 1995).

36. R v. Secretary of State for the Home Department, Ex parte Sivakumaran [1988] AC 958 (UK House of Lords, 16 December 1987).

37. The formulation of risk in statistical terms has been decried as overly mechanistic. However, the 10% bar does provide a useful reminder that the level of risk required is well below a balance of probabilities. See INS v. Cardoza-Fonseca, (1987) 480 U.S. 421 at 440 (US Supreme Court, 9 March 1987, opinion of Justice Stevens); and Abebe v. Attorney General (2005) 432 F.3d 1037 (US Court of Appeal, 9th Circuit, 30 December 2005), at 1042.

38. In the absence of a significant and durable change in material circumstances, there will be a ‘presumption' that individuated past persecution will be repeated in the future. Whether this presumption should be treated as factual or legal is much debated, see Fenandopulle v. Minister of Citizenship and Immigration, [2005] FCA 91 (Canadian Federal Court of Appeal, 8 March 2005).

39. In this respect, the human rights documentation produced by the Special Rapporteur can be very useful to document the situation of human rights defenders, including his or her reports concerning communications, general thematic reports and reports on country visits. The contributions of human rights defenders to the UN Human Rights Council's universal periodic review may also provide evidence of the situation facing human rights defenders.

40. This phrasing was adopted in the legislation setting out the European Union's common European asylum system; it is shared by UNHCR and most common-law jurisdictions. Article 9 of Council Directive 2004/83/EC of 29 April 2004: On minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, Official Journal of the European Union L 304/12 (30 September 2004).

41. Even those rights articulated in the Declaration on Human Rights Defenders are generally also articulated in an international instrument or in customary international law. The declaration only articulates a small number of ‘new' rights (not articulated elsewhere) which are contestable due to the non-binding nature of the declaration.

42. All of these rights are protected in the Declaration on Human Rights Defenders and guaranteed by international human rights treaty and customary law.

43. None of these rights are protected in the Declaration on Human Rights Defenders though they are guaranteed by international human rights treaty and customary law.

44. A well-founded fear of persecution must be for reasons of one of the five enumerated grounds. For further discussion, see the next section.

45. Refugee law does not distinguish between civil and political rights and social and economic rights: ‘breaches of [socio-economic rights] may, in principle, be relied on to found a refugee claim as rights in themselves', in BG (Fiji), [2012] NZIPT 800091 (New Zealand Immigration and Protection Tribunal, 20 January 2012), at ¶ 90.

46. The OECD's Multilateral Convention on Mutual Administrative Assistance in Tax Matters (as amended by its Protocol) requires signatories to cooperate with respect to tax collection. The United Nations Convention against Transnational Organized Crime similarly requires states to take action against money laundering. Human rights law itself requires states to act against actions ‘aimed at the destruction of any of the rights and freedoms’.

47. UNHCR, Handbook, ¶ 56.

48. The UN Human Rights Council has called upon states ‘[t]o ensure that reporting requirements placed on individuals, groups and organs of society do not inhibit functional autonomy' ‘Protecting Human Rights Defenders’ A/HRC/RES/22/6 (12 April 2013), at ¶ 9(a).

49. The UNHCR, Handbook, ¶ 58 states: ‘there may be cases in which a person, besides fearing prosecution or punishment for a common law crime, may also have “well founded fear of persecution”'. For a discussion of whether such individuals may be excluded from protection see § 3.1.5.

50. The nature of the causal link is frequently unexamined and inconsistently articulated in the jurisprudence. See Michelle Foster, ‘Causation in Context: Interpreting the Nexus Clause in the Refugee Convention’, Michigan Journal of International Law, 23, no. 2 (2001): 265–340. See § 3.1.4 for a discussion of the failure of state protection.

51. The drafters of the Refugee Convention identified as ‘political' refugees a range of persons, all of whom would qualify as human rights defenders explicitly working on and facing threats to civil and political rights: those fleeing from revolution, diplomats thrown out of office and members of an outlawed political party. UN Doc. E/AC.7/SR.172 (12 August 1950), at 18–23; and UN Doc. E/AC.7/SR.173 (12 August 1950), at 5, quoted in Hathaway and Foster, The Law of Refugee Status, 405.

52. Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 (Canadian Supreme Court, 1993), at 746. See also RT (Zimbabwe) & Ors v. Secretary of State for the Home Department [2012] UKSC 38 (United Kingdom Supreme Court, 25 July 2012).

53. Canada (Attorney General) v. Ward at 739

54. Interpretation of the Convention Refugee Definition in the Case Law (Legal Services Unit of the Immigration and Refugee Board of Canada, Toronto, December 2010), at § 4.7.

55. Canada (Attorney General) v. Ward, at 692.

56. Kadenko v. Canada (Solicitor General) (1996), 1996 CanLII 3981 (Canadian Federal Court of Appeal, 15 October 1996).

57. Carillo v. Canada (Minister of Citizenship and Immigration) [2004] FC 944 (Canadian Federal Court, 30 June 2004). The requirement to have exhausted local avenues of protection bears a superficial resemblance to the requirement for many international human rights bodies that an individual have exhausted domestic remedies. However, the analogy is a false one in so far as a refugee will have no ongoing ability to remedy this defect and the focus of the inquiry in determining refugee status is future (not past) persecution.

58. A. v. Minister for Immigration and Multicultural Affairs (1999) 53 ALD 545 (Australian Full Federal Court, 23 February 1999). For a fuller rebuttal of the presumption of state protection see Hathaway and Foster, The Law of Refugee Status, 519 et seq.

59. Arboleda v. US Attorney General (2006) 434 F3d 1220 (United States Court of Appeals 11th circuit, 3 January 2006).

60. Januzi v. Secretary of State for the Home Department [2006] UKHL 5 (United Kingdom House of Lords, 15 February 2006).

61. The Special Rapporteur has identified the particular vulnerability of human rights defenders working in rural areas in many states.

62. For the difficulties of establishing a national protective mechanism in a federal state see Daniel Joloy, ‘Mexico's National Protection Mechanism for Human Rights Defenders: Challenges and Good Practices', Journal of Human Rights Practice 5, no. 3 (2013): 489–99.

63. National Coalition for Gay and Lesbian Equality and Another v. Minister of Justice and Others, (1998) 12 BCLR 1517 (South African Constitutional Court, 9 October 1998), at ¶ 130, quoted in UNHCR, Guidance Note on Refugee Claims Relating to Sexual Orientation and Gender Identity (21 November 2008), at ¶ 26.

64. Regional human rights treaties have expanded Article 1(F)(c) to include individuals who act contrary to the purposes and principles of regional organisations. See for example Article 1(5) of the Convention Governing the Specific Aspects of Refugee Problems in Africa.

65. Article 12 of the Declaration on Human Rights Defenders. The UN Office of the High Commissioner for Human Rights has issued guidance that ‘the actions taken by human rights defenders must be peaceful in order to comply with the Declaration on human rights defenders', Fact Sheet 29: Human Rights Defenders: Protecting the Right to Defend Human Rights (UN OHCHR, Geneva, April 2004), 10.

66. Article 19 of the Declaration on Human Rights Defenders.

67. So-called ‘refugee soldiers’ are generally excluded from refugee protection on the basis of its civilian character and their status as armed combatants under international humanitarian law.

68. There is nothing in the definition of refugee (or subsequent international practice) that excludes former members of a legitimate military force who have renounced their military activities and whose activities (individually and collectively) are within the bounds of international humanitarian law. UNHCR, Operational Guidelines on Maintaining the Civilian and Humanitarian Character of Asylum (UNHCR, September 2006), at 32 and 33.

69. Zoeger La Hoz, Carmen Maria v. M.C.I. and Contreras Magan, Miguel Luis v. M.C.I. Federal [2005] FC 762 (Canadian Federal Court, 30 May 2005).

70. Immigration and Naturalization Service v. Aguirre-Aguirre 526 U.S. 415 (United States Supreme Court, 3 May 1999).

71. Gil v. Canada (Minister of Employment and Immigration), [1995] 1 FCR 508 (Canadian Federal Court of Appeal, 21 October 1994).

72. Article 3 of the Convention Against Torture and Other Forms of Cruel, Inhuman and Degrading Treatment or Punishment offers a narrower (but unconditional) protection against refoulement to torture.

73. Expulsion is forced removal to a country where a refugee would not face persecution. The prohibition on expulsion of Article 32 is limited to refugees lawfully in a state's territory and is subject to several limitations.

74. While the International Covenant on Economic, Social and Cultural Rights famously articulates the ‘right to work' (Article 6), this right is significantly qualified by the provisions of Article 2(1) and (3): the recognition that rights can be ‘progressively realized' and that states of the Global South may refuse to extend the right to work to non-nationals (including refugees).

75. Refugees often find themselves without access to the ordinary bureaucracies of a state by virtue of their lack of (or holding of unrecognised) civil status, travel and identity documents. The Refugee Convention provides access to necessary documentation and administrative assistance in Articles 25, 27 and 28.

76. As articulated by Hathaway, the architecture of the Refugee Convention seeks to provide a growing set of rights to refugees as they ‘attach' themselves (seek to integrate into) new communities of asylum. Hathaway, The Rights of Refugees under International Law, 156 et seq.

77. There is no ‘right' to resettlement within the refugee regime and only a fraction (less than 1%) of the global population of refugees are resettled. Resettlement typically takes place from the Global South to the Global North and is both a form of ‘responsibility sharing' and a mechanism to address the needs of particularly vulnerable refugees.

78. Family reunification is not mentioned in the Refugee Convention but it was articulated as a closing (consensus) recommendation of the conference that drafted the treaty, has been since articulated in a number of resolutions of the UNHCR's Executive Committee, and has been adopted as policy by many states of asylum.

79. Almost all of the four dozen states that are not party to the Refugee Convention are located in a nearly continuous geographic swath from Lebanon through to Indonesia that includes most of the Middle East, all of the states of the Gulf of Arabia, all of the states of South Asia and most of the states of South East Asia.

80. Jaya Ramji-Nogales, Andrew I. Schoenholtz, and Philip G. Schrag, Refugee Roulette Disparities in Asylum Adjudication and Proposals for Reform (New York: NYU Press, 2011); Sean Rehaag, ‘Judicial Review of Refugee Determinations: The Luck of the Draw?’, Queen's Law Journal 38, no. 1 (2012): 1–58.

81. B.S. Chimni, ‘New Issues in Refugee Research Working Paper No. 2: From Resettlement to Involuntary Repatriation: Towards a Critical History of Durable Solutions to Refugee Problems’ (Geneva: UNHCR, May 1999).

82. Article 1(C)(4) of the Refugee Convention.

83. For example, many states issue travel documents under the Refugee Convention that preclude travel to a refugee's country of origin.

84. GHK Consultants, Mapping of Temporary Shelter Initiatives for Human Rights Defenders in Danger In and Outside the EU Report for Workshop on the Establishment of an EU Temporary Relocation Programme for Human Rights Defenders At Risk (Brussels, 16 February 2012), 20.

85. Refugee Council, ‘Between a Rock and a Hard Place: The Dilemma Facing Refused Asylum Seekers’ (Refugee Council, December 2012), 11; GHK Consultants, Mapping of Temporary Shelter Initiatives for Human Rights Defenders, 20 and 27.

86. This is based upon conversations with human rights defenders at risk who sought asylum after being part of the TIRI of the Centre for Applied Human Rights.

87. GHK Consultants, Mapping of Temporary Shelter Initiatives for Human Rights Defenders, Annexes 4 and 5.

88. This is a result of the inability of the temporary relocation abroad to sufficiently mitigate risk; very few of these programmes have been explicitly designed to provide a route for human rights defenders to access asylum.

89. For more information on the history of the council see http://www.cara1933.org/history.asp (accessed 18 May 2015).

90. In addition to CARA, the Scholar Rescue Fund dates back to 1919 and has provided temporary international protection to more than 400 scholars from more than 40 states. PEN International has a similarly lengthy history (it was founded in 1921) and has been supporting writers needing international protection since 1934 and the founding of its German-speaking Writers Abroad centre in London.

91. GHK Consultants, Mapping of Temporary Shelter Initiatives for Human Rights Defenders, 10.

92. Ibid., 20.

93. Annexes 4 and 5 of the GHK Consultants report list more than two dozen such programmes of (largely) financial support.

94. Established regional TIRIs include programmes managed by the Euro-Mediterranean Human Rights Network and the Cairo Institute for Human Rights Studies (CIHR) (in the Middle East and North Africa); East and Horn of Africa Human Rights Defender Programme (EHAHRDP) (in East Africa); Southern Africa Human Rights Defender Trust (in Southern Africa); Sonomos Defensores Programme and a new programme managed by the Consorcio Desarrollo y Justicia (in Latin America); and Forum Asia (in Asia).

95. GHK Consultants, Mapping of Temporary Shelter Initiatives for Human Rights Defenders, 57.

96. Ibid., 38.

97. The length of the temporary international relocation offered may vary considerably within this estimate. It has been estimated that there are ‘no more than a few dozen long-term [longer than six months] placements’ (see Borislav Petranov, Keeping Defenders Safe: A Call to Donor Action (New York: International Human Rights Funders Group, 2014), n. 113).

98. . Ibid., 35.

99. A notable example of such a practice is the access to refugee status provided by the 11 member cities of ICORN located in Norway. The aforementioned human rights defenders at risk relocated to Europe from Iran were also brought under the explicit understanding that they would seek (and be granted) asylum. GHK Consultants, Mapping of Temporary Shelter Initiatives for Human Rights Defenders, 18.

100. The theories of change for TIRIs have been under-articulated and under-explored; often they are presented simply as humanitarian initiatives responding to immediate threats.

101. GHK Consultants, Mapping of Temporary Shelter Initiatives for Human Rights Defenders, 10.

102. Ibid., 19.

103. Ibid., 19 et seq.

104. GHK Consultants, Mapping of Temporary Shelter Initiatives for Human Rights Defenders (at 19) suggest a correlation between length of sojourn and likelihood of seeking asylum but this link is confounded by other intervening variables (e.g. those TIRIs that provide a longer sojourn generally are designed for human rights defenders at higher risk).

105. The international refugee regime developed from the ‘minorities treaties’ that were made a condition of membership in the League of Nations for the successor states of the Austro-Hungarian and Ottoman Empires. See James Hathaway, The Rights of Refugees under International Law (Cambridge: Cambridge University Press, 2005), 81 et seq.

106. Lord Hope of Craighead in Horvath v. Secretary of State for the Home Department, ex. parte [2000] UKHL 37 (6 July 2000) referring to comments by Lord Keith of Kinkel in Reg. v. Secretary of State for the Home Department, Ex parte Sivakumaran [1988] A.C. 958, 992H-993A.

107. A female pronoun is used throughout when referring to refugees or human rights defenders simply for reasons of stylistic simplicity.

108. Article 1(A)(2) of the Refugee Convention.

109. GHK Consultants, Mapping of Temporary Shelter Initiatives for Human Rights Defenders, 1.

110. Ibid., 18.

111. Ibid., 20.

112. Jacqueline Bhabha, ‘Internationalist Gatekeepers?: The Tension Between Asylum Advocacy and Human Rights', Harvard Human Rights Journal 15 (2002): 155–82 at 158.

113. Resolution of the UN Commission on Human Rights 2000/61 (at the fourth preambular paragraph).

114. In 2008, the mandate of the (new) Special Rapporteur was amended to include, inter alia, the ‘study … [of] trends, developments and challenges’ facing human rights defenders. The Special Rapporteur has in recent years produced reports on various trends threatening human rights defenders and the current Special Rapporteur has indicated a desire to pay particular attention to the ‘most exposed group' of human rights defenders. ‘Situation of Human Rights Defenders', UN General Assembly A/69/259 (5 August 2014), at ¶ 48–54.

115. While previous Special Rapporteurs have tried to bring new groups of human rights defenders within the regime, they have generally done so by highlighting the civil and political rights violations of these groups (e.g. the extra-judicial execution of land and environmental activists).

116. The declaration repeatedly refers to individuals who are active in the ‘promotion and protection' of human rights. The only use of the term ‘defence' is in relation to the right to a legal remedy in Article 9(3)(c) wherein individuals may ‘provide professionally qualified legal assistance or other relevant advice and assistance in defending human rights and fundamental freedoms'.

117. Although the resolution is entitled ‘Human Rights Defenders’ only one of the three specific tasks assigned to the Special Representative makes explicit reference to ‘human rights defenders’ (see ¶3 of UN Commission on Human Rights Resolution 61 of 2000 on 26 April 2000). The position of the Special Representative was subsequently replaced by a Special Rapporteur (with Resolution 7/8 of 27 March 2008 the UN Human Rights Council).

118. Letter dated 18 November 1998 from the Permanent Representative of Egypt to the United Nations addressed to the President of the General Assembly, UN General Assembly document A/53/679 (18 November 1998) (a letter setting out a restrictive reading of the declaration by Egypt and 25 other states).

119. See the article by Eguren Fernández and Patel in this issue: Luis Enrique Eguren Fernández and Champa Patel, ‘Towards Developing a Critical and Ethical Approach for Better Recognising and Protecting Human Rights Defenders', The International Journal of Human Rights 19, no. 7 (2015): 896–907.

120. Hathaway, The Rights of Refugees under International Law, 1.

121. GHK Consultants, Mapping of Temporary Shelter Initiatives for Human Rights Defenders, 1.

122. Initial efforts to draft a treaty that protected the stateless as well as refugees were abandoned in part because of the social stigma of the former in post-World War II Europe.

123. For a discussion of those historically seen as undeserving (and excluded from protection under Article 1(F) of the Refugee Convention see § 3.1.5 below). A current example includes proposals in the United Kingdom to tighten asylum rules to exclude ‘extremists’. ‘New laws to target radicalization’, BBC News, 13 May 2015, http://www.bbc.co.uk/news/uk-politics-32714802 (accessed 15 May 2015).

124. James C. Hathaway, ‘Forced Migration Studies: Could We Agree Just to “Date”?’,

Journal of Refugee Studies 20, no. 3 (2007): 20.

125. The Special Rapporteur has suggested that various groups of activists should be more explicitly embraced by the regime (and that it should be more sensitive to their particular needs), including women human rights defenders; those working on socio-economic issues; those working on indigenous issues; development actors; and those working in rural communities.

126. The term ‘human rights defender' itself can be seen (and has been critiqued) as a ‘professional' label and in keeping with the broader trend towards the professionalisation of human rights practice.

127. GHK Consultants, Mapping of Temporary Shelter Initiatives for Human Rights Defenders, 24.

128. The US Department of State has also signalled its commitment to human rights defenders at risk at TIRIs through such programmes as ‘Defend the Defenders’ and its ‘Embattled NGO (Assistance) Fund'. Petranov, Keeping Defenders Safe, 31.

129. GHK Consultants, Mapping of Temporary Shelter Initiatives for Human Rights Defenders, 24.

130. Loescher, The UNHCR and World Politics, 6.

131. Malala Yousafzai was a child human rights defender from Pakistan who suffered an assassination attempt as a result of her high-profile public campaigning for access to education for girls. She and her family have been provided with medical care and refuge in the United Kingdom. In 2014, she was awarded the Nobel Peace Prize. Her situation also highlights the difficulties faced by human rights defenders who have sought asylum; attitudes to her in Pakistan are more hostile, where she has been described in the media as ‘the good native … the perfect candidate for the white man to relieve his burden and save the native’. Hamida Ghafour, ‘Malala Yousafzai: Backlash against Pakistani Teen Activist Spreads in Her Homeland' The Toronto Star, 19 June 2013, http://www.thestar.com/news/world/2013/07/19/malala_yousafzai_backlash_against_pakistani_teen_activist_spreads_in_her_homeland.html (accessed 9 May 2015).

132. Adam Hug, ‘Introduction: Shelter from the Storm?’, in Shelter from the Storm? The Asylum, Refuge and Extradition Situation Facing Activists From the Former Soviet Union in the CIS and Europe, ed. Adam Hug (London: Foreign Policy Centre, April 2014), 8.

133. Hathaway and Foster, The Law of Refugee Status, 1.