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10 Non-Refoulement through Time: the Case for a Derogation Clause to the Refugee Convention in Mass Influx Emergencies

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Chapter Summary

Fears that a derogation regime will water down Convention protection do not hold much weight when attention is focused on current practice. Presently, the bulk Convention guarantees are simply ignored in situations of mass influx-not just diluted but abandoned altogether. Setting aside the Convention in mass influx situations has damaging consequences for refugees, host States, UNHCR and international protection regime as a whole. UNHCR faces serious difficulties in performing its function of providing international protection in an environment of loose and ever-changing legal parameters. Incorporating a derogation clause in architecture of the Convention is one way of addressing practical gaps which arise in mass influx emergencies. The aim is to ensure that any derogation occurs within a strictly regulated regime and for a specified period of time. In this way, non-refoulement through time would shift from protection as admission alone, to progressive acquisition of rights guaranteed to Convention refugees.

Keywords: derogation clause; international protection regime; mass influx emergencies; non-refoulement; refugee convention; UNHCR



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