Protection of Refugees by Their Country of Origin

Abstract

Forty years after the Second World War, the international refugee crisis shows few signs of abating. Millions of persons continue to flee their states of nationality in search of safe havens, and the underlying conflicts in their home states that caused their flight often lack any hope of resolution. States of asylum are now realizing that their refugees may become long-term visitors. The refugees, for their part, fear their states of nationality and seek protection from their new home. International refugee law has proved slow to deal with the conflicts governments face as exiled citizens, still nominally "protected" by their home state, seek to adjust to their state of asylum. Refugee law must clarify the role that the state of nationality should play once a refugee has fled it. This Article proposes a norm of international refugee law wherein the state of origin, by breaking its ties with a refugee, loses any right to "protect" or act on behalf of the refugee, until such time as the refugee willingly returns to that state. Part I offers a detailed definition and explanation of the concept of protection and the variety of activities it is often said to entail. Part II describes the position of the refugee as the quintessentially unprotected person. Part III outlines the role that protection plays in international law. It analyzes the interaction between nationality and protection and discusses the right of a state to protect its nationals both at home and abroad. Part IV looks back at the evolving notions of protection, emphasizing the shift from protection based upon residence to protection based upon formal requirements of nationality. The focus of the Article, the attempt by the state of nationality to assert its power over the refugee in his new residence, stems directly from the changing view of protection. Part V thus offers a new theory, emphasizing the irrelevance of a refugees's official nationality and proposing a legal ban on any protective measures by the state of origin.