© 2003 by Oxford University Press
Non-State Actors and the Definition of a Refugee in the United Kingdom: Protection, Accountability or Culpability?
1 City University, London
This paper considers that the degree to which protection is afforded by the 1951 Convention on the Status of Refugees (‘the Convention’) to victims of persecution by non-State actors is controversial. There are two main approaches taken in such cases: the ‘internal protection’ theory and the ‘accountability’ theory. In the United Kingdom, the general position taken by the House of Lords is that UK law adopts a ‘protection’ approach to non-State persecution. In fact, however, it is argued that this is not the case. Neither, however, does UK law endorse the accountability theory. Rather UK law now adopts an approach to non-State persecution based upon a form of State culpability. This is in truth a significant divergence from the traditional understanding of the protection theory. Furthermore, it is contended that subsequent decisions in the Court of Appeal have begun to extend the notion of culpability to cases involving State persecution. In so doing, the Convention has been rendered both less coherent and less effective as a humanitarian instrument.
The paper also considers the possible rationale underlying the adoption of a culpability approach by the House of Lords. Whilst there may have been practical policy concerns about reducing refugee numbers, it is suggested that their Lordships were also influenced by apparent parallels with the international legal concept of State responsibility. The House of Lords have adopted a position such that an applicant must demonstrate that there will be a deliberate or culpable failure in the duty of protection that they are entitled to expect from their home State. This is linked to the ruling by the House that a principle of ‘surrogacy’ underlies the Convention. In order to claim international surrogate protection, the individual must show that there will be a breach of a duty owed to him by his State. I consider this idea generally and in relation to the particular case of State responsibility under the European Convention on Human Rights. I conclude that a State responsibility approach is not appropriate in the context of the Refugee Convention.
Finally, it is noted that the problem the House of Lords faced in these cases illustrates inherent linguistic ambiguity as regards the concept of ‘protection’ within the refugee definition contained in Article 1A(2). In particular, the requirement that an applicant be ‘unable or unwilling’ to avail themselves of their home State's protection is subjected to analysis. The paper concludes that there is no entirely satisfactory interpretation of the ‘protection’ limb of the Convention. The approach which is most convincing is that which looks to external diplomatic protection. Internal protection should not form a distinct test in the refugee inquiry, but should rather be subsumed within the test of well-founded fear for Convention reasons.