New Directions in Article 1D Jurisprudence: Greater Barriers for Palestinian Refugees Seeking the Benefits of the Refugee Convention

Abstract

This chapter investigates new issues that have arisen in relation to article 1D of the Convention relating to the Status of Refugees (Refugee Convention), resulting from decisions by the Court of Justice of the European Union (CJEU) and New Zealand Immigration and Protection Tribunal (NZIPT). These judgments break away from earlier article 1D jurisprudence but there has been little analysis of the alternative approaches adopted. In theory, these precedents provide greater opportunities for Palestinian refugees to obtain the benefits of the Refugee Convention but in fact threaten the principle of continuity of international protection for Palestinian refugees. This is because the judgments adopt a skewed and narrow understanding of the meaning of ‘protection or assistance’ in article 1D and impose an evidentiary paradox by necessitating that Palestinian refugees prove that their decision to flee was involuntary. Further, the CJEU’s approach favours those who have heroic or intrepid narratives and this can serve to disadvantage Palestinian women and girls. Consequently, these decisions create additional and often-insurmountable barriers to Palestinian refugees seeking the benefits of the Refugee Convention not supported by article 1D’s ordinary meaning or the Refugee Convention’s object and purpose.

Keywords: Refugees, Convention relating to the Status of Refugees, Palestine