The time trap in international protection: the misplaced notion of "imminence"

• Pages: 273-328
• Date: 01 October 2024
• Published date: 01 October 2024
• Author: Michelle Foster,Jane McAdam,Helene Lambert
• Subject Matter: Derecho Internacional

THE TIME TRAP IN INTERNATIONAL PROTECTION:

THE MISPLACED NOTION OF “IMMINENCE”

MICHELLE FOSTER*, JANE MCADAM†, AND HE

´LE

`NE LAMBERT‡

ABSTRACT

In refugee law, it is widely accepted that a person may qualify for interna-

tional protection even if they have less than a f‌ifty percent chance of being perse-

cuted. However, there has been a creeping trend for decision-makers to use

“imminence,” in the sense of time, as a factor in assessing the plausibility of

such claims. This Article begins by surveying the elusive and incoherent notion

of “imminence” in international law, including in self-defense, peacekeeping,

international environmental law, and international human rights law. This

analysis provides important context for the next part of the Article, which

explores how imminence has been used in two illustrative contexts: protection

from the (future) impacts of disasters and climate change and protection of chil-

dren from anticipated harm. The Article concludes that “imminence” of harm,

in a temporal sense, should never be a requirement for international protection.

I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 274

II. IMMINENCE IN DIVERSE INTERNATIONAL LAW CONTEXTS . . . . . . . . 277

A. Self-defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 278

B. Peacekeeping and the Protection of Civilians . . . . . . . . . . . . 280

C. International Environmental Law. . . . . . . . . . . . . . . . . . . 282

D. Positive Obligations Under Human Rights Law: The Duty to

Prevent Violations of the Right to Life. . . . . . . . . . . . . . . . . 283

E. Procedural Issues in International Human Rights Law:

Imminence in Admissibility Decisions/Standing . . . . . . . . . 288

* LLB, BCom (Hons) (UNSW), LLM, SJD (Michigan); Dean of the Melbourne Law School

and William Hearn Professor of Law, The University of Melbourne (Australia); ORCID iD: 0000-

0002-4381-9484. V

C 2025, Michelle Foster, Jane McAdam, and He´le`ne Lambert.

† BA (Hons), LLB (Hons) (Sydney), DPhil (Oxford); Scientia Professor and Director of the

Evacuations Research Hub, Andrew & Renata Kaldor Centre for International Refugee Law,

Faculty of Law & Justice, UNSW Sydney (Australia); ORCID iD: 0000-0002-3999-7843. This Article

was produced under the auspices of an Australian Research Council (ARC) Discovery Grant on

“The Concept of ‘Imminence’ in the International Protection of Refugees,” DP160100079, and

we acknowledge the generous support of the ARC. We are grateful to Ashley Blanch for assistance

with style guiding.

‡ Maıˆtrise (Droit Public) (Strasbourg), PhD (Exeter); Professor and Director, Peter McMullin

Centre on Statelessness, Melbourne Law School, The University of Melbourne (Australia);

ORCID iD: 0000-0003-1456-6219.

273

F. Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 290

III. IMMINENCE IN THE INTERNATIONAL PROTECTION CONTEXT . . . . . . 291

A. Climate Change and Disasters. . . . . . . . . . . . . . . . . . . . . . 292

1. Past or Ongoing Harm . . . . . . . . . . . . . . . . . . . . . 293

2. Imminence as Timing of Harm: Future Risk. . . . . 298

3. Timeframes and Mitigation of the Risk of Harm. . . 304

B. Protecting Children from Climate-related Harm . . . . . . . . . . 310

1. Children and Future Harm in International

Protection: General Trends. . . . . . . . . . . . . . . . . . 311

2. The Protection of “Future Generations” from

Climate-related Harm . . . . . . . . . . . . . . . . . . . . . . 317

3. “Climate Anxiety” and Psychological Harm: A New

Frontier in Refugee Protection? . . . . . . . . . . . . . . 321

IV. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 326

I. INTRODUCTION

In refugee law, it is widely accepted that a person may qualify for pro-

tection even if they have less than a f‌ifty percent chance of being perse-

cuted.

1

The “well-founded fear” test in refugee law and the parallel

“real risk” test in human rights law recognize that the appropriate

standard is a “real chance” of persecution or other serious harm.

2

The

risk of harm must not be too remote, in the sense that it is “real” and not

far-fetched or fanciful, in light of the applicant’s individual circumstances.

3

U.N. HIGH COMM’R FOR REFUGEES [UNHCR], UNHCR STATEMENT ON SUBSIDIARY

PROTECTION UNDER THE EC QUALIFICATION DIRECTIVE FOR PEOPLE THREATENED BY INDISCRIMINATE

VIOLENCE (Jan. 2008), https://www.unhcr.org/us/media/unhcr-statement-subsidiary-protection-

under-ec-qualif‌ication-directive-people-threatened.

Remoteness thus relates to plausibility rather than temporal considera-

tions, even though they may, too, be implicated. As Guy S. Goodwin-Gill

and Jane McAdam explain,

The question of the likelihood of persecution is in practice

inseparable from the personal circumstances of the individual

considered in light of the general situation prevailing in the

country of origin. Likelihood may vary over time and space,

depending, for example, on f‌luctuations in conf‌licts, or on the

physical proximity of individuals to particular localities, and it

1. Chan v Minister for Immigr & Ethnic Affs (1989) 169 CLR 379, 429 (Austl.) (opinion of

McHugh J.) (citing INS v. Cardoza-Fonseca, 480 U.S. 421 (1987)); Refugee Appeal No. 71404/99

[1999] NZRSAA at [26-27] (N.Z.).

2. JAMES C. HATHAWAY & MICHELLE FOSTER, THE LAW OF REFUGEE STATUS 115 (2d ed. 2014).

3.

GEORGETOWN JOURNAL OF INTERNATIONAL LAW

274 [Vol. 56

may be tempting to dismiss a recognized existing risk as none-

theless “too remote.” The Convention [Relating to the Status

of Refugees] question is whether the fear is well-founded, and

that is the context in which remoteness should be considered.

The temporal dimension is not a separate issue, but central to the assess-

ment; a judgement is called for, which alternative terminology,

such as “imminence,” rarely clarif‌ies and frequently distorts.

4

However, there has been a creeping, albeit inconsistent, trend for de-

cision-makers in some contexts to use “time” as an explicit and separate

factor in assessing the plausibility of a claim and even the credibility of

an applicant.

5

This Article represents the culmination of a multi-year

research project that examined how notions of time shape international

protection claims

6

—in particular, the immediacy or “imminence” of risk.

The inquiry was sparked by our observation that a poorly articulated,

inconsistently applied, and little understood notion of imminence was

inappropriately being applied in some protection cases (such as fear of

return to the anticipated impacts of climate change) to limit states’ non-

refoulement obligations under international refugee law and international

human rights law—that is, the obligations not to remove persons to any

place where they face a real risk of persecution or other serious harm.

7

As

part of this analysis, we sought to better understand the role of “immi-

nence” in international law more generally to see whether this could—

and should—shape the development of international protection for

people on the move.

This Article synthesizes our research f‌indings.

8

It proceeds in two

parts. First, it surveys (in Part II) how “imminence” is understood in

4. GUY S. GOODWIN-GILL & JANE MCADAM, THE REFUGEE IN INTERNATIONAL LAW 619 (4th ed.

2021) (emphasis added).

5. Examples of this phenomenon are discussed in Adrienne Anderson, Michelle Foster, He´le`ne

Lambert, & Jane McAdam, Imminence in Refugee and Human Rights Law: A Misplaced Notion for International

Protection, 68 INT’L & COMPAR. L. Q. 111, 123-135 (2019) [hereinafter Anderson et al., 2019].

6. By “international protection claims,” we mean cases where the principle of non-refoulement is

invoked to preclude removal. On time, see Jean-Franc¸ois Durieux, Protection Where?—or When? First

Asylum, Def‌lection Policies and the Signif‌icance of Time, 21 INT’L J. REFUGEE L. 75, 75 (2009) (“[T]emporal

connotations pervade the regime’s norms and processes, from the concept of emergency through

temporary protection; f‌irst asylum; cessation of status; etc., to durable solutions.”).

7. The principle of non-refoulement is the cornerstone of the international protection regime.

See, e.g., Convention Relating to the Status of Refugees art. 33, July 28, 1951, 189 U.N.T.S. 137

[hereinafter Refugee Convention]; International Covenant on Civil and Political Rights arts. 6-7,

Dec. 16, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR].

8. See Anderson et al., 2019, supra note 5; Adrienne Anderson, Michelle Foster, He´le`ne Lambert, &

Jane McAdam, A Well-Founded Fear of Being Persecuted ... But When?, 42 SYDNEY L. REV. 155 (2020)

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