CYIL vol. 9 (2018)

VĚRA HONUSKOVÁ CYIL 9 ȍ2018Ȏ political leaders try to re-think the current model of the Common European Asylum System and to address its structural deficiencies, instead of trying to use the means that the system already offers. At the same time, they underestimate one of the crucial limits of the current system: the prevailing paradigm of permanency of protection. It is not considered at all, and thus one of the possible answers for mass influx situations, the temporary protection, is left aside. 3 John Koo in his recent article argues that temporary protection was a strategy that failed. 4 I am of a different opinion and I join Meltem Ineli-Ciger in her defence of temporary protection. 5 I consider this concept important and I see a need to consider it for future use. There are more arguments to substantiate this view; this article focuses only on one of them using a case study as the foundation for wider thoughts. The argument mainly examined here is the win-win potential of temporary protection in situations of mass influx of people in need of protection. The EU adopted a directive on temporary protection many years ago. It was never used; thus, it is not possible to make an overall analysis. However, analysis of approaches of states that have used this concept before it was addressed at the EU level might help us better understand its potential. This paper is limited to an analysis of the experience of the Czech Republic when it offered temporary refuge to people fleeing the Balkan wars during the 1990s. 6 The complex activities of the Czech Republic when it applied the temporary refuge solution seem to be a good practice to share. It may also give states and the European Union (the EU) arguments for the future use of temporary protection. Otherwise they will repeat the current scenario of shifting their responsibility for protection to other countries, which may be understandable but – in case of large numbers of people in need – not sustainable. 7 Not only would these states show a complete lack of solidarity, 8 but the ability of third states to offer protection to a large number of people without falling into civil wars might also be limited. The context of the Czech approach towards refugees The Czech Republic (the CR) is bound by a wide range of international legal commitments on the international and regional levels. Besides being party to the Refugee Convention and its Protocol and various human rights instruments, the CR is a member state of the European 3 A mass influx means an arrival of a large number of forced migrants, a non-standard situation which might require other solution than the standard ones. More on a definition in e.g. DURIEUX, J.-F., McADAM, J, Non-Refoulement Through Time: The Case for a Derogation Clause to the Refugee Convention in Mass Influx Emergencies. In BAYEFSKY, A.F. (ed.) Human Rights and Refugees, Internally Displaced Persons and Migrant Workers , Brill/Nijhoff, 2006, p. 212. 4 KOO, J., Mass Influxes and Protection in Europe: A Reflection on a Temporary Episode of an Enduring Problem. EJML 20 (2018), pp. 157-181. 5 INELI-CIGER, M. Time to Activate the Temporary Protection Directive. EJML 18(2016), pp. 1-33. 6 A deeper analysis of the current Czech approach is being prepared by the above-mentioned research group. 7 The EU states conduct an asylum (international protection) procedure which results in either granting a status or refusing protection. But there is a possibility to choose a different approach, to send a person to another country where there will be no risk of non-refoulement. That concept is formalized in the EU law as the concept of a safe third country and first country of asylum. That choice was basically made when the EU concluded the statement with Turkey in 2016. For more information see the website of the European Council, the press release EUTurkey statement, online at http://www.consilium.europa.eu/en/press/press-releases/2016/03/18/eu-turkey- statement/ [accessed 10 April 2018]. 8 The author is aware of the fact that the Czech Republic did not show solidarity in case of relocation quotas, the arguments which are used in a public debate will be analysed in a different article which is being prepared. 2.

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