A presentation by Jane McAdam, Professor and Director of the Andrew & Renata Kaldor Centre for International Refugee Law at University of New South Wales and Michelle Foster, Professor and Director of the Peter McMullin Centre on Statelessness at Melbourne Law School. This event is part of the Fundamental Rights Research Colloquium under the cluster "Human Rights in the Climate Crisis" hosted by the Centre for Fundamental Rights.
In refugee law, it is widely accepted that a person may qualify for protection even if they have less than a 50 per cent chance of being persecuted. The ‘well-founded fear’ test in refugee law, and the parallel ‘real risk’ test in human rights law, recognizes that the appropriate standard is a ‘real chance’ of persecution or other serious harm. 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. Remoteness thus relates to plausibility rather than temporal considerations, even though they may, too, be implicated.
However, there has been a creeping, albeit inconsistent, trend for decision-makers in some contexts to use ‘time’ as a factor in assessing the plausibility of a claim, and even the credibility of an applicant. This paper represents the culmination of a multi-year research project that examined how notions of time shape international protection claims—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.
This paper synthesizes our research findings. It proceeds in two parts. First, it surveys how ‘imminence’ is understood in different areas of international law, such as self-defence, peacekeeping, international environmental law, and in procedural contexts such as the admissibility of claims before treaty bodies. It reveals how elusive the term is: it lacks coherence, is used descriptively rather than analytically, and at times even encompasses notions that go far beyond its ‘ordinary meaning’. The term eludes common definition and exemplifies the problem of fragmentation in international law.
This analysis provides important context for the second part of paper, which explores how different meanings of imminence (temporal and non-temporal) have been used in two illustrative contexts: protection from the (future) impacts of disasters and climate change, and protection of children from anticipated future harm. The paper shows how decision-makers are increasingly (mis)using ‘imminence’ to deny protection to people fearing future harm. Even though reasonable speculation about future events is a standard element of refugee status determination, uncertainty about how the impacts of climate change will be felt in particular contexts—and experienced by particular individuals—has arguably been elevated in climate cases such that protection has been denied because that harm is not yet ‘imminent’ and other factors could intervene to mitigate it. The absence of an agreed meaning of imminence in international law more generally only exacerbates the problem of its incoherent interpretation and application in these more specific contexts.
Jane McAdam AO is Scientia Professor of Law and Director of the Andrew & Renata Kaldor Centre for International Refugee Law at UNSW. She is an Australian Research Council Laureate Fellow, a Fellow of the Academy of the Social Sciences in Australia, a Fellow of the Australian Academy of Law, a Research Associate at Oxford University’s Refugee Studies Centre, an Associated Senior Fellow at the Fridtjof Nansen Institute in Norway, and a Senior Research Associate of the Refugee Law Initiative in London. She was a non-resident Senior Fellow in Foreign Policy at The Brookings Institution, Washington DC from 2012–16 and a Visiting Professor at Harvard Law School in fall 2019. In 2021, Professor McAdam was appointed an Officer of the Order of Australia (AO) 'for distinguished service to international refugee law, particularly to climate change and the displacement of people'.
Michelle Foster is a Professor and Director of the Peter McMullin Centre on Statelessness at Melbourne Law School. She is an elected Fellow of the Academy of Social Sciences of Australia and a Fellow of the Australian Academy of Law, a Research Associate at Oxford University’s Refugee Studies Centre and a Senior Research Associate of the Refugee Law Initiative at the University of London. She has published widely in the field of international refugee law, human rights and statelessness, and is Editor in Chief (with Laura van Waas) of the Statelessness and Citizenship Review, an Advisory Board Member of the Melbourne Journal of International Law and an Associate Member of the International Association of Refugee and Migration Law Judges.
Prior registration is required. Registered attendees will receive the dial-in details as well as a draft paper, on which the presentation is based, via e-mail prior to the event.
