analysis finally addressing the key inconsistencies and ambiguities in state practice
on 1D. El Kott is a sea change for the European approach to determining Palestinian
asylum claims, but much remains to be done to ensure state consistency and
compliance with both the language of the ECJ’s decision and the main purpose of
Article 1D: ensuring continuity of assistance and protection to Palestinian refugees
until the durable solution of Resolution 194, Para. 11 is implemented for all
Palestinians.
It is in this context that the revised edition of the BADIL Handbook plays a
critical role. From the original 23 countries profiled in the first edition, the authors
and contributors of the Handbook have expanded the legal mapping to 30 countries,
covering Europe, the Americas, Africa and Oceania. Although the data on Palestinian
refugees and asylum seekers and jurisprudence applying the Refugee Convention
are more complete for some countries than others, the profiles provide substantial
detailed information on how Palestinian refugee claims are treated in practice. The
preliminary data available from caselaw post-El Kott, however, reflects the sustained
effort practitioners and Palestinian legal experts must make to ensure adherence to
the language and purpose of both the ECJ decision and Article 1D. Already there are
inconsistencies in interpretation and application of El Kott and between UNHCR’s
interpretation and the ECJ. As noted later in the Handbook, the El Kott decision has
brought European countries’ jurisprudence more in line with UNHCR’s most recent
interpretation of 1D in its 2013 Note. Even countries outside the EU have been
applying the criteria found in UNHCR’s Note and El Kott to interpret Palestinian
claims under 1D.
As the Handbook concludes at the end of the mapping of national practice, there
remains great inconsistency in domestic jurisprudence: there are at least 11 different
analyses apparent in the different practices adopted by the countries surveyed. The
issue is not simply one of harmonizing state practice: there remains a significant
difference in BADIL’s interpretation based on expert scholarship and UNHCR
and the ECJ approach to 1D. The main difference is in the assessment of what is
meant by ‘protection’ and ‘assistance’ in the two sentences of Article 1D, and when
such ‘protection and assistance’ has ceased such that Palestinian refugees no longer
benefit from the special regime established for them. The key role of the UNCCP
and its termination has not been adequately considered by either UNHCR or any
judicial authority with regard to what international protection obligations are owed
Palestinian refugees. The Handbook aims to parse out these ambiguities and point
out the errors in existing interpretations and state practice. Until this issue is properly
analyzed and corrected, Palestinian refugees will continue to receive lesser protection
than they were guaranteed by the international community in the critical period of
1948-1951 when the instruments designed to ensure continuity of protection for
them were debated and drafted.
The Handbook has five chapters. The first chapter gives an overview of the
historical and legal underpinnings of the Palestinian refugee problem. Chapter Two
discusses the legal and institutional framework established by the United Nations
Introduction
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