Non-State actors in control of territory as 'actors of protection' in international refugee law

This article examines the concept of non-state “actors of protection” in international refugee law. This concept breaks with traditional State-centric readings of international law, as it connotes that a non-state actor may offer “protection” against persecution, comparable to that normally offered by the State. Domestic courts have increasingly made use of the concept as a justification for withholding refugee status from asylum seekers fleeing areas torn by civil conflict. What is more, the concept has found its way into EU asylum law, and is now enshrined in article 7(1) of the Qualification Directive (recast). Following an analysis of relevant case-law from a number of jurisdictions, it is argued that domestic courts look to two key factors before pronouncing whether a non-state actor is in the position to offer “protection”. On the one hand, courts assess whether the nonstate actor operates in collaboration or with the consent of the territorial State. On the other hand, they routinely speak to the functions exercised by the nonstate actor. The paper suggests that the two factors should be applied concurrently as a safeguard against arbitrary refusals of asylum applications. Finally, it is argued that the classification of widely varying entities under the heading of “non-state actors” is analytically problematic. It results in an assimilation of entities ranging from territorial administrations and peace enforcement missions to warring clans, while potentially it obscures the legal links these entities may have with the territorial State.