Common but Differentiated Responsibility in Climate and Genocide Cases

The search for a more equitable and legally binding responsibility distribution mechanism in global refugee protection starts with the question what responsibility states bear for the protection of refugees and other forced migrants outside of their territory. I addressed that question in the publication Allocating Responsibility for Refugee Protection to States: Actual and Potential Criteria in International (Case) Law, in which I examined potential avenues within international law. Here I discuss two of those: the operationalised international law principles of cooperation and solidarity, based on their application in climate cases; and the Responsibility to Protect (RtoP) doctrine from international humanitarian law. The distribution mechanism they both apply might be useful to establish and define extraterritorial protection obligations of states towards refugees.

Distribution of Responsibility For the Protection of Forced Migrants

Neither international refugee law nor human rights law provide a specific inter-state mechanism to distribute responsibilities for refugee protection on another basis than the general territorial principle (see Introduction blogpost). This leads to an unequal distribution of (territoriality-based) responsibility for refugee protection among states internationally. Intentional policies of states to avoid migrants coming under their jurisdiction and circumvent responsibility for refugee protection – so-called externalisation policies, i.a.of the EU and its member states — further exacerbate this imbalance. They create burden-shifting and spill-over effects, cause death at the border, and shrink legal and material protection space and quality for those in need and search of it.

Effective responses to improve responsibility-sharing arelimited to ad hoc policy initiatives and voluntary commitments by states and some very restrictedly binding regional emergency mechanisms. Beyond those very limited responses, some avenues for legal mechanisms with (re)distributive potential might be suggested from international and regional case-law, legal principles and doctrine. Even though these are no ready-made structural, a priori equitable and enforceable distribution solutions, the applied lines of reasoning include some de lege ferendaarguments for an alternative responsibility distribution that would already improve the access to and the quality of the protection of refugee rights. Two of such avenues are discussed here.

The Principles of Cooperation and Solidarity Between States in International Law.

Cooperation and solidarity are principles of general international law under the UN Regime (see e.g. Art. 1(3) UN Charter), demanding an equitable and fair sharing of burdens, without, however, being sufficiently precise to entail very specific and enforceable legal obligations (Moreno-Lax).

In international refugee law, the obligation to cooperate between states is included in the Preamble of the 1951 Refugee Status Convention, as a conditio sine qua non to find a “satisfactory solution” for the ‘problem’ of asylum. However, initiatives to operationalize this obligation, such as the Comprehensive Refugee Response Framework (CRRF) flowing from the 2016 New York Declaration and the 2018 Global Compact on Refugees (GCR) – or even UNHCR’s mandate per se – have not resulted in binding structural responsibility allocation mechanisms and only delivered limited voluntary extraterritorial commitments.

Interestingly, Article 38 of the 1951 Refugee Convention assigns the power to issue an advisory opinion in case of an interpretative dispute between states concerning the application of the Refugee Status Convention to the International Court of Justice (Skordas). Although it has not yet happened in practice, the ICJ might thus in theory be seized to adjudicate on states’ respective extraterritorial protection responsibilities under the Refugee Status Convention in light of the principles of internationalcooperation and mutual assistance from its Preamble. One could imagine, for example, a situation wherein an inter-statedispute arises regarding the access to the territory and ensuing protection rights in one state for refugees who find themselves in the other state.

Also in international human rights law, cooperation is a firmly established inter-state obligation (Art. 2 (1) ICESCR). Some of the most fundamental human rights that are so-called peremptory norms, have been identified to entail erga omnesobligations for states, entailing also the obligation of states to cooperate in ending their violations. The Internation Law Commission’s Draft Articles on Responsibility of States for International Wrongful Acts qualifies as such the obligations to end gross or systematic violations of prohibitions of slavery and slave trade, racial discrimination and apartheid and torture (Commentary to Art. 40 and 41). This thus imposes a shared responsibility upon states to end systematic violations of discrimination and non-refoulement of refugees outside of their own territory.

One specific, and increasingly enforced obligation to cooperate internationally in order to end human rights violations can be found in climate law cases. In the Urgendaclimate case, for example, both the Hague Court of Appealand the Dutch Supreme Court found that the government’s acknowledgement of a necessity to act against a collective problem (greenhouse gas emissions) which forms a real threat of the rights to life and to private and family life (Art. 2 and 8 ECHR), including of the global population beyond its national territory, in combination with scientific calculations regarding its share in it, imposes an obligation on the (Dutch) state to individual action within its capabilities. This is an effective example of a so called ‘common but differentiated responsibility (and respective capabilities)’ (CBDR(RC))mechanism and might also find an application in states’ protection obligations towards refugees beyond their territory (cf. Dowd and McAdam).

Undoubtedly, more is required for sufficiently precise and enforceable legal responsibility-sharing criteria at an international level. At a regional level, solidarity and cooperation have been operationalized to a limited extent. Inthe EU for example, these fundamental principles of general EU law (Arts. 2 and 4(3) TEU) are explicitly established as principles of EU migration policies, both within their internaldimension (Art. 78 TFEU), as within their external dimension (Arts. 8 and 21 TEU). It could be argued that Art. 80 TFEU requires structural and fair responsibility-sharing measures that go beyond emergency situations (Tsourdi). In terms of specific extraterritorial obligations of member states for the protection of refugees, however, these provisions have only been implemented as internal crisis and ad hoc mechanisms, such as the temporary relocation measures of the 2015 hot spot approach – which the European Court of Justice has found legally binding even for EU member states opposing them. This crisis approach will become structuralized as aninternal EU crisis solidarity measure in the newly proposed Crisis Regulation. However, these are no structural and fair a priori responsibility allocation mechanisms – and both the Dublin Regulation and the Temporary Protection Directive, activated for the first time in 2022 for persons fleeing Ukraine, each in their way confirm territorial jurisdiction criteria and primarily reduce protection standards. At the external level, the voluntary resettlement commitments cannot make up for the unrelentless responsibility-shifting to third countries and undermining of access to asylum, that will continue under the new EU Pact on Migration and Asylum, adopted by the European Parliament and the Council in 2024and to be implemented by 2026.

Responsibility to Protect and the Capacity to Influence

Under the RtoP–doctrine, international humanitarian law has shaped obligations of states to protect persons against the atrocity crimes of genocide, war crimes, crimes against humanity and ethnic cleansing, including through preventive measures. This is not only an obligation resting on the state with territorial jurisdiction. It is complemented by obligations of other states to assist and undertake collective action. In its 2007 Application of the Genocide Convention case (Bosnia vs. Serbia), the ICJ qualified this as a due diligence obligation of a bystander state to prevent the violations from happening, to the extent of its individual capacity to effectively influence the prohibited outcome.

In a context of extraterritorial refugee protection, employing “all means reasonably available” under the RtoP could entail prevention obligations to protect persons fleeing genocide or at risk of forced displacement – who have not yet crossed aninternational border, thus effectively protecting potential refugees in spe, e.g. by granting asylum through resettlement or supporting the hosting state (cf. Tendayi Achiume), withoutin principle even excluding the option of intervention.

The approach of specifying the collective prevention obligation to each state on the basis of its capacity can also be considered a ‘common but differentiated responsibility (and respective capabilities)’ (CBDR(RC)) allocation mechanism.

A potential application of this mechanism in a refugee situation is currently unfolding in Gaza, where Israel’s waragainst Hamas is affecting the civil populationdisproportionally, entailing war crimes, crimes against humanity and possibly genocide – a risk also considered plausible by the ICJ. Besides the question of Israel’sextraterritorial responsibility in occupied territory, also thenegative and positive obligations of bystander states regarding those committed and alleged atrocity crimes are at stake. In this context the question of extraterritorial protection obligations towards displaced populations is at play at two levels: towards those internally displaced within Gaza – who are not formally ‘refugees’ under international law since they have not left their country of origin yet, but are at risk of becoming it –, and towards those who are international refugees, given that the majority of the Palestinian population in Gaza has an UNRWA-refugee status — (their families) having been expelled from their homeland in 1948 and 1967.Given the extremely dire situation in Gaza, bystander statescould also be argued to have an extraterritorial obligation to employ all available means to effectively guarantee access to international protection in order to prevent the prohibited atrocity crimes from materializing. In the case brought by Nicaragua against Germany before the ICJ, the request qualifies the suspension of UNRWA funding as a violation of Germany’s prevention obligations. But also many other states’ responsibility could be engaged, such as Egypt’s for keeping the borders closed, or non-neighboring countries for not delivering visa.

Conclusion

Under international law due diligence obligations apply to states extraterritorially. These include protection obligations towards refugees, other forced migrants or even, as apreventive duty, those at risk of forced displacement that has not yet materialised. This is not, however, a structural, a priori allocation mechanism that can guarantee an equitable distribution of responsibilities among states and acomprehensive and effective rights protection to refugees.

Overall, each of the proposed de lege ferenda avenues require more clarification regarding the material scope and nature of the extraterritorial protection obligations: which specific rights of refugees under the Refugee Convention or human rights do states have to protect beyond their borders, and what standards do those non-territorial states owe them? Also, the practical legal viability and litigation potential of the proposed mechanisms for a more equitable distribution of state responsibilities are left to be assessed and tested.

Nevertheless, some contours of such a more legally robust mechanism can be suggested along the lines of existing legal arguments in other fields of international law. As to the nature of rights, international law imposes far reaching extraterritorial protection obligations upon states when it concerns the right to life (climate case), peremptory norms such as non-discrimination and non-refoulement (ILC Draft Articles), or prevention of atrocity crimes (RtoP-doctrine). As to the specific refugee rights guaranteed by the 1951 Refugee Convention, the ICJ could be a potential forum litis for determining respective responsibilities of signatory states.

As to the scope of the measures the responsible states should then take, a CBDRRC-approach seems to have some potential. States’ specific contributions would then be determined on the basis of their respective capacities to impact the extraterritorial outcome (e.g. preventing violations of the rights to life and family and private life, or the prohibition of genocide) or a calculation of a state’s contribution to the collective problem (cf. climate change). Such an approach has already been employed in some refugee protection policy initiatives to a limited extend — e.g. intra-EU relocation. On a global scale, however, the CRRF and the GCR have shownthat this approach still purely depends on voluntary commitments and has not yet resulted in enforceable legalallocation mechanisms.

The contributions of this Symposium are the result from a strategising workshop organised by the Migration Law Research Group in Ghent on 12 January 2024 in the context of the Scientific Research Network on Extraterritorial Human Rights Obligations in Practice (funded by the Research Foundation Flanders, grant number W002420N).