Dublin and Beyond: ‘Each According to Its Abilities’?

 Posted by: Swerissen Isabelle

Refugees are legally and morally entitled to some form of protection. This is generally undisputed. The disagreement begins when we ask the question which state will be called upon to provide that protection? David Miller discusses a comparable question in a situation where a person collapses on the street. In his article Distributing Responsibilities, Miller argues that the collapsed person is more likely to receive assistance if there is a single person, rather than several persons, passing by. This is true for several reasons, the most important of which, according to Miller, is that if there are several persons passing by, there is no clear allocation of responsibility.

In order to avoid this situation in the context of immigration, European states have, over the past two decades, created rules on responsibility allocation culminating in the Dublin II regulation. This regulation, often regarded as the flagship of the Common European Asylum System, has been the topic of heated debate following the ECtHR judgment in the case of M.S.S. v. Greece and Belgium and the ECJ Advocate-General’s opinion in joined cases C-411/10 NS and 493/10 ME. Negotiations on a recast Dublin regulation are ongoing, but seem to be gridlocked. Which lessons can the drafters learn from Miller’s discussion on the distribution of responsibilities?

Currently, the Dublin regulation establishes a hierarchy of criteria for identifying the state responsible for processing an asylum claim. In absence of family connections in the country of asylum, this will usually be the state through which the asylum seeker first entered the European Union. Asylum seekers who move to another state as a secondary movement can be sent back to the state of first entry, thereby increasing pressures on the border states of the European Union. This practice may have severe consequences in terms of human rights, as recognized in the M.S.S. case. Acknowledging that the Dublin system must be improved, the European Commission has proposed to introduce a mechanism for the temporary suspension of transfers to member states where the level of protection falls below Union standards. Unfortunately, given the politically sensitive nature of this ‘emergency mechanism’, member states have to this date been unable to reach agreement on this issue. The other changes proposed mainly relate to an expansion of the family-related allocation criteria and the speeding up of the process of identifying the responsible state. However, reconsideration may be needed beyond these modest changes.

A fundamental recast of the Dublin system should not be concerned with mere changes to the rules on responsibility allocation, ‘but with the underlying principles that should guide us …’, as Miller puts it. According to him, there are four principles (i.e. communitarian principle, causal responsibility principle, moral responsibility principle, capacity principle) that can inform a determination on the assignment of responsibility, three of which can, with some imagination, be recognized in the workings of the Dublin regulation.

A consideration that nowadays dominates the answer to the question which state is responsible for the protection of refugees in the Dublin system, but also in the global refugee regime (i.e. 1951 Convention), is geographic proximity. After all, a geographic proximate country is likely to be the first country of entry and, as such, is likely to have responsibility for many asylum seekers who arrive at its borders. The stated rationale behind this policy is to contain asylum seekers in neighboring countries, since those countries tend to have some sort of special solidarity bonds between them. This connects well to Miller’s communitarian principle. Under that principle, he assumes that agents feel a greater sense of responsibility towards those with whom they share communal ties. However, Miller himself recognizes that this principle cannot be used for all responsibility distributing purposes – a statement that also rings true in the context of immigration. Special solidarity bonds do not always exist between neighboring countries and may even exist between geographically distant countries, making geographic proximity not sufficiently morally justifiable to allocate responsibility in all cases.

Specific to the Dublin system is the idea that responsibility for examining an asylum claim should be allocated to the member state that played the most important part in the entry of the person concerned. This so-called ‘Dublin philosophy’ according to which the responsibility for deciding on an asylum claim is made dependent on the responsibility for controlling the external border, could be said to highlight the causal role played by a particular member state in ‘permitting’ a person to enter the territory of the European Union. As such, it conforms to Miller’s causal responsibility principle. Beyond that, this also involves somewhat of ‘an appraisal of the agent’s conduct’ in policing its land and sea frontiers, leaving the member state in question liable to moral blame for not sufficiently having done so. This corresponds well to Miller’s moral responsibility principle. However, the problem with both the causal and the moral responsibility principle is that they look, in the words of Miller, ‘too exclusively to the past’ in assigning responsibility. Forward-looking considerations, such as effective relief from harm in the future, are therefore not part of a determination on the allocation of responsibility. Such relief is, however, the core focus of refugee protection.

Taking their cue from the previous paragraphs and treating the provision of protection as of overriding concern, the drafters of the amended Dublin regulation may want to consider allocating responsibility on the basis of the fourth principle identified by Miller, the capacity principle. On the basis of this forward-looking principle, responsibility for ending a morally concerning situation should be assigned to the agent that can best bring it to an end. When applied to refugee situations, responsibility would thus fall on the member state that, in view of its absorption capacities, is best placed to offer protection. Besides the fact that the capacity principle, understood in this manner, is likely to be unpopular from a political point of view, it is also complex and problematic in the way that is creates incentives for member states to raise protection standards. Measures to help raise those standards in order to increase the ability of member states to offer protection seem to represent a more feasible interpretation of the capacity principle.

Having said that, the latest proposal by the Polish presidency concerning the introduction of an ‘evaluation mechanism’ should be welcomed. This mechanism, meant as a tool to address protection deficiencies before to grow into full-fledged crises, would be used as a preventive step before triggering the operation of the ‘emergency mechanism’ and will hopefully move negotiations on the Dublin regulation forward.

Expert Seminar on Shared Responsibility in International Refugee Law – In Search for a Legal Basis of Burden-Sharing

 Posted by: Swerissen Isabelle

Do States – and other subjects of international law – have a collective obligation to protect refugees? And if this is the case, does a breach of this obligation lead to shared international responsibility? At a time when the burdens and responsibilities that flow from massive displacement of people have been distributed so unevenly among the world’s regions and countries (see UNHCR Global Trends 2010), these two questions have attracted growing interest and were discussed at the Expert Seminar on Shared Responsibility in International Refugee Law that the SHARES Project organized on 30 May 2011 (see Programme). While a more detailed account will be provided in the forthcoming seminar report, we will use this blog post to give an overview of the discussions held at the Expert Seminar. Despite the variety of views presented on the above-mentioned questions, we intend to outline some of the general points and arguments made on the theory and practice of shared responsibility in international refugee protection at the international and regional levels.

INTERNATIONAL REFUGEE PROTECTION AND BURDEN-SHARING

At first sight, international refugee protection seems to be an area of international law that involves questions of sharing and distributing obligations and/or responsibilities. After all, “international protection” – while lacking a generally agreed definition – is understood as the protection provided by the international community because the refugee, due to a well-founded fear of persecution, is unwilling or unable to avail himself of the protection of his country of nationality (compare Article 1 of the 1951 Convention Relating to the Status of Refugees). UNHCR itself often refers to the “collective responsibility” to share the burden of the global refugee problem on the part of the State parties of the 1951 Convention and its 1967 Protocol (on burden-sharing see J.P. Fonteyne, ‘Burden-Sharing: An Analysis of the Nature and Function of International Solidarity in Cases of Mass Influx of Refugees’, (1978-1980) 8 Australian Year Book of International Law 162-188).

But is this burden-sharing really based on a legal obligation, or does it merely represent a moral principle? Some participants at the SHARES Expert Seminar observed that, in light of State practice, a collective obligation or ensuing shared responsibility, as manifested in equitable burden-sharing, does not exist. Whereas refugee protection was indeed considered a responsibility incumbent upon the international community during the Second War, UNHCR was not established with an operational mandate, which distinguished it from its different predecessor organizations, in particular the International Refugee Organization (IRO). Instead the responsibility for refugee protection was assigned to individual States or, more specifically, to the State on whose territory a refugee sought refuge. This responsibility to protect refugees on the part of individual States has been most prominently enshrined in Article 33 of the 1951 Convention, stipulating the prohibition to return a refugee to a place of persecution (non-refoulement).

The obligation of non-refoulement subsequently developed into the centerpiece of the international refugee protection regime, and has arguably even achieved the status of ius cogens. It is therefore all the more paradoxical that the obligation of non-refoulement counteracts an equitable sharing of the burden of refugee protection, for it imposes a larger burden on those States that are geographically closer to re-producing countries. These receiving countries are often less capable of accommodating large numbers of refugees for various reasons – one only has to think of the conflict-loaded and difficult socio-economic situation of most countries in sub-Saharan Africa. Consequently, it is not surprising that UNHCR’s mandate, enshrined in General Assembly 428 (V) (1950), has become quite operational over the years (as a Sudanese refugee in Egypt observed: “We live in a country of UNHCR”), and has been stripped of its temporary nature. The principle of non-refoulement does thus not present a valid legal basis for the collective obligation to protect refugees. It could even be argued that the principle has been (ab)used to prevent a more equitable of refugees among developed and developing nations due to its inherent link to with State territory, which prevents overburdened countries of asylum to send refugees to other potential host countries with better reception capacities.

Despite the absence of a legal basis for the collective obligation to protect refugees, shared responsibility may still be the result of a breach of obligations that concern the protection of individuals in other areas of law such as international human rights law and international humanitarian law. Although notions such as the “roots causes” of displacement or “preventive protection” have been tainted by the negative experiences during the war in the Former Yugoslavia, the current situation of mass flights from Syria to Turkey due to the repressive measures of the regime of Bashir Al-Assad proves the continuing relevance of the debate on the reasons of forced displacement (see SHARES news item on the situation in Syria), which are all too often found in massive human rights and humanitarian law violations. In this context, it could certainly be contended that the international community has a “responsibility to protect” civilian populations, to use the well-known catchphrase (see the forthcoming book by Julia Hoffmann and André Nollkaemper on the Responsibility to Protect: From Principle to Practice, based on the similarly titled conference). Strictly speaking, this “responsibility to protect” is not a responsibility but rather an umbrella concept for different collective obligations that are incumbent on the international community as a whole (erga omnes status). Failure to observe these collective obligations to protect may inter alia lead to forced internal and external displacement. Following this line of argument, the international community would incur shared responsibility for not having complied with its primary obligations.

Against this background, the participants discussed whether UNHCR could be seen as burden-sharing mechanism – that is a mechanism to implement the shared responsibility of the international community – as proposed, for instance, by former High Commissioner Lubbers. However, as mentioned above, UNHCR was de jure not designed to be a burden-sharing mechanism, although the continuously pressing needs of the global refugee problem have de facto led to the operationalization of the organization.  As a result of this discrepancy between normative and factual reality, the efforts of UNHCR are generally considered to be insufficient in reducing the disparities in international refugee burden-sharing. The activities of UNHCR are not guided by principles of equity but rather humanitarian necessity, as conditioned by budgetary and political constraints since UNHCR is largely dependent on the voluntary contributions of UN member States. UNHCR has made an attempt to remedy this situation by means of special agreements in the framework of the so-called “Convention Plus” Initiative, which was intended to lead to a more equitable burden-sharing. Yet, the Convention Plus Initiative ultimately failed to achieve its main objective for different reasons, mainly because it addressed burden-sharing eclectically rather than globally (see generally Marjoleine Zieck, ‘Doomed to from the Outset? UNHCR’s Convention Plus Initiative Revisited’, (2009) 21 International Journal of Refugee Law 387-420). Forced displacement is a global problem, which calls for global solutions and for a global approach in terms of burden-sharing, for instance, in the form of an amendment to the UNHCR Statute and/or the 1951 Convention.

REGIONAL REFUGEE PROTECTION AND BUCK-PASSING

The finding that burden-sharing at the global level does not really work begs the question whether burden-sharing functions better at the regional level, in particular the context of the European Union (EU). However, the practice of the European Union and its member States seems to somewhat mirror the problems that the refugee protection regime faces at the global level. Instead of sharing the burden of refugee protection by means of the more sophisticated legal framework of the EU treaties, the European Union and its member States have rather engaged in a practice of buck passing in their internal and external relations.

In its external or international relations, a policy of buck-passing may be observed in situations of where refugees are prevented from reaching the territory of the EU in the first place. This usually occurs as a result of a deliberate acts to circumvent refugee arrivals, referred to as ‘externalization of European border policies’, by taking action outside the territory, for example, by interdicting refugees in international waters or by exercising control over refugees in the territory of another (non-European) State through the operation of some kind of extraterritorial processing center (on extraterritorial immigration policies see M. den Heijer, ‘Europe Beyond its Borders: Refugee and Human Rights Protection in Extraterritorial Immigration Control’ in B. Ryan and V. Mitsilegas (eds.), Extraterritorial Immigration Control: Legal Challenges (Martinus Nijhoff Publishers: Leiden/Boston, 2010) 169-198). Frontex, the EU border agency, plays an important role in the context of buck-passing outside the EU. Equipped with high-tech detection equipment, helicopters and boats, it strengthens border security by ensuring the coordination of member States’ actions in the implementation of EU measures relating to the management of the external borders.

During the Expert Seminar it was argued that any time a State seizes the power or authority over a refugee to determine his or her destination, whether this occurs on the high seas or in the territory of another State, Article 33 of the 1951 Convention is implicated.  Moreover, the conduct of the EU and its member States is not only regulated by the 1951 Convention, and the prohibition of non-refoulement at the frontier, but also by other international obligations, which can in particular be found in the law of the sea (see the recent discussions on EJIL: Talk! here and here). A breach of these obligations will most likely result in a form of shared responsibility, depending on the degree of cooperation between the multiple actors involved. Various scenarios were discussed by participants in which both the State exercising extra-territorial powers, with assistance of Frontex, and the territorial State may have obligations in regard to refugees and may share responsibility in case of breach of such obligations. Although the competences of Frontex itself are limited in the execution of its border control operations, it was also suggested the EU – to which Frontex’s conduct is attributable – may be responsible to the extent that it shares competences with its EU Member States (see the recently adopted ILC Draft Articles on the Responsibility of International Organizations).

While the practice of extra-territorial refugee policies illustrates the shifting of obligations in relation to refugees who have yet to reached EU territory from EU member States to third States, the participants of the Expert Seminar also extensively discussed buck-passing in cases where refugees have been successful in reaching territory of the EU. This has been the subject of much debate, in large part due to the controversy surrounding the Dublin II regulation. This regulation, which replaced the 1990 Dublin Convention, is based on the presumption that protection standards in all EU member States are the same or at least equivalent. Mutual trust in comparable standards of protection, rather than actual harmonization of refugee rights, has thus formed the basis for assigning protective responsibility over refugees to member States. By virtue of the Dublin regulation, only one State, usually the country where the refugee first entered the Union, is responsible for the examination of an asylum application. As such, the system imposes an increased burden on countries at Europe’s external borders, who, due to the happenstance of geography, find refugees crossing their borders. Instead of distributing protection obligations more fairly, the regulation has resulted in an institutionalized form of buck-passing within the EU.

Greece’s broken asylum system shows this all too clearly. With a vast Mediterranean coastline and a porous land border with Turkey, Greece has become the gateway to Europe. The difficulties in coping with the increased influx of refugees have been recognized by the European Court of Human Rights in M.S.S. v. Belgium and Greece (also see SHARES blogpost), a case regularly referred to during the Expert Seminar. The case concerned the return of an Afghan asylum seeker to Greece by the Belgian authorities in application of the Dublin regulation. By knowingly exposing him to structural shortcomings in the asylum procedure and systematic problems in the detention and reception of asylum seekers in Greece – for which Greece itself was found responsible – the ECtHR ruled that Belgium had violated Article 3 of the European Convention on Human Rights. Rather than as a collectivity, both countries have individually breached their own human rights obligations, not making this case any less relevant from the perspective of shared responsibility, which can also arise from acts that cannot be attributed to the same actor. This judgment has dealt a major blow to the Dublin system, and underlined the continued international obligation of EU Member States to actively verify how the receiving States apply internal EU asylum legislation and procedures in practice, effectively debunking the myth of equality in protection.

Buck-passing or the assignment of ‘protection elsewhere’, whether extraterritorially or within the territory of the EU, is now surprisingly well entrenched. One striking feature, however, is that the idea of requiring a refugee to seek protection elsewhere is not explicitly anchored in the text of the 1951 Convention. In light of the absence of such authority, a key but less frequently asked question is whether protection elsewhere policies and practices are permitted under international law. A second related question is whether, assuming that some kind of transfer to another country of asylum is permitted, any legal impediments operate on States in choosing to send a refugee to a particular country. With regard to the latter question, States have mainly focused on the prohibition of refoulement as enshrined in Article 33 of the 1951 Convention as the only protection obligation that must be respected. States reason that, as long as they do not breach this obligation, they are not necessarily required to provide protection to refugees who reach their territory, but may send them to other States.

However, a perusal of the 1951 Convention shows that, Article 33 apart, there is a range of requirements imposed upon contracting States with respect to refugees, some of which can likewise be characterized as protection obligations. These obligations apply as soon as the refugee is within the territory of a State. This is so even if State agencies have not yet formally determined that the applicant satisfies the refugee definition, since recognition of refugee status is declaratory. In the words of the UNHCR Handbook: “recognition of refugee status does not make a person a refugee, but only declares him or her to be one”. Having said that, requiring a refugee to go somewhere else may therefore not be a simple ‘dumping’ of refugees abroad on the amorphous ground that they will be admitted and protected from expulsion, and expulsion only, in that third country. European policies have been controversial precisely for that reason. Rather, the sending State is under an obligation to ensure that refugees will be guaranteed certain fundamental rights or, as one of the speakers eloquently observed, “the onus is on the sending State”. Failure to observe this obligation and any ensuing violations of those rights in the State to which they are transferred, committed individually and separately by the sending and receiving States, can result in shared responsibility as illustrated by the M.S.S. case. In order to be lawful and meaningful, a burden-sharing scheme must therefore be implemented in a manner that takes into account all obligations incumbent on States under the 1951 Convention.

SOME PRELIMINARY CONCLUSIONS: BUCK-PASSING INSTEAD OF BURDEN-SHARING?

The discussions at the SHARES Expert Seminar revealed wide divergences between the theory and practice of shared international refugee protection at the global and regional levels. At the global level, only few geographically disadvantaged countries share the largest part of the burden of international refugee protection with the support of UNHCR, which could be characterized as a – albeit ill-equipped – de facto burden-sharing mechanism that implements the shared responsibility of the international community. Geography also appears to play a crucial role at the level of the European where EU Member States have used the framework of the Dublin II regulation to pass the buck to European border States such as Greece, or prevented refugees from entering EU territory in the first place.

It is widely accepted that States cannot “contract out” of their protection obligations or evade their international responsibility by passing it on to other States or by establishing an international organization, be it UNHCR or the European Union (including its border control agency Frontex), without a certain degree of effectiveness. However, an effective implementation of the obligations in the area of international refugee protection presupposes that the actors involved, be it States or international organizations, are aware of and recognize the nature and scope of their respective international obligations. While the discussions at the SHARES Expert Seminar have shown that States may have various collective obligations with regard to the prevention of forced displacement and individual obligations with regard to the protection of refugees, States often simply deny the existence of these obligations and ensuing responsibilities for political reasons. This observation is quite evident in the negatively connoted term “burden-sharing” that was criticized by several participants of the Expert Seminar as inappropriate in light of the compelling human tragedy that characterizes international refugee protection, which may actually not only come with ‘burdens’ but also benefits and opportunities for host countries.

It seems that the international community needs to be faced with yet another cataclysm – such as the two World Wars in the first half of the 20th century – in order to recognize the global dimension of international refugee protection as a shared responsibility. Interestingly, such a historical momentum may be created in another area of international law that could give rise to collective obligations and/or shared responsibility, namely international environmental law (see our next Expert Seminar on Shared Responsibility in International Environmental Law). For more recently, forced displacement induced by climate change has received increasing attention by scholars and practitioners alike and may lead to new and unforeseen challenges in the area of international refugee protection that call for a further clarification of collective rights and obligations.