INTERNATIONAL COOPERATION AND RESPONSIBILITY-SHARING TO PROTECT REFUGEES: WHAT, WHY AND HOW?

Abstract

While countries that receive refugees have certain legal obligations to assist and protect them, the legal duties of other States to step in and help relieve this burden is less clear. Despite multiple proposals, a mechanism to systematically, equitably and predictably allocate responsibilities between States at a global level has still not been agreed. The UN's High-Level Summit on Addressing Large Movements of Refugees on 19 September 2016 held some promise in this regard, but the resulting New York Declaration was more muted than earlier drafts. This article seeks to provide a unique insight into the meaning of responsibility-sharing and international cooperation from the perspective of individual States. It does so by examining statements they have made at various UN fora over the past decade. It focuses on the two main methods of sharing responsibilities, namely the provision of financial and other assistance to host countries, and the admission of refugees. It then considers the extent to which States perceive responsibility-sharing to be a legal obligation, as opposed to a voluntary undertaking, and analyses this in light of expert opinion. Finally, it discusses the principle of common but differentiated responsibilities, a concept drawn from international environmental law, and considers whether and how it might apply in the international refugee law context.

International cooperation and, in particular, cooperation among countries of origin or nationality, transit and destination, has never been more important; ‘win-win’ cooperation in this area has profound benefits for humanity. ¹

I. INTRODUCTION

‘If there is one lesson to draw from the past few years’, wrote the United Nations Secretary-General in mid-2016, ‘it is that individual countries cannot solve [large-scale refugee movements] on their own. International cooperation and action … must be strengthened.’ ² The number of displaced people today is at an all-time high—65.6 million in 2016 ³ —yet the distribution of refugees is starkly imbalanced with the vast majority hosted by low- and middle-income countries in developing regions. ⁴

While countries that receive refugees have certain legal obligations to assist and protect them, the legal duties of other States to step in and help relieve this burden is less clear. ⁵ Herein lies the dilemma: what can be done to more equitably distribute responsibility for refugee protection among States? This has been the subject of decades-long discussion and research by States, policymakers, academics, refugee law experts and the United Nations High Commissioner for Refugees (UNHCR). Yet, while multiple proposals have been put forward ⁶ and individual States have made various overtures towards responsibility-sharing, ⁷ a mechanism to systematically, equitably and predictably allocate responsibilities between States at a global level has still not been agreed.

On 19 September 2016, the UN General Assembly held its first-ever High-Level Summit on Addressing Large Movements of Refugees and Migrants to address this and related questions. It was a significant and timely opportunity for the international community to adopt concrete commitments with respect to responsibility-sharing. ⁸ Indeed, the zero draft of the political declaration (which, in amended form, became the New York Declaration for Refugees and Migrants and the Comprehensive Refugee Response Framework) included a Global Compact on Responsibility Sharing for Refugees which ‘underline[d] the centrality of the principle of responsibility-sharing in ensuring effective refugee protection’, ⁹ ‘recognize[d] that international cooperation and solidarity in shouldering the burden are fundamental in assisting States faced with large-scale refugee displacement in hosting refugees’, ¹⁰ and ‘commit[ted] to an equitable sharing of responsibility for hosting and supporting refugees, while taking account of differing capacities and resources among States’. ¹¹

However, the finally-agreed text of the non-binding New York Declaration is comparatively muted. First, the proposed Global Compact on Responsibility Sharing for Refugees, which was supposed to be a key outcome of the UN Summit, has been postponed for two years; when it is adopted, it will simply be the Global Compact on Refugees (with no mention of responsibility-sharing in the title). ¹² Second, rather than firmly committing States to ‘an equitable sharing of responsibility’, the Declaration instead commits them to a ‘more equitable sharing of burden and responsibility’, taking into account not only their differing capacities and resources but also their existing contributions. ¹³ Third, while the Declaration importantly reaffirms States’ existing legal commitments, it does not expand them. Nor does it contain clear action points, accountability mechanisms or targets. ¹⁴

As Lebanon's Ambassador to the UN, Nawaf Salam, observed after the UN Summit: ‘There are no commitments in terms of responsibility-sharing, no agreement on relocation of refugees, no real commitment to [the creation of] development funds that could address the needs of refugee and host communities.’ ¹⁵ Indeed, a joint statement from the co-hosts of President Obama's Leaders’ Summit, held the day after the UN Summit, recognized that ‘no routine mechanism exists yet to facilitate the kind of voluntary responsibility-sharing for refugees that was demonstrated today’. ¹⁶

All this gives rise to a number of questions. Why did the outcomes of the UN Summit fall short of the expectations, especially given global displacement numbers and recognition of the need for greater action? How committed are States to international cooperation and responsibility-sharing? Do States understand these concepts in the same way as the UN and legal experts? It is clear that the success of any responsibility-sharing mechanism will depend on its acceptance and implementation by States. ¹⁷ Indeed, many of the proposals made over the years to promote more equitable responsibility-sharing, including the zero draft's proposed Global Compact, have been more ambitious than States have been willing to accept. As noted by Elizabeth Ferris, an academic who was seconded to work with the UN Summit's Special Adviser, Karen AbuZayd, in the lead-up to the Summit, ‘academic journals are filled with bold, ambitious proposals that have zero chance of success in the “real world” of politics and diplomacy.’ ¹⁸

Against this backdrop, this article examines statements made by States at various UN fora over the past decade to shed light on their understandings of, and positions with respect to, international responsibility-sharing. It seeks to provide a unique insight into the meaning of responsibility-sharing and international cooperation from the perspective of individual States, which cannot be gleaned from collective statements or soft law instruments. As Garlick observes of UNHCR's Executive Committee Conclusions, adopted by States: ‘ExCom has referred to “burden-sharing” repeatedly over the years, in strongly-worded and ambitious terms. But the unequivocal language on the importance and urgency of burden-sharing in several ExCom texts has concealed deep divisions emerging in some of the discussions between developing and industrialised States.’ ¹⁹

As a study in international law, the article focuses exclusively on responsibility-sharing at the global level rather than in regional schemes, such as those in Africa, Latin America or the European Union. Each of these has particular nuances specific to the historical, political and social context, as well as the empirical nature of refugee movements in those areas. They may also be influenced by differing concepts of (regional) solidarity, considerations of geography and financial concerns. ²⁰ Further, it should be noted that in some contexts—such as rescue at sea—calls have been made for greater international cooperation to share burdens and responsibilities through regional arrangements and mechanisms. ²¹

After briefly exploring the issue of terminology with respect to responsibility-sharing, the article examines States’ understandings of this principle in the context of international refugee protection. It focuses on two main methods of sharing responsibilities: the provision of financial and other assistance to host countries, and the admission of refugees. It then considers the extent to which States perceive responsibility-sharing to be an obligation, as opposed to a voluntary undertaking, and analyses this in light of the views of various commentators. Finally, the article discusses the principle of common but differentiated responsibilities, a concept drawn from international environmental law, and considers whether and how it might apply to international refugee law.

The article's methodology entailed an exhaustive review of States’ interventions over the past decade at UNHCR's Executive Committee meetings and before sessions of the Third Committee of the General Assembly (during which UNHCR's annual report was examined), ²² as well as at the relevant roundtables of the 2016 UN Summit (where available). States’ pledges at the 2011 Ministerial Meeting facilitated by UNHCR to mark the 60th anniversary of the 1951 Refugee Convention and the 50th anniversary of the 1961 Convention on the Reduction of Statelessness were also analysed, but nothing of particular pertinence emerged. Overall, the statements: (a) reveal the extent to which States regard responsibility-sharing as a legal duty, as opposed to a more general soft law principle; (b) shed light on what they understand its content to be; and (c) give clues as to the likelihood of the 2018 UN Global Compact on Refugees reflecting any new cooperative framework.

There are, of course, certain limitations to this research approach—most notably the fact that States are unlikely to voluntarily endorse, on record, a principle that they do not regard as legally binding. Indeed, most of the statements identified that advocated responsibility-sharing as a binding obligation were made by developing States, many of which were hosting large numbers of refugees at the time. It was often the same States, year after year, repeating similar calls to the international community, no doubt in search of greater solidarity and assistance. Nevertheless, developing States were not alone in this call, and were sometimes joined by developed States that were already demonstrating solidarity with host countries and were eager to encourage others to follow suit.

II. TERMINOLOGY

‘International cooperation’ is a broad term that is used in a number of different contexts, including, but also extending beyond, international refugee law. ²³ It is a core objective of the UN Charter and is key to achieving international peace and security. ²⁴ Generally speaking, international cooperation refers to two or more States working together towards a common goal. ²⁵ According to a report of a UNHCR-facilitated meeting of experts, ‘[i]nternational cooperation is best understood as a principle and methodology.’ ²⁶ Burden-sharing and responsibility-sharing can be understood as particular forms of international cooperation, or as objectives thereof, arising in the context of refugee protection. ²⁷ These concepts have not been clearly defined, ²⁸ and as examined below, States adopt a variety of interpretations as to what they entail in practice. Generally speaking, burden-sharing relates to alleviating the pressure on States that are hosting large numbers of refugees, ²⁹ and responsibility-sharing relates to the recognition that refugee protection is a global responsibility. ³⁰

The term ‘burden-sharing’ has met with some controversy since it may imply that refugees constitute a burden for their host countries. ³¹ This has prompted a shift towards the term ‘responsibility-sharing.’ For example, in the context of the Mexico Plan of Action—a continent-wide framework for the protection of displaced people adopted by 20 governments in 2004—Harley recalled that participating States ‘emphasized their humanitarian duty to work positively together and to share the responsibility for protecting refugees’, noting that previous usages of ‘burden-sharing’ had promoted a negative perception of refugees. ³²

Humanitarian organizations tend to prefer the term ‘responsibility-sharing’ since it implies ‘a more positive image of refugees and a stronger framework for international cooperation’. ³³ Indeed, former UNHCR Assistant High Commissioner for Protection, Erika Feller, has explained that the shift from the language of ‘burden-sharing’ to ‘responsibility-sharing’ recognizes that refugees are part of the solution, not just a ‘problem’. ³⁴ According to Türk and Garlick:

‘Responsibility-sharing’ casts refugees in a more favourable light, as potential contributors and assets for their host societies and as the holders of rights that create correlating responsibilities for States. States bearing ‘burdens’ may see themselves as passive recipients of those arriving and seeking protection; while ‘responsibility’ can be seen to imply legal obligations and a requirement to take positive action. ³⁵

At an Expert Meeting in 2011, UNHCR noted that:

The focus on ‘international cooperation’, rather than other terms such as ‘responsibility-sharing’, ‘burden-sharing’ or ‘international solidarity’, was welcomed. It was felt that a lengthy discussion on terminology (especially on the merits of ‘burden’ versus ‘responsibility’ sharing), at the expense of making concrete progress on enhancing cooperation in practice, needs to be avoided. ³⁶

It should, however, be noted that ‘international cooperation’ in the refugee context is not limited to burden- and responsibility-sharing. For example, it has also been used by States in discussions about monitoring and managing migration, ³⁷ strengthening border protection and control measures, ³⁸ addressing mixed migration, ³⁹ and combatting human smuggling and trafficking. ⁴⁰

The terms ‘burden-sharing’ and ‘responsibility-sharing’ both continue to be used by States ⁴¹ and UNHCR ⁴² in various fora. For example, in the New York Declaration, States committed to ‘a more equitable sharing of the burden and responsibility for hosting and supporting the world's refugees.’ ⁴³ States have sometimes also referred to the need for greater international solidarity with countries that are hosting large numbers of refugees, or have called more generally for enhanced international cooperation without specifically referring to burden- or responsibility-sharing.

This article predominantly uses the term responsibility-sharing, unless citing States that have used other terms. When the principle of international cooperation is referred to, this should be interpreted to mean international cooperation to share the responsibility for refugee protection.

III. WHAT DOES INTERNATIONAL COOPERATION ENTAIL WITH RESPECT TO REFUGEE PROTECTION?

It is commonly accepted that international cooperation in the context of refugee protection is not the subject of any binding legal agreement. ⁴⁴ While the importance of international cooperation is emphasized in the Preamble to the 1951 Convention, ⁴⁵ no guidance is given as to what this actually means. This is due to the fact that the Convention was not designed to address international cooperation in any detail. ⁴⁶ Indeed, at the time of its drafting, States rejected a proposal by the then UN Secretary-General to formally cooperate by ‘agreeing to receive a certain number of refugees in their territory’. ⁴⁷

According to the outcomes of a UNHCR-facilitated meeting of experts in 2011, international cooperation ‘can be manifested in many forms, including material, technical or financial assistance, as well as physical relocation of asylum-seekers and refugees.’ ⁴⁸ Indeed, international cooperation to share burdens and responsibilities is generally broken down by UNHCR and commentators into two main categories: the provision of financial and other assistance to host countries, and the admission of refugees, most commonly through resettlement. ⁴⁹ In addition to financial support, this first category can include technical assistance and capacity-building, ⁵⁰ consultation and sharing of information. ⁵¹ Some view burden- or responsibility-sharing even more broadly. For example, Gottwald suggests that the scope of burden-sharing has widened over the past 60 years, with practitioners increasingly acknowledging that the concept of ‘burden’ needs to extend to all phases of displacement, including preventing and finding durable solutions to displacement. ⁵²

The nature of responsibility-sharing will also vary depending on context. With respect to rescue at sea, for example, it may entail financial, material, technical or other capacity-building assistance; assumption of responsibility by non-disembarking States for status determination, protection or durable solutions; and/or direct in-kind assistance or participation in joint operations or processes. ⁵³

For the most part, States’ calls for responsibility-sharing examined for this article fit within the ‘financial’ and ‘physical’ categories, as discussed below. For example, the representative from Brazil explained at the 2016 UN Summit that: ‘A balanced sharing of responsibilities … calls for two kinds of action: to help host countries in the developing world to ensure that these countries can guarantee basic rights for refugees; and to expand admission channels so that a proportion of refugees currently in overloaded developing countries can seek protection elsewhere.’ ⁵⁴

However, States, too, sometimes take this even further. ⁵⁵ For example, they have called for international cooperation or burden- and responsibility-sharing to address the root causes of displacement, ⁵⁶ to promote development activities in countries of origin and host countries, ⁵⁷ and to provide political support to host countries. ⁵⁸ Despite its own questionable human rights record, China has asserted that burden-sharing includes demonstrating tolerance and respecting and promoting the human rights of refugees. ⁵⁹ States, both individually and through UNHCR's Executive Committee, ⁶⁰ have also called for international cooperation with respect to internally displaced persons (IDPs) ⁶¹ and stateless people ⁶² (which goes beyond the scope of this article).

The majority of calls for increased burden- and responsibility-sharing—particularly direct calls for financial assistance and physical relocation—have come from developing countries, most of which host refugees. ⁶³ While such calls have usually referred to the international community generally, they have sometimes been directed specifically at developed countries. ⁶⁴ By contrast, when developed countries refer to responsibility-sharing, it has mostly been in the more general context of acknowledging the efforts of host countries, ⁶⁵ calling for greater international cooperation generally, ⁶⁶ emphasizing the importance of burden-sharing, ⁶⁷ reinforcing the principles of burden- and responsibility-sharing, ⁶⁸ and/or noting that sharing the burden of protecting refugees is an on-going challenge. ⁶⁹ Indeed, host countries that perceive they are not receiving adequate assistance from the international community have described burden-sharing as ‘lofty rhetoric.’ ⁷⁰

A. Financial Assistance

Financial assistance to refugee-hosting countries has been described as the ‘most convenient and common’ way for burden-sharing to be effected ⁷¹ and as ‘the easiest form of sharing.’ ⁷² Indeed, the provision of financial assistance, predominantly through donations to UNHCR, is the most conventional way for States (usually developed countries) to support over-burdened host countries.

In their various statements, host countries have made clear that financial assistance must not only meet the immediate needs of refugees, but must also include assistance to minimize the adverse impact of refugee inflows on host countries. ⁷³ This has also been acknowledged by developed States and States collectively. ⁷⁴ For example, Sweden recognized that ‘[s]ince the massive inflows put serious strain on social services, the economy and the infrastructure of host countries, more needed to be done to share the burden and to enable host countries to continue taking in refugees’. ⁷⁵

As might be expected, calls for responsibility-sharing in the form of financial assistance have most commonly been made by developing countries. ⁷⁶ This stems from the oft-cited reality that over 84 per cent of refugees are hosted by developing countries, ⁷⁷ and also ties into the discussion below concerning the differentiation of responsibilities according to capacity. Some developing States have made general calls to the international community to provide greater financial support to host countries, ⁷⁸ whereas others have called for assistance with respect to a particular cohort of refugees. ⁷⁹ In 2016, China said that ‘countries that took in refugees and applied the principle of non-refoulement should receive financial support.’ ⁸⁰

By contrast, developed States have rarely called for the international community to deliver greater financial contributions, apart from some key UNHCR donors that are keen to share responsibility for funding the organization in a more equitable manner. Finland, for example, noted in 2007 that Nordic countries provided almost 80 per cent of voluntary contributions to UNHCR and called on other donors to assume their share of the burden. ⁸¹ The United States, which is UNHCR's biggest donor, has similarly noted that it is the obligation of Member States to adequately fund UNHCR. ⁸²

In addition to financial support, several States have called for responsibility-sharing in the form of technical assistance. According to Egypt, for example,

the provision of assistance to refugees, burdens and responsibilities must be shared. Developed countries should be encouraged to accept more refugees and provide technical and financial assistance to countries emerging from conflicts to help them build their institutional capacities and provide basic services to all their citizens. ⁸³

The United States has also recognized the importance of information-sharing, noting that ‘[g]lobal responsibility could not be properly shared without coordinated humanitarian responses. In that connection, data-sharing and coordination with the United Nations system were of key importance’. ⁸⁴

B. Physical Responsibility-Sharing

The three ‘traditional’ durable solutions for refugees are voluntary repatriation, local integration and resettlement. Providing complementary pathways for the admission (and stay) of refugees can take many different forms, however, including humanitarian visas, work or study opportunities, visa exemptions for certain groups, temporary evacuation schemes, labour mobility schemes and family reunification. ⁸⁵ Hurwitz has described the admission and reception of refugees as ‘[t]he most radical and thereby least popular manner to relieve first asylum States from the heavy burden of receiving and protecting refugees’. ⁸⁶ Indeed, developed States appear to be much more inclined to provide financial assistance to host countries than to accept refugees; one statement by Japan even suggests that it understands international cooperation as being synonymous with monetary contributions. ⁸⁷

The most common means of physical responsibility-sharing requested by developing and/or host countries has been resettlement, with calls for quotas to be ‘commensurate with the number of refugees’ ⁸⁸ (and often the size of the population of the host country as well); for the resettlement process to be expedited through increased places; ⁸⁹ and for ‘more flexible’ resettlement criteria to be adopted. ⁹⁰ In requesting more resettlement places, some States have explained that voluntary repatriation is slow and they are unable to provide local integration solutions. ⁹¹ For example, the representative of Thailand told the General Assembly in 2007 that ‘[w]hile voluntary repatriation, rather than resettlement, should be the preferred solution in dealing with displacement, the international community should share responsibility for providing third-country resettlement where repatriation was not feasible’. ⁹²

The limited number of developed States that have called for more resettlement places during the meetings examined—including by establishing new programmes—have tended to be resettlement countries themselves. While some of these States were presumably striving to relieve the burden on developing host countries, others appeared to be more interested in minimizing their own level of commitment: in a 2014 meeting of UNHCR's Executive Committee, for example, Australia stated that ‘the burden of resettling refugees and displaced persons should not be restricted to a small group of wealthy countries’. ⁹³ Almost all of the countries calling for more resettlement over the past decade were in Europe and focused particularly on the European asylum system. ⁹⁴ However, in terms of offering places, several of the key resettlement countries over the same period were outside Europe. ⁹⁵ At the Leaders’ Summit in New York on 20 September 2016, at least 18 countries across four continents committed to starting or expanding resettlement programmes, or announced plans to increase complementary pathways for refugees. ⁹⁶

Although commentators tend to focus on admission to a third country when analysing the ‘physical relocation’ component of responsibility-sharing, some States have called for international cooperation to facilitate voluntary repatriation and reintegration. ⁹⁷ For example, Iran has noted that ‘[i]nternational cooperation with the country of origin was needed in particular to facilitate voluntary repatriation and reintegration’; ⁹⁸ Bangladesh has ‘stressed the importance of translating the burden-sharing principle into concrete financial measures and measures to facilitate repatriation’; ⁹⁹ and Egypt has stated that ‘the principles of international solidarity and shared burdens and responsibilities must be applied, including in terms of allowing refugees to return to their countries of origin or to resettle in a third country’. ¹⁰⁰

More generally, a number of States have called for international cooperation and/or burden- and responsibility-sharing to provide durable solutions, ¹⁰¹ including specifically with respect to protracted situations. ¹⁰² Fonteyne argues that the provision of durable solutions may be a more critical aspect of international cooperation than the provision of financial and technical assistance. ¹⁰³

IV. RESPONSIBILITY-SHARING: AN OBLIGATION OR A VOLUNTARY UNDERTAKING?

The legal character of States’ responsibilities with respect to responsibility-sharing and international cooperation has been the subject of considerable discussion and analysis. ¹⁰⁴ In 1983, Fonteyne argued that burden-sharing was a norm of customary international law, ¹⁰⁵ asserting also that UN Member States have some burden-sharing obligations deriving from the UN Charter: ‘UN Member States’ obligations with respect to UNHCR must include at least participation to a reasonable extent in the financing of the Office and its operations and UNHCR resettlement schemes.’ ¹⁰⁶

However, the more widely-held view is that while the principle of responsibility- or burden-sharing is a critical norm of international refugee law, it does not impose legally binding obligations on States. ¹⁰⁷ Garlick explains that, unlike the principle of international cooperation, burden-sharing to protect refugees is not contained in any international treaty. ¹⁰⁸ She also notes that recent inconsistent State practice is unlikely to support the case for a binding obligation in customary international law. ¹⁰⁹ Hurwitz agrees, explaining that the principle of solidarity and burden-sharing is best understood as belonging to the category of general soft law principles. ¹¹⁰ However, given that burden-sharing is one of the ‘founding principles’ of international law, she argues that it ‘must necessarily have some bearing on the conduct of States and international organisations’. ¹¹¹

More broadly, it has been argued that the principle of international cooperation (as opposed to burden-sharing) has some legal force. For example, Volker Türk and Madeline Garlick—two of UNHCR's most senior legal protection officials—maintain that a ‘legal obligation for States to cooperate with each other in regard to refugee matters, directly among themselves and via cooperation with UNHCR, … emerges from the UN Charter, UNHCR's Statute, and subsequent relevant UNGA resolutions in conjunction with the 1951 Convention, as well as other international refugee instruments and corresponding State practice’. ¹¹² However, they acknowledge that, without specific elaboration, it is very difficult to ascertain ‘precisely what form and content such cooperation would take, and what States’ respective contributions thereto should be’. ¹¹³ In examining State practice, refugee scholars Goodwin-Gill and McAdam identify a ‘significant level of practical cooperation … even if material contributions and political or moral support for the displaced waver and formal obligations are elusive’. ¹¹⁴

Even if it could be argued that responsibility-sharing is a legally binding norm, what would this mean in practice? How would States’ obligations be measured? As Fonteyne explains:

All burden-sharing really requires is that the nations of the world, as a group, achieve a given result: the provision of material assistance to, and where necessary the removal of excessively burdensome refugee populations from the territory of, countries of first refuge. The obligations of individual States are thus by definition indirect and, one would say, not susceptible to a priori determination with any degree of specificity. ¹¹⁵

This is where the concept of common but differentiated responsibilities may come into play, discussed further below.

A. The Position of States

Analysis of statements by States over the course of the last decade shows a variety of positions as to the nature of their responsibilities to cooperate. Some have explicitly stated that they are not under any legal obligation to share the responsibility for refugee protection. Zambia, for example, has noted the apparent ‘absence of binding legal obligations on the international community to contribute to the international protection of refugees’. ¹¹⁶ Others have noted the need to convert the principles of solidarity and equitable burden-sharing into binding obligations, implying that this is not presently the case. ¹¹⁷ Yet others have used relatively weak language, referring to the ‘importance of’ ¹¹⁸ or a ‘need’ for international cooperation and burden- and responsibility-sharing; ¹¹⁹ noting that this is ‘necessary’; ¹²⁰ stating that the international community ‘should’ do more; ¹²¹ and expressing ‘hope’ that the international community would show greater support ¹²² or fulfil its responsibilities. ¹²³ Such language does not indicate a sense of obligation. In slightly stronger terms, some States have referred to the international community's ‘joint’ or ‘collective’ responsibility to assist overburdened host countries. ¹²⁴

A number of States have used firmer language in their calls for enhanced international cooperation, such as the term ‘must’, thereby implying that the international community has a responsibility to work together. They have stated, for example, that States (or the international community) ‘must’ strengthen their cooperation and coordination; ¹²⁵ share responsibilities for protecting refugees; ¹²⁶ take action to alleviate the burden on host countries, including through resettlement; ¹²⁷ uphold the principle of burden-sharing; ¹²⁸ recognize the fate of refugees, returnees and displaced persons as a common responsibility; ¹²⁹ share the burden of countries that have hosted refugees for decades; ¹³⁰ resolve the global problem of displacement through international burden-sharing; ¹³¹ assume responsibilities to enable Jordan to continue to serve as a safe haven for refugees; ¹³² recognize joint responsibility for refugees, returnees and displaced persons; ¹³³ share responsibility for hosting Afghan refugees in Pakistan; ¹³⁴ and step up efforts to assist developing countries to overcome challenges. ¹³⁵

Taking this even further, some States have referred explicitly to an obligation or a duty on the part of the international community to engage in burden- and responsibility-sharing. ¹³⁶ France claimed in 2015 that ‘the unprecedented global migration crisis … imposed an obligation on every country to take urgent action’. ¹³⁷ With respect to Syria, Libya stated in 2013 that the international community was ‘duty-bound’ to contribute sufficient funds to house, feed and care for refugees in host countries, ¹³⁸ and Brazil asserted that countries that did not share borders with Syria ‘had a duty’ to improve access to their territories by Syrian refugees. ¹³⁹

In 2012, Egypt asserted that Member States had ‘an obligation under international law to ensure that global efforts to protect and assist refugees were successful’, ¹⁴⁰ and Bangladesh argued that the international community had ‘a clear obligation’ to address the root causes of the presence of Muslim refugees in its territory. ¹⁴¹ China emphasized in 2007 that UNHCR, the international community and developed countries in particular had ‘a duty to help’ developing host countries in a spirit of solidarity and burden-sharing. ¹⁴² In 2000, the United States emphasized that it was ‘the obligation of Member States to adequately fund UNHCR’. ¹⁴³

At first glance, these references to an obligation or a duty on the part of States appear to be framed rather strongly. However, while some States have set out clear obligations—such as providing funding, addressing root causes or improving access for refugees—others have been rather vague as to what the ‘obligation’ actually is. Taking urgent action at a global level, ensuring the success of global efforts and helping developing host countries, for example, are hardly solid obligations. Arguably, these States were willing to acknowledge that the international community has an ‘obligation’ to act, but not to take this further by spelling out its substance. The questionable practices by some of the States that have made such statements also calls into doubt their genuine commitment to the ‘obligations’ they promote.

Further, it is important to note that the vast majority of statements implying some level of obligation on the part of the international community—from the weaker expressions of what States ‘should’ do, through to the concrete statements of their alleged duties or obligations—have come from developing countries, many of which host large refugee populations. These are the States that would be most likely to benefit from greater responsibility-sharing. Developed countries, which are the primary target of such calls, have rarely commented on the nature of their obligations in this regard.

B. The Basis for States’ Positions

Some commentators have developed theories and drawn conclusions about why States engage in responsibility-sharing. ¹⁴⁴ For example, Kritzman-Amir and Berman have commented that ‘[u]nder the current international regime, all state practices that express the principle of responsibility-sharing are voluntary and considered to be a matter of “charity,” not obligation’. ¹⁴⁵ Other commentators, such as Thielemann and Betts, rationalize States’ acts of responsibility-sharing according to the benefits that accrue to them, with Betts arguing that ‘States in “the North” do not engage in burden-sharing for purely altruistic reasons or because of an interest in refugee protection for its own sake but because of having linked interests in other issue-areas, notably in relation to migration, security and trade.’ ¹⁴⁶ Some commentators also point out that engaging in burden-sharing can serve as a type of ‘insurance’ against unexpected future occurrences. ¹⁴⁷

It is not possible to deduce the basis on which developed countries have engaged in responsibility-sharing solely from their statements at UN meetings over the past decade. Realistically, as mentioned above, these are not likely to be fora in which States will voluntarily assert their own commitments, let alone provide justifications for them.

Nevertheless, on several occasions developing and/or host countries have outlined, or at least alluded to, reasons why the international community should be doing more to cooperate. In 2016, for example, Egypt called on all States ‘to respect the tenets of the international refugee regime’ when urging States to uphold the principle of international cooperation, ¹⁴⁸ emphasizing that this principle is rooted in the international legal framework. Other States have taken more of a moral standpoint, urging the international community to ‘demonstrate compassion, commitment and support’, ¹⁴⁹ or emphasizing that it does not make sense for one country to shoulder so much of the refugee burden alone. ¹⁵⁰

Some States have suggested that host countries provide protection ‘on behalf of the international community’, ¹⁵¹ implying that hosting refugees in itself is an act of international cooperation for which other States ought to be responsible as well. In 2007, for example, Zambia stated before the General Assembly that ‘[r]efugees and internally displaced persons were the responsibility of the international community and countries of asylum were carrying a burden on its behalf’. ¹⁵² Similarly, in 2015, Jordan insisted that ‘the world must share the burden with us, because we are performing that humanitarian duty on behalf of all humankind’. ¹⁵³ UNHCR appears to share this viewpoint, explaining that ‘[c]ompliance with international refugee law represents a form of responsibility-sharing, through which States honour their commitments to each other, as expressed in the 1951 Convention and other refugee law instruments’. ¹⁵⁴

In 2015, Armenia brought another dimension to the issue by stating that ‘the international community must intervene when Governments [are] unwilling or unable to provide the necessary aid’. ¹⁵⁵ This raises an interesting question as to when the international community is expected to provide support and assistance to host countries. Should this extend, as Armenia suggests, to situations where a country is unwilling to provide assistance? Would this principle only apply to developing countries?

V. ‘COMMON BUT DIFFERENTIATED RESPONSIBILITIES’: AN EMERGING CONCEPT IN REFUGEE LAW?

Perhaps the most complex question with respect to responsibility-sharing is how States’ responsibilities should be measured. As discussed above, responsibility-sharing is a collective undertaking which depends upon, but does not define, the individual contributions of States. It is against this background that the principle of common but differentiated responsibilities has been considered in the context of refugee law, mostly by commentators but also more recently by States and UNHCR, as discussed below. This principle recognizes that States have different strengths and capacities to protect refugees, and that it is not reasonable or realistic to expect all States to contribute in the same way and to an equal degree.

The principle of common but differentiated responsibilities, derived from international environmental law, has been a key aspect of many of the burden-sharing proposals made by commentators over the years. ¹⁵⁶ Schuck explains that it is ‘both a norm of fairness and a constraint dictated by political prudence’, noting that it is ‘probably essential to both consent and broad participation’. ¹⁵⁷ According to Hathaway and Neve, ‘[u]nder a system of common but differentiated responsibility, the net resources available for refugee protection would be maximized by calling on states to contribute in ways that correspond to their relative capacities and strengths’. ¹⁵⁸ Hathaway has since described it as

meaning that beyond the common duty to provide first asylum, states could assume a range of protection roles within their responsibility-sharing quota (protection for duration of risk; exceptional immediate permanent integration; residual resettlement)—though all states would be required to make contributions to both (financial) burden-sharing and (human) responsibility-sharing, with no trade-offs between the two. ¹⁵⁹

Participants at a UNHCR-facilitated meeting of experts in 2011 also recognized that providing for differentiated contributions by States in cooperative arrangements, based on needs and capacities, could be ‘a good way to incentivise cooperation and create political momentum’. ¹⁶⁰ In 2014, emphasizing the need for a global pact of solidarity, the UN High Commissioner for Refugees himself advised the General Assembly that this should be ‘based on burden-sharing and common but differentiated responsibilities’. ¹⁶¹

The principle of common but differentiated responsibilities is central to international environmental law, ¹⁶² and is reflected, for instance, in the United Nations Framework Convention on Climate Change. ¹⁶³ The principle recognizes that States have contributed to environmental problems to differing degrees and have varying capacities to address them. ¹⁶⁴ In the refugee law context, the principle focuses predominantly on the latter consideration: namely, that the protection of refugees is the responsibility of all States, irrespective of whether they have contributed to the causes of displacement, and each can contribute to protection in different ways. According to Wall, ‘the apportionment of blame for refugee flows is neither necessary nor appropriate in the refugee context’, although he does recognize that developed countries have ‘special responsibilities’ owing to their greater capacities. ¹⁶⁵

Nevertheless, a number of commentators do call for countries of origin to accept some degree of responsibility for their involvement in causing the displacement of refugees. ¹⁶⁶ Schuck points out that some States are likely to reject a voluntary obligation to share responsibility for refugees if they did not generate their displacement and are unlikely to receive refugees themselves. ¹⁶⁷ Focusing on addressing the causes, rather than attributing responsibility for them, Suhrke has commented that ‘States would have more incentives to accept responsibility-sharing schemes if they simultaneously had some assurance that they could control events that produce refugees.’ ¹⁶⁸

While this article does not advocate attributing responsibilities to States on a causal basis, ¹⁶⁹ it does acknowledge the difficulty of encouraging States to engage in responsibility-sharing on purely humanitarian grounds. ¹⁷⁰ Further, if States are left to assess their own capacity to contribute to responsibility-sharing subjectively, pursuant to the principle of common but differentiated responsibilities, this is likely to limit its effectiveness. ¹⁷¹ Having said this, States are unlikely to have it any other way.

States have not explicitly discussed the principle of common but differentiated responsibilities in the refugee context in their statements to the UN. However, as noted above, developing countries have sometimes called on developed or ‘rich’ countries to step up their efforts to share the ‘burden’, implying that they have greater responsibilities on account of their wealth. ¹⁷² The concept of common but differentiated responsibilities was also indirectly raised at the UN Summit in New York, during a roundtable discussion on a compact for responsibility-sharing for refugees. The Deputy Foreign Minister of Estonia stated, for instance, that ‘[w]e all have to contribute in a spirit of burden-sharing and using different policies and means available in order to find a solution for this common concern of global scale’. ¹⁷³ Focusing specifically on host countries, the Director General of the Bureau of Foreign and Immigrant Affairs of the Republic of Iran stated that any new commitments on the part of host countries ‘should be in conformity with their national capacities and legislations’. ¹⁷⁴

The New York Declaration contains a version of the common but differentiated responsibilities principle, although it is not articulated as such. Paragraph 68 provides that: States commit ‘to a more equitable sharing of the burden and responsibility for hosting and supporting the world's refugees, while taking account of existing contributions and the different capacities and resources among States’. ¹⁷⁵ While this is a step forward, it is unlikely to change the current situation without further clarification as to the precise nature of States’ differing responsibilities. For example, how will it be decided (and by whom) whether a State should provide financial assistance, pathways for refugees, or both? What level of assistance will States provide, and how will this be determined? Which States will be responsible for sharing the burden for which displacement situations? Will hosting refugees in itself be considered as an act of responsibility-sharing?

Commentators have made a number of suggestions about how a better allocation of responsibilities could be achieved. For instance, Fonteyne has argued that each State should participate in financing refugee programmes and providing resettlement opportunities ‘to the full extent of its capabilities’. ¹⁷⁶ Hathaway and Neve have developed a list of indicators to measure what would be fair in the context of their proposed burden-sharing mechanism. ¹⁷⁷ Chimni has proposed adjusting States’ refugee intake based on land mass and population density. ¹⁷⁸ Kritzman-Amir argues that ‘wealthier countries with stronger absorption abilities should bear more responsibility than poorer countries’, and that States with a ‘specific bond of solidarity’ with countries of origin should bear greater responsibility than those that do not. ¹⁷⁹

Realistically, it would be easier to define the specific responsibilities of States in the context of a particular displacement situation, rather than in the abstract. This could be facilitated by the new Comprehensive Refugee Response Framework, annexed to the New York Declaration, which is ‘based on the principles of international cooperation and on burden- and responsibility-sharing’ ¹⁸⁰ and sets out the relevant elements in responding to situations of large-scale refugee movement. These include ensuring: (a) ‘adequate, safe and dignified’ facilities for the reception and admission of refugees; ¹⁸¹ (b) support for immediate and on-going needs, including adequate financial and other resources, development funding mechanisms, and empowering refugees to establish supportive systems and networks; ¹⁸² (c) support for host countries and communities, including through a joint, impartial and rapid risk and/or impact assessment to identify and prioritize assistance and needs; ¹⁸³ and (d) securing durable solutions, ¹⁸⁴ the success of which ‘depends in large measure on resolute and sustained international cooperation and support’. ¹⁸⁵ The document stresses throughout the importance of partnerships between States, international organizations, financial institutions, multilateral donors, civil society, refugees and the private sector, as well as closer cooperation and joint planning between humanitarian and development actors. ¹⁸⁶

Having surveyed a wide range of past cooperative arrangements, Türk and Garlick argue that the following features have been integral to their success: (a) recognition of the value of common interests among concerned States; (b) commitments by States in different geographical areas to contribute; (c) a focus on the development of region- or situation-specific strategies; (d) acknowledgment that refugee movements often form part of ‘mixed’ migration movements; and (e) willingness to engage in on-going follow-up processes. ¹⁸⁷

Since the Comprehensive Refugee Response Framework will form the basis of the 2018 Global Compact on Refugees, ¹⁸⁸ these ideas about the content of responsibility-sharing may begin to shape the future cooperative underpinnings of the international protection regime. As Türk and Garlick make plain, enhanced international cooperation can help to ensure ‘more effective, swift, and comprehensive responses to the needs of refugees’, ¹⁸⁹ while ‘[p]redictability and equity are also intrinsic features of any functioning international cooperative framework’. ¹⁹⁰ While they argue that an additional Protocol to the 1951 Convention would be the best way to entrench such a response in the longer term, ¹⁹¹ an incremental approach seems more realistic.

VI. CONCLUSION

The UN Special Representative of the Secretary-General for International Migration, Peter Sutherland, has stated that ‘refugees are the responsibility of the world. …Proximity doesn't define responsibility.’ ¹⁹² Yet, as this article has shown, the international community still has a long way to go before equitable responsibility-sharing becomes a reality. States do not share the same understanding of, or level of commitment towards, this key principle of international refugee law. In the UN meetings examined, the majority of calls for greater responsibility-sharing have come from developing States, particularly host countries. Though some developed States have acknowledged the need for greater responsibility-sharing, they have been reluctant to recognize any concrete obligations on their part.

By examining what States have said in UN fora over the past decade, this article has shown (perhaps unsurprisingly) that those States with the greatest capacity to protect refugees tend to have the least political will to do so. This may, in the end, be counterproductive: as Goodwin-Gill and McAdam have noted, ‘[n]ational self-interest may prevail when States are confronted with population displacements on their borders, but national goals will often be best achieved through cooperation with others’. ¹⁹³

The statements examined for this research were made over the course of the last decade, and admittedly some progress has been made during that period. States have called for a strengthening of the responsibility-sharing regime in their various statements, particularly in recent years. For example, at the Security Council in 2000, the representative for Bangladesh explained that ‘[m]y delegation strongly believes in reaching an international consensus on the need for burden-sharing with countries hosting refugee populations’. ¹⁹⁴ More recently, in 2012, Kenya stated that ‘[t]he international community and the United Nations must urgently explore new options to build a more equitable international burden-sharing regime’. ¹⁹⁵

Also in 2012, Tunisia commented that ‘[t]he values of solidarity and cooperation should be better defined and incorporated into the relevant international instruments so as to promote global solidarity and greater involvement on the part of developed countries’. ¹⁹⁶ The following year, in relation to the Syria crisis, Pakistan noted that ‘the question of burden-sharing required new and innovative approaches, and that the issue should no longer be brought up intermittently but should rather form an integral part of UNHCR plans and policies’. ¹⁹⁷ In 2016, Egypt referred to the need ‘to reinvigorate the initiative to complement the 1951 Convention and 1967 Protocol to realize a more equitable partnership in sharing burdens and responsibilities’. ¹⁹⁸

Yet, as discussed throughout this article, the 2016 New York Declaration—the most recent articulation of the international community's willingness to engage in responsibility-sharing—has fundamental weaknesses. Significantly, despite its commitment to a more equitable sharing of the burden and responsibility for hosting and supporting refugees, ¹⁹⁹ it contains no concrete commitments to provide financial assistance to host countries or to increase the provision of resettlement places and other admission pathways. ²⁰⁰ What this overarching commitment to more equitable burden- and responsibility-sharing means in practice, therefore, remains to be seen.

The unfortunate reality is that States appear unwilling to open up additional pathways to refugees on a large scale. At the Leaders’ Summit in New York on 20 September 2016, States’ pledges to roughly double the number of resettlement places or other legal admission channels to refugees that year were criticized as insufficient. For example, the Secretary-General of Amnesty International commented that ‘[w]ealthy countries cannot only commit money and walk away. The 360,000 resettlement places offered globally need to be seen in the context of more than 20 million refugees worldwide.’ ²⁰¹ Furthermore, a provision in an earlier draft of the New York Declaration that called on States to resettle 10 per cent of the global refugee population annually was removed. ²⁰²

States—especially developed ones—seem much more willing to provide financial assistance than to accept refugees into their territories. But this is not enough: physical protection is an essential component of responsibility-sharing. Further, although financial assistance is essential, there is a risk that this can be used by States in a counterproductive way. As Brazil noted in a discussion at the 2016 UN Summit, ‘[w]e must be cautious regarding the possibility that the provision of financial support to humanitarian agencies or refugee-hosting countries could serve, in some cases, to compensate for the adoption of policies that restrict the entrance of asylum seekers’. ²⁰³

Overall, States are clearly not ready to undertake concrete commitments for responsibility-sharing in the form of a new international instrument, even if it is non-binding. ²⁰⁴ While the 2018 Global Compact on Refugees has the potential to better define States’ responsibilities in this context, expectations should not be set too high. If States are not willing to undertake clear commitments now, this is unlikely to change dramatically in the course of the next year, especially given the absence of a solid legal or causal basis on which to base such responsibilities. If the principle of common but differentiated responsibilities is to be implemented in practice, then the international community must focus on defining how it will operate. Otherwise, there is a risk that it will be used by States not to expand their commitments, but simply to justify the status quo.