From Interstate - Journal of International Affairs VOL. 2011/2012 NO. 2

States' Interests and Migrant Rights: A Legal Dilemma?

By Stephanie Fitzgerald
Interstate - Journal of International Affairs
2012, Vol. 2011/2012 No. 2 | pg. 2/3 |
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States’ Legal and Moral Obligations Toward Burden Sharing

‘An early proposal for global sharing was promoted by legal scholars in the late 1970s’; the idea that by assigning refugees to States in accordance with the wealth and population density of that State, protection would be enhanced and inequalities amongst States would begin to disappear.85 ‘Sharing proposals authored by States have typically come from governments trying to relieve what they perceive as a disproportionate influx on their own territory’.86 Within the EU the countries that suffer are those located at the ‘external borders’, rather than those positioned inland.87

‘Sharing has been promoted as a means of reducing inequities among regions’, as without it the weaker States, who have high proportions of refugees, will begin restricting asylum allowances if left to suffer the burden alone. Stronger States must abide by their ‘moral duty and obligation under international law’ and take their share of this burden by either ‘relaxing asylum procedures or increasing resettlement’.88 This is what effectively happened with the Kosovo crisis, where Macedonia refused entrance onto its territory unless other States shared the burden.89 ‘Once it is accepted that a host country is too vulnerable to accept a mass influx of refugees, the options available ... seem to rely on international burden sharing arrangements as provided for in the Refugee Convention’s preamble’.90

However, it was established that access to asylum cannot depend on burden sharing agreements alone.91 It is an international obligation to grant protection to refugees and so Macedonia had a legal obligation to grant protection for all refugees coming to their territory, although it was suggested that in refugee situations protection ‘is best achieved through effective cooperation between all States and [the] UNHCR’. 92 In situations of mass inflows of refugees and where the, ‘first asylum State credibly threatens to deny asylum with reference to recognised national vulnerabilities’, 93 if States are alone in such an international crisis, they will suffer greatly, whether in their security or social social stability. Some States may physically, ‘lack capacity to address all [the] protection and humanitarian needs’94 of the refugees. Due to State inability to cope with mass inflows of migration, it is hard to believe that the refugee regime is struggling within the cooperation area. However, where States face enemies ‘they want to co-operate to enhance national security and international order; they also want to minimize the cost assigned to them as individual members’.95 The issues are the same for all States in both areas of war and migration, yet States seem reluctant to apply cooperation to one of the few remaining areas it may still apply sovereignty.

In emergency situations, burden sharing seems to be a recurring practise within international law.96 This suggests the presence of a general obligation amongst States to cooperate with each other during an international crisis. It must first be noted that the policy of cooperation is enshrined in the United Nations Charter, as seen above,97 as well as various other international conventions such as the Convention on the Law of the Sea.98 Cooperation could be interpreted as to include the need to share burdens with other States, to assist them in areas where they are struggling.

If this was accepted it could be said that due to the specific wording of the Refugee Convention, with the requirement for ‘international cooperation’,99 it followed that there is therefore an implied requirement for international burden sharing. Regardless of this interpretation there is specific reference to burden sharing within the preamble of the Refugee Convention100 itself, as well as within various other international agreements such as the United Nations Framework Convention on Climate Change101 and the United Nations Convention on the Law of the Sea.102 They all specify in one way or another that ‘unduly heavy burdens [are placed] on certain countries, and that a satisfactory solution of a problem of which the United Nations has recognised the international scope and nature cannot therefore be achieved without international co-operation’.103 The Organization of African Unity Convention104 also recognises the need for, ‘international cooperation, [to] take appropriate measure[s] to lighten the burden of the Member State granting asylum’. The binding presence of burden sharing in the legislation above illustrates recognition that for an international community to succeed, burden sharing practises are needed.

Although, the above conventions do not impose a legal obligation on States to develop such measures with regards to refugees, it seems States are uncertain as to what the appropriate tactic is to combat migration, therefore they have avoided the creation of a binding condition of burden sharing. This is evident with the Refugee Convention which recommends burden sharing tactics in the preamble, rather than specifying the practice in a binding article.105 Although burden sharing is only in the preamble of the Refugee Convention106 and not binding in nature, its binding presence within other pieces of international legislation, as well as its persistent use to assist States suffering with large inflows of refugees, suggests the concept of burden sharing is becoming part of customary law.107 States are also recognising the need of its use with regards to migration emergencies, as demonstrated above with the case study of Kosovo. However, the way in which States interpret the obligation to burden share will continue to differ unless a common asylum policy is created that is binding in nature, to which States are all party to.

In addition to the legal obligations, the existence of special obligations to protect refugees also needs consideration. 108 ‘The moral basis of these special duties ... is responsibility, at least in some measure, for having caused the situation’109 of those seeking protection. Take for example the Afghanistan conflict, the US’ military involvement, among other influences, led to hundreds of civilians seeking refuge in other States, many looking to the US for help,110 with more than 1,100 remaining in the US.111 Although this is due to the inability of States to force the return of refugees to their State of origin under international law,112 the US continues to routinely accept more refugees for resettlement than other countries,113 many from Afghanistan.114 Although the US has initiated various encouragement tactics for the return of refugees,115 the vast amount of refugees the US accepts for resettlement suggests that the US recognises a moral obligation towards victims of war, persecution and human rights abuses. To allow one country to suffer alone suggests ‘every State for themselves’; this however would contradict the intentions of the UN Charter, which stipulate a moral code of what is right and wrong. One of the fundamental rules within the code is that cooperation is vital for an international community to prosper. With no moral code, States would let States suffer on the grounds of sovereignty, wealth and greed.

The recurring presence of burden sharing within international law, despite its non-binding nature with regards to migration, is likely to have created a customary legal principle of burden sharing in the general realm of international law. Despite the legal obligation towards burden sharing, there is also the recognition of a general duty to share the burden in times of crisis. Through State practice, burden sharing seems legally binding; however a more specific asylum policy would ensure consistency amongst all States party to it.

Burden Sharing or Burden Shifting?

‘Burden-sharing debates…are becoming increasingly important in areas such as…refugee protection’.116 Certain States find themselves suffering an inequitable amount with regards to asylum seekers and refugees, not forgetting the mass amount of irregular migrants. These States have encouraged the international community to help reduce this burden and equally distribute the protection needed amongst all States. Sharing the burden can take various forms, Noll states three ways in which States need to address the unequal distribution of protection,117 as mentioned above. Firstly by using a financial burden sharing technique; secondly by maintaining a physical burden sharing policy and finally by concluding an international sharing policy to deal with these issues.118 Financial aid is given in the form of compensation to the States in need, through funds such as the European Refugee Fund, supporting Member States who bear high burdens of refugees and displaced persons.119

The redistribution of asylum seekers from one State to another is a further method, but the most controversial.120 ‘There has been increasing dissatisfaction with the system of international refugee protection which, in the eyes of some, suffers from substantial burden-sharing problems’, as certain States are bearing an, ‘inequitable share of the burden…with some countries granting protection to a disproportionately large number of displaced persons in relation to other States’.121 This can be seen from the general reduction of asylum applications from 346,700 in 2003 to 282,480 in 2004,122 yet, for islands such as Cyprus and Malta, as well as States at the border of the EU like Finland, high numbers of applications were recorded.123

The UNHCR research has also concluded that between 1994-2002 a disproportionate asylum and refugee burden is borne by smaller States,124 this may be due to the amounts of resources each State has, including space. In addition to the burden sharing debate, there have been threats made by States, to opt out of the 1951 Geneva Convention for the Protection of Refugees,125 emphasising the need to alleviate certain States from this burden. However, despite many efforts to maintain burden sharing, it is becoming standard practice to instead of sharing the burden, shift the burden to a third country. This can be seen through the use of the ‘third safe country’ policy recognised in the Dublin Protocol,126 as well as the Canada and US ‘Safe Third Country Agreement’.127

These measures are used to shift the burden back to the first country of asylum, usually the States requesting a system of burden sharing in the first place due to their geographic disadvantage, resulting in them being the first State where asylum is claimed. Other means of shifting arise through agreements between willing States, in exchange for financial aid or political benefit, or simply ignorance to recognise the need for help, allowing other States to suffer the burden alone. These practices have led to a general acceptance of shifting the burden to other States instead of taking an active role in sharing the burden of migration. This is not only a complete misinterpretation of burden sharing, but can also become a problem for either the stability of the State that is geographically susceptible to asylum seekers, as well as when agreements have been made with unsafe “third States”.

The ignorance to the potential problems these agreements may cause, suggests States are only looking to shift their responsibility, disregarding their potential protection obligations. The game of burden shifting is where, ‘one State defects from a protection demand on the presumption that another State will deliver protection’.128 If this became the generally accepted approach, asylum seekers and refugees may end up being shifted back to their States of origin, ultimately not being protected by the principle of non-refoulement.129

Shifting the Burden

The Dublin Protocol contains a “Safe Third Country” provision under Article 3(3),130 allowing Member States, in accordance with national laws, to send an asylum seeker to a third State, a State of transit where the asylum seeker was originally recognised, in compliance with the Geneva Convention.131 This provision ensures refugees do not flee to further States of safety, they must seek protection in the first safe State they reach. A “safe third country” was defined in the ‘Host Third Country Resolution’132 as a State that does not present any risks of the applicant being exposed to torture or inhuman or degrading treatment.133 Protection must have been granted by the third country, or there must be evidence of admissibility to the “safe third country”, who offers effective protection against refoulement, as stipulated by Article 33.1 of the 1951 Refugee Convention.134

This in effect allows member States to shift the burden of processing asylum applications to a ‘safe State’ of transit. This can also be seen in various other agreements such as the Canada and US agreement135 which stated that asylum seekers, ‘must make their claim in the first country in which they arrive’,136 the United States or Canada. They are not permitted to travel to the other State to pursue an application there. This, however, is placing an unfair burden upon the States of transit, such as Malta and Italy, who are usually the first States encountered by the migrants on their voyage to Europe. Although it has been noted above that only in emergencies will States take an initiative to share the burden of migration, if the practice of shifting asylum seekers back to the countries of initial entry continues, a gradual emergency will arise. These States are already feeling the pressures of the migration burden through the fear of security breaches137 and the decreasing ability to sufficiently maintain its own nationals as well as refugees.138 To allow this misconception, or abuse,139 of burden sharing to continue would be neglecting the fundamental principle that the international community is based upon, cooperation, meaning to assist others.140

A further way in which States have begun to shift the burden is through agreements to transfer migrants to other States in exchange for some form of benefit. A famous example of this type of burden shifting is the Tampa case.141 The State of Nauru accepted funding from the Australian Government in exchange for housing a detention centre that held and assessed the refugee claims of asylum seekers who had arrived, unauthorised, in Australia.142 Australia has instead of sharing the burden of migration, shifted the burden to its surrounding islands.

The actions carried out by Australia in this case seem at first contrary to the Convention on the Law of the Sea143 which obliges, ‘all shipmasters to render assistance to people in distress at sea regardless of the nationality or status or the circumstances in which the persons are found’. However, the legislation does not stipulate that the disembarkation has to be on the territory of the State whose shores the rescue took place,144 and despite the DISERO and RASRO schemes,145 States have to be willing to allow disembarkation, regardless of the state of the rescue vessel and irregular migrants. Australia’s actions could lead to ship masters becoming ignorant to distressed vessels, due to the lack of willingness to allow disembarkation by the surrounding States. They may be unwilling to continue the voyage with the burden of the rescued, especially if it jeopardises the crew’s health and safety on the basis of a lack of resources on board.

Such an attitude can already be seen to be evolving from various case studies of irregular migrants, who explain how they have been ignored by passing ships. A specific example is the case study of Justice Amin, who states that a Maltese ship refused to offer irregular migrants assistance even though they claimed their boat was sinking.146 Pushing the disembarkation onto Nauru and various other States, illustrates burden shifting to its fullest extent. If such an attitude were to spread, ship masters may be unwilling to recue those in distress at sea147 and would be justified in doing so under Article 98 of the Convention on the Law of the Sea.148 This article stipulates that the shipmaster must render assistance to those at sea, ‘in so far as he can do so without serious danger to the ship, the crew or the passengers’. If Australia’s attitude toward irregular smuggling spread, the underlying principle of international cooperation, embedded in almost every international instrument, would be in dispute.

Another significant issue in relation to the Tampa case concerned the rights of the refugees. The agreement between Australia and Nauru contained a non-refoulement condition, as a means for Australia to uphold obligations towards the Refugee Convention’s non-refoulement clause. However, Nauru has only recently become a party to the Refugee Convention149 and was not, at the time of the agreement, legally bound by this condition. Ultimately Australia, through the agreement with Nauru, transferred asylum seekers to a country that could violate the non-refoulement clause in the agreement with Australia. However, the fact that Nauru could carry out refoulement is not a direct breach of Australia’s international obligation, as Australia has not directly violated the principle of non-refoulement. Nauru may also have certain customary obligations to respect the principle of non-refoulement. However, Nauru’s intentions towards the rights of migrants should be judged by their actual practice.150

As Nauru has yet to ratify various conventions that confer basic human rights to its own citizens such as the Convention against torture and other cruel, inhuman or degrading treatment or punishment,151 or the International Covenant on Civil and Political Rights,152 it is difficult to ascertain what their actual treatment towards irregular migrants seeking asylum would be.153 Australia’s point was that the irregular migrants’ asylum claims were to be assessed outside its territory to demonstrate their lack of tolerance towards migrant smuggling.154 However, by allowing other third States to become “dumping grounds” for asylum seekers, who have lower protection standards for migrants is not only shifting responsibility for the migrants, but also jeopardising the rights of migrants. This can also be seen in various other agreements, such as the 2008 Italy and Libya agreement. Here Libya agreed that any migrants intercepted at sea would be returned to Libya, without having their asylum applications assessed.155 This burden shift from Italy to Libya disregarded the rights of the migrants, as Libya is also not party to the refugee convention156 and various other conventions conferring basic rights to its own citizens. This would mean that when the migrants reach the shores of Libya they are more than likely to face human rights abuses.

Another example of this unjustified approach to burden sharing is the recent Malaysia and Australia agreement. The agreement was to allow Australia to send 800 asylum seekers to Malaysia to be processed and in return Australia would take, ‘4,000 refugees from Malaysia over the next four years’.157 This again was to stipulate that migrant smuggling will not be accepted, but obligations to established refugees will be respected. However, it was argued that Malaysia is not one of the signatories of the 1951 Refugee Convention and they do not distinguish between asylum seekers and irregular migrants.158 ‘Malaysia’s proven hostility toward refugees means that the 800 asylum seekers to be transferred there under the agreement [would have faced] grave risks, including possible long-term detention, caning, and other serious rights violations’.159 This agreement does not put the rights of the asylum seekers first, but rather the security objectives of discouraging migrant smuggling to Australia. As stated by the director of Human Rights Watch, ‘[r]esettlement of refugees is an excellent solution ... but no prize is worth sacrificing the rights of hundreds of asylum seekers’.160 The Australian High Court agreed and ruled this agreement illegal.161

The country to which asylum seekers can be taken for processing has to be ‘legally bound by international law or its own domestic law’,162 to have protection procedures in place for the asylum seekers’. 163 Although the agreement was invalid, the fact that States are persistently attempting to shift the burden of processing asylum applications, regardless of whether their human rights would be adhered to, suggests that the whole concept of burden sharing has been lost. Australia has only received two per cent of the 385,000 asylum claims made to the forty four countries of the industrialised world, ranking fifteenth,164 suggesting reluctance to participating in sharing the burden of migration, showing a lack of cooperation.165 Its strict border controls are disadvantageous towards asylum seekers; however, many of them, due to their fear of persecution cannot use the legal means of escaping their country and so are mixed among the irregular migrants through the process of smuggling. This emphasises the dangers of burden shifting, because if States become too absorbed with shifting as a tactic of curbing irregular migration and maintaining security, potential refugees may feel the severity of its effects.

States should not perceive their obligations to be for refugees only, as recognised refugees are not the only victims of strict security measures, asylum seekers, who may well be genuine refugees, are also affected. Yet, this seems to be the case with Australia, that accepts its refugee obligation, as can be seen through its planned humanitarian migration programme annual quota, as well as its ranking in the top three resettlement countries for many years,166 though shows reluctance to process irregular migrants’ asylum claims. With an annual quota of how many refugees States are willing to accept, it seems burden sharing may be becoming a welcomed practice. ‘By making the system more transparent and increasing the number of people … States would be prepared to take, the Commission says illegal entry would become less attractive’, 167 satisfying both the burden sharing requests along with combating migrant smuggling. To transfer asylum seekers to places where there is a higher tolerance of human rights abuses, in order to send a daunting message to smugglers should be a crime in itself, as ‘every refugee is initially an asylum seeker’.168 States need to understand that shifting the burden in this manner, ‘is not an effective way to stop people smuggling’,169 neither is it evidence of cooperation.

The idea of cooperation is not about creating agreements to transfer migrants to any State regardless of its human rights history, but sharing the burden of migration with “safe third States”. Where one State is suffering from high numbers of refugees another State, party to the international instruments relevant in this area, should assist them. The fact that States are shifting migrants to countries, who do not uphold human rights at an internationally accepted level, is an obvious violation of their own international obligations. Parties to the Refugee Convention are obliged not to send a refugee back to a place of persecution. A State not party to the conventions may well be a further State of persecution or, they may in turn send the refugees onto further States where maltreatment occurs or potentially back to their country of origin. This is not saying that burden shifting is unjust, ‘efforts to increase the number of refugees resettled in third countries should be encouraged’,170 however, the third country must be a ‘safe’ country.

Third countries not bound by the clause of non-refoulement in the refugee convention171 should not be considered “safe third countries”. However, ‘non-compliance with international treaty obligations for refugees is becoming something of a global norm’,172 with States persistently trying to preserve sovereignty and shift responsibility. This can again be seen with the incidents earlier this year when ‘more than 220 Somali, Eritrean and Ivorian refugees drowned’ in an attempt to flee the conflicts in Libya.173 The UNHCR called for the ‘European Union to urgently put into place more reliable and effective mechanisms for rescue-at-sea’ and burden sharing.174 The Maltese MEP Dr Simon Bushtit said ‘it is high time Europe shared the pain’.175 However, in the UK ‘Theresa May, the Home Secretary, has already warned her European counterparts that the UK is not prepared to join in any “burden sharing” and will not take in migrants who have arrived in other EU countries’.176

This position for the UK was upheld when Theresa May was supported in her decision to not, ‘open Britain’s borders to migrants fleeing the turmoil in Libya and North Africa’, instead only offering financial assistance to manage the situation. 177 This demonstrates the reluctance of States to help its neighbours by refusing to participate in sharing the burden of refugee protection, despite the emergency of masses fleeing from persecution. This seems contrary to the internationally accepted practice for refugee protection in cases of emergencies, as noted above. From the Kosovo crisis it seemed generally accepted that in emergencies States should accept a share in the burden, physically relieving States of refugees. Although in that situation countries such as Macedonia refused to accept any more refugees until there was a burden sharing scheme in place, such as the Humanitarian transfer programme.178 Does this mean that despite there being an emergency, States will not relieve other States of the burden unless they refuse to protect refugees? If this is the case, then refugees would have to suffer before States would be willing to share in the burden of their protection. This seems contrary to both principles of cooperation and refugee protection.

Due to the mass influx of refugees as a result of conflicts, States are beginning to suffer. In situations such as these, with the EXCOM conclusion recommendation179 and Council decisions180 in place on emergency protection, all States should be devising emergency plans to assist their neighbours in order to share the burden of mass refugee protection, at least on a temporary basis. However, this is still not the case, with States such as the UK refusing to share ‘the responsibility for a crisis in migration’, resulting in Italy and Greece, ‘seeking a suspension of the EU’s so-called Dublin system – under which Britain deports hundreds of immigrants to southern Europe ... the country in Europe in which they first arrived’.181 However, being at an unfortunate disadvantage geographically, Italy and Greece are primary bases where refuge is sought and are becoming flooded by migrants fleeing from Arab State conflicts. ‘The Italian immigration minister, Sonia Viale, told the Guardian that Europe had failed to give her country enough support ... it is a duty of all EU member States to support the countries under a strong migration pressure’.182

To allow countries to suffer with migration burdens is evidence of a complete lack of cooperation and an act that will lead to human rights abuses for the refugees affected. This can be seen from the many deported from Britain, under the Dublin Protocol, who have ended up destitute on the streets of Rome,183 or even subject to abuse.184 If incidents such as the above occur, States are acting contrary to Article 25 of the Universal Declaration of Human Rights: ‘Everyone has the right to a standard of living adequate for the health and well-being of himself and his family’,185 as well as the right to freedom from torture, inhuman or degrading treatment, Article 5.186The above suggests that not only will a lack of burden sharing bring a State suffering the burden alone to ruin, but also may in turn gravely affect the rights of refugees. This attitude may also make other States take up the attitude of ignorance, leaving suffering States no other choice but to deal with the migration emergency alone. This attitude can be seen to have been taken by Malta in the case earlier this year, where their ignorance to an emergency meant Italy had to provide safety for the migrants.187 If States allow this to occur, then they may be acting contrary to their international obligations.

In order to achieve a coherent system of burden sharing the creation of a ‘common policy’ has been suggested. 188 The harmonising of domestic refugee legislation, to which the 1951 Geneva Convention and the 1967 UN declaration on Territorial Asylum are evidence of, needs to be altered as to include a more concrete approach towards burden sharing, asylum seekers and refugee protection, with specific reference to ‘international solidarity’. 189 As burden sharing only appears in the preamble of the Refugee Convention and not in the actual convention articles its legal obligatory nature is confused, burden sharing is thus left to drift throughout international law as simply an unqualified concept. Despite the various approaches to avoid the burden sharing principle, ‘[i]n order to smooth the asylum process a true system of burden-sharing that includes a fair movement of persons needs to be established’.190

Aspiration to have a far more comprehensive burden sharing system in the refugee regime can initially be seen in the EU’s Amsterdam Treaty of October 1997, Article 63, which promotes, ‘a balance of effort between Member States in receiving and bearing the consequences of receiving refugees and displaced persons’.191The European Charter of Fundamental Rights,192 the United Nations Charter193 and the Universal Declaration of Human Rights 194 give only a broad set of freedoms and protections for asylum seekers. There must be a developed structure for a ‘Common Asylum Policy’ as well as working together with neighbouring countries to ‘improve conditions and alleviate the need for individuals to seek asylum’ at all.195

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