The international framework for refugee protection, codified primarily in the 1951 Refugee Convention, its Optional Protocol, and the Draft Articles on State Responsibility, emanates from the human rights law and the jus cogens nature of the non-refoulement norm. The Universal Declaration of Human Rights under Article 14 grants everyone the right to seek and enjoy asylum from persecution. The refugee protection regime adopted by the global community, rooted in the United Nations Charter and the United Declaration of Human Rights, is reminiscent of constitutional law. However, unlike constitutional law, it is less enforceable, given the duality of international legal order and State sovereignty, resulting in a significant gap between the principles international law espouses and the practice of the States. With more than 37 million today, the number of refugees has been rising each day as the refugee regime has failed to fulfil its aims of ensuring alternate refuge and preventing refoulment. The main reason for this failure is that the current refugee regime is not equipped well to enforce State responsibility, which has made refugee rights non-justiciable. This calls for a transformative approach to prevent displacement, enforce accountability, and prohibit refoulment. This post suggests that this transformative approach can be found in the retributive theory of justice, as followed in domestic legal systems.
The normative nature of international law on refugees fails to translate into enforceable duties, as States enjoy the latitude to choose how, or indeed whether to fulfil their obligations. The reliance on “good faith” compliance has led to the prioritisation of geopolitical interests, which has severely limited the protectiveness of the law. This phenomenon is coloured by dynamic international relations, which, in its extreme, has resulted in outright refoulment.
Take the criminalisation of migrants and the imposition of stringent measures to deter asylum seekers in the name of national security or economic constraints. A survey found that more than 50% of the respondents in 8 out of the 10 EU countries surveyed believe that refugees increase the risk of terrorism and reduce job opportunities and benefits. These views colour policies towards refugees. The United Kingdom’s case is a classic example. The UK’s new policy after Brexit, the Safety of Immigrants Act of 2024, allows the government to deport immigrants and shift asylum seekers to Rwanda on a one-way ticket, citing the risk of “dangerous and illegal journeys to the United Kingdom”. After the UK Supreme Court held the policy unlawful, the government entered a Migration and Economic Development Partnership with Rwanda, designating it as a “safe third country” for migrating immigrants and limiting judicial checks on immigration cases. Following relocation, the Rwandan government will be responsible for these migrants. The United Nations Human Rights Council has warned against this arrangement’s harmful consequences, yet the law continues to raise grave human rights concerns, which the English Government has not adequately answered.
Moreover, the politicisation of refugee protection and discriminatory biases dictate the “selection” of refugees. States discriminate between refugees from different countries, religions, and ethical and regional groups. The case of Denmark designating certain towns of Syria as “safe” for repatriating Syrian refugees, a product of the Danish Prime Minister’s policy to have zero asylum seekers, underlines how preferring political agendas over international obligations raises eyebrows and yet leaves nations undaunted.
But why this problem?
The international refugee regime has achieved much less than what was expected. The ideals of the 1951 Convention were framed after the two world wars when political incentives powered the rehabilitation of the displaced Europeans. In the coming years of the Cold War, the Western world was motivated to absorb refugees from communist nations and later also from third world nations to further its hegemonic interests. However, after the fall of the Soviet Union, countries with their changed geopolitical interests started to view the refugee regime differently. This is one of the prime reasons for the slow progress towards enforceable refugee laws and the issues the world is facing today.
The cases of the UK and Denmark are mere examples of the more significant problem of limited executability. At its root lies the current legal framework, which is reactive, making State responsibility time-bound and incidental. A State’s involvement in a conflict does not result in responsibility for the ensuing statelessness. Without a proactive approach to mitigating the factors leading to forced migration and holding States accountable for their actions, the cycle of displacement continues unabated.
The Route Ahead – Incorporating the Retributive Theory
To bridge the gap between the aspirations of the refugee law and the ground realities, a transformative approach aiming to proportionate State obligations with their involvement in the displacement crises is imperative. Measures including enhanced peer review between States or adjudication by an enhanced international body dedicated to refugee rights will be crucial for realising this approach. This model has twin benefits: accountability and deterrence. Placing enforceable obligations to address the crisis will increase liability and prevent displacement at the source. In addition to this, the fear of additional obligations will deter nations from participating in the refugee crisis. Countries will think twice before helping a State against a community because they do not wish to spend their resources on the resultant refugee crisis.
Enforceable responsibility must be introduced for participating States at all stages of statelessness. The first step in broadening obligations under refugee law is to rework the current legal regime beyond regulating intake to enforce preventive and protective roles in times of conflict. States must aim for reconciliation before and during the conflict. Efforts may aim at compelling States to provide permanent residence and establishing initiatives inside the conflict-affected country to revitalise centres with infrastructural, cultural, and economic prospects. Assistance maybe taken from regional authorities to realise this. While it is difficult to envision a cooperative role in refugee protection played by warring nations, the safety of civilians and internally displaced persons must be prioritised and backed by an appropriate enforcement mechanism adopted by the international community.
The next stage involves compelling neighbouring countries to integrate refugees meaningfully or to transfer them to safer third countries. This suggestion considers the accessibility, cultural proximity, and ethnic similarity of the surrounding States with home counties. The system must be empowered to enforce safe passage and settlement as human rights and duties of all States. The easy realisation of family unity, a fundamental principle, is crucial here. Participant States can be sanctioned to raise funds and support to ease the resettlement at an international level. This will result in a just distribution of outcomes expected to be more agreeable to the global community.
In sum, the bounds of normative international practices must be pushed, and international duties must be made justiciable. An equitable world order can be established for the refugees with a nuanced understanding of contemporary conflicts and collective reimagination of State and international duties to refugees. This system shall reduce both the instance and the effect of refugee outflux and take us all towards a more humane world order for the stateless. A united effort from the international community and watchdogs for refugees is quintessential for the introduction and implementation of a strict regime for enforcing the rights of the stateless.
Tanishka Kapoor is a fourth year law student pursuing B.A.LL.B. at Rajiv Gandhi National University of Law, Punjab.