Sunday, 23 April 2017

Harshit Anand

Who wants The Unwanted? Refugee Situations and responsibility of the State of Origin

refugees_lawji

The recent crises in Jordan, Lebanon, Turkey, parts of Europe and the United States of America exhibit the inept handling of the refugee situation at the hands of the comity of nations. If figures published by the United Nations are to be trusted, there are around 65 million people in the world currently who have been forced to flee their homes due to conflict. There is a surge in these numbers everyday- the last time we had a situation like this, the year was 1945, World War II was coming to an end and entire Europe had almost torn itself apart. The problem of refugees today, therefore, is not just another predicament or international ‘issue’. Refugees come in company with a very tangible dilemma and the countries of asylum and resettlement have a legal as well as a moral obligation to provide economic and social support to their lot. The central question, therefore- are we in a position to provide any kind of incentive to receiving States so that instances of human assistance during times of humanitarian crises become the norm, and not the exception? It is the author’s assertion that a case for reparation can be made out against those States of Origin who, by their actions, effect refugee outflows.

Refugees and Receiving States

Contemporary refugee law jurisprudence seems awfully obsessed with the responsibilities and liabilities of the host nations arising from the 1951 Convention Relating to the Status of Refugees and its Protocol of 1967. The principle of non-refoulement, now arguably a part of the corpus of customary international law, casts an obligation on a Receiving State to ensure safe haven for those who flee persecution and end up in that particular State. However, what is generally not taken into account is the fact that Receiving States, on most occasions, have to balance competing interests. While providing humanitarian aid and assistance must be a priority of all nations, domestic social order and issues of allocation of finite resources does not always allow countries to take in refugees in large number. Factors such as availability of finite resources, economic stability and social cohesiveness need to be taken into account before refugees are allowed to enter the boundaries of a particular nation. To sum it up all, there is adequate provision in international law which make receiving States accountable to refugees. What remains ambiguous, however, is the liability of those States which indulge in gross violation of human rights, force their citizens to flee their territory and therefore impose unwanted social and economic burden on the receiving States.


Refugees and Countries of Origin: The Traditional Position


Traditionally, international law makes Countries of Origin liable only to refugees for loss and damage caused to their property. In its Resolution 194(III) of 1948, the General Assembly of the United Nations clearly laid down that those refugees, who choose not to return to their parent countries, are entitled to receive compensation under principles of international law or equity. This right of the refugees has been reaffirmed in many subsequent resolutions of the General Assembly. Recent trend in realpolitik suggests that only few countries such as Canada, which are in dire need of immigrants in order to replace a population that is growing old, consider refugees an asset. For most countries in Europe or South Asia, refugees bring burden- social as well as economic. Such events pose a rudimentary question- Is there anything in international law which can compel regimes, which effect refugee outflows and cause tangible harms to other States, to make reparations for the damage caused to such other States?                    


Towards a Regime of Reparation: Establishing a cause of action


 The fundamental premise of Articles on State Responsibility, adopted by the International Law Commission in 2001, is that international responsibility of a State is only attracted when it commits an internationally wrongful act. The Articles further lay down that a State found internationally responsible is obligated to make full reparation to the injured State, for all material and moral damage caused by its wrongful act.

It can be argued safely that there exists an obligation under customary international law to prevent creation of large refugee outflows. In its resolution 41/32, the General Assembly confirmed that such a duty exists under international law after taking into account a report prepared by a Group of Governmental Experts. Customary international law also mandates States to respect the territorial integrity of other States and not interfere in their internal affairs. Prominent refugee jurists such as Guy S. Goodwin-Gill and Luke T. Lee suggest that refugee outflows are usually the consequences of ‘refugee-generating’ policies of an oppressive State. Plight of the Rohingya of Myanmar stands out in this case. Military excesses in the region and riots have forced thousands of members of this religious minority to flee to neighbouring countries such as Indonesia, Thailand and Malaysia. Most of these countries have refused to grant asylum to the Rohingya, citing reasons of possible cultural and ethnic clashes and economic costs.

When refugees cross borders and enter the territory of a receiving State, their presence forces that State to alter its internal and external policies. Thus, acts committed by the State of Origin, on its own people and in its own territory end up affecting the sovereignty of the receiving State. The doctrine of abuse of rights, widely recognized by nations as a general principle of law, prohibits exercise of rights by States in a manner which undermines interests of other States. Furthermore, by application of the principle propounded in the famous Trail Smelter arbitration, responsibility of the State of Origin would arise from the control and use of its territory in a manner which caused injury to the territory to the other State. A clear cause of action can therefore be established against the State of Origin and an appropriate material remedy, in the former of restitution or compensation, can be sought by the Receiving States or States in a court of law.

Conclusion
           
In the famous words of Luke T. Lee, regimes which create refugees, actually indulge in violation of all the rights guaranteed under the Universal Declaration of Human Rights. The fact that most of these regimes go scot-free and do no bear any costs of their actions does not help in finding a viable solution to the refugee situation all across the globe. All countries answer to incentives and therefore, a regime of reparation is in the interest of all stakeholders.