This Thesis is a study on the law and practice of international cooperation and responsibility sharing for refugees, both as it is and as it should be, with a strong focus on the latter. Despite the existence of a general duty of states to cooperate to protect refugees in international law, there is no subsequent positive obligation of responsibility sharing, namely any assistance to overwhelmed refugee host countries remains at the discretion of states. This has been widely acknowledged to constitute a normative gap of the Refugee Convention. In practice, this gap has been responsible for the arbitrary allocation of refugee protection responsibilities between states on the basis of accidents of geography. This arbitrary allocation is further exacerbated by the existence of a virtual ‘Great Wall’ built of sophisticated non-entrée measures and interstate arrangements that seek to deter refugees and confine protection in the Global South, where the majority of refugees originate and is hosted.
The thesis argues that the normative gap of the Refugee Convention cannot be satisfactorily addressed without a codified responsibility sharing obligation in international law. In moving towards responsibility sharing obligations, the thesis takes guidance from recent global refugee policy instruments that implicitly engage with the language of ‘common but differentiated responsibilities and respective capabilities’ (CBDRRC), a concept and a principle of international environmental law.
As a way of unlocking the true potential of a CBDRRC-guided framework, the thesis studies the principle and the logic of differentiated responsibilities in international environmental law, in order to understand the concept and draw insights from its operationalisation in the international climate change law regime. The parallel study of international environmental law is illuminating. On a theoretical level, international environmental law has gone the furthest in relation to a fairness debate and has sought to balance conflicting interests and existing inequities between states within legal arrangements. On a technical-legal design level, these multilateral responsibility sharing regimes are facilitative and flexible, reducing the sovereignty costs of entering into a binding agreement and therefore appealing to states. Crucially, the study of the international legal regime on climate change has revealed that the heterogenous interests of states can be accommodated in international law under the right architecture. To this end, fairness considerations have a structural role to play in the legal design process.
In light of these findings, the thesis proposes the adoption of a protocol on responsibility sharing that would put in place a principled yet pragmatic legal framework that would codify a light package of minimalist and differentiated, responsibility sharing obligations implemented bottom up. Focusing on questions of legal design, the thesis explores in detail the nature of the legal obligations that would best suit responsibility sharing in international refugee law.
All this is done through adopting an ‘enlightened positivist’ methodology to the study of international refugee law. This softer form of legal positivism claims that the protection of refugees reflects a community interest in international law which is served by the Refugee Convention. Enlightened positivism provides the international lawyer with the methodological tools to put forward de lege ferenda arguments for the development of international refugee law without however losing sight of the international system of sovereign but unequal states in which the international refugee regime operates. Finally, since international law can only be part to the solution of the refugee challenge, the study concludes with ways to build the necessary sustained political will required, towards a challenging but worthwhile undertaking.