UNHCR’s Forum
&
Executive Committee
Basic human rights principles applicable to
responsibility- and burden-sharing
arrangements
1. Introduction
All measures of international cooperation in the field of refugee protection, including
agreements reached within the context of Convention Plus and the High Commissioner’s
Forum and other international or regional agreements, must have as their principal aim the
furtherance of the human rights of refugees. If they do not, Amnesty International considers
that such measures would be contrary to the purpose and spirit of the 1951 Convention
relating to the Status of Refugees (the Refugee Convention) and the regime of refugee
protection upon which it is founded.
In its Preamble, the Refugee Convention provides a reminder of the principle that all human
beings shall enjoy fundamental rights and freedoms without discrimination. It refers to the
Universal Declaration of Human Rights and the UN Charter, and states that the UN “has, on
various occasions, manifested its profound concern for refugees and endeavoured to assure
refugees the widest possible exercise of these fundamental rights and freedoms”.
The achievement of “equitable” responsibility- and burden-sharing is one of the six goals of
the Agenda for Protection’s programme of action. To share burdens and responsibilities
“more equitably” is not only a goal, it is also a cross-cutting theme of the Agenda for
Protection.1
At the inaugural meeting of the High Commissioner’s Forum in June 2003, the UN High
Commissioner for Refugees, Ruud Lubbers said that “[t]he African Group’s proposal to
develop a framework of basic principles applying to burden-sharing is […] interesting. A
document of this sort could constitute a ‘preamble’ to any future comprehensive solutions
arrangements. This idea certainly merits further reflection”. 2 The non-exhaustive list of
principles in part 3 of this paper is Amnesty International’s contribution to this debate.
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Basic human rights principles for responsibility- and burden-sharing arrangements
2. The concept of responsibility- and burden-sharing
The terms ‘responsibility-sharing’ and ‘burden-sharing’ often have been used in the refugee
discourse to denote equivalent meanings. 3 Yet, whereas burden-sharing arguably can be
derived from the Preamble to the 1951 Convention, the content of “responsibility” in the term
‘responsibility-sharing’ is less clear.
The Preamble to the 1951 Convention provides guidance as to the content and basis of the
concept of burden-sharing when it speaks of the “unduly heavy burden” (emphasis added) that
granting asylum places on “certain countries” (emphasis added) and the need for states to
engage in international cooperation to relieve such a burden.4
In order to ameliorate some of the conceptual imprecision surrounding the concept of
‘responsibility-sharing’, for the purposes of this paper, ‘responsibility’ is taken to mean a
state’s legal responsibility to admit and protect refugees. ‘Responsibility-sharing’ is equated
with ‘burden-sharing’. Amnesty International believes that it is important to make this
distinction because the legal character of states’ responsibilities towards refugees is
necessarily different to the legal character of states’ engagement with one another (in
international cooperation) for the purposes of sharing what the Refugee Convention describes
as ‘burdens’ 5 . Amnesty International is concerned that this conceptual imprecision has
resulted in a practical blurring of the distinction between on the one hand ‘state responsibility’
which is derived from obligations of states towards refugees on their territory or under their
effective control, and on the other ‘responsibility- and burden-sharing’ which is primarily
about states’ obligations to cooperate with one another in order to find permanent solutions to
the problems of refugees.6 Necessarily, the latter obligation must maintain the centrality of
refugee protection and be exercised in a manner which is consistent with and indeed promotes
state responsibility to protect refugees.7
In this regard, Amnesty International recognizes that while it may not be necessary that
international cooperation arrangements have a strictly legal character as such, the organization
underscores that a state entering into negotiations on an international cooperation agreement
is nonetheless obliged to ensure that any international or regional cooperation agreements are
consistent with its obligations under international refugee and human rights law.
3. Basic human rights principles applicable to responsibility- and
burden-sharing arrangements
Given that the international refugee protection regime is intended primarily to uphold the
individual human rights of refugees it follows that any agreement designed to improve
refugee protection worldwide and to facilitate the resolution of refugee problems must be
premised explicitly on international human rights and refugee law, and, as applicable,
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international humanitarian law. Amnesty International therefore proposes that the following
core principles provide a framework within which any special agreements or generic
undertakings (‘Arrangements’) are developed, and should, for example, form the fundamental
basis of any agreement under the auspices of Convention Plus:
1. Arrangements must be consistent with international refugee and human rights law.
The contents and purpose of ‘Arrangements’ must
a. uphold the right to seek and enjoy asylum from persecution;8
b. accord with a state’s obligations under international refugee law, including
but not limited to the principle of non-refoulement.9
c. comply with international human rights law; in particular, Arrangements
should in all cases respect fundamental human rights, including the right to
an adequate standard of living, the right to non-discrimination, the right to
family unity, the principle of the best interests of the child and the rights to
privacy and security.10
2. Arrangements must include gender and age considerations. Arrangements should
take into account the specific protection needs of the affected population, including,
but not limited to, specific protection needs based on gender and age and other
status.11
3. Arrangements must ensure the voluntary character of solutions. Arrangements
must uphold a refugee’s right to choose to return to their home, or to choose to avail
themselves of alternative solutions provided for by an Arrangement. In particular, no
arrangements should permit – either implicitly or explicitly – forced population
transfers (within a territory or across borders) in a manner inconsistent with
international law 12 , collective or mass expulsion 13 or arbitrary detention or other
similar severe restrictions of movement.14
4. Arrangements must preserve the right to an effective remedy. Arrangements must
uphold the right of a refugee to an effective remedy for violations of their rights under
international refugee and human rights law by states party to such an arrangement.
5. Arrangements must be consistent with international protection and human rights
obligations of partners. Arrangements must be in accordance with the protection
mandates and human rights responsibilities of inter-governmental organizations,
international agencies, non-governmental organizations or other non-state actors.
Arrangements should, as necessary, establish mechanisms to allow individuals to
submit complaints and seek remedies for human rights abuses perpetrated by such
actors.
6. Arrangements must ensure effective protection. Arrangements should ensure that
individual refugees will in all cases be able to enjoy effective protection, including
access to durable solutions, and in particular in cases where the grant of temporary
asylum or refugee protection within a specific territory forms part of an Arrangement.
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Basic human rights principles for responsibility- and burden-sharing arrangements
7. Arrangements must apply without discrimination. All parties to Arrangements
should, both at the outset, and at all stages during their implementation, ensure that
individuals or groups are able to benefit from the solutions provided for under the
Arrangement without discrimination on the basis of their citizenship or nationality,
ethnicity, religion, political opinion, gender, age, sexual orientation, state of health or
other status, such as place of residence.
4. Recommendations
Refugee protection must be central to any special agreements or generic undertakings on
responsibility- and burden-sharing. In addition, Amnesty International believes that priority
(for development) should be given to resolving protracted and/or complex refugee situations
and that special agreements and undertakings should be aimed at relieving the undue burden
for those countries having difficulty in granting or continuing to grant asylum to refugees,
normally in situations of mass influx.15
Amnesty International therefore recommends that:
The Basic human rights principles applicable to responsibility- and burden-sharing set out in
this document:
i.
provide a basis for any future special agreements or generic understandings within the
Convention Plus framework; and/or
ii.
provide a basis for a separate generic understanding within the Convention Plus
framework; and/or
iii.
inform discussions surrounding the adoption of an Executive Committee Conclusion
setting out framework considerations for responsibility-sharing in mass-influx
situations.
1
Prior to the adoption of the Agenda for Protection, responsibility- and burden-sharing was a crosscutting theme also for the Global Consultations on International Protection (Global Consultations).
Responsibility- and burden-sharing is also a key element of the Declaration adopted at the Ministerial
Meeting of States Parties in Geneva in December 2001.
2
High Commissioner’s Summary of the Inaugural Meeting of the Forum, 27 June 2003.
3
See for example European Council on Refugees and Exiles (ECRE), Position on Sharing the
Responsibility: Protecting Refugees and Displaced Persons in the context of Large Scale Arrivals,
March 1996. Also see, for example, UNHCR, Mechanisms of International Cooperation to Share
Responsibilities and Burdens in Mass Influx Situations (EC/GC/01/7), 1st Meeting of Global
Consultations on International Protection, 19 February 2001.
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4
From the Preamble: “[T]he grant of asylum may place unduly heavy burdens on certain countries, and
[…] a satisfactory solution of a problem of which the United Nations has recognized the internationalscope and nature cannot therefore be achieved without international co-operation”
5
In making this distinction, we recognise that there are good reasons why ‘burden-sharing’ should
assume a more positive character by use of the term ‘responsibility-sharing’.
6
See Statute of the United Nations High Commissioner for Refugees paragraph 1(1) and the fourth
subparagraph of the Preamble to the 1951 Refugee Convention. These obligations derive also from
state practice as well as Conclusions of the Executive Committee of the High Commissioner’s
Programme, negotiated and adopted by states.
7
The second subparagraph of the Preamble to the 1951 Refugee Convention.
8
Article 14 of the 1948 Universal Declaration of Human Rights.
9
“[A]ccess to asylum and the meeting by States of their protection obligations is not dependent on the
existence of responsibility or burden-sharing measures first being in place”. Chairman’s Summary, 1st
Meeting of Global Consultations, Protection of Refugees in Situations of Mass Influx, 8–9 March 2001.
10
See e.g. the International Covenant on Civil and Political Rights (ICCPR), the International
Covenant on Economic, Social and Cultural Rights, and the Convention on the Rights of the Child.
11
See e.g. Guidelines on the Protection of Refugee Women, UNHCR July 1991, Introduction paragraph
6.
12
See e.g. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the
Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977, Article 17.
13
Article 13 of the ICCPR. The Human Rights Committee in General Comment 15 to the ICCPR, The
position of aliens under the Covenant (Twenty-seventh session, 1986), says that “… article 13 would
not be satisfied with laws or decisions providing for collective or mass expulsions.”
14
See e.g. Article 31 of the Refugee Convention; EXCOM Conclusion no. 44 (XXXVII) on Detention
of Refugees and Asylum-seekers; UNHCR’s Guidelines on Applicable Criteria and Standards relating
to the Detention of Asylum-Seekers, February 1999; UN Commission on Human Rights Working
Group on Arbitrary Detention: Deliberation no 5: Body of Principles for the Protection of All Persons
under Any Form of Detention or Imprisonment regarding the situation of immigrants and asylum
seekers, (UN Doc. E/CN.4/2000/4/Annex 2 (1999)).
15
See 1951 preamble as quoted above. See also 1967 Declaration on Territorial Asylum, General
Assembly resolution 2312 (XXII) of 14 December 1967. Article 2(2) and the 1969 OAU Convention
on Specific Aspects of Refugee Problem in Africa, Article 2(4) and EXCOM Conclusion No. 22 (XXXII)
on Protection of Asylum-Seekers in Situations of Large-Scale Influx, 1981.
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