International Journal of Refugee Law, 2016, Vol. 28, No. 4, 637–655
doi:10.1093/ijrl/eew037
The Duty to Rescue Refugees
Jean-François Durieux*
A B ST R A CT
International refugee law is ill-equipped to deal with large-scale movements of refugees
as a solidarity matter. Through work spanning three decades, Guy S Goodwin-Gill has
diagnosed this problem and developed a remedial doctrine around the principle of ‘temporary refuge’. This article offers a critical reflection on this doctrine, arguing that, as long
as emphasis is placed on non-refoulement as the primary duty of frontline States, they will
contest a regime they perceive as fundamentally unfair. The general duty is not to admit
refugees on the territory of a particular State, much less to refrain from returning them to
risk, but to rescue them from imminent peril. This ‘rescue’ paradigm, building upon the
dominant discourse of ‘disaster’ and ‘emergency’, can bolster the international refugee
regime in several ways. The article surveys the international regime of rescue at sea as a
framework of reference, and explores the potential of international disaster response law,
international humanitarian law, and the ‘responsibility to protect’ doctrine for framing
a collective duty to rescue refugees. While there is no obvious ‘home’ for such a duty,
it is possible to sketch out a procedural/institutional approach to it, revolving around a
revamped model of comprehensive plan of action.
1. I N T RO D U CT I O N A N D B A C KG RO U N D
The purpose of this article is to sketch the contours of a collective duty to rescue as a
legal concept underpinning the international refugee regime. This exercise is largely
inspired by the scholarship of Guy S Goodwin-Gill, notably his writings on mass influx
and temporary refuge. At the same time, it is a sequel to an article I wrote a couple
of years ago, in which I tried to elucidate the moral and ethical triggers that explain
contemporary asylum practices and underlying representations of the ‘refugee’.1 It may
therefore be useful to retrace the relevant findings of that research.
*
1
Senior Research Associate and course convenor, Refugee Law Initiative, University of London;
Director, International Refugee and Migration Law Programme, International Institute of
Humanitarian Law, Sanremo, Italy. Many thanks to Violeta Moreno-Lax, Santiago Villalpando,
and David Fisher for their advice in the first stages of drafting, and to participants of the international gathering to celebrate the scholarship of Professor Guy S Goodwin-Gill, Oxford, 15 Apr
2016, for their insightful comments on my paper as presented on that occasion.
J-F Durieux, ‘Three Asylum Paradigms’ (2013) 20 International Journal on Minority and Group
Rights 147.
© The Author (2016). Published by Oxford University Press. All rights reserved. For Permissions please email: journals.
[email protected]
• 637
638 • The Duty to Rescue Refugees
In asking why refugees exist as a normative category, I was interested in revealing
a positive representation that would separate refugees from the amorphous group of
those aliens whom we simply cannot deport. It seemed obvious to me that, whether
from an ethical or legal standpoint, the refugee category only makes sense if it commands positive action. As David Martin put it graphically, the concept of ‘refugee’
denotes ‘a call to action, a challenge to humanitarian response, an invitation to roll up
one’s sleeves and find ways to help’.2 I first engaged with the traditional paradigm that
describes duties owed to refugees in terms of ‘impartialist vs partialist accounts of membership and obligation’.3 This ‘affinity paradigm’, as I called it, is still at work in today’s
world, and it is solidly rooted in law through the 1951 Refugee Convention. Not least
through the defining concept of persecution, many refugees can still be regarded as ‘the
moral comrade[s] of a liberal citizen’,4 as champions of a cause, as the embodiment of
values we cherish as part of our own identity. I contend, however, that this paradigm
stops considerably short of exhausting the reality of contemporary refugee flows and
responses thereto. Large numbers of refugees do not feel welcome where they are, yet
no alternative community is claiming them as ‘moral comrades’. This reality points to
the existence of a concurrent paradigm, within which the refugee is represented, not as
a champion, but as a victim. Towards victims of disaster and people in distress we certainly feel a moral duty to act in a certain way, but this compulsion is not influenced by
the place these victims may physically or symbolically occupy within our community.
What makes some (possibly most) refugees victims, as opposed to champions?
There is no simple answer to this question. Physical distance explains in part why it
is hard to feel empathy, let alone affinity, with refugees ‘happening’ at the other end of
the world. On the other hand, it would be wrong to assume that geographic proximity
necessarily breeds affinity. As a matter of fact, the camps in which the majority of ‘refugees as victims’ are required to live constitute a direct and deliberate challenge to this
assumption: if the refugee camp is an enduring feature of humanitarian response, it is
because it conjures up the fictional image of a no-man’s-land, an extraterritorial enclave
immune from the political membership debate. In the final analysis, it is probably numbers that matter the most. This is not to say that ‘victim’ cannot be used in the singular,
or that champions are necessarily unique. It is hard to dispute, however, that the ‘massification’ of flows erodes the affinity which receiving communities may feel vis à vis
refugees, whether they hail from neighbouring or from distant countries. It is hardly
2
3
4
DA Martin, ‘The New Asylum Seekers’ in DA Martin (ed), The New Asylum Seekers: Refugee Law
in the 1980s (Kluwer 1988) 9. While the prohibition to return refugees to the danger they have
fled is inherent in all representations of the ‘refugee’, it is not what gives them moral or political
strength; and, to the extent that a non-return paradigm exists independently, it is unclear whether
the label ‘refugee’ can be affixed onto its beneficiaries.
C Brown, ‘The Only Thinkable Figure? Ethical and Normative Approaches to Refugees in
International Relations’ in A Betts and G Loescher (eds), Refugees in International Relations
(OUP 2011) 159. Brown observes that this approach ‘is to all intents and purposes irrelevant to
the refugee problems that most of the world faces’.
M Walzer, ‘The Distribution of Membership’ in PG Brown and H Shue (eds), Boundaries:
National Autonomy and its Limits (Rowman and Littlefield 1981) 21. See also P Singer, Practical
Ethics (2nd edn, CUP 1993) ch 9.
The Duty to Rescue Refugees • 639
surprising, therefore, that traditional refugee law, centred on the 1951 Convention,
should be ill-equipped to deal with mass influxes of refugees.5 Through work spanning
three decades, Goodwin-Gill has not only diagnosed these legal shortcomings, but has
also developed a remedial doctrine around the principle of ‘temporary refuge’. In this
article I intend, first, to offer a few critical reflections on this doctrine; then, to posit a
‘rescue’ paradigm as an alternative approach, building upon the discourse of ‘disaster’
and ‘emergency’, and to show how this approach can bolster the international refugee
regime; and finally, to frame a collective duty to rescue refugees within extant as well as
putative legal and institutional frameworks.
2. N O N -R E F O U L E M E N T T H RO U G H T I M E A N D
T E M P O R A RY R E F U G E
Respect for the norm of non-refoulement in mass influx situations comes at a price: the
trade-off for accepting the obligation to admit large numbers is ‘a de facto suspension
of all but the most immediate and compelling protections provided by the [1951]
Convention’.6 Thus, Goodwin-Gill notes, non-refoulement extends through time, and
refugees are in essence left in a legal limbo.7 In the latest edition of his opus, co-authored
with Jane McAdam, Goodwin-Gill reminds us that in the case of large-scale movements, there cannot be either a presumption or a reasonable expectation that a local
durable solution is forthcoming. Building upon his earlier work, he invokes a dynamic
concept of ‘temporary refuge’ as the practical consequence of non-refoulement through
time, providing ‘a platform upon which to build principles for refugees pending a durable solution, whereby minimum rights and standards of treatment may be secured’.8
Goodwin-Gill’s writings on ‘temporary refuge’ in mass influx situations are illuminating in several respects. To start with, the premises of temporary refuge have been
confirmed, time and time again, by the practice of States: it is hardly disputable today
that States in all parts of the world admit refugees, regardless of numbers, in cases of
grave and urgent necessity; that they do so with opinio juris; and that their responses
are usually not constrained by the niceties of the refugee definition in the 1951
Convention, so that refugees in the broader category also benefit from non-refoulement,
both immediately and through time. The truly innovative part of the temporary refuge
theory resides, however, in the normative nexus between the responsibilities of frontline States – those immediately impacted by a mass influx of refugees – and those of the
international community at large. Non-refoulement through time is posited as ‘the core
element both promoting admission and protection, and simultaneously emphasizing the
5
6
7
8
Durieux (n 1) 156: ‘To deliberately exercise their prerogative to admit is precisely what states
parties to the 1951 Convention do when they recognise refugees …. Surely the drafters of the
treaty had in mind that recognition as a refugee would automatically entail asylum in the sense of
lawful [durable] residence’.
J-F Durieux and J McAdam, ‘Non-Refoulement through Time: The Case for a Derogation Clause
to the Refugee Convention in Mass Influx Emergencies’ (2004) 16 IJRL 4, 13.
GS Goodwin-Gill, The Refugee in International Law (2nd edn, OUP 1996) 196.
GS Goodwin-Gill and J McAdam, The Refugee in International Law (3rd edn, OUP 2007) 343.
The norm of temporary refuge was first elucidated by Goodwin-Gill in, GS Goodwin-Gill, ‘NonRefoulement and the New Asylum Seekers’ (1986) 26 Virginia Journal of International Law 897.
640 • The Duty to Rescue Refugees
responsibility of nations at large to find [durable] solutions’.9 This is because ‘in admitting large numbers of persons in need of protection and in scrupulously observing
non-refoulement, the State of first admission can be seen as acting on behalf of the international community’.10 In this proposition, it is the peremptory character of the nonrefoulement norm – in its modality of non-rejection at the border – that makes it capable
of triggering a collective response of solidarity with both the refugees and the ‘State of
first admission’. It is important to highlight that the concept of solidarity inherent in
this proposition is substantially different from the Roman law concept of obligatio in
solidum: the latter speaks to a shared duty that can be exhausted by the performance of
any one of the duty-bearers, whereas for our purposes the frontline State’s action, carried out as a matter of obligation, triggers a collective, or at a minimum a shared, duty.
This is a very promising line of thought.
A number of difficulties linger, nonetheless, if the emphasis is put on non-refoulement
as the primary duty of the frontline State. First, the inescapable territorial dimension
of non-refoulement gives prominence to immigration control concerns, grounded in
questions of membership and national identity. This tends to obfuscate the collective
character of the duty, not least because those States that enjoy the luxury of lying relatively far away from refugee crises tend to evade their responsibilities by equating geographic proximity with affinity – a dubious assumption which I have denounced above.
Secondly, there comes the time dimension: non-refoulement through time can all too easily be represented as a sequence of distinct obligations, rather than successive manifestations of a single collective duty. The ‘protection before burden-sharing tradition’ not
only ensures that admission is not made contingent upon a showing of international
solidarity, but indeed posits the latter as a consequence of the former.11 This tradition
clearly contributes to deepening, rather than bridging, the gap between the peremptory
nature of the non-refoulement rule and the discretionary character of international solidarity construed as ‘burden sharing’. Thus, space and time conspire to design a system of
obligations that is perceived as unfair, and therefore contested, by States directly facing
mass refugee influxes. I need not dwell on the deleterious impact of this real, as well as
perceived, imbalance on the survival of the international refugee regime.12 In effect, there
9
10
11
12
ibid 344 (emphasis added).
ibid.
N Coleman, ‘Non-Refoulement Revised: Renewed Review of the Status of Non-Refoulement as
Customary International Law’ (2003) 5 EJML 23. See also fn 413 and related text in GoodwinGill and McAdam (n 8) 344.
There is a sizeable political science and/or legal scholarship analysing the nature and implications of this
‘responsibility gap’. See, among others, A Suhrke, ‘Burden-Sharing During Refugee Emergencies: The
Logic of Collective Versus National Action’ (1998) 11 JRS 396; JC Hathaway and RA Neve, ‘Making
International Refugee Law Relevant Again: A Proposal for Collectivized and Solution-Oriented
Protection’ (1997) 10 Harvard Human Rights Journal 115; PH Schuck, ‘Refugee Burden-Sharing:
A Modest Proposal’ (1997) 22 Yale Journal of International Law 243; D Anker, J Fitzpatrick and
A Shacknove, ‘Crisis and Cure: A Reply to Hathaway, Neve and Schuck’ (1998) 11 Harvard Human
Rights Journal 295; and more recently: T Kritzman-Amir, ‘Not in My Backyard: On the Morality of
Responsibility Sharing in Refugee Law’ (2009) 34 Brooklyn Journal of International Law 355; G Noll,
‘Risky Games? A Theoretical Approach to Burden-Sharing in the Asylum Field’ (2003) 16 JRS 236;
A Betts, ‘International Cooperation in the Refugee Regime’ in Betts and Loescher (n 3) 58.
The Duty to Rescue Refugees • 641
are so many tensions and fractures within this regime that it is increasingly difficult to
visualize the international concern and the collective sense of obligation, without which,
I would argue, it does not deserve to be called a legal regime.
In his most recent reflections on the subject, Goodwin-Gill suggests that ‘a good case
can be made for de-linking the concepts of refuge and non-refoulement, and in developing refuge itself as the overarching principle of protection’.13 His original argument for
‘non-refoulement through time’ was, in any event, ‘located against a broad, normative
background, which included … that much older body of principles encompassing the
specific needs of those in distress by reason of force majeure’.14 Could one, therefore,
take precisely that ‘body of principles’ as the true foundation of the legal regime? This
is the question that the remainder of this article addresses, in search of signs pointing to
a collective duty to rescue refugees as people in distress.
3. T H E R E S C U E PA R A D I G M I N D I S CO U R S E A N D P R A CT I C E
My intention is definitely not to dissolve the singular identity of refugees, as a special
category of people of concern to international law, into an undifferentiated mass of ‘disaster victims’. Rather, it is to make the best – which is arguably better than the status
quo described in my introduction – of a reality: with very few exceptions, every new
refugee situation is born as an ‘emergency’, and the international response is largely
framed in the rhetoric, and uses the tools, of disaster response. The United Nations
High Commissioner for Refugees (UNHCR) has defined a refugee emergency as ‘a
situation in which the life or well-being of refugees will be threatened unless immediate
and appropriate action is taken’.15 Emergency and disaster are closely connected concepts, the former being defined by the World Health Organization (WHO) as a ‘situation[] that arise[s] out of [a] disaster[], in which the affected community’s ability to
cope has been overwhelmed, and where rapid and effective action is required to prevent
further loss of life and livelihood’.16 The same source goes on to define ‘complex emergencies’ as ‘situations of disrupted livelihoods and threats to life produced by warfare,
civil disturbance and large-scale movements of people, in which any emergency response
has to be conducted in a difficult political and security environment’.17 That refugees are
13
14
15
16
17
GS Goodwin-Gill, ‘Non-Refoulement, Temporary Refuge, and the “New” Asylum Seekers’
in DJ Cantor and J-F Durieux (eds), Refuge from Inhumanity? War Refugees and International
Humanitarian Law (Brill/Nijhoff 2014) 458.
ibid 440. On the principle of humanity, situations of distress, and their relationship to forced
migration, see also, J McAdam, Climate Change, Forced Migration, and International Law (OUP
2012) 261–64, and references therein.
UNHCR, Handbook for Emergencies (3rd edn, 2007) 4.
WHO, ‘Environmental Health in Emergencies and Disasters: A Practical Guide’ (2002)
6 <http://apps.who.int/iris/bitstream/10665/42561/1/9241545410_eng.pdf>.
ibid (emphasis added). According to the International Federation of Red Cross and Red
Crescent Societies (IFRC), ‘there seems to be a tendency in newer international instruments to
view and define the term “disaster” quite broadly’. IFRC, ‘Law and Legal Issues in International
Disaster Response: A Desk Study’ (2007) 22 <http://www.ifrc.org/PageFiles/125639/113600idrl-deskstudy-en.pdf>. For example, in 1998, the Tampere Convention defined ‘disaster’ as ‘a
serious disruption of the functioning of society, posing a significant, widespread threat to human
642 • The Duty to Rescue Refugees
persons compelled to flee from specific forms of man-made disaster is surely not a new
finding.18 What is relatively new, and growing, is the notion that refugees – as well as,
of course, internally displaced persons – are engulfed in emergencies that do not only
(as per WHO’s definition) arise out of disasters, but indeed constitute, in and by themselves, situations of acute distress. The language of emergency, with strong undertones
of disaster and distress, has become dominant in the political and policy discourse on
large-scale refugee flows.
While it may be deplored – not least because it tends to obfuscate the refugees’ own
agency – this conceptual shift is not entirely negative. To the contrary, it may be advantageous to frame the specificity of refugee situations in the (symbolic as well as technical) language of disaster and/or rescue, for the following reasons, among possibly more.
First, the disaster discourse has the effect of distorting or challenging a number of
concepts traditionally associated with refugee situations, especially those deriving from
a ‘migration control’ perspective on protection and solutions. Thus, in refugee emergencies, an international border signifies the critical line between danger and safety,
more than the place where sovereignties meet and migration control is exercised.
Likewise, the concept of ‘evacuation’, which is central to disaster response, offers an
insightful alternative to ‘resettlement’ to describe what refugees need when they cannot
find safety in the first country they reach – a country traditionally designated through
another misnomer, namely ‘country of first asylum’.
Secondly, the word ‘emergency’ triggers a broader and, so to speak, purer sense of
solidarity than the politically charged phrase ‘refugee crisis’. The imperative of saving
lives from imminent danger has translated into a sophisticated and highly effective disaster prevention and response architecture at the regional and international levels. One
cannot ignore that this machinery was mainly designed for natural disasters – a context
within which preparedness, early warning, and predictability of response are less controversial or problematic objectives than where displacement is a result of persecution
or armed conflict.19 Nonetheless, these mechanisms are already infiltrating refugee situations, by osmosis if nothing else: the best illustration of this reality is the emphasis
placed by major donors on the coordination of humanitarian efforts in all (including
18
19
life, health, property or the environment, whether caused by accident, nature or human activity,
and whether developing suddenly or as the result of complex long term processes’. In 2005, the
ASEAN Agreement on Disaster Management and Emergency Response determined that ‘disaster’ means ‘a serious disruption of the functioning of a community or a society causing widespread human, material, economic or environmental losses’. According to the Red Cross/Red
Crescent and NGO Code of Conduct (1995), a disaster is ‘a calamitous event resulting in loss of
life, great human suffering and distress, and large scale material damage’.
The refugees and displaced persons of concern to UNHCR have been described by ECOSOC
as ‘victims of man-made disasters, requiring urgent humanitarian assistance’: ECOSOC res
2011(LXI), 2 Aug 1976.
Arguably, the ‘disaster’ approach to refugee protection may contribute to defusing the concerns
of States around ‘political’ causes of displacement, in the same way as ‘man-made disaster’ (in
ECOSOC resolutions) or ‘circumstances/events seriously disturbing public order’ (in the 1969
African Convention and in the 1984 Cartagena Declaration) have by-passed the accusatory language of ‘persecution’.
The Duty to Rescue Refugees • 643
refugee) emergencies, according to a standard model deemed to foster predictability,
hence enabling near-immediate collective response.20
Thirdly, by representing refugee influxes as ‘complex emergencies’, the international
community recognizes that cross-border displacement constitutes a disaster, not only
for the refugees-as-victims, but also for their hosts in frontline States. To come to
the rescue of refugees is also to demonstrate a commitment to ‘help the helpers’. In
this sense, ‘rescue’ is admission and burden sharing in the same breath, so to speak.
Conceived in these terms, collective emergency response overcomes the major flaws
detected in the original ‘non-refoulement through time’ paradigm: protection and burden sharing are no longer seen in a strict sequence, and geographic proximity or distance is no longer the main factor of empathy with the victims, who comprise refugees
as well as ‘affected’ communities.
Last, but definitely not least, there is at international law a well-developed framework of reference, namely that which governs the rescue of people in distress at sea.
Aside from its direct application to the protection of asylum seeking ‘boat people’, the
customary and treaty-based regime of rescue at sea contains a number of features that
are relevant to the definition of a collective duty to rescue refugees from imminent peril
more generally.21 One such feature is that contingency is tempered by a dedicated system of coordination among potential rescuers: the ship receiving the distress call or the
ship closest to the scene at that time may not be the one eventually sent to the rescue.
Furthermore, a rescue operation may actually be carried out by several actors, based on
comparative advantage. The duty is incumbent upon all, but it is exercised in a coordinated fashion – the role of rescue coordination centres being fundamental. Importantly,
coordination does not stop at the point of rescue: recent amendments to Safety of Life
at Sea (SOLAS) and Search and Rescue (SAR)22 also require that States coordinate and
cooperate to ensure that masters of ships embarking persons in distress are released from
their obligations with minimum further deviation from the ship’s intended voyage. If
frontline States (in a refugee emergency) are metaphorically ‘rescuing ships’, their own
interests must be taken care of by the international community at large. Possibly the
most relevant concept, however, is ‘delivery to a place of safety’, through which attention to the consequences of rescue at sea is gradually integrated into the legal regime.
A place of safety is ‘a location where rescue operations are considered to terminate’, and
where: (i) the survivors’ safety is no longer threatened; (ii) basic human needs (such
as food, shelter, and medical needs) can be met; and (iii) transportation arrangements
can be made for the survivors’ next or final destination.23 There are important cues to
be imported from this definition into the universe of refugee emergencies. It suggests,
20
21
22
23
See, eg, Office for the Coordination of Humanitarian Affairs (OCHA), ‘Reference Guide:
Normative Developments on the Coordination of Humanitarian Assistance in the General
Assembly and the Economic and Social Council’ (2nd edn, 2011).
For a more thorough analysis of these features and their sources, see Durieux (n 1) 163–65.
SOLAS refers to the 1974 International Convention for the Safety of Life at Sea, 1184 UNTS
278; SAR to the 1979 International Convention on Maritime Search and Rescue, 1405 UNTS
97. The amendments in question were introduced in 2004.
Annex to the 1979 SAR Convention, para 1.3.2; IMO Resolution MSC 167(78) ‘Guidelines on
the Treatment of Persons Rescued at Sea’ (2004) para 6.12.
644 • The Duty to Rescue Refugees
for example, that rejection at the border is not the only risk that international law seeks
to keep at bay: beyond safe crossing of a border, the duty to rescue refugees will not be
fulfilled satisfactorily until and unless safety in a broader sense is available to the refugees. Since Sufi and Elmi, we know for sure that a refugee camp is not necessarily a place
of safety – it may be a way-station, comparable to the deck of a rescuing ship, but not a
place where the rescue can be considered ‘terminated’.24
The paradigm of refugee rescue in emergencies derives its moral and legal force from
the same principles of humanity that underpin the international legal regime of rescue
at sea. Notice must be taken, therefore, of positive developments in the latter, which
point towards coordination of efforts in the performance of a collective duty, solidarity
among helpers, and the emergence of a norm of ‘rescue through time’. The notion of
‘delivery to a place of safety’ is a critical link in this continuum, and one that is especially
relevant to our purposes. It would be foolish, however, to suggest that the regime of rescue at sea, lex specialis for a very peculiar set of circumstances, can simply be transposed
to refugee emergencies. While this regime plays a role in framing a duty to rescue refugees qua refugees, our exploration cannot stop here. What other legal frameworks have
thrived on this ‘body of principles encompassing the specific needs of those in distress’,
to which Goodwin-Gill referred?
4. F R A M I N G T H E CO L L E CT I V E D U T Y TO R E S C U E R E F U G E E S
To any lawyer trained in a common law country, the ‘duty to rescue’ rings like a conundrum of tort law, which is traditionally resolved by an affirmation that law imposes no
duties upon individuals to save strangers in distress, even if they are proximately able
to do so.25 The absence of a duty of rescue at the individual level is intimately related to
the notion of the ‘social contract’: by granting the responsibility for security to a public
entity, law somehow relieves individuals from direct mutual responsibility, opening a
space for private life.26 It is also an illustration of the distinction between moral and
legal prescription. As I try to affirm a collective duty to rescue refugees, therefore, I face
two preliminary objections: first, it may seem a risky proposition – at least within a
common law context – to ‘elevate’ to the inter-State, multilateral level a duty, the existence of which is questioned in domestic law. I can respond to this objection by pointing
not only to civil law traditions, but indeed to the very ‘division of responsibilities’ inherent in social contract theory, whereby the State – and, by extension, the community
of States – can be vested by law with duties that cannot be claimed from individual
citizens. The second challenge is probably more serious: is it possible to translate the
‘abstract morality of “rescue” in limited social context (daily life) into a complex international environment, one in which, arguably, States have no moral principles, but only
24
25
26
Sufi and Elmi v United Kingdom, App Nos 8319/07 and 11449/07 (ECtHR, 28 June 2011) paras
267 and 292.
In civil law traditions, in contrast, one typically finds criminal provisions penalizing certain failures to rescue, such as non-assistance à personne en danger in French law.
A Ripstein, ‘Tort, the Division of Responsibility and the Law of Tort’ (2004) 72 Fordham Law
Review 1811; I Mann, ‘Killing by Omission’ (EJIL: Talk, 20 Apr 2016) <http://www.ejiltalk.
org/killing-by-omission/> with thanks to Itamar Mann for this reference.
The Duty to Rescue Refugees • 645
political, pragmatic interests’?27 Indeed, I acknowledge the real limitations of a moral/
ethical approach to scoping a collective duty to rescue at international law.28 In this section, therefore, I take my cues from existing international law frameworks and examine
whether and how they can nurture the development of a legal norm which, I hasten to
make clear, is still at a nascent stage.
It would seem illusory to try to construct a collective duty to rescue from within the
‘refugee law’ box. The 1951 Convention hints at international solidarity as a condition
of the system’s sustainability, but expresses it in non-binding form in the Preamble.29
On the whole, the Convention takes admission to a particular State for granted, and
remains silent on any individual, let alone collective, duty to grant asylum. While article 31(2) recognizes the practice of admission ‘in transit’, the only duty it stipulates is a
negative one, namely: to not obstruct the refugee’s application for admission elsewhere.
The African Refugee Convention adopts a resolutely more prescriptive approach,
allowing ‘an over-burdened Member State’ to appeal directly and through the African
Union to other Member States and through the OAU, and making it a duty – to wit, the
verb form ‘shall’ – for such other Member States ‘in the spirit of African solidarity and
international co-operation [to] take appropriate measures to lighten the burden’ of the
requesting State.30 With this formulation, echoing provisions of international disaster
relief law (as we shall see below), African refugee law comes close to stipulating a collective duty to protect refugees, based on a notion of ‘protection space’ co-extensive
with the continent itself. Not even the European Union has ventured this far into pooling protection space. What is lacking, sadly, is African State practice in implementing
this bold provision, as well as any reflection on its articulation with extra-continental
commitments to solidarity with over-burdened African States.
Moving away from refugee law, the following sub-sections briefly review three
potential candidates for alternative frameworks, namely: international disaster relief
law, international humanitarian law, and the ‘responsibility to protect’.
4.1 International disaster relief law (IDRL)
Considering the evocative power of the ‘disaster’ discourse in relation to refugees as
people in distress, ‘disaster law’ would seem to be a logical ‘box’ from within which to
frame the collective duty to rescue refugees. One must recognize, however, the limitations of this framework. To start with, in practice, refugee emergencies have thus
far been treated as falling outside the scope of IDRL instruments, even where these
explicitly cover ‘man-made disasters’. Furthermore, IDRL is characterized by a rather
dispersed framework of mostly bilateral and regional instruments.31 Few universal legal
standards are to be found, and, where they do exist, they tend to regulate rather narrow
27
28
29
30
31
Goodwin-Gill (n 13) 440, fn 31.
On this point, see Durieux (n 1) 161–64.
Preamble, para 4.
1969 Convention on the Specific Aspects of Refugee Problems in Africa, 1001 UNTS 45, art
II(4).
A comprehensive overview can be found in A de Guttry, ‘Surveying the Law’ in A de Guttry, M
Gestri and G Venturini (eds), International Disaster Response Law (Springer 2012) 3, as well as in
the IFRC study (n 17).
646 • The Duty to Rescue Refugees
sectors of disaster response activity, such as telecommunications or urban search and
rescue.32 Contrary to the expectations of the International Federation of Red Cross and
Red Crescent Societies (IFRC), the International Law Commission’s Draft Articles on
Protection of Persons in the event of Disasters, released in 2014, remain silent on the
customary lineage of disaster relief-related principles and norms.33 A strong candidate
for customary status might have been the international ‘duty to co-operate’ in draft
article 8. However, where IDRL affirms a duty to cooperate, it stresses the obligation
of States affected by a disaster to accept offers of assistance made by other States and
international organizations, and not to obstruct the delivery of international aid. This
version of the duty is obviously of minor relevance in the field of refugee emergencies,
in which it is the reluctance of distant States to come to the rescue that needs to be
overcome.
On this score, none of the agreements regulating such cooperation in Africa, the
Americas, or Asia make it obligatory for a contracting State to come to the rescue of
another party that is affected by a disaster.34 Within the EU, in contrast, mutual assistance is a matter of obligation since the entry into force of the Lisbon Treaty, which
introduced into the EU Treaties a ‘solidarity clause’: if a Member State is the victim of
a natural or man-made disaster,’[t]he Union and its Member States shall act jointly in a
spirit of solidarity. The Union shall mobilise all the instruments at its disposal … to: …
(b) assist a Member State in its territory, at the request of its political authorities’; and
‘[s]hould a Member State be … the victim of a … disaster, the other Member States shall
assist it at the request of its political authorities’.35 The problem with this clause – as with
much of EU law on solidarity, including the 2001 Temporary Protection Directive36 –
is implementation. Some Member States believe its open-ended formulation leaves it
32
33
34
35
36
See, eg, Tampere Convention on the Provision of Telecommunication Resources for Disaster
Mitigation and Relief Operations, 18 June 1998, 2296 UNTS 5; UNGA res 57/150 ‘Strengthening
the Effectiveness and Coordination of International Urban Search and Rescue Assistance’, 27 Feb
2003. The most widely ratified IDRL treaty is the Convention on Assistance in the Case of a
Nuclear Accident or Radiological Emergency of 26 Sept 1986, 1457 UNTS 133.
UN doc A/CN.4/L.831, 15 May 2014. See also IFRC (n 17) 22. In its comments on the draft
Articles, IFRC also deplores the lack of specificity on protection issues.
In some instances, though, the margin of discretion is narrow. See art 4 of the ASEAN Agreement
on Disaster Management and Emergency Response (26 July 2005): ‘In pursuing the objective of
this Agreement, the Parties shall … promptly respond to a request for assistance from an affected
Party’.
Treaty on the Functioning of the European Union [2008] OJ C 115/47, art 222 (emphasis
added).
Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary
protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences
thereof, 7 Aug 2001, OJ L 212. While there is no place in this article to dwell on this point, it is
deplorable that, when they need it the most, EU Member States have chosen to ignore the temporary protection standards and mechanisms developed specifically to deal with mass influxes of
persons in need of international protection. For a recent discussion, see J-F Durieux, ‘Temporary
Protection: Hovering at the Edges of Refugee Law’ (2014) 45 Netherlands Yearbook of
International Law 221.
The Duty to Rescue Refugees • 647
unclear as to how it should be used in practice. Even the EU institutions are keen to
emphasize it should be used as a last resort. Reflecting on the ongoing influx of refugees
and other migrants in Southern Europe, Rhinard and Ylander wonder: aren’t we at that
point already? This influx qualifies, in their view, as a ‘disaster’; and while ‘the EU’s
civil protection assistance program … has been requested by Slovenia, Hungary and
Croatia’ – and most recently Greece – ‘the Solidarity Clause could nevertheless be used
to mobilize a broader and more forceful approach to solidarity’.37 The Member States’
reluctance to apply their own supranational law and to act collectively seriously reduces
the appeal of a binding solidarity clause to States outside the EU, leaving IDRL with an
embryonic and rather ineffective ‘duty to rescue’.38
In practice, the thick web of bilateral treaties, soft law rules, and mechanisms that
compose IDRL have fostered predictability and timeliness of responses to disaster.
They surely raise an expectation of international solidarity with affected States, based
on a common humanitarian concern for actual and potential victims. There is no indication, however, that this legal framework is evolving towards a forceful statement of
collective duty in this regard. One may argue that such an evolution is not necessary,
insofar as natural disasters, at least major ones, in fact continue to trigger massive demonstrations of international solidarity. This line of argument leads, however, to the
rather sobering conclusion that IDRL is better off ‘without the refugees’. One is bound
to conclude that, beyond its symbolic appeal, IDRL does not offer fertile ground for the
development of a collective duty to rescue refugees.
4.2 International humanitarian law (IHL)
An IHL-based argument supporting a duty to rescue refugees takes a rather convoluted route, which very few scholars have attempted to map so far. Yet, there are
several good reasons to explore this avenue. To start with, most, if not all, ‘refugee
emergencies’ that have mobilized international responses in recent times are related
to the existence of an armed conflict (mostly of a non-international character) in the
refugees’ country of origin, and, more specifically, to a turn in the conflict at which
the civilian population is exposed to violations of IHL by one or more of the belligerents. It may therefore seem:
logical … to look for continuity of protection under international law: if the
only reasonable protection option for civilians … is to seek refuge across an
37
38
M Rhinard and N Ylander, ‘The Migration Crisis and the Question of Solidarity’ (TransCrisis, 6
Nov 2015) <http://www.transcrisis.eu/the-migration-crisis-and-the-question-of-solidarity/>.
To make things worse, a recent Commission document proposes a different legal basis, namely,
art 122 TFEU, for a solidarity mechanism that would bolster the Union’s capacity to provide
humanitarian assistance [without any hint of physical burden-sharing] within the EU: Proposal
for a Council Regulation on the provision of emergency support within the Union, 2 Mar 2016,
COM(2016) 115 final. The Explanatory Memorandum clearly situates this proposal within the
context of the ongoing ‘refugee crisis’ in Southern Europe: ‘Given immediate needs arising from
the current migration and refugee crisis, this assistance will as a priority support countries facing
large numbers of refugees and migrants but can also be used for any other emergency needs that
may arise.’
648 • The Duty to Rescue Refugees
international border, should we not define the scope of [refugee] protection
with one eye on the pertinent protection principles that apply within the conflict
zones?39
Furthermore, the legal significance of an IHL framework derives from the customary law character of many of its provisions; from the truly universal reach of the 1949
Geneva Conventions – currently 196 Contracting Parties – and from the fact that IHL
rules cannot be renounced or derogated from.
A commonly heard objection to bringing refugee protection under the IHL umbrella
is that IHL, which regulates the conduct of hostilities, imposes obligations on belligerents only. Thus, while refugees ‘in war’ are indeed protected by both international refugee law and IHL, the latter is silent about the plight of refugees ‘from war’, who for their
own safety escape the control of belligerents and find themselves outside a conflict area.
The above is, however, an incomplete representation of IHL’s scope. It is now widely
acknowledged that the responsibility of non-belligerent States – indeed, of all States – is
engaged by virtue of common article 1 (CA1) of the 1949 Geneva Conventions, which
reads, ‘The High Contracting Parties undertake to respect and ensure respect for the
present Convention in all circumstances’.40 According to the most recent International
Committee of the Red Cross (ICRC) Commentary, ‘the obligation to ensure respect
… has an external dimension’ whereby:
States, whether neutral, allied or enemy, must do everything reasonably in their
power to ensure respect for the Conventions by others that are Party to a conflict.
… This duty to ensure respect by others comprises both a negative and a positive
obligation. … Under the positive obligation, ... [non-belligerent States] must do
everything reasonably in their power to prevent and bring such violations to an
end.41
By ‘violations’, in this last sentence, one must understand not only grave breaches of
the four Geneva Conventions, but also possible violations of common article 3 (CA3),
that is, crimes committed in non-international armed conflicts.42 The argument I would
like to make is that all States have a CA1 duty to rescue victims of IHL violations, since,
39
40
41
42
J-F Durieux and DJ Cantor, ‘Refuge from Inhumanity? Canvassing the Issues’ in Cantor and
Durieux (n 13) 26. In the same volume, on the notion of a continuum between IHL and refugee
law, see S Jaquemet, ‘Expanding Refugee Protection though International Humanitarian Law:
Driving on a Highway or Walking near the Edge of the Abyss?’.
75 UNTS 31 (GC I); 75 UNTS 85 (GC II); 75 UNTS 135 (GC III); 75 UNTS 287 (GC IV).
ICRC, ‘Convention (I) for the Amelioration of the Condition of the Wounded and Sick in
Armed Forces in the Field. Geneva, 12 August 1949: Commentary of 2016’, paras 153–54. In
view of this external dimension, CA1 provides, ‘the nucleus for a system of collective responsibility’: L Boisson de Chazournes and L Condorelli, ‘Common Article 1 of the Geneva Conventions
revisited: Protecting Collective Interests’ (2000) 82 International Review of the Red Cross 68.
See AJ Zimmermann, ‘The Security Council and the Obligation to Prevent Genocide and War
Crimes’ (2012) 32 Polish Yearbook of International Law 307; R Ziegler, ‘Non-Refoulement
between “Common Article 1” and “Common Article 3”’ in Cantor and Durieux (n 13) 386.
The Duty to Rescue Refugees • 649
by removing them from the reach of perpetrators, this will effectively prevent further
violations.
Ziegler has convincingly laid out a variation of this argument: having asserted
that a prohibition on refoulement is implicit in the protections offered by CA3, he
observes that, ‘[n]on-belligerent States’ adherence to non-refoulement obligations
prevents … [the] potential victim from being exposed to CA3 violations’.43 This
clarifies the IHL-based obligation of frontline States in the event of a refugee influx.
Beyond these, though, Ziegler refrains from articulating a collective or universal
CA1 duty to admit or rescue refugees, arguing that those non-belligerent States that
are ‘confronted with persons displaced from armed conflict’ have a distinct capacity
to take specific lawful measures aimed at ensuring respect for IHL. Hence, ‘their
obligations are engaged in a materially different way than the [CA1] obligations of
other members of the international community’.44 Indeed, prudence is required in
defining the scope of a universal undertaking to ensure respect for IHL in all circumstances. Focarelli has pointed to the highly impractical, almost absurd, result of
interpreting CA1 as obliging all States ‘to take all possible (actually countless) lawful measures against the transgressor State’ and/or for the protection of potential
victims.45 On the other hand, it seems possible to argue that, in refugee emergencies
caused by serious violations of IHL, the frontline States indeed form the ‘second
ring’ of CA1 duty-bearers – the first one consisting of belligerents – but they are not
necessarily the last ring. Distant States may also have a distinct capacity to take, in
concert with frontline States, such specific lawful measures as, for example, coming
to the rescue of fleeing victims. CA1 is, in the words of the ICRC, a living provision,
the content of which ‘will be further concretized and operationalized in the decades
ahead’.46 Most importantly, perhaps, the ICRC reminds us that, while CA1, ‘does
not establish any primacy of collective measures over individual measures … the
particular gravity of certain violations of the Conventions may call for collective
measures, particularly within the framework of the UN’.47 Thus, where mass displacement of population is caused by egregious violations of CA3, ‘distinct capacity’
to rescue ceases to be the determining factor of attribution of the CA1 duty, or – at
a minimum – the lack of such capacity cannot be invoked by any State against the
adoption of and/or participation in collective rescue operations.
43
44
45
46
47
Ziegler (n 42) 408 (emphasis in original). It is worth noting that the recently updated ICRC
Commentary on the First Geneva Convention gives reason to Ziegler’s reading of CA3 as containing an implicit prohibition of refoulement to the risk of prohibited acts. Following Ziegler’s
innovative reasoning, the Commentary adds that such interpretation ‘is reinforced by the fact
that the absolute prohibition of torture, cruel treatment or outrages upon personal dignity in
common Article 3 should be interpreted “in light of the parallel provisions in human rights law”’:
ICRC (n 41) para 712. However, the Commentary stops short of extending this non-refoulement
obligation to non-belligerents.
Ziegler (n 42) 404.
C Focarelli, ‘Common Article 1 of the 1949 Geneva Conventions: A Soap Bubble?’ (2010) 21
EJIL 128, cited by Ziegler (n 43) 403–04.
ICRC (n 41) para 172.
ibid para 178.
650 • The Duty to Rescue Refugees
4.3 Responsibility to Protect (R2P)
The scant literature on the interface between the R2P doctrine and the international
protection of refugees can be divided into two categories. One strand attempts to harness the potential of R2P in order to expand either the competence of UNHCR, or the
responsibilities of States at large, towards internally displaced persons as well as, incidentally, so-called ‘war refugees’ not covered by the 1951 Refugee Convention’s definition. This is the approach adopted by Martin, Moore, and to some extent Barbour and
Gorlick.48 The latter, though, have one foot in the other category, represented chiefly by
Tendayi Achiume’s work on the Syrian refugee crisis.49 This strand sees refugee protection as a means of ‘shoring up [the] normative appeal’ of R2P and suggests that refugee
protection is ‘a good starting point to enacting R2P as [the measures it implies] are
devoid of the controversy surrounding military intervention’.50 Neither strand directly
addresses the question that preoccupies us here, namely, whether R2P can shape or
frame a collective duty to rescue refugees – albeit that the ‘refugees’ in question would
only be those fleeing a risk of ‘R2P crimes’.51
Yet, it is undisputed that R2P involves not only individual State obligations, but also
the responsibility of the international community as a whole; and this is indeed where
the doctrine adds value to pre-existing international law, as Arbour observed early on.52
On this score, Tendayi Achiume’s argument contains a number of useful insights. Her
thesis is that R2P can (and should) be invoked in support mode in order to ‘more sustainably and equitably distribute the cost of protecting Syrian refugees’.53 Thus, where
48
49
50
51
52
53
S Martin, ‘Forced Migration, the Refugee Regime and the Responsibility to Protect’ (2010)
2 Global Responsibility to Protect 38; J Moore, ‘Protection against the Forced Return of War
Refugees: An Interdisciplinary Consensus on Humanitarian Non-Refoulement’ in Cantor
and Durieux (n 13); B Barbour and B Gorlick, ‘Embracing the “Responsibility to Protect”:
A Repertoire of Measures Including Asylum for Potential Victims’ (2008) 20 IJRL 533.
E Tendayi Achiume, ‘Syria, Cost-Sharing and the Responsibility to Protect Refugees’ (2015) 100
Minnesota Law Review 687.
Barbour and Gorlick (n 48) 536.
Among the authors cited in this section, only Tendayi Achiume is unambiguous on the issue of
personal scope, admitting that R2P is ‘relevant only for a subset of the global refugee population’
since the 2005 World Summit Outcome documents ‘circumscribes [R2P] to populations at risk
from genocide, crimes against humanity, war crimes, and ethnic cleansing’: Tendayi Achiume (n
49) 716–17.
The R2P doctrine ‘was … primarily meant to address the responsibility of the larger international
community. In that, its scope is probably just right, for now’: L Arbour, ‘The Responsibility to
Protect as a Duty of Care in International Law and Practice’ (2008) 34 Review of International
Studies 450. In the same vein, Nina Jørgensen asserts that, ‘the notion of a “serious breach of an
obligation arising under a peremptory norm of general international law” entailing special consequences in the form of obligations on third States, may ultimately be said to reflect a twenty-first
century idea … even in rooted in established principles’: NHB Jørgensen, ‘The Responsibility
to Protect and the Obligations of States and Organisations Under the Law of International
Responsibility’ in J Hoffmann and André Nollkaemper (eds), Responsibility to Protect: From
Principle to Practice (Amsterdam University Press 2012) 126.
Tendayi Achiume (n 49) 722.
The Duty to Rescue Refugees • 651
‘there is strong reason to believe that the pattern of a violent conflict or instability foreshadow an escalation to full blown [R2P] crimes, [R2P] requires that the international
community take action’, including ‘sharing the cost of protecting the refugee population
and its hosts, where the host State lacked the capacity to do so’.54 Interestingly, Tendayi
Achiume does not resort to R2P to justify the protection offered by frontline States to
Syrian refugees.55 Instead, she makes the case for international cooperation – specifically, cost-sharing – for the benefit of regional host countries that, because of capacity
deficits, fail to meet their protection commitments towards refugees, ‘The nature and
extent of the international community’s commitments under RtoP become more intensive as host States are less capable (or willing) to protect refugees within their borders’.56
This creative reading brings R2P closer to our theme, as it stresses a duty of assistance
owed by the international community as a whole. This duty is owed, however, not to
refugees, but to regional host States. In Tendayi Achiume’s argument, a proper implementation of R2P has no regard for territorial borders, but only in the sense that it operates within a territorial continuum encompassing the State of origin and ‘regional host
States’. That R2P also commands a duty on more distant States to assist host countries
suggests that the whole world, not just the ‘region’, could be construed as a continuous
‘protection space’ – a concept arguably inherent in a collective duty to rescue refugees.
Regrettably, Tendayi Achiume does not push her argument that far. This lack of audacity is all the more disappointing since she prays in aid of Arbour’s depiction of R2P as a
universal duty of care, including this quote:
while proximity may matter most in terms of promptness and effectiveness of
responses, it should not be used as a pretext for non-neighbours to avoid responsibility. Indeed, the concept of responsibility to protect holds that all States are
concurrently burdened with a responsibility to protect which they share irrespective of their location.57
Granted, refugee protection was probably not on Arbour’s mind when she wrote this.
At the same time, once it is accepted that refugees are potential victims of ‘R2P crimes’
and deserve to be protected as such, there is no good reason not to apply to their protection Arbour’s vision of a concurrent, territorially unbound responsibility, incumbent
upon all States.
Be that as it may, our exploration of R2P does not seem to take us any further than
the foregoing analysis of IHL’s potential as a ‘home’ for a duty to rescue refugees.58 Both
sources converge to frame a collective duty to intervene in order to prevent and/or
54
55
56
57
58
ibid 723.
She duly observes, nonetheless, that, ‘Syrian refugees living in regional host countries remain
vulnerable to RtoP crimes in Syria because, as non-citizens of these countries, they remain at risk
of return to Syria by deportation or refoulement’: ibid 720.
ibid 721.
Arbour (n 52) 454 (emphasis added).
The unclear status of the R2P ‘doctrine’ from its inception, and its diminishing traction following
the 2011 intervention in Libya and the backlash it triggered, would make it a rather fragile home,
in any case.
652 • The Duty to Rescue Refugees
stop the most serious and egregious violations of human rights, in times of war as well
as peace. To rescue survivors and potential victims in flight can be conceived as part of
this duty. It can also be argued that to do so when the people in flight find themselves
at, or across, an international border is less controversial, if potentially less helpful, than
an intervention within the source country. Nonetheless, a couple of issues stand in the
way of a closer correlation between IHL and/or R2P rules, on the one hand, and the
norm I am attempting to elucidate, on the other. The first issue is personal scope. In
practice, as well as in (refugee) law, the refugees of concern to the international community are not only those who flee the threat of genocide, other ‘R2P crimes’, or grave
breaches of IHL. Furthermore, a strict reference to IHL or R2P would inevitably introduce additional definitional requirements, such as the qualification of the situation in
the source country as an armed conflict, the criminal qualification of the causes of the
outflow, and the establishment of a causal link between the breaches or crimes and the
displacement of population. Any dispute about such elements would have the effect
of delaying swift collective action, and therefore run against the purpose of affirming
a duty to rescue within a context of humanitarian emergency. The second issue, which
has never ceased to trouble R2P waters, concerns the definition of a collective duty
and its translation into collective measures. Neither R2P nor IHL affects the exclusive
power of the Security Council to make decisions on behalf of all UN Member States,
and to dictate mandatory collective measures to give effect to its decisions.59 While it
is accepted that mass refugee outflows are capable of triggering collective action under
Chapter VII of the UN Charter,60 it would be imprudent to suggest that collective intervention to rescue refugees can materialize only through resort to the Security Council.
The final section of this article presents a few reflections on the ‘collective’ nature of the
duty to rescue refugees, and on ways – short of a Security Council mandate – in which
it can be made operational.
5. TO WA R D S A N I N ST I T U T I O N A L / P RO C E D U R A L F R A M E W O R K
This may be a good place to recall the legal problem that a rescue paradigm seeks to
resolve, namely, the imbalance of responsibilities between the proximate and distant
helpers (the ‘frontline State’ problem), and between the first and subsequent intervenors (the ‘non-refoulement before burden-sharing’ problem). The challenge consists,
therefore, in bringing the responsibility of the international community as a whole
closer (in time) to the admission phase and (in space) to the ‘point of delivery’ of international protection. In order to meet this challenge, I have argued that the duty to rescue refugees must be conceptualized as a single, collective duty incumbent on all States
in the refugee regime. This cannot possibly mean, however, that all States are bound to
act together in all refugee emergencies. A parallel can be drawn here with the ‘duty to
intervene’ inherent – according to some commentators – in the R2P doctrine:
When the duty to intervene is seen primarily as a duty of the international
community as a whole, we face the familiar problem of coordination. Given that
59
60
UN Charter, 1 UNTS XVI, arts 24–25 and ch VII.
See Goodwin-Gill and McAdam (n 8) 5–7.
The Duty to Rescue Refugees • 653
the international community as a whole accepts there is a duty to intervene
or stands to gain from intervention, which particular agent of the community
should act?61
In the case of refugee emergencies, however, this question needs to be re-phrased
somewhat. By definition, as explained above, emergencies overwhelm existing abilities to cope with a crisis; and indeed, humanitarian practice over the past three
decades or so evidences that the duty to rescue refugees in mass influx situations
cannot be discharged by any one agent of the international community. The question
becomes, therefore, whether it is possible to assign the duty to a set of States. What
would be the appropriate size of such a set? And what criteria should govern its composition? Miller, among others, has argued that generally there is no principled way
of distributing responsibilities that are collectively shared.62 There are competing
considerations at play here, including the moral or legal fault of prospective actors,
other special relationships, and comparative advantage based on respective capabilities. Context, says Miller, will determine in each case the most salient of these considerations. Against this realistic-pessimistic view, Tan contends that there is a way
of assigning an ‘imperfect’ duty, that is, by institutionalizing it. Institutionalization
is, in his judgment, ‘a required response to the assignment problem when the duty is
imperfect; when the performance of this duty is an imperative; and when time is of
the essence’.63 While his argument applies most directly to ‘humanitarian intervention’ in the military sense, Tan explicitly refers to ‘duties of rescue’ as meeting these
criteria – a proposition which can hardly be disputed. Borrowing as much from this
line of thought as from the school represented by Miller, I would like to submit
that both context and institutional framing are essential to resolving the assignment
problem under a collective duty to rescue refugees.
By ‘institutionalization’, Tan means the creation of ‘an institutional role or office
charged with [the] performance’ of the duty, such as ‘an international humanitarian
defense force or some equivalent’.64 I wish to make it clear that, where the duty to
rescue refugees is at issue, I am not in favour of the establishment of a new international refugee ‘office’, nor do I believe that an existing international institution
such as UNHCR should be ‘charged with the performance’ of the duty. On the
other hand, a purely contextual approach to the distribution of State responsibilities in refugee emergencies will not suffice to re-invigorate the international refugee
regime, which is in desperate need of a fresh set of norms and mechanisms based on
agreed principles. We are looking, therefore, for a formula that combines predictability with flexibility and attention to context. If I call this formula a comprehensive plan of action, I suspect that many readers will find my proposal anticlimactic.
61
62
63
64
K-C Tan, ‘Humanitarian Intervention as a Duty’ (2015) 7 Global Responsibility to Protect 134
(emphasis in original). This legal discussion echoes traditional descriptions of the duty to rescue
as an ‘imperfect’ moral duty, and the question as to whether a moral connection can be established between a particular rescuer and a particular rescuee. See Durieux (n 1) 162–63.
D Miller, ‘Distributing Responsibilities’ (2001) 9 Journal of Political Philosophy 453.
Tan (n 61) 139. On the benefits of institutional framing, see also Tendayi Achiume (n 49) 704–08.
Tan (n 61) 134–35.
654 • The Duty to Rescue Refugees
Comprehensive Plans of Action (CPAs) have been used at various points in history to coordinate international cooperation for refugee protection and solutions,
and it is by no means novel to suggest that a CPA should be the preferred vehicle
for advancing such objectives.65 Nor can I ignore that CPAs have been few and far
between in the last decades of the past century; that their success is still a matter
of debate; and that the international community has shied away from applying this
model to the most challenging refugee emergency in recent times, namely the Syrian
refugee situation.66 I choose, nonetheless, to retain the phrase and the acronym, and
to adopt some features of past CPAs while suggesting a number of improvements,
inspired by the foregoing discussion. The main features of interest speak directly to
the ‘assignment problem’ described earlier in this section.
First, a CPA is and should be focused on a particular refugee situation – or, to be
more precise, on a particular refugee emergency. I distance myself from the view
that ‘a more systematic approach to devising CPAs … should initially focus on
protracted refugee situations’,67 not because protracted situations do not require
a collective effort, but because I believe that they often result from a lack of resolute collective action and opinio juris in the emergency phase, that is, when rescue
should be the absolute priority.
Secondly, a CPA is, by design, ad hoc as regards the composition of the set of stakeholders, whom I prefer to call duty-bearers. Context dictates which States will, in a particular emergency, perform their share of the collective duty, although the adjective
‘comprehensive’ suggests a sizeable grouping of States, necessarily extending beyond
the frontline States.
Ad hoc-ism must, however, be constrained and give way to what UNHCR has rightly
called a systematic approach in two significant and inter-related aspects. First, a rescueoriented CPA must be actionable at the onset of a refugee emergency. Second, it must
express State commitments that, without being exactly pre-defined, at least fit in with
an agreed set of manifestations of the collective duty. To these ends, what is needed is a
two-step procedural model. The first step consists of designing a blueprint, or template,
for all future CPAs, outlining both a standard process (most logically led by UNHCR)
and basic criteria for the selection of intervenors in, as well as measures contributing to,
65
66
67
See, among others, Tendayi Achiume (n 49) 727–30; McAdam (n 14) 259–61; A Betts,
‘Comprehensive Plans of Action: Insights from CIREFCA and the Indochinese CPA’ (2006)
UNHCR New Issues in Refugee Research, Working Paper No 120; UNHCR, ‘Making
Comprehensive Approaches to Resolving Refugee Problems More Systematic’ (16 Sept
2004) <http://www.unhcr.org/414aa9564.html>.
At the close of a comprehensive analysis of this situation, a team of researchers reached the following conclusion: ‘the status quo will evolve over time into a protracted refugee situation that
will drain more and more resources from within and outside the region. In light of these concerns, it is in the interests of the global community to put a CPA in place now, while equitable
responsibility sharing is still possible in a planned program that builds on an existing framework
of refugee, immigration and humanitarian laws and policies’: SM Akram and others, ‘Protecting
Syrian Refugees: Laws, Policies, and Global Responsibility Sharing’ (2015) Boston University
School of Law 118.
UNHCR (n 65) 3.
The Duty to Rescue Refugees • 655
the rescue of refugees.68 The second step, to be taken as soon as warning signs of a refugee emergency are unmistakable, consists of tailoring the standard operational model
and responsibility framework to the particular situation at hand. Preparedness breeds
predictability, and both enable a swift, coordinated response. If there is one lesson to be
learned from international disaster management, this must be the one.
Little will be achieved, however, if the CPA blueprint and/or its application to the
next emergency are couched in the familiar but rightly contested ‘burden-sharing’ language. A genuine paradigm shift is required to get rid of unhelpful assumptions that
can all too easily be turned into prescriptions. These are so deeply entrenched that they
continue to influence even the best-intended minds, ‘refugees are likely to remain concentrated in the region where the conflict they are fleeing is located’; States outside
the region will fulfil their own commitments, ‘fundamental[ly] … through humanitarian and development assistance’; ‘the fraction of refugees likely to be resettled will
be small’.69 Statements like these and, critically, policies implementing them have not
served refugees or the international community well. Instead, they have led the refugee
regime into the impasse in which it struggles to survive. Aspirational as it may be in the
current state of international law, the collective duty to rescue refugees offers itself as
a conceptual way out of this impasse. If it cannot be used – at least not yet – to frame
international protection duties towards refugees, it may be a lens through which to analyse the vexing shortcomings of the regime as we know it, and to form the shape of a
more acceptable deal.
68
69
The UN Secretary-General has recently called for ‘a new international cooperation framework on
predictable and equitable responsibility-sharing to respond to large-scale refugee movements’.
The framework ‘could create a mechanism for early consultation with all relevant countries and
other stakeholders in the event of mass movement of refugees, addressing resourcing for host
countries and, as necessary, expedited pathways for admission in third countries’: UN SecretaryGeneral, ‘One Humanity: Shared Responsibility. Report of the Secretary-General for the World
Humanitarian Summit’, UN doc A/70/709, 2 Feb 2016, para 87. It is not clear at the time of writing (before the Summit is actually convened) whether the Secretary-General’s vision can translate into the kind of adjustable blueprint that I could recommend as both desirable and realistic.
Tendayi Achiume (n 49) 733, 735.