The Need to Establish and Enforce the Liability of Refugee-Generating Entities: Addressing the Normative Lacuna in the Intersection between International Refugee Law and the Law of International Responsibility

Abstract

According to UNHCR, 55 percent of the refugee population worldwide comes from three countries – 1.4 million from South Sudan, 2.5 million from Afghanistan, and 5.5 million from Syria. This highlights a significant feature of today’s refugee problems: situations and activities in a few countries are generating the majority of global refugee population. Given this feature, it is natural to ask “who are generating refugees in these countries,” “do they bear liability of any kind under international law for generating refugees,” and “if yes, are there legal mechanisms in place to enforce the liability.” This paper aims to address these questions. Queries about the liability of refugee-generating entities are nothing new. As early as 1939, Sir Robert Jennings already attempted to establish responsibility of refugee-generating States based on the abuse-of-right doctrine. However, despite scholarly endeavors, positive international law in its current shape seems unable to establish the liability of refugee-generating entities. No treaties spell out such liability, and it seems hard to argue that such liability exists in customary international law. This points out a normative lacuna in the intersection between international refugee law and the law of international responsibility. The law of State responsibility is hard to seamlessly apply to refugee-generating entities, because (1) refugee-generating entities – whose activities are most direct to and responsible for causing refugee displacement – can be non-State actors; and (2) both the breach and attribution requirements for an internationally wrongful act are too limited and formalistic to be applicable given the complexity of refugee-generating situations. Based on Louis Henkin’s theory of “constitutional international law”, this paper argues for a new way to establish the liability of refugee-generating entities under international law. After defining “refugee-generating entities” by reference to Article 1(A)(2) of the 1951 Convention, this paper envisages possible mechanisms under domestic and international law to enforce the liability of refugee-generating entities.