The flow of refugees and state obligation

Myint Zan, School of Social and Economic Development, University of the South Pacific, Suva, Fiji Islands

Following the diplomatic and humanitarian crisis following the rescue of mostly Afghan refugees from a sinking Indonesian ship, a tragic disaster occurred in the seas off Indonesia. A leaking boat originating from Indonesia, carrying hundreds of refugees apparently headed for Australia, capsized and more than 340 persons drowned. Only about 40 were rescued.

As a result of this tragedy and to help deal with the recurring "boat people" problem the Indonesian government has called an international conference. The government has reportedly not only invited government representatives from the "destination country" of the "refugees" (Australia) but also the countries from which the refugees originated such as those of Iraq, the origin of most of the passengers in the latest tragedy.

This invitation of representatives from "refugee source" states raises a legal issue.

The 1951 International Refugee Convention was drafted 50 years agom, which in hindsight appears to contain an anomaly. The Convention lays down detailed guidelines on the obligations of "refugee-receiving" states.

However the Convention does not contain any stipulation that a state must not or should not create conditions which would cause "refugee flows" or even exoduses into other countries.

At least in the context of the current refugee flows or movements from Indonesia to Australia it is evident that many of the refugees were fleeing despotic regimes such as Saddam Hussein's Iraq and the Taliban's Afghanistan.

If there are obligations on "destination countries" towards refugees then shouldn't it also be incumbent on countries from which refugees originate to observe minimum obligations?

In the refugee discourse of previous decades and in relation to the Vietnamese boat people, the term "burden-sharing" was much in fashion. Now, shouldn't this burden sharing be extended to states which traditionally create refugees?

Shouldn't there be an obligation on states not to unduly burden other countries with refugees? The basis of the obligation would be that states should not create conditions in their countries which would lead to refugee flows.

The practicality or even the feasibility of implementing this proposal might well be questioned. However on a doctrinal level, the law as it should be (de lege ferenda) dictates that "refugee- creating" states share the legal burden with receiving states.

The concept of state responsibility can be used to make the refugee-creating states internationally responsible for causing massive flows of refugees towards other countries.

The doctrine of state responsibility initially arose in the 19th century when mainly stronger countries (such as the United States) "sued" smaller countries (such as Mexico) in arbitration tribunals when nationals of the stronger countries were mistreated, injured or killed in the smaller countries.

In the 19th and early 20th century there was a plethora of cases where the arbitration tribunals awarded damages to the states whose nationals were harmed or killed while they were visiting or residing in the smaller states.

After World War II the concept of state responsibility "branched off" into various fields from its 19th century classical international law preoccupation with protection of nationals abroad.

Nowadays various international conventions mandate that if a state commits genocide, slavery or apartheid-type racial discrimination then it would, under "state responsibility", be in breach of a peremptory norm of international law.

As a result, it would be "responsible" to the international community as a whole. Apart from the responsibility in the "core" areas of genocide and slavery, a state can be held responsible in international law for causing massive environmental and ecological damage across international borders.

Therefore, shouldn't a state be also responsible for its actions, such as gross human rights violations (if proven) which lead to a flow of refugees across international boundaries?

This proposal juxtaposing "state responsibility" and international refugee law was first proposed in 1989 in a law journal article written by two Australian jurists, Blay and Ayling. Twelve years later nothing of legal significance has occurred.

During the past decade much emphasis has been given to protection and promotion of human rights at the doctrinal level. One can perhaps also assert that sporadically, if only so imperfectly, that this "slant" towards issues on human rights can be discerned in implementation and practice.

The proposed Jakarta conference will almost certainly not discuss the legal issue of making "source" or "refugee- creating" countries internationally responsible. The deliberations will most probably focus on "technical" matters such as cooperation in the crack-down of refugee merchants and people smugglers in the source, transit and destination countries.

Yet an arguable lacunae in the law concerning refugees remains. The milieu and context concerning human rights and progressive development of international law have, in some aspects, improved in recent years. A decade ago the establishment of a Permanent International Criminal Court might seem even to cautious optimists as a "starry-eyed" idea.

Now one hopes that this (almost) giant leap of the establishment of a PICC in the field of international criminal law would be complemented by innovative and beneficial developments in international refugee law.