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Community Interests Across International Law$

Eyal Benvenisti and Georg Nolte

Print publication date: 2018

Print ISBN-13: 9780198825210

Published to Oxford Scholarship Online: July 2018

DOI: 10.1093/oso/9780198825210.001.0001

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Community Interests in International Migration and Refugee Law

Community Interests in International Migration and Refugee Law

Chapter:
(p.341) 17 Community Interests in International Migration and Refugee Law
Source:
Community Interests Across International Law
Author(s):

Tally Kritzman-Amir

Publisher:
Oxford University Press
DOI:10.1093/oso/9780198825210.003.0018

Abstract and Keywords

This chapter takes a closer look at some of the main components of international refugee law and some of the recent European practices in order to see how they resonate the notion of community obligation and convey a commitment to the common protection of human rights, in a way that deviates from a purely consent-based conception of the norms. It addresses four main points: (1) a broad interpretation of the definition of refugee in the convention relating to the status of refugees as an expression of a notion of community obligation; (2) non-refoulement as an expression of a notion of community obligation; (3) the duty to refrain from rejecting asylum-seekers at the border as an expression of a notion of community obligation; and (4) responsibility sharing as an expression of a community obligation.

Keywords:   international law, community interests, refugee law, asylum seekers, Refugee Convention, non-refoulement, human rights

I. Introduction

In recent years, there has been a heated debate over the role of Europe in the treatment of Mediterranean migrants, of whom many are asylum seekers and refugees.1 In the course of this debate, we witnessed various responses, ranging from calls for Europe to open its borders to the mixed migration flows and be more generous to forced migrants such as asylum seekers and refugees fleeing war, natural disasters, and poverty in the Middle East and Africa; calls to relieve the burden of some of the frontline member states, such as Italy and Greece; suggestions to various leaders in Europe to close their borders as an emergency measure and to refrain from admission of migrants; to attempts to direct attention to the refugees’ situation in Middle Eastern and African countries of asylum, which received a mass influx of millions of asylum seekers at the same time that Europe received hundreds of thousands.2

It is within this context that we seek to examine whether we can—and should—talk about community obligations in the context of immigration and asylum law, regarding the duties of states to individual nonmembers who immigrate and/or seek asylum within them; to other states with whom they share a “community,” such as other EU states; and to states with whom they have a lesser sense of community and a relationship which is not as close-knit. It seems that such a discussion is important precisely because borders are closing, thousands are losing their lives and freedom along dangerous migration routes, and millions are being spent on detention, rejection at the borders, and pushback operations in the high seas. There is a difference between the sentiments of community obligations which can be identified in the law (broadly defined to include soft law, court decisions, etc.), and the particularistic, sovereignty-centered tendencies which we sometimes see in governmental policies. It is a tension worth exploring, since, while international immigration and refugee law is still weak and underdeveloped, it reflects, in some cases, contradictory tendencies which could be detrimental to migrants’ and refugees’ rights.

(p.342) While the chapter looks at international migration law, it focuses on international refugee law, for three main reasons. First, the mixed migration flows into Europe in the last few years include a large number of asylum seekers and refugees, so this focus is very timely. Second, the fact that the flows of migrants in recent years were mixed meant that states had to refer to migrants who entered them as potential refugees, in order to fulfill their international law obligations. Had states adopted an opposite assumption, in many cases they could, at least potentially, have deported the migrants or prevented their entry, but had it turned out in the end that they were refugees this could have been a violation of their duty of non-refoulement.3 So, in the interim period during which states determine the fate of an asylum applicant, they are restricted by the requirements of refugee law. Third, and perhaps most importantly, refugee law is the most robust body of international law obligations. Norms governing other types of migration are not as comprehensive. In other words, since the reality is that it is often difficult to distinguish which legal framework applies to which migrant, international refugee law is (or at least should be) the best safe-side fallback option.

This difficulty of determining which legal framework applies has to do with the fact that categories of migrants constitute an attempt to essentialize the migration experience, although migration is often more complex than the categories make it out to be. Therefore, multiple terms will be used in this chapter to describe multiple types of migrants, even though few of those terms are accurate. The term “migrants” refers indiscriminately to all persons that cross international borders and leave their state of origin to reside temporarily or permanently in another state, irrespective of the reasons and constraints which led them to do so. This broad category reflects the difficulty in distinguishing between voluntary and involuntary migration and, accordingly, between those who have chosen to migrate and those forced to migrate as refugees.4 The term “asylum seeker” refers to people who move across borders in search of protection, but who may not fulfill the strict criteria laid down by the 1951 Convention Relating to the Status of Refugees.5 I use the term “refugee” to refer to those defined as such in the Convention Relating to the Status of Refugees and other international law instruments. Although it might be justifiable to refer to the broad category of those whose flight is driven by constraint, such as persons fleeing extreme, life-threatening poverty, or natural disasters,6 I will use a different term for this larger population of migrants, namely “forced migrants.”7

Section II details the evolution of migration control and migrants rights law as a matter that requires cooperation. I will focus on the historical development of refugee (p.343) law, since the migration of refugees is the most challenging for states to regulate and control. Section III identifies some of the main difficulties in the discussion of community interests in the migration context. Section IV provides a few examples of how certain elements of international refugee law and migration law reflect a notion of community interest in the protection of migrants’ rights. Section V concludes.

II. It Takes a Community to Tame Migration: The Evolution of Migration Control and Migrants Rights from a Matter for a State to Take Care of to a Matter that Requires Cooperation

Until the early twentieth century, migration in general—and undocumented migration of asylum seekers in particular—was generally not perceived to be a concern for states, since they were referred to as persons who could contribute to the national economy and were therefore welcomed into the society.8 The general right of people to leave their country was widely recognized (although subject to exceptional limitations),9 and the ability to exclude migrants, while conceived to be within the authority of some states, was the exception, as the rule was one of freedom to move across international borders.10 This changed with the rise of nation-states and the formation of a sophisticated infrastructure of border control aimed at excluding immigrants as per immigration laws after World War II. Mostly due to security concerns, states conceptualized the entry of migrants and refugees to their territory as a threat which should be controlled and tamed by their sovereign power. States were generally perceived as authorized to control their population and borders, and to some extent as obligated to do just that: Limit admission and make decisions on inclusion and exclusion for the sake of their members,11 although the League of Nations quickly responded to guarantee limited forms of protection to specific groups of refugees.12 The costs and burdens of assimilating migrants into the local society and the labor market were recognized, as well as the fact that not all asylum seekers contribute to the GNP.13 Migration was seen as a potential threat to culture, religion, economy, or security, which states needed to prevent, especially given the magnitude of the phenomenon.14

The efforts of states to control migration have been, at best, only partially successful from the states’ point of view. With globalization, it became increasingly hard to limit the movement of people, which came with the movement of capital and goods. As control was virtually lost and borders became porous, states sought cooperation with others. At first this cooperation took the form of bilateral arrangements, but eventually (p.344) multilateral ones were also employed. For example, in the case of refugees, it was not until the 1920s that a multinational arrangement was formed to deal with the problem. Until that time, every state dealt with refugees who wished to enter it separately or through collaboration with neighboring countries. There was no unified practice regarding who should be allowed in (or who qualifies to be defined as a refugee) and how refugees should be treated.15 After the formation of the League of Nations, this became the organization in charge of refugees, instead of the ILO, which was responsible for the treatment of all other immigrants.16 However, the League of Nation’s protection of refugees was criticized as politicized and insufficient. Eventually, the High Commissioner for Refugees was established under the League of Nations in order to deal with the plight of refugees in 1933. This was the first institutional step to show that nations perceived refugees as a different sort of immigrant who are in need of more assistance than other immigrants. Later on, the International Refugee Organization (IRO), which was created in 1946 as an ad hoc specialized agency under the UN, operated under the close supervision of the U.S. government.17 The most significant multilateral measures were the formation of the Convention Relating to the Status of Refugees, 195118 (although additional multilateral regional agreements were also formed),19 which followed the formation of the United Nations High Commissioner for Refugees (UNHCR) in 1950.20

III. Which Community? What Are the Interests? On the Complexity of Identification of Community Interests

It is highly debated what community interests really are in the context of migration and refugee law.

First there is the question of which community. It is often argued that the protection of the rights of migrants and refugees comes directly at the expense of the local disempowered populations. This is a concern, especially if we take into account the fact that refugees are not the weakest members of their societies, since the most disempowered in countries of origin typically lack the financial and cultural capital necessary to immigrate. In most cases, the short- and long-term effects of the absorption of refugees and the provision of assistance to them could be mitigated through domestic distributional means, so as not to place an unfair burden on disempowered local populations.

(p.345) Second, it is hard to determine whether there is a community interest to encourage migration through generous migration policies. On the one hand, migration could potentially be emancipating for some, especially refugees and others (for example, female migrants in some cases) whose lives dramatically improve as a result of their migration and their consequent ability to enjoy human rights. Generous migration and asylum policies could be the channel through which surrogate protection and human rights are provided to persons who would otherwise not be in a position to enjoy them.21 Additionally, generous migration policies usually come together with the imposition of fewer barriers to the freedom of movement and open borders (to a degree), which bring economic and social benefits.

On the other hand, there are reasons to think that migration is an undesirable phenomenon. It is often a traumatic process for the individuals who experience it. Some migrants are exploited and taken advantage of in the process, and some are trafficked.22 Since migration frequently involves the use of precarious means of transportation, it is also risky and potentially life threatening.23 Migration often diverts attention from the need to resolve the root causes of the problems in the countries of origin—poverty, instability, violence, and human rights violations.24 Finally, migration affects countries of origin, causing “muscle drain” or “brain drain” on the one hand, but on the other hand affording transfers of remittances, which impact on their economies.25 While it seems to be a community interest to protect the rights of migrants, perhaps especially the rights of refugees, there might be a concern that human rights-oriented migration policies may have an adverse effect and provide incentives for immigration (“pull factor”).26 However, research is inconclusive about the effects of generous migration policies on decisions to migrate, and it seems that at least with respect to refugees “push factors,” that is, constraints due to which the decision to leave the country of origin has been made, are more influential than “pull factors,” that is, favorable migration policies.27 At the same time, combatting human trafficking (p.346) and other means of severe exploitation of migrants might seem to be a community interest and a matter of state solidarity,28 despite the fact that this may create some tension with the interest of protecting migrants’ rights.

IV. International Refugee Law and the Commitment to Migrants’ Rights: Some Examples

Leaving these questions somewhat open, this chapter will now take a closer look at some of the main components of international refugee law (broadly understood to include relevant norms from other international law areas, such as general human rights law, case law, and some state and international practices), in order to see how they resonate with the notion of community obligation and convey a commitment to the common protection of migrants’ rights, in a way that deviates from a purely consent-based concept of the norms. I focus on examples from the realm of refugee law, for the reasons mentioned above.29

A. A broad interpretation of the definition of refugee in the Convention Relating to the Status of Refugees as an expression of a notion of community obligation

The first definitions of a refugee in the 1920s and 1930s30 were comprised of several requirements,31 and referred to refugees from specific countries of origin, namely Russia and Germany. It was in the interest of some Western European and North American states to protect persons from these countries of origin—and not to protect others. For example, Italian and Spanish refugees were not granted protection due to Italian governmental pressures and a lack of will on the part of the League of Nations to provoke the Italian regime, given the fact that the number of these refugees was relatively small.32 In the late 1940s the definition was broader but still (p.347) influenced by a concern with the Nazi regime and the regimes which cooperated with it.33

Eventually, the current definition of refugee was phrased, in the Convention Relating to the Status of Refugees, to include all the refugees labeled as such in the previous arrangements. Also classified as a refugee in this convention, in addition to those classified as refugees in the past, was every person who

[a]s a result of events occurring before I January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.34

The process whereby the definition of refugee—and the Convention Relating to the Status of Refugees in its entirety—came to life was other-regarding. The Convention is often criticized as too “Western” since it was mostly developed, European, and North American states which took part in the drafting process. But it was also a process through which refugees’ interests were heard by proxy, through NGOs which represented at least some of the groups of refugees of that time.35

Since the 1967 Additional Protocol, the temporal and geographical restrictions have been removed and refugees from all countries of origin meet the requirement of the definition.36 This marks a process of stepping away from the provision of protection to refugees when this meets the political interests of the state and, instead, the introduction of a notion that the problem of refugees is one that the community needs to resolve vis-à-vis nationals of all states. The current definition of refugee in the Refugee Convention is global—in the sense that it recognizes that refugees come from different parts of the world and migrate to all parts of the world. The solution was understood to be one which should be universal in the sense that it should include a broad, loosely defined standard to be enjoyed by refugees everywhere. The universal nature of the treatment of refugees conforms to the growing tendency since World War II to form universal legal instruments to protect human rights, such as the Universal Declaration (p.348) of Human Rights 1948, and numerous treaties on human rights, the most prominent of which are the International Covenant on Civil and Political Rights (ICCPR) 1966 and the International Covenant on Economic, Social and Cultural Rights (ICESCR) 1966. Such a solution enforces legal duties on states, essentially duties to allow refugees to enter their borders; to allow them to enjoy protection, legal status, and human rights; to refrain from deporting them (subject to exceptions), etc. Of course, the scope of the right may vary from one country to another, depending on each country’s unique abilities and constraints. All of these duties derogate from state sovereignty in the sense that they derogate from the state’s ability to determine the answer to questions such as how resources such as status and human rights should be distributed and whether a moral duty should be enforced on a state to care and provide for refugees. Such derogation is necessary since it is crucial to coordinating the efforts to assist refugees of all countries. In order to ensure that the responsibility of assisting refugees is distributed in a fair manner, a uniform system for providing for refugees had to be established.

Regional instruments further derogate from the state’s sovereignty, granting refugee status to an even broader category of persons. Perhaps most notable is the Convention on the Specific Aspects of Refugee Problems in Africa, Organization of African Unity, 1969, which adds the following to the above-mentioned definition:

[E]very person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality.37

The definition of refugee requires much interpretation, as almost all of its components are very obscure, as is often the case in situations when the drafting of a human rights norm reflects a political compromise. Over the years, we have seen the definition of refugee being stretched by national and international courts to include persons fleeing various forms and shapes of persecution (including, but not limited to, persecution by private entities; persecution on account of gender, sexual orientation, disability, or age; persecution by denial of social and economic rights, etc.).38 Such interpretations of the Convention were also developed and encouraged by the United Nations High Commissioner for Refugees (UNHCR) in a series of soft-law instruments,39 such as EXCOM decisions, guidelines, a handbook, and recommendations, which states take seriously as an interpretive source. Broad interpretation of the Refugee Convention was also inspired by human rights instruments, namely the ICCPR.40

(p.349) Two types of actors therefore emerge as significant in the community interest-oriented interpretation of the Refugee Convention and, accordingly, the protection of refugees: the courts and the UNHCR. The fact that states’ courts interpret the definition in such a broad manner in many Western countries in itself marks a shift from the original intent of the Convention’s framers to protect a limited quantity of refugees in a limited number of situations. But what is even more of a reflection of a community obligation is the fact that we can see states’ courts borrowing broad interpretive standards from each other.41 It could well be argued that the reasons for this are unrelated to community obligations.42 However, the result of the unification of standards is that instead of states dumping migrants onto other states, thus creating a race to the bottom in which each state is tempted to interpret the definition of refugee in the narrowest way and externalize refugee protection on others, states are assuming responsibility for their protection and their human rights, due to the courts’ interpretation of the Convention. This manner of interpretation is particularly interesting in light of what has often been called “compassion fatigue,”43 the tendency of states to apply their sovereign power in order to limit the number of refugees who enter and stay within their territory or under their responsibility, through various evasion techniques.

Courts play a very significant part in the protection of refugees, who are typically unable to protect their interests in the political process. It is possible for the courts to adopt a broad interpretation since they typically deal with individual cases, rather than with the totality of the phenomenon of immigration of refugees to a specific country. Refugees are subject to decisions of the host communities, which ultimately determine their fate, and as nonmembers of the community they have no political rights—and thus, no voice—in the decisionmaking process. Courts, with their counter-majoritarian powers, are able to amend this democratic deficit and take into account the interests and rights of the unrepresented migrants and refugees.44 In courts migrants, refugees, and migrants’ rights organizations have standing, even when they lack standing in political processes, and are thus able to take part in the formation of precedents which may influence migration policies and inclusion/exclusion decisions. The fact that migrants have standing has an ex ante effect on policies, since policymakers may take into account the fact that their policy might be challenged in courts. The inclusivity of refugees as a disempowered group in legal processes and thus in decisions regarding their treatment in itself can be regarded as a community interest, which, in this case and in others, the courts are promoting.

As mentioned above, the interpretation of the Convention was led not only by domestic and international courts but also by the UNHCR. The UNHCR attempts to (p.350) encourage participatory decisionmaking processes in which refugees can partake in decisions which have to do with their fate in the UNHCR as well.45 Although participation can, and should, still improve further, and is often challenging in the hierarchical context of this organization, the UNHCR strives to be more inclusive and regularly holds consultations with diverse populations, refugee organizations, and NGOs which by proxy represent refugees, when it shapes its policies and reviews and monitors states’ practices, legislation, and policies.46

B. Non-refoulement as an expression of a notion of community obligation

The most important form of protection given to refugees is the “non-refoulement.” This core principle, which is recognized by some as jus cogens,47 can be found in Article 33 of the Refugee Convention, titled “Prohibition of Expulsion or Return” (“refoulement”):

No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.48

The benefits of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.

(p.351) The idea that people should not be sent back to a place where their lives would be endangered (whether their country of origin or a different country) is relatively new to international law, although comparable ideas such as the idea of extradition were developed much earlier.49 Extradition and non-refoulement are essentially opposites, as the first dictates a legal duty in certain conditions to remove a person from the state she is in, and the second dictates a legal duty in certain conditions to refrain from removing a person. The two principles are governed by several treaties, which are sometimes contradictory. It was not until 1933 that the principle was grounded in an international convention.50 The fact that the idea of non-refoulement was developed that late may be explained by the relative willingness of states to allow immigration into their borders, which made the idea of non-refoulement unnecessary. These international arrangements, although differing from each other, included some of the following principles: A prohibition on the removal of aliens seeking asylum by police measures; a prohibition on non-admittance of asylum seekers at the frontier; allowing asylum seekers some time to make arrangements before demanding that they leave; etc.51 Looking back at the history of this principle, therefore, it clearly seems to have been designed to benefit the refugee or asylum seeker, while balancing their rights with the interest of the contracting states not to host persons who constitute a danger to them.52 The general protection granted to refugees via non-refoulement, which is taken away from them only in rare, exceptional cases, can therefore be viewed as advancement in the protection of community interests.

The principle of non-refoulement is significant for fostering cooperation between states and preventing them from taking unilateral steps which will create an externality to other states. It puts states in a situation in which they are unable to “dump” refugees in another country.53 It is against the background of this principle that states conduct discussions regarding secondary movements of asylum seekers in order to share the responsibility to provide them with protection and rights. For example, Central European countries discuss their willingness to take asylum seekers from Greece and Italy, knowing that these countries are unable to forcibly return them to their countries of origin or to other third countries without sufficient guarantees of their safety and freedom.

C. Prohibitions of non-admission at the border as an expression of a notion of community obligation

It can be argued that refusing the admission of asylum seekers at the border is a violation of the duty of non-refoulement. At first sight, the principle of non-refoulement (p.352) seems to only prohibit the return of refugees. To claim, however, that the prohibition of refoulement applies only to recognized refugees would make that prohibition ineffective. It would allow a state to return to the country of origin a person who would have been recognized as a refugee if his or her asylum application had been examined. There are several possible justifications for this. One justification is that without imposing a duty to refrain from rejection at the border, the right to asylum would become meaningless. If people have the right to seek asylum and protection from torture and cruelty, so, too, states have a correlative duty to refrain from subjecting people to regimes where their lives and liberty may be endangered, or where they may be subjected to torture. This right and this duty would both be meaningless if all the states such people can reach hermetically close their borders or reject them at the border. The purpose of the right to seek asylum views as immaterial the distinction between people who enter the territory of the state and people who are about to enter that territory (such as potential asylum seekers who seek admission at the border).54 As Veit Bader says: “[t]he recognition of the right to refuge and asylum presupposes that state sovereignty and self-determination have to yield in cases of ‘well-founded fear of being persecuted’ or, in another language, that the basic right or need to security is strong enough to outweigh other rights and competing ethicopolitical, prudential, and realist arguments.”55

Thus, alongside states’ policies of rejecting at the border, we can point to several court decisions limiting the ability to refrain from admittance or reject at the border.56 Courts have nullified return agreements and policies, interpreting the principle of non-refoulement as imposing strict procedural and substantive community-type duties on states, in lieu of their sovereign interests. Today, in light of the FRONTEX operations and the massive efforts invested by states in rejections and returns outside their territory, these decisions do not seem to be abided by in perceived mass-influx events.

D. Responsibility sharing as an expression of a notion of community obligation

The problem of refugees is a collective one, and the responsibility to protect and assist refugees in all phases of the problem (from the attempts to prevent refugee crises and resolve conflicts in states of origin, through the migratory journey, to the provision of temporary or long-term protection, rights, and assimilation) is common and shared. The immigration of refugees imposes a responsibility on host and transit societies. To ensure their safety during their travels, assimilation, and protection, states must expend resources by providing them with housing, jobs, education, etc.57 While this (p.353) responsibility is perceived as a collective responsibility by the UNHCR, the states-parties to the convention, the donor states, etc., it is actually borne by specific states.58 Usually, there is no particular moral justification as to why a particular state should bear the externality of the refugees from another state.59 However, most refugees end up migrating to neighboring states, due to their limited resources, or due to cultural, social, and religious reasons.60 Interestingly, neighboring states of refugees’ states of origin are often not much better off than the states of origin. Most refugees immigrate to poor and unstable neighboring countries,61 imposing an additional burden on their politics and economies.62 This burden could be devastating to some countries, especially given the fact that refugee crises both arise suddenly and are vast in scope.63 For example, crises in Africa, Asia, and Latin America have resulted in a mass influx of immigrants from one poor country in turmoil to another poor country in turmoil.64 Consequently, the least politically and economically capable countries are forced to provide for the neediest immigrants and to share the greatest part of the responsibility in caring for them.65 This phenomenon is coupled with the trend of Western countries to toughen their immigration and asylum laws, creating legal and physical obstacles before those who wish to enter, be admitted, and receive protection.66 In a sense they create an externality—they impose a responsibility on the poor neighboring countries which are unable to prevent refugees from entering them. This phenomenon, which results in the virtual containment of the problem of refugees in the global South, has drawn much criticism in academic scholarship.

Alongside the general norms in international law on responsibility sharing,67 the Convention Relating to the Status of Refugees also emphasizes the importance (p.354) of international responsibility sharing. In its preamble, the Convention specifically recognizes the principle of responsibility sharing with respect to refugees.68 As mentioned above, the principle of non-refoulement,69 which prevents states from deporting persons to other countries where their lives, physical safety, or freedom would be at risk, arguably forces states to negotiate responsibility sharing because it bars them from “dumping” refugees in other countries.70 Since 1951, there have been some efforts to promote additional agreements on responsibility sharing for specific refugee crises, but they were unsuccessful, as there were insufficient incentives to cooperate and the agreements were not enforced.71

Despite the rhetoric of many governments and international organizations72 and the general norms of international law that display a prima facie commitment to responsibility sharing,73 the responsibility of providing for refugees remains unevenly distributed.74 Some countries avoid accepting refugees in the hope that other countries will assist them instead.75 Ad hoc international responsibility-sharing efforts have been undertaken in the past, but historically they have been only sporadically successful because they were not tied to a strong moral sense of duty.76 Regional instruments, while playing a significant role in the geographic area of their parties, fail to offer a comprehensive resolution to the problem of responsibility sharing.77 Although it can be argued, in this context, that sovereignty trumps community interests, we can see initial and limited steps toward internalizing the community considerations alongside the national considerations. Examples of such policies are: Provision of support to the UNHCR and to countries dealing with a mass influx of refugees;78 provision of assistance to countries dealing with mass influx through humanitarian (p.355) agencies;79 resettlement programs, however limited and relatively small-scale;80 etc. In the recent discussions in the EU Council, decisions were made to relocate asylum seekers from the frontline states to the central European states or to Turkey, albeit in limited numbers, and to increase donations to the UNHCR in order to support refugees in the Middle East.81 Such measures were critiqued as constituting de facto large-scale forced-migration plans.82 In the absence of concrete general norms (and despite the existence of sporadic ad hoc arrangements which facilitate responsibility sharing), the general principle of responsibility sharing is considered a soft-law norm, and it can be argued that this is actually desirable. A soft-law norm on responsibility sharing makes this a principle which protects a community interest, rather than a principle invoked by states as a precondition for hosting large numbers of refugees.83

While international law does not provide a concrete enough framework for responsibility sharing, in the legal scholarship we see a robust discussion going on for a few decades now on the importance of responsibility sharing, on the legal and moral sources of the duty to share responsibility for refugees, and on modalities of responsibility sharing.84 Such discussions in the legal scholarship assume that the problem of refugees is one that should be resolved by all nations, in some proportion to their social and economic abilities and constraints, rather than something which should be tamed by the considerations of sovereignty. However, they have yet to materialize into concrete long-term and wide-scale responsibility-sharing mechanisms. Policies which result in an uneven distribution of responsibility are criticized in the scholarship as going against “the very foundations of the international refugee regime, which is based on a collective endeavor and collective commitment to protect refugees.”85

V. Conclusion

In a world with heavily criticized migration policies which put states’ interest first and try to limit migration and reclaim sovereignty, it is interesting to see that various aspects of international refugee law reflect other-regarding community interests. (p.356) With the International Convention Relating to the Status of Refugees as the core element of a multilateral refugee regime, international refugee law has expanded, mostly via domestic and international courts and through the UNHCR’s elaborate soft-law interpretations of the refugee convention, and has become much more than a set of purely consent-based norms. The need for more migrants to be recognized as refugees in order to be afforded rights and protections was recognized and the category of refugee has generally expanded, despite (and perhaps because of) the self-interest of states to limit migration. Protection from deportation (“non-refoulement”) was granted to refugees as the most crucial component of their rights, and interpreted broadly to prevent states’ attempts to circumvent their obligations through application of non-admittance practices. Attempts to distribute responsibility, albeit only partially successful, also reflect a consideration of the refugee problem as one that it takes a community to solve. Finally, refugees’ interests, which are generally not taken into account in national political arenas as they are nonmembers in the political communities within which they seek protection, are heard in judicial processes and international decisionmaking, interpretive, and monitoring processes. All of this demonstrates that in today’s fragmented and inadequate protection of refugees, there are still venues for refugee-related community interests to be heard, evaluated, and considered.

Notes:

(1) For an explanation of the terms “migrants,” “asylum seekers,” “refugees,” and “forced migrants,” see infra text accompanying notes 5–9.

(2) Justice and Home Affairs Council, 14/09/2015, Main Results, EUROPEAN COUNCIL, http://www.consilium.europa.eu/en/meetings/jha/2015/09/14/ (last visited Mar. 14, 2018).

(3) See infra Section IV.B.

(4) See International Migration, Migrant/Migration, UNESCO, http://www.unesco.org/new/en/social-and-human-sciences/themes/international-migration/glossary/migrant/ (last visited Mar. 14, 2018).

(5) See International Migration, Asylum Seeker, UNESCO, http://www.unesco.org/new/en/social-and-human-sciences/themes/international-migration/glossary/asylum-seeker/ (last visited Mar. 14, 2018). See also UNHCR’s definition of “asylum seekers” under the population of concern. UNHCR Statistics, UNHCR, http://popstats.unhcr.org/en/overview#_ga=1.141557810.1806008013.1466679317 (last visited Mar. 14, 2018).

(6) See Tally Kritzman-Amir, Socioeconomic Refugees (Apr. 2009) (unpublished Ph.D. dissertation, Tel-Aviv University) (on file with author).

(7) Stephen Castles, Towards a Sociology of Forced Migration and Social Transformation, 37 SOCIOLOGY 13 (2003).

(8) Joanne van Selm-Thorburn, REFUGEE PROTECTION IN EUROPE 22–28 (1998).

(9) Vincent Chetail, The Transnational Movement of Persons Under General International Law:Mapping the Customary Law Foundations of International Migration Law, in RESEARCH HANDBOOK ON INTERNATIONAL LAW AND MIGRATION 1 , 10–27 (Vincent Chetail & Celine Baulos eds., 2014).

(10) Id. at 28–29.

(11) See, e.g., Nishimura Ekiu v. United States, 142 U.S. 651 (1892).

(12) VAN SELM-THORBURN, supra note 8, at 22–28.

(13) Rieko Karatani, How History Separated Refugee and Migrant Regimes: In Search of Their Institutional Origins, 17 INT’L J. REFUGEE L. 517, 520–21 (2005); Stephen Castles & Mark J. Miller, THE AGE OF MIGRATION 62–64 (2d ed. 1998); Paul Weiss, The International Protection of Refugees, 48 AM. J. INT’L L. 193 (1954).

(14) Chetail, supra note 9, at 31.

(15) Karatani, supra note 13, at 520–21.

(16) VAN SELM-THORBURN, supra note 8, at 22–28.

(17) For a detailed description of the IRO, see Theodore N. Cox, Well-Founded Fear of Being Persecuted: The Sources and Application of a Criterion of Refugee Status, 10 BROOK. J. INT’L L. 333, 337–41 (1984). See also Kim Salomon, The Cold War Heritage: UNRRA and the IRO as Predecessors of UNHCR, in THE UPROOTED 157 (Göran Rystad ed., 1990).

(18) Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 137 [hereinafter the Convention or Refugee Convention].

(19) See, e.g., Convention Governing the Specific Aspects of Refugee Problems in Africa, Sept. 10, 1969, 1001 U.N.T.S. 45 [hereinafter OAU Convention]; Colloquium on the International Protection of Refugees in Central America, Mexico and Panama, Cartagena Declaration on Refugees (Nov. 22, 1984).

(20) G.A. Res. 428 (V), Statute of the Office of the United Nations High Commissioner for Refugees (Dec. 14, 1950).

(21) Research shows contradictory results as to whether migration is indeed an emancipatory process for migrants. For a discussion of whether migration has liberating effects on women, see Mirjana Morokvasic, Birds of Passage are Also Women, 18 INT’L MIGRATION REV. 886, 892–900 (1984); Patricia Pessar, Engendering Migration Studies: The Case of New Migrants in the United States, 42 AM. BEHAV. SCIENTIST 577, 584–87 (1999).

(22) On the complexity of dealing with human trafficking in the current institutional and legal situation, see Laura Gómez-Mera, Regime Complexity and Global Governance: The Case of Trafficking in Persons, 22 EUR. J. INT’L RELATIONS 566 (2015).

(23) See Thomas Spijkerboer, The Human Costs of Border Control, 9 EUR. J. MIGRATION & L. 147 (2007); Thomas Spijkerboer & Tamara Last, Tracking Deaths in the Mediterranean, in FATAL JOURNEYS 85 (Tara Brian & Frank Laczko eds., 2014).

(24) See, e.g., Meetings Coverage, Adopting Resolution 2240 (2015), Security Council Authorizes Member States to Intercept Vessels Off Libyan Coast Suspected of Migrant Smuggling, UNITED NATIONS (Oct. 9, 2015), http://www.un.org/press/en/2015/sc12072.doc.htm.

(25) See, e.g., John Oucho, African Brain Drain and Gain, Diaspora and Remittances: More Rhetoric than Action, in INTERNATIONAL MIGRATION AND NATIONAL DEVELOPMENT IN SUB-SAHARAN AFRICA 49 (Aderanti Adepoju et al. eds., 2007).

(26) On the concept of pull and push factors in international migration theory, see Douglas S. Massey et al., Theories of International Migration: A Review and Appraisal, 19 POPULATION & DEV. REV. 431 (1993).

(27) See, e.g.,Karen Musalo, Protecting Victims of Gendered Persecution: Fear of Floodgates or Call to (Principled) Action, 14 VA. J. SOC. POL’Y & L. 119, 132–33 (2007) (quoting the findings of the U.S. and Canadian Immigration Authorities according to which the adoption of a more generous approach to gender-based persecution asylum applications did not increase the number of female asylum seekers in those countries, proving that “push factors” and limitations on the ability to immigrate in the countries of origin are much more influential on migration patterns than “pull factors”).

(28) On the efforts to prevent human trafficking in the current refugee crisis in Europe, see S.C. Res. 2240 (Oct. 14, 2015) (allowing all U.N. Member States to search/seize vessels suspected of human smuggling/trafficking off the coast of Libya). For a critique of the Security Council’s intervention in this matter, see U.N. SCOR, 70th Sess., 7531st mtg. at 4–6, U.N. Doc. S/PV.7531 (Oct. 9, 2011). The resolution frames this matter as a matter of “international solidarity.”

(29) See supra text accompanying note 3.

(30) See, e.g., Arrangement Relating to the Issue of Identity Certificates to Russian and Armenian Refugees, May 12, 1946, 84 L.N.T.S. 2004; Arrangement Concerning the Extension to Other Categories of Refugees of Certain Measures Taken in Favor of Russian and Armenian Refugees, June 30, 1928, 89 L.N.T.S. 2006; Convention Relating to the Status of Refugees, Oct. 28, 1933, 159 L.N.T.S. 3663; Provisional Arrangement Concerning the Status of Refugees Coming from Germany, July 4, 1936, 171 L.N.T.S. 3952; Convention Concerning the Status of Refugees Coming from Germany, Feb. 10, 1938, 191 L.N.T.S. 4461.

(31) Guy S. Goodwin-Gill, THE REFUGEE IN INTERNATIONAL LAW 4 (2d ed. 1996).

(32) Guy S. Goodwin-Gill & Jane McAdam, THE REFUGEE IN INTERNATIONAL LAW 17–18 (3d ed. 2007).

(33) Id. at 18–19; Constitution of the International Refugee Organization, Dec. 15, 1946, 18 U.N.T.S. 3, Annex 1, Part 1, § C, ¶ 1(a). For a detailed explanation of the institutional background of refugee law and its impact, see Karatani, supra note 13, at 529–30.

(34) It should be noted that not everyone who falls under the above-mentioned definition is entitled, according to the Convention, to receive international protection as a refugee. The Convention describes categories of persons whose status as refugees should be terminated. See Refugee Convention, supra note 18, art. 1(C) cessation clause. Article 1(D) mentions that the Convention does not apply “to persons who are at present receiving from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees protection or assistance.” It is due to this article that Palestinians are not considered to be refugees, as they receive assistance from UNRWA. See also art. 1(E). Finally, some are excluded from being defined as refugees, according to art. 1(F).

(35) On the active role of Jewish NGOs in the drafting process of the Refugee Convention, see, for example, Gilad Ben-Nun, The British–Jewish Roots of Non-Refoulement and Its True Meaning for the Drafters of the 1951 Refugee Convention, 28 J. REFUGEE STUD. 93 (2015); Gilad Ben-Nun, The Israeli Roots of Article 3 and Article 6 of the 1951 Refugee Convention, 27 J. REFUGEE STUD. 101 (2014).

(36) Protocol Relating to the Status of Refugees, Jan. 31, 1967, 606 U.N.T.S. 267.

(37) OAU Convention, supra note 19.

(38) See, e.g.,Peter C. Godfrey, Defining the Social Group in Asylum Proceedings: The Expansion of the Social Group to Include a Broader Class of Refugees, 3 J.L. & POL’Y 257 (1994); Isabelle R. Gunning, Expanding the International Definition of Refugee: A Multicultural View, 13 FORDHAM INT’L L.J. 35 (1989). Carlos Ortiz Miranda, Toward a Broader Definition of Refugee: 20th Century Development Trends, 20 CAL. W. INT’L L.J. 315 (1989).

(39) See, e.g., UNHCR, HANDBOOK ON PROCEDURES AND CRITERIA FOR DETERMINING REFUGEE STATUS UNDER THE 1951 CONVENTION AND THE 1967 PROTOCOL RELATING TO THE STATUS OF REFUGEES (reedited 1992).

(40) Santhosh Persaud, Protecting Refugees and Asylum Seekers Under the International Covenant on Civil and Political Rights (UNHCR, Research Paper No. 132, 2006),http://www.unhcr.org/4552f0d82.pdf; Michelle Foster, INTERNATIONAL REFUGEE LAW AND SOCIO-ECONOMIC RIGHTS 27–86 (2007).

(41) Eyal Benvenisti, Reclaiming Democracy: The Strategic Uses of Foreign and International Law by National Courts, 102 AM. J. INT’L L. 241 (2008).

(42) Id.

(43) Maryellen Fullerton, The International and National Protection of Refugees, in GUIDE TO INTERNATIONAL HUMAN RIGHTS PRACTICE 247 (Hurst Hannum ed., 4th ed. 2004).

(44) Cf. Eyal Benvenisti & George W. Downs, Democratizing Courts: How National and International Courts Promote Democracy in an Era of Global Governance, 46 N.Y.U. J. INT’L L. & POL. 741 (2013); Stephen H. Legomsky, Fear and Loathing in Congress and the Courts: Immigration and Judicial Review, 78 TEX. L. REV. 1615 (1999–2000).

(45) UNHCR, THE UNHCR TOOL FOR PARTICIPATORY ASSESSMENT IN OPERATIONS (2006), http://www.unhcr.org/publications/legal/450e963f2/unhcr-tool-participatory-assessment-operations.html.

(46) THE UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES (UNHCR): THE POLITICS AND PRACTICE OF REFUGEE PROTECTION INTO THE 21ST CENTURY (Alexander Betts, Gil Loescher & James Milner eds., 2008); Martin Gottwald, Competing in the Humanitarian Marketplace: UNHCR’s Organizational Culture and Decision-Making Process (UNHCR, Research Paper No. 190, 2010), http://www.unhcr.org/research/working/4cb41ef49/competing-humanitarian-marketplace-unhcrs-organizational-culture-decision.html.

(47) See GOODWIN-GILL, supra note 31, at 126, 129. However, Goodwin-Gill does not seem to think that a broader version of the principle has developed to the degree that it constitutes a rule of customary international law. Id. at 171. For a different view, according to which the principle is, in fact, a rule of customary international law, see Robert L. Newmark, Non-Refoulement Run Afoul: The Questionable Legality of Extraterritorial Repatriation Programs, 71 WASH. U. L.Q. 833, 845 (1993).

(48) This is not the only basis for prohibitions on deportations of persons. See the prohibition in the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment art. 3(1), Dec. 10, 1984, 1465 U.N.T.S. 85. See also Jane McAdam, COMPLEMENTARY PROTECTION IN INTERNATIONAL REFUGEE LAW 111–35 (2007); the prohibition in the Geneva Convention Relative to the Protection of Civilian Persons in Time of War art. 45, Aug. 12, 1949, 75 U.N.T.S. 287; the prohibition in the International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171 (especially arts. 6–7); the prohibition in the European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocol Nos. 11 and 14 arts. 2–3, Nov. 4, 1950, 213 U.N.T.S. 222. See also MCADAM, supra, at 136–72 (2007); the prohibition in the Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S. 3; see also, MCADAM, supra, at 173–96 (2007). Some states also temporarily refrain from refoulement of individuals of certain nationalities, when their countries of origin are undergoing extreme crises. See Joan Fitzpatrick, Temporary Protection of Refugees: Elements of a Formalized Regime, 94 AM. J. INT’L L. 279, 289 (2000). Similar arrangements can be found in regional treaties. The principle was also reinforced in declarations and resolutions of international and regional organizations, including the UNHCR, and states’ practices. See GOODWIN-GILL, supra note 31, at 124–37.

(49) The relationship between extradition and the idea of non-refoulement is described in GOODWIN-GILL, supra note 31, at 147–50. See also Myron Weiner, The Clash of Norms: Dilemmas in Refugee Policies, 11 J. REFUGEE STUD. 433 (1998).

(50) See GOODWIN-GILL, supra note 31, at 117–18.

(51) Id. at 118–19.

(52) Different exceptions to the principle of non-refoulement were emplaced from the very first versions of it. See id. at 118–20.

(53) Gerald L. Neuman, Buffer Zones Against Refugees: Dublin, Schengen, and the German Asylum Amendment, 33 VA. J. INT’L L. 503, 505 (1993).

(54) Christian Tomuschat, A Right to Asylum in Europe, 13 HUM. RTS. L.J. 257, 259 (1992).

(55) See Veit Bader, The Ethics of Immigration, 12 CONSTELLATIONS 331, 340 (2005).

(56) See, e.g., M.S.S. v. Belgium, 2011 Eur. Ct. H.R; Plaintiff M70/2011 v. Minister for Immigration and Citizenship (2011) 244 CLR 144 (Austl.); John Doe et al. v. Canada, Case 12.586, Inter-Am. Comm’n H.R., Report No. 24/11 (2011), http://www.oas.org/en/iachr/decisions/2011/CAPU12586EN.doc; Hirsi Jamaa v. Italy, 2012 Eur. Ct. H.R., http://hudoc.echr.coe.int/eng?i=001-109231.

(57) Susan Martin et al., The Impact of Asylum on Receiving Countries, in POVERTY, INTERNATIONAL MIGRATION AND ASYLUM 99, 103–05 (George J. Borjas & Jeff Crisp eds., 2005).

(58) See Isabelle Swerissen, SHARED RESPONSIBILITY IN INTERNATIONAL REFUGEE LAW 5 (2011),http://www.sharesproject.nl/wp-content/uploads/2012/03/Report-Expert-Seminar-Refugee-Law-2.pdf.

(59) Sometimes State A bears the responsibility of providing for refugees which State B has created through foreign intervention or occupation. Id. at 13–14.

(60) For a detailed description of the different theoretical explanations of immigration patterns, see Massey et al., supra note 26.

(61) Leo Dobbs, World Refugee Day: UNHCR Report Finds 80 Per Cent of World’s Refugees in Developing Countries, UNHCR (June 11, 2011), http://www.unhcr.org/4dfb66ef9.html. However, this situation could change in the future as globalization spreads and it becomes easier and less expensive to move from one place to another.

(62) James L. Carlin, Significant Refugee Crises Since World War II and the Response of the International Community, 3 MICH. Y.B. INT’L LEGAL STUD. 3, 12–21 (1982).

(63) Peter Schuck, Refugee Burden-Sharing: A Modest Proposal, 22 YALE J. INT’L L. 243, 273 (1997).

(64) This is evident from a close inspection of the UNHCR statistical reports, which show migrations from countries of origin to neighboring and often equally poor and unstable countries of asylum. See UNHCR, STATISTICAL YEARBOOK 2014, 26–39 (2015), http://www.unhcr.org/56655f4b19.html. See also Benjamin Cook, Note, Methods in Its Madness: The Endowment Effect in an Analysis of Refugee Burden-Sharing and Proposed Refugee Market, 19 GEO. IMMIGR. L.J. 333 (2004).

(65) Cook, supra note 64.

(66) Astri Suhrke, Burden-Sharing During Refugee Emergencies: The Logic of Collective Versus National Action, 11 J. REFUGEE STU. 396, 397 (1998). Suhrke argues that Western states that seek to minimize the number of refugees in their territory are actually “free-riders” in the collective effort to maintain global security. Id. at 400.

(67) International law deals with responsibility sharing in addressing the problems of climate change, pollution, security, peacekeeping, and even immigration specifically. See Eiko R. Thielemann & Torun Dewan, The Myth of Free-Riding: Refugee Protection and Implicit Burden-Sharing, 29 W. EUR. POL. 351 (2006). See also U.N. Charter arts. 55 & 56; G.A. Res. 2625 (XXV), Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations (Oct. 24, 1970); International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993 U.N.T.S. 3; G.A. Res. 41/128, Declaration on the Right to Development (Dec. 4, 1986).

(68) Refugee Convention, supra note 18, pmbl.

(69) Id. art. 33. For an explanation of the principle of non-refoulement, see Sir Elihu Lauterpacht & Daniel Bethlehem, The Scope and Content of the Principle of Non-Refoulement: Opinion, in REFUGEE PROTECTION IN INTERNATIONAL LAW 89 (Erika Feller et al. eds., 2003).

(70) Gerald L. Neuman, Buffer Zones Against Refugees: Dublin, Schengen, and the German Asylum Amendment, 33 VA. J. INT’L L. 503, 505 (1993).

(71) Suhrke offers the examples of the post-World War II resettlement program, the Vietnamese resettlement program, and burden sharing in Europe in the 1990s to illustrate ad hoc responsibility-sharing efforts. Suhrke, supra note 66, at 405. See also Peter Schuck, Refugee Burden-Sharing: A Modest Proposal, 22 YALE J. INT’L L. 243, 272 (1997).

(72) James C. Hathaway & R. Alexander Neve, Making International Refugee Law Relevant Again: A Proposal for Collectivized and Solution-Oriented Protection, 10 HARV. HUM. RTS. J. 115, 117 (1997).

(73) For recent discussions on the need to share the responsibility of providing for refugees, see, e.g., EU “Must Share Burden of Asylum,” BBC NEWS, June 6, 2007, http://news.bbc.co.uk/2/hi/europe/6727637.stm (examining the issue of offering assistance to countries like Malta and Spain, which bear a disproportionate burden); US/Australia: Refugee Deal Trades Human Lives, HUMAN RIGHTS WATCH (Apr. 11, 2007), https://www.hrw.org/news/2007/04/18/us/australia-refugee-deal-trades-human-lives.

(74) Schuck, supra note 71, at 246–47 (1997).

(75) Cook, supra note 64, at 342–43.

(76) Suhrke, supra note 66, at 397; Cook, supra note 64, at 340–41.

(77) The most notable regional instrument regulating responsibility sharing is the Convention Determining the State Responsibility for Examining Applications for Asylum Lodged in One of the Member States of the European Community, June 15, 1990, 1997 O.J. (C 254) 1 (1991) (Dublin Convention).

(78) Tally Kritzman-Amir, Not in My Back Yard: On the Morality of Responsibility Sharing in Refugee Law, 34 BROOK. INT’L L. J. 381–82 (2009).

(79) Ann Vibeke Eggli, MASS REFUGEE INFLUX AND THE LIMITS OF PUBLIC INTERNATIONAL LAW 131 (2002).

(80) Division of International Protection, UNHCR RESETTLEMENT HANDBOOK, http://www.unhcr.org/46f7c0ee2.html (2011).

(81) On relieving the pressure on frontline states, see Council of the European Union, Outcome of the Council Meeting, 3408th Council Mtg. (Sept. 14, 2015), http://data.consilium.europa.eu/doc/document/ST-11969-2015-INIT/en/pdf. On the agreement between Turkey and the European Union see Fact Sheet, Implementing the EU-Turkey Agreement—Questions and Answers, EUROPEAN COMMISSION (Apr. 4, 2016), http://europa.eu/rapid/press-release_MEMO-16-1221_en.htm?locale=en; Peter Foster, The EU’s Deal with Turkey Is Harsh on Migrants—But the Alternative Is Total Chaos, TELEGRAPH, Mar. 30, 2016, http://www.telegraph.co.uk/opinion/2016/03/30/the-eus-deal-with-turkey-is-harsh-on-migrants--but-the-alternati/; Orçun Ulusoy, Turkey as a Safe Third Country?, BORDER CRIMINOLOGIES BLOG (Mar. 29, 2016), https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2016/03/turkey-safe-third.

(82) Helena Smith, Greece on Brink of Chaos as Refugees Riot over Forced Return to Turkey, GUARDIAN, Apr. 3, 2016, http://www.theguardian.com/world/2016/apr/02/greece-violence-refugees-riot-forced-return-to-turkey.

(83) See Swerissen, supra note 58, at 5.

(84) See, e.g., Kritzman-Amir, supra note 78.

(85) Agnes Hurwitz, THE COLLECTIVE RESPONSIBILITY OF STATES TO PROTECT REFUGEES 5 (2009).