Case study: International law & ethics in refugee protection

How rights and responsibilities are upheld in international law and ethics significantly shapes our understanding of the duties of States and civil societies. Dr Vicky Kapogianni explains how international law is applied in refugee protection as an example of how different perspectives on these duties lead to different outcomes.

[Note: The terms ‘refugee’, ‘asylum seeker’ and ‘migrant’ are used to describe people who are on the move, who have left their countries and have crossed borders, but what do they mean? If you’re uncertain, take a look at this article from Amnesty International which explains the differences.]

The idea that a sovereign State holds a universal responsibility to all of humanity clashes with its role as the protector of a single, geographically bounded and nationally identified set of people – its citizens. The State’s primary responsibility is to its own citizens, and the nature of ‘sovereignty’ historically allowed the exercise of power and violence against non-members without any accountability.

However, since the early 20th century, there has been a shift in the nature and extent of sovereign State responsibilities towards individuals. States now owe responsibilities to their citizens based on new grounds, like human rights law, and their responsibilities towards non-citizens within their borders have also broadened under both domestic and international law. However, duties towards non-citizens outside the State’s jurisdiction — cosmopolitan duties towards humanity at large — remain less well defined under the nation-state system despite the fact that the concept of hospitality towards others is a core principle of many of the world’s religions such as Islam and the Sikhism tradition of Langar. Back in the 18th century, the philosopher Immanuel Kant proposed that duties towards non-citizens should proceed from a concept of ‘world citizenship’, where both individuals and States are considered members of a universal community encompassing all of humanity. This ‘cosmopolitan law’ established a realm for duties directed towards humanity at large, situated between the State’s domestic and international responsibilities. Since then, States’ cosmopolitan duties have maintained this ‘in-between’ nature. Distinguished from a State’s responsibilities to its citizens and residents, these duties are theoretically grounded in ideas of hospitality, non-harm to outsiders, trusteeship, and consideration for others.

However, this raises two questions:

• what obligations does the State have to its own citizens and residents as part of humanity at large?
• and how do these obligations relate to the State’s cosmopolitan duties towards others?

The difficulty of balancing these two sets of obligations helps explain why individuals seeking international protection have different legal statuses. Those who have already reached the territory of the host country are recognised by that country as holders of human rights, shielding them from the dangers they escaped. In contrast, individuals yet to reach such territories rely on the ill-defined cosmopolitan duties of near-by States and the compassion and humanity of their citizens.

The situation is made even more complex because, instead of a straightforward ethical approach centred on assisting those in need, the ethical framework for refugee protection¹ prioritises preventing harms, particularly the violation of human rights. However, this nuanced ethical stance is not fully reflected in international refugee law, which tends to focus on the reasons for mistreatment rather than the harm that caused the individuals to flee.

This need to balance responsibilities and the mismatch between ethics and international refugee law, partly explains the numerous instances where human rights principles are compromised or neglected². States frequently respond to migration movements with barriers. Such ‘pushback’ actions³ are commonly employed as a means of deterrence, punishment, or as part of broader political strategies. But, combined with sophisticated surveillance and deterrence equipment at borders, they pose life-threatening risks for migrants⁴. The use of force by border authorities and the growing reliance on aerial technology, such as drones, has raised ethical, legal, and political questions. Despite the theoretical neutrality of technological tools, their application is often influenced by the objectives of their owners and users. For example, while aerial surveillance can identify distress situations at sea, it is mostly used to detect and intercept boats, or instruct others to do so, before they enter a State’s territorial waters. Unfortunately, thousands of migrants meet tragic fates every year attempting to cross international land and sea borders.

Addressing all these challenges requires better application of international law and ethics⁵ to ensure the protection of rights and responsibilities for all humanity in the rapidly evolving landscape of movement, digital technology and border governance. New frameworks should be sensitive to the distinct vulnerabilities of non-citizens and stateless individuals, holding governments and international organisations accountable for the ethical and responsible treatment of all the world’s citizens.

References

1. Recommended Principles and Guidelines on Human Rights at International Borders. Office of the United Nations High Commissioner for Human Rights.
2. Report on means to address the human rights impact of pushbacks of migrants on land and at sea – Report of the Special Rapporteur on the human rights of migrants. Office of the United Nations High Commissioner for Human Rights. 2021
3. Anja Radjenovic, Pushbacks at the EU’s external borders . European Parliamentary Research Service. 2021
4. Vicky Kapogianni, The Reverberations of the Rise of Fencing Border Regimes: Pushbacks, Detention and Surveillance Technologies. International Law Blog. 2022
5. Paul Tiedemann, Are There Moral Duties toward Refugees? Considerations in Legal Ethics. Laws 10 (1). 2021