The Missing Link in Migration Governance: An Advisory Opinion by the International Court of Justice

Even though the International Court of Justice (ICJ) has jurisdiction to resolve disputes on the interpretation and application of the 1951 Refugee Convention (Art. 38) and the 1967 Protocol (Art. IV), it has so far not adopted any relevant judgment or advisory opinion. States have not shown interest in activating the Court’s jurisdiction with regard to the Refugee Convention, but they have done so in a variety of disputes broadly linked to transboundary movement of persons or to international protection: Latin American diplomatic asylum (Asylum and Haya de la Torre cases), consular assistance (LaGrand  and Avena cases), and extradition, arrest  or surrender of persons suspected of war crimes and crimes against humanity (Arrest Warrant and Habré cases), and terrorism (Lockerbie case).

As the world currently faces the worst migration crisis since WW II in terms of destabilization potential, due to the combined effects of the wars in Libya and Syria, and poverty in the Sahel, it is time to consider the challenges and benefits of the potential involvement of the ICJ in the global efforts of migration management and international protection. There are three questions to discuss, (a) necessity, (b) feasibility and (c) contribution of a potential ICJ ruling.

(a) Necessity

The involvement of the ICJ is necessary in view of clarifying and adapting core elements of the principle of non-refoulement to the contemporary conditions of migration management. This function cannot be fulfilled on a universal level by any other jurisdictional or quasi-jurisdictional mechanism.

In the first place, non-refoulement should be interpreted in view of the principles of burden-sharing and solidarity. Non-refoulement may be the core principle of the Refugee Convention, but due to the time that has elapsed since the adoption of the Convention, state practice has undergone a rapid change, which has not always been free of controversy. Thus, it is necessary to clarify the meaning of the concept of safe third country and safe country of origin, and the modalities of relocating refugees through bilateral or multilateral arrangements, depending on the reception capacities and financial resources of the States involved.

Second, these issues cannot be authoritatively answered by alternative mechanisms. The system of the Refugee Convention does not include a quasi-judicial body of independent experts selected through a transparent procedure with the authority to decide disputes and to adopt General Comments similar to other human rights bodies (for instance, the Human Rights Committee). The UNHCR is an agency exercising international public authority with limited power of adjudication, and only in cases of Refugee Status Determination, but its activities and standpoints are characterized by a blend of law, policy, and pragmatism. The ExCom Conclusions and the UNHCR Guidelines are soft law instruments or expert opinions, but not authoritative interpretations of international law. Last, but not least, the monitoring and reporting mechanism under Arts. 35 and 36 of the Refugee Convention falls short of the system later agreed for human rights treaties.

The lack of a system of authentic interpretation on a universal level is responsible for the absence of generally accepted standards for the interpretation of non-refoulement and burden-sharing. The gap has been partially filled by national courts and by the CJEU that interpret the Refugee Convention through the lenses of their own constitutional systems and national or supranational interests. From the perspective of the Convention, however, these interpretations appear as discontinued interpretative alternatives that may inform our understanding of the universal rules, but are not authentic interpretations that draw a line between past and future. Furthermore, States, civil society organizations and the UNHCR engage in a continuous struggle for the semantic domination of the Convention, amplifying the indeterminacy of the rules. As a result, the evolution of non-refoulement as a universal principle cannot reach crystallization points, but, instead, the fundamentally normative character of the principle gives way to a more open principle, which becomes increasing incapable of stabilizing normative expectations. Thus, policies (and politics) tend to displace law, instead of being structurally coupled to it.

To prevent any misunderstanding, I do not argue that the Refugee Convention should homogenize refugee protection across the world. Such an enterprise would not only be counterproductive, but would contradict the rationale of regionalization of international law that enables local jurisdictions to adapt the rules to the local conditions. Instead, I argue that regionalization presupposes a minimal but well-circumscribed center of gravity holding the system together. A clear understanding of the principle of non-refoulement as treaty law and as customary international law applicable to refugees and persons fleeing war and human rights violations is necessary in order to preserve the constitutional basis of the universal system of protection.

(b) Feasibility

There are different prospects for activating the Court via an application by a State or via a request for an advisory opinion. A State may apply against another State for alleged violations of the Refugee Convention or of the customary principle of non-refoulement. The chances that a State might decide to use this avenue are slim. The applicant must have a strong interest in the outcome of such a case, engage in a long and complex judicial contest, and possibly harm, at least temporarily, its relations with the respondent. Moreover, the ICJ has interpreted the existence of a ‘dispute’ as a condition of its jurisdiction rather narrowly in the recent cases Georgia v. Russian Federation (2011) and Marshall Islands v. UK (2016). The applicant must establish that a bilateral dispute exists, and it is not sufficient to provide evidence of its existence through general statements in international fora. Thus, the Court excluded in principle the possibility of an actio popularis that would serve the international interest. Finally, even if the existence of a bilateral dispute could be established, it is in no way certain that it would focus on the issues of major significance for the international community; it would probably be tailored to the specifics of that dispute.

More promising would be a request for an advisory opinion by the UN General Assembly. The feasibility problems here are of a broader political order, because the UN Member States should be convinced to adopt a resolution requesting an advisory opinion. State and non-state actors would initially hesitate to take such an initiative, because they would be unwilling to assume the procedural risk. Civil society and UNHCR would probably fear a conservative opinion that would restrict refugee rights. States would fear that the ICJ would revisit the Convention in a more liberal spirit.

The fact is that nobody can predict the outcome of an advisory opinion. The Court has been occasionally ‘conservative’, as in the Opinion on the Threat or Use of Nuclear Weapons, or ‘progressive’, as in the Opinion on the Construction of a Wall. Thus, indeed, the procedural risk is not negligible. The main actors would prefer to carry on the contest on refugee rights v. state sovereignty and, if they lose a battle, they can hope to fight another day. A realistic possibility for a mobilization in the General Assembly would be to create a ‘coalition of the most heavily burdened’, e.g. Europe and Africa, arguing for global burden-sharing as a principle of international law, to be applied alongside the principle of non-refoulement.

(c) Contribution: Advancing migration governance

The advancement of migration governance will benefit first and foremost migrants and refugees, because the ICJ would be given the opportunity to clarify the discretion of States with regard to the management of inflows and would formulate the corresponding guarantees for refugee rights. So far, the legal discussion on non-refoulement has been focusing on the paradigm of access to the territory of the host country, whilst the real problem is the prevention of return to the country of origin and the granting of effective protection to groups of persons through a variety of policy instruments. The clash of these two alternatives is already taking place, but in a rather ‘crude’ manner. Civil society organizations demand freedom of access for migrants and refugees towards their desired destinations, even as the EU externalizes or refuses protection without a clear understanding of the concept of the safe third country or non-refoulement.

By interpreting the Refugee Convention and customary international law, the ICJ can be expected to review non-refoulement and interlinked rights taking the flanking principles of burden-sharing and solidarity into account. The protection of refugees cannot depend on circumstance, but should be based on a system of regional and global distribution of various categories of burdens and costs. As the global refugee crisis is a matter affecting international peace and security, it is obvious that the P5 and other major powers should play a pivotal role in the global protection system.

Non-refoulement cannot be interpreted as a static obligation of states to protect refugees who choose or happen to arrive in their territories, but has to be embedded in a transnational (regional and/or global) migration management context. This is also the meaning of the efforts currently undertaken by the UN General Assembly on the two global compacts on refugees and migration (New York Declaration 2016). Notwithstanding these efforts, the envisaged compact on refugees should not be conceived as a policy instrument separate from the Convention, but as a framework for its implementation, enabling a variety of migration management policies. The combined effect of an advisory opinion and the compact would strengthen normative expectations on international protection and would enable an adaptation of the Convention to the requirements of the time. The recent departure of the United States from the consultations on the global compacts (see The Guardian) makes such a linkage ever more apposite, because it would strengthen normative expectations at a crucial juncture for international relations. Moreover, even if some states can be expected to reject a potential advisory opinion as formally non-binding, its authoritative character will have a long-term impact on the domestic legal systems and on international practice.

The ICJ should recognize the obligation of States to enter into arrangements for migration management and their broad discretion with regard to the choice of the appropriate means,  and should indicate the ‘minimum standards’ compatible with the Convention and human rights law, including the determination of the concept of safe third countries and the legal status of those intercepted on the high seas. The Court could be expected to decide that protection in the region of origin of the refugees would not violate the Convention per se (see Hathaway and Neve, already in 1997), that the relocation of refugees would not, in principle, require their consent, and that all states should participate in regional, trans-regional or global  agreements on burden-sharing either through financial contributions or through relocation and resettlement. Moreover, protection in situations of mass inflow could have a temporary character and would not lead necessarily to resettlement. The Opinion would also clarify the obligations of states with regard to the social and economic rights of beneficiaries of international protection.

An advisory opinion by the ICJ responding to an ‘honest’ and open request by the General Assembly could help establish a global consensus on the fundamentals of a ‘minimum protection order’. It would transform our perceptions on the Refugee Convention from a static to a dynamic instrument  and would facilitate regional or global arrangements for the resettlement, relocation, temporary protection and return of refugees, and on the efficient use of limited financial resources.  A precedent shows that the ICJ can be effective in that regard. In the Haya de la Torre case (1951), a non-binding suggestion by the Court had a prima facie invisible, but in the medium term positive, outcome. The ICJ suggested that the parties should find ‘a practical and satisfactory solution by seeking guidance  from those considerations of courtesy and good neighborliness which, in matters of asylum, have always held a prominent place in the relations between the Latin-American republics’ (p. 83). Thus, the Court nudged these States to conclude the Caracas Convention on Diplomatic Asylum in 1954.