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Beyond the deterrence paradigm in global refugee policy.

I. INTRODUCTION

The right to seek and enjoy asylum is at the heart of the international refugee protection regime and constitutes a key exception to state sovereignty to regulate the entry of non-citizens as a matter of international law. (2) International refugee law, however, only indirectly governs access to asylum. The 1951 Convention Relating to the Status of Refugees does not provide a right to be granted asylum in the sense of permission to enter and remain on the state's territory. (3)

Instead, the non-refoulement principle enshrined in Article 33 prohibits states from exposing refugees to the risk of being persecuted for a Convention reason. Short of a positive right to be granted asylum, the guarantee that no refugee will be sent back to a place where he or she will be persecuted constitutes the strongest commitment that the international community of states has been willing to make to those who are no longer able to avail themselves of the protection of their own government.

Today, however, refugees face serious obstacles in their efforts to access asylum processes. Some of these obstacles are inherent to irregular migration, including dangerous border crossings and the vulnerability to exploitation. Yet, refugees are also routinely denied access to asylum as a result of increasingly sophisticated migration control and deterrent mechanisms enacted by developed states.

Over recent decades an increasing number of measures have been taken to extend controls along every step of prospective refugees' journey. To this end, developed states have enlisted the help of both private companies and authorities in origin and transit countries. (4) Moreover, several countries have responded to the Syrian refugee crisis by introducing domestic deterrent mechanisms, including reduced forms of international protection short of full refugee status, mandatory detention policies and denying access to family reunification.

As a result, asylum policy in the developed world today is best characterised as a deterrence paradigm, wherein policymakers employ a wide array of non-entree measures in response to asylum-seekers arriving in developed states. (5) The 'deterrence paradigm' can be understood as a particular instantiation of the global refugee protection regime. It shows how deterrence policies have come to dominate responses to asylum-seekers arriving in developed states, and how such policies have continued to develop in response to changes in migration patterns as well as legal impositions. This also explains the continued reliance on deterrence as a response to the most recent 'crisis', despite continued calls from scholars and civil society for a more protection-oriented and sustainable response.

This essay argues that we may be seeing the beginning of the end of the deterrence paradigm. Deterrence policies are being increasingly challenged, and recent events forcefully under score that the present approach is not sustainable. More than a crisis in terms of refugee numbers and global protection capacity, the present situation should be seen as a crisis in terms of the institutionalized responses so far pursued by states, as non-entree policies face heightened challenges from multiple angles. The article explains the rise of the deterrence paradigm, before highlighting the current legal, systemic and effectiveness challenges facing the deterrence paradigm. Finally, the paper briefly points the way forward in terms of three principles fundamental to achieving a sustainable paradigm shift in global refugee policy.

II. THE RISE OF THE DETERRENCE PARADIGM

The cornerstone of the current refugee regime, the 1951 Convention Relating to the Status of Refugees, emerged in the aftermath of WWII. It established a legal regime that, despite its obvious shortcomings, (6) extended a core set of individual rights for political refugees. During the Cold War, international refugee law came to play a crucial role in legitimizing the politics of the West. (7) In the 1950s and 1960s refugee flows were primarily conceived as an East to West movement and granting asylum to defectors consequently entailed scoring ideological points. This Euro-centric approach was gradually abandoned, however, paving the way for regional instruments and the 1967 Protocol lifting the geographical limitation of the 1951 Refugee Convention. Subsequent developments in legal interpretation have further helped expand the reach and scope of the Convention, (8) while broader notions of subsidiary protection have developed as a matter of general international human rights law. (9)

The last three decades, however, have seen an increased politicization of asylum across both traditional and new asylum countries. From the 1970s, the welcoming labor immigration schemes of several European countries were abandoned. Following the end of the Cold War, receiving refugees no longer served an ideological agenda. The proxy wars of the 1980s further created large-scale displacement across several regions in the Global South. (10) At the same time, globalization has made both knowledge of faraway destinations and transcontinental transportation more readily available. And rather than conforming to the traditional image of the singular bona fide asylum-seeker, refugees are increasingly caught up in mixed flows of irregular migrants, often facilitated by human smugglers specialized in avoiding traditional forms of border control. (11)

As a result, the past thirty years have seen developed states introduce a range of policies to deter or prevent migrants and refugees from arriving at their territory or accessing their asylum systems. (12) Some measures implement procedural barriers to access asylum procedures on state territory, while others more directly sought to prevent the asylum seeker ever arriving. (13) Recent scholarship has sought to classify and characterise these various non-entree measures, which often expand on existing policies, opening a range of challenging legal questions. (14)

These developments and the wide range of deterrence measures implemented today may collectively be understood as a dominant paradigm for international refugee policy. (15) A policy paradigm can be defined as a set of shared beliefs, taxonomies and language among a community of policymakers that determine how they perceive, analyse and respond to a given policy issue. In relation to deterrence policies, the community is that of traditional asylum states and also the number of collaborating transit countries. The underlying belief of the deterrence paradigm is that developed states can successfully insulate themselves from taking on a substantive and proportional responsibility in regard to refugee protection. (16) It allows wealthy states to have their cake and eat it too: maintaining a formal commitment to international refugee law, while at the same time largely being spared the associated burdens.

Several scholars have lamented the current state of affairs, pointing out the obvious incongruence between deterrence policies and the original aspirations of the modern refugee regime. As noted by Louis Henkin, who served as the United States representative during the drafting of the 1951 Refugee Convention, in regard to the Haitian interdiction programme: 'It is incredible that states that had agreed not to force any human being back into the hands of his/her oppressors intended to leave them selves--and each other--free to reach out beyond the territory to seize a refugee and to return him/her to the country from which he sought to escape'. (17) Yet, for a long time the deterrence paradigm has served as a crude but effective solution to the growing schism between the liberal values and self-protective stance of the developed world in regard to refugee protection.

While there is no doubt that deterrence policies challenge core principles of international refugee and human rights law, (18) the deterrence paradigm is not premised on a rejection of international law as such. (19) While deterrence policies may be borne out of a sense of frustration with the limits that international law place upon states in their pursuit of more effective immigration control, (20) few states have so far directly challenged international refugee law or taken steps to withdraw from the 1951 Convention or other core human rights instruments protecting refugees. (21) Fundamentally, the logic of deterrence is premised on a concurrent willingness of less developed states towards refugee protection, where the vast majority of the world's refugees currently reside. International refugee law serves as an important tool to ensure the continued commitment of those states, and it is difficult to imagine any of the world's top refugee hosting countries agreeing to a new legal instrument that does not address this gross disparity in terms of global burden-sharing. In other words, although developed states are increasingly concerned about the commitment that international refugee law is placing upon them, receding from or renegotiating the current legal framework is hardly in these states' best interest.

Within the deterrence paradigm, international refugee law has thus far remained a set of shared rules directly or indirectly guiding action. (22) Yet, the tension between these normative commitments and differing political interests, lead states to develop policies that work at the fringes or in the interstices of international law in order to recoup sovereign maneuverability. Deterrence policies may in that sense be seen as examples of 'creative legal thinking', (23) as states seek to exploit interpretative uncertainties, competing legal regimes or new modes of governance in order to limit, shift or circumvent legal obligations otherwise owed.

III. CHALLENGES

Despite the continued reliance on non-entree policies, there are budding signs that cracks are opening in the deterrence paradigm. These challenges are coming from several sides, and involve not just its blatant negative humanitarian impact, but also its legality, the political stability of the refugee regime, and its long-term effectiveness.

Firstly, the deterrence paradigm faces ongoing legal challenges. Many non-entree policies, such as pushbacks and offshore asylum processing, seek to shift responsibility for asylum seekers to third states. However, recent developments in the extraterritorial application of non-refoulement, for example, mean the principle applies wherever states exercise jurisdiction, including when carrying out migration control on the high seas or within foreign territory. (24) Further, increasing attention to the establishment of shared responsibility for international deterrence polices presents another legal challenge. (25) Developments in shared state responsibility--be it independent, joint or derivative--open up the possibility of holding two or more states responsible for the violations of primary obligations that occur in the course of deterrence policies. (26)

While legal impositions are nothing new to the deterrence paradigm, refugee and human rights law has proved capable of imposing certain limits on state action in this arena. Just as the history of deterrence policies provide several examples of successful legal challenges, current developments in both human rights and refugee law are increasingly undercutting state policies.

Secondly, a continuation of the current approach thus creates a systemic risk to the entire refugee protection regime. Looking at the developments over recent years, it is hard to imagine the current refugee protection regime will survive much longer without some more meaningful displays of international solidarity. While the refugee regime is, at least in principle, based on some level of burden-sharing between states, the deterrence paradigm seeks to quell, to the greatest extent possible, spontaneous arrivals of asylum-seekers at the borders of states in the Global North. As a result, today 86% of the world's refugees reside in developing countries, against 70% just twenty years ago. The deterrence paradigm has pushed several major refugee-hosting states to breaking point, with the potential to create a domino effect of refugee protection in these countries collapsing or states simply turning their back on the refugee regime as it currently stands. The perception that different rules apply to the EU and other wealthier states that can simply isolate themselves from taking on a comparable commitment is deeply counter-productive and only risks prompting more of the world's major refugee-hosting states, most recently Kenya, (27) to pursue self-interested and restrictive policies. Moreover, the success of arrangements such as the Turkey-EU deal ultimately depends on the continued willingness of these countries to continue to host most of the world's refugees without any substantial form of burden-sharing.

In this sense, the current refugee protection crisis represents a classical collective action problem. There can be little doubt that not only the world's refugees but also states would greatly benefit from a more open and coordinated response. Yet, no states will be willing to unilaterally expand access to asylum if this would entail unrealistic financial or political expectations, if there is no international solidarity, or if other states do not follow suit.

Finally, the present situation fundamentally questions the continued effectiveness of current deterrence efforts. As is well documented, refugees remain resourceful despite the plight they are forced to endure, and many exhibit extraordinary resilience in their efforts to find safety and protection. So far, migration control measures at the EU's external borders have not prevented rising numbers of asylum-seekers in European countries. (28) Deterrence measures are moreover challenged by the growing amount of resources available to human smugglers and the constant innovation and adaption that this migration industry exhibits.

While specific deterrence measures may be successful in stemming a particular in the short-term, smuggling techniques and displacement of migration flows towards alternative routes often significantly, if not completely, undermine the effect over time. The recently concluded EU-Turkey deal is one such example. Politically hailed as a success in terms of lowering the numbers of asylum-seekers along the so-called Balkan route, the number of refugees and migrants using the Central Mediterranean route via Egypt or Libya has dramatically increased during the same period. Available data suggests that those arriving via the Central Mediterranean route are mainly different nationalities than those previously pursuing the Balkan route, yet it sends a signal that alternative routes are available. For those currently blocked onward passage from Turkey, we may thus well expect a similar displacement effect. As long as the agreement does not provide the promised 'alternative to putting their lives at risk', (29) we may thus expect a similar displacement effect for those currently blocked onward passage from Turkey. The humanitarian cost of such a displacement is further clear--refugees are 20 times more likely to lose their lives crossing the Central Mediterranean route than the now unavailable Balkan route from Turkey to Greece. (30)

Direct and indirect costs related to deterrence are finally mounting. In the Asia-Pacific, Australia's detention of asylum-seekers both onshore and offshore cost USD2.17 billion in 201415 alone. (31) Third states have further become much more adept at negotiating agreements on migration control and readmission. In the European context, Libya negotiated a payment of 5 billion Euros by Italy in compensation for colonial damages when negotiating their 2007 Treaty of Friendship, Partnership and Cooperation. (32) More recently, Turkey has obtained EU agreement to expedite accession negotiations, accelerate visa liberalization, and provide 3 billion Euros to assist Turkey in providing refugee protection, as discussed above. The response of various EU Member States in reintroducing border controls in the Schengen area are also likely to incur significant financial risk in relation to commuting workers, tourism, and trade in goods and services. A recent study projects that would Schengen be entirely abandoned, the EU would experience an annual drop in GDP of 230 billion Euros. (33) Policies to limit access to family reunification may similarly risk negatively impacting the ability to attract labour migration in needed sectors, or even deter nationals from returning to the domestic labour market after a period abroad.

In sum, it is at least questionable whether European deterrence policies continue to remain effective in light of the current situation and increasing pressure currently experienced. As a counterfactual, Australian deterrence policies have so far proved ruthlessly effective in 'stopping the boats'. Through the use of a combination of push-backs and offshore processing, the number of asylum-seekers reaching Australia dropped from 20,587 in 2013 to zero in 2015. However, the Australian government appears to have no 'exit plan' for refugees waiting for a durable solution in other Pacific states. This suggests that deterrence may be effective in deterring small numbers of refugees a great distance from the asylum state. However, it remains difficult to imagine the Australian model being brought to scale in situations of mass influx and its ongoing sustainability remains in question. And even if deterrence measures may shift the burden of protection to less developed states, there is no evidence that it dissuades asylum claims or reduces the need for international protection globally. (34)

Of course, many of these challenges are hardly new, and one may object that so far such 'anomalies' have been handled entirely through incremental or innovative adjustments to deterrence policies. Yet, as various challenges accumulate, patchwork solutions gradually become harder to sustain. Taken together, the above challenges suggest that the deterrence paradigm is neither long-term, nor perhaps even medium-term, sustainable. And the detrimental results of deterrence are becoming increasingly clear: systematically blocking access to refugee protection and forcing refugees to risk their lives in order to reach safety feed a transnational criminal industry of human smuggling, pushing the protection capacity of developing states to the brink.

IV. CONCLUSION: TOWARDS A MORE SUSTAINABLE GLOBAL REFUGEE POLICY

While developed states may continue to return to the well of deterrence policies in the near future, the current situation in Europe demonstrates a need for more fundamental rethinking. Yet, while the evidence that the current paradigm is failing is mounting, we have still to reach agreement on a sufficiently politically acceptable alternative. At present, several more or less thought-through alternatives have been tabled by both policymakers and academics, but none of these have so far gained sufficient political traction to initiate actual paradigm shifts in terms of global refugee policy. Nevertheless, to prove sustainable any subsequent paradigm must as a minimum successfully address the core problems left by the existing paradigm.

Firstly, a new paradigm ought to reaffirm substantive commitment to the normative refugee regime. The 1951 Convention remains capable of handling mass movement of refugees in a pragmatic way sensitive to the interests of states. The Convention remains an essential framework guaranteeing freedom from refoulement and empowering states with regard to domestic asylum systems and excluding people who present a serious criminal or security threat. Over the last 65 years, the 1951 Convention has thus proven itself a flexible and robust instrument, laying down a rights framework which ought to remain at the core of any political reform process.

Secondly, the current crisis calls for distributive justice among developed and developing States. Achieving perfect egalitarian allocation of refugees among the world's states is impossible, but meaningful burden-sharing through pragmatic solidarity mechanisms is quite possible. Such a common but differentiated approach implies that while all states must contribute in a proportionate and meaningful manner, not all states need provide the same kind of commitment. (35) The only way to ensure the continued willingness of these states to open their borders is through a significant and systematic commitment to responsibility-sharing through, for example, resettlement quotas and humanitarian visa programmes.

Finally, effective policymaking in a new regime must look beyond simply access to asylum. Basic physical safety and humanitarian assistance is the starting point--but not end game of refugee protection and is therefore linked to wider concerns related to meaningful protection, socio-economic rights, the availability of livelihoods, and integration strategies. Data from the Syrian crisis clearly shows that these other rights are equally important if refugees are to establish a life and not feel compelled to move onward. Relatedly, a second element paving the way for more effective policymaking is increased refugee preparedness. Any new paradigm must move beyond the reactive approach of individual states awaiting the arrival of refugees on their territories. Planning for and cooperation in regard to refugee arrivals is essential in ensuring that refugees and irregular migration appear to states and their publics as being manageable and under control.

Thomas Gammeltoft-Hansen * & Nikolas Feith Tan **

* Professor Thomas Gammeltoft-Hansen is Research Director at the Raoul Wallenberg Institute for Human Rights and Humanitarian Law, Lund University. He is also a member of the Danish Refugee Appeals Board and regularly advises governments and international organisations about asylum and immigration policy.

** Nikolas Feith Tan is a PhD Fellow at Aarhus University and the Danish Instititue for Human Rights. He is currently a Legal Advisor to the Danish Refugee Council.

(1.) The present essay draws on and is partly adapted from work prepared by the same authors for two other publications, Access to Asylum in UNHCR (ed.), in THE STATE OF THE WORLDS REFUGEES (Oxford Univ. Press, 2017) (forthcoming Aug. 2017) and The End of the Deterrence Paradigm? Future Directions for Global Refugee Policy, 4 J. MIGRAT'N & HUM. SEC. (2016) (forthcoming 2016).

(2.) Thomas Gammeltoft-Hansen & Hans Gammeltoft-Hansen, The Right to Seek Revisited: On the UN Human Rights Declaration Article 14 and Access to Asylum Procedures in the EU, 10 EUR. J. MIGRAT'N & L. 439-459 (2008), available at http://sta ticl.l.sqsqcdn.com/static/f/783613/17655783/1334334977277/The+Right+to+Seek+Re visited.pdf?token=sQfbqaeRkkhzmFwQiXBLgdMIjfo%3D; Vincent Chetail, The Transnational Movement of Persons Under General International Law: Mapping the Customary Law Foundations of International Migration Law, in RESEARCH HAND BOOK ON INTERNATIONAL LAW AND MIGRATION 1, 27f (Vincent Chetail & Celin Bauloz eds., 2014).

(3.) Guy Goodwin-Gill, The Dynamic of International Refugee Law, 25 INT'L J. REFUGEE L 651, 654 (2014); GREGOR NOLL, NEGOTIATING ASYLUM: THE EU ACQUIS, EXTRATERRITORIAL PROTECTION AND THE COMMON MARKET OF DEFLECTION 387 (Martinus Nijhoff, ed., 2000).

(4.) Thomas Gammeltoft-Hansen & James C. Hathaway, Non-refoulement in a World of Cooperative Deterrence, 53 Colum. J Transnat'l L., no. 2, 235-85(2015); THOMAS GAMMELTOFT-HANSEN, ACCESS TO ASYLUM: INTERNATIONAL REFUGEE LAW AND THE GLOBALISATION OF MIGRATION CONTROL (Cambridge Univ. Press 2011).

(5.) Thomas Gammeltoft-Hansen & Nikolas Feith Tan, Access to Asylum in UNHCR (ed.), in THE STATE OF THE WORLDS REFUGEES (Oxford Univ. Press 2017) (forthcoming Aug. 2017).

(6.) The drafters of the Convention shied away from establishing a positive right to seek and be granted asylum in line with Article 14 of the Universal Declaration adopted just three years earlier, in favour of a more limited, negative duty of nonrefoulement. Further, the drafters did not set out a positive burden-sharing mechanism, instead calling for international cooperation in recital 4 of the Convention's preamble.

(7.) See generally Matthew J. Gibney, & Randall Hansen, Asylum Policy in the West: Past Trends, Future Possibilities, United Nations Univ., World Inst, for Dev. Econ. Research, Discussion Paper No. 2003/68 (Sept. 2003), available at https://www .wider.unu.edu/sites/default/files/dp2003-068.pdf; B.S. Chimni, The Geopolitics of Refugee Studies and the Practice of International Institutions: A View From the South 11 J. REFUGEE STUD. 350 (1999), available at http://jrs.oxfordjournals.Org/content/ll/4/ 350.2.full.pdf+html.

(8.) Despite political contestation and lack of strong supervisory institutions, interpretation of the 1951 Refugee Convention has remained surprisingly dynamic both in terms of its scope ratione personae (e.g. in regard to persons fleeing gender-related persecution, persecution because of their sexual orientation or persecution from nonstate actors) and ratione loci (notably in regard to the geographical reach of the nonrefoulement principle enshrined in Article 33). See generally Goodwin-Gill, supra note 3; Thomas Gammeltoft-Hansen, "Creative Legal Thinking" and the Evolution of International Refugee Law, 14 LAKIMIES 99 (2014).

(9.) JANE MCADAM, COMPLEMENTARY PROTECTION IN INTERNATIONAL REFUGEE LAW (Oxford Univ. Press 2007).

(10.) UNITED NATIONS HIGH COMMISSONER FOR REFUGEES (UNHCR), THE STATE OF THE WORLD'S REFUGEES: IN SEARCH OF SOLUTIONS, ch.5 (Oxford University Press 2000).

(11.) See generally Gibney & Hansen, supra note 7; STEPHEN CASTLES & MARK J. MILLER, THE AGE OF MIGRATION: INTERNATIONAL POPULATION MOVEMENTS IN THE MODERN WORLD (Guilford Press, 3rd ed. 2003); Laura Barnett, Global Governance and the Evolution of the International Refugee Regime (United Nations High Comm'r for Refugees, Working Paper No. 54, 2002) http://www.refworld.org/docid/ 4ff54f442.html; Aristide Zolberg, Beyond the Crisis, in GLOBAL MIGRANTS, GLOBAL REFUGEES: PROBLEMS AND SOLUTIONS 1-19 (Peter M. Benda & Aristide Zolberg eds., Berghahn Books 2001).

(12.) James Hathaway, The Emerging Politics of Non-Entree 91 REFUGEES 40-41 (1992).

(13.) Jens Vedsted-Hansen, Non-Admission Policies and the Right to Protection: Refugees' Choice vs. States' Exclusion?, in REFUGEE RIGHTS AND REALITIES: EVOLVING INTERNATIONAL CONCEPTS AND REGIMES 269-288 (Frances Nicholson and Patrick Twomey eds., Cambridge Univ. Press 1999); Joanne van Selm, Access to Procedures, 'Safe Third Countries', 'Safe Countries of Origin' and 'Time Limits' (United Nations High Comm'r for Refugees and the Carnegie Endow't for Int'l Peace, Background Paper, Geneva 2001), available at www.unchr.org/3b39a2403.pdf.

(14.) See Gammeltoft-Hansen & Hathaway, supra note 4; Gammeltoft-Hansen & Feith Tan, supra note 5.

(15.) The concept of paradigm in this context is principally derived from Thomas Kuhn and subsequent work translating his work into the field of public policy. See e.g., THOMAS KUHN, THE STRUCTURE OF SCIENTIFIC REVOLUTIONS (Univ. of Chicago Press 1962); Peter A. Hall, Policy Paradigms, Social Learning, and the State: The Case of Economic Policymaking in Britain 25 Comp. Pol. 275-296 (1993); POLICY PARADIGMS IN THEORY AND PRACTICE: DISCOURSES, IDEAS AND ANOMALIES IN PUBLIC POLICY DYNAMICS (John Hogan & Michael Howlett eds., Palgrave Macmillan UK 2015).

(16.) Gammeltoft-Hansen & Hathaway, supra note 4.

(17.) Louis Henkin, Notes from the President, ASIL NEWSLETTER, (Sept.-Oct. 1993).

(18.) See GENERALLY GAMMELTOFT-HANSEN, supra note 4.

(19.) Thomas Gammeltoft-Hansen, The Role of International Refugee Law in Refugee Policy 27 J. REFUGEE STUD. 574 (2014).

(20.) As Hathaway bluntly concludes, "the legal duty to protect refugees is understood to be neither in the national interest of most states, nor a fairly apportioned collective responsibility." JAMES C. HATHAWAY, THE RIGHTS OF REFUGEES UNDER INTERNATIONAL LAW 1000 (Cambridge Univ. Press 2005).

(21.) Though, more recently, both the Australian and the Danish prime ministers have openly suggested that the Convention ought to be renegotiated.

(22.) See THOMAS S. KUHN & IAN HACKING, THE STRUCTURE OF SCIENTIFIC REV OLUTIONS 43 (Univ. of Chicago Press, 4th ed., 2012).

(23.) See Gammeltoft-Hansen, supra note 8.

(24.) See UNHCR, Advisory Opinion on the Extraterritorial Application of NonRefoulement Obligations under the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol (Jan. 26, 2007), www.unhcr.org/4d9486929.pdf; UNHCR Exec. Comm. of the High Commissioner's Programme, Conclusion on Protection Safegaurds in Interception Measures No. 97 (LIV)-2003, U.N. Doc. A/AC.96/987, at 1 a(iv) (Oct. 10, 2003); Haitian Center for Human Rights v. United States, Case 10.675, Inter-Am. Comm'n H.R., Report No. 51/96, OEA/Ser.L/V/II.95, doc. 7 rev. at 550 (1997); J.H.A v. Spain, U.N. Comm. Against Torture, CAT/C/41/D/323/2007 (2007); Hirsi Jamaa and Others v. Italy, App. No. 27765/09, 2012 Eur. Ct. H.R. 1, at 1134135(2012), available at http://hudoc.echr.coe.int/eng-press?i=003-3856359-4434185.

(25.) See generally Gammeltoft-Hansen & Hathaway, supra note 4; Andre Nollkaemper & Dov Jacobs, Shared Responsibility in International Law: a Conceptual Framework 34 MICH. J. INT'L L.359 (2012); U.N. Int'l L. Comm'n. Articles on Responsibility of States for Internationally Wrongful Acts, Report on Fifty-Third Session, U.N. Doc. A/56/10, at [paragraph] [paragraph] 16, 47 (2001).

(26.) In relation to derivative responsibility and the law of complicity, see generally MILES JACKSON, COMPLICITY IN INTERNATIONAL LAW (Oxford Univ. Press 2015); V Lanovoy, Complicity in an Internationally Wrongful Act, in. PRINCIPLES OF SHARED RESPONSIBILITY IN INTERNATIONAL LAW: AN APPRAISAL OF THE STATE OF THE ART 134ff (A Nollkaemper and I Plakokefalos, eds., Cambridge Univ. Press 2015); HELMUT PHILLIPP AUST, COMPLICITY AND THE LAW OF STATE RESPONSIBILITY (Cambridge Univ. Press 2013).

(27.) Karanja Kibicho, /Is the Kenyan Minister for National Security, Here's Why I'm Shutting the World's Biggest Refugee Camp, THE INDEPENDENT, May 9, 2016.

(28.) The EU thus saw a 470% increase in arriving asylum-seekers by sea from 2014 to 2015, up from a 360% increase the year before. Philippe Fargues & Anne di Bartolomeo, Drowned Europe, Eur. Univ. Inst. (Apr. 2015), available at Cadmus. eui.eu/bitstream/handle/1814/35557/mpc_2015_05pb.pdg?sequence=l; International Missing Migrants Project, Organization for Migrants, http://missingmi grants.iom.int. (last updated Sept. 27, 2016).

(29.) European Council Press Release 144/16, E.U.-Turkey Statement (Mar. 18, 2016), available at http://www.consilium.europa.eu/en/press/press-releases/2016/03/18eu-turkey-statement/.

(30.) In 2015, 1,015,078 people arrived in Europe by sea and 3,770 died en route. By July 2016, 237,173 had arrived, while 2,896 had perished. Refugees/Migrants Emergency Response--Mediterranean, UNHCR, http://data.unhcr.org/mediterranean/regional.php (last visited Sept. 25, 2016).

(31.) Refugee Council of Australia, 2015-16 Federal Budget in Brief: What it Means for Refugees and People Seeking Humanitarian Protection (Aug. 2015), available at www.refugeecouncil.org.au/wp-content/uploads/2014/08/2015-16-Budget.pdf.

(32.) Trattato di Amicizia, Partenariato e Cooperazione tra il Governo della Repubblica italiana e la Grande Giamahiria Araba Libica Popolare Socialista (Treaty of Friendship, Partnership and Cooperation between the Italian Republic and the Great Socialist People's Libyan Arab Jamahiriya], It.-Libya, Aug. 30, 2008, at 1 (ratified by Legge 6 febbraio 2009, n. 7, G.U. Feb. 18, 2009, n. 40 (It.)).

(33.) EUROPEAN PARLIAMENT DIRECTORATE-GENERAL FOR INTERNAL POLICIES, COST OF NON-SCHENGEN: THE IMPACT OF BORDER CONTROLS WITHIN SCHENGEN

ON THE SINGLE MARKET, 8-9 (May 2016), available at www.europarl.europa.eu/ RegData/estudes/.

(34.) Thus, 2015 saw a record number of asylum applications numbering two million. See Global Trends: Forced Displacement in 2015, UNHCR, at 3 (June 20, 2016), available at www.unhcr.org/statistics/unhcrstats/576408cd7/unhcr-global-trends-2015 .html.

(35.) James C. Hathaway, A Global Solution to a Global Crisis, 1 Eur. Papers 93, 93-99 (2016) available at http://europeanpapers.eu/en/system/files/pdf_version/EP_eJ_ 2016_1_8_Agenda_James_C_Hathaway.pdf.
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Title Annotation:Symposium on the Refugee Crisis
Author:Gammeltoft-Hansen, Thomas; Tan, Nikolas Feith
Publication:Suffolk Transnational Law Review
Date:Sep 22, 2016
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