Since the summer of 2020, the Denmark Government has refused to renew the temporary residence permits it initially issued to many Syrian refugees. This decision came shortly after a study was released by the Danish Immigration Services (DIS Report, 2019) that classified Damascus, the Syrian capital, as a safe place for refugees to return. Of the 270 refugees denied a renewal of residency status, the Appeals Board has, as of May 2021, decided to uphold the denial of renewals to at least 39 people. These uprooted Syrians now find themselves at square one, as years of effort  spent  reconciling  their lives with conflict and integrating  into  Danish society have been completely undone. For a few unfortunate refugees, the devastating impact of this policy is the loss of their family unit. While the security situation has improved in Damascus, many parts of Syria remain unsafe to return, as the DIS Report notes. This has resulted in the government accepting renewal applications for few members of a family while rejecting others, and in some cases rejecting the application of only one family member. Familial unity, which has been the entire bedrock of the European asylum and refugee policy to date, has been shaken with this change in Denmark’s policy.

However, the Denmark Government has remained adamant that it will retain its new policy, despite rising internal and international pressure to revisit the issue. In response to a group of European Parliamentarians expressing their grave concern over this issue, the Foreign Minister wrote that Denmark’s decision to initially grant temporary permits to Syrian refugees was made with the understanding that Denmark might revoke these permits if and when the situation in Syria improved. Obviously, the first line of questioning from civil society has been to demand Denmark sustain its claim that parts of Syria are actually safe for refugees to return. Although the conflict may have ended, humanitarian NGOs (including the Danish Refugee Council (DRC) and Amnesty International) believe that this is by no means an indicator of safe living conditions. The possibility of retaliation against refugees by the Syrian Government remains a very real threat. The credibility of the DIS Report has also begun withering away, now that 11 out of 12 sources cited by the DIS Report and used as a basis for its assessment of conditions on the ground in Syria have revoked their statements, and further clarified that their statements were not intended to suggest the conclusions drawn by DIS. 

Procedurally, too, this decision falls afoul of the EU Directive 32/2013, Common Procedures for Granting and Withdrawing International Protection. Provisions outlined in Article 37 require EU Member States to consider certain sources of information – especially the UNHCR and EASO – when designating a place as a “safe” country of origin. Denmark’s DIS Report did not consider these sources and instead took a contrary stance to both the UNHCR’s and EU’s consistent views on the Syrian situation. 

In June, Denmark also passed an amendment to its domestic law regarding asylum seekers. The amendment allows the Danish government to transfer asylum seekers to a non-European country until such time as their asylum applications are deemed “pending.” Some have speculated that Denmark may have negotiated a transfer arrangement with Rwanda, which would lead to the East African country hosting Denmark’s refugees. 

Raising Rhetorical Questions

The Danish policy on refugees is controversial, and in all probability will find itself challenged before a court of law. But the plight of Syrian refugees begs for a broader outlook, one that calls into question the remedial function of international law and its ability to promote democratic governance resulting in fair outcomes. The Syrian conflict is marked with failures by the international community to contain the conflict. Collective security strategies failed due to a lack of consensus, and bilateral negotiations came in with results that proved to be too little, too late. Impunity was allowed to reign large even in the face of grave human rights violations, use of chemical weapons on civilians, torture, and violence against humanitarian aid workers. Given that all warring parties in the conflict also systematically committed war crimes and other grave violations of human rights, it was a matter of legal obligation – under Art.41 of the Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA) – for all States and the UN to display international cooperation to end the violations. Needless to say, the UN failed to find the means to operationalize this obligation. With weak enforcement rules, a legal system invites criticism about its legitimacy. Now in the post-conflict period, international law does not impose any additional responsibility for state actors to accommodate the impacts of the disastrous conflict. Such legal rules allow countries like Denmark to expel Syrian refugees without being obligated to remedy the impact that the international failure to cooperate had on the refugee crisis. 

Does a general obligation on all states to shelter the refugees until such time as they can safely return to their country accurately reflect the role of a few dominant resourceful nations during the conflict? The inflow of refugees fleeing conflict-related risks is a recurring event that cannot be resolved through temporary responses. Creating a one-size-fits-all kind of obligation under an international convention may also not be an appropriate approach for ongoing refugee crises.

With the recent turn of events in Afghanistan, humanity is staring down another potential refugee crisis, and we should be compelled to rethink the current model of international rules that aim to resolve each individual refugee crisis as an isolated social problem. The USA has already announced that it will transfer 2000 Afghan refugees to Uganda, a country that already holds 1.3 million refugees and which had absolutely no role to play in the Afghan war. One would be well within their limits to ask the moral question: why does the USA not owe this much to the Afghans after the last 20 years?

Justifying a New Approach 

With increased emphasis on the rights of individuals in International Law, the international legal system has expanded its domain to regulate the relations between a state and its citizens. Much like constitutional law, international law creates a rights-obligation framework between states and individuals. However, international law lacks the central law-making and executive  bodies characteristic of a domestic system. It ultimately leans upon states to execute the obligations they have agreed to uphold, and typically defines the rights of individuals as obligations of the administering state. The International regime on Refugee Law, too, attempts to empower individuals – but does so through obligations imposed on states. 

This approach of expressing rights as mere obligations in international law-making impacts the content of international law. Obviously, a state cannot be obliged to every individual in the world; creating filters between states and those to whom they owe varying obligations then becomes a preliminary requirement in international law-making. For instance, human rights obligations in almost all instruments are limited by the concept of jurisdiction of a given state. In refugee law, obligations for the accepting state begin post-conflict, when refugees begin to be admitted into the country. The state’s obligations are thus temporally limited, and exclude any potential obligations imposed on a state due to its action – or inaction – as the conflict began and grew in intensity. In environmental law, chain of causality performs the same limiting function, and states are not responsible for any remote harm caused. 

While these limitations are imperative to ensure states are not overburdened, they can lead to a legal system that deals with singular situations in a fragmented manner, which further facilitates fragmentation. The case of Syrian refugees in Denmark is a prime example. A refugee carries within themself the horrors and injustices of a conflict even when they are admitted in a recipient country. However, the current International Refugee Law is limited in its attempt to impose a set of obligations on recipient states for ensuring a smooth stay of refugees after their arrival in the country. The conduct of recipient states during the conflict, which contributes directly or indirectly to the security situation in conflict zones for the civilians and potential future refugees, are not at all reflected in the form of obligations towards refugees. Denmark had a responsibility, just as so many other countries did, when the international community failed to prevent the consistent violations of human rights and international law occurring in a pre-conflict and conflicted Syria. These countries could and should have assisted 

Perhaps if a state knew additional obligations would be imposed upon it if it did not act in a pre-conflict era, it would be more inclined to provide the aforementioned assistance. But as the framework currently stands, as long as Syrian citizens stayed in Syria, obligations were owed to them solely by the Syrian Government. When the same Syrians left the nation and reached Denmark, these obligations were shifted – in part – onto Denmark. Neither Denmark nor any other state owed any obligation to Syrians as long as relations between Syria and Syrian citizens remained intact, nor did Syria owe any obligations after the Syrians’ establishment of relations with Denmark. This form of temporal limitation treats the social phenomenon of armed conflict as two separate events. 

However, there are obligations which states external to a conflict could adopt that would take hold before refugees are forced to flee their homeland for other countries, and which would serve to limit the post-conflict obligations they currently bear. These include creating safe pockets for civilians in conflict areas; pushing the conflict to less or unpopulated spaces; providing prompt and complete humanitarian assistance to displaced people by providing food, medicine, and shelter; building capacity of NGOs and local civil society to assist in protective and preventive action; demanding a peace agreement or a ceasefire; organising political discussions between warring factions to address the causes of the conflict; limiting supply of arms and flow of money; and pressing for increased monitoring and accountability for all actors involved. Cooperation in some areas will be more important than others, given the context. However, unfortunately, a state’s obligations towards refugees post-conflict are not relative to its cooperation efforts, or lack of cooperation efforts, during the conflict. Rules for managing refugees are codified under the Refugee Convention of 1951 and an Optional Protocol to this convention, while the international norms for cooperation are typically found under the UN Charter or Articles on State Responsibility, or the emerging norm of Responsibility to Protect.

This insulation of laws from each other has laid the foundation for the deteriorating conditions we see refugees facing today. The current law cannot answer the question of why the USA does not have any greater obligation than any other country to the Afghan refugees, for example. Despite the USA’s involvement in the Afghan conflict, the current framework cannot impose anything more than a basic moral responsibility. Similarly, Syrian refugees cannot demand a right to a stable livelihood from the international community for failing to end the illegal and inhumane actions of the Syrian government and non-state actors in their country. And to the same point, Yemeni refugees cannot seek justice in the form of a right to rebuild critical infrastructure and their economy from Saudi Arabia or Iran, who are both guilty of funding the civil war in Syria.  

By requiring only minimum obligations to be respected, international law chases its tail without actually marching toward a solution to the refugee crisis. Due to the limited rights they enjoy at the discretion of a state’s determination of threat levels in their country of origin, refugees are forced to live with uncertainty regarding their status, which contributes to difficulty integrating into any new society. This also exacerbates the risk of radicalization, increases crime rates, contributes to deepening the actual causes of the conflict, and encourages a lack of economic contribution by refugees.

The first step in the process of broadening obligations under refugee law is to re-work the position this legal regime occupies. Refugee law must move beyond the function of regulating the intake of refugees to also perform the function of carrying forward the preventive and protective responsibility of the international community in times of conflict. As stated above, this could materialize in the form of imposing additional responsibility for refugees on specific states. 

Some of these obligations can be directed toward the prime actors in the conflict, shaped in the form of granting rights to refugees applying for permanent residency permits in those countries. This would assist individuals in integrating into society again. Such states could also be required to establish programs within the conflict nation that are aimed at redeveloping economic lifelines, education and skill development centers, among other things. Some regional conflicts may even require cooperation among regional powers. Where such necessary cooperation is lacking, it would be desirable to obligate neighbouring countries to accept and integrate refugees into their countries or arrange for a safer third country for them to enter. Neighbouring countries are often the ideal places for refuge due to their accessibility and their ethnic, cultural and linguistic similarities to the refugees’ homeland. 

This would not only push the normative boundaries in the field of refugee law and international cooperation, but also provide better compliance incentives to states to respect their existing international obligations. Violations of arms trade deals, intervention through use of irregular mercenaries, financing non-state insurgent groups, aiding or abetting unlawful conduct in a conflict, or simple failure to cooperate to end violations of peremptory norms would not just result in compensatory consequences under a treaty or reputational harms. Instead, the states would have to share the burden of the influx of refugees commensurate to their respective contributions to helping end the crisis. Compliance with primary obligations would be in the interest of such states in order to avoid bearing the secondary obligations under refugee law. 

This strategy to integrate different regimes of international law has often been used by small, weaker states against developed, dominant ones to curtail the side-effects of fragmentation of international law and ensure that international legal norms are representative of their interests. As Benvenisti and Downs effectively argued in their article, “The Empire’s New Clothes: Political Economy and the Fragmentation of International Law,” it is in the interest of powerful states to create a highly specialised framework of laws where each social event is regulated under a different regime of law. Smaller, weaker nations that have diverse priorities find it difficult to form a consensus on common interests when narrowly focused agendas are put up for negotiations. This increases the transaction cost of negotiations for smaller nations and compounds the bargaining power of more well-resourced states. A way out for smaller nations is to bring in the norms from a favorable regime and read them into the unfavorable set of laws.

The history of construction and evolution of norms under the TRIPS Agreement serves as a common example of use of this strategy in international relations. For a long time, smaller states struggled to inform TRIPS Agreement representatives of their concerns, or to carve out exceptions to the IP regime. A breakthrough was finally achieved when alternate regimes and institutions like the Convention on Biodiversity, the International Treaty on Plant Genetic Resources for Food and Agriculture, the ICCPR, and the ICESCR were used to influence the norms under the TRIPS Agreement. 

Smaller nations may look to use the same strategy to shift the balance of scales under present-day refugee law and create a regime that reflects their concerns as well. Currently, 86% of the refugees under the UNHCR mandate are hosted by developing nations, so they have a strong interest and right to be represented under the framework. It is also the developing and least developed nations that are most likely to face conflicts, including situations that lead to refugee crises. Finding lasting solutions to handle refugee issues is imperative for the interests of such nations and its people. 

Conclusion

Denmark’s shift in its refugee policy highlights the ill effects of the fragmented nature of refugee law. Yesterday’s citizens who have become today’s refugees deserve an international legal framework that addresses all factors of conflict and performs at least a remedial function for their communities during and following conflicts. But this would require refugee law to adopt several new concepts and tools, including a commitment to states managing their refugee crises and an imposition of specific measures to minimize conflict. The means by which these additional responsibilities should be enforced would require further discussion and debate; this blog intends only to pitch an integrated system of laws as the more appropriate structure for promoting international justice.

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Rohan Jain graduated from the National University of Juridical Sciences in India in 2020. He has served as a Chamber Intern at the United Nations International Residual Mechanism for Criminal Tribunals at the Hague, and holds a keen interest in International Criminal Law and International Humanitarian Law.