Dr. Annick Pijnenburg, Assistant Professor in International and European Law, Radboud University Nijmegen (The Netherlands)
The great majority of refugees are hosted in neighbouring countries in the Global South, with only a small proportion travelling to wealthier countries in the Global North. This is due in part to the fact that countries like the USA, Australia and European countries implement externalisation policies that prevent refugees from reaching their borders. As a result, many refugees are contained in the Global South where they live in dire circumstances. This post discusses the human rights obligations of states that implement externalisation policies as regards the socio-economic rights of refugees affected by such policies. As the 1951 Refugee Convention is largely silent on state obligations towards refugees outside their territory, and externalisation also affects people on the move who are not refugees, this post focuses on international human rights law rather than refugee law.
Externalisation and its effects on the socio-economic rights of refugees
The Refugee Law Initiative Declaration on Externalisation and Asylum defines externalisation as ‘the process of shifting functions that are normally undertaken by a State within its own territory so that they take place, in part or in whole, outside its territory’ (para 2). In the context of migration control and asylum, externalisation increasingly involves destination countries cooperating with neighbouring states, especially countries of origin and transit. Examples of such cooperation abound. In the Americas, consecutive US administrations have cooperated with Mexico to prevent the arrival of Central American asylum seekers at the US border (see here and here). In the Asia Pacific, Australia cooperates with Indonesia to prevent asylum seekers from travelling to Australia to seek asylum. Those that undertake the dangerous sea crossing are either returned to Indonesia or transferred to regional processing centres in Papua New Guinea and Nauru (see here). In the Mediterranean, the EU and its Member States cooperate with neighbouring countries like Morocco, Libya and Turkey, as well as countries further away, like Niger, to prevent irregular arrivals in the EU (see here).
Externalisation of migration control can take various forms. A common feature is for Global North states to provide equipment, funding and training to neighbouring Global South states that are expected to prevent the onward travel of refugees. The Libyan Coast Guard, that was largely set up and continues to function with European support, is an example in point. In some cases, destination states transfer asylum seekers to another state, as Australia did with Nauru and Papua New Guinea. Most recently, as the 2021 Nationality and Borders Bill provides for offshore asylum processing, in April 2022 the UK signed a memorandum of understanding with Rwanda that foresees the transfer of asylum seekers from the UK to Rwanda, although the first flight has been cancelled pending the outcome of legal challenges.
The negative impact of externalisation on refugees has received much attention, especially as regards its consequences for the possibility to seek asylum (see for instance here, here and here). Indeed, preventing refugees from reaching the territory of a state that could provide international protection raises questions in terms of the right to asylum, the principle of non-refoulement, and related rights, such as the right to leave a country. Externalisation also risks causing human rights violations separate from the issue of access to international protection, such as the right to life – notably as regards migrant drownings at sea. An oft-cited example of the detrimental human rights consequences of externalisation is the plight of refugees returned to Libya, who risk being killed, tortured, raped, and enslaved in Libyan detention centres.
However, another aspect of externalisation has received comparatively little attention: its impact on the socio-economic rights of refugees. Yet many refugees who live in countries like Mexico, Libya and Indonesia live in dire circumstances: they lack access to an adequate standard of living, for instance because they live in tents or on the streets. They often only have access to the informal labour market, as a result of which they risk being exploited by their employers. Children cannot always go to school and child labour remains a problem. In turn, these difficult circumstances and the lack of perspectives risk causing or exacerbating both physical and mental health issues, which are further compounded by refugees’ limited access to health care in host countries.
State obligations under international human rights law
The foregoing raises the following question: to what extent do destination states have an obligation to contribute to realising the socio-economic rights of refugees affected by externalisation? Under international human rights law, in principle each state has the obligation to realise the human rights of the persons on its territory. Therefore, host states like Mexico, Libya and Indonesia have the primary obligation to realise the socio-economic rights of refugees on their territory. Yet, given the limited ability of these states to ensure an adequate standard of living for their own citizens as well as refugees, the question arises to what extent destination states, whose externalisation policies contribute to the latter’s plight, have an obligation to contribute to realising their socio-economic rights. In other words, can we assume that, by keeping refugees outside their territory, destination states can also evade their obligations towards them?
States can also have human rights obligations towards persons outside their territory, provided they are within their jurisdiction. For instance, Article 2(1) of the International Covenant on Civil and Political Rights (ICCPR) requires a state party ‘to respect and to ensure to all individuals within its territory and subject to its jurisdiction’ the rights listed in the Covenant. Thus, the key question is: when does a state exercise jurisdiction over persons outside its territory, and what is the scope of its obligations in that case? More specifically, in the context of externalisation: does externalisation create a jurisdictional link between a destination country in the Global North and refugees contained in the Global South?
The answer to this question remains unclear and depends on how we approach the jurisdiction question. Under a more restrictive understanding, favoured by the European Court of Human Rights, jurisdiction is linked to effective control over a person or territory. However, jurisdiction can also be triggered by the extraterritorial effects of a state’s actions or omissions. Recent pronouncements of the United Nations Human Rights Committee and the Committee on Economic, Social and Cultural Rights (CESCR) suggest that a jurisdictional link can exist if a state can take reasonable measures to avoid reasonably foreseeable human rights violations abroad. At a general level, then, it is possible that externalisation triggers the human rights obligations of Global North states towards refugees contained in the Global South. The scope of these obligations is more limited than towards persons on their own territory, since states cannot be expected to realise all human rights of all human beings everywhere. Rather, when designing and implementing externalisation policies, destination states must arguably take reasonable measures to avoid reasonably foreseeable human rights violations.
Moreover, as regards socio-economic rights, states may also have broader obligations of international assistance and cooperation. Indeed, whereas the ICCPR refers to ‘territory’ and ‘jurisdiction’, its sister treaty, the International Covenant on Economic, Social and Cultural Rights provides that ‘[e]ach State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical’ (Article 2(1)). In other words, it refers to ‘international assistance and cooperation’ rather than to ‘territory’ or ‘jurisdiction’. This suggests that a state’s human rights obligations are not necessarily restricted to its territory or situations where there is a jurisdictional link between the state and a person abroad. Rather, states are explicitly required to realise socio-economic rights ‘through international assistance and co-operation’.
It remains unclear what obligations of international assistance and cooperation entail exactly: who are the duty-bearers and rights-holders of these obligations? What is their nature and scope? According to the CESCR, the obligation to provide international assistance and cooperation ‘is particularly incumbent upon those States which are in a position to assist others’ (see here, para 14). Thus, it is arguable that the Global North, on account of its higher level of economic development, may have an obligation to help the Global South realise socio-economic rights. More specifically, in the context of externalisation, it is possible that Global North countries may have an obligation to contribute to realising the socio-economic rights of refugees contained in the Global South. However, the exact nature and scope of this obligation must be clarified further.
Externalisation results in refugees being contained in the Global South, where they are at risk of suffering violations of their socio-economic rights, such as the rights to an adequate standard of living, health and education. While states that host refugees have the primary obligation to realise their socio-economic rights, the fact that they do not reach the territories of Global North states that implement externalisation policies does not mean that the latter have no obligations towards them. Indeed, under international human rights law, they can have the obligation to contribute to realising the socio-economic rights of refugees. That is the case if a jurisdictional link exists between the state and a refugee and possibly also more generally in light of the obligation to realise socio-economic rights through international assistance and cooperation. Therefore, policy makers in the Global North that design externalisation policies should bear in mind that such policies must comply with their obligations under international human rights law, including socio-economic rights.
This blog post is based on Annick’s PhD thesis: Pijnenburg A (2021) At the Frontiers of State Responsibility: Socio-economic Rights and Cooperation on Migration (Intersentia 2021).
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