Allocating responsibility for refugee protection to states : actual and potential criteria in international (case) law

This article analyses legal criteria adopted by international law and jurisprudence for allocating and attributing responsibility to States, and evaluates which are or have the potential to be applicable in international refugee law. Global numbers of persons fleeing violence and persecution are high, but refugees unequally distributed among States. Some countries are overburdened. This is due to natural factors and migrant aspirations, but also deliberate migration policies. Quality of and access to protection are under pressure, fundamental refugee and human rights increasingly threatened. International refugee law does not provide for a specific distribution mechanism or criteria to allocate responsibility for refugee protection to States. The traditional attribution of legal responsibility in international law on the basis of jurisdiction does not suffice to distribute those burdens equitably. This article looks at relevant case-law to identify alternative criteria that have the potential of allocating responsibility for refugee protection to States beyond their borders. Besides assessing the potential of extraterritorial jurisdiction, the article explores two interesting responsibility allocating candidates: the principles of international cooperation and solidarity, and the Responsibility to Protect-doctrine