The need to establish and enforce the liability of refugee generating entities: Addressing the normative lacuna in the intersection between International Refugee Law and the Law of International Responsibility

With the recent refugee ‘crisis’, the liability for refugee-generating once again becomes a matter of concern in international law. When situations in a few countries are generating the majority of the global refugee population, it is pertinent to ask ‘who are generating refugees in these countries,’ ‘do they bear liability of any kind under international law for generating refugees,’ and ‘if yes, are there legal mechanisms in place to enforce the liability.’ This paper aims to address these questions. Despite scholarly endeavors dated back to as early as 1939, positive international law in its current shape still seems unable to establish the liability of refugee-generating entities. No treaty spells out such liability, and it seems hard to argue that such liability exists in customary international law. This highlights a normative lacuna in the intersection between International Refugee Law and the Law of International Responsibility, as neither the framework of State responsibility nor that of transboundary harm can be applied seamlessly to refugee-generating situations. To address this normative lacuna, this paper argues for a new way to establish international liability of refugee-generating entities based on Louis Henkin’s theory of ‘constitutional international law’. After defining ‘refugee-generating entities’ by reference to Article 1(A)(2) of the 1951 Convention relating to the Status of Refugees, this paper envisions possible mechanisms under domestic and international law to enforce the liability of refugee-generating entities and appraisals their practicality and desirability.