Burden-Sharing Principle

Intro
 Most of the refugee problems today occur in Africa, Middle East and South Asia and the
impact of the burden of the refugees has to be borne mostly by the neighbouring
countries who themselves are struggling to manage their resources.
 The failure of the states to follow the principle of burden sharing
 The 1951 Convention did not address the issue of admission to the country and the right
to seek asylum. It failed to properly apportion the burden and responsibility sharing
between the states.
 The 1951 Refugee Convention relating to the status of refugees and the Protocol of 1967
are the core regime of the refugee protections. The refugee regimes are in consonance
with the Universal Declarations of Human Rights, 1948. The international regime also
supports and cooperates with the Office of United Nations High Commissioner of
Refugees (UNHCR).
 The core issue of the influx of refugee movements is caused by the inequality in the
world economy and the government failure to curb the issue. Issues such as security,
terrorism, culture conflicts and transnationalism arise out of the refugee crisis.

The need for burden-sharing

Rationale:

 A mass influx may place heavy burdens on certain countries, and a satisfactory solution
could not be achieved without international cooperation.
 States should, within the framework of international solidarity and burden sharing, take
all necessary measures to assist states that have admitted a mass influx of refugees.

Consequences of refugee and returnee movements:

 There is increasing recognition of the extent to which large refugee populations may
jeopardize the development efforts of developing nations.
 Some of the largest refugee concentrations are found in countries that already suffer from
weak economies and poor infrastructure, as well as widespread poverty
 National and local authorities in these countries are often compelled to divert
considerable resources and manpower to deal with issues relating to these populations,
detracting from the pressing demands of their own development.

Economic:

The presence of large refugee/returnee populations leads to substantial demands on food, energy,
transportation, employment and public services such as education, health and water facilities
The concept of the burden sharing has been present in the recital 4 of the Preamble of 1951
Refugee Convention. The suggested parameters of UNHCR are as follows:

1) Multilateral or bilateral actions, regional or universal cooperation with the UNHCR.

2) Strengthening the host states capacity so that it can effectively provide the asylum.

3) The existing mechanism should also be strengthened and arrangements for necessary funds.

UNHCR has provided the following recommendation regarding the burden sharing:

 Burden sharing should be followed in all the national, international and regional and
perspective aspect.
 People trafficking/people smuggling should be recognized as an emerging issue in the
concept of burden sharing.
 Temporary evacuation or permanent settlement can be a positive element in the strategy
of burden sharing.

Challenges of burden sharing:

 It can be difficult to determine how to fairly distribute the costs of burden sharing.
 It can be difficult to get countries to agree to participate in burden sharing arrangements.
 It can be difficult to ensure that the resources provided through burden sharing are used
effectively.

Relationship with International Law,

International Human Rights Law and
Municipal Law
International humanitarian law and international human rights law

 International humanitarian law and international human rights law are two distinct but
complementary bodies of law.
 They are both concerned with the protection of life, health and dignity.
 IHL applies in armed conflict while human rights law applies at all times, in peace and in
war.
 Sometimes, they overlap and provide the same or similar protections. For example, both
IHL and IHRL prohibit torture, arbitrary detention, and discrimination.
 IHL and IHRL may provide different or even conflicting protections. For example, IHL
allows for the use of force in self-defense, while IHRL generally prohibits the use of
lethal force except in very limited circumstances.
  International human rights law allows a State to suspend a number of human rights if it
faces a situation of emergency. IHL cannot be suspended (except as provided in Article 5
to the Fourth Geneva Convention).

Similarities

 IHL and international human rights law still share "a common nucleus of non-derogable
rights and a common purpose of protecting human life and dignity"
( Abella v. Argentina)
 IHL prohibits the use of certain weapons, such as chemical and biological weapons, that
are indiscriminate and cause unnecessary suffering. IHRL also prohibits the use of these
weapons, and it has been used to hold individuals accountable for their use.
 IHL requires that all persons deprived of their liberty be treated humanely and with
respect for their fundamental rights. IHRL also requires this, and it has been used to
improve conditions in detention facilities.
 IHL protects the rights of women and children in armed conflict. IHRL also protects
these rights, and it has been used to hold parties to conflict accountable for violations of
these rights.

International humanitarian law and municipal law

 International humanitarian law (IHL) is a body of law that aims to protect people who are
not or are no longer participating in armed conflict. It also restricts the means and
methods of warfare.
 Municipal law, on the other hand, is the law of a particular country.
 IHL is binding on all countries that have ratified or acceded to the relevant treaties.
However, there are some cases where IHL may conflict with municipal law. In these
cases, IHL takes precedence.
 IHL can be implemented in municipal law through legislation, Countries can pass laws
that make IHL obligations into domestic law. It can be done through judicial decisions as
well. Courts can interpret and apply IHL in cases that come before them.

Importance of IHL in Municipal law-

 First, it helps to ensure that IHL obligations are respected.

 Second, it helps to create a common understanding of IHL among all countries.
 Third, it helps to ensure that IHL is applied consistently in all cases.

 In the United States, IHL is implemented through a number of laws, including the
Geneva Conventions Act of 1956 and the War Crimes Act of 1996.
 In the United Kingdom, IHL is implemented through the Geneva Conventions Act of
1957 and the International Criminal Court Act of 2001.
 In India, IHL principles have been incorporated into domestic law through various
statutes including the Geneva Conventions Act, 1960 and the Armed Forces (Special
Powers) Act, 1958. These acts provide for the punishment of individuals who commit
war crimes or violate IHL principles during armed conflicts.
  Courts in India have also recognized the importance of IHL and its relationship with
municipal law. In the case of Naga People’s Movement of Human Rights v. Union of
India (1997), the Supreme Court held that IHL applies to all armed conflicts, both
international and non-international, and must be incorporated into domestic law.

Relationship of IHL with International Law

 International humanitarian law (IHL) is part of international law, which is the set of rules
governing the relations between states, their responsibilities and obligations towards each
other in the international system.
 IHL is a branch of international law that complements both international treaty law and
customary international law.
 Its main difference with other branches of international law is that it deals with situations
of armed conflict, while other branches regulate relations between states during
peacetime.
 The relationship between IHL and international law is that IHL is a part of international
law and is binding on all parties to an armed conflict. The International Criminal Court
(ICC) also has jurisdiction to prosecute individuals who violate IHL principles.
 States that have ratified the relevant international treaties must incorporate the principles
of IHL into their domestic legal systems and ensure that violations of IHL are punished
 Many of the rules and principles in IHL are enshrined in international treaties, such as the
four Geneva Conventions of 1949 and their Additional Protocols of 1977.