Characterising State-Effectuated Refugee Outflows as Transboundary Harm

Whether generating a refugee outflow is itself unlawful has never been settled, and arguments for state responsibility usually die at that question. This paper, given at the Senior Advocate Ozair Farooq Memorial Law Conference, goes around it.

The move is to stop asking whether the originating act was illegal and start asking who bears its cost. Characterise a state-generated refugee outflow as transboundary harm and an established body of law attaches: a state whose activities cause significant harm across a border owes compensation to the affected state, and the claimant need not establish wrongfulness in the originating conduct at all.

On that footing the state that generates the outflow owes the host state compensation for the material and socioeconomic burden of sheltering the people it displaced. Myanmar and Bangladesh are the worked illustration.

Whether the characterisation holds is arguable, and the paper argues it rather than assuming it. What it demonstrates is that a question stuck for decades can sometimes be moved by changing which body of law is asked.