Solidarity as Normative Rationale for Differential Treatment: Common but Differentiated Responsibilities from International Environmental to EU Asylum Law?

Netherlands Yearbook of International Law: 2020: Global Solidarity and Common but Differentiated Responsibilities (2022 Forthcoming)

U. of Westminster School of Law Research Paper

39 Pages Posted: 14 Mar 2022

See all articles by Elizabeth Mavropoulou

Elizabeth Mavropoulou

University of Westminster

Lilian Tsourdi

Maastricht University - Faculty of Law

Date Written: March 12, 2022

Abstract

The principle of common but differentiated responsibilities (CBDR), though a product of the international environmental law of the 1990s, has crept into the language of most, if not all, areas of common concern at UN level. In this chapter, we trace the development and evolution of the principle of CBDR as an expression of fairness and solidarity in international law and focus on its application in international environmental law. We then further explore whether a logic of CBDR is now reflected in the recent global refugee policy instruments at UN level and whether traces of the principle can be found in EU asylum policy and the Common European Asylum System. We conclude that a logic of CBDR permeates recent asylum and refugee policy at UN and EU level, albeit manifested and operationalised in distinct ways. In the first instance at UN level, although a version of CBDR vaguely frames the non-binding responsibility sharing arrangements under the Global Compact on Refugees, it is not explicit or concrete to help us understand what a common responsibility to protect the refugees entails concretely and how such common responsibility ought to be equitably shared. Failing to explicitly debate and adopt the principle even in a soft law instrument, the Global Compact on Refugees missed the opportunity to collectivise the responsibility to protect refugees and meaningfully address the perennial gap of the Refugee Convention. In the second instance, at EU asylum policy level, the legislative developments do reflect a logic of differentiated contributions in what is conceived as a common responsibility. However, differentiation is not serving a conception of solidarity and fair sharing, but merely political expediency by endorsing certain states’ reluctance to engage with refugee protection.

Keywords: common but differentiated responsibilities, solidarity, environmental law, refugee law, responsibility sharing, EU asylum policy, common European asylum system

Suggested Citation

Mavropoulou, Elizabeth and Tsourdi, Lilian, Solidarity as Normative Rationale for Differential Treatment: Common but Differentiated Responsibilities from International Environmental to EU Asylum Law? (March 12, 2022). Netherlands Yearbook of International Law: 2020: Global Solidarity and Common but Differentiated Responsibilities (2022 Forthcoming), U. of Westminster School of Law Research Paper , Available at SSRN: https://ssrn.com/abstract=4056136 or http://dx.doi.org/10.2139/ssrn.4056136

Elizabeth Mavropoulou

University of Westminster ( email )

4 Little Titchfield Street
London, England W1W 7UW
United Kingdom

Lilian Tsourdi (Contact Author)

Maastricht University - Faculty of Law ( email )

P.O. Box 616
Maastricht, 6200
Netherlands

HOME PAGE: http://https://www.maastrichtuniversity.nl/p70065508

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